I appreciate the opportunity to appear before the Subcommittee today, and to address some of the issues surrounding the detention facility in the United States Naval Station at Guantanamo Bay, Cuba. I should note at the outset that I am not speaking on behalf of my law firm or any of its clients.

The nature of our enemy in the war on terror has created many difficult and unique problems for the United States. Al Qaeda and its jihadist allies are not controlled by any particular state or government. Indeed, they reject the nation-state and any kind of “international” law as organizing principles. They do not recognize, accept or implement the law of armed conflict. They do not have a regular and transparent command structure. They do not wear uniforms, carry their arms openly, or distinguish themselves from the surrounding civilian population in any other manner. They do not obey the laws and customs of war in their operations.

Because of these purposeful decisions made by the enemy, it has been far more difficult than in conventional conflicts for the United States to identify their forces with certainty. That, of course, is exactly why guerillas and others engaged in “asymmetrical warfare” – especially those operating among and preying upon the civilian population – organize themselves as irregulars. The lawful armed forces of states, by contrast, do mark themselves out from the civilian population, and this is one of the key criteria they must meet, under the laws and customs of war, in order to achieve the status of “lawful” or “privileged” combatants. Such lawful combatants, when acting under the authority of a sovereign state, are not subject to prosecution for their violent acts – so long as they otherwise operate in accordance with the applicable laws of armed conflict – and are also entitled to the various rights and privileges of honorable prisoners of war upon defeat or capture.

This is not, of course, the case with groups like al Qaeda which resort to the use of armed force but which eschew these basic rules. Although violating the laws of war gives such groups an operational advantage vis-à-vis regular forces, their illegitimate and unlawful choices in this regard do not change the legal rights of the United States to confront al Qaeda militarily and to attack, capture, and detain its personnel – just as we would be entitled to attack, capture and detain the lawful soldiers of a sovereign state with whom we were at war.

The detention facilities at Guantanamo Bay, Cuba, are a necessary and inevitable part of that war which was, it should be emphasized, duly authorized by Congress in its Joint Resolution of September 18, 2001, specifically stating that “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Authorization for the Use of Military Force, Pub. L. No. 107-40 (Sept. 18, 2001).

In wartime, of course, enemy forces are subject to armed attack at any time and without warning. However, quarter must be given when sought, or when an individual enemy combatant is no longer capable of resistance. In exchange for granting this quarter, however, the law of armed conflict permits captured enemy combatants to be detained – without a judicial hearing, access to a lawyer, or a criminal trial – until hostilities have been concluded. Captured enemies must be housed and prevented from escaping to return to the fight. That is the purpose served by the Guantanamo Bay detention facilities.

Both Congress and President Bush were right to treat the September 11, 2001 attacks against the United States as the acts of war they certainly were. Al Qaeda’s actions on that day were fundamentally different from those of other terrorists, such as we experienced from radical groups like the “Weathermen” during the 1960s and 1970s, or during the 1990s in Oklahoma City. Al Qaeda’s attacks certainly were violent, and calculated to cause as many deaths among the civilian population as possible. They were not, however, directed at achieving some misguided political change in our government or society, or even to prompt civil disorders or revolution. The targets selected clearly show a deliberate attempt by al Qaeda pre-emptively to decapitate what it understood to be the United States’ financial, political and military leadership. These were most certainly criminal acts, but they are not the acts of mere criminals. Al Qaeda’s purpose, goals and capabilities are geopolitical.

Just as Imperial Japan sought, with the December 1941 attack against Pearl Harbor, to drive the United States from its position and influence in East Asia, so al Qaeda seeks to force the United States – and other Western influence – from the Middle East and the rest of the Islamic world. The ultimate goal, of course, appears to be the establishment of a transnational Islamicist regime over the entire area – a modern reincarnation of the medieval Caliphate. In this connection, of course, it is important to recall that al Qaeda’s military assault on the United States did not begin on September 11, 2001, but well before in the 1990s with attacks against American military and diplomatic targets throughout the Middle East. The proper response was a military response.

Thus, Guantanamo Bay, and the detention policy it represents, are part and parcel of the use of military force against al Qaeda and were inevitable in some form. The facilities at Guantanamo have been established at significant expense and serve as a secure location for holding captured enemy combatants. Although Guantanamo has never been a “law free zone,” as critics of the Bush Administration’s policies have often claimed – since American activities there have always been subject to the laws and customs of war – the area’s legal status has been refined in important ways by the decisions of the United States Supreme Court and by congressional action. At this time, individuals held at Guantanamo are entitled to an elaborate administrative review, in the form of combatant status review tribunals to consider their classification as enemy combatants and periodic administrative review boards to determine whether their continued detention is necessary. In addition, detainees must be tried before military commissions, in accordance with the 2006 Military Commissions Act, if they are to be criminally punished.

Closing the Guantanamo facilities, as some have suggested, would require the construction of a similar detention camp elsewhere, either in the United States or abroad, and it very likely would not dampen international criticism of the United States. The real issue is not the physical location or facilities at Guantanamo, but the policy of treating America’s conflict with al Qaeda as a war, a legally cognizable armed conflict, rather than a criminal law enforcement exercise. While it is true that abandoning this policy might obtain some temporary “bounce” in U.S. international popularity, it would at the same time severely handicap efforts to anticipate and prevent future catastrophic attacks on the American homeland and against the United States and its allies overseas.

To date, despite an ever expanding body of rhetoric, no practical alternative to detaining captured enemy combatants – whether at Guantanamo Bay or elsewhere – has been presented. Although some of the detainees doubtless could be processed through the civilian criminal justice system, many could not because the type of evidence necessary in such trials simply is not available. Even if it were, however, I do not believe that this would not be a viable option. First, treating captured jihadists as criminal defendants – just as treating them as honorable prisoners of war under the Geneva Conventions – would grant them rights they have not earned. Second, abandoning the wartime legal paradigm would have far-reaching effects that go far beyond detention issues.

The law of armed conflict and the civilian criminal justice system are not interchangeable. Criminal suspects cannot be the subject of armed attack. Ordinarily, they can be taken into custody only under limited circumstances – based upon lawfully issued arrest warrants. Even where law enforcement officials are privileged to arrest individuals without a warrant – as when they have themselves witnessed criminal activity for example – they may use only that force necessary to effect the arrest. In wartime, by contrast, the armed forces are privileged to use the level of force necessary to defeat or destroy the enemy forces, so long as certain basic rules relevant to distinction (between military and civilian targets) and proportionality (ensuring that the likely collateral damage to civilians or civilian objects does not outweigh the importance of the military objective sought to be achieved) are observed.

In addition, the law enforcement authorities of one country are not (absent some special agreement) privileged to enter another sovereign nation’s territory to effect an arrest. Although, under United States federal law, seizing a suspect overseas and forcibly bringing him or her to the United States will not necessarily undermine a later prosecution, see United States v. Alvarez-Machian, 504 U.S. 655 (1992), such action remains an international delict if done under color of state authority. If a state harboring “criminal” suspects refuses a request for judicial cooperation by the United States, then there are few options – other than diplomatic remonstrance and an approach to the United Nations Security Council.

Most important of all, however, the criminal justice system is simply ineffective in preventing attacks. It has been designed as a reactive mechanism – through which criminal offenders are identified, tried and punished for past actions. The threat of arrest and punishment certainly can and does create a deterrence effect with respect to most people, most of the time. However, this deterrence has proven ineffective when the perpetrators are ideologically or religiously motivated and willing to sacrifice their own lives, as well as those of others, to attain their ends. This was proven beyond peradventure on September 11 itself. That was, of course, the second attempt by al Qaeda and its allies to destroy the World Trade Center. The fact that many of those responsible for the first attempt to blow up the twin towers, in 1993, were identified, tried and punished through the federal courts did not deter or otherwise prevent this second, successful attack.

If the American people are to be protected against attack – and they have a right to that protection – then the United States must continue the war against terror, whatever the next President may choose to call it. Otherwise, the government will be faced with the choice between failing in its duty to protect the American people, or proceeding to warp the rules governing law enforcement operations beyond recognition.

At the same time, again because of the difficulties created by our enemy’s illegitimate choices, a handful of individuals have been detained at Guantanamo Bay who should not have been. In such cases, it certainly would be appropriate for Congress to provide some compensation, just as compensation has been provided by the U.S. Armed Forces to civilians in Iraq and Afghanistan who have been mistakenly targeted. Such cases, however, must be distinguished from other instances in which the Armed Forces have concluded that particular enemy combatants no longer need to be detained. Here, it is important to emphasize that this conclusion in no way undercuts the legal right of the United States to detain these individuals up until the conclusion of all hostilities with al Qaeda.

A number of such individuals have been released from Guantanamo over time – most, as I understand it – have been returned to their own countries. In some cases, however, returning individuals to their homes is not possible either because of a refusal of their own governments to accept them, or more especially because they would face a realistic danger of persecution or mistreatment by those governments, up to and including the risk of torture or other extra-judicial penalties. This obviously puts the United States in the difficult position of detaining individuals who may no longer present a threat on the battlefield, but who also may not be appropriate subjects for a grant of asylum or some other access to the United States proper.

These individuals are not being held on American soil and have no right of entry into the United States – unless Congress chooses to create such a right. Congress’ broad, constitutional power over immigration and naturalization would certainly permit the adoption of a new status that might allow certain detainees to enter the United States under restrictions designed to ensure that they do not pose a danger to our own people. This, of course, is far easier said than done – and the better solution remains repatriation, with suitable guarantees by the receiving state. However, the problem will not go away.

The legal right of the United States to hold the detainees at Guantanamo Bay, and at detention facilities elsewhere in the world, depends upon continuation of active hostilities between our Armed Forces and al Qaeda and its allies. Once those hostilities cease, the detainees will have to be charged with a criminal violation and tried by military commission, or they must be repatriated. For those who cannot be returned to either their own country, or the country in which they were captured in the first instance, a long term solution will have to be found. This may take the form of some type of administrative detention, or potentially a conditional parole into the United States, or some combination of both. Creating this new system will be practically, politically and legally difficult, but the effort must begin now.

I would be pleased to answer any questions they Subcommittee may have. Thank you.