Hunter Opening Statement on Guantanamo Bay Detention Facility and Military Commissions Act

Mar 28, 2007
Press Release

Contact: Josh Holly; 202.226.3988

Washington D.C. U.S. Rep. Duncan Hunter (R-CA), senior Republican on the House Armed Services Committee, delivered the following opening statement at today’s full committee hearing on domestic alternatives to the Guantanamo Bay (GTMO) detention facility and the Military Commissions Act of 2006:

            “Thank you Mr. Chairman.   I want to welcome our distinguished panel of outside experts – I look forward to your testimony.

“Over the last few years this Committee has spent a great deal of time focusing on our Global War on Terrorism detainee policy. The policy that this Committee advanced took into account that the war against terror has produced a new type of battlefield and a new type of enemy.  In the last Congress, this Committee worked hard to pass the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA), ensuring that the United States is able to detain, interrogate and try terrorists—and to do so in a manner that is consistent with the Constitution and the international Laws of War.

“I think we got it right. As we meet today, our detention policy is being executed in accordance with requirements of the DTA, MCA and the recently revised Army Field Manual. Similarly, the long awaited Military Commissions have begun, and accused terrorists, or unlawful enemy combatants, will now be tried for war crimes. A little more than five years after the horrific attacks of September 11th—the day al Qaeda declared a war against the United States—we are finally beginning to see our enemies brought to justice. There were challenges along the way, and through rigorous oversight, the Congress improved, and in many instances, changed the Administration’s policy. But, with the signing of the MCA this past October, we are finally moving forward.

“Mr. Chairman, I’ve taken the time to refer back to the work of the previous Congress to demonstrate that we have worked hard on the issue before the Committee today, and to say we should let the policy the Congress pushed forward in the DTA and MCA have a chance to work. Moreover, we should be careful not to take action that would have a chilling effect on the implementation of these polices.

“I note that today’s hearing is on the future of GTMO, and entertains possible alternatives for GTMO detention and interrogation facilities. We’ve been here before. Through briefings, hearings, and fact-finding visits to GTMO, I know that: 1) the detainees are treated in accordance with U.S. and international law; 2) the facility provides the highest level of security to ensure our enemies do not endanger American lives; and 3) we are able to conduct effective intelligence operations.

“We keep these terrorists in GTMO because we are at war, and under international laws of war, the United States has the authority to detain persons who seek to attack us for the duration of hostilities without charges or trials.  The Supreme Court has recognized this right (Hamdi v. Rumsfeld), and we ought to do nothing to interfere with the President’s ability to execute this right. Simply put, our country needs this tool. Just last week, we brought to GTMO Abdul Malik, a high value al Qaeda operative that was operating in East Africa. Like other detainees at GTMO, he has provided information essential to preventing future al Qaeda attacks.

“In addition to my objections to the premise of this hearing, I am very distressed over the ‘alternatives’ to GTMO that have been suggested today (see page 10 of the Committee memo). The idea that we would import dangerous terrorists, like Khalid Sheikh Mohammed, into American communities is dangerous for at least four reasons:

  • “It will undermine our current detention operations by parceling out the detainees to different facilities across the country, as no single facility can currently house all the GTMO detainees.
  • “Transferring detainees will create an opportunity for these dangerous enemies to recruit, and disseminate their terrorist skills. Moreover, it will increase the threat of an attempted escape and the danger of harm to American civilians if there were such an escape.
  • “It will make these domestic detention facilities prime targets for any terrorist attack that al Qaeda is able to mount within our borders.
  • “Finally, it will have severe implications on our detention policy because it will raise uncertainties about the detainees’ Constitutional rights.

“It is this last implication—increasing the rights of foreign detainees under the U.S. Constitution—that brings me to the other piece of today’s hearing: assessing the Military Commissions Act. As I noted earlier, the Commissions process has recently begun and we are starting to see the fruits of our labor. Just this Monday, David Hicks, accused of providing material support for terrorism, entered a guilty plea. This process is working.

“When the Committee worked on the MCA just last year those with reservations on the other side of the aisle cautioned that the constitutionality of the Act was uncertain. As of today’s hearing, the U.S. District Court for the District of Columbia has ruled that the MCA is indeed constitutional with respect to the habeas corpus issue. Not long after that decision, the DC Circuit held that the MCA conforms with the Constitution, and that the detainees in GTMO do not have a constitutional right to habeas corpus.

“This is encouraging. It demonstrates that the Congress has come up with a system—through the Combatant Status Review Tribunals (CSRTs), the yearly Administrative Review Boards, and the ability to appeal those decisions to the DC Circuit—that provides terrorist detainees with a fair system and sufficient due process. I note that the procedures provided in the CSRTs track with those provided in Army Regulation 190-8 for Enemy Prisoners of War, and in some ways exceed those found in AR 190-8 (submit for the record).  I caution against this Committee and the Congress taking any action amending the MCA, because it will have the effect of delaying or invalidating the Commissions currently underway.

“Let me just end with one simple point. Our terrorist detainee policy was constructed to address a new type of enemy in a new type of war. We have used the international laws of war and the Uniform Code of Military Justice as guide posts in crafting this new policy—because it is fundamentally a war policy. Moving the detainees from GTMO or amending the MCA will have the net effect of holding up the execution of our Global War on Terrorism detainee policy.

“Some would like this result; they would prefer to see terrorists tried under the criminal justice system. This is a false choice. We can’t try terrorists for war crimes if it requires our soldiers to read terrorists Miranda rights or take a battalion of lawyers onto the battlefield. We’ve tried the former approach, and it has backfired. During the trial of the terrorists responsible for the first World Trade Center bombing, the discovery rules of the criminal justice system gave the defense access to information that found its way to al Qaeda camps in Afghanistan. Military Commissions are crucial because they are crafted for the conduct of war by providing procedures flexible enough to account for the constraints and conditions of the battlefield.

“As I hear critics who claim that our domestic courts or domestic prisons can handle this ‘criminal’ problem, I fear that they do not truly understand the enemy we face and the war that we are presently fighting.   We need to heed the words President Lincoln uttered when our country faced another daunting challenge, ‘The dogmas of the quiet past are inadequate to the stormy present... As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.’ (Lincoln's Second Annual Message to Congress, December 1, 1862.)  

“Mr. Chairman, five years into this war we have crafted a new policy tailored for this new conflict that will work—now it is upon us to exercise discretion and give this policy a chance.”