Thirteen hundred miles south of Washington, in Guantanamo Bay, Cuba, the United States has built a detention facility to hold and interrogate suspected terrorists and other enemy combatants.

Detainees began being brought to Guantanamo in January of 2002. Seven hundred and fifty-nine detainees have been held there.  About 454 have been released or have died, four from apparent suicides.  As of last week, 305 detainees remain.

Of those, we understand approximately 60 to 80 have been cleared for release, but are still being held because of difficulties sending them elsewhere.  Only four detainees have been formally charged and it
is reported that the Defense Department plans to prosecute another 60 to 80 detainees.

The administration has repeatedly called those individuals at Guantanamo "the worst of the worst" and there are bad people there. However, today, one of today's witnesses, Professor Denbeaux, has issued reports that challenge this assertion.

This facility was established following a December 2001 Office of Legal Counsel memo co-written by John Yoo that examined whether Guantanamo might be turned into a legal hybrid, wholly under United
States control, but beyond the reach of the United States courts. The Administration lawyers' theory was that since Guantanamo is not part of the territorial United States, the normal legal strictures could be avoided.  However, once turned into a reality, this new facility has come under criticism, been the subject of many court challenges, and has harmed our nation's standing abroad.

For a period of more than 30 months, the Bush administration continued to hold these detainees at Guantanamo, without providing them with any additional judicial or administrative review of their detentions.

In June 2004, in Rasul v. Bush, the Supreme Court ruled that the reach of the U.S. courts did extend to Guantanamo and the prisoners held there.  After that ruling, the executive branch granted the detainees some administrative review, although this process, too, has been criticized.

All detainees were given a combatant status review tribunal or a CSRT hearing.  This was a one-time hearing to evaluate whether they were properly classified as an enemy combatant.  Detainees were also given an annual review before an administrative review board, but this did not examine if their detention was lawful.

Instead, the validity of each detention was assumed and the review process only allowed each detainee to argue that he no longer constitutes a threat.

For the remaining limited number of detainees, they were to be tried by military commissions.  However, the procedures initially put in place for those commissions by the administration were eventually struck down as inadequate by the Supreme Court in the Hamdan decision. The court ruled that the trials at Guantanamo had to be based on statute.

This led the Congress to pass, last fall, the Military Commissions Act.  I voted against this legislation because it allowed hearsay evidence, created a separate and lesser system of justice, and, also, eliminated the right of habeas corpus for all of Guantanamo's detainees.

The 60 to 80 detainees that the department intends to try will be put through the military commission process, although when those hearings will take place is unknown.

Now, it is six years after the first detainees were brought to Guantanamo and the administration still has not yet tried a single detainee, not in any U.S. criminal court and not by the military commissions, and only one detainee, David Hicks, has pled guilty.

In addition, new concerns have been raised about the legal rights given to Guantanamo detainees, not just by outside scholars, but by the very military officers who personally participated in the process.

In fact, over the last few months, several military officers have publicly raised concerns about the procedures now in place.  First, Lieutenant Colonel Stephen Abraham, who served on the review board in the CSRT process, has said the DOD pressured him and others on the CSRT review boards to rehear a case and explain, quote, "what went wrong," end quote, when the CSRT issued a decision that one of the detainees should not be classified as an enemy combatant. Lieutenant Colonel Abraham also complained about the evidence being presented to the CRTs in order to determine detainee status.  He said it was often generic, outdated, incomplete, and that no controls were in place to ensure that evidence of innocence was being disclosed. Second, the Defense Department's chief prosecutor, Colonel Morris Davis, has recently resigned over his concerns about how the military commissions process has been politicized.

Colonel Davis was previously one of the staunchest defenders of Guantanamo.  Colonel Davis has written a op-ed in the New York Times and an article for the Yale law journal this year arguing that he and his prosecutorial staff at DOD could prove the critics wrong by holding full and fair trials at Guantanamo that would live up to the standards of American and international justice.

But on October 4 of this year, Colonel Davis resigned from his position, after concluding that full, fair and open trials were unlikely at Guantanamo.  Colonel Davis has stated to me yesterday that the convening authority, which is supposed to be independent and perform certain evaluations, has been compromised and politicized.

Colonel Davis has stated to DOD and publicly that the prosecution process has been politicized, that the convening authority and its legal advisor would direct the prosecutions' pre-trial preparation, including directing the office about what evidence to use, what charges to file, and that his efforts to ensure that the military commissions would be open and fair were being overridden by administration officials who  believed it was more important to get convictions before the 2008 elections.

As Colonel Davis told the Washington Post on October 20, this is a quote, "There was a big concern that the election of 2008 is coming up.  There was a rush to get high interest cases into court at the expense of openness," end quote.

I invited Colonel Davis to testify at this hearing.  However, the Defense Department has ordered him not to appear.  That, indeed, is very disappointing.

We assured the administration that Colonel Davis would not be asked about pending and open cases, but we were told simply that Colonel Davis was active duty military and because he was active duty military, they could issue an order that he had to follow. I think this is a real shame that we will not have Colonel Davis as a witness today.  I think he has an important perspective.  I wish the Administration would allow him to appear.

Unfortunately, I have to conclude that by prohibiting Colonel Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantanamo.

Clearly, the concerns that have been raised by Lieutenant Colonel Stephen Abraham and Colonel Morris Davis need to be discussed and evaluated.  I believe there also needs to be an examination of what is happening at Guantanamo, why cases are not being prosecuted, what needs to be done with detainees who can't be charged and what legal rights should all detainees be afforded.

That is the purpose of this hearing.