H. Rept. 111-383 - 111th Congress (2009-2010)
December 17, 2009, As Reported by the Armed Services Committee

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House Report 111-383 - DIRECTING THE SECRETARY OF DEFENSE TO TRANSMIT TO THE HOUSE OF REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE, OR OTHER COMMUNICATION OF THE DEPARTMENT OF DEFENSE, OR ANY PORTION OF SUCH COMMUNICATION, THAT REFERS OR RELATES TO THE TRIAL OR DETENTION OF KHALID SHEIKH MOHAMMED, WALID MUHAMMAD SALIH MUBAREK BIN 'ATTASH, RAMZI BINALSHIBH, ALI ABDUL AZIZ ALI, OR MUSTAFA AHMED ADAM AL HAWSAWI




[House Report 111-383]
[From the U.S. Government Printing Office]


111th Congress 
 1st Session            HOUSE OF REPRESENTATIVES                 Report
                                                                111-383
_______________________________________________________________________
 
    DIRECTING THE SECRETARY OF DEFENSE TO TRANSMIT TO THE HOUSE OF 
 REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE, 
OR OTHER COMMUNICATION OF THE DEPARTMENT OF DEFENSE, OR ANY PORTION OF 
SUCH COMMUNICATION, THAT REFERS OR RELATES TO THE TRIAL OR DETENTION OF 
KHALID SHEIKH MOHAMMED, WALID MUHAMMAD SALIH MUBAREK BIN 'ATTASH, RAMZI 
    BINALSHIBH, ALI ABDUL AZIZ ALI, OR MUSTAFA AHMED ADAM AL HAWSAWI

                               __________

                              R E P O R T

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                                   ON

                              H. RES. 924

                             together with

                    ADDITIONAL AND DISSENTING VIEWS
                                     

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

                                     

 December 17, 2009.--Referred to the House Calendar and ordered to be 
                                printed.
                   HOUSE COMMITTEE ON ARMED SERVICES
                     One Hundred Eleventh Congress

                    IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina          HOWARD P. ``BUCK'' McKEON, 
SOLOMON P. ORTIZ, Texas                  California
GENE TAYLOR, Mississippi             ROSCOE G. BARTLETT, Maryland
NEIL ABERCROMBIE, Hawaii             MAC THORNBERRY, Texas
SILVESTRE REYES, Texas               WALTER B. JONES, North Carolina
VIC SNYDER, Arkansas                 W. TODD AKIN, Missouri
ADAM SMITH, Washington               J. RANDY FORBES, Virginia
LORETTA SANCHEZ, California          JEFF MILLER, Florida
MIKE McINTYRE, North Carolina        JOE WILSON, South Carolina
ROBERT A. BRADY, Pennsylvania        FRANK A. LoBIONDO, New Jersey
ROBERT ANDREWS, New Jersey           ROB BISHOP, Utah
SUSAN A. DAVIS, California           MICHAEL TURNER, Ohio
JAMES R. LANGEVIN, Rhode Island      JOHN KLINE, Minnesota
RICK LARSEN, Washington              MIKE ROGERS, Alabama
JIM COOPER, Tennessee                TRENT FRANKS, Arizona
JIM MARSHALL, Georgia                BILL SHUSTER, Pennsylvania
MADELEINE Z. BORDALLO, Guam          CATHY McMORRIS RODGERS, Washington
BRAD ELLSWORTH, Indiana              K. MICHAEL CONAWAY, Texas
PATRICK J. MURPHY, Pennsylvania      DOUG LAMBORN, Colorado
HANK JOHNSON, Georgia                ROB WITTMAN, Virginia
CAROL SHEA-PORTER, New Hampshire     MARY FALLIN, Oklahoma
JOE COURTNEY, Connecticut            DUNCAN HUNTER, California
DAVID LOEBSACK, Iowa                 JOHN C. FLEMING, Louisiana
JOE SESTAK, Pennsylvania             MIKE COFFMAN, Colorado
GABRIELLE GIFFORDS, Arizona          THOMAS J. ROONEY, Florida
NIKI TSONGAS, Massachusetts          TODD RUSSELL PLATTS, Pennsylvania
GLENN NYE, Virginia
CHELLIE PINGREE, Maine
LARRY KISSELL, North Carolina
MARTIN HEINRICH, New Mexico
FRANK M. KRATOVIL, Jr., Maryland
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
SCOTT MURPHY, New York
WILLIAM L. OWENS, New York
DAN BOREN, Oklahoma

                    Erin C. Conaton, Staff Director
                            C O N T E N T S

                              ----------                              
                                                                   Page

Purpose and Background...........................................     2
Legislative History..............................................     3
Committee Position...............................................     3
Committee Cost Estimate..........................................     3
Compliance with House Rule XXI...................................     3
Oversight Findings...............................................     3
Constitutional Authority Statement...............................     4
Statement of Federal Mandates....................................     4
Record Vote......................................................     4
Changes in Existing Law Made by the Bill, as Reported............     6
Additional and Dissenting Views:
Additional Views of Cathy McMorris Rodgers.......................     7
Dissenting Views of Howard P. ``Buck'' McKeon, Mac Thornberry, W. 
  Todd Akin, J. Randy Forbes, Jeff Miller, Joe Wilson, Frank A. 
  LoBiondo, Rob Bishop, Michael Turner, John Kline, Mike Rogers, 
  Trent Franks, Bill Shuster, Cathy McMorris Rodgers, K. Michael 
  Conaway, Doug Lamborn, Rob Wittman, Mary Fallin, Duncan Hunter, 
  John C. Fleming, Mike Coffman, Thomas J. Rooney, Todd Russell 
  Platts.........................................................     8
111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-383

======================================================================


    DIRECTING THE SECRETARY OF DEFENSE TO TRANSMIT TO THE HOUSE OF 
 REPRESENTATIVES COPIES OF ANY DOCUMENT, RECORD, MEMO, CORRESPONDENCE, 
OR OTHER COMMUNICATION OF THE DEPARTMENT OF DEFENSE, OR ANY PORTION OF 
SUCH COMMUNICATION, THAT REFERS OR RELATES TO THE TRIAL OR DETENTION OF 
KHALID SHEIKH MOHAMMED, WALID MUHAMMAD SALIH MUBAREK BIN 'ATTASH, RAMZI 
    BINALSHIBH, ALI ABDUL AZIZ ALI, OR MUSTAFA AHMED ADAM AL HAWSAWI

                                _______
                                

 December 17, 2009.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

   Mr. Skelton, from the Committee on Armed Services, submitted the 
                               following

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                       [To accompany H. Res. 924]



  The Committee on Armed Services, to whom was referred the 
resolution (H. Res. 924) directing the Secretary of Defense to 
transmit to the House of Representatives copies of any 
document, record, memo, correspondence, or other communication 
of the Department of Defense, or any portion of such 
communication, that refers or relates to the trial or detention 
of Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek Bin 
'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, or Mustafa Ahmed 
Adam al Hawsawi, having considered the same, report favorably 
thereon with amendments and recommend that the resolution as 
amended be agreed to.

  The amendments are as follows:
  Strike all after the resolving clause and insert the 
following:

That the House of Representatives directs the Secretary of Defense to 
transmit the following documents and records to the House of 
Representatives not later than 30 days prior to the transfer of Khalid 
Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi 
Binalshibh, Ali Abdul Aziz Ali, or Mustafa Ahmed Adam al Hawsawi from 
the United States Naval Station, Guantanamo Bay, Cuba, to the United 
States:
          (1) As required by section 1041 of the National Defense 
        Authorization Act for Fiscal Year 2010 (Public Law 111-84), an 
        assessment of the risks that the detainee poses to the national 
        security of the United States once he is transferred to the 
        United States for trial.
          (2) As required by section 1041 of the National Defense 
        Authorization Act for Fiscal Year 2010 (Public Law 111-84), 
        measures to mitigate any risks described in paragraph (1).
          (3) The location or locations at which the detainee will be 
        held.
          (4) The costs associated with the transfer, mitigation of the 
        risks described in paragraph (2), and any other costs related 
        to the execution of the comprehensive plan required by section 
        1041 of the National Defense Authorization Act for Fiscal Year 
        2010 (Public Law 111-84).
          (5) A summary of the consultation required by section 1041(d) 
        of the National Defense Authorization Act for Fiscal Year 2010 
        (Public Law 111-84).
          (6) As required by section 1041 of the National Defense 
        Authorization Act for Fiscal Year 2010 (Public Law 111-84), a 
        certification by the Attorney General that under the 
        comprehensive plan referred to in paragraph (4) the detainee 
        poses little or no security risk to the United States.

  Amend the title so as to read:

      Resolution directing the Secretary of Defense to transmit 
to the House of Representatives certain documents in the 
possession of the Department of Defense relating to detainees 
held at the United States Naval Station, Guantanamo Bay, Cuba, 
who are to be prosecuted in the United States.

                         PURPOSE AND BACKGROUND

    On November 19, 2009, Congressman Howard P. ``Buck'' McKeon 
(R-CA) introduced House Resolution 924, a resolution of 
inquiry. The resolution, as introduced, would direct the 
Secretary of Defense to transmit to the House of 
Representatives not later than 14 days after the date of the 
adoption of the resolution, copies of any document, record, 
memo, correspondence, or other communication of the Department 
of Defense, or any portion of such communication, that refers 
or relates to the trial or detention of Khalid Sheikh Mohammed, 
Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali 
Abdul Aziz Ali, or Mustafa Ahmed Adam al Hawsawii.
    Clause 7 of rule XIII of the Rules of the House of 
Representatives provides for a committee to report on a 
qualifying resolution of inquiry, such as House Resolution 924, 
within 14 legislative days or a privileged motion to discharge 
the committee is in order. House Resolution 924 was referred to 
the Committee on Armed Services on November 19, 2009.
    Under the rules and precedents of the House, a resolution 
of inquiry is one of the means by which the House may request 
information from the head of one of the executive departments. 
It is a simple resolution making a demand of the head of an 
executive department to furnish the House of Representatives 
with specific information in the possession of the executive 
branch. It is not used to request opinions or to require an 
investigation on a subject.
    On December 15, 2009, the Committee on Armed Services took 
up House Resolution 924 for the purpose of reporting a 
recommendation to the House. House Resolution 924 was amended 
to direct the Secretary of Defense to transmit to the House of 
Representatives certain documents and records not later than 30 
days prior to the transfer of Khalid Sheikh Mohammed, Walid 
Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul 
Aziz Ali, or Mustafa Ahmed Adam al Hawsawii from the United 
States Naval Station, Guantanamo Bay, Cuba, to the United 
States, to include, as also required by section 1041 of the 
National Defense Authorization Act for Fiscal Year 2010 (Public 
Law 111-84), the location(s) at which the detainee will be 
held, costs, a summary of the consultation required by section 
1041, and certification that the detainee poses little or no 
risk in compliance with section 1041. Additionally, the title 
of House Resolution 924 was amended so as to read: ``A 
resolution directing the Secretary of Defense to transmit to 
the House of Representatives certain documents in the 
possession of the Department of Defense relating to detainees 
held at the United States Naval Station, Guantanamo Bay, Cuba, 
who are to be prosecuted in the United States.''

                          LEGISLATIVE HISTORY

    House Resolution 924 was introduced on November 19, 2009, 
and referred to the Committee on Armed Services.
    On December 15, 2009, the Committee on Armed Services held 
a mark-up session to consider House Resolution 924, as 
introduced. The committee, a quorum being present, ordered to 
be reported House Resolution 924, as amended, to the House with 
a favorable recommendation by a voice vote.

                           COMMITTEE POSITION

    On December 15, 2009, the Committee on Armed Services, a 
quorum being present, ordered to be reported House Resolution 
924, as amended, to the House with a favorable recommendation 
by a voice vote.

                        COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d) of rule XIII of the Rules of the 
House of Representatives, the committee estimates the costs of 
implementing the resolution would be minimal. The Congressional 
Budget Office did not provide a cost estimate for the 
resolution.

                     COMPLIANCE WITH HOUSE RULE XXI

    Pursuant to clause 9 of rule XXI, House Resolution 924 
contains no congressional earmarks, limited tax benefits, or 
limited tariff benefits as defined in clause 9(d), 9(e), or 
9(f) of rule XXI.

                           OVERSIGHT FINDINGS

    With respect to clause 3(c)(1) of rule XIII of the Rules of 
the House of Representatives, the committee reports that the 
findings and recommendations of the committee, based on 
oversight activities pursuant to clause 2(b)(1) of rule X, are 
incorporated in the descriptive portions of this report.
    With respect to clause 3(c)(2) of rule XIII of the Rules of 
the House of Representatives, this legislation does not include 
any new spending or credit authority, nor does it provide for 
any increase or decrease in tax revenues or expenditures.
    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, the bill does not authorize 
specific program funding.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the committee finds the authority for 
this legislation in Article I, Section 8 of the United States 
Constitution.

                     STATEMENT OF FEDERAL MANDATES

    Pursuant to section 423 of Public Law 104-4, this 
legislation contains no federal mandates with respect to state, 
local, and tribal governments, nor with respect to the private 
sector. Similarly, the bill provides no unfunded federal 
intergovernmental mandates.

                              RECORD VOTE

    In accordance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, a record vote was taken with 
respect to the committee's consideration of House Resolution 
924. The record of this vote is included in this report.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Clause 3(e) of rule XIII of the Rules of the House of 
Representatives requires an elaboration or description of how 
the reported bill proposes to repeal or amend a statue or part 
thereof. There were no changes in existing law made by House 
Resolution 924, as reported.

        ADDITIONAL VIEWS BY CONGRESSWOMAN CATHY McMORRIS RODGERS

    It disturbs me that this Administration believes that the 
benefits of trying Khalid Sheikh Mohammed and the four other 
co-conspirators in the United States and in a U.S. courtroom 
outweigh the benefits of trying them before the military 
commissions. This is unacceptable. I think it is critical that 
we understand the basis for Attorney General Holder's decision. 
Does he believe that terrorists deserve the rights afforded by 
the constitution and that those rights outweigh the security of 
actual U.S. citizens? These are terrorists who were detained 
outside the United States. These are terrorists who were 
detained in a war zone. These are terrorists who want to kill 
Americans. Military Commissions are no doubt the appropriate 
forum for trying alleged war crimes. For example, in a military 
commission, an affidavit stating that the terrorists were 
captured on the battlefield can be used without the 
servicemember or unit testifying with the terrorist present. 
This is not the case in our justice system. The military 
commission at Guantanamo was designed specifically to protect 
our intelligence and the methods used to gather it. This is not 
the case in our justice system where in the interest of 
fairness, information is disclosed to the defendants. The 
courtroom at Guantanamo was constructed, at a cost of millions 
of dollars to taxpayers of the United States, to handle 
classified information and security needs. Moreover, the rules 
for conducting criminal trials in federal courts have been 
designed to prosecute conventional crimes by conventional 
criminals not terrorists who want to destroy America and its 
citizens. Finally, I would just like to add that if the 
Department of Justice believes that defendants will be found 
guilty--What does this say about the premise that defendants in 
our justice system are presumed innocent before proven guilty? 
What does that mean for all future defendants? What kind of 
precedent does this set?

                                            Cathy McMorris Rodgers.

                            DISSENTING VIEWS

    We write in dissent to H. Res. 924 and feel that by 
rejecting the underlying resolution and voting in favor of the 
Chairman's substitute the committee missed an opportunity to 
exercise forceful oversight. Instead of simply restating 
current law, as the substitute mandated, the underlying 
resolution would have required the Department of Defense to 
provide Congress with all information referring or relating to 
the trial or detention of the terrorists responsible for the 
September 11th attacks on the World Trade Center and the 
Pentagon. This is precisely the type of oversight the American 
people demand and deserve.
    Nearly eleven months ago in one of his first acts in the 
White House, President Obama signed an executive order which 
ordered the detention facility in Guantanamo Bay, Cuba (GTMO) 
closed by January 2010. At the time many of us doubted the 
wisdom of the decision and questioned whether the President had 
a plan in place to execute the decision. We worried that the 
President was making policy without fully grasping the 
difficulty of the problem and was blindly carrying out a 
campaign promise.
    Over ten months later the President still does not have a 
plan. The questions have only increased and the concerns 
continue to grow. Instead of providing a clear plan to the 
American people, we've seen piecemeal decisions, lacking 
coherence and explanation.
    As if there was any doubt about our concern, on the same 
day the committee marked up H. Res. 924, the Administration 
announced that terrorists held at the Guantanamo detention 
facility would be transferred to a facility in Thomson, 
Illinois.
    Like the Thomson announcement, the decision to prosecute in 
New York City Khalid Sheikh Mohammed and the four other 9/11 
co-conspirators flies in the face of the will of the American 
people and a bipartisan majority of the Congress, which have 
already rejected bringing terrorists to U.S. soil for long-term 
detention. Current law prohibits it and future law should do 
the same. Instead of exercising caution and prudence, the 
Administration's policy appears as if it is willing to transfer 
detainees out of GTMO at any cost.
    This decision is misguided. It is dangerous. It is wrong. 
Consistent with the rest of the President's detainee policy, 
the Administration made this announcement without having a 
credible policy explanation for its decision. More than a month 
after Attorney General Holder made the announcement on November 
13th, this committee still has not received an answer to the 
basic question of why President Obama decided to transfer 
Khalid Sheikh Mohammed to the heart of New York and not 
prosecute him in a military commission.
    Shortly after the Attorney General's announcement, the 
Ranking Members of the relevant national security committees 
sent a letter to President Obama asking that he provide 
Congress answers to a number of basic questions, including:
    
 What is the Administration's detention strategy?
    
 Will the Administration give key stakeholders a 
voice before it imports terrorists into the United States?
    
 Can the Administration guarantee its ability to 
effectively detain and prosecute detainees on U.S. soil?
    
 How will the Administration control the movements 
and communications of the detainees in the U.S.?
    Nearly a month later we have not received a response--these 
questions remain unanswered. There has been no consultation 
with the Congress.
    The concerns we raise are bipartisan--they reflect a deep 
anxiety shared by Americans across this country.
    After much delay and with the prospect of facing the 
committee markup of H. Res. 924 without a briefing, the 
Administration finally sent witnesses last Thursday to discuss 
the decision in a classified session. We were underwhelmed by 
the information we received and left feeling that the session 
taught us nothing new. Rather, the session made us question 
whether there was any legitimate policy rationale underlying 
this decision. Time and time again in the briefing, we did not 
receive a clear answer as to why the Administration made this 
decision. Instead, we were basically told to accept the 
decision and move on.
    We dissent from H. Res. 924 as reported because we are not 
ready to move on. We cannot accept this decision in silence. 
Transferring detainees into U.S. territory, giving the self-
professed mastermind of the 9/11 attacks a platform to spread 
his venomous ideology, is a matter of public policy where the 
record underlying the decision should come to light.
    The resolution of inquiry, as originally drafted, would 
have provided the American people answers to questions the 
Administration has failed to provide, such as: on what policy 
grounds did the Administration decide to detain in the United 
States Khalid Sheikh Mohammed and the four co-conspirators; how 
does this keep America safe; and why did the Administration 
decide not to use the commission system that this committee 
recently reformed to prosecute those responsible for the 
attacks on the Pentagon and New York City?
    This committee has tried to get this information from the 
Administration. Unfortunately, even a classified session could 
not induce an open and transparent discussion. If the 
representatives of the Administration cannot talk clearly and 
answer basic questions, then our only choice is to let the 
written record speak for them. Nine months after the President 
signed the Executive Order we have had no consultation and we 
remain unable to get a straight story.
    Simply asking for the Administration to comply with the 
existing law, as the Chairman's substitute requires, does 
nothing new. It invites the Administration to continue the 
status quo of handing the Congress pre-cooked decisions without 
engaging the Congress on the risks and benefits of its 
decisions. By not adopting the underlying resolution the 
majority voted against learning more about the President's 
controversial decision and stood against revealing to the 
American people the full story behind the decision.
    We believe that if the President can give Khalid Sheikh 
Mohammed all the constitutional rights associated with being 
detained and prosecuted in the United States, then he should 
also give the American people the right to understand the basis 
of his decision. We deeply regret the majority chose not to 
support the underlying resolution. As a result, we failed to 
exercise the oversight our constituents expect and deserve.

                                   Howard P. ``Buck'' McKeon.
                                   Mac Thornberry.
                                   W. Todd Akin.
                                   J. Randy Forbes.
                                   Jeff Miller.
                                   Joe Wilson.
                                   Frank A. LoBiondo.
                                   Rob Bishop.
                                   Michael Turner.
                                   John Kline.
                                   Mike Rogers.
                                   Trent Franks.
                                   Bill Shuster.
                                   Cathy McMorris Rodgers.
                                   K. Michael Conaway.
                                   Doug Lamborn.
                                   Rob Wittman.
                                   Mary Fallin.
                                   Duncan Hunter.
                                   John C. Fleming.
                                   Mike Coffman.
                                   Thomas J. Rooney.
                                   Todd Russell Platts.