U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

i 

58–225 2010

[H.A.S.C. No. 111–81] 

PROSECUTING LAW OF WAR VIOLATIONS: 

REFORMING THE MILITARY COMMISSIONS ACT OF 2006 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

HEARING HELD 

JULY 16, 2009 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED ELEVENTH CONGRESS

IKE SKELTON, Missouri, Chairman 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

JAMES R. LANGEVIN, Rhode Island 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

MADELEINE Z. BORDALLO, Guam 

BRAD ELLSWORTH, Indiana 

PATRICK J. MURPHY, Pennsylvania 

HANK JOHNSON, Georgia 

CAROL SHEA-PORTER, New Hampshire 

JOE COURTNEY, Connecticut 

DAVID LOEBSACK, Iowa 

JOE SESTAK, Pennsylvania 

GABRIELLE GIFFORDS, Arizona 

NIKI TSONGAS, Massachusetts 

GLENN NYE, Virginia 

CHELLIE PINGREE, Maine 

LARRY KISSELL, North Carolina 

MARTIN HEINRICH, New Mexico 

FRANK M. KRATOVIL, JR., Maryland 

ERIC J.J. MASSA, New York 

BOBBY BRIGHT, Alabama 

SCOTT MURPHY, New York 

DAN BOREN, Oklahoma 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

ROSCOE G. BARTLETT, Maryland 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

ROB BISHOP, Utah 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

CATHY MCMORRIS RODGERS, Washington 

K. MICHAEL CONAWAY, Texas 

DOUG LAMBORN, Colorado 

ROB WITTMAN, Virginia 

MARY FALLIN, Oklahoma 

DUNCAN HUNTER, California 

JOHN C. FLEMING, Louisiana 

MIKE COFFMAN, Colorado 

THOMAS J. ROONEY, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

ERIN C. CONATON, Staff Director 

PAUL OOSTBURG SANZ, General Counsel 

ROGER ZAKHEIM, Professional Staff Member 

CATERINA DUTTO, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2009 

Page 

HEARING: 

Thursday, July 16, 2009, Prosecuting Law of War Violations: Reforming the 

Military Commissions Act of 2006 ...................................................................... 1 

APPENDIX: 

Thursday, July 16, 2009 .......................................................................................... 35 

THURSDAY, JULY 16, 2009 

PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE 

MILITARY COMMISSIONS ACT OF 2006 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

McKeon, Hon. Howard P. ‘‘Buck,’’ a Representative from California, Ranking 

Member, Committee on Armed Services ............................................................ 2 

Skelton, Hon. Ike, a Representative from Missouri, Chairman, Committee 

on Armed Services ................................................................................................ 1 

WITNESSES 

Black, Lt. Gen. Scott C., USA, The Judge Advocate General, U.S. Army .......... 4 

MacDonald, Vice Adm. Bruce E., USN, The Judge Advocate General, U.S. 

Navy ...................................................................................................................... 5 

Rives, Lt. Gen. Jack L., USAF, The Judge Advocate General, U.S. Air Force ... 5 

Walker, Brig. Gen. James C., USMC, Staff Judge Advocate to the Commandant, U.S. Marine Corps .............................................................................. 7 

APPENDIX 

PREPARED STATEMENTS: 

Black, Lt. Gen. Scott C. ................................................................................... 39 

MacDonald, Vice Adm. Bruce E. ..................................................................... 45 

Rives, Lt. Gen. Jack L. ..................................................................................... 51 

Walker, Brig. Gen. James C. ........................................................................... 57 

DOCUMENTS SUBMITTED FOR THE RECORD: 

[There were no Documents submitted.] 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

Dr. Snyder ......................................................................................................... 65 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. Skelton ....................................................................................................... 69 

(1) 

PROSECUTING LAW OF WAR VIOLATIONS: REFORMING 

THE MILITARY COMMISSIONS ACT OF 2006 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Thursday, July 16, 2009. 

The committee met, pursuant to call, at 2:04 p.m., in room 2118, 

Rayburn House Office Building, Hon. Ike Skelton (chairman of the 

committee) presiding. 

OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI, CHAIRMAN, COMMITTEE ON ARMED 

SERVICES 

The CHAIRMAN. The committee will come to order. 

Since the 109th Congress deliberated and passed the Military 

Commissions Act of 2006, I have argued that the most important 

task before us has been to design a system that would withstand 

legal scrutiny and would be found to be constitutional. I doubted 

at the time and still believe that the current system could survive 

a Supreme Court review. By my estimation, there are at least 

seven potential defects in this act. 

First, the Supreme Court has already held in Boumediene that 

the Military Commissions Act constitutionally stripped Federal 

courts of jurisdiction over habeas corpus. 

Relatedly, the act may violate the exceptions clause under Article 

III of the Constitution by impermissibly restricting the Supreme 

Court’s review. 

Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter 

of the Geneva Convention. 

Fourth, the provisions regarding the coerced testimony may be 

challenged under our Constitution. 

Fifth, the act contains very lenient hearsay rules which rub up 

against the right of the accused to confront witnesses. 

Sixth, the act may be challenged under equal protection and 

other Constitutional grounds for how it discriminates against the 

detainees for being aliens. 

Lastly, Article I of the Constitution prohibits ex post facto laws; 

that is, what this act may have created. 

At the President’s instruction, the Administration is conducting 

an inter-agency review of detainee policy. This inter-agency task 

force should be recommending reforms to the military commissions 

law. Already, the Administration has commented on the suggested 

amendments to the Military Commissions Act that our colleagues 

in the Senate Armed Services Committee include in their National 

Defense Authorization bill; and I invite each of our witnesses to 
2 

provide their assessment of whether the Senate bill has gone far 

enough to correct the potential constitutional infirmities or not. 

The bottom line is that we must prosecute those who are terrorists with the full force of the law, but we must also make sure that 

the convictions stick. Certainty of convictions must go hand in 

hand with tough prosecutions. And being a former prosecutor in my 

home county, the worst thing that one anticipates or could anticipate is a Supreme Court freeing someone that a jury in your home 

county convicted. Permitting hardened terrorists to escape jail time 

because we didn’t do our jobs here in Congress to fix this act would 

be a travesty of justice. 

Now, I turn to my good friend and colleague, the gentleman from 

California, Mr. McKeon. 

STATEMENT OF HON. HOWARD P. ‘‘BUCK’’ MCKEON, A REPRESENTATIVE FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES 

Mr. MCKEON. Thank you, Mr. Chairman. Thank you for holding 

a hearing on such an important topic: prosecuting terrorists for law 

of war violations through the Military Commissions Act of 2006, or 

MCA. 

Let me also begin by welcoming to the committee our witnesses, 

the Judge Advocate Generals for each of the services. Gentlemen, 

good afternoon. And thank you for being here. 

Before we jump into the heart of today’s hearing, the Military 

Commissions Act, I just want to note that we have another hearing 

next week with senior Department of Defense and Department of 

Justice officials on the Administration’s overall detainee policy. At 

that hearing, I look forward to discussing the President’s plan for 

a preventive detention system and the findings of the Detainee 

Task Force on a detainee policy which, pursuant to the executive 

orders, is due to complete its work next week. 

In my view, the 2006 MCA was a fair piece of legislation and a 

product of careful negotiations between the House, Senate, and the 

previous Administration. In that light, I welcome President 

Obama’s decision to use military commissions as a tool for prosecuting those who violate the laws of war. 

In his speech at the National Archives on May 21, the President 

recognized correctly that we are at war with al Qaeda and its affiliates, and that commissions are an appropriate forum for prosecuting those who violate the laws of war. 

The President rightly noted that military commissions have a 

long history of protecting sensitive intelligence sources and methods, while allowing for the introduction of evidence unique to battlefield contingencies. 

It is worth recalling that the 2006 MCA passed the House and 

Senate by a comfortable vote with bipartisan support. Yet the 2006 

MCA, like any other law, is not perfect and could use improvement, 

especially now that we have the benefit of seeing the system in 

practice. 

I hope that during today’s hearing, each of you will share your 

independent view on the legislation proposed by the Senate Armed 

Services Committee (SASC) to amend the 2006 MCA. I understand 

the committee language is the product of a bipartisan effort and 
3 

enjoys the support of Senators McCain and Graham, but I would 

like to hear if you have any suggestions or concerns with respect 

to the proposal and whether you feel there are any steps that Congress should take to ensure we have an effective military commissions system. 

Finally, I would also like to ask you to hear your thoughts on the 

Administration’s proposed changes to the SASC language. 

After looking at both the Senate and White House proposals, I 

have a number of questions and concerns I hope you will be able 

to address today. My first concern is forum choice. If we are going 

to utilize the military commissions, we need to ensure that any 

changes to the framework make the commissions more efficient 

and bring swift justice to terrorists. 

While the commissions have only convicted three individuals, at 

least 19 other detainees have charges currently pending and at 

least another 40 could be charged as well. 

Let me be clear on one point. I think we should use the military 

commissions to try all detainees who have violated the laws of war. 

I also have grave concerns about the President’s preference to 

use Article III courts to try some of the detainees currently being 

held in Guantanamo Bay. In my view, trials of terrorists need to 

stay within the paradigm of armed conflict. The required procedures and rules of evidence in Federal courts are not fit for trials 

in the armed conflict paradigm. Most importantly, prosecuting 

some detainees in Federal courts and others in commissions, in the 

absence of clear criteria guiding this decision, will lead to the perception that commissions are an inferior system or a kangaroo 

court. This is an unacceptable outcome and dishonors the uniformed personnel working on military commissions. 

A related concern that I hope you will discuss is where we intend 

to hold these commissions. I would like to know how, if at all, the 

MCA and rules for military commissions may need to change if the 

Administration decides to hold commissions within the continental 

United States. 

I look forward to your testimony, and hope that the discussion 

we have today will help us work with the Senate to improve the 

2006 MCA so that the Administration will use the MCA framework 

to bring terrorists to justice. I yield back. 

The CHAIRMAN. I thank the gentleman. 

Before us today our witnesses are, from my left to right, Lieutenant General Scott Black, Judge Advocate General, United States 

Army; Vice Admiral Bruce MacDonald, Judge Advocate General of 

the United States Navy; Lieutenant General Jack—is it Reeves or 

Rive?—Rives, Lieutenant General Jack Rives, United States Air 

Force Judge Advocate General; and Brigadier General James Walker, United States Marine Corps, Judge Advocate to the Commandant of the Marine Corps. 

We thank you gentlemen for being with us today. We will go 

down the line. 

General Black, you are on. 
4 

STATEMENT OF LT. GEN. SCOTT C. BLACK, USA, THE JUDGE 

ADVOCATE GENERAL, U.S. ARMY 

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

McKeon, members of the committee. I would like to thank you for 

the opportunity to appear here today for the committee’s consideration of these important issues. I join in endorsing and encouraging 

continued congressional and Administration efforts to reform military commissions for the trial of unprivileged belligerents accused 

of violations of the law of war during our country’s ongoing conflict 

against those who planned and conducted the attacks against us on 

September 11, 2001, as well as those detained during the conduct 

of associated military and intelligence operations. 

I am confident that this reform effort will result in a system that 

meets the standards for military commissions described by the Supreme Court in Hamdan v. Rumsfeld. I am similarly confident that 

such reforms of military commissions will satisfy any outstanding 

concerns relative to our demand for a system characterized by our 

proper devotion to standards of due process recognized under the 

law of war, our commitment to ensuring fair treatment of the accused, and reliable results in any commission proceeding. 

I offer the following comments in relation to a few specific proposals found in the Senate version of the act. 

First, I understand that the Administration favors adoption of a 

voluntariness standard on the admissibility of statements into evidence. I acknowledge and respect the prerogative of the Administration to resolve policy on all such matters, but maintain my recommendation against adoption of a voluntariness standard and in 

favor of a reliability standard where voluntariness is a relevant factor in resolving whether statements warrant admission at a commission trial. 

Second, I support the Administration’s proposal to adopt the 

most recent developments in federal practice under the Classified 

Information Procedures Act for application to trial by military commissions in this context. 

Third, I disagree with the Senate’s proposal to establish the 

Court of Appeals for the Armed Forces as an intermediate court of 

appeals for those convicted by military commissions. I favor instead 

the Administration proposal to modify the responsibility and authority of the Court of Military Commission Review by infusing 

that court with the same responsibility and authority of our service 

courts of criminal appeals under Article 66 of the Uniformed Code 

of Military Justice. 

I believe you have a copy of the balance of my full statement for 

inclusion in the record, Mr. Chairman. 

As an aside, I would like to offer my thanks to this committee 

for their hard work and tremendous support for soldiers and their 

families. I can assure you that we are deeply grateful for both. And 

with that, sir, I look forward to your questions. 

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

Appendix on page 39.] 

The CHAIRMAN. Admiral, please. 
5 

STATEMENT OF VICE ADM. BRUCE E. MACDONALD, USN, THE 

JUDGE ADVOCATE GENERAL, U.S. NAVY 

Admiral MACDONALD. Thank you, Mr. Chairman. Chairman 

Skelton, Ranking Member McKeon, and members of the committee, 

thank you very much for providing me the opportunity to present 

my views on military commissions. 

In 2006, Congress enacted the Military Commissions Act. This 

act established the jurisdiction of commissions, set baseline standards for their operation, and prescribed substantive offenses. The 

act also authorized the Secretary of Defense to promulgate procedural and evidentiary rules to be used in military commissions and 

to establish the elements of the substantive offenses. Those rules 

were completed in early 2007, and additional rules were recently 

promulgated by the Secretary of Defense on May 15 of this year 

and became effective on July 13th of this year. 

The current framework, in my opinion, provides an appropriate 

balance that ensures important rights and protections for an accused while also providing the government with an effective means 

of prosecuting an accused before a military commission. Nevertheless, there is room for improvement in a number of areas. Some examples include the rules relating to classified evidence, the admissibility of hearsay evidence and statements of the accused, information that must be disclosed to the accused, and the type of review 

to be applied during the appellate process. 

I recently testified before the Senate Armed Services Committee 

on its proposal that would, in my view, fix many of these issues, 

but I recommended that additional changes be considered. Regardless of the method used to revise the Military Commissions Act, the 

first step toward the needed changes is establishing an open dialogue to share views on these issues. 

In September 2006, when we last testified before this committee, 

it was the view of the Judge Advocates General that whatever 

process was eventually established should be tested against two 

standards: First, it must be consistent with our Nation’s notions of 

justice and fairness. Second, we must be willing to have our own 

service members tried under the same standards and procedures 

that we apply. Those standards should continue to inform our discussion today as we consider changes to the Military Commissions 

Act. For that reason, I commend your efforts and thank you very 

much for the opportunity to appear before you this afternoon, and 

I look forward to answering your questions. 

[The prepared statement of Admiral MacDonald can be found in 

the Appendix on page 45.] 

Mr. ORTIZ [presiding]. General Rives. 

STATEMENT OF LT. GEN. JACK L. RIVES, USAF, THE JUDGE 

ADVOCATE GENERAL, U.S. AIR FORCE 

General RIVES. Mr. Chairman, Ranking Member McKeon, members of the Armed Services Committee, good afternoon, and thank 

you for this opportunity to testify today on the subject of military 

commissions. I would like to emphasize that the views expressed 

in my testimony are my own and do not represent the views of the 

Department of Defense or the Administration. 
6 

Military commissions have a long history in this country as a 

mechanism to address possible violations in the law of war. Military commissions were used extensively during and after World 

War II, and they were again called upon in the aftermath of the 

September 11, 2001 attacks. After action by the Executive and review by the Supreme Court, the Congress acted in 2006 to pass the 

Military Commissions Act, providing the President statutory authority to establish military commissions to try traditional offenses 

as codified in the Military Commissions Act. 

The effort to make military commissions more fair and credible 

enhances national security by providing effective alternatives to try 

international terrorists who violate the law of war. Periodic review 

of the military commissions legislation and procedures is vital to an 

effective and fair commission process. 

As required by the Military Commissions Act, the Secretary of 

Defense notified the Congress in May of this year of proposed 

changes to the Manual for Military Commissions affecting procedures used by the military commissions. Those amendments will 

improve the military commissions process. 

As a result of those changes, statements obtained using interrogation methods that constitute cruel, inhuman, and degrading 

treatment cannot be admitted as evidence at trial. The burden of 

proof on admissibility of hearsay will shift to the party that offers 

it. The burden will no longer be on the party that objects to hearsay to disprove its reliability. 

The accused will have greater latitude in selecting defense counsel. In situations where the accused elects not to testify but offers 

his own prior hearsay statements, the military judge will no longer 

be required to instruct the members to consider the accused’s decision not to be cross-examined on the hearsay statements and that 

the statements are not sworn. Any such instruction will now be left 

to the discretion of the military judge. 

Military judges may establish the jurisdiction of their own courts. 

Under prior practice, jurisdiction for a military commission to hear 

a case was established by a prior combatant status review tribunal. 

Further review, of course, is ongoing within the Administration. 

Changes to the Military Commissions Act of 2006 have also been 

advanced by the Senate Armed Services Committee. Some of the 

recommendations include making the changes that I have just 

mentioned statutory. Additional changes are also appropriate. I 

highlight two for your consideration. 

First, reforms in the rules for handling classified information 

would have significant impact. Procedures that follow the Classified Information Procedures Act (CIPA) would, with appropriate 

modification, balance the government’s need to protect classified information with the defendant’s interests. The substantial body of 

that case law that has developed over the years would provide valuable guidance to lawyers and the commissions. 

Next, expanding the scope of appellate review to include review 

of factual matters, as the service courts of criminal appeals enjoy 

under Article 66 of the Uniform Code of Military Justice, is desirable. Also retention of the current Court of Military Commissions 

Review, which is comprised in whole or in part of those with the 

experience as military appellate judges who are comfortable re-
7 

viewing cases for both factual and legal sufficiency, is logical and 

efficient. 

I encourage you to closely consider these revisions, and I stand 

ready to assist, as appropriate, in your efforts. You have a copy of 

my full statement for inclusion in the record. Again, I thank you 

for the opportunity to testify, and I look forward to answering your 

questions. 

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

Appendix on page 51.] 

Mr. ORTIZ. General Walker. 

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

JUDGE ADVOCATE TO THE COMMANDANT, U.S. MARINE 

CORPS 

General WALKER. Thank you, Chairman Skelton, Ranking Member McKeon, and honorable members of the Armed Services Committee. Good afternoon. I appreciate the opportunity, as the other 

witnesses, to come before you today and testify regarding the military commissions. 

The military commissions over the past few years have demonstrated the difficult balance between individual due process, fundamental fairness, and our national security interests. 

I support the majority of the amendments to the Military Commissions Act proposed by Senate Bill 1390, because they will help 

maintain that difficult balance. I concur with the comments of the 

other witnesses as to specific provisions and, in the interest of 

time, will not repeat those comments. 

The procedures and rules that we adopt for the military commissions are important to our Nation and also to all current and future members of the Armed Forces. As a Nation, we have forces deployed around the world advancing the rule of law. We must demonstrate our commitment to fairness and those guarantees indispensable for civilized nations. We must also remain cognizant of 

the fact that how we administer the military commissions can, and 

likely will, impact how U.S. forces will be treated by other nations 

in future conflicts at a time unknown. 

I thank you for your opportunity to express my views on these 

difficult issues, and I look forward to answering your questions. 

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

Appendix on page 57.] 

Mr. ORTIZ. Thank you very much. Not being a lawyer, and reading through some of the information, I just have a few questions. 

I am going to allow and give time to my colleagues to ask questions, but my question that I want to ask from all of you is: Why 

is providing material support for terrorism a crime subject to prosecution in military commissions, since it has not traditionally been 

an offense under the law of war? And maybe you could explain to 

me a little bit, enlighten me on why. 

Admiral MACDONALD. Sir, I can—I will start off. We actually can 

find material support for terrorism in the law of war. And, in fact, 

we have one military commissions case, the Hamdan case, where 

Judge Allred in that case actually found—and in his opinion upholding material support, found that particular crime in the law of 
8 

war and traced it back to the Civil War. So we do have it extant 

in our own law of war jurisprudence. 

General RIVES. Congressman, I agree that material support for 

terrorism or terrorist organizations remains an appropriate charge 

for military commissions. The law of war is prohibitive law. If it 

does not prohibit, then it permits. And there is history behind having such an offense as material support as a chargeable offense for 

a military commission. 

I also note that in the Military Commissions Act of 2006, Congress provided that the crimes in section 950(v) codify offenses that 

have been traditionally triable by military commissions. 

As Admiral MacDonald has mentioned, material support has 

been specifically charged; there have been objections to it, but 

judges have ruled. And I believe the proper course of action is to 

let judges consider the arguments in specific cases at the trial and, 

as appropriate, appellate levels to determine the continuing viability of material support as an offense. 

General BLACK. Mr. Ortiz, I agree with the comments of my colleagues already, and I would add just a couple of points. One, of 

course, the language is already in the SASC bill. But, two, I would 

rather litigate it in trial than just forego the opportunity by excluding the offense in the current legislative package. So I would argue 

in favor of including it. 

General WALKER. Sir, I agree with the other witnesses. I think, 

first of all, there is support in international law that the law of war 

does support the charge of material support to terrorism. And we 

have at least one experience with the courts at Guantanamo where 

a judge has so held that. I think this is one of those issues that 

we will never be able to say for absolute certainty, is it encompassed in the law of war? Because, of course, those specific words 

aren’t there. This is the exact issue that is the subject of litigation 

that we should litigate, and there is an adequate basis under law 

to proceed with that charge. 

Mr. ORTIZ. Thank you. I have another question. Should detainees 

who allegedly committed law of war violations when they were minors, should they be prosecuted under the Military Commissions 

Act of 2006 or a successive legal framework? If not, how would you 

suggest that they be adjudicated? I am talking about minors, you 

know, under the—— 

General BLACK. Sir, I’ll start. The factor of age is just that, a factor that should be considered by the trier of fact in the military 

commissions. Well, first, by the convening authority as they determine whether to refer charges to trial; and then, second, as a factor 

to be considered by the trier of fact if a case is brought forward. 

So, yes. 

Admiral MACDONALD. Sir, there—again, there is history in the 

law of war that military commissions are an appropriate forum to 

try minors. And I would agree with General Black. Certainly the 

convening authority in the case can take a look at the specific facts 

and circumstances, including the age of the minor, when making 

that decision whether or not to refer charges to a military commission in a particular case; also, the trier of fact, when they are determining whether or not they have jurisdiction over a minor. This 
9 

will go to that definition of unprivileged enemy belligerent that we 

have talked about in our opening statements. 

That trier of fact can listen to arguments on both sides and determine whether or not a minor actually fits into that jurisdictional 

definition. 

General RIVES. And, Congressman, I also agree that the issue of 

whether to hold minors responsible as an adult in a criminal matter involves a multifaceted approach. 

First, consideration by the convening authority of whether to 

even charge when considering all the facts and circumstances. 

Then the military judge has a role to play based on the legal standards. And finally, the trier of fact has decisions to make that can 

be affected by the age of the individual accused. 

The law of war does not speak to the issue of minors as combatants, except that states can create special safety protections for civilians under the age of 15. And that is under the Geneva Convention IV. And also, states are required to take precautions when persons under the age of 18 are recruited into an armed force. So 

those are considerations, but there is no clear determination. It 

would depend on the facts of the given case. 

General WALKER. Sir, I believe the most positive point under the 

Military Commissions Act is that there are numerous opportunities 

and safeguards within the existing provisions to consider the act of 

the defendant as one of the factors to whether he would bear criminal responsibility for his act, much as we do in criminal courts 

within the United States. So I do not feel there is a need to automatically bar prosecutions under the Military Commissions Act 

based on the age. 

Mr. ORTIZ. Thank you so much. Let me yield to my good friend 

from California, Mr. McKeon. 

Mr. MCKEON. Thank you, Mr. Chairman. 

The Administration has expressed a preference for trying detainees in Article III courts. Do you share the same preference? 

Admiral MACDONALD. Sir, I don’t share a preference. I believe 

that whatever we come up with in terms of modifications to the 

current Military Commissions Act, and as I said in my opening 

statement, we have to make sure and we have to leave here at the 

end of the day believing that this is a fair and just system that can 

stand on its own, and that we ought to be willing to subject any 

detainee, any terrorist, to the military commission process. 

Now, I understand that the Administration may have, and we 

may have, some reasons for looking towards Article III courts that 

may cause us in a particular case to defer to an Article III prosecution. But I think, at the end of the day, we need to build a system 

that can stand on it own. 

General RIVES. I agree, Congressman. In my view, the military 

commissions process is historically tested. It can be a very fair 

process. The military commissions that evolved through the Military Commissions Act of 2006 is such a fair process. It currently 

is being reviewed to make it even more so; to make for transparency, to ensure the rights of an accused, to ensure that it meets, 

easily, international standards. 

So my preference would be, get the military commissions right, 

do the prosecutions under the military commissions process. Of 
10 

course, I have no problem if a policy call is made in a given case 

to prosecute someone in an Article III court. That does come down 

to a policy call. But the important factor is for people to understand 

that military commissions are fair, they meet international standards, and they are not in any way something just to fall back on 

because we want to assure a certain result. The military commissions process is fair, and the only guarantee is we are going to provide a fair process. 

The history through World War II was the almost 2,500 people 

who were prosecuted in the European and Pacific theaters during 

and immediately after World War II had a conviction rate of 85 

percent. The cases we have already had, we have seen that people 

are not necessarily being convicted of all charged offenses, and the 

punishment that the members decide is appropriate has not been 

as severe as some people thought would happen. 

So the military commissions process is very fair, and it should 

be given a chance to work out. I do support the efforts of the Administration and Congress to make it even more fair than it has 

been. 

General BLACK. Sir, I agree with the comments of my colleagues. 

I would only add that the process here has to be perceived as fair 

and just, and there should not be a preference for any one system 

over the other. Article III courts are just another tool in the kit bag 

that is available to our country for resolving these issues and these 

crimes. 

General WALKER. I believe we are fortunate to have two forums 

in which we can charge these offenses, both which meet the international mandates, meet the law of war, and meet those fundamental principles of justice. It is a policy call which forum is chosen. I think we can make both work to achieve our Nation’s goals. 

Mr. MCKEON. I am not trying to get you to talk against the Administration. That would be—You know—I understand the situation. My concern is that if you decide to send some to Article III 

courts and some to military courts, what—is there a judgment 

made prematurely that indicates that one is less guilty than another or goes to one court over—you know, how do you determine 

which court would handle? That is one of the concerns I have on 

that. 

Are you concerned that this process will buttress the view that 

military commissions are a second-class system? I think you probably addressed that, and I don’t want to put you in a bad light with 

the Administration. But we don’t want to come up with a system 

where one is considered a kangaroo court and one is of a higher, 

better nature, more fair. That is, I think, the thing that we are 

grappling with. 

General RIVES. Congressman, I agree. An Article III court clearly 

gives the full panoply of constitutional and other rights to individual accuseds. The military commissions are designed for a specific purpose. A part of it is based on the very function of a military 

commission, which is based not on United States constitutional 

standards for civilian criminal defendants, but the battlefield. Soldiers on the battlefield are not law enforcement specialists. They 

are not acquiring evidence in strict conformance with constitutional 

standards and judicial rulings that provide protections. 
11 

So the point is the military commissions need to be clearly fair 

and well within international standards. I am satisfied that they 

are, and that the additional protections that will be provided will 

make them even more so. They should not be viewed as secondclass justice. 

On the other hand, as we have said and you have said, it comes 

down to a policy call. Should the Administration decide in a given 

case to use Article III courts, that is totally appropriate, but they 

would need to explain why that is the preferred venue in a given 

case. 

Admiral MACDONALD. Congressman, in the President’s National 

Archive speech he used the phrase ‘‘whenever feasible’’ in talking 

about the distinction between going to an Article III court and a 

military tribunal, a military commission. And we know that the 

Administration is working through a set of criteria—evaluation criteria to do that, to try to determine. 

So I think to answer your question, the proof will be—you 

know—when we understand the criteria that will be applied to 

make that determination, and then take a look at what cases are 

being referred to Article III and what cases are being referred to 

military commissions. 

Mr. MCKEON. And, finally, do you think it makes a difference 

whether the commissions are held at Gitmo or in the continental 

U.S.? 

General BLACK. No, sir, I don’t. I believe that geography doesn’t 

matter. These are law-of-war-based criminal prosecutions, and geography does not affect the way we should draft the rules to accomplish the process. 

Admiral MACDONALD. Congressman, I think this comes down to 

what do you believe these commissions are? And there are some 

that believe that these are law enforcement actions; that terrorists 

ought to be tried under a law enforcement model. That leads you 

into U.S. criminal law and the Constitution. 

There are others that believe, as I think we all do, that we are 

at war and that the law of war applies, and that you look to the 

law of war to find the substantive law that should be applied. And 

looking at the Military Commissions Act with the SASC amendments, we believe that obviously with some—I think we have all 

talked about some improvements, but we believe it meets that law 

of war standard, and it meets it at Guantanamo and it would meet 

it here in the United States. 

General RIVES. And Congressman, as I understood your question 

it is: Does it matter substantively and procedurally whether we try 

cases by military commissions within the United States? 

My answer is I don’t believe it should matter. We already have 

a ruling from the Supreme Court in the Boumediene case saying 

that the constitutional right for habeas corpus does apply to the 

noncitizens who are in Guantanamo Bay. 

There could be other judges who may determine that because we 

are in the United States, there are some additional rights that may 

accrue to someone being prosecuted even by a military commission. 

My view is that that should not matter and it would not matter. 

But we can’t be sure how an individual judge or, ultimately, a case 

on appeal may be decided. 
12 

Admiral MACDONALD. I think, sir, we can also look at another 

case, another Supreme Court case, and it is the Hamdi case. 

Hamdi was a U.S. citizen brought from Afghanistan and brought 

into the Navy brig down in Charleston. So we had a U.S. citizen 

in the United States. And Justice O’Connor, in finding that Hamdi 

was entitled to a habeas proceeding, and talking about the kind of 

proceeding, what kind of proceeding that would be, she actually 

looked to the law of war. And she looked to Article five of the Third 

Geneva Convention. Those are Article five tribunals that we in the 

military are very used to conducting. 

These are the status determinations on the battlefield when you 

get someone, take them off the battlefield, you convene an Article 

five tribunal to determine their status. Are they a lawful combatant, an unlawful combatant? Are they a privileged civilian? 

And she specifically pointed towards the law-of-war model and 

said that might be a suitable way to determine status. 

So if she was—if the Supreme Court was willing to do that for 

a U.S. citizen in the United States and apply this law-of-war detention review process, then we believe that they are likely to do the 

same thing. Nothing is a certainty, but they are likely to do the 

same thing when they evaluate the commissions process and the 

due process accorded to commissions here in the United States. 

General WALKER. Mr. Chairman, I believe there are—the precedents that we have for the extension of constitutional rights to detainees have been limited. In the cases where the courts have had 

the opportunity, as Admiral MacDonald mentioned, they have chosen a limited application of the traditional constitutional protection. And I believe that is a correct application of the law, because 

we should go by the law of war. 

However, I have to say that if the commissions were geographically sited in the United States, I think it would increase the possibility that a particular jurisdiction or a Federal court could choose 

to broaden that scope of constitutional protections. 

Mr. MCKEON. Thank you. Thank you, Mr. Chairman. 

Mr. ORTIZ. Let’s see if we can get some clarification on something. Now, while each of you support prosecution in military commissions, you do not oppose prosecution of detainees in Federal civilian courts. Am I assuming correct? 

General BLACK. That is correct, sir. 

Admiral MACDONALD. Yes, sir. 

Mr. ORTIZ. All of you? 

General WALKER. Aye, sir. 

General RIVES. I agree. 

Mr. ORTIZ. Thank you. Mr. Taylor. 

Mr. TAYLOR. Mr. Chairman, I am going to yield to Mr. Murphy. 

Mr. MURPHY OF PENNSYLVANIA. Thank you, Mr. Chairman. And 

thank you, Mr. Taylor. 

Gentlemen, thank you for your service to our country. 

I would like to put you on the spot. I know my colleague on the 

other side of the aisle, Representative Rooney, you know—he 

served as a young captain, a judge advocate in that First Calvary 

Division, and I was a young captain in the 82nd Airborne Division. 

Who would be a better judge advocate? Who would you rather have 

on your team? 
13 

But I won’t put you on the spot because we all know that the 

Airborne leads the way. So I will get right to my question. 

Gentlemen, I think it is important that we are having this hearing today to try to figure out the details of how we can constitutionally and fairly put these suspected terrorists on trial in a way 

that is consistent with our values while still keeping our service 

members and our families here in America safe. As a former judge 

advocate and a constitutional law professor at West Point, to many 

of us this is very personal. 

The Administration has yet to formally comment on the exact 

definition of an enemy combatant, and clearly the Bush Administration, in my opinion, stretched the boundaries of what exactly 

constitutes an enemy combatant. 

Back in 2004, a Deputy Associate Attorney General argued in 

Federal district court that an old lady in Switzerland, who wrote 

a check to a charity that, without her knowledge, passed those 

funds on to an al Qaeda organization, could be held as an enemy 

combatant. When asked to explain this, the representative for the 

Bush Administration said that, under the 2001 Authorization for 

the Use of Military Force, the government could hold the woman 

indefinitely, and that someone’s intention is clearly not a factor 

that would disable detention. 

The Military Commissions Act states that, ‘‘To be declared an 

unlawful enemy combatant, an individual must have purposely and 

materially supported hostilities against the United States.’’ But the 

2001 Authorization for Use of Military Force makes no such distinction, merely leaving the decision up to the President as to 

whether someone engaged in or supported hostilities against the 

United States. 

So my question to the panel: In your opinion, in your view, does 

mens rea—obviously the mental intent—should it play a key role 

in determining who the government should and should not classify 

as an enemy combatant? Gentlemen, I appreciate your answers. 

General BLACK. Mr. Murphy, thank you. And thank you and Mr. 

Rooney for your service in my corps. I won’t take sides with the respective divisions that you both served in. They are both wonderful 

organizations and produce great officers and soldiers. 

Now, with respect to your question, the objective here ought to 

be as narrowly and carefully tailored a definition as we can possibly come up with. And, yes, mens rea should be part of the package. 

Purposefully and materially supporting hostilities is a definition 

we can work with. It does provide the sufficient—the element of 

mens rea, and I would support that. We look forward to working 

with the Administration and continuing to work with the Administration to refine the definition to get to exactly the end state that 

we need in this regard. 

Mr. MURPHY OF PENNSYLVANIA. Thank you. 

Admiral MACDONALD. Congressman, I agree completely with 

that. Mens rea should be an element of any of the crimes, the material support crime, the conspiracy, aiding and abetting. And also 

in terms of detention, it should be an element as well before we detain. 
14 

General RIVES. Mr. Murphy, as you were speaking, I was thinking I was glad you are not my law professor. 

Mr. MURPHY OF PENNSYLVANIA. I did lecture at the Air Force 

Academy in Colorado Springs, but only for a few weeks. 

General RIVES. Well, you are welcome to come back anytime, and 

I won’t be in your class. 

But I agree that we need to be careful with how we define these 

terms. Lawyers know you have got a lot of discretion in how you 

charge, but I believe we should only charge those who we believe 

really committed a criminal offense, one that is punishable for military commissions purposes under the laws of war. 

Mens rea really is a critical element in ultimately getting a conviction. We shouldn’t charge someone if we don’t believe we are 

likely to get a conviction, if we don’t believe the evidence is there. 

And if we don’t believe we have good evidence of mens rea, we 

should not be charging an individual. 

We should not charge the little old lady in Switzerland who innocuously thought she was donating money to an organization that 

helps orphans. But if the same little old lady knew that the purpose of her money was ultimately to help someone accomplish a 

terrorist goal, we can properly charge her, we can properly prosecute her. And whether she is convicted or not depends on how the 

proof is given in the trial. 

Mr. MURPHY OF PENNSYLVANIA. And I agree with that assessment, absolutely. If she knows that is where the money is going, 

we absolutely should prosecute her to the fullest extent of law. 

General? 

General WALKER. I believe that we should consider intent or 

mens rea as we look at these crimes under the law of war, just as 

those elements have been traditional elements of the crimes under 

the law of war throughout history. We see—I see no reason we 

would differentiate now. 

Mr. MURPHY OF PENNSYLVANIA. Thanks, General. And I see my 

time is up. I appreciate the time. Thank you, Mr. Chairman. 

Mr. ORTIZ. Mr. Bartlett. 

Mr. BARTLETT. Thank you very much. 

Gentlemen, are there world courts where these prisoners might 

be tried? 

General WALKER. There could be—international tribunals would 

be a possible forum that could try these offenses. A good example 

of a similar tribunal would be the ITFY, the International Tribunal 

for Former Yugoslavia. That would have been a forum; I suppose 

still could be a forum. I am not aware of any standing body that 

could handle these cases. 

General BLACK. Nor am I, sir. I am not aware of any existing 

forum that has the jurisdiction to handle these cases. 

Mr. BARTLETT. General Rives, you mentioned that we wanted the 

military commissions to be considered fair and creditable. I gather 

that you said that because they are not always considered fair and 

creditable. 

When you made that statement, I was reminded of the counsel 

that my mother gave me and your mother probably gave you: that 

you shouldn’t borrow trouble. We have enough trouble without borrowing trouble. 
15 

When I mention military commission or military tribunal—and I 

have tried this a lot of times—when I mention that to one of my 

constituents, their reaction is always my reaction: a banana republic, a trial at midnight, execution at dawn. 

I voted against this act because I didn’t think we needed to borrow that trouble. If these people need to be tried, there are international courts that can try them. And I don’t know why we are 

doing this. We have enough trouble to deal with without borrowing 

this additional problem. 

General RIVES. Well, interestingly, Mr. Bartlett, the trials at 

Nuremburg after World War II are often held up as the gold standard, when in fact if people dug into exactly what happened at 

Nuremburg, there was no specified standard of proof; the accused’s 

presence was not even required; an accused did not have the right 

against self-incrimination. Evidence obtained from any source was 

admissible. The judgments were final. There was no right of appeal. 

At Nuremburg, many of the accused were prosecuted, and then 

the death penalty was executed within a matter of hours in some 

cases, no more than a few weeks in just about every case. So 

Nuremburg is not the gold standard. 

My point earlier about having fair military commissions is we 

also need to be concerned with how we explain the processes. And 

I agree with you that many people, when they hear military commissions, have bad thoughts. But when I have talked to people 

about the sort of rights that we have with the Military Commissions Act, and in the military commissions we have had—the fair 

trials that really have been conducted under the guidance of welltrained, qualified, conscientious military judges—when they hear 

about all the rights that people have at the military commissions, 

they are sometimes very surprised that those are military commissions and it is a fair process. 

So we need to do a better job of being fully open, not trying to 

hide things except those things that are a matter of national security, and having transparent decision-making processes to the 

point, to the maximum extent, having full and open trials. And 

then the military commissions process can be seen as a fair process 

that it really is. 

Mr. BARTLETT. In this arena of psychology and politics, perception is reality. And although it—I am sure that it is true that if 

we have a military commission trial, that it would not be conducted 

differently in Gitmo than it would be on the continental United 

States. But I will tell you, gentlemen, the perception would be very 

different about where it is conducted. If we are going to conduct 

those trials, we need to conduct them on the continental United 

States because the perception will be very different than if we conduct them in Gitmo. 

Thank you very much for your service. I want to tell you how 

proud I was of all of your uniformed lawyers. I am not always 

proud of lawyers. But I want to tell you how proud I was of your 

uniformed lawyers. Every one of them came and sat at that table 

you are sitting at and told us that civilized nations do not torture. 

Thank you very much for the quality of the people that work in 

your divisions. Thank you, and I yield back, Mr. Chairman. 
16 

Mr. ORTIZ. Dr. Snyder. 

Dr. SNYDER. Thank you, Mr. Chairman. Thank you also for your 

service. I will add to Roscoe’s comment. You are also darned goodlooking, too, and we appreciate you—appreciate all you have done. 

I want to—I am going to pick up and just follow up on what Roscoe asked about with regard to perception, because you all I think 

generally have the belief that no matter where you do these commissions the way you all would like to have them done, it is a fair 

process whether it is in Guantanamo or here. 

Picking up on what you said, General Walker, I think I guess 

anyone who is a lawyer recognizes that judges come from a broad 

spectrum of backgrounds. Again, you know, sometimes you just get 

off-the-wall opinions that, I believe in your words, could increase 

the likelihood of finding constitutional rights here. 

There is a flip side of that though, too, isn’t there, that gives the 

perception that Roscoe brought up: which is we do not want to be 

perceived as a nation that we are going to keep these people on a 

Caribbean island in order to deny them rights. I mean, that is the 

flip side of this. 

I would—I prefer the first view which is, no, we are going to 

treat them fairly. If a hurricane closes Guantanamo and they are 

swept to Miami for a weekend, we are giong to—they are going to 

have the same rights because we are treating them fairly everywhere. So I think that is the flip side of that. 

I want to ask this specific question. I will just show my Marine 

Corps background, I guess, and ask you, General Walker. Today in 

Guantanamo, if an inmate were to attack another inmate and kill 

them, what body of law would control the murder trial? 

General WALKER. I am actually not certain of the answer to that. 

Dr. SNYDER. Well, let’s just leave it at that for today. Because— 

I mean—the issue is, would it be American criminal law or would 

it be—or if they, you know, stole money from you when you went 

down there to see them, what body of law would control? I would 

be—Let’s take it as a question for the record. 

[The information referred to can be found in the Appendix beginning on page 65.] 

Dr. SNYDER. I wanted to ask—a couple of you in your statements, 

you talk about one of the changes you would like to see is more 

of a duty for the prosecution to disclose exculpatory evidence. How 

did that get overlooked? 

I mean, how can a prosecutor sit there knowing they have got 

in their file a statement from—you know, I will just make some— 

you know—two eye witnesses said that a—you know—a perpetrator was three miles away at the time. How could a prosecutor 

not turn that over? How did that get overlooked? Was that an oversight by the Congress? 

Admiral MACDONALD. Actually, sir, the prosecutors assigned to 

the Office of Military Commission are turning them over. That is 

the good news, is that despite the rule that was put in place in 

2006 and 2007, the prosecutors have been doing that. This is simply codifying the practice that the prosecutors have been doing in 

the commission since 2006 when the Military Commissions Act was 

first enacted. So that is the good news. 
17 

I think what this rule change does is it extends it now to an affirmative duty on the prosecutors to disclose mitigation evidence 

for sentencing purposes and also to disclose evidence that could be 

used to impeach a witness. 

Dr. SNYDER. So you have had, what, three trials so far in the 

military commissions, and you all feel comfortable that that disclosure has been going on? Okay. 

The Ranking Member made some comment about you confronting the Administration or something. We have had a change 

in Administration, so I don’t think there is going to be any payback 

here. But I did notice you all—I think three of you went out of your 

way to say this is your personal legal opinion. Is that just what 

lawyers do? Or is there some reason that you are—it is a complicated enough activity—you haven’t done a group think on these 

comments. Is there anything magic about the fact that—we are not 

used to people putting that in their opening statements, that this 

is your personal legal opinion. 

General Walker is that—what is going on? 

General WALKER. I think to a degree, that is what lawyers do. 

You always have to try a caveat. However, our specific invitation 

to the committee was to express our personal opinions on the modifications to the Military Commissions Act under the Senate bill. 

Dr. SNYDER. And it is very helpful because this is a complicated 

area of law, and we appreciate your service and appreciate—Yes, 

Admiral? 

Admiral MACDONALD. And, sir, you may remember that in 2006 

we were specifically invited up to testify before the House Armed 

Services Committee (HASC) and to give our personal opinion because we—much of our testimony was contradictory to the Administration positions. And so we take our duties seriously that, when 

you ask us to give our personal opinions, we will come up and we 

will tell you. 

Dr. SNYDER. Thank you for your service. Thank you Mr. Chairman. 

Mr. MCKEON. Will the gentleman yield? And they gave contradictory opinions and they are still here. That is a good thing. Thank 

you. 

The CHAIRMAN [presiding]. Mr. Forbes, please. 

Mr. FORBES. Thank you, Mr. Chairman. And, gentlemen, thank 

you for being here. And I apologize, I only have five minutes. So 

if I am short, it is not because I want to be rude; it is just because 

I want to get the questions in for you. 

One of the things that we always realize is if we are going to 

keep somebody from seeing the forest, the best way to do it is to 

drive them deep into the trees. 

When the American people hear all this debate, they hear some 

specificity but they don’t see the big picture. I want to take you 

back to the big picture just a moment. And one of the parts of the 

big picture is we are not talking about purse snatchers here,—you 

know—we are not talking about bad check writers. We are talking 

about people, really, that could pose a threat to U.S. citizens. 

The Attorney General of the United States, Mr. Holder, testified 

before the Judiciary Committee and he said this: He said that in 

his office they receive a great deal of evidence or information about 
18 

these detainees, these alleged terrorists. Some of this information 

is classified, obviously some is not. Some is hearsay, some is not. 

However, the Attorney General said this: If his office concluded 

that in the totality of that information it led to the conclusion that 

the detainee had a probability of harming a U.S. citizen, that the 

Attorney General would detain that individual even if he did not 

have enough admissible evidence in court to charge him and convict him of a crime. 

I am asking you, Admiral MacDonald, because you have used the 

standard of justice and fairness, is the Attorney General’s standard, the testimony he made, does that meet a standard of justice 

and fairness? 

Admiral MACDONALD. Yes, sir. And—— 

Mr. FORBES. Alright. If that is the case—and you can talk in just 

a minute, but let me get this in. If that is the case, and we talked 

about perception here, if somebody were to spin that standard of 

justice and fairness and suggest it wasn’t just and it wasn’t fair, 

and the perception was that it wasn’t just and fair, should the Attorney General change his position because the perception somehow or the other was out there that it wasn’t? 

Admiral MACDONALD. No. I don’t believe he should. 

Mr. FORBES. If that is the case, then, one of the things that we 

forget sometimes here is that we are looking at a balance between 

prosecutors and defendants. We don’t also talk about the difficulties prosecutors have when you are picking up and trying to get 

evidence in Afghanistan and other places. You don’t always have 

the right to use search warrants to get the evidence that you want 

over there like you would here for a domestic trial, do you? 

Secondly, you don’t have the ability to have grand juries to subpoena evidence in. You can’t subpoena business records and other 

things when you are in foreign countries. So you have a difficulty 

in that balance of power already. 

The question I am going to ask you is this: Is there anyone who 

would disagree on our panel today that, if we held the commissions 

within the United States, that it would be more likely than not 

that it would shift the balance of power more towards the defendants than the prosecutors? 

Nobody answers that. I am—Yes, sir? 

General RIVES. I would disagree that it would shift the balance 

just because we shifted the location of the military commissions. If 

they are military commissions—— 

Mr. FORBES. You don’t think they would have more rights because they were in the United States than if they were held elsewhere? 

General RIVES. I don’t believe they have any more rights under 

the military commissions, wherever they are prosecuted. 

Mr. FORBES. Wherever they are prosecuted. Does anyone disagree with that? Was it your testimony that they could probably 

have more rights if they were geographically in the United States? 

General RIVES. I testified there would be an argument they 

would have more rights. 

General WALKER. I agree with General Rives that, as a legal 

proposition, they would not automatically be extended more rights. 

However, it is my opinion that there is a greater likelihood that a 
19 

particular court or jurisdiction could choose to extend greater 

rights. 

Mr. FORBES. Let me ask you this. If we use Article III courts 

versus commissions, would it be more likely that they would have 

more rights for the defendants than for the prosecutors? 

General WALKER. Yes. 

Mr. FORBES. That would shift it. You have testified that you did 

not oppose the Article III courts of the commissions. But does anyone there favor a preference for Article III courts? 

I take it the answer is no. 

If we adopt the Administration’s recommendation regarding detainee statements, the voluntariness standards, would that be a 

shift in power to the defendant or to the prosecutor? 

Admiral MACDONALD. To the defendant. 

Mr. FORBES. Does anyone disagree with Admiral MacDonald’s 

testimony? Everybody is shaking their head no. 

If we do not try those offering material support for terrorism in 

military commissions, but rather do so in a criminal court, wouldn’t 

that make it more difficult for us to get convictions for those individuals as well? Anybody? 

General RIVES. If we did it in an Article III court, in Federal 

court? Any prosecution in an Article III court could be more difficult, because we are talking about evidence that was obtained on 

the battlefield and not by law enforcement authorities. 

Mr. FORBES. And the last question I have, if I have time to get 

it in. The Administration has proposed to drop material support for 

terrorism from the list of offenses triable by military commissions. 

Do you agree with the Administration’s position? 

Admiral MACDONALD. No. 

General BLACK. No, sir. 

General RIVES. No. 

General WALKER. No. 

Mr. FORBES. No one agrees with that. Mr. Chairman, with that, 

I yield back the balance of my time. 

The CHAIRMAN. I thank the gentleman from Virginia. 

Before I call on the gentleman from Georgia, let me ask this simple question of each of you. Looking at the law as it exists today, 

if you were to make one change or one correction, what would you 

do? Starting with you, General. 

General BLACK. I would go after the voluntariness issue, sir, with 

respect to the admission of statements. I believe that we ought to 

adopt a reliability standard with voluntariness as a factor to be 

considered in the totality of the circumstances by the trier of fact, 

the judge. 

The CHAIRMAN. Admiral. 

Admiral MACDONALD. Sir, I would bring in the Classified Information Procedures Act into the SASC bill as the standard by which 

classified evidence is determined, whether or not it is going to be 

introduced in a military commission. 

The CHAIRMAN. General. 

General RIVES. I agree with Admiral MacDonald that the most 

important reform we need to make is to clarify the rules and 

strengthen the rules for handling classified information. And it 
20 

ought to be similar to the rules for the Classified Information Procedures Act. 

The CHAIRMAN. General. 

General WALKER. Mr. Chairman, the land forces stand together. 

I concur with General Black that we need to first modify the standard for admission of the hearsay evidence from voluntariness to reliability, plus consideration of the exigencies of the military battlefield. 

The CHAIRMAN. Thank you. Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

And, gentlemen, I want you to know that I appreciate your service and I consider that all of you are men of justice. And we could 

disagree sometimes as to what that means, but I certainly respect 

your intent to be respectful of our Constitution and the great traditions of a civilized society. 

And what I would like to know is: What is the statute of limitations on a crime committed on the battlefield for which an individual could be prosecuted? 

General RIVES. There is not one under the law of war. 

Mr. JOHNSON. So a detainee could be held indefinitely, even for 

life, for 20, 30 years, without being charged and without being 

tried? 

Admiral MACDONALD. Congressman, we need to distinguish, 

though, between the power to detain under the law of war and the 

power to prosecute. Those are two separate and distinct powers 

that nations have when they go to war. 

Mr. JOHNSON. I understand, and I am just simply trying to find 

out the practical impact of our military commissions setup as is 

proposed in the Senate. 

Also, why is it that the reliability standard should be used as opposed to a voluntariness standard for admissions against interest, 

if you will? 

Admiral MACDONALD. Congressman, it has to go with the different circumstances under which statements are taken. So, for example, our position is that in the heat of battle when a soldier 

breaks down a door and, at the point of a rifle, extracts a statement from a detainee, that that is an inherently coercive environment. And if you have a voluntariness standard, the likelihood, 

that if that is applied, that a judge would find that that statement 

was involuntary is great. 

Mr. JOHNSON. I don’t think that even in civilian courts that a 

statement made at the time of a person’s arrest, that was spontaneous and voluntary, would be excluded as evidence. And so I think 

the same standard would probably be the same in a military tribunal. 

But the bottom line is, you know—I don’t think I have gotten an 

answer to the question yet. What is wrong with applying a voluntariness standard as opposed to a reliability standard? And with respect to reliability, how can you determine the quality of hearsay 

evidence that is admissible against—in accordance with the Senate 

version here? 

General RIVES. Congressman, on the substantial question, I believe reliability is the better test. 

Mr. JOHNSON. Why? 
21 

General RIVES. Because it effectively balances fair treatment of 

the accused with the exigencies of the battlefield. The reliability of 

a statement will depend on the totality of the circumstances. Voluntariness is one of those standards. 

But I would emphasize that the pressure of the battlefield could 

make any statement involuntary. If you consider, for example, that 

ten soldiers in full battle gear, armed with M–16s, confront a person and ask about the location of a hidden improvised explosive device, his statement proves to be reliable. But is it voluntary? That 

is the issue. 

General BLACK. Sir, if I might add something. This past Saturday morning I happened to have the opportunity to sit down with 

a young judge advocate who was advising a Special Operations 

team in Afghanistan. I talked to him in Bagram this past Saturday 

morning and I asked him that very question: Voluntariness or reliability? Which way should we go on this? Because we are talking 

about it now. And his quotes—and I will give it to you straight up: 

‘‘Our mission on the site of capture is information exploitation. 

Exploitation and prosecution do not mix. Imposing a voluntariness 

standard would disrupt our mission. Tactical site exploitation interrogations are perhaps our most important results in terms of continuing success in this fight.’’ 

So his position was reliability, but with voluntariness as a factor 

to be considered. And you can almost consider it as a sliding scale, 

sir. The greater the government intrusion, if you follow the analogy 

of the Fifth and 14th Amendment analysis. 

Mr. JOHNSON. Okay. Thank you. And could someone answer the 

question about the level or the quality of the hearsay that could be 

admissible or that would be admissible against an accused? 

General RIVES. It will be fact-specific and determined by the military judge. I very much appreciate the fact that the rules have 

evolved for military commissions where the military judges, who 

are very experienced and are picked for their independence, judgment, discretion, and experience, are able to make this sort of decision. 

It is hard to give—it is impossible to give a blanket rule that 

would fit in every occasion, but I can say that based on the facts 

of the case, I trust the judgment of our trial judges in these sort 

of cases. 

Mr. JOHNSON. Thank you all. 

The CHAIRMAN. I thank the gentleman. 

Before I call on Mr. Coffman, let me ask this question of the Admiral. How would you define ‘‘proximate to the battlefield’’? 

Admiral MACDONALD. Actually, sir, that is—this is exactly the 

discussion that we are having with the Administration after the 

SASC hearing last week. The Administration favors a voluntariness standard with a battlefield exception. I think we go at it the 

other way: A reliability standard, taking voluntariness as one of a 

number of factors that you would weigh and balance, a judge would 

weigh and balance, in determining whether or not the statement 

was ultimately reliable. 

We are pretty close. Over the last week we have been working 

on, as General Black said, kind of this sliding scale. And I think 

at this point we would assess it this way: The closer you are to the 
22 

battlefield, the more that voluntariness would recede and you 

would look at the kind of indicia of reliability of the statement 

itself. At some point, though, as you take the detainee off the battlefield and as you put them into a confinement facility, then the 

nature of the interrogation changes. 

So you go from this tactical interrogation that General Black 

talked about on the battlefield in Afghanistan, you move away from 

the intelligence interrogations that go on, and at some point you 

are starting to look at exploitation, getting statements for prosecution. At that point, I think we all agree that voluntariness should 

be the standard at that point. 

So all of these detainees at Guantanamo right now, all their 

statements ought to be evaluated under a voluntariness standard, 

because they have been removed from the exigencies of the battlefield. But we are pretty close and working with the Administration 

on that test. 

The CHAIRMAN. I thank the gentleman. I did not see Mr. Rooney, 

Mr. Coffman. So we will call on Mr. Rooney first for five minutes. 

Mr. ROONEY. Thank you, Mr. Chairman. 

Thank you all for your service and your leadership. And as far 

as what former Captain Murphy had to say earlier, all I have to 

say is first team to that. 

I wanted to go into two sort of separate areas. I have a question, 

but I want to start with a follow-up to something that I think Congressman Forbes was raising, but also that Admiral McDonald and 

General Black—I am a little confused with something that was 

said before. 

When you were talking about, Admiral, the commissions could be 

properly held in the United States, I was getting the gist from you 

that it insulated from outside distractions. In fact, we had a United 

States citizen that was brought to the United States and successfully prosecuted in a commissions setting, a case involving an actual U.S. citizen. So, therefore, when we bring noncitizens from 

Guantanamo to the United States, we should be able to do it as 

well. 

However, then General Black, I think, made the statement that 

depending on the forum, extra-constitutional protections beyond 

habeas corpus, from the court’s ruling—you know, Fifth Amendment due process rights and the like—may attach, depending on 

which court they get or which district they get or whatever the circumstance may be. 

So I don’t know if I am seeing a sort of—can we be—and the reason I ask this is because, again, like Congressman Forbes said, 

from a 30,000-foot view, my constituents in the 16th District of 

Florida are going to be very concerned about us bringing detainees 

from Guantanamo to the United States. So I have to look them in 

the eye and say the judge advocates are sure that we are going to 

be able to do this in a way that is not going to give them the same 

rights as American citizens, that they are not basically de facto 

constitutionally protected American citizens. Because in their eyes, 

or in at least some of them, you know, they are terrorists, so to 

speak. 
23 

So can you try to for me—are they going to get extra-constitutional rights, or are we going to be able to insulate them in a commission? 

Admiral MACDONALD. Sir, in my opinion, they are going to get 

due process, but they are going to get due process as informed by 

the law of war. And, so that we need to look to the law of war over 

time, and we also look to international tribunals, like General 

Walker talked about—the International Criminal Tribunal for 

Rwanda and for Yugoslavia—to look for that body of law, those 

rights, that we would bring into the commissions process. 

We have done that analysis. We have looked at the military commissions rules. We have looked at the amendment that the Senate—or the bill that the Senate has proposed. And we believe that 

it satisfies the due process concerns as informed by the law of war. 

Now, I believe there is some disagreement, and I think the Administration may have a different opinion, but our opinion is the 

law of war is the body of law you look to to inform what process 

is due to a detainee, whether in Guantanamo or in the United 

States. 

Mr. ROONEY. And I am confident that you are correct. My concern is that you are also correct, if I think—if I get the gist of what 

you are saying, that from there we don’t know what is going to 

happen, because it is very rare to say we are bringing a noncitizen 

into this country and we are giving them all the constitutional 

rights in court. We are going through uncharted territories. 

Am I confident that you guys are going to get it right? Yes. But 

after that, where are we going to go? That is what I am a little 

afraid of. Go ahead. 

I just want to really quick, because my time is, unfortunately, 

limited. One of the things you talked about, voluntariness. I completely understand your statements with regard to voluntariness 

and the classified information, but what I want to get into is classified information. 

One of the things that I am concerned about is when we have 

detainees, we get evidence from them. A lot of times the evidence 

may have been gotten from a source or somebody who is a clandestine agent, so to speak, or the like. 

And I am a little concerned about when we have this evidence 

that is classified or protected. What protections or procedures do 

you feel are best under the act, or changing the act to move forward with regard to making sure that if we have sources in foreign 

lands that are helping us, that we are not putting them in jeopardy? And also whether or not this information you all talked 

about, the Classified Information Procedures Act—could you just go 

into that briefly? Go ahead. 

Admiral MACDONALD. It does—the CIPA has—first of all, Congressman, CIPA has been around for a while, a long time. There 

is about 20 years’ worth of case law that go with CIPA. It has been 

used in Federal court very successfully. That is one of the reasons 

why we want to—we are recommending to bring it into the Military Commissions Act. 

When the Military Commissions Act was passed in 2006, we testified about Military Rule of Evidence 505, which is the military 

analog to CIPA. It hasn’t worked well over the last two to three 
24 

years. The reason? There is not a robust body of case law that goes 

with MRE 505; there is with CIPA. And it has procedures to address your concern, which is the protection of sources and methods 

for gathering statements. 

But at the end of the day, the judge is going to have to rule on 

whether or not a detainee is entitled to get the sources and methods. And then, as we testified in 2006, it is ultimately going to be 

up to the government, to the United States, to say that they want 

to proceed with a commission and introduce and disclose sources 

and methods or forego it. That is how CIPA would operate in that 

context. 

The CHAIRMAN. I thank the gentleman. The time has expired. 

Mr. Ellsworth. 

Mr. ELLSWORTH. Thank you, Mr. Chairman. Thank you, gentlemen. 

I am sitting here thinking, after 25 years in local law enforcement, I was wishing I could claim battlefield circumstances in some 

of our interrogations; unfortunately, we couldn’t get away with 

that. 

But, I have a real quick question, and then I am going to defer 

to Mr. Kratovil. And, Mr. Forbes, thank you; I like the rapid-fire 

questions. We get a lot more answered in a short amount of time. 

Are there cases and circumstances—I know you prefer the military commission. But are there cases you can think of, where Article III is preferred or would be appropriate at any time in these 

proceedings, that you would say this ought to be an Article III in 

the circumstance that we are talking about? Does that make sense? 

General BLACK. I can’t think of a particular hypothetical right 

now, but I don’t want to foreclose the opportunity either. Article III 

courts are another tool that we can use. 

Mr. ELLSWORTH. And with that, that is the only question I had. 

I will give Mr. Kratovil the rest of my time. 

Mr. KRATOVIL. Thank you. Gentlemen, forgive me; I am a former 

State prosecutor and am not as familiar, obviously, with the military forms of justice that we are talking about. But I do have a few 

questions for you. 

My first question is: Is it the position of all of you that individuals that are detained at Guantanamo Bay right now could be detained indefinitely without a finding under any of these possible 

sources—commission, Article III, or a civilian court? Could they remain indefinitely without having any finding? 

Admiral MACDONALD. Yes, sir. 

General BLACK. Yes, sir. 

Mr. KRATOVIL. Okay. 

General WALKER. With, I think, the exception, sir, that the ‘‘indefinitely’’ means, under international law and the law of war, for 

the duration of the conflict. So it is not truly indefinitely. 

Mr. KRATOVIL. Okay. At what point do we establish some standard of proof to continue detention based on the decision to take 

them before one of these—either the commission or the Article III? 

Admiral MACDONALD. Yes, sir. If a detainee was taken to a military commission, and let’s assume that at that commission the detainee was acquitted. If the United States continued to believe that 

that detainee posed a serious threat to the security of the United 
25 

States, the detainee could be put back into detention. And that is 

the difference that I was pointing out earlier, the difference between the power to detain and the power to prosecute. But there 

would be a process following that, and it would be habeas. 

Mr. KRATOVIL. Okay. What—ultimately, what is the purpose of 

bringing these individuals before either the commission, Article III, 

or a Federal civilian court? Ultimately, what is the purpose? 

General WALKER. Punishment for specific crimes as opposed to 

detention as a national security threat. 

Mr. KRATOVIL. Okay. Is it punishment? We are jumping to punishment? Or is there some need to determine whether or not, in 

fact, they have committed what they are bringing— brought before 

those bodies? 

General RIVES. It is both. We should prosecute to determine 

whether we can prove guilt beyond a reasonable doubt; and if so, 

we apply an appropriate punishment. And the separate question 

that we have discussed is whether the person should continue to 

be detained. Ultimately, that is a policy call. We do have to establish fair procedures to periodically review the propriety of continued detention. 

Mr. KRATOVIL. Alright. So it is fair enough to say that the purpose of them is to, in a sense, determine the truth as to the allegations. 

What is the danger in allowing either involuntary or—well, involuntary statements or unreliable statements? 

General RIVES. Number one, you would—you are more likely to 

get an unjust result. And most importantly, we are concerned 

about reciprocity; how would we want our soldiers, sailors, airmen, 

and marines to be prosecuted if held by a foreign authority? The 

Military Commissions Act provides for a fair process that I would 

be comfortable with our people being prosecuted under. 

Mr. KRATOVIL. Okay. By the way, the discussion that you are 

having, I was about to ask about the distinction you were making 

in reliability versus voluntariness. And based on the discussion 

that you had with the Chairman, to me that sounds like a very reasonable compromise where you are saying that voluntariness 

should be used in a situation after detention, where you don’t clearly have the issue of, really, battlefield; whereas using the reliability 

when you are talking about other factors that obviously are not 

similar to a criminal-type of interrogation. So to me that sounds 

like a very reasonable compromise and I salute you for it. 

And let me say this. We are obviously having all of these discussions, because it does not get any more complicated than trying to 

determine how best to deal with individuals that we suspect are involved, but aren’t necessarily at a point of having proof that we 

would have in our—in typically under normal prosecution. It is a 

very difficult balance, and I salute you for trying to find it. 

The CHAIRMAN. At last, Mr. Coffman. 

Mr. COFFMAN. Thank you, Mr. Chairman. 

Thank you all for your service. I was not in the JAG Corps; I expect lower test scores and a tremendous threshold for pain. I was 

an infantry officer in the United States Marine Corps. 

Let me express a concern that I think there is some fantasy that 

we are not a Nation at war. We are a Nation at war, and we are 
26 

fighting irregular forces bound by an ideology who often use terrorism as a tactic. And I guess it has been redefined as a mancaused disaster, and we are not involved in the global war on terror, but I believe it is called ‘‘overseas contingency operations.’’ 

But, there seems to be—we ought to look at the—you know— 

we’re—there is now a view that this is a criminal justice issue. And 

it would seem that combatants who are plucked off the battlefield, 

that there are—one is, did they in fact violate the law of random 

warfare? Are they war criminals? And the other one is the fact that 

they are combatants, and they ought to be detained until this war 

is over. 

And we have released those that have been detained—plucked off 

the battlefield, detained, that have returned to the battlefield to 

kill Americans. This is a failed system, and I want you all to comment on this. 

General WALKER. Congressman, I believe there are two issues 

that come into play there. 

The first, again as we have mentioned, is the detention process 

as opposed to the military commissions process where individuals 

would be potentially prosecuted and held accountable for their actions. That is the balance of trying to achieve balance of accountability for the law of war and violations of the law of war, and, at 

the same time, maintain those standards of justice. 

The individuals—there is, to my knowledge, some evidence of individuals who have been released from Guantanamo and returned 

to the battlefield. But our testimony today, what we were focusing 

on, or attempt to focus more, was the military commissions when 

we are actually bringing the individuals to their responsibility; 

which is at, of course, a later point in time. 

General RIVES. Congressman, I would say we are holding the detainees because they are belligerents and because they are active 

participants in the current conflict against the United States and 

our coalition partners. We need to continue to hold them until we 

are convinced they are no longer a threat to us. 

Admiral MACDONALD. And Congressman, as you said, the law 

enforcement model does not work in this instance. That is why, in 

terms of prosecutions and in terms of detention, we look to the law 

of war, because it gives us the power to do both. 

General BLACK. We can’t be one-sided on this, sir. We have to 

apply the rule of law evenly and fairly across the board. And I certainly understand your perspective and your viewpoint. 

And as a soldier and as the father of a soldier who is currently 

serving in Iraq, I share your concerns in many respects. But again 

the even-handed application of the rule of law has to be at the forefront of our national policy in my view. And I believe that we execute our responsibilities pretty darn good. 

Is the system perfect? No, sir. And as you have noted, there have 

been detainees who have returned to the battlefield. But I think, 

by and large, it is a system that is managed by men and women 

of good character and good heart, who are trying to do the very 

best they can to do what is right every single time, and to keep our 

Nation’s best interests and the rule of law at the forefront. 

Mr. COFFMAN. Thank you for your testimony, gentlemen. And 

again I would stress that terrorism, and that our enemies are fight-
27 

ing us, and this is—we are engaged in a war. And I don’t think 

that that is the view of this Administration, but it is certainly my 

view. 

I yield back the balance of my time. 

The CHAIRMAN. I thank the gentleman. 

Mr. Kratovil, you were next on the list. Do you wish to use your 

time? 

Mr. KRATOVIL. No. 

The CHAIRMAN. The gentleman yields back. 

In that event, it appears, Mr. Larsen. 

Mr. LARSEN. Thank you, Mr. Chairman. Just a few questions to 

clarify some things for me. 

I remember being here in 2006 and getting the MCA put together. And I think we made a lot of errors in putting the MCA 

together, which got us to today and barely got us through the last 

three years of implementing the MCA. 

But, I am not an attorney, but of course over the last couple of 

years I have been able to try to at least get up to speed on some 

of the concepts that we have struggled with to create a system that 

can apply for detainees. 

And I have a very general question to start—and a yes or no 

might be appropriate, I will let you all decide. But in your view, 

have we prosecuted and convicted detainees to the point that 

Americans have got the justice that we deserve? 

There is all this talk about, you know, should, you know, all 

these rights that we might give to terrorists. I don’t—I am not concerned about that. I am more concerned about the justice for the 

victims of 9/11, justice for Americans in this process. Have we prosecuted and convicted detainees to the point where we can say that 

we got the justice we deserve? 

General BLACK. My view, sir, no. We have been mired. This has 

been a time-consuming and extraordinarily lengthy process. The 

best thing we can do for the American people and for the detainees 

is to move the process forward, get these rules put into effect and 

get the process moving. 

Admiral MACDONALD. Congressman, in—when I talked about the 

Classified Information Procedures Act, many of these cases, if not 

all of them, involve classified evidence. The trial teams will tell you 

that they have been mired down because they don’t have a set of 

procedures that are rational, that make sense, and that can move 

the process along. 

And that is why I think General Rives and I kind of focused on 

CIPA as an important aspect of improving the Military Commissions Act because it will do just that; it will speed the prosecutions 

that are going to take place under this act. 

General RIVES. Congressman, my answer to your question is no. 

And the brief reason why not is the process for the current military 

commissions was set in motion by executive order on November 13, 

2001. We have only had three complete prosecutions under it. 

If Americans were getting justice, we would have had a process 

that had a greater sense of urgency, emphasis on fairness, and procedures that are respected in the international community. But we 

should have had more prosecutions before now. 
28 

General WALKER. I concur that justice delayed is rarely justice 

served. And I think the speed of prosecutions will help everything. 

That is what we hope some of these changes to the Military Commissions Act will enable us to do. 

I can say that there has been greater progress of late than in the 

first couple of years under the Military Commissions Act, and I am 

hopeful we can continue that momentum. 

Mr. LARSEN. Another generalized question here. On June 12 of 

last year, in a 5–4 decision, the Supreme Court rejected the view— 

well, they held that detainees being held at Guantanamo have a 

habeas corpus privilege under the suspension clause of the Constitution. And the Court also held that section 7 of the MCA is an 

unconstitutional suspension of right, because its procedures to review the status of detainees are not an adequate and effective substitute for habeas corpus. 

There have been comments here by a lot of good folks on the 

committee and in Congress that the remaining detainees being 

held at Guantanamo are in fact dangerous. Given that 5–4 decision 

last year and these statements, can we say that each and every one 

of the detainees that is there is dangerous, does belong there, is 

rightfully there, and ought to be prosecuted? Do we actually know 

that? 

General BLACK. Sir, we can say that each of the detainees that 

is currently at Guantanamo, they have all been the subject of a 

combatant status review tribunal that looked at the circumstances 

of their capture and all the facts and circumstances surrounding 

their background and has made a determination that they should 

be retained in custody. 

So without specific cases and specific knowledge, I can’t go any 

further than that. 

Admiral MACDONALD. And, Congressman, that is exactly what 

the President set up with these task forces on January 22. One of 

them was to do just that, is to look at all of the detainees at Guantanamo and sort them—those that would be continued in detention 

because they continue to pose a threat to our national security, and 

those that have committed crimes such that they need to go before 

a commission. 

Mr. LARSEN. Fair enough. Thank you. 

The CHAIRMAN. I thank the gentleman. 

The gentleman from Texas, Mr. Conaway. 

Mr. CONAWAY. Thank you, Mr. Chairman, I appreciate that. Gentlemen, thank you for being with us today. 

Admiral MacDonald, you have talked a couple of times—at least 

asserted—that the handling of classified information under the existing structure is flawed. Could you articulate for us something 

other than just that assertion, and also give us some examples of 

where prosecutors have not been able to introduce evidence that 

they would have been able to introduce under your scheme? 

Admiral MACDONALD. Congressman, in talking to a number of 

the prosecutors, under the current scheme in the MCA, they are 

having to submit written declarations to the court, the military 

judges, and they are not able to take part in ex parte hearings that 

a Federal prosecutor can get under CIPA. 
29 

This has really, in their opinion, bogged down the process because the judge is asking them to put it in writing. The judge then 

has to review these written submissions, respond back. There is additional work that needs to be done. There is a lot of back-and-forth 

that has been going on. 

Mr. CONAWAY. Okay. So it really is a timing issue as opposed to 

us not being able to make the decision you talked about earlier, 

that we either disclose sources and methods or we walk away from 

prosecution. That hasn’t happened under this current scheme, it is 

just a matter of how much time it is taking to get from point A 

to point B; is that the gist? 

Admiral MACDONALD. Yes, sir. They are saying it is a more efficient system under CIPA. 

Mr. CONAWAY. But still protects the classified information completely. 

Admiral MACDONALD. Yes, sir, it does. 

Mr. CONAWAY. Just an editorial comment. Well, first off, is there 

a bright line on the definition of—and General Rives, you said 

cruel, inhuman and degrading treatment. Is there a spectacularly 

bright line for that definition? 

General RIVES. No, there is not. 

Mr. CONAWAY. Okay. So every court is going to have to decide 

for themselves. 

General RIVES. Yes. 

Mr. CONAWAY. Okay. Who sets the international standards you 

have been holding us accountable to? Each one of you have mentioned international standards for whatever. Who set those standards? Did we have a role in helping set those standards? 

Admiral MACDONALD. Well, Congressman, I would say on the 

international criminal tribunals that we talked about, the United 

States has supported those tribunals and the rules that are in effect in those tribunals. 

Mr. CONAWAY. So that is collectively? Every time you have mentioned international standards, that is the standard which you 

refer to? 

Admiral MACDONALD. And then there are other standards that 

have come up through the law of war over the years. 

Mr. CONAWAY. And did we as Americans participate in those developments? 

Admiral MACDONALD. Yes, sir. 

Mr. CONAWAY. Okay. Are there instances—are there other instances where we disagreed with those international standards because they don’t believe—we don’t believe they protect our interests 

properly, and made a conscious choice to do something different 

than those standards? Just think about that. If you get by with an 

answer, that is fine. 

I am going to yield the rest of my time to my colleague from Virginia, Randy Forbes. But we ought to do what is right, what respects law, what is respectful for law and order and all those kinds 

of things, just because that is the right way to do it. 

I am unpersuaded, each time each one of you said it, that we 

only do that or that one of the reasons to do that is because we 

want to expect our soldiers, and sailors, and marines and airmen 

to be treated that way from other countries. I can’t imagine an-
30 

other country is going to raise their standards because of that. We 

ought to do it just because it is the right thing to do. 

With that, Mr. Chairman, I yield back to—I yield the rest of my 

time to Mr. Forbes. 

Mr. FORBES. General Black, you mentioned in response to Congressman Coffman that we need to apply the law and we need to 

do that evenly. But I just want to point out, that is what we are 

doing right now. We are writing the law. And whatever we write 

is what we are going to be applying. That is why Congressman 

Coffman asked that question, because we need to write it correctly. 

Also, the task force. Admiral MacDonald mentioned that the Justice Department has been looking at these tribunals. There was a 

memorandum on May 4 where, as you know, the Assistant Attorney General said that there was a serious risk that Federal courts 

would adopt a constitutional due process approach when evaluating 

military commission tribunals if they were brought to the United 

States. And the Zabadas case—as all of you, I know, can quote 

backwards and forwards—says it is well established that certain 

constitutional protections available to persons inside the United 

States are unavailable to aliens outside of our geographical borders, but once an alien enters the country the legal circumstances 

change. 

I would ask if there is not a single one of you that, if you were 

defending one of these detainees, wouldn’t use this as a precedent, 

if they were here, to say full constitutional protections applied once 

they entered U.S. soil. 

And also if you were prosecuting a case outside of U.S. soil, if 

you wouldn’t use this as precedent to simply say, no, there is a difference because look at this case. And my good friend, Mr. Larsen, 

raised the Boumediene case, but that only applied to habeas corpus. It didn’t apply to all of the others. 

If any of you disagree with what I have said, please respond to 

that. I only have got a few seconds. 

I take that as an agreement, and I yield back my time, Mr. 

Chairman. 

The CHAIRMAN. That is one way to get an answer. 

Dr. SNYDER. Mr. Chairman, I would like to hear them amplify 

on—I mean, that is a complicated, fairly hurried question there. I 

would suspect that they—— 

Mr. FORBES. Mr. Chairman, I didn’t want to cut them off, but I 

only had—— 

The CHAIRMAN. Dr. Snyder, we don’t have time for that. Thank 

you. 

Would you like to comment further? 

Mr. FORBES. No, Mr. Chairman. 

The CHAIRMAN. Mr. Murphy, you are next on my list. Have you 

not claimed your time? Go ahead. 

Mr. MURPHY OF PENNSYLVANIA. Thank you, Mr. Chairman. Mr. 

Forbes, I would just like to say there is no one on this side of the 

aisle that I am aware of, or in this Administration, that is making 

the argument that detainees captured on the battlefield, whether 

it is in Iraq or Afghanistan, should get the same constitutional 

rights as Americans. 
31 

Now, if you were going to get tried in a commission, a military 

commission under the MCA, and the MCA that is going to be revised by this Congress of the United States and signed into law, 

hopefully, by the President as soon as possible, then you get some 

rights under international law, which we did sign in past Administrations. But if you are an American, you get a whole heck of a lot 

more constitutional rights. 

But I would just say that one of those constitutional rights that 

we are given on that as an argument is that we are giving them 

the right to counsel. 

Mr. FORBES. Would the gentleman yield? 

Mr. MURPHY OF PENNSYLVANIA. I would yield to you. 

Mr. FORBES. And I would tell my good friend that I am not suggesting that you would argue that. What I am saying is that the 

current Attorney General’s Office has warned the commissions, if 

you have the commissions here—the task force that is looking at 

a commission—if you bring the commissions here, there is a serious 

risk that, regardless of what any of us want, those full constitutional protections could be applied. 

And if you look at the Zabadas case, it certainly makes a big distinction when you bring them to U.S. soil versus keeping them outside. And my only purpose was to say we may have good intentions 

not to do it, but once we bring them here, they may be out of our 

hands. And I yield back. 

Mr. MURPHY OF PENNSYLVANIA. And I will take back my time. 

I think that the legal interpretation as I read it, in reading the 

same case and the same opinion by the Attorney General of the 

United States, is saying that they are granted—if you do bring 

them under the soil of our country, that they would get habeas corpus, which is not the same as having the whole spectrum of constitutional rights. And so, you know, we could agree to probably 

disagree on that point. 

And I would also like to mention, you know, Mr. Conaway, that 

these are previous Administrations that we signed under the Geneva and Hague Conventions and really stood on what the values of 

the United States of America is. And we have disagreed with our 

colleagues across the oceans over in Europe. We did not sign an 

International Criminal Court because it basically said you won’t 

defer to our courts or our courts martial. And that if we are going 

to have a court martial, we want to try our soldiers for committing 

crimes even, if they are overseas, and we don’t want to defer to the 

ICC, the International Criminal Court. 

So there are times when we disagree with our allies across the 

river, and that is a healthy debate. But they respect our opinion 

because they actually respect what we get done in military justice 

via the UCMJ. So I just want to make sure that we are making 

these distinctions. 

And I would also like to say to my colleague, Mr. Coffman—and, 

sir, I do absolutely respect your service. I would just say that there 

is no one on this side of the aisle that is trying to get our soldiers 

in the battlefield, these American heroes that are keeping our families safe in Iraq and Afghanistan, that are trying to make them 

cops, that are trying to say that they get Miranda rights, or they 

get an attorney on the battlefield or we have to—no one is saying 
32 

that. But we are saying that they should get a fair shake in a sense 

that we just can’t capture hundreds of people, wherever they are, 

and just say we are going to lock you up in Guantanamo and throw 

away the key. 

Mr. CONAWAY. Will the gentleman yield for a comment? 

Mr. MURPHY OF PENNSYLVANIA. Absolutely, Mr. Conaway. 

Mr. CONAWAY. The Global Initiative is in fact attempting to 

Mirandize folks across. 

Mr. MURPHY OF PENNSYLVANIA. Mr. Conaway, we argue—we 

both serve on the Intelligence Committee, we have had this argument. I would say that that has been radically blown out of—— 

Mr. CONAWAY. I am just commenting. You said they weren’t 

doing that, and this Administration is doing that. 

Mr. MURPHY OF PENNSYLVANIA. Well, I would say that. And Mr. 

Conaway, that we have made it clear that that is not the intent. 

And that is not my intent, and that will not happen as long as I 

am breathing on this Earth, that will not happen. With the best 

of my ability; I am not the President of the United States. So I 

can’t say. And I will yeild back. 

Mr. CONAWAY. Are you a dictator? I am not sure you have the 

authority to make that statement. 

Mr. MURPHY OF PENNSYLVANIA. Well now—all I am saying is 

that we need to put this in proper perspective. You know we are 

losing—we are doing our best to earn hearts and minds and capture and kill al Qaeda wherever they are roaming on this Earth, 

and we need to continue to do so. But that does not mean, and no 

one is suggesting here that that means we are going to start reading them Miranda rights and that means that we are going to give 

them an attorney when we capture them when we are fighting in 

Kabul—when we are fighting—. 

You can snicker and you can laugh, but that is not what we are 

asking for. What we are asking for is proper justice under what we 

have asked other countries to do in the Geneva and Hague Conventions. And these servants, these men who wear the cloth of our 

country, are trying to do the best that they can and advise us. 

And so I do want to salute all of you. I know this is not easy. 

I know, frankly, when I was in Baghdad and we lost soldiers, I 

wanted to go out and ring some people by their neck and kill them 

myself with my own hands. And, frankly, I still want to do that. 

But at the end of the day—and we have men and women that still 

do that. 

But we need to make sure that when we bring them to a court, 

whether it is a criminal court, a military commission or—and 

again, we are asking and arguing that it should be a military commission for these folks, not an Article III, meaning the same courts 

that we use in America. A commission, a military commission 

court. That there are some standards that we still must abide by, 

that we agree to, and we must have fidelity to those commitments. 

And I yield back the balance of my time. 

The CHAIRMAN. I thank the gentleman for his comments. 

It appears that Ms. Fallin is the last one on the list. Please proceed. 

Ms. FALLIN. Thank you, Mr. Chairman. This discussion is very 

interesting and very passionate, too. 
33 

When questioned by the Senate Repub—Senators at the Senate 

Armed Services Committee at a July 7 hearing, Administration officials said they believe detainees had some constitutional rights in 

addition to the habeas corpus, but could not articulate which ones 

or why they deserve constitutional protections. And since we are already talking about this, I was just curious if you could expand 

upon that particular comment back from the Senate hearings on 

July 7. 

Admiral MACDONALD. Well, ma’am, I was at the hearing, and I 

would disagree with that. Again, I think it depends on what model 

you are using to analyze what rights are due. We would look to the 

law of war. And we believe that under the law of war, the process 

that is due is contained in the Military Commissions Act as improved by the SASC language in there. I think the Administration 

disagrees with that or they believe that the law is unsettled on 

that and that there is, as was pointed out, there is risk associated 

with bringing them here. 

General BLACK. I might add, ma’am, that the 2006 Military Commissions Act and the Senate bill that you are currently considering 

both contain rights and privileges that are almost identical—indeed, are identical—to privileges and rights that are contained in 

our Constitution: the right to counsel, the right to confrontation, et 

cetera. 

Ms. FALLIN. So you believe the protections are there. 

General BLACK. There are some. There were built in. 

Ms. FALLIN. Are some. 

General BLACK. That is correct. 

Ms. FALLIN. Do they need to be refined? 

Admiral MACDONALD. Well, as we have testified, and as you can 

see in our written statements, we do recommend in a couple of 

areas that the Senate bill be improved. But at the end of the day, 

with those improvements we believe that it complies with the law 

of war. 

General RIVES. And I don’t believe there are any additional protections needed to make the commissions process comply with the 

United States Constitution. I believe it does comply with the Constitution and with international law already. We are talking about 

some enhancements that will help the fairness of the process. 

Ms. FALLIN. Mr. Chairman, I have one other question, if I can. 

Generals Black and Walker, back in 2006, you testified in front 

of this committee—that we were putting the MCA together for the 

first time—and you testified that you felt the standards for hearsay 

evidence were consistent with what is accepted in the international 

legal community for war crime trials, citing specifically the International Criminal Tribunal of Yugoslavia (ICTY). 

Have you changed your opinion? And if so, why? 

General BLACK. I have not, ma’am. The rules that we are putting 

together—that we put together in the 2006 Military Commissions 

Act and the rules that appear in the current bill meet or exceed 

the standards that are applied in the International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for 

Rwanda. So I have not changed my views in that regard. 

General WALKER. I also, ma’am, have not changed my views. I 

think we meet the standards that were established—in ICTY, and 
34 

other law of war where we have—if there has been a change, we 

have noted some disagreement with some of the proposed changes 

to those rules in the 2006 Military Commissions Act. 

Ms. FALLIN. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Ms. Fallin. 

It appears no one else wishes to interrogate. 

I wish to thank the panel for their expertise and for their service. 

Reference was made a moment ago about the international rule 

of law, and I suppose basically that is a reference to the Geneva 

Convention and the determinations as it applies. That is why we 

are here. We are at war. If we were not at war today, we would 

not have this hearing. 

And it is important that those of us that look at this understand—and I know that we do. And any comments to the contrary 

just don’t hold water. We are at war. That is why we are taking 

the time to do it right. 

And as I said before—and I know I look at it like a country prosecutor that I was—when one is convicted by any jurisdiction, including but not limited to the tribunals, you want it to stick, you 

want it done right. You don’t want it to be reversed on a procedural 

error or a substantive error. 

And that is why we are here, to help prosecute in our own way 

the effort via the young men and young women who wear the uniform and who are protecting us so valiantly. 

Gentlemen, thank you for your testimony. I thank the committee. 

The committee is adjourned. 

[Whereupon, at 4:00 p.m., the committee was adjourned.] 
A P P E N D I X 

JULY 16, 2009 

PREPARED STATEMENTS SUBMITTED FOR THE RECORD 

JULY 16, 2009 

(39) 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
WITNESS RESPONSES TO QUESTIONS ASKED DURING 

THE HEARING 

JULY 16, 2009 

(65) 

RESPONSE TO QUESTION SUBMITTED BY DR. SNYDER 

General WALKER. Federal criminal law could apply to both of these scenarios. 

(a) According to 18 USC § 7(3) (2009), the term special maritime and territorial 

jurisdiction of the United States, as used in Title 18, include ‘‘[a]ny lands reserved 

or acquired for the use of the United States, and under the exclusive or concurrent 

jurisdiction thereof . . .’’ 

(b) Article III of the Agreement Between the United States and Cuba for the 

Lease of Lands for Coaling and Naval stations, February 23, 1903 (TS 418, 6 

Bevans 1120), states that ‘‘during the period of the occupation by the United States 

of said areas under the terms of this agreement the United States shall exercise 

complete jurisdiction and control over and within said areas . . .’’ 

(c) These two provisions, read together, allow for the application of federal criminal law to crimes committed on GTMO. This proposition is supported by Federal 

case law. (See, e.g., Gherebi v. Bush, 352 F.3d 1278, 1289 (9th Cir. 2003) (persons 

committing crimes on GTMO are subject to trial in US courts); United States v. Lee, 

906 F.2d 117, 117 (4th Cir. 1990) (Jamaican national charged under Federal law 

for crime committed on GTMO)). 

(d) Accordingly, various sections in Chapter 51 (homicide) of Title 18 of the United 

States Code could apply to the murder scenario. E.g. 18 U.S.C § 1111(b) (making 

punishable murder in the first and second degrees ‘‘[w]ithin the special maritime 

and territorial jurisdiction of the United States’’). The theft scenario could be prosecuted under 18 USC 661. 

3. Related Scenarios. The questions raised by the HASC logically lead to permutations of the proposed scenarios, which should be addressed. For instance, if the detainee killed a U.S. service member at GTMO, federal criminal law could be used 

to prosecute the detainee, but there may be other statutes that provide jurisdiction. 

(a) First, we address the Uniform Code of Military Justice (UCMJ). The UCMJ 

might apply to detainees through Article 2(a)(12) [10 U.S.C. § 802 (a)(12)] which, 

‘‘[s]ubject to any treaty or agreement to which the United States is or may be a 

party or to any accepted rule of international law,’’ makes subject to the UCMJ ‘‘persons within an area leased by or otherwise reserves or acquired for the use of the 

United States which is under the control of the Secretary concerned and which is 

outside the United States and outside the Commonwealth of Puerto Rico, Guam, 

and the Virgin Islands.’’ 

(b) The Military Commissions Act (MCA) could possibly be used to prosecute detainees at GTMO for a murder, but not for a theft. The MCA addresses thefts on 

the battlefield in the sense of pillage, which does not seem to be a theft offense of 

the nature proposed. 

(c) The MCA extends jurisdiction over ‘‘murder of a protected person’’ (10 U.S.C. 

§ 950v(b)(1)), and ‘‘murder in violation of the law of war’’ (10 U.S.C. § 950v(b)(15)). 

A ‘‘protected person’’ is specifically defined in the MCA (10 U.S.C. § 950v(a)(2)), and 

could include another detainee because they are entitled to the protections of common article 3 of the Geneva Conventions. 

4. Conclusion. If a detainee killed a fellow detainee, he could be charged pursuant 

to our federal criminal code (Title 18). If a detainee commits a theft, federal criminal 

law could apply depending upon the nature of the theft. The UCMJ and MCA might 

offer other avenues to prosecute. [See page 16.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

JULY 16, 2009 

(69) 

QUESTIONS SUBMITTED BY MR. SKELTON 

Mr. SKELTON. In your oral testimony, you referred to law-of-war precedent for 

prosecuting individuals who were minors when the law-of-war violations are alleged 

to have occurred. Please provide citations to this precedent and your assessment of 

its application to the applicable cases of detainees currently in Guantanamo Bay, 

Cuba. 

Admiral MACDONALD. In the aftermath of the Second World War, both French 

and British military tribunals prosecuted and convicted minors for war crimes. (See 

Trial of Alois and Anna Bommer, United Nations War Crimes Commission, Law Reports of Trials of War Criminals (Vol. 9) 66 (1947)—three daughters convicted of 

war crimes committed when two of the girls were between 16 and 18, and one 

daughter was between 13 and 16), see also the Belsen Trial (United Nations War 

Crimes Commission, Law Reports of Trials of War Criminals (Vol. 2) (1947)—war 

crimes convictions of individuals who served in myriad capacities at Bergen-Belsen 

Concentration Camp under the age of 21). 

In my view those cases are not directly relevant to the possible war crimes prosecutions of detainees at Guantanamo or to the possible war crimes prosecutions of 

persons detained in the future course of the ongoing armed conflict against al Qaeda 

and associated forces. Rather, I believe the practice of modern war crimes tribunals 

is more appropriate. 

The International Criminal Court (ICC) allows for war crimes prosecutions under 

National systems of justice, of persons who were between the ages of 16 and 18 at 

the time of their alleged misconduct, but prohibits war crimes prosecutions in National systems of justice for persons who were aged 15 or below at the time of the 

alleged misconduct. The ICC itself does not have jurisdiction over persons under the 

age of 18. 

The International Criminal Tribunals for Rwanda and the former Yugoslavia, do 

not have specific rules prohibiting or limiting war crimes prosecutions based on age. 

Rather, the age of an individual accused would be a factor to be considered in determining competence or capacity to stand trial and mens rea for any particular offense. To date, those tribunals have not included prosecutions of minors or persons 

who were under age 18 at the time of their alleged misconduct. 

The Special Court for Sierra Leone, set up jointly by the Government of Sierra 

Leone and the United Nations, and which has to deal with a large number of ‘‘child 

soldiers’’ alleged to have committed war crimes, has jurisdiction over persons who 

were 15 years old (or older) at the time of their alleged misconduct. The Special 

Court has a well developed and separate justice process for juvenile offenders that 

incorporates safeguards to minimize the stigma that may attach to such persons as 

well as limits on punishments that may be imposed. Those safeguards generally 

track internationally recognized standards for the adjudication and rehabilitation of 

juvenile offenders. 

Mr. SKELTON. In your written testimony, you seem to advocate for a two-track approach for determining the admissibility of allegedly coerced statements. If a statement was elicited for the purpose of intelligence in the proximity of the battlefield, 

the statement should be admitted if the interrogator was acting in accordance with 

the laws of war. If the statement was elicited for the purpose of a possible prosecution or was secured in a location that is not close to the battlefield, then you seem 

to argue for applying a totality of the circumstances analysis to determine the voluntariness of the statement and thus its admissibility. Is that correct? If so, are the 

considerations for the totality of the circumstances test which the Administration 

has proposed in response to the Senate language acceptable in your estimation? 

How would you define ‘‘proximate to the battlefield’’? Would interrogations that occurred in a Theater Internment Facility fall within your second track—that is locations that are not proximate to the battlefield? How about at an internment facilities below the TIFs? 

Admiral MACDONALD. I have consistently advocated a standard for determining 

the admissibility of statements of an accused that recognizes the distinction between 

a voluntariness standard that is appropriate in settings where the interrogation appears to be akin to a law enforcement interrogation, and a reliability standard that 
70 

is appropriate in settings where a Soldier or Marine is conducting an interrogation 

at the point of capture for purposes of security, safety and mission accomplishment. 

Suppression rules have generally developed in order to deter conduct which we as 

a society find unacceptable on the part of law enforcement personnel. On the field 

of battle, conducting an interrogation at the point of capture in a manner that conforms with the law of war is exactly what we expect of our servicemembers. 

My goal has been to ensure that battlefield interrogations are treated differently 

from non-battlefield interrogations. But I have not been seeking a ‘‘carve-out’’ from 

voluntariness that exceeds the need for safety of our troops and mission accomplishment. I do, however, believe that an explicit statutory distinction should be made 

between statements that would be tested for voluntariness, and statements taken 

at the point of capture or in closely related combat engagements surrounding the 

point of capture. The latter would be tested for reliability, so long as admission of 

the statement would be in the interests of justice. 

Where the line is drawn between statements that fall within one test and statements that fall within another is a question that is best left to the military judges 

who will have to apply the statute, and the question will ultimately depend on the 

facts surrounding a given case. Point of capture may be a place in a room, a room, 

a building, or a city block or more, depending on the circumstances. 

I offer two draft proposals for your consideration. The first proposal is the one I 

recommend you use. 

§ 948r. Treatment of statements obtained by torture or cruel, inhuman, 

or degrading treatment; self-incrimination; other statements by the accused 

(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR 

CRUEL, INHUMAN, OR DEGRADING TREATMENT.—No Statement obtained by use of torture or by cruel, inhuman, or degrading treatment (as 

defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 

2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made. 

(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to 

testify against himself at a proceeding of a military commission under this 

chapter. 

(c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may be admitted in evidence in a military commission under this 

chapter only if one of the following conditions is met: 

(1) the statement was made during a force-protection, tactical, or intelligence interrogation in reasonable proximity in time and location to 

the point of capture; the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and the interests of justice would best be served by admission of the statement into 

evidence. In determining the issue of reliability, the military judge 

shall take into consideration all of the circumstances surrounding the 

taking of the statement, including but not limited to the degree to 

which the statement is corroborated and the indicia of reliability within 

the statement itself. 

(2) the statement was voluntary. In determining whether a statement 

was voluntarily given, the military judge shall consider the totality of 

the circumstances, including, as appropriate, the details of the taking 

of the statement, accounting for the circumstances of the conduct of 

military and intelligence operations during hostilities; the characteristics of the accused, such as military training, age, and education level; 

and the lapse of time, change of place, or change in identify of the questioners between the statement sought to be admitted and any prior 

questioning of the accused. 

(d) OTHER USES PERMITTED.—Notwithstanding the above, where the 

statement was not obtained by use of torture or by cruel, inhuman, or degrading treatment, this section does not prohibit use of the statement to impeach by contradiction the in-court testimony of the accused or the use of 

such statement in a later prosecution against the accused for perjury, false 

swearing, or the making of a false official statement. 

I also support the following language, which has the support of the Administration, and the Army and Air Force Judge Advocates General, the Staff Judge Advocate to the Commandant of the Marine Corps, and the Legal Counsel to the Chairman of the Joint Chiefs of Staff: 
71 

‘‘§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, 

or degrading treatment; prohibition of self-incrimination; admission of 

other statements of the accused 

‘‘(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR CRUEL, INHUMAN, 

OR DEGRADING TREATMENT.—No statement obtained by use of torture or by 

cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color 

of law, shall be admissible in a military commission under this chapter, except 

against a person accused of torture or such treatment as evidence that the 

statement was made. 

‘‘(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to testify 

against himself at a proceeding of a military commission under this chapter. 

‘‘(c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may 

be admitted in evidence in a military commission under this chapter only if the 

military judge finds— 

‘‘(1) that the totality of the circumstances renders the statement reliable 

and possessing sufficient probative value; and 

‘‘(2) at least one of the following: 

‘‘(A) That the statement was made incident to lawful conduct during 

military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be 

served by admission of the statement into evidence. 

‘‘(B) That the statement was voluntarily given. 

‘‘(d) DETERMINATION OF VOLUNTARINESS.—In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge 

shall consider the totality of the circumstances, including, as appropriate, the 

following: 

‘‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during 

hostilities. 

‘‘(2) The characteristics of the accused, such as military training, age, and 

education level. 

‘‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused. 

Mr. SKELTON. In your oral testimony, you referred to law-of-war precedent for 

prosecuting individuals who were minors when the law-of-war violations are alleged 

to have occurred. Please provide citations to this precedent and your assessment of 

its application to the applicable cases of detainees currently in Guantanamo Bay, 

Cuba. 

General RIVES. My testimony included the statement that, ‘‘The law of war does 

not speak to the issue of minors as combatants . . .’’ (emphasis added). Where the 

law of war speaks to the issue of age is in the Geneva Convention on the Protections 

of the Civilian Populations. Article 14 calls on States to create special safety protections for civilians, including children under the age of 15. In the 2002 Protocol to 

the Convention on the Rights of the Child, international law requires States to take 

special precautions when persons under the age of 18 are recruited into the States’ 

armed forces. 

There have been circumstances where national courts (in France and Great Britain) prosecuted minors in the years following World War II, but they involve circumstances not analogous or applicable to the cases of the detainees at Guantanamo. 

More recent rules established by the United Nations tribunals for the Former 

Yugoslavia and Rwanda do not prohibit or limit prosecution of individuals based on 

age. Instead the age of the individual is a factor to consider in determining whether 

they have the capacity to stand trial. Tribunals established for Sierra Leone, as well 

as the International Criminal Court, establish age standards: minimum age of 15 

or older for the Special Court for Sierra Leone; no trial permitted for persons 15 

years old or younger when the offense allegedly occurred. 

I believe the criteria established by the tribunals for the Former Yugoslavia and 

Rwanda are the right ones to adopt for the MCA. We should permit the convening 

authority and the commission judges to take into account an individual’s age, but 

the facts of a given case should determine whether, and to what extent, a minor 

should be prosecuted for war crimes. 

Mr. SKELTON. In your written testimonies, you argue against eliminating the current appellate court to military commissions, the Court of Military Commissions Review, as the SASC has proposed. Please elaborate as to why you believe that the 
72 

CMCR is better suited than the Court of Appeals for the Armed Forces to review 

these cases? 

General RIVES. I fully support the appellate structure established by the Military 

Commissions Act of 2006. The current structure, with review by the Court of Military Commissions Review with further appeal to the U.S. Court of Appeals for the 

District of Columbia and the U.S. Supreme Court, provides comprehensive review 

by appellate military judges experienced in military law and operations, with additional review by the Federal appellate court with jurisdiction over related detainee 

litigation. 

I also fully support broadening the scope of CMCR review to include factual sufficiency. This enhancement will align the scope of review with that employed by the 

Service Courts of Criminal Appeals and provide the additional assurance of thorough review of the underlying facts that supported the conviction. 

I concur with the Administration on this point and recommend against the SASC 

proposal to expand CAAF jurisdiction. Retaining the CMCR, composed in whole or 

part of appellate military judges experienced in reviewing cases for both factual and 

legal sufficiency, as well as military operations, is logical and efficient. 

Mr. SKELTON. In your written testimonies, you argue against eliminating the current appellate court to military commissions, the Court of Military Commissions Review, as the SASC has proposed. Please elaborate as to why you believe that the 

CMCR is better suited than the Court of Appeals for the Armed Forces to review 

these cases? 

General BLACK. CAAF’s role and responsibility under the UCMJ, to conduct a 

legal review of courts-martial, is well-defined. I do not believe it should be encumbered with a separate set of responsibilities or the requirement to conduct a factual 

as well as a legal review. The CMCR, on the other hand, can consist, in whole or 

in part, of appellate military judges schooled in the application of a factual sufficiency review and experienced in military law and operations. Therefore, the CMCR 

is best suited to conduct this first level appellate review of Military Commissions 

proceedings. I concur with the Administration on this point and recommend against 

the SASC proposal to expand CAAF jurisdiction under the circumstances. 

Æ