[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 109-116]
STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS
__________
HEARING
BEFORE THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
HEARING HELD
JULY 12, 2006
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Ninth Congress
DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania IKE SKELTON, Missouri
JOEL HEFLEY, Colorado JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York LANE EVANS, Illinois
TERRY EVERETT, Alabama GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland NEIL ABERCROMBIE, Hawaii
MAC THORNBERRY, Texas MARTY MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana SILVESTRE REYES, Texas
WALTER B. JONES, North Carolina VIC SNYDER, Arkansas
JIM RYUN, Kansas ADAM SMITH, Washington
JIM GIBBONS, Nevada LORETTA SANCHEZ, California
ROBIN HAYES, North Carolina MIKE McINTYRE, North Carolina
KEN CALVERT, California ELLEN O. TAUSCHER, California
ROB SIMMONS, Connecticut ROBERT A. BRADY, Pennsylvania
JO ANN DAVIS, Virginia ROBERT ANDREWS, New Jersey
W. TODD AKIN, Missouri SUSAN A. DAVIS, California
J. RANDY FORBES, Virginia JAMES R. LANGEVIN, Rhode Island
JEFF MILLER, Florida STEVE ISRAEL, New York
JOE WILSON, South Carolina RICK LARSEN, Washington
FRANK A. LoBIONDO, New Jersey JIM COOPER, Tennessee
JEB BRADLEY, New Hampshire JIM MARSHALL, Georgia
MICHAEL TURNER, Ohio KENDRICK B. MEEK, Florida
JOHN KLINE, Minnesota MADELEINE Z. BORDALLO, Guam
CANDICE S. MILLER, Michigan TIM RYAN, Ohio
MIKE ROGERS, Alabama MARK UDALL, Colorado
TRENT FRANKS, Arizona G.K. BUTTERFIELD, North Carolina
BILL SHUSTER, Pennsylvania CYNTHIA McKINNEY, Georgia
THELMA DRAKE, Virginia DAN BOREN, Oklahoma
JOE SCHWARZ, Michigan
CATHY McMORRIS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
BRIAN P. BILBRAY, California
Robert L. Simmons, Staff Director
Paul Lewis, Professional Staff Member
Lorry Fenner, Professional Staff Member
Regina Burgess, Research Assistant
C O N T E N T S
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CHRONOLOGICAL LIST OF HEARINGS
2006
Page
Hearing:
Wednesday, July 12, 2006, Standards of Military Commissions and
Tribunals...................................................... 1
Appendix:
Wednesday, July 12, 2006......................................... 49
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WEDNESDAY, JULY 12, 2006
STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Hunter, Hon. Duncan, a Representative from California, Chairman,
Committee on Armed Services.................................... 1
Skelton, Hon. Ike, a Representative from Missouri, Ranking
Member, Committee on Armed Services............................ 3
WITNESSES
Bradbury, Steven G., Acting Assistant Attorney General, Office of
Legal Counsel, Department of Justice........................... 4
Dell'Orto, Daniel J., Principal Deputy General Counsel,
Department of Defense.......................................... 7
Hutson, Rear Adm. John D. (Ret.), President and Dean, Franklin
Pierce Law Center, Former Judge Advocate General, U.S. Navy.... 10
Olson, Theodore B., Former Solicitor General of the United States 8
APPENDIX
Prepared Statements:
Bradbury, Steven G........................................... 60
Dell'Orto, Daniel J.......................................... 71
Hutson, Rear Adm. John D. (Ret.)............................. 96
Olson, Theodore B............................................ 74
Skelton, Hon. Ike............................................ 53
Udall, Hon. Mark............................................. 98
Documents Submitted for the Record:
Guantanamo Bay: New Kind of Law for New Kind of War submitted
by Glenn Sulmasy........................................... 111
National Institute of Military Justice, Proposed Amendments
to the Uniform Code of Military Justice, dated July 5, 2006 101
Questions and Answers Submitted for the Record:
Ms. Davis of California...................................... 126
Ms. Sanchez.................................................. 115
Ms. Tauscher................................................. 119
STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS
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House of Representatives,
Committee on Armed Services,
Washington, DC, Wednesday, July 12, 2006.
The committee met, pursuant to call, at 9:57 a.m., in room
2118, Rayburn House Office Building, Hon. Duncan Hunter
(chairman of the committee) presiding.
OPENING STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM
CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED SERVICES
The Chairman. The committee will come to order. This
hearing addresses standards for military commissions for trials
involving war crimes. I also want to introduce a new Republican
Member from California as a member of the committee, and we
will wait until he arrives before we do that.
But I want to welcome our distinguished panel. We have with
us today Mr. Steven Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, Department of Justice; Mr.
Daniel Dell'Orto, Principal Deputy General Counsel, Department
of Defense; the Honorable Theodore Olson, former Solicitor
General of the United States; and Rear Admiral John Hutson,
United States Navy, retired, former Judge Advocate General,
U.S. Navy.
Gentlemen, thank you for being with us. We look forward to
hearing your comments on the recent Supreme Court decision on
military commissions and where we go from here.
In Hamdan, the Supreme Court denied the government's motion
to dismiss, stating the Detainee Treatment Act of 2005, which
Congress passed at the end of the year, did not deprive the
Court of jurisdiction. The Court also held that the President's
rules for military commissions are not legal because they do
not conform to the Uniform Code of Military Justice and because
they do not conform to Common Article 3 of the Geneva
Conventions.
I think we need to take a close look at each of these
rulings, but before we go any further, we need to do a reset.
Make no mistake about the United States is engaged in a war
with terrorists. Whether we call it a Long War or a Global War
Against Terror, or some other term, this Nation is at war. The
enemy declared war in 1996 when Osama bin Laden declared a
jihad against America. It continued on September 11th, and it
continues today. We are at war, and we may be at war for a long
time.
I emphasize this at the outset because we are here to
address how America fights wars. All three branches of
government are involved in this discussion with the Supreme
Court's decision in Hamdan v. Rumsfeld.
In Hamdan, the Supreme Court told us to start over when it
comes to trying the enemy as war criminals. We need to start
over not just because the Court told us to, but because we are
in a new type of war against a new type of enemy.
Justice Thomas put it best in Hamdan. He said, and I quote:
We are not engaged in a traditional battle with a nation-state,
but with a worldwide Hydra-headed enemy who lurks in the
shadows, conspiring to reproduce the atrocities of September
11th, 2001, and who has boasted of sending suicide bombers into
civilian gatherings, has proudly distributed videotapes of
beheadings of civilian workers, and has tortured and
dismembered captured American soldiers.
So who are we dealing with in military commissions? We are
dealing with the enemy in war, not defendants in our domestic
criminal justice system. And on that point the background that
I have seen on Mr. Hamdan is that he is accused of being a
bodyguard for Osama bin Laden, a deliverer of weapons and a
person who operated convoys for al Qaeda.
So we are dealing with the enemy in war, not defendants in
our domestic criminal justice system, that is clear. Some of
them have returned to the battlefield after we let them out of
Guantanamo, and this committee has seen pictures of people who
were released from Guantanamo after they asserted that they had
had only a peripheral connection with the battlefield and that
they would be behave themselves if allowed to return home, and
later on they ended up carrying weapons, shooting at, and
presumably inflicting injury on American soldiers on the
battlefield.
So our primary purpose is to keep them off the battlefield.
In doing so, we treat them humanely, and if we choose to treat
them as war criminals, we will give them due process rights
that the world will respect. But we have to remember they are
the enemy in an ongoing war. In this new war where intelligence
is more vital than ever, we want to interrogate the enemy, not
to degrade them, but to save the lives of American troops,
American civilian and our allies. But it may not be practical
on the battlefield to read the enemy their Miranda warnings.
Classified information is another area which we need to
look closely at. Do we want to give the enemy the sources and
methods of how we obtain information? Court-martials in Federal
criminal trials have special rules to protect classified
information for our soldiers and civilians, but do we want to
give battle intelligence to terrorists? In time of war it may
not be practical to apply the rules of evidence that we do in
civilian--the same rules of evidence that we do in civilian
trials or court-martials for our troops. Will commanders and
witnesses be called from the frontline to testify in a military
commission, or can we use reliable hearsay and sworn
affidavits? I note that hearsay is allowed in international war
crime tribunals for Rwanda and Yugoslavia.
Justices Stevens and Kennedy, who both shaped the Hamdan
opinion, each stated that there could be justification from
deviation from the old rules in this new war. Justice Stevens
simply said the President did not make such a justification for
the rules regarding military commissions, although he said such
a justification might be proper if, and I quote, some practical
need explains deviations from court-martial practice.
Justice Kennedy said, again I quote, ``If Congress after
due consideration deems it appropriate to change the
controlling statutes in conformation with the Constitution and
other laws, it has the power and prerogative to do so.''
So let's see if there is a need or practical reason to
change the rules. We have to give the executive the tools to
fight this war. This is not a separation of powers issue; it is
an issue of how to defeat the enemy. The Supreme Court says
that we need congressional participation, but in doing so let's
not forget our purpose is to defend the Nation against the
enemy. We won't lower our standards, we will always treat
detainees humanely, but we can't be naive either.
The war started in 1996 with the al Qaeda declaration of
jihad against the Nation. The Geneva Conventions were written
in 1945, and the Uniform Code of Military Justice (UCMJ) was
adopted in 1951. In that sense Hamdan may be broader than war
crimes trials that may be the start of a new legal analysis of
the long war.
It is time for us to think about war crime trials and a
process that provides due process and protects national
security in the new war. So I think that really is the essence
of what we need to produce in this effort that Congress is
going to undertake, and that is a balancing of these two goals,
national security and due process, fair play for those who are
detained.
Whatever we decide, we will uphold basic human rights and
state what our compliance with this standard means for the
treatment of detainees. I am sure we can do this in a way that
is fair and the world will acknowledge is fair. Each witness
here today is uniquely qualified to address these questions.
And so, gentlemen, thank you for being with us, and before
we go to your statements, I would like to turn to my good
friend from Missouri, Mr. Skelton, whose father was involved in
the litigation of one of the key cases that was cited by the
Hamdan court ex parte. I look forward to his comments and the
comments from all my colleagues, and I would also like to
mention that Ms. Sanchez has proposed a provision for a
commission that she offered--has offered in our last markup,
and she has worked this issue, and she should be commended for
that, and we will be looking at her proposal as well as
proposals and recommendations and suggestions of all Members.
So at this time I would like to turn to the gentleman from
Missouri, Mr. Skelton.
STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI,
RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Skelton. Mr. Chairman, thank you very much. I join in
welcoming the witnesses.
Mr. Chairman, I am going to be brief and ask that my longer
statement be entered into the record in the interest of going
straight to the testimony and to the questions.
We in Congress have a responsibility to those who serve in
uniform in the same way we are committed to ensuring that our
forces have the best equipment when they go into battle. We
will do everything, I will repeat, we will do everything to
make sure the enemy is taken off the battlefield and not given
another opportunity to kill American soldiers and marines.
We take this as our charge, but we must do so in a way that
conforms strictly to the rule of law with our core values as
Americans. That is what our troops fight for.
Mr. Chairman, I am glad you mentioned Ms. Sanchez's
proposed legislation. She has been working on this for a good
number of actually years, if I understand correctly, and has
anticipated the outcome of this case.
The Supreme Court spoke loudly and it spoke clearly when it
ruled in the Hamdan case, and we can and we must craft a system
for aggressively dealing with accused terrorists and war
criminals that holds them to account, but we must do so in a
way that meets the standards that are laid out by the Supreme
Court decision.
The Court has given Congress a clear charge to craft a
system that provides basic due process. We can and we must get
this right. The worst thing we can do, Mr. Chairman, is for
another Supreme Court decision to kick back what we do.
So to do so, I believe we must look carefully at tried and
true existing systems of law like the Uniform Code of Military
Justice that may provide a basis for a solution. We must
consider the modifications that need to be made to make
commissions most effective as a tool in the war on terror.
Mr. Chairman, this is not the first time that we have had
tribunals or commissions regarding an enemy. In 1942 and 1946
again, we had commissions that were upheld at that time. But
under this recent Supreme Court decision, it is possible to
legislate a system that will keep terrorists off the
battlefield and meet the Court standards.
This hearing is a good first step, and I compliment you,
but we will need more hearings like them and will need to work
together in a bipartisan, open process to figure out the best
solution. This will take time and will take consideration. It
is well worth it for our troops and for the outcome of the war
on terror, and I look forward, Mr. Chairman, to undertaking
this effort and hearing from our witnesses.
[The prepared statement of Mr. Skelton can be found in the
Appendix on page 53.]
The Chairman. I thank the gentleman, and again, gentlemen,
good morning. Mr. Bradbury, thank you, sir, for being with us.
The floor is yours.
STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
Mr. Bradbury. Thank you, Mr. Chairman, Ranking Member
Skelton and members of the committee.
The Supreme Court in Hamdan v. Rumsfeld held that the
military commissions that the President had established were
inconsistent with the Uniform Code of Military Justice and the
Geneva Conventions. It is important to realize, as the Chairman
emphasized, that the Court did not question the authority of
the United States to detain enemy combatants in the war on
terror, and its decision does not require us to close
Guantanamo Bay (GTMO) or release any terrorists. The Court
implicitly recognized that the vicious attacks of al Qaeda
triggered our right to use military force in self-defense, and
that we are involved in an armed conflict with al Qaeda.
The Court furthermore made clear that its decision rested
only on an interpretation of current statutes and treaty-based
law. The Court did not address the President's constitutional
authority and did not reach any constitutional question.
Therefore, Hamdan now gives the Congress and the Administration
a clear opportunity to work together to address the matters
raised by the case, including the appropriate procedures to
govern military commissions.
In moving forward after Hamdan, the basic question we must
answer is how best to pursue the prosecution of al Qaeda and
other terrorist combatants in this armed conflict. In trying al
Qaeda terrorists for their war crimes, it is not appropriate as
a matter of national policy, not practical as a matter of
military reality, not required by the Constitution, and not
feasible in protecting sensitive intelligence sources and
methods to require that military commissions follow all of the
procedures of a court-martial.
In my written testimony I have identified several
provisions of the Uniform Code of Military Justice and court-
martial procedures that are impractical to apply in the
military commission context.
Mr. Chairman, all the issues with military commissions
identified by the Supreme Court can be addressed and resolved
through legislation. The Administration stands ready to work
with Congress to do just that so that trials of captured al
Qaeda terrorists can move forward again.
In its decision, the Court also addressed the application
of the Geneva Conventions to al Qaeda fighters in our war on
terror. On this point it is important to emphasize that the
Court did not decide that the Geneva Conventions as a whole
apply to our conflict with al Qaeda or that members of al Qaeda
are entitled to the privileges of prisoner of war status. The
Court held rather that the basic standards contained in Common
Article 3 of the Geneva Conventions apply to the conflict with
al Qaeda.
Of course, the terrorists who fight for al Qaeda have
nothing but contempt for the laws of war. They have killed
thousands of innocent civilians in the United States and
thousands more in numerous countries around the world. They
openly mock the rule of law, the Geneva Conventions, and the
standards of civilized people everywhere, and they will attack
us again if given the chance.
When the Geneva Conventions were concluded in 1949, the
drafters of the conventions certainly did not anticipate armed
conflicts with international terrorist organizations such as al
Qaeda. Be that as it may, we are now faced with the task of
implementing the Court's decision on Common Article 3.
Last year, Congress engaged in a significant public debate
on the standards that should govern the treatment of captured
al Qaeda terrorists. Congress codified that standard in the
McCain amendment, part of the Detainee Treatment Act, which
prohibits cruel, inhuman or degrading treatment or punishment,
but, importantly, it defined that standard by reference to the
established meaning of our Constitution for all detainees held
by the United States.
We all believe that enactment of the Detainee Treatment Act
settled questions about the baseline standard that would govern
the treatment of detainees by the United States in the war on
terror. That assumption is no longer true.
In its ruling in Hamdan, the Supreme Court has now imposed
another baseline standard, Common Article 3 of the Geneva
Conventions. On the one hand, when reasonably read and properly
applied, Common Article 3 will prohibit the most serious and
grave offenses. Most of the provisions of Common Article 3
prohibit actions that are universally condemned such as
violence to life, murder, mutilation, torture and the taking of
hostages.
These are a catalog of the most fundamental violations of
international humanitarian law. In fact, they neatly sum up the
standard tactics and methods of warfare utilized by our enemy.
On the other hand, although Common Article 3 should be
understood to apply only to serious misconduct, it is
undeniable that some of the terms in Common Article 3 are
inherently vague. Common Article 3 prohibits, quote, ``outrages
upon personal dignity,in particular, humiliating and degrading
treatment,'' a phrase that is susceptible of uncertain and
unpredictable application. In Common Article 3 it is not
defined by reference to our own Constitution as it is in the
McCain amendment.
Furthermore, the Supreme Court has said that in
interpreting a treaty provision, the meaning given to the
treaty language by international tribunals must be accorded,
quote, ``respectful consideration,'' and the interpretations
adopted by other State parties to the treaty are due
considerable weight. Accordingly, the meaning of Common Article
3, the baseline standard that now applies to the conduct of
U.S. personnel in the war on terror, would be informed by the
evolving interpretations of tribunals and governments outside
the United States. Many of these interpretations to date have
been consistent with the reading that we would give to Common
Article 3. Nevertheless, the application of Common Article 3
will create a degree of uncertainty for those who fight to
defend us from terrorist attack.
The meaning of Common Article 3, of course, is not merely
academic, because the War Crimes Act makes any violation of
Common Article 3 a felony offense.
We believe that the standards governing the treatment of
detainees by the United States in the war on terror should be
certain, and that those standards should be defined by U.S. law
consistent with our Constitution and our international
obligations. We look forward to working with Congress to
protect the American people and to ensure that unlawful
terrorist combatants can be brought to justice consistent with
the Supreme Court's guidance.
I look forward to discussing those issues with the
committee this morning, and thank you, Mr. Chairman.
The Chairman. Mr. Bradbury, thank you.
[The prepared statement of Mr. Bradbury can be found in the
Appendix on page 60.]
The Chairman. Mr. Dell'Orto, thank you for being with us
today, sir.
Mr. Dell'Orto. Thank you, Mr. Chairman.
The Chairman. Pull that up closer, make sure it is on.
STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL
COUNSEL, DEPARTMENT OF DEFENSE
Mr. Dell'Orto. Thank you, Mr. Chairman, Ranking Member
Skelton and members of the committee. On behalf of the
Department of Defense, please allow me to express my gratitude
for the opportunity to appear before you today and for the
prompt and careful consideration by the committee of necessary
measures in response to the Supreme Court's decision in Hamdan
v. Rumsfeld.
I join wholeheartedly Mr. Bradbury's statement and add just
a few words of my own. The United States military has convened
criminal tribunals other than courts-martial since the days of
the very first Commander-in-Chief George Washington. From the
Revolutionary, Mexican-American, and Civil Wars, on through
World War II and the present, our Nation and its military have
considered these tribunals an indispensable tool for the
dispensation of justice in the chaotic and irregular
circumstances of armed conflict.
The military commission system reviewed by the Court in
Hamdan fits squarely within this long tradition. Tradition,
however, is not the only justification for employing criminal
adjudication processes other than courts-martial in times of
armed conflicts. Alternative processes are necessary to avoid
the absurd results of adopting protections for terrorists that
American citizens do not receive in civilian courts.
The court-martial system generally is not well known or
understood outside the military. One common misperception is
that courts-martial must necessarily render a lesser form of
justice because they fall outside the judicial branch, but the
opposite is actually true. To protect in court those who
protect us in battle and to avoid even the appearance of
unlawful command influence, courts-martial are more solicitous
of the rights of the accused than are civilian courts.
For every court-martial rule that is arguably less
protective of the accused than its civilian analog, there are
several that are indispensably more protective. For example,
legal counsel is provided without cost not just for the
indigent, but for all. The rights to counsel and against self-
incrimination are afforded earlier in the military justice
system than in civilian practice. Instead of indictment by
grand jury, which convenes in secret without the defendant and
defense counsel, the military justice system requires that for
a general court-martial a thorough and impartial investigation
be open to the public and the media, at which the accused and
defense counsel may conduct pretrial discovery and call and
cross-examine witnesses.
The court-martial process allows open and full discovery of
the government's information by the accused, a process more
open and automatic than discovery in civilian criminal
prosecutions. The speedy trial rules are much more strict in
the military justice system than in the civilian system. The
statute of limitations that applies to most military offenses
is shorter than the Federal statute for terrorism offenses, and
the rules for exclusion of evidence are more generous toward
the accused than their civilian counterparts.
While tradition and common sense, therefore, provide strong
support for alternative adjudication processes for terrorists
and other unlawful enemy combatants, military necessity is
perhaps the strongest reason of all. It is simply not feasible
in time of war to gather evidence in a manner that meets strict
criminal procedural requirements.
Service personnel are generally not trained to execute
military combat and intelligence missions while simultaneously
adhering to law enforcement standards and constraints.
Asking our fighting men and women to take on additional
duties traditionally performed by police officers, detectives,
evidence custodians, and prosecutors will not only distract
from their mission, but endanger their lives as well.
Intelligence gathering would also suffer terribly. It would
greatly impede intelligence collection essential to the war
effort to tell detainees before interrogation that they are
entitled to legal counsel, that they need not answer questions,
and that their answers may be used against them in a criminal
trial.
Similarly, full application of court-martial rules would
force the government either to drop prosecutions or to disclose
intelligence information to our enemies in such a way as to
compromise ongoing or future military operations, the identity
of intelligence sources, and the lives of many. Military
necessity demands a better way.
As Mr. Bradbury stated, the Hamdan decision provides
Congress and the President an opportunity to address these
critical matters together, and we look forward to working with
you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Mr. Dell'Orto.
[The prepared statement of Mr. Dell'Orto can be found in
the Appendix on page 71.]
The Chairman. Mr. Olson, thank you very much for being with
us today, and the floor is yours, sir.
STATEMENT OF THEODORE B. OLSON, FORMER SOLICITOR GENERAL OF THE
UNITED STATES
Mr. Olson. Thank you, Chairman Hunter, Ranking Member
Skelton, and members of this committee. I appreciate the
opportunity to appear before the committee to testify about a
Supreme Court decision that has far-reaching implications for
the President's ability to defend our national security and to
perform his duties as Commander-in-Chief. No issue, I believe,
deserves more thoughtful consideration from our elected
representatives than ensuring that the American people are
defended from a savage terrorist enemy that deliberately
targets civilian lives and mutilates our soldiers in an effort
to destroy our way of life.
It is altogether necessary and appropriate for Congress to
consider a legislative response to the Hamdan decision. Indeed,
all eight Justices who participated in the case recognized that
congressional action could cure any perceived inadequacies in
the military commissions established by the President.
In my written submissions to you, I address the questions
of military commissions and the applicability of the Geneva
Conventions and how that issue might be dealt with. I would
like to today just focus on another aspect of the Hamdan
decision that I don't believe will be covered by the other
witnesses.
In response to the Justices' invitation to implement a
legislative solution, it is my view that Congress should
restore the status quo that existed prior to the Supreme
Court's decision in Hamdan and Rasul v. Bush two years ago that
for the first time in the history of the United States, and
contrary to long-established precedence, held that Federal
courts in the United States had jurisdiction over the capture,
detention and treatment of noncitizen aliens captured on the
battlefield and held beyond the sovereign territory of the
United States.
The Supreme Court in that Rasul decision overturned Johnson
v. Eisentrager, a Supreme Court precedent written by Robert
Jackson that had stood for over 50 years, and held for the
first time that the habeas corpus statute gave the Federal
courts jurisdiction to supervise the custody of alien
combatants held abroad by our military forces.
In the Hamdan decision, the Court held that the Detainee
Treatment Act enacted by this Congress in response to the Rasul
case, reasserting by Congress that the courts had no
jurisdiction to hear habeas corpus petitions from enemy alien
combatants held abroad, the Supreme Court in Hamdan reversed
that decision and said that it did not apply, your legislation
did not apply, to pending cases.
Since the emergence of the writ of habeas corpus several
centuries ago in English common law courts, the writ has never
been available to enemy aliens held outside a country's
sovereignty. By requiring the President to justify his military
decisions in Federal courts, Rasul imposes a substantial and
unprecedented burden on the President's ability to react with
vigor and dispatch to homeland security threats.
The congressional response to Rasul, as I mentioned before,
was the Detainee Treatment Act that explicitly provided that no
court shall have jurisdiction to hear or consider an
application for a writ of habeas corpus filed by or on behalf
of an alien detained by the Department of Defense at Guantanamo
Bay. No court, no jurisdiction.
Notwithstanding that clearly stated legislative language,
the Hamdan Court held that the Detainee Treatment Act does not
apply to those petitions that were pending at the time of the
decision. That holding requires the Federal courts to
adjudicate hundreds of other habeas corpus petitions filed by
Guantanamo Bay detainees pending at the time that legislation
was enacted.
Until the Supreme Court's Rasul decision, no court had ever
suggested that aliens captured during hostilities and held
outside the United States could challenge their captivity
through a petition for writ of habeas corpus filed in a U.S.
court. Indeed, none of the two million prisoners of war held by
the United States at the conclusion of World War II was deemed
authorized to file a habeas petition in a U.S. court
challenging the terms or conditions of their confinement.
One can only imagine the chaos that would have been
introduced into the effort to win World War II if each of these
detainees or lawyers on their behalf had been permitted to file
petitions in the United States courts immediately upon their
capture in Europe, Africa, or in the islands of the Pacific.
Yet that is precisely the circumstance that Rasul and Hamdan
have created and that the President and the armed forces must
face today in their fight against terrorism.
The Rasul and Hamdan decisions impose a tremendous burden
on our military personnel in the field. To begin with, as the
Supreme Court explained in the Eisentrager decision 50 years
ago, authorizing courts at the behest of enemy aliens to
second-guess the decisions of military commanders will diminish
the prestige of our commanders not only with the enemies, but
with wavering neutrals.
The Court goes on: It would be difficult to devise more
effective fettering of a field commander than to allow the very
enemies he is ordered to reduce to submission to call him to
account in his own civilian courts and divert his efforts and
attention from the military offensive abroad to the legal
defensive at home.
Mr. Dell'Orto mentioned some of the complications, but they
include: Will commanders be summoned from the field to give
evidence and to explain the circumstances of the capture of
combatants? Will detainees have access to counsel? Do they have
the right to appointed counsel, Miranda warnings, the right to
speedy trials? Will the Government be required to disclose
sensitive intelligence information to demonstrate that its
detention of enemy combatants is justified?
Those are just a few examples. I submit that Congress
should act to restore the status of the habeas corpus
jurisdiction that has existed throughout this Nation's history
until two years ago. The Constitution places the decision to
detain a noncitizen enemy combatant on the battlefield squarely
within the domain of the President as Commander-in-Chief of the
Armed Forces. Congress should restore the constitutional
balance by amending the Detainee Treatment Act to clarify, as
the Congress, I think, thought it did then, that Federal courts
lack jurisdiction over habeas corpus petitions filed by
detainees held outside the sovereign territory of the United
States, no matter when those petitions were filed.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Olson can be found in the
Appendix on page 74.]
The Chairman. Mr. Olson, thank you very much.
Rear Admiral Hutson, thank for being with us this morning.
STATEMENT OF REAR ADM. JOHN D. HUTSON, (RET.), PRESIDENT AND
DEAN, FRANKLIN PIERCE LAW CENTER, FORMER JUDGE ADVOCATE
GENERAL, U.S. NAVY
Admiral Hutson. Thank you, Mr. Chairman. Mr. Skelton, thank
you. Thank you for holding what I think are incredibly
important hearings on the issue of the day right now in
prosecution of the war.
I want to start out by saying unequivocally that I want to
be able to successfully prosecute terrorists; however, I
believe that successful prosecution entails a full and fair
hearing which complies with the dictates of Common Article 3 to
the extent that it is a regularly constituted court that
comports with the judicial guarantees recognized as
indispensable by all civilized peoples. I don't believe that
there is any part of that, a regularly constituted court or
judicial guarantees recognized as indispensable by civilized
peoples, that the United States should or could try to avoid or
evade in any way.
We shouldn't make this too hard or too complicated or try
to get too cute with it. We know what those guarantees are. We
should enthusiastically embrace them, we should celebrate them,
we should shout them from the rooftops. We can do that from a
position of strength, not from a position of weakness. It is
those guarantees that make us strong.
We are the strongest Nation militarily on the face of the
Earth, there is no doubt about that. Our strength as a Nation
comes not from our military strength or from our economy or
from our natural resources or the essential island nature of
our geography; our strength comes from what we have stood for
for generations. That is what gives us strength, and we should
be proud of that and celebrate it.
I was an early supporter of the concept of military
commissions, and I still am. I think it is the way to go. I was
not a supporter of the way in which they were implemented in
the second order. We should use commissions as a means whereby
we demonstrate to the world what it is we are fighting so
valiantly to preserve.
I was talking with a lawyer yesterday from Human Rights
First about the Hamdan decision and my testimony in this
hearing, and she made a comment to me that I thought was very
profound and compelling, which was that Hamdan was not--the
Hamdan decision was not a revolution, it was a return. It was
returning us to where we should be. It shouldn't have been a
shock, it should have been ho-hum. It was return to business as
usual.
The United States stands for the rule of law, and we have
for years. It is not a rule of law if you only apply it when it
is convenient. It is something else. For too long this has been
a discussion between the executive branch and the courts, and
it is time, as you know by conducting these hearings, to return
the conversation to the proper forum, which is to say Congress.
If Hamdan stands for anything, it stands for the
proposition that Congress has to engage thoughtfully and
deliberately in these issues. There are those who advocate the
Congress simply reaffirm what the President did prior to Hamdan
with military commissions. I think that would be a dramatic
mistake. There are those that would say we should start out and
pull out a clean sheet of paper and start writing. I think that
is not the easy way to do this.
This can be easy, and I mean E-A-S-Y. It can be easy. On
every bookshelf of every U.S. military lawyer stationed
anyplace in the world sits a burgundy soft-covered book. That
book is the envy of every armed force on the face of the Earth.
It contains the Uniform Code of Military Justice and the Manual
for Courts-Martial. We should use that as the model.
I am glad that the prior witnesses have talked about the
strength and the beauty of the Uniform Code of Military Justice
and the Manual for Courts-Martial. Those documents can be
modified in such a way as to avoid the list of horribles that
have been listed. Article 32 can be modified or eliminated.
I agree the media talks about it generally as the military
equivalent of the grand jury investigation, and that is not
even close. Article 32 is so much more than the grand jury
investigation. The modifications--and I don't want to use the
word relax, relaxing the UCMJ or the rules of evidence--the
modifications to the UCMJ and the military rules of evidence
and procedure have to be very narrow, they have to be very
specifically tailored, they have to be justified, and if those
things are done, I don't think any court is going to have any
problem with using the UCMJ and the Manual for Courts-Martial.
We decided, this Nation decided, early on that this was
going--we were going to deal with terrorism as a war rather
than as a criminal activity, and I think that was a good
decision, but that in itself is a new paradigm, and what we
have done is say in this war we are now going to start
prosecuting people. We didn't prosecute Hitler's driver or
bodyguard and probably wouldn't have if we had captured him.
This is different. We are taking people who are coming in off
the battlefield, and rather than just holding them, which we
could do, we want to prosecute them. That is fine, but if we
are going to do that, we have to do it in accordance with
certain rules that are generally accepted as indispensable by
civilized people.
I am proud to be a lawyer. I think our system of justice
defines how good this country is. I think that we have the
opportunity now to demonstrate to the rest of the world what
that system looks like, and, with some minor modifications to
the UCMJ, we can do that.
We shouldn't reverse-engineer the commissions, assuming
that everybody is guilty, and then create a commission that is
geared to proving that point. We have to start at the
beginning. And I would suggest that we do that with the Uniform
Code of Military Justice.
Thank you, sir. I look forward to your questions.
The Chairman. Thank you very much, Admiral Hutson.
[The prepared statement of Admiral Hutson can be found in
the Appendix on page 96.]
The Chairman. Gentlemen, let me ask you to do something
that is a little unlawyerlike, but I think to kind of tee the
ball up here for the committee. Give me a one-liner, what did
you think Hamdan told Congress? Think about that a little bit.
If you can give that to us in one line, what do you think?
Mr. Bradbury.
Mr. Bradbury. I guess the one line, Mr. Chairman, I would
say is that it is up to Congress now to design the procedures
for military commissions and make the decisions as to what
makes sense in a trial, in an al Qaeda terrorist versus a trial
of a U.S. servicemember. Those are two different things. It is
up to Congress to decide, and we are here to work with you to
make that happen.
The Chairman. Mr. Dell'Orto.
Mr. Dell'Orto. Mr. Chairman, if I were to try to condense
this into a very short answer as you have asked me to, I would
say that, in slightly modifying what Mr. Bradbury said, the
Supreme Court apparently found no underlying flaw in the
commission process as established. It simply said the President
did not consult with the Congress.
We have been many, many years in the process of trying to
try the detainees who we believe have committed war crimes. All
Congress needs to do, assuming it has taken the opportunity to
review the commission process as it is currently configured, is
to ratify that process, and we can move on very, very quickly.
And that is what I think the Supreme Court has signaled to this
Congress.
The Chairman. So it was a requirement for the participation
of Congress with the executive that was the essence of the
opinion.
Mr. Dell'Orto. I think that is the essence of it, Mr.
Chairman.
The Chairman. Mr. Olson.
Mr. Olson. I believe the Supreme Court said that Congress
needs to approve the method of formation and the procedures to
be used with military commissions, but that judges will retain
jurisdiction to second-guess the execution of those decisions
in every case; and that when this Congress said no court shall
have jurisdiction to hear or consider habeas corpus
applications filed by the detainees in Guantanamo, Congress
didn't mean what it said; and that as long as that judicial
jurisdiction to second-guess military decisions exists, we will
have the judiciary participating in the conduct of military
operations wherever they occur. And that gave this Congress an
opportunity to say again what it tried to say in the Detainee
Treatment Act.
The Chairman. Thank you.
Rear Admiral Hutson.
Admiral Hutson. I think that they were saying to constitute
a court that is consistent with universally accepted judicial
guarantees.
The Chairman. Okay. Just to take that last description by
Rear Admiral Hutson, if you look at Geneva Article 3, Common
Article 3, and it talks about regularly constituted court, that
is presumably the product that would be--if we put together a
body of law to govern these procedures, that would satisfy
those particular words in Article 3; is that what you are
talking about, Admiral Hutson?
Admiral Hutson. Yes, sir. I think if this body creates the
court, it is regularly constituted.
The Chairman. Then you have spoken, Rear Admiral Hutson,
about standards that are manifest in the Uniform Code of
Military Justice, basically standards of fairness for
defendants' rights. Do you agree that the exigencies of the
battlefield would reasonably reduce the scope of those rights,
or do you think that the full rights of the UCMJ should be
afforded or that the base of the UCMJ should be used? I am
trying to understand precisely your position.
Admiral Hutson. Absolutely. The exigencies of the
battlefield and war on terror would necessitate--Article 3
didn't come down from Mount Sinai on a stone tablet, but there
are guarantees that are embedded in the Uniform Code of
Military Justice that comport with those judicial guarantees
generally accepted, and I think those are the presumption of
innocence, independent judiciary, all of those kind of things;
facing your accuser, knowing the evidence consistent with
military rule of evidence 505 which talks about how to deal
with classified evidence in a very complete way, so that, yes,
sir, I believe there are modifications that have to be made.
The Chairman. What I am reminded of is we went through the
Guantanamo exercise when those--all the issues surrounding
Guantanamo were elevated to a status where it was reviewed
strongly by the committee, and what struck me fairly profound
was a fairly high number of folks out of the 310 or so that
were released were proven to have returned to the battlefields
and taken up arms against our troops.
And that one thing that you said a minute ago caught my
attention was--and tell me if I am wrong, but you said to the
effect that there is nothing wrong with warehousing some of
these people over a period of time to keep them from returning
to the battlefield. And you understand the enormous pressure
that was put on the Administration to prosecute or release. Did
I understand your statement correctly?
Admiral Hutson. Well, I would modify your description of it
slightly. I believe that the United States can capture
terrorists and warehouse them. I think it is going to create--
we are going to run into a diplomatic wall and a political wall
and a pubic relations wall before we run into a legal wall. The
war on terror is certainly different in the sense that it is
going to go on for probably a much longer period of time, and
that is going to cause people some problems.
All I am saying is that we can't presume that they are
guilty and create a system to demonstrate that fact.
The Chairman. Okay. I am reminded, I think one of the early
cases that we learned in law school, I think it was Davis v.
Mississippi, where a person murdered an elderly lady and left
his fingerprints on the window sill, and the fingerprints later
were matched up with a person who had been taken out of an
unconstitutional lineup. And so that was one of the cases where
it was fairly clear that the exclusionary rule was intended to
apply even though guilty people would go free. But that was a
pain that our society was willing to suffer and a loss that we
were willing to suffer to let the murderer walk out the door to
ensure and discipline our system so that the appropriate
procedures were followed.
In this case the pain that we might see is an enemy
combatant returning--if he can't confront his accusers because
the sergeant who said, that guy was manning the rocket-
propelled grenade, that sergeant may be dead or unavailable to
be--to confront the accuser, so--or to confront the accused, so
the accused goes free. The pain would be manifested and
reflected in perhaps dead Americans on the battlefield.
And so the question becomes on your scale of balancing this
need for basic rights for the accused with our basic need to be
secure and to protect our soldiers, where do you think we
should move that forward? What are your thoughts? Hearsay
evidence, right to confront accuser, that type of thing. I
would like to ask all the members of the panel that. In fact,
go ahead, Admiral Hutson, and move right down the panel.
Admiral Hutson. I would say, sir, that the evidence would
have to have some apparent authenticity and validity in order
to be introduced. You can't just let in everything. There has
to be some sort of standard, and apparent authenticity and
validity may be a reasonable standard to use.
If you have fingerprint evidence in your example in Davis,
if you have fingerprint evidence, but the chain of custody
isn't perfected, I wouldn't have any problem introducing that
in a military commission. I would have a problem introducing it
in a court-martial of a U.S. troop, but acknowledging your
acknowledgment of the difference of the battlefield, that would
probably be acceptable to me.
But I do think, Mr. Chairman, that there is a balance, and
there may have to be to some extent a sacrifice, maybe not as
dramatic as the case you point out in Davis, but there may have
to be a sacrifice if we are going to do this in a way that we
are proud.
The Chairman. Mr. Olson.
Mr. Olson. I yield to Rear Admiral Hutson and Mr. Dell'Orto
and Mr. Bradbury with respect to the specifics of how those
judgments might be made. The point that I think is important is
that when you are fighting an enemy like this--one that defies
all civilized rules, that intends to be as savage as possible
to the most vulnerable people in the world, that has no
scruples or principles, and that will go back every time to the
battlefield, maybe not to the battlefield, but to a synagogue
or a school bus--we have to have some flexibility built into
the system so that the President as Commander-in-Chief and
military officials down the line have some flexibility.
You talked about the exigencies of the circumstances. I
think there has to be flexibility and freedom to exercise
discretion by the executive. We accord a presumption of some
discretion, some deference to the Federal Communications
Commission (FCC), to the Environmental Protection Agency (EPA),
to the Army Corps of Engineers in court decisions, but there
was no deference to the President's judgments about the
practicalities of military commissions by the Supreme Court in
the Hamdan decision, so that when you legislate in this area,
if you do, I would urge Congress to make sure that there is
room for discretion, depending upon the circumstances of the
particular case, and that exercise of that discretion will be
accorded some deference by any agency or court reviewing it to
understand the circumstances, because the price that military
officials will pay if their judgments are second-guessed and
not accorded some deference later on in court may be very, very
high. Someone may be prosecuted for a war crime for exercising
perfectly reasonable judgment with respect to the putting on of
a case with respect to an enemy combatant or capturing one.
The Chairman. Thank you.
Mr. Dell'Orto, any comments?
Mr. Dell'Orto. Mr. Chairman, I had the privilege of serving
on active duty for almost 28 years, the first 8 years as a
field artillery officer and the balance of my career as a judge
advocate officer, and spent time mostly in the criminal law
arena. Our system as it currently exists, the court-martial
system, is a fantastic system, and it has come to unfold,
develop, evolve over the years at the urging of Congress
because it has taken very good care to ensure that that system
has been developed in a way that will provide the greatest
amount of protections to our soldiers.
But I don't want a soldier, when he kicks down a door in a
hut in Afghanistan searching for Osama bin Laden, to have to
worry about whether when he does so and questions the
individuals he finds inside, who may or may not be bin Laden's
bodyguards or even that individual himself, to worry about
whether he has got to advise him of some rights before he takes
a statement. I don't want him to have to worry about filling
out some form that is going to support the chain of custody
when he picks up a laptop computer that has the contact
information for all manner of cells around the world while he
is still looking over his shoulder to see whether there is not
an enemy coming in after him.
I want us to be able to do what the President said we
should, guarantee a full and fair trial to these terrorists
that would include such things as the presumption of innocence
at the outset of the trial, that would include a standard of
proof that puts the burden on the prosecution that requires
that he be found guilty by proof beyond a reasonable doubt,
that provides him with counsel, that does so many things that
our system of justice in the United States calls for. And I
would say that the military commission procedures that have
been established to date do all of those things in a way that
takes into account what practicalities, practical difficulties,
are associated with trying to gather this evidence around the
world in various and sundry places that will place great
limitations on our ability to adhere to the standard, the
standard rules that we employ in our courts-martial process and
in our civilian court process.
I think we have already done that, and, again, that is why
I urge that particular process as the starting point to get to
the Congress's approval of the procedures that can be used to
satisfy what the Supreme Court has told us and the Congress
need to be done.
The Chairman. Thank you.
Mr. Bradbury, where is that balance?
Mr. Bradbury. Mr. Chairman, I think the fundamental point,
I think, is simply that the procedures have to be flexible
consistent with fundamental fairness. I think there is a lot of
flexibility in light of the circumstances of the apprehension
of these folks, the kinds of evidence that is necessary to
convict them, and the military necessity. And so, for example,
running down some of the things that are provided in the UCMJ
that I think need to be adjusted or eliminated in the context
of a military commission proceeding, the Article 32
investigation that precedes a prosecution needs to be off the
table and needs to be done through a different means.
The right to counsel that is given, under the UCMJ it is
given when the individual is first suspected of having
committed a crime, and he gets counsel right away and gets
Miranda rights right away, that is inconsistent with simply
needing to question individuals to get intelligence from them.
Hearsay rules. International tribunals such as the
international criminal tribunals for Yugoslavia and Rwanda
allow the use of hearsay evidence. It is recognized that it is
simply as a practical matter necessary when you talk about
crimes that have occurred in far-flung places of the world. You
are not going to be able to get every witness in life for
testimony. You are going to have to allow the use of hearsay
evidence where the fact-finder determines it is probative, it
is sufficiently reliable, and it is not outweighed by undue
prejudice. So you need that flexibility in hearsay rules.
Classified evidence. We absolutely have to carefully
control exposure of the terrorist detainee to classified
sources and methods. There are ways to do that that the
commission can police to ensure fundamental fairness, using
summaries, using substitutes. We also in the current military
commission process would allow the detainee to have counsel
cleared in to get access to classified information that is
actually going to be used as evidence. But we think you can do
that in a way that is consistent with fundamental fairness, and
that should be something that a court on review, for example,
through the Detainee Treatment Act, the standards of review,
would be able to review after the fact.
So those are a few of the critical things that absolutely
need to be flexible in order to make a military commission
process that has historically worked work in this context.
The Chairman. Thank you, gentlemen.
The gentleman from Missouri, Mr. Skelton.
Mr. Skelton. Mr. Chairman, thank you.
I am going to be brief. But I think we should remind
ourselves the purpose of all this is protection of our young
people in uniform. At the end of the day, that is really what
we need to keep in mind, to devise a system that will do that.
The Chairman said something about a one-liner. Let me ask
this, if this is not consistent. We in Congress must provide a
regularly constituted court, which could be court-martial,
UCMJ, Federal court, or a specially designed Federal court or a
tribunal; second, a minimum of due process under the Geneva
Convention Common Article 3; and third, Congress must authorize
departure from the courts-martial or Federal rules and
procedures in the event that military commissions are
established.
Did I leave anything out, gentlemen? Isn't that really what
the Court said, those three items?
Mr. Bradbury. I am not sure, Congressman, the Court spelled
it out in exactly the way you have. I think that is consistent
with what the Court held, and I think if Congress were to enact
a statute that does what we have described here, it would
satisfy all of those requirements.
Mr. Skelton. That is my question.
Thank you, Mr. Chairman.
The Chairman. Thank the gentleman.
The gentleman from Colorado, Mr. Hefley.
Mr. Hefley. Thank you, Mr. Chairman. I think one of the
struggles we have, and I think you referred to it, and I think
many of us have struggled with this, is this question of
whether it is a crime or whether it is war or whether it is a
crime during times of war. And as one of you mentioned, in the
Second World War, we didn't try the average soldier on the
battlefield. We kept them, we put them in concentration camps,
and we kept them until the war was over, but we didn't try
them. And I guess I would ask, what should we be doing with
these people regardless of their rank in the bin Laden
hierarchy? What should we be doing with them? Should we be
warehousing them, should we be keeping them in the
concentration camp like in wartime, or should we be trying them
like they were criminals? I don't have much--a good feeling
about what we ought to do on that.
Mr. Dell'Orto. Congressman Hefley, we certainly have the
right under the law of armed conflict, having captured
combatants on the battlefield, to detain them for the duration
of hostilities. That is long settled, recognized not only under
the law of war, but by our courts. We can detain them until the
end of the conflict.
During World War II, as someone has already mentioned, we
detained hundreds of thousands of lawful enemy combatants in
various camps around the country. I wouldn't call them
concentration camps. We had them at many of our posts and
installations around the country. We could have had some in
Colorado for all I know.
Mr. Hefley. We did.
Mr. Dell'Orto. I can remember buying a Christmas tree from
a former enemy POW at one of my military assignments in
Baumholder, Germany, who can describe his experience at one of
our camps at Fort Knox, Kentucky. He thought it was a great
experience. He spent his time in captivity working in the mess
hall probably peeling potatoes or at the officer's club. He
thought--he was fine with that, and he was very much a friend
of our forces over in Germany.
We did during World War II try some number of unlawful
combatants, or, I am sorry, people who had committed war
crimes, Yamashita; the German hierarchy for the crimes that
they committed that violated the laws of war. Now, if a lawful
combatant, a soldier in the German Wehrmacht, during World War
II shoots one of our soldiers during combat, he has the
immunity that goes along with participating as a lawful
combatant in a combat action. I mean, that is what happens in
war. You shoot him, he shoots you or shoots at you, and he,
because he is--assuming he is fighting lawfully, wearing a
uniform, reporting to a chain of command, follows the laws of
war, carrying his arms openly, he is a lawful combatant, a
privileged belligerent who is not going to be tried for his
lawful activities on the battlefield. But if he goes into a
farmhouse and lines up a bunch of civilians and shoots them, he
has committed a non--those are noncombatants. He has committed
a war crime and is being subject to punishment for that. Or if
he directs that sort of activity as Yamashita did and takes no
regards for the consequences of what his soldiers do on the
battlefield as they rape and pillage, he is subject to trial
for an unlawful--for his unlawful acts.
What we have here are people who don't wear uniforms. They
don't carry arms openly. They don't distinguish themselves from
the civilian population anyway. They don't follow the laws of
war. They are without any discipline in the way they conduct
their combat. They deliberately attack civilians. They behead
people, they mutilate people. And so they are in theory at all
levels unlawful combatants. We are--we have charged ten of
those people and probably have another several dozen others who
are likely to be candidates for military commissions because
their activities rate--are at such a significant level that we
believe they should be tried as war criminals under the
military commission process, the process that we have had, or
at least the tradition we have had, of conducting these sorts
of tribunals throughout our history.
So I don't know if that answers your question. It is a long
answer, but I have tried to sort of put this in context.
Mr. Hefley. No, it is very, very helpful. Since these are
unlawful combatants, so many of them, maybe most of them, do
the rules of the Geneva Conventions apply? Because those were
drawn up to deal--weren't they primarily--with lawful
combatants?
Mr. Dell'Orto. And those who are not part of the fight, so
we have the third Geneva Convention that deals with prisoners
of war that, like the people I described who were at our camps
around the United States during World War II, they would be
covered today under Geneva 3, and they would receive all sorts
of rights.
Now, they could be punished for things that they did in the
camp. If they beat up a guard, they beat up another detainee,
they could be punished under our system for those acts, but
they are not going to be punished for their lawful activities
on the battlefield.
Mr. Hefley. Thank you very much.
The Chairman. The gentleman from Arkansas, Dr. Snyder.
Dr. Snyder. Thank you, Mr. Chairman, and thank you for
holding this important hearing. I wanted to--we only have five
minutes, so I am going to ask quick questions, maybe get quick
answers.
Going along with what Mr. Hefley talked about, I will go to
you, Admiral Hutson, is it an accurate description to say that
what we are all dealing with today and the changes we are
talking about, the proposals are to deal with the legal system
to be set up for those going to trial; the Hamdan decision did
not deal with those detainees who are not going to trial? Is
that an accurate description, Admiral Hutson?
Admiral Hutson. Yes, sir. One of the reasons we are wrapped
around the axle about this is because we are trying to
prosecute people. That is the issue.
Dr. Snyder. And what we all as the Congress and what
Chairman Hunter is holding these hearings about is what changes
are we going to make for those that we are taking to trial? We
are not talking about changing processes now for those that are
not going to trial. Is that an accurate description?
Admiral Hutson. I believe that is what the committee is
about. Yes, sir.
Dr. Snyder. Mr. Olson, it is great to have you here. I
don't recall you being before our committee before, but I tell
you I want to disagree with you when you call for a restoration
of the status quo. I feel like--you know our good friend Gene
Taylor here who lost his home in Hurricane Katrina, and I think
when you have something struck down, you don't want to build it
back just the same as it was status quo, you want to do it
better. And I think we have an opportunity to do better in
terms of worldwide opinion.
I also want to comment or just make the comment I think two
or three of you in both your written statements and your
statements here today talk about the problem on the chain of
evidence in a door-to-door search or a Miranda warning. I mean,
who the hell is saying that? Nobody is saying that. I mean, I
have talked to my Republican colleagues. I am not aware of
anyone who is saying, gee, we are going to have to have the
Miranda warnings in the chaos of war, or we are going to have a
real chain of evidence problem when people are passing this
stuff along, being shot at, here you have to sign here,
Sergeant. Nobody is saying that. Let's just declare that as a
red herring.
There is not going to be nothing coming from any Member of
Congress that says we are going to have Miranda warnings on the
battlefield or chains of evidence as we normally think of them
when we all watch Miami CSI. Those are red herrings. They are
not going--it is not going to be on the table.
I want to ask, last night I ran into Representative
Butterfield, who we all call Judge Butterfield because of his
legal background. I said, Judge, this stuff is complicated. And
he said, no, it is not. It is pretty easy. And then, Mr.
Hutson, you came here today and you said it is easy, and you
spelled the word for us, E-A-S-Y, which is helpful because we
are House Members. We like to hear words.
And then you made it so easy because you attach--Mr.
Chairman, just for our record, he--is this part of his
statement that is admitted to the record where he has proposed
amendments? I want to read this one section in which you are
suggesting changes. It is 836, section 36; the title of it: The
President May Prescribe Rules, which is current law. And the
addition you suggest--and this is the new language you suggest.
I am going to read it.
``To the extent that the President considers it
impracticable for the regulations for military commissions and
provost courts to apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in
the United States district courts, the procedures in military
commissions and provost courts shall, subject to any applicable
rule of international law and with the exception of section 832
of this title (article 32), apply the principles of law and
pretrial, trial, and post-trial procedures, including modes of
proof, prescribed for general courts-martial.''
Well, the key part of that, if I am correct, Mr. Hutson, is
that--the lead-in phrase, ``To the extent the President
considers it impracticable,'' is what you are saying there that
if the President determines with the advice of these gentlemen
at the table--of course we are not going to have Miranda
warnings on the battlefield, we are not going to have strict
chains of custody for evidence. Describe it. It seems to me
what that provision that you are suggesting we adopt deals with
the concerns of the gentleman to your right. Is that a fair
description?
Admiral Hutson. Yes, sir. It is a fair description, and we
try to track basically the thrust of the Hamdan decision. With
respect when Mr. Bradbury used the word ``flexible,'' it kind
of sends a chill up my spine because it just sounds too
flexible, but I think that if the President is saying that it
is impracticable to do this for the following reasons, Article
32, Article 31, those kinds of things, he can make that
determination, report it to Congress, and we will move on, and
we will actually get some trials, we will actually complete
this job.
Dr. Snyder. May I ask one quick follow-up, Mr. Chairman?
And what you are suggesting is that these would be--the
President's rules would be not on a case-by-case basis, but----
Admiral Hutson. No.
Dr. Snyder. Lay down a report to the Congress.
Thank you, Mr. Chairman, for holding this hearing.
Mr. Dell'Orto. Mr. Chairman, may I respond?
The Chairman. Oh, certainly. Any members of the panel can
respond. Certainly.
Mr. Dell'Orto. Congressman Snyder, we have been looking at
this particular question, as you can imagine, and let me give
you some of our preliminary assessments again. These are
preliminary, and so we have got--we do have much more work to
do.
To do what you suggest or what Admiral Hutson suggests,
preliminary assessment would indicate that 110 rules for
courts-martial, 73 military rules of evidence, and somewhere
between 145 and 150 articles of the Uniform Code of Military
Justice would require some form of amendment to permit us to
take the existing structure and adapt it for military
commission process. That is a gutting of the Manual for Courts-
Martial and the Uniform Code of Military Justice.
If you look at the current structure that we have in the
military commission order, comments from the President's
military order, we have a process there that we believe
comports very, very well and compares very favorably with both
the International Criminal Tribunal for the Former Yugoslavia
and the International Criminal Tribunal for Rwanda.
To the extent we have to do this in order to approach or to
satisfy the Common Article 3 requirement that we have a system
that comports with these international norms of indispensable
rights that the citizens of the world would be happy with, then
we believe that if our structure as it is currently laid out
matches what the international community has already said is
workable, we are already there or just about there, and the
minor tinkering that would have to take place with respect to
the existing structure for military commissions is, in my
estimation, and as much as I have to--I hate to disagree with
Admiral Hutson, a much easier process to undertake than to try
to, as I described it, gut the Uniform Code of Military Justice
and the Manual for Courts-Martial.
Dr. Snyder. And I think that is the kind of discussion we
will have over the next few weeks and month or two, and I
suggest, Mr. Dell'Orto, the Chairman will want you to provide
us your analysis of that in the way we can all analyze it just
like we have Mr. Hutson.
Mr. Bradbury. Mr. Chairman and Congressman Snyder, I just
wanted to add one point, and that is that I don't think that
the implications of the Court's decision in Hamdan are limited
exclusively to the question of procedures for military
commissions, because as I tried to lay out in my testimony, the
Court's ruling on Common Article 3 was an interpretation of the
scope and application of that, of Common Article 3, and
contradicted or superseded the President's determination in
2002 that Common Article 3 does not apply. The Court
essentially said this is not an international conflict, and
therefore Common Article 3, which in the past has been read to
apply only to internal conflict, civil wars, if you will, now
has general application in our war with al Qaeda, and that has
implications and ramifications beyond simply the procedures for
military commissions.
The Chairman. Okay. Any other responses?
I thank the gentleman from Arkansas.
The gentlelady from Michigan, Mrs. Miller.
Mrs. Miller of Michigan. Thank you, Mr. Chairman. And thank
the witnesses for all appearing before the committee today. We
appreciate your service to the Nation and appreciate your
testimony here today.
I have been trying to listen to this. I am not an attorney.
There is a lot of legalese going on here. I don't even have a
college degree, but I am one of the few Members of Congress. I
am not proud of that, but that is just the way it turned out in
my life, but I think I am a reflection of middle America.
I will tell you, listening to the Supreme Court ruling, it
just struck me as being incredibly counterintuitive, and when
we think about the type of enemy that we are facing today, a
new type of enemy, one that hides in the shadows, one that
preys on the innocent, one that wants to kill us, and it has
been--they have been categorized as--how we need to be
civilized, these people do not meet the basic standards of
civilized human beings. I think it is very difficult for us as
Americans to even get our mind around the concept of a suicide
bomber teaching a young person to be a suicide bomber and what
that means. I mean, I don't consider that to be civilized
behavior.
And as we have talked today about what the Supreme Court
ruling actually says, that we need to have congressional
participation in this, perhaps this could be very easily
handled. As you mentioned, it could be easy. Could it be as
easy as what Mr. Dell'Orto--I hope I am pronouncing your name
correctly--has suggested, that we actually just ratify what the
executive branch and the DOD has done and move on? That is my
question.
Mr. Dell'Orto. Ma'am, I believe that that is--that would be
a very desirable way to proceed.
Admiral Hutson. You might not be surprised to hear that I
disagree with respect to Mr. Dell'Orto. I think that--and I
don't disagree with your characterization at all. It goes back
to what Congressman Hefley pointed out, though I think--which
is that we have got the war on terror, and then on the other
hand we are talking about prosecuting people. And what some of
my colleagues here at the table have said--and to some extent,
the way you phrase the question flies in the face of what Mr.
Dell'Orto said earlier about presumption of innocence, you
know. He said--we need to ensure that there is a presumption of
innocence if we are going to prosecute people. Remember, I am
saying that we don't have to prosecute them, but if we decide
that we are going to prosecute them, then we have to afford
them those rights, which include not presuming that they are
cutting everybody's heads off and they are suicide bombers, but
that we just buy into this presumption of innocence deal, and
if we can do that, then we can create a system in which we will
really be able to prosecute. But I think that if the opinion--
and particularly Justice Kennedy's discussion of the present or
the pre-Hamdan commissions makes it pretty clear that there are
some legal difficulties with it that would make simply this
body simply endorsing what had been done before, although you
would fix the regularly constituted part of it, I think you are
going to run headlong into the indispensable guarantees part of
what the Court said.
Mr. Olson. I think it is a very, very good question. It is
a very, very sound basis upon which to resolve this problem.
Either, as Mr. Dell'Orto said, you start with a massive gutting
of the Uniform Code of Military Justice, which was not created
for this type of situation at all, it was created for our
servicemen and women and has all sorts of rights in there. It
does have the equivalent of Miranda rights in it, or the right
to be cautioned that statements may be--either you start with
something that is utterly unworkable and inappropriate and not
designed for this process, or you start with what the President
carefully and thoughtfully put together that was designed with
the experts in the Defense Department to deal with these
circumstances, and then if there is something wrong with it,
add something to it.
So that is--that I do think is the right way to go. It
makes perfect sense. The only two things that the Supreme Court
found that specifically talked about--anyway, that was wrong
with the procedures was a quibble with respect to the standard
for the admissibility of evidence. My own personal opinion is
that what the President had outlined in the commissions made
perfect sense, given battlefield conditions and the difficulty
of obtaining evidence and that sort of thing, and the right to
the accused--right of the accused to see sensitive national
security classified information, that would be insane, in my
judgment, to give to terrorists.
So that the two things the Supreme Court found wrong that I
was able to read in the opinion anyway are things that I think
you would agree the President got it right. But if there are
some things wrong with it, then that is the platform, that is
the basis upon which to start.
Mrs. Miller of Michigan. Thank you very much.
The Chairman. Okay. I thank the gentlelady.
The gentlelady from California, who has spent a lot of time
on this issue, Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you,
gentlemen, for being before us today.
I have--I did begin to work on this several years ago after
I went to GTMO and took a look at what was going on, and
actually I have taken a lot of time to talk to the prosecutors
who have been at GTMO and have been working through this, and,
of course, I have some legislation issue.
As you will know, I introduced in 2004 and again in 2005
and brought it up in our authorizing meeting, and at that
meeting I said, you know, after June in the Hamdan case we are
going to be visiting this. So here we are.
I think that Justice Kennedy and Justice Breyer got it
right when they said nothing prevents the President from coming
back to Congress to obtain legal authority for military
commissions to proceed. And having looked at the Federal courts
and looked the courts-martial and the UCMJ, I do think this is
the place to put it in to constitute a commission in which to
do this.
My questions have to do directly with some of the--two of
the areas, the area of evidence and the area, if we get to it--
and I guess we are going to have a second round, maybe I will
get to the other later, but here are some of the questions I
have. I am going to read a couple of them and then have--you
will know who gets to answer to these.
In the oral argument before the Supreme Court, Mr. Hamdan's
defense counsel argued that military commissions weren't
necessary because he said that his--that Hamdan could be tried
by regular courts-martial. Mr. Dell'Orto and Mr. Bradbury, if
you are correct in your assertion that routine evidence rules
would make it impossible to prosecute most al Qaeda cases in
regular courts-martial, and I believe you are correct in that,
wouldn't you expect that Mr. Hamdan's first motion in a court-
martial would be to suppress most of the government's evidence?
And wouldn't such a motion be made by any competent defense
counsel, and wouldn't it likely succeed in gutting the
government's case?
It seems to me that this would be the practical effect of
sending these types of cases to court-martial. Would you agree
and maybe expand a little on that? And let me give the other
question that I have, and then maybe you can all answer to
this.
Again, the rules of evidence, all of you, including Admiral
Hutson, accept the view that different rules of evidence are
required for war crimes cases. The usual reasons cited for this
are the deviation from gathering, etc. The evidence in war
crime trials would likely include hearsay, evidence without a
clear chain of custody, and interrogation products obtained
without Miranda warnings and other safeguards against coercion.
And in this I would say to my colleague Dr. Snyder, red herring
might be when we talk about Miranda rights on the battlefield,
but when you look at Miranda being required to be used during
all the years of interrogation of a suspect, I think then it is
not really a red herring, and certainly hearsay is not.
So a single rule of evidence in military commission order
number one is that evidence shall be admitted if the evidence
has probative value to a reasonable person. This standard is
very similar to the role of admissibility used by the
International Criminal Tribunal used by the former Yugoslavia
which states that a chamber may admit any relevant evidence
which it deems to have probative value. And, of course, the
International Criminal Tribunal for Rwanda uses the nearly
identical standard as well.
In view of the similarity of these standards, there seems
to be an international consensus that war crime trials require
broader and different approaches to admissibility of evidence.
So the questions would be, what additional rules regarding
admissibility or exclusion of evidence are essential to ensure
reliable verdicts in military commission cases? And if it is
commonly accepted that coerced admissions are not reliable and
therefore lack probative value, do you believe that this
standard, probative value to a reasonable person, is sufficient
to exclude evidence derived from coercive interrogations? And
how would you fashion a rule of exclusion that prohibits
admission of statements obtained through coercive
interrogations?
Mr. Dell'Orto. You probably haven't given me enough time to
think about the approach I would take as a defense counsel to
the Hamdan. But certainly I would--I would challenge the
admissibility of any statement he has made.
For one of my first challenges, one of my first motions
would have been to dismiss on the motion of a lack of a speedy
trial. Hamdan has been in our custody for three years, four
years, whatever it has been at this point. The military--the
rules for court-martial require that he be brought to trial
within 120 days, if I recall correctly--again, I am going back
some period of time--of the time that he was put in custody,
and so that is one of my very early motions I would make to get
my client out of jail.
So I see great problems. And again, if I were quicker on
the draw, I could probably give you four, five, six, or seven,
eight or nine other motions I would be dropping very quickly in
that case based upon rules of evidence, rules of courts-
martial.
Let me ask some of the others to answer some of the other
questions, and I will get back to you to follow on, and to be
quite honest, I had an answer to the third part of your answer,
but I can't recall right now.
[The information referred to can be found in the Appendix
beginning on page 115.]
Ms. Sanchez. Thank you.
Mr. Bradbury. Congresswoman, I would say I would agree with
your description of what a defense counsel would do in Hamdan's
case or another one of these cases if brought in the construct
of the UCMJ. I mean, absolutely that is what I think would
happen. All those motions would be interposed, and chain of
custody of evidence, and all of those issues that would impede
a trial under the UCMJ framework would have to be addressed,
and it would be very difficult to go forward under those
conditions.
I wouldn't say that the standard needs to be that none of
these--that prosecutions would be impossible. I think the
standard is that it is as a general matter a judgment. In this
case it would be a judgment by Congress working with the
Administration and framing legislation, a judgment that the use
of those procedures is impracticable as a general matter in
these kinds of cases.
As to the coercive statements point, first of all, as the
rules of the military commission process currently in place
make clear, and as our treaty obligations suggest, we do not
use as evidence in military commissions evidence that is
determined to have been obtained through torture. That is
simply not admissible if it has been obtained through torture.
And that is consistent with our treaty obligation. It is a
worldwide policy for the United States, and it is reflected in
the rules currently for the military commissions.
But when you talk about coercion and statements obtained
through coercive questioning, there is obviously a spectrum or
gradation of what some might consider pressuring or coercion
short of torture. And I don't think you can make an absolute
rule. Again, I think it needs to be a judgment that is made by
the fact-finder, and the way that that is addressed in the
Detainee Treatment Act, which addressed judicial review of the
combatant status review tribunals, those tribunals that judge
that the detainee is an enemy combatant at the outset of the
process, the way Congress dealt with that was to say that the
commission is to weigh the probative value of that evidence,
basically to weigh the probative value against the undue
prejudice that might occur to the process from the use of
evidence that may have been obtained through coercion. It
didn't create an absolute exclusionary rule.
I think an approach like that is certainly more appropriate
because arguments will always be made--when you don't have
something like Miranda rights, arguments will always be made
that, oh, the questioning was coercive, even when we can agree
it doesn't amount to torture, it doesn't--it doesn't violate
some fundamental standard of conduct that might apply. So you
need--again, it is an area where some flexibility is needed.
Ms. Sanchez. It sounds to me like you are saying that the
minimum value would be the probative value to a reasonable
person, which is what we see reflected in the standards, quite
frankly, of the other tribunals that we see around the world
with respect to war crimes.
Mr. Bradbury. Yes. I think that is right.
Ms. Sanchez. And I think it is very important for us to
understand because someday we will catch Osama bin Laden, and
then we have to decide how we are going to try him. And this is
why these hearings and what we do becomes so important.
Anybody else?
Admiral Hutson. Yeah. If I may, I would draw a bright,
clear line with coercive evidence for all the reasons that we
draw that bright clear line having to do with the probative
value of it, but also having to do with inhibiting
interrogators or police, civilian context, from engaging in
that kind of activity. I think that that is an important thing,
and I also think that it is important for the reputation of the
United States internationally.
As I am sure you know, there is a raging debate with regard
to the impact of non-U.S. law on the United States. I kind of
fall in the middle of that. I guess what they are doing in
international tribunals is interesting to me, but certainly not
determinative. I would add to the probative value, it has to--
you know, it has to have that at least, but I would add
apparent authenticity and validity. There has got to be some
standard by which the evidence is judged and admitted. We can't
just throw everything in there and then let the finder of fact
sort through it. That is the reason you have a judge, which is
one of the reasons that using a court-martial kind of system
with modifications has value, I think.
The Chairman. The gentlelady could reserve. We will have
the responses to the last--her last question here in the second
round if we could, and let's go to the gentleman from Texas,
Mr. Conaway.
Mr. Conaway. Thank you, Mr. Chairman.
Mr. Dell'Orto or Mr. Bradbury, could you describe for us
what the President's plan is that you simply want us to put
into law? And also, what is the legal phrase for applying--
creating a crime, and then say you were committed before the
law was put in place. There is a legal phrase that I have lost.
Mr. Bradbury. Ex post facto.
Mr. Conaway. There you go. Would these changes--ex post
facto apply to the detainees in Guantanamo if we do, in fact,
make these changes in the law?
Mr. Bradbury. If I could say yes, they would apply, and
that would not be an ex post facto, because ex post facto
concepts go to the substance of the law, not by the procedures
by which you are tried. So it would not be--if you are creating
a brand-new crime and saying now people are subject to a brand-
new crime, you can't apply that ex post facto to a U.S. citizen
under our Constitution.
But here we are not talking about creating the substance or
elements of crimes. We are talking about the procedures that
would go into the bodies that would try those persons for those
crimes, which are war crimes, crimes under laws of war.
Mr. Conaway. Okay. Would one of you describe the
President's current plan?
Mr. Bradbury. Well, I think the plan is to work with
Congress.
Mr. Conaway. No. Oh, no, I am sorry. The tribunal that was
struck down that you are saying we need to codify, would you
describe for us what that tribunal currently looks like had it
not been stuck down?
Mr. Dell'Orto. The current tribunal that has been struck
down? Again, it has many of the fundamental--it would be very
recognizable to most people in terms of many of the things that
are already incorporated. You know, we have a presiding
official who is a military trial judge, an experienced trial
judge, the same judge who would be trying cases in our courts-
martial process.
We have the rule of evidence that we have already
described, which is a very--which is a more general rule than
we are used to in our civilian practice that is--admits a
broader swath of evidence.
We have appellate review in the review panel that has--of
decisions that come out of the tribunal that includes four very
distinguished individuals, Judge Griffin Bell, former Attorney
General of the United States. We have Secretary--former
Secretary of Transportation William Coleman. We have Judge
Biester, who is a trial judge in Pennsylvania, and we have
Chief Justice Frank Williams, who is the Chief Justice of the
Rhode Island--Rhode Island Supreme Court as the four members
who constitute the review panel of the appellate court, if you
will, of the results of these trials.
We have provisions for interpreters. We have provisions for
ensuring that the accused is presented the charges which he
will be facing well in advance of trial.
We have provisions of assignment of military counsel, the
same counsel--the same type of counsel who would defend our
soldiers, sailors, airmen and marines and coastguardsmen, and
they are courts-martialed, and they are defined as military
defense counsel for the accused detainees. The accused detainee
has the right to obtain a civilian counsel, assuming that
civilian counsel meets certain qualifications that are set out
in the rules. We have a requirement that for any charge for him
to be convicted. Two-thirds of the members who sit on the court
panel, which includes the presiding officer and up to, I guess,
six other members who would be military officers just as we
have in our court-martial process, would be the ones who would
adjudicate guilt or innocence, and a judge's sentence ought to
be reviewed by the review panel--the appointing authority of
the review panel when all of that is done.
I don't know if that gives you a sense of sort of the basic
framework. I could go on with much more detail if we had more
time, Congressman.
Mr. Bradbury. I would say, Congressman, that fundamentally
these are procedures that are built on past military
commissions that have historically and traditionally been used
by the United States during times of armed conflict. And the
use of military commissions and procedures like that go all the
way back to George Washington when he was general during the
Revolutionary War, and it has been a tradition through armed
conflicts in our Nation's history of using traditions like
this, although these commissions add additional procedural
protections that have not been in past commissions.
Mr. Conaway. Okay.
Mr. Dell'Orto. And I would also add, Congressman, since I
was there at the start and took part in much of the drafting
process, that we looked at the Manual for Courts-Martial as we
were putting this together to borrow from it many of those
things that are--that are sort of at the foundation of the UCMJ
and the Manual for Courts-Martial.
Mr. Conaway. Thank you, sir. Appreciate it, Mr. Chairman.
The Chairman. Thank the gentleman.
And the gentlelady from California, Mrs. Tauscher, is
recognized.
Ms. Tauscher. Thank you, Mr. Chairman. Thank you for being
here.
I think we all can stipulate that we are with Common
Article 3 interested in dealing with the potential of finding
Osama bin Laden and being able to bring him to trial in a trial
that we all understand is one of transparency, and where
evidence potentially is gathered, and where we can find an
adjudication process where the world sees Osama bin Laden put
to trial in a fair way and a timely way, where he is
potentially found guilty, and then he has a sentence that is
commensurate with his heinous crimes. And I think that is the
place we all have to start from.
As my great colleague from California, Ms. Sanchez, has
said, we have to kind of look to the future as we look into the
past as we try to preserve all the great things that we have.
And I am personally for looking at the reforming of the UCMJ
and making sure, as Admiral Hutson has suggested, that we have
things that have worked and build on them and move forward.
I think one of everyone's concerns is this issue of--that
we are hearing bantered around in the press that potentially
classified information would have to be made available, as both
Mr. Dell'Orto and Mr. Bradbury have suggested, to defendants,
and that, of course, would create a national security crisis
for us. But I think we--the analysis that I have been shown is
that both the Classified Information Procedures Act, CIPA, and
the military rules for evidence for courts-martial, which is
modeled after CIPA, protect the disclosure of any classified
information whose disclosure would be detrimental to national
security. Apparently this would apply in anything that we do
going forward that would include reform of the UCMJ for
potential military commissions. Do you all agree?
Mr. Dell'Orto. Congresswoman, let me make two brief
comments on that. One generally. When we try these defendants
in these commissions at some point relatively soon, we must be
mindful of the fact that we are trying them while the conflict
continues. It is not as though we were conducting these trials
at the end of World War II where much information that might
have been highly sensitive, highly classified, that we
certainly did not want to reveal to the enemy, would not be as
critical a piece of information. Today if we are in the
classified arena with some of this information, whether it is
information collected through national technical means or
sensitive sources and--sources that we have on the ground in
other countries, that is--those are key ways that we are
getting information about this particular enemy.
Ms. Tauscher. But that is the challenge of the asymmetry of
this fight.
Mr. Dell'Orto. Exactly. And we can't let him use our
process, our due process, our legal system as one of his other
weapons as he carries on this fight.
Another factor to consider with respect to the military
rule of evidence, I think it is 505, as Admiral Hutson
indicated.
Ms. Tauscher. That is right.
Mr. Dell'Orto. With respect to handling classified
information, normally when we are trying somebody in or a
soldier in our courts, we are trying him for something he has
done with evidence that he has already had access to. He has
mishandled that information. He has given it over to the enemy.
He has been derelict in the way he handles it, and so he has
already seen that evidence. We are not presenting to him
anything that he hasn't already seen. And so the concern there
is not that the accused doesn't see it, because he already has
seen it, but that the world doesn't see it.
The third point I would make, and I am sad to have to say
this, our track record in military courts-martial, in trying
cases in which there is classified information, is not
particularly good. We have had success in some cases, but I
will tell you both at the trial level and at the appellate
level, if you look back through the case histories, the
histories of those cases, we have on balance done a much more
poor job of prosecuting people than we would--than we have as a
general proposition in cases that don't involve classified
information.
Ms. Tauscher. I think this is really an area of
jurisdiction where we have to be enormously creative at the
same time that we have to deal with the rule of law and the law
of war. And this military rule of evidence 505, as you suggest,
is one of those sticky wicket places where I think we are going
to have to have counsel from various venues, Admiral Hutson. I
hope you will help us with this, too, Mr. Olson.
But for the record if you would each get back to the
committee and me specifically as to your suggestions on how we
deal with this issue, because obviously this is a baby in the
bath water issue. We don't want to have to divulge sources and
methods, other operations that are going on, people in theater,
identities of people at the same time that we are trying to
adjudicate in a swift and in a fair way these potential
captives.
So I really want to yield right now because I know we have
other people, but I think this is a very important issue. If
anybody ever--if anybody else has a quick comment, I am happy
to accept it.
[The information referred to can be found in the Appendix
beginning on page 119.]
Admiral Hutson. If I may, let me just say that I think it
is very, very difficult for the United States of America to say
to anybody, we know you are guilty, we can't tell you why, but
there is somebody that says you are guilty; we can't tell you
who, but we know they are reliable; we can't tell you how we
know that, but you are guilty.
The Chairman. Thank the gentlelady. The gentleman from
Connecticut, Mr. Simmons.
Mr. Simmons. Thank you, Mr. Chairman, for this hearing,
which I consider to be historic; times of stress or times when
our values really need to be preserved and protected. And I
remember after the Boston Massacre in 1770 in Boston,
Massachusetts, John Adams defended the British Redcoats. It was
an unpopular decision for him to make, but that is what he did.
And during World War II, 1942, April, May of 1942, when Hitler
sent eight saboteurs to Florida and Long Island, Kenneth Royal,
an Army colonel, took the very unpopular position of defending
those saboteurs, six of the eight of whom were electrocuted
here in Washington, D.C. So I commend the Chairman and the
Ranking Member and the members of the committee as well as the
panel for taking on this difficult issue.
I served for over 37 years in the U.S. Army. I consider the
UCMJ as something that was created for us as military
personnel, and I can't see clearly the application to enemy
combatants or terrorists, as one of my colleagues said. These
are folks that do not respect the rules of law. They take
hostages, they kill noncombatants and innocent civilians, they
cut people's heads off, et cetera, et cetera.
So I guess my question goes to the issue of what kind of
model is going to work best. A colleague of mine who is a Coast
Guard attorney has written an op-ed calling for a national
security courts system, which take a little bit from the UCMJ
and a little bit from military tribunals, and what he refers to
is a new kind of law for a new kind of war. A new kind of law
for a new kind of war. We have our traditional criminal courts.
We have our tribunals and commissions. We have our UCMJ. But it
occurs to me that we are in a new kind of war. We are trying to
maintain our respect for our values in dealing with people
involved in this new kind of war, and perhaps it is incumbent
upon the Justice Department, Defense Department, and this
Congress to shape an altogether different model for differing
justice in this framework, and I would be interested in your
comments. But before I hear the comments, I would like to ask
the Chairman if we could insert this op-ed piece into the
record.
The Chairman. Without objection, we will put it in.
[The information referred to can be found in the Appendix
on page 101.]
Mr. Simmons. Gentlemen, a new kind of law for a new kind of
war?
Admiral Hutson. Mr. Simmons, I am generally familiar with
that kind of concept, and I find it very intriguing. I am not
sure it is the most efficient way to do it. And I take your
point about the UCMJ.
The UCMJ, as it is presently constituted, is clearly there
to protect the rights of U.S. servicemembers and to efficiently
prosecute them when they need to be prosecuted, and has done
that very well over the years. What I am suggesting is that you
could build on top of that an enduring, regularly constituted
court to do the same kind of thing that that proposal would do.
I think that, you know, certifies the sort of court--is
certainly possible to create a court that is regularly
constituted because this is the body that authorizes it, and
that it protects the fundamental, you know--the words out of
Article--Common Article 3 that we have been talking about,
considered--the judicial guarantees considered to be
indispensable by civilized peoples. A court, some other kind of
court, could do that, absolutely, sir.
Mr. Simmons. And you reference the FISA Court that was
created in the 1970's to deal with a specific problem.
Admiral Hutson. Right.
Mr. Bradbury. Congressman, I will jump in and say I agree
with you completely. It is a new kind of war, and it does
require a new kind of rules. That is what the President was
trying to do, I think, and the Secretary of Defense with the
existing military commission structure, and now what this
Congress needs to focus on, I think a military commission-type
approach is the right way to go.
I think that rules that will need to be focused on,
obviously, like use of classified information, I don't believe
that using the Classified Information Procedures Act or CIPA is
the right way to go. That is designed for criminal trials of
U.S. citizens in U.S. Article 3 courts and the use of
classified information in that context, and it really impedes
the government's ability to go forward with prosecutions, which
in these circumstances ought to be allowed to go forward under
different rules, and we can work on what those rules ought to
be.
The final thing I would say in terms of setting new rules
for this war on terror is that we really think Congress needs
to do something to bring certainty and clarity to the
application of Common Article 3 and some of the vague phrases
in Common Article 3 that I referenced in my testimony, because
an important part of what needs to be done to bring sureness
and certainty to those folks on the front line who are handling
detainees--because again, the concepts in Common Article 3 have
never been applied previously to an international conflict with
a terrorist organization like al Qaeda, and we need to set
those rules going forward for the United States, and we think
they should be defined by U.S. law.
Mr. Simmons. I thank the Chairman, and I thank the panel.
The Chairman. Thank the gentleman.
The gentleman from New Jersey, Mr. Andrews.
Mr. Andrews. Thank you, Mr. Chairman.
In listening to the testimony and reading it this morning,
it appears to me that we have two points of consensus and two
very practical dilemmas. First, I think there is a consensus
that none of us wants to treat Osama bin Laden's bodyguard the
way we would an American citizen accused of car theft. There is
just no sense that the normal rules ought to apply.
And then second, I don't think anyone is saying that we
should run an arbitrary process that does not command respect
around the world as being transparent and fair. I think we are
all saying essentially the same thing. The practical
considerations I would like to focus on go to the discovery
problem and the Miranda warning problem.
Mr. Bradbury, I want to ask you a question about the
discovery problem. Let us assume that we have a person who is
not a U.S. citizen who is accused of participating with al
Qaeda, and among the pieces of evidence against that person is
testimony from a peer that this person has been engaged in
terrorist activity. Also on the record is the fact that the
accuser of the person has some normal garden variety grounds to
be biased and prejudiced against that person. Let's say there
has been a romantic entanglement involving three people or a
dispute over a commercial dispute; someone has a motive to tell
a lie about the person. Should that fact be discoverable by the
defense in the military commissions that we are talking about?
Mr. Bradbury. Well, in your question, Congressman, is the
other person who has given the evidence an intelligence source
for the United States who needs protection? Because that raises
yet another set of issues. But assuming that is not the case,
then the identity of that person would be made known to the
detainee defendant and his counsel, and the statement that may
have been taken from that person--the person let's assume is
not available to appear at the military commission trial, so
you are going to need to use some kind of hearsay statement,
some kind of sworn statement or other statement that can be
verified, and the fact-finder determines it is probative, it is
reliable to rely on it, then I think in that hypothetical that
the detainee defendant would--if he knows who that person is,
would be able to raise issues about the bias of that person or
the accuracy or correctness of the statements--of the
statements made.
If that person is an intelligence source for the United
States, then that raises additional issues that would need to
be dealt with, because information about an intelligence source
cannot--we cannot allow that to get out to other terrorists who
wouldn't take very long to dispatch that.
Mr. Andrews. What if it is the first assumption, and the
accuser is not an intelligence source, but the accuser's
identity was discovered by an intelligence source? So, in other
words, in the fact-gathering process to make charges against
the detainee, an intelligence source tells our intelligence
agencies, you know, yeah, this guy over here has some
interesting information about the detainee. What about that?
Mr. Bradbury. Well, I think there would be a way consistent
with fundamental fairness not to have to disclose to the
detainee in these proceedings such that we might compromise our
intelligence sources the providence of that--of that chain, in
other words, how we came to that person, because that would in
and of itself reveal a confidential intelligence source. But
the tribunal may know that and judge that it is reliable.
Mr. Andrews. If that issue itself were litigated in
discovery, it should be the tribunal who determines whether it
is a discoverable fact or not?
Mr. Bradbury. In the first instance, I think so, yes.
Mr. Andrews. And that would be an in camera proceeding?
Mr. Bradbury. Well, in terms of the intelligence
information that is at issue, if there is any, the classified
information could be presented to the tribunal in an ex parte,
in camera process that, in fact, is done, for example, with the
International Criminal Tribunals for Rwanda and Yugoslavia
where lots of times you have state secrets of the various
nations involved or that may be very sensitive, and defendants
may try to get discovery of that sensitive information, and in
those tribunals it is available to go ex parte in camera to the
tribunal to make a case for not presenting that information.
Mr. Andrews. Were the discovery results you just
articulated included in the order that was invalidated by the
Supreme Court?
Mr. Dell'Orto. I believe they were, Congressman, to a large
extent. I mean, the prosecution is obligated to provide to the
defense all the evidence it is prepared to present as part of
the trial, and to the extent you get into these collateral
issues of the identity of the--of the intelligence source
themselves that must be protected, I mean, that information I
would think would be part of the file that would be--that is
presented to the defense counsel.
Mr. Andrews. Admiral Hutson, I want to ask a question about
Miranda warnings. Is it your understanding under the military
justice code that a person who is suspected, once the suspicion
is established, it triggers the right to be represented by
counsel; is that your understanding?
Admiral Hutson. Yes, sir.
Mr. Andrews. Do you think that right should extend to
suspected detainees; they have a right to have counsel present
with them during their interrogation?
Admiral Hutson. I think that once you take them--you know,
we keep talking about the battlefield, and the world is the
battlefield in some respects, but once you take them from where
they are and put them at Guantanamo, if you are interrogating
them for purposes of prosecution, then I think you do. If you
are interrogating them for intelligence purposes, and you may
be able to draw a bright line between the two where the
intelligence--the intelligence interrogators are not sharing
information with the prosecution interrogators. So I see a
difference in that regard.
Mr. Andrews. The bright line seems awfully difficult. If
you ask the detainee whether he was part of conversations about
a possible plot to blow up the Holland Tunnel, is that an
interrogation for the purpose of prosecution, or is it an
interrogation for the purpose of intelligence gathering?
Admiral Hutson. Well, you ask them two different times. One
time you ask them is the intelligence inquiry, and the other
time is the prosecution inquiry.
Mr. Andrews. Who decides whether the lawyer should be
present before the interrogation?
Admiral Hutson. I think the rules decide that, the rules
that you set up decide that.
Mr. Bradbury. Congressman, if I may, I think this--just to
illustrate this would be entirely unworkable. I think when we
have detainees at GTMO or elsewhere in the war on terror, we
need for intelligence purposes to be able to question them in
an unfettered way, and when we have exhausted the intelligence
we think we can get, and we think we have got a case to make,
we can then initiate a war crime prosecution, and at that point
they can have counsel and they can have the availability of
counsel, and we can move forward with a fair process. But we
cannot intermix the two and try to draw that line because it is
just going to impede our ability to protect the country through
vital intelligence gathering.
Mr. Andrews. Thank you. I see my time has expired. I
appreciate it.
The Chairman. I thank the gentleman.
Another gentleman from New Jersey, Mr. Saxton.
Mr. Saxton. Thank you, Mr. Chairman, and I think it is
great that we are holding this hearing today. It is very
important set of subjects, I guess you would call it.
I would like to ask a little bit different question, if I
may. Based on my observations, the necessity for collecting
information in prosecuting this war is historically different
than it has ever been before. During the process of carrying
out our oversight responsibilities, it seems to me there are
certain conclusions one can come to in a practical sense, and
one of those conclusions is that detainees provide a constant
flow of information that is necessary for us to conduct
successful operations.
They are not the only source, but they are one of the
sources and an important source. It has been suggested here
today by Mr. Hutson, and I respect his opinion, that the UCMJ
has been used as kind of a model for prosecutorial proceedings.
Given the need, that we all know about, to collect information
on this enemy, what effect would the adoption of a process such
as that suggested by Mr. Hutson have on our ability to collect
information?
Admiral Hutson. Sir, I don't think it would have a
significant effect one way or the other. You can prosecute them
first, and interrogate them, get the intelligence information
after you have convicted them if they are convicted. You can
get the intelligence information and then prosecute them.
We run again, and your question points up the point that
Congressman Hefley made earlier about conducting the war and at
the same time that you are conducting the war, you are
prosecuting in a judicial sense the people that you have taken
off the battlefield, and that creates its own difficulties.
But I think that we run into serious problems when we try
to combine the two, the warfighting on one hand and the
prosecution on the other. If we want not to prosecute them,
that's fine. But if you are going to prosecute them, I think
that you need to do it in accordance with the generally
accepted rules.
Mr. Bradbury. Congressman, I think, again, with respect
that points out the complete unworkability of applying in whole
cloth the UCMJ procedures to military commissions. If the
proposition is we have to try them and convict them and get
them in prison as a convicted war criminal first before we
interrogate them to get vital intelligence then we put
Americans at risk and our soldiers at risk because we are not
getting intelligence that we may need and we may need it right
now. That has to come first.
Whatever the procedures that are in place and the lines
that are drawn, they can't impede that vital necessity. And so
I think a lot of the other specifics we have talked about here
today help establish and clarify why the various procedures
need to be flexible in certain respects to make this all work.
Mr. Dell'Orto. Congressman, let me get back to the premise
of your question because I think it is important. What is
different about today than other combat we have engaged in in
the past? Particularly going back to World War II and Korea, as
a matter of general intelligence, you sort of know who the
enemy is, who is arrayed on the other side of the line of
battle. You know his order of battle. You know his division
commanders, his battalion commanders. You probably know down to
the company command level who these guys are.
And when you take captives during that process, you
generally know that the private, the corporal or sergeant
doesn't know much beyond what happened that day or what may be
planned for tomorrow. If you get the general, you get the
brigade commander who is a colonel, he is going to have more
information. You are going to know to focus your information on
him.
When we pick up these guys, and Hamdan is probably a
classic example--if he goes by his military occupational
specialty, he is a driver. And what does that mean? He
technically probably wouldn't know much and probably wouldn't
be doing much as part of the battle, if you will, or the war,
and yet it turns out he happens to be the driver for bin Laden.
He happens to be a guy who moves weapons. He happens to be a
guy who I think runs money as well. He does many, many things.
You cannot conduct this fight without doing interrogations
of these folks, but you can't separate the nonactors from the
actors in this. You have got to be able to talk to all of them,
and you have got to do it, as Mr. Bradbury says, right now
because that little gem of intelligence that guy may have about
a cell phone number, about a safe house location, may lead you
to a very, very significant find or very, very significant
target.
And so we have from the earliest days said our goal is to
get intelligence from these folks. If we can prosecute them
down the road and they have committed sufficiently serious acts
to warrant prosecution, we will do that. But we are going to
have to do everything we can to grab intelligence from them
because this is a different type of war and the intelligence
gathering is absolutely critical.
Mr. Saxton. Mr. Chairman, if I could just suggest one of
the things that we might want to do as a committee before we
make any decisions on how to proceed is to have a session
similar to this in a closed session. I think if some of the
members who maybe haven't had the opportunities that I have to
view and understand, and maybe a lot of our members have, but
for those who haven't had an opportunity to really sit down and
look in detail at individual cases, this becomes an even more
important subject to the national security of this country. And
so if I may just make that suggestion.
The Chairman. Let me say to my colleague from New Jersey, I
think that is a great recommendation and let's do it.
Let me, if I could, just impose on my colleagues with the
last question you asked because I think it is not entirely
clear to me. Is the panel saying that if this person that you
pick up in combat operations, in being interrogated says, yes,
I'm a bomb maker, and I made the bomb that blew up the such and
such, and you extract that information pursuant to your
battlefield interrogation or shortly thereafter, that under the
UCMJ that would not be admissible in a later prosecution?
Mr. Dell'Orto. Mr. Chairman, my argument as a defense
counsel would be the following: When you picked him up, you,
the soldier, the specialist, the corporal, the sergeant grabbed
him by the scruff of the collar and took him into captivity,
you had an idea who this guy was. You knew he was a bad guy;
you knew he was an unlawful combatant. You knew based upon the
intelligence going in you were likely to find somebody of this
character. And he told you he was a bomb maker.
Now you asked him about that; you asked him who he was. You
asked him what his job was. I would argue that you as a soldier
because you are subject to the code were obligated upon
suspicion this guy was an unlawful combatant generally,
regardless of what that might be, that you are obligated to
advise him under his rights under article 31 of the Uniform
Code of Military Justice.
The Chairman. Because he at that point has become the focus
of suspicion of criminal activity.
Mr. Dell'Orto. Again, if you want to carry this to the
extreme, as I would as a defense counsel, I would argue any one
of these guys because they are all unlawful combatants. We have
yet to find on the battlefield in Afghanistan a lawful
combatant. They are in theory all guilty of unlawful
belligerency which would trigger the obligation to advise them
of their rights, in my opinion.
The Chairman. I think Mr. Hutson may have a comment.
Admiral Hutson. Thank you, sir.
The Chairman. Let me just ask, and I want you to go first,
is it the position of any of you that that should--that should
a person give an admission like that, I'm a bomb maker, upon a
battlefield interrogation, if you will, that that should not be
admissible in a later prosecution.
Go ahead, Mr. Hutson.
Admiral Hutson. Thank you. If you were to superimpose UCMJ
in total precisely as it is right now, that would be the
unfortunate result. What I am suggesting though is that you
modify it in such a way so that that would not be the result
because I don't think any of us would find that to be
acceptable.
The Chairman. Okay. So nobody recommends that.
The gentleman from New York, Mr. Israel.
Mr. Israel. Thank you, Mr. Chairman.
Mr. Chairman, much to my mother's shame I never went to law
school. I am not an attorney, which puts me at a decided
disadvantage from a legal perspective, but it also gives me, I
think, the advantage sometimes relying on common sense to sift
through some of these complicated issues.
While I am not a lawyer, I am a student of history, and one
of the things that concerns me in this debate is repeated
references to the fact that we need to understand that there
are enemies that we have and adversaries and threats to the
security of the state and threats to our national security
interests. We all understand that, and all of us on this
committee are strongly supportive of an aggressive military
response to those enemies, but the fact of the matter is that
every single repeal or diminishing of essential legal and human
civil rights in history has always been based on the argument
that there are enemies of the state.
The whole experience of national socialists was to build
new courts, peoples' courts, special courts, military courts
based on the argument that there are enemies of the state,
there are enemies within, and we have to protect ourselves from
those enemies.
I am not arguing that our legal process echoes their legal
process, but we have in our own experience and in this very
hearing alluded to legal decisions made in our government that
protected the interests of the state against adversaries at the
expense of basic rights.
Japanese Americans were interred and detained. General
Grant expelled entire populations from Tennessee based on the
concern of national security. Rights were impinged upon in the
1950's based on threats of Communism.
These decisions to reduce, repeal, diminish rights have
never been made based in a vacuum. They have always been made
based on the national security argument, which is why I think
we have to be very careful in the rhetoric that we use.
One of the concerns that I have, Mr. Dell'Orto, which Mr.
Snyder has already raised is the suggestion that is anyone in
fact supporting Miranda rights after a Marine kicks in the
door, as you said; whether anybody is suggesting that the legal
process has to allow for fingerprinting and the traditional
evidence gathering that we experience in our own civilian
justice system.
So my question, Mr. Dell'Orto, is, who is making these
proposals? Where have you heard any Member of Congress
suggesting that we need to offer Miranda rights to someone
after we kick in a door in Afghanistan or Iraq or elsewhere?
Mr. Dell'Orto. Congressman, I am not suggesting that any
Member of Congress has suggested that. What I am suggesting is
that to the extent that some have said that the court martial
process is, as currently configured, is the preferred method of
dealing with the trials of unlawful combatants, that that is a
model that we should follow without change I think is the
problem that I suggest exists. So I am not attributing that to
any individual. I will say no specific individual.
I have heard, and no member of this body that I have heard,
but I have heard some say and I think it may have been--I
forget which congressman earlier mentioned the argument that
the defense counsel for Hamdan made at the Supreme Court, that
the court martial system is the way to go, that he should be
tried by a court martial. That is ludicrous.
Now here is the question. If we do agree that such things
as Miranda rights, such things as very well-defined rules of
evidence that require chain of custody, that require all these
things that we know from our courts, from CSI Miami, from
anything we read in the paper on any given day, if we think
that there needs to be modification, then how do we get there.
Mr. Israel. I am sorry, my time is expiring. That is the
second question I wanted to raise. I have heard different
panelists talk about modifications, but it seems that we are
talking in opposite directions but kind of agreeing on the same
thing. Mr. Bradbury suggested that we not use the UCMJ in whole
cloth, but that is not what Admiral Hutson is suggesting. In
fact, his testimony said that specifically this is not to say,
however, that the court martial system that is contained in the
UCMJ and MCM couldn't or shouldn't be modified in some narrow
and specific ways. What I am trying to figure out is, why are
you both saying opposite things but agreeing on what has to be
done at the end of the day?
Mr. Bradbury. Let me say, Congressman, that that is where
we are today. Because of the Supreme Court's decision in
Hamdan, the military commission process is dead in the water.
We cannot move forward according to the court's judgment unless
the President uses the Uniform Code of Military Justice and the
court martial process. That is what the court said.
So that is where we are. And the court said, because it
read the statutes of the Uniform Code to require uniformity,
the President has to justify any variation and the court wasn't
convinced with the justification the President offered. So
where we are today is we are stuck using the Uniform Code
unless we can justify variations or unless this Congress sets
out rules and procedures that allow us to vary from it.
There may be agreement, and it sounds like there may be on
some fundamental points so we can move forward very quickly
with legislation which is terrific, but as of right now, the
court has said the President has to use the Uniform Code of
Military Justice. That is why we are using that as the thing we
need to talk about, because we need to justify those
variations.
Mr. Dell'Orto. My point is, do we take away provision after
provision from the Uniform Code of Military Justice and the
Manual of Courts Martial to get to that medium, wherever it is?
Or do we take the existing process the President has already
proposed and say either the way it is right now or with minor
tweaking there you can get to that result faster and easier.
And that is all I am saying.
I do have a concern though if we start from the former,
that is dismantling the UCMJ or revising it, we will then be
disrupting that particular process, which again has a very,
very important history, a very important function with respect
to our own service members, and I would hate for us to build a
body of law based upon the UCMJ that then starts to cause
difficulties in the application of that system with respect to
our own service members.
The Chairman. Thank the gentleman. The gentleman from
Michigan, Dr. Schwarz.
Dr. Schwarz. Just as an aside, I was raised on Fort Custer,
Michigan, Mr. Dell'Orto, during World War II, where 6,000
German prisoners, mostly Afrika Korps, were housed, and had
very close contact with them because my father, a lieutenant
colonel in the Army Medical Corps was fluent in German and was
called frequently to deal with medical problems that they might
have, and then in another life, one of my jobs among many jobs
in my second tour of duty in Vietnam was to take prisoners that
were held by the South Vietnamese, North Vietnamese, Viet Cong,
get them out of the hell hole prisons that the South Vietnamese
had into American custody where they were treated exceptionally
and sometimes, if they were of no value to us, simply released,
as we have done with, I believe, 250 of the detainees in
Guantanamo.
That said, I can't ask a question of high nuance about the
law; I am not an attorney. Very simply, to get to the lowest
common denominator of this hearing this morning, my belief is
that this learned panel of attorneys would say that it is the
job of the Congress as the result of the Hamdan decision to
pass legislation which sets up a body or bodies to deal with
the non-national actor detainees that the United States might
take in any conflict that we find ourselves now or the future
in the Global War on Terror. Is that an appropriate and correct
premise?
Admiral Hutson. Absolutely, yes, sir.
Dr. Schwarz. That is what the Congress should do. That is
the Congress's job. That is what the court is telling us very
clearly in Hamdan.
Admiral Hutson. I think the court is saying that this for
too long has been a discussion between the executive and the
judiciary, and it needs to have Congress right smack in the
middle of it.
Dr. Schwarz. Thank you very much because that is what I get
out of it as well, and I think it is very simple. That is the
lowest common denominator. That is where the rubber meets the
road. That is what we should do. And I have no further
questions. I would just say to Mr. Bradbury, Go Blue, and to
Admiral Hutson, Go Green. Michigan and Michigan State.
Thank you, Mr. Chairman. I yield back.
Mr. Bradley [presiding]. Mr. Larsen is next.
Mr. Larsen. Mr. Chairman, because I think the committee
would benefit from someone known as Judge rather than Rick, I
would like to yield my time to Mr. Butterfield of North
Carolina.
Mr. Butterfield. Thank the gentleman for yielding and thank
the four of you for your testimony today. This is certainly an
important case, and it is one that we need to resolve very
quickly. I have taken the time to read the Hamdan decision. It
is 73 pages long. I have read it multiple times. We were out
last week, and I had some free time. And I took my time and
read the decision and the dissenting and concurring opinions.
Even though, at first blush, the opinion may appear to be
very complicated, when you filter through all of the
discussion, it is really a very simple case, and so I agree
with Admiral Hutson that this should be easy. The whole world
is watching us.
I was in Europe last week with 200 or 300 parliamentarians
from the European Union, and I can assure you, they have great
interest in this case, and they are watching very closely to
see if we administer justice fairly to these individuals who
have been detained.
You know, the Uniform Code of Military Justice is a very
comprehensive piece of rules. I think it is something that we
can certainly use, probably not completely, but we can
certainly use the UCMJ as a template to begin developing the
rules of procedure for these types of cases.
Let me start off by asking the representative from the
Department of Justice, Mr. Bradbury, what is your definition of
a regularly constituted court. There is a lot of discussion in
the opinion about that. What do you consider to be regularly
constituted?
Mr. Bradbury. Well, I don't know that there is a settled
international interpretation of that phrase. I think, in the
court's opinions, there seem to be a coalescing of view that if
it is set up by statute, it is regularly constituted. So I
think it was our view that the recognition and preservation of
jurisdiction for military commissions that already is in the
Uniform Code and that we think was implicitly in the
authorization for the use of military force made them regularly
constituted. The court didn't see it that way, at least not in
the form the President set it up. But I think anything this
body sets up by statute or recognizes by statute here will be
by definition regularly constituted for purposes of common
article 3.
Mr. Butterfield. The Supreme Court also talked about the
judicial guarantees that are recognized as indispensable by
civilized peoples. Can you give me a brief interpretation of
that?
Mr. Bradbury. Well, it was not a majority of the court that
addressed that issue, it was Justice Stephens in his--the
portion of his opinion that was only a plurality for four
justices. In that portion of his opinion, he went off and
looked at other provisions of treaty law that have not been
ratified by the United States to tried to pull out of those
concepts of customary international law.
But Justice Kennedy did not see a need to join that part of
the opinion. So I don't think we have an opinion from the court
on what that phrase means.
Mr. Butterfield. What do you think it means?
Mr. Bradbury. I will have confidence--it really I think
just refers to procedures that ensure fundamental fairness
measured against standards not of the U.S. article 3 courts in
criminal prosecutions or even the UCMJ which is even more
protective but looking at what nations around the world view as
indispensable. I think there is a minimum common denominator. I
have full confidence that any set of procedures that Congress
adopts or ratifies by legislation will satisfy that standard. I
will also say that I firmly believe that the procedures that
have been used and set forth in the military commission process
that the Secretary of Defense designed also satisfies that
standard.
Mr. Butterfield. There was also some discussion in the
opinion about the crime of conspiracy not being triable by a
commission. What does that do to our military if we cannot in
the future try conspirators in the commission?
Mr. Bradbury. Again, Congressman, that also was a portion
of Justice Stephens' opinion, which was only a plurality.
Justice Kennedy did not join that part, that was part 5 of
Justice Stephens' opinion. That was only a plurality of four in
which he concluded that conspiracy was not a charge available
under the laws of war. I think Justice Thomas did a very good
job in his dissenting opinion in explaining why that is not the
case; that in fact conspiracy is a recognized charge that can
be brought under the laws of war, and of course, in this
conflict, we are going to have a very difficult time convicting
many of these folks of war crimes if we cannot convict them on
the basis of conspiracy because this is an international
conspiracy, al Qaeda, and many of them have joined that
conspiracy and actively furthered it through overt acts that
they may not have--obviously, they weren't in the plane that
flew into the World Trade Center on 9/11.
Mr. Butterfield. Looks like we have run out of time. Let me
just conclude by asking you this: Do you contend that
commission order number 1 is sufficient to comply with the
Supreme Court holding if we were to approve that?
Mr. Bradbury. We think if Congress in its judgment approved
it, the Court would respect that, and it would be sufficient to
comply. I am not suggesting Congress just rubber stamp. I think
when you look at it and look at all these issues we have talked
about, it is open to you to come to the conclusion that each of
the procedures that the President and the Secretary of Defense
settled on in military commission order number 1 satisfies the
standards and that you are comfortable with that, and if you
were to do that, I believe backed up by statute and Congress,
that would be upheld by the court.
Mr. Butterfield. Thank you.
Mr. Udall. Mr. Chairman, I have a unanimous consent request
that I be allowed to include a statement in the record of this
hearing.
[The prepared statement of Mr. Udall can be found in the
Appendix on page 98.]
Mr. Bradley. Without objection.
Mr. Udall. Thank you, Mr. Chairman.
Mr. Bradley. Since we are pushing up against a vote, I am
going to yield my time and recognize, I believe, next Mr. Ryan.
Mr. Ryan. Thank you, Mr. Chairman. I want to thank the
panel, too. I think this has been a really helpful discussion
for us, and I know the work unfortunately or fortunately is
just beginning here. So we are going to certainly rely on you
in the future.
I think hearing the discussion today, Mr. Chairman, that we
have a great opportunity here and as the Admiral has stated, an
opportunity to highlight what is best about the United States
and why we are different.
One of the questions I did have to the Admiral is, as we
are talking about the intelligence-gathering proposition, the
other panelists have said this somehow could be impeded by some
of the changes. How do we ensure that we can protect these
rights that civilized societies may agree upon but at the same
time gather and get the information we need?
Admiral Hutson. I think with careful draftsmanship you will
be able to draw a distinction between the purposes and also, in
answer to the earlier dialogue about the battlefield kinds of
statements, permit them in. In my mind, there is a big
difference between what goes on in the hootch, in the
battlefield, and what goes on at Guantanamo.
Where you have taken them off the battlefield, you have got
some time. They are no longer an immediate threat. All you are
looking for is information. You are not protecting yourself
personally or protecting your fellow soldiers.
You create a regime by which--because I agree, intelligence
is important. Valuable, usable intelligence is important. You
create a regime by which that is derived and then you deal with
the military commission aspects.
Mr. Ryan. So you are not saying, as we pull someone off the
battlefield in Afghanistan or in Iraq, that immediately we are
going to have--they are going to have to have counsel?
Admiral Hutson. No.
Mr. Ryan. You are saying that weeks, possibly months later,
they get back to Guantanamo--do you gentlemen disagree with
that? This is kind of where I am unclear of what, Mr. Bradbury,
may be your position or the Administration's position would be.
If we are not saying that that person needs legal counsel
immediately, isn't that plenty of time to gather any immediate
information, the cell phones, the locations, the safe houses,
those kinds of things. Couldn't we get that information in the
first couple of weeks?
Mr. Bradbury. I don't think we should impose that kind of
arbitrary limitation on our ability to get intelligence
information. It is our view that you could transfer the person
back to GTMO, continue to interrogate the person. You do not
need to provide counsel if you haven't charged them; for
military commission purposes, if you have charged them--and you
shouldn't have to charge them with a crime within some
artificially short period of time such as you do under speedy
trial rules.
I think, under the existing UCMJ framework, as I think
every one on the panel agreed, you would have to provide them
with counsel at the first point where you suspect that they may
have----
Mr. Ryan. We are not just going to take UCMJ and plop it
in; we are going to modify it. I guess what I am saying is, how
long? that is really the question here.
Mr. Bradbury. It would be our view, again, that if you look
to, for example, the kind of timing concepts that are used in
the international criminal tribunals, criminal trials in those
contexts are to be brought without undue delay, or phrases like
that, which allow for flexibility. But I don't think you should
say within two weeks, within two months, within a fixed number
of days you have to charge the person with the criminal charges
and provide counsel and then cut off intelligence gathering at
that point. I don't think that makes sense.
Mr. Ryan. Isn't there a point where if we have someone for
five years or two years, that we have gotten all we can get out
of them?
Mr. Bradbury. Well, sure. But keep in mind that these are
combatants who, under the laws of war, we have every right to
hold during the ongoing hostility so we may have them for a
long period of time, and we have had the folks at GTMO for a
considerable period of time. And if they have ongoing
intelligence value, we should be able to take advantage of
that. And if we have a case to be made that they have committed
serious war crimes, we should be able to charge them and move
forward with those prosecutions.
We should be able to try the 60, 80 or 100 people at GTMO
who we believe should be charged with war crimes and tried. We
should be able to try them under whatever rules Congress now
sets up even though they have been held now for some years.
Mr. Bradley. Mr. Ryan, I am trying to get everybody to have
their five minutes.
Mr. Ryan. Will we have another round?
Mr. Bradley. Hopefully not. We will have many more rounds,
but I hope not today. I think we need to let the witnesses go
on.
Mrs. Davis.
Ms. Davis of California. Thank you, Chairman, and thank you
all for being here. I wonder if we can go back a bit. I think
the role of Congress and oversight responsibility in the time
of war and oversight over the law of war is very important, and
obviously, the courts looked at that, and I wonder if you could
comment some. Is it fair to say that we have lost a number of
years, perhaps even five in total in trying to--well, during
this kind of imbalance really, I think, between the executive,
the judiciary and the legislative branches. I am interested
really in knowing whether you feel there was a time at which
Congress could have much more appropriately stepped in or
obviously the executive branch could have come to the Congress?
And how you see that role?
And I wonder, Admiral Hutson, if you could elaborate a bit
on what you think the court gave the Congress as a charge in
balancing executive power.
Admiral Hutson. Thank you. I think the court put it
squarely in your lap. It would have perhaps been helpful in
hindsight and retrospect if Congress had acted more quickly in
this area or if the executive had come to Congress and said, we
need help, but that didn't happen. And to quote a popular
phrase these days, we are where we are.
So the only thing we can do is move forward. I think
Congress needs to move forward quickly but deliberately on this
because it is an important issue. But I think it is completely
now, constitutionally and by the Hamdan decision, in your ball
park.
Ms. Davis of California. Anybody else want to comment on
that specifically? No.
Mr. Bradbury. I guess I would just say, when the
Administration set up the military commission process back in
2001 it certainly intended to move forward with it quickly and
hoped that that would be the case. And for a variety of
reasons, it hasn't been, and court intervention has been part
of that, and I agree, we are where we are.
Certainly, Congress does have authority to define and
punish violations, crimes against the law of nations, and we
are here to work with Congress now so that we can get this
process moving forward again.
Ms. Davis of California. Given that we might tweak the
military Commission Order Number 1 of the President or move to
what would be a sizeable modification I think on the Uniform
Code of Military Justice, what kind of other external controls
do you think would be important? Is there something else that,
from an appeals point of view, that the Congress ought to be
looking at, whether I think suggestions that a tribunal would
be subject to the supervisory authority of the Court of Appeals
for the Armed Forces; is that an appropriate direction that the
Congress should be taking to consider that?
Mr. Bradbury. Well, I guess I would say, Congresswoman,
that Congress in some sense has decided this issue in the
Detainee Treatment Act where Congress set up a process for
judicial review on appeal of military commission judgments.
Final judgments of conviction of military convictions can be
appeal to the U.S. Court of Appeals for the D.C. Circuit and
ultimately if necessary by certiori to the Supreme Court. One
approach would be to keep that structure of appeal and judicial
review in place. I think an important part of that would be, as
Mr. Olson suggested, ensuring this time around through I guess
it would have to be ironclad language in your statute that all
the other collateral habeas litigation does not move forward.
But this is the exclusive avenue for judicial review of the
military commission process.
Again, judicial review of military commission proceedings
is a historic, new development. I mean, historically, there has
not been that, and so--but I think the DTA sets up a process.
Ms. Davis of California. Do you see any impact of Hamdan on
the detainee act? Should it be changed in any way as a result
of the Hamdan case?
Mr. Bradbury. Certainly, one way is I think what Mr. Olson
suggested and what I just suggested; I think the court read the
provisions in the Detainee Treatment Act which I think were
clearly intended by Congress to cut off jurisdiction for all
pending habeas litigation and other litigation challenging the
detention of these enemy combatants other than the one avenue
for appeal to the D.C. Circuit that Congress intended to set
up, but the court read that--the court just got right around
that. And I think that you need to look at that again because I
think that litigation needs to be shut off, and you need to
control the review through one manageable channel of review.
Ms. Davis of California. Thank you, Mr. Chairman. I see my
time is up.
Mr. Bradley. Mr. Cooper.
Mr. Cooper. Thank you, Mr. Chairman. I appreciate the
patience of the witnesses and also the tremendous personal
sacrifice that Mr. Olson in particular has already suffered in
the war on terror.
The Constitution says in article 1, section 8, that
Congress shall set rules of capture on land and sea. I would
like to ask the witnesses what they think that phrase means.
Admiral Hutson. Precisely what it says.
Mr. Cooper. Others?
Mr. Bradbury. Well, I don't think it has been actually
fully developed. I think there are few sources on what it
means.
Mr. Cooper. I asked what you thought it meant.
Mr. Bradbury. I do think that it provides some authority
for dealing with the captures in the war on terror. There is a
view that it is limited to seizing of property and ships at
sea, that kind of capture. Ultimately, I don't know if that
view is sustainable, but I will say, Congressman, that never in
the history of the country has Congress entered into the areas
where we are now contemplating providing rules by legislation.
These have been areas traditionally left up to the executive in
time of war so we need to proceed extremely cautiously in these
areas.
Mr. Cooper. Not everything in life has a precedent. There
was, however, a very powerful precedent in Youngstown Steel.
Justice Jackson is widely quoted as saying the President's
wartime power is at its zenith when he has gotten even the
concurrence or consultation of Congress.
This is an ironic age that we are in because although we
have a Republican White House and a Republican Congress, there
has been remarkably little consultation. The Hamdan decision
might not have ever occurred if there had been prior
consultation. As you point out, now we will be consulting with
each other.
But it is not only this case of the President's wartime
powers. Senator Graham was particularly forceful on this
yesterday. There are so many areas that the White House has
simply not conferred with Congress, a Republican Congress, on
war powers.
So can I ask what your thinking is on why the White House
has refused to confer? Because doesn't the White House want its
wartime powers to be at their zenith?
Mr. Bradbury. Well, Congressman, in the Hamdan case, it was
the position of the United States in that case that the
provisions of the UCMJ and the authorization for the use of
military force that Congress passed in the wake of 9/11 did
provide positive and affirmative support for the President's
military commission process. So it was the position that we in
fact had the support of Congress in that case. I think the
court may view that differently.
I will say that obviously I can't comment on the full range
of issues that you raised by your question, but I think the
President has endeavored to keep Congress informed through the
traditional channels; for example, through briefings and
notification to the relevant committees with respect to
different activity, certainly this committee, on wartime
activities.
Mr. Cooper. Mr. Bradbury, the Republican chairman of the
House Intelligence Committee released a letter last week saying
he had not been properly informed as the chairman of the House
Intelligence Committee.
You were quoted in the newspaper yesterday as saying the
President is always right. And I hope that is a misquote
because I have never met an infallible human being yet.
Mr. Bradbury. Neither have I, Congressman. I am glad you
brought that up. I guess that shows I shouldn't try to be
humorous when I am testifying. That was a tongue-in-cheek
comment. Nobody is always right, and I certainly didn't mean to
say that other than in humor.
Mr. Cooper. Let me move on since the time is so short. The
sovereignty issue with Guantanamo, who is the sovereign power
in Guantanamo?
Mr. Olson, you stressed that in your comments.
Mr. Olson. The agreement between the government of Cuba and
the United States makes it absolutely clear and no court so far
has disturbed that conclusion that the sovereignty remains with
Cuba. There are limitations on what the United States may do
there to commercial and other----
Mr. Cooper. Are you saying that Cuban law controls in
Guantanamo?
Mr. Olson. No, and I should allow the government lawyers to
answer that question because I am no longer representing the
government, but the agreement with respect to that makes it
clear that with respect to that area, like in many other
agreements throughout the world, U.S. law may appropriately
govern property that is in the custody of the United States,
although sovereignty remains----
Mr. Cooper. U.S. law doesn't apply, Cuban law applies. What
law does apply there?
Mr. Olson. Again, I want to defer to my colleagues
representing the Administration.
Mr. Cooper. But you stressed this point very strongly in
your testimony. Whose law applies?
Mr. Olson. There is an area where the Commander-in-Chief
has responsibility to determine battle place decisions, who
fires a gun, where the troops will go, and so forth. And under
those circumstances the Constitution quite properly allocated
that responsibility to the President.
Mr. Bradley. Mr. Cooper, I want to give Ms. Bordallo a
chance to ask her questions, too.
Thank you. Ms. Bordallo.
Ms. Bordallo. Thank you very much, Mr. Chairman, and thank
you to the panel. This certainly is a very critical concern.
I have just one question. I had a couple of questions. But
in light of the Hamdan ruling of the Supreme Court and the
memorandum issued by Secretary England concerning the
application of article 3 of the Geneva Conventions, could you
foresee a situation in the future where our Nation would not
adhere to article 3? And if so, what kind of situation would
that be, and why would it justify once again disregarding the
Geneva Conventions? That would be for you, Mr. Bradbury.
Mr. Bradbury. Thank you, Congresswoman. We have not
disregarded the Geneva Conventions. We brought a good faith
interpretation of the Geneva Conventions. And again, the court
has not said that al Qaeda detainees are prisoners of war
subject to all of the rules and privileges of the Geneva
Conventions. The court simply construed one article of the
Geneva Conventions, common article 3, and said, contrary to the
President's determination, this in fact is not an international
conflict because it is not between nations, and therefore
common article 3 applies in our war on terror. That is, we
believe, quite a dramatic concept because I don't think the
drafters of Geneva in drafting that provision intended to cover
or even anticipated conflicts between nations like the United
States and international terrorist organizations. But be that
as it may, the court said that applies.
Now that brings with it a number of standards, substantive
standards, and some procedural requirements. And as I said in
my testimony, most of the substantive standards are quite
clear, and we can all agree that they are condemnable conduct;
they are in fact the kind of crimes against humanity that al
Qaeda commits. There are some very vague phrases such as
humiliating and degrading treatment. These are the kinds of
phrases that in past treaties and recent treaties like the
Convention Against Torture and the International Convention For
Civil and Political Rights have caused the United States to
take reservations to those treaties, carefully defining those
phrases by reference to U.S. constitutional law so we can all
be sure it is based on a U.S. understanding of the proper
standards and not international understandings, which may be
different from ours and may evolve.
We don't have such a reservation to common article 3
currently, and so the meaning of that phrase, those phrases,
which are quite vague, will be uncertain and will be subject to
interpretations by foreign and international tribunals and
other governments, and they have been applied, in certain
respects, in ways that are quite reasonable. In other respects,
they have been applied in very broad ways, which might condemn
the kinds of conditions that are in U.S. prisons for example.
And we need to be very careful because now as a result of the
court's opinion a violation of those standards suddenly is a
war crime under title 18 of the U.S. code. So it puts at risk
all of the U.S. personnel handling it.
We think Congress can act by statute to bring definition
and certainty to the meaning of common article 3 and implement
it for the United States. We think that is consistent with our
treaty obligations, and it can make those terms certain, and we
think that is very important as we move forward.
Ms. Bordallo. If these changes are made then the situation
perhaps would not occur again, is this what you are saying?
Mr. Bradbury. We think we can address that, that the
Congress can address those risks through legislation.
Ms. Bordallo. Thank you, Mr. Chairman, for the opportunity
to ask my question.
Mr. Bradbury. Thank you. We have gotten to the end of our
witnesses and seeing we are down below ten minutes in the vote,
I am going to yield to the Chairman for just a moment.
The Chairman. I want to thank you the gentleman from New
Hampshire for running this hearing so effectively here while I
was gone.
Gentlemen, I would like to thank you for being with us, but
also ask you if you want to make any recommendations as to the
substance of the structure or anything elsewhere you think we
would be--that you have some advice for us, without objection,
we will leave the record open. And please make any further
recommendations you would like to make to us on how we
construct this new body of law. I think we are going to be
acting, and whether we get this in time to package it with the
conference report working with the Senate or it comes in later,
I think we definitely are acting. So it is going to be there.
This has been I think very, very instructive. You have been
most valuable in talking to us today. Thank you very much. As
you can see, we had full attendance, lots of people with lots
of great questions, and your testimony was very, very good.
Really appreciate it. Thank you.
Admiral Hutson. Thank you, Mr. Chairman.
Mr. Bradley. Thank you, all of the witnesses, and I get the
responsibility of adjourning the hearing.
[Whereupon, at 12:44 p.m., the committee was adjourned.]
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A P P E N D I X
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QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD
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QUESTIONS SUBMITTED BY MS. SANCHEZ
Ms. Sanchez. I have a few questions about how we should approach
the task of codifying our system for military commissions.
Since the UCMJ delegates substantial rule-making power to the
President, what aspects of commission procedures should we codify and
what should be left to Presidential executive orders in the Manual for
Courts-Martial? For example, if we decide to allow for exclusion of the
accused in certain circumstances during presentation of classified
evidence, should we codify the rule or leave it to executive rule-
making?
Second, in crafting a statute for commissions should we begin with
the general court-martial model and deviate only where common sense
dictates? Or should we outline an entirely distinct type of tribunal
and specify minimum procedural safeguards, leaving the details to the
president?
Finally, if we enact a military-commissions statute, would it make
sense to have a separate Manual for Military Commissions as the vehicle
for Presidential rule-making? Would you expect that the implementing
regulations would need to be that extensive?
Mr. Bradbury. We believe that Congress struck the appropriate
balance in the Military Commissions Act of 2006 (``MCA''), which enacts
the Code of Military Commissions, modeled on the court-martial
procedures of the Uniform Code of Military Justice (the ``UCMJ''), but
adapted for use in the special context of military commission trials of
alien unlawful enemy combatants. Dozens of articles of the UCMJ have
relevance for military commissions and were appropriately relied on as
the starting point for the MCA. At the same time, Congress recognized
that the military commissions process for alien unlawful enemy
combatants should be separate from the court-martial process that is
used to try our own service members. The MCA thus reflects the relevant
differences between the procedures appropriate for trying the men and
women of our Armed Forces and those appropriate for trying unlawful
alien enemy combatants.
The MCA, like the UCMJ, provides that the procedures established in
the MCA will be supplemented by additional rules and procedures.
Similar to Article 36 of the UCMJ, section 949a provides that the
Secretary of Defense, in consultation with the Attorney General, shall
prescribe rules of law and evidence appropriate for military
commissions, following those in courts-martial, where the Secretary of
Defense considers such procedures practicable or consistent with
military necessity. See 10 U.S.C. Sec. 949a(a). Consistent with that
directive, the Department of Defense recently promulgated a new Manual
for Military Commissions, which follows the Manual for Courts-Martial
in many respects.
Ms. Sanchez. One of the persistent criticisms of Military
Commission Order Number 1 has been the lack of a meaningful appeals
process for military-commission cases. What would you consider to be
the most appropriate appeals process for military-commission cases: use
of existing Article I courts, the ad hoc approach of limited review
under the DTA, or some other alternative? Why?
Mr. Bradbury. In the MCA, Congress has created a formal appeals
process that parallels the appellate process under the UCMJ.
Specifically, the MCA establishes a Court of Military Commission Review
within the Department of Defense to hear appeals on questions of law.
See 10 U.S.C. Sec. 950f(a). Convicted detainees have the right to
further appeal their convictions to the U.S. Court of Appeals for the
D.C. Circuit. Id. Sec. 950g(a). The Supreme Court may review decisions
of the D.C. Circuit through petitions for certiorari. Id. Sec. 950g(d).
We believe the MCA provides robust appellate review of decisions by
military commissions.
Ms. Sanchez. Common sense suggests that when war crimes trials are
conducted in the course of an on-going war, we should reserve some
discretion to deny the accused access in unusual cases, yet we want to
ensure that the rules narrowly limit the circumstances of such denials
and ensure that there are safeguards to mitigate the prejudice to the
accused, such as unclassified summaries of the evidence, etc.
With that in mind, I first would ask the panel to offer their
opinion on whether, in theory, it is possible to have a fundamentally
fair trial where an accused is excluded for portions of the trial? What
about trials in absentia, where an accused voluntarily flees after
arraignment--while that is different, doesn't the law assume that
resulting verdicts can be fundamentally just, despite the absence of
the accused?
Second, since the Supreme Court ruled that Common Article 3 of the
Geneva Conventions apply to our conflict with al Qaeda generally and
the military commissions specifically, could we exclude the accused
from selected portions of his trial consistent with Common Article 3's
requirement for a tribunal ``affording all the judicial guarantees
which are recognized as indispensable by civilized people''?
Finally, military-commission prosecutors I have spoken with about
this say that exclusion of the accused would be an unusual and
extraordinary measure. What is the best way to preserve some rule for
extraordinary exclusion, while protecting the rights of the accused?
What procedural and substantive standards would you recommend? Is there
any existing model?
Mr. Bradbury. The MCA strikes an appropriate balance between the
rights of the accused and interests of our national security. The new
law grants the accused the right to be present for all trial
proceedings. See 10 U.S.C. Sec. 949a(b)(1)(B); id. Sec. 949d(e).
Moreover, the accused will have access to all the evidence admitted
before the trier of fact. See id. Sec. 949a(b)(1)(A). At the same time,
the MCA contains robust protections to ensure that the United States
can prosecute captured alien unlawful enemy combatants without
compromising highly sensitive intelligence sources and methods. See id.
Sec. 949d(f). Accordingly, we believe that the MCA is consistent with
Common Article 3's requirement of a tribunal ``affording all the
judicial guarantees which are recognized as indispensable by civilized
peoples,'' while also safeguarding our intelligence operations and
personnel.
Ms. Sanchez. The single rule of evidence in Military Commission
Order No. 1 is that ``evidence shall be admitted if the evidence has
probative value to a reasonable person.'' This standard is very similar
to the rule of admissibility used by the International Criminal
Tribunal for the Former Yugoslavia, which states: ``A chamber may admit
any relevant evidence which it deems to have probative value.'' The
International Criminal tribunal for Rwanda uses a nearly identical
standard as well. In view of the similarity of these standards, there
seems to be an international consensus that war crimes trials require a
broader and more relaxed approach to admissibility of evidence.
What additional rules regarding the admissibility or exclusion of
evidence are essential to ensure reliable verdicts in military-
commission cases? Do you believe that this standard--``probative value
to a reasonable person'' is sufficient to exclude evidence derived from
coercive interrogations? How would you fashion a rule of exclusion that
prohibits admission of statements obtained through coercive
interrogations?
Mr. Bradbury. We agree that the evidentiary rules used in the
International Criminal Tribunal for the Former Yugoslavia (``ICTY'')
and the International Criminal Tribunal for Rwanda (``ICTR'')
demonstrate the appropriateness of applying broad rules of
admissibility in war crimes trials. Because military commissions must
try crimes based on evidence collected everywhere from the battlefields
of Afghanistan to foreign terrorist safe houses, we believe that
Congress struck a sensible balance in enacting a Code of Military
Commissions that provides for the introduction of all probative
evidence, including hearsay evidence where such evidence is reliable.
Of course, some evidence may be unreliable under the circumstances
surrounding a particular case. We believe, however, that the
reliability of a particular piece of evidence is best left to the
considered judgment of the presiding military judge in the first
instance.
The Administration believes that it is neither possible nor prudent
to draw a ``bright-line'' rule of exclusion for statements obtained via
``coercion.'' The United States does not engage in torture, an act that
is prohibited by United States law and our international obligations.
Consistent with these obligations, the MCA provides that statements
obtained by torture shall not be admitted in a military commission
proceeding. See 10 U.S.C. Sec. 948r(b). The MCA further provides that
statements obtained in violation of the Detainee Treatment Act of 2005,
which was enacted on December 30, 2005, shall not be admitted before a
military commission. See id. Sec. 948r(d)(3). As for other statements
arguably obtained through ``coercion,'' the MCA leaves the question of
admissibility to the sound discretion and expertise of the military
judge. Allegations of ``coercion'' are easy to make and often difficult
to rebut, particularly in the context of an ongoing armed conflict.
Accordingly, instead of attempting to fashion a universally applicable
rule of exclusion for ``coerced'' statements, Congress has
appropriately entrusted military judges with the authority to make
context-specific determinations about whether a particular allegation
of ``coercion'' is sufficiently well founded to vitiate the reliability
of a given statement and whether the interests of justice favor the
admission of the statement.
Ms. Sanchez. What additional rules regarding admissibility or
exclusion of evidence are essential to ensure reliable verdicts in
military commission cases? And if it is commonly accepted that coerced
admissions are not reliable and therefore lack probative value, do you
believe that this standard, probative value to a reasonable person, is
sufficient to exclude evidence derived from coerced confessions? And
how would you fashion a rule of exclusion that prohibits admission of
statements obtained through coercive confessions?
Mr. Dell'Orto. The Military Commissions Act of 2006 lays out
statutory framework for military commissions cases including
evidentiary rules.
On January 18, 2007, the Department of Defense submitted to
Congress a Manual for Military Commissions consistent with the guidance
provided in the Military Commissions Act, which includes specific rules
of evidence.
Ms. Sanchez. Those familiar with the history of American military
justice are aware of the great evolution of military justice in the
last half-century. Beginning with the enactment of the UCMJ in 1950 and
continuing thereafter through changes to the Code itself and the Manual
for Courts-Martial, modern American courts-martial have become very
similar to, and in many ways superior to, civilian criminal courts. Yet
there has been no similar evolution in the legal basis for military
commissions, which have also been a long standing feature of American
military justice. I believe we are now taking the first major steps in
the evolution of military commissions, which I believe are an important
part of our legal arsenal in the war on international terrorism. I have
a few questions about how we should approach the task of codification.
Since the UCMJ delegates substantial rule-making power to
the President, what aspects of commission procedures should we codify
and what should be left to Presidential executive orders in the Manual
for Courts-Martial? We need to find the appropriate mix of statute and
implementing regulations. For example, if we decide to allow for
exclusion of the accused in certain circumstances during presentation
of classified evidence, should we codify the rule or leave it to
executive rule-making?
Mr. Dell'Orto. Congress has passed and the President has signed
into law the Military Commissions Act of 2006 (``MCA''). The Department
of Defense believes that this legislation provides the appropriate
approach, including the appropriate level of statutory codification.
Ms. Sanchez. Second, in crafting a statute for commissions should
we begin with the general court-martial model and deviate only where
common sense dictates? Or should we outline an entirely distinct type
of tribunal and specify minimum procedural safeguards, leaving the
details to the president?
Mr. Dell'Orto. Please see the previous answer.
Ms. Sanchez. Finally, if we enact a military commissions statute,
would it make sense to have a separate Manual for Military Commissions
as the vehicle for Presidential rule-making? Would you expect that the
implementing regulations would need to be that extensive?
Mr. Dell'Orto. On January 18, 2007, the Department submitted to
Congress a Manual for Military Commissions consistent with the guidance
provided in the Military Commissions Act of 2006.
Ms. Sanchez. One of the persistent criticisms of Military
Commission Order Number 1 has been the lack of a meaningful appeals
process for military commissions cases. The Detainee Treatment Act
provides for review by a special panel of the DC Circuit Court of
Appeals of cases that result in a sentence in excess of 10 years
confinement. However, because military commissions are a species of
military tribunals under the UCMJ, it would seem to make sense to give
the Article I military appeals courts, with their expertise in military
law, supervision of this aspect of military justice as well.
What would you consider to be the most appropriate appeals
process for military commissions cases: use of existing Article I
courts, the ad hoc approach of limited review under the DTA, or some
other alternative? Why?
Mr. Dell'Orto. The Military Commissions Act of 2006 affords accused
the opportunity to appeal military commissions decisions to the Court
of Military Commission Review, the Court of Appeals for the District of
Columbia Circuit and the Supreme Court of the United States. We believe
that the Military Commissions Act of 2006 lays out the appropriate
appeals process.
Ms. Sanchez. The Supreme Court was critical of the military
commission rule that permits exclusion of the accused from proceedings
and denies him access to classified evidence. I believe that this rule
was offered as one of the original justifications for military
commissions in our current context. There has been much useful
discussion here regarding the best way to protect classified
information in the military commissions process. On the one hand, there
are those who advocate using the usual rules in the Classified
Information Procedure Act (CIPA) and Military Rule of Evidence 505,
which apply in a regular court-martial. On the other hand, there are
those who take the view that the commission should have the discretion
to simply exclude the accused whenever classified evidence is
presented, believing that the presence of his appointed defense counsel
will mitigate any prejudice to the accused. I'd like to find a middle
ground--common sense suggests that when war crimes trials are conducted
in the course of an on-going war, we should reserve some discretion to
deny the accused access in unusual cases, yet we want to ensure that
the rules narrowly limit the circumstances of such denials and ensure
that there are safeguards to mitigate the prejudice to the accused,
such as unclassified summaries of the evidence, etc.
With that in mind, I first would ask the panel to offer
their opinion on whether, in theory, it is possible to have a
fundamentally fair trial where an accused is excluded for portions of
the trial? What about trials in absentia, where an accused voluntarily
flees after arraignment--while that is different, doesn't the law
assume that resulting verdicts can be fundamentally just, despite the
absence of the accused?
Mr. Dell'Orto. Yes, in principle by setting clear, defined
limitations on when an accused can be excluded we may ensure a ``full
and fair trial''. That said, the MCA does not permit the accused to be
tried in absentia or through the introduction of classified evidence
withheld from the accused. The new law grants the accused the right to
be present for all trial proceedings (unless he engages in disruptive
conduct warranting his exclusion). See 10 U.S.C. Sec. 949a(b)(1)(B);
id. Sec. 949d(e). The accused will have access to all the evidence
admitted before the trier of fact. See id. Sec. 949a(b)(1)(A).
Ms. Sanchez. Second, since the Supreme Court ruled that Common
Article 3 of the Geneva Conventions apply to our conflict with al Qaeda
generally and the military commissions specifically, could we exclude
the accused from selected portions of his trial consistent with Common
Article 3's requirement for a tribunal ``affording all the judicial
guarantees which are recognized as indispensable by civilized
peoples''?
Mr. Dell'Orto. Yes, by setting clear, defined limitations on when
an accused can be excluded we can ensure a ``full and fair trial''. As
explained in the previous answer, the MCA provides that the accused
shall be present for all proceedings of a military commission (with
certain narrow exceptions). See 10 U.S.C. Sec. 949d(b). The MCA further
makes clear that, in the view of the United States, a military
commission established under the MCA is ``a regularly constituted
court, affording all the necessary `judicial guarantees which are
recognized as indispensable by civilized peoples' for purposes of
common Article 3 of the Geneva Conventions.'' Id. Sec. 948b(f).
Ms. Sanchez. Finally, military commissions prosecutors I have
spoken with about this say that exclusion of the accused would be an
unusual and extraordinary measure. What is the best way to preserve
some rule for extraordinary exclusion, while protecting the rights of
the accused? What procedural and substantive standards would you
recommend? Is there any existing model?
Mr. Dell'Orto. The Military Commissions Act of 2006 includes
provisions to protect classified information from disclosure if
disclosure would be detrimental to the national security. The
legislation requires that the accused will be present for all
proceedings of a military commission (with certain narrow exceptions).
See 10 U.S.C. Sec. 949d(b). The procedural and substantive standards
included in the Military Commissions Act of 2006 appear to strike the
proper balance between the need to protect classified information and
the accused's right to a full and fair trial.
Ms. Sanchez. I would like to zero in on the rules of evidence
again. All of you, including Admiral Hutson, accept the view that
different rules of evidence are required for war crimes cases. The
usual reasons cited for this necessary deviation from the regular rules
of evidence in courts-martial and Federal courts are related to the
manner and circumstances in which war crimes evidence is gathered--by
soldiers and intelligence agents, rather than police detectives trained
in the collection and preservation of evidence for criminal trials.
Consequently, the evidence in war crimes trials will likely include
hearsay, evidence without a clear chain of custody, and interrogation
products obtained without Miranda warnings and other safeguards against
coercion. The single rule of evidence in Military Commission Order No.
1 is that ``evidence shall be admitted if the evidence has probative
value to a reasonable person.'' This standard is very similar to the
rule of admissibility used by the International Criminal Tribunal for
the Former Yugoslavia, which states: ``A chamber may admit any relevant
evidence which it deems to have probative value.'' The International
Criminal tribunal for Rwanda uses a nearly identical standard as well.
In view of the similarity of these standards, there seems to be an
international consensus that war crimes trials require a broader and
more relaxed approach to admissibility of evidence.
What additional rules regarding the admissibility or
exclusion of evidence are essential to ensure reliable verdicts in
military commissions cases?
Mr. Dell'Orto. The Military Commissions Act of 2006 lays out a
statutory framework for military commissions cases including
evidentiary rules.
On January 18, 2007, the Department submitted to Congress a Manual
for Military Commissions consistent with the guidance provided in the
Military Commissions Act which includes specific rules of evidence.
Ms. Sanchez. It is commonly accepted that coerced admissions are
not reliable and, therefore, lack probative value. So, do you believe
that this standard--``probative value to a reasonable person''--is
sufficient to exclude evidence derived from coercive interrogations?
How would you fashion a rule of exclusion that prohibits admission of
statements obtained through coercive interrogations?
Mr. Dell'Orto. Coercion is a difficult legal concept to define and
any interrogations by government officials are coercive to some degree.
I do not agree that coerced admissions are per se unreliable and lack
probative value. The MCA excludes statements obtained by torture, as
that term is defined under United States law, and it further excludes
statements obtained in violation of the Detainee Treatment Act
(``DTA''), which was enacted on December 30, 2005. See 10 U.S.C.
Sec. 948r(d). As for other statements obtained by measures that did not
violate any United States statute, the MCA leaves the question of
admissibility to the sound discretion and expertise of the military
judge. Rather than trying to define ``coercion,'' Congress has
appropriately entrusted military judges with the authority to make
context-specific determinations about whether a particular statement
appears to be reliable and whether the interests of justice would be
served by admission of the statement. See id. Sec. 948r(c). I believe
that the MCA fashions the appropriate rule regarding the admissibility
of allegedly coerced statements.
______
QUESTIONS SUBMITTED BY MS. TAUSCHER
Ms. Tauscher. Would you agree that the Congress, in drafting the
UCMJ, made a reasoned and considered decision, informed in part by
concerns about the procedures adopted and applied in the Yamashita
case, that military commissions should adhere as closely as practicable
to the rules of the UCMJ?
Have any military commissions been established since the UCMJ was
adopted that not track the rules of the UCMJ, aside from those
currently proposed by the administration?
Which agencies and officials of the U.S. government did the White
House consult in advising the President on the issuance of his military
order of November 13, 2001, establishing the present military
commissions? Were senior officials from the Pentagon, including the
uniformed military leadership and senior Judge Advocates General, the
State Department and the National Security Council consulted? If not,
why were those officials in the government with primary responsibility
for national security and knowledge of U.S. military law and traditions
excluded from the process?
Mr. Bradbury. We believe that Congress made a reasoned decision to
enact the Uniform Code of Military Justice (the ``UCMJ'') to codify the
rules for courts-martial. As reflected in the position of the United
States in the Hamdan litigation, we do not believe that the uniformity
requirement of Article 36 was intended to require concordance between
military commission procedures and court-martial procedures, but rather
was designed to ensure uniformity among the court-martial rules
promulgated by the various services. That said, a majority of the
Supreme Court held to the contrary in Hamdan. The Military Commissions
Act of 2006 (the ``MCA'') addresses the statutory limitations
identified in Hamdan by establishing a new chapter of title 10 to
govern trials of alien unlawful enemy combatants by military
commission. The MCA tracks the UCMJ, but is adapted for use in the
special context of military commission trials of alien unlawful enemy
combatants and reflects the relevant differences between the procedures
appropriate for trying the men and women of our Armed Forces and
prisoners of war and those appropriate for trying alien unlawful enemy
combatants.
The President's November 13, 2001, order reflected advice received
from policy and legal experts throughout the Administration. In
proposing new military commissions legislation, the Administration
engaged in extensive deliberations with all of the bodies that you have
mentioned, including military lawyers, and in discussions with
interested Members of Congress. Beyond that, it is not appropriate to
discuss confidential and privileged advice provided by the Department
of Justice or others in the Administration for the benefit of
policymakers within the Executive Branch.
With respect to the specifics of any military commissions that may
have been convened after the codification of the UCMJ, we would refer
you to the Department of Defense, which is in a better position to
provide a response.
Ms. Tauscher. You stated that intelligence and military operations
might be compromised by application of the UCMJ, or a system of justice
modeled after the UCMJ. Specifically, you warned that members of our
armed forces would have to read Miranda rights to combatants captured
on the battlefield, and that intelligence officers would not be able to
carry out interrogations without first giving Miranda warnings and
providing access to counsel. Isn't it true that, under the UCMJ,
Miranda warnings and access to counsel are not required at the moment
of capture or when interrogations are conducted for intelligence
gathering purposes? Isn't it true that the UCMJ only requires Miranda
warnings and access to counsel once someone has become a suspect for
purposes of criminal prosecution?
If so, why did you not mention this distinction in your testimony?
Mr. Bradbury. The MCA makes clear that Article 31 of the UCMJ shall
not apply, directly or indirectly, to the trial of alien unlawful enemy
combatants by military commission. See 10 U.S.C. Sec. 948b(c) &
(d)(1)(B). To answer your specific question, as I explained in my
testimony, Article 31 of the UCMJ requires members of our Armed
Services to provide Miranda-type warnings before questioning to any
individual suspected of criminal wrongdoing, whenever that questioning
may be deemed to be part of an official law enforcement investigation.
That right is broader than the right afforded to criminal defendants in
the civilian system and should not be applied to the questioning of
captured terrorists. The Court of Military Appeals held in the Lonetree
case that intelligence agents who were not members of our Armed Forces
did not have to provide Article 31 warnings when conducting an
interrogation wholly divorced from a military law enforcement
investigation. See United States v. Lonetree, 35 M.J. 396, 405 (C.M.A.
1992). But Article 31 may well apply to many situations in which
members of our Armed Forces interrogate or interact with detainees
suspected of having violated the law of war. Our military personnel
should not be required to guess as to whether the situation they
confront is sufficiently investigatory, nor should they be forced to
choose between conducting effective interrogations and risking having
confessions later deemed inadmissible. Congress appropriately
determined in the MCA that Article 31 (a), (b), and (d) should not
apply to military commission prosecutions.
Ms. Tauscher. Isn't it true that the UCMJ has rules that protect
against the disclosure of classified evidence?
Don't those rules allow the government to substitute summaries of
evidence or statements of facts that the classified evidence would
prove to avoid the disclosure of classified evidence?
Mr. Bradbury. The MCA strikes an appropriate balance between the
rights of the accused and our national security interests. The new law
grants the accused the right to be present for all trial proceedings.
See 10 U.S.C. Sec. 949a(b)(1)(B); id. Sec. 949d(e). Moreover, the
accused will have access to all the evidence admitted before the trier
of fact. See id. Sec. 949a(b)(1)(A). At the same time, the MCA contains
robust protections to ensure that the United States can prosecute
captured alien unlawful enemy combatants without compromising highly
sensitive intelligence sources and methods. See id. Sec. 949d(f).
As you note, Military Rule of Evidence 505, which tracks the
Classified Information Protection Act, provides procedures that allow
the Government to seek judicial approval for the substitution of
classified evidence with redacted or summarized evidence. Although some
of those procedures parallel those in the MCA, they are not identical,
reflecting the fact that military commission procedures are designed
for the trials of unlawful enemy combatants--not the members of our
Armed Forces--and that in contrast to courts-martial, military
commission prosecutions are far more likely to concern evidence that
either is classified or was derived from classified sources or methods.
Ms. Tauscher. Isn't it true that the UCMJ includes exceptions to
the prohibition on hearsay that include both an ``excited utterance''
exception and ``present sense impressions'' exception?
Wouldn't both those exceptions apply to statements made on the
battlefield, and wouldn't those statements be admissible even under the
current hearsay rules of the UCMJ? If not, please explain.
Mr. Bradbury. The Military Rules of Evidence, tracking the rules in
civilian courts, do contain hearsay exceptions for ``present sense
impressions'' and ``excited utterances.'' See Mil. R. Evid. 803(1),
(2). And those hearsay exceptions may apply to some statements made on
the battlefield under certain circumstances. However, those two
exceptions may well not apply in many instances, such as if the
declarant provides a statement after leaving the battlefield and the
immediacy of the situation surrounding it. See, e.g., United States v.
Green, 50 M.J. 835, 840 (A. Ct. Crim. App. 1999) (holding that present-
sense-impression exception does not apply to rape victim's statements
made after she was questioned by her roommates); United States v.
Jones, 30 M.J. 127, 129-30 (C.M.A. 1990) (holding that excited-
utterance exception does not apply to statements made 12 hours after
the event).
Given the importance of gathering reliable evidence from alien
unlawful enemy combatants both on and off the field of battle, the
Administration believes that the hearsay rules under the Military Rules
of Evidence are ill suited to military commissions. Many witnesses in
military commission trials are likely to be foreign nationals who are
not amenable to process. Other witnesses may be unavailable because of
military necessity, incarceration, injury or death. The MCA adopts a
broad rule of admissibility for hearsay, in a manner that is consistent
with international tribunals. See 10 U.S.C. Sec. 949a(b)(2)(E)(i). For
example, the international criminal tribunals for the former Yugoslavia
and Rwanda permit the admission of any relevant evidence that the
tribunal deems to have probative value, including hearsay evidence, as
long as it is not substantially outweighed by the need for a fair
trial.
Ms. Tauscher. Is it not the policy of our military, as expressed in
the current DOD Directive on its Law of War Program, to comply with the
law of war (including Common Article 3) ``during all armed conflicts,
however such conflicts are characterized, and in all other military
operations?''
Would you agree that the United States has applied the minimum
standards of Common Article 3 in all of the wars it has fought since
the ratification of the Geneva Conventions, including against irregular
forces like the Viet Cong and warlords in Somalia?
Please specify any and all examples of situations where these
requirements of humane treatment were a detriment to our military's
ability to fulfill its mission?
Please specify examples of any and all interrogation techniques
that you believe U.S. service members or contractors should be allowed
to employ, but are prohibited by the humane treatment requirements of
Common Article 3?
If the meaning of humane treatment under Common Article 3 is Vague
and not fully understood by military commanders, why was Deputy
Secretary England able to state with confidence that current DOD
practices and policies fully comply with its standard?
You warned that the definition of the Common Article 3 is subject
to constant reinterpretation by international bodies. Isn't it true
that interpretations and rulings issued by foreign tribunals are not
ever binding on the U.S.? And that therefore the U.S. is not, and would
not, ever be obliged to adopt an international tribunal's definition of
the Terms of Common Article 3?
Does the Supreme Court's ruling that Common Article 3 applies to
the treatment of all al Qaeda detainees in U.S. custody also apply to
the treatment of al Qaeda detainees in the custody of other U.S.
government agencies, including the CIA? If not, why not? If so, what
steps are being taken to communicate this requirement to such agencies?
Has any country in the world that is a party to the Geneva
Conventions ever passed a law or promulgated a policy that denies the
application of Common Article 3 to any detainee captured as part of an
armed conflict?
Mr. Bradbury. It has been and will continue to be the policy of the
United States to comply with the law of war, including Common Article
3. With respect to Deputy Secretary England's statement, I would refer
you to the Department of Defense, which is in a better position to
provide a response.
As you know, the Supreme Court held in Hamdan that Common Article 3
applies to the conduct of the United States during the armed conflict
against al Qaeda. That decision extends to all detainees in the custody
of the United States. It would not be appropriate for me to comment on
specific privileged legal advice that the Department of Justice has
provided on this subject. That said, the difficulty in providing clear
guidance as to the meaning of Common Article 3 demonstrates why it was
vitally important for Congress to enact the MCA.
Although many of the provisions of Common Article 3 prohibit
actions that are universally condemned, such as ``murder,''
``torture,'' and the ``taking of hostages,'' other terms are undeniably
vague. Most notably, Common Article 3 prohibits ``[o]utrages upon
personal dignity, in particular, humiliating and degrading treatment.''
Terms such as ``outrages,'' ``personal dignity'' and ``degrading
treatment'' are susceptible to uncertain and unpredictable
interpretations. For example, some might consider it ``humiliating and
degrading treatment'' merely to hear harsh words during an
interrogation, or to be questioned by an interrogator of the opposite
sex.
The unpredictability of Common Article 3's meaning is exacerbated
by the well established principles--repeatedly affirmed by the United
States Supreme Court--that interpretations adopted by international
tribunals deserve ``respectful consideration,'' and that
interpretations adopted by other state parties to the treaty are due
``considerable weight.'' To be sure, international interpretations of
Common Article 3 are not binding on the United States. In light of
Hamdan, however, there was a substantial risk that the meaning of
Common Article 3's ambiguous provisions would have been informed by the
evolving interpretations of tribunals and governments outside the
United States. As the President has noted, the uncertainty as to the
meaning of Common Article 3 would have placed into doubt the ability of
the CIA to interrogate senior al Qaeda officials and to gather from
them information that has directly contributed to our success in
foiling many terrorist plots over the past five years.
The President believed that it was vitally important that the
standards governing the treatment of detainees by the United States in
the War on Terror should be clear and consistent with our international
obligations. The MCA does this by clarifying the meaning of Common
Article 3 for all U.S. personnel. The statute clearly defines the grave
breaches of Common Article 3 that would expose individuals to criminal
sanctions. See MCA Sec. 6(b) (amending 18 U.S.C. Sec. 2441(d)). It
makes clear that the Constitution's protections for our own citizens--
as defined in statute by the Detainee Treatment Act--similarly reflect
our Nation's international obligations. See id. Sec. 6(c). And the
statute reaffirms the President's inherent constitutional authority to
interpret our Nation's treaty obligations and delegates to him the
power to promulgate authoritative interpretive orders. See id.
Sec. (6)(a)(3)(C). The MCA thereby promotes United States compliance
with its treaty obligations by providing clarity to U.S. personnel and
other states parties to the Geneva Conventions of our understanding of
United States obligations under the treaty.
Ms. Tauscher. Get back to the committee and me specifically as to
your suggestions on how we deal with this issue [referring to the issue
of MRE 505 and classified information being used in proceedings].
Mr. Dell'Orto. The Military Commissions Act of 2006 lays out
statutory framework for military commissions cases including rules
regarding the use of classified information.
On January 18, 2007, the Department of Defense submitted to
Congress a Manual for Military Commissions, consistent with the
guidance provided in the Military Commissions Act, which includes
specific rules of evidence regarding the use of classified information.
Ms. Tauscher. Would you agree that the Congress, in drafting the
UCMJ, made a reasoned and considered decision, informed in part by
concerns about the procedures adopted and applied in the Yamashita
case, that military commissions should adhere as closely as practicable
to the rules of the UCMJ?
Mr. Dell'Orto. In many respects, the Military Commissions Act of
2006 closely tracks the UCMJ. I agree that Congress has made a reasoned
and considered decision in drafting the UCMJ as well as the Military
Commissions Act of 2006.
Ms. Tauscher. Have any military commissions been established since
the UCMJ was adopted that not track the rules of the UCMJ, aside from
those currently proposed by the administration?
Mr. Dell'Orto. The UCMJ was implemented by Executive Order on
February 8, 1951. I do not believe that there have been any military
commissions conducted under the UCMJ until the initiation of the
current military commissions associated with the current ongoing
conflict.
Ms. Tauscher. Which agencies and officials of the U.S. government
did the White House consult in advising the President on the issuance
of his military order of November 13, 2001, establishing the present
military commissions? Were senior officials from the Pentagon,
including the uniformed military leadership and senior Judge Advocates
General, the State Department and the National Security Council
consulted? If not, why were those officials in the government with
primary responsibility for national security and knowledge of U.S.
military law and traditions excluded from the process?
Mr. Dell'Orto. I cannot address what consultations the White House
did or did not have.
Ms. Tauscher. You stated that intelligence and military operations
might be compromised by application of the UCMJ, or a system of justice
modeled after the UCMJ. Specifically, you warned that members of our
armed forces would have to read Miranda rights to combatants captured
on the battlefield, and that intelligence officers would not be able to
carry out interrogations without first giving Miranda warnings and
providing access to counsel.
Isn't it true that, under the UCMJ, Miranda warnings and access to
counsel are not required at the moment of capture or when
interrogations are conducted for intelligence gathering purposes? Isn't
it true that the UCMJ only requires Miranda warnings and access to
counsel once someone has become a suspect for purposes of criminal
prosecution?
If so, why did you not mention this distinction in your testimony?
Mr. Dell'Orto. The MCA makes clear that Article 31 of the UCMJ
shall not apply, directly or indirectly, to the trial of unlawful enemy
combatants by military commission. See 10 U.S.C. Sec. 948b(c) &
(d)(1)(B). To answer your specific question, Article 31 of the UCMJ
requires members of our Armed Services to provide Miranda-type warnings
before questioning any individual who is subject to the UCMJ and
suspected of criminal wrongdoing, whenever that questioning may be
deemed to be part of an official law-enforcement investigation. These
rights are broader than the rights afforded to criminal defendants in
the civilian system. Indeed, unlike civilian Miranda rights warnings,
military Article 31, UCMJ, rights warnings are required regardless of
whether the suspect is in law enforcement custody. In addition, when
the suspect is placed in custody and is to be questioned by law
enforcement or other persons subject to the UCMJ, the suspect is
entitled to be advised that he or she may consult with counsel and have
such counsel present during the interrogation or questioning. When
counsel is requested, counsel must be present before any subsequent
custodial interrogation may proceed. The failure to provide a required
rights warning, regardless of whether the statement is obtained for law
enforcement or intelligence purposes, generally precludes the use of
those statements as evidence, and may preclude the use of any
additional evidence or information derived from those unwarned
statements.
The Court of Military Appeals held in the Lonetree case that
intelligence agents who were not members of our Armed Forces did not
have to provide Article 31 warnings when conducting an interrogation
wholly divorced from a military law-enforcement investigation. See
United States v. Lonetree, 35 M.J. 396, 405 (C.M.A. 1992). But Article
31 may well apply to many situations in which members of our Armed
Forces interrogate or interact with detainees suspected of having
violated the law of war. Our troops should not be required to guess as
to whether the situation they confront is sufficiently investigatory,
nor should they be forced to choose between conducting effective
interrogations and risking having confessions later deemed
inadmissible. Congress appropriately determined in the MCA that Article
31 should not apply to military commission prosecutions.
Ms. Tauscher. You state that application of court-martial rules
will require the government to disclose classified evidence if it
chooses to go forward with prosecutions.
Isn't it true that the UCMJ has rules that protect against the
disclosure of classified evidence? Don't those rules allow the
government to substitute summaries of evidence or statements of facts
that the classified evidence would prove precisely to avoid the problem
you identified--the disclosure of classified evidence?
Mr. Dell'Orto. The Manual for Courts-Martial has a Military Rule of
Evidence (MRE) that addresses the disclosure of classified information
during a court-martial prosecution. MRE 505 allows the government to
offer alternatives to the full disclosure of classified information to
the accused. The military judge then determines whether the
alternatives are acceptable for use by the accused at trial or whether
the use of the classified information itself is necessary to afford the
accused a fair trial. If the military judge determines that
alternatives to full disclosure of the classified information are
insufficient and the government continues to object to disclosing the
classified information, the military judge must issue an order
sanctioning the government as the interests of justice require. Such an
order may include: striking all or part of the testimony of a witness,
declaring a mistrial, or dismissing the charges, with or without
prejudice. Thus, under the UCMJ, the government may be forced to choose
between releasing classified information to an accused in order to
continue the prosecution or protecting the classified information but
foregoing the prosecution.
In the MCA, Congress recognized that MRE 505--which was designed
for the trials of members of our Armed Forces--needed to be tailored
for trials of unlawful enemy combatants. The new law grants the accused
the right to be present for all trial proceedings. See 10 U.S.C.
Sec. 949a(b)(1)(B); id. Sec. 949d(e). Moreover, the accused will have
access to all the evidence admitted before the trier of fact. See id.
Sec. 949a(b)(1)(A). At the same time, the MCA contains robust
protections to ensure that the United States can prosecute captured
terrorists without compromising highly sensitive intelligence sources
and methods. See id. Sec. 949d(f). I believe the MCA strikes an
appropriate balance between the rights of the accused and interests of
our national security.
Ms. Tauscher. You state that the UCMJ would deprive prosecutors of
some of the best--and in some cases only--evidence against the
detainees: hearsay statements made on the battlefield.
Isn't it true that the UCMJ includes exceptions to the prohibition
on hearsay that include both an ``excited utterance'' exception and
``present sense impressions'' exception? Wouldn't both those exceptions
apply to statements made on the battlefield, and wouldn't those
statements be admissible even under the current hearsay rules of the
UCMJ? If not, please explain.
Mr. Dell'Orto. Military commissions, like international war crimes
tribunals, will have a strong need to consider reliable hearsay
evidence. Hearsay statements comprise some of the best evidence against
those we expect to try by military commission, and it would be
impracticable or even impossible to successfully try some of those
accused without the use of hearsay evidence. The Military Rules of
Evidence generally prohibit hearsay evidence and carve out certain
established exceptions where hearsay evidence has generally been
recognized as more reliable. While some of the hearsay evidence used in
military commissions cases will fall into the recognized hearsay
exceptions, given the unusual nature of these cases, some valuable
hearsay evidence will not. In particular, the ``excited utterance''
exception or the ``present sense impression'' exception--which permit
the admission of hearsay statements about present or recent
observations--are not likely to be broad enough to permit the admission
of highly relevant reports concerning past events that reliable, but
unavailable, foreign witnesses may have made to United States
personnel. Thus, the Military Commissions Act of 2006 provides that
hearsay evidence shall be admitted if it would be admissible in a
court-martial proceeding, or if the judge otherwise finds the evidence
probative and reliable. See 10 U.S.C. Sec. 949a(b)(2)(E).
Ms. Tauscher. Is it not the policy of our military, as expressed in
the current DOD Directive on its Law of War Program, to comply with the
law of war (including Common Article 3) ``during all armed conflicts
however such conflicts are characterized, and in all other military
operations?''
Mr. Dell'Orto. Yes, that is the policy.
Ms. Tauscher. Would you agree that the United States has applied
the minimum standards of Common Article 3 in all of the wars it has
fought since the ratification of the Geneva Conventions, including
against irregular forces like the Viet Cong and warlords in Somalia?
Isn't it true that in all of those conflicts we considered ourselves
bound to apply the basic standards of humane treatment and fair justice
embodied in Common Article 3--even against enemies that engaged in
brutal war crimes--in recognition that our actions set an example for
others and for the treatment of our own troops when they are captured?
Mr. Dell'Orto. U.S. Armed Forces personnel captured in the course
of an armed conflict have the status of prisoners of war under the
Third Geneva Convention. The full scope of that convention's provisions
and protections would apply in those circumstances, not the more
limited protections of Common Article 3. In every armed conflict, the
United States has demanded always that captured U.S. personnel be
afforded all the rights and privileges of their lawful status. It has
not always been the case, however, that other State parties to the
Geneva Conventions have afforded our personnel such protections. Recall
the experience of U.S. POWs held by the North Vietnamese.
The United States provided captured Viet Cong and North Vietnamese
forces with prisoner of war protections out of our interest in
protecting captured U.S. military personnel and civilians, following
the murder of three U.S. military personnel in Viet Cong hands.
Captured U.S. personnel did not benefit from this policy decision,
however, and they suffered confinement under brutal conditions,
torture, malnourishment, and other hardships up to and including murder
at the hands of their captors.
An historical and fundamental premise of the law of war is that
private citizens may not engage in combatant acts. No law of war treaty
requires that a State provide prisoner of war status or protections to
civilians who unlawfully take up arms against that State. Doing so
would place innocent civilians in greater jeopardy, and would reward
terrorists for their violations of the law of war.
Reciprocity in practices among States who are parties to the same
treaty is an important consideration. However, the attack of civilian
objects and the death of almost 3,000 innocent civilians on September
11, 2001; the illegal attacks on other civilian objects, such as the
United Nations and International Committee of the Red Cross facilities
in Iraq; and the subsequent kidnapping, torture and murder of innocent
U.S. and foreign civilians, such as the May 11, 2004, beheading of
Nicholas Berg, provide no expectation of even limited application of
the law of war by al Qaeda, which is not a State party to the Geneva
Conventions.
Ms. Tauscher. Please specify any and all examples of situations
where these requirements of humane treatment were a detriment to our
military's ability to fulfill its mission?
Mr. Dell'Orto. I do not believe that treating detainees humanely is
a detriment to fulfilling U.S. military mission requirements.
Ms. Tauscher. Please specify examples of any and all interrogation
techniques that you believe U.S. service members or contractors should
be allowed to employ, but are prohibited by the humane treatment
requirements of Common Article 3?
Mr. Dell'Orto. The Detainee Treatment Act of 2005 contains the
following provision:
No person in the custody or under the effective control of the
Department of Defense or under detention in a Department of Defense
facility shall be subject to any treatment or interrogation approach or
technique that is not authorized by and listed in the United States
Army Field Manual on Intelligence Interrogation.
The Deputy Secretary issued a directive to the Department on
December 30, 2005, informing the field of this legal requirement under
the Detainee Treatment Act. The interrogation approaches and techniques
contained in Field Manual 34-52, Intelligence Interrogations, comply
with the law and are well within the humane treatment requirements of
Common Article 3.
Ms. Tauscher. If the meaning of humane treatment under Common
Article 3 is vague and not fully understood by military commanders, why
was Deputy Secretary England able to state with confidence that current
DOD practices and policies fully comply with its standard?
Mr. Dell'Orto. The policies promulgated by the Department of
Defense are well above the standards of Common Article 3.
Ms. Tauscher. Isn't it true that interpretations and rulings issued
by foreign tribunals are not ever binding on the U.S.? And that
therefore the U.S. is not, and would not, ever be obliged to adopt an
international tribunal's definition of the terms of Common Article 3?
Mr. Dell'Orto. Many of the provisions of Common Article 3 prohibit
actions that are universally understood and condemned, such as
``murder,'' ``mutilation,'' ``torture,'' and the ``taking of
hostages.'' It is undeniable, however, that some of the terms in Common
Article 3 are inherently vague, as this Committee already discussed in
its recent hearing on the subject.
For example, Common Article 3 prohibits ``[o]utrages upon personal
dignity, in particular, humiliating and degrading treatment,'' a phrase
that is susceptible of uncertain and unpredictable application. If left
undefined by statute, the application of Common Article 3 could create
an unacceptable degree of uncertainty for those who fight to defend us
from terrorist attack, particularly because any violation of Common
Article 3 constitutes a federal crime under the War Crimes Act.
Furthermore, the Supreme Court has said that in interpreting a
treaty provision such as Common Article 3, the meaning given to the
treaty language by international tribunals must be accorded
``respectful consideration,'' and the interpretations adopted by other
state parties to the treaty are due ``considerable weight.''
Accordingly, the meaning of Common Article 3--the baseline standard
that now applies to the conduct of U.S. personnel in the War on
Terror--would be informed by the evolving interpretations of tribunals
and governments outside the United States.
Ms. Tauscher. Does the Supreme Court's ruling that Common Article 3
applies to the treatment of all al Qaeda detainees in U.S. custody also
apply to the treatment of al Qaeda detainees in the custody of other
U.S. government agencies, including the CIA? If not, why not? If so,
what steps are being taken to communicate this requirement to such
agencies?
Mr. Dell'Orto. I can only speak for the Department of Defense and
note the steps taken to ensure that the Supreme Court's ruling in
Hamdan has been communicated throughout the Department of Defense. The
Deputy Secretary issued a memorandum on July 7, 2006 informing the
Department of Defense that the Supreme Court determined that Common
Article 3 to the Geneva Conventions of 1949 applies as a matter of law
to the conflict with al Qaeda. A copy of this memorandum has already
been provided to Congress.
Ms. Tauscher. Has any country in the world that is a party to the
Geneva Conventions ever passed a law or promulgated a policy that
denies the application of Common Article 3 to any detainee captured as
part of an armed conflict?
Mr. Dell'Orto. I do not know.
______
QUESTIONS SUBMITTED BY MS. DAVIS OF CALIFORNIA
Ms. Davis. Why have only ten of the terrorist combatants in
Guantanamo been charged? What does the government plan to do with the
rest of the people currently held at GTMO?
Mr. Bradbury. As the Supreme Court recognized in the Hamdi
decision, the United States has the authority to detain enemy
combatants for the duration of hostilities. See Hamdi v. Rumsfeld, 542
U.S. 507, 519-21 (2004). The decision whether to charge an enemy
combatant with a crime depends, however, on whether there is specific
evidence that the individual committed a war crime. In light of the
passage of the Military Commissions Act of 2006, and the resulting
removal of any legal uncertainty over whether the military commissions
are authorized by statute, we expect a greater number of detainees will
be charged and tried by military commission.
With respect to those detainees who are not charged, the United
States has the authority to detain those individuals for the duration
of hostilities, consistent with their status as enemy combatants under
international law. Nevertheless,the President has made clear that the
United States has no interest in detaining these individuals beyond the
point where such detention is necessary. Accordingly, the United States
has voluntarily taken measures to review the need to continue to hold
enemy combatants on an annual basis through the Administrative Review
Board (``ARB'') process. The ARBs assess whether the enemy combatant
poses a threat to the United States or its allies in the ongoing War on
Terror and whether there are other factors bearing on the need for
continued detention (e.g., intelligence value). When appropriate, the
United States has undertaken extraordinary measures to repatriate enemy
combatants to their home countries. We emphasize, however, that these
transfers are not without risk. On anumber of occasions, enemy
combatants released by the United States have returned to the field of
battle to once again take up arms against American forces. Accordingly,
for the safety of United States citizens, it is important that the
United States be careful and ensure that enemy combatants are released
only when they truly no longer pose a threat to the United States and
its allies.
Ms. Davis. The military commission rules the President approved
prior to the Hamdan decision contained a number of different features
distinguishing the commissions from ordinary courts martial or other
conventional judicial proceedings. Are there specific policy rationales
for each of those distinctions? Please explain.
Mr. Bradbury. In his military commissions order, the President
determined that the trial of captured terrorists by court-martial
procedures would not be practicable, and he therefore directed the
Department of Defense to convene military commissions that would
reflect the military realities of the War on Terror, but that would
still provide detainees with full and fair trials. At that time, the
President did not make the specific procedure-by-procedure
determination as to every departure from the court-martial system that
the Supreme Court later held in Hamdan was required by Article 36 of
the Uniform Code of Military Justice (the ``UCMJ'').
Congress has now passed, and the President has signed into law, the
MCA. The MCA relies upon the UCMJ as a starting point and then departs
in specific respects where the court-martial procedures would be
impracticable or inappropriate. For example, because many terrorists
were captured on the battlefield, strict hearsay rules that would
require foreign nationals and United States military personnel to
appear personally at military commissions would present significant
obstacles to the trials of such enemy combatants. Therefore, the MCA
recognizes that the hearsay rules applicable in courts-martial shall
not apply here. See 10 U.S.C. Sec. 949a(b)(2)(E). In other
circumstances, the UCMJ provides protections that exceed those given to
criminal defendants in civilian courts, and that would be inappropriate
to provide to alien unlawful enemy combatants in the military
commissions. Congress therefore provided, for example, that Article
31(a), (b), and (d) (concerning the pretrial right to counsel) and
Article 32 (concerning the pretrial investigation) of the UCMJ shall
not apply to military commissions. See id. Sec. 948b(d). More
generally, the MCA provides that the rules issued by the Secretary of
Defense shall track those of courts-martial only insofar as he
``considers practicable or consistent with military or intelligence
activities.'' Id. Sec. 949a(a). Thus, while the MCA tracks the UCMJ in
many respects, Congress correctly determined that these and other
court-martial provisions should not be employed in military
commissions.
Ms. Davis. Why doesn't the Administration try to implement the
Hamdan decision by complying with Common Article 3 and modifying the
military commissions to better incorporate due process provisions
mentioned by the Court, rather than requesting Congressional action
without the benefit of experience?
Mr. Bradbury. Congress recognized in the MCA that the procedures
enacted therein fully satisfy the standards of Common Article 3. See 10
U.S.C. Sec. 948b(f). We agree and believe that the legislation
appropriately addresses the concerns raised by the Supreme Court.
Common Article 3 prohibits the ``passing of sentences and the carrying
out of executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.'' Common Article 3
provides no further details as to the ``judicial guarantees which are
recognized as indispensable by civilized peoples,'' but the MCA, which
takes the UCMJ as a starting point, provides extensive procedural
protections for the accused that fully satisfy the international
standard.
The Supreme Court held in Hamdan that the then-existing military
commission procedures conflicted with Articles 21 and 36 of the UCMJ.
The Court did not hold that any particular commission procedure
violated due process or international law. Nonetheless, several of the
Justices, in separate opinions, did express concerns about some
commission procedures, and the new military commission legislation
addresses those concerns. For instance, to ensure the impartiality of
the tribunal, the MCA provides that a military judge presides over the
commission proceeding with the traditional authority of a judge to
issue final rulings at trial on law and evidence. See 10 U.S.C.
Sec. 949l(b). In addition, the MCA provides that the minimum number of
members of the commission is increased to five in non-capital cases,
and twelve in capital cases, so as to track the procedures now in place
under the UCMJ. See id. Sec. 948m(a); id. Sec. 949m(c).
Ms. Davis. If you believe Congress can establish non-law-of-war
violations that are subject to trial by military commission (for
example, conspiracy or inchoate offenses related to terrorism), do you
believe such new offenses could be applied retroactively? If so, under
what theory of law?
Mr. Bradbury. The Administration believes that conspiracy is an
offense under the law of war and is therefore properly triable by
military commission. As Justice Thomas demonstrated in his opinion in
Hamdan, that view is supported by historical practice and by
authoritative commentators on the law of war. In enacting the MCA,
Congress has appropriately exercised its authority under Article I,
Section 8, to ``define and punish . . . Offenses against the Law of
Nations,'' by specifically authorizing military commissions to try
unlawful alien enemy combatants for conspiring to violate the law of
war. In so doing, Congress specifically recognized that conspiracy was
an offense ``that ha[d] been traditionally triable by military
commission.'' 10 U.S.C. Sec. 950p(a). This determination should make
clear that conspiracy remains properly triable by military commission.
We also note that conspiracies to commit the offenses defined as ``war
crimes'' are already prosecutable in federal court. See 18 U.S.C.
Sec. 2441(c)(1); id. Sec. 371. Title 18 likewise prohibits providing
material support to terrorism. See id. Sec. 2339A; 2339B. Because
conspiring to commit a war crime or providing material support to
terrorism is not a ``new offense,'' the prosecution for such a crime
would not raise retroactivity concerns.
Ms. Davis. What are the specific definitions the Secretary uses for
the following terms:
a. Enemy combatant?
b. Unlawful enemy combatant?
c. War crime?
d. Terrorist?
e. Coercion?
f. Cruel?
g. Humiliating?
h. Degrading?
i. Indignities?
j. Inhuman?
Mr. Bradbury. The MCA defines many of the terms that you have
listed for purposes of military commissions. ``Lawful enemy combatant''
and ``unlawful enemy combatant'' are defined under 10 U.S.C. Sec. 948a.
The statute does not specifically define ``enemy combatant,'' but every
combatant will either be a lawful or an unlawful combatant.
The ``war crimes'' that violate Common Article 3 as a matter of
United States criminal law are defined in 18 U.S.C. Sec. 2441, as
amended by section 6 of the MCA. In addition, 10 U.S.C. Sec. 950v(b)
defines the offenses traditionally triable by military commission that
would generally be understood to constitute war crimes.
The MCA defines the offense of ``terrorism'' at 10 U.S.C.
Sec. 950v(b)(24).
``Cruel, inhuman and degrading treatment'' is defined in section
6(c) of the MCA. In addition, the War Crimes Act, as amended by the
MCA, defines an offense of cruel or inhuman treatment. See 18 U.S.C.
Sec. 2441(d)(1)(B).
To the extent your question seeks the particular definitions of
other terms employed by the Secretary of Defense, we would refer you
directly to the Department of Defense, which is in a better position to
respond.
Ms. Davis. Generally, the United States filled GTMO in late 2001
and early 2002, and hundreds of people who have been designated as
enemy combatants have been sitting there for nearly four years in
solitary confinement. While hundreds sit there, the administration has
only filed charging documents for ten of them.
Mr. Dell'Orto. We have no one at Guantanamo who is held in solitary
confinement.
Ms. Davis. Why have only ten been charged?
Mr. Dell'Orto. Charging of some of the detainees before military
commission commenced in the summer of 2004 and continued into 2005. A
number of restraining orders were issued in habeas corpus actions
pending before United States District Courts preventing military
commissions from proceeding. A decision was made to delay additional
charges until such time as the restraining orders in pending cases were
lifted and the law concerning military commissions was settled. In June
2006, the United States Supreme Court held in Hamdan that the prior
structure of military commissions lacked statutory authorization. Now
that Congress has passed the Military Commissions Act of 2006, the
President has signed it into law, and the Manual for Military
Commissions has been promulgated, charges have been preferred against
three individuals. We expect additional individuals will be charged in
the future.
Ms. Davis. Are they no longer of intelligence value?
Mr. Dell'Orto. The United States has no desire to hold detainees
any longer than necessary, but transfers are not without risk. We make
a determination about the transfer of a detainee based on the best
information and evidence available at the time, both classified and
unclassified. They are of varying degrees of intelligence value.
Remember, some of these individuals are highly skilled in concealing
the truth. Al Qaeda's training manual, a.k.a. the Manchester Manual,
stresses the importance of deception tactics, techniques, and
procedures. Once the individual is transferred, that person becomes the
responsibility of his home country and is subject to that country's
laws. About 15 detainees who have been released are reported to have
returned to the fight.
The Administrative Review Board (ARB) assesses whether an enemy
combatant continues to pose a threat to the United States or its
allies, or whether there are other factors bearing on the need for
continued detention. The process permits the detainee to appear in
person before an ARB panel of three military officers to explain why
the detainee is no longer a threat to the United States or its allies
and to provide information to support the detainee's release. The
recommendation of the ARB panel is provided to the Designated Civilian
Official (DCO), who then makes a determination as to whether a
particular enemy combatant should continue to be detained, be
transferred, or released.
Ms. Davis. What does the government plan to do with the rest of
these people?
Mr. Dell'Orto. See answer above.
Ms. Davis. Are we planning to detain them indefinitely (given the
Rasul decision and the indefinite nature of war on a tactic,
``terrorism'')? For the rest of their natural lives? Until another
government agrees to take them? Almost all major conflicts have a
definite end. When in is the end of this ``conflict?'' How will we know
when it's over since we likely won't be signing a peace treaty? Please
explain.
Mr. Dell'Orto. See answer above.
Additionally, the war on terror is different from a conventional
war because the United States is at war against al Qaeda, an
international terrorist organization. Al Qaeda is not a State party to
the Geneva Conventions and does not conduct its operations in
accordance with the customs and laws of war.
The law in regard to this matter is the law of war. It is difficult
to know during a war, when the war will be won. We certainly hope that
hostilities will not continue for decades, but the law permits
detaining enemy combatants until the cessation of hostilities.
Ms. Davis. The military commission rules the President approved--
and that the Hamdan court found unlawful--contained a number of
different features distinguishing the commission from ordinary courts
martial or other conventional judicial proceedings. Are there specific
policy rationales for each of those distinctions? If yes, what
rationales correspond to the specific features of the commissions, and
how were they arrived at? If no, then why is any particular feature of
the original rules indispensable?
Mr. Dell'Orto. The original military commission rules were
formulated to comport with the modern military commission precedent,
dating back to the World War II era as reviewed by the Supreme Court in
Ex parte Quirin, 317 U.S. 1 (1942).
Ms. Davis. Why doesn't the Administration wait to see if it can
implement the Hamdan decision without all the adverse consequences it
was warning about? It could proceed by complying with Common Article 3
and modifying the military commissions to better incorporate due
process provisions mentioned by the Court. It could then report back in
a year or two about actual experiences rather than requesting
congressional changes without the benefit of experience.
Mr. Dell'Orto. We at the Department of Defense believe that in
Hamdan, the Supreme Court indicated that Congress and the Executive
Branch should work together to address the appropriate procedures
governing commissions. We believe that the recently enacted Military
Commissions Act of 2006, the product of such a joint effort, preserves
flexibility in the procedures for military commissions while ensuring
that those accused receive a full and fair trial.
Ms. Davis. If you believe Congress can establish non-law of war
violations that are subject to trial by military commission (for
example, conspiracy or inchoate offenses related to terrorism), do you
believe such new offenses could be applied retroactively? If so, under
what theory of law?
Mr. Dell'Orto. The Military Commissions Act of 2006 deals with the
question of retroactivity of new offenses. I believe that it has the
appropriate solution.
Ms. Davis. What are the specific definitions the Secretary uses for
the following terms:
a. Enemy combatant?
b. Unlawful enemy combatant?
c. War crime?
d. Terrorist?
e. Coercion?
f. Cruel?
g. Humiliating?
h. Degrading?
i. Indignities?
j. Inhuman?
Mr. Dell'Orto.
Enemy combatant
From the Military Commissions Act of 2006 and for the purposes of
trial by military commission:
``(2) LAWFUL ENEMY COMBATANT.--The term `lawful enemy combatant'
means a person who is--
``(A) a member of the regular forces of a State party engaged in
hostilities against the United States;
``(B) a member of a militia, volunteer corps, or organized
resistance movement belonging to a State party engaged in such
hostilities, which are under responsible command, wear a fixed
distinctive sign recognizable at a distance, carry their arms openly,
and abide by the law of war; or
``(C) a member of a regular armed force who professes allegiance
to a government engaged in such hostilities, but not recognized by the
United States.
Unlawful enemy combatant
From the Military Commissions Act of 2006 and for the purposes of
trial by military commission:
``(1) UNLAWFUL ENEMY COMBATANT.--(A) The term `unlawful enemy
combatant' means--
``(i) a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the United
States or its co-belligerents who is not a lawful enemy combatant
(including a person who is part of the Taliban, al Qaeda, or associated
forces); or
``(ii) a person who, before, on, or after the date of the
enactment of the Military Commissions Act of 2006, has been determined
to be an unlawful enemy combatant by a Combatant Status Review Tribunal
or another competent tribunal established under the authority of the
President or the Secretary of Defense.
War crime
Under Section 2441 of title 18, United States Code, (c) Definition.
As used in this section the term ``war crime'' means any conduct--
(1) defined as a grave breach in any of the international
conventions signed at Geneva 12 August 1949, or any protocol to such
convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War on Land,
signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the
international conventions signed at Geneva, 12 August 1949, or any
protocol to such convention to which the United States is a party and
which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary
to the provisions of the Protocol on Prohibitions or Restrictions on
the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on
3 May 1996 (Protocol II as amended on 3 May 1996), when the United
States is a party to such Protocol, willfully kills or causes serious
injury to civilians.
The Military Commissions Act of 2006 amends the previous definition
as follows:
(1) IN GENERAL.--Section 2441 of title 18, United States Code, is
amended--
(A) in subsection (c), by striking paragraph (3) and inserting the
following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3 (as
defined in subsection (d)) when committed in the context of and in
association with an armed conflict not of an international character;
or''; and
(B) by adding at the end the following new subsection:
``(d) COMMON ARTICLE 3 VIOLATIONS.--
``(1) PROHIBITED CONDUCT.--In subsection (c)(3), the term `grave
breach of common Article 3' means any conduct (such conduct
constituting a grave breach of common Article 3 of the international
conventions done at Geneva August 12, 1949), as follows:
``(A) TORTURE.--The act of a person who commits, or conspires or
attempts to commit, an act specifically intended to inflict severe
physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody
or physical control for the purpose of obtaining information or a
confession, punishment, intimidation, coercion, or any reason based on
discrimination of any kind.
``(B) CRUEL OR INHUMAN TREATMENT.--The act of a person who
commits, or conspires or attempts to commit, an act intended to inflict
severe or serious physical or mental pain or suffering (other than pain
or suffering incidental to lawful sanctions), including serious
physical abuse, upon another within his custody or control.
``(C) PERFORMING BIOLOGICAL EXPERIMENTS.--The act of a person who
subjects, or conspires or attempts to subject, one or more persons
within his custody or physical control to biological experiments
without a legitimate medical or dental purpose and in so doing
endangers the body or health of such person or persons.
``(D) MURDER.--The act of a person who intentionally kills, or
conspires or attempts to kill, or kills whether intentionally or
unintentionally in the course of committing any other offense under
this subsection, one or more persons taking no active part in the
hostilities, including those placed out of combat by sickness, wounds,
detention, or any other cause.
S. 3930-35
``(E) MUTILATION OR MAIMING.--The act of a person who
intentionally injures, or conspires or attempts to injure, or injures
whether intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more persons taking no
active part in the hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause, by disfiguring the
person or persons by any mutilation thereof or by permanently disabling
any member, limb, or organ of his body, without any legitimate medical
or dental purpose.
``(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.--The act of a
person who intentionally causes, or conspires or attempts to cause,
serious bodily injury to one or more persons, including lawful
combatants, in violation of the law of war.
``(G) RAPE.--The act of a person who forcibly or with coercion or
threat of force wrongfully invades, or conspires or attempts to invade,
the body of a person by penetrating, however slightly, the anal or
genital opening of the victim with any part of the body of the accused,
or with any foreign object.
``(H) SEXUAL ASSAULT OR ABUSE.--The act of a person who forcibly
or with coercion or threat of force engages, or conspires or attempts
to engage, in sexual contact with one or more persons, or causes, or
conspires or attempts to cause, one or more persons to engage in sexual
contact.
``(I) TAKING HOSTAGES. The act of a person who, having knowingly
seized or detained one or more persons, threatens to kill, injure, or
continue to detain such person or persons with the intent of compelling
any nation, person other than the hostage, or group of persons to act
or refrain from acting as an explicit or implicit condition for the
safety or release of such person or persons.
``(2) DEFINITIONS.--In the case of an offense under subsection (a)
by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering' shall be applied
for purposes of paragraphs (1)(A) and (1)(B) in accordance with the
meaning given that term in section 2340(2) of this title;
``(B) the term `serious bodily injury' shall be applied for
purposes of paragraph (1)(F) in accordance with the meaning given that
term in section 113(b)(2) of this title;
``(C) the term `sexual contact' shall be applied for purposes of
paragraph (1)(G) in accordance with the meaning given that term in
section 2246(3) of this title;
``(D) the term `serious physical pain or suffering' shall be
applied for purposes of paragraph (1)(B) as meaning bodily injury that
involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) a burn or physical disfigurement of a serious nature
(other than cuts, abrasions, or bruises); or
``(iv) significant loss or impairment of the function of a bodily
member, organ, or mental faculty; and
``(E) the term `serious mental pain or suffering' shall be applied
for purposes of paragraph (1)(B) in accordance with the meaning given
the term `severe mental pain or suffering' (as defined in section
2340(2) of this title), except that--
S. 3930-36
``(i) the term `serious' shall replace the term `severe' where it
appears; and
``(ii) as to conduct occurring after the date of the enactment of
the Military Commissions Act of 2006, the term `serious and non-
transitory mental harm (which need not be prolonged)' shall replace the
term `prolonged mental harm' where it appears.
``(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO
COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.--The intent specified
for the conduct stated in subparagraphs (D), (E), and (F) or paragraph
(1) precludes the applicability of those subparagraphs to an offense
under subsection (a) by reasons of subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.--
Paragraph (1)(I) does not apply to an offense under subsection (a) by
reason of subsection (c)(3) in the case of a prisoner exchange during
wartime.
``(5) DEFINITION OF GRAVE BREACHES.--The definitions in this
subsection are intended only to define the grave breaches of common
Article 3 and not the full scope of United States obligations under
that Article.''.
(2) RETROACTIVE APPLICABILITY.--The amendments made by this
subsection, except as specified in subsection (d)(2)(E) of section 2441
of title 18, United States Code, shall take effect as of November 26,
1997, as if enacted immediately after the amendments made by section
583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public
Law 107-273).
Terrorist
From the Military Commissions Act of 2006:
TERRORISM.--Any person subject to this chapter who intentionally
kills or inflicts great bodily harm on one or more protected persons,
or intentionally engages in an act that evinces a wanton disregard for
human life, in a manner calculated to influence or affect the conduct
of government or civilian population by intimidation or coercion, or to
retaliate against government conduct, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter may
direct.
``(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.--
``(A) OFFENSE.--Any person subject to this chapter who provides
material support or resources, knowing or intending that they are to be
used in preparation for, or in carrying out, an act of terrorism (as
set forth in paragraph (24)), or who intentionally provides material
support or resources to an international terrorist organization engaged
in hostilities against the United States, knowing that such
organization has engaged or engages in terrorism (as so set forth),
shall be punished as a military commission under this chapter may
direct.
``(B) MATERIAL SUPPORT OR RESOURCES DEFINED.--In this paragraph,
the term `material support or resources' has the meaning given that
term in section 2339A(b) of title 18.
Coercion
From FM 2-22.3, Human Intelligence Collector Operations (page 5-
22):
Although no single comprehensive source defines impermissible
coercion, certain acts are clearly prohibited. Certain prohibited
physical coercion may be obvious, such as physically abusing the
subject of an interview or interrogation. Other forms of impermissible
coercion may be more subtle, and may include threats to turn the
individual over to others to be abused; subjecting the individual to
impermissible humiliating or degrading treatment; implying harm to the
individual or his property. Other prohibited actions include implying a
deprivation of applicable protections guaranteed by law because of a
failure to cooperate; threatening to separate parents from their
children; or forcing a protected person to guide US forces in a
dangerous area.
Cruel
Under section 1003(d) of the Detainee Treatment Act and section
6(c)(2) of the Military Commissions Act of 2006, the term ``cruel,
inhuman, or degrading treatment or punishment'' means:
the cruel, unusual, and inhumane treatment or punishment
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States, as defined in the United States
Reservations, Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment done at New York, December 10, 1984.
The Military Commissions Act of 2006 further provides:
``(12) CRUEL OR INHUMAN TREATMENT.--
``(A) OFFENSE.--Any person subject to this chapter who commits an
act intended to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another within his
custody or control shall be punished, if death results to the victim,
by death or such other punishment as a military commission under this
chapter may direct, and, if death does not result to the victim, by
such punishment, other than death, as a military commission under this
chapter may direct.
``(B) DEFINITIONS.--In this paragraph:
``(i) The term `serious physical pain or suffering' means bodily
injury that involves--
``(I) a substantial risk of death;
``(II) extreme physical pain;
``(III) a burn or physical disfigurement of a serious nature
(other than cuts, abrasions, or bruises); or
``(IV) significant loss or impairment of the function of a bodily
member, organ, or mental faculty.
``(ii) The term `severe mental pain or suffering' has the meaning
given that term in section 2340(2) of title 18.
``(iii) The term `serious mental pain or suffering' has the
meaning given the term `severe mental pain or suffering' in section
2340(2) of title 18, except that--
``(I) the term `serious' shall replace the term `severe' where it
appears; and
``(II) as to conduct occurring after the date of the enactment of
the Military Commissions Act of 2006, the term `serious and non-
transitory mental harm (which need not be prolonged)' shall replace the
term `prolonged mental harm' where it appears.
Humiliating
The Supreme Court determined that Common Article 3 to the Geneva
Conventions of 1949 applies as a matter of law to the conflict with al
Qaeda. Common Article 3 prohibits outrages upon personal dignity, in
particular, humiliating and degrading treatment. There is no definition
of humiliating in Common Article 3 or the Geneva Conventions of 1949.
Degrading
Under the Detainee Treatment Act, Section 1003(d) and the Military
Commissions Act of 2006, the term ``cruel, inhuman, or degrading
treatment or punishment'' means:
the cruel, unusual, and inhumane treatment or punishment
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States, as defined in the United States
Reservations, Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment done at New York, December 10, 1984.
Indignities
There is no definition of the term ``indignity'' in Department of
Defense policies or regulations. As stated above, the Supreme Court has
determined that Common Article 3 to the Geneva Conventions of 1949
applies as a matter of law to the conflict with al Qaeda. Common
Article 3 prohibits outrages upon personal dignity. There is no
definition of the term ``outrages upon personal dignity'' in Common
Article 3 or the Geneva Conventions of 1949.
Inhuman:
Under the Detainee Treatment Act, Section 1003(d) and the Military
Commissions Act of 2006, the term ``cruel, inhuman, or degrading
treatment or punishment'' means:
the cruel, unusual, and inhumane treatment or punishment
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
Constitution of the United States, as defined in the United States
Reservations, Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment done at New York, December 10, 1984.
The Military Commissions Act of 2006 further provides:
``(12) CRUEL OR INHUMAN TREATMENT.--
``(A) OFFENSE.--Any person subject to this chapter who commits an
act intended to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another within his
custody or control shall be punished, if death results to the victim,
by death or such other punishment as a military commission under this
chapter may direct, and, if death does not result to the victim, by
such punishment, other than death, as a military commission under this
chapter may direct.
``(B) DEFINITIONS.--In this paragraph:
``(i) The term `serious physical pain or suffering' means bodily
injury that involves--
``(I) a substantial risk of death;
``(II) extreme physical pain;
``(III) a burn or physical disfigurement of a serious nature
(other than cuts, abrasions, or bruises); or
``(IV) significant loss or impairment of the function of a bodily
member, organ, or mental faculty.
``(ii) The term `severe mental pain or suffering' has the meaning
given that term in section 2340(2) of title 18.
``(iii) The term `serious mental pain or suffering' has the
meaning given the term `severe mental pain or suffering' in section
2340(2) of title 18, except that--
``(I) the to `serious' shall replace the term `severe' where it
appears; and
``(II) as to conduct occurring after the date of the enactment of
the Military Commissions Act of 2006, the term `serious and non-
transitory mental harm (which need not be prolonged)' shall replace the
term `prolonged mental harm' where it appears.