CITY ON THE HILL OR PRISON ON THE BAY?

THE MISTAKES OF GUANTANAMO AND

THE DECLINE OF AMERICA’S IMAGE

Hearing before the House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight

May 6, 2008

OPENING STATEMENT OF CHAIRMAN BILL DELAHUNT

This hearing will come to order.

This hearing continues our examination of the detention facility at Guantanamo. And how its operation influences the perception of the United States by the international community and the resulting consequences for American national security and foreign policy objectives.

Years after Secretary Rumsfeld described the GTMO detainees as the ‘worst of the worst’, we can now conclude, as one of our witnesses states, that many are more accurately described as “the unluckiest of the unlucky.” For its crucial to understand that a majority of the detainees were the victims of a bounty system that made them easy prey for local thugs who seized an opportunity to make a quick buck. Remember that only 5% of the inmates were captured by American forces. The rest were primarily purchased from Afghanis and Pakistanis.

The fact that mistakes are made in the fog of war is understandable and, as in any human endeavor, are to be expected. But -- once discovered -- acknowledge them and fix them. Design a system that allows redress -– that embraces the rule of law in full measure – and that shows the world that American justice is not afraid of the truth but rather seeks the truth – however embarrassing.

But no, this White House compounds its mistakes.

I find it particularly repugnant that the White House invites the “worst of the worst” to come and visit Guantanamo. What do I mean? The Administration granted security agents from Uzbekistan permission to interview Uzbeks including Oybek Jabbarov whom we will hear more about later. Imagine: interrogators from one of the worst human rights abusers in the world -- where there is evidence that they literally boil people alive – according to our own State Department. And yet these thugs were granted full rein by our own government to come in and threaten detainees who were in our custody!

But they weren’t the only ones allowed in. Security police from China were permitted in to interrogate Uighurs. Uighurs! A persecuted minority from China! These detainees were supportive of the United States -- and yet we allowed Chinese officials to threaten and abuse them. That’s despicable. I find it particularly ironic that while the Uzbek and Chinese Communist agents can walk into this ultra-maximum security facility, our own Ranking Member finds it difficult to meet with a convicted terrorist in a US prison!

But I’m not just troubled by the continued detention of some of these people – but by the US practice of sending some detainees back to abusive countries on the basis of ‘diplomatic assurances’ -- in other words, promises from the receiving country that the detainee would not be tortured. Countries like Libya, Tunisia, Kazakstan and IRAN! All nations which our State Department described as practitioners of systematic torture.

Well, our Subcommittee has examined these ‘diplomatic assurances’ in the context of renditions and we know that all too often they are worth little more than the scrap of paper they are written on – that is, if anyone bothers to even put pen to paper for them. We saw that clearly in the case of Maher Arar, a Canadian of Syrian origin, who was detained at JFK and shipped off to Syria on the basis of “diplomatic assurances” – assurances that did little good in preventing his torture.

The United States has used these diplomatic assurances to argue that it has fulfilled its obligations under the Torture Convention. But in the case of the Uighurs, Chinese diplomatic assurances couldn’t pass the laugh test -- the Administration was forced to concede that the Uighurs couldn’t be sent back to China. Albania agreed to take a few, but China has now made it very clear that any nation which accepts Uighurs will suffer the consequences. So the rest of them languish at Guantanamo.

But what about Jabbarov the Uzbek? It’s been over a year since his lawyer received an email indicating that he was determined to “no longer be a threat” and could depart Guantanamo. But the Administration has found no place to send him, all the while refusing to rule out sending him back to Uzbekistan. Well, if the Chinese couldn’t be trusted to treat people humanly, it’s baffling to me how the Uzbeks can.

Let’s be clear about what is at stake here -- the damage from Guantanamo goes well beyond the pain and suffering of these individuals and their families. This place has singlehandedly dealt a blow to the nation’s image in the world that will take decades to overcome.

The consequences to our national interest are devastating. The State Department’s own Advisory Group on Public Diplomacy for the Arab and Muslim World concluded that “hostility toward the U.S. makes achieving our policy goals far more difficult.” But the injury is not limited to the Middle East. As a 2005 GAO report concluded, a poor reputation seriously undermines our ability to pursue our foreign policy objectives across the globe, in an array of spheres, whether it be building a security alliance or selling American goods.

In our efforts to claim a moral authority, Guantanamo is a serious obstacle. Sixty eight percent of people polled across the globe disapprove of how the US government has treated detainees in Guantanamo and other prisons. In several countries, including Germany, Great Britain, Argentina and Brazil, disapproval rates on Guantanamo surpass seventy five percent.[1]

It is well past time for the Bush Administration to deal with its mistakes. We all must work aggressively to free those who everyone aggress can depart. If no nation can be found to which detainees could safely be sent without risk of torture, then we need to think creatively about alternative solutions, including bringing some to the United States. For those the Administration still considers a threat, give them their day in court.

Let me now turn to my friend and colleague, Mr. Rohrabacher, for any statements he may care to make.

_____________________________________________________________________

Thank you, Dana.

Let me now introduce our speakers. The Guantanamo detainees we will discuss today are all ably represented by New England attorneys. Michael Mone, who represents Mr. Jabbarov, is an associate of the Boston firm of Esdaile, Barrett & Esdaile. He practices in all areas of civil litigation, specializing in medical malpractice, simple and complex tort, and products liability claims. Before joining the firm, Mr. Mone worked on my staff as an Assistant District Attorney in Norfolk County, prosecuting a broad spectrum of criminal cases in the District and Superior Courts. He graduated from Skidmore College and my favorite law school, Boston College.

Stephen Oleskey, the attorney for the Bosnian Algerians, is a partner at WilmerHale in Boston. His practice focuses on complex civil litigation and appellate argument, with an emphasis on real estate-related litigation. From 1987-88, he served as Massachusetts deputy attorney general and chief of the Public Protection Bureau. Mr. Oleskey has received numerous awards for his long-standing commitment to pro bono work. He is the 2007 recipient of the ABA’s Pro Bono Publico Award for outstanding life long commitment to pro bono work. In addition, he has received awards from the Boston Bar Association and Greater Boston Legal Services. He currently serves as chairman of the Equal Justice Coalition and chair of the board of directors of Pact, an international development nonprofit organization. Mr. Oleskey is a graduate from Wesleyan University and New York University Law School.

Elizabeth Gilson is a solo practitioner based in New Haven, CT. She has thirty years of experience, twenty in private practice and ten as a lobbyist and public-policy analyst. Her practice focuses on environmental regulation and general litigation. She chairs the Legal Committee of the Connecticut Fund for the Environment. Ms. Gilson regularly appears in state and federal courts and before regulatory and administrative bodies. Ms. Gilson has represented public and private clients in diverse cases involving the siting of gas, electric and water projects. She also provides special environmental counsel services to several municipalities in Connecticut.

Emi Maclean from the Center for Constitutional Rights in New York also joins us today. Ms. Maclean has worked on the Center’s Guantánamo Global Justice Initiative since June 2006.  In this role, she helps coordinate the pro bono attorneys representing the hundreds of men still detained at Guantánamo and supports the Center’s direct representation of a number of current detainees. In addition, she is involved in civil actions brought on behalf of former prisoners released from Guantánamo in the case, Rasul v. Rumsfeld. Ms. Maclean graduated magna cum laude from Harvard College and Georgetown University Law Center.

I also welcome Lee Casey, a partner at Baker and Hostetler in Washington, D.C. Mr. Casey’s practice focuses on federal, environmental, constitutional, election, and regulatory law issues, as well as international and international humanitarian law. Mr. Casey’s practice includes federal, district and appellate court litigation, as well as matters before federal agencies. From 1986 to 1993, Mr. Casey served in various capacities in the federal government, including the Office of Legal Counsel (1992-93) and the Office of Legal Policy (1986-90) at the U.S. Department of Justice. In addition, from 1990 to 1992, Mr. Casey served as Deputy Associate General Counsel at the U.S. Department of Energy. He has also served from 1990 through 1994 as an Adjunct Professor of Law at George Mason University School of Law. He is a graduate of Oakland University and University of Michigan Law School.

________________________________________________________________________

ANNEX

BBC-GlobalUSViews-Jan2007

Q: Thinking about the last year, please tell me if you approve or disapprove of how the United States government has dealt with each of the following d) The US treatment of detainees in Guantanamo and other prisons.

	Approve	Strongly approve	Somewhat approve	Disapprove	Somewhat disapprove	Strongly Disapprove	DK
Argentina	3	1	2	78	4	74	19
Australia	18	7	11	77	20	57	5
Brazil	14	6	8	76	18	58	11
Chile	15	3	12	63	18	45	22
China	12	2	10	59	20	39	29
Egypt	7	4	3	87	17	70	7
France	8	3	5	82	15	67	11
Germany	9	3	6	89	19	70	3
Great Britain	14	4	10	76	25	51	10
Hungary	7	1	6	69	22	47	24
India	34	14	20	40	19	21	26
Indonesia	12	3	9	72	29	43	16
Italy	10	4	6	82	18	64	9
Kenya	35	20	15	38	14	24	27
Lebanon	9	6	3	80	9	71	12
Mexico	15	3	12	70	41	29	15
Nigeria	45	18	27	38	24	14	18
Philippines	36	12	24	32	16	16	32
Poland	8	2	6	61	28	33	31
Portugal	8	2	6	84	18	66	9
Russia	7	1	6	57	26	31	36
South Korea	25	4	21	60	42	18	15
Turkey	3	2	1	85	22	63	11
UAE	14	4	10	77	9	68	9
Average w/o US	15	5	10	68	20	48	17
USA	39	17	22	50	21	29	11
Average w/US	16	6	10	67	20	47	17

---

[1] See chart in Statement Annex.