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So I think really that's what we are involved in here, trying to find what that appropriate balance is, what was, should have been, should be going forward. We found a balance in this Committee which we unanimously endorsed, only to see it changed in the PATRIOT Act when it went to the Rules Committee.

And so I just want to generally thank the Chair for the series of hearings and these witnesses for being here today to help us try to find that balance.

Now, my colleague on the other side has made a number of comments, which I could tell each of you are anxious to respond to, and him having run out of time, perhaps I should give Ms. Pearlstein at least an opportunity to respond.

Ms. PEARLSTEIN. Thank you very much, and thank you for your comments.

I want to just respond briefly to the suggestion about the prosecution of individual acts of torture and abuse that have been identified by the Pentagon as occurring in U.S. detention facilities overseas. A handful of these have been prosecuted under the Uniform Code of Military Justice. A much larger number of them, to the extent they've been dealt with at all, have been dealt with by administrative or incredibly light disciplinary punishment; that is, revoking of mess hall privileges. The vast majority of them have yet to be addressed. This is a failure of the Department of Justice. This is a failure of the Pentagon. This is why we believe an independent commission is needed to look at these things.

On the point of why the international community and many Americans may be frustrated by this

Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from Arizona Mr. Franks.
Mr. NADLER. Mr. Chairman, point of order.

Chairman SENSENBRENNER. The gentleman from Arizona Mr. Franks is recognized.

Mr. NADLER. Mr. Chairman, point of order.

Chairman SENSENBRENNER. The gentleman will state his point of order.

Mr. NADLER. Mr. Chairman, it has generally been the practice of this Committee that witnesses are permitted to finish the sentence that what they're saying will not be interrupted

in midsentence

Chairman SENSENBRENNER. The rules state that the Chair has the prerogative to recognize Members and to enforce the time limits. The Chair is enforcing the time limits, and the gentleman from Arizona Mr. Franks is recognized.

Mr. FRANKS. Thank you, Mr. Chairman.

Mr. Chairman, sometimes an open, democratic Republic like the United States of America is so transparent that both its warts and its qualities are seen before the world, and that's a healthy practice. But, Mr. Chairman, in recent days we've seen and heard comparisons of the policies of the United States and the practices even in prisons with the Soviet gulags, that somehow the United States has become a negative for the cause of human freedom in the world. And I find that to be something that completely defies reason in the mind of any person who has any historical view of the

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And I think sometimes we do a great disservice to the cause of human freedom when we tear down the greatest force for human freedom that the world has ever known, and that's the United States of America. And, Mr. Chairman, having said that, I'd like to direct a couple of questions to Dr. Zogby.

Dr. Zogby, in your recent testimony, you made the complaint that the Justice Department had detained immigrants in the aftermath of the 9/11 attacks, but isn't it true that the investigation of these individuals had absolutely nothing to do with the PATRIOT Act, and, in fact, these events occurred before the PATRIOT Act was even enacted; is that correct?

Mr. ZOGBY. Some of them were before, and some of them were after. The call-ups that occurred following this in October, and then later on, I think, in January of 2002 and special registration went well beyond the initial round-up, the numbers of which we actually don't know. They were making numbers public, and at one point they stopped making numbers. People got stuck on the 1,200, but frankly the numbers appeared to go much higher.

We don't know the outcome of all of those. There have been independent reviews, both within the Department of Justice and by groups outside, who have interviewed several of the people, both still here in the United States and those overseas. The inspector general's report, I think, was very clear on the number of those cases that reported abuse, reported horrific treatment within the prisons. And I think it is important to recognize this is an issue that requires closer scrutiny.

Ms. TAPIA RUANO. If I may also respond to that question?

Mr. FRANKS. Let me ask an additional question, Dr. Zogby, and then you feel free to respond.

In your written testimony you also mentioned that the detainees—in Guantanamo Bay in general, but isn't it a fact that those being held in Guantanamo Bay are not being detained pursuant to any authority contained in the PATRIOT Act? And, in fact, if the PATRIOT Act was repealed today, would it have any effect on the status of these detainees in Guantanamo Bay at all?

Mr. ZOGBY. I'm not aware and can't speak to that issue, but I will tell you the issues I mentioned were Guantanamo and other locations around the world. And I was speaking about that in the context of what it has done to our image internationally.

And I want to address that and want to address as well the remarks raised by Congressman Lungren. The issue of torture. You know, once we're authorized the use of practices that previously were considered and in international law are considered torture, and lowered the standard of what constitutes torture so that now sleep deprivation, use of creating stress in those under detention, and even physical abuse to some degree is not constituting torture, then of course the number of those cases that we're going to prosecute are going to be less because we absolve people of priority of torture by saying this no longer constitutes torture.

And this is what concerns me is that we have governments in the Middle East and elsewhere in the world who now say, we do not torture people, we do what the United States of America does. That

It's not covered in the PATRIOT Act, but it is an issue that we ought to be concerned about.

Mr. FRANKS. Dr. Zogby, just for the record, I think to suggest that deliberate routine torture is the committed policy or the deliberate policy of the United States defies any sort of credibility.

Mr. ZOGBY. Sir, I didn't write the memos, I didn't write the memos; the memos are there. There is a paper trail about what we have done. And I think that the degree to which we continue to deny that we've done it, we do not look good in the eyes of the world, nor should we feel good about ourselves as we face the American people. We have an issue that must be addressed, and it will be addressed either by us or future generations

Chairman SENSENBRENNER. The gentleman's time has expired. The gentleman from New York Mr. Nadler.

Mr. NADLER. Thank you, Mr. Chairman. And let me express my appreciation for your civility to the witnesses.

Ms. Pearlstein, you talked about 12,000 prisoners in major new permanent detention. Section 412 of the PATRIOT Act, I think Ms. Tapia Ruano mentioned that under section 412 the Attorney General can detain alien terrorist suspects that he designates as such for up to 7 days, and that he must certify he has reasonable grounds to believe et cetera. Within 7 days the Attorney General must initiate removal of criminal proceedings or release the alien.

The President, under military order number 13, allows the Secretary of Defense to detain designated alien terrorist suspects within the United States without express limitation and condition, and apparently without any length of time restriction. Under what legal authority did the President issue that order? And how do they get around the 7-day restriction, which was very carefully negotiated in this Committee in section 412 of the PATRIOT Act?

Ms. PEARLSTEIN. I think the short answer to your question is there is no clear answer from the Administration to what the basis of the legal authority is, and I think it is important to distinguish

Mr. NADLER. Has that been challenged in court?

Ms. PEARLSTEIN. The basis of the legality of the detention of people being detained at Guantanamo Bay, that people being detained in the United States, in particular Jose Padilla, who was subsequently released following a ruling of the Superior Court, and the detentions in Afghanistan and Iraq have been challenged in U.S. courts only in the context of civil litigation challenges brought by people who were subsequently released from detention, challenging acts of torture and abuse that they were subject to while in detention.

There is currently no mechanism of which I'm aware and no suits or any other proceeding through which I'm aware of anybody held in custody in Afghanistan and Iraq to challenge the legality of their detention in U.S

Mr. NADLER. Under section 804 of the PATRIOT Act, I think you said, giving jurisdiction abroad,why can't you get a writ of habeas corpus?

Ms. PEARLSTEIN. Section 804 of the PATRIOT Act provides only that the Department of Justice now has jurisdiction to prosecute of

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Mr. NADLER. But does not give jurisdiction for the defense attorney to question his intentions.

Ms. PEARLSTEIN. Under that particular provision. All that is about is the U.S. Government's prosecutorial authority. The Federal habeas statute, which exists on the books separate from the USA PATRIOT Act, is still on the books. To my knowledge it has not been deployed by a current detainee abroad.

Mr. NADLER. Thank you.

Ms. Tapia Ruano, is it true that immigrants who have been found eligible for bail have been kept from being released?

Ms. TAPIA RUANO. Yes. And it's even more outrageous to consider that immigrants who have been granted legal permanent residence after their full merits hearings have also, as a result of 9/11, detainee status been retained in jail until they received a clearance from the United States.

Mr. NADLER. Under what authority?

Ms. TAPIA RUANO. Under the regulation that allows individuals to be kept under-it's not a regulation, I'm sorry, under the understanding of policy memos—I can't point to them directly because we haven't seen them in writing, but we know it exists—but it is a policy, it's a cooperation that until the individual is "cleared by the FBI, such individual is not released, regardless of the decision by the agency."

Mr. NADLER. Regardless of the decision of the agency. And why aren't people subject to habeas corpus release?

Ms. TAPIA RUANO. Based on my understanding of the law, until those individuals are subject to some final order, those individuals, in fact, don't have an opportunity to file a habeas. Since the Real ID Act was passed very recently, now I would suspect—and I haven't been able to study it well enough to advise you—but I would suspect that that would also limit any right that individuals have to take habeas court proceedings if it involves immigrationrelated relief.

Mr. NADLER. So an immigration-related case, even after they have been found eligible for bail, they can be detained indefinitely?

Ms. TAPIA RUANO. The individuals normally—and this happens today-individuals, noncitizens, can be detained after they have been granted bail by a judge by having the agency, the prosecutor, issue a stay of that order

Mr. NADLER. The prosecutor or a court?
Ms. TAPIA RUANO. The prosecutor.
Mr. NADLER. The prosecutor can stay the court's judgment?
Ms. TAPIA RUANO. Absolutely. And that happens every day.

Mr. NADLER. Do you know of any other area of law where a prosecutor can overrule a judge?

Ms. TAPIA RUANO. I'm unfamiliar with other areas of law, so I can't really answer that question.

Mr. NADLER. Anybody on the panel know of any other area of law where a prosecutor can overrule a judge's decision to release a person on bail?

Mr. Pitts. Well, it is happening right now. The Supreme Court of the United States decided in the Rasul case a year ago, the

tled to a lawyer and to Federal court review, and that has not happened

Chairman SENSENBRENNER. The gentleman's time has expired. The gentleman from North Carolina Mr. Coble.

Mr. COBLE. I thank the Chairman. I thank the witnesses for being here.

I too want to thank Mr. Scott and Members of the Democrat and Republican side of the aisle and staffers who have worked with me as we conducted nine oversight hearings under the Subcommittee on Crime, Terrorism, and Homeland Security, and I think this is the 12th hearing. And I take great umbrage, Mr. Chairman, when I hear people say, well, you all are trying to ram through the PATRIOT Act.

We're not trying to ram through it at all. After nine hearingsand, by the way, the nine hearings were very productive, I think. Now, in some instances the witnesses departed from the PATRIOT Act, as I may do in my statement, and I was generous about that, and I didn't admonish anybody. But I've heard some folks claim that the United States has the worst human rights record in the world. Folks, that boggles my mind. I'm not suggesting that you all said that; others have said that to me. Conversely, I think we probably have one of the best human rights record than anybody in the world. Perfect? No, not by any means, but far more than most countries.

Abu Ghraib, do I support what was done there? Indeed not. But, folks, I'm not going to use a broad paint brush to portray our men and women in the armed services as being human rights abusers. Now, there were a couple, perhaps a limited number, of stupid acts that have been addressed through a court martial, I'm told, and that is, indeed, appropriate.

I guess what gets my juices flowing, Mr. Chairman, is when I see these thugs, whose faces are concealed by masks that cover their face, anxiously waiting to behead innocent hostages, when I see that on the one hand, which is a 1-day news story, and then we hear about Abu Ghraib, and—and again, I'm not defending Abu Ghraib, but the Abu Ghraib story appears to be eternal. The thugs who are anxious to behead innocent hostages is a 1-day story and obviously not newsworthy. Folks, it's damn newsworthy to me and to most Americans.

And I think these hearings are healthy; I think we are plowing sometimes new ground, Mr. Chairman. Sometimes we are plowing the ground that has been plowed nine times before, but I don't mind doing that if we can get to the truth, if we can improve the situation.

Dr. Zogby, I think you mentioned about 9/11. It's a day that will, indeed, live in infamy. We were minding our business, and then we were attacked, and over 3,000 people killed, and you say many Arab Americans, inexcusable. And if I appear to be subjectively involved, I am subjectively involved. And before I get too subjectively involved, before the Chairman comes down on me, before that red light illuminates, I'm going to yield back my time.

Chairman SENSENBRENNER. The gentleman from Maryland Mr. Van Hollen.

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