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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________
X
NEW YORK TIMES COMPANY and
:
CHARLIE SAVAGE,
:
:
Plaintiffs,
:
:
- against :
:
U.S. DEPARTMENT OF JUSTICE,
:
:
Defendant.
:
__________________________________________X

16 Civ. 6120 (RMB)

MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND IN SUPPORT OF PLAINTIFFS’
CROSS-MOTION FOR SUMMARY JUDGMENT

David E. McCraw, Esq.
Ian MacDougall, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue, 18th Floor
New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-4634
mccraw@nytimes.com

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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT ................................................................................................................................ 10
I.

THE EXEMPTION 5 DELIBERATIVE-PROCESS PRIVILEGE DOES NOT
JUSTIFY WITHHOLDING THE THREAT ASSESSMENTS IN FULL ................. 11
a. THE OBAMA ADMINISTRATION EXPRESSLY ADOPTED THE TASK
FORCE’S REASONING AND CONCLUSIONS……………………………....13
b. DOJ HAS FAILED TO SHOW THAT FACTUAL MATERIAL WITHIN THE
THREAT ASSESSMENTS CAN BE WITHHELD UNDER EXEMPTION 5...18

II.

DOJ HAS NOT JUSTIFIED WITHHOLDING OFFICIAL ACKNOWLEDGED OR
OFFICIALLY DISCLOSED FOREIGN RELATIONS INFORMATION UNDER
EXEMPTION 1 .......................................................................................................... 20

III.

DOJ HAS FAILED TO CARRY ITS BURDEN WITH RESPECT TO
EXEMPTIONS 7(B), 7(D) & 7(E) ............................................................................. 22

CONCLUSION ............................................................................................................................. 25

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TABLE OF AUTHORITIES
CASES
Adams v. United States, 673 F. Supp. 1249 (S.D.N.Y. 1987) ...................................................... 19
Assadi v. U.S. Citizenship & Immigration Servs., 12 Civ. 1374 (RLE), 2015 U.S. Dist. LEXIS
42544 (S.D.N.Y. Mar. 31, 2015) .................................................................................................. 11
Assoc. Press v. Dep’t of Defense, 554 F.3d 274 (2d Cir. 2009) ................................................... 10
Assoc. Press v. Dep’t of Defense, 498 F. Supp. 2d 707 (S.D.N.Y. 2007)……..…..………..21 n.8
Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143 (2d Cir. 2010) 10-11
Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012).................. 10, 12-13, 17
Bronx Defenders v. Dep’t of Homeland Sec., No. 04-cv-8576 (HB), 2005 U.S. Dist. LEXIS
33364 (S.D.N.Y. Dec. 19, 2005)................................................................................................... 14
Bryant v. Maffuci, 923 F.2d 979 (2d Cir. 1991) ........................................................................... 10
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998) .......................................... 21 n.8
Carney v. U.S. Dep’t of Justice, 19 F.3d 807 (2d Cir. 1994) ........................................................ 10
Donovan v. FBI, 806 F.2d 55 (2d Cir. 1986) ................................................................................ 11
EPA v. Mink, 410 U.S. 73 (1973) ........................................................................................... 12, 19
Florez v. CIA, 829 F.3d 178 (2d Cir. 2016) ............................................................................. 20-21
Grand Central P’ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999 ....................................... 12, 19
Halpern v. FBI, 181 F.3d 279 (2d Cir. 1999) .............................................................. 21 n.8, 23-24
Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81 (2d Cir. 1991) ......................... 12, 18
Intellectual Prop. Watch v. U.S. Tr. Rep., No. 13-cv-8955(ER), 2016 U.S. Dist. LEXIS 118209
(S.D.N.Y. Aug. 31, 2016) ............................................................................................................. 23
Lead Indus. Ass’n v. OSHA, 610 F.2d 70 (2d Cir. 1979) .............................................................. 18
Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350 (2d Cir. 2005) ................ 10, 12-14, 17
Nat’l Day Laborer Org. Network v. ICE, 827 F. Supp. 2d 242 (S.D.N.Y. 2011) ........................ 14
Nat’l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014)............................................................ 19
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Natural Res. Def. Council v. Nat’l Marine Fisheries Serv., 409 F. Supp. 2d 379 (S.D.N.Y. 2006)
....................................................................................................................................................... 19
NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) .................................................................. 11
N.Y. Times Co. v. Dep’t of Justice, 872 F. Supp. 2d 309 (S.D.N.Y. 2012) ............................ 10 n.5
N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) ................................................. 20
Playboy Enter., Inc. v. Dep’t of Justice, 677 F.2d 931 (D.C. Cir. 1982)……………………….19
Rosenfeld v. Dep’t of Justice, 57 F.3d 803 (9th Cir. 1995)........................................................... 24
Schwartz v. DEA, No. 13-cv-5004(CBA), 2016 U.S. Dist. LEXIS 3696 (E.D.N.Y. Jan. 8, 2016)
.................................................................................................................................................. 24-25
Tigue v. U.S. Dep’t of Justice, 312 F.3d 70 (2d Cir. 2002) .......................................................... 18
U.S. Dep’t of Justice v. Landano, 508 U.S. 165 (1993)........................................................... 23-24
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) ..................................................................... 9 n.4
Wash. Post v. Dep’t of Justice, 863 F.2d 96 (D.C. Cir. 1988) ................................................. 22-23
Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) ................................................................................... 11
Wood v. FBI, 432 F.3d 79 (2d Cir. 2005) ..................................................................................... 11
STATUTES AND REGULATIONS
5 U.S.C. § 552 ........................................................................................................................ Passim
National Defense Authorization Act for Fiscal Year 2014, Pub. L. 133-66, 127 Stat. 672 (2013)
....................................................................................................................................................... 17
FED. R. CIV. P. 56 .......................................................................................................................... 10

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Plaintiffs The New York Times Company and Charlie Savage (collectively, “The
Times”) respectfully submits this memorandum of law in opposition to the motion for summary
judgment by the Department of Justice (“DOJ”) and in support of their cross-motion for
summary judgment on their Complaint brought under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552.
PRELIMINARY STATEMENT
This case rests at the center of one of the most polarizing debates of the post-9/11 era—
the past, present, and future of the detainees held in the U.S. detention facility at Guantanamo
Bay, Cuba. At issue are about 240 documents that set out the threat level posed by each detainee
held at Guantanamo Bay at the start of the Obama Administration’s first term (the “Threat
Assessments”). These Threat Assessments were compiled by the inter-agency Guantanamo
Review Task Force (the “Task Force”) and adopted as the basis for the ultimate disposition of
most of the 240 detainees: Some were transferred to other countries or released outright; others
were held pending prosecution; and still others, it was decided—those who could not be
prosecuted but were too dangerous to transfer—would be held indefinitely without trial.
The process—and the Obama Administration’s detainee policy generally—proved
contentious. Over the years, senior Administration officials—including the official who led the
Task Force—have held up the Threat Assessments as evidence of the sound policy underlying
the Administration’s handling of Guantanamo detainees. Yet, now DOJ wants to keep from the
public the reasoning and conclusions that, for years, senior executive branch officials have been
publicly relying on to justify detainee policy. But under FOIA, DOJ cannot use the documents to
justify a policy then keep them secret from the public, no matter how narrowly it tries to read the
law in this area.
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STATEMENT OF FACTS
The story of this case begins with the Obama Administration.
The Guantanamo Review
When President Obama took office, on January 20, 2009, 242 detainees remained at the
detention facility at Guantanamo Bay. (Guantanamo Review Task Force, Final Report at 2 (Jan.
22, 2010) (“Final Report”), Declaration of Courtney J. O’Keefe (“O’Keefe Decl.”), Ex. E.) Two
days into his presidency, Obama issued an Executive Order, which ordered the closure of
Guantanamo Bay’s detention facility within one year. (E.O. 13,492, § 3, 74 Fed. Reg. 4897, 4898
(Jan. 22, 2009), O’Keefe Decl., Ex. D.) To that end, the President established a process by which
to evaluate whether circumstances warranted continued detention of the remaining detainees. (Id.
§ 2(d).) Six senior Administration officials (collectively, the “Principals”)—including the
Attorney General, the Secretary of State, and the Secretary of Defense—would lead a review to
determine whether each detainee: (1) could safely be transferred to another country or released
altogether, (2) should and could be prosecuted, or (3) would have to be handled through some
other lawful process. (Id. § 4(c)(2)-(4).) The Executive Order stated that the Principals’ review
“shall identify and consider . . . security issues relating to the potential transfer of individuals
currently detained at Guantanamo.” (Id. § 4(c)(5).)
The Attorney General, in turn, convened the Task Force, which consisted of more than 60
career officers from various government agencies, to assemble and review relevant information
and make recommendations about the disposition of the remaining detainees. (Final Report at 3,
O’Keefe Decl., Ex. E.) A Guantanamo Review Panel (the “Review Panel”) was also created to
make a final determination as to each detainee based on the Task Force’s recommendation, with

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each of the Principals delegating their decisionmaking authority to another senior-level official.
(Id. at 4.) Each detainee’s fate had to be decided unanimously. (Id. at ii.)
Over the course of a year, the Task Force conducted a two-tiered review. (Id. at 6.) First,
the Task Force determined (1) which detainees could safely be transferred or released and (2)
which detainees ought to and could be prosecuted. (Id.) To determine whether a detainee was
eligible for transfer to another country or release, the Task Force generated a Threat Assessment
for each detainee, taking into account a variety of factors. (See id. at 7; Guantanamo Review
Task Force Detainee Review Guidelines at 3-4 (June 30, 2009), O’Keefe Decl., Ex. F.) 1 The
Task Force generated a Threat Assessment for nearly all of the 240 detainees. 2 (O’Keefe Decl. ¶
15.) In its public Final Report, the Task Force explained who it categorized detainees’ threat
characteristics, identifying by name certain detainees, like Khalid Sheikh Mohammed. (Final
Report at 13-14, 23-24, O’Keefe Decl., Ex. E.)
Detainees who could not be transferred, released, or prosecuted received reevaluation in a
second-phase review: The Task Force determined that it was appropriate to hold detainees in this
third category at Guantanamo Bay under the laws of war—a period of detention with no fixed
end date. (Id. at 6-7.) For a detainee to receive this designation, he had to meet three conditions:
(1) He posed a national security threat that a transfer with security measures could not mitigate

1

A Pentagon task force—Joint Task Force Guantanamo (“JTF-GTMO”)—had previously
generated threat assessments for each detainee. (See 2011 Olsen Testimony at 74, Declaration of
David E. McCraw (“McCraw Decl.”), Ex. 13.) The Task Force Threat Assessments took these
JTF-GTMO assessments into account, but did not always agree with their conclusions. (Id.) The
anti-secrecy organization Wikileaks ultimately obtained and published the JTF-GTMO
assessments. See The Guantanamo Docket, N.Y. TIMES, available at
https://www.nytimes.com/interactive/projects/guantanamo.
2
Of the original 242 detainees, before the Task Force completed its work, one had received a life
sentence after conviction before a military commission and another had killed himself. (Final
Report at 6 n.4, O’Keefe Decl., Ex. E.)
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sufficiently, (2) prosecution was not feasible in an Article III court or before a military
commission, and (3) continued detention without charge was lawful. (Id. at 8; see also Supp. to
Guantanamo Review Task Force Detainee Review Guidelines at 2, O’Keefe Decl., Ex. F.)
The Review Panel reached unanimity in many cases, but in some, where that was not
possible—or occasionally for other reasons—the Principals themselves would convene to reach a
unanimous decision. (O’Keefe Decl. ¶ 16.) In certain instances—though DOJ’s declarant is
curiously vague on this point—the Review Panel diverged from the Task Force’s
recommendations. (Id. ¶ 23.) The final detainee dispositions were memorialized in a chart.
(O’Keefe Decl., Ex. G.) Ultimately, 126 detainees were approved for transfer, though many
remained at Guantanamo for some time before being transferred. (Final Report at 10-11, 16-18,
O’Keefe Decl., Ex. E.) In addition, 30 Yemeni detainees were approved for “conditional”
detention, meaning they could be transferred only if certain conditions were satisfied. (Id. at 1213, 25-26.) Another 36 detainees were referred for prosecution, and 48 were slated to be held
without trial indefinitely. (Id. at 11-12, 19-25.)
Public Statements
DOJ’s declarant states that, besides the Guantanamo Review Dispositions chart (O’Keefe
Decl, Ex. G), she is “not aware of any other official public statement by the Review Panel, nor
the Review Participants [i.e., Principals], adopting the conclusions or rationale of any of the
threat assessments.” (O’Keefe Decl. ¶ 28.) To the contrary, a number of senior Obama
Administration officials, including one Principal—Attorney General Eric Holder—made public
statements that are evidence that the final decisionmakers adopted the reasoning and conclusions
of many, if not all, of the Threat Assessments. Official DOJ press releases have placed similar
reliance on the Threat Assessments to justify the transfer and release of certain detainees. In
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addition, Matthew Olsen, the Task Force’s executive director, made several relevant statements
before Congress in 2011 and 2012. A collection of these two categories of statements follows.
Public Statements about the Threat Assessments by Senior Administration Officials
In two statements before the House Foreign Affairs Committee, on March 23, 2016, and
July 7, 2016, Lee Wolosky, Special Envoy for Guantanamo Closure at the State
Department, defended the Administration’s detainee transfer policy by emphasizing the
strong reasoning underlying the conclusions of the Task Force’s Threat Assessments:
“The task force examined [the assembled] information critically, giving careful
consideration to the threat posed by the detainee, the reliability of the underlying
information, and the interests of national security. Then, based on the review of the task
force’s recommendation, [the six agencies] unanimously determined the appropriate
disposition for each detainee . . . .” (July 7 Wolosky Testimony at 1-2 & Mar. 23
Wolosky Testimony at 2-3, McCraw Decl., Exs. 1-2.)
In a February 12, 2015, statement to the House Committee on Armed Services, Paul
Lewis—the Special Envoy for Guantanamo Detention Closure at the Defense
Department—relied on the Threat Assessments’ sound reasoning and conclusions when
defending the Obama Administration’s detainee transfer policy: the Threat Assessments,
Lewis said, “should be used as the foundational analysis when determining a detainee’s
current threat.” (Lewis Statement at 28-29, McCraw Decl., Ex. 3.)
In a February 5, 2015, Brian McKeon, the principal deputy undersecretary for policy at
the Defense Department, pointed to the Threat Assessments to defend the Obama
Administration’s detainee transfer process in written and oral testimony before the Senate
Armed Services Committee. A “[k]ey feature of the process” is a detainee’s Threat
Assessment, which involved “a comprehensive interagency review and rigorous
examination of information regarding the detainee . . . conducted by career
professionals.” (McKeon Testimony at 7, McCraw Decl., Ex. 4.) Although updated,
McKeon told Sen. Joe Donnelly, the Threat Assessments remained the baseline for
transfer decisions. (Id. at 41-42.)
In an April 25, 2011, joint statement issued to The New York Times, Special Envoy for
Closure of the Guantanamo Detention Facility Dan Fried and Pentagon Press Secretary
Geoff Morrell emphasized the strength of the reasoning and conclusions of the Threat
Assessments to defend the Obama Administration’s detainee transfer policy in the wake
of the unauthorized disclosure by Wikileaks of the Bush-era JTF-GTMO threat
assessments. (McCraw Decl., Ex. 5.)
Attorney General Holder, in a prepared statement for an April 14, 2010, hearing before
the Senate Committee on the Judiciary, held up the Task Force’s work, including the
Threat Assessments, as a highlight of the Administration’s anti-terrorism work. He did
not refer to the Review Panel—although he mentioned unanimity among the agencies
involved—but rather spoke in terms of the Task Force’s work: the Task Force, he noted,
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“rigorously reviewed pertinent information regarding 240 Guantanamo detainees,
determining their suitability for prosecution or for transfer to another country—or, if
neither of those options is available, continued detention . . . .” (Holder Statement at 5,
McCraw Decl., Ex. 6.)
Holder made a similar point in oral testimony during that hearing. (Holder Testimony,
McCraw Decl., Ex. 7.) In defense of the decision to hold 48 detainees indefinitely
without trial, he pointed to the “very able” Task Force’s recommendation that these
detainees be held, given their threat level, noting that the recommendation was
“unanimously agreed to by the principals.” (Id. at 28.)
In 2010, Rep. Frank Wolf questioned the repatriation of Ayman Batarfi, a Yemeni
detainee; his JTF-GTMO threat assessment had suggested involvement in al-Qaeda’s
anthrax program. (Wolf Letter at E1332, McCraw Decl., Ex. 8.) In response, John
Brennan—the Assistant to the President for Homeland Security and Counterterrorism—
pointed to the Batarfi’s Threat Assessment to defend the Obama Administration’s
detainee policy in an unclassified February 1, 2010, letter on White House letterhead sent
to Speaker of the House Nancy Pelosi. (Brennan Letter at 2, McCraw Decl., Ex. 9 (letter
as obtained and published by ABC News).) Brennan wrote that “the task force thoroughly
reviewed all information available to the government about this individual and concluded
that there is no basis for the assertions [about anthrax].” (Id.)
In June 11, 2009, December 20, 2009, and January 21, 2010, press releases, the Justice
Department relied on the Threat Assessments as justification for: (1) the release of four
Uighur detainees to Bermuda; (2) the transfer of 12 detainees to Afghanistan, Yemen,
and Somaliland; and (3) the transfer of two Algerian detainees, Hasan Zemiri and Adil
Hadi al Jazairi Bin Hamlili, to the custody of the Algerian government. For example, in
the June 11 release, the Justice Department justified the release of the Uighur detainees to
Bermuda on the basis of “the interagency Guantanamo Review Task Force conduct[ing] a
comprehensive review of the four, including a threat evaluation, and approv[ing] them for
resettlement.” (McCraw Decl., Ex. 10; see also McCraw Decl., Exs. 11 & 12.)
Matthew Olsen’s Public Statements
Olsen, the Task Force head, made several statements about the Task Force’s work at July
26, 2011, and January 31, 2012, hearings before the Senate Select Committee on Intelligence.
Ahead of the July 26 hearing, Sen. Saxby Chambliss asked Olsen whether White House
policy goals influenced the Task Force’s handling of facts in the Threat Assessments.
(2011 Olsen Testimony at 4, McCraw Decl, Ex. 13.) In a written statement, Olsen
responded that desired policy outcomes had nothing to do with it: The Task Force
conducted an “impartial and comprehensive review of a more complete set of
information” than relied on in past threat assessments (i.e., the JTF-GTMO assessments),
and “[i]n every case, this information was presented to [the Review Panel].” (Id. at 13).
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Olsen also addressed this issue during his oral testimony: “There was never, at any time,
any effort . . . to hide from any fact. The explicit guidance—my particular responsibility,
I believed, was to follow every fact and be as precise and specific and rigorous in
analyzing those facts and then presenting that information to policy-level decisionmakers.
. . . In particular, JTF-GTMO—joint task force at Gitmo—had prepared assessments. We
looked at those. Those were all part of our information. And in many cases—most cases,
I believe—we agreed with those assessments. But there were instances when we looked
at those facts and came to different conclusions. But there was never, on any occasion, an
effort to change, alter or hide from those facts.” (Id. at 74.)
Challenged by Sen. Chambliss on the policy wisdom of transferring certain detainees to
Yemen, Olsen, who was “present for some of the discussions” at the Review Panel or
Principals level, pointed to the Threat Assessments: “The question was, could the Yemeni
government and security forces handle the security measures that would be necessary to
ensure that those transfers were handled responsibly? Our process had a very strict
standard. No detainee would be eligible for transfer unless any threat that detainee posed
could be sufficiently mitigated through adequate and appropriate security measures in the
host country—in the destination country.” (Id. at 89.)
Olsen defended the integrity of the Administration’s detainee policy and practice—in the
face of criticism from Sen. Chambliss—by crediting not the Review Panel or Principals,
but the work of the Task Force, suggesting strongly that its reasoning and conclusions
were largely adopted in the detainee dispositions: “And I think, if I may, Senator, say the
results of the review, the recommendations and the analysis we did, resulting in
unanimous decisions on 240 detainees, speak for themselves . . . .” (Id. at 91.)
Olsen assigned credit to the Task Force for persuading the decisionmakers that certain
detainees, while they could not be tried, also were too great a threat to transfer to another
country: “[T]here were also 48 decisions to hold those detainees under the laws of war.
When we started the review in January of 2009, that was not necessarily even considered
an option. We pushed for that as the right option for 48 detainees—that they could not be
tried, there was not evidence to try them. They could not be transferred safely. They
needed to be held indefinitely under the laws of war.” (Id. at 91.)
Separately, at a January 31, 2012, hearing before the Senate Select Committee on
Intelligence, Sen. Chambliss asked Olsen whether his view of the five Taliban detainees
exchanged for an American hostage, Army Sergeant Bowe Bergdahl, had changed, given
that the Task Force had placed them among the 48 detainees who could neither be
prosecuted nor transferred. (2012 Olsen Testimony at 50, McCraw Decl., Ex. 14.) Olsen,
in his response, said of the decision to hold the five detainees indefinitely: “[T]hey were
subject to the review we conducted in 2009 that determined that. I believe these were
among the 48 who were deemed too dangerous to release and who could not be
prosecuted.” (Id. at 51.)

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Congressional Understanding
Several members of Congress—some with oversight responsibility for various parts of
the Intelligence Community and corresponding sophistication in that policy area—came to
understand the Threat Assessments as one of the Obama Administration’s principal tools for
justifying detainee transfers. Their public letters and statements demonstrate that they believed
the Administration had adopted—and was publicly touting as support for its detainee transfer
policy—the reasoning and conclusions of the Threat Assessments.
In a May 7, 2010, letter to National Security Advisor Gen. James Jones, several members
of Congress requested the “findings and recommendations for the disposition of each
detainee case, since such information is being used as the basis for all decisions being
made with respect to each detainee.” (McCraw Decl., Ex. 15.)
In a June 4, 2014, letter, Sen. Chambliss—vice chairman of the Senate Select Committee
on Intelligence and a fierce opponent of transferring Guantanamo detainees—stated that
he understood that the Administration justified detainee transfer decisions on the basis of
the Threat Assessments, which he sought to have declassified: “Since 2011, I have
opposed this transfer [of the five Taliban detainees exchanged for Bergdahl] because of
the threat these detainees pose. While I have been able to see the intelligence, the
American people have not. In order to fully evaluate the validity of this transfer and
decide for themselves, the American people should be afforded the opportunity to see as
much of this intelligence as possible.” (McCraw Decl., Ex. 16.)
Similarly, on June 10 and 11, 2014, respectively, in the wake of the Taliban transfer,
House Armed Services Committee members Reps. Jackie Walorski—joined by six other
members of Congress—and Tulsi Gabbard issued statements noting that the Threat
Assessments for these five detainees had found them too dangerous to transfer. In making
that point, Reps. Walorski and Gabbard made clear that they, like Sen. Chambliss,
understood the Threat Assessments to be one of the Administration’s principal
justifications for its detainee transfer decisions. (McCraw Decl., Exs. 17 & 18.)
The FOIA Request
On behalf of The Times, Plaintiff Charlie Savage, on June 13, 2016, filed a FOIA request
with DOJ’s National Security Division and the Office of the Director of National Intelligence
(“ODNI”) for: “the threat assessments of Guantanamo detainees produced by the six-agency
executive order task force appointed in 2009 to review each remaining prisoner and led by Matt
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Olsen.” (McCraw Decl. ¶ 2; O’Keefe Decl., Ex. A.) The request was forwarded to DOJ’s Office
of Information Policy, which acknowledged receipt on July 12, 2016. (McCraw Decl. ¶ 3;
O’Keefe Decl., Ex. B.) FOIA’s deadlines passed with no response, and so The Times was
deemed to have exhausted its administrative remedies under 5 U.S.C. § 552(a)(6)(C). See
Manfredonia v. SEC, No. 08-CV-1678(SLT)(LB), 2009 U.S. Dist. LEXIS 112491, at *20
(E.D.N.Y. Dec. 3, 2009). The Times brought this action against DOJ and ODNI on August 2,
2016.
Pursuant to the Court’s order of October 25, 2016 (Dkt. No. 14), DOJ and ODNI
submitted three randomly selected samples of the Threat Assessments to the Court for ex parte,
in camera review. (Dkt. No. 15.) On February 27, 2017, the parties stipulated to the dismissal of
Defendant ODNI. (Dkt. No. 17.) Also on February 27, 2017, DOJ responded to The Times’s
FOIA request. DOJ informed The Times that it was withholding the Threat Assessments in full
pursuant to the deliberative-process privilege and Exemption 5 to FOIA’s disclosure mandate, 5
U.S.C. § 552(b)(5). (McCraw Decl. ¶ 4; O’Keefe Decl., Ex. C.) DOJ also stated that it was
withholding portions of the Threat Assessment on the basis of numerous other exemptions:
Exemptions 1, 3, 5 (work-product privilege), 3 6, and 7(A)-(E). See 5 U.S.C. § 552(b)(1), (b)(3),
(b)(5), (b)(6), (b)(7)(A)-(E). (McCraw Decl. ¶ 4; O’Keefe Decl., Ex. C.) At the same time as it
filed its motion for summary judgment, DOJ also produced a Vaughn index 4 for the Threat
Assessments. (O’Keefe, Decl. H.)

3

DOJ has since dropped this contention. (See Mem. of Law in Supp. of Def.’s Mot. for
Summary Judgment at 6 n.2.)
4
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
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ARGUMENT
FOIA contains a disclosure mandate limited only by nine enumerated exemptions. 5
U.S.C. § 552(a)(3)(A), (b)(1)-(9). “The ‘basic purpose [of FOIA] reflected a general philosophy
of full agency disclosure unless information is exempted under clearly delineated statutory
language.’” Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., 601 F.3d 143, 147
(2d Cir. 2010) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360-61 (1976)). In light of this
purpose, “FOIA exemptions are to be construed narrowly, ‘resolving all doubts in favor of
disclosure.’” Assoc. Press v. Dep’t of Defense, 554 F.3d 274, 283 (2d Cir. 2009) (quoting Wood
v. FBI, 432 F.3d 78, 82-83 (2d Cir. 2005)). There is a “‘strong presumption in favor of disclosure
[that] places the burden on the agency to justify the withholding of any requested documents.’”
Id. at 283 (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).
FOIA litigation is typically resolved on summary judgment. See, e.g., Carney v. Dep’t of
Justice, 19 F.3d 807, 812 (2d Cir. 1994). In a FOIA case, as in other litigation, summary
judgment is properly granted when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Bryant v. Maffuci,
923 F.2d 979, 982 (2d Cir. 1991). 5 Under FOIA, “the agency bears the burden of demonstrating
that an exemption applies.” Brennan Ctr. for Justice v. Dep’t of Justice, 697 F.3d 184, 194 (2d
Cir. 2012). Failure to meet that burden requires disclosure of the requested documents. See Nat’l
Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 355 (2d Cir. 2005).

5

The Times has not submitted a Local Rule 56.1 statement in accord with the practice in FOIA
cases in this District. See N.Y. Times Co. v. Dep’t of Justice, 872 F. Supp. 2d 309, 314 (S.D.N.Y.
2012) (“[T]he general rule in this Circuit is that in FOIA actions . . . Local Civil Rule 56.1
statements are not required”).
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A Court reviews de novo an agency’s decision to withhold information from the public. 5
U.S.C. § 552(a)(4)(B). As a result, the agency’s decision as to the applicability of a given
exemption is entitled to no judicial deference. See Bloomberg, 601 F.3d at 147. Although courts
review reasonably detailed agency affidavits with a presumption of good faith, this primarily is
for determining the need for further fact-finding. See, e.g., Wood, 432 F.3d at 85; see also Wilner
v. NSA, 592 F.3d 60, 69, 73 (2d Cir. 2009) (presumption does not replace de novo review by
courts). “Conclusory assertions of privilege will not suffice to carry the government’s burden of
proof in defending FOIA cases.” See Assadi v. U.S. Citizenship & Immigration Servs., 12 Civ.
1374 (RLE), 2015 U.S. Dist. LEXIS 42544, at *13 (S.D.N.Y. Mar. 31, 2015).
Finally, FOIA contains a segregability requirement—even if part of a document is
exempt from disclosure, an agency must still release the non-exempt portions that can be
separated out through redaction. See 5 U.S.C. § 552(b); see also Donovan v. FBI, 806 F.2d 55,
58 (2d Cir. 1986) (agencies must “segregate their disclosable and non-disclosable portions”).
I.
THE EXEMPTION 5 DELIBERATIVE-PROCESS
PRIVILEGE DOES NOT JUSTIFY WITHHOLDING
THE THREAT ASSESSMENTS IN FULL
DOJ has failed to demonstrate that the deliberative-process privilege permits it to
withhold the Threat Assessments in full pursuant to Exemption 5. (See Mem. of Law in Supp. of
Def.’s Mot. for Summary Judgment (“DOJ Mem.”) at 8-14.) Exemption 5 permits an agency to
decline to disclose “inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). The deliberative-process privilege is among the privileges that apply through
Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-51 (1975). To prove that a
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document deserves the protection of the deliberative-process privilege under Exemption 5, an
agency must show that the document was (1) predecisional and (2) deliberative. See Grand
Central P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999). To be pre-decisional, a
document must precede an agency decision and be prepared in order to assist an agency in
arriving at its decision. See Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 84 (2d
Cir. 1991). Documents are deliberative when they comprise part of the agency’s decision-making
process. Id.
There are two important limitations on Exemption 5, both relevant here. First, “purely
factual material” contained in otherwise deliberative documents does not fall within the scope of
the privilege so long as it is severable from the truly deliberative portions. See EPA v. Mink, 410
U.S. 73, 88-91 (1973); Grand Central P’ship, 166 F.3d at 482. Second, even if a document is
predecisional and deliberative, the deliberative-process privilege gives way where the agency has
“expressly adopted” the document’s conclusions and reasoning or incorporated them by
reference. See La Raza, 411 F.3d at 356-60. Express adoption occurs when the government
relies on the document’s rationale to justify government policy. See Brennan, 697 F.3d at 20102; La Raza, 411 F.3d at 358. The purpose behind the express adoption doctrine is
straightforward: The government should not be permitted to publicly adopt a policy position and
then deny the public the right to know the analysis underlying it. See Brennan, 697 F.3d at 205;
La Raza, 411 F.3d at 360.
Here, DOJ has failed to meet its burden in two respects. First, the government expressly
adopted the Threat Assessments. Second, even if that were not so, DOJ has not demonstrated
that the Threat Assessments consist entirely of “deliberative” material and must segregate and
release the factual portions.
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A. The Obama Administration Expressly Adopted the Task Force’s Reasoning and
Conclusions
Over the years, senior government officials have relied repeatedly and publicly on the
strength of the reasoning and conclusions of the Threat Assessments to defend the Obama
Administration’s detainee policy. They have clearly and specifically adopted the Threat
Assessments pertaining to two of the three categories of detainees: (1) the 126 detainees deemed
sufficiently unthreatening to transfer and the 30 Yemenis approved for conditional detention and
(2) the 48 detainees deemed untriable but too dangerous to transfer or release. More broadly,
taken as a whole, the public statements were understood by Congress and others to establish that
the Administration had adopted the reasoning and conclusion of the Threat Assessments as a
core part of its detainee policy generally. DOJ attempts to skirt this reality by advancing a
reading of the law in this area so narrow it cannot be squared with Second Circuit precedent.
The Second Circuit has observed that an agency has a choice: it often does not have to
explain its policy rationale in public, but “where it determines there is an advantage to doing so
by referencing a protected document as authoritative, it cannot then shield the authority upon
which it relies from disclosure.” Brennan, 697 F.3d at 205; see also La Raza, 411 F.3d at 360.
This is particularly true where the government relies on a document to justify publicly a policy
change. See La Raza, 411 F.3d at 358.
Far from the formalistic exercise DOJ presents in its brief (DOJ Mem. at 10-12), the
appropriate express adoption inquiry, the Second Circuit has said explicitly, is a functional
totality-of-the-circumstances analysis that reflects the doctrine’s pragmatic purpose: “[C]ourts
must examine all the relevant facts and circumstances in determining whether express adoption
or incorporation by reference has occurred.” La Raza, 411 F.3d at 357 n.5 (emphasis omitted).
In fact, the Second Circuit in La Raza specifically rejected the bright-line test the DOJ urged at
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the time and urges now (DOJ Mem. at 10-12), “whereby a document may be deemed expressly
adopted or incorporated only in the event that an agency, in essence, uses specific, explicit
language of adoption or incorporation.” La Raza, 411 F.3d at 357 n.5. Indeed, there is no
requirement that an agency explicitly admit its reliance on a particular document in the public
statements that support adoption. See Nat’l Day Laborer Org. Network v. ICE, 827 F. Supp. 2d
242, 258-260 (S.D.N.Y. 2011); Bronx Defenders v. Dep’t of Homeland Sec., No. 04-cv-8576
(HB), 2005 U.S. Dist. LEXIS 33364 at *18-20 (S.D.N.Y. Dec. 19, 2005).
Here, the record demonstrates that the government expressly adopted the Threat
Assessments. Most specifically, it demonstrates express adoption with respect to the assessments
of the detainees approved for transfer, release, or conditional detention and the detainees held
indefinitely without charge. As a result, more generally, it demonstrates express adoption with
respect to the Threat Assessments as a whole. A variety of senior government officials have
relied publicly on the strength of the reasoning and conclusions behind the Threat Assessments
to rebut criticism of the Obama Administration’s detainee transfer policy and to justify the
decision to hold 48 detainees indefinitely without trial.
Attorney General Holder—a Principal in and the coordinator of the Guantanamo review
process—grounded April 2010 congressional testimony on the Administration’s transfer policy
in the Task Force’s work, describing the Task Force, rather than the Review Panel or the
Principals, as “determining [detainees’] suitability for prosecution or for transfer to another
country.” (Holder Statement at 5, McCraw Decl., Ex. 6.) In 2009 and early 2010, Justice
Department press releases highlighted the “threat evaluation” conducted by the Task Force to
justify transfers and releases. (McCraw Decl., Exs. 10-12.)

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In 2011, Wikileaks published the Bush-era JTF-GTMO threat assessments, which
contradicted some of the Obama-era detainee dispositions and led to questions about whether
political motives—President Obama’s promise to close Guantanamo—had tainted the detainee
transfer deliberations. In response, the Pentagon press secretary, Geoff Morrell, and the Special
Envoy for Closure of the Guantanamo Detention Facility Dan Fried sought to quell the criticism
by highlighting the careful reasoning and comprehensive review behind the Threat Assessments
to explain why they at times led to the conclusion that some detainees could be transferred when
the JTF-GTMO assessments suggested they were very dangerous. (McCraw Decl., Ex. 5.)
Similarly, when a congressman criticized the repatriation of Yemeni detainee Ayman Batarfi—
his JTF-GTMO threat assessment had linked him to weapons of mass destruction—John
Brennan, the Assistant to the President for Homeland Security and Counterterrorism, pointed to
the Task Force’s thorough review in Batarfi’s Threat Assessment to underscore the soundness of
the transfer decision. (Brennan Letter at 2, McCraw Decl., Ex. 9; Wolf Letter at E1332, McCraw
Decl., Ex. 8.) In 2011 Senate testimony, Olsen, the executive director of the Task Force,
defended the Administration’s transfer policy not in terms of the Review Panel or the Principals,
but in terms of the Task Force’s work. “I think, if I may,” he told Sen. Chambliss. “[T]he results
of the review, the recommendations and the analysis we did, resulting in unanimous decisions on
240 detainees, speak for themselves . . . .” (2011 Olsen Testimony at 91, McCraw Decl., Ex. 13.)
He also justified the policy wisdom of transferring Yemenis by pointing to the sound process and
reasoning that produced their Threat Assessments. (Id. at 89.)
Even years later, in 2016, Lee Wolosky, the Special Envoy for Guantanamo Closure at
the State Department, defended Obama’s detainee transfer policy by emphasizing the strong
reasoning behind the Threat Assessments’ conclusions, observing that the Task Force
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recommended transfer only after “giving careful consideration to the threat posed by detainees,
the reliability of the underlying information, and the interests of national security.” (July 7
Wolosky Testimony at 1-2 & Mar. 23 Wolosky Testimony at 2-3, McCraw Decl., Exs. 1-2.)
Similarly, in 2015, two other Defense Department officials, Brian McKeon, the principal deputy
for policy, and Paul Lewis, the Special Envoy for Guantanamo Closure, pointed to the Threat
Assessments—not the Review Panel’s disposition—as the “foundational analysis,” in Lewis’s
words, for all subsequent transfer decisions. (Lewis Statement at 28-29, McCraw Decl., Ex. 3;
see also McKeon Testimony at 41-42, McCraw Decl., Ex. 4.) McKeon called the Threat
Assessments a “[k]ey feature” justifying the Administration’s detainee transfer process,
describing the Threat Assessments as the result of “a comprehensive interagency review and
rigorous examination of information regarding the detainee . . . conducted by career
professionals.” (McKeon Testimony at 7, McCraw Decl., Ex. 4.)
Top Administration officials also relied on the Threat Assessments to defend the equally
contentious decision to imprison 48 detainees indefinitely without charge. Attorney General
Holder, in April 2010, defended that decision on the basis of the Task Force’s “very able” work
and pointed out that the Task Force’s recommendations as to these detainees were “unanimously
agreed to by the principals.” (Holder Testimony at 28, McCraw Decl., Ex. 7.) 6 Olsen similarly
told the Senate Intelligence Committee twice that the reasoning and conclusions of the Threat
Assessments of those 48 detainees led the Administration to hold them indefinitely. (2011 Olsen
Testimony at 91, McCraw Decl., Ex. 13; 2012 Olsen Testimony at 51, McCraw Decl., Ex. 14.)
6

DOJ’s declarant suggests that in some unspecified number of cases—and she is oddly vague on
this point—the Review Panel diverged from the Task Force’s recommendation. (O’Keefe Decl. ¶
23.) Whether that was true for the 48 indefinite detention detainees, she does not say. In any
event, the public statements of Holder and Olsen clearly attribute the outcome to the Task Force
rather than the Review Panel or the Principals.
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To be sure, none of these statements set out the specific reasoning in the Threat
Assessments that guided the Obama Administration’s detainee policy. But Second Circuit
precedent does not require that. In Brennan, 697 F.3d at 204-05, express adoption was found
based on nothing more than a reference to the underlying document in a single footnote in a
guidance document being given to public officials and a passing reference to the document in
congressional testimony. Neither discussed the actual rationale contained in the underlying
document. Id.
The fact that members of Congress understood the Administration to have adopted the
reasoning and conclusions of the Threat Assessments is further evidence of how the
Administration was using the documents to justify its detainee policy. See La Raza, 411 F.3d at
357 n.5 (the express adoption doctrine requires courts to “examine all the relevant facts and
circumstances”). In May 2010, several members of Congress, in a public letter to National
Security Advisor Gen. James Jones, described the “findings and recommendations” of the Task
Force as “the basis for all decisions being made with respect to each detainee.” (McCraw Decl.,
Ex. 15.) In 2013, Congress voted to make this reliance statutory: the Secretary of Defense, before
transferring a detainee from Guantanamo, was now mandated by law to consider “[t]he
recommendations of the Guantanamo Detainee Review Task Force established pursuant to
Executive Order No. 13492.” National Defense Authorization Act for Fiscal Year 2014, Pub. L.
133-66, § 1035(c)(1), 127 Stat. 672, 852 (2013). In 2014, Congress erupted in anger after the
Administration transferred to Qatar five Taliban detainees, whose Threat Assessments had not
cleared them for transfer, in exchange for an American hostage, Army Sergeant Bowe Bergdahl.
In letters and statements, Sen. Chambliss, vice chairman of the Senate Select Committee on
Intelligence, and Reps. Jackie Walorski—joined by six other members of Congress—and Tulsi
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Gabbard, of the House Armed Services Committee, characterized the Threat Assessments as core
to the Administration’s detainee transfer policy. (McCraw Decl., Exs. 16-18.)
B. DOJ Has Failed to Show That Factual Material Within the Threat Assessments
Can Be Withheld under Exemption 5
Even if express adoption had not occurred, DOJ would still be required to segregate out
the factual portions of the Threat Assessments to be released. DOJ is correct, in the abstract, that
Exemption 5 protects “factual materials . . . ‘inextricably intertwined’ with policy making
recommendations so that their disclosure would ‘compromise the confidentiality of deliberative
information that is entitled to protection under Exemption 5.’” Lead Indus. Ass’n v. OSHA, 610
F.2d 70, 85 (2d Cir. 1979) (quoting Mink, 410 U.S. at 91). (See DOJ Mem. at 12-13.) But DOJ
provides only a conclusory explanation for why it is not possible to segregate the fact from the
analysis of that fact. (See O’Keefe Decl. ¶ 15.) That is not enough for it to meet its burden. In
fact, the Second Circuit has rejected precisely this kind of ipse dixit declaration and required in
camera review to evaluate segregability. See Hopkins, 929 F.2d at 85-86 & n.3 (remanding for in
camera review of records for segregability of facts from deliberative material in face of
conclusory agency declaration); see also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 82 (2d Cir.
2002) (Sotomayor, J.) (conducting de novo in camera review to determine whether factual
material segregable).
DOJ’s own declaration belies its efforts to shoehorn the Threat Assessments into the
inextricably-intertwined exception. According to DOJ’s declarant, the Threat Assessments
contain “specific pieces of evidence,” (O’Keefe Decl. ¶ 15; see also Final Report at 5-6, O’Keefe
Decl., Ex. E (examples of types of factual material)), each of which was subject to a “candid
evaluation[] of [its] reliability and credibility” (O’Keefe Decl. ¶ 15). “[I]n some instances,” that
evaluation concluded that a reported fact was “non-credible.” (Id. ¶ 32.) DOJ fails to explain why
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those discrete facts are not segregable. See, e.g., Natural Res. Def. Council v. Nat’l Marine
Fisheries Serv., 409 F. Supp. 2d 379, 384-85 (S.D.N.Y. 2006) (requiring agency to segregate,
within a single bullet point, factual material from deliberative material in a preliminary report);
Adams v. United States, 673 F. Supp. 1249, 1259 (S.D.N.Y. 1987) (requiring segregation and
redaction at sentence-by-sentence level).
DOJ fares no better when it contends—stretching the law to the breaking point—that the
Task Force’s selection of facts means that the facts themselves reflect a deliberative process and
therefore cannot be disclosed. (DOJ Mem. at 13-14.) To be sure, courts have said that the
selection of particular facts may itself “necessarily involve[] policy-oriented judgment.” Nat’l
Sec. Archive v. CIA, 752 F.3d 460, 465 (D.C. Cir. 2014) (emphasis omitted). But it is not correct,
as DOJ would have it, that anytime a fact is selected it becomes deliberative material. If that
were so, it would nullify the factual-material exception, which the Supreme Court and the
Second Circuit have long recognized. See Mink, 410 U.S. at 88-91; Grand Central P’ship, 166
F.3d at 482. As the D.C. Circuit has said:
Anyone making a report must of necessity select the facts to be mentioned in it; but a
report does not become a part of the deliberative process merely because it contains only
those facts which the person making the report thinks material. If this were not so, every
factual report would be protected as a part of the deliberative process.
Playboy Enter., Inc. v. Dep’t of Justice, 677 F.2d 931, 935 (D.C. Cir. 1982).
Wherever the line between factual material and facts-as-deliberative material may be,
here the documents plainly rest on the factual-material side of the line. Olsen, the Task Force
director, strenuously rejected the suggestion, made during a Senate hearing, that the Task Force’s
selection of facts to include in the Threat Assessment involved policy-oriented judgment or was
in any way influenced by Obama Administration policy goals. (See 2011 Olsen Testimony at 4,
13, McCraw Decl., Ex. 13.) “There was never, at any time, any effort . . . to hide from any fact,”
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he told the Senate. “The explicit guidance—my particular responsibility, I believed, was to
follow every fact and be as precise and specific and rigorous in analyzing those facts and then
presenting that information to policy-level decisionmakers.” (Id. at 74.)
II.
DOJ HAS NOT JUSTIFIED WITHHOLDING OFFICIALLY
ACKNOWLEDGED OR OFFICIALLY DISCLOSED
FOREIGN RELATIONS INFORMATION UNDER EXEMPTION 1
DOJ invokes Exemption 1 to justify the redaction of four categories of information: (1)
intelligence sources and methods; (2) foreign government information provided to the United
States in confidence; (3) information relating to military and counterterrorism operations,
including certain operational details about Guantanamo Bay; and (4) information pertaining to
the foreign relations or activities of the United States. (DOJ Mem. at 14-18.) The Times
challenges only the fourth category of redaction, to the extent that it is too broadly stated and
raises concerns about official acknowledgment or official disclosure. 7 See N.Y. Times Co. v.
Dep’t of Justice, 756 F.3d 100, 120-21 (2d Cir. 2014) (disclosure of an agency’s Exemption 1protected material proper where that agency has officially acknowledged same type of
information and disclosure of exempt information will “add[] nothing to the risk” created by
prior disclosures); Florez v. CIA, 829 F.3d 178, 183-87 (2d Cir. 2016) (record evidence of

7

DOJ also invokes Exemption 3 and a number of national security-related non-disclosure
statutes to support the exemption of five categories of information: (1) intelligence sources and
methods, (2) information about the activities of the National Security Agency, (3) information
obtained through communications intelligence activity, (4) certain organizational details about
the Defense Intelligence Agency, and (5) the personal identifying information of certain
members of the armed services. (DOJ Mem. at 18-21.) The Times has no grounds at present to
challenge these claims. In the event evidence emerges later in this litigation suggesting the
declarations were made in bad faith, The Times reserves its right to take appropriate steps to
challenge the invocation of the exemption, as well as the other categories of information
withheld under Exemption 1.
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official disclosures by other agencies relevant to analysis of whether Exemption 1 justification is
logical and plausible).
The various agency declarants describe “information pertaining to the foreign relations or
foreign activities of the United States” in potentially over-inclusive terms. (See DOJ Mem. at 1718; see also Declaration of Mark W. Ewing ¶ 17; Declaration of David M. Hardy (“Hardy
Decl.”) ¶¶ 26-27; Declaration of Department of Defense Official ¶¶ 20-21.) Of course, in the
process of transferring detainees to third-party countries, both the United States and the receiving
country have repeatedly described some of the communications between the two countries in
order to facilitate the transfer. See, e.g., Dep’t of Def., Press Release, Detainee Transfers
Announced (Jan. 19, 2017), available at http://bit.ly/2p4upl9; Gov’t of Montenegro, Press
Release, Montenegro Receives Another Person Within Humanitarian Programme of Resocialisation of Prisoners from Guantanamo (June 22, 2016), available at http://bit.ly/2p4pAIu;
Dep’t of Justice, Press Release, United States Transfers Six Uighur Detainees from Guantanamo
Bay to Palau (Oct. 31, 2009), available at http://bit.ly/2p0iDWS. To the extent the agency
declarants mean to include this type of information within the scope of foreign relations and
foreign activities information, DOJ has offered no logical or plausible justification for its
continued classification. See Florez, 829 F.3d at 184-85. 8

8

Parenthetically, DOJ overstates the deference it receives on Exemption 1 questions. (DOJ
Mem. at 14-15.) To be sure, on factual national security matters, the courts accord “substantial
deference to agency affidavits that implicate national security.” Assoc. Press v. Dep’t of Defense,
498 F. Supp. 2d 707, 710 (S.D.N.Y. 2007). But courts do not give any deference to the agency’s
ultimate determination and resolve all doubts in favor of disclosure, even in national security
cases. See Halpern, 181 F.3d at 287. As amended, FOIA empowered courts to undertake de novo
review “in all cases” and “extended the language of FOIA’s provision for in camera review to
encompass Exemption 1.” Id. at 291 (emphasis added). “[B]lind deference is precisely what
Congress rejected when it amended FOIA in 1974.” Id. at 293. “[D]eference is not equivalent to
acquiescence.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998).
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III.
DOJ HAS FAILED TO CARRY ITS BURDEN
WITH RESPECT TO EXEMPTIONS 7(B), 7(D) & 7(E)
Exemption 7(B). DOJ has not carried its burden to show that Exemption 7(B) applies to
parts of the Threat Assessments. Exemption 7(B) permits an agency to withhold records or
information compiled for a law enforcement purpose, but only insofar as disclosure of them
“would deprive a person of a right to a fair trial or an impartial adjudication.” 5 U.S.C. §
552(b)(7)(B). For a record or information to receive the protection of Exemption 7(B): (1) a trial
or adjudication must be “pending or truly imminent” and (2) it must be “more probable than not
that disclosure of the material sought would seriously interfere with the fairness of those
proceedings.” Wash. Post v. Dep’t of Justice, 863 F.2d 96, 102 (D.C. Cir. 1988). Exemption 7(B)
poses a particularly high evidentiary hurdle: whereas the other sub-sections of Exemption 7
“permit records to be withheld if release ‘could reasonably be expected to’ cause a particular
evil,” Exemption 7(B) “requires that release ‘would’ deprive a person of fair adjudication.” Id.
As to the first prong, the FBI avers that, for some detainees, “law enforcement
proceedings are ongoing or are reasonably anticipate[d].” (Hardy Decl. ¶ 38.) As an initial
matter, Exemption 7(B), by its own terms, does not apply to a “law enforcement proceeding,”
but only to “trial[s]” and “adjudication[s].” Compare 5 U.S.C. § 552(b)(7)(A) (referring to
“enforcement proceeding”), with id. § 552(b)(7)(B) (referring only to “trial” and “adjudication”).
Even assuming the FBI meant “trial,” some of the information it wants protected still does not
satisfy Exemption 7(B)’s first prong. Part of the allegedly exempt information pertains to
“detainees for whom law enforcement proceedings . . . are reasonably anticipate[d].” (Hardy
Decl. ¶ 38.) “Reasonably anticipated” is a far cry from “truly imminent.”

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As to the second prong, the FBI’s declaration does not plausibly demonstrate that
disclosure “would” deprive any particular detainee a fair trial. Instead, it makes two generalized
and speculative assertions. “Premature release” of the Threat Assessments: (1) “could unfairly
impact ongoing or prospective proceedings and jeopardize the detainee’s ability to receive a fair
and impartial trial” and (2) “could also provide access to information not already available to the
detainee under the discovery rules and thus would confer an unfair advantage on one of the
parties.” (Hardy Decl. ¶¶ 38-39 (emphasis added).) Could not would—and that, of course, is not
enough. See Wash. Post, 863 F.2d at 102 (must show that unfairness “would” result and not
enough that, in the abstract, unfairness “may” flow from disclosure).
Exemption 7(D). DOJ’s invocation of Exemption 7(D) is plainly insufficient under
Second Circuit law. Exemption 7(D) permits an agency to withhold records or information
compiled for law enforcement purposes, but only insofar as they could reasonably be expected to
disclose a confidential source’s identity. 5 U.S.C. § 552(b)(7)(D). Although both express and
implied promises of confidentiality can suffice, see U.S. Dep’t of Justice v. Landano, 508 U.S.
165, 172 (1993), it is not enough simply to say it is so. See Halpern v. FBI, 181 F.3d 279, 298-99
(2d Cir. 1999); cf. Intellectual Prop. Watch v. U.S. Tr. Rep., No. 13-cv-8955(ER), 2016 U.S.
Dist. LEXIS 118209, at *28 n.11 (S.D.N.Y. Aug. 31, 2016); see also Landano, 508 U.S. at 17980 (in case involving implied confidentiality, agency must still present particular facts to justify
finding).
Here, two source categories fail to meet the Second Circuit’s evidentiary standard. While
the FBI establishes express confidentiality with foreign government agencies (Hardy Decl. ¶¶
50-53), it fails to make the appropriate showing for the names and identifying data for informants
that it claims to have offered either express or implied assurances of confidentiality. As to
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express confidentiality, the FBI’s declarant provides only the “bare assertions” of confidentiality
that Halpern, 181 F.3d at 299, deemed “insufficient.” (See Hardy Decl. ¶¶ 47-49, 54.) As to
implied confidentiality, the FBI offers only vague generalities. (Id. ¶¶ 55-57.) It fails to
provide—even in camera 9—the kind of particularized showing required by the Supreme Court
and the Second Circuit. See Landano, 508 U.S. at 174-80; Halpern, 181 F.3d at 299-300.
Exemption 7(E). Exemption 7(E) protects records or information compiled for law
enforcement purposes, but only to the extent they “would disclose techniques and procedures for
law enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law . . . .” 5 U.S.C. § 552(b)(7)(E). The Times does not challenge most
of the FBI’s Exemption 7(E) invocations. It does, however, call into question the withholding of
database search results. (DOJ Mem. at 25; Hardy Decl. ¶ 64.)
The results of applying a known law enforcement technique or procedure are entitled to
protection under Exemption 7(E) only if the results would reveal something unknown about the
technique. See Schwartz v. DEA, No. 13-cv-5004(CBA), 2016 U.S. Dist. LEXIS 3696, at *32-35
(E.D.N.Y. Jan. 8, 2016); see also Rosenfeld v. Dep’t of Justice, 57 F.3d 803, 815 (9th Cir. 1995).
Here, the FBI, at least in its public declaration, has not met its burden to explain plausibly how
and whether the search results in this case would reveal something unknown about a technique or
procedure. While the databases are non-public, the FBI does not contend that its use of the
databases is not publicly known. (See Hardy Decl. ¶ 64.) It does no more than assert, in entirely
general terms, that printouts, information from search results, and information about what

9

The FBI’s in camera declaration provides support only for its invocations of Exemptions 1, 3,
and 7(E). (Hardy Decl. ¶ 12 n.3.)
24
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database the FBI searched might reveal a secret. (Id.) That falls far short of showing how
disclosure of the responsive records in this case plausibly would reveal something new about the
technique—the search of a database—itself. See Schwartz, 2016 U.S. Dist. LEXIS 3696, at *35,
*41-68. 10
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully asks this Court: (i) to deny DOJ’s
motion for summary judgment and to grant Plaintiffs’ cross-motion for summary judgment; (ii)
to order DOJ to make public within 20 days, pursuant to 5 U.S.C. § 552, the portions of the
Threat Assessments as to which there can be no lawful redactions; (iii) to award the Plaintiffs the
costs of this proceeding, including reasonable attorney’s fees, as expressly permitted by FOIA,
id. § 552(a)(4)(E); and (iv) to grant such other and further relief as the Court deems just and
proper.
Dated: New York, NY
April 24, 2017
Respectfully submitted,
By: _/s/ David E. McCraw
David E. McCraw, Esq.
Ian MacDougall, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue, 18th Floor
New York, NY 10018
phone: (212) 556-4031
fax: (212) 556-4634
e-mail: mccraw@nytimes.com
Attorneys for Plaintiffs

10

The Times does not challenge redactions pursuant to Exemptions 6, 7(A), and 7(C). See 5
U.S.C. § 552(b)(6), (7)(A), (7)(C).
25

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________
X
NEW YORK TIMES COMPANY and
:
CHARLIE SAVAGE,
:
:
Plaintiffs,
:
:
- against :
:
U.S. DEPARTMENT OF JUSTICE,
:
:
Defendant.
:
__________________________________________X

16 Civ. 6120 (RMB)

PLAINTIFFS’ NOTICE OF CROSS-MOTION
FOR SUMMARY JUDGMENT
PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law; the
Declaration of David E. McCraw, dated April 24, 2017, and the attachments thereto; and all prior
papers and proceedings in this action, Plaintiffs The New York Times Company and Charlie
Savage (“The Times”) move the Court for an order denying the motion for summary judgment of
Defendant Department of Justice (“DOJ”) and granting The Times’s cross-motion for summary
judgment by directing DOJ to produce the threat assessments The Times requested under the
Freedom of Information Act, subject to limited redactions as set out in The Times’s
Memorandum of Law. The Times further respectfully requests that the Court award The Times
the costs of these proceedings, including reasonable attorney’s fees, as expressly permitted by 5
U.S.C. § 552(a)(4)(E), and grant such other and further relief as the Court deems just and proper.
PLEASE TAKE FURTHER NOTICE that DOJ will file its reply and opposition to The
Times’s cross-motion by May 1, 2017. The Times will file its reply by May 8, 2017.

1
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Dated: New York, NY
April 24, 2017

Respectfully submitted,
/s/ David E. McCraw
David E. McCraw, Esq.
Ian MacDougall, Esq.
The New York Times Company
Legal Department
620 Eighth Avenue
New York, NY 10018
Phone: (212) 556-4031
Facsimile: (212) 556-1009
Email: mccraw@nytimes.com
Counsel for Plaintiffs
To:
Christopher Connolly
Assistant U.S. Attorney
U.S. Attorney’s Office for the
Southern District of New York
86 Chambers Street
New York, NY 10007
Attorney for Defendant
(via ECF)

2
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
___________________________________________
X
NEW YORK TIMES COMPANY and
:
CHARLIE SAVAGE,
:
:
Plaintiffs,
:
:
- against :
:
U.S. DEPARTMENT OF JUSTICE,
:
:
Defendant.
:
__________________________________________X

16 Civ. 6120 (RMB)

DECLARATION OF DAVID E. McCRAW
IN SUPPORT OF PLAINTIFFS’ CROSS-MOTION
FOR SUMMARY JUDGMENT AND IN
OPPOSITION TO DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

I, DAVID E. MCCRAW, state and declare as follows under penalty of perjury:
1.

I am a Vice President and Deputy General Counsel of The New York Times

Company, publisher of The New York Times newspaper and nytimes.com. I am duly licensed to
practice law in the State of New York and before this Court and serve as counsel of record for
Plaintiffs The New York Times Company and Charlie Savage (collectively, “The Times”). I
make this declaration from my own personal knowledge and a review of publicly available
government documents and in opposition to Defendant’s motion for summary judgment and in
support of Plaintiffs’ cross-motion for summary judgment.
The FOIA Request
2.

On June 13, 2016, The Times submitted a request under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, to Defendant Department of Justice (“DOJ”) and the

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Office of the Director of National Intelligence (“ODNI”), seeking “the threat assessments of
Guantanamo detainees produced by the six-agency executive order task force appointed in 2009
to review each remaining prisoner and led by Matt Olsen” (the “Request”). A true and correct
copy of the Request is attached as Exhibit A to the Declaration of Courtney O’Keefe, attorneyadvisor in DOJ’s Office of Information Policy (the “O’Keefe Declaration”). (See Dkt. No. 26-1.)
3.

On July 12, 2016, DOJ acknowledged receipt of the Request. A true and correct

copy of DOJ’s acknowledgment is attached as Exhibit B to the O’Keefe Declaration. (See Dkt.
No. 26-2.)
4.

More than seven months later, on February 27, 2017, DOJ responded to the

Request, denying it in full (the “Denial”). DOJ informed The Times that it was withholding the
requested records (the “Threat Assessments”) in full, pursuant to the deliberative-process
privilege and Exemption 5 of FOIA’s disclosure mandate, 5 U.S.C. § 552(b)(5). DOJ also stated
that it was withholding portions of the Threat Assessment on the basis of numerous other
exemptions: Exemptions 1, 3, 5 (work-product privilege), 1 6, and 7(A)-(E). See 5 U.S.C. §
552(b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(A)-(E). A true and correct copy of the Denial is attached
as Exhibit C to the O’Keefe Declaration. (See Dkt. No. 26-3.)
Public Statements about the Threat Assessments by Senior Administration Officials
5.

A variety of senior Obama Administration officials have made public statements

in which they rely on the reasoning and conclusions of the Threat Assessments to justify the
Administration’s detainee policy. Official DOJ press releases have placed similar reliance on the
Threat Assessments to justify the transfer and release of certain detainees.

1

DOJ has since dropped this contention. (See Mem. of Law in Supp. of Def.’s Mot. for
Summary Judgment at 6 n.2, Dkt. No. 25.)
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6.

On March 23, 2016, the House Foreign Affairs Committee held a hearing on the

Administration’s plan to close the detention facility at Guantanamo Bay. Lee Wolosky, the
Special Envoy for Guantanamo Closure at the State Department, testified at that hearing. A true
and correct copy of Wolosky’s prepared statement for the hearing is attached as Exhibit 1.
7.

On July 7, 2016, the House Foreign Affairs Committee held another hearing on

the Administration’s plan to close the Guantanamo detention facility. Wolosky testified at that
hearing, too. A true and correct copy of Wolosky’s prepared statement for that hearing is
attached as Exhibit 2.
8.

On February 12, 2015, the House Armed Services Committee’s Subcommittee on

Oversight and Investigations held a hearing on the Administration’s transfer of detainees from
Guantanamo. Paul Lewis, the Special Envoy for Guantanamo Detention Closure at the
Department of Defense, testified at that hearing. A true and correct copy of the Lewis’s prepared
statement for that hearing, as well as other relevant pages from the hearing transcript, is attached
as Exhibit 3.
9.

On February 5, 2015, the Senate Armed Services Committee held a hearing on

Guantanamo and the future of U.S. detention policy. Brian McKeon, the principal deputy
undersecretary for policy at the Defense Department, testified at that hearing. A true and correct
copy of McKeon’s prepared statement and relevant pages from the hearing transcript—including
an excerpt of McKeon’s oral testimony—is attached as Exhibit 4.
10.

On April 24, 2011, Dan Fried, the Special Envoy for Closure of the Guantanamo

Bay Facility at the State Department, and Pentagon Press Secretary Geoff Morrell issued a joint
statement to The New York Times in response to the unauthorized disclosure by the anti-secrecy

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organization Wikileaks of Bush Administration-era threat assessments of Guantanamo detainees.
A true and correct copy of that statement is attached as Exhibit 5.
11.

On April 14, 2010, the Senate Judiciary Committee held a hearing on DOJ

oversight. Attorney General Eric Holder testified at that hearing. A true and correct copy of his
prepared statement for that hearing is attached as Exhibit 6.
12.

A true and correct copy of the relevant pages of Attorney General Holder’s oral

testimony at the April 14, 2010, Senate Judiciary Committee hearing is attached as Exhibit 7.
13.

In early 2010, Rep. Frank Wolf raised questions about the wisdom of repatriating

Ayman Batarfi, a Yemeni detainee, because a Bush Administration-era threat assessment of him
had concluded that he was involved in al-Qaeda’s anthrax program. He expressed his concerns in
a letter to John Brennan, the Assistant to the President for Homeland Security and
Counterterrorism. A true and correct copy of a letter Rep. Wolf sent to Senate Select Committee
on Intelligence Chairwoman Dianne Feinstein outlining his concerns and describing his letter to
Brennan is attached as Exhibit 8.
14.

In response to Rep. Wolf’s concerns, Brennan, on February 1, 2010, sent a letter

on White House letterhead to Speaker of the House Nancy Pelosi. The letter was later obtained
and published by ABC News. A true and correct copy of the letter as published by ABC News is
attached as Exhibit 9.
15.

On June 11, 2009, DOJ issued a press release announcing the resettlement of four

Uighur Guantanamo detainees in Bermuda. A true and correct copy of the press release is
attached as Exhibit 10.

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16.

On December 20, 2009, DOJ issued a press release announcing the transfer of 12

Guantanamo detainees to Afghanistan, Yemen, and Somaliland. A true and correct copy of the
press release is attached as Exhibit 11.
17.

On January 21, 2010, DOJ issued a press release announcing the transfer of two

Algerian detainees, Hasan Zemiri and Adil Hadi al Jazairi Bin Hamlili, to the custody of the
Algerian government. A true and correct copy of the press release is attached as Exhibit 12.
Public Statements of Matthew Olsen
18.

Matthew Olsen was the executive director of the Guantanamo Review Task Force

(the “Task Force”), which produced the Threat Assessments. In 2011 and 2012, he discussed the
Task Force’s work and the Threat Assessments in congressional testimony. Statements he made
during those two hearings are relevant to whether the Threat Assessments were expressly
adopted by the Obama Administration. They are also relevant to whether factual material
contained within the Threat Assessments was compiled with a particular policy goal or outcome
in mind.
19.

In 2011, President Obama nominated Olsen, who was then the general counsel of

the National Security Agency, to the directorship of the National Counterterrorism Center
(“NCTC”), a component of ODNI. On July 26, 2011, the Senate Select Committee on
Intelligence held a hearing on his nomination. A true and correct copy of the relevant pages of
the transcript of that hearing is attached as Exhibit 13.
20.

On January 31, 2012, the Senate Select Committee on Intelligence held its annual

Worldwide Threat Hearing. Olsen, by then the director of the NCTC, testified at that hearing. A
true and correct copy of the relevant pages of the transcript of that hearing is attached as Exhibit
14.

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Congressional Statements
21.

Several members of Congress have indicated in various public statements that

they understood the Obama Administration to be relying on the Threat Assessments to justify its
detainee policy.
22.

On May 7, 2010, several members of Congress sent a letter concerning the

Obama Administration’s Guantanamo detainee transfer policy to National Security Advisor Gen.
James Jones. The signatories published the letter. A true and correct copy of that letter and an
accompanying statement is attached as Exhibit 15.
23.

On June 4, 2014, Sen. Saxby Chambliss sent a letter to President Obama

concerning a swap of five Taliban Guantanamo detainees for an American hostage held by the
Taliban, Army Sergeant Bowe Bergdahl. Sen. Chambliss made the letter public. A true and
correct copy of the letter and an accompanying statement is attached as Exhibit 16.
24.

On June 10, 2014, Rep. Jackie Walorski, a member of the House Armed Services

Committee, sent a letter to President Obama concerning the Taliban-Bergdahl exchange. Six
other members of the House signed on to the letter. Rep. Walorski published the letter. A true
and correct copy of the letter and an accompanying statement from Rep. Walorski is attached as
Exhibit 17.
25.

On June 11, 2014, Rep. Tulsi Gabbard issued a statement about the Taliban-

Bergdahl exchange. A true and correct copy of that statement is attached as Exhibit 18.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: New York, NY
April 24, 2017
/s/ David E. McCraw

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6

 EXHIBIT 1

Department of State
Special Envoy for Guantanamo Closure Lee S. Wolosky
Opening Statement
House Foreign Affairs Committee
Hearing on Guantanamo Bay
23 March 2016

I.

Introduction

Chairman Royce, Ranking Member Engel, distinguished Members of the Committee: Good
morning. I appreciate you inviting me to appear before this Committee to discuss the important
matter of closing the detention facility at Guantanamo Bay, Cuba (GTMO). I am honored to be
joined today by my colleague, Paul Lewis, Special Envoy for Guantanamo Detention Closure at
the Department of Defense.
As Special Envoy for Guantanamo Closure at the Department of State, I am responsible for all
diplomatic issues related to the Administration’s policy of closing the detention facility,
including negotiating the security and humane treatment assurances for each transfer. My office
also plays a leading role in the interagency process to determine whether, when, and where a
detainee is transferred, and represents the Department in the periodic review process—known as
the Periodic Review Board—for certain detainees who are not currently approved for transfer.
In addition, we work closely with our Embassies around the world to follow up on the posttransfer status of former detainees.
Today, I will describe the rigorous processes that determine whether a detainee should be
approved for transfer and the extensive interagency efforts to comply with statutory requirements
before each transfer. Finally, I will attempt to clear up some common confusion surrounding socalled detainee reengagement.
II.

Closing the detention facility at Guantanamo Bay is a Bipartisan National Security
Imperative

Closing the detention facility at Guantanamo Bay is a national security imperative. President
Obama has emphasized this point repeatedly—at major addresses at West Point and the National
Defense University; in numerous State of the Union addresses; repeatedly in statements made
while signing National Defense Authorization Acts; at various press conferences; and, most
recently, in announcing the delivery of the Defense Department’s GTMO closure plan.
The President concluded that the continued operation of GTMO damages our national security
before he took office—and he did so for many of the same reasons that led President George W.
Bush to the same conclusion. According to President Bush, by his second term, “the detention
facility had become a propaganda tool for our enemies and a distraction for our allies.”1 It
remains so today.

1

GEORGE W. BUSH, DECISION POINTS 180 (2010).

 World leaders and organizations from the Pope to the Organization for American States
consistently call on the United States to close GTMO. Its continued operation is an irritant to our
moral leadership and to critical bilateral relationships. President Obama publicly lamented
recently that, “[w]hen I talk to other world leaders, they bring up the fact that Guantanamo is not
resolved.”2 He went on to note that, “[a]s President, I have spent countless hours dealing with
this . . . . Our closest allies have raised it with me continually. They often raise specific cases of
detainees repeatedly.”3 I am sure this information comes as no surprise to this Committee.
The bipartisan view that GTMO’s continued operation harms national security is not limited to
Presidents Obama and Bush. Their conclusion that GTMO must be closed is shared by no less
an expert in national security than Senator John McCain who has remarked that he is “in favor of
closing Guantanamo because of the image that Guantanamo has in the world, whether it’s
deserved or not,”4 as well as my boss and your former colleague, Secretary Kerry. Likewise
former Secretaries of State Clinton, Rice, Powell, Albright, Christopher, Baker, and Henry
Kissinger5 have all advocated for closing Guantanamo. Secretaries of Defense Carter, Panetta,
and Gates have similarly all advocated for closing the detention facility, as have three former
Chairmen of the Joint Chiefs of Staff, and 42 former Generals and Admirals.
III.

Current Population & Review Process

Today, there are 91 individuals detained at GTMO, down from a peak population of 680.
Altogether, a total of 779 detainees have passed through Guantanamo and, of those 688 have
departed. No detainees have been transferred to Guantanamo since 2008, and the vast majority
of detainees transferred out of GTMO to other countries—some 532—were transferred before
President Obama took office on January 20, 2009.
As you know, one of President Obama’s first acts was to order the closure of Guantanamo.
What is less well known is that the President also ordered the first ever comprehensive,
interagency review of all the 240 detainees then in custody at GTMO.
In 2009-2010, more than 60 career professionals, including intelligence analysts, law
enforcement agents, and attorneys, drawn from the Department of Justice, Department of
Defense, Department of State, Department of Homeland Security, the Office of the Director of
National Intelligence, the Central Intelligence Agency, the Federal Bureau of Investigation, and
other agencies within the U.S. government assembled all reasonably available information from
across the government relevant to determining the proper disposition of each detainee. The
review task force examined this information critically, giving careful consideration to the threat
posed by the detainee, the reliability of the underlying information, and the interests of national
security. Then, based on the review task force’s recommendations, the Departments of Defense,
2

President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23,
2016), available at https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prisonguantanamo-bay.
3
Id.
4
Jacqueline Klimas, Republicans Offer Obama Path to Close Guantanamo Before Leaving Office, WASH. TIMES,
May 14, 2015.
5
Shut Jail, Ex-Diplomats Say: Powell, Kissinger, Albright, Baker and Christopher, L.A. TIMES, Mar. 28, 2008, at
A15.

 State, Justice and Homeland Security; the Office of the Director of National Intelligence, and the
Joint Chiefs of Staff unanimously determined the appropriate disposition for each detainee:
transfer, referral for prosecution, or continued law-of-war detention.6
Pursuant to Executive Order 13567, detainees who were not approved for transfer in 2009-2010,
and who are not charged by military commission or serving a sentence, are subject to additional
review by the Periodic Review Board (PRB). The PRB’s mandate is to determine whether a
detainee’s continued detention is necessary to protect against a continuing significant threat to
the security of the United States. Like the earlier review task force, the PRB is composed of
senior representatives from the Department of Defense, the Joint Chiefs of Staff, the Department
of Justice, the Department of Homeland Security, the Office of the Director of National
Intelligence, and the Department of State. Detainees appearing before the PRB are assigned a
personal representative and have the opportunity to be represented by private counsel, at no
expense to the government. Detainees can provide an oral and written statement, submit
evidence, call witnesses, and elect to answer questions from Board members. Only when the
PRB arrives at a consensus determination that the continued detention of a detainee is no longer
necessary to protect against a continuing significant threat to U.S. security is a detainee approved
for transfer.
Detainees who are designated for continued detention by the PRB receive a file review every six
months and another full review and hearing every three years. The PRB will convene a full
review and hearing following a file review if there is a significant question raised in a file review
about whether continued detention remains warranted.
So far, the PRB has conducted hearings for 29 detainees, seven file reviews, and three
subsequent full reviews. Of the 29 reviews, 16 detainees were approved for transfer, 12 were
disapproved, and one review is still pending. Of those 12, seven have received file reviews, only
three of which have resulted in subsequent full reviews. Each of the subsequent reviews yielded
a decision to approve the detainee for transfer. This track record demonstrates that the PRB is
neither a rubberstamp for release nor one for continued detention.
Of the 91 detainees who remain at GTMO today, 36 are approved for transfer. Of these, 24 were
approved by the 2009-2010 review task force and 12 were subsequently approved for transfer
through the Periodic Review Board process.
Ten of the other 55 detainees are in some phase of the military commissions criminal justice
process—either awaiting a trial or appeal, or serving a sentence.
The remaining 45 are currently designated for continued detention but are eligible for review by
the PRBs.
IV.

How We Negotiate Transfers

We have made significant progress in transferring those detainees who are approved for transfer.
Since I took office in July 2015, we have transferred 25 detainees to 10 countries. The
6

GUANTANAMO REVIEW TASK FORCE, FINAL REPORT i-ii (2010).

 remaining 36 detainees who are currently approved for transfer can, and should, be transferred
from Guantanamo as soon as possible and in a manner that protects our national security and is
consistent with our long-standing policy on humane treatment.
The decision whether, when, and where to transfer a detainee is the culmination of a rigorous
interagency process similar to the initial decision to approve a detainee for transfer. The
Department of State leads negotiations with foreign governments about the possible transfer of
one or more Guantanamo detainees but we are joined in our efforts by colleagues from the
Departments of Defense, Justice, and Homeland Security, as well as those in the intelligence
community and on the Joint Staff. Often these negotiations occur in two steps: first, the U.S.
government seeks a high-level political commitment that the potential receiving country is
willing to resettle or repatriate the detainee or detainees and to impose various security measures
intended to substantially mitigate the threat the detainee or detainees may pose after their
transfer; second, we engage in working-level meetings with the entities responsible for
implementing these measures. While the higher level meetings offer the U.S. government the
opportunity to convey our expectations and assesses our potential partner’s political will, the
working-level meetings offer the opportunity, among other things, to share best practices from
previous detainee transfers, and tailor integration and security measures to specific circumstances
under consideration.
At the same time, U.S. agencies update the assessment of the potential transferee, drawing upon
all reasonably available information on a detainee in possession of the United States. It also
develops an assessment of the potential receiving country’s capabilities. During this process, we
provide our foreign partners with the IC’s updated assessment of the detainees under discussion
and offer them the opportunity to travel to Guantanamo to interview potential transferees.
Throughout all of this, we are working to ensure that we achieve a security framework that,
applied to specific individuals under consideration for transfer, satisfies or exceeds the statutory
requirements for transfers, including that the receiving government has taken or will take steps to
substantially mitigate the threat posed by those individuals.
Once we arrive at a satisfactory security framework, the Secretary of Defense seeks concurrence
in the transfer from the Secretaries of State, and Homeland Security, the Attorney General, the
Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff. Only after he
receives the views of those Principals—and only if he is satisfied that the requirements of the
National Defense Authorization Act are satisfied—does the Secretary of Defense sign and
transmit a certification to Congress conveying his intent to transfer GTMO detainees.
One challenge we face in our effort to close Guantanamo is the fact that many of the detainees
approved for transfer cannot be returned to their home country due to security or humane
treatment concerns. As my predecessor Special Envoy Cliff Sloan wrote in The New York
Times, these individuals may not be the worst of the worst, but rather the detainees at GTMO
with the worst luck. Of the 36 detainees currently approved for transfer, 29 are from Yemen.
Members of this Committee are aware of the dire security situation in that country. The
Administration has not transferred a GTMO detainee to Yemen since 2010, and our focus is on
resettling these individuals in third countries. Since January 1, 2015, we have resettled 29
Yemenis to five countries on three continents. It is a testament to our strong standing

 internationally that numerous countries have been willing to provide homes for those individuals
who cannot be returned to their own country and who should not remain at GTMO solely
because of their nationality. These countries should be commended for taking this important
humanitarian step, and for their contributions to the President’s goal of closing GTMO in a
secure and responsible manner.
V.

Reengagement

According to the most recent intelligence community report pursuant to Section 307 of the 2012
Intelligence Authorization Act, fewer than five percent of those detainees transferred by this
Administration—just seven (one of whom is dead) out of 144—are confirmed of engaging in
terrorist or insurgent activity following their release from GTMO.7 Although we would prefer
that no former detainees engage in terrorist or hostile activity following their release, the low rate
of reengagement for detainees released since January 20, 2009, is testament to the rigorous,
evidence-based, interagency approach this Administration has taken to both approving detainees
for transfer and to negotiating and vetting GTMO-detainee transfer frameworks.
VI.

Conclusion

Thank you again, ladies and gentlemen of the Committee. I greatly appreciate the opportunity to
speak to you about this important issue. I look forward to your questions.

7

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, SUMMARY OF THE REENGAGEMENT OF DETAINEES
FORMERLY HELD AT GUANTANAMO BAY, CUBA (March 2016).

 EXHIBIT 2

Department of State
Special Envoy for Guantanamo Closure Lee S. Wolosky
Opening Statement
House Foreign Affairs Committee
Hearing on Guantanamo Bay
July 7, 2016

Introduction
Chairman Royce, Ranking Member Engel, distinguished Members of the Committee: Good
morning. I appreciate you inviting me once again to appear before this Committee to discuss the
important matter of closing the U.S. detention facility at Guantanamo Bay, Cuba (GTMO). I
look forward to continuing our discussion in a closed session, either later today as we have
offered or as soon as practicable, so that we can have a fuller, classified discussion of some of
the topics we know are of interest to the Committee.
I.

Current Population & Review Process

I will begin with an overview of the current detainee population at Guantanamo and the process
by which decisions are made to approve a detainee for transfer or to continue law of war
detention. Today, there are 79 individuals detained at Guantanamo. No detainees have been
transferred to Guantanamo since 2008. Altogether, a total of 779 detainees have passed through
Guantanamo and, of those 700 have departed. The vast majority of detainees transferred out of
Guantanamo to other countries—some 532—were transferred by President George W. Bush,
prior to the commencement of President Obama’s administration on January 20, 2009. Under
President Obama, a total of 159 detainees have been transferred from Guantanamo.
President Bush acted to whittle the detainee population because he understood that “the detention
facility had become a propaganda tool for our enemies and a distraction for our allies.” 1
President Obama has continued detainee transfers and, as you know, signed an executive order to
close Guantanamo as one of his first official acts as President.2 Soon after taking office,
President Obama also ordered the first ever comprehensive, interagency review of all the 242
detainees then in custody at Guantanamo.3
In 2009-2010, the Guantanamo Review Task Force (sometimes also called the Executive Order
Task Force, or “EOTF”), which was composed of more than 60 national security professionals,
including intelligence analysts, law enforcement officials, and attorneys, drawn from the
Department of Justice, Department of Defense, Department of State, Department of Homeland
Security, the Office of the Director of National Intelligence, the Central Intelligence Agency, the
Federal Bureau of Investigation, and other agencies within the U.S. government, assembled all
reasonably available information from across the government relevant to determining an
appropriate disposition of each detainee. The review task force examined this information
1

GEORGE W. BUSH, DECISION POINTS 180 (2010).
E.O. 13492, January 22, 2009.
3
E.O. 13493, January 22, 2009.
2

 critically, giving careful consideration to the threat posed by the detainee, the reliability of the
underlying information, and the interests of national security. Then, based on the review task
force’s recommendations, the Departments of Defense, State, Justice and Homeland Security, the
Office of the Director of National Intelligence, and the Joint Chiefs of Staff unanimously
determined the appropriate disposition for each detainee: transfer, referral for prosecution, or
continued law-of-war detention.4
Pursuant to Executive Order 13567, promulgated on March 7, 2011, detainees who were not
approved for transfer in 2009-2010, and who have not been charged by military commission or
are not serving a sentence, are subject to additional review by the Periodic Review Board (PRB).
The PRB’s mandate is to determine whether a detainee’s continued detention is necessary to
protect against a continuing significant threat to the security of the United States. The PRB is
composed of senior representatives from the Department of Defense, the Joint Chiefs of Staff,
the Department of Justice, the Department of Homeland Security, the Office of the Director of
National Intelligence, and the Department of State. Importantly, none of the PRB representatives
are political appointees. Detainees appearing before the PRB are assigned a personal
representative and have the opportunity to be represented by private counsel, at no expense to the
government. Detainees can provide an oral and written statement, submit evidence, call
witnesses, and elect to answer questions from Board members.
Pursuant to the EO, detainees who are designated for continued detention by the PRB receive a
file review every six months and another full review and hearing every three years. If the PRB
determines that there is a significant question regarding whether the detainee’s continued
detention is warranted in a biannual file review, the Board convenes a full review.
So far, the PRB has conducted initial hearings for 53 detainees, nine file reviews, and four
subsequent full reviews. Of the 53 initial PRB hearings, 20 detainees were approved for transfer,
16 were determined to meet the standard for continued detention, and the results of 15 hearings
are still pending. Of those 16 who were determined to meet the standard for continued detention,
nine file reviews have been held, and five have resulted in subsequent full reviews, of which four
have been conducted. Each of the four subsequent full reviews yielded a decision to approve the
detainee for transfer. One full review is pending. This track record demonstrates that the PRB is
neither a rubberstamp for release nor one for continued detention, and reflects the objective
evaluation of the facts and circumstances attendant to each individual case.
Of the 79 detainees who remain at GTMO today, 29 are approved for transfer. Of these, 15 were
approved by the 2009-2010 review task force and 14 were approved for transfer through the
Periodic Review Board process.
Ten detainees are in some phase of the military commissions criminal justice process—either
awaiting a trial or appeal, or serving a sentence.
The remaining 30 are currently designated for continued detention but will continue to be subject
to by the PRBs.
4

GUANTANAMO REVIEW TASK FORCE, FINAL REPORT i-ii (2010).

 II.

Role of the Special Envoy for Guantanamo Closure

My responsibilities as Special Envoy for Guantanamo Closure at the Department of State include
all diplomatic issues related to the detention facility, including the negotiation of each transfer
from the facility. We work closely in this regard, and in following up on transfers from the
detention facility, with our Embassies around the world.
The process for transferring Guantanamo detainees is thorough and rigorous. From the very
beginning of this Administration we have and continue to implement stringent processes and
procedures to determine whether a detainee should be approved for transfer that include multiple
layers of review by career national security professionals. I will summarize how decisions are
made on whether a detainee should be transferred or remain in detention, as well as the extensive
interagency efforts undertaken to achieve a security framework that is suitable for the specific
detainee and compliant with statutory requirements before each transfer. Finally, I hope to dispel
any misconceptions regarding the Administration’s track-record to date in regard to detainee
reengagement.
III.

How We Negotiate Transfers

Working with the other departments and agencies involved in Guantanamo transfers, we have
continued to negotiate appropriate security and humane treatment assurances for those detainees
who are approved for transfer. Since I took office one year ago yesterday, we have transferred
37 detainees to 11 countries. We expect to make substantial progress in transferring many of the
remaining approved-for-transfer detainees by the end of the summer, in a manner that protects
our national security and is consistent with our long-standing policy on humane treatment.
Decisions regarding whether, when, and where to transfer a detainee are the culmination of a
rigorous interagency process. The Department of State leads diplomatic negotiations with
foreign governments regarding the transfer of Guantanamo detainees, but we are typically joined
in our efforts by senior career officials from the Departments of Defense, Justice, and Homeland
Security, as well as those in the Intelligence Community and on the Joint Staff. Generally,
transfer negotiations occur in two steps. First, the U.S. government obtains a political
commitment that the potential receiving country is willing in principle to resettle or repatriate a
detainee or detainees, and to impose various security measures that will substantially mitigate the
threat the detainee or detainees may pose after their transfer. In the second step, we engage in
technical discussions with the foreign officials responsible for implementing these measures.
The higher-level meetings provide us the opportunity to convey our expectations to the potential
host nation and to assess our potential partner’s political will. The technical discussions offer the
opportunity to tailor integration and security measures to specific circumstances under
consideration, to share best practices from previous detainee transfers and, perhaps most
importantly, to determine, based on an individualized assessment of these specific circumstances,
whether the statutory standard in the National Defense Authorization Act governing the foreign
transfer of Guantanamo detainees can be met.
Simultaneously, U.S. agencies update the assessment of the potential transferee, drawing upon
all reasonably available information on a detainee in possession of the United States. We also
provide our foreign partners with updated assessment of the detainees under consideration and

 offer them the opportunity to travel to Guantanamo to interview potential transferees.
Throughout the process, we work to ensure that we achieve a security framework that is suitable
for the specific detainee(s) under consideration for transfer and satisfies or exceeds the statutory
requirements for transfers, including that the receiving government has taken or will take steps to
substantially mitigate the threat these specific individuals may pose after being transferred.
Once we conclude our diplomatic negotiations that will result in a security framework that we
assess will substantially mitigate the threat that a detainee may pose after transfer, the Secretary
of Defense consults with the Secretaries of State, and Homeland Security, the Attorney General,
the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff on the
transfer. Only after the Secretary of Defense receives the views of those Principals—and only if
he is satisfied that the requirements of the National Defense Authorization Act are satisfied—
does the Secretary of Defense sign and transmit a certification to Congress conveying his intent
to transfer detainees.
IV.

Challenges

Many of the detainees approved for transfer cannot be returned to their home country due to
security or humane treatment concerns. Consequently, it is necessary to resettle detainees in
countries of which they are not nationals. Executing such resettlements requires intense
diplomacy and careful attention to security and integration measures. Of the 29 detainees
currently approved for transfer, 22 are from Yemen. Members of this Committee are aware of
the security situation in that country. The Administration has not transferred a Guantanamo
detainee to Yemen since 2010, and our focus is on resettling Yemeni nationals in third countries.
These individuals should not remain in Guantanamo solely because of their nationality, if the
U.S. government has otherwise concluded that they can and should be transferred subject to
appropriate security and humane treatment assurances. Since January 1, 2015, we have resettled
39 Yemenis to six countries on three continents. It is a testament to our strong standing
internationally that numerous countries have been willing to provide homes for those individuals
who cannot be returned to their own country and who should not remain in detention solely
because of the country of their birth.
V.

Reengagement

According to the most recent unclassified intelligence community report pursuant to Section 307
of the 2012 Intelligence Authorization Act, less than 5 percent of those detainees transferred by
this Administration—seven (one of whom is dead) out of 144—are confirmed of engaging in
terrorist or insurgent activity following their release from Guantanamo.5 8.3 percent—that is 12,
including one who is dead, of 144—are suspected of engaging in terrorist or insurgent activity
following their release from Guantanamo. Although we would prefer that no former detainees
engage in such activity following their release, the low rate of reengagement for detainees
released since January 20, 2009, is testament to the rigorous, interagency approach the
Administration has taken to both approving detainees for transfer and to negotiating and vetting
detainee transfer frameworks.

5

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, SUMMARY OF THE REENGAGEMENT OF DETAINEES
FORMERLY HELD AT GUANTANAMO BAY, CUBA (March 2016).

 VI.

Closing the Detention Facility at Guantanamo Bay is a Bipartisan National
Security Imperative

Lastly, closing the detention facility at Guantanamo Bay is a national security imperative, and
should not be portrayed as partisan issue.
Even before President Obama took office, President Bush concluded that continued operation of
Guantanamo damages our national security. He transferred over 500 detainees out of
Guantanamo during his two terms in office. President Obama reached the same conclusion for
many of the same reasons that led President Bush to begin emptying Guantanamo of detainees.
The continued operation of this facility has significantly impacted our credibility in the
international community, and world leaders and organizations—from the Pope to the
Organization for American States, consistently call on the United States to close GTMO. Its
continued operation undermines our moral leadership and is an irritant to critical bilateral
relationships. President Obama recently stated that, “[w]hen I talk to other world leaders, they
bring up the fact that Guantanamo is not resolved.”6 He went on to note that, “[a]s President, I
have spent countless hours dealing with this . . . . Our closest allies have raised it with me
continually. They often raise specific cases of detainees repeatedly.”7 I am sure this information
comes as no surprise to this Committee.
The bipartisan view that Guantanamo harms national security is not limited to Presidents Obama
and Bush. Their conclusion that Guantanamo should be closed is shared by Senator John
McCain, who has remarked that he is “in favor of closing Guantanamo because of the image that
Guantanamo has in the world, whether it’s deserved or not,”8 as well as by Secretary Kerry.
Likewise former Secretaries of State Clinton, Rice, Powell, Albright, Christopher, Baker, and
Henry Kissinger9 have all advocated for closing Guantanamo. Secretaries of Defense Carter,
Panetta, and Gates have similarly all advocated for closing the detention facility, as have three
former Chairmen of the Joint Chiefs of Staff, and 42 retired Generals and Admirals.
VII.

Conclusion

Thank you again, ladies and gentlemen of the Committee. I greatly appreciate the opportunity to
speak to you about this important issue. I look forward to your questions, and to a more detailed
discussion in closed session.

6

President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23,
2016), available at https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prisonguantanamo-bay.
7
Id.
8
Jacqueline Klimas, Republicans Offer Obama Path to Close Guantanamo Before Leaving Office, WASH. TIMES,
May 14, 2015.
9
Shut Jail, Ex-Diplomats Say: Powell, Kissinger, Albright, Baker and Christopher, L.A. TIMES, Mar. 28, 2008, at
A15.

 EXHIBIT 3

i

[H.A.S.C. No. 114–8]

UPDATE ON DETAINEE TRANSFERS
FROM GUANTANAMO

HEARING
BEFORE THE

SUBCOMMITTEE ON OVERSIGHT
AND INVESTIGATIONS
OF THE

COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION

HEARING HELD
FEBRUARY 12, 2015

U.S. GOVERNMENT PUBLISHING OFFICE
94–095

WASHINGTON

:

2015

For sale by the Superintendent of Documents, U.S. Government Publishing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800
Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

 SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
VICKY HARTZLER, Missouri, Chairwoman
JEFF MILLER, Florida
JACKIE SPEIER, California
K. MICHAEL CONAWAY, Texas
JIM COOPER, Tennessee
JOSEPH J. HECK, Nevada
HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia
GWEN GRAHAM, Florida
AUSTIN SCOTT, Georgia
MARTHA MCSALLY, Arizona
CHRISTOPHER BRIGHT, Professional Staff Member
MICHAEL AMATO, Professional Staff Member
ABIGAIL GAGE, Clerk

(II)

 CONTENTS
Page

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hartzler, Hon. Vicky, a Representative from Missouri, Chairwoman, Subcommittee on Oversight and Investigations ......................................................
Smith, Hon. Adam, a Representative from Washington, Ranking Member,
Committee on Armed Services ............................................................................
Speier, Hon. Jackie, a Representative from California, Ranking Member, Subcommittee on Oversight and Investigations ......................................................
Thornberry, Hon. William M. ‘‘Mac,’’ a Representative from Texas, Chairman,
Committee on Armed Services ............................................................................

1
6
4
5

WITNESSES
Lewis, Paul M., Special Envoy for Guantanamo Detention Closure, U.S. Department of Defense .............................................................................................
Trumbull, Charles, Acting Special Envoy for Guantanamo Closure, U.S. Department of State .................................................................................................

8
11

APPENDIX
PREPARED STATEMENTS:
Lewis, Paul M. ..................................................................................................
Trumbull, Charles ............................................................................................
DOCUMENTS SUBMITTED FOR THE RECORD:
Letter from 42 retired U.S. military officers advocating closure of the
Guantanamo Bay detention facility .............................................................
WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING:
[There were no Questions submitted during the hearing.]
QUESTIONS SUBMITTED BY MEMBERS POST HEARING:
[There were no Questions submitted post hearing.]

(III)

19
33

41

 UPDATE ON DETAINEE TRANSFERS FROM
GUANTANAMO

HOUSE OF REPRESENTATIVES,
COMMITTEE ON ARMED SERVICES,
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,
Washington, DC, Thursday, February 12, 2015.
The subcommittee met, pursuant to call, at 3:05 p.m., in Room
2212, Rayburn House Office Building, Hon. Vicky Hartzler (chairwoman of the subcommittee) presiding.
OPENING STATEMENT OF HON. VICKY HARTZLER, A REPRESENTATIVE FROM MISSOURI, CHAIRWOMAN, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

Mrs. HARTZLER. Welcome. I am delighted to gavel in this first
hearing and briefing of the Oversight and Investigations Subcommittee. Today’s event is entitled ‘‘Update on Detainee Transfers
from Guantanamo.’’
Before we proceed with the hearing, I would like to emphasize
how honored I am to serve as Oversight and Investigations Subcommittee chairwoman in this Congress.
This subcommittee undertakes important work for the Committee on Armed Services. It strives to ensure that the policies and
programs of the Department of Defense [DOD] are properly formulated and implemented in the most efficient manner. Previous Congresses have recognized the critical role of standalone oversight
and investigations. In fact, it is essential I recognize a former
HASC [House Armed Services Committee] chairman and my predecessor, the late Ike Skelton, who insisted on establishing this subcommittee when he became chairman of the Armed Services Committee during the 110th Congress.
I am also pleased to acknowledge that Chairman Joe Heck, who
preceded me in this position last year, returns to the subcommittee
as a sitting member; and I look forward to his continued involvement and insights.
And I also look forward to working with Ranking Member Speier
as well as Chairman Thornberry, Ranking Member Smith, and all
members of the subcommittee in the 114th Congress.
So before continuing with my opening remarks for the hearing,
I would like to recognize my colleague and ranking member of the
subcommittee, Ms. Jackie Speier, for any welcoming remarks that
she may wish to offer.
Ms. SPEIER. Thank you, Madam Chairwoman.
And I too am privileged to serve with you as ranking member of
this committee. I really think that there is no higher calling for all
of us as Members of Congress than to do rigorous investigations
(1)

 NOT FOR DISTRIBUTION UNTIL RELEASED BY
THE HOUSE COMMITTEE ON ARMED SERVICES

STATEMENT 0?
PAUL M. LEWIS

SPECIAL ENVOY FOR GUANTANAMO DETENTION CLOSURE
US. DEPARTMENT OF DEFENSE

BEFORE THE HOUSE COMMITTEE ON ARMED SERVICES
OVERSIGHT AND INVESTIGATIONS 
FEBRUARY l2. 2015

NOT FOR DISTRIBUTION UNTIL RELEASED BY
THE HOUSE COMMITTEE ON ARMED SERVICES

(19)

20

Madam Chairwoman. Ranking Member Speier, distinguished members ofthc
subcommittee and committee, and former colleagues on your dedicated staff, thank you
for the opportunity testify today' on past and prospective transfers from the detention
center at Guantanamo Bay, Cuba.

1 am pleased to be joined by my colleague at the Department of State, Charlie
Trumbull, the Acting Special Envoy for Guantanamo Detention Closure and by Patrick
Prior, of the Defense Intelligence Agency.

I understand the members of the subcommittee are participating in an oversight
visit to the detention facility later this month and I hope to join you on that visit. When
'you'vis?it Guantanamo Bay you will see dedicated and professional servicemembers who
perform superbly under dif?cult and challenging conditions
Overview

On January 22, 2009, President Oboma signed Executive Order 13492, which
ordered the closurc'of the detention facilities at the Guantanamo Ba],r Naval Bas: in
Cuba. Pursuant to that order, a special task force (the task force") was
established to comprehensively review information in the possession of the 11.8.
government about the detainees, and to assess appropriate disposition options. Through
that rigorous interagency effort, the review participants decided on a dispositiooutransfer,
prosecution, or continued detention--for all 240 detainees subject to the review.

Since then, pursuant to Executive Order 1356?, signed on March ?it, 201 l, and
with section 1023 of the NDAA for FY 2012, 3 Periodic Review Board (PRB)

has begun to review the status ofthoso detaineES not currently eligible for transfer, and

21

against whom there are no charges pending and no judgment of conviction has been
entered.

There are 122 detainees remaining at the Guantanamo detention facility. Of
these, 54 are eligible for transfer, 10 are being prosecuted or have been sentenced, and 58
are in the process of being reviewed by the PRB.

Secretary of Defense Hegel has approved the transfer of 44 detainees?41 of
whom were transferred in 2013, 28 of whom were transferred last year, and 5 of whom
have been transferred this year. The great majority ofthesc transfers occurred in
accordance with the authorities in section 1035 of the FY14 NDAA. I urge you to
maintain these authorities and refrain from placing any additional statutory restrictions on
our ability to transfer GTMO detainees in accordance with our national security
priorities.

Closure Is a National Security Imperative

Madam Chairman and members of the subcommittee, at the outset I want to make
one fundamental point regarding the detention facility at Guantanamo Bay. The
President has determined that closing this detention facility is a national security
imperative. The President and his natioaal security team all believe that the continued
operation of the detention facility at Guantanamo weakens our national security by
draining resources, damaging our relationships with key allies, and emboldening vioient
extremists. it is no coincidence that ISIL videos displaying barbaric and savage
executions of American hostages and more recently of a Jordanian pilot and a Japanese

hostage, each showed the victim clothed in an orangejumpsuit, believed by many to be

22

the symbol of the United States Govemrnent?s operation of the Guantanamo detention
facility. [311. exploits Guantanamo to enhance its propaganda.

42 retired military leaders, all retired general of?cers or flag of?cers, wrote the
chairman and ranking member of the Senate Armed Services Committee on January 29,
2015 and stated, is hard to overstate how damaging the continued existence of the
detention facility at Guantanamo has been and continues to be. it is a critical national
security issue." The letter continued, ?{M]any of us have been told on repeated occasions
by our friends in countries around the world that the greatest single action the United
States can take to fight terrorism is to close Guantanamo.?

This letter was signed by General Charles C. Krulak, a retired Commandant of the
Marine Corps, Major General Michael R. Lehnert, the ?rst commanding genera] of the
joint detention task force at Guantanamo General Joseph Hear, the
former head of CENTCOM, General David M. Maddox, the former head of the 
Army in ?urope, and thirty-six other retired senior military leaders.

Many other senior military leaders acknowledge the need to close this detention
facility. Admiral Michael Mullen and General Martin Dempsey, the former and current
chairman of the Joint Chiefs of Staff, support Guantanamo closure. In 2010, General
David Petraeus, then the commander of CENTCOM stated, ?I've been on the record on
that for well over a year as well, saying that it [Guantanamo] should be closed. . . . And 1
think that whenever we have, perhaps, taken expedient measures, they have turned
around and bitten us in the backside. . . . Alan Ghraib and other situations like that are
nonbiodegradahles. They don't go away. The enemy,r continues to beat you with them like

a stick.?

23

Senior ?gures across the political Spectrum have made clear that Guantanamo
poses profound risks to our national security and should he closed. Former Secretaries of
Defense Robert Gates and Leon Panetta, and the current Secretary of Defense, Chuck
Hegel, all support Guantanamo closure.

President George W. Bush?s chief counter-tennrism adviser, Kenneth Wainstein.
also concluded maintaining the detention facility at Guantanamo was not sustainable.

Finally, President George W. Bush himself concluded that the Guantanamo
detention was ?a propaganda tool for our enemies and a distraction for our allies.?

I will now address the speci?c issues addressed by the subcommittee?s letter of
invitation.

Recent Transfer Decisions

28 detainees were transferred in 2014. 5 have been transferred this year. These
detainees were transferred to 11 different countries. These recent transfers included
repatriations to Algeria, Kuwait, Saudi Arabia, and Afghanistan. The recent transfers
also included to Qatar, Slovakia, Georgia, Uruguay, Kazakhstan, Estonia,
and Oman. I look forward to discussing the details of each of these transfers and potentiai
additional transfers, in the closed brie?ng.

Overall, 22 nations have taken detainees from GTMO who are not from that
country. This broad support in the international community is also demonstrated by the
numerous international organizations calling for closure, including the Organization for
American States and recently, the Vatican. As with our military leaders, foreign leaders
regularly cite the Guantanamo detention center as an obstacle to counterterrorism efforts.

Cliff Sloan, my former colleague as the Department of State Speciat Envoy ??equently

24

recalled strong language from our allies similar to the letter from the retired military
leaders. Sloan stated as an example, a high-ranking security of?cial from one of
our staunchest allies on countenerrorism (not from Europe) once told me, ?The greatest
single action the United States can take to fight terrorism is to close Guantanamo.?
Transfer Process

The current process that leads to a transfer decision builds upon the work of the
review task force. It is careful and deliberative. Key features of the transfer process
include a comprehensive interagency review and rigorous examination of updated
informatioa regarding the detainee, the security situation in the potential host country,
and the willingness and capability of the potential host country to implement and
maintain appropriate complianco with security measures. ThoSe initiai revieWs are
conducted by career professionals, including intelligence law enforcement
agents, and attorneys, drawn from the Department of Justice, Department of Defense,
Department of State, Department of Homeland Seourity, Office of the. Director of
National Intelligence, and other agencies within the intelligence and national security
community.

Next, any transfer decision requires an assessment by the Special Envoy's for
Guantanamo Detention Closure at both the Department of State and Defense oi'the
senurity situation in the receiving country, and of the wiilingneas and capability of the
country to comply with security assurances requested by the United States. The Special
Envoys negotiate speci?c security assurances addressing the unique circumstances of

each detainee transfer.

25

Additionally, each decisiori to transfer has been approved by the unanimous
agreement of six Principals the Secretary of State, the Secretary of Homeland Security,
the Director of National intelligence, the Attorney General, the Chairman of the Joint
Chiefs, and ?nally, the Secretary of Defense.

Finally, the Secretary of Defense must determine if the proposed transfer meets
the requirements set forth by Congress in the NDAA each year. Under Section IDES of
the ?scal 2m4 NDAA, the Secretary may approve the transfer ifhe determines that the
transfer is in the national security interests of the United States and that actions have been
or are planned to be taken that will substantially mitigate the risk of the detainee
engaging in terrorist or other hostile activity that threatens the United States or US.
persons or interests. The factors considered in making this determination include:

0 The security situation in the foreign country to which the detainee is to be
transferred;

Con?rmed past activities by individuals transferred to the foreign country to
which the detainee is to be transferred;

0 Actions taken by the U.S. or the foreign country to reduce the risk the individual
will engage in terrorist or hostile activity;

I Security assurances provided by the foreign govemment; and

I An assessment of the Willingness and capabilities of the foreign government to
meet those security assurances,

Security Assurance!

I caimot discuss the Specific security assurances we receive ?'om foreign
govemments with any degree of speci?city in Open testimony. However, among the
types of security measures put in place are travel restrictions, monitoring, information

sharing, and reintegrationfrehabilitation programs.

26

The decision to transfer is made only a?er detailed, speci?c conversations with
the receiving country about the potential threat a detainee may pose after transfer and the
agreement about the measures the receiving country will take in order to suf?ciently
mitigate that potential threat. As noted, we also review the capability of the receiving
country and its securityr establishment, and its track record in adhering to prior
agreements in this regard.

Monitoring ofCamptered Transfers

Once a detainee is transferred from Guantanamo, the community and
others in the government continuously monitor for indications ot?reengagement and work
closely with liaison partners to ensure the fullest understanding of a former detainee-?5
activities. Through this follow-up process, the United States engages our partner nations
closely and may request additionai measures. Through a rigorous IC coordination
prooess, including the Department of Defense and State, that draws on the assessments of
several 18 elements, ODNI determines whether to designate a former detainee as
suspected of reengaging or continued to have recngaged.

Guarding Against Rearrgagem an:

A key focus of the review process described above is on mitigating the risk a
detainee could ?return to the ?ght? or otherwise reengage in acts that threaten the United
States or US. persons. We take the possibilin of reengagement veryr seriously. Secretary
Hegel has testi?ed forcefutiy before the ?ril Committee on this.

The most rocent public data on reengagernent of former Guantanamo detainees

Was released in September 20% and is current as ofJuly 15. 2014. Thereis a lag in the

27

public reporting and I know you may have seen a more recent classi?ed report on this
matter. We can address updated classi?ed statistics in a closed setting.

The ODNI categorizes the ?gures in three ways: 1) Total, 2) Pie-22 January 2009,
which refers to former detainees who departed Guantanamo prior to January 22, 2009,
and 3} Post-22 January, 2009, which refers to former detainees who departed Guantanamo
after January 22, 2009, as follows:

II Total: 17.3% con?rmed of reengaging (10? of 620): 12.4% suspected of
reengaging of620), for a total of 29.7% continued or suspected of
recngagement.

I Pro-22 January 2009: 19% con?rmed of reengaging (101 of 532); 143%
suspected of reengaging [1'6 of 532}, for a total of 33.3% confirmed or suspected
of reengagement.

II Post?22 2009: 6.8% continued ofreengaging {6 of 88); 1.1% suspected
of recngaging (1 of 38) for a total of 19% confirmed or suspected of
reengagement.

in other words, the rate of reengagement has been much lower for those transferred since
2009.

Of the detainees transferred under this Administration, over 90% are neither
continued nor suspected of having mortgaged. This statistic speaks to the result of the
careful scrutiny given to each transfer in the intensive interagenc},r review process. and
the negotiation of agreements regarding security measures the receiving government
intends to take pursuant to its own domestic laws and independent determinations that
will mitigate the threat that the detainees wiil not pose a continuing threat to the United
States and its allies after they have been transferred.

Even as the overwhelming majorityr of detainees this Administration has

transferred are not suspected of reengaging, we nevertheless take any indications of

28

suspected or con?rmed reengagernent very seriously, and we work in close coordination
with our partners to mitigate reengagement and to take follow-on action when necessary.
This is demonstrated by an additional point about the reengagernent data: of the 10?
con?rmed of reenga?ging (the vast majority of them transferred prior to 2009), 48 are
either dead or in custody. Detainees transferred from Guantanamo by no means receive a
free pass to reengage, their activities continue to be closely watched, and we are
committed to using all lawful tools if necessary to mitigate the threat such detainees may
pose if they do reengage.
Proposed Legislation

The recent legislation preposed by Representative Waiorslti and cosponsored by
Representative Austin Scott of the subcommittee would effectively ban most transfers
from Guantanamo for two years. It reverts to the previous certification regime under the
NDAA for FY 2?12 and the NDAA For 2013. which resulted only in court-ordered
transfers, transfers pursuant to pleas agreements and only a few transfers by the
certi?cationfnational security waiver process. in addition, it adds a proposal to limit
transfers based on JTF-GTMO threat assessments. These assessments are outdated and
are limited products derived from a threat-analysis model that was never intended for the
purposes for which this legislation now seeks to use it. Determinations of ?threat level"
made by JTF-GTMO. were based on the battle?eld or detention situation at the time.
These assesarnents included linkages that may no longer be relevant, capabilities that may
no longer exist, and reporting that has since been determined to be unreliable. Using
these past and often incomplete determinations would not provide an accurate analysis.

Moreover, reliance solely on an assessment of the threat posed by a detainee fails to

10

29

account for the terms of the transfer and the capabilities of the country to which the
detainee would be sont, both of which can have a signi?cant impact on the likelihood of a
detainee reengaging in terrorist activities.

The determinations made by the zoos Guantanamo Review Task Force process
(the EOTF process cited above), an exhaustive interagency effort that fully examined the
impact of transferring individuals ?-om Guantanamo Bay, should be used as the
foundational analysis when determining a detainee?s current threat. This EDTF process
took account of the assessments in the course of a more comprehensive
review of LLB. intelligence and other infonnation with respect to each detainee. The
EOTF determinations, in conjunction with regularly updated information from the
intelligence community, provide the most accurate assessment of a speci?c detainee?s
current threat level.

We believe that any decisions regarding traitsfers should be based on all current
information and of detainees.

Because this legislation, if enacted, would effectively block progress toward the
goal of closing the Guantanamo Bay detention facility, the Administration opposes it.
Yemen

The proposed legislation bars transfer of any detainees to Yemen for two years.
75 Yemenis remain at Guantanamo Bay: 47 are eligible for transfer, 25 are eligible for
PRB review, 2 have charges referred and is sewing pro-sentence con?nement.

A ban on transfers to Yemen is unnecessary because we are not, at the present
time, seeking to transfer any of them to Yemen, especially in light of the recent further

deterioration in the securit}.r situation. Since the President?s moratorium on detainee

11

30

transfers to Yemen was lifted neat-t3.r two years ago in favor of a case-by?case analysis,
not a single detainee has been transferred to Yemen. The 12 Yemenis who have been
transferred recently were transferred to ?ve countries: Slovakia, Georgia, Kazakhstan,
Estonia and Oman. We are currently?neg?otiating with other countries to take additional
Yemenis.

Plan to Close Guantanamo Detention Facility

Our plan has three main elements.

First, we will continue the process of respOnsibly transferring the 54 detainees
eligible for transfer.

Second, we will continue the prosecution of detainees in the militaryr commissions
process, and ifpossibie, in the federal courts. Currently 7 detainees are being actively
prosecuted under the military commission process; 5 secused of the 9&1 attacks, 1
charged with the bombing of the USS Cole, and] charged with actions as a senior al
Qaeda commander; and 3 are in the Sentencing phase or are serving sentences.

Third, we will continue and expedite the PRB process.

When we have concluded these three lines of effort, it is likely that a limited
number of detainees who Cannot be prosecuted but who are too dangerous to transfer,
even with security assurances, will remain in our custody.

Ultimately,.closing the detention center at Guantanamo Bay will require us to
consider additional options, including the possibility of transferring some detainees to a
secure facility in the United States. The Department of Justice, in consultation with the
Secretary of Defense, submitted a report to Congress that concluded that in the event

detainees were relocated to the United States, existing statutory safeguards and execative

12

31

and congressional authorities provide robust protection of national security. We
understand that transfers to the United States are currently barred by statute. As a result,
the Government is prohibited from prosecuting any detainees in the United States, even if
it represents the best or only - option for bringing a detainee to justice. The President
has consistently opposed these restrictions, which curtail options for reducing the
detainee population. We understand the subcommittee has a continuing request for more
information. We understand we need to work with Congress on this and i pledge to you
we will do so.
Conclusion

President Bush worked towards closing Guantanamo, and many of?cials in his
Administration worked hard towards that objective. We are closer to this goal than many
people may realize. 0f the nearly 800 detainees to have been held at Guantanarno since
the facility opened in 2302, the vast majority have already been transferred, including
more than Still detainees transferred by the previous Administration. The President and
the national security experts of this Administration believe it should be closed. The senior
leaders of the country and the leaders of the Department of Defense concur. In
my time as Special Envoy, have seen ?rsthand the extent to which the detention 
is a source of ongoing friction with our allies and partners and continues to undennine
our standing in the world. As indicated in the letter by the retired military leaders, many
believe closure of this facility is the single most important counterterrorism effort the
United States can undertake. We believe the issue is not whether to close the
Guantanamo Bay detention facility; the issue is how to do it.

Thank you and [look forward to your questions in the closed brie?ng.

13

32

Paul M. Lewis

Paul M. Lewis is the Department ot?De Fense Special Envoy for closing the detention facility at
Guantanamo Bay. Cuba. Special Envoy Lewis was appointed to this position by Secretary of
Defense Hegel in October 20]3.Prior to this appointment, he served as General Counsel and
Minority General Counsel for the Hons: Armed Services Committee.

Special Envoy Lewis also served as the Director, Office of Legislative Counsel (OLC), O?ice of
General Counsel, Department of Defense, from 2003-2010. Previously, was also the counsel to
the Chairman ofthe House Ethics Committee.

Special Envoy Lewis received his undergraduate degree in History from the University ofNotre
Dame in 1980. Alter his graduation from Notre Dame Law School in 1983, he served as ajudge
advocate in the United States Marine Corps, an Assistant District Attorney in the Manhattan
of?ce and as a trial attorney in the Organized Crime and Raelceteering Section of the
Department of Justice. He is admitted to the bars of New York, New Jersey and other federal
jurisdictions.

Special Envoy Lewis is an adjunct professor at Georgetown University, where he currently teaches
?Introduction to Ethics? and ?Ethical Issues in American Politics". He also regularly lectures on
ethics and congressional investigations at Georgetown Law School and George Washington
University Law School.

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 EXHIBIT 5

4/20/2017

Guantánamo Files: U.S. Government Statement ­ The New York Times

WORLD

A Statement by the United States
Government
APRIL 24, 2011

“It is unfortunate that The New York Times and other news organizations have made
the decision to publish numerous documents obtained illegally by Wikileaks
concerning the Guantanamo detention facility. These documents contain classified
information about current and former GTMO detainees, and we strongly condemn
the leaking of this sensitive information.
“The Wikileaks releases include Detainee Assessment Briefs (DABs) written by
the Department of Defense between 2002 and early 2009. These DABs were written
based on a range of information available then.
“The Guantanamo Review Task Force, established in January 2009, considered
the DABs during its review of detainee information. In some cases, the Task Force
came to the same conclusions as the DABs. In other instances the Review Task Force
came to different conclusions, based on updated or other available information. The
assessments of the Guantanamo Review Task Force have not been compromised to
Wikileaks. Thus, any given DAB illegally obtained and released by Wikileaks may or
may not represent the current view of a given detainee.
“Both the previous and the current Administrations have made every effort to
act with the utmost care and diligence in transferring detainees from Guantanamo.

http://www.nytimes.com/2011/04/25/world/guantanamo­files­us­government­statement.html

1/2

 4/20/2017

Guantánamo Files: U.S. Government Statement ­ The New York Times

The previous Administration transferred 537 detainees; to date, the current
Administration has transferred 67. Both Administrations have made the protection
of American citizens the top priority and we are concerned that the disclosure of
these documents could be damaging to those efforts. That said, we will continue to
work with allies and partners around the world to mitigate threats to the U.S. and
other countries and to work toward the ultimate closure of the Guantanamo
detention facility, consistent with good security practices and our values as a
nation.”
Geoff Morrell
Pentagon Press Secretary
Ambassador Dan Fried
Special Envoy for Closure of the Guantanamo Detention Facility
A version of this article appears in print on April 25, 2011, on Page A11 of the New York edition with the
headline: A Statement by the United States Government.

© 2017 The New York Times Company

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 EXHIBIT 6

STATEMENT OF
ERIC H. HOLDER, JR.
ATTORNEY GENERAL

BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

HEARING ENTITLED
“OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE”

PRESENTED ON
APRIL 14, 2010

 TESTIMONY OF ATTORNEY GENERAL ERIC HOLDER
BEFORE THE SENATE JUDICIARY COMMITTEE
APRIL 14, 2010

Good morning, Chairman Leahy, Senator Sessions, and members of the
Committee. I am pleased to appear before you today to discuss the accomplishments of
the Department of Justice in the past year. During my confirmation and over the course
of the past year I have articulated a very clear set of goals for the Department: protecting
the public against threats both foreign and domestic; ensuring the fair and impartial
administration of justice; assisting state and local law enforcement; and defending the
interests of the United States. I have pledged to accomplish these goals in service of the
cause of justice and free from politics and partisanship, as transparently as possible, and
in accordance with the rule of law.
The American people can be confident that the thousands of men and women of
the Department of Justice are tirelessly meeting these goals each and every day, whether
in the pursuit and prosecution of terrorists, in the fight against crime, or in protecting our
civil rights, preserving our environment, ensuring fairness in our markets, or fulfilling the
many other daily responsibilities of the Department.

FIGHTING TERRORISM
Protecting America against acts of terrorism remains the highest priority of the
Department of Justice. The Administration will continue to use all lawful means to
protect the national security of the United States, including, where appropriate, military,
intelligence, law enforcement, diplomatic, and economic tools and authorities. We will
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 aggressively defend America from attack by terrorist groups, consistent with the
Constitution and laws of the United States, including our international obligations.
As a counterterrorism tool, the criminal justice system has proven its great
strength in both incapacitating terrorists and gathering valuable intelligence. The
criminal justice system contains powerful incentives to induce pleas that yield long
sentences and gain intelligence that can be used in the fight against al-Qaeda and other
terrorist groups. In 2009, there were more defendants charged with terrorism violations
in federal court than in any year since 2001. The cases include fourteen individuals
indicted in Minnesota in connection with travel to Somalia to train or fight with the
terrorist group al Shabaab; an individual indicted in Chicago who recently pleaded guilty
in connection with a plot to bomb a Danish newspaper and for his involvement in the
November 2008 terror attacks in Mumbai; seven individuals charged in North Carolina
with providing material support to terrorism and conspiring to murder or injure persons
abroad; and two individuals indicted in undercover operations in Texas and Illinois after
they separately attempted to blow up an office building in Dallas and a federal courthouse
in Springfield. More recently, Umar Farouk Abdulmutallab, was charged with federal
crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near
Detroit on December 25, 2009. These cases are a sober reminder that we face aggressive
and determined enemies. The Department has worked effectively to ensure that terrorists
are brought to justice and can no longer threaten American lives. We will continue to use
all available tools whenever possible against suspected terrorists.
A leading example of the effectiveness of the criminal justice system is the case
of Najibullah Zazi. In February 2010, Zazi pleaded guilty in the Eastern District of New

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 York to a three-count superceding information charging him with conspiracy to use
weapons of mass destruction, specifically explosives, against persons or property in the
United States, conspiracy to commit murder in a foreign country, and providing material
support to al-Qaeda. Zazi admitted that he brought explosives to New York on Sept. 10,
2009, as part of plan to attack the New York subway system. This was one of the most
serious terrorist threats to our nation since September 11th, 2001, and, but for the
combined efforts of the law enforcement and intelligence communities, it could have
been devastating. On February 25, 2010, Zarein Ahmedzay and Adis Medunjanin,
associates of Zazi, were charged in a five-count superseding indictment with conspiring
to use weapons of mass destruction as part of the plan.
The Department’s work against terrorism includes civil as well as criminal
proceedings. In 2009, the Department litigated scores of habeas corpus petitions brought
by detainees held at the detention facility at Guantanamo Bay, Cuba. In these cases, we
vigorously defended our national security interests in a manner consistent with the rule of
law. The Department also successfully defended the Treasury Department’s designation
and attendant asset freeze of the United States branch of the Al Haramain Islamic
Foundation, Inc., a Saudi Arabia-based charity engaged in the widespread financial
support of terrorist groups around the world, including al-Qaeda and Chechen
mujahideen. We also obtained dismissal of over 40 nationwide class action lawsuits
against numerous telecommunications companies that were alleged to have assisted the
National Security Agency in post-September 11th surveillance activities.
In addition to these litigation matters, I am also pleased to report the completion
of the work of three task forces established by the President by Executive Orders on

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 January 22, 2009: one on interrogation and transfer policy, one on Guantanamo
detainees, and one on detention policy more generally.
Based on recommendations of the Interrogation and Transfer Task Force, the
Administration has established a High Value Detainee Interrogation Group – also known
as the “HIG” – an interagency team that combines some of our country’s most effective
and experienced interrogators with support personnel, including subject matter experts.
This specialized, interagency approach to interrogation has been used informally several
times over the past year in support of counterterrorism activities to interrogate high-value
detainees who are identified as having access to information with the greatest potential to
prevent terrorist attacks against the United States and its allies.
The Guantanamo Review Task Force rigorously reviewed pertinent information
regarding 240 Guantanamo detainees, determining their suitability for prosecution or for
transfer to another country – or, if neither of those options is available, continued
detention under the Authorization for the Use of Military Force, consistent with the rule
of law. Each of these decisions was reached by the unanimous agreement of the agencies
responsible for the review – the Departments of Justice, Defense, State, Homeland
Security, the Office of the Director of National Intelligence, and the Joint Chiefs of Staff.
The Detention Policy Task Force developed recommendations for the President
on bipartisan military commission reform legislation that was adopted as part of the 2010
National Defense Authorization Act. This legislation will help ensure that the
commissions are fair, effective, and lawful. The Task Force also contributed to the
formulation of a joint Department of Justice and Department of Defense protocol for
determining whether detainees who had been referred by the Guantanamo Review Task

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 Force for possible prosecution should be prosecuted in federal court or in reformed
military commissions. The Task Force also developed options for our future detention
policies that remain under review.

CRIME AND FRAUD
Day in and day out, the men and women of our law enforcement agencies, the
U.S. Attorney community, and the Criminal Division investigate and prosecute our
nation’s most serious crimes. From international organized crime and drug trafficking, to
complex cyber crime, to violent crimes and crimes against children, to financial fraud,
public corruption, and much more, the Department of Justice continues to disrupt
sophisticated criminal conduct across a broad range of areas.
We have taken a variety of steps to eliminate the threat posed by Mexican drug
cartels controlling the domestic drug market and plaguing our Southwest border.
Through stepped up enforcement and a coordinated Southwest border strategy, including
the Merida Initiative, we have made significant progress in addressing this serious threat.
Also, the Department is deeply concerned that international organized crime has grown
dramatically in scale and scope in the last 15 years and constitutes a national security
threat to the United States. To counter this, the Department is implementing a
comprehensive law enforcement strategy against international organized crime, which is
being carried out with its other Federal law enforcement partners.
In addition to addressing the threat of violent crime, we are hunting down all
those who commit serious frauds against the American people. In the wake of the
economic crisis, pursuing financial fraud, mortgage fraud, health care fraud, and fraud in

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 government spending have been among the Department’s top priorities. We are seeking
prison time for fraud offenders, working tirelessly to recover assets and criminally
derived proceeds, and striving to make whole the victims of such crimes.
Late last year, the Administration announced the creation of the Financial Fraud
Enforcement Task Force, an inter-agency organization that will spearhead our financial
fraud enforcement strategy. Through a coordinated effort, we have brought to
justice those in the finance industry who have embezzled their clients' money, who
have attempted to defraud the U.S. government of millions of dollars, who engage in
discriminatory lending practices, and many more. We have seized the assets of these
wrongdoers, and we will not let up.
On mortgage fraud, the FBI has more than doubled the number of investigating
agents and has created the National Mortgage Fraud Team at FBI headquarters. As of
January 12, 2010, the FBI was investigating more than 2,944 mortgage fraud cases and
45 corporate fraud matters related to the mortgage industry. U.S. Attorneys’ Offices are
participating in 23 regional mortgage fraud task forces and 67 mortgage fraud working
groups and are leveraging both criminal and civil tools, including civil injunctions and
civil monetary penalties, to combat mortgage fraud and related abuses.
We have a renewed commitment to fighting health care fraud as a Cabinet-level
priority at both the Department of Justice and the Department of Health and Human
Services. Through the creation of the Health Care Fraud Prevention and Enforcement
Action Team (HEAT), a senior-level joint task force, we are marshaling the combined
resources of both agencies in new ways to combat all facets of the problem. Our
Medicare Fraud Strike Force prosecutors and agents are using billing data to target a

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 range of fraudulent health care schemes, deploying appropriate criminal and civil
enforcement tools in hot spots around the country. Since it began operating in 2007, the
Strike Force has charged more than 500 defendants in 250 cases totaling approximately
$1.1 billion in fraudulent billings to Medicare. All told to date, more than 280 defendants
have been convicted, and nearly 205 have been sentenced to prison. Because this is a
model that works, as part of the HEAT initiative, we have expanded Strike Force
operations to seven metropolitan areas.
Finally, the Department has also brought successful civil enforcement actions to
protect taxpayer dollars and the integrity of government programs from fraud. In Fiscal
Year 2009, our recoveries under the False Claims Act topped $2.4 billion – the eleventh
time that our annual recoveries under the Act have exceeded $1 billion. Since 1986,
when the False Claims Act was substantially amended, the United States has recovered
more than $25 billion under the Act.

ADVANCING CIVIL RIGHTS
Over the last year we renewed the Department’s focus on civil rights, ensuring
that the Civil Rights Division is prepared to address both existing and emerging
challenges. This work is a priority for the administration, for the Department, and for me
personally.
In the wake of the nationwide housing crisis and the resulting wave of
foreclosures, the enforcement of fair housing and fair lending protections are among the
most pressing civil rights needs facing Americans. During the Department’s first year
under my leadership, the Division’s Housing and Civil Enforcement Section initiated 183

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 matters, filed 41 lawsuits, including 22 pattern or practice cases, and entered into 24
consent decrees. We also have reinvigorated the Department’s critical relationship with
HUD to expand our collaborative efforts and leverage each department’s resources and
tools. In keeping with the Administration’s commitment to combating financial crime,
and working with the Financial Fraud Enforcement Task Force, we have established a
Fair Lending Unit in the Division and hired a Special Counsel for Fair Lending. We have
begun to see the fruits of this labor. Earlier this month, we announced a more than $6
million settlement with two subsidiaries of AIG to resolve allegations of discrimination
against African-American borrowers by brokers with whom the subsidiaries contracted.
Prosecution of violent hate crimes also remains a top priority. The Division is
working to implement the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention
Act of 2009, training attorneys and law enforcement officers in its enforcement, and the
Division has several open investigations under the new statute. In the meantime, we have
seen increased activity in hate crimes prosecutions under our existing authority. In fact,
in the final three months of 2009, there was activity in the form of filings, sentencings, or
pleas in at least 13 hate crime cases brought by the Department, -- more than the entire
number of such cases filed in Fiscal Year 2006 or 2007. In 2009, the Division filed 19
hate crime cases, charging 43 defendants.
As President Obama mentioned during his State of the Union address, the Civil
Rights Division is once again vigorously pursuing cases of employment discrimination.
In the first year of the administration, the Division filed 29 employment-related lawsuits,
the largest number ever filed by the Division in a single year. Of the 29 lawsuits, 19 were
brought under the Uniformed Services Employment and Reemployment Rights Act, and

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 10 under Title VII. The Civil Rights Division has more than a dozen active pattern or
practice investigations. In addition, in New Jersey, the Division is challenging
examinations used by all of the municipalities in the state that are part of the civil service
system for promotion to police sergeant, which we believe have had a disparate impact
upon both African-Americans and Hispanics. The Department is also playing a leading
role in the administration’s Equal Pay Enforcement Task Force to ensure all applicable
equal pay laws are enforced throughout the country.
The Civil Rights Division is also working to strengthen enforcement of the Voting
Rights Act. The Division is preparing for review of thousands of redistricting plans that
jurisdictions will submit pursuant to Section 5 of the Act after release of the 2010 Census
results. The Division is stepping up enforcement of prohibitions against discriminatory
voting practices and procedures and has obtained consent decrees in Section 2 cases for
minority vote dilution arising from at-large methods of electing municipal governing
bodies. It is also working to ensure compliance with the language minority requirements
of the Act. The Division has begun an aggressive initiative to ensure compliance with the
provisions of the National Voter Registration Act requiring that eligible voters be able to
register at state social services agencies. The Division has begun inquiries of seven
states, and intends to expand its inquiries elsewhere. The Division is also gearing up for
enforcement of the new Military and Overseas Voters Empowerment Act of 2009.
In another important civil rights case, just last month, Agriculture Secretary
Vilsack and I announced the resolution of the Pigford II case, which was brought by
African-American farmers who allegedly suffered racial discrimination in USDA farm
loan programs. The settlement, which is contingent upon a congressional appropriation,

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 will provide $1.25 billion to eligible African-American farmers. The settlement
establishes a non-judicial claims process through which individual farmers may
demonstrate their entitlement to cash damages awards and debt relief.

ASSISTANCE TO STATE AND LOCAL GOVERNMENTS
One of the goals I established for the Department is to reinvigorate its traditional
role in fighting crime. Since the vast majority of criminal offenses are investigated and
prosecuted at the state and local levels, we have a duty to provide states and communities
the resources they need to prevent and fight crime and manage prisoners. I am proud to
say that the Department is meeting this charge through the efforts of our Office of Justice
Programs (OJP), COPS Office, and Office on Violence Against Women.
Last year, OJP awarded $5.6 billion to states, localities, tribal communities, and
others to support the full range of justice system activities, from prevention and
enforcement through corrections and reentry. This funding is being administered by OJP
within a framework of accountability and transparency. All grant solicitations and
awards are now posted on the OJP Web site, and OJP has strengthened internal control
practices and procedures to ensure that the grants process is open and fair.
Of this $5.6 billion, $2.5 billion -- $2 billion from Recovery Act funds and $500
million from Fiscal Year '09 funds -- went to support front-line law enforcement
operations under the Edward Byrne Memorial Justice Assistance Grants program, a vital
source of funding for police departments and sheriffs’ offices across the country. In
addition, OJP administered more than $200 million in other Recovery Act grants for a
total of 3,800 Recovery Awards. These awards serve the dual purpose of creating and

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 preserving critical public safety jobs and fostering local innovation. For example, more
than $22 million went to help state and local law enforcement agencies hire civilian staff
to serve as dispatchers, trainers, and intelligence analysts. These funds allow agencies
not only to move toward smarter, data-driven methods of policing, but also to free up
sworn personnel for street duty. We also awarded more than $10 million dollars to state
and local prosecutors’ offices to combat mortgage fraud and crimes related to vacant
properties. These grants are part of the Department’s priority effort to fight financial
fraud in all its forms. We will continue to help communities combat mortgage fraud
through additional funding and by providing training and technical assistance to
investigators and prosecutors.
OJP has also led the Department’s efforts to encourage evidence-based practices.
Innovations at the local level, such as mapping crime hot spots and using targeted
enforcement to address drug and gang violence, are at least partly responsible for the
recent drop in crime rates that we have seen in many cities. Research funded by our
National Institute of Justice has shown that this is far from a groundless claim; placebased policing, drug market interventions, and other methods do, indeed, work in
reducing crime. OJP has undertaken a comprehensive effort to integrate evidence-based
approaches such as these into our program development and policymaking activities.
The President’s budget proposal for fiscal year 2011 includes a number of items intended
to further those efforts, and we look forward to working with Congress to expand our
knowledge base and to disseminate that knowledge to the field.
In addition to the assistance provided to our partners in state, local, and tribal law
enforcement through OJP, the COPS Office last year awarded $1.26 billion, including $1

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 billion through the Recovery Act for its COPS Hiring Recovery Program, which will put
approximately 4,699 police officers and sheriffs deputies on America’s streets. The
mission of the COPS Office is to advance the practice of community policing as an
effective strategy in communities’ efforts to improve public safety by helping law
enforcement build relationships and solve problems. The Administration remains
committed to providing communities across the country with resources to support the
hiring (or rehiring) of 50,000 police officers.

TRIBAL JUSTICE
In the past year, the Department has made significant strides in strengthening
relationships between the United States government and tribal nations. Improving public
safety and law enforcement in tribal communities remains a top priority for the
Department of Justice. Earlier this year, I issued a directive to all United States
Attorneys with federally recognized tribes in their districts to develop, after consultation
with those tribes, operational plans for addressing public safety in Indian Country. This
approach recognizes that the public safety challenges in Indian Country are not uniform
and that the success of any intergovernmental relationship is based on consistent and
effective communication.
In developing district-specific operational plans for public safety in tribal
communities, I asked each of these United States Attorneys to pay particular attention to
violence against women in Indian Country and to work closely with law enforcement to
make those crimes a priority. To that end, and at the request of tribal leaders, the
Department is creating a task force on prosecuting violent crimes against women in

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 Indian Country. In addition, I am creating a Tribal Nations Leadership Council to advise
me on issues critical to Indian Country. The Council will be made up of one tribal leader
from each of twelve B.I.A. tribal regions and will be selected by the tribes of that region.
Constituting this landmark Council is an important step in the Department’s efforts to
improve communication and coordination with tribal nations.
On December 7, 2009, the Department reached a settlement in the extraordinarily
lengthy and contentious Cobell v. Salazar class-action case involving the government’s
handling of over 300,000 individual Indian trust accounts. The agreement, which is
contingent upon legislation and a district court fairness determination, provides for
approximately $1.4 billion to be distributed to class members and another $2 billion to
fund a buy-back program to address the continuing “fractionation” problem caused by
land interests being repeatedly divided as they pass through succeeding generations.

ENSURING COMPETITION
The Antitrust Division has focused on efforts to promote and protect competition,
standing firmly in the corner of the American consumer, helping ensure that consumers
receive innovative, high-quality products at the lowest prices. It has acted to protect
consumers in merger matters, conduct matters, and criminal matters, as well as actively
advocating for both domestic and international competition. The Division has focused on
important sectors of the economy, including agriculture, defense, energy, finance, health
care, telecommunications, and transportation, among others. Because addressing
antitrust issues increasingly demands a global approach, the Division has increased its

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 focus on the international front as well, seeking to engage foreign enforcers on both
policy and particular enforcement matters.
The Department has acted against six merger transactions already in Fiscal Year 2010,
reaching settlements to protect competition in the vast majority, including the
combination of Ticketmaster and Live Nation, and is currently litigating against Dean
Foods, the nation’s largest dairy processor, seeking divestiture of milk processing plants.
Non-merger aspects of the civil antitrust enforcement program have been active as well.
The Department has presented its views in important court competition proceedings, such
as filing statements of interest with the court regarding competitive concerns about
Google’s proposed settlement with the nation’s largest book publishers as well as
competitive concerns about so-called “pay-for-delay” agreements in the pharmaceutical
arena, whereby firms agree to delay the entry of generic-drug competition through
settlement of a patent dispute, forcing consumers to pay substantial increased costs for
needed drugs.
On the criminal side, our cartel enforcement has remained active. Over $1 billion in
criminal fines were obtained against Antitrust Division defendants in Fiscal Year 2009,
and nearly a quarter of a billion so far in the current fiscal year. But fines are only one
part of the story; individual accountability in terms of jail time is a major focus of our
criminal antitrust program. In Fiscal Year 2009, the Antitrust Division obtained jail
sentences against 80 percent of its defendants, amounting to 25,396 total jail days
imposed in its sentencings. Ongoing investigations of price fixing in the liquid-crystaldisplay and cathode-ray-tube industries continue and anticompetitive conduct in the
municipal bond industry has and will result in significant criminal fines and jail time.

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 The Department has also taken an active role advocating on behalf of competition and
consumers, including providing comments to the Federal Communications Commission
on broadband competition and embarking on an important series of joint workshops with
the USDA to examine agricultural issues in greater depth. Through these efforts we are
ensuring that American consumers have an ally in protecting their pocketbooks from
illegal marketplace conduct.

PROMOTING TRANSPARENCY
The President has pledged to make this Administration the most open and
transparent in history, and the Department is doing its part to make that pledge a reality.
We have worked to implement the President’s Memoranda on Transparency and the
Freedom of Information Act, including by issuing the new guidelines I issued with
respect to FOIA. Through outreach, education, and the review of cases in litigation,
additional information was – and continues to be – disclosed to the public through careful
application of the guidelines at the agency level.
The Department resolved a FOIA case in 2009 that further promoted the goals of
transparency and openness. As part of the settlement in National Security Archive, et al.
v. Executive Office of the President, et al., a case involving millions of electronic
messages in the Executive Office of the President (“EOP”), the plaintiff organizations
were provided with thousands of records describing the archiving of EOP e-mail and with
millions of restored e-mail. EOP also agreed to describe to plaintiffs how its current
system effectively preserves and archives email. The Department will continue to
advance the cause of transparency in the future.

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 PROTECTING THE ENVIRONMENT
The Department continues to vigorously enforce environmental laws through its
Environment and Natural Resources Division. In 2009, the Environment Division
brought actions to protect the nation's air, water, land, wildlife, and natural resources;
upheld its trust responsibilities to Native Americans; and defended important federal
programs. In Fiscal Year 2009, the Division secured nearly $69 million in civil and
stipulated penalties and $2.6 billion in corrective measures through court orders and
settlements. In addition, the Division successfully concluded 41 criminal cases against
85 defendants, obtaining over 42 years of jail time and nearly $73 million in fines.
Our enforcement priorities include reducing harmful air emissions from large
coal-fired power plants and oil refineries, cleaning up environmental sites, and preventing
water pollution, especially from municipal sewer systems and contaminated stormwater
runoff. In one case, In re Asarco, L.L.C., the successful conclusion of the largest
environmental bankruptcy reorganization in U.S. history also resulted in the largest
recovery of money for hazardous waste cleanup ever -- $1.79 billion to be used to pay for
past and future costs incurred by federal and state agencies and environmental restoration
at more than 80 hazardous waste sites in 19 states. Last year, we also entered into a
landmark agreement to clean up the contaminated Hanford nuclear site, a matter in which
both Secretary of Energy Chu and I were personally involved.
The Environment Division also successfully brought criminal prosecutions
against a number of companies and individuals who have intentionally discharged

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 pollutants from vessels en route to American ports, and it continued to work with the
Environmental Protection Agency to obtain the cleanup of major river bodies in the
United States, including the Fox River (Wisconsin), the Kalamazoo River (Michigan),
and the Hudson River (New York). Protecting the environment will continue to be one of
the Department’s most important objectives.

ENFORCING TAX LAWS
In support of its mission to defend and enforce the nation’s tax laws, the Tax
Division continues to assist the Internal Revenue Service (IRS) in tracking down tax
cheats, shutting down tax schemes and scams, and combating abusive tax shelters. In a
time of high deficits, it is essential to reassure the overwhelming majority of law-abiding
taxpayers that nobody is immune from paying taxes. Tax Division prosecutors work
closely with United States Attorneys’ offices to ensure that criminal tax statutes are
administered fairly and uniformly throughout the country. The Tax Division continues
to aggressively investigate and prosecute individuals who use offshore accounts to hide
income and assets in order to evade U.S. taxation. The Division’s efforts have resulted in
a number of high-profile prosecutions of not only the citizens who sought to evade their
tax obligations, but also the professionals who helped to develop and implement these
illegal schemes. The Tax Division continues to devote significant resources to assisting
the IRS in obtaining more information about individuals who maintain undeclared
foreign accounts. The worldwide publicity surrounding the Tax Division’s enforcement
efforts reflects the dramatic impact that the government has had in combating the

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 negative impact on tax administration of tax haven jurisdictions and traditional notions of
bank secrecy.
Unscrupulous lawyers, accountants, and tax return preparers present a serious tax
administration and law enforcement problem. While some professionals dupe unwitting
clients into filing false or fraudulent returns, others serve as willing “enablers,” often
providing a veneer of legitimacy to otherwise illegitimate or illegal transactions. The Tax
Division employs a range of civil and criminal enforcement tools to ensure that schemes
are detected and shut down, and that the participants are held accountable either civilly or
criminally.

NOMINATIONS
Mr. Chairman, I appreciate the hard work that you have undertaken to
expeditiously confirm the President’s nominees to the federal bench. Many of these
nominations are to courts in which judicial emergencies have been declared, as backlogs
are high and judicial vacancies have existed for an extended period of time. I appreciate
the confirmation hearings that you have held and the favorable reporting of nominees for
the consideration of the entire Senate. I encourage all members to provide up or down
votes on these nominees as rapidly as possible consistent with your constitutional duty to
advise and consent. There are currently 105 vacancies on the federal courts. Yet the
Senate has confirmed only 19 federal judges during the 15 months of this administration.
That is less than 34% of the President’s judicial nominees and less than half the number
confirmed during the same time period for Presidents Clinton and George W. Bush. I ask

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 that you do everything possible to move expeditiously to fill the vacancies on our federal
courts.
In addition, it is critical to fill United States Attorney, United States Marshal, and
other Department positions. Currently, there are 19 United States Attorney and 17
United States Marshal nominations awaiting Committee action, and I urge you to approve
them without delay. I am pleased that in recent weeks the Committee has approved other
nominees whose services I need at the Department of Justice, and we look forward to
their confirmation by the full Senate.

CONCLUSION
Mr. Chairman, I trust that the foregoing will help the Committee appreciate just
some of the wide-ranging efforts that the Department of Justice is undertaking to protect
the safety, rights, and resources of the American people. We have accomplished much,
but we are not standing still. I again recognize and applaud the thousands of
conscientious employees of the Department who have made these accomplishments
possible.

20

 Eric H. Holder, Jr.

Eric H. Holder, Jr. was sworn in as the 82nd Attorney General of the United States on
February 3, 2009 by Vice President Joe Biden. President Barack Obama announced his
intention to nominate Mr. Holder on December 1, 2008.
In 1997, Mr. Holder was named by President Clinton to be the Deputy Attorney General,
the first African-American named to that post. Prior to that he served as U.S. Attorney
for the District of Columbia. In 1988, Mr. Holder was nominated by President Reagan to
become an Associate Judge of the Superior Court of the District of Columbia.
Mr. Holder, a native of New York City, attended public schools there, graduating from
Stuyvesant High School where he earned a Regents Scholarship. He attended Columbia
College, majored in American History, and graduated in 1973. He graduated from
Columbia Law School in 1976.
While in law school, he clerked at the N.A.A.C.P. Legal Defense Fund and the
Department of Justice's Criminal Division. Upon graduating, he moved to Washington
and joined the Department of Justice as part of the Attorney General's Honors Program.
He was assigned to the newly formed Public Integrity Section in 1976 and was tasked to
investigate and prosecute official corruption on the local, state and federal levels.
Prior to becoming Attorney General, Mr. Holder was a litigation partner at Covington &
Burling LLP in Washington.
Mr. Holder lives in Washington with his wife, Dr. Sharon Malone, a physician, and their
three children.

 EXHIBIT 7

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173 of 260 DOCUMENTS

Copyright 2010 Federal News Service, Inc.
All Rights Reserved
Federal News Service
April 14, 2010 Wednesday
SECTION: CAPITOL HILL HEARING
LENGTH: 28063 words
HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE;
SUBJECT: OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE;
CHAIRED BY: SENATOR HERBERT KOHL (D-WI);
WITNESS: ATTORNEY GENERAL ERIC HOLDER;
LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.
BODY:
HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: OVERSIGHT OF THE U.S.
DEPARTMENT OF JUSTICE CHAIRED BY: SENATOR HERBERT KOHL (D-WI) WITNESS: ATTORNEY
GENERAL ERIC HOLDER LOCATION: 226 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.
TIME: 9:37 A.M. EDT DATE: WEDNESDAY, APRIL 14, 2010
SEN. KOHL: Good morning.
Before we begin today's hearing, we'll pause for a moment of silence in solidarity with the people of Poland as they
mourn the loss of their president, Lech Kaczynski, as well as so many others, in Saturday's tragic plane crash. (Pause.)
Thank you.
We welcome you all to today's oversight hearing. Regrettably, Chairman Leahy is not able to attend because he's at
the funeral of a good friend back home in Vermont. We'll proceed without him. And without objection, Senator
Leahy's statement will be placed in the record.
Attorney General Holder, it has been well over a year since you were confirmed, and this will be your third
oversight hearing before this committee.
We welcome you and thank you for making yourself accessible so that we can engage in one of our most important
responsibilities, oversight of the Justice Department. It's a duty that we take seriously. Regardless of the party in the
White House, oversight should not be conducted for the sake of political gain, but it should be a meaningful discussion
about the challenges facing the Justice Department and to provide a check on its actions and the use of taxpayer dollars.
Over the past year, the Justice Department has done many good things and should be applauded. The Department

 Page 27
HEARING OF THE SENATE JUDICIARY COMMITTEE; SUBJECT: OVERSIGHT OF THE U.S. DEPARTMENT
OF JUSTICE; CHAIRED BY: SENATOR HERBERT KOHL (D-WI); WITNESS: ATTORNEY GENERAL ERIC
HOLDER; LOCATION: 226 DIRKSEN S
I've just got seven minutes, as you know.
Would you ask your staff to respond to my staff to set up even a telephone call between the two of us -- it doesn't
have to be meeting -- to further discuss this, especially after you've been able to verify the information and provide it to
me, please?
ATTY GEN. HOLDER: We'll do that.
SEN. KYL: Totally different subject. On February 26th, the House passed the Intelligence Authorization Act for
this fiscal year. Just before that, it stripped a provision that would have criminalized cruel, inhuman and degrading
interrogations, which was a staggering provision in its breadth and ambiguity. A CIA agent, for example, could have
been punishable with a prison sentence for up to 15 years if a court concluded that the agent blasphemed an individual's
religious belief during the course of an interrogation.
Does the administration support adding such a provision to the criminal code?
ATTY GEN. HOLDER: I'm not familiar with that provision. Torture is certainly a violation of our law. When it
comes to, I guess, cruel, inhumane, degrading treatment, I would want to look at that statute and see exactly what the
intention was in trying to criminalize that. I'm not familiar with that.
SEN. KYL: Would you respond to me in writing as to what the department's position on that would be? Because I
suspect the issue will arise again.
ATTY GEN. HOLDER: Right. That's fine. I'll do that.
SEN. KYL: I thank you very much.
SEN. FEINSTEIN: Thank you very much, Senator Kyl.
Senator Cardin?
SEN. BEN CARDIN (D-MD): Thank you, Madame Chair.
And General Holder, it's always a pleasure to have you before our committee. And we thank you very much for
your service.
I want to follow up on the points that many of my colleagues have raised in regards to Guantanamo Bay and the
handling of the detainees that are there. I recently was in Guantanamo Bay. I had a chance to visit there two weeks
ago. And it was my second visit. And the type of facility there is certainly one that is world class from the point of
view of how it treats detainees -- the type of physical facilities, et cetera.
It was constructed in order to be able to obtained -- intelligence information from detainees. Its purpose was also to
detain individuals; and then third, for pretrial and trial purposes. Well, the actionable intelligence information is no
longer as relevant as it was when it was first constructed. The number of detainees is far below its capacity. And it's
been used very -- hasn't been used very much for pretrial or trial cases. So as a practical matter, as a -- as a budget issue
and certainly from a symbol, Guantanamo Bay has to close.
Now, we've talked a little bit today about what do we do about the people that are there, how do we try them, do we
use Article III courts, do we use the military commissions? I support -- what some of my colleagues have said is, I want
to give you maximum choice. I don't want to restrict the way to get the most effective results. I don't want to give the
detainees more rights than they should have. And that is why restrict the venue in which we should try them.
But I want to deal with those that we cannot release now and we cannot try. You inherited this problem, but it is an

 Page 28
HEARING OF THE SENATE JUDICIARY COMMITTEE; SUBJECT: OVERSIGHT OF THE U.S. DEPARTMENT
OF JUSTICE; CHAIRED BY: SENATOR HERBERT KOHL (D-WI); WITNESS: ATTORNEY GENERAL ERIC
HOLDER; LOCATION: 226 DIRKSEN S
issue that we have to deal with. On previous occasions, you've said that there will be a process for review to make sure
that basic rights are afforded. How far along are we in making that type of review process public in order to get
international recognition and hopefully support for how we are dealing with the -- those that are -- will be -- continue to
be detained without trial?
ATTY GEN. HOLDER: Well, that is something that we're still working on. I think that there certainly needs to be
a process by which an initial determination is made, and that has already occurred with regard to the task force and in
the principals' committee that voted on making the decision to detain these 48 -- these 48 people.
They -- obviously, there is a right for them to challenge that determination in federal court. But as I've talked about
with Senator Graham, there has to be, I think, an ongoing -- and the administration agrees with this, that there has to be
some kind of ongoing review mechanism put in place to ensure that somebody who is detained on this basis continues
to be a danger. It is something that we are still working through in the -- in the interagency -- and, frankly, working
with Senator Graham, as well.
My hope would be that we would have something that we will be able to share -- and put in place, more
importantly -- in a -- in a relatively short period of time. But this is something that has been -- has been focused on.
SEN. CARDIN: Well, let me just repeat what was the 9/11 Commission's recommendation: that the United States
engage its friends and develop a common coalition approach towards detention and humane treatment of captured
terrorism -- terrorists.
I guess my point is that it's fine for us to internally develop a review process, but if we don't put sunlight on it, if we
don't -- if we don't open this process up, if we don't engage the international community, and if we don't engage the
international community in how we're going to deal with detainees in the future, this war is not going to end any time
soon. And we are -- we are apprehending people today, and we still yet have a real international accord as to how these
detainees should be handled. Should we have another Geneva type convention to deal with this? I think we're looking
forward to some broader recommendations, rather than trying to deal with this internally in this country.
ATTY GEN. HOLDER: No, I agree with you. I don't think that that review mechanism can be done entirely -- it
must be done in as transparent a way as we can. There is a symbolic significance to this review process, in the same
way that there is a symbolic significance to the continued existence of Guantanamo. We have to deal with this not only
on a substantive level, but also on a symbolic level.
And it would seem to me again, taking into account a variety of things, that we want to make sure that this review
process, the existence of this review process, is something that is widely known.
SEN. CARDIN: Well, when should we expect some specifics as to how these procedures are being handled? I've
heard you say frequently as soon as possible. But it's getting late.
ATTY GEN. HOLDER: Yeah, I mean, it is -- it is a priority. I mean, I think -- you know, what has -- certainly
we've now gotten to the point where we have made the determination.
That very able task force made its recommendations, unanimously agreed to by the principals, that 48 people
should be held in this way. Before we were talking about something that was theoretical. Now it is real.
We've identified who those people are. And I think it is now incumbent upon us to develop as quickly as we can
what the review mechanism is going to be and how transparent we can make that.
SEN. CARDIN: Sometime this year?
ATTY GEN. HOLDER: I would certainly think that is -- I would -- I would -- I certainly think we can do that.

 Page 29
HEARING OF THE SENATE JUDICIARY COMMITTEE; SUBJECT: OVERSIGHT OF THE U.S. DEPARTMENT
OF JUSTICE; CHAIRED BY: SENATOR HERBERT KOHL (D-WI); WITNESS: ATTORNEY GENERAL ERIC
HOLDER; LOCATION: 226 DIRKSEN S
SEN. CARDIN: Sometime this month?
ATTY GEN. HOLDER: I'm not sure we can do that.
SEN. CARDIN: (Laughs.) I just urge you. This is an issue that is difficult for us to defend, when we don't have
anything to defend. We don't have a policy to defend. So I just urge you to get that to us as quickly as possible.
Let me -- let me turn to a separate subject dealing with our juvenile justice system. There's been recent reports that
have been released showing that many of the individuals in our juvenile justice system have been victimized.
I would hope that you are acting on that report. And the Department of Justice has significant responsibility in
regards to how juveniles are handled in this country, not only from the federal point of view but our states'.
And I would think this should be a very high priority. And I know our committee is looking at legislation here.
But we'd certainly welcome your thoughts as to what we should be doing, in regards to improving our juvenile justice
system.
ATTY GEN. HOLDER: Well, we'd like to work with you in that regard. The reports that I've seen from a variety
of contexts I think are very disturbing, about how juveniles are treated, how they are victimized too often in facilities
where, frankly, they should not be held.
I think that, you know, the purpose of the juvenile system is rehabilitation. And if that is to occur, we have to have
a juvenile system that is capable of doing that. And so I will look forward to working with you in trying to make our
juvenile system what it can be and too frequently is not.
SEN. CARDIN: Thank you.
Thank you, Madame Chair.
SEN. FEINSTEIN: Thank you, Senator Cornyn (sic).
I'd like to take this opportunity to put in the record National Security Division statistics on unsealed international
terrorism and terrorism-related convictions, and also a letter dated February 18th from the department.
Senator Cornyn?
SEN. JOHN CORNYN (R-TX): Thanks. Thank you, Madame Chairman.
Good morning, General Holder.
ATTY GEN. HOLDER: Good morning.
SEN. CORNYN: In the short time we have together, I want to ask you a little bit about the financial crisis and
what the department is doing to investigate and prosecute criminal activity there; the violence in Mexico and the work
that the administration is doing to deal with that; and also what the administration is doing, what the department is
doing, with regard to health-care fraud. And I have some specific questions there.
But I suspect you'll agree with me that criminal prosecution can be an effective deterrent to those who might be
tempted to commit future crimes.
ATTY GEN. HOLDER: It's the most effective deterrent.
SEN. CORNYN: I agree. And that's why, as we have seen the investigation of the financial collapse that reached
its nadir during -- with Lehman Brothers and AIG, and this massive infusion of taxpayer money to help prop up our

 EXHIBIT 8

July 15, 2011

E1331

CONGRESSIONAL RECORD — Extensions of Remarks

EXTENSIONS OF REMARKS
SUPPORT REUNIFICATION OF
CYPRUS

HON. EDOLPHUS TOWNS
OF NEW YORK

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Mr. TOWNS. Mr. Speaker, I rise today to
urge this Administration to join in the efforts to
reach a reunification agreement on the island
of Cyprus.
For many years, international organizations
have been engaged in the efforts to bring
about a negotiated compromise to the dispute
in Cyprus and a reunification of the island.
These negotiations have been focused around
coming to a solution which benefits both Cypriot communities.
On July 7, 2011, the Greek Cypriot and
Turkish Cypriot leaders met with UN Secretary
General Ban Ki-moon in Geneva in a new effort to reach a deal on reunification. Secretary
Ban Ki-Moon is pushing both sides to come to
an agreement before Cyprus takes up a steering role in the European Union. This was the
third round of three-way talks that Secretary
Ban Ki-Moon has held with Cyprus Leader
Demetris Christofias and Turkish Cypriot leader Dervis Eroglu.
I stand today to ask the Administration to
take an active role to bring about a solution
that would benefit both Cypriot communities.
This ongoing disagreement is not helpful and
reunification of Cyprus will only benefit the
world community.
Assistant Secretary of State for European
and Eurasian Affairs, Philip Gordon, testified
that ‘‘resolution of the Cyprus problem will
have a tremendous impact on the region by
strengthening peace, justice, and prosperity on
the island, advancing Turkey’s European
Union accession, improving NATO-EU cooperation and removing a source of friction
between two NATO Allies, Greece and Turkey.’’
I wholeheartedly agree and urge the Administration to take action to ensure that an accord is achieved that would lead to an independent government with both Greek and
Turkish Cypriot governmental engagement.
f

ENERGY AND WATER DEVELOPMENT AND RELATED AGENCIES
APPROPRIATIONS ACT, 2012
SPEECH OF

HON. ROBERT J. WITTMAN
OF VIRGINIA

IN THE HOUSE OF REPRESENTATIVES

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Friday, July 8, 2011
The House in Committee of the Whole
House on the State of the Union had under
consideration the bill (H.R. 2354) making appropriations for energy and water development and related agencies for the fiscal year
ending September 30, 2012, and for other purposes:

Mr. WITTMAN. Mr. Chair, I would like to address some concerns from my constituents

about the Army Corps of Engineers permitting
process.
As I travel around Virginia’s First District, I
hear from many constituents about their frustration with policies and regulations from
Washington, D.C. Unfortunately, large federal
government bureaucracies can get out of control and fail to protect the citizens and taxpayers.
The Army Corps of Engineers is an important agency in coastal Virginia. They have
many responsibilities to promote navigation,
commerce and environmental restoration.
However, there are some occasions where I
believe the multiple levels of bureaucracy and
lack of accountability of decision makers can
lead to situations that are unfair to Americans.
I’ve worked on the behalf of one of my constituents, a small marina owner who believes
he was harmed due to a permitting mistake by
the U.S. Army Corps of Engineers. In this
case a permitting decision ultimately cost this
small business a significant amount of money.
I raise these issues to highlight the impact
Agency action can have on main street businesses. I raise these issues to suggest the
need for additional accountability to ensure
that Army Corps permitting decisions are
made appropriately and that the Corps works
hand in hand with small businesses to mitigate
financial harm.
f

RETIREMENT
OF
NERISSA
BRETANIA-UNDERWOOD,
PHD.,
FROM THE GUAM DEPARTMENT
OF EDUCATION

HON. MADELEINE Z. BORDALLO
OF GUAM

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Ms. BORDALLO. Mr. Speaker, I rise today
to recognize Nerissa Bretania-Underwood,
PhD., for her extensive years of educational
leadership on Guam. Dr. Bretania-Underwood
is retiring from her career as the Superintendent for the Guam Department of Education (GDOE) after over 30 years of service
to our island’s education system.
Dr. Underwood was raised in the southern
villages of Agat and Santa Rita, Guam. She
received her Bachelor of Arts degree in Education, with a double major in Elementary and
Special Education, from the University of
Guam in 1981. After gaining teaching experience as a special education teacher at Harry
S. Truman Elementary School, she became a
consulting resource teacher for the GDOE’s
Division of Special Education. In 1985, she
earned a Master of Science in Education, from
the University of Oregon in Eugene, Oregon,
specializing in the implications of special education placement in Guam. Shortly thereafter,
in 1989, the University of Oregon conferred a
Doctor of Philosophy in Education degree on
Dr. Nerissa Underwood.
Dr. Underwood returned to Guam in 1990 to
become an assistant professor at the Univer-

sity of Guam and the program evaluator for
GDOE’s Division of Special Education. In
1993, she was named Administrator for
GDOE’s Research, Planning and Evaluation
Division, which provides data on the condition
of Guam’s education system to local educators and policy makers. In 2003, Dr.
Bretania-Underwood served as Interim Superintendent for GDOE, and in 2007, she was
named the Assistant Superintendent of Special Education. In 2008, Dr. Bretania-Underwood assumed the position of Superintendent
of Guam’s public education system. As the superintendent of Guam’s public school system,
Dr. Underwood worked to address structural
management issues facing GDOE. She made
significant progress to improve financial accountability within the school system, and I
recognize her efforts to utilize Recovery Act
Funds to improve the quality of education and
school facilities on Guam.
Dr. Nerissa Underwood is married to Dr.
Robert A. Underwood, the President of the
University of Guam and former Guam Congressman. She is blessed with three children:
Christopher, Gerecka, and Mike; and nine
grandchildren. Throughout the years, Dr.
Underwood has been active in many community and non-profit organizations, such as the
Filipino Community of Guam, Iloilo Association
of Guam, the American Red Cross, the Guam
Humanities Council, the St. Paul Christian
School Board, and the Guam Women’s Club.
She has contributed and devoted much of her
knowledge and talents toward improving the
quality of life for everyone who calls Guam
home.
Today, I join the people of Guam in extending a sincere Un dangkulo Na Si Yu’os Ma’ase
to Dr. Nerissa Bretania-Underwood for her
over 30 years of dedicated service to our island’s children and public school system.
f

IN OPPOSITION TO THE PRESIDENT’S
NOMINATION
OF
MATHEW OLSEN TO LEAD THE
NATIONAL COUNTERTERRORISM
CENTER

HON. FRANK R. WOLF
OF VIRGINIA

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Mr. WOLF. Mr. Speaker, I submit a letter I
sent to Senate Select Committee on Intelligence Chairman DIANNE FEINSTEIN opposing
the President’s nomination of Mr. Matthew
Olsen to lead the National Counterterrorism
Center.
HOUSE OF REPRESENTATIVES
July 14, 2011.
Hon. DIANNE FEINSTEIN,
Chairman, Senate Select Committee on Intelligence, Hart Senate Office Building, Washington, DC.
DEAR SENATOR FEINSTEIN: I write in opposition to Mr. Matthew Olsen’s nomination to
serve as director of the National Counterterrorism Center (NCTC), which is located in

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.
Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.
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CONGRESSIONAL RECORD — Extensions of Remarks

my congressional district. I believe Mr.
Olsen exercised questionable judgment and
made misleading statements while serving as
the special counselor to the attorney general
and executive director of the Obama Administration’s Guantanamo Review Task Force,
where he led the interagency process to implement the president’s executive order that
led to the release of a number of dangerous
terrorist detainees held at the Guantanamo
Bay Naval Base. Dozens of high risk terrorist
detainees recommended for release by the
task force led by Mr. Olsen were released
abroad to dangerously unstable countries,
including Yemen, Somalia and Afghanistan.
As then-ranking member and now chairman of the House Commerce-Justice-Science
Appropriations subcommittee—which funds
the Justice Department, Federal Bureau of
Investigations, Bureau of Prisons, U.S. Marshals Service and which helped fund the
NCTC’s predecessor, the Terrorist Threat Integration Center—I was disturbed by decisions and statements made by Mr. Olsen in
2009 while he led the task force. These concerns have deepened based on new information that has come to light in recent articles
from Newsweek, The Washington Post, The
National Journal and The Weekly Standard.
These reports have raised troubling questions about Mr. Olsen’s leadership of the
task force and his actions in response to
White House influence.
Additionally, my personal interactions
with Mr. Olsen, as well as these subsequent
news reports, lead me to conclude that he
was not forthright with the Congress and
may have changed detainee assessments
under political pressure from administration
officials. I believe these are troubling concerns which deserve a thorough investigation
and should give the Senate serious pause as
it considers who should lead the NCTC. I
have visited the NCTC on several occasions
and have met with a number of its former directors, as well as the former and current directors of National Intelligence. I have seen
firsthand the critical work that is done by
the center and fully understand the need for
an independent, capable and principled director to lead the operation.
There are three concerns that have led me
to oppose Mr. Olsen’s nomination. First, it is
clear to me that in order to achieve the
president’s promise to close Guantanamo
Bay during his first year in office, Mr. Olsen
may have been susceptible to the immense
political pressure placed on the interagency
task force to re-classify detainee threat levels. Second, it has become clear that Mr.
Olsen’s task force may have altered some detainee assessments—overturning Department of Defense assessments—in order to
clear and expedite the release of a large
number of detainees. Third, I have recently
learned that Mr. Olsen was not forthright
with me and my staff about the effort to release a number of Uighur detainees to northern Virginia in 2009. Attached is a white
paper that addresses these concerns in greater detail.
Leading the NCTC is a serious responsibility and requires a director that is exceptionally experienced, forthcoming, trustworthy and has good judgment. The analyses
and recommendations provided by the NCTC
have direct bearing on the safety of the
American people. The director must be able
to withstand political pressure from all
sides, facilitate the complete and straightforward sharing of information and ensure
unbiased analysis. I do not question Mr.
Olsen’s professional qualifications for this
position, but from my observations of his recent leadership positions, I believe that he
lacks the judgment to lead the NCTC.
I am willing to testify about my concerns
during your committee’s upcoming con-

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firmation hearing for Mr. Olsen. Please do
not hesitate to contact me at 202–225–5136 to
discuss any of this information.
Best wishes.
Sincerely,
FRANK R. WOLF,
Chairman, CommerceJustice-Science Subcommittee,
House
Appropriations Committee.
SUMMARY OF CONCERNS REGARDING MR.
OLSEN’S LEADERSHIP AND ACTIONS AS EXECUTIVE DIRECTOR OF THE OBAMA ADMINISTRATION’S GUANTANAMO REVIEW TASK FORCE
1. QUESTIONABLE ALTERING OF GUANTANAMO
BAY DETAINEE ASSESSMENTS

I am concerned about new information reported by The Weekly Standard about the
assessments of detainees who were transferred abroad in 2009. Throughout that year,
I repeatedly wrote the president and attorney general expressing concern over the release of certain detainees believed to be
threats by the Department of Defense (DOD).
I was also deeply concerned that detainees
were being released to dangerously unstable
countries, such as Yemen, Somalia and Afghanistan. Despite my warnings in the fall of
2009, detainees continued to be released to
these countries until the administration was
forced to halt releases to Yemen following
the attempted attack by the Christmas Day
bomber, who trained in Yemen with al Qaeda
in the Arabian Peninsula.
According to a July 13, 2011, article in The
Weekly Standard, ‘‘[Olsen’s] task force approved most of the detainees remaining at
Guantanamo for transfer, clearing the way
for the Obama administration to empty most
of the detention facility’s cells. But a review
of leaked detainee threat assessments reveals that many of the detainees approved
for transfer [by Olsen’s task force] were
deemed ‘‘high’’ risks by Joint Task Force
Guantanamo (JTF–GTMO), which oversees
the detention and interrogation of detainees.
Moreover. JTF–GTMO recommended that
most of these detainees be retained in U.S.
custody—precisely the opposite of the task
force’s recommendations.’’
The article continues, ‘‘In its final report,
dated January 22, 2010, Olsen’s task force reported that 126 detainees, out of a total of
240, were ’approved for transfer.’ Olsen’s task
force approved roughly 2 out of every 3 (65
percent) Guantanamo detainees for transfer,
JTF–GTMO recommended that approximately 1 out of every 4 (25 percent) be transferred.’’
There is one case in particular that serves
as a good example of the troubling discrepancy between Olsen’s recommend release of a
detainee that JTF–GTMO considered to be
‘‘high’’ risk. In early 2010, I wrote White
House counterterrorism adviser John Brennan about one detainee, Ayman Batarfi,
whom the DOD believed to be closely connected to al Qaeda’s anthrax program. Brennan forcefully rejected my concerns about
Batarfi. However, as a recent Weekly Standard article notes:
‘‘A recently leaked threat assessment prepared at Guantanamo draws into question
the Obama administration’s analysis of a detainee [Batarfi] who was transferred to
Yemen shortly before all future transfers to
the unstable nation were suspended.’’
‘‘Brennan decided to answer Wolf’s challenge by sending a letter on White House stationery to then-House speaker Nancy Pelosi
on February 1, 2010. ABC News obtained a
copy of the letter and published it online.
Brennan wrote:
‘During the briefing on January 13, Representative Wolf made allegations that one
detainee repatriated to Yemen had been in-

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July 15, 2011

volved in weapons of mass destruction. As it
has done in every case, the task force thoroughly reviewed all information available to
the government about this individual and
concluded that there is no basis for the assertions Representative Wolf made during
this session. I am attaching a classified addendum to this letter that addresses these
concerns directly.’
‘‘But a recently leaked April 29, 2008,
threat assessment prepared by Joint Task
Force Guantanamo (JTF–GTMO) contains
numerous references to Batarfi’s ties to al
Qaeda’s anthrax program. These connections
were made through a known al Qaeda front
named al Wafa, which employed Batarfi and
provided cover for al Qaeda’s pre–9/11 pursuit
of an anthrax capability . . .
‘‘For all of these reasons, and more.
Batarfi was deemed a ‘high risk’ who is ‘likely to pose a threat to the U.S.. its interests,
and allies’ by the JTF–GTMO team. Batarfi
was also considered to be of ‘high intelligence value.’ ’’
This newly leaked 2008 assessment raises
serious questions about why Olsen’s task
force didn’t include the DOD’s information
about Batarfi’s ties to the al Qaeda anthrax
program as well as their judgment that
Batarfi was, in fact, ‘‘likely to pose a threat
to the U.S.’’ This information raises questions about the integrity of the task force’s
review and whether undue political pressure
to release more detainees led task force
members to doctor detainee assessments.
The Weekly Standard’s Thomas Jocelyn
succinctly posits in the July 13, 2011, article,
‘‘It is clear that the Guantanamo Review
Task Force, headed by Matthew Olsen, approved a large number of ‘high’ risk transfers. The senators presiding over Olsen’s confirmation hearing may want to ask: Why?’’
2. POLITICAL PRESSURE ON THE GUANTANAMO
BAY DETAINEE TASK FORCE

I am concerned about political pressure
placed on Olsen and the task force by administration officials. Although the administration asserts that the task force was independent, it is clear that the task force reported directly to the White House and participated in meetings led by White House
chief of staff Rahm Emanuel. According to
the April 23, 2011, Washington Post article:
‘‘In late April [2009], Obama heard some
jarring news during a Situation Room meeting with the interagency task force reviewing the case of every detainee at Guantanamo.
‘‘The president asked Matthew G. Olsen,
the Justice Department lawyer heading the
task force, approximately how many Guantanamo detainees could be prosecuted, according to administration officials.
‘‘Probably fewer than 20, Olsen said.
‘‘The president seemed peeved that the
number was so small, in contrast with the
optimistic predictions during his election
campaign that nearly all of the remaining
detainees could face trial or be transferred.
The number would eventually rise to 36.’’
I am concerned that pressure from White
House officials may have led Olsen and his
task force to inflate the number of cases eligible for prosecution from ‘‘fewer than 20’’ to
the 36 that were ultimately provided to the
administration. The nearly 100 percent increase in the number of cases brought forward for prosecution following the president’s comment merits a serious review of
whether political pressure led the task force
to alter its independent assessment of detainees.
The recent Weekly Standard analysis
notes, ‘‘[Olsen’s] task force approved only 35
percent of the detainees for indefinite detention or prosecution, whereas JTF–GTMO recommended that roughly 75 percent be retained in DoD custody.’’ This dramatic shift

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in the number of cases recommended by Mr.
Olsen raise serious questions about whether
pressure from the president and other administration officials led him to inflate the
number of detainees recommended for trial.
3. MISLEADING CONGRESS ABOUT THE TRANSFER

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OF UIGHUR DETAINEES TO THE UNITED STATES

It has become clear that the administration was directing Mr. Olsen to intentionally
withhold information from members of Congress and he willingly complied with their
inappropriate direction. According to Newsweek The Washington Post and The National
Journal, the administration was planning a
secret transfer and settlement of at least
two Uighur detainees to northern Virginia in
April 2009. Each of these reports indicates
the degree to which the White House attempted to hide this effort from the Congress
and the public.
According to a May 2009, article in Newsweek, White House officials are alleged to
have been particularly concerned about Republican members of Congress being made
aware of the secret transfer. Newsweek reported, ‘‘As part of their efforts to shut down
the Guantanamo Bay detention center,
Obama Administration officials were poised
in late April to make a bold, stealthy move:
they instructed the U.S. Marshals Service to
prepare an aircraft and a Special Ops group
to fly two Chinese Uighurs, and up to five
more on subsequent flights, from Gitmo to
northern Virginia for resettlement. In a conference call overseen by the National Security Council, Justice and Pentagon officials
had been warned that any public statements
about Gitmo transfers would inflame congressional Republicans, according to a lawenforcement official who asked not to be
named discussing internal deliberations.’’
(This operation appears similar to the administration’s secret transfer of Somali terrorist Ahmed Abdulkadir Warsame to New
York City for civilian trial on July 5 after
spending two months on a U.S. Navy ship).
It has recently come to my attention that
I was misled about the status of the transfer
of the Uighur detainees in April 2009. This information confirms the Newsweek report
that career federal employees were explicitly
directed to hide this information from members of Congress, especially Republican
members.
During an April 22, 2009, meeting in my office with members of the Guantanamo Bay
Detainee Review Task Force, including Mr.
Olsen, I inquired about the status of the potential transfer of Uighur detainees to the
United States. Mr. Olsen indicated that a decision had not yet been reached on the transfer of the detainees. None of the other career
or political officials in the meeting countered Mr. Olsen’s assertion.
That is why I was deeply concerned to
learn in an April 2011, Washington Post article, that the final decision on the transfer of
the Uighur detainees had been made during a
White House meeting eight days before my
meeting with Mr. Olsen. According to The
Washington Post article, ‘‘The first concrete
step toward closing the detention center was
agreed upon during an April 14, 2009, session
at the White House. ‘It was to be a stealth
move . . . They were going to show up here,
and we were going to announce it,’ said one
senior official, describing the swift, secretive
operation that was designed by the administration to preempt any political outcry that
could prevent the transfer.’’
Following the publication of this article in
April, I personally called Mr. Olsen to ask
whether he was aware at the time of my
meeting with him on April 22, 2009, that a decision had already been made on the transfer
of the detainees. He told me that he had been
aware of the decision prior to our meeting.

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I believe that I was intentionally misled by
Mr. Olsen and other administration officials
during my April 22 meeting with the task
force. I also am concerned that the attorney
general did not acknowledge that a decision
had been made when he appeared before the
House Commerce-Justice-Science Appropriations subcommittee the following day. That
is why I was surprised when my office was
notified by a career federal employee that
the administration was misleading the Congress and planned to secretly transfer the detainees around May 1, 2009.
As Newsweek reported, ‘‘Then on May 1,
Virginia GOP Rep. Frank Wolf got tipped off.
Furious, he fired off a public letter to President Obama, charging that the release of the
Uighurs—Muslim separatists opposed to the
Chinese government—could ‘directly threaten the security of the American people.’
White House officials were not happy . . .
The flight never took off.’’
f

HONORING
ROBERT
THORSEN
UPON THE OCCASION OF HIS RETIREMENT

HON. DANIEL E. LUNGREN
OF CALIFORNIA

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Mr. DANIEL E. LUNGREN of California. Mr.
Speaker, I rise to highlight the career of Robert Thorsen, on the occasion of his retirement,
on July 4th, 2011, and to thank him for his
more than twenty-three years of distinguished
service and dedication to the United States
House of Representatives.
Mr. Thorsen helped guide the House community from mainframe computers to the
House Cloud of today. He was responsible for
re-establishing the House Information Resources (HIR) Technology Call Center, TCC,
and he helped expand the TCC into a 24/7,
365-days-a-year operation. In the past several
years, Bob has worked with the HIR Technology Support Escalations Team to provide
high-quality support to all House offices. He
has also been involved in continuity and contingency planning efforts for the House.
Beyond his work at the House, Mr. Thorsen
served in the U.S. Army and U.S. Army Reserve. He was recalled to active duty in 1990,
serving in Saudi Arabia and Kuwait during operations Desert Shield, Desert Storm and
Desert Calm. He retired from the reserves in
2002 with the rank of Lt. Colonel.
Mr. Thorsen’s knowledge, experience, dedication and consistently outstanding performance have set an example for superior customer service. These traits have also earned
Mr. Thorsen the respect of his co-workers and
colleagues.
On behalf of the entire House community,
we extend congratulations to Robert (Bob)
Thorsen for his many years of dedication, outstanding contributions and service to the
House.
We wish him many wonderful years in fulfilling his retirement dreams.

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RETIREMENT OF ARLENE REYES
UNPINGCO FROM THE GUAM DEPARTMENT OF EDUCATION

HON. MADELEINE Z. BORDALLO
OF GUAM

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Ms. BORDALLO. Mr. Speaker, I rise today
to recognize Arlene Reyes Unpingco, for her
years of support to the education system on
Guam. Mrs. Unpingco is retiring as Deputy
Superintendent of Educational Support and
Community Learning for the Guam Department of Education (GDOE) after 25 years of
service to the people of Guam.
Mrs. Unpingco began her career ar GDOE
immediately after receiving her Bachelor of
Arts Degree in Education, majoring in Elementary and Special Education, from the University of Guam in 1986. In 2000, Mrs. Unpingco
received her Master’s Degree in Education,
with specialization in Administration & Supervision, again from the University of Guam.
Mrs. Unpingco began her career as an elementary and middle school teacher on Guam.
She later was promoted to serve as an Assistant Principal, and eventually, School Principal
in several local schools. In 2008, Mrs.
Unpingco’s contributions to the classroom and
through education administration were recognized as she was appointed to the role of
Deputy Superintendent of Educational Support
and Community Learning. In her years of service, her commitment to our students and leadership in administration has helped to
strengthen our island’s education system in
many far reaching ways.
Mrs. Unpingco was born and raised in the
central village of Tamuning, Guam, on September 15, 1956. She is married to the Honorable Steven Sablan Unpingco, retired Superior
Court Judge and resides, with her family, on
the shores of beautiful Pago Bay, Chalan
Pago. She is blessed with five children: Jan,
Jason, Jossalyn, Steven, and Michael; and
four grandchildren: Brandon, Jaylene, Jenna,
and Kailani.
It is on the occasion of Mrs. Unpingco’s retirement from the Government of Guam’s Department of Education that I join the people of
Guam in acknowledging her service and dedication to our island’s public schools and the
education of Guam’s children. I wish her the
best in her retirement and in her future endeavors.
f

IN HONOR OF CONGRESSMAN
FRANK MASCARA

HON. JASON ALTMIRE
OF PENNSYLVANIA

IN THE HOUSE OF REPRESENTATIVES

Friday, July 15, 2011
Mr. ALTMIRE. Mr. Speaker, I rise to pay
tribute to former Congressman Frank R. Mascara, who passed away Sunday, July 10 at
the age of 81. Born in Belle Vernon, Pennsylvania, Congressman Mascara proudly served
southwestern Pennsylvania for over 30 years,
first at the county level, then for four terms in
the United States House of Representatives.
A first-generation Italian-American, Mascara
embodied the humble, hardworking nature of
his immigrant parents and his constituents

E:\CR\FM\A15JY8.002

E15JYPT1

 EXHIBIT 9

UNCLASSIFIED WITH
SECRET/NOFORN
ATTACHMENT

THE WHITE HOUSE
WASHINGTON

February 1, 2010

Dear Madam Speaker:
Thank you for the opportunity to brief Members of the House of
Representatives on January 13, 2010. During the briefing,
questions were raised by Representative Frank Wolf and others
relating to the closure of the detention facilities at
Guantanamo Bay and the Administration's counterterrorism efforts
in Yemen. Therefore, I would like to take this opportunity to
address these issues in greater detail.
The professional assessment of our military commanders and
civilian leaders at the Department of Defense is that closing
the detention facilities at Guantanamo is a national security
imperative in the war against al-Qa'ida. Secretary Gates,
Admiral Mullen, and General Petraeus have all stated that
closing Guantanamo will help our troops by eliminating a potent
recruiting tool. All three officials prosecuted this war under
the previous Administration and continue to do so today.
With respect to detainees transferred abroad, this
Administration has instituted the most robust review process
ever applied to detainees at Guantanamo, including halting the
"stove-piping" of classified information and requiring unanimous
interagency decisions prior to every transfer.
On January 22,
2009, the President signed Executive Order 13492, directing the
consolidation of information from all agencies relating to
Guantanamo detainees. As a result, Federal agencies for the
first time have unprecedented access to a wide range of
classified information collected from across the government.
The Executive Order also directed a comprehensive interagency
review of all individuals at Guantanamo. To implement this
directive, a task force was established with more than 60 career

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2

prosecutors, agents, analysts, and attorneys from across the
government, including civilian, military, and intelligence
officials. Every decision to transfer a detainee to a foreign
country during this Administration has been made unanimously by
all agencies involved with the review process after a full
assessment of intelligence and threat information. This
includes the Department of Defense, the Joint Chiefs of Staff,
and the Office of the Director of National Intelligence, as well
as the Departments of State, Justice, and Homeland Security.
A critical factor in considering the transfer of detainees
abroad relates to security conditions in the receiving country.
The situation in Yemen presents significant challenges in this
respect, and as a result, we have been deliberate about
transferring detainees there. The previous Administration
transferred 13 detainees to Yemen, and this Administration has
repatriated seven to date. Although more than 90 Yemeni
detainees remain at Guantanamo, the Administration temporarily
suspended repatriations to Yemen earlier this month because of
the specific security conditions and threat environment in that
country.
During the briefing on January 13, Representative Wolf made
allegations that one detainee repatriated to Yemen had been
involved in weapons of mass destruction. As it has done in
every case, the task force thoroughly reviewed all information
available to the government about this individual and concluded
that there is no basis for the assertions Representative Wolf
made during this session.
I am attaching a classified addendum
to this letter that addresses these concerns directly.
We believe that significant improvements to the detainee review
process have contributed to significant improvements in the
results. According to the most recent report to Congress
pursuant to section 319 of the Supplemental Appropriations Act
of 2009, the Intelligence Community assesses that 20 percent of
detainees transferred from Guantanamo are confirmed or suspected
of recidivist activity. This figure includes 9.6 percent of
detainees who are confirmed recidivists and 10.4 percent of
detainees who the Intelligence Community suspects, but is not
certain, may have engaged in recidivist activities.
I want to
underscore the fact that :all of these cases relate to detainees
released during the previous Administration and under the prior
detainee review process. The report indicates no confirmed or
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3

suspected recidivists among detainees transferred during this
Administration, although we recognize the ongoing risk that
detainees could engage in such activity.
The Administration has worked aggressively since President
Obama's inauguration to fully support Yemeni stability.
Although previous punitive policies left Yemen with little U.S.
financial and military support, this Administration is
attempting to correct this problem by significantly increasing
our financial and military support to the Government of Yemen.
In addition to assisting Yemen in countering al-Qa'ida in the
Arabian Peninsula, we are examining political and fiscal reforms
to improve the security conditions in Yemen and ensure that
gains are lasting.
These issues are among the most challenging we face as a nation,
and the Administration is committed to executing a careful and
comprehensive approach that promotes the national security of
the United States.
I would appreciate your assistance in making
the contents of this letter available to any Members who have an
interest.
Sincerely,

ol~e~
Assistant to the President for
Homeland Security and Counterterrorism

The Honorable Nancy Pelosi
Speaker of the
House of Representative
Washington, D.C.
20515-0508

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 EXHIBIT 10

4/23/2017

United States Resettles Four Uighur Detainees from Guantanamo Bay to the Government of Bermuda   OPA   Department of Justice

JUSTICE NEWS
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE

Thursday, June 11, 2009

United States Resettles Four Uighur Detainees from Guantanamo Bay to the
Government of Bermuda
Four detainees, Chinese nationals of Uighur ethnicity who had been held at the Guantanamo Bay detention facility,
have been resettled in Bermuda. These detainees, who were subject to release as a result of court orders, had been
cleared for release by the prior administration, which determined they would no longer treat them as enemy
combatants. The detainees were again cleared for release this year after review by the interagency Guantanamo
Review Task Force.  
As directed by the President’s January 22, 2009, Executive Order, the interagency Guantanamo Review Task Force
conducted a comprehensive review of the four, including a threat evaluation, and approved them for resettlement. The
detainees left Guantanamo Bay today pursuant to an arrangement between the United States and the Government of
Bermuda. 
The Uighurs are a Turkic Muslim minority from the Xinjiang province of far­west China. The Uighurs currently at
Guantanamo Bay left China and made their way to Afghanistan, where most eventually settled in a camp with other
Uighurs opposed to the Chinese government. After the United States conducted aerial strikes in the area in October
2001, the Uighurs from that camp fled to Pakistan and were later apprehended. According to available information,
these individuals did not travel to Afghanistan with the intent to take any hostile action against the United States.
This marks the first time since 2006 that the U.S. government has successfully resettled any of the Guantanamo
Uighur population. In 2006, five Uighurs were transferred to Albania; there have been no reports of post­resettlement
engagement in criminal behavior or terrorist activities.
"By helping accomplish the President’s objective of closing Guantanamo, the transfer of these detainees will make
America safer," said Attorney General Eric Holder. "We are extremely grateful to the government of Bermuda for its
assistance in the successful resettlement of these four detainees, and we commend the leadership they have
demonstrated on this important issue." 
Since 2002, more than 540 detainees have departed Guantanamo for other countries including Albania, Algeria,
Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Denmark, Egypt, France, Great Britain, Iran, Iraq, Jordan,
Kazakhstan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Sudan,
Tajikistan, Turkey, Uganda, United Kingdom and Yemen.
09­574
Office of the Attorney General
Updated September 15, 2014

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1/1

 EXHIBIT 11

4/23/2017

United States Transfers 12 Guantanamo Bay Detainees to Afghanistan, Yemen and the Somaliland Region   OPA   Department of Justice

JUSTICE NEWS
Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE

Sunday, December 20, 2009

United States Transfers 12 Guantanamo Bay Detainees to Afghanistan, Yemen
and the Somaliland Region
Twelve detainees have been transferred from the detention facility at Guantanamo Bay to Afghanistan, Yemen and the
Somaliland region.
As directed by the President’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force
conducted a comprehensive review of each of these cases. As a result of that review, which examined a number of
factors, including potential threat, mitigation measures and the likelihood of success in habeas litigation, the detainees
were approved for transfer. In accordance with Congressionally­mandated reporting requirements, the Administration
informed Congress of its intent to transfer the detainees at least 15 days before their transfer.
Over the weekend, four Afghan detainees, Abdul Hafiz, Sharifullah, Mohamed Rahim and Mohammed Hashim, were
transferred to the Government of Afghanistan. In addition, two Somali detainees, Mohammed Soliman Barre and
Ismael Arale, were transferred to regional authorities in Somaliland. Finally, six Yemeni detainees, Jamal Muhammad
Alawi Mari, Farouq Ali Ahmed, Ayman Saeed Abdullah Batarfi, Muhammaed Yasir Ahmed Taher, Fayad Yahya Ahmed
al Rami and Riyad Atiq Ali Abdu al Haf, were transferred to the Government of Yemen.
These transfers were carried out under individual arrangements between the United States and relevant foreign
authorities to ensure the transfers took place under appropriate security measures. Consultations with foreign
authorities regarding these individuals will continue.
Since 2002, more than 560 detainees have departed Guantanamo Bay for other destinations, including Albania,
Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Bermuda, Chad, Denmark, Egypt, France, Hungary
Iran, Iraq, Ireland, Italy, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Palau, Portugal, Russia,
Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom and Yemen.
09­1369
Office of the Attorney General
Updated September 15, 2014

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 EXHIBIT 12

Page 1

43 of 51 DOCUMENTS

Copyright 2010 Federal Information and News Dispatch, Inc.
Justice Department Documents and Publications
January 21, 2010
SECTION: JUSTICE DEPARTMENT PRESS RELEASES
LENGTH: 346 words
HEADLINE: UNITED STATES TRANSFERS TWO GUANTANAMO BAY DETAINEES TO ALGERIA
BODY:
THURSDAY, JANUARY 21, 2010
UNITED STATES TRANSFERS TWO GUANTANAMO BAY DETAINEES TO ALGERIA
WASHINGTON -- The Department of Justice today announced that two Algerian detainees, Hasan Zemiri and
Adil Hadi al Jazairi Bin Hamlili, have been transferred from the detention facility at Guantanamo Bay to the custody
and control of the Government of Algeria.
As directed by the President's Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force
conducted a comprehensive review of these cases. As a result of that review, which examined a number of factors,
including the potential threat posed by each individual and the receiving country's demonstrated capabilities to mitigate
potential threats posed by the individuals in their home country, each detainee was approved for transfer. The transfers
were approved by unanimous consent among all the agencies involved in the review -- including the Office of the
Director of National Intelligence, the Joint Chiefs of Staff, as well as the Departments of Defense, State, Justice and
Homeland Security.
In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its
intent to transfer these detainees at least 15 days before their transfer. These transfers were carried out under an
arrangement between the United States and the Government of Algeria. The United States coordinated with the
Government of Algeria to ensure the transfers took place under appropriate security measures.
Since 2002, more than 570 detainees have departed Guantanamo Bay for other destinations, including Albania,
Algeria, Afghanistan, Australia, Bangladesh, Bahrain, Belgium, Bermuda, Chad, Denmark, Egypt, France, Hungary,
Iran, Iraq, Ireland, Italy, Jordan, Kuwait, Libya, Maldives, Mauritania, Morocco, Pakistan, Palau, Portugal, Russia,
Saudi Arabia, Somalia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom and Yemen.
Eight detainees were transferred from Guantanamo Bay to Algeria under the previous Administration. Today, 196
detainees remain at Guantanamo Bay.

 Page 2
UNITED STATES TRANSFERS TWO GUANTANAMO BAY DETAINEES TO ALGERIA Justice Department
Documents and Publications January 21, 2010
###
10-057
LOAD-DATE: January 22, 2010

 EXHIBIT 13

S. HRG. 112–308

NOMINATION OF MATTHEW G. OLSEN TO BE
DIRECTOR, NATIONAL COUNTERTERRORISM
CENTER

HEARING
BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE
OF THE

UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION

TUESDAY, JULY 26, 2011

Printed for the use of the Select Committee on Intelligence

(
Available via the World Wide Web: http://www.fdsys.gov

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON

72–744 PDF

:

2012

For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800
Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

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DPROCT

 SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
DIANNE FEINSTEIN, California, Chairman
SAXBY CHAMBLISS, Georgia, Vice Chairman
JOHN D. ROCKEFELLER IV, West Virginia OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon
RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland
JAMES E. RISCH, Idaho
BILL NELSON, Florida
DANIEL COATS, Indiana
KENT CONRAD, North Dakota
ROY BLUNT, Missouri
MARK UDALL, Colorado
MARCO RUBIO, Florida
MARK WARNER, Virginia
HARRY REID, Nevada, Ex Officio
MITCH MCCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN MCCAIN, Arizona, Ex Officio

DAVID GRANNIS, Staff Director
MARTHA SCOTT POINDEXTER, Minority Staff Director
KATHLEEN P. MCGHEE, Chief Clerk

(II)

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DPROCT

 CONTENTS
JULY 26, 2011
OPENING STATEMENTS
Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California ..................
Chambliss, Hon. Saxby, Vice Chairman, a U.S. Senator from Georgia ..............
Conrad, Hon. Kent, a U.S. Senator from North Dakota ......................................

1
3
5

WITNESS
Olsen, Matthew G., Director-Designate, National Counter-Terrorism Center ...
Prepared statement ..........................................................................................

6
9

SUPPLEMENTAL MATERIAL
Letter Dated July 22, 2011, from William Lynn to Senator Dianne Feinstein ..
Letter Dated July 22, 2011, from Keith Alexander to Senator Dianne Feinstein .......................................................................................................................
Letter Dated July 20, 2011, from Mike McConnell to Senators Dianne Feinstein and Saxby Chambliss .................................................................................
Letter Dated July 20, 2011, from Michael Mukasey to Senator Dianne Feinstein .......................................................................................................................
Letter Dated July 14, 2011, from David S. Kris to Senators Dianne Feinstein
and Saxby Chambliss ...........................................................................................
Letter Dated July 15, 2011, from Michael Leiter to Senators Dianne Feinstein
and Saxby Chambliss ...........................................................................................
Letter Dated July 21, 2011, from Kenneth Wainstein to Senators Dianne
Feinstein and Saxby Chambliss ..........................................................................
Letter Dated July 22, 2011, from Timothy J. Heaphy to Senators Dianne
Feinstein and Saxby Chambliss ..........................................................................
Letter Dated July 25, 2011, from J. Patrick Rowan to Senators Dianne
Feinstein and Saxby Chambliss ..........................................................................
Letter Dated July 25, 2011, from Matthew W. Friedrich to Senators Dianne
Feinstein and Saxby Chambliss ..........................................................................
Letter Dated July 14, 2011, from Frank R. Wolf to Senator Dianne Feinstein .
Letter Dated July 21, 2011, from Frank R. Wolf to Senator Dianne Feinstein .
Letter Dated July 22, 2010, from Ronald Weich to Senators Dianne Feinstein
and Saxby Chambliss ...........................................................................................
Questionnaire for Completion by Presidential Nominees ....................................
Additional Prehearing Questions ...........................................................................
Letter from Don W. Fox, Office of Government Ethics, Dated July 11, 2011,
to Senator Dianne Feinstein Transmitting Public Financial Disclosure Report ........................................................................................................................

(III)

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DPROCT

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DPROCT

 NOMINATION OF MATTHEW G. OLSEN TO BE
DIRECTOR, NATIONAL COUNTERTERRORISM
CENTER
TUESDAY, JULY 26, 2011

SELECT COMMITTEE

U.S. SENATE,
ON INTELLIGENCE,

Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in Room
SD–562, Dirksen Senate Office Building, the Honorable Dianne
Feinstein (Chairman of the Committee) presiding.
Committee Members Present: Senators Feinstein, Wyden, Mikulski, Conrad, Udall of Colorado, Warner, Chambliss, Snowe, and
Coats.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
CHAIRMAN, A U.S. SENATOR FROM CALIFORNIA

Chairman FEINSTEIN. The hearing will come to order.
The process will be as follows: I will make some remarks. The
Vice Chairman will make some remarks. We will then call on the
distinguished Senator from North Dakota for remarks. And then
we will proceed. I trust that is agreeable with everybody.
The Committee meets today to consider the President’s nomination of Matt Olsen to be the Director of the National Counterterrorism Center.
Mr. Olsen is currently the general counsel of the National Security Agency, and he’s held a number of senior positions in the Department of Justice, including the National Security Division and
the Federal Bureau of Investigation.
Mr. Olsen has appeared as a witness before this Committee previously, and he has frequently briefed members and staff over the
last several years. I’d like to welcome him back to this Committee.
I’d like to begin today by discussing the current terrorist threat
and the role of what we call NCTC, which Mr. Olsen will be leading, if confirmed.
The NCTC is the central agency within the United States government dealing with the identification, prevention, disruption and
analysis of terrorist threats. It’s very important. While it’s best
known for its role in consolidating and analyzing terrorism-related
intelligence, it also plays an important role in conducting strategic
planning for counterterrorism actions across our government.
The NCTC grew significantly in size, capability and maturity
under the previous Director, Michael Leiter. Its successes and
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those of the broader counterterrorism community include numerous
terrorist plots that were thwarted, both here at home and abroad.
NCTC has also achieved less noticed but equally important advances in the sharing of threat information across the intelligence
community—a streamlining, if you will, of intelligence, an improved watch-listing capability, and greatly improved analytic capability.
Despite improvements and reforms, especially in response to the
findings and recommendations of this Committee and others after
the Christmas Day attempted attack by Umar Farouk
Abdulmutallab, I’m still very concerned about the possibility of terrorist attacks against the United States. I believe this is a very
critical time.
The period leading up to the 10th anniversary of 9/11 is a period
of heightened threat. Despite counterterrorism pressure against alQa’ida in Pakistan, including the successful strike against Usama
bin Ladin in Abbottabad, the group remains dangerous and vengeful.
At the same time, the threat from al-Qa’ida’s affiliates and adherents around the world has increased and presents particular
challenges. I’m especially concerned about the threat to the United
States homeland from al-Qa’ida in the Arabian Peninsula—AQAP,
we call it—as well as threats emanating from terrorist safe havens
in Somalia and elsewhere.
This means, at least to me, that this is a crucial time for our
counterterrorism establishment to be at full strength and not to be
leaderless. NCTC is a linchpin of this establishment. So I’m very
pleased that the President has moved quickly to nominate Mr.
Olsen, an individual serving in a senior intelligence community position today, to take the helm of this organization.
Let me take just a moment to read the first paragraph from a
letter of support for Mr. Olsen’s nomination, written by General
Keith Alexander, the Director of the National Security Agency.
‘‘I am writing to wholeheartedly endorse the nomination of Matthew G. Olsen to be the next Director of the NCTC. Matt has
served as the National Security Agency’s general counsel for the
past year and has shown true leadership, outstanding judgment
and decisionmaking ability. He’s been a key part of the agency’s efforts to provide intelligence that allows our government to counter
terrorist threats. In my opinion, Matt is superbly qualified to hold
this critical intelligence community position.’’
Before his current position at NSA, Mr. Olsen served in the Department of Justice for 18 years, including 12 years as a federal
prosecutor. In a letter of support for Mr. Olsen’s nomination,
former Attorney General Michael Mukasey wrote of Mr. Olsen, ‘‘He
was not only an excellent lawyer and manager, but also an exemplary person in dealing with his colleagues. Matt has, in abundance, every personal and professional quality and skill you could
hope to find in a nominee to head the NCTC. His nomination has
my unqualified support.’’
And finally, there is a letter from Mike McConnell in which he
also offers his strongest possible support. ‘‘As a 44-year veteran
serving the nation as a member of the intelligence community, I
had many opportunities to work with professionals of the Depart-

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ment of Justice. This was particularly true when serving as the Director of the National Security Agency and as the Director of National Intelligence. During those years of service, I never met or
served with a more accomplished or dedicated professional than
Matt Olsen. He understands the IC, its processes and procedures,
and has served with distinction.’’
Well, I can go on and on, and I have many more pages here. I’m
not going to do it. Suffice it to say that I believe that we have an
extraordinarily qualified professional which can step into the leadership of NCTC and, at this very potentially vulnerable period, provide it with the leadership it really does deserve and merit.
So, with that, Mr. Vice Chairman, may I ask you to make your
remarks? Thank you.
OPENING STATEMENT OF HON. SAXBY CHAMBLISS, VICE
CHAIRMAN, A U.S. SENATOR FROM GEORGIA

Vice Chairman CHAMBLISS. Thank you very much, Madam Chair.
Mr. Olsen, congratulations on being nominated to be the Director
of the National Counterterrorism Center. Thank you for your service to this country, especially in some very demanding roles over
the last several years, and we also welcome your family and thank
them for their great support to you and thus to our country. So we
appreciate that very much.
I also want to just say a special word of thanks to Mike Leiter,
who you’re going to be succeeding. You and I talked about this the
other day. You and Mike are good friends. You know the kind of
leadership he’s provided in some very difficult circumstances. And
while we’ve still had some growing pains at NCTC, Mike has
brought us through some very tough times and I think has kind
of righted the ship at times when it headed in a wrong direction.
And I’m very appreciative of Mike’s service and of his leadership.
Mr. Olsen, your nomination comes at a critical point in our history in our fight against terrorism. While we’ve made considerable
progress against al-Qa’ida in the FATA, we face growing threats as
al-Qa’ida continues to spread.
In my view, AQAP in Yemen poses the biggest threat to our safety and I urge you to make dismantling that group your primary
focus before they strike us successfully here at home.
This past spring brought immense changes to the Middle East,
but it remains unclear what effect this may have on our long-term
counterterrorism efforts. This uncertainty is further complicated by
our own current fiscal condition, where resource constraints will
undoubtedly impact our national defense and counterterrorism enterprise.
Amid these new threats it is critical to our national security that
the NCTC fully perform its mission. You and I have talked about
some of the failings leading up to the Christmas Day bombing attempt, especially NCTC’s inability to connect the dots. While there
has been much progress, a lot of work remains, including on information-sharing and detainee and data retention.
Whether it is an attack or an imminent threat like 12–25 or
Times Square, you will often be the first point of contact with this
Committee. We will expect your unvarnished analytic judgments,
the facts and frank assessments. In the past, efforts to control the

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message for political purposes have resulted in Congress being
given little or inaccurate information. That’s not pointing a finger
at this administration; it’s happened in other administrations. As
the NCTC Director, you will be expected to be forthright with this
Committee and to push back on any effort to keep information from
us.
Along these same lines, I have shared with you some of my concerns about the recommendations made by the Guantanamo Review Task Force, which you directed. It disturbs me that under
your leadership detainees were transferred or recommended for
transfer to Yemen throughout 2009, even as the intelligence community warned the administration about the security situation
there.
We already knew that former Gitmo detainees were in AQAP
leadership in Yemen, but it was only after AQAP’s failed Christmas
Day attack that the transfers stopped. In my mind this was an unacceptable risk for us to take. You mentioned in my office the pressure on the task force, in part because you were guided by the executive order on closing Gitmo. I suspect that the one-year deadline
for closing Gitmo affected task force analysis and decisions.
When the only original two options for each detainee were prosecution or transfer, it seems like there would have been significant
pressure to lean towards transfer. I wonder if this explains why,
after the initial task force review found 92 detainees suitable for
transfer, a second review came up with 40 more transferable detainees and another 30 for conditional detention, which at the time
was essentially delayed transfer.
Congressman Frank Wolf of Virginia has expressed similar concerns about transfer decisions in a letter to the Committee, and
some of the interactions that he had with you regarding the potential transfer of Uighurs into the United States. I am concerned that
a member of Congress thinks he has been misled so I think it
would be helpful if you explained your interactions with Congressman Wolf, and you and I have talked about this and I want to give
you the full opportunity to do that this morning.
But I urge you to be as forthcoming and direct about this, including information provided to or withheld from Congress on this
issue. Ironically, in your new position one of your jobs will be tracking former detainees who have re-engaged, including some recommended for transfer by the task force. I urge you to take a fresh
look at any intelligence on Gitmo detainees.
Given the threat from AQAP and a recidivism rate now over 26
percent, we are in no position to let any more dangerous detainees
go. Unfortunately, the drive to close Gitmo has had the immediate
and negative impact of leaving us with few options to detain terrorists outside of Afghanistan. As we draw down in Afghanistan, we
will even lose that option.
I’m sure you have seen press stories noting that the United
States may be killing terrorists but we are not trying very hard to
capture them, mostly because Gitmo has been taken off the table.
Yet capturing and interrogating terrorists remains one of the best
ways to get actionable intelligence and to prevent future threats.
Again, Mr. Olsen, I congratulate you on your nomination and
these issues need to be laid on the table and need to be fleshed out

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because the direct point of contact with this Committee is going to
be you in so many instances, and we need to certainly have that
feeling of trust that we have developed and need to develop stronger over the coming years while you’re in this position.
So thank you, Madam Chair.
Chairman FEINSTEIN. Thank you very much, Mr. Vice Chairman.
And now I’d like to recognize the distinguished Senator from North
Dakota, the Chairman of our Budget Committee on the Democratic
side, Kent Conrad. Mr. Chairman, welcome.
STATEMENT OF THE HONORABLE KENT CONRAD, A U.S.
SENATOR FROM NORTH DAKOTA

Senator CONRAD. I thank you, Chairman Feinstein. Thank you,
Vice Chairman Chambliss. Senator Coats, good to see you, and
Senator Wyden. Senator Udall, Senator Warner.
I am delighted to be able to introduce Matt Olsen. His parents
are from North Dakota, people I’ve known a very long time. Matt’s
roots are deep in North Dakota. He returns there every chance he
gets with his family, his wife, Fern, and his children, Ellie, Nate
and Will. His sister Susan is with us as well.
As I said, I’ve known this family for a very long time, and they
are the best that it gets. His father was the chief of staff to the
man that I defeated for the United States Senate—and so I know
how good he really is. Van passed away three years ago, but I
know he’s looking down with a twinkle in his eye today, proud of
Matt and all that he has accomplished.
You know, after defeating Van’s boss for the United States Senate, I came here with some trepidation of what my relationship
might be like with Van and his wife Myrna. They treated me with
the greatest courtesy and over time became very good friends—the
highest quality people that our state has to offer, and I believe the
highest quality of people in the country. These are Americans
through and through.
Matt, your father would be so proud of you at this moment. I
know he’d be looking down and saying, the boy’s done good. And
indeed you have. You’ve served your country with distinction at the
Justice Department, the FBI and the National Security Agency,
where you’re currently the general counsel. Your public service has
spanned three presidential administrations. That’s a notable and
impressive accomplishment and it speaks volumes about your competency and your professionalism.
Colleagues, Matt has already accomplished so much, and now the
President has asked him to assume one of the most important and
demanding jobs in the intelligence community, the Director of the
National Counterterrorism Center. We all know that the NCTC’s
mission is vital to combat terrorism at home and abroad by analyzing the threat, sharing the information with our partners and
integrating all instruments of national power to ensure unity of effort. There is no doubt in my mind that Matt has the experience
and the character to lead the NCTC.
But don’t just take my word for it. Admiral Mike McConnell
served as Director of National Intelligence in President Bush’s administration, and as Director of the NSA in the Clinton administration.

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Here’s what Admiral McConnell had to say about Matt. ‘‘Having
known and worked with Mr. Olsen for over four years, I have observed him to be the utmost professional, dedicated to the security
of the nation. He understands the intelligence community and the
law and processes needed to keep us safe. He has great respect for
the law, our values and the activities needed to ensure the safety
of the nation. I have every confidence that, if confirmed, Mr. Olsen
will serve the nation, the Congress, the administration and the intelligence community at the highest level of service and performance.’’
Colleagues, Matt is smart. He is honest and he is a true professional and an absolute patriot. I can’t put it much better than Admiral McConnell did. I hope very much that this Committee will
move quickly on his confirmation and that our colleagues in the
Senate will follow suit. It is really my honor to be here with Matt
Olsen.
Chairman FEINSTEIN. Thank you very much, Mr. Chairman. Appreciate the remarks. I know you have a busy day. Much is happening, so you feel free to stay or leave, whichever you wish.
Senator CONRAD. I’ll join you.
Chairman FEINSTEIN. Thank you. Thank you very much.
Mr. Olsen, we will now turn to you. I was going to introduce your
family. Senator Conrad did to some extent, but perhaps you’d go
a little further and even ask them to stand up.
STATEMENT OF MATTHEW G. OLSEN, DIRECTOR-DESIGNATE,
NATIONAL COUNTERTERRORISM CENTER

Mr. OLSEN. Thank you. Thank you very much, Madam Chairman, and thank you very much, Vice Chairman Chambliss.
I want to thank the entire Committee for taking the time to consider my nomination this morning. I especially want to thank Senator Conrad for that very warm and personal introduction. I really
appreciate that.
And I am grateful to the many members of the Committee that
have had the opportunity over the last two weeks to meet and have
conversations with. I really appreciate the thoughtful consideration
that the Committee is giving to my nomination.
At the outset, I want to thank the President for having the confidence to nominate me for this position and the Director of National Intelligence for supporting me. I am tremendously honored
and humbled to be considered for this position.
Let me also, if I may, take a moment to express my condolences
to the people of Norway in the aftermath of the tragic attacks in
Oslo last week. My grandfather emigrated to North Dakota from
Norway at the age of 16. I have extended family that was in Oslo.
I think that these heartbreaking events serve as a reminder to all
of us of the importance of working together as an international
community to prevent these sorts of acts of terror.
And I appreciate very much, Madam Chairman, the opportunity
to introduce my family. So I sit here today before you because of
the support of my family and my friends and my colleagues, many
of whom are here today. My wife, Fern, is directly behind me. My
children—my daughter Elizabeth, my oldest son Nate, my youngest
son, Will—are all here with me.

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I especially want to acknowledge my mother, Myrna, who is sitting here on the end; my father, Van, who was warmly remembered in Senator Conrad’s remarks. Along with their love and guidance, my parents, my mother and father, have provided my sisters
Susan and Jennifer with an example of how to live, I believe, with
honor and integrity and devotion to others, and I couldn’t be more
grateful for them being here today.
Madam Chairman and Vice Chairman Chambliss, members of
the Committee, today, as we approach the 10th anniversary of alQa’ida’s attacks on September 11th, it is appropriate to reflect on
that day, the day that our nation suffered the single most devastating attack in our nation’s history.
It was in the aftermath of that attack of that day that Congress
established the National Counterterrorism Center. NCTC is the
primary organization in the federal government for analyzing, integrating and sharing all-source intelligence information pertaining
to terrorism and counterterrorism. In my view, no other organization is as singularly focused on preventing acts of terrorism.
A decade after the September 11th attacks, we remain at war
with al-Qa’ida and its affiliates. Thanks to the leadership of this
Committee and to Congress, and thanks to the work of thousands
of dedicated men and women in the intelligence community, including, as well, our men and women in uniform across the globe, alQa’ida is weakened.
At the same time, al-Qa’ida and its adherents around the world,
as well as other terrorist organizations, continue to pose a very significant threat to our country. Confronting this threat and working
with focus and resolve to prevent a terrorist attack is NCTC’s mission, first and foremost.
And to fulfill this solemn responsibility, NCTC brings together a
wide array of dedicated and talented professionals. This diverse
workforce is, in my view, NCTC’s greatest asset.
In addition, NCTC embodies the principle that we all must serve
as one team to protect the nation. We must work collaboratively
and we must use every element of our national power to bring relentless and focused pressure against al-Qa’ida and its adherents,
as well as other terrorist networks around the globe.
I’ve been privileged to serve—as a number of comments that
were made this morning—in leadership positions dedicated to national security during my almost 20 years of career government
service.
As the general counsel of the National Security Agency, I’ve guided it and supported NSA’s intelligence operations and I’ve ensured
that the agency’s activities adhere to the Constitution and the laws
that govern its activities and that protect civil liberties and privacy
of Americans.
At the FBI, I was privileged to serve as counsel to Director
Mueller, and in that role I was able to contribute to the transformation of the FBI into a world-class intelligence organization focused on preventing and disrupting potential terrorist plots.
As a career official of the Department of Justice, working closely
with this Committee and with Congress, I helped stand up the new
National Security Division at Justice, and I managed the imple-

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mentation of the landmark changes to the Foreign Intelligence Surveillance Act that Congress passed in 2008.
I also supervised the Guantanamo Review Task Force, bringing
together national security professionals from across the government to compile and analyze intelligence information on detainees.
And, finally, I served for about 10 years in the District of Columbia as a federal prosecutor. In that role I learned the value of working as a team with investigators and operators, and I learned the
fundamental importance of finding and following the facts wherever they lead.
If I am honored to be confirmed to this position, I can assure you
that I am committed to forging a strong and cooperative relationship with Congress. I believe, based on years of experience as a career government official, that congressional oversight is essential to
NCTC and the effective conduct of intelligence activities.
Members of Congress and particularly members of this Committee bring a vital perspective to the difficult issues that the intelligence community faces. The role of Congress is critical to building
the trust of the American people in NCTC and in the intelligence
community. And if confirmed, I commit to providing full and timely
communication and transparency with the Congressional oversight
Committees.
NCTC’s fundamental mission is to protect the nation from a terrorist attack. We must pursue this mission with vigilance and resolve. If confirmed, I pledge to do my very best to earn your trust
and to give this effort my all.
Madam Chairman, Vice Chairman, thank you very much for the
honor of appearing before you.
[The prepared statement of Mr. Olsen follows:]

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 73
Chairman FEINSTEIN. A housekeeping duty, if I may. If you
would answer the following questions yes or no, please: Do you
agree to appear before the Committee here or in other venues when
invited?
Mr. OLSEN. Yes.
Chairman FEINSTEIN. Do you agree to send officials from the
NCTC and designated staff when invited?
Mr. OLSEN. Yes.
Chairman FEINSTEIN. Do you agree to provide documents or any
other materials requested by the Committee in order for it to carry
out its oversight and legislative responsibilities?
Mr. OLSEN. Yes.
Chairman FEINSTEIN. Will you ensure that the National Counterterrorism Center and its officials provide such material to the Committee when requested?
Mr. OLSEN. Yes.
Chairman FEINSTEIN. Do you agree to inform and fully brief, to
the fullest extent possible, all members of this Committee of intelligence actions and covert actions rather than only the Chairman
and Vice Chairman?
Mr. OLSEN. Yes.
Chairman FEINSTEIN. Thank you very much.
Mr. Olsen, the ranking member brought up the questions that
have been raised by a Member of Congress. We discussed them in
our meeting. And in your prepared testimony, on page five, you discuss them as well.
You indicate that in April of ’09 you were part of a team of officials who provided a briefing about the initial stages of the process
of reviewing detainees. And you were authorized during the briefing to discuss the review process. You were not authorized to discuss deliberations or decisions on specific detainees.
And so, in accordance with those rules, you state, on page five,
‘‘We provided a full and candid briefing about the detainee review
process.’’ So I would like you to address this issue—you have read
Congressman Wolf’s letter—and address it head on, if you will, for
this Committee.
Mr. OLSEN. Yes. Thank you very much, Madam Chairman, and,
as well, Vice Chairman Chambliss, for providing me with the opportunity to address those questions that were raised.
Let me just say at the outset that there were essentially, as I understand from Congressman Wolf’s letter, two questions or concerns.
One was that we altered threat information—that that information was altered in the course of the task force review and that
there was intentional misleading of him during a briefing. And I
will say, just at the outset, that neither one of those things occurred. And I appreciate the opportunity to provide additional explanation of that.
First, the question of whether or not threat information was
changed or altered over the course of the task force review—the job
that I had as the executive Director of the Guantanamo review
task force in 2009 was to bring together career professionals and
compile all of the information that had been obtained over the
course of several years about each detainee—something that hadn’t

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been done before—and to bring that information together in one
place and to give that information a fresh and independent and objective review.
We took that information and under my leadership, and under
guidelines that we adopted as part of an interagency effort, we
looked at that information. It was my responsibility to ensure that
that was done in an impartial and unbiased way, that all the information was reviewed, that it was done with an interagency approach, that every dissenting or disparate opinion or view was fully
aired.
And then we took that information and presented it to a group
of senior-level decisionmakers, along with our recommendations.
And then the decisions were made based on that information by a
senior-level group or review panel from six different agencies. The
result of that work over the course of a year was that all 240 detainees were given a disposition, and in every single case, every detainee was determined on a unanimous basis on what the appropriate status was of that detainee.
There was never, at any time, any effort to change threat information, to hide from any fact. The explicit guidance—my particular
responsibility, I believed, was to follow every fact and be as precise
and specific and rigorous in analyzing those facts and then presenting that information to the policy-level decisionmakers.
There were occasions when we looked at facts and looked at
them differently than prior assessments had done. In particular,
JTF–GTMO—joint task force at Gitmo—had prepared assessments.
We looked at those. Those were all part of our information. And in
many cases—most cases, I believe—we agreed with those assessments. But there were instances when we looked at those facts and
came to different conclusions. But there was never, on any occasion, an effort to change, alter or hide from those facts. Those were
all fully aired.
On the second question, if I may—the question of whether or not
I intentionally misled Congressman Wolf in a briefing—again, I did
not. We met in April of 2009, in his office. I was part of a team
from the Department of Justice and the White House that went to
brief Congressman Wolf on not just the Guantanamo review task
force but all three of the task forces that were set up under the
three executive orders issued by President Obama in January of
2009.
This was at the very early stages of our review process. We had
really just begun the effort to review the first set of detainees. And
it was made clear to Congressman Wolf before that briefing and
during that briefing that the ground rules would be that we could
discuss the process that we were undertaking to conduct that review, but that we were not authorized to discuss any particular decisions or any specific detainees.
We did, in fact, lay out the process for him, and I understand
that now he has expressed concern that he was not given full information about the actual decisionmaking status with respect to the
group of detainees known as the Uighurs, the Chinese Uighurs,
who were at Guantanamo. I did not discuss, because I was not authorized to discuss or make a unilateral decision as a career De-

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partment of Justice official, what the status was of that decisionmaking process.
I certainly—as I’ve said to Congressman Wolf in a conversation
I had with him on the telephone a few months ago, I understand
his frustration and I very much, very much regret that he has the
view that I intentionally misled him. And I do hope that if I’m confirmed, I would have the opportunity to regain his trust and work
with him in a collaborative and cooperative way, moving forward.
I will say that as a general matter I have been candid, honest
and direct in all of my interactions with Congress. I have met
many times with staff and Members, particularly of this Committee, over the course of my career as a career government official, not only on the Guantanamo review but also on the FISA
Amendments Act and other matters.
And I have taken it as a matter of pride and a deeply held view
that I have been honest and candid and direct on all occasions. And
as I said, I do hope I have the opportunity to regain the trust of
Congressman Wolf and work with him.
Chairman FEINSTEIN. Thank you very much. Mr. Vice Chairman.
Vice Chairman CHAMBLISS. Thanks, Madam Chair.
Mr. Olsen, let me carry that question one step further because,
obviously, it’s a very, very serious issue when you have a member
of Congress who thinks he’s been misled. So I want you to have full
opportunity to explain it. And I want to quote to you what Congressman Wolf’s recollection of the scenario was. In the memorandum that he prepared within the last couple of weeks that I
know you’ve had the opportunity to look at, here’s what he says:
He said, ‘‘It has recently come to my attention that I was misled
about the status of the transfer of the Uighur detainees in April,
2009. This information confirms the Newsweek report that career
federal employees were explicitly directed to hide this information
from Members of Congress, especially Republican Members. During
an April 22nd, 2009, meeting in my office with members of the
Guantanamo Bay detainee review task force, including Mr. Olsen,
I inquired about the status of the potential transfer of Uighur detainees to the United States.’’
‘‘Mr. Olsen indicated that a decision had not yet been reached on
the transfer of the detainees. None of the other career or political
officials in the meeting countered Mr. Olsen’s assertion. That is
why I was deeply concerned to learn, in an April, 2011, Washington
Post article, that the final decision on the transfer of the Uighur
detainees had been made during a White House meeting eight days
before my meeting with Mr. Olsen.
‘‘According to the Washington Post article, the first concrete step
toward closing the detention center was agreed upon during an
April 14, 2009, session at the White House. It was to be a stealth
move. ‘They were going to show up here and we were going to announce it,’ said one senior official describing the swift, secretive operation that was designed by the administration to preempt any
political outcry that could prevent the transfer.’ ’’
Mr. Wolf goes on, ‘‘Following the publication of this article in
April, I personally called Mr. Olsen to ask whether he was aware
at the time of my meeting with him on April 22nd, 2009, that a
decision had already been made on the transfer of the detainees.

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tivity in the Gulf we are seeing, in effect, Kuwait become more permissive—significantly more permissive.
Do you have an opinion on this yet?
Mr. OLSEN. My answer, Senator, if I may, is somewhat general,
which—I would say that our relationships with countries such as
Kuwait, other Gulf states, certainly countries like Pakistan are
complex and have multiple dimensions. I do think that the counterterrorism effort is a central goal or central feature of those relationships. If I’m confirmed, I would look forward to the opportunity
in the role of NCTC Director to provide my objective and unvarnished view about the counterterrorism threat to contribute to the
overall discussion and development of a posture toward a country
like Kuwait.
Senator WYDEN. Thank you, Madam Chair.
Chairman FEINSTEIN. Thank you very much.
Mr. Vice Chairman, why don’t you go ahead, and I’ll finish up.
Vice Chairman CHAMBLISS. Sure. Mr. Olsen, I want to ask you,
on three or four different subjects here, to give us a general discussion and response to some questions that I’m going to lay out. But
I’m more interested in your general discussion on the issues. But
obviously I think the questions will throw out some ideas for you.
By December 2009, it had become clear that many transferred
Gitmo detainees had joined AQAP in Yemen. Additionally, the IC
and State Department took a dim view of the willingness or capability of the Yemeni government to monitor detainees. And I believe such assessments were made clear to the task force.
Yet in late 2009, the task force decided to transfer seven Yemeni
detainees back to Yemen, only one of whom was ordered released
by the court. And his case was not appealed. Now, my questions
are, in December 2009, did you personally believe it was a good
idea to transfer detainees to Yemen?
Secondly, you’ve told us before that you were trying to test the
system by sending the group of detainees back in December of
2009. Do you think testing the system when the result of a failed
test could be an attack on Americans was a good idea?
And lastly, in hindsight, in light of the fact that the government
is winning all of its habeas appeals, would you have changed any
of the task force transfer decisions? And do you think dangerous
detainees were transferred as a result of the task force process?
Mr. OLSEN. Senator, thank you. And I do very much understand,
of course, in our conversations—both my conversation with you as
well as the ongoing discussions I’ve had with members of the Committee staff—the substantial concern about the detainees from
Yemen and the transfer decisions that were made back in 2009. So
if I may give you a relatively general, longer answer, I appreciate
your indulgence.
The Yemen detainee population was a concern of the task force’s
from its onset. When we started this process under the President’s
executive order in February of 2009, there were 97 Yemeni detainees out of the 240 detainees at Guantanamo subject to the review.
So by far the single largest nationality represented at Guantanamo
were from Yemen. And this was a problem that existed before
2009. In other words, prior to 2009, government officials had strug-

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gled with how handle the disposition of this substantial number of
Yemen detainees.
Over the course of that year, through our task force effort, we
were very aware of a number of different factors. One, that the security situation in Yemen was continuing to deteriorate over the
course of that year, and by December of 2009 we were quite aware
of the concerns that the intelligence community and our military
leaders were expressing about Yemen.
We were also quite aware that our record of success in the habeas courts, that the number of Yemeni detainees as well as others
were challenging the lawfulness of their detention, and we were
being briefed by the Department of Justice about how those cases
were going. At one point in September of 2009, I recall that we
were approximately eight successful defenses versus 31 losses in
the federal courts. And there was a real concern being expressed
by the Department of Justice that not only were we losing these
cases, but we were losing our credibility generally in a way that
was affecting facts and legal rulings that might impact cases down
the road.
I think the other factor that was a significant one for us with respect to Yemen was that there were no options that appeared to
be available in terms of other countries willing to take detainees
from Yemen, not countries that had rehabilitation programs and
not countries in Europe that had been taking a number of detainees—I think over 50 over the course of the last couple years—who
had humane-treatment concerns about being repatriated to their
home country. So I know I’ve just laid out to you a problem that
you’re well familiar with. But those were the factors that were presented to us as we conducted this review.
Our job on the task force, I felt—and my responsibility as the executive Director—was to provide the best factual information in the
most precise, specific and rigorous way possible to decisionmakers.
We did that over the course of the review. The decision to send
seven detainees in December—now I know an eighth Yemeni detainee has been repatriated to Yemen—those decisions have all
been made at very senior levels, and all based on the unanimous
judgment of representatives of six different agencies, including the
Department of Defense, the intelligence community and the Joint
Chiefs of Staff. Two of those eight detainees were ordered released
by the court.
I think when I said in our conversation that the six or so that
went in December—if that number’s correct—or before, in the fall
of 2009—I don’t remember the exact timeframe—but the thought
there—and I was present for some of the discussions, although I
wasn’t a voting member or a decisionmaker—the thought was we
would never at any time send a significant number of Yemeni detainees back. The question was, could the Yemeni government and
security forces handle the security measures that would be necessary to ensure that those transfers were handled responsibly?
Our process had a very strict standard. No detainee would be eligible for transfer unless any threat that detainee posed could be
sufficiently mitigated through adequate and appropriate security
measures in the host country—in the destination country. That
standard never changed from the beginning to the end of our task

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force review. And that was a standard that the decisionmakers who
made that decision applied.
So if I may, in sum—I think those were very difficult decisions.
And I want to address your question before I forget. It is true I
cited the habeas record of eight and 31. We’ve done much better
from the executive branch’s point of view since that time. We’ve
had a number of successful litigation victories in the D.C. Circuit
Court of Appeals.
The question whether or not that would have changed our view
or the view of the decisionmakers on a particular detainee I think
is hard to answer, and somewhat speculative on my part. I do
think that it would have lowered the significance of that factor as
it pertained to a particular detainee. So it would have—you know,
I suppose I could say it’s possible that it may have affected a decision. But it would be speculative for me to say more about that.
Vice Chairman CHAMBLISS. You mentioned in my office with respect to the pressure on the task force that there was pressure in
part because the task force was guided by the executive order on
closing Gitmo. Can you explain now about how that pressure existed and what you did to try to make sure your decisions were not
influenced by it? How many attorneys assigned to the task force
had represented detainees before joining your staff? And did you
feel pressure from any of those attorneys, others in DOJ or other
parts of the administration to lean towards transferring as many
detainees as possible?
Mr. OLSEN. As I mentioned to you, Senator, in our meeting, it
certainly was the case that we had an executive order issued by the
President in January of 2009 and that we were duty bound to follow that executive order. That executive order set forth three potential options for each detainee: transfer, if such a transfer could
be accomplished consistent with the national security and foreign
policy interests of the United States. That was the first option. If
transfer was not available, prosecution, if feasible. And if neither
transfer nor prosecution was an appropriate option, then select another appropriate option, undefined in the executive order.
I wouldn’t necessarily say that that was pressure. That was guidance or direction from the President of the United States to follow
that. And I felt my obligation was to ensure that everything that
the task force did certainly followed that direction but did not respond to any of the what was obvious at the time, controversy from
both sides about Guantanamo. It’s been a subject of controversy for
many years.
I felt it was my obligation to insulate the career professionals
who worked on this review. Over the course of the year in 2009,
over a hundred people worked on this review from the Department
of Defense, from the intelligence community, CIA, NCTC, Homeland Security, State, Justice. And every single one of them was a
career individual.
In response to your question, I don’t believe that a single one of
the attorneys who worked on the review had ever played a role in
representing detainees. I know that’s been a subject of controversy
and been reported in the press in the past with respect to other Department of Justice attorneys. I don’t believe that anyone on our
task force had ever worked in that capacity.

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Again, everyone who worked on my review came from the career
ranks. As I said, I felt it was my responsibility to insulate that
group from any of the types of controversy surrounding Guantanamo. And I think, if I may, Senator, say the results of the review,
the recommendations and the analysis we did, resulting in unanimous decisions on 240 detainees, speak for themselves, I think, in
this regard.
Out of those 240 detainees, there were 126 transfer decisions.
But there were also 48 decisions to hold those detainees under the
laws of war. When we started the review in January of 2009, that
was not necessarily even considered an option. We pushed for that
as the right option for 48 detainees—that they could not be tried,
there was not evidence to try them. They could not be transferred
safely. They needed to be held indefinitely under the laws of war.
That’s 48 of those detainees; in addition, 36 detainees referred either to the military commission or to federal courts for prosecution,
36 in that category, and then 30 in the category Yemeni detainees
of conditional detention. Those 30 detainees, the decision was that
they would not be transferred. They would be detained until the security situation in Yemen substantially improved, something that
obviously has not happened. So they are effectively in the same category as the 48 held under the laws of war.
Vice Chairman CHAMBLISS. The Chairman and I are both very
concerned about the fact that we currently have no detention and
interrogation policy going forward with respect to individuals who
may be captured, high-value targets who may be captured outside
of Afghanistan.
As Director of NCTC, you will be integrally involved in the deliberations relative to any proposal for a long-term plan on detention
and interrogation. And my question to you is, are you prepared to
give sound advice, number one, that you’re going to be asked to
give?
And secondly, if the administration appears to be headed down
a road that you don’t think is the right direction to go, will you say
to this Committee now that you’re going to express yourself in a
very strong manner to help to try to develop the best possible policy for detention and interrogation of high-value targets, even
though your opinion may be contrary to the folks at the White
House who are nominating you today?
Mr. OLSEN. Yes, absolutely. And if I may, I do make that pledge.
I think, in my prior positions, I have taken that position. In other
words, I have given advice in an unvarnished, objective, independent way. As a career government official, I’ve made known my
personal views and sought to move positions based on my objective
and independent and non-political perspective.
I do think that these questions, Senator—if I may say, some of
these questions are some of the most difficult ones that we face
from a counterterrorism perspective, the question of detention policy. I absolutely agree that it would be my responsibility, if I’m
honored to be confirmed, to give my unvarnished and objective
views, share the intelligence with this Committee, and advocate for
what I believe is the right thing, to the best of my abilities within
the executive branch.

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Vice Chairman CHAMBLISS. Some would argue that Gitmo should
be closed because it is used as a recruiting tool for al-Qa’ida. And
that may be true. But yet al-Qa’ida uses our Israel policy, the Afghan war, the death of bin Ladin and a host of other issues as recruiting tools, and no one suggests that we should change these
policies.
In your current position or positions you have held, have you
seen any evidence that we are safer or that recruits have fallen off
as a result of the President’s announcement of his intent to close
Guantanamo?
Mr. OLSEN. I’ve not seen, from, again, my perspective, both on
the task force and in a much more limited perspective in my current role at the National Security Agency, anything, in specific response to your question, to that effect, that there’s a change in recruiting based on the current government policy.
Vice Chairman CHAMBLISS. All right. Lastly, let me tell you an
issue that we’ve got that I know you’re aware about and get your
thoughts on. In the past, NCTC has raised a number of concerns
about not having access to all the intelligence information it needs.
Of particular concern is access to information in the possession
of the Department of Homeland Security. Generally, DHS is reluctant to provide information relating to an individual’s asylum application or refugee status on the grounds that sharing that information would violate U.S. person restrictions. The specific legal
basis for DHS’s position is unclear.
Have you got any thoughts on how we can address that problem
with DHS? And are asylum seekers U.S. persons or considered U.S.
persons? Is that an issue in your mind?
Mr. OLSEN. Senator, I am generally familiar with this area or
this issue. I don’t have the specifics of the particular concern with
DHS. I’ve had some briefings about this question.
If I may say, I do believe that, given my role at the Department
of Justice and my role now, that I have both an understanding—
actually, quite a deep understanding of the rules that apply to protect civil liberties and privacy of U.S. persons. But I also, I think,
have a very strong view and a record of finding the appropriate
ways to overcome legal, sometimes perceived legal, as well as the
policy barriers to sharing information.
I don’t believe that there is a strong basis for, as a policy matter,
not allowing information to be shared when that information is
necessary to protect the American people. And if I am honored to
be confirmed, it will absolutely be my commitment to find a way
to overcome expressed concerns about sharing information when
that information is necessary to support NCTC’s mission, and that
is to prevent another terrorist attack. So the Committee certainly
has my commitment to look very hard at that question.
Vice Chairman CHAMBLISS. Well, as you and I discussed in my
office, the critical role that NCTC plays is, for the most part, centered around information sharing, both in its requirement that you,
as Director of NCTC, share information you have, but you’ve got
to get the information first.
And let me just say that the Chairman and I, I think, stand
without question ready to make sure that you’ve got all the tools
that you need. And from a policy standpoint, we’re prepared to do

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 93
what’s necessary to make sure that the information that you have
to be shared is all of the intelligence information.
And let me just close by saying that, as the Chairman stated,
we’ve gotten inundated with letters of recommendation, which you
should feel very honored to be supported in that respect. And I
know you are.
The letter from General Alexander was very complimentary. And
not only did he write a letter, but he happens to be a good friend,
a guy that I have the utmost respect for, and he called yesterday
to reinforce that recommendation. And, because I have such respect
for General Alexander, that means a lot.
So we’ll look forward to moving down the road. And the only
thing I would remind you of is if you could get us those names of
those individuals in that briefing. And hopefully we’ll get this nomination moved quickly.
Madam Chair, thank you.
Mr. OLSEN. Thank you very much.
Chairman FEINSTEIN. Thank you very much.
You know, I’d like to close off the briefing. I cannot imagine a
more thankless task than being Director of the policy Committee
of which you were Director, because you know, no matter what, it’s
thankless. And no matter what, there’s going to be criticism, and
particularly in those days, as I recall them, where it was so very,
very difficult. So I just want to thank you for that. And in my book,
you’re a straight shooter. And I think that’s what matters here.
I would like to just talk about the vision thing for a moment, if
I might. One of NCTC’s statutory responsibilities is to conduct strategic operational planning for counterterrorism activities and integrate all of the instruments of national power.
However, when it granted NCTC this responsibility, Congress
didn’t provide you with any authority to compel actions in these
areas. So we may have to go back and look at that again.
But the question is, what is your vision of NCTC’s role in conducting strategic operational planning for counterterrorism activities and integrating all the instruments of national so-called power
into that planning?
Mr. OLSEN. Thank you very much, Senator.
As you point out, one of the critical missions of NCTC is the strategic operational planning mission. I do believe that NCTC is
uniquely positioned to conduct that mission. And my vision for that
is consistent with, I think, the effort and the progress that NCTC
has made in that regard over the last couple years—that is, bringing together the various represented entities, whether it’s military
or intelligence community, combining those perspectives—and
those perspectives vary—in a way that will allow us to make sure
that the efforts that the U.S. government is undertaking to combat
terrorism, whether it is on a regional level, focusing on a particular
region or a particular problem or a particular topic such as countering violent extremism—conducting an all-of-government approach to address those issues, something that NCTC is, I think,
as I said, uniquely positioned to do, both because it has members
from all these different agencies brought together and because it
has the mission granted to it by Congress.

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 EXHIBIT 14

S. HRG. 112–481

CURRENT AND PROJECTED NATIONAL SECURITY
THREATS TO THE UNITED STATES

HEARING
BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE
OF THE

UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION

TUESDAY, JANUARY 31, 2012

Printed for the use of the Select Committee on Intelligence

(
Available via the World Wide Web: http://www.fdsys.gov

U.S. GOVERNMENT PRINTING OFFICE
74–790 PDF

WASHINGTON

:

2012

For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800
Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

 SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
DIANNE FEINSTEIN, California, Chairman
SAXBY CHAMBLISS, Georgia, Vice Chairman
JOHN D. ROCKEFELLER IV, West Virginia OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon
RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland
JAMES E. RISCH, Idaho
BILL NELSON, Florida
DANIEL COATS, Indiana
KENT CONRAD, North Dakota
ROY BLUNT, Missouri
MARK UDALL, Colorado
MARCO RUBIO, Florida
MARK WARNER, Virginia
HARRY REID, Nevada, Ex Officio
MITCH MCCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN MCCAIN, Arizona, Ex Officio

DAVID GRANNIS, Staff Director
MARTHA SCOTT POINDEXTER, Minority Staff Director
KATHLEEN P. MCGHEE, Chief Clerk

(II)

 CONTENTS
JANUARY 31, 2012
OPENING STATEMENTS
Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California ..................
Chambliss, Hon. Saxby, Vice Chairman, a U.S. Senator from Georgia ..............

1
10

WITNESSES
Clapper, James R., Director of National Intelligence ...........................................
Petraeus, David, Director, Central Intelligence Agency .......................................
Olsen, Matthew, Director, National Counterterrorism Center ............................
Burgess, Lt. General Ronald, Director, Defense Intelligence Agency .................
Mueller, Robert, Director, Federal Bureau of Investigation ................................
Goldberg, Philip, Assistant Secretary, Bureau of Intelligence and Research,
U.S. State Department ........................................................................................
Wagner, Caryn, Under Secretary for Office of Intelligence and Analysis, Department of Homeland Security ..........................................................................

13
48
51
52
53
55
66

SUPPLEMENTAL MATERIAL
List of Counterterrorism Arrests in the U.S. in 2011 and 2012 ..........................
Prepared Statement for the Record on the Worldwide Threat Assessment
of the U.S. Intelligence Community by James R. Clapper ...............................

(III)

2
17

 CURRENT AND PROJECTED NATIONAL
SECURITY THREATS TO THE UNITED STATES
TUESDAY, JANUARY 31, 2012

SELECT COMMITTEE

U.S. SENATE,
ON INTELLIGENCE,

Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in Room
SH–216, Hart Senate Office Building, the Honorable Dianne Feinstein (Chairman of the Committee) presiding.
Committee Members Present: Senators Feinstein, Chambliss,
Wyden, Udall of Colorado, Snowe, Rockefeller, Conrad, Mikulski,
Coats, Risch, Blunt, Warner, McCain, Nelson, and Rubio.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
CHAIRMAN, A U.S. SENATOR FROM CALIFORNIA

Chairman FEINSTEIN. The Senate Select Committee on Intelligence meets today in open session for our annual Worldwide
Threat Hearing.
This hearing provides the Intelligence Community with an opportunity to present to the nation its views of the threats and challenges we face, and for the Committee to ask questions of our intelligence leaders in public. Today is also an opportunity to take stock
of what has happened in the last year and what we can expect for
2012.
Before looking ahead, I want to congratulate the leaders of the
Intelligence Community before us today, and the tens of thousands
of civilian and military intelligence professionals they represent.
Through their efforts, 2011 was a year of numerous major intelligence successes, including, first and foremost, the operation that
located and killed Osama bin Laden.
This past year also saw the removal of top terrorist leaders, plotters and recruiters, including Anwar al-Awlaki, in Yemen; alQa’ida’s linchpin in Pakistan, Atiyah Abd al-Rahman; and numerous others, resulting in the disruption of specific terrorist plots,
and casting into disarray al-Qa’ida’s senior leadership.
Closer to home, since our hearing last year, there were at least
twenty individuals arrested in the United States on terrorism-related charges in seventeen different investigations, which stopped
them from carrying out or assisting in attacks on the Homeland.
In the interest of time, I will put a list that describes each of these
arrests in the record.
[The List of Counterterrorism Arrests in the U.S. in 2011 and
2012 follows:]
(1)

 50
The activities right now are also complicated, though, because of
the difficulties in the domestic context there, where there’s a bit of
tension between the Supreme Court, between the Army Chief and
the ISI Director, and the government, the President and the Prime
Minister. That may be calming a bit. There have been signs of that
in recent days.
It’s worth noting, by the way, that the former Pakistani ambassador to the United States, Ambassador Haqqani, was allowed to
leave, and he did arrive in the UAE this morning. Nonetheless, the
situation, I think as our British colleagues might say, is fraught,
and it is going to take some time, it’s going to take a lot of diplomacy, engagement, and so forth, to move forward in a relationship
that’s important to both of our countries.
I should note that, as a general comment, we believe the relationship between the intelligence services is generally still productive. There is certainly good communication going back and forth.
And there has been, again, pursuit of important mutual objectives
between the two services.
Chairman FEINSTEIN. Thank you both very much. Mr. Vice
Chairman?
Vice Chairman CHAMBLISS. Thanks, Madam Chair.
Director Clapper, press reports—and I emphasize that—indicate
that the United States is prepared to trade five Taliban members
currently detained at Guantanamo as a confidence-building measure in negotiations with the Taliban.
Now, all five detainees that are named by the press were determined by the current Administration to be—and I quote—‘‘too dangerous to transfer,’’ and are being held as enemy combatants. Now,
as part of the task force, did the Intelligence Community concur in
the determinations that these five detainees were too dangerous to
transfer and should be held as enemy combatants?
Director CLAPPER. Well, I believe that in the original assessments, with which NCTC Director Matt Olsen was involved, that
was the case. I should say, though, that this proposed so-called
trade has actually not been decided yet. There’s continued consultation with the Congress. In fact, there will be a session this afternoon with the Senate leadership on this issue.
And, of course, we are certainly mindful of the provisions in the
National Defense Authorization Act and the requirement for certifications, and I believe, inherent in that, is continued consultation
with the Congress on whether or not this would go forward.
That said, I think the history has been, in almost every case
where we’ve had hostilities, that at some point in time there are
negotiations. I don’t think anyone in the Administration harbors
any illusions about the potential here. And, of course, part and parcel of such a decision, if it were finally made, would be the actual
determination of where these detainees might go and the conditions in which they would be controlled or surveilled.
Vice Chairman CHAMBLISS. Director Olsen, as stated there, you
did head the Guantanamo review task force that made the determination that these five reported named individuals were too dangerous to transfer. Have you changed your view with respect to
these detainees?

 51
Director OLSEN. Vice Chairman, I have not been involved in any
reviews more recently of those detainees. As you point out, they
were subject to the review we conducted in 2009 that determined
that. I believe those were among the 48 who were deemed too dangerous to release and who could not be prosecuted. But I’ve done
no further review in my current capacity at NCTC.
Vice Chairman CHAMBLISS. So, what you’re saying is that the
Administration has not asked you for any update of your opinion
relative to these individuals?
Director OLSEN. That’s correct.
Director CLAPPER. Well, sir, I need to inject here, though, that
in the interagency deliberations, certainly the IC has been asked,
and we have provided, assessments of the five that are in question.
So that has been a part of the discussion.
Vice Chairman CHAMBLISS. And has there been a change by the
Community from the categorizing of these individuals as ‘‘too dangerous to transfer’’?
Director CLAPPER. We haven’t—no, sir, I don’t believe that under
normal circumstance—in other words, repatriation to their point of
origin or their country of origin. This is a little different. This is
a different condition, though, in terms of the potential for negotiating some form of confidence-building measure with the Taliban.
And this is very, very preliminary. And, again, no final decision
has been made.
Vice Chairman CHAMBLISS. Let me ask you and Director
Petraeus, who are very familiar with this—are you comfortable
with transferring these individuals out of Guantanamo?
Director CLAPPER. For me, the key would be where they would
go, the intermediate country where they might be detained, and
the degree to which they would be surveilled. And that would be
the key determinant for me.
Vice Chairman CHAMBLISS. And Director Petraeus?
Director PETRAEUS. Very similar, Vice Chairman. In fact, our analysts did provide assessments of the five and the risks presented
by various scenarios by which they could be sent somewhere—not
back to Afghanistan or Pakistan—and then, based on the various
mitigating measures that could be implemented, to ensure that
they cannot return to militant activity.
Vice Chairman CHAMBLISS. The Intelligence Community assesses—and, Director Clapper, your statement for the record underscores—that the Taliban remains resilient and capable of challenging U.S. and international goals in Afghanistan. The Community also assesses that Taliban senior leaders continue to enjoy safe
havens in Pakistan, which enables them to provide strategic direction to the insurgency in Afghanistan without fear for their safety.
Does the Community assess that Taliban reconciliation is likely
to have a great deal of success, considering that the group is resilient, maintains the ability to challenge the United States, continues to enjoy sanctuary in Pakistan, and knows the timelines
under which we plan to withdraw U.S. forces from Afghanistan?
Director CLAPPER. I think our assessment is pretty much as you
stated it, sir. The Taliban remains a resilient, determined adversary. That said, again, I repeat—and I don’t think anybody harbors
any illusions about it, but I think the position is to at least explore

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appropriations.house.gov/news/documentprint.aspx?DocumentID=235842

appropriations.house.gov
Rep Cmte Appropriations 
Contact: Jennifer Hing 202­226­7007 
More Released Gitmo Detainees Returning to Terrorism ­ Approps Republicans Insist on Immediate Halt
to Transfers and Releases 
, May 7 ­ 
More and More Released Guantanamo Detainees Returning to Terrorism
Appropriations Republicans Insist on an Immediate Halt to
Detainee Transfers and Releases

 
WASHINGTON, D.C. – Several Ranking Republican Members of the House Appropriations Committee today sent a letter to National
Security Advisor General James Jones, insisting that the transfer and release of Guantanamo detainees be halted immediately, and that
efforts to close the facility be put on hold. The letter indicates that the percentage of former Guantanamo detainees returning to the
battlefield has jumped from 14% to over 20%, and that the remaining detainees currently held at the facility are believed to pose an
even greater threat to our national security than those already released.  In addition, the Ranking Members state concern over press
reports unveiling several detainees who have returned to terrorism but have not been counted in Administration reports.
 
The text of the letter follows:
 
 
May 7, 2010
 
General James L. Jones
National Security Advisor
The White House
Washington, D.C. 20500
 
Dear General Jones,
 
            We are writing to you as the President’s National Security Advisor to express our grave continuing concerns regarding the
Administration’s current policy regarding the disposition of detainees held at Guantanamo Bay, Cuba, as well as the Administration’s
continued failure to keep the Congress fully informed on this critical national security issue.  Given the seriousness of this issue, we
ask that you recommend to the President an immediate prohibition on the transfer of any detainee out of Guantanamo Bay, and a halt
to any action related to the closure of the facility.
 
            It has been almost 16 months since the Administration ordered the closure of the Guantanamo Bay, Cuba detention facility. 
That mandate was announced prior to any review of the alleged terrorist acts of the detained individuals, the national security risks
associated with the release or transfer, or the recidivism rates of previously released detainees.  Since that mandate was announced, the
Administration has yet to provide the Congress or the American people a comprehensive plan for the disposition of each detainee;
including the risk such transfer or release would pose to the national security of the homeland and our troops serving on the
battlefield.
 
 In addition, the President’s budget request proposes the lifting of each and every safeguard and notification requirement approved by
the Congress in the Fiscal Year 2010 Appropriations bills related to the transfer or release of detainees. These safeguards included a
prohibition on the transfer or release of detainees in the U.S. except for the purposes of prosecution, and a prohibition on granting
detainees’ asylum, refugee status, or any other immigration benefit.  In addition, your budget also proposes to lift the requirements
that the President submit to the Congress a detailed plan and risk assessment regarding each detainee it plans to bring to the U.S. for
prosecution or detention, as well as the requirement that the Attorney General provide advance certification to the Governors of the
impacted States that the detainees do not pose a risk to the United States.
 
            Given the serious national security questions and the lack of transparency surrounding the proposed closure of the
Guantanamo Bay detention facility, we have growing concerns with the Administration’s aggressive campaign to transfer
Guantanamo detainees to other countries.  
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Based on press accounts, over the last 16 months, the Administration has transferred 66 detainees to other countries, including at least
seven to Afghanistan, seven to Yemen, and two to Somaliland.  These transfers have been done under a cloak of secrecy with
notifications sent to Congress in classified form – which ensures that most Members and the general public will remain unaware of the
actions being taken – despite the fact that much of the information in the notifications is derived from unclassified sources.  In
addition, the required Congressional notifications have failed to include explanations of the findings of the Administration’s detainee
reviews, or any other information used by the Administration to conclude that a given detainee could safely be transferred without
posing a threat to the U.S. or our troops on the battlefield.  We are also concerned by recent news that the Administration may be
preparing to lift the temporary ban on transferring detainees to Yemen, and taking steps to proceed with the transfer of a large number
of Yemeni detainees back to their troubled home country.
 
The detainee transfers have occurred, and continue to occur, at a time when the number of former detainees suspected or confirmed to
have returned to terrorism is growing.  In a January 2010 letter from Deputy National Security Advisor John Brennan to Speaker
Pelosi, we learned that the recidivism rate of previously released detainees has climbed to 20 percent – to over 100 terrorists – well
above the 14 percent figure Congress was given in the summer of 2009. 
 
However, the accuracy of these numbers is unclear, and we fear that the number of detainees released and returned to terrorism may be
even larger.  For example, we know that these numbers do not include Abdul Hafiz, who was released from Guantanamo to
Afghanistan along with 3 other detainees in December of 2009.   In March 2010, Newsweek reported that, according to three U.S.
counterterrorism officials, Hafiz had already returned to the battlefield to fight with Taliban insurgents.  If these accounts are true, this
former detainee returned to the fight within less than four months of his release. 
 
It is also unclear whether these figures include the following Guantanamo Bay detainees reported in the media to have returned to the
battlefield:
 
·         Said al­Shihri and Mohammed Al­Oufi –These two former Guantanamo Bay detainees who, after completion of the Saudi
Rehabilitation program, announced on January 23, 2009 that they had returned to Yemen to join Al Qaeda in the Arabian Peninsula
(AQAP).  Press reports indicate that Said al­Shihri is now the AQAP’s second in command is believed to be behind the car bombing of
the U.S. Embassy in Sanaa in September of 2008 which killed 16 people, and may have had a role in the Christmas Day bombing
plot.  These two individuals are among 11 former Guantanamo detainees included on the Most Wanted List released by the Saudi
Government in February 2009.

 
·         Abdul Qayem Zakir – This former detainee is reported to have been appointed second in command of the Taliban by Taliban
leader Mullah Omar, replacing Abdul Baradar who was arrested by Pakistani forces in Karachi in February.  According to reports by
Newsweek, a spokesman for the Taliban indicated that this action was meant “to convey a good message that, despite our leader's
arrest, the Taliban is back to business­as­usual operations without a problem."

 
            We all acknowledge that many detainees who returned to the fight were released based on assumptions by the previous
Administration that they were no longer a threat or could be rehabilitated.  In hindsight, these assumptions have proven to be flawed. 
The remaining population at Guantanamo is now believed to be comprised of individuals whose transfer or release would pose the
greatest danger to our national security, and it is clear that sound national security policy dictates a constant re­evaluation of prior
policies, lessons learned, and changes in circumstance. We have been disappointed to see the Deputy National Security Advisor for
Homeland Security and Counterterrorism, John Brennan, choose to engage in political posturing and public blaming of the previous
Administration’s policies related to detainees, rather than have a serious dialogue with the Congress regarding this very critical
national security issue.
 
General Jones, we believe it is incumbent on the Administration to reconsider its policy with respect to the detainees currently
remaining at Guantanamo, and we ask that you:  1) recommend to the President an immediate prohibition on the transfer of detainees
to the U.S. or any other country; 2) halt any activity related to the closure of Guantanamo while an overall re­evaluation can take
place, including input and participation of the Congress.  Specifically, we believe the Administration should remove its pending
request for almost $1 billion requested in FY 2011 to pay for the costs associated with moving Guantanamo Bay detainees to the
United States for indefinite detention or trial.  Additionally, now that the Detainee Review Task Force has completed its work and
disbanded, we request that you immediately transmit to the Congress a complete report on the work of the Task Force including the
findings and recommendations for the disposition of each detainee case, since such information is being used as the basis for all
decisions being made with respect to each detainee.
 
It is essential that we work together – across branches of government and across the aisle – to thwart terrorism in our homeland and
around the globe. The American people are depending on us to make decisions that will stop dangerous terrorists in their tracks and
keep our families and communities secure. We cannot and must not let them down.
 
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Thank you for your timely response to our request.
 
Sincerely,
 
S/
Jerry Lewis
C.W. Bill Young
Harold Rogers
Frank Wolf
Kay Granger
Michael Simpson
Zach Wamp
 
cc:  Secretary Robert Gates, Department of Defense
       Director of National Intelligence Dennis Blair
       Attorney General Eric Holder
       Secretary Hillary Rodham Clinton, Department of State
       Secretary Janet Napolitano, Department of Homeland Security
 

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Copyright 2014 Federal Information and News Dispatch, Inc.
Congressional Documents and Publications
June 4, 2014
SECTION: U.S. SENATE DOCUMENTS
LENGTH: 546 words
HEADLINE: Chambliss Calls on Administration to Declassify Intel on Taliban Five;
"The American people should know who these men are.";
Sen. Saxby Chambliss (R-GA) News Release
BODY:
WASHINGTON-Last night, U.S. Sen. Saxby Chambliss, R-Ga., vice chairman of the U.S. Senate Select
Committee on Intelligence, sent the following letter to President Obama, calling for the declassification of intelligence
related to the five Afghan nationals who were transferred from Guantanamo Bay, Cuba to Qatar.
"In addition to explaining why he did not notify Congress of this prisoner swap, President Obama needs to look the
American people in the eye and explain why he was justified in releasing these individuals. He also needs to explain the
risks associated with transferring these individuals and why they will never face justice for their past actions," said
Chambliss. "The president should immediately declassify each of their 2009 assessments and let the American people
know what each of these individuals was accused of, why they were being held at Guantanamo, and what this
administration found in each of their annual reviews. If the American people had this information, they would agree we
should not be returning these terrorists back to the fight."
Sen. Chambliss discusses this issue further here:
https://www.youtube.com/watch?v=qwEE28J6GtIandfeature=youtu.be
Below is the text of the letter:
June 3, 2014
President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

 Page 2
Chambliss Calls on Administration to Declassify Intel on Taliban Five; "The American people should know who these
men are."; Sen. Saxby Chambliss (R-GA) News Release Congressional Documents
Dear Mr. President:
I write to urge you to declassify additional intelligence related to the five Afghan nationals, Khairullah Khairkhwa
(ISN 579), Nurullah Noori (ISN 006), Mullah Mohammad Fazl (ISN 007), Abdul Haq Wasiq (ISN 004), and
Mohammad Nabi Omari (ISN 832), transferred from Guantanamo Bay, Cuba (GTMO) to Qatar. Since 2011, I have
opposed this transfer because of the threat these detainees pose. While I have been able to see the intelligence, the
American people have not. In order to fully evaluate the validity of this transfer and decide for themselves, the
American people should be afforded the opportunity to see as much of this intelligence as possible.
I formally request that you declassify, to the greatest extent possible, the 2009 Guantanamo Review Task Force
assessments and any other relevant intelligence surrounding the five transferred GTMO detainees. Although I
understand that some of this material needs to remain redacted, much of this intelligence is over a decade old and does
not present a threat to current U.S. sources and methods.
Secretary Clinton in a January 13, 2012, letter to the leadership of the House and Senate Intelligence Committees
stated: "I want also to make clear that any transfer from Guantanamo will be undertaken after consultation with
Congress and pursuant to all legal requirements for transfers, including those spelled out in the FY2012 Defense
Authorization Act." This commitment was not honored. Additionally, Secretary Hagel recently cited an "acute and
urgent danger to the life of Sergeant Bergdahl," for failing to properly notify Congress. Despite several requests, I have
not seen any evidence of a danger so urgent as to preclude the required notification.
Thank you for your urgent attention to this matter. I look forward to your response.
Sincerely,
Saxby Chambliss
Read this original document at:
http://www.chambliss.senate.gov/public/index.cfm/pressreleases?ID=5c30819e-3252-46df-bb53-9ef012ca9bf6
LOAD-DATE: June 5, 2014

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Walorski Sends Letter to President Obama Urging Declassification of Intelligence of Five Afghan Nationals   Congresswoman Jackie Walorski

WALORSKI SENDS LETTER TO PRESIDENT OBAMA URGING
DECLASSIFICATION OF INTELLIGENCE OF FIVE AFGHAN
NATIONALS
Tuesday, June 10, 2014
WASHINGTON D.C. – Congresswoman Jackie Walorski (IN­02), member of the House Armed Services Committee, along with six
of her House colleagues, sent a letter to President Obama today requesting the declassification of intelligence related to the five
Afghan nationals transferred from Guantanamo Bay, Cuba to Qatar last month.
“I’m extremely concerned that releasing these individuals presents a grave threat to our national security. I urge the president to
justify his reasoning for releasing these men by declassifying information so that the American people can learn what these men
were being held for in Guantanamo and what they were accused of,” Walorski said. “It’s also important to determine if their transfer
undermined Congressional authority when the president failed to notify us of this prisoner swap.”
The full text of the letter (http://www.scribd.com/doc/228973965/Rep­Walorski­Letter­to­President­Obama) is below:
Dear Mr. President:
We write to urge you to declassify as much intelligence as possible related to the five Afghan nationals transferred from
Guantanamo Bay, Cuba (GTMO) to Qatar on May 31, 2014: Khairullah Khairkhwa, Nurullah Noori, Mullah Mohammad Fazl, Abdul
Haq Wasiq, and Mohammad Nabi Omari. We oppose this transfer because of the threat these detainees pose and believe the
American people need more information to be able to evaluate fully the risk involved in their release.
We formally request you declassify, to the greatest extent possible, the 2009 Guantanamo Review Task Force assessments and
any other relevant intelligence surrounding the five transferred GTMO detainees. Although we certainly understand that some of
this material needs to remain redacted, much of this intelligence is over a decade old and does not present a threat to current U.S.
sources and methods.
The law is clear that any transfer from Guantanamo must be undertaken only after consultation with Congress. We are concerned
that this legal requirement was not met in this transfer. Though Secretary Hagel cited an “acute and urgent danger to the life of
Sergeant Bergdahl” as justification for failing to notify Congress, we have not yet seen any evidence of a danger so urgent as to
preclude the required notification.
No American should be left behind. However, larger national security issues cannot be overlooked or ignored.
Thank you for your urgent attention to this matter, and we look forward to your response.
Sincerely,
Jackie Walorski

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Rep. Tulsi Gabbard Highlights Grave Concerns About Release of Taliban Detainees   Congresswoman Tulsi Gabbard

Rep. Tulsi Gabbard Highlights Grave Concerns About Release
of Taliban Detainees
June 11, 2014    Press Release
Questions Defense Secretary Hagel on Risks to National Security
 
Washington, DC – Congresswoman Tulsi Gabbard (HI­02) today questioned Secretary of Defense Chuck Hagel in a hearing today at the House Armed
Services Committee on the prisoner swap to recover Sgt. Bowe Bergdahl. She released the following statement detailing her concerns about the risk the
prisoner swap will pose to national security: 
  
“The first warrior ethos that all servicemembers abide by is, ‘I will always place the mission first.’  Although as a Soldier and veteran I know firsthand the
importance of leaving no man behind, I also know that the context of each situation must be considered carefully to ensure that we are not compromising
the mission: keeping our country and our people safe.  The fact is: the five Taliban terrorists who were released are strategists and commanders, not foot
soldiers, and as such, present a threat to the United States and our interests, wherever they are free to strategize with Taliban and other leaders, even
while they remain in Qatar. 
  
“The recent statements by the administration that these terrorists do not pose a significant threat are preposterous. The President’s Guantanamo Review
Task Force in 2010 determined that these five were ‘too dangerous to transfer.’ The task force concluded that each of these five individuals ‘poses a high
level of threat that cannot be mitigated sufficiently except through continued detention.’ Not only are they no longer detained, they have been sent to a
country where the Taliban operates openly and legally, with a headquarters based there.  Qatari officials have made it clear that they are free to move
about, with no limitations on who they can meet with, further proving they are still a serious threat.   
  
“Furthermore, this deal sets a dangerous precedent, and puts a target on the back of every American overseas, military and civilian.” 
  
Congresswoman Tulsi Gabbard raised several concerns (http://www.c­span.org/video/ʻc4500600/rep­tulsi­gabbard­questions­defense­secretary­hagel­
release­high­profile­taliban­detainees)with Secretary of Defense Chuck Hagel in a hearing of the House Armed Services Committee today. 
  
###

Office Locations (/contact/offices)
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Washington, DC 20515
Phone: (202) 225­4906
Fax: (202) 225­4987 
Email: TulsiOffice@mail.house.gov

Hawaiʻi District Office
300 Ala Moana Blvd., Rm. 5­104
Honolulu, HI 96850
Phone: (808) 541­1986
Fax: (808) 538­0233 
Email: TulsiOffice@mail.house.gov

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