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32–981 2008

[H.A.S.C. No. 109–116]

STANDARDS OF MILITARY COMMISSIONS

AND TRIBUNALS

HEARING

BEFORE THE

COMMITTEE ON ARMED SERVICES

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

HEARING HELD

JULY 12, 2006
(II)

HOUSE COMMITTEE ON ARMED SERVICES

ONE HUNDRED NINTH CONGRESS

DUNCAN HUNTER, California, Chairman

CURT WELDON, Pennsylvania

JOEL HEFLEY, Colorado

JIM SAXTON, New Jersey

JOHN M. MCHUGH, New York

TERRY EVERETT, Alabama

ROSCOE G. BARTLETT, Maryland

MAC THORNBERRY, Texas

JOHN N. HOSTETTLER, Indiana

WALTER B. JONES, North Carolina

JIM RYUN, Kansas

JIM GIBBONS, Nevada

ROBIN HAYES, North Carolina

KEN CALVERT, California

ROB SIMMONS, Connecticut

JO ANN DAVIS, Virginia

W. TODD AKIN, Missouri

J. RANDY FORBES, Virginia

JEFF MILLER, Florida

JOE WILSON, South Carolina

FRANK A. LOBIONDO, New Jersey

JEB BRADLEY, New Hampshire

MICHAEL TURNER, Ohio

JOHN KLINE, Minnesota

CANDICE S. MILLER, Michigan

MIKE ROGERS, Alabama

TRENT FRANKS, Arizona

BILL SHUSTER, Pennsylvania

THELMA DRAKE, Virginia

JOE SCHWARZ, Michigan

CATHY MCMORRIS, Washington

MICHAEL CONAWAY, Texas

GEOFF DAVIS, Kentucky

BRIAN P. BILBRAY, California

IKE SKELTON, Missouri

JOHN SPRATT, South Carolina

SOLOMON P. ORTIZ, Texas

LANE EVANS, Illinois

GENE TAYLOR, Mississippi

NEIL ABERCROMBIE, Hawaii

MARTY MEEHAN, Massachusetts

SILVESTRE REYES, Texas

VIC SNYDER, Arkansas

ADAM SMITH, Washington

LORETTA SANCHEZ, California

MIKE MCINTYRE, North Carolina

ELLEN O. TAUSCHER, California

ROBERT A. BRADY, Pennsylvania

ROBERT ANDREWS, New Jersey

SUSAN A. DAVIS, California

JAMES R. LANGEVIN, Rhode Island

STEVE ISRAEL, New York

RICK LARSEN, Washington

JIM COOPER, Tennessee

JIM MARSHALL, Georgia

KENDRICK B. MEEK, Florida

MADELEINE Z. BORDALLO, Guam

TIM RYAN, Ohio

MARK UDALL, Colorado

G.K. BUTTERFIELD, North Carolina

CYNTHIA MCKINNEY, Georgia

DAN BOREN, Oklahoma

ROBERT L. SIMMONS, Staff Director

PAUL LEWIS, Professional Staff Member

LORRY FENNER, Professional Staff Member

REGINA BURGESS, Research Assistant
(III)

C O N T E N T S

CHRONOLOGICAL LIST OF HEARINGS

2006

Page

HEARING:

Wednesday, July 12, 2006, Standards of Military Commissions and Tribunals 1

APPENDIX:

Wednesday, July 12, 2006 ....................................................................................... 49

WEDNESDAY, JULY 12, 2006

STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Hunter, Hon. Duncan, a Representative from California, Chairman, Committee on Armed Services ......................................................................................... 1

Skelton, Hon. Ike, a Representative from Missouri, Ranking Member, Committee on Armed Services .................................................................................... 3

WITNESSES

Bradbury, Steven G., Acting Assistant Attorney General, Office of Legal

Counsel, Department of Justice .......................................................................... 4

Dell’Orto, Daniel J., Principal Deputy General Counsel, Department of Defense ...................................................................................................................... 7

Hutson, Rear Adm. John D. (Ret.), President and Dean, Franklin Pierce

Law Center, Former Judge Advocate General, U.S. Navy ............................... 10

Olson, Theodore B., Former Solicitor General of the United States ................... 8

APPENDIX

PREPARED STATEMENTS:

Bradbury, Steven G. ......................................................................................... 60

Dell’Orto, Daniel J. ........................................................................................... 71

Hutson, Rear Adm. John D. (Ret.) .................................................................. 96

Olson, Theodore B. ........................................................................................... 74

Skelton, Hon. Ike .............................................................................................. 53

Udall, Hon. Mark .............................................................................................. 98

DOCUMENTS SUBMITTED FOR THE RECORD:

Guantanamo Bay: New Kind of Law for New Kind of War submitted

by Glenn Sulmasy ......................................................................................... 111

National Institute of Military Justice, Proposed Amendments to the Uniform Code of Military Justice, dated July 5, 2006 ..................................... 101

QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:

Ms. Davis of California .................................................................................... 126

Ms. Sanchez ...................................................................................................... 115

Ms. Tauscher ..................................................................................................... 119

(1)

STANDARDS OF MILITARY COMMISSIONS AND

TRIBUNALS

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Wednesday, July 12, 2006.

The committee met, pursuant to call, at 9:57 a.m., in room 2118,

Rayburn House Office Building, Hon. Duncan Hunter (chairman of

the committee) presiding.

OPENING STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM CALIFORNIA, CHAIRMAN, COMMITTEE

ON ARMED SERVICES

The CHAIRMAN. The committee will come to order. This hearing

addresses standards for military commissions for trials involving

war crimes. I also want to introduce a new Republican Member

from California as a member of the committee, and we will wait

until he arrives before we do that.

But I want to welcome our distinguished panel. We have with us

today Mr. Steven Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, Department of Justice; Mr. Daniel Dell’Orto,

Principal Deputy General Counsel, Department of Defense; the

Honorable Theodore Olson, former Solicitor General of the United

States; and Rear Admiral John Hutson, United States Navy, retired, former Judge Advocate General, U.S. Navy.

Gentlemen, thank you for being with us. We look forward to

hearing your comments on the recent Supreme Court decision on

military commissions and where we go from here.

In Hamdan, the Supreme Court denied the government’s motion

to dismiss, stating the Detainee Treatment Act of 2005, which Congress passed at the end of the year, did not deprive the Court of

jurisdiction. The Court also held that the President’s rules for military commissions are not legal because they do not conform to the

Uniform Code of Military Justice and because they do not conform

to Common Article 3 of the Geneva Conventions.

I think we need to take a close look at each of these rulings, but

before we go any further, we need to do a reset. Make no mistake

about the United States is engaged in a war with terrorists.

Whether we call it a Long War or a Global War Against Terror, or

some other term, this Nation is at war. The enemy declared war

in 1996 when Osama bin Laden declared a jihad against America.

It continued on September 11th, and it continues today. We are at

war, and we may be at war for a long time.

I emphasize this at the outset because we are here to address

how America fights wars. All three branches of government are in-
2

volved in this discussion with the Supreme Court’s decision in

Hamdan v. Rumsfeld.

In Hamdan, the Supreme Court told us to start over when it

comes to trying the enemy as war criminals. We need to start over

not just because the Court told us to, but because we are in a new

type of war against a new type of enemy.

Justice Thomas put it best in Hamdan. He said, and I quote: We

are not engaged in a traditional battle with a nation-state, but with

a worldwide Hydra-headed enemy who lurks in the shadows, conspiring to reproduce the atrocities of September 11th, 2001, and

who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian

workers, and has tortured and dismembered captured American

soldiers.

So who are we dealing with in military commissions? We are

dealing with the enemy in war, not defendants in our domestic

criminal justice system. And on that point the background that I

have seen on Mr. Hamdan is that he is accused of being a bodyguard for Osama bin Laden, a deliverer of weapons and a person

who operated convoys for al Qaeda.

So we are dealing with the enemy in war, not defendants in our

domestic criminal justice system, that is clear. Some of them have

returned to the battlefield after we let them out of Guantanamo,

and this committee has seen pictures of people who were released

from Guantanamo after they asserted that they had had only a peripheral connection with the battlefield and that they would be behave themselves if allowed to return home, and later on they ended

up carrying weapons, shooting at, and presumably inflicting injury

on American soldiers on the battlefield.

So our primary purpose is to keep them off the battlefield. In

doing so, we treat them humanely, and if we choose to treat them

as war criminals, we will give them due process rights that the

world will respect. But we have to remember they are the enemy

in an ongoing war. In this new war where intelligence is more vital

than ever, we want to interrogate the enemy, not to degrade them,

but to save the lives of American troops, American civilian and our

allies. But it may not be practical on the battlefield to read the

enemy their Miranda warnings.

Classified information is another area which we need to look

closely at. Do we want to give the enemy the sources and methods

of how we obtain information? Court-martials in Federal criminal

trials have special rules to protect classified information for our soldiers and civilians, but do we want to give battle intelligence to terrorists? In time of war it may not be practical to apply the rules

of evidence that we do in civilian—the same rules of evidence that

we do in civilian trials or court-martials for our troops. Will commanders and witnesses be called from the frontline to testify in a

military commission, or can we use reliable hearsay and sworn affidavits? I note that hearsay is allowed in international war crime

tribunals for Rwanda and Yugoslavia.

Justices Stevens and Kennedy, who both shaped the Hamdan

opinion, each stated that there could be justification from deviation

from the old rules in this new war. Justice Stevens simply said the

President did not make such a justification for the rules regarding
3

military commissions, although he said such a justification might

be proper if, and I quote, some practical need explains deviations

from court-martial practice.

Justice Kennedy said, again I quote, ‘‘If Congress after due consideration deems it appropriate to change the controlling statutes

in conformation with the Constitution and other laws, it has the

power and prerogative to do so.’’

So let’s see if there is a need or practical reason to change the

rules. We have to give the executive the tools to fight this war.

This is not a separation of powers issue; it is an issue of how to

defeat the enemy. The Supreme Court says that we need congressional participation, but in doing so let’s not forget our purpose is

to defend the Nation against the enemy. We won’t lower our standards, we will always treat detainees humanely, but we can’t be

naive either.

The war started in 1996 with the al Qaeda declaration of jihad

against the Nation. The Geneva Conventions were written in 1945,

and the Uniform Code of Military Justice (UCMJ) was adopted in

1951. In that sense Hamdan may be broader than war crimes trials

that may be the start of a new legal analysis of the long war.

It is time for us to think about war crime trials and a process

that provides due process and protects national security in the new

war. So I think that really is the essence of what we need to

produce in this effort that Congress is going to undertake, and that

is a balancing of these two goals, national security and due process,

fair play for those who are detained.

Whatever we decide, we will uphold basic human rights and

state what our compliance with this standard means for the treatment of detainees. I am sure we can do this in a way that is fair

and the world will acknowledge is fair. Each witness here today is

uniquely qualified to address these questions.

And so, gentlemen, thank you for being with us, and before we

go to your statements, I would like to turn to my good friend from

Missouri, Mr. Skelton, whose father was involved in the litigation

of one of the key cases that was cited by the Hamdan court ex

parte. I look forward to his comments and the comments from all

my colleagues, and I would also like to mention that Ms. Sanchez

has proposed a provision for a commission that she offered—has offered in our last markup, and she has worked this issue, and she

should be commended for that, and we will be looking at her proposal as well as proposals and recommendations and suggestions of

all Members.

So at this time I would like to turn to the gentleman from Missouri, Mr. Skelton.

STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE

FROM MISSOURI, RANKING MEMBER, COMMITTEE ON

ARMED SERVICES

Mr. SKELTON. Mr. Chairman, thank you very much. I join in welcoming the witnesses.

Mr. Chairman, I am going to be brief and ask that my longer

statement be entered into the record in the interest of going

straight to the testimony and to the questions.
4

We in Congress have a responsibility to those who serve in uniform in the same way we are committed to ensuring that our forces

have the best equipment when they go into battle. We will do everything, I will repeat, we will do everything to make sure the

enemy is taken off the battlefield and not given another opportunity to kill American soldiers and marines.

We take this as our charge, but we must do so in a way that conforms strictly to the rule of law with our core values as Americans.

That is what our troops fight for.

Mr. Chairman, I am glad you mentioned Ms. Sanchez’s proposed

legislation. She has been working on this for a good number of actually years, if I understand correctly, and has anticipated the outcome of this case.

The Supreme Court spoke loudly and it spoke clearly when it

ruled in the Hamdan case, and we can and we must craft a system

for aggressively dealing with accused terrorists and war criminals

that holds them to account, but we must do so in a way that meets

the standards that are laid out by the Supreme Court decision.

The Court has given Congress a clear charge to craft a system

that provides basic due process. We can and we must get this right.

The worst thing we can do, Mr. Chairman, is for another Supreme

Court decision to kick back what we do.

So to do so, I believe we must look carefully at tried and true

existing systems of law like the Uniform Code of Military Justice

that may provide a basis for a solution. We must consider the

modifications that need to be made to make commissions most effective as a tool in the war on terror.

Mr. Chairman, this is not the first time that we have had tribunals or commissions regarding an enemy. In 1942 and 1946 again,

we had commissions that were upheld at that time. But under this

recent Supreme Court decision, it is possible to legislate a system

that will keep terrorists off the battlefield and meet the Court

standards.

This hearing is a good first step, and I compliment you, but we

will need more hearings like them and will need to work together

in a bipartisan, open process to figure out the best solution. This

will take time and will take consideration. It is well worth it for

our troops and for the outcome of the war on terror, and I look forward, Mr. Chairman, to undertaking this effort and hearing from

our witnesses.

[The prepared statement of Mr. Skelton can be found in the Appendix on page 53.]

The CHAIRMAN. I thank the gentleman, and again, gentlemen,

good morning. Mr. Bradbury, thank you, sir, for being with us. The

floor is yours.

STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. BRADBURY. Thank you, Mr. Chairman, Ranking Member

Skelton and members of the committee.

The Supreme Court in Hamdan v. Rumsfeld held that the military commissions that the President had established were inconsistent with the Uniform Code of Military Justice and the Geneva
5

Conventions. It is important to realize, as the Chairman emphasized, that the Court did not question the authority of the United

States to detain enemy combatants in the war on terror, and its decision does not require us to close Guantanamo Bay (GTMO) or release any terrorists. The Court implicitly recognized that the vicious attacks of al Qaeda triggered our right to use military force

in self-defense, and that we are involved in an armed conflict with

al Qaeda.

The Court furthermore made clear that its decision rested only

on an interpretation of current statutes and treaty-based law. The

Court did not address the President’s constitutional authority and

did not reach any constitutional question. Therefore, Hamdan now

gives the Congress and the Administration a clear opportunity to

work together to address the matters raised by the case, including

the appropriate procedures to govern military commissions.

In moving forward after Hamdan, the basic question we must answer is how best to pursue the prosecution of al Qaeda and other

terrorist combatants in this armed conflict. In trying al Qaeda terrorists for their war crimes, it is not appropriate as a matter of national policy, not practical as a matter of military reality, not required by the Constitution, and not feasible in protecting sensitive

intelligence sources and methods to require that military commissions follow all of the procedures of a court-martial.

In my written testimony I have identified several provisions of

the Uniform Code of Military Justice and court-martial procedures

that are impractical to apply in the military commission context.

Mr. Chairman, all the issues with military commissions identified by the Supreme Court can be addressed and resolved through

legislation. The Administration stands ready to work with Congress to do just that so that trials of captured al Qaeda terrorists

can move forward again.

In its decision, the Court also addressed the application of the

Geneva Conventions to al Qaeda fighters in our war on terror. On

this point it is important to emphasize that the Court did not decide that the Geneva Conventions as a whole apply to our conflict

with al Qaeda or that members of al Qaeda are entitled to the

privileges of prisoner of war status. The Court held rather that the

basic standards contained in Common Article 3 of the Geneva Conventions apply to the conflict with al Qaeda.

Of course, the terrorists who fight for al Qaeda have nothing but

contempt for the laws of war. They have killed thousands of innocent civilians in the United States and thousands more in numerous countries around the world. They openly mock the rule of law,

the Geneva Conventions, and the standards of civilized people everywhere, and they will attack us again if given the chance.

When the Geneva Conventions were concluded in 1949, the drafters of the conventions certainly did not anticipate armed conflicts

with international terrorist organizations such as al Qaeda. Be that

as it may, we are now faced with the task of implementing the

Court’s decision on Common Article 3.

Last year, Congress engaged in a significant public debate on the

standards that should govern the treatment of captured al Qaeda

terrorists. Congress codified that standard in the McCain amendment, part of the Detainee Treatment Act, which prohibits cruel,
6

inhuman or degrading treatment or punishment, but, importantly,

it defined that standard by reference to the established meaning of

our Constitution for all detainees held by the United States.

We all believe that enactment of the Detainee Treatment Act settled questions about the baseline standard that would govern the

treatment of detainees by the United States in the war on terror.

That assumption is no longer true.

In its ruling in Hamdan, the Supreme Court has now imposed

another baseline standard, Common Article 3 of the Geneva Conventions. On the one hand, when reasonably read and properly applied, Common Article 3 will prohibit the most serious and grave

offenses. Most of the provisions of Common Article 3 prohibit actions that are universally condemned such as violence to life, murder, mutilation, torture and the taking of hostages.

These are a catalog of the most fundamental violations of international humanitarian law. In fact, they neatly sum up the standard tactics and methods of warfare utilized by our enemy.

On the other hand, although Common Article 3 should be understood to apply only to serious misconduct, it is undeniable that

some of the terms in Common Article 3 are inherently vague. Common Article 3 prohibits, quote, ‘‘outrages upon personal dignity,in

particular, humiliating and degrading treatment,’’ a phrase that is

susceptible of uncertain and unpredictable application. In Common

Article 3 it is not defined by reference to our own Constitution as

it is in the McCain amendment.

Furthermore, the Supreme Court has said that in interpreting a

treaty provision, the meaning given to the treaty language by international tribunals must be accorded, quote, ‘‘respectful consideration,’’ and the interpretations adopted by other State parties to

the treaty are due considerable weight. Accordingly, the meaning

of Common Article 3, the baseline standard that now applies to the

conduct of U.S. personnel in the war on terror, would be informed

by the evolving interpretations of tribunals and governments outside the United States. Many of these interpretations to date have

been consistent with the reading that we would give to Common

Article 3. Nevertheless, the application of Common Article 3 will

create a degree of uncertainty for those who fight to defend us from

terrorist attack.

The meaning of Common Article 3, of course, is not merely academic, because the War Crimes Act makes any violation of Common Article 3 a felony offense.

We believe that the standards governing the treatment of detainees by the United States in the war on terror should be certain,

and that those standards should be defined by U.S. law consistent

with our Constitution and our international obligations. We look

forward to working with Congress to protect the American people

and to ensure that unlawful terrorist combatants can be brought

to justice consistent with the Supreme Court’s guidance.

I look forward to discussing those issues with the committee this

morning, and thank you, Mr. Chairman.

The CHAIRMAN. Mr. Bradbury, thank you.

[The prepared statement of Mr. Bradbury can be found in the

Appendix on page 60.]
7

The CHAIRMAN. Mr. Dell’Orto, thank you for being with us today,

sir.

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

The CHAIRMAN. Pull that up closer, make sure it is on.

STATEMENT OF DANIEL J. DELL’ORTO, PRINCIPAL DEPUTY

GENERAL COUNSEL, DEPARTMENT OF DEFENSE

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

Skelton and members of the committee. On behalf of the Department of Defense, please allow me to express my gratitude for the

opportunity to appear before you today and for the prompt and

careful consideration by the committee of necessary measures in response to the Supreme Court’s decision in Hamdan v. Rumsfeld.

I join wholeheartedly Mr. Bradbury’s statement and add just a

few words of my own. The United States military has convened

criminal tribunals other than courts-martial since the days of the

very first Commander-in-Chief George Washington. From the Revolutionary, Mexican-American, and Civil Wars, on through World

War II and the present, our Nation and its military have considered these tribunals an indispensable tool for the dispensation of

justice in the chaotic and irregular circumstances of armed conflict.

The military commission system reviewed by the Court in

Hamdan fits squarely within this long tradition. Tradition, however, is not the only justification for employing criminal adjudication processes other than courts-martial in times of armed conflicts.

Alternative processes are necessary to avoid the absurd results of

adopting protections for terrorists that American citizens do not receive in civilian courts.

The court-martial system generally is not well known or understood outside the military. One common misperception is that

courts-martial must necessarily render a lesser form of justice because they fall outside the judicial branch, but the opposite is actually true. To protect in court those who protect us in battle and to

avoid even the appearance of unlawful command influence, courtsmartial are more solicitous of the rights of the accused than are civilian courts.

For every court-martial rule that is arguably less protective of

the accused than its civilian analog, there are several that are indispensably more protective. For example, legal counsel is provided

without cost not just for the indigent, but for all. The rights to

counsel and against self-incrimination are afforded earlier in the

military justice system than in civilian practice. Instead of indictment by grand jury, which convenes in secret without the defendant and defense counsel, the military justice system requires that

for a general court-martial a thorough and impartial investigation

be open to the public and the media, at which the accused and defense counsel may conduct pretrial discovery and call and cross-examine witnesses.

The court-martial process allows open and full discovery of the

government’s information by the accused, a process more open and

automatic than discovery in civilian criminal prosecutions. The

speedy trial rules are much more strict in the military justice system than in the civilian system. The statute of limitations that applies to most military offenses is shorter than the Federal statute
8

for terrorism offenses, and the rules for exclusion of evidence are

more generous toward the accused than their civilian counterparts.

While tradition and common sense, therefore, provide strong support for alternative adjudication processes for terrorists and other

unlawful enemy combatants, military necessity is perhaps the

strongest reason of all. It is simply not feasible in time of war to

gather evidence in a manner that meets strict criminal procedural

requirements.

Service personnel are generally not trained to execute military

combat and intelligence missions while simultaneously adhering to

law enforcement standards and constraints.

Asking our fighting men and women to take on additional duties

traditionally performed by police officers, detectives, evidence

custodians, and prosecutors will not only distract from their mission, but endanger their lives as well. Intelligence gathering would

also suffer terribly. It would greatly impede intelligence collection

essential to the war effort to tell detainees before interrogation that

they are entitled to legal counsel, that they need not answer questions, and that their answers may be used against them in a criminal trial.

Similarly, full application of court-martial rules would force the

government either to drop prosecutions or to disclose intelligence

information to our enemies in such a way as to compromise ongoing or future military operations, the identity of intelligence

sources, and the lives of many. Military necessity demands a better

way.

As Mr. Bradbury stated, the Hamdan decision provides Congress

and the President an opportunity to address these critical matters

together, and we look forward to working with you.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Mr. Dell’Orto.

[The prepared statement of Mr. Dell’Orto can be found in the Appendix on page 71.]

The CHAIRMAN. Mr. Olson, thank you very much for being with

us today, and the floor is yours, sir.

STATEMENT OF THEODORE B. OLSON, FORMER SOLICITOR

GENERAL OF THE UNITED STATES

Mr. OLSON. Thank you, Chairman Hunter, Ranking Member

Skelton, and members of this committee. I appreciate the opportunity to appear before the committee to testify about a Supreme

Court decision that has far-reaching implications for the President’s ability to defend our national security and to perform his duties as Commander-in-Chief. No issue, I believe, deserves more

thoughtful consideration from our elected representatives than ensuring that the American people are defended from a savage terrorist enemy that deliberately targets civilian lives and mutilates our

soldiers in an effort to destroy our way of life.

It is altogether necessary and appropriate for Congress to consider a legislative response to the Hamdan decision. Indeed, all

eight Justices who participated in the case recognized that congressional action could cure any perceived inadequacies in the military

commissions established by the President.
9

In my written submissions to you, I address the questions of

military commissions and the applicability of the Geneva Conventions and how that issue might be dealt with. I would like to today

just focus on another aspect of the Hamdan decision that I don’t

believe will be covered by the other witnesses.

In response to the Justices’ invitation to implement a legislative

solution, it is my view that Congress should restore the status quo

that existed prior to the Supreme Court’s decision in Hamdan and

Rasul v. Bush two years ago that for the first time in the history

of the United States, and contrary to long-established precedence,

held that Federal courts in the United States had jurisdiction over

the capture, detention and treatment of noncitizen aliens captured

on the battlefield and held beyond the sovereign territory of the

United States.

The Supreme Court in that Rasul decision overturned Johnson v.

Eisentrager, a Supreme Court precedent written by Robert Jackson

that had stood for over 50 years, and held for the first time that

the habeas corpus statute gave the Federal courts jurisdiction to

supervise the custody of alien combatants held abroad by our military forces.

In the Hamdan decision, the Court held that the Detainee Treatment Act enacted by this Congress in response to the Rasul case,

reasserting by Congress that the courts had no jurisdiction to hear

habeas corpus petitions from enemy alien combatants held abroad,

the Supreme Court in Hamdan reversed that decision and said that

it did not apply, your legislation did not apply, to pending cases.

Since the emergence of the writ of habeas corpus several centuries ago in English common law courts, the writ has never been

available to enemy aliens held outside a country’s sovereignty. By

requiring the President to justify his military decisions in Federal

courts, Rasul imposes a substantial and unprecedented burden on

the President’s ability to react with vigor and dispatch to homeland

security threats.

The congressional response to Rasul, as I mentioned before, was

the Detainee Treatment Act that explicitly provided that no court

shall have jurisdiction to hear or consider an application for a writ

of habeas corpus filed by or on behalf of an alien detained by the

Department of Defense at Guantanamo Bay. No court, no jurisdiction.

Notwithstanding that clearly stated legislative language, the

Hamdan Court held that the Detainee Treatment Act does not

apply to those petitions that were pending at the time of the decision. That holding requires the Federal courts to adjudicate hundreds of other habeas corpus petitions filed by Guantanamo Bay

detainees pending at the time that legislation was enacted.

Until the Supreme Court’s Rasul decision, no court had ever suggested that aliens captured during hostilities and held outside the

United States could challenge their captivity through a petition for

writ of habeas corpus filed in a U.S. court. Indeed, none of the two

million prisoners of war held by the United States at the conclusion

of World War II was deemed authorized to file a habeas petition

in a U.S. court challenging the terms or conditions of their confinement.
10

One can only imagine the chaos that would have been introduced

into the effort to win World War II if each of these detainees or

lawyers on their behalf had been permitted to file petitions in the

United States courts immediately upon their capture in Europe, Africa, or in the islands of the Pacific. Yet that is precisely the circumstance that Rasul and Hamdan have created and that the

President and the armed forces must face today in their fight

against terrorism.

The Rasul and Hamdan decisions impose a tremendous burden

on our military personnel in the field. To begin with, as the Supreme Court explained in the Eisentrager decision 50 years ago,

authorizing courts at the behest of enemy aliens to second-guess

the decisions of military commanders will diminish the prestige of

our commanders not only with the enemies, but with wavering

neutrals.

The Court goes on: It would be difficult to devise more effective

fettering of a field commander than to allow the very enemies he

is ordered to reduce to submission to call him to account in his own

civilian courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.

Mr. Dell’Orto mentioned some of the complications, but they include: Will commanders be summoned from the field to give evidence and to explain the circumstances of the capture of combatants? Will detainees have access to counsel? Do they have the right

to appointed counsel, Miranda warnings, the right to speedy trials?

Will the Government be required to disclose sensitive intelligence

information to demonstrate that its detention of enemy combatants

is justified?

Those are just a few examples. I submit that Congress should act

to restore the status of the habeas corpus jurisdiction that has existed throughout this Nation’s history until two years ago. The

Constitution places the decision to detain a noncitizen enemy combatant on the battlefield squarely within the domain of the President as Commander-in-Chief of the Armed Forces. Congress should

restore the constitutional balance by amending the Detainee Treatment Act to clarify, as the Congress, I think, thought it did then,

that Federal courts lack jurisdiction over habeas corpus petitions

filed by detainees held outside the sovereign territory of the United

States, no matter when those petitions were filed.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Olson can be found in the Appendix on page 74.]

The CHAIRMAN. Mr. Olson, thank you very much.

Rear Admiral Hutson, thank for being with us this morning.

STATEMENT OF REAR ADM. JOHN D. HUTSON, (RET.), PRESIDENT AND DEAN, FRANKLIN PIERCE LAW CENTER, FORMER

JUDGE ADVOCATE GENERAL, U.S. NAVY

Admiral HUTSON. Thank you, Mr. Chairman. Mr. Skelton, thank

you. Thank you for holding what I think are incredibly important

hearings on the issue of the day right now in prosecution of the

war.

I want to start out by saying unequivocally that I want to be able

to successfully prosecute terrorists; however, I believe that success-
11

ful prosecution entails a full and fair hearing which complies with

the dictates of Common Article 3 to the extent that it is a regularly

constituted court that comports with the judicial guarantees recognized as indispensable by all civilized peoples. I don’t believe that

there is any part of that, a regularly constituted court or judicial

guarantees recognized as indispensable by civilized peoples, that

the United States should or could try to avoid or evade in any way.

We shouldn’t make this too hard or too complicated or try to get

too cute with it. We know what those guarantees are. We should

enthusiastically embrace them, we should celebrate them, we

should shout them from the rooftops. We can do that from a position of strength, not from a position of weakness. It is those guarantees that make us strong.

We are the strongest Nation militarily on the face of the Earth,

there is no doubt about that. Our strength as a Nation comes not

from our military strength or from our economy or from our natural resources or the essential island nature of our geography; our

strength comes from what we have stood for for generations. That

is what gives us strength, and we should be proud of that and celebrate it.

I was an early supporter of the concept of military commissions,

and I still am. I think it is the way to go. I was not a supporter

of the way in which they were implemented in the second order.

We should use commissions as a means whereby we demonstrate

to the world what it is we are fighting so valiantly to preserve.

I was talking with a lawyer yesterday from Human Rights First

about the Hamdan decision and my testimony in this hearing, and

she made a comment to me that I thought was very profound and

compelling, which was that Hamdan was not—the Hamdan decision was not a revolution, it was a return. It was returning us to

where we should be. It shouldn’t have been a shock, it should have

been ho-hum. It was return to business as usual.

The United States stands for the rule of law, and we have for

years. It is not a rule of law if you only apply it when it is convenient. It is something else. For too long this has been a discussion

between the executive branch and the courts, and it is time, as you

know by conducting these hearings, to return the conversation to

the proper forum, which is to say Congress.

If Hamdan stands for anything, it stands for the proposition that

Congress has to engage thoughtfully and deliberately in these

issues. There are those who advocate the Congress simply reaffirm

what the President did prior to Hamdan with military commissions. I think that would be a dramatic mistake. There are those

that would say we should start out and pull out a clean sheet of

paper and start writing. I think that is not the easy way to do this.

This can be easy, and I mean E-A-S-Y. It can be easy. On every

bookshelf of every U.S. military lawyer stationed anyplace in the

world sits a burgundy soft-covered book. That book is the envy of

every armed force on the face of the Earth. It contains the Uniform

Code of Military Justice and the Manual for Courts-Martial. We

should use that as the model.

I am glad that the prior witnesses have talked about the

strength and the beauty of the Uniform Code of Military Justice

and the Manual for Courts-Martial. Those documents can be modi-
12

fied in such a way as to avoid the list of horribles that have been

listed. Article 32 can be modified or eliminated.

I agree the media talks about it generally as the military equivalent of the grand jury investigation, and that is not even close. Article 32 is so much more than the grand jury investigation. The

modifications—and I don’t want to use the word relax, relaxing the

UCMJ or the rules of evidence—the modifications to the UCMJ and

the military rules of evidence and procedure have to be very narrow, they have to be very specifically tailored, they have to be justified, and if those things are done, I don’t think any court is going

to have any problem with using the UCMJ and the Manual for

Courts-Martial.

We decided, this Nation decided, early on that this was going—

we were going to deal with terrorism as a war rather than as a

criminal activity, and I think that was a good decision, but that in

itself is a new paradigm, and what we have done is say in this war

we are now going to start prosecuting people. We didn’t prosecute

Hitler’s driver or bodyguard and probably wouldn’t have if we had

captured him. This is different. We are taking people who are coming in off the battlefield, and rather than just holding them, which

we could do, we want to prosecute them. That is fine, but if we are

going to do that, we have to do it in accordance with certain rules

that are generally accepted as indispensable by civilized people.

I am proud to be a lawyer. I think our system of justice defines

how good this country is. I think that we have the opportunity now

to demonstrate to the rest of the world what that system looks like,

and, with some minor modifications to the UCMJ, we can do that.

We shouldn’t reverse-engineer the commissions, assuming that

everybody is guilty, and then create a commission that is geared

to proving that point. We have to start at the beginning. And I

would suggest that we do that with the Uniform Code of Military

Justice.

Thank you, sir. I look forward to your questions.

The CHAIRMAN. Thank you very much, Admiral Hutson.

[The prepared statement of Admiral Hutson can be found in the

Appendix on page 96.]

The CHAIRMAN. Gentlemen, let me ask you to do something that

is a little unlawyerlike, but I think to kind of tee the ball up here

for the committee. Give me a one-liner, what did you think

Hamdan told Congress? Think about that a little bit. If you can

give that to us in one line, what do you think?

Mr. Bradbury.

Mr. BRADBURY. I guess the one line, Mr. Chairman, I would say

is that it is up to Congress now to design the procedures for military commissions and make the decisions as to what makes sense

in a trial, in an al Qaeda terrorist versus a trial of a U.S.

servicemember. Those are two different things. It is up to Congress

to decide, and we are here to work with you to make that happen.

The CHAIRMAN. Mr. Dell’Orto.

Mr. DELL’ORTO. Mr. Chairman, if I were to try to condense this

into a very short answer as you have asked me to, I would say

that, in slightly modifying what Mr. Bradbury said, the Supreme

Court apparently found no underlying flaw in the commission proc-
13

ess as established. It simply said the President did not consult with

the Congress.

We have been many, many years in the process of trying to try

the detainees who we believe have committed war crimes. All Congress needs to do, assuming it has taken the opportunity to review

the commission process as it is currently configured, is to ratify

that process, and we can move on very, very quickly. And that is

what I think the Supreme Court has signaled to this Congress.

The CHAIRMAN. So it was a requirement for the participation of

Congress with the executive that was the essence of the opinion.

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

The CHAIRMAN. Mr. Olson.

Mr. OLSON. I believe the Supreme Court said that Congress

needs to approve the method of formation and the procedures to be

used with military commissions, but that judges will retain jurisdiction to second-guess the execution of those decisions in every

case; and that when this Congress said no court shall have jurisdiction to hear or consider habeas corpus applications filed by the detainees in Guantanamo, Congress didn’t mean what it said; and

that as long as that judicial jurisdiction to second-guess military

decisions exists, we will have the judiciary participating in the conduct of military operations wherever they occur. And that gave this

Congress an opportunity to say again what it tried to say in the

Detainee Treatment Act.

The CHAIRMAN. Thank you.

Rear Admiral Hutson.

Admiral HUTSON. I think that they were saying to constitute a

court that is consistent with universally accepted judicial guarantees.

The CHAIRMAN. Okay. Just to take that last description by Rear

Admiral Hutson, if you look at Geneva Article 3, Common Article

3, and it talks about regularly constituted court, that is presumably

the product that would be—if we put together a body of law to govern these procedures, that would satisfy those particular words in

Article 3; is that what you are talking about, Admiral Hutson?

Admiral HUTSON. Yes, sir. I think if this body creates the court,

it is regularly constituted.

The CHAIRMAN. Then you have spoken, Rear Admiral Hutson,

about standards that are manifest in the Uniform Code of Military

Justice, basically standards of fairness for defendants’ rights. Do

you agree that the exigencies of the battlefield would reasonably

reduce the scope of those rights, or do you think that the full rights

of the UCMJ should be afforded or that the base of the UCMJ

should be used? I am trying to understand precisely your position.

Admiral HUTSON. Absolutely. The exigencies of the battlefield

and war on terror would necessitate—Article 3 didn’t come down

from Mount Sinai on a stone tablet, but there are guarantees that

are embedded in the Uniform Code of Military Justice that comport

with those judicial guarantees generally accepted, and I think

those are the presumption of innocence, independent judiciary, all

of those kind of things; facing your accuser, knowing the evidence

consistent with military rule of evidence 505 which talks about how

to deal with classified evidence in a very complete way, so that,

yes, sir, I believe there are modifications that have to be made.
14

The CHAIRMAN. What I am reminded of is we went through the

Guantanamo exercise when those—all the issues surrounding

Guantanamo were elevated to a status where it was reviewed

strongly by the committee, and what struck me fairly profound was

a fairly high number of folks out of the 310 or so that were released were proven to have returned to the battlefields and taken

up arms against our troops.

And that one thing that you said a minute ago caught my attention was—and tell me if I am wrong, but you said to the effect that

there is nothing wrong with warehousing some of these people over

a period of time to keep them from returning to the battlefield. And

you understand the enormous pressure that was put on the Administration to prosecute or release. Did I understand your statement

correctly?

Admiral HUTSON. Well, I would modify your description of it

slightly. I believe that the United States can capture terrorists and

warehouse them. I think it is going to create—we are going to run

into a diplomatic wall and a political wall and a pubic relations

wall before we run into a legal wall. The war on terror is certainly

different in the sense that it is going to go on for probably a much

longer period of time, and that is going to cause people some problems.

All I am saying is that we can’t presume that they are guilty and

create a system to demonstrate that fact.

The CHAIRMAN. Okay. I am reminded, I think one of the early

cases that we learned in law school, I think it was Davis v. Mississippi, where a person murdered an elderly lady and left his fingerprints on the window sill, and the fingerprints later were

matched up with a person who had been taken out of an unconstitutional lineup. And so that was one of the cases where it was fairly clear that the exclusionary rule was intended to apply even

though guilty people would go free. But that was a pain that our

society was willing to suffer and a loss that we were willing to suffer to let the murderer walk out the door to ensure and discipline

our system so that the appropriate procedures were followed.

In this case the pain that we might see is an enemy combatant

returning—if he can’t confront his accusers because the sergeant

who said, that guy was manning the rocket-propelled grenade, that

sergeant may be dead or unavailable to be—to confront the accuser, so—or to confront the accused, so the accused goes free. The

pain would be manifested and reflected in perhaps dead Americans

on the battlefield.

And so the question becomes on your scale of balancing this need

for basic rights for the accused with our basic need to be secure

and to protect our soldiers, where do you think we should move

that forward? What are your thoughts? Hearsay evidence, right to

confront accuser, that type of thing. I would like to ask all the

members of the panel that. In fact, go ahead, Admiral Hutson, and

move right down the panel.

Admiral HUTSON. I would say, sir, that the evidence would have

to have some apparent authenticity and validity in order to be introduced. You can’t just let in everything. There has to be some

sort of standard, and apparent authenticity and validity may be a

reasonable standard to use.
15

If you have fingerprint evidence in your example in Davis, if you

have fingerprint evidence, but the chain of custody isn’t perfected,

I wouldn’t have any problem introducing that in a military commission. I would have a problem introducing it in a court-martial of

a U.S. troop, but acknowledging your acknowledgment of the difference of the battlefield, that would probably be acceptable to me.

But I do think, Mr. Chairman, that there is a balance, and there

may have to be to some extent a sacrifice, maybe not as dramatic

as the case you point out in Davis, but there may have to be a sacrifice if we are going to do this in a way that we are proud.

The CHAIRMAN. Mr. Olson.

Mr. OLSON. I yield to Rear Admiral Hutson and Mr. Dell’Orto

and Mr. Bradbury with respect to the specifics of how those judgments might be made. The point that I think is important is that

when you are fighting an enemy like this—one that defies all civilized rules, that intends to be as savage as possible to the most

vulnerable people in the world, that has no scruples or principles,

and that will go back every time to the battlefield, maybe not to

the battlefield, but to a synagogue or a school bus—we have to

have some flexibility built into the system so that the President as

Commander-in-Chief and military officials down the line have some

flexibility.

You talked about the exigencies of the circumstances. I think

there has to be flexibility and freedom to exercise discretion by the

executive. We accord a presumption of some discretion, some deference to the Federal Communications Commission (FCC), to the

Environmental Protection Agency (EPA), to the Army Corps of Engineers in court decisions, but there was no deference to the President’s judgments about the practicalities of military commissions

by the Supreme Court in the Hamdan decision, so that when you

legislate in this area, if you do, I would urge Congress to make

sure that there is room for discretion, depending upon the circumstances of the particular case, and that exercise of that discretion will be accorded some deference by any agency or court reviewing it to understand the circumstances, because the price that military officials will pay if their judgments are second-guessed and not

accorded some deference later on in court may be very, very high.

Someone may be prosecuted for a war crime for exercising perfectly

reasonable judgment with respect to the putting on of a case with

respect to an enemy combatant or capturing one.

The CHAIRMAN. Thank you.

Mr. Dell’Orto, any comments?

Mr. DELL’ORTO. Mr. Chairman, I had the privilege of serving on

active duty for almost 28 years, the first 8 years as a field artillery

officer and the balance of my career as a judge advocate officer, and

spent time mostly in the criminal law arena. Our system as it currently exists, the court-martial system, is a fantastic system, and

it has come to unfold, develop, evolve over the years at the urging

of Congress because it has taken very good care to ensure that that

system has been developed in a way that will provide the greatest

amount of protections to our soldiers.

But I don’t want a soldier, when he kicks down a door in a hut

in Afghanistan searching for Osama bin Laden, to have to worry

about whether when he does so and questions the individuals he
16

finds inside, who may or may not be bin Laden’s bodyguards or

even that individual himself, to worry about whether he has got to

advise him of some rights before he takes a statement. I don’t want

him to have to worry about filling out some form that is going to

support the chain of custody when he picks up a laptop computer

that has the contact information for all manner of cells around the

world while he is still looking over his shoulder to see whether

there is not an enemy coming in after him.

I want us to be able to do what the President said we should,

guarantee a full and fair trial to these terrorists that would include

such things as the presumption of innocence at the outset of the

trial, that would include a standard of proof that puts the burden

on the prosecution that requires that he be found guilty by proof

beyond a reasonable doubt, that provides him with counsel, that

does so many things that our system of justice in the United States

calls for. And I would say that the military commission procedures

that have been established to date do all of those things in a way

that takes into account what practicalities, practical difficulties,

are associated with trying to gather this evidence around the world

in various and sundry places that will place great limitations on

our ability to adhere to the standard, the standard rules that we

employ in our courts-martial process and in our civilian court process.

I think we have already done that, and, again, that is why I urge

that particular process as the starting point to get to the

Congress’s approval of the procedures that can be used to satisfy

what the Supreme Court has told us and the Congress need to be

done.

The CHAIRMAN. Thank you.

Mr. Bradbury, where is that balance?

Mr. BRADBURY. Mr. Chairman, I think the fundamental point, I

think, is simply that the procedures have to be flexible consistent

with fundamental fairness. I think there is a lot of flexibility in

light of the circumstances of the apprehension of these folks, the

kinds of evidence that is necessary to convict them, and the military necessity. And so, for example, running down some of the

things that are provided in the UCMJ that I think need to be adjusted or eliminated in the context of a military commission proceeding, the Article 32 investigation that precedes a prosecution

needs to be off the table and needs to be done through a different

means.

The right to counsel that is given, under the UCMJ it is given

when the individual is first suspected of having committed a crime,

and he gets counsel right away and gets Miranda rights right

away, that is inconsistent with simply needing to question individuals to get intelligence from them.

Hearsay rules. International tribunals such as the international

criminal tribunals for Yugoslavia and Rwanda allow the use of

hearsay evidence. It is recognized that it is simply as a practical

matter necessary when you talk about crimes that have occurred

in far-flung places of the world. You are not going to be able to get

every witness in life for testimony. You are going to have to allow

the use of hearsay evidence where the fact-finder determines it is
17

probative, it is sufficiently reliable, and it is not outweighed by

undue prejudice. So you need that flexibility in hearsay rules.

Classified evidence. We absolutely have to carefully control exposure of the terrorist detainee to classified sources and methods.

There are ways to do that that the commission can police to ensure

fundamental fairness, using summaries, using substitutes. We also

in the current military commission process would allow the detainee to have counsel cleared in to get access to classified information that is actually going to be used as evidence. But we think you

can do that in a way that is consistent with fundamental fairness,

and that should be something that a court on review, for example,

through the Detainee Treatment Act, the standards of review,

would be able to review after the fact.

So those are a few of the critical things that absolutely need to

be flexible in order to make a military commission process that has

historically worked work in this context.

The CHAIRMAN. Thank you, gentlemen.

The gentleman from Missouri, Mr. Skelton.

Mr. SKELTON. Mr. Chairman, thank you.

I am going to be brief. But I think we should remind ourselves

the purpose of all this is protection of our young people in uniform.

At the end of the day, that is really what we need to keep in mind,

to devise a system that will do that.

The Chairman said something about a one-liner. Let me ask this,

if this is not consistent. We in Congress must provide a regularly

constituted court, which could be court-martial, UCMJ, Federal

court, or a specially designed Federal court or a tribunal; second,

a minimum of due process under the Geneva Convention Common

Article 3; and third, Congress must authorize departure from the

courts-martial or Federal rules and procedures in the event that

military commissions are established.

Did I leave anything out, gentlemen? Isn’t that really what the

Court said, those three items?

Mr. BRADBURY. I am not sure, Congressman, the Court spelled

it out in exactly the way you have. I think that is consistent with

what the Court held, and I think if Congress were to enact a statute that does what we have described here, it would satisfy all of

those requirements.

Mr. SKELTON. That is my question.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank the gentleman.

The gentleman from Colorado, Mr. Hefley.

Mr. HEFLEY. Thank you, Mr. Chairman. I think one of the struggles we have, and I think you referred to it, and I think many of

us have struggled with this, is this question of whether it is a

crime or whether it is war or whether it is a crime during times

of war. And as one of you mentioned, in the Second World War, we

didn’t try the average soldier on the battlefield. We kept them, we

put them in concentration camps, and we kept them until the war

was over, but we didn’t try them. And I guess I would ask, what

should we be doing with these people regardless of their rank in

the bin Laden hierarchy? What should we be doing with them?

Should we be warehousing them, should we be keeping them in the

concentration camp like in wartime, or should we be trying them
18

like they were criminals? I don’t have much—a good feeling about

what we ought to do on that.

Mr. DELL’ORTO. Congressman Hefley, we certainly have the right

under the law of armed conflict, having captured combatants on

the battlefield, to detain them for the duration of hostilities. That

is long settled, recognized not only under the law of war, but by

our courts. We can detain them until the end of the conflict.

During World War II, as someone has already mentioned, we detained hundreds of thousands of lawful enemy combatants in various camps around the country. I wouldn’t call them concentration

camps. We had them at many of our posts and installations around

the country. We could have had some in Colorado for all I know.

Mr. HEFLEY. We did.

Mr. DELL’ORTO. I can remember buying a Christmas tree from

a former enemy POW at one of my military assignments in

Baumholder, Germany, who can describe his experience at one of

our camps at Fort Knox, Kentucky. He thought it was a great experience. He spent his time in captivity working in the mess hall

probably peeling potatoes or at the officer’s club. He thought—he

was fine with that, and he was very much a friend of our forces

over in Germany.

We did during World War II try some number of unlawful combatants, or, I am sorry, people who had committed war crimes,

Yamashita; the German hierarchy for the crimes that they committed that violated the laws of war. Now, if a lawful combatant, a soldier in the German Wehrmacht, during World War II shoots one

of our soldiers during combat, he has the immunity that goes along

with participating as a lawful combatant in a combat action. I

mean, that is what happens in war. You shoot him, he shoots you

or shoots at you, and he, because he is—assuming he is fighting

lawfully, wearing a uniform, reporting to a chain of command, follows the laws of war, carrying his arms openly, he is a lawful combatant, a privileged belligerent who is not going to be tried for his

lawful activities on the battlefield. But if he goes into a farmhouse

and lines up a bunch of civilians and shoots them, he has committed a non—those are noncombatants. He has committed a war

crime and is being subject to punishment for that. Or if he directs

that sort of activity as Yamashita did and takes no regards for the

consequences of what his soldiers do on the battlefield as they rape

and pillage, he is subject to trial for an unlawful—for his unlawful

acts.

What we have here are people who don’t wear uniforms. They

don’t carry arms openly. They don’t distinguish themselves from

the civilian population anyway. They don’t follow the laws of war.

They are without any discipline in the way they conduct their combat. They deliberately attack civilians. They behead people, they

mutilate people. And so they are in theory at all levels unlawful

combatants. We are—we have charged ten of those people and

probably have another several dozen others who are likely to be

candidates for military commissions because their activities rate—

are at such a significant level that we believe they should be tried

as war criminals under the military commission process, the process that we have had, or at least the tradition we have had, of conducting these sorts of tribunals throughout our history.
19

So I don’t know if that answers your question. It is a long answer, but I have tried to sort of put this in context.

Mr. HEFLEY. No, it is very, very helpful. Since these are unlawful

combatants, so many of them, maybe most of them, do the rules of

the Geneva Conventions apply? Because those were drawn up to

deal—weren’t they primarily—with lawful combatants?

Mr. DELL’ORTO. And those who are not part of the fight, so we

have the third Geneva Convention that deals with prisoners of war

that, like the people I described who were at our camps around the

United States during World War II, they would be covered today

under Geneva 3, and they would receive all sorts of rights.

Now, they could be punished for things that they did in the

camp. If they beat up a guard, they beat up another detainee, they

could be punished under our system for those acts, but they are not

going to be punished for their lawful activities on the battlefield.

Mr. HEFLEY. Thank you very much.

The CHAIRMAN. The gentleman from Arkansas, Dr. Snyder.

Dr. SNYDER. Thank you, Mr. Chairman, and thank you for holding this important hearing. I wanted to—we only have five minutes, so I am going to ask quick questions, maybe get quick answers.

Going along with what Mr. Hefley talked about, I will go to you,

Admiral Hutson, is it an accurate description to say that what we

are all dealing with today and the changes we are talking about,

the proposals are to deal with the legal system to be set up for

those going to trial; the Hamdan decision did not deal with those

detainees who are not going to trial? Is that an accurate description, Admiral Hutson?

Admiral HUTSON. Yes, sir. One of the reasons we are wrapped

around the axle about this is because we are trying to prosecute

people. That is the issue.

Dr. SNYDER. And what we all as the Congress and what Chairman Hunter is holding these hearings about is what changes are

we going to make for those that we are taking to trial? We are not

talking about changing processes now for those that are not going

to trial. Is that an accurate description?

Admiral HUTSON. I believe that is what the committee is about.

Yes, sir.

Dr. SNYDER. Mr. Olson, it is great to have you here. I don’t recall

you being before our committee before, but I tell you I want to disagree with you when you call for a restoration of the status quo.

I feel like—you know our good friend Gene Taylor here who lost his

home in Hurricane Katrina, and I think when you have something

struck down, you don’t want to build it back just the same as it

was status quo, you want to do it better. And I think we have an

opportunity to do better in terms of worldwide opinion.

I also want to comment or just make the comment I think two

or three of you in both your written statements and your statements here today talk about the problem on the chain of evidence

in a door-to-door search or a Miranda warning. I mean, who the

hell is saying that? Nobody is saying that. I mean, I have talked

to my Republican colleagues. I am not aware of anyone who is saying, gee, we are going to have to have the Miranda warnings in the

chaos of war, or we are going to have a real chain of evidence prob-
20

lem when people are passing this stuff along, being shot at, here

you have to sign here, Sergeant. Nobody is saying that. Let’s just

declare that as a red herring.

There is not going to be nothing coming from any Member of

Congress that says we are going to have Miranda warnings on the

battlefield or chains of evidence as we normally think of them

when we all watch Miami CSI. Those are red herrings. They are

not going—it is not going to be on the table.

I want to ask, last night I ran into Representative Butterfield,

who we all call Judge Butterfield because of his legal background.

I said, Judge, this stuff is complicated. And he said, no, it is not.

It is pretty easy. And then, Mr. Hutson, you came here today and

you said it is easy, and you spelled the word for us, E-A-S-Y, which

is helpful because we are House Members. We like to hear words.

And then you made it so easy because you attach—Mr. Chairman, just for our record, he—is this part of his statement that is

admitted to the record where he has proposed amendments? I want

to read this one section in which you are suggesting changes. It is

836, section 36; the title of it: The President May Prescribe Rules,

which is current law. And the addition you suggest—and this is the

new language you suggest. I am going to read it.

‘‘To the extent that the President considers it impracticable for

the regulations for military commissions and provost courts to

apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district

courts, the procedures in military commissions and provost courts

shall, subject to any applicable rule of international law and with

the exception of section 832 of this title (article 32), apply the principles of law and pretrial, trial, and post-trial procedures, including

modes of proof, prescribed for general courts-martial.’’

Well, the key part of that, if I am correct, Mr. Hutson, is that—

the lead-in phrase, ‘‘To the extent the President considers it impracticable,’’ is what you are saying there that if the President determines with the advice of these gentlemen at the table—of course

we are not going to have Miranda warnings on the battlefield, we

are not going to have strict chains of custody for evidence. Describe

it. It seems to me what that provision that you are suggesting we

adopt deals with the concerns of the gentleman to your right. Is

that a fair description?

Admiral HUTSON. Yes, sir. It is a fair description, and we try to

track basically the thrust of the Hamdan decision. With respect

when Mr. Bradbury used the word ‘‘flexible,’’ it kind of sends a chill

up my spine because it just sounds too flexible, but I think that if

the President is saying that it is impracticable to do this for the

following reasons, Article 32, Article 31, those kinds of things, he

can make that determination, report it to Congress, and we will

move on, and we will actually get some trials, we will actually complete this job.

Dr. SNYDER. May I ask one quick follow-up, Mr. Chairman?

And what you are suggesting is that these would be—the President’s rules would be not on a case-by-case basis, but——

Admiral HUTSON. No.

Dr. SNYDER. Lay down a report to the Congress.

Thank you, Mr. Chairman, for holding this hearing.
21

Mr. DELL’ORTO. Mr. Chairman, may I respond?

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

Mr. DELL’ORTO. Congressman Snyder, we have been looking at

this particular question, as you can imagine, and let me give you

some of our preliminary assessments again. These are preliminary,

and so we have got—we do have much more work to do.

To do what you suggest or what Admiral Hutson suggests, preliminary assessment would indicate that 110 rules for courts-martial, 73 military rules of evidence, and somewhere between 145 and

150 articles of the Uniform Code of Military Justice would require

some form of amendment to permit us to take the existing structure and adapt it for military commission process. That is a gutting

of the Manual for Courts-Martial and the Uniform Code of Military

Justice.

If you look at the current structure that we have in the military

commission order, comments from the President’s military order,

we have a process there that we believe comports very, very well

and compares very favorably with both the International Criminal

Tribunal for the Former Yugoslavia and the International Criminal

Tribunal for Rwanda.

To the extent we have to do this in order to approach or to satisfy the Common Article 3 requirement that we have a system that

comports with these international norms of indispensable rights

that the citizens of the world would be happy with, then we believe

that if our structure as it is currently laid out matches what the

international community has already said is workable, we are already there or just about there, and the minor tinkering that would

have to take place with respect to the existing structure for military commissions is, in my estimation, and as much as I have to—

I hate to disagree with Admiral Hutson, a much easier process to

undertake than to try to, as I described it, gut the Uniform Code

of Military Justice and the Manual for Courts-Martial.

Dr. SNYDER. And I think that is the kind of discussion we will

have over the next few weeks and month or two, and I suggest, Mr.

Dell’Orto, the Chairman will want you to provide us your analysis

of that in the way we can all analyze it just like we have Mr.

Hutson.

Mr. BRADBURY. Mr. Chairman and Congressman Snyder, I just

wanted to add one point, and that is that I don’t think that the implications of the Court’s decision in Hamdan are limited exclusively

to the question of procedures for military commissions, because as

I tried to lay out in my testimony, the Court’s ruling on Common

Article 3 was an interpretation of the scope and application of that,

of Common Article 3, and contradicted or superseded the President’s determination in 2002 that Common Article 3 does not

apply. The Court essentially said this is not an international conflict, and therefore Common Article 3, which in the past has been

read to apply only to internal conflict, civil wars, if you will, now

has general application in our war with al Qaeda, and that has implications and ramifications beyond simply the procedures for military commissions.

The CHAIRMAN. Okay. Any other responses?

I thank the gentleman from Arkansas.
22

The gentlelady from Michigan, Mrs. Miller.

Mrs. MILLER OF MICHIGAN. Thank you, Mr. Chairman. And

thank the witnesses for all appearing before the committee today.

We appreciate your service to the Nation and appreciate your testimony here today.

I have been trying to listen to this. I am not an attorney. There

is a lot of legalese going on here. I don’t even have a college degree,

but I am one of the few Members of Congress. I am not proud of

that, but that is just the way it turned out in my life, but I think

I am a reflection of middle America.

I will tell you, listening to the Supreme Court ruling, it just

struck me as being incredibly counterintuitive, and when we think

about the type of enemy that we are facing today, a new type of

enemy, one that hides in the shadows, one that preys on the innocent, one that wants to kill us, and it has been—they have been

categorized as—how we need to be civilized, these people do not

meet the basic standards of civilized human beings. I think it is

very difficult for us as Americans to even get our mind around the

concept of a suicide bomber teaching a young person to be a suicide

bomber and what that means. I mean, I don’t consider that to be

civilized behavior.

And as we have talked today about what the Supreme Court ruling actually says, that we need to have congressional participation

in this, perhaps this could be very easily handled. As you mentioned, it could be easy. Could it be as easy as what Mr. Dell’Orto—

I hope I am pronouncing your name correctly—has suggested, that

we actually just ratify what the executive branch and the DOD has

done and move on? That is my question.

Mr. DELL’ORTO. Ma’am, I believe that that is—that would be a

very desirable way to proceed.

Admiral HUTSON. You might not be surprised to hear that I disagree with respect to Mr. Dell’Orto. I think that—and I don’t disagree with your characterization at all. It goes back to what Congressman Hefley pointed out, though I think—which is that we

have got the war on terror, and then on the other hand we are

talking about prosecuting people. And what some of my colleagues

here at the table have said—and to some extent, the way you

phrase the question flies in the face of what Mr. Dell’Orto said earlier about presumption of innocence, you know. He said—we need

to ensure that there is a presumption of innocence if we are going

to prosecute people. Remember, I am saying that we don’t have to

prosecute them, but if we decide that we are going to prosecute

them, then we have to afford them those rights, which include not

presuming that they are cutting everybody’s heads off and they are

suicide bombers, but that we just buy into this presumption of innocence deal, and if we can do that, then we can create a system

in which we will really be able to prosecute. But I think that if the

opinion—and particularly Justice Kennedy’s discussion of the

present or the pre-Hamdan commissions makes it pretty clear that

there are some legal difficulties with it that would make simply

this body simply endorsing what had been done before, although

you would fix the regularly constituted part of it, I think you are

going to run headlong into the indispensable guarantees part of

what the Court said.
23

Mr. OLSON. I think it is a very, very good question. It is a very,

very sound basis upon which to resolve this problem. Either, as Mr.

Dell’Orto said, you start with a massive gutting of the Uniform

Code of Military Justice, which was not created for this type of situation at all, it was created for our servicemen and women and has

all sorts of rights in there. It does have the equivalent of Miranda

rights in it, or the right to be cautioned that statements may be—

either you start with something that is utterly unworkable and inappropriate and not designed for this process, or you start with

what the President carefully and thoughtfully put together that

was designed with the experts in the Defense Department to deal

with these circumstances, and then if there is something wrong

with it, add something to it.

So that is—that I do think is the right way to go. It makes perfect sense. The only two things that the Supreme Court found that

specifically talked about—anyway, that was wrong with the procedures was a quibble with respect to the standard for the admissibility of evidence. My own personal opinion is that what the President had outlined in the commissions made perfect sense, given

battlefield conditions and the difficulty of obtaining evidence and

that sort of thing, and the right to the accused—right of the accused to see sensitive national security classified information, that

would be insane, in my judgment, to give to terrorists.

So that the two things the Supreme Court found wrong that I

was able to read in the opinion anyway are things that I think you

would agree the President got it right. But if there are some things

wrong with it, then that is the platform, that is the basis upon

which to start.

Mrs. MILLER OF MICHIGAN. Thank you very much.

The CHAIRMAN. Okay. I thank the gentlelady.

The gentlelady from California, who has spent a lot of time on

this issue, Ms. Sanchez.

Ms. SANCHEZ. Thank you, Mr. Chairman, and thank you, gentlemen, for being before us today.

I have—I did begin to work on this several years ago after I went

to GTMO and took a look at what was going on, and actually I

have taken a lot of time to talk to the prosecutors who have been

at GTMO and have been working through this, and, of course, I

have some legislation issue.

As you will know, I introduced in 2004 and again in 2005 and

brought it up in our authorizing meeting, and at that meeting I

said, you know, after June in the Hamdan case we are going to be

visiting this. So here we are.

I think that Justice Kennedy and Justice Breyer got it right

when they said nothing prevents the President from coming back

to Congress to obtain legal authority for military commissions to

proceed. And having looked at the Federal courts and looked the

courts-martial and the UCMJ, I do think this is the place to put

it in to constitute a commission in which to do this.

My questions have to do directly with some of the—two of the

areas, the area of evidence and the area, if we get to it—and I

guess we are going to have a second round, maybe I will get to the

other later, but here are some of the questions I have. I am going
24

to read a couple of them and then have—you will know who gets

to answer to these.

In the oral argument before the Supreme Court, Mr. Hamdan’s

defense counsel argued that military commissions weren’t necessary because he said that his—that Hamdan could be tried by

regular courts-martial. Mr. Dell’Orto and Mr. Bradbury, if you are

correct in your assertion that routine evidence rules would make

it impossible to prosecute most al Qaeda cases in regular courtsmartial, and I believe you are correct in that, wouldn’t you expect

that Mr. Hamdan’s first motion in a court-martial would be to suppress most of the government’s evidence? And wouldn’t such a motion be made by any competent defense counsel, and wouldn’t it

likely succeed in gutting the government’s case?

It seems to me that this would be the practical effect of sending

these types of cases to court-martial. Would you agree and maybe

expand a little on that? And let me give the other question that I

have, and then maybe you can all answer to this.

Again, the rules of evidence, all of you, including Admiral

Hutson, accept the view that different rules of evidence are required for war crimes cases. The usual reasons cited for this are

the deviation from gathering, etc. The evidence in war crime trials

would likely include hearsay, evidence without a clear chain of custody, and interrogation products obtained without Miranda warnings and other safeguards against coercion. And in this I would say

to my colleague Dr. Snyder, red herring might be when we talk

about Miranda rights on the battlefield, but when you look at Miranda being required to be used during all the years of interrogation of a suspect, I think then it is not really a red herring, and

certainly hearsay is not.

So a single rule of evidence in military commission order number

one is that evidence shall be admitted if the evidence has probative

value to a reasonable person. This standard is very similar to the

role of admissibility used by the International Criminal Tribunal

used by the former Yugoslavia which states that a chamber may

admit any relevant evidence which it deems to have probative

value. And, of course, the International Criminal Tribunal for

Rwanda uses the nearly identical standard as well.

In view of the similarity of these standards, there seems to be

an international consensus that war crime trials require broader

and different approaches to admissibility of evidence. So the questions would be, what additional rules regarding admissibility or exclusion of evidence are essential to ensure reliable verdicts in military commission cases? And if it is commonly accepted that coerced

admissions are not reliable and therefore lack probative value, do

you believe that this standard, probative value to a reasonable person, is sufficient to exclude evidence derived from coercive interrogations? And how would you fashion a rule of exclusion that prohibits admission of statements obtained through coercive interrogations?

Mr. DELL’ORTO. You probably haven’t given me enough time to

think about the approach I would take as a defense counsel to the

Hamdan. But certainly I would—I would challenge the admissibility of any statement he has made.
25

For one of my first challenges, one of my first motions would

have been to dismiss on the motion of a lack of a speedy trial.

Hamdan has been in our custody for three years, four years, whatever it has been at this point. The military—the rules for courtmartial require that he be brought to trial within 120 days, if I recall correctly—again, I am going back some period of time—of the

time that he was put in custody, and so that is one of my very

early motions I would make to get my client out of jail.

So I see great problems. And again, if I were quicker on the

draw, I could probably give you four, five, six, or seven, eight or

nine other motions I would be dropping very quickly in that case

based upon rules of evidence, rules of courts-martial.

Let me ask some of the others to answer some of the other questions, and I will get back to you to follow on, and to be quite honest, I had an answer to the third part of your answer, but I can’t

recall right now.

[The information referred to can be found in the Appendix beginning on page 115.]

Ms. SANCHEZ. Thank you.

Mr. BRADBURY. Congresswoman, I would say I would agree with

your description of what a defense counsel would do in Hamdan’s

case or another one of these cases if brought in the construct of the

UCMJ. I mean, absolutely that is what I think would happen. All

those motions would be interposed, and chain of custody of evidence, and all of those issues that would impede a trial under the

UCMJ framework would have to be addressed, and it would be

very difficult to go forward under those conditions.

I wouldn’t say that the standard needs to be that none of these—

that prosecutions would be impossible. I think the standard is that

it is as a general matter a judgment. In this case it would be a

judgment by Congress working with the Administration and framing legislation, a judgment that the use of those procedures is impracticable as a general matter in these kinds of cases.

As to the coercive statements point, first of all, as the rules of

the military commission process currently in place make clear, and

as our treaty obligations suggest, we do not use as evidence in military commissions evidence that is determined to have been obtained through torture. That is simply not admissible if it has been

obtained through torture. And that is consistent with our treaty obligation. It is a worldwide policy for the United States, and it is reflected in the rules currently for the military commissions.

But when you talk about coercion and statements obtained

through coercive questioning, there is obviously a spectrum or gradation of what some might consider pressuring or coercion short of

torture. And I don’t think you can make an absolute rule. Again,

I think it needs to be a judgment that is made by the fact-finder,

and the way that that is addressed in the Detainee Treatment Act,

which addressed judicial review of the combatant status review tribunals, those tribunals that judge that the detainee is an enemy

combatant at the outset of the process, the way Congress dealt

with that was to say that the commission is to weigh the probative

value of that evidence, basically to weigh the probative value

against the undue prejudice that might occur to the process from
26

the use of evidence that may have been obtained through coercion.

It didn’t create an absolute exclusionary rule.

I think an approach like that is certainly more appropriate because arguments will always be made—when you don’t have something like Miranda rights, arguments will always be made that, oh,

the questioning was coercive, even when we can agree it doesn’t

amount to torture, it doesn’t—it doesn’t violate some fundamental

standard of conduct that might apply. So you need—again, it is an

area where some flexibility is needed.

Ms. SANCHEZ. It sounds to me like you are saying that the minimum value would be the probative value to a reasonable person,

which is what we see reflected in the standards, quite frankly, of

the other tribunals that we see around the world with respect to

war crimes.

Mr. BRADBURY. Yes. I think that is right.

Ms. SANCHEZ. And I think it is very important for us to understand because someday we will catch Osama bin Laden, and then

we have to decide how we are going to try him. And this is why

these hearings and what we do becomes so important.

Anybody else?

Admiral HUTSON. Yeah. If I may, I would draw a bright, clear

line with coercive evidence for all the reasons that we draw that

bright clear line having to do with the probative value of it, but

also having to do with inhibiting interrogators or police, civilian

context, from engaging in that kind of activity. I think that that

is an important thing, and I also think that it is important for the

reputation of the United States internationally.

As I am sure you know, there is a raging debate with regard to

the impact of non-U.S. law on the United States. I kind of fall in

the middle of that. I guess what they are doing in international tribunals is interesting to me, but certainly not determinative. I

would add to the probative value, it has to—you know, it has to

have that at least, but I would add apparent authenticity and validity. There has got to be some standard by which the evidence is

judged and admitted. We can’t just throw everything in there and

then let the finder of fact sort through it. That is the reason you

have a judge, which is one of the reasons that using a court-martial

kind of system with modifications has value, I think.

The CHAIRMAN. The gentlelady could reserve. We will have the

responses to the last—her last question here in the second round

if we could, and let’s go to the gentleman from Texas, Mr.

Conaway.

Mr. CONAWAY. Thank you, Mr. Chairman.

Mr. Dell’Orto or Mr. Bradbury, could you describe for us what

the President’s plan is that you simply want us to put into law?

And also, what is the legal phrase for applying—creating a crime,

and then say you were committed before the law was put in place.

There is a legal phrase that I have lost.

Mr. BRADBURY. Ex post facto.

Mr. CONAWAY. There you go. Would these changes—ex post facto

apply to the detainees in Guantanamo if we do, in fact, make these

changes in the law?

Mr. BRADBURY. If I could say yes, they would apply, and that

would not be an ex post facto, because ex post facto concepts go to
27

the substance of the law, not by the procedures by which you are

tried. So it would not be—if you are creating a brand-new crime

and saying now people are subject to a brand-new crime, you can’t

apply that ex post facto to a U.S. citizen under our Constitution.

But here we are not talking about creating the substance or elements of crimes. We are talking about the procedures that would

go into the bodies that would try those persons for those crimes,

which are war crimes, crimes under laws of war.

Mr. CONAWAY. Okay. Would one of you describe the President’s

current plan?

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

Mr. CONAWAY. No. Oh, no, I am sorry. The tribunal that was

struck down that you are saying we need to codify, would you describe for us what that tribunal currently looks like had it not been

stuck down?

Mr. DELL’ORTO. The current tribunal that has been struck down?

Again, it has many of the fundamental—it would be very recognizable to most people in terms of many of the things that are already

incorporated. You know, we have a presiding official who is a military trial judge, an experienced trial judge, the same judge who

would be trying cases in our courts-martial process.

We have the rule of evidence that we have already described,

which is a very—which is a more general rule than we are used

to in our civilian practice that is—admits a broader swath of evidence.

We have appellate review in the review panel that has—of decisions that come out of the tribunal that includes four very distinguished individuals, Judge Griffin Bell, former Attorney General of

the United States. We have Secretary—former Secretary of Transportation William Coleman. We have Judge Biester, who is a trial

judge in Pennsylvania, and we have Chief Justice Frank Williams,

who is the Chief Justice of the Rhode Island—Rhode Island Supreme Court as the four members who constitute the review panel

of the appellate court, if you will, of the results of these trials.

We have provisions for interpreters. We have provisions for ensuring that the accused is presented the charges which he will be

facing well in advance of trial.

We have provisions of assignment of military counsel, the same

counsel—the same type of counsel who would defend our soldiers,

sailors, airmen and marines and coastguardsmen, and they are

courts-martialed, and they are defined as military defense counsel

for the accused detainees. The accused detainee has the right to obtain a civilian counsel, assuming that civilian counsel meets certain

qualifications that are set out in the rules. We have a requirement

that for any charge for him to be convicted. Two-thirds of the members who sit on the court panel, which includes the presiding officer

and up to, I guess, six other members who would be military officers just as we have in our court-martial process, would be the

ones who would adjudicate guilt or innocence, and a judge’s sentence ought to be reviewed by the review panel—the appointing authority of the review panel when all of that is done.

I don’t know if that gives you a sense of sort of the basic framework. I could go on with much more detail if we had more time,

Congressman.
28

Mr. BRADBURY. I would say, Congressman, that fundamentally

these are procedures that are built on past military commissions

that have historically and traditionally been used by the United

States during times of armed conflict. And the use of military commissions and procedures like that go all the way back to George

Washington when he was general during the Revolutionary War,

and it has been a tradition through armed conflicts in our Nation’s

history of using traditions like this, although these commissions

add additional procedural protections that have not been in past

commissions.

Mr. CONAWAY. Okay.

Mr. DELL’ORTO. And I would also add, Congressman, since I was

there at the start and took part in much of the drafting process,

that we looked at the Manual for Courts-Martial as we were putting this together to borrow from it many of those things that are—

that are sort of at the foundation of the UCMJ and the Manual for

Courts-Martial.

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

The CHAIRMAN. Thank the gentleman.

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

Ms. TAUSCHER. Thank you, Mr. Chairman. Thank you for being

here.

I think we all can stipulate that we are with Common Article 3

interested in dealing with the potential of finding Osama bin

Laden and being able to bring him to trial in a trial that we all

understand is one of transparency, and where evidence potentially

is gathered, and where we can find an adjudication process where

the world sees Osama bin Laden put to trial in a fair way and a

timely way, where he is potentially found guilty, and then he has

a sentence that is commensurate with his heinous crimes. And I

think that is the place we all have to start from.

As my great colleague from California, Ms. Sanchez, has said, we

have to kind of look to the future as we look into the past as we

try to preserve all the great things that we have. And I am personally for looking at the reforming of the UCMJ and making sure, as

Admiral Hutson has suggested, that we have things that have

worked and build on them and move forward.

I think one of everyone’s concerns is this issue of—that we are

hearing bantered around in the press that potentially classified information would have to be made available, as both Mr. Dell’Orto

and Mr. Bradbury have suggested, to defendants, and that, of

course, would create a national security crisis for us. But I think

we—the analysis that I have been shown is that both the Classified

Information Procedures Act, CIPA, and the military rules for evidence for courts-martial, which is modeled after CIPA, protect the

disclosure of any classified information whose disclosure would be

detrimental to national security. Apparently this would apply in

anything that we do going forward that would include reform of the

UCMJ for potential military commissions. Do you all agree?

Mr. DELL’ORTO. Congresswoman, let me make two brief comments on that. One generally. When we try these defendants in

these commissions at some point relatively soon, we must be mindful of the fact that we are trying them while the conflict continues.

It is not as though we were conducting these trials at the end of
29

World War II where much information that might have been highly

sensitive, highly classified, that we certainly did not want to reveal

to the enemy, would not be as critical a piece of information. Today

if we are in the classified arena with some of this information,

whether it is information collected through national technical

means or sensitive sources and—sources that we have on the

ground in other countries, that is—those are key ways that we are

getting information about this particular enemy.

Ms. TAUSCHER. But that is the challenge of the asymmetry of

this fight.

Mr. DELL’ORTO. Exactly. And we can’t let him use our process,

our due process, our legal system as one of his other weapons as

he carries on this fight.

Another factor to consider with respect to the military rule of evidence, I think it is 505, as Admiral Hutson indicated.

Ms. TAUSCHER. That is right.

Mr. DELL’ORTO. With respect to handling classified information,

normally when we are trying somebody in or a soldier in our

courts, we are trying him for something he has done with evidence

that he has already had access to. He has mishandled that information. He has given it over to the enemy. He has been derelict

in the way he handles it, and so he has already seen that evidence.

We are not presenting to him anything that he hasn’t already seen.

And so the concern there is not that the accused doesn’t see it, because he already has seen it, but that the world doesn’t see it.

The third point I would make, and I am sad to have to say this,

our track record in military courts-martial, in trying cases in which

there is classified information, is not particularly good. We have

had success in some cases, but I will tell you both at the trial level

and at the appellate level, if you look back through the case histories, the histories of those cases, we have on balance done a much

more poor job of prosecuting people than we would—than we have

as a general proposition in cases that don’t involve classified information.

Ms. TAUSCHER. I think this is really an area of jurisdiction where

we have to be enormously creative at the same time that we have

to deal with the rule of law and the law of war. And this military

rule of evidence 505, as you suggest, is one of those sticky wicket

places where I think we are going to have to have counsel from

various venues, Admiral Hutson. I hope you will help us with this,

too, Mr. Olson.

But for the record if you would each get back to the committee

and me specifically as to your suggestions on how we deal with this

issue, because obviously this is a baby in the bath water issue. We

don’t want to have to divulge sources and methods, other operations that are going on, people in theater, identities of people at

the same time that we are trying to adjudicate in a swift and in

a fair way these potential captives.

So I really want to yield right now because I know we have other

people, but I think this is a very important issue. If anybody ever—

if anybody else has a quick comment, I am happy to accept it.

[The information referred to can be found in the Appendix beginning on page 119.]
30

Admiral HUTSON. If I may, let me just say that I think it is very,

very difficult for the United States of America to say to anybody,

we know you are guilty, we can’t tell you why, but there is somebody that says you are guilty; we can’t tell you who, but we know

they are reliable; we can’t tell you how we know that, but you are

guilty.

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

Mr. SIMMONS. Thank you, Mr. Chairman, for this hearing, which

I consider to be historic; times of stress or times when our values

really need to be preserved and protected. And I remember after

the Boston Massacre in 1770 in Boston, Massachusetts, John

Adams defended the British Redcoats. It was an unpopular decision

for him to make, but that is what he did. And during World War

II, 1942, April, May of 1942, when Hitler sent eight saboteurs to

Florida and Long Island, Kenneth Royal, an Army colonel, took the

very unpopular position of defending those saboteurs, six of the

eight of whom were electrocuted here in Washington, D.C. So I

commend the Chairman and the Ranking Member and the members of the committee as well as the panel for taking on this difficult issue.

I served for over 37 years in the U.S. Army. I consider the UCMJ

as something that was created for us as military personnel, and I

can’t see clearly the application to enemy combatants or terrorists,

as one of my colleagues said. These are folks that do not respect

the rules of law. They take hostages, they kill noncombatants and

innocent civilians, they cut people’s heads off, et cetera, et cetera.

So I guess my question goes to the issue of what kind of model

is going to work best. A colleague of mine who is a Coast Guard

attorney has written an op-ed calling for a national security courts

system, which take a little bit from the UCMJ and a little bit from

military tribunals, and what he refers to is a new kind of law for

a new kind of war. A new kind of law for a new kind of war. We

have our traditional criminal courts. We have our tribunals and

commissions. We have our UCMJ. But it occurs to me that we are

in a new kind of war. We are trying to maintain our respect for

our values in dealing with people involved in this new kind of war,

and perhaps it is incumbent upon the Justice Department, Defense

Department, and this Congress to shape an altogether different

model for differing justice in this framework, and I would be interested in your comments. But before I hear the comments, I would

like to ask the Chairman if we could insert this op-ed piece into

the record.

The CHAIRMAN. Without objection, we will put it in.

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

page 101.]

Mr. SIMMONS. Gentlemen, a new kind of law for a new kind of

war?

Admiral HUTSON. Mr. Simmons, I am generally familiar with

that kind of concept, and I find it very intriguing. I am not sure

it is the most efficient way to do it. And I take your point about

the UCMJ.

The UCMJ, as it is presently constituted, is clearly there to protect the rights of U.S. servicemembers and to efficiently prosecute
31

them when they need to be prosecuted, and has done that very well

over the years. What I am suggesting is that you could build on

top of that an enduring, regularly constituted court to do the same

kind of thing that that proposal would do. I think that, you know,

certifies the sort of court—is certainly possible to create a court

that is regularly constituted because this is the body that authorizes it, and that it protects the fundamental, you know—the words

out of Article—Common Article 3 that we have been talking about,

considered—the judicial guarantees considered to be indispensable

by civilized peoples. A court, some other kind of court, could do

that, absolutely, sir.

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

Admiral HUTSON. Right.

Mr. BRADBURY. Congressman, I will jump in and say I agree with

you completely. It is a new kind of war, and it does require a new

kind of rules. That is what the President was trying to do, I think,

and the Secretary of Defense with the existing military commission

structure, and now what this Congress needs to focus on, I think

a military commission-type approach is the right way to go.

I think that rules that will need to be focused on, obviously, like

use of classified information, I don’t believe that using the Classified Information Procedures Act or CIPA is the right way to go.

That is designed for criminal trials of U.S. citizens in U.S. Article

3 courts and the use of classified information in that context, and

it really impedes the government’s ability to go forward with prosecutions, which in these circumstances ought to be allowed to go

forward under different rules, and we can work on what those rules

ought to be.

The final thing I would say in terms of setting new rules for this

war on terror is that we really think Congress needs to do something to bring certainty and clarity to the application of Common

Article 3 and some of the vague phrases in Common Article 3 that

I referenced in my testimony, because an important part of what

needs to be done to bring sureness and certainty to those folks on

the front line who are handling detainees—because again, the concepts in Common Article 3 have never been applied previously to

an international conflict with a terrorist organization like al Qaeda,

and we need to set those rules going forward for the United States,

and we think they should be defined by U.S. law.

Mr. SIMMONS. I thank the Chairman, and I thank the panel.

The CHAIRMAN. Thank the gentleman.

The gentleman from New Jersey, Mr. Andrews.

Mr. ANDREWS. Thank you, Mr. Chairman.

In listening to the testimony and reading it this morning, it appears to me that we have two points of consensus and two very

practical dilemmas. First, I think there is a consensus that none

of us wants to treat Osama bin Laden’s bodyguard the way we

would an American citizen accused of car theft. There is just no

sense that the normal rules ought to apply.

And then second, I don’t think anyone is saying that we should

run an arbitrary process that does not command respect around

the world as being transparent and fair. I think we are all saying

essentially the same thing. The practical considerations I would
32

like to focus on go to the discovery problem and the Miranda warning problem.

Mr. Bradbury, I want to ask you a question about the discovery

problem. Let us assume that we have a person who is not a U.S.

citizen who is accused of participating with al Qaeda, and among

the pieces of evidence against that person is testimony from a peer

that this person has been engaged in terrorist activity. Also on the

record is the fact that the accuser of the person has some normal

garden variety grounds to be biased and prejudiced against that

person. Let’s say there has been a romantic entanglement involving

three people or a dispute over a commercial dispute; someone has

a motive to tell a lie about the person. Should that fact be discoverable by the defense in the military commissions that we are talking

about?

Mr. BRADBURY. Well, in your question, Congressman, is the other

person who has given the evidence an intelligence source for the

United States who needs protection? Because that raises yet another set of issues. But assuming that is not the case, then the

identity of that person would be made known to the detainee defendant and his counsel, and the statement that may have been

taken from that person—the person let’s assume is not available to

appear at the military commission trial, so you are going to need

to use some kind of hearsay statement, some kind of sworn statement or other statement that can be verified, and the fact-finder

determines it is probative, it is reliable to rely on it, then I think

in that hypothetical that the detainee defendant would—if he

knows who that person is, would be able to raise issues about the

bias of that person or the accuracy or correctness of the statements—of the statements made.

If that person is an intelligence source for the United States,

then that raises additional issues that would need to be dealt with,

because information about an intelligence source cannot—we cannot allow that to get out to other terrorists who wouldn’t take very

long to dispatch that.

Mr. ANDREWS. What if it is the first assumption, and the accuser

is not an intelligence source, but the accuser’s identity was discovered by an intelligence source? So, in other words, in the fact-gathering process to make charges against the detainee, an intelligence

source tells our intelligence agencies, you know, yeah, this guy over

here has some interesting information about the detainee. What

about that?

Mr. BRADBURY. Well, I think there would be a way consistent

with fundamental fairness not to have to disclose to the detainee

in these proceedings such that we might compromise our intelligence sources the providence of that—of that chain, in other

words, how we came to that person, because that would in and of

itself reveal a confidential intelligence source. But the tribunal may

know that and judge that it is reliable.

Mr. ANDREWS. If that issue itself were litigated in discovery, it

should be the tribunal who determines whether it is a discoverable

fact or not?

Mr. BRADBURY. In the first instance, I think so, yes.

Mr. ANDREWS. And that would be an in camera proceeding?
33

Mr. BRADBURY. Well, in terms of the intelligence information

that is at issue, if there is any, the classified information could be

presented to the tribunal in an ex parte, in camera process that,

in fact, is done, for example, with the International Criminal Tribunals for Rwanda and Yugoslavia where lots of times you have state

secrets of the various nations involved or that may be very sensitive, and defendants may try to get discovery of that sensitive information, and in those tribunals it is available to go ex parte in

camera to the tribunal to make a case for not presenting that information.

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

Mr. DELL’ORTO. I believe they were, Congressman, to a large extent. I mean, the prosecution is obligated to provide to the defense

all the evidence it is prepared to present as part of the trial, and

to the extent you get into these collateral issues of the identity of

the—of the intelligence source themselves that must be protected,

I mean, that information I would think would be part of the file

that would be—that is presented to the defense counsel.

Mr. ANDREWS. Admiral Hutson, I want to ask a question about

Miranda warnings. Is it your understanding under the military justice code that a person who is suspected, once the suspicion is established, it triggers the right to be represented by counsel; is that

your understanding?

Admiral HUTSON. Yes, sir.

Mr. ANDREWS. Do you think that right should extend to suspected detainees; they have a right to have counsel present with

them during their interrogation?

Admiral HUTSON. I think that once you take them—you know,

we keep talking about the battlefield, and the world is the battlefield in some respects, but once you take them from where they are

and put them at Guantanamo, if you are interrogating them for

purposes of prosecution, then I think you do. If you are interrogating them for intelligence purposes, and you may be able to draw

a bright line between the two where the intelligence—the intelligence interrogators are not sharing information with the prosecution interrogators. So I see a difference in that regard.

Mr. ANDREWS. The bright line seems awfully difficult. If you ask

the detainee whether he was part of conversations about a possible

plot to blow up the Holland Tunnel, is that an interrogation for the

purpose of prosecution, or is it an interrogation for the purpose of

intelligence gathering?

Admiral HUTSON. Well, you ask them two different times. One

time you ask them is the intelligence inquiry, and the other time

is the prosecution inquiry.

Mr. ANDREWS. Who decides whether the lawyer should be

present before the interrogation?

Admiral HUTSON. I think the rules decide that, the rules that

you set up decide that.

Mr. BRADBURY. Congressman, if I may, I think this—just to illustrate this would be entirely unworkable. I think when we have detainees at GTMO or elsewhere in the war on terror, we need for

intelligence purposes to be able to question them in an unfettered

way, and when we have exhausted the intelligence we think we can
34

get, and we think we have got a case to make, we can then initiate

a war crime prosecution, and at that point they can have counsel

and they can have the availability of counsel, and we can move forward with a fair process. But we cannot intermix the two and try

to draw that line because it is just going to impede our ability to

protect the country through vital intelligence gathering.

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

The CHAIRMAN. I thank the gentleman.

Another gentleman from New Jersey, Mr. Saxton.

Mr. SAXTON. Thank you, Mr. Chairman, and I think it is great

that we are holding this hearing today. It is very important set of

subjects, I guess you would call it.

I would like to ask a little bit different question, if I may. Based

on my observations, the necessity for collecting information in prosecuting this war is historically different than it has ever been before. During the process of carrying out our oversight responsibilities, it seems to me there are certain conclusions one can come to

in a practical sense, and one of those conclusions is that detainees

provide a constant flow of information that is necessary for us to

conduct successful operations.

They are not the only source, but they are one of the sources and

an important source. It has been suggested here today by Mr.

Hutson, and I respect his opinion, that the UCMJ has been used

as kind of a model for prosecutorial proceedings. Given the need,

that we all know about, to collect information on this enemy, what

effect would the adoption of a process such as that suggested by

Mr. Hutson have on our ability to collect information?

Admiral HUTSON. Sir, I don’t think it would have a significant

effect one way or the other. You can prosecute them first, and interrogate them, get the intelligence information after you have convicted them if they are convicted. You can get the intelligence information and then prosecute them.

We run again, and your question points up the point that Congressman Hefley made earlier about conducting the war and at the

same time that you are conducting the war, you are prosecuting in

a judicial sense the people that you have taken off the battlefield,

and that creates its own difficulties.

But I think that we run into serious problems when we try to

combine the two, the warfighting on one hand and the prosecution

on the other. If we want not to prosecute them, that’s fine. But if

you are going to prosecute them, I think that you need to do it in

accordance with the generally accepted rules.

Mr. BRADBURY. Congressman, I think, again, with respect that

points out the complete unworkability of applying in whole cloth

the UCMJ procedures to military commissions. If the proposition is

we have to try them and convict them and get them in prison as

a convicted war criminal first before we interrogate them to get

vital intelligence then we put Americans at risk and our soldiers

at risk because we are not getting intelligence that we may need

and we may need it right now. That has to come first.

Whatever the procedures that are in place and the lines that are

drawn, they can’t impede that vital necessity. And so I think a lot

of the other specifics we have talked about here today help estab-
35

lish and clarify why the various procedures need to be flexible in

certain respects to make this all work.

Mr. DELL’ORTO. Congressman, let me get back to the premise of

your question because I think it is important. What is different

about today than other combat we have engaged in in the past?

Particularly going back to World War II and Korea, as a matter of

general intelligence, you sort of know who the enemy is, who is

arrayed on the other side of the line of battle. You know his order

of battle. You know his division commanders, his battalion commanders. You probably know down to the company command level

who these guys are.

And when you take captives during that process, you generally

know that the private, the corporal or sergeant doesn’t know much

beyond what happened that day or what may be planned for tomorrow. If you get the general, you get the brigade commander who

is a colonel, he is going to have more information. You are going

to know to focus your information on him.

When we pick up these guys, and Hamdan is probably a classic

example—if he goes by his military occupational specialty, he is a

driver. And what does that mean? He technically probably wouldn’t

know much and probably wouldn’t be doing much as part of the

battle, if you will, or the war, and yet it turns out he happens to

be the driver for bin Laden. He happens to be a guy who moves

weapons. He happens to be a guy who I think runs money as well.

He does many, many things.

You cannot conduct this fight without doing interrogations of

these folks, but you can’t separate the nonactors from the actors in

this. You have got to be able to talk to all of them, and you have

got to do it, as Mr. Bradbury says, right now because that little

gem of intelligence that guy may have about a cell phone number,

about a safe house location, may lead you to a very, very significant

find or very, very significant target.

And so we have from the earliest days said our goal is to get intelligence from these folks. If we can prosecute them down the road

and they have committed sufficiently serious acts to warrant prosecution, we will do that. But we are going to have to do everything

we can to grab intelligence from them because this is a different

type of war and the intelligence gathering is absolutely critical.

Mr. SAXTON. Mr. Chairman, if I could just suggest one of the

things that we might want to do as a committee before we make

any decisions on how to proceed is to have a session similar to this

in a closed session. I think if some of the members who maybe

haven’t had the opportunities that I have to view and understand,

and maybe a lot of our members have, but for those who haven’t

had an opportunity to really sit down and look in detail at individual cases, this becomes an even more important subject to the national security of this country. And so if I may just make that suggestion.

The CHAIRMAN. Let me say to my colleague from New Jersey, I

think that is a great recommendation and let’s do it.

Let me, if I could, just impose on my colleagues with the last

question you asked because I think it is not entirely clear to me.

Is the panel saying that if this person that you pick up in combat

operations, in being interrogated says, yes, I’m a bomb maker, and
36

I made the bomb that blew up the such and such, and you extract

that information pursuant to your battlefield interrogation or

shortly thereafter, that under the UCMJ that would not be admissible in a later prosecution?

Mr. DELL’ORTO. Mr. Chairman, my argument as a defense counsel would be the following: When you picked him up, you, the soldier, the specialist, the corporal, the sergeant grabbed him by the

scruff of the collar and took him into captivity, you had an idea

who this guy was. You knew he was a bad guy; you knew he was

an unlawful combatant. You knew based upon the intelligence

going in you were likely to find somebody of this character. And he

told you he was a bomb maker.

Now you asked him about that; you asked him who he was. You

asked him what his job was. I would argue that you as a soldier

because you are subject to the code were obligated upon suspicion

this guy was an unlawful combatant generally, regardless of what

that might be, that you are obligated to advise him under his

rights under article 31 of the Uniform Code of Military Justice.

The CHAIRMAN. Because he at that point has become the focus

of suspicion of criminal activity.

Mr. DELL’ORTO. Again, if you want to carry this to the extreme,

as I would as a defense counsel, I would argue any one of these

guys because they are all unlawful combatants. We have yet to find

on the battlefield in Afghanistan a lawful combatant. They are in

theory all guilty of unlawful belligerency which would trigger the

obligation to advise them of their rights, in my opinion.

The CHAIRMAN. I think Mr. Hutson may have a comment.

Admiral HUTSON. Thank you, sir.

The CHAIRMAN. Let me just ask, and I want you to go first, is

it the position of any of you that that should—that should a person

give an admission like that, I’m a bomb maker, upon a battlefield

interrogation, if you will, that that should not be admissible in a

later prosecution.

Go ahead, Mr. Hutson.

Admiral HUTSON. Thank you. If you were to superimpose UCMJ

in total precisely as it is right now, that would be the unfortunate

result. What I am suggesting though is that you modify it in such

a way so that that would not be the result because I don’t think

any of us would find that to be acceptable.

The CHAIRMAN. Okay. So nobody recommends that.

The gentleman from New York, Mr. Israel.

Mr. ISRAEL. Thank you, Mr. Chairman.

Mr. Chairman, much to my mother’s shame I never went to law

school. I am not an attorney, which puts me at a decided disadvantage from a legal perspective, but it also gives me, I think, the advantage sometimes relying on common sense to sift through some

of these complicated issues.

While I am not a lawyer, I am a student of history, and one of

the things that concerns me in this debate is repeated references

to the fact that we need to understand that there are enemies that

we have and adversaries and threats to the security of the state

and threats to our national security interests. We all understand

that, and all of us on this committee are strongly supportive of an

aggressive military response to those enemies, but the fact of the
37

matter is that every single repeal or diminishing of essential legal

and human civil rights in history has always been based on the argument that there are enemies of the state.

The whole experience of national socialists was to build new

courts, peoples’ courts, special courts, military courts based on the

argument that there are enemies of the state, there are enemies

within, and we have to protect ourselves from those enemies.

I am not arguing that our legal process echoes their legal process, but we have in our own experience and in this very hearing

alluded to legal decisions made in our government that protected

the interests of the state against adversaries at the expense of

basic rights.

Japanese Americans were interred and detained. General Grant

expelled entire populations from Tennessee based on the concern of

national security. Rights were impinged upon in the 1950’s based

on threats of Communism.

These decisions to reduce, repeal, diminish rights have never

been made based in a vacuum. They have always been made based

on the national security argument, which is why I think we have

to be very careful in the rhetoric that we use.

One of the concerns that I have, Mr. Dell’Orto, which Mr. Snyder

has already raised is the suggestion that is anyone in fact supporting Miranda rights after a Marine kicks in the door, as you said;

whether anybody is suggesting that the legal process has to allow

for fingerprinting and the traditional evidence gathering that we

experience in our own civilian justice system.

So my question, Mr. Dell’Orto, is, who is making these proposals?

Where have you heard any Member of Congress suggesting that we

need to offer Miranda rights to someone after we kick in a door in

Afghanistan or Iraq or elsewhere?

Mr. DELL’ORTO. Congressman, I am not suggesting that any

Member of Congress has suggested that. What I am suggesting is

that to the extent that some have said that the court martial process is, as currently configured, is the preferred method of dealing

with the trials of unlawful combatants, that that is a model that

we should follow without change I think is the problem that I suggest exists. So I am not attributing that to any individual. I will

say no specific individual.

I have heard, and no member of this body that I have heard, but

I have heard some say and I think it may have been—I forget

which congressman earlier mentioned the argument that the defense counsel for Hamdan made at the Supreme Court, that the

court martial system is the way to go, that he should be tried by

a court martial. That is ludicrous.

Now here is the question. If we do agree that such things as Miranda rights, such things as very well-defined rules of evidence

that require chain of custody, that require all these things that we

know from our courts, from CSI Miami, from anything we read in

the paper on any given day, if we think that there needs to be

modification, then how do we get there.

Mr. ISRAEL. I am sorry, my time is expiring. That is the second

question I wanted to raise. I have heard different panelists talk

about modifications, but it seems that we are talking in opposite

directions but kind of agreeing on the same thing. Mr. Bradbury
38

suggested that we not use the UCMJ in whole cloth, but that is not

what Admiral Hutson is suggesting. In fact, his testimony said that

specifically this is not to say, however, that the court martial system that is contained in the UCMJ and MCM couldn’t or shouldn’t

be modified in some narrow and specific ways. What I am trying

to figure out is, why are you both saying opposite things but agreeing on what has to be done at the end of the day?

Mr. BRADBURY. Let me say, Congressman, that that is where we

are today. Because of the Supreme Court’s decision in Hamdan, the

military commission process is dead in the water. We cannot move

forward according to the court’s judgment unless the President

uses the Uniform Code of Military Justice and the court martial

process. That is what the court said.

So that is where we are. And the court said, because it read the

statutes of the Uniform Code to require uniformity, the President

has to justify any variation and the court wasn’t convinced with the

justification the President offered. So where we are today is we are

stuck using the Uniform Code unless we can justify variations or

unless this Congress sets out rules and procedures that allow us

to vary from it.

There may be agreement, and it sounds like there may be on

some fundamental points so we can move forward very quickly

with legislation which is terrific, but as of right now, the court has

said the President has to use the Uniform Code of Military Justice.

That is why we are using that as the thing we need to talk about,

because we need to justify those variations.

Mr. DELL’ORTO. My point is, do we take away provision after provision from the Uniform Code of Military Justice and the Manual

of Courts Martial to get to that medium, wherever it is? Or do we

take the existing process the President has already proposed and

say either the way it is right now or with minor tweaking there

you can get to that result faster and easier. And that is all I am

saying.

I do have a concern though if we start from the former, that is

dismantling the UCMJ or revising it, we will then be disrupting

that particular process, which again has a very, very important history, a very important function with respect to our own service

members, and I would hate for us to build a body of law based

upon the UCMJ that then starts to cause difficulties in the application of that system with respect to our own service members.

The CHAIRMAN. Thank the gentleman. The gentleman from

Michigan, Dr. Schwarz.

Dr. SCHWARZ. Just as an aside, I was raised on Fort Custer,

Michigan, Mr. Dell’Orto, during World War II, where 6,000 German prisoners, mostly Afrika Korps, were housed, and had very

close contact with them because my father, a lieutenant colonel in

the Army Medical Corps was fluent in German and was called frequently to deal with medical problems that they might have, and

then in another life, one of my jobs among many jobs in my second

tour of duty in Vietnam was to take prisoners that were held by

the South Vietnamese, North Vietnamese, Viet Cong, get them out

of the hell hole prisons that the South Vietnamese had into American custody where they were treated exceptionally and sometimes,
39

if they were of no value to us, simply released, as we have done

with, I believe, 250 of the detainees in Guantanamo.

That said, I can’t ask a question of high nuance about the law;

I am not an attorney. Very simply, to get to the lowest common denominator of this hearing this morning, my belief is that this

learned panel of attorneys would say that it is the job of the Congress as the result of the Hamdan decision to pass legislation

which sets up a body or bodies to deal with the non-national actor

detainees that the United States might take in any conflict that we

find ourselves now or the future in the Global War on Terror. Is

that an appropriate and correct premise?

Admiral HUTSON. Absolutely, yes, sir.

Dr. SCHWARZ. That is what the Congress should do. That is the

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

Hamdan.

Admiral HUTSON. I think the court is saying that this for too

long has been a discussion between the executive and the judiciary,

and it needs to have Congress right smack in the middle of it.

Dr. SCHWARZ. Thank you very much because that is what I get

out of it as well, and I think it is very simple. That is the lowest

common denominator. That is where the rubber meets the road.

That is what we should do. And I have no further questions. I

would just say to Mr. Bradbury, Go Blue, and to Admiral Hutson,

Go Green. Michigan and Michigan State.

Thank you, Mr. Chairman. I yield back.

Mr. BRADLEY [presiding]. Mr. Larsen is next.

Mr. LARSEN. Mr. Chairman, because I think the committee would

benefit from someone known as Judge rather than Rick, I would

like to yield my time to Mr. Butterfield of North Carolina.

Mr. BUTTERFIELD. Thank the gentleman for yielding and thank

the four of you for your testimony today. This is certainly an important case, and it is one that we need to resolve very quickly. I have

taken the time to read the Hamdan decision. It is 73 pages long.

I have read it multiple times. We were out last week, and I had

some free time. And I took my time and read the decision and the

dissenting and concurring opinions.

Even though, at first blush, the opinion may appear to be very

complicated, when you filter through all of the discussion, it is really a very simple case, and so I agree with Admiral Hutson that this

should be easy. The whole world is watching us.

I was in Europe last week with 200 or 300 parliamentarians

from the European Union, and I can assure you, they have great

interest in this case, and they are watching very closely to see if

we administer justice fairly to these individuals who have been detained.

You know, the Uniform Code of Military Justice is a very comprehensive piece of rules. I think it is something that we can certainly use, probably not completely, but we can certainly use the

UCMJ as a template to begin developing the rules of procedure for

these types of cases.

Let me start off by asking the representative from the Department of Justice, Mr. Bradbury, what is your definition of a regularly constituted court. There is a lot of discussion in the opinion

about that. What do you consider to be regularly constituted?
40

Mr. BRADBURY. Well, I don’t know that there is a settled international interpretation of that phrase. I think, in the court’s opinions, there seem to be a coalescing of view that if it is set up by

statute, it is regularly constituted. So I think it was our view that

the recognition and preservation of jurisdiction for military commissions that already is in the Uniform Code and that we think

was implicitly in the authorization for the use of military force

made them regularly constituted. The court didn’t see it that way,

at least not in the form the President set it up. But I think anything this body sets up by statute or recognizes by statute here will

be by definition regularly constituted for purposes of common article 3.

Mr. BUTTERFIELD. The Supreme Court also talked about the judicial guarantees that are recognized as indispensable by civilized

peoples. Can you give me a brief interpretation of that?

Mr. BRADBURY. Well, it was not a majority of the court that addressed that issue, it was Justice Stephens in his—the portion of

his opinion that was only a plurality for four justices. In that portion of his opinion, he went off and looked at other provisions of

treaty law that have not been ratified by the United States to tried

to pull out of those concepts of customary international law.

But Justice Kennedy did not see a need to join that part of the

opinion. So I don’t think we have an opinion from the court on

what that phrase means.

Mr. BUTTERFIELD. What do you think it means?

Mr. BRADBURY. I will have confidence—it really I think just refers to procedures that ensure fundamental fairness measured

against standards not of the U.S. article 3 courts in criminal prosecutions or even the UCMJ which is even more protective but looking at what nations around the world view as indispensable. I

think there is a minimum common denominator. I have full confidence that any set of procedures that Congress adopts or ratifies

by legislation will satisfy that standard. I will also say that I firmly

believe that the procedures that have been used and set forth in

the military commission process that the Secretary of Defense designed also satisfies that standard.

Mr. BUTTERFIELD. There was also some discussion in the opinion

about the crime of conspiracy not being triable by a commission.

What does that do to our military if we cannot in the future try

conspirators in the commission?

Mr. BRADBURY. Again, Congressman, that also was a portion of

Justice Stephens’ opinion, which was only a plurality. Justice Kennedy did not join that part, that was part 5 of Justice Stephens’

opinion. That was only a plurality of four in which he concluded

that conspiracy was not a charge available under the laws of war.

I think Justice Thomas did a very good job in his dissenting opinion in explaining why that is not the case; that in fact conspiracy

is a recognized charge that can be brought under the laws of war,

and of course, in this conflict, we are going to have a very difficult

time convicting many of these folks of war crimes if we cannot convict them on the basis of conspiracy because this is an international conspiracy, al Qaeda, and many of them have joined that

conspiracy and actively furthered it through overt acts that they
41

may not have—obviously, they weren’t in the plane that flew into

the World Trade Center on 9/11.

Mr. BUTTERFIELD. Looks like we have run out of time. Let me

just conclude by asking you this: Do you contend that commission

order number 1 is sufficient to comply with the Supreme Court

holding if we were to approve that?

Mr. BRADBURY. We think if Congress in its judgment approved

it, the Court would respect that, and it would be sufficient to comply. I am not suggesting Congress just rubber stamp. I think when

you look at it and look at all these issues we have talked about,

it is open to you to come to the conclusion that each of the procedures that the President and the Secretary of Defense settled on

in military commission order number 1 satisfies the standards and

that you are comfortable with that, and if you were to do that, I

believe backed up by statute and Congress, that would be upheld

by the court.

Mr. BUTTERFIELD. Thank you.

Mr. UDALL. Mr. Chairman, I have a unanimous consent request

that I be allowed to include a statement in the record of this hearing.

[The prepared statement of Mr. Udall can be found in the Appendix on page 98.]

Mr. BRADLEY. Without objection.

Mr. UDALL. Thank you, Mr. Chairman.

Mr. BRADLEY. Since we are pushing up against a vote, I am going

to yield my time and recognize, I believe, next Mr. Ryan.

Mr. RYAN. Thank you, Mr. Chairman. I want to thank the panel,

too. I think this has been a really helpful discussion for us, and I

know the work unfortunately or fortunately is just beginning here.

So we are going to certainly rely on you in the future.

I think hearing the discussion today, Mr. Chairman, that we

have a great opportunity here and as the Admiral has stated, an

opportunity to highlight what is best about the United States and

why we are different.

One of the questions I did have to the Admiral is, as we are talking about the intelligence-gathering proposition, the other panelists

have said this somehow could be impeded by some of the changes.

How do we ensure that we can protect these rights that civilized

societies may agree upon but at the same time gather and get the

information we need?

Admiral HUTSON. I think with careful draftsmanship you will be

able to draw a distinction between the purposes and also, in answer to the earlier dialogue about the battlefield kinds of statements, permit them in. In my mind, there is a big difference between what goes on in the hootch, in the battlefield, and what goes

on at Guantanamo.

Where you have taken them off the battlefield, you have got

some time. They are no longer an immediate threat. All you are

looking for is information. You are not protecting yourself personally or protecting your fellow soldiers.

You create a regime by which—because I agree, intelligence is

important. Valuable, usable intelligence is important. You create a

regime by which that is derived and then you deal with the military commission aspects.
42

Mr. RYAN. So you are not saying, as we pull someone off the battlefield in Afghanistan or in Iraq, that immediately we are going

to have—they are going to have to have counsel?

Admiral HUTSON. No.

Mr. RYAN. You are saying that weeks, possibly months later,

they get back to Guantanamo—do you gentlemen disagree with

that? This is kind of where I am unclear of what, Mr. Bradbury,

may be your position or the Administration’s position would be. If

we are not saying that that person needs legal counsel immediately, isn’t that plenty of time to gather any immediate information, the cell phones, the locations, the safe houses, those kinds of

things. Couldn’t we get that information in the first couple of

weeks?

Mr. BRADBURY. I don’t think we should impose that kind of arbitrary limitation on our ability to get intelligence information. It is

our view that you could transfer the person back to GTMO, continue to interrogate the person. You do not need to provide counsel

if you haven’t charged them; for military commission purposes, if

you have charged them—and you shouldn’t have to charge them

with a crime within some artificially short period of time such as

you do under speedy trial rules.

I think, under the existing UCMJ framework, as I think every

one on the panel agreed, you would have to provide them with

counsel at the first point where you suspect that they may

have——

Mr. RYAN. We are not just going to take UCMJ and plop it in;

we are going to modify it. I guess what I am saying is, how long?

that is really the question here.

Mr. BRADBURY. It would be our view, again, that if you look to,

for example, the kind of timing concepts that are used in the international criminal tribunals, criminal trials in those contexts are to

be brought without undue delay, or phrases like that, which allow

for flexibility. But I don’t think you should say within two weeks,

within two months, within a fixed number of days you have to

charge the person with the criminal charges and provide counsel

and then cut off intelligence gathering at that point. I don’t think

that makes sense.

Mr. RYAN. Isn’t there a point where if we have someone for five

years or two years, that we have gotten all we can get out of them?

Mr. BRADBURY. Well, sure. But keep in mind that these are combatants who, under the laws of war, we have every right to hold

during the ongoing hostility so we may have them for a long period

of time, and we have had the folks at GTMO for a considerable period of time. And if they have ongoing intelligence value, we should

be able to take advantage of that. And if we have a case to be made

that they have committed serious war crimes, we should be able to

charge them and move forward with those prosecutions.

We should be able to try the 60, 80 or 100 people at GTMO who

we believe should be charged with war crimes and tried. We should

be able to try them under whatever rules Congress now sets up

even though they have been held now for some years.

Mr. BRADLEY. Mr. Ryan, I am trying to get everybody to have

their five minutes.

Mr. RYAN. Will we have another round?
43

Mr. BRADLEY. Hopefully not. We will have many more rounds,

but I hope not today. I think we need to let the witnesses go on.

Mrs. Davis.

Ms. DAVIS OF CALIFORNIA. Thank you, Chairman, and thank you

all for being here. I wonder if we can go back a bit. I think the role

of Congress and oversight responsibility in the time of war and

oversight over the law of war is very important, and obviously, the

courts looked at that, and I wonder if you could comment some. Is

it fair to say that we have lost a number of years, perhaps even

five in total in trying to—well, during this kind of imbalance really,

I think, between the executive, the judiciary and the legislative

branches. I am interested really in knowing whether you feel there

was a time at which Congress could have much more appropriately

stepped in or obviously the executive branch could have come to

the Congress? And how you see that role?

And I wonder, Admiral Hutson, if you could elaborate a bit on

what you think the court gave the Congress as a charge in balancing executive power.

Admiral HUTSON. Thank you. I think the court put it squarely

in your lap. It would have perhaps been helpful in hindsight and

retrospect if Congress had acted more quickly in this area or if the

executive had come to Congress and said, we need help, but that

didn’t happen. And to quote a popular phrase these days, we are

where we are.

So the only thing we can do is move forward. I think Congress

needs to move forward quickly but deliberately on this because it

is an important issue. But I think it is completely now, constitutionally and by the Hamdan decision, in your ball park.

Ms. DAVIS OF CALIFORNIA. Anybody else want to comment on

that specifically? No.

Mr. BRADBURY. I guess I would just say, when the Administration set up the military commission process back in 2001 it certainly intended to move forward with it quickly and hoped that

that would be the case. And for a variety of reasons, it hasn’t been,

and court intervention has been part of that, and I agree, we are

where we are.

Certainly, Congress does have authority to define and punish violations, crimes against the law of nations, and we are here to work

with Congress now so that we can get this process moving forward

again.

Ms. DAVIS OF CALIFORNIA. Given that we might tweak the military Commission Order Number 1 of the President or move to what

would be a sizeable modification I think on the Uniform Code of

Military Justice, what kind of other external controls do you think

would be important? Is there something else that, from an appeals

point of view, that the Congress ought to be looking at, whether I

think suggestions that a tribunal would be subject to the supervisory authority of the Court of Appeals for the Armed Forces; is

that an appropriate direction that the Congress should be taking

to consider that?

Mr. BRADBURY. Well, I guess I would say, Congresswoman, that

Congress in some sense has decided this issue in the Detainee

Treatment Act where Congress set up a process for judicial review

on appeal of military commission judgments. Final judgments of
44

conviction of military convictions can be appeal to the U.S. Court

of Appeals for the D.C. Circuit and ultimately if necessary by

certiori to the Supreme Court. One approach would be to keep that

structure of appeal and judicial review in place. I think an important part of that would be, as Mr. Olson suggested, ensuring this

time around through I guess it would have to be ironclad language

in your statute that all the other collateral habeas litigation does

not move forward. But this is the exclusive avenue for judicial review of the military commission process.

Again, judicial review of military commission proceedings is a

historic, new development. I mean, historically, there has not been

that, and so—but I think the DTA sets up a process.

Ms. DAVIS OF CALIFORNIA. Do you see any impact of Hamdan on

the detainee act? Should it be changed in any way as a result of

the Hamdan case?

Mr. BRADBURY. Certainly, one way is I think what Mr. Olson

suggested and what I just suggested; I think the court read the

provisions in the Detainee Treatment Act which I think were clearly intended by Congress to cut off jurisdiction for all pending habeas litigation and other litigation challenging the detention of

these enemy combatants other than the one avenue for appeal to

the D.C. Circuit that Congress intended to set up, but the court

read that—the court just got right around that. And I think that

you need to look at that again because I think that litigation needs

to be shut off, and you need to control the review through one manageable channel of review.

Ms. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman. I see my

time is up.

Mr. BRADLEY. Mr. Cooper.

Mr. COOPER. Thank you, Mr. Chairman. I appreciate the patience of the witnesses and also the tremendous personal sacrifice

that Mr. Olson in particular has already suffered in the war on terror.

The Constitution says in article 1, section 8, that Congress shall

set rules of capture on land and sea. I would like to ask the witnesses what they think that phrase means.

Admiral HUTSON. Precisely what it says.

Mr. COOPER. Others?

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

Mr. COOPER. I asked what you thought it meant.

Mr. BRADBURY. I do think that it provides some authority for

dealing with the captures in the war on terror. There is a view that

it is limited to seizing of property and ships at sea, that kind of

capture. Ultimately, I don’t know if that view is sustainable, but

I will say, Congressman, that never in the history of the country

has Congress entered into the areas where we are now contemplating providing rules by legislation. These have been areas traditionally left up to the executive in time of war so we need to proceed

extremely cautiously in these areas.

Mr. COOPER. Not everything in life has a precedent. There was,

however, a very powerful precedent in Youngstown Steel. Justice

Jackson is widely quoted as saying the President’s wartime power
45

is at its zenith when he has gotten even the concurrence or consultation of Congress.

This is an ironic age that we are in because although we have

a Republican White House and a Republican Congress, there has

been remarkably little consultation. The Hamdan decision might

not have ever occurred if there had been prior consultation. As you

point out, now we will be consulting with each other.

But it is not only this case of the President’s wartime powers.

Senator Graham was particularly forceful on this yesterday. There

are so many areas that the White House has simply not conferred

with Congress, a Republican Congress, on war powers.

So can I ask what your thinking is on why the White House has

refused to confer? Because doesn’t the White House want its wartime powers to be at their zenith?

Mr. BRADBURY. Well, Congressman, in the Hamdan case, it was

the position of the United States in that case that the provisions

of the UCMJ and the authorization for the use of military force

that Congress passed in the wake of 9/11 did provide positive and

affirmative support for the President’s military commission process.

So it was the position that we in fact had the support of Congress

in that case. I think the court may view that differently.

I will say that obviously I can’t comment on the full range of

issues that you raised by your question, but I think the President

has endeavored to keep Congress informed through the traditional

channels; for example, through briefings and notification to the relevant committees with respect to different activity, certainly this

committee, on wartime activities.

Mr. COOPER. Mr. Bradbury, the Republican chairman of the

House Intelligence Committee released a letter last week saying he

had not been properly informed as the chairman of the House Intelligence Committee.

You were quoted in the newspaper yesterday as saying the President is always right. And I hope that is a misquote because I have

never met an infallible human being yet.

Mr. BRADBURY. Neither have I, Congressman. I am glad you

brought that up. I guess that shows I shouldn’t try to be humorous

when I am testifying. That was a tongue-in-cheek comment. Nobody is always right, and I certainly didn’t mean to say that other

than in humor.

Mr. COOPER. Let me move on since the time is so short. The sovereignty issue with Guantanamo, who is the sovereign power in

Guantanamo?

Mr. Olson, you stressed that in your comments.

Mr. OLSON. The agreement between the government of Cuba and

the United States makes it absolutely clear and no court so far has

disturbed that conclusion that the sovereignty remains with Cuba.

There are limitations on what the United States may do there to

commercial and other——

Mr. COOPER. Are you saying that Cuban law controls in Guantanamo?

Mr. OLSON. No, and I should allow the government lawyers to

answer that question because I am no longer representing the government, but the agreement with respect to that makes it clear

that with respect to that area, like in many other agreements
46

throughout the world, U.S. law may appropriately govern property

that is in the custody of the United States, although sovereignty

remains——

Mr. COOPER. U.S. law doesn’t apply, Cuban law applies. What

law does apply there?

Mr. OLSON. Again, I want to defer to my colleagues representing

the Administration.

Mr. COOPER. But you stressed this point very strongly in your

testimony. Whose law applies?

Mr. OLSON. There is an area where the Commander-in-Chief has

responsibility to determine battle place decisions, who fires a gun,

where the troops will go, and so forth. And under those circumstances the Constitution quite properly allocated that responsibility to the President.

Mr. BRADLEY. Mr. Cooper, I want to give Ms. Bordallo a chance

to ask her questions, too.

Thank you. Ms. Bordallo.

Ms. BORDALLO. Thank you very much, Mr. Chairman, and thank

you to the panel. This certainly is a very critical concern.

I have just one question. I had a couple of questions. But in light

of the Hamdan ruling of the Supreme Court and the memorandum

issued by Secretary England concerning the application of article 3

of the Geneva Conventions, could you foresee a situation in the future where our Nation would not adhere to article 3? And if so,

what kind of situation would that be, and why would it justify once

again disregarding the Geneva Conventions? That would be for

you, Mr. Bradbury.

Mr. BRADBURY. Thank you, Congresswoman. We have not disregarded the Geneva Conventions. We brought a good faith interpretation of the Geneva Conventions. And again, the court has not

said that al Qaeda detainees are prisoners of war subject to all of

the rules and privileges of the Geneva Conventions. The court simply construed one article of the Geneva Conventions, common article 3, and said, contrary to the President’s determination, this in

fact is not an international conflict because it is not between nations, and therefore common article 3 applies in our war on terror.

That is, we believe, quite a dramatic concept because I don’t think

the drafters of Geneva in drafting that provision intended to cover

or even anticipated conflicts between nations like the United States

and international terrorist organizations. But be that as it may, the

court said that applies.

Now that brings with it a number of standards, substantive

standards, and some procedural requirements. And as I said in my

testimony, most of the substantive standards are quite clear, and

we can all agree that they are condemnable conduct; they are in

fact the kind of crimes against humanity that al Qaeda commits.

There are some very vague phrases such as humiliating and degrading treatment. These are the kinds of phrases that in past

treaties and recent treaties like the Convention Against Torture

and the International Convention For Civil and Political Rights

have caused the United States to take reservations to those treaties, carefully defining those phrases by reference to U.S. constitutional law so we can all be sure it is based on a U.S. understanding
47

of the proper standards and not international understandings,

which may be different from ours and may evolve.

We don’t have such a reservation to common article 3 currently,

and so the meaning of that phrase, those phrases, which are quite

vague, will be uncertain and will be subject to interpretations by

foreign and international tribunals and other governments, and

they have been applied, in certain respects, in ways that are quite

reasonable. In other respects, they have been applied in very broad

ways, which might condemn the kinds of conditions that are in

U.S. prisons for example. And we need to be very careful because

now as a result of the court’s opinion a violation of those standards

suddenly is a war crime under title 18 of the U.S. code. So it puts

at risk all of the U.S. personnel handling it.

We think Congress can act by statute to bring definition and certainty to the meaning of common article 3 and implement it for the

United States. We think that is consistent with our treaty obligations, and it can make those terms certain, and we think that is

very important as we move forward.

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

Mr. BRADBURY. We think we can address that, that the Congress

can address those risks through legislation.

Ms. BORDALLO. Thank you, Mr. Chairman, for the opportunity to

ask my question.

Mr. BRADBURY. Thank you. We have gotten to the end of our witnesses and seeing we are down below ten minutes in the vote, I am

going to yield to the Chairman for just a moment.

The CHAIRMAN. I want to thank you the gentleman from New

Hampshire for running this hearing so effectively here while I was

gone.

Gentlemen, I would like to thank you for being with us, but also

ask you if you want to make any recommendations as to the substance of the structure or anything elsewhere you think we would

be—that you have some advice for us, without objection, we will

leave the record open. And please make any further recommendations you would like to make to us on how we construct this new

body of law. I think we are going to be acting, and whether we get

this in time to package it with the conference report working with

the Senate or it comes in later, I think we definitely are acting. So

it is going to be there. This has been I think very, very instructive.

You have been most valuable in talking to us today. Thank you

very much. As you can see, we had full attendance, lots of people

with lots of great questions, and your testimony was very, very

good. Really appreciate it. Thank you.

Admiral HUTSON. Thank you, Mr. Chairman.

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

[Whereupon, at 12:44 p.m., the committee was adjourned.]

A P P E N D I X

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QUESTIONS SUBMITTED BY MS. SANCHEZ

Ms. SANCHEZ. I have a few questions about how we should approach the task of

codifying our system for military commissions. Since the UCMJ delegates substantial rule-making power to the President, what aspects of commission procedures should we codify and what should be left to Presidential executive orders in the Manual for Courts-Martial? For example, if we decide to allow for exclusion of the accused in certain circumstances during presentation of classified evidence, should we codify the rule or leave it to executive rulemaking? Second, in crafting a statute for commissions should we begin with the general court-martial model and deviate only where common sense dictates? Or should we

outline an entirely distinct type of tribunal and specify minimum procedural safeguards, leaving the details to the president?

Finally, if we enact a military-commissions statute, would it make sense to have

a separate Manual for Military Commissions as the vehicle for Presidential rulemaking? Would you expect that the implementing regulations would need to be that

extensive?

Mr. BRADBURY. We believe that Congress struck the appropriate balance in the

Military Commissions Act of 2006 (‘‘MCA’’), which enacts the Code of Military Commissions, modeled on the court-martial procedures of the Uniform Code of Military

Justice (the ‘‘UCMJ’’), but adapted for use in the special context of military commission trials of alien unlawful enemy combatants. Dozens of articles of the UCMJ have

relevance for military commissions and were appropriately relied on as the starting

point for the MCA. At the same time, Congress recognized that the military commissions process for alien unlawful enemy combatants should be separate from the

court-martial process that is used to try our own service members. The MCA thus

reflects the relevant differences between the procedures appropriate for trying the

men and women of our Armed Forces and those appropriate for trying unlawful

alien enemy combatants.

The MCA, like the UCMJ, provides that the procedures established in the MCA

will be supplemented by additional rules and procedures. Similar to Article 36 of

the UCMJ, section 949a provides that the Secretary of Defense, in consultation with

the Attorney General, shall prescribe rules of law and evidence appropriate for military commissions, following those in courts-martial, where the Secretary of Defense

considers such procedures practicable or consistent with military necessity. See 10

U.S.C. § 949a(a). Consistent with that directive, the Department of Defense recently

promulgated a new Manual for Military Commissions, which follows the Manual for

Courts-Martial in many respects.

Ms. SANCHEZ. One of the persistent criticisms of Military Commission Order

Number 1 has been the lack of a meaningful appeals process for military-commission cases. What would you consider to be the most appropriate appeals process for

military-commission cases: use of existing Article I courts, the ad hoc approach of

limited review under the DTA, or some other alternative? Why?

Mr. BRADBURY. In the MCA, Congress has created a formal appeals process that

parallels the appellate process under the UCMJ. Specifically, the MCA establishes

a Court of Military Commission Review within the Department of Defense to hear

appeals on questions of law. See 10 U.S.C. § 950f(a). Convicted detainees have the

right to further appeal their convictions to the U.S. Court of Appeals for the D.C.

Circuit. Id. § 950g(a). The Supreme Court may review decisions of the D.C. Circuit

through petitions for certiorari. Id. § 950g(d). We believe the MCA provides robust

appellate review of decisions by military commissions.

Ms. SANCHEZ. Common sense suggests that when war crimes trials are conducted

in the course of an on-going war, we should reserve some discretion to deny the accused access in unusual cases, yet we want to ensure that the rules narrowly limit

the circumstances of such denials and ensure that there are safeguards to mitigate

the prejudice to the accused, such as unclassified summaries of the evidence, etc.

With that in mind, I first would ask the panel to offer their opinion on whether,

in theory, it is possible to have a fundamentally fair trial where an accused is excluded for portions of the trial? What about trials in absentia, where an accused vol-
116

untarily flees after arraignment—while that is different, doesn’t the law assume

that resulting verdicts can be fundamentally just, despite the absence of the accused?

Second, since the Supreme Court ruled that Common Article 3 of the Geneva Conventions apply to our conflict with al Qaeda generally and the military commissions

specifically, could we exclude the accused from selected portions of his trial consistent with Common Article 3’s requirement for a tribunal ‘‘affording all the judicial

guarantees which are recognized as indispensable by civilized people’’? Finally, military-commission prosecutors I have spoken with about this say that exclusion of the accused would be an unusual and extraordinary measure. What is

the best way to preserve some rule for extraordinary exclusion, while protecting the

rights of the accused? What procedural and substantive standards would you recommend? Is there any existing model?

Mr. BRADBURY. The MCA strikes an appropriate balance between the rights of the accused and interests of our national security. The new law grants the accused the

right to be present for all trial proceedings. See 10 U.S.C. § 949a(b)(1)(B); id.

§ 949d(e). Moreover, the accused will have access to all the evidence admitted before

the trier of fact. See id. § 949a(b)(1)(A). At the same time, the MCA contains robust

protections to ensure that the United States can prosecute captured alien unlawful

enemy combatants without compromising highly sensitive intelligence sources and

methods. See id. § 949d(f). Accordingly, we believe that the MCA is consistent with Common Article 3’s requirement of a tribunal ‘‘affording all the judicial guarantees

which are recognized as indispensable by civilized peoples,’’ while also safeguarding

our intelligence operations and personnel.

Ms. SANCHEZ. The single rule of evidence in Military Commission Order No. 1 is that ‘‘evidence shall be admitted if the evidence has probative value to a reasonable

person.’’ This standard is very similar to the rule of admissibility used by the International Criminal Tribunal for the Former Yugoslavia, which states: ‘‘A chamber

may admit any relevant evidence which it deems to have probative value.’’ The

International Criminal tribunal for Rwanda uses a nearly identical standard as

well. In view of the similarity of these standards, there seems to be an international

consensus that war crimes trials require a broader and more relaxed approach to

admissibility of evidence. What additional rules regarding the admissibility or exclusion of evidence are es- sential to ensure reliable verdicts in military-commission cases? Do you believe that

this standard—‘‘probative value to a reasonable person’’ is sufficient to exclude evidence derived from coercive interrogations? How would you fashion a rule of exclusion that prohibits admission of statements obtained through coercive interrogations?

Mr. BRADBURY. We agree that the evidentiary rules used in the International Criminal Tribunal for the Former Yugoslavia (‘‘ICTY’’) and the International Criminal Tribunal for Rwanda (‘‘ICTR’’) demonstrate the appropriateness of applying

broad rules of admissibility in war crimes trials. Because military commissions must

try crimes based on evidence collected everywhere from the battlefields of Afghanistan to foreign terrorist safe houses, we believe that Congress struck a sensible balance in enacting a Code of Military Commissions that provides for the introduction

of all probative evidence, including hearsay evidence where such evidence is reliable.

Of course, some evidence may be unreliable under the circumstances surrounding

a particular case. We believe, however, that the reliability of a particular piece of

evidence is best left to the considered judgment of the presiding military judge in

the first instance.

The Administration believes that it is neither possible nor prudent to draw a

‘‘bright-line’’ rule of exclusion for statements obtained via ‘‘coercion.’’ The United

States does not engage in torture, an act that is prohibited by United States law

and our international obligations. Consistent with these obligations, the MCA provides that statements obtained by torture shall not be admitted in a military commission proceeding. See 10 U.S.C. § 948r(b). The MCA further provides that statements obtained in violation of the Detainee Treatment Act of 2005, which was enacted on December 30, 2005, shall not be admitted before a military commission.

See id. § 948r(d)(3). As for other statements arguably obtained through ‘‘coercion,’’

the MCA leaves the question of admissibility to the sound discretion and expertise

of the military judge. Allegations of ‘‘coercion’’ are easy to make and often difficult

to rebut, particularly in the context of an ongoing armed conflict. Accordingly, instead of attempting to fashion a universally applicable rule of exclusion for ‘‘coerced’’

statements, Congress has appropriately entrusted military judges with the authority

to make context-specific determinations about whether a particular allegation of ‘‘coercion’’ is sufficiently well founded to vitiate the reliability of a given statement and

whether the interests of justice favor the admission of the statement.
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Ms. SANCHEZ. What additional rules regarding admissibility or exclusion of evi- dence are essential to ensure reliable verdicts in military commission cases? And if

it is commonly accepted that coerced admissions are not reliable and therefore lack

probative value, do you believe that this standard, probative value to a reasonable

person, is sufficient to exclude evidence derived from coerced confessions? And how

would you fashion a rule of exclusion that prohibits admission of statements obtained through coercive confessions?

Mr. DELL’ORTO. The Military Commissions Act of 2006 lays out statutory frame- work for military commissions cases including evidentiary rules. On January 18, 2007, the Department of Defense submitted to Congress a Manual for Military Commissions consistent with the guidance provided in the Military

Commissions Act, which includes specific rules of evidence.

Ms. SANCHEZ. Those familiar with the history of American military justice are aware of the great evolution of military justice in the last half-century. Beginning

with the enactment of the UCMJ in 1950 and continuing thereafter through changes

to the Code itself and the Manual for Courts-Martial, modern American courts-martial have become very similar to, and in many ways superior to, civilian criminal

courts. Yet there has been no similar evolution in the legal basis for military commissions, which have also been a long standing feature of American military justice.

I believe we are now taking the first major steps in the evolution of military commissions, which I believe are an important part of our legal arsenal in the war on

international terrorism. I have a few questions about how we should approach the

task of codification.

• Since the UCMJ delegates substantial rule-making power to the President, what aspects of commission procedures should we codify and what should be left to

Presidential executive orders in the Manual for Courts-Martial? We need to find the

appropriate mix of statute and implementing regulations. For example, if we decide

to allow for exclusion of the accused in certain circumstances during presentation

of classified evidence, should we codify the rule or leave it to executive rule-making?

Mr. DELL’ORTO. Congress has passed and the President has signed into law the Military Commissions Act of 2006 (‘‘MCA’’). The Department of Defense believes

that this legislation provides the appropriate approach, including the appropriate

level of statutory codification.

Ms. SANCHEZ. Second, in crafting a statute for commissions should we begin with the general court-martial model and deviate only where common sense dictates? Or

should we outline an entirely distinct type of tribunal and specify minimum procedural safeguards, leaving the details to the president?

Mr. DELL’ORTO. Please see the previous answer.

Ms. SANCHEZ. Finally, if we enact a military commissions statute, would it make sense to have a separate Manual for Military Commissions as the vehicle for Presidential rule-making? Would you expect that the implementing regulations would

need to be that extensive?

Mr. DELL’ORTO. On January 18, 2007, the Department submitted to Congress a

Manual for Military Commissions consistent with the guidance provided in the Military Commissions Act of 2006.

Ms. SANCHEZ. One of the persistent criticisms of Military Commission Order

Number 1 has been the lack of a meaningful appeals process for military commissions cases. The Detainee Treatment Act provides for review by a special panel of

the DC Circuit Court of Appeals of cases that result in a sentence in excess of 10

years confinement. However, because military commissions are a species of military

tribunals under the UCMJ, it would seem to make sense to give the Article I military appeals courts, with their expertise in military law, supervision of this aspect

of military justice as well.

• What would you consider to be the most appropriate appeals process for military

commissions cases: use of existing Article I courts, the ad hoc approach of limited

review under the DTA, or some other alternative? Why?

Mr. DELL’ORTO. The Military Commissions Act of 2006 affords accused the opportunity to appeal military commissions decisions to the Court of Military Commission

Review, the Court of Appeals for the District of Columbia Circuit and the Supreme

Court of the United States. We believe that the Military Commissions Act of 2006

lays out the appropriate appeals process.

Ms. SANCHEZ. The Supreme Court was critical of the military commission rule

that permits exclusion of the accused from proceedings and denies him access to

classified evidence. I believe that this rule was offered as one of the original justifications for military commissions in our current context. There has been much

useful discussion here regarding the best way to protect classified information in the

military commissions process. On the one hand, there are those who advocate using
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the usual rules in the Classified Information Procedure Act (CIPA) and Military

Rule of Evidence 505, which apply in a regular court-martial. On the other hand,

there are those who take the view that the commission should have the discretion

to simply exclude the accused whenever classified evidence is presented, believing

that the presence of his appointed defense counsel will mitigate any prejudice to the

accused. I’d like to find a middle ground—common sense suggests that when war

crimes trials are conducted in the course of an on-going war, we should reserve

some discretion to deny the accused access in unusual cases, yet we want to ensure

that the rules narrowly limit the circumstances of such denials and ensure that

there are safeguards to mitigate the prejudice to the accused, such as unclassified

summaries of the evidence, etc.

• With that in mind, I first would ask the panel to offer their opinion on whether,

in theory, it is possible to have a fundamentally fair trial where an accused is excluded for portions of the trial? What about trials in absentia, where an accused voluntarily flees after arraignment—while that is different, doesn’t the law assume

that resulting verdicts can be fundamentally just, despite the absence of the accused?

Mr. DELL’ORTO. Yes, in principle by setting clear, defined limitations on when an

accused can be excluded we may ensure a ‘‘full and fair trial’’. That said, the MCA

does not permit the accused to be tried in absentia or through the introduction of

classified evidence withheld from the accused. The new law grants the accused the

right to be present for all trial proceedings (unless he engages in disruptive conduct

warranting his exclusion). See 10 U.S.C. § 949a(b)(1)(B); id. § 949d(e). The accused

will have access to all the evidence admitted before the trier of fact. See id.

§ 949a(b)(1)(A).

Ms. SANCHEZ. Second, since the Supreme Court ruled that Common Article 3 of

the Geneva Conventions apply to our conflict with al Qaeda generally and the military commissions specifically, could we exclude the accused from selected portions

of his trial consistent with Common Article 3’s requirement for a tribunal ‘‘affording

all the judicial guarantees which are recognized as indispensable by civilized peoples’’?

Mr. DELL’ORTO. Yes, by setting clear, defined limitations on when an accused can

be excluded we can ensure a ‘‘full and fair trial’’. As explained in the previous answer, the MCA provides that the accused shall be present for all proceedings of a

military commission (with certain narrow exceptions). See 10 U.S.C. § 949d(b). The

MCA further makes clear that, in the view of the United States, a military commission established under the MCA is ‘‘a regularly constituted court, affording all the

necessary ‘judicial guarantees which are recognized as indispensable by civilized

peoples’ for purposes of common Article 3 of the Geneva Conventions.’’ Id. § 948b(f).

Ms. SANCHEZ. Finally, military commissions prosecutors I have spoken with about

this say that exclusion of the accused would be an unusual and extraordinary measure. What is the best way to preserve some rule for extraordinary exclusion, while

protecting the rights of the accused? What procedural and substantive standards

would you recommend? Is there any existing model?

Mr. DELL’ORTO. The Military Commissions Act of 2006 includes provisions to protect classified information from disclosure if disclosure would be detrimental to the

national security. The legislation requires that the accused will be present for all

proceedings of a military commission (with certain narrow exceptions). See 10 U.S.C.

§ 949d(b). The procedural and substantive standards included in the Military Commissions Act of 2006 appear to strike the proper balance between the need to protect classified information and the accused’s right to a full and fair trial.

Ms. SANCHEZ. I would like to zero in on the rules of evidence again. All of you,

including Admiral Hutson, accept the view that different rules of evidence are required for war crimes cases. The usual reasons cited for this necessary deviation

from the regular rules of evidence in courts-martial and Federal courts are related

to the manner and circumstances in which war crimes evidence is gathered—by soldiers and intelligence agents, rather than police detectives trained in the collection

and preservation of evidence for criminal trials. Consequently, the evidence in war

crimes trials will likely include hearsay, evidence without a clear chain of custody,

and interrogation products obtained without Miranda warnings and other safeguards against coercion. The single rule of evidence in Military Commission Order

No. 1 is that ‘‘evidence shall be admitted if the evidence has probative value to a

reasonable person.’’ This standard is very similar to the rule of admissibility used

by the International Criminal Tribunal for the Former Yugoslavia, which states: ‘‘A

chamber may admit any relevant evidence which it deems to have probative value.’’

The International Criminal tribunal for Rwanda uses a nearly identical standard as

well. In view of the similarity of these standards, there seems to be an international
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consensus that war crimes trials require a broader and more relaxed approach to

admissibility of evidence. • What additional rules regarding the admissibility or exclusion of evidence are essential to ensure reliable verdicts in military commissions cases?

Mr. DELL’ORTO. The Military Commissions Act of 2006 lays out a statutory frame- work for military commissions cases including evidentiary rules. On January 18, 2007, the Department submitted to Congress a Manual for Military Commissions consistent with the guidance provided in the Military Commissions Act which includes specific rules of evidence.

Ms. SANCHEZ. It is commonly accepted that coerced admissions are not reliable

and, therefore, lack probative value. So, do you believe that this standard—‘‘probative value to a reasonable person’’—is sufficient to exclude evidence derived from

coercive interrogations? How would you fashion a rule of exclusion that prohibits admission of statements obtained through coercive interrogations?

Mr. DELL’ORTO. Coercion is a difficult legal concept to define and any interrogations by government officials are coercive to some degree. I do not agree that coerced

admissions are per se unreliable and lack probative value. The MCA excludes statements obtained by torture, as that term is defined under United States law, and

it further excludes statements obtained in violation of the Detainee Treatment Act

(‘‘DTA’’), which was enacted on December 30, 2005. See 10 U.S.C. § 948r(d). As for

other statements obtained by measures that did not violate any United States statute, the MCA leaves the question of admissibility to the sound discretion and expertise of the military judge. Rather than trying to define ‘‘coercion,’’ Congress has appropriately entrusted military judges with the authority to make context-specific determinations about whether a particular statement appears to be reliable and

whether the interests of justice would be served by admission of the statement. See

id. § 948r(c). I believe that the MCA fashions the appropriate rule regarding the admissibility of allegedly coerced statements.

QUESTIONS SUBMITTED BY MS. TAUSCHER

Ms. TAUSCHER. Would you agree that the Congress, in drafting the UCMJ, made

a reasoned and considered decision, informed in part by concerns about the procedures adopted and applied in the Yamashita case, that military commissions should

adhere as closely as practicable to the rules of the UCMJ?

Have any military commissions been established since the UCMJ was adopted

that not track the rules of the UCMJ, aside from those currently proposed by the

administration?

Which agencies and officials of the U.S. government did the White House consult

in advising the President on the issuance of his military order of November 13,

2001, establishing the present military commissions? Were senior officials from the

Pentagon, including the uniformed military leadership and senior Judge Advocates

General, the State Department and the National Security Council consulted? If not,

why were those officials in the government with primary responsibility for national

security and knowledge of U.S. military law and traditions excluded from the process?

Mr. BRADBURY. We believe that Congress made a reasoned decision to enact the

Uniform Code of Military Justice (the ‘‘UCMJ’’) to codify the rules for courts-martial.

As reflected in the position of the United States in the Hamdan litigation, we do

not believe that the uniformity requirement of Article 36 was intended to require

concordance between military commission procedures and court-martial procedures,

but rather was designed to ensure uniformity among the court-martial rules promulgated by the various services. That said, a majority of the Supreme Court held to

the contrary in Hamdan. The Military Commissions Act of 2006 (the ‘‘MCA’’) addresses the statutory limitations identified in Hamdan by establishing a new chapter of title 10 to govern trials of alien unlawful enemy combatants by military commission. The MCA tracks the UCMJ, but is adapted for use in the special context

of military commission trials of alien unlawful enemy combatants and reflects the

relevant differences between the procedures appropriate for trying the men and

women of our Armed Forces and prisoners of war and those appropriate for trying

alien unlawful enemy combatants.

The President’s November 13, 2001, order reflected advice received from policy

and legal experts throughout the Administration. In proposing new military commissions legislation, the Administration engaged in extensive deliberations with all

of the bodies that you have mentioned, including military lawyers, and in discussions with interested Members of Congress. Beyond that, it is not appropriate to discuss confidential and privileged advice provided by the Department of Justice or
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others in the Administration for the benefit of policymakers within the Executive

Branch.

With respect to the specifics of any military commissions that may have been con- vened after the codification of the UCMJ, we would refer you to the Department

of Defense, which is in a better position to provide a response.

Ms. TAUSCHER. You stated that intelligence and military operations might be com- promised by application of the UCMJ, or a system of justice modeled after the

UCMJ. Specifically, you warned that members of our armed forces would have to

read Miranda rights to combatants captured on the battlefield, and that intelligence

officers would not be able to carry out interrogations without first giving Miranda

warnings and providing access to counsel. Isn’t it true that, under the UCMJ, Miranda warnings and access to counsel are not required at the moment of capture

or when interrogations are conducted for intelligence gathering purposes? Isn’t it

true that the UCMJ only requires Miranda warnings and access to counsel once

someone has become a suspect for purposes of criminal prosecution?

If so, why did you not mention this distinction in your testimony?

Mr. BRADBURY. The MCA makes clear that Article 31 of the UCMJ shall not

apply, directly or indirectly, to the trial of alien unlawful enemy combatants by military commission. See 10 U.S.C. § 948b(c) & (d)(1)(B). To answer your specific ques- tion, as I explained in my testimony, Article 31 of the UCMJ requires members of

our Armed Services to provide Miranda-type warnings before questioning to any in- dividual suspected of criminal wrongdoing, whenever that questioning may be

deemed to be part of an official law enforcement investigation. That right is broader

than the right afforded to criminal defendants in the civilian system and should not

be applied to the questioning of captured terrorists. The Court of Military Appeals

held in the Lonetree case that intelligence agents who were not members of our Armed Forces did not have to provide Article 31 warnings when conducting an interrogation wholly divorced from a military law enforcement investigation. See

United States v. Lonetree, 35 M.J. 396, 405 (C.M.A. 1992). But Article 31 may well apply to many situations in which members of our Armed Forces interrogate or

interact with detainees suspected of having violated the law of war. Our military

personnel should not be required to guess as to whether the situation they confront

is sufficiently investigatory, nor should they be forced to choose between conducting

effective interrogations and risking having confessions later deemed inadmissible.

Congress appropriately determined in the MCA that Article 31 (a), (b), and (d)

should not apply to military commission prosecutions.

Ms. TAUSCHER. Isn’t it true that the UCMJ has rules that protect against the dis- closure of classified evidence?

Don’t those rules allow the government to substitute summaries of evidence or statements of facts that the classified evidence would prove to avoid the disclosure

of classified evidence?

Mr. BRADBURY. The MCA strikes an appropriate balance between the rights of the

accused and our national security interests. The new law grants the accused the

right to be present for all trial proceedings. See 10 U.S.C. § 949a(b)(1)(B); id.

§ 949d(e). Moreover, the accused will have access to all the evidence admitted before

the trier of fact. See id. § 949a(b)(1)(A). At the same time, the MCA contains robust

protections to ensure that the United States can prosecute captured alien unlawful

enemy combatants without compromising highly sensitive intelligence sources and

methods. See id. § 949d(f).

As you note, Military Rule of Evidence 505, which tracks the Classified Information Protection Act, provides procedures that allow the Government to seek judicial

approval for the substitution of classified evidence with redacted or summarized evidence. Although some of those procedures parallel those in the MCA, they are not

identical, reflecting the fact that military commission procedures are designed for

the trials of unlawful enemy combatants—not the members of our Armed Forces—

and that in contrast to courts-martial, military commission prosecutions are far

more likely to concern evidence that either is classified or was derived from classified sources or methods.

Ms. TAUSCHER. Isn’t it true that the UCMJ includes exceptions to the prohibition

on hearsay that include both an ‘‘excited utterance’’ exception and ‘‘present sense

impressions’’ exception?

Wouldn’t both those exceptions apply to statements made on the battlefield, and

wouldn’t those statements be admissible even under the current hearsay rules of the

UCMJ? If not, please explain.

Mr. BRADBURY. The Military Rules of Evidence, tracking the rules in civilian

courts, do contain hearsay exceptions for ‘‘present sense impressions’’ and ‘‘excited

utterances.’’ See Mil. R. Evid. 803(1), (2). And those hearsay exceptions may apply

to some statements made on the battlefield under certain circumstances. However,
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those two exceptions may well not apply in many instances, such as if the declarant

provides a statement after leaving the battlefield and the immediacy of the situation

surrounding it. See, e.g., United States v. Green, 50 M.J. 835, 840 (A. Ct. Crim. App.

1999) (holding that present-sense-impression exception does not apply to rape victim’s statements made after she was questioned by her roommates); United States

v. Jones, 30 M.J. 127, 129–30 (C.M.A. 1990) (holding that excited-utterance exception does not apply to statements made 12 hours after the event).

Given the importance of gathering reliable evidence from alien unlawful enemy

combatants both on and off the field of battle, the Administration believes that the

hearsay rules under the Military Rules of Evidence are ill suited to military commissions. Many witnesses in military commission trials are likely to be foreign nationals who are not amenable to process. Other witnesses may be unavailable because of military necessity, incarceration, injury or death. The MCA adopts a broad

rule of admissibility for hearsay, in a manner that is consistent with international

tribunals. See 10 U.S.C. § 949a(b)(2)(E)(i). For example, the international criminal

tribunals for the former Yugoslavia and Rwanda permit the admission of any relevant evidence that the tribunal deems to have probative value, including hearsay

evidence, as long as it is not substantially outweighed by the need for a fair trial.

Ms. TAUSCHER. Is it not the policy of our military, as expressed in the current

DOD Directive on its Law of War Program, to comply with the law of war (including

Common Article 3) ‘‘during all armed conflicts, however such conflicts are characterized, and in all other military operations?’’

Would you agree that the United States has applied the minimum standards of

Common Article 3 in all of the wars it has fought since the ratification of the Geneva Conventions, including against irregular forces like the Viet Cong and warlords

in Somalia?

Please specify any and all examples of situations where these requirements of humane treatment were a detriment to our military’s ability to fulfill its mission?

Please specify examples of any and all interrogation techniques that you believe

U.S. service members or contractors should be allowed to employ, but are prohibited

by the humane treatment requirements of Common Article 3?

If the meaning of humane treatment under Common Article 3 is Vague and not

fully understood by military commanders, why was Deputy Secretary England able

to state with confidence that current DOD practices and policies fully comply with

its standard?

You warned that the definition of the Common Article 3 is subject to constant reinterpretation by international bodies. Isn’t it true that interpretations and rulings

issued by foreign tribunals are not ever binding on the U.S.? And that therefore the

U.S. is not, and would not, ever be obliged to adopt an international tribunal’s definition of the Terms of Common Article 3?

Does the Supreme Court’s ruling that Common Article 3 applies to the treatment

of all al Qaeda detainees in U.S. custody also apply to the treatment of al Qaeda

detainees in the custody of other U.S. government agencies, including the CIA? If

not, why not? If so, what steps are being taken to communicate this requirement

to such agencies?

Has any country in the world that is a party to the Geneva Conventions ever

passed a law or promulgated a policy that denies the application of Common Article

3 to any detainee captured as part of an armed conflict?

Mr. BRADBURY. It has been and will continue to be the policy of the United States

to comply with the law of war, including Common Article 3. With respect to Deputy

Secretary England’s statement, I would refer you to the Department of Defense,

which is in a better position to provide a response.

As you know, the Supreme Court held in Hamdan that Common Article 3 applies

to the conduct of the United States during the armed conflict against al Qaeda. That

decision extends to all detainees in the custody of the United States. It would not

be appropriate for me to comment on specific privileged legal advice that the Department of Justice has provided on this subject. That said, the difficulty in providing clear guidance as to the meaning of Common Article 3 demonstrates why it was

vitally important for Congress to enact the MCA.

Although many of the provisions of Common Article 3 prohibit actions that are

universally condemned, such as ‘‘murder,’’ ‘‘torture,’’ and the ‘‘taking of hostages,’’

other terms are undeniably vague. Most notably, Common Article 3 prohibits

‘‘[o]utrages upon personal dignity, in particular, humiliating and degrading treatment.’’ Terms such as ‘‘outrages,’’ ‘‘personal dignity’’ and ‘‘degrading treatment’’ are

susceptible to uncertain and unpredictable interpretations. For example, some might

consider it ‘‘humiliating and degrading treatment’’ merely to hear harsh words during an interrogation, or to be questioned by an interrogator of the opposite sex.
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The unpredictability of Common Article 3’s meaning is exacerbated by the well

established principles—repeatedly affirmed by the United States Supreme Court—

that interpretations adopted by international tribunals deserve ‘‘respectful consideration,’’ and that interpretations adopted by other state parties to the treaty are due

‘‘considerable weight.’’ To be sure, international interpretations of Common Article

3 are not binding on the United States. In light of Hamdan, however, there was

a substantial risk that the meaning of Common Article 3’s ambiguous provisions

would have been informed by the evolving interpretations of tribunals and governments outside the United States. As the President has noted, the uncertainty as to

the meaning of Common Article 3 would have placed into doubt the ability of the

CIA to interrogate senior al Qaeda officials and to gather from them information

that has directly contributed to our success in foiling many terrorist plots over the

past five years.

The President believed that it was vitally important that the standards governing

the treatment of detainees by the United States in the War on Terror should be

clear and consistent with our international obligations. The MCA does this by clarifying the meaning of Common Article 3 for all U.S. personnel. The statute clearly

defines the grave breaches of Common Article 3 that would expose individuals to

criminal sanctions. See MCA § 6(b) (amending 18 U.S.C. § 2441(d)). It makes clear

that the Constitution’s protections for our own citizens—as defined in statute by the

Detainee Treatment Act—similarly reflect our Nation’s international obligations.

See id. § 6(c). And the statute reaffirms the President’s inherent constitutional authority to interpret our Nation’s treaty obligations and delegates to him the power

to promulgate authoritative interpretive orders. See id. § (6)(a)(3)(C). The MCA

thereby promotes United States compliance with its treaty obligations by providing

clarity to U.S. personnel and other states parties to the Geneva Conventions of our

understanding of United States obligations under the treaty.

Ms. TAUSCHER. Get back to the committee and me specifically as to your suggestions on how we deal with this issue [referring to the issue of MRE 505 and classified information being used in proceedings].

Mr. DELL’ORTO. The Military Commissions Act of 2006 lays out statutory framework for military commissions cases including rules regarding the use of classified

information.

On January 18, 2007, the Department of Defense submitted to Congress a Manual

for Military Commissions, consistent with the guidance provided in the Military

Commissions Act, which includes specific rules of evidence regarding the use of classified information.

Ms. TAUSCHER. Would you agree that the Congress, in drafting the UCMJ, made

a reasoned and considered decision, informed in part by concerns about the procedures adopted and applied in the Yamashita case, that military commissions should

adhere as closely as practicable to the rules of the UCMJ?

Mr. DELL’ORTO. In many respects, the Military Commissions Act of 2006 closely

tracks the UCMJ. I agree that Congress has made a reasoned and considered decision in drafting the UCMJ as well as the Military Commissions Act of 2006.

Ms. TAUSCHER. Have any military commissions been established since the UCMJ

was adopted that not track the rules of the UCMJ, aside from those currently proposed by the administration?

Mr. DELL’ORTO. The UCMJ was implemented by Executive Order on February 8,

1951. I do not believe that there have been any military commissions conducted

under the UCMJ until the initiation of the current military commissions associated

with the current ongoing conflict.

Ms. TAUSCHER. Which agencies and officials of the U.S. government did the White

House consult in advising the President on the issuance of his military order of November 13, 2001, establishing the present military commissions? Were senior officials from the Pentagon, including the uniformed military leadership and senior

Judge Advocates General, the State Department and the National Security Council

consulted? If not, why were those officials in the government with primary responsibility for national security and knowledge of U.S. military law and traditions excluded from the process?

Mr. DELL’ORTO. I cannot address what consultations the White House did or did

not have.

Ms. TAUSCHER. You stated that intelligence and military operations might be compromised by application of the UCMJ, or a system of justice modeled after the

UCMJ. Specifically, you warned that members of our armed forces would have to

read Miranda rights to combatants captured on the battlefield, and that intelligence

officers would not be able to carry out interrogations without first giving Miranda

warnings and providing access to counsel.
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Isn’t it true that, under the UCMJ, Miranda warnings and access to counsel are not required at the moment of capture or when interrogations are conducted for intelligence gathering purposes? Isn’t it true that the UCMJ only requires Miranda

warnings and access to counsel once someone has become a suspect for purposes of

criminal prosecution?

If so, why did you not mention this distinction in your testimony?

Mr. DELL’ORTO. The MCA makes clear that Article 31 of the UCMJ shall not

apply, directly or indirectly, to the trial of unlawful enemy combatants by military

commission. See 10 U.S.C. § 948b(c) & (d)(1)(B). To answer your specific question, Article 31 of the UCMJ requires members of our Armed Services to provide Miranda-type warnings before questioning any individual who is subject to the UCMJ and suspected of criminal wrongdoing, whenever that questioning may be deemed

to be part of an official law-enforcement investigation. These rights are broader than

the rights afforded to criminal defendants in the civilian system. Indeed, unlike civilian Miranda rights warnings, military Article 31, UCMJ, rights warnings are re- quired regardless of whether the suspect is in law enforcement custody. In addition,

when the suspect is placed in custody and is to be questioned by law enforcement

or other persons subject to the UCMJ, the suspect is entitled to be advised that he

or she may consult with counsel and have such counsel present during the interrogation or questioning. When counsel is requested, counsel must be present before

any subsequent custodial interrogation may proceed. The failure to provide a required rights warning, regardless of whether the statement is obtained for law enforcement or intelligence purposes, generally precludes the use of those statements

as evidence, and may preclude the use of any additional evidence or information derived from those unwarned statements.

The Court of Military Appeals held in the Lonetree case that intelligence agents who were not members of our Armed Forces did not have to provide Article 31

warnings when conducting an interrogation wholly divorced from a military law-enforcement investigation. See United States v. Lonetree, 35 M.J. 396, 405 (C.M.A.

1992). But Article 31 may well apply to many situations in which members of our

Armed Forces interrogate or interact with detainees suspected of having violated the

law of war. Our troops should not be required to guess as to whether the situation

they confront is sufficiently investigatory, nor should they be forced to choose between conducting effective interrogations and risking having confessions later

deemed inadmissible. Congress appropriately determined in the MCA that Article

31 should not apply to military commission prosecutions.

Ms. TAUSCHER. You state that application of court-martial rules will require the

government to disclose classified evidence if it chooses to go forward with prosecutions.

Isn’t it true that the UCMJ has rules that protect against the disclosure of classi- fied evidence? Don’t those rules allow the government to substitute summaries of

evidence or statements of facts that the classified evidence would prove precisely to

avoid the problem you identified—the disclosure of classified evidence?

Mr. DELL’ORTO. The Manual for Courts-Martial has a Military Rule of Evidence

(MRE) that addresses the disclosure of classified information during a court-martial

prosecution. MRE 505 allows the government to offer alternatives to the full disclosure of classified information to the accused. The military judge then determines

whether the alternatives are acceptable for use by the accused at trial or whether

the use of the classified information itself is necessary to afford the accused a fair

trial. If the military judge determines that alternatives to full disclosure of the classified information are insufficient and the government continues to object to disclosing the classified information, the military judge must issue an order sanctioning

the government as the interests of justice require. Such an order may include: striking all or part of the testimony of a witness, declaring a mistrial, or dismissing the

charges, with or without prejudice. Thus, under the UCMJ, the government may be

forced to choose between releasing classified information to an accused in order to

continue the prosecution or protecting the classified information but foregoing the

prosecution.

In the MCA, Congress recognized that MRE 505—which was designed for the

trials of members of our Armed Forces—needed to be tailored for trials of unlawful

enemy combatants. The new law grants the accused the right to be present for all

trial proceedings. See 10 U.S.C. § 949a(b)(1)(B); id. § 949d(e). Moreover, the accused

will have access to all the evidence admitted before the trier of fact. See id.

§ 949a(b)(1)(A). At the same time, the MCA contains robust protections to ensure

that the United States can prosecute captured terrorists without compromising

highly sensitive intelligence sources and methods. See id. § 949d(f). I believe the

MCA strikes an appropriate balance between the rights of the accused and interests

of our national security.
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Ms. TAUSCHER. You state that the UCMJ would deprive prosecutors of some of

the best—and in some cases only—evidence against the detainees: hearsay statements made on the battlefield.

Isn’t it true that the UCMJ includes exceptions to the prohibition on hearsay that

include both an ‘‘excited utterance’’ exception and ‘‘present sense impressions’’ exception? Wouldn’t both those exceptions apply to statements made on the battlefield,

and wouldn’t those statements be admissible even under the current hearsay rules

of the UCMJ? If not, please explain.

Mr. DELL’ORTO. Military commissions, like international war crimes tribunals,

will have a strong need to consider reliable hearsay evidence. Hearsay statements

comprise some of the best evidence against those we expect to try by military commission, and it would be impracticable or even impossible to successfully try some

of those accused without the use of hearsay evidence. The Military Rules of Evidence generally prohibit hearsay evidence and carve out certain established exceptions where hearsay evidence has generally been recognized as more reliable. While

some of the hearsay evidence used in military commissions cases will fall into the

recognized hearsay exceptions, given the unusual nature of these cases, some valuable hearsay evidence will not. In particular, the ‘‘excited utterance’’ exception or

the ‘‘present sense impression’’ exception—which permit the admission of hearsay

statements about present or recent observations—are not likely to be broad enough

to permit the admission of highly relevant reports concerning past events that reliable, but unavailable, foreign witnesses may have made to United States personnel.

Thus, the Military Commissions Act of 2006 provides that hearsay evidence shall

be admitted if it would be admissible in a court-martial proceeding, or if the judge

otherwise finds the evidence probative and reliable. See 10 U.S.C. § 949a(b)(2)(E).

Ms. TAUSCHER. Is it not the policy of our military, as expressed in the current

DOD Directive on its Law of War Program, to comply with the law of war (including

Common Article 3) ‘‘during all armed conflicts however such conflicts are characterized, and in all other military operations?’’

Mr. DELL’ORTO. Yes, that is the policy.

Ms. TAUSCHER. Would you agree that the United States has applied the minimum

standards of Common Article 3 in all of the wars it has fought since the ratification

of the Geneva Conventions, including against irregular forces like the Viet Cong and

warlords in Somalia? Isn’t it true that in all of those conflicts we considered ourselves bound to apply the basic standards of humane treatment and fair justice embodied in Common Article 3—even against enemies that engaged in brutal war

crimes—in recognition that our actions set an example for others and for the treatment of our own troops when they are captured?

Mr. DELL’ORTO. U.S. Armed Forces personnel captured in the course of an armed

conflict have the status of prisoners of war under the Third Geneva Convention. The

full scope of that convention’s provisions and protections would apply in those circumstances, not the more limited protections of Common Article 3. In every armed

conflict, the United States has demanded always that captured U.S. personnel be

afforded all the rights and privileges of their lawful status. It has not always been

the case, however, that other State parties to the Geneva Conventions have afforded

our personnel such protections. Recall the experience of U.S. POWs held by the

North Vietnamese.

The United States provided captured Viet Cong and North Vietnamese forces with

prisoner of war protections out of our interest in protecting captured U.S. military

personnel and civilians, following the murder of three U.S. military personnel in

Viet Cong hands. Captured U.S. personnel did not benefit from this policy decision,

however, and they suffered confinement under brutal conditions, torture,

malnourishment, and other hardships up to and including murder at the hands of

their captors.

An historical and fundamental premise of the law of war is that private citizens

may not engage in combatant acts. No law of war treaty requires that a State provide prisoner of war status or protections to civilians who unlawfully take up arms

against that State. Doing so would place innocent civilians in greater jeopardy, and

would reward terrorists for their violations of the law of war.

Reciprocity in practices among States who are parties to the same treaty is an

important consideration. However, the attack of civilian objects and the death of almost 3,000 innocent civilians on September 11, 2001; the illegal attacks on other

civilian objects, such as the United Nations and International Committee of the Red

Cross facilities in Iraq; and the subsequent kidnapping, torture and murder of innocent U.S. and foreign civilians, such as the May 11, 2004, beheading of Nicholas

Berg, provide no expectation of even limited application of the law of war by al

Qaeda, which is not a State party to the Geneva Conventions.
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Ms. TAUSCHER. Please specify any and all examples of situations where these requirements of humane treatment were a detriment to our military’s ability to fulfill

its mission?

Mr. DELL’ORTO. I do not believe that treating detainees humanely is a detriment

to fulfilling U.S. military mission requirements.

Ms. TAUSCHER. Please specify examples of any and all interrogation techniques

that you believe U.S. service members or contractors should be allowed to employ,

but are prohibited by the humane treatment requirements of Common Article 3?

Mr. DELL’ORTO. The Detainee Treatment Act of 2005 contains the following provision:

No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to

any treatment or interrogation approach or technique that is not authorized by

and listed in the United States Army Field Manual on Intelligence Interrogation.

The Deputy Secretary issued a directive to the Department on December 30, 2005,

informing the field of this legal requirement under the Detainee Treatment Act. The

interrogation approaches and techniques contained in Field Manual 34–52, Intelligence Interrogations, comply with the law and are well within the humane treatment requirements of Common Article 3.

Ms. TAUSCHER. If the meaning of humane treatment under Common Article 3 is

vague and not fully understood by military commanders, why was Deputy Secretary

England able to state with confidence that current DOD practices and policies fully

comply with its standard?

Mr. DELL’ORTO. The policies promulgated by the Department of Defense are well

above the standards of Common Article 3.

Ms. TAUSCHER. Isn’t it true that interpretations and rulings issued by foreign tribunals are not ever binding on the U.S.? And that therefore the U.S. is not, and

would not, ever be obliged to adopt an international tribunal’s definition of the

terms of Common Article 3?

Mr. DELL’ORTO. Many of the provisions of Common Article 3 prohibit actions that

are universally understood and condemned, such as ‘‘murder,’’ ‘‘mutilation,’’ ‘‘torture,’’ and the ‘‘taking of hostages.’’ It is undeniable, however, that some of the

terms in Common Article 3 are inherently vague, as this Committee already discussed in its recent hearing on the subject.

For example, Common Article 3 prohibits ‘‘[o]utrages upon personal dignity, in

particular, humiliating and degrading treatment,’’ a phrase that is susceptible of uncertain and unpredictable application. If left undefined by statute, the application

of Common Article 3 could create an unacceptable degree of uncertainty for those

who fight to defend us from terrorist attack, particularly because any violation of

Common Article 3 constitutes a federal crime under the War Crimes Act.

Furthermore, the Supreme Court has said that in interpreting a treaty provision

such as Common Article 3, the meaning given to the treaty language by international tribunals must be accorded ‘‘respectful consideration,’’ and the interpretations adopted by other state parties to the treaty are due ‘‘considerable weight.’’ Accordingly, the meaning of Common Article 3—the baseline standard that now applies to the conduct of U.S. personnel in the War on Terror—would be informed by

the evolving interpretations of tribunals and governments outside the United States.

Ms. TAUSCHER. Does the Supreme Court’s ruling that Common Article 3 applies

to the treatment of all al Qaeda detainees in U.S. custody also apply to the treatment of al Qaeda detainees in the custody of other U.S. government agencies, including the CIA? If not, why not? If so, what steps are being taken to communicate

this requirement to such agencies?

Mr. DELL’ORTO. I can only speak for the Department of Defense and note the

steps taken to ensure that the Supreme Court’s ruling in Hamdan has been communicated throughout the Department of Defense. The Deputy Secretary issued a

memorandum on July 7, 2006 informing the Department of Defense that the Supreme Court determined that Common Article 3 to the Geneva Conventions of 1949

applies as a matter of law to the conflict with al Qaeda. A copy of this memorandum

has already been provided to Congress.

Ms. TAUSCHER. Has any country in the world that is a party to the Geneva Conventions ever passed a law or promulgated a policy that denies the application of

Common Article 3 to any detainee captured as part of an armed conflict?

Mr. DELL’ORTO. I do not know.
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QUESTIONS SUBMITTED BY MS. DAVIS OF CALIFORNIA

Ms. DAVIS. Why have only ten of the terrorist combatants in Guantanamo been

charged? What does the government plan to do with the rest of the people currently

held at GTMO?

Mr. BRADBURY. As the Supreme Court recognized in the Hamdi decision, the

United States has the authority to detain enemy combatants for the duration of hostilities. See Hamdi v. Rumsfeld, 542 U.S. 507, 519–21 (2004). The decision whether

to charge an enemy combatant with a crime depends, however, on whether there

is specific evidence that the individual committed a war crime. In light of the passage of the Military Commissions Act of 2006, and the resulting removal of any

legal uncertainty over whether the military commissions are authorized by statute,

we expect a greater number of detainees will be charged and tried by military commission.

With respect to those detainees who are not charged, the United States has the

authority to detain those individuals for the duration of hostilities, consistent with

their status as enemy combatants under international law. Nevertheless,the President has made clear that the United States has no interest in detaining these individuals beyond the point where such detention is necessary. Accordingly, the United

States has voluntarily taken measures to review the need to continue to hold enemy

combatants on an annual basis through the Administrative Review Board (‘‘ARB’’)

process. The ARBs assess whether the enemy combatant poses a threat to the

United States or its allies in the ongoing War on Terror and whether there are other

factors bearing on the need for continued detention (e.g., intelligence value). When

appropriate, the United States has undertaken extraordinary measures to repatriate

enemy combatants to their home countries. We emphasize, however, that these

transfers are not without risk. On anumber of occasions, enemy combatants released

by the United States have returned to the field of battle to once again take up arms

against American forces. Accordingly, for the safety of United States citizens, it is

important that the United States be careful and ensure that enemy combatants are

released only when they truly no longer pose a threat to the United States and its

allies.

Ms. DAVIS. The military commission rules the President approved prior to the

Hamdan decision contained a number of different features distinguishing the commissions from ordinary courts martial or other conventional judicial proceedings.

Are there specific policy rationales for each of those distinctions? Please explain.

Mr. BRADBURY. In his military commissions order, the President determined that

the trial of captured terrorists by court-martial procedures would not be practicable,

and he therefore directed the Department of Defense to convene military commissions that would reflect the military realities of the War on Terror, but that would

still provide detainees with full and fair trials. At that time, the President did not

make the specific procedure-by-procedure determination as to every departure from

the court-martial system that the Supreme Court later held in Hamdan was required by Article 36 of the Uniform Code of Military Justice (the ‘‘UCMJ’’).

Congress has now passed, and the President has signed into law, the MCA. The

MCA relies upon the UCMJ as a starting point and then departs in specific respects

where the court-martial procedures would be impracticable or inappropriate. For example, because many terrorists were captured on the battlefield, strict hearsay rules

that would require foreign nationals and United States military personnel to appear

personally at military commissions would present significant obstacles to the trials

of such enemy combatants. Therefore, the MCA recognizes that the hearsay rules

applicable in courts-martial shall not apply here. See 10 U.S.C. § 949a(b)(2)(E). In

other circumstances, the UCMJ provides protections that exceed those given to

criminal defendants in civilian courts, and that would be inappropriate to provide

to alien unlawful enemy combatants in the military commissions. Congress therefore provided, for example, that Article 31(a), (b), and (d) (concerning the pretrial

right to counsel) and Article 32 (concerning the pretrial investigation) of the UCMJ

shall not apply to military commissions. See id. § 948b(d). More generally, the MCA

provides that the rules issued by the Secretary of Defense shall track those of

courts-martial only insofar as he ‘‘considers practicable or consistent with military

or intelligence activities.’’ Id. § 949a(a). Thus, while the MCA tracks the UCMJ in

many respects, Congress correctly determined that these and other court-martial

provisions should not be employed in military commissions.

Ms. DAVIS. Why doesn’t the Administration try to implement the Hamdan decision by complying with Common Article 3 and modifying the military commissions

to better incorporate due process provisions mentioned by the Court, rather than requesting Congressional action without the benefit of experience?
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Mr. BRADBURY. Congress recognized in the MCA that the procedures enacted

therein fully satisfy the standards of Common Article 3. See 10 U.S.C. § 948b(f). We

agree and believe that the legislation appropriately addresses the concerns raised

by the Supreme Court. Common Article 3 prohibits the ‘‘passing of sentences and

the carrying out of executions without previous judgment pronounced by a regularly

constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’’ Common Article 3 provides no further details as to

the ‘‘judicial guarantees which are recognized as indispensable by civilized peoples,’’

but the MCA, which takes the UCMJ as a starting point, provides extensive procedural protections for the accused that fully satisfy the international standard.

The Supreme Court held in Hamdan that the then-existing military commission

procedures conflicted with Articles 21 and 36 of the UCMJ. The Court did not hold

that any particular commission procedure violated due process or international law.

Nonetheless, several of the Justices, in separate opinions, did express concerns

about some commission procedures, and the new military commission legislation addresses those concerns. For instance, to ensure the impartiality of the tribunal, the

MCA provides that a military judge presides over the commission proceeding with

the traditional authority of a judge to issue final rulings at trial on law and evidence. See 10 U.S.C. § 949l(b). In addition, the MCA provides that the minimum

number of members of the commission is increased to five in non-capital cases, and

twelve in capital cases, so as to track the procedures now in place under the UCMJ.

See id. § 948m(a); id. § 949m(c).

Ms. DAVIS. If you believe Congress can establish non-law-of-war violations that

are subject to trial by military commission (for example, conspiracy or inchoate offenses related to terrorism), do you believe such new offenses could be applied retroactively? If so, under what theory of law?

Mr. BRADBURY. The Administration believes that conspiracy is an offense under

the law of war and is therefore properly triable by military commission. As Justice

Thomas demonstrated in his opinion in Hamdan, that view is supported by historical practice and by authoritative commentators on the law of war. In enacting the

MCA, Congress has appropriately exercised its authority under Article I, Section 8,

to ‘‘define and punish . . . Offenses against the Law of Nations,’’ by specifically authorizing military commissions to try unlawful alien enemy combatants for conspiring to violate the law of war. In so doing, Congress specifically recognized that conspiracy was an offense ‘‘that ha[d] been traditionally triable by military commission.’’ 10 U.S.C. § 950p(a). This determination should make clear that conspiracy remains properly triable by military commission. We also note that conspiracies to

commit the offenses defined as ‘‘war crimes’’ are already prosecutable in federal

court. See 18 U.S.C. § 2441(c)(1); id. § 371. Title 18 likewise prohibits providing material support to terrorism. See id. § 2339A; 2339B. Because conspiring to commit

a war crime or providing material support to terrorism is not a ‘‘new offense,’’ the

prosecution for such a crime would not raise retroactivity concerns.

Ms. DAVIS. What are the specific definitions the Secretary uses for the following

terms:

a. Enemy combatant?

b. Unlawful enemy combatant?

c. War crime?

d. Terrorist?

e. Coercion?

f. Cruel?

g. Humiliating?

h. Degrading?

i. Indignities?

j. Inhuman?

Mr. BRADBURY. The MCA defines many of the terms that you have listed for purposes of military commissions. ‘‘Lawful enemy combatant’’ and ‘‘unlawful enemy

combatant’’ are defined under 10 U.S.C. § 948a. The statute does not specifically define ‘‘enemy combatant,’’ but every combatant will either be a lawful or an unlawful

combatant.

The ‘‘war crimes’’ that violate Common Article 3 as a matter of United States

criminal law are defined in 18 U.S.C. § 2441, as amended by section 6 of the MCA.

In addition, 10 U.S.C. § 950v(b) defines the offenses traditionally triable by military

commission that would generally be understood to constitute war crimes.

The MCA defines the offense of ‘‘terrorism’’ at 10 U.S.C. § 950v(b)(24).

‘‘Cruel, inhuman and degrading treatment’’ is defined in section 6(c) of the MCA.

In addition, the War Crimes Act, as amended by the MCA, defines an offense of

cruel or inhuman treatment. See 18 U.S.C. § 2441(d)(1)(B).
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To the extent your question seeks the particular definitions of other terms em- ployed by the Secretary of Defense, we would refer you directly to the Department

of Defense, which is in a better position to respond.

Ms. DAVIS. Generally, the United States filled GTMO in late 2001 and early 2002, and hundreds of people who have been designated as enemy combatants have been

sitting there for nearly four years in solitary confinement. While hundreds sit there,

the administration has only filed charging documents for ten of them.

Mr. DELL’ORTO. We have no one at Guantanamo who is held in solitary confinement.

Ms. DAVIS. Why have only ten been charged?

Mr. DELL’ORTO. Charging of some of the detainees before military commission commenced in the summer of 2004 and continued into 2005. A number of restraining orders were issued in habeas corpus actions pending before United States District Courts preventing military commissions from proceeding. A decision was made

to delay additional charges until such time as the restraining orders in pending

cases were lifted and the law concerning military commissions was settled. In June

2006, the United States Supreme Court held in Hamdan that the prior structure

of military commissions lacked statutory authorization. Now that Congress has

passed the Military Commissions Act of 2006, the President has signed it into law,

and the Manual for Military Commissions has been promulgated, charges have been

preferred against three individuals. We expect additional individuals will be charged

in the future.

Ms. DAVIS. Are they no longer of intelligence value?

Mr. DELL’ORTO. The United States has no desire to hold detainees any longer than necessary, but transfers are not without risk. We make a determination about

the transfer of a detainee based on the best information and evidence available at

the time, both classified and unclassified. They are of varying degrees of intelligence

value. Remember, some of these individuals are highly skilled in concealing the

truth. Al Qaeda’s training manual, a.k.a. the Manchester Manual, stresses the importance of deception tactics, techniques, and procedures. Once the individual is

transferred, that person becomes the responsibility of his home country and is subject to that country’s laws. About 15 detainees who have been released are reported

to have returned to the fight. The Administrative Review Board (ARB) assesses whether an enemy combatant continues to pose a threat to the United States or its allies, or whether there are

other factors bearing on the need for continued detention. The process permits the

detainee to appear in person before an ARB panel of three military officers to explain why the detainee is no longer a threat to the United States or its allies and

to provide information to support the detainee’s release. The recommendation of the

ARB panel is provided to the Designated Civilian Official (DCO), who then makes

a determination as to whether a particular enemy combatant should continue to be

detained, be transferred, or released.

Ms. DAVIS. What does the government plan to do with the rest of these people?

Mr. DELL’ORTO. See answer above.

Ms. DAVIS. Are we planning to detain them indefinitely (given the Rasul decision

and the indefinite nature of war on a tactic, ‘‘terrorism’’)? For the rest of their natural lives? Until another government agrees to take them? Almost all major conflicts

have a definite end. When in is the end of this ‘‘conflict?’’ How will we know when

it’s over since we likely won’t be signing a peace treaty? Please explain.

Mr. DELL’ORTO. See answer above.

Additionally, the war on terror is different from a conventional war because the

United States is at war against al Qaeda, an international terrorist organization.

Al Qaeda is not a State party to the Geneva Conventions and does not conduct its

operations in accordance with the customs and laws of war.

The law in regard to this matter is the law of war. It is difficult to know during

a war, when the war will be won. We certainly hope that hostilities will not continue for decades, but the law permits detaining enemy combatants until the cessation of hostilities.

Ms. DAVIS. The military commission rules the President approved—and that the

Hamdan court found unlawful—contained a number of different features distinguishing the commission from ordinary courts martial or other conventional judicial

proceedings. Are there specific policy rationales for each of those distinctions? If yes,

what rationales correspond to the specific features of the commissions, and how

were they arrived at? If no, then why is any particular feature of the original rules

indispensable?

Mr. DELL’ORTO. The original military commission rules were formulated to comport with the modern military commission precedent, dating back to the World War

II era as reviewed by the Supreme Court in Ex parte Quirin, 317 U.S. 1 (1942).
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Ms. DAVIS. Why doesn’t the Administration wait to see if it can implement the

Hamdan decision without all the adverse consequences it was warning about? It

could proceed by complying with Common Article 3 and modifying the military commissions to better incorporate due process provisions mentioned by the Court. It

could then report back in a year or two about actual experiences rather than requesting congressional changes without the benefit of experience.

Mr. DELL’ORTO. We at the Department of Defense believe that in Hamdan, the

Supreme Court indicated that Congress and the Executive Branch should work together to address the appropriate procedures governing commissions. We believe

that the recently enacted Military Commissions Act of 2006, the product of such a

joint effort, preserves flexibility in the procedures for military commissions while ensuring that those accused receive a full and fair trial.

Ms. DAVIS. If you believe Congress can establish non-law of war violations that

are subject to trial by military commission (for example, conspiracy or inchoate offenses related to terrorism), do you believe such new offenses could be applied retroactively? If so, under what theory of law?

Mr. DELL’ORTO. The Military Commissions Act of 2006 deals with the question

of retroactivity of new offenses. I believe that it has the appropriate solution.

Ms. DAVIS. What are the specific definitions the Secretary uses for the following

terms:

a. Enemy combatant?

b. Unlawful enemy combatant?

c. War crime?

d. Terrorist?

e. Coercion?

f. Cruel?

g. Humiliating?

h. Degrading?

i. Indignities?

j. Inhuman?

Mr. DELL’ORTO.

Enemy combatant

From the Military Commissions Act of 2006 and for the purposes of trial by military commission:

‘‘(2) LAWFUL ENEMY COMBATANT.—The term ‘lawful enemy combatant’

means a person who is—

‘‘(A) a member of the regular forces of a State party engaged in hostilities

against the United States;

‘‘(B) a member of a militia, volunteer corps, or organized resistance movement

belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry

their arms openly, and abide by the law of war; or

‘‘(C) a member of a regular armed force who professes allegiance to a government

engaged in such hostilities, but not recognized by the United States.

Unlawful enemy combatant

From the Military Commissions Act of 2006 and for the purposes of trial by military commission:

‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful enemy combatant’ means—

‘‘(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is

not a lawful enemy combatant (including a person who is part of the Taliban,

al Qaeda, or associated forces); or

‘‘(ii) a person who, before, on, or after the date of the enactment of the Military

Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

War crime

Under Section 2441 of title 18, United States Code, (c) Definition. As used in this

section the term ‘‘war crime’’ means any conduct—

(1) defined as a grave breach in any of the international conventions signed at

Geneva 12 August 1949, or any protocol to such convention to which the United

States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention

IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
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(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which

the United States is a party and which deals with non-international armed conflict;

or(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and

Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on

3 May 1996), when the United States is a party to such Protocol, willfully kills or

causes serious injury to civilians.

The Military Commissions Act of 2006 amends the previous definition as follows:

(1) IN GENERAL.—Section 2441 of title 18, United States Code, is amended—

(A) in subsection (c), by striking paragraph (3) and inserting the following new

paragraph (3):

‘‘(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed

conflict not of an international character; or’’; and

(B) by adding at the end the following new subsection:

‘‘(d) COMMON ARTICLE 3 VIOLATIONS.—

‘‘(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term ‘grave breach of

common Article 3’ means any conduct (such conduct constituting a grave breach

of common Article 3 of the international conventions done at Geneva August 12,

1949), as follows:

‘‘(A) TORTURE.—The act of a person who commits, or conspires or attempts to

commit, an act specifically intended to inflict severe physical or mental pain or

suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining

information or a confession, punishment, intimidation, coercion, or any reason

based on discrimination of any kind.

‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits,

or conspires or attempts to commit, an act intended to inflict severe or serious

physical or mental pain or suffering (other than pain or suffering incidental to

lawful sanctions), including serious physical abuse, upon another within his custody or control.

‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act of a person who

subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or

dental purpose and in so doing endangers the body or health of such person or

persons.

‘‘(D) MURDER.—The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of

committing any other offense under this subsection, one or more persons taking

no active part in the hostilities, including those placed out of combat by sickness,

wounds, detention, or any other cause.

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‘‘(E) MUTILATION OR MAIMING.—The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection,

one or more persons taking no active part in the hostilities, including those placed

out of combat by sickness, wounds, detention, or any other cause, by disfiguring

the person or persons by any mutilation thereof or by permanently disabling any

member, limb, or organ of his body, without any legitimate medical or dental purpose.

‘‘(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—The act of a

person who intentionally causes, or conspires or attempts to cause, serious bodily

injury to one or more persons, including lawful combatants, in violation of the law

of war.

‘‘(G) RAPE.—The act of a person who forcibly or with coercion or threat of force

wrongfully invades, or conspires or attempts to invade, the body of a person by

penetrating, however slightly, the anal or genital opening of the victim with any

part of the body of the accused, or with any foreign object.

‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act of a person who forcibly or with

coercion or threat of force engages, or conspires or attempts to engage, in sexual

contact with one or more persons, or causes, or conspires or attempts to cause,

one or more persons to engage in sexual contact.

‘‘(I) TAKING HOSTAGES. The act of a person who, having knowingly seized or

detained one or more persons, threatens to kill, injure, or continue to detain such
131

person or persons with the intent of compelling any nation, person other than the

hostage, or group of persons to act or refrain from acting as an explicit or implicit

condition for the safety or release of such person or persons.

‘‘(2) DEFINITIONS.—In the case of an offense under subsection (a) by reason of

subsection (c)(3)—

‘‘(A) the term ‘severe mental pain or suffering’ shall be applied for purposes of

paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in

section 2340(2) of this title;

‘‘(B) the term ‘serious bodily injury’ shall be applied for purposes of paragraph

(1)(F) in accordance with the meaning given that term in section 113(b)(2) of this

title;

‘‘(C) the term ‘sexual contact’ shall be applied for purposes of paragraph (1)(G) in

accordance with the meaning given that term in section 2246(3) of this title;

‘‘(D) the term ‘serious physical pain or suffering’ shall be applied for purposes of

paragraph (1)(B) as meaning bodily injury that involves—

‘‘(i) a substantial risk of death;

‘‘(ii) extreme physical pain;

‘‘(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

‘‘(iv) significant loss or impairment of the function of a bodily member, organ, or

mental faculty; and

‘‘(E) the term ‘serious mental pain or suffering’ shall be applied for purposes of

paragraph (1)(B) in accordance with the meaning given the term ‘severe mental

pain or suffering’ (as defined in section 2340(2) of this title), except that—

S. 3930–36

‘‘(i) the term ‘serious’ shall replace the term ‘severe’ where it appears; and

‘‘(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term ‘serious and non-transitory mental harm (which

need not be prolonged)’ shall replace the term ‘prolonged mental harm’ where it

appears.

‘‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.—The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a)

by reasons of subsection (c)(3) with respect to—

‘‘(A) collateral damage; or

‘‘(B) death, damage, or injury incident to a lawful attack.

‘‘(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.—Paragraph (1)(I) does not apply to an offense under subsection (a) by

reason of subsection (c)(3) in the case of a prisoner exchange during wartime.

‘‘(5) DEFINITION OF GRAVE BREACHES.—The definitions in this subsection

are intended only to define the grave breaches of common Article 3 and not the

full scope of United States obligations under that Article.’’.

(2) RETROACTIVE APPLICABILITY.—The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18,

United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105–118 (as

amended by section 4002(e)(7) of Public Law 107–273).

Terrorist

From the Military Commissions Act of 2006:

TERRORISM.—Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages

in an act that evinces a wanton disregard for human life, in a manner calculated

to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if

death results to one or more of the victims, by death or such other punishment

as a military commission under this chapter may direct, and, if death does not

result to any of the victims, by such punishment, other than death, as a military

commission under this chapter may direct.

‘‘(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.—

‘‘(A) OFFENSE.—Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation

for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who

intentionally provides material support or resources to an international terrorist

organization engaged in hostilities against the United States, knowing that such

organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.
132

‘‘(B) MATERIAL SUPPORT OR RESOURCES DEFINED.—In this paragraph, the

term ‘material support or resources’ has the meaning given that term in section

2339A(b) of title 18.

Coercion

From FM 2–22.3, Human Intelligence Collector Operations (page 5–22):

Although no single comprehensive source defines impermissible coercion, certain

acts are clearly prohibited. Certain prohibited physical coercion may be obvious,

such as physically abusing the subject of an interview or interrogation. Other

forms of impermissible coercion may be more subtle, and may include threats to

turn the individual over to others to be abused; subjecting the individual to impermissible humiliating or degrading treatment; implying harm to the individual or

his property. Other prohibited actions include implying a deprivation of applicable

protections guaranteed by law because of a failure to cooperate; threatening to

separate parents from their children; or forcing a protected person to guide US

forces in a dangerous area.

Cruel

Under section 1003(d) of the Detainee Treatment Act and section 6(c)(2) of the

Military Commissions Act of 2006, the term ‘‘cruel, inhuman, or degrading treatment or punishment’’ means:

the cruel, unusual, and inhumane treatment or punishment prohibited by the

Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United

States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms

of Cruel, Inhuman or Degrading Treatment or Punishment done at New York,

December 10, 1984.

The Military Commissions Act of 2006 further provides:

‘‘(12) CRUEL OR INHUMAN TREATMENT.—

‘‘(A) OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other

than pain or suffering incidental to lawful sanctions), including serious physical

abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission

under this chapter may direct, and, if death does not result to the victim, by

such punishment, other than death, as a military commission under this chapter

may direct.

‘‘(B) DEFINITIONS.—In this paragraph:

‘‘(i) The term ‘serious physical pain or suffering’ means bodily injury that

involves—

‘‘(I) a substantial risk of death;

‘‘(II) extreme physical pain;

‘‘(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

‘‘(IV) significant loss or impairment of the function of a bodily member, organ,

or mental faculty.

‘‘(ii) The term ‘severe mental pain or suffering’ has the meaning given that term

in section 2340(2) of title 18.

‘‘(iii) The term ‘serious mental pain or suffering’ has the meaning given the term

‘severe mental pain or suffering’ in section 2340(2) of title 18, except that—

‘‘(I) the term ‘serious’ shall replace the term ‘severe’ where it appears; and

‘‘(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term ‘serious and non-transitory mental harm (which

need not be prolonged)’ shall replace the term ‘prolonged mental harm’ where it

appears.

Humiliating

The Supreme Court determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with al Qaeda. Common Article 3 prohibits outrages upon personal dignity, in particular, humiliating and degrading treatment. There is no definition of humiliating in Common Article 3 or the

Geneva Conventions of 1949.

Degrading

Under the Detainee Treatment Act, Section 1003(d) and the Military Commissions

Act of 2006, the term ‘‘cruel, inhuman, or degrading treatment or punishment’’

means:
133

the cruel, unusual, and inhumane treatment or punishment prohibited by the

Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United

States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms

of Cruel, Inhuman or Degrading Treatment or Punishment done at New York,

December 10, 1984.

Indignities

There is no definition of the term ‘‘indignity’’ in Department of Defense policies

or regulations. As stated above, the Supreme Court has determined that Common

Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with al Qaeda. Common Article 3 prohibits outrages upon personal dignity.

There is no definition of the term ‘‘outrages upon personal dignity’’ in Common Article 3 or the Geneva Conventions of 1949.

Inhuman:

Under the Detainee Treatment Act, Section 1003(d) and the Military Commissions

Act of 2006, the term ‘‘cruel, inhuman, or degrading treatment or punishment’’

means:

the cruel, unusual, and inhumane treatment or punishment prohibited by the

Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United

States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms

of Cruel, Inhuman or Degrading Treatment or Punishment done at New York,

December 10, 1984.

The Military Commissions Act of 2006 further provides:

‘‘(12) CRUEL OR INHUMAN TREATMENT.—

‘‘(A) OFFENSE.—Any person subject to this chapter who commits an act intended to inflict severe or serious physical or mental pain or suffering (other

than pain or suffering incidental to lawful sanctions), including serious physical

abuse, upon another within his custody or control shall be punished, if death results to the victim, by death or such other punishment as a military commission

under this chapter may direct, and, if death does not result to the victim, by

such punishment, other than death, as a military commission under this chapter

may direct.

‘‘(B) DEFINITIONS.—In this paragraph:

‘‘(i) The term ‘serious physical pain or suffering’ means bodily injury that

involves—

‘‘(I) a substantial risk of death;

‘‘(II) extreme physical pain;

‘‘(III) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

‘‘(IV) significant loss or impairment of the function of a bodily member, organ,

or mental faculty.

‘‘(ii) The term ‘severe mental pain or suffering’ has the meaning given that term

in section 2340(2) of title 18.

‘‘(iii) The term ‘serious mental pain or suffering’ has the meaning given the term

‘severe mental pain or suffering’ in section 2340(2) of title 18, except that—

‘‘(I) the to ‘serious’ shall replace the term ‘severe’ where it appears; and

‘‘(II) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term ‘serious and non-transitory mental harm (which

need not be prolonged)’ shall replace the term ‘prolonged mental harm’ where it

appears.

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