jack one two three four five one two three four five microphone task force that would review america's current terrorist detention policies and practices and recommended a path forward within six months chairman many in congress were skeptical of this approach it seemed unwise to have a policy to close gitmo without a plan we immediately pointed to the danger of establishing a definite date to close gitmo without first having identified an alternative location to detain these dangerous terrorists additionally we warned them policy backing from the executive branch would be filled by unelected judges who are not accountable to the american people are all my concern was that our military personnel serving in iraq and afghanistan could be vulnerable because of a lack of specific guidance from the commander in chief i had the opportunity monday with three of my colleagues to go to get and it was quite an education and i have all solid view of what i think should be done there now and probably different from what i would have thought we could go but as we were flying back from we receive notice that the administration would not meet the president's self imposed six month deadline for meeting the president's new detention policy disturbing on many levels and deserves the attention of the american people on one hand i commend the president for four for the delay on the other hand it puts the trials of things that we're working on down there in suspension that that that i think causes some real problems so we're kind of between a rock and a hard place earlier this year i joined with many in congress to support legislation which would have required the president to notify a state governor and legislature sixty days prior to the transfer or release of a get mo detainee into their state number to obtain the consent of the state governor and legislature to transfer or release and three certify that the con that the transfer or release  detainee would not adversely affect the national security the united states or residents of the united states similar language was adopted by this committee in the house and in other words congress has made a bipartisan statement that it cannot fund any policy until it receives a plan given the six month extension for the detainee policy task force the president self imposed deadline to close gitmo by january two thousand and ten i'm concerned congress will be handed a pre determined outcome of this would be a not acceptable outcome given the vacuum of information surrounding the administration's detainee policy today's testimony takes on even greater importance let me briefly lay out my views on the issues i expect our witnesses cover today mr chairman a comprehensive detention policy must include a strengthened authority to detain and a preventive detention framework states and a clear framework that does not favor prosecuting detainees and federal criminal courts but prosecutors violations of the laws of war in military commissions a commission system that protects sensitive sources and methods and is tailored for the of the battlefield and finally a plan that ensures that detainees we transfer or release from u s custody do not return to the battlefield and threaten our forces or citizens the issue of transfer and release that gives me pause when i visit get more on monday one of our briefers showed us a picture of a former detainee that was released because he was compliant and seemed to no longer pose a threat picture showed him holding a child it turned out we were wrong later blew him self up and killed twenty five people in baghdad we've been wrong according to fourteen percent of the time there we're getting it wrong in our iraq and afghanistan too just this week the new york times reported that detainees released from american prisons in iraq could have been the ones that carried out an attack on a rest run wounding scores of people every time we get a wrong the consequences are fatal we need to be honest about the risks of releasing detainees i afghanistan and especially the united states i look forward to your testimony and i hope that the discussion we have today will give this congress and the american people a better understanding of the president's detainee policy thank you and  record in the interest of time i'll just read an abbreviated version on january twenty second two thousand as was pointed out president obama signed executive orders one three four nine two and one three four nine three which established two interagency task forces appropriate disposition of the detainees currently held at guantanamo bay and another to review detention policy generally these task forces consist of officials from the department of justice state and homeland security and from our u s military and intelligence community over the past six months these task forces  worked diligently to assemble the necessary information for a comprehensive review of our detention policy and the status of detainees held at guantanamo bay i am pleased to appear today along with david kris of the department of justice to report on the progress the government has made in a few areas including especially military commissions reform let me begin with some general observations about the progress all told about seven hundred  individuals have been detained at guantanamo approximately five hundred fifty of those have been returned to their home countries or resettled in others at the time this new administration took office on january twentieth two thousand and nine we held approximately two hundred forty detainees at guantanamo bay detainee review task force has reviewed and submitted recommendations on more than half of those so far the task force has approved the transfer of substantially more than fifty detainees to other countries consistent with security and treatment considerations and a number of others have been prosecution team for potential prosecution either in an article three federal court or by military commission additional reviews are ongoing and the process we believe is on track we remain committed to closing the guantanamo bay detention facility within the one year timeframe ordered by the president a bipartisan cross section of present and former senior officials of our government and senior military leaders have called for the closure of the detention facility at  to enhance our national security and this is ministration is determined to do that but one other thing i'd like to add is we talk a lot about closing guantanamo bay detention facility and a some of you on this committee know visited there military personnel at that facility are truly professional and so our discussions about closing that facility should in no way reflect upon what i believe is first rate dedication and professionalism of that guard force thank you security functions and personnel and our essential mission is to protect national security using all lawful methods consistent with civil liberties in the rule of law including but not limited to prosecutions in article three courts and in military commissions in the previous administration national security division assembled a team of experienced federal prosecutors drawn from across the country to is now my deputy and a former member of the team has since been recalled to active duty and is the chief prosecutor you know and see as the president has explained when prosecution is feasible and otherwise appropriate we will try terrorists in federal court i prosecuted a group of violent extremists in the one nine hundred ninety s like they are more modern counterparts they engaged in what would now be called i think  fair and the trials were very challenging but the prosecution succeeded not only because it incarcerated the defendants some of them for a very long time but also because it deprived them of any shred of legitimacy in their anti government believes military commissions can help do the same for those who violate the laws of war that is not only detain them for longer than might otherwise be possible under the laws of war but also random illegitimate war criminal to do this effectively however the commissions themselves must be reformed in the legislation now pending in the this is a tremendous step in that direction you know from my written testimony and that of johnson that the administration very much appreciates the pending legislation and supports much of it although i can't refer here to precise publicly and i think it would be worth just explaining the three essential principles that are in body in that protocol the first is as the president stated in his speech at the national archives we need to use all elements of our national power to defeat our adversaries and that is including but not limited to prosecution in both article three courts and in military commissions second article three courts which have one question legitimacy are also effective in protecting national security and military commissions as we propose to reform them which have unquestioned effectiveness are also fair and legitimate now i suspect there are many people in this room or perhaps elsewhere who might agree only with the first part of the sentence that i just stated and there will be others who agree only with the second part but we think both parts are right and that leads to the third and final principle the choice between the two available prosecutorial for need to be made by professionals  close and careful review of the facts of using criteria stablished by policymakers and these are reflected in the protocol we cannot afford consistent with the first two principles  thank the gentleman star is the necessity of keeping american citizens safe whatever comes to pass th to capture and detain the enemy is as old as the army itself it's a basic concept inherent in what the us military does capture detain and as recently as two thousand and four the supreme court in the hamdi decision reiterated that inherent within the authorization granted by congress in two thousand and one to go to war was the ability to detain those who are captured now this president and this administration in march revised the definition of our detention of already to more closely aligned detention authority with the authorization the congress passed in two thousand and one and that the authorization for the use of military force as informed by the laws of war we believe that that definition which we're now using in the courts with respect to guantanamo is the appropriate and sufficient legal authority to detain people who you've referred to mr chairman as those who are threats to the american people threats to our national security but for whom we do not choose to prosecute in other words they can be held as long as the war continues what the president said in his national archives speech is that for that category of people if we have such people at the end of this review process there should be clear defined legal standards and there should be a periodic review so that if we prevail and we don't prosecute don't prosecute them we're not just throwing away the key there is a periodic review that ought to be in place to do a form of threat assessment keep them to the end of the war but there's no one in the insurgency or a guerrilla warfare to run up the white flag and sit down and send a peace treaty that is absolutely correct we're not going to see a peace treaty signed on a battleship which is why we believe that some form of periodic review i don't know whether that's every couple of months american people that's not going to happen but i can assure the american people is that when i and my colleagues at the department of defense go through this review  process and look at threat assessments look at the classified and unclassified evidence that we have about each detainee saying that weighs most on my mind certainly is this a person who is going to return to the fight and to me that is the most important factor of valuating that consistent with the law consistent with the rule of law so it's it is the thing that motivates us one way or another very cognizant of those statistics since january the twentieth of this year to your knowledge have any of those that have been released is public and basically what the protocol says is that there is a presumption that where feasible referred cases will be prosecuted in an article three court in keeping with traditional principles of federal prosecution nonetheless where other compelling factors make it more appropriate to prosecute or form military commission it may be prosecuted there and then the document goes through three sets of factors  that are kind of traditional factors prosecutors look at to determine whether that is prosecutable should be prosecuted in one form or another i suspect that will be a fact intense case by case review o the document itself i was i was concerned about that very issue when we negotiated a document and i would not want some line prosecutor or the media to we prejudge the case because we've referred it to one form or another and that therefore you must indict that case and so at the end of the document it refers to the independence of authorities that however the protocol works it's still up  to the u s attorney or the chief prosecutor in the military commission to exercise their own independent judgment in making the determination that a case can and should be prosecuted you can't for example eliminate grand jur are going to make their own decisions in these cases nor should we is there concern that by bringing them i guess if you try them under article three you would bring him to the united states try him in a federal court i would assume so yes  is there any concern that they because that would happen and they pick up additional constitutional rights that some may feel they shouldn't have mr chris could speak to that better  process but you know we obviously do have the rights that we enjoy in federal criminal prosecutions reflected in the constitution in the rules of federal criminal procedure and i think a pretty good track record in cases where we've prosecuted alleged terrorists i would just sort of two points i guess congressman with respect to the way the protocol is going to with the four of us went to guantanamo on monday we had an opportunity to meet with the lead process his preference was that all all of the trials be done in the military by the military  commission ok i mean that is really that's not the administration's position that we make a bright line determination sitting here today that all of the cases be prosecuted they are but rather that they be worked up and evaluated in a case by case fact intensive way looking carefully at all of the elements of the case and then make a decision about which is the appropriate forum but that we do that working together the way i have worked together on the protocol and the  second point to make about it is that these kinds of forums selection choices are not alien to government officials they're similar to choices that have to be made all the time whether it be between a federal and a state court when a u s court in a dividing up into two systems in the preference that are going to one of the other might buttress the view that military commissions are second class type of work is a very good point i mean first i don't mean to minimize the challenges associated with this it is a unique situation we are working hard and people in our shops to do this to do this right  difficult challenging consequential we think we can do it we're set up to do it i think it's vitally important on the last point you made to understand we are working very very hard with the congress now we're actively discussing amendments to the military commissions act with the senate counterpart of this committee who are working with the congress who in the congress are you working with the senate armed services committee as you know has reported out the eleventh senator levin's bill they  offenses made punishable by this chapter is trial by military commission under this chapter i'm aware of that that's the sense of that committee in a possible sense of the congress what i meant was that just to respond to the second class justice point we are investing in the congress is investing the huge amount of energy and effort to reform military commissions act in a variety of ways you know and we think with those reforms the military commission system would not be a we've let me let me we don't want that we don't think that and we don't want to prejudge we want to work these cases one of the time and make a choice on a case or have definition that will have to be some judgment made if you decide that one goes here one goes there absolutely right and we really can't control the perception of that process once the media or other people get hold of it we can't control how the perception will be well it's certainly true that i don't make any claim to be able to control the media but mr johnson and i are probably nobody in this room but we're here to tell you and i think to tell people who are listening to this that it is not the case that military commissions as we're proposing to reform them will be second class congressman if i could just add to something captain john murphy is a career professional he's a prosecutor the chief prosecutor you referred to a moment ago he spent seventeen years as an assistant u s attorney like many of the military officers i encounter i would expect him to be bullish and optimistic and proud of his mission so it doesn't surprise me that he would tell you that he thinks we should handle all these cases and military commissions and that he thinks he can do so so he's not alone in that we had a hearing last week where we had a jag from each of the services and i trying to set in your shoes to make a determination as to which forum in which to try  offered in the each other to try in a federal court before a jury there are certain hearsay rules that are quite strict in a drive in my understanding is that certain affidavit certain statements  was already under indictment for the east africa embassy bombings in the southern district of new york where others who had been indicted with him had already been tried so i think it's appropriate to look at that as a bit of a accused of being associated with al qaeda or the taliban have not fought against the united states or coalition forces in afghanistan or iraq we have a number that are still there but have not been can say about the current population at guantanamo is that the overwhelming majority of them were captured in what we would consider the conventional battlefield circumstances in in afghanistan so i hope that answers your question i can't give you exact numbers about the legion they were picked up because of their association not because they were involved with any of these groups that my correct overwhelming majority were captured in conventional battlefield circumstances where our military was in afghanistan  authorization of this congress in two thousand and one to engage the taliban and al qaeda forces now have any of the people that i just mentioned have they been trite but any of the court we've had three convictions thus far in military commissions many of us obviously believe that we ought to be able to move more efficiently in those cases but so far they've been three convictions but you don't know the number i mean it could be five it could be could be a hundred who are still detained under those circumstances who are not part of al qaeda or the taliban  you i'm not sure this will be responsive to your question but almost all of the two hundred forty detainees who are as of january twentieth i have filed corpus petitions with united states district court and it is through the heaviest corpus process that there detain ability under the law of war is being tested subject to judicial review by independent article three judges that determination analytically as distinct from a secondary question which the word accused in your question brings to mind which is how many have then also been possibly subjected to prosecution for not just being an unprivileged belligerent or an enemy combatant or whatever the term is sort of under the law of war but actually being accused of crimes or war crimes that's a smaller subset but the larger population are having their detention tested through corpus and i administration may still have the power is it with the pain that individual on the loss of the war i mean if they have been tried and been found that they were not guilty this is something that i myself could not understand and maybe the american people don't understand either maybe you can elaborate a little bit on that my view as a lawyer as lawyer for the defense department and the view of others that as a matter of legal authority not as a matter of circumstance policy or judgment but as a matter of legal authority if there is proper law of war detention authority for a particular individual that is true irrespective of what happens in any eventual prosecution in your question if the individual is acquitted that would be irrelevant to law of war detention authority whether or not we ever actually did that as a matter of policy or judgment is to me an entirely different question depending upon the circumstances what happens in that particular case and so forth i would point out that one of the three cases one of three convictions and i am by a number of years the oldest member of this committee i remember when franklin delano roosevelt defeated herbert hoover i lived through the great depression and you can't know how deeply grateful i am that this really poor depression era kid could have the opportunity to work and achieve and one day serve in this congress i say that because i want you to understand the context in which i make these statements and ask my questions are there or not or could there not be a world court in which tried i would not rule out the possibility others have called for a national security form of court i can imagine circumstances under which it plausible and appropriate to prosecute suspected terrorists in an international type forum we're trying to deal with the  current population right now and i understand we've got a we've got a bill that came out of the senate that we think is pretty good bill for a lot of reasons there are areas where we  between national security international and the perceptions of millions around the world about who we are and what we do when i mention military tribunals to my constituents they have the inherent initial response that i had when i first heard the word we were going to do this and that is a banana republic a trial that midnight and execution at dawn when you are children i'm your mother told you what my mother told me and that is that you shouldn't borrow i regret that we are where we are today facing the necessity of deciding how we try these criminals and either one of these two chords i would have wished that we could have avoided that obviously as a very descent was a difficult matter and we wouldn't be here today i wish we could have avoided this by deciding from the very beginning that they should have been tried in international court and  do we run the risk incurring considerable ill will around the world thank you very much for your attention to this and i hope that you can help guide us through this with the least damage thank you very much frankly to hear some members of congress telling you i think that every one of our service members have been turned into police officers who are first forced to worry about reading a terrorist his rights rather than completing his mission and keeping their dollar soldiers safe we all agree we all agree that the job of our nation's military is to fight and win wars not mark horstman or evidence collection and i'm glad that you're here suspected terrorists captured on the battlefield and immediately read the miranda warnings and do these warnings ever occur on the actual battlefield itself that i would appreciate it congressman thank you for that question and thank you also for your service of the country th congress briefed some really terrific jag officers in response to that question and concerned i sent a letter to the chairman addressing this  issue and i would read the first two paragraphs of the letter i write to correct a serious misimpression that has arisen and risen recent weeks that the united states military may be providing miranda warnings to terrorist suspects in afghanistan this is completely inaccurate the record should be clear the essential mission of our nation's military in times of armed conflict is to capture or engage the enemy it is not evidence collection or law enforcement members of the u s military do not provide miranda warnings to those they capture now let me go on to say that in instances where the government chooses to go down the road of prosecution of a suspected terrorist that too is a member of a mission to enhance national security to bring to justice suspected terrorists that is part of ensuring that security information and that letter was entered into the record during the recent record on the resolution inquiry that we took up as past weekend if until the end of the vote and gentlemen we shall return thank you evidence trail right there within the confines i'm curious why we haven't pursued any charges against against detainees are they actually committed what we think maybe i'm wrong maybe it's all been patted down there but that's not the impression i've by detainees while on guantanamo during their time and the only my only point is if you've got somebody you're trying to lock up somewhere or deal with in a definitive way and you don't have evidence for what exactly what they did  charges charges in the world with the administration put him in a position to risk dismissing the charges against the nine eleven defense even though the case has been suspended those particular individuals and i hesitate commenting on a particular case but it is the fact that those particular individuals remain detainees at guantanamo and irrespective of what happens in the case they are subject to law of war detention mr johnson won the world are we having these proceedings if we're going to retain them whether we have the proceedings or not depending on and it doesn't matter what the outcome of the proceedings are because in certain context people who violate the laws of war or violate federal criminal laws should be brought to justice is it your opinion your personal opinion that  to testifying as an administration witness i know some of the military officials can testify in their personal capacity and give their personal opinion but i will say that i think the nine eleven attacks are both violations of the law of are sort of three quick points that may help on this maybe not but the first is that the protocol considers efficiency which would embrace i think prior litigation in guiding form choice the second is that i think the president has made clear we're not going to go forward the military commissions act proceeding until the necessary reforms have been made to the military commission system in any event and pending legislation i think today has a sort of conforming c circuit united states court of appeals for the d c circuit and then  questions are going to be all over the place so if you bear with me i just want to touch on a few things that the chairman spoke of when the war is over and releasing detainees and how mr chris you would define the end of the war and how difficult that is because it's a war on terror and that type of issue obviously one of the things that i might ask you is when we're talking about the enemy that we have detained where where is this enemy from what country do they fight for what uniform do they wear what flag do they fight under the answer to all those questions is obviously right so those things are all violations of the law of war correct or the geneva conventions as we understand them and they would not be entitled to the privileged legends of prisoners of war under the geneva convention you're absolutely right about but my but my question goes more towards the what then surely you do with them once there is if if we can agree that there is something that would be the end of  as the chairman said that we just they would just be released is that correct in when dealing with mohammed or individuals that we have that have violated the geneva conventions and that no and it's interesting in the prior discussions we were having we talked about the distinction between detaining someone under the law of war for the duration of the hostilities and there is some question about exactly when these hostilities will cease but separate from that is an ability to convict someone for violations of the law of war for violations of the criminal code and to hold them for the duration of their sentence which is very male white might go quite beyond the end of hostilities and that will be a fixed sentence imposed by a court as part of a prosecution and i just wanted to throw that out there and add that element to that conversation you know one of the things that concerns me and i know i don't have much time but one of the things that concerns me is when we're talking about the role of the commander in chief and we're talking about the lawfulness under the laws of war the jima convention of prisoner of war status day which i also visited you know there's a lot there's a lot left to interpretation for the commander in chief you talk about you talked about just just a few minutes ago one of the hot button issues obviously are statements that are listed from from cruel or degrading you know punishment or interrogation up until the president started defining certain things i mean that was arguable i mean some for some people was more obvious than others but if there was room for argument my question to you is as we move forward the judge advocates that were here and some of the questions quite frankly that you been asked answer involve a lot of speculation and you haven't been able to answer and the judge advocates haven't been able to answer him i think that it's imperative that we do as much as we can to be as clear and and detailed as possible so moving forward we're not caught in sort of a cloud of war when it comes to how these people are prosecuted and that's what we're all trying to do here today but one of the things that's still kind of out there for me is when we're dealing with future detainees or future prisoners or whatever you want to call them specifically with regard to hey vs extra constitutional rights we talk about detainees in afghanistan and detainees and wherever we're going to go in the future with regard to terror what what do you specifically for see us doing to to make sure that we're as locked in as possible when we pick up somebody this is kind of an extension of mr conway's question if we pick up somebody a bad guy on the battlefield in afghanistan is clearly a terrorist or al qaeda or somebody like that what rules of criminal procedure are we going to be able to follow for that person with regard to hey b s for the future and are we going to be able to address that with what we're doing here today congressman let me try to answer  this question this way which is part of the question you asked earlier mr kris there are no there are no easy neat clean answers about when it's going to be over and how you treat people in the future if the so called war and which is one of the reasons why you seek to bring people to justice so that you can get out of that process a long prison sentence in terms for making efforts to try to resolve what is clearly one of the most complex legal issues we've perhaps ever faced and i appreciate you trying to find some reasonable compromise understanding of the differences in the battlefield versus the legal arena once again my chairman is a country lawyer style has hit on the issue directly the way i see the issue is we have detained individuals on  relatively minimal standard under laws of war and we're justified according to supreme court in continuing custody so long as the conflict continues we are struggling with those individuals because although we have what i would articulate as perhaps an articulable suspicion in terms of offenses and their involvement we don't have enough at least appears to me to be sending these individuals to the various forums because if we did we would have done so already so the question becomes once the conflict is over what do we do and the asking a bit more directly than the chairman did do you believe based on the supreme court case and  contain within it that following the removal of troops from iraq are we going to be able to justify continued detention of individuals that were detained in the conflict in iraq after the combat troops leave and if not what do we do then congressman iraq and afghanistan are obviously different situations as we wind down our presence in iraq pursuant to the security agreement that does not mean that the conflict against al qaeda and the taliban is going to be over we were very much in afghanistan dealing with the threat in afghanistan right now and so i would expect that what we're doing will continue there and part of the mission of the u s military is capture and detention let's go down a few more to let's go down a few years and let's assume that we withdraw from afghanistan we have these individuals that we believe are very dangerous people although again not sufficient proof in our view your view to bring them before form what do we do then and here's here's what i'm getting at i know we are looking at these cases to determine what forms to send them my question is similar to when i was a prosecutor is one thing what efforts are we making in reviewing them to acquire additional evidence so that we can afford them to these forms and so that we can hold them beyond the end of the conflict whether in iraq or afghanistan that that effort that collection effort is definitely ongoing and what does it consist of through intelligence and military resources and avenues we constantly do that if for no other reason than to find out not just how authority to keep those individuals but in my view as the military lawyer here so that we can gain information about people we haven't yet captured so we're constantly doing if i have a little more time with regard to the of in tearing us issue are you suggesting that in the battlefield if there was a  door knocked down and soldiers go in and take a statement at gunpoint are you suggesting that the voluntariness standard even under those circumstances should be used as opposed to rely billeted standard and if so why what we're suggesting is a voluntary standard that takes account of that circumstance so in other words in a civilian context cops and robbers try to discourage the police from taking statements in those circumstances but that's the mission of the military the military should do that and so what we're asking for in urging is a voluntary and a standard that takes account of that circumstance and wouldn't necessarily preclude that and question to you is do you think it's realistic that our courts are going to find that a individual giving a statement under a voluntary nest standard is going to be admissible you've touched on the very reason why i think we need to get it right why we need to codify a standard to take account of that circumstance so the judges don't misinterpret the voluntary why not have a different standard voluntariness when you're talking about someone who's detained in custody in a confined setting and have a reliability standard that applies when you're dealing with issues on the battlefield that is actually very close to what i think we're proposing ok thank you i thank the gentleman  mr hunter please thank you mr chairman gentlemen thanks for being here this is a little bit difficult for me to be sitting here with you because frankly the rules of engagement and what the military lawyers do on the ground for guys like me is make life hell frankly you make things very difficult i would say that some of the deal the law that exists with rules of engagement how we treat detainees actually makes us kill more people because we don't want to capture and i've seen it happen often guys come and get detained couldn't hold onto it for one reason or another according to our jags so we're releasing them we kill them and  they make it very difficult in afghanistan we had a jag with us twenty four seven twenty four seventh's watching the bad guys and we saw bad guys doing bad things and jack would say that we could not do anything for one reason or another detain them and you had a three star general reliant on a zero three or no four to give them a decision and the general could override them and strike but if they did then it would have been against what that jack said and obviously th generals career would have been in jeopardy but anyway we're going to the questions here and i'm not an attorney so on try to speak plainly to me if you don't mind and that a bit of a disadvantage with the nature of of these trials the way that they're going to be do you think that we're leaning towards holding the detainees in our military brigs as opposed to federal started i know in two thousand and seven under the bush administration they were looking at camp pendleton and and mary in my district in san diego to want to put detainees because i thought that that would be conducive to to try and them in the way that they're held they're so does that does that lead in to that to that process of thinking well congressman let me respectfully disagree with your characterization of you really can't disagree because i've been there three times and i've seen it and i think i've been there more than you have frankly if you want to argue with that that i don't think you know i have to have i have two really good jag sitting right behind me good one of them went to law school with the president the other one has won commendations and so forth for his time in iraq i'm not saying you're not good lawyers i'm sure you're very good lawyers and my point is that your jag lawyers are enablers they in power they do not prohibit i am the top lawyer of the department of defense i am here to work with the united states military to help them get the job done consistent with the rule of law i am not there to stand in the way and so i'd like to respectfully disagree with the characterization having said that i do want to address your other point i think that where we're headed is a system where you have both systems of justice available for the interest of national security to put away the bad guys in one form or another we need to have both court systems available for law of war violations for federal criminal offenses what we have right now is frankly a system that could be made better that in the eyes of at least some falls short and we have an opportunity to fix it for purposes of promoting national security and i hope this congress will take up that opportunity and let's move on because i don't know that answer my question i'm almost out of time too when you talk about cruel inhumane degrading treatment of detainees do you think we should afford our military the exact same things are going to change bootcamp are going to change their school because we humiliated and degraded our marines and soldiers and sailors and airmen all the time that's what i mean that's it's not fun sometimes being in the military clearly we don't get too much sleep sleep deprived don't always get food and we don't always get to eat three meals a day so we're giv detainees better treatment and i guess i got the nose jackson behind you got and then if you want to ranger school and if you want to be want to ranger school he's saying yes i mean he was humiliated and he was degraded so i'm going to make that same standard for detainees the same standard that we have to without a doubt congressman i will not disagree with you being in the military is hard it is difficult you don't always get three meals a day but this is please understand sir this is not about being nice to the bad guys it is about american values who we are as americans how we would want our people treated if they are captured there was a discussion of reciprocity a moment i'm out of time i think the reciprocity argument is absurd this is al qaeda this is evil incarnate and what america does is when wars and with we don't do it with bad law we do it like by killing the bad guys but thank you very much appreciate it and as i understand it you have five such recommendations and i will try to condense then the first is to prohibit the use of involuntary statements the second believe so except that i think mr chris can correct me i think that we in the administration are pretty satisfied with the current senate language on here i could be wrong about that but i think  would i would urge that we not think about a decision to detain a captured belligerent as an adjudication of guilt or innocence i think the comment that was made earlier was that that's not law enforcement it's not a law enforcement context when the united states military makes a determination that a belligerent on the battlefield that's not an adjudication of guilt that is a decision for reasons of national security and safety that that person needs to be detained so that they don't return to the fight that is very different from an adjudication of  guilt or innocence i would i would try to answer your question that military commissions in my judgment should not be judged in any way second perception that i work with every day who are committed to that process military facility in the united states so that's one distinction with respect to the side of it i think if i have the numbers right we have about more than two hundred terrorism related people already term law of war detention that is something i think the president has made clear he wants very much to work with congress on and if we need it i think it might be something that we would consider  and we're determined to do that so we will spend new dollars and answer i can tell you that for high value individuals who we determine we must detain we had been killed at that point and and also i understand i'm talking about the way that they have to do it they have to play around the law as well they have to try to make things work for us on the ground that that's made here by d o d and it makes it difficult for everybody on the ground trying to make things work but the jag corps itself i think is good but it's the law here that they have to deal with my question is  if we threaten or or a verbal abuse during and help me out here i'm not even leading to any certain line of questioning for any any particular answer if we bus down a door and we threaten somebody you know shove a rifle in in their face kick them down and yell out and threaten them verbally to get an answer out of them and they give that answer what does that count  in this whole scheme of things it depends on the circumstances what we're advocating is a voluntary on a standard that takes account of that battlefield reality the other point i'd make is that we can't let the tail wag the dog here we can't let the law enforcement mission which is an important one for national security overcome the essential mission of the united states military and that is part of that letter i read earlier the military's mission is to capture an enemy that's what they do and i don't want to do it any way different at the point of capture than they do it now just to make mr chris happy we don't think the embassy is going to change anything on the ground it'll be the same as it is now i don't believe when it comes to the actual point of engagement i don't believe that the reforms in the that are in the senate bill or that the administration is proposing would or should alter how the military does its job point of capture that is correct thank you very much  chairman as quickly as i can go and going off was mr o'connor was just saying when you talk about voluntary versus reliability and it seemed that admiral macdonald was sort of saying that views on this issue it's one he and i have discussed extensively we think that there should be a bond hearing us requirement versus just being a factor because we think that military commissions judges courts what have you are going to try to impose that anyway as we have more and more of these prosecutions so as a requirement we ought to get it right and make sure that it accounts for all the ten days that i think is sufficiently flexible to take account of the battlefield and when you look at it it's really not that far from what at mcdonald's ok and i'm assuming that because we're sort of going down unchartered territory here because we're fighting a non conventional type enemy an unconventional war we're sort of setting new rules for what mr hunter and his scenario has assuming we move forward here and let's just speculate country x true country north korea china whoever and we go back to a conventional war do these rules apply to future conflicts or do they just apply to the conflict that we're in now with kind of an enemy that is undetermined nationally or under a common flag are we setting new rules of engagement new laws of war for our conflicts moving forward or if we fight a conventional war do we go back to the old system that the military commissions act and the senate bill on by by their terms of two unlawful enemy combatants or unprivileged and i mean belligerence other words people who violate the laws of war that the bill does not redefine the laws of war does not read a guide substantively the laws of war and as the chairman noted what we're advocating is a sunset provision  deal with change circumstance one last thing and this goes with mr conway again you were talking about national security the stigma of guantanamo bay i asked mr holder on the judiciary committee if the stigma if there's a stigma with guantanamo bay is that still hold after a trial evidence comes out this guy's a really bad guy he needs to be put away for the rest of his life everybody agrees that why can't turn from a detention center to an actual prison and mr holder at that time said that the you know the stigma still there would i think agree with you that there may be national security is a bumper sticker for outside of what i'm saying is doesn't it take leadership at the highest level from you for mr holder from the president to say to the world in the global community this stigma is wrong we're holding these people in a first class facility with people that are doing things the best way possible giving them the utmost care with regard to their culture and everything else and not to say that supermax can't hold them we know that you know they sure they're more they capable but why do we have to react to what a bumper sticker for al qaeda might say rather than take leadership and say this is the reality this is the new statesman this is the new reality why can't we do that why didn't we tried that second i think the leadership to be exerted here is to respond to the call of people from both parties both of the last two presidents this one and the last one and say let's get it done ok everyone wants to close guantanamo or at least a lot of people want to close guantanamo let's get it done let's make iraq receive work and impose a deadline on doing so that's what i think the leadership should be doing i understand what you're saying but again as so many of my colleagues having been there having seen the facility having been told how much money we spent there and quite frankly still spending is still building down there which is insane but anyway in this day and age i think that that's you know part of should you have additional materials you would like to submit to the committee feel free to do so but of the very helpful if you could do it within ten days of today plus the  recommendations that i referred to few moments ago mr mckinnon thank you very much mr chairman and thank you very much for letting us continue i know this is a very important issue to all of us and i know  chairman is going to be going to want on a model and we'll get a firsthand view of what's going on down there i referred in my opening statement that my opinion changed after having had the opportunity to visit all i had seen from guantanamo was the pictures that we all saw two years ago that that caused apparently the problem that caused this perception that has caused all these these problems and i wrong name and mr rooney because frankly the comments you made mr johnson about how things are different down there and what the the job that is being done down there now there was an ad in the one of our papers here on the capitol hill capitol a couple of days ago an ad run by prison guards from our federal prisons asking for more help more guards and i met with federal prison guards a few months ago and they told me that at times one guard is in a yard with seven hundred seven hundred fifty prisoners and they could kill me at any time i guarantee if he were in the yard with these prisoners in guantanamo wouldn't have to be seven hundred he would have been dead these are guys that have one purpose in life and i may be  generalizing there but i think that most people that have had the opportunity to interrelate with them would have that same conclusion i think you indicated that in your testimony that there are very dangerous individuals we have down there a thousand guards for these little over two hundred prisoners and they're very careful and they still have problems they go on hunger strike there's a few lead years that they said they separated but they still get the word back to the other prisoners want to go on a hunger strike want to commit suicide want to kill a guard these kind of things and they carry out those those orders  as as much security as there is there is a risk there i don't think we have to worry about terrorist attacks from the outside which i think we would have to worry about anywhere that we had them in the states and it just  seems to me that if we could do what mr rooney suggested come to a new reality have the leadership really say look you know in this time of economy this time of we're still war we've got real financial problems in the country i think that that facility the courthouse alone cost twelve million dollars you said they could move it somewhere and i think you're probably referring to that inside the courtroom the desks and those kind of things the the wiring the ability to do the translating the things that mr forbes talked about i think would cost  amount of money to duplicate anywhere here in the country i think there would be political opposition on a grand order on the city council i know what it takes to get a building permit to build a building  there would be people that would be fighting this thing the delays would be years not weeks or months before a facility could be built to handle them to do this situation the prosecutor told us that if he could be allowed to move forward he could wrap this up in three years maybe optimistic say four years i don't know you have a better feel for that but to to think that we could duplicate what  we they're somewhere here in the country without the opposition that would come from without the all of the problems that would be associated with this kind of a move let alone the security problems that are involved i just wish we could really step back and take a real look at all of these circumstances before we move forward in a judge and maybe that's why the president asked for six months or the commission asked for six months more to look at this i think reality really needs to be brought brought to bear here i thank you again for what you're doing i think you did a tremendous job of telling your side of the story and carrying out what what you what your mission is