The committee will come to order. This hearing
addresses standards for military commissions for trials involving
war crimes. I also want to introduce a new Republican Member
from California as a member of the committee, and we will wait
until he arrives before we do that.
But I want to welcome our distinguished panel. We have with us
today Mr. Steven Bradbury, Acting Assistant Attorney General, Office
of Legal Counsel, Department of Justice; Mr. Daniel Dell’Orto,
Principal Deputy General Counsel, Department of Defense; the
Honorable Theodore Olson, former Solicitor General of the United
States; and Rear Admiral John Hutson, United States Navy, retired,
former Judge Advocate General, U.S. Navy.
Gentlemen, thank you for being with us. We look forward to
hearing your comments on the recent Supreme Court decision on
military commissions and where we go from here.
In Hamdan, the Supreme Court denied the government’s motion
to dismiss, stating the Detainee Treatment Act of 2005, which Congress
passed at the end of the year, did not deprive the Court of
jurisdiction. The Court also held that the President’s rules for military
commissions are not legal because they do not conform to the
Uniform Code of Military Justice and because they do not conform
to Common Article 3 of the Geneva Conventions.
I think we need to take a close look at each of these rulings, but
before we go any further, we need to do a reset. Make no mistake
about the United States is engaged in a war with terrorists.
Whether we call it a Long War or a Global War Against Terror, or
some other term, this Nation is at war. The enemy declared war
in 1996 when Osama bin Laden declared a jihad against America.
It continued on September 11th, and it continues today. We are at
war, and we may be at war for a long time.
I emphasize this at the outset because we are here to address
how America fights wars. All three branches of government are in2
volved in this discussion with the Supreme Court’s decision in
Hamdan v. Rumsfeld.
In Hamdan, the Supreme Court told us to start over when it
comes to trying the enemy as war criminals. We need to start over
not just because the Court told us to, but because we are in a new
type of war against a new type of enemy.
Justice Thomas put it best in Hamdan.
He said, and I quote: We
are not engaged in a traditional battle with a nation-state, but with
a worldwide Hydra-headed enemy who lurks in the shadows, conspiring
to reproduce the atrocities of September 11th, 2001, and
who has boasted of sending suicide bombers into civilian gatherings,
has proudly distributed videotapes of beheadings of civilian
workers, and has tortured and dismembered captured American
So who are we dealing with in military commissions? We are
dealing with the enemy in war, not defendants in our domestic
criminal justice system. And on that point the background that I
have seen on Mr. Hamdan is that he is accused of being a bodyguard
for Osama bin Laden, a deliverer of weapons and a person
who operated convoys for al Qaeda.
So we are dealing with the enemy in war, not defendants in our
domestic criminal justice system, that is clear. Some of them have
returned to the battlefield after we let them out of Guantanamo,
and this committee has seen pictures of people who were released
from Guantanamo after they asserted that they had had only a peripheral
connection with the battlefield and that they would be behave
themselves if allowed to return home, and later on they ended
up carrying weapons, shooting at, and presumably inflicting injury
on American soldiers on the battlefield.
So our primary purpose is to keep them off the battlefield. In
doing so, we treat them humanely, and if we choose to treat them
as war criminals, we will give them due process rights that the
world will respect. But we have to remember they are the enemy
in an ongoing war. In this new war where intelligence is more vital
than ever, we want to interrogate the enemy, not to degrade them,
but to save the lives of American troops, American civilian and our
allies. But it may not be practical on the battlefield to read the
enemy their Miranda warnings.
Classified information is another area which we need to look
closely at. Do we want to give the enemy the sources and methods
of how we obtain information? Court-martials in Federal criminal
trials have special rules to protect classified information for our soldiers
and civilians, but do we want to give battle intelligence to terrorists?
In time of war it may not be practical to apply the rules
of evidence that we do in civilian—the same rules of evidence that
we do in civilian trials or court-martials for our troops. Will commanders
and witnesses be called from the frontline to testify in a
military commission, or can we use reliable hearsay and sworn affidavits?
I note that hearsay is allowed in international war crime
tribunals for Rwanda and Yugoslavia.
Justices Stevens and Kennedy, who both shaped the Hamdan
opinion, each stated that there could be justification from deviation
from the old rules in this new war. Justice Stevens simply said the
President did not make such a justification for the rules regarding
military commissions, although he said such a justification might
be proper if, and I quote, some practical need explains deviations
from court-martial practice.
Justice Kennedy said, again I quote, ‘‘If Congress after due consideration
deems it appropriate to change the controlling statutes
in conformation with the Constitution and other laws, it has the
power and prerogative to do so.’’
So let’s see if there is a need or practical reason to change the
rules. We have to give the executive the tools to fight this war.
This is not a separation of powers issue; it is an issue of how to
defeat the enemy. The Supreme Court says that we need congressional
participation, but in doing so let’s not forget our purpose is
to defend the Nation against the enemy. We won’t lower our standards,
we will always treat detainees humanely, but we can’t be
The war started in 1996 with the al Qaeda declaration of jihad
against the Nation. The Geneva Conventions were written in 1945,
and the Uniform Code of Military Justice (UCMJ) was adopted in
1951. In that sense Hamdan may be broader than war crimes trials
that may be the start of a new legal analysis of the long war.
It is time for us to think about war crime trials and a process
that provides due process and protects national security in the new
war. So I think that really is the essence of what we need to
produce in this effort that Congress is going to undertake, and that
is a balancing of these two goals, national security and due process,
fair play for those who are detained.
Whatever we decide, we will uphold basic human rights and
state what our compliance with this standard means for the treatment
of detainees. I am sure we can do this in a way that is fair
and the world will acknowledge is fair. Each witness here today is
uniquely qualified to address these questions.
And so, gentlemen, thank you for being with us, and before we
go to your statements, I would like to turn to my good friend from
Missouri, Mr. Skelton, whose father was involved in the litigation
of one of the key cases that was cited by the Hamdan court ex
parte. I look forward to his comments and the comments from all
my colleagues, and I would also like to mention that Ms. Sanchez
has proposed a provision for a commission that she offered—has offered
in our last markup, and she has worked this issue, and she
should be commended for that, and we will be looking at her proposal
as well as proposals and recommendations and suggestions of
So at this time I would like to turn to the gentleman from Missouri,
STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE
FROM MISSOURI, RANKING MEMBER, COMMITTEE ON
Mr. Chairman, thank you very much. I join in welcoming
Mr. Chairman, I am going to be brief and ask that my longer
statement be entered into the record in the interest of going
straight to the testimony and to the questions.
We in Congress have a responsibility to those who serve in uniform
in the same way we are committed to ensuring that our forces
have the best equipment when they go into battle. We will do everything,
I will repeat, we will do everything to make sure the
enemy is taken off the battlefield and not given another opportunity
to kill American soldiers and marines.
We take this as our charge, but we must do so in a way that conforms
strictly to the rule of law with our core values as Americans.
That is what our troops fight for.
Mr. Chairman, I am glad you mentioned Ms. Sanchez’s proposed
legislation. She has been working on this for a good number of actually
years, if I understand correctly, and has anticipated the outcome
of this case.
The Supreme Court spoke loudly and it spoke clearly when it
ruled in the Hamdan case, and we can and we must craft a system
for aggressively dealing with accused terrorists and war criminals
that holds them to account, but we must do so in a way that meets
the standards that are laid out by the Supreme Court decision.
The Court has given Congress a clear charge to craft a system
that provides basic due process. We can and we must get this right.
The worst thing we can do, Mr. Chairman, is for another Supreme
Court decision to kick back what we do.
So to do so, I believe we must look carefully at tried and true
existing systems of law like the Uniform Code of Military Justice
that may provide a basis for a solution. We must consider the
modifications that need to be made to make commissions most effective
as a tool in the war on terror.
Mr. Chairman, this is not the first time that we have had tribunals
or commissions regarding an enemy. In 1942 and 1946 again,
we had commissions that were upheld at that time. But under this
recent Supreme Court decision, it is possible to legislate a system
that will keep terrorists off the battlefield and meet the Court
This hearing is a good first step, and I compliment you, but we
will need more hearings like them and will need to work together
in a bipartisan, open process to figure out the best solution. This
will take time and will take consideration. It is well worth it for
our troops and for the outcome of the war on terror, and I look forward,
Mr. Chairman, to undertaking this effort and hearing from
[The prepared statement of Mr. Skelton can be found in the Appendix
on page 53.]
I thank the gentleman, and again, gentlemen,
good morning. Mr. Bradbury, thank you, sir, for being with us. The
floor is yours.
STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT
Thank you, Mr. Chairman, Ranking Member
Skelton and members of the committee.
The Supreme Court in Hamdan v. Rumsfeld held that the military
commissions that the President had established were inconsistent
with the Uniform Code of Military Justice and the Geneva
Conventions. It is important to realize, as the Chairman emphasized,
that the Court did not question the authority of the United
States to detain enemy combatants in the war on terror, and its decision
does not require us to close Guantanamo Bay (GTMO) or release
any terrorists. The Court implicitly recognized that the vicious
attacks of al Qaeda triggered our right to use military force
in self-defense, and that we are involved in an armed conflict with
The Court furthermore made clear that its decision rested only
on an interpretation of current statutes and treaty-based law. The
Court did not address the President’s constitutional authority and
did not reach any constitutional question. Therefore, Hamdan now
gives the Congress and the Administration a clear opportunity to
work together to address the matters raised by the case, including
the appropriate procedures to govern military commissions.
In moving forward after Hamdan, the basic question we must answer
is how best to pursue the prosecution of al Qaeda and other
terrorist combatants in this armed conflict. In trying al Qaeda terrorists
for their war crimes, it is not appropriate as a matter of national
policy, not practical as a matter of military reality, not required
by the Constitution, and not feasible in protecting sensitive
intelligence sources and methods to require that military commissions
follow all of the procedures of a court-martial.
In my written testimony I have identified several provisions of
the Uniform Code of Military Justice and court-martial procedures
that are impractical to apply in the military commission context.
Mr. Chairman, all the issues with military commissions identified
by the Supreme Court can be addressed and resolved through
legislation. The Administration stands ready to work with Congress
to do just that so that trials of captured al Qaeda terrorists
can move forward again.
In its decision, the Court also addressed the application of the
Geneva Conventions to al Qaeda fighters in our war on terror. On
this point it is important to emphasize that the Court did not decide
that the Geneva Conventions as a whole apply to our conflict
with al Qaeda or that members of al Qaeda are entitled to the
privileges of prisoner of war status. The Court held rather that the
basic standards contained in Common Article 3 of the Geneva Conventions
apply to the conflict with al Qaeda.
Of course, the terrorists who fight for al Qaeda have nothing but
contempt for the laws of war. They have killed thousands of innocent
civilians in the United States and thousands more in numerous
countries around the world. They openly mock the rule of law,
the Geneva Conventions, and the standards of civilized people everywhere,
and they will attack us again if given the chance.
When the Geneva Conventions were concluded in 1949, the drafters
of the conventions certainly did not anticipate armed conflicts
with international terrorist organizations such as al Qaeda. Be that
as it may, we are now faced with the task of implementing the
Court’s decision on Common Article 3.
Last year, Congress engaged in a significant public debate on the
standards that should govern the treatment of captured al Qaeda
terrorists. Congress codified that standard in the McCain amendment,
part of the Detainee Treatment Act, which prohibits cruel,
inhuman or degrading treatment or punishment, but, importantly,
it defined that standard by reference to the established meaning of
our Constitution for all detainees held by the United States.
We all believe that enactment of the Detainee Treatment Act settled
questions about the baseline standard that would govern the
treatment of detainees by the United States in the war on terror.
That assumption is no longer true.
In its ruling in Hamdan, the Supreme Court has now imposed
another baseline standard, Common Article 3 of the Geneva Conventions.
On the one hand, when reasonably read and properly applied,
Common Article 3 will prohibit the most serious and grave
offenses. Most of the provisions of Common Article 3 prohibit actions
that are universally condemned such as violence to life, murder,
mutilation, torture and the taking of hostages.
These are a catalog of the most fundamental violations of international
humanitarian law. In fact, they neatly sum up the standard
tactics and methods of warfare utilized by our enemy.
On the other hand, although Common Article 3 should be understood
to apply only to serious misconduct, it is undeniable that
some of the terms in Common Article 3 are inherently vague. Common
Article 3 prohibits, quote, ‘‘outrages upon personal dignity,in
particular, humiliating and degrading treatment,’’ a phrase that is
susceptible of uncertain and unpredictable application. In Common
Article 3 it is not defined by reference to our own Constitution as
it is in the McCain amendment.
Furthermore, the Supreme Court has said that in interpreting a
treaty provision, the meaning given to the treaty language by international
tribunals must be accorded, quote, ‘‘respectful consideration,’’
and the interpretations adopted by other State parties to
the treaty are due considerable weight. Accordingly, the meaning
of Common Article 3, the baseline standard that now applies to the
conduct of U.S. personnel in the war on terror, would be informed
by the evolving interpretations of tribunals and governments outside
the United States. Many of these interpretations to date have
been consistent with the reading that we would give to Common
Article 3. Nevertheless, the application of Common Article 3 will
create a degree of uncertainty for those who fight to defend us from
The meaning of Common Article 3, of course, is not merely academic,
because the War Crimes Act makes any violation of Common
Article 3 a felony offense.
We believe that the standards governing the treatment of detainees
by the United States in the war on terror should be certain,
and that those standards should be defined by U.S. law consistent
with our Constitution and our international obligations. We look
forward to working with Congress to protect the American people
and to ensure that unlawful terrorist combatants can be brought
to justice consistent with the Supreme Court’s guidance.
I look forward to discussing those issues with the committee this
morning, and thank you, Mr. Chairman.
Mr. Bradbury, thank you.
[The prepared statement of Mr. Bradbury can be found in the
Appendix on page 60.]
Mr. Dell’Orto, thank you for being with us today,
Thank you, Mr. Chairman.
Pull that up closer, make sure it is on.
STATEMENT OF DANIEL J. DELL’ORTO, PRINCIPAL DEPUTY
GENERAL COUNSEL, DEPARTMENT OF DEFENSE
Thank you, Mr. Chairman, Ranking Member
Skelton and members of the committee. On behalf of the Department
of Defense, please allow me to express my gratitude for the
opportunity to appear before you today and for the prompt and
careful consideration by the committee of necessary measures in response
to the Supreme Court’s decision in Hamdan v. Rumsfeld.
I join wholeheartedly Mr. Bradbury’s statement and add just a
few words of my own. The United States military has convened
criminal tribunals other than courts-martial since the days of the
very first Commander-in-Chief George Washington. From the Revolutionary,
Mexican-American, and Civil Wars, on through World
War II and the present, our Nation and its military have considered
these tribunals an indispensable tool for the dispensation of
justice in the chaotic and irregular circumstances of armed conf.
The military commission system reviewed by the Court in
Hamdan fits squarely within this long tradition. Tradition, however,
is not the only justification for employing criminal adjudication
processes other than courts-martial in times of armed conflicts.
Alternative processes are necessary to avoid the absurd results of
adopting protections for terrorists that American citizens do not receive
in civilian courts.
The court-martial system generally is not well known or understood
outside the military. One common misperception is that
courts-martial must necessarily render a lesser form of justice because
they fall outside the judicial branch, but the opposite is actually
true. To protect in court those who protect us in battle and to
avoid even the appearance of unlawful command influence, courtsmartial
are more solicitous of the rights of the accused than are civilian
For every court-martial rule that is arguably less protective of
the accused than its civilian analog, there are several that are indispensably
more protective. For example, legal counsel is provided
without cost not just for the indigent, but for all. The rights to
counsel and against self-incrimination are afforded earlier in the
military justice system than in civilian practice. Instead of indictment
by grand jury, which convenes in secret without the defendant
and defense counsel, the military justice system requires that
for a general court-martial a thorough and impartial investigation
be open to the public and the media, at which the accused and defense
counsel may conduct pretrial discovery and call and cross-examine
The court-martial process allows open and full discovery of the
government’s information by the accused, a process more open and
automatic than discovery in civilian criminal prosecutions. The
speedy trial rules are much more strict in the military justice system
than in the civilian system. The statute of limitations that applies
to most military offenses is shorter than the Federal statute
for terrorism offenses, and the rules for exclusion of evidence are
more generous toward the accused than their civilian counterparts.
While tradition and common sense, therefore, provide strong support
for alternative adjudication processes for terrorists and other
unlawful enemy combatants, military necessity is perhaps the
strongest reason of all. It is simply not feasible in time of war to
gather evidence in a manner that meets strict criminal procedural
Service personnel are generally not trained to execute military
combat and intelligence missions while simultaneously adhering to
law enforcement standards and constraints.
Asking our fighting men and women to take on additional duties
traditionally performed by police officers, detectives, evidence
custodians, and prosecutors will not only distract from their mission,
but endanger their lives as well. Intelligence gathering would
also suffer terribly. It would greatly impede intelligence collection
essential to the war effort to tell detainees before interrogation that
they are entitled to legal counsel, that they need not answer questions,
and that their answers may be used against them in a criminal
Similarly, full application of court-martial rules would force the
government either to drop prosecutions or to disclose intelligence
information to our enemies in such a way as to compromise ongoing
or future military operations, the identity of intelligence
sources, and the lives of many. Military necessity demands a better
As Mr. Bradbury stated, the Hamdan decision provides Congress
and the President an opportunity to address these critical matters
together, and we look forward to working with you.
Thank you, Mr. Chairman.
Thank you, Mr. Dell’Orto.
[The prepared statement of Mr. Dell’Orto can be found in the Appendix
on page 71.]
Mr. Olson, thank you very much for being with
us today, and the floor is yours, sir.
STATEMENT OF THEODORE B. OLSON, FORMER SOLICITOR
GENERAL OF THE UNITED STATES
Thank you, Chairman Hunter, Ranking Member
Skelton, and members of this committee. I appreciate the opportunity
to appear before the committee to testify about a Supreme
Court decision that has far-reaching implications for the President’s
ability to defend our national security and to perform his duties
as Commander-in-Chief. No issue, I believe, deserves more
thoughtful consideration from our elected representatives than ensuring
that the American people are defended from a savage terrorist
enemy that deliberately targets civilian lives and mutilates our
soldiers in an effort to destroy our way of life.
It is altogether necessary and appropriate for Congress to consider
a legislative response to the Hamdan decision. Indeed, all
eight Justices who participated in the case recognized that congressional
action could cure any perceived inadequacies in the military
commissions established by the President.
In my written submissions to you, I address the questions of
military commissions and the applicability of the Geneva Conventions
and how that issue might be dealt with. I would like to today
just focus on another aspect of the Hamdan decision that I don’t
believe will be covered by the other witnesses.
In response to the Justices’ invitation to implement a legislative
solution, it is my view that Congress should restore the status quo
that existed prior to the Supreme Court’s decision in Hamdan and
Rasul v. Bush two years ago that for the first time in the history
of the United States, and contrary to long-established precedence,
held that Federal courts in the United States had jurisdiction over
the capture, detention and treatment of noncitizen aliens captured
on the battlefield and held beyond the sovereign territory of the
The Supreme Court in that Rasul decision overturned Johnson v.
Eisentrager, a Supreme Court precedent written by Robert Jackson
that had stood for over 50 years, and held for the first time that
the habeas corpus statute gave the Federal courts jurisdiction to
supervise the custody of alien combatants held abroad by our military
In the Hamdan decision, the Court held that the Detainee Treatment
Act enacted by this Congress in response to the Rasul case,
reasserting by Congress that the courts had no jurisdiction to hear
habeas corpus petitions from enemy alien combatants held abroad,
the Supreme Court in Hamdan reversed that decision and said that
it did not apply, your legislation did not apply, to pending cases.
Since the emergence of the writ of habeas corpus several centuries
ago in English common law courts, the writ has never been
available to enemy aliens held outside a country’s sovereignty. By
requiring the President to justify his military decisions in Federal
courts, Rasul imposes a substantial and unprecedented burden on
the President’s ability to react with vigor and dispatch to homeland
The congressional response to Rasul, as I mentioned before, was
the Detainee Treatment Act that explicitly provided that no court
shall have jurisdiction to hear or consider an application for a writ
of habeas corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay. No court, no jurisdiction.
Notwithstanding that clearly stated legislative language, the
Hamdan Court held that the Detainee Treatment Act does not
apply to those petitions that were pending at the time of the decision.
That holding requires the Federal courts to adjudicate hundreds
of other habeas corpus petitions filed by Guantanamo Bay
detainees pending at the time that legislation was enacted.
Until the Supreme Court’s Rasul decision, no court had ever suggested
that aliens captured during hostilities and held outside the
United States could challenge their captivity through a petition for
writ of habeas corpus filed in a U.S. court. Indeed, none of the two
million prisoners of war held by the United States at the conclusion
of World War II was deemed authorized to file a habeas petition
in a U.S. court challenging the terms or conditions of their confinement.
One can only imagine the chaos that would have been introduced
into the effort to win World War II if each of these detainees or
lawyers on their behalf had been permitted to file petitions in the
United States courts immediately upon their capture in Europe, Africa,
or in the islands of the Pacific. Yet that is precisely the circumstance
that Rasul and Hamdan have created and that the
President and the armed forces must face today in their fight
The Rasul and Hamdan decisions impose a tremendous burden
on our military personnel in the field. To begin with, as the Supreme
Court explained in the Eisentrager decision 50 years ago,
authorizing courts at the behest of enemy aliens to second-guess
the decisions of military commanders will diminish the prestige of
our commanders not only with the enemies, but with wavering
The Court goes on: It would be difficult to devise more effective
fettering of a field commander than to allow the very enemies he
is ordered to reduce to submission to call him to account in his own
civilian courts and divert his efforts and attention from the military
offensive abroad to the legal defensive at home.
Mr. Dell’Orto mentioned some of the complications, but they include:
Will commanders be summoned from the field to give evidence
and to explain the circumstances of the capture of combatants?
Will detainees have access to counsel? Do they have the right
to appointed counsel, Miranda warnings, the right to speedy trials?
Will the Government be required to disclose sensitive intelligence
information to demonstrate that its detention of enemy combatants
Those are just a few examples. I submit that Congress should act
to restore the status of the habeas corpus jurisdiction that has existed
throughout this Nation’s history until two years ago. The
Constitution places the decision to detain a noncitizen enemy combatant
on the battlefield squarely within the domain of the President
as Commander-in-Chief of the Armed Forces. Congress should
restore the constitutional balance by amending the Detainee Treatment
Act to clarify, as the Congress, I think, thought it did then,
that Federal courts lack jurisdiction over habeas corpus petitions
filed by detainees held outside the sovereign territory of the United
States, no matter when those petitions were filed.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Olson can be found in the Appendix
on page 74.]
Mr. Olson, thank you very much.
Rear Admiral Hutson, thank for being with us this morning.
STATEMENT OF REAR ADM. JOHN D. HUTSON, (RET.), PRESIDENT
AND DEAN, FRANKLIN PIERCE LAW CENTER, FORMER
JUDGE ADVOCATE GENERAL, U.S. NAVY
Thank you, Mr. Chairman. Mr. Skelton, thank
you. Thank you for holding what I think are incredibly important
hearings on the issue of the day right now in prosecution of the
I want to start out by saying unequivocally that I want to be able
to successfully prosecute terrorists; however, I believe that success11
ful prosecution entails a full and fair hearing which complies with
the dictates of Common Article 3 to the extent that it is a regularly
constituted court that comports with the judicial guarantees recognized
as indispensable by all civilized peoples. I don’t believe that
there is any part of that, a regularly constituted court or judicial
guarantees recognized as indispensable by civilized peoples, that
the United States should or could try to avoid or evade in any way.
We shouldn’t make this too hard or too complicated or try to get
too cute with it. We know what those guarantees are. We should
enthusiastically embrace them, we should celebrate them, we
should shout them from the rooftops. We can do that from a position
of strength, not from a position of weakness. It is those guarantees
that make us strong.
We are the strongest Nation militarily on the face of the Earth,
there is no doubt about that. Our strength as a Nation comes not
from our military strength or from our economy or from our natural
resources or the essential island nature of our geography; our
strength comes from what we have stood for for generations. That
is what gives us strength, and we should be proud of that and celebrate
I was an early supporter of the concept of military commissions,
and I still am. I think it is the way to go. I was not a supporter
of the way in which they were implemented in the second order.
We should use commissions as a means whereby we demonstrate
to the world what it is we are fighting so valiantly to preserve.
I was talking with a lawyer yesterday from Human Rights First
about the Hamdan decision and my testimony in this hearing, and
she made a comment to me that I thought was very profound and
compelling, which was that Hamdan was not—the Hamdan decision
was not a revolution, it was a return. It was returning us to
where we should be. It shouldn’t have been a shock, it should have
been ho-hum. It was return to business as usual.
The United States stands for the rule of law, and we have for
years. It is not a rule of law if you only apply it when it is convenient.
It is something else. For too long this has been a discussion
between the executive branch and the courts, and it is time, as you
know by conducting these hearings, to return the conversation to
the proper forum, which is to say Congress.
If Hamdan stands for anything, it stands for the proposition that
Congress has to engage thoughtfully and deliberately in these
issues. There are those who advocate the Congress simply reaffirm
what the President did prior to Hamdan with military commissions.
I think that would be a dramatic mistake. There are those
that would say we should start out and pull out a clean sheet of
paper and start writing. I think that is not the easy way to do this.
This can be easy, and I mean E-A-S-Y. It can be easy. On every
bookshelf of every U.S. military lawyer stationed anyplace in the
world sits a burgundy soft-covered book. That book is the envy of
every armed force on the face of the Earth. It contains the Uniform
Code of Military Justice and the Manual for Courts-Martial. We
should use that as the model.
I am glad that the prior witnesses have talked about the
strength and the beauty of the Uniform Code of Military Justice
and the Manual for Courts-Martial. Those documents can be modi12
fied in such a way as to avoid the list of horribles that have been
listed. Article 32 can be modified or eliminated.
I agree the media talks about it generally as the military equivalent
of the grand jury investigation, and that is not even close. Article
32 is so much more than the grand jury investigation. The
modifications—and I don’t want to use the word relax, relaxing the
UCMJ or the rules of evidence—the modifications to the UCMJ and
the military rules of evidence and procedure have to be very narrow,
they have to be very specifically tailored, they have to be justified,
and if those things are done, I don’t think any court is going
to have any problem with using the UCMJ and the Manual for
We decided, this Nation decided, early on that this was going—
we were going to deal with terrorism as a war rather than as a
criminal activity, and I think that was a good decision, but that in
itself is a new paradigm, and what we have done is say in this war
we are now going to start prosecuting people. We didn’t prosecute
Hitler’s driver or bodyguard and probably wouldn’t have if we had
captured him. This is different. We are taking people who are coming
in off the battlefield, and rather than just holding them, which
we could do, we want to prosecute them. That is fine, but if we are
going to do that, we have to do it in accordance with certain rules
that are generally accepted as indispensable by civilized people.
I am proud to be a lawyer. I think our system of justice defines
how good this country is. I think that we have the opportunity now
to demonstrate to the rest of the world what that system looks like,
and, with some minor modifications to the UCMJ, we can do that.
We shouldn’t reverse-engineer the commissions, assuming that
everybody is guilty, and then create a commission that is geared
to proving that point. We have to start at the beginning. And I
would suggest that we do that with the Uniform Code of Military
Thank you, sir. I look forward to your questions.
Thank you very much, Admiral Hutson.
[The prepared statement of Admiral Hutson can be found in the
Appendix on page 96.]
Gentlemen, let me ask you to do something that
is a little unlawyerlike, but I think to kind of tee the ball up here
for the committee. Give me a one-liner, what did you think
Hamdan told Congress? Think about that a little bit. If you can
give that to us in one line, what do you think?
I guess the one line, Mr. Chairman, I would say
is that it is up to Congress now to design the procedures for military
commissions and make the decisions as to what makes sense
in a trial, in an al Qaeda terrorist versus a trial of a U.S.
servicemember. Those are two different things. It is up to Congress
to decide, and we are here to work with you to make that happen.
Mr. Chairman, if I were to try to condense this
into a very short answer as you have asked me to, I would say
that, in slightly modifying what Mr. Bradbury said, the Supreme
Court apparently found no underlying flaw in the commission proc13
ess as established. It simply said the President did not consult with
We have been many, many years in the process of trying to try
the detainees who we believe have committed war crimes. All Congress
needs to do, assuming it has taken the opportunity to review
the commission process as it is currently configured, is to ratify
that process, and we can move on very, very quickly. And that is
what I think the Supreme Court has signaled to this Congress.
So it was a requirement for the participation of
Congress with the executive that was the essence of the opinion.
I think that is the essence of it, Mr. Chairman.
I believe the Supreme Court said that Congress
needs to approve the method of formation and the procedures to be
used with military commissions, but that judges will retain jurisdiction
to second-guess the execution of those decisions in every
case; and that when this Congress said no court shall have jurisdiction
to hear or consider habeas corpus applications filed by the detainees
in Guantanamo, Congress didn’t mean what it said; and
that as long as that judicial jurisdiction to second-guess military
decisions exists, we will have the judiciary participating in the conduct
of military operations wherever they occur. And that gave this
Congress an opportunity to say again what it tried to say in the
Detainee Treatment Act.
Rear Admiral Hutson.
I think that they were saying to constitute a
court that is consistent with universally accepted judicial guarantees.
Okay. Just to take that last description by Rear
Admiral Hutson, if you look at Geneva Article 3, Common Article
3, and it talks about regularly constituted court, that is presumably
the product that would be—if we put together a body of law to govern
these procedures, that would satisfy those particular words in
Article 3; is that what you are talking about, Admiral Hutson?
Yes, sir. I think if this body creates the court,
it is regularly constituted.
Then you have spoken, Rear Admiral Hutson,
about standards that are manifest in the Uniform Code of Military
Justice, basically standards of fairness for defendants’ rights. Do
you agree that the exigencies of the battlefield would reasonably
reduce the scope of those rights, or do you think that the full rights
of the UCMJ should be afforded or that the base of the UCMJ
should be used? I am trying to understand precisely your position.
Absolutely. The exigencies of the battlefield
and war on terror would necessitate—Article 3 didn’t come down
from Mount Sinai on a stone tablet, but there are guarantees that
are embedded in the Uniform Code of Military Justice that comport
with those judicial guarantees generally accepted, and I think
those are the presumption of innocence, independent judiciary, all
of those kind of things; facing your accuser, knowing the evidence
consistent with military rule of evidence 505 which talks about how
to deal with classified evidence in a very complete way, so that,
yes, sir, I believe there are modifications that have to be made.
What I am reminded of is we went through the
Guantanamo exercise when those—all the issues surrounding
Guantanamo were elevated to a status where it was reviewed
strongly by the committee, and what struck me fairly profound was
a fairly high number of folks out of the 310 or so that were released
were proven to have returned to the battlefields and taken
up arms against our troops.
And that one thing that you said a minute ago caught my attention
was—and tell me if I am wrong, but you said to the effect that
there is nothing wrong with warehousing some of these people over
a period of time to keep them from returning to the battlefield. And
you understand the enormous pressure that was put on the Administration
to prosecute or release. Did I understand your statement
Well, I would modify your description of it
slightly. I believe that the United States can capture terrorists and
warehouse them. I think it is going to create—we are going to run
into a diplomatic wall and a political wall and a pubic relations
wall before we run into a legal wall. The war on terror is certainly
different in the sense that it is going to go on for probably a much
longer period of time, and that is going to cause people some problems.
All I am saying is that we can’t presume that they are guilty and
create a system to demonstrate that fact.
Okay. I am reminded, I think one of the early
cases that we learned in law school, I think it was Davis v. Mississippi,
where a person murdered an elderly lady and left his fingerprints
on the window sill, and the fingerprints later were
matched up with a person who had been taken out of an unconstitutional
lineup. And so that was one of the cases where it was fairly
clear that the exclusionary rule was intended to apply even
though guilty people would go free. But that was a pain that our
society was willing to suffer and a loss that we were willing to suffer
to let the murderer walk out the door to ensure and discipline
our system so that the appropriate procedures were followed.
In this case the pain that we might see is an enemy combatant
returning—if he can’t confront his accusers because the sergeant
who said, that guy was manning the rocket-propelled grenade, that
sergeant may be dead or unavailable to be—to confront the accuser,
so—or to confront the accused, so the accused goes free. The
pain would be manifested and reflected in perhaps dead Americans
on the battlefield.
And so the question becomes on your scale of balancing this need
for basic rights for the accused with our basic need to be secure
and to protect our soldiers, where do you think we should move
that forward? What are your thoughts? Hearsay evidence, right to
confront accuser, that type of thing. I would like to ask all the
members of the panel that. In fact, go ahead, Admiral Hutson, and
move right down the panel.
I would say, sir, that the evidence would have
to have some apparent authenticity and validity in order to be introduced.
You can’t just let in everything. There has to be some
sort of standard, and apparent authenticity and validity may be a
reasonable standard to use.
If you have fingerprint evidence in your example in Davis, if you
have fingerprint evidence, but the chain of custody isn’t perfected,
I wouldn’t have any problem introducing that in a military commission.
I would have a problem introducing it in a court-martial of
a U.S. troop, but acknowledging your acknowledgment of the difference
of the battlefield, that would probably be acceptable to me.
But I do think, Mr. Chairman, that there is a balance, and there
may have to be to some extent a sacrifice, maybe not as dramatic
as the case you point out in Davis, but there may have to be a sacrifice
if we are going to do this in a way that we are proud.
I yield to Rear Admiral Hutson and Mr. Dell’Orto
and Mr. Bradbury with respect to the specifics of how those judgments
might be made. The point that I think is important is that
when you are fighting an enemy like this—one that defies all civilized
rules, that intends to be as savage as possible to the most
vulnerable people in the world, that has no scruples or principles,
and that will go back every time to the battlefield, maybe not to
the battlefield, but to a synagogue or a school bus—we have to
have some flexibility built into the system so that the President as
Commander-in-Chief and military officials down the line have some
You talked about the exigencies of the circumstances. I think
there has to be flexibility and freedom to exercise discretion by the
executive. We accord a presumption of some discretion, some deference
to the Federal Communications Commission (FCC), to the
Environmental Protection Agency (EPA), to the Army Corps of Engineers
in court decisions, but there was no deference to the President’s
judgments about the practicalities of military commissions
by the Supreme Court in the Hamdan decision, so that when you
legislate in this area, if you do, I would urge Congress to make
sure that there is room for discretion, depending upon the circumstances
of the particular case, and that exercise of that discretion
will be accorded some deference by any agency or court reviewing
it to understand the circumstances, because the price that military
officials will pay if their judgments are second-guessed and not
accorded some deference later on in court may be very, very high.
Someone may be prosecuted for a war crime for exercising perfectly
reasonable judgment with respect to the putting on of a case with
respect to an enemy combatant or capturing one.
Mr. Dell’Orto, any comments?
Mr. Chairman, I had the privilege of serving on
active duty for almost 28 years, the first 8 years as a field artillery
officer and the balance of my career as a judge advocate officer, and
spent time mostly in the criminal law arena. Our system as it currently
exists, the court-martial system, is a fantastic system, and
it has come to unfold, develop, evolve over the years at the urging
of Congress because it has taken very good care to ensure that that
system has been developed in a way that will provide the greatest
amount of protections to our soldiers.
But I don’t want a soldier, when he kicks down a door in a hut
in Afghanistan searching for Osama bin Laden, to have to worry
about whether when he does so and questions the individuals he
finds inside, who may or may not be bin Laden’s bodyguards or
even that individual himself, to worry about whether he has got to
advise him of some rights before he takes a statement. I don’t want
him to have to worry about filling out some form that is going to
support the chain of custody when he picks up a laptop computer
that has the contact information for all manner of cells around the
world while he is still looking over his shoulder to see whether
there is not an enemy coming in after him.
I want us to be able to do what the President said we should,
guarantee a full and fair trial to these terrorists that would include
such things as the presumption of innocence at the outset of the
trial, that would include a standard of proof that puts the burden
on the prosecution that requires that he be found guilty by proof
beyond a reasonable doubt, that provides him with counsel, that
does so many things that our system of justice in the United States
calls for. And I would say that the military commission procedures
that have been established to date do all of those things in a way
that takes into account what practicalities, practical difficulties,
are associated with trying to gather this evidence around the world
in various and sundry places that will place great limitations on
our ability to adhere to the standard, the standard rules that we
employ in our courts-martial process and in our civilian court process.
I think we have already done that, and, again, that is why I urge
that particular process as the starting point to get to the
Congress’s approval of the procedures that can be used to satisfy
what the Supreme Court has told us and the Congress need to be
Mr. Bradbury, where is that balance?
Mr. Chairman, I think the fundamental point, I
think, is simply that the procedures have to be flexible consistent
with fundamental fairness. I think there is a lot of flexibility in
light of the circumstances of the apprehension of these folks, the
kinds of evidence that is necessary to convict them, and the military
necessity. And so, for example, running down some of the
things that are provided in the UCMJ that I think need to be adjusted
or eliminated in the context of a military commission proceeding,
the Article 32 investigation that precedes a prosecution
needs to be off the table and needs to be done through a different
The right to counsel that is given, under the UCMJ it is given
when the individual is first suspected of having committed a crime,
and he gets counsel right away and gets Miranda rights right
away, that is inconsistent with simply needing to question individuals
to get intelligence from them.
Hearsay rules. International tribunals such as the international
criminal tribunals for Yugoslavia and Rwanda allow the use of
hearsay evidence. It is recognized that it is simply as a practical
matter necessary when you talk about crimes that have occurred
in far-flung places of the world. You are not going to be able to get
every witness in life for testimony. You are going to have to allow
the use of hearsay evidence where the fact-finder determines it is
probative, it is sufficiently reliable, and it is not outweighed by
undue prejudice. So you need that flexibility in hearsay rules.
Classified evidence. We absolutely have to carefully control exposure
of the terrorist detainee to classified sources and methods.
There are ways to do that that the commission can police to ensure
fundamental fairness, using summaries, using substitutes. We also
in the current military commission process would allow the detainee
to have counsel cleared in to get access to classified information
that is actually going to be used as evidence. But we think you
can do that in a way that is consistent with fundamental fairness,
and that should be something that a court on review, for example,
through the Detainee Treatment Act, the standards of review,
would be able to review after the fact.
So those are a few of the critical things that absolutely need to
be flexible in order to make a military commission process that has
historically worked work in this context.
Thank you, gentlemen.
The gentleman from Missouri, Mr. Skelton.
Mr. Chairman, thank you.
I am going to be brief. But I think we should remind ourselves
the purpose of all this is protection of our young people in uniform.
At the end of the day, that is really what we need to keep in mind,
to devise a system that will do that.
The Chairman said something about a one-liner.
Let me ask this,
if this is not consistent. We in Congress must provide a regularly
constituted court, which could be court-martial, UCMJ, Federal
court, or a specially designed Federal court or a tribunal; second,
a minimum of due process under the Geneva Convention Common
Article 3; and third, Congress must authorize departure from the
courts-martial or Federal rules and procedures in the event that
military commissions are established.
Did I leave anything out, gentlemen? Isn’t that really what the
Court said, those three items?
I am not sure, Congressman, the Court spelled
it out in exactly the way you have. I think that is consistent with
what the Court held, and I think if Congress were to enact a statute
that does what we have described here, it would satisfy all of
That is my question.
Thank you, Mr. Chairman.
Thank the gentleman.
The gentleman from Colorado, Mr. Hefley.
Thank you, Mr. Chairman. I think one of the struggles
we have, and I think you referred to it, and I think many of
us have struggled with this, is this question of whether it is a
crime or whether it is war or whether it is a crime during times
of war. And as one of you mentioned, in the Second World War, we
didn’t try the average soldier on the battlefield. We kept them, we
put them in concentration camps, and we kept them until the war
was over, but we didn’t try them. And I guess I would ask, what
should we be doing with these people regardless of their rank in
the bin Laden hierarchy? What should we be doing with them?
Should we be warehousing them, should we be keeping them in the
concentration camp like in wartime, or should we be trying them
like they were criminals? I don’t have much—a good feeling about
what we ought to do on that.
Congressman Hefley, we certainly have the right
under the law of armed conflict, having captured combatants on
the battlefield, to detain them for the duration of hostilities. That
is long settled, recognized not only under the law of war, but by
our courts. We can detain them until the end of the conflict.
During World War II, as someone has already mentioned, we detained
hundreds of thousands of lawful enemy combatants in various
camps around the country. I wouldn’t call them concentration
camps. We had them at many of our posts and installations around
the country. We could have had some in Colorado for all I know.
I can remember buying a Christmas tree from
a former enemy POW at one of my military assignments in
Baumholder, Germany, who can describe his experience at one of
our camps at Fort Knox, Kentucky. He thought it was a great experience.
He spent his time in captivity working in the mess hall
probably peeling potatoes or at the officer’s club. He thought—he
was fine with that, and he was very much a friend of our forces
over in Germany.
We did during World War II try some number of unlawful combatants,
or, I am sorry, people who had committed war crimes,
Yamashita; the German hierarchy for the crimes that they committed
that violated the laws of war. Now, if a lawful combatant, a soldier
in the German Wehrmacht, during World War II shoots one
of our soldiers during combat, he has the immunity that goes along
with participating as a lawful combatant in a combat action. I
mean, that is what happens in war. You shoot him, he shoots you
or shoots at you, and he, because he is—assuming he is fighting
lawfully, wearing a uniform, reporting to a chain of command, follows
the laws of war, carrying his arms openly, he is a lawful combatant,
a privileged belligerent who is not going to be tried for his
lawful activities on the battlefield. But if he goes into a farmhouse
and lines up a bunch of civilians and shoots them, he has committed
a non—those are noncombatants. He has committed a war
crime and is being subject to punishment for that. Or if he directs
that sort of activity as Yamashita did and takes no regards for the
consequences of what his soldiers do on the battlefield as they rape
and pillage, he is subject to trial for an unlawful—for his unlawful
What we have here are people who don’t wear uniforms. They
don’t carry arms openly. They don’t distinguish themselves from
the civilian population anyway. They don’t follow the laws of war.
They are without any discipline in the way they conduct their combat.
They deliberately attack civilians. They behead people, they
mutilate people. And so they are in theory at all levels unlawful
combatants. We are—we have charged ten of those people and
probably have another several dozen others who are likely to be
candidates for military commissions because their activities rate—
are at such a significant level that we believe they should be tried
as war criminals under the military commission process, the process
that we have had, or at least the tradition we have had, of conducting
these sorts of tribunals throughout our history.
So I don’t know if that answers your question. It is a long answer,
but I have tried to sort of put this in context.
No, it is very, very helpful. Since these are unlawful
combatants, so many of them, maybe most of them, do the rules of
the Geneva Conventions apply? Because those were drawn up to
deal—weren’t they primarily—with lawful combatants?
And those who are not part of the fight, so we
have the third Geneva Convention that deals with prisoners of war
that, like the people I described who were at our camps around the
United States during World War II, they would be covered today
under Geneva 3, and they would receive all sorts of rights.
Now, they could be punished for things that they did in the
camp. If they beat up a guard, they beat up another detainee, they
could be punished under our system for those acts, but they are not
going to be punished for their lawful activities on the battlefield.
Thank you very much.
The gentleman from Arkansas, Dr. Snyder.
Thank you, Mr. Chairman, and thank you for holding
this important hearing. I wanted to—we only have five minutes,
so I am going to ask quick questions, maybe get quick answers.
Going along with what Mr. Hefley talked about, I will go to you,
Admiral Hutson, is it an accurate description to say that what we
are all dealing with today and the changes we are talking about,
the proposals are to deal with the legal system to be set up for
those going to trial; the Hamdan decision did not deal with those
detainees who are not going to trial? Is that an accurate description,
Yes, sir. One of the reasons we are wrapped
around the axle about this is because we are trying to prosecute
people. That is the issue.
And what we all as the Congress and what Chairman
Hunter is holding these hearings about is what changes are
we going to make for those that we are taking to trial? We are not
talking about changing processes now for those that are not going
to trial. Is that an accurate description?
I believe that is what the committee is about.
Mr. Olson, it is great to have you here. I don’t recall
you being before our committee before, but I tell you I want to disagree
with you when you call for a restoration of the status quo.
I feel like—you know our good friend Gene Taylor here who lost his
home in Hurricane Katrina, and I think when you have something
struck down, you don’t want to build it back just the same as it
was status quo, you want to do it better. And I think we have an
opportunity to do better in terms of worldwide opinion.
I also want to comment or just make the comment I think two
or three of you in both your written statements and your statements
here today talk about the problem on the chain of evidence
in a door-to-door search or a Miranda warning. I mean, who the
hell is saying that? Nobody is saying that. I mean, I have talked
to my Republican colleagues. I am not aware of anyone who is saying,
gee, we are going to have to have the Miranda warnings in the
chaos of war, or we are going to have a real chain of evidence prob20
lem when people are passing this stuff along, being shot at, here
you have to sign here, Sergeant. Nobody is saying that. Let’s just
declare that as a red herring.
There is not going to be nothing coming from any Member of
Congress that says we are going to have Miranda warnings on the
battlefield or chains of evidence as we normally think of them
when we all watch Miami CSI. Those are red herrings. They are
not going—it is not going to be on the table.
I want to ask, last night I ran into Representative Butterfield,
who we all call Judge Butterfield because of his legal background.
I said, Judge, this stuff is complicated. And he said, no, it is not.
It is pretty easy. And then, Mr. Hutson, you came here today and
you said it is easy, and you spelled the word for us, E-A-S-Y, which
is helpful because we are House Members. We like to hear words.
And then you made it so easy because you attach—Mr. Chairman,
just for our record, he—is this part of his statement that is
admitted to the record where he has proposed amendments? I want
to read this one section in which you are suggesting changes. It is
836, section 36; the title of it: The President May Prescribe Rules,
which is current law. And the addition you suggest—and this is the
new language you suggest. I am going to read it.
‘‘To the extent that the President considers it impracticable for
the regulations for military commissions and provost courts to
apply the principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district
courts, the procedures in military commissions and provost courts
shall, subject to any applicable rule of international law and with
the exception of section 832 of this title (article 32), apply the principles
of law and pretrial, trial, and post-trial procedures, including
modes of proof, prescribed for general courts-martial.’’
Well, the key part of that, if I am correct, Mr. Hutson, is that—
the lead-in phrase, ‘‘To the extent the President considers it impracticable,’’
is what you are saying there that if the President determines
with the advice of these gentlemen at the table—of course
we are not going to have Miranda warnings on the battlefield, we
are not going to have strict chains of custody for evidence. Describe
it. It seems to me what that provision that you are suggesting we
adopt deals with the concerns of the gentleman to your right. Is
that a fair description?
Yes, sir. It is a fair description, and we try to
track basically the thrust of the Hamdan decision. With respect
when Mr. Bradbury used the word ‘‘flexible,’’ it kind of sends a chill
up my spine because it just sounds too flexible, but I think that if
the President is saying that it is impracticable to do this for the
following reasons, Article 32, Article 31, those kinds of things, he
can make that determination, report it to Congress, and we will
move on, and we will actually get some trials, we will actually complete
May I ask one quick follow-up, Mr. Chairman?
And what you are suggesting is that these would be—the President’s
rules would be not on a case-by-case basis, but——
Lay down a report to the Congress.
Thank you, Mr. Chairman, for holding this hearing.
Mr. Chairman, may I respond?
Oh, certainly. Any members of the panel can respond.
Congressman Snyder, we have been looking at
this particular question, as you can imagine, and let me give you
some of our preliminary assessments again. These are preliminary,
and so we have got—we do have much more work to do.
To do what you suggest or what Admiral Hutson suggests, preliminary
assessment would indicate that 110 rules for courts-martial,
73 military rules of evidence, and somewhere between 145 and
150 articles of the Uniform Code of Military Justice would require
some form of amendment to permit us to take the existing structure
and adapt it for military commission process. That is a gutting
of the Manual for Courts-Martial and the Uniform Code of Military
If you look at the current structure that we have in the military
commission order, comments from the President’s military order,
we have a process there that we believe comports very, very well
and compares very favorably with both the International Criminal
Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda.
To the extent we have to do this in order to approach or to satisfy
the Common Article 3 requirement that we have a system that
comports with these international norms of indispensable rights
that the citizens of the world would be happy with, then we believe
that if our structure as it is currently laid out matches what the
international community has already said is workable, we are already
there or just about there, and the minor tinkering that would
have to take place with respect to the existing structure for military
commissions is, in my estimation, and as much as I have to—
I hate to disagree with Admiral Hutson, a much easier process to
undertake than to try to, as I described it, gut the Uniform Code
of Military Justice and the Manual for Courts-Martial.
And I think that is the kind of discussion we will
have over the next few weeks and month or two, and I suggest, Mr.
Dell’Orto, the Chairman will want you to provide us your analysis
of that in the way we can all analyze it just like we have Mr.
Mr. Chairman and Congressman Snyder, I just
wanted to add one point, and that is that I don’t think that the implications
of the Court’s decision in Hamdan are limited exclusively
to the question of procedures for military commissions, because as
I tried to lay out in my testimony, the Court’s ruling on Common
Article 3 was an interpretation of the scope and application of that,
of Common Article 3, and contradicted or superseded the President’s
determination in 2002 that Common Article 3 does not
apply. The Court essentially said this is not an international conflict,
and therefore Common Article 3, which in the past has been
read to apply only to internal conflict, civil wars, if you will, now
has general application in our war with al Qaeda, and that has implications
and ramifications beyond simply the procedures for military
Okay. Any other responses?
I thank the gentleman from Arkansas.
The gentlelady from Michigan, Mrs. Miller.
Thank you, Mr. Chairman. And
thank the witnesses for all appearing before the committee today.
We appreciate your service to the Nation and appreciate your testimony
I have been trying to listen to this. I am not an attorney. There
is a lot of legalese going on here. I don’t even have a college degree,
but I am one of the few Members of Congress. I am not proud of
that, but that is just the way it turned out in my life, but I think
I am a reflection of middle America.
I will tell you, listening to the Supreme Court ruling, it just
struck me as being incredibly counterintuitive, and when we think
about the type of enemy that we are facing today, a new type of
enemy, one that hides in the shadows, one that preys on the innocent,
one that wants to kill us, and it has been—they have been
categorized as—how we need to be civilized, these people do not
meet the basic standards of civilized human beings. I think it is
very difficult for us as Americans to even get our mind around the
concept of a suicide bomber teaching a young person to be a suicide
bomber and what that means. I mean, I don’t consider that to be
And as we have talked today about what the Supreme Court ruling
actually says, that we need to have congressional participation
in this, perhaps this could be very easily handled. As you mentioned,
it could be easy. Could it be as easy as what Mr. Dell’Orto—
I hope I am pronouncing your name correctly—has suggested, that
we actually just ratify what the executive branch and the DOD has
done and move on? That is my question.
Ma’am, I believe that that is—that would be a
very desirable way to proceed.
You might not be surprised to hear that I disagree
with respect to Mr. Dell’Orto. I think that—and I don’t disagree
with your characterization at all. It goes back to what Congressman
Hefley pointed out, though I think—which is that we
have got the war on terror, and then on the other hand we are
talking about prosecuting people. And what some of my colleagues
here at the table have said—and to some extent, the way you
phrase the question flies in the face of what Mr. Dell’Orto said earlier
about presumption of innocence, you know. He said—we need
to ensure that there is a presumption of innocence if we are going
to prosecute people. Remember, I am saying that we don’t have to
prosecute them, but if we decide that we are going to prosecute
them, then we have to afford them those rights, which include not
presuming that they are cutting everybody’s heads off and they are
suicide bombers, but that we just buy into this presumption of innocence
deal, and if we can do that, then we can create a system
in which we will really be able to prosecute. But I think that if the
opinion—and particularly Justice Kennedy’s discussion of the
present or the pre-Hamdan commissions makes it pretty clear that
there are some legal difficulties with it that would make simply
this body simply endorsing what had been done before, although
you would fix the regularly constituted part of it, I think you are
going to run headlong into the indispensable guarantees part of
what the Court said.
I think it is a very, very good question. It is a very,
very sound basis upon which to resolve this problem. Either, as Mr.
Dell’Orto said, you start with a massive gutting of the Uniform
Code of Military Justice, which was not created for this type of situation
at all, it was created for our servicemen and women and has
all sorts of rights in there. It does have the equivalent of Miranda
rights in it, or the right to be cautioned that statements may be—
either you start with something that is utterly unworkable and inappropriate
and not designed for this process, or you start with
what the President carefully and thoughtfully put together that
was designed with the experts in the Defense Department to deal
with these circumstances, and then if there is something wrong
with it, add something to it.
So that is—that I do think is the right way to go. It makes perfect
sense. The only two things that the Supreme Court found that
specifically talked about—anyway, that was wrong with the procedures
was a quibble with respect to the standard for the admissibility
of evidence. My own personal opinion is that what the President
had outlined in the commissions made perfect sense, given
battlefield conditions and the difficulty of obtaining evidence and
that sort of thing, and the right to the accused—right of the accused
to see sensitive national security classified information, that
would be insane, in my judgment, to give to terrorists.
So that the two things the Supreme Court found wrong that I
was able to read in the opinion anyway are things that I think you
would agree the President got it right. But if there are some things
wrong with it, then that is the platform, that is the basis upon
which to start.
Thank you very much.
Okay. I thank the gentlelady.
The gentlelady from California, who has spent a lot of time on
this issue, Ms. Sanchez.
Thank you, Mr. Chairman, and thank you, gentlemen,
for being before us today.
I have—I did begin to work on this several years ago after I went
to GTMO and took a look at what was going on, and actually I
have taken a lot of time to talk to the prosecutors who have been
at GTMO and have been working through this, and, of course, I
have some legislation issue.
As you will know, I introduced in 2004 and again in 2005 and
brought it up in our authorizing meeting, and at that meeting I
said, you know, after June in the Hamdan case we are going to be
visiting this. So here we are.
I think that Justice Kennedy and Justice Breyer got it right
when they said nothing prevents the President from coming back
to Congress to obtain legal authority for military commissions to
proceed. And having looked at the Federal courts and looked the
courts-martial and the UCMJ, I do think this is the place to put
it in to constitute a commission in which to do this.
My questions have to do directly with some of the—two of the
areas, the area of evidence and the area, if we get to it—and I
guess we are going to have a second round, maybe I will get to the
other later, but here are some of the questions I have. I am going
to read a couple of them and then have—you will know who gets
to answer to these.
In the oral argument before the Supreme Court, Mr. Hamdan’s
defense counsel argued that military commissions weren’t necessary
because he said that his—that Hamdan could be tried by
regular courts-martial. Mr. Dell’Orto and Mr. Bradbury, if you are
correct in your assertion that routine evidence rules would make
it impossible to prosecute most al Qaeda cases in regular courtsmartial,
and I believe you are correct in that, wouldn’t you expect
that Mr. Hamdan’s first motion in a court-martial would be to suppress
most of the government’s evidence? And wouldn’t such a motion
be made by any competent defense counsel, and wouldn’t it
likely succeed in gutting the government’s case?
It seems to me that this would be the practical effect of sending
these types of cases to court-martial. Would you agree and maybe
expand a little on that? And let me give the other question that I
have, and then maybe you can all answer to this.
Again, the rules of evidence, all of you, including Admiral
Hutson, accept the view that different rules of evidence are required
for war crimes cases. The usual reasons cited for this are
the deviation from gathering, etc. The evidence in war crime trials
would likely include hearsay, evidence without a clear chain of custody,
and interrogation products obtained without Miranda warnings
and other safeguards against coercion. And in this I would say
to my colleague Dr. Snyder, red herring might be when we talk
about Miranda rights on the battlefield, but when you look at Miranda
being required to be used during all the years of interrogation
of a suspect, I think then it is not really a red herring, and
certainly hearsay is not.
So a single rule of evidence in military commission order number
one is that evidence shall be admitted if the evidence has probative
value to a reasonable person. This standard is very similar to the
role of admissibility used by the International Criminal Tribunal
used by the former Yugoslavia which states that a chamber may
admit any relevant evidence which it deems to have probative
value. And, of course, the International Criminal Tribunal for
Rwanda uses the nearly identical standard as well.
In view of the similarity of these standards, there seems to be
an international consensus that war crime trials require broader
and different approaches to admissibility of evidence. So the questions
would be, what additional rules regarding admissibility or exclusion
of evidence are essential to ensure reliable verdicts in military
commission cases? And if it is commonly accepted that coerced
admissions are not reliable and therefore lack probative value, do
you believe that this standard, probative value to a reasonable person,
is sufficient to exclude evidence derived from coercive interrogations?
And how would you fashion a rule of exclusion that prohibits
admission of statements obtained through coercive interrogations?
You probably haven’t given me enough time to
think about the approach I would take as a defense counsel to the
Hamdan. But certainly I would—I would challenge the admissibility
of any statement he has made.
For one of my first challenges, one of my first motions would
have been to dismiss on the motion of a lack of a speedy trial.
Hamdan has been in our custody for three years, four years, whatever
it has been at this point. The military—the rules for courtmartial
require that he be brought to trial within 120 days, if I recall
correctly—again, I am going back some period of time—of the
time that he was put in custody, and so that is one of my very
early motions I would make to get my client out of jail.
So I see great problems. And again, if I were quicker on the
draw, I could probably give you four, five, six, or seven, eight or
nine other motions I would be dropping very quickly in that case
based upon rules of evidence, rules of courts-martial.
Let me ask some of the others to answer some of the other questions,
and I will get back to you to follow on, and to be quite honest,
I had an answer to the third part of your answer, but I can’t
recall right now.
[The information referred to can be found in the Appendix beginning
on page 115.]
Congresswoman, I would say I would agree with
your description of what a defense counsel would do in Hamdan’s
case or another one of these cases if brought in the construct of the
UCMJ. I mean, absolutely that is what I think would happen. All
those motions would be interposed, and chain of custody of evidence,
and all of those issues that would impede a trial under the
UCMJ framework would have to be addressed, and it would be
very difficult to go forward under those conditions.
I wouldn’t say that the standard needs to be that none of these—
that prosecutions would be impossible. I think the standard is that
it is as a general matter a judgment. In this case it would be a
judgment by Congress working with the Administration and framing
legislation, a judgment that the use of those procedures is impracticable
as a general matter in these kinds of cases.
As to the coercive statements point, first of all, as the rules of
the military commission process currently in place make clear, and
as our treaty obligations suggest, we do not use as evidence in military
commissions evidence that is determined to have been obtained
through torture. That is simply not admissible if it has been
obtained through torture. And that is consistent with our treaty obligation.
It is a worldwide policy for the United States, and it is reflected
in the rules currently for the military commissions.
But when you talk about coercion and statements obtained
through coercive questioning, there is obviously a spectrum or gradation
of what some might consider pressuring or coercion short of
torture. And I don’t think you can make an absolute rule. Again,
I think it needs to be a judgment that is made by the fact-finder,
and the way that that is addressed in the Detainee Treatment Act,
which addressed judicial review of the combatant status review tribunals,
those tribunals that judge that the detainee is an enemy
combatant at the outset of the process, the way Congress dealt
with that was to say that the commission is to weigh the probative
value of that evidence, basically to weigh the probative value
against the undue prejudice that might occur to the process from
the use of evidence that may have been obtained through coercion.
It didn’t create an absolute exclusionary rule.
I think an approach like that is certainly more appropriate because
arguments will always be made—when you don’t have something
like Miranda rights, arguments will always be made that, oh,
the questioning was coercive, even when we can agree it doesn’t
amount to torture, it doesn’t—it doesn’t violate some fundamental
standard of conduct that might apply. So you need—again, it is an
area where some flexibility is needed.
It sounds to me like you are saying that the minimum
value would be the probative value to a reasonable person,
which is what we see reflected in the standards, quite frankly, of
the other tribunals that we see around the world with respect to
Yes. I think that is right.
And I think it is very important for us to understand
because someday we will catch Osama bin Laden, and then
we have to decide how we are going to try him. And this is why
these hearings and what we do becomes so important.
Yeah. If I may, I would draw a bright, clear
line with coercive evidence for all the reasons that we draw that
bright clear line having to do with the probative value of it, but
also having to do with inhibiting interrogators or police, civilian
context, from engaging in that kind of activity. I think that that
is an important thing, and I also think that it is important for the
reputation of the United States internationally.
As I am sure you know, there is a raging debate with regard to
the impact of non-U.S. law on the United States. I kind of fall in
the middle of that. I guess what they are doing in international tribunals
is interesting to me, but certainly not determinative. I
would add to the probative value, it has to—you know, it has to
have that at least, but I would add apparent authenticity and validity.
There has got to be some standard by which the evidence is
judged and admitted.
We can’t just throw everything in there and
then let the finder of fact sort through it. That is the reason you
have a judge, which is one of the reasons that using a court-martial
kind of system with modifications has value, I think.
The gentlelady could reserve. We will have the
responses to the last—her last question here in the second round
if we could, and let’s go to the gentleman from Texas, Mr.
Thank you, Mr. Chairman.
Mr. Dell’Orto or Mr.
Bradbury, could you describe for us what
the President’s plan is that you simply want us to put into law?
And also, what is the legal phrase for applying—creating a crime,
and then say you were committed before the law was put in place.
There is a legal phrase that I have lost.
Ex post facto.
There you go. Would these changes—ex post facto
apply to the detainees in Guantanamo if we do, in fact, make these
changes in the law?
If I could say yes, they would apply, and that
would not be an ex post facto, because ex post facto concepts go to
the substance of the law, not by the procedures by which you are
tried. So it would not be—if you are creating a brand-new crime
and saying now people are subject to a brand-new crime, you can’t
apply that ex post facto to a U.S. citizen under our Constitution.
But here we are not talking about creating the substance or elements
of crimes. We are talking about the procedures that would
go into the bodies that would try those persons for those crimes,
which are war crimes, crimes under laws of war.
Okay. Would one of you describe the President’s
Well, I think the plan is to work with Congress.
No. Oh, no, I am sorry. The tribunal that was
struck down that you are saying we need to codify, would you describe
for us what that tribunal currently looks like had it not been
The current tribunal that has been struck down?
Again, it has many of the fundamental—it would be very recognizable
to most people in terms of many of the things that are already
incorporated. You know, we have a presiding official who is a military
trial judge, an experienced trial judge, the same judge who
would be trying cases in our courts-martial process.
We have the rule of evidence that we have already described,
which is a very—which is a more general rule than we are used
to in our civilian practice that is—admits a broader swath of evidence.
We have appellate review in the review panel that has—of decisions
that come out of the tribunal that includes four very distinguished
individuals, Judge Griffin Bell, former Attorney General of
the United States. We have Secretary—former Secretary of Transportation
William Coleman. We have Judge Biester, who is a trial
judge in Pennsylvania, and we have Chief Justice Frank Williams,
who is the Chief Justice of the Rhode Island—Rhode Island Supreme
Court as the four members who constitute the review panel
of the appellate court, if you will, of the results of these trials.
We have provisions for interpreters. We have provisions for ensuring
that the accused is presented the charges which he will be
facing well in advance of trial.
We have provisions of assignment of military counsel, the same
counsel—the same type of counsel who would defend our soldiers,
sailors, airmen and marines and coastguardsmen, and they are
courts-martialed, and they are defined as military defense counsel
for the accused detainees. The accused detainee has the right to obtain
a civilian counsel, assuming that civilian counsel meets certain
qualifications that are set out in the rules. We have a requirement
that for any charge for him to be convicted. Two-thirds of the members
who sit on the court panel, which includes the presiding officer
and up to, I guess, six other members who would be military officers
just as we have in our court-martial process, would be the
ones who would adjudicate guilt or innocence, and a judge’s sentence
ought to be reviewed by the review panel—the appointing authority
of the review panel when all of that is done.
I don’t know if that gives you a sense of sort of the basic framework.
I could go on with much more detail if we had more time,
I would say, Congressman, that fundamentally
these are procedures that are built on past military commissions
that have historically and traditionally been used by the United
States during times of armed conflict. And the use of military commissions
and procedures like that go all the way back to George
Washington when he was general during the Revolutionary War,
and it has been a tradition through armed conflicts in our Nation’s
history of using traditions like this, although these commissions
add additional procedural protections that have not been in past
And I would also add, Congressman, since I was
there at the start and took part in much of the drafting process,
that we looked at the Manual for Courts-Martial as we were putting
this together to borrow from it many of those things that are—
that are sort of at the foundation of the UCMJ and the Manual for
Thank you, sir. Appreciate it, Mr. Chairman.
Thank the gentleman.
And the gentlelady from California, Mrs. Tauscher, is recognized.
Thank you, Mr. Chairman. Thank you for being
I think we all can stipulate that we are with Common Article 3
interested in dealing with the potential of finding Osama bin
Laden and being able to bring him to trial in a trial that we all
understand is one of transparency, and where evidence potentially
is gathered, and where we can find an adjudication process where
the world sees Osama bin Laden put to trial in a fair way and a
timely way, where he is potentially found guilty, and then he has
a sentence that is commensurate with his heinous crimes. And I
think that is the place we all have to start from.
As my great colleague from California, Ms. Sanchez, has said, we
have to kind of look to the future as we look into the past as we
try to preserve all the great things that we have. And I am personally
for looking at the reforming of the UCMJ and making sure, as
Admiral Hutson has suggested, that we have things that have
worked and build on them and move forward.
I think one of everyone’s concerns is this issue of—that we are
hearing bantered around in the press that potentially classified information
would have to be made available, as both Mr. Dell’Orto
and Mr. Bradbury have suggested, to defendants, and that, of
course, would create a national security crisis for us. But I think
we—the analysis that I have been shown is that both the Classified
Information Procedures Act, CIPA, and the military rules for evidence
for courts-martial, which is modeled after CIPA, protect the
disclosure of any classified information whose disclosure would be
detrimental to national security. Apparently this would apply in
anything that we do going forward that would include reform of the
UCMJ for potential military commissions. Do you all agree?
Congresswoman, let me make two brief comments
on that. One generally. When we try these defendants in
these commissions at some point relatively soon, we must be mindful
of the fact that we are trying them while the conflict continues.
It is not as though we were conducting these trials at the end of
World War II where much information that might have been highly
sensitive, highly classified, that we certainly did not want to reveal
to the enemy, would not be as critical a piece of information. Today
if we are in the classified arena with some of this information,
whether it is information collected through national technical
means or sensitive sources and—sources that we have on the
ground in other countries, that is—those are key ways that we are
getting information about this particular enemy.
But that is the challenge of the asymmetry of
Exactly. And we can’t let him use our process,
our due process, our legal system as one of his other weapons as
he carries on this fight.
Another factor to consider with respect to the military rule of evidence,
I think it is 505, as Admiral Hutson indicated.
That is right.
With respect to handling classified information,
normally when we are trying somebody in or a soldier in our
courts, we are trying him for something he has done with evidence
that he has already had access to. He has mishandled that information.
He has given it over to the enemy. He has been derelict
in the way he handles it, and so he has already seen that evidence.
We are not presenting to him anything that he hasn’t already seen.
And so the concern there is not that the accused doesn’t see it, because
he already has seen it, but that the world doesn’t see it.
The third point I would make, and I am sad to have to say this,
our track record in military courts-martial, in trying cases in which
there is classified information, is not particularly good. We have
had success in some cases, but I will tell you both at the trial level
and at the appellate level, if you look back through the case histories,
the histories of those cases, we have on balance done a much
more poor job of prosecuting people than we would—than we have
as a general proposition in cases that don’t involve classified information.
I think this is really an area of jurisdiction where
we have to be enormously creative at the same time that we have
to deal with the rule of law and the law of war. And this military
rule of evidence 505, as you suggest, is one of those sticky wicket
places where I think we are going to have to have counsel from
various venues, Admiral Hutson. I hope you will help us with this,
too, Mr. Olson.
But for the record if you would each get back to the committee
and me specifically as to your suggestions on how we deal with this
issue, because obviously this is a baby in the bath water issue. We
don’t want to have to divulge sources and methods, other operations
that are going on, people in theater, identities of people at
the same time that we are trying to adjudicate in a swift and in
a fair way these potential captives.
So I really want to yield right now because I know we have other
people, but I think this is a very important issue. If anybody ever—
if anybody else has a quick comment, I am happy to accept it.
[The information referred to can be found in the Appendix beginning
on page 119.]
If I may, let me just say that I think it is very,
very difficult for the United States of America to say to anybody,
we know you are guilty, we can’t tell you why, but there is somebody
that says you are guilty; we can’t tell you who, but we know
they are reliable; we can’t tell you how we know that, but you are
Thank the gentlelady. The gentleman from Connecticut,
Thank you, Mr. Chairman, for this hearing, which
I consider to be historic; times of stress or times when our values
really need to be preserved and protected. And I remember after
the Boston Massacre in 1770 in Boston, Massachusetts, John
Adams defended the British Redcoats. It was an unpopular decision
for him to make, but that is what he did. And during World War
II, 1942, April, May of 1942, when Hitler sent eight saboteurs to
Florida and Long Island, Kenneth Royal, an Army colonel, took the
very unpopular position of defending those saboteurs, six of the
eight of whom were electrocuted here in Washington, D.C. So I
commend the Chairman and the Ranking Member and the members
of the committee as well as the panel for taking on this difficult
I served for over 37 years in the U.S. Army. I consider the UCMJ
as something that was created for us as military personnel, and I
can’t see clearly the application to enemy combatants or terrorists,
as one of my colleagues said. These are folks that do not respect
the rules of law. They take hostages, they kill noncombatants and
innocent civilians, they cut people’s heads off, et cetera, et cetera.
So I guess my question goes to the issue of what kind of model
is going to work best. A colleague of mine who is a Coast Guard
attorney has written an op-ed calling for a national security courts
system, which take a little bit from the UCMJ and a little bit from
military tribunals, and what he refers to is a new kind of law for
a new kind of war. A new kind of law for a new kind of war. We
have our traditional criminal courts. We have our tribunals and
commissions. We have our UCMJ. But it occurs to me that we are
in a new kind of war. We are trying to maintain our respect for
our values in dealing with people involved in this new kind of war,
and perhaps it is incumbent upon the Justice Department, Defense
Department, and this Congress to shape an altogether different
model for differing justice in this framework, and I would be interested
in your comments. But before I hear the comments, I would
like to ask the Chairman if we could insert this op-ed piece into
Without objection, we will put it in.
[The information referred to can be found in the Appendix on
Gentlemen, a new kind of law for a new kind of
Mr. Simmons, I am generally familiar with
that kind of concept, and I find it very intriguing. I am not sure
it is the most efficient way to do it. And I take your point about
The UCMJ, as it is presently constituted, is clearly there to protect
the rights of U.S. servicemembers and to efficiently prosecute
them when they need to be prosecuted, and has done that very well
over the years. What I am suggesting is that you could build on
top of that an enduring, regularly constituted court to do the same
kind of thing that that proposal would do. I think that, you know,
certifies the sort of court—is certainly possible to create a court
that is regularly constituted because this is the body that authorizes
it, and that it protects the fundamental, you know—the words
out of Article—Common Article 3 that we have been talking about,
considered—the judicial guarantees considered to be indispensable
by civilized peoples. A court, some other kind of court, could do
that, absolutely, sir.
And you reference the FISA Court that was created
in the 1970’s to deal with a specific problem.
Congressman, I will jump in and say I agree with
you completely. It is a new kind of war, and it does require a new
kind of rules. That is what the President was trying to do, I think,
and the Secretary of Defense with the existing military commission
structure, and now what this Congress needs to focus on, I think
a military commission-type approach is the right way to go.
I think that rules that will need to be focused on, obviously, like
use of classified information, I don’t believe that using the Classified
Information Procedures Act or CIPA is the right way to go.
That is designed for criminal trials of U.S. citizens in U.S. Article
3 courts and the use of classified information in that context, and
it really impedes the government’s ability to go forward with prosecutions,
which in these circumstances ought to be allowed to go
forward under different rules, and we can work on what those rules
ought to be.
The final thing I would say in terms of setting new rules for this
war on terror is that we really think Congress needs to do something
to bring certainty and clarity to the application of Common
Article 3 and some of the vague phrases in Common Article 3 that
I referenced in my testimony, because an important part of what
needs to be done to bring sureness and certainty to those folks on
the front line who are handling detainees—because again, the concepts
in Common Article 3 have never been applied previously to
an international conflict with a terrorist organization like al Qaeda,
and we need to set those rules going forward for the United States,
and we think they should be defined by U.S. law.
I thank the Chairman, and I thank the panel.
Thank the gentleman.
The gentleman from New Jersey, Mr. Andrews.
Thank you, Mr. Chairman.
In listening to the testimony and reading it this morning, it appears
to me that we have two points of consensus and two very
practical dilemmas. First, I think there is a consensus that none
of us wants to treat Osama bin Laden’s bodyguard the way we
would an American citizen accused of car theft. There is just no
sense that the normal rules ought to apply.
And then second, I don’t think anyone is saying that we should
run an arbitrary process that does not command respect around
the world as being transparent and fair. I think we are all saying
essentially the same thing. The practical considerations I would
like to focus on go to the discovery problem and the Miranda warning
Mr. Bradbury, I want to ask you a question about the discovery
problem. Let us assume that we have a person who is not a U.S.
citizen who is accused of participating with al Qaeda, and among
the pieces of evidence against that person is testimony from a peer
that this person has been engaged in terrorist activity. Also on the
record is the fact that the accuser of the person has some normal
garden variety grounds to be biased and prejudiced against that
person. Let’s say there has been a romantic entanglement involving
three people or a dispute over a commercial dispute; someone has
a motive to tell a lie about the person. Should that fact be discoverable
by the defense in the military commissions that we are talking
Well, in your question, Congressman, is the other
person who has given the evidence an intelligence source for the
United States who needs protection? Because that raises yet another
set of issues. But assuming that is not the case, then the
identity of that person would be made known to the detainee defendant
and his counsel, and the statement that may have been
taken from that person—the person let’s assume is not available to
appear at the military commission trial, so you are going to need
to use some kind of hearsay statement, some kind of sworn statement
or other statement that can be verified, and the fact-finder
determines it is probative, it is reliable to rely on it, then I think
in that hypothetical that the detainee defendant would—if he
knows who that person is, would be able to raise issues about the
bias of that person or the accuracy or correctness of the statements—
of the statements made.
If that person is an intelligence source for the United States,
then that raises additional issues that would need to be dealt with,
because information about an intelligence source cannot—we cannot
allow that to get out to other terrorists who wouldn’t take very
long to dispatch that.
What if it is the first assumption, and the accuser
is not an intelligence source, but the accuser’s identity was discovered
by an intelligence source? So, in other words, in the fact-gathering
process to make charges against the detainee, an intelligence
source tells our intelligence agencies, you know, yeah, this guy over
here has some interesting information about the detainee. What
Well, I think there would be a way consistent
with fundamental fairness not to have to disclose to the detainee
in these proceedings such that we might compromise our intelligence
sources the providence of that—of that chain, in other
words, how we came to that person, because that would in and of
itself reveal a confidential intelligence source. But the tribunal may
know that and judge that it is reliable.
If that issue itself were litigated in discovery, it
should be the tribunal who determines whether it is a discoverable
fact or not?
In the first instance, I think so, yes.
And that would be an in camera proceeding?
Well, in terms of the intelligence information
that is at issue, if there is any, the classified information could be
presented to the tribunal in an ex parte, in camera process that,
in fact, is done, for example, with the International Criminal Tribunals
for Rwanda and Yugoslavia where lots of times you have state
secrets of the various nations involved or that may be very sensitive,
and defendants may try to get discovery of that sensitive information,
and in those tribunals it is available to go ex parte in
camera to the tribunal to make a case for not presenting that information.
Were the discovery results you just articulated included
in the order that was invalidated by the Supreme Court?
I believe they were, Congressman, to a large extent.
I mean, the prosecution is obligated to provide to the defense
all the evidence it is prepared to present as part of the trial, and
to the extent you get into these collateral issues of the identity of
the—of the intelligence source themselves that must be protected,
I mean, that information I would think would be part of the file
that would be—that is presented to the defense counsel.
Admiral Hutson, I want to ask a question about
Miranda warnings. Is it your understanding under the military justice
code that a person who is suspected, once the suspicion is established,
it triggers the right to be represented by counsel; is that
Do you think that right should extend to suspected
detainees; they have a right to have counsel present with
them during their interrogation?
I think that once you take them—you know,
we keep talking about the battlefield, and the world is the battlefield
in some respects, but once you take them from where they are
and put them at Guantanamo, if you are interrogating them for
purposes of prosecution, then I think you do. If you are interrogating
them for intelligence purposes, and you may be able to draw
a bright line between the two where the intelligence—the intelligence
interrogators are not sharing information with the prosecution
interrogators. So I see a difference in that regard.
The bright line seems awfully difficult. If you ask
the detainee whether he was part of conversations about a possible
plot to blow up the Holland Tunnel, is that an interrogation for the
purpose of prosecution, or is it an interrogation for the purpose of
Well, you ask them two different times. One
time you ask them is the intelligence inquiry, and the other time
is the prosecution inquiry.
Who decides whether the lawyer should be
present before the interrogation?
I think the rules decide that, the rules that
you set up decide that.
Congressman, if I may, I think this—just to illustrate
this would be entirely unworkable. I think when we have detainees
at GTMO or elsewhere in the war on terror, we need for
intelligence purposes to be able to question them in an unfettered
way, and when we have exhausted the intelligence we think we can
get, and we think we have got a case to make, we can then initiate
a war crime prosecution, and at that point they can have counsel
and they can have the availability of counsel, and we can move forward
with a fair process. But we cannot intermix the two and try
to draw that line because it is just going to impede our ability to
protect the country through vital intelligence gathering.
Thank you. I see my time has expired. I appreciate
I thank the gentleman.
Another gentleman from New Jersey, Mr. Saxton.
Thank you, Mr. Chairman, and I think it is great
that we are holding this hearing today. It is very important set of
subjects, I guess you would call it.
I would like to ask a little bit different question, if I may. Based
on my observations, the necessity for collecting information in prosecuting
this war is historically different than it has ever been before.
During the process of carrying out our oversight responsibilities,
it seems to me there are certain conclusions one can come to
in a practical sense, and one of those conclusions is that detainees
provide a constant flow of information that is necessary for us to
conduct successful operations.
They are not the only source, but they are one of the sources and
an important source. It has been suggested here today by Mr.
Hutson, and I respect his opinion, that the UCMJ has been used
as kind of a model for prosecutorial proceedings. Given the need,
that we all know about, to collect information on this enemy, what
effect would the adoption of a process such as that suggested by
Mr. Hutson have on our ability to collect information?
Sir, I don’t think it would have a significant
effect one way or the other. You can prosecute them first, and interrogate
them, get the intelligence information after you have convicted
them if they are convicted. You can get the intelligence information
and then prosecute them.
We run again, and your question points up the point that Congressman
Hefley made earlier about conducting the war and at the
same time that you are conducting the war, you are prosecuting in
a judicial sense the people that you have taken off the battlefield,
and that creates its own difficulties.
But I think that we run into serious problems when we try to
combine the two, the warfighting on one hand and the prosecution
on the other. If we want not to prosecute them, that’s fine. But if
you are going to prosecute them, I think that you need to do it in
accordance with the generally accepted rules.
Congressman, I think, again, with respect that
points out the complete unworkability of applying in whole cloth
the UCMJ procedures to military commissions. If the proposition is
we have to try them and convict them and get them in prison as
a convicted war criminal first before we interrogate them to get
vital intelligence then we put Americans at risk and our soldiers
at risk because we are not getting intelligence that we may need
and we may need it right now. That has to come first.
Whatever the procedures that are in place and the lines that are
drawn, they can’t impede that vital necessity. And so I think a lot
of the other specifics we have talked about here today help estab35
lish and clarify why the various procedures need to be flexible in
certain respects to make this all work.
Congressman, let me get back to the premise of
your question because I think it is important. What is different
about today than other combat we have engaged in in the past?
Particularly going back to World War II and Korea, as a matter of
general intelligence, you sort of know who the enemy is, who is
arrayed on the other side of the line of battle. You know his order
of battle. You know his division commanders, his battalion commanders.
You probably know down to the company command level
who these guys are.
And when you take captives during that process, you generally
know that the private, the corporal or sergeant doesn’t know much
beyond what happened that day or what may be planned for tomorrow.
If you get the general, you get the brigade commander who
is a colonel, he is going to have more information. You are going
to know to focus your information on him.
When we pick up these guys, and Hamdan is probably a classic
example—if he goes by his military occupational specialty, he is a
driver. And what does that mean? He technically probably wouldn’t
know much and probably wouldn’t be doing much as part of the
battle, if you will, or the war, and yet it turns out he happens to
be the driver for bin Laden. He happens to be a guy who moves
weapons. He happens to be a guy who I think runs money as well.
He does many, many things.
You cannot conduct this fight without doing interrogations of
these folks, but you can’t separate the nonactors from the actors in
this. You have got to be able to talk to all of them, and you have
got to do it, as Mr. Bradbury says, right now because that little
gem of intelligence that guy may have about a cell phone number,
about a safe house location, may lead you to a very, very significant
find or very, very significant target.
And so we have from the earliest days said our goal is to get intelligence
from these folks. If we can prosecute them down the road
and they have committed sufficiently serious acts to warrant prosecution,
we will do that. But we are going to have to do everything
we can to grab intelligence from them because this is a different
type of war and the intelligence gathering is absolutely critical.
Mr. Chairman, if I could just suggest one of the
things that we might want to do as a committee before we make
any decisions on how to proceed is to have a session similar to this
in a closed session. I think if some of the members who maybe
haven’t had the opportunities that I have to view and understand,
and maybe a lot of our members have, but for those who haven’t
had an opportunity to really sit down and look in detail at individual
cases, this becomes an even more important subject to the national
security of this country. And so if I may just make that suggestion.
Let me say to my colleague from New Jersey, I
think that is a great recommendation and let’s do it.
Let me, if I could, just impose on my colleagues with the last
question you asked because I think it is not entirely clear to me.
Is the panel saying that if this person that you pick up in combat
operations, in being interrogated says, yes, I’m a bomb maker, and
I made the bomb that blew up the such and such, and you extract
that information pursuant to your battlefield interrogation or
shortly thereafter, that under the UCMJ that would not be admissible
in a later prosecution?
Mr. Chairman, my argument as a defense counsel
would be the following: When you picked him up, you, the soldier,
the specialist, the corporal, the sergeant grabbed him by the
scruff of the collar and took him into captivity, you had an idea
who this guy was. You knew he was a bad guy; you knew he was
an unlawful combatant. You knew based upon the intelligence
going in you were likely to find somebody of this character. And he
told you he was a bomb maker.
Now you asked him about that; you asked him who he was. You
asked him what his job was. I would argue that you as a soldier
because you are subject to the code were obligated upon suspicion
this guy was an unlawful combatant generally, regardless of what
that might be, that you are obligated to advise him under his
rights under article 31 of the Uniform Code of Military Justice.
Because he at that point has become the focus
of suspicion of criminal activity.
Again, if you want to carry this to the extreme,
as I would as a defense counsel, I would argue any one of these
guys because they are all unlawful combatants. We have yet to find
on the battlefield in Afghanistan a lawful combatant. They are in
theory all guilty of unlawful belligerency which would trigger the
obligation to advise them of their rights, in my opinion.
I think Mr. Hutson may have a comment.
Thank you, sir.
Let me just ask, and I want you to go first, is
it the position of any of you that that should—that should a person
give an admission like that, I’m a bomb maker, upon a battlefield
interrogation, if you will, that that should not be admissible in a
Go ahead, Mr. Hutson.
Thank you. If you were to superimpose UCMJ
in total precisely as it is right now, that would be the unfortunate
result. What I am suggesting though is that you modify it in such
a way so that that would not be the result because I don’t think
any of us would find that to be acceptable.
Okay. So nobody recommends that.
The gentleman from New York, Mr. Israel.
Thank you, Mr. Chairman.
Mr. Chairman, much to my mother’s shame I never went to law
school. I am not an attorney, which puts me at a decided disadvantage
from a legal perspective, but it also gives me, I think, the advantage
sometimes relying on common sense to sift through some
of these complicated issues.
While I am not a lawyer, I am a student of history, and one of
the things that concerns me in this debate is repeated references
to the fact that we need to understand that there are enemies that
we have and adversaries and threats to the security of the state
and threats to our national security interests. We all understand
that, and all of us on this committee are strongly supportive of an
aggressive military response to those enemies, but the fact of the
matter is that every single repeal or diminishing of essential legal
and human civil rights in history has always been based on the argument
that there are enemies of the state.
The whole experience of national socialists was to build new
courts, peoples’ courts, special courts, military courts based on the
argument that there are enemies of the state, there are enemies
within, and we have to protect ourselves from those enemies.
I am not arguing that our legal process echoes their legal process,
but we have in our own experience and in this very hearing
alluded to legal decisions made in our government that protected
the interests of the state against adversaries at the expense of
Japanese Americans were interred and detained. General Grant
expelled entire populations from Tennessee based on the concern of
national security. Rights were impinged upon in the 1950’s based
on threats of Communism.
These decisions to reduce, repeal, diminish rights have never
been made based in a vacuum. They have always been made based
on the national security argument, which is why I think we have
to be very careful in the rhetoric that we use.
One of the concerns that I have, Mr. Dell’Orto, which Mr. Snyder
has already raised is the suggestion that is anyone in fact supporting
Miranda rights after a Marine kicks in the door, as you said;
whether anybody is suggesting that the legal process has to allow
for fingerprinting and the traditional evidence gathering that we
experience in our own civilian justice system.
So my question, Mr. Dell’Orto, is, who is making these proposals?
Where have you heard any Member of Congress suggesting that we
need to offer Miranda rights to someone after we kick in a door in
Afghanistan or Iraq or elsewhere?
Congressman, I am not suggesting that any
Member of Congress has suggested that. What I am suggesting is
that to the extent that some have said that the court martial process
is, as currently configured, is the preferred method of dealing
with the trials of unlawful combatants, that that is a model that
we should follow without change I think is the problem that I suggest
exists. So I am not attributing that to any individual. I will
say no specific individual.
I have heard, and no member of this body that I have heard, but
I have heard some say and I think it may have been—I forget
which congressman earlier mentioned the argument that the defense
counsel for Hamdan made at the Supreme Court, that the
court martial system is the way to go, that he should be tried by
a court martial. That is ludicrous.
Now here is the question. If we do agree that such things as Miranda
rights, such things as very well-defined rules of evidence
that require chain of custody, that require all these things that we
know from our courts, from CSI Miami, from anything we read in
the paper on any given day, if we think that there needs to be
modification, then how do we get there.
I am sorry, my time is expiring. That is the second
question I wanted to raise. I have heard different panelists talk
about modifications, but it seems that we are talking in opposite
directions but kind of agreeing on the same thing. Mr. Bradbury
suggested that we not use the UCMJ in whole cloth, but that is not
what Admiral Hutson is suggesting. In fact, his testimony said that
specifically this is not to say, however, that the court martial system
that is contained in the UCMJ and MCM couldn’t or shouldn’t
be modified in some narrow and specific ways. What I am trying
to figure out is, why are you both saying opposite things but agreeing
on what has to be done at the end of the day?
Let me say, Congressman, that that is where we
are today. Because of the Supreme Court’s decision in Hamdan, the
military commission process is dead in the water. We cannot move
forward according to the court’s judgment unless the President
uses the Uniform Code of Military Justice and the court martial
process. That is what the court said.
So that is where we are. And the court said, because it read the
statutes of the Uniform Code to require uniformity, the President
has to justify any variation and the court wasn’t convinced with the
justification the President offered. So where we are today is we are
stuck using the Uniform Code unless we can justify variations or
unless this Congress sets out rules and procedures that allow us
to vary from it.
There may be agreement, and it sounds like there may be on
some fundamental points so we can move forward very quickly
with legislation which is terrific, but as of right now, the court has
said the President has to use the Uniform Code of Military Justice.
That is why we are using that as the thing we need to talk about,
because we need to justify those variations.
My point is, do we take away provision after provision
from the Uniform Code of Military Justice and the Manual
of Courts Martial to get to that medium, wherever it is? Or do we
take the existing process the President has already proposed and
say either the way it is right now or with minor tweaking there
you can get to that result faster and easier. And that is all I am
I do have a concern though if we start from the former, that is
dismantling the UCMJ or revising it, we will then be disrupting
that particular process, which again has a very, very important history,
a very important function with respect to our own service
members, and I would hate for us to build a body of law based
upon the UCMJ that then starts to cause difficulties in the application
of that system with respect to our own service members.
Thank the gentleman. The gentleman from
Michigan, Dr. Schwarz.
Just as an aside, I was raised on Fort Custer,
Michigan, Mr. Dell’Orto, during World War II, where 6,000 German
prisoners, mostly Afrika Korps, were housed, and had very
close contact with them because my father, a lieutenant colonel in
the Army Medical Corps was fluent in German and was called frequently
to deal with medical problems that they might have, and
then in another life, one of my jobs among many jobs in my second
tour of duty in Vietnam was to take prisoners that were held by
the South Vietnamese, North Vietnamese, Viet Cong, get them out
of the hell hole prisons that the South Vietnamese had into American
custody where they were treated exceptionally and sometimes,
if they were of no value to us, simply released, as we have done
with, I believe, 250 of the detainees in Guantanamo.
That said, I can’t ask a question of high nuance about the law;
I am not an attorney. Very simply, to get to the lowest common denominator
of this hearing this morning, my belief is that this
learned panel of attorneys would say that it is the job of the Congress
as the result of the Hamdan decision to pass legislation
which sets up a body or bodies to deal with the non-national actor
detainees that the United States might take in any conflict that we
find ourselves now or the future in the Global War on Terror. Is
that an appropriate and correct premise?
Absolutely, yes, sir.
That is what the Congress should do. That is the
Congress’s job. That is what the court is telling us very clearly in
I think the court is saying that this for too
long has been a discussion between the executive and the judiciary,
and it needs to have Congress right smack in the middle of it.
Thank you very much because that is what I get
out of it as well, and I think it is very simple. That is the lowest
common denominator. That is where the rubber meets the road.
That is what we should do. And I have no further questions. I
would just say to Mr. Bradbury, Go Blue, and to Admiral Hutson,
Go Green. Michigan and Michigan State.
Thank you, Mr. Chairman. I yield back.
Mr. Larsen is next.
Mr. Chairman, because I think the committee would
benefit from someone known as Judge rather than Rick, I would
like to yield my time to Mr. Butterfield of North Carolina.
Thank the gentleman for yielding and thank
the four of you for your testimony today. This is certainly an important
case, and it is one that we need to resolve very quickly. I have
taken the time to read the Hamdan decision. It is 73 pages long.
I have read it multiple times. We were out last week, and I had
some free time. And I took my time and read the decision and the
dissenting and concurring opinions.
Even though, at first blush, the opinion may appear to be very
complicated, when you filter through all of the discussion, it is really
a very simple case, and so I agree with Admiral Hutson that this
should be easy. The whole world is watching us.
I was in Europe last week with 200 or 300 parliamentarians
from the European Union, and I can assure you, they have great
interest in this case, and they are watching very closely to see if
we administer justice fairly to these individuals who have been detained.
You know, the Uniform Code of Military Justice is a very comprehensive
piece of rules. I think it is something that we can certainly
use, probably not completely, but we can certainly use the
UCMJ as a template to begin developing the rules of procedure for
these types of cases.
Let me start off by asking the representative from the Department
of Justice, Mr. Bradbury, what is your definition of a regularly
constituted court. There is a lot of discussion in the opinion
about that. What do you consider to be regularly constituted?
Well, I don’t know that there is a settled international
interpretation of that phrase. I think, in the court’s opinions,
there seem to be a coalescing of view that if it is set up by
statute, it is regularly constituted. So I think it was our view that
the recognition and preservation of jurisdiction for military commissions
that already is in the Uniform Code and that we think
was implicitly in the authorization for the use of military force
made them regularly constituted. The court didn’t see it that way,
at least not in the form the President set it up. But I think anything
this body sets up by statute or recognizes by statute here will
be by definition regularly constituted for purposes of common article
The Supreme Court also talked about the judicial
guarantees that are recognized as indispensable by civilized
peoples. Can you give me a brief interpretation of that?
Well, it was not a majority of the court that addressed
that issue, it was Justice Stephens in his—the portion of
his opinion that was only a plurality for four justices. In that portion
of his opinion, he went off and looked at other provisions of
treaty law that have not been ratified by the United States to tried
to pull out of those concepts of customary international law.
But Justice Kennedy did not see a need to join that part of the
opinion. So I don’t think we have an opinion from the court on
what that phrase means.
What do you think it means?
I will have confidence—it really I think just refers
to procedures that ensure fundamental fairness measured
against standards not of the U.S. article 3 courts in criminal prosecutions
or even the UCMJ which is even more protective but looking
at what nations around the world view as indispensable. I
think there is a minimum common denominator. I have full confidence
that any set of procedures that Congress adopts or ratifies
by legislation will satisfy that standard. I will also say that I firmly
believe that the procedures that have been used and set forth in
the military commission process that the Secretary of Defense designed
also satisfies that standard.
There was also some discussion in the opinion
about the crime of conspiracy not being triable by a commission.
What does that do to our military if we cannot in the future try
conspirators in the commission?
Again, Congressman, that also was a portion of
Justice Stephens’ opinion, which was only a plurality. Justice Kennedy
did not join that part, that was part 5 of Justice Stephens’
opinion. That was only a plurality of four in which he concluded
that conspiracy was not a charge available under the laws of war.
I think Justice Thomas did a very good job in his dissenting opinion
in explaining why that is not the case; that in fact conspiracy
is a recognized charge that can be brought under the laws of war,
and of course, in this conflict, we are going to have a very difficult
time convicting many of these folks of war crimes if we cannot convict
them on the basis of conspiracy because this is an international
conspiracy, al Qaeda, and many of them have joined that
conspiracy and actively furthered it through overt acts that they
may not have—obviously, they weren’t in the plane that flew into
the World Trade Center on 9/11.
Looks like we have run out of time. Let me
just conclude by asking you this: Do you contend that commission
order number 1 is sufficient to comply with the Supreme Court
holding if we were to approve that?
We think if Congress in its judgment approved
it, the Court would respect that, and it would be sufficient to comply.
I am not suggesting Congress just rubber stamp. I think when
you look at it and look at all these issues we have talked about,
it is open to you to come to the conclusion that each of the procedures
that the President and the Secretary of Defense settled on
in military commission order number 1 satisfies the standards and
that you are comfortable with that, and if you were to do that, I
believe backed up by statute and Congress, that would be upheld
by the court.
Mr. Chairman, I have a unanimous consent request
that I be allowed to include a statement in the record of this hearing.
[The prepared statement of Mr. Udall can be found in the Appendix
on page 98.]
Thank you, Mr. Chairman.
Since we are pushing up against a vote, I am going
to yield my time and recognize, I believe, next Mr. Ryan.
Thank you, Mr. Chairman. I want to thank the panel,
too. I think this has been a really helpful discussion for us, and I
know the work unfortunately or fortunately is just beginning here.
So we are going to certainly rely on you in the future.
I think hearing the discussion today, Mr. Chairman, that we
have a great opportunity here and as the Admiral has stated, an
opportunity to highlight what is best about the United States and
why we are different.
One of the questions I did have to the Admiral is, as we are talking
about the intelligence-gathering proposition, the other panelists
have said this somehow could be impeded by some of the changes.
How do we ensure that we can protect these rights that civilized
societies may agree upon but at the same time gather and get the
information we need?
I think with careful draftsmanship you will be
able to draw a distinction between the purposes and also, in answer
to the earlier dialogue about the battlefield kinds of statements,
permit them in. In my mind, there is a big difference between
what goes on in the hootch, in the battlefield, and what goes
on at Guantanamo.
Where you have taken them off the battlefield, you have got
some time. They are no longer an immediate threat. All you are
looking for is information. You are not protecting yourself personally
or protecting your fellow soldiers.
You create a regime by which—because I agree, intelligence is
important. Valuable, usable intelligence is important. You create a
regime by which that is derived and then you deal with the military
So you are not saying, as we pull someone off the battlefield
in Afghanistan or in Iraq, that immediately we are going
to have—they are going to have to have counsel?
You are saying that weeks, possibly months later,
they get back to Guantanamo—do you gentlemen disagree with
that? This is kind of where I am unclear of what, Mr. Bradbury,
may be your position or the Administration’s position would be. If
we are not saying that that person needs legal counsel immediately,
isn’t that plenty of time to gather any immediate information,
the cell phones, the locations, the safe houses, those kinds of
things. Couldn’t we get that information in the first couple of
I don’t think we should impose that kind of arbitrary
limitation on our ability to get intelligence information. It is
our view that you could transfer the person back to GTMO, continue
to interrogate the person. You do not need to provide counsel
if you haven’t charged them; for military commission purposes, if
you have charged them—and you shouldn’t have to charge them
with a crime within some artificially short period of time such as
you do under speedy trial rules.
I think, under the existing UCMJ framework, as I think every
one on the panel agreed, you would have to provide them with
counsel at the first point where you suspect that they may
We are not just going to take UCMJ and plop it in;
we are going to modify it. I guess what I am saying is, how long?
that is really the question here.
It would be our view, again, that if you look to,
for example, the kind of timing concepts that are used in the international
criminal tribunals, criminal trials in those contexts are to
be brought without undue delay, or phrases like that, which allow
for flexibility. But I don’t think you should say within two weeks,
within two months, within a fixed number of days you have to
charge the person with the criminal charges and provide counsel
and then cut off intelligence gathering at that point. I don’t think
that makes sense.
Isn’t there a point where if we have someone for five
years or two years, that we have gotten all we can get out of them?
Well, sure. But keep in mind that these are combatants
who, under the laws of war, we have every right to hold
during the ongoing hostility so we may have them for a long period
of time, and we have had the folks at GTMO for a considerable period
of time. And if they have ongoing intelligence value, we should
be able to take advantage of that. And if we have a case to be made
that they have committed serious war crimes, we should be able to
charge them and move forward with those prosecutions.
We should be able to try the 60, 80 or 100 people at GTMO who
we believe should be charged with war crimes and tried. We should
be able to try them under whatever rules Congress now sets up
even though they have been held now for some years.
Mr. Ryan, I am trying to get everybody to have
their five minutes.
Will we have another round?
Hopefully not. We will have many more rounds,
but I hope not today. I think we need to let the witnesses go on.
Thank you, Chairman, and thank you
all for being here. I wonder if we can go back a bit. I think the role
of Congress and oversight responsibility in the time of war and
oversight over the law of war is very important, and obviously, the
courts looked at that, and I wonder if you could comment some. Is
it fair to say that we have lost a number of years, perhaps even
five in total in trying to—well, during this kind of imbalance really,
I think, between the executive, the judiciary and the legislative
branches. I am interested really in knowing whether you feel there
was a time at which Congress could have much more appropriately
stepped in or obviously the executive branch could have come to
the Congress? And how you see that role?
And I wonder, Admiral Hutson, if you could elaborate a bit on
what you think the court gave the Congress as a charge in balancing
Thank you. I think the court put it squarely
in your lap. It would have perhaps been helpful in hindsight and
retrospect if Congress had acted more quickly in this area or if the
executive had come to Congress and said, we need help, but that
didn’t happen. And to quote a popular phrase these days, we are
where we are.
So the only thing we can do is move forward. I think Congress
needs to move forward quickly but deliberately on this because it
is an important issue. But I think it is completely now, constitutionally
and by the Hamdan decision, in your ball park.
Anybody else want to comment on
that specifically? No.
I guess I would just say, when the Administration
set up the military commission process back in 2001 it certainly
intended to move forward with it quickly and hoped that
that would be the case. And for a variety of reasons, it hasn’t been,
and court intervention has been part of that, and I agree, we are
where we are.
Certainly, Congress does have authority to define and punish violations,
crimes against the law of nations, and we are here to work
with Congress now so that we can get this process moving forward
Given that we might tweak the military
Commission Order Number 1 of the President or move to what
would be a sizeable modification I think on the Uniform Code of
Military Justice, what kind of other external controls do you think
would be important? Is there something else that, from an appeals
point of view, that the Congress ought to be looking at, whether I
think suggestions that a tribunal would be subject to the supervisory
authority of the Court of Appeals for the Armed Forces; is
that an appropriate direction that the Congress should be taking
to consider that?
Well, I guess I would say, Congresswoman, that
Congress in some sense has decided this issue in the Detainee
Treatment Act where Congress set up a process for judicial review
on appeal of military commission judgments. Final judgments of
conviction of military convictions can be appeal to the U.S. Court
of Appeals for the D.C. Circuit and ultimately if necessary by
certiori to the Supreme Court. One approach would be to keep that
structure of appeal and judicial review in place. I think an important
part of that would be, as Mr. Olson suggested, ensuring this
time around through I guess it would have to be ironclad language
in your statute that all the other collateral habeas litigation does
not move forward. But this is the exclusive avenue for judicial review
of the military commission process.
Again, judicial review of military commission proceedings is a
historic, new development. I mean, historically, there has not been
that, and so—but I think the DTA sets up a process.
Do you see any impact of Hamdan on
the detainee act? Should it be changed in any way as a result of
the Hamdan case?
Certainly, one way is I think what Mr. Olson
suggested and what I just suggested; I think the court read the
provisions in the Detainee Treatment Act which I think were clearly
intended by Congress to cut off jurisdiction for all pending habeas
litigation and other litigation challenging the detention of
these enemy combatants other than the one avenue for appeal to
the D.C. Circuit that Congress intended to set up, but the court
read that—the court just got right around that. And I think that
you need to look at that again because I think that litigation needs
to be shut off, and you need to control the review through one manageable
channel of review.
Thank you, Mr. Chairman. I see my
time is up.
Thank you, Mr. Chairman. I appreciate the patience
of the witnesses and also the tremendous personal sacrifice
that Mr. Olson in particular has already suffered in the war on terror.
The Constitution says in article 1, section 8, that Congress shall
set rules of capture on land and sea. I would like to ask the witnesses
what they think that phrase means.
Precisely what it says.
Well, I don’t think it has been actually fully developed.
I think there are few sources on what it means.
I asked what you thought it meant.
I do think that it provides some authority for
dealing with the captures in the war on terror. There is a view that
it is limited to seizing of property and ships at sea, that kind of
capture. Ultimately, I don’t know if that view is sustainable, but
I will say, Congressman, that never in the history of the country
has Congress entered into the areas where we are now contemplating
providing rules by legislation. These have been areas traditionally
left up to the executive in time of war so we need to proceed
extremely cautiously in these areas.
Not everything in life has a precedent. There was,
however, a very powerful precedent in Youngstown Steel. Justice
Jackson is widely quoted as saying the President’s wartime power
is at its zenith when he has gotten even the concurrence or consultation
This is an ironic age that we are in because although we have
a Republican White House and a Republican Congress, there has
been remarkably little consultation. The Hamdan decision might
not have ever occurred if there had been prior consultation. As you
point out, now we will be consulting with each other.
But it is not only this case of the President’s wartime powers.
Senator Graham was particularly forceful on this yesterday.
are so many areas that the White House has simply not conferred
with Congress, a Republican Congress, on war powers.
So can I ask what your thinking is on why the White House has
refused to confer? Because doesn’t the White House want its wartime
powers to be at their zenith?
Well, Congressman, in the Hamdan case, it was
the position of the United States in that case that the provisions
of the UCMJ and the authorization for the use of military force
that Congress passed in the wake of 9/11 did provide positive and
affirmative support for the President’s military commission process.
So it was the position that we in fact had the support of Congress
in that case. I think the court may view that differently.
I will say that obviously I can’t comment on the full range of
issues that you raised by your question, but I think the President
has endeavored to keep Congress informed through the traditional
channels; for example, through briefings and notification to the relevant
committees with respect to different activity, certainly this
committee, on wartime activities.
Mr. Bradbury, the Republican chairman of the
House Intelligence Committee released a letter last week saying he
had not been properly informed as the chairman of the House Intelligence
You were quoted in the newspaper yesterday as saying the President
is always right. And I hope that is a misquote because I have
never met an infallible human being yet.
Neither have I, Congressman. I am glad you
brought that up. I guess that shows I shouldn’t try to be humorous
when I am testifying. That was a tongue-in-cheek comment. Nobody
is always right, and I certainly didn’t mean to say that other
than in humor.
Let me move on since the time is so short. The sovereignty
issue with Guantanamo, who is the sovereign power in
Mr. Olson, you stressed that in your comments.
The agreement between the government of Cuba and
the United States makes it absolutely clear and no court so far has
disturbed that conclusion that the sovereignty remains with Cuba.
There are limitations on what the United States may do there to
commercial and other——
Are you saying that Cuban law controls in Guantanamo?
No, and I should allow the government lawyers to
answer that question because I am no longer representing the government,
but the agreement with respect to that makes it clear
that with respect to that area, like in many other agreements
throughout the world, U.S. law may appropriately govern property
that is in the custody of the United States, although sovereignty
U.S. law doesn’t apply, Cuban law applies. What
law does apply there?
Again, I want to defer to my colleagues representing
But you stressed this point very strongly in your
testimony. Whose law applies?
There is an area where the Commander-in-Chief has
responsibility to determine battle place decisions, who fires a gun,
where the troops will go, and so forth. And under those circumstances
the Constitution quite properly allocated that responsibility
to the President.
Mr. Cooper, I want to give Ms. Bordallo a chance
to ask her questions, too.
Thank you. Ms. Bordallo.
Thank you very much, Mr. Chairman, and thank
you to the panel. This certainly is a very critical concern.
I have just one question. I had a couple of questions. But in light
of the Hamdan ruling of the Supreme Court and the memorandum
issued by Secretary England concerning the application of article 3
of the Geneva Conventions, could you foresee a situation in the future
where our Nation would not adhere to article 3? And if so,
what kind of situation would that be, and why would it justify once
again disregarding the Geneva Conventions? That would be for
you, Mr. Bradbury.
Thank you, Congresswoman. We have not disregarded
the Geneva Conventions. We brought a good faith interpretation
of the Geneva Conventions. And again, the court has not
said that al Qaeda detainees are prisoners of war subject to all of
the rules and privileges of the Geneva Conventions. The court simply
construed one article of the Geneva Conventions, common article
3, and said, contrary to the President’s determination, this in
fact is not an international conflict because it is not between nations,
and therefore common article 3 applies in our war on terror.
That is, we believe, quite a dramatic concept because I don’t think
the drafters of Geneva in drafting that provision intended to cover
or even anticipated conflicts between nations like the United States
and international terrorist organizations. But be that as it may, the
court said that applies.
Now that brings with it a number of standards, substantive
standards, and some procedural requirements. And as I said in my
testimony, most of the substantive standards are quite clear, and
we can all agree that they are condemnable conduct; they are in
fact the kind of crimes against humanity that al Qaeda commits.
There are some very vague phrases such as humiliating and degrading
treatment. These are the kinds of phrases that in past
treaties and recent treaties like the Convention Against Torture
and the International Convention For Civil and Political Rights
have caused the United States to take reservations to those treaties,
carefully defining those phrases by reference to U.S. constitutional
law so we can all be sure it is based on a U.S. understanding
of the proper standards and not international understandings,
which may be different from ours and may evolve.
We don’t have such a reservation to common article 3 currently,
and so the meaning of that phrase, those phrases, which are quite
vague, will be uncertain and will be subject to interpretations by
foreign and international tribunals and other governments, and
they have been applied, in certain respects, in ways that are quite
reasonable. In other respects, they have been applied in very broad
ways, which might condemn the kinds of conditions that are in
U.S. prisons for example. And we need to be very careful because
now as a result of the court’s opinion a violation of those standards
suddenly is a war crime under title 18 of the U.S. code. So it puts
at risk all of the U.S. personnel handling it.
We think Congress can act by statute to bring definition and certainty
to the meaning of common article 3 and implement it for the
United States. We think that is consistent with our treaty obligations,
and it can make those terms certain, and we think that is
very important as we move forward.
If these changes are made then the situation perhaps
would not occur again, is this what you are saying?
We think we can address that, that the Congress
can address those risks through legislation.
Thank you, Mr. Chairman, for the opportunity to
ask my question.
Thank you. We have gotten to the end of our witnesses
and seeing we are down below ten minutes in the vote, I am
going to yield to the Chairman for just a moment.
I want to thank you the gentleman from New
Hampshire for running this hearing so effectively here while I was
Gentlemen, I would like to thank you for being with us, but also
ask you if you want to make any recommendations as to the substance
of the structure or anything elsewhere you think we would
be—that you have some advice for us, without objection, we will
leave the record open. And please make any further recommendations
you would like to make to us on how we construct this new
body of law. I think we are going to be acting, and whether we get
this in time to package it with the conference report working with
the Senate or it comes in later, I think we definitely are acting. So
it is going to be there. This has been I think very, very instructive.
You have been most valuable in talking to us today. Thank you
very much. As you can see, we had full attendance, lots of people
with lots of great questions, and your testimony was very, very
good. Really appreciate it. Thank you.
Thank you, Mr. Chairman.
Thank you, all of the witnesses, and I get the responsibility
of adjourning the hearing.