Military Commissions - Jul 12, 2006

Transcript Text

  • The CHAIRMAN

    At 00:00:28
    9 minutes

    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
    soldiers.
    So who are we dealing with in military commissions? We are
    dealing with the enemy in war, not defendants in our domestic
    criminal justice system. And on that point the background that I
    have seen on Mr. Hamdan is that he is accused of being a bodyguard
    for Osama bin Laden, a deliverer of weapons and a person
    who operated convoys for al Qaeda.
    So we are dealing with the enemy in war, not defendants in our
    domestic criminal justice system, that is clear. Some of them have
    returned to the battlefield after we let them out of Guantanamo,
    and this committee has seen pictures of people who were released
    from Guantanamo after they asserted that they had had only a peripheral
    connection with the battlefield and that they would be behave
    themselves if allowed to return home, and later on they ended
    up carrying weapons, shooting at, and presumably inflicting injury
    on American soldiers on the battlefield.
    So our primary purpose is to keep them off the battlefield. In
    doing so, we treat them humanely, and if we choose to treat them
    as war criminals, we will give them due process rights that the
    world will respect. But we have to remember they are the enemy
    in an ongoing war. In this new war where intelligence is more vital
    than ever, we want to interrogate the enemy, not to degrade them,
    but to save the lives of American troops, American civilian and our
    allies. But it may not be practical on the battlefield to read the
    enemy their Miranda warnings.
    Classified information is another area which we need to look
    closely at. Do we want to give the enemy the sources and methods
    of how we obtain information? Court-martials in Federal criminal
    trials have special rules to protect classified information for our soldiers
    and civilians, but do we want to give battle intelligence to terrorists?
    In time of war it may not be practical to apply the rules
    of evidence that we do in civilian—the same rules of evidence that
    we do in civilian trials or court-martials for our troops. Will commanders
    and witnesses be called from the frontline to testify in a
    military commission, or can we use reliable hearsay and sworn affidavits?
    I note that hearsay is allowed in international war crime
    tribunals for Rwanda and Yugoslavia.
    Justices Stevens and Kennedy, who both shaped the Hamdan
    opinion, each stated that there could be justification from deviation
    from the old rules in this new war. Justice Stevens simply said the
    President did not make such a justification for the rules regarding
    military commissions, although he said such a justification might
    be proper if, and I quote, some practical need explains deviations
    from court-martial practice.
    Justice Kennedy said, again I quote, ‘‘If Congress after due consideration
    deems it appropriate to change the controlling statutes
    in conformation with the Constitution and other laws, it has the
    power and prerogative to do so.’’
    So let’s see if there is a need or practical reason to change the
    rules. We have to give the executive the tools to fight this war.
    This is not a separation of powers issue; it is an issue of how to
    defeat the enemy. The Supreme Court says that we need congressional
    participation, but in doing so let’s not forget our purpose is
    to defend the Nation against the enemy. We won’t lower our standards,
    we will always treat detainees humanely, but we can’t be
    naive either.
    The war started in 1996 with the al Qaeda declaration of jihad
    against the Nation. The Geneva Conventions were written in 1945,
    and the Uniform Code of Military Justice (UCMJ) was adopted in
    1951. In that sense Hamdan may be broader than war crimes trials
    that may be the start of a new legal analysis of the long war.
    It is time for us to think about war crime trials and a process
    that provides due process and protects national security in the new
    war. So I think that really is the essence of what we need to
    produce in this effort that Congress is going to undertake, and that
    is a balancing of these two goals, national security and due process,
    fair play for those who are detained.
    Whatever we decide, we will uphold basic human rights and
    state what our compliance with this standard means for the treatment
    of detainees. I am sure we can do this in a way that is fair
    and the world will acknowledge is fair. Each witness here today is
    uniquely qualified to address these questions.
    And so, gentlemen, thank you for being with us, and before we
    go to your statements, I would like to turn to my good friend from
    Missouri, Mr. Skelton, whose father was involved in the litigation
    of one of the key cases that was cited by the Hamdan court ex
    parte. I look forward to his comments and the comments from all
    my colleagues, and I would also like to mention that Ms. Sanchez
    has proposed a provision for a commission that she offered—has offered
    in our last markup, and she has worked this issue, and she
    should be commended for that, and we will be looking at her proposal
    as well as proposals and recommendations and suggestions of
    all Members.
    So at this time I would like to turn to the gentleman from Missouri,
    Mr. Skelton.
    STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE
    FROM MISSOURI, RANKING MEMBER, COMMITTEE ON
    ARMED SERVICES

  • Mr. SKELTON

    At 00:09:38
    2 minutes

    Mr. Chairman, thank you very much. I join in welcoming
    the witnesses.
    Mr. Chairman, I am going to be brief and ask that my longer
    statement be entered into the record in the interest of going
    straight to the testimony and to the questions.
    We in Congress have a responsibility to those who serve in uniform
    in the same way we are committed to ensuring that our forces
    have the best equipment when they go into battle. We will do everything,
    I will repeat, we will do everything to make sure the
    enemy is taken off the battlefield and not given another opportunity
    to kill American soldiers and marines.
    We take this as our charge, but we must do so in a way that conforms
    strictly to the rule of law with our core values as Americans.
    That is what our troops fight for.
    Mr. Chairman, I am glad you mentioned Ms. Sanchez’s proposed
    legislation. She has been working on this for a good number of actually
    years, if I understand correctly, and has anticipated the outcome
    of this case.
    The Supreme Court spoke loudly and it spoke clearly when it
    ruled in the Hamdan case, and we can and we must craft a system
    for aggressively dealing with accused terrorists and war criminals
    that holds them to account, but we must do so in a way that meets
    the standards that are laid out by the Supreme Court decision.
    The Court has given Congress a clear charge to craft a system
    that provides basic due process. We can and we must get this right.
    The worst thing we can do, Mr. Chairman, is for another Supreme
    Court decision to kick back what we do.
    So to do so, I believe we must look carefully at tried and true
    existing systems of law like the Uniform Code of Military Justice
    that may provide a basis for a solution. We must consider the
    modifications that need to be made to make commissions most effective
    as a tool in the war on terror.
    Mr. Chairman, this is not the first time that we have had tribunals
    or commissions regarding an enemy. In 1942 and 1946 again,
    we had commissions that were upheld at that time. But under this
    recent Supreme Court decision, it is possible to legislate a system
    that will keep terrorists off the battlefield and meet the Court
    standards.
    This hearing is a good first step, and I compliment you, but we
    will need more hearings like them and will need to work together
    in a bipartisan, open process to figure out the best solution. This
    will take time and will take consideration. It is well worth it for
    our troops and for the outcome of the war on terror, and I look forward,
    Mr. Chairman, to undertaking this effort and hearing from
    our witnesses.
    [The prepared statement of Mr. Skelton can be found in the Appendix
    on page 53.]

  • The CHAIRMAN

    At 00:12:34
    11 seconds

    I thank the gentleman, and again, gentlemen,
    good morning. Mr. Bradbury, thank you, sir, for being with us. The
    floor is yours.
    STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT
    ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT
    OF JUSTICE

  • Mr. BRADBURY

    At 00:12:45
    6 minutes

    Thank you, Mr. Chairman, Ranking Member
    Skelton and members of the committee.
    The Supreme Court in Hamdan v. Rumsfeld held that the military
    commissions that the President had established were inconsistent
    with the Uniform Code of Military Justice and the Geneva
    Conventions. It is important to realize, as the Chairman emphasized,
    that the Court did not question the authority of the United
    States to detain enemy combatants in the war on terror, and its decision
    does not require us to close Guantanamo Bay (GTMO) or release
    any terrorists. The Court implicitly recognized that the vicious
    attacks of al Qaeda triggered our right to use military force
    in self-defense, and that we are involved in an armed conflict with
    al Qaeda.
    The Court furthermore made clear that its decision rested only
    on an interpretation of current statutes and treaty-based law. The
    Court did not address the President’s constitutional authority and
    did not reach any constitutional question. Therefore, Hamdan now
    gives the Congress and the Administration a clear opportunity to
    work together to address the matters raised by the case, including
    the appropriate procedures to govern military commissions.
    In moving forward after Hamdan, the basic question we must answer
    is how best to pursue the prosecution of al Qaeda and other
    terrorist combatants in this armed conflict. In trying al Qaeda terrorists
    for their war crimes, it is not appropriate as a matter of national
    policy, not practical as a matter of military reality, not required
    by the Constitution, and not feasible in protecting sensitive
    intelligence sources and methods to require that military commissions
    follow all of the procedures of a court-martial.
    In my written testimony I have identified several provisions of
    the Uniform Code of Military Justice and court-martial procedures
    that are impractical to apply in the military commission context.
    Mr. Chairman, all the issues with military commissions identified
    by the Supreme Court can be addressed and resolved through
    legislation. The Administration stands ready to work with Congress
    to do just that so that trials of captured al Qaeda terrorists
    can move forward again.
    In its decision, the Court also addressed the application of the
    Geneva Conventions to al Qaeda fighters in our war on terror. On
    this point it is important to emphasize that the Court did not decide
    that the Geneva Conventions as a whole apply to our conflict
    with al Qaeda or that members of al Qaeda are entitled to the
    privileges of prisoner of war status. The Court held rather that the
    basic standards contained in Common Article 3 of the Geneva Conventions
    apply to the conflict with al Qaeda.
    Of course, the terrorists who fight for al Qaeda have nothing but
    contempt for the laws of war. They have killed thousands of innocent
    civilians in the United States and thousands more in numerous
    countries around the world. They openly mock the rule of law,
    the Geneva Conventions, and the standards of civilized people everywhere,
    and they will attack us again if given the chance.
    When the Geneva Conventions were concluded in 1949, the drafters
    of the conventions certainly did not anticipate armed conflicts
    with international terrorist organizations such as al Qaeda. Be that
    as it may, we are now faced with the task of implementing the
    Court’s decision on Common Article 3.
    Last year, Congress engaged in a significant public debate on the
    standards that should govern the treatment of captured al Qaeda
    terrorists. Congress codified that standard in the McCain amendment,
    part of the Detainee Treatment Act, which prohibits cruel,
    inhuman or degrading treatment or punishment, but, importantly,
    it defined that standard by reference to the established meaning of
    our Constitution for all detainees held by the United States.
    We all believe that enactment of the Detainee Treatment Act settled
    questions about the baseline standard that would govern the
    treatment of detainees by the United States in the war on terror.
    That assumption is no longer true.
    In its ruling in Hamdan, the Supreme Court has now imposed
    another baseline standard, Common Article 3 of the Geneva Conventions.
    On the one hand, when reasonably read and properly applied,
    Common Article 3 will prohibit the most serious and grave
    offenses. Most of the provisions of Common Article 3 prohibit actions
    that are universally condemned such as violence to life, murder,
    mutilation, torture and the taking of hostages.
    These are a catalog of the most fundamental violations of international
    humanitarian law. In fact, they neatly sum up the standard
    tactics and methods of warfare utilized by our enemy.
    On the other hand, although Common Article 3 should be understood
    to apply only to serious misconduct, it is undeniable that
    some of the terms in Common Article 3 are inherently vague. Common
    Article 3 prohibits, quote, ‘‘outrages upon personal dignity,in
    particular, humiliating and degrading treatment,’’ a phrase that is
    susceptible of uncertain and unpredictable application. In Common
    Article 3 it is not defined by reference to our own Constitution as
    it is in the McCain amendment.
    Furthermore, the Supreme Court has said that in interpreting a
    treaty provision, the meaning given to the treaty language by international
    tribunals must be accorded, quote, ‘‘respectful consideration,’’
    and the interpretations adopted by other State parties to
    the treaty are due considerable weight. Accordingly, the meaning
    of Common Article 3, the baseline standard that now applies to the
    conduct of U.S. personnel in the war on terror, would be informed
    by the evolving interpretations of tribunals and governments outside
    the United States. Many of these interpretations to date have
    been consistent with the reading that we would give to Common
    Article 3. Nevertheless, the application of Common Article 3 will
    create a degree of uncertainty for those who fight to defend us from
    terrorist attack.
    The meaning of Common Article 3, of course, is not merely academic,
    because the War Crimes Act makes any violation of Common
    Article 3 a felony offense.
    We believe that the standards governing the treatment of detainees
    by the United States in the war on terror should be certain,
    and that those standards should be defined by U.S. law consistent
    with our Constitution and our international obligations. We look
    forward to working with Congress to protect the American people
    and to ensure that unlawful terrorist combatants can be brought
    to justice consistent with the Supreme Court’s guidance.
    I look forward to discussing those issues with the committee this
    morning, and thank you, Mr. Chairman.

  • The CHAIRMAN

    At 00:19:32
    7 seconds

    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,
    sir.

  • Mr. DELL’ORTO

    At 00:19:39

    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 00:19:39

    Pull that up closer, make sure it is on.
    STATEMENT OF DANIEL J. DELL’ORTO, PRINCIPAL DEPUTY
    GENERAL COUNSEL, DEPARTMENT OF DEFENSE

  • Mr. DELL’ORTO

    At 00:19:39
    4 minutes

    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
    courts.
    For every court-martial rule that is arguably less protective of
    the accused than its civilian analog, there are several that are indispensably
    more protective. For example, legal counsel is provided
    without cost not just for the indigent, but for all. The rights to
    counsel and against self-incrimination are afforded earlier in the
    military justice system than in civilian practice. Instead of indictment
    by grand jury, which convenes in secret without the defendant
    and defense counsel, the military justice system requires that
    for a general court-martial a thorough and impartial investigation
    be open to the public and the media, at which the accused and defense
    counsel may conduct pretrial discovery and call and cross-examine
    witnesses.
    The court-martial process allows open and full discovery of the
    government’s information by the accused, a process more open and
    automatic than discovery in civilian criminal prosecutions. The
    speedy trial rules are much more strict in the military justice system
    than in the civilian system. The statute of limitations that applies
    to most military offenses is shorter than the Federal statute
    for terrorism offenses, and the rules for exclusion of evidence are
    more generous toward the accused than their civilian counterparts.
    While tradition and common sense, therefore, provide strong support
    for alternative adjudication processes for terrorists and other
    unlawful enemy combatants, military necessity is perhaps the
    strongest reason of all. It is simply not feasible in time of war to
    gather evidence in a manner that meets strict criminal procedural
    requirements.
    Service personnel are generally not trained to execute military
    combat and intelligence missions while simultaneously adhering to
    law enforcement standards and constraints.
    Asking our fighting men and women to take on additional duties
    traditionally performed by police officers, detectives, evidence
    custodians, and prosecutors will not only distract from their mission,
    but endanger their lives as well. Intelligence gathering would
    also suffer terribly. It would greatly impede intelligence collection
    essential to the war effort to tell detainees before interrogation that
    they are entitled to legal counsel, that they need not answer questions,
    and that their answers may be used against them in a criminal
    trial.
    Similarly, full application of court-martial rules would force the
    government either to drop prosecutions or to disclose intelligence
    information to our enemies in such a way as to compromise ongoing
    or future military operations, the identity of intelligence
    sources, and the lives of many. Military necessity demands a better
    way.
    As Mr. Bradbury stated, the Hamdan decision provides Congress
    and the President an opportunity to address these critical matters
    together, and we look forward to working with you.
    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 00:24:29

    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

  • Mr. OLSON

    At 00:24:29
    7 minutes

    Thank you, Chairman Hunter, Ranking Member
    Skelton, and members of this committee. I appreciate the opportunity
    to appear before the committee to testify about a Supreme
    Court decision that has far-reaching implications for the President’s
    ability to defend our national security and to perform his duties
    as Commander-in-Chief. No issue, I believe, deserves more
    thoughtful consideration from our elected representatives than ensuring
    that the American people are defended from a savage terrorist
    enemy that deliberately targets civilian lives and mutilates our
    soldiers in an effort to destroy our way of life.
    It is altogether necessary and appropriate for Congress to consider
    a legislative response to the Hamdan decision. Indeed, all
    eight Justices who participated in the case recognized that congressional
    action could cure any perceived inadequacies in the military
    commissions established by the President.
    In my written submissions to you, I address the questions of
    military commissions and the applicability of the Geneva Conventions
    and how that issue might be dealt with. I would like to today
    just focus on another aspect of the Hamdan decision that I don’t
    believe will be covered by the other witnesses.
    In response to the Justices’ invitation to implement a legislative
    solution, it is my view that Congress should restore the status quo
    that existed prior to the Supreme Court’s decision in Hamdan and
    Rasul v. Bush two years ago that for the first time in the history
    of the United States, and contrary to long-established precedence,
    held that Federal courts in the United States had jurisdiction over
    the capture, detention and treatment of noncitizen aliens captured
    on the battlefield and held beyond the sovereign territory of the
    United States.
    The Supreme Court in that Rasul decision overturned Johnson v.
    Eisentrager, a Supreme Court precedent written by Robert Jackson
    that had stood for over 50 years, and held for the first time that
    the habeas corpus statute gave the Federal courts jurisdiction to
    supervise the custody of alien combatants held abroad by our military
    forces.
    In the Hamdan decision, the Court held that the Detainee Treatment
    Act enacted by this Congress in response to the Rasul case,
    reasserting by Congress that the courts had no jurisdiction to hear
    habeas corpus petitions from enemy alien combatants held abroad,
    the Supreme Court in Hamdan reversed that decision and said that
    it did not apply, your legislation did not apply, to pending cases.
    Since the emergence of the writ of habeas corpus several centuries
    ago in English common law courts, the writ has never been
    available to enemy aliens held outside a country’s sovereignty. By
    requiring the President to justify his military decisions in Federal
    courts, Rasul imposes a substantial and unprecedented burden on
    the President’s ability to react with vigor and dispatch to homeland
    security threats.
    The congressional response to Rasul, as I mentioned before, was
    the Detainee Treatment Act that explicitly provided that no court
    shall have jurisdiction to hear or consider an application for a writ
    of habeas corpus filed by or on behalf of an alien detained by the
    Department of Defense at Guantanamo Bay. No court, no jurisdiction.
    Notwithstanding that clearly stated legislative language, the
    Hamdan Court held that the Detainee Treatment Act does not
    apply to those petitions that were pending at the time of the decision.
    That holding requires the Federal courts to adjudicate hundreds
    of other habeas corpus petitions filed by Guantanamo Bay
    detainees pending at the time that legislation was enacted.
    Until the Supreme Court’s Rasul decision, no court had ever suggested
    that aliens captured during hostilities and held outside the
    United States could challenge their captivity through a petition for
    writ of habeas corpus filed in a U.S. court. Indeed, none of the two
    million prisoners of war held by the United States at the conclusion
    of World War II was deemed authorized to file a habeas petition
    in a U.S. court challenging the terms or conditions of their confinement.
    One can only imagine the chaos that would have been introduced
    into the effort to win World War II if each of these detainees or
    lawyers on their behalf had been permitted to file petitions in the
    United States courts immediately upon their capture in Europe, Africa,
    or in the islands of the Pacific. Yet that is precisely the circumstance
    that Rasul and Hamdan have created and that the
    President and the armed forces must face today in their fight
    against terrorism.
    The Rasul and Hamdan decisions impose a tremendous burden
    on our military personnel in the field. To begin with, as the Supreme
    Court explained in the Eisentrager decision 50 years ago,
    authorizing courts at the behest of enemy aliens to second-guess
    the decisions of military commanders will diminish the prestige of
    our commanders not only with the enemies, but with wavering
    neutrals.
    The Court goes on: It would be difficult to devise more effective
    fettering of a field commander than to allow the very enemies he
    is ordered to reduce to submission to call him to account in his own
    civilian courts and divert his efforts and attention from the military
    offensive abroad to the legal defensive at home.
    Mr. Dell’Orto mentioned some of the complications, but they include:
    Will commanders be summoned from the field to give evidence
    and to explain the circumstances of the capture of combatants?
    Will detainees have access to counsel? Do they have the right
    to appointed counsel, Miranda warnings, the right to speedy trials?
    Will the Government be required to disclose sensitive intelligence
    information to demonstrate that its detention of enemy combatants
    is justified?
    Those are just a few examples. I submit that Congress should act
    to restore the status of the habeas corpus jurisdiction that has existed
    throughout this Nation’s history until two years ago. The
    Constitution places the decision to detain a noncitizen enemy combatant
    on the battlefield squarely within the domain of the President
    as Commander-in-Chief of the Armed Forces. Congress should
    restore the constitutional balance by amending the Detainee Treatment
    Act to clarify, as the Congress, I think, thought it did then,
    that Federal courts lack jurisdiction over habeas corpus petitions
    filed by detainees held outside the sovereign territory of the United
    States, no matter when those petitions were filed.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Olson can be found in the Appendix
    on page 74.]

  • The CHAIRMAN

    At 00:32:21

    Mr. Olson, thank you very much.
    Rear Admiral Hutson, thank for being with us this morning.
    STATEMENT OF REAR ADM. JOHN D. HUTSON, (RET.), PRESIDENT
    AND DEAN, FRANKLIN PIERCE LAW CENTER, FORMER
    JUDGE ADVOCATE GENERAL, U.S. NAVY

  • Admiral HUTSON

    At 00:32:21
    7 minutes

    Thank you, Mr. Chairman. Mr. Skelton, thank
    you. Thank you for holding what I think are incredibly important
    hearings on the issue of the day right now in prosecution of the
    war.
    I want to start out by saying unequivocally that I want to be able
    to successfully prosecute terrorists; however, I believe that 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
    it.
    I was an early supporter of the concept of military commissions,
    and I still am. I think it is the way to go. I was not a supporter
    of the way in which they were implemented in the second order.
    We should use commissions as a means whereby we demonstrate
    to the world what it is we are fighting so valiantly to preserve.
    I was talking with a lawyer yesterday from Human Rights First
    about the Hamdan decision and my testimony in this hearing, and
    she made a comment to me that I thought was very profound and
    compelling, which was that Hamdan was not—the Hamdan decision
    was not a revolution, it was a return. It was returning us to
    where we should be. It shouldn’t have been a shock, it should have
    been ho-hum. It was return to business as usual.
    The United States stands for the rule of law, and we have for
    years. It is not a rule of law if you only apply it when it is convenient.
    It is something else. For too long this has been a discussion
    between the executive branch and the courts, and it is time, as you
    know by conducting these hearings, to return the conversation to
    the proper forum, which is to say Congress.
    If Hamdan stands for anything, it stands for the proposition that
    Congress has to engage thoughtfully and deliberately in these
    issues. There are those who advocate the Congress simply reaffirm
    what the President did prior to Hamdan with military commissions.
    I think that would be a dramatic mistake. There are those
    that would say we should start out and pull out a clean sheet of
    paper and start writing. I think that is not the easy way to do this.
    This can be easy, and I mean E-A-S-Y. It can be easy. On every
    bookshelf of every U.S. military lawyer stationed anyplace in the
    world sits a burgundy soft-covered book. That book is the envy of
    every armed force on the face of the Earth. It contains the Uniform
    Code of Military Justice and the Manual for Courts-Martial. We
    should use that as the model.
    I am glad that the prior witnesses have talked about the
    strength and the beauty of the Uniform Code of Military Justice
    and the Manual for Courts-Martial. Those documents can be 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
    Courts-Martial.
    We decided, this Nation decided, early on that this was going—
    we were going to deal with terrorism as a war rather than as a
    criminal activity, and I think that was a good decision, but that in
    itself is a new paradigm, and what we have done is say in this war
    we are now going to start prosecuting people. We didn’t prosecute
    Hitler’s driver or bodyguard and probably wouldn’t have if we had
    captured him. This is different. We are taking people who are coming
    in off the battlefield, and rather than just holding them, which
    we could do, we want to prosecute them. That is fine, but if we are
    going to do that, we have to do it in accordance with certain rules
    that are generally accepted as indispensable by civilized people.
    I am proud to be a lawyer. I think our system of justice defines
    how good this country is. I think that we have the opportunity now
    to demonstrate to the rest of the world what that system looks like,
    and, with some minor modifications to the UCMJ, we can do that.
    We shouldn’t reverse-engineer the commissions, assuming that
    everybody is guilty, and then create a commission that is geared
    to proving that point. We have to start at the beginning. And I
    would suggest that we do that with the Uniform Code of Military
    Justice.
    Thank you, sir. I look forward to your questions.

  • The CHAIRMAN

    At 00:40:10
    32 seconds

    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?
    Mr. Bradbury.

  • Mr. BRADBURY

    At 00:40:42
    25 seconds

    I guess the one line, Mr. Chairman, I would say
    is that it is up to Congress now to design the procedures for military
    commissions and make the decisions as to what makes sense
    in a trial, in an al Qaeda terrorist versus a trial of a U.S.
    servicemember. Those are two different things. It is up to Congress
    to decide, and we are here to work with you to make that happen.

  • The CHAIRMAN

    At 00:41:07

    Mr. Dell’Orto.

  • Mr. DELL’ORTO

    At 00:41:07
    58 seconds

    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
    the Congress.
    We have been many, many years in the process of trying to try
    the detainees who we believe have committed war crimes. All Congress
    needs to do, assuming it has taken the opportunity to review
    the commission process as it is currently configured, is to ratify
    that process, and we can move on very, very quickly. And that is
    what I think the Supreme Court has signaled to this Congress.

  • The CHAIRMAN

    At 00:42:05

    So it was a requirement for the participation of
    Congress with the executive that was the essence of the opinion.

  • Mr. DELL’ORTO

    At 00:42:05
    9 seconds

    I think that is the essence of it, Mr. Chairman.

  • The CHAIRMAN

    At 00:42:14

    Mr. Olson.

  • Mr. OLSON

    At 00:42:14
    1 minute

    I believe the Supreme Court said that Congress
    needs to approve the method of formation and the procedures to be
    used with military commissions, but that judges will retain jurisdiction
    to second-guess the execution of those decisions in every
    case; and that when this Congress said no court shall have jurisdiction
    to hear or consider habeas corpus applications filed by the detainees
    in Guantanamo, Congress didn’t mean what it said; and
    that as long as that judicial jurisdiction to second-guess military
    decisions exists, we will have the judiciary participating in the conduct
    of military operations wherever they occur. And that gave this
    Congress an opportunity to say again what it tried to say in the
    Detainee Treatment Act.

  • The CHAIRMAN

    At 00:43:26

    Thank you.
    Rear Admiral Hutson.

  • Admiral HUTSON

    At 00:43:26
    16 seconds

    I think that they were saying to constitute a
    court that is consistent with universally accepted judicial guarantees.

  • The CHAIRMAN

    At 00:43:42
    38 seconds

    Okay. Just to take that last description by Rear
    Admiral Hutson, if you look at Geneva Article 3, Common Article
    3, and it talks about regularly constituted court, that is presumably
    the product that would be—if we put together a body of law to govern
    these procedures, that would satisfy those particular words in
    Article 3; is that what you are talking about, Admiral Hutson?

  • Admiral HUTSON

    At 00:44:20
    7 seconds

    Yes, sir. I think if this body creates the court,
    it is regularly constituted.

  • The CHAIRMAN

    At 00:44:27
    43 seconds

    Then you have spoken, Rear Admiral Hutson,
    about standards that are manifest in the Uniform Code of Military
    Justice, basically standards of fairness for defendants’ rights. Do
    you agree that the exigencies of the battlefield would reasonably
    reduce the scope of those rights, or do you think that the full rights
    of the UCMJ should be afforded or that the base of the UCMJ
    should be used? I am trying to understand precisely your position.

  • Admiral HUTSON

    At 00:45:10
    56 seconds

    Absolutely. The exigencies of the battlefield
    and war on terror would necessitate—Article 3 didn’t come down
    from Mount Sinai on a stone tablet, but there are guarantees that
    are embedded in the Uniform Code of Military Justice that comport
    with those judicial guarantees generally accepted, and I think
    those are the presumption of innocence, independent judiciary, all
    of those kind of things; facing your accuser, knowing the evidence
    consistent with military rule of evidence 505 which talks about how
    to deal with classified evidence in a very complete way, so that,
    yes, sir, I believe there are modifications that have to be made.

  • The CHAIRMAN

    At 00:46:06
    1 minute

    What I am reminded of is we went through the
    Guantanamo exercise when those—all the issues surrounding
    Guantanamo were elevated to a status where it was reviewed
    strongly by the committee, and what struck me fairly profound was
    a fairly high number of folks out of the 310 or so that were released
    were proven to have returned to the battlefields and taken
    up arms against our troops.
    And that one thing that you said a minute ago caught my attention
    was—and tell me if I am wrong, but you said to the effect that
    there is nothing wrong with warehousing some of these people over
    a period of time to keep them from returning to the battlefield. And
    you understand the enormous pressure that was put on the Administration
    to prosecute or release. Did I understand your statement
    correctly?

  • Admiral HUTSON

    At 00:47:12
    43 seconds

    Well, I would modify your description of it
    slightly. I believe that the United States can capture terrorists and
    warehouse them. I think it is going to create—we are going to run
    into a diplomatic wall and a political wall and a pubic relations
    wall before we run into a legal wall. The war on terror is certainly
    different in the sense that it is going to go on for probably a much
    longer period of time, and that is going to cause people some problems.
    All I am saying is that we can’t presume that they are guilty and
    create a system to demonstrate that fact.

  • The CHAIRMAN

    At 00:47:55
    1 minute

    Okay. I am reminded, I think one of the early
    cases that we learned in law school, I think it was Davis v. Mississippi,
    where a person murdered an elderly lady and left his fingerprints
    on the window sill, and the fingerprints later were
    matched up with a person who had been taken out of an unconstitutional
    lineup. And so that was one of the cases where it was fairly
    clear that the exclusionary rule was intended to apply even
    though guilty people would go free. But that was a pain that our
    society was willing to suffer and a loss that we were willing to suffer
    to let the murderer walk out the door to ensure and discipline
    our system so that the appropriate procedures were followed.
    In this case the pain that we might see is an enemy combatant
    returning—if he can’t confront his accusers because the sergeant
    who said, that guy was manning the rocket-propelled grenade, that
    sergeant may be dead or unavailable to be—to confront the accuser,
    so—or to confront the accused, so the accused goes free. The
    pain would be manifested and reflected in perhaps dead Americans
    on the battlefield.
    And so the question becomes on your scale of balancing this need
    for basic rights for the accused with our basic need to be secure
    and to protect our soldiers, where do you think we should move
    that forward? What are your thoughts? Hearsay evidence, right to
    confront accuser, that type of thing. I would like to ask all the
    members of the panel that. In fact, go ahead, Admiral Hutson, and
    move right down the panel.

  • Admiral HUTSON

    At 00:49:45
    1 minute

    I would say, sir, that the evidence would have
    to have some apparent authenticity and validity in order to be introduced.
    You can’t just let in everything. There has to be some
    sort of standard, and apparent authenticity and validity may be a
    reasonable standard to use.
    If you have fingerprint evidence in your example in Davis, if you
    have fingerprint evidence, but the chain of custody isn’t perfected,
    I wouldn’t have any problem introducing that in a military commission.
    I would have a problem introducing it in a court-martial of
    a U.S. troop, but acknowledging your acknowledgment of the difference
    of the battlefield, that would probably be acceptable to me.
    But I do think, Mr. Chairman, that there is a balance, and there
    may have to be to some extent a sacrifice, maybe not as dramatic
    as the case you point out in Davis, but there may have to be a sacrifice
    if we are going to do this in a way that we are proud.

  • The CHAIRMAN

    At 00:50:56

    Mr. Olson.

  • Mr. OLSON

    At 00:50:56
    2 minutes

    I yield to Rear Admiral Hutson and Mr. Dell’Orto
    and Mr. Bradbury with respect to the specifics of how those judgments
    might be made. The point that I think is important is that
    when you are fighting an enemy like this—one that defies all civilized
    rules, that intends to be as savage as possible to the most
    vulnerable people in the world, that has no scruples or principles,
    and that will go back every time to the battlefield, maybe not to
    the battlefield, but to a synagogue or a school bus—we have to
    have some flexibility built into the system so that the President as
    Commander-in-Chief and military officials down the line have some
    flexibility.
    You talked about the exigencies of the circumstances. I think
    there has to be flexibility and freedom to exercise discretion by the
    executive. We accord a presumption of some discretion, some deference
    to the Federal Communications Commission (FCC), to the
    Environmental Protection Agency (EPA), to the Army Corps of Engineers
    in court decisions, but there was no deference to the President’s
    judgments about the practicalities of military commissions
    by the Supreme Court in the Hamdan decision, so that when you
    legislate in this area, if you do, I would urge Congress to make
    sure that there is room for discretion, depending upon the circumstances
    of the particular case, and that exercise of that discretion
    will be accorded some deference by any agency or court reviewing
    it to understand the circumstances, because the price that military
    officials will pay if their judgments are second-guessed and not
    accorded some deference later on in court may be very, very high.
    Someone may be prosecuted for a war crime for exercising perfectly
    reasonable judgment with respect to the putting on of a case with
    respect to an enemy combatant or capturing one.

  • The CHAIRMAN

    At 00:53:11

    Thank you.
    Mr. Dell’Orto, any comments?

  • Mr. DELL’ORTO

    At 00:53:11
    2 minutes

    Mr. Chairman, I had the privilege of serving on
    active duty for almost 28 years, the first 8 years as a field artillery
    officer and the balance of my career as a judge advocate officer, and
    spent time mostly in the criminal law arena. Our system as it currently
    exists, the court-martial system, is a fantastic system, and
    it has come to unfold, develop, evolve over the years at the urging
    of Congress because it has taken very good care to ensure that that
    system has been developed in a way that will provide the greatest
    amount of protections to our soldiers.
    But I don’t want a soldier, when he kicks down a door in a hut
    in Afghanistan searching for Osama bin Laden, to have to worry
    about whether when he does so and questions the individuals he
    finds inside, who may or may not be bin Laden’s bodyguards or
    even that individual himself, to worry about whether he has got to
    advise him of some rights before he takes a statement. I don’t want
    him to have to worry about filling out some form that is going to
    support the chain of custody when he picks up a laptop computer
    that has the contact information for all manner of cells around the
    world while he is still looking over his shoulder to see whether
    there is not an enemy coming in after him.
    I want us to be able to do what the President said we should,
    guarantee a full and fair trial to these terrorists that would include
    such things as the presumption of innocence at the outset of the
    trial, that would include a standard of proof that puts the burden
    on the prosecution that requires that he be found guilty by proof
    beyond a reasonable doubt, that provides him with counsel, that
    does so many things that our system of justice in the United States
    calls for. And I would say that the military commission procedures
    that have been established to date do all of those things in a way
    that takes into account what practicalities, practical difficulties,
    are associated with trying to gather this evidence around the world
    in various and sundry places that will place great limitations on
    our ability to adhere to the standard, the standard rules that we
    employ in our courts-martial process and in our civilian court process.
    I think we have already done that, and, again, that is why I urge
    that particular process as the starting point to get to the
    Congress’s approval of the procedures that can be used to satisfy
    what the Supreme Court has told us and the Congress need to be
    done.

  • The CHAIRMAN

    At 00:56:01

    Thank you.
    Mr. Bradbury, where is that balance?

  • Mr. BRADBURY

    At 00:56:01
    2 minutes

    Mr. Chairman, I think the fundamental point, I
    think, is simply that the procedures have to be flexible consistent
    with fundamental fairness. I think there is a lot of flexibility in
    light of the circumstances of the apprehension of these folks, the
    kinds of evidence that is necessary to convict them, and the military
    necessity. And so, for example, running down some of the
    things that are provided in the UCMJ that I think need to be adjusted
    or eliminated in the context of a military commission proceeding,
    the Article 32 investigation that precedes a prosecution
    needs to be off the table and needs to be done through a different
    means.
    The right to counsel that is given, under the UCMJ it is given
    when the individual is first suspected of having committed a crime,
    and he gets counsel right away and gets Miranda rights right
    away, that is inconsistent with simply needing to question individuals
    to get intelligence from them.
    Hearsay rules. International tribunals such as the international
    criminal tribunals for Yugoslavia and Rwanda allow the use of
    hearsay evidence. It is recognized that it is simply as a practical
    matter necessary when you talk about crimes that have occurred
    in far-flung places of the world. You are not going to be able to get
    every witness in life for testimony. You are going to have to allow
    the use of hearsay evidence where the fact-finder determines it is
    probative, it is sufficiently reliable, and it is not outweighed by
    undue prejudice. So you need that flexibility in hearsay rules.
    Classified evidence. We absolutely have to carefully control exposure
    of the terrorist detainee to classified sources and methods.
    There are ways to do that that the commission can police to ensure
    fundamental fairness, using summaries, using substitutes. We also
    in the current military commission process would allow the detainee
    to have counsel cleared in to get access to classified information
    that is actually going to be used as evidence. But we think you
    can do that in a way that is consistent with fundamental fairness,
    and that should be something that a court on review, for example,
    through the Detainee Treatment Act, the standards of review,
    would be able to review after the fact.
    So those are a few of the critical things that absolutely need to
    be flexible in order to make a military commission process that has
    historically worked work in this context.

  • The CHAIRMAN

    At 00:58:41

    Thank you, gentlemen.
    The gentleman from Missouri, Mr. Skelton.

  • Mr. SKELTON

    At 00:58:41
    1 minute

    Mr. Chairman, thank you.
    I am going to be brief. But I think we should remind ourselves
    the purpose of all this is protection of our young people in uniform.
    At the end of the day, that is really what we need to keep in mind,
    to devise a system that will do that.
    The Chairman said something about a one-liner.
    Let me ask this,
    if this is not consistent. We in Congress must provide a regularly
    constituted court, which could be court-martial, UCMJ, Federal
    court, or a specially designed Federal court or a tribunal; second,
    a minimum of due process under the Geneva Convention Common
    Article 3; and third, Congress must authorize departure from the
    courts-martial or Federal rules and procedures in the event that
    military commissions are established.
    Did I leave anything out, gentlemen? Isn’t that really what the
    Court said, those three items?

  • Mr. BRADBURY

    At 01:00:00
    17 seconds

    I am not sure, Congressman, the Court spelled
    it out in exactly the way you have. I think that is consistent with
    what the Court held, and I think if Congress were to enact a statute
    that does what we have described here, it would satisfy all of
    those requirements.

  • Mr. SKELTON

    At 01:00:17

    That is my question.
    Thank you, Mr. Chairman.

  • The CHAIRMAN

    At 01:00:17
    9 seconds

    Thank the gentleman.
    The gentleman from Colorado, Mr. Hefley.

  • Mr. HEFLEY

    At 01:00:26
    1 minute

    Thank you, Mr. Chairman. I think one of the struggles
    we have, and I think you referred to it, and I think many of
    us have struggled with this, is this question of whether it is a
    crime or whether it is war or whether it is a crime during times
    of war. And as one of you mentioned, in the Second World War, we
    didn’t try the average soldier on the battlefield. We kept them, we
    put them in concentration camps, and we kept them until the war
    was over, but we didn’t try them. And I guess I would ask, what
    should we be doing with these people regardless of their rank in
    the bin Laden hierarchy? What should we be doing with them?
    Should we be warehousing them, should we be keeping them in the
    concentration camp like in wartime, or should we be trying them
    like they were criminals? I don’t have much—a good feeling about
    what we ought to do on that.

  • Mr. DELL’ORTO

    At 01:01:35
    48 seconds

    Congressman Hefley, we certainly have the right
    under the law of armed conflict, having captured combatants on
    the battlefield, to detain them for the duration of hostilities. That
    is long settled, recognized not only under the law of war, but by
    our courts. We can detain them until the end of the conflict.
    During World War II, as someone has already mentioned, we detained
    hundreds of thousands of lawful enemy combatants in various
    camps around the country. I wouldn’t call them concentration
    camps. We had them at many of our posts and installations around
    the country. We could have had some in Colorado for all I know.

  • Mr. HEFLEY

    At 01:02:23

    We did.

  • Mr. DELL’ORTO

    At 01:02:23
    3 minutes

    I can remember buying a Christmas tree from
    a former enemy POW at one of my military assignments in
    Baumholder, Germany, who can describe his experience at one of
    our camps at Fort Knox, Kentucky. He thought it was a great experience.
    He spent his time in captivity working in the mess hall
    probably peeling potatoes or at the officer’s club. He thought—he
    was fine with that, and he was very much a friend of our forces
    over in Germany.
    We did during World War II try some number of unlawful combatants,
    or, I am sorry, people who had committed war crimes,
    Yamashita; the German hierarchy for the crimes that they committed
    that violated the laws of war. Now, if a lawful combatant, a soldier
    in the German Wehrmacht, during World War II shoots one
    of our soldiers during combat, he has the immunity that goes along
    with participating as a lawful combatant in a combat action. I
    mean, that is what happens in war. You shoot him, he shoots you
    or shoots at you, and he, because he is—assuming he is fighting
    lawfully, wearing a uniform, reporting to a chain of command, follows
    the laws of war, carrying his arms openly, he is a lawful combatant,
    a privileged belligerent who is not going to be tried for his
    lawful activities on the battlefield. But if he goes into a farmhouse
    and lines up a bunch of civilians and shoots them, he has committed
    a non—those are noncombatants. He has committed a war
    crime and is being subject to punishment for that. Or if he directs
    that sort of activity as Yamashita did and takes no regards for the
    consequences of what his soldiers do on the battlefield as they rape
    and pillage, he is subject to trial for an unlawful—for his unlawful
    acts.
    What we have here are people who don’t wear uniforms. They
    don’t carry arms openly. They don’t distinguish themselves from
    the civilian population anyway. They don’t follow the laws of war.
    They are without any discipline in the way they conduct their combat.
    They deliberately attack civilians. They behead people, they
    mutilate people. And so they are in theory at all levels unlawful
    combatants. We are—we have charged ten of those people and
    probably have another several dozen others who are likely to be
    candidates for military commissions because their activities rate—
    are at such a significant level that we believe they should be tried
    as war criminals under the military commission process, the process
    that we have had, or at least the tradition we have had, of conducting
    these sorts of tribunals throughout our history.
    So I don’t know if that answers your question. It is a long answer,
    but I have tried to sort of put this in context.

  • Mr. HEFLEY

    At 01:05:25
    20 seconds

    No, it is very, very helpful. Since these are unlawful
    combatants, so many of them, maybe most of them, do the rules of
    the Geneva Conventions apply? Because those were drawn up to
    deal—weren’t they primarily—with lawful combatants?

  • Mr. DELL’ORTO

    At 01:05:45
    36 seconds

    And those who are not part of the fight, so we
    have the third Geneva Convention that deals with prisoners of war
    that, like the people I described who were at our camps around the
    United States during World War II, they would be covered today
    under Geneva 3, and they would receive all sorts of rights.
    Now, they could be punished for things that they did in the
    camp. If they beat up a guard, they beat up another detainee, they
    could be punished under our system for those acts, but they are not
    going to be punished for their lawful activities on the battlefield.

  • Mr. HEFLEY

    At 01:06:21

    Thank you very much.

  • The CHAIRMAN

    At 01:06:21
    10 seconds

    The gentleman from Arkansas, Dr. Snyder.

  • Dr. SNYDER

    At 01:06:31
    34 seconds

    Thank you, Mr. Chairman, and thank you for holding
    this important hearing. I wanted to—we only have five minutes,
    so I am going to ask quick questions, maybe get quick answers.
    Going along with what Mr. Hefley talked about, I will go to you,
    Admiral Hutson, is it an accurate description to say that what we
    are all dealing with today and the changes we are talking about,
    the proposals are to deal with the legal system to be set up for
    those going to trial; the Hamdan decision did not deal with those
    detainees who are not going to trial? Is that an accurate description,
    Admiral Hutson?

  • Admiral HUTSON

    At 01:07:05
    9 seconds

    Yes, sir. One of the reasons we are wrapped
    around the axle about this is because we are trying to prosecute
    people. That is the issue.

  • Dr. SNYDER

    At 01:07:14
    11 seconds

    And what we all as the Congress and what Chairman
    Hunter is holding these hearings about is what changes are
    we going to make for those that we are taking to trial? We are not
    talking about changing processes now for those that are not going
    to trial. Is that an accurate description?

  • Admiral HUTSON

    At 01:07:25

    I believe that is what the committee is about.
    Yes, sir.

  • Dr. SNYDER

    At 01:07:25
    3 minutes

    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?

  • Admiral HUTSON

    At 01:10:53
    42 seconds

    Yes, sir. It is a fair description, and we try to
    track basically the thrust of the Hamdan decision. With respect
    when Mr. Bradbury used the word ‘‘flexible,’’ it kind of sends a chill
    up my spine because it just sounds too flexible, but I think that if
    the President is saying that it is impracticable to do this for the
    following reasons, Article 32, Article 31, those kinds of things, he
    can make that determination, report it to Congress, and we will
    move on, and we will actually get some trials, we will actually complete
    this job.

  • Dr. SNYDER

    At 01:11:35
    11 seconds

    May I ask one quick follow-up, Mr. Chairman?
    And what you are suggesting is that these would be—the President’s
    rules would be not on a case-by-case basis, but——

  • Admiral HUTSON

    At 01:11:46

    No.

  • Dr. SNYDER

    At 01:11:46

    Lay down a report to the Congress.
    Thank you, Mr. Chairman, for holding this hearing.

  • Mr. DELL’ORTO

    At 01:11:46
    8 seconds

    Mr. Chairman, may I respond?

  • The CHAIRMAN

    At 01:11:54

    Oh, certainly. Any members of the panel can respond.
    Certainly.

  • Mr. DELL’ORTO

    At 01:11:54
    2 minutes

    Congressman Snyder, we have been looking at
    this particular question, as you can imagine, and let me give you
    some of our preliminary assessments again. These are preliminary,
    and so we have got—we do have much more work to do.
    To do what you suggest or what Admiral Hutson suggests, preliminary
    assessment would indicate that 110 rules for courts-martial,
    73 military rules of evidence, and somewhere between 145 and
    150 articles of the Uniform Code of Military Justice would require
    some form of amendment to permit us to take the existing structure
    and adapt it for military commission process. That is a gutting
    of the Manual for Courts-Martial and the Uniform Code of Military
    Justice.
    If you look at the current structure that we have in the military
    commission order, comments from the President’s military order,
    we have a process there that we believe comports very, very well
    and compares very favorably with both the International Criminal
    Tribunal for the Former Yugoslavia and the International Criminal
    Tribunal for Rwanda.
    To the extent we have to do this in order to approach or to satisfy
    the Common Article 3 requirement that we have a system that
    comports with these international norms of indispensable rights
    that the citizens of the world would be happy with, then we believe
    that if our structure as it is currently laid out matches what the
    international community has already said is workable, we are already
    there or just about there, and the minor tinkering that would
    have to take place with respect to the existing structure for military
    commissions is, in my estimation, and as much as I have to—
    I hate to disagree with Admiral Hutson, a much easier process to
    undertake than to try to, as I described it, gut the Uniform Code
    of Military Justice and the Manual for Courts-Martial.

  • Dr. SNYDER

    At 01:14:10
    14 seconds

    And I think that is the kind of discussion we will
    have over the next few weeks and month or two, and I suggest, Mr.
    Dell’Orto, the Chairman will want you to provide us your analysis
    of that in the way we can all analyze it just like we have Mr.
    Hutson.

  • Mr. BRADBURY

    At 01:14:24
    1 minute

    Mr. Chairman and Congressman Snyder, I just
    wanted to add one point, and that is that I don’t think that the implications
    of the Court’s decision in Hamdan are limited exclusively
    to the question of procedures for military commissions, because as
    I tried to lay out in my testimony, the Court’s ruling on Common
    Article 3 was an interpretation of the scope and application of that,
    of Common Article 3, and contradicted or superseded the President’s
    determination in 2002 that Common Article 3 does not
    apply. The Court essentially said this is not an international conflict,
    and therefore Common Article 3, which in the past has been
    read to apply only to internal conflict, civil wars, if you will, now
    has general application in our war with al Qaeda, and that has implications
    and ramifications beyond simply the procedures for military
    commissions.

  • The CHAIRMAN

    At 01:15:26
    12 seconds

    Okay. Any other responses?
    I thank the gentleman from Arkansas.
    The gentlelady from Michigan, Mrs. Miller.

  • Mrs. MILLER OF MICHIGAN

    At 01:15:38
    1 minute

    Thank you, Mr. Chairman. And
    thank the witnesses for all appearing before the committee today.
    We appreciate your service to the Nation and appreciate your testimony
    here today.
    I have been trying to listen to this. I am not an attorney. There
    is a lot of legalese going on here. I don’t even have a college degree,
    but I am one of the few Members of Congress. I am not proud of
    that, but that is just the way it turned out in my life, but I think
    I am a reflection of middle America.
    I will tell you, listening to the Supreme Court ruling, it just
    struck me as being incredibly counterintuitive, and when we think
    about the type of enemy that we are facing today, a new type of
    enemy, one that hides in the shadows, one that preys on the innocent,
    one that wants to kill us, and it has been—they have been
    categorized as—how we need to be civilized, these people do not
    meet the basic standards of civilized human beings. I think it is
    very difficult for us as Americans to even get our mind around the
    concept of a suicide bomber teaching a young person to be a suicide
    bomber and what that means. I mean, I don’t consider that to be
    civilized behavior.
    And as we have talked today about what the Supreme Court ruling
    actually says, that we need to have congressional participation
    in this, perhaps this could be very easily handled. As you mentioned,
    it could be easy. Could it be as easy as what Mr. Dell’Orto—
    I hope I am pronouncing your name correctly—has suggested, that
    we actually just ratify what the executive branch and the DOD has
    done and move on? That is my question.

  • Mr. DELL’ORTO

    At 01:17:17

    Ma’am, I believe that that is—that would be a
    very desirable way to proceed.

  • Admiral HUTSON

    At 01:17:17
    2 minutes

    You might not be surprised to hear that I disagree
    with respect to Mr. Dell’Orto. I think that—and I don’t disagree
    with your characterization at all. It goes back to what Congressman
    Hefley pointed out, though I think—which is that we
    have got the war on terror, and then on the other hand we are
    talking about prosecuting people. And what some of my colleagues
    here at the table have said—and to some extent, the way you
    phrase the question flies in the face of what Mr. Dell’Orto said earlier
    about presumption of innocence, you know. He said—we need
    to ensure that there is a presumption of innocence if we are going
    to prosecute people. Remember, I am saying that we don’t have to
    prosecute them, but if we decide that we are going to prosecute
    them, then we have to afford them those rights, which include not
    presuming that they are cutting everybody’s heads off and they are
    suicide bombers, but that we just buy into this presumption of innocence
    deal, and if we can do that, then we can create a system
    in which we will really be able to prosecute. But I think that if the
    opinion—and particularly Justice Kennedy’s discussion of the
    present or the pre-Hamdan commissions makes it pretty clear that
    there are some legal difficulties with it that would make simply
    this body simply endorsing what had been done before, although
    you would fix the regularly constituted part of it, I think you are
    going to run headlong into the indispensable guarantees part of
    what the Court said.

  • Mr. OLSON

    At 01:19:22
    1 minute

    I think it is a very, very good question. It is a very,
    very sound basis upon which to resolve this problem. Either, as Mr.
    Dell’Orto said, you start with a massive gutting of the Uniform
    Code of Military Justice, which was not created for this type of situation
    at all, it was created for our servicemen and women and has
    all sorts of rights in there. It does have the equivalent of Miranda
    rights in it, or the right to be cautioned that statements may be—
    either you start with something that is utterly unworkable and inappropriate
    and not designed for this process, or you start with
    what the President carefully and thoughtfully put together that
    was designed with the experts in the Defense Department to deal
    with these circumstances, and then if there is something wrong
    with it, add something to it.
    So that is—that I do think is the right way to go. It makes perfect
    sense. The only two things that the Supreme Court found that
    specifically talked about—anyway, that was wrong with the procedures
    was a quibble with respect to the standard for the admissibility
    of evidence. My own personal opinion is that what the President
    had outlined in the commissions made perfect sense, given
    battlefield conditions and the difficulty of obtaining evidence and
    that sort of thing, and the right to the accused—right of the accused
    to see sensitive national security classified information, that
    would be insane, in my judgment, to give to terrorists.
    So that the two things the Supreme Court found wrong that I
    was able to read in the opinion anyway are things that I think you
    would agree the President got it right. But if there are some things
    wrong with it, then that is the platform, that is the basis upon
    which to start.

  • Mrs. MILLER OF MICHIGAN

    At 01:21:20

    Thank you very much.

  • The CHAIRMAN

    At 01:21:20
    10 seconds

    Okay. I thank the gentlelady.
    The gentlelady from California, who has spent a lot of time on
    this issue, Ms. Sanchez.

  • Ms. SANCHEZ

    At 01:21:30
    4 minutes

    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?

  • Mr. DELL’ORTO

    At 01:25:53
    1 minute

    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.]

  • Ms. SANCHEZ

    At 01:27:06

    Thank you.

  • Mr. BRADBURY

    At 01:27:06
    3 minutes

    Congresswoman, I would say I would agree with
    your description of what a defense counsel would do in Hamdan’s
    case or another one of these cases if brought in the construct of the
    UCMJ. I mean, absolutely that is what I think would happen. All
    those motions would be interposed, and chain of custody of evidence,
    and all of those issues that would impede a trial under the
    UCMJ framework would have to be addressed, and it would be
    very difficult to go forward under those conditions.
    I wouldn’t say that the standard needs to be that none of these—
    that prosecutions would be impossible. I think the standard is that
    it is as a general matter a judgment. In this case it would be a
    judgment by Congress working with the Administration and framing
    legislation, a judgment that the use of those procedures is impracticable
    as a general matter in these kinds of cases.
    As to the coercive statements point, first of all, as the rules of
    the military commission process currently in place make clear, and
    as our treaty obligations suggest, we do not use as evidence in military
    commissions evidence that is determined to have been obtained
    through torture. That is simply not admissible if it has been
    obtained through torture. And that is consistent with our treaty obligation.
    It is a worldwide policy for the United States, and it is reflected
    in the rules currently for the military commissions.
    But when you talk about coercion and statements obtained
    through coercive questioning, there is obviously a spectrum or gradation
    of what some might consider pressuring or coercion short of
    torture. And I don’t think you can make an absolute rule. Again,
    I think it needs to be a judgment that is made by the fact-finder,
    and the way that that is addressed in the Detainee Treatment Act,
    which addressed judicial review of the combatant status review tribunals,
    those tribunals that judge that the detainee is an enemy
    combatant at the outset of the process, the way Congress dealt
    with that was to say that the commission is to weigh the probative
    value of that evidence, basically to weigh the probative value
    against the undue prejudice that might occur to the process from
    the use of evidence that may have been obtained through coercion.
    It didn’t create an absolute exclusionary rule.
    I think an approach like that is certainly more appropriate because
    arguments will always be made—when you don’t have something
    like Miranda rights, arguments will always be made that, oh,
    the questioning was coercive, even when we can agree it doesn’t
    amount to torture, it doesn’t—it doesn’t violate some fundamental
    standard of conduct that might apply. So you need—again, it is an
    area where some flexibility is needed.

  • Ms. SANCHEZ

    At 01:30:10
    17 seconds

    It sounds to me like you are saying that the minimum
    value would be the probative value to a reasonable person,
    which is what we see reflected in the standards, quite frankly, of
    the other tribunals that we see around the world with respect to
    war crimes.

  • Mr. BRADBURY

    At 01:30:27

    Yes. I think that is right.

  • Ms. SANCHEZ

    At 01:30:27
    16 seconds

    And I think it is very important for us to understand
    because someday we will catch Osama bin Laden, and then
    we have to decide how we are going to try him. And this is why
    these hearings and what we do becomes so important.
    Anybody else?

  • Admiral HUTSON

    At 01:30:43
    1 minute

    Yeah. If I may, I would draw a bright, clear
    line with coercive evidence for all the reasons that we draw that
    bright clear line having to do with the probative value of it, but
    also having to do with inhibiting interrogators or police, civilian
    context, from engaging in that kind of activity. I think that that
    is an important thing, and I also think that it is important for the
    reputation of the United States internationally.
    As I am sure you know, there is a raging debate with regard to
    the impact of non-U.S. law on the United States. I kind of fall in
    the middle of that. I guess what they are doing in international tribunals
    is interesting to me, but certainly not determinative. I
    would add to the probative value, it has to—you know, it has to
    have that at least, but I would add apparent authenticity and validity.
    There has got to be some standard by which the evidence is
    judged and admitted.
    We can’t just throw everything in there and
    then let the finder of fact sort through it. That is the reason you
    have a judge, which is one of the reasons that using a court-martial
    kind of system with modifications has value, I think.

  • The CHAIRMAN

    At 01:32:17
    14 seconds

    The gentlelady could reserve. We will have the
    responses to the last—her last question here in the second round
    if we could, and let’s go to the gentleman from Texas, Mr.
    Conaway.

  • Mr. CONAWAY

    At 01:32:31
    22 seconds

    Thank you, Mr. Chairman.
    Mr. Dell’Orto or Mr.
    Bradbury, could you describe for us what
    the President’s plan is that you simply want us to put into law?
    And also, what is the legal phrase for applying—creating a crime,
    and then say you were committed before the law was put in place.
    There is a legal phrase that I have lost.

  • Mr. BRADBURY

    At 01:32:53

    Ex post facto.

  • Mr. CONAWAY

    At 01:32:53
    13 seconds

    There you go. Would these changes—ex post facto
    apply to the detainees in Guantanamo if we do, in fact, make these
    changes in the law?

  • Mr. BRADBURY

    At 01:33:06
    41 seconds

    If I could say yes, they would apply, and that
    would not be an ex post facto, because ex post facto concepts go to
    the substance of the law, not by the procedures by which you are
    tried. So it would not be—if you are creating a brand-new crime
    and saying now people are subject to a brand-new crime, you can’t
    apply that ex post facto to a U.S. citizen under our Constitution.
    But here we are not talking about creating the substance or elements
    of crimes. We are talking about the procedures that would
    go into the bodies that would try those persons for those crimes,
    which are war crimes, crimes under laws of war.

  • Mr. CONAWAY

    At 01:33:47

    Okay. Would one of you describe the President’s
    current plan?

  • Mr. BRADBURY

    At 01:33:47

    Well, I think the plan is to work with Congress.

  • Mr. CONAWAY

    At 01:33:47
    20 seconds

    No. Oh, no, I am sorry. The tribunal that was
    struck down that you are saying we need to codify, would you describe
    for us what that tribunal currently looks like had it not been
    stuck down?

  • Mr. DELL’ORTO

    At 01:34:07
    2 minutes

    The current tribunal that has been struck down?
    Again, it has many of the fundamental—it would be very recognizable
    to most people in terms of many of the things that are already
    incorporated. You know, we have a presiding official who is a military
    trial judge, an experienced trial judge, the same judge who
    would be trying cases in our courts-martial process.
    We have the rule of evidence that we have already described,
    which is a very—which is a more general rule than we are used
    to in our civilian practice that is—admits a broader swath of evidence.
    We have appellate review in the review panel that has—of decisions
    that come out of the tribunal that includes four very distinguished
    individuals, Judge Griffin Bell, former Attorney General of
    the United States. We have Secretary—former Secretary of Transportation
    William Coleman. We have Judge Biester, who is a trial
    judge in Pennsylvania, and we have Chief Justice Frank Williams,
    who is the Chief Justice of the Rhode Island—Rhode Island Supreme
    Court as the four members who constitute the review panel
    of the appellate court, if you will, of the results of these trials.
    We have provisions for interpreters. We have provisions for ensuring
    that the accused is presented the charges which he will be
    facing well in advance of trial.
    We have provisions of assignment of military counsel, the same
    counsel—the same type of counsel who would defend our soldiers,
    sailors, airmen and marines and coastguardsmen, and they are
    courts-martialed, and they are defined as military defense counsel
    for the accused detainees. The accused detainee has the right to obtain
    a civilian counsel, assuming that civilian counsel meets certain
    qualifications that are set out in the rules. We have a requirement
    that for any charge for him to be convicted. Two-thirds of the members
    who sit on the court panel, which includes the presiding officer
    and up to, I guess, six other members who would be military officers
    just as we have in our court-martial process, would be the
    ones who would adjudicate guilt or innocence, and a judge’s sentence
    ought to be reviewed by the review panel—the appointing authority
    of the review panel when all of that is done.
    I don’t know if that gives you a sense of sort of the basic framework.
    I could go on with much more detail if we had more time,
    Congressman.

  • Mr. BRADBURY

    At 01:36:40
    34 seconds

    I would say, Congressman, that fundamentally
    these are procedures that are built on past military commissions
    that have historically and traditionally been used by the United
    States during times of armed conflict. And the use of military commissions
    and procedures like that go all the way back to George
    Washington when he was general during the Revolutionary War,
    and it has been a tradition through armed conflicts in our Nation’s
    history of using traditions like this, although these commissions
    add additional procedural protections that have not been in past
    commissions.

  • Mr. CONAWAY

    At 01:37:14

    Okay.

  • Mr. DELL’ORTO

    At 01:37:14
    22 seconds

    And I would also add, Congressman, since I was
    there at the start and took part in much of the drafting process,
    that we looked at the Manual for Courts-Martial as we were putting
    this together to borrow from it many of those things that are—
    that are sort of at the foundation of the UCMJ and the Manual for
    Courts-Martial.

  • Mr. CONAWAY

    At 01:37:36

    Thank you, sir. Appreciate it, Mr. Chairman.

  • The CHAIRMAN

    At 01:37:36
    11 seconds

    Thank the gentleman.
    And the gentlelady from California, Mrs. Tauscher, is recognized.

  • Ms. TAUSCHER

    At 01:37:47
    1 minute

    Thank you, Mr. Chairman. Thank you for being
    here.
    I think we all can stipulate that we are with Common Article 3
    interested in dealing with the potential of finding Osama bin
    Laden and being able to bring him to trial in a trial that we all
    understand is one of transparency, and where evidence potentially
    is gathered, and where we can find an adjudication process where
    the world sees Osama bin Laden put to trial in a fair way and a
    timely way, where he is potentially found guilty, and then he has
    a sentence that is commensurate with his heinous crimes. And I
    think that is the place we all have to start from.
    As my great colleague from California, Ms. Sanchez, has said, we
    have to kind of look to the future as we look into the past as we
    try to preserve all the great things that we have. And I am personally
    for looking at the reforming of the UCMJ and making sure, as
    Admiral Hutson has suggested, that we have things that have
    worked and build on them and move forward.
    I think one of everyone’s concerns is this issue of—that we are
    hearing bantered around in the press that potentially classified information
    would have to be made available, as both Mr. Dell’Orto
    and Mr. Bradbury have suggested, to defendants, and that, of
    course, would create a national security crisis for us. But I think
    we—the analysis that I have been shown is that both the Classified
    Information Procedures Act, CIPA, and the military rules for evidence
    for courts-martial, which is modeled after CIPA, protect the
    disclosure of any classified information whose disclosure would be
    detrimental to national security. Apparently this would apply in
    anything that we do going forward that would include reform of the
    UCMJ for potential military commissions. Do you all agree?

  • Mr. DELL’ORTO

    At 01:39:42
    1 minute

    Congresswoman, let me make two brief comments
    on that. One generally. When we try these defendants in
    these commissions at some point relatively soon, we must be mindful
    of the fact that we are trying them while the conflict continues.
    It is not as though we were conducting these trials at the end of
    World War II where much information that might have been highly
    sensitive, highly classified, that we certainly did not want to reveal
    to the enemy, would not be as critical a piece of information. Today
    if we are in the classified arena with some of this information,
    whether it is information collected through national technical
    means or sensitive sources and—sources that we have on the
    ground in other countries, that is—those are key ways that we are
    getting information about this particular enemy.

  • Ms. TAUSCHER

    At 01:40:45

    But that is the challenge of the asymmetry of
    this fight.

  • Mr. DELL’ORTO

    At 01:40:45
    20 seconds

    Exactly. And we can’t let him use our process,
    our due process, our legal system as one of his other weapons as
    he carries on this fight.
    Another factor to consider with respect to the military rule of evidence,
    I think it is 505, as Admiral Hutson indicated.

  • Ms. TAUSCHER

    At 01:41:05

    That is right.

  • Mr. DELL’ORTO

    At 01:41:05
    1 minute

    With respect to handling classified information,
    normally when we are trying somebody in or a soldier in our
    courts, we are trying him for something he has done with evidence
    that he has already had access to. He has mishandled that information.
    He has given it over to the enemy. He has been derelict
    in the way he handles it, and so he has already seen that evidence.
    We are not presenting to him anything that he hasn’t already seen.
    And so the concern there is not that the accused doesn’t see it, because
    he already has seen it, but that the world doesn’t see it.
    The third point I would make, and I am sad to have to say this,
    our track record in military courts-martial, in trying cases in which
    there is classified information, is not particularly good. We have
    had success in some cases, but I will tell you both at the trial level
    and at the appellate level, if you look back through the case histories,
    the histories of those cases, we have on balance done a much
    more poor job of prosecuting people than we would—than we have
    as a general proposition in cases that don’t involve classified information.

  • Ms. TAUSCHER

    At 01:42:21
    1 minute

    I think this is really an area of jurisdiction where
    we have to be enormously creative at the same time that we have
    to deal with the rule of law and the law of war. And this military
    rule of evidence 505, as you suggest, is one of those sticky wicket
    places where I think we are going to have to have counsel from
    various venues, Admiral Hutson. I hope you will help us with this,
    too, Mr. Olson.
    But for the record if you would each get back to the committee
    and me specifically as to your suggestions on how we deal with this
    issue, because obviously this is a baby in the bath water issue. We
    don’t want to have to divulge sources and methods, other operations
    that are going on, people in theater, identities of people at
    the same time that we are trying to adjudicate in a swift and in
    a fair way these potential captives.
    So I really want to yield right now because I know we have other
    people, but I think this is a very important issue. If anybody ever—
    if anybody else has a quick comment, I am happy to accept it.
    [The information referred to can be found in the Appendix beginning
    on page 119.]

  • Admiral HUTSON

    At 01:43:30
    25 seconds

    If I may, let me just say that I think it is very,
    very difficult for the United States of America to say to anybody,
    we know you are guilty, we can’t tell you why, but there is somebody
    that says you are guilty; we can’t tell you who, but we know
    they are reliable; we can’t tell you how we know that, but you are
    guilty.

  • The CHAIRMAN

    At 01:43:55

    Thank the gentlelady. The gentleman from Connecticut,
    Mr. Simmons.

  • Mr. SIMMONS

    At 01:43:55
    2 minutes

    Thank you, Mr. Chairman, for this hearing, which
    I consider to be historic; times of stress or times when our values
    really need to be preserved and protected. And I remember after
    the Boston Massacre in 1770 in Boston, Massachusetts, John
    Adams defended the British Redcoats. It was an unpopular decision
    for him to make, but that is what he did. And during World War
    II, 1942, April, May of 1942, when Hitler sent eight saboteurs to
    Florida and Long Island, Kenneth Royal, an Army colonel, took the
    very unpopular position of defending those saboteurs, six of the
    eight of whom were electrocuted here in Washington, D.C. So I
    commend the Chairman and the Ranking Member and the members
    of the committee as well as the panel for taking on this difficult
    issue.
    I served for over 37 years in the U.S. Army. I consider the UCMJ
    as something that was created for us as military personnel, and I
    can’t see clearly the application to enemy combatants or terrorists,
    as one of my colleagues said. These are folks that do not respect
    the rules of law. They take hostages, they kill noncombatants and
    innocent civilians, they cut people’s heads off, et cetera, et cetera.
    So I guess my question goes to the issue of what kind of model
    is going to work best. A colleague of mine who is a Coast Guard
    attorney has written an op-ed calling for a national security courts
    system, which take a little bit from the UCMJ and a little bit from
    military tribunals, and what he refers to is a new kind of law for
    a new kind of war. A new kind of law for a new kind of war. We
    have our traditional criminal courts. We have our tribunals and
    commissions. We have our UCMJ. But it occurs to me that we are
    in a new kind of war. We are trying to maintain our respect for
    our values in dealing with people involved in this new kind of war,
    and perhaps it is incumbent upon the Justice Department, Defense
    Department, and this Congress to shape an altogether different
    model for differing justice in this framework, and I would be interested
    in your comments. But before I hear the comments, I would
    like to ask the Chairman if we could insert this op-ed piece into
    the record.

  • The CHAIRMAN

    At 01:46:43

    Without objection, we will put it in.
    [The information referred to can be found in the Appendix on
    page 101.]

  • Mr. SIMMONS

    At 01:46:43
    9 seconds

    Gentlemen, a new kind of law for a new kind of
    war?

  • Admiral HUTSON

    At 01:46:52
    1 minute

    Mr. Simmons, I am generally familiar with
    that kind of concept, and I find it very intriguing. I am not sure
    it is the most efficient way to do it. And I take your point about
    the UCMJ.
    The UCMJ, as it is presently constituted, is clearly there to protect
    the rights of U.S. servicemembers and to efficiently prosecute
    them when they need to be prosecuted, and has done that very well
    over the years. What I am suggesting is that you could build on
    top of that an enduring, regularly constituted court to do the same
    kind of thing that that proposal would do. I think that, you know,
    certifies the sort of court—is certainly possible to create a court
    that is regularly constituted because this is the body that authorizes
    it, and that it protects the fundamental, you know—the words
    out of Article—Common Article 3 that we have been talking about,
    considered—the judicial guarantees considered to be indispensable
    by civilized peoples. A court, some other kind of court, could do
    that, absolutely, sir.

  • Mr. SIMMONS

    At 01:48:11

    And you reference the FISA Court that was created
    in the 1970’s to deal with a specific problem.

  • Admiral HUTSON

    At 01:48:11
    8 seconds

    Right.

  • Mr. BRADBURY

    At 01:48:19
    1 minute

    Congressman, I will jump in and say I agree with
    you completely. It is a new kind of war, and it does require a new
    kind of rules. That is what the President was trying to do, I think,
    and the Secretary of Defense with the existing military commission
    structure, and now what this Congress needs to focus on, I think
    a military commission-type approach is the right way to go.
    I think that rules that will need to be focused on, obviously, like
    use of classified information, I don’t believe that using the Classified
    Information Procedures Act or CIPA is the right way to go.
    That is designed for criminal trials of U.S. citizens in U.S. Article
    3 courts and the use of classified information in that context, and
    it really impedes the government’s ability to go forward with prosecutions,
    which in these circumstances ought to be allowed to go
    forward under different rules, and we can work on what those rules
    ought to be.
    The final thing I would say in terms of setting new rules for this
    war on terror is that we really think Congress needs to do something
    to bring certainty and clarity to the application of Common
    Article 3 and some of the vague phrases in Common Article 3 that
    I referenced in my testimony, because an important part of what
    needs to be done to bring sureness and certainty to those folks on
    the front line who are handling detainees—because again, the concepts
    in Common Article 3 have never been applied previously to
    an international conflict with a terrorist organization like al Qaeda,
    and we need to set those rules going forward for the United States,
    and we think they should be defined by U.S. law.

  • Mr. SIMMONS

    At 01:50:00

    I thank the Chairman, and I thank the panel.

  • The CHAIRMAN

    At 01:50:00

    Thank the gentleman.
    The gentleman from New Jersey, Mr. Andrews.

  • Mr. ANDREWS

    At 01:50:00
    1 minute

    Thank you, Mr. Chairman.
    In listening to the testimony and reading it this morning, it appears
    to me that we have two points of consensus and two very
    practical dilemmas. First, I think there is a consensus that none
    of us wants to treat Osama bin Laden’s bodyguard the way we
    would an American citizen accused of car theft. There is just no
    sense that the normal rules ought to apply.
    And then second, I don’t think anyone is saying that we should
    run an arbitrary process that does not command respect around
    the world as being transparent and fair. I think we are all saying
    essentially the same thing. The practical considerations I would
    like to focus on go to the discovery problem and the Miranda warning
    problem.
    Mr. Bradbury, I want to ask you a question about the discovery
    problem. Let us assume that we have a person who is not a U.S.
    citizen who is accused of participating with al Qaeda, and among
    the pieces of evidence against that person is testimony from a peer
    that this person has been engaged in terrorist activity. Also on the
    record is the fact that the accuser of the person has some normal
    garden variety grounds to be biased and prejudiced against that
    person. Let’s say there has been a romantic entanglement involving
    three people or a dispute over a commercial dispute; someone has
    a motive to tell a lie about the person. Should that fact be discoverable
    by the defense in the military commissions that we are talking
    about?

  • Mr. BRADBURY

    At 01:51:44
    1 minute

    Well, in your question, Congressman, is the other
    person who has given the evidence an intelligence source for the
    United States who needs protection? Because that raises yet another
    set of issues. But assuming that is not the case, then the
    identity of that person would be made known to the detainee defendant
    and his counsel, and the statement that may have been
    taken from that person—the person let’s assume is not available to
    appear at the military commission trial, so you are going to need
    to use some kind of hearsay statement, some kind of sworn statement
    or other statement that can be verified, and the fact-finder
    determines it is probative, it is reliable to rely on it, then I think
    in that hypothetical that the detainee defendant would—if he
    knows who that person is, would be able to raise issues about the
    bias of that person or the accuracy or correctness of the statements—
    of the statements made.
    If that person is an intelligence source for the United States,
    then that raises additional issues that would need to be dealt with,
    because information about an intelligence source cannot—we cannot
    allow that to get out to other terrorists who wouldn’t take very
    long to dispatch that.

  • Mr. ANDREWS

    At 01:53:04
    25 seconds

    What if it is the first assumption, and the accuser
    is not an intelligence source, but the accuser’s identity was discovered
    by an intelligence source? So, in other words, in the fact-gathering
    process to make charges against the detainee, an intelligence
    source tells our intelligence agencies, you know, yeah, this guy over
    here has some interesting information about the detainee. What
    about that?

  • Mr. BRADBURY

    At 01:53:29
    26 seconds

    Well, I think there would be a way consistent
    with fundamental fairness not to have to disclose to the detainee
    in these proceedings such that we might compromise our intelligence
    sources the providence of that—of that chain, in other
    words, how we came to that person, because that would in and of
    itself reveal a confidential intelligence source. But the tribunal may
    know that and judge that it is reliable.

  • Mr. ANDREWS

    At 01:53:55
    10 seconds

    If that issue itself were litigated in discovery, it
    should be the tribunal who determines whether it is a discoverable
    fact or not?

  • Mr. BRADBURY

    At 01:54:05

    In the first instance, I think so, yes.

  • Mr. ANDREWS

    At 01:54:05

    And that would be an in camera proceeding?

  • Mr. BRADBURY

    At 01:54:05
    40 seconds

    Well, in terms of the intelligence information
    that is at issue, if there is any, the classified information could be
    presented to the tribunal in an ex parte, in camera process that,
    in fact, is done, for example, with the International Criminal Tribunals
    for Rwanda and Yugoslavia where lots of times you have state
    secrets of the various nations involved or that may be very sensitive,
    and defendants may try to get discovery of that sensitive information,
    and in those tribunals it is available to go ex parte in
    camera to the tribunal to make a case for not presenting that information.

  • Mr. ANDREWS

    At 01:54:45
    8 seconds

    Were the discovery results you just articulated included
    in the order that was invalidated by the Supreme Court?

  • Mr. DELL’ORTO

    At 01:54:53
    20 seconds

    I believe they were, Congressman, to a large extent.
    I mean, the prosecution is obligated to provide to the defense
    all the evidence it is prepared to present as part of the trial, and
    to the extent you get into these collateral issues of the identity of
    the—of the intelligence source themselves that must be protected,
    I mean, that information I would think would be part of the file
    that would be—that is presented to the defense counsel.

  • Mr. ANDREWS

    At 01:55:13
    18 seconds

    Admiral Hutson, I want to ask a question about
    Miranda warnings. Is it your understanding under the military justice
    code that a person who is suspected, once the suspicion is established,
    it triggers the right to be represented by counsel; is that
    your understanding?

  • Admiral HUTSON

    At 01:55:31

    Yes, sir.

  • Mr. ANDREWS

    At 01:55:31
    12 seconds

    Do you think that right should extend to suspected
    detainees; they have a right to have counsel present with
    them during their interrogation?

  • Admiral HUTSON

    At 01:55:43
    36 seconds

    I think that once you take them—you know,
    we keep talking about the battlefield, and the world is the battlefield
    in some respects, but once you take them from where they are
    and put them at Guantanamo, if you are interrogating them for
    purposes of prosecution, then I think you do. If you are interrogating
    them for intelligence purposes, and you may be able to draw
    a bright line between the two where the intelligence—the intelligence
    interrogators are not sharing information with the prosecution
    interrogators. So I see a difference in that regard.

  • Mr. ANDREWS

    At 01:56:19
    17 seconds

    The bright line seems awfully difficult. If you ask
    the detainee whether he was part of conversations about a possible
    plot to blow up the Holland Tunnel, is that an interrogation for the
    purpose of prosecution, or is it an interrogation for the purpose of
    intelligence gathering?

  • Admiral HUTSON

    At 01:56:36
    15 seconds

    Well, you ask them two different times. One
    time you ask them is the intelligence inquiry, and the other time
    is the prosecution inquiry.

  • Mr. ANDREWS

    At 01:56:51

    Who decides whether the lawyer should be
    present before the interrogation?

  • Admiral HUTSON

    At 01:56:51
    12 seconds

    I think the rules decide that, the rules that
    you set up decide that.

  • Mr. BRADBURY

    At 01:57:03
    37 seconds

    Congressman, if I may, I think this—just to illustrate
    this would be entirely unworkable. I think when we have detainees
    at GTMO or elsewhere in the war on terror, we need for
    intelligence purposes to be able to question them in an unfettered
    way, and when we have exhausted the intelligence we think we can
    get, and we think we have got a case to make, we can then initiate
    a war crime prosecution, and at that point they can have counsel
    and they can have the availability of counsel, and we can move forward
    with a fair process. But we cannot intermix the two and try
    to draw that line because it is just going to impede our ability to
    protect the country through vital intelligence gathering.

  • Mr. ANDREWS

    At 01:57:40

    Thank you. I see my time has expired. I appreciate
    it.

  • The CHAIRMAN

    At 01:57:40
    11 seconds

    I thank the gentleman.
    Another gentleman from New Jersey, Mr. Saxton.

  • Mr. SAXTON

    At 01:57:51
    1 minute

    Thank you, Mr. Chairman, and I think it is great
    that we are holding this hearing today. It is very important set of
    subjects, I guess you would call it.
    I would like to ask a little bit different question, if I may. Based
    on my observations, the necessity for collecting information in prosecuting
    this war is historically different than it has ever been before.
    During the process of carrying out our oversight responsibilities,
    it seems to me there are certain conclusions one can come to
    in a practical sense, and one of those conclusions is that detainees
    provide a constant flow of information that is necessary for us to
    conduct successful operations.
    They are not the only source, but they are one of the sources and
    an important source. It has been suggested here today by Mr.
    Hutson, and I respect his opinion, that the UCMJ has been used
    as kind of a model for prosecutorial proceedings. Given the need,
    that we all know about, to collect information on this enemy, what
    effect would the adoption of a process such as that suggested by
    Mr. Hutson have on our ability to collect information?

  • Admiral HUTSON

    At 01:59:23
    1 minute

    Sir, I don’t think it would have a significant
    effect one way or the other. You can prosecute them first, and interrogate
    them, get the intelligence information after you have convicted
    them if they are convicted. You can get the intelligence information
    and then prosecute them.
    We run again, and your question points up the point that Congressman
    Hefley made earlier about conducting the war and at the
    same time that you are conducting the war, you are prosecuting in
    a judicial sense the people that you have taken off the battlefield,
    and that creates its own difficulties.
    But I think that we run into serious problems when we try to
    combine the two, the warfighting on one hand and the prosecution
    on the other. If we want not to prosecute them, that’s fine. But if
    you are going to prosecute them, I think that you need to do it in
    accordance with the generally accepted rules.

  • Mr. BRADBURY

    At 02:00:28
    58 seconds

    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.

  • Mr. DELL’ORTO

    At 02:01:26
    2 minutes

    Congressman, let me get back to the premise of
    your question because I think it is important. What is different
    about today than other combat we have engaged in in the past?
    Particularly going back to World War II and Korea, as a matter of
    general intelligence, you sort of know who the enemy is, who is
    arrayed on the other side of the line of battle. You know his order
    of battle. You know his division commanders, his battalion commanders.
    You probably know down to the company command level
    who these guys are.
    And when you take captives during that process, you generally
    know that the private, the corporal or sergeant doesn’t know much
    beyond what happened that day or what may be planned for tomorrow.
    If you get the general, you get the brigade commander who
    is a colonel, he is going to have more information. You are going
    to know to focus your information on him.
    When we pick up these guys, and Hamdan is probably a classic
    example—if he goes by his military occupational specialty, he is a
    driver. And what does that mean? He technically probably wouldn’t
    know much and probably wouldn’t be doing much as part of the
    battle, if you will, or the war, and yet it turns out he happens to
    be the driver for bin Laden. He happens to be a guy who moves
    weapons. He happens to be a guy who I think runs money as well.
    He does many, many things.
    You cannot conduct this fight without doing interrogations of
    these folks, but you can’t separate the nonactors from the actors in
    this. You have got to be able to talk to all of them, and you have
    got to do it, as Mr. Bradbury says, right now because that little
    gem of intelligence that guy may have about a cell phone number,
    about a safe house location, may lead you to a very, very significant
    find or very, very significant target.
    And so we have from the earliest days said our goal is to get intelligence
    from these folks. If we can prosecute them down the road
    and they have committed sufficiently serious acts to warrant prosecution,
    we will do that. But we are going to have to do everything
    we can to grab intelligence from them because this is a different
    type of war and the intelligence gathering is absolutely critical.

  • Mr. SAXTON

    At 02:03:50

    Mr. Chairman, if I could just suggest one of the
    things that we might want to do as a committee before we make
    any decisions on how to proceed is to have a session similar to this
    in a closed session. I think if some of the members who maybe
    haven’t had the opportunities that I have to view and understand,
    and maybe a lot of our members have, but for those who haven’t
    had an opportunity to really sit down and look in detail at individual
    cases, this becomes an even more important subject to the national
    security of this country. And so if I may just make that suggestion.

  • The CHAIRMAN

    At 02:03:50
    1 minute

    Let me say to my colleague from New Jersey, I
    think that is a great recommendation and let’s do it.
    Let me, if I could, just impose on my colleagues with the last
    question you asked because I think it is not entirely clear to me.
    Is the panel saying that if this person that you pick up in combat
    operations, in being interrogated says, yes, I’m a bomb maker, and
    I made the bomb that blew up the such and such, and you extract
    that information pursuant to your battlefield interrogation or
    shortly thereafter, that under the UCMJ that would not be admissible
    in a later prosecution?

  • Mr. DELL’ORTO

    At 02:05:19
    51 seconds

    Mr. Chairman, my argument as a defense counsel
    would be the following: When you picked him up, you, the soldier,
    the specialist, the corporal, the sergeant grabbed him by the
    scruff of the collar and took him into captivity, you had an idea
    who this guy was. You knew he was a bad guy; you knew he was
    an unlawful combatant. You knew based upon the intelligence
    going in you were likely to find somebody of this character. And he
    told you he was a bomb maker.
    Now you asked him about that; you asked him who he was. You
    asked him what his job was. I would argue that you as a soldier
    because you are subject to the code were obligated upon suspicion
    this guy was an unlawful combatant generally, regardless of what
    that might be, that you are obligated to advise him under his
    rights under article 31 of the Uniform Code of Military Justice.

  • The CHAIRMAN

    At 02:06:10

    Because he at that point has become the focus
    of suspicion of criminal activity.

  • Mr. DELL’ORTO

    At 02:06:10
    28 seconds

    Again, if you want to carry this to the extreme,
    as I would as a defense counsel, I would argue any one of these
    guys because they are all unlawful combatants. We have yet to find
    on the battlefield in Afghanistan a lawful combatant. They are in
    theory all guilty of unlawful belligerency which would trigger the
    obligation to advise them of their rights, in my opinion.

  • The CHAIRMAN

    At 02:06:38

    I think Mr. Hutson may have a comment.

  • Admiral HUTSON

    At 02:06:38

    Thank you, sir.

  • The CHAIRMAN

    At 02:06:38
    29 seconds

    Let me just ask, and I want you to go first, is
    it the position of any of you that that should—that should a person
    give an admission like that, I’m a bomb maker, upon a battlefield
    interrogation, if you will, that that should not be admissible in a
    later prosecution.
    Go ahead, Mr. Hutson.

  • Admiral HUTSON

    At 02:07:07
    21 seconds

    Thank you. If you were to superimpose UCMJ
    in total precisely as it is right now, that would be the unfortunate
    result. What I am suggesting though is that you modify it in such
    a way so that that would not be the result because I don’t think
    any of us would find that to be acceptable.

  • The CHAIRMAN

    At 02:07:28
    11 seconds

    Okay. So nobody recommends that.
    The gentleman from New York, Mr. Israel.

  • Mr. ISRAEL

    At 02:07:39
    2 minutes

    Thank you, Mr. Chairman.
    Mr. Chairman, much to my mother’s shame I never went to law
    school. I am not an attorney, which puts me at a decided disadvantage
    from a legal perspective, but it also gives me, I think, the advantage
    sometimes relying on common sense to sift through some
    of these complicated issues.
    While I am not a lawyer, I am a student of history, and one of
    the things that concerns me in this debate is repeated references
    to the fact that we need to understand that there are enemies that
    we have and adversaries and threats to the security of the state
    and threats to our national security interests. We all understand
    that, and all of us on this committee are strongly supportive of an
    aggressive military response to those enemies, but the fact of the
    matter is that every single repeal or diminishing of essential legal
    and human civil rights in history has always been based on the argument
    that there are enemies of the state.
    The whole experience of national socialists was to build new
    courts, peoples’ courts, special courts, military courts based on the
    argument that there are enemies of the state, there are enemies
    within, and we have to protect ourselves from those enemies.
    I am not arguing that our legal process echoes their legal process,
    but we have in our own experience and in this very hearing
    alluded to legal decisions made in our government that protected
    the interests of the state against adversaries at the expense of
    basic rights.
    Japanese Americans were interred and detained. General Grant
    expelled entire populations from Tennessee based on the concern of
    national security. Rights were impinged upon in the 1950’s based
    on threats of Communism.
    These decisions to reduce, repeal, diminish rights have never
    been made based in a vacuum. They have always been made based
    on the national security argument, which is why I think we have
    to be very careful in the rhetoric that we use.
    One of the concerns that I have, Mr. Dell’Orto, which Mr. Snyder
    has already raised is the suggestion that is anyone in fact supporting
    Miranda rights after a Marine kicks in the door, as you said;
    whether anybody is suggesting that the legal process has to allow
    for fingerprinting and the traditional evidence gathering that we
    experience in our own civilian justice system.
    So my question, Mr. Dell’Orto, is, who is making these proposals?
    Where have you heard any Member of Congress suggesting that we
    need to offer Miranda rights to someone after we kick in a door in
    Afghanistan or Iraq or elsewhere?

  • Mr. DELL’ORTO

    At 02:10:25
    1 minute

    Congressman, I am not suggesting that any
    Member of Congress has suggested that. What I am suggesting is
    that to the extent that some have said that the court martial process
    is, as currently configured, is the preferred method of dealing
    with the trials of unlawful combatants, that that is a model that
    we should follow without change I think is the problem that I suggest
    exists. So I am not attributing that to any individual. I will
    say no specific individual.
    I have heard, and no member of this body that I have heard, but
    I have heard some say and I think it may have been—I forget
    which congressman earlier mentioned the argument that the defense
    counsel for Hamdan made at the Supreme Court, that the
    court martial system is the way to go, that he should be tried by
    a court martial. That is ludicrous.
    Now here is the question. If we do agree that such things as Miranda
    rights, such things as very well-defined rules of evidence
    that require chain of custody, that require all these things that we
    know from our courts, from CSI Miami, from anything we read in
    the paper on any given day, if we think that there needs to be
    modification, then how do we get there.

  • Mr. ISRAEL

    At 02:11:52
    40 seconds

    I am sorry, my time is expiring. That is the second
    question I wanted to raise. I have heard different panelists talk
    about modifications, but it seems that we are talking in opposite
    directions but kind of agreeing on the same thing. Mr. Bradbury
    suggested that we not use the UCMJ in whole cloth, but that is not
    what Admiral Hutson is suggesting. In fact, his testimony said that
    specifically this is not to say, however, that the court martial system
    that is contained in the UCMJ and MCM couldn’t or shouldn’t
    be modified in some narrow and specific ways. What I am trying
    to figure out is, why are you both saying opposite things but agreeing
    on what has to be done at the end of the day?

  • Mr. BRADBURY

    At 02:12:32
    1 minute

    Let me say, Congressman, that that is where we
    are today. Because of the Supreme Court’s decision in Hamdan, the
    military commission process is dead in the water. We cannot move
    forward according to the court’s judgment unless the President
    uses the Uniform Code of Military Justice and the court martial
    process. That is what the court said.
    So that is where we are. And the court said, because it read the
    statutes of the Uniform Code to require uniformity, the President
    has to justify any variation and the court wasn’t convinced with the
    justification the President offered. So where we are today is we are
    stuck using the Uniform Code unless we can justify variations or
    unless this Congress sets out rules and procedures that allow us
    to vary from it.
    There may be agreement, and it sounds like there may be on
    some fundamental points so we can move forward very quickly
    with legislation which is terrific, but as of right now, the court has
    said the President has to use the Uniform Code of Military Justice.
    That is why we are using that as the thing we need to talk about,
    because we need to justify those variations.

  • Mr. DELL’ORTO

    At 02:13:44
    1 minute

    My point is, do we take away provision after provision
    from the Uniform Code of Military Justice and the Manual
    of Courts Martial to get to that medium, wherever it is? Or do we
    take the existing process the President has already proposed and
    say either the way it is right now or with minor tweaking there
    you can get to that result faster and easier. And that is all I am
    saying.
    I do have a concern though if we start from the former, that is
    dismantling the UCMJ or revising it, we will then be disrupting
    that particular process, which again has a very, very important history,
    a very important function with respect to our own service
    members, and I would hate for us to build a body of law based
    upon the UCMJ that then starts to cause difficulties in the application
    of that system with respect to our own service members.

  • The CHAIRMAN

    At 02:14:44
    8 seconds

    Thank the gentleman. The gentleman from
    Michigan, Dr. Schwarz.

  • Dr. SCHWARZ

    At 02:14:52
    2 minutes

    Just as an aside, I was raised on Fort Custer,
    Michigan, Mr. Dell’Orto, during World War II, where 6,000 German
    prisoners, mostly Afrika Korps, were housed, and had very
    close contact with them because my father, a lieutenant colonel in
    the Army Medical Corps was fluent in German and was called frequently
    to deal with medical problems that they might have, and
    then in another life, one of my jobs among many jobs in my second
    tour of duty in Vietnam was to take prisoners that were held by
    the South Vietnamese, North Vietnamese, Viet Cong, get them out
    of the hell hole prisons that the South Vietnamese had into American
    custody where they were treated exceptionally and sometimes,
    if they were of no value to us, simply released, as we have done
    with, I believe, 250 of the detainees in Guantanamo.
    That said, I can’t ask a question of high nuance about the law;
    I am not an attorney. Very simply, to get to the lowest common denominator
    of this hearing this morning, my belief is that this
    learned panel of attorneys would say that it is the job of the Congress
    as the result of the Hamdan decision to pass legislation
    which sets up a body or bodies to deal with the non-national actor
    detainees that the United States might take in any conflict that we
    find ourselves now or the future in the Global War on Terror. Is
    that an appropriate and correct premise?

  • Admiral HUTSON

    At 02:16:54

    Absolutely, yes, sir.

  • Dr. SCHWARZ

    At 02:16:54
    7 seconds

    That is what the Congress should do. That is the
    Congress’s job. That is what the court is telling us very clearly in
    Hamdan.

  • Admiral HUTSON

    At 02:17:01
    11 seconds

    I think the court is saying that this for too
    long has been a discussion between the executive and the judiciary,
    and it needs to have Congress right smack in the middle of it.

  • Dr. SCHWARZ

    At 02:17:12
    27 seconds

    Thank you very much because that is what I get
    out of it as well, and I think it is very simple. That is the lowest
    common denominator. That is where the rubber meets the road.
    That is what we should do. And I have no further questions. I
    would just say to Mr. Bradbury, Go Blue, and to Admiral Hutson,
    Go Green. Michigan and Michigan State.
    Thank you, Mr. Chairman. I yield back.

  • Mr. BRADLEY [presiding]

    At 02:17:39

    Mr. Larsen is next.

  • Mr. LARSEN

    At 02:17:39
    13 seconds

    Mr. Chairman, because I think the committee would
    benefit from someone known as Judge rather than Rick, I would
    like to yield my time to Mr. Butterfield of North Carolina.

  • Mr. BUTTERFIELD

    At 02:17:52
    1 minute

    Thank the gentleman for yielding and thank
    the four of you for your testimony today. This is certainly an important
    case, and it is one that we need to resolve very quickly. I have
    taken the time to read the Hamdan decision. It is 73 pages long.
    I have read it multiple times. We were out last week, and I had
    some free time. And I took my time and read the decision and the
    dissenting and concurring opinions.
    Even though, at first blush, the opinion may appear to be very
    complicated, when you filter through all of the discussion, it is really
    a very simple case, and so I agree with Admiral Hutson that this
    should be easy. The whole world is watching us.
    I was in Europe last week with 200 or 300 parliamentarians
    from the European Union, and I can assure you, they have great
    interest in this case, and they are watching very closely to see if
    we administer justice fairly to these individuals who have been detained.
    You know, the Uniform Code of Military Justice is a very comprehensive
    piece of rules. I think it is something that we can certainly
    use, probably not completely, but we can certainly use the
    UCMJ as a template to begin developing the rules of procedure for
    these types of cases.
    Let me start off by asking the representative from the Department
    of Justice, Mr. Bradbury, what is your definition of a regularly
    constituted court. There is a lot of discussion in the opinion
    about that. What do you consider to be regularly constituted?

  • Mr. BRADBURY

    At 02:19:28
    48 seconds

    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

  • Mr. BUTTERFIELD

    At 02:20:16
    12 seconds

    The Supreme Court also talked about the judicial
    guarantees that are recognized as indispensable by civilized
    peoples. Can you give me a brief interpretation of that?

  • Mr. BRADBURY

    At 02:20:28
    39 seconds

    Well, it was not a majority of the court that addressed
    that issue, it was Justice Stephens in his—the portion of
    his opinion that was only a plurality for four justices. In that portion
    of his opinion, he went off and looked at other provisions of
    treaty law that have not been ratified by the United States to tried
    to pull out of those concepts of customary international law.
    But Justice Kennedy did not see a need to join that part of the
    opinion. So I don’t think we have an opinion from the court on
    what that phrase means.

  • Mr. BUTTERFIELD

    At 02:21:07

    What do you think it means?

  • Mr. BRADBURY

    At 02:21:07
    53 seconds

    I will have confidence—it really I think just refers
    to procedures that ensure fundamental fairness measured
    against standards not of the U.S. article 3 courts in criminal prosecutions
    or even the UCMJ which is even more protective but looking
    at what nations around the world view as indispensable. I
    think there is a minimum common denominator. I have full confidence
    that any set of procedures that Congress adopts or ratifies
    by legislation will satisfy that standard. I will also say that I firmly
    believe that the procedures that have been used and set forth in
    the military commission process that the Secretary of Defense designed
    also satisfies that standard.

  • Mr. BUTTERFIELD

    At 02:22:00
    14 seconds

    There was also some discussion in the opinion
    about the crime of conspiracy not being triable by a commission.
    What does that do to our military if we cannot in the future try
    conspirators in the commission?

  • Mr. BRADBURY

    At 02:22:14
    1 minute

    Again, Congressman, that also was a portion of
    Justice Stephens’ opinion, which was only a plurality. Justice Kennedy
    did not join that part, that was part 5 of Justice Stephens’
    opinion. That was only a plurality of four in which he concluded
    that conspiracy was not a charge available under the laws of war.
    I think Justice Thomas did a very good job in his dissenting opinion
    in explaining why that is not the case; that in fact conspiracy
    is a recognized charge that can be brought under the laws of war,
    and of course, in this conflict, we are going to have a very difficult
    time convicting many of these folks of war crimes if we cannot convict
    them on the basis of conspiracy because this is an international
    conspiracy, al Qaeda, and many of them have joined that
    conspiracy and actively furthered it through overt acts that they
    may not have—obviously, they weren’t in the plane that flew into
    the World Trade Center on 9/11.

  • Mr. BUTTERFIELD

    At 02:23:18
    12 seconds

    Looks like we have run out of time. Let me
    just conclude by asking you this: Do you contend that commission
    order number 1 is sufficient to comply with the Supreme Court
    holding if we were to approve that?

  • Mr. BRADBURY

    At 02:23:30
    33 seconds

    We think if Congress in its judgment approved
    it, the Court would respect that, and it would be sufficient to comply.
    I am not suggesting Congress just rubber stamp. I think when
    you look at it and look at all these issues we have talked about,
    it is open to you to come to the conclusion that each of the procedures
    that the President and the Secretary of Defense settled on
    in military commission order number 1 satisfies the standards and
    that you are comfortable with that, and if you were to do that, I
    believe backed up by statute and Congress, that would be upheld
    by the court.

  • Mr. BUTTERFIELD

    At 02:24:03

    Thank you.

  • Mr. UDALL

    At 02:24:03
    13 seconds

    Mr. Chairman, I have a unanimous consent request
    that I be allowed to include a statement in the record of this hearing.
    [The prepared statement of Mr. Udall can be found in the Appendix
    on page 98.]

  • Mr. BRADLEY

    At 02:24:16

    Without objection.

  • Mr. UDALL

    At 02:24:16

    Thank you, Mr. Chairman.

  • Mr. BRADLEY

    At 02:24:16
    13 seconds

    Since we are pushing up against a vote, I am going
    to yield my time and recognize, I believe, next Mr. Ryan.

  • Mr. RYAN

    At 02:24:29
    1 minute

    Thank you, Mr. Chairman. I want to thank the panel,
    too. I think this has been a really helpful discussion for us, and I
    know the work unfortunately or fortunately is just beginning here.
    So we are going to certainly rely on you in the future.
    I think hearing the discussion today, Mr. Chairman, that we
    have a great opportunity here and as the Admiral has stated, an
    opportunity to highlight what is best about the United States and
    why we are different.
    One of the questions I did have to the Admiral is, as we are talking
    about the intelligence-gathering proposition, the other panelists
    have said this somehow could be impeded by some of the changes.
    How do we ensure that we can protect these rights that civilized
    societies may agree upon but at the same time gather and get the
    information we need?

  • Admiral HUTSON

    At 02:25:34
    1 minute

    I think with careful draftsmanship you will be
    able to draw a distinction between the purposes and also, in answer
    to the earlier dialogue about the battlefield kinds of statements,
    permit them in. In my mind, there is a big difference between
    what goes on in the hootch, in the battlefield, and what goes
    on at Guantanamo.
    Where you have taken them off the battlefield, you have got
    some time. They are no longer an immediate threat. All you are
    looking for is information. You are not protecting yourself personally
    or protecting your fellow soldiers.
    You create a regime by which—because I agree, intelligence is
    important. Valuable, usable intelligence is important. You create a
    regime by which that is derived and then you deal with the military
    commission aspects.

  • Mr. RYAN

    At 02:26:53
    8 seconds

    So you are not saying, as we pull someone off the battlefield
    in Afghanistan or in Iraq, that immediately we are going
    to have—they are going to have to have counsel?

  • Admiral HUTSON

    At 02:27:01

    No.

  • Mr. RYAN

    At 02:27:01
    32 seconds

    You are saying that weeks, possibly months later,
    they get back to Guantanamo—do you gentlemen disagree with
    that? This is kind of where I am unclear of what, Mr. Bradbury,
    may be your position or the Administration’s position would be. If
    we are not saying that that person needs legal counsel immediately,
    isn’t that plenty of time to gather any immediate information,
    the cell phones, the locations, the safe houses, those kinds of
    things. Couldn’t we get that information in the first couple of
    weeks?

  • Mr. BRADBURY

    At 02:27:33
    41 seconds

    I don’t think we should impose that kind of arbitrary
    limitation on our ability to get intelligence information. It is
    our view that you could transfer the person back to GTMO, continue
    to interrogate the person. You do not need to provide counsel
    if you haven’t charged them; for military commission purposes, if
    you have charged them—and you shouldn’t have to charge them
    with a crime within some artificially short period of time such as
    you do under speedy trial rules.
    I think, under the existing UCMJ framework, as I think every
    one on the panel agreed, you would have to provide them with
    counsel at the first point where you suspect that they may
    have——

  • Mr. RYAN

    At 02:28:14
    14 seconds

    We are not just going to take UCMJ and plop it in;
    we are going to modify it. I guess what I am saying is, how long?
    that is really the question here.

  • Mr. BRADBURY

    At 02:28:28
    40 seconds

    It would be our view, again, that if you look to,
    for example, the kind of timing concepts that are used in the international
    criminal tribunals, criminal trials in those contexts are to
    be brought without undue delay, or phrases like that, which allow
    for flexibility. But I don’t think you should say within two weeks,
    within two months, within a fixed number of days you have to
    charge the person with the criminal charges and provide counsel
    and then cut off intelligence gathering at that point. I don’t think
    that makes sense.

  • Mr. RYAN

    At 02:29:08
    7 seconds

    Isn’t there a point where if we have someone for five
    years or two years, that we have gotten all we can get out of them?

  • Mr. BRADBURY

    At 02:29:15
    48 seconds

    Well, sure. But keep in mind that these are combatants
    who, under the laws of war, we have every right to hold
    during the ongoing hostility so we may have them for a long period
    of time, and we have had the folks at GTMO for a considerable period
    of time. And if they have ongoing intelligence value, we should
    be able to take advantage of that. And if we have a case to be made
    that they have committed serious war crimes, we should be able to
    charge them and move forward with those prosecutions.
    We should be able to try the 60, 80 or 100 people at GTMO who
    we believe should be charged with war crimes and tried. We should
    be able to try them under whatever rules Congress now sets up
    even though they have been held now for some years.

  • Mr. BRADLEY

    At 02:30:03

    Mr. Ryan, I am trying to get everybody to have
    their five minutes.

  • Mr. RYAN

    At 02:30:03

    Will we have another round?

  • Mr. BRADLEY

    At 02:30:03
    18 seconds

    Hopefully not. We will have many more rounds,
    but I hope not today. I think we need to let the witnesses go on.
    Mrs. Davis.

  • Ms. DAVIS OF CALIFORNIA

    At 02:30:21
    1 minute

    Thank you, Chairman, and thank you
    all for being here. I wonder if we can go back a bit. I think the role
    of Congress and oversight responsibility in the time of war and
    oversight over the law of war is very important, and obviously, the
    courts looked at that, and I wonder if you could comment some. Is
    it fair to say that we have lost a number of years, perhaps even
    five in total in trying to—well, during this kind of imbalance really,
    I think, between the executive, the judiciary and the legislative
    branches. I am interested really in knowing whether you feel there
    was a time at which Congress could have much more appropriately
    stepped in or obviously the executive branch could have come to
    the Congress? And how you see that role?
    And I wonder, Admiral Hutson, if you could elaborate a bit on
    what you think the court gave the Congress as a charge in balancing
    executive power.

  • Admiral HUTSON

    At 02:31:34
    58 seconds

    Thank you. I think the court put it squarely
    in your lap. It would have perhaps been helpful in hindsight and
    retrospect if Congress had acted more quickly in this area or if the
    executive had come to Congress and said, we need help, but that
    didn’t happen. And to quote a popular phrase these days, we are
    where we are.
    So the only thing we can do is move forward. I think Congress
    needs to move forward quickly but deliberately on this because it
    is an important issue. But I think it is completely now, constitutionally
    and by the Hamdan decision, in your ball park.

  • Ms. DAVIS OF CALIFORNIA

    At 02:32:32
    7 seconds

    Anybody else want to comment on
    that specifically? No.

  • Mr. BRADBURY

    At 02:32:39
    28 seconds

    I guess I would just say, when the Administration
    set up the military commission process back in 2001 it certainly
    intended to move forward with it quickly and hoped that
    that would be the case. And for a variety of reasons, it hasn’t been,
    and court intervention has been part of that, and I agree, we are
    where we are.
    Certainly, Congress does have authority to define and punish violations,
    crimes against the law of nations, and we are here to work
    with Congress now so that we can get this process moving forward
    again.

  • Ms. DAVIS OF CALIFORNIA

    At 02:33:07
    45 seconds

    Given that we might tweak the military
    Commission Order Number 1 of the President or move to what
    would be a sizeable modification I think on the Uniform Code of
    Military Justice, what kind of other external controls do you think
    would be important? Is there something else that, from an appeals
    point of view, that the Congress ought to be looking at, whether I
    think suggestions that a tribunal would be subject to the supervisory
    authority of the Court of Appeals for the Armed Forces; is
    that an appropriate direction that the Congress should be taking
    to consider that?

  • Mr. BRADBURY

    At 02:33:52
    1 minute

    Well, I guess I would say, Congresswoman, that
    Congress in some sense has decided this issue in the Detainee
    Treatment Act where Congress set up a process for judicial review
    on appeal of military commission judgments. Final judgments of
    conviction of military convictions can be appeal to the U.S. Court
    of Appeals for the D.C. Circuit and ultimately if necessary by
    certiori to the Supreme Court. One approach would be to keep that
    structure of appeal and judicial review in place. I think an important
    part of that would be, as Mr. Olson suggested, ensuring this
    time around through I guess it would have to be ironclad language
    in your statute that all the other collateral habeas litigation does
    not move forward. But this is the exclusive avenue for judicial review
    of the military commission process.
    Again, judicial review of military commission proceedings is a
    historic, new development. I mean, historically, there has not been
    that, and so—but I think the DTA sets up a process.

  • Ms. DAVIS OF CALIFORNIA

    At 02:35:04
    10 seconds

    Do you see any impact of Hamdan on
    the detainee act? Should it be changed in any way as a result of
    the Hamdan case?

  • Mr. BRADBURY

    At 02:35:14
    45 seconds

    Certainly, one way is I think what Mr. Olson
    suggested and what I just suggested; I think the court read the
    provisions in the Detainee Treatment Act which I think were clearly
    intended by Congress to cut off jurisdiction for all pending habeas
    litigation and other litigation challenging the detention of
    these enemy combatants other than the one avenue for appeal to
    the D.C. Circuit that Congress intended to set up, but the court
    read that—the court just got right around that. And I think that
    you need to look at that again because I think that litigation needs
    to be shut off, and you need to control the review through one manageable
    channel of review.

  • Ms. DAVIS OF CALIFORNIA

    At 02:35:59

    Thank you, Mr. Chairman. I see my
    time is up.

  • Mr. BRADLEY

    At 02:35:59

    Mr. Cooper.

  • Mr. COOPER

    At 02:35:59
    25 seconds

    Thank you, Mr. Chairman. I appreciate the patience
    of the witnesses and also the tremendous personal sacrifice
    that Mr. Olson in particular has already suffered in the war on terror.
    The Constitution says in article 1, section 8, that Congress shall
    set rules of capture on land and sea. I would like to ask the witnesses
    what they think that phrase means.

  • Admiral HUTSON

    At 02:36:24

    Precisely what it says.

  • Mr. COOPER

    At 02:36:24

    Others?

  • Mr. BRADBURY

    At 02:36:24
    11 seconds

    Well, I don’t think it has been actually fully developed.
    I think there are few sources on what it means.

  • Mr. COOPER

    At 02:36:35

    I asked what you thought it meant.

  • Mr. BRADBURY

    At 02:36:35
    40 seconds

    I do think that it provides some authority for
    dealing with the captures in the war on terror. There is a view that
    it is limited to seizing of property and ships at sea, that kind of
    capture. Ultimately, I don’t know if that view is sustainable, but
    I will say, Congressman, that never in the history of the country
    has Congress entered into the areas where we are now contemplating
    providing rules by legislation. These have been areas traditionally
    left up to the executive in time of war so we need to proceed
    extremely cautiously in these areas.

  • Mr. COOPER

    At 02:37:15
    1 minute

    Not everything in life has a precedent. There was,
    however, a very powerful precedent in Youngstown Steel. Justice
    Jackson is widely quoted as saying the President’s wartime power
    is at its zenith when he has gotten even the concurrence or consultation
    of Congress.
    This is an ironic age that we are in because although we have
    a Republican White House and a Republican Congress, there has
    been remarkably little consultation. The Hamdan decision might
    not have ever occurred if there had been prior consultation. As you
    point out, now we will be consulting with each other.
    But it is not only this case of the President’s wartime powers.
    Senator Graham was particularly forceful on this yesterday.
    There
    are so many areas that the White House has simply not conferred
    with Congress, a Republican Congress, on war powers.
    So can I ask what your thinking is on why the White House has
    refused to confer? Because doesn’t the White House want its wartime
    powers to be at their zenith?

  • Mr. BRADBURY

    At 02:38:20
    52 seconds

    Well, Congressman, in the Hamdan case, it was
    the position of the United States in that case that the provisions
    of the UCMJ and the authorization for the use of military force
    that Congress passed in the wake of 9/11 did provide positive and
    affirmative support for the President’s military commission process.
    So it was the position that we in fact had the support of Congress
    in that case. I think the court may view that differently.
    I will say that obviously I can’t comment on the full range of
    issues that you raised by your question, but I think the President
    has endeavored to keep Congress informed through the traditional
    channels; for example, through briefings and notification to the relevant
    committees with respect to different activity, certainly this
    committee, on wartime activities.

  • Mr. COOPER

    At 02:39:12
    20 seconds

    Mr. Bradbury, the Republican chairman of the
    House Intelligence Committee released a letter last week saying he
    had not been properly informed as the chairman of the House Intelligence
    Committee.
    You were quoted in the newspaper yesterday as saying the President
    is always right. And I hope that is a misquote because I have
    never met an infallible human being yet.

  • Mr. BRADBURY

    At 02:39:32
    16 seconds

    Neither have I, Congressman. I am glad you
    brought that up. I guess that shows I shouldn’t try to be humorous
    when I am testifying. That was a tongue-in-cheek comment. Nobody
    is always right, and I certainly didn’t mean to say that other
    than in humor.

  • Mr. COOPER

    At 02:39:48
    14 seconds

    Let me move on since the time is so short. The sovereignty
    issue with Guantanamo, who is the sovereign power in
    Guantanamo?
    Mr. Olson, you stressed that in your comments.

  • Mr. OLSON

    At 02:40:02
    20 seconds

    The agreement between the government of Cuba and
    the United States makes it absolutely clear and no court so far has
    disturbed that conclusion that the sovereignty remains with Cuba.
    There are limitations on what the United States may do there to
    commercial and other——

  • Mr. COOPER

    At 02:40:22

    Are you saying that Cuban law controls in Guantanamo?

  • Mr. OLSON

    At 02:40:22
    29 seconds

    No, and I should allow the government lawyers to
    answer that question because I am no longer representing the government,
    but the agreement with respect to that makes it clear
    that with respect to that area, like in many other agreements
    throughout the world, U.S. law may appropriately govern property
    that is in the custody of the United States, although sovereignty
    remains——

  • Mr. COOPER

    At 02:40:51

    U.S. law doesn’t apply, Cuban law applies. What
    law does apply there?

  • Mr. OLSON

    At 02:40:51
    11 seconds

    Again, I want to defer to my colleagues representing
    the Administration.

  • Mr. COOPER

    At 02:41:02

    But you stressed this point very strongly in your
    testimony. Whose law applies?

  • Mr. OLSON

    At 02:41:02
    26 seconds

    There is an area where the Commander-in-Chief has
    responsibility to determine battle place decisions, who fires a gun,
    where the troops will go, and so forth. And under those circumstances
    the Constitution quite properly allocated that responsibility
    to the President.

  • Mr. BRADLEY

    At 02:41:28
    10 seconds

    Mr. Cooper, I want to give Ms. Bordallo a chance
    to ask her questions, too.
    Thank you. Ms. Bordallo.

  • Ms. BORDALLO

    At 02:41:38
    37 seconds

    Thank you very much, Mr. Chairman, and thank
    you to the panel. This certainly is a very critical concern.
    I have just one question. I had a couple of questions. But in light
    of the Hamdan ruling of the Supreme Court and the memorandum
    issued by Secretary England concerning the application of article 3
    of the Geneva Conventions, could you foresee a situation in the future
    where our Nation would not adhere to article 3? And if so,
    what kind of situation would that be, and why would it justify once
    again disregarding the Geneva Conventions? That would be for
    you, Mr. Bradbury.

  • Mr. BRADBURY

    At 02:42:15
    2 minutes

    Thank you, Congresswoman. We have not disregarded
    the Geneva Conventions. We brought a good faith interpretation
    of the Geneva Conventions. And again, the court has not
    said that al Qaeda detainees are prisoners of war subject to all of
    the rules and privileges of the Geneva Conventions. The court simply
    construed one article of the Geneva Conventions, common article
    3, and said, contrary to the President’s determination, this in
    fact is not an international conflict because it is not between nations,
    and therefore common article 3 applies in our war on terror.
    That is, we believe, quite a dramatic concept because I don’t think
    the drafters of Geneva in drafting that provision intended to cover
    or even anticipated conflicts between nations like the United States
    and international terrorist organizations. But be that as it may, the
    court said that applies.
    Now that brings with it a number of standards, substantive
    standards, and some procedural requirements. And as I said in my
    testimony, most of the substantive standards are quite clear, and
    we can all agree that they are condemnable conduct; they are in
    fact the kind of crimes against humanity that al Qaeda commits.
    There are some very vague phrases such as humiliating and degrading
    treatment. These are the kinds of phrases that in past
    treaties and recent treaties like the Convention Against Torture
    and the International Convention For Civil and Political Rights
    have caused the United States to take reservations to those treaties,
    carefully defining those phrases by reference to U.S. constitutional
    law so we can all be sure it is based on a U.S. understanding
    of the proper standards and not international understandings,
    which may be different from ours and may evolve.
    We don’t have such a reservation to common article 3 currently,
    and so the meaning of that phrase, those phrases, which are quite
    vague, will be uncertain and will be subject to interpretations by
    foreign and international tribunals and other governments, and
    they have been applied, in certain respects, in ways that are quite
    reasonable. In other respects, they have been applied in very broad
    ways, which might condemn the kinds of conditions that are in
    U.S. prisons for example. And we need to be very careful because
    now as a result of the court’s opinion a violation of those standards
    suddenly is a war crime under title 18 of the U.S. code. So it puts
    at risk all of the U.S. personnel handling it.
    We think Congress can act by statute to bring definition and certainty
    to the meaning of common article 3 and implement it for the
    United States. We think that is consistent with our treaty obligations,
    and it can make those terms certain, and we think that is
    very important as we move forward.

  • Ms. BORDALLO

    At 02:45:08

    If these changes are made then the situation perhaps
    would not occur again, is this what you are saying?

  • Mr. BRADBURY

    At 02:45:08
    14 seconds

    We think we can address that, that the Congress
    can address those risks through legislation.

  • Ms. BORDALLO

    At 02:45:22

    Thank you, Mr. Chairman, for the opportunity to
    ask my question.

  • Mr. BRADBURY

    At 02:45:22
    15 seconds

    Thank you. We have gotten to the end of our witnesses
    and seeing we are down below ten minutes in the vote, I am
    going to yield to the Chairman for just a moment.

  • The CHAIRMAN

    At 02:45:37
    1 minute

    I want to thank you the gentleman from New
    Hampshire for running this hearing so effectively here while I was
    gone.
    Gentlemen, I would like to thank you for being with us, but also
    ask you if you want to make any recommendations as to the substance
    of the structure or anything elsewhere you think we would
    be—that you have some advice for us, without objection, we will
    leave the record open. And please make any further recommendations
    you would like to make to us on how we construct this new
    body of law. I think we are going to be acting, and whether we get
    this in time to package it with the conference report working with
    the Senate or it comes in later, I think we definitely are acting. So
    it is going to be there. This has been I think very, very instructive.
    You have been most valuable in talking to us today. Thank you
    very much. As you can see, we had full attendance, lots of people
    with lots of great questions, and your testimony was very, very
    good. Really appreciate it. Thank you.

  • Admiral HUTSON

    At 02:46:48

    Thank you, Mr. Chairman.

  • Mr. BRADLEY

    At 02:46:48
    1 minute

    Thank you, all of the witnesses, and I get the responsibility
    of adjourning the hearing.