Transcript: Hearing Q&A with Sen. Dianne Feinstein on closing Guantanamo – July 24, 2013

Partial transcript of Q&A with Sen. Dianne Feinstein (D-Calif.) on “Closing Guantanamo: The National Security, Fiscal and Human Rights Implications.” The hearing was held before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights on July 24, 2013.

Sen. Dianne Feinstein (D-Calif.):
…Isn’t it true that some of the 80 Gitmo detainees who have not been cleared for transfer, now as you’ve spoken, can only be prosecuted in a federal criminal court because the charges of conspiracy and material support to terrorism are no longer available in the military commission? Is that not correct?

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
That is correct, ma’am.

Sen. Dianne Feinstein (D-Calif.):
So what we are saying is for those, if there is no other alternative prosecution in a federal court, they remain without or trial ’til the end of time?

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
Let me clarify, ma’am. Material support for terrorism and conspiracy is a charge that can be charged in federal crime. So it’s not something that can be charged in a military commission but is a charge that is available to the federal court.

Sen. Dianne Feinstein (D-Calif.):
Right, if you’re going to keep them in Guantanamo, they cannot be tried by a military commission, is that not correct?

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
That is correct, ma’am. They cannot be tried.

Sen. Dianne Feinstein (D-Calif.):
The only hope would be they would have to be transferred out to be tried in a federal court.

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
Either that or go through a meaningful process like the PRBs [Periodic Review Board] that are just set up where our country determines at some point they are no longer a threat, in which case they could be transferred if they meet the restrictions…

Sen. Dianne Feinstein (D-Calif.):
…See, I have believed from the days of Col. Davis down there that the military commission is an ineffective instrument. How many cases have they actually tried?

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
There’s been six convictions in the military commission.

Sen. Dianne Feinstein (D-Calif.):
And explain to us exactly what those six convictions are and who is still serving.

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
So the six convictions were for – the names are [David] Hicks, [Salim Ahmed] Hamdan, [Ali Hamza Ahmad Suliman] al Bahlul, [Omar Ahmed] Khadr, [Ibrahim Ahmed Mahmoud] al Qosi, Noor [Uthman Muhammed], and Majid Khan. Because I did not serve on those trials, I don’t know all the details of each case. We do know that Hamdan has since been overturned by the DC Circuit Court for saying, as I described in my testimony, the charge that he was charged – material support for terrorism –

Sen. Dianne Feinstein (D-Calif.):
Maybe I could give them to you then.

Hamdan received a five month sentence. He was sent back to his home in Yemen to serve the time before being released in 2009. In October of 2012, the DC Circuit vacated his conviction for material support because the charge was not recognized as a violation of the international law of war.

Hicks was the first person convicted in a military commission when he entered into a plea agreement on material support on terrorism charges in March of ’07. He was given a nine month sentence which he mostly served back home in Australia.

Al Qosi pled guilty to conspiracy and material support. A military jury delivered a 14-year sentence but the final sentence handed down in February of ’11 was two years pursuant to his plea agreement. He has returned to Sudan at the conclusion of his sentence in July of 2012.

Noor Muhammed pled guilty to conspiracy and material support. A judge delivered a 14-year sentence but the sentence will be less than three years pursuant to his plea agreement. Because of credit for time served, he could be eligible for release to Sudan in December of this year.

One last one, and there’s a point. Omar Khadr pled guilty in a military commission to murder, military support to terrorism, and spying. He was sentenced to eight years but was transferred to a Canadian prison where he will serve out his remaining sentence and be eligible for parole after he serves a third of the sentence.

Now, there are a couple more here and one of them is your client. Here’s my point: The sentences were very few and very low essentially from the military commission.

And I have sat here over the years and wondered what are we doing? Why are we maintaining this farce of a military commission which really doesn’t work?

And we’ve had different people down there trying to make it work but to the best of my knowledge no one has been successful.

Last month, when I was down there, I saw a very…new court room with nothing scheduled to go forward. And it just seems to me that everything down there is so deceiving and is really a kind of untruth about the American way, about the American judicial system, about America’s humanitarian treatment of prisoners. Forced feeding is not humanitarian. And yet it goes on and on and on.

There’s no end to this war yet that we know of. So unless the facility is closed, it would continue to go on.

Do you have any other comment that you’d like to make or Gen. Eaton?

Frank Gaffney, Founder and President of the Center for Security Policy:
…Senator, could I just make a quick comment, if I may?

Sen. Dianne Feinstein (D-Calif.):
Sure.

Frank Gaffney, Founder and President of the Center for Security Policy:
I think this question of whether it’s going to go on and on goes back to the point that I was trying to make earlier – that’s not entirely up to us. The President’s saying that it has to end is only possible if we surrender, if we submit. And specifically this question of will there be more of this, you know, recruiting if we leave it open, I think begs the question compared to what? Does it get worse if you actually have more of these jihadists inspired by our submission, and that’s what I’m concerned about, ma’am.

Sen. Dianne Feinstein (D-Calif.):
I read the intelligence daily. I know what is happening. I also know that Guantanamo contributes nothing positively. It contributes nothing that a federal prison could not do better. It contributes nothing that a federal court could not do better.

Frank Gaffney, Founder and President of the Center for Security Policy:
But if we close it, that may contribute quite negatively is my concern – to inspire our enemy.

Sen. Dianne Feinstein (D-Calif.):
I disagree with you. It will send a signal that finally we have learned something. I saw the people there. The doctor is right. These are not robust specimens any longer. It’s a very different picture, I think,S than people imagine.

Doctor, do you not agree?

U.S. Army Brig. Gen. Stephen Xenakis (Ret.), former Army Medical Corp Officer:
Yes, ma’am.

Frank Gaffney, Founder and President of the Center for Security Policy:
Look at the prisoners coming out of Israel, ma’am, and how they’re regarded and how they inspire jihadism.

Sen. Dianne Feinstein (D-Calif.):
We’re not talking about –

Frank Gaffney, Founder and President of the Center for Security Policy:
No, but it is a similar phenomenon and that’s why I call to your attention this sharia underpinning of the war we’re engaged in.

Sen. Dianne Feinstein (D-Calif.):
I hope someday you go take a look…

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