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32–985 2008

[H.A.S.C. No. 109–120]

STANDARDS OF MILITARY COMMISSIONS

AND TRIBUNALS

HEARING

BEFORE THE

COMMITTEE ON ARMED SERVICES

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

HEARING HELD

SEPTEMBER 7, 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 RODGERS, 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:

Thursday, September 7, 2006, Standards of Military Commissions and Tribunals ........................................................................................................................ 1

APPENDIX:

Thursday, September 7, 2006 ................................................................................. 57

THURSDAY, SEPTEMBER 7, 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 .................................................................................... 2

WITNESSES

Black, Maj. Gen. Scott C., Judge Advocate General, U.S. Army ......................... 6

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

Counsel, Department of Justice .......................................................................... 3

Dunlap, Maj. Gen. Charles J., Jr., Deputy Judge Advocate General, U.S.

Air Force ............................................................................................................... 8

MacDonald, Rear Adm. Bruce E., Judge Advocate General, U.S. Navy ............. 7

Reed, Col. Ronald M., Legal Counsel to the Chairman of the Joint Chiefs

of Staff, U.S. Air Force ........................................................................................ 10

Walker, Brig. Gen. James C., Staff Judge Advocate to the Commandment,

U.S. Marine Corps ............................................................................................... 9

APPENDIX

PREPARED STATEMENTS:

Black, Maj. Gen. Scott C. ................................................................................. 71

Bradbury, Steven G. ......................................................................................... 61

Dunlap, Maj. Gen. Charles J., Jr. ................................................................... 79

MacDonald, Rear Adm. Bruce E. .................................................................... 74

Walker, Brig. Gen. James C. ........................................................................... 84

DOCUMENTS SUBMITTED FOR THE RECORD:

[There were no Documents submitted.]

QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:

[There were no Questions submitted.]

(1)

STANDARDS OF MILITARY COMMISSIONS AND

TRIBUNALS

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Thursday, September 7, 2006.

The committee met, pursuant to call, at 10:05 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 meets today on the future of mili- tary commissions, and I would like to welcome the distinguished

panel that is prepared to testify to us on that subject. Mr. Steven

Bradbury, Acting Assistant Attorney General, Office of Legal Counsel of the Department of Justice; and Major General Scott Black,

the Judge Advocate General of the Army. Rear Admiral Bruce MacDonald, the Judge Advocate General of the Navy; Major General

Charles Dunlap, Jr., Deputy Judge Advocate General of the Air

Force; Brigadier General James C. Walker, Staff Judge Advocate to

the Commandant of the Marine Corps; Colonel Ronald Reed,

USAF, Legal Counsel to the Chairman of the Joint Chiefs of Staff.

Thank you, gentlemen, for being with us today and contributing

to this important discussion.

Today we hear from the Administration on its recommendations.

We also hear from our top military lawyers and we want to have

the advantage of their thinking on the Administration’s recommendations.

The war against terror has produced a new type of battlefield

and a new type of enemy. It is necessary at this point for Congress

to develop a military commission process that is going to allow us

to have effective prosecution of enemy terrorists, and while we

need to provide basic fairness in our prosecutions, we must also

preserve the ability of our warfighters to operate effectively on the

battlefield. Balancing these two requirements means that we must

pay special attention to the rules of evidence and the procedures

used in any military commission process. My own interest is to protect our troops in the battlefield from becoming involved in a legal

quagmire, which would prevent us from effectively pursuing terrorists, and also to ensure that America can effectively protect its citizens. Our foremost consideration should be protecting American

troops and American citizens.

The Administration has worked with the Congress and the Judge

Advocate Generals (TJAGs) who are with us here today. I look for-
2

ward to working with the President, the Senate, with my colleagues on the committee to construct a new process which strikes

this necessary balance between justice and battlefield effectiveness

and provides the legal standard in the coming decades in the war

against terror.

I think a fair process has two guiding principles. First, the government must be able to present its case fully, and without compromising its intelligence sources or compromising military necessity and, second, the prosecutorial process must be done fairly

swiftly and conclusively.

The Administration’s proposed legislation also touches two areas

that fall outside military commissions: The applicability of Common Article 3 to the War Crimes Act and the applicability of the

Detainee Treatment Act of 2005 to detainees held prior to the enactment of this statute. I believe we should closely scrutinize both

of these issues, and I look forward to the panel’s comments on

those. So let us get started. We have got a lot of work to do.

Let me before we go to our witnesses turn to the fine gentleman

from Missouri, my great colleague, Mr. Skelton, for any remarks he

would like to make.

STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE

FROM MISSOURI, RANKING MEMBER, COMMITTEE ON

ARMED SERVICES

Mr. SKELTON. Mr. Chairman, thank you. This is a very important hearing. We will listen very closely to your thoughts and recommendations. We do know some of them and appreciate you being

with us. We are somewhat at a disadvantage because we only received the Administration’s proposed budget legislation late yesterday afternoon, although we have talked about these issues for quite

some time. It is critical to look at the words on the page and how

each approaches include or are pieced together.

And Mr. Bradbury, from you I would like to know why in the

world it took so long for this proposal to get to us. We have been

talking about it for some time. We have been waiting to assist the

President, provide him with important tools. It is terribly important that we pass some. In light of the Hamdan decision we can’t

go on in limbo. We must protect our troops and front line. We must

be as stern and yet as fair as possible.

One approach would be for the war military commissions as they

exist under the Uniform Code of Military Justice (UCMJ), which is

mentioned in UCMJ, or is this a proposal of a new kind for a new

court under military jurisdiction? Unlike other specialized courts

such as the Foreign Intelligence Surveillance Act (FISA) court that

is in existence, although not in use as we know, a couple of key

principles to evaluate this is will this allow us to quickly and successfully prosecute terrorists? Will this system meet the requirements clearly laid out in by the Supreme Court in the Hamdan

case? How closely does it adhere if we take this approach to the

Uniform Code of Military Justice and does it rigorously maintain

standards that protect American forces on the battlefield?

Well, gentlemen, we are looking forward to your views. We look

forward to your thoughts on how the proposed legislation is enshrined in the Geneva Convention, including Common Article 3,
3

but like I say, the most important thing is to protect our troops on

the battlefield, to have swift justice and as only Americans can give

fair justice.

Thank you, Mr. Chairman.

The CHAIRMAN. I thank the gentleman. And Mr. Bradbury, why

don’t you tee this thing up for us and tell us about the Administration’s proposal?

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 distinguished members of this committee.

The President announced yesterday that 14 senior members of al

Qaeda had been transferred to the U.S. Naval Base at Guantanamo Bay. These men include those who orchestrated the murders

of nearly 3,000 Americans on 9/11, the attack on the USS Cole, and

the bombings of the American embassies in Kenya and Tanzania.

In U.S. custody these individuals provided intelligence invaluable

in the war on terror that has prevented attacks on the United

States and saved American lives. As the President stated, the time

now has come for the United States to prosecute these and other

terrorists for the atrocities of 9/11 and their own war crimes.

Yesterday the President sent to Congress a Military Commission

bill that will permit us to bring these terrorists to justice before

fair and effective tribunals. This legislative proposal reflects the

outcome of two months of intensive discussions within and across

the executive branch and between the political branches of government. We have consulted extensively with Members of Congress

and their staffs. These discussions have been equally extensive,

even more so, within the Administration and have included input

from the military lawyers in all branches of the armed services, including the TJAGs who are here today. They and their people have

been active participants in our deliberations and many of their

comments have been incorporated into the draft now before Congress.

The proposed legislation would enact a new Code of Military

Commissions modeled on the courts-martial procedures of the Uniform Code of Military Justice, or the UCMJ, but adapted for use

in the special context of military commission trials.

These military commission procedures would provide for fundamentally fair trials. The accused will know the charges against

him. He will be presumed innocent until proven guilty beyond a

reasonable doubt. He will have a right to counsel, including an appointed military defense counsel, and the ability to retain private

counsel. He will be given a reasonable opportunity to obtain witnesses and other evidence, including evidence in the possession of

the government. The prosecution will be required to disclose exculpatory evidence, evidence known to it. The accused will have the

right to cross-examine witnesses who testify for the prosecution. He

will have the right not to testify against himself. Evidence may be

admitted only if the military judge finds that it would have probative value to a reasonable person, and it must be excluded if its

probative value is substantially outweighed by the danger of unfair
4

prejudice. The accused will have the right to at least two appeals

from any conviction, including an appeal to an Article 3 court, and

he may not be tried a second time for the same offense.

The new Code of Military Commissions would differ in significant

respects from the military commission procedures established by

the Administration before Hamdan. The presiding officer would be

a certified military judge with the traditional authority of the judge

to make final rulings at trial on law and evidence, just as in courtsmartial. The minimum number of commission members would be

increased to five from three. In death cases we would require a

minimum of 12 members who would have to vote unanimously before a death sentence could be imposed.

While the President’s legislation tracks the UCMJ, in many respects it departs from court-martial procedures where applying

them would be inappropriate or impractical. For instance, we do

not incorporate into the legislation the UCMJ’s Miranda type protections for U.S. military personnel. Nor do we incorporate the precharging investigation under Article 32. Terrorists are not entitled

to these protections, which might frustrate interrogations vital to

our national security.

The draft legislation also provides for the introduction of all probative and reliable evidence, including hearsay evidence. Military

commissions must try crimes based on evidence collected everywhere from the battlefields in Afghanistan to foreign terrorist safe

houses, and therefore they can not apply the strict rules of evidence appropriate for peacetime or court-martial trials.

The draft legislation also provides that under very limited circumstances classified evidence may be considered by the commission outside the presence of the accused. In the midst of the current conflict, we cannot share with captured terrorists the highly

sensitive intelligence relevant to some military commission prosecutions. We believe it critical to ensure that military commissions

have the discretion to admit classified evidence not shared with the

accused in extraordinary circumstances.

The circumstances for exclusion will be detailed and narrowly defined, and the military judge will be required to find that exclusion

is necessary and consistent with the accused’s rights to a fair trial.

These will not be trials in absentia. These procedures, properly administered by the military judge, would strike the appropriate balance between safeguarding our Nation’s secrets and ensuring a fair

trial of the accused.

The legislation submitted by the President, Mr. Chairman, also

addresses, as you stated, the Supreme Court’s ruling that Common

Article 3 applies to our armed conflict with al Qaeda. The United

States has never before applied Common Article 3 to a conflict with

international terrorists. Common Article 3 contains certain vague

prohibitions, including a prohibition on, quote, outrages upon

human dignity, in particular humiliating and degrading treatment.

These terms are susceptible of uncertain and unpredictable application, and the Supreme Court has stated that courts may look to

international tribunals in interpreting these terms. Therefore,

without clarification the meaning of Common Article 3, which is

the standard that now applies to the conduct of U.S. personnel in

the war on terror, would be informed by the evolving interpreta-
5

tions of tribunals and governments outside the United States. This

will create unacceptable uncertainty for U.S. personnel, both military and intelligence personnel, who handle detainees in the war

on terror.

Let me be clear, as the President stated yesterday, the United

States does not torture and the President has not and will not authorize torture. The President also supports and the United States

is committed to complying with the McCain Amendment to the Detainee Treatment Act, which prohibits cruel, inhumane, and degrading treatment as defined in U.S. law by reference to our own

constitutional standards.

Because the standards governing the treatment of detainees by

United States personnel should be certain and defined clearly by

U.S. law, the President’s legislation would define our obligations

under Common Article 3 by reference to the U.S. constitutional

standards already approved by Congress in the McCain Amendment. Congress rightly assumed that the McCain Amendment provided an acceptable and appropriate baseline to government of the

treatment of detainees on the war on terror and that standard fully

satisfies United States obligations under international law.

The Administration also believes that we owe it to those called

upon to handle detainees in the war on terror to ensure that legislation addressing the Hamdan decision brings clarity and certainty

to the War Crimes Act. To that end, the proposed legislation sets

forth a definite and clear list of offenses serious enough to be considered war crimes punishable as the most serious breaches of

Common Article 3, including clear and serious outrages upon

human dignity such as rape, sexual assault and conducting human

experiments.

Mr. Chairman, I look forward to discussing these subjects with

the committee this morning, and I thank you and the committee.

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

Appendix on page 61.]

The CHAIRMAN. Mr. Bradbury, thank you for a very concise opening statement, and gentlemen, the reason we have asked your attendance this morning is to reflect on and give us your evaluation

of the Administration’s proposals. So I hope you were listening to

what the high points or the important points especially with respect to classified treatment of classified evidence and hearsay evidence. And if you would give us your thoughts on the Administration’s proposal that would instruct us greatly.

So, and I just might comment. I was kind of surprised. We went

over—we have done some hearings on this area and when we did

the side by side and we looked at Nuremburg and we looked at the

other tribunals, it occurred to me that the—that first I think a

number of the members, myself included, were surprised that hearsay evidence is allowed in varying degrees in these tribunals, but

it also appeared to me that at Nuremburg when we were trying the

Nazi war criminals, we had the advantage of thousands of witnesses in some cases who had participated in the capitulated government and were available to testify against Nazi leadership.

The war on terror in this case continues and many of the statements that were linked, much of the evidence I would think instinctively because I haven’t seen the case against people like
6

Khalid Sheikh Mohammed, who is thought by our intelligence community to be the mastermind behind the strike on America on 9/

11, that much of the evidence that will be forthcoming in the near

term with these immediate cases that are going to be set up for

prosecution and over the years will be evidence that is in fact hearsay evidence. It would also occur to me that a great deal of it is

going to be classified evidence. So dealing with those two areas, I

think in a way that will allow us to have an effective prosecution

is going to be a major challenge for us.

So just having said that, why don’t we walk down the line here

and gentlemen, we are very interested in your comments and your

evaluation of the Administration’s proposal.

General Black.

STATEMENT OF MAJ. GEN. SCOTT C. BLACK, JUDGE

ADVOCATE GENERAL, U.S. ARMY

General BLACK. Thank you, Mr. Chairman, Ranking Member

Skelton, and members of the committee. I would like to thank you

for the opportunity to appear before you today and for the committee’s timely and thoughtful consideration of these significant issues.

I would also like to express my heartfelt gratitude to the members and staff of this committee for your continuing hard work on

behalf of the Army’s soldiers, civilians and family members. We

really do appreciate what you do each and every day.

At the outset, I will tell you that military commissions are a necessary forum for the trial of enemy combatants captured in the

Global War on Terror (GWOT). They are legally viable and pragmatically vital. They allow us to maintain the maximum flexibility

in coping with these combatants we find on the current battlefield.

Military commissions are well grounded in history and the Uniform

Code of Military Justice and provide an indispensable tool to ensure justice under the rule of law.

The Hamdan decision has reinforced our need to ensure military

commissions are reflective of American values such as due process

and the rule of law. Our task has been to balance the utility of the

military commissions with these values that are foundational to

our democratic society. We have been working within the government to assemble a product that will do this, that will not only protect this great Nation from those who are committed to destroy it

but that will simultaneously uphold the principles that distinguish

this Nation from those who attack it.

We are prepared to work together with the Congress and look

forward to being participants in the continuing developmental process. And with that, Mr. Chairman, I look forward to your questions.

[The prepared statement of General Black can be found in the

Appendix on page 71.]

The CHAIRMAN. Thank you, General Black. For the record all

statements, without objection, will be taken, all written statements

will be taken into the record and feel free to summarize your statements. Let me just ask our panel we understand that you are

ready to work with the Congress and you feel this is a—you have

opinions on whether this is a good product or not a good product.

We would like to hear that, but I would also like to hear your
7

thoughts especially on these area of classified evidence, hearsay

evidence, evidence obtained by coercion, some of these challenges

that we are going to have to meet as we put this construct together. So if you could comment on that, that would be greatly appreciated.

So Admiral MacDonald, thank you for being with us today.

STATEMENT OF REAR ADM. BRUCE E. MACDONALD, JUDGE

ADVOCATE GENERAL, U.S. NAVY

Admiral MACDONALD. Good morning, Mr. Chairman, Ranking

Member Skelton, members of the Armed Services Committee.

Thank you for the opportunity to testify today on the subject of

military commissions.

The CHAIRMAN. Before you start, let me ask my colleagues, we

are going to have other—if other members who are not members

of the committee would like to sit in on either side of the aisle, it

is my feeling we should let them sit in and after our questions are

finished, we should let them ask questions. Without objection, let

us let that occur. So ordered.

Go ahead, Admiral.

Admiral MACDONALD. Congress’ establishment of a legal permanent framework for military commissions, a Code of Military Commissions, would be a welcome addition to military jurisprudence.

My view is that existing court-martial rules are not practical for

the prosecution of unlawful enemy combatants now or in future

conflicts.

Yet our military justice model, the Uniform Code of Military Justice, can provide an appropriate starting point for the drafting of

commission legislation. We have been working with others in the

executive branch to formulate precisely such a bill. I recommend

that legislation establish the jurisdiction of military commissions,

set baseline standards of structure, procedure and evidence consistent with U.S. law and the law of war and proscribe all substantive

offenses.

The legislation should further authorize the President to promulgate supplemental rules of practice similar to the manual for courtmartial or in this case a manual for military commissions. The legislation proposed by the President generally accomplishes those

goals.

I and other military lawyers have worked with many others in

the Administration to incorporate these ideas into the draft legislation recently submitted before you. It reflects many of our comments, although there are some issues, particularly the use of classified evidence, where I would stand by the approach to that taken

by the Uniform Code of Military Justice. It is Congress, however,

that will make the final decision on these issues. I am confident in

so doing that we can achieve the necessary and appropriate balance between affording an accused the judicial guarantees recognized as indispensable by civilized people on the one hand and/or

valid national security interests on the other.

Mr. Chairman, you asked that we comment on some specifics

that you talked about with respect to hearsay. It would be my opinion that the hearsay proposal that the Administration has for-
8

warded is adequate as it currently stands in the draft bill that you

have before you.

With respect to coerced statements, it would be my position that

I would not—I would recommend that the committee look at not allowing coerced statements, that the statements that are obtained

under torture are excluded under the current commission rules.

However, statements obtained through coercion if they meet a reliability and probative test are admitted. I would recommend that

the committee look to the Detainee Treatment Act and the cruel,

inhumane and degrading treatment standard and apply that standard as well to statements that may or may not be coerced, and I

would leave that determination to the military judge in charge of

the commission to balance those competing interests.

Thank you, Mr. Chairman.

[The prepared statement of Admiral MacDonald can be found in

the Appendix on page 74.]

The CHAIRMAN. Okay. Thank you very much, Admiral. General

Dunlap.

STATEMENT OF MAJ. GEN. CHARLES J. DUNLAP, JR., DEPUTY

JUDGE ADVOCATE GENERAL, U.S. AIR FORCE

General DUNLAP. Thank you, Mr. Chairman, Ranking Member

Skelton, and distinguished members of the committee.

Major General Rives, the Judge Advocate General, is traveling

overseas. Accordingly, I appreciate the opportunity to appear before

you today as this committee carefully considers the authority of the

United States to prosecute suspected terrorists, consistent with the

Supreme Court’s decision in Hamdan v. Rumsfeld, and Mr. Chairman, with your permission I am going to summarize my statement.

The CHAIRMAN. Go right ahead.

General DUNLAP. It will be in the record.

The Uniform Code of Military Justice and the Manual for CourtsMartial provided a superior starting point for development for a revised commission process and there will of course, as Admiral MacDonald indicated, necessarily be adjustments and changes from the

manual and the Uniform Code. However, many of these processes

can be readily adapted to meet the needs of military commissions

and at the same time meet the requirements of Common Article 3

of the Geneva Conventions. The proposal submitted to Congress by

the President reflects an attempt to adapt the UCMJ to the military commissions process. I personally support many, if not most,

of these provisions.

A revised approach to military commissions is not only the right

thing to do, but it also serves a pragmatic military purpose in helping us in the Global War on Terror.

Success in this war requires cooperation of many nations around

the world, and addressing the Supreme Court’s concerns about

military commissions will reaffirm our position on the moral and

legal high ground. A process fully compliant with Common Article

3 will enhance our standing internationally and empower our allies

to embrace the legal reasoning and architecture behind the prosecution of military commission cases. Doing so is plainly in our

warfighting interests. I look forward to discussing these issues with

the committee.
9

Mr. Chairman, with respect to your specific questions I concur

with Admiral MacDonald in his view of the legislation.

With respect to coerced statements, I would say that every interrogation is coercive to some degree and what we are looking at here

is unlawful coercion, and the concepts that Admiral MacDonald indicated I think are the right ones to do. I would leave it up to the

military judge to determine in that context whether or not the interests of justice are served by admitting the statement.

[The prepared statement of General Dunlap can be found in the

Appendix on page 79.]

The CHAIRMAN. Okay. Thank you, General. General Walker,

thank you for being with us today. The floor is yours.

STATEMENT OF BRIG. GEN. JAMES C. WALKER, STAFF JUDGE

ADVOCATE TO THE COMMANDMENT, U.S. MARINE CORPS

General WALKER. Thank you, Chairman Hunter. Members of the

committee, good morning. I want to thank you for the opportunity

to be here today and for your committee’s continuing interest in the

military commission process.

Since the Supreme Court decision in Hamdan v. Rumsfeld back

in June there has been a lot of discussion and debate on the future

course of the commissions and of course yesterday the President

announced a new legislative proposal. All the proposed solutions

must achieve that delicate balance between individual due process

and our national security interest. We must maintain our Nation’s

ability to deal with terrorists and unlawful enemy combatants, but

at the same time we must also provide those judicial guarantees

which are recognized as indispensable by civilized people.

While we seek that balance we also must remember the concept

of reciprocity. What we do and how we treat these individuals can

in the future have a direct impact on our servicemen and women

overseas. I have reviewed the administrative proposal legislation

submitted yesterday and I think it does provide a solid foundation

to achieve these balances.

I personally remain concerned about any process which would

permit the introduction of evidence against an accused outside of

his presence. I simply believe the right to see the evidence against

you and to be present when evidence is presented are fundamental

to a full and fair trial and are also part of those judicial guarantees

which are recognized as indispensable by civilized people.

This may require in particular cases, I understand, that the government would have to balance and then have to balance the need

for prosecution on a particular charge against the need to protect

certain classified information.

I concur with the comments of Admiral MacDonald and General

Dunlap as to hearsay evidence. I think that the proposals on hearsay evidence do provide adequate safeguards. They conform with

the accepted legal standards but also recognize the unique character of the conflict we are in now and the availability of evidence

and the availability of witnesses worldwide.

Like my counterparts, I look forward to working with Congress

to create a system that will simultaneously help defend our Nation

from those who seek to destroy it but also uphold the values which

have set us apart for over 230 years. Thank you, sir.
10

[The prepared statement of General Walker can be found in the

Appendix on page 84.]

The CHAIRMAN. Thank you very much. Colonel Reed.

STATEMENT OF COL. RONALD M. REED, LEGAL COUNSEL TO

THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF, U.S. AIR

FORCE

Colonel REED. Thank you for the opportunity to come here this

morning and speak to you about this extremely critical issue. I do

not have a written statement to provide. I was notified late that

I would be attending this hearing.

The CHAIRMAN. That may be good, Colonel Reed. Go right ahead.

Colonel REED. I am happy to answer any questions you have

today. With respect to my opinion on the draft of legislation that

has been offered by the Administration and my discussions with

General Pace, the Chairman of the Joint Chiefs, I am comfortable

that the balance that is established in the legislation meets the requirements of fundamental fairness that you talked about at the

beginning and also at the same time allows us to operate effectively

on the battlefield. We feel that the language in the legislation, the

protections that are articulated in the legislation, particularly with

respect to the issues you identified, hearsay, coercion and access to

classified information, provide the appropriate balance as well as

providing that stopgap safeguard of a military judge making decisions based on the rules presented.

So I am happy to answer questions that you have today. Thank

you.

The CHAIRMAN. Thank you, Colonel Reed. Gentlemen, let us get

right to work and talk about practical aspects of this proposal.

If you have a defendant and the key information; that is, the evidence that would convict him or her, is classified evidence, we have

a procedure under UCMJ where you have attorneys, an attorney,

a gentlemen or a lady wearing a uniform with a clearance who can

in camera, the attorney for the accused confronts that evidence,

cross-examines with respect to that evidence and treats that evidence. You have an opportunity at least through counsel to confront the classified evidence that is utilized against you. If you

have a defendant, an alleged terrorist who fires his government attorney and hires a civilian attorney and the evidence that would

convict that terrorist is classified and if you allowed the people or

the process, the sources and methods, if you will, to be identified

and to have that get out it would mean that people would die and

that valuable information would be lost. And so you can’t compromise that classified evidence by giving it to the defendant. Nor

can you—nor can you compromise it by giving it to his attorney

who does not have security clearances and perhaps has no interest

in keeping that evidence secret.

What do you do? Do you—does the court—can the court appoint

for purposes of confronting that classified evidence only a court appointed JAG lawyer with the necessary clearances? Do you drop

that evidence and in doing so dismiss or cause a dismissal of the

case? What happens? What do you think, Mr. Bradbury?

Mr. BRADBURY. Mr. Chairman, one way to handle that is not to

let the accused fire his military defense counsel, the appointed de-
11

fense counsel. One way to handle it is to require that all of these

accused in these military commissions will have an appointed military defense counsel who will have the necessary clearances and

will be able to get access to any evidence that is proposed to be

used against the accused.

The CHAIRMAN. You have a provision like that in the Administration proposal where you cannot because you rarely see a case

where you are not allowed to fire your counsel?

Mr. BRADBURY. Well, we don’t have a provision that expressly

satisfies that but we have a provision that makes it clear that each

accused will have an appointed military defense counsel, and it is

envisioned that that is an essential part of these procedures.

The CHAIRMAN. But it also allows for defendants to have their

own counsel and I think you can imagine that some of these high

profile people, some of the people who are alleged to have participated in the attack on the United States at 9/11 will have plenty

of money available and will have civilian counsel available and will

be in a position at one point to walk in and tell the judge that they

want to get rid of their court appointed military counsel with the

necessary clearances. What then?

Mr. BRADBURY. Well, we would envision that you—it would not

be appropriate and is not a necessary requirement that you allow

these accused to represent themselves in trials to turn in——

The CHAIRMAN. I am not talking about representing yourselves.

I am talking about substituting out their military counsel for their

paid and perhaps very well paid civilian counsel who do not have

clearances and with whom you can’t entrust highly classified information. What do you do?

Mr. BRADBURY. Mr. Chairman, that is why we would require that

every accused get an appointed military defense counsel. If he hires

a private counsel he has a right to do that. If he hires a private

counsel, we would provide that the military counsel would be the

associate counsel to the hired counsel. But in the circumstances

you described, it is precisely because of circumstances like that

where it is essential for these procedures to work in an orderly and

efficient fashion and in a fair fashion that there be a counsel appointed by the military that is cleared in and has the ability to

treat all of that evidence and handle these matters, and it just has

to be that way in my view.

In addition, I would quickly point out in addition to that, in the

proposal we have put forward there are many procedural hurdles,

requirements, and limitations that would have to be met before any

classified evidence would be considered by the military commission

outside the presence of the accused. Lots of procedural hurdles and

findings the military judge would need to make. Alternatives would

need to be explored such as the use of summaries or substitutes,

et cetera, and in all cases there would be at least one military

counsel or private counsel that would get access to that information. So it is limited to extraordinary circumstances, and I think

that is the best way to approach it.

The CHAIRMAN. If we placed in the legislation a provision that

said that at all times the accused must have a defense counsel with

sufficient security clearances to participate in any proceeding, especially with respect to this classified evidence, including ex parte or
12

an in camera presentation with respect to classified information,

would that be—would that give any value added to this proposal?

Mr. BRADBURY. That would be acceptable and may be a good

idea, yes.

The CHAIRMAN. You have laid out how the Administration proposes to deal with this classified information. Let us walk down the

line here.

General Black, what do you think?

General BLACK. Yes, sir. You have hit on the real key issue here,

the balance between protecting our national interests and our security and skill providing a full and just trial for these unlawful combatants. As Mr. Bradbury said, the proposed legislation does indeed contain a great number of safeguards in this process, many

of which mirror what we have in Military Rule of Evidence 505

that you alluded to earlier. And I commend the Department of Justice and all of the people that have worked on this in terms of getting this as far as we have. We really have strengthened the procedures and we can be quite proud of that.

I remain concerned about a couple of things, though, and I would

add a little bit to this package with respect to the introduction of

classified evidence.

The CHAIRMAN. Go right ahead.

General BLACK. I am concerned, one, that the package does not

contain a provision that would prohibit the admission of evidence

outside of the presence of the accused when that evidence is the

sole evidence admitted to establish a material fact. If you follow.

If it is the only piece of evidence that is necessary to convict, then

I remain concerned about excluding the accused.

The CHAIRMAN. Now let me ask you on this point. If you have—

let us take a hypothetical situation—a person hands a piece of prohibited information or secret information in furtherance of a terrorist plot over the fence to a fellow terrorist at a—let us say at a

military base, an American agent who is undisclosed sees that. He

is a trusted agent. He knows the people. He sees the hand-off and

yet the last thing you want to do is to reveal that agent’s identity.

According to what you have just said—and that is the only piece

of evidence that you have that would convict this particular person,

yet it seems to be highly reliable and the person who sees it is a

member of the Armed Forces and he knows the parties who make

the hand-off. But according to what you have just said, you would

drop the case against that alleged terrorist on the basis that you

don’t want to—that you don’t want to prevent him from confronting

his accuser who in this case can’t be confronted because he is an

agent. Is that what you are saying?

General BLACK. No, sir. I am saying you would drop that piece

of evidence.

The CHAIRMAN. But I want to pin you down here, General. That

is the only piece of evidence that you have. You know, some of

these acts of complicity in terrorist operations or plots are very

small pieces. The guy that drives the car, the guy that delivers the

document, and you don’t have in many cases other broad evidence.

And yet that obviously is very probative. If in fact you see that person is seen by an American agent handing off a document which

furthers a plot to kill Americans, that is obviously very probative.
13

That is enough to convict him and yet if you are saying that if that

is the only piece you have, you have to let him walk. Is that right?

General BLACK. If you get to the end of that trail, you do. You

are skipping the safeguard that we already have put in place and

we have a number of mechanisms that have been drawn by 505

summarization of the evidence, alternative forms of testimony or

alternative forms of evidence that comes in to provide the same

kind of information so that the case can go forward. I think if you

get to that trail and you have gone through all of those things and

the military judge has determined that it is still probative, I think

then you have to exclude the evidence if the accused is not allowed

to see it.

The CHAIRMAN. Please understand, in the hypothetical I am giving you there isn’t additional evidence and if you can—if you say

a summary of the evidence, summary of the evidence does not

amount to face-to-face confrontation by a defendant or his attorney.

So I know I am asking the tough questions, the problem is the

tough questions are the ones that are going to arise when we put

this system in place. You are saying that if you had that one piece

of probative evidence itself based on an agent’s statements whose

identity we can’t disclose that and you would drop that case rather

than allow an in camera examination by a cleared court appointed

military counsel; is that what you are saying?

General BLACK. I believe the accused should see that evidence.

In the example you provided, I believe the accused should see that.

I would add one additional protection. I would add a jury instruction. I think the members of the commission with evidence that the

accused has not been allowed to see, assured we get that far, I believe that the members of the commission should be advised that

the accused has not seen that evidence, has not had an opportunity

to confront that evidence and the members of the commission

should be advised to accord appropriate weight to that evidence.

The CHAIRMAN. I understand that. Now that is assuming that we

have a rule that does allow for a conviction without the person

being able to see the evidence.

General BLACK. Roger, Sir.

The CHAIRMAN. But your position is if that is the evidence that

convicts that person it is a Khalid Sheikh Mohammed or anybody

else should be allowed to personally confront that person—maybe

it is an American agent—and without that confrontation should

be—if that is the only probative evidence then the case should be

dropped.

General BLACK. If it is the sole evidence to prove the material

fact.

The CHAIRMAN. Fair enough. That is your position. Admiral,

what do you think?

Admiral MACDONALD. Yes, sir. I agree with General Black. I believe that is required under Common Article 3 as one of the judicial

guarantees recognized as indispensable by all civilized nations. I

think that is so important in this context to get that balance right.

The CHAIRMAN. Okay. But let me offer you the caveat, though.

What the Administration apparently has offered and is the idea

that you would have, while Khalid Sheikh Mohammed might not

be able to see the identity of that agent and cross-examine him, his
14

attorney, a court appointed attorney, a judge appointed attorney

who is appointed for that purpose of cross-examining the

nondisclosable information or nondisclosable persons would do that,

would be allowed to do that cross-examination, do that confrontation and examination. You are saying even with that safeguard unless Khalid Sheikh Mohammed himself got to see the agent then

you would not move forward.

Admiral MACDONALD. Yes, sir.

The CHAIRMAN. What is your answer?

Admiral MACDONALD. I would not let it go forward. And part of

the reason is the—as the commission rules are currently constituted, the defense counsel cannot talk to their client about the

classified information either. So I think that they need, the defense

needs to be able to talk to their client about the evidence that has

been presented in your hypothetical if it is the only piece of evidence. What essentially we have set up is a commission where the

accused is going to be excluded from the entire commission process.

If that is the only evidence that the government is going to present,

the accused won’t be in the commission to hear any of the evidence

that is introduced against them.

The CHAIRMAN. Well, now are you conclusively sure that the

counsel could not communicate in any way to the accused about the

accusation. There may be aspects, there may be aspects of the accusations of the evidence which are not classified.

Admiral MACDONALD. He could communicate about those unclassified but in your hypothetical——

The CHAIRMAN. He couldn’t disclose the identity?

Admiral MACDONALD. He could not disclose anything that the

military judge determined was classified and necessary to come in.

And if it was the only piece of evidence I would have serious concerns about preceding in a military commission under those circumstances.

I would also add, sir, that even under the commission rules as

currently constituted, there is a provision at the end under this

balance that is done under this 505 like rule that talks about the

military judge making a determination that the accused received a

full and fair hearing. I can’t imagine any military judge believing

that an accused has had a full and fair hearing if all of the government’s evidence that was introduced was all classified and the accused was not able to see any of it.

The CHAIRMAN. Not the accused but his attorney?

Admiral MACDONALD. No. I think the accused, sir. I think that

is what Hamdan, Common Article 3, at least four Justices came

out and said that they would view—that they view that as a judicial guarantee and a fifth, Justice Kennedy, said he would view

with concern an attempt to exclude an accused from hearing the

evidence against him.

The CHAIRMAN. Okay. Okay. Fair enough. And incidentally on

that one point under the UCMJ is that the—isn’t that the—and we

have walked through this process several times about how classified evidence is used in trials with respect to our own uniform personnel. Is that the rule that is in place under the UCMJ? In other

words, if you are represented by Colonel Jones, who is a JAG officer, and you have maybe that same scenario where you don’t want
15

to disclose something or it is classified evidence, do we have the

rule that if that is the probative evidence in the case and the defendant is not personally allowed to cross-examine the agents or to

see the agent and see what he is saying, then the case is dropped?

Is that the rule under UCMJ?

Admiral MACDONALD. Yes, sir. There are a number of provisions

under 505—that is one remedy—is the government is put to the

task of making a decision if the judge has said look, the defense

needs to see this evidence, it is material to their defense of their

case, then the judge would make a ruling that would say government, it comes in in all of its classified form and then the government at that point would step back and say do we really want to

proceed forward. So the government would—could drop that particular specification under a charge. That would be a possible remedy.

The CHAIRMAN. Let me ask you one further question there. My

understanding is that in these ex parte or in camera proceedings

you have JAG officers who have necessary clearances to see the

classified evidence or a civilian officer who has the necessary clearances. If you are telling me that the defendant in all cases gets to

see it anyway, even if he has no clearance or the case is going to

be dropped if it is the only piece of evidence, why then is it necessary to give that type—to require that type of a clearance for his

attorney? You see what I am saying? If a corporal, general is going

to get to see the evidence and he doesn’t have the clearance, why

is it a requisite that Colonel Smith, who is his JAG officer, have

that clearance?

Admiral MACDONALD. But he is potentially—the defendant is potentially not going to see it. In that ex parte in camera proceeding

under 505, the military judge listens to the government counsel,

the government counsel produces the evidence. If it is classified

evidence, the government has to demonstrate that it remains classified and the government counsel then talks to the judge about

this is how I intend to use this. The judge in that case will look

at trial to prepare a redacted, unclassified version that could be

used and could be delivered to the defendant under 505.

The CHAIRMAN. Okay, fair enough. Thank you. And General,

well, let me first advise the committee. We have got the rule coming up on the livestock bill, and I understand it is just one vote.

So why don’t we go ahead and keep moving? We have got a lot of

work to do and we will go right on down the line here and let me

ask, one of my colleagues can whip over and get that vote. We will

keep moving here.

Dr. SNYDER. Mr. Chairman, I am sorry. I understand your wanting to keep it moving, but, I mean, those—I think most of us will

go vote and we are going to miss minutes of this discussion. Will

you at least give us five minutes?

The CHAIRMAN. Let us have a show of hands. How many folks

want to keep going? How many folks? Put your hand up. How

many folks would like to take a break and come back in 10 minutes

or so? Okay, we will take a break, and General Dunlap, we will

come back and we will resume with you.

On to the livestock vote.

Okay, folks, we will fire back up.
16

And, General Dunlap, you have—you have listened to the preceding comments and know the issue. What is your take here?

General DUNLAP. Thank you, Mr. Chairman. A couple points I

wanted to add to this conversation: one, this is a great demonstration of democracy in action that you have invited this kind of debate. I very much appreciate it. Thank you, sir.

Just the proposal by the Administration does require civilian

counsel to be eligible for security clearances. And when we talk

about the procedures for the admission of evidence, the 505 procedure under the military rules of evidence that we use at courtsmartial is a process by which the military judge examines the classified material, sees if it can be summarized, redacted in some way,

and the accused is not present during that process.

The issue that I think is—once you get, for example, a redacted

or summarized version of the testimony—and in the military commission process you don’t have the confrontation issues that you

would necessarily have in a court-martial because hearsay is generally allowed. What goes to the members, the finders of fact, must

be presented to the accused, in my judgment.

In other words, I don’t believe that we ought to have a trial

where, for example, the entire evidence is not presented, that is,

presented to the finders of fact the accuser never sees, so—but that

is distinct from the preliminary process where the classified is evaluated and an effort is made to summarize it or redact it in a way

so that sources or methods aren’t compromised, and that would be

facilitated under the commission process because of the liberal

rules on hearsay.

The CHAIRMAN. Yeah. It would seem to me the problem is going

to occur when it is cases of identifying people and allowing the accused to see who the agent is, for example, or the unidentified person who may be of great value to our—to our intelligence apparatus.

General DUNLAP. And—right, and a particular case, it may not

be necessary to have the accused see that person because it may

not be necessary for that person to be presented to the finders of

fact. In other words, you might have summarized testimony or

summarized redacted material down to an unclassified level.

The CHAIRMAN. But certainly you know that he is going to demand, especially if he knows that the failure to produce the identity and allow him to identify that person would result in a dismissal.

General DUNLAP. Well, even under the——

The CHAIRMAN. You understand that, General. There will be an

aggressive demand.

General DUNLAP. Absolutely, sir. We will see litigation on every

aspect of this no matter what kind of legislation we have. Under

the Military Rules of Evidence, we have what we call ‘‘pseudonym

testimony.’’ For example, individuals can testify under a different

name. The trier of fact will know that that person is testifying

under a different name, but that protects the individual, provides

another level of protection and the triers of fact are so instructed.

As I say, in the military commission process, there is an additional flexibility because of the relaxed rules with hearsay, but my

bottom line, my personal opinion, sir, is that we cannot have a
17

process whereby the finder of fact, not the judge, is deciding, but

the finder of fact gets evidence that the accused never sees and

never has the opportunity to defend against because——

The CHAIRMAN. Even though his lawyer sees it?

General DUNLAP. Even though his lawyer sees it.

The CHAIRMAN. Okay. Okay. Fair enough, General.

General Walker.

General WALKER. Sir, I concur with my colleagues that if we get

to a point where the sole evidence against an accused is classified,

he must be able to see that evidence; that is just essentially one

of those elements of a full and fair trial.

I am not aware of any situation in the world where there is a

system of jurisprudence that is recognized by civilized people where

an individual can be tried without—and convicted without seeing

the evidence against him. And I don’t think that the United States

needs to become the first in that scenario.

I think though, sir——

The CHAIRMAN. Well, what if the held-back evidence, though, is

not the testimony that he did such and such or that he said such

and such or he moved a bomb from a certain place to another place,

but simply the identity of the person who saw that even though his

lawyer with a security clearance gets to cross-examine that person

and sees the identity—in other words, he would get the evidence

surrounding the accusation, all of the peripheral facts would be

known to the person himself, to Khalid Sheikh Mohammed, for example, but the identity of the American agent, the person who conveys that, that would be known only by his defense counsel. You

see that as not acceptable? Because that is what we—we have got

to get down to tough cases here.

General WALKER. Yes, sir. The key is not whether his attorney

saw it. The key is whether the trier of fact saw that evidence.

The CHAIRMAN. No. Certainly the trier of fact sees it, but I am

talking about his team. If he doesn’t get to know the name of the

person who testified, who gave this evidence, but you get to know

the nature of the evidence, what it was—somebody saw him carry

the bomb, do some other thing—it is your position that even

though his attorney gets to cross-examine that person in camera

with this classification, unless he himself gets to know the identity

of the agent, then you can’t move forward if that is the sole evidence?

General WALKER. If that is the sole evidence, yes, sir.

The CHAIRMAN. Okay.

General WALKER. Because the key is the meaningful participation of the accused in his trial, not the participation of his attorney.

One additional point though, Mr. Chairman, is that in a couple

of discussions already, we have said if we arrive at that situation,

then prosecution must be dropped. In fact, I don’t think that is entirely accurate. The prosecution could, in fact, be deferred.

Most of the scenarios where we are discussing this classified information would come down to scenarios where the classification

deals with means, methods or sources. Often the passage of time

makes a difference in whether those remain classified; and particularly with the unlawful combatants that we are dealing with here,

deferral of prosecution is an option. It doesn’t necessarily mean
18

that if the government was unable to prosecute based on divulging

the classified information that the individual would walk free.

The CHAIRMAN. Okay. Very good, General. Thank you.

Colonel Reed.

Colonel REED. Sir, implicit in what General Walker just said is

the recognition that the unlawful combatants that we are currently

detaining are, in fact, enemy combatants against the United States

and are being detained based upon that. I think that is an important factor to recognize, that they are being detained, and those

being detained at Guantanamo are being detained because they are

combatants of the United States, being kept off the battlefield.

With respect to your question on the issue of classified information and with respect to the points that the panel members have

made so far and the question whether or not you could ever have

a situation where evidence is admitted against an accused where

the accused is not seeing that evidence, in fact, there are circumstances where that happens. There are currently circumstances

in the Uniform Code of Military Justice where, for example, an accused who has been arraigned voluntarily absents themselves from

the proceeding, or if they become disruptive, they can be pulled

from the courtroom and not have access to any of the evidence that

is being presented against them.

Now, that does not go directly—that is a voluntary act on their

part; it does not go directly to the issue that you have asked, but

it does present a point where there may be circumstances where

the accused is not going to be present when evidence is being offered to the trier of fact. So then you have to look at the current

circumstances we find ourselves in today with respect to the enemy

that we are fighting, how they operate, the need to protect the

methods and sources that General Walker talked about and determine, as you create a system that is fundamentally fair, whether

or not you can then limit their access to that classified information.

That is another one of those kinds of examples where an accused

may not be present when certain evidence is being offered.

The CHAIRMAN. Very good. Thank you, Colonel.

Mr. BRADBURY. Mr. Chairman, may I just add a couple more

cents?

The CHAIRMAN. Absolutely.

Mr. BRADBURY. Thank you.

I would implore Congress not to prejudge these issues through

black-and-white prohibitions in statute. I think it should be left up

to the military judges on a case-by-case basis to protect the fairness

of trials, and anything that we are talking about in this legislation

would be subject to a finding that the accused has received a full

and fair trial.

And many of the procedures we are proposing are very similar

to those in rule 505 of the Military Rules of Evidence that would

require the use of substitutes or summaries in lieu of classified evidence wherever possible, and the accused would always get to the

extent possible an unclassified summary of the evidence that was

presented.

But as Colonel Reed just said, the notion of presence at trial I

don’t think is—it is clearly not an absolute in international law. If,

for example, the safety of witnesses require it, the accused may be
19

excluded from the trial. And so the principle is not different from

the protection of witnesses versus the protection of sensitive

sources, methods and intelligence information in an ongoing conflict.

For example, in the Tadic prosecution before the International

Criminal Tribunal for the former Yugoslavia, the tribunal decided

that a witness—anonymous witness’ testimony could be taken. So

as long as it was facially credible, they allowed witnesses to testify

whose identities were concealed from the accused, and even from

the accused counsel, and whose voices were obscured and were

even screened off.

So that is a form of evidence being taken outside the presence

of the accused, and there the court, the tribunal, is the fact finder,

and it is also the court that made judgment that the testimony was

facially credible and the court knew the identity of the witnesses

involved, but the accused did not. And that was determined to be

consistent with international standards for a fair trial.

So principle—it is a different situation, but the principle is really

the same. You are protecting the safety of intelligence information

in the war versus protecting the safety of individual witnesses.

And then just the last thing I would say, Mr. Chairman, is the

idea that there be some blanket prohibition on the use of classified

evidence outside the presence of the accused if it is the sole evidence on the material fact. Again, I wouldn’t prejudge that, try to

do that by statute. I think the accused will always claim that every

fact is a material fact, and these arguments will be made, and as

I think General Dunlap said, they will be litigated. I think I would

leave it up to the military judges on a case-by-case basis to decide,

so that the fairness of the trial is preserved and that in particular

circumstances, particular evidence is appropriate and in others it

is not. And I would leave it to them and I wouldn’t try to prejudge

it.

Thank you.

The CHAIRMAN. Okay. Thank you, Mr. Bradbury.

The gentleman from Missouri, Mr. Skelton.

Mr. SKELTON. Mr. Bradbury, I am somewhat intrigued by your

comments to leave it to the judge and for us not to write basic rules

by which trials are to be conducted. I am an old country lawyer,

and we pretty much follow the statutes back in Missouri and I

think it would be a good idea for us on major things, major items,

to have a statute thereon.

Mr. Bradbury, let me ask you: Senator John McCain was quoted

in The New York Sun as saying, ‘‘I think it is important that we

stand by 200 years of legal precedence concerning classified information because the defendant should have a right to know what

evidence is being used.’’

Do you agree or disagree with Senator McCain?

Mr. BRADBURY. Well, I think the——

Mr. SKELTON. No. Just agree. Do you agree or disagree? We will

get along much quicker.

Mr. BRADBURY. I stand by the proposal in the Administration’s

legislation which would allow for the possibility——

Mr. SKELTON. You disagree with that statement?

Mr. BRADBURY. If the statement means——
20

Mr. SKELTON. I will read it again. Do you want me to read it

again?

‘‘I think it is important that we stand by 200 years of legal precedence concerning classified information because the defendant

should have a right to know what evidence is being used.’’

Do you agree or disagree?

Mr. BRADBURY. If the—I am sorry, Congressman. If that statement means that there would never be a circumstance where classified evidence could be used at trial and not—and the classified

evidence not made available to the accused, I would disagree. But

I would point out that we would provide summaries of the evidence

that is unclassified to the accused; and then in that sense, the accused would have an understanding of the evidence that is being

used against him, but would not see the classified aspects of the

evidence. His attorney would.

So his attorney would have a full opportunity to see it, to make

an argument based on it. So consistent with the full and fair trial,

up to the military judge; and I don’t think that is inconsistent with

traditional or, as I say, with international standards.

Mr. SKELTON. Do you agree or disagree with Senator Lindsey

Graham quoted from The New York Times, ‘‘I do not believe it is

necessary to have trials where the accused cannot see the evidence

against them’’?

Mr. BRADBURY. In these limited circumstances, we do think it is

necessary to have this tool available for these prosecutions.

Mr. SKELTON. You are disagreeing with that statement?

Mr. BRADBURY. Again, if that statement means there would

never be such circumstances——

Mr. SKELTON. It means what the English language says. Do you

agree or disagree with it? This isn’t—this isn’t——

Mr. BRADBURY. I disagree that we should close the door to this

possibility. This is going to be an important aspect of our ability

to prosecute in certain of these important cases, not all; and not—

and we are not talking about a common part of it. We are talking

about in extraordinary circumstances.

We have to leave that door open, and I would just implore the

Congress not to close that door, and if that statement means the

door should be closed to the use of that kind of evidence, then I

think that is unacceptable.

The President has said, yes, as it was suggested, we could wait

until the end of the conflict to prosecute or we could drop the prosecutions. I think from the President’s perspective, both of those options at this point are unacceptable.

Mr. SKELTON. Under your proposal, who would be the persons

covered by your language in this bill?

Mr. BRADBURY. The persons who would be subject to the military

commission trial would be unlawful enemy combatants. There is a

definition in the bill that would include those who fight on behalf

of terrorist organizations like al Qaeda, and it would be limited to

unlawful enemy combatants who commit violations of the law of

war. So it would not apply to prisoners of war (POWs) or protected

persons under the Geneva Conventions, and the legislation would

expressly stipulate that those protected persons would be tried
21

even for their war crimes by courts-martial or other tribunals and

not by these military commissions.

Mr. SKELTON. How about those that violate human rights?

Mr. BRADBURY. Well, some of the war crimes are also crimes

against humanity, but what we are talking about here is enemy

combatants who have been engaged in supporting hostilities

against the United States. So fundamentally we are talking about

war crimes and enemy combatants. This is a law of war paradigm.

Mr. SKELTON. May I ask you what I posed in my opening statement? I know you have been working on this for quite some time,

but we just received this yesterday. Would you explain to the committee why we didn’t have it at least several days before?

Mr. BRADBURY. Well, I can certainly say we have worked very

hard, as I believe you know, Congressman, for two months on this

project, coming off the court’s decision, and much of that work involved consultations with the armed services and military lawyers

and the Department of Defense; and much, much work was done,

many changes were made in the legislation as it evolved.

I think a lot of improvements were made. I think these gentlemen and their staffs provided terrific input that improved the bill

significantly. And in addition to that process, there was extensive

consultation with various Members of Congress and their staffs.

I walked through proposals, draft language with members and

with staff and took suggestions, and the product continued to

evolve right up until days before we submitted it. So I think we

have benefited from that continued work.

Mr. SKELTON. Did you contact any person on our side of the aisle

regarding this?

Mr. BRADBURY. There were consultations, yes.

Mr. SKELTON. Now, you did not put this within the structure of

the Uniform Code of Military Justice; is that correct?

Mr. BRADBURY. It actually is modeled closely on——

Mr. SKELTON. No, no, no, no. I am not talking about modeled. I

am talking about within the structure of the Uniform Code of Military Justice.

Mr. BRADBURY. We adopted the structure of the Uniform Code of

Military Justice for this Code of Military Commissions. So it does

reflect almost the entire structure of the Uniform Code of Military

Justice for courts-martial with certain key differences, as we have

pointed out. But it would be—you are right, Congressman, it would

be a separate code and a separate procedure, because the President

feels very strongly that these proceedings and these trials for

enemy combatants, for unlawful enemy combatants should be kept

separate from the court-martial proceedings that we use for our

own troops.

Mr. SKELTON. I won’t be short, but let me ask you just a couple

more questions.

The former detainees that have just been turned over to the Department of Defense, what is that—15; what is the number?

Mr. BRADBURY. Fourteen.

Mr. SKELTON. Fourteen. The intention is that they be tried under

whatever law Congress passes; is that correct?

Mr. BRADBURY. I think the intention is that all of their cases will

be reviewed for trial—for possible prosecution under the military
22

commission procedures that come out of this process. So we will

seek to prosecute them. There is no guarantee that prosecutions

will move forward.

They remain enemy combatants, and we will hold them either

way, but the hope and the intent is that as quickly as possible after

legislation is in place, we will review their cases and move them

forward for possible prosecution.

Mr. SKELTON. Does your proposal include the protections under

the Geneva Common Article 3?

Mr. BRADBURY. Yes, it does, Congressman. We think the procedures for these military commissions would fully satisfy the requirements for the Common Article 3.

Mr. SKELTON. Does it state that?

Mr. BRADBURY. Yes.

Mr. SKELTON. Thank you.

The CHAIRMAN. Thank the gentleman.

The gentleman from New Jersey, Mr. Saxton.

Mr. SAXTON. Thank you, Mr. Chairman.

Mr. Bradbury, as I read the Administration proposal, it seems

fairly clear that the proposal would target not only members of the

organization that we call al Qaeda, but it would target other individuals from organizations who are in the business of carrying out

asymmetrical warfare that we generally refer to as terrorism.

Let me ask you a hypothetical question.

In the case of Hezbollah, which is clearly a state-sponsored organization and an organization that clearly targets civilians, in the

event that the U.S. captures a member of Hezbollah—incidentally,

an organization that has killed more Americans than any organization other than al Qaeda—under what circumstances, I guess is the

question, could that member of Hezbollah be tried under the military commission that you have proposed?

Mr. BRADBURY. Congressman, I believe it would only be if it were

determined that Hezbollah is engaged in hostilities against the

United States. Again, this is an armed conflict law, war paradigm,

and it is clear that we are at war with al Qaeda and its affiliates.

So that would be—that is a prerequisite here, that you are in a—

essentially, a state of armed conflict; hostilities are going on, or

have gone on, and the organization in question is engaged in or

supporting those hostilities against the United States.

Mr. SAXTON. I would suspect that if a member of Hezbollah were

to kill a United States citizen, that would constitute a reason that

the tribunal could be used to prosecute that person?

Mr. BRADBURY. Well, I am going to hesitate to give a blanket answer on that. I think that, again, there would need to be a state

of hostilities or have been a state of hostilities between the organization and the United States, and the act of one person does not

make a state of hostilities.

Mr. SAXTON. Thank you, Mr. Chairman.

The CHAIRMAN. Thank the gentleman.

The gentleman from South Carolina, Mr. Spratt.

Mr. SPRATT. Mr. Bradbury, from your testimony, I gather that

you don’t believe that the detainees currently held can be adequately tried under existing law, including the Uniform Code of

Military Justice.
23

Mr. BRADBURY. Well, Congressman, that actually is not a judgment for me to make. But I have talked to some prosecutors who

would likely be involved, and I think the strong view is that we

need flexible procedures, we need the type of procedures that are

reflected in this proposed legislation for military commissions, and

that some of the limitations under the Uniform Code of Military

Justice for courts-martial are incompatible with that.

For example, speedy trial rights—some of these people have been

held for a long time already. For example, Miranda warnings that

would give the accused a right to counsel from the moment he is

suspected of having committed a crime, would be incompatible.

Mr. SPRATT. Case law rather than statutory law, isn’t it?

Mr. BRADBURY. It is reflected in—it flows from article 1 of the

UCMJ, and it is reflected in the manual for courts-martial.

Mr. SPRATT. Let me ask you this. The Justice Department issued

a statement of facts on June 23, I believe, 2006, stating that it had

prosecuted—brought to justice 261 terrorists or defendants engaged

in terrorist-related activity. Are you familiar with that fact sheet?

Mr. BRADBURY. Not very familiar with it, but I am generally familiar with the issue.

Of course, the Department has a Counterterrorism Section in its

Criminal Division, and other sections of the Criminal Division that

are very, very focused on——

Mr. SPRATT. My point is that these 261 were apparently tried or

the cases were processed under the existing rules of evidence and

criminal procedure, applicable in the U.S. district courts; and by

the same token under the UCMJ, we have cases pending now, battlefield cases where witnesses and evidence will have to be taken

from the exigencies of the battlefield and brought back to some

court.

We have got these cases being tried now—have been tried in the

past successfully; 261 were prosecuted. How did you do it with respect to these defendants?

Mr. BRADBURY. Well, Congressman, obviously we will use every

tool at our disposal to fight this war, and sometimes that means

criminal prosecutions, many of those prosecutions are for—they are

not for law-war violations, but for traditional crimes. Some of them

are crimes like immigration violations, fraud, other things short of

terrorism, because we will use every tool we can to bring the terrorists off the streets and if we can prosecute them for crimes, we

will.

Mr. SPRATT. Has the Justice Department overstated the character of these particular defendants? Have you called people ‘‘terrorists’’ who really were——

Mr. BRADBURY. No, I don’t think so.

I think that there are a lot of people who, we have reason to

know, are involved in plotting terrorist activity. What you want to

do is not wait until the terrorist act is complete necessarily in

every case and prosecute them for a complete terrorism crime; but

rather, get them, prosecute them, put them in prison for any crime

that you can prosecute them for if that means you are actually preventing a terrorist action from ultimately occurring.

Mr. SPRATT. Let me ask you a bit different question because my

time is limited.
24

If you had this additional chapter to the UCMJ, and dealing with

and substantiating military commissions, I suppose you will have

to create the procedural rules that accompanied this tribunal, in

addition, will you restate substantive law? And if you do restate,

reformulate, substantive law, is that an ex post facto problem here?

Mr. BRADBURY. Well, in the proposal that the President sent up,

all of the substantive offenses that would be triable by military

commission would be specified by Congress in the legislation, and

the Secretary of Defense would not have discretion to define new

substantive offenses.

All of these offenses, we think, are offenses that have preexisted

under international law, laws and customs of war, and the evolving

notion of what is a war crime or properly triable by military commission. We don’t think there would be an ex post facto issue with

any of them, and that is including a crime of conspiracy, which we

would specify to clarify that that is a preexisting offense under the

laws of war.

But to the first part of your question, absolutely, we would anticipate; and it would specify in the legislation that the Department

of Defense would have to promulgate rules, including rules of evidence and other rules of procedure, for these trials and would have

to submit those to this committee and the Senate Armed Services

Committee. Within a certain number of days after the legislation

is passed, you would have an opportunity to review those.

We would anticipate that these rules would be, in effect, a manual of military commissions, much as was described and just as exists for court-martial proceedings. There is a manual of courts-martial, and in fact in a lot of respects it will look quite similar, I

think, with certain key differences in some of these areas that we

have talked about today.

The CHAIRMAN. Thank the gentleman.

The gentleman from Texas, Mr. Conaway.

Mr. CONAWAY. Thank you, Mr. Chairman. I appreciate your holding this hearing today.

A quick look at the bill that is in front of us, section or subchapter 6 talks about post-trial procedures. Can you explain to us

the difference between the appellate procedures that you contemplate under this bill versus the UCMJ; and also talk to us—it

makes reference to a court of military commission review, and also

the court of appeals here in the District of Columbia. Can you form

all that in to how it is going to work once it is in place?

Mr. BRADBURY. Yes. What is envisioned in this legislation is an

appellate process that in some respects is quite similar to that for

courts-martial and but in other respects is different. It would create a court of military commission review, which would be parallel

to a court of criminal appeals that hears appeals from courts-martial.

One key difference is, the court of military commission review

would only hear and decide issues of law on appeal, just like a traditional appellate court that we are all used to in the article 3 context, whereas for courts-martial of our own troops, the court of

criminal appeals in the court-martial process can review questions

of fact as well as law, can essentially interpose a different view on

questions of fact.
25

We don’t think that is—that is not necessary, that—that is a procedural protection for our own troops that actually goes beyond

what is provided in article 3 courts for regular criminal defendants.

We don’t think it is appropriate to provide that level and not necessary to provide that level of review and procedural protection

here, but there would be a court of military commission review that

could decide issues of law and overturn decisions of the military

commission trial on questions of law.

In addition, because the government would not have a right to

appeal a judgment of acquittal from the military commissions, the

government, just as in traditional criminal prosecutions in article

3 courts, has to have a right of interlocutory appeal to this court

of military commission review where, for example, the military

judge has made a decision to exclude key evidence of the government or has decided a dispositive issue against the government. At

that point, the government needs to have an interlocutory appeal

up to this court of military commission review.

Then, from the court of military commission review, which is in

the Department of Defense, we would provide an appeal as a right

in all cases, from all convictions for the accused, to the U.S. Court

of Appeals for the District of Columbia Circuit—the D.C. Circuit,

pursuant to the scope or the standards of review that are in the

Detainee Treatment Act that Congress already decided on and debated back in December; and that is, the court of appeals can review whether the military commission applied the correct standards and procedures and whether the trial proceeding and the conviction were consistent with the laws and Constitution of the

United States.

And the Detainee Treatment Act (DTA) currently limits the appeal as a right to sentences that are longer than 10 years, or sentences of death; and if it is a sentence shorter than 10 years, it is

a discretionary petition for review under the DTA. We would

change that in this legislation and make it an appeal as a right

from all convictions to the D.C. Circuit; and then, finally, of course,

the accused could petition the Supreme Court for certiorari review

from that.

So it is similar in some respects to the military commission review process, but differs because of the Detainee Treatment Act.

We think it is appropriate not to reopen that debate, but to leave

that review and those standards as set in the DTA.

Mr. CONAWAY. Thank the gentleman.

Mr. Chairman, thank you for the——

The CHAIRMAN. I thank the gentleman. The gentleman from

Texas, Mr. Ortiz.

Mr. ORTIZ. Thank you, Mr. Chairman.

You know, we are going through very serious times, critical

times; and we see where some of the Coalition members have either withdrawn, quit in Afghanistan, in Iraq. Have we consulted

with our allies, those that have signed up in an agreement to what

the Geneva Conventions do? And is this the right time to be doing

this when we are in the middle of two wars?

Any of you that would like to answer that question.

Mr. BRADBURY. Well, I will jump in first.
26

There has been extensive consultation with our allies and the Coalition members by the Department of State, the Secretary of

State, the President about all aspects of the joint effort in this war

on terror. I actually think that the State Department would probably tell you that our allies, by and large, will welcome a move toward military commission prosecutions for these enemy combatants.

I think it is probably fair to say that our allies have favored that

kind of treatment of enemy combatants rather than a situation

where there is less definition and certainty about what is going to

happen down the road. I think they will also favor generally the

idea of a more elaborate and congressionally determined set of

rules for the military commission process.

So I think there has been a lot of consultation on this, and I

think this will be whatever Congress decides to do here; and once

we get this process up and running, will probably be viewed as a

significant move forward by the international community, I think.

Mr. ORTIZ. Would anybody else like to respond?

Admiral MACDONALD. Congressman I would just say that you

asked the question about, is this the right thing to do, considering

we have—we are currently engaged in a war in Afghanistan and

Iraq.

I think I would agree with the President’s comment yesterday:

It is imperative that we move forward on military commissions.

This is going to be a long war against terrorism, and we need—we

need a set of procedures and rules to handle the unlawful enemy

combatants that we are taking off the battlefield.

Colonel REED. Congressman, I would also add that this has been

shared and discussed with the combatant commanders, specifically

the geographic combatant commanders; and I cannot speak to the

discussions that they may have with the various representative

countries within the AOR, but generally speaking, the combatant

commanders uniformly follow on the line that Admiral MacDonald

just articulated.

Mr. ORTIZ. One of the reasons that I ask is because the Geneva

Convention has been there for many, many years; and all of a sudden, you know, we have to do something like this. Maybe it is needed.

What a lot of people don’t understand is the perception out there,

and I just want to be sure that what we do is the right thing to

protect our soldiers as well.

Admiral MACDONALD. Congressman, I think it is the right thing

to do. I think one of the things that nobody anticipated was the

Hamdan court’s declaration that Common Article 3 applies in this

conflict. I think nobody believed that these types of detainees, unlawful enemy combatants, would be afforded Common Article 3

rights.

We now have the Hamdan decision, the Supreme Court has spoken, and we need—we need to take action now to comply with the

Supreme Court’s decision; and passing legislation on military commissions will help us do that.

General DUNLAP. I agree with that, sir. We need to go forward

with the commission process. We need to do it right and we need

to have the right processes. But I do believe that it will facilitate
27

waging the Global War on Terror to be able to deal with the detainees that we have through the military commission process.

Mr. ORTIZ. Thank you. I don’t have any further questions.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank the gentleman. The gentleman from Minnesota, Mr. Kline.

Mr. KLINE. Thank you, Mr. Chairman. Thank you, gentlemen, for

being here. Fairly confusing for those of us who aren’t lawyers,

don’t watch enough TV to even pretend that we are.

But let me just—I will go to you, Mr. Bradbury, first, just very

quickly, make sure that I understand. If this language were to pass

exactly as it is, the government could choose when and if to bring

somebody before a commission; is that correct?

Mr. BRADBURY. Yes.

Mr. KLINE. So, in theory, someone could not be brought before a

commission for years——

Mr. BRADBURY. Correct.

Mr. KLINE [continuing]. If the government chose?

Okay. Fine. If someone is brought before the commission and is

found guilty, we have this appeals process that you just explained

to Mr. Conaway. If they are found not guilty, they are immediately

released; is that correct?

Mr. BRADBURY. Not necessarily. They remain enemy combatants,

and under the laws of war, we can hold them while the hostilities

are going on.

Now, that is not for punishment purposes. So there is a very big

difference, I think, certainly morally and in the sight of the victims

of their war crimes between simply holding them as combatants

under laws of war and punishing them.

Punishment, of course, can include up to and including the penalty of death for depending on the seriousness of their crimes. We

are not in a position today to punish them for what they have done.

We are simply holding them to protect the country, but we have

a right to continue to do that.

Mr. KLINE. Even after they are found not guilty.

That sort of brings me to the point that the other gentlemen

were talking about earlier. If you bring them before a commission,

and in the process you determine, the government determines that

there is some evidence that they cannot use, they can stop the

process; is that correct?

Mr. BRADBURY. Well, that—that certainly—if that is the case, if

there is evidence that is foreclosed from the government’s case that

is critical or essential to the government’s prosecution, the government would be forced to drop the prosecution as an alternative or

await the end of hostilities, whenever that might be.

Mr. KLINE. So the unlawful combatant would just continue to be

detained and the trial process would stop, at least for that time

under those circumstances?

Mr. BRADBURY. Yes. But the victim’s interest in seeing retribution done and justice done would be thwarted.

Mr. KLINE. Exactly.

The CHAIRMAN. Would the gentleman yield on that?

Mr. KLINE. I would be happy to yield.
28

The CHAIRMAN. I thank the gentleman, because I think in his

own talented way, he has gotten to—talked, reflected back on this

problem that we talked about earlier, this challenge.

What you are saying, Mr. Bradbury, is that if the government

has—if its major piece of evidence that would be necessary for a

conviction would require the disclosure of an agent whom we can’t

afford to disclose, at that point the government would have a

choice. The choice would be to try to proceed without the evidence.

But if it is apparent that it is not going to work, that that is a

central piece, they would—rather than disclose the agent, they

could simply continue to keep the person as a combatant, and the

agent’s testimony that, in fact, he saw the alleged terrorist undertaking actions which were indicative of his combatant status, that

certainly could be considered in terms of simply holding him.

Now there is obviously going to be—at that point you are going

to have habeas filings, you are going to have all kinds of attempts

by the defense counsel to—I would think, at that point, to effect a

release.

But if your answer to Mr. Kline’s statement is, as I heard it, you

could simply keep them warehoused, where they can’t go back to

the battlefield even though you can’t proceed with the prosecution,

is that accurate?

Mr. BRADBURY. That is true, but we would—we would ask that

Congress keep the door open for the possibility that that prosecution could move forward under strict limitations and in order to

guarantee fairness, because, I think, as the President said yesterday, he views it as unacceptable that we would simply have to

warehouse them and hold them when we want to prosecute them.

And in those cases where they have committed serious war crimes

and we want to prosecute them, he thinks it is time to move forward, and then we have procedures that would enable us to do

that.

Mr. KLINE. Thank you.

I was going to reclaim my time, but I see it just went away. I

had some trial language.

The CHAIRMAN. You go right ahead.

Mr. KLINE. Let me just run this sort of trial language that we

have been looking at here—I have been looking at for the last several minutes.

Going back to the issue of classified—we are really talking about

classified material here. If you put language in that said, quote,

‘‘The admission of evidence that has not been provided to the accused that constitutes the sole evidence of a material fact in issue

does not by itself deprive the accused of a full and fair trial.’’

That is—you know, that is why I am not a lawyer. I have to read

this. But could I just whip down the line and get your comments,

whether that language would be acceptable or not acceptable?

Mr. BRADBURY. Well, I am sorry, Congressman. Would that be a

statement in the legislation from Congress to that effect?

Mr. KLINE. Yes. Insert it in the legislation.

Mr. BRADBURY. Or would that be a finding that the military

judge——

Mr. KLINE. Insert in the legislation.
29

Mr. BRADBURY. Well, again, I guess I would say that I would discourage black-and-white rules being put in by a statute as to admissibility questions or questions like that. I would think that the

military judge, under the circumstances in a particular case with

a particular piece of evidence, may conclude that it is consistent

with a full and fair trial for that to be the sole evidence of a particular fact.

Now, the accused is always going to claim that every fact is material fact when it comes to that. At the same time, in a given case,

the military judge may determine that it is not consistent with a

full and fair trial under all the circumstances here for that to be

the sole evidence of that particular fact. And that should be the

military judge’s judgment, based on the circumstances, based on

the evidence, based on everything available to him; and it shouldn’t

be prejudged by Congress in statute. That is basically the message

that I am suggesting.

Mr. KLINE. Okay. Thank you.

I see that the light is now bright red, so Mr. Chairman, thank

you. I yield back.

The CHAIRMAN. Thank the gentleman.

The gentleman from Mississippi, Mr. Taylor.

Mr. TAYLOR. Thank you, Mr. Chairman. I am going to yield to

the gentleman from Tennessee, Mr. Cooper.

Mr. COOPER. Mr. Bradbury, the last time you testified before this

committee, I asked you about your quote that the President is always correct. And then you testified to this committee that you had

been joking when you said that. I trust you are not joking today.

Mr. BRADBURY. I am not trying to be humorous. I think I learned

my lesson that last time.

Mr. COOPER. What we and the American people are seeing today

is one civilian Justice Department official, four JAG generals and

a JAG colonel, and my constituents back home are more likely to

believe the four JAG generals and the JAG colonel. In fact, trust

in our uniform military is something that I think we have not seen

enough of from this Administration, and all of the witnesses wearing a uniform have expressed misgivings, concerns about the legislation. I wish you had consulted them more in drafting this.

Today, in The Wall Street Journal, one of your predecessors at

the Justice Department, John Yoo, is quoted as saying that basically the bill you are offering Congress today is no different from

what you have been doing before. And how are the Supreme Court

justices going to react to that, having overturned your procedures

for the last 4 or 5 years, and here is the man who wrote those procedures saying, hey, what you are offering us is more of the same?

Mr. BRADBURY. I haven’t seen that quote, but I find that an extraordinary statement, really, because this 85-page——

Mr. COOPER. Let me read it to you. If you haven’t seen the quote,

let me read it to you.

‘‘it does not look like the procedures for these commissions differ

in any significant way from the rules already in place before. The

only difference is that the President is seeking Congress’ explicit

support.’’ so in terms of the substantive law, Mr. Yoo is saying, no

change. But let me get to some particular points here.
30

As our chairman began this hearing, our foremost goal should be

to protect America and to protect the American people. I would like

to ask you, what, if anything, in this legislation protects an American citizen who is accused of one of these crimes? Because the way

I read the law, it is all about alien enemy combatants.

We have had American citizens detained for a period of over

three years without charges. So I would like to ask you, what is

the legal limit for holding an American citizen without charges? Is

it one year? Is it two years? Is it three years?

Mr. BRADBURY. Well, two things. Number one, no American citizen would be subject to these procedures. None of these military

commission procedures could be used with an American citizen,

and that is clearly provided for in the law.

Mr. COOPER. So this law is doing nothing to protect the rights

of an American who is being held without charges for a period of

several years, as has been done by this government?

Mr. BRADBURY. Any American—consistent with this statute, any

American citizen who is tried for war crimes or any other crimes

would get the full protections of the Article 3 court in traditional

criminal proceedings.

An American citizen or an alien, it doesn’t matter who, engaged

in armed conflict against the United States and is properly classified as an enemy combatant, may be held under the laws of war

as an enemy combatant. That is not to punish that person, that is

not for crimes committed; that is because of their involvement in

hostilities against the United States. And the Supreme Court in

the Hamdan case affirmed that general right of the government to

hold enemy combatants, even including U.S. citizens.

But as you say, very, very few cases such as that.

Mr. COOPER. How long should an American citizen be held without charges?

Mr. BRADBURY. Well, any enemy combatant under the laws of

war can be held during the pendency of hostilities.

As you have seen recently——

Mr. COOPER. Without charges, even if they are American citizens?

Mr. BRADBURY. As you have seen recently with the case of Mr.

Padilla, he was being held as an enemy combatant and—had been

designated as an enemy combatant by the President and was held,

and then was transferred over to the custody of the Department of

Justice and charges were brought. And he is down in Florida.

Mr. COOPER. So three years is okay, being held without charges?

Mr. BRADBURY. There isn’t a hard and fast rule under laws of

war. As you know, we have held some enemy combatants at Guantanamo Bay.

Mr. COOPER. I am talking about American citizens. So three

years is okay?

Mr. BRADBURY. It depends on the circumstances and we are talking about——

Mr. COOPER. That is what the government has done.

Mr. BRADBURY. What the government has done——

Mr. COOPER. Three years is okay?

Mr. BRADBURY. The law of war says you can hold an enemy combatant for the duration of the hostilities. That is a right that every
31

country has, and the Supreme Court affirmed the ability of the

United States to do that.

Again, there have been extremely few cases such as you described.

Mr. COOPER. Let me ask about the disclosure by the President

of the extraordinary rendition program. If any other government official had done that, that would have been a security breach, right,

without his permission?

Mr. BRADBURY. Well, of course the President has the authority

under the Constitution to protect classified sources and methods

and to make decisions about what should be classified and what

shouldn’t. And also the Director of National Intelligence can declassify information.

So the President has the ability to make decisions about disclosures of information when it is in the national interest of the

United States that others who are not classifying authorities may

not have.

Mr. COOPER. And his decision had nothing to do with the proximity of the upcoming election?

Mr. BRADBURY. I think he explained the timing of his decision in

his remarks yesterday.

Mr. COOPER. Let me ask you about the President’s signing a

statement. When he signed the McCain anti-torture language into

law, didn’t the President reserve to himself the authority to interpret that language as he alone saw fit under his powers as commander in chief and as a unitary executive?

Mr. BRADBURY. Well, it is—one of the things I do is provide legal

advice to the executive branch, and it is inherent in executive authority if you are going to carry out a law and execute a law, you

will have to interpret what it means.

Mr. COOPER. If it is inherent, why did he have to state it?

Mr. BRADBURY. He didn’t really have to state it.

Mr. COOPER. So it was unnecessary verbiage?

Mr. BRADBURY. I think that I am not going to say it is unnecessary, but it is not necessary for the President to provide a signing

statement to legislation. We actually think it is helpful to Congress. It is part of the dynamic of a dialogue between the branches.

It is also helpful to—in many cases, to the executive branch

when the President specifies how a particular piece of legislation

is going to be interpreted or whether it raises certain issues that

the executive branch needs to know about when it is carrying out

the law.

Mr. COOPER. Final question with the indulgence of the chair. The

term co-belligerent in your legislation, I haven’t seen before. It

doesn’t seem like a very flattering term for our allies or our Coalition partners.

Why did you use a term like that, because normally the term belligerent is not a compliment.

Mr. BRADBURY. Well, it is actually a term of art that the gentleman to my left can probably explain better than I, but it is a

term of art in the law of war and it really means another nation

that is fighting in that war on your side. And, you know, we may

have allies; they may not in all cases and with respect to a particular conflict be engaged in the conflict on our side, but may still be
32

our allies. They are not technically co-belligerent, so we wanted to

use that——

Mr. COOPER. How about ‘‘Coalition partner,’’ something friendlier

sounding like that? You couldn’t say that?

Mr. BRADBURY. Well, we just used a term that is consistent with

the law of war, and it would be recognizable in that sense.

Mr. COOPER. I thank the chair for his indulgence.

The CHAIRMAN. Mr. Simmons.

Mr. SIMMONS. I thank you, Mr. Chairman.

And thank you, gentlemen, for your testimony. I had the opportunity a year or so ago to go down to Guantanamo Bay and be

briefed on the methods and procedures and processes for holding

detainees and for conducting questioning or interrogation. And

what I was told at the time was that—and I should say by way of

background, I have had some experience during my service in Vietnam with military methods of detention and questioning, as well

as those of the Central Intelligence Agency, but what I was told at

the time was, we are confronted with a new kind of war, with a

new kind of rules or a lack of rules, new types of combatants that

don’t wear uniforms, they don’t play by the rules. They—in fact,

they flout the rules.

And so the detention and treatment of these folks does not fall

primarily within what we might call the civil court system nor does

it fall within the military system, and what we really need is a new

kind of law for a new kind of war. It seems to me that what we

are confronted with here today is just that, a new kind of law for

a new kind of war.

Now, some years ago when I served as a staff director of the Senate Intelligence Committee, we oversaw the application of the Foreign Intelligence Surveillance Court under the Foreign Intelligence

Surveillance Act, which was, in fact, a new kind of court for the

situation that we faced back in that Cold War environment.

A colleague of mine, a Coast Guard attorney has written extensively on this subject, Commander Glen Sulmasy and has called for

a new kind of court, for a new kind of judgment, namely a national

security court, a hybrid between what we have had in the past.

Are any of you familiar with this proposal? Would any of you

have any comments on it, or do any of you feel what is being proposed today does reflect that hybrid that reflects this new kind of

war, that requires a new kind of law to apply justice? And I would

open it to any of the members.

General BLACK. Sir, I am not familiar with the proposal that you

have offered up, but I would suggest that your comments about the

proposed legislation being—kind of fitting into that hybrid mode

are very accurate. I think it does indeed do that. And I share or

concur generally in the way ahead with respect to this legislative

package.

Mr. SIMMONS. And have any of you had the opportunity to discuss this hybrid, or this new approach, with civilian attorneys,

prosecutors, defense attorneys, civil and criminal lawyers, trial attorneys and others? And if so, what kind of feedback are we getting? Or is this really the first shot out of the box for this issue?

Admiral MACDONALD. Sir, this is really the first shot out of the

box. The proposal is pretty new, and it has gone through a number
33

of iterations as we have worked with Justice, Department since

probably the latter part of July, working on this proposal pretty

closely with Justice Department on these rules. So I think it was

premature to have discussed that with any of our civilian counterparts.

It would be interesting, I think, now that this is out and public

to have that dialogue.

Mr. SIMMONS. And what would you consider to be the appropriate time frame?

Again, we have been in this situation, in this business, for a period now of several years, 9/11 will have its fifth anniversary next

week. So it has been about five years.

I think that there is a sense on both sides of the aisle that we

need to move forward expeditiously with this, that the current situation requires it, that this so-called ‘‘war on terror’’—I would call

it a war where terror is being used—is not going to end tomorrow

or the next day. We are going to be with this problem for a long

time.

How long do you anticipate it should take before we can put together a system of tribunals, commissions or national security

courts that address this problem?

General DUNLAP. Sir, I would say that I do think it is imperative

to move forward with a process to establish military commissions,

and I agree while there is much new, it does build on the UCMJ.

It builds on the manual for courts-martial, it builds on the history

for military commissions.

That said, it is imperative, as well, that we do it the right way,

and that is why, with the lead of this committee, I did express

some very serious concerns about the proposal, even though I agree

with the vast majority of it. But I do think that the sooner we can

get legislation, the sooner we can move forward with the commission trials, and that will facilitate our relations with our Coalition

partners, with the international community and moving forward

with the Global War on Terror.

Admiral MACDONALD. Sir, I would add one point to that.

We currently have the process in place. We have the military

prosecutors, the defense counsel in place. The overarching structure is there and waiting for a commissions package to be approved. So I think once legislation is passed, it will be—we can

generate commissions trials pretty quickly, based on having those

structures in place under the old commissions package.

General DUNLAP. If I could just add one point, it is very important, as one of my fellow panelists said, that the part of the Detainee Treatment Act on habeas be clarified, because obviously the

Supreme Court had difficulty or had concerns about the application

of that.

If we get bogged down with habeas petitions before we can get

a commission case tried, then that could delay the actual trials of

military commissions, in my judgment. That is my personal opinion, sir.

Mr. SIMMONS. Mr. Chairman, let me just conclude by saying that

I read recently a new book that is out on the arrest and the prosecution of eight German saboteurs who landed in this country, on

the East Coast of this country by submarine. Six of the eight were
34

electrocuted here in Washington, D.C., after the tribunal; none of

them had carried out any aspect of their mission whatsoever.

But I would say that the so-called Administration of justice in

that particular case was not a high point of the Roosevelt Administration even though we were at war and that, from my perspective,

it is important that we come up with these new tribunals expeditiously.

Again, nobody has been treated as those eight were treated so

many years ago. But Americans do have a basic sense of fairness

even in these difficult times, and I would encourage that we move

forward on this as quickly as possible.

Mr. WILSON [presiding]. The gentleman from Massachusetts, Mr.

Meehan.

Mr. MEEHAN. Thank you.

Mr. Bradbury, so how many military commission convictions

have we had?

Mr. BRADBURY. None, sir.

Mr. MEEHAN. And we have had 261 convictions through the Justice Department for our own criminal system; isn’t that right?

Mr. BRADBURY. I don’t know the exact number, but I know it is

around there.

Mr. MEEHAN. Two hundred sixty-one related to terrorism. It just

seems to me after 5 years since 9/11 that we would have been in

a better position, stronger position. Particularly in view of who the

President announced yesterday that we have in detention, that we

would have anticipated how the Supreme Court might rule and

that we should have been, in Congress, a lot earlier than this. I

don’t understand why the Administration didn’t come to Congress

to set up a military commission to deal with this earlier. I think

it is unacceptable that 5 years from the anniversary of 9/11 and we

haven’t had a single military commission conviction when our own

Justice Department has 261 terrorism convictions.

Mr. BRADBURY. Well, I think the President also views it as unacceptable in the sense that it is past time to move forward with

these prosecutions. I think that what I have tried to communicate—last time I was here back in July following the Hamdan decision, this is quite extraordinary in the history of armed conflict

for the executive branch to come to Congress to get legislation for

military commissions for the trial of enemy combatants. This is an

unprecedented——

Mr. MEEHAN. But we have had five years. You agree. And I agree

with what General Dunlap says. We have to go through a process

here. There are less than 20 days left before this Congress is scheduled to adjourn.

The President, as you say, he has a right to decide what is classified and what isn’t.

And he unilaterally decided he will present all of this information with less than 20 days left on the calendar. Now we are asked

to come up with something, frankly, we should have had a long

time ago, and the proposal that I have seen essentially is a validation of what the Administration has been doing all along. It has

been rejected by the Supreme Court. This policy is, seems to me,

is not helping make America more secure. The fact there are so

many JAGs here today that can point to serious flaws in the legis-
35

lation proves that the rushed nature of this flawed proposal is

problematic.

You have come before us basically asking us to rubber-stamp yet

another increase of executive power, with a deadline that is ticking

away, with a proposal that seems to create another loophole by

which the Administration can bypass the Geneva Conventions by

approving abusive interrogation tactics after the fact, and by allowing coerced testimony aren’t you saying that torture was okay in

the past?

Mr. BRADBURY. No. The legislation makes clear that any statement determined to be obtained through torture wold be inadmissible in all circumstances. So we have an absolute bar on admissibility of any statements determined to have been obtained through

torture. As to other statements not determined to have been obtained through torture, every accused is going to assert that many

statements were obtained through coercion. And we think, again,

it should be left to the military judge to determine whether the

statement under the circumstances, hearing the arguments on both

sides, is reliable and probative. If the military judge determines,

based on all of the circumstances he has heard under which that

statement was obtained, that it is unreliable or lacking in probative value, the legislation would provide that it would not be admissible.

So—and we think again those judgments should be made by the

military judges and we shouldn’t create by statute some new exclusionary rule.

Mr. MEEHAN. Wouldn’t it be appropriate to craft a policy that

would be able to withstand a Supreme Court challenge and prosecute all of the detainees rather than to rush this proposal through

Congress at the last minute?

Let me just read a quote. Senator Levin of the Senate Armed

Services Committee was quoted in The New York Times today and

he said, quote: ‘‘If the Administration had behaved this way before

Gitmo and the drafting of the—the drifting of Gitmo to Abu

Ghraib, we would be a lot more secure country, our troops would

have been more secure and our position in the world would have

been more favorable.’’

Mr. Levin and others contested points in this proposal for tribunals in particular, denying the defense the right to see and therefore respond to classified information that is shown to the jury, and

allowing the introduction of hearsay and coerced evidence.

I would like everyone to comment on this. Would you comment

on the status of hearsay evidence in the President’s proposal? I am

interested in why the military rule of evidence 807 is insufficient

when it comes to hearsay.

Mr. BRADBURY. I think I will let the JAGs really respond to that

because I think there was unanimity here on the hearsay proposal

in the legislation that it is appropriate, and I think they are

probably——

Mr. MEEHAN. I am interested in why 807 is insufficient.

General BLACK. In the—go ahead.

Admiral MACDONALD. Congressman, you are talking about residual hearsay.
36

Mr. MEEHAN. I don’t see why the rule of evidence 807 would be

insufficient.

General DUNLAP. We do have a recent Supreme Court case. I

think we have Crawford v. Washington, and we would have to

evaluate what the impact of that case which does pretty significantly, I believe, limit the use of the residual hearsay rule. So in

a military commission, setting the residual hearsay rule is in essence permissible. In other words, there is a lot more latitude to

get in hearsay under the military commission process.

My personal view is that while I do appreciate the discussion in

the proposed legislation about the military judge excluding it if the

judge concludes it is unreliable or lacking in probative value, and

there is an additional paragraph in there that is taken from I think

Military Rule of Evidence (MRE) 403 that says that the judge can

exclude it if there is danger of unfair prejudice. But I would suggest, respectfully, some additional language along the lines that—

to make it perfectly clear that the military judge can exclude evidence if its admission, for whatever reason, is not in the interest

of justice or compromises a full and fair trial. There are those who

will argue that that is implicit in the notion of exclusion based on

the danger of unfair prejudice, but in my personal judgment it

would be helpful if we made that clear that that would be a basis

for the military judge to exclude evidence.

General BLACK. I agree with his comments, sir, but I would add

the provisions that have been incorporated into the legislation with

respect to hearsay. They are consistent with the standard that has

been applied in the international tribunals out there. I am very

comfortable with this procedure.

Admiral MACDONALD. Yes, sir. I would concur with General

Black. The International Criminal Tribunal of Yugoslavia, ICTY—

this is to the hearsay rule that is in the commission package right

now. That is the rule that is used and that is supported internationally by that particular court.

And, again, going back to the Hamdan decision where the Supreme Court applied Common Article 3 and particularly talked

about those judicial guarantees that are common to all civilized

people, that would satisfy that standard. The current formulation

in the package for hearsay would satisfy that formulation under—

about national law. On my personal opinion, I am very comfortable

with the formulation that is in here. And a lot of this language

was—it was a partnership between DOJ and DOD in coming up

with the current language that is in this proposal.

Mr. MEEHAN. General, earlier you said you were surprised by the

Supreme Court decision. Were you surprised at the decision?

Admiral MACDONALD. Yes, sir.

Mr. MEEHAN. I think you testified to that earlier, you were personally surprised.

Admiral MACDONALD. I think everybody was surprised that the

Supreme Court for the first time would apply Common Article 3 in

this type of a conflict. That is water under the bridge now, and now

we are left with the Hamdan decision and Common Article 3 applies, so now what we have done in looking at the commission’s

packages due to specific evidentiary rules that are listed in here—

hearsay, coercion and others—do they comply with that standard
37

as announced by the Supreme Court with respect to hearsay? I

think we are in agreement that it does.

Mr. WILSON. In the absence of the Chairman, I am Congressman

Joe Wilson from South Carolina. I am particularly happy to be here

today. I served 28 years in the JAG Corps and so as I look out and

see you today, I want to thank you for your service. Additionally,

I truly have never been prouder of JAG. Traveling the world six

times to Iraq, twice to Afghanistan, twice to Guantanamo Bay, I

have been so impressed by the professionalism of the JAG officers

that you are training and giving leadership to. They are making

such a difference on the civil action projects. It is amazing to see

the progress in developing a military justice system for Iraq, for Afghanistan.

The selflessness and dedication of JAG officers, I have never

been more impressed. I am also very grateful. My oldest son served

in Iraq for a year with the field artillery, and he has returned

home and he has just done a branch transfer to JAG. So I am very,

very grateful that he will have what dad didn’t have, and that is

combat arms experience. He is going to be an excellent JAG officer.

The question that I have, Mr. Bradbury, under the Administration’s proposal, the standard for admitting evidence under your

proposal is whether the military judge finds the evidence would

have probative value to a reasonable person. Why did the Administration choose not to use the rules of evidence applicable in trials

by general courts-martial?

Mr. BRADBURY. We chose to look to the same rule of evidence

that is applied in the International Criminal Tribunal context. So

that is exactly the kind of evidentiary threshold that is used in

those international criminal tribunals. And that is what we are

really talking about here is a criminal tribunal for war crimes

under laws of war. So you need a more flexible and open standard

generally for admissibility, subject again to the review by the military judge.

Mr. WILSON. The next question is the Administration’s proposal

states that all of the offenses codified in the legislation have traditionally been triable by military commissions. Of the 27 crimes

codified in the Administration’s proposal, which are considered a

violation of the laws of war for those codified offenses not considered a violation of the laws of war, can you identify previous military commissions that have made these offenses triable?

Mr. BRADBURY. Well, the laws of war are not codified in some

code somewhere. They are really based on the sort of common law,

if you will, international customs and law of war. And it is a concept that evolves over time, and you have some offenses which are

traditionally recognized for centuries or decades as violations of

laws of war, and many of those are incorporated into treaties under

laws of war, like the Geneva Conventions.

Many of the offenses that we have listed in the legislation are

drawn from those treaties and reflect those traditionally recognized

offenses that have been codified into treaties. But other offenses we

think can be recognized in the laws of war, even if not codified previously into treaty. You are talking about the kind of modern warfare involving war with a terrorist organization. Offenses like hijacking, offenses like terrorism, material support of terrorism.
38

These are the kinds of tactics that the enemy is using in this new

kind of war. And we think it is appropriate that the laws of war

would evolve and reflect those kinds of offenses.

So we think you can call them all laws of—violations of laws of

war. Of course, certain offenses that are in here that we have codified, like material support for terrorism, come from Title 18 of the

U.S. Code that is an offense that has been on the books and these

folks have been subject to that offense since 1992 for the United

States. We think it is appropriate that when they use those tactics

in this war against the United States, they could be subject to trial

for those same offenses under the military commission process.

Mr. WILSON. And if you could provide at a later date what has

been done we would appreciate it specified.

Mr. BRADBURY. Happy to do so.

Mr. WILSON. A final question I have, I don’t mean to be picking

on General Walker, but I am very impressed with his academic

background, Clemson University, where I have a son attending and

another son a graduate, and then he and I are both graduates of

the University of South Carolina. But, indeed, a very serious question as a parent with four sons in the military: How likely would

it be that our soldiers would be charged for violations of Common

Article 3 under 18 United States Code (U.S.C), section 2441, the

War Crimes Act? Parents have a great concern.

Mr. BRADBURY. Maybe I will start us off. Since 1997 the War

Crimes Act has made a war crime any violation of Common Article

3. Now the United States has never been engaged and we never

thought we were engaged in a Common Article 3 conflict, and we

had in mind the sort of atrocities that were committed in Rwanda,

for example, a classic Common Article 3 non-international conflict.

And that is what we had in mind when we incorporated that into

the War Crimes Act. It is not a requirement of the Geneva Conventions, by the way, that we make every violation of Common Article

3 a war crime. But Common Article 3 contains some vague language, as I have suggested. And so what the parameters of those

violations might be are subject to uncertainty and also subject to

evolving definition, because they can be interpreted by international courts and foreign governments. We think it is important

to give it certainty and definition for our troops, for our intelligence

officers who are on the front lines, in terms of handling detainees

on the war on terror so that they have that certainty and that clarity.

So what we would do is substitute or replace this general reference to any and all violations of Common Article 3, whatever

that might be, including humiliating and degrading treatment, an

ill-defined phrase, substitute for that a set of very clear serious offenses that are well defined by statute that we can all recognize

as the most serious violations of Common Article 3 and say those

are the ones that are appropriate for prosecution as war crimes. So

that all of our own personnel who are fighting in this war will have

definite certainties as to what will and will not violate that war

crime provision as a violation of Common Article 3.

General WALKER. Sir, I think it is important that we have this

common definition. We have a definition of exactly what the offenses are, but in the end we must remember that as we try to pro-
39

tect our Nation, if a son or daughter of ours commits a crime, a

war crime against the United States, they need that common definition, application of standards, and they too would need to be punished.

General DUNLAP. Could I add something to that?

Mr. WILSON. Certainly.

General DUNLAP. As a practical matter in the military, many

times we will—we will prosecute something which might be a war

crime under one of our traditional military offenses: murder, rape,

and so forth. One of the things that this country does better than

many other countries is bring to bear exactly what you spoke about

earlier, the fact that we have a robust Judge Advocate Corps in all

of the services, because the evaluation of the specific facts and circumstances of a combat situation is informed, I think very hopefully, by the experience of a military lawyer. So that when the decisions are made whether or not someone needs to be held accountable, the convening authority and so forth has the benefit of that

kind of advice, and that is why someone who has the combat arms

badge becoming a Judge Advocate is especially valuable in these

kinds of conflicts which are very confusing in chaos on the battlefield. Thank you, sir.

Admiral MACDONALD. Sir, I—I would add, the parents can rest

assured that the military has trained to Common Article 3 standards for quite some time. So it is—I mean, that is another area

that we spend an awful lot of time and effort in making sure that

our soldiers, our sailors, our Marines and our airmen are well

trained before they go in to combatants, the standards of treatment

that are expected of them when they handle detainees.

Mr. WILSON. Again, thank you all for your service. And at this

time, Mr. Snyder.

Dr. SNYDER. I want to make a quick comment. We had a conversation with another member, who over the recess had met with

a young Marine who had returned from Iraq and very eloquently

talked about the importance of the rule of law; that he had had

multiple discussions with Iraqis who knew that Americans sometimes made mistakes, but that we had a system that made it much

more likely that people would be brought to justice, our people

would be brought to justice, and he talked about how important the

rule of law was.

Mr. Bradbury, I do want——

Mr. SAXTON [presiding]. Dr. Snyder, will you yield for a minute?

I am told it would be nice to have a five-minute break here. So we

will go ahead and do that and hurry back.

[Recess.]

Mr. SAXTON. The time is yours. Dr. Snyder, the floor is yours.

Dr. SNYDER. Mr. Bradbury, I wanted—I don’t want to ask this

as a question. I want to pick on you a little bit. You quoted the

President. I read your written statement this morning. You said

the time has come. That is a—I found a very disconcerting statement to hear the President say it and to be picked up by the Administration for a variety of reasons. One of them is on this side

of the aisle, this issue had been attempted to be addressed for the

last year. Congressman Sanchez filed a bill June 23rd, 2005 that

dealt with this and it was ignored by the Administration. You have
40

had multiple people from within the Administration make comments saying you were going to get into trouble with this. It was

predicted the Supreme Court was going to have problems with the

route the Administration chose.

So now to have the President, 60 days before an election, very

dramatically, with a packed house at the White House, talk about

the time has come, it is very discouraging for us who think that

what we need to do as a Nation is to be tough, thoughtful, and bipartisan and united and come up with a system that reflects our

American values and not to use these kind of issues as a—as political pawns in an election year.

I wanted to get some specific issues and I think I will make some

comments and let the military people respond if they would.

First of all, this is an ongoing issue. Mr. Buyer is here because

he is a JAG, as you know, in the Army Reserves. We don’t have

much time, and usually when we ask questions for the record or

anything written, because of the process it will be months before

we get them. But I would like to direct a question to our folks representing the JAGs today. I would like you to provide written information to all members of the committee on recommendations that

you would like to see—have seen included in this that were not incorporated into this draft. It would be helpful, I think, as we are

trying to sort through this.

One of the issues that—Chairman Hunter is not here, but you

all went back and forth several times with Mr. Bradbury, the

JAGs, about well, what if you actually get down to a scenario with

a piece of information that is classified and the prosecution could

not move ahead without that piece of information. Would you all

address this? What if that were on—the shoe was on the other foot

and it was one of our folks that was captured by somebody and was

being tried? Would we want our folks—would you all want to be

tried if you were captured by somebody with a piece of classified

information that you could not confront? I would like you to respond to that.

I would also like you to respond to the specific question Mr.

Bradbury addressed. I am not sure I heard each one of you address

it. Do you feel that the draft we have here—and I assume you all

got it before we did last night—do you feel it adequately addresses

our legal obligations under the Geneva Conventions?

And then my last question is the preamble, the findings; we

members of Congress, we love findings. We always put stuff in

there. A lot of times they are not factually accurate. We love findings, but it seems to me it is somebody’s op-ed piece that got included on a piece of legislation that is going to be problematic. Is

it necessary that we have that set of findings? I would think that

we may be able to put together broad support for a bill like this

if we left off the findings.

Those are my questions, if we can have the JAGs respond. Start

with General Black.

General BLACK. With respect to your question on classified evidence, I think I articulated my position early on. I think we need

two protections built into the legislation, the first of which would

provide that evidence should be excluded if it is the sole evidence

that is necessary to prove a material fact for conviction. And the
41

second recommendation or the second change I would make would

be to add a provision—would be to require instruction from the

judge to the effect that if the accused has at the end of the trial

been excluded from seeing classified evidence, that the panel members, the members of the commission itself, the triers of fact, be advised that that evidence was excluded and be advised that they

should accord appropriate weight to it. So I would make those two

changes.

With respect to your second question, overall I am satisfied that

the legislative package as it exists right now satisfies our obligations under international law.

And your third question I think is out of my lane, sir.

Admiral MACDONALD. Sir, I would agree with General Black

with just, I guess, a couple of caveats. First, with respect to classified evidence. I think you—your first question alluded to how

would we feel if such a rule were applied against one of our own

service members. And we have actually testified to that before in

front of the Senate Judiciary Committee and we have testified with

the former Chairman of the Joint Chiefs who mentioned—General

Myers mentioned that the issue of reciprocity was an issue for him,

and it is an issue, in my personal opinion, for me as well that we

would be the first country that would allow evidence to be presented against an accused that he would not be able to view. And

I would be very concerned as a matter of policy that such a rule

could be applied against one of our service members by another

country that is out there.

Dr. SNYDER. And their defense would be, hey, this is how you

treat our guys.

Admiral MACDONALD. Yes, sir. So to your second question, I am

generally pleased with the commission package I would say, with

two caveats, the first one being the classified evidence that I just

mentioned, and the second being that provision that talks about coerced statements and that you could admit coerced statements as

long as they were reliable and probative. And you could have a

statement that was determined to be reliable by a military judge

based on other evidence that was introduced that was nevertheless

coerced. And I am concerned about that.

The legislation right now bans the use of statements obtained by

torture. That is a good thing. I would recommend that you look to

the Detainee Treatment Act which you passed for additional standards, and I would recommend that you look to—and I think I mentioned this earlier to the Chairman—that you look to the cruel and

inhumane and degrading treatment. If statements were obtained in

violation of the Detainee Treatment Act, I would recommend that

those statements be excluded. And I think that goes to not necessarily because you couldn’t make out that they were reliable or

probative, but because I think that goes to the underlying fairness

of our process and our proceedings. So with those two caveats, I am

generally pleased with the commission’s package.

Dr. SNYDER. Mr. Dunlap.

General DUNLAP. I completely agree with Admiral MacDonald in

all of the particulars. My main concerns about the legislation as it

is written are those that he has articulated in the exact same way.

I feel that the proposal is deficient in those respects that he has
42

outlined as to whether or not we would want to be tried, or any

servicemen. I wouldn’t want any American citizen or any citizen of

the world tried under a circumstance where the finder of fact

would have evidence that the accused never sees. I don’t think that

that process would meet Common Article 3 or fundamental notions

of justice. We are a better country than that.

So, and as to the third item, I do think it is out of my lane, and

I respectfully defer on that one.

General WALKER. Sir, in my opening statement I said I had two

concerns. The first of those dealt with trying an individual where

he does not have the ability to see the evidence against him. I simply believe that there can be no full and fair trial absent the

accused’s ability to see the evidence against him and to be present

when that evidence is presented. I think that is one of those baseline principles that are fundamental and considered indispensable

to a system of justice among civilized people.

As to the issue of reciprocity, it is really tied with that one, sir.

I think we have to understand as Congress debates these important issues that what we do, how we treat these individuals, can

have an impact upon how other countries treat our servicemen and

women as they go to foreign shores in future conflicts in future

years. So that reciprocity is important.

Generally, I believe we have addressed in this proposed legislation—it does address and comply with the Geneva Conventions in

my opinion, with the exception of the right to see the evidence

against you, even if it is classified. As to whether the findings of

the preamble to the bill are necessary, I concur that fortunately

that is my decision to decide those.

Dr. SNYDER. Thank you. One final comment, Mr. Chairman. I

have had some concerns and maybe this can get cleaned up. I have

read through this thing quickly a couple of times and it seems like

it is still pretty rough. I mean at one point in there, we refer to

appellate counsel, appellate government counsel, and appellate

military counsel. I assume they are all the same, but maybe they

are not. There is a phrase, section here, that says that there may

be no disclosure to the defense, the defendant, if the defense receives exculpatory evidence. Now, I don’t know why—why would

we have a provision in there. Does that make sense?

Mr. BRADBURY. Congressman, I believe that relates to only classified.

Dr. SNYDER. No, it doesn’t. That is what I mean by the shoddiness of the way it is drafted. It says notwithstanding any provision

of law, any defense counsel who receives evidence under this subsection shall not be obligated to and may not disclose that evidence

to the accused. And the title of the section is Disclosure of Exculpatory Evidence. That is what I mean by—while I encourage you

to look at that, it can be cleaned up, but it doesn’t say that it reads

very clearly that it refers to all exculpatory evidence.

Mr. BRADBURY. I think the subsection refers to classified evidence. That was certainly the intent, that it is limited to that classified evidence that is determined under those very, very extraordinary and limited circumstances by the military judge not to be

appropriate for sharing with the accused. And the reason we put

that provision in that, specified by Federal statute, that the de-
43

fense counsel could not share that with the—with the accused is

actually in response to comments from the JAGs and other military

lawyers that we wanted to have something very clear in that event

that would override the State bar requirements of those counsel.

Because if you did—if you left it silent, State bar rules might be

interpreted to require that counsel not to participate in those proceedings.

And so we think you can override that by Federal law and that

would actually give a protection to the counsel participating in

those proceedings and enable it to go forward.

Mr. SAXTON. Dr. Snyder, I want to thank you for bringing those

last issues to our attention in particular and we will make sure

that our legal people will go through them.

Dr. SNYDER. I encourage you to read that section.

Mr. BRADBURY. We absolutely will, Congressman. Thank you.

Mr. SAXTON. Ms. Sanchez.

Ms. SANCHEZ. Thank you, Mr. Chairman. And thank you, gentlemen, for being with us today. You know I have been very concerned

about this issue for several years now. I actually introduced a bill

in 2004 that dealt with this issue in particular, since I had been

to Gitmo and with the Padilla case and the whole issue of rights

of these people that we were supposedly trying, and of course with

some of the lower appeals court decisions that came forward out of

the D.C. court and also the Supreme Court decision. So it was no

surprise to me that Hamdan came along and the Supreme Court

basically said Congress hasn’t been doing its job. And that is really

where it is. I mean, the Administration walked on this and went

and did their stuff simply because this committee in particular of

jurisdiction didn’t address this issue.

Article I, section 8, is pretty clear. It is our job to do it and our

counterpart in the Senate. So I am glad we are at this point now,

but we really could have done this several years ago in my opinion.

I have been looking at the President’s proposal and one of the

main issues that I have is this whole issue of an appeals process,

because I think that is an incredibly important piece of this.

The existing military appeals court under the UCMJ commands

wide respect, whereas the ad hoc review that the Administration

has provided for in the DOD military commission orders has failed

to command this kind of respect out of the commentators who have

been looking at this.

Mr. Bradbury, if the military appeals process that we have under

UCMJ is so revered, can you explain why the Administration proposes to put in the Court of Military Commission review? In other

words, why set up a new system when you have got this system

that works, that everybody likes, that everybody has respect for,

where we have the experience. Why not use that existing process?

Mr. BRADBURY. Well, we have tried to create a parallel process.

So we have used the model of the UCMJ Code of Criminal Appeals.

But one of the things I think that has been very important, as I

tried to stress to the President, in all of this is that this be a separate and distinct process for military commission trials, separate

and distinct from the courts-martial trials that are used for our

own troops. So we just—we are simply creating a separate process

that is modeled on the UCMJ.
44

Ms. SANCHEZ. But doesn’t it go out of the military and go to the

U.S. Court of Appeals, to the District of Columbia Circuit and the

Supreme Court? So it is into the Federal court system. It is not

using the existing military system which is, you know, which is

what my point is, and appeals process that is tried and true under

a commission that is sitting—that is basically sitting under UCMJ.

Mr. BRADBURY. Well, I think you are referring to the Court of

Appeals for the Armed Forces which hears appeals from the Court

of Criminal Appeals, which in turn hears the appeal of the courtmartial proceeding. And we simply chose to retain the appeal process that Congress had decided on and the Detainee Treatment Act

and decided not to open that door again for redebate and reconsideration. We think it is a—in fact, in some respects gives more protection in the sense that it is an appeal to an Article 3 court as

opposed to an appeal to a court that is not an Article 3 court: the

Court of Appeals for the Armed Forces.

The Court of Appeals for the Armed Forces is steeped in the

precedence and decisions of the courts-martial, and we felt it was

important that—and in fact a law would stipulate that the precedents that have developed for courts-martial are not binding in this

procedure on military commission. Of course, the courts can look to

them as a persuasive precedent or useful precedent but they are

not binding. This, again, is a separate proceeding with separate

standards, and we thought it was appropriate to have an Article

3 court that is—that is separate from those precedents and those

traditions taking a fresh look at the issues as they come up on appeal for the first time, because we haven’t conducted military commissions in this country for a long time.

And so this will be a novel set of circumstances, and we just sort

of wanted the whole process to be fresh and to develop as cases

evolve under this new proceeding fresh, and to make it clear that

it is distinct and separate from the court-martial traditions and the

court-martial process.

Ms. SANCHEZ. May I have one more question?

General Black, in your testimony before the Senate Armed Service Committee in July, you seemed to endorse the idea of using existing military appeals court to review military commission cases.

Do you agree with that approach or do you still have—do you agree

with the approach that the Administration is putting forward, or

do you still have lingering concern with the appeals process? And

don’t you think it would enhance the credibility of the military

commissions process to place them under the appellate jurisdictions of an established and respected military appeals courts? And

of course I would invite any comments from the rest of the JAGs

here.

General BLACK. Let me begin, ma’am, but I am comfortable with

the appellate process that exists in the legislative package that is

put forth for three reasons, the first of which is since my testimony

before the Senate Armed Services Committee (SASC) in early July

the procedures have been drafted and we have incorporated a number of remarkable safeguards, the first of which is the proceedings

will be presided over by a uniformed, certified, and qualified military judge. And I am confident that the presence of such trained
45

and certified individuals in the presiding role will ensure a full and

fair trial at the trial level.

Second reason, though, is in getting right to the heart of your

question with respect to the—to whether the appellate military

courts would be an appropriate forum here, I think not. I think

that the interim courts that have been suggested here with the follow-on appellate process that provides for review by the D.C. Court

of Appeals is a good way to go. And I say that because our military

appellate courts are, as Mr. Bradbury suggested, steeped in the

rules and procedures for the Uniform Code of Military Justice.

They are indeed experts in that and the foremost experts in this.

This is a different process right from the beginning. And frankly,

you know, their expertise is, while perhaps related, isn’t as related

as might be hopeful or in terms of an appellate process. So I don’t

see that they are necessary. I think the interim appellate court

with a follow-up from the D.C. courts is an acceptable alternative.

And the third reason I think that is appropriate is the responsiveness. Our military appellate court system right now is chock

full of cases. They are working very hard and staying up with our

workload, but adding this additional burden would not be—would

not be helpful at this time.

Ms. SANCHEZ. So you feel comfortable having it be 47A of the

Uniform Code system, but at the same time having the uniformed

judge in a Federal court system doing this?

General BLACK. Yes, ma’am, I am.

Mr. SAXTON. The gentlelady’s time has expired.

Ms. Tauscher.

Ms. TAUSCHER. Thank you, Mr. Chairman. Thank you, General

and Admirals. I have to tell you that as much as I listen to this,

both sitting here and in my office—I am not a lawyer, but I have

watched Law and Order for as long as it has been on TV so I consider myself to have a law degree by TV. I think many Americans

do. And I think that what many of us consider to be one of the keystones of being in our system and being, frankly, the envy of the

world when it comes to our ability to deal with justice in this country are three simple things: fairness, swiftness, and certainty. And

up until now, as we approach the fifth anniversary of September

11th, we have been none of those. We certainly haven’t been swift,

we haven’t been certain, and the fairness issue I think is something we are trying to work on now.

What troubles me is the environment that this is all coming

down on, and none of you play in the dangerous game that we play

on this side. You play on a dangerous game in the military. We

play on one called politics. This is now being foisted on us and, Mr.

Bradbury, I am—I am impressed by what you said. You worked

with people—I think you actually said something like both sides of

the aisle—but I can promise you, you didn’t work with any House

Democrats on this.

And as as we sit here, we are now finding out what the Administration’s plan is, and I guess we are being told that this has got

to be done swiftly, and there has been no justice for the 9/11 families in the four-plus years since September 11th, but we have got

to do this right now. And believe me, I stand second to no one in

wanting to get these bad guys. I stand second to no one in wanting
46

to be sure that we can excrete from them in all possible manners,

in things other than we all know is wrong, the information we need

to protect ourselves, the person, people, and our allies.

But it is deeply troubling to me that in a very political environment this thing gets dropped on our heads and we are told we have

got to take it or leave it. And believe me, that is what is going to

happen. This is not going to be the kind of process that we should

have a deliberative process. Yesterday at eight o’clock I was at a

briefing with some of your colleagues on the new amendments to

the Army Field Manual. Took 18 months. We expected to have it

last February. We weren’t even told on February 28th that it

wasn’t coming. But there are lots of real good excuses why we

didn’t get it until yesterday. But it took 18 months. But we are

meant to do this in five legislative days.

So I don’t really have a question. What I really have is a sense

of frustration. We have already gotten it wrong once doing it just

this way. And I will tell you that I have got lots of problems with

the President’s proposal. That doesn’t mean I am weak. It doesn’t

mean that I am an appeaser. It just means I am trying to do it

right. I would like to be able to really believe that if we found

Osama bin Laden we could actually prosecute him and get justice

for the American people. I am not sure we can under the circumstances that we have now.

I applaud all of you for your hard work. I know that you are trying to do the best you can. We are, too, on this side. I am not sure

we are winning. I yield back.

Mr. SAXTON. I thank the gentlelady.

Mr. Bradbury, did you meet with Mr. Skelton? Did you have a

meeting with them on this subject?

Mr. BRADBURY. Yes, sir.

Mr. SAXTON. Thank you. Susan Davis.

Ms. DAVIS OF CALIFORNIA. Thank you.

Ms. TAUSCHER. Mr. Chairman, can I make a point? We never

saw the proposal until last night, even though he might have met

with Mr. Skelton.

Mr. BRADBURY. I did show draft legislation to Mr. Skelton.

Mr. SAXTON. It is Mrs. Davis’ time.

Ms. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman. Can I follow up on that for a second, because I know you all have had input,

and perhaps you would be willing to share that process with us and

how much input you actually had. But we could go down the line.

When did you all see the final language of this? Could you share

that with us? Mr. Bradbury, I assume you saw it. When was it

complete, I guess?

Admiral MACDONALD. We were given it last Friday. Actually, I

am sorry, a week ago Wednesday we received what was the final

draft to take a look at. The proposal that you received, we did not

receive until day before last.

Now I think also, Congresswoman, you asked about our involvement in the process. I would say that we had a very robust discussion with Department of Justice beginning in late July, which included setting up a working group between DOD and DOJ that met

over about three or four days, working on going back and forth

with different proposals and adding language.
47

So what you see reflected here in this package, there was a lot

of language that DOJ took from the military departments in putting this together. They didn’t take all of our suggestions, but that

is the interagency process at work. They are not required to take

all of our suggestions.

Ms. DAVIS OF CALIFORNIA. Right. I understand. Is there any difference among the rest of you in terms of when you saw the material, basically?

General DUNLAP. No, ma’am. I saw the material exactly as Admiral MacDonald has testified. I would, just to make it clear, there

were some meetings at the end of July and in the beginning of August. But to my knowledge, there have not been discussions since

the beginning of August to a few days ago. I will say that many

of our suggestions were incorporated. Not all of them. And as you

have heard before, I have at least one very serious reservation

about the proposal.

Ms. DAVIS OF CALIFORNIA. Thank you. I appreciate that.

Just in the interest of time I am just going to go on, because I

think the two areas that you have all identified dealing with classified information and also with coerced testimony, what do you see,

what implications do you feel exist if in fact those concerns which

you have addressed—and I understand that some of your concerns

have been incorporated—but what are the implications of that to

you? It sounds to me like those are very serious and you would

want us to certainly take that under advisement.

Admiral MACDONALD. Yes, ma’am. I go back to the reciprocity

issue that we raised earlier, that I would be very concerned about

other nations looking in on the United States and making a determination that if it is good enough for the United States it is good

enough for us, and perhaps doing a lot of damage and harm internationally, if one of our servicemen or women were taken and held

as a detainee. I think that the reciprocity issue really gets to the

heart of it.

Colonel REED. I think there is another part of the legislation that

goes to the reciprocity issue. And, again, understand that the legislation as proposed applies to unlawful combatants, basically terrorists.

There is a section in the legislation that is critical, that says for

the folks who follow the law of war—the lawful combatant, our

men and women in our Armed Forces and the other men and

women in other armed forces of other countries—that they will not

be subject to this legislation, that they would in fact be tried under

the UCMJ. That is a critical point, because if the argument is

going to be made that we need to be treated as we would treat others, we are going to treat lawful combatants under the processes

and procedures of the UCMJ.

General DUNLAP. I slightly differ from my colleague there. I

think the reciprocity issue is very important because, even taking

that argument at face value, there are other American citizens in

other government agencies, and whoever might be subject to this

kind of procedure—and I don’t believe personally that it meets

Common Article 3 standards—to have a trial where someone can

be executed, where they don’t get to see the evidence that is presented against them before the trier of fact. We can have proce-
48

dures with the judges to determine what the summary is and so

forth and what gets to go. But once it goes to the trier of fact, in

my personal judgment, it must be available to the accused so that

he or she can rebut it.

Ms. DAVIS OF CALIFORNIA. Thank you. My time is up, Mr. Chairman. I was going to follow up with a quick question about the response of the Supreme Court to that; if you think that would be

an overriding concern as well which has been identified in the

Hamdan decision; is that correct?

General DUNLAP. Yes, ma’am. I think it would be very problematic.

Ms. DAVIS OF CALIFORNIA. Which could delay justice in many instances.

Mr. SAXTON. Thank you. Mr. Larsen.

Mr. LARSEN. Thank you, Mr. Chairman. It seems to me if we

would listen to the JAGs, not in July of 2006 but perhaps in January of 2002, we would not be sitting here today. And you talked

about your involvement in the process in putting this legislation together. Again, it seems to me that the reason we are here today

is because of the lack of involvement or the lack of listening by this

Administration from military judge advocates back when they were

first putting together this military commission, and as a result we

have had no trials, commission trials, for terrorists. We have had

no convictions, and we have had no justice for Americans. And we

have been waiting five years for this. And frankly the American

people should be very tired of waiting for this. And then the President says the time is now but.

Mr. Bradbury testified earlier that there is no guarantee that

these 14 guys they rolled out yesterday are going to be prosecuted

under the system anyway. And so it seems to me that we ought to

try to get this thing right so that we do prosecute these folks.

There is a level of justice for Americans. I don’t really—I don’t

really care about the lives of these terrorists. I care about some justice for the Americans who have been victims of these terrorists.

But then we hear that they may not be prosecuted anyway under

the system that—under some bill that we pass. We need to get

something passed. We have been waiting long enough, and I hope

we don’t get bogged down in some, you know, bickering by the Administration over the reciprocity issue of classified evidence or coerced testimony.

It seems to me that there are definite concerns from uniformed

judge advocates that if those issues are not addressed adequately,

it may not pass muster again with the Supreme Court. Admiral

MacDonald, would you say that is an accurate statement?

Admiral MACDONALD. Sir, given the Hamdan decision and that

we had four justices who came down and said that excluding an accused from trial when evidence is presented against him, four of

them said that they would have real difficulty with that. Justice

Kennedy who would be the fifth, and who would give them a majority, said that he would be concerned. He would view excluding

an accused detainee from the trial with concern. And after the fact

on appeal if it—if it prevented the accused from getting a full and

fair trial, he indicated in his opinion that he would—he would reverse. So I think the law is unsettled on this point, but you can
49

draw your conclusions from where the justices came down on that

point in the Hamdan decision. And they tied it directly to Common

Article 3.

Mr. LARSEN. Would you agree with that assessment?

General DUNLAP. I agree it would be very problematic before the

Supreme Court. I don’t think the Supreme Court, for example,

would ever affirm a decision to execute an individual who was

tried—the trier of fact relied upon evidence that the accused never

saw and never had a chance to defend himself against.

Mr. LARSEN. General Walker, is this your opinion about the Supreme Court?

General WALKER. I would really concur with that based on the

findings or the writings of the specific justices in the Hamdan decision that it would be problematic where they would approve a procedure where the accused did not have access to the evidence

against him.

Mr. LARSEN. General Black.

General BLACK. I agree with General MacDonald’s assessment.

Mr. LARSEN. Seems to me we ought to get that part resolved if

that ever gets back. We wouldn’t have a bunch of cases thrown out

again because the Administration didn’t do the right thing the second time, much less the first time.

I want to make a point about the findings as well.

You all—it is out of your lane, I appreciate that. You don’t have

to make amends. I will make a comment. Finding number three,

as an example: on page three it says the President’s authority to

convene the military commissions arises from the Constitution’s investing in the President the executive power and the power of the

Commander of Chief of the Armed Forces. I hope we don’t pass

that finding. The Supreme Court of the United States decision contradicts that finding directly. It says no, you have to come to Congress to get approval of this kind of commission. We have to put

our stamp on it, whether it is this proposal or something closer to

the UMJC minus provisions. The Administration lost at the Supreme Court. And as a result, the American people are left in limbo

on the prosecution and conviction of these terrorists.

So, just as an example of the findings that are just totally out

of whack with it and inconsistent with the Supreme Court, we have

to, you know—we need to take a full vetting of the findings in this.

Mainly just focus, probably, on what we need to do, a process in

place to get prosecutions and convictions of these—of these terrorists.

Mr. BRADBURY. Well, Congressman, I will say, obviously, findings

in legislation are the business of Congress. We are offering these

up as proposed findings. I don’t think that one is out of whack. I

would say this is an area where, very clearly under the Constitution, the branches share substantial responsibility and power, because Congress does have the express authority under Article I,

section 8, to define and punish violations of the law of nations.

Mr. LARSEN. But you have been using the authority to use military force and you account for any and all justifications. We pass

something like this, who knows what you would use this for in the

future or this Administration or the next one or the next one beyond that. We have to be very careful it isn’t proven over the last
50

five years. The Congress has to be very careful how it crafts legislation, in providing legislation, in providing authority to an administration, whoever it is, because of how they might use it in the future.

Mr. SAXTON. Thank you, Mr. Larsen.

Mr. Bradbury and Colonel Reed, Mr. Larsen instigated a great

conversation on the attitude of the Supreme Court. Would you two

gentlemen comment?

Mr. BRADBURY. Well, I will say that it is the case that Justice

Stevens and the four members of the plurality opinion looked to

just glance at the idea that classified evidence may be used outside

the—considered by a commission outside of the presence of the accused. I think Justice Kennedy reserved judgment on that point,

did express some concern but said he would wait to see how it is

applied and how it unfolds in a particular case and on appeal.

Again, we are suggesting that—like Justice Kennedy, we would

suggest that Congress not prejudge that issue and foreclose that

possibility, because the circumstances of the particular prosecution

may necessitate it. And a military judge may be able to do it under

all of the protections and safeguards we have put in, which have

been—a lot of protections and procedural requirements and hurdles

have been added to this legislation over the course of our very productive discussions with the JAGS, not fully to the satisfaction of

the JAGs, obviously, but a lot of additional procedural safeguards

have been put in place. We think those go a long way toward protecting the fairness of the trial in these circumstances, and we

would just ask that that door not be closed on that possibility because it could be very important and serve for prosecutions.

Mr. SAXTON. Thank you. Colonel.

Colonel REED. I would agree with Mr. Bradbury. I have full faith

and confidence in our military judges that are certified under article 26 to be able to look at these issues, to be able to use the parameters that are provided for in the legislation and come to a full

and fair decision in terms of particular evidence.

I think that often if you paint a particular fact pattern where the

sole evidence of an accused’s guilt maybe a classified piece of evidence they never see, you may very well end up in the result that

Colonel Dunlap said. But I think the judge ought to be allowed the

opportunity to make that call; and I am confident that the procedures here, at least from my perspective, offer a full and fair ability

to get to that result.

Mr. SAXTON. Mr. Larsen’s time has expired.

Mr. Butterfield.

Mr. BUTTERFIELD. Thank you very much, Mr. Chairman.

Let me join my colleagues in thanking each and every one of you

for your testimony here today. While I have not heard all of the

questions and answers throughout the day, I did hear your opening

statements and thank you very much for your testimony.

Let me talk with Mr. Bradbury for just a second. And I realize

that I am probably the last member to address you, and I may be

standing between you and some food, and so I will try to be as brief

as I can, but let me get back if I can, Mr. Bradbury, to the reciprocity issue. Did you speak to reciprocity at any time during the day?

I know some of the generals did, but would the Administration find
51

these procedures that you put forward to be acceptable to one of

our members if they were being tried by a foreign government?

Mr. BRADBURY. I think probably not, and I think that—I would

say, we think that the procedures are fair and that they comply

with Common Article 3. When you are talking about your own

troops, you would like to see as many procedural safeguards as possible. Reciprocity is a legitimate concern and one that merits a lot

of attention and——

Mr. BUTTERFIELD. If Lieutenant John Smith was captured on the

battlefield by another government and put on trial, we would not

want these same rules to apply. Is that the Administration’s position?

Mr. BRADBURY. We think these procedures are fair, but we would

like to see for him, under the Geneva Conventions, he is entitled

to the same kind of procedures that that nation would apply to its

own armed forces. So just as we use courts-martial for our own

troops, we would like to see those troops tried by court-martial-like

procedures with all those protections if captured by a foreign nation.

Mr. BUTTERFIELD. I am sorry. Go ahead.

Mr. BRADBURY. That aspiration and that international standard

does not mean that these procedures are unfair or inadequate.

Mr. BUTTERFIELD. I have not had a chance to review this, and

I am anxious to read the detail of your proposal, but do you suspect

that you will build a good support base of the body with this bill?

Do you think the Senate is going to support this? Do you have any

indications at this point?

Mr. BRADBURY. Well, I think some senators have indicated support for it. I think that there is generally very broad support for—

just as I think you have seen from this panel today—95 percent of

what is in this legislation. I think the one or two issues that everybody is going to focus on in both Houses of Congress are the issues

that have been the focus of much of this hearing.

Mr. BUTTERFIELD. Tell me if I am right or wrong on this, Mr.

Bradbury. Under the President’s authority as he perceives it, a suspected terrorist can be held indefinitely, even though he may be acquitted of a war crime. Is that the Administration’s position? If we

put someone on trial, they are found not guilty, are we obligated

to release them to their home country?

Mr. BRADBURY. If the person has been determined to be an

enemy combatant, lawfully detained in this—under the laws of

war, under those laws of war we can detain that enemy combatant

for the duration of the hostilities.

Mr. BUTTERFIELD. Even though they are acquitted?

Mr. BRADBURY. Even though they are acquitted for a prosecution

of a particular war crime they may have been alleged to have engaged in. This procedure is a separate procedure from that that allows the United States to hold enemy combatants. This is a procedure for the trial and punishment of enemy combatants for war

crimes that they may have committed. That is separate from our

right under the laws of war to hold them as be an enemy combatant.

Mr. BUTTERFIELD. I have in my hand, Mr. Bradbury, what appears to be 14 charges of conspiracy for the 14 individuals who
52

were being transferred to Guantanamo Bay; and it appears that

the charge is conspiracy. Wasn’t conspiracy specifically excluded by

the Supreme Court in Hamdan?

Mr. BRADBURY. Excuse me. No, Congressman. Justice Stevens

and the four members of the Court in a plurality opinion concluded

that conspiracy was not a substantive offense that could be separately charged under the laws of war, but that was not part of the

majority decision for the Court that Justice Kennedy joined in. Justice Kennedy declined to reach that issue, and it is our view that

conspiracy is something that has been recognized previously as an

offense under the laws of war and something that Congress would

be within its right to recognize in this legislation.

Mr. BUTTERFIELD. Finally, let me ask you, Mr. Bradbury, aren’t

there currently courts-martial cases against our own military personnel for crimes that have been committed in the theater of operations?

Mr. BRADBURY. Yes, I believe that is right; and the JAGs can certainly speak to that.

Mr. BUTTERFIELD. Tell me—and how are the witnesses being

gathered in those cases? And how is the evidence being handled?

Mr. BRADBURY. Congressman, I will defer on that question to the

experts who know better than I to my left.

General BLACK. Yes, sir. We are indeed trying cases both in Iraq

and in Afghanistan and back here at home. We have brought

troops and units back. We gather the evidence and the witnesses

just as we do in any other criminal prosecution.

Mr. BUTTERFIELD. Do you find it problematic?

General BLACK. It is difficult, sir, yes. At times when you are on

a battlefield, it is difficult to find the witnesses on occasion.

Mr. BUTTERFIELD. But we are doing it?

General BLACK. We are doing it. Yes, sir.

Mr. BUTTERFIELD. Well, again, thank each one of you for your

testimony.

Mr. BRADBURY. Thank you, Congressman. Appreciate it.

Mr. BUTTERFIELD. Yield back, Mr. Chairman.

Mr. SAXTON. Thank you very much.

Mr. Buyer, thank you very much for your patience. It is, after

three and a half hours, your turn.

Mr. BUYER. Thank you, Mr. Saxton. It has been six years since

I sat beside you.

I want to thank you gentlemen for being here. I am going to ask

some questions about process, and then we will go to substance.

So, on process, I would—I am trying to get a better picture here

on the participation of the JAGs in the process. So, as I understand

it, you were convened to be participating in a working group in

July. Is that correct?

Admiral MACDONALD. Yes, sir.

Mr. BUYER. And that lasted four or five days?

Admiral MACDONALD. Yes, sir.

Mr. BUYER. And did you have any other contact since July?

Admiral MACDONALD. No. But when we got the final package, we

reviewed it, and it hadn’t changed substantively from the proposal

that we received after the working group met.
53

Mr. BUYER. So as—speaking to the JAGs now, as you look at

what is before us, the bill, and as you flip through the bill, you

could do what we do here in Congress. All of a sudden you recognize your words, you recognize your provisions. When you go

through this, how much of this are your words and your provisions?

If I asked you to pull out a highlighter and highlight what are your

provisions in your words, could you do that? Or would that be difficult to do?

Admiral MACDONALD. I think we could do a decent job of doing

that. For example,——

Mr. BUYER. Let’s just cut to the chase. Is this your work product?

Or is this Department of Justice work product?

Admiral MACDONALD. I think it is a combined work product.

Mr. BUYER. How much combined? Give me a percentage. You

can’t do it? Or you are hesitant to do it?

Admiral MACDONALD. No. No. I can talk generally about some of

the provisions that I have seen, some of our changes.

Mr. BUYER. I will tell you what, if I partner with you in working

something, I think I know how much is my work product and how

much is your work product, wouldn’t you? You and I must have a

different consistency then, because I am going to know.

I guess here is what my problem is. I am going to go to Mr.

Larsen. He complimented all of you. He complimented the JAGs.

The JAGs should be included more in the process. I concur. I agree.

So I am a huge advocate of the JAGs here.

So I just want to know, you see, this is going to be called military

commission. You are about to be used. So if you are about to be

used, I want to know how much of the military has been involved

in the process. So please answer my question. How much of this

is military work product?

Your silence is killing me.

General DUNLAP. Congressman, I believe that the draft was prepared by the Department of Justice.

Mr. BUYER. Okay.

General DUNLAP. There was input by judge advocates and our

representatives, our folks, at the end of July. I believe the Attorney

General came over and spoke with the Judge Advocate Generals.

I think that was on the 28th of July.

I am informed that the last e-mail exchange was around the 9th

of August, and Admiral MacDonald testified when we got the no

kidding draft that you have, which was a few days ago, and the

draft that I looked at last night was the draft that I knew that you

were going to have, because I wanted to be 100 percent certain that

I was looking at exactly the same thing that you all had. I will say

that, in my judgment, many of the concerns that we had were included in the Justice Department draft.

I need to say that——

Mr. BUYER. In their opening draft? Or the draft subsequent to

the working group?

General DUNLAP. Subsequent to the working group, sir.

Admiral MACDONALD. I would agree with that, the draft subsequent to the working group.

Mr. BUYER. All right. What role did the General Counsel in DOD

and with regard to the services play in this process?
54

Admiral MACDONALD. The DOD General Counsel put together

the DOD portion of the working group that went over to Justice

Department over that three- or four-day period to work with Mr.

Bradbury’s attorneys on that, the draft that eventually came out of

the working group.

Mr. BUYER. Okay. Mr. Saxton, can I have some latitude, if I may,

please?

Colonel Reed——

Colonel REED. Yes, sir.

Mr. BUYER [continuing]. Earlier you said—with regard to classified evidence, you said, quote, in my opinion, classified information

is okay. Is that your personal opinion or is that the opinion of that

reflecting the chairman?

Colonel REED. The chairman and I have discussed it. He is as

comfortable with the draft written as I am.

Mr. BUYER. So when you say ‘‘my opinion,’’ is it your personal

opinion or does it reflect the opinion of the chairman?

Colonel REED. I can only——

Mr. BUYER. Are you here to reflect the opinion of the chairman?

Colonel REED. No, sir. I am here as his legal counsel. Obviously,

I cannot speak for the chairman. Sir, you will have to ask the

chairman that question. But in my discussions with him, we have

discussed this, we have discussed that particular provision, and in

those discussions I believe he is comfortable with that provision.

Mr. BUYER. All right. With regard to the habeas corpus petitions

that are pending presently, if we adopt this process, what impact

does that have on the present pending cases?

Mr. BRADBURY. It would extinguish the habeas cases and it

would limit the review as the Detainee Treatment Act provided for

to appeals from Combatant Status Review Tribunal determinations

of enemy combatant status and final judgments of the military

commissions. Other than that, all the habeas cases would be extinguished by this legislation.

Mr. BUYER. Major General Black, if we were to adopt your position, the position also endorsed by some of the other JAGs, with

regard to the sole evidence to convict, defendant cannot confront

the evidence that it may violate a fundamental or indispensable judicial guarantee; therefore, the case should not proceed. Then if we

are not—if we have got an individual we know is one of the conspirators of 9/11, but we have got some particular sole evidence

that the Administration believes should—they don’t want to show

them that evidence, we then hold that individual for as long as we

are involved in the war on terror?

General BLACK. Yes, sir.

Mr. BUYER. All right. With regard to discovery and following the

rules of discovery, so the American taxpayers are going to be paying for all of this discovery by the defense, would they not? The

American taxpayers are going to be paying for the defense costs of

the September 11 terrorists.

General BLACK. Roger.

Mr. BUYER. They are, aren’t they? All the JAGs are nodding their

heads in the affirmative.
55

General DUNLAP. It is possible that some civilians—of funds to

fund the defense, and there are many groups out there that I believe will want to defend——

Mr. BUYER. I just want to make sure. You are absolutely correct.

They can hire their civilian counsel. They can do their own defense.

But if they cannot hire or if they do not have the means, the American taxpayers are going to be paying for that defense just like indigent counsel, right?

General DUNLAP. Yes, sir.

Mr. BRADBURY. I would say, Congressman, that the military defense counsel are already going to be employees of the Federal Government whose salaries are paid. But, yes, you are right. We would

be providing defense counsel, appointed military defense counsel, to

these individuals, but we would not be paying for their private

counsel.

Mr. BUYER. Well, I just want the world to know and understand,

as we are putting together a process that gives judicial guarantees,

that the American taxpayer is going to be providing not only the

counsel but also the discovery process here.

With regard to the United Kingdom and Spain, do we know how

they are treating these individuals who are also al Qaeda and committed terror acts against their own people? Mr. Bradbury, do we

know what they are doing and how they treat them and the status

by which we give what we call these unlawful combatants?

Mr. BRADBURY. Well, we do know how they treat criminal defendants who have been taken up under their new terrorism laws,

for example, in the U.K. But with respect to those who are not

charged, that are just held perhaps by intelligence services, I have

no personal knowledge of that.

Mr. BUYER. All right. The reason I ask that question—and I appreciate the latitude of the Chair—is that status is everything

here. So I agree with the JAGs, and I am not going to incorporate

my feelings with some of the feelings of my colleagues that are

upset here over a delay of time or whether victims of September

11 are finding their justice because I am just as shocked at the Supreme Court. I would be in the three in the Supreme Court, applying Common Article 3 of the War Crimes Act to this.

It blows my mind. I mean, I got it wrong at the JAG school. I

just didn’t get that. So now I look at this and go, what happened?

How are we going to treat saboteurs now? Or status is going to be

everything now. If we are going to create this process, that is that

access. So now that article 5 hearing is pretty doggone important

on where we go from here and who gets access into this new court

of jurisdiction. This is really interesting.

Mr. SAXTON. Mr. Buyer, unfortunately, some——

Mr. BUYER. I understand.

Mr. SAXTON. The Subcommittee on Intelligence of the Homeland

Security Committee is waiting for this room and have been since

1. So under other circumstances——

Mr. BUYER. Can I look through my notes real quick?

Mr. SAXTON. Real quick.

Mr. BUYER. All right. Hold on. All right, I think I have got

enough for now. I am going to see you afterwards.
56

Mr. SAXTON. We thank you for your participation and your patience; and if you would be kind enough to make yourself available

to this committee as we work through this process, we would appreciate it.

Mr. BUYER. Thank you. Look forward to working with the gentlemen of the committee.

Mr. SAXTON. Thank you.

I asked a short question earlier today regarding how this process

would treat members of other terrorist organizations other than al

Qaeda who have engaged in hostilities against the United States;

and I wonder, Mr. Bradbury, if you would perhaps put something

in writing to us that would help us clarify this in our minds.

It seems like there are so many—it seems to me as a nonlawyer

that there are so many sets of circumstances that we will eventually have to make determinations on, prior acts prior to the time

that we were engaged in hostilities with al Qaeda, with the bombings in Africa, with the bombing of the Cole, with the Saudi Arabian activities carried out by al Qaeda or other groups, and of

course the question of other groups such as Hezbollah. All of these

are separate, different kinds of circumstances, and we need to

understand——

Mr. BRADBURY. Yeah.

Mr. SAXTON [continuing]. The circumstances, the language and

the law that we are going to put together to deal with these types

of situations.

Mr. BRADBURY. Yes.

Mr. SAXTON. I am not looking to prolong the hearing today further, but if you could just put something in writing.

Mr. BRADBURY. I would be happy to do that. The legislation is

intended to be flexible for future circumstances, and it is intended

to apply to at-war crimes committed by al Qaeda members prior to

9/11.

Mr. SAXTON. Good. And how long do you think it would be before

we might expect to receive something from you on that? Because

we need to proceed next week with——

Mr. BRADBURY. We will try to get you something next week.

Mr. SAXTON. Thank you.

Thank you all for your participation. We appreciate your patience

and participation as well, and the committee is adjourned.

Mr. BRADBURY. Thank you.

[Whereupon, at 1:48 p.m., the committee was adjourned.]
A P P E N D I X

SEPTEMBER 7, 2006

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SEPTEMBER 7, 2006

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