PROPOSALS FOR REFORM OF THE
MILITARY COMMISSIONS SYSTEM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 30, 2009
__________
Serial No. 111-26
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois TOM ROONEY, Florida
BRAD SHERMAN, California GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., STEVE KING, Iowa
Georgia TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
JULY 30, 2009
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Member, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties.............................. 4
The Honorable William D. Delahunt, a Representative in Congress
from the State of Massachusetts, and Member, Subcommittee on
the Constitution, Civil Rights, and Civil Liberties............ 6
WITNESSES
The Honorable David Kris, Assistant Attorney General, National
Security Division, Department of Justice
Oral Testimony................................................. 8
Prepared Statement............................................. 10
The Honorable Jeh Charles Johnson, General Counsel, Department of
Defense
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Colonel Peter R. Masciola, USAFG, Chief Defense Counsel, Office
of Military Commissions--Defense
Oral Testimony................................................. 38
Prepared Statement............................................. 41
Major David J. R. Frakt, USAFR, Lead Defense Counsel, Office of
Military Commissions--Defense
Oral Testimony................................................. 90
Prepared Statement............................................. 92
Mr. Steven A. Engel, Dechert LLP
Oral Testimony................................................. 108
Prepared Statement............................................. 111
Mr. Eugene R. Fidell, Senior Research Scholar in Law and Florence
Rogatz Lecturer in Law, Yale Law School
Oral Testimony................................................. 123
Prepared Statement............................................. 126
APPENDIX
Material Submitted for the Hearing Record........................ 149
PROPOSALS FOR REFORM OF THE
MILITARY COMMISSIONS SYSTEM
----------
THURSDAY, JULY 30, 2009
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:55 p.m., in
room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Nadler, Delahunt, Jackson Lee, and
King.
Staff present: David Lachman, Majority Subcommittee Chief
of Staff; Heather Sawyer, Majority Counsel; Matthew Morgan,
Majority Professional Staff Member; and Paul Taylor, Minority
Counsel.
Mr. Nadler. Ladies and gentlemen, unfortunately the hearing
is going to have to wait on the votes on the House floor.
As you can see, there are 8 minutes and 29 seconds, which
probably means closer to 10\1/2\ minutes, left on the first
vote. But after that, there are 14 more votes, most of them 2-
minute votes.
But there is a motion to recommit, which is a 10-minute
debate and a 25-minute--and a 15-minute vote, so it is probably
going to be about an hour. And I apologize, but the hearing is
going to have to wait for those votes to be completed.
So thank you for coming, but we just have to wait for the--
I apologize to the witnesses, but thank you.
[Recess.]
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights and Civil Liberties will come to
order, with the agreement of the minority. And we expect a
minority Member here shortly.
I recognize myself--excuse me--first for an opening
statement.
Today the Subcommittee--and let me, before I do the opening
statement, I apologize for everyone here, including the
witnesses, for the fact that this is almost 2 hours getting--
late getting started, but that was unavoidably, as you know,
because of the votes, which I assume you saw up there.
And you can thank everybody there. We now have, by
unanimous consent, 2-minute votes, not 5-minute votes, or we
would be there another hour.
I now recognize myself for an opening statement.
Today the Subcommittee examines proposals for reform in the
military commissions system and, more importantly, how we in
Congress can work together productively and with the
Administration to clean up the terrible legacy of the Bush
administration's detention policies in a manner that provides
us with a legitimate legal framework going forward.
Over the past 7 years, approximately 800 individuals have
been detained at Guantanamo, Cuba, with some 500 already having
been released before President Obama took office in January.
In those 7 years, only three detainees have been convicted
of terrorism offenses using the military commissions, and
approximately 230 individuals remain at the facility.
Most of these men have been held for at least 4 years. Some
have been detained for more than 6 years. By contrast,
approximately 200 individuals have been charged with
international terrorism, prosecuted, convicted and sentenced to
long prison terms using our normal Article III Federal courts.
These numbers speak for themselves, yet the Obama
administration, after initially halting use of the military
commissions and beginning an in-depth case-by-case review of
the individuals still being detained at Guantanamo, has said
that the commissions are necessary.
Why? The general explanation is that military commissions
provide the flexibility that is necessary to account for ``the
reality of battlefield situations and military exigencies,''
such as chain of custody concerns, the need to use hearsay
statements, and an appropriate test for determining whether
incriminating statements were coerced or voluntary under the
circumstances.
This might explain the need in cases where an individual is
caught in the heat of battle, but it does not explain the need
for military commissions in other circumstances.
My concern remains, as I articulated at our hearings a few
weeks ago, that we may be creating a system in which we try you
in Federal court if we have strong evidence, we try you by
military commission if we have weak evidence, and we detain you
indefinitely if we have no evidence. That is not a justice
system.
Mohammed Jawad's case, which was again before a Federal
judge today, provides just one example. At our hearing a few
weeks ago, Lieutenant Colonel Vandeveld, the lead military
prosecutor responsible for bringing Mr. Jawad to justice in the
military commission system, testified that he resigned because
he could not ethically or legally prosecute the case.
After discovering exculpatory evidence had been withheld
from the defense and determining that Mr. Jawad's confession,
the only evidence against him, had been obtained through
torture, Lieutenant Colonel Vandeveld was unable to convince
his supervisor to reach a plea agreement that would have
allowed Mr. Jawad's release and return to his family after
nearly 7 years in Guantanamo.
Convinced that it was not possible to achieve justice
through the military commission system, Lieutenant Colonel
Vandeveld felt he had no choice but to resign his post.
A military judge and a Federal judge have since ruled that
Mr. Jawad's confession was obtained through torture. In the
Federal habeas corpus proceedings, the judge has called the
case ``an outrage'' and has urged the Administration to send
Mr. Jawad, who may have been 12 years old when captured in
2002, home.
It is my understanding that at a hearing this morning the
judge, in fact, ordered his release.
Mr. Jawad's case is not an anomaly. In 26 of the
approximately 31 habeas corpus cases brought by Guantanamo
detainees and decided so far, Federal judges have concluded
that the government does not have sufficient evidence to
justify or continue the detention.
These numbers are staggering--not one case, not two, but in
85 percent of the cases when an individual finally has gotten
meaningful review, Federal judges have found that there was no
grounds for detention. This is a stain on American justice.
Not only has the system served as a tremendous recruiting
tool for our enemies, it has proven legally unsustainable and
unjust. We would challenge such a system set up by another
country to detain and try Americans. We should demand no less
of ourselves.
The detainees at Guantanamo and other individuals who we
may capture today or tomorrow are accused terrorists. They are
not terrorists. They are accused terrorists. Some may be
terrorists, but right now they are accused terrorists. They
have not been proven to be terrorists.
And while officials in the previous Administration were
fond of claiming that its detainees at Guantanamo were the
worst of the worst, the Bush administration released the vast
majority of them, approximately 500 in all. Apparently the Bush
administration did not really think they were the worst of the
worst.
The people who we have detained because they were turned
over to us by someone with a grudge or by someone who wanted to
collect a bounty do not belong in custody.
We have an obligation to determine who should and should
not be imprisoned and to afford fair trials to those we believe
have committed crimes. This is especially important if our
government plans to seek prison sentences or to execute those
convicted.
There is no doubt that keeping America safe is paramount.
We must decide how to deal with these individuals in a manner
that ensures that our Nation is protected from those who would
do us harm, in a manner that is consistent with our laws, our
treaty obligations and our values.
We are the United States of America, and we have traditions
and beliefs worth fighting for and worth preserving. This
problem will not go away simply because we close Guantanamo. We
are still fighting in Afghanistan and Iraq. We are still
battling terrorists around the world.
We will continue to have to intercept and detain
individuals who have attacked us or who threaten us. We need to
be sure that, however we handle these cases, we do not conduct
kangaroo courts.
This debate has been dominated by a great deal of fear-
mongering. That is no way to deal with a problem of this
magnitude. Fanning the flames with the unfounded claim that it
is a threat to our national security to transfer individuals to
the U.S. for detention and trial defies logic and reality.
We have long housed and prosecuted dangerous criminals and
terrorists in my district and elsewhere. It is an insult to our
law enforcement and military to suggest that they cannot do the
same with regard to those individuals that we have been holding
at Guantanamo.
Others have argued that because some individuals released
from Guantanamo have turned to battle, we must now hold all
others forever. But we are not a police state. In order to
imprison anyone, we must have sufficient evidence to do so.
Much as some people would like to drop detainees down a
hole and forget about them, this is simply not an option
legally or morally. It is also not necessary.
We are not the first country in history to have to deal
with potentially dangerous people. Indeed, this is not the
first time this country has had to deal with potentially
dangerous people.
I do not underestimate the enormity of the challenge both
from a security standpoint and a legal one, but we can and will
find solutions that honor the rule of law, and in so doing keep
us safe.
I look forward to the testimony of our witnesses with
confidence that you will be able to provide guidance as we look
forward. I thank you. I yield back the balance of my time.
Now, did the gentleman from Iowa wish to give an opening
statement for the minority?
Mr. King. I would like to give an opening statement
representing myself, Mr. Chairman.
Mr. Nadler. The gentleman is recognized.
Mr. King. Thank you, Mr. Chairman.
I wanted to give my thanks and appreciation to the
witnesses that are about to testify and this hearing that I am
not particularly enthusiastic about having--I have watched this
unfold over the last years since September 11, and it appears
to me that we are moving in a direction away from national
security and a direction towards making us more vulnerable to
attack.
I have gone down to Gitmo and visited Gitmo. I don't
believe that there has been any place or any time in history
that--I won't declare them to be, let's say, accused
terrorists. I will say they are enemy combatants.
And I don't think enemy combatants--and the implication
includes as well prisoners of war--that have ever been treated
as good as the inmates are down at Guantanamo Bay--air
conditioned facilities, three squares a day, nine choices from
the menu, 100 minutes of prayer time every day--the list goes
on.
And yet our guards are attacked every day, multiple times a
day, and we don't have any recourse to punish those prisoners.
But we are here to examine the path that might be taken and
a path that might be opened, and I am concerned that it might
end up in opening up our prison gates and turning people loose
onto this society that are the worst of the worst.
And I don't concede that they are anything else. That is
the reason they are there. This Administration wants to find a
way to relieve themselves of the burden of the--you know, the
inmates down at Guantanamo Bay.
I have read the executive order. The date of its--the drop-
dead date to empty out Guantanamo Bay is January 22, 2010. It
hangs there on the bulletin board in the commons room at
Guantanamo--or the commons area at Guantanamo Bay, in English
and in Arabic, so that when they gather together after their
soccer game or around the edge of their foosball table they can
read that promise from the President of the United States that
they will not be there 1 day longer than January 22, 2010.
We heard yesterday before a hearing from Mr. Forbes of
Virginia that he had just returned from there within the last 2
weeks, and he articulated a path by which we might be
considerably more vulnerable, and that path is the one that is
charted out before us now.
So I am concerned that if we bring people to the United
States, judges do things we cannot anticipate. And if we had
100 percent confidence that we had picked up battlefield
evidence and that we could convict people that were actually
guilty with that evidence and release people that were not
guilty with that evidence, then I wouldn't have any trepidation
about bringing them to the United States and trusting a Federal
judge, or whatever the mechanism might be.
But in the meantime, we are dealing with what Congress has
enacted and the President signed into law, a military
commission system that granted unlawful enemy combatants more
rights and more procedural protections than they had ever
enjoyed before anywhere in the world. And that is all
throughout human history.
These protections include the presumption of innocence; the
imposition of the burden of proof on the prosecution; the right
to counsel, either military or civilian, at American taxpayers'
expense, at the discretion of the accused; the right to be
presented with the charges in advance of the trial; access to
interpreters, as we do in this country, so that they understand
the proceedings and the charges against them.
And there will be--there is a prohibition against any
negative inference from a refusal to testify. They aren't
compelled to testify or be a witness against themselves or
anyone, and so that is--access to reasonably available evidence
and witnesses, access to investigative resources as necessary
for a full and fair trial. The list goes on.
And so however this unfolds, I want America to remain as
safe as it has been since the September 11 attacks in 2001. I
think that this Congress acted quickly. I think that the
military conducted themselves within the law in an honorable
fashion. And I understand the difference in opinion that we
have.
But in the end, no nation respects the rule of law more
than the United States of America. No nation has treated its
enemy combatants as well as we have treated these. No nation
has provided air conditioning in the Caribbean the way we have.
And we need to also find a way to resolve this, and I
understand that. It is a difficult conundrum that has been
accelerated by the executive order, which I think was motivated
more from a political judgment than it was a judgment of
reality.
And I will support the President in any alteration he might
have of that that will provide more safety for the American
people. I look forward to the testimony.
And I yield back the balance of my time.
Mr. Nadler. I thank the gentleman.
And I now recognize the gentleman from Massachusetts for an
opening statement.
Mr. Delahunt. Yes, I didn't intend to give an opening
statement, but I think it is important that I respond to my
good friend from Iowa.
I would make the point that national security and justice
are not exclusive. In fact, I would submit that Guantanamo has
been a prolific tool for terrorists to multiply and to recruit
others. The existence of Guantanamo has led to an increasing
number of terrorists all over the world. We have a different
view of that.
Now, I am glad to hear that my friend has been down to
Guantanamo. In my former life, I happened to be the state's
attorney up in the greater Boston area. I have been to a lot of
prisons. I have put a lot of people there, in some cases for
the rest of their lives. But I always hoped I was doing
justice.
You know, the concept of a presumption of innocence is not
something that threatens me. And I think that presumption of
innocence is a genuine American value. That is what we are
about. That is what we are truly about.
And I have been a severe critic of the Bush administration,
and I am sure that, you know, some here have applauded the
policies of the former President and Vice President. But I
think it is interesting to note that in excess of 500 of the
worst of the worst were released by the Bush administration.
That seems somewhat inconsistent to me.
But I also think it is interesting that while the gentleman
from Iowa went and had the tour of Guantanamo and seems to know
something about the detainees there and their daily existence,
I am sure that he did not have an opportunity to talk to them.
He is shaking his head in the affirmative. I will yield to
the gentleman. I would like to hear what conversations he had
with the detainees.
Mr. King. Well, thank you for yielding, and I will note
first that those that have been released are the best of the
worst, and the ones left are the worst of the worst.
But I did talk to some of them, and the conversation was
limited, and I think that is what the gentleman from
Massachusetts expects. One of them came over to the fence and
he said, ``I don't have a Russian-language Koran. That is
unjust. You must get me a Russian-language Koran.'' So that was
the level of the angst I----
Mr. Delahunt. Did you have an opportunity to have
interaction with them?
Mr. King. That was interaction, yes, although I didn't walk
among them like I might other inmates because----
Mr. Delahunt. Okay.
Mr. King [continuing]. It is too dangerous.
Mr. Delahunt. Well, let me remind the gentleman that both
myself and the Ranking Member--I happen to Chair the
Subcommittee on Oversight of the House Foreign Affairs
Committee, and I have been invited many times to Guantanamo.
And I would have accepted that invitation, as would my
colleague, Mr. Rohrabacher, if we were given an opportunity to
actually sit down with the detainees and inquire of them.
Now, at a hearing--oh, I think it was maybe last week or 2
weeks ago, we had a hearing relative to the interaction between
the Chinese intelligence agents that were provided access to
the Chinese Muslims called Uighurs who are a persecuted
minority by the Chinese. You might have noted over the course
of the past month or so there has been thousands detained.
According to a woman who leads the diaspora, Rabiya Kadir,
who will be with us tomorrow--and I would hope that the
gentleman could come and listen to her--there are 10,000 that
are still missing.
They were given the opportunity over a 10-day period to
interview the Uighurs where they were interrogated, where they
were intimidated, and where they were threatened.
That is what I think we have a right to hear, because--and
it might interest the gentleman that our Republican colleague
Mr. Rohrabacher and I are both convinced that those Uighurs, if
resettled here in the United States, would contribute to the
United States because they are opposed to al-Qaida and Taliban
and any form of terrorists.
I dare say they are more aptly described as the Tibetans
who are persecuted by the Communist Chinese intelligence agents
who haven't been heard from, who have not been heard from.
And I think I will yield there, but I think my good friend
gets the message. Oh, by the way, it wasn't just the Chinese
intelligence agents that were down there. And we know that
their history and their record in terms of human rights, and
the fact that they have executed and tortured Uighurs,
according to our own State Department, for decades now.
In addition to that, there were two--there were several
detainees from Uzbekistan who received--whose intelligence
agents and security agents were also invited in to have the
kind of interaction which I think would be very, very
informative for this panel and for this Congress to have, and
we were denied it.
With that, I yield back.
Mr. Nadler. I thank the gentleman.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing, which the Chair will do only in the
event of more votes or some catastrophe.
We will now turn to our witnesses. As we ask questions of
our witnesses, the Chair will recognize Members in the order of
their seniority on the Subcommittee, alternating between
majority and minority, provided that the Member is present when
his or her turn arrives.
Members who are not present when their turns begin will be
recognized after the other Members have had the opportunity to
ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
I would like to welcome our first panel. David Kris is the
assistant attorney general for national security. Mr. Kris was
an attorney in the criminal division from September 1992 to
July 2000, where he worked primarily in appellate litigation.
As associate deputy attorney general from July 2000 to May
2003, Mr. Kris' work focused on national security issues,
including supervision the government's use of the Foreign
Intelligence Surveillance Act, representing the department at
the National Security Council, and assisting the attorney
general in conducting oversight of the intelligence community.
Mr. Kris also taught at Georgetown University Law School
and served as a non-resident senior fellow at the Brookings
Institution. Mr. Kris graduated from Haverford College in 1988
and Harvard Law School in 1991. Following law school, he served
as a law clerk for Judge Stephen Trott on the Ninth Circuit
Court of Appeals.
Jeh Charles Johnson is the general counsel of the
Department of Defense where he serves as the chief legal
officer of the Department of Defense and legal advisor to the
secretary of defense.
Mr. Johnson began his career in public service as an
assistant United States attorney in the Southern District of
New York, where he prosecuted public corruption cases. He was
in private practice at the firm of Paul Weiss Rifkind Wharton &
Garrison.
In October 1998, President Clinton appointed Mr. Johnson to
be general counsel of the Department of the Air Force. He
served in that position for 27 months.
I am pleased to welcome you both. Your written statements--
and again, I apologize for the delay. Your written statements
in their entirety will be made part of the record. I would ask
each of you to summarize your testimony in 5 minutes or less.
To help you stay within that time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow and then red when the 5 minutes are up.
Before we begin, it is customary for the Committee to swear
in its witnesses.
[Witnesses sworn.]
If you would please stand and raise your right hand to take
the oath.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information and belief?
Mr. Kris. I do.
Mr. Nadler. Let the record reflect the witnesses answered
in the affirmative.
You may be seated.
Mr. Kris?
TESTIMONY OF THE HONORABLE DAVID KRIS, ASSISTANT ATTORNEY
GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE
Mr. Kris. Thank you very much, Mr. Chairman. And thank you
and all of the Members of the Committee for inviting me here to
testify.
Federal prosecution in Article III courts can be an
effective method of protecting national security, consistent
with fundamental due process and the rule of law.
In the 1990's, I prosecuted a group of violent
antigovernment extremists. And like their modern counterparts,
they engaged in what would now be called ``lawfare.'' As a
result of that, the trials were very challenging.
But the prosecution succeeded not only because it
incarcerated the defendants but also because it deprived them
of legitimacy for their antigovernment and other extreme
beliefs.
Military commissions can help do the same for those who
violate the law of war--that is, not only detain them for
longer than might otherwise be possible under the law of war,
but also to brand them as illegitimate war criminals.
To do that effectively, however, the commissions themselves
must first be reformed. And the legislation that is now pending
in Congress is a tremendous step in that direction. If enacted
with the changes that we have suggested, it will make military
commissions both fundamentally fair and effective.
And with that, I think I will stop, and I will be happy to
answer any questions. Thank you.
[The prepared statement of Mr. Kris follows:]
Prepared Statement of the Honorable David Kris
__________
Mr. Nadler. I thank you.
Mr. Johnson?
TESTIMONY OF THE HONORABLE JEH CHARLES JOHNSON, GENERAL
COUNSEL, DEPARTMENT OF DEFENSE
Mr. Johnson. Thank you, Mr. Chairman. Like Mr. Kris, I will
dispense with the full reading of my prepared statement. You
have it for the record. I would just like to make a few
observations very briefly and then look forward to your
questions.
First, I can't help but recall that my career in public
service began 32 years ago this summer, where I spent a lot of
time in this room with my congressman, Hamilton Fish Junior,
who rose to be Ranking Member of this Judiciary Committee when
I was a college intern for him. And I remember him fondly.
It is apparent to me--and I am aware of the sharp
difference of opinion about these issues concerning Guantanamo
and military commissions that exist on this Subcommittee and in
this Congress. And it is my hope that during this session we
can try to educate--respond to your questions in a forthright,
meaningful way.
The President in May decided that the Administration could
go forward with reformed military commissions, after a lot of
consideration and thought by the President personally and by
members of the Administration. In May we in the Department of
Defense proposed five rule changes to military commissions
procedure.
Most significantly, and the one that I am personally most
proud of, is the elimination of any possible use in evidence in
a military commissions trial of statements taken as a result of
cruel, inhuman, degrading treatment.
That one change alone, in my personal opinion, will do more
to restore the credibility of military commissions, and it was
one that we did with the unanimous support of our judge
advocate generals in the military service and a lot in the
military lawyer community.
The Senate, as you know, passed legislation to reform the
Military Commissions Act. That legislation was passed as part
of the authorization bill on July 23. We and the Administration
think that the bill identifies virtually all the issues for
reform and change.
We look forward to working with the Congress, House and
Senate, on further changes that the Administration and the
Congress may wish to make. Mr. Kris and I testified last week
before the House Armed Services Committee concerning that bill.
And we look forward to responding to your questions
concerning the pending legislation or detainee affairs
generally.
One thing I will add concerning Guantanamo generally--and
this was alluded to by the Members of the Committee--I will
submit respectfully that many Members of Congress go to
Guantanamo Bay, come back and are impressed with what they see
today. And I will submit that is not the issue.
The issue is that al-Qaida needs recruitment tools, and al-
Qaida, in fact, uses Guantanamo Bay, Abu Ghraib and other
rallying cries as recruitment tools to their cause. There are
published reports of al-Qaida using Guantanamo Bay as recently
as 2008. Bin Laden personally uses Guantanamo Bay as one of his
bumper-sticker recruitment tools.
So a cross-section of national leaders from John McCain,
President Obama, General Powell--George W. Bush said he would
like to see Guantanamo Bay closed--have all caused--called for
the closure of Guantanamo Bay not just for symbolism reasons
but for reasons of enhancing national security.
This President, when he took office, recognized that large
Federal bureaucracies work best with a deadline and imposed a
deadline on us for doing so. And we remain committed to closing
Guantanamo Bay in this Administration.
Thank you very much. Look forward to your questions.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of the Honorable Jeh Charles Johnson
__________
Mr. Nadler. Thank you.
I will now recognize myself for a period of questioning.
First, Mr. Johnson, you have testified on a number of
occasions that the Administration intends to assert its
authority to detain individuals, relying on the authorization
for the use of military force and the Supreme Court's Hamdi
decision regarding the detention of individuals captured on the
battlefield during wartime, for the duration of hostilities to
ensure that they do not return to the fight.
How does the Administration propose to identify those who
truly are ``individuals captured on the battlefield?'' And what
proves that someone falls into this category? And what is the
process that will be provided to make this determination?
And let me just amplify that a bit. We talk about military
commissions for war crimes. We talk about how we convict
someone of a war crime. But we also have the duty to keep
someone from returning to the fight--to keep combatants off the
streets whether they committed the crime or not.
If you captured someone wearing a Wehrmacht uniform in
World War II in Normandy carrying a rifle, there wasn't too
much question he was a combatant and he was a prisoner of war.
But how do we--the question is what process is there to
determine that someone who claims he isn't a combatant is, in
fact, one if he is captured, A, either near the battlefield or
on the battlefield, or somewhere else?
What process do we--I mean, what kind of process will be--
is afforded after the fact or before the fact?
Mr. Johnson. Well, if you talk about the current population
in Guantanamo, virtually, I think, all of them are suing us in
habeas litigation right now. One of the first things this
Administration did was to revise the definition of what we say
is our detention authority.
We did that in a filing by the Department of Justice in
several of these cases on March 13th, 2009. And what we did was
we are no longer using the phrase ``unlawful enemy combatant.''
And as you noted, Mr. Chairman, we are relying more closely
on the authorization for the use of military force passed by
the Congress in 2001 as informed by the laws of war. And there
is a paragraph that we are now asserting as our detention
authority which will be tested in these habeas cases case by
case.
Mr. Nadler. Okay. The authority is one thing, but how--what
is the process? There has got to be some process for
determining going forward. And yes, the habeas corpus process,
by default, is being used now for people who were in Guantanamo
for a long period of time.
But if we captured someone tomorrow and we suspect he is a
combatant, and he says, ``No, I am not,'' what is the process
for determining whether he is a combatant and can be held for
years?
Mr. Johnson. Well, prior to this Administration coming to
office, what existed was a review process that involved--I am
going to use acronyms--ARBs and CSRTs--Administrative Review
Boards and----
Mr. Nadler. Which the Supreme Court said was----
Mr. Johnson [continuing]. Combatant Status Review--which
has been suspended.
The President called for some process of periodic review--
in other words, if we prevail in a habeas case, we are not
going to just simply throw away the key and forget about the
person. We are going to have a process of periodic review.
Mr. Nadler. What is the initial process, a habeas case?
Mr. Johnson. The initial process is a form of board that
should occur within a period of days after a person is
captured. And we are developing that process now.
Then after a period of time--and we are--this is in the
midst of review right now--whether it 6 months, 12 months--
there will be another look to make the threat assessment, to
review the detention authority, and then after a period of
years there may be some heightened level of review.
But there will be, as the President has called, some form
of periodic review to make a threat assessment that will
involve----
Mr. Nadler. That is making a threat assessment after--but
what due process is there for someone who says, ``You got the
wrong guy. I am not an enemy combatant. I had nothing to do
with this?''
Mr. Johnson. Well, the Boumediene case----
Mr. Nadler. Which case?
Mr. Johnson [continuing]. Granted the Gitmo detainees the
right to habeas.
Mr. Nadler. So you are saying you would have to--the only
process is the habeas process?
Mr. Johnson. No, I would expect, as I said, that there will
be some form of periodic review, initially and then over time,
irrespective of the litigation.
Mr. Nadler. And this is for people captured on or near a
battlefield. Do we still claim the authority to pick up someone
in London or in Peoria and say they are an enemy--whatever we
are calling them now--they are a combatant?
Mr. Johnson. Obviously, Mr. Chairman, it depends on the
circumstances. There is litigation right now concerning the
Bagram detainees where Judge Bates found that those captured
away from Afghanistan had habeas rights. The government has
appealed that. He did not find that with respect to those who
were captured in Afghanistan.
And so we have asserted that those captured away from the
battlefield, as you referred to it, do not have habeas rights
in Afghanistan. With regard to the Guantanamo population, the
Supreme Court has resolved that issue with the Boumediene case.
Mr. Nadler. The time has expired.
The gentleman from Iowa?
Mr. King. Thank you, Mr. Chairman.
Let me pick up where that is. Mr. Johnson, as I understand
what you said--is that those captured in Afghanistan have not
at this point successfully made a habeas claim.
Mr. Johnson. That is correct.
Mr. King. And is it the Administration's position that they
would resist any habeas filings for those that--those enemy
combatants that were picked up in Afghanistan?
Mr. Johnson. Well, we haven't really been tested in that
regard. The Department of Justice has appealed the ruling of
Judge Bates with regard to those captured away from the
battlefield who are detained in Afghanistan, so the implication
of that is that the Administration view, I believe, is that
there should not be habeas for those captured in Afghanistan,
detained in Afghanistan. That is the implication or the--
implication.
Mr. King. It is not certain yet at this point.
Mr. Johnson. With regard to the habeas remedy.
Mr. King. Can you tell me how many have been successful of
Guantanamo detainees with their habeas filing?
Mr. Johnson. I don't have the exact number. The Chairman
made a reference to it. I don't have the exact number offhand.
I am happy to provide that to you.
Mr. King. Let me just suspect--Mr. Kris, do you know that
number?
Mr. Kris. I don't know the exact number either, but what
Chairman Nadler said sounded plausible.
Mr. King. We are dealing with a universe, though, that
would be not those that were picked up in Afghanistan or in--
probably in another terror-sponsoring country, but those that
were picked up either on the streets or any in America, on U.S.
soil, or--do we know of any that have been picked up outside of
U.S. soil that were not on what we would consider to be a
battlefield that have succeeded in a habeas filing?
Mr. Johnson. The way I can answer that question for you,
sir, is that the overwhelming majority of the Guantanamo
detainees were captured in Afghanistan.
Mr. King. Yes.
Mr. Johnson. Okay. I don't have the exact numbers for you,
but I----
Mr. King. No, we will look that down--and I appreciate that
answer.
And I wanted to explore a little bit, too, the--Guantanamo
Bay as a recruitment tool and Osama bin Laden using that as
recently as 2008. I have seen a film that I believe they have
used multiple times that is a film of Guantanamo detainees in
orange suits that are seated with--I believe they are
handcuffed with their hands perhaps in front rather than back.
They show them being sat down all in a group, then back up
again. Have you seen anything like that?
Mr. Johnson. I am sure I have seen that film, yes, sir.
Mr. King. Yeah, and it is--I know it is fairly general. But
I will submit that that film was taken when their--on their
arrival at Gitmo or prior to that rather than anything that is
going on at Gitmo now.
So I will suggest that whatever might happen with the
closing of Gitmo, which I expect will happen by the date in the
executive order, that it will not stop al-Qaida from using
Gitmo as a recruiting tool, nor will they use--if we move them
to a maximum security prison, since we all know that is--the
human rights groups have already raised the issue and contended
that they were inhumane at our Supermax prisons, we end up with
the same circumstance.
Have you contemplated that with regard to the national
security question about the recruitment of al-Qaida?
In other words, to put the--to compress this question down,
does it really do us any good to close Gitmo if we are going to
put people in maximum security prisons and have Amnesty
International declare that they are in an inhumane situation?
Isn't that also a useful tool for al-Qaida?
Mr. Johnson. I would respectfully suggest to the Congress
that it does make a difference that Guantanamo Bay has been
allowed to become that recruitment tool, and we are determined
to create an alternative situation that doesn't.
Certain rallying cries get legs and some don't. And we know
that al-Qaida has been able to use Guantanamo Bay very
effectively, and we are determined to disable them from doing
that. And the way to do that is to close this facility as a
detention facility.
Mr. King. Okay. Under this legislation that you discuss as
part of your testimony, you testified that it would eliminate
the utilization of any evidence that was gathered under--cruel,
unusual and inhuman treatment I believe was the language.
Now, does this bill, then--does it redefine terror--or,
excuse me, does it redefine torture?
Mr. Johnson. The Senate bill would prohibit use of
statements taken as a result of cruel, inhuman, degrading
treatment.
Mr. King. Does it redefine, though, cruel, inhuman,
degrading treatment?
Mr. Johnson. I don't believe that it puts a definition on
that phrase.
Mr. King. Okay.
Mr. Kris, do you----
Mr. Kris. I believe that is right. I mean, the Military
Commissions Act--the prior legislation or the--legislation had
prohibited admission of statements obtained by torture.
This bill goes further following the rule change that Mr.
Johnson referred to in prohibiting admission of statements
obtained by cruel, inhuman, degrading treatment. I don't think
it tries to define that term.
But there is----
Mr. King. I appreciate that.
I saw that light change immediately upon the ringing of the
bell. But I--could I, Mr. Chairman, be indulged for 15 seconds
to conclude a question? Thank you.
Mr. Nadler. [Off mike.] [Laughter.]
Mr. King [continuing]. What I really am trying to find out
here is is the meaning--is waterboarding affected by any of the
language that we have discussed here? Is there any change in
any language that might broaden this out to include
waterboarding where it might have otherwise been interpreted to
not be cruel, inhuman or degrading treatment?
Mr. Kris. Well, in the previous Administration, I think
there was a reluctance to treat or define waterboarding as
torture. I think in this Administration there has been no such
reluctance.
And so that would fall under the--as this Administration, I
think, interprets torture, waterboarding would be out.
Mr. King. But it has not been redefined in law.
Mr. Kris. Well, the torture statute remains the same as it
has been.
Mr. King. Yes. And that is what I wanted to clarify. Thank
you.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
The gentleman from Massachusetts is recognized.
Mr. Delahunt. Thank you.
And again, welcome to both of our witnesses.
It is good to see you again, Mr. Kris.
Mr. Kris. Thank you.
Mr. Delahunt. You know, Mr. Johnson, you used the term
``captured'' at or near the battlefield. I think that was
alluded to by my friend from Iowa.
Well, I mean, the reality is we can--I think it is
important that we understand in many cases the term ``capture''
was a transfer from Pakistani intelligence and authorities to
United States authorities. There was an intervening event. Is
that a fair statement?
Mr. Johnson. It is true that detainees come into U.S.
detention through a variety of means.
Mr. Delahunt. And I know this is not your intention, but to
suggest that they were captured on or near the battlefield I
would respectfully suggest is--or could be interpreted multiple
ways, some of which are inaccurate.
Let me cite the example again of the Uighurs. I am sure you
are aware that they were captured, quote/unquote, or
apprehended, taken into custody in Pakistan.
They were then taken--after fleeing from Afghanistan, where
they were residing because of the fear of Communist Chinese
persecution, and that when they crossed the Pakistani border,
they encountered a tribal group that provided them sustenance
and led them to a Pakistani jail.
And then the leaders of that particular tribal group were
given $5,000 for each of those particular detainees. I am
referring to four of them right now. Does that comport with
your understanding of the situation?
Mr. Johnson. I am not in a position to disagree with your
characterization, Congressman.
Mr. Delahunt. Okay. So I just put that out there because I
think it is very important that we have to understand where our
information is coming from.
In these particular cases, I would suggest it is the
Communist Chinese intelligence services and Pakistanis who sold
them for $5,000 each. So I think it is easy to be on this side
of the dais and talk about being captured at or near the
battlefield.
And that leaves an impression that they were out there with
guns and hiding in the hills and shooting at Americans, when
that is simply not the truth according to very, very solid
information on the American side.
Mr. Johnson. Congressman, let me--may I answer?
Mr. Delahunt. Sure, please.
Mr. Johnson. Yes. As you know, the district court ordered
that the Uighurs be released----
Mr. Delahunt. Right.
Mr. Johnson [continuing]. Last year.
Mr. Delahunt. Right.
Mr. Johnson. I would like to think that given the
circumstances we in this Administration, in our review process,
would have got to the same result on our own.
As you know, we have spent an enormous amount of time
trying to find a country----
Mr. Delahunt. And I know that very well, and I congratulate
you----
Mr. Johnson [continuing]. Successful to a limited extent.
Mr. Delahunt. And I I have to tell you, by the way, that a
Bush undersecretary, an undersecretary that was intimately
involved in this, appeared before the Committee which I Chair
over on the Foreign Affairs side that stated unequivocally that
these Uighurs were wrongly imprisoned and that their entire
story constituted a tragedy.
But some, for whatever their motives may be, continue to
want to create a fear, if you will, among the American public.
And I think that does a huge disservice to what you are trying
to accomplish.
Having said all that, let me pose this question. And I know
the task force is reviewing various plans, and I understand the
difficulties.
Is it still on the table that some--a few--detainees who
have been cleared--that it could be, if you will, adjudicated--
were never involved in any way threatening or--in conduct or
behavior deleterious to the United States might be resettled
into the continental United States? Has that been taken off the
table or is that still----
Mr. Nadler. The gentleman's time is expired, but the
witness may answer the question.
Mr. Johnson. Let me answer the question this way. Whatever
decisions are being made, are being made, I believe, consistent
with national security, consistent with public safety, the
safety of the American people and the rule of law.
We haven't, at this point, so far as I am aware, made such
a determination. There have been a number of transfer decisions
made which I think I alluded to in my prepared statement, and
we are more than halfway through the review process.
But I want to assure everybody here that whatever decisions
we make we make consistent with national security and public
safety.
Mr. Delahunt. I would encourage consultation with the
United States Congress, the appropriate Committees of
jurisdiction.
Mr. Nadler. Thank you.
We will have a second round of questioning, but since for
that--after the votes. But since for that second round of
questioning Mr. Johnson will not be here, I gather, since he
has to leave, we will start the second--I am sorry, we will
start----
Mr. Johnson. Congressman, I am happy to stay as long as you
want me to stay, sir.
Mr. Nadler. Oh, very good. Thank you.
I will recognize the gentlelady from Texas.
Ms. Jackson Lee. Mr. Chairman, thank you, and thank you to
your witnesses. We know that military commissions are--
historically have been established where jurisdictional gaps
exist, but they have not been--and I hope both of you agree--
been created to obliterate or to ignore the importance of due
process.
So I would like to, first of all, quickly ask, do you have
at Guantanamo Bay, to your knowledge, any minors, underage
detainees, at this point?
Mr. Johnson, I am sorry?
Mr. Johnson. I can think of at least two, including one
referred to by the Chairman in his opening remarks, that the
evidence suggests were teenagers at the time they were
captured.
Ms. Jackson Lee. And during the course of your tenure, did
you prosecute underage detainees through the military
commissions?
Mr. Johnson. Are you asking had we?
Ms. Jackson Lee. Yes.
Mr. Johnson. The two detainees that I am referring to have
pending military commissions cases against them.
Ms. Jackson Lee. But previously there were 800, 240 are
left. Did the military commissions prosecute underage detainees
over the course of the 800 that were detained?
Mr. Johnson. I am sorry, I didn't hear the number, ma'am.
Ms. Jackson Lee. I speculated that there were 800
detainees. Over the course of the detainees, did you prosecute
underage detainees?
Mr. Johnson. There are two cases that I just referred----
Ms. Jackson Lee. Only two out of the 800?
Mr. Johnson. There have been three completed prosecutions
so far. I don't believe any of the three completed involved
detainees who were teenagers at any point. I don't believe that
to be the case.
We have seven pending cases right now. One of them the
Chairman referred to.
Ms. Jackson Lee. And only two of those are minor?
Mr. Johnson. That is my understanding, yes.
Ms. Jackson Lee. Thank you. Let me just quickly go to
this----
Mr. Johnson. At some point during their detention they were
minors--you know, the evidence suggests.
Ms. Jackson Lee. You testified--and if this was a question
that has been asked, let me just quickly ask it again--at
several hearings that the Administration intends to assert its
authority provided by the AUMF passed by Congress to detain
individuals deemed dangerous for the duration of these
hostilities.
What, generally speaking, is the class of individuals who
might possibly be detained under this authority regardless of
the opportunity to access the criminal justice system?
Who would fall under this category that would continue to
be dangerous? And would they have any rights to appear before a
commission or any other authority?
Mr. Johnson. Well, as you know, the Boumediene case
determined that the Guantanamo detainees have the right to
habeas in Federal court.
In addition to that, we in the Administration are
developing a periodic review process with respect to any
detainees who are in what the President refers to as the fifth
category, people who are not prosecuted, not transferred, not
released and, for reasons of national security, public safety,
the government determines should be detained for reasons of--
under law of war authority.
And that category of detainees we are determined to develop
a process of periodic review where they are given some access
to evidence, some ability to contest what the government says
about them. And as part of our detention policy review, we are
developing that right now.
Ms. Jackson Lee. If a detainee was to go through the
Federal court system and be criminally acquitted, are they
released or is there an additional detention that you would
request?
Mr. Johnson. Well, as I have stated previously, if we, the
government, determine that there is law of war authority to
detain a person for reasons of national security, safety and
because of a threat assessment, that authority, we believe,
exists--and I am answering just in terms of legal authority,
not what we would actually do.
As a matter of legal authority, that would be true
irrespective of what happens in any criminal prosecution that
Mr. Kris might bring or in a military commission. Now, whether
we would actually do that, in my view, is an entirely separate
matter.
And in the three cases that have been completed, two
received less than life sentences, and they have been
transferred. They are no longer in U.S. detention.
Ms. Jackson Lee. Well, we thank you for your service. But
as I am listening to you--and maybe as this commission finishes
its work--it looks like it would be completely complex and
perplexing to try to close Guantanamo Bay as the President has
directed if we have continuing languishing individuals who have
to be detained.
Maybe we can pursue that later. But I thank you very much
for your service.
Mr. Nadler. The gentlelady's time has expired. I thank the
gentlelady.
And as you notice, we have a series of votes again. There
is 1 minute and 56 seconds left on this first vote. There are
three 5-minute votes after this. So we will adjourn--or recess,
I should say. We will recess probably for about 20 minutes.
I urge Members of the Committee to return as promptly as
possible after the commencement of the last vote.
I again apologize to the witnesses.
And with that, the Committee stands in recess.
[Recess.]
Mr. Nadler. The hearing will reconvene, and I thank the
witnesses again and apologize again. Hopefully this won't
happen again.
I recognize myself for a few minutes.
Mr. Kris, one quick question, and then I would like to
explore some of the Administration's additional suggestions on
military commission----
Mr. Kris. Yes.
Mr. Nadler [continuing]. Reform. We requested that the
Department of Justice produce the May 9 OLC legal opinion
regarding application of the Constitution to military
commissions.
It is important that we have this as we are deliberating
the reform. When do you think we might get that?
Mr. Kris. I have to say I don't know, but I can certainly
take it back and make clear that you want it quickly. This is
a----
Mr. Nadler. We do want it quickly. We are going to be
debating the military commissions reform presumably in the
context of the conference report on the DOD authorization bill
which has now passed both houses, so we will have the
conference report shortly. And if we get that OLC memo after
the conference is over, it will be sort of----
Mr. Kris. Less helpful.
Mr. Nadler. Yes. Thank you.
Now, Mr. Johnson, the Senate Armed Services Committee noted
its concern with the difficulty that defense counsel has had
obtaining adequate resources and ensuring learned counsel for
capital cases.
In his written submission, Colonel Masciola makes several
recommendations. His first suggestion is that we amend the
Military Commissions Act of 2006 to afford all counsel the
``equal opportunity to obtain witnesses and other evidence,''
thus replacing the current assurance to defense counsel only of
a ``reasonable opportunity.''
So in other words, all counsel on both sides, prosecution
and defense, would have equal opportunity to obtain witnesses
and evidence, not simply the defense have a reasonable
opportunity.
This seems reasonable and important--in fact, crucial--to
assuring a fair process. Can the Administration support that
change?
Mr. Johnson. Congressman, I have reviewed Colonel
Masciola's submissions. I have met with him on several
occasions to discuss the issue of resources, the ability for
him to do his job. I have met with him with our judge advocates
general of each service to ask him what we can do to help
better support him.
I have not had an opportunity to carefully consider Colonel
Masciola's proposal. I think that there--I could foresee
problems with codifying in the law in the abstract a
requirement of equal access to witnesses, but I haven't had an
opportunity to carefully study his proposal. And I would want
to be sure I understood the nature of it before we put
something like that into law.
But I agree that we need to focus on defense resources,
defense experience, defense training. One thing that I am
particularly interested in ensuring is that our defense counsel
in potential capital cases receive adequate training. There are
standards by the American Bar Association.
And I am particularly focused on making sure that in
capital cases the JAGs we send down there to do this know what
they are doing, because those are obviously high-stakes cases.
Mr. Nadler. I appreciate that, but also they need the
ability to get witnesses and other evidence. And again, this
will probably come up in the context of the conference--in the
conference deliberations, so you say you are considering that.
I hope you consider it quickly before the conference convenes,
which may be soon.
Mr. Kris, you have testified the Administration supports
the Senate amendment that would ban statements obtained through
cruel, inhuman or degrading interrogation methods, but that the
Administration would recommend a voluntariness standard that
goes further that ``takes account of the challenges and
realities of the battlefield and armed conflict.''
Since the rationale of allowing flexibility for battlefield
circumstances is difficulties caused by the heat of battle and
the shared desire to ensure the safety of our troops, would you
support or would the Administration support limiting in special
circumstances consideration for military commissions to actual
battlefield capture and otherwise requiring voluntariness under
standards applied by our courts in criminal cases or by the
courts martial--in other words, limiting that less exacting
standard to actual battlefield captures?
Mr. Kris. Sort of a battlefield carve-out from the
voluntariness standard, is that what you are----
Mr. Nadler. Yes.
Mr. Kris [continuing]. Suggesting?
Mr. Nadler. Yes.
Mr. Kris. So----
Mr. Nadler. In other words, you said that the--you said
that the Administration would go further than the Senate----
Mr. Kris. Yes.
Mr. Nadler [continuing]. On the voluntariness standard----
Mr. Kris. That is right.
Mr. Nadler [continuing]. But they would have to take
account of the challenges and realities of the battlefield and
armed conflict.
Mr. Kris. Yes.
Mr. Nadler. So would you support--would the Administration
support going all the way off the battlefield toward the same
voluntariness standard that we have in, let's say, court
martials, but having the taking account limited to battlefield
situations?
Mr. Kris. Yes, if I understand your question, the
Administration's position is that the voluntariness standard,
which is a due-process-based standard, is the appropriate
standard, and our legal experts have made judgments about why
the courts would likely impose that in any event.
But we think that it is appropriate in thinking about that
standard to take account of the realities of the battlefield
and the military----
Mr. Nadler. I understand that and I appreciate that. My
question is that taking account, which is presumably a
lessening of the standard--would you limit that to battlefield
capture situations?
Mr. Kris. Well, I want to----
Mr. Nadler. Because presumably if you--if someone is not
arrested in a battlefield situation, you don't have to take
account of battlefield situations.
Mr. Kris. Well, yes. I mean, I think the way to answer that
is that the voluntariness test is really a totality of the
circumstances test, and this--by that, I mean the voluntariness
test that you apply on the streets of Newark, New Jersey as
well as the voluntariness test that you apply in Tora Bora or
somewhere else. It is a totality test.
And so I really think that it is not so much a different
test as it is a test that accounts for the environment and the
circumstances in which the statement is taken.
So I think the answer to your question is we are actually
talking about a voluntariness test that is, in the abstract,
the same but in its application would take account of the----
Mr. Nadler. May be different, depending.
Mr. Kris [continuing]. Of the facts, yeah.
Mr. Nadler. Okay. And----
Mr. Johnson. Congressman, can I help you there?
Mr. Nadler. Sure.
Mr. Johnson. Let me read you some language along the lines
of what I think the Administration is considering in this
regard for a voluntariness standard applicable for military
commissions cases. And the precise wording may be changed, but
you will get the concept.
In determining whether a statement is voluntarily given,
the military judge shall consider the totality of the
circumstances, including, as appropriate, the details of the
taking of the statement, accounting for the circumstances of
the conduct of military and intelligence operations during
hostilities; the characteristics of the accused, such as
military training, age and education level; and the lapse of
time, change of place or change of identity of the questioners
between the statement sought to be admitted and any prior
questioning of the accused.
Mr. Nadler. Okay. Thank you.
Mr. Kris, the definition of unprivileged enemy belligerent
in the Senate bill was amended on the floor of the Senate to
include members of al-Qaida, without any--without requiring any
showing that the individual actually engaged in or supported
hostilities.
What is the Administration's position on this change? Is it
legally defensible to use membership alone, and how would that
be shown if it is?
Mr. Kris. Well, as I understand it, Congressman, this is a
question of personal jurisdiction. And so you would have to
show an actual law of war violation in order to bring a
successful prosecution for that law of war violation in a
commission or, if you were going to prosecute in a criminal
court, you would have to show a crime there.
Mr. Nadler. Membership in a terrorist group like al-Qaida
would not be----
Mr. Kris. I don't think----
Mr. Nadler [continuing]. Would not be----
Mr. Kris. I mean, as I understand that--that amendment, it
is not meant to create an offense based on membership but that
it is a jurisdictional provision. We are still, as an
Administration, finalizing our position on that.
But I will say that, for example, the authorization to use
military force refers to people who are part of al-Qaida, which
is at least similar to the member standard.
Mr. Nadler. And is it defensible, in your opinion, to use
membership alone? And how would that be shown?
Mr. Kris. Well, again, as a jurisdictional matter, I think
it probably is defensible, subject to the caveat that we are
still finalizing our position and, again, with the emphasis
that to show a conviction and get a sentence you would have to
show a violation.
Membership could be shown in a variety of ways. I doubt you
would--you sort of have to have a formal card-carrying member
test.
I mean, membership in an international terrorist group, for
example, is currently in Federal law, in the FISA statute--you
would show it, I think, in the traditional kinds of ways--
knowing, joinder and affiliation with the group.
Mr. Nadler. Thank you.
And finally, either one of you, could you highlight,
please, any other changes to the Senate amendments that you
think we should be considering?
Mr. Kris. I can run down a quick list if you want of
several, or--Jeh, I am sorry about that.
Mr. Johnson. Please.
Mr. Kris. We have talked about the voluntariness standard.
We have a position about the offensive material support for
terrorism as a law of war violation. It is in our written
testimony.
Have some slight differences, I think, with respect to
appellate review. We are in favor of fact and law review and
the role of civilians, but I think--and this is really for Jeh
to elaborate on more, but have some concerns about the Court of
Appeals of the Armed Forces doing that kind of review.
We favor sunset provisions----
Mr. Nadler. You would favor it going straight to a circuit
court?
Mr. Kris. No. Again, Jeh should probably talk about it, but
we would go to the service court.
Mr. Johnson. It would be a--we actually favor the current
structure that exists in the current military commissions law--
in other words, trial court, court of military commissions
review, D.C. circuit, Supreme Court, but with an expanded scope
of review to encompass both facts and law.
Mr. Kris. It is a fairly modest--as I say, we support a
sunset. I don't think that is in the bill.
This is related to the material support provision, but if
it is out, then certainly I think we would prefer a declaration
about the offenses there being law of war offenses, to deal
with any ex post facto concerns.
And then we have a slight difference on hearsay. And then,
as I said, we are still sort of finalizing----
Mr. Nadler. And you can submit all that. That is in
writing.
Mr. Kris. Yes. I don't want to filibuster you. I am sorry
to----
Mr. Nadler. No, that is all right. Well, my question
inadvertently almost asked for a filibuster, but I don't want
one. Thank you.
My time has expired.
The gentleman from Iowa?
Mr. King. Thank you, Mr. Chairman.
I would ask Mr. Johnson if you could restate again or read
to the Committee the exceptions that may be considered on
evidence gathering, as part of it that I heard was it would be
evaluated as to what kind of duress the accused might be under.
That was an interesting--is that in your written testimony and
I missed it?
Mr. Johnson. Well, first of all, I am happy to submit it
for the record.
Mr. King. I would ask that you do that and unanimous
consent that--well, it already is in the record because you
read it, but----
Mr. Johnson. Yes. Would you like me to re-read it?
Mr. King. I would appreciate that.
Mr. Johnson. Yes. In determining whether a statement is
voluntarily given, the military judge shall consider the
totality of the circumstances, including, as appropriate, the
details of the taking of the statement, accounting for the
circumstances of the conduct of military and intelligence
operations during hostilities; the characteristics of the
accused, such as military training, age and education level;
and the lapse of time, change of place or change of identity of
the questioners between the statement sought to be admitted and
any prior questioning of the accused.
Mr. King. Okay. Thank you. And that is just an interesting
string there, and so it raises a number of questions in my
mind, and one of them would be if the accused statement changes
from the time that they are first interviewed--I will use that
term--to the time they go to trial, doesn't this language open
it up so the judge can consider that and consider the first
statement that this accused made--it might be under duress of
some type?
Mr. Johnson. Well, that is an interesting question. I know
from my time as a prosecutor--and Mr. Kris can help me out
here--that it is--and I am not sure how this would shake out in
the military commissions context.
I know that from my time as a prosecutor, if a statement is
suppressed because it was not voluntary, or it was not taken in
accordance with law, and there is a subsequent statement made
by the defendant that is inconsistent with the suppressed
statement, the government might have the opportunity to then
offer into evidence the suppressed statement as a prior
inconsistent statement.
Maybe David can----
Mr. King. Or the judge might throw it out on--might be able
to take it into consideration and throw the original statement
out and declare it to be likely suppressed because of the
inconsistency between the original statement by the accused and
the statement at the time of the trial.
Mr. Kris?
Mr. Kris. There are different rules of admissibility when a
prior statement is used for impeachment as an inconsistent
statement, as opposed to affirmative evidence.
But the language that Jeh read I think is an effort to sort
of codify in statute the Supreme Court's holding in Colorado v.
Connelly, where you have a first statement that, let's assume,
is taken in a way that is--makes the statement inadmissible and
then a second statement taken under different circumstances
which, standing alone, would be fine but you still have to
litigate the question of whether the first has tainted the
second.
And there is law on how that taint is dissipated, making
the second statement admissible----
Mr. King. It raises a question of law, which would be the
discretion of the judge, as I understand this, in the final
analysis.
And if I listen to the string of this, the age of the
defendant, the circumstances, the battlefield circumstances,
the education, the training--can you describe for this
Committee a scenario by which, let's see, one might be picked
up on the battlefield, and those circumstances would be tight
enough that the case was not in jeopardy and left to the
discretion of a Federal judge?
Mr. Kris. Well, I mean, it is not unbounded discretion, of
course, in the military judge here. But I think the concept----
Mr. King. But this language prescribes discretion, as I
understand it.
Mr. Kris. I beg your pardon?
Mr. King. This language prescribes discretion, as I
understand it.
Mr. Kris. I think it guides the discretion of the judge, or
the judge, in applying the legal standard of voluntariness,
which has a very extensive pedigree in the case law, as you
know, under the fifth amendment--I think maybe the concept that
underlies the first part of that language is the idea of a
coerced confession, of an involuntary confession, is predicated
on some kind of government overreaching, improper conduct vis-
a-vis the admissibility of the statement.
Mr. King. Okay. I think that is a good place to leave
that----
Mr. Kris. Okay.
Mr. King [continuing]. That particular question. I think
that is an important point.
And then I would like to go to the question of is the
Administration's position--does the Administration support
reading Miranda rights to enemy combatants when they are picked
up on the battlefield?
Mr. Johnson. No. No, and I am happy to submit a letter for
the record that I wrote to the Chairman of the House Armed
Services Committee last week where, in response to inquiries
from that Committee, I stated pretty unequivocally that it is
not the mission of the military to read people they capture
Miranda rights.
Mr. King. But we do know that is taking place.
Mr. Johnson. I am happy to give you that for the record.
Mr. King. But you do know that is--it is taking place in
the battlefield, within--very recently, within the last couple
of months.
And so under what circumstances is the military reading
Miranda rights to those detainees that they are picking up in
places like Afghanistan?
And I would point you to the congressional record that
Congressman Mike Rogers from Michigan has introduced within the
last couple of months as an example.
Mr. Kris. Congressman, can I just make a couple of points
in response to that?
Mr. King. Please.
Mr. Kris. The first is with respect to the admissibility
standard, the Administration is supporting the rule under which
Miranda would not be required for admissibility of statements.
So there is no ambiguity on our position with respect to
whether Miranda is required to admit these statements in a
military commission.
With respect to the actual practice, in addition to the
letter that Mr. Johnson wrote himself, there is a letter dated
July 21 from the attorney general to the House Armed Services
Committee that says--and I will quote you the relevant
sentence; I won't read a whole long part of it, but, ``the
warnings''--Miranda warnings--``are given in locations removed
from the battlefield and only after the military's intelligence
gathering and force protection needs have been met.''
So I think there is some confusion about what the ground
truth is here. But the attorney general, Director Mueller and
Mr. Johnson have all written letters that I think, if you take
a look at them, will clear it up. At least I hope they will.
Mr. King. All right.
Mr. Johnson. The other thing I would add, Congressman, is
that the military commissions bill that the Senate passed
expressly excludes Article 31 of the USMJ, which is the Miranda
requirement, from any application to military commissions.
Mr. King. Thank you for that clarification. Thank you for
your testimony.
Thank you, Mr. Chairman. I yield back.
Mr. Nadler. Thank you.
Mr. Delahunt is recognized.
Mr. Delahunt. You know, we continue to hear the term
``picked up on the battlefield.'' How many of the 800 detainees
at Guantanamo were captured by American soldiers, if you know,
on the battlefield, out of the--I think it is 740 or 790?
Mr. Johnson. I don't have the exact number for you,
Congressman. We can give you that for the record.
Mr. Delahunt. If I told you maybe 15 or 20, would that
sound outrageously minimal?
Mr. Johnson. Fifteen or 20?
Mr. Delahunt. Or 20, captured by Americans.
Mr. Johnson. I don't have the exact numbers for you.
Mr. Delahunt. American soldiers.
Mr. Johnson. I don't have the exact numbers for you.
Mr. Delahunt. Okay. I think that is very important, because
we are going to continue to hear as this debate goes on about
being picked up on the battlefield. And I guess it is my
information, and I think it has been sufficiently corroborated,
that it is a minuscule number.
In fact, if either one of you know, how many were picked up
via the bounty program that was initiated by the Bush-Cheney
administration?
Mr. Johnson. I am not sure of the number.
Mr. Delahunt. Couple of hundred, maybe?
Mr. Johnson. I wouldn't want to speculate, sir.
Mr. Delahunt. Okay.
Mr. Kris, do you know?
Mr. Kris. No, I don't know the number. I mean, I will say I
think your basic point is well taken, and I think it is similar
to a point that Chairman Nadler made, which is that, if I
understand you--maybe you are making only a narrower point, in
which case--but this is a different kind of conflict in some
ways, because the enemy is not wearing uniforms, and there will
be, I think, perhaps more challenge in trying to determine
exactly who is who.
Mr. Delahunt. Right.
Mr. Kris. And I think it is incumbent on us to have
procedures that are appropriate to the challenge of that
determination.
Mr. Delahunt. I concur with that. And again, let me be very
clear, too. I applaud what you are trying to accomplish. I
might have some disagreements in terms of degree, but I know
what you are trying to do.
You inherited a mess. And it is difficult picking up after
a mess is left on your lap. But we owe it to the American
people, to our justice system, to attempt to do that.
Speaking of messes, where do we stand with the CSRTs?
Mr. Johnson. They were suspended in January as part of the
review process.
Mr. Delahunt. Well, again, what I found fascinating with
the CSRTs--and for those who don't like the use of acronyms,
that is Combat Status Review Tribunals--which I think goes to
the Chairman's question about, you know, how do we initially
filter them or determine that they are combatants.
And it is my understanding that the mechanism that we used
was Combatant Status Review Tribunals----
Mr. Johnson. Well, for the----
Mr. Delahunt [continuing]. Along with ABRs or ARBs.
Mr. Johnson. ARBs, Administrative----
Mr. Delahunt. ARBs.
Mr. Johnson [continuing]. Review Boards, yes.
Mr. Delahunt. Right. And for the record, I wanted to note
that in hearings before the Committee which I Chaired there
were a number of military prosecutors that testified that
described that entire process as it was--as it existed as a
sham, a joke and a fraud being perpetrated.
Now, these men were, in my judgment, courageous. I am sure
that there was a lot of dissatisfaction with those opinions
being expressed. But they were members of the American
military, and they were attorneys that participated in the
process.
They weren't sitting here in comfy, cozy Room 2141 making
pronouncements and preachments and reaching conclusions that
varied significantly from what the reality was. And the reality
was that that was a system that did not reflect well on the
American justice system.
Have you been able to design or develop, as we look
forward, a new screening mechanism--a grand jury, if you will,
to use a legal term?
Mr. Johnson. We are----
Mr. Delahunt. Are you still in the process?
Mr. Johnson. Well, let me make a couple of points. First,
when the process--the CSRT process for the Guantanamo detainees
was suspended in January, what we did as part of the executive
order mandate was to begin ourselves in the Administration a
detainee-by-detainee review of every case----
Mr. Delahunt. Good.
Mr. Johnson [continuing]. Which we are more than halfway
through right now, from--we are looking at the complete picture
with regard to every single detainee, including any who went
through the CSRT process and are still detained.
We are developing a periodic review process and a process
for initial screening. There is an initial screening process
that occurs irrespective of CSRTs, that occurs overseas in
Afghanistan when people are captured there. There is a board
that looks at them within a matter of days or hours, and that
process is going to continue.
We call it a 190-8 process. And that is something that is
standard military. But we are devising----
Mr. Delahunt. At least it has a number now, Mr. Chairman.
Mr. Johnson. There is a number on it, yes, sir. But we are
devising a periodic review process.
Mr. Delahunt. And before the Chairman hits the gavel, if I
could ask for another 30 seconds----
Mr. Nadler. Without objection, the gentleman is granted 30
seconds.
Mr. Kris. Just one other point, I think, to make is that
one of the five rule changes that the Pentagon--the government
adopted on its own was to change the reliance on the CSRTs when
determining the jurisdiction of the military commission, and
that is a--another change that I think----
Mr. Delahunt. That is well done. And the Chair and I have
had a ongoing, continuing interest in a case involving a
Canadian citizen who happened to be Syrian by birth by the name
of Maher Arar.
And when I hear issues regarding words such as
``diminishing our national security,'' let me put forth that I
have had multiple conversations with Canadian officials who
have expressed reluctance now to cooperate with the U.S. in
terms of intel because of the injustice that was done to that
individual.
We intend to have a hearing once more on Maher Arar. I am
going to request you, Mr. Johnson, and you, too, Mr. Kris, go
back, look at the records, and let's get those who made the
decisions and signed off before this Committee, because I
believe ardently that it is the responsibility of these
Committees to do the oversight that is necessary to repair the
damage that was done in the preceding Administration to
America's image.
With that, I yield back.
Mr. Nadler. I thank the gentleman.
Let me just amplify, we--as the gentleman said, we have
held joint hearings on that case. That is the case where
intelligence from Canada was used by the United States
ultimately to highly improper purposes. Canadian investigations
revealed that.
Our government, to this day, has refused--well, I don't
know that--we can ask the new Administration--but refused to
acknowledge any error, when error was manifest and injustice
was manifest.
And the Administration should take a careful look at the
Maher Arar----
Mr. Delahunt. Mr. Nadler, you know, I think it is important
to note that the Canadians instituted a independent commission
that spent 2 years that resulted in the total exoneration of
Mr. Arar and, in fact, compensated him in the----
Mr. Nadler [continuing]. The Canadian Parliament voted a 10
million, I think it was, dollar indemnity--for their--part in
the injustice done to him.
And I have communicated to the--the two of us have
previously communicated, asking for a review of this and for
information, so I hope you take that back and have it done.
I want to thank you, the two witnesses on this panel. Thank
you very much for your indulgence and for your testimony.
I would ask the second panel to take its place.
And while they are taking their place, I will introduce the
second panel. Colonel Peter Masciola--is that Maskiola or
Masciola?
Colonel Masciola. Masciola.
Mr. Nadler. Masciola. Colonel Peter Masciola is serving an
active-duty tour as the chief defense counsel, Office of
Military Commissions, where he is responsible for overseeing
the defense of all detainees at Guantanamo accused of war
crimes involving alleged terrorism against the U.S. under the
Military Commissions Act of 2006.
He oversees a joint total force staff of 95 military and
civilian lawyers, paralegals, investigators, intelligence
analysts and administrative officers providing full-spectrum
trial defense services to Gitmo detainees charged under the
MCA.
During his 25 years of distinguished military service,
Colonel Masciola has served as the ANGJA assistant to the
commander, first Air Force commander in chief, C.C.--I assume
it means that--Air Force North, Tyndall Air Force Base,
Florida; principal legal advisor to the chief of the
Directorate of Total Force Integration H.Q. USAF/A8F; H.Q. at
SJA; H.Q. Massachusetts Air National Guard; SJA 104th Fighting
Wing, Barnes Air National Guard Base, Massachusetts; supported
deployment operations in Iraq and Afghanistan; and deployed
with his A-10 Fighter Wing during the Bosnia conflict.
Commissioned in January 1984, Colonel Masciola served 10
years in active duty, holding progressively senior positions,
including branch chief, Air Force medical tort claims and
litigation; medical law consultant; circuit trial counsel; area
defense counsel; and assistant SAJ--SJA.
In civilian life, Colonel Masciola is in the private
practice of law. He received his juris doctorate from the New
England School of Law in 1983.
David J.R. Frakt was the lead defense counsel in the Office
of the Chief Defense Counsel, Office of Military Commissions in
Washington, DC and Guantanamo Bay, Cuba. He was the sole
defense counsel in U.S. v. Ali Hamza al-Bahlul, one of only two
detainees to be tried by military commission.
He was also the lead defense counsel in U.S. v. Mohammed
Jawad, one of two child soldiers facing trial by military
commission. He continues to represent Mr. Jawad.
He is an associate professor of law and director, Criminal
Law Practice Center, Western State University College of Law.
He is a graduate of the Air Command and Staff College and the
Squadron Officer's School. He holds a J.D. from Harvard Law
School and a B.A. in history from the University of California,
Irvine.
Steven Engel is a partner in the Washington, D.C. office of
Dechert LLP. Prior to joining Dechert, Mr. Engel served as a
deputy assistant attorney general, the Office of Legal Counsel
of the Department of Justice.
While at the Office of Legal Counsel, Mr. Engel provided
legal advice to the executive branch on matters relating to the
detention and prosecution of the Guantanamo Bay detainees, and
he worked with Congress in establishing the statutory military
commission system following the decision of Hamdan v. Rumsfeld.
Mr. Engel is a graduate of Yale Law School. He obtained a
master's in philosophy from Cambridge University and an A.B.
from Harvard College. He served as a law clerk to Justice
Anthony Kennedy of the Supreme Court and to now-Chief Judge
Alex Kozinski of the U.S. Circuit Court of Appeals for the
Ninth Circuit.
Eugene Fidell is senior research scholar in law and the
Florence Rogatz Lecturer in Law at Yale Law School. He is also
a counsel at the law firm Feldesman Tucker Leifer Fidell LLP.
He earned his J.D. from Harvard Law School and, perhaps most
importantly, is a graduate of Queens College.
Mr. Fidell served as a judge advocate in the Coast Guard
from 1969 to 1972 and in private practice has represented
members of each branch of the armed services. He has also
represented print and electronic media in military justice
matters.
He has written extensively on military law and has taught
the subject at Yale and Harvard Law Schools and the Washington
College of Law, American University, where he is an adjunct
professor of law.
I must say that I assume that reference to Queens College
was put in because one of our counsels is from Queens.
I am pleased to welcome all of you. Your written statements
in their entirety will be made part of the record. I would ask
each of you to summarize your testimony in 5 minutes or less.
To help you stay within that time, there is a timing light
at your table. When 1 minute remains, the light will switch
from green to yellow and then red when the 5 minutes are up.
Before we begin, it is customary for the Committee to swear
in its witnesses.
[Witnesses sworn.]
If you would please stand and raise your right hand to take
the oath.
Do you swear or affirm under penalty of perjury the
testimony you are about to give is true and correct, to the
best of your knowledge, information and belief? Thank you.
Let the record reflect that the witnesses answered in the
affirmative.
You may be seated. I will ask each of you to testify in
less than 5 minutes. We expect, I hope, to be able to get
through at least the testimony before the next series of votes.
Colonel Masciola?
TESTIMONY OF COLONEL PETER R. MASCIOLA, USAFG, CHIEF DEFENSE
COUNSEL, OFFICE OF MILITARY COMMISSIONS--DEFENSE
Colonel Masciola. Chairman Nadler, distinguished Members of
the Committee, I want to thank you for this opportunity to come
here and testify in front of you about what I believe is as
important as some of the rule changes that you have discussed
in order to make any commission system fair and just, not only
to the system but to the accused that--they purport to trial.
In order to do that, I first want to state for the record
that while I oversee all of the defense services at Guantanamo
Bay, Cuba, I do not represent any specific detainee, unlike
Major Frakt, who is one of the counsel who works in my office.
Because I don't represent any specific detainee, I am going
to limit my testimony to adequate resources here today and not
make any opinions about whether or not military commissions
should go forward or any particular forum that any detainee
should be tried upon.
Having said that, I want to follow up on a previous
question asked to Mr. Johnson about adequate resources for the
defense, and that is the question, Chairman Nadler, that you
had stated in regards to equal access to both witnesses and
evidence.
Sir, that is already the codified standard under the
Uniform Code of Military Justice. And what I am simply asking
for--and along a lot of the points that I made in writing--is
equal access to witnesses and justice in the concept of
equality of--I am sorry--to witnesses and evidence, and the
concept of equality of arms, something that is woefully missing
and inadequate in the resourcing under the present Military
Commissions Act.
And I point to the disparity between not only the UCMJ but
the Federal system, where adequate resourcing is mandated by
statute under the Criminal Justice Act.
I point to several pieces of--of evidence, if you will, or
documents, exhibits, that I have included in my written
testimony to highlight the inadequacies of resourcing because
of this unequal access to witnesses and evidence.
First, one of the exhibits are the convening authority's
rulings on 56 requests by counsel who work in my office for
expert witnesses. Of those 56 requests, 47 were denied right
off the bat. And most of them--10, in fact, in the death
penalty cases--five death penalty cases--involved mitigation
experts.
One case, the Ghailani case, which was recently moved to
Federal district court, which I submitted Exhibit B, shows that
as soon as Mr. Ghailani was indicted and arraigned in Federal
district court, the judge, ex parte and before even requests
were made, subsequent requests were made by the defense
counsel, granted three experts--not only a mitigation expert,
but an investigator, and an intelligence officer, right away.
That is the kind of requests that were being denied routinely
by the convening authority.
I would like to submit, and I have submitted in writing,
that the whole model of the convening authority doesn't work in
the military commission system. It is based on commander
justice, commander justice who has an interest in the whole
part, including being fair to the accused and good order and
discipline in their units.
There is no such analogy here. Alleged al-Qaida, alleged
Taliban, do not belong to the convening authority's unit. In
fact, the good order and discipline of JTF Guantanamo, the
detention task force, does not come under the command of the
convening authority.
There is no reason that the defense resources should also
come under the convening authority because the convening
authority, unlike the commander under the military justice
system, does not have the same interest that justice be done
for that accused member of their unit. And the whole unit is
looking at whether justice is done.
I submit that I have in my written material made specific
recommendations as to the language that would be amended for
both statutory and regulatory changes that would change the
convening authority and have a more fairer system to the
defense that would adequately resource the defense.
I would also like to point out the change in the death
penalty cases that Mr. Johnson was saying. Yes, the memo that I
submitted here and the prior memos I submitted to him do
address those resources.
The death penalty counsel--he mentioned training. Training
is not enough in order to comply with the ABA standards and the
standards--federal--for learned counsel. Unfortunately, the
military doesn't have a death penalty bar because we don't have
that many death penalty cases, so we don't have experienced
military counsel in my office who are death-penalty qualified.
We propose under the new system that that be contracted out
until the military counsel get their--I am sorry, sir.
We propose that a system be set up where death-penalty-
qualified counsel in death penalty cases can be contracted,
similarly as they are done in the Federal district courts and
as was done initially in--when the Ghailani case was
transferred there.
[The prepared statement of Colonel Masciola follows:]
Prepared Statement of Peter R. Masciola
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
__________
Mr. Nadler. Thank you, Colonel.
Major Frakt?
TESTIMONY OF MAJOR DAVID J. R. FRAKT, USAFR, LEAD DEFENSE
COUNSEL, OFFICE OF MILITARY COMMISSIONS--DEFENSE
Major Frakt. Thank you, Chairman Nadler, Mr. King, Mr.
Delahunt. Thank you for the opportunity to testify here today.
And I particularly appreciate the comments of Chairman
Nadler regarding my client, Mohammed Jawad, and the injustice
that has been done to him.
And I did want to inform the Committee that earlier today
in the Federal district court Judge Huvelle, with the
acquiescence of the Department of Justice, granted the writ of
habeas corpus and ordered Mr. Jawad to be released after
notifying Congress in accordance with a provision of the
Supplemental Authorization Act from earlier this summer.
So after nearly 7 years, my client, an innocent man, a
teenager, an adolescent boy who was brought to Guantanamo on
the basis of tortured statements, will soon be free.
How did we get to this point? How is it possible that such
a thing could happen in the United States, that justice could
be delayed and denied for so long?
And his case is a useful example of why we need to
carefully consider whether we should continue with military
commissions and, if so, why they need to be drastically
reformed, far beyond what has been approved in the Senate
National Defense Authorization Act.
We have to go back to the original purposes of the military
commissions under the Bush administration. The purposes there
were not to provide fair trials, not to provide American
justice.
Actually, they represented an abandonment of the rule of
law that was necessitated by the abandonment of the Geneva
Conventions, the approval of coercive and abusive interrogation
techniques, the abandonment of the standard of humane
treatment, the refusal to recognize people as POWs or to afford
tribunals to those where there was a dispute.
The decision to create a legal black hole at Guantanamo,
where no one was entitled to challenge the basis for their
detention, no one was entitled to counsel, no one was entitled
to access to the courts--that was the context and the milieu in
which original military commissions were created.
And of course, ultimately they were struck down by the
Supreme Court. But then the Military Commissions Act of 2006
was rushed through Congress with minimal thought, minimal
consideration, to what really needed to be done and whether
there really was a need for these.
The Obama administration has talked about military
commissions being a suitable forum for law of war offenses, and
I agree with that. They are a legitimate forum for law of war
offenses. But what gets left out of the debate is that there
are virtually no law of war offenses to be tried.
If you look at what people have actually been charged with,
they are charged with material support to terrorism, terrorism,
conspiracy and spying, all non-law-of-war offenses, all
offenses which are not--do not appear in the War Crimes Act, do
not appear in the Rome Statute of the ICC, have not
traditionally been law of war offenses.
The things that do look like law of war offenses, such as
killing civilians or murdering civilians, did not occur during
the armed conflict. I have been in the United States Air Force
since 1995. I was on active duty until 2005. We were not in a
state of armed conflict prior to 9/11.
And so we have a false premise that we are trying terrorism
crimes--attack on the USS Cole, attack on U.S. embassies in
Africa, and 9/11 itself--which were simply crimes--mass murder,
hijacking. We don't need military commissions for those
offenses.
So go ahead and reform the military commissions, and create
ones that are limited to law of war offenses and provide a fair
trial, but there is not going to be anybody to try.
Thank you.
[The prepared statement of Major Frakt follows:]
Prepared Statement of David J. R. Frakt
__________
Mr. Nadler. Thank you. Can I just clarify one question
before we go on to the next statement? Why did you say there
would be nobody to try in a properly constituted military
commissions for law of war violations?
Major Frakt. Because, Mr. Chairman, none of the people that
have been charged have been charged with actual law of war
offenses.
Now, I want to say there is one exception to that. There is
a crime called murder in violation of the law of war, which
sounds like a war crime. Certainly, if a murder was in
violation of the law of war, that would be a war crime.
However, the prior Administration took the position that
murder in violation of the law of war was simply murder by an
unprivileged belligerent or murder by an enemy combatant.
In other words, the mere status of being an unlawful
combatant--the jurisdictional prerequisite was--converted any
act of fighting, any act of attempt to kill U.S. soldiers, into
a war crime, and there have been--that has been challenged by
the defense counsel in the military commissions.
We have three different judges in three different cases
decide that the government's interpretation of that law was
wrong and that what Congress really intended was that in
violation of the law of war means that there was something in
the manner or method or circumstances that violated the law of
war beyond simply being an unlawful combatant.
So we don't have examples of during the actual armed
conflict of people committing traditional law of war offenses.
Mr. Nadler. Mr. Engel?
TESTIMONY OF STEVEN A. ENGEL, DECHERT LLP
Mr. Engel. Thank you, Chairman Nadler and Members of the
Subcommittee. I appreciate the opportunity to appear here today
to discuss the current proposals for the reform of the military
commission system.
During the prior Administration, I served for almost 3
years in the Department of Justice's Office of Legal Counsel,
and in that capacity I worked with Congress in developing the
military commissions--the military commission system that was
established under the Military Commissions Act.
As President Obama recently recognized, the United States
has long employed military commissions for prosecuting captured
enemies for violations of the laws of war.
Indeed, the list of Presidents who have employed
commissions reads like a ``Who's Who'' of our greatest wartime
leaders--George Washington, Abraham Lincoln, Franklin Delano
Roosevelt--in other words, far from an invention of the last
Administration, the United States has long recognized that
military commissions represent the traditional means by which
this country has tried captured enemies for war crimes.
Because of this history and because of their particular use
in the present conflict, it should not be surprising that
President Obama has chosen to retain the military commission
system for the trials of the Guantanamo detainees.
Our Article III courts have an important role to play in
our counterterrorism efforts. Article III courts have been
particularly useful in this conflict when it comes to
individuals apprehended in our borders by traditional law
enforcement methods.
When it comes, however, to enemy combatants captured by our
military, the Obama administration, like its predecessor, has
concluded that military commissions may be necessary and
appropriate to permit the consideration of evidence and
intelligence information that likely could not be used under
the strict procedural rules of Article III courts.
It is equally unsurprising that the Obama administration
would seek to work with Congress to improve both the workings
of the commissions and the public perception of their ability
to fairly dispense justice in this armed conflict.
Though I differ with some of the details of the proposals
under consideration, I believe that there is much to recommend.
The amendments in the Senate's defense authorization bill in
particular reflect, in many respects, our experience in
actually witnessings military commission prosecutions over the
past 3 years.
The bill also reflects a number of critical legal
developments, including the Supreme Court's decision in the
Boumediene case, which held that Guantanamo detainees have the
right--the constitutional right to habeas corpus, and suggested
in all likelihood that they would be entitled to other
constitutional rights as well.
Although much less publicized, the military judges who
preside over the commission system itself have made a number of
important rulings in interpreting the Military Commissions Act,
and the Senate bill appropriately addresses these decisions.
I would like to just comment briefly on two of the
proposals that the Obama administration has made. I agree with
the Administration that special attention needs to be given to
the rule governing the admissibility of detainee statements,
which, frankly, has become a lightning rod for critics who
charge that it would permit convictions based upon so-called
coerced evidence.
Although the existing rule is actually quite similar to
those employed by U.N.-authorized international war crimes
tribunals, and military judges have considerable discretion
under the statute which they have carefully exercised to ensure
the fairness of the trials, I agree that amending the rule
could have a positive impact on the commissions and
particularly on the positive--on the perceptions of those
commissions.
I disagree with the Obama administration's proposal to
remove the material support offense from prosecutors' arsenal.
During the Civil War, the United States prosecuted by military
commission those who provided horses and other support to
Confederate guerillas.
We are similarly entitled under the law of war to prosecute
those who join or support unlawful forces such a al-Qaida, and
our prosecutors have so far made good use of that authority.
Although we can and should discuss how military commissions
may be improved, I do not want to lose sight of the bigger
picture here. Apart from any particular details, the
endorsement of the military commission system by the Obama
administration and by this Congress will establish the
commissions on a sound, bipartisan basis.
Despite our historical tradition, it is no secret that the
use of commissions against al-Qaida has been a matter of some
controversy and considerable litigation over the past several
years.
Those challenges have impeded the commissions' ability to
mete out justice to the terrorists who have committed war
crimes against Americans, including those who perpetrated the
attacks of September 11.
I am hopeful that the proposed reforms will remove some of
the objections now extant to the commissions, place them on a
sounder legal footing and allow the trials once again to move
forward.
I appreciate the opportunity to participate in the
Subcommittee's discussion today, and I look forward to your
questions.
[The prepared statement of Mr. Engel follows:]
Prepared Statement of Steven A. Engel
__________
Mr. Nadler. I thank you.
Mr. Fidell?
TESTIMONY OF EUGENE R. FIDELL, SENIOR RESEARCH SCHOLAR IN LAW
AND FLORENCE ROGATZ LECTURER IN LAW, YALE LAW SCHOOL
Mr. Fidell. Thank you.
Mr. Chairman, I am not going to read my statement at all. I
would just like to make a few comments. To begin with, I
appreciate your mention of my alma mater. As Daniel Webster
said of Dartmouth College, ``it is a small school, yet there
are those who love it.''
Second, I would like to comment that I am here in my
capacity as president of the National Institute of Military
Justice. We have been deeply involved with the military
commissions issues from the beginning.
We have had observers from our staff and our advisory board
and board of directors go to Guantanamo. We have generated a
little pamphlet, which I can leave with you if you like.
We don't have a party line. Our observers see things
differently from person to person. I think they are quite
interesting reading. I commend this to you.
And let me mention that I am extremely proud that we have
generated a volume of law reports, the Military Commission
Reporter, gathering in one place all of the rulings of the
military judges and the military commissions as well as the
rulings--the unclassified ones--of the Court of Military
Commission Review.
Frankly, we had thought this would be a historical
document, and it turns out, of course, that events seem to be
heading in a direction where we are going to be living, for
better or worse, with military commissions for some time.
And before I leave that subject, I am happy to say that
there are two members of the NIMJ staff present observing
democracy in action here today. I am extremely pleased to
recognize them. They spent the morning in Judge Ellen Huvelle's
courtroom watching the proceedings that have been mentioned
already. So what an exciting day for these young people.
There are three points I would like to make. First, I would
like to talk about transparency. Second, I would like to talk
about appellate review. And third, I would like to talk about
voluntariness.
On the transparency point, you already mentioned,
anticipating a point that I wanted to stress, the real
importance of everyone seeing the Office of Legal Counsel
opinion that has been mentioned.
You can't have a discussion--and I think no Member of the
House should--can be expected to act responsibly, to vote
responsibly and intelligently on pending legislation without
access to that opinion.
We have lived through several years now of secret law from
the Office of Legal Counsel. It has been a national disgrace.
And right-minded people such as Dawn Johnson, whose
nomination, surprisingly, is still pending in the other body,
has worked to reform the Office of Legal Counsel, reform that
process and keep it on a very solid, professional footing.
We really all ought to see the Office of Legal Counsel
opinion. That is this Administration's view of what due process
entails.
Second, with respect to, again, transparency, I would hope
that some effort could be made to require the Department of
Defense to use notice and comment rule-making when it changes
the manual for courts martial--manual for military commissions.
This is an easy one. It will help foster public confidence
in the administration of justice. Yes, changes to the manual do
have to be reported to Congress in advance, but why not use the
normal process that we are familiar with through the
Administrative Procedure Act, which admittedly doesn't apply
here?
But still, Congress might give serious attention to either
amending the MCA or putting in some real, real strong language
in a conference report saying, ``Look, let the people
participate in the rule-making process.'' That is where a lot
of the implementing rules get made. So I would like to put that
on the table.
The final point with respect to transparency--and it goes
back to our ``1 M.C.'' law reporter--I hope that the Defense
Department can be encouraged to get a more user-friendly Web
site. We are happy to do this. We think it is important. We are
proud of our work in putting out the Commission Reporter.
It was a lot harder than it should have been. I think we,
members of the public, people around the world, Members of
Congress, your staffs should be able, with much less
difficulty, to find out what the rulings have been rather than
have it haphazard.
With respect to appellate review, it is a good thing that
the Senate bill includes appellate review by the Court of
Appeals for the Armed Forces. It is incomprehensible to me that
the MCA, which as previously was indicated, was passed kind of
under the gun in 2006, provided for a review by the D.C.
circuit.
I have infinite respect for the D.C. circuit. I have
practiced there for many years. I have also practiced for many
years before the now Court of Appeals for the Armed Forces. You
are dealing with military law of a kind, and that is supposed
to be our expert body.
Make sure, I hope, that the House conferees are solidly
behind the Court of Appeals for the Armed Forces. They can do
the job. They have the time. And it will provide a sort of
coherence to these bodies of law.
My final point concerns voluntariness. Voluntariness should
be the test for admissibility of statements. I will say, as I
think Mr. Johnson pointed out, Article 31 of the UCMJ does not
apply. It was specifically carved out in the MCA. It should be
carved back in.
All you have to do is look at Article 31(d) of the UCMJ.
That is the provision that says you cannot use evidence
obtained by unlawful threats or even unlawful inducements. I
cannot come up with a plausible reason for having a different
test in this context than in the court-martial context.
That is all I have, Mr. Chairman.
[The prepared statement of Mr. Fidell follows:]
Prepared Statement of Eugene R. Fidell
ATTACHMENTS
__________
Mr. Nadler. I thank you.
We are expecting votes soon, and so I am going to be fairly
strict in adhering to the 5-minute time line. I hope we will be
able to get this all in before the votes, so that we don't have
to ask you to stay until the votes are over.
I recognize myself first.
Mr. Fidell, in your written statement, you note that any
military commission system must be appropriately limited in
terms of who can be charged and for what crime.
Do the amendments made by the Senate bill to the MCA set
the correct standards of jurisdiction? What, if any, further
changes are needed?
Mr. Fidell. The changes go in the right direction, but as
you will see from my statement--and here, I have to
respectfully disagree with Mr. Engel, or at least a part of Mr.
Engel's presentation. I think it is quite dangerous to accede
to the notion that military commissions are kind of normal and
accepted.
I personally disagree that they date back to President
Washington's--not his Administration, but to his term as
commander in chief of the Continental Army.
They should be limited in duration and subject matter and
in personal jurisdiction, and any----
Mr. Nadler. And do you----
Mr. Fidell [continuing]. Anything that can be done in that
direction should be done----
Mr. Nadler. Can you give us in writing your recommendations
as to what those limitations should be?
Mr. Fidell. Yes. Some of those----
Mr. Nadler. Thank you.
Mr. Fidell [continuing]. Appear in an appendix to my
testimony.
Mr. Nadler. Thank you.
Major Frakt, you note the lack of a minimum age limitation
for military commissions. Your client has been referred to by
some as a child soldier. You testify he may have been as young
as 12 when captured in 2002.
How might an age limit have changed his confinement and
possible prosecution?
Major Frakt. I am sorry, Mr. Chairman. I didn't hear the
last sentence.
Mr. Nadler. How might an age limit have changed his
confinement and possible prosecution, if we had had an age
limit?
Major Frakt. Well, Mr. Chairman, it certainly would have
precluded a prosecution. Had we complied with the optional
protocol on the involvement of children in armed conflict,
which the United States signed and ratified in 2002, he would
have been treated very differently.
He would not have been confined with adult prisoners. He
would have been provided opportunities for rehabilitation and
reintegration. And the U.S. in a report to that committee did
acknowledge that both he and Omar Khadr were juveniles.
Mr. Nadler. Thank you.
Now, Major Frakt, the Administration has indicated that it
will seek to detain individuals deemed dangerous, even if
acquitted, based on its authority to hold individuals for the
duration of hostilities, presumably as enemy combatants or
whatever it is calling them these days.
What, in your view, is the extent of this authority? Who
would it possibly cover?
Major Frakt. Well, I am skeptical about this alleged
category of people that are too dangerous to release but yet
can't be prosecuted. No one has ever identified any such
individual.
If we are confident that a person is--poses a danger to the
United States, that should be based on past conduct, which
should be prosecuteable, at a minimum, for material support of
terrorism, which is a very flexible crime and it covers----
Mr. Nadler. So you are skeptical----
Major Frakt [continuing]. A lot of conduct.
Mr. Nadler [continuing]. That there could be anybody in
this third category.
Major Frakt. Yes. But if there were, and it is troubling,
the idea of someone being acquitted and then continuing to be
held. But I do understand the distinction between the authority
to hold someone under the law of war and the--versus for
criminal prosecution.
What I would say--and this is what we do in the Air Force--
if someone is prosecuted and acquitted, then whatever they were
charged with cannot be the basis for subsequent administrative
action--for example, if we wanted to administratively discharge
someone.
So if there were some other basis, other than what they
were prosecuted for and acquitted, to hold them, then--then
potentially there could be a lawful----
Mr. Nadler. Let me ask you one further question, and please
answer briefly. In your view, what evidence would be required
to authorize indefinite detention, and what process would be
needed to determine that?
Major Frakt. Indefinite detention should not be authorized
under any circumstances.
Mr. Nadler. Well, indefinite detention during hostilities
is what we are talking about, I presume.
Major Frakt. Well, in that case, the nature of the
hostilities need to be more clearly defined.
Mr. Nadler. In law or in the case?
Major Frakt. In law or in----
Mr. Nadler. Or in the specific case.
Major Frakt. Well, I think the Administration needs to
define how--what the conflict is and how we will know when it
ends.
Mr. Nadler. And until it defines that, you can't hold
someone as an enemy combatant?
Major Frakt. Well, I think there is--clearly, we are in an
armed conflict in Afghanistan, as well as Iraq, but let's say
that that conflict comes to a close, as I hope it will. Are we
still going to be in a war against al-Qaida and Taliban
elsewhere? Probably.
So I think we have to define what the conflict is.
Mr. Nadler. That is defining the conflict in Afghanistan as
one conflict, the conflict with--in Somalia as another, as
opposed to a worldwide conflict.
Major Frakt. Yes.
Mr. Nadler. Mr. Fidell, could you comment on that very
briefly, please?
Mr. Fidell. The idea, unfortunately, took root under the
administration of President George W. Bush that we were in
basically perpetual war.
We cannot have such a doctrine and yet also have indefinite
detention, because that means detention to the end of time. It
is for reasons like that that we have to rely on the Federal
courts to be available in a meaningful way, as they have proven
to be, ultimately, in the habeas cases.
Mr. Nadler. Thank you. Thank you.
Colonel Masciola, what are the key reforms--no, skip that
one. Okay. I have exhausted my time. I yield.
I recognize the gentleman from Massachusetts.
Mr. Delahunt. First of all, thank you all for excellent
testimony, and you are providing a great service to the country
and to this particular discussion, which is very important.
I can assure you, Colonel, that I agree totally with you in
terms of adequate resources, and when I hear the convening
authority--you know, 46 out of 57, I am reminded of the fact
that we had a convening authority that allegedly made
statements about, you know, ``This is about convictions, not
about acquittals. We are not going to have any acquittals.'' It
was reported in the newspaper.
That doesn't mean it is true, but if that is the case, that
I find repugnant and offensive, and again adds to why we need
to do--to close Guantanamo and to move forward in a way that I
think you are all suggesting.
Mr. Engel, I heard you say captured on the battlefield. You
know, when we talk about the military commission, and you use
terms like captured by our forces--that is why I posed the
question to the earlier panel about, you know, how many were
actually captured by our forces.
Would you make a distinction between individuals that are
captured by American forces or are bought by Americans to--on
the basis of some poor Afghani or Pakistani saying that they
are terrorists?
Mr. Engel. Well, I wouldn't distinguish the legal matter
specifically with respect to who made the capture. I fully
agree with you that it is very important that we make sure that
the folks that we are holding are, in fact----
Mr. Delahunt. Is that truly----
Mr. Engel [continuing]. Enemies of our country. That is----
Mr. Delahunt. Is that truly----
Mr. Engel. We agree about that.
Mr. Delahunt. Is that truly a capture?
Mr. Engel. Sorry? I mean, we----
Mr. Delahunt. Is that a capture when we buy them?
Mr. Engel. I think when we invaded Afghanistan at the
time----
Mr. Delahunt. Right.
Mr. Engel [continuing]. We fought with a number of local
forces there and----
Mr. Delahunt. I understand.
Mr. Engel [continuing]. Benefitted from that. When we were
successful in routing Afghan and al-Qaida forces at Tora Bora,
they went east and they went into Pakistan, and we had a number
of highly significant captures and the like----
Mr. Delahunt. That is fine.
Mr. Engel [continuing]. Which was done by--you know, by our
allies and co-belligerents, and folks--you know, and people
from the government of Pakistan as well.
It is important to make sure that we have the right people,
clearly.
Mr. Delahunt. Right.
Mr. Engel. And it----
Mr. Delahunt. We got a lot of the wrong people,
unfortunately.
Mr. Engel [continuing]. It becomes more--it becomes more
difficult when there are circumstances----
Mr. Delahunt. Right.
Mr. Engel [continuing]. In which other governments or----
Mr. Delahunt. But would----
Mr. Engel [continuing]. Foreign governments are providing
that.
Mr. Delahunt [continuing]. Would you feel comfortable
relying on information coming from the Pakistani--you know, the
ISI, who were, you know, given by tribal leaders, you know,
four Uighur detainees----
Mr. Engel. I----
Mr. Delahunt [continuing]. Who had absolutely, you know,
nothing at their disposal to determine whether they were
terrorists or not?
Mr. Engel. As a general matter, not speaking about the
specific cases----
Mr. Delahunt. Okay.
Mr. Engel [continuing]. And intelligence information, we
have relied and continue to rely upon the Pakistani
intelligence services for very important information. They are
an important ally in--you know, in this armed conflict, both
since----
Mr. Delahunt. Both for----
Mr. Engel [continuing]. Early 2001 and----
Mr. Delahunt [continuing]. Us and for our enemy, I would
suggest. Right. I mean, we----
Mr. Engel. Your other jurisdiction.
Mr. Delahunt. Right.
Mr. Engel. I think think the Uighurs is a difficult case.
And it was recognized, you know----
Mr. Delahunt. Early on.
Mr. Engel [continuing]. By the--early on.
Mr. Delahunt. Early on by the Bush administration.
Mr. Engel. I mean, the Uighurs were not cleared for release
on January 21, 2009----
Mr. Delahunt. Well, because we didn't have CSRTs then.
Mr. Engel. Sorry?
Mr. Delahunt. We didn't have CSRTs.
Mr. Engel. Yes--I----
Mr. Delahunt. On January 21?
Mr. Engel. Oh. Oh, right--CSRTs. Well, I mean, that system
was stopped, frankly, after the Boumediene decision made clear
that we would move all of the litigation to Federal court----
Mr. Delahunt. Do you have any comments about that system?
Mr. Engel. Well, that system was devised and developed
based upon the model of Article 5 of the Geneva Conventions. I
know that there have been individuals within the Department of
Defense who have expressed critical opinions as to the
administration of the CSRT system.
Mr. Delahunt. It was in the implementation.
Mr. Engel. I also know that there have been a--there have
been many folks within the Department of Defense who have come
and testified and defended the system.
Certainly, in its rules it was modeled after Article 5 of
the Geneva Conventions, based really upon the Supreme Court's
guidance.
Mr. Delahunt. Mr. Fidell, give me your--I will throw this
out, because I do have a particular interest.
Mr. Fidell. Look, this train ran off the tracks when the
government decided not to use the procedures set out in Army
Regulation 190-8. That regulation had been on the books for
years. We used the Article 5 screening tribunals that are
supposed to separate the wheat from the chaff, who is a POW and
who isn't, to very good effect in the first Gulf War.
And it turned out that I think two-thirds or maybe three-
quarters of the people who had been apprehended, have come into
our custody----
Mr. Delahunt. Arrived on our doorstep.
Mr. Fidell [continuing]. Arrived on our doorstep----
Mr. Delahunt. For $5,000.
Mr. Fidell [continuing]. Were sent home. They served the
purpose. And that is what should have been done. For that, the
Bush administration has to accept responsibility. It was----
Mr. Delahunt. One more final question.
Mr. Fidell. It was a blunder.
Mr. Delahunt. Major, I will tell you what I find
particularly aggravating--and I don't usually attend classified
briefings because I find they have very little value.
And I can always read them the next day in the newspaper,
because they are leaked by the executive. We all know that. And
of course, they are concerned about us leaking, which I really
find kind of humorous.
In any event, I have heard of plea agreements where even
release--paroles, I think, is the right term--where as part of
the parole agreement the detainee is--has to sign something
that he will not in any way discuss anything about his
treatment, et cetera, et cetera. Can you comment on that?
Major Frakt. Yes, Mr. Delahunt. There has only been one
plea agreement that has come to fruition at Guantanamo, and
that involved Mr. David Hicks, an Australian. And he did sign a
number of conditions as part of that agreement.
And you know, people will sign anything to get out of
Guantanamo. And whether that was under duress and whether it
was legal I don't have any special insight into.
But I would note that what he was convicted of, which was
material support for terrorism, the Obama administration has
now acknowledged is not a war crime. So his conviction is very
seriously in question.
Mr. Fidell. There ought to be a law forbidding the----
Mr. Nadler. The gentleman's time has expired.
Mr. King. Mr. Chairman, I will yield my time.
Mr. Nadler. The gentleman's----
Mr. Fidell. There ought to be a law forbidding the
extraction of any kind of signed statement as a condition of
release.
Only today or yesterday the newspapers reported that the
Iranian authorities, when they released young people who had
been taken into custody during the recent upheaval in Iran,
were being required to sign documents saying they had been
treated nicely by the Iranian prison authorities.
So anything like that should be really taken with a very
large grain of salt.
Mr. Nadler. I thank the gentleman.
I thank the gentleman for yielding.
All time is expired. We have 2 minutes left on the vote.
Without objection, all Members--I thank the witnesses.
Without objection, all Members have 5 legislative days to
submit to the Chair additional written questions for the
witnesses which we will forward and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
Again, we thank the witnesses for their patience and for
their testimony.
With that, this hearing is adjourned.
[Whereupon, at 5:43 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
