of subcommittee of the constitution civil rights and civil liberties will come to order i wouldn't i will now recognize myself for a five minute opening statement today the subcommittee examines the military commission system and more importantly how we as a nation can work together productive department of defense general counsel john j j johnson that we can hold indefinitely even people acquitted in a military tribunal is what is the purpose of the military tribunal in the first place indeed what is the purpose of any court hearing if the judge can say you were acquitted and remanded for indefinite detention what's the purpose of a trial that has over the past seven years approximately eight hundred individuals have been detained at guantanamo bay cuba with some five hundred already having been released before president obama took office in january in those seven years only three detainees were convicted of terrorism offenses by military trial commission approximately two hundred forty individuals remain in guantanamo most of these men have been held for at least four years some have been detained for more than six years all without being charged or tried to convicted of any crime a blot on american justice by any standard in addition to guantanamo is also detained individuals in other parts of the world including afghanistan some of these cases are fairly straightforward some are not but for each of these cases we need to have a means of determining whether the individual is combatant lawful or otherwise whether they are guilty of a crime and whether they are a threat to the united states we must decide how to deal with these individuals in a matter that ensures that our nation is protected from those who would do us harm and that is consistent with our laws our treaty obligations and our values this is the united states of america and we have traditions and beliefs worth fighting for and worth preserving the problem will not go away simply because we close guantanamo we are still fighting in afghanistan and iraq we are still battling terrorists around the world we will continue to have to intercept and detain individuals who have attackers or with threaten us or who we believe perhaps mistakenly to do so we need to be sure that however we handle these cases we do not conduct kangaroo courts remember what it is we are trying to do here we need to sort out who among these detainees are truly dangerous truly done something which they must be detained and who is not these detainees are accused terrorists while the previous administration was fine to remain minding people to say nice were the worst of the worst the bush administration in fact release vast majority of them approximately five hundred in all presumably they did not believe they were releasing the worst of the worst the people whom we have detained because they were turned over to us by someone with a grudge or by someone who wanted to collect the bounty that was in fact committed no offense against us do not belong in detention we have an obligation to determine who should and should not be in detention and to afford very trials to those we believe have committed crimes and to release all others this is especially important if our government plans to seek prison sentences or to execute those convicted this debate has been dominated by a great deal of fear mongering that is no way to deal with a problem this magnitude much as some people would like to drop these detainees down to hold forget about them that is simply not an option legally or  morally it is also not necessary we are not the first country in history to have to deal with potentially dangerous people indeed this is not the first time this country has had to deal with potentially dangerous people i can assure my colleagues are terrified that some of these detainees might be brought to the u s that we can handle it we've got a few such guest in my district in new york and secure facilities and we know how to deal with them people are not panicking in the streets and no one has been harmed we would never tolerate this sort of detention policy from any other nation especially directed against our citizens and we should not accept it in ours i do not want to underestimate the enormity of the challenge both from a security standpoint and a legal one some of these people are extremely dangerous and some of them have done some truly terrible things we need to be sure that we are protected from harm it is also true that the bush administration's rampant lawlessness has erected legal obstacles to pursuing some of the cases that need to be prosecuted the prime example the use of torture as military prosecutors the prosecutors have told us may have made some prosecutions impossible and all but the most trials this is an unnecessary obstacle but a real one we cannot ignore it we have to deal honestly with it i look forward to the testimony of testimony of our witnesses today and i hope that you will be able to provide some guidance as we seek a legal regime to deal with our problems going forward thank you and i yield back the balance of my time i would now recognize our distinguished ranking minority member the gentleman from wisconsin mr sensenbrenner for his opening statement thank you very much m chairman between one thousand nine hundred three and two thousand and one this country took the approach of prosecuting terrorists in courtrooms as criminal defendants rather than fighting them on the battlefield as foreign enemies that approach was a disaster as during those years less than three dozen terrorists were neutralized and three thousand innocent americans and people who were in this country as guests were killed during the nine eleven attacks today it appears the obama administrat increasingly retreating to this failed approach the justice department has already struck a sweetheart deal with the first enemy combatant to be tried on u s soil that terrorists maariv as a longtime member of  qaeda plotting attacks with cyanide gas at u s dams waterways and tunnels but he only stands most of pulpy fifteen years in jail under the plea agreement reached by the current administration the attorney general has also announced the prosecution of another known terrorist named guy lani who served al qaeda as a document forger an explosive trainer at a terrorist camp and a bodyguard for osama bin laden until he was captured by the military in two thousand and four but he will only be prosecuted for his involvement in the separate bombing that occurred in the one nine hundred ninety s his prosecution literally assumes that nine eleven never happened that is apparently just a pro you things to come as described in the los angeles times the f b i and justice department plan to significantly expand their role in global counterterrorism operations part of the u s policy shift that will replace  dominated system of clandestine detentions interrogation with the one built around prosecutions this new approach apparently reportedly entails reading more and more terrorist miranda rights including the right to remain silent that will deny us vital information to thwart future attacks for example a wall street journal recently reported that the administration's office of legal counsel concluded detainees tried by military commission should be given constitutional presence of detainees in the us even if they are just detained here for trial will lead to their being granted greater constitutional rights that admission came in the form of a brief submitted to the supreme court by soli general elena kagan who opposed a chorus of thirty to order foreign terrorists released in this country in her brief she repeatedly recognized the critter cool distinction the supreme court has drawn between an alien who is affected and entry into the united states and one who has never read or indeed solicitor general kagan karsh in the supreme court not to blur the previously clear distinction between aliens outside the united states and  this country or add its borders this basic distinction she continued serves as the praying work out of which your immigration laws are scrutinized and repeatedly has been recognized as significant not just under the constitution but also as a matter of statutory and treaty law all this is happening because the president made ill informed decision to close the guantanamo bay detention facility within a year soon after he made the mistake of signing that order the president's own defense department made an independent assessment of the conditions at guantanamo bay and found no such evidence of alleged abuse his own attorney general upon returning from his own trip to guantanamo the facilities there are good ones in stark contrast to the fine facility at guantanamo bay is the nature of the detainees at house these detainees include out quite a financial specialist organizational  experts makers and recruiters as it's been reported camp officials have had to adapt to a detainees population that remains violent there are up to ten assaults a week on guards some throw your honor feces when guards deliver food through a cell door try to pull their arms in and break them over a year ago judge royce lamberth the chief judge of the u s district court for the district of columbia issued an unprecedented statement imploring guidance from congress on these difficult subjects in the form of legislation that you'd come sooner rather than later but the democratic majority is not acting in the meantime republicans myself included  combatant act which would prevent federal courts from ordering the government to release known terrorists into the united states republicans have also introduced to keep terrorists out of america act which requires the governor and state legislature and congress needs to act now you'll back the balance of my time i thank the gentleman and i recognize that five minutes a distinguished ranking member of the full committee mr smith of  texas the chairman of the full committee having waived the statement thank you mr chairman we are here today because the president made a rash decision after only one day in office to close the guantanamo bay terrorist detention facility within one year just two weeks ago this committee voted not to require the administration to produce documents about its policy of giving miranda warnings including the right to remain silent to terrorist detained in afghanistan the american people still this information now president obama wants to give known terrorists at least some of the constitutional rights of citizens on trial in the us once terrorists are given additional constitutional rights such as the right to remain silent of course they do just that the result is no interrogations no information and possibly more attacks just ask nine eleven mastermind khalid shaikh mohammed when he was captured in two thousand and three he was not cooperative corner president clinton's cia director george tenet he said i'll talk to you guys after i get to new york and see my lawyer but he wasn't ready any miranda rights and his interrogation went forward whether he wanted to or not as a result tenet said the information we obtained from him and helped tenet wrote in his memoirs i believe none of the successes would have happened if we had had to treat this terrorist like a white collar criminal read him his miranda rights and get him a lawyer who surely would have insisted that his client simply shut up and quote the wall street journal article pointed out that quote military prosecutors have said involuntary statements comprise the lion's share of their evidence against dozens of guantanamo prisoners who could be tried in court the justice department says there has been no change in overall policy but several of the individuals responsible for conducting the interrogations of detainees told congressman mike rogers that a change of policy is exactly what has occurred these reports the detainees are increasingly being told of a right to remain silent is disturbing not only for its policy implications but rights to be treated like a shoplifter down the block of course not in quote further as thomas joslin one of today's witnesses has pointed out since only the most dangerous detainees remain in guantanamo there is a clear danger that those released will return to terrorism according to reuters news one out of every seven terrorism suspects formerly held at the u s detention site at guantanamo bay are confirmed or suspected of having returned to terrorism a total of seventy four has more government to release known terrorist into the united states and protect sensitive intelligence on terrorists from being disclosed in court to prevent our foreign enemies from being able to evade detection and conceal future plots  other members have also introduced h r twenty two ninety four the keep terrorists out of america act which requires the president to notify congress sixty days before a transfer or release of a detainee occurs and to certify that such a transfer or brief i think that the decision to close is the right decision and i think for multiple reasons i think when one survey the opinion of the rest of  the world we can't quantify the loss in terms of collaboration with the united states in terms of dealing with terrorism and dealing with terrorists and there's a whole array of consequences that have been caused by the symbol of guantanamo one could visit  familiar with prison they look great when they're all spiffed up but that's not really what the issue is and by the way my friends on the other side are aware of the fact that we have like it would be good to maybe kick the tires as the as the phrase goes but i think the real issue here is do we really believe in due process do we believe in the search for the truth why do we want to take political advantage  of acts that have been perpetrated upon this country due process is a concept that is in my judgment fundamental to a viable democracy and due process when you strip all of the legal lease and the legal definitions is nothing more than a search for the truth that's what it's about several hearings on the so called combatant status review tribunals and it was the military that stood up and said they were a sham so if that's what constitutes due process and that's what constitutes a conclusion that we can reach as to an individual that is a known terrorist you know that just that i would suggest has failed the american people and is failed us in terms of dealing with terrorism what happened to those five hundred last i heard my friend from texas talk about how seventy one ever friend jim sensenbrenner said that the war against terror and the court was lost and cost three thousand american lives i had to take some time he didn't do any such thing at all and and then my dear friend the ranking member from texas lamar smith  began his excellent comments which i always listen to carefully with the assertion that president obama made a rash decision to close guantanamo the first day that he was in office but candidate obama campaigned on this issue for more than a year you may be interested to know that the united states cannot go it alone in the world and must respect the views of allies he went on to say our great power does not mean that we can do whatever we want whenever we want and so on march twenty seventh two thousand and eight both candidates asserted that should be cause and i thank you for your generous  i would now like to introduce our first witness i represented adam schiff represents the twenty ninth district of california and is a member of this committee also serves on the appropriations committee and the permanent select committee on intelligence prior to serving in the house of representatives congressman schiff completed a four y term state senator to california twenty first state senate district chairing the senate judiciary committee the senate select committee on juvenile justice and the joint committee on the arts before serving the california legislature i was in the ship was with the u s attorney's office in los angeles for six years most notably prosecuting the first f b i agent ever to be indicted for espionage is a graduate of stanford university and harvard law school as you know you written state will be made part of the record in its entirety i would ask you now to summarize your adopt a framework for detention and prosecution of unlawful combatants that could pass constitutional muster during the years that immediately followed the establishment of guantanamo then majority in congress was not willing to confront this difficult issue and was comfortable delegating these hard decisions to the executive branch and eventually the courts i want to commend the chairman the subcommittee the full committee chairman for their leadership in convening this hearing today earlier this year the president took certain steps of indicating that the detention facility a good time of day will be closed within a year the poorly thought out prison and the torture that took place there have called into question american adherence to the rule of law and discouraged our allies from cooperating with us apart from  guantanamo however a number of difficult questions still remain any post guantanamo system to detain unlawful combatants must meet our national security needs and also provide adequate due process to minimize the likelihood of error congress must be involved in the formulation of this new system and changes should not be made solely by executive order when a suspected terrorist is captured on a foreign battlefield except the laws of war allow us to hold an unlawful or unprivileged combatant for the duration of the war and to prosecute them for crimes determinations have to be made whether the person is an unlawful combatant and whether the person has committed criminal offenses the question confronting us now is who should make these decisions and how the bush administration established tribunals to determine whether someone act one time a wasn't on lawful combatants and military commissions to handle any prosecutions the current administration has indicated their intention to continue using the military commissions after making a number of changes to the rules notwithstanding the changes announced by the administration i believe the commission system has proved flawed and stew process so inadequate and discredited that in the case of the detainees at guantanamo it should be completely jumped some have called for the creation of a new national security court to try to cheney and others have advocated moving all detainees into the federal criminal courts i propose an alternative that i believe better balances the national security needs of the country with our adherence to the rule of law earlier this year i introduced h r thirteen fifteen the terrorist detainees procedures act of two thousand and nine legislation that would make use of the military courts martial to prosecute  unlawful combatants military courts martials have a long history of dispensing justice without compromising military operations cases are tried before military judges using a set of due process protections provided for under the uniform code  military courts martial are also well equipped to provide for the safeguarding of classified information and to deal with unavailable witnesses or involuntary statements in a manner that is fair and provides due process the military courts martial framework does not currently have a mechanism to make initial determination of whether someone is an unlawful combatant but this can be easily changed by congress my legislation would make such a change specifically it would create a new status review procedure for all detainees currently to determine whether each individual is properly designated as an unlawful combatant a panel of three military judges would be convened in the military courts martial to conduct the reviews this process which replaces the previous combatant status review tribunals would follow the same remade to determine whether individuals are in fact privileged combatants i believe this new review can take place and should take place before an independent fact finder and therefore should occur separate and apart from the current review of cases by the administration after the new status determination is made by legislation would require that any person determined to be an unlawful combatant to be either tried in court with a preference for the military courts martial transfer to a nato one detention facility or another country or held in accordance with the law of armed conflict until station of hostilities related to the initial detention for such time as they're no longer deemed a threat finally my legislation will require those determined not to be unlawful combatants and not suspected of violating any law be transferred to the person's country of citizenship place of capture or different country as long as are adequate assurances that they will not be the subject of torture or be released mr chairman the subcommittee to examine the courts martial framework as an option that can both restore confidence in our detention regime well ensuring our national security needs are met i thank you again sherman and i i thank you i want to ask status review tribunal and the legislation would be necessary to use the courts martial for that process now can be tried before military courts martial i think the answer is yes  business say to deal with the threshold question the bill that deals with racial question but it also sets out a menu of options including military courts martial including a particular cases the federal criminal courts including transfer to a native detention realty so the bill includes really the whole range of options but yes you're right in terms of if you had an adequate status determination can you bring some room for trial in military courts martial i think the answer is yes thank you nothing in the the geneva convention that precludes us from trying a unlawful unprivileged combatant they are subject to prosecution they're not a p o w and nothing in geneva the geneva convention and i'm aware of precludes a prosecution  any appropriate forum and my second question is do you disagree with the obama administration that does not want the military commissions act repealed but they want to amend it by simply tweaking some of the eviden y rules that govern proceedings before military commissions depending on how soon substantial the tweaks are you could make military commissions identical with military courts martial if you the m j for example some of the rules that they are proposing move the military commissions in the direction of the due process you find a military courts martial they don't go the distance and because i think in the case of one tom the military commission established by the bush administration has been disowned discredited i think that we're better off moving to a different venue but but to answer your question depending on how far they're willing to go in terms of the rules if they make the military commissions look like the military courts martial that would come close to satisfy the concerns that i have it seems to me from what you've just said is that you want to give those who are defendants before or whatever procedures utilized more rights cases they're going to bring people before military commissions in other cases they can bring people before federal district courts in the cases where they bring people before federal district courts that would be a much greater level to process than what i'm proposing in the military question marshall ministration had the same choice of whether to bring detainees before a military commission or before a federal district court haven't they did the bush administration have that choice yes they did have that choice and what they chose to do with that choice is largely bring people for military commissions that were so flawed that none of the convictions were upheld a few could actually get through the process and i don't think any successfully were prosecuted by the military commissions so you have to look at what the bush administration did is a pretty abject failure in terms of bringing these people to justice i thank the gentleman for recognizing me i'm not sure that what my distinguish general for the commonwealth of pennsylvania currently assigned to the erie regional bureau of consumer protection you see this be a in philosophy as j d from the university of california i won't read as long as the decorations except to note that he was awarded the bronze star and the iraq campaign medal deborah proceeding is an associate research scholar in the law and public affairs program at the woodrow wilson school of public and international affairs at princeton university she received a ph d from harvard law school where she was rights first where she led the organization's efforts in research litigation and advocacy surrounding u s detention and interrogation operations she was recently appointed to the a b a s advisory committee and one national security efficient to her law degree proceed holes in a b from cornell university thomas joscelyn and i hope i got that correct thomas joscelyn is a senior fellow at the foundation for defense of democracies where he is also the executive director of the center for  fellows the all to be a in economics from the university of chicago courts and she teaches and consults with capital defense teams and national missile above was the founding director of the capital post conviction project and is a member the two thousand and three committee that formulated the a b a guidelines for the point in the performance of defense counsel in death penalty cases from two thousand and six two thousand and seven she was chair of the orleans parish public defenders board coordinating the reform and restoration of indigent defense and post his post katrina new orleans geologist j d from tulane university  akin to college i am pleased to welcome all of you each of you written statements have been made part of the record in its entirety i would ask you now summarize your testimony five minutes or less already explained about the lights i don't have to repeat that and before we begin it's customary for the committee to swear in its witnesses if you would please stand and raise your right hand to take the oath do you swear or affirm under penalty of perjury that the testimony about to give is true and correct to the best of your knowledge information a belief thank you let the record reflect that the witnesses answered in the affirmative you may be seated the last start by recognizing for five minutes our first witness lieutenant colonel van de and members of the subcommittee i do want to thank you all for inviting me to testify today on the issues surrounding the military commission system including what i consider to be the mistaken proposals to revise and revive the what i view as the irretrievably flawed military commissions at guantanamo bay before i begin i do want to mention very briefly that yesterday i watched the center armed services committee web cast and i noticed that even that everybody seemed to be dressed in a blue suits including senator levin who i met in baghdad in two thousand and six and for a very brief fleeting shining moment i thought i was going to witness the memorial service for the military commissions act after five seconds i realized i was not the case and that the committee took up its business and in a very professional manner in four and a half years on active duty since nine eleven two years over two years in combat zones but most important for personal purposes of this hearing i did serve on active duty as a prosecutor at the office of military commissions in guantanamo bay from may two thousand and seven through december two thousand and eight i went to once automower with this experience this combat experience of experience on active duty  firmly embedded in mind and i went there with a purpose and my purpose was to prosecute as many detainees as i possibly could prosecute them within the bounds of the law as aggressively as i could and to exact the punishment the most profound punishment that i could even the death penalty if warranted and so i believed the president when i went there and thought i was prosecuting the worst of the worst obviously when i got there i experienced a profound change of heart and mind when i realized through first hand observation and through my own actions that what i was seeing at one time a was not at all consistent with our core values of justice and due process of law i want to offer a single straightforward message the military system military commission system really is beyond repair there have been three trials in seven years when you add the military tribunals one of them was a politically in force a guilty plea one was involved detainees who boycotted his trial and the final one was probably the rebuke of a lifetime to the prosecutors at guantanamo the harm done case finally did come to trial and resulted in a sentence and effective sentence of five months on down has now been released he's back in yemen doing what i don't know from my own perspective though i was assigned to prosecute several cases at one point i was responsible for one third of all the prosecutions at guantanamo one in particular led to my my change of heart and my decision to ask to be relieved from the commissions unlike what some may have been told i didn't resign i asked to be reassigned back to afghanistan or iraq to finish out my term because one of the tenets of being a soldier soldiers don't quit and i was not going to quit but i was prosecuting somebody called mohammad jawad who remains in custody to this day i was presented and i see him running out of time so i'll be very very i was presented with what i thought was the entire evidence jawad case and as i searched through the evidence and the documents it became clear to me as would any experienced prosecutor that the file was not complete there are references documents that didn't exist there was a videotaped video recording of of a confession that should have been a in the file that was not i searched for this evidence and ultimately what i what i did find was evidence the jawad had been mistreated not only at the bog room theater in t days in violation of a direct order from the commander of joint task force guantanamo at the time and so it was a result of these realizations which came over time that turned me from what i call the true believer into somebody who felt truly deceived by the commissions and that is why i left and that is why i'm testifying here today mr chairman asking them to consent to the colonel be given two additional minutes without objection colonel be given two additional minutes to amplify is testimony thank you very much appreciate that i didn't come to this conclusion about mr jawad lightly in fact i was assisted by a very able defense counsel a major david frakt from the u s air force is a harvard law graduate he's a professor at a law school in california and it was really through his to college somebody was disinclined to believe his assertions and through his repeated requests for information that i began to on cover this mistreatment of mr de wine and in particular what i discovered was that the evidence against mr jawad consisted principally of two confessions one taken by the afghans when he was apprehended in december two thousand and two and then another one which was taken from him shortly within hours by u s forces after they received custody of mr wide for want of better way to put it in fact what developed was that the first confession the afghans held a gun to mr and told him they not only kill him but they tracked down and kill members of his family if he didn't confess the video video recording of the subsequent interrogation by the u interrogators disappeared i sent out a service wide inquiry it turned out to be turned up nowhere after i left the conditions my requests to be reassigned the military judge in th case suppressed those two confessions as having been the product of torture so today mr jawad is in custody six seven years after the fact with virtually no evidence against in his only hope for release is the grant of petition which is pending before the federal district court and i'll conclude with that except by saying that if i'm out of time i was going to say i have children of my own and mr jawad was a juvenile at the time i could not countenance in good conscience the treatment that mr jawad suffered at the hands of my fellow service members and i was appalled and i would ask that if if anything results from these hearings that steps be taken to make sure that juveniles and the excesses that have occurred already members sensenbrenner member of the subcommittee thank you for the opportunity to testify on this important subject i like countless others in the civilian and military legal and security communities have argued that the military commissions was created by the bush administration and codified by congress in the military commissions act of two thousand and six where a failure both as a matter of policy and law i strongly hold that view today yet while i continue doubt that the use of a new military commission system going forward is a wise or necessary course of policy and i explain why i believe that to be the case in greater detail in my written statement i have long said and continue to believe that it is possible to conduct a military commission proceedings for certain crimes in a way that comports with u s and international law ensuring that any commission to be employed meets those standards is now key responsibility of congress in this brief statement i would like to highlight some of the key changes that will be essential for congress to pursue that is to bring in the military commissions of two thousand and six in line with prevailing u s and international law based on a preliminary review i believe eleven bill currently circulating in the senate addresses some but not all of these concerns as my written testimony these deficits and part and the changes the president has ordered most important the absolute prohibition as evidence of statements that have been obtained from detainees using torture or cruel inhuman and degrading interrogation methods are a positive first step the bill now circulating in the senate authored by senator leavening also includes some important positive modifications as i understand the draft language in particular it wisely removes language in the m c a that prohibited defendants from so much as mentioning the geneva conventions and commission proceedings whether or not the geneva conventions provide a plaintiff in a civil case a cause of action to get into federal court the geneva conventions are at a minimum available as a rule of decision in cases before the federal courts such availability is mandated by the constitution declaring all treaties made to be part of the supreme law of the land and consistent with supreme court's application of the geneva conventions on versus rumsfeld the courts must and do have the opportunity already to apply all applicable law and decide in cases  controversies properly for them nonetheless these changes do not suffice to bring the contemplated commissions fully in line with u s and international law i highlight in this brief moment two particular concerns here although there are others first while the eleven bill appropriately excludes statements made under torture it still fails to ensure the commission rules adequately reflects the degree of voluntariness required by the us constitution for evidence to be admissible in criminal court u s criminal trials in civilian court as well as in courts martial have long prohibited the admission of involuntary statements at trial such statements have been recognized is inherently unreliable and the use of trial as been understood to create perverse incentives for detaining authorities to apply coersion beyond that authorized by law involuntary statements are constitutionally inadmissible and they have no place in trials under color of u s law second although eleven bill is not entirely clear in this respect provisions authorizing the review commission decisions by civilian courts must not circumscribe the jurisdiction of the federal review courts to exclude either questions of fact or issues of law particularly given the article one status of the commissions it is essential that article three judicial review review by the independent federal courts be as thorough as possible review should extend to questions of fact subject respect by the court to the extent commission findings have the power to persuade and the scope of legal review should include the constitution laws  states while correction of these and other provisions i outline in my written statement would go some distance toward correcting the remaining legal failings of the commission system they did not of themselves constitute an affirmative case for why prosecutions in the military commissions instead of in the article three courts is a wise course of action on the contrary i believe that case remains to be made neither do such changes and loss of life to justify renewed faith in a system that has as we've just heard proved today to be far worse in practice than one might imagine based only on its inadequate rules on paper as the president himself noted in his recent speech the national archives instead of serving as a tool to counterterrorism guantanamo became a symbol that helped al qaeda recruit terrorists to it cause indeed the existence of guantanamo likely created more terrorists around the world than it ever detained the military commissions have understandably been tarred with the same brush the burden is now on the united states to demonstrate that any commission proceedings going forward can and should be fairly viewed as more legitimate than those past for these and other reasons set forth in my written testimony i continue to believe that trial in article three courts must remain the rule for prosecuting violations of criminal law the use of any new commission system should remain exceptional and strictly limited in scope and duration to the narrow purpose that it is intended to serve as ever i'm grateful for the subcommittees efforts and for the opportunity to share my views on these issues i think the lady the gentleman i now recognize  cases so i'm grateful for the opportunity to present my views the military commission system is just one of the options it's currently considering for trying terror suspects in my opinion it will take some work to make the commissions function properly as has been document commission system as well but all of this is of secondary importance in my view the two most important reasons we detain terrorists or to prevent them from committing additional terrorist acts and again additional tell us about the terror network which thrives in the shadows however the us government decides to proceed with  cases it must make sure to protect the latter function in particular intelligence is our primary weapon this long war and without it we could quickly find ourselves blind or enemy designs once again all one has to do to understand the crucial value of this intelligence is look at the detainees population at guantanamo sixteen so called quote unquote high value detainees these terrorists are uniquely lethal and have been responsible for thousands of deaths around the world had they been left to their own devices they would have surely murdered thousands more to name just two of them their ranks include shaikh mohammed the chief planner of september eleventh knowledge of all kind of ongoing operations at the time of their capture we know that in the years following september eleventh two thousand when al qaeda plot attacks across the planet stretching from the continental u s to southeast asia numerous plots were disrupted because the so called high value terrorists were captured interrogated much of the history behind their interrogations remains to be told and there is of course an ongoing controversy of the manner in which they were questioned but we know for certain that the high value detainees gave up vital details on global operations including during interrogations and sessions of sessions in which they were subjected to harsh bodyguards experience fighters and numerous other operatives who serve the terror network in a variety of other functions these are just some of the types of other detainees held at guantanamo beyond the sixteen i value detainees there are good reasons to suspect that all of them knew important details about his operations of the time of their capture have the luxury many years later to debate how terus should be tried for their crimes i think there are many important debates and are going to be put forth in that regard but we must always remember that they did not stop on september eleventh america has avoided being struck again with this is not mean that they have stopped trying and their attacks continue around the globe whatever course we choose from here on out the judges must remain of paramount importan subcommittee thank you for inviting me to testify on behalf of the american civil liberties union regarding the legal and moral implications of this misguided effort to revive the military commissions congress should not reform the commission we do not need another system of justice new and inferior by its very novelty by design and by definition the trial going tonto detainees before a military commission cannot accomplish any of the goals of a legitimate justice system the stated purpose of some proponents of military commission trials is to provide a forum where convictions are more likely than in a federal court and to use evidence that would rightly be inadmissible in a federal court most particularly these proponents wish to use statements that were obtained by torture and mistreatment such trials will not be or look fair they will not be or look competent and they cannot produce reliable verdicts perhaps worst of all no judgments under the military commission will ever truly be final as director of the a c l u s john adams project i've attended and observed nearly all of the capital pretrial proceedings in the nine eleven conspiracy case act on top of i can say without hesitation that as bad as the military commissions appeared on paper they are far worse in practice and i'm not alone in that judgment in twenty years of defending its capital clients in the deep south i have not seen the blatant unfairness the wholesale result oriented injustices that i witnessed in these proceedings two areas in particular display this on fairness resources extreme disparity in resources when the government and the defense are the that includes routine requests that are or are dismissed or denied for ordinary resources almost no independent experts investigators or specialists have been granted in any of these cases far worse than the death penalty case with no capital coun provided and no attempt to comply with the a b a guidelines required by the supreme court in capital cases across the board a total failure of the commission process and providing even a semblance of the tools needed for an adequate defen access to counsel is another area your long delays in security clearances denial of the requests for secure phone calls between clients and their attorneys force hooding and sensory deprivation during transport to attorney client visits which discourage such meetings overclassification of the defendants accounts of their mistreatment refusal to assure prompt correspondence and provide a privileged team for declassification all combined to create nearly insurmountable barriers between clients and their lawyers let me speak to the appearance of an adequacy at the commission proceeding despite repeated requests and the fact that nine eleven was the most investigated crime in the history the united states few investigative documents have been provided  discovery to the defense fortifying the perception that no real trial was ever contemplated not one day not one hour has gone by without significant translation problems the commission is unable or unwilling to provide even minimally adequate translations in capital cases to non english speaking defendants some of whom act as their own lawyer an entire day was lost in these proceedings while the court and prosecutors debated with  cell extraction on one of the defendants who had been diagnosed as psychotic by guantanamo doctors such salix tractions and the force make it look as though mistreatment is still occurring and the day lost to debate was a direct result of the denial of adequate opportunity for defense lawyers to communicate with their client at the end of the day the military judge called the proceedings quote a learning experience i thought it shouldn't be a learning experience we shouldn't be making this up as we go along it's supposed to be a capital trial conducted by a country ruled by law as these cases belong in article three courts we have nothing to fear from our own courts no matter how many cosmetic are made the military commissions will always be a second rate court system set up for illegitimate purposes when verdict and perhaps death sentences are rendered by such a court they will be tainted forever they may well be reversed by article and when that happens it will not be the voices of the defendants of the defense lawyers decrying the cruel folly it will be the voices of the families of nine eleven the citizens of this country and our allies around the world who want this process to and  congressman delahunt ultimately with the truth emerging from a fair trial the military commissions cannot provide that answer your second question why would we try them at all if we could continue to detain some of them i think has two answers one is we can't continue to i suspect there's a small subset of people who we could lawfully continue to detain and the second answer to that is traditionally if armed conflict ends tomorrow fortune smiles honest we may want to end some of these people who actually committed war crimes murder of civilians torture  etc we want to hold them a lot longer than the duration of the war in afghanistan they should be sentenced to prison terms of ten twenty thirty years so that's that's why now i admit to you it's deeply disturbing to hear the notion that there can be continued detention even with trial but that is in fact i think under certain limited circumstances a correct statement of the law we'll get back to that also  in afghanistan is there a difference in the rights provided detainees in the constitutional rights depending on where the trial was held where they are detained the statement that i heard earlier which is that guantanamo detainees the trials were held here would be afforded substantially more due process protections than they would be afforded in guantanamo i think is incorrect i think that view of the applicability of the constitution doesn't survive a decision in which justice kennedy and a majority of the court recognize that constitutional rights extend to individuals even individuals held x territorially to the extent it would not be impracticable or anomalous to apply those rights or location of an individual does not except in the rare possibility situation is that because i think with respect to that trial rights that would apply for military commissions it makes little difference whether those trials are held in one time by the u s or under what basis i should i want to be clear in what i'm actually contending my view is if people can be tried either under ideally in the article three courts  or if lawfully constituted military commissions they should be tried period the authorization for the use of military force has been construed by the supreme court you know as informed by the laws of war to authorize th detention of people engaged in armed conflict in afghanistan in limited terms now it's unclear how much farther that decision by the supreme court the hamdi decision which came down in two thousand and four extend but the district court so far in the guantanamo litigation have broadly embraced a somewhat limited view that the administration has advanced more limited than what the administration has advanced that it is possible given the ongoing conflict in afghanistan and even broader although it remains to be seen that some of these people can lawfully be detained under the combined forty of the authorization for the use of military force passed in two thousand and one and the laws of war with me reclaiming my time and this would be the last question on that point that's for someone who's sick who is fighting there is there someone who is simply picked up or sold by recognized is recognized only if pursuant to their procedural protections and what proceeding is that well with respect to the guantanamo detainees they all now have a constitutional right to habeas corpus to review their status and administration seems to have sold out the desire to close guantanamo disperse those who have been detained in guantanamo to wherever let me say that i heard from the there wouldn't be any more rights given to people who were transferred from guantanamo to elsewhere or were tried before or some other type of procedure but that is in direct contradiction to the brief that solicitor general kagan filed with the supreme court i guess the concern that i have is that there has been a track record of people who have been what people are going to do he was no worse than anyone else being held at guantanamo bay officials i think the fact that  few foreign countries are wanting to resettle these folks is an indication that they have complained about guantanamo from a quote world perspective when the time comes for burden sharing and dealing with these folks and perhaps trying them other countries seem to have dived under the table no that's your problem americans i just look at what has happened them as high risk now what are we doing to countries that are friendlier territories that are friendly since bermuda is still a british colony and i guess the question that i would like to ask having said all of this is directed to you mr joslin as why does it make sense to release a person who has been described by american officials as members of a terrorist organization to another country when the position of the united states itself is that a person should not be allowed to travel the united states well with the leaders and particularly you're asking about their you know i've always said do not consider those guys to be called the worst the worst and i consider them to be the most dangerous guys who are at guantanamo however when you get into their files you get into the missions they made it their combatant status review tribunals and you board hearings a sizeable number of some sort of full accountability and full transparency on who these guys are i'd say it doesn't make sense just to double back to the taliban commanders search commander in helmand province that you mentioned congressman rezulin is a good example of a guy who downplayed his type of thing that happens with these detainees you know a lot of times when you hear people saying the detainees own denials as if that means that they are not terrorists or they're not a threat here's a good example of a guy who tried to downplay size the taliban in fact he was a taliban leader all along this was the guy intelligence official in the fox news piece said yes and just quickly you know a lot of the pressure actually is pretty interesting and probably not topic to get in full here today but a lot of pressure sometimes comes from former detainees who themselves are actually al qaeda video game for the x box three sixty in which detainees a game a would shoot their way out of the syllabi and kill american soldiers who they called quote unquote mercenaries but you know this type of pressure a lot of times comes from court orders that are very unsavory and comes from any i mean boggles the mind of a man who are willing to believe anything that appears in the press that these say and i think what mr joslin has said very clearly is that anybody who does that people based on anonymous sources i will point out that the united states circuit court of appeals for the district of columbia circuit in two thousand and eight said with regard to that we girls are with regard one of them at least quote it is undisputed that petitioner is not a member of  is never participated in any hostile action against the united states or its allies unquote this was in the case of par hard to the gates five thirty two thirty eight thirty four eight thirty at page thirty six two the question that i think that this hearing was was called to address is is what do you is what should our what should our policy what should we do going forward should we have military tribunals if we do should the military tribunals have this set of procedures that sort of procedures if we don't have military tribunals what should substitute and this is just with aside from saying there's a lot of bad people there which clearly there are in say a word or any of this i'd like to hear at some point what he thinks given the fact that we i'm not well versed in all the legal aspects of legal wrangling my perspective is always from intel intelligence first and defeating the enemy perspective i come from so you know what i try to highlight in my testimony is that from that perspective from that of an intelligence analysts who studies these matters and spent thousands of thousands of hours training guantanamo detainees there are frequently facts left off the table in any of the venues that are being considered for trying the suspects and what i would say is that whatever process we can move forward with and i'm my colleague any mccarthy has suggested that the foundation for defense of democracies which is a national security style court where intelligence is protected and there are clear rules and guidelines reasonable down by say that as a non lawyer we don't need a suggestion of a court fall you need to do is characterize people as known terrorists if you want to say that somebody is the worst of the worst if you want to say that somebody has been shown to be demonstrated  in this area in which you rely on intelligence quite a bit of your point of view as a matter of fact you may want to know that we have members on the judicia committee who are not lawyers who handle themselves quite well among a sea of lawyers and in the senate judiciary committee the same thing appl so you're not suggesting that your comments derive from the fact that maybe some of these folks up for trial who the courts the federal court oh do you have access to classified documents you know and that's the bottom line there too is i've always admitted that there is a certain line where there's sort of not information i can't reveal as an outsider but i would say that the decision that i was just referencing the information that i was getting and talking about was not classified it was valid on the unclassified files thank you then the citation the chairman that it made person who was before them but again i think that basically there were certain facts that you can see in the classified record which i think are important facts supporting facts by the time of the part decision you're refer to and which have been recognized as important facts you didn't make in the case i mean keep in mind the group that train these guys at tora bora publishes this shot of videos on the web and you can download them and see what this organization is i mean this is not   you question not only the courts but also the government lawyers trying the case because you can see into it that obviously something some things were hidden from the process in the court that should have been brought out about how potentially dangerous this person was is that you know basically i can't tell you confused by what information is coming to me but six after the failure of an executive attempt to create military commissions by reforming the one that isn't good enough that was created in two thousand and six all to take care of a problem that will not occur in the future this is not a prospective problem we are not taking statements under torture anymore we're not going to do that anymore trying to have cases where the trials are dependent upon evidence some of which was obtained under torture or cruel inhuman or degrading treatment a problem that's a problem that should not be solved by creating an entirely new set of judicial procedures which will have no problem of novelty and the problem of ultimate loss of finality that i talked about and that will produce the kind of show trial that we see a guantanamo so the solution has to be one case at a time in affords the judicial guarantees recognizes indispensable by civilized peoples that means no indefinite detention off the table it means no course that should be off the table taking a look practically one on one at the cases that remain in guantanamo where there are tainted pieces of evidence is i believe going to reduce down to a very small set the really problem cases and we don't know until we have trials that's what trials are for the looking at these cases from the point of view of real world litigators who look at real world courtrooms as colonel vandervelde and i and the other lawyers in these military commissions can tell you the cases one by one we take a i want to try to be very clear i do not believe indefinite detention is lawful under any law i do not believe that detention purely on the basis of some assessment of dangerous is lawful under any law i do not believe that coercion coerced testimony torture etc are lawful under any law what i do believe is for example that if there is somebody at guantanamo currently who was a commander of taliban forces in battle against the united states in two thousand and two and i take it that it may be there is some small number of people who fit for example description that person is in my view a classic prisoner of war as that term is defined conventions as contemplated i suspect even by congress in the authorization for military force it passed in two thousand and one in my view it is a reasonable and perhaps appropriate hope with my heart my fears are unfounded totally wrong however the proposals covered in this hearing require a great deal of risk they require us to make ourselves more vulnerable to terrorists bin sophisticated terrorist training in two thousand and two when he was finally apprehended in pakistan he was almost certainly on route to the united states to conduct attacks with who has been convicted  terrorist offenses but he is a notorious notorious as the alleged dirty bomber because he along with a lesser known muhammad studied the possibility of constructing a detonating drug addict one of life's losers if you've ever had any connection with him at all you would understand he wouldn't pose a threat to anybody the idea that he was going to america almost certainly to  conduct terrorist activities is not borne out by the facts i wish i could get into those because i can't because of national security considerations but the idea that mohammed is is one of the worst the worst that yeah well i don't have disputed and according to other reports u s justice department has decided to release yet another detainees from guantanamo many named a human need based on the toffees own freely given testimony he was certainly not an innocent swept up in the a charity that has been designated a terrorist organization i was discussed in brief in the nine one one commission report as an al qaeda front second but toffy admitted that he met with a malaysian microbiologist and authorized the purchase of medical equipment for this individual and he admitted that he had purchased cyanide but claims it was for dental fillings he admitted he stated various al qaeda and taliban guesthouses but says he didn't realize that they were facilities associated with mr bin laden at the time mr joslin would you like to to expand on any potential challenges you do you think the release of some of these terrorists represents to america well you know i think part of the problem here is that when here people talk about these guys here a lot of mystery war hearings here's what the government says it knows about them for me of those sources or other sources and the bottom line is each one of these cases that you've all outlined and each one the case i think in guantanamo as the obama is rightly doing it requires an individual judgment so i think that basically they're asked the judgment made on each one of these cases how it's handled how it's it what measure of due process is given to the detainees and how that how you proceed going forward so i don't want to provide a catch all for all the detainees i think that you don't want to say they're all the worse the worse you don't want to say that they're all going to be detained indefinitely i'm not here saying that one's saying is that basically like the terrorist you just outlined have been cleared for release there are troubling facts that count against them and there are substantial facts and that has to weigh in any decisions are made about them mr chairman it is a difficult situation that we face but the challenge is here the real problem here is that the assertion is that the bush administration got it all wrong and yet probably when it's all said and done the bomb and ministration will have to face in fact because of the challenging and thank you and since that time it was i think directed to me let me just make one comment here and that is that all these facts about these individual cases which may or may not be true i don't know are interesting but not in my opinion terribly relevant to this hearing be clear because i think it's important in terms of your testimony that your analysis is based on classified information did you at any time have access to basic outline of the details i called and yes ok tell me was they left tora bora afghanistan during the bombing campaign there in late two thousand and one and crossed the border into pakistan where i believe they were sold over to thousand dollars can you tell me how the pakistanis made an assessment as to whether as to whether they would have the pakistanis themselves made it no you can't do that responsible for the unrest if you are you familiar with the department of record human rights report on the treatment of the weakest by the chinese i am i d you aware of the fact that communist chinese intelligence agents were invited by the united states government during the bush administration to with five minutes thank you mr chairman i do appreciate the witnesses i know everybody's motivation here is out of an intention to preserve america that we hold their civil rights are so critical and i appreciate the protection of those we've had some problems with that in recent years but when it comes to those who have are part of a group who have declared war on or against it it changes everything and i keep hearing people talk about process rights they did not accept coerced statements they did provide counsel and all resources necessary for defense counsel they did curiously are you aware of all the things o civilized nations as an indispensable part of a justice system and the comment about nuremberg relevant to the military commissions trial is the one made by general hartmann thomas hartmann the discredited former legal counsel to the convening authority who said to the prosecutors these military commissions on guantanamo will not be like nuremberg there will be no acquittals you cannot set up a system to guarantee conviction think that it would have been great had the other side said let someone who was a lawyer who could support  is that correct i would say intelligence and counterterrorism yes all right and so i respect your views even though i will say that you did make allegations to urge those who can be tried in article three courts and i understand the interagency task force stablish by president obama's executive orders still conducting reviews reviews were supposed to have been completed in may now the deadlines been extended to july third general counsel jay johnson testify s today that they may not even be done by the end of the year and so if they can't be identified for trial in article three courts they should but many of the those who are culpable or maybe culpable at one time are foot soldiers people who are captured in the process of planting roadside bombs and the like they can be court marshaled and none of answer trials in federal court in article three courts as the obama administration said in its order in the first week are the way to go and the practical or rather the hypothetical problems that are raised again and classified information procedures act as it's known that has proven itself again and again to be a flexible successful tool for assessing whether or not hear it and appreciate his point and i hope you appreciate mine that i simply want to eliminate the other side of the argument and i don't contend that the gentleman has doesn't have an argument i just eliminate the other side which is that one could be a and some have been appointed the supreme court confirmed and served honorably in that capacity not as a lawyer so i make that point then i look at the time is that congress has tried to comply with the decisions of the supreme court and have passed person detainee treatment act and then we saw the hamdan case and then we did the military commissions act and we saw the bowmen and this congress has gone through jump through a lot of hoops to try to accommodate some judgments of the supreme court and in fact we have article three sections to strip the court the supreme court of having any jurisdiction over such acts and yet and directed the exclusive appeals to go to the d c circuit where the d c circuit found with the cases of article three section two stripping are legion in the history of the united states a very well founded principle and i want to make the point that we are here jumping through more hoops and attempt to try to accommodate the necessity for national security at the same time we're attempting to accommodate a supreme court that i think is out step its bounds more than once with regard to these issues that have to do with the detainees and and furthermore would not be an issue that had been for the fact that amnesty international lot of other organizations around the country in the world but decided to make it a political issue i'm among those who have been down to visit guantanamo bay as is mr johnson and we are what i saw down there was a location that most people who are incarcerated anywhere in the world would want to trade with them air conditioned cells private rooms menus with nine different items a day to choose three squares from the qur'an is for everybody who wants one no bibles for anyone because it ticks off the people who want to qur'an i mean the list goes on and on and on and so we're in the business here now of trying to accommodate a political issue and i believe that president obama has made a decision and it was two days after he was inaugurated that he signed the executive order and it has been since developed to be more complicated now we're trying to jump through it but the military commissions act to give already to another committee to to sort these inmates out the worst of the worst and we have records of recidivism and i have a recidivism rate roughly is what we saw when we turned the people loose who were the least risk to the american people and now we have the worst of the worst and the gentleman mr josselin has evaluated these two hundred forty two remaining detainees commissions act which i'm actually for that and i'm for doing it well but handing them over to nato i'll just tell you that in the end there will be innocent people who will die at the hands in our i think today dying at the hands of those who have been released from getting  this is a political decision not a prudent one and there will be more that will and among them would my friend of course i had yielded to the gentleman from massachusetts to a question i thank the gentleman for you i don't think there's any debate that there are some people that are guilty and i don't believe this is a debate that there are some people who are totally innocent what do we do about those that are totally innocent and are currently detained or have been detained what's the gentleman answer to that according to this chart that i'm looking at those that don't show indications that would be about fifteen and i think we adjudicate them all through the through they review tribunals the combat review tribe and if they are determined under that to be not guilty of the charges brought before them then we have to repatriate them back to  germany for example has said until the united states we want accept any because if they aren't safe enough to come to the united states then they're not safe enough to come to germany by then that applies to a number of other countries in the world and our argument needs to cases someone is totally innocent you can hold them in jail forever if they're totally innocent can you these individuals were picked up on the battlefield and oh no excuse me some of them were picked up near the battlefield and some of them weren't picked up anywhere near the anywhere near the battlefield many of them were picked up on the battlefield but by no means all and claiming what time i might have i would submit that we have a different understanding of the three hundred and i would ask that the gentleman get an additional several minutes  pose the question to you that has been framed by my colleague from iowa and the framing of it is that we don't care about the security of this nation i think the a refrain quite frequently and have been challenged for what seems to be by some opinion is overreaching using the supreme court to in fact  provide insecurity for the united states so help me understand though you may have said it i know that when it is repeated more facts come to mind the commitment that you thought you had with the president  ministration the previous announcement and then ultimately the commitment that you want to have to keep that position and what changes secondarily you would want to see in a military commission and thirdly how do you make the argument that you are not making this country less secure i would also say to hold that this is american meaning that this is who we are these are our values so we're not doing anything extraordinary but i think the underlying premise has to be that we are holding individual under a creation a creature of ours military commission and the issue is can we secure intelligence can we secure america if we do something different first of all safe and free is the slogan we have used from the beginning because we need bold and safe means safe to be i thought it interesting that the  congressman from texas believes that if terrorists are locked up among american criminals it will be the terrorists to recruit when in fact perhaps it will be the criminals who are born and raised in a democracy will recruit one never knows but the subject was my time is short if you can go back to the original question and i appreciate the overview as i gave you the overview appreciate what was a commitment you had from the military commissions were put on a halt immediately after the administration after the inauguration which i witnessed from guantanamo we believed that that was going to be the end instead we have hearings next week and while next question then what changes do you want in what is now still existing a military commission beyond the elimination there's an elimination meaning in what would you put in place the congresswoman i think that what's what's wrong with what the past administration did and what this administration seems to be starting to do is turning this upside down you don't settle where these people belong by figuring out what you want you don't say i want this guy to end up locked up for life so therefore i'm going to look at the evidence and say maybe he'd get acquitted in a federal court i'm going to put him in a military commissions where he could get less quoted as saying the following and tell me if you think it's a just definition of what we seem to be going to or that we're going to divide the prisoners into different classifications those whom we have good evidence against will give fair trials those we have weak evidence against we'll give less fair trials those we have no evidence against we'll just keep them locked up for preventive detention without any trial and all the other w of selection that has sort of intervening i think non statutory non constitutional process which is i'm just going to look at what i haven't got any money motor certain extent because it is subjective to say what evidence and who goes and who doesn't but but i would then on the military commissions would you believe that to be in affective going once they are truly fair they're going to look just like federal court and then there's no reason to accept the taint of the past on fairness of military commissions why drag them down when the only benefit that military commissions give you is that it's a second rate system of justice and you're going to get more conviction if you want to accept that i mean that answers itself yes you can the changes that are proposed are primarily cosmetic particularly because of the burdens on defense counsel not just resources but choice but if you propose full change that would make this geneva friendly a real court of law it would look like engaged in behavior that sinema called to the united states of the five hundred people or so that the bush administration released with no process whatsoever it's can be presumed that a few are making trouble but that's  where my intention is to invite many of the same witnesses i'd like to address some questions to mr josselin can you identify and that's why focus my analysis on the let's focus on mister the gentleman who purportedly died what do you know about him and any statements that he might have made regarding  big was the camp how big in what sense how many men were there from what i've read a few dozen at a time a few dozen at a time ok it would appear from all of the transcripts that i've read that  classified that there's a consistent theme that those men that would lead china because of persecution if you read similar statements coming from them i have read that some of them have said that yes his feelings about the issue that are attempting to be resolved first most people believe that the military commissions should be abolished secondly this is my impression so many people don't think that they can be perfected and this goes against some of the senate by my good friend the senior chairman of the armed services commission complying with the supreme court's various orders regarding the commissions in fact there have been four supreme court cases and the government's position is not prevail the situation it seems to me that congress wanted to say i don't mean to be saying this but if congress wanted to save itself a lot of work it could simply abrogate the military commissions entirely and that would permit military courts martial to go forward which  already been tested which are well accepted and as i say those who for security reasons or reasons of national security protections of sources and methods have to be tried under more stringent circumstances can't be tried in article three courts and so i see a system already in place two systems already in place for dealing with detainees at guantanamo as far as the preventive detention goes prolonged detention it's been my experience based upon my review of but in guantanamo is that most of the evidence of someone's future dangerousness is derived either from statements by the detainees and cells who you know engaging braggadocio or fellow detainees who decide they want to curry favor with the prison officials and denounce somebody i don't know of any reputable was a member of congress that nelson mandela should be continue to be held at robben island because he was a terrorist and he reaffirmed his commitment to that position after mr mandela was awarded the peace hundred four so clearly if a decision like that is left up to the executive there's always the possibility of human error if it's left up to courts and i'll be finished up in two seconds it's left up to court then we find ourselves in the same position as we know from cases like judge samuel kent judges are human they make mistakes we know from the five four decisions that consistently come out of the u s supreme court that judges have an ideological bias and i don't see how that's of oil so i would i would urge this committee to abrogate entirely repeal the military commissions act and and restart courts martials and article three proceedings for those case that need it cannot be made fair and they cannot be made to look fair we hear a lot about arrests on the battlefield and miranda on the battlefield this is this is a distraction most of the people of guantanamo were not arrested ballfields they were arrested in apartments and miranda is not a question voluntariness the question we can't hide from what the commissions were set up to do not just people with tainted evidence but hide the details and identities of those who obtained that evidence to hide the idea details and the identities of torture and if that's the goal the result will be  legitimate there is no there is no system under our law that permits us to put people to deprive people of their liberty without process you can't do it is a legitimate war but we can't back away from what we are set out to do here what i believe congress has to do is figure out a way to assess the cases act want to with a year and a half of my career working to get access to the commission proceedings and within the first team of human rights observers who went to guantanamo to observe them and i could not concur more strongly with lieutenant colonel van de velde or ms leboeuf that the commissions to date have been been as i said in my testimony a gross failure of law and policy there is nothing that i have said in my written or oral testimony that should indicate to the contrary in fact i think i've been quite clear that i disagree profoundly that these commissions should be continued what should be done with respect to the resolution of the cases that guantanamo i very much hope that with respect the chairman's characterization of their approach that we are on the way to taking it is wrong if that is indeed the approach it would be not only contrary to law but an embarrassment to the united states what i think we should do if i could wave a magic wand and set policy here is divide the detainees into two  categories with very limited exceptions as i set forth for a third category one is that the people who should be prosecuted who have done something wrong should be prosecuted in article three courts i continue to believe that's possible the president and the senate armed services committee appear to disagree with me and that is why i have offered recommendations where if they are to pursue the course of military commissions how i think they can do that most effectively a second category are the people that should be released or transferred either because they have done absolutely nothing long or no combat t of any kind and even the bush administration before it left identified some remaining fifty to sixty people who fit that category and i understand those people are in the process of being released or transferred now i believe that there is a limited very limited third category a person who committed taliban troops in battle for example in two thousand and two could be transferred to the afghans for continued detention or i think could be transferred by the united states to continue detention i think that's a wise course i think it comes with tremendous strategic cost to the administration of the united states in light of the policy course and unlawful course we've pursued in the last eight years we are now behind the ball in protecting human rights internationally in abiding by our own law that not only jeopardizes and has jeopardized our relations with our allies including our joint counterterrorism efforts it has set us back a generation in combating terrorism around the world  as prisoners of war during the international armed conflict phase of the afghan conflict with the united states and afghanistan if we continue to detain them in afghanistan my view would be that as a matter of policy it is wise to treat them as prisoners of war now this congress told the supreme court you didn't have jurisdiction and they heard the cases anyway and our founding fathers never imagined that the legislature would be jealous of protecting its own power from my perspective i receive the hamdan case on thursday came out on a thursday i got my hands on the on the decision on a friday to be in my backyard on saturday morning by one thirty in the afternoon i came to a conclusion all written up with marginal notes in a reading but it was too late because the president and their respective committee in the house and the senate and i presume also that that time ranking members had already made the statement we're going to try to comply with the supreme court i think that this congress has got to jealously protect its constitutional power or we end up with these kind of analyses that cause us to jump through these hoops and and i thought it was also interesting that the lieutenant colonel van de velde then later on said that judges have video logical bias and we can't get away from it so i think that balances this and i think you see it with a legitimate perspective and i just add mine to your very legitimate supreme court i would simply i would tell them that we have given them direction that's consistent with the constitution and we have national security at stake and you have to be have to be the president united court itself that they didn't have jurisdiction and that we take an oath to the constitution as well not an oath to their interpretation of it as amended on the fly the nine supreme court justices are the last nine people on the planet that should be amending our constitution you're  heavily as well with the gentleman you we can extend the clock i've got a point i like i just want to i'll take only about fifteen seconds in other words what the gentleman is saying when you say we should proceed under the laws that are is that we should ignore the decisions because we think it wrong we have those circumstances that arise yes and i recognize i recognize the precedents that have been established for two hundred and six years however i make the  point that what is what is the chairman and the chairman of the subcommittee on the full committee what's their alternative if the supreme court determines that they are going to make decisions that security united states at risk that are extra constitutional question if the supreme court rules incorrectly the statutory matter we can pass a constitutional matter is this is our only recourse is to amend the constitution through the normal process of doing that  suggestion what i'm really suggesting is there is precedent for what i have suggested in the case of important national security issues when the court has made whether in the collective judgment of the congress and the executive branch that extra constitutional decision where we clearly question of whether this point was also raised by lieutenant colonel van de velde evaluating someone's future dangerousness and i think it's an accurate one but i know that the gentleman mr joslin has evaluated each of these and time it's a physical attack designed to physically injure them the worst thing we do to punish them is reduce their outdoor exercise time down to two hours a day and as far as i can determine there are no charges brought against them for assaulting our guards but i wonder if that we're in simply by bringing those charges against them and sentencing them under the charge that we would i think have to create in this congress attacking our guards i mean i walked among a group of just this past week  they'd like to address that idea the gentleman's time has expired someone on the panel to answer the question if any of the most of the detainee particularly the high value detainee they are under protective order that prohibits any were being spoken about the conditions of confinement had they said anything about any attacks witnessed or perpetrated against guards to their attorney very quickly i want to have a number of other questions if someone lays a roadside bomb in afghanistan is that an act of war or is that a crime and why  in order for a crime to be a crime of war it has to be either directed at a protected person i don't know assuming someone tries to kill american soldiers is that a crime or is that an act of war would it would be an act of war but it wouldn't be a war crime that's what i'm saying that's what i meant to say i'm sorry so that would be an act of war wouldn't be a crime so the person who did that presumably if captured to be a prisoner of war i but would not be subject to  criminal prosecution correct unless they had lost their their combat immunity by not wearing a uniform or a distinctive oh and integral war if they're not wearing a uniform that would be a crime then they would be subject to prosecution because they would not have combatant community ok thank you now i'm obviously disturbed by discussion of the ability of the   to any power to detain people indefinitely on the grounds of potential danger but it is pursuing if it exists at all to the ability of holding someone of holding a combatant that is not a punishment imprisonment but to hold someone for some period of time because of their combatant status and the period of time being while the war is on that would be under traditional laws of war certainly but the hamdi decision made justice o'connor made the distinction between punitive detention and non punitive detention and said that he gave as i say limited authority in limited cases and clearly indicated that that would last forever so when the president said that there are some people who are too dangerous to release or if anybody proposed preventive detention because of authority no i don't believe it does because i believe that detention on the basis of dangerousness alone is unconstitutional ok the supreme court has never authorized a statute of that nature and i think would be contrary to due process and most of the values that the united misinterpret to give us that our foreign commerce clause the way the four hundred former foreign congress that's for example if we wanted to exercise extra territorial authority to detain people on the basis of dangerousness the only theory i could of military force the statute that congress passed in two thousand and one authorizing the president to use military force included with it implied detention authority so that the president could attain in case somebody who was  actively engaged directly engaged in hostilities against the united states in afghan out the traditional situation in world war two things are simple if you found someone wearing a very marked uniform holding a rifle and you captured him in normandy then he was obviously a prisoner of war you put him in a prisoner of war camp for the balance of the war if you pick up someone in afghanistan who says no i live in this village question is our current processes in afghanistan are not adequate the first are not adequate the answer the first question is if we're talking about a circumstance of traditional international armed conflict as was the case in two thousand  out and indeed that was exactly what the army did in iraq in one thousand nine hundred one and in many other instances since the litigation post september eleventh two thousand and one it is now increasingly clear that those people also likely have or at least some set of those people also likely have some additional set of due process rights including the right to the question of whether the decision recognizing a constitutional right to habeas corpus of the guantanamo detainees many are talking of the circumstances in afghanistan today in afghanistan in bagram in time anywhere what what process is necessary for someone whom we say we're not charging with a crime we want to hold him as  combat gets a slightly complicated just indulge me for a moment there are two kinds of armed conflict recognized under international law international armed conflict state again state u s versus afghanistan which most would say ended in two thousand and three with the transfer  sovereignty there is also so called non international armed conflict which would be better described as transnational armed conflict that is armed conflict between two parties where one party is not a state by that an organization a substate of a failed state  war classically yes absolutely there is nothing in international law that precludes continued detention in a circumstance of non international armed without any process there is common article three which requires some basic standard  process but it doesn't give much content to what that amount of process would be required what is required is some separate affirmative authority that is there's nothing in international law that precludes continue detention or anything international law that provides any state the authority to engage in my final question from what you're saying now to hold someone in and a civil war in which we have supporting one side the government which is what we normally is my view is that congress needs to not only specifically authorized detention and the supreme court has now held at least to an extent was that authorization at least to some extent and to provide for ask you to yield i was i was very interested also in the testimony the when it's so unless we're going to a third round of question i'll just simply yield back i appreciate that i'm sure anybody appreciates that i thank the witnesses for their participation and their