[Senate Hearing 109-471]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 109-471
 
REVIEW OF DEPARTMENT OF DEFENSE DETENTION AND INTERROGATION POLICY AND 
               OPERATIONS IN THE GLOBAL WAR ON TERRORISM

=======================================================================

                                HEARINGS

                               before the

                      COMMITTEE ON ARMED SERVICES

                                  and

                       SUBCOMMITTEE ON PERSONNEL

                                 of the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                      MARCH 10; JULY 13, 14, 2005

                               __________

         Printed for the use of the Committee on Armed Services


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                      COMMITTEE ON ARMED SERVICES

                    JOHN WARNER, Virginia, Chairman

JOHN McCAIN, Arizona                 CARL LEVIN, Michigan
JAMES M. INHOFE, Oklahoma            EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas                  ROBERT C. BYRD, West Virginia
JEFF SESSIONS, Alabama               JOSEPH I. LIEBERMAN, Connecticut
SUSAN M. COLLINS, Maine              JACK REED, Rhode Island
JOHN ENSIGN, Nevada                  DANIEL K. AKAKA, Hawaii
JAMES M. TALENT, Missouri            BILL NELSON, Florida
SAXBY CHAMBLISS, Georgia             E. BENJAMIN NELSON, Nebraska
LINDSEY O. GRAHAM, South Carolina    MARK DAYTON, Minnesota
ELIZABETH DOLE, North Carolina       EVAN BAYH, Indiana
JOHN CORNYN, Texas                   HILLARY RODHAM CLINTON, New York
JOHN THUNE, South Dakota

                    Judith A. Ansley, Staff Director

             Richard D. DeBobes, Democratic Staff Director

                                 ______

                       Subcommittee on Personnel

              LINDSEY O. GRAHAM, South Carolina, Chairman

JOHN McCAIN, Arizona                 E. BENAJAMIN NELSON, Nebraska
SUSAN M. COLLINS, Maine              EDWARD M. KENNEDY, Massachusetts
SAXBY CHAMBLISS, Georgia             JOSEPH I. LIEBERMAN, Connecticut
ELIZABETH DOLE, North Carolina       DANIEL K. AKAKA, Hawaii

                                  (ii)

  
?



                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

 The Review of Department of Defense Detention Operations and Detainee 
                        Interrogation Techniques

                             march 10, 2005

                                                                   Page

Church, VADM Albert T. III, USN, Director of the Navy Staff......     7

 The Investigation into Federal Bureau of Investigation Allegations of 
     Detainee Abuse at the Guantanamo Bay, Cuba, Detention Facility

                             july 13, 2005

Craddock, GEN Bantz J., USA, Commander, U.S. Southern Command; 
  Accompanied by Lt. Gen. Randall M. Schmidt, USAF, Senior 
  Investigating Officer; and BG John T. Furlow, USA, 
  Investigating Officer..........................................    79

  Military Justice and Detention Policy in the Global War on Terrorism

                             july 14, 2005

Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........   163
Dell'Orto, Daniel J., Principal Deputy General Counsel, 
  Department of Defense..........................................   169
McGarrah, RADM James M., CEC, USN, Director, Office of the 
  Administrative Review of Detention of Enemy Combatants.........   175
Hemingway, Brig. Gen. Thomas L., USAF, Legal Advisor to the 
  Appointing Authority for the Office of Military Commissions....   180
Barr, Hon. William P., Former Attorney General of the United 
  States.........................................................   203
Saltzburg, Professor Stephen A., Wallace and Beverley Woodbury 
  University Professor of Law, The George Washington University 
  Law School.....................................................   215
Hutson, John D., President and Dean, Franklin Pierce Law Center..   230

                                 (iii)


 THE REVIEW OF DEPARTMENT OF DEFENSE DETENTION OPERATIONS AND DETAINEE 
                        INTERROGATION TECHNIQUES

                              ----------                              


                        THURSDAY, MARCH 10, 2005

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:37 a.m. in room 
SH-216, Hart Senate Office Building, Senator John Warner 
(chairman) presiding.
    Committee members present: Senators Warner, McCain, Inhofe, 
Collins, Talent, Dole, Cornyn, Thune, Levin, Kennedy, 
Lieberman, and Reed.
    Committee staff members present: Judith A. Ansley, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Charles W. Alsup, 
professional staff member; Regina A. Dubey, research assistant; 
Gregory T. Kiley, professional staff member; Lynn F. Rusten, 
professional staff member; Scott W. Stucky, general counsel; 
Diana G. Tabler, professional staff member; and Richard F. 
Walsh, counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Gabriella Eisen, research assistant; 
Bridget W. Higgins, research assistant; Gerald J. Leeling, 
minority counsel; Peter K. Levine, minority counsel; and 
William G.P. Monahan, minority counsel.
    Staff assistants present: Alison E. Brill, Catherine E. 
Sendak, and Nicholas W. West.
    Committee members' assistants present: Cord Sterling, 
assistant to Senator Warner; Christopher J. Paul, assistant to 
Senator McCain; John A. Bonsell, assistant to Senator Inhofe; 
Mackenzie M. Eaglen, assistant to Senator Collins; Russell J. 
Thomasson, assistant to Senator Cornyn; Bob Taylor, assistant 
to Senator Thune; Mieke Y. Eoyang, assistant to Senator 
Kennedy; Erik Raven, assistant to Senator Byrd; Frederick M. 
Downey, assistant to Senator Lieberman; Darcia Tokioka, 
assistant to Senator Akaka; and William K. Sutey, assistant to 
Senator Bill Nelson.

          OPENING STATEMENT OF SENATOR JAMES M. INHOFE

    Senator Inhofe [presiding]. The meeting, the hearing, will 
come to order. I have just been informed that Senator Warner is 
stuck in traffic. So, Senator Levin, I will act like Senator 
Warner and start this off. The statement that I will make is 
not my statement; it is Senator Warner's statement.
    The committee meets today to receive testimony on the 
Department of Defense (DOD) review of the detention operations 
and detainee interrogation techniques, commonly referred to as 
the Church Report. We welcome our witness, Vice Admiral Albert 
T. Church III, United States Navy, currently Director of the 
Navy Staff.
    I note that when Admiral Church started work on this review 
he was the Inspector General (IG) of the Navy. We thank Admiral 
Church and all members of his team for the excellent work they 
have done on this issue.
    On May 25, 2004, Secretary of Defense (SECDEF) Rumsfeld 
formally directed Admiral Church to review all DOD detention 
procedures and defense interrogation techniques that were being 
used in the global war on terrorism. I quote from Secretary 
Rumsfeld's directive: ``Specifically, you will ensure that all 
areas of concern to the Department of Defense regarding 
detention operations, including interrogation techniques, are 
being addressed adequately and expeditiously. You will report 
to me any gaps or seams among those reviews and 
investigations.''
    This is the tenth major senior level review of detainee 
operations and allegations of detainee abuse that has been 
completed, nine by various elements of the Department and one 
by an independent panel. Since the abuses at Abu Ghraib were 
discovered in January 2004, one additional senior level 
investigation has recently been initiated by the Department to 
review Federal Bureau of Investigations (FBI) allegations of 
abuse at the detention facility of Guantanamo Bay (Gitmo) in 
2002. These allegations were brought to the attention of the 
DOD in December of last year.
    This committee has been very responsive in its oversight. 
This is the eighth open hearing that we have conducted on these 
issues. In addition, we have had a number of classified 
briefings. The Church Report was initiated to provide a 
comprehensive evaluation of DOD detention operations and the 
role interrogation procedures may or may not have played in the 
abusive treatment of detainees.
    Admiral Church has conducted what appears to be a thorough 
review, analyzing all previous reports and conducting over 
8,900 new interviews, including uniformed personnel of all 
ranks and levels of command and senior policy officials. I now 
cite two conclusions of the Church Report, and I am quoting 
now, ``Number one, we found no link between approved 
interrogation techniques and detainee abuse. Number two, we 
note therefore that our conclusion is consistent with the 
findings of the independent panel''--that is, the Schlesinger 
panel--``which in its August 2004 report determined that''--and 
quoting from that report--`No approved procedures called for or 
allowed the kind of abuse that in fact occurred.' There is no 
evidence of that policy of abuse promulgated by senior 
officials or military authorities.''
    In my judgment, these findings are consistent with the 
findings of all previous reports. According to the Church 
Report, the 70 incidents of substantiated abuse were quoting 
from the Church Report, ``perpetrated by a variety of Active-
Duty, Reserve, and National Guard personnel from three 
different Services, on different dates, and in different 
locations throughout Afghanistan and Iraq, as well as a small 
number of cases at Gitmo.''
    Admiral Church concludes that: ``There is not a single 
overarching reason for abuse, but that the stressful combat 
situation, particularly at the point of capture,'' and, as 
Admiral Church characterized it, ``a breakdown of good order 
and discipline in some units could account for some incidents 
of abuse.''
    This does not excuse the abuses that did occur, but I 
believe it is important to put this discussion in context. As 
we meet this morning, a large number of trials by court martial 
have been completed and sentences have been rendered. In a 
great many of these cases, the military defendants pled guilty. 
Additional criminal procedures are ongoing. We have shown the 
world that we are a Nation of laws and that we will not 
tolerate abusive, inhumane behavior by members of our Armed 
Forces, we will investigate wrongdoing and hold accountable 
those responsible for misconduct.
    To date over a million U.S. service men and women have 
served in Iraq and Afghanistan and have served with 
distinction. As of the date of this report, 36 service 
personnel have been convicted of criminal misconduct and a few 
more trials are pending. As Admiral Church noted, ``The vast 
majority of detainees held by U.S. forces during the global war 
on terrorism have been treated humanely.''
    The Church Report found that no policy promulgated by the 
Department either advocates or encourages abusive or inhumane 
treatment of detainees. The report also found that approved 
interrogation policies did not lead to illegal or abusive 
interrogation techniques being used. The Church Report candidly 
pointed out that, ``dissemination of interrogation policy in 
Iraq and Afghanistan was generally poor and interrogators fell 
back on their training and experience, often relying on a broad 
interpretation of Army Field Manual (FM) 34-52.''
    The Church Report continues, ``While these problems of 
policy dissemination and compliance were certainly cause for 
concern, we found that they did not lead to the employment of 
illegal or abusive interrogation techniques.'' Admiral Church 
found that ``interrogators knew that abusive behavior was 
prohibited. There are very few allegations of abuse by trained 
interrogators in established detention centers. Many of the 
allegations of interrogation-related abuse originated at the 
point of capture, in the immediate aftermath of the heat of 
battle.''
    In the period of time since these allegations of abuse 
first surfaced, the DOD has been steadfast in examining its 
procedures and implementing constructive changes as 
appropriate. The Department of the Army in particular, which 
has principal responsibility for the conduct of detention and 
interrogation operations, has updated training procedures and 
doctrine to ensure the proper treatment of detainees and the 
effective conduct of interrogators. These steps taken by the 
DOD and the military Services, as well as the continuing 
reviews of issues of individual accountability throughout the 
chain of command, will be the subject of a future hearing by 
this committee.
    The members of the U.S. Armed Forces have been tarnished by 
these isolated incidents of abuse by a few within their ranks, 
but they have shown their typical honor and resilience by the 
manner in which they have responded. We must remember that the 
vast majority of our brave men and women in uniform are 
performing remarkable tasks on a daily basis in austere, 
stressful environments, and in some cases making the ultimate 
sacrifice of life and limb to win the war on terror.
    We honor their service and that of their families. Our 
efforts in gathering this information and openly discussing it 
with the American people and with the world are intended to 
strengthen our Armed Forces.
    I thank our witness and his team for this report and I 
thank you for coming, and continuing to serve our Nation, 
Admiral Church.
    Senator Levin.

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. Thank you, and let me also welcome Admiral 
Church. Today we hear from Admiral Church on his investigation 
into detention operations and technologies in Iraq, 
Afghanistan, and Gitmo. Vice Admiral Church's investigative 
team has done extensive work, collecting hundreds of statements 
and reviewing thousands of documents. I would like to thank 
you, Admiral, and your team for that service.
    The Church Report is not and does not purport to be a 
comprehensive report. It does not fill many of the significant 
gaps left by earlier investigations regarding the nature and 
causes of detainee abuse in Iraq, Afghanistan, Gitmo, and 
elsewhere. One gap in the investigations to date is what was 
the role of ``other government agencies,'' primarily the 
Central Intelligence Agency (CIA), in detainee abuse. General 
Fay's report found that CIA practices, ``led to a loss of 
accountability, abuse, and an unhealthy mystique that further 
poisoned the atmosphere at Abu Ghraib.''
    However, General Fay was unable to fully investigate the 
CIA's role in detainee abuse because the CIA denied his request 
for documents. Both the Taguba and Fay reports highlight the 
problem of unaccounted for CIA ghost detainees. The Schlesinger 
Panel was also aware of this issue, but had limited access to 
information on the CIA's role in detention operations. Vice 
Admiral Church's report states his team had limited cooperation 
from the CIA. The report also makes clear he was not tasked to 
investigate the existence of or policies in effect for 
detention facilities controlled by the CIA, rather than by the 
DOD.
    A second major gap in the DOD-led investigations which the 
Church Report fails to address is the issue of senior 
leadership responsibility for creating an environment which 
either contributed to abusive behavior, or which condoned or 
tolerated, or appeared to condone or tolerate such behavior. 
The Schlesinger Panel Report found that abuses were widespread 
and that there was both ``institutional and personal 
responsibility at higher levels.'' Matters of personal 
accountability were explicitly outside of the scope of the 
Schlesinger Panel's tasking from the DOD. So there has been no 
assessment of accountability of any senior officials, either 
within or outside of the DOD, for policies that may have 
contributed to abuses of prisoners.
    Numerous other gaps remain unaddressed by Admiral Church's 
report. For example, the Army IG in his assessment of detention 
operations, doctrine, and training looked only at Iraq and 
Afghanistan, not Gitmo. The Formica Report looked into 
allegations of abuse by Special Operations Forces only in Iraq, 
not Afghanistan or elsewhere. As a result, significant abuse 
allegations have fallen between the cracks.
    In addition, previous reports containing conflicting 
conclusions make it difficult to get a clear picture of the 
nature and causes of the abuses. These conflicting findings are 
not addressed in the Church Report. For example, reports are in 
conflict as to whether detainee abuse was systemic. General 
Taguba found ``systemic and illegal abuse of detainees'' by 
military police at Abu Ghraib. General Fay in his report found 
``systemic problems and abuses also contributed to the volatile 
environment in which abuses occurred,'' and included two dozen 
findings relating to systemic failures, including doctrine and 
policy concerns, leadership and command and control issues, 
resources, and training issues.
    On the other hand, the Army IG reporting in July 2004 was 
``unable to identify system failures that resulted in incidents 
of abuse.'' Vice Admiral Church's report notes that, despite 
that statement of the IG of the Army, that the Army IG at 
another point ``recounted `numerous system failures' in his 
detailed findings which contributed to the detainee abuse.'' I 
hope that the Admiral will clarify for this committee whether 
he agrees with General Taguba and General Fay that systemic 
problems contributed to detainee abuse.
    Earlier reports found that policies and guidance at least 
indirectly contributed to abuses. The Schlesinger Panel Report 
says that interrogation policies were ``inadequate or deficient 
at three levels: DOD, Central Command (CENTCOM) Combined Joint 
Task Force (CJTF), and Abu Ghraib Prison.'' That report, the 
Schlesinger Report, adds that changes in DOD interrogation 
policies approved by the SECDEF contributed to confusion in the 
field about what methods were authorized.
    Perhaps most significantly, the Schlesinger Panel found 
that ``both institutional and personal responsibility at higher 
levels,'' for widespread abuses, not just at lower levels. 
Similarly, General Fay found that multiple ``national policies 
and DOD directives'' were inconsistent with Army doctrine and 
resulted in interrogation policies that contributed to the 
confusion at Abu Ghraib.
    But the Church Report concludes that approved interrogation 
techniques were not a ``causal factor'' of detainee abuse: they 
were simply ``missed opportunities'' in the process of 
developing policies on detainee operations. There is not even a 
determination that we can find in the Church Report as to 
whether or not detainee abuse would have been reduced or 
avoided had those missed opportunities been acted upon.
    In addition, the Church Report's assessment that there were 
simply ``missed opportunities'' is difficult to reconcile with 
the facts set forth in the report itself. Simply concluding 
that there were ``missed opportunities'' does not adequately 
explain why Secretary Rumsfeld approved aggressive 
interrogation techniques for use at Gitmo in December 2002 
including stress positions, 20-hour interrogations, nudity, and 
the use of dogs in interrogations. He approved those in the 
face of serious concerns about such techniques which had been 
forwarded by military lawyers from all four Services to the 
Joint Staff.
    Simply saying that there were ``missed opportunities'' does 
not explain why the Office of the Secretary of Defense (OSD) 
failed to promulgate an interrogation policy for Afghanistan 
consistent with the amended policy approved for Gitmo in April 
2003, even though, according to the Vice Chairman of the Joint 
Chiefs of Staff, General Peter Pace, the Chairman of the Joint 
Chiefs sent up a recommendation that the same interrogation 
guidelines apply in both places.
    The bland label of ``missed opportunities'' does not 
explain the absence of policies governing the conduct of CIA 
interrogators at DOD facilities, which contributed to abuses at 
Abu Ghraib and elsewhere. Those are all failures of command at 
high levels.
    It is also difficult to reconcile the notion of ``missed 
opportunities'' with policies that have come to light since 
Admiral Church apparently ended his investigation in September 
2004. A few months ago, the Justice Department (DOJ) confirmed 
the existence of a memo relating to the authority to use 
specified interrogation techniques, a memo produced by their 
Office of Legal Counsel (OLC) concurrently with the August 1, 
2002, ``Torture'' memo that was so flawed that the 
administration disavowed it in mid-2004. Just in the past few 
months, we have learned of FBI agents' strong objections to 
aggressive and coercive interrogation techniques at Gitmo, 
which FBI agents in one e-mail labeled ``torture'' and in a 
number of e-mails deemed so disturbing that agents had guidance 
to ``step out of the picture'' when the military were carrying 
out interrogations. The Gitmo commanders defended these methods 
by saying that the DOD has their ``marching orders'' from the 
SECDEF.
    Nor does the Church Report explain recent revelations that 
the administration reportedly authorized the CIA to engage in 
rendition, the handing over of detainees to foreign countries, 
including ones with a track record of torture.
    This failure of accountability of senior leaders sends the 
wrong signal to our troops and to the American people. It harms 
the United States' standing as a Nation of laws and it 
undermines the high standards of our Armed Forces. It places 
our brave and honorable military men and women in jeopardy when 
they become prisoners.
    In the end, I conclude that the DOD is not able to assess 
accountability at senior levels, particularly when 
investigators are in the chain of command of the officials 
whose policies and actions they are investigating. Only an 
independent review can fully and objectively assess both the 
institutional and personal accountability for the abuse of 
detainees.
    I thank you, Mr. Chairman.

           STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN

    Chairman Warner [presiding]. Thank you, Senator.
    I apologize for my tardiness. Senator Inhofe, I appreciate 
your taking my statement.
    As Senator Inhofe said on my behalf, this committee will 
have at least one more hearing on this subject on the issue of 
accountability. As I listened to your final comments, I say 
most respectfully to my colleague there has not been a finality 
in terms of the assessment of accountability of either senior 
policy people or senior officers. There remains open, as you 
are probably aware, the Army review of its senior officers. So 
more work has to be done by this committee.
    We welcome you, Admiral, and thank you very much for 
undertaking this very prodigious and challenging effort.

 STATEMENT OF VADM ALBERT T. CHURCH III, USN, DIRECTOR OF THE 
                           NAVY STAFF

    Admiral Church. Thank you, Senator Warner, Senator Levin, 
and thank you to the members of the committee for the 
opportunity to be here today.
    Chairman Warner. I want you to draw that mike up like a 
bullhorn and work on it.
    Admiral Church. Yes, sir.
    Chairman Warner. There we go, straight on.
    Admiral Church. I hope it is on. There we go.
    Chairman Warner. It is on.
    Admiral Church. I have a short opening statement, sir, if I 
may.
    Approximately 10 months ago, the Secretary of Defense 
tasked me with some very specific things that he wanted done. 
The first of that was to look at all the interrogation 
techniques that had ever been considered, authorized, employed, 
or prohibited in any theater at any time. He asked me to 
specifically look at the issue of migration, had the techniques 
migrated, where and when. He specifically tasked me to analyze 
and review DOD support to or participation in the interrogation 
activities of non-DOD activities.
    He asked me to work in direct support of the independent 
panel chaired by the Honorable James Schlesinger, which we did. 
I would add that the data that they had in their report came 
from our group and we supported their findings and reviewed 
their work as well.
    Implicit in that tasking was to determine whether and to 
what extent the nature and migration of all these interrogation 
techniques directly or indirectly resulted in detainee abuse 
that we have all become familiar with. As has been mentioned 
earlier, he asked me to look at gaps and seams. We did that. We 
expanded our tasking to look at International Committee of the 
Red Cross (ICRC) issues, medical issues, and contract 
interrogators, as an example.
    I believe my investigation was thorough and exhaustive. We 
conducted over 800 interviews, the majority of which resulted 
in sworn statements. We took interviews or written statements 
from senior civilian and military leaders in the Pentagon. We 
reviewed thousands of pages of documents based on data calls 
from the Pentagon, from the combatant commanders. We did 
leverage all the other ongoing investigations so as not to re-
investigate that which had already been investigated. We looked 
very carefully at the 70 completed cases of abuse, the criminal 
cases, to see if there is anything in those that related to 
interrogation or interrogation techniques.
    Finally, I would like to give you, as has been mentioned 
earlier today, a backdrop to some of my findings. It was clear 
to us during the investigation that if we are going to win the 
global war on terror we have to have intelligence, and embodied 
in that is we need human intelligence. As has been mentioned 
also, the overwhelming majority of our service members have 
served honorably under very difficult and challenging 
conditions. The vast majority of detainees have been treated 
humanely and appropriately, and when that was not the case that 
has been investigated.
    My key findings: that clearly there was no policy, written 
or otherwise, at any level that directed or condoned torture or 
abuse; there was no link between the authorized interrogation 
techniques and the abuses that in fact occurred. Nevertheless, 
we did identify problems with dissemination, development, 
migration of the interrogation techniques both in Afghanistan 
and Iraq, and we documented another problem, which is a lack of 
field-level guidance for the interaction of DOD and other 
government agency personnel.
    Also previously mentioned, with the benefit of hindsight we 
saw several missed opportunities, two missed opportunities. The 
lessons of prior unconventional conflicts were never 
specifically communicated to our troops as a means of lessons 
learned; and no guidance or interrogation techniques were 
promulgated for Afghanistan or Iraq either to CENTCOM or by 
CENTCOM.
    I would like to make several quick points on the detainee 
abuse. Of the 70 closed cases, 6 were deaths, 26 were serious, 
and 38 were minor abuse cases, as we categorize them. 
Approximately one-third of these cases occurred at the point of 
capture, where emotions run very high. The majority of these 
cases, even those considered interrogation-related, as we find 
them consisted of simple assaults--punching, kicking, and 
slapping detainees. We looked for any discernible pattern of 
abuse and we were unable to find it. It varied by unit, Active 
Duty, Guard, Active Reserve, Guard, in different theaters. As 
the independent panel stated: ``No approved procedures called 
for or allowed the kinds of abuses that in fact occurred.''
    Finally, a quick word about the FBI documents. We were 
aware of the 14 July 2004 memo that highlighted three 
instances. That was sent to us by the Army. Two of those 
incidents had previously been investigated. The Army Criminal 
Investigation Division (CID) began an investigation on the 
third one. Last Friday, I had a meeting with the current Naval 
IG, who is going over the Freedom of Information Act (FOIA) 
requests, and General Furlow from Southern Command (SOUTHCOM), 
who is doing an investigation of the specific incidents, and I 
would be happy to answer questions on the progress of those two 
ongoing investigations later.
    That concludes my comments, sir, and I look forward to your 
questions.
    Chairman Warner. Thank you very much, Admiral.
    We will proceed to have a 6-minute initial questioning by 
members.
    Admiral, let us get directly to the evidence that the 
American people and indeed the world saw by virtue of these 
pictures, tragic pictures. I mean, incomprehensible almost to 
say a person like me, who has had the privilege of a half 
century of association with the men and women of the Armed 
Forces.
    However, apart from those pictures you have described other 
types of infractions which do not have a pictorial record. 
Largely you learned of them through testimony. I think it is 
important that we lay before the public the full range of 
tortures with some specificity. The pictures were explicit, 
tragic. Were there other types of incidents which you felt 
resulted in bringing people to trial which we do not have in 
mind fully as to what occurred?
    Admiral Church. The work that we did, Senator, everything 
that is alleged is being investigated, if that is the question.
    Chairman Warner. I am not suggesting it is not being 
investigated. But I think we have to have a full understanding 
of the types of wrongdoings that were perpetrated. The pictures 
captured certainly what went on in that prison, but there are 
other incidents, for instance at the point of detention in the 
heat of battle, and often there is extenuating circumstances in 
the heat of battle for those who are making that apprehension.
    In other words, I want to hear in the record as best we can 
a description of other things that were the basis for these 
trials, that we have not seen by virtue of those pictures.
    Admiral Church. It is the full range, Senator. We have six 
deaths of those who were detainees. There are a number of 
detainee deaths. Most of them were by natural causes. We looked 
at every single detainee death. There were six of those.
    Chairman Warner. You say by natural causes. The deaths 
resulted as a result--excuse me--resulted because of blows to 
the system, I suppose?
    Admiral Church. No, sir. Natural causes were--we looked at 
all the deaths, all the detainee deaths, to ensure that 
anything that looked problematic was further investigated. 
There are 6 of the 70 abuse cases that are closed that involved 
detainee deaths, and I am trying to answer your question on the 
range of problems. That was the far end.
    To the low end, you could probably go to Gitmo, where there 
were incidents of slapping or what we call minor abuse cases. 
There were a couple of sexual assaults that were in that 70 at 
the high end, and there was the range all the way in between.
    Chairman Warner. The ICRC performed and has throughout 
contemporary history, I mean going back many years, a very 
valuable service of trying to monitor the detainee situations 
worldwide. They were active participants in this case, and in a 
closed session of this hearing this morning which will follow 
the open session we will ask you to give us further details of 
their involvement.
    But on the whole, do you feel their involvement was 
constructive and did it provide reasonable early warning to our 
chains of command that reviewed these reports?
    Admiral Church. I do, Senator. I think it was very 
positive. I think the reactions to the ICRC reports were in 
general very good, but in a couple cases the reaction was not 
as swift or comprehensive as it could have been, and Abu Ghraib 
is one example.
    Chairman Warner. The responsibility of individual leaders. 
In your report you talk about the deterioration of good order 
and discipline in some units and the related failure of unit-
level leadership to react to warning signs and stressful 
conditions and how this may have contributed to some incidents 
of abuse.
    To what do you attribute this breakdown of good order and 
discipline in the United States military? To what levels did 
these failures of leadership extend in your judgment? What 
recommendations do you make to prevent or reduce such 
breakdowns of good order and discipline in the future, because 
in a subsequent hearing of this committee--I mean, we will 
eventually get into exactly what corrective measures the DOD 
and other agencies and departments to some extent have taken in 
that breakdown. But they will draw on your report. Much has 
been done already, but I am sure this report will further 
refine the steps that have been done.
    So let us talk about your professional judgment. You are an 
officer of extraordinary capabilities and distinction in your 
own career, and to what do you attribute this breakdown of good 
order and discipline?
    Admiral Church. Let me answer in two parts, Senator. Having 
come to the conclusion, having looked at the 70 closed cases, 
that the interrogation techniques were not a causal factor in 
the abuse that happened, I felt it was important to try to 
offer an opinion as to, if that was not--and this is my best 
military judgment, having looked at this for 9 months--what did 
cause the abuse?
    As I noted, a third of these happened at the point of 
capture, which is where emotions run high. Then after that it 
became----
    Chairman Warner. Now let us make it clear to those 
following this hearing. At the point of capture, you mean in 
the field?
    Admiral Church. In the field.
    Chairman Warner. Where there is active combat in many 
instances either going on or there are combat conditions, an 
individual is apprehended.
    Admiral Church. Yes, sir.
    Chairman Warner. As you said, emotions, and not only that, 
time is measured in microseconds in trying to make a capture 
and then get back and protect yourselves. So go ahead.
    Admiral Church. That is exactly right, Senator. Of course, 
that is--once a detainee is captured, the rules change, and 
people have to be aware of that. That is where a third of this 
happened.
    I said about 20 of the incidents involved--were 
interrogation-related, and I used a very expansive definition 
of that. Anything that involved a military interrogator (MI), 
if an MI was in the area, if it was a military police (MP), 
even a debriefing at point of capture, I called that 
interrogation-related, frankly so I would not be challenged on 
not including that. Very little of this involved interrogation.
    So you are left really with looking at each individual case 
and saying, what happened? The events of Abu Ghraib are a 
shining example where you ask the question, where was the 
leadership? Not only the noncommissioned officers (NCOs), but 
the mid-grade officers, who--I use the analogy of a ship 
because that is my background. You can get an illegal order and 
it does not matter; you are still responsible for the safety of 
that ship. To me, that is where the breakdown was, and the 
remedies are--we could talk about that for a long time. It is 
accountability at that level.
    Chairman Warner. Thank you, Admiral.
    Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    Admiral, according to your report, in response to a Joint 
Chiefs of Staff (JCS) request for comments on the request from 
Gitmo commanders in November 2002 for authorization to use more 
aggressive interrogation techniques, military service lawyers 
expressed ``serious reservations'' about approving the proposed 
interrogation techniques without further legal and policy 
review. What was the nature of their serious reservations?
    Admiral Church. They felt that the techniques were too 
aggressive, that they needed additional legal review if they 
were in fact lawful.
    Senator Levin. Were those concerns brought to the attention 
of Secretary Rumsfeld prior to his December 2, 2002, approval 
of additional aggressive interrogation techniques?
    Admiral Church. Nobody was able to succinctly answer that 
question, because I think it was overcome by events. That was 
my opinion.
    Senator Levin. So you were not able to determine whether--
--
    Admiral Church. With absolute certainty, no, sir.
    Senator Levin. Okay. Now, there was a DOD working group on 
interrogation techniques which was initiated in January 2003. 
That working group ultimately recommended interrogation 
techniques for use against enemy combatants and most of the 
recommendations were adopted. However, as you note in the body 
of your report, you show that the working group, in which 
military lawyers were participating, was stopped from 
developing its own legal analysis and instead was required to 
accept the legal analysis contained in a memorandum from the 
DOJ OLC, a memorandum with which the working group strongly 
disagreed.
    According to your report, that memo, entitled ``Military 
Interrogation of Alien Unlawful Combatants,'' was prepared by 
Deputy Assistant Attorney General John Yu for DOD General 
Counsel Haynes, and that memo had a date of March 14, 2003. 
This memo was presented, as your report indicates, to the 
working group as ``controlling authority'' on all legal issues.
    I want to refer to the March 14, 2003, memo from now on. 
Access of working group members to this memo was apparently 
restricted, as you noted, and no notes were permitted. You also 
noted that conclusions of that memo are nearly identical to 
those of the August 1, 2002, OLC memo which is known as the 
torture memo, which the administration disavowed in the middle 
of last year. Among other things it concluded that for physical 
pain to amount to torture it had to be equivalent to the pain 
accompanying ``organ failure, impairment of bodily functions, 
or even death.''
    So basically that working group in the DOD was told they 
had to follow this March 14 memo from Deputy Assistant Attorney 
General Yu to Mr. Haynes.
    My question is, did you have access to that March memo?
    Admiral Church. Yes, sir, we did.
    Senator Levin. Do you have a copy of it?
    Admiral Church. No, sir, we did not get a copy. We went and 
read it and took notes.
    Senator Levin. Were you allowed to take a copy of it?
    Admiral Church. No, sir, we did not take a copy.
    Senator Levin. So even in your classified report there is 
no copy of that memo, is that correct?
    Admiral Church. That is correct, sir.
    Senator Levin. Has that memo been superseded, like the 
``torture'' memo on which it was based? Do you know?
    Admiral Church. I would have to get back to you, sir. I 
cannot say for certain.
    [The information referred to follows:]

    The March 14, 2003, Office of Legal Counsel (OLC) memorandum, which 
drew upon the August 2002 OLC memorandum, has not been explicitly 
superseded. However, the current legal guidance applicable to the 
Department of Defense is contained in the December 2004 OLC memorandum, 
which superseded the August 2002 memorandum.

    Senator Levin. Now, General Pace stated that on May 15, 
2003, the Chairman of the Joint Chiefs sent up a memo 
recommending that the same interrogation guidelines be issued 
to CENTCOM as existed for Gitmo. This request from the Chairman 
and recommendation was sent to the Office of the Secretary of 
Defense (OSD). Do you know whether the OSD responded to the 
Chairman's May 15, 2003, letter with that recommendation?
    Admiral Church. There was no response that I am aware of, 
sir.
    Senator Levin. Did you find any evidence explaining why the 
OSD failed to act on the recommendation?
    Admiral Church. Not specifically, sir.
    Senator Levin. You made reference to the FBI memos. In 
December of last year the FBI released e-mails under a FOIA 
request in which FBI agents described the DOD interrogation 
techniques in use at Gitmo as torture and stated in their e-
mails the following, this is one FBI agent talking to another: 
``When I return to DC, I will bring a copy of the military's 
interview plan. You won't believe it.''
    Are you familiar with that memo?
    Admiral Church. Yes, sir.
    Senator Levin. Did you see the plan?
    Admiral Church. I believe, if that is the one you are 
referring to, I believe I did, yes, sir.
    Senator Levin. That plan was described as containing 
coercive techniques in the military's interviewing tool kit. 
Are you familiar with those coercive techniques?
    Admiral Church. I think we are referring to the same 
incident, sir.
    Senator Levin. Would you agree those were coercive 
techniques, the way the FBI described them?
    Admiral Church. There were a couple of interrogations that 
I would classify as humane but coercive.
    Senator Levin. Do you have a copy of those documents that 
the FBI referred to in your classified report?
    Admiral Church. I believe it is in the backup material, 
sir. If not, we will get it.
    [The information referred to follows:]
      
    
    
      
    The FBI e-mail refers to a specific interrogation plan approved by 
the Secretary of Defense for use with one ``high-value'' detainee who 
had resisted interrogation for many months and was believed to possess 
actionable intelligence that could be used to prevent attacks against 
the United States. The plan is described on pages 115-116 of my report.

    Senator Levin. Did you talk to those FBI agents about what 
they saw at Guantanamo?
    Admiral Church. We talked to folks that were with them. We 
talked to members of the Criminal Investigative Task Force 
(NCIS). They were all working collaboratively. So I am very 
familiar with the incidents that you are talking about.
    Senator Levin. You have talked to people who actually 
witnessed it in the FBI?
    Admiral Church. Not specifically.
    Senator Levin. Finally, the Schlesinger Panel found that 
abuses were widespread and ``the abuses were not just the 
failure of some individuals to follow known standards, and they 
are more than the failure of a few leaders to enforce proper 
discipline. There is both institutional and personal 
responsibility at higher levels.''
    Do you agree with that finding of the Schlesinger Panel?
    Admiral Church. Yes, sir. I do.
    Senator Levin. Have you identified anyone at higher levels 
who bears personal responsibility?
    Admiral Church. I have to give you a little bit of a longer 
answer, Senator. I worked very closely with the Schlesinger 
Panel and as we worked together it evolved that the issues of 
responsibility needed to be addressed. That was not in my 
charter, so it was understood that the Schlesinger Panel were 
going to make those calls.
    Senator Levin. Thank you.
    I thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    I know, Admiral Church, that the scope of your work goes 
far beyond Abu Ghraib, but I will confine my questions to just 
Abu Ghraib. First of all, I want to thank my colleagues who 
have been very nice to me, in spite of the fact that on May 4, 
2004, I was the skunk at the family picnic, and the picnic is 
still going on and I have not changed my opinion. At that time 
I felt and I still feel today that the relationship between the 
quality of interrogation and the quality of intelligence and 
American lives is there and it is very important.
    Let me first of all--it was my understanding then, it is my 
understanding now, that the detainees that were held in Abu 
Ghraib, and I would specifically say in Cell Blocks 1A and 1B, 
were either actively involved in operational planning for 
attacks against our Coalition Forces or had already 
participated in attacks against our forces, and they were 
working on behalf of former Baathists now acting as insurgents 
or on behalf of terrorist leaders from outside of Iraq, such as 
Zarquawi. Is that your understanding?
    Admiral Church. That is my understanding, sir.
    Senator Inhofe. I have several questions and they can just 
be short answers if you would do that for me, Admiral. First of 
all, we have outlined the number of investigations and reports 
that have been coming. Some commentators have dismissed several 
of the previous reports as whitewash or coverups. Did you come 
across anything that would cause you to believe or suspect that 
any of these officials who conducted these investigations were 
pursuing an agenda other than seeking the truth? Did you find 
any evidence of that?
    Admiral Church. No, sir, I did not.
    Senator Inhofe. Regardless of whether you are talking about 
properly approved techniques or improperly approved techniques, 
did you ever find anything that sanctioned practices that 
showed up in the infamous photos at Abu Ghraib?
    Admiral Church. Senator, that was one of the key findings 
of the report. None of the instances that we saw in particular 
at Abu Ghraib----
    Chairman Warner. Can you pull that mike up a little bit.
    Admiral Church. Yes, sir; I am sorry.
    Chairman Warner. Your voice is just not projecting.
    Admiral Church. That was one of the key findings of my 
investigation, that none of the abuse cases that have been 
highlighted, that we are all familiar with, bear any 
resemblance to any policy or interrogation techniques that was 
ever considered or authorized.
    Senator Inhofe. Yes, I know that, but I think it is a key 
point that is worth repeating.
    Is it fair to say that, whatever confusion there might have 
been, no one could have reasonably believed that what we saw in 
those photos was in accordance with approved practices?
    Admiral Church. There has been a lot of discussion of the 
word ``confusion.'' Regardless of which copy or which operative 
standard operating procedure an interrogator was using, none of 
the abuses we saw would have been condoned.
    Senator Inhofe. All right, sir. Did you ever find any 
evidence to support the allegations that commanders preferred 
to ``look the other way''--and that is a quote out of some of 
the accusations--rather than investigate abuse if they could 
get away with it?
    Admiral Church. We did not find that.
    Senator Inhofe. In the winter and spring of 2003 there was 
a working group that was led by Air Force General Counsel Mary 
Walker that reviewed the law on interrogation practices and 
made a recommendation to the SECDEF on what techniques should 
be allowed at Gitmo. How many techniques did the working group 
recommend and how many did the SECDEF approve? Is it not 
correct that the SECDEF approved for use fewer than the total 
number of interrogation techniques approved by the working 
group? In other words, his directive was narrower than what the 
group concluded the law allowed?
    Admiral Church. The working group sent forward 35 
interrogation techniques. Based on advice of his General 
Counsel recommending restraint, the SECDEF approved 24.
    Senator Inhofe. All right, sir. Finally, I can recall when, 
even back in the days I was in the House of Representatives and 
certainly many years ago when I came to this body, serving on 
the Intelligence Committee, that human intelligence (HUMINT) 
went out of vogue for a while. There was an idea that somehow 
we are abusing people when we are going after HUMINT; it should 
all be done electronically or in some other means.
    In your report you say that intelligence-gathering, 
particularly HUMINT, has assumed greater importance in the war 
on terror. I would like to have you explain why it has assumed 
a greater role in this particular war on terror than in 
previous uses?
    Admiral Church. It is the nature of the enemy, sir. We do 
not know who they are, where they are. If we are going to learn 
anything about what might be around the corner, we have to have 
intelligence, and it is HUMINT that is going to be key.
    Senator Inhofe. Can you think of any, any group you might 
come upon where the potential of human intelligence would be 
any greater than those who are incarcerated, who were the 
detainees in the two cell blocks, 1A and 1B of Abu Ghraib?
    Admiral Church. That would be one good example, certainly.
    Senator Inhofe. It is a fertile field for intelligence-
gathering?
    Admiral Church. Certainly the detainees at Gitmo would fit 
that criteria.
    Senator Inhofe. I would assume that you would agree with me 
that there is a direct relationship between the quality of 
intelligence and American lives, our men and women in uniform?
    Admiral Church. We know that for a fact by some of the 
intelligence that we have gained.
    Senator Inhofe. You have done great work and I thank you 
for your service.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator.
    Senator Lieberman.
    Senator Lieberman. Thank you, Mr. Chairman.
    Admiral Church, good morning and thank you for your work. I 
wanted first to put in some perspective the cases that you 
investigated because, while no case of abuse is tolerable by 
this country, where as everyone has said and agreed we live by 
the rule of law even in the most difficult of circumstances of 
war, times of war on terror, I think it is important as we 
react, particularly to the pictures of Abu Ghraib that Chairman 
Warner referred to, about the numbers here.
    Am I correct as I saw in one version of the unclassified 
version of your report that your estimate is that there have 
been more than 50,000 detainees thus far in the global war on 
terrorism?
    Admiral Church. Yes, sir, at that point in time that was 
the figure.
    Senator Lieberman. So it is probably more now.
    Admiral Church. Yes, sir.
    Senator Lieberman. But that was at the point in time you 
wrote, September 30, 2004. That would include Iraq, 
Afghanistan, Guantanamo, and then other places where detainees 
may be held?
    Admiral Church. That was the best estimate, yes, sir.
    Senator Lieberman. As a result of your investigation you 
identified 70 cases of abuse that were substantive cases of 
abuse?
    Admiral Church. Yes, sir. We reviewed what the NCIS and the 
Army CIS had, which included reports from the field as well as 
the criminal misconduct. We reviewed everything that we could 
get our hands on.
    Senator Lieberman. Right. So my point is that 70 cases out 
of more than 50,000 detainees is about one-tenth of 1 percent 
of the detainees, and it justifies your conclusion that in the 
overwhelming majority of cases detainees to the best of our 
knowledge now have been treated within the standards that we in 
America would want detainees to be treated.
    If you go one level further, your judgment as given to the 
committee today is that there were 20 of those 70 cases of 
abuse that you found to be real, were associated with 
interrogation, then we are at about one 25th of 1 percent of 
all detainees. I just say this, not to minimize the offenses, 
but simply to put them in perspective, that most of the 
American personnel, service men and women, who are holding 
detainees and in fact interrogating them to the best of our 
knowledge are acting within the law. Is that your conclusion?
    Admiral Church. That is absolutely correct, Senator.
    Senator Lieberman. Let me ask you a factor related to the 
way you conducted the investigation. I was interested that you 
did not interview any of the detainees, but you did base a lot 
of your work on the report of the ICRC, which is certainly in 
our perspective an advocate or a protector at least of the 
detainees. Could you explain why you did not talk to any of the 
detainees?
    Admiral Church. First of all, the scope of the 
investigation really was to try to catalogue and document all 
the interrogation techniques, so that was where we started. As 
we expanded, I felt that the ICRC reports, the working papers, 
would give me a pretty good feel for what the detainees' 
complaints were. We will get into this in the next session, but 
from that, from looking at all the ICRC reports, we got a 
pretty good feel of what the complaints were and what the 
reactions to those complaints were, were they being followed 
up. That was the purpose of that particular section.
    Senator Lieberman. General Casey the other day suggested, 
and there is some reference to it in your report, that he 
recently issued a set of new procedures regarding the handling 
of detainees and which techniques were available appropriately 
to those carrying on interrogation or just the holding of the 
detainees.
    Could you elucidate for the committee at this time in some 
detail about what those additional safeguards are pursuant to 
General Casey's directive?
    Admiral Church. Senator, I will have to get back to you.
    [The information referred to follows:]

    The content of General Casey's new interrogation directive for U.S. 
military forces in Iraq is classified. A copy of the directive has been 
provided to the Senate Armed Services Committee.

    Admiral Church. I did read that subsequent to our 
investigation. I know he has come very much in line with 
Doctrine FM 34-52 and put in a number of safeguards and also 
clarified some ambiguities that he felt were left over from 
previous guidance.
    Senator Lieberman. Just for the record, give us a brief 
description of what Doctrine FM 34-52 is?
    Admiral Church. Sorry. That is the basic interrogation 
doctrine the Services all use. It lists 17 techniques, starting 
with direct approach. That is what was in effect for a good 
part of the initial global war on terror until we started 
expanding it.
    Senator Lieberman. I want to go back to the overall view 
and the perspective through which we look at this. I quote here 
your unclassified executive summary: ``Any discussion of 
military interrogation must begin with its purpose, which is to 
gain actionable intelligence in order to safeguard the security 
of the United States. Interrogation is often an adversarial 
endeavor. Generally, detainees are not eager to provide 
information and they resist interrogation to the extent that 
their personal character or training permits. Confronting 
detainees are interrogators whose mission is to extract useful 
information as quickly as possible. MIs are trained to use 
creative means of deception and to play upon detainees' 
emotions and fears when conducting interrogations of enemy 
prisoners of war, who enjoy the full protections of the Geneva 
Conventions. Thus, people unfamiliar with military 
interrogations might view a perfectly legitimate interrogation 
of an enemy prisoner of war in full compliance with the Geneva 
Conventions as offensive by its very nature.''
    Now, obviously some of what we saw at Abu Ghraib and some 
of what you have described go well beyond that. But it is 
important to set it in that context.
    I wanted to ask you this question in terms of detainee 
interrogation and the global war on terror. Do the existing 
procedures that govern interrogation make any distinction 
between--and I understand this can be a slippery slope--
detainees who may have general knowledge of enemy plans and 
detainees who we have reason to believe may have knowledge of 
an imminent terrorist operations?
    I know that there are circumstances in the so-called 
ticking time bomb case, where in other countries which attempt 
to live by the rule of law the standards of what can--of the 
nature of an interrogation of a detainee, can be quite simply 
more aggressive if there is a conclusion, reasonably arrived 
at, that the detainee has knowledge of the allegorical ticking 
time bomb, and if you break that detainee you can stop the bomb 
from exploding.
    Do our procedures now allow for those kinds of 
distinctions?
    Admiral Church. I will try to answer that, sir. The policy, 
the doctrine, the approved interrogation techniques, would not 
change based on what you know the intelligence, the value of 
the intelligence of the detainee. What might change is the 
interrogation plan of how you approach that, how you might use 
techniques in combination to try to get the information you 
use, and each interrogation plan might be different.
    I doubt that you would waste much time on somebody who was 
of little intelligence value, but you would probably spend a 
lot of time on somebody who had actionable intelligence that 
might save lives.
    Senator Lieberman. Thank you, Admiral.
    My time is up. Thanks, Mr. Chairman.
    Chairman Warner. Thank you, Senator.
    Senator McCain.
    Senator McCain. Admiral, thank you for your report.
    Are all of the interrogation techniques now in keeping with 
international law and with treaties that the United States of 
America is signatory to?
    Admiral Church. Yes, sir.
    Senator McCain. In your mind there is no doubt?
    Admiral Church. There is no doubt in my mind.
    Senator McCain. Is there in your mind a difference in the 
status of a Taliban prisoner who was captured in the war in 
Afghanistan and that of a terrorist who was apprehended in 
Omaha, Nebraska?
    In other words, is the Taliban guy, fighter, eligible for 
the Geneva Conventions for the Treatment of Prisoners of War, 
and is the terrorist caught in Omaha eligible?
    Admiral Church. The latter is. The first, as you remember 
from the President's----
    Senator McCain. The latter is eligible for Geneva 
Conventions?
    Admiral Church. A terrorist caught in the United States? 
Well, I am sorry----
    Senator McCain. Is he eligible for----
    Admiral Church. He is not a prisoner of war, so he would 
not fall into that category.
    Senator McCain. Okay. Is the Taliban prisoner fighting for 
the then-government of Afghanistan eligible for Geneva 
Conventions for the Treatment of Prisoners of War?
    Admiral Church. As you will remember, the President said 
that the Taliban had not conducted themselves in a manner that 
they would be considered parties to the Geneva. So the answer 
to your question is no, sir.
    Senator McCain. So the President of the United States has 
decided that the Taliban, even though there was a government 
recognized by some in Kabul, is not eligible?
    Admiral Church. He made that determination, yes, sir.
    Senator McCain. The North Vietnamese made the same 
determination about American prisoners?
    Admiral Church. Yes, sir.
    Senator McCain. But the Geneva Conventions clearly state 
that those who are fighting for a country and--in other words, 
in my view those who are fighting for the Afghan government, 
whether they were Taliban or average citizens, they were 
fighting in the army of that government of Afghanistan. How do 
you argue that they are not?
    Admiral Church. I am not sure that I am specially qualified 
to have the legal debate with you, sir, but----
    Senator McCain. I am not having a debate with you. I am 
asking you a question. You of all people should be well versed 
on what eligibility for treatment under what conditions should 
be.
    Admiral Church. I am, and I understand what the President 
said. He also said that they would be--all would be treated 
humanely and consistent with military necessity, in accordance 
with Geneva. So Geneva underpinned all of this, but----
    Senator McCain. So the United States policy now is that we 
decide when we are in a conflict whether the combatants of that 
nation are eligible for the Geneva Conventions or not?
    Admiral Church. Senator, in Iraq, Geneva Enemy Prisoner of 
War (EPW) applied. In Afghanistan and detainees in Gitmo, there 
were different rules.
    Senator McCain. So you have somebody who is captured. 
Different rules for--so you have somebody captured in Baghdad 
who was fighting for Saddam Hussein and they are sent to Abu 
Ghraib or another prison facility. Next to them is a combatant 
who was captured in Afghanistan, in the same cell. There is 
different treatment for those two prisoners?
    Admiral Church. There would be no different treatment at 
Gitmo, but the difference between the applicability of Geneva 
would be different.
    Senator McCain. Say that again?
    Admiral Church. The three different categories were----
    Senator McCain. I am going to ask you this example. Saddam 
Hussein's army versus Taliban army, both in the same prison.
    Admiral Church. Different rules apply, and as for al Qaeda 
they are different.
    Senator McCain. Does this not get a little confusing for 
the people who are in charge of developing specific policies 
for terrorism of prisoners?
    Admiral Church. I did not find that.
    Senator McCain. It is no problem?
    Admiral Church. I did not find that for the interrogators 
that was a problem, because they had the basic underpinning 
that humane treatment was to be observed at all times and they 
used the same set of techniques for the interrogations.
    So by the time it translated down to the interrogation 
piece that I was looking at, I didn't see much of a 
distinction.
    Senator McCain. You did not see much of a distinction.
    Admiral Church. No.
    Senator McCain. Do you not think there are specific 
protections under the Geneva Conventions for the Treatment of 
Prisoners of War that should not apply to terrorists?
    Admiral Church. I think I agree with you, sir.
    Senator McCain. My point here is, Admiral, that I do not 
believe that it is clear the difference in policy towards 
treatment of those who are eligible for the Geneva Conventions 
on the Treatment of Prisoners of War versus those that are not. 
I do not argue that Mohamed Atta is not eligible for the Geneva 
Conventions protection. What I am saying is, unless you have 
specific guidelines, then obviously if you treated those both 
the same you are either not doing quite maybe what you should 
to the terrorist and maybe not enough to protect, to be in 
compliance with a treaty that we signed.
    I worry, Admiral, very much that if we decide that a 
certain country's military personnel are not eligible for 
treatment under a convention that we signed, then what would 
be--would it not be logical to expect that they would declare, 
as the North Vietnamese did, that American prisoners are not 
eligible for protection under the Geneva Conventions?
    Admiral Church. Those were the arguments, yes, sir. I 
understand.
    Senator McCain. What is your opinion?
    Admiral Church. My opinion is that the President made the 
right call.
    Senator McCain. So everything is fine?
    Admiral Church. No, sir. I said I do not believe that the 
al-Qaeda should have--was eligible or should have been eligible 
because they did not meet the criteria.
    Senator McCain. Nor do I.
    Admiral Church. I do not believe that the Taliban by their 
behavior should have been eligible for EPW treatment.
    Senator McCain. Certainly the German SS should not have 
been eligible.
    Admiral Church. They wore a uniform, sir.
    Senator McCain. These guys wore a uniform of sorts.
    Admiral Church. But their behavior did not meet the 
criteria for EPW.
    Senator McCain. But the SS division's behavior was okay?
    Admiral Church. Sir, you asked me for my opinion and it is 
a good debate. That is my opinion.
    Senator McCain. Well, sir, I think it is a little more than 
a good debate, because I think this Nation may face other 
conflicts in the future and I am very concerned about what 
might happen to Americans who are taken prisoner unless we have 
clear and specific guidelines that we adhere to, including the 
Geneva Conventions where applicable under international law.
    I thank you, Mr. Chairman.
    Chairman Warner. Senator Kennedy.
    Senator Kennedy. Thank you. Thank you very much, Mr. 
Chairman.
    On page 124 of your report, Admiral Church, in the 
unclassified paragraphs you describe the initial meetings of 
the Haynes working group and their briefing from the OLC on the 
applicable law. Your report states that fairly early on in the 
working group process the OLC draft legal memorandum was 
presented to the action officers as the controlling authority 
for all questions of domestic and international law.
    This memoranda was basically the Biby torture memorandum, 
and you said the working group expressed a great deal of 
disagreement with the OLC analysis. In your report you write 
that ``Members of the working group were only permitted to read 
the memoranda in Mr. Haynes' or Ms. Walker's office, initially 
without taking notes.''
    In addition, you write that your investigators were not 
allowed to obtain this crucial memoranda either, but only could 
review it without taking verbatim notes.
    This memo has never been provided to the committee, despite 
our requests. This issue also highlights the involvement of Mr. 
Haynes.
    Now, the memo was--you said the working group expressed a 
great deal of disagreement with the OLC analysis. They said 
interrogation techniques should follow the Geneva Conventions, 
the Conventions Against Torture, and U.S. law. Now, that is not 
what the Haynes working group finally recommended. So, Admiral, 
could you tell us how this dispute was resolved? Were the 
members of the working group overruled?
    Admiral Church. Thank you for the question, Senator. I want 
to state initially that the value I think of my investigation 
is that I lay all this out. This has never been laid out 
before, so that we can understand exactly everything that went 
on in the determination of these techniques.
    As I did my research, I came to understand that what the 
DOJ had said was in fact binding on the DOD. So that was the 
legal underpinning that this group began working on. They 
ultimately, working through that, recommended 35 techniques. 
The Secretary of Defense approved 24, but again there was the 
underpinning of humane treatment that was in, not only in the 
memo, but also in the consideration.
    But you are correct, sir.
    Senator Kennedy. Well, I am not sure what I am correct 
about. I said the working group--you said the working group 
expressed a great deal of disagreement with the OLC analysis, 
and they said the interrogation should follow the Geneva. Now, 
I want to--I was asking how was that issue resolved? Here you 
have a number of the people that have had responsibility, are 
trained people, the Judge Advocate General (JAG) I imagine, 
other lawyers, that express a great deal of disagreement. Those 
are your words. Eventually this issue was resolved, and I am 
asking you about how that was resolved and who resolved it. Was 
that just resolved by Haynes?
    Admiral Church. It was resolved by I guess the chairman of 
the committee, Ms. Walker, basically said: We are not going to 
go revisit the decisions of Justice; we are going to move on. 
So they moved on, and they started looking at the techniques. 
As they looked at the 35 techniques, they assessed those in 
numerous categories dealing with humane treatment versus how 
this would be perceived internationally and many other 
categories.
    So the short answer, Senator, is they moved on; they 
accepted what the legal starting point was.
    Senator Kennedy. I know they have moved on, and I am 
familiar where the working group published and how they 
published virtually identical to the Biby memorandum. I am 
familiar. The point I am trying to find out is, who made the 
judgment? When you had talked about a great deal of 
disagreement with the OLC, who was the one that finally made 
the call on this? Who was the one that finally said when there 
was disagreement, in your own words, a great deal of 
disagreement? As we all know that from other memoranda, there 
was an enormous amount of disagreement.
    Someone finally made the call that what they were going to 
do is in the working group they would actually print exactly 
the words in the Biby memorandum. I am just asking you who made 
that call.
    Admiral Church. I believe the answer was the Office of the 
General Counsel.
    Senator Kennedy. That is Mr. Haynes.
    Admiral Church. It is, but I would like to add one thing. I 
looked at that very closely and that is why I came to the 
conclusion, because I questioned the same thing and the lawyers 
who made those issues--that the rulings of the DOJ were binding 
on the DOD, and that's what I called in my investigation. So it 
was not a bad call.
    Senator Kennedy. Well, I can understand and appreciate your 
position. Many of us understand that it was the CIA went to Mr. 
Gonzalez, with the understanding of Mr. Haynes, to request this 
memoranda from OLC, and that Mr. Gonzalez talked to OLC during 
the course of the preparation. This has been laid out in a 
different hearing. That finally they came back, the Biby 
amendment came back, and this was just fine with the CIA and 
with the DOD, and it was sent on over. The record shows that 
there were many in the JAG and otherwise that did not feel that 
it followed the Geneva Conventions, and you expressed a 
similar--an opinion about this.
    I want to know who in the DOD made the call on it. It is 
quite clear now that it is Mr. Haynes, who is the General 
Counsel on it. That is basically what I am trying to have.
    My time is up, unless there is something you want to add to 
that.
    Chairman Warner. Let the witness finish the answer.
    Senator Kennedy. Yes, please.
    Admiral Church. No, sir, I think I have answered the 
question. I did go down this road, as I mentioned, to try to 
see if that was in fact an appropriate determination and 
ultimately concluded--and I think it is in the report--that it 
was. The memo, of course, as we all know, has now been 
discredited.
    Senator Kennedy. Well, it was in effect for 2\1/2\ years.
    Admiral Church. You are correct, Senator, it was.
    Senator Kennedy. But it took some time before it was.
    Admiral Church. Yes, sir.
    Senator Kennedy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Warner. I thank the Senator.
    Senator Talent.
    Senator Talent. Thank you, Mr. Chairman.
    I want to thank you for your service, Admiral, on what has 
undoubtedly been a very difficult and trying endeavor. I just 
want to refer to page 4 of your report, when you--the narrative 
recites how in the fall of 2002 the belief on the part of our 
interrogators at Guantanamo was that the techniques they had 
were inadequate and they asked for permission or further 
guidance to use other techniques, and the SOUTHCOM commander 
approved 19 counter-resistance techniques that were divided 
into categories 1, 2, and 3.
    I was curious in reading it because originally the 
Secretary's decision only allowed one category 3 technique, 
which was authorization of mild, non-injurious physical 
contact, such as grabbing, poking in the chest with a finger, 
and light pushing. That was originally allowed and then 
subsequently disallowed. The category 2 techniques were 
subsequently disallowed.
    So I am wondering, what were some of the category 2 
techniques that were subsequently disallowed?
    Admiral Church. I would have to refer quickly to the memo.
    Senator Talent. Sure, would you do it quickly, or one of 
the other folks there? I am wondering because category 3 
techniques--and maybe I do not understand interrogation very 
well--the grabbing, poking in the chest with the finger, that 
is not normally what I would think of as torture. That used to 
happen in settlement negotiations when I was practicing law 
rather a lot. I have seen worse at conference committees.
    Admiral Church. Well, you are correct----
    Senator Talent. I presume category 2 techniques were milder 
than category 3 techniques?
    Admiral Church. That is correct, sir. They were tiered.
    Senator Talent. Yes. So give me an idea of what were the 
category 2 techniques that were originally approved?
    Admiral Church. I am sorry that these are all running 
together after 9 months. Stress positions----
    Senator Talent. A stress position, like standing at 
attention for a while?
    Admiral Church. Or in a kneeling position. There are 
various interpretations of that.
    Use of hooding. Removal of clothing was actually one. Use 
of detainees' individual phobias. There were 14 initially in 
the list.
    Senator Talent. Okay. The reason why the original request 
went up to SOUTHCOM and then to the Chairman, General Myers, 
and then to the Secretary of Defense, was because they thought 
they were not getting enough intelligence because these guys 
had been trained to resist effectively the techniques. It does 
not surprise me that they would have been able to resist these 
techniques.
    Category 2 was permitted, but then subsequently that was 
revoked, so category 2 was not permitted either, right?
    Admiral Church. That is correct, sir.
    Senator Talent. Mr. Chairman, Senator Lieberman and Senator 
Inhofe spoke for me. There was a vehicle improvised explosive 
device (IED) that went off in Hillah, Mr. Chairman, 2 weeks 
ago. 150 Iraqi recruits to the police were killed. Five hundred 
IED attacks a month, 750 Americans lost in Iraq because of 
that. This is a subject that I have investigated personally and 
I know you have too, Mr. Chairman, and we have on the 
committee, and everybody I have talked to who is in the 
business of fighting IEDs in our military, in our intelligence, 
in Israeli military and intelligence, in British intelligence, 
tells me that getting good intelligence is the key to stopping 
this IED threat.
    Speaking for myself, if our guys want to poke somebody in 
the chest to get the name of a bomb maker so they can save the 
lives of Americans, I am for it. Mr. Chairman, if the DOD wants 
to investigate me for that and have 15 investigations and call 
me inhumane, fine.
    I have been over there. I have talked to these guys. This 
is the single biggest threat we face in the war on terror, and 
we have to empower our people to deal with it. I know it is 
important that we stick to our own beliefs. That is important 
in fighting the war on terror. I am glad you have had these 
hearings, Mr. Chairman, because it shows that we care in this 
country.
    But at a certain point we have to introduce a note of 
proportion. I think that is what Senator Lieberman was saying. 
I do not speak for him. We have the best military in the world. 
I do not need an investigation to tell me that there was no 
comprehensive or systematic use of inhumane tactics by the 
American military, because those guys and gals just would not 
do it. Everything about the culture and the training in the 
military and at home works against that.
    That is why the terrorists are attacking us, because we are 
not the kind of society that would do that.
    Thanks for holding this hearing and giving me a chance to 
say that, Mr. Chairman.
    I appreciate your service, Admiral.
    Admiral Church. Senator, I need to clarify one answer I 
gave you for the record. You are correct in that the tiers one, 
two, and three techniques were all rescinded and that gave way 
to the 24 techniques in the more restrained of the 35 
recommended. They were no longer referred--there may have been 
one or two tier two techniques that became one of the 24. I 
would have to check. But clearly they moved to more restraint 
when they issued the second set.
    Senator Talent. Admiral, it is a great country we have, in 
part because we sweat so much over this stuff. I do not mean to 
be out of proportion myself. If you sweat the small stuff, then 
you can have confidence that you are not doing the big stuff. 
Maybe that is what Senator McCain was saying. So I admire us 
for doing that, but, man, I want people to know this is not the 
sort of thing we do, but what we need to do, we need to have 
effective interrogation techniques to get this intel. This is 
the whole game, beating these IEDs, and we will not do it just 
with force protection measures or electronic countermeasures. 
We are not going to win this from the sky. We are going to win 
it on the ground, with real intel, and that includes effective 
interrogation techniques.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator. Senator, next week 
this committee will have a briefing on the very serious 
situation of the IEDs, and part of that will be the discussion 
of the issues that you raise.
    Senator Talent. Mr. Chairman, you and I have talked 
personally about this and I want to compliment you on your 
leadership in this area. Unfortunately for the purpose of the 
public, most of what we do in that area, of course, we have to 
do in closed session.
    Chairman Warner. Yes.
    Senator Talent. So the public does not always see us and 
the work that you have led this committee on doing here.
    Chairman Warner. But the work is going on.
    Senator Talent. Absolutely, Mr. Chairman.
    Chairman Warner. I thank my colleague.
    Senator Reed.
    Senator Reed. Thank you, Mr. Chairman.
    Thank you, Admiral. Admiral, in the course of your 
investigation did you speak or interview Ambassador Bremer?
    Admiral Church. No, sir, I did not.
    Senator Reed. Why would you not speak with someone who was 
the senior DOD official who made significant decisions about 
using Abu Ghraib? He presumably was the interface between our 
military operations as an employee of the DOD and other 
agencies like the CIA?
    Admiral Church. It is a several-part answer. The first is 
it was the scope of my investigation. But I did pursue----
    Senator Reed. Let me follow up if I may. You were 
specifically told not to----
    Chairman Warner. Senator, let him just finish his reply and 
then I will give you extra time to develop this.
    Senator Reed. Thank you, Mr. Chairman.
    Chairman Warner. Finish answering the Senator's question.
    Admiral Church. Excuse me, Senator. I was not limited in 
who I asked questions of. I almost said ``interrogated.'' I 
generally stayed within the DOD because that was--Ambassador 
Bremer as I understood it worked for the Department of State 
(DOS).
    Senator Reed. Admiral, you are fundamentally wrong.
    Chairman Warner. Wrong.
    Admiral Church. Maybe. I am sorry.
    Chairman Warner. Let the record show that this committee 
was advised that he was taken on by the Secretary of Defense. 
It may have been some technical salary arrangement, but for all 
intents and purposes am I not correct?
    Senator Reed. You are absolutely correct, Mr. Chairman. He 
was an appointee of the Secretary of Defense, clearly within 
the chain of command of the civilian authorities and the 
Secretary of Defense.
    Admiral Church. The short answer to your question, sir: I 
apologize for being in error. There were one or two things I 
was trying to determine in terms of what Ambassador Bremer knew 
about potential abuses at Abu Ghraib. You are correct that I 
did not ask him the direct questions, but I talked to his 
military assistant. I talked to a number of those who were at 
the daily meetings, to try to determine if there was any 
indication, early indication, that he had of abuses that he 
passed to General Sanchez. That was the specific tasking I was 
looking at at the time. But I did not interview Ambassador 
Bremer, that is correct.
    Senator Reed. Admiral, that seems to be a stunning 
omission. Here is an individual who is the direct 
representative of the Secretary of Defense, who was I would 
assume nominally the commander of General Sanchez, who was 
virtually the viceroy of Iraq, and to simply stop with his 
military assistant to see if they might have gleaned something 
at a meeting or a conversation seems to me woefully inadequate, 
with all due respect.
    Admiral Church. I accept the criticism, sir. I was trying 
to--again, the charter was to look at how the interrogation 
techniques were developed and migrated. I did not need to 
interview Ambassador Bremer to determine that. As I expanded 
the scope of my investigation, questions arose which I then 
followed up on. But I did not specifically have a need in my 
mind to interview him and, frankly, I am not sure what 
questions I would ask him if I were interviewing him today.
    Senator Reed. Did you in any way authorize any military 
officer to violate the law or convention? Did you authorize, 
allow the CIA--presumably the station chief worked for him--to 
conduct operations that were contrary to American law? I think 
those are pretty basic questions.
    Admiral Church. Yes, sir.
    Senator Reed. Which goes to how these techniques migrate.
    Admiral Church. I think I have a pretty good track on the 
techniques, what was used and how they migrated, sir.
    Senator Reed. Thank you.
    Let me turn to Gitmo now. In the course of your 
investigation did you discover techniques that were either 
authorized or used--and I recognize some were merely 
authorized, but never used--that included environmental 
deprivations like hot rooms, cold rooms, withholding of food, 
hooding for periods of time, removal of clothing, or isolation? 
Were these techniques that, were either in an interrogation 
plan or at times used at Gitmo, in the course of the many 
months that the facility was operated?
    Admiral Church. As I described in the investigation, there 
were at least one or two instances where we noted those 
techniques were employed, where we had a clear need for 
actionable intelligence.
    Senator Reed. By that--and I do not want to put words in 
your mouth--these tools were available, all of these perhaps. 
Let me ask that question: Were these the range of tools 
available?
    [The information referred to follows:]

    ``Environmental manipulation,'' defined as ``[a]ltering the 
environment to create moderate discomfort (e.g., adjusting temperature 
or introducing an unpleasant smell)'' was approved on April 16, 2003. 
The memorandum specified that ``[c]onditions would not be such that 
they would injure the detainee'' and that the ``[d]etainee would be 
accompanied by interrogator at all times.''
    Withholding of food was never authorized. Between December 2, 2002, 
and January 15, 2003, detainee meals could be switched from hot rations 
to Meals, Ready-to-Eat (MREs)--the standard meals provided to U.S. 
troops in the field. This technique was rescinded on January 15, 2003. 
On April 16, 2003, the technique ``Dietary Manipulation'' was approved, 
defined as ``[c]hanging the diet of a detainee; no intended deprivation 
of food or water; no adverse medical or cultural effect . . . e.g., hot 
rations to MREs.''
    Hooding of detainees during transportation and questioning was 
authorized on December 2, 2002, and rescinded on January 15, 2003. It 
was specified that the hood ``should not restrict breathing in any way 
and the detainee should be under direct observation while hooded.''
    Removal of clothing was authorized on December 2, 2002, and 
rescinded on January 15, 2003.
    Use of an isolation facility for up to 30 days was approved on 
December 2, 2002, and rescinded on January 15, 2003. It was again 
approved on April 16, 2003, defined as ``[i]solating the detainee from 
other detainees while still complying with basic standards of 
treatment.'' Extensive safeguards were prescribed by the April 16 
memorandum (which, along with the December 2, 2002, memorandum was 
declassified and released to the public on June 22, 2004).

    Admiral Church. I would have to do a side by side, sir, but 
most of those were not generally available. They were not, as I 
remember, part of the 24 that had been approved by the 
Secretary of Defense. There were a couple of interrogations 
that were specific techniques were authorized beyond those 24.
    Senator Reed. What techniques were used in those 
interrogations?
    Admiral Church. There was sleep management, hooding, stress 
positions, as I remember, were a few.
    Senator Reed. Did you interview General Miller in your 
investigation?
    Admiral Church. Yes, sir.
    Senator Reed. On May 19, I asked General Miller the 
following question: ``It has been reported that you developed a 
72-point matrix for stress and duress, that lays out types of 
coercion at escalating levels. They include harsher heat or 
cold, withholding food, hooding for days at a time, naked 
isolation and cold, dark cells. Is that correct?''
    His answer was: ``Sir, that is categorically incorrect.''
    My response: ``That never happened?''
    ``That is categorically incorrect.''
    How do you rationalize your statement today that, at least 
in several instances, things like this happened and that 
categorical denial?
    Admiral Church. I think we are mixing two events. I am not 
familiar with any matrix.
    Senator Reed. Well, go ahead, sir.
    Admiral Church. I am not saying it does not exist, but we 
asked for every piece of paper that existed and made a couple 
of trips to Gitmo. So I am not aware of that.
    But there were two instances where we know that specific 
interrogation plans were used against those with actionable 
intelligence----
    Senator Reed. Well, if we substituted the word 
``interrogation plan'' for ``matrix,'' how do you reconcile the 
statements?
    Admiral Church. I would say I do not see the same thing. As 
a matrix, I understand that to be, Senator, some preplanned 
sliding or slope of techniques, that I have never seen.
    Senator Reed. So the real categorical denial was it was not 
a matrix? These techniques were available. As you have 
indicated, they were used. But it was not a matrix. So General 
Miller categorically denied that it was called a matrix; is 
that your interpretation?
    Admiral Church. I have never had that specific conversation 
with him.
    Senator Reed. It seems to me a terribly misleading response 
based upon your findings, to suggest that none of this ever 
happened. That none of this was ever in any type of document, 
in any type of plan. I will just stop there.
    Admiral Church. Senator, I would like to--I hope my 
investigation clearly lays out everything that happened, both 
at Gitmo and in the development of techniques. We know that 
there was the 2 December memo. We know that was rescinded. We 
know how we got to the 24 techniques approved by the Secretary 
of Defense, and we know that on a couple of occasions there 
were exceptions to that that the Secretary of Defense approved 
and he has openly discussed.
    Senator Reed. All of these happened before May 19, 2004?
    Admiral Church. Yes, sir.
    Senator Reed. You had a uniformed officer come up here and 
object to the term ``matrix'' by saying that it is 
categorically wrong; of course, we used these things 
occasionally?
    Admiral Church. I am sorry, Senator. I do not have the 
context of the question or answer.
    Senator Reed. Let me turn now to another issue. You worked 
closely with the Schlesinger committee. When Secretary 
Schlesinger was here with Secretary Brown, I asked the 
question: ``In October 2003 Secretary Rumsfeld, at the request 
of Mr. Tenet, ordered the military chain of command to deny at 
least the registration rights under the Geneva Conventions to 
an individual who I believe is an Iraqi citizen, an Al-
Ansalaam. Do you think that is consistent with the application 
of the Geneva Conventions to Iraq?''
    Secretary Brown: ``The answer to that is no, it is not 
inconsistent.''
    Dr. Schlesinger: ``If that happened, this is not 
consistent.''
    Now again, as a factual predicate, I got my information 
from the public media, so there may be facts in dispute. But 
have you looked into the situation and certainly the military 
officers that might have transmitted that command down the 
chain?
    Admiral Church. We document that in our investigation in 
terms of what happened. I think you are referring to what is 
generally referred to as ``Larry'' or ``XXX.'' If that is the 
same individual--I do not remember the name--then we know how 
that happened. The Secretary of Defense has said that should 
not have happened that way.
    Senator Reed. That is nice, it should not have happened. 
But there were military officers that at least arguably were 
following orders that contravene the Geneva Conventions.
    Admiral Church. The Secretary of Defense did say that, yes, 
sir, that is right, that he was not assigned an internment 
security number for many months, and that has been 
acknowledged.
    Senator Reed. As a violation of the Geneva Conventions?
    Admiral Church. Yes, sir.
    Senator Reed. What about those officers that carried out 
that order, Admiral? They were not privates and corporals and 
sergeants. They started with generals and colonels and all the 
way down.
    Admiral Church. The individual you are talking to, I think 
the quote that I have seen, kind of fell through the cracks. In 
the chaos of the ongoing war, they accepted the individual and 
did not assign him an internment security number and 
essentially forgot about him for many number of months until 
people started trying to find out where he was and then they 
found him.
    Senator Reed. Who is being held responsible for allowing 
that to happen?
    Admiral Church. I cannot answer your question. We know it 
happened and we know why it happened, and it was an unfortunate 
incident, but it happened.
    Chairman Warner. But your charter by the Secretary of 
Defense did not require you to reach a conclusion. That is my 
understanding.
    Admiral Church. This whole discussion is well beyond the 
charter of my investigation----
    Chairman Warner. This what?
    Admiral Church. This whole discussion is really beyond the 
charter. I tried to capture as much as I could. We know that 
the particular individual fell through the cracks, as I said 
earlier.
    Chairman Warner. Senator, resume, please.
    Senator Reed. Thank you, Mr. Chairman.
    Just a point. Someone who has been singled out for 
specialized treatment by the Secretary of Defense and the CIA 
Director, I find it hard to believe he just falls through the 
cracks. I find it hard to believe that this just was an 
administrative goof. I think, frankly, that part of your 
responsibilities were to look closely at the military chain of 
command certainly as to how they responded to these orders, 
some of which clearly are contrary to the convention.
    Admiral, this to me is a very disappointing report. The 
limitations both imposed on you from without and self-imposed 
apparently, particularly with respect to Mr. Bremer, lead to 
conclusions--and again, this report is not simply laying out 
the facts. You have drawn some conclusions, and it seems to me 
the conclusion is this is all just one big misunderstanding, 
this policy here, we did not fall not into the cracks, et 
cetera, which I do not think is an adequate response to the 
problems we have seen.
    I think the chairman asked a very fundamental question: 
What contributes to breakdown of good order and discipline? I 
would argue at least in part it is when people in authority, 
not just E-5s and E-6s, find ways to excuse violations of the 
law, and that is a very toxic ingredient.
    There was an ancient Roman that posed the question, who 
will guard the Guardians, the question we face today: Who will 
look after those that we have entrusted with our national 
security and defense and ensure that they follow laws? I think 
the jury is still out.
    Thank you, Admiral.
    Admiral Church. Senator Warner, can I make a comment?
    Chairman Warner. Yes, of course. You can have adequate time 
to respond to the Senator's last observation and any others you 
wish.
    Admiral Church. Thank you, sir. I would like to challenge 
the premise that this was all one big misunderstanding. We 
spent 9 months, as I said initially, over 800 interviews, 
reviewed thousands and thousands of pages of documents, 
leveraged all the other reports. I took very seriously my 
charge as an IG. I understand I was picked because I was an IG, 
because they wanted an independent look at exactly what 
happened, how it happened, why it happened. I think I have laid 
that out with some precision.
    I am just reacting to the characterization of the report, 
which I am proud of and the work that the folks did, as a 
misunderstanding. Clearly some things were done wrong. Clearly 
some things in hindsight, Senator, would be done differently, 
and I think I have captured those. I have laid out all the 
abuse cases, and had the chips fallen differently I would have 
made that call. They did not, and I was as factual--and I think 
that is why you ask an IG to do something like this, is because 
you get--every IG I have known takes that position of 
independence very seriously. I took it where it led, and the 
facts are the facts, and I understand that some people will not 
like the facts or in some cases the conclusions. But it is not 
all one big misunderstanding, sir.
    Senator Reed. Admiral, I respectfully disagree. I think 
failing to pursue all the facts, failing to at least talk to 
Ambassador Bremer and to follow up on certain things that seem 
to emerge from our discussion, suggests that this is not the 
thorough, complete, no-holds-barred report that many of us 
expected.
    Thank you.
    Chairman Warner. I would simply say, Senator, that I share 
your views with regard to the integral role that Ambassador 
Bremer had in the overall decisionmaking in this time period, 
that he had the designation really given by the President at 
the recommendation of the Secretary of Defense, is my 
understanding.
    However, I would like to--and I think, Admiral, look, I am 
a tough old bird. You had a difficult job. You did the best you 
could professionally, drawing on years of experience, and there 
is obviously going to be, I think, respectful differences of 
view. But I am glad you have stated for the record and 
reaffirmed the work that you and your many subordinates--how 
large was your team?
    Admiral Church. We started with 50 when we went into the 
theater and started doing our initial investigatory work and 
asking questions for the record, taking sworn statements. Very 
shortly after that we were down to a dozen or so, and I think 
there are two of us standing today, Senator.
    Chairman Warner. I want to call your attention to the 
headlines, and I select the Washington Post. It reads ``Abuse 
review exonerates policy.'' I think probably that you would 
reflect that headline as being reasonably accurate. In other 
words, you said the policy----
    Admiral Church. The policy did not----
    Chairman Warner. --was not the cause, the root cause of 
these egregious breaches and criminal acts.
    Admiral Church. Yes, sir.
    Chairman Warner. But the next line could in the minds of 
individuals cause confusion, and it reads ``Low level leaders 
and confusion blamed.'' That implies that the upper level 
received some type of exoneration, it could be inferred by 
some, and I want to clarify that. In your series of interviews, 
I presume you interviewed General Karpinski, General Fast, 
General Sanchez; would that be correct?
    Admiral Church. We did not specifically interview General 
Karpinski, but the other two we did.
    Chairman Warner. You did. Was there a reason for Karpinski, 
because of her legal situation at this time?
    Admiral Church. No, sir. Again, I leveraged a lot of the 
other reports and, because Generals Taguba, Fay, Kern, Jones 
had all looked so thoroughly at that, I did not reinvestigate 
Abu Ghraib, so I felt no need to interview her. But I did have 
some questions for General Sanchez and some others, but did not 
interview her.
    Chairman Warner. The Department of the Army, under the 
immediate direction of the Secretary and subject to review by 
the Secretary of Defense, are looking at the issues of 
accountability and participation by those three officers. It 
was never your charter, clearly, to establish accountability. 
So I wish to make clear for the record, you were not 
interviewing for purposes, I presume, of accountability, but as 
I in my initial question stated, what was the root cause of so 
many instances where regulations were completely ignored, good 
standing regulations and procedures, which allowed these acts 
to take place.
    In your interviews with, say, General Fast and General 
Sanchez, could you comment on what you learned from each of 
them?
    Admiral Church. Both General Fast and General Sanchez in my 
opinion were----
    Chairman Warner. Do not mix them. Take one at a time.
    Admiral Church. General Sanchez, I had specific questions 
primarily for General Sanchez on how he developed the 
techniques that he promulgated in September and then 
repromulgated in October. So that was the line of questioning. 
I needed to understand from him what he--what was given to him, 
did it have a legal review, why did you not just rely on Geneva 
or the doctrine, why did you promulgate separate interrogation 
techniques in September. So the line of questioning was how did 
we develop and promulgate and why did you do that.
    I was also trying to follow up on what he knew about the 
events at Abu Ghraib that maybe had not already been covered. I 
did not uncover anything new that really we did not already 
know. General Fast----
    Chairman Warner. Let me just summarize then. With General 
Sanchez, you determined from your interview that the 
information he provided you was consistent with the same 
information he had given others----
    Admiral Church. Yes, sir.
    Chairman Warner. --and which information had been published 
in any of the other nine series of reports; is that correct?
    Admiral Church. It was. I gleaned a couple other things 
regarding pressure on interrogators, but that is a correct 
statement, Senator, yes, sir.
    Chairman Warner. Did you confirm that General Sanchez was 
very shorthanded with staff? He was given an enormous 
responsibility, very shorthanded with staff, was managing a 
very hot war situation at the same time he was trying to do a 
lot of administrative things of this nature; is that correct?
    Admiral Church. Consistent with the other investigations, I 
confirmed that, yes, sir.
    Chairman Warner. Thank you.
    Now we turn to General Fast.
    Admiral Church. I questioned General Fast on----
    Chairman Warner. You might describe for the record what her 
area of responsibility was. I know, but I think it is 
important.
    Admiral Church. She was, I guess, the C-2 or the J-2, the 
head of the intelligence function at the CJTF-7.
    Chairman Warner. Which is General Sanchez's command?
    Admiral Church. She worked directly for General Sanchez. 
She was brought in specifically to put into place the 
intelligence architecture.
    My purpose in talking to her was what she knew about the 
interrogation policies and what she knew about any instances of 
abuse and when she knew them. I was able to document all that, 
and she really was not particularly engaged in the 
interrogation techniques. It turns out that was mostly the JAGs 
who put that together.
    But since you mentioned those two, I will say that, of all 
the people I interviewed in the course of this investigation, 
those two individuals were the most responsive and forthcoming 
of anybody, and both of them at the time were in the process of 
permanent change of station orders, and I would get 24-hour 
turnaround on the questions that I needed answered. So that was 
not your specific question, but I took the opportunity, 
Senator, to make that point.
    Chairman Warner. No, but I think that is an important 
observation.
    Now, there is considerable question in the minds of many as 
to the culpability or nonculpability of seniors in this chain 
of command. You go up from Colonel Pappas, I presume. Did you 
have an opportunity to talk with him?
    Admiral Church. No, sir. I relied on previous 
investigations.
    Chairman Warner. Let us talk about the chain of command, as 
you went up the chain of command whom you interviewed. 
Obviously, Karpinski, you have answered that. Fast, not direct 
chain of command, staff, but nevertheless reporting to Sanchez. 
You have covered Sanchez.
    Did you talk to General Abizaid?
    Admiral Church. I did, sir.
    Chairman Warner. What can you share with regard to his 
responses?
    Admiral Church. General Abizaid, actually I debriefed him 
on the way out. Primarily what I did with CENTCOM, I reviewed 
all the documentation that they had relevant to the development 
of interrogation policies. I did not interview him specifically 
because I had all my questions answered.
    Chairman Warner. Any other senior level individuals did you 
interview?
    Admiral Church. Yes, sir. Throughout the Pentagon, all the 
way up to Deputy Secretary of Defense and the Vice Chairman of 
the Chiefs of Staff.
    Chairman Warner. I think let us go very thoroughly now. You 
went through the chain of command right up to the DOD?
    Admiral Church. Yes, sir.
    Chairman Warner. You interviewed right up through Secretary 
Wolfowitz, is that correct?
    Admiral Church. That is correct, sir.
    Chairman Warner. And the General Counsel?
    Admiral Church. The General Counsel, I interviewed the 
General Counsel.
    Chairman Warner. Secretary Cambone?
    Admiral Church. I did, sir.
    Chairman Warner. So really you did cover with, in my 
judgment, thoroughness the entire chain as it related to your 
charter.
    Admiral Church. That was my attempt, yes, sir.
    Chairman Warner. I have already indicated that there are 
ongoing assessments of the culpability of several of these 
individuals whom we have mentioned and you are aware of that?
    Admiral Church. I am aware of that, yes, sir.
    Chairman Warner. So any inference that just low-level 
officers and leaders blamed could be misconstrued because these 
are still being examined.
    Admiral Church. I have seen the list and that is correct, 
sir.
    Chairman Warner. I just wanted to make that eminently 
clear. This committee will continue to discharge its 
responsibility in this matter as further reports are made 
available to us, and we will perhaps do some of our own 
independent work in this area. But your report constitutes a 
very valuable part of this committee's record.
    On the question of ghost detainees, you found that there 
were violations of the Geneva Conventions regarding failures to 
account for some detainees, called ``ghost detainees,'' and to 
make their presence at Abu Ghraib known to the ICRC. What were 
your findings with respect to this issue? Did you find the type 
of violation at other detention facilities?
    Admiral Church. Senator, we did not find that anywhere 
else. If I did not say it earlier I should have: The CIA 
cooperated with our investigation and in fact reviewed that 
section of the report. Between what we had and what they had, 
we determined that there were about 30 ``ghost detainees,'' 
although that is not a term of doctrine, that existed, I think 
the maximum was for a period of 45 days. That has long since 
been discontinued, but we did document that we think about 30 
ghost detainees did occur.
    Chairman Warner. Let us turn to the professional military 
intelligence in the Department of the Army. You conclude in 
your report that only 20 of the substantiated cases of abuse 
were interrogation-related and that only a few of these 
incidents actually involve military investigators. Were the 
methods and techniques used by these interrogators derived from 
any policy issued by the local command, and in the absence of 
that policy or the circumstances of changing policy what guided 
the actions of these interrogators, and did you feel that the 
professional military interrogators were well trained 
individuals?
    Admiral Church. You are correct, sir, using the expansive 
definition of ``interrogation-related,'' we found about 20 
instances of the 70 abuse cases. Again, the way we classified 
that, that was even MPs or any member at the point of capture.
    None of these directly related to any of the authorized 
interrogations. Although interrogators were in short supply, as 
we have known and documented, I found the professional training 
to be quite good, those that we had.
    Chairman Warner. Therefore you feel that the intelligence 
segment of the Department of the Army had in the field well-
trained individuals?
    Admiral Church. Yes, sir. Not in sufficient numbers, but 
well trained.
    Chairman Warner. Thank you very much.
    Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    There has been reference to a very critical memo here that 
you were able to look at but not take a copy of. That is that 
March 14 memo prepared by Deputy Assistant General Attorney Yu 
for Mr. Haynes.
    Mr. Chairman, we have a right to that memo. I think the 
Admiral had a right to have a copy of that memo, but that is up 
to him to decide. This committee has a right to that memo. I 
would ask that we on an urgent basis get that memo. It has been 
referred to numerous times. It was a key part of this whole 
interrogation decision. It was a memo, a controlling memo, 
despite the concerns of the lawyers inside of the military. I 
would ask you, Mr. Chairman, that we make a formal request for 
a copy of that memo.
    Obviously, if they want to give it to us on a classified 
basis that's one thing. But not to have a copy of that memo is 
totally unacceptable. I am afraid it is too typical of a very 
great reluctance on the Department's part to be fully 
supportive with documentation which has been requested on other 
occasions by us. But anyway, my specific request, Mr. Chairman, 
is for that March 14, 2003, memo.
    Chairman Warner. As you know from our long working 
relationship of 27 years on this committee, I feel that 
Congress is a coequal branch and as such, unless there is 
executive privilege attached to certain documents, Congress 
should have them, and I will look into this with you.
    Senator Levin. I thank you.
    Chairman Warner. Thank you.
    Senator Levin. I thank you for that.
    Now, Admiral, you indicated as I understand it, that you 
were not tasked to assess personal responsibility at senior 
levels, is that correct?
    Admiral Church. That is correct, sir.
    Senator Levin. In your report you say that issues of senior 
official accountability were addressed by the Schlesinger 
Panel. But the Schlesinger Panel did not address the issue. As 
a matter of fact, they were specifically tasked not to. In 
their tasking from the Secretary on May 12, 2004, they were 
told that issues of personal accountability were to be resolved 
through established military justice and administrative 
procedures. So they were not tasked. In fact, they were quite 
clearly told to stay away from it. Then this one qualifier was 
added: ``although any information you may develop will be 
welcome.''
    So what did you mean when you said the Schlesinger Panel 
was tasked to assess personal accountability at senior levels, 
that was not your job?
    Admiral Church. Thank you for the opportunity to explain. 
The Schlesinger Panel charter was pretty open-ended. The 
Secretary of Defense verbally told them: ``You look at anything 
you need to look at.'' You are correct, it may not be in 
writing.
    We worked very closely with that panel. As I mentioned 
earlier, I think, we provided all the data that you see in 
their report. I reviewed their drafts. We exchanged 
information. Early on in working together with that panel, I 
made the observation that I was not tasked to look into 
responsibility, individual or high-level responsibility. It 
evolved and an agreement was made that they would do that, and 
that kept me within my charter to look at interrogation and 
development of interrogation techniques.
    There was nothing formal about that, but there was an 
understanding that they would do that, and I as I looked at 
their report, I thought they had. Now, there is a difference 
between responsibility and accountability, as you well know, 
Senator. I thought they assessed responsibility fairly clearly.
    Senator Levin. This is about the only thing they said that 
we can find, that the abuses were not just a failure of some 
individuals to follow known standards and they are more than 
the failure of a few leaders to enforce proper discipline. 
There is both institutional and personal responsibility at 
higher levels.
    Did they identify anybody at higher levels who bears 
personal responsibility?
    Admiral Church. They did, sir. There are about five 
instances in the report that I pulled out. One comment, 
Lieutenant General Sanchez and his deputy failed to ensure 
proper staff oversight of detention and interrogation 
operations. The quote that you just had, and interrogation 
policies with respect to Iraq, where the majority of the abuses 
occurred, were inadequate or deficient in some respects at 
three levels: DOD, CENTCOM-JTF-7, and the prison itself.
    Chairman Warner. Could you give us the citation of the 
material that you are reading?
    Admiral Church. Yes, sir.
    Senator Levin. I quoted that before, so we do have that 
citation.
    Did they identify any personal responsibility? Did they say 
who it was up in the chain of command that was the cause of the 
confusion, what was the reason why there were inconsistent 
rules relative to interrogation, who it was who blocked the 
lawyers who had objections to the rules that were proposed by 
the Office of Criminal Justice (OCJ)? Did they do any 
assessment of responsibility, name any names, up that chain of 
command above Sanchez?
    Admiral Church. Beyond what I told you, no, sir.
    Senator Levin. Okay. There was reference here to the 
definition of ``humane treatment'' that was supposed to be 
followed at Gitmo. Did you agree with General Miller's 
definition of ``humane treatment?''
    Admiral Church. I do not remember specifically what that 
was, so I will not give you a specific answer, sir. He may have 
said something I am not aware of.
    Senator Levin. So you do not remember having a reaction to 
his definition of ``humane treatment,'' as to whether it was 
too narrow?
    Admiral Church. No, sir, I do not. Sorry.
    Senator Levin. One of the tactics which was referred to in 
the FBI e-mail, was--I am quoting here--that ``DOD 
interrogators impersonated special agents of the FBI when 
talking to detainees, that this tactic produced no 
intelligence,'' they said, ``of a threat, that it may have 
destroyed any chances of prosecuting the detainees.'' But my 
point here is the tactic itself, DOD personnel and 
interrogators impersonating FBI agents.
    Did you check into that and see what the basis of that 
tactic was, the origin of the tactic?
    Admiral Church. There is a tactic, impersonating personnel 
from a third country, for example. That is part of the basic 
concept of interrogation, which is deceit to try to get the 
information. You could almost make the case that falls within 
doctrine.
    Senator Levin. The FBI objected to that, is that correct?
    Admiral Church. Yes, sir, as I remember.
    Senator Levin. Did you talk to the FBI about why they 
objected to it?
    Admiral Church. We had the FBI memo. As I may have, I hope 
I mentioned, we looked very clearly at that. We know the couple 
of instances they are talking about. In the early development 
of the techniques, a lot of things were being considered. That 
eventually led to the October memo that SOUTHCOM forwarded up. 
But we are aware of that, sir.
    Senator Levin. Did you talk to the FBI people as to why 
they objected, though?
    Admiral Church. Not specifically, no, sir.
    Senator Levin. It is hard for me to believe that it is, it 
is DOD doctrine that they impersonate FBI agents. Are you 
saying it is doctrine that they do that?
    Admiral Church. No, sir, I am not saying that. I am saying 
that doctrine in itself and interrogation in itself are 
deceptive in that you are trying to get information from a 
witness who does not want to give you that information. It 
calls to point the basic elasticity of doctrine. One of the 
doctrine techniques is ``fear-up harsh'' and, as many have said 
before me, much of the expanded interrogation techniques could 
easily have fit within that definition of doctrine, which is 
why I make the case in the report that we need to clearly get 
new doctrine out there that all of our interrogators 
understand. That is the imperative piece, and doctrine that 
will allow us to get the actionable intelligence that we need.
    Senator Levin. Staying within the rules of law?
    Admiral Church. Absolutely, sir.
    Senator Levin. It is that elasticity which I am afraid was 
stretched beyond the rule of law here and which has gotten us 
in a lot of trouble as a Nation and our troops in the future in 
some real threatening situations. That is really what the issue 
is here.
    The reference in the FBI document to the torture techniques 
that they witnessed, I specifically want to ask you, did you 
talk to the writers of that memo about what they witnessed and 
described as torture techniques by DOD personnel?
    Admiral Church. No, sir.
    Senator Levin. Why not?
    Admiral Church. Well, I got the information--we actually 
even had a member of our team who was part of the Criminal 
Investigative Task Force working with the FBI down there. So we 
knew about this. We had the information. When we saw the memo, 
we quickly reacted to see if in fact we had covered everything 
that was in that memo. There was, as I mentioned, I hope, one 
incident that we did not think had been followed up.
    I would like to add, as you already know, that SOUTHCOM is 
following up on the allegations and the current Naval IG has 
already reviewed I believe 16,000 documents to try to trace 
this back to make sure we do not have any gaps in that 
information, Senator.
    Senator Levin. There is a named person whose name is 
redacted for us, and it seems to me a thorough investigation 
would talk to the writer of those memos. That is just part of 
thoroughness to me. You can say you think you covered it in 
other ways. Maybe you did, but you do not know until you talk 
to the people who wrote the memos, who saw what they described 
as torture techniques.
    So I think it is just satisfactory to simply leave it at 
that and I cannot.
    Thank you, Admiral.
    Chairman Warner. Thank you, Senator Levin.
    We have to immediately get to the vote. They are holding it 
for us. I want the record to reflect that the charter given by 
the Secretary of Defense to the Schlesinger commission--and by 
the way, I in my modest career have never met a finer man than 
Jim Schlesinger. I was privileged to serve under him as 
Secretary of the Navy during the Vietnam War era. I have a 
similar respect for his partner, the other Secretary of 
Defense, and we will be in consultation with them.
    But I read from the charter given by Rumsfeld: ``Issues of 
personal accountability will be resolved through established 
military justice and administrative procedures, although any 
information you''--that is Schlesinger and Harold Brown and 
others--``may develop will be welcome.''
    I find on page 47 of the Schlesinger report some fairly 
specific findings pursuant to that charter. For example: ``The 
CJTF-7 deputy commander failed to initiate action to request 
additional military police for detention operations after it 
became clear there were insufficient assets in Iraq.'' There 
are several others cited here. I will put them in the record in 
their entirety.
    [The information referred to follows:]

    The Panel finds the following:

         The CJTF-7 Deputy Commander failed to initiate action 
        to request additional military police for detention operations 
        after it became clear that there were insufficient assets in 
        Iraq.
         The CJTF-7 C-2 Director for Intelligence failed to 
        advise the commander properly on directives and policies needed 
        for the operation of the JIDC, for interrogation techniques and 
        for appropriately monitoring the activities of Other Government 
        Agencies (OGAs) within the Joint Area of Operations.
         The CJTF-7 Staff Judge Advocate failed to initiate an 
        appropriate response to the November 2003 ICRC report on the 
        conditions at Abu Ghraib.

          Failure of the Combatant Command to Adjust the Plan

    Once it became clear in July 2003 there was a major insurgency 
growing in Iraq and the relatively benign environment projected for 
Iraq was not materializing, senior leaders should have adjusted the 
plan from what had been assumed to be a stability operation and a 
benign handoff of detention operations to the Iraqis. If commanders 
and. staffs at the operational level had been more adaptive in the face 
of changing conditions, a different approach to detention operations 
could have been developed by October 2003, as difficulties with the 
basic plan were readily apparent by that time. Responsible leaders who 
could have set in motion the development of a more effective 
alternative course of action extend up the command chain (and staff), 
to include the Director for Operations, Combined Joint Task Force 7 
(CJTF-7); Deputy Commanding General, CJTF-7; Commander CJTF-7; Deputy 
Commander for Support, CFLCC; Commander, CFLCC; Director for Operations 
Central Command (CENTCOM); Commander, CENTCOM; Director for Operations, 
Joint Staff; the Chairman of the Joint Chiefs of Staff; and the Office 
of the Secretary of Defense. In most cases these were errors of 
omission, but they were errors that should not go unnoted.

    Chairman Warner. This committee will continue to work with 
the Secretary of Defense, who has been extremely cooperative 
throughout our work here in the committee. He was the first 
witness. He stood up and said in his capacity as the ultimate 
authority he takes his share of the accountability. I commended 
him for that and still do. I know of a number of ongoing things 
initiated by the Secretary and others under the administrative 
and judicial procedures.
    So there is much work yet to be done, but I think it is to 
the credit of this great Nation that there have been 10 reports 
on this very distressing chapter in our military history, 
otherwise a military history that is envied by the whole world, 
and as I mentioned in my opening statement, over a million men 
and women in uniform have rotated in and out of the area of 
responsibility (AOR) of Iraq and then more in Afghanistan, and 
when you look at the small fraction of those who have been 
adjudged guilty and are still in the process it shows that 
these fine persons in uniform and others went there and 
discharged those difficult and dangerous missions with great 
integrity and in accordance with the rule of law as the best 
they could understand it.
    I thank you, Admiral. We will resume this hearing in closed 
session in 222 Russell as soon as three consecutive votes are 
finished.
    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John McCain

                        INTERROGATION TECHNIQUES

    1. Senator McCain. Admiral Church, in December 2003, Senator 
Lindsey Graham, Senator Maria Cantwell, and I visited the detainee 
facility in Guantanamo (Gitmo). Subsequent revelations by the Federal 
Bureau of Investigation (FBI) and others indicate severe issues with 
detainees such as attempted mass suicides (as many as 25 detainees on 
one day) occurred just 3 months prior to our visit, yet no mention of 
the problem was made during our visit. Furthermore, recent revelations 
of interrogation techniques where female interrogators smeared 
menstrual blood, rubbed their bodies against detainees, wore skimpy 
clothes, made sexually explicit remarks, touched detainees 
provocatively, etc. were never described during our visit. The FBI 
thought that these techniques diminished Muslim religious purity and 
were improper. What do your findings show to demonstrate the reason why 
these sexually suggestive tactics were by Department of Defense (DOD) 
interrogators?
    Admiral Church. Our investigation found two cases in which separate 
female Army interrogators touched and spoke to detainees in a sexually 
suggestive manner during interrogations at Gitmo. In one of the cases, 
the interrogator smeared red ink (not blood) on a detainee, telling him 
it was menstrual blood. In both cases, the soldiers evidently devised 
the sexually suggestive tactics on their own initiative to gain 
intelligence. Both interrogators were reprimanded for their actions 
immediately after they took place. There was no policy, written or 
otherwise, that approved the use of sexually suggestive interrogation 
tactics.

    2. Senator McCain. Admiral Church, what are your thoughts on the 
problem and what purpose do you feel was accomplished by not informing 
me of the problem?
    Admiral Church. Our investigation did review detainee medical and 
mental health care issues in general, and specifically at Gitmo. We 
documented that there had been a spike in self-injurious behavior 
involving 23 detainees between August 18 and 26, 2003. (Two of the 23 
incidents were judged to be bona fide suicide attempts.) As detailed on 
page 349 of my report, however, the medical staff assessed that some 
detainees were engaging in such behavior to gain prolonged observation 
at the more comfortable Detainee Hospital, and therefore implemented 
mental health protocol changes in early 2004 that emphasized 
evaluation-in-place for lower-grade self-injurious behavior. This 
change dramatically reduced such episodes. No detainee has committed 
suicide at Gitmo, and the most recent attempt that I am aware of took 
place in January 2004.
    Nevertheless, mental health of detainees has been a concern of both 
the Commander, Joint Task Force (CJTF) Gitmo and the International 
Committee of the Red Cross (ICRC). For example, during our first visit 
to Gitmo in May 2004, 66 of the over 550 detainees (roughly 12 percent) 
were receiving mental health services, with 7 housed in the psychiatry 
cellblock for continuous observation.
    I do not know why you were not informed of the spike in self-
injurious behavior or the reprimands for sexually suggestive 
interrogation tactics during your December 2003 visit. In my view, you 
should have been informed.
                                 ______
                                 
             Questions Submitted by Senator James M. Inhofe

             REVIEW OF MULTIPLE REPORTS AND INVESTIGATIONS

    3. Senator Inhofe. Admiral Church, thank you and your staff for the 
extensive work you did in compiling into one report all of the major 
investigations that have inquired into detention operations and 
detainee interrogation techniques. Your appearance here today will 
serve to shed light onto an issue that has been misunderstood by many.
    The U.S. Government currently maintains custody of approximately 
550 enemy combatants in the global war on terrorism at Gitmo. Many of 
these enemy combatants are highly trained, dangerous members of al 
Qaeda, its related terrorist networks, and the former Taliban regime. 
Our intelligence and law enforcement communities develop leads, 
comprehensive assessments, and intelligence products based on 
information the detainees provide. The information includes their 
leadership structures, recruiting practices, funding mechanisms, 
relationships, and the cooperation between terrorist groups, as well as 
training programs, and plans for attacking the United States and other 
countries. Further, as Coalition Forces in Afghanistan continue to 
capture al Qaeda, Taliban, and anti-coalition militia fighters, Gitmo 
detainees remain a valuable resource to identify forces that operate 
against the freedom.
    It is my understanding that detainees held in Iraq, at Abu Ghraib, 
were either actively involved in operational planning for attacks 
against our Coalition Forces there or had already participated in 
attacks against our forces. They were working on behalf of former 
Baathist now acting as insurgents or on behalf of terrorist leaders 
from outside of Iraq such as Zawqari.
    Based on the extensive knowledge that these detainees possess, it 
is critical that we gain as much insight as possible into information 
they have that will assist us in derailing the actions of those who 
stand against freedom. Our military Services and our government have 
policies and techniques that we use to gather this information. We 
should ensure that these policies and techniques are employed. As we 
discover that additional training, clarification, and adjustments are 
needed in policies and techniques to give better guidance to our young 
men and women, we should make these changes. As individuals fail to 
follow these policies and techniques, we should investigate to ensure 
we understand what has occurred and we must allow the military justice 
system to deal effectively with them, as they have to this point and I 
feel confident will continue to do so.
    With your report, we have had about 10 major investigations into 
this matter. Some in the media have denigrated the work of the leaders 
in charge of the other reports. They have accused them of whitewashing 
and stonewalling the truth.
    Let me review some of the leaders who have headed up these 
investigations:

        1. General Don Ryder, U.S. Army
        2. General Geoff Miller, U.S. Army
        3. General Antonio Taguba, U.S. Army
        4. General Paul Mikolashek, Army Inspector General (IG)
        5. Generals Paul Kern, George Fay, and Anthony R. Jones
        6. General Charles Jacoby
        7. Secretary James Schlesinger, Secretary Harold Brown, the 
        late Rep. Tillie Fowler, and General Charles Horner
        8. General Richard P. Formica

    Now we have your report, Admiral Church. These officials, military 
and civilian, represent over 300 years of service to our Nation. You 
and your staff conducted over 800 interviews, reviewed over 3,000 
documents, and talked to everyone you believed had information relevant 
to your investigation. Some commentators have dismissed several of the 
previous reports as ``whitewash'' or as cover-ups. Did you come across 
anything that would cause you to believe or suspect that any of these 
officials who conducted these investigations were pursuing an agenda 
other than seeking the truth?
    Admiral Church. Absolutely not.

                 CONFUSION IN INTERROGATION TECHNIQUES

    4. Senator Inhofe. Admiral Church, in reading your report, it is 
stated that there was confusion in the development of the interrogation 
practices in Iraq and Afghanistan. Regardless of whether you are 
talking about properly approved techniques or improperly approved 
techniques, did you ever find anything that sanctioned the practices 
that showed up in the infamous Abu Ghraib photos?
    Admiral Church. No, I did not.

    5. Senator Inhofe. Admiral Church, is it fair to say that whatever 
confusion there might have been, no one could have reasonably believed 
that what we saw in those infamous photos was in accordance with 
approved practices?
    Admiral Church. Yes, it is.

     INTERROGATION TECHNIQUE RECOMMENDATIONS TO SECRETARY RUMSFELD

    6. Senator Inhofe. Admiral Church, in the winter and spring of 
2003, there was a working group, led by U.S. Air Force General Counsel 
Mary Walker, that reviewed the law on interrogation practices and made 
a recommendation to the Secretary of Defense (SECDEF) on what 
techniques should be allowed at Gitmo. How many techniques did the 
working group recommend and how many did the SECDEF approve?
    Admiral Church. The working group recommended 35 techniques, which 
excluded several techniques (such as ``water boarding'') that it had 
considered early on but later determined to be unacceptable under U.S. 
laws or policies. SECDEF approved 24 techniques, most of which were 
taken directly from or closely resembled those in Field Manual (FM) 34-
52, the Army interrogation doctrine manual.

    7. Senator Inhofe. Admiral Church, isn't it correct that the SECDEF 
approved for use fewer than the total number of interrogation 
techniques approved by the working group? In other words, his directive 
was narrower than what the group concluded the law allowed?
    Admiral Church. Yes, that is correct. SECDEF approved 24 of the 35 
techniques recommended by the working group. Most of those 24 
techniques were taken directly from or closely resembled those in FM 
34-52, the Army interrogation doctrine manual.
                                 ______
                                 
            Questions Submitted by Senator Edward M. Kennedy

                       CLASSIFICATION OF REPORTS

    8. Senator Kennedy. Admiral Church, obviously, we must all be 
sensitive of the need to keep matters of national security classified. 
However, I am concerned that you did not provide an unclassified 
version of your report beyond the executive summary. The executive 
summary does not explain why the abuses occurred. Is there any reason 
why you did not provide an unclassified version? I believe it is very 
important to get this issue into the public arena.
    Admiral Church. I did not generate an unclassified version of the 
full report because much of the subject matter remains classified. The 
Office of the Secretary of Defense (OSD) is now working to declassify 
and/or redact the report as required to make the full version available 
to the public. In addition, the unclassified Executive Summary was 
intended to make my central findings immediately available to the 
public. The section of the Executive Summary titled ``Underlying 
Reasons for Abuse'' (pages 15-16) provides my best military judgment as 
to the factors that may explain why abuse occurred. I do not present 
additional factors in the classified report.

    9. Senator Kennedy. Admiral Church, who classified the report and 
why? Will you provide an unclassified version of the full report to the 
public?
    Admiral Church. The report is not classified in a ``blanket'' 
sense; rather, individual sections and paragraphs are classified as 
appropriate based directly upon the classification of the sources 
cited. The OSD is now working to declassify and/or redact the report as 
required to make the full version available to the public. In addition, 
the unclassified Executive Summary was intended to make my central 
findings immediately available to the public.

                            HUMANE TREATMENT

    10. Senator Kennedy. Admiral Church, you conclude that the 
Pentagon's radical revision of its rules on interrogation had no effect 
on our forces in the field, because President Bush had instructed the 
military to treat detainees ``humanely.'' But the President's directive 
did not apply to the CIA at all, and it contained a ``military 
necessity'' exception that could be used to justify almost any abuse. 
But the term ``humane'' is far too general and vague to guide soldiers 
in the field. To do their duty, soldiers need specific guidance on how 
to treat detainees and how to conduct interrogations. That's why in the 
past, soldiers have had to follow the Army FM on Interrogations and 
Army Regulations on Detention.
    It's now clear that after September 11, DOD General Counsel William 
Haynes and Justice Department (DOJ) lawyers threw the military's 
existing rules and regulations out the window. In November 2002, DOD 
General Counsel William Haynes advised Secretary Rumsfeld that it was 
both legal and humane to use such tactics as forced nudity, 
waterboarding to simulate drowning, threats to kill detainees' family 
members, and aggressive military dogs. The next year, the Haynes 
Working Group twisted the definition of torture beyond recognition, and 
advised military personnel that they weren't required to comply with 
the Federal prohibition on torture.
    Obviously the vague and undefined Presidential directive to act 
``humanely'' did not prevent such specific and extreme changes in 
military rule. What were soldiers told when they asked if a particular 
tactic was inhumane?
    Admiral Church. Department of Defense (DOD) personnel are required 
to comply with U.S. law (including the Uniform Code of Military Justice 
(UCMJ)), interrogation doctrine (contained in Army Field Manual (FM) 
34-52), and command approved interrogation guidance as appropriate, and 
existing regulations on detention operations. The ``military 
necessity'' principle does not permit servicemembers to violate the law 
or DOD policy. DOD does not permit, tolerate, or condone torture by its 
personnel under any circumstances. DOD policy is to treat all detainees 
and conduct interrogations, wherever they may occur, in a manner 
consistent with this commitment.
    We found no evidence whatsoever that the DOD General Counsel ever 
advised the Secretary of Defense that ``waterboarding,'' threats to 
kill detainees' family members, or the use of ``aggressive'' dogs were 
legal or humane interrogation techniques. In particular, based on the 
General Counsel's recommendation, Secretary Rumsfeld specifically 
rejected ``waterboarding'' and threats of pain or death to detainees or 
their families (both of which had been proposed as Category III 
techniques by the command at Guantanamo). In the November 27, 2002 
Action Memo (declassified and released to the public on June 22, 2004) 
in which he recommended the techniques that the Secretary approved on 
December 2, 2002, the General Counsel stated that ``[w]hile all 
Category III techniques may be legally available, we believe that, as a 
matter of policy, blanket approval of Category III techniques is not 
warranted at this time. Our Armed Forces are trained to a standard of 
interrogation that reflects a tradition of restraint.''
    We found no evidence that military personnel were ever advised (nor 
did they believe) that they were not required to comply with the 
prohibition against torture of the UCMJ.

    11. Senator Kennedy. Admiral Church, the only official definition 
of ``humane'' that I've heard from this administration is the one given 
to us by Alberto Gonzales in January. He said that he defined ``humane 
treatment'' as ``a basic level of decent treatment that includes such 
things as food, shelter, clothing, and medical care.'' Isn't that 
guidance inadequate for soldiers and interrogators in the field? It 
doesn't say anything about physical abuse, or how detainees should be 
treated during interrogation.
    Admiral Church. No, the current guidance for interrogations is 
adequate with regard to humane treatment. Although there is no single 
agreed upon definition of ``humane treatment'' in relevant legal 
authorities such as the Geneva Conventions and the Convention Against 
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(CAT), it is clear to all that applicable authorities do not permit 
physical abuse. For example, the Uniformed Code of Military Justice 
prohibits maltreatment and abuse of detainees.
    Further, Army Regulation 190-8, Enemy Prisoners of War, Retained 
Personnel, Civilian Internees, and, Other Detainees (which applies to 
all Military Departments), paragraph 1-5, provides for the humane 
treatment of detainees. Also, Field Manual 27-10, the Law of Land 
Warfare, paragraph 89, provides that prisoners of war will be treated 
humanely. Field Manual 34-52, Intelligence Interrogation, Chapter 1, 
also prohibits the inhumane treatment of detainees.

    12. Senator Kennedy. Admiral Church, do you think that a definition 
of ``humane treatment'' that just talks about detainees' living 
conditions is enough?
    Admiral Church. No, and this is not the situation in the Department 
of Defense. The President articulated in the Military Order on 
Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism, November 13, 2001, that detainees will be treated 
humanely, including the following:

         To be treated without any adverse distinction based on 
        race, color, religion, gender, birth, wealth, sex, or any 
        similar criteria;
         Sufficient food, drinking water, shelter, clothing, 
        and medical treatment; and
         Free exercise of religion, consistent with the 
        requirements of detention.

    In addition, several DOD regulations and policies, pursuant to 
applicable law (described on pages 29-34 of my report), prescribed 
additional detainee protections over and above their living conditions.

    13. Senator Kennedy. Admiral Church, who should be accountable for 
what happened?
    Admiral Church. Senior-level responsibility was addressed by Dr. 
Schlesinger's Independent Panel to Review DOD Detention Operations. In 
addition, the Army IG is conducting a number of reviews to assess the 
individual responsibility of senior Army officers. The purpose of my 
investigation was to provide data, which could then be used by the 
appropriate authorities in assessing accountability. I firmly believe 
that accountability must be determined in accordance with processes 
established by laws and regulations.
                                 ______
                                 
             Questions Submitted by Senator Daniel K. Akaka

                        INVESTIGATION TECHNIQUES

    14. Senator Akaka. Admiral Church, your original tasking from the 
SECDEF was to investigate detention operations at Gitmo. In that 
investigation you indicated that there was no evidence of abuse. It has 
been reported that in that investigation no detainees were interviewed. 
My question to you is, if you did not interview any detainees at Gitmo, 
how can you accurately assess the allegations of abuse?
    Admiral Church. My original review of detainee operations at Gitmo, 
completed in May 2004, found no evidence of noncompliance with DOD 
orders and no evidence or suspicion of serious or systemic problems. It 
did, however, note several infractions for which interrogators or 
military police had been disciplined. My team also reviewed thousands 
of pages of documents from the ICRC, which I found to be informative 
and an effective conduit for detainees' concerns. I found that military 
commanders and criminal investigative authorities were appropriately 
investigating allegations of abuse relayed by the ICRC.

    15. Senator Akaka. Admiral Church, since Secretary Rumsfeld 
expanded the scope of your investigation to include operations in Iraq 
and Afghanistan, did your panel then follow the same procedure?
    Admiral Church. Yes, we did.

                        INTERROGATION TECHNIQUES

    16. Senator Akaka. Admiral Church, you state in your report that 
there was no official policy sanctioning detainee abuse in Iraq, 
Afghanistan, or Gitmo. While there may not have been an official 
policy, in December 2002 and again in April 2003 new interrogation 
techniques were approved by the SECDEF, and were used at Gitmo. It is 
my understanding that Major General Geoffrey Miller, former Commander 
at Gitmo, was then assigned to Iraq and used techniques similar or 
identical to those used at Gitmo. Would it be fair to say that 
assigning the former Commander of Gitmo to Abu Ghraib sends a message 
that the techniques used at Gitmo are approved methods of 
interrogation?
    Admiral Church. No, it would not. As described in my report, the 
techniques approved for use at Gitmo in April 2003 were indeed 
incorporated in Lieutenant General Sanchez's September 2003 
interrogation policy for Iraq (which preceded Major General Miller's 
July 2004 assignment as Deputy Commanding General for Detainee 
Operations). However, General Miller had given the Gitmo techniques to 
General Sanchez during his September 2003 visit to Iraq with the caveat 
that the Geneva Conventions applied in Iraq, and that the techniques 
would have to be assessed in that light. General Sanchez's legal staff 
vetted the September 2003 interrogation policy for Geneva compliance 
before its approval. We found no evidence that interrogators in Iraq 
employed techniques other than those that they believed to fall within 
either existing doctrine or interrogation policies explicitly approved 
for use in Iraq. Interrogators also uniformly reported that they 
understood that the Geneva Conventions applied in Iraq.

    17. Senator Akaka. Admiral Church, earlier reports authorized by 
the DOD provided very harsh assessments of private civilian contractors 
at Abu Ghraib. Specifically, it was suggested that at least one 
civilian contractor be fired for lying to investigators and for 
allowing military policemen not trained in interrogation techniques to 
facilitate interrogations that clearly equated to physical abuse. Would 
you please tell the committee how extensive your investigation was with 
regard to civilian contractors and what you found about their detainee 
interrogation practices?
    Admiral Church. We interviewed over 20 contract interrogators and 
intelligence analysts, and examined laws and DOD policies applicable to 
contract personnel. We found that, with limited exceptions (as in the 
well-known cases of contractor-perpetrated abuse at Abu Ghraib), 
contractor compliance with law and DOD interrogation policies was 
satisfactory. We did not reinvestigate previous investigations' 
conclusions regarding specific cases of abuse perpetrated by 
contractors.

    18. Senator Akaka. Admiral Church, we continue to have 
investigations into detention procedures and detainee interrogation 
techniques, that look at the same areas, ask the same questions, and 
provide the same results. While there may be more formal guidance from 
the DOD now on detention operations, this does not address issues such 
as the CIA's unacknowledged practice of transferring suspected 
terrorists to foreign countries for interrogation, or the DOD's 
transfer of some prisoners to countries such as Pakistan, Morocco, 
Egypt, Jordan, Syria, Saudi Arabia, and Kuwait. Will we ever get a 
complete analysis and understanding of detention operations in Iraq, 
Afghanistan, and Gitmo without conducting an investigation that has 
full access to all the information from the DOD and the Intelligence 
community?
    Admiral Church. I was granted full access to all DOD personnel and 
information in the conduct of my investigation, and I am confident that 
my report represents the full range of data available within DOD as of 
September 30, 2004. The independent activities of other government 
agencies were beyond the scope of my investigation.

    19. Senator Akaka. Admiral Church, I would like to follow up on 
Senator Reed's question to you regarding whether you interviewed 
Ambassador L. Paul Bremer, Administrator of the Coalition Provisional 
Authority (CPA), for your report. I am concerned by your response that 
you did not question Ambassador Bremer because he was attached to the 
Department of State. As we know, Ambassador Bremer was the head of the 
CPA, a division of the DOD, and as Administrator he reported directly 
to the SECDEF. Given your own misunderstanding of the chain of command 
in existence in Iraq at the beginning of the conflict until now, do you 
believe that similar misinterpretations by other military personnel 
could have contributed to the lack of understanding over authorized 
interrogation techniques?
    Admiral Church. The issue of whom Ambassador Bremer worked for has 
been the point of much discussion. The May 9, 2003, appointment letter 
from President Bush to the Honorable L. Paul Bremer directed that he 
``serve as my presidential Envoy to Iraq, reporting through the 
SECDEF.'' It also authorized him to ``oversee, direct, and coordinate 
all United States Government programs and activities in Iraq, except 
those under the command of Commander, U.S. Central Command.''
    Consistent with this direction, we found no evidence that 
Ambassador Bremer was ever involved, or perceived to be involved, in 
the development or implementation of military interrogation techniques. 
Furthermore, none of the investigations conducted on detention and 
interrogation operations in the global war on terrorism found any 
evidence of involvement by Ambassador Bremer in interrogation policy or 
practices. Lieutenant General Sanchez, the senior military commander in 
Iraq at the time, approved the interrogation policies. We found that in 
cases where interrogators were not aware of the policies approved by 
General Sanchez, they defaulted to their training, experience, and 
existing interrogation doctrine (Army FM 34-52).

    [Whereupon, at 11:36 a.m., the committee adjourned.]


 THE INVESTIGATION INTO FEDERAL BUREAU OF INVESTIGATION ALLEGATIONS OF 
     DETAINEE ABUSE AT THE GUANTANAMO BAY, CUBA, DETENTION FACILITY

                              ----------                              


                        WEDNESDAY, JULY 13, 2005

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:40 a.m. in room 
SD-106, Dirksen Senate Office Building, Senator John Warner 
(chairman) presiding.
    Committee members present: Senators Warner, McCain, Inhofe, 
Roberts, Sessions, Talent, Chambliss, Cornyn, Levin, Kennedy, 
Reed, E. Benjamin Nelson, and Clinton.
    Committee staff members present: Judith A. Ansley, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Charles W. Alsup, 
professional staff member; Regina A. Dubey, professional staff 
member; Sandra E. Luff, professional staff member; David M. 
Morriss, counsel; Lynn F. Rusten, professional staff member; 
Scott W. Stucky, general counsel; Diana G. Tabler, professional 
staff member; and Richard F. Walsh, counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Bridget W. Higgins, research 
assistant; Gerald J. Leeling, minority counsel; Peter K. 
Levine, minority counsel; and William G.P. Monahan, minority 
counsel.
    Staff assistants present: Andrew W. Florell, Catherine E. 
Sendak, and Nicholas W. West.
    Committee members' assistants present: Christopher J. Paul 
and Paul C. Hutton IV, assistants to Senator McCain; John A. 
Bonsell and Mark Powers, assistants to Senator Inhofe; Chris 
Arnold, assistant to Senator Roberts; Arch Galloway II, 
assistant to Senator Sessions; Clyde A. Taylor IV, assistant to 
Senator Chambliss; Meredith Moseley, assistant to Senator 
Graham; Russell J. Thomasson, assistant to Senator Cornyn; 
Mieke Y. Eoyang, assistant to Senator Kennedy; Elizabeth King, 
assistant to Senator Reed; William K. Sutey and Dan Shapiro, 
assistants to Senator Bill Nelson; Eric Pierce, assistant to 
Senator Ben Nelson; Mark Phillip Jones and Kimberly Jackson, 
assistants to Senator Dayton; and Andrew Shapiro, assistant to 
Senator Clinton.

       OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN

    Chairman Warner. The committee meets this morning to 
receive the testimony of the U.S. Southern Command (SOUTHCOM) 
investigation into the e-mails that came to light as a 
consequence of a Freedom of Information Act (FOIA) request in 
December 2004. The SOUTHCOM Commander, General Craddock, tasked 
first General Furlow and then subsequently General Schmidt to 
undertake the investigation, and we will put into the record, 
gentlemen, the order that you signed out, General Craddock, to 
have this investigation done at the conclusion of my remarks.
    We welcome our witnesses this morning: General Bantz J. 
Craddock, USA, Commander of the U.S. Southern Command; 
Lieutenant General Randall M. Schmidt, USAF, Senior 
Investigating Officer; and Brigadier General John T. Furlow, 
USA, Investigating Officer. We thank our witnesses and all 
others who are in attendance here this morning.
    In December 2004, pursuant to the allegations of detainee 
abuse at Guantanamo Bay (Gitmo) which were brought to light 
pursuant to a FOIA request for the Federal Bureau of 
Investigations (FBI) e-mails, General Craddock, you took very 
prompt action and convened this panel to investigate.
    This is the 12th major senior-level review of detainee 
operations and allegations of detainee abuse that has completed 
by various elements of the Department of Defense (DOD) and 
indeed an independent panel, the Schlesinger-Brown panel. In my 
judgment, the Department has performed credibly in 
investigating allegations of abuse and failure to follow 
professional standards and the law and regulation in these 
instances.
    The allegations of abuse referred to in the FBI e-mails 
occurred from the period of August to December 2002, and had 
come to the leadership of the Joint Task Force (JTF) Gitmo and 
SOUTHCOM and were in fact under investigation at that time. 
Appropriate procedural and disciplinary actions have been taken 
in some of the cases. This morning General Craddock will 
describe in detail the 28 e-mails which were turned into the 
Director of the FBI in response to his request to his agents 
and detail each of them as they were examined.
    The report before us this morning by General Craddock and 
his team indicated in three instances, just three instances, 
interrogations at Gitmo used techniques that violated Army 
doctrine and guidance from DOD. Now, this apparently is three 
out of some 24,000 interrogations that were conducted at Gitmo 
over the past 3 years.
    Now, General, we will also ask you to brief the committee 
in some detail--and by the way, colleagues, we will have this 
open hearing, which Senator Levin and I felt was essential, and 
this will be followed by a closed hearing. But in the course of 
the open hearing we will ask you, General Craddock, to give us 
your explanation for in effect reversing the finding of your 
two colleagues, Generals Schmidt and Furlow, and I quote that 
finding in the report: ``Major General Miller should be held 
accountable for failing to supervise interrogation of ISN-
063''--that is a high-value detainee--``and should be 
admonished for that failure.'' That is on page 2 of the 
Schmidt-Furlow report. You, General Craddock, as the convening 
authority and the final reviewer, did not agree with this 
finding and you will give us your thoughts on that.
    I feel very strongly that the Department and other entities 
which have examined this whole series of incidents at the 
prison, it clearly indicates that this Nation is a nation of 
laws and it will not tolerate inappropriate behavior by members 
of the Armed Forces or anyone else, and this Nation will 
investigate allegations of wrongdoing and, in accordance with 
due process, if persons are found who have violated those laws 
they will be held responsible. This report is another very 
important step in that direction.
    I think that will conclude my opening remarks.
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    Chairman Warner. Senator Levin.

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. Thank you, Mr. Chairman, for convening the 
hearing.
    Let me join you in welcoming our witnesses here today to 
discuss the results of the investigation of Generals Schmidt 
and Furlow into allegations of abuses at Gitmo, more 
specifically the allegations contained in specific e-mails from 
FBI agents at Gitmo witnessing interrogation practices of DOD 
intelligence personnel. These FBI e-mails, which came to light 
in December of last year following a FOIA request spoke of DOD 
interrogators' ``torture techniques'' and ``coercive techniques 
in the military's interviewing toolkit.'' One FBI agent at the 
time expressed alarm over DOD interrogation plans for one Gitmo 
detainee, saying, ``You won't believe it.'' Subsequent e-mails 
described abuses that FBI agents had witnessed, including 
detainees being chained in a fetal position on the floor for 18 
to 24 hours at a time, having urinated and defecated on 
themselves, and being subjected to extreme cold.
    The Schmidt-Furlow report confirms that detainees were 
subjected to ``degrading and abusive'' treatment in the course 
of interrogations at Gitmo. The report finds the use of 
techniques such as ``short-shackling'' in a fetal position for 
hours at a time, or using military working dogs to intimidate 
detainees during interrogation sessions, or a female 
interrogator rubbing up against a detainee's back and running 
her fingers through his hair as a form of ``gender coercion.''
    It is clear from the report that detainee mistreatment was 
not simply the product of a few rogue military police on a 
night shift. Rather, this mistreatment arose from the use of 
aggressive interrogation techniques. The purpose of those 
activities, whether authorized or not, was to obtain 
intelligence.
    The report of Generals Schmidt and Furlow does not resolve 
a number of critical questions surrounding the military's 
interrogation of detainees at Gitmo.
    From the FBI documents released under the FOIA request, we 
know that FBI concerns and objections went beyond the specific 
allegations of abuse. The FBI agents questioned not only the 
effectiveness but the ``propriety'' of DOD's aggressive 
interrogation techniques. The report does not address those 
concerns. As a result, the Schmidt-Furlow report does not 
examine the ``heated'' debate between FBI agents and DOD 
commanders at Gitmo, which was about propriety and 
effectiveness. Their report does address whether techniques 
were authorized or not authorized and found that some were and 
some were not. But their conclusions on the most egregious 
techniques remain classified.
    So from what we can determine, they do not look, again, at 
propriety or effectiveness of aggressive interrogation 
techniques, but rather at the authorization or lack of 
authorization of the use of those techniques. The FBI was so 
concerned about coercive DOD interrogation techniques that its 
agents at Gitmo were told to ``stand clear'' when military 
intelligence took over an interrogation. The report does not 
shed light on those discussions or what, if any, follow-up to 
those discussions was made. Nor does the report include 
documents related to these discussions, such as a May 30, 2003, 
electronic communication (EC) by FBI agents at Gitmo which, 
according to another FBI document, summarizes the FBI 
objections and includes as attachments a number of military 
documents discussing the authorization to use aggressive 
techniques. This committee needs to have the FBI documents 
relating to DOD intelligence techniques used at Gitmo, which 
FBI agents at the time believed were coercive or abusive. 
Following an earlier briefing on a related subject, I requested 
that FBI Director Mueller provide those documents.
    In addition, the report itself states that its 
investigation did not attempt to review the legality of 
interrogation techniques approved by the Secretary of Defense 
(SECDEF). The fact that a technique may have been approved does 
not resolve the question of its legality.
    There is a confusing aspect to the report which highlights 
some of these omissions. The report states that the current 
guidance for Gitmo approved by the SECDEF fails to define the 
term ``humane treatment'' and it recommends that this question 
be taken up by future policy review. So far so good. But the 
report nonetheless goes on to state that ``there was no 
evidence of . . . inhumane treatment.''
    This is seemingly inconsistent with the absence of a 
definition of ``humane treatment.'' But to compound the 
confusion, the report states that it did find ``degrading and 
abusive treatment.'' First saying that there is an absence of a 
definition of ``humane treatment,'' but then saying that 
degrading and abusive treatment is not the same as inhumane 
treatment is, frankly, truly a head-scratcher.
    We are left once again also with a lack of accountability 
for the confirmed mistreatment of detainees. Generals Schmidt 
and Furlow recommended that Major General Miller be held 
accountable for ``failing to supervise the interrogation of one 
high-value detainee'' and ``be admonished for that failure.'' 
However, General Craddock, who is with us this morning, the 
U.S. SOUTHCOM Commander, disapproved that recommendation.
    The recommendations of Generals Schmidt and Furlow include 
the need for a ``policy-level review'' regarding the ``status 
and treatment of detainees'' other than prisoners of war. They 
also call for a review of interrogation techniques and the role 
of military police in ``setting the conditions'' for subsequent 
interrogations. I wholeheartedly agree with Generals Schmidt 
and Furlow. Their recommendations, in my judgment, reinforce 
the need to establish an independent commission to address the 
issues left unaddressed by this report and a number of other 
issues which have been identified which have so far not been 
addressed by various inquiries and investigations. The very 
creation of such an independent commission will help protect 
our soldiers should they ever end up in enemy custody, by 
showing the world that we are determined that our detention and 
interrogation policies reflect the values that we cherish as 
Americans.
    Again, I welcome the testimony and look forward to it.
    Chairman Warner. Thank you, Senator.
    I would like to also bring out that there were some 24,000 
interrogations that were examined by this team and only a very 
few fall into the category of violations to Army doctrine.
    Senator Levin. Just on that point if I could, Mr. Chairman.
    Chairman Warner. Yes.
    Senator Levin. My understanding is that 24,000 
interrogations were not investigated by this panel, but the e-
mails of the FBI were the subject of their inquiry.
    Chairman Warner. We will bring clarity to that in the 
course of the hearing.
    But I think we have to always be mindful of the fact that 
we are fighting a war and the fact that some very few 
individuals, whether it was Abu Ghraib or here, did violate 
Army doctrine and other rules and regulations should in no way 
reflect adversely upon the bravery and the courage of the men 
and women of the Armed Forces fighting terrorism the world 
over.
    Senator Levin. I think there is a real consensus on that 
point. I could not agree with you more, Mr. Chairman.
    Chairman Warner. Thank you.
    General Craddock, glad to hear from you.

   STATEMENT OF GEN BANTZ J. CRADDOCK, USA, COMMANDER, U.S. 
 SOUTHERN COMMAND; ACCOMPANIED BY LT. GEN. RANDALL M. SCHMIDT, 
USAF, SENIOR INVESTIGATING OFFICER; AND BG JOHN T. FURLOW, USA, 
                     INVESTIGATING OFFICER

    General Craddock. Thank you. Chairman Warner, Senator 
Levin, distinguished members of the committee: Thank you for 
the opportunity to appear before you today to brief you on the 
results of the Army Regulation (AR) 15-6 investigation that I 
directed into allegations of detainee abuse at our Gitmo 
detention facility.
    As Commander of United States SOUTHCOM, I am responsible 
for ensuring that detention and intelligence operations at JTF 
Gitmo meet the high standards that our Nation expects from its 
military. I want to make it clear that I have full faith and 
confidence in the fine work that the servicemembers and the 
leaders of JTF Gitmo are doing each and every day for our 
Nation. Their work contributes to our Nation's safety and their 
adherence to the highest standards of humane treatment of the 
detainees under their charge is lauded by all who visit the 
facility.
    I would also like to point out that the operations at Gitmo 
are still providing intelligence that supports the day-to-day 
operations of our warfighters engaged in the global war on 
terrorism, are helping our allies and partners in their fight 
against terrorists, and are keeping dangerous enemy combatants 
off the battlefield.
    Of the more than 70,000 detainees who have been captured in 
the global war on terror, less than 800 have been sent to Gitmo 
because of the threat they posed and the intelligence they 
possessed. Today approximately 520 detainees remain at Gitmo 
and approximately 235 have been released or transferred to the 
custody of other countries because they no longer pose a threat 
or they no longer have intelligence value.
    Today we have in our custody at Gitmo terrorist trainers, 
bomb makers, terrorist recruiters, facilitators and financiers, 
Osama bin Laden's bodyguards, and would-be suicide bombers. 
Through them we have learned the organizational structure of al 
Qaeda and other terrorist groups, the extent of the terrorist 
presence in Europe, the United States, and the Middle East, the 
methods of and location of terrorist recruitment centers, how 
operatives are trained, and al Qaeda's efforts to acquire 
weapons of mass destruction.
    One enemy combatant has provided insights into al Qaeda 
pre-operational planning for the 11 September 2001 attacks, to 
include methods and criteria for recruiting operatives for the 
attacks and the logistics involved in carrying them out. He 
described the facilitators he met along the way, the methods of 
financing the operation, the way he obtained his U.S. visa, and 
the logistics involved in traveling to the United States and 
communicating with his handlers along the way.
    This particular detainee, Mohammed al-Qahtani, has during 
his interrogation sworn his loyalty to Osama bin Laden. He was 
to take part in the September 11 attacks, but the INS blocked 
his entry into the United States in August of that year at the 
Orlando International Airport.
    He was captured in December 2001 on the Afghanistan-
Pakistan border with other al Qaeda members and brought to 
Gitmo in February 2002. In July 2002 a fingerprint match from 
the INS verified Qahtani's presence in Orlando prior to the 
September 11 attacks and increased interest in getting him to 
reveal what he might know about future attacks planned around 
the 1-year anniversary of September 11.
    In the fall of 2002, Qahtani successfully resisted all 
interrogation efforts using standard criminal investigation 
techniques. This led the investigators at Gitmo to request the 
approval of more aggressive interrogation techniques, which 
were approved by higher authority. During Qahtani's 
interrogation from November 2002 through January 2003, the 
application of these techniques by the JTF interrogators led to 
breaking Qahtani's resistance and to solid intelligence gains.
    These and other intelligence gains come only through 
persistence, patience, and vigilance--diligence, excuse me, 
diligence. These traits, along with the highest standards of 
professional conduct, are the hallmarks of the men and women 
serving our Nation today as part of JTF Gitmo.
    Now let me address the investigation. The allegations in 
the FBI e-mails came to light as the result of the public 
release of a series of FBI e-mails that contained these 
allegations. After a review of these e-mails following their 
public release in December of last year, I determined that the 
allegations merited a detailed examination in order to 
establish the truth and ascertain what, if any, actions needed 
to be taken.
    I ordered the AR 15-6 investigation and appointed Brigadier 
General John Furlow, the Deputy Commander for my Army component 
command, as the Investigating Officer. Brigadier General Furlow 
was directed to address the following allegations that were 
drawn from the FBI e-mails:
    One, that military interrogators improperly used military 
working dogs during interrogation sessions to threaten 
detainees or for some other purpose;
    Two, that military interrogators improperly used duct tape 
to cover a detainee's mouth and head;
    Three, that DOD interrogators improperly impersonated FBI 
agents and Department of State officers during the 
interrogation of detainees;
    Four, that on several occasions DOD interrogators 
improperly played loud music and yelled loudly at detainees;
    Five, that military personnel improperly interfered with 
FBI interrogators in the performance of their FBI duties;
    Six, that military interrogators improperly used sleep 
deprivation against detainees;
    Seven, that military interrogators improperly chained 
detainees and placed them in a fetal position on the floor and 
denied them food and water for long periods of time; and
    Eight, that military interrogators improperly used extremes 
of heat and cold during their interrogation of detainees.
    Subsequent to his initial appointment, I also directed 
General Furlow to investigate two additional allegations 
concerning a female military interrogator performing a lap 
dance on a detainee and the use of red ink as fake menstrual 
blood during an interrogation. These allegations came from a 
separate document. I did not limit General Furlow to these 
allegations. I gave him the flexibility to bring into his 
investigation any additional allegations of detainee abuse that 
he might discover during the course of his work.
    On 28 February 2005, after 2 months of investigation, 
General Furlow advised me that he needed to interview officers 
who were senior in grade to him. As a result I appointed 
Lieutenant General Mark Schmidt, the Commander of my Air Force 
component command, as the Senior Investigating Officer. 
Generals Schmidt and Furlow are here with me today and in a 
moment they will brief you on the conduct and findings of their 
investigation. Their report reflects the combined findings and 
conclusions of the initial investigative efforts and the 
combined investigative efforts of both of these officers.
    General Schmidt submitted his initial report to me on the 
1st of April. After review, I directed on the 5th of May that 
the investigation be reopened to consider two memos from the 
December 2004 time frame that had been recently discovered 
regarding a special interrogation plan. While the investigative 
team was completing this additional task, I further directed on 
the 2nd of June that General Schmidt address a second set of 
new allegations made by a detainee that also concerned a 
special interrogation plan.
    General Schmidt completed his investigation on the 9th of 
June, at which time my staff judge advocate began a thorough 
legal review of the report. I have completed my personal review 
of the report and taken my actions with regards to the report's 
findings and recommendations. I will inform you of my actions 
after General Schmidt and General Furlow brief you on their 
investigation and findings.
    So I will turn it over to General Schmidt and General 
Furlow.
    Chairman Warner. General Schmidt.
    General Schmidt. Thank you, sir. Senator Warner, Senator 
Levin, distinguished members of the committee: Thank you for 
the opportunity to brief you on the results of this AR 15-6 
investigation into the FBI allegations of detainee abuse at 
Gitmo.
    On December 29, 2004, General Furlow was appointed. He 
brought three U.S. Army staff members with him to help do this 
investigation. Then on February 28 I included my staff judge 
advocate and two other action officers, and we were the basic 
eight members that completed this investigation.
    I provided to all the members a copy of the report, and I 
apologize for its length. There are about 21 pages. But if I go 
through the report I will refer to those pages as I talk about 
the conduct of the report, what we found, and what our 
recommendations and findings were. That would be helpful. So I 
will refer to those pages for the members.
    Chairman Warner. We will put the complete statements and 
reports of each of the investigating officers in the record.
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    General Schmidt. Thank you, Mr. Chairman.
    Slide 2, you can see the purpose, as was stated by General 
Craddock, was to investigate those FBI allegations into the 
misconduct. Now, I will tell you it was a very focused 
investigation. It was about the FBI allegations. But we were 
also asked to look at whatever else we found in the way of 
discovery that led to detainee abuse. So that was our charter.
    We were also asked to determine accountability for 
substantiated violations, and then in the end I was to 
recommend action at the appropriate level for any 
accountability that could be identified for substantiated 
violations.
    On Slide 2, as General Craddock has said, the e-mails from 
the FBI generated this investigation. The FBI Inspection 
Division sent an e-mail survey out to 493 FBI personnel who had 
been assigned to Gitmo from 9 September 2001 to 9 July 2004. In 
response to those surveys, 408 FBI agents had nothing to 
report. There were 59 who came back with no responses and that 
was determined by the FBI to be a negative reply as well. 26 
agents replied that they had some indication or knowledge that 
they had perceived aggressive treatment or aggressive 
interrogation techniques that would not be consistent with FBI 
interrogation techniques and they reported those back to the 
FBI.
    Of those, there were multiple reports of the same type of 
event and we boiled those down to eight, and we split one 
because it involved two different categories and we called it 
nine. So out of the 26 that came back positive, we looked at 9.
    Slide 4, please.
    The scope of the review. You can see on the slide it was 
fairly comprehensive, even though this was a focused report. 
The investigation was directed and accomplished under the 
informal procedures of the AR 15-6. This AR 15-6 investigation 
centered on the FBI alleged abuses occurring during 
interrogation operations. We found incidents of abuse during 
detention operations, all of which were appropriately addressed 
by the command.
    The investigation team conducted a comprehensive review of 
thousands of documents and statements pertaining to allegations 
of abuse occurring at Gitmo, to include the complete medical 
records of the subjects of the first and second special 
interrogation plan. The team interviewed 30 FBI agents, 
conducted interviews of over 100 personnel from 6 January 2005 
to 24 March 2005, and had access to hundreds of interviews 
conducted by several recent investigations. These interviews 
included personnel assigned to Gitmo, U.S. SOUTHCOM, the Office 
of the Secretary of Defense during the tenure of JTF's 160, 
170, and Gitmo. It included 76 DOD personnel, to include every 
general officer who commanded the Task Force 160, 170, or the 
JTF Gitmo. Additionally, we considered abuse allegations made 
by the two high-value detainees themselves, as General Craddock 
has said. The investigation team attempted to determine if the 
allegations alleged by the FBI, in fact, occurred.
    During the course of the follow-up investigations, the AR 
15-6 team also considered allegations raised specifically by 
the detainees who were the subject of those plans. The 
investigating team applied a preponderance standard of proof 
consistent with guidance contained in AR 15-6. Much of the 
testimony was obtained from witnesses who had served as much as 
3 years earlier and sometimes for 45 days or less. Civilian 
witnesses were not required to cooperate, nor under subpoena to 
answer questions.
    The team also applied guidance contained in Field Manual 
(FM) 34-52, Commander of U.S. SOUTHCOM, and SECDEF memorandums 
authorizing special interrogation techniques if deciding if a 
particular interrogation approach fell properly within an 
authorized technique. In those cases in which the team 
concluded that the allegation had in fact occurred, the team 
then considered whether the incident was in compliance with 
interrogation techniques that were approved either at the time 
of the incident or subsequent to the incident. In those cases 
where it was determined the allegation occurred and to not have 
been an authorized technique, the team then reviewed whether 
disciplinary action had already been taken and the propriety of 
that action. On 28 March 2005, General Craddock asked me to 
determine accountability for those substantiated violations 
that had no command action taken.
    We did not review the legal validity of the various 
interrogation techniques outlined in the Army FM 34-52 or those 
approved by the SECDEF.
    If you to go Slide 5, please. This is a summary of findings 
and I will go through the findings item by item in detail in 
the following slides. You can see in the nine FBI allegations 
two were unsubstantiated; we found no basis for those 
allegations. Two were substantiated and in fact were not 
authorized. Five were substantiated; however, they were 
determined to be authorized under the current guidance.
    Interrogation of a particular ISN-063--and this is one 
person--in our judgment resulted in abusive and degrading 
treatment, and that was determined by the cumulative effect of 
creative, persistent, and lengthy interrogations which resulted 
in that determination.
    The third bullet: There was a threat to the second high-
value detainee that was discovered during the investigation.
    As the bottom line, though, we found no torture. Detention 
and interrogation operations were safe, secure, and humane.
    Slide 6. To the unsubstantiated allegations: On the left-
hand column on your slide you will see an asterisk. Any of the 
allegations that we discuss in the briefing that have an 
asterisk relate to the FBI allegations. Those that are not 
relate to discovery events.
    Chairman Warner. General, we do not have page numbers on 
our copy.
    General Schmidt. I am sorry, sir, but at the very bottom of 
the right there is a faint number, the very bottom of the 
right-hand part of the slide.
    Chairman Warner. Oh, I see. Well, that is an unusual way to 
do it. I see it now, all right.
    General Schmidt. I am sorry, sir.
    Chairman Warner. We are not holding you responsible, but we 
thank you for bringing it to my attention.
    General Schmidt. Yes, sir.
    I am currently briefing from Slide 6. Reference to A: 
Investigation revealed that interrogators impersonated FBI 
agents and we believe that some of the FBI agents characterized 
this as interference. All testimony indicated the FBI 
impersonations were isolated and they were stopped upon FBI 
request. Further, we could find no FBI agent that could cite an 
actual example of interference with their mission.
    Reference to the allegation that was unsubstantiated in B: 
Regarding the allegation by an agent she observed a detainee to 
be deprived of food and water. We considered both the statement 
she made on 12 July 2004 e-mail and her 9 September FBI 
telephone interview. We made several efforts to conduct our own 
interview, but our FBI liaison continually advised us that she 
was unavailable. During the course of our investigation, we 
were unable to corroborate any allegations that detainees had 
been denied food or water.
    Also, because of the inconsistencies in that agent's 
testimony and the lack of any other corroboration, we were 
unable to substantiate the second allegation.
    To Slide 7. It is very important, I think, that we 
understand what we used as the authorities. FM 34-52 is the 
baseline providing doctrinal guidance, techniques, and 
procedures governing employment of interrogators as human 
intelligence (HUMINT) collection assets. This was all used and 
was in force at the time Gitmo interrogation operations began 
in March 2002.
    Slide 8. Due to the difficulties, as General Craddock said, 
of interrogating a single high-value detainee, ISN-063, JTF 
Gitmo requested on 11 October 2002 additional techniques. As 
you look at that slide, all of the category 1, category 2, and 
category 3 techniques were on the list requested by the JTF. On 
December 2 the SECDEF approved the ones that have the green 
check marks. You can see it is all of the category 1, category 
2, and only one of the category 3. After approximately 45 days, 
all category 2 and category 3 techniques were rescinded.
    Next slide, Slide 9. On April 16, the SECDEF approved these 
interrogation techniques and this is the sole authority in 
existence today. The FM 34-52 is used as a guide. As you look 
at the slide you will notice that B, I, O, and X are 
highlighted. Those techniques, if they are to be used, require 
the showing of military necessity and advance notice to the 
SECDEF. These are in force today.
    Slide 10. I put a slide together that just shows that in a 
more concise way. But I have highlighted a basic premise and 
guidance that has been inherent in every change of guidance and 
policy that has come down, and that is the baseline of humane 
treatment of all detainees.
    Chairman Warner. General, the committee will ask that you 
provide for the record first, referring to Slide 8, the green 
check marks all approved by SECDEF. Then in what form did he 
rescind those? By written communication, I presume?
    [The information referred to follows:]

    The Secretary of Defense memorandum dated December 2, 2002, which 
approved the techniques outlined in slide 8 was exhibit #15 of the Army 
Regulation 15-6 Investigation Report into FBI Allegations of Detainee 
Abuse dated April 1, 2005, (amended June 9, 2005) which was provided to 
the committee.

    General Schmidt. That is affirmative, sir.
    Chairman Warner. Can we have copies of that written 
communication?
    General Schmidt. Yes, sir, we will provide those to you.
    [The information referred to follows:]

    The Secretary of Defense memorandum dated January 15, 2003, which 
rescinds the December 2, 2002, memorandum was exhibit #16 of the Army 
Regulation 15-6 Investigation Report into FBI Allegations of Detainee 
Abuse dated April 1, 2005, (amended June 9, 2005) which was provided to 
the committee.

    Chairman Warner. Now, was that written communication 
different than the memo of 16 April 2003? Is that a separate 
document?
    General Schmidt. It is a separate document, also written, 
and we can provide that for the record as well.
    Chairman Warner. All right, thank you.
    General Schmidt. As I move, humane treatment again being 
the baseline of any issuance of policy and guidance regarding 
interrogation.
    To move to Slide 11----
    Chairman Warner. Before we leave 9, we will need to have an 
amplification of your note there that techniques B, I, O, and X 
require showing of military necessity and advance notice. The 
full document that is behind that, we will need that also.
    General Schmidt. Yes, sir, we will do that.
    [The information referred to follows:]

    The Secretary of Defense memorandum dated April 16, 2003, which 
outlines the requirement to show military necessity was exhibit #17 of 
the Army Regulation 15-6 Investigation Report into FBI Allegations of 
Detainee Abuse dated April 1, 2005, (amended June 9, 2005) which was 
provided to the committee.

    General Schmidt. On Slide 11, I thought it would be 
illustrative to understand how the broad guidance or techniques 
that were available to the JTF, not directed to use but were 
available for the JTF Gitmo to use, on this particular 
detainee, how it moved from a high-order, fairly benign looking 
technique into an application that you will see later in the 
briefing that got very specific.
    On Slide 11 it says ``FM 34-52 has an example of a 
technique called `futility.' It's intent is for the 
interrogator to convince the source that resistance to 
questioning is futile.'' That guidance is now an approved 
technique chosen by the JTF. The process it goes through to be 
used--there is an interrogator, normally a noncommissioned 
officer (NCO), who constructs a written interrogation plan that 
is vetted through a team chief and an intelligence control 
element supervisor, which could be Defense Intelligence Agency 
(DIA) or an officer at the O-5 or GT-14 level. Then, the plan 
is approved and vetted through that level, and then the 
interrogation is conducted with a translator in consultation 
possibly with another analyst.
    The Gitmo example that I put at the bottom there is for 
futility, again convincing the source that resistance is 
futile, tell the detainee about how al Qaeda is falling apart, 
talk about how everyone has been killed or captured, and tell 
him what we know about him so that he feels that he has already 
been exploited at some point and it is futile to withhold 
information.
    However, as it gets down to the interrogation room that may 
be, it may involve gender coercion via some form of domination. 
The detainee does not want to hear this and he does not want to 
hear it from a woman. You will see that being straddled, not 
touched, massaged, or possibly mild non-injurious touching, 
such as putting perfume on the arm and that sort of thing, 
invades a detainees personal space. This is part of how they 
make the futility element work, with this more aggressive 
technique.
    Chairman Warner. Now, all of those actions would be done by 
a female?
    General Schmidt. That could have been done by a female. In 
this case it was, and we will talk about that specific 
interrogation. This is an example how top-down policy was 
applied at Gitmo.
    On the next page there is a second example, also taken from 
FM 34-52 again. Example was ``Ego Down.'' That is an approach 
based on attacking the source's sense of personal worth. Again, 
the same process: from the NCO, vetted through about the O-5, 
GT-14 level, and then the interrogation is conducted with 
enlisted personnel.
    To bring the ego down, in the Gitmo application example the 
detainee was told that his mother and sister were whores, he 
was forced to wear women's lingerie, there were multiple 
allegations of homosexuality, and he was told that his comrades 
were aware of that. He was forced to dance with a male 
interrogator, subject to strip searches for control measures, 
not for security, and he was forced to perform dog tricks--all 
this to lower his personal sense of worth.
    That is from the higher order technique down to an 
application. Somewhere in there there has to be a translation 
and that is where we started looking for accountability, in the 
translation from the high order example of a technique to the 
application, and we will go through those, sir, as we go 
through the briefing.
    As we go to Slide 13, we begin to talk about the 
allegations. Again, on the left-hand side of the briefing if 
you see an asterisk that relates directly to something that was 
observed by an FBI agent that did not conform to FBI protocol 
for interrogation, which they found to be aggressive.
    We found two substantiated allegations to be not 
authorized. The chaining of detainees to the floor, they were 
short-shackled to the floor in the interrogation room. Chaining 
detainees in this manner was used as a force protection measure 
in the early stages of operation. It is now specifically 
prohibited by Gitmo standard operating procedures.
    We also determined that the chaining to the floor, the 
short-shackling, where the handcuffs are put down at the floor 
level, was only done briefly, it was done as a force protection 
measure, and it was never done in the interrogation, 
``briefly'' meaning awaiting interrogation. That has now been 
stopped. So that was substantiated.
    This was not construed to be a stress position and it was 
not considered to be overly abusive. There was no injury, there 
was no pain involved in this. It was a force security measure.
    On the second one, an interrogator directed the use of duct 
tape to quiet a detainee. This was not authorized. In this 
case, a detainee was resisting interrogation by continuous 
chanting. According to witnesses, one was chanting a resistance 
mantra, another one was chanting things from the Koran. At the 
direction of a civilian intelligence control element chief, 
tape was used to quiet the detainee. This intelligence chief 
was verbally admonished by the Judge Advocate General (JAG) 
onsite at Gitmo.
    Slide 14. This slide refers to the general population, what 
we found, and does not necessarily apply to ISN-063. We will 
treat him independently and another, second high-value 
detainee. In the general population, the first four, A, B, C, 
and D on your briefing on Slide 14, were alleged by the FBI. 
The yelling, the loud music, we found that to be substantiated, 
did happen, and it was authorized under the FM 34-52 under the 
technique of futility.
    Under B, impersonation of FBI and Department of State 
agents was authorized under the Secretary of Defense action 
memo in December 2002 under category 1, deception.
    C, the air conditioners, was not authorized prior to 16 
December 2003 under environmental manipulation, but it was 
authorized under the SECDEF 16 April 2003 memo. Environmental 
manipulation was approved as an appropriate and humane 
interrogation technique.
    D, disrupt sleep patterns. That was authorized by SECDEF 16 
April 2003 memo, sleep adjustment. Now, some of these events 
happened before 16 April, but if they were judged to be 
appropriate as a technique in this case at that time we found 
that they should have been appropriate prior.
    E, the female interrogator approached detainee from behind, 
rubbed his back, whispered in his ear, and ran fingers through 
his hair; that was authorized by the FM under the futility 
technique.
    F, the female interrogator put perfume on a detainee's arm; 
also authorized under futility, also authorized under the 
action memo from the SECDEF under mild, non-injurious physical 
contact.
    The last one, G, under substantiated findings, involved the 
case of the female interrogator told the detainee that the red 
marking on her hand was menstrual blood and then wiped her hand 
on the detainee. This was a not authorized event. It was a 
spontaneous act of revenge by the interrogator. She had been 
spit on by the detainee. She left the room. She was angry. She 
put some marker on her hand, walked back in, put it on him, and 
said: You know what that is? He goes: No. She told him, and it 
in fact unsettled him.
    She was verbally reprimanded, removed from interrogation 
duties for an unspecified time--we determined about 30 days--
she was retrained, and then she was reinstated.
    We listed these female coercive substantiated findings 
because we needed to dispel the idea that there had been a lap 
dance committed, and we could find no evidence that that ever 
occurred. But there was enough of these coercive sort of things 
with female invasion of space that that could have been 
interpreted by an FBI agent. So we looked at all of these.
    Slide 15, please. Now we get to the isolated case, and this 
is where most of the findings we have about, that we classify 
as abusive or degrading treatment are concerned, with ISN-063. 
You will see on Slide 15 this is not a good person. This is not 
a person that we have any compassion for and it was difficult 
to find any pity for this man.
    A Saudi citizen and an al Qaeda operative. Denied entry 
into the U.S., as General Craddock said, and it was just a 
matter of a sharp agent that kept him from entering the United 
States at Orlando. He was captured in Afghanistan, he came to 
Gitmo in February 2002. He admitted to being the 20th hijacker 
and he expected to fly on United Airlines Flight 93.
    He proved to have intimate knowledge of future plans. He 
successfully resisted standard interrogation techniques at 
Gitmo for 8 months and he is the genesis for the request by the 
JTF at Gitmo for more techniques that might be able to get past 
his resistance training.
    Slide 16, referencing ISN-063, and this is all about this 
one individual. A, B, and C, as you can see, involved gender 
coercion, invasion of space, and futility, and that involved 
the straddling. Twice it happened, while MPs held him down 
while a female interrogator straddled him without placing 
weight on the detainee.
    Invasion of space, B. The female interrogator on one 
occasion massaged the back and neck of ISN-063 over his 
clothing.
    C, female interrogators on numerous occasions invaded the 
personal space of ISN-063 to disrupt his concentration.
    Asterisk on D, meaning it was observed by the FBI: On 
numerous occasions between November 2002 and January 2003, ISN-
063 was yelled at or subjected to loud music during the 
interrogation. That was an authorized technique on ISN-063.
    Slide 17. These are all substantiated findings, and up 
front these all fall under the broad technique of pride and ego 
down, which is an authorized technique.
    E, ISN-063 was told his mother and sister were whores. He 
was forced to wear a bra and a thong placed on his head during 
the course of interrogation. Twice interrogators told him he 
was a homosexual or had homosexual tendencies and that other 
detainees knew. He was forced to dance with a male 
interrogator. He was subjected to several strip searches as a 
control measure, not for security. An interrogator tied a leash 
to his hand chains, led him around the room, and conducted a 
series of dog tricks.
    Slide 18. The first two have the asterisk, observed or 
reported through FBI allegations. Air conditioners were 
adjusted to make the rooms uncomfortable. That was not 
authorized prior to 16 December. However, it was authorized by 
the SECDEF 16 April 2003 under environmental manipulation, and 
it's an approved, appropriate, humane Gitmo technique.
    L, twice interrogators brought military working dogs into 
the Gitmo room and directed to growl, bark, and show teeth at 
the detainee. Dogs were authorized under the SECDEF action 
memo, again the additional techniques, 2 December 2002, 
category 2, individual phobias. Both of those were FBI alleged 
observed.
    M, interrogators subjected ISN-063 to segregation from the 
general population from 8 August 2002 to 15 January 2003, and 
that is 160 days. That was authorized by the SECDEF action memo 
of 2 December 2002, category 2, isolation facility.
    Interrogators subjected ISN-063 to 18- to 20-hour 
interrogations per day. Those occurred 48 out of a 54-day 
straight period. That was authorized by the SECDEF action memo 
of 2 December 2002, category 2, 20-hour interrogations. The 
interrogation days were typically a 7-hour interrogation, a new 
set of interrogators would come in, 7 hours of interrogation, a 
new set would come in, 6 hours, and then the detainee was 
released for 4 hours. He could sleep if he chose to sleep.
    Slide 19, and this is the discussion, not a finding, on the 
ISN-063. While taken individually, each technique and the 
application of those techniques was authorized and did not rise 
to the level in our judgment of inhumane treatment, and this AR 
15-6 team found that the cumulative effect of the interrogation 
was degrading and abusive, again regarding this particular 
single individual.
    Particularly troubling is the combined impact of the 160 
days of the segregation from other detainees, 48 of 54 
consecutive days of 18 to 20-hour interrogations, and the 
creative application of authorized interrogation techniques. 
Requiring the subject of the first special interrogation plan 
to be led around by a leash tied to chains, placing the thong 
on his head, wearing a bra, insulting his mother and sister, 
being forced to stand naked in front of a female interrogator 
for a period of at least 5 minutes, using strip searches as 
interrogation techniques, the AR 15-6 team found to be abusive 
and degrading, particularly done within the context of the 48 
days of intense and long interrogations.
    I do not, however, consider this treatment to have crossed 
the threshold of being inhumane. In making that conclusion, I 
considered the President's mandate to treat the detainees 
humanely and the requirement to ensure detainees had adequate 
food, drinking water, clothing, shelter, and medical treatment. 
In this case the treatment was not determined by me to be 
inhumane because the interrogators not only ensured that ISN-
063 had adequate food, water, clothing, and shelter, but also 
that the interrogation and the techniques used were done in a 
highly controlled interrogation environment, with medical 
personnel continuously monitoring his health and well-being.
    On the other hand, despite the controlled environment of 
the interrogation room, we felt the commander of the JTF still 
failed to monitor the cumulative application of the creative 
interrogation techniques applied over a lengthy period of time. 
In interviews, the commander of the JTF stated he was unaware 
of almost any of these applications.
    Both FM 34-52 and the current SECDEF guidance warn 
interrogators of the responsibility to monitor the cumulative 
effects of interrogation. General Miller was aware of the FM's 
warning and expressly told the FBI agents--and had been 
expressly told by FBI agents of their concerns about the 
dangers of counter-resistance interrogations. Despite these 
facts, in my opinion he failed to monitor and place limits on 
the application of authorized interrogation techniques--
authorized interrogation techniques--and allowed this 
interrogation to result in potentially unnecessary and 
degrading abusive treatment.
    On Slide 20, we will have to move to a closed hearing to 
discuss the second high-value detainee. But we will discuss in 
open session some of the treatment.
    Slide 21, the second high-value detainee substantiated 
findings. The first two have asterisks, again reminding that 
these were observed by the FBI agents as alleged abuse. The DOD 
interrogator impersonated a Navy captain assigned to the White 
House. That impersonation was authorized under the FM 34-52 as 
a deception approach.
    Interrogators adjusted air conditioners to make the rooms 
uncomfortable--again, not authorized prior to December; 
however, authorized by the SECDEF 16 April 2003 memo, 
environmental manipulation as an approved, appropriate humane 
interrogation technique.
    On C, this is one that was found by discovery, and that was 
that a United States Navy lieutenant commander communicated a 
threat to the second high-value detainee and his family, and it 
was determined to be a threat of death. We made a 
recommendation that the United States Navy lieutenant commander 
had violated the UCMJ Article 134 by committing a threat and we 
recommended discipline by his current commander.
    We were unable--again, this is not a legal criminal 
investigation by us; we did not have that authority. But the 
preponderance of evidence--even in the absence of several key 
witnesses who declined to be interviewed, we found a 
preponderance of the evidence showed that this did in fact 
happen.
    Slide 22.
    Chairman Warner. Let me get that clear. Several key 
witnesses declined to be interviewed?
    General Schmidt. That is correct, sir.
    Chairman Warner. Can you amplify that? Who were they and 
what procedures did you take to try and get those interviews, 
and did you go above your chain or your own level to a higher 
level to try and get assistance to get those people?
    General Schmidt. Sir, the higher level would obviously be 
the combatant commander and that will go to General Craddock 
and he will address that in his remarks. The people who would 
not acquiesce to being interviewed in this and we could not 
interview them because they were civilian, they were retired, 
or they were reservists. If they were military, we could direct 
them to participate and cooperate with the investigation.
    One was a DIA individual, and I need to make sure I am 
correct on this. One was a staff judge advocate who said he 
would plead his rights to not get involved in this, and we did 
not have the authority to go around that. Another one was a--
and the lieutenant commander would also not participate in this 
interview.
    Chairman Warner. Did any FBI personnel decline to be 
interviewed?
    General Schmidt. No, sir.
    Senator Levin. Excuse me. Was the lieutenant commander on 
Active Duty or retired?
    General Schmidt. The lieutenant commander was a reservist 
and I believe he is no longer even on Reserve status. Is that 
correct?
    He is still in the Reserves. He has invoked his rights and 
he will have to be interviewed in the investigation that will 
follow this. Now, I have recommended, again, that this goes to 
a commander.
    Senator Levin. Just clarify ``invoked his rights''? Be more 
specific? What rights?
    General Schmidt. Invoked his rights to not incriminate 
himself or participate in the interview.
    Senator Levin. Thank you.
    Chairman Warner. There will be a follow-on criminal 
investigation, is that correct? Did you bring that out to 
General Craddock?
    General Schmidt. I believe so, sir.
    Sir, we get to Slide 22, and again I apologize for the 
long-winded and the level of definition. But again to review, 
that we had nine FBI allegations, two unsubstantiated, two were 
substantiated that were not authorized; and there were five 
substantiated, however upon investigation we found that under 
broad authorities they were authorized.
    In my judgment--and we looked at this very, very 
carefully--no torture occurred. Detention and interrogation 
operations across the board, the general population, and again 
looking through all the evidence that we could, were safe, 
secure, and humane.
    We did find that, regarding one detainee, ISN-063, I felt 
that the cumulative effect of simultaneous applications of 
numerous authorized techniques had abusive and degrading impact 
on the detainee.
    Lastly, the second high-value detainee, the naval commander 
violated the UCMJ by communicating a threat, and to us it was a 
death threat, and that can be determined once we have more 
testimony under oath to that.
    Chairman Warner. Is there any conflict between the two 
substantiated and not authorized and no torture occurred at 
all?
    General Schmidt. I am sorry? Restate the question?
    Chairman Warner. I am just trying to figure out. Two 
substantiated, not authorized, and then your general conclusion 
is there was no torture, detainee and interrogation operations 
were safe and secure.
    General Schmidt. Sir, we made a distinction between what 
torture and inhumane treatment would be, given the general 
guidelines, and then what might be abusive and degrading. 
Something might be degrading but not necessarily torture, and 
it may not be inhumane. It may be humiliating, but it may not 
be torture.
    So we can say no torture, no physical pain, injury. There 
was a safe, secure environment the entire time. However, there 
was degrading and abusive treatment to this particular 
individual. That was our charter, was to find that.
    On the next slide, sir, that is the end. Again, I apologize 
for the lengthy----
    Chairman Warner. You do not need any apologies. This is a 
very important subject and we need to have all the details 
before us.
    General Schmidt. Sir, at this time I would like to return 
the microphone to General Craddock.
    General Craddock. Thank you.
    Chairman Warner. General Furlow, is he going to participate 
in the direct presentation?
    General Craddock. No, sir. He is available to answer 
questions when we get to that stage.
    Chairman Warner. All right.
    General Craddock. Under AR 15-6, as the appointing 
authority for the investigation, my responsibility was to 
review the report and take action on the findings and 
recommendations. In taking my action, I accepted or approved 
all the numbered findings and recommendations included in the 
written report which was provided to the committee, with the 
following two exceptions.
    I disapproved Recommendation No. 16, that Major General 
Miller be held accountable for failing to supervise the 
interrogation of ISN-063 and be admonished for that failure. 
However, in accordance with current procedures and regulations, 
I have forwarded this report to the Department of the Army 
Inspector General for review and action as he deems 
appropriate.
    I modified Recommendation No. 22 to request that the Naval 
Criminal Investigative Service (NCIS) conduct further 
investigation into the threat communicated by an interrogator 
to a particular high-value detainee before forwarding the 
matter to the current commander of that interrogator for his 
action as he deems appropriate.
    I will now explain the rationale for my decisions. My 
reason for disapproving Recommendation No. 16 is that the 
interrogation----
    Chairman Warner. That is relating to General Miller, for 
those trying to follow this. It is a little difficult.
    General Craddock. With regard to Major General Miller, 
Recommendation No. 16, my reason for disapproving that 
recommendation is that the interrogation of ISN-063 did not 
result in any violation of any U.S. law or policy and the 
degree of supervision provided by Major General Miller does not 
warrant admonishment under the circumstances. As the commander, 
even in the early days of his assignment, General Miller was 
responsible for the conduct of his subordinates. However, as 
all commanders must do to an extent they determine appropriate, 
General Miller relied on the judgment and experience of his 
people to carry out their duties in a manner that was both 
professional and authorized.
    The evidence shows that he was not misguided in his trust, 
since there was no finding that law or policy was violated. 
General Miller did supervise the interrogation in that he was 
aware of the most serious aspects of ISN-063's interrogation: 
the length of interrogation sessions, the number of days over 
which it was conducted, and the length of segregation from 
other detainees.
    The evidence does show that General Miller was not aware of 
certain other aspects of that interrogation. However, since 
there was no finding that U.S. law or policy was violated, 
there is nothing for which to hold him accountable concerning 
the interrogation of ISN-063. Therefore, under the 
circumstances, I do not believe that those aspects of which he 
was not aware warrant disciplinary action.
    Again, of particular importance to my decision is the fact 
there was no finding that the interrogation of ISN-063, albeit 
characterized as creative, aggressive, and persistent, violated 
U.S. law or policy. Additionally, I think it is important to 
note that General Miller arrived in Gitmo for the first time 
when he assumed command on 4 November 2002. He is an 
artilleryman with no previous command experience and detention 
and strategic intelligence-gathering operations. Upon arrival, 
he assumed command of two organizations, JTF 160 and 170, that 
upon his arrival were merged into JTF Gitmo. The operations at 
Gitmo had commenced in January 2002 with little infrastructure 
in place when the first detainees arrived. Upon assuming 
command of JTF Gitmo, General Miller became responsible for a 
multitude of tasks that demanded his immediate attention: 
merging the two task forces into the one task force that would 
have a common operating system for both the interrogation 
element and the detention element, managing the construction of 
new facilities, the manning, equipping, training, and 
organizing of the force, developing standard operating 
procedures for and improving the cooperation between inter-
agency interrogations, and also, last but not least, improving 
the quality of life for the military personnel of JTF Gitmo.
    Now, let me go on to the next recommendation, 
Recommendation 22, which has to deal with the communication of 
a threat. My reason for modifying Recommendation 22 is that 
further investigation by the NCIS----
    Chairman Warner. Before we leave Miller now, your decision 
in effect reverses General Schmidt's finding, but your decision 
is now to be reviewed by the Inspector General (IG) of the 
Department of the Army. That should be put in the record at 
this point.
    General Craddock. That is correct, Senator. The requirement 
I have under Army regulations, the Army requirement actually, 
is that any allegation of wrongdoing, founded or unfounded, 
must be communicated to the IG of the Department of the Army 
for his review and decision as appropriate.
    Chairman Warner. Will he review this de novo, in other 
words go from the ground up, look at it all?
    General Craddock. We send him the report and my forwarding 
letter for his review.
    Chairman Warner. Then it goes to the Secretary of the Army, 
I presume?
    General Craddock. Mr. Chairman, what he does with it, I do 
not know his procedures.
    Chairman Warner. All right.
    Senator Levin. Does he have the power to reverse your 
reversal of those two recommendations?
    General Craddock. I do not know.
    Chairman Warner. I think he does.
    Senator Levin. General Craddock, your answer is that you do 
not know if he has that power?
    General Craddock. That is correct.
    Senator Levin. I think we ought to ask our counsel.
    Chairman Warner. We will clarify that.
    General Craddock. Now, with regard to the communication of 
the threat, my reason for modifying Recommendation 22 is that 
further investigation by NCIS may discover evidence in 
mitigation and extenuation that should be considered in 
determining whether disciplinary action is appropriate for the 
interrogator.
    Of the recommendations I approved, Recommendations 23 to 27 
are not within my authority to implement. Therefore, I 
forwarded those to the Deputy Assistant Secretary of Defense 
for Detainee Affairs for review and action as he deems 
appropriate.
    This concludes my statement, Mr. Chairman. Thank you for 
the opportunity and we stand ready to answer your questions.
    Chairman Warner. Thank you very much.
    First I want to commend you, General Schmidt, working with 
General Furlow, for what appears to be a very comprehensive and 
thorough piece of work by you and your team. We had to move 
swiftly on this. I had the opportunity at length to visit with 
General Craddock last night and to, in the intervening hours, 
go through much of the report. But it is a complicated subject.
    My first question I will put to General Craddock, but I 
think in all likelihood you will want to refer it to your two 
officers. That is, your assessment of the working relationship 
between those in the Bureau--there were some 400 or 500 Bureau 
people?
    General Schmidt. Sir, there were 493 in the e-mail survey, 
and obviously there is more since.
    Chairman Warner. Now, my understanding, they came for 30-
day intervals, the individuals; is that about right?
    General Schmidt. I think 30 or 45 days was the standard.
    Chairman Warner. Very brief intervals, they were there. 
Then there was a complete recycling, one after another. That is 
in sharp contrast to the military individual or the civilians 
who were there for at least a year in many instances; am I 
correct on that?
    General Craddock. Initially 6 months and then it turned 
into a year rotation, yes, Mr. Chairman.
    Chairman Warner. Now, the interrogation at Gitmo it is 
clear was producing a lot of very important intelligence that 
helped our operating forces, primarily in Iraq and Afghanistan. 
That is thoroughly documented, General Craddock?
    General Craddock. Mr. Chairman, in a closed session we will 
provide you information on the intelligence gained, yes, sir.
    Chairman Warner. But my assessment I think in the open can 
be that it was a very important contribution----
    General Craddock. Yes, sir.
    Chairman Warner.--to save lives, be it Americans or 
coalition forces, fighting.
    General Craddock. We believe so.
    Chairman Warner. The findings by and large, with the 
several exceptions that you have pointed out, indicate that the 
interrogating procedures were conducted in accordance with 
directives from the SECDEF, even though from time to time they 
were changed.
    Now, the Bureau people were looking at this same set of 
facts coming from these detainees and the procedures from the 
perspective of future criminal operations in the United States; 
am I correct on that?
    General Furlow. Mr. Chairman, that is correct. The FBI 
agent went down there with the idea of conducting a 
prosecutable case in a court of law.
    Chairman Warner. The standards by which they collect 
evidence for prosecutions, presumably for Federal courts as 
opposed to State, were quite different than the standards 
promulgated by the SECDEF; am I correct in that observation?
    General Furlow. Yes, sir, that is correct.
    Chairman Warner. To put it in a simple way, that seems to 
me could put sand in the gearbox and cause some difficulty in 
their pursuing their mission and the military pursuing their 
mission. Am I correct in that, General?
    General Schmidt. That is correct, sir.
    Chairman Warner. Now, when you conducted your 
investigation, to what extent did the Bureau have the 
opportunity to look at your findings preliminary and provide 
some rebuttal?
    General Schmidt. Sir, when we started the investigation, 
they were aware that the entire focus of my investigation, 
General Furlow's investigation, was centered around their 
alleged perception or otherwise of aggressive tactics for 
interrogation that they would violate their own policy. They 
gave us access----
    Chairman Warner. So in other words, SECDEF's directives 
were inconsistent, maybe not in violation, but inconsistent 
with their policies; is that correct?
    General Schmidt. The goals were different. The goals for 
evidence----
    Chairman Warner. Yes, I understand the goals were 
different.
    General Schmidt.--and intelligence to be used drove us that 
way. So there were different rules. The agents on the ground 
obviously wanted to develop rapport and develop evidence 
through non-coercive means because it is no longer admissible 
in a court of law. We needed actionable intelligence on the DOD 
side. One, time was an element. Two, the coercion piece was not 
an element that would deter that.
    Chairman Warner. Now clearly that gave rise to some of the 
agents providing the, was it 28 e-mails, is that the number 
that raised allegations?
    General Furlow. Sir, there was 26.
    Chairman Warner. Twenty-six e-mails, which gave rise to the 
need for General Craddock to convene this thing.
    Now, to what extent did the writers of those e-mails have 
an understanding with what the military mission was vice what 
the Bureau mission was? Presumably they understood what the 
Bureau mission was and the constraints, as you say, imposed by 
our doctrine of Federal law and criminal procedure. But did 
they have any appreciation for what you were trying to do in 
accordance with SECDEF?
    General Schmidt. Sir, I will turn this over to General 
Furlow, but obviously five of the other allegations were 
unsubstantiated because they did not have an understanding. 
What they saw and what they understood to be abusive did not 
correlate.
    Chairman Warner. General Furlow, do you want to make a 
comment?
    General Furlow. Yes, sir, I will make a comment. I would 
like to make a comment that the Bureau was very cooperative in 
working with us on this investigation, and the goals obviously, 
as you mentioned previously, were different. Now, the initial 
conversation with some of the writers of the electronic 
communications were from a standpoint of providing a 
prosecution. Later on, late 2002, early 2003, there was more of 
an understanding and communication between the DOD 
representatives and the Bureau individuals about what each 
individual's part of the effort at Gitmo was.
    Chairman Warner. Now, my understanding is that the Director 
of the Bureau has this whole chapter or problem under 
investigation. Is that correct, General Craddock?
    General Craddock. Mr. Chairman, I know that the Department 
of Justice Inspector General (DOJ IG) requested to visit Gitmo 
to interview their people there and some of the DOD people. We 
supported that. They also did some interviewing of detainees. 
Beyond that, I am not aware of where that investigation is 
going nor the intent or purpose. But what we were told was it 
was to validate FBI processes and reporting procedures.
    Chairman Warner. Were there any instances in the 
performance of your mission pursuant to General Craddock's 
order in which you felt that the Bureau was not being 
cooperative? In other words, did each of the persons you wished 
to interview agree to do it and did perform an interview?
    General Schmidt. When I came on they were completely 
cooperative, they were collaborative. The DOJ, they were just 
beginning their investigation as we were ending ours. General 
Furlow had constant contact with the FBI agents and they also 
worked with the FBI to have access to all of those agents who 
had allegations that they had seen abuse.
    General Furlow?
    General Furlow. Yes, sir, we worked hand in hand with the 
FBI. There were some agents that were just not available based 
on the fact that they were deployed overseas and on projects 
and such like that. We were able to visit with the FBI, through 
the FBI legal, where we were allowed to run the lead with their 
representatives from the DOJ IG in attendance. We have been in 
communication with their investigation to ensure that they have 
the information that we were able to obtain to assist them in 
their investigation.
    Chairman Warner. Now, the two unsubstantiated e-mails, did 
you interview both of the writers of those e-mails?
    General Furlow. Sir, the two unsubstantiated allegations, 
we actually----
    Chairman Warner. In other words, to me--those e-mails were 
examined by you and you could not find any facts to 
substantiate the allegations in those two FBI e-mails, is that 
what that means?
    General Furlow. Yes, sir. In addition to that, what we did 
is we queried each one of the FBI agents we visited with, with 
all of the eight or nine allegations that I was initially 
chartered with.
    Chairman Warner. Correct. But now, the two unsubstantiated, 
were those people face-to-face interviewed by you or your 
staff?
    General Furlow. Sir, there was a few--one individual agent 
was not available who wrote one of the electronic 
communications. We were not able to get a hold of her. She was 
not available. But we were able to----
    Chairman Warner. What does ``not available'' mean? She is 
locatable somewhere in the world, is she not?
    General Furlow. Yes, sir. She was on a project.
    Chairman Warner. Whatever. I do not want to probe behind 
what may be classified, but presumably they are detailed to 
domestic stations here in the continental United States, I 
suppose, maybe overseas.
    General Furlow. Yes, sir, there is a considerable number of 
Bureau folks deployed overseas.
    Chairman Warner. I understand that. But I mean, where was 
this individual physically?
    General Furlow. Could I defer that? I am not sure where the 
limits and the line is with the FBI information. If I could 
defer that to the classified side.
    Chairman Warner. Let us put it this way. It is so important 
that we determine how these reports were put together, given 
that the facts did not exist in your judgment to support them.
    General Furlow. Yes, sir.
    Chairman Warner. It seems to me that we should have 
delegated someone to go somewhere and face-to-face interrogate 
that agent. Was that procedure considered?
    General Furlow. Yes, sir, it was considered, but it was not 
done. But in the context of those allegations, through review 
of the methodology, reviewing the logs, interviewing other FBI 
agents and DOD personnel, we were not able to substantiate 
those two allegations.
    Chairman Warner. It has been my judgment--and I have some 
experience dealing with this as an assistant U.S. attorney at 
one time--you go find the person, wherever that person is, and 
face-to-face query them. But that was not done for some reason, 
is that correct?
    General Furlow. With one individual, that is correct, sir.
    Chairman Warner. But that was an important individual, am I 
not correct?
    General Furlow. Yes, sir.
    Chairman Warner. Is it possible, General Craddock, that 
there could be a follow-up to fill that gap?
    General Craddock. Yes, Mr. Chairman. We can pursue that.
    Chairman Warner. I thank you.
    Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    General Craddock, you say there are basically three 
different types of activity here you have distinguished between 
relative to the Miller recommendation. One was torture, one is 
inhumane treatment, and the other one is degrading and abusive 
treatment. I believe maybe General Schmidt made those 
distinctions.
    When it came to the recommendation relative to General 
Miller, you said that there was no U.S. policy that was 
violated and that was the reason for your decision. Is 
degrading or abusive treatment consistent with U.S. policy?
    General Craddock. Senator, in the context of the 
interrogation techniques authorized at the broad level, FM 34-
52 and the directives from the Office of the SECDEF, those 
techniques were very general in nature. Now, what happens is 
then at JTF Gitmo, the interrogation team looks at, for 
example, pride and ego down or futility, as was the example 
used by General Schmidt, and they develop specific 
applications, if you will, of how to then use under that large 
interrogation technique specific applications which will cause 
discomfort to the detainee, which will break concentration, 
which will take that detainee out of his trained resistance 
techniques.
    They may be, as General Schmidt has said, have a cumulative 
effect of being abusive or degrading.
    Senator Levin. You said ``may be.'' Did you disagree with 
General Schmidt's conclusion that there were degrading and 
abusive techniques used here?
    General Craddock. His conclusion was cumulative effects.
    Senator Levin. Did you disagree?
    General Craddock. I do not know because the report--my 
investigators did not give me the point at which that would 
have occurred. Was it a combination of techniques occurring at 
the same time or was it a combination of one technique over 
time, or both? I do not know. That is the reason----
    Senator Levin. Excuse me. You do not know from their 
report?
    General Craddock. Correct.
    Senator Levin. You do not agree or disagree with their 
conclusion that the cumulative effect was degrading and abusive 
techniques?
    General Craddock. It may well be the case, but their report 
did not prove it conclusively to me.
    Senator Levin. If it were the case, would you agree that 
that would violate U.S. policy?
    General Craddock. No.
    Senator Levin. Well then, it makes no difference whether or 
not their report is clear on that point or not, because even if 
it is clear on that point, which it is in my judgment, it still 
in your judgment----
    General Craddock. Senator, repeat your question?
    Senator Levin. Yes.
    General Craddock. Would I do what now?
    Senator Levin. If you agreed with their conclusion that the 
cumulative effect of these actions was that there was, in their 
words, ``degrading and abusive treatment'' of detainees, would 
you agree that that would violate U.S. policy?
    General Craddock. The policy as written, I would disagree 
that it would not violate.
    Senator Levin. No, no. There is a double negative.
    General Craddock. That is correct----
    Senator Levin. In your judgment, if the cumulative effect 
of treatment of detainees resulted in degrading and abusive 
treatment, would that violate U.S. policy? Can you give us a 
yes, a no, or you do not know?
    General Craddock. For this specific detainee, which is the 
only one I can address since it is the only one in question----
    Senator Levin. Well, there are two here.
    General Craddock.--with regard to those techniques----
    Senator Levin. There are two here.
    General Craddock. This is the only one, sir, with these 
techniques that we addressed. Because of the situation--let us 
take a step back----
    Senator Levin. I do not want to disagree with you. I just 
want to find out what your answer is. Do you disagree with 
their conclusion that, relative to that detainee, the 
cumulative effect of the behavior of the interrogators was 
degrading and abusive treatment? Do you disagree with that 
conclusion?
    General Craddock. I do not know.
    Senator Levin. Okay.
    General Craddock. As I stated earlier, because they did not 
give me the specificity.
    Senator Levin. Next question, if you agreed with the 
conclusion, would you then believe that that would violate U.S. 
policy?
    General Craddock. We are dealing in a hypothetical?
    Senator Levin. Yes.
    General Craddock. I do not want to do that. We are dealing 
in specifics here.
    Senator Levin. Okay.
    General Craddock. I think that is why, sir, as I tried to 
state--and let me just--that is why I agreed to the 
recommendation. This needs some further study to determine 
where points are, as referenced in the report, and where lines 
may be crossed.
    Senator Levin. General Schmidt, let me ask you a question. 
By the way, let me just tell you, General Craddock, I would 
have hoped that you could have given us a good, clear ``yes,'' 
that if you concluded, if you concluded, that there was 
degrading and abusive treatment of a detainee, that that would 
violate U.S. policy. I would have hoped you would have given us 
a good, clear ``yes'' on that. But I will leave it at that.
    General Craddock. May I respond?
    Senator Levin. Sure, if you can leave me a little time.
    General Craddock. Senator, we have some definitional 
standards and we know what torture is and we know what cruelty 
is. ``Inhumane treatment'' is undefined, but defined at JTF 
Gitmo in the absence of anything else that is used, and it 
appears to be effective. Beyond that, this blurs. An intent--
the issue here is to what was the reason it might have been 
done. It was to produce an effect, to gain information, not for 
recreation.
    Senator Levin. I could not agree with you more on that.
    General Schmidt, this is for you. A May 10, 2004, e-mail 
released under a FOIA request describes how FBI concerns about 
aggressive DOD interrogation techniques were so serious that 
agents in Gitmo had guidance to stand clear when the techniques 
were used. The e-mail states that in weekly meetings of 
officials from the FBI and the DOJ's Criminal Division, ``We 
all agreed DOD tactics were going to be an issue in military 
commission cases.''
    Now, my question: Do you have an unredacted copy of the May 
10, 2004, e-mail?
    General Schmidt. Sir, I am familiar with the e-mail. I am 
not sure if we have an unredacted copy or not.
    Senator Levin. I would think you should have an unredacted 
copy of the e-mail. I think you ought to insist on it.
    General Schmidt. We will take that for the record and we 
will find out.
    [The information referred to follows:]

    I do not have an unredacted copy of the 10 May 2004 FBI e-mail 
discussing instructions to Gitmo interrogators. I have viewed a 
redacted copy of this same e-mail and feel confident that all of the 
FBI concerns have been addressed relative to the scope of this 
investigation.

    Senator Levin. If you do not, I think you ought to insist 
upon it.
    There was, finally, in this May 10, 2004, document a 
reference to an earlier electronic communication which was 
prepared by the FBI's behavioral analysis unit explaining the 
Bureau way of interrogation versus DOD's methodology. Now, a 
classified version of that EC--which was referred to in the May 
10, 2004, document, a classified version of that EC which is 
dated on May 30, 2003, has been provided to the Senate by the 
FBI. The classified May 30, 2003, EC contains a number of 
redactions, but also makes reference to a number of attachments 
to the May 30, 2003, EC.
    My question: Do you have an unredacted copy of the May 30, 
2003, electronic communication and do you have the attachments 
that are referred to?
    General Schmidt. Senator, we are not in possession of that. 
We are aware of that EC. We were made aware of it in the last 
few days. We were allowed to see and review, but not take 
possession of, that document by the FBI just 2 days ago.
    Senator Levin. Its attachments?
    General Schmidt. General Furlow, did you get to see the 
attachments?
    General Furlow. Yes, sir.
    Senator Levin. I would ask the chairman here that we ask 
that you make available to us in a classified setting, and that 
the FBI make available to us since you folks have seen them, 
that document plus its attachments, in a classified setting. So 
this is really a question I guess I will have to address to our 
chairman.
    Chairman Warner. We will take it under advisement.
    Senator Levin. Thank you. My time is up.
    Chairman Warner. But I believe we have to clarify the 
record. Your questions are very important.
    In the course of your examination of the e-mails, did you 
see all of the unredacted that you so desired?
    General Schmidt. General Furlow did that part of the 
investigation.
    General Furlow. Yes, sir. Going back to Senator Levin's 
comment earlier, sir, we reviewed those yesterday at FBI 
headquarters. We were able to review them and read them, but we 
were not allowed to take possession of those documents. We were 
allowed to take notes, but we do not have those documents in 
our possession.
    Senator Levin. Your report was written before you saw those 
documents?
    General Furlow. Yes, sir.
    General Schmidt. Sir, our judgment after General Furlow 
read that, it was determined it was not relevant to the focus 
of our investigation on abuse.
    Senator Levin. To this, okay.
    General Schmidt. This particular focus, sir.
    Senator Levin. That is fine. If we could have a copy of 
those documents in our classified session, it would be helpful.
    General Craddock. Senator, we do not have the documents.
    Chairman Warner. No, I understand.
    Why did you delay until 24 hours before this hearing to 
look at such an important body of evidentiary material?
    General Furlow. Sir, there was one particular document that 
came up we were able to obtain a copy. There was a reference to 
this document dated May 30, 2003, and that was a specific 
document that I had not seen before. The other referenced 
documentation that I reviewed yesterday, the attachments and 
such, were made privileged to us previous to that. What I did 
is I went through and reviewed those to ensure that we had a 
completeness.
    But the only document that we had not seen previous was the 
May 30, 2003.
    Senator Levin. So the attachments had been made available 
to you?
    General Furlow. Yes, sir.
    Senator Levin. Okay, good.
    Chairman Warner. I thank you.
    Senator McCain.
    Senator McCain. General Craddock, as a matter of curiosity, 
you mentioned one of the reasons why you overruled General 
Schmidt's recommendation is General Miller was an artilleryman 
and had absolutely no experience in the handling of prisoners. 
Why, if this is such a valuable and important operation, would 
we appoint somebody in charge who had no experience?
    General Craddock. Senator, as I recall I said experience in 
detention operations at the strategic level. I did not make 
that decision. General Miller is an aggressive commander. He is 
known to be able to work through problems and bring----
    Senator McCain. So we could not find anybody who had 
background and experience in this kind of work to be in charge?
    General Craddock. Sir, I cannot answer that. I was not 
privy to the selection process.
    Senator McCain. The prisoners at Gitmo are those captured 
in Afghanistan, is that correct?
    General Craddock. That is correct.
    Senator McCain. What is the status of those prisoners? What 
is the official status of those prisoners?
    General Craddock. As determined by the Combatant Status 
Review Tribunals, enemy combatants or no longer enemy 
combatants.
    Senator McCain. Either one?
    General Craddock. The ones that are declared no longer 
enemy combatants then will either be returned to country of 
origin or released. That is an ongoing process, Senator.
    Senator McCain. I was asking the status of those who are 
held prisoner today in Gitmo. What is their official status?
    General Craddock. I answered that question, sir.
    Senator McCain. Which is?
    General Craddock. They are either enemy combatants as 
determined by the Combatant Status Review Tribunal and 
validated through an annual review board or no longer enemy 
combatants and therefore they will be processed for return or 
release.
    Senator McCain. As enemy combatants, what protections and 
what international agreements that we are signatories to are 
they entitled to?
    General Craddock. Our policy is they will be treated 
humanely and, where military necessity allows, consistent with 
the principles of the Geneva Conventions.
    Senator McCain. Say that again?
    General Craddock. They will be treated humanely and, where 
military necessity permits, consistent with the principles of 
Geneva Conventions.
    Senator McCain. Where military necessity permits, they are 
eligible for----
    General Craddock. Consistent with military necessity----
    Senator McCain.--Geneva Conventions? Who decides where 
military--what was your word?--military necessity permits?
    General Craddock. Consistent with military necessity----
    Senator McCain. Who decides what ``military necessity'' is?
    General Craddock. At this point, sir, the JTF commander, 
JTF Gitmo commander.
    Senator McCain. So when we interrogate a prisoner, we say 
you may be eligible for protections under the Geneva 
Conventions, but only where military necessity permits?
    General Craddock. I did not indicate it was an 
interrogation issue. The point at which----
    Senator McCain. We are talking about interrogation at this 
hearing, General.
    General Craddock. I understand that, Senator. But there is 
also detainee operations, which is the security aspect of that.
    Senator McCain. Let us focus our attention on the 
interrogation techniques, which are the subject of this 
hearing.
    General Craddock. Okay.
    Senator McCain. Who decides whether they have the 
protection of the Geneva Conventions for the treatment of 
prisoners of war or not?
    General Craddock. That is a presidential decision. The 
President has said that they do not have the protection of the 
Geneva Conventions.
    Senator McCain. Even though they are classified as enemy 
combatants?
    General Craddock. Sir, the President has said they do not 
have the protection of the Geneva Conventions.
    Senator McCain. These are not al Qaeda. These are people 
who are captured in combat in Afghanistan; is that right?
    General Craddock. Sir, they are Taliban and al Qaeda.
    Senator McCain. Okay, and they were part of the Taliban 
government in Afghanistan, right?
    General Craddock. They were Taliban. Whether it was a 
Taliban government, I won't judge. They were Taliban.
    Senator McCain. Okay. So basically they have no protections 
unless military necessity permits it; is that correct?
    General Craddock. They will be treated humanely.
    Senator McCain. Well, tell me this. At least for a period 
of time--is it still permissible to use a wet towel and 
dripping water to induce the misperception of suffocation?
    General Craddock. I am sorry, Senator. I missed the 
question. I was given a note here.
    Senator McCain. I have the JTF-170 counter-resistance 
techniques, requested 11 October; SECDEF approved 2 December, 
Category 2 and Category 3 rescinded 15 January. Is it still 
permissible to use a wet towel and dripping water to induce the 
misperception of suffocation?
    General Craddock. Sir, the only principles--the only 
interrogation techniques authorized are in the 16 April letter. 
I do not know if that letter--the date of that letter, if that 
was the 2 December, tier 1, 2, and 1 of tier 3. Tier 2 in the 
one individual technique and tier 3 were rescinded on 15 
January.
    Senator McCain. All of them?
    General Craddock. All tier 2 and all of tier 3. Only one 
was ever authorized, tier 3.
    General Schmidt. Senator McCain, if I could answer that.
    Senator McCain. Yes, go ahead.
    General Schmidt. On that list, the use of the wet towel and 
dripping water to induce the misperception of suffocation was 
one of the techniques requested by the JTF in their laundry 
list given up. It was never approved. It has never been a 
technique approved. The SECDEF declined to even consider that.
    General Craddock. That was tier 3?
    General Schmidt. It was a category request, but it was 
never approved.
    Senator McCain. Are dogs still used in interrogations?
    General Craddock. Dogs are not used in interrogations.
    Senator McCain. They are not?
    General Craddock. No, sir.
    Senator McCain. They have been?
    General Craddock. I believe the report, as indicated, found 
two occasions where dogs were used.
    Senator McCain. General Schmidt, there is a--well, let me 
just tell you the problem, General Craddock. There are no 
specific guidelines that I can tell from your response for 
specific rules for treatment of ``enemy combatants'' and there 
needs to be. Maybe that is not in your pay grade, but the 
clause ``where military necessity permits'' is as wide open as 
anything that I have ever heard.
    This is what leads to recommendations such as were agreed 
to by the SECDEF and then had to be rescinded. I also happen to 
know that the then-acting on Active-Duty JAGs did not agree 
with these guidelines that were approved by the Secretary of 
Defense for a short period of time.
    General Craddock. Sir, may I clarify?
    Senator McCain. We need specific rules and specific 
guidelines for the treatment of ``enemy combatant,'' as these 
in Gitmo are. Now, they may be al Qaeda, they may be Taliban, 
they may be the worst people in the world, and I am sure that 
some of them are. But there are certain basic rules and 
international agreements that the United States has agreed to 
that we will observe.
    Go ahead and please respond.
    General Craddock. Very quickly, let me clarify. The 
President's policy: ``As a matter of policy the United States 
Armed Forces shall continue to treat detainees humanely and, to 
the extent appropriate and consistent with military necessity, 
in a manner consistent with the principles of Geneva.''
    Senator McCain. When you say you adhere to some principles, 
lots of us adhere to principles and practices that vary rather 
dramatically. As I say, that is a legalistic statement and one 
that is ridden with loopholes. It is clear to me that one of 
the reasons why we are sitting here today was, at least at the 
working level, that the interrogators did not understand, at 
least some of them did not understand, that ``humane 
treatment'' might be in the eye of the beholder.
    General Schmidt, did you draw that conclusion from your 
investigation?
    General Schmidt. Sir, the lines were hard to define. Humane 
treatment, torture, I felt were the clear lines. So did the 
JTF. Anything else beyond that was fairly vague, so it fell to 
our judgment. Again, this was not a criminal investigation. It 
was one where I was asked to use my judgment. Detainee abuse 
was the center of the investigation. I felt there were abusive 
and degrading things done to this particular detainee and that 
is why I made that judgment.
    Senator McCain. General Furlow, the Army FM is very 
specific, is it not, on the treatment of prisoners?
    General Furlow. Yes, sir, 34-52 is specific. There is a 
chart on 1-10.
    Senator McCain. Why would we not just say, the Army FM 
applies here, with the exception if the President of the United 
States decided that this was--that the Army FM could be 
exceeded in outstanding examples? What is wrong with just using 
the Army FM, which is what we have used in previous conflicts?
    General Furlow. Yes, sir, that is essentially what was 
done. The initial set-up at Gitmo, the 34-52 was the authority, 
and the commander on the ground determined that it did not meet 
his requirement and requested more aggressive interrogation 
techniques and requested through memo form, in written form, 
and that is where the December 2 memo comes from that was later 
rescinded on the 15th of January, and then it followed the next 
authority process, sir.
    Senator McCain. I might add that those guidelines that were 
approved by SECDEF were not agreed to by the uniformed judge 
advocate generals because of their concern that we would get 
into this kind of morass that I find us in now. It is not clear 
to the members of--it is not clear to this member of this 
committee, and I do not think it is clear to the American 
people, exactly and specifically what the guidelines are, which 
then understandably would lead to some abuses of prisoners.
    I hold no brief for the prisoners. I do hold a brief for 
the reputation of the United States of America as to adhering 
to certain standards of treatment of people no matter how evil 
or terrible they may be. I am afraid, General Craddock, that 
you have not--this hearing has not cleared that up, at least to 
my satisfaction.
    I thank you, Mr. Chairman.
    Do you want to respond to that, General Craddock?
    General Craddock. Sir, I understand the point you have 
made.
    Senator McCain. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator McCain.
    That request up to higher authority, do we have documents 
that reflect how that was put to the higher authority? If not, 
we would like to have that made a part of the record.
    General Furlow. Yes, sir. We made note of that earlier, 
that that is part of the fact chain that we are providing to 
you in documentation with the 2 December memo.
    Chairman Warner. Because it is an important line of 
questioning and we have really got to probe this very 
carefully.
    General Furlow. Yes, sir.
    Chairman Warner. Senator Reed.
    Senator Reed. Thank you, Mr. Chairman.
    General Schmidt, at page 12, I just want to try to clarify 
something in my own mind. You cite FM 34-52. You take out the 
general categories, you go down, and then you give an 
application at Gitmo, which is mother and sister were whores, 
dancing with male interrogators, homosexuality allegations, et 
cetera.
    First point: That sounds remarkably similar to what 
occurred at Abu Ghraib, people being led around in chains, 
people being forced to wear lingerie. Perhaps a coincidence, 
perhaps not. But to clarify this, is it your assertion that FM 
34-52, which was written in the context of the Geneva 
Conventions, would allow this type of behavior any place other 
than Gitmo?
    General Schmidt. Under the Geneva Conventions, sexual 
humiliation would not be appropriate.
    Senator Reed. So these references to 34-52, which are 
written in the context of the Geneva Conventions, in fact cite 
the Geneva Conventions, are not at all applicable in your view 
to Gitmo?
    General Schmidt. The enemy combatants in this context are 
also not applicable to the Geneva Conventions.
    Senator Reed. So the confusion I think here is that there 
are standards which we have to apply under the Geneva 
Conventions, which is in Iraq particularly, but the answer here 
was that we were operating essentially with just the direction 
of the SECDEF and whatever improvisations could be made down 
there at Gitmo. Is that fair?
    General Schmidt. Senator, what would be fair is there are 
authorized techniques and the applications to someone with a 
status that was not protected by the Geneva Conventions, 
although he had to maintain humane treatment, were taken fairly 
liberally.
    Senator Reed. Let's turn to ISN-063, the 20th hijacker, 
probably the most infamous, notorious prisoner down there. What 
approvals were necessary from the DOD to conduct this 
interrogation of ISN-063?
    General Schmidt. The approval process was one where the 
request to interrogate him was done by the JTF. Those 
procedures that came down, there was a considerable amount of 
debate, conferencing, meetings, that sort of thing. Then there 
was an offering of how many might be suitable, and in the end 
the SECDEF chose a lesser number and promulgated those down in 
the 2 December.
    Senator Reed. But let me--I am talking specifically about 
this one prisoner.
    General Schmidt. He was the subject of the request.
    Senator Reed. So we have with respect to this one prisoner 
an ongoing dialogue between General Miller, authorities in the 
DOD, including the SECDEF, about specific techniques that were 
going to be used, specific parameters for the investigation; is 
that correct?
    General Schmidt. To our knowledge, there was a considerable 
amount of communication up and down the chain. That was not the 
subject of our investigation.
    Senator Reed. But you are aware of numerous communications 
between General Miller and Secretary Rumsfeld and other 
civilians in the DOD specifically about this one prisoner?
    General Schmidt. We are aware there was communication.
    General Craddock. Let me set the record straight here if I 
could, Senator. This special interrogation proposal was 
developed prior to General Miller coming on board. It was done 
by General Dunleavy, and the preparation was weeks before 
General Miller showed up.
    Senator Reed. When did the interrogations take place of 
ISN-063? Throughout General Miller's tenure? How many months?
    General Schmidt. Prior to his arrival, and then he arrived 
while it was already ongoing. He started on 23 November.
    Senator Reed. Did you look at General Miller's e-mails in 
your investigation?
    General Schmidt. We looked at all his promulgated guidance.
    Senator Reed. But you did not look at any of his e-mails?
    General Schmidt. Did not see--now, correct me.
    General Furlow. Sir, let me handle that one.
    Sir, we went back to the server and the answer is, no, we 
did not look at his e-mails. We attempted to look at it. The 
server did not contain the e-mails in its memory past about a 
year, 18 months. So we were able to get a few memos, but they 
were not applicable to this particular case.
    Senator Reed. So you could not recover from any sources the 
communications he had back and forth about ISN-063?
    General Furlow. Not in the e-mail format, sir.
    Senator Reed. General Craddock, I think what you have done 
is taken an investigation which was sincere and detailed and 
turned it into a justification and exoneration for a senior 
officer and found a junior officer to recommend for punishment, 
which is consistent with all these other investigations. 
General officers apparently are fine, they were overstressed, 
they were distracted, they did not have the background; but 
naval Reserve lieutenant commanders are now looking at 
punishment.
    It seems to me to be ludicrous. This prisoner was not 
someone lost in the shuffle. He is probably the most 
significant prisoner in Gitmo. He was the subject, even though 
it was with General Dunleavy, of debate with the SECDEF about 
precisely what should be done. For you to exonerate General 
Miller by simply saying he knew how long it was but he did not 
have to pay attention to details I think is unsubstantiated by 
any evidence. In fact, the evidence I think would compel 
following up with General Schmidt's recommendation.
    So I just once again am disappointed in an investigation 
that has turned into something less than accountability, and it 
is another, again, justification for I think terrible mistakes. 
I associate myself with Senator McCain's remarks. We are in 
this muddle because no one has taken responsibility at a senior 
level for what has been done.
    Thank you.
    Chairman Warner. Thank you, Senator Reed.
    General Craddock, I want to give you and the other 
witnesses the opportunity to fully reply to the Senator's 
observations.
    General Craddock. Thank you, Mr. Chairman. My response is I 
appreciate the Senator's comments. I do not agree, obviously. I 
looked at this from the perspective of someone with 33 years 
plus experience trying to put my experience, what I have 
learned, into that situation, as I always do when I have to 
make judgments on admonishment or reprimanding or punishing 
subordinates or others I am judged to do so. I looked at that, 
and the difference between my investigators and myself 
essentially is the scope of supervision necessary. I looked at 
the fact that he placed trust and confidence in his 
subordinates, and those subordinates I think repaid that trust 
and confidence, because there was no crossing of the line, if 
you will, violating the law or the policies as they were 
provided.
    I think that we have to understand, this notion of an 
interrogation technique as written in 34-52 is a broad level, 
as General Schmidt discussed, and there are different 
categories. They then become translated into manifestations, 
into activity in their application. I think that is where 
reasonable people will differ in their expectations of what 
applications are used.
    We know, based on this manual [indicating], the al Qaeda 
training manual, we know how they prepare resistance 
techniques. If we use interrogation techniques that they are 
prepared for, they will not work. So the intent there is to get 
into their space, cause them discomfort, to create a situation 
where they start to talk and we gain information. That is where 
the creativity of the interrogators, through proper 
authorities, as was in place and still is, is applied.
    The other fact is this was one individual. It is not 
applied universally across the entire detainee population.
    Thank you, Mr. Chairman.
    Senator Reed. Mr. Chairman?
    Chairman Warner. Yes, Senator Reed.
    Senator Reed. Mr. Chairman, I ask General Craddock: Did you 
read General Schmidt's entire file?
    General Craddock. His report?
    Senator Reed. His report.
    General Craddock. Yes, sir.
    Senator Reed. The statements?
    General Craddock. Yes, sir, I read every attachment.
    Chairman Warner. As a matter of fact, you told me you read 
it twice last night.
    Senator Reed. Your conclusion was, as I believe you said, 
there is not enough detail for you to substantiate the point at 
which this cumulative effect was contrary to policy?
    General Craddock. Contrary to policy or crosses the line to 
something else. I do not know where it is. I asked the 
question, Senator, of my investigators: I am unsure of where 
you say the cumulative effect. Is it a multiple application 
simultaneously of different techniques? Is it one technique 
over time? Where is the most egregious? I do not know, and that 
is the basis of my approval of his recommendation.
    Senator Reed. General----
    Chairman Warner. Senator Reed, I have a problem here.
    Senator Reed. --the line is where you draw it, and you did 
not draw it.
    Chairman Warner. Thank you very much. I want to make sure 
that the other flag officers have had a full opportunity to 
reply.
    Did you wish to add anything, General Schmidt?
    General Schmidt. No, sir. I respect General Craddock's 
opinion.
    Chairman Warner. General Furlow?
    General Furlow. No, sir.
    Chairman Warner. Fine.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    Let me give you a different Senator's observations. 
Sometimes we get bogged down in all the detail and we forget 
about the overall picture, the big picture. I am shocked when I 
found only yesterday from the report that, after 3 years and 
24,000 interrogations, only 3 acts of violation of the approved 
interrogation techniques authorized by FM 34-52 and DOD 
guidelines.
    I just, I am shocked. It makes me wonder if we are really 
getting the most out of these detainees. It talked about one 
detainee having duct tape, another red ink, and all that stuff.
    When you contrast these interrogation techniques with those 
used in other countries, those fighting us, it is hard to 
understand why we are so wrapped up in this investigation. 
Further, you have determined in all but a couple of cases 
appropriate disciplinary action was taken and in all the cases 
no further incidents occurred.
    Add to that fact, most if not all of these incidents are at 
least a year old. I am very impressed with the way the 
military, the FBI, and other agencies have conducted 
themselves. This report shows me an incredible amount of 
restraint and discipline was present at Gitmo. Even the small 
infractions found were found by our own government, corrected, 
and now reported.
    We have nothing to be ashamed of. What other country, 
attacked as we were, would exercise the same degree of self-
criticism and restraint?
    Now, let me ask you, General Furlow--you have been getting 
off easy here. Just give me in your professional opinion, what 
is the worst substantiated incident of inappropriate use of 
interrogation techniques that you investigated, just the one?
    General Furlow. Sir, it is the--in my opinion, and that is 
solely my opinion--would be the one involving the classified 
detainee and that fact pattern.
    Senator Inhofe. Was appropriate disciplinary action taken 
in a timely manner in that case?
    General Furlow. Sir, that was with our report recommending 
being passed on to the naval investigation.
    Senator Inhofe. Okay. I would like to ask just for a very 
brief response on something that concerns me and I would like 
to have this from each of the witnesses. We have heard a lot 
about the FM 34-52. Are the DOD guidelines as currently 
published in that manual appropriate to allow interrogators to 
get valuable information, intelligence information, while not 
crossing the line from interrogation to abuse? Do you think 
they are too restrained? What is your opinion?
    General Craddock. Senator, I think because that manual was 
written for enemy prisoners of war we have a translation 
problem, in that enemy prisoners are to be treated in 
accordance with the Geneva Conventions; that does not apply. 
That is why the recommendation was made, and I affirmed it, 
that we need a further look here on this new phenomenon of 
enemy combatants. It is different and we are trying to use, I 
think, a manual that was written for one reason in another 
environment.
    Senator Inhofe. Thank you.
    General Schmidt?
    General Schmidt. Sir, I agree. It is critical that we come 
to grips with not hanging on a Cold War relic FM 34-52, which 
addressed an entirely different population. If we in fact are 
going to get intelligence to stay ahead of this type of threat, 
we need to understand what else we can do and still stay in our 
lane of humane treatment.
    Senator Inhofe. Do you agree, General Furlow?
    General Furlow. Sir, in echoing that, FM 34-52 was 
originally written in 1987, further updated and refined in 
1992, which is dealing with the Geneva question as well as an 
ordered battle enemy, not the enemy that we are facing 
currently. I am aware that Fort Huachuca is currently in a 
rewrite of the next 34-52 and it is in a draft form right now.
    Senator Inhofe. Thank you, General Furlow.
    Let me just give my own observations. I think you are 
entitled to that, to know that we are different Senators and we 
come from different perspectives. I did have occasion to be in 
the United States Army. I think that was one of the best things 
that ever happened to my life.
    But I would maintain that these detainees that we are 
talking about here, they are detainees, they have knowledge 
about terrorist cells and operations that is useful to the 
United States in understanding the actions of those who seek to 
do us harm, destroying our way of life. They are not to be 
coddled, not if we are to get access to the information that 
they possess and information that will help us defeat them.
    That is what this is all about. I think we are not talking 
about shoplifters here. We are talking--I think you stated it 
very well, General Craddock, when you said these are the worst 
of the worst. When you see some of the things that have been 
attributed to different people, talking about them, they are 
watching what we are saying.
    I am really concerned about this. I got a lot of criticism 
a little over a year ago when the Abu Ghraib first 
investigation was taking place and I looked at the fact that 
those in those cell blocks were the terrorists, were the 
murderers, were our enemies, and that I was more outraged by 
the outrage than I was by the treatment of those.
    This is just one Senator speaking. What other country would 
freely discuss interrogation techniques used against high-value 
intelligence detainees during a time of war, when suicide 
bombers are killing our fellow citizens? Why would we freely 
explain the limitations placed on our interrogators when we 
know that our enemy trains his terrorists in methods to defeat 
our interrogations? Today we are handing them new information 
on how to train future terrorists.
    What damage are we doing to our war effort by parading 
these relatively minor infractions before the press and the 
world again and again and again while our soldiers risk their 
lives daily and are given no mercy by the enemy? Our enemies 
exploit everything we do and everything we say. Al-Zarqawi the 
other day said to his followers, ``The Americans are living 
their worst days in Iraq now. Even Members of Congress have 
announced that the U.S. is losing the war in Iraq.''
    So I just say to you as one person, I applaud all three of 
you warriors. I applaud the discipline that has been 
demonstrated, the restraint that has been demonstrated by the 
interrogators. As one Senator, I admonish you and hope and pray 
that you do not unduly discipline our interrogators and impair 
their ability to save American lives. I thank all three of you 
for your service to America.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator Inhofe.
    I would like to go back to a very important point raised by 
Senator Inhofe, and you responded, but I think a little clarity 
is needed. The Army FM was drawn up against a background of 
what basically the United States had confronted in its previous 
wars, and that was state-sponsored aggression by nations which 
I think in many respects were subject to the Geneva 
Conventions. Now, as Senator Inhofe pointed out very 
dramatically, we are facing a totally different enemy, and as a 
consequence that FM has to be--well, remain in place should we 
have the misfortune of a state-sponsored conflict, but a 
separate manual has to be drawn up that addresses the 
complexity of the individuals that we are now capturing in Iraq 
or have and are continuing.
    Am I correct in that, General Craddock?
    General Craddock. Mr. Chairman, I would agree. It is a 
different set of conditions out there that we have to 
recognize. I think it would be helpful not to--we need to 
understand what has been done and use that as the building 
blocks to provide the way for a future look that will put us 
instead where we do not have these ambiguous situations, where 
commanders know what they can do, where lines are drawn. Yes, 
sir.
    Chairman Warner. I thank you very much. Several of us on 
this committee and I think probably all members of the 
committee are anxious that Congress has a role in this to try 
and determine how we best devise Federal law such that the men 
and women of the Armed Forces of the United States in the 
promulgation of their duties, be it on the battlefield, here, 
or in maintaining these detention facilities, have a clear 
understanding of what they can and cannot do.
    Did you wish to add something, General?
    General Craddock. Mr. Chairman, if I may, just to respond 
to your comment and Senator Inhofe. The fact is that probably 
in my judgment a lot of what has been discussed, a lot of what 
now is in the open press, and a lot of these applications of 
these interrogation techniques will feed change one to the 
Manchester document and a new chapter on interrogation 
resistance.
    Chairman Warner. You had better explain for the record 
``the Manchester document.''
    General Craddock. This is the al Qaeda training manual. It 
has two chapters here on detention and interrogation resistance 
techniques.
    Chairman Warner. Good. In case people are captured, how 
they should conduct themselves----
    General Craddock. Exactly.
    Chairman Warner. --to resist.
    General Craddock. They are trained using these techniques 
to resist interrogation.
    Chairman Warner. That is very clear. General Craddock and 
other witnesses, that is the value of this very important 
report which each of you have put together.
    Senator Clinton.
    Senator Clinton. Thank you, Mr. Chairman.
    I do not know where to begin. General Craddock, was it any 
member of the al Qaeda or Taliban who took pictures of these 
interrogation techniques and thereby revealed them to the 
world?
    General Craddock. I am not aware of al Qaeda or Taliban 
taking pictures of any interrogations at--oh, are you talking 
about for their manual?
    Senator Clinton. No. The discussion about how these 
interrogation techniques became public and who knew about them 
and what kind of information that might give to the prisoners 
to resist interrogation--in fact, these techniques became 
public because of actions and decisions made by members of the 
United States military, is that not correct?
    General Craddock. Not that I am aware of.
    Senator Clinton. Well, think of Abu Ghraib and think of the 
pictures that were published, that were taken by members of 
military police units and others inside that prison. Is that 
not what happened?
    General Craddock. Senator, those were not interrogations.
    Senator Clinton. No, but they led to the inquiry about 
interrogations, did they not?
    General Craddock. The timing on these techniques we talked 
about here today, the applications, the JTF Gitmo applications 
of the techniques, preceded those pictures.
    Senator Clinton. I guess my point, General, is that as we 
look at what our real goal here is, our goal is to be effective 
in interrogation in order to obtain information in order to 
deter attacks and in order to find out significant intelligence 
that will enable us to defeat this enemy. Is that not right?
    General Craddock. I agree.
    Senator Clinton. So I think it is important to put in the 
record that, at least for some of us, at least speaking for 
myself, my concern about this is driven primarily about how 
effective we are going to be. There is considerable evidence 
that the underlying techniques as well as the publicity about 
those techniques, which did not come from the enemy that we 
were interrogating but from people on the inside within our own 
military, is really what should be the focus here, that if 
these techniques were so effective why did we not get better 
information, why do we still have people who have been 
resistant, and especially at Gitmo, where they have been 
basically out of communication for 3 years?
    So I think that the intensity behind some of the 
questioning that you have received really begins from a 
fundamental disagreement about how we can be effective in 
pursuing the objectives that we all agree are the ones that are 
most important. At least from my perspective, I think that we 
made serious errors in authorizing and permitting a number of 
these techniques because they were not effective. In a free 
society, which we still are, it is very difficult to keep such 
behavior totally private. So at some point they were going to 
be revealed and disclosed, as the log about detainee 063 has 
been revealed and disclosed.
    So I guess, General, the questions that many of us have are 
really about the underlying attitude that has been taken toward 
the series of investigations that have been carried out and our 
belief that we have not done all we should to be as effective 
as we need to be, and the failure of accountability leads to 
ineffectiveness.
    General Schmidt and General Furlow, let me ask you. Your 
report indicates that several past interrogators at Gitmo 
declined to be interviewed and are currently in civilian 
status. How many of the FBI's allegations of aggressive 
interrogators involved former interrogators who declined to be 
interviewed?
    General Furlow. Ma'am, on the FBI side, none of the FBI 
agents refused to be interviewed. The reason why we were not 
able to talk to the individuals that had prior experience down 
there was that we do not have subpoena capability under the AR 
15-6, which was an administrative investigation. That is what 
limited it. If the person was still currently serving in the 
military, we could force them to visit with us. If they had 
served their time in Gitmo and returned to civilian life as a 
reservist, we were not able to subpoena them and force them to 
visit with us.
    Senator Clinton. How many people were you unable to 
subpoena or force to visit with you?
    General Furlow. Ma'am, we felt that there was not anybody 
that was material to this case.
    Senator Clinton. How many, though, were you unable to visit 
with or subpoena?
    General Furlow. I would say less than 10.
    Senator Clinton. General, is that your recollection?
    General Schmidt. Yes, ma'am. It was very, very few. Those 
that we could not get to that were relevant to our 
investigation was just a small amount. It principally involved 
the one that involved the death threat and a ruse that we found 
out about in interrogation. That was the one that concerned us 
the most.
    Senator Clinton. Was there not also a former interrogator 
who wrote a book about his experiences?
    General Schmidt. That is correct. You are referring to 
Sergeant Eric Saar. He was on his way to make a documentary. We 
asked if he had seen things, would he like to air that, would 
he like them investigated. He declined to be interviewed by us 
repeatedly.
    General Craddock. Senator, if I can set the record 
straight, he was not an interrogator. He was a translator-
linguist.
    Senator Clinton. As a translator-linguist he would have 
been perhaps accompanying interrogators and therefore a 
witness, would he not?
    General Craddock. He participated in one or two 
interrogations that we can establish as a linguist.
    Senator Clinton. General Craddock, I just hope that at some 
point we can both clear the air on these matters, because I 
think we need to, and whatever revisions need to be made in the 
FM or the Geneva Conventions, the United States ought to be a 
leader in that, and we ought to do so both because that is what 
we believe and the kind of people we are and also because we 
want to be effective.
    There is a lot at stake and it does not inspire confidence 
when we have all of these unanswered questions and when General 
Miller, who we know went from Gitmo to Iraq and was told to 
``Gitmo-ize'' Abu Ghraib, is basically the central figure in 
both of these investigations and yet once again is free of any 
accountability or any admonishment, it raises serious 
questions.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator.
    I would like to pick up on the Senator's questions with 
regard to 10 individuals which you could not reach for 
interview. At any time did you bring this inability to reach 
people to General Craddock? General Craddock, did you consider 
going to a higher level? In other words, we possibly could go 
to the Director of the FBI to facilitate the interviews.
    General Craddock. Mr. Chairman, it was not brought to my 
attention. This is the first I have heard of 10 people.
    Chairman Warner. It seems to me--and I will work with you--
we have to go back and revisit this what appears to be a gap 
and see whether or not we can facilitate filling that in.
    General Craddock. I understand.
    Chairman Warner. I thank you very much.
    Did you wish to say something, General Schmidt?
    General Schmidt. Senator Warner, the idea that we were 
unable to get to certain people, I just want to make sure we 
are clear that it was a small number. They were all civilians. 
None were FBI. We were almost always able to work around to 
other witnesses to events to corroborate that. This was an 
informal investigation to fact-find, not a criminal 
investigation. But when we found something that needed to be 
elevated, we did in the report, and that was the death threat.
    Chairman Warner. But I think the two unsubstantiated FBI e-
mails, I believe--you want to revisit your comment that they 
were all not FBI? There is an area which troubles me 
considerably.
    General Craddock. The one FBI agent, the one in question, 
we are very familiar with who she is. We made to my knowledge 
five or six attempts to get to her. She was not made available. 
We discussed that with DOJ, who is also running an 
investigation. They have her e-mails. They have not interviewed 
her at this time either. She has not been available----
    Chairman Warner. I will come back. I do not want to take 
the time of my colleague. But that has to be corrected and 
straightened.
    Senator Roberts.
    Senator Roberts. I do not have the time to ask you a lot of 
questions and I think a lot of questions have been asked and I 
think you have answered them to the best of your capability. 
But I do have an observation and a statement, much in the same 
fashion as Senator Inhofe.
    I want to tell you, General Craddock, I think you did the 
right thing by not citing General Miller. I do not agree with 
the assessment by other Senators here that he is a central 
figure in this case. I am quite sure that General Miller 
regrets not keeping a closer eye on those two interrogations, 
two interrogations out of 24,000 that we have had. He probably 
regrets not knowing what each person down there under his 
command had for lunch either.
    But certainly that lapse is far outweighed by the miracle 
that he worked in his time at Gitmo. I take that from staff 
members of the Intelligence Committee who were interrogators at 
the time, knew of the chaos, knew of the disorder. This 
officer, while his Military Occupational Specialty was not in 
keeping with perhaps that assignment, was able to be a 
problemsolver.
    Along with General Craddock, I visited Gitmo this past 
weekend. I got a thorough look. Nothing was denied to me, more 
especially as the chairman of the Intelligence Committee. I 
think that that system that General Miller, much maligned now 
that he is, brought order to chaos in his management of both 
the intelligence and the detention operations there--he 
pioneered the management and oversight systems that have made 
that detention facility an operation where--my view is in 
opposition to those who have already spoken--that we can be 
proud of under the circumstances with what we are gaining in 
intelligence and, more especially, the treatment of the 
detainees. They are not ``detainees''; they are terrorists and 
they are very bad people.
    Never, never before in history has any country faced with a 
barbaric terrorism implemented a policy of terrorist detention 
so unique, so unprecedented, and so humane, in my personal 
view.
    Let me review those numbers again. There were 26 
allegations of abuse that came from FBI personnel at Gitmo, 
nobody taking pictures. That was in Abu Ghraib and had nothing 
to do with interrogation. Of those nine incidents amounting to 
what could have been serious allegations, six of those turned 
out to be false allegations or incidents that were within the 
rules.
    So if I am correct, we ended up with two incidents along 
with one more that the investigators found along the way, to 
bring a grand total of three confirmed incidents. That is part 
of the 24,000 total interrogations that have been conducted at 
Gitmo. So out of 24,000 interrogations, 3 total incidents. My 
math, that makes for an incident rate of .000125.
    What field manual could be written to prevent incidents or 
an incident rate or a mistake in regards to 24,000 
interrogations that resulted in an incident rate of .000125? Is 
this what this has come down to, 3 misdemeanors out of 24,000 
interrogations, 3 misdemeanors that occurred 2 or 3 years ago, 
not today, not to practices that are being conducted today 
under your command and under the commander down there?
    Now, I am in no way condoning incidents that are described 
in this report. Nobody is saying that. But I do not think they 
are a matter of national press attention, which will probably 
be the case. They are unfortunate, not only because they are 
unworthy of our great Nation, but because they are not 
effective at getting reliable information. That is the point 
that Senator Clinton made. But you understand that and the 
commander understands that, and the young men and women that I 
visited with personally certainly understand that.
    Their motto on the back of their cover says ``Honor 
Bound.'' When you went through that facility, everybody saluted 
you and said ``Honor Bound,'' and you said ``Honor Bound'' back 
to them. Things have changed at Gitmo in result of all of this 
that we are talking about.
    I will tell you what this report says to me. It says that 
the three relatively minor incidents are not reflective of the 
vast majority of the important interrogations being conducted 
at Gitmo. I am talking about Gitmo as of today. It says that 
overall things are going well under very dangerous 
circumstances. I saw this for myself, the outstanding work our 
hardworking men and women are doing down there.
    I am getting into trouble because of the report that I 
issued back in Kansas, because I said: Food, yes, the detainees 
are getting a choice of 113 Muslim dishes. Our troops are not 
getting that kind of choice. On health care, I said the clinic 
and/or hospital that had to basically treat the wounds of these 
people who came in from Afghanistan--and we have taken down 80 
percent of the Taliban and also al Qaeda; these are the very 
bad people who are left and are terrorists and are still there. 
They have better health care and better facilities than many of 
my rural small communities. That got me in trouble. Ice cream 
on Sunday did as well.
    If they are compliant, what about the home conditions or 
the conditions in terms of any kind of a communal living? Well, 
we saw them playing soccer, we saw them playing volley ball. I 
did not see anybody playing ping-pong, but it was there.
    What about the observation of their culture and their 
religion? They pray 5 times a day, at least 20 times. Everybody 
is very reverent and silent. No American touches the Koran, 
none. A Muslim does. They are in each cell, and so we are 
really respecting that.
    General Hood, who is the current commander, happens to be 
from Kansas, and I talked to his dad this morning and I told 
his dad he was doing an outstanding job. He gave us a wonderful 
briefing. He runs a tight ship with excellent oversight, 
supervision, and detainees are treated humanely and 
respectfully, both in the interrogation and the detention 
facilities.
    It is getting results. Now, that was another big point that 
Senator Clinton made, and I wish she was here. We are getting 
valuable intelligence from Gitmo every day.
    I saw the interrogations. I know the material we have. I 
know--I am not going to get into anything specific here, but I 
do know that it is current and can save lives, more especially 
in events like Casablanca and Madrid and, yes, London, and yes, 
plots against the United States.
    We are using carrots, not sticks. I did not see any 
perfume, I did not see any straddling. I did not see any sleep 
deprivation, because that does not work. The positive side does 
work. So the men and women working at Gitmo handle very 
dangerous people every day, but it seems lately they have more 
to worry about from Congress--and that is what they told me: 
What is going on in Congress? Not only do they know it, but the 
prisoners know it from the terrorists they hold and 
interrogate.
    Why would you shackle somebody to the floor prior to the 
interrogation in earlier days? Because their lives were at 
stake. They have made homemade weapons despite our very best 
efforts. They spit in people's faces, and that is not even the 
first of it. The rest of it is so abhorrent that I cannot get 
into it, not to mention any kind of physical activity, even if 
shackled, that they would do.
    So to protect the person who is leading them into the 
interrogation room, that would be an obvious thing that you 
might want to do.
    General Schmidt and General Furlow, you have conducted a 
very thorough investigation. I thank you for that. You have 
answered all my questions in regards to the allegations.
    I think the brave women and men down there at Gitmo are 
working hard every day to keep us safe. They have enough to 
worry about without any more ill-informed accusations of abuse 
or calls for closing down Gitmo. I think with the current 
practices, the current oversight, I think they need our 
support.
    Thanks for a job well done. General Craddock, the work 
being done at Gitmo is important. I want you to know, and your 
people down there, that you have my support.
    I would like to remind my colleagues we are in a war on a 
global scale. It is against a vicious and determined enemy. 
They reside in Gitmo. They are interested in one thing and that 
is killing.
    The terrorists at Gitmo know today about this hearing. They 
know about the questions. They know about who goes down there. 
The people who have asked the most serious questions--and I do 
not challenge that--go to Gitmo and take a first-hand look.
    When they are down there, these terrorists view their 
incarceration as part of their jihad. It is just like that 
manual that you held up. The more they know about what we are 
doing, the more they can offset what we are trying to do in 
terms of interrogation.
    They know about this hearing, and they doubt our resolve 
and they think down the road, with legal help and wounding 
themselves and saying they have been basically treated in an 
inhumane fashion, that they can make a case with the American 
people. So they say that the Americans do not have resolve and 
that basically these kinds of hearings, it seems to me, really, 
I question whether we have the resolve as well. I think it is a 
most unfortunate statement that I would have to make in that 
regard.
    So I thank you for the job that you are doing, and I called 
the three parents of the three young men down there who are 
working so terribly hard, who work 1, 2, 3 days in those camps 
that are so terribly difficult and then have to take 1 day off, 
maybe 2 days off, just to get away from it. I remember that 
thing on the back of their cover, ``Honor Bound.'' They are 
doing the right thing. They are getting the best intelligence 
possible. I do not think we need to concentrate on 3 
misdemeanors out of 24,000 investigations.
    I am way over my time, but I really do not give a damn.
    Chairman Warner. Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    I always thought that we were part of a Geneva Conventions 
because we were concerned about the safety and the well-being 
of our own troops today, tomorrow, and in future conflicts. I 
never thought that the test was we are going to be as bad as 
whoever we are going to fight in whatever war we are going to 
be in.
    It seems to me that if we are going to have an expectation 
that we are going to have our people treated decently--we know 
the history in many cases that they have not been, but if we 
are going to find that out, it always seemed to me that the 
Geneva Conventions was there to make sure that we were going to 
protect our own people that were being held in other 
circumstances. That I still feel myself is the appropriate kind 
of criteria.
    We have had other discussions about the Geneva Conventions 
and enemy combatants and we will get back to that at another 
time. But I do not think we can simply answer, as some have 
done, that the behavior, whatever behavior might have taken 
place at Gitmo, is acceptable because terrorists do worse. By 
lowering our standards, we reduce our moral authority in the 
world, undermine our leadership on human rights.
    The FBI found that these torture techniques, as they called 
them, including the stress position, the 20-hour interrogation 
marathon, the use of dogs, violate the Constitution. They 
strenuously objected to them. Incredibly, the DOD found that 
these techniques were permissible despite the FBI analysis. 
Even under the DOD standards, the investigators found that some 
of the techniques used were not authorized.
    General Craddock, the report--I know you have been asked 
this, but I want to come back to it. The report--because I 
think there is whole questions of accountability, both in 
Gitmo, I think, as well as in Iraq and other places. But let us 
just focus on this. The report recommended that General Miller 
be reprimanded, but you rejected the recommendation and simply 
referred the case to the Army IG.
    I know Senator Reed asked you a question, that question or 
one similar. I believe you gave an answer. I'd be glad to hear 
you rather than me stating what I think I heard you answer. 
Maybe you would address that, if you would, again, please.
    General Craddock. What is the question, Senator?
    Senator Kennedy. The question is, there was a 
recommendation for disciplining General Miller. You made a 
judgment decision--that General Miller be reprimanded. But you 
rejected the recommendation and simply referred the case to the 
Army IG. I am asking you why, what was the basis for that?
    General Craddock. I disapproved the recommendation that he 
be held accountable for failing to supervise and be admonished. 
I am required to forward that to the Army IG because it is an 
allegation of wrongdoing. So that is the procedural aspect, 
Senator.
    My rationale----
    Senator Kennedy. Let me just go back on this. He is the man 
in command on this. These violations have taken place on his 
watch, on his watch. The commission itself found that he ought 
to be reprimanded on this because it was on his watch. He had 
the general overall responsibility. What is it that you find 
that was wrong about the recommendation that he had 
responsibility?
    General Craddock. Senator, their recommendation said he 
failed to supervise the interrogation of ISN-063. There were no 
violations of the interrogation of ISN-063.
    Senator Kennedy. Now, which torture policy are you using 
now? Are you using the Bybee memorandum now, the one that has 
been completely discredited? Which torture memorandum are you 
referring to? That of course has been repealed.
    General Craddock. I am not referring to any torture 
memorandum. I am saying what the report said, failed to 
supervise the interrogation, not that there were violations in 
the conduct.
    Senator Kennedy. Well, failed to. Are you not just parsing 
words, ``failed to supervise.''
    General Craddock. Those are not my words.
    Senator Kennedy. Pardon?
    General Craddock. Those are not my words. I would have to 
defer that to General Schmidt. Those are his words, and General 
Furlow. They sent that recommendation.
    Senator Kennedy. Well, they made that finding that he 
failed to supervise.
    General Craddock. I am not parsing words. I am responding 
to you.
    Senator Kennedy. Okay. Well, if he failed to supervise, 
that is not enough--we have had I do not know how many--taking 
a different time, in 2003 the Navy fired 14 commanding officers 
for effectively failing to supervise, fired them. 
Accountability, accountability. I am just trying to find out 
where the buck stops, because this has been an issue and a 
question, quite frankly, whether this is just a time--we heard 
from the SECDEF a long time ago there were just a few bad 
apples. Then we had a number of, I think 8, 10, or 11, 
different kinds of reviews that have been done in the military 
over this, and it never seems to that we get up to any kind of 
level of accountability.
    We have gotten a number of people at the lower levels that 
are recommended for action and for sanction. But it does not 
seem to me that it comes up. When it does not come up, then I 
have to ask, well, are they following, are they doing 
something? Is there some orders or some procedures that they 
are following that we do not know about that lets them 
effectively get away with it?
    General Craddock. Senator, I disagreed with that 
recommendation and disapproved it because of a difference of 
opinion with regard to my investigators concerning the degree 
of supervision required, necessary, or executed, take your 
choice. I looked at this several times. I deliberated a long 
time. As I said earlier, I always when I am faced with these 
situations as a commander try to put myself in that 
individual's position, try to understand the environment, the 
scope, the wide range of things going on. I have some 
experience that allowed me to do that.
    I looked at what General Miller, according to the report, 
according to what my investigators told me, what he did know. 
He did know aspects about that interrogation that I felt were 
important for him to know. It is stated in the report. He 
admitted he did not know all of the applications used by the 
interrogation teams. But he charged and depended on his 
subordinates to carry it out in accordance with policy and law, 
which they did. There was no violation of policy and law. So he 
placed trust and confidence in them and they supported and I 
think repaid that trust and confidence, in my judgment.
    When you combine that with all the other taskings he had, I 
felt that he exercised a reasonable degree of supervision 
during the conduct of that special interrogation program.
    Senator Kennedy. The only thing--and my time is running 
out--he did not know--I find, if he did not know, failure to 
know is still failure to lead, I thought, in the military. I 
remember that submarine captain that got cashiered when he ran 
into that sandbar going full blast. It was not even on the--he 
was relieved, because he did not know. It was not on any of the 
charts. He was dismissed, career ended in the United States 
service.
    Now we are being told that he did not know, and the 
question that I would think some are asking is, is this a 
failure to lead. If you do not punish, then what you are also 
saying is that it is allowed. The other side of the coin is, it 
is allowed. That is what some people--that is the message you 
get. You might not agree with that, but I think there is a case 
that can be made for it.
    General Craddock. Senator, I would disagree with that, and 
I would say that if a commander is required to know every 
detail about all aspects of the organizations that he commands 
he will be unable to lead.
    Senator Kennedy. This is not every aspect, General. You 
know what we are talking about. This was the whole purpose for 
getting information, intelligence. There was a real debate 
about which techniques were the best to be able to get it. That 
was all being discussed. Miller was very much involved in this, 
eventually moved over to Iraq in order to be able to try and 
bring the intelligence into more effectiveness. He was the 
master in terms of this.
    The idea that on his watch, that these things were going on 
and that he did not know about--and the people that 
investigated say that he deserved to be reprimanded and you 
overturn them is something that many of us wonder about.
    General Craddock. As I stated, Senator, he did know about 
some of those. He stated he knew about it. He stated he did not 
know about others. He inherited this. This plan and 
implementation was ongoing. When he arrived, he walked into it 
and had to, along with many other things, bring it up to speed. 
He had a significant number of major tasks.
    Senator Kennedy. My time is up, Mr. Chairman. Thank you.
    Chairman Warner. General Craddock, you have three times now 
explained very carefully your professional judgment in changing 
this recommendation of General Schmidt. But I would like to put 
into the record, which I think you will agree with me, in no 
way do you have any lesser respect for his professional 
judgment, which was contrary to yours, and in no way is your 
reversal to reflect adversely on either his judgment or his 
performance heading up this team at your directive.
    General Craddock. Absolutely, Mr. Chairman. I think the 
team here did a wonderful job. I think that is evidenced by the 
report they have provided, and in really all but one 
recommendation which I heartily approve. This was very 
difficult. Members have said that. Discovery learning is 
difficult. It is a somewhat ambiguous area and I think, and 
again I have told General Schmidt and General Furlow, 
reasonable men will reasonably disagree. I disagree with the 
scope of supervision required, the degree, the level, and that 
is it.
    Chairman Warner. The facts are there and I just wanted to 
make that observation.
    There has been some inference about the hearing that we are 
now having in the public. My understanding is that you briefed 
the Secretary on this yesterday; am I correct?
    General Craddock. I believe it was the day before 
yesterday.
    Chairman Warner. The day before yesterday. In due course, 
will you--normally the Department on the previous 
investigations has afforded the opportunity for the panel, in 
this case yourself and these two officers, to brief in open 
session in the Pentagon individuals in the press. Am I correct 
on that?
    General Craddock. Yes, Mr. Chairman. As I understand there 
is some proposal working now for some activity this afternoon 
to do that.
    Chairman Warner. That is my understanding, that this report 
presented to this committee this morning will be presented in 
open session at the Pentagon tomorrow. I wanted to make that 
clear. Thank you very much.
    Senator Sessions.
    Senator Sessions. Mr. Chairman, thank you.
    I do know that in a free country we have to have public 
reports and public hearings. I do think that we in Congress 
have pushed this awfully far. As I calculate it, this is about 
the 30th hearing we have had on prisoner treatment since the 
beginning of the war on terrorism. I think there are at least a 
dozen major investigations have been conducted. I frankly 
think, unless we are just trying to play politics, unless we 
are just trying to make some political points, perhaps in the 
future we would do better to have our hearings in chambers, 
closed hearings; and if there is something that needs to be 
made public we will make it public.
    Chairman Warner. But, Senator, I bring to your attention 
that this report, I was advised earlier, is going to be made 
public at the DOD this afternoon. It seems to me that it was 
incumbent upon this committee to receive that report here in 
open session this morning, in the same way that it will be 
presented this afternoon at the Pentagon.
    Senator Sessions. I understand, and I respect the chairman. 
There is no better patriot or better chairman of any committee 
I have served on than you. I am just expressing my personal 
view that it is time to take this out of the number one project 
on our agenda.
    I would just say to my colleague, the senior Senator from 
Massachusetts, he said--again he has compared the treatment 
that we give to prisoners to those of our enemy, and that is 
just not fair. He said we are going to be as bad as those we 
fight. He said that our prisons are the same as Saddam's, like 
Saddam Hussein's prisons.
    Senator Kennedy. I want to be quoted--I do not mind being 
quoted, but I need to be quoted accurately. I have never 
mentioned Saddam Hussein. I do not know where the Senator--
    Senator Sessions. Not in this hearing----
    Senator Kennedy. No, I did not.
    Senator Sessions. Let me see if I can get the correct 
quote. I believe the correct quote was--see if I am wrong--that 
``We have opened his prisons under new management.''
    Senator Kennedy. I can read back what I said.
    Senator Sessions. I just wanted to say I am concerned about 
that. The distinguished Senator has a name known worldwide. 
Other members of this committee are known throughout the world, 
and when we make allegations against the men and women in 
uniform who are out there serving at great risk because we sent 
them, then we need to be careful we do not suggest we have a 
policy here of bad treatment when the record indicates 
otherwise.
    As to how their prisoners are treated, their heads have 
been cut off. They have tortured. Torture chambers have 
existed. I met and had a press conference with seven or eight 
who had their hands cut off by Saddam Hussein.
    General Schmidt, did you see any prisoner or hear any 
reports of a prisoner that died in Gitmo or any prisoner there 
who suffered a broken bone or serious permanent injury as a 
result of any treatment in Gitmo?
    General Schmidt. To my knowledge there have been no deaths 
of any detainee at Gitmo and the only injury that is 
significant is one that they believe it was self-inflicted and 
he is under continual care in the hospital down there.
    Senator Sessions. I think that is important.
    I know you substantiated two allegations. One of those was 
the use of duct tape. Now, I do not dismiss your finding, but I 
would like for you to reiterate, that is one of your two 
findings of abuse there, of allegations. Explain the duct tape 
situation?
    General Schmidt. Sir, there was a prisoner who was 
undergoing interrogation and by various accounts he began to 
chant either Koranic verses or a resistance message, according 
to two witnesses. There were some number of other detainees, 12 
to 17, I believe I heard those numbers, in the vicinity of 
that. The interrogator directed the military police to quiet 
him down.
    The military policeman looked around and saw some duct 
tape. He says: This? The interrogator said: Go ahead and do it. 
He took some duct tape, put it on the detainee's mouth, and 
within a moment or so he had worked that off by wiggling his 
jaw, I guess, around.
    They applied another one. They wrapped it around his mouth 
and his face. He continued to work hard and he was able to get 
it off his mouth. Finally, the military policeman said: Now 
what do I do? He said: Just wrap it around his head top to 
bottom, around his mouth, and that will do it. In fact it did.
    The FBI allegation of that came when the interrogator or 
the supervisor walked down the hall and said to two FBI 
agents--and he was laughing--he said: You need to come see 
this. That is where the allegation came from and that was the 
situation that generated that particular allegation.
    Senator Sessions. I think that shows the sensitivity of the 
military to improper conduct. I am not sure that was improper 
under the circumstances. Perhaps it was unnecessary, but it may 
not have been. I was not there. I do not know the nature of the 
prisoner or what kind of message he may have been sending to 
other prisoners.
    I remember the colonel in Iraq who fired a gun when his 
troops were taking fire near the head of an al Qaeda or 
terrorist person. He was cashiered out of the military, removed 
from the military. He did not touch the man, but he used a 
threat of force in a way that was improper and was removed.
    With regard to Abu Ghraib, we have said over and over and 
over again that the higher-ups are involved, higher-ups are 
involved. I think we ought to say right here and now that the 
higher-ups were not involved in Abu Ghraib. They prosecuted 
those people who were involved, whose pictures showed they were 
involved. They have been convicted and sentenced to jail, and 
they have not produced any evidence, credible evidence at all, 
that higher-ups ordered them to do that. In fact, the facts 
show there was no interrogation ongoing. It was just bad 
behavior by a group of soldiers on the graveyard shift that 
should never have happened. They are now in jail.
    General Schmidt, you made a finding that, while some abuses 
may have occurred, that you found no inhumane treatment; is 
that correct?
    General Schmidt. I found those--none crossed the line into 
being inhumane.
    Senator Sessions. None crossed the line into torture?
    General Schmidt. That is correct, Senator.
    Senator Sessions. You found, I suppose, no systematic plan 
or process by which prisoners were subjected to inhumane 
treatment or torture?
    General Schmidt. That is correct, Senator.
    Senator Sessions. You were free to conduct this 
investigation as you saw fit?
    General Schmidt. That is correct. It was very pointed. The 
objectives were very pointed on it.
    Senator Sessions. Mr. Chairman, I think we have created an 
entirely new misimpression somehow, some way, of what is going 
on at Abu Ghraib. I look forward to going with you tomorrow. I 
know you are personally looking forward to examining what went 
on there. Senator Roberts has been, and I went when it was in 
the old prison some time ago. This is a new facility. We spent 
$100 million, I believe, on it. If it is the site they showed 
me where they intended to build it, it is a beautiful site on 
the water.
    But, Mr. Chairman, I think that it is important for us to 
remember that these are dangerous individuals; that 17,000 have 
been detained in Iraq; only 800 have been sent to Gitmo. Now 
only about 500, a little more, remain. Of those 200 or so that 
have been released, 12 of them have been rearrested for waging 
war against our soldiers and against the peace and stability in 
Iraq or Afghanistan. These are not people that are not 
dangerous. They are dangerous.
    I would say one more thing. Since they are unlawful 
combatants, they are not entitled legally to the protections of 
the Geneva Conventions and we have a right to interrogate them 
and we have a right to try them by military tribunals, in my 
opinion, just like the case, the defendants in the Ex parte 
Quirin case, were tried during World War II.
    These are not American citizens charged with fraud or dope 
dealing. They are terrorists waging a war against civilization 
and democracy around the world. I think we cannot deny 
ourselves the right to utilize techniques within the rules of 
war that allow us to interrogate and gain information that can 
save innocent lives.
    Thank you very much.
    Chairman Warner. Thank you very much, Senator.
    It is the intention of the chairman to take a trip on 
Friday to Gitmo and, members of this committee, we may have a 
seat or two available if they so desire.
    Senator Sessions. I hope to join you.
    Chairman Warner. Yes, I understand that. But I have to 
point out that there is a small item of a hurricane and that is 
now being examined by the aviation department very carefully.
    Senator Kennedy. Mr. Chairman, just briefly in response to 
what I had said here. I am always glad to have someone 
misrepresent what I am saying and then differ with it, which we 
had here.
    This country has had a very proud tradition adhering to the 
Geneva Conventions. Some people think that they ought to--that 
kind of condition should not continue to be a part of American 
policy. I differ with them because I accept the concept that 
the principal reason we have the Geneva Conventions is to 
protect Americans.
    Chairman Warner. Who may become captives.
    Senator Kennedy. Yes.
    The fact is I would hope that we are not going to go and 
set as a standard the lowest level of conduct and say, well, 
because another side does it we are going to do it as well. I 
always remember, echoing in my ears what John McCain said, and 
that is: The more they tortured me, the less I was willing to 
give them. John McCain. John McCain said that.
    So let me finish. So when we get all of our lectures out 
here on this committee about how we are treating people, it 
does seem to me that it is appropriate that it is easy to get 
all worked up and all of us do about the challenges that we are 
facing as a country and society and about the service men and 
women that do so nobly. But I would certainly hope that we are 
not beyond the point of understanding what has been 
historically and I believe still is in the best interests of 
American service men and what works in terms of getting 
information and intelligence, both works in getting the 
information and intelligence and that can later be used in 
terms of bringing those individuals to justice. That is 
basically the point.
    Chairman Warner. Senator, I assure you there are a number 
on this committee who are working on that very issue today.
    Senator Sessions. Mr. Chairman, I would just say, the 
Senator said we are going to be as bad as those we fight, just 
a few minutes ago. We are not as bad as those we are going to 
fight. We are not adopting their techniques. We discipline 
people who violate the law or the rules. As a matter of fact, 
almost 200 service personnel have been disciplined in one form 
or another for failure of discipline.
    Chairman Warner. We have to move on, gentlemen.
    Senator Sessions. I just feel like we need to be careful 
about what we say about those who serve us.
    Chairman Warner. Senator Cornyn.
    Senator Cornyn. Thank you, Mr. Chairman.
    I do not know what the headlines are going to be written 
about this hearing today, but I hope they include the 
conclusion that AR 15-6 found no evidence of torture or 
inhumane treatment at JTF Gitmo, notwithstanding some of the 
statements that have been made here and elsewhere. I think that 
is an important conclusion.
    General Craddock, you were engaged in an exchange on the 
Geneva Conventions. But as you pointed out, the detainees here 
are either members of the Taliban or al Qaeda fighters. In the 
case of al Qaeda, of course they do not wear a uniform, they do 
not recognize a chain of command, they do not conduct their 
activities according to the law of war.
    It is interesting, during the confirmation proceeding for 
the Attorney General, Alberto Gonzalez, we had quite a debate 
among legal scholars, including the Dean of Yale Law School, 
who ultimately conceded that being non-signatories to the 
Geneva Conventions, not recognizing a military hierarchy or a 
law of war, that al Qaeda was not covered by the Geneva 
Conventions. I believe that is essentially what you have said 
here today, and I happen to agree with you and I think it is 
really irrefutable.
    Three Federal courts have examined that, have so concluded, 
and I think it is absolutely right.
    On the other hand, you have stated it is our policy not to 
engage in torture or inhumane treatment, as being inconsistent 
with our values, and certainly I am relieved to know that this 
exhaustive investigation so concluded.
    I want to ask about the 20th hijacker, al-Qahtani, as he 
has been identified in other contexts. This is the individual 
that apparently had committed himself to committing suicide, 
that is losing his own life, in pursuit of his cause by 
participating in the United Airlines Flight 93 that, due to the 
bravery of civilians on board that flight, went down in a field 
in Pennsylvania rather than hit the Capitol or the White House 
or other places that they intended.
    This individual, in addition to being an al Qaeda 
operative, once he was captured in Afghanistan and transferred 
to Gitmo, he withstood any interrogation techniques for about 8 
months; is that not correct, General Craddock?
    General Craddock. That is correct, Senator.
    Senator Cornyn. It was in that context, as well as the 
ongoing war that we were engaged in and our efforts to gather 
actionable intelligence in order to protect not only our troops 
in the field but our civilians here in the homeland, that 
efforts were made to defeat his counter-interrogation defenses, 
and it was in that context that what we have heard discussed 
occurred.
    I guess when I read the conclusion here--I want to ask you 
a little bit about that--as a result of this investigation--and 
I understand, I believe that General Schmidt and General Furlow 
have done an admirable job here. But just in terms of the 
ultimate conclusion about General Miller, it is my 
understanding from what has been said here is that the 
interrogation plan used on al-Qahtani was legally permissible 
and that there has been no finding that it deviated in any way 
from a lawful interrogation of this al Qaeda operative. Is that 
correct, sir?
    General Craddock. The plans, the special interrogation plan 
developed, used both FM 34-52 interrogation techniques and 
those authorized in the 2 December memo. Now, the interrogation 
technique then is manifested by the development of the JTF 
Gitmo application, and that is where the interrogators look at 
what is it that this guy has resisted, what have we tried that 
did not work, how do we get him out of his comfort zone, how do 
we get him to be discomfortable, to be on edge? We need to be 
able to break his resistance. Then they develop those 
applications to do that.
    Those were found to be, again consistent with, in 
accordance with, pride and ego down and futility.
    Senator Cornyn. The means used on this detainee, al-
Qahtani, were using authorized procedures; is that correct?
    General Craddock. As I understand and read the report, that 
is correct. But I will defer to General Schmidt. Is that 
correct, Mark?
    General Schmidt. They were within the broad authorized 
techniques, authorized by the FM and the SECDEF memo of 2 
December, that is correct. At the application end, they did 
stay above the threshold of inhumane treatment. There was no 
torture or inhumane treatment.
    Within that, I found that each individual act, whether 
authorized or unauthorized, had a rolling cumulative effect on 
this individual, and it was the cumulative effect that we found 
to be abusive in its totality and degrading.
    Senator Cornyn. General Schmidt, I want to lay as a 
predicate, my great admiration for you and all of our folks in 
the military, but particularly for the difficult job that you 
have undertaken here. My dad served 31 years in the Air Force 
and I have great admiration for you and everyone who wears that 
uniform.
    But I have a little trouble understanding how, if an 
interrogation on 1 day is within authorized limits and another 
day it is within authorized limits, how you can say that the 
cumulative effect was abusive and degrading and somehow fell 
below authorized limits. Can you explain that for us?
    General Schmidt. Sir, the limits of each interrogation is 
what they were, and they were usually limited by the amount of 
time that an interrogation team would be in the interrogation 
room. It is much like, the analogy would be, playing music that 
you do not like. That might be annoying. If there are no limits 
placed on the duration that you are going to listen to that 
music--pick your worst music and you listen to it and somewhere 
at 10 hours you think you have had enough, and maybe at 20 
hours. At some point there might be a limit where that is 
abusive music, the environment becomes abusive. That is the 
cumulative effect that we tried to get to.
    Senator, I will tell you that it was very difficult for us 
as military members to go in there and look for alleged abuses. 
Of course, you look at a character like al-Qahtani and you say, 
do the means justify the ends? That was not part of our 
charter. It is did something happen? Were there abuses? That is 
what we identified.
    Then we attempted to say, well, were they authorized or 
not, substantiated or not? Then over the course of time we felt 
that this particular individual, as heinous a person as he is, 
the cumulative effect of that long duration, 160 days of the 
segregation and the increased aggressive interrogation 
applications, constituted abusive, degrading treatment.
    It is pretty hard to look through some of those things that 
are in there and say, was he degraded? What is the definition 
of ``degrading'' to a reasonable man? So we had to make those 
judgment calls and, sir, that is what we did.
    Senator Cornyn. Finally--and I respect your answer--for 
myself, I look at this person as someone who is not only 
willing to take his own life in pursuit of his cause, but 
obviously the lives of a lot of other innocent people. I 
noticed he was dehydrated due to his own refusal to take 
fluids, so he had to be put on an IV. He obviously was denying 
himself. You were not denying him water. He was denying it to 
himself, as well as fasting.
    So I personally am glad that the interrogators used humane 
and authorized interrogation techniques to get the information 
out of him that they did, and I trust that they saved American 
lives and lives of other innocent people in that context.
    Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Warner. Senator Chambliss.
    Senator Chambliss. Thank you very much, Mr. Chairman.
    First of all, let me join the chorus of my colleagues in 
commending you gentlemen for the job you did. This is an 
extremely difficult task that you were given, and obviously 
there are still some stones unturned that you are going to go 
back and look at. But at the end of the day I do not see 
anything we have talked about today affecting a change in your 
conclusions.
    But even with the difficulty of the job that you three men 
had in carrying out your duty, the job that those guards and 
those men and women who are serving at Gitmo is frankly much 
more difficult in my opinion. I have been to Gitmo twice. I was 
there before Camp Delta was built. I went back after Camp Delta 
was built.
    The images that we see on the television today relative to 
Gitmo always show the old cages that these prisoners were put 
in when they first went down there. Those cages, as we know, 
have not been used in years. Camp Delta was built for the 
purpose of providing them with more adequate housing, more in 
line with the Geneva Conventions, although we probably did not 
have to do that.
    When I was down there the first time, I was told by guards 
about the fact that these prisoners were spitting on them, that 
they were taking human feces and throwing it on them, and they 
were having to put up with these kinds of conditions. We just 
had a delegation that returned from Gitmo this past week, a 
group of Senators that went down there. Those Senators came 
back with these same stories from individual guards who now, in 
spite of the new accommodations that the prisoners have, they 
are spit on regularly, they are cursed regularly, human feces 
are thrown at them regularly.
    Two African Americans from my home State made the comment 
to my colleague from Georgia about the fact that the worst 
racial slurs that could be used against an African American are 
used against them regularly.
    This is the type of condition that our troops are in. Under 
those conditions we have an allegation that there are 
allegations of 3 substantiated cases out of 25 interrogations 
that have taken place. I join Senator Sessions, Senator 
Roberts, and Senator Inhofe in thinking that, gee whiz, under 
the conditions that our folks are literally in combat in Gitmo, 
that is amazing, that we have not had more than three.
    One of them, she was spit on and went out of the room and 
did something she should not have done. But it was a very 
emotional act on her part. Certainly she should not have done 
it. She has been reprimanded, as she should have been, and we 
have moved on.
    I am going back Monday a week from now, Mr. Chairman. If 
anybody cannot go with you, they are certainly welcome to go 
with me. I know I have invited all the members of the 
Intelligence Committee, but anybody on this committee is 
welcome to go.
    General Craddock, you are absolutely right in your comments 
regarding that training manual. Let us do not stick our head in 
the sand. The American people need to know and understand that 
al Qaeda is watching this hearing today as we speak. Their 
training manual has already been rewritten, I am sure, to 
upgrade it to where now the terrorists are being trained as to 
how to respond to new types of interrogation that we may 
utilize.
    So is this the right thing to do or is it not? I guess 
Senator Sessions may be right in one respect, but I respect the 
chairman and if it is going to be public then it is only right 
that we come here today to let the American people know and 
understand what is really going on in Gitmo.
    While I disagree with some of the statements that Senator 
Clinton made relative to this issue, I do agree with her on one 
thing. That is, the ultimate question, General Craddock, is 
whether or not we are being effective with our interrogations. 
I think I know the answer to that because I have been told that 
answer by folks who have been down there. We have some 
Intelligence Committee staff that were interrogators.
    But let me just give you an opportunity to answer that 
question: Are we getting information from these prisoners at 
Gitmo and have we gotten information in the, what, 3\1/2\ 
years, 2\1/2\ years now, that they have been there that has 
saved the lives of American men and women?
    General Craddock. Senator, absolutely yes, in response to 
your question. We have and we are today still getting 
information that is relevant, that is actionable, and is 
supporting our servicemembers in the field in the global war on 
terrorism. I will defer to my colleagues to further amplify.
    General Schmidt. To my knowledge, that is absolutely a true 
statement. It continues to be a fairly fertile ground for 
information.
    General Furlow. Yes, sir, Senator. In my time at Gitmo 
visiting with them, they pride themselves on being a model for 
strategic intelligence gathering, and they continue to get 
intelligence. Now, the specifics, I am not privileged to that, 
nor did I delve into that during the portion of our 
investigation.
    Senator Chambliss. One other thing I think we need to 
emphasize and that is the type of people who are down there. 
They have been characterized, General Craddock, as the meanest, 
nastiest people in the world, and their sole purpose in life is 
to kill and harm Americans right now, and we know that.
    In spite of that, we have released some 250 of these 
prisoners, I believe, over the last 2 years. I also know that 
we have had public information relative to at least 10 
individuals who were incarcerated at Gitmo, who were released, 
who have either been captured or killed on the battlefield or 
who we know are operating today in the process of killing or 
trying to kill and harm Americans. Am I correct about that?
    General Craddock. That is correct, Senator. We believe the 
number is 12 right now, confirmed 12 either recaptured or 
killed on the battlefield.
    Senator Chambliss. Those are the ones we know about. That 
does not include the ones that we do not know about, who had 
nowhere to go but back to Afghanistan or back to Iraq to again 
try to kill and harm Americans.
    So I look forward to going back to Gitmo for any number of 
reasons, obviously to observe what is going on. One other thing 
that I did while I was down there, after Camp Delta was built I 
had the opportunity to go in and observe an interrogation 
taking place or several interrogations taking place, that they 
took me into the room and we looked through the glass where 
they could not see us but we could see them. Obviously there 
was nothing improper going on.
    As I walked out, I said: ``What is going on over here?'' 
They said: ``Another interrogation.'' That was not one they 
planned to take me to see. I said: ``Let us go in.'' We did, 
unannounced, and obviously there was nothing improper going on 
relative to an interrogation that was not planned for me to 
see.
    So I again appreciate the job that you do. But there are a 
lot of folks from my home State who were either guardsmen, 
reservists, or active duty that were at Gitmo on the occasions 
that I have been down there and ones that I have talked to who 
have been there and have come back, and the conditions under 
which they have had to operate have been deplorable from the 
standpoint of the treatment directed at them by the prisoners.
    In spite of that, they have just done a very professional 
job in my opinion of conducting themselves and making every 
branch of the Service proud that they are part of that Service 
in their rendering of that Service at Gitmo.
    So gentlemen, again, thank you very much for your service 
to our country.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator. I think it 
is extremely important that you brought out those facts with 
regard to the abuses being suffered by the military and 
civilian personnel tasked with this difficult interrogation 
process. It has been over the years. I judge by now that has 
been somewhat curtailed and contained, or is it still at a 
level that is troublesome?
    General Craddock. Mr. Chairman, any incident is 
troublesome. We now have detainees, if you will, aligned based 
upon their actions towards the guards. We know where to expect 
it most. However, I was at Gitmo recently. I talked to some 
sailors who were on the guard force in a camp that was 
supposedly with detainees who were more cooperative, and I 
said: What is your worst day? The answer was, they did this or 
they did that. So it happens in most of the camps still 
occasionally.
    Chairman Warner. It continues to happen.
    General Craddock. Indeed, sir.
    Chairman Warner. I hope appropriate measures are taken.
    Senator Levin, you wish to correct the record?
    Senator Levin. No, not a correction; just clarification of 
some factual matter for the record.
    Chairman Warner. Let me interrupt for all members. We will 
reconvene just as quickly as we can in room SR-222 for a closed 
session of this hearing.
    Senator Levin. This will just literally take a couple 
minutes, and I thank you, Mr. Chairman.
    As I understand your task, General Schmidt and General 
Furlow, it was to look at interrogations where the FBI was 
present; is that correct?
    General Schmidt. No, sir. To be more correct, we were to 
look into allegations of FBI assertions that interrogations had 
taken place. They did not see these interrogations. They 
possibly had heard of it.
    Senator Levin. I see.
    General Schmidt. It was any allegation that they had that 
we were doing things untoward.
    Senator Levin. About how many interrogations would have 
been involved in what you looked at? 50? 100? Give us a rough 
idea?
    General Schmidt. I am going to say thousands.
    Senator Levin. You looked at thousands of interrogations?
    General Schmidt. Data that would have covered thousands.
    Senator Levin. Would you be able to determine whether there 
were abuses at 24,000 or just at a few thousand or a few 
hundred? Give us an idea where you made a determination as to 
whether there was abuses or not?
    General Schmidt. To be sure I am close, one moment. 
[Pause.]
    General Furlow. Sir, in the process of the methodology and 
looking at the data that is down there, in addition to the FBI 
memos and electronic correspondence and the unredacted 
portions, reviewing them, Gitmo has a very extensive system 
called the Joint Detainee Information Management System (JDIMS) 
which--and I had the opportunity to go through and selectively 
sample a cross-range of these detainees and their records that 
they have provided and through the logs that the MPs provide 
that merges into the program there, allowing you to look at a 
large number of interrogations in a very short period of time.
    The next step of methodology we pursued was by actually 
looking at the paper copies, which were the main means of being 
able to conduct business prior to around the first calendar 
quarter of 2003.
    So to sit there and say that we have been able to review a 
couple thousand, 3,000 interrogations is accurate.
    Senator Levin. Fine, 2,000 or 3,000.
    General Furlow. Yes, sir.
    Senator Levin. Through those records.
    General Furlow. If there was an indication based on a 
particular detainee that there was a possibility, then we would 
trace that fact pattern to follow-on interrogations.
    Senator Levin. You did not talk to the people who carried 
out those interrogations?
    General Furlow. No, sir, I talked to those people.
    Senator Levin. Oh, you did talk to all the people who were 
interrogated, 2,000 or 3,000?
    General Furlow. No, sir. I misunderstood your question. I 
talked to the interrogators that were presently at Gitmo.
    Senator Levin. I do not mean that, but did you talk to the 
interrogators at 2,000 to 3,000 interrogations?
    General Furlow. No, sir. No, sir.
    Senator Levin. It would be a lot fewer than that?
    General Schmidt. Sir, we were----
    Senator Levin. It would be a lot fewer than that?
    General Furlow. Yes, sir. But what we did do is in the 
process of identifying who those were we went and interviewed 
as many as we could.
    Senator Levin. Okay.
    General Schmidt. But there were interrogators who had 
interaction with other interrogators that we did not know, that 
would have been asked or would have known about other 
opportunities for abuse. So this thing interlaced well beyond 
those that we had direct contact with, that could have surfaced 
an allegation.
    Senator Levin. Okay.
    Next question: Were you tasked to look into cases where 
there were criminal proceedings pending or was that something 
you were not supposed to get into?
    General Schmidt. The criminal proceedings that were pending 
had nothing to do with detainees at Gitmo. I discussed that 
with the appointing authority and it turned out it was not 
related at all.
    Senator Levin. So none of the pending criminal cases 
related to any allegations of detainee abuse?
    General Schmidt. That is correct.
    Senator Levin. Thank you. Did you make any judgment on the 
legality of techniques or only as to whether or not those 
techniques were authorized, not authorized, or whether or not 
they took place?
    General Schmidt. Sir, the legality was not within our 
purview. Whether, again as I stated before, the means justified 
the ends was not within my charter either.
    Senator Levin. That is helpful.
    Thank you, Mr. Chairman. Thank you.
    Chairman Warner. We will now reconvene in room SR-222 and I 
thank all participating. I think, General Craddock and General 
Schmidt, would you like to identify those principals that you 
have with you that worked on the report so that their names can 
be a part of this important record?
    General Craddock. Thank you, Mr. Chairman.
    Before I do that, may I have a correction? I would like to 
make a correction that I think is important to do in a final 
closing statement. First, I guess I miscommunicated to Senator 
Reed--it is unfortunate he is not here--because in his final 
statement he indicated displeasure with--apparently he believes 
or as I understood he said that I have by my decision now tried 
to pin the blame for something on an lieutenant commander.
    That is not the case. My modification on that 
recommendation was----
    Chairman Warner. On Miller?
    General Craddock. On the lieutenant commander.
    Chairman Warner. The lieutenant commander.
    General Craddock. Was the fact that I felt that, because of 
the course of the investigation, two individuals very critical 
to that investigation, the staff judge advocate and his 
supervisor, refused to comment and to be interviewed; that the 
way to force that to happen and potentially then to find out 
that the claim from the lieutenant commander that he got 
approval to proceed to communicate the threat from his 
supervisor and his servicing staff judge advocate, would be to 
force them to make a statement under oath.
    So my intent there was not to in any way ascribe blame to 
him by asking for a criminal investigation. It was to indeed 
determine that his allegation was true because those other 
people critical to that determination would not make a 
statement.
    Second, if I may, much of what we have talked about here 
today is all focused on one detainee, 063, al-Qahtani, the 20th 
hijacker. When did this happen? The fingerprint correlation to 
the 20th hijacker was late summer of about a year, less than a 
year, after September 11, when we were still wondering when and 
where is the next attack, as we do today, but maybe with 
greater angst and greater concern.
    So when we made this connection and we realized we had had 
him for 8 months and nothing had happened, he was not providing 
information, there was an intensity that we must do something 
to find out what he knows, because our servicemembers, our 
Nation, could be at risk if he is number 20, which he was. So I 
think that has to be put in perspective. Now, that is one 
individual with interrogation techniques that some may find in 
a cumulative effect degrading and abusive. That is not the 
population of detainees and the techniques and interrogation 
applications used. That was one individual. There were two 
plans developed, only one implemented. The rest of the 
detainees never got into a special interrogation plan, 
completely different techniques and applications used for them.
    I think we need to keep that in perspective as we think 
through this.
    Now, sir, if I may----
    Chairman Warner. Let me ask General Schmidt and General 
Furlow if they have any concluding comments, and then we will--
do you have any concluding comments? I will give each of you 
the opportunity.
    General Schmidt. Mr. Chairman, I just want to make sure 
that it is clear--let me get back to the admonishment issue--
that I agree with General Craddock that commanders to an extent 
rely on the judgment and the experience of their people, their 
subordinate commanders, to carry out the duties that they give 
them.
    This was not an assertion of criminal conduct and Major 
General Miller did not violate any U.S. law or policy. My 
recommendation was that he failed to monitor or adequately 
supervise the interrogations of one high-value detainee. I 
think the report spells that out in some detail.
    So I just wanted to make sure that that was clear. I know 
Jeff Miller, I have worked with him. He is a fine individual, 
and he had a tall task to complete down there. As we 
interviewed witnesses on these alleged abuses and that was the 
focus, to a person very few did not state that, thank God for 
General Miller to come down there and clean up some of the 
chaos that had been organizationally present when he arrived.
    So this was a hard task to do. But again, we were focused 
on the assignment, not on the periphery part of this. We wanted 
to surface and bubble up the truth, the facts, and we have 
presented those in this report.
    I do thank you for hearing us out.
    Chairman Warner. I thank you, and I assure you this 
Senator, and I think that all of us, respect the integrity, the 
difficulty, and your professionalism in handling that delicate 
issue.
    General Furlow?
    General Furlow. Thank you, sir. Regarding a review of the 
FBI documents and witnesses, I would like to put in the record 
here that we reviewed hundreds of documents from the FBI, 
including unredacted e-mails. We also over several months 
worked diligently to speak personally with every available FBI 
agent. We also made specific requests to speak with the ones we 
were not able to for a minimum of three different occasions.
    Ultimately, we considered the best material evidence that 
we had to write a report in a timely manner.
    I would like to communicate, sir, that it has been truly an 
honor to appear before this body today, sir.
    Chairman Warner. I thank you very much.
    Senator Levin. Can I just add my thanks, Mr. Chairman, to 
yours. We have two officers who have written a report to the 
best of their ability. I want to commend them for the 
professional way in which they have done this to the best of 
their ability. It is not easy, I am sure, to reach judgments, 
regardless of the judgments in this case. But you two have done 
the best you can.
    I want to commend you for not just your report, but, very 
frankly, for the slides, which I think helped us to go through 
this. Except for the inability to read that one number in the 
lower right-hand corner, these slides were extremely helpful to 
us. I just want to add my thanks. Thank you all, you too, 
General Craddock, for being here this morning.
    Chairman Warner. Thank you.
    Now, General, if you would like to put the names of your 
colleagues in the record?
    General Craddock. Thank you, Mr. Chairman. I will introduce 
my team: My Executive Officer, Colonel Milo Miles; Staff Judge 
Advocate, Captain Marty Evans; Public Affairs Officer, Colonel 
Dave McWilliams; Colonel Jorge Silveira there in the second 
row, who is the Chief of my Actions Group; and Colonel Rob 
Levinson, who is my Head Representative from the Washington 
Field Office.
    I will turn it over to General Schmidt.
    General Schmidt. Sir, I would like to start with General 
Furlow. He and four members spent 2 months pulling this 
together, doing the majority, the vast majority, of the 
interviews. When I came in it was because there were some 
general officers to interview and eventually we got to seven of 
those.
    John, go ahead and introduce your original team.
    General Furlow. Sir, in addition to myself, there was 
Colonel Alex Carruther, who is not here today; Sergeant Major 
Beverly James, who is also not here today. Who is here today is 
Captain Harvey ``Chip'' Jarvis, right back here.
    Thank you, sir.
    Chairman Warner. Thank you very much.
    General Schmidt. Sir, the team I brought: I drafted my 
command's Staff Judge Advocate, Colonel Joe Heimann. He now 
works for Chairman's Legal, and we have borrowed him and he has 
put in yeoman's work on this.
    My Commander Action Group Chief, Lieutenant Colonel Danny 
Wolf, has done great work. He typed past midnight last night 
making these slides to put this together. My Executive Officer, 
Scott Cirrone, is off doing personnel duty. He is an A-10 
fighter pilot. Again, this is not our day job. He did great 
work. The logistics was pulled together by my Aide, Captain 
Hector Lopez, everything from getting our airlift to the paper, 
the sending of things over here, to getting us sandwiches with 
extra jalapenos because we missed those from Arizona.
    They did yeoman work. The team worked together. To step in 
for 1 month of a 3-month investigation, John Furlow did an 
absolutely outstanding job.
    Chairman Warner. I thank all of you very much.
    We have had an excellent hearing. I felt it very important 
for this committee to have direct access to each of you in the 
context of a hearing, which we have had today, for it to be 
subjected to such cross-examining and expressions of viewpoints 
as the members may wish to make, and indeed that did take 
place.
    Thank you very much. We are adjourned; we will now 
reconvene in closed session in room SR-222.
    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John McCain

                    SCOPE OF ARMY FIELD MANUAL 34-52

    1. Senator McCain. General Craddock, in the hearing before the 
Senate Armed Services Committee on July 13, 2005, you asserted that the 
following interrogation techniques are approved in the Army Field 
Manual (FM) on Interrogation 34-52, under the approach called ``Ego 
Down and Futility'':

        - forcing a man to wear a woman's bra and placing underwear on 
        his head;
        - tying a leash to the subject and leading him around the room, 
        forcing him to perform dog tricks;
        - standing naked for several minutes with female interrogators 
        present; and
        - pouring water over their heads.

    Is it your opinion that the FM authorizes or in some way allows 
these examples to be used during interrogations by Defense Department 
personnel? If it does, or implies that these techniques are OK, should 
the manual be changed? Please fully explain your answer.
    General Craddock. I approved the investigation's finding that the 
first three techniques listed above were authorized under FM 34-52, 
Intelligence Interrogation. FM 34-52 provides broad guidance on a 
number of techniques such as ``ego down'' or ``futility.'' FM 34-52 
does not specify each and every application that is authorized under a 
particular technique. At Joint Task Force Guantanamo (JTF Gitmo), the 
interrogation team devised specific applications for one particular 
detainee--Mohammed al-Qahtani. Al-Qahtani had previously resisted 
conventional criminal investigation interrogation techniques for 
months. These specific applications, developed by the interrogation 
team, under the ego down and futility techniques were creative and 
aggressive. However, these applications did not violate any U.S. law or 
policy.
    FM 34-52 was designed to provide guidance to traditional, state 
against state armed conflicts where the Geneva Conventions are fully 
applicable to enemy prisoners of war. I believe FM 34-52, and 
Department of Defense policy or doctrine in related areas, should be 
updated to reflect the new phenomenon of conflict against enemy 
combatants. In fact, I approved several recommendations from the 
investigation to this effect and I forwarded the investigation report 
to the Department of Defense for further consideration of these 
matters.
    With regard to the fourth technique listed above, I recall making 
no assertion at the hearing that the technique was approved or not 
approved. I only recall a question posed by Senator McCain to me about 
``water-boarding,'' a technique never approved for use.

                         RECOMMENDED REPRIMAND

    2. Senator McCain. General Craddock, one of the recommendations 
from this investigation was that Major General Miller should be held 
accountable for failing to supervise the interrogation of ISN 063 and 
should be admonished for that failure. But in your review of the 
investigation you disapproved of the recommendation. Why?
    General Craddock. I disapproved Recommendation No. 16, that Major 
General Miller be held accountable for failing to supervise the 
interrogation of al-Qahtani and be admonished for that failure because 
the interrogation of al-Qahtani did not result in any violation of U.S. 
law or policy and the degree of supervision provided by Major General 
Miller did not warrant admonishment under the circumstances. As the 
commander, even in the early days of his assignment, Major General 
Miller was responsible for the conduct of his subordinates. However, as 
all commanders must do to the extent they determine appropriate, Major 
General Miller relied on the judgment and experience of his people to 
carry out their duties in a manner that was both professional and 
authorized.
    The evidence shows that he was not misguided in his trust, since 
there was no finding that law or policy was violated. Major General 
Miller did supervise the interrogation in that he was aware of the most 
serious aspects of al-Qahtani's interrogation: the length of 
interrogation sessions, the number of days over which it was conducted, 
and the length of segregation from other detainees.
    Additionally, I think it is important to note that Major General 
Miller arrived in Gitmo for the first time when he assumed command on 4 
November 2002. Upon arrival, he assumed command of two organizations, 
JTF 160 and 170 that upon his arrival were merged into JTF Gitmo. Upon 
assuming command of JTF Gitmo, Major General Miller became responsible 
for a multitude of tasks that demanded his immediate attention: merging 
the two task forces into the one task force that would have a common 
operating system for both the interrogation element and the detention 
element; managing the construction of new facilities and the manning, 
equipping, training, and organizing of the force; developing standard 
operating procedures for and improving the cooperation between 
interagency interrogations; and, last but not least, improving the 
quality of life for the military personnel of JTF Gitmo.
    Additionally, the report of investigation found that the cumulative 
efforts of some interrogation applications led to abusive and degrading 
treatment. However, the report did not identify which applications or 
frequency of any or all applications were contributory, which in my 
judgment was essential to a finding of accountability.

                            FBI ALLEGATIONS

    3. Senator McCain. General Craddock, what was the Pentagon's 
initial response to the FBI's allegations? How were they handled 
throughout the chain of command?
    General Craddock. An FBI official wrote a letter to the Army 
Provost Marshal General on 14 July 2004 regarding ``suspected 
mistreatment of detainees'' at JTF Gitmo, specifically referring to 
three incidents allegedly involving ``highly aggressive interrogation 
techniques.'' The Army Criminal Investigative Division forwarded the 
letter to the U.S. Southern Command on 9 August 2004. My Staff Judge 
Advocate then coordinated with JTF Gitmo to determine what 
investigation, if any, had been conducted. Coordination with JTF Gitmo 
revealed the following. The 14 July 2004 letter referred to three 
incidents. Of these incidents, the Army's Criminal Investigative 
Division investigated one of the incidents shortly after the 14 July 
2004 letter (allegations of abuse by an interrogator); JTF Gitmo 
investigated another incident at the time of the incident (the ``duct 
tape'' incident, October 2002); and the third incident (the overall 
interrogation of al-Qahtani) was not investigated by JTF Gitmo because 
the allegation did not appear to raise any allegations that went beyond 
techniques authorized for al-Qahtani's interrogation. My Staff Judge 
Advocate office provided this information to the investigation team led 
by Vice Admiral Albert T. Church on 27 August 2004, for their 
consideration in preparing a Secretary of Defense directed report on 
all Department of Defense detainee operations.
    In December 2004, the American Civil Liberties Union (ACLU) 
published FBI e-mails that detailed additional allegations of detainee 
abuse that were not contained in the FBI letter from July 2004. I had 
no knowledge of these additional FBI allegations until December 2004. 
Shortly after hearing of these additional FBI allegations, I directed 
an investigation into all of the FBI allegations on 24 December 2004.

    4. Senator McCain. General Craddock, the Pentagon has repeatedly 
assured this committee that all serious allegations of abuse are 
investigated. Yet no investigation was launched into the FBI 
allegations until the e-mails were released to the ACLU. The government 
had all of this information long before it was made public, so why was 
there no investigation?
    General Craddock. As discussed above, until the ACLU released the 
FBI documents in December 2004, I had no knowledge of the additional 
allegations. The Vice Admiral Church Report found that the FBI e-mails 
were not known to any other DOD authorities either. Once I reviewed the 
FBI e-mails, I determined that the allegations merited an investigation 
to establish the truth and ascertain what, if any, actions needed to be 
taken. Accordingly, I directed an investigation in December 2004.

                               PUNISHMENT

    5. Senator McCain. General Craddock, this most recent investigation 
into the interrogations of detainees in Gitmo comes to the conclusion 
that there were violations of Secretary of Defense guidance and the 
Uniform Code of Military Justice (UCMJ). Have those involved in the 
violations been punished in any way?
    General Craddock. The investigation substantiated several 
allegations and assessed what disciplinary action, if any, had been 
taken, and recommended whether additional disciplinary action was 
needed.
Substantiated allegations:
    A female interrogator touched a detainee and ran her fingers 
through the detainee's hair. The interrogation supervisor was given a 
written letter of admonishment for failure to document the techniques 
to be implemented by the interrogator prior to the interrogation.
    A female interrogator told a detainee that red ink on her hand was 
menstrual blood and then the interrogator wiped her hand on the 
detainee's arm. As the technique was not approved in advance, the 
interrogator's supervisor verbally reprimanded the interrogator for the 
incident. No formal disciplinary action was taken. The investigation 
viewed the command action as inadequate. However, noting the time that 
had lapsed and the fact that the interrogator had left the service, the 
investigation recommended closing this allegation.
    The Interrogation Control Element (ICE) Chief directed that a 
military police guard place duct tape on a detainee's mouth to quiet 
the detainee. The JTF Gitmo Staff Judge Advocate verbally admonished 
the ICE Chief, but no formal command disciplinary action took place. 
The investigation viewed the admonishment as inadequate and recommended 
the ICE Chief be formally admonished or reprimanded. I approved the 
investigation's finding and recommendation on this allegation and I 
provided the investigation report to the Director, Joint Staff for 
forwarding to the ICE Chief's current commander or supervisor for 
whatever action, if any, he/she deems appropriate.
    There were two incidents of ``short shackling,'' chaining a 
detainee to the floor in a manner requiring the detainee to crouch 
uncomfortably or lay in the fetal position. However, the investigation 
could not find any evidence to assign individual responsibility for 
these incidents. As JTF Gitmo now prohibits this practice, the 
investigation recommended closing the allegation.
    A Navy Lieutenant Commander communicated a threat to a detainee. 
The investigation recommended the Lieutenant Commander's new commander 
take disciplinary action. I modified the recommendation by requesting 
the Naval Criminal Investigative Service conduct further investigation 
into the matter before forwarding the report to the current commander 
of the officer for action as the commander deems appropriate. I did so 
because the Lieutenant Commander alleged he was given permission to use 
this technique by his first-line leader and his Staff Judge Advocate 
representative. When questioned a second time about this incident, both 
of those individuals refused to talk to the investigating officer. In 
my judgment, to be fair to the Lieutenant Commander, a criminal 
investigation is warranted (as communicating a threat is a UCMJ 
violation) .

                          APPROVED TECHNIQUES

    6. Senator McCain. Lieutenant General Schmidt, one FBI agent stated 
that he saw detainees held in rooms so frigid that they were ``left 
shaking in cold'' and an agent saw a detainee ``almost unconscious in a 
room with a temperature probably over 100 degrees'' next to a pile of 
his own hair. I realize much of what we may ask about Gitmo is covered 
in your investigation, but for the benefit of the American public, 
please allow these questions. Are these painful descriptions of the 
technique known as ``environmental manipulation,'' in other words, 
using extremes of hot and cold to induce suffering and stress?
    General Schmidt. The Secretary of Defense specifically approved the 
technique of environmental manipulation in the 16 April 2003 
memorandum, Counter-Resistance Techniques in the War on Terrorism, 
which provides guidance on authorized interrogation techniques. This 
technique was approved to alter the environment to create moderate 
discomfort.
    The Secretary of Defense memorandum further outlines that: 
conditions would not be such that they would injure the detainee; and 
the detainee would be accompanied by interrogator at all times. This 
application must adhere to the general safeguards outlined by the 
memorandum, including implementation by a trained interrogator 
exercising an approved interrogation plan and applied in a humane 
manner.

    7. Senator McCain. Lieutenant General Schmidt, are such techniques 
now in use or have they been approved for use at Gitmo or in Iraq?
    General Schmidt. The technique environmental manipulation is still 
an approved technique in accordance with the Secretary of Defense 
memorandum dated 16 April 2003. Likewise, the current JTF Gitmo 
Standard Operating Procedure permits interrogators to adjust the 
temperature.
    Techniques approved or not approved for use in Iraq were outside 
the scope of this investigation, and I am not qualified to speculate on 
interrogation techniques conducted with respect to Iraq.

    8. Senator McCain. Lieutenant General Schmidt, how extensively were 
these kinds of techniques used at Gitmo?
    General Schmidt. The investigation disclosed environmental 
manipulation was used on a number of occasions. The investigation 
confirmed this technique was used at least five times.

    9. Senator McCain. Lieutenant General Schmidt, I understand that 
these techniques were officially approved by the Secretary for a period 
of only a few weeks between December 2002 and January 2003. The 
Schlesinger panel was told that they were used in Gitmo on ``only two 
detainees.'' But the FBI e-mails suggest they were used much more 
frequently, and over a longer time period. If so, then when did this 
begin? Under whose authority were the techniques used?
    General Schmidt. On 16 April 2003, the Secretary of Defense 
memorandum specifically approved the technique of environmental 
manipulation; it remains as an approved technique in accordance with 
that guidance. To the best we could determine, on several occasions 
during 2002 and 2003, interrogators would adjust the air conditioner to 
make the detainee uncomfortable; the application of this technique was 
not limited to the two high value detainees.
    The approval authority for the use of environmental manipulation is 
the team chief supervising the interrogators.

    10. Senator McCain. Lieutenant General Schmidt, was the Schlesinger 
panel misled and, if so, by whom, and why?
    General Schmidt. My investigation was a limited AR 15-6 
factfinding, independent investigation. I did not attempt to reconcile 
my investigation with any other investigation. The Schlesinger question 
is outside the scope of my investigation, and I am not qualified to 
speculate on the intent of those responses to the Schlesinger panel.

                            STRESS POSITIONS

    11. Senator McCain. Lieutenant General Schmidt, according to press 
reports, FBI e-mails described detainees ``chained hand and foot in a 
fetal position on the floor, with no chair, food or water,'' who had 
``urinated or defecated on themselves and had been left there for 18-24 
hours.'' I would hope that this is an approach we would all find 
unacceptable. But is this simply a vivid description of a ``stress 
position,'' a technique that was approved for use at Gitmo and Iraq at 
various times or does this differ in character from the stress 
positions that were approved?
    General Schmidt. We found no evidence of detainees being deprived 
of food and water. We did find that military interrogators improperly 
chained detainees and placed them in a fetal position on the floor on 
at least two occasions; this was an unauthorized technique. We also 
found that ``short shackling'' was initially authorized as a force 
protection measure during the in-processing of detainees. However, 
since then, current JTF Gitmo leadership has verbally prohibited 
``short shackling.''
    Regarding the allegation by an agent who observed a detainee 
deprived of food and water while chained to the floor, we considered 
the agent's statement made in a 13 July 2004 e-mail and a 9 September 
2004 FBI telephonic interview. We made several efforts to conduct our 
own interview, but our FBI liaison continually advised us the agent was 
unavailable. (Brigadier General Furlow has been directed to seek FBI 
assistance in conducting interviews of FBI agents who were unavailable 
during the investigation.) During the course of our investigation, we 
were unable to corroborate any allegations that detainees had been 
denied food or water. Also, because of the inconsistencies in that 
agent's testimony and a lack of any other corroboration, we were unable 
to substantiate the second allegation.
    The use of stress positions, such as ``standing for a maximum of 4 
hours,'' was requested by Commander JTF Gitmo and authorized by the 
Secretary of Defense in the memorandum dated 2 December 2002; this 
authorization was rescinded 15 January 2003. The AR 15-6 found that a 
stress position described as ``chained hand and foot in a fetal 
position on the floor'' was never authorized.

                              USE OF DOGS

    12. Senator McCain. Lieutenant General Schmidt, a witness statement 
in the report states that using dogs as an interrogation technique was 
equal to the fear up technique listed in the Army FM. Does the Army FM 
34-52 permit the use of dogs as an interrogation technique in any way?
    General Schmidt. The AR 15-6 concluded that Army FM 34-52 does not 
permit the use of dogs in interrogation. The Secretary of Defense did 
approve the use of dogs to exploit individual phobias in the memorandum 
dated 2 December 2002, later rescinded by the 15 January 2003 
memorandum.

                           ARMY FIELD MANUAL

    13. Senator McCain. Lieutenant General Schmidt, are the detention 
and interrogation techniques employed at Gitmo authorized in the Army 
FM?
    General Schmidt. This AR 15-6 found a very small number of 
incidents of abuse during detention operations; all of which were 
appropriately addressed by the command. Detention operations were not 
the focus of this investigation.
    All current interrogation techniques employed by JTF Gitmo are 
authorized by the Secretary of Defense memorandum dated 16 April 2003. 
Army FM 34-52 provides guidance on many of these Secretary of Defense 
approved techniques. In deciding if an interrogator's actions were 
authorized, the 15-6 found it to be authorized if the approach was 
permitted by FM 34-52 or SECDEF guidance, and did not violate the 
requirement that it be done humanely. We found a technique to be 
unauthorized if it clearly exceeded the reasonable bounds of the 
defined or permitted approaches in the FM or SECDEF guidance. The AR 
15-6 did not consider the restrictions of the Geneva Conventions 
outlined in the FM in deciding if a technique was unauthorized because 
the Geneva Conventions did not apply to these interrogations.
    The AR 15-6 investigation found only three interrogation techniques 
that were never authorized: 1) on at least two occasions between 
February 2002 and February 2003, two detainees were ``short shackled'' 
to the eye-bolt on the floor in the interrogation room; 2) sometime in 
October 2002 duct tape was used to ``quiet'' a detainee; and 3) 
military interrogators threatened the subject of the second special 
interrogation and his family.

    14. Senator McCain. Lieutenant General Schmidt, are other detention 
and interrogation techniques also authorized and if so, can you 
describe them?
    General Schmidt. Regarding interrogations at JTF Gitmo, the only 
techniques ever authorized were from Army FM 34-52 and the Secretary of 
Defense memorandums dated 2 December 2002 and 16 April 2003 (found at 
exhibits 15 and 16, respectively).
    All current interrogation techniques employed at Gitmo are approved 
by the Secretary of Defense memorandum dated 16 April 2003. Army FM 34-
52 provides guidance on many of these Secretary of Defense approved 
techniques. The details pertaining to the approved techniques, 
application, and general safeguards are addressed in the attached 
memorandum.
    Further, specific guidelines are in place from the Commander, 
United States Southern Command, and Commander, JTF Gitmo that further 
delineate and restrict the application of approved techniques from the 
Secretary of Defense memorandum dated 16 April 2003.
                                 ______
                                 
             Questions Submitted by Senator James M. Inhofe

                   ACTS INVESTIGATED AGAINST DETAINEE

    15. Senator Inhofe. General Craddock, Lieutenant General Schmidt, 
and Brigadier General Furlow, I maintain these are detainees we are 
talking about here--with knowledge about terrorists' cells and 
operations that is useful to the U.S. in understanding the actions of 
those who seek to do us harm, of destroying our way of life. They are 
not to be coddled, not if we are to get access to the information they 
possess, information that will help us in their defeat. I remain, as I 
did more than a year ago when we started with this subject--outraged at 
the outrage!
    What other country would freely discuss interrogation techniques 
used against high value intelligence detainees during a time of war 
when suicide bombers are killing our fellow citizens and those of our 
allies? Why would we freely explain the limitations placed on our 
interrogators when we know that our enemy trains his terrorists in 
methods to defeat our interrogations? We are handing him new 
information to train future terrorists. What damage are we doing to our 
war effort by parading these relatively minor infractions before the 
press and the world again and again while our soldiers risk there lives 
daily and are given no mercy by their enemy?
    We must be careful because our enemies exploit everything to their 
advantage. In a translated message picked up from Al-Zarqawi to his 
followers, he said: ``the Americans are living their worst days in Iraq 
now, even Members of Congress have announced that the U.S. is losing 
the war in Iraq.'' He assured them ``We will conquer Iraq and then God 
willing head on to Jerusalem.'' He called President Bush ``a fool'' and 
said that his God is ``anti-Christ.'' Our enemy is listening. Let's be 
careful about what he hears.
    We find ourselves holding yet another hearing on detainee abuse. 
The investigation you have completed seems to show that after 3 years 
and 24,000 interrogations only 3 acts are in violation of approved 
interrogation techniques authorized by FM 34-52 and DOD guidance. One 
detainee had duct tape used to secure his mouth and jaw because he 
wouldn't stop yelling at the top of his lungs as he tried to insight an 
uprising in the interrogations area. Another was threatened, yet 
nothing was done to him or his family and another was tricked into 
believing that red ink was another substance that was very offensive to 
him.
    When you contrast these interrogation techniques with those used by 
other countries, those fighting us, those used by us in previous wars, 
it is hard to understand why we are so wrapped up in this 
investigation. Further, you have determined in all but a couple cases, 
appropriate disciplinary action was taken and in all cases no further 
incidents occurred. Add to that, the fact that most, if not all, these 
incidents are at least a year old, and I am very impressed with the way 
the military, the FBI, and other agencies have conducted themselves.
    This report shows me an incredible amount of restraint and 
discipline was present at Gitmo. Even the small infractions found, were 
found by our own government, corrected and now reported. We have 
nothing to be ashamed of. What other country, attacked as we were, 
would exercise this degree of restraint and self-criticism? I would 
like each of you to give your personal professional opinion to the 
committee.
    General Craddock. In my opinion, very few--if any--countries in the 
world today--attacked as we were--would demonstrate the restraint and 
transparency of detainee operations as the United States has. The fact 
is we started this venture of terrorist/enemy combatant detainee 
operations with no precedent and little relevant policy. While some in 
our government focused on interrogations yielding viable judicial 
proceedings, others--DOD--focused on gaining intelligence to prevent 
another attack. As we know now, the two were sometimes at odds. During 
this process, standards for interrogation and treatment of detainees 
were codified. Where rules were violated by guards or interrogators, 
punishment and/or corrective action was taken. This process has matured 
over time and today is consistent in application and enforcement. Quite 
frankly, when I visit Gitmo I marvel at the professionalism, 
dedication, and restraint our servicemembers demonstrate in dealing 
with these detainees on a daily basis. I only hope that if I were in 
their shoes I could be that good!
    In performing our intelligence mission, we continue to emphasize 
the U.S. Government's commitment to treat detainees ``humanely, and to 
the extent appropriate and consistent with military necessity, in a 
manner consistent with the principles of Geneva.'' Along these lines, 
we have a solid working relationship with the International Committee 
of the Red Cross. We take their recommendations seriously and act upon 
them when appropriate. All credible allegations of abuse have been 
investigated and appropriate disciplinary action was taken against 
those who have engaged in misconduct.
    General Schmidt. JTF Gitmo interrogations number more than 24,000 
over a 3-year period, and we found only three interrogation acts in 
violation of authorized policy. This investigation--one of many--was 
briefed in an open forum to scrutinize ourselves to ensure we act in a 
responsible manner, now and in the future. Considering the timing of 
these events relative to September 11 and the operatives that we had 
detained, the context of the environment may lead some to assume 
``military necessity'' allowed interrogations to employ cruel, 
inhumane, or tortuous techniques. It did not, and incredible restraint 
was, and is, demonstrated by our troops in this important endeavor. The 
very few instances of unauthorized use of interrogation techniques 
clearly highlight the professionalism and humane standards of our 
soldiers.
    General Furlow. I was appointed to investigate FBI allegations of 
detainee abuse during interrogation operations at JTF Gitmo on 28 
December 2004. During the course of that investigation, we uncovered 
only three acts that violated authorized interrogation policy. It is 
not for me to conclude whether that is an example of ``restraint.'' 
However, I believe the small number of violations versus the large 
number of interrogations (over 24,000) speak forcefully for kind of 
soldiers (diligent, dedicated and motivated) who are fighting the war 
on terrorism. I was proud of my country and military prior to my 
appointment as an investigating officer and remain as proud, or 
prouder, of my country and military's willingness to reflect and review 
and recommend alterations to current operations based on past 
experiences.

    16. Senator Inhofe. General Craddock, Lieutenant General Schmidt, 
and Brigadier General Furlow, what was the worst substantiated incident 
of inappropriate use of interrogation techniques you investigated?
    General Craddock. As a combatant commander with military justice 
authority, characterizing one particular incident as ``the worst'' 
could be construed as a form of unlawful command influence if an 
incident is still being investigated or if a similar type of incident 
occurs in the future. Therefore, I do not believe it is appropriate to 
respond to this specific question.
    General Schmidt. In my opinion, I believe the worst substantiated 
incident of interrogation techniques was that military interrogators 
threatened the subject of the second special interrogation and his 
family. Further, the interrogation logs clearly indicate that the 
interrogation went well beyond the ``threat to detain,'' and in fact 
was a threat to the subject of the second special interrogation and his 
family that violated the UCMJ, article 134 communicating a threat. I 
feel this was the most serious incident because it violated the UCMJ.
    General Furlow. I believe the worst substantiated incident of 
inappropriate use of interrogation techniques was described in our 
report on pages 24-26. The report found in pertinent part ``the Special 
Team Chief threatened the subject of the second special interrogation 
and his family. . .'' A review of ``the interrogation logs clearly 
indicate that the interrogation went well beyond the `threat to detain. 
. .' and in fact was a threat to the subject of the second special 
interrogation and his family that violated the UCMJ, article 134 
communicating a threat.''

    17. Senator Inhofe. General Craddock, Lieutenant General Schmidt, 
and Brigadier General Furlow, was appropriate disciplinary action taken 
in a timely manner in each case?
    General Craddock. For the same reasons I expressed in response to 
Question #16, I do not believe it is appropriate to respond to this 
specific question.
    General Schmidt and General Furlow. On all but three occasions, the 
AR 15-6 found that appropriate disciplinary action was taken in a 
timely manner. The 15-6 did find three cases that, in our opinion, 
warranted additional action: 1) the use of duct tape was addressed with 
an inadequate response--recommend admonish or reprimand; 2) the failure 
to monitor ISN 063--recommend admonish; and 3) communicating a threat 
to a second high value detainee--recommend discipline.

    18. Senator Inhofe. General Craddock, Lieutenant General Schmidt, 
and Brigadier General Furlow, have the infractions found been corrected 
so they will not occur again and most importantly, are the DOD 
guidelines, as currently published along with the guidelines published 
in FM 34-52, appropriate to allow interrogators to get valuable 
intelligence information while not crossing the line from interrogation 
to abuse?
    General Craddock. The investigation found that there was no 
evidence of the substantiated allegations against individuals occurring 
again. In this respect, I believe the infractions have been corrected.
    The Secretary of Defense 16 April 2003 memorandum, Counter-
resistance Techniques in the War on Terrorism, is the current authority 
for interrogation techniques at JTF Gitmo. The Secretary of Defense 
memorandum draws heavily (although not exclusively) upon FM 34-52. FM 
34-52, Intelligence Interrogation, was designed to provide guidance to 
traditional, state against state armed conflicts where the Geneva 
Conventions are fully applicable to enemy prisoners of war. I believe 
FM 34-52, and Department of Defense policy or doctrine in related 
areas, should be updated to reflect the new phenomenon of conflict 
against enemy combatants. In fact, I approved several recommendations 
from the investigation to this effect and I forwarded the investigation 
report to the Department of Defense for further consideration of these 
matters.
    General Schmidt and General Furlow. The current JTF Gitmo Standard 
Operating Procedures provide specific guidance and controls on all 
interrogations, consistent with the Secretary of Defense memorandum 
dated 16 April 2003.
    Regarding the larger question of the line between interrogation, 
intelligence collection, and detainee abuse, it was not within the 
charter of the AR 15-6 to draw conclusions on these points. However, 
the investigation did disclose that additional guidance is needed in 
this area; therefore, the report has five recommendations.

         (a) Recommendation #23. Recommend a policy-level review and 
        determination of the status and treatment of all detainees, 
        when not classified as EPWs. This review needs to particularly 
        focus on the definitions of humane treatment, military 
        necessity, and proper employment of interrogation techniques 
        (e.g. boundaries or extremes);
         (b) Recommendation #24. Recommend study of the DOD authorized 
        interrogation techniques to establish a framework for 
        evaluating their cumulative impact in relation to the 
        obligation to treat detainees humanely;
         (c) Recommendation #25. Recommend a reevaluation of the DOD 
        and interagency interrogation training consistent with the new 
        realities of the requirements of the global war on terror;
         (d) Recommendation #26. Recommend a policy-level determination 
        on role of military police in ``setting the conditions'' for 
        intelligence gathering and interrogation of detainees at both 
        the tactical level and strategic level facilities; and
         (e) Recommendation #27. Recommend an interagency policy review 
        to establish ``standards'' for interrogations when multiple 
        agencies and interrogation objectives are involved. Particular 
        emphasis should be placed on setting policy for who has 
        priority as the lead agency, the specific boundaries for the 
        authorized techniques in cases with multiple agencies involved, 
        a central ``data-base'' for all intelligence gathered at a 
        detention facility, and procedures for record keeping to 
        include historical, litigation support, lessons learned, and 
        successful/unsuccessful intelligence gathering techniques.

    19. Senator Inhofe. Lieutenant General Schmidt and Brigadier 
General Furlow, many different investigations have been conducted into 
allegations of detainee abuse while they are in the custody of the 
United States. While there have been these alleged incidents, many were 
found to be ungrounded. While the two of you conducted your 
investigation, you have been called upon to determine to what extent 
these allegations were accurate. From what I have seen on my visit to 
Gitmo and have been briefed by the military leadership, it appears that 
what has been reported by the media has been blown far out of 
proportion. In cases where the military has found any mistreatment of 
detainees it has disciplined the responsible individuals accordingly 
and improved its procedures to prevent recurrence. I would like you to 
comment on what has the most egregious violation of a detainee that you 
came across in your investigation, the frequency of any such action, 
and was such an action deemed in your view to be an anomaly?
    General Schmidt. In my opinion, I believe the most egregious 
violation of a detainee, as stated in the report, was that military 
interrogators threatened the subject of the second special 
interrogation and his family. Further, the interrogation logs clearly 
indicate that the interrogation went well beyond the ``threat to 
detain,'' and in fact was a threat to the subject of the second special 
interrogation and his family that violated the UCMJ, article 134 
communicating a threat. I feel this was the most serious incident 
because it violated the UCMJ.
    We did not discover any other instances of an interrogator 
communicating a threat to a detainee. Therefore, I conclude that this 
was an isolated occurrence that developed as interrogators dealt with 
one of two high value detainees known to possess information critical 
to the war on terror.
    General Furlow. I believe the most egregious violation of a 
detainee during the implementation of an interrogation technique was 
described in our report on pages 24-26. The report found in pertinent 
part ``the Special Team Chief threatened the subject of the second 
special interrogation and his family. . .'' A review of ``the 
interrogation logs clearly indicate that the interrogation went well 
beyond the `threat to detain. . .' and in fact was a threat to the 
subject of the second special interrogation and his family that 
violated the UCMJ, article 134 communicating a threat.''
    We did not discover any other instances of an interrogator 
communicating a threat to a detainee; therefore, based on our 
investigation this was an isolated occurrence.

                   GITMO PRISONERS--CHARGE OR RELEASE

    20. Senator Inhofe. General Craddock, a lot of controversy has 
surrounded the Gitmo prisoners--inflammatory statements have been made 
and inflammatory articles have been written. Many claim that we should 
charge these prisoners or just let them go. This is of course the same 
group of people who believed we should treat terrorism as a crime and 
not as a war. This is the same group of people who watched as Osama Bin 
Laden and his thugs attacked American interests repeatedly and simply 
sent the FBI to investigate and try to bring these people to justice, 
after the fact.
    In a Washington Post article dated October 22, 2004, John Mintz 
wrote: ``At least 10 detainees released from the Guantanamo Bay prison 
after U.S. officials concluded they posed little threat have been 
recaptured or killed fighting U.S. or coalition forces in Pakistan and 
Afghanistan. . . One of the recaptured prisoners is still at large 
after taking leadership of a militant faction in Pakistan and aligning 
himself with al Qaeda. . . In telephone calls to Pakistani reporters, 
he has bragged that he tricked his U.S. interrogators into believing he 
was someone else.''
    The reporter further reported about one former detainee named 
Mehsud: ``Mehsud said he spent 2 years at Guantanamo Bay after being 
captured in 2002 in Afghanistan fighting alongside the Taliban. At the 
time he was carrying a false Afghan identity card, and while in custody 
he maintained the fiction that he was an innocent Afghan tribesman, he 
said, U.S. officials never realized he was a Pakistani with deep ties 
to militants in both countries. . .''
    Three weeks ago, Attorney General Alberto Gonzales said, ``There 
are 12 people that we have released that we know have come back and 
fought against America because they have been recaptured or killed on 
the battlefield. . .'' I would like to hear your view of this debate. 
Should these men be charged or released?
    General Craddock. The fact that released detainees have taken up 
arms again and have tried to kill U.S. or coalition forces reflects the 
nature of many of the enemy combatant detainees we hold at JTF Gitmo. 
They are a fierce and ruthless enemy. Having said that, DOD has a 
system in place where the Office for the Administrative Review of the 
Detention of Enemy Combatants (OARDEC) conducts Administrative Review 
Boards (ARB) to determine whether enemy combatants should be released, 
transferred, or remain in detention. The ARB assesses if enemy 
combatants continue to pose threats to U.S. or allied forces or 
interests. Several DOD organizations and other Federal agencies, as 
well as the nation of the enemy combatant, provide input to the ARB. 
The ARB holds a hearing and makes a recommendation to the Designated 
Civilian Official (DCO), who makes the final decision. As I am not 
involved in the ARB process, and do not have access to all of the 
information the ARB and DCO consider, I cannot comment on any specific 
cases. But the fact remains as is stated by the Attorney General--we 
have erred in 12 assessments to date--and that is far too many.

    21. Senator Inhofe. General Craddock, do you believe these men 
would return to theater to cause the U.S. and coalition forces 
additional trouble?
    General Craddock. The ARB and DCO fully consider the threat enemy 
combatants may pose. However, many detainees at JTF Gitmo have been 
taught to be deceptive and a detainee may occasionally succeed in 
persuading an ARB or the DCO that the detainee's release is warranted. 
A released detainee could return to theater and cause U.S. and 
coalition forces trouble (as some have done).
                                 ______
                                 
            Questions Submitted by Senator Edward M. Kennedy

                            SYSTEMIC PROBLEM

    22. Senator Kennedy. General Craddock, since allegations of abuse 
became public over a year ago, we have heard the Pentagon use the term 
``a few bad apples'' and only hold accountability at lower levels of 
the chain of command. The similarities that you, Lieutenant General 
Schmidt, and Brigadier General Furlow acknowledged finding between 
treatments at Abu Ghraib and Gitmo (such as the use of women's 
lingerie, leashes, and dogs) indicate that these few, lower ranking 
interrogators and military police are taking the same actions, 
stationed half way around the world from one another.
    If lower ranking interrogators and military servicemembers deployed 
to different corners of the earth are taking similar actions, is it 
possible that the true culpability for these ``bad acts'' lies further 
up the chain of command?
    General Craddock. There are important differences between JTF Gitmo 
and Abu Gharib. Because the detainees at JTF Gitmo are unlawful enemy 
combatants who are not entitled to protection under the Geneva 
Conventions as enemy prisoners of war, different legal standards apply. 
OSD approved certain interrogation techniques that applied only to 
unlawful enemy combatants detained at JTF Gitmo. These techniques were 
used against al-Qahtani, a high value detainee, who is believed to have 
been al Qaeda's intended 20th highjacker for the September 11 terrorist 
attacks on our Nation. The techniques used against al-Qahtani had been 
approved by the Secretary of Defense and the specific applications of 
these techniques were carefully planned and executed under closely 
controlled conditions. The techniques were designed to counter al-
Qahtani's long resistance to more conventional interrogation 
techniques. The intent in using these techniques was to use legally 
permissible methods to gain intelligence from a key al Qaeda member, 
intelligence that could save lives.
    In contrast, the conflict in Iraq is governed by the Geneva 
Conventions. OSD never approved the use of JTF Gitmo authorized 
interrogation techniques in the Iraq theater. At JTF Gitmo, the 
techniques and their applications were in accordance with law and 
policy. At Abu Ghraib, guards--not interrogators--engaged in misconduct 
outside of approved interrogation plans and without legal authority. 
While there may have been some soldiers who served at JTF Gitmo and 
later informally told persons at Abu Ghraib about JTF Gitmo 
interrogation techniques/applications, I do not believe that there was 
any policy migration intended or authorized at any level.

         DEBATES BETWEEN THE FBI AND THE DEPARTMENT OF DEFENSE

    23. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, in a letter to General Donald J. Ryder, the Deputy 
Assistant Director of the FBI's Counterterrorism Division, T.J. 
Harrington, stated that a representative of the FBI's General Counsel 
Office spoke to two senior members of the Department of Defense Office 
of the General Counsel: the Principal Deputy General Counsel, and the 
Deputy General Counsel for Intelligence.
    During the course of your investigation, did you find that other 
senior Pentagon officials knew of the dispute between the FBI and DOD 
at or around the time of that meeting and if so, who?
    General Schmidt and General Furlow. The AR 15-6 team was directed 
to investigate FBI allegations of detainee abuse during interrogation 
operations at JTF Gitmo. This question is the beyond the scope of the 
AR 15-6 investigation.

    24. Senator Kennnedy. Lieutenant General Schmidt and Brigadier 
General Furlow, your report was specifically tasked with addressing the 
allegations contained in the FBI e-mails. Along with those allegations, 
you testified that there was active disagreement between the FBI and 
the DOD about proper policies and procedures. General Craddock and 
Lieutenant General Schmidt testified that the substance of the 
disagreement was based on the difference between FBI and DOD missions.
    The December 5, 2003, FBI e-mail expressed concern that, given the 
nature of the tactics used by DOD interrogators in FBI uniforms, the 
FBI would be publicly admonished for DOD actions. The author was 
clearly concerned about the use of ``torture techniques,'' as he or she 
called them, for reasons other than admissibility of evidence in court.
    How did the DOD respond to FBI concerns that did not have to do 
with the admissibility of evidence, namely the torture allegations, and 
the accusation that FBI would have to ``hold the bag'' for DOD actions 
they did not condone?
    General Schmidt and General Furlow. First, the AR 15-6 
investigation did not find any evidence of the use of ``torture 
techniques'' being implemented at JTF Gitmo, nor did the investigation 
find any evidence of torture occurring at JTF Gitmo. Second, the AR 15-
6 did find fundamental disagreements between DOD and FBI interrogators 
concerning permissible interrogation techniques. This disagreement 
highlights the difference between the law enforcement mission of 
criminal prosecution and the need for actionable intelligence in the 
war on terror. The AR 15-6 concluded that the e-mail allegations arose 
because of these differences. While the DOD requires detainees to 
always be treated humanely, and to the extent appropriate and 
consistent with military necessity, in a manner consistent with the 
Geneva Conventions, the DOD's primary focus in interrogations is to 
obtain actionable intelligence.

                       IMPERSONATING FBI OFFICERS
    25. Senator Kennedy. General Craddock, why were DOD interrogators 
impersonating members of the Department of State and FBI? Who 
authorized that practice?
    General Craddock. The investigation found that the JTF Gitmo Chief 
of the Special Interrogation Team directed two interrogators to pose as 
State Department representatives during one interrogation and another 
interrogator to pose as an FBI agent on a different occasion. While 
using deception regarding one's identity is an authorized interrogation 
technique under FM 34-52, Intelligence Interrogation, an FBI supervisor 
at JTF Gitmo did not appreciate this practice as detainees were 
complaining during FBI interviews that FBI agents had already asked 
many of the same questions. Therefore, the FBI supervisor brought this 
to the attention of the appropriate JTF Gitmo officials and the 
practice was immediately stopped.

                   REPRIMANDING MAJOR GENERAL MILLER

    26. Senator Kennedy. General Craddock, the decision to reject the 
recommendation of the Schmidt-Furlow Report that Major General Miller 
be held accountable for failing to supervise the interrogation of ISN 
063 must have been a difficult one. While making your decision, did you 
discuss it with any other member of the military, or any other DOD 
official?
    General Craddock. The decision was mine. I did discuss the report 
and my options with regard to approving or disapproving the report's 
recommendations with my Staff Judge Advocate and my Deputy Staff Judge 
Advocate. I did not discuss this specific decision--nor any other to my 
recollection--with anyone above me in my chain of command either in the 
Chairman, Joint Chief of Staff's office or with the Secretary of 
Defense or Deputy Secretary of Defense. I did discuss the public 
``roll-out'' of this report--the process of briefings to Congress, 
press, etc.--during the time I was finalizing my decisions--with Pete 
Geren of OSD and Major General Mike Maples, Vice Director, Joint Staff. 
I do not recall any discussion with them with regard to my decisions. I 
recused myself from Lt. Gen. Schmidt's ``pre-brief'' on the 
investigation to the Secretary of Defense.

    27. Senator Kennedy. General Craddock, you stated that the reason 
you did not find Major General Miller accountable is that the actions 
taken under his watch were all legal. Is that a standard that is 
universally applied when the military considers accountability?
    General Craddock. No; military leaders often hold their 
subordinates responsible or accountable for matters that may be legal 
but still warrant some measure of counseling or other appropriate 
action. A leader's military judgment and experience plays a significant 
role in deciding when to take adverse action. I relied heavily upon my 
own personal experience and judgment in deciding not to recommend 
admonishing Major General Miller. While the fact that there was no 
finding that al-Qahtani's interrogation violated any U.S. law or policy 
was important, this was not the sole reason I chose not to recommend 
admonishing Major General Miller. I also believed that the degree of 
supervision provided by Major General Miller did not warrant 
admonishment under the circumstances. As I have stated, Major General 
Miller by his own admission, knew of several of the applications being 
used, applications which were used continuously over time and 
considered harsh and aggressive. Likewise, by his admission, he was not 
aware of other applications that were episodic in nature, not used 
during every interrogation period or every day, but labeled by some as 
degrading and abusive (and found by the report's investigators not to 
have violated law or policy).
    Additionally, Major General Miller had just taken over at Gitmo and 
had been given several major duties to accomplish--a fact which I also 
considered. Evaluating Major General Miller's level of supervision as a 
commander was, in this context, more of a leadership than a legal 
question.

    28. Senator Kennedy. General Craddock, were you assuming that as 
long as a military leader's subordinates are not acting in 
contravention to a written policy, that leader should not be held 
accountable?
    General Craddock. In this case, Major General Miller did not act in 
contravention of law, regulation, or policy. While others viewing this 
matter externally may not like Major General Miller's degree of 
supervision over the interrogation of al-Qahtani, I found no violation 
of law, regulation, or policy to hold Major General Miller accountable 
for.

                            DRAWING THE LINE

    29. Senator Kennedy. General Craddock, during the hearing there was 
some confusion over what actions would amount to contravention of U.S. 
policy. Although the Schmidt-Furlow Report concludes that the 
cumulative effect of the treatments of ISN 063 amounted to degrading 
and abusive treatment, you stated that you were unsure the treatment 
was degrading and abusive. Is that your position that, if each 
individual treatment or technique is allowable according to U.S. 
policy, then the cumulative outcome is necessarily not degrading and 
abusive?
    General Craddock. FM 34-52, Intelligence Interrogations, provides 
broad guidance on a number of techniques such as ``ego down'' or 
``futility.'' FM 34-52 does not specify each and every application that 
is authorized under a particular technique. In fact, FM 34-52 states: 
``To every approach technique, there are literally hundreds of possible 
variations, each of which can be developed for a specific situation or 
source. The variations are limited only by the interrogator's 
personality, experience, ingenuity, and imagination.''
    The investigation determined that the creative, aggressive, and 
persistent interrogation of al-Qahtani ``resulted in the cumulative 
effect being degrading and abusive treatment.'' However, the 
investigation could not tell me at what point the cumulative effect 
became degrading or abusive, or point to any violation of U.S. law or 
policy from the purported ``degrading and abusive treatment.'' Because 
that point was not identified, I approved the report's recommendation 
that a study be conducted of the DOD authorized interrogation 
techniques to establish a framework for evaluating their cumulative 
impact in relation to the obligation to treat detainees humanely. I 
forwarded this recommendation, along with others concerning policy 
level issues, to the Department of Defense for further consideration.

    30. Senator Kennedy. General Craddock, at what point would such 
treatment accumulate to being degrading and abusive?
    General Craddock. I do not know. While I cannot speculate on 
hypothetical questions going beyond the scope of the investigation, I 
did accept the investigation's recommendation to seek a policy level 
review of interrogation techniques with a view towards evaluating the 
cumulative impact of interrogation techniques. I forwarded this 
recommendation and the report to the Department of Defense for further 
consideration.

    31. Senator Kennedy. General Craddock, you stated that, in reading 
the report, you could not tell ``where to draw the line.'' Where would 
you draw the line?
    General Craddock. I will continue to follow the guidance in 
Secretary Rumsfeld's 16 April 2003 memorandum on interrogation 
techniques which provides: ``While techniques are considered 
individually within this analysis, it must be understood that in 
practice, techniques are usually used in combination; the cumulative 
effect of all techniques to be employed must be considered before any 
decisions are made regarding approval for particular situations.''

                         DEFINITION OF INHUMANE

    32. Senator Kennedy. General Schmidt, you say that none of the 
treatment ``crossed the line'' to be inhumane. Yet the report says we 
need a definition of humane treatment. You were able to determine that 
the treatment of ISN 063 did cross the line to being degrading and 
abusive. What definitions of degrading and abusive were you using?
    General Schmidt. I believe each individual has a personal 
definition of ``degrading'' and ``abusive,'' shaped by their 
environment and the context of the specific situation. For this 
investigation, I made a judgment based on my perception of how an 
average person would respond when confronted with the details of an 
applied technique. What I found in this investigation to be ``abusive 
and degrading'' was the cumulative effect of all the applications of 
authorized techniques; no limits were set on boundaries or extremes on 
the interrogations of two high value detainees.
    I did not consider the techniques inhumane because the baseline for 
treatment as outlined by the President's instruction regarding 
treatment of these detainees was not violated. Within the closely 
supervised, controlled environment, detainees were free from pain or 
injury, medical treatment was immediately available, and they were 
provided safe, secure facilities, food and water. Using my personal 
judgment, the creative, aggressive, and persistent interrogation of the 
subject of the first Special Interrogation Plan resulted in my 
determination that the cumulative effect being degrading and abusive 
treatment.

    33. Senator Kennedy. General Schmidt, how does degrading and 
abusive treatment differ from inhumane treatment?
    General Schmidt. Similar to the guidance given to interrogators 
from FM 34-52, I view these issues on a scale, with degrading and 
abusive treatment falling below the threshold of inhumane treatment. 
The only clear redline regards the definition of torture, and ``humane 
treatment,'' or lack thereof, having only general guidelines or 
parameters.
    This lack of a clear definition is in part the basis of 
Recommendation #23 from the report, which states, ``Recommend a policy-
level review and determination of the status and treatment of all 
detainees, when not classified as EPWs. This review needs to 
particularly focus on the definitions of humane treatment, military 
necessity, and proper employment of interrogation techniques. (e.g. 
boundaries or extremes).''

    34. Senator Kennedy. General Schmidt, how were you able to 
determine that none of the treatment was ``inhumane'' without a 
definition of ``inhumane''?
    General Schmidt. While I cannot precisely tell you when conduct 
becomes inhumane, the AR 15-6 concluded that the treatment did not rise 
to the level of inhumane. In evaluating humane treatment, I considered 
the President's mandate to treat the detainees humanely and the 
requirement to ensure detainees received adequate food, drinking water, 
clothing, shelter and medical treatment. Interrogations were conducted 
under controlled, supervised conditions with medical personnel present 
or immediately available at all times. Therefore, I concluded the 
treatment was not inhumane.

    35. Senator Kennedy. General Schmidt, in your testimony, you 
justified your statement that the treatment was not inhumane by citing 
the detainees' provision with food, water, shelter, clothing, and 
medical care. Was that your working definition of ``humane'' treatment?
    General Schmidt. In evaluating humane treatment, I considered the 
President's mandate to treat the detainees humanely and the requirement 
to ensure detainees received adequate food, drinking water, clothing, 
shelter and medical treatment. Interrogations were conducted under 
controlled, supervised conditions with medical personnel present or 
immediately available at all times.

    36. Senator Kennedy. General Schmidt, do you believe there is a 
distinction between inhumane treatment and inhuman treatment? How would 
you distinguish the two?
    General Schmidt. Practically speaking, the difference is slight. 
Inhuman and inhumane overlap in meaning to such an extent that it is 
impossible to sustain a distinction in their use. In general, inhuman 
refers to the characteristic of a person or action, whereas inhumane 
considers the same characteristic rather more in relation to the effect 
or consequences of the action on the sufferer. Bottom line is that 
inhumane, or inhuman, treatment regards a minimum standard that 
civilized people would set for treatment of any other persons in 
humanity. My opinion.

                           MILITARY NECESSITY

    37. Senator Kennedy. General Craddock, you stated that, according 
to the President's policy, interrogations and detention should only 
deviate from the principles of the Geneva Conventions for reasons of 
``military necessity.'' Who determines ``military necessity?''
    General Craddock. President Bush's 7 February 2002 directive 
requires that ``detainees be treated humanely and, to the extent 
appropriate and consistent with military necessity, in a manner 
consistent with the principles of Geneva.'' The JTF Gitmo Commander 
normally determines military necessity at JTF Gitmo.

    38. Senator Kennedy. General Craddock, is it your position that 
U.S. approved interrogation techniques in Gitmo are considered with the 
principles of Geneva?
    General Craddock. Yes. Secretary Rumsfeld's 16 April 2003 
memorandum on interrogation techniques states, ``I reiterate that U.S. 
Armed Forces shall continue to treat detainees humanely and, to the 
extent appropriate and consistent with military necessity, in a manner 
consistent with the Geneva Conventions.''

    39. Senator Kennedy. General Craddock, can all of the detainees at 
Gitmo be treated outside the principles of the Geneva Conventions?
    General Craddock. No. Given the President and Secretary of 
Defense's guidance, the presumption is that when appropriate and 
consistent with military necessity, the detainees at JTF Gitmo will be 
treated consistent with the Geneva Conventions.

                      DISAGREEMENT ABOUT FINDINGS

    40. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, from General Craddock's reports, and the media, we have 
evidence that high-ranking officers, and perhaps Pentagon leaders, 
disagree with your recommendation to hold Major General Miller 
accountable. Prior to General Craddock officially rejecting your 
recommendation to hold Major General Miller accountable, did you have 
any knowledge of other members of the DOD who disagreed with you? If 
so, who?
    General Schmidt and General Craddock. No. None to our knowledge.

    41. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, at any point did any Pentagon or military official ask 
you to change your findings or recommendations or pressure you in any 
way to make any changes to the report?
    General Schmidt and General Furlow. No.

                            REDACTED E-MAILS

    42. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, the FBI e-mails that we have access to are heavily 
redacted. It is very difficult to determine from those e-mails exactly 
what was included in the conversation, and what other allegations or 
important content may be excluded. Did you have access to completely 
unredacted versions of those e-mails during the course of your 
investigation?
    General Schmidt and General Furlow. The AR 15-6 investigation was 
presented with a packet of unredacted FBI e-mails that formed the basis 
of the initial allegations contained in the USSOUTHCOM appointment of 
an AR 15-6 investigation.

                 DOCUMENTS NOT CONSIDERED IN THE REPORT

    43. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, you testified that there was at least one document that 
was not read in its entirety until the day before the hearing, a May 
2003 e-mail. What were the contents of that e-mail, and why did it take 
until the day before the hearing to read it?
    General Schmidt and General Furlow. Brigadier General Furlow 
reviewed an e-mail with attachments the day prior to the hearing. The 
e-mail contained no additional information. We can say with certainty 
that the team was aware of the FBI agent's opinions regarding the 
Special Interrogation Plan, and that the team had an opportunity to 
interview the FBI agent who drafted the e-mail.
    The AR 15-6 did review literally thousands of pages of documents 
covering e-mails spanning several years of activities at JTF Gitmo. We 
were always vigilant to ensure we had complete information to ensure a 
thorough investigation. We remain confident that the AR 15-6 
successfully investigated interrogations at JTF Gitmo.

    44. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, were there any other documents that you requested but 
did not receive, were unable to read, or were at all redacted?
    General Schmidt and General Furlow. No.

                       WITNESSES NOT INTERVIEWED

    45. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, you testified that there may have been as many as 10 
witnesses that you sought to interview but were unable to contact. How 
many exactly were there?
    General Schmidt and General Furlow. Out of the 100-plus interviews, 
the AR 15-6 was not able to conduct full in-person interviews with 11 
witnesses because of a variety of limiting factors. This included five 
FBI agents and six DOD personnel. However, because the testimony of 
many of the witnesses overlapped and because of the existence of 
numerous interrogations logs, we felt confident in our ability to 
fulfill the factfinding task within the scope of AR 15-6 guidance.

    46. Senator Kennedy. Lieutenant General Schmidt and Brigadier 
General Furlow, which of the substantiated or unsubstantiated 
allegations would each witness have provided information on?
    General Schmidt and General Furlow. The allegations that the 
witnesses may have provided information on include short-shackling, 
loud music/strobe lights, the use of menstrual blood and lap dance, 
denial of food and water, and communicating a threat (not an enumerated 
allegation, but was discovered).
    Concerning the substantiated allegations, we felt we had sufficient 
evidence and detail to determine what in fact occurred.
    With respect to the unsubstantiated allegations, there were only 
two: the allegation of DOD interference with FBI agents, and the denial 
of food and water. Concerning the first unsubstantiated allegation, our 
interviews led us to believe it was a misunderstanding that the FBI and 
the DOD interrogators resolved among themselves. In fact, the FBI agent 
who made the allegation, when interviewed, indicated that the true 
concern was the impersonation of an FBI agent; this matter was resolved 
and the agent was pleased with the rapid and thorough response to the 
situation. With regards to the second unsubstantiated allegation that 
detainees were denied food and water, after the completion of 4 months 
of investigation and interviewing over 100 witnesses, we still only had 
a single allegation from the original agent. Despite repeated attempts 
over several months, we were unable to complete an in-person interview. 
Considering the lack of any other evidence or testimony, at the end of 
our investigation, the AR 15-6 was unable to substantiate this 
allegation.
    Since the hearing, we have conducted an in-person interview with 
this FBI Special Agent who alleged the denial of food and water, and 
the agent provided no additional corroborating evidence.
                                 ______
                                 
             Questions Submitted by Senator Daniel K. Akaka

                        INTERROGATION TECHNIQUES

    47. Senator Akaka. General Craddock, there have been numerous 
investigations into the interrogation techniques used on detainees, 
first at Gitmo, then Iraq and Afghanistan. All of these reports found 
that any substantiated abuses have been isolated occurrences and while 
some have been identified as degrading, abusive, and at best 
inappropriate, none have been in violation of any law or official U.S. 
policy. The reports have also indicated that any questionable 
interrogation practices were not as a result of guidance given by 
senior military or civilian officials. Other than Brigadier General 
Jane Karpinski, USA, who was in charge of the detention center at Abu 
Ghraib, no senior officials have been held accountable for actions by 
those under them.
    In addition, you stated at the July 13 hearing that you overruled 
the recommendation of Lieutenant General Schmidt and Brigadier General 
Furlow that called for the reprimand of Major General Geoffrey Miller, 
and instead referred the matter to the Army's Inspector General.
    My question to you is at what point are senior officials, military 
or civilian, responsible for the actions of those under their command 
or supervision and when will the DOD hold senior leaders accountable 
for detainee abuse, no matter how isolated?
    General Craddock. I have held, and will continue to hold, those 
under my command responsible and accountable for detainee abuse. In 
this particular case, I decided not to recommend admonishing Major 
General Miller because there was no finding that U.S. law or policy was 
violated and I determined that Major General Miller had exercised an 
appropriate level of supervision under the circumstances. More broadly, 
at JTF Gitmo there have been over 24,000 interrogations in over 3 years 
and there have only been a handful of substantiated detainee abuse 
allegations. Given this exceedingly small and isolated number of 
substantiated abuse allegations, I believe the leadership at JTF Gitmo 
has done a remarkably good job.

    48. Senator Akaka. General Craddock, at the Senate Armed Services 
Committee hearing, as well as in the Schmidt-Furlow Report, you 
reported that none of the questionable interrogation practices were in 
violation of the U.S. Army FM or DOD guidance. You also indicated that 
the Army FM was written for a more traditional war than we currently 
face in the global war on terrorism and that we may need to readdress 
our interrogation practices for this new environment.
    The FBI, which has had years of experience questioning suspects, 
has found that non-coercive interrogation methods yield more reliable 
results. They claim that force or coercion may cause someone to talk, 
but it won't necessarily get them to talk.
    Since the chief focus of the U.S. military detention center at 
Gitmo is to gain ``actionable intelligence'' by interrogating the 
detainees, would it not make sense to work more closely with agencies 
who have had experience, and success, in this area in order to be 
successful in getting the results we want?
    General Craddock. I approved two recommendations requesting an 
interagency review of interrogation training and an interagency policy 
review to establish standards for interrogations when multiple agencies 
and interrogations are involved. I forwarded these recommendations and 
the investigation report to the Department of Defense for their 
consideration. Additionally, it should be noted that JTF Gitmo 
coordinates with all organizations across the intelligence community to 
develop effective tactics, techniques, and procedures in its planning 
and execution of interrogation operations. The interagency presence and 
contribution at JTF Gitmo has been invaluable to the refinement of 
interrogation doctrine.

    49. Senator Akaka. General Craddock, when you referred this matter 
to the Army Inspector General, did you take the opportunity to provide 
your own analysis of the matter and make any recommendations on how 
they proceed with Major General Miller's responsibility in this?
    General Craddock. Army Regulation 20-1, Inspector General 
Activities and Procedures, requires forwarding of ``any and all 
allegations of impropriety or misconduct'' against general officers to 
the Department of the Army Inspector General. I forwarded the 
investigation report with the explanation that I disapproved the 
recommendation that Major General Miller be held accountable for 
failing to supervise the interrogation of al-Qahtani and be admonished 
for that failure. I also explained that my reason for disapproving this 
recommendation was that the interrogation of al-Qahtani did not result 
in any violation of any U.S. law or policy and, that in my view, the 
degree of supervision provided by Major General Miller did not warrant 
admonishment under the circumstances.

    [Whereupon, at 1:00 p.m., the committee adjourned.]


  MILITARY JUSTICE AND DETENTION POLICY IN THE GLOBAL WAR ON TERRORISM

                              ----------                              


                        THURSDAY, JULY 14, 2005

                               U.S. Senate,
                         Subcommittee on Personnel,
                               Committee on Armed Services,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:37 a.m. in 
room SR-325, Russell Senate Office Building, Senator Lindsey O. 
Graham (chairman of the subcommittee) presiding.
    Committee members present: Senators Warner, McCain, 
Roberts, Graham, Levin, Kennedy, and E. Benjamin Nelson.
    Other Senators present: Senator Wyden.
    Committee staff members present: Judith A. Ansley, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: Sandra E. Luff, 
professional staff member; David M. Morriss, counsel; Lynn F. 
Rusten, professional staff member; Scott W. Stucky, general 
counsel; Diana G. Tabler, professional staff member; and 
Richard F. Walsh, counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Gabriella Eisen, research assistant; 
Gerald J. Leeling, minority counsel; Peter K. Levine, minority 
counsel; and William G.P. Monahan, minority counsel.
    Staff assistants present: Benjamin L. Rubin, Nicholas W. 
West, and Pendred K. Wilson.
    Committee members' assistants present: Christopher J. Paul 
and Marshall A. Salter, assistants to Senator McCain; John A. 
Bonsell, assistant to Senator Inhofe; Chris Arnold, assistant 
to Senator Roberts; Mackenzie M. Eaglen, assistant to Senator 
Collins; Clyde A. Taylor IV, assistant to Senator Chambliss; 
Meredith Moseley, assistant to Senator Graham; Mieke Y. Eoyang, 
assistant to Senator Kennedy; Elizabeth King, assistant to 
Senator Reed; William K. Sutey, assistant to Senator Bill 
Nelson; and Eric Pierce, assistant to Senator Ben Nelson.

    OPENING STATEMENT OF SENATOR LINDSEY O. GRAHAM, CHAIRMAN

    Senator Graham. The hearing will come to order. Thank you 
all for coming. If you need a lawyer, this is a good place to 
come today. Thank you very much. I appreciate all of your 
taking time out of a busy schedule and I appreciate all the 
committee members for attending.
    We have five stacked votes at 10 o'clock, so we'll deal 
with it the best we can, but I'll try to keep the hearings 
going, so we'll just trade off and on during the hearing--if 
Senator Nelson comes--and keep it going so we won't have to 
keep you waiting for an hour. That's the problem we have to 
face.
    To begin with, I'd like to thank Senator Warner for 
scheduling today's and yesterday's hearings. Some people may 
have a different view of if we should be doing this or not, but 
that's a healthy discussion to have in a democracy. I believe 
it's very important that Congress has this hearing, and that 
people like yourselves on the panel come and talk with us about 
a large issue.
    This war is complex, it's complicated and it will require 
adjustments. The enemy adjusts and now I think it's time for us 
to adjust.
    Guantanamo Bay (Gitmo), in my opinion, is a valuable tool 
on the war on terrorism. It's the right place in terms of 
location, and the mission that it performs is essential in 
keeping us safe and free. The purpose of this hearing is to see 
what we can do, working with the Department of Defense (DOD), 
to make sure that Guantanamo Bay is working on all cylinders 
legally and is advancing the cause of this war and is making us 
more secure.
    In my opinion, Gitmo serves three purposes. First, it is a 
place to take someone who has joined a terrorist organization 
or shown sympathy to a terrorist organization off the 
battlefield and out of the fight. That makes us all safer. 
Since I don't want to become the South Carolina of Guantanamo 
Bays, I don't think so. If you'll raise your hand, we'll look 
at your State.
    Second, it is a place to gather intelligence, to find out 
how the enemy is operating, what they have done in the past, 
what they are up to now, and what they may do in the future. To 
those who have been responsible for the detainee population at 
Gitmo, there is some criticism coming your way, but there needs 
to be some applause coming your way as well. You have done a 
very good job, generally speaking, in extracting intelligence 
that has made it safer and given us a chance to get ahead of 
the enemy.
    Finally, the third role is prosecution. One of the things I 
would like every terrorist wannabe to understand is if you take 
up arms against us or coalition members, you do so at your own 
peril, because a couple of things await you, death or injury on 
the battlefield or detention and accountability.
    Guantanamo Bay is an ideal location, in my opinion, to 
bring people to justice who take up arms and murder innocent 
people and who engage in acts of terrorism. Every terrorist 
needs to understand that you're going to potentially lose your 
life, get injured or be prosecuted if you join these 
organizations. That's what Guantanamo Bay can provide for this 
country.
    There are three parts to this war. Intelligence is 
prevention. Detention is taking the enemy off the battlefield, 
and that's a part of the military component. The third is 
hearts and minds. The reason I think it's important that we 
have this hearing is that there have been some mistakes made. 
In a democracy, it's okay to be set free. It's okay to ask hard 
questions. It's okay to bring people before Congress and try to 
find out what happened, because gathering intelligence is 
important.
    But if a misstep is made, it can affect the shape of the 
battlefield in the future. An inaccurate news report from 
Newsweek resulted in people getting killed. Image matters. Part 
of this hearing process is to try to improve the image of 
Guantanamo Bay as well as making it substantively more 
effective in the war on terrorism.
    If we ignore that third part of hearts and minds, we do so 
at our peril. Every general or combatant commander that's come 
before this committee has one thing they know for certain, and 
that is a military solution is not going to be the ultimate 
solution to this war. The military component helps us get a 
political solution for moderate forces and vanquish extremists 
in the Middle East. That's why it's important to have this 
hearing.
    The truth is, due to no one's fault, Guantanamo Bay is in a 
legal mess. I'm here to blame no one. I'm here to address the 
problem. Some of you I used to work for, so I respect your 
service to our country. I respect your legal abilities 
tremendously, but the truth is we have been in operation now 
for almost 3 years and no one has been prosecuted. I'm not 
blaming anybody but we need to fix that.
    Our Federal courts have had a chance to look at the legal 
structure in Guantanamo Bay and we are stuck. My goal is to 
work with the DOD and move forward. Enemy combatant status is 
in litigation. The tribunal system that would hold people 
accountable is stuck legally. We have had problems with 
interrogation techniques not being standard.
    The goal of this hearing, and my involvement, is to come up 
with a comprehensive solution that allows Guantanamo Bay to be 
effectively used in the war on terrorism, and a place where we 
can try people sooner rather than later, so that we can 
continue to get good intelligence using standardized techniques 
that will not create black eyes for this country in terms of 
the hearts and minds of the world, and to have a detention 
policy that will define an enemy combatant in the way that the 
Federal courts will sign off on.
    If we can accomplish that goal, then we will be safer. I 
have one final thought. Congress has been absent without leave 
(AWOL). We have criticized and we have applauded, but we have 
been absent when it comes to designing policies, and dealing 
with the capture of people on land and sea who are involved in 
the war. That is a constitutional duty of Congress.
    So my offer to each person here and to the DOD in general 
is, working together, let's see if we can find some statutory 
solutions to problems that face us at Guantanamo Bay, so that 
the place can be fully utilized in the war on terrorism. I 
think it is now time for Congress to look at what we can do.
    With that said, I will recognize Senator Wyden, who would 
like to speak before the committee and has an engagement.

  STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE STATE OF 
                             OREGON

    Senator Wyden. Thank you very much, Mr. Chairman. I want to 
thank you and Senator Nelson for the invitation to come and in 
recognition of the good work that you and a number of Senators 
on this committee have done to prevent gratuitous 
filibustering.
    I just want to make a couple of points this morning and I 
appreciate the invitation. I think you are aware, Mr. Chairman, 
and Senator Nelson, that I went to Guantanamo Bay just a couple 
of weeks ago and I want to give you a couple of observations 
that are very much in sync with your opening remarks.
    It seems to me the administration is on point when they say 
this is a war and the people who are in Guantanamo are not your 
garden-variety criminal defendants. These are dangerous people. 
At the same time, it seems to me that the administration has 
given short shrift to the need for a set of rules, a set of 
procedures, or a kind of compass to guide what happens at 
Guantanamo Bay and other facilities. I want to touch on a 
couple of reasons why.
    Senator Nelson and I, for example, were in the room where 
the combatant tribunals take place and we were, in fact, 
briefed on the way the administrative review process works. I 
came away with the clear convictions they are good people, who 
are dedicated to fairness.
    But asking them to conduct these reviews without any 
clearly defined set of rules that have a basis in law puts them 
essentially in an untenable situation.
    Let me give you an example of the kind of issues that I 
think we ought to be looking at. For example, if you look at 
Article 21 of the Geneva Conventions with respect to holding 
foreign nationals who are dangerous, what is striking about it 
is that Article 21 coming from the Geneva Conventions is 
actually stronger in terms of its effect on detainees than is 
current Supreme Court law.
    So we have a situation in which Geneva, which is often held 
out as this kind of forum for lofty liberalism, really has the 
tougher set of principles in a number of areas than even 
current Supreme Court law. That's the kind of issue we ought to 
be looking at.
    A second area that I came away concerned with is what is 
done with respect to detainees who have what is known as 
intelligence. Obviously if we are holding people who have 
knowledge of active terror cells, that's in our national 
security interest.
    But there is a real question about what to do with 
individuals who are not dangerous. What I think you indicated 
you wanted in your opening statement is that you want to 
protect the national security interests of our country. That is 
different, it seems to me, than creating some kind of human 
reference library down there without any set of rules with 
respect to how matters where we have interest in gathering 
intelligence is conducted.
    The last point that I would make, Mr. Chairman, is that if 
you just close Gitmo, it seems to me that what you will have is 
a significant amount of reaction. You will in effect be 
outsourcing the interrogation of these individuals to countries 
with a much less significant commitment to human rights than we 
have.
    I don't think any one of us want to see that kind of 
scenario. But at the same time, as we make sure that these 
dangerous individuals, if released, can't get out and injure 
our citizens, let us not have the policy that would in effect 
make the treatment of detainees the Achilles heel of our U.S. 
antiterrorism policy.
    You have a lot of good people down there, and I met a 
number of them from Oregon. They have been given a very tough 
assignment. You touched on Congress being AWOL. I'd go even 
further than that. It seems to me Congress has been derelict, 
derelict in not meeting its responsibilities so that the good 
people that are down there--I came away with a sense of 
commitment and fairness--have a compass by which to guard them 
in that room where Senator Nelson and I were at the 
administrative audit review board procedure.
    I thank you and Senator Nelson for the chance to come and 
to work with you, Senator Graham, on a bipartisan basis.
    [The prepared statement of Senator Wyden follows:]

                Prepared Statement by Senator Ron Wyden

    Thank you for inviting me to appear before you today. I commend you 
for holding this hearing. Current practices on detention and rendition 
deserve to be examined very closely by Congress, and I am very glad 
this matter is finally getting some of the attention it deserves.
    I would like to start off by saying that I agree with the Bush 
administration that this is a war, and that the individuals at 
Guantanamo are not garden-variety criminal defendants. But the 
administration is not right to say that just because we are at war, 
there should be no rules. None of us wants to put the American people 
at risk by releasing dangerous individuals who want to get out and kill 
people. At the same time, none of us wants the way that we treat 
detainees to become the Achilles' heel of U.S. antiterrorism policy.
    I saw the policy on detention in practice when I traveled to Cuba 
last month with Senator Nelson and visited Camp Delta in Guantanamo 
Bay. I believe there needs to be vigorous, concerted oversight of 
practices at Guantanamo and other, similar facilities. Now having 
visited there, in my view the most glaring problem that Congress needs 
to address is the legal status of these detainees.
    Senator Nelson and I were in the room where the Combatant Status 
Review Tribunals take place, and we were briefed on the Administrative 
Review Board process. These procedures were established to determine 
whether individuals pose a threat to the United States. The U.S. 
soldiers who are involved in these proceedings are good people. They 
are trying hard to do the right thing. But frankly, I don't know how 
they sort it out without a compass. By asking them to conduct reviews 
without establishing clear rules they can follow, the Federal 
Government has put them in a very difficult situation.
    These soldiers need guidance and standards provided to them so that 
they can do their jobs. Even the reasons that detainees are being held 
need to be better defined. Many, for instance, have what is known as 
``intelligence value.'' If the U.S. is holding people because there is 
reason to believe that they have knowledge of active terrorist cells or 
operational planning, then that's in our national security interests. 
But if the evidence indicates that they are not dangerous, continuing 
to hold them requires a different set of standards. I'm interested in 
protecting the national security interests of this country, not in 
creating a human reference library made up of individuals who no longer 
pose a threat to the United States.
    Of course, some prisoners are not being held because of their 
intelligence value, but because they are dangerous. The absence of 
clear rules here raises some questions that Congress ought to explore. 
For example, Article 21 of the Geneva Conventions would seem to provide 
the government with stronger grounds for holding detainees than the 
rules currently being employed by the administration. That article says 
that if foreign nationals are members of a group that is in armed 
conflict with the United States, the United States has the right to 
capture them and hold them prisoner until they are no longer dangerous. 
I realize that al Qaeda is not a conventional army, but perhaps those 
Conventions, which are sometimes dismissed as soft and lofty 
liberalism, can point us to a proper approach in law, that would have 
the added advantage of having a strong legal precedent.
    Based on what Senator Nelson and I observed and learned at 
Guantanamo, I remain very concerned about past instances of 
unacceptable practices at Guantanamo and elsewhere. However, I believe 
that improvements have been made to procedures and conditions--at least 
at Guantanamo. I strongly prefer even this situation to the inevitable 
alternative: further outsourcing of prisoner interrogation to countries 
with a questionable commitment to human rights and the rule of law.
    Our servicemen and servicewomen at Guantanamo have been given a 
very tough assignment. They are working incredibly hard. While in Cuba, 
I had the chance to sit down with soldiers from Oregon and talk to them 
about their experiences serving at Guantanamo. These men and women are 
doing a great job.
    But Congress is making those soldiers' job much harder than it 
needs to be. Colleagues, we could make their job a lot easier by 
enabling them to operate in an environment where the rules are clear. 
Some of the soldiers and sailors at Guantanamo Bay have been unfairly 
maligned by being associated with the errors of their government. 
Allowing Camp Delta to become a modern-day Bastille where prisoners may 
be held under humane conditions, but are still kept indefinitely, with 
no formal charges and little legal recourse, is not likely to change 
Guantanamo's image around the world as a recruiting poster for al 
Qaeda. A better solution is for Congress to write rules for detainees 
that are solidly grounded in United States law, and to hold ourselves 
to a higher standard of conduct than those who seek to erode our 
freedoms.
    I look forward to working with all of you on this issue.

    Senator Graham. I believe it's appropriate to recognize the 
chairman and ranking member. Mr. Chairman, would you like to 
say anything?

                STATEMENT OF SENATOR JOHN WARNER

    Senator Warner. Very briefly, Mr. Chairman, I thank you and 
our distinguished colleague, Senator Nelson and also Senator 
McCain. We have all been discussing these issues and your 
valuable contribution. I'll be very brief.
    I'd like to turn to your phrase that Guantanamo Bay is a 
legal mess. Let us be careful to say that Guantanamo today is 
being operated as best they can do under a framework of laws 
which are either just not clear or need to be refined.
    So I agree with you. But let us send a message. 
Incidentally, you are going to join me and others tomorrow and 
have our view at Guantanamo Bay.
    As we move forward in Congress, we must be very careful not 
to abrogate or in any way put in conflict the specific powers 
given to the President of the United States under our 
Constitution. We must move towards a framework of laws which 
reflect the longstanding principles of this great Nation, a 
Nation which continues to be the symbol of freedom and hope 
throughout the world.
    As we proceed, we have to preserve the ability of our 
military and civilian counterparts in the intelligence field 
that continue to get the needed information to protect our 
forces abroad and indeed to protect our citizens here at home.
    It's a daunting task. We are embarking on it, and I am very 
pleased to see thus far a good, strong, bipartisan interest in 
achieving these goals.
    Senator Graham. Senator Levin.

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. Thank you, Mr. Chairman, thank you for 
convening this hearing. I thank Senator Warner also for 
supporting and authorizing this hearing.
    Mr. Chairman, I very much support your opening statement. I 
think it was very accurate in terms of your assessment of the 
issue. On December 12, 2001, the full committee held a hearing 
that the Department plans to implement the President's plan 
regarding the trial by military commission of certain detainees 
in U.S. custody.
    Since that time, in December 2001, the Secretary of Defense 
issued a series of military orders and instructions detailing 
the procedures for military commissions, and military personnel 
have been appointed or assigned to commissions, prosecutor's 
offices, and defense counsel offices.
    The President has determined that 12 detainees were subject 
to his order to be tried by military commission, the appointing 
authority has approved specific charges for 4 of those 12 
detainees, and referred those charges to military commissioners 
for trial.
    The Federal courts, however, intervened raising legal 
questions about the commission and detention process as is 
currently structured.
    Now, during this time, the Office of Legal Counsel (OLC), 
in the Department of Justice (DOJ), issued a number of 
memoranda setting up the legal framework for interrogations at 
Gitmo and elsewhere, and a new memo was declassified August 1, 
2002 which was the first by Gitmo.
    The OLC concluded if physical pain amounts to torture, it 
must be equivalent in intensity to the pain accompanying 
serious physical injury such as organ failure, impairment of 
body function or even death.
    According to the Church report on interrogation techniques, 
those OLC findings were included virtually word for word in a 
March 14, 2003, OLC memo prepared by Deputy Assistant General 
John Yoo to William Haynes.
    Despite repeated written requests, the March 14, 2003, OLC 
memo has not been provided to this committee. A second highly 
relevant document has also been denied us.
    Assistant Attorney General Bybee prepared another opinion 
known as the second Bybee memo on the legality of significant 
detention techniques around the time of August 1, 2002, OLC 
memo.
    Mr. Chairman, I'm speaking here to both our chairmen. These 
two memos are apparently still in effect. These documents are 
absolutely essential to our understanding of the legal 
framework for our detention and interrogation policy.
    I had recommended the chairman of the committee issue a 
subpoena, if necessary, in order to obtain them. Every Senator 
should join in assisting on these highly relevant and essential 
documents, and I know that Chairman Warner, and his staff have 
sought these documents.
    Again, I believe that we must issue a subpoena to get these 
documents. They go right to the very issue, that our committee 
and subcommittee and Congress are all in the process of looking 
into and must look at.
    These techniques which have been approved apparently 
include the use of stress positions, isolation, deprivation of 
light, 20-hour interrogations, removal of clothing, use of 
phobias such as fear of dogs to induce stress.
    The Secretary established a Defense working group to make 
recommendations on interrogation techniques. Several of our 
witnesses today apparently participated in that working group. 
The Church report states that despite the number of objections 
and concerns the working group was directed to the March 14, 
2003, OLC legal memo on what constitutes cruel, inhuman 
treatment, they were directed to accept that as a controlling 
authority on all legal issues.
    The March 14, 2003, memo is one of two documents that have 
been withheld. Mr. Chairman, again, I commend you in your 
opening statement for having these hearings for the reasons 
that you called them and I would hope that in addition to 
hearing from our witnesses today, we will continue to press for 
those two documents which Congress, it seems to me, is not only 
entitled to but really obligated to review.
    Senator Graham. Senator Nelson.
    Senator Ben Nelson. Thank you, Mr. Chairman, I want to 
express my appreciation for this hearing today and I want to 
express thanks to the witnesses. I think the first panel might 
help us on how we might address the legal concerns of 
establishing standards.
    Our goal of establishing standards is to reaffirm that this 
is a nation of laws, we abide by law and we want to send a 
message to the world that we will not succumb to the tactics of 
those against whom this battle is being waged, and that we will 
apply laws in an appropriate fashion in the detention of 
prisoners of whatever status.
    I also want to say that as we seek to do this, we need to 
get the kind of input that we are going to get today with 
people who have the expertise, experience, and knowledge of the 
law, and how it's been applied in other situations.
    I ask that my more complete opening statement be made a 
part of the record.
    Senator Graham. Without objection.
    [The prepared statement of Senator Nelson follows:]

            Prepared Statement by Senator E. Benjamin Nelson

    Thank you Mr. Chairman for holding this very important hearing. I 
join you in extending a warm welcome to our witnesses.
    I recently visited the detainee facility at the U.S. Naval Station 
at Guantanamo Bay, Cuba. I was very impressed with what I observed 
while there. At least at the present time, that detention facility is 
being run in a professional, humane manner.
    While there, I was able to meet and talk with three sailors and a 
marine from Nebraska. Each of them assured me that they have not 
personally observed any instances of abuse during their tours of duty 
there. I know that I can trust these young Nebraskans to tell me like 
it is.
    I want to thank Anthony Mroczek of Grand Island, Nebraska; Jerry 
Garhart of York, Nebraska; Theesen Brant from Norfolk, Nebraska; and 
Chad Luke from Doniphan, Nebraska, for their hospitality and candid 
assessment of conditions at Guantanamo. Each of these servicemembers is 
serving honorably in difficult conditions. I thank them or their 
dedication, commitment to duty, and service to our Nation.
    From the outset, I want to make clear that I support the use of 
military commissions to try detainees for violations of the law of war. 
Military commissions have been used during times of war throughout our 
history and have served us well. I am, however, concerned about some of 
the procedures that have been approved for the military commissions as 
currently configured. The Federal Courts are now addressing these 
concerns, and I am confident that we can learn from their decisions.
    I do have concerns about how we classify detainees. I am also 
concerned about the lack of clear standards for how detainees, whatever 
their classification, are treated. Finally, I am concerned about the 
United States losing the moral high ground because we have not adhered 
to our traditional standards of fundamental fairness and how we treat 
people, even bad people.
    I agree that the detainees in the global war on terrorism do not 
meet the criteria for a legally required application of the Geneva 
Conventions. I also agree that enemy combatants can be detained to 
prevent them from returning to the battlefield. However, I don't think 
that means that we should have no standards whatsoever for how we treat 
them. Perhaps it is time for Congress to establish a new category for 
detainees that takes into account the complexities of the global war on 
terrorism and to prescribe appropriate standards for how we treat this 
new category of detainee.
    I was disappointed to hear senior military officers testify at 
yesterday's Armed Services Committee hearing on the investigation into 
allegations of detainee abuse at Guantanamo that it is consistent with 
United States policy to treat detainees in a degrading, abusive, or 
humiliating manner, so long as they were not subject to torture and 
were not treated ``inhumanely.''
    It seems to me that it is inhumane to treat someone in a degrading, 
abusive, or humiliating manner. However, yesterday's witnesses limited 
humane treatment to providing adequate food, water, clothing, and 
shelter.
    Witnesses at yesterday's hearing described approved interrogation 
techniques that would, as a minimum, constitute sexual harassment, or 
sexual assault in our society. They described a female interrogator 
straddling a male detainee, massaging him, whispering in his ear, and 
running her fingers through his hair. A detainee was forced to wear a 
bra, and to wear a woman's thong on his head.
    If these are the standards of the Department of Defense, it is time 
for Congress to step in and establish reasonable standards of conduct 
that are consistent with our history as a moral leader. Treating 
detainees this way has incited people of Muslim faith and assisted 
terrorists in their recruiting efforts. If official policies permit 
this kind of behavior, why are we surprised when young soldiers take it 
upon themselves to treat detainees in a humiliating and degrading way? 
We owe it to our service men and women who are assigned duties 
involving the treatment of detainees to give them clear, reasonable 
standards and guidelines for appropriate conduct. We have not done 
that.
    Mr. Chairman, I hope that our witnesses today can give us some help 
in developing new rules to address the legal status of detainees. These 
rules could define an enemy combatant, articulate standards for 
detention and release of enemy combatants, prescribe procedures for 
military tribunals, and establish reasonable standards for 
interrogation of enemy combatants. Thank you, Mr. Chairman.

    Senator Graham. Mr. Dell'Orto, please. I understand you 
have an opening.

  STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL 
                 COUNSEL, DEPARTMENT OF DEFENSE

    Mr. Dell'Orto. My statement is one on behalf of the Judge 
Advocate General (JAG). Mr. Chairman, thank you for the 
opportunity to contribute. We understand that the committee is 
focusing on military aspects of the Department of Defense, 
including the classification of enemy combatants, the role of 
military commissions, as well as responsibilities of the United 
States, in the conduct of detention operations and U.S. laws 
under existing international treaty organizations.
    Our Nation has faced many challenges since the attacks of 
September 11, 2001. The devastation of human lives have been 
echoed in cities and countries of our friends and allies, 
including Baghdad, Kabul, Istanbul, Bali, Riyadh, Madrid, 
Russia, Uzbekistan, and most recently London. The armed 
conflict of al Qaeda and its supporters continues.
    For as long as it does, we will continue to meet each 
challenge steadfastly and consistently with the rule of law. 
Throughout this conflict, we have looked at the United States 
Constitution, and U.S. treaty obligations.
    The President acting as commander in chief has taken action 
for the country and to prevent additional attacks. Congress, in 
authorizing use of military force on September 18, 2001, 
supported that use against those nations, organizations or 
persons who planned, authorized, committed, or aided the 
terrorist attacks or harbored such organizations or persons.
    Congress also understands that the forces responsible for 
the September 11 attacks continue to pose an unusual and 
extraordinary threat to the national security, and that the 
President has the authority under the Constitution to take 
action to deter and prevent actions, to deter acts against the 
United States.
    Consistent with this authority, U.S. and coalition forces 
have removed the Taliban from power. In the conflict of these 
operations, U.S. Armed Forces consistently won and have seized 
many hostile persons and detained a small portion of them as 
enemy combatants.
    On February 7, 2002 the President determined that the Third 
Geneva Convention applies to the Taliban detainees, but not to 
the al Qaeda detainees because Afghanistan is a party to the 
Geneva Conventions, but al Qaeda, an international terrorist 
group, is not.
    They also determined that Taliban detainees are not 
entitled to prisoner of war (POW) status. Even so, he directed 
the Armed Forces to treat such detainees humanely. Those who 
are members of al Qaeda, Taliban and supporters are enemy 
supporters who may be detained.
    Such detention serves military objectives of preventing 
initial attacks, and preventing combatants from rejoining the 
conflict and gathering intelligence. The military defines enemy 
combatants as personnel engaging in hostilities during armed 
conflict on behalf of the party to the conflict.
    Enemy combatants are lawful targets unless they are 
captured or are no longer resisting. In a more conventional 
armed conflict between states, and any fighters of a government 
are recognizable by their uniforms or fixed insignia, with a 
responsible command, carry arms lawfully.
    Enemy fighters in the global war on terrorism are not 
recognized among those ways. In fact, their strategy and 
tactics include hiding and illegally targeting civilians in 
violation of the law. As private citizens, these fighters do 
not have a right to engage and wage war.
    The law for the Geneva Conventions offers specific 
privileges to combatants but not to terrorist fighters. The DOD 
doctrine defines enemy combatants who can be properly detained 
under the customs of the law.
    The definition has the flexibility to meet specific 
circumstances within a particular conflict. It has been adapted 
in the war on terrorism operations to define opposing fighters. 
For example, the Deputy Secretary of Defense establishing 
tribunals defined an enemy combatant for purposes of that order 
as an individual who is part of or supporting Taliban or al 
Qaeda forces or associated forces that are engaged in 
hostilities against the United States or its coalition 
partners.
    Consistent with these definitions, the Supreme Court has 
recently endorsed a similar definition of enemy combatant in a 
case involving the detention of enemy combatants captured from 
Afghanistan. The Court's statement, for the purposes of this 
case, says an enemy combatant is an individual who is part of 
or is supporting forces hostile to the United States or 
coalition partners in Afghanistan, or who is engaged in armed 
conflict against the United States.
    With respect to the classification and definition of enemy 
combatants, it's important to maintain flexibility of the 
terminology in order for us to operate effectively with 
coalition forces and to address the types of conflicts in which 
we are engaged and will be engaged.
    Generally speaking, the terms combatant, unprivileged 
combatant, unlawful combatant, and enemy combatant are well 
established in law in the detention and review process. From 
the early stages in military operations in Afghanistan, the DOD 
has taken steps to capture personnel and continue the need for 
their continued detention.
    In a conflict in which an army does not use insignia or 
uniforms to distinguish itself, the Department has established 
new mechanisms to test each detainee as an individual combatant 
in connection with the ongoing hostilities, undergoing a 
multistep screening process to determine if their detention is 
necessary.
    If an individual is captured, commanders in the field, 
using all available information, make a determination as to 
whether an individual is an enemy combatant, that is, whether 
the individual is part of or supporting forces hostile to the 
United States or our coalition partners, and engaged in armed 
conflict against the United States.
    Individuals who are not enemy combatants are released. 
Between August 2004 and January 2005, Combatant Status Review 
Tribunals (CSRTs) have reviewed the status of all individuals 
detained at Guantanamo in a fact-based proceeding to determine 
whether an individual is still properly classified as an enemy 
combatant.
    The CSRTs gave each detainee an opportunity to contest 
their designation as an enemy combatant. In December 2004, the 
Administrative Review Board (ARB) process began to assess 
whether enemy combatants continue to pose a threat to the 
United States or its allies or whether there are other factors 
bearing on the need for detention.
    The process permits the detainee to appear in person for an 
ARB panel of three military officers to explain why the 
detainee is no longer a threat to the United States or allies 
and provide support. This process remains ongoing and we'll 
review each detainee status annually.
    With respect to the role of military commissions, their use 
is firmly based in international law, our Constitution, the 
Uniform Code of Military Justice (UCMJ), our Nation's history 
and international practice.
    The United States employed a military commission to try 
eight Nazi saboteurs during World War II. At the conclusion of 
that conflict, U.S. military commissions heard some 500 cases 
against enemy war criminals. Australia, Canada, China, France, 
Greece, Norway, and United Kingdom used military commissions to 
prosecute 1,166 cases against war criminals.
    In Article 21 of the UCMJ, Congress expressly recognizes 
military commissions and military tribunals as lawful and 
legitimate means of the President to try violations.
    Additionally, Article 36 of the UCMJ codifies the 
President's authority to prescribe trial, pre-trial and post-
trial procedures for military commissions.
    They have not been used since World War II and constitute 
an exceptional situation, such as with respect to terrorists 
who have violated the law. On November 13, 2001, the President 
authorized use of military commissions in treatment and trial 
of certain noncitizens in the war against terrorism.
    The President took this action in response to the acts of 
terrorism, including the attacks of September 11, 2001, on the 
Pentagon, World Trade Center, and on civilian aircraft in 
Pennsylvania.
    After the President authorized use of military commissions, 
work began to establish, consistent with the President's order, 
the procedures to be used and the rights to be afforded the 
accused. This process involved working to achieve ensuring 
trial for the accused, protecting classified and sensitive 
information and protecting the safety of personnel 
participating in the process, including the accused.
    Use of military commissions with terrorists who violated 
laws of war, as opposed to other forums such as Federal courts 
or military courts, provides the flexibility necessary to 
ensure that it's equally important yet competing goals are 
attended.
    In conclusion, the contemporary battlefield has challenged 
members of the DOD legal community as intensively as it has 
challenged the commanders and soldiers, sailors, airmen, and 
marines they advise. The exceptional performance of our judge 
advocates at every level of command, and in particular in 
combat in Iraq and Afghanistan where members of the uniformed 
legal branches have been killed and wounded in action, has been 
essential to ensuring the overall excellent record of 
compliance with the law achieved by our Armed Forces.
    For this, our Nation should be proud. This success has not 
occurred in a legal environment without uncertainty. This has 
generated reviews and commentaries on how we should realize 
national security objectives. The Department of Defense, both 
military and civilian, have worked long and hard to ensure our 
forces have this, while upholding the rule of law and 
preserving American values.
    We are confident judge advocates will continue to make 
essential contributions to our efforts to reconcile the nature 
of facing these threats with the traditional and historic 
commitment of our armed forces to conduct disciplined military 
actions in compliance with the law of war. Established 
principles have served us well to meet the challenges of 
military operations in the war on terrorism. We are confident 
that they provide the firm foundation for meeting future 
challenges. Thank you very much, Mr. Chairman.
    [The prepared joint statement of Mr. Dell'Orto, General 
Romig, General Rives, Admiral McPherson, and General Sandkuhler 
follows:]

 Prepared Joint Statement by Daniel J. Dell'Orto; MG Thomas J. Romig, 
 USA; Maj. Gen. Jack L. Rives, USAF; RADM James E. McPherson, USN; and 
                  Brig. Gen. Kevin M. Sandkuhler, USMC

    Mr. Chairman and members of the subcommittee, thank you for the 
opportunity to contribute to this important discussion concerning 
military justice and detention policy in the global war on terrorism. 
We understand the subcommittee is focusing on military justice aspects 
of detention policy in the Department of Defense (DOD), including the 
definition and classification of enemy combatants; legal aspects of the 
detention, review, and interrogation of enemy combatants; the role of 
military commissions, as well as responsibilities of the United States 
for the conduct of detention operations under U.S. laws, existing 
international treaty obligations and the law of war.
    Our Nation has faced many challenges since the deadly and savage 
attacks of September 11, 2001. The devastating loss of civilian lives 
and destruction of property and infrastructure of that day have been 
echoed in the cities and countries of our friends and allies, including 
Baghdad, Kabul, Istanbul, Bali, Riyadh, Madrid, Russia, Uzbekistan, 
and, most recently, London. The armed conflict with al Qaeda and its 
supporters continues. For as long as it does, we will continue to meet 
each challenge steadfastly and consistent with the rule of law.
    Throughout this conflict, we have looked to the U.S. Constitution, 
U.S. statutes, U.S. treaty obligations, and the law of war to frame our 
actions. The President, acting as Commander in Chief, has taken action 
to defend the country and to prevent additional attacks. Congress, in 
the Authorization for Use of Military Force, September 18, 2001, 
supported the President's use of ``all necessary and appropriate force 
against those nations, organizations, or persons he determines planned, 
authorized, committed, or aided the terrorist [September 11] attacks . 
. . or harbored such organizations or persons.'' \1\ Congress also 
emphasized that the forces responsible for the September 11 attacks 
``continue to pose an unusual and extraordinary threat to the national 
security,'' and that ``the President has authority under the 
Constitution to take action to deter and prevent acts of international 
terrorism against the United States.'' \2\
---------------------------------------------------------------------------
    \1\ Publ. L. No. 107-40, Sec. Sec. 1-2, 115 Stat. 224.
    \2\ Ibid.
---------------------------------------------------------------------------
    Consistent with this authority, U.S. and coalition forces have 
removed the Taliban from power, eliminated the ``primary source of 
support to the terrorists who viciously attacked our Nation on 
September 11, 2001'' and ``seriously degraded'' al Qaeda's training 
capability.\3\ In the conduct of these operations, U.S. Armed Forces, 
consistent with the law and settled practice during armed conflict, 
have seized many hostile persons and detained a small proportion of 
them as enemy combatants.
---------------------------------------------------------------------------
    \3\ Office of the White House Press Secretary, Letter from the 
President to the Speaker of the House of Representatives and the 
President Pro Tempore of the Senate (Sept. 19, 2003) 

---------------------------------------------------------------------------
    On February 7, 2002, the President determined that the Third Geneva 
Convention applies to the Taliban detainees, but not to the al Qaeda 
detainees because Afghanistan is a party to the Geneva Conventions but 
al Qaeda--an international terrorist group--is not. He also determined 
that under article 4 of that Convention, Taliban detainees are not 
entitled to prisoner of war (POW) status. Even so, he directed the 
Armed Forces to treat such detainees humanely. Those who are members of 
al Qaeda, the Taliban, or their affiliates and supporters are enemy 
combatants who may be detained for the duration of hostilities. Such 
detention serves the vital military objectives of preventing additional 
attacks, preventing captured combatants from rejoining the conflict, 
and gathering intelligence to further the overall war effort. The 
military's authority to capture and detain enemy combatants is both 
well-established and time honored.

                            ENEMY COMBATANTS

    Enemy combatants are personnel engaging in hostilities during an 
armed conflict on behalf of a party to the conflict. Enemy combatants 
are lawful targets unless they are captured or wounded, sick, or 
shipwrecked and no longer resisting.
    In a more conventional armed conflict between States, enemy 
fighters of a government are recognizable by their uniforms or fixed 
insignia, fight under responsible command, carry their arms openly, and 
otherwise abide by the law of war.\4\ Enemy fighters in the global war 
on terrorism are not recognizable in those ways--in fact, their 
strategy and tactics include hiding within civilian populations and 
deliberately targeting civilians in violation of the law.\5\ As private 
citizens, these enemy fighters do not have a law of war right to 
initiate and wage war. The law of war, including the Third Geneva 
Convention, offer specific protections and privileges to conventional 
combatants, but not to terrorist fighters.
---------------------------------------------------------------------------
    \4\ Lawful combatants include members of the regular armed forces 
of a State party to the conflict; militia, volunteer corps, and 
organized resistance movements belonging to a State party to the 
conflict, which are under responsible command, wear a fixed distinctive 
sign recognizable at a distance, carry their arms openly, and abide by 
the laws of war; and, members of regular Armed Forces who profess 
allegiance to a government or an authority not recognized by the 
detaining power. They are entitled to prisoner of war status upon 
capture, and are entitled to ``combatant immunity'' for their lawful 
pre-capture warlike acts. They may be prosecuted, however, for 
violations of the law of war. If so prosecuted, they still retain their 
status as prisoners of war.
    \5\ Unlawful combatants, or unprivileged belligerents, may include 
spies, saboteurs, or civilians who are participating in hostilities, or 
who otherwise engage in unauthorized attacks or other combatant acts. 
Unprivileged belligerents are not entitled to prisoner of war status, 
and may be prosecuted under the domestic law of the captor.
---------------------------------------------------------------------------
    DOD doctrine currently defines an enemy combatant to be, ``Any 
person in an armed conflict who could be properly detained under the 
laws and customs of war.'' \6\ The definition has the flexibility to 
meet the specific circumstances of a particular conflict. It has been 
adapted in war on terrorism operations to define who is part of an 
opposing force. For example, the Deputy Secretary of Defense's Order 
Establishing Combatant Status Review Tribunals (CSRTs) defined an 
``enemy combatant'' for purposes of that order as ``an individual who 
was part of or supporting Taliban or al Qaeda forces, or associated 
forces that are engaged in hostilities against the United States or its 
coalition partners.'' \7\ Consistent with these definitions, the 
Supreme Court has recently endorsed a similar definition of ``enemy 
combatant'' in a case involving the detention of an enemy combatant 
captured in Afghanistan. The Court stated that ``for purposes of this 
case, enemy combatant . . . is an individual who . . . was part of or 
supporting forces hostile to the United States or coalition partners in 
Afghanistan and who engaged in an armed conflict against the United 
States there. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2639 (1994) 
(plurality op.) (internal quotation marks omitted).
---------------------------------------------------------------------------
    \6\ See Joint Publication 1-02, DOD Dictionary of Military and 
Associated Terms (as amended through May 9, 2005).
    \7\ Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to 
the Secretary of the Navy (July 7, 2004).
---------------------------------------------------------------------------
    With respect to the definition and classification of enemy 
combatants, it is important to maintain flexibility in the terminology 
in order to allow us to operate effectively with coalition forces, and 
to address the changing circumstances of the types of conflicts in 
which we are engaged, and will be engaged. Generally speaking, the 
terms ``Combatant,'' ``Unprivileged Belligerent,'' ``Unlawful 
Combatant,'' and ``Enemy Combatant,'' are well-established in the law 
of war.

                        DETENTION REVIEW PROCESS

    From the early stages of military operations in Afghanistan, the 
Department of Defense has taken steps to examine the status of captured 
personnel and determine the need for their continued detention. In a 
conflict in which the enemy does not use distinctive insignia or 
uniforms to distinguish itself from the civilian population, the 
Department has established review mechanisms to test and revalidate the 
status of each detainee as an enemy combatant.
    Individuals taken into DOD control in connection with the ongoing 
hostilities undergo a multi-step screening process to determine if 
their detention is necessary. When an individual is captured, 
commanders in the field, using all available information, make a 
determination as to whether the individual is an enemy combatant, i.e., 
whether the individual is ``part of or supporting forces hostile to the 
United States or coalition partners, and engaged in an armed conflict 
against the United States.'' \8\ Individuals who are not enemy 
combatants are released.
---------------------------------------------------------------------------
    \8\ Department of Defense, Fact Sheet: Guantanamo Detainees 

---------------------------------------------------------------------------
    Between August 2004 and January 2005, the CSRTs reviewed the status 
of all individuals detained at Guantanamo, in a factbased proceeding, 
to determine whether the individual is still properly classified as an 
enemy combatant. The CSRTs gave each detainee the opportunity to 
contest the designation as an enemy combatant.
    In December 2004, the Administrative Review Board (ARB) process 
began to assess 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. This process remains ongoing and will review each 
detainee's status annually.

                              COMMISSIONS

    With respect to the role of military commissions, their use is 
firmly based in international law, our Constitution, the Uniform Code 
of Military Justice (UCMJ), our Nation's history, and international 
practice. The United States employed a military commission to try eight 
Nazi saboteurs during World War II. At the conclusion of that conflict, 
U.S. military commissions heard some 500 cases against enemy war 
criminals. Australia, Canada, China, France, Greece, Norway, and the 
United Kingdom used military commissions to prosecute another 1,166 
cases against war criminals. In Article 21, UCMJ, Congress expressly 
recognizes military commissions and other military tribunals as a 
lawful and legitimate means available to the President to try 
violations of the law of war. Additionally, Article 36, UCMJ, codifies 
the President's authority to prescribe pretrial, trial, and post-trial 
procedures for military commissions. That they have not been used since 
World War II constitutes acknowledgement of the necessity for their use 
only in exceptional situations. Such is the case with respect to 
international terrorists who have violated the law of war. On November 
13, 2001, the President authorized the use of military commissions in 
his Military Order, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism.'' The President took this action 
in response to the grave acts of terrorism and threats of terrorism, 
including the attacks of September 11, 2001, on the Pentagon, the World 
Trade Center, and on the civilian aircraft that crashed in 
Pennsylvania.
    After the President authorized the use of military commissions, 
work began within the DOD to establish, consistent with the President's 
order, the procedures to be used and the rights to be afforded the 
accused. This process involved working to achieve certain ends, 
including: ensuring a full and fair trial for the accused; protecting 
classified and sensitive information; and protecting the safety of 
personnel participating in the process, including the accused. The use 
of military commissions for terrorists who violate the laws of war, as 
opposed to other trial alternatives such as the Federal courts or 
military courts-martial, best provides the flexibility necessary to 
ensure that these equally important yet competing goals are attained.

                               CONCLUSION

    The contemporary battlefield has challenged members of the DOD 
legal community as intensively as it has challenged the commanders and 
soldiers, sailors, airmen, and marines they advise. The exceptional 
performance of our Judge Advocates at every level of command, and in 
particular in combat in Iraq and Afghanistan where members of the 
uniformed legal branches have been killed and wounded in action, has 
been essential to ensuring the overall excellent record of compliance 
with the law of war achieved by our Armed Forces. For this, our Nation 
should be justifiably proud.
    This success has not occurred in a legal environment without its 
share of uncertainty. This complex legal reality has generated 
significant discussions, reviews and commentaries on how issues related 
to executing national security objectives should be resolved. DOD 
lawyers, both military and civilian, have worked long and hard to 
ensure that our forces had the tools to meet this threat while 
upholding the rule of law and preserving American values. We are 
confident that Judge Advocates and DOD civilian attorneys will continue 
to make essential contributions to our efforts to reconcile the 
unconventional nature of combating these threats with the traditional 
and historically essential commitment of our Armed Forces to conduct 
disciplined military operations in compliance with the law of war.
    Established principles of law have served us well to meet the 
challenges of military operations in the war on terrorism. We are 
confident that they provide the firm foundation for meeting future 
challenges.

    Senator Graham. Admiral.

STATEMENT OF RADM JAMES M. McGARRAH, CEC, USN, DIRECTOR, OFFICE 
 OF THE ADMINISTRATIVE REVIEW OF DETENTION OF ENEMY COMBATANTS

    Admiral McGarrah. Senator Graham, members of the committee, 
I'm Admiral Jim McGarrah, Civil Engineer Corps, United States 
Navy, and I'm glad to have this opportunity to appear before 
your today. Enemy fighters being detained at Guantanamo Bay are 
being held to prevent them from returning to the fight. This is 
consistent with internationally accepted principles of the law 
of armed conflict, which allows parties to detain enemy 
fighters for the duration of hostilities. The Supreme Court 
last June affirmed the President's authority to detain enemy 
fighters during the conflict. However as we all know, this is 
not a traditional type of armed conflict and is unlikely to end 
with the signing of a formal armistice. As a result in May of 
last year, Deputy Secretary of Defense Paul Wolfowitz named 
Navy Secretary Gordon England the designated civilian official 
to oversee a process to review annually the cases of all 
detainees held under DOD control at Naval Base Guantanamo. This 
process is called the Administrative Review Board or ARB. Its 
purpose is to assess whether each enemy combatant continues to 
pose a threat to the United States or its allies or whether 
there are other factors that support continued detention. Based 
on this assessment the ARB panel can recommend to Secretary 
England that detainees be released, that they continue to be 
detained, or that they be transferred to another country, 
typically their country of nationality. Secretary England as 
the designated civilian official is the final decision maker 
for this process.
    A process like the ARB is not required either by Geneva 
Conventions or by international or domestic law; however, 
because of the highly unusual nature of the global war on 
terrorism, and because we do not want to detain any combatant 
any longer than is necessary, we have taken this unprecedented 
and historic action to establish a process to permit enemy 
combatants to be heard while a conflict is ongoing.
    While the ARB procedures were being developed last summer 
the Supreme Court issued three rulings related to detained 
combatants. Among other things a plurality of the Court cited 
Army regulation 190-8 as an example of a military process that 
might satisfy the due process requirements that the plurality 
indicated might apply. As a result, Deputy Secretary of Defense 
Wolfowitz established the CSRT. That process is to assess 
formally whether each detainee was properly detained as an 
enemy combatant and to permit each detainee the opportunity to 
formally contest the enemy combatant designation. The CSRT 
process was based on Army Regulation 190-8, though it provides 
more opportunities for detainees than that regulation, and 
specifies provisions for tribunals consistent with Article 5 of 
the 1949 Geneva Convention. The CSRT is a one-time process and 
provides each detainee with a number of opportunities: a review 
and consideration by a neutral decisionmaking panel composed of 
three commissioned military officers sworn to execute their 
duties faithfully and impartially; to attend all open portions 
of the proceedings if the detainee desires; to call relevant 
and reasonably available witnesses; to question witnesses 
called by the tribunal; to testify in his own behalf if he 
desires; to receive assistance of an interpreter; and when 
necessary to freely decline to testify.
    The CSRT also provides more processes and protections than 
Army Regulation 190-8. A detainee can receive assistance from a 
military officer to ensure he understands the process and the 
opportunities available and to prepare for the hearing.
    The CSRTs contain express qualifications to ensure the 
independence and lack of prejudgment of the tribunal members. 
The CSRT recorder is obligated to search Government files for 
evidence suggesting that the detainee is not an enemy 
combatant. In advance of the hearing the detainee is provided 
with an unclassified summary of evidence supporting his enemy 
combatant classification. The detainee is allowed to introduce 
relevant and reasonably available documentary evidence, and the 
result of every CSRT is automatically reviewed by a higher 
authority who is empowered to return the record to the tribunal 
for further proceedings if appropriate.
    The tribunals make their decision by majority vote based on 
preponderance of the evidence. In less than 6 months tribunal 
hearings were conducted on all 558 detainees under DOD control 
at Guantanamo Bay. The CSRT panels determined that 520 of those 
detainees were properly classified as enemy combatants, and 
that 38 detainees no longer met the criteria for designation as 
enemy combatants. Those found no longer to meet the criteria 
for enemy combatant designation were processed for release. To 
date, 23 have been released and DOD continues to work closely 
with Department of State to effect the release of the remaining 
15.
    While the one-time CSRTs were winding down, we started the 
ARB process. The first Administrative Review Board was 
conducted in December of last year. The ARB process is still 
ongoing and we expect to complete the first annual review for 
all eligible detainees by the end of this calendar year. The 
ARB process is similar to the CSRT in the opportunities it 
affords detainees to have their cases reviewed by a neutral 
panel of decisionmakers and to participate in the proceedings. 
The ARB panels make their assessments on whether there is 
reason to believe the enemy combatant no longer poses a threat 
to the United States or its allies or any other factors bearing 
on the need for continued detention. We coordinated within DOD 
and across many U.S. Government agencies to acquire relevant to 
each detainee. Additionally, unless national security concerns 
dictate otherwise we coordinate through Department of State to 
provide each detainee's home nation the opportunity to provide 
information, including the opportunity to submit information 
from family members. To date, we have completed 164 ARB 
hearings at Guantanamo Bay. Secretary England has made final 
decisions in 70 of these cases. Those decisions were that 4 
detainees should be released, 25 detainees should be 
transferred, and 41 detainees should continue to be held in 
detention. We have notified Department of State, and they are 
pursuing the appropriate assurances from detainees' countries 
of nationality.
    The ARB and CSRT processes have required significant time 
and resources, but we must do this right because there are two 
sides to the fairness coin. First, fairness to the American 
people requires that detainees who still pose a threat should 
not be released and permitted to return to terrorist 
activities. Second, fairness to the detainee as well as our 
clear desire not to detain persons any longer than necessary 
suggest that those who no longer pose a threat to the United 
States or our allies be released or transferred to their own 
countries.
    Mr. Chairman, thank you again for the opportunity to 
provide this information. I'd be happy to answer questions.
    [The prepared statement of Admiral McGarrah follows:]

           Prepared Statement by RADM James M. McGarrah, USN

    Senator Graham, Senator Nelson, and members of the subcommittee, I 
appreciate the opportunity to appear before you today.
    In May of last year, Deputy Secretary of Defense Paul Wolfowitz 
named Secretary of the Navy Gordon England the Designated Civilian 
Official (DCO) to supervise the process to review annually the cases of 
all detainees held under DOD control at the U.S. Naval Base, Guantanamo 
Bay, Cuba. Secretary England appointed me as the Director of the Office 
for the Administrative Review of the Detention of Enemy Combatants (OAR 
DEC), the organization charged with carrying out the review process. We 
solicited input from the International Committee of the Red Cross 
(ICRC), from nongovernmental organizations, and from the Ambassadors of 
countries whose nationals are detained at Guantanamo Bay, and then 
worked across all U.S. Government agencies to develop a rigorous and 
fair review process called the Administrative Review Board (ARB). The 
purpose of the ARB process is to assess annually whether each enemy 
combatant at Guantanamo continues to pose a threat to the United States 
or its allies, or whether there are other factors that would support 
the need for continued detention. Based on this assessment, the ARB 
panel can recommend to Secretary England that individual detainees be 
released, continue to be detained, or be transferred to another 
country, typically the detainee's country of nationality. Secretary 
England, as the DCO, is the final decisionmaker for this process.
    While the ARB procedures were being developed last summer, the U.S. 
Supreme Court issued three rulings related to detained enemy 
combatants. Among other things, the Court in one of those cases held 
that Federal courts have jurisdiction, under the Federal habeas corpus 
statute, 28 U.S.C. Section 2241, to hear challenges to the legality of 
the detention of Guantanamo Bay detainees. In another one of those 
cases, a plurality of the Court cited Section 1-6 of Army Regulation 
190-8 as an example of military regulations that would suffice to 
satisfy the due process requirements that the plurality indicated would 
apply to a U.S. citizen held as an enemy combatant in the United 
States. In light of those decisions, the Deputy Secretary of Defense 
established the Combatant Status Review Tribunal (CSRT) process to 
assess formally whether each detainee was properly detained as an enemy 
combatant and to permit each detainee the opportunity to contest the 
enemy combatant designation. The CSRT process was based on Army 
Regulation 190-8, which provides policy, procedures and 
responsibilities for the handling of prisoners of war and certain other 
detainees. Specifically, it outlines provisions for tribunals that 
exceed the requirements of tribunals that implement Article 5 of the 
1949 Geneva Convention Relative to the Treatment of Prisoners of War 
(GPW), which requires a competent tribunal to determine the status of 
belligerents in cases where any doubt arises as to whether a 
belligerent satisfies the requirements for prisoner of war status. The 
CSRT is a one-time process, and provides each detainee with the 
following opportunities consistent with Army Regulation 190-8:

         The opportunity for review and consideration by a 
        neutral decisionmaking panel composed of three commissioned 
        military officers sworn to execute their duties faithfully and 
        impartially. The tribunals make their decisions by majority 
        vote, based on the preponderance of the evidence;
         The opportunity to attend all open portions of the 
        proceedings if he desires;
         The opportunity to call witnesses on his behalf, if 
        those witnesses are relevant and reasonably available;
         The opportunity to question witnesses called by the 
        tribunal;
         The opportunity to testify on his own behalf if he 
        desires;
         The opportunity to receive assistance of an 
        interpreter, when necessary; and
         The opportunity freely to decline to testify

    The CSRT process also provides more process and protections than 
Army Regulation 190-8:

         The detainee is given the opportunity to receive 
        assistance from a military officer to ensure he understands the 
        process and the opportunities available, and to prepare for his 
        hearing.
         The CSRTs contain express qualifications to ensure the 
        independence and lack of prejudgment of the tribunal
         The CSRT Recorder is obligated to search government 
        files for evidence suggesting the detainee is not an enemy 
        combatant
         In advance of the hearing, the detainee is provided 
        with an unclassified summary of the evidence supporting his 
        enemy combatant classification
         The detainee is allowed to introduce relevant and 
        reasonably available documentary evidence
         The result of every CSRT is automatically reviewed by 
        a higher authority, who is empowered to return the record to 
        the tribunal for further proceedings, if appropriate.

    Secretary England appointed me as the Convening Authority for the 
CSRT process. The CSRT tribunal panels were the decision makers in this 
process. In my Convening Authority review, I could either approve a 
panel's decision or return a case for further deliberations. In less 
than 6 months, tribunal hearings were conducted on all 558 detainees 
under Department of Defense control at Guantanamo Bay. Of the 558 cases 
heard, the CSRT panels determined that 520 detainees were properly 
classified as enemy combatants, and that 38 detainees no longer met the 
criteria for designation as enemy combatants. Those found no longer to 
meet the criteria for enemy combatant designation were processed for 
release. Twenty-three have been released; the DOD continues to work 
closely with Department of State to effect the release of the remaining 
15 detainees.
    The first Administrative Review Board was conducted on December 14, 
2004. The ARB process is ongoing, with the expectation that we will 
complete the first annual review for all eligible detainees by the end 
of this calendar year. The ARB process provides each eligible detainee 
with the following opportunities:

         The opportunity for review by a neutral decisionmaking 
        panel of three commissioned military officers sworn to execute 
        their duties faithfully and impartially. The tribunals make 
        their assessments, in writing and by majority vote, on whether 
        there is reason to believe the enemy combatant no longer poses 
        a threat to the United States or its allies and any other 
        factors bearing on the need for continued detention;
         The opportunity to attend all open portions of the 
        proceedings;
         The opportunity to testify on his own behalf if he 
        desires;
         The opportunity to receive assistance of an 
        interpreter, when necessary; and
         The opportunity to receive assistance from a military 
        officer to ensure he understands the process, and to prepare 
        for his hearing.

    Again, the intent of the ARB process is to assess annually whether 
each detainee continues to pose a threat to the U.S. or its allies and 
to recommend whether each detainee should continue to be detained, 
released, or transferred.
    In order to accomplish this assessment, we coordinate within the 
Department of Defense, and with the Department of State, Department of 
Justice (including the Federal Bureau of Investigation), Central 
Intelligence Agency, Department of Homeland Security, and the National 
Security Council staff to acquire information relevant to each 
detainee's situation. Additionally, unless national security concerns 
dictate otherwise, we coordinate through the Department of State to 
provide each detainee's home nation the opportunity to provide 
information, including the opportunity to submit information from the 
detainee's family.
    To date, we have completed 164 ARB hearings at Gitmo. Secretary 
England has made the final decisions on 70 of these cases, that 4 
detainees should be released, 25 detainees should be transferred, and 
41 detainees should continue to be detained. We have notified 
Department of State, and they are pursuing the appropriate assurances 
from the detainees' countries of nationality.
    A process like the ARB is not required by either the Geneva 
Conventions or international law; it is discretionary on the part of 
the U.S. Government. There are no absolutes and this process does 
contain some risk to American citizens, for example, the possibility of 
releasing a detainee who returns to the fight against U.S. forces.
    However, to do it right, the ARB and CSRT processes have required 
time, and have not been without their challenges. For example, the 
pursuit of off-island witness input for CSRT hearings was very time 
consuming, and we have received very little input from home countries 
in the ARB process. But we must do this right, because there are two 
sides to the fairness coin. First, fairness to the American people 
requires that those in detention who still pose a threat should not be 
released and permitted to return to terrorist activities. Second, 
fairness to the detainee, as well as our clear desire not to detain 
persons any longer than necessary, would suggest that those who no 
longer pose a threat to the United States or our allies be released or 
transferred to their own countries.
    However, because of the highly unusual nature of the global war on 
terrorism, and because we do not want to detain any combatant any 
longer than is necessary, we have taken this unprecedented and historic 
action to establish a process to permit enemy combatants to be heard 
while a conflict is ongoing.
    Mr. Chairman, thank you again for the opportunity to provide you 
this information. I am happy to answer any questions you or your 
subcommittee members might have regarding the CSRT or ARB processes.

    Senator Graham. Admiral.
    General Hemingway.

   STATEMENT OF BRIG. GEN. THOMAS L. HEMINGWAY, USAF, LEGAL 
ADVISOR TO THE APPOINTING AUTHORITY FOR THE OFFICE OF MILITARY 
                          COMMISSIONS

    General Hemingway. Mr. Chairman, members of the committee, 
I'm Brigadier General Thomas L. Hemingway. I'm the legal 
advisor to the appointing authority in the Office of Military 
Commissions, and I'm pleased to discuss the operations of the 
Office of Military Commissions.
    America is at war. It's a war as tangible as the blood and 
dust that littered the streets of Manhattan on September 11. In 
response to the attacks on the United States, the President 
established military commissions to try those noncitizen 
members of al Qaeda and other persons engaging in specified 
terrorist activities who are alleged to have committed 
violations of the law of wars and related offenses.
    Military commissions tried enemy combatants for violations 
of the law of war in many of the conflicts in which the United 
States has been involved. The President has determined that 
military commissions shall be full and fair trials. However, 
the application of the Federal rules of evidence have been 
deemed impracticable. The President's military order focuses on 
the unique factors of the ongoing hostilities and affirms that 
national security interests require the continued application 
of U.S. national security laws in developing commission 
instructions and regulations, consistent with a full and fair 
trial for each accused.
    One DOD directive, six commission orders, nine separate 
commission instructions, and three appointing authority 
regulations implement military commission processes. Our 
commission rules which afford an accused multiple procedural 
protections, balanced with national security interests, compare 
favorably to those being used in the international criminal 
tribunal for Rwanda and the international criminal tribunal for 
the former Yugoslavia. The Office of Military Commissions has 
taken key steps to move the commission processes forward. 
Trials commenced in 2004.
    Trials are stayed pending an appellate court decision in 
the case of Mr. Hamdi. Counsel for Mr. Hamdi brought action in 
United States District Court to review the legality of military 
commissions. The court recognized the authority of the 
President to establish military commissions to try offenders or 
offenses that by statute or the law of war may be tried by 
military commission and a review panel as an appeals mechanism. 
However the court raised concerns about the exclusion of the 
accused during the hearing of classified and protected 
information. The Government has appealed this ruling. The 
delays to the commission process are directly attributable to 
the exercise of the accused's ability to challenge that process 
in Federal courts.
    The ongoing global war on terrorism continues to pose 
unique challenges. Neither the United States nor the 
international community contemplated a non-state organization 
having the capability to wage war on a global scale. Military 
commissions are the appropriate forum to preserve safety, 
protect national security, and provide for full and fair trials 
consistent with our standards and those of the international 
community. Thank you, Mr. Chairman.
    [The prepared statement of General Hemingway follows:]

       Prepared Statement by Brig. Gen. Thomas L. Hemingway, USAF

    Mr. Chairman and members of the subcommittee: I am Brigadier 
General Thomas L. Hemingway. I am the Legal Advisor to the Appointing 
Authority for the Office of Military Commissions. I am pleased to 
discuss the operations of the Office of Military Commissions, the 
protections afforded accused before Military Commissions, and the 
current status of cases pending before Military Commissions.
    America is at war. This war is not a metaphorical war; it is as 
tangible as the blood, the dust, and the rubble that littered the 
streets of Manhattan on September 11, 2001. The reality of this war 
could be seen in the faces of those who stood in stark horror as they 
saw helpless, innocent people fall and jump to their deaths from the 
Twin Towers. In response to the attacks on the United States on 
September 11, 2001, the President established military commissions to 
try those non-citizen members of al Qaeda and other persons engaging in 
specified terrorist activities who are alleged to have committed 
violations of the law of war and related offenses.
    The use of military commissions predates the formation of our 
republic. Since the Revolutionary War, the United States has used 
military commissions to try enemy combatants for law of war violations. 
In the Mexican-American War, during the Civil War, following the Civil 
War, during and after World War II, military commissions were used to 
try enemy combatants for violations of the laws of war. In the 
President's Military Order establishing military commissions, he 
mandated that the accused shall be afforded full and fair trials. The 
President also determined that the Federal Rules of Evidence are not 
practicable for military commissions given the nature of the conflict. 
This determination is based on the unique factors present in conducting 
judicial proceedings against suspected war criminals at a time when the 
United States is actively engaged in an on-going armed conflict. 
Instead of the Federal Rules of Evidence, military commissions have 
adopted the internationally accepted standard for admissibility of 
evidence--probative value.
    The President's Military Order focuses on the unique factors of the 
current ongoing hostilities and affirms that national security 
interests require the continued application of U.S. national security 
laws in developing commission instructions and regulations consistent 
with the accused's right to a fair trial. These orders, instructions, 
and regulations afford an accused the following rights:

          1. Presumption of innocence
          2. Trial before an impartial and independent panel of three 
        to seven officers
          3. Notification of charges in language understood by the 
        accused
          4. Call witnesses and present evidence
          5. Cross-examine witnesses and examine evidence
          6. Election not to testify at trial with no adverse inference
          7. Appointment of military counsel at no cost to defendant 
        and right to hire civilian counsel at no expense to the 
        government
          8. Privileged communications with defense counsel
          9. Adequate support and resources to defense counsel
          10. Appointment of interpreters and translators
          11. Open proceedings, except as absolutely necessary to 
        protect national security
          12. Proof of guilt beyond a reasonable doubt
          13. Review of the record of trial by a three-member review 
        panel

    The rules of evidence and procedure established for trials by 
military commission compare favorably to those being used in the 
International Criminal Tribunal for Rwanda and the International 
Criminal Tribunal for the former Yugoslavia. These rules are consistent 
with our National commitment to adhere to the rule of law.
    The Office of Military Commissions has taken key steps in moving 
the commission process forward. To date, the President has determined 
that 12 detainees currently at Guantanamo are subject to his Order. The 
Appointing Authority, John D. Altenburg, has approved charges against 
four accused and referred these charges to military commissions for 
trial. Those trials commenced late in the summer of 2004. The Office of 
Military Commissions has been working diligently to convene military 
commissions; however, the trials are stayed pending an appellate court 
decision in the case of Mr. Hamdan. Military and civilian counsel for 
Mr. Hamdan brought an action in the United States District Court to 
review the legality of trial by military commissions. The district 
court affirmed the legality of military commissions to try violators of 
the law of war and a review panel as an appeals mechanism; however, the 
Court raised concerns about the commission process whereby an accused 
may be excluded from the hearing to protect classified and protected 
information. Because this protection is essential to the continued 
effectiveness in our current war on terror, the government has appealed 
this ruling. The delays to the commission process are directly 
attributable to the exercise of the accused's ability to challenge that 
process in the Federal courts. While the appeal is pending, 
investigations and submissions of charges against additional accused 
continue.
    This is the first time since World War II that the United States 
has had a need to convene military commissions. While it is important 
to move quickly back to trial, the Office of Military Commissions' 
movement forward is measured with full awareness and consideration of 
the rights of an accused and the needs of our Nation.
    The ongoing global war on terrorism continues to pose many unique 
challenges in an asymmetrical battlefield. Neither the United States 
nor the international community contemplated a non-state organization 
having the capability to wage war on a global scale. Military 
commissions are the appropriate forum to preserve safety, protect 
national security, and provide for full and fair trials consistent with 
our standards and those of the international community.

    Senator Graham. Thank you, General. We are in a series of 
votes, and we'll try to keep the committee process going the 
best we can. Thank you all for your testimony and showing up.
    One of your statements, General Hemingway, I totally agree 
with. No one has really contemplating this kind of war before. 
But we are past the contemplation stage, we are in it, and we 
are learning. We are adjusting, and overall, I think we've done 
a very good job.
    Number one, military tribunals are the way to go. I 
totally, completely agree with the concept with which you had 
started. Enemy combatant status is a legitimate legal status to 
confer on certain people. I don't want to do away with it; I 
want to be sure it operates in a way that the courts will sign 
off on and we can move forward in terms of world image to show 
the world that an enemy combatant can be fairly determined, the 
status can be fairly challenged, and they will stay there as 
long as they need to, to keep this country and the world safe 
from people who want to do harm.
    In terms of intelligence gathering, the stress, physical 
and psychological, that can be applied, should be applied. 
Let's just do it in a way that doesn't create a black eye. The 
reforms that you've made are very good.
    My central theme here is that under Article 1, Section 8, 
Clause 11 it says Congress shall have the power to make rules 
concerning captures on land and water, among other things. Mr. 
Dell'Orto, do you agree with this general proposition, that the 
courts who have reviewed enemy combatant status and the 
tribunal system that's currently in effect, have on more than 
one occasion spoken to the idea that Congress should get 
involved. Justice Scalia is very direct about that in his 
opinion, that Congress should help give us guidance. Because to 
do this by habeas review, I think, is a hodgepodge of 
inconsistent legal decisions that will be appealed forever.
    No matter what the Court of Appeals decides in the case you 
just mentioned, General Hemingway, there will be an appeal, and 
this could go on for a while. So what I'm proposing, or the 
idea that I'm suggesting, is do you believe congressional 
action in defining enemy combatant status and approving a 
military tribunal system, would that be well received by the 
courts? Would that help us in terms of our current legal 
situation? What would your opinion be of that?
    Mr. Dell'Orto. Mr. Chairman, my view is, as I think I 
expressed in the opening statement, that the framework of laws 
under which we currently operate give us the ability to 
prosecute the war under the rule of law as it currently stands 
and that legislation is not necessary. I believe the courts 
ultimately will see their way through these issues and I 
believe they have already indicated that. As I indicated during 
those opening remarks, the Supreme Court has determined----
    Senator Graham. So it your legal opinion that a statute 
passed by Congress determining enemy combatant status would not 
have a preferred legal position in courts, versus what you're 
currently doing?
    Mr. Dell'Orto. I'm not sure that it would. I can't predict 
how a court would rule given a statute presented to it. I do 
say at this point in the absence of any legislation to that 
effect, the courts I believe are aligning themselves in such a 
way, and it may take decisions by the Supreme Court that 
continue to affirm the framework under which we are currently 
operating.
    Senator Graham. I'm going to have to vote. I'll continue my 
line of questioning here a bit later. Senator Nelson.
    Senator Ben Nelson. Thank you, Mr. Chairman. Mr. Dell'Orto, 
in categorizing the detainees in custody as enemy combatants, 
can you enlighten us on the kind of treatment that they would 
be entitled to or the kind of treatment that would be outside 
the limits of acceptable treatment?
    Mr. Dell'Orto. Under the determinations that have been made 
to date on the war on terrorism by the President, in confirming 
what the Secretary of Defense had directed on January 19, 2002, 
the baseline standard is humane treatment; but to the extent 
that a treatment is appropriate and consistent with military 
necessity, the treatment should also be consistent with the 
principles of Geneva. So we have, at least we have a baseline 
standard, a minimum standard under all circumstances, and a 
standard to which we should be ascribing consistent with our 
military needs in these ongoing operations and this ongoing 
conflict.
    Senator Ben Nelson. In her opinion in the Hamdi case, 
Justice O'Connor made the statement that the Government has 
never provided any court with the full criteria that it uses in 
classifying individuals as enemy combatants. Is there a 
definition that is accepted internationally as to what an enemy 
combatant is? Does this include what Justice O'Connor would 
refer to as full criteria?
    Mr. Dell'Orto. I'm not sure that I have the precise answer 
to that question, Senator. Again, we have people who have taken 
up arms who are engaged in hostilities against a foreign 
government. In this instance, it does incorporate the acts of 
al Qaeda as a non-nation state actor in addition to the acts of 
the Taliban as a part of what was then the Afghan Government.
    Senator Ben Nelson. Would anybody else have any thoughts 
about the full definition or the full criteria might constitute 
a definition? I guess you're on your own. I appreciate that.
    I know that each Service has a fairly extensive, maybe 
broadly extensive training program for judge advocates and part 
of the training includes the doctrine for dealing with 
detainees in military operations. Could each of you describe 
what your doctrine is by Service, for handling detainees? In 
doing so, is there interservice consultation to maintain some 
consistency within each branch? Maybe, General Romig, you might 
lead off.
    General Romig. Thank you, Senator. Well, the baseline 
starting point is we train them on the international 
conventions, the Geneva Conventions and what the law of war 
requires. That's done at the entry stage in the basic courses. 
All of the basic courses in all of the Services train the 
Geneva Conventions and law of war, and with a historical 
overview of how it's been planned in the past and that sort of 
thing.
    We also do a lot of joint training. We have courses at our 
school. There are courses at the Air Force and the Navy school 
that we send people to. So we do law of war courses, specific 
law of war courses, operational law courses where they actually 
address what needs to be done in the legal environment as far 
as handling of detainees and the different statuses of 
different kinds of detainees: prisoners of war, civilians, 
unlawful combatants, those sorts of things.
    Senator Ben Nelson. Do you feel that there is sufficient 
definition, or clarification, at the present time to be able to 
deal with the detainees at Guantanamo?
    General Romig. Well yes, sir, because al Qaeda and the 
Taliban are individuals not subject to the Geneva Conventions. 
They are not parties to a conflict, they don't meet any of the 
definitions for criteria under the Geneva Conventions for 
lawful combatants. So I think however you look at it, yes, 
there is sufficient definition for them to address that.
    Now, it's a different situation in Iraq where we are 
dealing with the conventions. Our people know what the rules 
are in that environment, too, as far as whether they are POWs 
or under the civilians convention and that sort of thing.
    So I think if we had a very precise definition, it would 
end up perhaps being too restrictive on the ability of 
commanders and soldiers and lawyers to work within the 
international treaties.
    Senator Ben Nelson. Does your service doctrine permit 
degrading, abusive, or humiliating treatment?
    General Romig. No, sir, it does not. In fact, under the 
UCMJ that would be an offense, maltreatment of subordinates. We 
have, in fact, court-martialed and taken other action against a 
number of people in Iraq and other places that have engaged in 
that. In fact, we've tried 197 people for detainee abuse since 
the war on terrorism started.
    Senator Ben Nelson. So the standard of humane treatment 
raises certain questions about what constitutes still 
acceptable treatment under the Army doctrine, is that accurate?
    General Romig. The baseline is pretty clear, Senator. 
Humane treatment means you protect them, you clothe them, you 
feed them, you give them medical care, you give them a 
religious accommodation, and you account for them. All of these 
basic baseline items that we are doing, everybody is trained on 
that; they know that.
    In addition, all of our people are trained that when you 
capture somebody on the battlefield, you initially treat them 
as a POW. That is the highest status that they can have on the 
battlefield is a POW. We train everyone to initially treat 
whoever they capture as a POW. They don't make a determination 
whether they are an unlawful combatant or otherwise.
    Senator Ben Nelson. Thank you. My time has expired.
    Senator Roberts.
    Senator Roberts. Thank you, Mr. Chairman. Gentlemen, allow 
me to start by thanking you for being here today, all of you, 
and for your service to the country. In past weekend, I visited 
Gitmo along with Senator Hagel. Many others have gone before 
me, and I'm very pleased to hear that the chairman of the full 
committee will be going down along with the chairman of the 
subcommittee.
    I think this is an operation that today we can be proud of. 
Were there mistakes in the past, yes, but certainly not today 
in regards to what many of our concerns are.
    As has been said, we all have the best interest in ensuring 
that those released through the ARB process, or the CSRT--we 
get into a lot of acronyms here--do not pose a threat to 
American or coalition soldiers overseas, do not maintain the 
desire or capability to levy attacks on our homeland and are of 
no further value to the military or law enforcement agencies 
with regard to the intelligence that they may possess. So I 
have a couple of questions in that regard.
    I'm concerned about releasing the detainees that should not 
be released. We just can't afford to be making any mistakes 
when it comes to releasing releasing some of these enemy 
combatants, I call them terrorists. We all know that for 
violations of domestic law, we often find that offenders who 
are released reappear as repeat offenders. All the newspapers 
and media are replete with coverage of that. If we release the 
wrong detainee, he's a repeat offender, it could result in the 
death of American troops or an attack on our homeland. So what 
assurance can you give us that every new effort is being made 
to ensure that this does not happen?
    Mr. Dell'Orto. Senator, I'll take that. In attempting to be 
flexible in this particular war, early on it was determined 
that we would have to consider releasing some people over time 
because of the, at least the apparent indefinite duration of 
the conflict. Now, I would point out that any conflict appears 
at various points in time as one that will be indefinite. I 
mean, it's a balancing test. Having made the decision that we 
don't want to detain people unnecessarily, beyond the time we 
consider them a threat, you have to go on the available 
information. So we do our best to screen, and have from the 
earliest days, screen these people and reassess the threat that 
they pose, based on additional information we receive or 
indications they give us, as they're on the grounds at 
Guantanamo, as to what the future may hold.
    It's not perfect. I cannot give you a 100-percent 
guarantee. If this were a normal conflict, we would hold every 
one of these people until the cessation of hostilities. We 
don't know when that will be. But for the moment we are trying 
to strike a balance between not keeping them too long and yet 
ensuring that those who pose a threat of significance are not 
released.
    Senator Roberts. You've testified extensively concerning 
the status of the detainees at Gitmo that have gone through a 
CSRT. How quickly are the new tribunals held for incoming 
detainees?
    Mr. Dell'Orto. I'll defer to Admiral McGarrah on that.
    Admiral McGarrah. Senator, the last incoming detainees to 
Guantanamo were in September of last year and they were 
immediately integrated into the schedule and those hearings 
were completed within the 6-month period that I mentioned, by 
January.
    Senator Roberts. I appreciate that. Since they were 
established in July of last year, how many instances have there 
been when a tribunal for an incoming detainee has been delayed?
    Admiral McGarrah. Sir, I wouldn't characterize any of them 
as having been delayed. They were integrated immediately into 
the schedule.
    Senator Roberts. How many instances do you know of where 
someone went through the tribunal process and was found not to 
be an enemy combatant and then found fighting against U.S. 
forces after their release, appearing on the al Qaeda Web page?
    Admiral McGarrah. Of the 38 that we have determined through 
the CSRT process, none have been found yet to have returned to 
the battlefield. There were prior processes before we 
implemented both the CSRT and ARB, and about a dozen of the 
over 200 that have been released since the start of the 
operations in Gitmo have been found to return to the 
battlefield.
    Senator Roberts. I know there was a comment earlier that 
the situation down there in regards to how we review these 
cases is a mess. I quarrel with that. I don't quarrel with the 
Senator's concern, and that Senator has been to Gitmo. But the 
tenets of ARB are the annual administrative review to review 
all reasonably available relevant information not governed by 
Federal rules of evidence, independent review, the detainee may 
actually participate and provide information during a war, to 
consider information from home country and relatives. To 
consider threat determination, intelligence, value, law 
enforcement interest and potential for war crimes charges. 
Unclassified portions of the ARBs are open to the media. There 
is a recommendation for options, i.e., release, transfer, 
detain. The Designated Civilian Official (DCO) makes the final 
decision. There is obviously the interagency communication of 
outcomes. I don't think that's a mess.
    There is a handout that you get at Gitmo, I'm not saying 
it's a handout that is just a handout. I think if you read 
through it and you look at the situation down there and the 
unique situation we face, I think this process is 
unprecedented. Never before in the history of any kind of 
warfare attack on any country has any country tried so hard to 
treat prisoners humanely and try to come up with some legal 
process whereby it can be of value and we can get, and we could 
get to where we want to be. It's historic. It's discretionary, 
it's not required by the Geneva Conventions, international or 
domestic laws. The combatants, i.e., the terrorists, can be 
heard during the ongoing hostilities. I think it's substantive, 
I think it's comprehensive, I think it's rigorous, and I think 
it's repeatable.
    Now the fact that we have not come up with some better 
definition or solved what I call a perception problem, I think 
is probably the case. But certainly, as we go through, it will 
hopefully mitigate the concern about indefinite detention 
during this very unconventional type of war. We are in an 
unconventional situation. My time has expired. I thank you 
again for your contribution.
    Senator Ben Nelson. Senator Kennedy.
    Senator Kennedy. Thank you very much, and thank all of you 
gentlemen for being here.
    We began holding these hearings on these issues more than a 
year ago. At that time the administration promised the American 
people to get to the bottom of the abuses that shocked the 
world, yet since that time we have seen neither hide nor hair 
of the General Counsel Haynes and his absence speaks volumes. 
Mr. Dell'Orto, can you tell us why he didn't come today?
    Mr. Dell'Orto. Senator, the invitation that Senator Graham 
issued came to me and I don't have any other explanation beyond 
that.
    Senator Kennedy. You have no understanding why he hasn't 
appeared here?
    Mr. Dell'Orto. No, sir.
    Senator Ben Nelson. Can I ask you, are you going to give a 
positive response to the memorandas that Senator Levin 
mentioned?
    Mr. Dell'Orto. The March 14, 2003, memorandum I responded 
to Senator Levin several weeks ago and indicated that is under 
review. I will for the purposes of this record indicate that 
that memorandum was withdrawn as an operational document, and 
so it is no longer in effect and it is no longer being 
considered a precedent of any sort.
    Senator Kennedy. What was the date of the withdrawal?
    Mr. Dell'Orto. It was certainly as recently as February of 
this year, but we were asked not to rely upon it going back to 
December of 2003. I have not relied upon it since.
    Senator Kennedy. Senator Levin obviously is going to follow 
up with this. Last year, the Federal Bureau of Investigation 
(FBI) raised serious concerns. I address this to our panel 
about the interrogation techniques at Guantanamo. The FBI 
repeatedly raised the concern that these techniques were not 
effective at producing reliable intelligence, and these 
``torture techniques,'' as they called them, would become an 
issue if military commissions were used. In the case of the 
twentieth hijacker, the FBI noted that he had been subjected to 
intense isolation for 3 months and then military working dogs 
were used to threaten him. They said he showed signs of extreme 
psychological trauma: talking to nonexistent people, reporting 
hearing voices, crouching in the corner of the cell covered 
with a sheet for hours on end.
    The interrogation techniques that were described by the FBI 
and again yesterday in graphic detail to this committee, were 
eerily reminiscent of the abhorrent practices that took place 
at Abu Ghraib: forcing a detainee to wear women's underwear on 
his head, leashing the detainee like a dog and forcing him to 
do dog tricks, intimidating detainees with military dogs, and 
stripping detainees.
    General Miller was in charge of Guantanamo when these 
abuses occurred and after that he went back to Abu Ghraib, and 
those same interrogation techniques were used. General Craddock 
yesterday said that while this treatment is degrading and 
abusive, it was not inhumane, and thus did not violate U.S. 
policy. If that is so, why in the world are lower ranking 
military police (MPs) at Abu Ghraib and Guantanamo being 
prosecuted for engaging in similar behavior, and General Miller 
is not?
    Mr. Dell'Orto. Senator, the incidents at Abu Ghraib had no 
connection to any authorized interrogation gathering effort. 
Furthermore, Abu Ghraib was conducted in a Geneva Conventions-
governed environment, and we did have different standards at 
place there.
    Senator Kennedy. I don't know whether any of the others are 
troubled by that conclusion, our situation, but I find that 
enormously troublesome myself, why we have a dual standard. We 
have been trying since the beginning to find out why the 
civilian authorities, civilian authorities, changed the rules 
and who changed them and when did they change them. Why, for 
example, in some of these meetings that the JAG offices 
actually indicated that they expressed opposition to some of 
these changes.
    This was true--when was that date?--when we had the 
hearing, the working group report on 2003. We had the report 
that the JAG offices expressed some reservations, and 
nonetheless that those reservations were overruled by General 
Counsel Haynes. Were any of the officers here today in any of 
those meetings where they expressed reservations about those 
interrogation techniques? Could I ask?
    General Romig. Yes, sir, I did attend. There was a working 
group that I and many of the members here were part of. It was 
very open and candid. We provided our input and our view of 
what was proper as far as procedures and techniques.
    Senator Kennedy. Let me just give it to you quickly if I 
could, to be precise. I couldn't find the reference earlier. I 
asked Vice Admiral Church about the legal underpinning that set 
some of these difficulties, interrogations in motion. He 
acknowledged that within the Pentagon there was disagreement 
about whether to adopt these bodies embodied in the April 2003 
working group on interrogation. He told us that it had been 
well reported that top JAG offices were under civilian 
authorities, that adopting the policies contained in the report 
would lead to undermining military culture and abuse. 
Importantly, Vice Admiral Church told the committee that the 
JAG's objections were overruled by General Counsel Haynes.
    I'm just interested whether any of those JAGs that are on 
our panel today were at that particular meeting, whether they 
expressed a view. Could any of you respond, please?
    General Sandkuhler. Senator Kennedy, I was present in the 
process along with General Romig and General Rives. We 
expressed our opinions, throughout the process, whether in 
support or against various procedures and techniques, and I 
believe our opinions were considered. The policymakers and 
decisionmakers made their decisions based upon our input, so we 
were present at those meetings.
    Senator Kennedy. You were present and you made your 
recommendations, and were the recommendations you supported 
included in the final or were they overruled?
    General Sandkuhler. I don't know if I would say they were 
overruled. They were considered, and I can't say specifically--
--
    Senator Kennedy. Were they included in the final?
    General Sandkuhler. I mean they were, our opinions were 
recognized.
    Senator Kennedy. Well, that's the best we are going to get 
from you that our views were recognized. When we have the 
testimony that it was--expressed opposition and now we have 
before the United States Senate, you're called up here on a 
panel and direct questioning you say our rules were recognized. 
I'm asking you, we have had the testimony from the director of 
this report, that said that opposition to that was expressed by 
the JAGs. I'm just asking you, were you there and did you 
express opposition, please? Can I get an answer? My time is 
running out.
    General Romig. Senator, I believe I did say that. We did 
express opposition to certain things that were being proposed. 
Other things we did not, and I believe that our opposition was, 
was accepted in some cases, maybe not in all cases. But it did 
modify the proposed list of techniques and procedures, so I 
have to say that we did have an impact. It was listened to.
    Senator Kennedy. Please, any of the others that were there?
    General Rives. Senator, along with others here on the panel 
and other senior members of the JAG Corps of the Services, as 
well as junior personnel participating, I participated in these 
discussions. Military attorneys advised on both law and policy 
considerations. On the legal issues, we come down most strongly 
as to where legal lines have to be drawn. On policy 
considerations it's very important to make sure that our 
observations based on military experience be considered. I am 
satisfied that we properly raised the concerns of what the 
legal limits are, as well as what policy considerations should 
be brought to bear, and then ultimately, the individuals 
charged with making those policy calls did take those matters 
into consideration.
    Senator Kennedy. Well, my time is up. But I do find that 
Admiral Church told the committee that the JAG's objections 
were overruled by General Haynes. That's what his testimony 
was. But we are getting different answers here today. Thank 
you.
    Senator Graham. Senator Kennedy, I'd like to pursue that a 
bit, too. I have some knowledge of it. The bottom line is that 
the DOJ memo or recommendation about what would constitute 
torture, what would be a violation of international law or 
domestic law regarding interrogation techniques, alarmed the 
JAGs who reviewed it, is that true or not? Speak up.
    General Romig. Yes, sir, that is true.
    Senator Graham. General Rives.
    General Rives. That is true, Mr. Chairman.
    General Sandkuhler. Yes, sir.
    Senator Graham. It alarmed you because you're not soft on 
terrorism, because you understand that we have been supporting 
for 60 years a certain way of doing business. That as military 
lawyers you don't want to get your troops in trouble by having 
a confusing legal situation. You don't want to do something 
that would violate the UCMJ in terms of treating people in your 
charge.
    October 7, 2004, Senator McCain, Senator Levin, and I wrote 
a letter to the Secretary of Defense requesting the 
declassification of the memos that Senator Kennedy is talking 
about. I'm not going to get into the subject matter other than 
I agree with the legal analysis. People did adjust later, to 
the Secretary's credit, when he was told several months later 
that there was a division about these interrogation techniques, 
that he basically got the input received and the interrogation 
techniques were modified based on your input.
    But I think it is I think it is fair to say that the 
Department of Defense was secondary to the DOJ in a political 
sense, and that was your problem. If they had listened to you 
from the onset, we wouldn't have a lot of the problems that we 
have dealt with in the past.
    Now I've been told by the White House that these memos are 
going to be declassified. I have asked for them a thousand 
times, almost literally, and they tell me that they have talked 
to you. Is that true, sir, about these memos?
    Mr. Dell'Orto. Yes, sir, they have.
    Senator Graham. Are we going to get them or not?
    Mr. Dell'Orto. I suspect you're going get them very soon.
    Senator Graham. Okay.
    Mr. Dell'Orto. But I would add this, Mr. Chairman, the 
contents of those memos remain very much a part of the 
deliberations of the DOD during the period of time that those 
deliberations were ongoing. They remain sensitive in that 
respect. Now, they have been classified to date, but as I 
believe you know, they've been available to you during this 
entire time for consideration.
    Senator Graham. I understand. I'm trying to use the memos 
to illustrate a point of how well off we are as a Nation, that 
we have people in uniform that can speak their mind and that 
have a good sense of balance, and all of them signed up to be 
warriors, and to advise warriors. They have had some concerns 
about the road that we are going down and there has been 
correction.
    The whole point of this hearing is not to close Guantanamo 
Bay, on my part. It's to try to bring some legal remedies or 
legal assistance to our current dilemma, and I'm going to ask 
this question again. General Hemingway, I have read these 
cases. It is clear to me that the administration position that 
Guantanamo Bay is extraterritorial, was rejected. It is clear 
to me that the courts are sympathetic to military tribunals. It 
is clear to me that the courts are sympathetic to the idea of 
enemy combatant status, but there are some legal objections for 
the way enemy combatant status is being defined. There are some 
legal concerns about the military tribunal makeup, and it's no 
one's fault.
    I supported what you were doing. I went to a press 
conference saying this is the way to go. Two and a half, 3 
years later, gentlemen, here is where we are. We are still in 
court and nobody has been prosecuted. No matter what the 
Appellate Court says, it's going to go to the Supreme Court and 
God knows how long that's going to take. So what I'm trying to 
offer is under Article 1, Section 8, Clause 11, Congress has 
the power to regulate captures on land and sea.
    I'm trying to put on the table a collaborative process 
where we can come up with a definition of enemy combatant 
status where Senator Levin and I and the President can agree 
what it means, put it in a statute, that we can come up with 
the idea that military tribunals are an appropriate way to try 
terrorists, and have a procedure that protects the homeland 
that will be seem internationally as fair, and is not a Federal 
Court system, not an UCMJ system. I'm trying to offer the idea 
that statutory involvement will break this legal logjam.
    My question to you, General Hemingway: Do you believe that 
if a statutory definition were offered by Congress and 
statutory blessing of military tribunals were offered by 
Congress, would the courts receive that in a preferential way 
over the current system? Do you believe that would be the case?
    General Hemingway. Senator, I can't divine what the courts 
would say, but I think that the definitions that Congress has 
already provided us under the UCMJ, Title X Section 821, are 
adequate. I think the rules and procedures that the executive 
has established currently are adequate, and I don't know of any 
statutory way to convince the courts to recognize the doctrine 
of abstention.
    Senator Graham. Are you familiar with Justice Scalia's 
comments about the role of Congress and his opinion regarding 
the status of Guantanamo Bay? What do you think he is telling 
us?
    General Hemingway. His comments were not addressed to me, 
Senator.
    Senator Graham. They were addressed to the Nation. He is 
telling us Congress needs to get involved, because the courts 
do not want to run this war through habeas corpus, or habeas 
relief. They don't feel comfortable doing that, but that's 
exactly where we are. What I am proposing is that we correct 
that, that we don't change the concepts, we improve them, and 
that you get blessing by Congress.
    Mr. Dell'Orto, do you believe that if a congressional 
action were taken where the President could agree about enemy 
combatant status and military tribunal makeup, that it would 
enhance the status of Gitmo because you have congressional buy-
in?
    Mr. Dell'Orto. Mr. Chairman, the President has powers under 
the Constitution. He has Congress's authorization of September 
18, 2001. I believe under Supreme Court precedent, that gives 
him an awful lot of authority to run this war. I would also say 
that----
    Senator Graham. Do you believe we have authority as 
Congress to regulate captures on land and sea?
    Mr. Dell'Orto. I'd have to take a look at that particular 
constitutional provision; I haven't examined that one of late, 
but if that's what it says, I suspect you have that authority 
to attempt to legislate. I would also say, though, and this 
goes back to your other comment about a bunch of lawyers in 
this room, regardless of what happens, whether there be 
legislation or no legislation, we are going to stay in 
litigation. That is the type of world in which we live today, 
for better or worse. As we, our office and I, deal with 
legislation every day and I'd like to think it's perfectly 
clear when we interpret it, when we get it on the ground. 
That's not necessarily the case.
    So again, I do not mean to be glib in any way, but I don't 
know that that's a panacea for any problem we might have right 
now, and I don't think we need additional authorities.
    Senator Graham. The point is we are in litigation and it's 
going to continue. The courts are telling us in my opinion that 
a statutory definition or congressional involvement would be 
given more weight. You don't agree with that general legal 
concept, that courts tend to defer to legislative bodies versus 
executive action when it comes to something like this?
    Mr. Dell'Orto. I think they tend to do that in most 
instances. But again, when we are talking about the waging of 
war overseas, perhaps in the country, that historically there 
is much more latitude given to the President.
    Senator Graham. Given our current litigation stalemate 
where we are under a stay of prosecution, would anybody venture 
a guess as to when we will be able to prosecute someone at 
Guantanamo Bay, who God knows deserves it? One year, 2 years? 
Six months? Does anybody have any idea when we can finally 
bring somebody to justice down there?
    Mr. Dell'Orto. Mr. Chairman, I believe we are waiting for 
the D.C. Circuit's decision in Hamdi very soon. It's on 
expedited appeal.
    Senator Graham. What would happen after that? What is the 
most likely legal scenario?
    Mr. Dell'Orto. Within a short period of time, General 
Hemingway may have a better prediction on this, but probably on 
the order of 30 to 45 days, if not sooner, we'd be back----
    Senator Graham. Will it be appealed to the Supreme Court?
    Mr. Dell'Orto. I would assume that if we lose, we will 
appeal to the Supreme Court. I assume that if the Defendant 
loses he may attempt to.
    Senator Graham. General Hemingway, how long will it be 
before we have someone prosecuted at Guantanamo Bay?
    General Hemingway. Senator, assuming that the mandate of 
the court removes the restraining order, I think that Mr. 
Dell'Orto's assessment of 30 to 45 days is correct. We will be 
back underway trying cases at Guantanamo.
    Senator Graham. I'm sorry. Could you repeat that.
    General Hemingway. Surely. Assuming that the Circuit Court 
in its mandate overturns the restraining order in the Hamdi 
case, we will be back underway and trying cases at Guantanamo 
in 30 to 45 days after that's removed.
    Senator Graham. Okay. Is that the best case scenario?
    General Hemingway. That's correct.
    Senator Graham. What is the worst case scenario?
    General Hemingway. That we'd be delayed pending a Supreme 
Court decision.
    Senator Graham. How long will that be?
    General Hemingway. Your guess is as good as mine, Senator.
    Senator Graham. I understand, General.
    All right. Enemy combatant status. It's my understanding 
that a Federal Court has reviewed the enemy combatant status 
procedure and found fault, is that correct? There's a District 
Court decision on that, is that right?
    General Hemingway. Judge Green.
    Senator Graham. How long will it take for that to work its 
way through the legal system?
    General Hemingway. It's my understanding that's scheduled 
for argument October 6, 2005.
    Senator Graham. What level of Federal Court are we in now? 
Judge Green is a District Court judge?
    General Hemingway. That's correct.
    Senator Graham. All right. You would imagine if we lost we 
would appeal, and I'm saying we, I'm on the home team here. If 
the other side lost, I imagine they would appeal, is that 
correct?
    General Hemingway. That's correct.
    Senator Graham. It goes to the appellate court system. I 
would imagine the same scenario. The bottom line is, a 
reasonable view of the legal situation we currently find 
ourselves in at Guantanamo Bay regarding prosecution ability 
and enemy combatant status, it looks a long time before we get 
this resolved under the current model. I believe we could bring 
it to closure much quicker through statutory definitions and 
involvement. That is the point of this hearing from my 
perspective.
    The administration, like every administration, is probably 
reluctant to cede anything, but as Senator Levin works his way 
back, the war is beyond military engagement. It is a 
combination of forces, military engagement being one of them. 
We need buy-in to win this war, gentlemen. We don't need to be 
up here arguing with ourselves all the time. We don't need to 
be looking back. I do believe there is a window of opportunity 
here, where we can come together as a Congress and an 
administration and give definition and certainty to the 
concepts at Gitmo which are legitimate and protect this 
country.
    If we continue to resist adjusting, if we have to wait 
months for memos that show the good side, not the bad side, we 
are hurting ourselves. This may be above your pay grades, but I 
wanted you to hear that from me. We are missing a golden 
opportunity, gentlemen, to get this war on a legal track that 
will allow us to take it to this enemy, and we can't afford any 
more political fights than we already have on our hands. With 
that, I'll recognize Senator McCain.
    Senator McCain. Thank you. Mr. Dell'Orto, under DOD rules 
for the military commissions defendants will lack an 
independent appeal. They can appeal up the chain of command 
within DOD, but not to U.S. Federal Courts or to the U.S. Court 
of Appeals. What is the rationale behind that decision?
    Mr. Dell'Orto. Sir, military commissions are function of 
the President's commander and chief authority as authorized by 
Congress. As such, they are his war powers; and it's 
appropriate to keep the entire process of military commissions 
within the executive branch for the purposes of that review.
    Senator McCain. These are classified as military 
combatants, the prisoners in Guantanamo, is that right?
    Mr. Dell'Orto. Enemy combatants, Senator.
    Senator McCain. Enemy combatants. The definition of enemy 
combatant is that the Geneva Conventions are applicable or not 
applicable? You can leave it on for a minute. We are going to 
have a little exchange here, Mr. Dell'Orto.
    Mr. Dell'Orto. For purposes of detainees at Guantanamo.
    Senator McCain. Yes.
    Mr. Dell'Orto. Those who are detained pursuant to the war 
on terrorism. I'm keeping Iraq completely aside.
    Senator McCain. Well, yes. In other words, those captured 
in Afghanistan, which is the population of Guantanamo. The 
reason I keep focusing on Guantanamo is because the public is 
focusing and the media is focusing on Guantanamo. Go ahead, 
please.
    Mr. Dell'Orto. They are determined to be enemy combatants 
captured on the battlefield. Given the way, either their lack 
of nation state organization, if you will----
    Senator McCain. But they were in a nation that was governed 
by the Taliban, as horrible as that government may have been.
    Mr. Dell'Orto. Now let me make the distinction between the 
two categories, Senator. For al Qaeda, not part of any nation 
state, not part of any government--
    Senator McCain. How do you separate the Taliban from al 
Qaeda?
    Mr. Dell'Orto. The al Qaeda have their own agenda. They are 
not operating on behalf of the Afghan Government. Their agenda 
goes back quite some time before the Taliban.
    Senator McCain. Al Qaeda and the Taliban didn't work hand 
and glove in Afghanistan?
    Mr. Dell'Orto. I believe they did to advance particularly 
the al Qaeda's interest.
    Senator McCain. So you capture somebody on the battlefield 
and he says to you, ``I'm al Qaeda'' or ``I'm part of the 
Taliban,'' is that how you differentiate?
    Mr. Dell'Orto. You sort them out based upon the fact that 
they were bearing arms on the battlefield, you police them up, 
and you then begin your process of interrogation.
    Senator McCain. They're on the battlefield, they are 
captured. You see one guy and you say okay, you're part of the 
Taliban army and you, you are part of al Qaeda. There are two 
different methods of treatment, is that correct? Is that what 
you're saying?
    Mr. Dell'Orto. You receive the same treatment, but you get 
to that point through slightly different analysis.
    Senator McCain. So you determine that someone is Taliban, 
which was the government, either legitimate or illegitimate, of 
Afghanistan. Are they eligible for the treatment under the 
Geneva Conventions?
    Mr. Dell'Orto. Taliban are not.
    Senator McCain. Taliban are not.
    Mr. Dell'Orto. Correct.
    Senator McCain. On what basis was that decision made?
    Mr. Dell'Orto. The President made that determination based 
upon the following analysis. The government of Afghanistan as 
you point out was a signatory to the Geneva Conventions.
    The Taliban is, as that government at the point in time 
when hostilities commenced, operated its, its armed forces if 
you will, in a way that was inconsistent with the way that 
lawful combatants operate. They didn't wear uniforms, didn't 
wear insignia, didn't answer to a responsible chain of command, 
did not conduct themselves in terms of how they targeted people 
consistent with the laws of armed conflict, the laws of war. It 
was consistent across the board. It wasn't some who did and 
some who didn't. A determination was made they did not qualify 
for the protections of Geneva through the Geneva Conventions 
analysis.
    Senator McCain. That analysis is not agreed to by most 
international organizations. Was North Vietnam a signatory to 
the Geneva Conventions? Do you know?
    Mr. Dell'Orto. I don't recall, Senator.
    Senator McCain. I don't believe they were. What happens 
next time we're in a conflict and an American not in uniform on 
some kind of clandestine operation, such as our people were on 
in Afghanistan in civilian clothes, is captured? What kind of 
protections do you think that an American service man or woman 
is going to get?
    Mr. Dell'Orto. I would have to----
    Senator McCain. I think we know, Mr. Dell'Orto, I think we 
know. That's what I worry about. I worry about what happens to 
the next American that is captured in a conflict and if that 
conflict is with a nation that's a nonsignatory to the Geneva 
Conventions, and I think that Congress has to step in here and 
at least give some kind of regularized procedures for the 
treatment of prisoners, which is not clear in the minds of many 
numbers of Congress. We do have that obligation under the 
Constitution of the United States.
    My time has expired. I hoped there would be another round 
because I'd be interested in the views of some of our other 
witnesses here. Maybe Admiral McPherson, just off the top of 
your head, what do you have to say about what I've had to say? 
Go ahead.
    Admiral McPherson. The bottom line whether they're 
recognized as falling within the Geneva Conventions is you must 
treat them humanely. Our President has said----
    Senator McCain. What is the definition of humanely? Is it 
in the eye of the beholder? If you had a North Vietnamese 
interrogator right here today, he'd tell you that we were 
treated very humanely in the North Vietnamese prison camps.
    Admiral McPherson. We have a definition of humane.
    Senator McCain. So did they.
    Admiral McPherson. I understand that, sir. But for us, that 
definition is in concrete. That's what we apply to our 
prisoners in Guantanamo. We treat them humanely.
    Senator McCain. We do.
    Admiral McPherson. Yes, sir.
    Senator McCain. How about use of dogs, is that humane?
    Admiral McPherson. There are differences of opinion, as 
Senator Graham----
    Senator McCain. Not according to the Geneva Conventions, 
there's not differences of opinion.
    Admiral McPherson. There are differences of opinion with 
regard to stress factors for purposes of interrogation. There 
will always be those differences of opinion.
    Senator McCain. Who judges that, what the stress factors 
are, Admiral? The person there that's doing the interrogating?
    Admiral McPherson. Well, I think the chain of command 
judges that, sir.
    Senator McCain. How do they know what is going on? If there 
is a dog there, how do they know that the dog is sitting over 
in the corner, or behaving as we saw in the pictures of Abu 
Ghraib?
    Admiral McPherson. Abu Ghraib was a breakdown in the chain 
of command, Senator.
    Senator McCain. It certainly was. It certainly was, 
Admiral. That's maybe the first statement that you and I have 
agreed with in our exchange here. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman. In your judgment, 
are the following practices humane? A detainee subjected to 
wear a leash, to do dog tricks, to wear women's lingerie, to 
appear naked in front of a woman interrogator, are those humane 
techniques?
    Admiral McPherson. I don't know whether they're humane or 
not. When I heard that those were occurring, the first thing 
that came to my mind is they were awfully juvenile, they were 
almost like fraternity tricks.
    Senator Levin. No, the question is, are they authorized 
under the manual?
    Admiral McPherson. Under the field manual?
    Senator Levin. Yes.
    Admiral McPherson. I don't know if they are or not, sir. I 
would have to look.
    Senator Levin. Okay.
    Admiral McPherson. But again, differences----
    Senator Levin. I've asked you whether in your judgment 
those were humane tactics, and you said you said humane is in 
concrete. The definition is in concrete.
    Admiral McPherson. I don't think that's inhumane treatment. 
No sir, I don't.
    Senator Levin. All right, thank you. General Romig, would 
you consider those tactics to be consistent with Geneva?
    General Romig. Sir, they are not consistent with the Geneva 
Conventions. But as I understand----
    Senator Levin. They are?
    General Romig. Are not. Are not consistent with Geneva 
Conventions. But we are talking about Guantanamo where the 
Geneva Conventions did not apply. But in Iraq they would be 
violations of the Geneva Conventions.
    Senator Levin. All right. In your judgment would they be 
violations therefore of the Army field manual?
    General Romig. Sir, the Army field manual is merely 
guidance. It's not a regulatory manual and there is a lot of 
flexibility in that field manual, as you well know, sir. So, 
they're certainly not within the spirit of field manual but 
what they are violations of, or could be violations of, is the 
UCMJ.
    Senator Levin. Do you believe that those techniques are 
consistent with the field manual? Thirty four----
    General Romig. Fifty two, yes, sir. Consistent with, I 
think I would have to know a little bit more about it. At first 
blush, I would say no, but I think I would have to know a 
little bit more about the interrogation plan and what the 
intent was and how it was being administered and all of that.
    Senator Levin. All right. So you're saying that your first 
reaction would be no, but you'd like to know more details?
    General Romig. Yes, sir.
    Senator Levin. Do you know the way in which those were used 
at Guantanamo?
    General Romig. Sir, I do not. The----
    Senator Levin. That's fair enough.
    General Romig. The field manual, if I may just add, is 
directed towards the Geneva Conventions.
    Senator Levin. I understand that, and that's why I'm asking 
you whether or not those techniques could be consistent with 
Geneva. Your first answer it doesn't look to you like they are, 
but you'd like to know more?
    General Romig. Absolutely. Yes, sir.
    Senator Levin. Let me try General Rives. In your opinion, 
are those techniques consistent with Geneva? Would we like to 
see our POWs treated that way?
    General Rives. No, Senator. We would not.
    Senator Levin. Okay. Is Geneva supposed to apply to our 
POWs?
    General Rives. It does, Senator.
    Senator Levin. So I'm not asking you about Guantanamo yet. 
I will get to that in a moment. I'm asking about the field 
manual, which is supposed to be consistent with Geneva.
    So we don't want to see our POWs treated that way. General 
Rives, do you believe those techniques are consistent with 
Geneva?
    General Rives. I personally do not, Senator. The law 
provides outer limits of what is acceptable. Policies typically 
are well within those outer limits. We train people both on 
what law permits but especially for the junior people who will 
enforcing these, we try to give them effective training on what 
is admissible under the law. Under the normal Geneva categories 
people are well aware of what the standards are.
    Senator Levin. In your personal judgment those specific 
practices are not consistent with Geneva?
    General Rives. That's correct, Senator.
    Senator Levin. Yesterday, I just want to let you all know, 
we were told at our full committee hearing that those practices 
are being utilized to implement U.S. Army field manual 34-52, 
which is consistent with Geneva. In your judgment, General 
Rives, that could not be the case, because they are not 
consistent with Geneva.
    I just want to let you know what we heard yesterday, folks, 
because what we heard yesterday to me was pretty shocking. 
Putting aside the specifics on a case or two, what we were told 
yesterday was that in the judgment of the witnesses, that there 
are two parts of the field manual 34-52, one called fear down 
and the other called ego--one called fear up and the other one 
called ego down. That those practices were implementing those 
two general categories in a field manual.
    That's what I think is so dangerous to our troops. Once you 
can say that those specific practices which we heard about, 
really for the first time, at Guantanamo are ways of 
implementing our field manual since, our field manual must be 
consistent with Geneva, our troops are in danger. That's a 
threat. It's not just to our values, although that's important. 
It's to our troops. I would just hope that particularly our 
JAGs, whom we rely on so heavily, would really take a look at 
that testimony yesterday. I would even ask that you give us 
your opinion on it.
    Now let me ask our JAGs who participated in the working 
group, and I understand that Generals Romig, Sandkuhler, and 
Rives were in that working group. I believe you were asked by 
Senator Graham, relative to your opinion at the time relative 
to the memo which was--the Church report, and here I'm talking 
about the March 13, 2003, memo.
    The Church report states the following: that that memo, 
which we are awaiting a copy of, states that the substance of 
that memo was virtually identical to the Office of Legal 
Counsel's August 1, 2002, so-called ``torture memo,'' which was 
later disavowed by the administration. So you have the March 
13, 2003, memo from you to Haynes, according to the Church 
report, being based, or virtually identical on that earlier 
August 1 memo.
    My question would be to the three JAGs who are present at 
the working group. I want to read to you from the August 2002 
memo, first of all, and ask you whether or not you believe that 
what I'm going to read to you is consistent with either our own 
values or what standards we were supposed to be following: 
Physical pain amounting to torture was equivalent in intensity 
to the pain accompanying serious physical injury, such as organ 
failure, impairment of bodily function or even death.
    Now, let me just ask the three JAGs, was that language 
discussed in the working group? Maybe General Romig, do you 
remember that?
    General Romig. Sir, I am not positive, but I think that 
language, it was a whole spectrum of things that were 
discussed. That language may have been discussed. We wrote 
memos back that have not been declassified yet laying out in 
very strong terms our opinion on some of these things.
    Senator Levin. Right. I'm going to get to that in a moment, 
but for the time being, do you believe that that description of 
what must be inflicted in order for the torture to be the 
characterization, do you believe that is an acceptable 
definition, in your judgment?
    General Romig. No, sir. I do not.
    General Sandkuhler. I agree with General Romig.
    Admiral McPherson. I don't agree.
    Senator Levin. General Rives?
    General Rives. I also agree with General Romig.
    Senator Levin. You agree with General Romig.
    Now going to the working group, I'm a lawyer; and I can't 
tell you how much we rely on all of you to give us both a 
system that's effective, and efficient, and that's workable, 
achieves its goal obtaining of information and treating people 
humanely, but also doing it in a way which is not only 
consistent with our values but will protect our troops.
    If the same techniques are used against us so that we have 
standing, to not only object, but to act against anybody who 
treats our troops with these kind of techniques, that's the 
issue here. Our troops are looking at us. They're looking at us 
to see whether or not we are going to adopt a standard which 
they, if they are captured, would find acceptable or whether 
they would expect us as a nation to come in to their defense 
and to take action to extricate them, from capture.
    Now the Church report. I want to go back to the Church 
report. The Church report said the working group expressed a 
great deal of disagreement with the legal analysis contained in 
the March 14, 2003, memo. I understand that there were some 
things you agreed with, and that were modified, and some you 
continued to disagree with that remained. First, General Romig, 
where did you continue to disagree? What specific techniques 
were left that you disagreed with?
    General Romig. Sir, I think going into specific techniques 
are still classified. I will say this, though, I never did see 
the final report because shortly after that, the Secretary of 
Defense published another memo that was much more constricted 
than the scope of things we were looking at.
    Senator Levin. More constricted than the March 13, 2003, 
report?
    General Romig. I believe so. Yes, sir.
    Senator Levin. You're referring to an April 2003 policy 
report?
    Mr. Dell'Orto. Senator, can I provide some context for 
this?
    Senator Levin. If you don't mind, just to make sure I 
understand first what the generals say.
    General Romig. Sir, I don't remember the exact date of the 
memo.
    Senator Levin. All right. Okay. Now, Mr. Dell'Orto, we 
know--would you supply to us on a classified basis the memos 
that you wrote which disagreed with the conclusions of the 
working group.
    Mr. Dell'Orto. Senator, the committee has those memos.
    Senator Levin. We have the memos where the members of the 
working group expressed disagreement specifically with the 
outcome of the working group?
    Mr. Dell'Orto. You have memos from each of the then-sitting 
judge advocates general, and the staff judge advocates of the 
commandant, expressing their views on a draft of the working 
group report that was dated approximately February 6, 2003.
    Senator Levin. All right. So that's what the Chairman here 
asked that we be furnished in a declassified way, is that 
correct?
    Mr. Dell'Orto. Yes, Senator.
    Senator Levin. Mr. Dell'Orto, that's where you said that 
will happen?
    Mr. Dell'Orto. We expect that it will. But as I pointed out 
to Senator Graham, and I don't know that you were here, sir, we 
continue to consider the arguments that were in there quite 
candid and the types of arguments that we don't necessarily 
need to have out in the public domain.
    Senator Levin. All right.
    Mr. Dell'Orto. Because they are deliberative.
    Senator Levin. Now on the two documents that I've been 
pressing for; my time is up, so I'll end here. I don't believe 
these are on the list the chairman referred to. The March 13, 
2003, memo from the Assistant Attorney General John Yoo to 
Haynes. Are we going to get that document, classified or 
otherwise?
    Mr. Dell'Orto. Sir, as I indicated earlier, that remains 
under review at this point in time.
    Senator Levin. Well, how long is that going to remain under 
review? I don't know how long I've been asking for this 
document.
    Mr. Dell'Orto. You'll probably hear something from me early 
next week.
    Senator Levin. Okay. I would hope, Mr. Chairman, that if we 
can't get a document which was in effect for at least a year, 
minimum----
    Mr. Dell'Orto. Less than a year. In effect from March 2003 
until December 2003 for the purposes of reliance.
    Senator Levin. All right, and then not formally rescinded 
until this year, is that correct?
    Mr. Dell'Orto. That's correct, sir.
    Senator Levin. If we can't get that document, I don't know 
what it is that the Senate or the U.S. Congress can get. I 
mean, this is directly relevant to our inquiry. This isn't 
working documents, this isn't opinions of lawyers. I understand 
all the sensitivities there. This is a document which set forth 
techniques which were allowed, is that correct?
    Mr. Dell'Orto. Sir, it was a legal opinion that set forth 
broad legal analysis, not specific techniques.
    Senator Levin. This was binding, is that correct?
    Mr. Dell'Orto. Yes, sir.
    Senator Levin. Okay. So we had a binding legal opinion that 
was operative for 6 months, not rescinded until 2 years or so 
later. Mr. Chairman, and I'm going to reiterate this, I would 
hope every member of the U.S. Senate, I don't care what their 
position is on various issues which we have to struggle with, 
on this issue, on access to that type of document, it seems to 
me it must be absolute. It must be something Senators of 
varying opinions would insist upon. I would add to that the 
document, the other document which I made reference to which is 
the August, the second Bybee memo, you know the memo I refer to 
here.
    Mr. Dell'Orto. Sir, not specifically.
    Senator Levin. Okay, I'll be very specific here. There was 
a so-called second Bybee memo, which came out around the time 
of the August 1, 2002, memo, it's called the second Bybee memo. 
It's in my letter to you. So if you're going to give me an 
answer on the other one in the next week, and I would say give 
it to this committee, because I think there are a lot of other 
members of the committee, and I hope the chairman, who feel 
just as strongly as I do. I won't speak for Senator Graham, 
he's here. But Senator Warner and his staff have attempted to 
get these documents orally. I know that much. So can we get the 
answer on both memos next week, Mr. Dell'Orto?
    [The information referred to follows:]

    I have not seen a ``second'' memorandum signed by Mr. Bybee and 
dated in the early August 2002 time period. I respectfully suggest that 
the request for such a memorandum be made to the Department of Justice.

    Mr. Dell'Orto. I'll do my best.
    Senator Levin. Thank you. Thank you, Mr. Chairman.
    Senator Graham. I echo what you said, Senator Levin. I find 
myself in the same camp and would like the information.
    Senator McCain has a few follow-up questions. I apologize 
for keeping you here for 2 hours. It's just been a very 
difficult way to conduct a hearing. But until he gets back, we 
have looked backward, we talked about friction points. We 
talked about input from judge advocates. I think it would be 
good for the Nation to know what that input was. I understand 
your concerns about dialogue and disclosing dialogue, but the 
bottom line is things were changed eventually.
    I would like to ask each judge advocate now, in the current 
situation, do you feel better about our legal attitudes and 
responses to interrogation techniques, and the structures at 
Guantanamo Bay? Have we improved? How do you feel today?
    General Romig. Sir, you're talking about limiting it 
exclusively to Guantanamo Bay? I think----
    Senator Graham. Overall.
    General Romig. I think it's much better. I think there is 
more focus on it. I think there has been reviews at all levels. 
We have revised training. There has been much reference to 34-
52, the field manual, that's being revised and will be out 
fairly soon. There have been a number of things done to bring 
the focus back where it should have been, and I think we are in 
much better shape.
    Admiral McPherson. I would agree. I feel much better with 
the interrogation techniques and the guidance that's provided, 
and the oversight that is provided.
    Senator Graham. One of your original concerns is that we 
have a body of law in the military and it has, any 
interrogation procedure has to be evaluated in terms of what we 
require of our troops under the UCMJ. You don't want to go down 
one road and put somebody in legal trouble because of another 
legal path. You feel that we have kind of reconciled those 
concepts?
    Admiral McPherson. I think we have. But I harken back to 
the words you spoke earlier, concerning stress, both physical 
and psychological in conjunction with interrogation techniques. 
I can't help but think that one person's stress position is 
another person's inhumane treatment.
    Senator Graham. Right. It's a hard concept, but we have a 
body of law and we have 60 years of it, we have the Army field 
manual, and we have a lot of things to draw upon. As I 
understand it, your concerns were that when you drew upon what 
was in the past, the proposed future route did not reconcile 
itself well with the past. That we were taking a kind of a 
legal detour with no real understanding where it would take us, 
and that was your objection basically, right?
    Admiral McPherson. I think you're right, yes, sir.
    Senator Graham. From the Marines' point of view, are we 
doing better, sir?
    General Sandkuhler. Sir, I think we are doing well overall. 
If you look at the big broad topic of detainee operations on 
the battlefield today, we are much more in tune to make sure we 
have trained all our forces and we do that on a continuous 
basis. We have judge advocates with each battalion that are 
deployed in Iraq to provide the legal services necessary to be 
able to take care of detainee operations. They can go from 
claims to detainee operations to the law of war question in a 
flash, and we have people to do that.
    We continue our training and the emphasis for young judge 
advocates especially is to understand how it all works, and how 
our values are involved with the way we handle and interact 
with prisoners on the battlefield. I feel much more confident 
now across the force, than if you would have asked me when we 
first started this adventure.
    Senator Graham. Well, that shows that we are improving and 
we're adjusting because the war is, on an easy day it's hard, 
because there is so many new things going on here, and the fact 
that we have to adjust, and we look back and say that's not 
quite right; it's not a slam on anyone. It's the sign of a 
great nation. It's not the sign of a weak nation. General 
Rives, how do you feel?
    General Rives. General, we are certainly much more 
sensitive to the issues and that has helped. Beginning with the 
publicity that attended the horrors of Abu Ghraib, we realized 
this is not for closed door meetings, but it is something we 
have to get the right control over. We have continued to 
emphasize this training both to new judge advocates and more 
experienced judge advocates. Every Air Force JAG who deploys 
gets specific training on this just before deploying, as well 
as other broader, continuing training we do.
    One of the current initiatives that has been true since 
December 2004 is the Joint Staff Deputy Director of War On 
Terrorism has created a Detainee Senior Leadership Oversight 
Council, and we participate in those monthly meetings. So that 
helps keep the spotlight on this issue as well.
    Senator Graham. General Hemingway, we are going recess for 
about 5 or 10 minutes. Senator McCain will come back and finish 
his line of questioning. Then we will allow the panel to go and 
you can take a comfort break here.
    When we come back, be prepared to tell us a little bit 
about, without disclosing classified information, the type 
people we have at Guantanamo Bay. There is a reason we want to 
prosecute them. If you could maybe share that with us for a 
minute or two here before I leave?
    General Hemingway. Senator, I think that the charges that 
we have pending currently are an accurate reflection. We have 
people charged with conspiracy to violate the law of war by 
conspiring to kill civilians, by attempting to murder. These 
are unprivileged belligerents who are alleged to have committed 
these acts. I think that gives the public some idea of the kind 
of individual we are facing within the group that we have at 
Guantanamo.
    Senator Graham. That's why I really want to move forward as 
quickly as I can with prosecution to let the public know that 
we are fighting and winning this war, and the type people we 
are dealing with, and let future recruits know what comes your 
way if you get captured. Long prison terms, maybe even death, 
in accordance with the rule of law. With that we'll adjourn and 
reconvene just in a few minutes. Thank you very much. [Recess.]
    I just want to, for the record, thank the panel for coming. 
You can go back to work now. You have been an invaluable asset 
to this committee. I appreciate your service to our country. I 
know most of you personally, and I am very proud of our 
military legal community and I could not be more proud to have 
been a member of the JAG Corps, and currently am. You have 
acquitted yourselves well. Thank you very much, Mr. Dell'Orto. 
Senator Nelson, if it's all okay, we'll go on to the next 
panel.
    Senator Ben Nelson. That's fine with me. I want to thank 
you all. I know there are lots of challenges to try to sort out 
some of the ideas that have been thrown out today. We 
appreciate your effort and we will also appreciate any 
continuing advice and counsel that you might be able to provide 
us.
    Senator Graham. Thank you. We'll have the next panel. Thank 
you. [Recess.]
    Thank you all for being patient. I apologize. The Senate on 
a good day is a hard place to run. We have had five back to 
back votes, and you have been very patient. Our first panel was 
terrific. Thank you all for coming and helping this committee 
with a very difficult series of decisions to make. You are all 
well-known and respected. Senator Nelson, would you like to----
    Senator Ben Nelson. No, Mr. Chairman, I think we would like 
to go right to the panel. Thank you very much. I do want to 
thank the panel, though.
    Senator Graham. Mr. Barr.

 STATEMENT OF HON. WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF 
                       THE UNITED STATES

    Mr. Barr. Thank you, Mr. Chairman. Let me say that I think 
your opening statement was one of the most cogent explanations 
of where we are and I really agree with everything you said. I 
think the administration's policies are justified and lawful 
and that they are fully in accord with the law of war, and I 
think frankly, Senator, the thing that makes it appear messy is 
not because of anything the administration or our military is 
doing. I think the really----
    Senator Graham. Could I interrupt here? I don't mean messy 
as a blame term. It's just a legal situation that's hard to 
deal with, no one is at fault. I think we did a good job 
defining enemy combatant status and military tribunals but the 
courts are now in play. What has made it messy is habeas and is 
the worst way imaginable in my opinion to deal with the legal 
problems that we face. I just wanted to interject that it's not 
because anybody did anything wrong. It's just the nature of the 
legal situation we find ourselves in.
    Mr. Barr. That's right, and you made that clear, Senator. I 
fully agree with that. I think the confusion arises from 
several different sources. One is the tendency for people at 
large, and for judges, to confuse war with, law enforcement 
activities which are totally different from a constitutional 
standpoint. Another is, I think we would all recognize that 
over the past 30 years there has been expansion of judicial 
power. Judges are more and more willing to try to sort of 
second-guess and make decisions that heretofore they have 
relied on accountable political officials to make. That's now 
carrying over into the war area, unfortunately. I think there's 
also been, since Watergate, a depreciation of the importance of 
executive power. Executive power to our framers really meant 
something, they viewed it as a distinctive kind of power to 
deal with exigent circumstances that really weren't amenable to 
setting all the rules out in advance, which is what the 
legislature does, or through the judicial method, which is to 
try to apply absolute objective standards and then weigh the 
evidence to see whether something is in or out.
    Now, in our war, as opposed to our law enforcement, there 
are two important attributes that I think we have to recognize. 
One is it that it is subject to the laws of war, and the other 
is that fundamental decisions that have to be made in war are 
executive in nature. The framers did not give the commander in 
chief authority to the President because they played enie-
meanie-miney-mo or flipped a coin; they felt that the 
President, that the executive, had to make the kinds of 
decisions that came up, who was to be approached as the enemy, 
what force was to be--yes.
    Senator McCain. The Constitution says very clearly, ``to 
declare war, grant letters of marque and reprisal and make 
rules concerning captures on land and water.'' So I don't 
understand your logic there, that it's all up to the executive.
    Mr. Barr. No, I'm saying that the executive is the 
Commander in Chief.
    Senator McCain. The executive is Commander in Chief, but 
the Constitution says Congress shall make rules concerning 
captures on land and water.
    Mr. Barr. Okay, well, let's discuss that provision, 
Senator.
    Senator McCain. Let's discuss it. Yes.
    Mr. Barr. In the 18th century and at the time of the 
framing of the Constitution there was a concept that when a 
state of war existed, all the citizens of the two communities 
could engage in hostilities against each other, willy-nilly, 
and the concern was under international law and the evolution 
of that law was the countries should give specific license to 
who was going to wage combat on behalf of a society through 
regular means. That's why reprisals, letters of marque and 
making the rules governing captures were established. It was 
who is going to fight on behalf of the Republic. That's what 
that provision deals with. But you don't find many statutes to 
try to anticipate in advance and set forth in codification how 
we are going to fight a particular war. That's the point I'm 
making. It's very hard to make these rules in a statutory 
straitjacket, that sort of says how we're going to fight or 
define with precision every category.
    Turning to the situation in Guantanamo, these are people 
being held as detainees. There is no due process requirement as 
far as foreign persons are concerned to have adversary hearings 
to determine whether someone is or is not a detainee. However, 
in this case, because of the nature of this war, we have 
provided these individuals with more process than any set of 
prisoners in wartime has ever received, through annual reviews, 
through multilevel battlefield and theater reviews, and now 
through CSRT, which is a hearing procedure.
    Senator McCain. Not one is going to be tried.
    Mr. Barr. Excuse me?
    Senator McCain. Not one is going to trial.
    Mr. Barr. I'm sympathetic with the notion we should start 
trying these people. But the fact of the matter is from a legal 
standpoint, we did catch Hess in 1939, I believe; we tried him 
in 1946. If people are being held as detainees, there is no 
immediate need to try them for war crimes if they are detained 
anyway as detainees. Now, I think it's largely a prudential 
judgment as to when we bring charges against these people and 
I'm sympathetic to the notion we that should proceed with that.
    I'd like to get a little bit into this issue. I'd like to 
open up a can of worms and get into this issue of 
interrogation. Because we frequently hear a lot of people 
criticize the administration, but it seems to me that when an 
enemy is operating as these people are, they are committing two 
horrific crimes against humanity.
    One is they are disguising themselves as civilians and 
hiding out among civilians. That in itself is an atrocity, 
because it increases the vulnerability of civilians, and 
because you have to sort out who is the enemy and who isn't. 
Second, they are carrying out deliberate attacks against 
civilians. So these are two grave crimes.
    When you are fighting that kind of an enemy, as opposed to 
enemy that is fighting by the laws of war, it seems to me 
critical and a moral imperative that you take every step you 
can to figure out who is the enemy and who isn't the enemy. I 
don't know of any organization like this that has ever been 
counteracted without that coercive interrogation, by capturing 
an individual and then figuring out who else is involved and 
who they're reporting to and who else is in the cell. This is 
really the main intelligence means you have of defeating an 
organization like this.
    Now, I can understand if someone wants to say there is no 
right to coercive interrogation. I disagree with that as a 
moral matter, but I have not heard the critics saying that. If 
you can use coercion in interrogation, the question is where 
you draw the line. This administration says they're not going 
to engage in torture, but they will engage in coercive 
interrogation, and I'm not sure if it would be helpful for 
Congress to try to figure out what exactly constitutes torture 
and what's coercion under the circumstances.
    Finally, let me just say I'm not sure the definition of 
enemy combatant is really the problem here. Like any rule that 
deals with a complicated area, it has to be necessarily framed 
in general terms and applied to meet the circumstances. You 
said, Mr. Chairman, at the beginning, war is fluid; the enemy 
adapts; we have to adapt. Now we are dealing with an enemy that 
is consciously trying to avoid these categories and organize 
themselves in a way, not only to avoid detection, but so they 
have cover stories for whatever they do. So, there are some 
areas like fraud, for example, where we prohibit fraud. Fraud 
is a general term. It's very hard to codify that and think of 
all the instances that could be considered fraud, and I think 
the definition of combatant is that kind of definition and it 
has two components. One, you are either part of the armed force 
of the enemy or you are providing direct support to the 
military operations, or hostilities and normally, when you are 
fighting an army that's a regular army, that's easy to discern. 
But when you are fighting a guerrilla army it is sometimes 
hard. I'm worried that if we try to codify, and think of all 
the different instances where someone could be providing that 
kind of support, we'll leave things out, or we'll create 
mischief.
    So those are some opening thoughts, Mr. Chairman, I'd be 
glad to answer any questions you have.
    [The prepared statement of Attorney General Barr follows:]

                 Prepared Statement by William P. Barr

    Mr. Chairman, and members of the subcommittee, I am pleased to 
provide my views on the important issues surrounding our response as a 
Nation to attacks against our homeland and the continuing national 
security threat posed by al Qaeda. By way of background, I have 
previously served as Assistant Attorney General for the Office of Legal 
Counsel, the Deputy Attorney General, and the Attorney General of the 
United States. I have also served on the White House staff and at the 
Central Intelligence Agency (CIA). The views I express today are my 
own.
    My remarks today focus on the detention of foreign enemy combatants 
captured during our military campaign against the Taliban and al Qaeda 
and, specifically, on the adequacy of the procedures governing their 
continued detention as enemy combatants and, in the cases of some 
detainees, their prosecution before military commissions for violations 
of the laws of war.
    In my view, the criticisms of the administration's detention 
policies are without substance. The administration's detention measures 
are squarely in accord with the time-honored principles of the law of 
war and supported by over 230 years of unbroken legal and historical 
precedent.
    It is important to understand that the United States is taking 
three different levels of action with respect to the detainees. These 
are frequently confused in the popular media.
    First, as a threshold matter, the United States is detaining all 
these individuals simply by virtue of their status as enemy combatants. 
It is well established under the laws of war that enemy forces are 
subject to capture and detention, not as a form of punishment, but to 
incapacitate the enemy by eliminating their forces from the 
battlefield. Captured enemy forces are normally detained for as long as 
the enemy continues the fight.
    The determination that a particular foreign person seized on the 
battlefield is an enemy combatant has always been recognized as a 
matter committed to the sound judgment of the Commander in Chief and 
his military forces. There has never been a requirement that our 
military engage in evidentiary proceedings to establish that each 
individual captured is, in fact, an enemy combatant. Nevertheless, in 
the case of the detainees at Guantanamo, the Deputy Secretary of 
Defense and the Secretary of the Navy have established Combatant Status 
Review Tribunals (CSRTs) to permit each detainee a fact-based review of 
whether they are properly classified as enemy combatants and an 
opportunity to contest such designation.
    As to the detention of enemy combatants, World War II provides a 
dramatic example. During that war, we held hundreds of thousands of 
German and Italian prisoners in detention camps within the United 
States. These foreign prisoners were not charged with anything; they 
were not entitled to lawyers; they were not given access to U.S. 
courts; and the American military was not required to engage in 
evidentiary proceedings to establish that each was a combatant. They 
were held until victory was achieved, at which time they were 
repatriated. The detainees at Guantanamo are being held under the same 
principles, except, unlike the Germans and Italians, they are actually 
being afforded an opportunity to contest their designation as enemy 
combatants.
    Second, once hostile forces are captured, the subsidiary question 
arises whether they belonged to an Armed Force covered by the 
protections of the Geneva Conventions and hence entitled to prisoner of 
war (POW) status? If the answer is yes, then the captives are held as 
prisoners of war entitled to be treated in accord with the various 
``privileges'' of the Convention. If the answer is no, then the 
captives are held under humane conditions according to the common law 
of war, though not covered by the various requirements of the 
Convention. The threshold determination in deciding whether the 
Convention applies is a ``group'' decision, not an individualized 
decision. The question is whether the military formation to which the 
detainee belonged was covered by the Convention. This requires that the 
military force be that of a signatory power and that it also comply 
with the basic requirements of Article 4 of the Treaty, e.g., the 
militia must wear distinguishing uniforms, retain a military command 
structure, and so forth. Here, the President determined that neither al 
Qaeda nor Taliban forces qualified under the Treaty, and he was 
obviously correct in that decision.
    The third kind of action we are taking goes beyond simply holding 
an individual as an enemy combatant. It applies so far only to a subset 
of the detainees and is punitive in nature. In some cases, we are 
taking the further step of charging an individual with violations of 
the laws of war. This involves individualized findings of guilt. 
Throughout our history we have used military tribunals to try enemy 
forces accused of engaging in war crimes. These tribunals are 
sanctioned by the laws of war. Shortly after the attacks of September 
11, the President established military commissions to address war 
crimes committed by members of al Qaeda and their Taliban supporters.
    Again, our experience in World War II provides a useful analog. 
While the vast majority of Axis prisoners were simply held as enemy 
combatants, military commissions were convened at various times during 
the war, and in its immediate aftermath, to try particular Axis 
prisoners for war crimes. One notorious example was the massacre of 
American troops at Malmedy during the Battle of the Bulge. The German 
troops responsible for these violations were tried before military 
courts.
    I would like to address each of these matters, but before doing so 
I would like to discuss briefly the legal and Constitutional framework 
that governs our activities.

                    I. THE CONSTITUTIONAL FRAMEWORK

    Most of the carping and criticism I have heard over the 
administration's policies are based on a completely false premise--that 
our operations against al Qaeda are in the nature of law enforcement 
activities and therefore that, when our forces seize someone, the 
government is subject to all the constraints, process-requirements and 
rules that apply in the criminal justice context. This is a dangerous 
misconception. This is not ``Hawaii Five-0.'' We are not ``booking 
them, Danno.'' This is a war--not in a figurative, but in a very 
literal, real sense. We are in an armed conflict with foreign enemy 
forces who are trying to kill us.
    There is a clear and critical distinction between the role the 
government plays when it is enforcing our domestic laws against members 
of our body politic, and the role it plays when it is defending the 
body politic from armed assault by an external enemy. This distinction 
is critically important because the scope of the government's power and 
the restrictions we place on the government differ fundamentally 
depending on which function the government is performing.
    When the government enforces law within the community by seeking to 
discipline an errant member, the Constitution is concerned with 
dividing, diluting, and weakening the government, which it does both by 
hemming it in with restrictions and by investing those against whom it 
is acting with ``rights''--creating, in a sense, a level playing field 
as between the government and the individuals it is seeking to 
discipline. But when the government is defending the community against 
armed attacks by a foreign enemy, the Constitution seeks to unify and 
strengthen the power of the government. It does not grant rights to our 
foreign enemies. It is concerned with one thing--preserving the freedom 
of our political community by destroying the external threat.
    To gain a better appreciation of this dichotomy, it is useful to 
``go back to basics.'' What is a Constitution? It is the fundamental 
agreement by which a certain people bind themselves together as a 
separate and distinct political community. It sets forth the internal 
rules by which the particular body politic will govern itself. Our 
Constitution was not written to govern the world as a whole. It was 
written for ``the people''--the American people
    There were two chief reasons why the American people decided to 
establish a Federal Government--to ``ensure domestic Tranquillity'' and 
to ``provide for the common defence.'' To achieve the first purpose, 
the Federal Government is given its domestic law enforcement functions; 
to achieve the second purpose, the Federal Government is given its 
warfighting or national defense powers.
    When the government acts in its law enforcement capacity, the 
government's role is disciplinary. It preserves ``domestic 
Tranquillity'' by punishing an errant member of society for 
transgressing the internal rules of the body politic. However, the 
Framers recognized that in the name of maintaining domestic order an 
overzealous government could oppress the very body politic it is meant 
to protect. The government itself could become an oppressor of ``the 
people.''
    Thus our Constitution makes the fundamental decision to sacrifice 
efficiency in the realm of law enforcement by guaranteeing that no 
punishment can be meted out in the absence of virtual certainty of 
individual guilt. Both the original Constitution and the Bill of Rights 
contain a number of specific constraints on the executive's law 
enforcement powers, many of which expressly provide for a judicial role 
as a neutral arbiter or ``check'' on executive power. In this realm, 
the executive's subjective judgments are irrelevant; it must gather and 
present objective evidence of guilt satisfying specific constitutional 
standards at each stage of a criminal proceeding. The underlying 
premise in this realm is that it is better for society to suffer the 
cost of the guilty going free than mistakenly to deprive an innocent 
person of life or liberty.
    The situation is entirely different in armed conflict where the 
entire nation faces an external threat. In armed conflict, the body 
politic is not using its domestic disciplinary powers to sanction an 
errant member, rather it is exercising its national defense powers to 
neutralize the external threat and preserve the very foundation of all 
our civil liberties. Here, the Constitution is not concerned with 
handicapping the government to preserve other values. The Constitution 
does not confer ``rights'' on foreign persons confronted in the course 
of military operations, nor does the judicial branch sit as a ``neutral 
arbiter'' as between our society and our foreign enemies, or a second-
guesser of military decisions. Rather, the Constitution is designed to 
maximize the government's efficiency to achieve victory--even at the 
cost of ``collateral damage'' that would be unacceptable in the 
domestic realm.
    What is this Constitutional framework for fighting a war? In 
framing the Constitution, the Founders did something that was 
unimaginable just a dozen years before the Convention. They created a 
single powerful Chief Executive, vested in that office all ``The 
Executive power,'' and conferred on that official the power as 
``Commander in Chief.'' They did this for two reasons. First, from 
bitter experience in fighting the Revolution, they concluded that, when 
fighting a foreign war, the Nation's military power had to be maximized 
by putting directive authority into a single set of hands. Second, they 
understood that the kinds of decisions involved in war are inherently 
``executive'' in character. Like all the classical philosophers, the 
founders viewed executive power as a distinctive type of power quite 
different from either judicial or legislative power. They understood 
that contingencies arise that are simply not amenable to being handled 
by a set of hard-and-fast, adopted in advanced by a legislature or 
applied after-the-fact by judges.
    The pre-eminent example is military decision making, which calls 
for judgments that cannot be reduced to neat objective tests, but 
rather requires the exercise of prudential judgment. Warfare requires 
that certain decisions be made on an ongoing basis: how, and against 
whom, should military power be applied to achieve the military and 
political objectives of the campaign. The Framers created one office--a 
President, elected by all the people of the country and alone 
accountable to all the people--to make these decisions. If the concept 
of a commander in chief means anything, it must mean that the office 
holds the final and conclusive authority to direct how force is to be 
used.
    It is simply inarguable that, in confronting al Qaeda, the United 
States is fighting a war. Al Qaeda is a highly organized foreign force 
that has openly declared war on the United States and launched a series 
of carefully coordinated attacks, here and abroad, for the purpose of 
imposing its will on our country. These are organized armed attacks to 
achieve political objectives. That is the very essence of war. The fact 
that al Qaeda does not formally control a nation state does not make 
our contest with them any less a war. We have fought foreign political 
factions before. The fact that al Qaeda seeks to operate in secret, 
disguising itself among civilians, and striking out in violation of the 
laws of war, does not change the essential character of their acts. We 
have fought irregular enemies before.
    I think the American people fully understand that this is a real 
war. We can apply a common sense test to see that this is so. Suppose 
that tomorrow we were to determine that we had located Osama bin Laden 
in his hideout. Would the American people think it legitimate for us to 
peremptorily drop a bomb on the location to kill him? Or do you think 
that the American people would think that Osama bin Laden (as he sits 
in his lair) has rights under our Constitution and that we would have 
to give warning and try to capture him alive for trial? Do we really 
think that we could only deal with Osama bin Laden as a criminal 
suspect and could only use lethal force to the extent permitted against 
such suspects? The overwhelming majority of Americans clearly 
understand that, when we locate them, it would be perfectly appropriate 
for us to use peremptory force against Osama bin Laden and his 
associates solely for the purpose of destroying them. That is because 
they understand this is a war.
    I hear a lot of hand-wringing about civil liberties in connection 
with the Guantanamo detainees. I fail to see how our holding of those 
detainees raises legitimate civil liberties issues. It seems to me 
there are two respects in which fighting a war against a foreign enemy 
can be said to raise ``civil liberties'' concerns, and neither apply to 
the Guantanamo detainees. First, even where the government is using 
military power only against foreign persons who have no connection with 
the United States, there is the danger that, the government might 
impose domestic security measures that trench upon the liberties of our 
own people. For example, the government might assert rights of 
censorship, rationing, or broader search powers. The government's claim 
in such cases is not that the people are the ``enemy,'' but that the 
exigencies of war require greater imposition on the people. This is 
allegedly the kind of issue raised by the Patriot Act. But this is not 
what we are discussing today.
    The second type of civil liberty concern arises where the 
government directs its military power against its own people. In many 
of our foreign wars, there have been American citizens who have fought 
with the enemy. In World War II, for example, there were hundreds who 
did so, including some natural born citizens. As the Supreme Court 
recently ruled in the Hamdi case, the government can legitimately use 
military power against citizens who are part of enemy forces and can 
detain them as ``enemy combatants.'' But, in such cases involving our 
own citizens, civil liberties concerns naturally arise. In theory, 
there is a risk that the government might oppress the body politic, and 
bypass law enforcement procedures, simply be using war as a pretext for 
labeling innocent citizens as enemies. Thus, the administration has 
always acknowledged that citizens have the right to habeas corpus and 
that some level of judicial scrutiny is required to ensure that the 
government is not just acting pretextually. Thus, as the Hamdi court 
ruled, some unspecified due process rights may apply when the 
government seeks to hold its own citizens as foreign enemies. None of 
this applies here, however. As far as I am aware, none of the detainees 
at Guantanamo are American citizens.

        II. THE PROPRIETY OF THE ADMINISTRATION'S DETERMINATIONS

    With foregoing basic principles in mind, let us turn to the various 
issues that have been raised--namely: (1) whether the detainees at 
Guantanamo can be held without greater process than they are already 
being afforded; (2) whether these al Qaeda or Taliban forces are 
entitled to the protections of the Geneva Convention; and (3) whether 
some of the detainees may be tried for war crimes before the military 
commissions established by the President.
A. The Detention of the Guantanamo Captives as ``Enemy Combatants''
    As I stated at the outset, and as the Supreme Court just reaffirmed 
in Hamdi, an inherent part of war is capturing and holding enemy forces 
for the duration of hostilities. While Hamdi teaches that American 
citizens cannot be so held without some process, there has never been a 
requirement that our military engage in evidentiary proceedings to 
establish that each foreign person captured is, in fact, an enemy 
combatant. On the contrary, the determination that a particular foreign 
person is an enemy combatant has always been recognized as a matter 
committed to the sound judgment of the commander in chief and his 
military forces.
    Now obviously the military has procedures for reviewing whether 
persons being detained deserve to be held as ``enemy combatants.'' In 
the case of the Guantanamo detainees, their status has been reviewed 
and re-reviewed within the executive branch and the military command 
structure. Nevertheless, the argument is being advanced that foreign 
persons captured by American forces in the course of military 
operations have a due process right under the fifth amendment to an 
evidentiary hearing to fully litigate whether they are, in fact, enemy 
combatants. We have taken and held prisoners in war for over 230 years, 
and the suggestion that, as a legal matter, we owed each foreign 
detainee a trial is just preposterous.
    Now the easy and short answer to this particular criticism about 
the Guantanamo detainees is that the claim has been totally mooted by 
the military's voluntary use of the CSRT process. Under these 
procedures, each detainee is given the opportunity to contest his 
status as an enemy combatant. To my knowledge, we have provided more 
``process'' for these detainees than for any group of wartime prisoners 
in our history. While clearly not required by the Constitution, these 
measures were adopted by the military as a prudential matter. They were 
modeled on those that the Hamdi decision indicated would be sufficient 
for holding an American citizen as an enemy combatant.\1\ Obviously, if 
these procedures are sufficient for American citizens, they are more 
than enough for foreign detainees who have no colorable claim to due 
process rights.
---------------------------------------------------------------------------
    \1\ Hamdi v. Rumsfeld, 124. S.Ct. 2633 (2004).
---------------------------------------------------------------------------
    Indeed, most of the process embodied in the CSRT parallel and even 
surpass the rights guaranteed to American citizens who wish to 
challenge their classification as enemy combatants. The Supreme Court 
has indicated that hearings conducted to determine a detainee's 
prisoner-of-war status, pursuant to the Geneva Convention,\2\ could 
satisfy the core procedural guarantees owed to an American citizen.\3\ 
In certain respects, the protocols established in the CSRTs closely 
resemble a status hearing, as both allow all detainees to attend open 
proceedings, to use an interpreter, to call and question witnesses, and 
to testify or not testify before the panel.\4\ Furthermore, the United 
States has voluntarily given all detainees rights that are not found in 
any prisoner-of-war status hearing, including procedures to ensure the 
independence of panel members and the right to a personal 
representative to help the detainee prepare his case.\5\
---------------------------------------------------------------------------
    \2\ The procedures are created under Army Regulation 190-8. Opening 
Brief for the United States, Odah v. United States, at 31.
    \3\ Hamdi, 124 S.Ct. at 2651.
    \4\ Opening Brief in Odah at 33-34.
    \5\ Id. at 34-35.
---------------------------------------------------------------------------
    Nevertheless, there appear to be courts and critics who continue to 
claim that the Due Process Clause applies and that the CSRT process 
does not go far enough. I believe these assertions are frivolous.
     I am aware of no legal precedent that supports the proposition 
that foreign persons confronted by U.S. troops in military operations 
have fifth amendment rights that they can assert against the American 
troops. On the contrary, there are at least three reasons why the fifth 
amendment has no applicability to such a situation. First, as the 
Supreme Court has consistently held, the fifth amendment does not have 
extra-territorial application to foreign persons outside the United 
States.\6\ As Justice Kennedy has observed, ``[T]he Constitution does 
not create, nor do general principles of law create, any juridical 
relation between our country and some undefined, limitless class of 
non-citizens who are beyond our territory.'' \7\ Moreover, as far as I 
am aware, prior to their capture, none of the detainees had taken any 
voluntary act to place themselves under the protection of our laws; 
their only connection with the United States is that they confronted 
U.S. troops on the battlefield. Finally, the nature of the power being 
used against these individuals is not the domestic law enforcement 
power--we are not seeking to subject these individuals to the 
obligations and sanctions of our domestic laws--rather, we are waging 
war against them as foreign enemies. As I have already explained, this 
is a context in which the concept of due process is inapposite.
---------------------------------------------------------------------------
    \6\ Johnson v. Eisentrager, 339 U.S. 763 (1950); United States v. 
Verdugo-Urquidez, 494 U.S. 259 (1990) (explaining that ``we have 
rejected the claim that aliens are entitled to fifth amendment rights 
outside the sovereign territory of the United States''); Zadvydas v. 
Davis, 533 U.S. 678 (2001) (citing Eisentrager and Verdugo for the 
proposition that ``[i]t is well established that certain constitutional 
protections available to persons inside the United States are 
unavailable to aliens outside of our geographic borders'').
    \7\ Verdugo-Urquidez, 494 U.S. at 275 (Kennedy, J., concurring).
---------------------------------------------------------------------------
    In society today, we see a tendency to impose the judicial model on 
virtually every field of decisionmaking. The notion is that the 
propriety of any decision can be judged by determining whether it 
satisfies some objective standard of proof and that such a judgment 
must be made by a ``neutral'' arbiter based on an adversarial 
evidentiary hearing. What we are seeing today is an extreme 
manifestation of this--an effort to take the judicial rules and 
standard applicable in the domestic law enforcement context and extend 
them to the fighting of wars. In my view, nothing could be more 
farcical, or more dangerous.
    Let us make no mistake about it. Any extension of due process 
rights to foreign adversaries in war would effectuate probably the most 
profound shift in power in our Constitutional history. Any decision 
that affected the life or liberty of the foreign persons being 
confronted by our Armed Forces would be subject to judicial review. 
Either before or after military actions are taken, judges, purporting 
to balance all the competing interests, would pronounce whether the 
actions passed legal muster. This would make the judges the ultimate 
decision makers. For the first time in our history, judges would be in 
charge of superintending the fighting of wars.
    These are not the ``Men in Black'' we should want to see in charge 
of fighting our wars. A moment's reflection should tell us that courts 
and judges lack both the institutional capacity and the political 
accountability for making these types of decisions. As I observed 
above, at the heart of a commander's military decisions is the judgment 
of what constitutes a threat or potential threat and what level of 
coercive force should be employed to deal with these dangers. These 
decisions cannot be reduced to tidy evidentiary standards, some 
predicate threshold, that must be satisfied as a condition of the 
President ordering the use of military force against a particular 
individual. What would that standard be? Reasonable suspicion, probable 
cause, substantial evidence, preponderance of the evidence, or beyond a 
reasonable doubt? Does anyone really believe that the Constitution 
prohibits the President from using coercive military force against a 
foreign person--detaining him--unless he can satisfy a particular 
objective standard of evidentiary proof?
    Let me posit a battlefield scenario. American troops are pinned 
down by sniper fire from a village. As the troops advance, they see two 
men running from a building from which the troops believe they had 
received sniper fire. The troops believe they are probably a sniper 
team. Is it really being suggested that the Constitution vests these 
men with due process rights as against the American soldiers? When do 
these rights arise? If the troops shoot and kill them--i.e., deprive 
them of life--could it be a violation of due process? Suppose they are 
wounded and it turns out they were not enemy forces. Does this give 
rise to Bivens Constitutional tort actions for violation of due 
process? Alternatively, suppose the fleeing men are captured and held 
as enemy combatants. Does the due process clause really mean that they 
have to be released unless the military can prove they were enemy 
combatants? Does the Due Process Clause mean that the American military 
must divert its energies and resources from fighting the war and 
dedicate them to investigating the claims of innocence of these two 
men?
    This illustrates why military decisions are not susceptible to 
judicial administration and supervision. There are simply no 
judicially-manageable standards to either govern or evaluate military 
operational judgments. Such decisions inevitably involve the weighing 
of risks. One can easily imagine situations in which there is an 
appreciable risk that someone is an enemy combatant, but significant 
uncertainty and not a preponderance of evidence. Nevertheless, the 
circumstances may be such that the President makes a judgment that 
prudence dictates treating such a person as hostile in order to avoid 
an unacceptable risk to our military operations. By their nature, these 
military judgments must rest upon a broad range of information, 
opinion, prediction, and even surmise. The President's assessment may 
include reports from his military and diplomatic advisors, field 
commanders, intelligence sources, or sometimes just the opinion of 
frontline troops. He must decide what weight to give each of these 
sources. He must evaluate risks in light of the present state of the 
conflict and the overall military and political objectives of the 
campaign.
    Furthermore, extension of due process concepts as a basis for 
judicial supervision of our military operations would be fundamentally 
incompatible with the power to wage war itself, so altering and 
degrading that capacity as to negate the Constitution's grant of that 
power to the President.
    First, the imposition of such procedures would radically alter the 
character and mission of our combat troops. To the extent that the 
decisions to detain persons as enemy combatants are based in part on 
the circumstances of the initial encounter on the battlefield, our 
frontline troops will have to concern themselves with developing and 
preserving evidence as to each individual they capture, at the same 
time as they confront enemy forces in the field. They would be diverted 
from their primary mission--the rapid destruction of the enemy by all 
means at their disposal--to taking notes on the conduct of particular 
individuals in the field of battle. Like policeman, they would also 
face the prospect of removal from the battlefield to give evidence at 
post-hoc proceedings.
    Nor would the harm stop there. Under this due process theory, the 
military would have to take on the further burden of detailed 
investigation of detainees' factual claims once they are taken to the 
rear. Again, this would radically change the nature of the military 
enterprise. To establish the capacity to conduct individualized 
investigations and adversarial hearings as to every detained combatant 
would make the conduct of war--especially irregular warfare--vastly 
more cumbersome and expensive. For every platoon of combat troops, the 
United States would have to field three platoons of lawyers, 
investigators, and paralegals. Such a result would inject legal 
uncertainty into our military operations, divert resources from winning 
the war into demonstrating the individual ``fault'' of persons 
confronted in the field of battle, and thereby uniquely disadvantage 
our military vis-a-vis every other fighting force in the world.
    Second, the introduction of an ultimate decisionmaker outside of 
the normal chain of command, or altogether outside the executive 
branch, would disrupt the unitary chain of command and undermine the 
confidence of frontline troops in their superior officers. The 
impartial tribunals could literally overrule command decisions 
regarding battlefield tactics and set free POWs whom American soldiers 
have risked or given their lives to capture. The effect of such a 
prospect on military discipline and morale is impossible to predict.
    In sum, the claim that the Guantanamo detainees are not getting 
adequate process is totally without substance. As foreign persons 
confronted by U.S troops on the battlefield, they have no legal right 
to Constitutional due process. They are being properly held under the 
laws of war. They have, in fact, received the same process that 
American citizens would get under the circumstances.
    I have heard some additional suggestion that it would be useful at 
this juncture for Congress to adopt a precise definition of the 
category of persons who can be detained as ``enemy combatants.'' I 
disagree. The existing definition that is now part of the common law of 
war is fully adequate and sensible. Any attempt by Congress to codify a 
more specific definition is unnecessary and would end up unduly 
hamstringing our military forces. Moreover, trying to frame a more 
specific statutory definition would be incompatible with the law of war 
as an evolving body of ``common law''--one that develops with 
experience and can adapt to meet new and changing circumstances. 
Especially given the state of affairs we face today and the type of 
enemy we are confronting, I think trying to lock in any particular 
verbal formulation would be extremely unwise.
    Certainly no legislative action is necessary to ensure that the 
President has adequate detention authority. The President's power does 
not come from Congress in the first place; it comes directly from 
Article II of the Constitution. After all, since the country's 
inception, our military forces have engaged in at least 10 major wars 
and literally hundreds of military expeditions in which we have faced a 
broad range of opposing forces, ranging from regular armies to 
irregular forces, including Barbary pirates, hostile Indians, Mexican 
guerillas, Chinese Boxers, Villa's banditti, Philippine 
Insurrectionists, and the Viet Cong, just to name a few.
    No one has had the temerity to suggest that our forces in all these 
campaigns lacked authority to capture the enemy, or that they needed 
some carefully-crafted statute to do so. Nor, as far as I know, have we 
ever found it necessary or prudent to define in advance with any 
statutory detail the class of persons who could be detained in 
connection with our military operations. On the contrary, when Congress 
has authorized force--either in declarations of war or otherwise--it 
has done so in the most general terms in way that reinforces and 
augments the President's inherent war fighting powers, not in a way 
that seeks to curtail them.
    In dealing with foreign persons, the proper scope of military 
detention authority is governed by the body of customary international 
law commonly referred to as ``the law of war.'' This body of law is in 
the nature of a ``common law'' that reflects the usages of civilized 
nations. It is this ``law of war'' that has traditionally defined the 
class of persons that may be detained and held in connection with 
military operations. That traditional definition is perfectly 
serviceable and has proven neither too sweeping, nor too crabbed. There 
is simply no good reason to impose on our military any greater 
constraint than already exist under those time-honored law-of-war 
principles. There are obvious reasons why imposing greater limits on 
our Armed Forces would be foolhardy.
    Under the traditional law of war, the core principle is that 
military authorities may capture and hold persons who are part of the 
enemy's forces, as well as those who directly support hostilities in 
aid of enemy forces. By necessity, that definition is cast in general 
terms. Even in classic warfare between regular armies, gray zones can 
arise at the margin in determining who is directly supporting 
hostilities in aid of enemy forces to a degree to make them subject to 
detention. Over time, those subject to detention has been found to 
include not only the actual armed fighters, but also ``civil persons . 
. . in immediate connection with an army, such as clerks, 
telegraphists, aeronauts, teamsters, laborers, messengers, guides, 
scouts, and men employed on transport and military railways. . . .'' W. 
Winthrop, Military Law and Precedents 789 (2nd ed. 1920) (emphasis 
added).
    As with any effort to classify an area as complex as war, 
definitions must retain some generality. The fact that difficult 
judgment calls will inevitably arise on the margin does not mean that 
any more precise definition makes sense or that the general definition 
is faulty. These are not the kinds of activities that lend themselves 
to exhaustive codification in advance. The genius of a common law 
system is that it allows the law to develop guided by experience. I 
think any effort to codify ``enemy combatant'' status with greater 
specificity will simply create a new set of gray zones, arrest the 
rational development of the law of war based on real experience, and 
end up unwisely putting our military in a statutory straightjacket.
B. Determination of Status under the Geneva Convention
    The President has determined that neither members of al Qaeda nor 
Taliban fighters are entitled to the protections of the Geneva 
Convention. While some lower courts and critics have carped about this 
decision, there can be no doubt that al Qaeda and the Taliban fail to 
meet the Geneva Convention's eligibility criteria.
    It must be borne in mind that the choice here is not between 
applying the Geneva Convention versus applying no law at all. Under the 
common law of war, military detainees must be held under humane 
conditions--that is the general rule in the absence of specific treaty 
agreement. The Geneva Convention establishes an additional level of 
special ``privileges'' that are to be enjoyed by the forces of those 
countries that conduct their military operations in accord with 
civilized norms, and that agree to treat their own prisoners in like 
manner. The whole purpose for offering these ``privileges'' is to 
promote adherence to the laws of war by rewarding those countries that 
comply.
    It is perverse to suggest that we should extend the privileges of 
the Geneva Convention to al Qaeda or Taliban fighters--groups who have 
flagrantly flouted all civilized norms and are among the most 
perfidious and vicious in history. As one leading treatises in this 
area notes, ``the only effective sanction against perfidious attacks in 
civilian dress is deprivation of prisoner-of-war status.'' Rosas, The 
Legal Status of Prisoners of War 344. In 1987, when the Reagan 
administration rejected a proposed protocol that would have extended 
POW rights to captured terrorists, his decision was almost universally 
hailed, with both the New York Times and the Washington Post weighing 
in with approving editorials.
    If we did grant privileged status to al Qaeda and Taliban captives 
they would enjoy the right to be held in essentially the same billet 
conditions as the capturing country's own forces; the right to be 
immune from the full range of coercive interrogation that would 
otherwise be permissible under the laws of war; and, if tried for 
offenses, the right to be tried before the same kind of tribunal that 
would apply to the capturing country's own troops. Voluntarily granting 
these rights to al Qaeda operatives would make no sense; subvert the 
very goals the Conventions are intended to promote; and gravely impair 
our ability to break down al Qaeda as an organization and to collect 
the intelligence essential to accomplish this.
    The Geneva Conventions award protected POW status only to members 
of ``High Contracting parties.'' \8\ Al Qaeda, a non-governmental 
terrorist organization, is not a high contracting party.\9\ This places 
al Qaeda--as a ``group''--outside the laws of war. Furthermore, al 
Qaeda and the Taliban fail to meet the eligibility criteria set forth 
in Article 4 of the Geneva Convention. To qualify for protected status, 
the entity must be commanded by a person responsible for his 
subordinates, be outfitted with a fixed distinctive sign, carry its 
arms openly, and conduct its operations in accordance with the laws of 
war.\10\
---------------------------------------------------------------------------
    \8\ Convention Relative to the Treatment of Prisoners of War, Aug. 
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 2.
    \9\ See Memorandum for the Vice President, et al. from President, 
Re: Humane Treatment of al Qaeda and Taliban Detainees at 1.
    \10\ Id. at art. 4A(2).
---------------------------------------------------------------------------
    Al Qaeda and the Taliban fail to satisfy even one of these four 
bedrock requirements. These enemies our Armed Forces face on the 
battlefield today make no distinction between civilian and military 
targets and provide no quarter to their enemies. They have no organized 
command structure and no military commander who takes responsibility 
for the actions of his subordinates. Al Qaeda and the Taliban wear no 
distinctive sign or uniform and violate the laws of war as a matter of 
course. Consequently, these organizations do not qualify for the POW 
protections available under the Geneva Convention.
    For these reasons, the President rightly concluded that al Qaeda 
and the Taliban do not qualify for POW status under Article 4 of the 
Geneva Convention.\11\ The President's determination that the Geneva 
Convention does not apply to al Qaeda and Taliban members is 
conclusive. This determination was an exercise of the President's war 
powers and his plenary authority over foreign affairs,\12\ and is 
binding on the courts.\13\ Furthermore, the United States has made 
``group'' determinations of captured enemy combatants in past 
conflicts.\14\ Accordingly, ``the accepted view'' of Article 4 is that 
``if the group does not meet the first three criteria . . . the 
individual member cannot qualify for privileged status as a POW.'' \15\
---------------------------------------------------------------------------
    \11\ See Memorandum for the Vice President, et al. from President, 
Re: Humane Treatment of al Qaeda and Taliban Detainees at 1.
    \12\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
320 (1936).
    \13\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).
    \14\ See, e.g., Howard S. Levie, Prisoners of War in International 
Armed Conflict, 59Int'lStud. 1, 61 (1977); Adam Roberts, 
Counterterrorism, Armed Force, and the Laws of War, 44 Survival no. 1, 
23-24 (Spring 2002).
    \15\ W. Thomas Mallison and Sally V. Mallison, The Juridical Status 
of Irregular Combatants Under the International Humanitarian Law of 
Armed Conflict, 9 Case W. Res. J. Int'l 39, 62 (1977).
---------------------------------------------------------------------------
    As far as I can tell, none of the President's critics have advanced 
any set of facts that would call into question the merits of the 
President's decision. I have heard no serious argument that either al 
Qaeda or the Taliban fall within the requirements of Article 4 and thus 
are entitled to protection under the Convention. Instead, what we see 
is a lot of sharp ``lawyer's'' arguments that the President is somehow 
precluded from making a group decision and that the eligibility of 
detainees must be determined through individualized hearings before 
``competent tribunals.'' These arguments largely rest on a misreading 
of Article 5 of the Convention.
    Article 5 of the Convention provides that:

        [t]he present Convention shall apply to the persons referred to 
        in Article 4 from the time they fall into the power of the 
        enemy and until their final release and repatriation. Should 
        any doubt arise as to whether persons, having committed a 
        belligerent act and having fallen into the hands of the enemy, 
        belong to any of the categories enumerated in Article 4, such 
        persons shall enjoy the protection of the present Convention 
        until such time as their status has been determined by a 
        competent tribunal.\16\
---------------------------------------------------------------------------
    \16\ Convention Relative to the Treatment of Prisoners of War, Aug. 
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 5.

    There is nothing in this Article that forecloses the President from 
reaching a threshold decision that a particular military formation does 
satisfy the Treaty standards. Since the Convention's coverage depends, 
in the first instance, on whether a group in which the detainee 
participated has the requisite attributes, it necessarily calls for a 
``group'' decision. Certainly, Article 5 does not mean that a group's 
eligibility can be relitigated through a series of individualized 
proceedings. By its terms, Article 5 applies only where an acknowledged 
belligerent raises a doubt whether he is qualifies for POW status. I am 
not aware that any detainee has raised any ``doubt'' as to his status. 
On the contrary, the principal argument of critics has been that a 
detainee can successfully raise doubt, within the meaning of Article 5, 
simply by asserting he is eligible. But the United States has expressly 
refused to adopt a modification of the Treaty that sought to establish 
that regime.
    It seems to me that, once a particular organization has been found 
not to qualify under Article 4, no individualized inquiry under Article 
5 is appropriate or necessary unless a detainee is raising a plausible 
claim that he belongs to another category that does qualify under 
Article 4. The classic example is the case of a pilot who, after 
conducting his mission, is shot down, sheds his uniform trying to 
escape, and is later apprehended and accused of sabotage. The evident 
purpose of Article 5 is to allow the pilot to make the claim that he is 
covered by the Geneva Convention because he carried out his belligerent 
acts as a member of the regular Armed Forces of a signatory power. 
Here, the detainees have raised no colorable claims that they are 
members of a force that falls within the categories set forth in 
Article 4.
C. The Propriety of Military Tribunals
    I would like to turn, finally, to that group of detainees whom the 
United States is accusing of committing violations of the laws of war. 
The President has, by order, established military commissions to try 
these individuals for their offenses. While the law of war once 
permitted summary execution for certain war crimes, the use of military 
commissions has now emerged as the norm, affording a more regular 
mechanism by which military commanders can impose punishment on enemy 
forces. Ever since the Revolution, the United States has had a 
consistent practice of using military commissions to try members of 
foreign forces for violations of the laws of war.\17\ Congress has long 
recognized the legitimacy of military commissions as a means to 
prosecute war criminals,\18\ and the courts have specifically upheld 
their use.\19\
---------------------------------------------------------------------------
    \17\ William Winthrop, Military Law and Precedents, 464, 832 (2d 
ed. 1920); Major William Birkhimer, Military Government and Martial 
Law, 533-35 (3d ed. 1914).
    \18\ See, e.g., Act of March 3, 1863, Sec. 30 (12 Stat. 731, 736).
    \19\ As the Court stated, ``the detention and trial of [war 
criminals]--ordered by the President in the declared exercise of his 
powers as Commander in Chief of the Army in time of war and of grave 
public danger--are not to be set aside by the courts without the clear 
conviction that they are in conflict with the Constitution or laws of 
Congress constitutionally enacted.'' Ex Parte Quirin, 317 U.S. 1, 25 
(1942).
---------------------------------------------------------------------------
    In one sense we seem to making progress. Originally, when the 
President promulgated his military tribunal order, there was a hue and 
cry in some quarters that this was an end run around Article III courts 
and that all proceedings belonged in out civilian court system. But at 
this stage there does not appear to be any real argument that these 
trials belong in civilian courts. It now seems to be widely conceded 
that military commissions are, in fact, the place where war crimes 
should be prosecuted.
    Some have suggested that there is a need for Congress to expressly 
authorize the use of military commissions. There have also been 
suggestions that Congress should dictate the precise procedures to be 
used in military commissions, and that these should be required to 
mirror the process used in regular courts-martial. I disagree with both 
of these suggestions.
    First, there is no need for Congress to authorize military 
commissions. The authority to establish military commissions is 
expressly granted to the President under Article II of the Constitution 
as an inherent part of his power as ``Commander in Chief.'' It has long 
been recognized, both as a matter of legal theory and historical 
practice, that the power to punish enemy forces is integral to a 
commander's authority--it is one and the same with the commander's 
power to direct the killing or capturing of enemy forces. Military 
commissions are thus a military instrument--a means by which a 
commander attempts to control the conduct of enemy forces in the field 
by punishing, or threatening to punish, their forces for violations of 
certain civilized norms. As Abraham Lincoln's attorney general 
correctly observed, ``The commander of an army in time of war has the 
same power to organize military tribunals and execute their judgments 
that he has to set his squadrons in the field and fight battles.'' 
Undoubtedly, this is why military commissions have been so consistently 
used throughout our history.
    Second, Congress has, in fact, already authorized the use of 
military commissions. In 1916 Congress revised the Articles of War to 
expand court-martial jurisdiction (i.e., jurisdiction over members of 
the U.S. military) to include offenses against the laws of war. Article 
15 of this codification stated that the creation of statutory 
jurisdiction for courts martial does not ``deprive military commissions 
. . . of concurrent jurisdiction with respect to offenders or offenses 
that . . . by the law of war may be tried by military commissions.'' In 
proposing this new article, the Army Judge Advocate General explained 
that it was meant to ``save'' the pre-existing jurisdiction of common 
law military commissions. In both the Yamashita and Madsen cases, the 
Supreme Court noted that Article 15 was intended to preserve non-
statutory jurisdiction of military commissions established by the 
President or commanders in the field to try law-of-war violations.
    In Quirin, the Supreme Court held that Article 15 constituted 
congressional authorization for the President to create military 
commissions. The Court noted that ``Congress [in Article 15] has 
explicitly provided, so far as it may constitutionally do so, that 
military tribunals shall have jurisdiction to try offenders or offenses 
against the law of war in appropriate cases,'' and held that ``Congress 
[in Article 15] has authorized trial of offenses against the law of war 
before such commissions.'' In 1950, Congress affirmed the Court's 
construction when, against the backdrop of the Court's decisions, it 
recodified Article 15 as Article 21, expressly indicating in the 
legislative history that it was aware of, and accepted, the Court's 
construction. See S. REP. 486, Establishing a Uniform Code of Military 
Justice, 81st Cong., 1st Sess., at 13 (June 10, 1949) (`The language of 
[Article of War] 15 has been preserved because it has been construed by 
the Supreme Court. (Ex Parte Quirin, 317 U.S. 1 (1942)''); H.R.REP. 
491, Uniform Code of Military Justice, 81st Cong., 1st Sess., at 17 
(April 28, 1949) (same).
    The great advantage of military commissions, obviously, as common 
law courts, is that their procedures are flexible and can be tailored 
to meet military exigencies at any given time. Neither the Constitution 
nor the laws of war dictate any particular set of rules for trials 
before military commissions. Because these are executive courts, 
designed to aid the President in carrying out his Commander in Chief 
responsibilities, the President and his commanders can readily adapt 
their procedures to changing conditions. In selecting procedures, the 
President must balance the interests of fairness with the National 
security interests of the country and the practical exigencies of the 
particular military campaign. In recognition of this, Congress has, in 
Article 36, given the President broad authority to prescribe 
``[p]retrial, trial, and post-trial procedures, including modes of 
proof, for cases arising under this chapter triable in . . . military 
commissions and other military tribunals.'' 10 U.S.C. Sec. 836. For 
this reason, I think it would be a mistake to set in statutory concrete 
any particular set of procedures or standards. Especially given the 
fluid threats we face today, it is essential to maintain the 
flexibility inherent in military commissions.

   STATEMENT OF PROFESSOR STEPHEN A. SALTZBURG, WALLACE AND 
   BEVERLEY WOODBURY UNIVERSITY PROFESSOR OF LAW, THE GEORGE 
                WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Saltzburg. Thank you, Mr. Chairman. It's a pleasure to 
be here today, and I'd like to say it's particularly delightful 
on this panel with Attorney General Barr, who is someone I have 
the greatest respect for, and Dean Hutson is also one of the 
great thinkers about military law. If we can help today, it's 
largely because of what they do, probably more than I.
    I have given you an extensive written statement and I don't 
want to read it and I don't want to go through it in detail. It 
covers almost all of the issues that you have asked us to think 
about. But I do want to address several things that appear to 
have been important on your first panel.
    First, Mr. Chairman, you asked a very important question, 
and I don't think you got a good answer to it, and that is if 
Congress acts and enacts legislation, will that improve, or 
will it bolster the executive's ability to defend actions in 
Federal court? The answer to that is clearly, yes. I was a 
little surprised that--it is well established, we teach this 
now in Constitutional Law 101--no one mentioned, Justice 
Jackson's opinion in Youngstown Steel, where he basically 
defined three categories of situations: the first is when the 
President, as General Barr said, acts alone invoking executive 
power; well, he has some. The courts will look at that and 
defer to some extent to the President. But where Congress acts 
and authorizes the President to act, and it's Congress plus the 
President, it's Article I and Article II of the Constitution 
together, the Article III courts give greatest deference. Of 
course, where Congress chooses to impose restrictions on the 
executive, that's when the courts believe the President's power 
is weakest.
    So the real question I think is not whether it would be 
helpful to the President for Congress to act; it would. This is 
not something where it's Congress versus the administration. We 
are in this together. This is Congress trying to figure out how 
to enact legislation that will say to the world that this 
entire government stands behind what we are doing. The American 
people stand behind it. We have taken a careful look at it, and 
it's no coincidence I use the term AWOL to describe Congress in 
my written testimony. Mr. Chairman, I think you're exactly 
right in your opening statement. Congress has not shown 
sufficient interest in this. You funded everything, but haven't 
looked at it, and haven't tried to tailor it. You don't want to 
get into micromanaging, but there are certain issues that I 
think are on the table that need to be examined carefully.
    Let's look at what they are. First, and you don't need just 
Youngstown Steel, by the way. If you want further modern recent 
evidence of the importance of Congressional action, just look 
at Hamdi, the plurality opinion by Justice O'Connor basically 
makes it clear, if you hadn't issued the joint resolution in 
September 2001, then the enemy combatant detention would have 
been in big trouble in the Supreme Court. It's because Congress 
acted and the President relied on Congress's authority that the 
President was upheld by, even there, by a divided court.
    But what are the issues that have arisen? Well, first there 
is this question of who is an enemy combatant. Contrary to some 
of the things you heard this morning, that term is not one of 
those terms of art that has a clearly established meaning. The 
Geneva Conventions do define who is lawfully engaged in warfare 
and who is engaged in warfare unlawfully, but this term enemy 
combatant was one that was drawn from a Supreme Court opinion 
in Ex parte Quirin and it's one that hasn't been used that 
often. The question is who should be detained or eligible for 
detention? We have detained people in circumstances in which 
it's easy to defend what the executive has done. On the 
battlefield in Afghanistan. On the battlefield in Iraq, people 
fight us, they fight us unlawfully; we have the right to seize 
them and to detain them. In my opinion, whether a person is an 
American citizen as Yassir Hamdi was, if he is on the 
battlefield fighting against United States troops, he is just 
as subject to being detained as anybody else fighting for the 
enemy. That's my view about it. That's not to say what process 
he should have, but just that he is eligible for detention.
    More difficult is the case being readied for argument as we 
sit here, the Padilla case, where the President has claimed the 
right to detain as an enemy combatant a United States citizen 
seized in O'Hare Airport who was far from the battlefield, who 
is alleged to have been studying with al Qaeda, looking at 
bombing. But there is a question. Does that kind of person 
qualify? What does it mean to be a supporter of or someone in 
sympathy with al Qaeda or related or affiliated organizations?
    The question is how far are we as a country willing to go 
to broaden the definition of what we ordinarily think of as a 
combatant, to cover people who are far, far removed but are 
offering some kind of support or cheerleading perhaps for 
things that we despise, and that pose dangers to us. That's one 
of the issues. Does it matter? I have laid out some of the 
questions I think Congress should ask. Does it matter whether 
we're dealing with American citizens? Does it matter whether 
people are captured on the battlefield or far removed from it? 
That's one set of issues.
    A second set of issues is how long can we keep people 
without trial. Some people we want to try and I think one of 
the problems that, Mr. Chairman, you point out is by not 
bringing anyone to trial, we cast doubt on whether or not these 
people are such serious criminal elements as we have 
maintained. Because there is no public presentation of 
evidence, no one in the world is sure whether the people who 
were detained are really as bad as we say they are, and warrant 
the kind of trials that we say they warrant. So it is important 
to get this process moving.
    As to the question about military commissions, I couldn't 
agree more with Attorney General Barr. Military commissions 
have been around since the Revolutionary War. They have a 
pedigree. They are used throughout the world. There is nothing 
to apologize about for military commissions. However, this is a 
unique use of them. We have not used military commissions 
before against groups like al Qaeda, because we have never had 
to fight this kind of battle. We have never had to set up a 
thing like Guantanamo, where we move people from around the 
world into our facilities for interrogation, for detention and 
now for prosecution. The question is, should we have procedures 
that recognize that this is in fact unique?
    If we captured somebody--Senator McCain is a person that I 
should defer to on this--but if we captured somebody committing 
a war crime in Vietnam, and we being the United States, we 
would reserve the right to have a military commission and to 
prosecute that person and we would probably do it right there, 
in country, and the punishment would be right there. But that's 
because they were on the battlefield. We didn't have to worry 
so much about making a mistake about whether or not we had 
somebody that was really the enemy. When you reserve the right 
to seize people who were far removed from the battlefield, and 
you move them into a place like Guantanamo, additional issues 
arise. The question is what kind of procedures are we to have?
    Now, the American Bar Association with whom I do a lot of 
work, but for whom I cannot speak completely today, has an 
operating policy which I strongly support, and that is that 
civilian counsel should be welcomed in these military 
commissions. We have lawyers, fine lawyers who are there to 
make sure that due process is provided, and yet the military 
commission process has done a lot to discourage them, and to 
treat civilian counsel, who in Federal courts throughout the 
United States are deemed perfectly capable of handling 
classified information, as being threats. There is something 
wrong with that process, it's cast doubt on whether we have 
confidence in the legal system in the United States and the 
rule of law. I think that's an issue that your subcommittee and 
the entire committee needs to look at.
    There is a question about, and I think it may have come up 
in the earlier panel; I think Senator McCain may have asked it. 
Why don't we have some kind of civilian review here? I spoke to 
an attorney general with one of our principal allies who has 
spent hours and hours and hours with the administration urging 
that if we had civilian review, appellate review of the 
commissions, that his country would be satisfied with the 
process. That that would provide a sense of fairness, a sense 
that this is not some kind of a criminal prosecution where the 
executive picks the judges, picks the jurors, picks the 
appellate tribunal, and therefore everything is kind of fixed 
in advance. Civilian review matters and I think that's 
something that this committee could consider. It could consider 
recommending, for example of a panel of Article III judges. It 
could consider giving jurisdiction to the United States Court 
of Appeals for the Armed Forces, an Article I court, but a 
court of five civilian judges who have extensive experience in 
military justice.
    The American Bar Association urged the President and urged 
the executive when the commissions were being set up to follow 
the rules on court-martial as much as possible, and the 
decision was made not to do that. I think that undercut a sense 
of fairness. It's not the Federal Rules of Evidence, by the 
way, that people think perhaps should be used here. It's the 
military rules of evidence, which have been in effect for many 
years now. Those rules, modified to recognize the necessities 
of Guantanamo, would have been a much better place to start 
than the decision that all relevant evidence would be 
admissible, which again cast doubt on whether the same kind of 
fairness that we give our soldiers is going to be provided to 
the detainees who are actually put on trial.
    So the question of what kinds of procedures, and who ought 
to be tried, these are questions that I think are very real and 
very important questions.
    You heard a lot yesterday, and you've heard some today 
about the treatment of detainees. I have included a lot in the 
testimony that I've written on recommendations for what we 
should do to assure the fair treatment of detainees. I think 
that the point that was made and should be emphasized is, every 
time people in high positions of authority express doubt on 
whether the use of dogs, or whether the threats, or whether 
making people, men wear women's clothing or expose themselves 
naked to women interrogators--every time we express doubts 
about whether that's inhumane, or whether that's degrading, we 
invite the world to do that to our soldiers when they're 
captured. The Geneva Conventions and everything about them 
after World War II were to assure that we were setting 
standards that we were confident that we would apply, and that 
we would demand would be applied to our soldiers. When we give 
on those things, when we weaken it, all we do is put the men 
and women who are out there at risk, we put them at greater 
risk. That's something we don't want to do.
    I don't have a doubt in my mind that the Geneva 
Convention's prisoner of war provisions may not apply to al 
Qaeda, that may be a very reasonable judgment. There is a big 
debate in the international community about the Taliban and 
whether they can be denied prisoner of war status. I'll let the 
people who are better experts on the Geneva Conventions than I 
speak to that. But there is a very strong argument, and I think 
most people subscribe to it, that common Article 3 of the 
Geneva Conventions providing for humane treatment of prisoners 
applies to everybody, and that we're bound by that, even though 
we're dealing with people who are not themselves signatories.
    Well, that's my opening remarks. I'd be happy to answer any 
questions that any of you might have.
    [The prepared statement of Mr. Saltzburg follows:]

               Prepared Statement by Stephen A. Saltzburg

                            I. INTRODUCTION

    Senator Graham, and members of the subcommittee, I appreciate the 
opportunity to testify before you this morning. In 2001, shortly after 
the attacks on the World Trade Center and the Pentagon, the President 
of the American Bar Association (ABA) appointed a Task Force on 
Terrorism and the Law. That Task Force was succeeded by the American 
Bar Association Task Force on Enemy Combatants which continues to this 
day. I had the privilege of serving on both Task Forces and in 
participating in debates in the ABA House of Delegates on many of the 
issues this subcommittee is considering this morning. I draw upon ABA 
resolutions and Reports to the House of Delegates for much of this 
testimony. I shall identify ABA policy where it exists and also 
indicate some of my own views as I proceed.
    For many years I have served as the General Counsel of the National 
Institute of Military Justice (NIMJ), a non-partisan entity designed to 
improve and educate the public about military justice. Although NIMJ 
has been involved in discussions about the issues I address, it has 
taken no position on those issues. Nothing I say here today should be 
viewed in any way as endorsed by NIMJ.
    The horrific bombings of the London subway and bus last week remind 
not only those of us who reside in the United States but all those who 
reside in Western-style democracies throughout the world of the dangers 
posed by international terrorism. Since the unprecedented attacks 
suffered by the United States on September 11, 2001, the United States 
has devoted enormous resources to protecting the homeland against 
additional terrorism attacks. The President, the Department of Defense 
(DOD), the Department of Justice (DOJ), intelligence agencies and the 
relatively new Department of Homeland Security (DHS) have made 
eradicating terrorism one of the most important priorities of the 
United States.
    The London bombings, following bombings in Madrid and elsewhere in 
the world, demonstrate that, while the United States may be the 
principal target of terrorists, it is not the exclusive target. It has 
become clearer and clearer that one nation acting alone cannot 
effectively respond to the terrorist threat. International cooperation 
is essential. Just as the world's sympathy was with Britain when its 
celebration over being awarded the 2012 Olympic games quickly turned to 
mourning the deaths of scores of innocent people and injuries to 
hundreds of others, the world's sympathy was with the United States 
following the attacks in New York and the Washington, DC, area on 
September 11. But, as time has passed, sympathy toward the United 
States has turned to dismay in many parts of the world as to the manner 
in which the United States has carried out its ``war on terror.''
    In truth, we now understand, better than we ever have, that we have 
a new type of enemy and face novel challenges in seeking to defeat that 
enemy. Tools that might have seemed sensible, even necessary, in the 
immediate aftermath of September 11 need to be re-evaluated. We must be 
constantly aware of how our actions are perceived throughout the world, 
and how easy it is to turn trust into distrust as a result of missteps. 
We cannot win the war on terror alone, any more than Britain or Spain 
can win it alone. We need their help as they need ours. It is 
imperative, therefore, that the policies of the United States be seen 
throughout the world as just and fair responses to the clear and 
present dangers posed by international terrorism.
    On September 18, 2001, Congress enacted a Joint Resolution (Public 
Law 107-40, 115 Stat. 224) authorizing the President ``to use all 
necessary and appropriate force against those nations, organizations, 
or persons he determines planned, authorized, committed, or aided the 
terrorist attacks on September 11, 2001, or harbored such organizations 
or persons, in order to prevent any future acts of international 
terrorism against the United States by such nations, organizations or 
persons.'' The Preamble to the resolution states that the acts of 
September 11 were attacks against the United States that ``render it 
both necessary and appropriate that the United States exercise its 
right to self-defense.''
    The United Nations (U.N.) Security Council approved a resolution 
recognizing the United States' right to self-defense, see U.N.S.C.Res. 
1368, and the North Atlantic Treaty Organization's (NATO) North 
Atlantic Council stated that it regarded the attack as an action 
implicating Article V of the Washington Treaty that ``an armed attack 
against one or more of the Allies in Europe or North America shall be 
considered an attack against all.''
    Congress's Joint resolution was bolstered by the actions of the 
U.N. and NATO. The international community understood the need for the 
United States to act. The President sent troops to Afghanistan, those 
troops removed the repressive Taliban regime from power, and there was 
widespread support for and understanding of the need to prevent a 
nation from providing territory for terrorist training camps and from 
harboring terrorist groups.
    Questions about the plans of the United States to deal with 
terrorism began to arise in connection with the November 13, 2001 
military order in which the President announced that certain non-
citizens would be subject to detention and trial by military 
authorities. The order provides that non-citizens whom the President 
deems to be, or to have been, members of the al Qaeda organization or 
to have engaged in, aided or abetted, or conspired to commit acts of 
international terrorism that have caused, threaten to cause, or have as 
their aim to cause, injury to or adverse effects on the United States 
or its citizens, or to have knowingly harbored such individuals, are 
subject to detention by military authorities and trial before a 
military commission. The President's Military Order was cause for 
concern for a number of reasons. One of the most important was that it 
appeared to arrogate to the President complete authority to ``deem'' 
individuals to be members of al Qaeda or to have aided, abetted, or 
conspired to commit acts of terrorism and to prescribe procedures for 
prosecutions that lacked many of the hallmarks of American criminal 
justice that are associated with basic notions of due process and 
fundamental fairness.
    The DOD has now adopted procedures for military commissions and has 
developed a non-exclusive list of war crimes that can be prosecuted 
before such commissions. The proposed use of military commissions, as 
opposed to civilian courts, has been controversial from the date the 
military order issued, and the controversy has become more rather than 
less heated over time. The procedures governing the commissions have 
generated much of the controversy.
    In addition to prescribing military commissions to try unlawful 
combatants, the executive constructed the Guantanamo facility to hold 
unlawful combatants. Although the executive announced plans to put some 
of the combatants on trial for violations of the laws of war, it became 
clear that many would be held for long periods of time without any plan 
to try them. They were detained for security reasons, and in many parts 
of the world there were concerns about the legality of detaining, 
perhaps indefinitely, individuals without trial.
    The executive also seized two Americans, one in Afghanistan, and 
another at the O'Hare airport in Chicago, and charged them as enemy 
combatants. Both were housed in the United States as their cases worked 
their way through Federal courts to the United States Supreme Court. 
One, Yaser Hamdi, has now been released and returned to Saudi Arabia 
following a Supreme Court decision recognizing his right to consult 
with counsel and to some procedural protections. Hamdi v. Rumsfeld, 542 
U.S. 507 (2004). The other, Jose Padilla, continues to seek his release 
in Federal court after the Supreme Court held that he had brought his 
habeas corpus challenge in the wrong Federal court. Rumsfeld v. 
Padilla, 542 U.S. 426 (2004).
    As the controversy has mounted, some of our crucial allies have 
protested the use of or the procedures for military commissions and the 
prolonged detention of individuals without trial. Civil liberties 
groups have questioned the detention of American citizens as enemy 
combatants. Throughout it all, Congress has been silent. During the 
almost 4 years since Congress authorized the President to take action 
against those responsible for the September 11 attacks, Congress has 
left to the President and the executive branch virtually unfettered 
discretion in conducting the war on terrorism. The executive's actions 
have been challenged in Federal courts. The United State Supreme Court 
held in Hamdi that the Constitution imposes some limits upon the 
ability of the President to hold ``enemy combatants'' in indefinite 
detention. The Court also held that Federal law permits those detained 
in Guantanamo to seek Federal habeas corpus review. Rasul v. Bush, 542 
U.S. 466 (2004). Lower Federal courts have struggled to decide what 
constitutional protections are due individuals whom the government 
either plans to hold without trial or to prosecute in military 
commissions. While Federal courts have not welcomed having to second 
guess the President as to the balance that should be struck between 
protecting the Nation and preserving individual rights, they have 
recognized their duty to decide the cases brought before them. The 
courts could not and did not shirk their responsibility to assure that 
basic constitutional values are not lost in the executive's war on 
terrorism.
    This duty is not the courts' alone; it is shared with Congress. 
Yet, while the courts have met their responsibilities, Congress has 
provided the courts with no more guidance than it has provided the 
President. Congress has been silent for too long. There is no evidence 
of congressional determination or courage to participate in the growing 
debate about how to combat terrorism without compromising the values 
for which the United States has long been proud to stand. Congress's 
potential to advise the President, to assist the executive by adopting 
legislation to deal with some of the knotty problems of substance and 
procedure that have arisen, and to demonstrate both to the American 
people and people throughout the world that the September 18, 2001, 
Joint Resolution was not a blank check from Congress to the President 
has gone unfulfilled.

II. CONGRESS AND THE PRESIDENT SHARE POWER OVER THE MILITARY, MILITARY 
                      COMMISSIONS, AND DETENTIONS

    The Constitution of the United States unmistakably gives Congress 
as well as the President authority over military matters. Article I, 
Section 8, grants to Congress the powers: ``To . . . provide for the 
common Defence'' (clause 1); ``To define and punish piracies on the 
high seas, and offenses against the Law of Nations; To declare war, 
grant letters of Marque and Reprisal, and make Rules concerning 
Captures on Land and Water; To raise and support Armies ; To provide 
and maintain a Navy; To make Rules for the Government and Regulation of 
the land and naval Forces'' (clauses 10-14). Article II confers on the 
President the ``executive Power'' (Section 1) and makes him the 
``Commander in Chief of the Army and Navy'' (Section 2).
    Congress exercised its constitutional authority when it enacted the 
Uniform Code of Military Justice (UCMJ). Indeed, Congress provided in 
the Code for military commissions in Article 21 (10 U.S.C. Sec. 821). 
That section provides:

          The provisions of this chapter conferring jurisdiction upon 
        courts-martial do not deprive military commissions, provost 
        courts, or other military tribunals of concurrent jurisdiction 
        with respect to offenders or offenses that by statute or by the 
        law of war may be tried by military commission, provost court, 
        or other military tribunals.

    The history of the section indicates that Congress intended to 
preserve the option in some circumstances for the executive to choose 
between using military commissions or other tribunals such as court-
martial. In Application of Yamashita, 327 U.S. 1 (1946), the Supreme 
Court explained that Article of War 15, which was substantially similar 
language to UCMJ Article 21, was adopted in 1916 in response to other 
amendments of the Articles of War that which granted jurisdiction to 
courts-martial to try offenses and offenders under the law of war. The 
Court found that the language was intended to preserve the traditional 
jurisdiction of military tribunals. In Madsen v. Kinsella, 343 U.S. 
341, 346-47 (1952), the Court made the following statement about 
military commissions: ``Since our Nation's earliest days, such 
[military] commissions have been constitutionally recognized agencies 
for meeting many urgent governmental responsibilities relating to war. 
They have been called our common-law war courts.''(Footnote omitted)
    In Article 18 of the UCMJ, Congress provided that ``[g]eneral 
courts-martial also have jurisdiction to try any person who by the law 
of war is subject to trial by a military tribunal and may adjudge any 
punishment permitted by the law of war.'' Thus, Congress has given the 
President and the military choices as to how to proceed against those 
who violate the law of war. Whether Congress should do more and provide 
clearer guidance as to the manner in which military commissions should 
be employed and what should happen when there is insufficient evidence 
to prosecute individuals for violating the laws of war or there are 
other reasons why prosecution is impractical is a question that cries 
out for an answer.
    Just as Congress had the power to authorize the continued use of 
military commissions and to prescribe court-martial jurisdiction, 
Congress has the constitutional authority to impose restraints and 
conditions upon the exercise of the power to prosecute. Congress also 
shares authority with the executive to define the conditions under 
which individuals may be detained. This includes the power to define 
when, how, and under what circumstances and procedures enemy combatants 
may be detained. Nevertheless, as the executive built the detention and 
interrogation facilities at Guantanamo, Congress provided the funds but 
no guidance, direction or control.
    Congress did enact the USA Patriot Act in response to the war on 
terror. That statute, while controversial, expanded executive power in 
recognition of the increased dangers to the United States posed by 
terrorism. Because some provisions of the statute will expire this year 
unless reenacted, Congress now must examine the way in which the 
statute has been implemented. But, aside from examining the provisions 
of the Patriot Act that will otherwise sunset soon, Congress has been 
absent without leave (AWOL) in the war on terror for too long.

                 III. WHAT TO DO WITH ENEMY COMBATANTS?

    One of the most controversial aspects of the war on terrorism has 
been the use of the term ``enemy combatant'' and the executive's claim 
that such combatants may be detained until the war on terrorism is 
over--which may be for life. Congress has not been heard on the 
question of how to treat such combatants, despite the fact that life 
imprisonment without trial is almost incredible to contemplate in a 
country devoted to due process and the rule of law.
    The executive position had been that enemy combatants may not only 
be detained indefinitely, but also that while they are detained they 
have no right under the laws and customs of war or the Constitution to 
meet with counsel. The U.S. Supreme Court rejected the executive's 
position regarding counsel in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), 
but the executive continues to claim the power to detain such 
combatants for their entire lives.
    Under any circumstances, the claim of power to detain indefinitely 
would be cause for concern. Under the circumstances of the war on 
terror, there is special reason for concern. Contrary to what might 
seem the case when the term is used again and again by executive 
officials, the term ``enemy combatant'' is not one that has been 
frequently used by the military or one that has a well-established 
meaning when the law of war is discussed.
    The law of war generally assumes that states or quasi-states are 
warring, and the word ``enemy'' generally means the state against which 
another state is fighting. When there is no declaration of war that 
specifically dates the beginning of a war, one looks to whether the use 
of force has risen to such a level that a de facto state of war exists. 
Based on the September 18, 2001 Joint Resolution and the existence of 
United States forces on the ground in Afghanistan, it appears that the 
United States was at war in 2001. But, it is less clear precisely who 
the enemy was and is. Were we at war against Afghanistan? Or were we at 
war against al Qaeda (the party responsible for the September 11, 2001 
attacks) and the Taliban (who harbored al Qaeda)? Whether or not our 
original effort was directed against the country or only against 
selected groups within the country, once Afghanistan had a new 
government, the American military effort was clearly directed at al 
Qaeda and the Taliban as well as other groups and individuals 
supporting them. Fighting a war against distinct groups as opposed to 
against a nation poses unique problems for any nation.
    A ``combatant'' in the law of war is typically a member of an Armed 
Force, who is readily distinguishable from a civilian, because the 
combatant typically wears a uniform and carries a distinctive 
identification card or document. A combatant in the war on terrorism is 
not so readily identified, because he/she is unlikely to be in uniform 
or carrying an identification document showing his/her group 
membership. A combatant in the war on terror may attack his or her own 
country's soldiers as in Afghanistan and Iraq as well as soldiers from 
other countries.
    The law of war applies to non-state actors, such as insurgents. See 
Common Article 3 of the 1949 Geneva Conventions, e.g., Convention 
Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 
3516, T.I.A.S. 3365, 75 U.N.T.S. 287. See also The 1977 Protocols 
Additional to the Geneva Conventions, 16 I.L.M. 1391 Although the U.S. 
has not ratified the 1977 Protocols, it recognizes that parts of them 
reflect customary law of war. The fact that the law of war applies to 
non-state actors does not mean, however, that nations prefer to apply 
that law as opposed to domestic criminal law when dealing with 
insurgencies. In fact, there is substantial evidence that nations have 
resisted applying the law of war to internal conflicts. Their concern 
has been that treating insurgencies as wars might legitimate acts of 
violence carried out by non-state actors.
    If, for example, Iraq and the United States are at war with 
insurgents, then the insurgents under the law of war may kill and 
engage in other acts of violence against legitimate targets. If, on the 
other hand, insurgencies are simply treated as criminal acts, the non-
state insurgents may be prosecuted and punished for violence against 
both civilians and military forces as well as for destruction of 
property, and cannot claim a right to use deadly force against military 
or other targets.
    There is no question that the United States and Britain have the 
right to prosecute those responsible for the September 11 attacks and 
the attacks in London last week for their homicidal and horribly 
destructive acts. The questions that have arisen for the United States 
are whether the United States may detain individuals as unlawful 
combatants and for how long, and what forum should be used for any 
prosecutions. The United States has chosen to refer to al Qaeda 
members, some Taliban fighters, and possibly others suspected of 
involvement in terrorist acts as ``unlawful combatants'' or ``enemy 
combatants.'' The use of these terms is consistent with the executive's 
claim that we are at war, even though the war against terrorists is 
directed at groups that are not confined to a single nation.
    If we are at war with al Qaeda, the Taliban, and/or the Iraqi 
insurgency, then members of those groups have the right to kill as long 
as they focus on military targets. This might suggest that denominating 
the struggle against terrorism as ``war'' is unwise, for it may 
legitimize some of the acts that otherwise would simply be criminal. 
This concern is largely theoretical, however, since there is no reason 
to believe that those who commit terrorist acts will refrain from doing 
so simply because we choose not to recognize their jihad as war. 
Moreover, terrorists show no respect for the laws of war and no 
allegiance to the principles underlying those laws. Terrorists engage 
in murder without regard to law the law of war or any other. Their 
disregard of the law of war does not immunize them, however, from 
responsibility for violating it. Terrorist acts may violate domestic 
criminal laws, and they also may violate the law of war. Under 
appropriate circumstances, terrorists may be prosecuted as ordinary 
criminals or as war criminals. Accordingly, the United States properly 
has reserved the right to prosecute terrorists for violations of the 
law of war and/or violations of domestic criminal law as the wise 
exercise of discretion dictates.
    Once we decide that we are at war with terrorist groups and they 
are combatants who are acting unlawfully, all doubt disappears about 
whether we can prosecute members of these groups and punish those who 
are found guilty. What, however, are we to do with those members who 
are caught but as to whom there is insufficient evidence to prosecute 
or whose possible prosecutions are hindered by concerns about 
disclosing military secrets or classified information? Can we detain 
such persons as prisoners for as long as the war on terrorism 
continues? This might well mean incarceration for life. It is no wonder 
that such a prospect is disturbing to many people within the United 
States and around the world. If there is insufficient evidence to 
prosecute or it is impractical to prosecute, must there at least be 
sufficient or substantial evidence of group membership? Must the 
membership be active? Or is any connection, however attenuated, 
sufficient to warrant detention? Can an individual be detained as an 
enemy combatant if he or she has not committed any act that would 
violate the law of war?
    Al Qaeda members, for example, may commit acts of war, but not 
every member of al Qaeda or an affiliated group necessarily will have 
committed an act that violates the law of war. If an individual is 
alleged to have ``supported'' or to be ``associated'' with al Qaeda, is 
this sufficient to support detention? Or, must there be evidence as to 
each that he or she actually engaged in combative acts to be so 
classified? Who decides whether a person's actions support detention? 
In what forum? Under what standards? How long can the person be 
detained?
    There are no easy answers to these questions. But, they must be 
addressed by Congress as well as the executive. In the end, the 
judiciary might well have to measure the answers given by its co-equal 
branches against the requirements of the Constitution, but its work 
will be demonstrably easier if the other two branches of government 
have come to grips with the issues and have endeavored to resolve them 
in a responsible manner consistent with the values for which America 
stands and the international norms to which we have long been 
committed.
    At its 2002 mid-winter meeting, the American Bar Association 
adopted a resolution urging the President and Congress to assure that 
the President's November 13, 2001 Military order should ``[n]ot permit 
indefinite pretrial detention of persons subject to the order.'' 
Permanent detention of persons against whom there is insufficient 
evidence to prosecute or as to whom prosecution is impractical is cause 
for much greater concern.
    The ABA has not taken a position on what standards should be 
applicable if non-citizens captured outside the United States are to be 
detained as unlawful combatants. The question of whether a non-citizen 
can be detained without prosecution raises a host of difficult issues. 
There can be no denying their difficulty, but there can be no excuse 
for Congress not facing them.
    The ABA adopted a resolution in August 2002 with respect to United 
States citizens and other persons lawfully in the United States who are 
detained as enemy combatants. The resolution called for meaningful 
judicial review and access to counsel in conjunction with the 
opportunity for such review. The resolution also called upon Congress, 
in coordination with the executive branch, to establish clear standards 
and procedures governing the designation and treatment of U.S. citizens 
and other person lawfully present in the United States as enemy 
combatants. The ABA also urged that Congress and the executive consider 
how the policies of the United States may affect the response of other 
nations to future acts of terrorism.
    In my opinion, Congress should examine all the standards and 
procedures for detaining individuals as enemy combatants. In its 
examination, Congress should ask the following questions as it seeks to 
balance liberty and security interests:

          1. Should the executive be permitted to detain individuals 
        seized as enemy combatants for extended periods of time?
          2. Does it make a difference whether a seized individual is 
        an American citizen, whether a citizen was seized on foreign 
        soil or in the United States, and/or whether a citizen is 
        detained in the United States?
          3. Who should make the initial determination that an 
        individual is an enemy combatant?
          4. What standard of proof should be used to make the 
        determination? For example, should clear and convincing 
        evidence be required to detain an individual to protect society 
        (using the standard required for civil commitment of persons in 
        the United States, Addington v. Texas, 441 U.S. 418 (1979) )? 
        Does the individual have a right to counsel when the initial 
        determination is made?
          5. Must an individual have committed a specific act in 
        support of terrorism, or should it be sufficient that a person 
        is found to be a member or supporter of a terrorist group? 
        Should any act, no matter how minor, be sufficient? Or, must a 
        showing be made that the person, if released, poses a genuine 
        threat to the United States, its people or its property?
          6. If the initial determination that an individual is an 
        enemy combatant is not made by a court, should a detained 
        person have an opportunity for judicial review? If so, in what 
        court? Should Congress consider establishing a panel of Article 
        III judges to review detention decisions, or giving 
        jurisdiction to the United States Court of Appeals for the 
        Armed Forces to review the decisions? What provision for 
        counsel should be made in conjunction with judicial review?
          7. How frequently should a detained person's status be 
        reviewed to assure that continued detention is required?
          8. If a person was seized as part of the Afghanistan or Iraqi 
        military actions, when United States involvement in the 
        hostilities in those countries ends, must the person be 
        released? Does the war on terrorism justify continued detention 
        when military action ends?
          9. Should the tribunal that decides to detain an individual 
        or a reviewing court be required to find that there are no 
        alternatives to detention that would adequately protect the 
        United States? If, for example, an individual is a citizen of a 
        country that offers to receive and monitor that individual, 
        should the person be released to that country unless a showing 
        is made that release would not adequately protect the United 
        States?
          10. Should there be an outer limit on the length of detention 
        without prosecution?

    The Supreme Court began to address some of these questions in Hamdi 
v. Rumsfeld, 542 U.S. 507 (2004), but that decision addressed the 
situation of an American citizen allegedly seized on the battlefield. 
The Court required some procedural protections for Hamdi, but was 
divided as to precisely what due process required. Because he was 
released from custody, we do not know what process ultimately would 
have been required. The fact that Hamdi provides only minimal guidance 
and that the Court avoided the merits in Padilla leave open issues that 
Congress should address. Ultimately, Federal courts will decide what 
standards and procedures are required by the Constitution, but the 
courts' task will be greatly eased if Congress and the executive 
together can derive carefully tailored standards and procedures that 
recognize the danger associated with detaining individuals for lengthy 
periods without trial as well as the dangers of terrorism in the 21st 
century.

                        IV. MILITARY COMMISSIONS

    The military commissions which the President authorized and for 
which the Department of Defense has planned have an historical 
pedigree. Military commissions have been used to prosecute violations 
of the law of war, and their use has been upheld by the United States 
Supreme Court.
    Military commissions existed during the Revolutionary War and have 
continued to be used during various conflicts since. W.Winthrop, 
Military Law and Precedents, (2d Ed., 1920 reprint) at 832. George 
Washington ordered the trial of John Andre for spying by a ``Board of 
Officers,'' which was a form of military commission. Id. The term 
``military commission'' was used during the Mexican War, and by the 
time of the Civil War was well established. Id. The jurisdiction of 
military commissions has extended to trying individuals for violations 
of the law of war and for offenses committed in territory under 
military occupation
    President Roosevelt authorized a military commission to try eight 
German soldiers for war crimes after they smuggled themselves into the 
country, hid their uniforms and planned sabotage. The Supreme Court 
upheld their convictions and death sentences for six defendants in In 
Ex parte Quirin, 317 U.S. 1 (1942). The Court specifically noted that 
``[b]y the Articles of War, and especially Article 15, Congress has 
explicitly provided, so far as it may constitutionally do so, that 
military tribunals shall have jurisdiction to try offenders or offenses 
against the law of war in appropriate cases.'' Id., at 28. The Court 
distinguished between lawful and unlawful combatants: ``Lawful 
combatants are subject to capture and detention as prisoners of war by 
opposing military forces. Unlawful combatants are likewise subject to 
capture and detention, but in addition they are subject to trial and 
punishment by military tribunals for acts which render their 
belligerency unlawful.'' Id. at 30-31 (footnotes omitted).
    United States Army military commissions tried more than 1,600 
individuals in Germany for war crimes after Germany surrendered. 
Similar commissions tried almost 1000 persons in the Far East. Military 
commissions also tried individuals, including U.S. citizens, for 
ordinary criminal activity in the occupied territories. The Supreme 
Court upheld the commissions' jurisdiction in these cases.
    Citing Quirin in Application of Yamashita, 327 U.S. 1 (1946), the 
Court upheld the jurisdiction of a military commission to try Japanese 
General Yamashita for war crimes. The Court recognized that Congress 
had sanctioned the use of the commissions: ``The trial and punishment 
of enemy combatants who have committed violations of the law of war is 
thus not only a part of the conduct of war operating as a preventive 
measure against such violations, but is an exercise of the authority 
sanctioned by Congress to administer the system of military justice 
recognized by the law of war. Id. at 11.
    Madsen v. Kinsella, 342 U.S. 341 (1952), upheld the jurisdiction of 
a military commission to try a civilian U.S. citizen for the murder of 
her U.S. serviceman husband in occupied Germany in 1950. The Court's 
opinion discussed the history of military commissions.
    The Court did not decide in Quirin or in the other cases whether 
the President as Commander in Chief has inherent power to establish a 
military commission, since Congress had authorized such Commissions. 
The same remains true today. Congress has provided for military 
commissions in the Code of Military Justice. In Quirin and other cases, 
the Supreme Court had no occasion to decide what could be done with 
unlawful combatants who are not tried or who are tried and acquitted. 
Congress has taken no position on these issues either.
    As noted above, if we are at war and war crimes are committed, 
Article 21 of the Code of Military Justice recognizes the authority of 
military commissions to prosecute those crimes. It is well established 
that a deliberate attack on noncombatant civilians violates the law of 
war. The customary law of war recognizes this principle and it is also 
reflected in several conventions, such as Common Article 3 of the 
Geneva Conventions of 1949, see, e.g., Convention Relative to the 
Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, T.I.A.S. 
3365, 75 U.N.T.S. 287.
    The September 11 attacks were not the first by al Qaeda against the 
United States. Al Qaeda was responsible for several earlier attacks; 
the World Trade Center bombing in 1993: U.S. military barracks at 
Khobar, Saudi Arabia, in 1996: U.S. embassies in Kenya and Tanzania in 
1998; and the U.S.S. Cole in 2000. Thus, if the United States is in 
armed conflict with al Qaeda, its use of military commissions to 
prosecute violations of the law of war is consistent with the use of 
such commissions from the founding of the Nation.
    There are questions, however, about how far military commissions 
can reach. The President's November 13, 2001 order applies to members 
of al Qaeda, to people complicit in acts of international terrorism, 
and to those who have harbored such persons. It is not clear that all 
of these individuals participated in or are responsible for violations 
of the law of war. Not all acts of international terrorism or support 
for such acts constitute violations of the law of war. Congress may 
wish to decide whether the jurisdiction of military commissions should 
be expanded. But, I would urge Congress to consider the 2002 resolution 
of the American Bar Association urging the President and Congress to 
assure that the President's November 13, 2001 Military order should 
``[n]ot be applicable to cases in which violations of Federal, State, 
or territorial laws, as opposed to violations of such law of war, are 
alleged.''
    In addition to examining the jurisdiction of military commissions, 
Congress needs to examine the procedures military commissions should 
use. The American Bar Association's 2002 resolution urged the President 
and Congress to assure that the President's November 13, 2001 Military 
order should ``[r]equire that its procedures for trial and appeals be 
governed by the UCMJ except Article 32 and provide the rights afforded 
in courts-martial thereunder, including but not limited to, provision 
for certiorari review by the Supreme Court of the United States (in 
addition to the right to petition for a writ of habeas corpus), the 
presumption of innocence, proof beyond a reasonable doubt, and 
unanimous verdicts in capital cases.''
    The procedures adopted by the DOD depart from the UCMJ and provide 
fewer rights than are recognized in courts-martial. The exclusion of 
the defendant from portions of the trial, the reduced evidence standard 
set forth for the commissions, and the effort to limit judicial review 
are among the controversial procedural provisions.
    For example, the President's Military Order provided that, as to 
individuals subject to it, ``military tribunals shall have exclusive 
jurisdiction with respect to offenses by the individual''; and ``the 
individual shall not be privileged to seek any remedy or maintain any 
proceeding, directly or indirectly, or to have any such remedy or 
proceeding brought on the individual's behalf, in (i) any court of the 
United States, or any State thereof, (ii) any court of any foreign 
nations, or (iii) any international tribunal.'' Notwithstanding the 
Order, the Supreme Court has recognized the right of those detained at 
Guantanamo to seek habeas corpus relief. Rasul v. Bush, 542 U.S. 466 
(2004). This is not surprising, since the Court reviewed habeas corpus 
petitions in Madsen, Yamashita, and Quirin. The scope of habeas corpus 
review is not settled, however, since the Court in Rasul interpreted a 
Federal statute which Congress could modify. Although the Rasul Court 
distinguished the denial of habeas review of a military commission in 
Johnson v. Eisentrager, 339 U.S. 763 (1950), it is unclear whether that 
decision remains good law as applied to defendants prosecuted for war 
crimes outside territory controlled by the United States. Congress has 
the opportunity to clarify and define the reach of the Great Writ to 
those detained as enemy combatants, whether or not they are prosecuted.
    It is understandable why the President would find military 
commissions preferable to prosecutions in U.S. civilian courts. 
Security is the number one concern with two principal dimensions. The 
first is a concern for the safety of judges, witnesses and jurors 
(members). The second is a concern for protection of classified 
information. It is the latter concern that has resulted in the adoption 
of procedures for the tribunals that have led many to question its 
fairness.
    Concerns about security have led the DOD to impose restrictions on 
civilian defense counsel in military tribunals that have made it 
difficult for them to play the full role in promoting justice they 
otherwise might. At its annual meeting on August 11-12, 2003, the ABA 
House of Delegates passed a resolution calling ``upon Congress and the 
executive branch to ensure that all defendants in any military 
commission trials that may take place have the opportunity to receive 
the zealous and effective assistance of Civilian Defense Counsel (CDC), 
and opposes any qualification requirements or rules that would restrict 
the full participation of CDC who have received appropriate security 
clearances.'' The ABA further resolved that the government should not 
monitor attorney-client communications, should assure that CDC can be 
present at all stages of commission proceedings, and should ensure that 
CDC should be able to consult with and do research in preparation for 
proceedings and be able to speak publicly consistent with their 
obligations under the Model Rules of Professional Conduct and their 
duty to protect classified information. The ABA's resolution followed 
an August 2, 2003, unanimous decision by the Board or Directors of the 
National Association of Criminal Defense Lawyers (which cosponsored the 
ABA resolution) that it would be unethical for a criminal defense 
lawyer to represent an accused before military commissions given the 
restrictions imposed upon defense counsel.
    The decision to use military commissions to try individuals accused 
of violating the law of war would have been much less controversial if 
the ABA recommendations had been followed. If the procedure used in a 
court-martial (with any essential modifications that might be required) 
were used in military commissions, there would have been much more 
confidence in the fairness of the proceedings. If the rules of evidence 
used in a court-martial (with slight modification possible) were used 
in military commissions, there would have been more confidence in their 
fairness. If civilian judicial review were provided, the concern of 
several of our important allies would have been satisfied.
    The fairness of military commissions is not an executive issue; it 
is a national issue. The credibility of the United States is at stake. 
The jurisdiction, procedures and judicial review issues should be a 
congressional concern. Congress, in consultation with the executive, is 
capable of providing a system of justice which fair-minded observers 
throughout the world will conclude is consistent with the highest 
standards of fairness as measured against our own traditions and those 
of the international community. The United States has seen itself as a 
shining example of a country committed to the rule of law and due 
process. The world watches to see what standards we set. As the ABA has 
noted, our actions ``may affect the response of other nations to future 
acts of terrorism.'' We have protested the use of military tribunals to 
try our citizens in other countries. If the United States concludes 
that such commissions can be fairly conducted and provide due process 
to our enemies despite the fact that the accused is not given the same 
access to counsel as in a court-martial or criminal trial, the rules of 
evidence provide less protection than in a court-martial or criminal 
trial, and civilian review is denied or extremely limited we shall be 
hard pressed to argue that other countries are less capable or entitled 
than we to use such commissions and to adopt similar procedures.
    Congress has an important role to play as we define through our 
actions for all the world to see what we think it means to do justice.

                       V. TREATMENT OF PRISONERS

    No one event has called United States policy regarding and 
commitment to humane treatment of prisoners into question as much as 
the treatment of prisoners at Abu Ghraib prison in Iraq. Although there 
have been allegations of prisoner abuse in Afghanistan and a number of 
highly publicized allegations of alleged abuse of prisoners at 
Guantanamo, Cuba, it is the pictures of American soldiers abusing 
prisoners at Abu Ghraib that created an unmistakable impression on many 
that our country was willing to use torture and/or other degrading 
measures to interrogate and/or control prisoners within our custody. 
The graphic depictions of misconduct and disregard for human dignity 
requires a strong response by the United States to show the world that 
Abu Ghraib is an aberration which Americans profoundly regret.
    On August 9, 2004, the American Bar Association adopted an 
extensive set of resolutions dealing with treatment of prisoners. I 
recommend each of these to Congress and hope that the subcommittee will 
give each serious consideration. The American Bar Association does the 
following:

          1. condemns any use of torture or other cruel, inhuman, or 
        degrading treatment or punishment upon persons within the 
        custody or under the physical control of the United States 
        Government (including its contractors) and any endorsement or 
        authorization of such measures by government lawyers, officials 
        and agents;
          2. urges the United States Government to comply fully with 
        the Constitution and laws of the United States and treaties to 
        which the United States is a party, including the Geneva 
        Conventions of August 12, 1949, the International Covenant on 
        Civil and Political Rights, the Convention Against Torture and 
        Other Cruel, Inhuman or Degrading Treatment or Punishment, and 
        related customary international law, including Article 75 of 
        the 1977 Protocol I to the Geneva Conventions, to take all 
        measures necessary to ensure that no person within the custody 
        or under the physical control of the United States Government 
        is subjected to torture or other cruel, inhuman or degrading 
        treatment or punishment;
          3. urges the United States Government to: (a) comply fully 
        with the four Geneva Conventions of August 12, 1949, including 
        timely compliance with all provisions that require access to 
        protected persons by the International Committee of the Red 
        Cross; (b) observe the minimum protections of their common 
        Article 3 and related customary international law; and (c) 
        enforce such compliance through all applicable laws, including 
        the War Crimes Act and the Uniform Code of Military Justice;
          4. urges the United States Government to take all measures 
        necessary to ensure that all foreign persons captured, 
        detained, interned or otherwise held within the custody or 
        under the physical control of the United States are treated in 
        accordance with standards that the United States would consider 
        lawful if employed with respect to an American captured by a 
        foreign power;
          5. urges the United States Government to take all measures 
        necessary to ensure that no person within the custody or under 
        the physical control of the United States is turned over to 
        another government when the United States has substantial 
        grounds to believe that such person will be in danger of being 
        subjected to torture or other cruel, inhuman or degrading 
        treatment or punishment;
          6. urges that 18 U.S.C. Sec. Sec. 2340(1) and 2340A be 
        amended to encompass torture wherever committed, and regardless 
        of the underlying motive or purpose;
          7. urges the United States Government to pursue vigorously 
        (1) the investigation of violations of law, including the War 
        Crimes Act and the Uniform Code of Military Justice, with 
        respect to the mistreatment or rendition of persons within the 
        custody or under the physical control of the United States 
        Government, and (2) appropriate proceedings against persons who 
        may have committed, assisted, authorized, condoned, had command 
        responsibility for, or otherwise participated in such 
        violations;
          8. urges the President and Congress, in addition to pending 
        congressional investigations, to establish an independent, 
        bipartisan commission with subpoena power to prepare a full 
        account of detention and interrogation practices carried out by 
        the United States, to make public findings, and to provide 
        recommendations designed to ensure that such practices adhere 
        faithfully to the Constitution and laws of the United States 
        and treaties to which the United States is a party, including 
        the Geneva Conventions, the International Covenant on Civil and 
        Political Rights, and the Convention against Torture and Other 
        Cruel, Inhuman or Degrading Treatment or Punishment, and 
        related customary international law, including Article 75 of 
        the 1977 Protocol I to the Geneva Conventions;
          9. urges the United States Government to comply fully and in 
        a timely manner with its reporting obligations as a State Party 
        to the Convention Against Torture and Other Cruel, Inhuman or 
        Degrading Treatment or Punishment;
          10. urges that, in establishing and executing national policy 
        regarding the treatment of persons within the custody or under 
        the physical control of the United States Government, Congress, 
        and the executive branch should consider how United States 
        practices may affect (a) the treatment of United States persons 
        who may be captured and detained by other nations and (b) the 
        credibility of objections by the United States to the use of 
        torture or other cruel, inhuman or degrading treatment or 
        punishment against United States persons.

    I also recommend to you the Report accompanying these resolutions. 
It identifies the issues that first arose as a result of the DOD 
approving harsh questioning techniques in Guantanamo and the migration 
of those techniques to Iraq. The Report describes the legal 
justifications that were offered by the executive for its actions:

          As the DOD and the Central Intelligence Agency (CIA) were 
        preparing and implementing their approach to interrogations, a 
        series of memoranda were being prepared by various high-ranking 
        legal officials in the executive branch which appear designed 
        to provide a legal basis for going beyond established policies 
        with regard to treatment of detainees. These memoranda set out 
        a series of arguments for restrictive interpretation of the 
        laws and treaties relevant to the subject, so as to greatly 
        curb their effect. One example, in the August 1, 2002 
        memorandum from the Department of Justice Office of Legal 
        Counsel to Alberto R. Gonzales, Counsel to the President 
        (recently rescinded by the Justice Department) concluded that 
        for an act to constitute torture as defined in 18 U.S.C. 
        Sec. 2340, ``it must inflict pain that is difficult to 
        endure'', ``equivalent in intensity to the pain accompanying 
        serious physical injury, such as organ failure, impairment of 
        bodily function, or even death.''
          Beyond their strained interpretation of the law, the 
        memoranda attempted to craft an overall insulation from 
        liability by arguing that the President has the authority to 
        ignore any law or treaty that he believes interferes with the 
        President's Article II power as Commander in Chief. In one such 
        example, government lawyers argued that, for actions taken with 
        respect to ``the President's inherent constitutional authority 
        to manage a military campaign, 18 U.S.C. Sec. 2340A (the 
        prohibition against torture) must be construed as inapplicable 
        to interrogations undertaken pursuant to his Commander in Chief 
        authority.''
          These documents, which were released publicly after they were 
        widely leaked, purported to provide authority for an aggressive 
        effort to extract information from detainees using means not 
        previously sanctioned. We do not construe the giving of good 
        faith legal advice to constitute endorsement or authorization 
        of torture. Moreover, it is unclear to what extent these 
        memoranda represented or formed the basis for official policy. 
        However, what does seem clear is that the memoranda and the 
        decisions of high U.S. officials at the very least contributed 
        to a culture in which prisoner abuse became widespread.
          The administration has acknowledged that the conduct that was 
        featured in the Abu Ghraib tapes violated the law, and pledged 
        that those who committed the violations would be brought to 
        justice. In addition, at least six investigations are underway 
        with regard to the abuse of detainees. It is important these 
        investigations be thorough and timely, and that they be 
        conducted by officers and agencies with the scope and authority 
        to reach all those who should be held responsible.

    Report 10B to House of Delegates at 3-4 (footnotes omitted).
    I believe that the United States is as committed to the humane 
treatment of prisoners as any nation, and the actions of some soldiers, 
and perhaps even some commanders, are aberrational. But, there can be 
little question that the image of this country throughout the world has 
rarely been damaged more in a short period of time than by the photos 
and stories about the treatment of the Abu Ghraib prisoners.
    It is time for Congress to act and to make clear that the 
Convention Against Torture And Other Cruel, Inhuman or Degrading 
Treatment (CAT), to which the United States is a party, recognizes no 
exceptional circumstances in which torture may be used, and that the 
United States' ratification committed this country to reject cruel, 
inhuman or degrading treatment if such treatment is prohibited by the 
Fifth, Eighth or Fourteenth Amendments to the United States 
Constitution (which we provided as a reservation when ratifying CAT). 
Congress should make clear that it is a crime for an American soldier 
or a contractor to torture prisoners, and should amend 18 U.S.C. 2340A 
to encompass torture wherever committed and regardless of the 
underlying motive or purpose. At the current time, the UCMJ prohibits 
those covered from engaging in ``cruelty and maltreatment'' of 
prisoners whether or not the conduct violates CAT. 10 U.S.C. 893. There 
is no civilian parallel to the UCMJ provision. Although the ABA did not 
recommend it, Congress might consider making it a crime for any person 
to engage in ``cruelty and maltreatment'' of prisoners outside the 
United States.
    There has been much debate--more heat than light in many 
instances--as to who is entitled to the protections of the Geneva 
Conventions. Much of the world believes that there are no gaps in the 
conventions and that all detainees are entitled to humane treatment 
under Common Article 3 of the Conventions. ``Common Article 3'' 
provides that detainees ``shall in all circumstances be treated 
humanely'' and prohibits the following acts ``at any time and in any 
place whatsoever'': ``violence to life and person, in particular murder 
of all kinds, mutilation, cruel treatment and torture;'' and ``outrages 
upon personal dignity, in particular humiliating or degrading 
treatment.'' Common Article 3 also provides that the ``wounded and sick 
shall be collected and cared for.'' Article 75 of Additional Protocol I 
protects all detainees captured in situations of either international 
or internal armed conflict. Although the United States has not ratified 
the treaty (nor has Afghanistan), it is generally acknowledged that 
relevant sections of Protocol I constitute either binding customary 
international law or good practice, in particular the minimum 
safeguards guaranteed by Article 75(2). See Michael J. Matheson, 
Remarks on the United States Position on the Relation of Customary 
International Law to the 1977 Protocols Additional to the 1949 Geneva 
Conventions, reprinted in The Sixth Annual American Red Cross-
Washington College of Law Conference on International Humanitarian Law: 
A Workshop on Customary International Law and the 1977 Protocols 
Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 
415, 425-6 (1987). Article 75 provides that ''persons who are in the 
power of a Party to the conflict and who do not benefit from more 
favourable treatment under the Conventions'' ``shall be treated 
humanely in all circumstances'' and that each State Party ``shall 
respect the person, honour, convictions and religious practices of all 
such persons.'' Paragraph 2 of Article 75 prohibits, ``at any time and 
in any place whatsoever, whether committed by civilian or military 
agents'': ``violence to the life, health, or physical or mental well-
being of persons, in particular . . . torture of all kinds, whether 
physical or mental,'' ``corporal punishment,'' and ``mutilation''; 
``outrages upon personal dignity, in particular humiliating and 
degrading treatment . . . and any form of indecent assault''; and 
``threats to commit any of the foregoing acts.''
    The U.S. rejection of Additional Protocol I was explained in a 
presidential note to the Senate as follows: ``Protocol I . . . would 
grant combatant status to irregular forces even if they do not satisfy 
the traditional requirements to distinguish themselves from the 
civilian population and otherwise comply with the laws of war. This 
would endanger civilians among whom terrorists and other irregulars 
attempt to conceal themselves. These problems are so fundamental in 
character that they cannot be remedied through reservations. . . .'' 
See 1977 U.S.T. LEXIS 465. It is time for Congress to look at the 
standards set by and relied upon by other civilized nations and to 
provide that the United States will abide by the highest standards for 
treatment of prisoners.

                             VI. CONCLUSION

    In this testimony, I have had the chance to address use of military 
commissions, detention of enemy combatants and treatment of detainees 
in United States custody. I urge Congress to raise its voice as to 
these issues. The executive has had little congressional guidance in 
its efforts to deal with terrorism. Congress shares authority with the 
executive when it comes to wars of all sorts, and it is time for 
Congress to exercise its authority in cooperation and consultation with 
the executive. It is not easy to fight any war, and the war on terror 
poses unique challenges. We struggle to arrive at appropriate responses 
to the challenges, and it is not surprising that we may make missteps 
or falter from time to time. But, we do not struggle alone. Terrorism 
has stricken Spain, England and other countries in addition to the 
United States. The international community must fight the battle 
together, and the United States must be a leader. To lead effectively, 
however, we need to show the power of our ideas and our principles as 
well as the power of our guns. We do this best when Congress is 
actively involved with the executive setting standards for the United 
States of which we and the world can be proud and holding us true to 
them.
    Thank you.

   STATEMENT OF JOHN D. HUTSON, PRESIDENT AND DEAN, FRANKLIN 
                       PIERCE LAW CENTER

    Mr. Hutson. Thank you, Mr. Chairman. Thank you for the 
opportunity to address the committee. I'll do what my 
colleagues have done and ask that my written statement be made 
a part of the record and try to bounce off what has already 
been said by colleagues here in this panel and also earlier 
today in the first panel.
    I think we have a serious problem and you have the 
opportunity to fix it if you care to take it. I would agree 
that it is incumbent upon Congress to take this opportunity in 
its oversight capacity. If there is one thing that's come out 
clearly in the hearing today, the hearing yesterday and in the 
lead up to all of this, it is confusion. I'd go back to the 
word that you used at the very beginning, Mr. Chairman. I will 
bet that if you ask the Attorney General of the United States 
and Secretary Rumsfeld and Chairman of the Joint Chiefs and the 
judge advocates general and all the senior people who have 
worked on this issue to write down what their definition of a 
combatant is, what they think the rules are that apply, to whom 
they apply, where they apply, when they apply, you would come 
up with as many different answers as you would ask the 
question. If those people can't write it down, if they don't 
understand it clearly, you surely can't expect the colonels and 
the captains and the staff sergeants to understand that. If you 
can't expect the staff sergeants to understand it, you're going 
to have the kind of problems that we have seen.
    Whatever it is we do, it has to be foolproof. We have to 
keep it simple. We are talking about these issues in terms of 
legal niceties and that's fine for law school, that's fine for 
seasoned lawyers to try to do; it doesn't work on the 
battlefield. The other thing about the legality issues here, is 
I think that in many respects, it misses the more important 
issues.
    I like to think of the United States as being above the 
law. Above the law in a sense that the law provides the floor. 
The law provides, and we are in the basement at this point in 
many respects, but the law provides the floor, and the United 
States should be above that. We should be considering these 
things not so much from a legal point of view as from a moral 
point of view, a diplomatic point of view, what is right 
militarily, what is right practically, what makes common sense, 
what is going to work not only in this war but in the next war 
and the war after that, because right now we are looking at it 
in a very shortsighted way. We are trying to deal with the very 
narrow immediate issue and not doing that very well, and we 
have completely lost sight of what is over the horizon. I think 
that's why the JAGs had a different point of view than the 
political appointees because the policymakers were looking 
immediately, the JAGs were looking over the horizon and trying 
to figure out what is going to be best for the United States, 
which is more forward deployed, past, frequent and future, than 
all other countries combined in terms of numbers of troops 
deployed, numbers of deployments and locations of the 
deployments.
    We are the ones who are running the risks here. It protects 
U.S. troops now and in the future for us to come to some sort 
of understanding about what the rules are going to be. Parsing 
the convention against torture and the Geneva Conventions and 
your points about how you identify the Taliban and al Qaeda 
were right on the mark, Senator. It just don't work. It's 
absolutely necessary that we straighten this out. What we need 
to say is they may be terrorists, they may be evildoers, but 
they are human beings and we are Americans and we will treat 
them with the dignity and respect that Americans should always 
treat human beings, simply by virtue of their humanity.
    Then in doing that, we can fix the military commission 
process. I was an early and ardent and vocal supporter of 
military commissions. I think they can be fixed. We can fix the 
interrogation policy, we can enact the Army field manual so 
that it applies to every person, every place, in every 
interrogation. We can do the things that are necessary for 
history, when they write the chapter, treatment of detainees in 
the book on the war on terrorism, the end of the chapter will 
be better than the beginning of the chapter. Thank you, Mr. 
Chairman. I look forward to your questions.
    [The prepared statement of Mr. Hutson follows:]

                  Prepared Statement by John D. Hutson

    When historians write the book on the war on terrorism, there will 
be a chapter entitled ``Treatment of Detainees.'' The first part of 
that chapter has already been written and it's not pretty. We don't yet 
know how that chapter will end. Fortunately, we have the opportunity--
you have the opportunity--to write that ending.
    At first blush, the issues are primarily legal in nature. Some have 
already been litigated and decided by courts. I believe that while the 
issues are legal in the first analysis, there are other ways to 
consider them, that in the end, are even more profound--moral, 
diplomatic, military and practical aspects must be considered. The 
legal analysis provides the floor, but the United States should strive 
for higher aspirations.
    I want to make three points today. The first is to call for a limit 
on the duration of detention. The second is to urge that we either fix 
military commissions or use courts-martial to prosecute detainees. 
Finally, that we enact the provisions of the Army Field Manual relating 
to interrogation into law.
    We have a very difficult problem with regard to the duration of the 
detention of those whom we have captured or who otherwise have been 
turned over to coalition forces. As has been often noted, this war 
won't end soon, and we may not even know when it's over. It likely will 
simply peter out someday and the end will be marked only by the passage 
of time. This uncertainty is exacerbated by the nature of the enemy. As 
has also been noted, he doesn't wear a uniform and isn't necessarily 
part of an army organized in a familiar manner. He is half civilian and 
half military and moves stealthily between those two worlds. He is not 
easy to identify. The flip side of this confusion is that true 
civilians can also be easily mistaken for enemy combatants.
    This conundrum creates problems for detention policy. I believe we 
should place a reasonable time limit on the duration of confinement 
without a trial. If the war lasts 5, 10, or 20 years, we simply can't 
confine people for that long without a resolution to their confinement, 
especially if we aren't absolutely sure of their status. We haven't 
done that in prior wars, and we mustn't do it now in this war. 
Throughout history, the law of war has moved inexorably towards a 
higher level of civility. We can't be the Nation to take a step 
backwards.
    At the end of that reasonable length of confinement, if they have 
not been prosecuted, they must be released to their country of origin 
absent a showing by the government that their continued detention is 
imperative. That showing could be based on their continued intelligence 
value or because of demonstrated threat to the security of the United 
States or our allies.
    The government would bear a heavy burden. It would have to meet a 
high standard. A burden of proof such as beyond a reasonable doubt or, 
perhaps, by clear and convincing evidence, would have to be met. That 
standard would have to be achieved by articulable, specific evidence. 
Conjecture, opinion, rumor, or over-caution would not suffice.
    I'm not sure about the forum. U.S. District Court or a specifically 
designated panel of jurists would work. There may be other 
alternatives. Whatever the duration of confinement, burden of proof, 
admissibility of evidence or forum, they must all be reasonably 
acceptable to the international community. If they are not, history 
will not be kind to us.
    Now, turning to the prosecutions themselves. I was an early, 
ardent, and vocal supporter of military commissions as the appropriate 
forum. I still believe they can be fair, legal, and generally accepted 
by all but the most persistent naysayers. If done properly, they are 
historically founded, practical, and make sense. It is appropriate for 
military personnel to try their enemy by military commissions.
    All of that said, although I don't necessarily agree with it, I 
understand the point of view of the critics who say that the commission 
process is now so flawed and maligned that we should simply start over. 
I should add, not quite as a parenthetical, that as a former Navy judge 
advocate for 28 years, I am pleased and proud, but not surprised by the 
strong advocacy of detailed military defense counsel in these cases. 
These are not popular cases, but they have served admirably.
    For the success and viability of commissions, the devil is in the 
details. They aren't legal, they aren't appropriate, and they aren't 
practical, if they are done badly. They have to be accomplished 
reasonably promptly. The defense counsel must have reasonable access to 
their clients. Defense counsel must be able to confer with their 
clients in confidence. There must be a just review process. In summary, 
they must be fair and be perceived to be fair.
    The Geneva Conventions require that military commissions 
approximate the same procedures by which we prosecute our own troops. 
That implicates the courts-martial system contained in the Uniform Code 
of Military Justice (UCMJ) and the Manual for Courts-Martial.
    Consistency is a virtue, but it can also be the hobgoblin of small 
minds. We're the United States of America. If we decide in our might 
and wisdom that we need to make a course correction, we can do that. 
Knowing what we now know, perhaps we might decide to use the UCMJ and 
MCM for prosecuting enemy combatants. It's a tried and true system. All 
we really would need to do is relax the rules of evidence a bit to 
accommodate the reality of battlefield operations, understanding that 
evidence is being gathered by soldiers, not police detectives.
    Finally, let me speak briefly about interrogation policy. We are 
all patriots here. We wouldn't be here if we weren't. I don't mean to 
preach but some of these things can't be said too often. I like to 
think of America as being above the law. By that I mean that the law 
provides a floor below which no nation may descend. But the United 
States . . . the United States should soar above that. The law says we 
can't torture people. The law says we can't treat them cruelly, or 
inhumanely, or degrade them.
    I say they may be terrorists, they may be evil, but they are human 
beings and we're Americans and we should treat them with the dignity 
and respect that Americans should always treat all human beings by 
virtue of their humanity. I urge you to put the Army Field Manual into 
law for all U.S. agencies.
    I understand and appreciate the need for the enemy to not know the 
limits of interrogation techniques. On the other hand, and more 
importantly, Americans and the community of nations must have 
confidence that we won't abuse people in our custody no matter what 
their status.
    Our greatest strength as a nation is not our military might, 
awesome as it is; it's not our strong economy, natural resources or 
even our historic individual spirit. Our greatest strength is the 
rightness of our cause. For generations, Americans have stood tall for 
the Rule of Law and in support of human rights. That's our strength; 
that's why other civilized nations look to us for leadership and then 
follow that lead. If we lose that, we will have lost our greatest 
weapon.
    On the other hand, the enemy's only weapon is terrorism. The true 
object of that weapon isn't so much human life or undermining our will 
to resist, as much as it is an effort to make us more like them. We 
must resist that at all costs. If we let that happen we will have lost 
the war. We will have lost our National identity. We must not take that 
fateful step down the slippery slope from the high road to the low 
road.
    The Army Field Manual stands as a bulwark against that temptation. 
By enacting into law the interrogation techniques found in the current 
Army Field Manual for all U.S. interrogators, we will take a huge step 
in the right direction. It won't make us weaker, it will confirm our 
power for all to see and protect U.S. troops now and in the future.
    As I stated early in this testimony, the important issues are 
legal, to be sure. But they are more than that. They have profound 
moral, diplomatic, military, and practical implications. How we are 
viewed by history and the community of nations, how we feel about 
ourselves, and how history treats us may in large part be determined by 
what you do, or don't do, now.
    In summary, I urge you to place a reasonable limit on the duration 
of detention for enemy combatants absent a specific showing for the 
need for continued confinement. I urge you to either fix the Military 
Commission process or ensure cases are referred to the equivalent of 
courts-martial. Finally, I urge you to enact the Army Field Manual for 
all interrogations, regardless of location, the interrogator, or who is 
being interrogated.

    Senator Graham. Excellent, each of you. Thank you very 
much. Now, I know why I didn't get a more definite answer to 
the question would statutory definitions have a preferred 
position in the court than the current situation. Because there 
is a political component to this. Mr. Barr, I know that every 
executive branch legal advisor and every representative of the 
executive branch is very cautious about ceding authority, 
particularly when it comes to matters of war, and I don't think 
anyone up here wants to micromanage this war. But it is unique 
and it has taken us to a place far beyond six saboteurs in 
World War II.
    I have to completely buy into the idea that enemy combatant 
status with an indeterminate amount of time is a legally 
correct position, and will enhance our national security. The 
problem I have is that the enemy combatant status that we are 
currently using is in court, being challenged, with a never-
ending process ahead. But it goes back to what you said, Mr. 
Hutson. We'll be stronger if we are together, and I do believe 
there is a willingness of Congress and I may be wrong, it may 
fall apart, for all of us to come together working with the 
executive branch to define enemy combatant status in the most 
flexible way possible, but give it a congressional blessing.
    Mr. Barr, do you believe that if we did that we would be 
stronger legally and be more united as a country?
    Mr. Barr. In general, when Congress supports executive 
power and they're acting together, that does strengthen the 
hand of the Government, obviously, but as I said earlier the 
definition of military combatant is not the issue. The thing 
that's going to cause problems is the extension of habeas 
corpus to foreign prisoners of war. I believe American citizens 
should be treated differently and I believe that they do have 
the right of habeas corpus.
    Senator Graham. Statutorily could we address that problem 
and fix it?
    Mr. Barr. Yes. That' s what Scalia was talking about.
    Senator Graham. That's what he's yelling at us to do.
    Mr. Barr. The first time in history, Under British habeas 
corpus, the idea of using a writ of habeas corpus for a foreign 
prisoner of war was an absurdity, and it was never recognized. 
But the Supreme Court here said well, this statute sort of 
makes us do it. That's an area that I think should be 
addressed.
    The second issue that's going to cause difficulty no matter 
how these definitions are made is whether or not the court is 
going to say for the first time in history that a foreign 
person outside the United States who has no connection with the 
United States other than they are confronted by our troops, has 
due process rights. That is contrary to the existing law and if 
they go that far, then no matter how we define these terms it's 
going to mean judges supervising this thing. Now the fact that 
one district court judge doesn't like the definition of 
military combatant, to me is irrelevant. There are so many 
district court judges now you can get anyone to say anything. I 
think the D.C. Circuit is going to rule on that, and I think it 
will be straightened out.
    Senator Graham. The bottom line, the habeas route, we are 
going into a situation where courts will have a great say about 
how to fight this war. Scalia is saying we are ill equipped to 
do that, would you please get involved and help us, Congress? 
That's what this is all about. The invitation is out there to 
the administration. I hope they will take us up on it because I 
believe, as Senator McCain has stated, that we have an 
affirmative duty to do so.
    Now, when it comes to military tribunals, clearly everybody 
in the panel has bought off on this. Critics of military 
tribunals have their right to be critical, but there is a rich 
legal history that the military tribunal system works and is an 
acceptable manner of delivering justice. Do you believe that if 
the military tribunal system were codified, it would be an 
advantageous position for that system in our current Federal 
court system?
    Mr. Barr. First, I believe military commissions as opposed 
to court-martials are common law courts that exist because they 
are supposed to be adaptive to the exigencies of the 
circumstance. That's why I think inherently they have to be 
flexible tools. So I would be concerned about anything that 
tries to lock in a particular set of rules.
    Could I give one example? After a war, after we have won, 
it may be one thing to show classified information or provide 
for a right to confront all of the evidence against you, 
because we've won the war. We don't care if Speer finds out 
something about our military plans. But right now we are in the 
middle of this confrontation, and allowing people to see 
classified information is something we shouldn't accept.
    Senator Graham. All due respect, we have a military legal 
system, the UCMJ, which is statutory, and we have the Manual 
for Courts-Martial which is the implementing directive of the 
executive branch.
    We deal with classified information in court martial 
proceedings all the time. I don't think that's a problem 
because no one here wants to use the military tribunal 
commission system to hurt the Nation's security.
    All I'm suggesting is that the current attacks on the 
military commission that are now in court are never ending. One 
way to bring closure would be to give a statutory blessing to 
the concept, tweak it a bit. My question again is would that 
help in terms of the status of the military commission legally 
with Congress getting involved?
    Mr. Barr. Well, I think you might be in a situation where 
judges might accept it more. But I don't think the executive 
would, unless it allowed the discretion to adapt proceedings to 
specific circumstances.
    Again, the court martial system that we have applies to 
American troops, people that are part of our political 
community, and I have no problem with those procedures. But 
providing all the same protections to a member of a hostile 
force during the confrontation, it's just----
    Senator Graham. I'll take another stab at this. I 
understand what you're saying. But the current system is going 
to be in litigation for a while to come. General Hemingway gave 
a best case scenario. I think we're going to be months or years 
before we get this thing figured out about enemy combatant 
status. We're going to have a lot of judges speaking about what 
they like and don't like about military tribunals.
    I'd like to close that down, come up with a system that is 
not a threat to the country, is not a Federal court system, is 
not UCMJ, but a hybrid that deals with realities of the war on 
terrorism. But it's codified, that will be more deferred to by 
the courts and we'll have two branchs of government, as you 
said. That's my goal.
    I'm going to now turn it over to Senator Nelson, but you 
have been very helpful. The idea, I'll put this on the record, 
I have crossed the Rubicon in this regard. I do not believe it 
is responsible for this country, legally or politically, for 
Congress to sit this out. If we can come up with congressional 
involvement that makes it stronger, not weaker, that allows us 
to get good intelligence, it allows us to detain people who 
deserve to be detained for an indeterminate period of time, and 
allows people to be prosecuted in a way where it will stick.
    The way to have that legal breakthrough occur soon rather 
than later is for Congress to get involved.
    Senator McCain.
    Senator McCain. I thank you, Mr. Chairman. Very briefly and 
I appreciate you allowing me just to comment. Mr. Barr and Mr. 
Saltzburg, Mr. Hutson has suggested that the Army field manual 
apply to all detainees, is that correct?
    Mr. Hutson. Yes, it is.
    Senator McCain. Do you agree with that, Mr. Saltzburg?
    Mr. Saltzburg. I think so.
    Senator McCain. How about you, Mr. Barr?
    Mr. Barr. I agree that we are bound to treat all detainees 
humanely.
    Senator McCain. Please, Mr. Barr----
    Mr. Barr. Which as I understand----
    Senator McCain. If you say you don't want to answer the 
question, that's fine.
    Mr. Barr. No, that's not what I'm saying.
    Senator McCain. The question is, should the Army field 
manual apply to all detainees or not?
    Mr. Barr. Well, no, the Army field manual applies to people 
that are covered by the--given the privileges of the Third 
Geneva Convention, no. To the extent that it says that all 
detainees should be treated humanely, even if they're not 
covered by the Third Convention, I agree with that too.
    Senator McCain. Because you feel that part of the 
Constitution has become irrelevant as far as Congress is 
concerned is not something that I agree with. It still says 
make rules concerning captures on land and water. Until we 
amend the Constitution because of its irrelevancy, I will use 
that as a reason for Congressional involvement.
    I guess my only other question, Mr. Hutson, you were one of 
the uniformed JAGs at the time that the initial set of rules 
were formulated, isn't that correct, which were later 
rescinded?
    Mr. Hutson. No, sir. I retired in 2000. I preceded that.
    Senator McCain. It was my understanding that the uniformed 
JAGs disagreed as, I think, Mr. Saltzburg mentioned in his 
opening comments. All the uniformed people disagreed with the 
civilian policy that was articulated, that was put into effect, 
is that correct, do you know?
    Mr. Hutson. I can't say that all of the uniformed people 
did, but I know that there was a great deal of disagreement 
between the two groups indeed. In fact, the uniformed people 
were struggling to find avenues to vent their disagreements.
    Senator McCain. I thank you. Mr. Saltzburg, it's a small 
point, but many of our American soldiers in Afghanistan that 
were fighting there were not wearing a uniform. So according to 
at least some interpretation of the treatment of these 
prisoners because they were not wearing a uniform then 
therefore they are not eligible for the Geneva Conventions. So 
I just say that as an aside.
    I, like you, am very concerned about the next conflict in 
which American fighting men and women may become captive. Right 
now, I think it would be difficult for us to assert as we did 
vociferously--and by the way, Mr. Barr, we are still at war in 
Korea, there was a cease-fire, but we are still at war.
    Mr. Barr. Cease-fire means you're not still at war.
    Senator McCain. Yes, we are, in a state of war.
    Mr. Barr. But I disagree with you that we have soldiers in 
our military fighting out of uniform in Afghanistan.
    Senator McCain. You disagree we have soldiers fighting out 
of uniform in Afghanistan.
    Mr. Barr. I think there may be intelligence operatives who 
are operating who are not wearing military uniforms, yes.
    Senator McCain. That's Special Forces. Wrong again. I'm 
sorry. Well, anyway. But I guess my point is that without the 
kinds of behavior that you articulate, Mr. Saltzburg, I'm 
afraid that it would give our enemies some excuses which they 
may or may not have had anyway to mistreat our American 
fighting men and women when they fall prey to them.
    Again, we are still in a war in Korea, it's a cease-fire. 
If we are going to use that criteria, then I think many of our 
detainees would die of old age. I thank you, Mr. Chairman.
    Senator Ben Nelson. Thank you, Mr. Chairman. Admiral 
Hutson, I think you probably heard the distinction between how 
we might deal with prisoners or detainees in Iraq and those 
that are taken just in the general war on terrorism.
    In trying to deal with status and treatment, the question 
of duration of detention is significant. Obviously, I think we 
must deal with that. Is there any clarification that you might 
be able to provide for us on that?
    Mr. Hutson. I'm not sure I can clarify it. I would urge 
Congress and the administration to consider putting a 
termination on the duration of detention for most of the 
prisoners. I think that it's just not possible for the United 
States to hold people, and we are not talking about Speer or 
Hess particularly, we are talking about chauffeurs and people 
like that, indefinitely.
    The war on terrorism is going to go on, as we have all 
agreed, and we all understand, for a long time. At some point, 
it's just going to sort of peter out and will end by the 
passage of time. There is going to be no surrender on the deck 
of the U.S.S. Missouri in the war on terrorism.
    So that I think we have to decide how long we can 
reasonably detain people, if no charges have been brought. We 
have not prosecuted them. We are just holding on to them until 
the end of the war as Senator McCain points out. I think you 
have to have an out. I think that the administration has to be 
able to demonstrate that the continued detention of a 
particular individual is necessary because of the great 
intelligence value that they may continue to have or because 
they continued to be a threat to the United States or to our 
allies.
    But that determination has to meet some sort of standard. I 
think that there are a number of ways you could do it, and the 
tribunal would certainly be one. A specially designated panel 
of judges. But there would have to be a standard. There would 
have to be evidence. It couldn't just be conjecture, rumor, 
innuendo, or over caution.
    Senator Ben Nelson. But there is some value in detaining 
these individuals for some significant period of time if they 
represent a particular threat, if by releasing them they go 
back to do battle against us or to do further harm, or if they 
represent a fundamentally important part of our intelligence 
gathering operation as an important source for intelligence 
information.
    Mr. Hutson. I couldn't agree more, Senator, that it would 
be incumbent upon us to continue to detain for as long as 
necessary people that fit into those categories that you 
enumerate. But that for a large number of people, I think I 
understood the testimony earlier today to be that the annual 
review boards had released four people. We have 13,000 
detainees involved around the world right now.
    We can't just hold them until 25 years from now we say, oh 
yes, remember the war on terrorism, I guess it's over.
    Senator Ben Nelson. What would you do with those detainees 
if their country of citizenship doesn't want them back? What do 
we do there?
    Mr. Hutson. Good question.
    Senator Ben Nelson. I thank you very much for your 
enlightenment. I think you're helping us go down the road to 
progress here, and we appreciate it very much.
    Senator Graham. I want to thank you all. I just want to 
wrap this up quickly. The current legal environment we have is 
we are on appeal now, I think the Court of Appeals, regarding 
the military tribunal system, that is correct?
    Mr. Barr. Yes, Senator, Hamdi, which was a chauffeur.
    Senator Graham. You were right about Hess. We didn't 
prosecute him until after the war. But I think this is a 
different war. I think it is very important that this country 
send a signal to all wannabe terrorists, you are either going 
to get killed, or you are going to get captured, and be held 
accountable.
    The quicker we get on with holding people accountable, I 
think the safer we'll be. Mr. Barr, worst case scenario, or 
best case scenario, how long do you think it will take the 
current legal situation to resolve itself regarding 
prosecution?
    Mr. Barr. I think probably within a year we will be able to 
complete the first prosecution. If I could, Senator, that last 
line of questioning from Senator Nelson, as you recognize in 
your opening statement, there are two different issues here.
    One issue is detaining someone, not punishing them, but 
just detaining them. The other issue is trying those people 
that we want to try before a commission for war crimes.
    I agree with what you said about let's get on with that. 
But on the issue of detention, we shouldn't act as if there is 
not a process in place. For the first time in history, we are 
permitting adversary proceedings, legal representatives, a 
preponderance of the evidence standard for these people to have 
their day in court to be held. That's never been done before 
and that's a recognition of the kind of war we are fighting.
    Senator Graham. I'll be honest with you. I don't have a 
desire to fundamentally change things. I just want to get a 
statutory blessing to it, tweak it to make sure it does pass 
scrutiny. There will be some people who are not subject to 
prosecution for different reasons. Maybe you don't want to go 
through the exposure of a trial, maybe it's not exactly the 
venue for them. They should be kept for a long time, Mr. 
Hutson, because this war will go on for a long time.
    But the due process involved is the check and balance. An 
enemy combatant legally can be held, I think, for an 
indeterminate period. Now, that decision has to be made in 
accordance with who we are as a people, and it has to be made 
in light of the fact that we are a rule of law nation.
    I stand very firmly with the idea that holding enemy 
combatants for a long period of time is in this Nation's 
national self-interest. I just hope we can make the process 
more acceptable to our legal system and abroad. What about you, 
Mr. Saltzburg?
    Mr. Saltzburg. I actually think that if you enacted 
legislation, you would moot the Hamdi case.
    Senator Graham. I totally agree----
    Mr. Saltzburg. Otherwise, I think it's fairly likely that 
the Supreme Court would grant review. I mean, one of the things 
we should not lose sight of is that Hamdi was closely divided 
with a plurality plus two, the author of the plurality opinion 
has resigned or announced her resignation from the Court. We'll 
go through a replacement process. We know the Chief Justice is 
ill. We don't know what will happen. He was part of the 
plurality.
    So that if you ask what the end result will be, even after 
a year is up, I agree with Attorney General Barr, a year may be 
a good estimate. Sometimes the Supreme Court gives us less 
certainty after it decides than before, which is part of the 
problem. I think Hamdi's an example.
    I'd just like to say one other thing if I could. That is, 
Senator Graham, you mentioned the third part of what we are 
really after here, the hearts and minds.
    Senator Graham. That's very important.
    Mr. Saltzburg. I would really urge the subcommittee and I'd 
urge the committee not to treat the decision about what 
processes are due and so on solely based on how the United 
States looks at this right now.
    We are not in this alone. What happened a week ago in 
London reminds us that this al Qaeda threat, this terrorist 
threat, is not just against us, we are just the biggest target. 
It's against everything we stand for, and everything that 
western democracies believe in. I think this picks up Senator 
Nelson's question, it's a very serious matter of saying if we 
are going to release somebody, where?
    I mean, the world has to look at this together; we need to 
know what our allies think about how long somebody should be 
detained, because they don't want us to be releasing these 
people. Then if we're going to release them, how? How is it to 
be done? I think some input from allies who are just as 
concerned as this country is, and they have reason to be, would 
actually benefit our thinking.
    I don't think, by the way, you'd find them less supportive. 
I think you'd find that the shared concerns you've heard today 
are shared not just within our borders but they are shared 
around the world. I think we haven't reached out enough.
    That's been part of our problem. That we, in winning the 
hearts and minds, we have to win the hearts and minds of the 
American people and persuade them that we're true to our own 
values. Because of some of the mistakes that have been made, 
because of Abu Ghraib, we have to do a better job of convincing 
the world--that the standards that Dean Hutson said--that we 
are still committed to the highest standards, and that we are 
still the leader.
    I think some contributions from some other countries that 
share problems with us about how we ought to go would probably 
not be a bad thing for this committee to really consider.
    Senator Graham. That's very well said. If you could get the 
executive, legislative, and judicial branches signing off on 
what is going on at Guantanamo Bay, and making it a very good 
place to detain people, to keep them off the battlefield, a 
place to get good intelligence, be aggressive, a place to 
prosecute the worst of the bunch, I think we are safer. I think 
it does change world opinion of that.
    What is your belief, Mr. Hutson, about how long it will be 
before we get legal answers to these questions?
    Mr. Hutson. Predicting judicial speed is very dangerous. 
That's almost as bad as predicting what the jury's going to do. 
But I think that a year or 2, probably, depending on what the 
Supreme Court does or doesn't do.
    Senator Graham. Well, I will be working as diligently as I 
can with other members of the committee to come up with some 
statutory definitions that meet, I think, most of your goals, 
Mr. Barr. We may have a philosophical difference about how to 
do this, but your concerns are legitimate. We need not have 
statutes that lock us down. We need to have statutes that free 
us up, and let us really get on with fighting this war in the 
most effective way.
    I think Guantanamo Bay's potential is not being reached 
from a national security perspective. I think we could do more 
with the place if we had more buy into it. I really do worry, 
gentlemen, about this war being managed by a series of legal 
decisions from different venues that will create stagnation and 
create image problems and the Court is not equipped to do this. 
I think they are telling us that.
    Some judges will take us up on it, Mr. Barr, they will 
certainly take us up on it. If we are going to fight this war 
the way we need to fight it, the more elected official 
involvement, the better, and God bless. Thank you for coming. 
We will be back with each of you about how to do this. Thanks 
very much.
    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John McCain

                           DETAINEE HEARINGS

    1. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General 
Hemingway, I understand that, of 520 individuals at Guantanamo (Gitmo), 
just 12 have been deemed suitable for military commissions. I 
understand that we have the legal right to detain the rest of them 
until the end of hostilities, but since there is no foreseeable end to 
the war on terrorism, what is the plan for those not receiving a 
hearing before the military commission?
    Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. Although we 
anticipate that a significant number of enemy combatants held at 
Guantanamo will face trial by military commission, many will not. Among 
those who may not be tried by a military commission are individuals who 
are either providing actionable intelligence through interrogations, or 
are still considered a threat to U.S. forces on the battlefield. Some 
of them may not have committed law of war violations or other crimes. 
These individuals will be held until the end of the conflict or until 
they are determined no longer to be a threat to U.S. forces by the 
Designated Civilian Official, acting on a recommendation from an 
Administrative Review Board (ARB).
    The ARBs were established in order to review the case of every 
detainee annually. The ARB assesses whether an enemy combatant should 
be released, transferred, or further detained.
    During the review, each eligible enemy combatant is given the 
opportunity to appear in person before an ARB of three military 
officers and provide information to support his release. The enemy 
combatant is provided with a military officer to assist him. In 
addition to information provided by the enemy combatant, the ARB 
considers written information from the family and national government 
of the enemy combatant and information provided by DOD and other U.S. 
Government agencies. Based on all of the information provided, the ARB 
makes a recommendation to release, transfer, or continue to detain the 
individual.
    The process to release a detainee is completed only after the U.S. 
Government receives appropriate assurances that the receiving 
government will not torture the detainee and will continue to treat the 
detainee humanely, consistent with the country's international legal 
obligations.
    As of March 2006, 267 detainees have been released or transferred 
to their home countries: 187 have been released, and 80 have been 
transferred to the control of other governments (Denmark, Pakistan, 
Morocco, France, Russia, Saudi Arabia, Spain, Sweden, United Kingdom, 
Kuwait, Australia, and Belgium). In regard to Iraqi and Afghan 
nationals, we are working with other U.S. Government agencies to help 
Iraqi and Afghan authorities assume responsibility for detention 
operations in their countries.

                            DETAINEE APPEALS

    2. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General 
Hemingway, under Department of Defense (DOD) rules for military 
commissions, defendants will lack an independent appeal--they can 
appeal up the chain of command within DOD but not to U.S. Federal 
courts or to the U.S. Court of Appeals for the Armed Forces (a civilian 
court independent of the executive branch that handles appeals from the 
courts martial). Could you explain the rationale behind this decision? 
Why not permit an appeal to the U.S. Court of Appeals for the Armed 
Forces? Please explain your answer fully.
    Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. The Review 
Panel process provides for an independent review of the decisions of 
the Military Commission. By design and implementation, the Review Panel 
is composed of senior jurists with impeccable credentials and judicial 
experience. The current group of panel members was specifically chosen 
for their proven track record of making difficult decisions on unique 
and difficult questions of law--the very kinds of questions that they 
will face when deciding Commission questions involving the interplay of 
the law of war, military law, and applicable international law .
    Under the Detainee Treatment Act, the United States Court of 
Appeals for the District of Columbia Circuit has jurisdiction to 
determine the validity of any final decision of a Military Commission. 
Review is required in capital cases and cases in which the defendant is 
sentenced to a term of imprisonment of 10 years or more; in all other 
cases, review is at the discretion of the Court. The jurisdiction of 
the Court is limited to the consideration of (i) whether the final 
decision was consistent with the standards and procedures specified in 
the Military Commission Order No.1, and (ii) to the extent the 
Constitution and laws of the United States are applicable, whether the 
use of such standards and procedures to reach the final decision was 
consistent with the Constitution and laws of the United States.
    The Court of Appeals for the Armed Forces is an Article I appellate 
court with jurisdiction limited to certain courts-martial cases with 
significant sentences. See Clinton v. Goldsmith, 526 U.S. 529, 540 
(1999). Expanding the Court of Appeals for the Armed Forces' 
jurisdiction to include military commissions would blur important 
distinctions between courts-martial and military commissions.
    The independence of military commissions and courts-martial is 
protected primarily by Article 37, UCMJ, 10 U.S.C. Sec. 837, which 
prohibits unlawful command influence with respect to courts-martial and 
other tribunals, such as military commissions. Violations of Article 
37, UCMJ, are punishable under Article 98, 10 U.S.C. Sec. 898, by up to 
5 years of confinement and a dishonorable discharge. See Weiss v. 
United States, 510 U.S. 163 (1994).
    The military commission process was established by the President 
pursuant to the authority granted to him under the Constitution and the 
Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 
224. The decision on who is subject to trial by commission, the rules 
that govern the commissions, and the procedures for review of 
commission decisions are an executive branch function performed 
pursuant to this authority.

                    UNIFORM CODE OF MILITARY JUSTICE

    3. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General 
Hemingway, the Pentagon made a decision to start from scratch and 
develop an entirely new system of military commissions, one that has 
run afoul of the U.S. court system. One effect of this has been that we 
have yet to bring even one terrorist to trial, nearly 4 years after 
September 11. Would it not be simpler, easier, and better to use the 
Uniform Code of Military Justice (UCMJ)?
    Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. On November 
13, 2001, the President directed the establishment of military 
commissions to conduct criminal trials of those suspected of having 
committed war crimes. It would not be simpler, easier, or better to use 
the court-martial process authorized by the HCMJ. Rather, as the 
President directed, military commissions, as recognized by the UCMJ, 
provide the appropriate forum for the disposition of the allegations of 
war crimes committed by enemy combatants arising from the Global War on 
Terrorism. There are many provisions of the UCMJ applicable to courts-
martial that would be inappropriate or unacceptable to apply in 
military commission trials of detainees at Guantanamo Bay, Cuba, 
including, but not limited to, the speedy trial provision (Article 10), 
the criminal rights warning requirements (Article 31(b), the extensive 
pretrial investigation hearing process (Article 32), equal opportunity 
to obtain witnesses and evidence regardless of any pertinent security 
classifications (Article 46), and extensive post-trial review and 
appeal procedures (Articles 59-76).
    Additionally, many UCMJ provisions have been interpreted by 
military and Federal courts to apply, with some exceptions, the full 
range of protections afforded persons under the Constitution of the 
United States. Such U.S. Constitutional safeguards should not be 
extended to the trials of enemy alien combatants for violations of the 
law of war.
    Finally, the UCMJ (Article 36) provides for the use of rules of 
evidence in courts-martial that, so far as the President determines 
practicable, apply the principles of law and rules of evidence 
generally used in criminal trials in United States district courts. 
Courts-martial use Military Rules of Evidence that are modeled after 
the Federal Rules of Evidence. Both of these sets of evidentiary rules 
would have to be modified significantly for use in military 
commissions. For example, these rules do not permit the admission of 
hearsay evidence, unless an exception to the hearsay rule exists. 
Therefore, they do not address adequately the unique challenges 
presented by a battlefield environment that is fundamentally different 
from the traditional law enforcement rubric applicable during peacetime 
in the United States.
    Throughout American military history, hearsay evidence has been 
admissible in military commissions. In the Seminole War, hearsay 
evidence was admitted in military commissions to try British subjects 
for inciting and aiding the Creek Indians in warring against the United 
States. See Louis Fisher, Congressional Research Service, Military 
Tribunals: Historical Patterns and Lessons, 8-11 (2004).
    During the Civil War, a military commission admitted hearsay 
evidence in the trial of Captain Henry Wirz for the atrocities 
committed against Union prisoners of war at the. Andersonville prison. 
Lewis Laska & James Smith, ``Hell and the Devil'': Andersonville and 
the Trial of Captain Henry Wirz, C.S.A., 1865, 68 MIL. L. Rev. 77, 118 
& n.128 (1975) (e.g., a witness who did not observe an alleged murder 
was permitted to testify that he heard another individual identify 
Captain Win as the gunman).
    During World War II, hearsay evidence was admitted in the military 
commission. that tried Japanese General Yamashita for war crimes 
committed while defending the Philippine Islands. See In re Yamashita, 
327 U.S. 1, 18-19 (1946). Similarly, the military commission that tried 
Japanese General Homma for war crimes related to the infamous Bataan 
Death March considered hearsay evidence. Major William H. Parks, 
Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 75 (1973); In 
re Homma, 327 U.S. 759, 760-61 & n.1 (1946).
    Internationally, it is well settled in the International Criminal 
Tribunals for the Former Yugoslavia and Rwanda (ICTY/ICTR) that hearsay 
evidence is admissible. Rules 89(c) and 89(d) of the ICTY Rules of 
Procedure and Evidence (RPE), read together, provide guidelines for 
admissibility of evidence based on relevance and probativeness, subject 
to exclusion to ensure a fair trial. The ICTR has adopted similar 
provisions. See ICTR RPE 89 and 92.
    In addition, the rules of evidence in courts-martial do not 
currently provide for the consideration of classified evidence by the 
finder of fact unless the defendant is also provided access to that 
classified evidence. See the Classified Information Procedures Act, 18 
U.S.C. Appendix III, Sec. Sec. 1-16, and Military Rule of Evidence 505. 
These procedures work well when the defendant already has a security 
clearance, which has historically been true in criminal prosecutions 
concerning classified information. However, the procedures used in 
Article III courts and courts-martial are problematic when the 
defendant does not have a security clearance and does not qualify for 
one under security clearance procedures. Disclosure of classified 
information concerning sensitive intelligence sources and methods or 
military operational procedures would compromise that classified 
information and potentially endanger the lives of members of the U.S. 
Armed Forces engaged in the global war on terrorism. Trial before the 
conclusion of hostilities creates security concerns not present in 
prosecutions after the end of a conflict.

    4. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General 
Hemingway, we have a world class system of military justice, one that 
is adapted for dealing with classified information, for trials that do 
not take place in the bright lights of the media. Precisely what is it 
about that system that makes it unusable here? Please explain your 
answer fully.
    Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. The rules 
of evidence in courts-martial do not currently provide for the 
consideration of classified evidence by the finder of fact unless the 
defendant is also provided access to that classified evidence. See the 
Classified Information Procedures Act, 18 U.S.C. Appendix III, 
Sec. Sec. 1-16, and Military Rule of Evidence 505. These procedures 
work well when the defendant already has a security clearance, which 
has historically been true in criminal prosecutions concerning 
classified information. However, the procedures used in Article III 
courts and courts-martial are problematic when the defendant does not 
have a security clearance and does not qualify for one under security 
clearance procedures. Disclosure of classified information concerning 
sensitive intelligence sources and methods or military operational 
procedures would compromise that classified information and potentially 
endanger the lives of members of the U.S. Armed Forces engaged in the 
global war on terrorism. Trial before the conclusion of hostilities 
creates security concerns not present in prosecutions after the end of 
a conflict.

                   APPLICATION OF GENEVA CONVENTIONS

    5. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, General 
Hemingway, and Mr. Hutson, what would have been different at the Gitmo 
detention facility had Secretary Powell's position prevailed--i.e., had 
the administration applied the Geneva Conventions to all detainees 
captured in Afghanistan (as we've done in all past wars), but then, in 
accordance with Geneva, denied the special privileges of prisoner of 
war (POW) status to the al Qaeda prisoners. Under Geneva, we still 
could have detained and interrogated the prisoners for the duration of 
the war against al Qaeda. What did we really gain by choosing not to 
apply the Geneva Conventions? Please explain your answer fully.
    Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. What was 
gained was a determination consistent with the law of war and 
applicable international law that provided the legally correct 
framework for the detention and interrogation of enemy combatants 
detained in the global war on terrorism. Since September 11, 2001, the 
United States and its coalition partners have been engaged in a war 
against al Qaeda, the Taliban, and their affiliates and supporters. 
There is no question that under the law of war, the United States has 
the authority to detain persons who have engaged in unlawful 
belligerence until the cessation of hostilities. The detention policy 
of the U.S. Government, including the responsibilities of the 
Department of Defense, was set forth in the President's Military Order 
of November 13, 2001 enclosed at TAB A.
    The Department of Defense is complying with the guidance issued by 
the President in his February 7, 2002, memorandum.
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    Mr. Hutson. Much of any answer is speculative but one thing is 
certain: We would have maintained the heretofore uninterrupted 
adherence to the Geneva Conventions by the United States since their 
inception in 1949. We also be in a much better position in the future 
to encourage other nations to do so when they may have preferred to 
ignore them, or at least to complain when they don't comply.
    I speculate that the confusion that erupted in Afghanistan and Iraq 
about the applicability of the Geneva would not have occurred. 
Misguidedly, we parsed who was covered and who as not and decreed that 
all terrorists were not covered. Then the war in Iraq morphed into a 
war against terror; a fortiori, the enemy were terrorists and not 
protected. At that point, the consequences became virtually inevitable.

                    scope of army field manual 34-52
    6. Senator McCain. Mr. Barr, in the hearing before the Senate Armed 
Services Committee on July 13, 2005, General Craddock asserted that the 
following interrogation techniques are approved in the Army Field 
Manual on Interrogation 34-52, under the approach called ``Ego Down and 
Futility'':

        - forcing a man to wear a woman's bra and placing underwear on 
        his head;
        - tying a leash to the subject and leading him around the room, 
        forcing him to perform dog tricks;
        - standing naked for several minutes with female interrogators 
        present; and
        - pouring water over their heads.

    Is it your opinion that the field manual authorizes or in some way 
allows these examples to be used during interrogations by Defense 
Department personnel? If it does, or implies that these techniques are 
okay, should the manual be changed? Please fully explain your answer.
    Mr. Barr. As to whether the specific techniques cited are approved 
by the Army Field Manual, I defer to military authorities to interpret 
their own guidelines.
    I would advise against changing the Manual to address specific 
techniques. The Manual should set forth general principles which should 
be applied prudentially in given circumstances. It should not seek to 
become a comprehensive code cast in minute detail.
    While some techniques may never be justifiable, other particular 
techniques might be inappropriate in most circumstances, while 
justifiable in another. For example, in the case of a uniformed enemy, 
conducting war in accordance with the rules of war and held as a 
prisoner of war, I would think the scope of appropriate coercive 
interrogation should be quite narrow. Things may be different if our 
forces capture a terrorist--someone engaged in violating the rules of 
war by concealing himself among innocent civilians for the very purpose 
of slaughtering innocent civilians through surprise attacks. In such a 
case, if a military commander has reason to think that he can extract 
crucial information and save innocent lives by using an interrogation 
technique that involves neither significant pain nor injury, there may 
be more room for leeway.
    More concretely, for example, if we captured Zarqawi's chief of 
operations and found that he had a particular horror of donning woman's 
lingerie (to use the technique mentioned in your question), would it 
really be immoral or improper to exploit that fear if it meant saving 
lives? In this regard, the term ``degrading'' is not self-defining. It 
can mean different things in different contexts. There are some things 
that a teacher might do to a pupil, or a boss to a secretary, or a 
policeman to a suspect, or a fraternity brother to a pledge, that we 
would consider ``degrading''--perhaps even just calling a name; perhaps 
something demeaning or very embarrassing. And yet the same treatment 
might not be troublesome when employed on the battlefield against a 
terrorist captive. In judging what constitutes degrading treatment of 
terrorists captives under interrogation, it seems to me we should not 
apply the same standard we would apply to interactions in the 
classroom, the office, the precinct station, or the frat house.

                        INTERROGATION TECHNIQUES

    7. Senator McCain. General Romig, Admiral McPherson, General 
Sandkuhler, General Rives, and Mr. Hutson, the investigation by 
Lieutenant General Randall M. Schmidt, USA and Brigadier General John 
T. Furlow, USA, into the FBI's allegations of detainee abuse at the 
Gitmo detention facility substantiated several interrogation 
techniques. Does the Army Field Manual 34-52 permit the following 
interrogation techniques which were substantiated by the investigating 
General Officers to have been used as interrogation techniques at 
Gitmo. Please answer yes or no. If longer answers are required, please 
provide additional responses:
    General Romig. Military doctrine is defined as fundamental 
principles by which the military forces or elements thereof guide their 
actions in support of national objectives. Army Field Manuals, such as 
FM 34-52, contain doctrine and training principles with supporting 
tactics, techniques, and/or procedures and describe how the Army and 
its organizations function in terms of missions, organizations, 
personnel, and equipment. Field Manuals are differentiated from Army 
Regulations, which are directives that set forth missions, 
responsibilities, and policies, delegate authority, set objectives, and 
prescribe mandated procedures to ensure uniform compliance with those 
policies.
    It is important to note that the Army Field Manual (Field Manual 
34-52) reinforces ``the stated policy of the U.S. Army that military 
operations will be conducted in accordance with the law of war 
obligations of the U.S.'' In doing so, however, it does not attempt to 
distinguish among the various ``sources'' in applying the interrogation 
doctrine set forth therein. The Army Field Manual lists as possible 
``sources'' civilian internees, insurgents, EPWs, defectors, refugees, 
displaced persons, agents or suspected agents, and other non-U.S. 
personnel, but also makes it clear that all of these personnel ``are 
entitled to PW protection until their precise status has been 
determined by competent authority.'' The policies and procedures for 
making such a determination are not set forth in the Army Field Manual.
    Admiral McPherson. As a preface for answering each of the questions 
below in the context of interrogations, it would be useful first to set 
forth a key portion of the guidance provided by the Army Field Manual 
34-52 (FM). The FM provides the following two tests to determine if a 
contemplated approach or technique would be considered unlawful:

         Given all the surrounding facts and circumstances, 
        would a reasonable person in the place of the person being 
        interrogated believe that his rights, as guaranteed under both 
        international and U.S. law, are being violated or withheld, or 
        will be violated or withheld if he fails to cooperate?
         If your contemplated actions were perpetrated by the 
        enemy against U.S. Prisoners of War, would you believe such 
        actions violated international or U.S. law?

    The FM continues, ``[i]f the answer is yes to either of these 
tests, do not engage in the contemplated action.'' These tests will be 
the foundation for answering all of the committee's questions 
addressing the use of specific activities as interrogation techniques.
    General Sandkuhler. The Army Field Manual 34-52 (FM 34-52) sets 
forth as doctrine a highly protective standard for the interrogation of 
detainees. The Field Manual states: ``The use of force, mental torture, 
threats, insults, or exposure to unpleasant and inhumane treatment of 
any kind is prohibited by law and is neither authorized nor condoned by 
the U.S. Government.'' The field manual also states ``the use of force 
is a poor technique as it yields unreliable results.'' (FM 34-52, Chap. 
1) Therefore, for both humane and operational reasons, it is far better 
for the interrogator to choose those techniques that suit the 
detainee's natural propensities and not those that attempt to overcome 
the will to resist. With these two principles in mind, the answer to 
all of the following questions would generally be ``no.''
    General Rives. Please note the following prefatory comment, which 
is applicable to all answers, that follow. Army Field Manual (FM) 34-52 
explicitly states that it is Army policy that military operations will 
be conducted in accordance with the law of war obligations of the 
United States. It provides doctrinal guidance, techniques, and 
procedures, and it also cautions that limitations on the use of 
expressly prohibited methods should not be confused with psychological 
ploys, verbal trickery, or other nonviolent or noncoercive ruses. The 
Army Field Manual further states that the Geneva Conventions and U.S. 
policy prohibit acts of violence or intimidation, including physical or 
mental torture, threats, insults or exposure to inhumane treatment in 
interrogation. Finally, FM 34-52 advises that great care must be taken 
to avoid threatening or coercing a source as that would be a violation 
of the Geneva Convention on the treatment of enemy prisoners of war, 
Article 17.

    A. Is the use of dogs during interrogations, muzzled or unmuzzled, 
consistent with the intent and the spirit of the Army Field Manual, 
which is consistent with Treaties on Human Rights, the Geneva 
Conventions, our International Obligations, and domestic law;
    General Romig. The use of military working dogs as a security or 
control measure, when properly controlled by a trained dog handler, is 
not objectionable. The use of dogs as a method of interrogation (as 
distinguished from a security or control measure) would not be 
consistent with the intent and spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM. If a dog is used as part of an interrogation approach 
to harass, intimidate, threaten or coerce a detainee, the use is not 
consistent with the FM. Proper use of dogs for security purposes 
independent from interrogations is not inconsistent with the intent and 
spirit of the FM.
    General Sandkuhler. No, the use of dogs as an interrogation method 
intended to place the detainee in fear of death or injury would not be 
consistent with FM 34-52, which prohibits threats and exposure to 
unpleasant treatment. The use of military working dogs in their usual 
function of security and detection may be permissible, so long as they 
do not threaten the detainee.
    General Rives. No, this is not consistent with the intent and 
spirit of Army Field Manual 3452. The use of dogs for legitimate 
security, control, patrol and inspection functions is appropriate, but 
use of dogs as an interrogation approach or tactic is inconsistent with 
the intent and spirit of the Army Field Manual.

    B. Is forcing a detainee to wear a woman's bra and thong placed on 
their head during the course of the interrogation consistent with the 
intent and the spirit of the Army Field Manual, which is consistent 
with Treaties on Human Rights, the Geneva Convention, our International 
Obligations, and domestic law;
    General Romig. No. Forcing a detainee to wear a woman's bra and 
thong placed on his head during the course of the interrogation, in an 
attempt to humiliate or degrade the detainee, would not be consistent 
with the intent and the spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM. The FM provides that the Geneva Conventions 
provisions concerning protected persons be strictly adhered to in the 
quest to identify legitimate threats and gain needed intelligence. 
Among those provisions are the prohibition on physical or moral 
coercion and the prohibition on subjecting individuals to humiliating 
or degrading treatment.
    General Sandkuhler. No, this is not consistent with FM 34-52, which 
prohibits insults and unpleasant treatment. Furthermore, the Geneva 
Conventions prohibit ``outrages upon personal dignity, in particular 
humiliating and degrading treatment.'' (GC, Art. 3(1)(c))
    General Rives. No, forcing a detainee to wear a woman's bra and 
thong on his head as an interrogation tactic designed to humiliate or 
degrade the detainee is not consistent with the intent and spirit of 
the Army Field Manual.

    C. Is telling a detainee that his mother and sister were whores 
consistent with the intent and the spirit of the Army Field Manual, 
which is consistent with Treaties on Human Rights, the Geneva 
Conventions, our International Obligations, and domestic law;
    General Romig. No. Telling a detainee that his mother and sister 
are whores, thereby degrading him and his family, would not be 
consistent with the intent and the spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM.
    General Sandkuhler. No, this is not consistent with FM 34-52, which 
prohibits insults.
    General Rives. No, telling a detainee that his mother and sister 
were whores as an interrogation tactic is not consistent with the 
intent and spirit of the Army Field Manual.

    D. Is telling a detainee that he is a homosexual, had homosexual 
tendencies, and other detainees had found out about these tendencies 
consistent with the intent and the spirit of the Army Field Manual, 
which is consistent with Treaties on Human Rights, the Geneva 
Conventions, our International Obligations, and domestic law;
    General Romig. No. Telling a detainee that he is a homosexual, had 
homosexual tendencies, and other detainees had found out about these 
tendencies, thereby humiliating and possibly endangering the detainee, 
would not be consistent with the spirit or intent of the Army Field 
Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM.
    General Sandkuhler. No, this is not consistent with FM 34-52 if it 
is meant to insult or threaten. The FM 34-52 also recommends ``not 
inquiring into those private affairs which are beyond the scope of the 
interrogation.'' (FM 34-52, Chap. 1)
    General Rives. No, telling a detainee that he is a homosexual, had 
homosexual tendencies, and other detainees had found out about these 
tendencies as an interrogation tactic is not consistent with the 
intent. and the spirit of the Army Field Manual.

    E. Is leading a detainee around the room on all fours and forcing 
him to perform a series of dog tricks consistent with the intent and 
the spirit of the Army Field Manual, which is consistent with Treaties 
on Human Rights, the Geneva Conventions, our International Obligations, 
and domestic law;
    General Romig. No. Leading a detainee around the room on all fours 
and forcing him to perform a series of dog tricks, thereby humiliating 
or demeaning him, would not be consistent with the intent and the 
spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM.
    General Sandkuhler. No, this is not consistent with FM 34-52, which 
prohibits insults and unpleasant treatment. Furthermore, the Geneva 
Conventions prohibit ``outrages upon personal dignity, in particular 
humiliating and degrading treatment.'' (GC, Art. 3(1)(c)).
    General Rives. No, leading a detainee around the room on all fours 
and forcing him to perform a series of dog tricks is not consistent 
with the intent and the spirit of the Army Field Manual.

    F. Is forcing a detainee to dance or touch an interrogator in a 
provocative fashion consistent with the intent and the spirit of the 
Army Field Manual, which is consistent with Treaties on Human Rights, 
the Geneva Conventions, our International Obligations, and domestic 
law;
    General Romig. No. Forcing a detainee to dance or touch an 
interrogator in a provocative fashion, thereby humiliating or demeaning 
him, would not be consistent with the spirit and intent of the Army 
Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM.
    General Sandkuhler. No.
    General Rives. No, forcing a detainee to dance or touch an 
interrogator in a provocative fashion as an interrogation tactic is not 
consistent with the intent and the spirit of the Army Field Manual.

    G. Is subjecting detainees to strip searches and forcing them to 
stand naked while females are present consistent with the intent and 
the spirit of the Army Field Manual, which is consistent with Treaties 
on Human Rights, the Geneva Conventions, our International Obligations, 
and domestic law;
    General Romig. Use of strip searches for lawful safety and security 
purposes is not objectionable. Subjecting detainees to strip searches 
and forcing them to stand naked while females are present, as a method 
of interrogation, would not be consistent with the intent and the 
spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM. Properly conducted strip searches for security 
purposes independent of interrogations are not inconsistent with the 
intent and spirit of the FM.
    General Sandkuhler. No, forcing a detainee to strip or to stand 
naked in front of the opposite sex as a means of interrogation is not 
consistent with the intent and spirit of FM 34-52. A strip search 
conducted in a respectful manner for security or law enforcement 
purposes may be permissible.
    General Rives. No, subjecting a detainee to strip searches and 
forcing him to stand naked while females are present as an 
interrogation tactic is not consistent with the intent andthe spirit of 
the Army Field Manual.

    H. Is preventing detainees from praying and mishandling the Koran 
consistent with the intent and the spirit of the Army Field Manual, 
which is consistent with Treaties on Human Rights, the Geneva 
Convention, our International Obligations, and domestic law; and
    General Romig. Mishandling the Koran in order to coerce cooperation 
by the detainee would not be consistent with the intent and the spirit 
of the Army Field Manual. Also, threatening to subject a detainee to 
disadvantageous treatment with respect to the exercise of religious 
duties, because of a failure to cooperate with interrogators, is a form 
of coercion and would not be consistent with the intent and spirit of 
the Army Field Manual.
    With respect to religious practices, however, a balance must be 
found between a detainee's obligation to comply with the disciplinary 
routine prescribed by military authorities and the obligation of the 
authorities to afford latitude to prisoners in the reasonable exercise 
of their religious duties. For example, a detainee may not demand to 
attend prayer all day in order to avoid interrogation.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM.
    General Sandkuhler. No, preventing detainees from praying and 
deliberate mishandling of the Koran is not consistent with the intent 
and spirit of FM 34-52. Furthermore, guards should be properly trained 
to avoid accidental mishandling of any items held sacred by detainee 
religious groups.
    General Rives. No, preventing detainees from praying, and 
mishandling the Koran is not consistent with the intent and the spirit 
of the Army Field Manual.

    I. Is pouring cold water on detainees' head and water boarding 
consistent with the intent and the spirit of the Army Field Manual, 
which is consistent with Treaties on Human Rights, the Geneva 
Convention, our International Obligations, and domestic law?
    General Romig. Water boarding would not be consistent with the 
intent and the spirit of the Army Field Manual. There may be valid 
health and safety reasons to pour cold water on a detainee's head in 
particular circumstances and, in those circumstances, such actions 
would not be inconsistent with the intent and the spirit of the Army 
Field Manual. Under other circumstances, however, pouring water on a 
detainee's head as a means of or aid to interrogation could be 
considered unlawful coercion and would not be consistent with the 
intent and the spirit of the Army Field Manual.
    Admiral McPherson. No, this is not consistent with the intent and 
spirit of the FM. Pouring cold water on a detainee's head in situations 
other than as an interrogation technique would not necessarily be 
inconsistent with the intent and spirit of the FM.
    General Sandkuhler. No. Water boarding, which I understand is 
intended to place the detainee in fear of drowning, and pouring cold 
water on a detainee's head, which I understand is intended to cause 
discomfort, would not be consistent with FM 34-52.
    General Rives. No, pouring cold water on detainee's head and water 
boarding is not consistent with the intent and the spirit of the Army 
Field Manual.

    Mr. Hutson. I would say ``no'' to all with the possible exception 
of ``D.'' I would also add that in my opinion, if the answers were 
determined to be ``yes'' I would change the AFM to ensure no Americans 
engage in that type of behavior. It is not appropriate, it's demeaning 
to the interrogators, and it is not productive.
                                 ______
                                 
               Questions Submitted by Senator Carl Levin

                   OFFICE OF LEGAL COUNSEL MEMORANDUM

    8. Senator Levin. Mr. Dell'Orto, at the hearing you stated that the 
March 14, 2003, Office of Legal Counsel (OLC) memorandum from Deputy 
Assistant Attorney General John Yoo to Defense Department General 
Counsel William J. Haynes ``was withdrawn as an operational document, 
and so it is no longer in effect and is no longer being considered as 
any precedent of any sort.'' You also stated that ``It was certainly as 
recently as February of this year, but we were asked not to rely upon 
it going back to December 2003. I have not relied upon it since.'' Who 
directed you in December 2003 to no longer rely on the March 14, 2003 
OLC memo and what led to that decision being taken at that time? Please 
provide the committee with the documents officially rescinding the 
March 14, 2003, OLC memo.
    Mr. Dell'Orto. Assistant Attorney General Goldsmith (See DOJ Office 
of Legal Counsel letter dated February 4, 2005, enclosed at Tab B). 
Although I was informed that the March 14, 2003. OLC memo was under 
review, I was not told what led to the decision to conduct that review.
      
    
    
      
    
    
      
    9. Senator Levin. Mr. Dell'Orto, according to a recent news article 
(Washington Post, July 15, 2005), DOD General Counsel Haynes issued a 
memo earlier this year rescinding the Working Group Report on Detainee 
Interrogations in the global war on terrorism. Has the Working Group 
report been rescinded? If so, please provide the committee with a copy 
of the memo rescinding that report.
    Mr. Dell'Orto. The working group report on detainee interrogation 
was rescinded on March 17, 2005. The memorandum is enclosed at TAB C.
      
    
    
                                 ______
                                 
            Questions Submitted by Senator Edward M. Kennedy

                      AWARENESS OF FBI OBJECTIONS

    10. Senator Kennedy. Mr. Dell'Orto, a 2004 FBI e-mail indicated 
that the DOD was obtaining unreliable intelligence and was jeopardizing 
future prosecution of the detainees. The e-mail states that these 
concerns were raised in weekly meetings with high-ranking Criminal 
Division personnel at the Justice Department, including Deputy 
Assistant Attorney General Alice Fisher, and that all of them agreed 
the interrogation techniques would be an issue in trials by military 
commissions, since the statements were being coerced. According to the 
e-mail, the concerns were brought to the attention of the Office of 
General Counsel by Bruce Swartz.

    A. When did you first become aware that the Federal Bureau of 
Investigations (FBI) was concerned about the effectiveness and 
reliability of the DOD interrogation techniques?
    B. Who brought it to your attention?
    C. What was the substance of the complaints?
    D. What was your response?
    E. How did General Counsel Haynes respond?

    Mr. Dell'Orto. As intelligence collection and criminal 
investigative activities involving detainees evolved from the inception 
of DOD detention operations at Guantanamo, there had been occasions 
when the professional and doctrinal approaches of intelligence 
collectors and criminal investigators led to disagreements in the 
field. From time to time, I had been made aware of such disagreements 
as reported by the responsible officials in the appropriate command or 
component. Discussions with Department of Justice officials focused on 
matters relating to the collection of evidence in criminal 
investigations and the collection of intelligence information critical 
to carrying out the global war on terrorism. My response and that of 
the DOD General Counsel have been to address these matters consistently 
within the requirements of U.S. law and consistent with U.S. policy 
concerning the humane treatment of detainees.
    Differences in approaches toward interrogation between the military 
intelligence community and the law enforcement community were reported 
beginning relatively early in the evolution of DOD detention operations 
at Guantanamo. For example. the law enforcement community raised issues 
regarding the requirement to provide Miranda warnings to detainees. The 
military intelligence community was not obligated to provide such 
warnings. It also was reported on several occasions that the law 
enforcement community believed the most effective way to obtain 
information from a detainee was to build rapport with the detainee. I 
understood that the military intelligence community desired to pursue a 
course of interrogation that drew heavily on the techniques described 
in Army Field Manual 34-52. From time to time reports of these 
differences in approaches to interrogation came to our office from 
various sources. Some reports came from the military Intelligence 
Community at Guantanamo, and some came from Department of Justice 
attorneys who met with Department of Defense attorneys from time to 
time. Whenever Mr. Haynes learned of such reports, he directed inquiry 
through the Joint Staff to the chain of command to determine whether 
the differences between the communities reflected the historically 
different roles of the two communities or whether there were specific 
complaints about the interrogation of particular detainees and the 
specific techniques employed. To the best of my recollection, no 
specific complaints about abuse of detainees or any FBI concerns about 
interrogation of particular detainees or specific techniques were 
brought to our attention in any of these reports. As for concerns about 
the admissibility of statements obtained during interrogations and the 
possible effect that interrogation approaches might have on the 
admissibility of such statements, I was mindful of two factors that 
were counterweights to the DOJ concerns about admissibility as 
evidence; first, that the principal purpose for interrogations at 
Guantanamo was to acquire intelligence about current and future planned 
al Qaeda operations so as to thwart those operations and protect the 
United States and its citizens from future attacks, and second, that 
the military commission rules provided for greater latitude in the 
admissibility of such statements than was the case in Article III 
courts, the latter forum being the principal focus of the DOJ 
attorneys.

                 MEETINGS WITH THE FBI GENERAL COUNSEL

    11. Senator Kennedy. Mr. Dell'Orto, in a 2004 letter to major 
General Donald Ryder, FBI Deputy Assistant Director T. J. Harrington 
specifically referred to discussions between you and the FBI Office of 
General Counsel about the FBI concerns. What action did you take in 
response to those discussions?
    Mr. Dell'Orto. I did not meet with the FBI General Counselor any 
attorney from that office. My recollection is that I had a telephone 
conversation with an attorney from the FBI Office of General Counsel in 
the summer of 2003. During that telephone call, I ascertained that the 
time frame of the concerns being expressed was prior to January 2003, 
the month during which the Secretary of Defense responded to Mr. 
Haynes' reports about concerns brought to his attention by an official 
within the Department of Defense by suspending a number of the 
interrogation techniques being employed with respect to one detainee at 
Guantanamo. The FBI attorney did not report specific techniques or 
detainees to me or report any concerns about techniques employed after 
January 15, 2003. I asked this attorney to provide me with any details 
or additional information if he later learned of any.

    12. Senator Kennedy. Mr. Dell'Orto, what did General Counsel Haynes 
instruct you to do?
    Mr. Dell'Orto. I do not recall discussing this telephone call with 
Mr. Haynes. In the absence of further specifics relating to the 
concerns expressed and the time frame of the interrogations that 
appeared to be the source of the FBI concerns, there was nothing more 
to be done since the Secretary had taken clear action in January 2003 
to limit the types of lawful techniques to be used at Guantanamo and 
again in April 2003 to direct a new set of techniques for use at 
Guantanamo that also were well within the law and based on a solid 
policy foundation.

    13. Senator Kennedy. Mr. Dell'Orto, did you discuss DOD's response 
with the FBI and the Justice Department and if so, with whom and what 
information was communicated?
    Mr. Dell'Orto. I do not recall a subsequent conversation with the 
FBI or Department of Justice on this issue.

    14. Senator Kennedy. Mr. Dell'Orto, what techniques were the 
subject of the FBI's complaint?
    Mr. Dell'Orto. As far as I recall, the FBI attorney did not provide 
any specific techniques during. our telephone call and did not 
subsequently call with any further detail.

    15. Senator Kennedy. Mr. Dell'Orto, did you stop the techniques 
that were the cause of the FBI's concern?
    Mr. Dell'Orto. In the absence of any detailed information provided 
during the call I received in the summer of 2003 and given that the 
call referred only to the pre-January 2003 time frame, I took no 
further action. On January 15, 2003, the Secretary of Defense had 
suspended the use of any technique that was not included among those 
identified in Army Field Manual 34-52.

                  CONCERNS ABOUT DOD INTERVIEW METHODS

    16. Senator Kennedy. Mr. Dell'Orto, Alice Fisher told the Judiciary 
Committee that she recalled having general discussions about the 
effectiveness of the DOD's interview methods, including whether the 
FBI's methods were more effective in obtaining intelligence. Did you or 
anyone on the General Counsel's staff have knowledge of the substance 
of Ms. Fisher's concerns and if so, to whom were they communicated, and 
what were the concerns?
    Mr. Dell'Orto. Differences in approaches toward interrogation 
between the military intelligence community and the law enforcement 
community were reported beginning relatively early in the evolution of 
DOD detention operations at Guantanamo. For example, the law 
enforcement community raised issues regarding the requirement to 
provide Miranda warnings to detainees. The military intelligence 
community was not obligated to provide such warnings. It also was 
reported on several occasions that the law enforcement community 
believed the most effective way to obtain information from a detainee 
was to build rapport with the detainee. I understood that the military 
Intelligence Community desired to pursue a course of interrogation that 
drew heavily on the techniques described in Army Field Manual 34-52. 
From time to time reports of these differences in approaches. to 
interrogation came to our office from various sources. Some reports 
came from the military Intelligence Community at Guantanamo, and some 
came from Department of Justice attorneys who met with Department of 
Defense from time to time. To the best of my recollection, no specific 
complaints about abuse of detainees or any FBI concerns about 
interrogations of particular detainees or specific techniques were 
brought to our attention in any of these reports. As for concerns about 
the admissibility of statements obtained during interrogations and the 
possible effect that interrogation approaches might have on the 
admissibility of such statements, I was mindful of two factors that 
were counterweights to the DOJ concerns about admissibility as 
evidence; first, that the principal purpose for interrogations at 
Guantanamo was to acquire intelligence about current and future planned 
al Qaeda operations so as to thwart those operations and protect the 
United States and its citizens from future attacks, and second, that 
the military commission rules provided for greater latitude in the 
admissibility of such statements than was the case in Article III 
courts, the latter forum being the principal focus of the DOJ 
attorneys.

    17. Senator Kennedy. Mr. Dell'Orto, please describe any 
communication, either direct or indirect, which you or members of the 
DOD Office of the General Counsel had with then Assistant Attorney 
General Chertoff about the FBI's complaints of coercive interrogation 
tactics.
    Mr. Dell'Orto. I am not aware of any communication that I or any 
member of the Office of General Counsel had with then-Assistant 
Attorney General Chertoff about FBI complaints of coercive 
interrogation tactics.

                OVERRIDING JUDGE ADVOCATE GENERAL INPUT

    18. Senator Kennedy. Mr. Dell'Orto, the DOD's Church Report reveals 
a disagreement primarily between military legal leadership on one side, 
and DOD General Counsel, the Department of Justice, and White House 
Counsel Alberto Gonzales on the other side, over interrogation tactics 
and what constitutes torture.
    In response to requests from other government agencies, the 
Department of Justice produced the Bybee memo: a legal framework for 
interrogation guidance. Mr. Haynes then convened a Pentagon working 
group to look at interrogation policies, and wanted to adopt the Bybee 
memo. According to Admiral Church's report, many military lawyers and 
some civilian lawyers objected to the contents of the Bybee memo. At a 
Senate hearing in March, Admiral Church told us he concluded that DOD 
General Counsel William J. Haynes overrode the objections and imposed 
the Bybee analysis.
    Why did Mr. Haynes decide to override the expert suggestions of the 
military lawyers in the Judge Advocate General (JAG) Corps?
    Mr. Dell'Orto. On January 15, 2003, the Secretary of Defense 
directed the DOD General Counsel. to establish a working group within 
the Department of Defense to assess the legal, policy and operational 
issues relating to the interrogation of detainees held by the United 
States Armed Forces in the global war on terrorism. On January 16, 
2003; the DOD General Counsel asked the General Counsel of the 
Department of the Air Force to convene this working group, comprised of 
representatives of the Office of the Under Secretary of Defense 
(Policy), the Defense Intelligence Agency, the General Counsels of the 
Air Force, Army, and Navy, the Counsel to the Commandant of the Marine 
Corps, the Judge Advocates General of the Air Force, Army, and Navy, 
the Staff Judge Advocate to the Commandant of the Marine Corps, the 
Legal Counsel to the Chairman of the Joint Chiefs of Staff, and the 
Director of the Joint Staff. The working group was tasked to make 
recommendations concerning employment of particular interrogation 
techniques by DOD interrogators. The assessments and recommendations of 
this working group were considered carefully by senior DOD officials in 
their deliberations.
    The deliberations of the working group were extensive, with 
vigorous exchanges of views and consultations, including among the 
senior legal advisors of DOD components, which the DOD General Counsel 
encouraged. The DOD General Counsel met with and listened to the views 
expressed by the Judge Advocates General, the Staff Judge Advocate to 
the Commandant, the General Counsels of the military departments, the 
Counsel to the Commandant of the Marine Corps, and the Legal Counsel to 
the Chairman of the Joint Chiefs of Staff individually and 
collectively. He offered to meet with any working group staff attorney 
who desired to discuss his or her views on the issues under review ,and 
did so on at least one occasion with multiple attorneys. The working 
group's assessment of the legal issues included the input of and 
consultation with Department of Justice representatives. The DOJ Office 
of Legal Counsel is the authoritative entity in the executive branch 
for interpretations of the law. In light of the complexity and 
significance of the issues presented for consideration by the working 
group, consultation with DOJ Office of Legal Counsel was especially 
prudent and desirable. The DOD General Counsel encouraged interaction 
and debate between the working group and the DOJ Office of Legal 
Counsel. This resulted in at least two meetings between DOJ Office of 
Legal Counsel attorneys and the working group and at least one meeting 
between a senior Office of Legal Counsel attorney and a Military 
Department General Counsel.
    In my experience and consistent with my understanding of the role 
of the Office of Legal Counsel within the Department of Justice, legal 
opinions of the Office of Legal Counsel are considered to be 
authoritative within the executive branch. Mr. Haynes did not override 
the objections of the military lawyers in the Judge Advocate General's 
Corps. He communicated this longstanding executive branch policy. 
Nevertheless, although the Office of Legal Counsel legal opinion was 
considered to be authoritative with respect to the Department of 
Defense as to the opinion's analysis of the law it reviewed, there were 
other matters of law as well as considerations of policy that the 
working group did address and incorporate into its report without 
reliance on the views of the Office of Legal Counsel. The Office of 
Legal Counsel properly left those other matters of law and 
considerations of policy solely to the working group. For instance, the 
Office of Legal Counsel deferred to the working group on the 
application of the Uniform Code of Military Justice. The policy 
arguments regarding reciprocity, among other things, that appear in the 
working group report were the product solely of the working group 
efforts. Indeed, the Office of Legal Counsel never suggested, nor did 
it opine on, any of the interrogation techniques considered by the 
working group or included in its report during the report's 
preparation. Mr. Haynes considered all aspects of the report, as did 
the Secretary of Defense when he approved, consistent with the 
recommendations of the Chairman of the Joint Chiefs of Staff, the 
Deputy Secretary of Defense, the Under Secretary of Defense for Policy, 
and Mr. Haynes, the 24 techniques for use at Guantanamo in April 2003. 
As was disclosed publicly in June 2004, these 24 techniques were a 
relatively small subset of the 35 techniques that the working group had 
recommended for consideration by the Secretary and included only 7 
techniques that had not been reflected in earlier versions Army Field 
Manual 34-52. In sum, there is no basis for asserting that Mr. Haynes 
overrode the suggestions of anyone who participated in the working 
group process. Indeed he embraced those suggestions and communicated 
all views to the Secretary of Defense.
    I note that no ``Bybee memo'' was shared with the working group. 
The Office of Legal Counsel opinion to which I refer above was not 
signed by Mr. Bybee, but rather by a senior Office of Legal Counsel 
attorney and dated March 14, 2003. This opinion, itself, was being 
drafted and reviewed during the period that the working group was 
performing its task and benefited from some of the discussion that 
members of the working group had with Office of Legal Counsel attorneys 
while they were reviewing and concluding the opinion.
    I am not aware of any involvement by then-Counsel to the President 
Alberto Gonzales in this process as the question appears to suggest.
    Addendum to answers provided previously. I request that you 
consider as part of the answers to both questions the attached July 19, 
2005, letter that Michael Marchand, Major General , U.S. Army (retired) 
sent to Senators Specter and Leahy.
      
    
    

             CONTENT OF JUDGE ADVOCATE GENERAL DISAGREEMENT

    19. Senator Kennedy. Mr. Dell'Orto, a January 2003 Air Force JAG 
memo for the record objects to the conditions that were seen on the 
ground at Gitmo. At our hearing, General Romig, General Rives, and 
General Sandkuhler all stated that they wrote memos and spoke in 
opposition to some of the determinations in the Bybee memo and the 
subsequent Working Group Report. Mr. Hutson, the former Navy JAG, said 
the Bybee legal framework ``was shallow in its legal analysis, 
shortsighted in its implications, and altogether ill-advised. Frankly, 
it was just wrong.'' The Navy General Counsel said this legal analysis 
is questionable at best. Mr. Haynes overrode all their objections and 
decided the Bybee framework would apply. Why did Mr. Haynes convene a 
working group if he was going to ignore their expert opinions and go 
with the Bybee memo?
    Mr. Dell'Orto. Please refer to my answer to Question 18 above. In 
addition, and with respect to the matter of the various memoranda 
submitted by the Judge Advocates General duringthe working group 
process, a review of those memoranda demonstrates that much of their 
focus was on the applicability of the Uniform Code of Military Justice 
and on policy concerns. I believe that an objective reading of the 
working group report leads to the conclusion that those issues are more 
than fairly addressed in the report. And, as I indicated in the answer 
to Question 18 above, in communicating his recommendation to the 
Secretary of Defense, Mr. Haynes embraced those suggestions and 
communicated all views to the Secretary.
    Addendum to answers provided previously. I request that you 
consider as part of the answers to both questions the attached July 19, 
2005, letter that Michael Marchand, Major General , U.S. Army (retired) 
sent to Senators Specter and Leahy.
      
    
    

    20. Senator Kennedy. Mr. Dell'Orto, was there an understanding that 
certain elements of the Bybee memo would not change under the working 
group?
    Mr. Dell'Orto. Drafts of what later emerged as the March 14, 2003, 
Office of Legal Counsel opinion were made available for review by and 
discussed with the working group as the opinion evolved. Upon 
finalization, the March 14, 2003, signed opinion was considered to be 
authoritative within the executive branch, including the Department of 
Defense, with respect to the matters of law it addressed. To the extent 
that the working group report addressed those areas of law that the 
Office of Legal Counsel opinion analyzed, the working group relied on 
that interpretation of the law. To the extent that the Office of Legal 
Counsel opinion did not address other matters--for example, the 
applicability of the Uniform Code of Military Justice and the 
considerations of policy as discussed in the answer to Question 18 
above--the Office of Legal Counsel deferred all review of those matters 
to the working group.

                    POLICY ON TREATMENT OF DETAINEES

    21. Senator Kennedy. Mr. Dell'Orto, the President's policy on 
treatment of detainees asserts that all detainees are to be treated 
humanely. What is the definition of ``humanely'' or ``humane 
treatment'' according to the DOD Office of the General Counsel?
    Mr. Dell'Orto. As outlined by the White House on February 7, 2002, 
U.S. policy, as determined by the President, is to treat an persons 
detained in the global war on terrorism ``humanely and, to the extent 
appropriate and consistent with military necessity, in a manner 
consistent with the principles of the Third Geneva Convention of 1949. 
Even though th detainees are not entitled to POW privileges, they will 
be provided many POW privileges as a matter of policy.'' The White 
House Fact Sheet of February 7, 2002, identifies that all detainees are 
being provided:

         three meals a day that meet Muslim dietary laws;
         adequate shelter;
         water and medical care;
         clothing and shoes;
         showers;
         soap and hygiene items;
         foam sleeping pads and blankets;
         towels and washcloths;
         the opportunity to worship and reading materials;
         correspondence materials and the means to send mail:
         the ability to receive packages of food and clothing, 
        subject to security screening.

    In addition, the February 2002 Fact Sheet states that ``The 
detainees will not be subjected to physical or mental abuse or cruel 
treatment. The International Committee of the Red Cross has visited and 
will continue to be able to visit the detainees privately. The 
detainees will be permitted to raise concerns about their conditions 
and we will attempt to address those concerns consistent with 
security.''
    Furthermore, in accordance with existing DOD regulations, including 
Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, 
Civilian Internees and Other Detainees:

         ``All persons captured, detained, interned, or 
        otherwise held in U.S. Armed Forces custody during the course 
        of conflict will be given humanitarian care and treatment from 
        the moment they fall into the hands of U.S. forces until final 
        release or repatriation.''
         ``The inhumane treatment of EPW, CI, RP is prohibited 
        and is not justified by the stress of combat or with deep 
        provocation.''
         ``All prisoners will receive humane treatment without 
        regard to race, color, nationality, religion, political 
        opinion, sex, or other criteria. The following acts are 
        prohibited: murder, torture, corporal punishment, mutilation, 
        the taking of hostages, sensory deprivation, collective 
        punishments, execution without trial by proper authority, and 
        all cruel and degrading treatment.''
         ``All persons will be respected as human beings. They 
        will be protected against all acts of violence to include rape, 
        forced prostitution, assault and theft, insults, public 
        curiosity, bodily injury, and reprisals of any kind. They will 
        not be subjected to medical or scientific experiments.''

    22. Senator Kennedy. Mr. Dell'Orto, the policy also calls for 
treatment in accordance with the principles of the Geneva Conventions, 
as long as it is consistent with ``military necessity.'' Who determines 
when ``military necessity'' exists, and how is that term defined?
    Mr. Dell'Orto. The conditioning of certain rights under the law of 
war based upon the military necessity requirements of the detaining 
power is a fundamental concept within the law of war that is reflected 
within the Geneva Conventions of 1949. Throughout history, the need for 
the law of war to accommodate the security concerns of the detaining 
power has been recognized. Pictet's Commentary to the Third Geneva 
Convention of 1949, for example, states that limitations on access to 
prisoners of War for ``reasons of imperative military necessity'' were 
necessary: ``Otherwise, [detaining powers] would sometimes have been 
put in a position where they were faced with the choice of either 
violating the Conventions or harming their own military position. Here 
as elsewhere, humanitarian principles must take into account actual 
facts if they are to be applicable.'' (p.611).

               DIFFERENCE BETWEEN TREATMENT OF DETAINEES

    23. Senator Kennedy. Mr. Dell'Orto, at the hearing you and the JAGs 
confirmed that the treatment of detainees in Iraq, who are covered by 
the Geneva Conventions, is subject to different guidelines than 
treatment of detainees in Gitmo. Part of the justification for approval 
of certain interrogation techniques at Gitmo, which would fall outside 
the Geneva Conventions, is that they are necessary to combat terrorism 
and save American lives of troops on the ground. Iraq is also currently 
a battleground for combating terrorism. Do you distinguish between 
individuals detained as terrorism suspects with links to al Qaeda or 
other jihadist organizations in Iraq, and those detained as non-
jihadist Iraqi insurgents?
    Mr. Dell'Orto. From the outset in the conflict in Iraq, the 
administration position has been unequivocal that the Geneva 
Conventions applied to Operation Iraqi Freedom. The application of the 
Geneva Conventions to the conflict in Iraq, however, does not 
necessarily result in their protections applying to non-Iraqi, al Qaeda 
members who enter Iraq to conduct terrorist attacks against coalition 
forces. The facts of any such case would need to be carefully 
scrutinized, but significant al Qaeda figures cannot legitimize their 
terrorist activities in the global war on terrorism simply by entering 
Iraqi territory.

    24. Senator Kennedy. Mr. Dell'Orto, is the intelligence you obtain 
from terrorism suspects in Iraq superior to the intelligence you obtain 
from those detained in Gitmo?
    Mr. Dell'Orto. I am not in a position to compare the quality of 
intelligence obtained from detainees in Iraq and Guantanamo.

                           MILITARY INSIGNIA

    25. Senator Kennedy. Mr. Dell'Orto, part of the justification for 
not detaining the individuals at Gitmo in a manner consistent with the 
Geneva Conventions is that they were not wearing proper insignia on the 
battlefield. Are there American servicemembers on the ground not 
wearing military insignia? If so, where?
    Mr. Dell'Orto. DOD Directive 5100.77, DOD Law of War Program, 
December 9, 1998, provides that U.S. Armed Forces must comply with the 
law of war during all armed conflicts, however such conflicts are 
characterized. The law of war includes prohibitions on perfidy and 
requires combatants to distinguish themselves during combat operations.
    The President determined that although the conflict with the 
Taliban is covered by the Geneva Convention Relative to the Treatment 
of Prisoners of War of August 12, 1949 (GPW), the Taliban detainees are 
not entitled to POW status under the terms of GPW Article 4. One aspect 
of this determination was based on the factual determination that the 
Taliban, as a force, failed to wear a fixed distinctive sign 
recognizable at a distance. The requirements for POW stat11s in Article 
4 for Armed Forces, militias, and other volunteer corps refer to the 
actions of the collective forces, not individuals.
    Standard U.S. military uniforms satisfy the requirements of GPW 
Article 4. Unlike the Taliban, U.S. Armed Forces operate in accordance 
with the generally accepted practice of States with respect to the 
wearing of uniforms by members of the Armed Forces. The requirements of 
Article 4 may, however, be satisfied by other than a standard military 
uniform, e.g., a partial uniform or a fixed, distinctive sign, provided 
that forces are recognizable as combatants. In limited, exceptional 
circumstances, a small number of U.S. forces may be authorized to 
operate in other than standard military uniforms, but in all cases are 
required to conduct their operations in accordance with the law of war.

    26. Senator Kennedy. Mr. Dell'Orto, if captured, would members of 
the U.S. military not wearing insignia receive the protections of the 
Geneva Conventions?
    Mr. Dell'Orto. As already noted, U.S. Armed Forces conduct their 
operations in accordance with the law of war. In an international armed 
conflict where the Geneva Conventions apply, captured U.S. forces would 
be entitled to, and should be provided, POW protections. Should there 
be doubt regarding whether a captured U.S. servicemember belongs to any 
of the categories enumerated in GPW Article 4, he or she would be 
entitled to, and should enjoy, POW protections until such time as his 
or her status has been determined by a competent tribunal.
    Regardless of whether the Geneva Conventions apply to a conflict, 
captured U.S. servicemembers should be provided appropriate care and 
humane treatment from the time they are captured until their ultimate 
release or repatriation, consistent with the law of war.
    It should be noted in addressing this question in the context of a 
U.S. servicemember captured by the Taliban or al Qaeda that their 
forces have demonstrated repeatedly their absolute disregard for the 
law of war and any obligation to provide humanitarian care and 
treatment to persons they capture.

    [Whereupon, at 12:47 p.m., the subcommittee adjourned.]