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

Partial transcript of Q&A with Sen. Dick Durbin (D-Ill.) 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. Dick Durbin (D-Ill.):
…Let me start at the beginning. Marion, Illinois is a small town, a small city in southern Illinois. It’s a great town and in a rural setting. And it has a federal prison…Incarcerated in that federal prison are convicted terrorists. I’ve never heard one word from a person living in Marion, Illinois about a fear associated with those terrorists being in that prison.

The notion at Marion and at other places where federal prisons exist is that our federal prison is pretty good. People don’t escape from them, and the community around them feels pretty safe.

So Mr. Gaffney, the notion of sending the worst of the worst to the Florence super-max prison – 30 miles away from any city – in the middle of nowhere, where they can have little or no communication with the outside world, why does that frighten you?

Frank Gaffney, Founder and President of the Center for Security Policy:
Senator, I’m concerned, as I said in my testimony, about several things. One is I think there will be more violence inside the prisons. Secondly, I think that we cannot be sure but I think it’s a safe bet on the basis of experience elsewhere –

Sen. Dick Durbin (D-Ill.):
Excuse me, have you been inside a super-max prison?

Frank Gaffney, Founder and President of the Center for Security Policy:
I have not personally had the privilege of being inside a super-max prison. [Crowd laughter]

Sen. Dick Durbin (D-Ill.):
…I have visited similar facility and most of them are in a very restricted, locked down condition. It is rare for them more than one hour a day outside of detention facility and then usually by themselves. So how do you believe they’ll be able to incite problems within the Florence super-max prison?

Frank Gaffney, Founder and President of the Center for Security Policy:
As they should be…

I’m so glad you asked that, sir. One of the things that’s concerning me is what we’re seeing done in the prisons writ large now – not just the super-max but I think it includes the super-max – and that is this proselytization. The fact that we have imams who are brought in for the purpose of, I believe, catering of course to the Muslim population but in the process also converting and promoting this doctrine which does conduce to violence. There’s no getting around it. It is supremacist in character. So you have to assume that there will be opportunities, especially if we start on, as we’ve done with the shoe bomber, relieving them of some of the limitations on their freedom of movement, then you will get, I think, more violence…

Sen. Dick Durbin (D-Ill.):
…We have now incarcerated in federal prisons [Zacarias] Moussaoui, the person we suspected to be part of 9/11, being held with no hint of problems within the prison or outside of it.

I also want to make something very clear for the record. There are some very patriotic Muslim Americans who do not want to be characterized as part of an extremist movement…[Applause from crowd]

The notion that bringing an imam or someone associated with their religion is an invitation to violent extremism presumes the prison authorities will pay no attention, number one, and presumes everyone brought in as danger…

Frank Gaffney, Founder and President of the Center for Security Policy:
May I quickly respond, sir? One is that the fellow who started the Muslim chaplains in the federal prison is now in the federal prison himself – Abdulrahman Alamoudi. He is a terrorist. He is a man who created, among other things, an infrastructure inside the United States for promoting sharia through the Muslim Brotherhood.

But on your question, it’s critically important, will Marion be at risk if they take prisoners from Gitmo? I’m concerned that they might be, not least because quite apart from whether they could spring people from the super-max facility, it makes it a target for terrorism. It is an opportunity to create a spectacular incident…

Sen. Dick Durbin (D-Ill.):
Mr. Gaffney, there are domestic gang members and leaders of extremist groups from all over the United States incarcerated in these prisons, and they are handled very professionally and securely so that communities beg for the opportunity to have a federal prison constructed near them.

Let me move to the question – Ms. Massimino – I believe the President should move according to his promise to close Guantanamo. But I also believe that Congress has made that exceedingly difficult with restrictions that we put in place in terms of the transfers of these detainees. Would you comment on those restrictions?

Elisa Massimino, President of Human Rights First:
Yes, I would be happy to do that. I also would like to say one word about federal prisons because I had some of the same questions and I understand that many people have these anxieties. So I reached out to the American Correctional Association and asked them what they thought about whether they could handle these kinds of prisoners. And they asked me, “Do you know who’s in there now? These are not nice people. We know how to handle this. We’ve got this.” And Sen. Graham said it’s absurd to think that our corrections officials cannot handle this population.

You’re absolutely right, Senator, that Congress has made closing Guantanamo more difficult because of these transfer restrictions.

And I was happy to see that the Senate defense authorization bill has included some provisions that would give greater authority to the commander-in-chief to dispose of the prisoners at Guantanamo in the way that he thinks best fits our national security, and I hope those provisions become law.

We also in our exit strategy document that we released today break down the population at Guantanamo. It’s essentially about the math. We have 166 people. The majority of those have been cleared for transfer. The President has now appointed a leader at the State Department to take on this challenge and we’re awaiting the appointment of a leader at the Defense Department to do the same. There’s renewed urgency about this, as you heard from Sen. Feinstein about what’s going on down there with the hunger strikes.

So this is something on which the President and Congress have to work together. Presidential leadership is essential but Congress needs to trust the commander-in-chief to make these decisions.

Sen. Dick Durbin (D-Ill.):
Lt. Fryday, thank you for your compelling testimony, thank you for service to our country, and thanks for reminding us what we’re all about in this country when it comes to the rule of law. That reference to John Adams is one that just stands out in this man’s biography. Before he was elected President, he was assigned to defend British soldiers who were accused of massacring American colonists. It’s an indication of where we started as a nation and where we need to continue.

You’ve had a foot in both camps. You’ve been a prosecutor in our criminal justice system at the federal level. And now, you’ve been a defense counsel when it comes to military commissions.

Some in Congress argue we just can’t trust Article III courts, if we give somebody a Miranda warning they’re going to clam up and won’t even talk or cooperate. While others point to the record that over 500 accused terrorists have been successfully prosecuted in Article III courts and six before military commissions.

What is your view about the proper place – the proper tribunal for these trials?

Navy Lt. Joshua Fryday, Judge Advocate General, Office of the Chief Defense Counsel for Military Commissions:
Thank you, sir, very much for the question and your comments. I don’t believe that it is my job to provide a recommendation to this body or this committee. It’s not what I’ve been assigned to do and ordered to do.

I can say having been to Guantanamo and seeing the commissions up close, it’s been 12 years since 9/11 and we’re still litigating what kind of clothes people can wear in court, what kind of notes lawyers can take in meetings, and what of rights apply.

It’s a very confusing system. It’s a very slow, inefficient system. It’s obviously as the numbers as you’ve indicated it’s a much slower system than federal courts.

There are still a lot of barriers in place in the military commission system – barriers for counsel, issues of attorney-client privilege, issues of classification that are confusing, hearsay rules that are relaxed in military commission systems that’s different. So there are a lot of differences that still need to be worked out as we’ve moved forward.

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