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i 

68–161 2011

[H.A.S.C. No. 112–53] 

TEN YEARS AFTER THE 2001 

AUTHORIZATION FOR USE OF 

MILITARY FORCE: CURRENT STATUS 

OF LEGAL AUTHORITIES, DETENTION, 

AND PROSECUTION IN THE 

WAR ON TERROR 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD 

JULY 26, 2011 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED TWELFTH CONGRESS

HOWARD P. ‘‘BUCK’’ MCKEON, California, Chairman 

ROSCOE G. BARTLETT, Maryland 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

K. MICHAEL CONAWAY, Texas 

DOUG LAMBORN, Colorado 

ROB WITTMAN, Virginia 

DUNCAN HUNTER, California 

JOHN C. FLEMING, M.D., Louisiana 

MIKE COFFMAN, Colorado 

TOM ROONEY, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

SCOTT RIGELL, Virginia 

CHRIS GIBSON, New York 

VICKY HARTZLER, Missouri 

JOE HECK, Nevada 

BOBBY SCHILLING, Illinois 

JON RUNYAN, New Jersey 

AUSTIN SCOTT, Georgia 

TIM GRIFFIN, Arkansas 

STEVEN PALAZZO, Mississippi 

ALLEN B. WEST, Florida 

MARTHA ROBY, Alabama 

MO BROOKS, Alabama 

TODD YOUNG, Indiana 

ADAM SMITH, Washington 

SILVESTRE REYES, Texas 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

JAMES R. LANGEVIN, Rhode Island 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

MADELEINE Z. BORDALLO, Guam 

JOE COURTNEY, Connecticut 

DAVE LOEBSACK, Iowa 

GABRIELLE GIFFORDS, Arizona 

NIKI TSONGAS, Massachusetts 

CHELLIE PINGREE, Maine 

LARRY KISSELL, North Carolina 

MARTIN HEINRICH, New Mexico 

BILL OWENS, New York 

JOHN R. GARAMENDI, California 

MARK S. CRITZ, Pennsylvania 

TIM RYAN, Ohio 

C.A. DUTCH RUPPERSBERGER, Maryland 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

COLLEEN HANABUSA, Hawaii 

ROBERT L. SIMMONS II, Staff Director 

CATHERINE MCELROY, Professional Staff Member 

PAUL LEWIS, Professional Staff Member 

LAUREN HAUHN, Research Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2011 

Page 

HEARING: 

Tuesday, July 26, 2011, Ten Years After the 2001 Authorization for Use 

of Military Force: Current Status of Legal Authorities, Detention, and Prosecution in the War on Terror .............................................................................. 1 

APPENDIX: 

Tuesday, July 26, 2011 ............................................................................................ 41 

TUESDAY, JULY 26, 2011 

TEN YEARS AFTER THE 2001 AUTHORIZATION FOR USE OF MILITARY 

FORCE: CURRENT STATUS OF LEGAL AUTHORITIES, DETENTION, 

AND PROSECUTION IN THE WAR ON TERROR 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

McKeon, Hon. Howard P. ‘‘Buck,’’ a Representative from California, Chairman, Committee on Armed Services .................................................................. 1 

Smith, Hon. Adam, a Representative from Washington, Ranking Member, 

Committee on Armed Services ............................................................................ 3 

WITNESSES 

Chesney, Robert, Former Advisor to the Detainee Policy Task Force ................ 9 

Dell’Orto, Daniel, Former Deputy General Counsel and Acting General Counsel, U.S. Department of Defense ......................................................................... 6 

Engel, Steven, Former Deputy Assistant Attorney General, U.S. Department 

of Justice Office of Legal Counsel ....................................................................... 7 

Mukasey, Hon. Michael B., Former Attorney General of the United States ...... 4 

APPENDIX 

PREPARED STATEMENTS: 

Chesney, Robert ................................................................................................ 86 

Dell’Orto, Daniel ............................................................................................... 60 

Engel, Steven .................................................................................................... 66 

McKeon, Hon. Howard P. ‘‘Buck’’ .................................................................... 45 

Mukasey, Hon. Michael B. ............................................................................... 49 

Smith, Hon. Adam ............................................................................................ 47 

DOCUMENTS SUBMITTED FOR THE RECORD: 

Testimony Delivered by John O. Brennan, Assistant to the President 

for Homeland Security and Counterterrorism, at New York University 

School of Law on March 18, 2010 ................................................................ 111 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[There were no Questions submitted during the hearing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Conaway ..................................................................................................... 125 
Page

IV 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING—Continued 

Mr. Smith .......................................................................................................... 127 
(1) 

TEN YEARS AFTER THE 2001 AUTHORIZATION FOR USE 

OF MILITARY FORCE: CURRENT STATUS OF LEGAL 

AUTHORITIES, DETENTION, AND PROSECUTION IN 

THE WAR ON TERROR 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Tuesday, July 26, 2011. 

The committee met, pursuant to call, at 10:05 a.m. in room 2118, 

Rayburn House Office Building, Hon. Howard P. ‘‘Buck’’ McKeon 

(chairman of the committee) presiding. 

OPENING STATEMENT OF HON. HOWARD P. ‘‘BUCK’’ MCKEON, 

A REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED SERVICES 

The CHAIRMAN. The committee will come to order. Good morning. 

Much has changed over the past 10 years since the attacks of 9/ 

11 and the 2001 passage of the Authorization for Use of Military 

Force. Changes have been made to the Federal agencies, laws, and 

the lives of thousands of our men and women who have taken the 

fight to the enemy. We have borne the heavy burden of losing some 

of those brave men and women. These Americans, whether military 

or civilian, have paid the ultimate price as part of an effort to prevent terrorists from reaching our shores. Terrorists still pose a 

grave threat to the United States, but they have changed as well. 

We now face a diversified threat emanating from multiple locations. While we believe that Al Qaeda’s capacity to launch widespread attacks has been diminished by the unrelenting work of our 

military and intelligence professionals, there are new and different 

faces of the same enemy in places like Yemen and Somalia. Our 

Government’s counterterrorism leaders say that Al Qaeda in the 

Arabian Peninsula is now the greatest threat to the United States. 

We must acknowledge this reality and move forward. 

When I became chairman, I told our members that the committee 

must operate on a wartime footing. This is because, as Members 

of Congress, we are charged by our constituents, and Article I, Section 8 of the Constitution to ‘‘provide for the common defense,’’ ‘‘define and punish . . . offenses against the law of nations,’’ ‘‘declare 

war,’’ ‘‘raise and support armies,’’ ‘‘provide and maintain a navy,’’ 

‘‘make rules for the government and regulation of the land and 

naval forces,’’ and ‘‘to make rules concerning captures on land and 

water.’’ 

It is time to reaffirm Congress’ role in identifying the scope of 

the current conflict, and just as importantly, it is time to reaffirm 

Congress’ support for those we have asked to defend us against the 

threats we face. 
2 

These are the reasons why I believe the House strongly supported inclusion of the affirmation of the 2001 Authorization for 

Use of Military Force in the National Defense Authorization Act for 

Fiscal Year 2012. 

Unfortunately, the Administration has suggested that Congress 

is trying to limit options for handling terrorism suspects. Yet it is 

the Administration’s foreclosure of some of the most fundamental 

aspects of this war effort that have forced Congress’ hand. For example, we recently heard Vice Admiral William McRaven confirm 

in his testimony before the Senate that bringing detainees to Guantanamo is ‘‘off the table.’’ 

A law of war detention system for future captures focused on intelligence collection and keeping terrorists out of the United States 

is essential to our success. 

We cannot possibly prefer terrorists to be held aboard Navy 

ships, and we cannot possibly be comfortable with the policy whereby bringing terrorists to Guantanamo is ‘‘off the table,’’ but bringing them to the United States is not. In certain cases, prosecution 

may also be appropriate for law of war detainees. 

When it comes to deciding the forum for such prosecution, the 

Administration has shown time and again that not only is prosecution in Federal court their overwhelming preference for current detainees, it is the only option they will seriously consider for future 

captures. 

The Administration has spent countless hours touting the Federal criminal justice system. I agree that we have an excellent 

court system. I simply disagree that military commissions, like detention at Guantanamo, should be off the table for future captures. 

In fact, the strong preference should be for prosecution by military 

commission. 

The Administration and their supporters also frequently cite the 

number of terrorism cases that have been successfully prosecuted 

in Federal court. However, this is not a very helpful point of comparison given that we do not know how many terrorists have instead been released and never prosecuted because of a lack of permissible evidence. Further, the courtrooms at GTMO [Guantanamo] have sat empty for 21⁄2 years at the direction of the Administration. The commission system cannot prosecute cases that it does 

not have. 

The problem is further heightened when the Administration 

delegitimizes the commission system with their words and actions. 

Attorney General Holder’s reluctant announcement to prosecute 

the alleged 9/11 co-conspirators in a military commission, during 

which he blamed Congress, comes to mind. Why would an observer 

take seriously a forum that the Administration itself seems to suggest is a lesser system of justice? 

I disagree with this notion. The military commission system is 

fair and just, and it should be resourced with the best personnel 

our Government has to offer. Instead of undermining the system, 

Attorney General Holder and the Department of Justice should 

lend their full support and resources to the Department of Defense, 

and the military commissions should be given a real chance to succeed. Perhaps then it will be fair to compare and contrast it with 

other systems. 
3 

This is not a time for division. The war we are fighting is against 

our enemies, Al Qaeda and their associates. It is time for us to affirm that our enemies and the legal authorities we have provided 

to fight them have evolved. So too must our policies, particularly 

those dealing with the law of war detention and prosecution. 

And I will yield to our ranking member, Mr. Smith, for his opening statement. 

[The prepared statement of Mr. McKeon can be found in the Appendix on page 45.] 

STATEMENT OF HON. ADAM SMITH, A REPRESENTATIVE FROM 

WASHINGTON, RANKING MEMBER, COMMITTEE ON ARMED 

SERVICES 

Mr. SMITH. Thank you, Mr. Chairman. I appreciate that we are 

having these hearings. I think these are critical issues, and they 

are critical issues that have not yet been resolved. And clearly, the 

conflict between the way Congress wants to resolve them and the 

way the President wants to resolve them has led to problems, has 

led to limitations, frankly, on how we can act, beginning with the 

situation at Guantanamo Bay. 

Part of the reason that the President is reluctant to bring any 

future inmates to Guantanamo Bay is because of laws that Congress has enacted that severely restrict what can be done with inmates once they are taken there. The larger debate about whether 

or not we should keep Guantanamo Bay open I think is still appropriate to have. I for one think we should close it. I understand 

there are those who are on the other side of that. But even if you 

feel Guantanamo Bay should remain open, this current situation is 

not advantageous to that position, a situation where if an inmate 

goes to Guantanamo, he cannot be transferred to the United States 

for trial, he cannot even be sent back to a home country because 

of the severe restrictions that have been placed on the President 

by the previous Congress, and would continue to be placed on the 

President by some of the bills that have been introduced and 

passed thus far. 

I think we need to clarify the situation one way or the other, to 

have a clear policy. And I think the President and Congress actually agree on one basic principle, and that is all three options 

should be on the table. You should have the option of indefinite detention, you should have the option of military commissions, and 

you should have the option of Article III courts. 

How do we keep all of those three options on the table in a realistic way? I think by and large there is agreement on that point. 

There is just a difference about when each option should be put in 

place, and that conflict, as I said, has now led to a very, very difficult situation where all the options are not realistically on the 

table. 

But, yes, Article III courts have worked, and unfortunately the 

bill that we passed out of here and out of the full House would 

have severely restricted the ability to prosecute people in Article III 

courts. I will perfectly admit that some cases are not appropriate 

for that. But we are taking the opposite approach in this committee 

and this Congress and saying it is never appropriate and will not 

be allowed. That needlessly ties the President’s hands. 
4 

And as I think our witnesses will get into in greater detail and 

with more knowledge, there are certain advantages to being able 

to use Article III courts, and if you take those off the table you create problems for our variability to prosecute the war on terror. 

So, yes, we need a clear picture on what our detention policy 

should be. We need a clear picture on what our interrogation policy 

should be. But I feel the cornerstone of that should be to keep all 

the options on the table and not needlessly restrict the executive 

branch in their ability to prosecute that war. 

We are not there yet. I appreciate the chairman’s continuing to 

bring this issue up. We have worked very closely together on trying 

to work out those details, and I am optimistic that we will get 

there, but it is appropriate that we have this hearing, appropriate 

that we have this discussion, so that hopefully we can get to a 

place where the executive branch’s and the legislative branch’s differences don’t restrict our ability to have all the options on the 

table and to fully prosecute this war. 

I will completely agree with the chairman’s statements about 

how important this war is, about the fact that Al Qaeda and their 

affiliates still threaten us, and we need to be in a position to 

counter them. I just differ a little bit on what the policy should be 

and the best way to encounter them. 

The last thing I want to do, we have remarks by John Brennan 

which I would like to submit for the record, without objection. 

[The information referred to can be found in the Appendix on 

page 111.] 

The CHAIRMAN. Without objection, so ordered. 

Mr. SMITH. Thank you, Mr. Chairman. I yield back. 

[The prepared statement of Mr. Smith can be found in the Appendix on page 47.] 

The CHAIRMAN. Thank you. 

I welcome our great panel of witnesses that are here to speak on 

these very important issues today. We are honored to have with us 

today the Former Attorney General and Former Chief Judge of the 

U.S. District Court for the Southern District of New York, the Honorable Michael B. Mukasey. 

We also have Former Principal Deputy General Counsel and Acting General Counsel for the Department of Defense, Mr. Daniel 

Dell’Orto. 

We also have Former Deputy Assistant Attorney General for the 

Department of Justice’s Office of Legal Counsel, Steven Engel. 

And we have professor Robert Chesney from the University of 

Texas Law School. Professor Chesney previously served as an adviser to the Administration’s Detention Policy Task Force and is a 

Co-Founder of the Lawfareblog. 

A very distinguished panel who are very well versed in our subject here today, and we are happy to have you with us. Thank you 

for being here. 

We will hear first from Judge Mukasey. 

STATEMENT OF HON. MICHAEL B. MUKASEY, FORMER 

ATTORNEY GENERAL OF THE UNITED STATES 

Mr. MUKASEY. Chairman McKeon, Ranking Member Smith, 

members of the committee, I want to thank you for the opportunity 
5 

to appear at this hearing, and particularly in the company of the 

people who are sitting here who are well informed and well able 

to testify on this subject, which is one that is literally of vital interest to this country—how we can go about defending ourselves 

against the threat of Islamist terror, which is the greatest existential threat to this country since the Civil War. 

The authorities available to us to meet the terrorist threat are 

now controlled by what turns out to be a patchwork of statutes, 

policy improvisations and court rulings; the principal statute, the 

Authorization for the Use of Military Force is, as the chairman 

pointed out, 10 years old and was passed in the immediate aftermath of the attacks of September 11, 2001. 

Although two administrations have relied on it for authority to 

detain terrorists, the statute does not even mention the word ‘‘detention,’’ let alone set standards for who to detain, under what circumstances, and where. 

We need a statute that helps organize and rationalize the process, like the one that you have passed, affirming that we are, in 

fact, in a global war with shadowy adversaries who do not follow 

the rule of law. Our troops need clear authority to capture and hold 

dangerous people and to obtain from them, when possible, valuable 

intelligence about others of their kind who may be out there. 

I think three recent events dramatize the need for the statute 

that you have passed. One is the testimony that was alluded to by 

the chairman of Vice Admiral William McRaven, who made it clear 

in testimony to a Senate committee that there is in place no coherent policy with respect to terrorists encountered abroad, that we 

are faced with a choice between killing them, holding them on 

board ships for a limited time to obtain intelligence if possible, and 

then either sending them to another country that will take them, 

bringing them to the United States for trial in a civilian court, or 

freeing them. 

We have also seen the recent disclosure that a man named 

Warsame was apprehended in April, held aboard one of our vessels 

for 2 months so that intelligence could be obtained from him, and 

then given Miranda warnings and brought to the United States to 

stand trial in a civilian court. 

And, finally, a letter from 20 United States Senators was all that 

prevented the Administration from releasing to the Iraqis a dangerous Hezbollah commander who we have in our custody in Iraq, 

even though we have no guarantee that he would have been tried 

or held with appropriate restrictions by an Iraqi administration 

that is functioning increasingly as a satellite of Iran the closer we 

come to pulling our troops out of Iraq. 

The choice among unpalatable alternatives, as described by Admiral McRaven, is what we face because our commanders do not 

have recourse to laws that empower them to capture and hold people whose principal goal in life is to destroy our civilization. 

A defendant charged with serious terrorist acts is brought to this 

country to stand trial in a civilian court, even though we have on 

the books a Military Commissions Act that suggests that he could 

be tried before a military commission, and even though we have a 

state-of-the-art facility at Guantanamo that can be used to detain 

and try accused terrorists without any of the risks of bringing them 
6 

to this country, and without the perverse reward to terrorist behavior that is inherent in treating accused terrorists better than soldiers who obey the laws of war. 

We have a defendant like Warsame, brought to the United States 

to stand trial in a civilian court, even though his accused acts make 

him arguably eligible for trial before a military commission—that 

doesn’t seem to have been considered—and even though we have 

available that state-of-the-art facility at Guantanamo, and even 

though we face hurdles in the civilian court that make the outcome 

far from certain as the result of his having been detained for 2 

months aboard a naval vessel and interrogated before being advised of his legal rights, hurdles that would not be serious if he 

were being tried before a military commission. 

And finally, we have a hardened terrorist whom the Administration proposes to release to Iraqi authorities at a time when we cannot rely on them to keep him confined and win. If we cannot continue to hold him in Iraq, we have available the facility at Guantanamo that we refuse to use. 

I am grateful to this committee for considering this legislation 

and for passing it to replace and to bolster the system that we have 

with a reliable standard for assuring that dangerous people can be 

detained in secure and humane conditions. 

And I thank you also for your attention. 

The CHAIRMAN. Thank you, Judge. 

[The prepared statement of Mr. Mukasey can be found in the Appendix on page 49.] 

The CHAIRMAN. Mr. Dell’Orto. 

STATEMENT OF DANIEL DELL’ORTO, FORMER DEPUTY GENERAL COUNSEL AND ACTING GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE 

Mr. DELL’ORTO. Thank you, Mr. Chairman, Ranking Member 

Smith, and members of the committee for your invitation to appear 

before the committee today. It is an honor to once again appear before this committee, this time in my individual capacity. 

I commend the chairman and the committee for addressing the 

issues that are the subject of this hearing. I also am honored to appear with Honorable Judge Mukasey and with Steve Engel, with 

whom I had the privilege of working during my time in Government, and both of whom I hold in the highest regard. 

As some of you may recall, as a civilian attorney I served as the 

Principal Deputy General Counsel of the Department of Defense 

from June 2000 through March 2009, not long after I completed a 

271⁄2-year career as an Active Duty Army officer. I was in the Pentagon on 9/11, and thereafter participated in the formulation of the 

legal positions that the Department adopted in the aftermath of 9/ 

11, including those relating to the interpretation of the Authorization of the Use of Military Force, the legal basis for the conduct of 

operations against Al Qaeda, the basis for detention of captured 

enemy combatants, the decision to establish the detention facility 

at Guantanamo, and the implementation of President Bush’s military order of November 13, 2001, which created military commissions. 
7 

The Authorization for the Use of Military Force of September 18, 

2001, has served the Nation well. Nevertheless, at the 10-year 

mark, it is appropriate to consider whether there should be a reaffirmation of that authorization and appropriate amendment. 

From the beginning of our fight against Al Qaeda, well before 9/ 

11, it has been apparent that we are at war against a nontraditional enemy. The nontraditional nature of our foe has required resourcefulness by every entity of our national security structure 

from the rifleman on the ground in Afghanistan all the way up the 

chain of command to the President in his role as Commander in 

Chief. 

As the enemy has changed its tactics and the locations of the 

planning for and conduct of its attacks, the rifleman and his commanders at all levels have had to be nimble and adaptable in the 

face of the many challenges that this nontraditional foe has thrown 

at us. 

To the extent that the aAuthorization for the Use of Military 

Force falls short of providing the President and his subordinate 

commanders with the full range of authority he and they need to 

bring the fight to this changeable foe, then it should be adjusted 

to do so. 

As one who has advised and aided senior civilian and uniform 

leaders at the Department of Defense as they wrestled with the decisions related to the detention of enemy combatants, the establishment of the detention facility at Guantanamo and the structure of 

military commissions, I remain firmly supportive of those initial 

decisions and remain convinced that those decisions were correct at 

the time they were made. 

There is absolutely every reason to continue to move important 

detainees to Guantanamo for detention and intelligence gathering. 

And I remain firmly convinced that the military commissions 

should be the preferred forum for the adjudication of the war 

crimes committed by those who have been waging war unlawfully 

against our Nation and its citizens. 

I am prepared to respond to your questions. Thank you. 

[The prepared statement of Mr. Dell’Orto can be found in the Appendix on page 60.] 

The CHAIRMAN. Mr. Engel. 

STATEMENT OF STEVEN ENGEL, FORMER DEPUTY ASSISTANT 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE OFFICE OF LEGAL COUNSEL 

Mr. ENGEL. Thank you, Chairman McKeon, Ranking Member 

Smith and members of the committee. 

I appreciate the opportunity to appear here today to discuss the 

legal framework for the war on terror now nearly 10 years after the 

attacks of September 11. 

And I am particularly honored to appear beside Judge Mukasey 

and Mr. Dell’Orto, two extraordinary public servants with whom I 

had the privilege of working during my time at the Department of 

Justice. 

On September 11, Al Qaeda took the United States by surprise, 

and the legal framework for this conflict has taken the better part 

of a decade to catch up. The traditional laws of war are premised 
8 

upon principles of reciprocity and the distinction between combatants and civilians. That framework provides clear answers to who 

may be detained, how they must be treated, and where they should 

be prosecuted. 

None of these answers is self-evident when it comes to the nontraditional enemies against whom we fight in the war on terror. 

The committee, in enacting the National Defense Authorization 

Act for 2012, has taken an important step forward in addressing 

these questions. Section 1034, in particular, would update the statutory authorization for this conflict by codifying the definition of 

who we are fighting, that the executive branch, over two administrations now, has relied upon in this conflict. 

The Act would affirm that the United States is engaged in a continuing armed conflict with Al Qaeda, the Taliban, and associated 

forces, and that in this conflict the President may detain those who 

are a part of or who are substantially supporting the enemy. 

None of this should be controversial. The Obama Administration 

currently relies on these very same words in fighting this war, and 

these words have been vindicated by the D.C. Circuit. Yet some 

have claimed that congressional authorization could constitute a 

new declaration of war that would dramatically expand the conflict. 

I confess that I do not understand this. Congress already has authorized the President to wage war against Al Qaeda and its supporters wherever they may be found. One week after the September 11 attacks, Congress granted the President the current 

statutory authority under the Authorization for the Use of Military 

Force, the AUMF. By its terms, this statute was not limited to Al 

Qaeda, and it was not limited to Afghanistan. Rather, Congress authorized the President to take the fight to the enemy, no matter 

where they were, or where they spring up over time. 

Over the past decade, U.S. forces have done just that, fighting 

Al Qaeda in Afghanistan, in Pakistan, and its affiliates in places 

such as Iraq, Yemen, and Somalia. In the course of that conflict, 

the United States has captured Al Qaeda members in those countries, and many others, and has detained them under the laws of 

war. Section 1034’s definition of the enemy thus does nothing more, 

but also no less, than give the President’s interpretation the force 

of law. 

The statute is needed because the AUMF was appropriately focused on the September 11 attacks, yet over the past decade, the 

threat from Al Qaeda and like-minded organizations has developed 

in new and different ways. It is no doubt reasonable for the President to classify Al Shabab, the Pakistani Taliban or Al Qaeda’s 

homegrown franchises in Iraq or Yemen as part of the same enemy 

with whom we are at war under the AUMF. But as the United 

States continues its military operations outside of Al Qaeda’s original hideouts in Afghanistan and its litigation challenges emerge to 

such decisions, as they inevitably will, it becomes increasingly important for Congress to weigh in. In the absence of a clear statement from Congress, the courts may well have the last word in determining whom we may detain, and, by extension, whom the military may target. 

I appreciate the committee bringing attention to these issues. 

And I appreciate the committee putting this issue in the forefront 
9 

of the National Defense Authorization Act. That statute will 

strengthen the Administration’s hands in the courts and will 

strengthen our military’s ability to take those measures necessary 

to protect our national security. 

Thank you, Chairman McKeon and Ranking Member Smith, for 

the invitation to appear here. And I look forward to our discussion 

this morning. 

The CHAIRMAN. Thank you very much. 

[The prepared statement of Mr. Engel can be found in the Appendix on page 66.] 

The CHAIRMAN. Professor Chesney. 

STATEMENT OF ROBERT CHESNEY, FORMER ADVISOR TO THE 

DETAINEE POLICY TASK FORCE 

Mr. CHESNEY. Chairman McKeon, Ranking Member Smith, and 

members of the committee and staff, thank you for the opportunity 

to testify today. 

My aim is to convince you that the optimal policy is one in which 

the President has, and is willing to use, the maximum range of 

lawfully available tools when it comes to capturing, getting intelligence from, and ensuring the long-term incapacitation of terrorists. 

Toward that end, I want to make three points: 

Point one. Civilian criminal prosecution in some instances is the 

most effective tool for ensuring the long-term detention of a terrorism suspect. Congress should not take this tool out of the President’s hands. This can be true for several reasons, one of which is 

illustrated by the Warsame case. Simply put, the civilian trial option will not require the Government to prove the details of the relationship among Al Qaeda, Al Shabab and Al Qaeda in the Arabian Peninsula. This is something the Government no doubt can do 

in a closed-door setting, in a classified briefing, but may well prefer 

not to do outside of a SCIF [Secure Compartmentalized Information Facility] in the interests of protecting sources and methods, 

and in order not to reveal the current state of our penetration of 

these networks. 

A military commission trial, in contrast, might require such a 

showing in order to establish personal jurisdiction over Warsame. 

In such a showing, we would also likely be required eventually, 

were we simply to hold Warsame in long-term law of war detention 

at Guantanamo or elsewhere, as it is more likely than not that a 

person captured in his circumstances would eventually establish 

the right to habeas review. 

Of course, there are other factors relevant to the decision as to 

which system makes the most sense for long-term detention in a 

particular case. And I discuss these other factors in considerable 

detail in my written testimony. For now it suffices to say that one 

size doesn’t fit all, and it doesn’t make sense to make an acrossthe-board predetermination to the contrary. 

Now, that is true for all of the lawfully available options, which 

brings me to my second point. Other options that are lawful in certain circumstances include both trial by military commission and, 

separately, the use of military detention consistent with the law of 

war. In some instances in fact, one or other of those options will 
10 

be the most effective tool available to incapacitate a dangerous person for the long term. When that is the case, and even if Guantanamo is the only practically available location for using them, the 

Administration should be willing to use these options and not just 

for legacy cases. That is to say, the President shouldn’t take these 

tools out of his own hands going forward. 

Now you will notice so far I have only been talking about the options for long-term detention. I have not been talking yet about collecting intelligence, and that brings us to my final point. The question of how best to detain over the long term and the question of 

how best to acquire intelligence from a captured person are two different matters, and the answer to one does not dictate the answer 

to the other. 

For example, selecting civilian criminal prosecution, the best 

tools for long-term detention in a particular case, by no means 

obliges the Government to Mirandize the person upon capture, to 

cease questioning if the person asks for a lawyer, to employ only 

law enforcement personnel as questioners, or otherwise to treat a 

terrorism suspect as if it is a run-of-the-mill criminal or questioning is merely designed to obtain evidence admissible in court. 

Far from it. 

As Warsame illustrates, in terrorism cases one can and frequently should prioritize intelligence collection on the front end, 

even though this wouldn’t be ideal from the standpoint of a possible prosecution on the back end. But it doesn’t follow that you 

just can’t prosecute on the back end or that you somehow shouldn’t 

prosecute on the back end. 

What does follow, I think, is that all of these decisions require 

nuanced professional case-specific judgments with participation 

from the military, the Intelligence Community, and the Justice Department, and of course they also require access to the full slate 

of legally available tools and the will to use them. 

In conclusion, let me emphasize that my written statement goes 

into far more detail on all of this, and it also addresses a range of 

other issues raised by the Warsame case, including matters such 

as detention on naval vessels and the law relevant to ICRC [International Committee of the Red Cross] notification and access. 

I look forward to your questions and I thank you very much for 

your sustained and serious attention to this important issue. 

The CHAIRMAN. Thank you very much. 

[The prepared statement of Mr. Chesney can be found in the Appendix on page 86.] 

The CHAIRMAN. Our committee vice chair needs to leave to go to 

another hearing so I am going to turn my time over to him at this 

time. Mr. Thornberry. 

Mr. THORNBERRY. Thank you, Mr. Chairman, and I appreciate 

each of you all being here today. There is a number of issues and 

ramifications at stake in what we are talking about, but I want to 

focus on the first and most basic issue, and that is whether Congress should affirm and update the Authorization for the Use of 

military Force that was passed in September 2001. 

And as Mr. Engel referenced in his testimony, there has been 

some criticism of the section in the House-passed bill, section 1034. 

Some people say well, the courts—you are just adopting the court 
11 

interpretation of the AUMF, so you really don’t need to do it, it 

doesn’t change anything, just let the courts continue to adapt and 

interpret the September 2001 authorization. 

A second criticism, which is kind of coming from the opposite 

way, is that, oh, this is a vast new expansion of power with no limits of time or geography. 

So I would appreciate each of you giving us your opinion on 

whether Congress should affirm and update the authorization for 

the use of military force and whether you think either of those 

criticisms have merit; do you think that it is okay for courts to interpret when the United States can use military force; and are you 

concerned about some vast expansion? 

And Professor Chesney, if I may, since somebody from the University of Texas Law School, welcome, I would ask you to go first. 

Mr. CHESNEY. Thank you, sir, that is a great question. And I 

have two main points I want to make in response to it. 

First, one of the issues that lurks in the background that we 

have not probably paid enough attention to is the fact that the existence of ongoing relatively conventional conflict in Afghanistan 

has made it relatively easy for everyone to agree that there is at 

least some combat going on somewhere that entitles us to detain 

somebody. It is entirely foreseeable that in the next year or two, 

for better or worse, that may not still be the case. And when that 

situation develops, when—that is, our situation in Afghanistan, 

similar to our current situation in Iraq, we are drawing down, we 

are leaving, we are no longer engaged in sustained combat operations, there will be an argument that will emerge that there is no 

longer authority under the original AUMF to detain anywhere. 

I think it would be a very smart move on the part of Congress 

to clarify that for purposes of our domestic law, we do not condition 

our detention authority with respect to Al Qaeda on the existence 

of combat operations in Afghanistan. And this is something that 

Congress could head off by making clear there is detention authority, and it is not linked in that way. 

A second issue is the question of whether it is even possible by 

statute to tamp down the debate over what is the scope of the authorization. Everybody agrees Al Qaeda counts, the Taliban counts. 

But when push comes to shove and people start getting down in 

the weeds, they often don’t really agree about what they think the 

boundaries of Al Qaeda actually are and whether it encompasses 

various affiliated groups. 

The question of the moment, as the chairman indicated in the 

opening remarks, AQAP, Al Qaeda in the Arabian Peninsula, may 

be the greatest threat we face. There is debate about the extent to 

which it is encompassed by the existing AUMF. The Administration takes the position, I believe, that AQAP is effectively part of 

Al Qaeda. And that may be the right interpretation. There is going 

to be debate about that. It is not clear if and when there is an 

AQAP detention that the courts necessarily will agree with that. It 

might be wise to eliminate that sort of uncertainty. But then you 

have even more difficult groups like Al Shabab where the ties, 

whatever they are, are relatively looser by a considerable amount 

as they are as between Al Qaeda and AQAP. 
12 

In that circumstance, a difficult question that I am not sure can 

be eliminated by statute will remain as to which groups are sufficiently associated with the AUMF-named groups to count. 

The current House-passed version of the NDAA confirms the Administration’s position that associated forces, co-belligerants, are 

encompassed but it doesn’t actually define that term. And I am not 

exactly sure how best to define that term. That may be some indeterminacy that is just built into this framework. 

Mr. THORNBERRY. Mr. Engel. 

Mr. ENGEL. Sure. Thank you. 

As I mentioned in my opening remarks, I think it is very important that Congress take this on. Essentially, the AUMF isn’t only 

about who we detain; it has been elaborated and interpreted by the 

courts in the context of the Guantanamo habeas litigation, but it 

also affects who we target. So it basically is a definition of who we 

are fighting in this war. And I think it is very important and appropriate in our constitutional structure that the political branches, 

and particularly Congress, take a lead role in making these determinations. 

When we talk about what are the courts saying, what are the 

courts doing, the courts are trying to figure out what Congress 

meant when it passed the AUMF almost 10 years ago now. And I 

think it is very important and appropriate for Congress to weigh 

in and to clarify basically by making clear it agrees with the views 

of the executive branch, because this goes really to the heart of 

who we are fighting and our national security. 

Mr. THORNBERRY. Thank you. Mr. Dell’Orto. 

Mr. DELL’ORTO. I would echo what Mr. Engel and Professor 

Chesney have said. I think one the keys here is that we need to 

be looking forward rather than rear-ward, and to the extent that 

we have demonstrations of how Al Qaeda and its branches and sequels are unfolding, we need to be prepared to address that. 

And I think that anything that would limit the scope of our activities to certainly Afghanistan, would put us in a position where 

we will not be ready for the emergence of the next branch or sequel. And in point of fact, it would acknowledge what we are doing 

today. We have these operations taking place in many parts of the 

world. And I think we need to maintain the authority to do so. 

I also agree that the courts should not be the place where there 

this is determined. I think the courts rightfully—they have been 

drawn into this somewhat reluctantly, I think—are doing their best 

to interpret what Congress has established by way of the law, and 

the more clarity we can establish through legislation I think the 

better off everyone will be. 

The CHAIRMAN. Judge. 

Mr. MUKASEY. I agree with the comments of the prior speakers. 

I would add only two things. First of all, this question of what it 

is that allows us to continue to detain has not been passed on by 

the courts as yet, and I think that Professor Chesney makes an important point in saying that we ought to head that off right now, 

because having that argument advanced could result in freeing an 

enormous number of people who should never see the light of day. 

Secondly, the notion of defining a list of organizations that are 

against us, and then checking whether somebody is or isn’t on the 
13 

list, and making targeting decisions on that basis and capture decisions on that basis, simply doesn’t work. Al Qaeda and those associated with them don’t care who is on the list, and this is not a motorcycle gang who wear jackets that are emblazoned with a particular label, and as soon as we kill off everybody who is wearing 

a jacket, we win. They didn’t care on 9/11 whether we had anybody 

on a list or not, and they are not going to care now. 

You need to look no further, I should say, than the Times Square 

bomber, Faisal Shahzad, when he was captured. It turned out he 

was associated with the Pakistani Taliban that wasn’t on the list, 

and there was actually a debate about whether we had authority 

to hold him. That shouldn’t happen. 

Anwar al-Awlaki was self-radicalized in the United States, is 

now in a leadership position in AQAP, again somebody who may 

not neatly fit a category, but somebody who is undeniably at war 

with this country. And we should be equally free to oppose the people who are at war with us. 

Mr. THORNBERRY. Thank you. 

The CHAIRMAN. Thank you. Ms. Bordallo. 

Ms. BORDALLO. Thank you, Mr. Chairman. 

And, Mr. Chesney, my first question is for you. You observed 

that a military commission trial, one, may not have proper jurisdiction or available charges to try someone like Warsame; and, two, 

may pose additional risk of revealing sensitive intelligence information because of all the additional evidence needed for military commissions’ prosecutors to establish jurisdiction over suspects like 

Warsame. Can you elaborate on these points? 

Mr. CHESNEY. Yes, ma’am. The point I was trying to get at is one 

that is not necessarily going to arise in many, or even most cases, 

that would be part of the civilian trial versus military commissions 

debate. But it does seem to be one that is raised here, and there 

has been intimations in media accounts that this was part of the 

internal analysis. 

In a military commission proceeding, there is a statutory personal jurisdiction requirement that is a bit complicated, and I won’t 

get down into the details of it. Suffice to say, that there does need 

to be certain showings made to ensure that this is a person within 

the scope of the armed conflict that is at issue here, someone engaged in hostilties, or an Al Qaeda member and so on and so forth. 

The factual predicates that are built into that showing are not 

identically repeated in a civilian setting where you are simply 

charging the person with having provided material support to one 

of these groups or having—I believe the charges in this case include bearing arms while doing so, and then instructing others in 

how to make explosives and receiving military-style training. 

In short, it is possible that in order to establish jurisdiction in 

a commission proceeding, the Government would need to reveal 

more than it would in a civilian court regarding the existence of 

a relationship between some or all Al Shabab members, possibly 

just some; Al Qaeda in the Arabian Peninsula, which seems to be 

the liaison relationship that Warsame was involved in; and the relationship of both of those two with Al Qaeda proper. That doesn’t 

necessarily need to be done, and in fact probably does not need to 

be done in a civilian trial. 
14 

Now that, as I mentioned in my testimony, is not the only consideration that matters here, but it is a substantial one, and one can 

readily imagine that the Intelligence Community might have preferred, all things being equal, not to be put in a position where it 

has to decide whether to come forward with the evidence that 

fleshes out the relationship amongst these groups. 

Ms. BORDALLO. Thank you. 

Mr. Mukasey, my next question is for you. You are critical of 

holding terrorism trials in Article III, because you claim that such 

trials would reveal sensitive national security information. However, what we know is that the Government has carefully crafted 

tools under the Classified Information Procedure Act, or CIPA, that 

allows sensitive national security information to be protected. As a 

result, one study after another of international terrorism cases 

have shown that in the hundreds of terrorism trials that have 

taken place in Article III courts, sensitive national security information has never been revealed when the Government uses the 

tools made available to it under CIPA. In fact CIPA works so well 

that the military commissions have modeled their classified information protection rules on CIPA. 

Given these facts, why do you continue to believe that classified 

information would be better protected in military commissions 

which have little experience handling sensitive information, than 

in Article III courts which have almost three decades of experience 

handling sensitive national security information? 

Mr. MUKASEY. I believe it, based on my own experience, and 

based on the trials of which I am aware. 

The case, the terrorism case that I tried, United States versus 

Abdel Rahman, et al., started out with the Government having to 

provide, as it does in all conspiracy cases, a list of unindicted coconspirators. That necessarily included all the people that the Government was aware were associated with the defendants in that 

case. It included a then-obscure man named Osama bin Laden. We 

found out later on that within 10 days of the service of that list, 

it was in the hands of Osama bin Laden in Khartoum, where he 

was then residing, and he was then able to determine not only that 

we knew about him, but who else within his organization we knew 

about, and to take appropriate action. And from every account he 

did. 

There are other instances of testimony coming out in criminal 

prosecutions that is later used as virtually a smorgasbord by terrorists. In addition, the need to keep agents from testifying to classified information is something that the Government feels, but obviously defense lawyers do not feel it, and shouldn’t feel it. That 

is not their job. And so they will push to the limit, with the result 

that Government agents will appear to be and have appeared to be 

evasive or restrictive in their testimony and in their responses in 

a way that colors criminal prosecutions that would not happen in 

a military commission. 

And as far as having to reveal means and methods in the military commission, I have to say that I am, frankly, mystified by Professor Chesney’s testimony on that point. If you think that a military commission presents difficulties in the Warsame case as com-
15 

pared to what is going to happen in a civilian court, I can give you 

two words of advice, ‘‘stay tuned.’’ 

Ms. BORDALLO. Thank you. Thank you, Mr. Chairman. I yield 

back. 

The CHAIRMAN. Thank you. Mr. Bartlett. 

Mr. BARTLETT. Thank you. Nearly 19 years ago, before I came to 

the Congress, I must confess that when I heard the term ‘‘military 

tribunal’’ or ‘‘military commission,’’ it conjured up images of a banana republic, a trial at midnight, and execution at dawn. If I had 

been asked to give an example of a kangaroo court, I probably 

would have said a military tribunal. 

Now, 19 years later, nearly 19 years later, having been on this 

committee, I have a very different view of our military commissions. 

But where we house our prisoners and where we try them is in 

a large sense a political decision. Not every citizen of the world has 

had the opportunity I have had to sit for nearly 19 years on this 

committee. So how does the average citizen of the world perceive 

military tribunals? In politics, of course, perception is reality. 

So what is the perception of the average citizen of the world 

about military tribunals? 

Mr. CHESNEY. May I? 

One of the most interesting things about the military commissions perception issue, which I completely agree is a terribly significant one, is that we are not doing the best we could to let the 

rest of the world know how legitimate and just the system, as you 

have just described it, is. 

Part of the problem is that it is very difficult for outside observers to know what is actually happening in the proceedings as they 

go on. The small number of reporters and interest groups that send 

personnel down there to monitor what is happening provide some 

outside access to what is happening, but not nearly as much access 

as could be to our interest. 

It would be very advisable for the Department of Defense to 

make it far more transparent what is happening there, including 

great expansion of the amount of closed-circuit coverage and availability, including here in the Washington area, for more than just 

a small number of reporters and journalists to monitor these proceedings. There will be a good story to tell, I believe, but we are 

not putting most people in a position to actually hear it. It is all 

getting filtered through a small number of observers who are, in 

many cases, very critical of the system. 

Mr. BARTLETT. Emphasizing the importance of perception, General Petraeus in a not private, but not really public, conversation 

indicated the enormous problems that Guantanamo Bay created for 

him in his area of responsibility in the military. 

Let me read something from what we passed in the Congress 

nearly 10 years ago now. ‘‘The President also has the authority to 

detain persons who were part of,’’ I have no idea how the President 

would know they were a part of something without a trial and a 

jury and a verdict, ‘‘or substantially supported Taliban or Al Qaeda 

forces or associated forces that are engaged in hostilities against 

the United States or its coalition partners.’’ 
16 

If I just take those first few words, absent the emergency that 

we were in at that time, wouldn’t you have thought that this was 

pretty patently unconstitutional to say that the President could, 

without any court action, without any trial, determine that a person were part of a substantially supported Taliban or Al Qaeda 

forces and therefore detain them indefinitely, without any counsel, 

without any opportunity to defend themselves? 

Mr. DELL’ORTO. Congressman Bartlett, let me at least take a 

stab at that. Again, if you premise the authority on laws of armed 

conflict and the law of war, then clearly, the President has the authority, as do the subordinate commanders, to make those determinations on the battlefield. And that is exactly what was done 

from day one. The detention authority stems from the authorities 

pursuant to the recognized international law of armed conflict 

and—— 

Mr. BARTLETT. But, sir, isn’t the battlefield here essentially anywhere and everywhere? 

Mr. DELL’ORTO. Well, I think in certain respects it is, Congressman, because the enemy has shown an ability to project its force 

from virtually anywhere to here, as contrasted to previous conflicts 

where there was essentially somewhat of a geographic limitation 

on the enemy’s positioning and the locations from which he projected his force. Certainly we got used to the notion of a geographical limit on some of that, on the conflict. 

Here, we have an enemy who moves about and may launch his 

attack from Afghanistan, may launch it from Pakistan, may launch 

it from Somalia, Yemen—and we have seen that. We have seen 

that with the Cole bombing and other instances where this enemy 

pops up and fights at a place of his choosing. 

And so I think that the authority to detain very reasonably can 

be applied to a variety of areas that are not necessarily well defined by a nation’s geographic boundaries. 

Mr. BARTLETT. Thank you. 

Mr. MUKASEY. If I could just add one point to the answer that 

has been given so far. First of all, the choice of the battlefield was 

not ours. That choice was made by the people who launched attacks against us. And we can, if we wish, limit the battlefield for 

our own purposes, but it is not going to limit it for theirs. 

Secondly as Mr. Dell’Orto pointed out, assault takes place in the 

context of the laws of war. The laws of war recognize that people 

who wear uniforms, follow a recognized chain of command, carry 

their arms openly, and don’t target civilians, are entitled to a certain level of treatment when they are captured, and they receive 

that level of treatment. But these people don’t do any of these 

things. And the old rule was that if such a person was captured, 

they could be treated as the books said, summarily; which generally meant stand up against this wall and we will be with you 

in a moment. Now we have come substantially beyond that. But we 

are by no means obligated to bend ourselves into pretzels to treat 

people in that situation the same way that we treat ordinary criminal defendants. Not at all. 

The CHAIRMAN. Did I hear you had an occasion, some special 

thing happen to you last week? 

Ms. SANCHEZ. That is correct, Mr. Chairman. 
17 

The CHAIRMAN. Did that change your name or anything? 

Ms. SANCHEZ. No, I am keeping the same name, the same name 

I have had since I was born. So thank you. Thank you very much, 

Mr. Chairman. 

The CHAIRMAN. Congratulations. 

Ms. SANCHEZ. I wanted to give Professor Chesney a chance to direct some comments to the whole issue of the Article III versus 

military commission question that was put forward. Would you like 

to do that? 

Mr. CHESNEY. I would like to address one point, because I think 

it may be that Attorney General Mukasey may have misunderstood 

my point earlier about the particular issue raised in the Warsame 

case. I wasn’t suggesting that civilian criminal trials have better 

capacities to protect sources and methods than military commissions do. It is at least equal, and perhaps the military commissions 

are slightly better at this because they have had a chance to codify 

things about CIPA that are generally done in practice now by the 

civilian courts, but aren’t in CIPA itself. 

But, rather, my point was that the actual substance of what 

needed to be proved would be different in that particular case. That 

is, Warsame, under the indictment that has been brought in the 

Southern District of New York, what the Government needs to 

prove in that instance doesn’t require in any way to try to prove 

anything about the relationships amongst these various Al Qaeda 

and Al Qaeda franchise entities, whereas in the military commission process, regardless of what charges were brought by virtue of 

the personal jurisdiction provisions, will require such proof. 

That is one way in which you could have a serious difference between the two systems. I don’t think that is a frequently recurring 

situation, but I think it arose in this instance and would arise in 

any Al Shabab, AQAP, or other non-core Al Qaeda, non-core 

Taliban-type case. 

Other issues that are worth keeping an eye on that this committee should be aware of include the difference in the substantive 

charges available in the following respect. There is ongoing litigation as to the legitimacy of charging material support and conspiracy in military commission proceedings. In particular, it is a 

quite open question, if not a doubtful question, as to whether the 

D.C. Circuit or the Supreme Court at the end the day ultimately 

will allow the commissions to charge material support and conspiracy for pre-2006 conduct. 

The current state of play is that an intermediate military court, 

the Court of Military Commissions review, has upheld the constitutionality or the legality of charging material support, but this is 

just the beginning of years of litigation that are still in our future. 

The D.C. Circuit will have the next crack at it, and beyond that 

if the Supreme Court grants cert, it will decide the question. 

There is some reason to believe, and I think a lot of people who 

have looked at this closely think it is at best a 50/50 call how the 

Supreme Court ultimately will come down on this. If they come 

down negatively on this as to a lot of the earlier cases, not goingforward cases, but the existing legacy cases, this will take away a 

pretty important tool in the tool set for prosecuting in a commis-
18 

sion setting. This doesn’t affect all the cases; it affects some of 

them. 

Ms. SANCHEZ. Okay. Well, first of all, I think that even though 

we have had some people since directly after 2011, after we declared—or the President declared the Global War on Terror, and 

we have people still detained, I have a hard time believing that 

most of those people that we have left are actually even going to 

come forward into some sort of a process, if you will. 

But I have been one of the few Democrats, I think, on this committee that has advocated for keeping Guantanamo Bay open and 

for military commissions. I am one of the few people, I think I was 

the first one to drop a bill, maybe about 2 or 3 years before the 

Hamdan case ever came down, and required this committee to at 

that point act. But I wouldn’t preclude the fact that I think that 

we should keep both systems open and available to doing this. 

My question, and the reason I think commissions is a great place 

to try a lot of it is because of several issues, including fog of war, 

evidentiary chain requirements, Miranda rights, if you will, a 

whole host of things that are introduced once one takes a look at 

the Federal system, and I think don’t work well within some of the 

issues that go on with respect to the types of people and where we 

pick them up and how we pick them up. 

And I guess the two questions that I really have that I am hoping you all can sort of enlighten me on is what difference has that 

made with the Court’s ruling that GTMO is now a special place 

and inures with it some special rights to the people that we have 

had held there, as opposed to before. 

And the second issue is, what do you think—understanding that 

I think most of these things would be best held in the military system, where do you think are some of those situations that would 

be better placed within our Federal system? 

Does anybody want to take a crack at those two questions? 

Mr. ENGEL. With respect to your first question, in terms of the 

impact of Boumediene and the Supreme Court’s holding that the 

constitutional right of habeas corpus applies to Guantanamo Bay, 

that is some issue that now almost 3 years after Boumediene the 

courts are really still working it out. The Supreme Court held that 

it had jurisdiction, you know, that the Federal courts had jurisdiction, but it did not elucidate and consciously reserved the question 

of what other rights would apply to Guantanamo Bay. And that is 

something that the Federal district courts have, in developing habeas procedures, have been sort of all over the map, and they have 

gradually been corralled by a number of D.C. circuit decisions 

which has provided some content at least to the substantive standard for habeas. 

Now, none of that answers fully what would apply in a military 

commission process and the like. Those are questions that the military commission courts have been working out, and they have 

taken something of a case-by-case basis where they look at whether 

the procedural rights at issue are fundamental. And they have generally held that the processes that this Congress has provided in 

the Military Commissions Act in 2006 and 2009 are sufficient, you 

know, with some glosses here and there. But these are issues that 

are still working their ways out in the court. 
19 

What is clear, of course, is that if individuals were in the United 

States, they would have a full panoply of rights. And while that 

may permit commissions to go forward in the United States, it 

would raise, you know, much more severe—— 

Ms. SANCHEZ. Obviously. And that is one of the reasons why I 

think it is best to keep them in the military commissions if we can. 

Do you think it would be—that there would be a place for this 

Congress to delineate, not wait for the courts to sort of apply what 

those rights might be? 

Mr. ENGEL. Well, I think that this Congress really has done so 

with the Military Commissions Act in 2006, 2009. Mr. Bartlett 

mentioned earlier about his image of military commissions and 

military courts. I think this Congress has provided the most developed procedures, the greatest amount of due process I think that 

we have ever seen in any kind of military commission system. 

And so, you know, I would submit that Congress has weighed in 

and has provided appropriate protections under any constitutional 

standard. But, certainly, if there is tinkering to be done, those are 

questions for this body to consider. 

Ms. SANCHEZ. Thank you, Mr. Chairman. I realize that my time 

is done, and I hope that I can submit that other question to the 

record for the gentleman before us to try to answer. Thank you. 

The CHAIRMAN. Thank you. 

Mr. Wittman. 

Mr. WITTMAN. Thank you, Mr. Chairman. 

I would like to thank the panelists for joining us today. 

Judge Mukasey, it seems like the Administration’s policy for 

evaluating detainees for transfer seems to have a little inconsistency there. And I want to ask a comparison, to look at the policy 

that is used for the transport-release of someone like Mr. Warsame 

in the case where he was detained on a ship versus other evaluations such as for GTMO. 

And if you could give me your opinion on where you believe the 

differences are there. And is there a reason for the difference from 

a legal standpoint? And in electing to release a detainee from the 

ship, should the potential for reengagement be considered or the 

possibility of reengagement be mitigated in consideration of both of 

those, I would say, divergences in policy with relation to detainees? 

Mr. MUKASEY. Well, let me answer your last question first. The 

possibility of reengagement always has to be considered. The whole 

purpose of capture in a conventional war—and it would be only underlined in an engagement like we are in with these folks—is to 

immobilize somebody who is dangerous and prevent them from returning to the fight. A catch-and-release program is the last thing 

in the world that you want. 

So far as Warsame is concerned, the sense I have is that that 

was something of a—obviously, I don’t have a window into the decisionmaking process in the current Administration. But the sense I 

have is that that was somewhat of an innovation and of an improvisation, in some measure in response to the legislation that barred 

the transfer of detainees from Guantanamo to the United States. 

They didn’t put him in Guantanamo. They held him on a ship, debriefed him for some period of time, and then brought in a clean 
20 

team to give him Miranda warnings and then bring him to the 

United States. 

I should add that, as it happens, paradoxically, holding somebody 

on a ship is itself arguably a violation of one section of the Geneva 

Accords. Now, whether that is a section that applies to people like 

this at all, I would argue that it doesn’t, but it just shows you how 

problematic that whole process is. And we can’t continue to make 

these decisions ad hoc. We need to have a systematic way of assuring, principally, our safety; secondly, our intelligence-gathering capacity. And everything else, in my view, follows from that. 

Mr. WITTMAN. Thank you. 

I want to follow up on your comment about our intelligence-gathering capacity. With what has taken place with Mr. Warsame, are 

we limiting our military and intelligence operatives’ options with 

detention of known terrorists by pursuing this particular policy? 

And with leadership in SOCOM [Southern Command] and the CIA 

[Central Intelligence Agency], are they going to be forced to let detainees go if they aren’t able to get that information, especially 

with this particular tenet that they are pursuing with detainee policy? 

Mr. MUKASEY. Well, I think the question of letting detainees go 

and of gathering intelligence are, in a sense, separate. 

Regrettably, in my view, the CIA program was abandoned entirely, and, instead, what we have told the rest of the world is that 

the Army Field Manual now sets the limit for any interrogation by 

any U.S. Government employee. The Army Field Manual has been 

used as a training manual by terrorists for years. And I think what 

we need is a classified interrogation program to be run by people 

who are trained in the running of it, so that people we capture 

don’t know precisely what they have to expect. And we can get a 

whole lot of intelligence a lot easier that way. 

There are people who were captured by the CIA who didn’t go 

into their program at all, who, upon capture, said, ‘‘I know who you 

guys are, I don’t want any part of that, and I am perfectly willing 

to cooperate,’’ and did. But if you limit yourself in that fashion, 

then you are really tying your own hands. 

Mr. WITTMAN. Let me ask one final question. Does a coherent detention policy include subordinate policies on detainee transfer and 

release? And, if so, how would you believe transfer-and-release policies minimize the possibility of reengagement? 

Mr. MUKASEY. I think if you have a place to take people, evaluate them in a calm setting, that that is optimal. You are going to 

find at some point whether—I mean, you may very well find that 

somebody who was dangerous when he was apprehended has become, for objective reasons having nothing to do with his particular 

mindset, less dangerous because his friends are gone and is somebody you can release, or you may find another country willing to 

take him. But you certainly can’t do that with the wind blowing in 

your face under a deadline that says, we are going to find this out 

in 2 months or else we are going to let him go. 

Mr. WITTMAN. Very good. Thanks, Judge Mukasey. 

Mr. Chairman, I yield back. 

Mr. BARTLETT. [Presiding.] Thank you. 

Mr. Smith. 
21 

Mr. SMITH. Thank you, Mr. Chairman. 

I think one of the things that we should acknowledge, looking at 

this, is, no matter which way you go, there are uncertainties. And 

I think one of the things that both sides have done is, well, gosh, 

if we did your plan, then we wouldn’t know what was going to happen in this instance. I mean, we are in uncharted territory. I mean, 

just talking about this, as Mr. Engel said, you know, it is not clear 

what rights exist at Guantanamo. They are being constantly interpreted by the courts, and that could pop up and create a problem. 

You know, military commissions are a relatively new thing. I 

think we have only prosecuted—help me out here—we have only 

prosecuted, like, one or two folks under military commissions at 

this point, and those were both guilty pleas, I believe. We haven’t 

gone through a full trial with a military commission. 

Mr. ENGEL. We have gone a little bit above that. I think there 

may be four or five and couple of trials—— 

Mr. SMITH. Okay. 

Mr. ENGEL [continuing]. But your point is well-taken. 

Mr. SMITH. It is still being interpreted. So no matter which way 

we go here, because of the, you know, unique nature that I think 

all witnesses testified to of the fact that this is an enemy that the 

law, frankly, didn’t contemplate, and certainly the law of war, so 

we have to improvise and go forward, so I think we need to keep 

that in mind as we look at the options. 

You know, keeping all the options on the table, I think one of the 

biggest restrictions right now that we haven’t talked that much 

about—and, Mr. Mukasey, if you could comment on this—the restrictions that have been placed on people once they are in Guantanamo. And this is because Congress opposed the closing of Guantanamo and was looking for ways to make sure that the President 

couldn’t do that. And that is perfectly appropriate, from a legislative standpoint. 

But in placing severe restrictions on when anyone from Guantanamo can be transferred back to a home country and placing an 

absolute bar on those inmates ever being transferred to the U.S. 

for trial, if an inmate is transferred to Guantanamo at this point, 

the President’s hands are tied. And that is a big factor in their reluctance to send someone to Guantanamo. 

Now, the Administration has said—and Admiral McRaven does 

not necessarily speak for the entire Administration—has said that 

they have not taken it off the table, and, in certain circumstances, 

in high-profile cases, it is something that they would consider 

doing. But the reason for their reluctance is because of the fact 

that literally you had the situation where, to throw the cliche ́ out 

there, Guantanamo is now the Hotel California: Check in; you can’t 

check out. 

And this, by the way—keep in mind, I would hope that during 

the course of this process, if we are effectively doing our job of erring on the side of caution, I would hope that at some point we will 

pick somebody up who it turns out is not, in fact, a threat, that 

we were wrong. This happens. I would hope it would happen or you 

are not being thorough enough. 

But in the current situation, if you do that, you pick someone up 

and you send them to Guantanamo, even if you find out, you know 
22 

what, it is the wrong guy, got the wrong guy, not the guy we 

thought it was, there is nothing that we can do but keep him there, 

under the current law. So shouldn’t we, at a minimum, if we are 

going to keep options on the table—military commission, whatever—stop that severe restriction on what can happen? 

And I will throw one other point out before I quit. It has also 

been interpreted possibly that even if you go there, you know, you 

do a military commission trial, let’s say they sentence him to 10 

years. You know, the argument is that even after the 10 years, 

when the sentence is up on Guantanamo, you are still restricted in 

being able to transfer that person out. So you have to go to indefinite detention anyway, even after they served their sentence, because the law that we have passed has said, you can’t transfer this 

person. 

Isn’t that a problem, and shouldn’t we sort of look at some way 

to put some flexibility in there? 

Mr. MUKASEY. Well, certainly, if that is the effect of the law, 

then there ought to be flexibility. I mean, you are not going to get 

me to say that I am in favor of that kind of rigidity. I think tying 

our hands is the last thing we want to do in this struggle. 

But we have to understand that the law restricting their transfer 

to the United States was passed in response to a plan to bring 

Khalid Sheikh Mohammed and a whole bunch of other people to a 

courtroom in lower Manhattan and the hubbub and turmoil that 

that, and I think deservedly, created. 

But I agree with you that when you legislate in response to 

events like that, to action-driving events, that it doesn’t always create the most rational policy in the world and that flexibility is very 

much called for. 

And as far as the issue of indefinite detention, we faced that with 

the trial of Osama bin Laden’s chauffeur, who, in essence, got time 

served. And there were people who favored continuing to detain 

him after his sentence was served because he continued to be a 

threat. But it was felt that we couldn’t do that, and he was nonetheless released. 

So, again, we need a coherent policy, we need a flexible policy. 

And when you have extreme actions that then become the subject 

of legislation, that creates the worst possible atmosphere in which 

to make these decisions. 

Mr. SMITH. And I agree with that. And, certainly, I think, you 

know, the decision on Khalid Sheikh Mohammed and the way the 

Administration did not come out quickly and clearly and put a policy—I mean, we had them going through a military commission 

process that was stopped. That certainly did not help this process 

whatsoever. 

I want to ask one question on the civilian Article III court side. 

And we have cited this statistic repeatedly, the number of terrorists we have tried, you know, and going back to 1993 bombing, 

Ramzi Yousef, you know, captured oversees, brought back here, 

tried, put in jail. That seemed to work. He has been in prison for 

quite a while here in the U.S., went through the court system. 

I mean, I would submit that Al Qaeda and affiliated groups are 

targeting us anywhere and everywhere they possibly can, whether 

we are holding people here or not. 
23 

Why isn’t that an example of why you need to have the option 

on the table for civilian trials for people like that? 

Mr. MUKASEY. Two things. 

First of all, I was in the courthouse where that case was tried 

and where other cases were tried. That case has to be tried by jurors who have to be kept anonymous. I had an anonymous jury in 

the terrorism case that I tried with the ‘‘Blind Sheik.’’ We took 

great pains to keep those people’s identity from becoming known. 

The day they delivered their verdict, two of them found reporters 

sitting at their doorsteps and were absolutely terrified. And there 

is no reason to believe that that kind of confidentiality can be 

maintained. 

These people don’t come—the jurors, that is—don’t come from 

Mars. They all have friends, they all have working associates, they 

all have people who know that they were called for jury duty, and 

they could, themselves, come to the courtroom. 

Mr. SMITH. We do do that in mob trials. I mean, that is a huge 

risk, granted, but it is something that we have done. And, I mean, 

there are many, many other types of people where you are in jeopardy, and we have set up a system to protect them. 

Mr. MUKASEY. You can’t guarantee it. If the interest level is high 

enough, that is going to be breached. It was breached in my case, 

and I will tell you that the steps taken were far in excess of what 

is taken in mob cases. They were taken by marshals in the morning and in the afternoon, picked up at pick-up points and dropped 

off at drop-off points, to make sure that people didn’t discover who 

they were. But everybody has one good friend, and they all have 

relatives and working associates and so on, some of whom knew 

they were on that jury. So that is one issue. 

The second issue is, it is a colossal expense. We had to bring 

marshals in from districts all over the United States to protect the 

courthouse because the U.S. Marshal Service in the Southern District of New York and the Eastern District of New York weren’t 

sufficient to provide that kind of protection. It was enormously 

costly, it was enormously disruptive. 

The cost of protecting two judges—I was one of them. I had a security detail for 11 years. 

Mr. SMITH. And I think that—— 

Mr. MUKASEY. And that is not—the point is not that it was difficult. Of course it was difficult. 

Mr. SMITH. It is expensive. 

Mr. MUKASEY. It was very expensive. 

Mr. SMITH. And I think, you know, one of the things we can 

agree on, as I said, about the Khalid Sheikh Mohammed case, at 

a certain level of high profile, you know, you do create that problem. But we capture terrorists on all kinds of levels, down to a guy 

like Warsame. They are not all going to be on the Ramzi Yousef/ 

Khalid Sheikh Mohammed level. So, surely, there are some examples where this can work. 

Mr. MUKASEY. Of course there are. 

Mr. SMITH. And that is all we are saying—— 

Mr. MUKASEY. Of course there are. 

Mr. SMITH [continuing]. Is to keep all those options on the table. 
24 

Mr. MUKASEY. I mean, we had a trial of the millennium bomber 

up in Washington, the fellow who was trying to, you know, bring 

explosives across the border, successfully tried in a district court. 

All I am saying is that we need to do this in military commissions, as well. And to compare numbers I think is very misleading. 

In essence, as was pointed out before, the military commission system has been bypassed. I mean, this is akin to telling somebody, 

you know, ‘‘I just poured glue in your watch, and it doesn’t work, 

so you might as well throw it away.’’ We need to let the system 

work. 

And there is a state-of-the-art courtroom down there. I have visited it. 

Mr. SMITH. As have I. 

Mr. MUKASEY. And it is well able to handle these trials, if only 

we let them go forward. 

Mr. SMITH. And let me just say to be perfectly clear, I mean, my 

position and I believe the Administration’s position is, all three of 

these options need be on the table. The Administration and no 

Democrat that I am aware of on this committee is arguing that we 

should not have military commissions. We should. Or even, for that 

matter, indefinite detention. We have to have indefinite detention. 

The concern is, the restrictions that have been placed legislatively have taken the Article III courts off the table and tied the 

Administration in knots, and I think we need to resolve that. And 

one of the key issues that we have to resolve as we are trying to 

figure out how to get through this is, it can’t be the case that if 

you go to Guantanamo it is absolutely impossible to leave. We have 

to figure out some way to solve that. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. [Presiding.] Thank you. 

Mr. West. 

Mr. WEST. Thank you, Mr. Chairman and Mr. Ranking Member. 

Thank you for the panel for being here. 

And lots of academic discussion here, and what I want to do is 

maybe try to bring it to the commonsense level of a combat soldier. 

You know, when you deploy me outside the United States of 

America and you give me ammunition and you give me imminent 

danger pay, that means I am going into a combat zone. And in a 

combat zone, you have two types of individuals. The individual that 

is in a uniform, shooting at you and planning against you, that is 

an enemy combatant. The individual that is not wearing a uniform, 

that is not a member of any type of state, is an illegal enemy combatant. I think that the problem here we have to come to grips on, 

if we are in a war, to start to understand that there are illegal 

enemy combatants. 

Now, the problem I see with this is, you know, back during 

World War II we captured Nazi saboteurs off the coast of, I believe, 

New York and New Jersey, military tribunal, and they were summarily executed. And I am not saying we go to that length, but we 

already have that system that was in place. 

So when I look at what just recently happened with the gentleman who was accused of planning the African embassy bombings 

and, all of the sudden, because of a technicality in civilian courts, 

he is not convicted for the murders of those individuals, my ques-
25 

tion to you is, if we continue on in this Warsame case or if we look 

at the Somali pirates that we now have in Norfolk, Virginia, who 

killed the four Americans on their U.S.-flag yacht, or, as well, with 

the underwear bomber, if we do not start seeing them as illegal 

enemy combatants, if we start to see them as common criminals 

and offering them constitutional rights and bringing them into civilian courts, what would be the ramifications long-term? And has 

this Africa embassy bombing already set a precedent by which 

things can be different as we go forth in this Warsame case? 

Mr. CHESNEY. These are really great questions, sir. 

Let me first address the point about—— 

Mr. WEST. Well, thank you. I stayed up last night to write them. 

Mr. CHESNEY. I stayed up last night thinking about what I might 

say in response. 

You mentioned the Ghailani prosecution. This is the East African 

bombing defendant who was transferred out of Guantanamo into 

the Southern District of New York, where the judge I used to clerk 

for, Lewis Kaplan, your former colleague, presided. 

And as everyone, I think, knows and recalls, there was evidence 

that was suppressed. And the key evidence that was suppressed 

was the testimony of a witness who was discovered—his identity 

was discovered from the interrogation of Ghailani himself. The 

Government didn’t dispute that the interrogation that produced his 

name was coercive. And it raised one of these, what we call, you 

know, the fruit-of-the-poisonous-tree situations: Should the testimony of the other guy be suppressed because you learned about 

him in the wrong way? 

It is often suggested that this particular problem, the exclusion 

of this guy’s testimony, wouldn’t have happened if only we had 

tried the same case in a military commission. But I don’t think we 

can make that assumption. In fact, I think that it is more likely 

than not—of course, you never know. When you change decisionmakers, you can get individual differences. But the applicable rules 

may well have been quite the same. 

One of the things about the current iteration of the military commissions, with the Military Commissions Act of 2009’s voluntariness requirements, is that the rules about voluntary testimony and 

what is going to be admissible, in terms of interrogation statements, have become very close to being identical to what goes on 

in Federal criminal courts, civilian criminal courts. It is often assumed that is not the case, but I actually think they are quite similar. 

There is an exception in the Military Commissions Act for statements that might not have been voluntary but that were obtained 

at the point of capture by a unit, such as one that you would have 

been a part of, that captures someone and immediately conducts 

field interrogation to get tactical and operational intelligence. That 

can come in, potentially, under the Military Commissions Act, even 

if not voluntary. 

But once you are away from the moment of capture, once you 

have gone back into the detention system, and certainly once you 

have gone to Guantanamo and you are talking about interrogation, 

it all has to be voluntary under the statute, even if you are in a 

military commission. 
26 

Mr. ENGEL. And maybe if I may just add one additional point, 

we have been talking about this a lot as a practical question, about 

what procedures apply in the commissions, what procedures apply 

in the Article III courts. I do think the procedures in the commissions are more flexible. I think that the error, or the application 

of Article III standards that happened in the Ghailani case would 

be less likely to happen in the commission process. But I am not 

sure that that is the point. 

I think the point is what you spoke about when you talked about 

sending people into battle and who we are fighting and picking up 

there. These are not common criminals. These are military enemies. We are detaining them by our military. And consistent with 

really every one of our past wartime experiences, we are both entitled and it is appropriate to treat them through a military commission process. And that process may be more fair and more robust 

than we have ever seen before, but it is still a military process. 

And we try them before the commissions because they are the enemies of the country and they are not common criminals, not simply because we think in a particular case there are a couple of procedures that would make the prosecution more efficient. 

The CHAIRMAN. Thank you. 

Mr. WEST. Thank you. I yield back. 

The CHAIRMAN. Ms. Hanabusa. 

Ms. HANABUSA. Thank you, Mr. Chair. 

Mr. Engel, there is a statement in your testimony that I think 

kind of gets to the essence of all of this. You said, ‘‘The traditional 

laws of war are premised upon a conventional international armed 

conflict or, in some cases, civil wars. The established legal framework provides clear answers to who may be detained, how they 

must be treated, and where they should be prosecuted. None of 

these questions is self-evident when it comes to the war on terror.’’ 

So can you tell me why it is so clear in the other situation and 

why it is so muddy in the situation of the war on terror? 

Mr. ENGEL. Sure. Well, I mean, largely, when you are talking 

about the conventional laws of war, you are talking about the Geneva Conventions, you know, by and large, and the common law 

that has been worked out around that. And the Geneva Conventions really do provide specific answers as to how we treat prisoners of war, you know, those legitimate combatants who meet 

these standards. And it talks about where they can be kept. It 

talks about where they may be prosecuted, if they are to be prosecuted for war crimes and the like. 

And none of these questions really exist or apply when we are 

talking about individuals who are not prisoners of war and individuals who are not covered by international armed conflict. We have 

seen some clarity, particularly with the Supreme Court’s Hamdan 

decision and the way in which it interpreted Common Article III, 

that has provided some baseline treatment standards and the like. 

But many of these other issues are issues that have been worked 

out by the executive branch with Congress, with the courts. And 

the answers, even now, almost 10 years later, you know, are not 

perfectly clear. 
27 

Ms. HANABUSA. So if this war on terror, or however variant that 

we may continue to call it—we are going to continue in this murky 

area? 

Mr. ENGEL. Well, look, I think we have more clarity now about 

these standards, a lot more clarity now, than we had, you know, 

on 9/11. I think the United States has taken the lead, I think Congress has taken the lead in elucidating, you know, the governing 

law. 

Because when we talk about international law, when we talk 

about the laws of war, apart from things like the Geneva Conventions, these answers don’t exist in the sky. The written bodies of— 

there is no criminal code for the law of war as such, but it is 

worked out from time to time. And I think we do have some answers, but, as we have seen from this discussion and we have seen 

from the reaction to section 1034, there are still questions that are 

being worked out here. 

Ms. HANABUSA. But it is a unilateral act versus something that 

you would see that nations would get together and sort of agree to 

some kind of basic premise. And that is what I see as the problem. 

I would like to speak Mr.—is it ‘‘Mukasey’’? Is that correct? 

Mr. MUKASEY. Yes, it is. Thank you. 

Ms. HANABUSA. Okay. And this is regarding the—I know I am 

going to not pronounce it correctly—is it the Boumediene—— 

Mr. MUKASEY. Boumediene. 

Ms. HANABUSA [continuing]. Boumediene decision. And I think 

you were Attorney General when that came out in 2008. 

One of the things that I found in the decision that struck me and 

wanted to discuss with you is the fact that, toward the end, the Supreme Court says that because conflicts have been limited in duration, we have had the ability to have the outer boundaries of war 

powers undefined, basically the Presidential right. And I think the 

discussion was of separation of the powers. 

What I am curious about in reading part of the testimony that 

we have had is, given that situation and given the thing that the 

Boumediene decision seemed to have also looked at the geographic 

area, of what is the status of Guantanamo, for example, and they 

talked about the insular cases—I am from Hawaii, so of course the 

insular cases development is very critical to me. 

So what I would like to know is, at what point are we going to 

see this clarity? Because at some point we, as Congress, cannot legislate to the point where the Constitution and the Supreme Court 

comes back and says, ‘‘Well, you can kind of do it for now, but at 

some point, we are going to address this issue.’’ And I would like 

to know how you thought about that. 

Mr. MUKASEY. Well, I think that you have to legislate in the here 

and now, and you have to legislate with what we have. 

So far as past conflicts being of limited duration, I should point 

out that that is only in retrospect. The Germans didn’t march into 

Poland in 1939 scattering little pieces of paper saying, ‘‘Don’t 

worry, this is all going to be over by 1945 and the Fuhrer is going 

to blow his brains out.’’ That is something that we achieved, and 

it was limited in duration only in retrospect. 

This conflict, I am hoping, will have an end. How are we going 

to know? We will know. And it is not something for us to worry 
28 

about while it is ongoing. What we have to worry about while it 

is ongoing is how we behave and how we treat our adversaries. 

And the fact that this committee is holding hearings like this and 

passing the kind of law that it has passed on to the House and that 

passed the House is wonderful testimony that we are a nation that 

does that and that worries about those things. 

But I don’t think we can sit here and worry about the duration 

of the conflict and paralyze ourselves from acting. We act with the 

facts as we know them. If the facts change, you can always change 

a statute. But inaction is going to get us in a place that we don’t 

want to be. 

Ms. HANABUSA. Thank you. 

Thank you, Mr. Chair. My time has expired. 

The CHAIRMAN. Thank you. 

Mr. Runyan. 

Mr. RUNYAN. Thank you, Mr. Chairman. 

Judge Mukasey, in the chairman’s opening statement, he referenced the Administration’s overwhelming preference for prosecuting terrorists in Federal court. What are the downsides to having the two-track system whereas cases that are seen feasible are 

tried in a Federal court and the weaker ones are tried in the commission? 

Mr. MUKASEY. I think that sends the wrong message for so many 

reasons it is hard to know where to begin. 

First, it suggests that military commissions are some sort of lesser form of justice. They are not. They are, in point of fact, a robust, 

able system. 

Secondly, we shouldn’t be making principled decisions based on 

the feasibility of a case or the infeasibility of a case. We should be 

making those decisions based on an intelligence assessment of 

where they belong, a principled assessment of where they belong. 

And, finally, even if you try to make an assessment in advance 

of what the feasibility of a case is, I think the Ghailani case is a 

perfect example of the fact that you don’t always guess right. 

So, for all of those reasons, I think we have to do this on some 

basis other than projected feasibility. 

Mr. RUNYAN. Thank you. 

And this is really for all of you, if you want to take a quick stab 

at it. You know, this past month, President Obama issued an Executive order establishing a process to periodically review continued 

detention of each detainee at GTMO. And are any of you concerned 

about such a process being an adversarial system on top of all the 

habeas litigation? 

Mr. DELL’ORTO. Congressman Runyan, let me take a stab at 

that. 

First, let me also add one point to what Judge Mukasey indicated 

with respect to military commissions. I think one thing that we 

have to failed to account for with respect to a distinction between 

military commissions and the civilian courts is, ultimately—and I 

think this goes to Congressman West’s point—ultimately, the people who are in the best position to judge the guilt or innocence of 

individuals who are accused of committing war crimes are the soldiers. They have been on the battlefield; they understand what all 

of this is about. And I think there lies a very significant aspect of 
29 

military commissions that you don’t necessarily have in a civilian 

court. 

Going to your question regarding the review of detention at 

Guantanamo, having lived through the Combatant Status Review 

Tribunal process, Administrative Review Board process, we are acknowledging somehow that things are different here than they 

have traditionally been on the battlefield. And we did so with both 

the CSRTs [Combatant Status Review Tribunal] and the ARBs 

[Administrative Review Board]. We provided what I believed was 

a system that had a certain process as part of it that worked. 

To now take this and turn it into an adversarial proceeding, 

where you have counsel for a detainee and no judge there to adjudicate what is being done in that proceeding, I think invites a very, 

very difficult situation for those commanders who are charged with 

responsibilities for detention. You are incorporating into a noncriminal court-type situation and administrative determination a 

whole set of legal aspects that I think are wholly uncalled for in 

that environment. 

Mr. RUNYAN. Anyone else? 

Mr. CHESNEY. I would like to follow up on that a little bit. I first 

would emphasize how important periodic review of some kind, 

whether it is by Executive order or by the statutory mechanism in 

the Defense Authorization Act, how important it is, precisely because of the open-ended timeline concern that Representative 

Hanabusa raised a moment ago. This is how you respond to the indefiniteness of war against something like Al Qaeda. 

I have some sympathy with Mr. Dell’Orto’s point about the risk 

of turning this into sort of a second round of habeas, as well. 

I do want to respond and disagree, to some extent, with the point 

he made, however, about the relative expertise of military officers 

versus civilian jurors as fact-finders. And it is a limited disagreement. 

I am sure that is actually quite correct as to, for example, the 

Omar Khadr situation, where you have a firefight and there is an 

alleged war crime involved with the firefight involving soldiers, and 

it is the sort of thing soldiers certainly know better than civilian 

jurors. But one of the things that is funny about the current circumstance is, a lot of times what we are going to charge in commissions as material support or the sort of things, whatever it was 

that this Warsame fellow was up to, if it was tried in a commission, these will be things that don’t look like what soldiers train 

and do in combat situations, that are more like what the intelligence community deals with. And we shouldn’t assume that military officers have special expertise. 

That said, I will note that military officers are quite possibly 

going to be less likely to be overimpressed by allegations that 

someone is linked to Al Qaeda and so on and so forth. And I think 

you see that in the Hamdan military commission case, where they 

acquitted on some counts, convicted on a lesser count, and then 

gave a time-served sentence. 

Mr. RUNYAN. Thank you. 

Chairman, I yield back. 

The CHAIRMAN. Thank you. 

Mr. Langevin. 
30 

Mr. LANGEVIN. Thank you, Mr. Chairman. 

I want to thank the panel for this discussion today. Your presence is obviously very enlightening. And this is clearly an extremely contentious issue that I think that we need to address as 

a nation if we have any hope of moving forward, with our history 

involved in Guantanamo Bay and ultimately, of course, the AUMF 

that was issued after 9/11. 

I would like to ask the panel specifically their thoughts about the 

potential effects of closing off completely the ability to try any terrorist in Article III courts. And, second, would it be possible to have 

Article III courts at Guantanamo? 

Mr. MUKASEY. Well, the short answer to your second question is 

‘‘no.’’ 

As far as closing off Article III courts, I don’t think any of us, 

even the most skeptical—and I probably fit into that category; 

maybe Mr. Engel is slightly more skeptical of Article III courts— 

I don’t think any of us says that you close off Article III courts. 

I think what we are talking about here really is where you set 

the default. And there are those of us who believe that the default 

should be set at military commissions for reasons that we have explained and other folks who think it should be set at Article III 

courts. 

But I don’t think anybody favors closing off Article III courts. 

They are very a important tool, and, as a former card-carrying Federal judge, I have great confidence in them. 

Mr. ENGEL. And, actually, if I may add, sometimes there is confusion when we talk about terrorism prosecutions and Article III 

courts and military commissions, that sometimes we are mixing apples and oranges. 

I mean, there is no question that the Article III courts have prosecuted—you know, have overseen the prosecution of a wide variety 

of terrorism cases since 9/11 and before, that were folks who were 

picked up by the FBI [Federal Bureau of Investigation], using traditional law enforcement mechanisms in this country. And I don’t 

think there is any disagreement, by and large, that the vast majority, if not nearly all, of those cases are appropriate and should go 

forward in Article III courts, at least as the default rule. 

By contrast, when we talk about folks who were picked up in 

wartime circumstances, either by military services or by our intelligence services, often picked up by foreign governments who then 

turn them over to the United States in connection with this ongoing armed conflict, I think it is there—and these are basically the 

folks at GTMO and folks who are to be picked up in the future— 

where the military commission system would seem to be most appropriate to those circumstances and, you know, something as the 

default rule under those circumstances. 

Mr. CHESNEY. I think it is very interesting that we are actually 

seeing a lot of consensus on—I think all of us came into this largely 

agreeing about the need to have all three of these tools, the legitimacy of all these tools, and a fair amount of consensus emerging 

about the need for some degree of flexibility. And I would associate 

myself with Judge Mukasey’s remarks about the question really 

being, where is the default set? 
31 

I do want to underline that, in the circumstance, as Mr. Engel 

described it, of the overseas capture, which is really what this is 

about, much more so than within the United States, there is a fact 

pattern that can and has arisen from time to time that, if nothing 

else, shows you that you do have to have some flexibility to be able 

to prosecute in a civilian court. And that is when it is a foreign government that has custody of an individual and they won’t give him 

to us unless we are going to pursue a civilian criminal prosecution. 

That is, they won’t transfer him into our custody were we to pursue 

a military commission alternative. 

There was a fellow who was, I believe, in the Netherlands. His 

name has escaped me, but I believe it was Delaema, if I am recalling correctly, and he was in Dutch custody. He was involved in the 

insurgency in Iraq. They would not possibly have given him to us 

if we were going to put him before a military commission. And I 

believe there was actually a diplomatic agreement that we would 

not actually put him in a military commission or military detention. If we wanted him, it was Article III or nothing. 

Examples like that hopefully will be rare, but when they arise, 

we need to make sure that the President has the ability to say, 

yeah, we will take him, even though it is not a preferred option. 

Mr. LANGEVIN. Thank you. 

Mr. Chesney, let me ask a different topic, in response to a question or a comment from Judge Mukasey, what are your thoughts 

about shipboard detention? 

Mr. CHESNEY. So, shipboard detention, as soon as you raise it, 

I think all of us think of the British hulks lying in the East River 

in the American Revolution, the horrors that the American soldiers 

captured there went through. And others may think of the Japanese so-called ‘‘hell ships’’ of World War II. There is a terrible history associated with them because, generally speaking, they are 

deeply unhealthy places to hold people, historically speaking, and 

often they are dangerous as well. Many an American POW [prisoner of war] was accidentally killed by friendly fire when we fired 

on ships in World War II that turned out to have prisoners aboard 

them. So there is the justifiable negative reputation there. 

It is carried forward in the Third Geneva Convention, which says 

prisoners of war have to be held on land, full stop. That provision 

is not applicable. That is a provision applicable only to international armed conflicts, which is not what we are talking about 

here. It is not clear that in noninternational armed conflict the 

same strict rule applies, but we can look to the Army’s longstanding regulations about shipboard detention. Army Regulation 

190–8 has long provided that you have to strictly limit it, but it can 

be done for temporary operational exigency reasons, particularly if 

you have captured someone at sea. 

I agree with Judge Mukasey that, at the end of the day, it was 

lawful to hold Warsame for the 2-month period that we did hold 

him. You couldn’t show that that violated international law. But 

there is no question, also, that we do not want to be in the business 

of long-term Guantanamo at sea. 

Mr. LANGEVIN. Very good. 

Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thank you. 
32 

Mr. Reyes. 

Mr. REYES. Thank you, Mr. Chairman. 

And thank you, gentlemen, for being here. I did read your testimony, but I apologize for not being here earlier due to another conflict. 

But I was interested, based on what I read and what I have 

heard, what you think are the long-term implications of what has 

been the whole Guantanamo experience or the process, both to us 

and to our allies. And then, in there, if you could consider the 

kinds of asymmetric threats that we face today, what can we expect long-term from this issue. 

Mr. DELL’ORTO. Well, let me begin, Congressman Reyes. 

Going back to the earliest days of the determination to house detainees at Guantanamo, there was a fairly extensive look at potential options for where to house folks. And as Secretary Rumsfeld 

I think once described it, it was the least worst of a number of bad 

options. 

There weren’t very many options open to us, particularly if we 

were not going to keep them in Afghanistan because of the nature 

of the footprint we wanted to limit in the theater there, the practical reasons for trying to maintain a very secure facility, and, you 

know, concerns about having folks in the United States who, you 

know, who unlike traditional soldiers who fight in accordance with 

the laws of war, would do anything were they to break out and be 

a true threat to the populace. 

Guantanamo became the one place where we believed we had the 

ability to, first, ensure that they were secure there, and, two, put 

us in a position to take maximum opportunity to develop as much 

intelligence as we could. 

Having said that, I think the reasons—and as I said in my earlier testimony—I think the reasons for opening Guantanamo then 

hold true today: where we have a dynamic situation, a changeable 

foe, an uncertain operational picture in terms of geography. Guantanamo, to my way of thinking, still presents us with a very welldeveloped and mature now facility, with all of the construction that 

has taken place there, procedures that have been established for 

detaining the sorts of folks we are picking up on the battlefield, 

and continuing to interrogate them as the need warrants. 

Mr. MUKASEY. I would add that Guantanamo, in my view, is a 

state-of-the-art facility. I visited when I was a district judge. Forget 

maximum security—medium security facilities in this country, Federal prisons; Guantanamo compares favorably with the conditions 

in those prisons insofar as how it treats people. 

If we were to close it, we would be doing away not only with all 

of that, it is a place that is remote, secure, and humane. We would 

be doing away with all of that. We would also be doing away with 

all of the experience, the collective experience that we have in holding people there, understanding how to deal with them and how to 

control them. That would be an enormous sacrifice, forget the financial sacrifice of having built that kind of facility, including an 

expensive courtroom facility in which we can try military commission cases. 

Long-term, what I hope, in response to your question, is that we 

here and the world at large comes to its senses about what Guanta-
33 

namo is and what it isn’t, and that if we have to keep it open, that 

we can keep it open and do it in a straightforward, unashamed 

way. Because there is nothing to be ashamed of down there. 

Mr. CHESNEY. Greetings from Texas, Congressman. 

You asked about asymmetric threats and the future course of 

things. In looking very far ahead, I want to sound a pessimistic 

note and suggest that we may look back on this time, amazingly 

enough, as the easy phase in terms of the legal and policy debates. 

We may, 10 years down the road, be dealing with a situation in 

which we long for the days in which we could at least say that 

there was something called ‘‘Al Qaeda’’ that had some sort of organizational trappings and that it wasn’t so completely diffused that 

you can’t even come to grips with exactly who the enemy is. 

One of the leading theoreticians of Al Qaeda is a man named alSuri. And al-Suri’s core idea is a familiar one for those who study 

nonstate violence. It is the idea of leaderless resistance. He has 

been urging for years and years that Al Qaeda’s leadership do everything it can to transform the movement from organization to 

ideology and inspiration, where everyone might decide to selfradicalize and engage in violence against us. And if and when we 

really get to that point in an even greater degree than we have 

today, we are going to have one heck of a time trying to figure out 

how to bring all these tools to bear on it. 

Mr. ENGEL. I will just say, on a more positive note, we have understandably been focusing on issues in which there is disagreement, but when I look at the long term and I think about, you 

know, where we have come over the last 10 years, I am actually 

heartened by the degree to which there is some bipartisan agreement on a number of issues, you know, with respect to this armed 

conflict. 

You know, we have seen—there is common agreement that we 

are at war with this enemy, Al Qaeda and its affiliates. There is 

common agreement that we may detain these folks under the laws 

of war and for the long term. And even with respect to things like 

military commissions, which seemed to divide the country, you 

know, just a few years ago, we have seen President Obama support 

military commissions, at least in principle, and actually push 

through, you know, or support an act that Congress passed to update and amend the Military Commissions Act of 2009. 

And so, through now two successive administrations, there is actually a substantial degree of consensus on a lot of big issues with 

respect to the legal framework of the war on terror. And, 

unsurprisingly, there are still issues of policy and law that divide 

folks, but, you know, I actually see things moving in a positive direction on a lot of fronts. 

The CHAIRMAN. Thank you. 

Mr. Garamendi. 

Mr. GARAMENDI. Thank you, Mr. Chairman. 

I, too, apologize for not being here earlier. I was in the Resources 

Committee defending the work you did on the wilderness study in 

Mono County. Good piece of work. 

But the issue at hand today is exceedingly important. As you recall, we had a rather controversial moment with the National Defense Authorization Act. I want to compliment you on having this 
34 

hearing, bringing us together to deal with some of the extraordinarily important and very complex issues surrounding it. 

The one question I have goes to Guantanamo, and that is, could 

it be a Federal court as well as a military court at Guantanamo? 

Mr. MUKASEY. It can’t. The Constitution prescribes that cases be 

tried where the crimes are committed. And you can’t—forgetting 

the fact that there is no Federal district, Congress could always define the outlines of a Federal district. And there is no authorization 

for holding court there; you can solve that, too. And forgetting 

where you would get a jury from and where you would hold them 

and all of that. I believe the Constitution absolutely bars trying 

somebody someplace other than where the crime was committed. 

The CHAIRMAN. Thank you. 

Ms. Sanchez, you had another question? 

Ms. SANCHEZ. I just wanted to put something in for the record, 

because I know that Mr. Dell’Orto had—and I agree with a lot of 

what you are saying with respect to how important—or how well 

our military men and women can judge the combatants. And, to a 

large extent, I do agree with that. 

But you mentioned, in saying that, Mr. West’s comments about 

how it had served us in the past. And the one case that he brought 

up, in particular, were the six German saboteurs. And I just wanted to add for the record, that was probably not a very good case 

to bring up, considering, you know, putting them before a firing 

squad when, in fact, they had turned themselves in. Most of them 

didn’t even know what they were coming over to do, et cetera. It 

is just a very bad case in point, so I wanted to put that into the 

record. 

But I do agree with your comments about how, most of the time, 

our military can be some of the best judges with respect to that. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

I have a couple of questions. 

What are some of the possible ramifications for bringing foreign 

terrorist detainees to the United States in terms of constitutional 

rights and immigration-related issues that could be triggered? 

Mr. MUKASEY. Well, I think we are all aware that, once somebody comes to this country, there attaches to them a whole panoply 

of rights that they don’t have so long as they are outside it. And 

that is true even post-Boumediene. 

So far as immigration issues, once somebody is in this country, 

there are then limits on how long we can hold them in an effort 

to deport them. If it were necessary to deport any of the people 

that we brought here for trial, whether because of the expiration 

of their sentence or because of their acquittal, the current state of 

the law is that we have essentially 6 months to find a place for 

them to be sent, and then we may very well have to let them go. 

Now, whether that would hold in a difficult case or not, I don’t 

know. But I don’t want to have to bet the farm on the outcome of 

that kind of exercise. I think once they get here, they are in the 

jurisdiction of any Federal court where they are held. And there is 

a whole array of lawyers who have said that they are perfectly 

well-prepared to file as many cases as they can, whether they are 

frivolous or well-founded, in an attempt to challenge conditions of 
35 

confinement, the fact of confinement, the whole range of issues that 

can be challenged in a Federal court. And we are going to find our 

Federal courts in the business of doing virtually nothing but defending those cases, if those folks are brought here. 

Mr. CHESNEY. On the question of constitutional rights, the interesting question is, What, ultimately, will turn out to be the case 

for the detainees who stay at Guantanamo when they are being 

prosecuted in commissions when they invoke the Sixth Amendment 

Confrontation Clause and Fifth Amendment due process, particularly relating to coercion and voluntariness? 

It remains to be seen and is an open question whether or not the 

constitutional, trial-related rights that are at issue for sure if you 

bring them into the United States, whether they might be at issue, 

as well, and perhaps even to the same effect in a commission proceeding. There is years of litigation awaiting us before we know for 

sure what the D.C. Circuit or the Supreme Court ultimately will 

have to say on that. 

We can’t assume, though, that the current state of play is or will 

be that they get a certain set of rights in the United States but 

they just won’t get that at Guantanamo. They may well get the 

same constitutional rights in the end. We don’t know, we don’t 

have a crystal ball, but you can’t rule it out. 

On the immigration issue, the key issue, it is, I think, the most 

significant problem and issue that needs to be dealt with when one 

considers bringing someone from outside the United States into the 

U.S. The Supreme Court in 2001 in Zadvydas had said, in a nonnational-security case, that if you had some person who is removable, but for whatever reason, he is a stateless person or he is at 

risk of torture, whatever it is, you just practically can’t remove 

them, then, as Judge Mukasey said, after 6 months, or roughly 

speaking, you potentially constitutionally got to let him go into the 

United States. 

However, in the same decision, Justice Breyer, for the majority, 

wrote specifically that the majority was not talking about a terrorism—and they used that word—terrorism or national security 

scenario. They didn’t say that the answer would be opposite in that 

scenario, but they went out of their way to say that they weren’t 

setting that rule. 

And in a later case called Clark v. Martinez, an opinion by Justice Scalia again underlined that that was not necessarily the rule 

for terrorism and security cases. And Justice Scalia, for the majority, specifically referred to the Alien Terrorist Removal Court, the 

special immigration proceeding that we haven’t yet had occasion to 

use but we well might in one of these cases, suggesting fairly 

strongly that the answer might be different in that context. 

The CHAIRMAN. Anybody else on that one? 

Mr. ENGEL. Well, I think I would just add, I mean, when we are 

talking about bringing people into the United States, and when 

particularly we are talking about people from difficult or failed 

states like when we are talking about Yemen or Somalia or the 

like, we need to assume that they are not leaving here at the end 

of the day, and either they will be kept in detention, if we believe 

we can detain them, or, ultimately, someday they will be released 

if our legal authority for detention lapses. 
36 

And, you know, those are serious issues that need to be considered in addition to the burdens of nonstop litigation that Judge 

Mukasey alluded to, you know, that will come. So it is a weighty 

decision and one that shouldn’t be made solely with a focus on a 

particular criminal prosecution, you know, which could have a 

short term with uncertain results. 

The CHAIRMAN. Okay. 

There has been some discussion about whether Ahmed Warsame 

could qualify for prosecution before a military commission. Do you 

believe that the Military Commissions Act would need to be 

amended in order to establish jurisdiction over individuals who are 

part of an associated force, such as Al Qaeda in the Arabian Peninsula? 

Mr. ENGEL. I don’t personally believe so. I think it is certainly 

a question that would be litigated, and it is not a trivial question. 

But the Military Commissions Act, as it is currently written, permits prosecution of individuals who have engaged in hostilities 

against the United States or who has purposefully and materially 

supported hostilities against the United States or its coalition partners. 

Again, I mean, I think, to the extent that this committee were 

to look at this issue and were seeking to expand, you know, to include associated forces alike, I think that could be helpful. But I 

do think the Government could argue and likely win the case like 

Al Shabab, you know, or Warsame under the Military Commissions 

Act. 

Mr. CHESNEY. I think with Al Qaeda in the Arabian Peninsula, 

I think the Government would win this. It may have to come forward with evidence it would prefer not to use in court to do it, but 

it could do it. 

I think Al Shabab, from an outside perspective, not knowing the 

classified information that is relevant to the question, I nonetheless 

have the perception that it is substantially more difficult question, 

complicated by the fact that in Al Shabab you have some actual Al 

Qaeda figures who are effectively dual-hatted. Some Al Shabab 

members, they are clearly going to come within the scope of the 

commissions act and detention authority under the AUMF, whereas other, especially more of the indigenous personnel in Al Shabab, 

that is not necessarily the case. 

And then, again, of course, it will all change over the course of 

a year’s time. It is an evolving threat. In the past year, we have 

seen Al Shabab’s leadership declare formal allegiance to Al Qaeda. 

And in a year or 2, we may find that Al Shabab is relatively 

uncontroversially described as part and parcel of Al Qaeda itself, 

or we may find it remains an indigenous unit that is entirely separate. 

The CHAIRMAN. It is one of the reasons why we are addressing 

this in our current bill, because things do change. And then probably it would be open to be addressed in a future one. 

One final question for Judge Mukasey. I would like to ask if you 

would hone in on how the detainee habeas cases are also impacting 

the evolution of targeting authorities pursuant to the AUMF. Can 

Congress’ affirmation of the AUMF help prevent policymaking by 
37 

the courts in this area? Wouldn’t the affirmation section 1034 provide more solid ground for the lawyers in the executive branch? 

Mr. MUKASEY. The answer to that is an emphatic ‘‘yes.’’ It turns 

out that targeting decisions are being made by reference to the developing body of habeas cases that determine who is and who isn’t 

targetable—or that were not meant to determine that. They determine who can and can’t be held, which is a very different question. 

And the judges, who do not have the fact-gathering ability or, 

frankly, the competence, let alone are not politically responsible, 

are making those decisions in habeas cases. And that body of law 

is then being used, in the absence of any other authority, as a basis 

for lawyers in the Defense Department making targeting decisions. 

The cases were never meant for that. My hope is that it would 

mortify the judges who are deciding those cases to know that their 

decisions have those implications. But the fact is that they do. And 

once you create a body of law, it is very difficult to control how it 

is going to be used by other people, which is an excellent reason 

for Congress stepping in and creating flexibility here and making 

certain that we don’t have targeting decisions being made on the 

basis of ad hoc decisions in habeas cases. 

Mr. REYES. Can I ask one follow-up to that question? 

The CHAIRMAN. Sure. 

Mr. REYES. Judge, is it possible for someone to make a case—because I have heard this in some of the people that are questioning 

the legality of setting up a place like Guantanamo—is it possible 

for somebody to make a case that at least some of these people 

being held there are in a state of legal limbo or legal suspended 

animation because they can’t be moved one way or the other? 

And if it is, what would be the entity that would be able to 

make—that they could make that case to? Is it the World Court? 

Or where would they be able to take it? 

Mr. MUKASEY. Guantanamo is controlled by the United States, 

and in fact the fact of control was the basis for the Supreme Court 

saying that people detained there could have habeas rights, or 

something like habeas rights. I don’t think they are in any kind of 

limbo. They are certainly not in any kind of limbo so long as we 

have courts in this country who will rule on what we do in places 

that we control. I don’t think that is something that we really need 

to concern ourselves with. 

We certainly don’t want to cede jurisdiction over that decision to 

a world body that is essentially a political court that makes decisions on something on the basis of something other than United 

States law. That it seems to me is something that is a decision that 

can and should be controlled by the political branches of Government, this branch, the legislative branch of course, and the executive, and that judges should be following those decisions, not making them. 

The CHAIRMAN. Ranking Member Smith. 

Mr. SMITH. I think you said two things. I want to follow up a little bit on the question of targeting based on the detainability of the 

target. I wasn’t sure I heard quite correctly what you said there, 

Mr. Mukasey. You are saying that there are decisions to target people based on the fact that they are not detainable so we have to 

take them out. Was that—— 
38 

Mr. MUKASEY. No. It is my understanding that in determining 

whether somebody can be targeted or not—and Mr. Dell’Orto I 

think can probably can speak to this more authoritatively because 

he knows about the decisionmaking process within the Pentagon— 

but that lawyers in the Pentagon are involved in those decisions, 

and so they look for a body of law, and the body of that law that 

they look for is the body of law that is contained in habeas cases. 

Habeas cases aren’t for that purpose at all; they are for the purpose 

of determining detainability. And so you wind up having a body of 

law created in one setting being used in a setting which was never 

intended to be used, with results that can’t possibly be good. 

Mr. SMITH. Well, certainly it is a very complicated situation. I 

know the DOD is going to in terms of who they can target, whether 

for detention, killing, or capturing, those lists move around, there 

is a whole lot of history there. But I think I understand your point. 

Just a quick question. Mr. Mukasey had answered about Article 

III courts at Guantanamo that he did not think that was a constitutional option. I just wanted to see what the other three, how 

they felt about that as a possible option. 

Mr. DELL’ORTO. I would certainly defer to the judge’s view on 

that. I have not looked at the question specifically, so I don’t have 

an answer beyond my agreement with Judge Mukasey. 

Mr. MUKASEY. Just to be specific about the provision, Article III, 

Section 3, says: The trial of all crimes except in cases of impeachment shall be by jury and such trial shall be held in the State 

where the said crime shall have been committed, but when not 

committed within any State the trial shall be at such place or 

places as the Congress by law may have directed. 

If you have a crime that is not committed in any State, I suppose 

you could have a court. But then the question would be where do 

you get the jury, where do you hold them? You have to create—or 

add Guantanamo onto one of the existing districts. It is a mare’s 

nest. 

Mr. CHESNEY. Congress created a district of—I am not sure exactly the title, but in West Berlin, in the American sector. I think 

it even tried one case. It may even have been in the 1970s, I believe. Do you know the details, Steve? 

There is an obscure historical episode. This sort of thing can be 

done. It is difficult. But as Judge Mukasey said, the scenario in 

which the offense is entirely extraterritorial, by definition, doesn’t 

present the ‘‘you have got to try it somewhere other than Guantanamo’’ scenario, you can put it where Congress wants to put it. 

There is the expense and the logistical questions associated with 

that. In theory, I suppose you could piggy-back on the facilities that 

are at Guantanamo, and you could create the District Court for 

Guantanamo there, and you could draw on the substantial population that lives there as the jurors. I am not sure this is the right 

solution, but I think actually it probably could be done. 

Mr. ENGEL. I think the principal question would be the difficulties in finding the judge and the jury and the like. I think probably 

as a statutory matter, some Congress could create either a territorial court and may well be able to create an Article III court. I 

don’t know if the West Berlin court was in fact an Article III court, 

or probably a territorial court or the like. 
39 

But it would not be easy, and I don’t know whether it would be 

advisable. But Congress has broad authority to create Federal 

courts, and so if it were to target the issue it may be theoretically 

possible. But I have not studied it, I confess. 

Mr. CHESNEY. I would just add really quickly, if it were an Article III court, we would be talking about the mother of all confirmation hearings, I suppose. 

Mr. SMITH. Thank you. I appreciate the detail. I have no further 

questions. 

The CHAIRMAN. Thank you, each of you, for being here today. I 

think you have been an outstanding panel of witnesses, and we 

really appreciate your expertise and your willingness to help us out 

on this issue. 

With that, this committee stands adjourned. 

[Whereupon, at 12:06 p.m., the committee was adjourned.] 

A P P E N D I X 

JULY 26, 2011 

PREPARED STATEMENTS SUBMITTED FOR THE RECORD 

JULY 26, 2011 

(45) 

Statement of Hon. Howard P. ‘‘Buck’’ McKeon 

Chairman, House Committee on Armed Services 

Hearing on 

Ten Years After the 2001 Authorization for Use of 

Military Force: Current Status of Legal Authorities, 

Detention, and Prosecution in the War on Terror 

July 26, 2011 

Good morning. Much has changed over the past 10 years, since 

the attacks of 9/11 and the 2001 passage of the Authorization for 

Use of Military Force. Changes have been made to Federal agencies, laws, and the lives of thousands of our men and women who 

have taken the fight to the enemy. We’ve borne the heavy burden 

of losing some of those brave men and women. These Americans, 

whether military or civilian, have paid the ultimate price as part 

of an effort to prevent terrorists from reaching our shores. 

Terrorists still pose a grave threat to the United States. But they 

have changed as well. We now face a diversified threat emanating 

from multiple locations. While we believe that Al Qaeda’s capacity 

to launch widespread attacks has been diminished by the unrelenting work of our military and intelligence professionals, there are 

new and different faces of the same enemy in places like Yemen 

and Somalia. Our Government’s counterterrorism leaders say that 

Al Qaeda in the Arabian Peninsula is now the greatest threat to 

the United States. We must acknowledge this reality and move forward. 

When I became Chairman, I told our members that the committee must operate on a wartime footing. This is because as members of Congress, we are charged by our constituents and Article 

I Section 8 of the Constitution to ‘‘provide for the common defense,’’ 

‘‘define and punish . . . offenses against the law of nations,’’ ‘‘declare 

war,’’ ‘‘raise and support armies,’’ ‘‘provide and maintain a navy,’’ 

‘‘make rules for the government and regulation of the land and 

naval forces,’’ and to ‘‘make rules concerning captures on land and 

water.’’ 

It is time to reaffirm Congress’ role in identifying the scope of 

the current conflict. And just as importantly, it is time to reaffirm 

Congress’ support for those we have asked to defend us against the 

threats we face. These are the reasons why I believe the House 

strongly supported inclusion of the affirmation of the 2001 Authorization for Use of Military Force in the National Defense Authorization Act for the Fiscal Year 2012. 
46 

Unfortunately, the Administration has suggested that Congress 

is trying to limit options for handling terrorism suspects. Yet, it is 

the Administration’s foreclosure of some of the most fundamental 

aspects of this war effort that have forced Congress’ hand. For example, we recently heard Vice Admiral William McRaven confirm 

in testimony before the Senate that bringing detainees to Guantanamo is ‘‘off the table.’’ A law of war detention system for future 

captures—focused on intelligence collection and keeping terrorists 

out of the United States—is essential to our success. 

We cannot possibly prefer terrorists to be held aboard Navy 

ships. And we cannot possibly be comfortable with a policy whereby 

bringing terrorists to Guantanamo is ‘‘off the table,’’ but bringing 

them to the United States is not. 

In certain cases, prosecution may also be appropriate for law of 

war detainees. When it comes to deciding the forum for such prosecution, the Administration has shown time and again that not 

only is prosecution in Federal court their overwhelming preference 

for current detainees, it is the only option they will seriously consider for future captures. 

The Administration has spent countless hours touting the Federal criminal justice system. I agree that we have an excellent 

court system. I simply disagree that military commissions, like detention at Guantanamo, should be off the table for future captures. 

In fact, the strong preference should be for prosecution by military 

commission. 

The Administration and their supporters also frequently cite the 

number of terrorism cases that have been successfully prosecuted 

in Federal court. However, this is not a very helpful point of comparison given that we do not know how many terrorists have instead been released and never prosecuted because of a lack of admissible evidence. Further, the courtrooms at GTMO have sat 

empty for 21⁄2 years at the direction of the Administration. The 

commissions system cannot prosecute cases that it does not have. 

This problem is further heightened when the Administration 

delegitimizes the commissions system with their words and actions. 

Attorney General Holder’s reluctant announcement to prosecute 

the alleged 9/11 co-conspirators in a military commission, during 

which he ‘‘blamed’’ Congress, comes to mind. Why would an observer take seriously a forum that the Administration itself seems 

to suggest is a lesser system of justice? 

I disagree with this notion. The military commission system is 

fair and just. And it should be resourced with the best personnel 

our Government has to offer. Instead of undermining the system, 

Attorney General Holder and the Department of Justice should 

lend their full support and resources to the Department of Defense. 

And the military commissions should be given a real chance to succeed. Perhaps then it will be fair to compare and contrast it with 

other systems. 

This is not a time for division. The war we are fighting is against 

our enemies—Al Qaeda and their associates. 

It is time for us to affirm that our enemies, and the legal authorities we have provided to fight them, have evolved. So too must 

our policies, particularly those dealing with law of war detention 

and prosecution. 
47 

Statement of Hon. Adam Smith 

Ranking Member, House Committee on Armed Services 

Hearing on 

Ten Years After the 2001 Authorization for Use of 

Military Force: Current Status of Legal Authorities, 

Detention, and Prosecution in the War on Terror 

July 26, 2011 

I thank the Chairman for holding this hearing. 

I continue to believe we must have a clear and coherent strategy 

to properly detain and interrogate terrorists who attack and threaten us. Congress needs to act to provide a consistent policy that upholds the Constitution and our values while at the same time ensuring our national security. 

This policy needs to do four things: 1) effectively prosecute the 

enemy in a way that is consistent with the rule of law; 2) effectively obtain intelligence, both short-term and long-term; 3) effectively detain those who are fighting against us, both short-term 

and long-term, and 4) resolve what we are going to do with the remaining detainees at Guantanamo. 

In my mind, this means our policy needs to use all effective tools 

to protect us against this terrorist threat. As the President’s advisor on these issues, John Brennan, has stated, ‘‘confronting this 

complex and constantly evolving threat does not lend itself to simple, straightforward solutions. No single tool alone is enough to 

protect the American people against this threat.’’ I am in favor of 

military commissions, when appropriate. I am in favor of law of 

war detention, when appropriate. I am in favor of interrogating the 

enemy, within the rule of law. And I am in favor of using the one 

method we know works, prosecuting terrorists in our criminal justice system. 

The legislative proposals to address our detention and interrogation policies passed by the House limit the President’s options. The 

recent decision by the Administration to try Ahmed Warsame in 

Federal court illustrates the limitations of the pending legislation. 

If enacted, Warsame would not have been able to be transferred to 

the United States for trial in Federal court, which appears to be 

the most effective way for handling his specific case. 

I continue to believe that having a legal and coherent policy to 

detain, try and interrogate terrorists who attack us and their supporters is not just a matter of protecting our Constitution and upholding our values, it is also a matter of national security. It is vitally important that we make it clear to our adversaries that the 

freedoms we hold dear and our way of life that they seek to attack 

is far superior. But it is also important that we craft an airtight 

policy to protect against the court-ordered release of dangerous, 

violent extremists. 

Today’s hearing will provide us with another opportunity to review the relevant law and policy and to have a candid discussion 

about how to best move forward. I look forward to hearing from 
48 

members of the committee and from today’s witnesses, all of whom 

have been involved in detention policy for many years, about how 

we can address this significant problem. 
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DOCUMENTS SUBMITTED FOR THE RECORD 

JULY 26, 2011 

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QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

JULY 26, 2011 

(125) 

QUESTIONS SUBMITTED BY MR. CONAWAY 

Mr. CONAWAY. As we draw down in Afghanistan and Iraq, the case of Ahmed 

Abdulkadir Warsame is an indication of how the U.S. Government will encounter 

terrorists in the future. In the case of Warsame, the U.S. military did not apprehend 

Warsame on the battlefields of Afghanistan or Iraq but instead in the Gulf of Aden 

on the coast of Africa. By all accounts, Warsame provided valuable intelligence information during his interrogations, but due to his terrorist connections, it was impossible for the U.S. military to simply let him go. 

After intelligence-collection interrogations are over, what can the U.S. do with terrorist suspects who were detained outside of Iraq and Afghanistan? 

If the U.S. and Guantanamo Bay are deemed unviable options, where can (should) 

these types of terrorist suspects be held as they await their trial by military commission? 

Mr. MUKASEY. These two questions should be answered together and point up the 

usefulness of enhancing authorities under the AUMF. The AUMF, passed one week 

after the September 11 attack, authorized the President to use force against ‘‘those 

nations, organizations or persons’’ who ‘‘planned, authorized, committed or aided the 

terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism 

against the United States’’ by such persons. Although the AUMF did not name either Al Qaeda or the Taliban, and did not specifically authorize detention, the Administrations of both President Bush and President Obama have operated on the 

assumption that the authority to wage war necessarily includes the power to detain 

captured enemy belligerents. Those belligerents have been encountered not only in 

Afghanistan but also in Iraq, Pakistan, Yemen and Somalia. As a practical matter, 

the return of sovereign control over Iraq to an Iraqi Government means that the 

only place where we have facilities to detain those belligerents other than in the 

United States or at Guantanamo Bay would seem to be at Bagram Air Base in Afghanistan, and that option will not continue indefinitely. If, as the question assumes, we rule out transfer to the United States or to Guantanamo, that leaves only 

the options of transfer to a third country, or release. The former would take out of 

our hands control over duration of confinement or conditions of confinement. Which 

is to say, it would put both our fate and the fate of those captured during the conflict in the hands of third parties, with no assurance that our interests would be 

served or our standards maintained. The alternative of freeing those captured is at 

least equally unsatisfactory, meaning as it does that detainees will be free to return 

to the fight against us. I believe the AUMF should be amended to provide the executive with specific authority to detain, but also with specific standards for determining when detainees must be held outside the United States and when it may 

be permissible to charge them in domestic courts. 

Mr. CONAWAY. After intelligence-collection interrogations are over, what can the 

U.S. do with terrorist suspects who were detained outside of Iraq and Afghanistan? 

Mr. DELL’ORTO. Under the Law of Armed Conflict, if an individual who is determined to be an enemy combatant is captured, he may be detained until the end of 

the conflict. In theory, he may be detained at the location at which he is captured, 

although he must be removed from the danger of ongoing hostilities. If we choose 

not to detain him at the location of capture, whether because of the logistical burden 

associated with maintaining him in a secure facility there or because the country 

in which he is detained objects to our doing so within its borders, or that country 

declines to detain him in one of its facilities under conditions acceptable to the U.S., 

the U.S. can move him to another country willing to detain him or move him to 

Guantanamo Bay. 

Mr. CONAWAY. If the U.S. and Guantanamo Bay are deemed unviable options, 

where can (should) these types of terrorist suspects be held as they await their trial 

by military commission? 

Mr. DELL’ORTO. If neither the U.S. nor Guantanamo is considered a viable option, 

the practical alternatives are extremely limited. As indicated above, the U.S. would 

have to identify a country that would be willing to detain the individual for us 

under conditions acceptable to the U.S. and that would be willing to transfer the 
126 

1Military Commissions Act of 2009 § 1802, 10 U.S.C. § 948c. 

individual back to the U.S. for purposes of trial before a military commission. In 

my experience, very few countries would find themselves in a position to assist us 

in such a manner. First, few, if any, countries believe themselves to be at war with 

Al Qaeda or other similar terrorist entities and thus, would not be in a position to 

rely on the Law of Armed Conflict as a basis for detaining such an individual. Second, very few countries have broad enough domestic criminal legal regimes under 

which such an individual may be detained as a terrorist suspect. Lastly, still fewer 

countries, having agreed to detain such an individual, would agree to transfer the 

individual back to the U.S. for trial before a military commission. On those rare occasions in which a country captured and detained a terrorist suspect who could be 

tried in the U.S., that country would only agree to transfer the individual to the 

U.S. on the condition that he would not be tried before a military commission, but 

rather only in a U.S. civilian court. 

Mr. CONAWAY. As we draw down in Afghanistan and Iraq, the case of Ahmed 

Abdulkadir Warsame is an indication of how the U.S. Government will encounter 

terrorists in the future. In the case of Warsame, the U.S. military did not apprehend 

Warsame on the battlefields of Afghanistan or Iraq but instead in the Gulf of Aden 

off the coast of Africa. By all accounts, Warsame provided valuable intelligence information during his interrogations, but due to his terrorist connections, it was impossible for the U.S. military to simply let him go. 

After intelligence collection interrogations are over, what can the U.S. do with terrorist suspects who were detained outside of Iraq and Afghanistan? 

Mr. CHESNEY. One option, not available in all cases, is to detain terrorism suspects in military custody under color of the law of armed conflict (‘‘LOAC’’), without 

criminal charge. This option by definition is available only where LOAC actually applies. There is, unfortunately, sharp dispute as to where if at all LOAC applies in 

connection with captures that occur outside of combat zones such as Afghanistan. 

One extreme in that debate holds that LOAC has no application whatsoever except 

in the geopolitical boundaries of states in which conventional combat is occurring. 

The other extreme holds that the LOAC applies wherever in the world one might 

find a person who has some kind of connection—membership, perhaps even independent support?—to a group that is in some fashion party to an armed conflict. 

In between, one finds positions such as the view that geography is irrelevant for 

leaders and other group members whose activities have an impact within the recognized war zone. For better or worse, few of the GTMO habeas cases have given 

courts occasion to weigh in on this issue in a manner that could settle it going forward. But there has been at least one such case: the detainees in the Boumediene 

litigation were originally captured in Bosnia, well away from any overt hostilities 

in Afghanistan, and the courts have thus far approved the military detention of one 

of them despite this geographic disconnect. In his case, the conduct making him eligible for detention had to do with efforts to recruit fighters for the combat zone. 

Even if the military detention option is available for non-combat zone captures in 

some cases, however, that does not mean that it is available for just any terrorism 

suspect. The more remote the fact pattern is from Al Qaeda, the less likely it is that 

this option will be available. Nor is it an option for the executive branch to simply 

assert the authority in any event in dubious cases, at least not for the long term; 

it is more likely than not that a person in this fact pattern will be entitled to habeas 

review in a Federal court, no matter where they might be held. 

In any event, criminal prosecution of course is a significant alternative. Military 

commissions are an option under this heading if and only if the individual comes 

within the scope of the personal jurisdiction provision of the Military Commissions 

Act of 2009. Under that statute, a commission has personal jurisdiction only over 

an ‘‘alien unprivileged enemy belligerent.’’ 1 The MCA defines ‘‘unprivileged enemy 

belligerent,’’ in turn, as a person who does not belong to any of the eight categories 

listed in Article 4 of the Third Geneva Convention—the categories defining eligibility for POW status in international armed conflict—and who: 

(A) has engaged in hostilities against the United States or its coalition partners; 

(B) has purposefully and materially supported hostilities against the United States 

or its coalition partners; or (C) was a part of Al Qaeda at the time of the alleged 

offense under this chapter. 

One can readily imagine Warsame-type fact patters that simply do not qualify 

under these standards, as well as situations (possibly like Warsame’s own scenario) 

in which the task of producing evidence in court to satisfy these standards would 

require the Government to go public with intelligence that it would much prefer to 

keep secret. 
127 

And then there is the option of a civilian criminal trial. The question here is not 

one of ‘‘personal jurisdiction,’’ but simply whether the person has in fact committed 

a Federal crime. There are, as it happens, a great many Federal crimes relating to 

terrorism that are now applicable to noncitizens acting abroad, including both the 

1994 and the 1996 material support statutes. 

*For a period in 2009 I served as an advisor to the Detention Policy Task Force, 

established under Executive Order 13493. I write solely in my personal capacity, of 

course, and nothing said here should be taken to reflect the views of that Task 

Force or any other person or department. 

Mr. CONAWAY. If the U.S. and Guantanamo Bay are deemed unviable options, 

where can (should) these types of terrorist suspects be held as they away their trial 

by military commission? 

Mr. CHESNEY. If we begin from the premise that neither the United States nor 

GTMO may be used as the location for detention (of whatever variety), the options 

are slim. 

Option 1 is to attempt to bring the individual to Afghanistan. There are several 

problems with this. First, it is not as if we have complete discretion to bring persons 

from abroad into custody in Afghanistan. A combination of diplomatic and other considerations may forbid this in actual practice in some cases. Second, our detention 

facilities in Afghanistan are no more likely to be permanent than were the facilities 

we used to run in Iraq; even if you can use this option this year, in short, you probably will not have the option two or three years from now, at which point you must 

find an alternative after all. 

Option 2 is to keep the individual aboard ship. As explained in my original testimony, this is a controversial measure to say the least, and would certainly not be 

lawful in an international armed conflict. The law is much less determinate on this 

question with respect to non-international armed conflicts, though I am confident 

that there would be fierce criticism on both policy and legal grounds were this to 

be attempted for more than temporary detention purposes. 

There are no other obvious options if U.S.-based and GTMO-based detention are 

excluded, except perhaps temporary custody in the hands of a cooperative thirdparty state. 

QUESTIONS SUBMITTED BY MR. SMITH 

Mr. SMITH. Please discuss how habeas case law impacts authorities of AUMF, including targeting. 

Mr. MUKASEY. Habeas case law, insofar as it deals with prisoners detained in connection with operations against those engaged in terrorist activities against the 

United States, necessarily has the effect of defining who may and who may not be 

detained under the authority of the AUMF. However, in doing so, such cases necessarily define the substantive reach of the AUMF itself, and thus not only who may 

be detained but also who may be the object of military action. Thus a case intended 

to deal only with whether a particular person may be detained may determine that 

that person is outside the reach of the AUMF because he has not been shown to 

receive direction from one of the groups involved in the 9/11 attacks or to provide 

significant support for such a group. Yet in the absence of other authority, lawyers 

may look to such a case when they are trying to determine whether it is lawful to 

target particular people when there is no way to make such a determination before 

an engagement. 

Mr. SMITH. Please discuss the pros and cons with holding Article III proceedings 

at Guantanamo Bay. 

Mr. MUKASEY. In my view, there are many cons and virtually no pros. As to 

crimes committed within the United States, Article III requires that prosecutions 

be tried in the district where the crime was committed, in whole or in part. As to 

crimes committed outside the United States that may nonetheless be prosecuted in 

an Article III court, there is no legislation designating Guantanamo as a place of 

holding court in any district in this country. Even if there were, one would then 

have to transport a jury from a district in this country to Guantanamo, and house 

them there possibly for months while maintaining their anonymity (lest they or 

their families be subject to reprisals) and preserving their impartiality. In order to 

select the jury, one presumably would have to transport a sizeable venire of potential jurors, unless the defendants are not permitted to attend jury selection or to 

attend only by remote electronic hook-up. It is simply not feasible. 

Guantanamo is remote, secure and humane. Those are the things it has going for 

it. But it is simply not suitable as a place for convening an Article III court absent 

additional legislation and serious obstacles to the process. 
128 

Mr. SMITH. In your opinion, are there any remaining gaps in the legal framework 

for detainees? If so, please describe these gaps and your recommendations for filling 

them. 

Mr. MUKASEY. I believe the principal gap is that we lack legislation the provides 

specific authorization to detain people who are intent on waging war against this 

country, with guidelines for who should be detained, where, and with what safeguards to assure that continued detention is necessary. Instead, we leave such decisions to the military and other executive agencies in the first instance, and to the 

courts when cases are brought by detainees. This means that we run the risk of inconsistent decisions made by people who do not have the political competence or indeed the actual competence to make them, with the possibility that people who 

should be detained will instead be released to rejoin the fight against us. 

Mr. SMITH. Please provide any additional thoughts or information that you were 

not able to share with the committee during the hearing as well as any other points 

you would like to clarify. 

Mr. MUKASEY. Perhaps the main thought I was not able to share lies somewhat 

beyond the jurisdiction of the committee. I believe that faced with a binary choice 

between military commissions and Article III courts, we should try cases involving 

activity abroad almost exclusively before military commissions, and give them the 

resources and support they need to fulfill their mandate. But I think we may question whether military commissions are suited to carry this burden for the long term. 

We have used military commissions throughout our history, but only episodically 

rather than over a long period. Running a parallel justice system is not the principal 

mission of the military, which is there to win wars. I think we should consider creating a national security court to handle these cases with procedures that are flexible and streamlined enough to deal with the conditions of battlefield capture that 

do not allow for the kind of evidence gathering we require in Article III courts and 

yet rigorous enough to handle cases in a way that warrants respect for the outcome. 

Mr. SMITH. Please discuss the pros and cons with holding Article III proceedings 

at Guantanamo Bay. 

Mr. DELL’ORTO. I must preface my answer by stating that I do not know that such 

a proceeding could be held at Guantanamo Bay under the law. I defer to Judge 

Mukasey and the views he expressed at the hearing about whether an Article III 

court could be empowered to sit at Guantanamo Bay under the Constitution. In responding to the question, I will assume for the sake of the answer that an Article 

III court with appropriate jurisdiction could sit at Guantanamo Bay. Among the 

pros would be the avoidance of the controversy, both international and domestic, regarding the military commission as the appropriate forum for terrorism-related 

criminal trials. Moreover, the full resources of the Department of Justice would be 

brought to bear in the prosecution of the defendants. As for cons, the Federal Rules 

of Evidence, which would govern in an Article III proceeding are much more restrictive regarding the admissibility of evidence than those rules of evidence formulated 

for use in a military commission. The risk that crucial, credible evidence might not 

be placed before the finder of fact in an Article III proceeding because of exclusionary rules designed to deter police misconduct, but never designed with a view 

to application on a battlefield, is unacceptable to me and terribly unfair to the victims of the acts that would be subject of the trials. Those sitting in judgment as 

jurors, unlike in a military commission, would be ordinary citizens unversed in the 

significant and unique aspects of the conduct of warfare that is at the heart of the 

crimes for which the defendants would be charged. Should our current conflict end 

and we find ourselves in a future, more conventional, conflict against a nation state 

and its armed forces, as was the case in World War II, we would face the argument 

that the heretofore historically significant and successfully conducted military commission would be an inappropriate forum for the trial of war criminals and thus 

only an Article III proceeding could be utilized. 

Mr. SMITH. In your opinion, are there any remaining gaps in the legal framework 

for detainees? If so, please describe these gaps and your recommendations for how 

best to address them. 

Mr. DELL’ORTO. I believe that the Law of Armed Conflict provides a strong framework for addressing many of the legal issues related to detainees, both prior to and 

after their capture. The one gap that does exist under that framework is what becomes of the detainees at the end of the conflict. In recent conflicts, an end of hostilities signaled an end of the authority for detention of those captured on the battlefield. The end of hostilities meant just that and it was understood that each side 

to the conflict would agree that the conflict had ended and would assert control over 

its nationals so as to ensure that hostilities were, indeed, concluded. Given the unprecedented nature of the current conflict, it is difficult to envision a ‘‘typical’’ sign 
129 

that hostilities have been concluded. There will be no nation and no government to 

which to turn with the expectation that someone or some authority will direct that 

those we have detained are to return to their farms, fields and factories with the 

understanding that their wartime service is now concluded and they will no longer 

bear arms against a recent enemy. The fact is that we currently detain significant 

numbers of individuals who have affirmatively signaled that they have no intention 

of giving up the fight, regardless of what any Al Qaeda ‘‘leader’’ might ever do in 

the way of affirmatively indicating that Al Qaeda’s war against the United States 

is concluded. Faced with a population over which no nation and no government 

would have control, the U.S. cannot just turn this population loose, and yet at the 

pace at which we are now killing off Al Qaeda leadership, there may come a time 

when we no longer face an organized enemy, a point at which we conclude that hostilities have ended. To the best of my knowledge, there is no existing legal framework under which we would have the authority to continue to detain individuals 

who would pose a continuing threat. The one solution I propose for addressing this 

gap is the statutory formation of a national security court, perhaps along the lines 

of the Foreign Intelligence Surveillance Act Court, which would have jurisdiction 

over the determination of whether there should be continued detention of such individuals under an objective standard. 

Mr. SMITH. Please provide any additional thoughts or information that you were 

not able to share with the committee during the hearing, as well as any other points 

you would like to clarify. 

Mr. DELL’ORTO. As I stated in my statement to the Committee, I had the privilege 

of serving as an active duty Army officer for more than twenty-seven years and as 

a senior civilian attorney in the Department of Defense Office of General Counsel 

for nine years, including during the period immediately before, on, and after September 11, 2001. To the extent that I provided legal advice on many of the issues 

under consideration by the Committee, including interpretation of the authority provided by the original Authorization for the Use of Military Force, the development 

of the military commission framework, the decision to establish the detention facilities at Guantanamo, the review of interrogation techniques, and a host of other critical issues associated with our current conflict, I continue to believe that the decisions made to address those issues were sound and have withstood the test of time 

and unceasing legal challenge. I continue to believe that Guantanamo is the best 

location for continued detention of those we have captured, regardless of location of 

capture, in the war against Al Qaeda and its various affiliates. I continue to believe 

that a military commission at Guantanamo is the appropriate forum for the trial 

of those enemy combatants charged with violations of the law of armed conflict. And 

I continue to believe that we should ensure that commanders, from the President 

down to the most junior squad leader, have as much authority as possible to carry 

the fight to the enemy. 

Mr. SMITH. Please discuss how habeas case law impacts authorities under the 

AUMF, including targeting. 

Mr. CHESNEY. Much of the GMTO habeas caselaw concerns either the process of 

the habeas proceedings themselves or the sufficiency of the evidence in particular 

cases. But there also are opinions that speak directly to the interpretation of the 

AUMF. Specifically, there are cases that address which groups fall within the scope 

of the AUMF, and also what conduct or associations suffice to render a particular 

individual so connected to an AUMF-covered group as to make the AUMF relevant 

for that person. 

The interesting question this raises is whether these holdings have an impact on 

other activities, unrelated to GTMO, that the U.S. Government undertakes under 

color of the AUMF. The possibilities include both detention and the use of lethal 

force, whether in Afghanistan or anywhere else in which an AUMF-related target 

might become the target of an attempted capture or a lethal strike. In theory, this 

caselaw should indeed matter for judge advocates and other Government attorneys 

who may be in the position of advising military or civilian officials on the legal 

boundaries of detention and targeting authority in such circumstances. If a Federal 

court has held in any context that the AUMF does or does not reach some particular 

group, or does or does not encompass some particular individual fact pattern, this 

could hardly be dismissed as irrelevant when the exact same question arises in the 

field; the fact that this other circumstances is not likely to come up for habeas review does not change this, though of course it impacts the likelihood that an outside 

authority will step in to impose checks on the Government’s course of action. Having 

said all that, I’m not in a position to say whether this theoretical point is observed 

in actual practice. 
130 

*For a period in 2009 I served as an advisor to the Detention Policy Task Force, 

established under Executive Order 13493. I write solely in my personal capacity, of 

course, and nothing said here should be taken to reflect the views of that Task 

Force or any other person or department. 

Mr. SMITH. Please discuss the pros and cons with holding Article III proceedings 

at Guantanamo Bay. 

Mr. CHESNEY. The primary advantages of holding a civilian criminal trial at 

GTMO are that it would (i) pose less risk that a detainee upon acquittal or release 

from custody would succeed in litigation challenging that person’s removal to their 

country of origin or some other country, and (ii) spare communities in the United 

States from whatever expenses, disruptions, and security risks might follow from 

convening various trials on the mainland. The primary disadvantages are that (i) 

the choice of the GTMO location would, fairly or not, tarnish the perception of legitimacy that otherwise would attach to the prosecution (though not necessarily a 

great deal), (ii) difficult question would arise with respect to impaneling a jury 

(though not necessarily insurmountable ones, as there is a sizeable community living at GTMO and it is not automatically the case that all or even most residents 

would be disqualified from service), and (iii) this presumably would require creation 

of a new Federal judgeship and, hence, the ‘‘mother of all confirmation hearings’’ 

as I put it during my spoken testimony. 

Mr. SMITH. In your opinion, are there any remaining gaps in the legal framework 

for detainees? If so, please describe those gaps and your recommendations for how 

best to address them. 

Mr. CHESNEY. I’m not sure if this qualifies as a gap, but I do think that Congress 

has created a significant obstacle to the use of military detention in the conflict with 

Al Qaeda insofar by imposing such sweeping constraints on the ability of the President to transfer detainees away from GTMO when circumstances warrant. Combined with the lack of plausible long-term detention options, this discourages reliance on captures, and instead creates incentives to merely monitor as best as can 

be done, to plead for action by third countries, or to use lethal force where that is 

a lawful alternative. 

Separately, Congress needs to anticipate the likely withdrawal of American forces 

from Afghanistan at some point in the next few years. Once U.S. forces are no 

longer engaged in sustained combat operations that at least somewhat relate to Al 

Qaeda, some will argue that there is no longer any foundation for treating the law 

of armed conflict as applicable vis-a-vis Al Qaeda, the Taliban, and associated 

forces—and hence that GTMO detention no longer has a legal basis. This argument 

may or may not prevail, but one can be certain that it will be raised through a new 

round of habeas petitions, and it has some chance of succeeding. If Congress actually wishes for the currently-existing scope of detention authority to continue to 

exist without respect to the status of our Afghanistan deployment, it should not simply wait for these arguments to develop and then hope that judges take one particular view on a sharply-contested question. Instead, it should directly and explicitly legislate the authority it wishes for the President to have—i.e., it should provide 

the requisite detention authority as a matter of domestic law, making clear the 

grant of this authority rather than hoping for it to be implied via contested claims 

regarding background principles of the law of armed conflict. 

Mr. SMITH. Please provide any additional thoughts or information that you were 

not able to share with the committee during the hearing, as well as any other points 

you would like to clarify. 

Mr. CHESNEY. I have no further thoughts to share at this time, except to reemphasize my bottom-line: the goal should be to maximize the array of lawful and legitimate options available to the President to employ in particular cases based on 

the advice of military, intelligence, and law-enforcement professionals. 

Æ