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80–293 PDF 2002

S. HRG. 107–513

DEPARTMENT OF DEFENSE’S IMPLEMENTATION OF

THE PRESIDENT’S MILITARY ORDER ON DETENTION TREATMENT AND TRIAL BY MILITARY

COMMISSION OF CERTAIN NONCITIZENS IN THE

WAR ON TERRORISM

HEARING

BEFORE THE

COMMITTEE ON ARMED SERVICES

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

DECEMBER 12, 2001

Printed for the use of the Committee on Armed Services

(

COMMITTEE ON ARMED SERVICES

CARL LEVIN, Michigan, Chairman

EDWARD M. KENNEDY, Massachusetts

ROBERT C. BYRD, West Virginia

JOSEPH I. LIEBERMAN, Connecticut

MAX CLELAND, Georgia

MARY L. LANDRIEU, Louisiana

JACK REED, Rhode Island

DANIEL K. AKAKA, Hawaii

BILL NELSON, Florida

E. BENJAMIN NELSON, Nebraska

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

JEFF BINGAMAN, New Mexico

JOHN WARNER, Virginia

STROM THURMOND, South Carolina

JOHN MCCAIN, Arizona

BOB SMITH, New Hampshire

JAMES M. INHOFE, Oklahoma

RICK SANTORUM, Pennsylvania

PAT ROBERTS, Kansas

WAYNE ALLARD, Colorado

TIM HUTCHINSON, Arkansas

JEFF SESSIONS, Alabama

SUSAN COLLINS, Maine

JIM BUNNING, Kentucky

DAVID S. LYLES, Staff Director

JUDY A. ANSLEY, Republican Staff Director

(II)

C O N T E N T S

CHRONOLOGICAL LIST OF WITNESSES

DEPARTMENT OF DEFENSE’S IMPLEMENTATION OF THE PRESIDENT’S MILITARY

ORDER ON DETENTION TREATMENT AND TRIAL BY MILITARY COMMISSION OF CERTAIN NONCITIZENS IN THE WAR ON TERRORISM

DECEMBER 12, 2001

Page

Wolfowitz, Hon. Paul D., Deputy Secretary of Defense ........................................ 9

Haynes, Hon. William J., II, General Counsel, Department of Defense ............. 15

(III)

(1)

DEPARTMENT OF DEFENSE’S IMPLEMENTATION OF THE PRESIDENT’S MILITARY

ORDER ON DETENTION TREATMENT AND

TRIAL BY MILITARY COMMISSION OF CERTAIN NONCITIZENS IN THE WAR ON TERRORISM

WEDNESDAY, DECEMBER 12, 2001

U.S. SENATE,

COMMITTEE ON ARMED SERVICES,

Washington, DC.

The committee met, pursuant to notice, at 9:34 a.m. in room SR–

325, Russell Senate Office Building, Senator Carl Levin (chairman)

presiding.

Committee members present: Senators Levin, Kennedy,

Lieberman, Cleland, Landrieu, Reed, Akaka, Bill Nelson, Ben Nelson, Dayton, Bingaman, Warner, McCain, Smith, Inhofe, Allard,

Sessions, and Collins.

Committee staff members present: David S. Lyles, staff director;

Christine E. Cowart, chief clerk; and Bridget M. Whalan, special

assistant.

Majority staff members present: Richard D. DeBobes, counsel;

Evelyn N. Farkas, professional staff member; Maren Leed, professional staff member; Gerald J. Leeling, counsel; Peter K. Levine,

general counsel; and Arun A. Seraphin, professional staff member.

Minority staff members present: Judith A. Ansley, Republican

staff director; Charles W. Alsup, professional staff member; Edward

H. Edens IV, professional staff member; William C. Greenwalt, professional staff member; Carolyn M. Hanna, professional staff member; Mary Alice A. Hayward, professional staff member; George W.

Lauffer, professional staff member; Patricia L. Lewis, professional

staff member; Ann M. Mittermeyer, minority counsel; Scott W.

Stucky, minority counsel; and Richard F. Walsh, minority counsel.

Staff assistants present: Dara R. Alpert, Daniel K. Goldsmith,

Jennifer Key, and Nicholas W. West.

Committee members’ assistants present: Frederick M. Downey,

assistant to Senator Lieberman; Andrew Vanlandingham, assistant

to Senator Cleland; Marshall A. Hevron and Jeffrey S. Wiener, assistants to Senator Landrieu; Elizabeth King, assistant to Senator

Reed; Davelyn Noelani Kalipi, assistant to Senator Akaka; William

K. Suley, assistant to Senator Bill Nelson; Eric Pierce, assistant to

Senator Ben Nelson; Brady King, assistant to Senator Dayton;

Wayne Glass, assistant to Senator Bingaman; Christopher J. Paul,

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assistant to Senator McCain; Margaret Hemenway, assistant to

Senator Smith; J. Mark Powers, assistant to Senator Inhofe;

George M. Bernier III, assistant to Senator Santorum; James

Beauchamp, assistant to Senator Roberts; Douglas Flanders, assistant to Senator Allard; Arch Galloway II and Rick Dearborn, assistants to Senator Sessions; Kristine Fauser, assistant to Senator Collins; and Derek Maurer, assistant to Senator Bunning.

OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

Chairman LEVIN. Good morning, everybody. The committee

meets this morning to receive testimony from the Department of

Defense on the Department’s plans to implement the President’s

military order of November 13, 2001. The President’s military order

relates to the detention, treatment, and trial by military commissions of certain non-citizens in the war against terrorism. Secretary

Rumsfeld has been designated by the President to develop orders

and regulations to carry out that military order. Last week, the Attorney General referred many questions from the Judiciary Committee about rules and procedures for the military commissions to

the Department of Defense.

The military order was issued by the President in the aftermath

of, and in response to, the horrendous terrorist attacks on September 11 of this year. Congress, on September 14, authorized the use

of all necessary and appropriate force against those nations, organizations, or persons that planned, authorized, committed, or aided

those terrorist attacks or harbored such persons or organizations.

The United Nations Security Council, at the urging of the United

States, reacted to those terrorist attacks by calling on all states to

work together urgently to bring to justice the perpetrators, organizers, and sponsors of these terrorist attacks and stresses, in the

words of the United Nations resolution, that ‘‘those responsible for

aiding, supporting, or harboring the perpetrators, organizers, and

sponsors of these acts will be held accountable.’’

On September 11, the North Atlantic Council released a statement that, among other things, said, ‘‘Our message to the people

of the United States is that we are with you. Our message to those

who perpetrated these unspeakable crimes is equally clear: you will

not get away with it.’’ For the first time in its history, NATO invoked article 5 of the Washington Treaty, which states that an

armed attack on one or more of the allies in Europe or North

America shall be considered an attack on them all.

Today, NATO AWACs aircraft are flying patrols over the United

States to assist our armed forces in protecting the United States.

Heads of government and state have visited the White House to express support for the United States and to pledge their cooperation

to bring to justice the perpetrators, organizers, and sponsors of the

terrorist attacks.

In light of the extraordinary support from the international community, support which I believe reflects a recognition of and appreciation for the United States’ core values of democracy, freedom,

tolerance, and respect for due process, I believe that we should

work to ensure that the manner in which the military commissions

are carried out will not undercut either those core values or that

international support. We should also work to ensure that the way

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in which the military commissions operate does not jeopardize the

standing of the United States to object to unfair conduct by military tribunals of other nations toward U.S. citizens—for example,

the secret trials without access to states evidence by a Peruvian

military court. Finally, we should work to ensure the military commissions will operate in a manner that doesn’t cause other nations,

including our allies, to refuse to extradite suspected terrorists to

the United States because of the alleged lack of due process provided by such commissions.

I believe there is an appropriate role for military commissions.

They have a long history going back, in one form or another, to

George Washington, but they must be used wisely, and they must

provide for the basic rights for the individuals tried before them so

that we do not violate our fundamental values of fairness and due

process, values that this Nation has always stood for and values for

which American service men and women have risked their lives.

A careful reading of the President’s military order raises a number of issues. The scope of coverage is broad, since it includes both

past and future acts, and there’s no apparent time limit and no definition of terrorism. The order says that it applies not just to, ‘‘violations of the laws of war’’, but also to violations of, ‘‘other applicable laws’’. The Attorney General, in his testimony before the Judiciary Committee last week, said that it would apply only to individuals who committed war crimes. White House Counsel Alberto

Gonzales made a similar statement. But the President’s military

order reads otherwise. There are also many questions about the

conduct of the trials before the military commissions.

Before I get into some of those questions, I want to clarify one

matter. A number of people, the White House counsel included,

have equated military commissions with our system of military justice, including courts-martial. This committee has jurisdiction over

the Uniform Code of Military Justice, which is found in Title 10 of

the United States Code. There is a difference between the high

level of protections afforded our military personnel tried before

courts-martial where the evidentiary rules and burden of proof are

virtually identical to those in our Federal district courts, and the

procedural protections for individuals tried before military commissions. Speaking of them in the same breath creates an erroneous

impression about both.

The United States Code itself provides that the principles of law

and the rules of evidence that are generally recognized in the Federal trial of criminal cases should apply to military commissions

only so far as the President considers practicable. President Bush

has already made an affirmative finding in his order that such is

not practicable. But what he does require is that the rules and regulations issued by the Secretary of Defense shall, ‘‘at a minimum,

provide for . . . a full and fair trial.’’ The Secretary of Defense’s

task, then, is to establish the rules and procedures to assure a full

and fair trial.

One of our objectives today is to explore what some of those rules

and procedures should include. For instance, does it include the

accused’s right to present witnesses? Does a full and fair trial provide for the presumption of innocence? Does it provide, for the

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sel, for those who cannot afford one? Does a full and fair trial necessitate a unanimous vote for the imposition of a death penalty?

Under President Bush’s military order, conviction and sentencing

can occur on a two-thirds vote of a majority being present. In a 5-

person commission with a majority of three members present, that

could require a vote of only two of the members of the commission.

Can that be tightened by the Secretary of Defense should he determine to do so?

Does a full and fair trial provide for habeas corpus? The Attorney

General told the Judiciary Committee that habeas corpus would be

available to a person tried by a military commission sitting in the

United States. White House Counsel Gonzalez has written that the

President’s order, ‘‘preserves judicial review in civilian courts’’. But

the President’s order itself states that, ‘‘an individual shall not be

privileged to seek any remedy or maintain any proceeding . . . in

any court of the United States, or any state thereof.’’ We need to

hear how these seemingly conflicting positions are going to be resolved.

Some have suggested that it is aiding terrorists or diminishing

our resolve or eroding national unity to discuss the need for fundamental due process in military tribunals. Quite the contrary.

What this country is about and what the President’s announced intent to bring terrorists to justice was about are values of due process and justice. I hope the Secretary of Defense will welcome constructive discussion of the issues that he must grapple with in designing procedures for military commissions.

Public discussion about how best to dispense justice can make

the outcome stronger. It will help assure that military commissions

will stand the test of time so that we don’t look back with regret

at how we handled these critical issues in the crucible in which we

find ourselves.

The bottom line for me is this. Military commissions have a role

when our Nation is attacked and civilians are deliberately targeted

in violation of the laws of war. If the rules adopted by the Secretary of Defense provide for a fundamental level of due process,

it will be recognized as such by the civilized nations of the world.

These military commissions will not only dispense prompt results,

but just results, which, in turn, will enhance the status of the

United States as the standard-bearer for democracy, respect for

human rights and human liberty.

Senator Warner.

STATEMENT OF SENATOR JOHN WARNER

Senator WARNER. Thank you, Mr. Chairman. Your bottom line,

I think, frames the issues before us. I would only add that the

President of the United States, who has brilliantly and courageously executed this military operation to date, will continue to

see that his cabinet officers, primarily the Secretary of Defense,

who’s represented here today by a very distinguished Deputy Secretary of Defense, will formulate those regulations in such a way

as to preserve the absolutely essential fundamental due process to

which you referred. We must do this if we are to continue in this

war against terrorism and have the vital support that is necessary

of coalition nations joining in these efforts.

5

This is a clear example of the constitutional authority of a President of the United States in the time of war. It goes way back into

the history of our Nation. Many other Presidents faced with comparable situations have exercised their constitutional right to establish these tribunals.

Now, the Department of Defense, thus far, is proceeding, in my

judgement, very carefully and very thoroughly to devise these regulations, consulting with other departments and agencies of the Federal Government and reaching outside of government to receive the

benefit of counsel from those who have had long careers in law and

who have spent their lifetime ensuring due process for others. I

hope, at some eventual time, the Secretary of Defense can share

with the public those many distinguished scholars and others who

have worked with you in this challenge.

The use of the military commissions and courts martial are the

most widely accepted venues for enforcing violations of the law of

war, a body of law virtually unknown to the average citizens here

in our Nation, but nevertheless, well established international law

within our own jurisprudence.

The events of September 11 that resulted in the murder of thousands of our innocent—and I repeat, innocent—American civilians

and many others from over 80 nations, were acts of war against the

United States and against the whole civilized world. The United

Nations and NATO have endorsed the United States’ right to use

military force in self defense. Congress has authorized the use of

force. We are in a war, and we will follow through and conclude

these military operations at some time in the indefinite future. But

in the meantime, it is incumbent upon our President to begin to

lay the foundation for bringing to the courts of justice those who

are identified as perpetrators of these crimes.

Mr. Chairman, we are privileged on this committee to have several members of the Judiciary Committee of the United States Senate. That committee has done a good deal of work on this issue, including four hearings. On our side, we have Senator Sessions. I’m

going to ask that my statement be incorporated into the record and

yield a few minutes to him with my concluding remark. This Nation is faced with perhaps the most serious challenge in contemporary America to balance due process, freedom, civil liberties, all

of those things we hold most dearly, against the need to bring to

justice, in a sense of fairness, those who are identified as the perpetrators of this series of crimes. We will achieve that, I am confident.

[The prepared statement of Senator Warner follows:]

PREPARED STATEMENT BY SENATOR JOHN WARNER

Thank you, Senator Levin. I join you in welcoming our distinguished witnesses,

who will provide testimony and clarification on how the Department of Defense

plans to implement the President’s recent Military Order on military commissions.

This is the first in what I expect to be a series of hearings by this committee to

exercise our oversight regarding the use of these military commissions.

To be very clear, we are talking about trials for the terrorists who carried out the

horrific attacks of September 11, and those who aided them. The United States was

attacked, with grievous loss of life, by a hostile foreign force. The terrorists declared

war on the United States on September 11, and the President has responded with

the full and appropriate force and power of the United States.

6

The events of September 11 were clearly acts of war. These attacks intentionally

targeted civilians and sought to cause indiscriminate death and destruction clear

violations of the law of war (i.e., the internationally accepted laws governing the

conduct of military operations). The military order of November 13 establishing military commissions to try these terrorists is a logical next step.

The precedents for the use of such commissions date back to the formative days

of our Republic and extend through their most recent use at the conclusion of World

War II. The Supreme Court has repeatedly upheld the constitutionality of using

military commissions to prosecute individuals charged with violations of the law of

war. In one such ruling, the Supreme Court explained. ‘‘Since our Nation’s earliest

days, such commissions have been constitutionally recognized agencies for meeting

many urgent governmental responsibilities related to war.’’

Clearly, the establishment of such commissions is within the constitutional authorities granted the President. In addition, title 10 of the U.S. Code affirms the

President’s authority to employ military tribunals and establish rules for their guidance.

The congressional role in this process is one of oversight; of 11 ensuring that the

procedures established for the conduct of these commissions are comprehensive, appropriate to current circumstances and fair. We begin that oversight this morning.

Each circumstance under which a military commission has been used in the past

has been different, requiring the establishment of unique rules and procedures.

There will be no difference this time. I am confident the Department understands

its responsibilities in this regard, and will propose guidelines that will meet the

moral and legal standards this Nation expects and so steadfastly defends, at home

and around the world.

Military commissions and courts-martial are the most widely accepted venues for

enforcing violations of the law of war. The events of September 11 that killed approximately 4,000 civilians from over 80 nations were acts of war against the United

States, and against the civilized world. The United Nations has endorsed the United

States’ right to use military force in self-defense, and Congress has authorized the

use of force.

That we are at war against foreign terrorists that disregard the most fundamental

principles of morality and law cannot be disputed. Such times demand that we utilize all means at our disposal to defend our Nation, ensure the welfare of our citizens and preserve our liberties.

I thank our witnesses for the opportunity to discuss this important subject today.

I look forward to working with you and my colleagues in Congress as we discuss

how best to ensure that justice is done in a timely, prudent, and fair manner. Thank

you.

So, Mr. Sessions, if you’d take the balance of my time. Thank you

for your work on this subject.

STATEMENT OF SENATOR JEFF SESSIONS

Senator SESSIONS. Thank you, Mr. Chairman and Mr. Ranking

Member, and I thank you for your remarks because we’re talking

about some matters of real importance. I thought it would be valuable, Senator Warner, to recapitulate some of the things that have

occurred already.

There have been four hearings in the Judiciary Committee, one

before the full Judiciary Committee, in which Mr. Michael Chertoff,

the Assistant Attorney General, Criminal Division, answered questions concerning all matters dealing with the Nation’s response to

these terrorist attacks, including military commissions. Then we

had a subcommittee hearing with Senator Schumer, where I’m the

ranking member, and it dealt solely with the military commission.

I think we had a lot of extreme comments early on about what was

right and legal and proper.

I think after that hearing, all of us concluded that there was a

firm constitutional and historical and legal basis for military commissions and even liberal professors, such as Laurence Tribe and

Cass Sunstein, both affirmed their belief that a military commisVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
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sion is a legitimate way to deal with illegal combatants in a time

of war.

Senator Feingold also had a hearing that I participated in on

issues relating to the terrorist attacks. Then we had a full committee hearing of about 4 hours with the Attorney General in which

he answered all kinds of questions dealing with this entire matter.

I felt like, after that, many of the concerns had been allayed.

Many of the fears that some people initially expressed had been

satisfied, and the procedures that were ongoing, when clearly studied, were the kind of procedures we can be proud of.

So I think, at this point, the military commission is legitimate.

I think it’s appropriate that the Department of Defense be working

on the procedures to conduct those. The Uniform Code of Military

Justice (UCMJ) that we authorized in this Congress specifically

gives the President the power to set the procedures for a military

commission. Ultimately, they’ll have to be fair. The Department of

Defense will have to be sure these trials are conducted fairly.

But I think we would do well to recognize that this Senate really

isn’t in a position to draft specific procedures for military trials

under these circumstances. We should let the Defense Department

do that and evaluate them as they go forward.

Thank you, Mr. Chairman.

Chairman LEVIN. Thank you, Senator Sessions. Senator Kennedy, of course, is also on the Judiciary Committee. In chatting

with Senator Warner here, we thought it would be appropriate also

for Senator Kennedy to speak, should he desire. Then we’re going

to go to our witnesses, and then come back to an 8-minute round

of questions.

STATEMENT OF SENATOR EDWARD M. KENNEDY

Senator KENNEDY. Thank you. First of all, I think any of us who

are meeting today are once again mindful, as our two chairs have

said, about thanking you, Mr. Secretary, and through you, the military forces of our country that are doing such a superb job. I think

all Americans feel that way. It’s just one more expression of that

feeling. Second, thank you very much for being here to discuss this

topic.

As a member of the Judiciary Committee, and also the Armed

Services Committee, the two committees’ interest in justice and

also the pursuit of those that are violating our laws are best, I

think, illustrated by this morning’s announcement that the Justice

Department will go ahead with Zacarias Moussaoui and try him in

a Federal court. That’s in the Judiciary Committee’s jurisdiction;

military tribunals are in this committee. We’re talking about a person that is going to be charged with the kinds of crimes that

threaten the lives of American citizens. That decision is a clear expression of the administration’s confidence in the Federal courts

and where all the rights and protections will be accorded to the defendant in that.

We are now considering military tribunals. We’re going to be interested in what protections are going to be there, in terms of those

that will be under the military tribunals, in defining how the administration is going to make the judgments between one and the

other.

8

I think that this decision by the Justice Department is enormously significant. At a time in your comments, I’d hope you would

express whether you supported that decision and how you evaluated that decision, what the considerations were in your own mind

about why that order has gone to the Federal courts as compared

to going to the military court. I think these illustrations of the military tribunal, which we’ll be discussing today, the decision to try

one of the leading terrorists in a Federal court illustrates at least

the challenges that we’re going to be faced with. I will be enormously interested, as one who has prime interest and responsibility

in both of these areas, to hear your views about this.

Thank you, Mr. Chairman. I would ask that my full statement

by made a part of the record.

[The prepared statement of Senator Kennedy follows:]

PREPARED STATEMENT BY SENATOR EDWARD M. KENNEDY

All of us are proud of the men and women of our Armed Forces for all they’ve

done and, all they are doing for our country. Our service men and women are courageously answering the call to defend our country and preserve our freedom, and we

owe them our strongest possible support.

Here at home, Americans today are more united than ever in our commitment to

win the war on terrorism and protect the country for the future. An essential part

of meeting this challenge is protecting the ideals that America stands for in this

country and around the world.

I continue to have serious concerns about the President’s order on military tribunals. The Constitution gives Congress the power to define and punish ‘‘offences

against the law of nations,’’ and to create courts inferior to the Supreme Court. Yet

Congress has not expressly authorized the kind of military tribunals in the President’s order.

The Military Order is excessively broad. It could potentially affect 20 million lawful resident aliens in the United States. It applies not only to suspected members

of al Qaeda, but also to people not suspected of any involvement in the September

11 attacks. It authorizes military tribunals to try individuals not only for war

crimes, but also for violations of other unspecified laws. While the order requires

‘‘full and fair trials,’’ it does not explain what ‘‘full and fair’’ means. It allows completely secret trials, conducted outside the established rules of military justice. It

states that defendants ‘‘shall not be privileged’’ to appeal their convictions and sentences to any state, Federal, or international court.

In its current form, the order is inconsistent with principles of justice that the

United States has advocated internationally. Over the years, our government has

opposed military tribunals in other nations because of their failure to provide adequate due process.

The State Department’s most recent human rights report criticized the use of

military courts in Peru in the case of Lori Berenson, an American who was tried

for terrorism by a secret military tribunal. As the report stated, ‘‘Proceedings in

these military courts . . . do not meet internationally accepted standards of openness, fairness, and due process.’’

On the use of military tribunals to try accused terrorists in Egypt, the State Department said that the ‘‘use of military and State Security Emergency courts . . .

has deprived hundreds of civilian defendants of their constitutional rights to be

tried by a civilian judge. . . . [T]he military courts do not ensure civilian defendants

due process before an independent tribunal.’’

The United States, by authorizing secret military tribunals now, without fundamental due process guarantees in place, may be accused of a double standard.

The order may also limit our ability to extradite terrorist suspects apprehended by

our allies.

Given the broad scope of the original military order, even if it’s narrowed now,

I’m concerned that it will be used by other countries to justify secret military tribunals and avoid basic due process safeguards. It can undermine America’s credibility

in criticizing secret military tribunals in other countries. Our military tribunals may

never be seen as legitimate by other countries.

The Secretary of Defense has been given the responsibility of drafting rules for

the tribunals. By narrowly defining the scope of the tribunals’ use and providing

basic due process safeguards, the Secretary can do much to ease the serious conVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 80293.101 SARMSER2 PsN: SARMSER2
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cerns about the President’s order. I urge the Secretary to include the following safeguards to identify the guilty and protect the innocent:

• an independent and impartial tribunal • the presumption of innocence • proof ‘‘beyond a reasonable doubt’’ • open and public trials, with exceptions only for demonstrable reasons of

national security or public safety

• representation by independent and effective counsel • the right to examine and challenge evidence offered by the prosecution • the right to present evidence of innocence • the right to cross-examine adverse witnesses and to offer witnesses • fixed, reasonable rules of evidence • fair appellate review of convictions and sentences

In preparing rules for military tribunals, the Department has an excellent

model—the Uniform Code of Military Justice. As White House Counsel Alberto

Gonzales recently wrote, the ‘‘American military justice system is the finest in the

world.’’ There is no reason now to depart substantially from established principles

of military justice.

It is also important to apply the military order narrowly. It may make sense to

use military tribunals to try members of al Qaeda who are captured in Afghanistan

and are suspected of war crimes. It would be a mistake, however, for military tribunals to replace our existing system of criminal justice here in the United States.

Testifying before the Judiciary Committee 2 weeks ago, Assistant Attorney General

Michael Chertoff testified that he had complete faith in the ability of Federal criminal courts to try terrorist cases. He stated:

I have to say that the history of this government in prosecuting terrorists

in domestic courts has been one of unmitigated success and one in which

the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.

I’m encouraged by the Justice Department’s announcement yesterday that it has

obtained an indictment against suspected terrorist Zacarias Moussaoui in Federal

court. To the fullest extent possible, we should use our domestic courts to try terrorists, and let the military focus on what it does best—protecting our country and our

freedoms.

Chairman LEVIN. Thank you, Senator Kennedy. Now, Secretary

Wolfowitz, we turn to you. Thank you for coming, and, again, we

all join Senator Kennedy’s sentiments about the extraordinarily

brilliant manner in which this matter has been handled, militarily.

We thank you. We thank the Secretary and his staff for their total

commitment and focus on prevailing, and, of course, the men and

women of our military for their truly superb operations.

STATEMENT OF HON. PAUL D. WOLFOWITZ, DEPUTY

SECRETARY OF DEFENSE

Secretary WOLFOWITZ. Since thanks are due here, I think thanks

are due to the committee and to Congress for the great support

they’ve given to the Defense Department over the years and particularly in recent months in this war effort. As every one has indicated, I think most of all we, as a Nation, are indebted to the brave

men and women in uniform who have been conducting this operation brilliantly and bravely and, so far, quite successfully, although there’s a lot more work to do.

Mr. Chairman, I’m not sure I’ve ever delivered a statement that

is the testimony of the Secretary of Defense as well as myself, but

that is what I’m doing this morning. Secretary Rumsfeld had very

much hoped to be here this morning, but unfortunately he had a

National Security Council meeting and was prevented from attending. He and I prepared this statement, which he had intended to

deliver this morning, and which I would now like to present to the

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committee, but I would like to have the record reflect that it is a

statement from both the Secretary and myself.

Also, I have with me General Counsel of the Department of Defense, Jim Haynes, who, unlike myself, is a lawyer and can answer

some of your questions much better than I will be able to.

Mr. Chairman, on September 11, Americans found their Nation

under attack. Terrorist hijacked civilian airliners, turned them into

missiles, and used them to kill thousands of innocent Americans—

men, women, and children—as well as people from dozens of nations.

Today, 3 months after the attack, the ruins of the World Trade

Towers are still burning, and bodies are still being pulled from the

wreckage. Over the weekend, the remains of 20 more were recovered—5 firefighters, 2 policemen, and a group that had been

trapped in a stairwell as they tried to escape the collapsing tower.

Their families will now be able to bury them, but many hundreds

of families who lost loved ones—mothers and father, husbands and

wives, sisters and brothers, sons and daughters—still have not

been able to bury their dead and possibly never will.

It is still difficult to fathom the enormity of what happened on

September 11. As time passes and the fires finally burn out, Americans will eventually recover from the shock and horror of what befell our Nation that day. But those who are responsible for our national defense must not lose sight of the fact that these are not normal times. We have been attacked. We are at war. We must take

the steps necessary to defend out people and to protect them from

further harm.

The September 11 attacks were acts of war. The people who

planned and carried out these attacks are not common criminals.

They are foreign aggressors, vicious enemies whose goal was and

remains to kill as many innocent Americans as possible. Let there

be no doubt, they will strike again unless we are able to stop them.

We have no greater responsibility as a Nation than to stop these

terrorists, to find them, to root them out, and to prevent them from

murdering more of our citizens.

To accomplish that objective, the President is marshaling every

tool at his disposal—military, diplomatic, financial, economic. He is

working to freeze the assets of terrorist leaders and organizations

that sponsor and finance terror. He is working with foreign governments to shut down the terrorist networks that operate in dozens

of countries across the world. He has sent brave Americans to Afghanistan—courageous soldiers, sailors, airmen, and marines—who

at this moment are risking their lives to stop the al Qaeda terrorist

network and the Taliban that seek to kill our people.

This is not a law-enforcement action. It is war. We seek to destroy or defeat our terrorist enemies so they cannot harm Americans. When coalition forces storm the Taliban compound or an al

Qaeda safe-house, they cannot ask for a search warrant. When

they confront Taliban or al Qaeda fighters in the caves and shadows where they hide, they are in combat. Their objective is to stop

the terrorists and prevent them from continuing to threaten our

country.

The U.S. military is doing this in Afghanistan, and they are

doing it extremely well. But the terrorists who threaten us are not

11

only in Afghanistan. They operate in dozens of countries, including

the United States. They are unlawful belligerents, adversaries who

attacked our Nation in contravention of the rules of war, and the

President has made it clear that we will hunt them down wherever

they hide.

When enemy forces are captured, wherever they are captured,

they must then be dealt with. There a number of tools at the country’s disposal for doing so. One of those tools is the establishment

of the Military War Crimes Commission. The President, as Commander in Chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commission. As

yet, he has not designated anyone to be tried by such a commission. He may do so. He may not.

To prepare for the possibility that he may do so, the Department

of Defense is developing appropriate procedures for such commissions. We are in the process of developing those procedures. We are

consulting a wide variety of individuals and experts inside and outside of government to discuss how such commissions should operate

and how they have operated in the past. We are working to establish rules of procedure that will ensure, in the event that the President decides to designate a non-U.S. citizen to be tried by a military commission—and I would underscore that he has not yet designated anyone to be tried in this manner, and that it would only

apply to non-U.S. citizens—but should he decide to designate a

non-U.S. citizen to be tried by a military commission, it will be

handled in a measured, balanced, and thoughtful way that reflects

our country’s values.

Military commissions have been used in times of war since the

founding of this Nation. George Washington used them during the

Revolutionary War. Abraham Lincoln used them during the Civil

War. President Franklin Roosevelt used them during World War II.

During and following World War II, we did not bring German and

Japanese war criminals to the United States for trial in civilian

courts. We tried them by military commissions. In Germany, we

prosecuted 1,672 individuals for war crimes before U.S. military

commissions. Convictions were obtained in 1,416 cases. In Japan,

we tried 996 suspected war criminals before military commissions,

of which 856 were convicted.

These conviction rates, you will note, are not out of line with normal non-military commission outcomes. Indeed, they are lower

than the felony conviction rate in the U.S. Federal courts last year.

When eight Nazi saboteurs landed on our coast in 1942, with the

intention and purpose of destroying American industrial facilities,

they were tried by military commission. Indeed, in that case, the

Supreme Court upheld the constitutionality of military commissions. In the case of Ex parte Quirin, the court ruled unanimously,

in an eight-to-zero decision, that the trial of the Nazi saboteurs by

a military commission without a jury was indeed constitutional, declaring, in the court’s words, ‘‘unlawful combatants...are subject to

punishment by military tribunals for acts which render their belligerency unlawful.’’

Further, the U.S. Congress also recognized the use of military

commissions after World War II, when it passed the Uniform Code

of Military Justice in 1950. It included statutory language preservVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
12

ing the jurisdiction of military commissions. So all three branches

of the U.S. Government have endorsed the use of military commissions.

Mr. Chairman, our ability to bring justice to foreign terrorists is

critical to our ability to defend the country against future terrorist

threats. Moreover, it is well established that a foreign national who

is engaged in armed conflict against the United States has no constitutional claim to the rights and procedures that would apply to

a domestic criminal prosecution.

Furthermore, there are a number of compelling reasons for using

military commissions instead of civilian courts to try unlawful belligerents in times of war. First, by using military commissions, we

can better protect civilian judges, jurors, and courts from terrorist

threats and assure the security of the trial itself. Because of the

ongoing threat from terrorists, the risks to jurors are of a kind that

military officers are trained and prepared to confront, but that are

not normally imposed on jurors in civilian trials. Indeed, the judge

who handled the trial for the first World Trade Center attack, the

1993 attack, is still under 24-hour protection by Federal marshals

and probably will be for the rest of his life.

It is also important to avoid the risk of terrorist incidents, reprisals, or hostage-takings during an extended civilian trial. Moreover,

appeals or petitions for habeas corpus could extend the process for

years. Military commissions would permit speedy, secure, fair, and

flexible proceedings in a variety of locations that would make it

possible to minimize these risks.

Second, Federal rules of evidence often prevent the introduction

of valid factual evidence for public-policy reasons that have no application in a trial of a foreign terrorist. By contrast, military tribunals can permit more inclusive rules of evidence, flexibility which

could be critical in wartime when it may be difficult, for example,

to establish chains of custody for documents or to locate witnesses.

Military commissions allow those judging the case to hear all probative evidence, including evidence obtained under conditions of

war, evidence that could be critical to obtaining a conviction.

Third, military commissions can allow the use of classified information without endangering sources and methods. This point is

critical. During the course of a civilian trial, prosecutors could be

faced with a situation where in order to secure a conviction, they

would have to use classified information that would expose how the

U.S. monitors terrorist activities and communications. They could

be forced to allow terrorists to go free or to offer them lighter sentences in order to protect a source that is critical to our national

security.

Do we really want to be in the position of choosing between a

successful prosecution of an al Qaeda terrorist or revealing intelligence information, which, if exposed, could reduce our ability to

stop the next terrorist attack, at a cost of thousands more American lives? A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan while at the same time ensuring a

full and fair trial for any individuals that might be designated by

the President.

13

Again, Mr. Chairman, the President has not designated anyone,

so far, to be tried by military commission, and we have not yet concluded or issued regulations or established rules of procedure, but

we are at war with an enemy that has flagrantly violated the rules

of war. They do not wear uniforms. They hide in caves abroad and

among us here at home. They target civilians—innocent men,

women and children of all races and religions—and they intend to

attack us again, let there be no doubt. They are not common criminals. They are war criminals. We must, and we will, defend this

country from them.

Military tribunals are one of many instruments we may use to

do so. We are confident that we will develop a process that Americans will have confidence in and which is fully consistent with the

principles of justice and fairness our country is known for throughout the world. We have a reputation as a Nation for dealing fairly

in these kinds of matters, and we will do so in this case. We will

bring justice to the terrorists and ensure that the American people

can once again live their lives in freedom and without fear.

Mr. Chairman, I believe this hearing and the views of this committee can be an important contribution to making sure that we

achieve those goals, and we appreciate the opportunity to testify

before you. Thank you.

[The prepared joint statement of Secretary Rumsfeld and Deputy

Secretary Wolfowitz follows:]

PREPARED JOINT STATEMENT BY DONALD H. RUMSFELD AND PAUL WOLFOWITZ

Mr. Chairman, Members of the Committee, good morning.

On September 11, Americans found their Nation under attack. Terrorists hijacked

civilian airliners, turned them into missiles, and used them to kill thousands of innocent Americans—men, women, and children—as well as people from dozens of nations.

Today, 3 months after the attack, the ruins of the World Trade Towers are still

burning—and bodies are still being pulled from the wreckage. Over the weekend,

the remains of 20 more were recovered—5 firefighters, 2 policemen, and a group

that had been trapped in a stairwell as they tried to escape the collapsing tower.

Their families will now be able to bury them. But many hundreds of families who

lost loved ones—mothers and fathers, husbands and wives, sisters and brothers,

sons and daughters—still have not been able to bury their dead . . . and possibly

never will.

It is still difficult to fathom the enormity of what happened on September 11. As

time passes, and the fires finally burn out, Americans will eventually recover from

the shock and horror of what befell our Nation that day.

But those who are responsible for our national defense must not lose sight of the

fact that these are not normal times. We have been attacked. We are at war. We

must take the steps necessary to defend our people, and protect them from further

harm.

The September 11 attacks were acts of war. The people who planned and carried

out these attacks are not common criminals—they are foreign aggressors, vicious

enemies whose goal was, and remains, to kill as many innocent Americans as possible.

Let there be no doubt: they will strike again, unless we are able to stop them.

We have no greater responsibility as a Nation, than to stop these terrorists—to

find them, root them out, and prevent them from murdering more of our citizens.

To accomplish that objective, the President is marshalling every tool at his disposal—military, diplomatic, financial, economic. He is working to freeze the assets

of terrorist leaders and organizations that sponsor and finance terror. He is working

with foreign governments to shut down the terrorist networks that operate in dozens of countries across the world. He has sent brave Americans to Afghanistan-courageous soldiers, sailors, airmen and marines, who at this moment are risking their

lives to stop the al Qaeda terrorist network and the Taliban that seek to kill our

people.

14

This is not a law enforcement action. It is war. We seek to defeat or destroy our

terrorist enemies, so that they cannot harm Americans. When coalition forces storm

a Taliban compound or an al Qaeda safe house, they cannot first ask for a search

warrant. When they confront Taliban or al Qaeda fighters in the caves and shadows

where they hide, they are in combat. Their objective is to stop the terrorists and

prevent them from continuing to threaten our country.

The U.S. military is doing this in Afghanistan—and they are doing it extremely

well. But the terrorists who threaten us are not only in Afghanistan. They operate

in dozens of countries—including the United States. They are, and remain, unlawful

belligerents, adversaries who attacked our Nation in contravention of the rules of

war. The President has made it clear that we will hunt them down wherever they

hide.

When enemy forces are captured, wherever they are captured, they must then be

dealt with. There are a number of tools at the country’s disposal for doing so. One

of those tools is the establishment of military war crimes commissions.

The president, as commander in chief, has issued a military order that would permit individual non-U.S. citizens to be tried by military commission. As yet, he has

not designated anyone to be tried by such a commission. He may do so; he may not.

To prepare for the possibility that he may do so, the Department of Defense is

developing appropriate procedures for such commissions.

We are in the process of developing these procedures. We are consulting a variety

of individuals and experts, in and out of government, to discuss how such commissions should operate, and how they have operated in the past. We are working to

establish rules of procedure that will ensure, in the event the President decides to

designate a non-U.S. citizen to be tried by a military commission, that it is handled

in a measured, balanced, thoughtful way that reflects our country’s values.

Military commissions have been used in times of war since the Founding of this

Nation. George Washington used them during the Revolutionary War; They were

used during the Civil War; President Franklin Roosevelt used them during World

War II.

During and following World War II, we didn’t bring German and Japanese war

criminals to the U.S. for trial in civilian courts. We tried them by military commissions. In Germany, we prosecuted 1,672 individuals for war crimes before U.S. military commissions. Convictions were obtained in 1,416 cases. In Japan, we tried 996

suspected war criminals before military commissions—of which 856 were convicted.

These conviction rates are not out of line with normal, non-military commission outcomes—indeed, they are lower than the felony conviction rate in the U.S. Federal

courts last year.

When eight Nazi saboteurs landed on our coast in 1942, with the intention of destroying American industrial facilities, they were tried by military commissions.

Indeed in that case, the Supreme Court upheld the constitutionality of military

commissions. In Ex parte Quirin, the Court ruled unanimously—in an 8–0 decision—that the trial of the Nazi saboteurs by a military commission, without a jury,

was indeed constitutional, declaring ‘‘unlawful combatants are subject to punishment by military tribunals for acts which render their belligerency unlawful.’’

Further, the U.S. Congress also recognized the use of military commissions, after

World War II, when it passed the Uniform Code of Military Justice in 1950, which

included statutory language preserving the jurisdiction of military commissions. So

all three branches of the U.S. Government have endorsed the use of military commissions.

Our ability to bring justice to foreign terrorists is critical to our ability to defend

the country against future terrorist threats. Moreover, it is well established that a

foreign national who is engaged in armed conflict against the United States has no

constitutional claim to the rights and procedures that would apply to a domestic

criminal prosecution. Furthermore, there are a number of compelling reasons for

using military commissions instead of civilian courts to try unlawful belligerents in

times of war.

First, by using military commissions, we can better protect civilian judges, jurors

and courts from terrorist threats and assure the security of the trial itself.

Because of the ongoing threat from terrorists, the risks to jurors are of a kind

that military officers are trained and prepared to confront but that are not normally

imposed on jurors in civilian trials. Indeed, the judge who handled the trial for the

first World Trade Center attack is still under 24 hour protection by Federal marshals—and probably will be for the rest of his life.

It is also important to avoid the risk of terrorist incidents, reprisals or hostage

takings during an extended civilian trial. Moreover, appeals or petitions for habeas

corpus could extend the process for years. Military commissions would permit

15

speedy, secure, fair and flexible proceedings, in a variety of locations, that would

make it possible to minimize these risks.

Second, Federal rules of evidence often prevent the introduction of valid factual

evidence for public policy reasons that have no application in a trial of a foreign

terrorist. By contrast, military tribunals can permit more inclusive rules of evidence—a flexibility which could be critical in wartime, when it is often difficult, for

example, to establish chains of custody for documents or to locate witnesses. Military commissions allow those judging the case to hear all probative evidence—including evidence obtained under conditions of war—that could be critical to obtaining a conviction.

Third, military commissions can allow the use of classified information without

endangering sources and methods. This point is critical. During the course of a civilian trial, prosecutors could be faced with a situation where, in order to secure a conviction, they would have to use classified information that would expose how the

U.S. monitors terrorist activities and communications. They could be forced to allow

terrorists to go free, or offer them lighter sentences, in order to protect a source that

is critical to our national security.

Do we really want to be in the position of choosing between a successful prosecution of an al Qaeda terrorist, and revealing intelligence information that, if exposed,

could reduce our ability to stop the next terrorist attack—at a cost of thousands

more American lives?

A military commission can permit us to avoid this dilemma. We can protect national security, including ongoing military operations in Afghanistan, while at the

same time ensuring a full and fair trial for any individuals designated by the President.

Again, Mr. Chairman, the President has not designated anyone to be tried by

military commission, and we have not yet issued regulations or established rules of

procedure.

But we are at war with an enemy that has flagrantly violated the laws of war.

They do not wear uniforms. They hide in caves abroad, and among us here at home.

They target civilians-innocent men, women and children of all races and religions.

They intend to attack us again. Let there be no doubt.

They are not common criminals—they are war criminals. We must—and we will—

defend this country from them.

Military tribunals are one of many instruments we may use to do so. We are confident that we will develop a process that Americans will have confidence in, and

which is fully consistent with the principles of justice and fairness our country is

known for throughout the world. We have the reputation as a Nation for dealing

fairly in these kinds of matters—and we will do so in this case. We will bring justice

to the terrorists, and ensure that the American people can once again live their lives

in freedom and without fear.

Thank you.

Chairman LEVIN. Secretary Wolfowitz, thank you. Mr. Haynes,

do you have an additional statement?

STATEMENT OF HON. WILLIAM J. HAYNES II, GENERAL

COUNSEL, DEPARTMENT OF DEFENSE

Mr. HAYNES. Just a brief one, Mr. Chairman. Chairman Levin,

Senator Warner, it is a pleasure to be here again before your committee.

The President’s military order to the Secretary of Defense is as

serious as any the President gives as Commander in Chief. The

Secretary is determined to be deliberate and careful in implementing the order. He has asked me to assist him in framing the issues,

surfacing the relative weights of the different considerations that

would go into it. He has asked me to work with others to help

bring those very important issues, many of which you highlighted

in your opening statement, to his attention for his decision.

That is a principal reason for me to be here today, and I’m

pleased to be back.

Chairman LEVIN. Thank you both for your opening statements.

They are very helpful, indeed.

16

Senator WARNER. Mr. Chairman, I want to congratulate the Deputy Secretary speaking on behalf of the President and the Secretary of Defense for an excellent, fair, and balanced presentation.

The bottom line is the American people trust our President, and

the question now—is Congress going to trust our President to go

forward, exercising his constitutional authority with input from

Congress, not to write the regulations, but will you receive the recommendations that we wish to make and take them into consideration? Thank you.

Chairman LEVIN. We’ll have 8-minute rounds, as I mentioned.

We will proceed with the usual early bird approach.

Secretary Wolfowitz, when the Attorney General testified last

week before the Senate Judiciary Committee, while, on the whole,

he referred most of the details to the Department of Defense on

some specific issues, he made statements that I’d like to ask you

about and see whether or not you’re in agreement with him.

The Attorney General was asked, since the order gives the President or the Secretary of Defense authority to make the final decision, whether or not that means the Secretary of Defense or the

President could reverse an acquittal of somebody who is charged

with a crime, because by the terms of the order, it could be read

that way. The Attorney General said he’s confident that was not

the intention of the order, and I’m wondering whether you agree

with him.

Secretary WOLFOWITZ. It was not the intention of the order.

Chairman LEVIN. Thank you. The Attorney General was asked

whether he believed that there should be appellate procedures

under the order, other than the President and the Secretary of Defense—in other words, appellate procedures by an outside third

party—because the order of the President appears to preclude that.

The Attorney General said that he believes the Department of Defense, ‘‘has the authority to develop appellate procedures under the

order’’. I’m wondering whether you agree that you have the authority to establish appellate procedures outside of the chain of command—in other words, outside of the Secretary and the President?

Secretary WOLFOWITZ. Mr. Chairman, I’m going to ask the General Counsel to address the issue of authority, but I believe that

it’s worth emphasizing very, very strongly here that we are proceeding very deliberately. It is nearly a month now since the President issued that order and, as I believe everyone has observed, he

has not yet chosen to designate anyone for trial by these commissions. We are still working on the procedures. We are listening

very carefully to a very wide range of views and some very distinguished outsiders, and I won’t try to mention everyone, but to give

you a sense of——

Chairman LEVIN. I wonder, though, whether you could just address the question, because we’re limited in time.

Secretary WOLFOWITZ. OK.

Chairman LEVIN. Do you agree with the Attorney General

that——

Secretary WOLFOWITZ. I believe we have the authority.

Chairman LEVIN. Pardon. I’m sorry. You do or do not?

Secretary WOLFOWITZ. I believe we do.

17

Mr. HAYNES. Mr. Chairman, the President’s order specifically

does provide for at least some review, because the President reserves the right to review the decision of the tribunal or designates

the Secretary of Defense to do so. The order also provides that the

record of the proceedings will be reviewed. So another form of that

could be in the implementation of that aspect of the President’s

military order.

If I may go back to the first question that you had about reversal

of acquittals, the question, as stated, supposes a particular form of

decision-making by the Military War Crimes Tribunal. So the actual procedure for reviewing decisions of the commission is not yet

formed.

Chairman LEVIN. I understand that, but I’m wondering whether

you agree with the Attorney General that the Department does

have authority to develop appellate procedures under the order,

outside of the review by the Secretary of Defense and the President? Have you resolved that issue yet?

Mr. HAYNES. We have not resolved the particular form, but the—

go ahead.

Chairman LEVIN. The Attorney General told the Judiciary Committee that the tribunals would be subject to habeas corpus review

to the same extent as in the Quirin case, that being for review of

the constitutionality of the tribunal and whether the defendants

were legally subject to the tribunal. But the President’s order itself

is very explicit. It says that the individual charged ‘‘shall not be

privileged to seek any remedy or maintain any proceeding directly

or indirectly or have any such remedy or proceeding sought on the

individual’s behalf in any court of the United States or any state

thereof.’’

There seems to be a direct inconsistency here as to whether or

not there is habeas corpus review provided, between what the Attorney General said what I believe the Counsel for the President

said, and between the order itself.

So my question is, do you agree with the Attorney General? Is

the Attorney General right? Or does the order govern the question

of habeas corpus review?

Mr. HAYNES. I agree with the Attorney General. The actual order

from the President is identical, in that respect, to President’s Roosevelt’s order. The Supreme Court, in that case, determined that it

had jurisdiction to review the case under those circumstances, and

there’s no intention to change that in this case.

Chairman LEVIN. Alright, thank you.

The Attorney General was asked whether or not only war crimes

would be tried by the tribunal, because the order states that the

jurisdiction of the tribunals go beyond war crimes, in the words of

the order, to ‘‘other applicable laws.’’ Just to read a little bit more

context, ‘‘that individuals that are detained, when tried, will be

tried for violations of the laws of war and other applicable laws.’’

But the Attorney General said that only war crimes would be tried

by the tribunals, and I’m wondering whether you agree with the

Attorney General.

Mr. HAYNES. It’s my understanding that the President intends to

use this tool, if he does do it, consistent with the tradition of the

18

use of military commissions, which traditionally has been to try

war crimes under the common law of war.

Chairman LEVIN. Only war crimes.

Mr. HAYNES. That’s my understanding. Yes, sir.

Chairman LEVIN. Let me go over with you now some of the possible elements of a full and fair hearing. I’d like to just hear from

you whether or not you think these elements are part of a full and

fair hearing. First, the presumption of innocence. Will there be a

presumption of innocence?

Mr. HAYNES. Senator Levin, the Secretary has not made decisions about the individual aspects of the proceedings. There will be

some basic procedures that will have to be balanced in context of

all the other proceedings. Those elements of due process that are

in accordance with the tradition of the use of military commissions

will be considered and ultimately decided by the Secretary of Defense.

Chairman LEVIN. In other words, there is still a question as to

whether or not, for instance, there’s a right to counsel or there’s a

presumption of innocence, or being informed of the charges against

you—are those still unresolved questions?

Mr. HAYNES. Well, no, sir. The President’s order says that there

shall be a full and fair trial. It clearly says that the accused will

have counsel. What is a full and fair trial may involve a number

of different issues. But clearly, that is a direct order from the President, and I’m confident that there will be one.

Chairman LEVIN. But I’m trying to conclude by finding out

whether or not there’s some question as to whether or not, for instance, the presumption of innocence or the right to cross examine

witnesses or being informed of the charges against you in a language that you understand—whether or not there’s still a question

as to whether or not those are guaranteed by the full and fair trial

requirement. Is there still a question about those kinds of fundamental issues?

Mr. HAYNES. Until the Secretary makes a decision about the entire bundle of procedures that will be applied, there will be—I

would like to reserve the form of that, as opposed to answering specific questions about specific aspects.

Chairman LEVIN. Thank you. Senator Warner.

Senator WARNER. Thank you. Mr. Chairman, I think we should

make it clear that on the announcement by the President of his intention to exercise his power under the Constitution to establish

these tribunals, you and I discussed the advisability of this hearing

and jointly decided that it was definitely a responsibility of this

committee, and here we are today. But in the interim, we consulted

with Secretary Rumsfeld as well as the Deputy Secretary and others, and the Department of Defense made it eminently clear to the

committee that they were in the formative stages of compiling the

sets of regulations. Although we’re going ahead with the hearing

today, we understand we may receive somewhat inconclusive responses at this time.

So I appreciate that, and I understand that, and we must accept

the fact that you’re midway through the process, and that this committee will eventually have another hearing at which time we’ll get

19

more specific details about what you intend to put into the regulations.

So, therefore, I want to spend some time on procedure as to how

you’re going about this task given by the President to the Secretary

of Defense.

Consultation. We’re having our hearing of this committee. The

Judiciary Committee of the Senate has had its hearing. Are there

other means by which you intend to consult Congress? I presume,

although it was directly in your statement, that you will take into

consideration the recommendations, not only of the committees of

jurisdictions in Congress, this and the Judiciary Committee, but individual members. By what process do you hope to achieve that?

Because I think it’s important that all 100 members of the Senate

feel they’ve had a voice, if they so desire to exercise it, in the formulation of these regulations.

Secretary WOLFOWITZ. The Secretary has made it clear from the

time he was assigned this responsibility that he wanted to proceed

very deliberately and very carefully in thinking through all of these

issues. He is not a lawyer, but he is determined to get all the best

possible range of views that he can.

As I indicated earlier, we’re consulting with a wide range of individuals inside and outside the government. We are consulting in a

more institutional way with the other branches of government that

have views, including the Department of Justice and the Department of State. We welcome the views of the Senate and the House,

either institutionally or individually.

Our principal mechanism for getting these views is our General

Counsel. I’ll let Mr. Haynes speak to that in just a moment. The

procedure really is to try to identify all of the issues, including the

ones that Senator Levin just raised, to try to get a sense of what

the range of recommendations would be, what the range of precedents would be, and, ultimately, to come to some conclusion.

Mr. HAYNES. I’d like to echo the Deputy Secretary’s comments.

I’d point out that the President issued his order almost a month

ago, November 13. In that period, the Judiciary Committee has had

four hearings, as I understand it. We’ve had a number of conversations with individual members of Congress and I solicit your views

on a continuing basis.

You can be sure that the views expressed directly and in hearings are being absorbed, factored in, considered, and are deeply appreciated.

Senator WARNER. I think it’s important that that point be made

in today’s record. I’ve had the opportunity to consult with both of

you several times on this, and I want other members of Congress

to have the chance to do so as well. This is a very important

threshold in the contemporary history of this country, and we want

to see this carried out with the proper exercise of the Constitutional authority of the President, as well as Congress.

Now, let’s turn to the Department of Justice. It might well be in

the course of these procedures that lawyers who are defending or

otherwise interested in the tribunals will go the Department of

Justice and perhaps institute proceedings in the Federal court system challenging certain aspects of the tribunal process. Therefore,

it seems to me that we should have greater clarification today on

20

the degree to which the Attorney General and his colleagues are

being consulted on this, because they may well be the ones in the

Federal system to meet the challenges to the tribunal system in the

Federal courts.

Mr. HAYNES. Senator, we have had some informal discussions

with the Department of Justice and intend to consult them on an

ongoing basis.

Senator WARNER. Why do you rest on the word ‘‘informal’’? I

mean, how do you distinguish between formal and informal? Is it

a casual call, or are you saying, ‘‘Now, Mr. Attorney General, this

is what we have?’’ Are you going to submit your regulations to him

before making them public? He’s the President’s chief law enforcement officer.

Now, I don’t suggest in any way that there be an infringement

on the right of the Secretary of Defense to conduct these tribunals

on behalf of the President, but I think it’s important that it be

more than just informal conversation, that we should have some

formality to this process with the Justice Department.

Mr. HAYNES. Senator, I did not mean to preclude that. What I

will elaborate on at this time is to tell you a little bit about the

process that we are employing.

This is a military order. The Secretary is charged with implementing it. What we are doing within the Department is—in short,

I have convened a panel of the senior lawyers in the Department,

including those who are charged with administering the military

justice system, which, as Senator Levin points out, in its usual

form is very different from a military commission. Nevertheless,

they have very important views and experiences and institutional

records and understandings to draw on in order to surface and consider carefully the issues that Senator Levin raised as well as some

other issues, in order to ensure that we get an appropriate cast to

this implementation, as opposed to recreating the Article III process. That is not the intention of the President to do.

When I said ‘‘informal consultations’’ with the Department of

Justice, there will be more. Certainly the Department of Justice

has a deep well of expertise on which to draw. They will, of course,

be those charged with defending the procedures if and when they

are challenged by any——

Senator WARNER. Whether you call it formal or informal you’re

going to submit to the Department of Justice the full final set of

regulations for their review?

Mr. HAYNES. Yes, sir. We——

Senator WARNER. Am I correct in that? I’ve been around here a

little while in this government. I have seen friction between the departments of the government, and that works against the best interests of our President. We don’t want that to arise in this instance.

Last, I think it very wise that you have consulted with a series

of outside experts. You’ve shared with me some details on that.

Let’s make it clear that you just haven’t gone to Republicans because this is a Republican administration. It’s across the board. It

hasn’t got a thing to do with politics, in my judgment. You have

sought out and are receiving the advice and counsel of a wide

range of very well recognized and respected former jurists, practicVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
21

ing lawyers, professors, and the like. I’d just like to have that on

the record, Mr. Secretary.

Secretary WOLFOWITZ. Absolutely clear, Senator. I mean, we

were consulting a wide range of people, and I don’t want, by mentioning names, to suggest that these are the only people we’re talking to, but just to give you some idea of the caliber of people that

the Secretary has met with or that he’s had General Counsel meet

with, people like former Secretary of Transportation Bill Coleman,

former White House General Counsel Lloyd Cutler, a Democrat,

former Attorney General Griffin Bell, former FBI Director. Judge

William Webster and Professor Lee Meltzer have been consulted.

It’s people of that caliber, and it’s, I think, representative of a very

wide range of political opinion.

Senator WARNER. I thank you, Mr. Secretary. I was hopeful that

you would put that out to show politics is playing no role whatsoever as we formulate these regulations.

Thank you, Mr. Chairman.

Chairman LEVIN. Thank you very much, Senator Warner. I’m

now going to call on Senator Kennedy. There’s a vote on. Many of

us are going to want to go and vote and come back. The list of the

order of recognition is here. I won’t read everybody, but Senator

Inhofe, you would be next, but you have to vote, so I’m not sure

whether you want to try to do that. But I’m going to turn this now

to Senator Kennedy. If you are here when he’s done with his 8-

minute round, you would be next. If not, when you get back, you

should then be recognized.

Senator INHOFE. Mr. Chairman, I’m going to stay, and I’ll be

here.

Senator KENNEDY. Thank you, Mr. Chairman. Thank you, Mr.

Secretary and Mr. Haynes, for the indication that you’re open to

getting some input as you’re working forward in developing this

process. I mean, I think it’s something that we should try and engage with you on.

Let me go first to one of the areas that I’m concerned about, and

that’s how other countries will see military tribunals and whether

they will look at this as a double standard by the United States.

Over the years, our government has actively supported the rule

of law internationally. We’ve consistently opposed military tribunals in other nations because of their failure to provide the adequate due process. The Department of State’s most recent human

rights report last February said the following about the use of military courts in Peru: In the case of Laurie Berenson, an American

who was tried for terrorism by a secret military tribunal, ‘‘Proceedings in these military courts do not meet internationally accepted

standards, openness, fairness, due process.’’ It said that Ms.

Berenson, in particular, did not receive sufficient guarantees of due

process.

This is the criticism that the United States has made about tribunals. We’ve done that in recent years with Burma, China, Colombia, Egypt, Malaysia, Nigeria, Peru, Russia, the Sudan, Turkey—

the list goes on and on. Given the broad scope of the initial military

order, even if its narrowed now, isn’t there a danger that it’ll allow

countries to justify secret military tribunals and avoid even the

basic due process safeguards? I mean, what is the administration

22

doing to see that America’s credibility in criticizing the secret military tribunals in other countries will not be undermined by the

military order?

Secretary WOLFOWITZ. Senator, I think that’s one of the reasons

why we want to work out, very carefully, the kinds of procedures

that will make the judgments of any military tribunal, any military

commission that we establish meet a full standard of fairness. We

have criticized, for example, the tribunals in Peru for violations of

fundamental principles of due process. If we have to judge individuals before a U.S. military tribunal, I think we will be setting a

standard by which other countries will have to be judged, and I

think that will reinforce our case in objecting to the kinds of abuses

that you refer to.

Senator KENNEDY. I think that’s right. I think the concern is now

with the full and fair hearing, whether we’ve already opened the

door to other countries. Obviously, they’ll be influenced by the final

recommendations, but has the State Department been involved in

the initial declaration or statement about the tribunals themselves?

Have they had any input? Has Secretary Powell expressed any

views that you know?

Secretary WOLFOWITZ. We are consulting with them also and are

clearly interested in their views. The point that Chairman Levin

made, that how these tribunals are viewed by other countries may

affect their willingness to turn individuals over to us, makes this,

among other reasons, a matter of international significance.

Senator KENNEDY. The chairman mentioned some of these protections, but I want to just come back to them, because I do think

they define whether these are going to meet our standards: adequate due process; the presumption of innocence; proof beyond a

reasonable doubt; representation by independent and effective

counsel; the right to examine and challenge evidence offered by the

prosecution; the right to present evidence of innocence; right to

cross-examine adverse witnesses and to offer witnesses; reasonable

rules of evidence; and the appellate review of convictions.

Now, these protections are instituted in our standard of justice,

because they help identify the guilty and also protect the innocent.

They are not luxuries. They are essential aspects of our whole process of justice. I’m just interested in what you might be able to say

or you can’t say at this time and when you’ll be able to tell us

which ones will be in and which ones will be out, in terms of the

order.

This is against a background, a statement, where Secretary

Rumsfeld a few weeks ago indicated that the procedures may very

well be established on the basis of who the individual is and who

might actually be tried. I’m interested in coming back to these

items, and hearing from you when we will know whether these

kinds of protections will be included in the order or whether they

will not be and when we might know that.

Mr. HAYNES. Senator, neither the President nor the Secretary

has indicated a deadline for when he or they want these rules to

be put into effect. But let me just make one observation about your

list, which is an important one. As you might imagine, and I’m

sure you know, the method by which any one of those principles

might be implemented can vary. One of the reasons that the PresiVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
23

dent chose to create this option for himself, this additional tool in

the war on terrorism, is to recognize that this is an extraordinarily

different risk than we normally take and to recognize that, in a

war, law enforcement is not the principal aim. It’s winning the

war. Now, that doesn’t mean it comes at the expense of fairness or

of the American ideals or principles of justice. It doesn’t come at

that expense.

But take the rules of evidence, for example. What the Secretary

of Defense will do, and what the President has already done, is

maximize the ability to find the truth. The standard of evidence

spelled out in the President’s military order is to admit that evidence which is probative to a reasonable person. That is different——

Senator KENNEDY. I don’t want to interrupt you here, but there’s

another area that seems to be fairly subjective. My own sense is

these are not luxuries which we sort of tolerate when times are

good. They are essential aspects of a due-process system and we

want to try and we will—I hear your answer that you’re not prepared to make these recommendations now, but they will be forthcoming. Obviously, they’ll have to before the military tribunals are

established.

I’d like to get to what I addressed in my opening comment about

the decision to try Zacarias Moussaoui in the Federal district court.

Secretary Wolfowitz, if you’d be good enough to tell us, what were

the considerations in making the decision to proceed in the Federal

court as opposed to a military tribunal?

Secretary WOLFOWITZ. Senator, to the best of my knowledge, that

was a decision made by the Justice Department.

Senator KENNEDY. You weren’t involved in this?

Secretary WOLFOWITZ. I was not, personally. I don’t believe we

were as a Department, either, were we?

Mr. HAYNES. No, we were not involved.

Senator KENNEDY. Do you have a view, Mr. Secretary, on that?

Secretary WOLFOWITZ. No, I don’t. They obviously have the evidence that they believe gives them a case for going to trial, and I’m

not aware—I would have to know the details to have a view.

Senator KENNEDY. My time is up.

Senator INHOFE. Thank you, Mr. Chairman. I think some of the

rest of them may be back, and I’m not going to take all of my time

because we do have a vote that’s on. Let me just ask Mr. Haynes

something that was alluded to briefly by Secretary Wolfowitz.

During the Judiciary Committee hearing, when Attorney General

Ashcroft was asked some questions, he said, not only will the U.S.

Supreme Court review whatever’s been done, but he believes that

the issue resolved in the court’s 1942 decision—referring to that decision where the eight suspected German saboteurs were brought

to justice, six of them executed—the question I have would be a

legal question. Legally speaking, between the court’s decision during a declared state of war in 1942 and its application to our current war on terrorism, is there a legal distinction or difference?

Mr. HAYNES. I do not believe that there is a difference that matters here. We are clearly in a state of war, and we are very confident that the President’s orders——

24

Senator INHOFE. Alright, let me ask another question to either

one of you. I’ve been concerned about one thing. We know that

many people will be arrested in conjunction with September 11 by

governments of foreign countries. When that happens, we are concerned about extradition. We’re concerned about getting them over

here. I know there is a concern that some of these countries—I believe it was Spain where they apprehended some individuals—

they’re reluctant to extradite to this country because of the system

of justice they believe we might be using. Is there some kind of a

legislative fix, Secretary Wolfowitz, that could make them less reluctant to allow them to come back here for justice?

Secretary WOLFOWITZ. Senator, I think the principal issue that

we’re going to have with those countries, as we have with Spain,

is over the issue of the death penalty. I think in every one of these

cases, if there’s an issue, we’ll have to negotiate. The President is

not required to submit anyone to a military tribunal. If that were

to become an obstacle to extraditing somebody that was important

to us, I’m sure that would be something he would take into account. I think—my feeling would be it’s much better to leave him

the flexibility than to try and——

Senator INHOFE. That flexibility should encourage them to allow

us to have access to those witnesses. At least I hope that’s the case.

Secretary WOLFOWITZ. I would hope so. It seems to me, given the

horror of what took place on September 11, that they—let’s forget

about military tribunals—that they owe the—if someone’s going to

be tried by an American civil court, it is for something—it seems

to me, we are fully entitled to have custody of them.

Senator INHOFE. Let me just share a personal experience with

you. I almost didn’t come today, Mr. Secretary, because I’ve already

made up my mind. I did so a long time ago. But many years ago,

when I was in the United States Army, I was a lowly clerk in the

military courts.

As this discussion has come forward and all these concerns about

beyond reasonable doubt, presumption of innocence, the two-thirds

versus unanimity, in terms of the death penalty, the rights and

protections of these terrorists—I’m having a very hard time with

that, because I remember so vividly sitting in the courtrooms of

military justice many years ago as an Army clerk looked into the

faces of these men and women, our military people, who were

brought to justice. I don’t recall one time, not one time, during that

time that I spent in those military courts, hearing or remembering,

recalling any soldiers who were being administered justice at that

time complaining about the system of justice that they were receiving.

I have very strong feelings that if that system of justice was good

enough for our own troops, as it’s good enough for our own troops

today, it’s ludicrous to believe that that system is not good enough

for a terrorist. So I have no problem with it, and I come with that

prejudice from my past experience in the military courts. I hope

we’ll be able to get on with it.

I guess I’m the chairman, so I’ll yield to Senator Allard.

Senator ALLARD. Thank you for yielding. I would ask that my full

statement be made a part of the record.

[The prepared statement by of Senator Allard follows:]

25

PREPARED STATEMENT BY SENATOR WAYNE ALLARD

Thank you Mr. Chairman. I thank you for calling this hearing and bringing the

issue of military tribunals here to the Armed Services Committee—where it belongs.

The President’s order to the military and the Department of Defense on the detention, treatment, and trial of certain non-citizens in the war on terrorism has stirred

much debate. Accurate and factual information on the subject has been mixed with

information that is fictitious and/or irrelevant. Before the Defense Department has

even had a chance to promulgate rules and procedures for them, some have already

slandered the military commissions as unconstitutional, even in the face of highly

favorable historical and constitutional traditions.

I support the President in his decision. The spectacle of thousands of high-profile

U.S. court terrorism trials dragging on for years would be a legal, logistical, security, and safety nightmare. But difficulty is not the reason for the tribunals, nor is

cost (although the McVeigh trial alone cost about $82 million). The President has

taken this step to ensure that further acts against the United States—by a group

that has already killed thousands of innocent people—are forestalled. The Executive

Order, while mandating humane treatment and fair trials, will prevent the disclosure of extremely sensitive security information, minimize the risk to public safety

that holding trials in the U.S. would foster, expedite the nullification of threats to

our country, and will facilitate the proper settlement for military actions.

The President’s order specifically directs that trials before military commissions

will be ‘‘full and fair,’’ and I have no doubt that this administration will do that and

remain well within the bounds of the Constitution. Certainly, oversight by Congress,

in particular this committee, is important.

Secretary Wolfowitz and Mr. Haynes, I thank you for coming here today. I look

forward to hearing your testimony. In order to defeat terrorism and limit the risk

to ourselves and our allies, it is important that we bring terrorists to justice. I agree

with the White House Counsel Mr. Gonzales, when he said that, ‘‘The American

military justice system is the finest in the world, with longstanding traditions of

command influence on proceedings, of providing zealous advocacy by competent defense counsel, and of procedural fairness.’’ I am confident that you will continue this

tradition.

We are already seeing success in physically dismantling the al Qaeda network

and the destruction of their financial backing. But, it is important that we defeat

terrorism on all fronts. We are winning the war on the military front, on the economic front, and on the diplomatic front. Bringing terrorists to justice in a fair and

just manner is critical in winning the information front and achieving a long term

victory that provides security for our citizens at home and while traveling abroad.

Again, thank you for coming here today and I look forward to hearing your testimony.

Senator ALLARD. Secretary Wolfowitz, I want to compliment you

on your statement. I think it was a very good statement. I’d point

out that a trial by military commission isn’t anything new. George

Washington used it, and right up to current times it’s been in use.

It’s been endorsed by all three branches of government. I think

that’s impressive.

I also listened very carefully to the reasons why you felt like we

needed to go to a military tribunal. I found two of them very clear

and easy to understand. The first one you mentioned was to better

protect our civilian judges and jurors from threats from terrorists.

I think that’s easy to understand. The third one you mentioned was

that they allow the use of classified information. I think we all understand how many times our sources get exposed, perhaps, in a

public trial. We put them at risk and we lose them—they either get

killed or they get disclosed so that they’re no use to use any more,

from an intelligence gathering purpose.

You talked about how Federal rules of evidence often prevent the

introduction of valid factual evidence for public-policy reasons. I

tried to think, in my own mind, of where that might apply, and I’d

like to have some help. One area that I thought it could apply, for

example, would be in a Miranda decision. Police officers or anybody

26

that’s making an arrest carry a little card and promptly read their

rights to whoever is being arrested. In this particular case, we frequently have arrests being done by somebody in the military—either a military officer or somebody—men or women serving the

military. Certainly, they’re not trained in the Miranda decision

that, in a practical sense, would never be applied on the field of

battle, perhaps not even here in this country.

We have somebody in the National Guard, for example—I can

visualize an example in an airport, when somebody might walk on

with a body bomb or something like that, and they immediately put

him under some kind of arrest or whatever. They’re not going to

read him his Miranda rights.

I could also see where perhaps chain of evidence would be difficult to apply. I assume these are the kind of situations you’re

talking about where they would get off in a civilian court or regular

judicial courts, but certainly wouldn’t apply in a military court. I’d

like to have you comment on those examples and then also are

there other examples that could be referred to as to why it wouldn’t

be appropriate to try them in a regular court of law?

Secretary WOLFOWITZ. Another example might be our exclusionary rules that basically make sure that our law enforcement people

don’t undertake unreasonable search and seizure procedures and,

therefore, if evidence is collected in violation of one of those rules,

it can’t be introduced. I mean, imagine if a foreign terrorist were

sneaking into the United States with a trunk-load of anthrax in the

back of the car, and the policeman unreasonably opened the trunk

and found it. I don’t think we’d want that evidence excluded in a

trial. That might be a reason why you’d consider a different criminal procedure.

But let me go to something even more fundamental. You’re absolutely right that we don’t train our special forces in Miranda rules.

But it isn’t only that they’re not trained to do it. This comes to the

fundamental point. They are trained to do the opposite. They are

trained to take these people and to question them and to get as

much information as quickly as possible because it is part of the

defense of the United States. The information that the people they

arrest know about may help us to catch other terrorists, may help

us to prevent other terrorist incidents. Therefore, the last thing we

would want is to be picking up al Qaeda terrorist in Afghanistan

today and reading them their Miranda rights. We want them to tell

us everything they know. Now, after they’ve told us all of that,

we’re going to say it can’t be introduced in a trial?

What we’re trying to accomplish here is two goals, and I think

we can accomplish both of them. One is the defense of the United

States. The second is a full and fair trial. But the defense of the

United States is fundamental in all of this.

I would add one other thing. I believe the existence of this procedure, the possibility of military commissions, even without anyone

having been turned over, even without the procedures having been

specified, is something of a deterrent to people, for example, sneaking into the United States thinking—and there’s some evidence

that among many things terrorists have studied rules of civil procedure when learning how to operate in this country—to put them on

notice that you may be in a completely different process. Don’t

27

count on Miranda rights if you’re arrested if you’re a foreign terrorist sneaking into the United States.

Senator ALLARD. What I’ve seen is the disclosure of a lot of their

procedure manuals, and they specifically talk about how they can

avoid prosecution, perhaps using our own civil courts. Is that correct?

Secretary WOLFOWITZ. That’s my understanding. I haven’t actually seen those manuals, but I’ve heard about them. Yes, sir.

Senator ALLARD. Okay. If you go into a trial by military commission, who provides the defense counsel?

Secretary WOLFOWITZ. I’ll turn to my lawyer, but I think that’s

one of the questions we’re looking at.

Mr. HAYNES. That is one of the questions that we’re looking at.

The President’s order provides that they shall be afforded counsel.

One would expect that we would provide military counsel for them,

as this is a military proceeding. But as I said to Senator Kennedy

earlier, there are many different possible permutations of that procedure, and that needs to be determined.

I might add, regarding your first question, that there are other

types of evidence that might otherwise be excluded in a normal

criminal proceeding in a U.S. Federal court that, nevertheless,

would be valuable in weighing the facts—in order to get at the

truth, in other words. For example, remote testimony, affidavits,

recorded testimony. There may be witnesses who, for very good reasons, can’t be identified. Now, in a normal proceeding, those might

not be allowed in at all, for good reasons, for reasons that ensure

that we have a fair process that works for another two-hundredand-some-odd years that the country’s been working. Those are

prophylactic reasons, reasons that we have decided are good for the

overall administration of justice on an ongoing basis, that may not

have any application in this context, a war that we hope is not a

long one, although we fear that it is. But there may be evidence

like that that should be considered and will have to be weighed

based on the value of it, as determined by the triers of fact.

Senator ALLARD. Now, these are non-citizens that you’re talking

about. These aren’t American citizens. I think that ought to be

clarified for the record. So if you have a non-citizen arrest in a foreign country, then the thought is that the military commission or

tribunal would probably not be conducted in this country. Is that

correct?

Secretary WOLFOWITZ. Sorry to keep giving you the same answer,

but that is one of the issues that clearly remains open and might

be decided depending on the individual case, as well. I think it depends on what foreign country we find him in and what the options

are for trial, but they would certainly not necessarily have to be

brought back here for trial. As I noted in my opening testimony,

the very large number of German and Japanese soldiers that were

tried before military commissions at the end of World War II were

obviously not tried in this country.

One can’t say it often enough. We say it over and over again.

These commissions are only for non-citizens who are accused of terrorist acts against the United States.

Senator ALLARD. I appreciate you clarifying that. That’s been my

understanding, that it would apply only to non-citizens.

28

Mr. Chairman—I guess Senator Lieberman’s acting as chair—I

see that my time has expired.

Senator LIEBERMAN. Thank you, Senator Allard.

Senator Reed.

Senator REED. Thank you very much, Senator. Thank you, Mr.

Secretary and Mr. Haynes, for your testimony this morning.

At this juncture, it appears that there is the constitutional right

to conduct these tribunals. Our issue is making sure we get that

right correct, with appropriate procedures in place so that there’s

both a procedural fairness and substantive fairness.

Let me ask a few questions. I’m going to try to divide up the

questions—the legal questions to Mr. Haynes, the policy questions

for the Secretary.

Mr. Haynes, in response to Chairman Levin, you indicated, or at

least implied, that there would be a right of habeas corpus review

under the Quirin case. But there was a subsequent case in which

the Supreme Court decided that an alien outside the United States

did not necessarily have the right to habeas corpus review. That

was Johnson versus Eisentrager. Are you aware of that case, and

in what way will that inform your decision about the process of review?

Mr. HAYNES. Perhaps I wasn’t as precise as I should have been.

What I was responding to, or thought I was responding to, was

trial in the United States. I stand corrected if I mis-spoke earlier.

Senator REED. Well, it’s most likely that, in the most controversial cases, the individuals will not be returned to the United

States. In that case, your view would be that those individuals

have no right to a writ of habeas corpus?

Mr. HAYNES. That’s my view.

Senator REED. That, I assume, would put additional emphasis on

other rights of appeal within the Department of Defense. Is that

a fair deduction? Or would you conclude, at this point, that if someone’s tried overseas, there will be a right to appeal the verdict of

a court?

Mr. HAYNES. Well, again, the Secretary hasn’t decided on what

the procedures will say yet. The order itself does include within it

a review above the tribunal itself, so there will be, automatically,

at least that appeal. What additional procedures the Secretary decides to employ remain to be seen.

Senator REED. Again, I don’t want to keep emphasizing this, but

it’s a fundamental right of habeas corpus. It’s a right which the

court recognizes is available to someone tried by a military tribunal

within the United States. But simply a decision administratively

not to try the person in the United States could render that right

to habeas corpus moot, so it seems to me that this is an issue that

you have to devote yourself to rather seriously in terms of some

procedures to review cases.

Mr. HAYNES. We are being very serious. But I point out that in

your hypothetical we are talking about—non-U.S. citizens outside

the United States. The Constitution does not give those individuals

anywhere near the rights that U.S. citizens have.

Senator REED. I’m not arguing with you, but you have the authority under this law to bring the individual to the United States

for trial, which would trigger habeas corpus review, or keep him

29

outside the United States. I think you have to be very careful in

procedures so that doesn’t appear to be an arbitrary denial of a

right which would be available to the alien if he was tried in the

United States. Is that a fair point?

Mr. HAYNES. I take your point that we should be serious, and we

are, and we would solicit more views from you after the——

Senator REED. Let me ask another question. In the order, at page

five, it talks about the prosecution conducted by attorneys designated by the Secretary of Defense and ‘‘conduct of defense by attorneys for the individual.’’ Do you contemplate—and you might

have covered this in your previous questioning—that the individual

may select the attorney of his choice or her choice?

Mr. HAYNES. It may be that the Secretary decides to address the

right to counsel in a number of different ways. One option could

be to provide military counsel or other counsel to them. The extent

of choice remains to be seen. The Secretary will have to consider

what qualifications are going to be important in order to provide

effective counsel. This is an important and fundamental tenet of

our American system, and whatever counsel is provided will be

competent and a strong advocate and qualified in all respects, including the need to protect information and——

Senator REED. Well, there are several ways to do that. The first

is to establish general criteria—must be a member of a bar in a jurisdiction of the United States, etcetera. The other way is to specifically reject suggestions by the defendant of who would represent

the defendant, even though they meet this criteria. Do you believe

the Secretary of Defense would deny individual choices by a defendant of defense counsel who is otherwise qualified?

Mr. HAYNES. I could imagine some circumstances where counsel

chosen by the defendant might not be appropriate under the circumstances, so, yes, I can imagine that circumstance.

Senator REED. That decision would be made by the Secretary of

Defense.

Mr. HAYNES. In the implementation of the procedures implementing the order, the Secretary will include rules about qualifications of counsel, both defense and prosecution.

Senator REED. Well, it’s quite clear. The order says that the prosecution attorney will be designated by the Secretary of Defense.

But what you’re suggesting by your comment is that the order

should be further read to imply that the defense counsel might also

be selected by the Secretary of Defense.

Mr. HAYNES. There’s another provision of the order that I can

give you later if you’d like that says the Secretary shall prescribe

rules for the qualifications of counsel, both prosecution and defense.

[The information referred to follows:]

Pertinent language from the President’s Military Order of November 13, 2001, as

well as Department of Defense Military Commission Order No. 1, ‘‘Procedures for

Trials by Military Commissions of Certain Non-United States Citizens in the War

Against Terrorism,’’ dated March 21, 2002, are provided as an appendix to this testimony.

30

31

Senator REED. What level of rank do you contemplate the military judges to be?

Mr. HAYNES. That’s not been determined. This would clearly be

an important factor to consider. The qualifications of the commission members or judges, as you say, is certainly very important. In

the past it has ranged, depending on the level of the offense

charged, the quantity of the cases, and the individual accused. I

could imagine a whole range of possibilities.

32

Senator REED. In a technical sense, the convening authority

would be the Secretary of Defense? The Secretary of Defense would

choose the judges?

Mr. HAYNES. One of the issues is whether the Secretary would

make that determination himself or whether he might identify different subordinate appointing authorities. That has been done different ways in different times over the years, as well. There might

be some utility to that.

Senator REED. Let me ask another more general question. It’s my

understanding that bin Laden has been indicted in a Federal court

in New York for the bombings of our embassies. Yet, as I read the

order, the present order would essentially disregard any existing

indictments by Federal courts and vest exclusive jurisdictions in

these military tribunals to those individuals that he has identified

as being subject to this war. Is that a correct understanding?

Mr. HAYNES. I don’t think so. I don’t think that the order is intended to divest the Article III Courts of jurisdiction. It is a separate and concurrent option for trial under these cases. Of course,

it would require the President to make a specific written determination. In the case of bin Laden, as you say——

Senator REED. But that raises the question of competitive venues

or jurisdictions for this trial, at least in the case of bin Laden. An

indictment is pending in a Federal court, an Article III Court in

the United States, versus the President’s decision unilaterally

under this order to essentially ignore the indictment in the Federal

court. I think it’s a real issue. I don’t have an answer, but I think

it’s a real issue.

Mr. HAYNES. Well, it’s not an unusual circumstance. For example, one could be indicted in state court and Federal court at the

same time. The fact that there are different potential forums for

trial or adjudication is not problematic.

Senator REED. My time has expired, but just one final point, and

I’m a good enough lawyer to know I don’t know the answer. As I

understand it, though, if there’s no agreement between the state

court and the Federal court, both have at least the authority to

conduct the trials. I mean, perhaps I’m wrong. Thank you.

Chairman LEVIN. Thank you very much. Senator Sessions.

Senator SESSION. Thank you, Mr. Chairman. First, Mr. Chairman, I’d like to submit for the record a number of items from experts in constitutional and international law that have affirmed the

military commissions as President Bush has proposed it. First is a

letter from the former Attorney General of Alabama, Bill Baxley,

who’s a Democratic Attorney General, was a JAG officer in the National Guard for many years, has tried cases before military tribunals, and said he probably is the only person in Alabama that’s

read the entire Nuremberg transcript. He believes this is a proper

and appropriate way to proceed, as does Dean Doug Kmiec, of

Catholic University, Professor Ruth Wedgwood of Yale, a widely acknowledged international law expert, and Gen. Michael Nordotti, a

former top JAG officer in the Army.

[The information referred to follows:]

Mr. Chairman: I submit for the record the following items from experts in the

field of constitutional, international, and military law, all of whom have studied

President Bush’s Military Commissions Order and who support it:

33

1. The written statement of retired Gen. Michael Nardotti, the former top JAG

officer of the U.S. Army;

2. An op-ed by Professor Ruth Wedgwood of Yale a widely acknowledged international law expert;

3. A statement by Dean Doug Kmiec of the Catholic University Law School, and

former Assistant Attorney General for the Office of Legal Counsel; and

4. A letter from former Attorney General of Alabama, Bill Baxley, who has tried

cases before military tribunals and read the entire Nuremberg transcript, and lectured on the Nuremberg transcript, and lectured on the Nuremberg International

Military Tribunal.

ITEM 1

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ITEM 2

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ITEM 3

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ITEM 4

BAXLEY, DILLARD, DAUPHIN & MCKNIGHT,

ATTORNEYS AT LAW,

Birmingham, AL, December 10, 2001.

VIA FAX, OVERNIGHT AND FIRST CLASS MAIL DELIVERY

Hon. JEFF SESSIONS,

United States Senator,

493 Russell Building,

Washington, DC.

DEAR SENATOR SESSIONS: I am, doubtlessly, one of your few constituents who has

read the entire trial transcript of the Nuremberg Trials. In this vein, and as a result

of my experience as both a prosecutor and as defense counsel, including appearing

before military tribunals, I am writing now to address concerns expressed by some

members of the press, and a few in Congress, relative to the utilization of military

tribunals to determine the innocence, guilt, punishment or release of those who

have been charged with crimes arising from the events of September 11, 2001,

which are continuing today.

In my opinion, the security of this country can be best preserved by supporting

and implementing the proposals of President Bush in this regard. I have faith that

the men and women who would serve on these tribunals can afford any person accursed complete justice, impartiality and fairness in the adjudication of guilt or innocence. Many Americans are unaware that at Nuremberg a number of those who

were charged with war crimes were acquitted, and that some were convicted of some

charges made against them, but acquitted of others. I recognize, of course, that the

President’s proposals differ from the procedures at Nuremberg. Nevertheless, I have

endeavored to familiarize myself with the President’s proposals and with objections

to them which have appeared in the media. I consider myself sensitive to all legitimate arguments made in support of civil rights and liberties, but after considering

all the arguments—pro and con—I continue to strongly support the President’s proposals, and to endorse them during this crisis.

Please take these views into consideration as you consider the most appropriate

action to take regarding prosecutions arising from the events of September 11, 2001,

which are continuing events, and which threaten the security of our country. If I

can be of any assistance to you in connection with decisions touching upon these

issues in the United States Senate, or elsewhere, it will be an honor and a privilege

for me to share my time and the benefit of my experience with you.

Respectfully yours,

BILL BAXLEY.

Senator SESSIONS. I would just like to run through a few of the

questions that I think get down to the nitty-gritty. You may not be

prepared to answer them, but maybe you can give us some of the

difficulties and tensions in answering these questions.

We talked about habeas corpus. That’s the right of a person to

bring himself before a court to find out if they’ve been charged with

a crime and what it is, fundamentally. That’s the great writ. But

the Quirin case, as I understood it, said fundamentally that there

would be a right to bring them forward to make sure that the trial

was appropriately tried in the military commission. Is that basically what the court decided in Quirin?

Mr. HAYNES. Yes, sir. That’s why they heard it. They made the

determination that it was appropriate.

Senator SESSIONS. So, otherwise, if it was properly tried in the

military tribunal, a Supreme Court approved the complete handling of that case in the executive branch. Is that right?

Mr. HAYNES. Yes, sir. That’s right.

Senator SESSIONS. I would just point out that Americans are so

committed to civil liberties that we have some difficulties understanding there are other ways of doing justice. You do have an apVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
56

pellate process here. This order requires that a transcript of the

case be made—the whole trial. Is that correct?

Mr. HAYNES. That’s correct.

Senator SESSIONS. That an appeal be given to the President or,

if he designates, the Secretary of Defense to review that record to

make sure justice was done. Is that correct?

Mr. HAYNES. That is correct.

Senator SESSIONS. The Secretary of Defense could assign JAG officers and other officers, as he’d choose, to study and review every

aspect of that, if he so chose.

Mr. HAYNES. Yes, sir. The form of that remains to be seen, but

that’s correct.

Senator SESSIONS. However he chose to do that. It would just

strike me that we’re operating under the war powers provision

here, which is an executive-branch function, and I would suggest

that history should be the guide. If it is the guide, Mr. Haynes,

then any reviews and appeals will be within the executive branch.

Is that correct?

Mr. HAYNES. That’s correct. Although, as was said earlier, there’s

no intent to preclude an accused from seeking out habeas corpus

writ.

Senator SESSIONS. Now, with regard to cross examining of witnesses, you were, rightly, not too quick to say, ‘‘Oh, of course, we’re

going to have full cross-examination of witnesses.’’ I would just

offer the point that the American justice system provides the greatest possible ability to cross-examine witnesses, far beyond that in

most countries in the world.

But the point I would suggest to you is that if you have absolute

right to do that, we’ll have some serious problems, such as if the

information that was critical to the conviction of a defendant came

from a local citizen whose life might be at risk if it were known

that he had provided information against the defendant. Or if the

information came from an electronic intercept, the normal procedure in Federal courts is for the person who conducted the intercept to come into court, explain how he did it, how his equipment

worked, and be subject to cross-examination. I don’t think that’s

necessary. To that extent, you could have some limitation on the

traditional civil right of cross-examination, and rightly so, would

you not?

Mr. HAYNES. Yes, sir. The President’s order says that the standard for admission of evidence is that it have probative value to a

reasonable person. Now, the fact that some aspects may or may not

be subject to cross-examination would go to the weight of the evidence. The triers of fact and the judges, if you will, would have to

factor that in, and counsel would be able to comment on that.

Senator SESSIONS. Counsel would be able to comment on it and

argue the point. I agree.

Military justice does provide our soldiers and sailors and airman

and marines more protections than it does the terrorists or people

who are committing war crimes against the United States. But

isn’t it true that history has proven and that the military is quite

proud of its justice system and it does rely on all participants in

it being part of the military chain of command?

Mr. HAYNES. Yes, sir.

57

Senator SESSIONS. So it strikes me that some believe juries can

know nothing or have no connection whatsoever to a case. But in

the military, every military man and woman is tried by fellow officers and enlisted people in general of a higher rank than they, isn’t

that correct?

Mr. HAYNES. That’s correct.

Senator SESSIONS. I’m just real proud of the military justice system, Mr. Chairman. I, in the Army Reserves, served a few years

as a JAG officer, although I never did attend the wonderful JAG

school at the University of Virginia. It’s one of the finest legal

schools in the world, I think, and it turns out people who are committed to justice. Military men and women, officers particularly,

are used to following orders and directives. If they’re told to follow

this evidence and exclude this evidence or admit this evidence, they

will do so, and they will do so with integrity. It’s done every day.

People should not believe that just because this is a military matter that they have any desire whatsoever to convict an innocent

person. Why would a military person want to do that? We have

some on the extreme left and the extreme right that are so hostile

to government that they are paranoid about any kind of final decision making process, and I think you have a good system here of

allowing for appeals and creating a system that will be just. If not,

Congress and the world will judge you for it. That’s a high burden,

I believe. Thank you.

Chairman LEVIN. Thank you.

Let me read the order now of recognition, assuming they’re here.

On the Democratic side, Senators Akaka, Ben Nelson, Bill Nelson,

Dayton, Bingaman, Cleland, Lieberman, Landrieu. On the Republican side, Senators Collins, McCain, and Smith, in order of appearance. So the next who is here would be Senator Ben Nelson.

Senator BEN NELSON. Thank you, Mr. Chairman. Thank you, Mr.

Secretary, for coming back to appear before us. We’re getting to

know one another quite well from these exchanges. Mr. Secretary,

I know I speak, as others have, for the American people in thanking you for what you and the men and women in the military are

doing, demonstrating significant courage and commitment, and we

wish you and all of them well in this endeavor, particularly in the

days ahead.

I also realize that this is a question-and-answer period, but probably it’s most enlightening for both of us just simply to express our

concerns rather than try to get specific answers back from you on

these issues. It’s premature, but at least it will give you an idea

of what concerns we have as you move through this process, both

you and Mr. Haynes. I appreciate that opportunity, because you

may be able to bundle together a process of appellate procedures,

rules for proceeding, rules of evidence, certainly whether it’s something that ought to be public or private, what kind of appeal might

be taken, and all of those elements of the tribunal system will be

important. I think you’re hearing from each of us today our concerns about making sure that this system of justice isn’t some

weakened shadow of the justice of the American system that for

over 200 years has continued to evolve in a rule of law rather than

a rule of man. I believe that is very compelling, to be sure that

what we do is appropriate under all the circumstances.

58

One of the most compelling arguments for the tribunal system,

I think, in this particular case is the security issue of the individuals who are involved in the system, in the process, being able to

provide that security against an invisible foe, one who has already

demonstrated a willingness to disregard human and innocent life.

I think that certainly is important.

The civilian process of working through that, I think, only raises

more security issues. So I truly believe that is one of the most compelling reasons for doing it—not to weaken the justice system, not

to get a diluted justice system for other individuals, but for security

purposes.

I know that there will be another opportunity for you to come

back and, at that point in time, probably questions will be more in

order, rather than just simply giving you our thoughts, and so I

will withhold any questions—specific questions, rather than to put

you on the spot.

Secretary WOLFOWITZ. Well, that’s very helpful. We have had

some very useful exchanges this morning.

Senator BEN NELSON. Well, I think it isn’t fair to keep asking

you questions when you’re saying, ‘‘Look, we haven’t put this together.’’ So what I would like to suggest is that as you think about

whether the evidence is retained in private or whether it’s public,

that there may be instances, as with the bin Laden video, that it’s

less about a particular trial or a particular tribunal situation, and

more about the public and the desire of the public to know, on the

one hand, but really the importance of having the public more

aware of what’s going on with respect to somebody’s guilt or innocence.

So I hope you will think about that, because once you start the

process, unless you have fit in some sort of an exception—a waiver,

exception, something like that—we may commit ourselves to a

process that we could regret in the long-term or violate our own

principles of justice, fairness, and due process that we are seeking

to protect.

Thank you very much for being here. I look forward to another

opportunity. Perhaps if I have some questions along the way, I

might submit them to Mr. Haynes.

Secretary WOLFOWITZ. We appreciate that very much, Senator,

and I appreciate your comments.

Senator BEN NELSON. Thank you. Thank you, Mr. Chairman.

Chairman LEVIN. Senator Smith.

Senator SMITH. Thank you very much, Mr. Chairman. Mr. Chairman, is it 8 minutes?

Chairman LEVIN. Yes.

Senator SMITH. Good morning, Mr. Secretary and Mr. Haynes.

It’s great to see you here. Let me join the chorus of those who have

commended you for the outstanding job you’re doing and will continue to do in this effort to fight against the terrorist networks

around the world, and specifically Afghanistan. We appreciate your

coming up. There has been a lot of controversy since the President

announced the tribunal issue, and I think it is great that you came

here and clarified a lot of the questions.

I might just say, Mr. Haynes, I’m sure you’ve had a lot of documents referenced to you, but I would refer one to you. In The FedVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 80293.101 SARMSER2 PsN: SARMSER2
59

eral Lawyer, November–December, a senior judge of the Military

Court of Appeals, the Honorable Robinson Everett, wrote a very interesting article entitled ‘‘The Law of War Military Tribunals and

the War on Terrorism’’. It’s a good overview, which you may find

helpful. I would ask unanimous consent that it be put in the

record.

Chairman LEVIN. That will be made a part of the record.

[The information referred to follows:]

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Senator SMITH. I wasn’t here during your earlier testimony, but

I was watching it on television, and you did reference a number of

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tribunal precedents, Mr. Secretary. President Truman used one, as

well, on the Bataan Death March—I don’t believe that one was

mentioned—in the Yamashita case. They used it again trying German soldiers spying in China against America after the surrender

of Germany. His decision was upheld by the Supreme Court in

Johnson versus Eisentrager.

It’s interesting. Every time it’s been used, it’s been upheld by the

courts. So those who join this chorus of unconstitutionality have

very little, if any, evidence to support that charge at all. Interestingly, one decision was written by Justice Jackson, who was the

lead prosecutor in the war crimes trials in Nuremberg. So I think

many have suggested the constitutional issue.

Although it sounds good about whether or not an alien terrorist

will have constitutional rights, the truth is that’s not what the Supreme Court had in mind. On the contrary, in the Eisentrager case,

the most recent opinion regarding military tribunals, the court held

that there were no incidents, ‘‘where a court, in this or any other

country where a writ of habeas corpus is known, has issued it on

behalf of an alien enemy who, at no relevant time and at no stage

of his captivity, has been within its territorial jurisdiction.’’ Nothing in the text of the Constitution extends such a right, period.

Every time, that I can find, the Supreme Court has upheld these

tribunals. I would not want to be in a position where bin Laden

were to be let go because somebody didn’t read him his Miranda

rights. I don’t think that would go over very well. I certainly do not

believe that his kind should be entitled to the benefit of civilian

Federal criminal procedure where good lawyers would have a lot of

fun with that. I don’t think we need that in America.

I would make one other point, then, and ask a couple of very specific questions. In the chorus of critics, I remember when President

Clinton signed a treaty to create the International Criminal Court,

which, if Americans were hauled before it, would deny them basic

rights, including trial by jury, number one, of their peers, protection from double jeopardy, and the chance to confront one’s accusers. As a matter of fact, Secretary Rumsfeld, I think, warned that

‘‘the American leadership could be the first casualty of the ICC’’.

Did you have any input into that comment, Mr. Secretary? Or

could you clarify what you might have meant by that?

Secretary WOLFOWITZ. I don’t. I mean, I think it speaks for itself.

It’s pretty clear.

Senator SMITH. It does speak for itself. Let me ask Mr. Haynes

just a few questions. If you can answer, fine. If you can’t, when you

know, we will hear it or you could provide it for the record.

Do you intend to hold all trials of alien terrorists who are not

here in the United States exclusively outside the U.S. borders?

Mr. HAYNES. Senator, there have been no decisions about that,

either in the regulations and indeed——

Senator SMITH. No decision?

Mr. HAYNES. That’s correct.

Senator SMITH. Okay. In 1995, I had language added to a piece

of legislation that provided for a judge to be set up to hear evidence

on the deportation of those who may be involved in terrorist activities. The problem is, of course, it’s never been used, because the intelligence community doesn’t want to compromise sources and

65

methods by providing the information to the terrorist or his attorney.

Why can’t we come back, in the case of those where we might

have good information that they may be involved in a network but

haven’t committed a crime yet—is there any feeling in the administration that we could re-institute those courts and provide deportation to some of these people?

Mr. HAYNES. I’m not familiar with that option, Senator. I will

look into it and get back to you.

[The information referred to follows:]

The Alien Terrorist Removal Court of the United States, established pursuant to

the Antiterrorism and Effective Death Penalty Act of 1996, remains the law of the

land. We are in the process of coordinating with the Department of Justice about

this option.

Senator SMITH. Alright. Back onto the promulgation of the rules.

Have you given any thought to only using uniformed military officers to practice before the tribunal?

Mr. HAYNES. That’s certainly one of the options. Yes, sir.

Senator SMITH. Clarifying in advance the rules of procedure by

making applicable the Manual for Courts-Martial?

Mr. HAYNES. The President has made a finding in the order that

it is not practicable to use the normal rules. Now whether and to

what extent the Secretary of Defense may choose among those or

create totally different ones, we haven’t decided.

Senator SMITH. What about using judges from the Military Court

of Appeals, active or retired?

Mr. HAYNES. That is an option.

Senator SMITH. Can their privacy be protected in these trials in

a way that they would avoid some of the problems that have already happened in the case of the judge who heard the one terrorist case earlier in the New York?

Mr. HAYNES. I believe you’re referring to the 1993 conviction.

Senator SMITH. Yes.

Mr. HAYNES. In that, the security of the people who administer

the process is certainly a concern and conceivably, along with other

factors, might be a factor in deciding whether and to what extent

proceedings might be held outside of the press.

Senator SMITH. Last question. I’m assuming you’re going to draw

pretty heavily on the Nuremberg trials, and that’s probably the

best historical example we have. Is that correct?

Mr. HAYNES. The Nuremberg trials were international trials, as

opposed to United States tribunals, but the procedures there are

certainly very helpful to——

Senator SMITH. That’s what I’m talking about, the procedures.

Thank you very much, Mr. Chairman.

Chairman LEVIN. Thank you, Senator Smith. Senator Bingaman.

Senator BINGAMAN. Thank you very much, Mr. Chairman. Thank

you, Secretary Wolfowitz. I appreciate both of you being here. Let

me put this in a very broad context. As I see it, what we are talking about here are really three stages. There is the stage at which

the President makes his determination that someone is a foreign

terrorist or a war criminal. I think under the order here, he makes

the determination that someone is engaged in acts of international

terrorism. So that’s the first stage.

66

The second stage is what you would be responsible for. That

would be conducting the full and fair trial of any such person who

was previously determined by the President to have been engaged

in acts of international terrorism. Then the third stage would be

any appeal or any judicial review or any review by anybody of what

occurred at the trial. So that’s a very general way to think about

it.

I’m concerned about the first stage, where the President—in this

order, it says—this term, ‘‘individuals subject to the order shall

mean any individual who I determine from time to time in writing

as engaged in acts of international acts of terrorism or abetted or

aided in that.’’ Do we have a definition of ‘‘international terrorism’’?

Is there any limit on the President’s ability to make a determination in that regard?

Mr. HAYNES. If I may, let me qualify a little bit about what

you’ve said at the outset. The President’s order says that he doesn’t

necessarily make a determination at the outset that they are a terrorist.

Senator BINGAMAN. It does. It says, ‘‘Whom I determine from

time to time in writing that, first, there’s a reason to believe the

individual at the relevant times is not a citizen and, second, that

they have committed an act of international terrorism.’’

Mr. HAYNES. That is correct. The words that I was beginning to

focus on are ‘‘that there is reason to believe.’’ So, in other words,

he is not making a determination at that point.

Senator BINGAMAN. So he just has to make a determination that

there’s reason to believe that.

Mr. HAYNES. That’s correct. He also has to factor in, not just the

language that you quoted, but he also makes a separate determination that it is in the interest of the United States that such individual be subject to the order. So there are a couple of self-imposed

standards that he——

Senator BINGAMAN. But is there any definition of what we’re

looking at when we talk about an act of international terrorism?

For example, when Timothy McVeigh blew up the Federal building there in Oklahoma, if he had been a foreign national legally

resident in this country, would he be someone who had engaged in

an act of international terrorism, in your opinion?

Mr. HAYNES. Well, you make an important qualification. The

President’s order does not include U.S. citizens. So when you—

Senator BINGAMAN. I’m saying if he had been a foreign national,

would that be a case that would be appropriate for a military tribunal?

Mr. HAYNES. It might be, depending on all of the facts present

at the time. If the President made the determination that there

was reason to believe that—again, in looking at the order, it is not

just international terrorism, it’s also ‘‘is or was a member of the organization known as al Qaeda, has engaged in, aided and abetted,’’

and so forth, or has knowingly harbored. Now, those are in the alternative.

Senator BINGAMAN. The question is, is blowing up the Federal

building in Oklahoma an act of international terrorism? You’re saying it may well be.

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Mr. HAYNES. You have changed the facts so significantly already.

Let me play that out. One would think that the President would

consider whether that had some link outside the country to make

it international.

Senator BINGAMAN. So the fact that the person was foreign would

not necessarily make it international.

Mr. HAYNES. That is the President’s determination to make.

Senator BINGAMAN. But there’s no limit on the ability of the

President to make that. He is well within his rights, as you see it,

to make that determination that McVeigh should be tried in a

criminal tribunal—in a military tribunal.

Mr. HAYNES. I’m very uncomfortable talking about an individual

who is a U.S. citizen, who is specifically not subject to the order.

So using the——

Senator BINGAMAN. Well, let me ask about another one. What

about Ted Kaczynski? If he were foreign—if he had been a foreign

national, do you see any problem with the President making a determination that his activities in mailing these explosive devices to

people was an act of international terrorism?

Mr. HAYNES. If you’re positing a non-U.S. citizen engaged in

international terrorism and whether those acts had some nexus to

something outside the country—I think that would be an important

factor for the President to consider. You haven’t put that in your

hypothetical. So if the acts were purely within the United

States——

Senator BINGAMAN. You’re saying there has to be some nexus to

something outside the country in order for this to apply.

Mr. HAYNES. Well, in order for it to be international terrorism,

one would think that there would have to be something outside the

United States, some means to make the determination that this is

international in character.

Senator BINGAMAN. Usually, military tribunals, as I understand

it, have been invoked and used when you are, in fact, trying people

who are engaged in some kind of military action against our country. Is that a fair statement? One of your statements here, Secretary Wolfowitz, is that it is well established that a foreign national who is engaged in armed conflict against the United States

has no constitutional claim to rights and procedures that would

apply. I guess the question is, is that what we’re talking about

here? People who are engaged in armed conflict with the United

States?

Mr. HAYNES. It is the purpose of this order to try war crimes.

Senator BINGAMAN. War crimes, meaning the person who is

going to be subject to this needs to be engaged in some kind of a

war effort against our country, not just a freelance terrorist who

has a point of view that is inimical to our general point of view or

our policies or our way of government or whatever.

Mr. HAYNES. I think that is a fair way to look at it, but I also

want to reiterate that, as written, the President’s order requires a

specific written individual determination by him which recognizes

the fact that these cases will depend on all the facts and circumstances. So I don’t want to generalize too much beyond what’s

in the order.

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Senator BINGAMAN. Is there going to be any kind of a threshold

or a set of procedures that the President would adhere to in making his determination? To what extent is his determination in any

way reviewable? I guess there’s no review of it under the order that

has been issued.

If, for example, someone were to be turned over or determined

by the President to be subject to this order, and he determines that

there is evidence to indicate that you’re involved in international

terrorism, there is no way to dispute that. I mean, there’s no way

to say, ‘‘I deserve to be tried in a Federal court.’’

Mr. HAYNES. Well, there will be a trial.

Senator BINGAMAN. But prior to actually having the trial in the

criminal court or in the military court, there is no way to say, ‘‘I

deserve to be tried in a regular Article III Court under the Constitution because I do not meet the criteria that would justify the

President putting me in a whole different system.’’

Mr. HAYNES. That’s correct.

Senator BINGAMAN. So there’s no review.

Secretary WOLFOWITZ. The order makes clear that the first criteria is if the President has reason to believe that the individual

is or was a member of the organization known as al Qaeda. That

is, I think, clearly where the focus is. If one takes one of your purely hypothetical cases of somebody who simply is a foreign national,

if there’s none of the reasons that would apply to preserving the

security of the trial, no connections to foreign terrorist groups that

would threaten the safety of judges and jurors, no reason to have

classified evidence collected abroad by intelligence agencies, none of

the reasons we’ve explained for the reason of the order—we’re not

here to prejudge or take away the President’s discretion, but that

kind of case, it seems to me, starts to define itself into the regular

civilian court system, and we have a perfectly effective civilian

court system for trying people guilty of acts of terrorism, including

Mr. Moussaoui, who has clear links to al Qaeda.

So, maybe I’m making a mistake in getting into the legal issues.

There are a lot of hypotheticals, and we have to be very careful.

The President does have a lot of authority, but it seems to me the

Quirin case was precisely a case of where the courts reviewed

whether that authority was properly exercised, and it was judged

that it was.

I think someone who was your—I’ve forgotten the name of the

Unabomber—the Unabomber, but with foreign nationality, would

have, I think, lots of ways to make sure that they were properly

put into the military tribunal system, if they were.

Senator BINGAMAN. Well, properly put in the military tribunal

system or properly put into the Federal court system?

Secretary WOLFOWITZ. Either one.

Senator BINGAMAN. So you think they would have a right to be

tried in the Federal court system?

Secretary WOLFOWITZ. No, I didn’t say that. I think they would

have an opportunity, because they’re here in the United States, to

appeal for habeas corpus.

Senator BINGAMAN. My time is up. Mr. Chairman, thank you.

Chairman LEVIN. Senator Lieberman.

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Senator LIEBERMAN. Thank you, Mr. Chairman. Thank you, Secretary Wolfowitz and Mr. Haynes. I appreciate the discussion. It’s

been very helpful.

It strikes me that part of what we’re all wrestling with here is

that we’re dealing with a matter of first impression for most of us.

We have not been involved in the United States constituting military tribunals for war crimes, at least not in my direct involvement, for some period of time. We have witnessed, in recent times,

international war crimes tribunals which have tried people involved in the Rwanda genocide and the Balkans, as well. So we are

working our way through this. I’m doing the same myself.

The other problem here is that we are a country that prides itself

on adhering to the rule of law, and yet we are, for all intents and

purposes, at war. One of the distinctions I think that we are trying

to make is how appropriately, as a country where we value the rule

of law, do we handle those who we capture as part of this war. In

other words, for some time there’s been criticism that we’ve been

treating terrorism too much as a legal violation instead of what it

was—and it became clear on September 11 that it was an act of

war.

In the reading and thinking that I’ve done about this, it certainly

does seem clear to me that the President has the right to constitute

military tribunals for violations of the laws of war. Perhaps because this is a matter of first impression, I think a lot of people

have been imagining the worst as they consider how these military

tribunals might be used. It is also true, probably, that they’ve been

imagining the worst because the specific wording of the military

order is, in some senses, vague and requires the kind of guidelines

that you’re now working on and the reassurances people are looking for.

The order was also issued in the context of other actions that

have alarmed people, the several hundred people detained, the

broad and mass questioning of Arab Americans or Muslim Americans.

But it does seem to me that today you have offered what I was

hoping for, and I hope the guidelines provide also, which is reassurance as to the way this administration is going to employ military tribunals as part of our war against terrorism—rights of appeal, rights of habeas corpus, full and fair trial, and what that

means. So I appreciate that.

I want to talk to you about the indictment yesterday of Zacarias

Moussaoui. This is the first criminal charge filed by the United

States Government directly related to the attacks against us on

September 11. I’m going to share with you my first impression, because I’ve just begun to think about it this morning, and maybe

you or others will alter my impression. But my first impression is

that the actions taken against Mr. Moussaoui go beyond reassurance and they are actually quite troubling and, to me, surprising,

because we have taken here a non-citizen of the United States, not

even a lawful permanent resident of the United States, a French

citizen of Moroccan descent, who, according to the charges filed

against him, ‘‘Is accused of conspiring with Osama bin Laden and

al Qaeda to murder thousands of innocent people in New York, Virginia, and Pennsylvania on September 11’’.

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This is not some foot soldier in al Qaeda hiding in a cave over

in Afghanistan. This is a guy who came to the United States—according to the indictment that I read in the papers this morning—

who conspired with the other 19 and, allegedly, directly with bin

Laden at some point, to carry out these acts that killed thousands

of our fellow Americans. He is a non-citizen, not entitled to the protections of the Federal district courts of the United States of America.

So I’m troubled by the precedent that this sets as to what the

administration will do regarding those who have violated the laws

of war. I mean, what greater violation of the laws of war could

there be than to have been a coconspirator in the attacks that resulted in the death of 4,000 Americans here on our soil? His direct

involvement in that being constrained only by the fact that he was

apprehended because people at the flight simulation he was training at, presumably to carry out one of the attacks, reported him?

I mean, if we will not try Zacarias Moussaoui before a military

tribunal, a non-citizen accused of being a coconspirator in the attacks that killed 4,000 Americans, who will we try in a military tribunal? What standard does this set for what will be done? I mean,

surely it can’t be just the happenstance that he was apprehended

in the United States of America as opposed to Afghanistan or

somewhere else in the world.

I must say, Secretary Wolfowitz, in the three points—or is it

four—that you mentioned in your opening statement, as to why

military commissions should be used—we can better protect civilian judges, jurors, and courts from terrorist threats and assure the

security of the trial itself, Federal rules of evidence often prevent

the introduction of valid factual evidence for public-policy reasons

that have no application in a trial of a foreign terrorist, third, military commissions can allow the use of classified information without endangering sources and methods—every one of those, I would

argue, on first impression this morning, argues for Mr. Moussaoui

to be brought before a military tribunal. So I find this a troubling

decision, and I wonder if you could reassure me.

I mean, this guy, to use the parlance of the regular criminal

courts of the United States, is a ‘‘big fish,’’ and I fear that the decision to try him in the Federal district courts of the United States,

with all the rights of evidence and rules of evidence and rights of

due process, may let this big fish get away. The other 19 criminals

who carried out these acts are dead. We happen to have grabbed

this guy, and, I don’t want the rules of hearsay to be applied to this

case. He doesn’t deserve the rules of hearsay to be applied to him

or any of the other rights that citizens of the United States have

when accused of a crime.

So I am troubled, and I wonder—I suppose I ought to ask the direct question, whether the Department of Defense was consulted

before the decision was made by the Justice Department to try

Zacarias Moussaoui in the Federal district courts?

Secretary WOLFOWITZ. We were not, Senator, and so I probably

should be careful not to speculate about the considerations. But it

does seem to me that presumably the decision by the Justice Department to indict Mr. Moussaoui in a civil court is an indication

that they believe they did not have, for example, the problem that

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I mentioned of evidence, important evidence that might not be admitted under normal rules of procedure or the problem of relying

on classified evidence, and that they could probably convict this

man in the civil court.

Remember, the goal of these military tribunals is to be able to

have full and fair trials and defend the United States. I think

there’s more than one instrument for achieving that. The President

has made it clear there may be circumstances in which this one is

necessary. I wouldn’t want to go further.

Senator LIEBERMAN. I suppose I’m relieved to hear that the Department of Defense wasn’t involved in this decision. As I said, I

think it goes beyond reassuring us and takes an enormous risk

with the only person we have in our hands right now who, in my

opinion, based on the evidence I’ve read, was directly involved in

preparing to carry out the attacks of September 11. I think it takes

a large risk to bring him before the district court, with all the

rights that he would have there, that he doesn’t deserve, frankly.

Mr. Haynes, I’m sorry, did you have a comment?

Mr. HAYNES. Well, Senator, we don’t know everything the Department of Justice knows. I actually think that you might draw

some comfort from the fact that this may be an illustration of how

carefully the President intends to employ this tool that he has created in this military order.

The man that you’re describing was apprehended before September 11. He is in the criminal justice system in the Article III Criminal Justice System. Unless the President makes a specific written

determination that he should be subject to the order under those

terms and that it is in the National interest or the interest of the

United States to provide him to the Secretary of Defense, then he

should stay there. But we are unable to comment on what evidence

they may have.

Senator LIEBERMAN. My time is up. I thank you both.

Chairman LEVIN. We have to conclude now, under the Senate

rules. There has been an objection filed, and we have no alternative

but to adjourn this hearing.

I want to just conclude, though, with a follow-up to Senator

Lieberman’s question. Was the Secretary of Defense, or the Defense

Department, consulted on the drafting of the Presidential order

prior to its being issued?

Secretary WOLFOWITZ. Yes, we were.

Chairman LEVIN. You were involved in the drafting?

Secretary WOLFOWITZ. We were consulted on it.

Mr. HAYNES. We were consulted, but I don’t think we can comment on what advice we gave.

Chairman LEVIN. I’m not asking for that. Did you give advice on

the order? I’m not asking what it was. I’m just asking whether you

gave advice?

Mr. HAYNES. Our views were consulted.

Chairman LEVIN. Senator Lieberman has raised an important

point on Mr. Moussaoui. I must say, I am not reassured that you

weren’t consulted. It is hard to imagine that in a matter that fits

the military tribunal order the way the Moussaoui case appears to

fit it, you weren’t consulted because then you’ll be applying these

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criteria in other cases which are very similar or maybe the same

as Moussaoui’s case. So I’m kind of amazed you weren’t consulted.

Senator LIEBERMAN. Senator Levin, if I may, I would accept your

amendment. I guess I was speaking more directly to Secretary

Wolfowitz, who I have such a high regard for, and I didn’t want

to believe that he was consulted before this decision was made. But

you are absolutely right. It is wrong not to have consulted the Department of Defense because we are at war and Moussaoui is a war

criminal. He was a soldier who attacked American civilians, and

therefore, I hope the Department of Defense will be consulted in

each and every future decision of this kind that is made.

Chairman LEVIN. Secretary Wolfowitz, when I left here to go to

vote, I was asked by many members of the press whether the decision has been made to withdraw from the ABM Treaty. That was

the question I was asked most often by members of the press. Has

the decision been made to withdraw from the ABM Treaty?

Secretary WOLFOWITZ. Senator, I think the President and the

Secretary of State and Secretary of Defense have made it clear——

Chairman LEVIN. I understand. Has the decision been made to

withdraw?

Secretary WOLFOWITZ. As far as I know, Senator, no final decision has been made yet.

Chairman LEVIN. Has not been?

Secretary WOLFOWITZ. As far as I know, no final decision has

been made yet.

Chairman LEVIN. Under the rules of the Senate, we are required

to adjourn. We will come back again, because the hearing is not

completed, but we have no alternative, under Senate rules now, but

to stop exactly where we are. So the hearing will stand in recess.

[The prepared statements of Senators Akaka and Thurmond follow:]

PREPARED STATEMENT BY SENATOR DANIEL K. AKAKA

Thank you, Mr. Chairman. I thank you for holding this hearing and I appreciate

Deputy Secretary Wolfowitz and Mr. Haynes for taking the time to join us this

morning. It is well within the President’s authority to convene military commissions. The terrorist attacks on September 11, 2001, were acts of war. Military tribunals have been utilized many times during our country’s history. I am interested,

however, in how the Department plans to implement the military order on November 13, 2001, to ensure fairness and justice.

PREPARED STATEMENT BY SENATOR STROM THURMOND

I welcome the opportunity to hear from our distinguished panel on how the Department of Defense plans to implement the President’s order on the detention,

treatment, and trial by military commissions of certain non-citizens in the war on

terrorism. Hopefully, today’s hearing will clear up the misconceptions held by individuals in this country and the rest of the world on the role of the Military Commission.

Mr. Chairman, I support President Bush’s military order. Not only is the President’s order historically based, but it was issued pursuant to current law. Military

commissions are rooted in American history, from the trial of deserters in the Mexican-American War to the trial of President Lincoln’s assassins, to the trials of Nazi

saboteurs during World War II. Congress has recognized the role of the military

commissions by codifying their use in Title 10 of the United States Code.

Military commissions to try non-citizens are also good ideas as a matter of policy.

These commissions would allow for the use of classified information, while protecting it from inadvertent release. They would protect the identity of witnesses and

other trial participants. They allow for more flexible rules of evidence to take into

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consideration the fog of war. What they do not allow is the miscarriage of justice

and that should be the focus of today’s hearing.

Mr. Chairman, those responsible for the deaths of the thousands of innocent victims at the World Trade Center and the Pentagon acted outside the norms of the

civilized world. Their deeds were an act of war! The President’s executive order, providing for the detention and possible trial of terrorists in military courts, recognizes

this and is an appropriate response to the events of September 11, 2001.

Thank you, Mr. Chairman.

[Questions for the record with answers supplied follow:]

QUESTIONS SUBMITTED BY SENATOR CARL LEVIN

CHAIN OF COMMAND

1. Senator LEVIN. Secretary Wolfowitz, both the Department of Defense and the

Department of Justice have acknowledged the authority of the Secretary of Defense

to prescribe appellate procedures for the military commissions. Both Departments

have also acknowledged that habeas corpus is available only to an individual tried

by a military commission in the United States. That leaves individuals tried by a

commission outside the United States without a right to appeal to an independent

entity unless it’s specifically provided for in the regulations. The right to such appeal becomes more important if the military commissions are comprised only of persons in the military chain of command, because in that case the accuser and the

trier are blended into one. If the death penalty is an option, the situation becomes

of greater import. Courts-martial, which are heard by uniformed personnel within

the chain of command, provide for appeal to the U.S. Court of Appeals for the

Armed Services, an independent entity outside the chain of command. It also allows

for final appeal by certiorari to the U.S. Supreme Court. The issue of the independence of the tribunal and an outside appeal are related. What are your thoughts on

the need for the inclusion of individuals outside of the chain of command in the composition of the military commission?

Secretary WOLFOWITZ. DOD continues to consider a full range of options regarding who will be eligible to participate on military commissions. Although Secretary

Rumsfeld has not yet made a determination regarding the final implementation procedures, his goal is to ensure that every military commission will comply with the

President’s directive to provide a ‘‘full and fair trial,’’ and will reflect our Nation’s

commitment and dedication to uphold the highest traditions of the law.

2. Senator LEVIN. Secretary Wolfowitz, what are your thoughts on the need for

appeal to an independent entity, particularly if the military commissions are comprised only of persons in the chain of command?

Secretary WOLFOWITZ. DOD is committed to providing appropriate review of military commission decisions. To achieve this end, DOD is reviewing past and present

domestic and international tribunals for appropriate models.

CONSULTATION

3. Senator LEVIN. Secretary Wolfowitz, in your testimony before the committee,

you said the Department is consulting a wide array of individuals and experts, in

and out of government, to discuss how military commissions should operate. Please

identify all persons and entities the Department has consulted and explain how you

selected such persons and entities.

Secretary WOLFOWITZ. A number of Members of Congress have contacted DOD to

express their views regarding how military commissions should operate. Additionally, DOD has received candid and confidential suggestions from a considerable

number of individuals and organizations, inside and outside government, to ensure

the final implementation procedures meet our present needs in the ongoing war

against terrorism and uphold our values and commitment to the rule of law. Among

the individuals outside government who have been consulted are: Judge Griffin B.

Bell; Hon. William T. Coleman; Lloyd N. Cutler; Hon. Martin R. Hoffman, Professor

Bernard D. Meltzer; Hon. Newton N. Minow; Hon. Terrence O’Donnell; Judge William H. Webster; and Professor Ruth Wedgwood. These individuals were selected for

their experience and their range of views. Additionally, a large number of organizations outside government have forwarded unsolicited recommendations, including:

the American Bar Association; the American Civil Liberties Union; the American

Jewish Committee; Amnesty International; the Association of the Bar of the City

of New York, Standing Committee on Military Affairs and Justice; the Bar AssociaVerDate 11-SEP-98 14:39 Jun 24, 2002 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6621 80293.101 SARMSER2 PsN: SARMSER2
74

tion of the District of Columbia; the Center for National Security Studies; the Committee to Protect Journalists; Defender Legal Services; Human Rights Watch; the

Lawyers Committee for Human Rights; the National Association of Criminal Defense Lawyers; the National Institute of Military Justice; the Nuremberg Legacy

Project; and the Robert F. Kennedy Memorial Center for Human Rights.

DEATH PENALTY

4. Senator LEVIN. Secretary Wolfowitz, in your testimony before the Committee,

you stated that you are confident that the Department will develop a process that

Americans will have confidence in and which is fully consistent with the principles

of justice and fairness our country is known for throughout the world. However, the

President’s Order treats death and imprisonment in the same way. Both can be imposed with a two-third’s majority of a quorum of the members of the commission.

In the case of a five member commission—it’s conceivable, albeit highly unlikely,

that the death sentence could be invoked with only two members of the commission

voting for it. We are already hearing from some of our allies that they may not extradite suspects to the United States if they face the death penalty under any circumstances. Doesn’t the absence of a requirement for a unanimous verdict for a

death penalty in the order make that more likely?

Secretary WOLFOWITZ. Secretary Rumsfeld is still deliberating regarding the final

implementation procedures, including issues related to capital punishment. While

the United States and some allied governments have differing perspectives on this

sensitive issue, DOD is working closely with the Departments of State, Justice, and

others to build upon our very successful effort to achieve a broad coalition of nations

committed to defeating terrorism.

5. Senator LEVIN. Secretary Wolfowitz, shouldn’t the imposition of the death penalty require a unanimous verdict?

Secretary WOLFOWITZ. Secretary Rumsfeld is still deliberating regarding that decision.

6. Senator LEVIN. Secretary Wolfowitz, the order leaves open the possibility that

a death penalty could be imposed based on only a preponderance of the evidence.

That could mean a sentence to death based on only 51 percent of the evidence. Do

you think it meets our standards of justice and fairness to have a death sentence

imposed on a preponderance of the evidence?

Secretary WOLFOWITZ. Every military commission will comply with the President’s

directive to provide a ‘‘full and fair trial.’’ Secretary Rumsfeld is still deliberating

regarding procedures relating to imposition of the death penalty.

EXECUTIVE REVIEW

7. Senator LEVIN. Secretary Wolfowitz, the President’s Military Order provides

that the Secretary shall issue such orders and regulations as may be necessary to

carry out any of the provisions of the order. Will there be any review within the

executive branch of such orders and regulations prior to their issuance?

Secretary WOLFOWITZ. Yes. DOD is coordinating closely with a number of other

agencies involved in protecting our national security.

TRIAL RULES

8. Senator LEVIN. Secretary Wolfowitz, will the same rules and procedures apply

to all individuals who are designated for trial by military commissions or will there

be different rules and procedures for different individuals?

Secretary WOLFOWITZ. DOD is considering a uniform set of procedures at this

time.

9. Senator LEVIN. Secretary Wolfowitz, will the orders and regulations be proposed for comment before promulgation?

Secretary WOLFOWITZ. Secretary Rumsfeld is still deliberating regarding that decision.

10. Senator LEVIN. Secretary Wolfowitz, the suggestion has been made that once

the Department has drafted the orders and regulations implementing the President’s Military Order that they be made available to Congress for a limited period

of time—say 10 to 15 working days—before they are formally promulgated, to give

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Congress the opportunity to comment. What is your position with respect to that

suggestion?

Secretary WOLFOWITZ. DOD is committed to working closely with Congress to ensure every military commission convened pursuant to the President’s Military Order

reflects our Nation’s values.

MILITARY JUSTICE

11. Senator LEVIN. Mr. Haynes, the President’s Counsel has likened the military

commissions to the military justice system. During the Committee’s hearing, one

member said that if the Uniform Code of Military Justice is good enough for our

soldiers, it is good enough for the terrorists. There is obviously confusion about this.

The President has determined that it is impractical to apply the principles of law

and rules of evidence generally recognized in the trial of criminal cases in U.S. district courts. Since those district court principles and rules are so similar to those

in the military justice system, it’s expected that there will be significant differences

between the military commissions and the military justice system. Do you agree

there will be significant differences between military commissions and the military

justice system and that they shouldn’t be equated?

Mr. HAYNES. Certainly there are significant differences between military commissions and the military justice system. While both are dedicated to securing justice,

the differences are manifest and the two should not be equated.

12. Senator LEVIN. Mr. Haynes, please explain what you believe the key differences will be between trials at court-martial within the military justice system

and trials before military commissions.

Mr. HAYNES. Although it is likely that there may be any number of differences

between courts-martial and military commissions, the key difference known at this

time is that military commissions will only be convened for those individuals defined

in Section 2 of the President’s Military Order.

QUESTION SUBMITTED BY SENATOR DANIEL K. AKAKA

PACIFIC LOCATION

13. Senator AKAKA. Secretary Wolfowitz, the media has reported that the Department of Defense is considering a site in the Pacific for a military tribunal. Has there

been any discussion about the prospect of conducting a tribunal or detaining suspected terrorists in the Pacific, either on Guam, Wake Island, any other U.S. possession, or a U.S. Pacific military base like Kwajolein Atoll in the Republic of the Marshall Islands?

Secretary WOLFOWITZ. Secretary Rumsfeld has not made any decision regarding

detention or trial of suspected terrorists in the Pacific region at this time.

QUESTIONS SUBMITTED BY SENATOR STROM THURMOND

VALUE OF MILITARY COMMISSION

14. Senator THURMOND. Secretary Wolfowitz, although there is no doubt that the

President has the authority to establish Military Commission (sic), there is a question on the benefit of these commissions in regard to our Nation’s image throughout

the World. What do you consider the over riding value of these military commissions?

Secretary WOLFOWITZ. Military commissions are a vital tool in the ongoing war

against terrorism because they provide our Nation with a means to protect our citizens, our allies, and other cooperating nations from further terrorist attacks. They

help us to identify terrorists and those who support them, to disrupt their activities,

and to eliminate their ability to conduct or support such attacks. They offer a path

to achieve justice during a time when an extraordinary emergency exists for national defense purposes.

SCOPE OF TRIBUNALS

15. Senator THURMOND. Secretary Wolfowitz, in testimony before the Senate Judiciary Committee, Attorney General Ashcroft stated that the scope of offenses to be

considered by the tribunals would be limited to war crimes. Do you agree with this

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statement? If so what is (sic) definition of war crimes that will apply in this instance?

Secretary WOLFOWITZ. Secretary Rumsfeld is still deliberating regarding the scope

of offenses to be considered by military commissions.

REFERRAL TO MILITARY TRIBUNAL

16. Senator THURMOND. Secretary Wolfowitz, who other than the President will

make the determination that an individual will be tried before the military tribunal?

Secretary WOLFOWITZ. Consistent with his Military Order, the President is responsible for determining if an individual is subject to the Order and thus may be

tried by military commission.

UNIFORM CODE OF MILITARY JUSTICE

17. Senator THURMOND. Mr. Haynes, Section 802 of Title 10, United States Code

makes prisoners of war in the custody of the Armed Forces subject to the Uniform

Code of Military Justice. Section 918 states that such person who commits murder

‘‘shall suffer death or imprisonment for life as a courts martial may direct. ’’ Do you

intend to impose this standard on the military tribunal?

Mr. HAYNES. Secretary Rumsfeld is still deliberating regarding that decision.

BURDEN OF PROOF

18. Senator THURMOND. Mr. Haynes, what do you foresee as the burden of proof

for conviction in military tribunals? Will proof beyond a reasonable doubt be too

high a burden to impose on prosecutors? Will the burden of proof be higher than

a preponderance of the evidence standard?

Mr. HAYNES. Secretary Rumsfeld is still deliberating regarding that decision.

STRUCTURE OF TRIBUNAL

19. Senator THURMOND. Mr. Haynes, how will you structure the military tribunal?

Will members of the tribunal decide matters of fact and matters of law? Or will the

tribunal be composed of a judge and jurors in a system analogous to American civil

and criminal courts?

Mr. HAYNES. Secretary Rumsfeld is still deliberating regarding that decision.

CLASSIFIED INFORMATION

20. Senator THURMOND. Mr. Haynes, how will classified information be handled?

Specifically, in what ways will the procedure differ from the use of classified material in the Federal courts under the Classified Information Procedures Act (18

U.S.C. app. 3)?

Mr. HAYNES. The Classified Information Procedures Act is a highly useful, important law that DOD is reviewing very closely. Secretary Rumsfeld is still deliberating

with respect to the specific procedures for handling information, however.

QUESTIONS SUBMITTED BY SENATOR RICK SANTORUM

EXTRADITION

21. Senator SANTORUM. Secretary Wolfowitz, recently, several European Union

countries have expressed concern with the President’s order on the use of military

tribunals. Spain, for example, has abolished the death penalty and bars extradition

of suspects who could be executed overseas. What steps is the administration willing

to take in the event that an ally refuses to extradite or turn over a suspect to face

a military tribunal?

Secretary WOLFOWITZ. As noted previously, DOD is working closely with the Departments of State, Justice, and others to build upon our very successful effort to

achieve a broad coalition of nations committed to defeating terrorism. Some allied

governments have differing views on the issue of capital punishment, and we respect such views.

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22. Senator SANTORUM. Secretary Wolfowitz, Secretary of Defense Donald Rumsfeld indicated that it might not be necessary to bring certain terrorists to justice

if arrangements could be worked out with other governments willing to put these

individuals on trial and ensure punishment. How does this statement apply to an

ally or state that does not permit the use of the death penalty?

Secretary WOLFOWITZ. Any such case undoubtedly will present a unique set of circumstances and facts. DOD’s response would have to be tailored to fit the unique

circumstances and facts presented.

CONSTITUTIONAL PROTECTION

23. Senator SANTORUM. Secretary Wolfowitz, the Fifth Amendment guarantees the

right to grand jury review prior to indictment, prohibits double jeopardy, protects

against compulsory self-incrimination, and guarantees due process of law. The Sixth

Amendment provides for the defendant to be afforded a speedy and public trial, to

have the benefit of an impartial jury venued where the crime was committed, to be

informed of the accusations against him, to be confronted by witnesses against him,

to be able to use compulsory process to obtain favorable witnesses, and to have the

assistance of counsel. Do you believe that these Amendments are at all applicable

to a military tribunal, in the event that a tribunal is convened?

Secretary WOLFOWITZ. Although an individual subject to the President’s Military

Order is not entitled Fifth and Sixth Amendment protections in U.S. courts, Secretary Rumsfeld is committed to providing every such individual with appropriate

due process rights sufficient to comply with the President’s directive to provide a

‘‘full and fair trial.’’

24. Senator SANTORUM. Secretary Wolfowitz, while these are military trials and

the accused are not U.S. citizens, some of the accused may be permanent residents.

Do you feel it is appropriate to establish rules and procedures that closely follow

the Fifth and Sixth Amendments?

Secretary WOLFOWITZ. As noted in the response to the preceding question, Secretary Rumsfeld is committed to providing every individual subject to the President’s Military Order with appropriate due process rights. Our military commissions

will be a beacon of fairness and a source of great pride for all Americans.

[Whereupon at 11:56 a.m., the committee adjourned.]

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