S. Hrg. 111-190
LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES
FOR VIOLATIONS OF THE LAW OF WAR
=======================================================================
HEARING
before the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 7, 2009
__________
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20402-0001
COMMITTEE ON ARMED SERVICES
CARL LEVIN, Michigan, Chairman
EDWARD M. KENNEDY, Massachusetts JOHN McCAIN, Arizona
ROBERT C. BYRD, West Virginia JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JEFF SESSIONS, Alabama
JACK REED, Rhode Island SAXBY CHAMBLISS, Georgia
DANIEL K. AKAKA, Hawaii LINDSEY GRAHAM, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
E. BENJAMIN NELSON, Nebraska MEL MARTINEZ, Florida
EVAN BAYH, Indiana ROGER F. WICKER, Mississippi
JIM WEBB, Virginia RICHARD BURR, North Carolina
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
MARK UDALL, Colorado SUSAN M. COLLINS, Maine
KAY R. HAGAN, North Carolina
MARK BEGICH, Alaska
ROLAND W. BURRIS, Illinois
Richard D. DeBobes, Staff Director
Joseph W. Bowab, Republican Staff Director
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
Legal Issues Regarding Military Commissions and the Trial of Detainees
for Violations of the Law of War
july 7, 2009
Page
Johnson, Hon. Jeh C., General Counsel, Department Of Defense..... 7
Kris, Hon. David S., Assistant Attorney General, National
Security Division, Department Of Justice....................... 9
MacDonald, VADM Bruce E., USN, Judge Advocate General, United
States Navy.................................................... 12
Hutson, RADM John D. USN (Ret.), Former Judge Advocate General of
the Navy....................................................... 43
Altenburg, MG John D. Jr., USA (Ret.), Former Appointing
Authority for Military Commissions............................. 46
Marcus, Daniel, Fellow in Law and Government, Washington College
of Law, American University.................................... 50
Annex A.......................................................... 138
Annex B.......................................................... 140
Annex C.......................................................... 143
Annex D.......................................................... 149
(iii)
LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES
FOR VIOLATIONS OF THE LAW OF WAR
----------
TUESDAY, JULY 7, 2009
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in room
SD-106, Dirksen Senate Office Building, Senator Carl Levin
(chairman) presiding.
Committee members present: Senators Levin, Lieberman, Reed,
Bill Nelson, Ben Nelson, Webb, Udall, Hagan, Begich, McCain,
Inhofe, Sessions, Chambliss, Graham, Thune, Martinez, and
Collins.
Committee staff members present: Richard D. DeBobes, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Gerald J. Leeling, counsel;
Peter K. Levine, general counsel; and William G.P. Monahan,
counsel.
Minority staff members present: Joseph W. Bowab, Republican
staff director; Richard H. Fontaine, Jr., deputy minority staff
director; Michael V. Kostiw, professional staff member; and
David M. Morriss, minority counsel.
Staff assistants present: Mary C. Holloway, Paul J.
Hubbard, and Christine G. Lang.
Committee members' assistants present: James Tuite,
assistant to Senator Byrd; Christopher Griffin, assistant to
Senator Lieberman; Carolyn A. Chuhta, assistant to Senator
Reed; Neal Higgins, assistant to Senator Bill Nelson; Ann
Premer, assistant to Senator Ben Nelson; Patrick Hayes,
assistant to Senator Bayh; Gordon I. Peterson, assistant to
Senator Webb; Roger Pena, assistant to Senator Hagan; Lindsay
Young, assistant to Senator Begich; Gerald Thomas, assistant to
Senator Burris; Anthony J. Lazarski, assistant to Senator
Inhofe; Lenwood Landrum and Sandra Luff, assistants to Senator
Sessions; Clyde A. Taylor IV, assistant to Senator Chambliss;
Adam G. Brake, assistant to Senator Graham; Jason Van Beek,
assistant to Senator Thune; Dan Fisk and Brian W. Walsh,
assistants to Senator Martinez; and Chip Kennett, assistant to
Senator Collins.
OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN
Chairman Levin. Good morning, everybody. The committee
meets today to consider the important issue of military
commissions and the trial of detainees for violations of the
law of war.
On June 25, the committee unanimously voted to include a
provision on military commissions in the National Defense
Authorization Act (NDAA) for Fiscal Year 2010. This bill has
now been sent to the full Senate for its consideration. I thank
Ranking Member Senator McCain as well as Senator Graham and all
the members of the committee for their work on this important
matter.
In its 2006 decision in the Hamdan case, the Supreme Court
held that Common Article III of the Geneva Conventions
prohibits the trial of detainees for violations of the law of
war, unless the trial is conducted ``by a regularly constituted
court, affording all of the judicial guarantees which are
recognized as indispensable by civilized peoples.'' The court
concluded that: ``The regular military courts in our system are
the courts-martial established by congressional statutes,'' but
that a military commission can be regularly constituted by the
standards of our military justice system ``if some practical
need explains deviations from court-martial practice.''
Similarly, the court found that the provision for
``judicial guarantees which are recognized as indispensable by
civilized peoples'' requires at a minimum that any deviation
from the procedures governing courts-martial be justified by
evident practical need.
The Supreme Court found that the military commissions
established pursuant to President Bush's military order of
November 13, 2001, fail to meet that test. The military
commissions subsequently authorized by Congress in the Military
Commissions Act (MCA) of 2006 also clearly fail to meet that
test as well because they deviate from court-martial practice
by permitting the routine use of coerced testimony, by
authorizing reliance on hearsay evidence even when direct
evidence is reasonably available, and by establishing a
presumption that the procedures and precedents applicable in
trials by court-martial will not apply to military commissions.
The double failure that I've just described to establish a
system that provides basic guarantees of fairness identified by
our Supreme Court has placed a cloud over military commissions
and has led some to conclude that the use of military
commissions can never be fair, credible, or consistent with our
basic principles of justice. While the previous Congress's
effort failed to meet the standards established by the Supreme
Court in the Hamdan case, I believe that military commissions
can be designed to meet those standards and that if they do
they can play a legitimate role in prosecuting violations of
the law of war.
President Obama has said that he believes this as well. In
his May 21, 2009, speech at the National Archives, the
President said: ``Military commissions have a history in the
United States dating back to George Washington and the
Revolutionary War. They are an appropriate venue for trying
detainees for violations of the laws of war. They allow for the
protection of sensitive sources and methods of intelligence-
gathering; they allow for the safety and security of
participants; and for the presentation of evidence gathered
from the battlefield that cannot always be effectively
presented in Federal courts.''
Continuing the quote of President Obama: ``Instead of using
the flawed commissions of the last 7 years, my administration
is bringing our commissions in line with the rule of law. We
will no longer permit the use of evidence as evidence
statements that have been obtained using cruel, inhuman, or
degrading interrogation methods. We will no longer place the
burden to prove that hearsay is unreliable on the opponent of
the hearsay, and we will give detainees greater latitude in
selecting their own counsel and more protections if they refuse
to testify.
``These reforms,'' he said, ``among others, will make our
military commissions a more credible and effective means of
administering justice, and I will work with Congress and
members of both parties, as well as legal authorities across
the political spectrum, on legislation to ensure that these
commissions are fair, legitimate, and effective.''
The procedures for military commissions have varied over
the years, as the procedures followed in our military justice
system have varied. The Supreme Court noted in the Hamdan case
that, while procedures governing trials by military commission
are typically those governing court-martial, the ``uniformity
principle'' is not an inflexible one. It does not preclude all
departures from the procedures dictated for use by court-
martial, but any departure, the Supreme Court said, ``must be
tailored to the exigency that necessitates it.''
That is the standard that we've tried to apply in adopting
the procedures for military commissions that we have included
in the bill that we referred to the full Senate. This new
language addresses a long series of problems with the military
commission procedures currently in law. For example, relative
to the admissibility of coerced testimony, the provision in our
bill would eliminate the double standard in existing law under
which coerced statements are admissible if they were obtained
prior to December 30, 2005.
Relative to the use of hearsay evidence, the provision in
our bill would eliminate the extraordinary language in the
existing law which places the burden on detainees to prove that
hearsay evidence introduced against them is not reliable and
probative.
Relative to the issue of access to classified evidence and
exculpatory evidence, the provision in our bill would eliminate
the unique procedures and requirements which have hampered the
ability of defense teams to obtain information and have led to
so much litigation. We would substitute the more established
procedures based on the Uniform Code of Military Justice
(UCMJ), with modest changes to ensure that the government
cannot be required to disclose classified information to
unauthorized persons.
Of great importance, the provision in our bill would
reverse the existing presumption in the MCA of 2006 that rules
and procedures applicable to trials by court-martial would not
apply. Our new language says, by contrast, that ``Except as
otherwise provided, the procedures and rules of evidence
applicable in trials by general court-martial of the United
States shall apply in trials by military commission under this
chapter.''
The exceptions to this rule are, as suggested by the
Supreme Court, carefully tailored to the unique circumstances
of the conduct of military and intelligence operations during
hostilities.
Three years ago when the committee considered similar
legislation on military commissions, I urged that we apply two
tests. First, will we be able to live with the procedures that
we establish if the tables are turned and our own troops are
subjected to similar procedures? Second, is the bill consistent
with our American system of justice and will it stand up to
scrutiny on judicial review? I believe those remain the right
questions for us to consider and that the language that we have
included in the NDAA for Fiscal Year 2010 meets both tests.
Over the last 3 years, we have seen the legal advisor to
the Convening Authority for Military Commissions forced to step
aside after a military judge found that he had compromised his
objectivity by aligning himself with the prosecution. We have
had prosecutors resign after making allegations of improper
command influence and serious deficiencies in the military
commission process. We have had the chief defense counsel raise
serious concerns about the adequacy of resources made available
to defendants in military commission cases, writing that,
``Regardless of its other procedures, no trial system will be
fair unless the serious deficiencies in the current system's
approach to defense resources are rectified.''
So even if we're able to enact new legislation that
successfully addresses the shortcomings in existing law, we
still have a long way to go to restore public confidence in
military commissions and the justice that they produce.
However, we will not be able to restore confidence in military
commissions at all unless we first substitute new procedures
and language to address the problems with the existing statute.
Again, I want to thank Senator McCain, Senator Graham, and
the other members of the committee for all of the work that
they've put into this bill and to this issue. The Senate will
be considering the entire bill, including these provisions,
hopefully starting next Monday or Tuesday.
Senator McCain.
Senator McCain. Mr. Chairman, Senator Inhofe has asked to
make a brief comment if that's agreeable to you.
Chairman Levin. Sure, of course.
Senator Inhofe. I thank the ranking member for this
courtesy. I'm the ranking member on the Environment and Public
Works Committee, and we have a hearing that's going on at the
same time. I do have a list of questions I'll be submitting for
the record, including such things as the impact of placing
detainees in the U.S. prison system pre-trial and post-trial,
the security risks of escape, where these detainees will be
tried and at what risk, the advantages of using the complex
we've all seen down there, the Expeditionary Legal Complex that
is designed for tribunals, the rules of evidence that are
between a tribunal and a Federal court system, and lastly some
questions about the advisability of reading Miranda rights to
captured terrorists.
I thank you, and I will be submitting these and I
appreciate the opportunity to make that statement.
Chairman Levin. Thank you, Senator Inhofe.
Senator McCain.
STATEMENT OF SENATOR JOHN McCAIN
Senator McCain. Thank you, Mr. Chairman. I want to join you
in welcoming our witnesses on both panels this morning. I
appreciate your scheduling the hearing and I appreciate the
expert advice and experience in these matters that our
witnesses bring to our discussions on military commissions and
detainee policy.
This committee has led the way in dealing with detainee
issues and developing legislation on detainee matters,
sometimes in cooperation with the White House and sometimes
over its strong objections. The NDAA for Fiscal Year 2010,
which was reported out of this committee unanimously on June
25, 2009, again takes a leading role by including changes to
the MCA of 2006.
I'm pleased to have worked with you and Senator Graham and
others on this legislation. While we haven't resolved all the
thorny issues that military commissions and other aspects of
detainee policy present, I believe we've made substantial
progress that will strengthen the military commissions system
during appellate review, provide a careful balance between
protection of national security and American values, and allow
the trials to move forward with greater efficiency toward a
just and fair result.
The first panel is composed of experts in national security
and legal matters from within the government, including senior
officials of the Department of Defense (DOD), Department of
Justice (DOJ), and our uniformed Judge Advocate General (JAG)
Corps. The witnesses on our second panel have similar practical
and academic experience, but are now outside the government.
I'm particularly interested in hearing the views of witnesses
on both panels on problems that have been encountered
implementing the current military commissions system, including
the speed of bringing cases to trial and what should be done to
make the system work more smoothly, ways in which to deal with
the important issue of protection of classified information,
whether the current military commissions system adequately
addresses alleged terrorist acts by al Qaeda and its operatives
that occurred before the attacks on September 11, 2001, such as
the bombing of the USS Cole and our East African embassies,
whether the rules on use of hearsay testimony at trial strike
the right balance between the conditions of an ongoing war or
whether improvements should be made, whether the definition of
``unlawful enemy combatant'' or ``unprivileged belligerent''
should be modified, whether changes should be made in the
appellate review of military commissions.
While our hearing today is focused on military commissions
and the trial of detainees for violations of the law of war,
there are a number of enormously difficult issues related to
detainee policy that we must also come to grips with in a
comprehensive fashion before we can close the detention
facility at Guantanamo Bay, as President Obama has pledged to
do.
Mr. Chairman, the issues presented by the detainees at
Guantanamo and overseas in Afghanistan are among the most
difficult policy decisions this administration faces. I look
forward to hearing the views of our witnesses and working with
you on these matters as the DOD bill moves forward toward floor
consideration and conference with the House of Representatives.
Thank you, Mr. Chairman.
[The prepared statement of Senator McCain follows:]
Prepared Statement by Senator John McCain
Mr. Chairman, I want to join you in welcoming our witnesses on both
panels this morning. I appreciate you scheduling this hearing, and I
appreciate the expert advice and experience in these matters that our
witnesses bring to our discussions on military commissions and detainee
policy.
This committee has led the way in dealing with detainee issues and
developing legislation on detainee matters, sometimes in cooperation
with the White House and sometimes over its strong objections. The
National Defense Authorization Act for Fiscal Year 2010, which was
reported out of this committee unanimously on June 25, again takes a
leading role by making recommendations for changes to the Military
Commissions Act of 2006. I have worked with you in this effort, as has
Senator Lindsey Graham. While we have not resolved all the thorny
issues that military commissions and other aspects of detainee policy
present, I believe we have made substantial progress that will
strengthen the military commissions system during appellate review,
provide a careful balance between protection of national security and
American values, and allow the trials to move forward with greater
efficiency toward a just and fair result.
Our first panel is composed of experts in national security and
legal matters from within the government, including senior officials of
the Defense Department, Justice Department, and our uniformed Judge
Advocate General's Corps. The witnesses on our second panel have
similar practical and academic experience who are now outside the
government. I am particularly interested in hearing the views of
witnesses on both panels on:
Problems that have been encountered implementing the
current military commissions system, including the speed of
bringing cases to trial, and what should be done to make the
system work more smoothly;
Issues dealing with the protection of classified
information and the process of providing declassified
substitutes or summaries to the detainee and his legal team and
whether these procedures can be made more efficient while still
protecting national security;
Whether the current military commissions system
adequately addresses alleged terrorist acts by al Qaeda and its
operatives that occurred before the attacks on September 11,
2001, such as the bombing of the USS Cole and our East Africa
embassies;
Whether the rules on use of hearsay testimony at trial
strike the right balance given the conditions of an ongoing war
or whether improvements should be made;
Whether the definition of ``unlawful enemy combatant''
or ``unprivileged belligerent'' should be modified;
Whether changes should be made in the appellate review
of military commissions.
While our hearing today is focused on military commissions and the
trial of detainees for violations of the law of war, there are a number
of enormously difficult issues related to detainee policy that we must
also come to grips with in a comprehensive fashion before we can close
the detention facility at Guantanamo Bay, as President Obama has
pledged to do. I would also like the witnesses to provide their views
on:
How would you propose sorting cases that should be
tried in Article III Federal courts and those that should be
tried before a military commission;
What happens to detainees who are found ``not guilty''
at trial;
Where should detainees who are convicted of war crimes
be incarcerated;
What sort of system should apply to those detainees
who we cannot try, but who are too dangerous to release;
What sort of review should apply to those detainees
captured off the battlefield, but who are held in battlefield
detention facilities such as those at Bagram Air Base in
Afghanistan;
How can we best ensure that those detainees who are
released to another country don't return to the fight;
If all the detainees cannot be tried or repatriated to
another country by January 2010, what should we do about
closing Guantanamo?
Mr. Chairman, the issues presented by the detainees at Guantanamo
and overseas in Afghanistan are among the most difficult policy
decisions this administration faces. I look forward to hearing the
views of our witnesses and to working with you on these matters as the
National Defense Authorization Act moves ahead toward floor
consideration and conference with the House of Representatives. I am
convinced that we must solve these difficult issues now and I am
committed to doing so. Thank you.
Chairman Levin. Thank you so much, Senator McCain.
We'll first now hear from our inside panel, first the
General Counsel for DOD, Jeh Johnson.
STATEMENT OF HON. JEH C. JOHNSON, GENERAL COUNSEL, DEPARTMENT
OF DEFENSE
Mr. Johnson. Thank you very much, Mr. Chairman, Senator
McCain, members of this committee. You have my prepared
statement. I will dispense with the full reading of it and just
make some abbreviated opening comments here.
Chairman Levin. All the statements will be made part of the
record in full.
Mr. Johnson. Thank you.
I want to thank this committee for taking the initiative on
a bipartisan basis to seek reform of military commissions. In
his speech, as the chairman remarked, at the National Archives
on May 21, President Obama called for the reform of military
commissions and pledged to work with Congress to amend the MCA
of 2006. Speaking on behalf of the administration, we welcome
the opportunity to be here today and to work with you on this
important initiative.
Military commissions can and should contribute to our
national security by becoming a viable forum for trying those
who violate the laws of war. By working to improve military
commissions, to make the process more fair and credible, we
enhance our national security by providing the government with
effective alternatives for bringing to justice those
international terrorists who violate the laws of war.
Those are the remarks I wanted to make initially. Senator,
I look forward to your questions.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement by Jeh Charles Johnson
Mr. Chairman and Senator McCain, thank you for the opportunity to
testify here today.
I also thank this committee for taking the initiative, on a
bipartisan basis, to seek reform of military commissions. In his speech
on May 21 at the National Archives, President Obama called for the
reform of military commissions, and pledged to work with Congress to
amend the Military Commissions Act. So, speaking on behalf of the
administration, we welcome the opportunity to be here today, and to
work with you on this important initiative.
Military commissions can and should contribute to our national
security by becoming a viable forum for trying those who violate the
law of war. By working to improve military commissions to make the
process more fair and credible, we enhance our national security by
providing the government with effective alternatives for bringing to
justice those international terrorists who violate the law of war.
In May, the administration announced five changes to the rules for
military commissions that we believe go a long way towards improving
the process. (I note that those changes were developed initially within
the Defense Department, in consultation with both military and civilian
lawyers, and have the support of the Military Department Judge
Advocates General, the Staff Judge Advocate to the Commandant of the
Marine Corps, and the Legal Counsel to the Chairman of the Joint Chiefs
of Staff). My Defense Department colleagues and I have had an
opportunity to review the language this committee has included in the
National Defense Authorization Act, and it is our basic view that the
committee has identified virtually all of the same elements we believe
are important to further improve the military commissions process. We
are confident that through close cooperation between the administration
and Congress, reformed military commissions can emerge from this effort
as a fully legitimate forum, one that allows for the safety and
security of participants, for the presentation of evidence gathered
from the battlefield that cannot always be effectively presented in
Federal court, and for the just resolution of cases alleging violations
of the law of war.
There are several changes to the Military Commissions Act reflected
in the proposed legislation which I would like to highlight here, and
which the administration supports:
First, consistent with the rules changes approved by the Secretary
of Defense and submitted to Congress in May, the legislation codifies a
ban on the use in court of statements that were obtained by
interrogation methods that amount to cruel, inhuman, or degrading
treatment. In my view, this change is a big one. The most prominent
criticism we hear of the current Military Commissions Act is that it
permits the use of such statements, if obtained before December 30,
2005. The statutory change which eliminates this possibility--by
itself--will go a long way towards enhancing the legitimacy and
credibility of commissions.
Second, I note that the legislation amends current law to clarify
the government's obligations to disclose exculpatory evidence to the
accused, including evidence that would tend to impeach the credibility
of a government witness, or serve as mitigation evidence at time of
sentencing. This clarification of the government's obligations would be
consistent with the obligations prosecutors have now in civilian
courts.
Third, the legislation would modify the rules on hearsay evidence,
more closely resembling the rules used in civilian courts and in
courts-martial.
Fourth, the legislation codifies our rules change to provide the
accused with more latitude in the selection of military defense
counsel, again making commissions' rules closer to those in courts-
martial.
Fifth, the legislation discontinues the use of the phrase
``unlawful enemy combatant.'' We in the administration, effective March
13, have also discontinued using the phrase in our court filings
identifying who we believe we have the authority to detain at
Guantanamo.
The administration supports these changes to existing law, though
you will note that we prefer somewhat different language in several
instances. As I said before, we believe that reformed military
commissions can and should contribute to national security by affording
a venue for bringing to justice those who violate the law of war, and
for doing so in a manner that reflects American values of justice and
fairness. We believe these reforms serve that purpose.
When considering this legislation, the administration asks that
Congress also consider the following:
First, in section 948r, concerning statements of the accused that
can be admitted at trial, we ask that you consider the express
incorporation of a ``voluntariness'' standard that, consistent with
current law, takes account of the unique challenges and circumstances
of the battlefield setting. We do not believe that soldiers on a
battlefield should be required or even encouraged to provide Miranda-
like warnings to those they capture--and we note that the current
legislation expressly states that Article III1 of the Uniform Code of
Military Justice is not applicable to military commissions. Article
III1 requires Miranda-like warnings prior to official questioning of
servicemembers regarding alleged crimes.
The essential mission of our Nation's military is to capture or
kill the enemy, not to engage in evidence collection for eventual
prosecution. However, in both American civilian courts and courts-
martial, statements of an accused are normally admitted only in the
event they are found to be ``voluntary.'' There is a concern that, as
military commissions prosecutions progress, military commission judges
and courts may apply this standard without taking adequate account of
the critical circumstances. Thus, rather than jeopardize future
prosecutions and convictions because a statement was admitted at trial
that was not considered ``voluntary,'' the administration believes we
should specifically codify a standard to assess voluntariness that,
consistent with current law, accounts for the realities of military
operations. This will decrease the likelihood that combat objectives
may be confused with a law enforcement mission, while ensuring that
valid convictions before military commissions will be sustained on
appeal.
Second, we note that the legislation incorporates certain of the
classified evidence procedures currently applicable in courts-martial,
where there is relatively little precedent and practice regarding
classified information. We, in the administration, believe that further
work could be done to codify the protections of classified evidence, in
a manner consistent with the protections that now exist in Federal
civilian courts. We believe that those protections would work better to
protect classified information, while continuing to ensure fairness and
providing a stable body of precedent and practice for doing so.
Third, concerning hearsay, while welcoming the committee's further
regulation of the use of such evidence, we in the administration
recommend somewhat different language for achieving this result that we
look forward to discussing in more detail.
Fourth, we look forward to working with Congress to ensure that the
offenses that may be prosecuted in a military commission are consistent
with the law of war. We note that section 950p of the Military
Commissions Act contains a statement recognizing that the offenses
codified by that Act are ``declarative of existing law,'' and ``do not
preclude trial for crimes that occurred before enactment'' of the law.
The committee replaced the language currently in section 950p with
similar, but not identical, language. The administration supports this
type of statement, though we prefer the existing language in section
950p. I note also that the committee bill retains the offense of
providing material support for terrorism. After careful study, the
administration has concluded that appellate courts may find that
``material support for terrorism''--an offense that is also found in
Title 18--is not a traditional violation of the law of war. The
President has made clear that military commissions are for law of war
offenses. We thus believe it would be best for material support to be
removed from the list of offenses triable by military commission, which
would fit better with the statute's existing declarative statement.
We also believe that conspiracy, unlike material support, can in
many cases be properly charged in military commissions as a traditional
law of war offense, and we welcome the retention of that offense in the
committee bill. As a former prosecutor, it is my belief that by
definition, many material support cases are also conspiracy cases.
With the removal of material support, we are supportive of
recognizing the law of war origins of all codified offenses.
Fifth, we agree with the committee that the scope of appellate
review must be expanded to include review of factual as well as legal
matters. However, we believe that an appellate court paralleling that
of the service Courts of Criminal Appeals under Article 66 of the
Uniform Court of Military Justice, with additional review by the U.S.
Court of Appeals for the DC Circuit, would best achieve the legitimacy
and credibility we all seek.
In conclusion, I thank you again for taking the initiative in this
important area of national security, and I look forward to your
questions.
Chairman Levin. Thank you very much, Mr. Johnson.
Next is the Assistant Attorney General for National
Security Division (NSD) at DOJ, David Kris.
Mr. Kris.
STATEMENT OF HON. DAVID S. KRIS, ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE
Mr. Kris. Thank you, Mr. Chairman, Senator McCain, and
members of the committee. I come from DOJ and this is my first
appearance before this committee. I thought I might begin just
by briefly explaining how I think my work relates to that of
the committee with respect to military commissions.
NSD, which I lead, combines all of DOJ's major national
security personnel and functions. Our basic mission is to
protect national security consistent with the rule of law and
civil liberties. In keeping with that, we support all lawful
methods for achieving that protection, including but not
limited to prosecution in an Article III court or before a
military commission.
In the last administration, NSD assembled a team of
experienced Federal prosecutors drawn from across the country
to assist the DOD Office of Military Commissions (OMC) and
litigate cases at Guantanamo Bay, Cuba (GTMO). I can assure you
that assistance will continue. The man who led that team for
NSD is now my deputy and a member of that team has since been
recalled to active duty and is now the lead prosecutor at OMC.
As the President explained, when prosecution is feasible
and otherwise appropriate we will prosecute terrorists in
Federal court or in military commissions. In the 1990s, I
prosecuted a group of violent extremists and, like their more
modern counterparts, they engaged in extensive ``law-fare,''
which made the trials challenging. But the prosecution
succeeded, not only because it incarcerated these defendants,
some of them for a very long time indeed, but also because it
deprived them of any shred of legitimacy.
Military commissions can help do the same for those who
violate the law of war--not only detain them for longer than
might otherwise be possible under the law of war, but also
brand them as illegitimate war criminals. To do this
effectively, however, the commissions themselves must first be
reformed, and the committee's bill is a tremendous step in that
direction. As you know from my written testimony and that of
Mr. Johnson and Admiral MacDonald, the administration
appreciates the bill very much and supports much of it. You
have made an incredibly valuable contribution with the bill.
I want to thank you again for inviting me here and I look
forward to answering your questions.
[The prepared statement of Mr. Kris follows:]
Prepared Statement by Hon. David Kris
Chairman Levin, Ranking Member McCain, and members of the Armed
Services Committee, thank you for the opportunity to discuss
legislation that would reform the Military Commissions Act (MCA) of
2006. A task force established by the President is actively reviewing
the detainees held at Guantanamo Bay to determine whether they can be
prosecuted or safely transferred to foreign countries. As the President
stated in his May 21 speech at the National Archives, where feasible we
plan to prosecute in Federal court those detainees who have violated
our criminal law. Prosecution is one way--but only one way--to protect
the American people, and the Federal courts have proven on many
occasions to be an effective mechanism for dealing with dangerous
terrorists.
The President has also made clear that he supports the use of
military commissions to prosecute those who have violated the laws of
war, provided that necessary reforms are made. Military commissions
have a long history in our country dating back to the Revolutionary
War. Properly constructed, they take into account the reality of
battlefield situations and military exigencies, while affording the
accused due process. The President has pledged to work with Congress to
ensure that the commissions are fair, legitimate, and effective, and we
are all here today to help fulfill that pledge. I thank this Committee
for leading the effort to develop legislation on this important
national security issue.
On May 15, the administration announced five rule changes as a
first step toward meaningful reform. These rule changes prohibited the
admission of statements obtained through cruel, inhuman, and degrading
treatment; provided detainees greater latitude in the choice of
counsel; afforded basic protections for those defendants who refuse to
testify; reformed the use of hearsay by putting the burden on the party
trying to use the statement; and made clear that military judges may
determine their own jurisdiction. Each of these changes enhances the
fairness and legitimacy of the commission process without compromising
our ability to bring terrorists to justice.
These five rule changes were an important first step. This
committee has now taken the next step by drafting legislation to enact
more extensive changes to the MCA on a number of important issues. The
administration believes the committee's bill identifies many of the key
elements that need to be changed in the existing law in order to make
the commissions an effective and fair system of justice. We think the
bill is a good framework to reform the commissions, and we are
committed to working with you on it. With respect to some issues, we
think the approach taken by the committee is exactly right. In other
cases, we believe there is a great deal of common ground between the
administration's position and the provision adopted by the committee,
but we would like to work with you because we have identified a
somewhat different approach. Finally, there are a few additional issues
in the MCA that the committee's bill has not modified that we think
should be addressed. I will outline some of the most important issues
briefly today.
First, the committee's bill would bar admission of statements
obtained by cruel, inhuman, or degrading treatment. We support this
critical change so that neither statements obtained by torture nor
those obtained by other unlawful abuse may be used at trial.
However, we believe that the bill should also adopt a voluntariness
standard for the admission of statements of the accused--albeit a
voluntariness standard that takes account of the challenges and
realities of the battlefield and armed conflict. To be clear, we do not
support requiring our soldiers to give Miranda warnings to enemy forces
captured on the battlefield, and nothing in our proposal would require
this result, nor would it preclude admission of voluntary but non-
Mirandized statements in military commissions. Indeed, we note that the
current legislation expressly makes Article III1 of the Uniform Code of
Military Justice (UCMJ) inapplicable to military commissions, and we
strongly support that. There may be some situations in which it is
appropriate to administer Miranda warnings to terrorist suspects
apprehended abroad, to enhance our ability to prosecute them, but those
situations would not require that warnings be given by U.S. troops when
capturing individuals on the battlefield. Voluntariness is a legal
standard that is applied in both Federal courts and courts martial. It
is the administration's view that there is a serious risk that courts
would hold that admission of involuntary statements of the accused in
military commission proceedings is unconstitutional. Although this
legal question is a difficult one, we have concluded that adopting an
appropriate rule on this issue will help us ensure that military judges
consider battlefield realities in applying the voluntariness standard,
while minimizing the risk that hard-won convictions will be reversed on
appeal because involuntary statements were admitted.
Second, the committee has included a provision to codify the
Government's obligation to provide the defendant with exculpatory
evidence. We support this provision as well; we think it strikes the
right balance by ensuring that those responsible for the prosecution's
case are obliged to turn over exculpatory evidence to the accused,
without unduly burdening every Government agency with unwieldy
discovery obligations.
Third, the committee bill restricts the use of hearsay, while
preserving an important residual exception for certain circumstances
where production of direct testimony from the witness is not available
given the unique circumstances of military and intelligence operations,
or where production of the witness would have an adverse impact on such
operations. We support this approach, including both the general
restriction on hearsay and a residual exception, but we would propose a
somewhat different standard as to when the exception should apply,
based on whether the hearsay evidence is more probative than other
evidence that could be procured through reasonable efforts.
Fourth, we agree with the committee that the rules governing use of
classified evidence need to be changed, but we would do so in a fashion
that is more similar to the system provided in the Classified
Information Procedures Act (CIPA), as it has been interpreted by
Federal courts. While CIPA may need to be revised and updated in
important respects to address terrorism cases more effectively, we
believe it has generally worked well in both protecting classified
information and ensuring fairness of proceedings. Importing a modified
CIPA framework into the statute will provide certainty and
comprehensive guidance on how to balance the need to protect classified
information with the defendant's interests. It will also allow military
judges to draw on the substantial body of CIPA case law and practice
that has been developed over the years.
We are concerned with a provision in the committee bill that allows
the use of traditional CIPA practices--the use of deletions,
substitutions, or admissions--only after an agency head or original
classifying authority has certified that the evidence has been
declassified to the maximum extent possible. This provision has no
analogue in CIPA or the UCMJ, and it suggests a potentially burdensome
process of declassification where the traditional alternatives would be
more efficient and would adequately protect the rights of the accused.
We also believe there are a number of elements of CIPA law and practice
that would substantially improve the way classified information issues
are dealt with by the commissions, including for example establishing
clear guidance on the propriety of ex parte hearings on classified
information issues and setting substantive standards for provision of
classified evidence to the defense in discovery. We would be happy to
work with you and your staff on these issues.
Fifth, we share the objective of the committee to empower appellate
courts to protect against errors at trial by expanding their scope of
review, including review of factual as well as legal matters. We also
agree that civilian judges should be included in the appeals process.
However, we think an appellate structure that is based on the service
Courts of Criminal Appeals under Article 66 of the UCMJ, with
additional review by the U.S. Court of Appeals for the District of
Columbia Circuit under traditional standards of review, is the best way
to achieve this result.
There are two additional issues I would like to highlight today
that are not addressed by the committee bill that we believe should be
considered. The first is the offense of material support for terrorism
or terrorist groups. While this is a very important offense in our
counterterrorism prosecutions in Federal court under title 18 of the
U.S. Code, there are serious questions as to whether material support
for terrorism or terrorist groups is a traditional violation of the law
of war. The President has made clear that military commissions are to
be used only to prosecute law of war offenses. Although identifying
traditional law of war offenses can be a difficult legal and historical
exercise, our experts believe that there is a significant risk that
appellate courts will ultimately conclude that material support for
terrorism is not a traditional law of war offense, thereby reversing
hard-won convictions and leading to questions about the system's
legitimacy. However, we believe conspiracy can, in many cases, be
properly charged consistent with the law of war in military
commissions, and that cases that yield material support charges could
often yield such conspiracy charges. Further, material support charges
could be pursued in Federal court where feasible.
Finally, we think the bill should include a sunset provision. In
the past, military commissions have been associated with a particular
conflict of relatively short duration. In the modern era, however, the
conflict could continue for a much longer time. We think after several
years of experience with the commissions, Congress may wish to
reevaluate them to consider whether they are functioning properly or
warrant additional modification.
In closing, I want to emphasize again how much the administration
appreciates the committee's leadership, and the very thoughtful bill it
has drafted. While there may be some areas of the bill on which we
disagree with the approach taken or the specific language adopted, we
think this bill represents a major step forward and we are optimistic
that we can reach agreement on the important details. We would welcome
the opportunity to conduct further discussions.
Thank you again for the opportunity to testify today, and I will be
happy to answer any questions you have.
Chairman Levin. Thank you very much, Mr. Kris.
Admiral MacDonald.
STATEMENT OF VADM BRUCE E. MacDONALD, USN, JUDGE ADVOCATE
GENERAL, UNITED STATES NAVY
Admiral MacDonald. Thank you, Mr. Chairman, Senator McCain,
members of the committee. Thank you very much for providing me
with the opportunity to present my personal views of section
1031 of the NDAA.
In 2006 when this committee was working to establish a
permanent framework for military commissions through the MCA, I
had the opportunity to share my views with the Senate Judiciary
Committee and the House Armed Services Committee (HASC). At
that time I recommended that a comprehensive framework for
military commissions should clearly establish the jurisdiction
of the commissions, set baseline standards of structure,
procedure, and evidence consistent with U.S. law and the law of
war, and prescribe substantive offenses. I stated that the UCMJ
should be used as a model for the commissions process.
I am pleased to say that this committee's legislative
proposal addresses the concerns I had in 2006 following the
enactment of the MCA. Overall, I believe that this legislation
establishes a balanced framework to provide important rights
and protections to an accused, while also providing the
government with the means of prosecuting alleged alien
unprivileged enemy belligerents.
In reviewing your legislation, I would identify two areas
where additional clarity would be most helpful to our
practitioners. First, the legislation relies upon the current
courts-martial rules of evidence to address the handling of
classified information. Unfortunately, the cognizant military
rule, MRE-505, does not have a very robust history. Over time
we have discovered that, while MRE-505 has some benefits, the
military rules on the use of classified information fall short
of our overall goals.
On the other hand, for over 20 years Article III courts
have relied upon the Classified Information Procedures Act
(CIPA). In light of the history and experience of CIPA, as well
as the practical difficulties with the use of MRE-505 to date,
I recommend using a modified CIPA process as a touchstone for
military commissions going forward.
Second, I agree with the provision calling for the military
judge to evaluate the admissibility of allegedly coerced
statements using a totality of the circumstances test to
determine reliability. However, to assist our practitioners in
the field, I recommend that you develop a list of
considerations to be evaluated in making this determination.
Those considerations should include: the degree to which the
statement is corroborated; the indicia of reliability in the
statement itself; and to what degree the will of the person
making the statement was overborne.
Once again, thank you, Mr. Chairman, for the opportunity to
testify and I look forward to answering your questions.
[The prepared statement of Admiral MacDonald follows:]
Prepared Statement by VADM Bruce MacDonald, USN
Chairman Levin, Ranking Member McCain, and members of the Armed
Services Committee, thank you very much for giving me the opportunity
to testify today on the subject of military commissions.
In 2006, when this committee was working to establish a permanent
framework for military commissions through the Military Commissions
Act, I had the opportunity to share my views with the Senate Judiciary
Committee and House Armed Services Committee. At that time, I
recommended that a comprehensive framework for military commissions
should clearly establish the jurisdiction of military commissions, set
baseline standards of structure, procedure, and evidence consistent
with U.S. law and the law of war, and prescribe substantive offenses. I
stated that the Uniform Code of Military Justice (UCMJ) should be used
as a model for the commissions process. Although our experiences of the
last few years have shaped my perspectives on some of the rules that
should apply to military commissions, I am pleased to say that this
committee's legislative proposal addresses the concerns I had in 2006.
Overall, I believe that this legislative proposal establishes a
balanced framework to provide important rights and protections to an
accused while also providing the government with the means of
prosecuting alleged alien unprivileged enemy belligerents.
This legislation provides each accused with critical legal
protections. These include:
The right against self incrimination, the right to
compulsory process and a reasonable opportunity to obtain
witnesses and evidence, along with an expanded right to
exculpatory, as well as mitigating and impeachment evidence.
The right to be present during all sessions of trial
when evidence is to be offered and the right to confront
witnesses.
The right to self representation and the right to be
represented by detailed military counsel, an expanded right to
counsel of the accused's own choice if reasonably available,
and the right to civilian counsel at the accused's expense.
The right to appellate review, to include a review of
factual sufficiency identical to the type of review currently
conducted for courts-martial under the UCMJ.
Prosecution of alien unprivileged enemy belligerents has proven a
challenge over the last few years. Your legislation establishes a more
balanced framework to prosecute accused by modeling the procedures used
in general courts-martial under the UCMJ while recognizing the
exigencies that exist on the battlefield in time of war.
Specific highlights of the legislation that I support include:
A requirement that the government prove its case
beyond a reasonable doubt.
Protection against double jeopardy.
A requirement that the proponent of hearsay evidence
establish its reliability to an extent required by rules long
recognized in trials by general courts-martial.
Exclusion of statements obtained through the use of
torture or cruel, inhuman or degrading treatment. For other
statements, permits the military judge to determine
admissibility in the interests of justice based upon the
reliability of the statement under a totality of the
circumstances analysis.
Establishes clearly defined criminal offenses.
Continues to recognize and rely upon an independent
trial judiciary that has been the hallmark of military trials
under the UCMJ.
In short, this legislation strikes the right balance between
affording an accused the judicial guarantees recognized as
indispensable by civilized people and our national security concerns.
In reviewing your legislation, I believe that there are two areas
in which our practitioners would benefit from some additional clarity.
Section 949d provides for the use of rules of evidence
in trials by general courts-martial in the handling of
classified evidence. This is consistent with our overall desire
to use those procedures found within the UCMJ and the Manual
for Courts-Martial whenever possible. However, experience has
shown that practitioners struggle with a very complex and
unclear rule within the Military Rules of Evidence. The
military rules do not have a robust source of informative or
persuasive case law. Frankly, prosecutions using Military Rule
of Evidence 505 are rare. In developing the rules for the
handling of classified material during a military commission,
it would be more prudent to rely upon the Classified
Information Procedures Act (CIPA) used in Article III courts as
a starting point. The use of CIPA as a touchstone for drafting
provisions for use in the litigation of classified evidence in
military commissions, complete with the definitional guidance
that has developed over more than 20 years of jurisprudence in
Federal district courts, would provide practitioners with
additional clarity in the area of classified evidence.
Section 948r provides a test for determining the
admissibility of allegedly coerced statements. I recommend you
include a list of considerations a military judge should use in
evaluating the reliability of those statements. Those
considerations should include the degree to which the statement
is corroborated, the indicia of reliability within the
statement itself, and whether and to what degree the will of
the person making the statement was overborne.
Once again, thank you very much for this opportunity to share my
personal views on your legislation. I look forward to answering your
questions and working with the committee on this important endeavor.
Chairman Levin. Thank you very much, Admiral MacDonald.
As the Judge Advocate General of the U.S. Navy, your
testimony is obviously very, very important to us. You
emphasize that you're speaking in a personal capacity here
today and we understand that. We would ask, however, if there
are some differences between the uniformed Navy and your own
personal views. We will ask the Secretary if there are any such
differences. We assume Mr. Johnson is speaking for the entire
DOD, but since you put it that way we will make that inquiry of
the Secretary of the Navy.
Let's try a 6-minute round for questioning here. We have
not only two panels, but we also have a room which is reserved
for some other purpose previously at 12:30. I hope we'll have
enough time. We'll try a 6-minute first round.
Let me ask you first, Mr. Johnson. I quoted from the Hamdan
case in my opening remarks, saying that the court in Hamdan
said that ``the regular military courts in our system are the
courts-martial established by congressional statutes,'' but
they also said that a military commission can be regularly
constituted if there's a practical need that explains
deviations from court-martial practice. We attempted in our
language to do exactly that.
My question first of you is, in your view does our bill
conform to the Hamdan standards?
Mr. Johnson. Senator, as you noted, Hamdan was at a time
that the MCA of 2006 did not exist, as I recall. But the
holding of Hamdan was that military commissions--and I'm not
going to get this exactly right--but that military commissions
should depart from UCMJ courts only in situations of evident
practical need.
The proposed legislation, in our view definitely brings us
closer to the UCMJ model and the circumstances under which the
military commissions contemplated by this bill and UCMJ courts
differ are in our judgment circumstances that are necessary
given the needs here. For example, there is no Miranda
requirement imposed by this legislation. Article III1 of the
UCMJ is specifically excluded from application here. Article
III1 is what calls for Miranda warnings in UCMJ circumstances.
The legislation also takes what I believe is a very
appropriate and practical approach to hearsay. As you noted in
your opening remarks, Mr. Chairman, the burden is no longer on
the opponent to demonstrate that hearsay should be excluded.
There is a notice requirement in the proposed legislation and
if the proponent of the hearsay can demonstrate reliability and
materiality and that the declarant is not available as a
practical matter, given the unique circumstances of military
operations and intelligence operations, the hearsay could be
admitted.
Military commissions are fundamentally different from UCMJ
courts in that most often what you have in military justice is
the punishment of a member of the U.S. military for some
violation of the UCMJ, very often directed--of some sort of
domestic nature. Military commissions are obviously for
violations of the law of war. They are very often prosecuting
people captured on the battlefield and, just given the nature
of the way evidence is collected, there needs to be a
recognition that the military can't be expected to change how
it does business to engage in evidence collection on the
battlefield.
The way this legislation deals with the hearsay rules I
think is quite appropriate and is certainly an example of
evident practical need.
I would say the same when it comes to the rules on
authenticity set forth in this proposed legislation. There is
not a requirement like you would see in UCMJ courts or in
civilian courts for what we in civilian courts would know as a
strict chain of custody. There is a more practical approach,
given the needs of military operations and intelligence
collection.
Chairman Levin. Can I interrupt you there because of our
short time. If you could expand for the record any places where
you believe we fall short of complying with the Hamdan
standards, I'd appreciate that if you could do that for the
record.
Mr. Johnson. Yes, I'd be happy to.
Chairman Levin. You could expand your answer, too.
Mr. Johnson. Sorry for going on so long, Senator.
Chairman Levin. We only have 6 minutes.
Mr. Kris, let me ask you, representing DOJ: In your
judgment, do you believe that this bill as drafted, that these
provisions conform to the Hamdan standards?
Mr. Kris. Yes. To the extent that the uniformity principle
from Hamdan applies to a statutorily created system of
commissions, I think it is met here. Jeh mentioned some of the
differences and I think his justifications make sense. We have
some recommendations for change, but those aren't rooted in the
uniformity principle at all.
Chairman Levin. While I'm asking you questions, it's been
argued that it's not appropriate for DOD to prosecute
terrorists. Do you believe that it is appropriate for DOD to
prosecute alleged terrorists with these military commissions,
instead of DOJ doing all of the prosecuting in Article III
courts?
Mr. Kris. Yes. I think the President made clear in his May
21 speech that we will prosecute in Federal court and where
there is a law of war violation, we will also prosecute under a
reformed system of military commissions, we will also prosecute
law of war violations in those commissions. I think the
President said it best when he said that we need to be using
all instruments of national power against this adversary, and
that includes military commissions.
Chairman Levin. Thank you. My time has expired.
Senator McCain.
Senator McCain. Thank you, Mr. Chairman.
Mr. Johnson and Mr. Kris, if trials were held in Guantanamo
or the United States would there be any difference in the
proceedings?
Mr. Johnson. Senator, if military commissions were held in
the continental United States I think that we have to carefully
consider the possibility that some level of due process may
apply that the courts have not determined applies now. I think
that that assessment has to be carefully evaluated and
carefully made.
Senator McCain. What you're saying is that you believe
there could be some significant difference in procedure if the
trials were held in Guantanamo or in the United States of
America?
Mr. Johnson. I'm not sure I would be prepared to say
significant difference, Senator.
Senator McCain. I think it would be important for this
committee to know what your view is. It might have something to
do with the way that we shape legislation. If they're going to
have all kinds of additional rights if they are tried in the
United States of America as opposed to Guantanamo, I think that
the committee and the American people should know that.
Mr. Johnson. One of the things that I mentioned in my
prepared statement, Senator, is that when it comes to the
admissibility of statements the administration believes that a
voluntariness standard should apply that takes account of the
realities of military operations. We think that is something
that due process may require, particularly if the commissions
come to the United States, that the courts may impose a
voluntariness standard.
Senator McCain. I hope that you and Mr. Kris will provide
for the record what you think the differences in the process
would be as to the location of those trials. I think it's very
important. Certainly it is to me.
Mr. Kris, in your statement on page 2 you said: ``It's the
administration's view that there is a serious risk that courts
would hold the admission of involuntary statements of the
accused in military commission proceedings is
unconstitutional.'' Does that infer that these individuals have
constitutional rights?
Mr. Kris. Yes.
Senator McCain. They do? What are those constitutional
rights of people who are not citizens of the United States of
America, who were captured on a battlefield committing acts of
war against the United States?
Mr. Kris. Our analysis, Senator, is that the due process
clause applies to military commissions and imposes a
constitutional floor on the procedures that would govern such
commissions, including against enemy aliens.
Senator McCain. What would those be, Mr. Kris?
Mr. Kris. They'd be a number of due process-based rights,
one of which Mr. Johnson just mentioned, is we think there is a
serious risk that courts will find that a voluntariness
standard is required by the due process clause for admission
of----
Senator McCain. You are saying that these people who are in
Guantanamo, were part of September 11 or have committed acts of
war against the United States, are entitled to constitutional
rights of the Constitution of the United States of America?
Mr. Kris. Within the framework that I just described, I
think the answer is yes. The due process clause guarantees and
imposes some requirements--that's the way I think I would put
it--on the conduct and rules governing these commissions.
Senator McCain. Well, that's very interesting because I had
never proceeded under that assumption in drafting this
legislation and previous legislation. The fact is that they are
entitled to Geneva protections under the Geneva Conventions,
which apply, and the rules of war. I did not know nor know of
any time in American history where enemy combatants were given
rights under the U.S. Constitution.
Mr. Kris. I do think, Senator, there's a difference between
their rights--for example, they would not be entitled to the
rights under Geneva for prisoners of war because these are----
Senator McCain. No, their rights under the treatment of
enemy combatants, the Geneva Conventions Common Article III.
Mr. Kris. Yes. Okay, thank you.
Senator McCain. We now have established that it is the view
of the administration that enemy combatants or belligerents,
whatever new name you'd like to call them, are now entitled to
the constitutional rights of U.S. citizens?
Mr. Kris. Not at all. I don't think that that's right. I
mean, both in terms of how we would describe this as a due
process requirement that applies to the commissions even if
they are prosecuting enemy aliens; and also I don't think it's
right to equate the rights or the rules that are required for
commission proceedings against aliens necessarily with those
that would apply against U.S. citizens. Those might come out
differently. This is an extremely complicated area of law.
Senator McCain. It certainly is, Mr. Kris. But your
statement for the record was ``It's the administration's view
that there are serious risks that courts would hold that
admission of involuntary statements of the accused in military
commission proceedings is unconstitutional.''
Mr. Kris. Yes.
Senator McCain. Therefore it means that they have some
constitutional rights.
Mr. Chairman, I know that there are other questions of the
witnesses, and if there's a second round maybe I'll take
advantage of it. Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator McCain.
Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman. Thanks to the
witnesses.
Mr. Johnson, let me begin with an expression of
appreciation for the process that the administration has gone
through to come to the point that you're at today. For me as
we've gone through this deliberation about how to treat what I
call prisoners of war, that is those suspected of violating the
laws of war, it seems to me that we've had a hard time putting
this in the context of our own sets of fairness related to the
unique war we're in.
Obviously, this is a war against terrorists. They don't
fight in uniform. They don't fight, for the most part, for
nation states. This war may go on for a long time. Nonetheless,
it seemed to me along the way that there was no sense to those
who are arguing that these individuals apprehended for
violations of the law of war should be tried in our Federal
courts. In the sense that Senator McCain has just said, I don't
think they have the constitutional rights that we associate
with American citizenship. Also they have not in my opinion
violated Federal criminal law. They've violated the laws of
war.
I know that there were some who expected that the Obama
administration's review would end up recommending that all of
these cases go to Federal court, and I appreciate the fact that
you have not come to that conclusion, although I have some
questions about some of the subparts of what you've done. I
think this is really a very significant, very open-minded, very
fair, very ultimately historic process you went through and
reached I think generally speaking the right balance, and I
appreciate it.
You were asked just a moment ago whether you thought that
the military commission provisions of the NDAA were within the
Hamdan ruling of the Supreme Court. I want to ask you whether
your judgment is that the military commission provisions of the
NDAA are within the requirements of the Geneva Convention?
Mr. Johnson. Yes, Senator, with room to spare, yes. One of
my personal objectives, frankly, is that we devise a system
that comports with the Geneva Conventions as well as Hamdan, as
well as applicable U.S. laws. I think the answer to your
question is yes, sir.
Senator Lieberman. I thank you for that answer. I agree
with you, and I particularly appreciate the clause you added,
which is that the military commission provisions of the NDAA
are not only within the requirements of the Geneva Conventions,
but, as you said, with room to spare. I agree that we hold
ourselves to very high standards, sometimes standards that are
so high that they are unrealistic and in some sense self-
destructive in the context of the war we're in.
I agree with you that what we've provided for in this
legislation of this committee is well within the Geneva
Conventions.
Let me ask you a specific question that came up in the last
exchange and testimony of Mr. Kris. In light of the judgment of
the Supreme Court in the Hamdan case that certainly to me
suggested approval of the U.S. Court of Appeals for Armed
Forces (CAAF) as the place that the accused here can appeal
from a judgment of the military commission--and the CAAF is not
a standard Article III Federal court, as you well know. Why is
the administration seeking a right of appeal from the military
commissions to Article III Federal courts? Mr. Kris or Mr.
Johnson?
Mr. Johnson. Senator, let me take a stab at that initially
at least. First, we agree and endorse the position expressed in
the bill that it should be an expanded scope of review, review
of the facts as well as the law. Our view is that we should
retain the Court of Military Commission's review and then have
appeal directly to the DC Circuit. That would be in effect a
four-tiered level of review, beginning with the trial court,
and in our view would resemble in many respects UCMJ justice
because you have that intermediate level of appellate court,
rather than an appeal directly from the military commission's
trial level court to the CAAF. It would be our preference to
have an appeal directly to the DC Circuit.
But we agree with the concept of the expanded scope of
review.
Senator Lieberman. Is it fair to say, then, that the
administration's suggested changes in this regard are not
rooted in the Supreme Court's uniformity principles as stated
in Hamdan, but they're rooted in some other requirement or some
sense of the administration about what's fair and just here?
Mr. Johnson. I think that's a fair statement, Senator.
Senator Lieberman. Let me ask you just to comment, to go
back to what I said at the beginning and just describe in the
time that's left in my questioning period, why you reached the
judgment on behalf of the administration or why the President
ultimately reached the judgment that these cases that we're
talking about should not primarily go to our Federal courts?
Mr. Johnson. As you probably know, the President signed an
Executive order mandating a review of each detainee's
situation. That review is ongoing and, as you've seen in at
least one instance, a detainee who had a pending military
commissions case against him was transferred for prosecution in
the Southern District of New York.
I think it is fair to say that what the President and the
administration have concluded is at least some of these
detainees should be prosecuted for violations of the laws of
war, that military commissions justice is the more appropriate
forum, dependent upon a variety of factors. In some situations,
you have a situation where a detainee has violated both Title
18 and the laws of war, and we want to retain military
commissions as a viable and realistic option. Whether almost
everyone or everyone who is now a pending military commissions
defendant will stay that way, I couldn't say. The review is
ongoing.
Senator Lieberman. Thanks.
I want to just close the loop on the previous question,
because my time is up, which is that I think the committee has
made the right judgment in saying that the right of appeal from
the military commissions should be to the CAAF and that there
shouldn't be an appeal to the Circuit Court for the District.
Thank you.
Chairman Levin. Thank you, Senator Lieberman.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman. I'd like to, one,
compliment you and Senator McCain for trying to come up with a
new bill. I think it would help the country if we could reform
the process and I think we're very close to a bill that we all
can be proud of.
About the appeals, the main thing for the public to
understand is that any verdict rendered in a military
commission trial will work its way into the civilian courts. Is
that correct?
Mr. Johnson. Yes, sir.
Senator Graham. No one will be imprisoned in this country
based on a military commission verdict that does not have a
chance to have their day in Federal court, civilian court?
Mr. Johnson. Assuming they appeal, that's correct, yes,
sir.
Senator Graham. Okay. Now, when it comes to the idea of
location, the courtroom at Guantanamo Bay is uniquely set up, I
think, to do these trials. I would be interested to get your
thoughts about how the location would matter. I'm not so sure,
after the Supreme Court decisions treating Guantanamo Bay as an
extension of the United States, that it would matter greatly.
Like Senator McCain, I'd like to know how location would
matter.
Admiral MacDonald, one of the issues that we're grappling
with is the ``material support for terrorism.'' I think I
understand the administration's view that that is not a
traditional charge under the law of armed conflict. But under
the UCMJ, we incorporate the Assimilated Crimes Act (ACA).
Could that doctrine be used here?
Admiral MacDonald. Yes, sir. You could incorporate it in
under Title 18 through the ACA into the UCMJ and it could be
charged.
Senator Graham. I think, Mr. Johnson, that gets back to
your point. Some of these people can be charged under both sets
of laws. Is that what you were trying to tell us?
Mr. Johnson. Yes, sir.
Senator Graham. Now, Mr. Kris, do you agree with that
theory, that we could use the ACA to incorporate material
support using a Title 18 offense?
Mr. Kris. I think you could do that as a formal matter.
There still remains the question whether material support
historically was a law of war offense, under that label or a
different label.
Senator Graham. I totally agree with that debate. But if
you were able to incorporate Title 18 offenses, that would
resolve that issue, isn't that correct?
Mr. Kris. It would, again to the extent that it's a viable
law of war offense.
Senator Graham. All right, thank you.
Now, when it comes to evidentiary standards, are you
familiar with The Hague procedures when they try international
war criminals?
Mr. Kris. I am not.
Senator Graham. One thing I would suggest that you look at,
I think our hearsay rules are much more restrictive, quite
frankly. Do you agree with that, Admiral MacDonald?
Admiral MacDonald. Yes, sir, I do. We talked about this in
2006. We looked at the International Criminal Tribunal for
Rwanda and for Yugoslavia, and both of those tribunals have
very liberal hearsay rules.
Senator Graham. When it comes to involuntariness, what kind
of standard do they use in terms of admitting statements from
the accused?
Admiral MacDonald. It's the reliability of the statement.
Senator Graham. The point I'm making to the committee is
that if you compare our military commissions system,
particularly the reformed version, to an international court
trial at The Hague, we're much more, for lack of a better word,
liberal in terms of providing due process and protections to
the accused than you would get if you were going to The Hague.
I have no problem with that, quite frankly. I think that's a
good thing.
Let's get back to what the courts are likely to look at in
a military commission trial, Mr. Kris. I think the debate is a
bit confusing. It's not so much whether the individual accused
has a constitutional status as an American citizen, but the
courts will look at these trials in terms of due process and
they will make a judgment as to whether or not it meets some
minimum standard expected of an American court; is that
correct?
Mr. Kris. That is essentially exactly what I was saying to
the Senator.
Senator Graham. I think that is correct. When you look at
the history of military commissions, the World War II German
saboteurs trials is not exactly the showcase you would want to
use. Those trials were conducted in a matter of days from the
time the evidence was received to the time judgment was
rendered, and they passed scrutiny, but I think when we look
back in time it's not something we would want to repeat. Is
that your opinion?
Mr. Kris. I think I essentially agree with what you just
said, and I think Justice Scalia has referred to the Quirin
case as not the court's finest hour. I think there is some
question about whether you could apply those precedents
straight on, given recent developments in the law.
Senator Graham. Do you have a problem with the totality of
the circumstances test if we fill in the blanks in terms of
admission of statements?
Mr. Kris. No, on the contrary, I think the totality of the
circumstances test is the right test. Of course, the
administration's position is that it should be used to
determine voluntariness, albeit voluntariness that reflects the
realities of a wartime situation. But I do think totality of
the circumstances is what the judge would look at.
Senator Graham. The final thought here is about the
difference between an Article III trial and a military
commission trial. One of the big concerns that we have as a
Nation, Mr. Johnson, is what percentage of the Guantanamo Bay
detainees do you believe will be held off the battlefield but
never go to an Article III court or a military commission
trial?
Mr. Johnson. A percentage or a number is tough to say at
this point, Senator. As I mentioned a moment ago, our review of
these detainees is ongoing. I do think that we should all
assume that for purposes of national security and the
protection of the American people there will be at the end of
this review a category of people that we in the administration
believe must be retained for reasons of public safety and
national security. They're not necessarily people that we'll
prosecute.
Senator Graham. Either the evidence is not the type you
would take to a beyond a reasonable doubt trial or it has some
national security implications.
I'd just like to finish on this note. Admiral MacDonald,
under domestic criminal law is there any theory that would
justify an indefinite detention of a criminal suspect without a
trial?
Admiral MacDonald. In our own domestic law?
Senator Graham. Right.
Admiral MacDonald. Not that I know of, Senator.
Senator Graham. In the military setting, is it a
permissible behavior of a country to hold someone under the
theory that they're a belligerent enemy combatant indefinitely
if the evidence justifies that finding?
Admiral MacDonald. Yes, sir, it is. That's a recognized
principle of the law of war.
Senator Graham. Do you agree with that, Mr. Johnson?
Mr. Johnson. Yes. The Supreme Court held that in Hamdi in
2004.
Senator Graham. Do you agree with that, Mr. Kris?
Mr. Kris. Yes, I agree with Mr. Johnson, yes.
Senator Graham. To conclude, the only theory that would
allow this country to indefinitely detain someone without a
criminal trial would be the fact that we find them to be part
of the enemy force, they're still dangerous, and they're not
subject to being released; is that correct? The process that
would render that decision?
Mr. Kris. I'm not sure that dangerousness is actually even
part of the initial judgment under the----
Senator Graham. That's true, it's not required.
Mr. Kris. I think their status--and that's obviously being
litigated now in the habeas cases. I do think under Hamdi the
court said that at some point that authority to detain could
run out. But essentially I agree, I think, with what you're
saying, yes.
Senator Graham. Thank you.
Chairman Levin. Thank you, Senator Graham.
Senator Ben Nelson.
Senator Ben Nelson. Thank you, Mr. Chairman.
I think what you said in terms of geography is that
``geography matters'' in terms of Article 22 court-martial or
commissions, or geography may matter? In other words, where
these military commission hearings are held, if outside the
continental United States then perhaps a U.S. court would not
or, could I say, could not intervene to provide extra
protections under the Constitution? Mr. Kris?
Mr. Kris. The analysis really depends on a variety of
factors and it may be--I think it is the case that geography
would have some impact on it. But it is very difficult to be
precise and predict exactly what would happen.
Senator Ben Nelson. Would there be a difference between
Guantanamo and, let's say, Bagram Air Base, in terms of
geography and what the courts may do with an Article 2 hearing?
Mr. Kris. I want to be very careful. That is a matter that
is currently in litigation, so I think I want to just be very
careful to say that I think there could be some differences,
but probably not go much further than that.
Senator Ben Nelson. Mr. Johnson, what are your thoughts
about geography?
Mr. Johnson. Senator, much of this is unchartered territory
in the courts in terms of what rights, if any, would apply to
these detainees. I would say that it's our view that the
detainees--whether in the United States or anyplace else, do
not enjoy the full panoply of constitutional rights that an
American citizen in this country would enjoy.
Senator Ben Nelson. On a continuum, what I hear you saying
at the present time under the current law, their rights are at
this level, but it's not clear whether or not the courts could
rule that the rights increase in numbers or in depth?
Mr. Johnson. Let me try it this way. I think it is fair to
say that it is our view that some level of a voluntariness
requirement would be applied to statements that we would seek
to offer in a military commissions case, a military commissions
prosecution and that the ex post facto clause in the
Constitution would apply if, hypothetically, these cases were
prosecuted in the United States.
I would note, however, that in practice our military
commissions judges have engaged in an ex post facto analysis
anyway in assessing the prosecutability of certain of these
detainees at Guantanamo. Judge Allred specifically went through
an ex post facto analysis at Guantanamo. I'm advised that in
practice many of our military commissions judges have gone
through a voluntariness analysis in assessing the admissibility
of statements.
Senator Ben Nelson. Mr. Johnson, can you speak to the
progress of the Guantanamo review task force? I think there
were 779 people who were detained at Guantanamo. As I
understand it, 544 have been transferred, with 229 remaining.
Is that a fairly accurate number as far as you know?
Mr. Johnson. Those numbers sound accurate to me, Senator.
Senator Ben Nelson. Do we know the status of the remaining
detainees? I understand that there are those that could be
tried under either Article 2 or Article III courts, but do we
know how many have already been determined to be, let's say,
under Article III? Because as I understand it Article III means
that they would be coming to Federal courts for prosecution.
Mr. Johnson. At this point we have not completed our
review, so I don't have precise numbers for you. But I think it
is fair to assume that at the end of the review we will have
detainees in the five categories that the President outlined in
his May 21st speech. There will be some prosecuted in Article
III or we would seek to prosecute in Article III, some in
military commissions, and some in that fifth category, some
that are not prosecuted for various reasons, but for reasons of
the safety of the American people and national security we want
to continue to detain pursuant to the authority granted by this
Congress with the Authorization for Use of Military Force
(AUMF) and the Supreme Court holding.
Senator Ben Nelson. Do you have any idea when that review
may be completed?
Mr. Johnson. Before the end of the year.
Senator Ben Nelson. This year?
Mr. Johnson. Yes, sir.
Senator Ben Nelson. Okay.
Admiral MacDonald, in your written testimony you addressed
the proffered amendment to the MCA reported out by your
committee and indicated that for the most part it addressed all
of the matters that are and were of concern with regard to the
MCA. Beyond the two issues that you highlight in your
testimony, are there any other matters that ought to be
addressed?
Admiral MacDonald. No, sir. Those are the two that I was
referring to that we were unable to get back in 2006.
Senator Ben Nelson. I suppose in asking where the
administration proposes to hold the military tribunals, Article
2 cases--is it fair for me to ask what the administration's
view is of where to hold these, based on the fact that
geography may matter?
Mr. Johnson. We've certainly made no decisions about that.
Congress in the supplemental that was recently passed asserted
its rights and prerogatives to know what we have in mind in
this regard.
Senator Ben Nelson. I suppose that's why I'm asking.
Mr. Johnson. No decisions have been made and we continue to
consider various options.
Senator Ben Nelson. I assume there might be some advise and
consent in conjunction with that?
Mr. Johnson. I think in the supplemental language you've
pretty much mandated that.
Senator Ben Nelson. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you, Senator Nelson.
Senator Martinez.
Senator Martinez. Mr. Chairman, thank you very much.
Mr. Johnson, I'd like to ask, how will the Executive Branch
make a determination of who gets tried under Article III and
who may get tried in the MCA?
Mr. Johnson. Senator, that is something that Mr. Kris and I
have actually been working on as the representative of DOJ and
I as the representative of DOD. As Mr. Kris stated, the
President stated that where feasible we would seek to prosecute
detainees in Article III courts. We are working through an
expression of factors.
Senator Martinez. Do you have a preference for an Article
III court proceeding as opposed to a military commission
proceeding? Is that by your preference or is that by rights
that may be imbued upon the detainee?
Mr. Johnson. I would state it in terms of, where feasible,
we would prosecute people in Article III courts, but then you
have to go through a variety of factors. For example: the
identity of the victims; is there a law of war offense that
could be more effectively prosecuted versus a Title 18 offense;
identity of the place of capture, for example.
We're working through now a variety of factors for our
prosecution teams to consider in terms of what direction to go.
But I think the intent is to have a flexible set of factors,
because it is the case that many of these detainees, those that
are prosecutable, viewed to have violated both the laws of war
in Title 18.
Senator Martinez. Admiral MacDonald, I wanted to ask you
about the appeal process as envisioned, with the four-tiered
process. It seems to me that if a defendant were charged with a
Federal crime, a U.S. citizen was charged with a Federal crime
somewhere in Florida, that defendant essentially has a one-tier
appellate system, from a Federal district court to a circuit
court of appeal, with a very unlikely appeal to the Supreme
Court.
A defendant in an American court, a citizen of this
country, would not have as many appellate tiers as would one of
the detainees in this instance, is that correct?
Admiral MacDonald. Yes, sir. But remember, Senator, we're
talking about conforming the commissions to the UCMJ and to our
courts-martial process, and our court-martial process has--all
of the services have a court of criminal appeals as a first
tier of appellate rights. After that they appeal to the CAAF,
which is the first civilian court within our military justice
system to which they can appeal, and after that they have the
right of appeal to the Supreme Court.
I think what we're saying is that if you want to, to the
extent that you can, stay faithful to the UCMJ, that one way to
approach it on appeal would be to allow the Court of Military
Commission's review, either military judges that currently sit
on that court now or a combination of military and civilian
judges, that they would have factual and legal sufficiency
review powers, and then after that you could either go into the
Federal system, to the DC Circuit as it's constituted today, or
you could go to CAAF and mirror the UCMJ system. Either of
those paths would lead you ultimately to the Supreme Court.
Now, can CAAF do legal or factual sufficiency? Yes,
Senator, they can. They're very skilled jurists. If the bill
contains and continues to contain an appeal to the CAAF and
that body is given both factual and legal sufficiency review,
CAAF can do that. I think I would prefer the current system
because our military judges are used to doing factual and legal
sufficiency. But if you choose to go the CAAF route, the CAAF
judges are capable of doing it.
Senator Martinez. You made recommendations with regards to
how to handle classified evidence and also the standard for the
admission of coerced statements. Do you have any other
recommendations that you would make?
Admiral MacDonald. No, sir, those are the two. Senator
McCain mentioned that we have to get these commissions moving
and the practical aspects. That's really what my two
recommendations go to. We are finding--and this is through
discussions with the chief prosecutor--that they are having a
lot of difficulty in using Military Rule of Evidence (MRE)-505
to govern classified evidence.
The recommendation to you is a CIPA-like process, a CIPA
type of process. I would call it CIPA-plus, where we import the
good parts of MRE-505, which is to close a proceeding, a
military commission when classified, close it to the public
when classified evidence is being introduced; that we would
take that in, add it to the CIPA rules, where we have 20 years
of Federal practice that our judges can rely upon. My personal
opinion is that's probably a better approach to get these
commissions moving.
One of the complaints from the prosecutors is that the
judges are demanding that they do everything with written
submission, instead of what CIPA allows, which is an ex parte
hearing where you can go in before the judge, you can get the
issues resolved, and we can move on. That's why I recommended
that the committee take a look at CIPA-plus as a substitute
perhaps for the provision that talks about MRE-505.
On the voluntariness piece, I do disagree with the
administration on this. I think the committee has it right on
the reliability standard that exists in the bill. I think
fundamentally there is a difference between a voluntariness
standard that grew up in a law enforcement environment, that
that's different than the law of war context we find ourselves
in.
I am worried that a military judge that has a voluntariness
standard imposed upon them is going to look at a statement
taken at the point of a rifle when a soldier goes in, breaks
down the door, and takes a statement from a detainee--I'm
worried that they're going to apply a voluntariness standard to
that. I would argue that's an inherently coercive environment,
when you have a rifle pointed at you. I'm concerned a judge is
going to look at that under a strict voluntariness standard and
say that statement doesn't come in.
I would rather see this as part of a totality of the
circumstances leading to is the statement inherently reliable.
What I proposed is a series of factors that would give the
judge more guidance perhaps on how to do that analysis.
Senator Martinez. Thank you very much.
Chairman Levin. If you have actual language on your
factors, you might want to share it with us, not now but for
the record.
Admiral MacDonald. Yes, sir. Yes, Senator, I will.
[The information referred to follows:]
I propose the following language:
Senator McCain. But you're basically in agreement with the
legislation passed through the committee?
Admiral MacDonald. Yes, Senator, I am.
Senator McCain. Thank you.
Chairman Levin. Senator Udall.
Senator Udall. Good morning, gentlemen. Thank you, Mr.
Chairman. Senator McCain, Senator Graham, and I know Senator
Reed, have all worked very, very diligently on this important
set of questions.
I have to note, can you imagine a lot of other countries in
the world having this kind of discussion? It's a tough
discussion. It's been contentious. But here we sit, in the best
American tradition, deciding something as important as this.
I was a member of the Armed Services Committee in the House
for 4 years and I voted for legislation identical to the bill
being proposed by this committee in 2006 that I thought struck
a balance between military necessity and basic due process.
That bill didn't pass and I voted against the MCA that we're
discussing today. At the time, I thought that it risked tieing
up--that is, the bill we passed--the prosecution of terrorists
with new, untested legal norms that didn't meet the
requirements of the Hamdan decision. I thought it might
endanger our servicemembers by attempting to rewrite and limit
our compliance with Common Article III of the Geneva
Conventions. I thought it might undermine the basic standards
of U.S. law and it departed from a body of law well understood
by our troops.
Given that, I'm really glad we're here today looking at
this opportunity to revisit this important legislation.
Admiral MacDonald, if I might turn to you, I was a member
of the HASC almost 3 years ago when you testified about the
importance of reciprocity. I want to quote you. You said that
you would be concerned about other nations looking in on the
United States and making a determination that if it's good
enough for the United States it's good enough for us, and
perhaps doing a lot of damage and harm internationally if one
of our service women or service men were taken and held as a
detainee.
How do you think the military commission provisions in
Senate bill 1390 measure up in terms of reciprocity? Are these
provisions good enough for the United States in your view?
Admiral MacDonald. Yes, Senator, they are, and I would get
back to what Senator Levin said. The two major points here that
we have to be concerned about are the reciprocity issue and
creating a just and fair system. I think we need to be prepared
to take any unlawful or unprivileged enemy combatant to one of
these commissions.
If we believe that we have created a fair and just process
with this bill, we should not be shy about taking anyone before
these commissions for, I think, Senator, just that reason. I
would be very comfortable having a U.S. servicemember subjected
to these rules.
Senator Udall. Thank you for that answer.
Mr. Kris and Mr. Johnson, if I might turn to you on the
question of sunset provisions. Mr. Kris, you state that the DOJ
supports such a sunset provision. Could you talk a little bit
more along those lines? Then Mr. Johnson, I'd like to hear the
DOD's views on a sunset provision, if you would.
Mr. Kris. Yes, thank you, Senator. With respect to the
sunset, of course, I'm not representing DOJ alone, but all of
my testimony is representing the administration as a whole. Our
basic idea that underlies the sunset--and we haven't specified
any specific number of years--is as long as there's a
continuity provision to allow pending cases to continue past
the sunset, that it's a good idea for Congress to come back and
take another look at this after the passage of some time and
see whether there have been any developments that counsel some
changes or a fresh look. That's really I think what it boils
down to.
Senator Udall. Mr. Johnson?
Mr. Johnson. Senator, I would agree with what Mr. Kris
said, provided that it doesn't jeopardize ongoing prosecutions.
We think, in the administration, a sunset provision is a good
idea. We don't have a magic period of years. But given the
reality of changing circumstances on an international level and
lessons that could be learned from military commissions
prosecutions in the immediate years forward, we think a sunset
provision is a good idea.
Senator Udall. Thank you for those insights.
If I might, let me turn to a follow-up question on comments
that the chairman made in his opening statement on providing
the resources for the defense side of the efforts that we're
discussing today. The chief defense counsel issued a memo that
I thought raised some troubling issues and I'd be interested in
the views of each of the panelists on the current military
commissions system and whether the committee bill addresses the
needs of the defense efforts appropriately.
Maybe we can start with Admiral MacDonald and move back
across.
Admiral MacDonald. Sir, actually I agree with the concerns
expressed in the senior defense counsel's memorandum. These
have been longstanding concerns about resources, about access
to experts. I think it's something that needs to be addressed.
I don't see anything, to your point about is it in the
current bill, I don't see anything in terms of resourcing that
would get at that, that particular issue. But I do think that
the defense counsel needs more resources.
Senator Udall. Mr. Johnson?
Mr. Johnson. Senator, the legislation itself codifies a
rule change we made in May to permit the detainee more latitude
in selecting his defense counsel. But in terms of resources, at
present Colonel Maciola, who I consult with often, who is the
chief defense counsel, has 43 military lawyers assigned to him,
5 civilian, and I'm told he's authorized to go up to 52.
In response to your question about can we do better, one of
the things that I'm focused on, that I'm concerned about,
whether or not it's in this legislation is something that I
intend to push on, is making sure that our defense counsel are
adequately trained in capital cases. In the civilian world you
have the concept of ``learned counsel.'' There are American Bar
Association standards for what are learned counsel for capital
cases. I think we owe it to the system to make sure that our
defense counsel are adequately trained to handle capital cases.
Senator Udall. Mr. Kris, my time's expired, so if you could
be succinct, I'd like to hear your answer.
Mr. Kris. Fortunately, I can be. This is primarily a DOD
issue and so I'd just like to associate myself with the remarks
of my colleagues. One thing to point out is that the
committee's bill does follow our rule change in allowing a
choice of counsel. I think it doesn't define the pool from
which that choice would be made, and that would be something I
think we'd like to work with you on.
Senator Udall. Thanks again, gentlemen, for your
enlightening testimony. It will help us answer some important
questions. Thank you.
Chairman Levin. Thank you, Senator Udall.
Senator Reed.
Senator Reed. Thank you, Mr. Chairman. Thank you,
gentlemen.
I just want to clarify some issues that have been
previously touched upon. It's my understanding that in the
Boumediene case in 2008 that the Supreme Court recognized the
right of habeas corpus, that it's a constitutional right. Is
that correct, Mr. Kris?
Mr. Kris. Yes.
Senator Reed. So there is at least one constitutional right
that's been recognized in terms of enemy aliens and that is
habeas corpus; is that correct?
Mr. Kris. Yes.
Senator Reed. That's the only one?
Mr. Kris. So far, I believe that's the only right the
Supreme Court has said applies there.
Senator Reed. The issue that we've talked about with
respect to sort of the geography of these trials is that--and
it's just at this point to get your opinion--moving some of
this military commission to the United States might engender
other appeals that could trigger requests for additional
constitutional rights?
Mr. Kris. I think, regardless of where these cases are
held, there will be appeals, depending on which appellate
process is adopted, and there are a number of them under
consideration, including in the bill. What results from those
appeals I think, as Mr. Johnson and I have both said, is very
difficult to predict because there's been quite a lot of
development in the law over the last 50 years since commissions
were last used.
Obviously, there is some standard of due process that
applies to a military commission. Exactly what that standard
is, as I say, is sometimes difficult to discern. In light of
developments like the Boumediene decision, it can be I think
also increasingly difficult to be sure. I do think geography
may play a role in the rights or the procedures that are
required. But again, it's hard to know for sure.
Senator Reed. Let me also raise another issue. That is,
Admiral MacDonald pointed out that the law of war recognizes
the indefinite detention of combatants until the end of
hostilities. My impression is that Hamdan reserved that issue
and did not decide it. Is that accurate, Mr. Kris?
Mr. Kris. I think you may be referring to Hamdi.
Senator Reed. Hamdi?
Mr. Kris. Which is the decision in which the court
recognized the authority to detain under the law of war, and
the court left open, I think, the question whether that
authority would at some point run out. I think that's an
accurate statement.
Senator Reed. I would presume that the category of
individuals, that fifth category, those that have to be held
because of their potential, will have the right to habeas to,
periodically at least, raise the issue of whether they still
should be detained? Mr. Johnson?
Mr. Johnson. In fact almost all, if not all, of the
Guantanamo detainees are suing the government in habeas. The
President in his May 21 remarks stated with respect to that
fifth category that there would be some form of periodic
review, even subsequent to habeas proceeding, and that is
something that we're working on now.
Senator Reed. Thank you.
One of the other reasons to move quickly but thoughtfully
in this process of military commissions is that this is a way
in which to ensure due process prior to a court deciding one of
the habeas cases; is that accurate?
Mr. Johnson. That's a fair statement.
Senator Reed. That's a fair statement. I think it would
serve us well to move with dispatch, but thoughtfully, on this
legislation.
Mr. Johnson. Yes, sir.
Senator Reed. Admiral MacDonald, you commented about the
voluntariness standard and your concerns, legitimate concerns,
it might tend to, I won't say confuse, but it might tend to
complicate the decisionmaking of military judges. Ultimately
aren't we in a practical position trying to speculate about
what the Supreme Court will hold, because that's one reason why
we're here today doing this again?
Admiral MacDonald. Yes, sir. I would agree with everything
that's been stated this morning about how unsettled the law is
in this particular area. What I would propose is using
voluntariness, not as the only standard, but subsuming that as
one of a number of factors, others being the extent to which a
statement is corroborated, looking at the reliability of the
statement within the four corners of the document itself.
My opinion is that the Supreme Court or a Federal court
would recognize that there are fundamental differences between
a standard that grew up in a law enforcement paradigm versus
one that we're trying to understand in a law of war paradigm.
The reason I talk about this balancing test, this totality of
the circumstances and the number of factors, is I think that
will provide the judge with a kind of a guidepost. For example,
if you're evaluating a statement that was taken at the point of
capture, you might weigh voluntariness less, because it's a
more coercive environment, than you would corroboration and the
four corners of the document.
As you become more attenuated from the battlefield, for
example 6 months to a year after the detainee is removed from
the battlefield and is in a facility like Guantanamo, then
perhaps voluntariness in the judge's mind would be more
important. But we would leave that to the military judge to
determine on a case-by-case basis as he or she sees it.
Senator Reed. Thank you very much, Admiral.
If I may have one final question, please, of Mr. Johnson.
Is it your intention or have you decided to either try, give
everyone who's in Guantanamo some type of due process, either
military commission or a trial in Article III courts, or are
there some people that simply will not get any procedure at
all, that will be deemed to be an enemy combatant who will be
detained?
Mr. Johnson. Putting aside anyone who has been released or
may be transferred to a third country in the future, I think
it's accurate to say that the remaining population will either
be detained because we've been upheld in the habeas litigation
and they're subject to that periodic review I referred to a
moment ago, or those that violate the laws of war, that we feel
we can and should prosecute, we prosecute in a military
commission, and those that can be prosecuted for violations of
Title 18 will be referred to DOJ and Article III courts.
Senator Reed. Thank you, Mr. Johnson.
Chairman Levin. Thank you, Senator Reed.
Senator Hagan.
Senator Hagan. Thank you, Mr. Chairman, and thank you,
gentlemen.
Over the course of many years the former administration has
released a number of detainees from Guantanamo. Obviously, we
are hoping that many of the other countries will take some of
these detainees that are remaining. We need to be mindful of
the fact that the countries in the region, such as Yemen, are
currently incapable of mitigating the threat posed by the
returned Guantanamo Bay detainees. Whether the country lacks
the appropriate institutions or mechanisms of enforcement, such
as a counterterrorism law, or just the ability to prosecute
these detainees. Additionally, many countries in the region may
not be willing to accept them.
I think we need to work with the countries in the region
that have a proven track record in rehabilitating the
terrorists to accept detainees transferred from Guantanamo Bay.
According to the Office of the Secretary of Defense (OSD),
Saudi Arabia remains one of the most reliable counterterrorism
partners in accepting detainees that have transferred from
Guantanamo Bay. The Saudis have actually institutionalized a
rehabilitation program that was developed by the ministry of
interior to de-radicalize and rehabilitate the former detainees
for reintegration into the society in Saudi Arabia.
According to OSD, efforts are under way to convince Saudi
Arabia to accept some of the Yemeni detainees that have Saudi
tribal affiliations into the Kingdom's rehabilitation program.
My question for all of you is, how is DOD addressing the
problem that many countries in the region are just simply not
capable of mitigating the threat posed by the Guantanamo Bay
detainees and they lack the appropriate institutions and
mechanisms to prosecute them? Also, can you provide your
opinion on working with the countries in the region, such as
Saudi Arabia, to accept these Yemeni detainees that are
transferred from Guantanamo Bay that share the same tribal
affiliations?
Mr. Johnson. Senator, I agree with just about everything
you said. Many people do not understand that it's not as simple
as, oh, XYZ country is willing to take the detainee back, so we
can send them back. There needs to be in place an adequate
rehabilitation program where the circumstances warrant or the
ability to monitor in that accepting nation so that the
detainee doesn't simply return to the fight and that we
minimize to the fullest extent possible any acts of recidivism
for those who are transferred or released.
The safety of the American people is the utmost concern. We
believe strongly that rehabilitation programs like the one you
referred to are something that we should encourage, promote,
and it's something we're very, very focused on.
Senator Hagan. Mr. Kris?
Mr. Kris. I agree with everything that Mr. Johnson said. It
is absolutely essential that when we transfer these people to
foreign countries that we do so under conditions that ensure
safety. The rehabilitation program that the Saudis have is an
excellent program from what I understand.
Admiral MacDonald. Senator, I would agree with Mr. Johnson
on this. Particularly with our military members, we're
concerned about returning fighters to the battlefield. This is
a big issue for us. I think the way Mr. Johnson characterized
it is exactly right.
Senator Hagan. Thank you.
Also, I think that we need to be mindful that, although the
interrogation of detainees produces obviously valuable
information and sources of intelligence, we also know that they
can compromise the ability to prosecute detainees, obviously,
if the evidence obtained is through an interrogation method
that would involve torture.
Mr. Kris, can you just describe the process in which DOJ is
reviewing the evidence associated with each of the Guantanamo
Bay detainees to determine if they can in fact be prosecuted
and how DOJ is working with DOD in this regard?
Mr. Kris. Yes, I'd be happy to do that, Senator. Mr.
Johnson and I are working closely together on this. There is
obviously the review by the task force that was set up by the
Executive order, that makes judgments about whether cases are
potentially prosecutable. At that point they need to be
reviewed both by DOJ and DOD, working together to try to figure
out, are these cases really appropriate to indict either in an
Article III court or to bring before a military commission.
As Mr. Johnson and I have talked about, this is a fact-
intensive judgment. It requires a careful assessment of all of
the evidence, identity of the victims, location of the offense,
and a variety of other factors.
I would point out that these kinds of forum selection
choices are not unfamiliar to Federal prosecutors. They have to
make these kinds of choices in other cases as well, whether
it's between Federal and State or United States and foreign or
even UCMJ and Article III courts. So there has to be a process
by within the case is really carefully reviewed and worked up
by a joint team and then a judgment made about whether and
where it ought be prosecuted.
Senator Hagan. Thank you.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Hagan.
We're going to have a 2-minute second round with this
panel. I wish it could be a lot longer.
First to Admiral MacDonald. I didn't ask you this question
the first round, so let me ask you now. Do you believe that our
language conforms to the Hamdan standards?
Admiral MacDonald. Yes, sir, I do.
Chairman Levin. Second, Admiral, I think Mr. Johnson said
that the preference here would be to have more Article III
trials. We will I think hear some testimony that all the trials
should be Article III, that there shouldn't be any military
commissions. I'm wondering if you could tell us as kind of a
military man, but a JAG officer in the Navy, why military
commissions at all? What are those circumstances which make it
difficult, that I think Mr. Kris and Mr. Johnson are working
through, as to why would you want to try anyone under military
commissions or need to try anybody with military commissions?
Admiral MacDonald. Well, Senator, I think again it goes
back to the UCMJ and Federal law is designed for a different
model. It's designed for law enforcement. We're in a wartime
environment.
Chairman Levin. Give us some practical parts of that
environment which would lead you to conclude we ought to have
military commissions try people or that we need to have the
military commissions?
Admiral MacDonald. Again, Senator, it would go to that very
coercive environment. We're relying upon our soldiers to go
into a dangerous environment, where in many instances they have
to break down doors, and we're worried about their safety.
They're worried about it. We don't want them to have to stop
and think about giving Miranda rights or giving Article III1B
rights under the UCMJ. We don't want them thinking, in my
personal opinion, about whether or not the statements that they
are getting from someone in a house that they've just broken
into, whether that statement is purely voluntary or not.
I think that's recognized and the Supreme Court recognized
that in the Hamdan case, that there are these unique
circumstances that come up in a law of war environment that
just cannot be handled under two different systems that were
created for a completely different reason.
The other thing that I would say, sir--and this is to your
point in your opening about a fair and just process. I think we
need to be clear. As we go forward with these commissions, we
need to feel that these commissions can try anyone, anyone that
fits within the jurisdictional definition that you've put in
the bill, the personal jurisdiction section. We ought to feel
very comfortable taking anyone.
Now, I understand that the President prefers Article III
courts. But in my opinion, when we leave here today we ought to
be looking at this bill and saying to ourselves, it is fair and
just. To Senator Udall's question, we would feel very
comfortable having our own servicemembers tried under this kind
of a process.
I don't think we should kid ourselves. Any enemy combatant
should be able to be tried under this process.
Chairman Levin. Admiral, just quickly, relative to your
totality of the circumstances point as to whether or not a
statement obtained is coercive; in our bill, a statement that
is obtained through cruel, inhuman, and degrading treatment is
not admissible, period. What you are suggesting is that,
instead of adding a ``voluntary standard'' to that, that there
be something much more carefully defined so a judge can look at
the totality of the circumstances to take into account these
factors involving warfare and the use of force. Is that
accurate?
Admiral MacDonald. Yes, Senator. We pushed in 2006 to
eliminate the discrimination between statements taken before
December 30, 2005, the date of the Detainee Treatment Act, and
a standard imposed to statements after. Your bill eliminates
that distinction and so statements taken under torture are
eliminated. CID statements, they're eliminated. I'm talking
about some level of coercion below those two standards.
Chairman Levin. Torture is defined by the Geneva
Conventions.
Admiral MacDonald. Yes, sir.
Chairman Levin. There's one more thing I have to clear up
and it is this question of location. Our bill clearly is not
going to distinguish what procedures are dependent on the
location of the military commission. I mean, there's no way
that our statutory language can make that distinction.
I think that you were pressed, Mr. Johnson, and I think Mr.
Kris to some extent, to describe where it might make a
difference, I guess in terms of a judicial or court or a
judge's opinion as to depending on where the location is. I
don't see that at all. I must tell you, I don't see how the
location of a military commissions hearing can have an effect
at all. It won't have an effect nor can it in the way we write
the procedures.
Finally, however, on the other side of the coin, if you're
going to try people for Article III crimes, which is your
preference, there's no way practically those folks can be tried
in Guantanamo. You cannot have a jury empanelment that takes
months, with hundreds of citizens dragged down to Guantanamo to
live while a jury is being empaneled in an Article III criminal
case.
There are many reasons why we need to bring people, if
we're going to try them for crimes under Article III, which we
want to, to the United States as a practical matter. As far as
where a military commission is held, I don't see that there is
a difference. You've been asked for the record to give us any
thoughts on that, and of course that request I know you will
honor and give some thought to.
But I just don't offhand see that it could make any
difference as to the procedures as to where a military
commission is held. That's a statement. It's not a question.
I'm way over my time. If you want to react to that for the
record--Mr. Kris?
Mr. Kris. First, I agree with you that it's hard to imagine
an Article III prosecution occurring at Guantanamo. Second, in
talking about location, Jeh and I have been, I think, perhaps
cautious just because these are difficult issues, and we will
get you something for the record.
But third, I just want to make clear, despite the
difficulties, our best prediction is that voluntariness will be
required as a matter of due process here. It's a voluntariness
standard that is based on totality of the circumstances and
it's very similar, I think, to what Admiral MacDonald was
talking about. That is, you have to take account of the
realities of war. But I do want to make clear that we've come
to that conclusion.
Chairman Levin. That is the position of the administration.
We'll welcome language from both of you on that. But our bill
as it stands does incorporate the Geneva Conventions.
[The information referred to follows:]
[See responses to questions number 28 and 29.]
Chairman Levin. Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I think we'll find some common ground here about the
evidentiary standard as far as a statement goes. I think we
both view it the same. Admiral MacDonald, you described the
situation very well. When you're in detention outside the
battlefield, the analysis will be different than if you're in
the middle of a firefight. The judges should be able to
accommodate those circumstances. I don't think there's really a
whole lot of difference, Mr. Kris, between you and Admiral
MacDonald when you get there.
This location issue is very important because of the
politics of this, for lack of a better word. Mr. Johnson, is it
your view that closing Guantanamo Bay would be an overall
benefit to the war effort and starting over on detainee policy?
Mr. Johnson. It's my view, Senator, which is also the view
of the administration, but it's my view that closing Guantanamo
enhances national security.
Senator Graham. Maybe being the odd guy out as a
Republican, I believe that also, simply because Generals
Petraeus, Odierno, and every other combat commander has said
that being able to start over with detainee policy would take a
tool off the table used by our enemies, because Guantanamo Bay,
quite frankly, is the best-run military prison in history right
now. Do we all agree with that, the current state, Admiral?
Admiral MacDonald. Yes, sir, I do.
Senator Graham. Mr. Johnson?
Mr. Johnson. I've been there. The professionalism of the
Guards at Guantanamo is remarkable. I've visited civilian
clients in a few Federal Bureau of Prisons places and I agree
that the professionalism of our personnel there is really
remarkable.
Mr. Kris. I too have visited GTMO and I also was quite
impressed.
Senator Graham. To the Guard force families who may be
listening, what your loved one goes through every day at
Guantanamo Bay is a real sacrifice. That is a tough place to do
duty. Having said that, it is what it is, and starting over
with detainee policy I think could help the country.
Mr. Kris, you said one of the goals of a reformed
commission is to let the international community know that
there's a formal legitimacy to the commission that we haven't
been able to have otherwise; is that correct?
Mr. Kris. I do think it is important, and I take it to be
one of the main reasons that we're doing this work, that the
committee is doing this work, is to enhance the legitimacy.
Senator Graham. I totally agree. But the last thought is, I
just can't believe, quite frankly, given the Supreme Court
cases, that if you close Guantanamo Bay, move the detainees
within the United States and performed a military commission
trial like we did in World War II, that there'd be a
substantial difference. What I don't want to have taken away
from this hearing is that if we close Guantanamo Bay and move
the detainees within the United States that there will be
conferred upon them a plethora of legal rights they wouldn't
have otherwise.
Can you just address that?
Mr. Kris. It may be helpful if we say this. There are a
number of I think relatively modest differences between the
committee's bill and the administration's proposal. As you've
said, they're not vast and we do approve of and support the
bill.
The changes that we're recommending we think would be ample
to survive constitutional review even if the commissions were
held in the United States.
Senator Graham. Just the location alone is not going to
change the dynamic the court would apply in a dramatic way?
Mr. Kris. No. We think that what we're proposing will pass
muster comfortably in the United States.
Mr. Johnson. Senator, we're not suggesting--and I want to
emphasize that--that the full range of constitutional rights
would apply depending upon location. We have referred in this
hearing today to voluntariness. Mr. Kris is right, when you
look at the suggestion from the administration on a totality of
the circumstances voluntariness test it's really not that
different from what Admiral MacDonald has described.
Admiral MacDonald. Senator, I think as you have just
pointed out, this is really coming down to that, that
particular right, and the voluntariness test. I would align
myself with Mr. Kris, that blaming the sites of the military
commission in terms of additional constitutional rights should
not matter in this. I think we probably can reach some common
ground between what I would consider to be a balancing test
using voluntariness and what the administration's position is
right now.
Chairman Levin. Thank you, Senator Graham.
Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman.
Chairman Levin asked Admiral MacDonald a question, a
rhetorical question of why would you try any of these people in
a military commission setting, as our bill requires? I thought
your answer, Admiral MacDonald, was compelling and very
principled. To a certain extent, I suppose what I really want
to do is ask the question from a different perspective of Mr.
Johnson and Mr. Kris, which is: Why would anyone prefer to try
people apprehended for violations of the law of war in an
Article III Federal court? As you said, Mr. Johnson--I was
disappointed with your answer and it kind of pulled me back a
little bit from my feeling of appreciation toward the
administration for accepting the role for the military
commissions in handling these people.
I mean, the fact is that from the beginning of our country,
from the Revolutionary War, we've used military tribunals to
try war criminals or people we have apprehended, captured, for
violations of the law of war. Again, I think the unique
circumstances of this war on terrorism against the people who
attacked us on September 11 may have led us down, including the
Supreme Court, some roads that are not only to me ultimately
unjust, but inconsistent with the long history that we've had
here.
We talked before about how military commissions are not
only within the Hamdan decision, but certainly within the
Geneva Convention, which is the international standard for
fairness and justice in handling people captured during a war.
Why would you, in light of all that, say that the
administration prefers to bring these people before Article III
Federal courts instead of military commissions, which are
really today's version of the tribunals that we've used
throughout our history to deal in a just way with prisoners of
war?
Mr. Johnson. Senator, please don't misinterpret my remarks.
I applaud this committee's effort and this committee's
initiative to reform the MCA. I think that military commissions
should be a viable, ready alternative for national security
reasons for dealing with those who violate the laws of war, and
I'm glad we're having this discussion right now and I thank the
committee for undertaking this.
As we said, by and large we definitely support what you're
doing. The President has made that clear. I'm going to say this
on behalf of the administration, when you're dealing with
terrorists, who have a fundamental aim of killing innocent
civilians, it is the administration's view that when you direct
violence on innocent civilians, let's say in the continental
United States, that it may be appropriate that that person be
brought to justice in a civilian public forum in the
continental United States because the act of violence that was
committed against the civilians was a violation of Title 18 as
well as the law of war.
We believe strongly that both alternatives should exist.
Senator Lieberman. Well, I hear you. I respectfully
disagree insofar as the administration has stated today a
preference for trying these people in Article III courts. I
think, based on what you've just said, essentially the effect
of it is to give these war criminals, people we believe are war
criminals--that's why we captured them--the greater legal
protections of the Federal courts because they have chosen to
do something that has pretty much not been done before in our
history, which is to attack Americans, to kill people here in
America, as they did on September 11, civilians, innocents, it
doesn't matter, and to do it outside of uniform.
I think it puts us in a very odd position. We're giving
these terrorists greater protections in our Federal courts than
we've given war criminals at any other time throughout our
history, even though in my opinion they are at least as brutal
and inhumane, probably more brutal and inhumane, than any war
criminals we've apprehended over the course of the many wars
we've been involved in.
Yes, it may be also an act of murder to have killed people
who were in the Twin Towers on September 11, but it was an act
of war and the people who did that don't deserve the same
constitutional protections in our Federal courts as people who
may be accused of murder in New York City. I say New York City
because the attack was there.
I'm over my time. This is a very important discussion which
I look forward to continuing with respect, with you and others
in the administration.
Thank you.
Chairman Levin. Thank you, Senator.
Senator Martinez.
Senator Martinez. Thank you, sir.
To follow up on that, I think that it's fascinating for us
to discuss a person like Khalid Sheikh Mohammed, who didn't
wear a uniform and in fact inflicted great harm upon civilians,
not only here but in other parts of the world. He considers
himself to be a part of a movement, of a political movement,
that we would then consider a person like that to have a
preference for trying him as a criminal under Title 18 in an
Article III court and according him an additional set of legal
rights as opposed to in a military tribunal.
That begs another question. If we are doing Article III
trials, as the chairman was suggesting, we then also are
talking about closing Guantanamo by the end of the year.
There's no way for 220-some odd people to be processed through
some proceeding, whether Article III or military commissions,
in that timeframe. Where will they then be? I guess they'll be
here. What about those that are then acquitted? Where do they
go? What happens to them?
Would you mind touching on those issues?
Mr. Johnson. You're correct, you can't prosecute some
significant subset of 229 people before January. Those that we
think are prosecutable and should be detained we will continue
to detain, whether it's at Guantanamo or someplace else.
The question of what happens if there is an acquittal is an
interesting question. We talk about that often within the
administration. I think that as a matter of legal authority if
you have the authority under the laws of war to detain
someone--and the Hamdi decision said that in 2004--that is true
irrespective of what happens on the prosecution side.
Senator Martinez. Therefore the prosecution becomes a moot
point?
Mr. Johnson. No, no, I'm not saying that at all. I'm saying
you raised the issue of what happens if there is an acquittal.
Senator Martinez. Right.
Mr. Johnson. In my judgment, as a matter of legal
authority--you could get there--there might be policy judgments
one would make, but as a matter of legal authority, if a review
panel has determined this person is a security threat and
they've lost in their habeas and we've gone through our
periodic review and we've made the assessment the person is a
security threat and should not be released, if for some reason
he's not convicted for a lengthy prison sentence, then as a
matter of legal authority I think it's our view that we would
have the ability to detain that person.
Whether in fact that actually happens I think would depend
upon the circumstances and the facts of the particular case.
But as a matter of legal authority, I think we have law of war
authority, pursuant to the authority Congress granted us with
AUMF as the Supreme Court interpreted it, to hold that person,
provided they continue to be a security threat and we have the
authority in the first place.
Senator Martinez. Thank you.
My time is up, but I will just conclude with a comment,
that I truly believe that these are not criminals, that these
are people engaged in a very profound battle against this
country as part of a non-state actor for some of them, but they
nonetheless do not really belong treated as criminals, but as
people that are involved in something much deeper and greater
than that.
Chairman Levin. Thank you, Senator Martinez.
Senator Udall.
Senator Udall. Thank you, Mr. Chairman. I'll be brief.
I want to thank the three panelists for your excellent
testimony. I want to also acknowledge the fact that the
civilian judicial system is interfacing and working with the
military judicial system. I speak as a non-lawyer, I'm already
getting into deep water here. It seems to me that our judicial
system is a living, evolving, growing thing, if you will, and
we're working here to make sure that it's nurtured. Another way
to look at this perhaps is that you have two different kinds of
software systems that we're trying to integrate and understand
together. Again, I want to thank the civilian and the defense
establishments for working together.
Any time I have remaining, Mr. Chairman, I pre-yield it to
the great questions from the JAG officer who sits on this
Senate committee, Senator Graham, who I thought has been very,
very informative, very incisive with his questions and comments
today.
Senator Graham. Really, we do have two legal systems.
Habeas rights have been granted to Guantanamo Bay detainees.
While I don't agree with that, under the bill that Senator
Levin and I wrote, every detainee would wind up in Federal
court, the DC Circuit Court of Appeals. The Supreme Court ruled
that habeas rights apply to the detainees.
We need to look as a Nation about creating uniformity to
these habeas rights. Do we as a Nation want habeas petitions to
allow for lawsuits against our own troops? A medical
malpractice case was brought under the old habeas system. I
think, Senator Udall, we can streamline the habeas process.
There is a role for an independent judiciary.
I would just like to conclude with this. No one should be
detained in America for an indefinite period of time that
doesn't go to a civilian court or a military court without an
independent judicial review. I don't want people to believe
that folks are in jail because somebody like Dick Cheney or
fill in the blank with a politician said so. It doesn't bother
me at all that all of our cases will go to civilian judges and
the military and the Central Intelligence Agency has to prove
to a civilian court that these people are dangerous and they're
part of the enemy. Once that's been done, then I think it's
crazy just to arbitrarily say you have to let them go. If our
intelligence community, upon a periodic annual review believes
that they present a danger to this country, I think it would be
crazy to say you have to let them go, because you don't under
the law of armed conflict.
Just to end, Senator Udall, we need a hybrid system. We
need civilian judges involved in this war because it's a war
without end. As the President said last week, there will never
be a definable end to this war. An enemy combatant
determination can be a de facto life sentence. I don't want to
put people in a dark hole forever. I want them to have a way
forward based on their own conduct. Some of them will be able
to get out of jail because they've rehabilitated themselves and
some of them may in fact die in jail. But I want it to be a
process that's not arbitrary, that's not based on a politician
saying so, but a collaborative process with an independent
judiciary legitimizing our actions.
I think that's what this country has been lacking and
that's what we need to go forward. That's not being soft on
terrorism. That's applying American values to this war.
Chairman Levin. Thank you.
Senator Reed.
Senator Reed. Thank you.
This has been a very thoughtful discussion. There's been a
discussion about the value of trying everyone in a military
tribunal, military commission, or trying people in civilian
courts. I think, just for the record, that there is a value to
trying some of these individuals in civilian courts because
they are criminals, and because when they try to claim a mantle
of warrior, that is feeding into their appeal out in the
greater Islamic world, but in fact they're criminals. They have
committed premeditated murder. In that situation, if we can
mount a case effectively in court, we should not only do that,
but they should be not only convicted, but also identified as
criminals, not as soldiers, not as warriors, etcetera.
There are other cases where, captured on the battlefield or
because of practical considerations, a military tribunal will
work. I just wonder, Admiral MacDonald, as a uniformed officer
do you have a reaction to that?
Admiral MacDonald. Senator, I guess my only point would be
this, I think we need at the end of the day to have full faith
and confidence that what we're creating in this bill is a fair
and just process. I am sensitive, too, that there may be
situations where going to an Article III court, going to
Federal court, may be the right decision, given the facts and
circumstances that exist in a case.
I think it's absolutely vital that when we leave here at
the end of the day it's not because we believe that what we've
created is a second class legal system. We need to look at
this, that this can stand alone in the world and we are willing
to be judged by what we're putting together today. That's my
only point, is that you ought to feel very comfortable sending
anybody to these commissions process with these changes because
we believe it's a fair and just system.
Senator Reed. The ultimate test would be if an American
service man or service woman were subject to these procedures
we would consider them to be appropriate.
Admiral MacDonald. Yes, Senator.
Senator Reed. Thank you.
Chairman Levin. Thank you.
I will just conclude by saying what our bill does not
address, does not purport to decide or address. One, we do not
decide whether a person, who's going to be tried, is tried by
an Article III court or a military commission. We've been told
there's going to be some of each for various reasons. We do not
make that decision in this bill at all, don't try to, don't
purport to.
Second, we do not address the question of where a trial
takes place. That is not addressed in this bill.
Third, what we do is address the procedures that would
apply where there are military commission trials. It's pretty
obvious to me as chairman that those procedures will apply
regardless of where the military commission is held. There
can't be any difference in the way we write a bill on that. I
disagree with the suggestion that somehow or other it will make
a difference in terms of a court ruling, Supreme Court or
otherwise, as to whether or not a military commission
proceeding is held in the United States or in Guantanamo. I
just, as a lawyer, cannot imagine the Supreme Court or any
other court saying, well, this commission was held in one
place, therefore one rule, constitutional rule, applies; if it
were held in another place, a different constitutional rule
applies.
Given what the court has decided in Boumediene and what the
court has decided in Hamdan, I just can't imagine there would
be any difference in that decision, whether trial court or
Supreme Court, as to where this military commission proceeding
took place.
Finally, on the voluntariness issue, hopefully we can come
up with some common language on that. But in any event, we have
language in the bill which incorporates the requirements of the
Geneva Conventions in terms of coercion, in terms of whether or
not a statement can be used against a defendant.
Thank you all very much for your wonderful testimony here.
Your very carefully thought out testimony will be made part of
the record. We'll have some additional questions for the
record, and we'll now move to our second panel. [Pause.]
On the second panel we have three distinguished experts on
military commissions from outside of the government. You're our
outside panel.
First, Rear Admiral John Hutson capped a distinguished 27-
year career as a Navy lawyer, serving as the Judge Advocate
General of the Navy from 1997 to 2000. He is currently Dean and
President of the Franklin Pierce Law Center.
Second, retired Major General John Altenburg completed a
28-year career as an Army lawyer, serving as Assistant Judge
Advocate General of the Army from 1997 to 2001, and as the
first Appointing Authority for Military Commissions from 2003
to 2006.
Finally, Daniel Marcus served as General Counsel of the 9/
11 Commission, after spending a number of years in the White
House Counsel's Office and DOJ. He now teaches national
security law and constitutional law at the Washington College
of Law at American University.
Gentlemen, we thank you. We didn't give you much notice
about this hearing. It's a very important hearing and we
greatly appreciate your attendance and the work that you put in
all your lives for this Nation.
Admiral Hutson, we'll start with you.
STATEMENT OF RADM JOHN D. HUTSON, USN (RET.), FORMER JUDGE
ADVOCATE GENERAL OF THE NAVY
Admiral Hutson. Thank you, Mr. Chairman. I very much
appreciate this opportunity. The honor and privilege is not
lost on me.
I'll be brief. We don't ask DOJ to fight our wars and I
think we shouldn't ask DOD to prosecute our terrorists. I
respectfully disagree with Senator Martinez. I think that they
are criminals and they ought to be treated as such, and to
somehow elevate them to the status of, say, Major Andre I think
is inappropriate.
I have two concerns particularly. One is that right now the
U.S. military is, if not the most highly respected institution
in the United States, it's certainly among the very top. There
are a couple of reasons for this. One is that the military
carefully restricts itself to its primary mission, which is to
fight and win our wars, to provide the time and the space
necessary for the real solutions, social, cultural, religious
and otherwise, to take place. Then, once that mission is
limited to warfighting, the military does that very, very well,
just as DOJ prosecutes criminals very, very well.
The other aspect for me is that DOJ has scores of
experienced prosecutors, decades of precedent and experience,
lots of judges, and great credibility, justifiable credibility
in this area, that DOD simply doesn't have. DOD personnel
policy is to rotate people every 2, 3, or 4 years. They will
never ever get the experience that Federal prosecutors have or
that Federal judges have.
I think we're missing an opportunity to display the
greatest judicial system on the face of the Earth, to shout it
from the rooftops. Rather than doing that, we're sort of hiding
it under a bushel and bringing out the uniformed service
persons. I admire and am proud of the job that they do, but
it's simply not the primary responsibility of DOD or the U.S.
military or the Armed Forces to perform that function, and I'd
rather see it where it should be, in the very capable hands of
DOJ.
Thank you, sir.
[The prepared statement of Admiral Hutson follows:]
Prepared Statement by RADM John D. Hutson, USN (Ret.)
I am the Dean and President of the Franklin Pierce Law Center. I
served as a Judge Advocate in the United States Navy from 1973-2000 and
as the Judge Advocate General of the Navy from 1997-2000. I am very
aware of the honor and privilege of testifying before this committee on
the matter of military commissions. I thank the committee for this
opportunity.
Even greater than democracy itself, the greatest export of all from
the United States is justice. Daniel Webster once said, ``Justice, sir,
is the greatest interest of man on Earth. It's the ligament which holds
civilized beings and civilized nations together.'' But Justice is
fragile and easily disparaged. It must be nurtured and handled with
great care.
I was an early and ardent supporter of military commissions.
Initially, I was drawn to their historical precedents and, more
importantly, I was confident that the United States Armed Forces could
and would conduct fair trials even of reprehensible defendants. My own
experience gained during 28 years in the Navy and our long history of
providing due process while trying our own military personnel in
courts-martial gave me this confidence.
Unfortunately, as it turned out, the commissions that were created
did not live up to the traditions of the Uniform Code of Military
Justice (UCMJ). Predictably, they became a significant distraction for
the military. I hasten to add that this was in spite of the stalwart,
honorable effort of many, many military personnel themselves. Indeed,
that is one of the great tragedies of this saga, and largely makes one
of the points that I wish to underline.
The primary role of the military is to fight and win our Nation's
wars or, stated more precisely, to provide the time and space necessary
for real solutions--economic, cultural, social, religious--to take
place. Prosecution of miscreants is an occasionally necessary sidebar
to that mission but shouldn't distract from it. We have the UCMJ and
the military court-martial system to expedite the legitimate role of
the military, not interfere with it.
If a sailor on a ship is alleged to have committed a crime, we must
expeditiously and fairly resolve that problem. Otherwise, it can fester
and interfere with unit cohesion and impede an effective fighting
force. The UCMJ and the Manual for Courts Martial serve that purpose
alone. They solve problems for the armed forces; not create them. Our
recent history with military commissions has been the opposite. I've
come to realize that even a perfect commission regime would be a
distraction for the military. It's simply not part of its mission. I am
very concerned when the military is called upon to perform functions
outside of its core mission even when I'm confident that it can do it
well. Preserving and ensuring justice in the United States is the
primary mission of the Department of Justice (DOJ), not the Department
of Defense (DOD).
If there will be criticism of our prosecution of alleged
terrorists--and there will be--DOJ and the U.S. Federal Court system
are equipped to deal with that criticism. Indeed, it is part of their
responsibility to face it, address it, and resolve it.
Notably, the criticism will come not only from critics outside the
judicial process such as the media, foreign allies and enemies, and
domestic commentators but also from the legitimate appeal process. Some
of the criticism may actually be justified or, at least, defensible.
There is no reason in law or logic for the military to be the target of
that. Convictions from military commissions will be appealed until
Dooms Day just because of the forum of the conviction. Federal courts
are impervious to that.
It is decidedly not the responsibility of DOD or the U.S. military
to deal with criticism of such prosecutions. It would, in fact, be
detrimental to the military mission. There are valid and important
reasons why our military is the most highly respected institution in
America. One of them certainly is that the military limits itself to
its mission and performs that mission very well. Taking on duties
outside of that core mission on an ongoing basis will surely undermine
the public's confidence in the military . . . and divert important
resources, human and otherwise, from that mission in order to take on
the new one.
We already have proof of this. Besides being a distraction to the
vital mission of DOD, military commissions have, to a large extent,
become a discredit in spite of the valiant and highly credible efforts
of many, many people in uniform. Rather than showcasing the military
justice system of which we all are justifiably proud, commissions
represent something else entirely. They have not worked often or well.
``Fixing'' them would help, but won't eliminate undeserved but
inevitable criticism.
On the other hand, during the same period, U.S. District Courts
have successfully prosecuted literally hundreds of terrorists who now
reside in Federal prisons around the country, keeping all Americans
safer. Federal courts, including judges, prosecutors, marshals, and
other court personnel have decades of experience in these cases. They
have developed a justifiable and universally held reputation for
fairness, and consequently, they are largely immune to criticism.
There is also now a large body of law that has been developed over
the years in the Federal court system. It would take an equal number of
cases and decades of trials for DOD to match the Federal precedent
contained in the Federal Reporters.
Military judges, prosecutors, and defense counsel rotate out of one
assignment into another every 3 years or so. Without significant
changes to longstanding DOD personnel policy, none of them will ever,
ever gain the experience in these cases that is enjoyed by scores of
their civilian Federal counterparts. We could do that, we could change
longstanding DOD personnel policy but again, if we did we would have
the tail of terrorist prosecutions wagging the warfighting dog.
It is not only unnecessary, it is inappropriate for DOD to operate
a system of justice in parallel to DOJ. The UCMJ and the courts-martial
it creates are absolutely necessary to ensure our effective fighting
force. But for some of the same reasons that the Posse Comitatus Act
prevents the military from enforcing laws against U.S. civilians, we
should resist the temptation of using the military to prosecute foreign
criminals when DOJ can perform that critical function quite well.
Let us not forget, these are not legitimate warfighters. They are
common criminals. They are thugs, cowards who target innocent
civilians. We should treat them as such and not elevate their status to
that of legitimate enemies. They don't belong in the same category as
Major Andre or the German saboteurs.
We don't ask DOJ to fight wars. We shouldn't ask DOD to prosecute
terrorists.
If the point of this exercise is to create a court system that will
ensure convictions of alleged terrorists against whom we don't have
sufficient admissible evidence, then we have missed the point. You
can't have a legitimate court unless you are willing to risk an
acquittal. If you aren't willing to accept the possibility that a jury
will acquit the accused based on the evidence fairly presented, then it
isn't really a court. It's a charade.
The corollary to that is that you can't have a real court if the
rules of evidence and procedure are so stacked against the defendant
that he has no real chance to present his case or defend against the
government's case. The admissible evidence against him based on the
facts may be so overwhelming that conviction is assured but that must
be the consequence of facts, not rules of evidence tilted in favor of
the prosecution.
Over the years, Federal courts have displayed remarkable ingenuity,
flexibility, and resourcefulness in prosecuting terrorists. The Federal
Rules of Evidence and Procedure are sufficiently adaptable to
accommodate the vagaries of trying those individuals who are captured
overseas by military personnel in the midst of performing military
operations. I believe the image of the ``strategic corporal'' having to
give Miranda warnings after risking his life to break into the bunker
is a red herring.
If you as members of this committee believe or suspect that the
Federal Rule of Evidence or the Federal Rules of Criminal Procedure
should be amended to accommodate certain cases and situations, it is
preferable to superimpose modest new rules on an extant, tried and true
judicial system than to create a whole new system--particularly in
light of recent efforts.
It might be wise to set up a task force of experienced judges,
prosecutors, and defense counsel to make recommendations to Congress in
this regard.
However, if we create yet another military commission system that
``contains all the judicial guarantees considered to be indispensible
by all civilized peoples'' as required by Common Article III of the
Geneva Conventions, then we have essentially duplicated our own Federal
courts. There is no logical reason to create a system that mirrors one
already in existence and is functioning so well. We should strive for
the minimum change necessary to accomplish the purpose, not a wholesale
change to an already effectively functioning system.
Clearly and undeniably, the administration and this committee are
dedicated to untying this Gordian knot in a way that serves the very
best interest of the country. We are now operating under the Military
Commission Act of 2006 which many find to be badly flawed. I very much
respect and admire your effort to improve it. My recommendation,
however, is to repeal it rather than improve it. In the process, I urge
you to express this body's preference to prosecute alleged terrorists
in Federal court and thereby demonstrate to the world, friend and foe
alike, what kind of Justice the United States wishes to export.
Chairman Levin. Thank you, Admiral, very much.
General Altenburg.
STATEMENT OF MG JOHN D. ALTENBURG, JR., USA (RET.), FORMER
APPOINTING AUTHORITY FOR MILITARY COMMISSIONS
General Altenburg. Thank you, Chairman Levin and members of
the committee.
Military commissions are an appropriate, long validated,
constitutional mechanism for law of war violations. Military
commissions have always adapted to both the operational needs
of the particular conflict and to the then-existing state of
criminal law.
This proposed statute tracks the current state of criminal
law in its most important respects and codifies or incorporates
advanced thinking in criminal law since the 1940s use of
commissions by the United States. This is true, especially in
areas such as hearsay and self-incrimination, including the
reliability concern that the Supreme Court has emphasized in
the last 50 years.
Our military in the 21st century fights in a more complex
manner. This means that Congress must forthrightly acknowledge
how this complexity impacts military commissions. This includes
evidence gathered by intelligence personnel, not just
conventional forces, operations and places and under
circumstances that would not serve our security, diplomatic
posture, or stability of other nations to be made public. In
addition, confronting an enemy of uncommon ruthlessness and
ability to reach anywhere, at any time, making personal
security of participants in the investigative and trial process
an especially sensitive and appropriate consideration.
I applaud the efforts of the committee in proposing this
amendment to the MCA. I think that there are several reasons
why these people should be prosecuted at military commissions,
among them the fact that we're prosecuting them for war crimes
and not violations of Title 18. They may have also committed
violations of Title 18, but we're prosecuting them for war
crimes.
It is a part of the Commander in Chief's authority to
prosecute war criminals during a war and just after a war. It
serves as a deterrent to others. Sometimes we use the word
``UCMJ'' and we act like it's just court-martial and that
military commissions are different. The UCMJ includes four
tribunals. Court-martials are the one we're most familiar with
and therefore oftentimes we shorthand and say ``UCMJ'' when we
mean courts-martial.
But military commissions have been around for a couple
hundred years and courts of inquiry for well over 100 years,
and the provoso courts are the least used. I think that's an
important distinction that we should all keep in mind.
I would ask the same question that a couple of Senators
have asked in response to my colleagues' comments, and that is,
why would we apply domestic criminal law due process for alien
unlawful belligerents who've abandoned all civility and respect
for international law?
Just two things that I'd like to comment on that I think
need to be addressed. One is, that I believe, because the
Service courts have the experience of the factfinding role, the
experience and the expertise honed over years and years, that a
more appropriate place for the intermediate appeal would be the
existing Court of Military Commissions Review and not the CAAF.
The CAAF I'm sure, as an earlier speaker mentioned, certainly
has the expertise to do the factfinding role. I just think it's
better placed with the military appellate judges because of
their experience in that regard. I think it would be somewhat
onerous to place that on the CAAF. Their experience is with
criminal law for the most part. Military criminal law is very
similar to domestic criminal law, and we're now into an area of
law of war, something that's fairly arcane, in dealing with
these types of crimes.
The other thing that I think needs to be addressed is the
issue of the death penalty. It's somewhat ambiguous in the MCA,
and I'll just kind of state the scenario. If a detainee wants
to plead guilty to a capital offense, he can do that. But the
way the MCA is written, it says that he has to be found guilty
by a jury, guilty by commissions. There's a way to wordsmith
that to make sure that it's very clear and that we don't spend
hours and days litigating at the military commissions
proceedings whether he really can do that and exactly what that
means. I'd be happy to submit that in additional comments or in
response to questions as to what proposed language it would be.
It would just make it very clear, because I know that
prosecutors and defense lawyers and judges are trying to
grapple with that, because some people want to plead guilty to
a capital offense. Of course, they want to be a martyr for
their cause and that's another discussion. I think that it
should be possible for them to plead guilty to a capital
offense and then be sentenced by the court.
Thank you, sir.
[The prepared statement of General Altenberg follows:]
Prepared Statement by MG John D. Altenburg, Jr., USA (Ret.)
Chairman Levin, Ranking Member McCain, other distinguished members
of the Committee, thank you for this opportunity to discuss Military
Commissions, the Military Commissions Act, and proposed amendments to
the Military Commissions Act, 2006. Military Commissions are an
appropriate, long-validated, Constitutional mechanism for Law of War
violations. U.S. Military Commissions have always adapted to both the
operational needs of the particular conflict, and to the then existing
state of criminal law.
This proposed amendment tracks the current state of criminal law in
its most important respects, and codifies or incorporates advanced
thinking in domestic and international law since President Roosevelt's
World War II military commissions, endorsed by the Supreme Court in
United States v. Quirin. These advances are most notable in areas such
as hearsay and self-incrimination, including the reliability concerns
that the Supreme Court has emphasized since the Military Commissions of
the 1940s.
As our Nation fights in a more complex manner, Congress must in the
21st century give Military Commissions the tools to adapt to 21st
century opponents. This means that Congress must forthrightly
acknowledge how this complexity affects our Nation's ability to bring
war criminals to justice--including through the long validated process
of military commissions. Concrete areas that require careful
integration of the truth-seeking function of a system of justice with
the realities of warfighting include evidence gathered by combat and
intelligence personnel and Special Operations Forces; operations in
places and under circumstances that would not serve our security,
diplomatic posture, or the stability of other nations if made public;
and confronting an enemy of uncommon ruthlessness with the ability to
reach anywhere at any time, making personal security of participants in
the investigative and trial process an especially sensitive and
appropriate consideration.
Military commissions historically have been a singular forum,
repeatedly recognized by statute, international law, and Supreme Court
decisions as an incident of war, not arising from the judicial power of
the United States, but firmly within the power and authority of a
military commander as authorized by Congress. This distinction is
anything but academic; it is the seminal point from which flowed post-
2001 misunderstandings of military commissions.
Historical validity aside, the necessity of military commissions in
the current conflict has been occluded by: (1) the decades during which
they were not deemed by a military commander to have been necessary for
a particular conflict or set of circumstances (we did not use
commissions during the Korean or Vietnam conflicts); and (2) the
unprecedented evolution in criminal procedure and evidence seen during
those decades, which complicated the setting in a way that policy
makers failed to recognize in drafting the President's Military Order
of November 13, 2001.
The proposed amendment to the Military Commission Act may
successfully culminate a process that began in October 2004 in the
Office of Military Commissions. Several government lawyers, military
and former military, worked diligently to create a proposed Uniform
Code of Military Justice amendment (Article 135a) and a proposed Manual
for Military Commissions. The product of nearly an entire year's work
by Brigadier General Tom Hemingway, Michael Chapman, Kevin Carter,
Ronald White, Colonel Lee Deneke, Colonel Wendy Kelly, Colonel Patricia
Wildermuth, and Mary Alice Kovac was presented for approval by
appropriate authority in August 2005. If approved and implemented, many
believe it would have made more likely a Supreme Court decision
favorable to the government in the Hamdan case. The proposed Article
135a and Manual for Military Commissions were not favorably considered.
The Supreme Court's decision in Hamdan led directly to the Military
Commissions Act. The proposed amendment will finally produce Military
Commissions procedures that meet all Law of Armed Conflict standards
and exceed International Law standards for war crimes trials.
Unprivileged belligerent is a better term, in my opinion, than
enemy combatant. The proposed definition, in section 948a(7)(a) now
also includes those who engage in hostilities against our coalition
partners. This as well is a positive change.
Section 948c says that ``any unprivileged enemy belligerent having
engaged in hostilities or having supported hostilities against the
United States is subject to Military Commissions.'' This language seems
somewhat inconsistent with 948a(7) language that defines unprivileged
enemy belligerent as one who ``purposefully and material supports
hostilities.'' More important, 948a(7)(b) defines unprivileged enemy
belligerents as those who ``purposefully and materially support
hostilities,'' which is more expansive and useful and appropriate
language, in my view.
I consider the language authorizing a military commission to
determine its own jurisdiction to be an improvement as well.
Regarding self incrimination, the focus on ``reliability'' is
welcome, but it cannot be the sole touchstone without at least some
clarification. Such statements are routinely admitted into evidence in
both Federal district court and courts-martial. Therefore Congress may
want to consider modifying the proposed language so that either side
can introduce statements for reasons other than their truth. I
recommend language that considers the totality of the circumstances in
determining whether the statement is reliable for the purpose for which
it is offered.
The hearsay provisions of the proposed legislation are a
substantial improvement, as they balance the truth-seeking function of
the right to confront evidence against an accused with the realities of
the modern battlefield and especially the protracted nature of the
post-September 11 conflicts. There remain some potential refinements in
this area. The amendment seems to assume that all statements are taken
by government agents, which is frequently true, but not always the
case. Sometimes ``rank hearsay,'' including statements from one
detainee to or about another may be offered; the defense likely
requires more flexibility in this regard than does the government.
Most important, the rule should state clearly the threshold
requirement that the military judge determine, under the totality of
the circumstances, that a statement is reliable for the purpose for
which it is offered. The proposed bill is not explicit regarding this
factor. The proposed amendment says also that the necessary predicate
is witness unavailability. This may lead to extensive litigation
regarding what constitutes unavailability. There may be times when
justice is served if it's a material fact (an appropriate requirement)
and in the interests of justice. Where reliability is a required
consideration, then the judge has more than adequate guidance for
making fair and appropriate determinations of admissibility.
The section 949j discovery language is more broad than that
governing Article III courts. The disclosure obligation for witness
statements is ``as soon as practicable'' compared to the traditional
(Federal) practice of disclosing when the witness testifies. It's not
clear why we would want military commissions to deviate from the
Federal standard, which is frequently espoused by military commission
critics. I propose language along the lines of requiring disclosure a
``reasonable time before the witness testifies''. This proposed
language is closer to the court-martial norm without unduly burdening
the prosecution's discovery responsibility.
More significant is determining what is government evidence and how
accountable the prosecutors must be when as a practical matter they
don't know the universe of available evidence, and not all organs of
government share the prosecutors' interest in trying the cases. The
prosecution arm of the government is, no doubt, comfortable with
bearing some of the burden here--but other government agencies may need
statutory inducement to produce evidence in a timely manner. Still,
section (b)(4), says, ``the disclosure obligations under this
subsection encompass evidence that is known or reasonably should be
known to any government officials who participated in the investigation
and prosecution of the case. . .''
I recommend replacing ``and'' after ``investigation'' and before
``prosecution'' with ``or''--to be clear that prosecutors must examine
only that which they possess or are able to access. In short,
prosecutors must have access to the evidence before they can be held
accountable for its examination and production. This reflects the
unique context of combat operations evidence collection, which is not
accomplished by police investigators and crime scene experts who pass
it to forensic experts through elaborate, precise custody systems.
Rather, it is most frequently collected by riflemen or intelligence
operatives whose priorities are safeguarding themselves and others
while collecting information that may assist their fight against an
enemy determined to kill them and others. The potential for its
subsequent use as evidence in a criminal trial is not the paramount
basis for its collection at the time. This goes to the heart of why
alleged war crimes should be tried by military commissions that meet or
exceed all Law of Armed Conflict and other International Law standards.
The burden must be on the government, but the legislation must be
realistic in its burden, recognizing that multiple organs of the
government collect, analyze, and store evidence, often for other than
law enforcement purposes.
Regarding supervision of counsel, it may be appropriate, based on
experience since 2006, to add to Section 949b(a)(2)(C) the following
language: ``This does not preclude the exercise of appropriate
supervisory authority over trial or defense counsel.''
Section 949j (pg. 32): codifies what has been the practice in that
the Military Judge can authorize the Trial Counsel to provide redacted
or unclassified summaries of documents to the defense.
The current statute says that Geneva Conventions are not a ``source
of rights'' that detainees may invoke, but the new bill says that the
Geneva Conventions may not be invoked as a basis for a ``private cause
of action.'' The intent seems to be that an accused may not base a
civil claim on a Geneva violation, but still permit him to base trial
motions on asserted Geneva violations. This may be an untenable
threading of the needle because it may well expose the government to
liability in areas other than Military Commissions. When in other
realms individuals, including non-citizens, claim that Geneva or other
treaties, traditionally considered not to be self-executing, form a
basis for trial-level relief or in any way are considered to grant
personal rights rather than binding the government of the United
States.
The proposed amendment retains the apparent contradiction of the
Military Commissions Act that allows one to plead guilty to a capital
offense but prohibits sentencing to death unless the accused is found
guilty by the 12 member commission. I propose the following language be
inserted in the proposed amendment: ``In order to be sentenced to death
the accused must have been found guilty by commission of members or
have plead guilty and been found guilty by a military judge.'' This
language should eliminate the confusion inherent in the Military
Commissions Act. More important, the proposed amendment does not retain
the Military Commissions Act language that the death penalty is
available if the offense carries that punishment under ``this chapter''
or Law of War. Furthermore, the amendments should provide a mechanism
for an accused to plead guilty and choose to be sentenced by the
Military Judge alone, as is the standard in court-martial practice.
I recommend that the appellate process delineated in the 2006
Military Commissions Act be retained in the proposed legislation rather
than naming the Court of Appeals for the Armed Forces as the
intermediate appellate court. The Court of Military Commissions Review
has functioned well since its establishment in the Military Commissions
Act. The judges who populate this court from the Service Courts of
Criminal Appeals have extensive experience in the factfinding role. The
service appellate courts are unique in United States jurisprudence
because of their factfinding authority. If we are to include the same
factfinding power we provide for soldiers at the intermediate appellate
court then we should ensure that the intermediate court is one with the
expertise and experience to exercise that function.
The proposed amendment says to assign defense counsel ``as soon as
practicable''. This is conventionally assumed to be at charging by the
Prosecution, consistent with military and most public defender
practices. But there needs to be some flexibility by which Chief
Defense Counsel can appoint defense counsel earlier--so that, in
appropriate cases there can be charging negotiations that are
beneficial to both the defense and the prosecution. Chief Defense
Counsel authority to appoint defense counsel earlier than the charging
stage should be limited to occasions that respond to requests from the
Chief Prosecutor.
The amendment retains provisions that imply that an accused has the
option not to appear in court, as section 949a lists presence at trial
as a ``right'' of the accused. I believe this provision frustrates both
the delivery of effective justice and the appearance of justice, which
we hope confidently to portray to the accused, our Nation, and the
world, whose scrutiny we should welcome. I recognize that requiring an
accused to appear may lead to disruptive behavior in court. There are
provisions to remove the accused if the behavior disrupts the process.
The decision whether or not the accused remains in court after such
disruptive conduct should be left to the judge; there should be no
``opt out'' by which the judge permits an accused, perhaps weary or in
protest, not to appear at a session of court.
The proposed amendment addresses the right to ``suppress''
evidence. I recommend that more appropriate language would be to
``exclude'' evidence from the factfinder or sentencing authority as a
sanction for illegal conduct by the government.
It is encouraging to see Congress actively engaged in improving
military commissions. There now seems to be a greater understanding
that we--as a Nation--are challenged by a Law of War problem rather
than a matter to be addressed solely by domestic criminal law. Military
commissions historically represented an advance in the law--a
civilizing, judicial measure, rooted in the due process of the Western
legal tradition and the principles of restraint, discrimination, and
accountability of the maturing Law of Armed Conflict. I recognize that
the proposed amendments are intended to foster those traditions. In
making fine changes to a system that is functional and just, we must be
mindful that commissions stand on a distinct legal footing not because
they are a ``lesser'' form of justice, but because they are uniquely
able to bring justice in light of factors unique to how we, a nation of
laws, defend our freedoms, and fight and win our Nation's wars.
Chairman Levin. Thank you very much.
Mr. Marcus.
STATEMENT OF DANIEL MARCUS, FELLOW IN LAW AND GOVERNMENT,
WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY
Mr. Marcus. Thank you, Mr. Chairman. I appreciate the
opportunity to testify today.
I do believe there is a role for Article III courts in some
cases involving some of the Guantanamo detainees and some of
the other individuals who've been treated as enemy combatants
at one time or another since September 11. I believe our
Article III courts have shown themselves able to effectively
try terrorists in Federal courts in the Moussaoui case, the
Padilla cases, and some of the earlier cases.
For example, someone like Padilla or someone like al-Marri,
who was arrested by law enforcement authorities in the United
States, far from the traditional battlefield, is an appropriate
candidate for Article III criminal prosecution.
I notice that one of the Guantanamo detainees was recently
transferred to the Federal court system and will be tried in
the Southern District of New York in connection with crimes
connected with the bombing of the East Africa embassies in
1998. I think he is also an appropriate candidate for an
Article III court because it's not clear that he's
appropriately treated by a military tribunal since his acts
were committed at a time when we arguably were not at war with
al Qaeda in a strict military sense.
I do believe that, while the Federal courts can try many
terrorism cases, there are a lot of terrorism cases involving
the Guantanamo detainees that would be difficult, not
impossible but difficult, to try in a Federal court. I think
that an improved military commissions system is an appropriate
way of trying these defendants.
I think this committee's bill takes major steps toward
perfecting the existing military commission system, which was
already improved significantly by the MCA. But I do think there
are some additional steps that could be taken and I've outlined
some of those in my testimony.
[The prepared statement of Mr. Marcus follows:]
Prepared Statement by Daniel Marcus
Chairman Levin, Senator McCain, and other members of the committee:
Thank you for inviting me to testify on one of the most important of
the difficult set of issues facing Congress and the Administration with
respect to the detainees held at Guantanamo Bay: In what forum should
detainees who are believed to have committed war crimes be tried--
Article III courts, courts-martial, or military commissions?
Unlike my colleagues on this panel, I am not an expert on military
justice. But as a Government official and a law professor, I have been
following these issues closely for the last six years--first, as
General Counsel of the 9/11 Commission, and since 2005, teaching
National Security Law and Constitutional Law at the Washington College
of Law, American University. Before that, I was for many years a
partner in the law firm of Wilmer, Cutler & Pickering, and I served in
the White House Counsel's Office and in several positions at the
Department of Justice, including Associate Attorney General, from 1998-
2001.
The questions surrounding detention and trial of the Guantanamo
detainees have become more complicated than they looked in late 2001
and early 2002, when the first detainees were captured in Afghanistan
and sent to Guantanamo. In the wake of the September 11 attacks,
Congress had quickly enacted the Authorization to Use Military Force
(AUMF), essentially authorizing the President to conduct an armed
conflict against al Qaeda and the Taliban. Pursuant to the AUMF, the
President had sent thousands of U.S. troops to Afghanistan to depose
the Taliban as the de facto government of Afghanistan and to capture or
kill the al Qaeda fighters and leadership. While the opponents in this
armed conflict were not nation-states, the conflict seemed very much
like a traditional armed conflict or ``war.''
In the years since then, however, we have come to the realization
that this is a different kind of war that is not so easy to define or
limit, territorially or temporally. While the traditional battlefield
is in Afghanistan (and to some extent, arguably, the adjacent western
border areas of Pakistan to which al Qaeda and the Taliban have fled),
al Qaeda continues to operate in other parts of the world, either
directly or through other, loosely affiliated organizations. It has
become clear that this conflict is one of indefinite duration, which
will not end with a truce or surrender. Finally, we have learned that
even on the Afghanistan battlefield itself, it is not nearly as easy as
in traditional wars against uniformed members of regular armed forces
to determine who is and is not an enemy combatant.
These problems have been compounded, in my view, by some serious
mistakes and over-reaching by the last administration in the years
immediately following the September 11 attacks--the reliance on
strained legal arguments to minimize or avoid entirely the application
of the Geneva Conventions and the Convention Against Torture; the
effort to deny the Guantanamo detainees any opportunity to challenge
the determination that they were enemy combatants; and the creation of
a system of military commissions that almost no-one outside the
Administration believed provided anything close to a fair process for
trying detainees for war crimes. This last mistake has delayed for
years bringing the Guantanamo detainees to justice for their crimes.
Thanks largely to the Supreme Court and Congress (in the Detainee
Treatment Act and the Military Commissions Act (MCA)), there has been
significant progress in correcting these mistakes and providing a legal
process for the detainees that can be defended as consistent with the
basic principles of our military and civilian justice systems. But more
remains to be done, and there are important decisions that this
Congress and this Administration still have to make. I congratulate
this committee for taking the initiative in addressing these issues.
So, where should we go from here with respect to trials of the
detainees? Some argue for abandoning the military justice model (if not
the entire law of war paradigm) and prosecuting the detainees only in
Article III district courts (or perhaps some new special national
security court staffed by Article III judges). I believe there is a
role for Article III courts in some types of cases and that our U.S.
district courts--in cases such as Moussaoui and Padilla--have shown
themselves capable of trying major terrorism cases. I also believe that
it is inappropriate to use military tribunals to try U.S. citizens
(such as Padilla) or others lawfully in the United States (such as al-
Marri) who are arrested by law enforcement authorities in the United
States, far from any traditional battlefield. The same is true for some
of the Guantanamo detainees who were captured, not in Afghanistan, but
in countries such as Bosnia or Algeria, and whose alleged crimes are
unrelated to the events of September 11 or the war in Afghanistan. A
good example is Ahmed Khalfan Ghailani, who was recently transferred
from Guantanamo to a Federal prison in New York for trial in U.S.
District Court on charges arising out of his alleged participation in
the bombing of the U.S. embassies in East Africa in 1998. He is charged
with a very serious terrorist act, but not one properly regarded as a
war crime triable by a military commission or court-martial.
I have become convinced, moreover, that while the Federal courts
can try many terrorism cases, there are some cases in which it would be
very difficult to try Guantanamo detainees in Federal court. Of course,
I am not privy to the evidence that the Government has gathered with
respect to any detainee. But I gather that there are two main reasons
why it is difficult to try some detainees in Federal court: First, in
some cases the key evidence of guilt is statements of the defendant
that could not be introduced in Federal court because they were made
without prior Miranda warnings or were the ``fruit of the poisonous
tree'' of coerced statements. Of course, some of these statements would
not be admissible under the MCA or this committee's bill, but a
significant number would.
Second, and perhaps more important, the more public nature of
trials in Federal court--where it is extremely rare to close any
proceedings to the public--and the hearsay rules that apply in Federal
courts make it very difficult to conduct a trial involving certain
kinds of highly sensitive national security information. The prime
example of this is where important evidence against the detainee is
from an intelligence source whose identity cannot be made public. These
difficulties are also present, to a large extent, with court-martial
trials. Under the MCA as it would be amended by this committee's bill,
however, and under changes in military commission procedures already
adopted by the new administration, some hearsay evidence found reliable
by the presiding judge could be admitted. And the greater flexibility
that the military judge has to close portions of a military commission
trial (with the defendant and his counsel still present) will enable
the fair presentation of more sensitive national security information.
I was initially of the view that it would be preferable to try all
detainees by court-martial (or in Article III courts)--not because I
thought military commissions could not be conducted in a fair manner
that adequately protected the rights of defendants, but because I
thought that the original military commission regime that was held
unlawful by the Supreme Court in its 2006 Hamdan decision had given
military commissions such a bad image around the world that we ought to
choose some other forum to try the detainees. But I have become
convinced that an improved system of military commissions, while not
the ideal choice, is the best--or perhaps one should say the least
worst--of the alternatives before us for trying many of the detainees.
In opting for an improved military commission system, I am also
influenced by the interrelationship of this issue with the very
difficult issue of indefinite or preventive detention of those
detainees who cannot be tried or safely released. President Obama came
into office, it appears, hoping that we could not only close
Guantanamo, but also try (and convict) or release all the Guantanamo
detainees. It seems likely, however, that the administration will
conclude that this cannot be done--that because of evidentiary problems
and national security sensitivities, there will be some ``guilty'' and
dangerous detainees who cannot be tried in any forum and who therefore
should continue to be detained under the law of armed conflict (with
periodic court review and additional safeguards). Such a longer-term
detention system may be necessary, but it is certainly undesirable from
a civil liberties standpoint. One reason I conclude that improved
military commissions are our best option for trying many detainees is
that I believe it will result in more detainees being tried, thus
reducing the number of detainees who continue to be detained without
trial.
Finally, let me list some of the important ways that the commission
system established by the MCA can and should be improved, bringing it
closer to the standards of courts-martial. (Some of these are already
addressed in the committee's bill.):
The overbroad definition of ``enemy combatant'' should
be narrowed to be more consistent with the law of armed
conflict and the traditional battlefield concept.
The list of offenses triable by military commissions
should be revisited, to assure that it can be defended as
consistent with the law of armed conflict. In particular, a
fresh look should be taken at whether ``material support of
terrorism'' and conspiracy can be deemed war crimes.
Hearsay evidence should be admissible under more
limited circumstances, with the burden on the prosecution to
establish the reliability of the evidence.
Statements obtained as a result of all cruel, inhuman,
or degrading treatment, regardless of when that treatment took
place, should be excluded. Only statements that meet basic
standards of voluntariness should be admitted.
There should be more robust requirements for
disclosure by the prosecution of potentially exculpatory and
mitigating evidence to the defense.
The reviewing court (whether it is the Court of
Appeals for the Armed Forces or the Court of Appeals for the
District of Columbia Circuit) should have full appellate
authority to review the military commission's judgment and
findings, comparable to that of a Federal court of appeals
reviewing a district court judgment of conviction.
Habeas actions should be available to defendants in
military commission cases to the same extent that they are
available to court-martial defendants.
Thank you for the opportunity to testify. I would be happy to
answer your questions.
Chairman Levin. Thank you very much, Mr. Marcus.
Why is it difficult to try some of or most of the
Guantanamo detainees in Article III courts?
Mr. Marcus. I think there are two main reasons and I think
they were adverted to in the testimony of the first panel.
There are some Federal court rules with respect to
admissibility of statements. The Miranda rules, for example,
the fruit of the poisonous tree doctrine, that would make it
difficult to admit some statements by detainees that should be
admitted as reliable, voluntary statements under all the
circumstances.
I think I would associate myself with the very interesting
dialogue between DOJ and DOD representatives and Admiral
MacDonald about the issue of voluntary statements and the ``all
of the circumstances'' test. I would align myself with Mr.
Johnson and Mr. Kris and with the administration, that I think
we need a totality of the circumstances test, but it has to be
anchored to voluntariness. I do think the principle in our
system that confessions should be admitted only if they are
voluntary is a very important constitutional and policy
principle and we ought to adhere to it. I think it may well be
possible, as you and Senator Graham have suggested, to work out
some language between that of the committee's bill that would
satisfy these concerns, but I haven't seen the administration's
language.
The second reason I think is that in military commissions
it will be easier to close proceedings to handle classified
evidence and to handle sensitive national security issues.
Obviously we don't want completely closed proceedings, but I
think there's more flexibility in the military commissions
system to ensure that we can get the national security
information that we need to convict these guys without
compromising national security.
Chairman Levin. General Altenburg, why do we need military
commissions? Go to some of the practicalities? Then I'm going
to ask you, Admiral, to comment on their testimony.
General Altenburg. Senator Levin, we don't need military
commissions unless we want to prosecute some of these people.
We can just detain the people who we captured on the
battlefield and have discussions and debates with international
legal scholars about, what does this 21st century non-state
actor paradigm mean for the right under the Geneva Convention
to detain people you've captured until the war is over if you
can't really define when the war is over. You're not capturing
territory, there's no capital to get, so forth and so on.
We can just detain them and not worry about it.
Chairman Levin. Why is it desirable from a practical
perspective?
General Altenburg. First of all, it's desirable because we
can show the American people just how bad these people are and
also we can show the international community just how bad these
people are.
The reason we have to have military commissions is, quite
frankly, some of these people can't be tried in Article III
courts. There's just not the evidence to try in Article III
courts. My own view is that alien, unprivileged belligerents
captured on the battlefield should not be entitled to the
constitutional protections that American citizens have. I don't
think we should settle for some second-rate system, but in my
mind the MCA together with what you've put together in the last
few weeks exceeds all international standards. It certainly
exceeds anything that's being done at The Hague.
One of the great failings several years ago in our
government was in failing to educate the public as to what the
standards are and what is at stake that the law of war applies.
Instead, critics have been able to define the terms of the
debate and the debate has been framed in the context of
domestic criminal law. That's not what the debate should have
been about. There were many issues to debate--How do you tell
when the war is over? What do we do about non-state actors? How
do we characterize them? There were lots of things to debate.
Senator, I know you've probably heard before the comment
that throughout the Vietnam war the U.S. Government's position
was consistent with regard to the people that were captured and
kept by the North Vietnamese. That position was: You take care
of them. Even though you're not a signatory to the Geneva
Conventions, we expect you to treat them with dignity and
respect. When the war is over, you will return them to us.
The U.S. Government, Democratic and Republican, never said:
When do they get a lawyer? When do they get a trial? How can
you hold them? This isn't fair. That was never an issue. We
never heard anybody 7 or 8 years ago talking about that and
educating our public that that's what the standard should be,
and not domestic criminal law.
Chairman Levin. General, you've said that these procedures
as we've drafted them exceed the procedures at The Hague in
terms of protection for people. You've also indicated that you
have a couple suggestions that you've made relative to our
language. Other than those two suggestions, do you believe this
is the right direction for us to go as we've drafted it?
General Altenburg. Yes, Senator I do.
Chairman Levin. Now, Admiral Hutson, let me put the
question to you a little more precisely. We've had witnesses,
not just today but long before today, that point to the
implausibility of some of the procedures being provided to
detainees. These include Miranda warnings to prisoners that are
captured in the course of hostilities, the impracticability of
documenting the chain of custody for physical evidence
collected on the battlefield, and the difficulties posed by the
need to use highly sensitive national security information,
including evidence from intelligence sources whose identity
cannot be made public.
Tell us why is it not appropriate to use military
commissions, providing those commissions meet the standards
that the Supreme Court has set out in Hamdan?
Admiral Hutson. Mr. Chairman, I'm not sure that it is
inappropriate to use military commissions. I'm only suggesting
that I think that the much better avenue is to use the tried
and true U.S. district court system, the Federal system, that
has tried many, many, many terrorists quite successfully over
the years. I think fundamentally what this debate comes down to
for me is that I think I have more faith in the flexibility and
adaptability of the Federal courts than others perhaps have.
Miranda is a judge-made law. The word ``Miranda'' is no
place in the Constitution. Voluntariness has a place in the
Constitution. I think that U.S. district courts are going to be
fundamentally capable of dealing with the vagaries of those
issues, and they are not going to, as somebody suggested
earlier, require the soldier to give Miranda rights after he
breaks down the door and holds somebody at gunpoint. That's not
the mission. It's not a law enforcement mission. At that point
it's not an intelligence-gathering mission. That's all part of
the war.
I don't think that the Federal Rules of Evidence or the
Federal Rules of Criminal Procedure are going to require that.
Now, if I am wrong about that I would urge that this
committee--and the Judiciary Committee I suspect would have a
dog in that fight--might want to look at those rules and make
modest changes to the extent you feel it's necessary, rather
than creating this whole parallel system, because this whole
parallel system to the extent it complies with Common Article
III and provides all the judicial guarantees considered to be
indispensable by civilized people, then we've duplicated to a
large extent the Federal court system and there's just no
reason to do that.
Moreover, I think you lose a lot of expertise and
experience and precedent. You're going to bring down on the
shoulders of the U.S. Armed Forces a lot of criticism, because
we've tried this twice before and just as surely as God made
little green apples, this process is going to be criticized.
Fairly or unfairly, it's going to be criticized by appellate
lawyers, by media, by critics.
The military doesn't need it. DOJ won't have to endure it.
We'll end up with the world being preoccupied not with the
crimes of the terrorists, but with the perceived alleged
deficiencies in our system. I'd just rather use the system
that's out there and has worked so well over the years.
Chairman Levin. I think a parallel system has existed for a
long time. This is not a creation of a parallel system.
Senator Graham.
Senator Graham. Admiral Hutson, I have a lot of respect for
you and we've had a lot of debates about this, but I'm going to
be very blunt with you. On July 12, 2006, you came before the
House and the Senate and you urged us to use the UCMJ as the
model, and you said: ``I was an early supporter of the concept
of military commissions and their use in the war on terror. I
believed then and I still believe now that they are
historically grounded and the proper forum to prosecute alleged
terrorists.'' You submitted to the committee changes to the
UCMJ that you thought were practical.
What's changed?
Admiral Hutson. I think I was an early supporter of
military commissions, before we actually put flesh on the
bones. I was convinced in those days, quite frankly, that if
you populated commissions with people like John Altenburg they
were going to fly, it was going to be great. As it turned out,
they weren't. We have been here now for how many years, and
we've tried two cases.
Senator Graham. Yes, but my point is that you said that the
UCMJ should be the starting point and that you believed that
the military system was a sound way to try terrorists, and you
suggested to Congress that you would deviate from the UCMJ, but
only when necessary. Quite frankly, I agree with you. I do not
agree with you now when you say that we should abandon the
military commission as an option. I do believe, as the other
two witnesses have indicated, that it has a very strong role to
play in this fight we're in, and historically it's been used in
the past.
I would like to submit, Mr. Chairman, the testimony of
Admiral Hutson from July 12, 2006, to the House.
Chairman Levin. That'll be received.
[The information referred to follows:]
Senator Graham. I don't want to belabor the point. What
we're trying to do is find a way to make the commissions as
effective as possible. Let's get back to this idea about what
Senator Reed said, who is a dear friend, if we looked at every
detainee as a common criminal. Mr. Marcus, as a domestic crime,
what legal theory would we have to hold someone indefinitely if
they were all viewed as a domestic criminal law prism? How
could you do that?
Mr. Marcus. Senator, I don't think there is any existing
authority. I'm not sure there should be.
Senator Graham. Mr. Chairman, it would be the biggest
mistake this country could make, to use the criminal model, but
yet still hold people indefinitely without trial. I do not
believe that is a choice we have to make, but if we're going to
view these people as common criminals across the board, then
we've lost the ability to use military law, which would allow
detention. Do you agree, if you use the law of armed conflict
you could detain someone indefinitely?
Mr. Marcus. Yes, I do, Senator, subject to the caveat of
Justice O'Connor's opinion in the Hamdi case, saving the issue
of forever.
Senator Graham. General Altenburg, in the Hamdi case
Justice O'Connor said you have to have something akin to
Article 5 under the Geneva Convention to make the initial
determination. Under the Geneva Convention, all that's required
under Article 5 to determine status is an independent tribunal;
is that correct?
General Altenburg. Yes.
Senator Graham. In the battlefield world that could be one
person. Is that right, Admiral Hutson?
Admiral Hutson. Yes, I think that's right.
General Altenburg. Senator, under the Geneva Convention
that's true. The United States, however, has implemented it so
that it requires three officers. You cannot, for example, use
just one officer.
Senator Graham. Okay, so it's a three-officer decision. The
point I'm trying to make is that I don't want to use the
Article 5 dynamic because, Admiral Hutson, you said before,
this is a war without end. We're going to need something new.
It goes back to Senator Udall's statement, we have to come up
with a hybrid system.
For those people that we're not going to try or be able to
try, we're going to have to do something beyond Article 5.
That's where I think civilian courts under habeas play a very
important role. I want to make sure we preserve that.
Admiral Hutson. I think we've already, in some respects,
made a decision that they're criminals, in the sense that we're
prosecuting them in the first place. First of all, I don't
think you have to make the choice of prosecuting them or
holding them. If you want to hold them, you can hold them.
Senator Graham. Under what theory?
Admiral Hutson. Under the theory that they are prisoners
presumably caught in the war. But in World War II, in Korea,
and in Vietnam, we didn't prosecute Hitler's driver.
Senator Graham. Right.
Admiral Hutson. We held him if we had him, until the
cessation of the hostilities.
Putting aside Khalid Sheikh Mohammed and people like that,
once you decided that you're going to prosecute somebody like
Hicks, you've already in my mind made the decision that he's a
criminal.
Senator Graham. A criminal under the law of armed conflict.
The point I'm trying to make is that domestic criminal law
applied to the detainee population would not allow this Nation
to honorably hold someone indefinitely. Do you all agree with
that?
General Altenburg. I do.
Admiral Hutson. I do, yes, sir.
Mr. Marcus. Yes, sir.
Senator Graham. Do any of you doubt that some of the people
being held at Guantanamo Bay, if released tomorrow, would go
back to killing Americans?
General Altenburg. I agree with that statement.
Senator Graham. Admiral Hutson?
Admiral Hutson. I haven't looked at their files, but it's
certainly possible. I would presume that would be the case.
Senator Graham. I'll just end with this, Mr. Chairman. I
want to compliment this committee. I think you have taken a
very reasoned approach to military commissions. They're
historically valid. The Supreme Court has told us how they
should be formed. What we are doing with this bill, in my
opinion, is setting a standard beyond what international law
would require if they were brought to The Hague and is
something the Nation can be proud of. I don't think we've
weakened ourselves at all. I think the extra process that we're
providing these detainees will confer a legitimacy to the
trials that is necessary for us to win this war. I think we're
very close to producing a product the Nation can be proud of,
and I've enjoyed working with you.
Chairman Levin. Thank you very much, Senator Graham, for
all the energy and effort and experience that you've put into
this effort. It's been invaluable.
Senator Begich.
Senator Begich. Mr. Chairman, thank you very much. Thank
you, Mr. Chairman and Senator Graham, for your work on this.
I have some clarification questions. Admiral Hutson, I'm
following up on what Senator Graham said. In 2006 you made some
comments in regards to the commission and the concept of the
commission with some recommendations. Then in your explanation
that you just gave you indicated you supported the concept if
it would have had certain people on it, and then you kind of
stopped there in your explanation.
I'm trying to find out the difference from then to now, so
I understand. Then I have another follow-up for you.
Admiral Hutson. I think the difference is time. We can't
walk that cat back. We've tried this twice. It's been roundly
criticized. I very much admire the work that this committee has
done with this proposed legislation. The question is what do we
get out at the other end of the process, and I have to say that
I've changed my mind. I've come to believe that the Federal
courts have demonstrated over the years their ability to do
this.
As I said before, I worry about the criticism that it's
going to bring on the military. We're asking the military to
try to be the organization responsible for prosecuting the
worst criminals, among the worst criminals in our Nation's
history. That's just not part of DOD's mission. I think it's a
distraction that is unnecessary, given the fact that we have
this well-regarded DOJ and Federal court system.
Senator Begich. Let me ask you this. First a comment. I
don't worry too much about criticism for DOD or others. It's
life. No matter what you make, in decisions you're going to get
criticized for something, even if you do something that you
think is very well intended. That's the way life is and I think
DOD has withstood criticism on many fronts over the decades and
I'm not too worried about that. That shouldn't be a reason why
we design policy, if you're going to get criticized or not.
Do you then believe that all detainees should go through
the Federal court system and there should be no commission of
this kind or any element of this? When I say ``this,'' in this
situation that we're in now or any future situation in any
conflict?
Admiral Hutson. I was gratified when I heard Jeh Johnson
say--although not everybody was--that there was an
administration preference for Article III courts. I'm not
saying that I can't conceive of a situation in which the
military commission would be appropriate. I don't see these
terrorists or the alleged terrorists as being warriors or
combatants. I see them as being criminals and thugs that sort
of mindlessly and heedlessly commit war crimes. I'd prosecute
them as criminals.
Senator Begich. I want to make sure we're on the same page
with what I'm hearing and what you're saying. That is, in this
situation the commission is not necessarily the best idea. You
did not rule out that in other conflicts in the future a
commission may not be a bad idea.
Admiral Hutson. No, absolutely.
Senator Begich. Then why not just set it up now? Let's just
do it. Your earlier argument was we've tried this, gone down
this path twice, and it didn't work, and you kind of wrote it
off. Now you've said that it's okay maybe in the future with
some other conflict, that may not be determined yet. Why not
just set it up? We have a good format now. Let's just do it.
Admiral Hutson. I didn't want to get into that because it's
not a bad argument. Just once I've set it up I wouldn't use it
unless we're talking about Himmler and Goering.
Senator Begich. My thought on this is--and I have listened
to the chairman explain this to me in a variety of ways, most
recently in one of our committee meetings--I'm convinced that
it seems to be a logical approach. I'm struggling on your
rationale why it isn't in this situation. I guess I would just
respectfully disagree. But I appreciate your comments.
To the other two, I don't know if you have any comments.
I'm just trying to get clarification. I don't know if you two
have any additional comments.
Mr. Marcus. I would just say it's an interesting dialogue.
There is a real debate as to whether we should treat the
situation we're in as an armed conflict or whether we should
treat it as a law enforcement, criminal law matter. I think
Congress made the decision in September 2001 to treat this as
an armed conflict, to authorize the President to use military
force.
As I said in my prepared statement, we do have to take
account of the fact that this is not a traditional war and
that's why I think the committee has taken some steps, by
changing the definition of ``enemy combatant,'' ``unlawful
enemy combatant,'' from the way it was in the MCA, to try to
limit the scope of the armed conflict approach to this.
I think as long as we're in an armed conflict authorized by
Congress it's appropriate to use the military justice system to
prosecute people for war crimes.
Senator Begich. Thank you very much.
General?
General Altenburg. Senator, I think that the fact that we
cherish our military and what our military does for this
country traditionally, and especially today, can lead us astray
in trying to ennoble all people that are warriors or consider
themselves warriors around the world. There's lots of bad
soldiers in lots of countries and they're still protected by
the law of war and they're still treated as soldiers.
My good friend Dean Hutson I think misses the mark a little
bit when he talks about how he doesn't want to give them credit
for that or he doesn't want to somehow ennoble them by
considering them warriors. He's right that they're criminals.
They're war criminals. He's right that they should be
disparaged and that they're despicable and all of that. But
still, based on what they've done, they have made themselves
into soldiers and they made themselves into, quite frankly, a
formidable enemy of this country. That's why I think that the
use of military commissions and the use of military law is not
only consistent, but paramount and should be used.
I agree that the Article III courts where they can be used
may be appropriate, especially where you have Title 18 offenses
and you don't have war crimes. I think it's an important tool
for this government and that they should use military
commissions in the context of this war.
Senator Begich. Thank you very much.
Thank you, Mr. Chairman.
Chairman Levin. Thank you very much, Senator Begich.
I think Senator Begich's point is a critical one here,
that, regardless of whether or not people think that most or
all of the detainees should be tried in Article III courts,
we're not addressing that issue in this legislation. We are
trying to reform our military commission law so that it passes
muster in the Supreme Court. That's our goal.
We're not deciding here where people would be tried,
whether Guantanamo or here. We're not deciding whether or not
they be tried by military commission or Article III courts.
What we are doing is what I think everybody really wants us to
do, including you, Admiral, which is to have procedures here
which will pass muster. You very forthrightly acknowledged in
your answer to Senator Begich, I thought, exactly that point.
That's what our goal is here.
It can be argued elsewhere about Guantanamo or here. If
you're going to have Article III trials, you clearly have to
have those trials here in the United States, whether it's 10
percent, 30 percent, 70 percent. Whatever the percent is of
people held in Guantanamo, you cannot empanel juries for
Article III crimes down in Guantanamo. It's not practical to do
it.
There's many reasons why we have to reform these procedures
so that they pass muster and we're going to continue to make
that effort.
We thank the three of you for your contribution to that
effort. You have differences of opinion, obviously, but they're
all valuable to us. If there are any suggested changes in the
language that you have specifically, other than the ones that
you may have addressed here today, feel free to get those to us
this week for the record because we're going to be taking this
bill to the floor next week.
We also have a written statement that's been presented to
the committee from Professor David Glazer, Loyola Law School in
L.A.; an article prepared by retired Federal Judge Patricia
Wald for the National Institute of Military Justice. These
materials will also be included in the record.
[The information referred to follows:]
Chairman Levin. Any additional questions, Senator Begich?
Senator Begich. No, thank you.
Chairman Levin. If not, again with our thanks, we will
stand adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator Daniel K. Akaka
hearsay evidence
1. Senator Akaka. Mr. Johnson and Mr. Kris, President Obama
announced recently, on May 15, 2009, that he will revive the military
commission system to prosecute Guantanamo (GTMO) detainees. Prior to
the President's announcement, it was reported that the administration
had expressed concerns that obstacles could be raised by Federal judges
to prevent the prosecution of some of the Guantanamo detainees,
specifically by barring the use of hearsay evidence gathered by
intelligence agencies and the prosecution of detainees who had been
subjected to harsh interrogation methods. Are the administration's
reported concerns valid?
Mr. Johnson. Pursuant to Executive Order 13492, we have assembled
an interagency team of personnel who are carefully reviewing each
detainee's file to assess whether or not prosecution is feasible. To
date, our team has reviewed over half of the cases, and a significant
number of them have been referred to a joint Department of Justice
(DOJ) and Department of Defense (DOD) prosecution team for potential
prosecution in either civilian court or military commission. There are
a number of factors that go into the decision as to the best forum for
prosecution, which are detailed in the attached protocol (see Annex A)
that has been agreed to by DOJ and DOD. As the President has made
clear, we do not intend to rely on any statements obtained through
torture or cruel, inhuman, or degrading treatment. Admission of hearsay
will have to meet the hearsay standards applicable in Federal courts or
military commissions. See, e.g., Fed. R. Evid. 801-807; 949a(b)(3) of
section 1031 of the 2010 National Defense Authorization Act (NDAA)
(passed the Senate on July 23, 2009).
Mr. Kris. Pursuant to Executive Order 13492, we have assembled an
interagency team of personnel who are carefully reviewing each
detainee's files to assess whether or not prosecution is feasible. To
date, our team has reviewed over half of the cases, and a significant
number of them have been referred to a joint DOJ and DOD prosecution
team for potential prosecution in either civilian court or military
commission. There are a number of factors that go into the decision as
to the best forum for prosecution, which are detailed in the attached
protocol (see Annex A) that has been agreed to by DOJ and DOD. As the
President has made clear, we do not intend to rely on any statements
obtained through torture or cruel, inhuman, or degrading treatment.
Admission of hearsay will have to meet the hearsay standards applicable
in Federal courts or military commissions. See, e.g., Fed. R. Evid.
801-807; 949a(b)(3) of section 1031 of the 2010 NDAA (passed the
Senate on July 23, 2009).
post-trial
2. Senator Akaka. Mr. Johnson and Mr. Kris, if the Federal
Government's ability to prosecute the detainees is constrained, and the
detainees are set free because they are either acquitted or never put
on trial, will the detainees be able, as some have asserted, to settle
anywhere in the Nation and presumably continue to plot to do harm to
its citizens and institutions?
Mr. Johnson. No. We intend to use all lawful and appropriate means
to protect the American people. As the President stated in his National
Archives address on May 21, 2009, although we are going to exhaust
every avenue that we have to prosecute those at Guantanamo who pose a
danger to our country, there may ultimately be a category of Guantanamo
detainees ``who cannot be prosecuted for past crimes,'' but ``who
nonetheless pose a threat to the security of the United States'' and
``in effect, remain at war with the United States.'' For the detainees
at Guantanamo, the President has stated that ``[w]e must have clear,
defensible, and lawful standards'' and ``a thorough process of periodic
review, so that any prolonged detention is carefully evaluated and
justified.'' Any such detention will be based on authorization from
Congress, i.e., the 2001 Authorization for Use of Military Force
(AUMF). As the Supreme Court held in Hamdi v. Rumsfeld, 542 U.S. 507
(2005), and as the administration has explained in its filings in
recent habeas cases, the detention authority Congress has conferred
under the AUMF should be informed by the laws of war, which have long
permitted detention of enemy forces for the duration of the armed
conflict to ensure that they do not return to the fight.
Mr. Kris. No. We intend to use all lawful and appropriate means to
protect the American people. As the President stated in his National
Archives address on May 21, 2009, although we are going to exhaust
every avenue that we have to prosecute those at Guantanamo who pose a
danger to our country, there may ultimately be a category of Guantanamo
detainees ``who cannot be prosecuted for past crimes,'' but ``who
nonetheless pose a threat to the security of the United States'' and
``in effect, remain at war with the United States.'' For the detainees
at Guantanamo, the President has stated that ``[w]e must have clear,
defensible, and lawful standards'' and ``a thorough process of periodic
review, so that any prolonged detention is carefully evaluated and
justified.'' Any such detention will be based on authorization from
Congress, i.e., the 2001 AUMF. As the Supreme Court held in Hamdi v.
Rumsfeld, 542 U.S. 507 (2005), and as the administration has explained
in its filings in recent habeas cases. the detention authority Congress
has conferred under the AUMF should be informed by the laws of war,
which have long permitted detention of enemy forces for the duration of
the armed conflict to ensure that they do not return to the fight.
3. Senator Akaka. Mr. Johnson and Mr. Kris, will a detainee who is
either acquitted or not put on trial go straight from the chambers of a
Federal judge to that of an immigration judge?
Mr. Johnson. We intend to use all lawful and appropriate means to
protect the American people. The authority to detain individuals under
the immigration laws pending their removal from the United States,
particularly where they pose a threat to national security, is one (but
only one) mechanism that may be relied upon, if necessary, to ensure
that detainees will not endanger our citizens.
Mr. Kris. We intend to use all lawful and appropriate means to
protect the American people. The authority to detain individuals under
the immigration laws pending their removal from the United States,
particularly where they pose a threat to national security, is one (but
only one) mechanism that may be relied upon, if necessary, to ensure
that detainees will not endanger our citizens.
______
Questions Submitted by Senator John McCain
overview of military commissions
4. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, I have a long record
expressing my support for military commissions as the correct forum for
trying detainees for alleged violations of the law of war. That said,
trials under the system established by Congress in the fall of 2006
have not gone forward rapidly and there have been a number of issues in
implementing the system that have led to delays. Are military
commissions a viable forum for trying detainees alleged to have
committed war crimes?
Mr. Johnson. Yes. As the President indicated in his May 21 National
Archives speech, reformed military commissions should be available for
prosecuting law of war violations. We appreciate that the Senate, on a
bipartisan basis, has undertaken the initiative to reform military
commissions by amending the Military Commissions Act (MCA) of 2006, and
section 1031 of the 2010 NDAA passed by the Senate on July 23
identifies many of the key elements we believe are important to further
improve the military commissions process. We are confident that through
close cooperation between the administration and Congress, reformed
military commissions can emerge as a fully legitimate and sustainable
forum.
Mr. Kris. Yes. As the President indicated in his May 21 National
Archives speech, reformed military commissions should be available for
prosecuting law of war violations. We appreciate that the Senate, on a
bipartisan basis, has undertaken the initiative to reform military
commissions by amending the MCA of 2006, and section 1031 of the 2010
NDAA passed by the Senate on July 23 identifies many of the key
elements we believe are important to further improve the military
commissions process. We are confident that through close cooperation
between the administration and Congress, reformed military commissions
can emerge as a fully legitimate and sustainable forum.
Admiral MacDonald. Yes Senator; in my personal view Military
Commissions are a viable and necessary forum for trying detainees
alleged to have committed war crimes. I believe that the Military
Commissions rule changes recently implemented within the executive
branch and the statutory changes now under consideration in Congress
will improve the Military Commissions process. However, I also believe
that we need to fully invest resources--fiscal and personnel--to ensure
that Military Commissions go forward in the interests of justice. In my
view, this is our last and best opportunity to implement a Military
Commissions system that will promote respect for the laws of war and
provide justice for the innocent victims of war; while also affording
accused war criminals the judicial guarantees that are recognized as
being indispensible to civilized peoples.
Admiral Hutson. They are in theory but have not been in practice.
Unfortunately, we are now at a point where they would not be seen as
being legitimate by most observers even if they are revamped and
improved.
General Altenburg. Yes.
Mr. Marcus. Military commissions, with improved procedures that the
Committee has under consideration, are a viable forum for trying many
of the GTMO detainees for war crimes. In some cases, however, Federal
courts are a more appropriate forum--e.g., where detainees are
prosecuted for crimes committed before September 11, 2001.
5. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what have been the
major reasons why military commission trials have taken so long?
Mr. Johnson. Only three commission cases have been completed to
date. There are several explanations for this, including the Supreme
Court decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (see Annex
C), which necessitated a restart of the process (including dismissal
and refiling of all charges), resourcing issues with respect to full-
time agents, paralegals, attorneys, and military judges, and the need
for travel to and from the trial location at GTMO.
We are working to ensure that adequate resources are devoted to the
commission process--for prosecution, defense and judicial functions--so
that any commission proceedings will be fair, thorough and efficient.
Mr. Kris. Only three commission cases have been completed to date.
There are several explanations for this, including the Supreme Court
decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (see Annex C),
which necessitated a restart of the process (including dismissal and
refiling of all charges), resourcing issues with respect to full-time
agents, paralegals, attorneys, and military judges, and the need for
travel to and from the trial location at GTMO.
We are working to ensure that adequate resources are devoted to the
commission process--for prosecution, defense, and judicial functions--
so that any commission proceedings will be fair, thorough, and
efficient.
Admiral MacDonald. In my personal view, the delay has been caused
by a combination of factors, including flaws in the original
Commissions Order and its implementing rules of evidence and procedure;
defects in structure and organization; shortcomings in fiscal and
personnel investment at both the investigative and trial level; legal
uncertainty stemming from Habeas litigation and in particular the
aftermath of the Hamdan decision, which essentially required a reset of
the entire process; and finally, the unique nature of the enemy we
face--a worldwide network of non-State actors who, by definition,
choose terrorism and reject the fundamental notion that the means and
methods of warfare must be limited, by law and humanity, to protect the
innocent, prevent unnecessary suffering, and promote a just and lasting
peace. This new type of war has presented complex legal and policy
challenges to the political branches of our Government and the Courts.
Admiral Hutson. We initially tried to reverse engineer the process
by starting at ``conviction'' and work backward to ensure that result.
That didn't work but we weren't willing to start fresh and create a
system that would work.
General Altenburg. Implementing regulations for the MCA were not
completed until April, 2007. At that time the convening authority began
referring cases to trial. Three cases were completed in 2008, and at
least three more would have been completed in 2009 if the new
administration had not directed a halt to the proceedings. U.S. v.
Khadr was set for trial in January 2009 (witness travel was scheduled
for Inauguration weekend); U.S. v. al Darbi was set for July, 2009; and
U.S. v. Ghalaini was set for September 2009. Numerous other cases were
approaching trial, including the trial of the five September 11-related
detainees. About 20 cases had been charged, and the prosecution
intentionally withheld charging cases between November and January to
avoid the appearance of manipulating the commission process. All of the
cases referred to Military Commissions involve complex criminal
litigation for which timelines of 1-2 years would be common in Article
III courts. The novelty of the new MCA necessarily added time to the
initial cases as the legality of the forum and its procedures were
properly, repeatedly, and creatively challenged by defense attorneys.
It is important to remember in this context that it took the Article
III courts nearly 5 years to complete the prosecution of Zacharias
Moussaoui; that case was ultimately resolved by a guilty plea.
Mr. Marcus. The main reason for the unfortunate delay in bringing
detainees to trial for war crimes was the last administration's
creation of a commission system that was woefully lacking in
fundamental fairness. This led to litigation challenging the legality
of the commission system that resulted in the Supreme Court's Hamdan
decision and Congress's subsequent enactment of the MCA of 2006. While
the MCA improved the procedures substantially, experience since then
has shown, as the committee has recognized, that additional procedural
improvements are needed.
6. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, have the issues
contributing to delays involved the MCA itself, policy decisions
implementing it, or other issues such as resources provided to
prosecutors and defense counsel, and the difficulties raised by the
amount of classified evidence?
Mr. Johnson. Please see the answer to question 5. Additionally, we
believe that the proposed amendments in section 1031 concerning
classified evidence will make commissions proceedings more efficient.
Mr. Kris. Please see the answer to question 5. Additionally, we
believe that the proposed amendments in section 1031 concerning
classified evidence will make commissions proceedings more efficient.
Admiral MacDonald. Please see my previous answer. With regard to
the volume of classified evidence, although it has resulted in some
delay, that factor is not significant, in my view, compared to the
factors mentioned in my preceding answer.
Admiral Hutson. I think all of those factors have contributed to
the delays.
General Altenburg. I do not believe lack of resources has
significantly delayed the proceedings. There have been delays in
providing relevant discovery to the defense, largely created by the
policies of the intelligence agencies; e.g., classifying all statements
by High Value Detainees as TS/SCI when they obviously contain no
national security information, and reluctance by the intelligence
agencies to provide necessary discovery to properly cleared defense
counsel. These issues generate lengthy litigation before the Military
Judges. At the time the Executive order stayed military commissions,
DOD had not only substantially increased staffing for both prosecution
and defense, but also had given the Chief Prosecutor and Chief Defense
Counsel the discretion to approve or disapprove JAG candidates offered
to them by the Services. This screening process greatly improved the
overall experience level and quality of counsel being assigned to
commissions.
Mr. Marcus. See answer to question 5. I am not in a position to
comment on resource issues. There is no question that the problems of
dealing with classified evidence have contributed to delays, requiring
difficult choices for prosecutors as to what charges to bring.
7. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what aspects of the
MCA would you highlight as issues that should be reviewed or changed in
terms of fairness and efficiency?
Mr. Johnson. As this committee has recognized on a bipartisan
basis, commissions and the MCA should be reformed. In May, the
administration announced five changes to the rules for military
commissions that we believe go a long way towards improving the
process. We appreciate that the Senate, on a bipartisan basis, has
further undertaken the initiative to reform military commissions by
amending the MCA of 2006, and section 1031 of the 2010 NDAA passed by
the Senate on July 23 identifies many of the key elements we believe
are important to further improve the military commissions process.
There are additional modifications we would like to see to the Senate
bill, and we are working with Congress and staff on these
modifications. Specifically, the administration proposes the following:
Mr. Kris. As this committee has recognized on a bipartisan basis,
commissions and the MCA should be reformed. In May, the administration
announced five changes to the rules for military commissions that we
believe go a long way towards improving the process. We appreciate that
the Senate, on a bipartisan basis, has further undertaken the
initiative to reform military commissions by amending the MCA of 2006,
and section 1031 of the 2010 NDAA passed by the Senate on July 23
identifies many of the key elements we believe are important to further
improve the military commissions process. There are additional
modifications we would like to see to the Senate bill, and we are
working with Congress and staff on these modifications. Specifically,
the administration proposes the following:
Admiral MacDonald. There are three areas of the MCA that, in my
view, should be reviewed further: Appellate review standards,
classified information procedures, and the admissibility of statements
made by an accused. Before providing my recommendations on these three
areas, I would like to offer the following information by way of
background.
The MCA and the rules initially promulgated thereunder contained
provisions which were questioned in terms of both fairness and
efficiency. The hearsay rule that placed the burden of establishing
unreliability on the opponent was roundly criticized as forcing an
opponent to establish a negative, and was the reverse of the standard
generally recognized in domestic courts, where the proponent of any
evidence generally must establish it is sufficiently reliable for
admission. The standards for discovery were generally considered
insufficient, in that the rules required disclosure of exculpatory
evidence, but left unaddressed evidence that might mitigate the degree
of guilt or the sentence of the accused or that might serve to impeach
a government witness. The provisions addressing classified evidence
permitted a military judge to determine reliability of underlying
evidence, and redact classified sources and methods, preventing a
defense counsel from obtaining even a substitute for the redacted
materials. Counsel rights for the accused did not provide for a right
to a military counsel of the accused's own selection, if reasonably
available. Commissions were forbidden from determining whether a
particular accused was subject to the jurisdiction of the commissions,
instead forced to rely upon a determination made by the Combat Status
Review Tribunal (CSRT). Appellate review was not as robust as that
provided in courts-martial, limiting review to only legal review rather
than factual and legal review, as is the norm for courts-martial. The
rules regarding coerced statements contained the facially offensive
provision that would permit the introduction of statements obtained by
cruel, inhuman or degrading treatment so long as the statement was
obtained before the enactment of the Detainee Treatment Act, and so
long as the statement was reliable and in the interests of justice.
Finally the rules addressing classified information failed to provide
clear guidance to military judges and practitioners regarding the
standards for discovery and the procedures to be used in obtaining ex
parte review of petitions from the government. The rules governing
classified information have no clear analogue in either courts-martial
or Article III courts, depriving commissions of the benefit of the
jurisprudence that exists under established norms in either courts-
martial or district courts. Without such clear guidance, counsel have
been unable to obtain ex parte hearings to expedite the resolution of
classified information issues, and have had to seek multiple protective
orders to ensure all information, regardless of source, is properly
protected.
In May, the President forwarded five rule changes for the
commissions that became effective in July, which addressed the above
issues with the exception of the appellate review standards and the
handling of classified information. I recommend that the appellate
review standards mirror those found in courts-martial, vesting the
reviewing court at the first level of appellate review with factual
sufficiency authority. I also recommend that the classified information
rules be altered, relying on the Classified Information Procedures Act
(CIPA) as a touchstone for starting the draft, incorporating the
lessons learned from commissions to date, and those provisions of MRE
505 that permit closure of the proceedings when warranted. Counsel and
military judges will then have the benefit of more than 20 years of
jurisprudence from CIPA application to guide the use of the rules.
With regard to statements made by an accused, as I testified, I
support an admissibility standard based on reliability, the interests
of justice, the realities of the battlefield on the one hand, and
voluntariness, when statements are obtained appropriately removed in
time and distance from the battlefield on the other. To that end, I
propose the following language:
Admiral Hutson. Key is the review process. If we are going to use
Military Commissions, we should use the same review process that is
authorized by the Uniform Code of Military Justice (UCMJ) for courts-
martial.
General Altenburg.
(a) The inconsistency in the statute and rules which allows a
defendant to plead guilty to a capital offense, but then
prohibits imposition of the death penalty unless the defendant
is found guilty by a unanimous jury must be resolved.
(b) The initial level of appeal for military commissions
should remain as a special appellate court composed of military
appellate judges from the Service Courts of Criminal Appeals.
These judges are trained and experienced in the unique fact
finding role that only military appellate courts exercise. They
will provide far more expedited interlocutory and post-trial
reviews than will the Court of Appeals for the Armed Forces.
(c) The revised MCA should contain a provision which allows
non-capital defendants the right to elect to be tried and
sentenced by the Military Judge alone, as is standard in Court-
Martial practice.
Mr. Marcus. My recommendations for changes to the MCA are set forth
at page 6 of my prepared statement.
classified information
8. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, today, trials during
an ongoing war present greater risks to national security through the
unintended release or compromise of classified material than the
military tribunals at the end of World War II when fighting had ended.
During the development of the MCA in 2006, many experts from the Judge
Advocates General to experienced prosecutors and national security
officials in DOJ felt that use of the CIPA standards could
inadvertently expose some classified information, including sensitive
sources and methods, through the process of discovery and trial. What
are your views on how military commissions can best protect classified
information?
Mr. Johnson. We believe that rules addressing classified
information that are modeled on CIPA, but modified for the military
commissions context, will best protect classified information and
ensure fairness to the accused. We have worked closely with the
Committee staff on the Levin-Graham-McCain amendment, which was adopted
by the Senate on July 23. Specifically, the provision draws on the
procedures in CIPA, with some key modifications to reflect lessons
learned from past terrorism prosecutions. The amendment has the support
of both DOD and DOJ. We are grateful for the work of the Committee
staff in developing procedures that will adequately protect classified
information and advance the President's objective of ensuring that
commissions are a fair, legitimate, and effective forum for the
prosecution of law of war offenses.
Mr. Kris. We believe that rules addressing classified information
that are modeled on CIPA, but modified for the military commissions
context, will best protect classified information and ensure fairness
to the accused. We have worked closely with the committee staff on the
Levin-Graham-McCain amendment, which was adopted by the Senate on July
23. Specifically, the provision draws on the procedures in CIPA, with
some key modifications to reflect lessons learned from past terrorism
prosecutions. The amendment has the support of both DOD and DOJ. We are
grateful for the work of the committee staff in developing procedures
that will adequately protect classified information and advance the
President's objective of ensuring that commissions are a fair,
legitimate, and effective forum for the prosecution of law of war
offenses.
Admiral MacDonald. As noted in my answer to question 7, the rules
addressing classified information failed to provide clear guidance to
military judges and practitioners regarding the standards for discovery
and the procedures to be used in obtaining ex parte review of petitions
from the government. The rules governing classified information have no
clear analogue in either courts-martial or Article III courts,
depriving commissions of the benefit of the jurisprudence that exists
under established norms in either courts-martial or district courts.
Without such clear guidance, counsel have been unable to obtain ex
parte hearings to expedite the resolution of classified information
issues, and have had to seek multiple protective orders to ensure all
information, regardless of source, is properly protected.
In 2006, I advocated the use of MRE 505 as a way of protecting
classified information, because under MRE 505, military courts have the
ability to close a proceeding to the public to protect classified
information. CIPA provides no such authority, nor is it permitted in
district courts. However, experience has shown us that the breadth and
depth of CIPA's jurisprudence provides something that MRE 505 lacks:
practical guidance in the application of the rules governing the
handling of classified information. Combining the best of CIPA with the
best of MRE 505, and avoiding novel standards that have no analogue in
established rules, is a better solution.
I recommend that the classified information rules be altered,
relying on CIPA as a touchstone for starting the draft, incorporating
the lessons learned from commissions to date, and those provisions of
MRE 505 that permit closure of the proceedings when warranted. Counsel
and military judges will then have the benefit of more than 20 years of
jurisprudence from CIPA application to guide the use of the rules.
Admiral Hutson. CIPA has worked exceedingly well in Federal courts.
There is no reason in law or logic why it wouldn't be equally useful in
military commissions. You can't have a real trial without providing
that evidence to the defense. Otherwise, it is just a sham.
General Altenburg. A system for safeguarding classified information
and providing the intelligence community with the ability to help
assess the potential national security risks of going forward with
prosecution of a given case is best provided within the framework of
RMC and RCM 505. However, it must be recognized that in order to have a
fair trial when classified information is to be provided to the panel
(jury) as evidence, defendants must be provided access to that
information. The intelligence community must be forthright and
comprehensive in providing information to the prosecution. The
prosecution has adequate tools available under the rules to protect
national security (they are national security equities, not
``intelligence community equities'') while protecting the defense right
to confront evidence and guarantee a reliable result.
Mr. Marcus. I believe that CIPA has worked well in Federal court
criminal cases without compromising national security, and I see no
reason why it cannot work as effectively in military commission
proceedings. The ability of military judges to close sensitive parts of
the trial to the public is an additional safeguard.
9. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, have the originators
of classified information cooperated with the prosecutors in providing
all the required classified information in a timely manner and
providing declassified substitutes for the defense?
Mr. Johnson. We are very satisfied with the level of cooperation we
have received from the Intelligence Community. Sifting through
classified information on detainees is a time-consuming process. We
fully understand that this takes significant time and resources, and we
appreciate the level of effort and cooperation we are receiving.
Mr. Kris. We are very satisfied with the level of cooperation we
have received from the Intelligence Community. Sifting through
classified information on detainees is a timeconsuming process. We
fully understand that this takes significant time and resources, and we
appreciate the level of effort and cooperation we are receiving.
Admiral MacDonald. There is good cooperation; however, we can and
should continue to make timeliness a priority.
Admiral Hutson. I have no personal knowledge of this.
General Altenburg. No. The current process is exceptionally
timeconsuming and unpredictable. Intelligence organizations are not
designed to support prosecution of criminal cases. From the perspective
of the prosecution function the various intelligence agencies do not
cooperate; the Guantanamo Joint Task Force and Joint Intelligence Group
are also uncooperative when viewed from the perspective of judicial
system participants.
Mr. Marcus. I am not in a position to answer this question.
10. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what changes would
you recommend to the MCA's classified information protection provisions
based on military commission trial and discovery experience to date?
Mr. Johnson. See the answer to question 8.
Mr. Kris. See the answer to question 8.
Admiral MacDonald. As noted in my answer to questions 7and 10, the
rules addressing classified information failed to provide clear
guidance to military judges and practitioners regarding the standards
for discovery and the procedures to be used in obtaining ex parte
review of petitions from the government. The rules governing classified
information have no clear analogue in either courts-martial or Article
III courts, depriving commissions of the benefit of the jurisprudence
that exists under established norms in either courts-martial or
district courts. Without such clear guidance, counsel have been unable
to obtain ex parte hearings to expedite the resolution of classified
information issues, and have had to seek multiple protective orders to
ensure all information, regardless of source, is properly protected.
In 2006, I advocated the use of MRE 505 as a way of protecting
classified information, because under MRE 505, military courts have the
ability to close a proceeding to the public to protect classified
information. CIPA provides no such authority, nor is it permitted in
district courts. However, experience has shown us that the breadth and
depth of CIPA's jurisprudence provides something that MRE 505 lacks:
practical guidance in the application of the rules governing the
handling of classified information. Combining the best of CIPA with the
best of MRE 505, and avoiding novel standards that have no analogue in
established rules, is a better solution.
I recommend that the classified information rules be altered,
relying on CIPA as a touchstone for starting the draft, incorporating
the lessons learned from commissions to date, and those provisions of
MRE 505 that permit closure of the proceedings when warranted. Counsel
and military judges will then have the benefit of more than 20 years of
jurisprudence from CIPA application to guide the use of the rules.
Admiral Hutson. I would make whatever changes would bring MCs in
line with CIPA.
General Altenburg. This is a difficult issue. The problem is that
the intelligence agencies want to be the sole decisionmakers regarding
relevance of any information, and not turn over anything else. It seems
to me that the prosecutors should be properly entrusted with this
responsibility, but encounter difficulty with intelligence personnel.
When defense counsel object to prosecutor determinations then judges
will resolve the matters. Prosecutors must be empowered to make the
initial relevancy determinations. Those determinations will, of course,
be reviewable.
Mr. Marcus. The committee's bill contains provisions partially
embracing CIPA principles and procedures, and I understand that the
Justice Department has suggested additional steps to move further in
that direction. I encourage the committee to adopt CIPA principles and
procedures for treatment of classified information to the greatest
extent practicable.
crimes committed before september 11
11. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, the MCA addresses
crimes that were committed before September 11 in two ways. First, it
includes a statement that military commissions have jurisdiction over
offenses committed ``before, on, or after September 11, 2001'' (section
948d). Second, the MCA notes that it did not establish new crimes that
did not exist before its enactment, but codifies those crimes that
could be tried by military commissions so trials for crimes that
occurred before the date of enactment are not precluded (section 950p).
What are your views on the MCA's treatment of offenses that occurred
before September 11? Does this raise a constitutional ``ex post facto
law'' problem?
Mr. Johnson. Article I, section 9 of the Constitution prohibits the
Federal Government from enacting laws with certain retroactive effects,
including laws that ``make an action done before the passing of the
law, and which was innocent when done, criminal.'' Stogner v.
California, 539 U.S. 607, 610-12 (2003) (quoting Calder v. Bull, 3
Dall. 386, 390-91 (1798)). The MCA authorizes trial by military
commission of a number of substantive offenses. If an offense were
clearly not previously a crime under the law of war, section 950p of
the MCA would not save a prosecution for that offense from potential
dismissal on ex post facto grounds. Prosecution of a law-of-war offense
committed during armed conflict would not raise ex post facto concerns,
regardless of when the trial takes place.
Mr. Kris. Article I, section 9 of the Constitution prohibits the
Federal Government from enacting laws with certain retroactive effects,
including laws that ``make an action done before the passing of the
law, and which was innocent when done, criminal.'' Stogner v.
California, 539 U.S. 607, 610-12 (2003) (quoting Calder v. Bull, 3
Dall. 386, 390-91 (1798)). The MCA authorizes trial by military
commission of a number of substantive offenses. If an offense were
clearly not previously a crime under the law of war, section 950p of
the MCA would not save a prosecution for that offense from potential
dismissal on ex post facto grounds. Prosecution of a law-of-war offense
committed during armed conflict would not raise ex post facto concerns,
regardless of when the trial takes place.
Admiral MacDonald. In my opinion, it does not. There is precedent
and practice, both domestically and internationally, to charge and try
persons for alleged violations of the laws and customs of war, which by
definition, are not exhaustively codified into positive criminal
statutes. The International Criminal Tribunal for the Former
Yugoslavia, the International Criminal Tribunal for Rwanda, and the
International Criminal Court all contain residual clauses granting the
tribunals jurisdiction to hear cases of alleged violations of the
``laws and customs of war.'' The burden is on the prosecutor to show
that at the time of the alleged offense, there existed a customary rule
under the laws of war, which applied to the accused at the time of the
alleged offense.
Admiral Hutson. It clearly raises ``ex post facto'' issues. This is
a good example of why we should use the already existing Federal court
system and not military commissions and certainly not base convictions
on newly minted laws.
General Altenburg. It does not raise an ex post facto problem as
long as the crimes which are charged are rooted in the traditional law
of war and were actually punishable prior to September 11, 2001. The
MCA should state expressly that it is codifying existing law rather
than establishing new crimes; this will resolve a confusing issue.
Mr. Marcus. I am troubled by prosecuting most pre-September 11
offenses by GTMO detainees as war crimes because we were not engaged in
an armed conflict with al Qaeda or the Taliban before September 11. Of
course, crimes such as the 1998 attacks on the U.S. embassies in Kenya
and Tanzania or the 2000 attack on the U.S.S. Cole can and should be
prosecuted in U.S. Federal courts or appropriate criminal tribunals in
other countries. Most of the offenses set forth in the MCA were clearly
understood to be war crimes triable before military commissions before
the MCA was enacted. There is controversy as to only a few--
particularly conspiracy and material support of terrorism. I think it
is appropriate for Congress to deem conspiracy and terrorism to be war
crimes triable before military commissions. I think, however, that
``material support of terrorism'' is problematic because of its broad
sweep and unclear basis in the law of armed conflict.
12. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, have ``ex post facto
law'' issues been raised during military commission trials? How have
the judges ruled on that issue?
Mr. Johnson. Military commissions have ruled on ex post facto
issues in three cases: United States v. al Darbi (see Annex B), United
States v. Hamdan (see Annex C), and United States v. Khadr (see Annex
D). In those cases, the defense moved to dismiss specific charges for
lack of subject-matter jurisdiction. Al Darbi and Hamdan challenged the
charges brought against them for conspiracy, 10 U.S.C. 950v(b)(28),
and for providing material support to terrorism, 10 U.S.C.
950v(b)(25). Khadr challenged the charge of providing material support
for terrorism.
In all three cases, the Commission judge denied the relief
requested on grounds that the ex post facto clause of the U.S.
Constitution was not violated.
The defense has filed motions to dismiss based on ex post facto
arguments in the cases of United States v. Mohammed et al. (September
11 case) and United States v. al Qosi. Those motions remain pending.
Mr. Kris. Military commissions have ruled on ex post facto issues
in three cases: United States v. al Darbi (see Annex B), United States
v. Hamdan (see Annex C), and United States v. Khadr (see Annex D). In
those cases, the defense moved to dismiss specific charges for lack of
subject-matter jurisdiction. Al Darbi and Hamdan challenged the charges
brought against them for conspiracy, 10 U.S.C. Sec. 950v(b)(28), and
for providing material support to terrorism, 10 U.S.C.
Sec. 950v(b)(25). Khadr challenged the charge of providing material
support for terrorism.
In all three cases, the commission judge denied the relief
requested on grounds that the ex post facto clause of the U.S.
Constitution was not violated.
The defense has filed motions to dismiss based on ex post facto
arguments in the cases of United States v. Mohammed et al. (September
11 case) and United States v. al Qosi. Those motions remain pending.
Admiral MacDonald. Military commissions have ruled on ex post facto
issues in three cases: United States v. al Darbi, United States v.
Hamdan, and United States v. Khadr. In those cases, the defense moved
to dismiss specific charges for lack of subject-matter jurisdiction.
Darbi and Hamdan challenged the charges brought against them for
conspiracy, 10 U.S.C. 950v(b)(28), and for providing material support
to terrorism, 10 U.S.C. 950v(b)(25). Khadr challenged the charge of
providing material support for terrorism. In all three cases, the
Commission judge denied the relief requested on grounds that the ex
post facto clause of the U.S. Constitution was not violated.
Admiral Hutson. I have no personal knowledge.
General Altenburg. The defense has raised this issue in most, if
not all, of the pending cases. No judge has granted any motion to
dismiss the case on this basis.
Mr. Marcus. I am not aware of how the ``ex post facto'' issue has
been treated in military commission proceedings since the MCA was
enacted.
13. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should the MCA
continue to authorize trial of offenses that occurred before September
11?
Mr. Johnson. As President Obama said in his May 21 speech at the
National Archives, military commissions are an appropriate venue for
``trying detainees for violations of the law of war.'' We believe it is
important for the system's legitimacy that commissions try only conduct
that was a violation of the laws of war when it occurred, and that took
place during a relevant period of conflict. This could include some
offenses that were committed as part of an armed conflict prior to
September 11, 2001. The administration will work to ensure that
prosecutions under the MCA, including any amendments that may be
enacted to refine the offenses defined in that statute, meet both of
these standards.
Mr. Kris. As President Obama said in his May 21 speech at the
National Archives, military commissions are an appropriate venue for
``trying detainees for violations of the law of war.'' We believe it is
important for the system's legitimacy that commissions try only conduct
that was a violation of the laws of war when it occurred, and that took
place during a relevant period of conflict. This could include some
offenses that were committed as part of an armed conflict prior to
September 11, 2001. The administration will work to ensure that
prosecutions under the MCA, including any amendments that may be
enacted to refine the offenses defined in that statute, meet both of
these standards.
Admiral MacDonald. Yes. As the 9/11 Commission documented, members
of al Qa'ida and associated organizations intentionally attacked U.S.
civilians, civilian objects, and U.S. Armed Forces in violation of the
laws and customs of war prior to September 11. Military Commissions are
a war crimes tribunal, and they should have jurisdiction to hear cases
that predated September 11.
Admiral Hutson. I don't think there is a legal prohibition but I
think it is bad policy.
General Altenburg. Yes.
Mr. Marcus. No.
14. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what changes, if
any, would you recommend?
Mr. Johnson. The administration is committed to working with
Congress to address ex post facto and other legal concerns potentially
raised by prosecutions under the MCA. Among these recommendations is
that Congress consider amending section 950w to remove the offense of
``material support for terrorism,'' which the administration has
concluded appellate courts may find is not a traditional violation of
the law of war. If this offense is removed, the administration further
recommends that Congress consider amending section 950p to include a
clear statement that the offenses contained in the bill codify offenses
that have traditionally been triable under the law of war or otherwise
triable by military commission. Please see the answer to question 7 for
the administration's recommendations regarding additional modifications
we would like to see to the Senate bill.
Mr. Kris. The administration is committed to working with Congress
to address ex post facto and other legal concerns potentially raised by
prosecutions under the MCA. Among these recommendations is that
Congress consider amending section 950w to remove the offense of
``material support for terrorism,'' which the administration has
concluded appellate courts may find is not a traditional violation of
the law of war. If this offense is removed, the administration further
recommends that Congress consider amending section 950p to include a
clear statement that the offenses contained in the bill codify offenses
that have traditionally been triable under the law of war or otherwise
triable by military commission. Please see the answer to question 7 for
the administration's recommendations regarding additional modifications
we would like to see to the Senate bill.
Admiral MacDonald. I personally do not believe any changes are
needed regarding pre-September 11 offenses.
Admiral Hutson. I would prosecute those cases which are not barred
by the statute of limitations in U.S. District Court.
General Altenburg. None.
Mr. Marcus.I would eliminate the crime of material support of
terrorism.
hearsay
15. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, the MCA provides
broad authority to use hearsay evidence at trial so long as the judge
finds it is reliable and probative. However, the burden to show that
hearsay was not reliable or probative was put on the party opposing the
evidence, which normally is the detainee. Who should have the burden of
showing that hearsay is reliable and should be admitted at trial?
Mr. Johnson. In May the administration announced five rule changes
to the military commissions. One of those changes deals with this
issue--making sure that the party seeking admission of hearsay has the
burden to prove that it is reliable and probative, which is where the
administration believes the burden belongs.
Mr. Kris. In May, the administration announced five rule changes to
the military commissions. One of those changes deals with this issue--
making sure that the party seeking admission of hearsay has the burden
to prove that it is reliable and probative, which is where the
administration believes the burden belongs.
Admiral MacDonald. I fully support the change to this standard that
was forwarded by the President in a rule change that became effective
in July. The proponent of hearsay evidence, just like the proponent of
any evidence offered for admission, should have the burden of
establishing reliability and admissibility.
Admiral Hutson. The proponent.
General Altenburg. The party offering the evidence should have the
burden of establishing its admissibility. The trial judge then must
determine, as with any evidence offered by either party, whether the
evidence is probative and reliable, and therefore admissible. I
disagree with the assertion in this question that the government is
usually the party offering hearsay. I believe that the relaxed hearsay
provisions of the MCA will benefit the accused, who does not have the
unlimited access to live witnesses that the government does, at least
as much they will benefit the government.
Mr. Marcus. The prosecution should have the burden of establishing
admissibility of hearsay evidence.
16. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, is the hearsay
exception in the MCA too broad? If so, how should it be narrowed and
yet still take into account the realities of wartime circumstances when
witnesses may be involved in combat or intelligence operations and
foreign intelligence service personnel who may not be compelled to
attend trial may be involved?
Mr. Johnson. The administration supports the general approach taken
by the committee in reforming the use of hearsay evidence under the
MCA, which includes a general restriction on hearsay and a residual
exception. The administration, however, recommends a somewhat different
standard for when the residual exception should apply, based on whether
the hearsay evidence is more probative than other evidence that could
be procured through reasonable efforts. We believe this exception
accounts for the realities of wartime circumstances, while limiting the
use of this exception to circumstances in which it is warranted. Please
see the answer in question #7 for the administration's recommendation
on this issue.
Mr. Kris. The administration supports the general approach taken by
the committee in reforming the use of hearsay evidence under the MCA,
which includes a general restriction on hearsay and a residual
exception. The administration, however, recommends a somewhat different
standard for when the residual exception should apply, based on whether
the hearsay evidence is more probative than other evidence that could
be procured through reasonable efforts. We believe this exception
accounts for the realities of wartime circumstances, while limiting the
use of this exception to circumstances in which it is warranted. Please
see the answer in question #7 for the administration's recommendation
on this issue.
Admiral MacDonald. As a general matter, I believe that a hearsay
standard requiring that the proponent establish reliability is not
overly broad. However, I believe that that broad admissibility standard
should only be permitted when the proponent has established that there
is a sound, practical need to use hearsay evidence in place of direct
testimony from the declarant. I support a formulation similar to the
Senate proposal which contains a requirement that the proponent
establish that the declarant is unavailable, basing that unavailability
in the realities of wartime circumstances.
Admiral Hutson. It is too broad. The FRE are sufficient to account
for war time scenarios. Evidence will not be barred by hearsay unless
the context and motive is criminal investigation vice warfighting.
General Altenburg. The proposed amendments to the MCA are a
substantial improvement, but should be further refined to require that
the military judge determine, under the totality of the circumstances,
that a statement is reliable for the purpose for which it is offered.
In addition, the current requirement that a witness be unavailable
before hearsay is admitted, while furthering the goal of confronting
witnesses, will create extensive litigation in each case over the
unavailability of the witness and could make prosecutions by
commissions untenable. The military judge should be granted statutory
discretion to balance these factors when deciding admissibility of a
particular statement. It is worth remembering that flexibility in
hearsay is warranted not as a way to reduce the rigor or reliability of
the trial process but as a recognition of the way our combat troops
fight and the fact that evidence gathering in a war zone simply cannot
meet the strictures with which we are familiar in Stateside civilian
settings.
Mr. Marcus. I endorse the standard for admissibility contained in
the committee's bill.
coercion and due process rights of detainees
17. Senator McCain. Mr. Johnson and Mr. Kris, the Wall Street
Journal and the New York Times reported last week that the DOJ Office
of Legal Counsel issued guidance in May that detainees have some level
of due process rights that could bar use at trial of statements made
under coercion. What is your opinion of the level of due process rights
enjoyed by detainees and the degree of coercion that would violate a
detainee's due process rights?
Mr. Johnson. The administration believes that, whether military
commissions are convened in the United States or at Guantanamo, there
is a significant risk, in light of the circumstances of the Guant namo
detainees, that courts will apply a baseline of due process protections
in commission proceedings. This does not mean that courts would provide
commission defendants with the same array of constitutional rights that
defendants receive in Article III criminal trials. We do believe,
however, that there is a significant risk courts would afford
commission defendants with those due process protections that are ``so
rooted in the traditions and conscience of our people as to be ranked
as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). In
particular, we believe there is a substantial risk that courts will
hold that the Constitution requires application of a due process
voluntariness test for admission of statements of the accused, although
we do not believe that courts would apply the Miranda rules prohibiting
admission of unwarned statements. This is so regardless of whether the
commission proceedings take place in Guantanamo or the United States.
Mr. Kris. The administration believes that, whether military
commissions are convened in the United States or at Guantanamo, there
is a significant risk, in light of the circumstances of the Guantanamo
detainees, that courts will apply a baseline of due process protections
in commission proceedings. This does not mean that courts would provide
commission defendants with the same array of constitutional rights that
defendants receive in Article III criminal trials. We do believe,
however, that there is a significant risk courts would afford
commission defendants with those due process protections that are ``so
rooted in the traditions and conscience of our people as to be ranked
as fundamental.'' Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). In
particular, we believe there is a substantial risk that courts will
hold that the Constitution requires application of a due process
voluntariness test for admission of statements of the accused, although
we do not believe that courts would apply the Miranda rules prohibiting
admission of unwarned statements. This is so regardless of whether the
commission proceedings take place in Guantanamo or the United States.
18. Senator McCain. Mr. Johnson and Mr. Kris, would a prohibition
on use of testimony obtained through interrogation techniques amounting
to cruel, inhuman, or degrading treatment be sufficient to satisfy due
process if the evidence was otherwise deemed reliable and probative by
the military judge and its admission served the best interests of
justice?
Mr. Johnson. See our answer to question 17. A standard based on
reliability and the ``interests of justice'' would be vulnerable to a
constitutional due process challenge in those cases where a military
commission construed it to allow the admission of involuntary
statements of the accused. The use of such statements might then be
subject to reversal on appeal. Accordingly, there are compelling legal
and policy reasons to include an express voluntariness requirement.
That said, we believe that any voluntariness requirement for
military commissions cases should account, consistent with the law, for
the context in which statements later considered by military
commissions can occur. Specifically, the administration has proposed
the following as an alternative to 948r of the Senate bill, which
includes a voluntariness standard for military commissions cases, as
well as a clearer prohibition on the use of any statement obtained by
torture or cruel, inhuman, or degrading treatment:
Mr. Kris. See our answer to question 17. A standard based on
reliability and the ``interests of justice'' would be vulnerable to a
constitutional due process challenge in those cases where a military
commission construed it to allow the admission of involuntary
statements of the accused. The use of such statements might then be
subject to reversal on appeal. Accordingly, there are compelling legal
and policy reasons to include an express voluntariness requirement.
That said, we believe that any voluntariness requirement for
military commissions cases should account, consistent with the law, for
the context in which statements later considered by military
commissions can occur. Specifically, the administration has proposed
the following as an alternative to Sec. 948r of the Senate bill, which
includes a voluntariness standard for military commissions cases, as
well as a clearer prohibition on the use of any statement obtained by
torture or cruel, inhuman, or degrading treatment:
definition of ``unlawful enemy combatant'' or ``unprivileged
belligerent''
19. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, the Obama
administration has developed a somewhat different standard for
detention authority for use in the ongoing habeas cases and is not
using the term ``unlawful enemy combatant.'' Should the definition of
``unlawful enemy combatant'' as used for the purpose of jurisdiction of
military commissions be changed? If so, how?
Mr. Johnson. The administration supports the determination to
discontinue the use of the term ''unlawful enemy combatant'' in the
military commission legislation that passed the Senate on July 23. The
administration believes that it is unnecessary to establish a new term
of art for persons subject to trial by military commission.
Mr. Kris. The administration supports the determination to
discontinue the use of the term ``unlawful enemy combatant'' in the
military commission legislation that passed the Senate on July 23. The
administration believes that it is unnecessary to establish a new term
of art for persons subject to trial by military commission.
Admiral MacDonald. The authorities provided under the laws of war
to detain people are separate from jurisdictional definitions for war
crimes tribunals, and I support the administration's 13 March standard
on detention authority. With regard to the distinctions in terminology
between ``unlawful enemy combatant'' and ``unprivileged enemy
belligerent,'' the two terms are synonymous under Defense Department
Directive 2310.1E, and both may be found in commentary from leading
jurists. As a technical matter, the phrase ``unprivileged belligerent''
predates ``unlawful combatant'' and is the more commonly used term
under the laws of war.
Admiral Hutson. ``Enemy combatant'' or perhaps ``Unprivileged enemy
combatant.''
General Altenburg. The proposed change to the term ``unprivileged
enemy belligerent'' is a positive change, which will now include those
who engage in hostilities against our coalition partners.
Mr. Marcus. Yes. The definition of ``unlawful enemy combatant'' in
the MCA should be changed to reflect the substance of recent decisions
by U.S. District Judges in GTMO habeas cases, most of which have
limited the scope of detention authority to individuals who have taken
part in hostilities against the United States as part of al Qaeda or
the Taliban or who have provided substantial support to those
hostilities.
appellate review of military commissions
20. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, different routes for
appellate review of military commissions have been considered. The
current MCA system includes a new court within DOD, the Court of
Military Commission Review (CMCR), and mandatory review by an Article
III court, the U.S. Court of Appeals for the District of Columbia
Circuit, with the possibility of review by the U.S. Supreme Court.
Other alternatives have included the U.S. Court of Appeals for the
Armed Forces. What are your views on appellate review for military
commissions? Should an Article III court be involved, or should the
U.S. Court of Appeals for the Armed Forces conduct the appellate review
as is the case for courts-martial?
Mr. Johnson. We agree with the Senate that the scope of appellate
review must be expanded to include review of factual as well as legal
matters. However, we believe that a four-tier appellate structure
should be retained. The Senate bill eliminates the CMCR and eliminates
appeals from that court to the United Court of Appeals for the District
of Columbia Circuit. The Senate bill would instead route appeals
directly from the trial level military commission to the U.S. Court of
Appeals for the Armed Forces, thus replacing the current four-tiered
appeals structure with a three-tiered one. The administration believes
that it is important to retain a four-tiered structure, given the
complexity of the cases and issues likely to arise, and that the United
States Court of Appeals for the DC Circuit should be retained in the
structure.
Mr. Kris. We agree with the Senate that the scope of appellate
review must be expanded to include review of factual as well as legal
matters. However, we believe that a four-tier appellate structure
should be retained. The Senate bill eliminates the CMCR and eliminates
appeals from that court to the United Court of Appeals for the District
of Columbia Circuit. The Senate bill would instead route appeals
directly from the trial level military commission to the U.S. Court of
Appeals for the Armed Forces, thus replacing the current four-tiered
appeals structure with a three-tiered one. The administration believes
that it is important to retain a four-tiered structure, given the
complexity of the cases and issues likely to arise, and that the United
States Court of Appeals for the DC Circuit should be retained in the
structure.
Admiral MacDonald. I support review of military commissions by a
civilian court. For courts-martial, convictions are reviewed first by a
Service Court of Criminal Appeals, authorized to review a conviction
and sentence for factual and legal sufficiency, sentence
appropriateness and prejudicial legal error. Convictions are then
reviewed by the Court of Appeals for the Armed Forces for legal
sufficiency and prejudicial legal error, and if a petition for review
is granted, further legal review is available by the Supreme Court. I
support that same construct. While my preference would be to conduct
factual sufficiency review by military judges who have experience
conducting that type of review in courts-martial, the Court of Appeals
for the Armed Forces is fully capable of conducting a factual and legal
sufficiency review.
Admiral Hutson. If we use military commissions, then the military
court martial review process should be used. Bouncing into the civilian
system at the review level makes no sense.
General Altenburg. The current appellate review structure should be
preserved. The Court of Appeals for the Armed Forces is an
inappropriate forum for deciding interlocutory appeals, initial post-
trial appeals, and fact finding. These functions in the military system
belong exclusively to the Service Courts of Criminal Appeals, which are
experienced and trained in those functions. The CMCR, composed of
service appellate judges, provides the best mechanism for dealing with
these appellate review functions. The service appellate judges are
experienced by virtue of the fact that many have been trial judges with
fact finding authority; they have acquired more fact finding experience
as service appellate judges because of the unique Congressional
provisions for those courts. Only the best of this already select group
of judges are then nominated for the CMCR. Their staffs, both uniformed
and civilian, also have considerable experience analyzing and
processing hundreds of cases and applying fact finding analysis in all
of the cases, even guilty plea cases; the service appellate court
culture is replete with nearly 60 years of appellate factfinding
experience and precedent. The service appellate court caseloads,
affected by mandatory appeal considerations, generate more experience
for their participants than courts whose members accept a finite
caseload and have minimal, if any, experience with the fact finding
function. Appeal beyond the CMCR should also be preserved in the United
States Court of Appeals for the DC Circuit, an Article III appellate
court.
Mr. Marcus. Review in either the Court of Appeals for the DC
Circuit or the Court of Appeals for the Armed Forces is appropriate.
21. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should appellate
review at some level include both facts and law, as under the first
level of review of courts-martial?
Mr. Johnson. Yes. We concur with the expanded scope of appellate
review in section 1031, which includes review of factual as well as
legal matters.
Mr. Kris. Yes. We concur with the expanded scope of appellate
review in section 1031, which includes review of factual as well as
legal matters.
Admiral MacDonald. As I noted in my answer to question 20, I do
support review of both facts and law. Our military judges are well
versed in the practice, and I support using a review that mirrors that
found under the UCMJ to the maximum extent possible.
Admiral Hutson. Yes.
General Altenburg. Because the Commissions system is rooted in
military law and court-martial practice, the fact finding function of
the initial level appellate court represents uniformity with that
system. It works well in court martial practice; I see no reason to
change it for Commissions. I reiterate, however, that this court must
be composed of military appellate judges who are trained and
experienced in this unique appellate function.
Mr. Marcus. Yes--facts and law.
executive order on long-term detention
22. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, on June 27, 2009,
the Washington Post reported that the White House was considering
issuing an Executive order reasserting the President's authority to
incarcerate terrorism suspects indefinitely. In your opinion, does the
President currently have authority under the AUMF to hold terrorists,
including members of al Qaeda and the Taliban, until the end of
hostilities?
Mr. Johnson. As the President stated in his National Archives
address, there may ultimately be a category of Guantanamo detainees
``who cannot be prosecuted for past crimes,'' but ``who nonetheless
pose a threat to the security of the United States'' and ``in effect,
remain at war with the United States.'' For this category of people,
the President stated ``[w]e must have clear, defensible, and lawful
standards'' and ``a thorough process of periodic review, so that any
prolonged detention is carefully evaluated and justified.''
This President believes that, if any detention of this sort proves
necessary, the authority to detain must be rooted firmly in
authorization granted by Congress. This is why, on March 13, 2009, DOJ
refined the Government's definition of our authority to detain those at
Guantanamo Bay, from the ``enemy combatant'' definition used by the
prior administration to one that is tied to the AUMF passed by Congress
in 2001, as informed by the laws of war. Thus, with regard to the
current detainee population at Guantanamo, this administration relies
on authority provided by Congress as informed by the laws of war in
justifying to Federal courts in habeas corpus litigation the continued
detention of Guantanamo detainees.
Mr. Kris. As the President stated in his National Archives address,
there may ultimately be a category of Guantanamo detainees ``who cannot
be prosecuted for past crimes,'' but ``who nonetheless pose a threat to
the security of the United States'' and ``in effect, remain at war with
the United States.'' For this category of people, the President stated
``[w]e must have clear, defensible, and lawful standards'' and ``a
thorough process of periodic review, so that any prolonged detention is
carefully evaluated and justified.''
This President believes that, if any detention of this sort proves
necessary, the authority to detain must be rooted firmly in
authorization granted by Congress. This is why, on March 13, 2009, DOJ
refined the Government's definition of our authority to detain those at
Guantanamo Bay, from the ``enemy combatant'' definition used by the
prior administration to one that is tied to the AUMF passed by Congress
in 2001, as informed by the laws of war. Thus, with regard to the
current detainee population at Guantanamo, this administration relies
on authority provided by Congress as informed by the laws of war in
justifying to Federal courts in habeas corpus litigation the continued
detention of Guantanamo detainees.
Admiral MacDonald. Yes; under the laws of war, unprivileged enemy
belligerents can be detained for the duration of hostilities in a non-
international armed conflict. The Supreme Court has ruled that the
armed conflict with al Qa'ida is a non-international armed conflict, or
what is sometimes referred to as a Common Article III armed conflict.
The Court has also ruled that the President's authority under the AUMF
includes detention authority.
Admiral Hutson. I do not believe the AUMF gives him that authority
by its terms but he does have it under the Geneva Conventions and the
common law of armed conflict. However, his political, diplomatic,
practical and humanitarian power to do so may be significantly more
limited.
General Altenburg. Yes.
Mr. Marcus. Yes. The President has the authority to hold al Qaeda
and Taliban detainees until the end of hostilities. But given the
indefinite nature of this conflict, detainees should be tried for war
crimes or released if at all possible. There should be a more robust
and independent system for reviewing the status of those who continue
to be detained.
23. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, does the President's
authority to detain extend to other individuals or groups?
Mr. Johnson. Please see the answer to question 22. The
administration has adopted a detention standard for the detainees at
Guantanamo that is based on the AUMF, as informed by the law of war.
This standard reads as follows:
The President has the authority to detain persons that the
President determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, and
persons who harbored those responsible for those attacks. The
President also has the authority to detain persons who were
part of, or substantially supported, Taliban or al Qaeda forces
or associated forces that are engaged in hostilities against
the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.
Mr. Kris. Please see the answer to question 22. The administration
has adopted a detention standard for the detainees at Guantanamo that
is based on the AUMF, as informed by the law of war. This standard
reads as follows:
The President has the authority to detain persons that the
President determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, and
persons who harbored those responsible for those attacks. The
President also has the authority to detain persons who were
part of, or substantially supported, Taliban or al Qaeda forces
or associated forces that are engaged in hostilities against
the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.
Admiral MacDonald. On March 13, the administration submitted a
legal position on the authority under the AUMF to detain the persons
now held at Guantanamo Bay, and to date, the relevant Federal courts
have entered rulings supporting that position. I also support the March
13 position, which follows:
The President has the authority to detain persons that the
President determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, and
persons who harbored those responsible for those attacks. The
President also has the authority to detain persons who were
part of, or substantially supported, Taliban or al Qaeda forces
or associated forces that are engaged in hostilities against
the United States or its coalition partners, including any
person who has committed a belligerent act, or has directly
supported hostilities, in aid of such enemy armed forces.
Admiral Hutson. It extends to anyone who is engaged in a war (as
opposed to criminal activity) against the U.S.
General Altenburg. International law and the Geneva Conventions
provide that enemy combatants, both lawful and unlawful, may be
detained until the end of hostilities.
Mr. Marcus. The changing nature of al Qaeda and affiliated
terrorist groups makes this a difficult question to answer. But the
AUMF should not be construed to authorize detention of individuals who
are members of groups not clearly and closely affiliated with al Qaeda
or the Taliban.
24. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, during his May
speech at the National Archives, President Obama indicated his intent
to seek authorization from Congress and provide for judicial review of
long-term detention of terrorists who could not be tried, but were too
dangerous to release. How could President Obama achieve those
objectives if he issues an Executive order?
Mr. Johnson. Congress has already provided authorization through
the AUMF to detain persons who the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, persons who harbored those responsible for those
attacks, and persons who were part of, or substantially supported,
Taliban or al Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition partners. Habeas
courts are actively reviewing the government's detention decisions. The
administration is not currently seeking additional authorization.
Mr. Kris. Congress has already provided authorization through the
AUMF to detain persons who the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, persons who harbored those responsible for those
attacks, and persons who were part of, or substantially supported,
Taliban or al Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition partners. Habeas
courts are actively reviewing the government's detention decisions. The
administration is not currently seeking additional authorization.
Admiral MacDonald. I must respectfully defer to the administration
on this question; however, I would note that in my view the President
already has authority under the laws of war and the AUMF to detain
members of al Qaeda, Taliban, and associated forces and others as
described in the March 13 position (see previous answer), for the
duration of hostilities. In this regard, I would like to emphasize that
the armed conflict confronting us was not of our choosing and the
duration of hostilities will depend in large measure on the actions of
the enemy.
Admiral Hutson. If that power is authorized, it is better to come
from Congress than from an Executive order.
General Altenburg. By expanding the role of military judges to
include this function, but any expansion of Federal judicial
jurisdiction would, in my opinion, require congressional authorization.
Mr. Marcus. While the President could issue an executive order on
detention, consistent with the AUMF, it seems to me that he would need
legislation to establish a judicial review mechanism. I also think that
it would be desirable to have Congress authorize any longer-term
detention system.
sorting cases for trial
25. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, how would you
propose sorting cases that should be tried in Article III Federal
courts from those that should be tried before a military commission?
Mr. Johnson. DOJ and DOD have agreed upon a protocol for evaluating
whether detainees at Guantanamo Bay who may be prosecuted should be
prosecuted in an Article III civilian court or by military commission.
That protocol is attached (see Annex A).
Mr. Kris. DOJ and DOD have agreed upon a protocol for evaluating
whether detainees at Guantanamo Bay who may be prosecuted should be
prosecuted in an Article III civilian court or by military commission.
That protocol is attached (see Annex A).
Admiral MacDonald. There may be individual instances where a
determination may be warranted to criminally prosecute a case in an
Article III court, depending on factors such as the citizenship of the
accused, the location of the offense, the status of the victims, or the
particularities of the crime. Ultimately, it is a policy determination
as to whether the Nation chooses to pursue a case in one forum or
another. No matter whether or how that determination is made, however,
I think it is important that the system for military commissions this
country establishes is fair, and that our confidence in the fairness
and legality of their rules and procedures is so high that we are able
to accept trial of our own servicemembers before similar tribunals for
allegations of war crimes brought by another country.
Admiral Hutson. I would try all the cases in Article III courts.
These are the courts with the unimpeachable credibility and vast
experience to do it well. They have proven success and military
commissions have demonstrated failure.
General Altenburg. Those cases whose core facts more reasonably are
rooted in law of war violations should be tried by Military Commission;
those which are more reasonably rooted in criminal violations should be
tried by Article III courts. This is, however, not the most workable
distinction to make, because most offenses can be characterized as
violations of the law of war or as conventional crimes (consider, e.g.,
Lockerbie, indisputably the war crime of murdering innocent civilians,
but also an extra-territorial murder prosecutable under the U.S. Code).
Employing military commissions, then, fulfills a strategic purpose that
transcends the elements of a crime, because it is a singularly
appropriate, specialized forum in which we have tried war crimes since
George Washington commanded our forces. It can accommodate, within the
context of a contested criminal proceeding, the unique demands of
national security, personal security, evidence gathering, and
intelligence. Under no circumstances should Military Commissions be
reserved for cases where the evidence would not support findings beyond
a reasonable doubt; such a distinction would invalidate the legitimacy
of the Commissions process.
Mr. Marcus. One or the other forum--military commissions or Federal
courts--may be the more desirable depending on the facts and litigation
problems of particular cases. I think some categories of cases should
be tried in Federal courts--e.g., those against detainees (such as
Padilla or al-Marri) who were captured or arrested while lawfully in
the United States, and those against detainees who committed crimes
that occurred before, and were unrelated to, the September 11 attacks.
Military commissions should only be used for September 11-related or
post-September 11 war crimes.
26. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, if a terrorist
attack on civilians is a war crime, why shouldn't all trials be by
military commission?
Mr. Johnson. The administration believes that reformed military
commissions are appropriate for trying our enemies for war crimes--with
a long tradition dating back to the Revolutionary War. That does not
mean, however, that we should ignore other available means to fight our
enemy--including intelligence gathering, diplomacy, and traditional law
enforcement, including prosecution in Federal court. The same conduct
that constitutes a war crime may also constitute an offense under our
criminal code. We need to use all elements of national power to combat
terrorism, including all legitimate means to prosecute terrorists.
Military commissions are one important option among many. So are
Federal courts.
Mr. Kris. The administration believes that reformed military
commissions are appropriate for trying our enemies for war crimes--with
a long tradition dating back to the Revolutionary War. That does not
mean, however, that we should ignore other available means to fight our
enemy--including intelligence gathering, diplomacy, and traditional law
enforcement, including prosecution in Federal court. The same conduct
that constitutes a war crime may also constitute an offense under our
criminal code. We need to use all elements of national power to combat
terrorism, including all legitimate means to prosecute terrorists.
Military commissions are one important option among many. So are
Federal courts.
Admiral MacDonald. As I said in question 25, it is a policy
determination as to whether the Nation chooses to pursue a case in one
forum or another. So long as the military commissions are fair, and we
are able to accept trial of our own servicemembers before similar
tribunals for allegations of war crimes brought by another country, I
believe trial by military commission is appropriate.
Admiral Hutson. Because at its core, it is a crime. We don't ask
DOJ to fight our wars; we shouldn't ask DOD to prosecute our criminal
cases.
General Altenburg. If your premise is that all terrorist attacks on
civilians are war crimes, then certainly all such trials could be by
military commission. This is not the case, however, as they are not
necessarily violations of the law of war, and the UCMJ limits the use
of military commissions to violations of the law of war. Moreover, the
Supreme Court made clear in its Civil War-era cases that commissions
could not be used to enforce domestic law against U.S. citizens when
the courts are open and operating--a principle that is not applicable
when U.S. citizens are tried for war crimes violations. Domestic
terrorists such as Timothy McVeigh, Theodore Kaczynski, and Eric
Rudolph carried out terrorist attacks on civilians to bring attention
to their political agendas, but were U.S. citizens whose cases were
properly handled as conventional criminal cases.
Mr. Marcus. I am uncomfortable with the notion of a permanent ``war
on terrorism.'' I think it is more consistent with our own systems of
civilian and military justice, as well as international law, to limit
the use of military commissions to war crimes committed during an
actual armed conflict.
27. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, doesn't use of
different forums open the door for criticism that the United States is
going back to a law enforcement focus on terrorism, or that military
commissions are only for cases that can't be successfully tried in
Article III courts and therefore amount to ``second-class justice?''
Mr. Johnson. This administration is committed to using all
instruments of national power to defeat terrorist extremists. This
includes, but is not limited to, the prosecution of some terrorists in
Article III courts. As the President said in his May 21 National
Archives speech, we are at war against al Qaeda, and military
commissions have a long history in the United States dating back to
George Washington and the Revolutionary War. They are an appropriate
venue for trying detainees for violations of the laws of war, and we
believe that some detainees should be prosecuted in the law-of-war
context. Military commissions are not ``second-class justice.'' The
differences between the rules and procedures in Article III courts and
military commissions are designed to account for the different issues
attendant to prosecuting law of war violations. These rules are
different; they are not ``second-class.'' We believe that section 1031
of the 2010 NDAA passed by the Senate on July 23 is an important step
toward additional reforms that are needed.
Mr. Kris. This administration is committed to using all instruments
of national power to defeat terrorist extremists. This includes, but is
not limited to, the prosecution of some terrorists in Article III
courts. As the President said in his May 21 National Archives speech,
we are at war against al Qaeda, and military commissions have a long
history in the United States dating back to George Washington and the
Revolutionary War. They are an appropriate venue for trying detainees
for violations of the laws of war, and we believe that some detainees
should be prosecuted in the law-of-war context. Military commissions
are not ``second-class justice.'' The differences between the rules and
procedures in Article III courts and military commissions are designed
to account for the different issues attendant to prosecuting law of war
violations. These rules are different; they are not ``second-class.''
We believe that section 1031 of the 2010 NDAA passed by the Senate on
July 23 is an important step toward additional reforms that are needed.
Admiral MacDonald. Domestically, individual States, DOJ, and the
military often have overlapping jurisdiction, and determinations are
made in individual cases as to which sovereign and which forum is
appropriate. Rules, criminal statutes, and potential penalties vary
between the jurisdictions, but all forums are considered ``fair.''
Federal criminal disposition is often sought in some jurisdictions
precisely because Federal statutes carry with them mandatory minimum
sentences that are unavailable in state tribunals.
In individual cases, different forums may be appropriate for
different cases. So long as the military commissions are fair, and we
are able to accept trial of our own servicemembers before similar
tribunals, trial by military commission is appropriate, and military
commissions should not be viewed as ``second-class justice.''
Admiral Hutson. Precisely so.
General Altenburg. Yes, but only one would have any credibility to
it. The issue of ``going back to a law enforcement focus'' suggests a
binary choice which has long been discredited by most serious
participants in this debate. The fight against al Qaeda in particular
and terrorism in general certainly has a law enforcement component--
witness the extraordinary work of the FBI among many other
manifestations; it simply is not exclusively a law enforcement
function. The danger of suggesting that commissions are a forum for
second-class justice warrants the sober attention of law makers.
Commissions long have functioned supplementary to the conventional
court system because of the unique functions and features of this
forum. A selection process that suggests that commissions are only
employed for cases ``too weak'' for Article III courts will damage the
functioning, credibility, and future use of this long-validated forum
for bringing justice. Such inevitable criticisms can be alleviated by
(1) referring only those cases strongly rooted in law of war violations
to Military Commissions and (2) allowing a number of Military
Commissions to complete their process without interruption so that the
public has an opportunity to observe the military justice system at
work. All facets of the Office of Military Commissions--the
Prosecution, Defense, Judiciary, and Administrators--are staffed with
talented, experienced professionals fiercely dedicated to producing
full and fair trials. They deserve the opportunity to complete their
mission.
Mr. Marcus. No. Our military commission procedures, if improved as
the Committee proposes, are not ``second-class justice''; indeed, they
would provide defendants with more procedural rights and protections
than are available in the regular criminal justice systems of most
other countries. If we candidly articulate the reasons why some cases
are brought in Federal courts and others in military commissions, we
should be able to rebut any allegations of this kind.
detainee trials in the united states
28. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what are the
advantages and disadvantages of holding trials in the United States?
Mr. Johnson. Holding trials in the United States makes it possible
to employ Federal courts, in addition to military commissions, to try
those detainees who have committed Federal crimes. Federal courts have,
on many occasions, proven to be an effective tool in our efforts to
combat international terrorism, and the President has made clear that
both Federal courts and military commissions should be available for
this purpose.
With regard to military commissions, it is not clear that moving
them to the United States would have a significant impact on how they
function as a legal matter, as basic due process protections may apply
irrespective of the location of the commissions. Our goal is to create
a military commissions system that is fair, effective, and legal, and
that will survive appellate review, regardless of where the trials take
place.
Mr. Kris. Holding trials in the United States makes it possible to
employ Federal courts, in addition to military commissions, to try
those detainees who have committed Federal crimes. Federal courts have,
on many occasions, proven to be an effective tool in our efforts to
combat international terrorism, and the President has made clear that
both Federal courts and military commissions should be available for
this purpose.
With regard to military commissions, it is not clear that moving
them to the United States would have a significant impact on how they
function as a legal matter, as basic due process protections may apply
irrespective of the location of the commissions. Our goal is to create
a military commissions system that is fair, effective, and legal, and
that will survive appellate review, regardless of where the trials take
place.
Admiral MacDonald. My personal, professional opinion is that there
would be no substantive legal differences between Military Commissions
conducted inside the United States or in their current venue.
Admiral Hutson. I can't think of any disadvantages, other than
perhaps access to witnesses. The primary advantages are that this is
where the courts are and Americans are victims of the crimes.
General Altenburg. There are few, if any, advantages. Any site
chosen to house prisoners pending Military Commission proceedings is
likely to be in an isolated location more difficult to access than the
relatively simple 3 hour flight from DC to Guantanamo. Disadvantages
include increased likelihood that local Federal courts would interject
themselves into the detention process and provide a venue for
potentially frivolous litigation as the Military Commissions cases move
forward, a greatly increased security risk, especially when detainees
are being transported to and from the detention location; the cost
would be considerable to recreate the detention and trial facilities
which already exist at Guantanamo.
Mr. Marcus. The advantages of holding military commission trials in
the United States, rather than at GTMO, are substantial: First, we
would no longer have to detain enemy combatants at GTMO, thus avoiding
the international stigma that has arisen from the earlier problems
there and that cannot be totally dissipated. Second, the logistics of
trying cases in GTMO are daunting, particularly the problems of travel
to GTMO and providing effective counsel to defendants. We will have a
much easier time convincing the world of the fairness of our trials if
they are held in the United States.
29. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, would bringing the
detainees into the United States for trial give them additional
constitutional rights, such as the 5th Amendment due process concerns
that recent media reports indicate were raised by the Office of Legal
Counsel in May?
Mr. Johnson. See our answer to question 17. We believe that,
whether military commissions are convened in the United States or at
Guantanamo, there is a significant risk, in light of the circumstances
of the Guantanamo detainees, that courts will apply a baseline of due
process protection in commission proceedings. This does not mean that
courts will provide commission defendants with the same array of
constitutional rights that defendants receive in Article III criminal
trials. We do believe, however, that there is a significant risk courts
would afford commission defendants with those due process protections
that are ``so rooted in the traditions and conscience of our people as
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97,
105 (1934), regardless of whether commission proceedings are held at
Guantanamo Bay or in the United States. It is not clear that moving
commission trials to the United States would have a significant impact
on how they function as a legal matter, as basic due process
protections may apply irrespective of their location.
Mr. Kris. See our answer to question 17. We believe that, whether
military commissions are convened in the United States or at
Guantanamo, there is a significant risk, in light of the circumstances
of the Guantanamo detainees, that courts will apply a baseline of due
process protection in commission proceedings. This does not mean that
courts will provide commission defendants with the same array of
constitutional rights that defendants receive in Article III criminal
trials. We do believe, however, that there is a significant risk courts
would afford commission defendants with those due process protections
that are ``so rooted in the traditions and conscience of our people as
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97,
105 (1934), regardless of whether commission proceedings are held at
Guantanamo Bay or in the United States. It is not clear that moving
commission trials to the United States would have a significant impact
on how they function as a legal matter, as basic due process
protections may apply irrespective of their location.
Admiral MacDonald. I am not aware of legal precedent, on point, for
the proposition that the due process clause of the fifth amendment
would apply to a prosecution of an alien unprivileged enemy belligerent
before a Military Commission, whether convened within the United States
or abroad.
Admiral Hutson. I believe the key to constitutional rights follows
the courts and the nationality of the accused, not the location of the
piece of ground upon which the court is situated. If we hold the courts
out of CONUS just to avoid providing certain protections, the court is
doomed to failure anyway.
General Altenburg. Perhaps. Obviously no one knows this for sure,
because no one can project with certainty the continued development of
the line of cases that includes but predates Quirin but also includes
Boumediene, which purports not to overturn Quirin or Eisentrager, but
substantially weakens both of those precedents. Bringing the detainees
to the United States presents new opportunities for innovative defense
counsel and guarantees protracted litigation.
Mr. Marcus. I have not seen the OLC opinion. But my own view is
that, while the issue of the constitutional due process rights of
detainees in trials conducted at GTMO has not been ruled on by the
courts, at the end of the day there are not likely to be significant
differences between the constitutional rights that would apply at GTMO
as opposed to the United States.
30. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what happens to
detainees who are found not guilty at trial?
Mr. Johnson. As a matter of legal authority, the question of guilt
or innocence in a criminal prosecution is separate from the authority
to detain under the law of war. However, relying on law of war
authority to detain an individual in the current conflict after he has
been acquitted in Federal court or in a military commission raises
serious policy questions that we are continuing to consider. We note
that, in the last administration, two of the individuals who were tried
by military commission and received short sentences were returned to
their home countries post-conviction and later released. We believe
that this option would be appropriate for detainees who are acquitted
at trial, where consistent with national security and the interests of
justice.
Mr. Kris. As a matter of legal authority, the question of guilt or
innocence in a criminal prosecution is separate from the authority to
detain under the law of war. However, relying on law of war authority
to detain an individual in the current conflict after he has been
acquitted in Federal court or in a military commission raises serious
policy questions that we are continuing to consider. We note that, in
the last administration, two of the individuals who were tried by
military commission and received short sentences were returned to their
home countries post-conviction and later released. We believe that this
option would be appropriate for detainees who are acquitted at trial,
where consistent with national security and the interests of justice.
Admiral MacDonald. Each case would have to be dealt with based on
its own facts and circumstances. As a practical matter, a detainee
acquitted before a Military Commission would continue to be held in
detention under the laws of war and the Authorization to Use Military
Force, until released by order of the executive or his duly authorized
subordinate. The Executive's order could be issued independently or in
execution of a decision from a Federal court pursuant to a writ of
habeas corpus. But the overarching point is that an acquittal does not,
ipso facto, result in release if hostilities are still ongoing.
Admiral Hutson. They are legally not guilty of the crime(s) for
which they were prosecuted. Whether they continue to be incarcerated
would depend on other findings. ``Not guilty'' does not necessarily
mean ``innocent'' although it may.
General Altenburg. They might be transferred to the home country or
another nation. They could be considered for inclusion in the group of
detainees too dangerous to release. They remain eligible under the law
of war to be detained as enemy combatants until the end of hostilities.
If tried in Article III courts, they might then fall into the category
of persons who revert to indefinite INS detention because they cannot
be released to any other country; this would be similar to individuals
who arrived in the USA during the Mariel Boat Lift.
Mr. Marcus. Theoretically, detainee combatants who are found not
guilty at trial could continue to be detained until the end of the
armed conflict. This would clearly be undesirable in most cases. But
they would not in any event be entitled to release in the United
States. As far as I know, none of the GTMO detainees are lawful
residents of the United States, and they could therefore be detained as
unlawful immigrants and deported.
31. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, does a not guilty
verdict at a trial conducted in the United States increase the chances
that a detainee would be ordered released into the United States?
Mr. Johnson. See the answer to question 2. As the President has
stated, this administration will not choose to release any detainee
into the United States who will endanger the American people. As noted
in the answer to question 30, in the event a detainee is acquitted, it
may be appropriate to transfer the detainee to his home country or a
third country, where consistent with national security and applicable
laws.
Mr. Kris. See the answer to question 2. As the President has
stated, this administration will not choose to release any detainee
into the United States who will endanger the American people. As noted
in the answer to question 30, in the event a detainee is acquitted, it
may be appropriate to transfer the detainee to his home country or a
third country, where consistent with national security and applicable
laws.
Admiral MacDonald. In my opinion it would not. The detainees at
Guantanamo already have full access to habeas review in Federal courts
under the Boumediene decision, and I am unaware of legal precedent for
the proposition that they would be more likely to be ordered released
pursuant to a habeas review if they were acquitted at a Military
Commission held in the United States as opposed to the existing venue.
Admiral Hutson. I don't believe so. The person, if released, should
still be repatriated.
General Altenburg. Yes.
Mr. Marcus. No. See answer to question 30.
post-trial detention
32. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, where should
detainees who are convicted be incarcerated?
Mr. Johnson. We are currently examining a number of different
options for housing detainees. We can assure you that we will not move
any detainees into the United States unless and until we are convinced
that they will be held safely and securely in a facility or facilities
that satisfy all of our security concerns and meet our legal
obligations regarding treatment of the detainees.
Mr. Kris. We are currently examining a number of different options
for housing detainees. We can assure you that we will not move any
detainees into the United States unless and until we are convinced that
they will be held safely and securely in a facility or facilities that
satisfy all of our security concerns and meet our legal obligations
regarding treatment of the detainees.
Admiral MacDonald. I believe this question is being considered by
the detention policy task force established by the President, and it
would not be appropriate for me to offer my personal opinion at this
juncture.
Admiral Hutson. Either in the United States or in a U.S. run prison
in their country of origin.
General Altenburg. Wherever they can be efficiently housed and
secured without any chance of escape. Many facilities, including
Guantanamo, provide such security. In fact, other than its reputation
in some quarters, Guantanamo today is a model prison facility, as
observed by the Attorney General after his visit to Guantanamo in
January.
Mr. Marcus. Those convicted by military commissions should be
incarcerated in a high-security military prison in the United States or
a high-security Federal prison. Those convicted in Federal courts
should be detained in a high-security Federal prison.
detention review process
33. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, what sort of system
of review should apply to those detainees who we cannot try, but who
are too dangerous to release?
Mr. Johnson. See the answers to questions 2 and 22. As the
President stated in his May 21 speech at the National Archives, for any
detainees that may fall into this category, we will have ``a thorough
process of periodic review, so that any prolonged detention is
carefully evaluated and justified.'' We are currently in the process of
determining the precise details of the periodic reviews.
Mr. Kris. See the answers to questions 2 and 22. As the President
stated in his May 21 speech at the National Archives, for any detainees
that may fall into this category, we will have ``a thorough process of
periodic review, so that any prolonged detention is carefully evaluated
and justified.'' We are currently in the process of determining the
precise details of the periodic reviews.
Admiral MacDonald. Like the previous question, I believe this
subject is being considered by the detention policy task force and I
would not want to offer a personal opinion.
However, as I answered in an earlier question, I believe the
President has authority to detain unprivileged belligerents for the
duration of hostilities. I also accept, as a general matter, that in a
common Article III armed conflict, as the duration of hostilities and
length of detention extend over years, the humane treatment obligations
require greater levels of review, and additional accommodations must be
made in the conditions of detention. In this regard, I support the
findings and recommendation made in the Walsh report.
Admiral Hutson. I am not convinced that such persons exist,
although I realize that may be true. If they do, it should be a
periodic, independent review.
General Altenburg. A review tribunal similar to the CSRTs, with the
decision ultimately made by the Secretary of Defense in consultation
with the Attorney General.
Mr. Marcus. The current CSRT review system is inadequate. Given the
length of detention, we need a more independent system of regular
reviews, focusing on continuing dangerousness, and with a presumption
in favor of release after a specified period of time (say 10 or 15
years) has elapsed. I would favor annual review hearings conducted by a
Federal court or some new independent body, with a right to military
and civilian counsel for the detainee.
34. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should military
judges and lawyers be provided to the detainee for a parole board on a
periodic basis?
Mr. Johnson. See the answer to question 33. For any detainees that
fall into this category the President has committed to ``a thorough
process of periodic review, so that any prolonged detention is
carefully evaluated and justified.'' We are currently in the process of
determining the precise details of the periodic reviews.
Mr. Kris. See the answer to question 33. For any detainees that
fall into this category the President has committed to ``a thorough
process of periodic review, so that any prolonged detention is
carefully evaluated and justified.'' We are currently in the process of
determining the precise detaiIs of the periodic reviews.
Admiral MacDonald. This question also goes to a matter that is now
under review by the detainee policy task force. I can't comment on the
concept of parole boards, but as I noted in the last question, I do
believe that as the length of detention extends over a period of years,
our obligations to ensure humane treatment under common Article III
include making additional accommodations in the conditions of detention
and in the review process.
Admiral Hutson. Parole boards for convicted detainees should be
conducted like any other Federal parole board.
General Altenburg. For periodic review of indefinite detention,
attorneys should be provided, but never judges. For those convicted by
the Military Commissions, parole should not be available to shorten an
imposed sentence. This is consistent with Federal practice which has
abolished parole. Seeking Presidential clemency could be a possible
course of action.
Mr. Marcus. Yes.
35. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, who should get this
special long-term detention review process? Those detainees at
Guantanamo? Those at Bagram captured off the battlefield? All detainees
held long-term?
Mr. Johnson. See the answers to questions 2, 22, and 33. As the
President has stated, any Guantanamo detainees who continue to be
detained, where authorized by Congress and consistent with the law of
war, will be afforded periodic reviews, so that any prolonged detention
can be carefully evaluated and justified. New review procedures are
also being put in place at the Bagram Theater Internment Facility,
under which detainees held there will be provided biannual review of
their detention.
Mr. Kris. See the answers to questions 2, 22, and 33. As the
President has stated, any Guantanamo detainees who continue to be
detained, where authorized by Congress and consistent with the law of
war, will be afforded periodic reviews, so that any prolonged detention
can be carefully evaluated and justified. New review procedures are
also being put in place at the Bagram Theater Internment Facility,
under which detainees held there will be provided biannual review of
their detention.
Admiral MacDonald. This question is also under review by the
administration. As I answered earlier, under the laws of war,
unprivileged enemy belligerents may be detained for the duration of
hostilities. I also believe that the obligation under the laws of war
to treat detainees humanely includes a requirement to make additional
accommodations in the conditions of detention and in the review
process, as detention extends over a period of many years. In this
regard I support the findings and recommendations in the Walsh report.
Admiral Hutson. All detainees held long term. Again, location
should not be determinative.
General Altenburg. All detainees held long term. No system which
allows the government to avoid detention review by simply moving the
prisoner to a different location should be accepted as legitimate.
Mr. Marcus. I would favor this beefed-up review process for all
GTMO detainees who continue to be detained and for all non-battlefield
detainees at Bagram.
36. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should detainees who
were captured off the battlefield, but held at Bagram or other
battlefield internment facilities, ever be granted the right to an
Article III court review of their detention?
Mr. Johnson. As we have argued in Maqaleh v. Gates, we do not
believe that habeas rights extend to detainees captured outside of
Afghanistan and transferred to Bagram for detention. Judicial review of
detention on the battlefield in a theater of active military operations
overseas raises significant operational concerns that are not present
with respect to review of detention at Guantanamo Bay.
Mr. Kris. As we have argued in Maqaleh v. Gates, we do not believe
that habeas rights extend to detainees captured outside of Afghanistan
and transferred to Bagram for detention. Judicial review of detention
on the battlefield in a theater of active military operations overseas
raises significant operational concerns that are not present with
respect to review of detention at Guantanamo Bay.
Admiral MacDonald. This question is now being litigated in Federal
court in the Malaqeh v. Gates case, and I cannot comment.
Admiral Hutson. Yes, unless we can devise a better system that the
sham CSRTs have proven to be.
General Altenburg. This result is likely unless Congress acts to
provide for administrative review of long-term detentions in all
overseas facilities.
Mr. Marcus. At least one District Judge, John Bates, has held that
habeas review in Article III courts is available to such detainees.
While the D.C. Circuit and the Supreme Court have not addressed this
question, I agree with Judge Bates's opinion.
habeas corpus review
37. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should a National
Security Court be created to hear habeas corpus petitions or appeals of
long-term detention?
Mr. Johnson. Almost all of the Guantanamo detainees now have
pending habeas cases in Federal court. We believe that this review is
rigorous, independent, and effective as a means of establishing the
lawfulness of the detentions, and that it should continue without any
effort to evade or displace such review. We have not identified a need
for a new National Security Court.
Mr. Kris. Almost all of the Guantanamo detainees now have pending
habeas cases in Federal court. We believe that this review is rigorous,
independent, and effective as a means of establishing the lawfulness of
the detentions, and that it should continue without any effort to evade
or displace such review. We have not identified a need for a new
National Security Court.
Admiral MacDonald. I do not think such a court is necessary, and I
note that all of the Guantanamo detainees already have habeas cases in
Federal court, thus their long-term detention is already receiving
judicial review.
Admiral Hutson. No, I am not in favor of creating new courts.
Existing courts are more than adequate and certainly better than a
newly created court. All these are simply schemes to avoid ``real''
courts which have a proven record over the years of fairness with many,
many successful prosecutions.
General Altenburg. There is merit in the concept of designating a
particular court to hear FISA requests and try terrorism cases; it can
build specific facilities and provide trained judges for these types of
cases. The creation of such a legal system will take many years and
likely create substantial litigation, as illustrated by the time and
litigation generated in the creation of the military commission legal
system.
Mr. Marcus. No. While there are some good arguments for a National
Security Court, there are strong arguments against it, and the District
Court for the District of Columbia is in effect becoming a specialized
(and effective) national security court through its handling of the
habeas cases.
38. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, should Congress
create uniform rules and procedures for conducting habeas corpus review
for detainees?
Mr. Johnson. Habeas corpus review of Guantanamo detentions is
rigorous, independent, and effective as a means of establishing the
lawfulness of the detentions. The cases are proceeding before judges in
the District Court of the District of Columbia under a case management
order, and many issues are being coordinated by the judges. We think
this review should be allowed to continue, without any effort to evade
or displace such review. We expect that any legislation adopted by
Congress to regulate habeas corpus review of Guantanamo detentions for
existing cases would result in delays in resolving these cases and
litigation over the proper interpretation, and perhaps the
constitutionality, of any rules and procedures adopted.
Mr. Kris. Habeas corpus review of Guantanamo detentions is
rigorous, independent, and effective as a means of establishing the
lawfulness of the detentions. The cases are proceeding before judges in
the District Court of the District of Columbia under a case management
order, and many issues are being coordinated by the judges. We think
this review should be allowed to continue, without any effort to evade
or displace such review. We expect that any legislation adopted by
Congress to regulate habeas corpus review of Guantanamo detentions for
existing cases would result in delays in resolving these cases and
litigation over the proper interpretation, and perhaps the
constitutionality, of any rules and procedures adopted.
Admiral MacDonald. It would be beneficial to have clear, uniform
standards of review and procedure, and application of the laws of war
as the substantive body of law controlling habeas decisions. The post-
Boumediene decisions within the U.S. District Court for the District of
Columbia and the U.S. Court of Appeals for the D.C. Circuit have been
encouraging on this point, and thus it may be unnecessary for Congress
to intervene.
Admiral Hutson. No.
General Altenburg. Yes.
Mr. Marcus. The District Court for the District of Columbia is
doing a good job of developing effective and fair procedures. While
there are some differences among the judges of that Court, they are not
significant and they will be minimized over time as appeals are taken
to the D.C. Circuit. Congress should watch these developments closely
to see if legislation establishing uniform procedures is necessary or
desirable.
39. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, if Congress did
enact such rules and procedures, what would happen to the existing
assignment of habeas cases and the case management orders currently
governing those hearings?
Mr. Johnson. The effect on existing cases of any legislation
adopted by Congress to regulate habeas corpus review of Guantanamo
detentions would depend on what rules and procedures were enacted. At a
minimum, we expect such legislation would result in delays in resolving
these cases and litigation over the proper interpretation of, and
perhaps the constitutionality, of any rules and procedures adopted.
Mr. Kris. The effect on existing cases of any legislation adopted
by Congress to regulate habeas corpus review of Guantanamo detentions
would depend on what rules and procedures were enacted. At a minimum,
we expect such legislation would result in delays in resolving these
cases and litigation over the proper interpretation of, and perhaps the
constitutionality, of any rules and procedures adopted.
Admiral MacDonald. Because the effect of legislation to regulate
habeas corpus review would depend on the exact rules and procedures
enacted, it is impossible to predict what would happen to existing
cases. Legislative changes could result in delays as courts are asked
to review and interpret any new rules and procedures.
Admiral Hutson. I don't know.
General Altenburg. Congress should address this issue directly in
enacting rules and procedures.
Mr. Marcus. If Congress legislated in this area, the courts would
be bound except to the extent that they determined that the legislated
rules and procedures were unconstitutional.
40. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, how does habeas
corpus fit with a system of long-term detention review?
Mr. Johnson. Habeas corpus review is playing an important role in
ensuring that Guantanamo detention decisions are lawful. As the
President has stated, prolonged detention of these individuals should
not be the decision of any one person. Habeas review for Guantanamo
detainees helps establish the lawfulness of our detention decisions and
ensure that we can justify to an independent branch of government our
decisions about who can be detained. The administration believes that
habeas review of the Guantanamo detentions should continue, without any
effort to evade or displace that review.
Mr. Kris. Habeas corpus review is playing an important role in
ensuring that Guantanamo detention decisions are lawful. As the
President has stated, prolonged detention of these individuals should
not be the decision of any one person. Habeas review for Guantanamo
detainees helps establish the lawfulness of our detention decisions and
ensure that we can justify to an independent branch of government our
decisions about who can be detained. The administration believes that
habeas review of the Guantanamo detentions should continue, without any
effort to evade or displace that review.
Admiral MacDonald. Habeas reviews of Guantanamo detainees following
the Boumediene decision have applied the laws of war as the substantive
body of law controlling the lawfulness of detention. I believe the
courts are correct in so applying the laws of war. While this has
worked well, so far, in the Guantanamo cases, I do not believe habeas
should apply to detentions in areas of active hostilities.
Admiral Hutson. Probably so.
General Altenburg. Long-term detention of those individuals who are
not tried by Article III courts or military commissions should require
regular periodic reviews of the basis for their continued detention.
Obviously, prisoners will challenge such review through the habeas
process; this underscores the importance of providing periodic reviews
which will stand up to such scrutiny by the district courts.
Mr. Marcus. Habeas corpus would still be an important avenue for
the courts to determine whether initial and continued detention was
lawful. Improved procedures for making those determinations by the
military should, over time, reduce the habeas burden on the Government
and the courts.
41. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, is habeas a separate
process or should successive habeas petitions by detainees serve as
independent court review of long-term detention?
Mr. Johnson. See the answer to question 40. Habeas corpus review is
playing an important role in ensuring that Guantanamo detention
decisions are lawful. Even after a habeas court has upheld the
lawfulness of detention, the detainee will be afforded periodic
administrative reviews, so that any prolonged detention will be
carefully evaluated and justified.
Mr. Kris. See the answer to question 40. Habeas corpus review is
playing an important role in ensuring that Guantanamo detention
decisions are lawful. Even after a habeas court has upheld the
lawfulness of detention, the detainee will be afforded periodic
administrative reviews, so that any prolonged detention will be
carefully evaluated and justified.
Admiral MacDonald. In my view, habeas should be a separate process,
focused on whether the Executive's detention of a particular detainee-
petitioner complies with the laws of war.
Admiral Hutson. I'm sorry, but I'm not sure I understand the
question adequately to intelligently answer.
General Altenburg. Habeas is a separate civil proceeding with a
specific statutory role in our criminal justice system. It should
remain separate from the development of a systemic review of long-term
detention.
Mr. Marcus. If Congress establishes an adequate process for direct
review of long-term detention decisions, or provides for those
decisions to be made by a Federal court, there should be no need for
separate habeas proceedings.
return to the fight
42. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, how can we best
ensure that those detainees who are released to another country don't
return to the fight?
Mr. Johnson. The United States Government employs a number of
methods to help prevent former detainees from returning to the fight.
When we transfer a detainee from Guantanamo we seek any necessary
security assurances from the receiving country to mitigate possible
threats posed by the transferred detainee. Part of our assessment in
transferring a detainee to another country is whether a country will
issue such security assurances and whether that country has the
capability of fulfilling those assurances. In addition, the United
States has transferred detainees to countries that have used
rehabilitation programs to help mitigate the risk of returning to the
fight. The United States also continues to work with our allies and
partners to share intelligence, conduct cooperative security
operations, and collect biometrics to prevent re-entry into the United
States.
Mr. Kris. The United States Government employs a number of methods
to help prevent former detainees from returning to the fight. When we
transfer a detainee from Guantanamo we seek any necessary security
assurances from the receiving country to mitigate possible threats
posed by the transferred detainee. Part of our assessment in
transferring a detainee to another country is whether a country will
issue such security assurances and whether that country has the
capability of fulfilling those assurances. In addition, the United
States has transferred detainees to countries that have used
rehabilitation programs to help mitigate the risk of returning to the
fight. The United States also continues to work with our allies and
partners to share intelligence, conduct cooperative security
operations, and collect biometrics to prevent re-entry into the United
States.
Admiral MacDonald. Each case must be assessed individually and risk
mitigation plans tailored accordingly. As a general matter, the
executive branch seeks to receive security assurances from the
receiving State and, in appropriate cases, assurances that
rehabilitation programs will be employed.
Admiral Hutson. We can never guarantee that but we can best ensure
it by providing fair trials and rehabilitation during incarceration.
Warehousing people and trying them in sham trials will ensure they do
return to the fight, or even engage in it for the first time.
General Altenburg. Release only to nations we trust to monitor
them.
Mr. Marcus. This is a question best addressed to the administration
witnesses. The best guarantee is effective agreements with foreign
countries for rehabilitation and monitoring of former detainees.
closing guantanamo
43. Senator McCain. Mr. Johnson, Mr. Kris, Admiral MacDonald,
Admiral Hutson, General Altenburg, and Mr. Marcus, if all the detainees
cannot be tried or repatriated to another country by January 2010, what
should we do about closing Guantanamo?
Mr. Johnson. As the President has stated, rather than keeping us
safe, the prison at Guantanamo Bay has weakened our national security
by serving as a rallying cry for our enemies and reducing the
willingness of our allies to work with us in fighting an enemy that
operates in multiple countries. A bipartisan group of current and
former senior U.S. Government officials and military leaders has called
for the closure of the detention facility at Guantanamo Bay to enhance
our national security, and this administration is determined to
accomplish this within the 1 year timeframe directed by the President.
We are actively working to prosecute as many detainees as possible
before our Federal courts or in reformed military commissions, as well
as to transfer to other countries those detainees who can safely be
transferred. If there are some who can neither be prosecuted nor safely
transferred, the President has made clear that ``[w]e must have clear,
defensible, and lawful standards'' and ``a thorough process of periodic
review, so that any prolonged detention is carefully evaluated and
justified.'' Any such detention of the detainees currently at
Guantanamo would be based on authorization from Congress, i.e., the
2001 AUMF. See our answers to Questions 2, 22, and 33.
Mr. Kris. As the President has stated, rather than keeping us safe,
the prison at Guantanamo Bay has weakened our national security by
serving as a rallying cry for our enemies and reducing the willingness
of our allies to work with us in fighting an enemy that operates in
multiple countries. A bipartisan group of current and former senior
U.S. Government officials and military leaders has called for the
closure of the detention facility at Guantanamo Bay to enhance our
national security, and this administration is determined to accomplish
this within the 1 year timeframe directed by the President. We are
actively working to prosecute as many detainees as possible before our
Federal courts or in reformed military commissions, as well as to
transfer to other countries those detainees who can safely be
transferred. If there are some who can neither be prosecuted nor safely
transferred, the President has made clear that ``[w]e must have clear,
defensible, and lawful standards'' and ``a thorough process of periodic
review, so that any prolonged detention is carefully evaluated and
justified.'' Any such detention of the detainees currently at
Guantanamo would be based on authorization from Congress, i.e., the
2001 AUMF. See our answers to Questions 2, 22, and 33.
Admiral MacDonald. The President issued an Executive order on 22
January 2009 directing the closure of detention facilities at
Guantanamo no later than 1 year after the date of that order. As a
uniformed officer, it would not be appropriate for me to speculate
about alternatives that are inconsistent with the President's order.
Admiral Hutson. Close it and imprison the detainees elsewhere.
General Altenburg. The totality of the previous administration's
practices and policies regarding detainees has produced unwarranted
demonization of the facilities at Guantanamo. The confinement and court
complexes recently constructed there are state of the art; all
Americans should be proud of those facilities and the dedicated men and
women who operate them. Guantanamo provides the current administration
with a safe, secure, modern facility which should be re-considered as
an option for detaining belligerents and conducting military
commissions.
Mr. Marcus. We should still close GTMO and transfer the remaining
detainees to military prisons in the United States.
______
Questions Submitted by Senator James M. Inhofe
post-trial
44. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
assuming military commissions are held at Guantanamo, where will
detainees who are convicted serve out their sentence--in the United
States or somewhere else?
Mr. Johnson. This determination will likely be made on a case-by-
case basis. Of the three individuals who have been convicted by
military commissions to date, two were returned to their home
countries, and one remains in United States custody at Guantanamo.
Mr. Kris. This determination will likely be made on a case-by-case
basis. Of the three individuals who have been convicted by military
commissions to date, two were returned to their home countries, and one
remains in U.S. custody at Guantanamo.
Admiral MacDonald. This is a matter currently under review by the
administration and it is not a matter under my cognizance.
45. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
Federal Bureau of Investigation Director Robert Mueller said there is
the very real possibility that the Guantanamo detainees will recruit
more terrorists from among the Federal inmate population and continue
al Qaeda operations from the inside. What is the impact of placing
detainees in the U.S. prison system--pre-trial and post-trial?
Mr. Johnson. We are currently examining a number of different
options for housing Guantanamo detainees, including the possibility of
housing them in facilities separate and apart from the Federal inmate
population. There are sound legal and policy reasons to house any
detainees held under law of war authority separately from criminal
prisoners. In the event that any Guantanamo detainees are held in
proximity to Federal inmates, special administrative measures (SAMs)
are available where necessary and appropriate to restrict their
communications, isolate them from other prisoners, and prevent violence
to any person. See 28 CFR 501.3.
Mr. Kris. We are currently examining a number of different options
for housing Guantanamo detainees, including the possibility of housing
them in facilities separate and apart from the Federal inmate
population. There are sound legal and policy reasons to house any
detainees held under law of war authority separately from criminal
prisoners. In the event that any Guantanamo detainees are held in
proximity to Federal inmates, special administrative measures (SAMs)
are available where necessary and appropriate to restrict their
communications, isolate them from other prisoners, and prevent violence
to any person. See 28 CFR 501.3.
Admiral MacDonald. I respectfully defer to the administration on
this question, as it is not a matter under my cognizance.
46. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
has an assessment been done to determine the risk of escape as well as
potentially creating targets in the United States for terrorist
attacks?
Mr. Johnson. We will not move any detainees into the United States
unless and until we are convinced that the detainees will be held
safely and securely in a facility that satisfies all of our security
concerns. We note that 33 international terrorists are currently housed
in the Bureau of Prisons' administrative maximum (ADX) facility,
sometimes referred to as ``supermax.'' Nobody has ever escaped from the
ADX.
Mr. Kris. We will not move any detainees into the United States
unless and until we are convinced that the detainees will be held
safely and securely in a facility that satisfies all of our security
concerns. We note that 33 international terrorists are currently housed
in the Bureau of Prisons' administrative maximum (ADX) facility,
sometimes referred to as ``supermax.'' Nobody has ever escaped from the
ADX.
Admiral MacDonald. I respectfully defer to the administration on
this question, as a risk assessment of this sort is not under my
cognizance.
47. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
will Guantanamo detainees be segregated from the regular prison
population?
Mr. Johnson. We are currently examining a number of different
options for housing Guantanamo detainees, including the possibility of
housing them in facilities separate and apart from the Federal inmate
population. There are sound legal and policy reasons to house any
detainees held under law of war authority separately from criminal
prisoners.
Mr. Kris. We are currently examining a number of different options
for housing Guantanamo detainees, including the possibility of housing
them in facilities separate and apart from the Federal inmate
population. There are sound legal and policy reasons to house any
detainees held under law of war authority separately from criminal
prisoners.
Admiral MacDonald. I defer to the administration on this question
as it is not a matter under my cognizance.
48. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
currently, the United States has only one Supermax facility and it is
located in Florence, Colorado. According to a Bureau of Prisons
official, ``only one bed was not filled at Supermax'' as of May 21.
What facilities exist in the United States today that can hold these
detainees?
Mr. Johnson. As the administration works toward closing the
detention facility at Guantanamo Bay, Cuba, we are carefully
considering the various options as to where detainees could be housed.
These deliberations are ongoing, and therefore it would be
inappropriate to comment or speculate as to the outcome of that
determination or to discuss specific facilities. We can assure you,
however, that we will not move any detainees into the United States
unless and until we are convinced that the detainees will be held
safely and securely in a facility that satisfies all of our security
concerns and meets our legal obligations regarding treatment of the
detainees.
Mr. Kris. As the administration works toward closing the detention
facility at Guantanamo Bay, Cuba, we are carefully considering the
various options as to where detainees could be housed. These
deliberations are ongoing, and therefore it would be inappropriate to
comment or speculate as to the outcome of that determination or to
discuss specific facilities. We can assure you, however, that we will
not move any detainees into the United States unless and until we are
convinced that the detainees will be held safely and securely in a
facility that satisfies all of our security concerns and meets our
legal obligations regarding treatment of the detainees.
Admiral MacDonald. It is my understanding that the subject matter
of this question is under review by the administration and it is not a
matter within my cognizance. Therefore, I respectfully defer to the
administration.
49. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
today the Guantanamo detainees are held under well-established laws of
war permitting belligerents to confine captured enemies until
hostilities are over. What if a detainee is found not guilty--where
will he be released?
Mr. Johnson. As a matter of legal authority, the question of guilt
or innocence in a criminal prosecution is separate from the authority
to detain under the law of war. However, relying on law of war
authority to detain an individual in the current conflict after he has
been acquitted in Federal court or in a military commission raises
serious policy questions that we are continuing to consider. We note
that, in the last administration, two of the individuals who were tried
by military commission and received short sentences were returned to
their home countries post-conviction and later released. We believe
that this option would be appropriate for detainees who are acquitted
at trial, where consistent with national security and the interests of
justice.
Mr. Kris. As a matter of legal authority, the question of guilt or
innocence in a criminal prosecution is separate from the authority to
detain under the law of war. However, relying on law of war authority
to detain an individual in the current conflict after he has been
acquitted in Federal court or in a military commission raises serious
policy questions that we are continuing to consider. We note that, in
the last administration, two of the individuals who were tried by
military commission and received short sentences were returned to their
home countries post-conviction and later released. We believe that this
option would be appropriate for detainees who are acquitted at trial,
where consistent with national security and the interests of justice.
Admiral MacDonald. As I answered in response to Senator McCain (see
question # 30), each case would have to be dealt with based on its own
facts and circumstances. As a practical matter, a detainee acquitted
before a Military Commission would continue to be held in detention
under the laws of war and the Authorization to Use Military Force,
until released by order of the executive or his duly authorized
subordinate. The Executive's order could be issued independently or in
execution of a decision from a Federal court pursuant to a writ of
habeas corpus. But the overarching point is that an acquittal does not,
ipso facto, result in release if hostilities are still ongoing.
50. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
what does the administration plan to do when a Federal judge orders the
release of a detainee but who the administration knows is too dangerous
to release or transfer?
Mr. Johnson. As the President has stated, the United States is a
nation of laws and we must abide by court rulings. At the same time,
the administration will not voluntarily release into the United States
any detainees who would endanger the American people. If a detainee is
ordered released by a habeas court, we will work to develop transfer or
resettlement options that satisfy our security concerns, consistent
with the rulings of the court. Moreover, as noted above, for detainees
in the United States, authority to detain individuals under the
immigration laws pending their removal, particularly where they pose a
threat to national security, is an additional mechanism that may be
used if necessary to ensure that detainees will not endanger our
citizens.
Mr. Kris. As the President has stated, the United States is a
nation of laws and we must abide by court rulings. At the same time,
the administration will not voluntarily release into the United States
any detainees who would endanger the American people. If a detainee is
ordered released by a habeas court, we will work to develop transfer or
resettlement options that satisfy our security concerns, consistent
with the rulings of the court. Moreover, as noted above, for detainees
in the United States, authority to detain individuals under the
immigration laws pending their removal, particularly where they pose a
threat to national security, is an additional mechanism that may be
used if necessary to ensure that detainees will not endanger our
citizens.
Admiral MacDonald. If a Federal judge orders the release of a
detainee, the government would comply with the order to the fullest of
its ability or seek to appeal to a higher court.
51. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
what do you do with a detainee you cannot try or release due to
national security concerns?
Mr. Johnson. As the President stated in his National Archives
address, although we are going to exhaust every avenue that we have to
prosecute those at Guantanamo who pose a danger to our country, there
may ultimately be a category of Guantanamo detainees ``who cannot be
prosecuted for past crimes,'' but ``who nonetheless pose a threat to
the security of the United States'' and ``in effect, remain at war with
the United States.'' For the detainees at Guantanamo, the President has
stated that ''[w]e must have clear, defensible, and lawful standards''
and ``a thorough process of periodic review, so that any prolonged
detention is carefully evaluated and justified.'' Any such detention
will be based on authorization from Congress, i.e., the 2001 AUMF. As
the Supreme Court held in Hamdi v. Rumsfeld, and as the administration
has explained in filings in recent habeas cases, the detention
authority Congress has conferred under the AUMF should be informed by
the laws of war, which have long permitted detention of enemy forces to
ensure that they not return to the fight.
Mr. Kris. As the President stated in his National Archives address,
although we are going to exhaust every avenue that we have to prosecute
those at Guantanamo who pose a danger to our country, there may
ultimately be a category of Guantanamo detainees ``who cannot be
prosecuted for past crimes,'' but ``who nonetheless pose a threat to
the security of the United States'' and ``in effect, remain at war with
the United States.'' For the detainees at Guantanamo, the President has
stated that ``[w]e must have clear, defensible, and lawful standards''
and ``a thorough process of periodic review, so that any prolonged
detention is carefully evaluated and justified.'' Any such detention
will be based on authorization from Congress, i.e., the 2001 AUMF. As
the Supreme Court held in Hamdi v. Rumsfeld, and as the administration
has explained in filings in recent habeas cases, the detention
authority Congress has conferred under the AUMF should be informed by
the laws of war, which have long permitted detention of enemy forces to
ensure that they not return to the fight.
Admiral MacDonald. The laws of war and the AUMF do not require that
unprivileged enemy belligerents be referred to trial or released. They
may be detained for the duration of hostilities.
52. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
what is the risk of releasing Guantanamo detainees given the recidivism
rate is 1 in 7?
Mr. Johnson. There are always risks in releasing detainees, whether
from Guantanamo, or in Iraq or Afghanistan, or from our Federal
prisons. Recidivism is always a possibility. The prior administration
released and transferred abroad well over 500 detainees from Guantanamo
Bay, and some have returned to the fight. But the United States does
everything it can to mitigate these risks, including seeking any
necessary security assurances from the receiving country, arranging for
detainees to enter rehabilitation programs, and collecting biometrics
to prevent re-entry into the United States. In reviewing a detainee for
transfer, release, prosecution, or detention, our primary concerns are
always our national security interests, the safety of the America
people, and the rule of law.
Mr. Kris. There are always risks in releasing detainees, whether
from Guantanamo, or in Iraq or Afghanistan, or from our Federal
prisons. Recidivism is always a possibility. The prior administration
released and transferred abroad well over 500 detainees from Guantanamo
Bay, and some have returned to the fight. But the United States does
everything it can to mitigate these risks, including seeking any
necessary security assurances from the receiving country, arranging for
detainees to enter rehabilitation programs, and collecting biometrics
to prevent re-entry into the United States. In reviewing a detainee for
transfer, release, prosecution, or detention, our primary concerns are
always our national security interests, the safety of the American
people, and the rule of law.
Admiral MacDonald. The risk of releasing Guantanamo detainees is
that some may return to the battle. That risk is taken into account in
the review process of individual cases. As a general matter, if a
detainee is to be released to another country, the executive branch
seeks to receive security assurances from the receiving State and, in
appropriate cases, assurances that rehabilitation programs will be
employed.
53. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
when does the administration plan to ask permission from Congress to
authorize long-term detention of detainees?
Mr. Johnson. Congress has already provided authorization through
the AUMF to detain persons who the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, persons who harbored those responsible for those
attacks, and persons who were part of, or substantially supported,
Taliban or al Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition partners. Habeas
courts are actively reviewing the government's detention decisions with
respect to Guantanamo detainees. The administration is not currently
seeking additional authorization.
Mr. Kris. Congress has already provided authorization through the
AUMF to detain persons who the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred on
September 11, 2001, persons who harbored those responsible for those
attacks, and persons who were part of, or substantially supported,
Taliban or al Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition partners. Habeas
courts are actively reviewing the government's detention decisions with
respect to Guantanamo detainees. The administration is not currently
seeking additional authorization.
Admiral MacDonald. I respectfully defer to the administration on
any question concerning the administration's intentions regarding
possible introduction of legislation relating to detainees.
trial location
54. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
the Expeditionary Legal Complex (ELC) provides a secure location to
secure and try detainees charged by the U.S. Government, full access to
sensitive and classified information, full access to defense lawyers
and prosecution, and full media access by the press. Moving detainees
to prisons in the United States as well as trying them in the United
States will require a significant investment and re-structuring of our
existing detention facilities. In 2002, an entire wing of a jail in
Alexandria, Virginia, was cleared out for the September 11 ``20th
Hijacker,'' Zacarias Moussaoui, to be housed for his trial--just for
one detainee. Where will military commissions be held--at Guantanamo or
in the United States?
Mr. Johnson. We are currently considering all possible options.
That said, the President has committed to closing Guantanamo by the end
of January 2010. As the President has stated, rather than keep us safe,
the prison at Guantanamo Bay has weakened our national security by
serving as a rallying cry for our enemies and reducing the willingness
of our allies to work with us in fighting an enemy that operates in
multiple countries. A bipartisan group of current and former senior
U.S. government officials and military leaders have called for the
closure of the detention facility at Guantanamo Bay to enhance our
national security, and this administration is determined to accomplish
this within the 1-year timeframe directed by the President.
Mr. Kris. We are currently considering all possible options. That
said, the President has committed to closing Guantanamo by the end of
January 2010. As the President has stated, rather than keep us safe,
the prison at Guantanamo Bay has weakened our national security by
serving as a rallying cry for our enemies and reducing the willingness
of our allies to work with us in fighting an enemy that operates in
multiple countries. A bipartisan group of current and former senior
U.S. Government officials and military leaders have called for the
closure of the detention facility at Guantanamo Bay to enhance our
national security, and this administration is determined to accomplish
this within the 1-year timeframe directed by the President.
Admiral MacDonald. I have not been involved in any discussions
regarding the location, or potential location, for military
commissions. That determination will be made by the administration.
55. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
assuming military commissions are held at Guantanamo, what additional
constitutional rights will a detainee gain if they are tried in the
United States versus Guantanamo?
Mr. Johnson. See our answer to question 17. We believe that,
whether military commissions are convened in the United States or at
Guantanamo, there is a significant risk, in light of the circumstances
of the Guantanamo detainees, that courts will apply a baseline of due
process protection in commission proceedings. This does not mean that
courts will provide commission defendants with the same array of
constitutional rights that defendants receive in Article III criminal
trials. We do believe, however, that there is a significant risk courts
would afford commission defendants with those due process protections
that are ``so rooted in the traditions and conscience of our people as
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97,
105 (1934), regardless of whether commission proceedings are held at
Guantanamo Bay or in the United States. It is not clear that moving
commission trials to the United States would have a significant impact
on how they function as a legal matter, as basic due process
protections may apply irrespective of their location.
Mr. Kris. See our answer to question 17. We believe that, whether
military commissions are convened in the United States or at
Guantanamo, there is a significant risk, in light of the circumstances
of the Guantanamo detainees, that courts will apply a baseline of due
process protection in commission proceedings. This does not mean that
courts will provide commission defendants with the same array of
constitutional rights that defendants receive in Article III criminal
trials. We do believe, however, that there is a significant risk courts
would afford commission defendants with those due process protections
that are ``so rooted in the traditions and conscience of our people as
to be ranked as fundamental,'' Snyder v. Massachusetts, 291 U.S. 97,
105 (1934), regardless of whether commission proceedings are held at
Guantanamo Bay or in the United States. It is not clear that moving
commission trials to the United States would have a significant impact
on how they function as a legal matter, as basic due process
protections may apply irrespective of their location.
Admiral MacDonald. The Supreme Court held in Boumediene, that
detainees held at Guantanamo have a right to habeas review under the
Suspension Clause of the Constitution. The Court did not extend other
Constitutional protections to those detainees, and subsequent decisions
by lower courts have held that the holding in Boumediene was limited to
the Suspension Clause. I am not aware of any precedent, on point, that
would extend other Constitutional rights to alien unprivileged enemy
belligerents detained under the laws of war, whether held within the
United States or outside the United States.
56. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
are there differences in the rights awarded to detainees tried in a
military commission versus civilian court? Could location or geography
affect the right afforded to detainees (somewhere in the United States
versus Guantanamo)?
Mr. Johnson. Properly reformed military commissions are uniquely
situated to take into account the realities of the battlefield and the
particular challenges of gathering evidence during military operations
overseas, while also providing due process to the accused. For example,
some of our customary rules of criminal procedure, such as Miranda-like
warnings, are not required in the military commissions legislation that
passed the Senate.
With regard to location, it is not clear that moving the trials to
the United States would have a significant impact on how they function
as a legal matter, as basic due process protections may apply
irrespective of their location. Our goal is to create a military
commissions system that is fair, effective, and legal, and will survive
appellate review, regardless of where the trials take place.
Mr. Kris. Properly reformed military commissions are uniquely
situated to take into account the realities of the battlefield and the
particular challenges of gathering evidence during military operations
overseas, while also providing due process to the accused. For example,
some of our customary rules of criminal procedure, such as Miranda-like
warnings, are not required in the military commissions legislation that
passed the Senate.
With regard to location, it is not clear that moving the trials to
the United States would have a significant impact on how they function
as a legal matter, as basic due process protections may apply
irrespective of their location. Our goal is to create a military
commissions system that is fair, effective, and legal, and will survive
appellate review, regardless of where the trials take place.
Admiral MacDonald. As I noted in my answer to question 55, I
believe that the rights afforded to detainees within the draft military
commissions legislation under consideration by this committee will be
sufficient to protect whatever rights a detainee has regardless of the
physical location of the commission. Those rights are not identical to
the rights that are found in civilian courts.
Both commissions and civilian courts offer a right of
confrontation, a right of counsel, the right to be present during the
introduction of evidence, a right to remain silent, protection against
statements obtained by torture or cruel, inhuman or degrading
treatment, a right of due process, a right to an impartial judge, and
appellate review. Both include a presumption of innocence, proof beyond
a reasonable doubt, protection against double jeopardy, and the right
to 12 members in a capital case.
However, the right of confrontation in criminal courts forbids the
introduction of testimonial hearsay. Commissions permit hearsay if
reliable. Domestic courts use a voluntariness standard for
admissibility of statements of a defendant, while commissions rules
would permit a military judge to consider voluntariness as an aspect of
determining both reliability and admissibility in the interests of
justice. Due process rights before commissions is informed by the law
of war, permitting substitutes for domestic norms, such as trial by
members rather than trial by jury, and trial based upon sworn charges
rather than indictment. The right to a Miranda warning is well founded
in domestic law, but is not required for admission of statements in a
military commission because it is inconsistent with the duties of a
Soldier or Marine conducting a battlefield interrogation. Similarly,
search and seizure laws applicable under the Fourth Amendment generally
do not apply to searches and seizures outside of the United States.
protection of classified information
57. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
some classified information that could be essential to the conviction
of these detainees is still extremely sensitive and could compromise
ongoing activities as well as American lives. How do we handle
protection of classified information during trials?
Mr. Johnson. Ensuring that classified information is adequately
safeguarded in order to protect our national security is a paramount
concern for the administration. The system provided by CIPA for
criminal cases prosecuted in Federal Court has generally worked well in
protecting classified information, while also ensuring a fair,
credible, and effective trial. We have worked closely with the
committee staff to develop the Levin-Graham-McCain amendment that was
adopted by the Senate on July 23, and provides for a modified version
of CIPA that reflects lessons learned from past terrorism prosecutions.
We are grateful for the work of the committee staff in developing
procedures that will adequately protect classified information and
advance the President's objective of reforming the commissions and
ensuring that they are a fair, legitimate, and effective forum for the
prosecution of law of war offenses.
Mr. Kris. Ensuring that classified information is adequately
safeguarded in order to protect our national security is a paramount
concern for the administration. The system provided by CIPA for
criminal cases prosecuted in Federal Court has generally worked well in
protecting classified information, while also ensuring a fair,
credible, and effective trial. We have worked closely with the
committee staff to develop the Levin-Graham-McCain amendment that was
adopted by the Senate on July 23, and provides for a modified version
of CIPA that reflects lessons learned from past terrorism prosecutions.
We are grateful for the work of the committee staff in developing
procedures that will adequately protect classified information and
advance the President's objective of reforming the commissions and
ensuring that they are a fair, legitimate, and effective forum for the
prosecution of law of war offenses.
Admiral MacDonald. The provisions addressing classified evidence
permitted a military judge to determine the reliability of underlying
evidence, and redact classified sources and methods from material
provided to the defense. The standards for discovery and use in
military commisions are similar to those found in courts-martial, but
given the lack of a robust body of case law interpreting those rules,
the rules addressing classified information fail to provide clear
guidance to military judges and practitioners regarding both the
standards for discovery and the procedures to be used in obtaining ex
parte review of petitions from the government. The rules governing
classified information have no clear analogue in either courts-martial
or Article III courts, depriving commissions of the benefit of the
jurisprudence that exists under established norms in either courts-
martial or district courts. Without such clear guidance, counsel have
been unable to obtain ex parte hearings to expedite the resolution of
classified information issues, and have had to seek multiple protective
orders to ensure all information, regardless of source, is properly
protected.
I recommend that the classified information rules be altered,
relying on CIPA as a touchstone for starting the draft, incorporating
the lessons learned from commissions to date, and those provisions of
MRE 505 that permit closure of the proceedings when warranted. Counsel
and military judges will then have the benefit of more than 20 years of
jurisprudence from CIPA application to guide the use of the rules.
long-term implications
58. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
what are the long-term implications on future conflicts of trying these
detainees in a civil court versus military commissions?
Mr. Johnson. As we testified before the committee, the
administration is committed to using all elements of national power and
authority--including the systems of justice in both Federal courts and
military commissions--to defeat our enemy and to advance the interests
of justice. Federal courts have been used successfully many times
before to try and convict suspected terrorists, including individuals
affiliated with al Qaeda. We have developed a protocol to determine
whether cases will be tried in a military commission or a Federal
court, and will make these determinations on a case by case basis. The
protocol is attached (see Annex A). We do not believe that these
determinations will foreclose any options for the future.
Mr. Kris. As we testified before the committee, the administration
is committed to using all elements of national power and authority--
including the systems of justice in both Federal courts and military
commissions--to defeat our enemy and to advance the interests of
justice. Federal courts have been used successfully many times before
to try and convict suspected terrorists, including individuals
affiliated with al Qaeda. We have developed a protocol to determine
whether cases will be tried in a military commission or a Federal
court, and will make these determinations on a case-by-case basis. The
protocol is attached (see Annex A). We do not believe that these
determinations will foreclose any options for the future.
Admiral MacDonald. Each case deserves an individual determination
as to whether or where a trial might be conducted. There may be
individual instances where a determination may be warranted to
criminally prosecute a case in an Article III court, depending on
factors such as the citizenship of the accused, the location of the
offense, the status of the victims, or the particularities of the
crime. Ultimately, it is a policy determination as to whether the
administration chooses to pursue a case in one forum or another. No
matter whether or how that determination is made, however, I think it
is important that the system for military commissions we establish is
fair, and that we are confident enough in the fairness and legality of
their rules and procedures that we would accept trial of our own
servicemembers before similar tribunals for allegations of war crimes
brought by another country.
miranda rights
59. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
currently, new intelligence is continually being collected from
detainees at Guantanamo and is being used to fight terrorists in Iraq,
Afghanistan, and around the globe. According to former Central
Intelligence Agency Director George Tenet, upon Khalid Sheikh
Mohammad's capture on March 1, 2003, he said: ``I'll talk to you guys
after I get to New York and see my lawyer.'' Why is the administration
reading Miranda Rights to some detainees captured or held in Iraq and
Afghanistan? How many are being read Miranda Rights? How many have
invoked their rights?
Mr. Johnson. First, it should be made clear that Miranda warnings
are never given by our soldiers on the battlefield or in any other
circumstance where they would have an adverse impact on military or
intelligence operations. The essential mission of our Nation's
military, in times of armed conflict, is to capture or engage the
enemy; it is not evidence collection or law enforcement. Members of the
U.S. military do not provide Miranda warnings to those they capture.
Under policies that have been in place for years (including under
the previous administration), Miranda warnings are only given in a very
small number of cases after an individual has been removed from the
battlefield, and only when consistent with military and intelligence
needs. This administration is committed to using all instruments of
national power to defeat terrorist extremists. This includes, and will
continue to include, the prosecution of some terrorists in Article III
courts. In that event, U.S. law enforcement personnel have, in a
handful of situations, been permitted to question detainees who are
potential prospects for prosecution, accompanied by Miranda warnings.
The warnings are never given if doing so will hinder our
counterterrorism efforts.
Mr. Kris. First, it should be made clear that Miranda warnings are
never given by our soldiers on the battlefield or in any other
circumstance where they would have an adverse impact on military or
intelligence operations. The essential mission of our Nation's
military, in times of armed conflict, is to capture or engage the
enemy; it is not evidence collection or law enforcement. Members of the
U.S. military do not provide Miranda warnings to those they capture.
Under policies that have been in place for years (including under
the previous administration), Miranda warnings are only given in a very
small number of cases after an individual has been removed from the
battlefield, and only when consistent with military and intelligence
needs. This administration is committed to using all instruments of
national power to defeat terrorist extremists. This includes, and will
continue to include, the prosecution of some terrorists in Article III
courts. In that event, U.S. law enforcement personnel have, in a
handful of situations, been permitted to question detainees who are
potential prospects for prosecution, accompanied by Miranda warnings.
The warnings are never given if doing so will hinder our
counterterrorism efforts.
Admiral MacDonald. It has been the longstanding practice of the
U.S. Government to use Miranda warnings in a very small number of cases
in which it is important to our national security to ensure that
statements made by terrorist suspects can be used in a criminal
prosecution. However, the warnings are given in locations removed from
the battlefield, and only after the military's intelligence-gathering
and force protection needs have been met. The decision as to whether or
not to give a warning is made by experienced career professionals in
consultation with military and intelligence officials. The warnings are
never given if the professionals conclude that doing so will hinder our
counterterrorism efforts.
I do not know the number of cases in which a detainee has invoked
his right to silence.
60. Senator Inhofe. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
what is the impact of requiring the reading of Miranda Rights to
terrorists captured on the battlefield and advising them they have the
right to remain silent?
Mr. Johnson. See the answer to question 59.
Mr. Kris. See the answer to question 59.
Admiral MacDonald. The impact of requiring Miranda warnings on the
battlefield would be significant. Soldiers seek actionable intelligence
in order to achieve the mission, and any requirement that impinges on
obtaining such information would endanger both the mission and the
lives of servicemembers who require that information to subdue the
enemy in battle. Soldiers must be free to exercise their full authority
under the law of war to obtain actionable intelligence, or risk
compromise of the mission and safety of our troops.
However, where the provision of Miranda rights will not risk
compromise of the mission or safety of our troops, providing Miranda
warnings may enable the government to keep all options on the table,
thus helping to ensure that those who commit terrorist acts against our
citizens can be brought to justice, whether in Federal courts or
military commissions.
______
Questions Submitted by Senator Jeff Sessions
capital charges
61. Senator Sessions. Mr. Kris, the MCA has been construed by some
military judges to prevent prosecutors from pursuing capital charges
against a defendant if he pleads guilty. This is not the case in the
civilian system, right? In other words, in State and Federal courts, a
defendant who pleads guilty can still be charged with a capital
offense?
Mr. Kris. In the Federal civilian system, as well as in the vast
majority of the States which currently have capital punishment, the
death penalty can be imposed after a guilty plea. The question of
whether the MCA and commissions rules permit the death penalty to be
imposed after a guilty plea in military commissions is currently the
subject of litigation that is pending before the commissions. We have
argued in litigation that the existing law allows for the imposition of
the death penalty after a guilty plea to capital charges. No courts
have ruled on the question to date.
62. Senator Sessions. Mr. Kris, the courts' interpretation of the
MCA makes it harder to pursue a capital case, in the case of a
defendant who pleads guilty, than it would be if the same unlawful
belligerent were prosecuted in State or Federal court--or if a U.S.
citizen were prosecuted for murder in State or Federal court. Is that
correct?
Mr. Kris. Whether the death penalty can be imposed after a guilty
plea under the MCA is the subject of pending litigation and no courts
have ruled on this question to date. In the Federal system, and in the
vast majority of the States which currently have capital punishment,
the death penalty can be imposed after a guilty plea.
63. Senator Sessions. Mr. Kris, if Khalid Sheikh Muhammad, for
example, began to have doubts about the heavenly reward that has been
promised to him by Osama bin Laden in the event of his death, could he
simply plead guilty, and thereby ensure that no capital charges can be
brought against him?
Mr. Kris. Whether a defendant chooses to plead guilty or go to
trial has no bearing on which charges can be brought; the question is
solely about the punishment, that is, whether the death penalty can be
imposed based on a conviction resulting from a guilty plea rather than
a finding of guilt after a trial. This question is the subject of
pending litigation before the military commissions, as discussed above.
64. Senator Sessions. Mr. Kris, do you believe that Congress should
correct this anomaly?
Mr. Kris. We have argued in litigation that the existing statute
and rules allow for the imposition of the death penalty after a guilty
plea to capital charges. The administration has not taken a position on
whether this matter requires any further congressional action.
classified information
65. Senator Sessions. Mr. Kris, the committee-reported NDAA
requires that, before the government may seek protection for classified
information, it first must certify that the information in question has
been declassified ``to the maximum extent possible.'' Does the
administration support this change--and if not, why do you believe that
it is unsound?
Mr. Kris. A provision in the bill passed by the Senate Armed
Services Committee allowed the use of traditional CIPA protections for
classified evidence--such as substitutions--only after an agency head
or original classifying authority has certified that the evidence has
been declassified to the maximum extent possible. The administration
expressed concern that this provision has no analogue in CIPA or the
UCMJ, and created a potentially burdensome process of declassifying
information for which disclosure might not be ordered after an ex parte
review by a military judge or district court.
On July 23, the Senate adopted an amendment to revise the section
of the bill governing the handling of classified information in
military commission trials. Among other things, this amendment removed
this requirement.
66. Senator Sessions. Mr. Kris, I understand that there is an
ambiguity in the MCA as to whether it allows presentations in support
of a motion to protect classified evidence to be presented ex parte.
Some judges apparently think that only the written motion may be filed
ex parte, but that an oral presentation in support of the motion cannot
be made to the court ex parte. In the Federal courts' practice under
the CIPA, can presentations as well as written motions seeking
protection for classified evidence be made ex parte?
Mr. Kris. In Federal court practice, trial judges generally permit
the government to present oral, as well as written ex parte
explanations concerning the national security interests in classified
information that is potentially subject to discovery. In military
commissions practice, however, judges have demonstrated reluctance to
permit such ex parte oral presentations. We believe the Levin-McCain-
Graham amendment to section 1031 of the NDAA makes clear that oral ex
parte presentations are permitted.
67. Senator Sessions. Mr. Kris, what practical problems arise when
MCA judges do not allow such presentation to be made ex parte?
Mr. Kris. Proposing substitutions and summaries of classified
information is a cumbersome process, given the technical difficulties
associated with developing alternatives to full disclosure that provide
information material to the defense without disclosing sensitive
classified information. Ex parte sessions provide an opportunity for
trial counsel to immediately respond to questions from the military
judge by explaining the alternatives or proposing amendments to the
alternatives without the delay involved in relying solely on written
submissions.
68. Senator Sessions. Mr. Kris, the MCA allows the United States to
seek protective orders for information that the United States has
supplied to the defense through discovery. The text of the MCA,
however, does not authorize such protective orders for classified or
other sensitive information that the defendants obtains through other
means. Has this proven to be a problem in MCA prosecutions, and if so,
can you describe the circumstances in which it has been a problem?
Mr. Kris. Yes, this has proven to be a problem in MCA prosecutions.
Unfortunately, classified information may be found in open or public
sources due to previous unauthorized disclosures. However, these
unauthorized disclosures do not change the classification level of the
information and do not minimize the damage to national security that
disclosure is reasonably expected to cause. When leaked classified
information is cited or used by counsel who have security clearances or
otherwise have had access to classified information by virtue of their
role as counsel, the public perceives that the leaked classified
information has been acknowledged, thus increasing the harm to national
security. The government is put in the untenable position of risking
further disclosures by confirming or denying the classified
information. We believe the Levin-McCain-Graham amendment to section
1031 of the NDAA addresses this problem by authorizing protective
orders in this context.
69. Senator Sessions. Mr. Kris, I understand that the
administration has informally suggested that the standard for discovery
in MCA litigation should be clarified, so that discovery is available
for information that is relevant and necessary to a legally cognizable
and relevant defense or to sentencing issues. Can you describe the
policy reasons for this proposal?
Mr. Kris. We think it is important to codify and adapt current law
and practice on this issue under the CIPA for the military commission
context, in order to better protect classified information that is the
subject of a discovery request by the defense. We believe the Levin-
McCain-Graham amendment to section 1031 of the NDAA addresses this
issue appropriately. Under the amendment, defense counsel will not have
access to classified evidence unless it materially assists the defense
in rebutting an element of the offense, in asserting an affirmative
defense, or in obtaining a favorable sentence, and an unclassified
substitution or summary is inadequate. This codifies current law. See,
e.g., United States v. Yunis, 867 F.2d 617, 624-25 (DC Cir. 1989).
______
Questions Submitted by Senator Susan Collins
habeas corpus challenges
70. Senator Collins. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
the Supreme Court's decisions have left unresolved the question whether
Guantanamo detainees may challenge the conditions of their detention,
such as whether they can be held in solitary confinement, when they can
be transferred, or whether they can have contact with their relatives.
Does the administration support allowing habeas challenges to these and
other aspects of detention?
Mr. Johnson. The administration believes that current law does not
authorize Guantanamo detainees to challenge the conditions of their
detention before an Article III court. In fact, we have to date
prevailed in this argument in every habeas case in which it has arisen.
Mr. Kris. The administration believes that current law does not
authorize Guantanamo detainees to challenge the conditions of their
detention before an Article III court. In fact, we have to date
prevailed in this argument in every habeas case in which it has arisen.
Admiral MacDonald. I am unaware of any judicial precedent, on
point, for a Federal court to review the conditions of detention for
alien unprivileged enemy belligerents. As I answered in an earlier
question, I also believe that the laws of war, themselves, obligate the
United States to make additional accommodations in the conditions of
detention for unprivileged enemy belligerents as the length of
detention extends over many years.
71. Senator Collins. Mr. Johnson, Mr. Kris, and Admiral MacDonald,
the typical remedy for habeas claims is the release of the individual
being unlawfully detained. But given that many of the detainees cannot
be released to their home countries or another country willing to take
them, what does the administration believe to be a practical remedy in
the event that a detainee successfully challenges his detention?
Mr. Johnson. If a detainee is ordered released by a habeas court,
and cannot be returned to his home country, we will work to develop
alternative transfer or resettlement options that are lawful and that
satisfy our security concerns. Moreover, as noted above, for detainees
in the United States, authority to detain individuals under the
immigration laws pending their removal, particularly where they pose a
threat to national security, is an additional mechanism that may be
used if necessary to ensure that detainees will not endanger our
citizens.
Mr. Kris. If a detainee is ordered released by a habeas court, and
cannot be returned to his home country, we will work to develop
alternative transfer or resettlement options that are lawful and that
satisfy our security concerns. Moreover, as noted above, for detainees
in the United States, authority to detain individuals under the
immigration laws pending their removal, particularly where they pose a
threat to national security, is an additional mechanism that may be
used if necessary to ensure that detainees will not endanger our
citizens.
Admiral MacDonald. This question falls outside my area of expertise
and is a matter now under review by the administration's Detention
Policy Task Force.
[Annexes A through D follow:]
ANNEX A
ANNEX B
ANNEX C
ANNEX D
[Whereupon, at 12:10 p.m., the committee adjourned.]
