Washington, DC -- House Armed Services Committee Chairman Ike Skelton (D-MO) delivered the following opening statement at today's Full Committee hearing on the strengths and weaknesses of the Military Commissions Act of 2006 and the future of the detention and interrogation facilities at the U.S. Naval Station, Guantanamo Bay, Cuba. Testifying today were: Mr. William H. Taft, IV, former Legal Adviser, Department of State, and former Acting Secretary of Defense; Mr. Neal K. Katyal, Professor of Law, Georgetown University; Mr. Patrick Philbin, former Associate Deputy Attorney General, Department of Justice; and Ms. Elisa Massimino, Director of the Washington, D.C. Office, Human Rights First.
"Although the Military Commissions Act and Guantanamo are nominally the subjects of today's hearing, our discussion this morning is about much more. The hearing tackles fundamental questions about who we are as a nation and how we treat those who are charged with threatening our security.
"Today's hearing was meant to be the second in a series. Regrettably, yesterday's hearing with the Principal Deputy General Counsel of the Department of Defense and the Chief Defense Counsel of the Military Commissions was postponed because of the ongoing legal proceedings at Guantanamo.
"We are considering these issues with a great deal of seriousness and with a range of perspectives because the questions before us are complex and important. They do no lend themselves to simple answers. An example of this is the Military Commissions Act.
"Last year, when Congress passed this law, I argued that the most important task before the Congress was to design a system that could withstand legal scrutiny and would be found to be constitutional. For that reason, I proposed that we expedite the ability of the courts to review the constitutionality of various provisions of the bill, which I find to be legally suspect.
"There are at least seven potential constitutional defects:
"First, it seems clear to me and many others that the Act may be unconstitutionally stripping the federal courts of jurisdiction over habeas cases.
"Relatedly, the Act may violate the exceptions clause under article III of the Constitution by impermissibly restricting the Supreme Court's review.
"Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention.
"Fourth, the provisions regarding coerced testimony may be challenged under our Constitution.
"Fifth, the Act contains very lenient hearsay rules which rub up against the right of the accused to confront witnesses and evidence.
"Sixth, the Act may be challenged on equal protection and other constitutional grounds for how it discriminates against the detainees for being aliens.
"Lastly, article I of the Constitution prohibits ex post facto laws. That is what this Act may have created.
"Providing for expedited review by the Supreme Court of these seven issues was and continues to be important. If the Justices find that the Military Commissions Act includes constitutional infirmities and the government has already secured convictions, it is likely that known terrorists could receive a "get-out-of-jail-free" card or have their death sentences reversed.
"Permitting hardened terrorists to escape jail time because we didn't do our jobs in Congress to fix the Military Commissions Act would be a travesty of justice to the victims of 9/11, our nation, and the rule of law.
"The bottom line is that we must prosecute those who are terrorists with the full force of the law, but we must also make sure that the convictions stick. Certainty of convictions must go hand in hand with tough prosecutions.
"This brings me to the future of Guantanamo -- an issue on which we act with haste to our own peril. I have no doubt that Guantanamo has become a lighting rod for criticism of American detainee policy and has undermined both our moral authority and our ability to rally necessary support for our policies abroad.
"Secretary Gates, Secretary Rice, Senator McCain, and former Secretary Powell, among many others, reportedly all have pointed to the hole that Guantanamo continues to burn in the international reputation of our country. The morale of our troops overseas and their level of security rely upon how they are perceived in the streets of Iraq, Afghanistan, and elsewhere.
"There are some in Guantanamo who might well be released or remanded to a home or third country. Yet, there is a core group of hardened terrorists who must be detained, tried, and confined for a long time. Determining where to lock up these hard-core detainees over the long-term, so as to ensure that they cannot return to the battlefield, is the question.
"Some have proposed maintaining Guantanamo as a military supermax prison for these extremely dangerous individuals. Others recommend federal correctional facilities, like ADX Florence in Colorado, as the tried-and-tested alternative for them.
"This is a hard call, and I look to the witnesses to help inform the Committee as we grapple with these difficult decisions. I now turn to my good friend and colleague, our distinguished Ranking Member from California, Duncan Hunter, for any opening remarks that he would like to make."