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36–934 PDF 2007

S. HRG. 109–949

THE AUTHORITY TO PROSECUTE TERRORISTS

UNDER THE WAR CRIME PROVISIONS OF

TITLE 18

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

WEDNESDAY, AUGUST 2, 2006

Serial No. J–109–103

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 191

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2

prepared statement .......................................................................................... 193

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Black, Scott C., Major General, Judge Advocate General, U.S. Army, Washington, D.C. ........................................................................................................... 7

Bradbury, Steven, Acting Assistant Attorney General, Office of Legal Counsel, 

Department of Justice, Washington, D.C. .......................................................... 4

MacDonald, Bruce, Rear Admiral, Judge Advocate General, U.S. Navy, Washington, D.C. ........................................................................................................... 8

Myers, Richard B., General, former Chairman, Joint Chiefs of Staff, Washington, D.C. ........................................................................................................... 6

Rives, Jack, Major General, Judge Advocate General, U.S. Air Force, Washington, D.C. ........................................................................................................... 9

Sandkuhler, Kevin M., Brigadier General, Director, Judge Advocate Division, 

U.S. Marine Corps, Washington, D.C. ................................................................ 10

QUESTIONS AND ANSWERS 

Responses of Scott Black to questions submitted by Senators Specter, Durbin, 

Feinstein, and Leahy ........................................................................................... 33

Responses of Steven Bradbury to questions submitted by Senators Leahy, 

Durbin, Specter, Feinstein, and Kyl ................................................................... 61

Responses of Bruce MacDonald to questions submitted by Senators Specter, 

Durbin, Feinstein, and Leahy ............................................................................. 81

Responses of Richard B. Myers to questions submitted by Senators Specter 

and Feinstein ........................................................................................................ 97

Responses of Jack Rives to questions submitted by Senators Specter, Durbin, 

Feinstein, and Leahy ........................................................................................... 99

Responses of Kevin M. Sandkuhler to questions submitted by Senators Leahy, 

Durbin, Specter, and Feinstein ........................................................................... 128

SUBMISSIONS FOR THE RECORD 

Black, Scott C., Major General, Judge Advocate General, U.S. Army, Washington, D.C., prepared statement ....................................................................... 183

Bradbury, Steven, Acting Assistant Attorney General, Office of Legal Counsel, 

Department of Justice, Washington, D.C., prepared statement ...................... 186

MacDonald, Bruce, Rear Admiral, Judge Advocate General, U.S. Navy, Washington, D.C., prepared statement ....................................................................... 195

Rives, Jack, Major General, Judge Advocate General, U.S. Air Force, Washington, D.C., prepared statement ....................................................................... 198

Sandkuhler, Kevin M., Brigadier General, Director, Judge Advocate Division, 

U.S. Marine Corps, Washington, D.C., prepared statement ............................ 201

(1)

THE AUTHORITY TO PROSECUTE TERRORISTS UNDER THE WAR CRIME PROVISIONS 

OF TITLE 18 

WEDNESDAY, AUGUST 2, 2006 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman 

of the Committee, presiding. 

Present: Senators Kyl, Graham, Leahy, Kennedy, Feinstein, and 

Feingold. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. 

The Judiciary Committee will now proceed with our hearing following the decision of the Supreme Court of the United States in 

Hamdan v. Rumsfeld, where we will take up the issue of legislation 

to comply with the Supreme Court’s ruling to specify the war 

crimes, which are covered by Common Article 3 of the Geneva Convention. 

The provisions of 18 U.S. Code § 2441(c)(1) already incorporate 

the essential provision of Common Article 3 which requires humane treatment. In accordance with the requirements of the criminal law that there be specification, it is the responsibility of Congress to delineate what the specific offenses are. 

That specification of particularity is required by our criminal law 

in order to give those charged an adequate opportunity to defend 

themselves. We have already had some authoritative judgment 

that the proceedings at Guantanamo have violated Article 3. 

Major General Jack Rives, who will be testifying here today, testified on July 13, 2005: ‘‘Some of the techniques that have been authorized to be used in the past have violated Common Article 3,’’ 

and it is up to the Congress of the United States, under the provisions of Article 1, Section 8, to deal with capture on land and sea 

and to specify what is covered by ‘‘war crimes.’’ 

There has been a draft circulated, not officially, but available on 

the Internet which has disclosed, or at least reportedly disclosed, 

which provisions are in a draft bill being circulated by the administration. 

One of the provisions which is quoted today would give the Secretary of Defense the authority to add crimes under the Military 

2

Court’s jurisdiction, a military court to be set up by an act of Congress. 

At the outset, I have strong reservations about whether that authority can be undertaken by the Secretary of Defense, where there 

can be that kind of a delegation by the Congress of the United 

States. I, frankly, very much doubt it. 

We do have a provision in the Criminal Code on war crimes. I 

think it necessary for the Congress to take up a specific kind of 

conduct to be covered by the tribunal, however that is established, 

but we will have to give very serious thought to whether it is doable to have that delegated, to have the Secretary of Defense make 

those additions. 

With respect to the provisions of the tribunal themselves, the Supreme Court has apparently left considerable latitude. I say ‘‘apparently,’’ because you never know, until the next decision by the 

Supreme Court, if there are reasons for the limitations. 

But there are some matters which are of substantial concern. 

The issue of hearsay, for example, whether there may be standards 

established on reliability of hearsay. 

The issue of classified information, which some say should be 

made available to the defendant’s lawyer but not to the defendants 

themselves. That raises the issue of the right of confrontation. 

We do not deal with, necessarily, constitutional rights of confrontation in the Fifth Amendment, but a matter of basic fairness. 

Perhaps that can be handled analogous to the Confidential Information Protection Act. That is something we will have to look into. 

The draft circulated would prohibit evidence obtained by torture. 

That seems rather fundamental. If it permits evidence to come in 

under coerced confessions, that is a question which we will have to 

take up. 

But it has long been the rule in judicial proceedings in the 

United States that evidence obtained by coerced confessions would 

not be admissible, both on grounds of unfairness and on grounds 

of unreliability. 

I have discussed these issues with Chairman John Warner, who 

will be working coordinately with the Armed Services Committee. 

We have been working with the administration on preliminary 

analysis, and we face a very important task to protect the security 

of the United States in dealing with terrorism and establish procedures to satisfy the Supreme Court. 

My red light just went on, so I will now yield to the distinguished 

Ranking Member, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. 

The Chairman has convened this hearing today to consider the 

government’s authority to prosecute terrorists under the War 

Crimes Act. 

It has long been open to the administration to charge suspected 

terrorists, including those imprisoned at Guantanamo Bay, with 

Federal crimes. 

In addition to the War Crimes Act, Federal law provides criminal 

penalties for terrorism, torture, hostage-taking, and other acts that 

3

are considered grave breaches of the Geneva Conventions, irrespective of where these acts occurred. And unlike the international law 

of war, of course, Federal law allows you to prosecute for conspiracy, so there is ample authority under Federal law for the prosecution of international terrorists. 

But for various reasons—some good, and unfortunately some 

bad—the administration has made little use of that authority 

against suspected terrorists. As far as I can tell, the Ashcroft Justice Department and the Gonzales Justice Department have yet to 

file a single charge, not even one, against anyone for violation of 

the War Crimes Act. Nor has the administration made use of the 

processes and procedures set forth in the Manual for Courts Martial and the Uniform Code of Military Justice. 

Instead, the Bush-Cheney administration has pursued a twoprong strategy. First, with respect to the vast majority, the 700-

plus prisoners at Guantanamo and the unidentified prisoners held 

in secret prisons overseas, the administration has frankly stated it 

has no interest in trying them in any court, civilian or military. I 

disagree with them on their conclusion, but you at least have to respect the honesty of their statements, cynical as it might be. 

Second, the administration has decided to bring a small number 

of detainees before military commissions. Now, I have no objection, 

in principle, to the use of military commissions. 

Indeed, I introduced legislation to authorize procedures for military commissions back in February of 2002. I held hearings in 2001 

on the issue. I asked the administration to work with us on it. 

They said, no, they did not want to. They said they had a unilateral, and secret, procedure they were going to follow. 

Of course, what happens, instead of having military commissions 

that would have withstood the test of law, that go-it-alone approach had a predictable result: an embarrassing defeat in the U.S. 

Supreme Court. Not a single suspected terrorist has been held accountability by a military commission in the last 6 years. 

The court’s landmark separation of powers decision in Hamdan 

compelled the Bush-Cheney administration to finally come to Congress to request authorizing legislation. 

Mr. Chairman, I was encouraged to read the testimony that the 

uniformed witnesses provided before the Armed Services Committee which indicated that the starting point for legislation should 

be the well-established rules governing courts martial. I agree. 

But when the administration’s civilian lawyers, the people that 

do not actually have to do this, came before the committee, they, 

instead, argued that Congress should simply rubber stamp the 

problematic procedures that the Supreme Court had just shot 

down. It made no sense at all. 

What is at stake for all Americans, as these decisions are made, 

are our American values and the primacy in our system of government of the rule of law, something we like to say makes us different than a lot of the enemies we face. 

Today we have before us some of the uniformed witnesses who 

testified before the Armed Services Committee. I look forward to 

the testimony of the JAG officers. 

I might say, when I was in ROTC in college—Air Force ROTC, 

General Rives. My son took a different route. He went into the MaVerDate 0ct 09 2002 14:53 Aug 01, 2007 Jkt 036934 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36934.TXT SJUD1 PsN: CMORC
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rine Corps. They would not let me in because I was blind in one 

eye. 

But I wanted to become a JAG officer because they had been trying to uphold the best military justice traditions. I thank them for 

their service. I am sorry they have been cut out, often, from the 

administration’s deliberations. 

So I look forward to our consideration at this hearing, whether 

the War Crimes Act provisions should be expanded to include additional offenses. 

In the future, I hope at some point we can get the Committee together to consider, again, how to construct military commissions. 

Mr. Chairman, I will put my whole statement in the record. 

Chairman SPECTER. Without objection, the entire statement will 

be made a part of the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. We now turn to our first witness, who we 

would call, first. He is a representative from the Department of 

Justice, the Acting Assistant Attorney General in the Office of 

Legal Counsel, Steven Bradbury. 

He has a distinguished academic record. He has a Bachelor’s degree from Stanford, a magna cum laude law degree from the University of Michigan, an extensive practice in private law, law clerk 

to Judge James Beckley of the DC Circuit. 

We acknowledge the very substantial assistance that Mr. 

Bradbury has given to this Committee in working through some 

very difficult legal issues with the Department of Justice. 

Thank you for joining us, Mr. Bradbury. We look forward to your 

testimony. 

STATEMENT OF STEVEN BRADBURY, ACTING ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. BRADBURY. Thank you,Mr. Chairman, Senator Leahy, and 

members of the committee. I appreciate once again the opportunity 

to appear here today on behalf of the Department of Justice to discuss the question of war crimes prosecutions in the wake of the Supreme Court’s decision in Hamdan v. Rumsfeld. 

The administration believes that Congress needs to address the 

Supreme Court’s ruling in Hamdan that Common Article 3 of the 

Geneva Conventions applies to our own conflict with Al Qaeda. 

The United States has never before applied Common Article 3 in 

the context of an armed conflict with international terrorists, yet 

because of the court’s decision in Hamdan, we are now faced with 

the task of determining the best way to do just that. 

Many of the provisions of Common Article 3 prohibit actions that 

are universally condemned, such as murder, mutilation, torture, 

and the taking of hostages. 

It is undeniable, however, that some of the terms in Common Article 3 are inherently vague. For example, Common Article 3 prohibits outrages upon personal dignity, in particular, humiliating 

and degrading treatment. Of course, it is susceptible to uncertain 

and unpredictable application. 

5

Furthermore, the Supreme Court has said, in a long line of cases, 

that in interpreting the treaty provisions such as Common Article 

3, the meaning given to the treaty language by international tribunals must be accorded respectful consideration, and the interpretations adopted by other State parties to the treaty are due considerable weight. 

Accordingly, the meaning of Common Article 3, which, as a result 

of the court’s decision, is now the baseline standard that applies, 

including to the conduct of U.S. personnel in the War on Terror, 

is subject to the evolving interpretations of tribunals and governments outside the United States. 

We believe that the standards applicable to the crimes of terrorists, as well as those governing the treatment of detainees by 

United States personnel in the War on Terror, should be certain 

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

consistent with our international obligations. 

Of course, with respect to terrorists, it is our intent to prosecute 

them for their war crimes through military commissions authorized 

by Congress. 

In terms of our own treaty obligations as a Nation, we believe 

that one straightforward step that Congress could take would be to 

define our baseline obligations for the treatment of detainees under 

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

already adopted by Congress in the McCain amendment. 

Last year after a significant public debate on the standard that 

should govern the treatment of captured Al Qaeda terrorists, Congress adopted the McCain amendment as part of the Detainee 

Treatment Act. 

That amendment prohibits cruel and inhuman or degrading 

treatment or punishment, as defined by reference to the established meaning of our constitution, for all detainees held by the 

United States, regardless of nationality or geographic location. 

Congress rightly assumed that the enactment of the Detainee 

Treatment Act settled questions about the baseline standard that 

would govern in the War on Terror. We view this standard established by the McCain amendment as entirely consistent with, and 

a useful clarification of, our obligations under the relevant provisions of Common Article 3. 

Defining the terms of Common Article 3 as a treaty matter, however, is not only relevant for our treaty obligations, but is also important because the War Crimes Act, 18 U.S.C § 2441, makes any 

violation of Common Article 3 a felony offense. 

The administration believes that Congress should ensure that 

any legislation addressing the Common Article 3 issues created by 

the Hamdan decision will bring clarity and certainty to the War 

Crimes Act. 

One sure way to achieve that clarity and certainty, in our view, 

would be for Congress to set forth a definite and clear list of offenses serious enough to be considered war crimes punishable as 

violations of Common Article 3 under the War Crimes Act. 

Of course, Mr. Chairman, with respect to military commissions, 

the current military commission order sets forth a long list of war 

crimes that would be triable by a military commission and it would 

be our suggestion that any legislation enacted by Congress to auVerDate 0ct 09 2002 14:53 Aug 01, 2007 Jkt 036934 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36934.TXT SJUD1 PsN: CMORC
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thorize military commissions would similarly set forth a list of substantive war crimes that would be offenses triable by military commission. 

The issues raised by the court’s pronouncement on Common Article 3 are ones that the political branches need to consider carefully 

as they chart a way forward after Hamdan. I understand, Mr. Chairman, that the Committee is also interested in the question whether conspiracy to commit a violation of 

the laws of war may be charged as an offense under the laws of 

war tried before a military commission. We believe that it may. 

On this point, Mr. Chairman, I would simply say that we believe 

that the dissenting opinion in Hamdan was correct in its analysis, 

and that the plurality’s view on this particular question is not sustainable. 

I look forward to discussing these subjects with the Committee 

this morning. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Mr. Bradbury. 

Our next witness is the distinguished Former Chairman of the 

Joint Chiefs of Staff, General Richard B. Myers. He received a 

Bachelor’s degree from Kansas State University, a Master’s in business administration from Auburn. 

He has an extensive additional educational background while in 

the service. He held a very impressive list of commands. He has 

more than 4,100 flying hours, 600 combat hours on the F–4 jet, 

and, if I may say, is a native Kansan. 

Our native State takes great pride in what you have done, General Myers. We welcome you here today, and the floor is yours. 

STATEMENT OF GENERAL RICHARD B. MYERS, FORMER 

CHAIRMAN, JOINT CHIEFS OF STAFF, WASHINGTON, D.C. 

General MYERS. Thank you, Mr. Chairman, Senator Leahy. I 

have a very short statement. First, let me express my appreciation 

for the opportunity to be here. 

All I would like to suggest, is that the issues we are going to discuss today have, potentially, very significant impacts on how this 

Nation and its ability to prosecute the War on Terrorism will go. 

Also, on our troops who are on the front lines of this war. Also, 

on how the international community is going to view the fairness 

of whatever process we come up with to deal with unlawful enemy 

combatants. 

So I do not think there is a more important subject being discussed today than this particular subject, given the threat we face 

from violent extremists and terrorism. I thank you for the opportunity to be here, Mr. Chairman. 

Chairman SPECTER. Thank you very much, General Myers. 

We turn, now, to Major General Scott Black, the Judge Advocate 

General for the U.S. Army. General Black received his Bachelor’s 

degree from California Poly Tech State University. He attended 

California Western School of Law in San Diego, and received a 

Master in Science from the National Resource Strategy of the National Defense University. 

He has an impressive list of military assignments which will be 

included in the record, and quite a number of awards and honors, 

also which will be included in the record. 

7

We appreciate your coming in today, General Black, to give us 

the advantage of your thinking on how to approach these tough judicial issues. The floor is yours. 

STATEMENT OF MAJOR GENERAL SCOTT BLACK, THE JUDGE 

ADVOCATE GENERAL, U.S. ARMY, WASHINGTON, D.C. 

General BLACK. Thank you, Mr. Chairman, Senator Leahy, and 

members of the committee. I would like to thank you for the opportunity to appear before you today, and for the committee’s timely 

and thoughtful consideration of these significant issues. 

As you know, soldier-lawyers in the Judge Advocate Generals 

Corps have practical experience and expertise in the law of war. 

For the most part, our involvement in this area is focused on helping commanders ensure that U.S. military operations adhere to the 

rule of law and the law of war, a standard that is typically met 

and, frankly, a practice that frequently separates us from our enemies. 

We are also integrally involved in the prosecution of soldiers for 

crimes that occur in combat, although our general practice is to 

charge soldiers with violations of the Uniform Code of Military Justice and not with war crimes. 

The Supreme Court’s ruling in the Hamdan case has reinforced 

the importance of the rule of law and law of war, and has reinvigorated our scholarship concerning how we charge and prosecute individuals for war crimes. 

In Hamdan, the Supreme Court reminds us that properly established and enabled military commissions continue to be a viable 

and vital forum to try those enemy combatants who violate the 

laws of war. 

Congress may specify substantive offenses triable by military 

commissions in a number of different ways, including in an act related to military commissions, or by amending the War Crimes Act 

at 18 U.S.C. § 2441, or by both means. 

Army Judge Advocates are now involved in the process, led by 

the Department of Justice and with Judge Advocates of the other 

services, to propose to Congress the best way to enable military 

commissions to adjudicate the full range of offenses that are now 

at issue in the global war on terrorism. 

This would include conspiracy, which the Supreme Court found 

problematic in Hamdan. While this review and analytical process 

is ongoing, I believe that several points are apparent. 

First, we need the help of Congress to pass additional enabling 

legislation, both for the military commission forum and for the substantive offenses that may be tried by commissions. 

Second, the War Crimes Act should be amended. In so doing, 

however, our goal should be to elevate the Act from an aspiration 

to an instrument. By this I mean that the Act should not simply 

be a statement of legal policy in furtherance of the ideals of the law 

of war, but should be a statute defining serious and prosecutable 

criminal offenses. 

Finally, third, whatever is criminalized in the War Crimes Act 

must withstand the test of fairness, as well as the scrutiny of law. 

Since it is a criminal statute, it must be clear and it must prescribe, clearly, criminal conduct. There cannot be two standards. If 

8

we are to hold enemy combatants to the War Crimes Act, we must 

be prepared to hold U.S. personnel to the act. 

In conclusion, I believe that with the help of Congress we will 

have a forum and the necessary offenses that enable the Nation to 

have a pragmatic, lawful, and effective instrument for maintaining 

order and the rule of law on the battlefield. 

With that, sir, I thank you and look forward to your questions. 

Chairman SPECTER. Thank you very much, General Black. 

[The prepared statement of General Black appears as a submission for the record.] 

Chairman SPECTER. Our next witness is Rear Admiral Bruce 

MacDonald, Deputy Judge Advocate General for the Department of 

the Navy and Commander of the Naval Legal Services Command. 

He has a Master’s degree from Holy Cross, a law degree from the 

California Western School of Law, and a Master’s from Harvard. 

He has a very distinguished record in the military, and awards, 

all of which will be included in the record. 

We thank you for coming in today, Admiral MacDonald, and look 

forward to your testimony. 

STATEMENT OF REAR ADMIRAL BRUCE MACDONALD, JUDGE 

ADVOCATE GENERAL, U.S. NAVY, WASHINGTON, D.C. 

Admiral MACDONALD. Thank you very much, Mr. Chairman. I 

appreciate you inviting me to testify today, Senator Leahy, members of the committee. 

During a ceremony conducted at the historic Washington Navy 

Yard this past Friday, I relieved Rear Admiral Jim McPherson as 

the Judge Advocate General of the Navy, so I am here before you 

now as the senior Navy lawyer. 

Rear Admiral McPherson retired after more than 27 years of distinguished service to the Navy and to our Nation, and I am honored to follow in his wake. I have the particular good fortune to 

join the ranks of Generals Jack Rives, Scott Black, and Kevin 

Sandkuhler, who are military officers and Judge Advocates with 

the highest professionalism and integrity. 

Mr. Chairman, as our National security strategy makes clear, 

global security ultimately depends on the advance of freedom and 

democracy, both of which are grounded in the rule of law. We must 

always accomplish our military missions within the rule of law. 

Anything less risks forfeiting essential domestic and international 

support and undercuts the very values for which we stand and 

fight. 

Working together to carefully navigate these important issues, I 

am confident that we can develop a system that balances the needs 

of national security with the importance of affording all accused, 

whether terrorists or American service members, a fair and full judicial proceeding. 

Once again, Mr. Chairman, thank you for the opportunity to testify. I look forward to answering your questions. 

Chairman SPECTER. Thank you very much, Admiral MacDonald. 

[The prepared statement of Admiral MacDonald appears as a 

submission for the record.] 

Chairman SPECTER. We now turn to Major General Jack L. 

Rives, Judge Advocate General for the U.S. Air Force. 

9

He has a Bachelor’s degree from the University of Georgia, a 

University of Georgia Law School law degree, and extensive additional educational background in the service. He has a distinguished record in the military, with a number of awards, all of 

which will be made a part of the record. 

We appreciate your coming in, General Rives, and the floor is 

yours. 

STATEMENT OF MAJOR GENERAL JACK RIVES, THE JUDGE 

ADVOCATE GENERAL, U.S. AIR FORCE, WASHINGTON, D.C. 

General RIVES. Thank you, Chairman Specter, Senator Leahy, 

and members of the committee. I appreciate the opportunity to appear before you today as this Committee carefully considers the authority of the United States to prosecute suspected terrorists, consistent with the Supreme Court’s decision in Hamdan v. Rumsfeld. Prior to enactment of the War Crimes Act, suspected war criminals were prosecuted domestically by the United States for the underlying common law offense, such as murder, rape, or assault. 

Consistent with our treaty obligations, Congress enacted the War 

Crimes Act to prescribe misconduct internationally recognized as 

constitution violations of the laws of nations. Prosecutions under 

the War Crimes Act, like all prosecutions under Title 18, include 

the due process rights afforded in our Federal court system. 

While these rights are necessary and appropriate for suspected 

terrorists, investigated and apprehended through normal domestic 

law enforcement methods, some, such as the aggressive discovery 

rules and strict chain of custody requirements are incompatible 

with the realities and unpredictability of the battlefield. The full 

discovery rights of our Federal court system may reveal sensible, 

intelligent sources and methods that would harm our overall national security. 

Similarly, the chain of custody requirements of our Federal system are simply unworkable, given the uncertain and ever-changing 

nature of the battlefield and the need for our military personnel to 

be free from the technical rules more applicable to domestic law enforcement officers operating in American neighborhoods. 

In light of these difficulties, our laws offer alternative means to 

prosecute suspected terrorists seized on the battlefields of the global war on terrorism. These alternative methods were the subject of 

Hamdan v. Rumsfeld and they are the focus of ongoing discussions 

outside of Title 18. 

However, congressional action to amend the War Crimes Act can 

prove helpful on a related matter. The War Crimes Act currently 

characterizes all violations of Common Article 3 of the Geneva Conventions as felonies. Violations of Common Article 3 include, among 

other things, outrages upon personal dignity, in particular, 

humiliating and degrading treatment. 

Under our military justice system, less serious breaches can be 

handled through administrative or non- judicial means. However, 

again, the War Crimes Act treats all violations of Common Article 

3 as felonies. 

We welcome Congressional efforts to better define which outrageous upon personal dignity—in particular, humiliating and degrading treatment—amount to serious breaches worthy as classiVerDate 0ct 09 2002 14:53 Aug 01, 2007 Jkt 036934 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36934.TXT SJUD1 PsN: CMORC
10

fication as felonies. Such efforts would serve our men and women 

fighting the global war on terrorism by providing clearly delineated 

limits. 

As recognized and reaffirmed in last year’s Detainee Treatment 

Act, we cannot, and will not, condone U.S. military personnel engaging in outrageous, humiliating, and degrading conduct as U.S. 

law defines such misconduct. Congressional efforts to better define 

these terms for Common Article 3 purposes will provide needed 

clarity to the rules of conduct for our military forces. 

I look forward to discussing these issues with the Committee this 

morning. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, General Rives. 

[The prepared statement of General Rives appears as a submission for the record.] 

Chairman SPECTER. Our final witness on the panel is Brigadier 

General Kevin Sandkuhler, Staff Judge Advocate to the Commandant for the Marine Corps, which is the equivalent of a Judge 

Advocate General. 

His education includes a Bachelor’s degree from Holy Cross, he 

is a cum laude graduate from the California Western School of 

Law, Master of Law and Government Contracts from George Washington University. 

He has a very distinguished record in the military, with many 

awards, all of which will be made a part of the record. 

We welcome you here, General. We look forward to your testimony. 

STATEMENT OF BRIGADIER GENERAL KEVIN M. 

SANDKUHLER, DIRECTOR, JUDGE ADVOCATE DIVISION, U.S. 

MARINE CORPS, WASHINGTON, D.C. 

General SANDKUHLER. Thank you, Mr. Chairman, Senator Leahy, 

and members of the Judiciary Committee. Good morning. I wish to 

thank you for the opportunity to appear before you today and for 

this committee’s interest in this critical issue. 

As does this committee, we remain keenly interested in continuing to fulfill our international obligations under the Geneva 

Conventions, as well as ensuring that we are able to effectively and 

efficiently bring terrorists to justice. 

The plurality of the Supreme Court concluded in the Hamdan decision that conspiracy was not triable by a law of war or a military 

commission, in part because it was not positively identified by statute as a war crime. How best to bring terrorists to justice following 

the Hamdan decision is a matter worthy of careful consideration. 

The War Crimes Act of 1996 was enacted to carry out the international obligations of the United States under the Geneva Conventions to provide criminal penalties for certain war crimes. 

Until its enactment, the United States had never taken affirmative steps to legislate the penal provision of the Geneva Conventions. The War Crimes Act of 1996 accomplished these ends. 

The Act was not intended to affect in any way the jurisdiction 

of any court-martial, military commission, or other military tribunal under any article of the Uniform Code of Military Justice, 

the law of war, or the law of nations. 

11

Substantively, the Act criminalizes four categories of conduct, 

committed here or abroad, as war crimes: grave breaches of any of 

the international conventions signed at Geneva, or any protocol to 

such convention to which the United States is a party; violations 

of Articles 23, 25, 27, or 28 of the Annex to the Hague Convention 

IV, Respecting the Law and Customs of War on Land; violations of 

Common Article 3 to the Geneva Conventions; and violations of the 

Protocol on Prohibitions or Restrictions on the Use of Mines, 

Booby-Traps and Other Devices. 

The ability of the United States to prosecute terrorists under the 

War Crimes Act will be driven by whether the crime is covered 

substantively under the Act, but more importantly by whether the 

prosecution is practicable under our Federal criminal system. 

Procedurally, prosecuting terrorists under Title 18 in Article III 

Federal courts would present many of the same difficulties we have 

been addressing in our military commissions process, including a 

relation between the national security and, for example, discovery 

rights of the accused, access to classified information, and self- incrimination. 

Striking the balance between individual due process and our National security interests, while maintaining our service members’ 

flexibility in dealing with terrorists and unlawful enemy combatants they encounter on the battlefield is the end we all seek. 

With that as a backdrop, I look forward to discussing the issues 

with the committee. Thank you. 

Chairman SPECTER. Thank you. Thank you very much, General. 

[The prepared statement of General Sandkuhler appears as a 

submission for the record.] 

Chairman SPECTER. I will turn to the Senators for 5 minute 

rounds of questions. 

Mr. Bradbury, does Congress have the authority to delegate to 

the Secretary of Defense the responsibility and authority to add offenses, crimes, to the statute or is that one of the many non-delegable functions of Congress that would require that Congress make 

the determination of specific war crimes? 

Mr. BRADBURY. Thank you, Mr. Chairman. That is a very interesting question. I would not say that the Secretary of Defense 

would be creating new crimes from whole cloth, but rather that the 

Secretary of Defense would be recognizing offenses that exist under 

the laws of war and providing for their prosecution in the military 

commission process. 

Chairman SPECTER. Well, do you think he would have the authority, as the press reports on a circulated draft, to add offenses 

to the list in the statute? 

Mr. BRADBURY. Yes, provided that they are offenses recognized 

under the laws of war. 

Chairman SPECTER. Is there any reason why we ought to follow 

that course, which is risky at best? Would it not be preferable if 

the administration wants to make additions, that you come to Congress now, tell us what you have in mind, let us consider it, let us 

add them if we think it is correct, as opposed to moving again on 

risky ground and having the issue go to the Supreme Court again? 

Mr. BRADBURY. That is certainly an avenue open to Congress, 

and one that you might judge is appropriate. Of course, under the 

12

current military commission procedures that have been struck 

down by the Supreme Court, the administration, through administrative action and under the authority of the Secretary of Defense, 

had enumerated a list of offenses that would be triable. 

Chairman SPECTER. All right. I do not want to cut you short, but 

I have got a lot of questions for others. I think the key part of your 

answer so far, is ‘‘struck down.’’ So let us try to work it out so we 

do not take the risk of having it stricken again. 

General Black, let me turn to you on the overall question. Do you 

think it advisable to start from the Uniform Code of Military Justice in structuring the law to comply with Hamdan v. Rumsfeld, or 

do you think we ought to start totally new with a military commission line such as the draft which has been circulated? 

General BLACK. I believe that the Uniform Code of Military Justice provides a wonderful framework from which to begin. 

Chairman SPECTER. So that is where we ought to start? 

General BLACK. Yes, sir. 

Chairman SPECTER. Admiral MacDonald, do you agree with that? 

Admiral MACDONALD. Yes, sir, I do. We have been using the 

UCMJ for over 50 years and it affords many, many procedural 

rights. 

Chairman SPECTER. General Rives, do you concur? 

General RIVES. Yes, Mr. Chairman, I do. 

Chairman SPECTER. General Sandkuhler? 

General SANDKUHLER. Senator, I concur with the idea that we 

start with a balanced approach. 

Chairman SPECTER. Not necessarily the Uniform Code of Military Justice? 

General SANDKUHLER. I think we have to look at the work that 

we have done over the years with regard to the commission procedures. There has been good work done there. Hamdan has struck 

down those procedures, but there is thought that has been put into 

those efforts. We are looking for a balance. 

Chairman SPECTER. Let me turn, now, to another question. That 

is the issue of confrontation and classified information. In legislation which I introduced, Senate bill 3614, I provided for a board to 

be empaneled to go through information which was considered classified before the trial commenced so that there could be a fresh determination as to what really was classified and really had to be 

kept from the accused. 

If you have a procedure where the lawyer is going to know the 

information but the accused does not, General Rives, does that 

comport with basic fairness on an opportunity to confront the evidence and to confront, in essence, your accuser? 

General RIVES. You raised a number of issues, Mr. Chairman. To 

address the last question, it does not comport with my ideas of due 

process for a defense counsel to have information he cannot share 

with his client. 

Chairman SPECTER. Let me ask one final question that I would 

ask you if we do not get to a second round. That is, excluding torture, would you permit coerced confessions, evidence to be used 

from them, or would you have some refinement between torture 

and coerced confessions? 

13

My red light just went on, so I am going to yield now to Senator 

Leahy. 

Senator LEAHY. Do you want to go ahead? 

Chairman SPECTER. Senator Leahy has a good idea. 

The question was on my time now, but the answer is on your 

time. 

Senator LEAHY. No, no, no. [Laughter.] I have my own questions. 

Chairman SPECTER. Oh, no. It is not on your time, it is on their 

time. ‘‘Your’’ does not refer to you, 

Senator LEAHY. How about it, General Black? 

General BLACK. Sir, I do not believe that a statement that is obtained under torture, certainly, and under coercive measures 

should be admissible. 

Chairman SPECTER. Admiral MacDonald? 

Admiral MACDONALD. I agree with General Black. 

Chairman SPECTER. General Rives? 

General RIVES. I concur, too. 

Chairman SPECTER. General Sandkuhler? 

General SANDKUHLER. Yes, sir. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Leahy is now recognized. 

Senator LEAHY. Thank you. I concur with all four of you on that 

answer, something also that both the Chairman and I learned as 

civilians when we were both prosecutors, and we were both in Air 

Force ROTC. 

Mr. Bradbury, I always find, as you know, your appearances here 

interesting. This morning I listened to your statement and it 

seemed more of a press release than anything else. 

The hearing is on the authority to prosecute terrorists under the 

war crime provisions of Title 18, but in the written statement you 

submitted late last night, there was not a single sentence addressing that subject. 

Did the Chairman’s office tell you what the title and the subject 

were going to be before the hearing? That is an easy one for ‘‘yes’’ 

or ‘‘no.’’ Did they tell you what the title was going to be of the hearing? 

Mr. BRADBURY. The title? 

Senator LEAHY. Or the subject. Either one. 

Mr. BRADBURY. They did tell me that there was going to be focus 

on war crimes prosecutions of terrorists. 

Senator LEAHY. They did not tell you what the title of the hearing was? 

Mr. BRADBURY. No. 

Senator LEAHY. All right. 

Mr. BRADBURY. In fact, I do not know what the title of the hearing is as of right now. 

Senator LEAHY. The title is, ‘‘The Authority to Prosecute Terrorists Under the War Crimes Provisions of Title 18.’’ That is why I 

mentioned it, because your statement does not refer to that at all. 

General Black and General Sandkuhler—am I pronouncing your 

name right? 

General SANDKUHLER. Yes. 

Senator LEAHY. I would have to answer to a former lance corporal if I get it wrong. 

14

The intended focus of this hearing is the possible expansion of 

the War Crimes Act, to include the crime of conspiracy. General 

Black, you said Congress may specify substantive offenses triable 

by military commissions by amending the War Crimes Act. 

General Sandkuhler, you stated that the War Crimes Act was 

not intended to affect in any way the jurisdiction of any court-martial, military commission, or other military tribunal under any article of the Uniform Code of Military Justice, the law of war, or the 

law of nations. 

So let me ask both of you this question. Do military commissions 

have jurisdiction to try crimes under the War Crimes Act? General 

Rives? 

General RIVES. They would. 

Senator LEAHY. General Sandkuhler? 

General SANDKUHLER. Yes, sir. 

Senator LEAHY. All right. Then the confusion is in my mind then. 

Now, Mr. Bradbury, your administration has not initiated a single prosecution under the War Crimes Act, but here today you are 

asking us to narrow the scope. Why have there not been any prosecutions under it? Is it not expansive enough for prosecutions? 

Mr. BRADBURY. Well, I guess I have two things to say, Senator. 

There has not been, not ever, a single prosecution under the War 

Crimes Act since it was enacted in 1996. 

Senator LEAHY. No, no. I am saying there have been no prosecutions under the War Crimes Act, and on the subject we are talking 

about, the 9/11-related. 

Mr. BRADBURY. Right. 

Senator LEAHY. There have been no prosecutions under the Act. 

Is that right? 

Mr. BRADBURY. That is correct. 

Senator LEAHY. Why? 

Mr. BRADBURY. Because the policy that the administration has 

followed, consistent with past armed conflicts of the United States, 

would be to try those unlawful enemy combatants who have committed war crimes through a military commission process. 

Senator LEAHY. But yet, when we try to put together a military 

commission and legislation on that, that same administration did 

not want us to do it. It is kind of a catch–22. 

Now, in your testimony, I am thinking about the allegations 

against Steven Green. President Bush said, on the Larry King 

Show, that what Mr. Green is alleged to have done is a despicable 

crime, and has stained the honorable image of the U.S. military. 

I tend to agree. But he is being prosecuted in Federal court for 

murder and rape. 

Now, in your testimony, the Bush Justice Department, even 

though it tried to redefine torture, does include murder as a war 

crime. Is that right? 

Mr. BRADBURY. Murder is. If committed in circumstances of an 

armed conflict against a protected person under the laws of war 

internationally, it can be a war crime, yes. 

Senator LEAHY. What about rape? 

Mr. BRADBURY. It can be a war crime, I believe. 

Senator LEAHY. All right. 

15

General Rives, before the Armed Services Committee you stated, 

in response, I believe, to a question from Senator Graham, who is 

here, some of the techniques that have been authorized and used 

in the past have violated Common Article 3. I noted that General 

Black, Admiral MacDonald, and General Sandkuhler agreed with 

you on that point. 

What specific techniques have been authorized during the past 

5 years that have violated Common Article 3, and where have 

those techniques been used? 

General RIVES. Senator, my response to the question related specifically to Paragraph 1(c) of Common Article 3 which provides that 

it is a violation of Common Article 3 if an individual commits an 

outrage upon personal dignity, in particular, humiliating and degrading treatment. 

In the July 13 Armed Services Committee testimony, there was 

a lot of discussion about some of the broad, expansive definitions 

that have been given to that particular provision. I was, frankly, 

referring to some of the events that have been fairly well publicized 

that amount to humiliating and degrading treatment. 

Senator LEAHY. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Leahy. 

Senator Graham? 

Senator GRAHAM. Thank you, Mr. Chairman. 

You have a suspected terrorist caught on the battlefield. To the 

Judge Advocates: would it be better to prosecute that person under 

Title 18 Federal court or a commission, properly constructed? What 

would be your preference? 

General Black? 

General BLACK. A military commission, sir. 

Senator GRAHAM. Admiral? 

Admiral MACDONALD. A commissions, sir. 

Senator GRAHAM. General? 

General RIVES. Without doubt, a military commission. 

Senator GRAHAM. General? 

General SANDKUHLER. Commission, sir. 

Senator GRAHAM. All right. 

Mr. Bradbury, do you agree with that? 

Mr. BRADBURY. Yes, I do, Senator. 

Senator GRAHAM. We find common ground there. 

To the Judge Advocates. Have you been consulted fairly extensively about military commissions in Common Article 3 by the administration? 

General BLACK. Yes, sir, we have. 

Admiral MACDONALD. Particularly of late, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes. 

Senator GRAHAM. An unqualified ‘‘yes’’ by everyone. All right. 

Would it be fair to say that there are still areas of disagreement? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. Is it fair to say there are a lot of areas of commonality? 

16

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes, sir. It is an evolving process. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. All right. 

Now, when it comes to prosecutions under Title 18, the biggest 

concern I have is that our own troops could be prosecuted for felonies that are not clearly defined. If you are responsible for controlling a detainee, it could become a Federal offense in certain circumstances for you to engage in certain conduct. Do you all agree 

that we should, as Congress, define what that conduct is so our 

troops can conform their behavior? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. An affirmative answer by all the JAGs. 

Now, when it comes time to look at Title 18 anew, would it be 

a better practice to list specifically the crimes we are talking about 

rather than just general statements under 1(c)? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes. 

General RIVES. Yes. 

General SANDKUHLER. Yes. 

Senator GRAHAM. That would allow our troops to know what is 

in bounds and what is not. Is that a fair statement? 

General BLACK. Yes, Senator. 

Admiral MACDONALD. Yes, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. When it comes to interrogating terrorists by 

other countries, do you know of any country that interrogates terrorists using Common Article 3 standards in their interrogation 

process? 

Admiral MACDONALD. No, sir. 

Senator GRAHAM. General Black? 

General BLACK. No, sir. 

Senator GRAHAM. General Rives? 

General RIVES. I have no knowledge, sir. 

Senator GRAHAM. All right. 

So our dilemma here is how to find a balance between the international treaty obligations and the ability to defend one’s self when 

it comes to interrogations. Is that correct? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes. 

Senator GRAHAM. An affirmative response from everyone. All 

right. 

General Myers, in 30 seconds, tell us, what has been the down 

side of not having anyone prosecuted, having one story after another about failed policies when it comes to detention and interrogation in terms of our image throughout the world. 

17

General MYERS. Well, I think the issue of fairness comes up. It 

has been the intention—when I was in office, of course—to move 

some people through the process as quickly as possible for their 

good and for the good of the perception of the process that we had 

for bringing some of these folks to justice. 

The inability to do that, then, creates a lot of uncertainty in their 

minds, and also, I think, in the international community; are we 

really serious about this, do we have a process that is fair? I think 

right now we are stagnated and we need to move forward as we 

are discussing. 

Senator GRAHAM. Mr. Bradbury, do you believe it would be wise 

and prudent for the Congress to reauthorize the military commissions as originally written without change? 

Mr. BRADBURY. Actually, no, I do not, Senator. 

Senator GRAHAM. To the Judge Advocates: do you agree with 

that statement? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes. 

General RIVES. I do, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. All right. 

To the Judge Advocates: is it your concern that it would be bad 

for this country to have a procedure where the trier of fact, the 

military jury, could look at evidence to base their verdict upon that 

is never shared with the defendant? 

General BLACK. Yes, sir. 

Admiral MACDONALD. Yes, sir. That is a fair statement. 

General RIVES. I agree. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. Do you have any solution to that dynamic, 

other than just, not prosecute? 

Admiral MACDONALD. Sir, I would recommend that Congress 

look to Military Rule of Evidence 505 and to the SEPA procedures 

as a great place to start. Those are tried-and-true procedures that 

we have used in the military and would be a good place to begin. 

General RIVES. I agree. We do not have to reveal confidential 

sources or methods, but we ought to be able to get the information 

in a format that is consistent with showing to the members of the 

court, the triers of fact, along with the accused. 

Chairman SPECTER. Thank you, Senator Graham. 

Senator Kennedy? 

Senator KENNEDY. Thank you. 

I want to thank all of the panel. It has been very, very helpful 

and very constructive. I have had a chance to hear a number of you 

with the Armed Services Committee and I think we are all, as a 

country, enormously indebted to our JAGs. General Myers, we 

thank you for your service. Mr. Bradbury, thank you for coming 

back to speak to us. 

I want to refer to a recent article that caught my eye, and I know 

it will use up my time, but it is interesting. This article was in the 

Cape Cod Times. A fellow named Dan Adams wrote, ‘‘As the Bush 

administration mulls over the recent Supreme Court ruling regarding the rights of any combatants held at Guantanamo, in particular 

how to assess detainees, they might profit from studying the acVerDate 0ct 09 2002 14:53 Aug 01, 2007 Jkt 036934 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36934.TXT SJUD1 PsN: CMORC
18

tions of General Washington during the Revolutionary War, and 

specifically, his treatment of Governor Henry Hamilton. 

Hamilton was a British Lieutenant Governor of Canada, enlisted 

in the war effort against the rebellious colonies. He set up headquarters in Detroit and employed tactics abhorrent to Americans, 

particularly then- Governor of Virginia, Thomas Jefferson. 

Hamilton offered a bounty to the Indians for the scalps of rebels, 

but no bounty for prisoners. He encouraged soldiers under his command to employ the utmost brutality and cruelty. The result was 

the massacre and torture of innocent men, women and children and 

earned Hamilton the nickname ‘Hair Buyer General.’ 

In 1779, American General George Clark recaptured Detroit, and 

took Hamilton prisoner. Military officers at the time were all considered gentlemen, and thus bound by honor to respect the rules 

of war. 

Their treatment as prisoners was lenient. They were trusted to 

stay where they were told and not escape. Generally, this honor 

system worked well. Governor Jefferson routinely entertained captured British officers at Monticello, often lavishly. 

But Hamilton was different. The atrocities perpetrated by him 

and the great cruelties proved against him personally caused such 

resentment, that when Hamilton fell into Jefferson’s hands, the latter, deeply angered, placed him in the common jail and clapped 

him in irons. 

General Washington, whose resentment of Hamilton was as 

great, heard about this treatment, was furious, and insisted, despite Hamilton’s atrocities, such outrageous should not be met with 

equal outrages. 

The newly-declared United States, still teetering and experimenting with government, should be an example to the world and 

should therefore conducts its affairs in a higher plane. He immediately reprimanded Jefferson and insisted on Hamilton’s release 

from jail and further interment to be commensurate with other 

British officers. 

By this and other actions, Washington was setting a standard, a 

code by which this country should act. He believed we should, in 

all our actions, be a model for the rest of the world.’’ This is rather 

powerful. 

This morning’s newspapers had the article in the Washington 

Post about the proposal that is being considered by the administration. Mr. Bradbury, are you familiar with either the article or the 

subject matter? 

Mr. BRADBURY. I am. 

Senator KENNEDY. Yes. The proposal has not been submitted yet? 

Mr. BRADBURY. That is correct. 

Senator KENNEDY. Should we anticipate that it will be submitted 

soon? 

Mr. BRADBURY. We are working diligently with all these good 

folks, and others, on a proposed piece of legislation. 

Senator KENNEDY. So, we are still very much open to discussion? 

Mr. BRADBURY. Yes. Yes. 

Senator KENNEDY. As you are familiar, the article had these 

kinds of comments: ‘‘The military lawyers received a draft after the 

rest of the government agreed on it; it argued in recent days for 

19

retaining some of the routine protections for defendants, that the 

political appointees sought to jettison, administration officials 

said.’’ 

Mr. BRADBURY. I disagree with that statement. The legislation 

has not been agreed upon. It has been going through an interagency discussion process. The JAGs have been brought in as full 

participants in that process. But we have not finalized the legislation, and had not finalized the legislation previously. 

Senator KENNEDY. So it says, ‘‘They objected, in particular, to the 

provision allowing the defendants to be tried in absentia.’’ Is that 

still in the draft? 

Mr. BRADBURY. I do not think anybody would propose that defendants be tried in absentia. I think the issue is the very difficult 

one that has been raised in some of the questions. 

I think everybody would agree it is an imperative during an ongoing conflict not to share sensitive intelligent sources and methods 

and other information with terrorist detainees. 

So the question is how to give these folks fair trials while protecting that information. That is not an easy question. We are 

working through it. That is still an issue that is very much open 

and under discussion. 

Senator KENNEDY. But the trial in absentia itself, the individual 

not being present, that is not included in the proposal? 

Mr. BRADBURY. Well, the question, Senator, would be whether 

certain evidence could be taken into account by the commission 

with the accused not being exposed to that evidence. That is the 

question. Whether you could do that in narrow circumstances 

under protected procedures, would be what we would be addressing. 

Senator KENNEDY. My time is just about up. 

In that Washington Post article it also said that nothing in the 

draft prohibits using evidence obtained from cruel, inhumane, and 

degrading treatment that falls short of torture. I think we have the 

comments from the JAGs here. I think you commented earlier. Was 

that accurate or inaccurate? 

Mr. BRADBURY. Well, I think that certainly we would include in 

any legislation an absolute prohibition on the use of statements obtained through torture. When it comes to—and I think I have testified to this before this Committee two or 3 weeks ago—a question 

of statements that have been alleged to have been obtained 

through coercion, it is a more difficult question. Allegations can be 

made about coercion and courts have always had a very difficult 

time in defining what that is. 

So I think one of the possible approaches would be to have a certified military judge acting as a gatekeeper to hear any such allegations, to review the circumstances of any statement that has been 

made that might be introduced as evidence, and to determine 

whether that statement is unreliable, lacking in probative evidence, et cetera, whether it would be unduly prejudicial, but the 

sort of gatekeeper role that a traditional judge would play. We 

think that is a way to address that. It is the way that Article 3 

courts have traditionally addressed that question. 

20

Senator KENNEDY. Could I ask the Chair, when do we expect to 

get the draft? Does the Chair have any information of the timing 

of this craft? 

Chairman SPECTER. My information? I do not have anything at 

hand. We have been in touch, Senator Kennedy, on a daily basis. 

We hoped to have had the draft in advance of this hearing so that 

we could ask more specific questions. We may have to have another 

hearing. But we urge Mr. Bradbury to let us have the draft as soon 

as you can. 

Mr. BRADBURY. We are working as hard as we can, Mr. Chairman. 

Chairman SPECTER. Well, I know you are a hard worker, so we 

will accept that answer. 

Thank you, Senator Kennedy. 

Senator Feinstein? 

Senator FEINSTEIN. Good morning, gentlemen. If I understand 

Hamdan correctly, questions were raised about whether a war 

crimes conspiracy charge is ever permissible under U.S. and international law. 

I gather Justice Stevens cited the Neurenburg tribunal, which 

pointedly refused to recognize conspiracy as a violation of the laws 

of war. Of course, it is a double-sided coin. 

Aiding and abetting, conspiracy-related crimes, if they were 

added, could be used against our people as well. I am really asking 

each one of you for a quick conclusion. Do you believe that conspiracy crimes should be defined and added to whatever comes out 

as the vehicle from this committee? Mr. Bradbury? 

Mr. BRADBURY. Yes. 

Senator FEINSTEIN. General Myers? 

General MYERS. I will defer to the others. 

General BLACK. Yes, ma’am, I do. 

Admiral MACDONALD. Yes, ma’am. 

General RIVES. The caveat I would say, is under 18 U.S. Code 

§ 2349(a), we have provided material support to terrorists as an offense. I prefer that to conspiracy, which carries a lot of baggage. 

Senator FEINSTEIN. Thank you. 

General SANDKUHLER. Senator, I think you can include conspiracy. I think you can work and define it and include it in war 

crimes. 

Senator FEINSTEIN. And you do not believe it is a double-edged 

sword as far as prosecutions being brought against our people? I 

assume that is correct. Is that correct? 

General SANDKUHLER. Yes, ma’am. 

Senator FEINSTEIN. All right. 

Admiral MacDonald and General Black, you both speak about 

Common Article 3 in your written comments, the prohibition. Admiral MacDonald, you say Common Article 3’s prohibition upon 

outrages on personal dignity is not well defined. How would you 

suggest we define it? 

Admiral MACDONALD. Ma’am, that is the $24,000 question as to 

how we go about doing that. In its current formulation, it is entirely too vague and it puts, as you mentioned before, our own service members at risk. 

21

Senator FEINSTEIN. Does anyone have a suggestion—I know Mr. 

Bradbury would, but of the JAGs—of how to define it? 

Admiral MACDONALD. Ma’am, we have been working through the 

working group that the Department of Justice put together to work 

through the commission’s process on a definition. 

Senator FEINSTEIN. When will that be available? 

Admiral MACDONALD. As soon as the administration forwards 

the package. If they choose to include it, we have offered a definition of what outrageous upon personal dignity would mean. Under 

the Geneva Conventions, the only prosecutable offenses are serious 

violations. 

So one formulation is to include serious outrages upon personal 

dignity. And then we have talked about a reasonable persons 

standard, applying such a standard. So we have got various formulations that we have been working through, but we do not have 

agreement yet. 

Senator FEINSTEIN. Thank you. That is very helpful. 

I want to ask this general question. It strikes me that in the war 

on terror, we are dealing with very different people. They are not 

conscripts, they are fanatics. They view life very differently. They 

are prepared to sacrifice their life. 

I was struck when I saw over the weekend a 5-year-old little boy 

dressed upon in a Hezbollah uniform with what appeared to be 

bombs strapped around his waist. I thought, the traditional laws 

really are not going to work. 

Torture really is not going to work. This kind of coercion really 

is not going to work if people really have no value on their life and 

are so fanatic, that the cause is worth any amount of suffering they 

go through. 

Have you gentlemen thought about that, and if so, what are your 

conclusions? 

General BLACK. Yes, ma’am, we certainly have. That is why it is 

so important to develop a process through our commissions to be 

able to handle these kinds of individuals and offenses, and we need 

a system that is enduring that applies not just to Al Qaeda, but 

to every other type of terrorist individual that falls into that sort 

of category. 

We are very much aware, particularly in the Services, where our 

troopers are exposed on a day-to-day basis to those individuals. We 

very much support whatever you can do to help us to get to commissions as fast as we can, and in as correct a manner as possible. 

Senator FEINSTEIN. Anybody else want to comment on that? 

General MYERS. I will comment. Some of the experience that we 

had when I was on active duty with some of these individuals, was 

that once detained, without coercion, that they changed their 

tunes, sometimes fairly quickly, and they were not quite as willing 

to sacrifice themselves for the cause. They would change and they 

would offer up good intelligence and other information that was 

useful to the war on terrorism. 

So, I think what we see sometimes in public displays, and what 

you find out once they have been captured on the battlefield, are 

maybe two different things. So, I just would offer that. Not all of 

them. Some of them are, of course, to the end, very hard core. But 

not all of them are. 

22

Admiral MACDONALD. Senator, I would just offer that, having 

visited Guantanamo and talked to our interrogators at Guantanamo, that they strongly believe that coercion and torture does not 

work, and that it does not get you the actionable intelligence that 

we need. 

They are engaged in a much longer process of building trust with 

the detainees through fair treatment in the hopes that, as General 

Myers just said, of getting them to come forward with information 

of their own accord, and they have been successful. 

General RIVES. Senator, I would just add that one of the revelations most Americans had after 9/11, is that we are not dealing 

with criminals, we are dealing with a different sort of very hostile, 

non-state actors in most cases. 

We need to act with them appropriately on the battlefield when 

that is necessary, and when we capture them and they become detainees we need to treat them humanely, but we do need to keep 

them from being able to further engage in their desires. 

Senator FEINSTEIN. Thank you. Thank you, gentlemen. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator Feingold? 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Mr. Bradbury has argued that Common Article 3 is difficult to 

interpret. When the Judge Advocates General on the panel here 

today testified before the Armed Services Committee, you confirmed that the military has been—and I am actually quoting General Black—‘‘training to that standard and living to that standard 

since the beginning.’’ I think each of you agreed, as did Admiral 

McPherson, who is not here today. 

Do you still agree with that? Admiral MacDonald, do you agree 

as well? 

General BLACK. Yes, sir, I do. 

Admiral MACDONALD. Yes, sir, I do. 

General RIVES. Yes. 

General SANDKUHLER. Yes, sir. 

Senator FEINGOLD. Well, I think that says a lot. I do appreciate 

those very direct answers. 

General Black, I was struck by something in your testimony. You 

wrote, ‘‘There cannot be two standards. If we are to hold enemy 

combatants to the War Crimes Act, we must be prepared to hold 

U.S. personnel to the Act.’’ 

Can you say a little bit more about what you meant by that? 

General BLACK. The article that Senator Kennedy referred to 

probably says it best. The United States should be an example to 

the world, sir. As we put our soldiers in harm’s way, we must always consider how they will be treated if they are captured. 

Reciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules 

for the commissions, and that is the exact reason, sir, the treatment of soldiers who will be captured on future battlefields. That 

is of paramount concern. 

Senator FEINGOLD. I would ask the other Judge Advocates to respond. 

Admiral MACDONALD. Yes, sir. I agree with General Black on the 

reciprocity agreement. As Congress goes through the commission 

23

rules that are forwarded by the administration, I think all of us 

would ask that you keep the reciprocity issue in mind as you go 

down, line by line, looking at each of the rules. 

General RIVES. I agree, also, Senator. As we, especially over the 

recent days, have worked very closely with the administration on 

drafting proposed legislation, one of the points that our staff officers have continued to emphasize, as have we directly, is the need 

to consider reciprocity with everything we are doing. 

Senator FEINGOLD. Sir? 

General SANDKUHLER. I agree as well, Senator. 

Senator FEINGOLD. Thank you. This is for, again, the Judge Advocates. Hypothetically speaking, do you think a military commission would be an appropriate forum to try a U.S. citizen not actively engaged in military operations against the United States? 

General Black? 

General BLACK. No, sir. Not as we are currently conceiving the 

commissions. It would be unlawful enemy combatants, and that 

definition should exclude U.S. citizens. We have other forums and 

other capabilities for handling U.S. citizens. 

Admiral MACDONALD. Yes, sir. For armed forces we have the 

UCMJ, for our own civilians we have our Federal rules, so I would 

not use commissions. 

General RIVES. I agree, Senator. 

General SANDKUHLER. I agree, Senator. 

Senator FEINGOLD. Thanks to all of you. 

Again, for each of you, do you agree that for any deviations of 

a military commission procedure from the standard UCMJ courtmartial procedure, there should be an explicit rational for why that 

particular provision of the UCMJ is not workable? General? 

General BLACK. Yes, sir. I think we can do that. 

Admiral MACDONALD. Yes, sir. I agree. 

General RIVES. We can do it, and there should be an understandable rationale. Whether the legislation itself—I am not sure what 

you are suggesting—should explicitly say that or not is another 

matter, though. 

General SANDKUHLER. We have been studying how we can best 

use UCMJ as a basis and then modify that as required by the practicality of the situation. So I think we all are in general agreement 

on that. 

Senator FEINGOLD. Well, I thank all of you for your direct answers. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Feingold. 

General Myers, when the so-called famous Bybee memo was 

written in the Department of Justice, which was later discredited 

and rejected, outlining some very extreme forms of interrogation, 

there was a task force commission of the Department of Defense. 

We have heard extensive testimony from General Counsel Haynes 

about that subject. 

The question in my mind is, what did some of the experienced 

people on the military side, like yourself, as Chairman of the Joint 

Chiefs of Staff, have to say about that? Were you informed? Did 

you participate at all? 

24

Because sometimes when you have lawyers giving a theoretical 

answer as to how far you can go, you might not be coming to grips 

with the reality that more experienced people have who have been 

in the military and have been much more closely associated with 

the realities. By way of that background, were you consulted at all 

on the interrogation techniques/tactics? 

General MYERS. Absolutely. As you probably know, the Office of 

the Chairman has its own legal counsel. Of all the conflicts that 

we have been involved in, this one probably has more legal context 

than any conflict we have been in for a very long time. But we absolutely were. 

Where I came from on these subjects, and I think where military 

commanders come from, where Staff Judge Advocates come from, 

is exactly the same place. That is, the first thing we think about 

is reciprocity. Well, the first thing you think about, is what is fair? 

What is consistent with international law and our treaty obligations? 

The second thing, is reciprocity. How is this going to apply to our 

troops on the battlefield if they were captured? Even in a conflict 

like this where you do not expect particularly good treatment, we 

have to set the standard. That is, I think, our obligation as a country, as a matter of fact. 

So we were consulted and we offered our advice. I think the way 

those interrogation methods finally came out—and you will have to 

excuse me here, but I think that the date was probably 2002 in 

April, or in that time frame. 

Chairman SPECTER. Did you concur with the final list that was 

sent to the Secretary of Defense? 

General MYERS. Yes. Again, I am a little fuzzy on dates. I think 

the final list came out in April or May of 2002, I believe. In fact, 

I think there were 24 methods consistent with the manual, and excluded some methods that were deemed to be consistent with international law, but it did not seem appropriate from my standpoint. 

I think that was the standpoint of most. 

Chairman SPECTER. You say there were some on that list? 

General MYERS. There were some that were excluded. Sure. 

There were some on there that—— 

Chairman SPECTER. That you disagreed with? 

General MYERS. Well, no. Not of the final list that was approved. 

But there was a broader list that we pared down to the final list, 

and took some off. While they may be in compliance with international law as defined by the Justice Department and others, we 

did not think they were appropriate, so we pared that down. 

By the way, I will have to say that the OSD General Counsel 

also agreed with that. In fact, he was one of the ones that led paring that list down. We were not fighting much of a head wind 

there. It was also the Secretary’s view as well. 

Chairman SPECTER. General Black, did you agree with that final 

list? 

General BLACK. Sir, I was not in the position as Judge Advocate 

General at the time, and I was not even stationed in the DC area. 

So, I cannot speak to that. 

Chairman SPECTER. So you did not have a role to play. 

General BLACK. No, sir. 

25

Chairman SPECTER. You were not in the loop. 

General BLACK. No, sir. 

Chairman SPECTER. How about you, Admiral MacDonald? 

Admiral MACDONALD. The same thing, sir. I was not in the loop. 

Chairman SPECTER. General Rives? 

General RIVES. Senator, when I finally saw the list I believed 

there was legal support for every decision the Secretary of Defense 

made in his April, 2003 memorandum. 

Chairman SPECTER. Aside from legal support, did you agree with 

the list? 

General RIVES. There were policy calls that the Secretary made 

that are supportable, and he is the one who makes the policy calls. 

We are advisors, he makes the policy calls. I did not have a real 

problem with most of the things on the list. But again, he is the 

one who makes those policy calls. What he decided is legally supportable. 

Chairman SPECTER. General Sandkuhler, did you agree with that 

list? 

General SANDKUHLER. I was there with General Rives. 

We did a review of those items listed there. They were supportable. Again, I think decisions needed to be made by those who were 

in those positions. 

Chairman SPECTER. Senator Leahy? 

Senator LEAHY. Thank you, Mr. Chairman. 

Just to follow up on a question with the JAGs, a question that 

Senator Feingold had asked. Would you agree that it would be reasonable to limit military jurisdiction to those that fight against 

U.S. armed forces in places like Iraq and Afghanistan, where, one, 

the Congress has authorized the use of military force, and, in fact, 

there is conflict? 

General BLACK. I am not sure I would take the additional extension, sir. 

Senator LEAHY. All right. 

General BLACK. I have not had a chance to look at the issue thoroughly, so I just do not feel comfortable answering the second part, 

where Congress has authorized specific military action. 

But I do agree with the first part of your question, that there 

should be an explicit and very detailed definition of who the commission should apply to and what the jurisdictional limits are. 

Senator LEAHY. Admiral MacDonald? 

Admiral MACDONALD. Yes, sir. I would agree with General 

Black. The discussions we have been having with the DOJ-DoD 

working group have involved the jurisdictional reach of the commission’s legislation. 

Senator LEAHY. General Rives? 

General RIVES. I agree, Senator. 

Senator LEAHY. General Sandkuhler? 

General SANDKUHLER. I agree, Senator. 

Senator LEAHY. Thank you. 

Mr. Bradbury, one week after the Supreme Court handed down 

its decision in Hamdan, I am sure you are aware, the memorandum that Gordon England, the Deputy Secretary of Defense, 

issued, he instructed officials at the Department of Defense to enVerDate 0ct 09 2002 14:53 Aug 01, 2007 Jkt 036934 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\36934.TXT SJUD1 PsN: CMORC
26

sure that all their personnel adhere to the requirements of Common Article 3 of the Geneva Conventions. 

Have other agencies, such as the CIA, issued similar instructions? 

Mr. BRADBURY. Well, Senator, I will say this. I cannot discuss 

any intelligence activities of the United States here. 

Senator LEAHY. Aside from intelligence activities, are you aware 

of any other departments that have issued similar instructions? 

Mr. BRADBURY. This is what I can say. The court’s interpretation 

of Common Article 3, that it applies to our war with Al Qaeda, does 

mean that it encompasses all Al Qaeda detainees held by the 

United States. 

Senator LEAHY. Well, would you not agree that the Hamdan decision removed any doubt that all U.S. personnel must comply with 

Common Article 3? 

Mr. BRADBURY. With respect to persons detained by the United 

States in our war with Al Qaeda, that is correct. 

Senator LEAHY. Do you agree that the Hamdan decision removed 

any doubt that all U.S. personnel must comply with Common Article 3? 

Mr. BRADBURY. To the extent it applies, no. You are absolutely 

right. 

Senator LEAHY. So let me ask you this question. Is the memorandum issued for people in the Department of Defense by Gordon 

England the only such directive issued in the U.S. Government? 

Mr. BRADBURY. Again, Senator, I cannot discuss any intelligence 

activities of the United States. 

Senator LEAHY. I am not asking for you to discuss that. I am 

asking for procedure. You obviously are not going to answer, so let 

me ask you this. Has the Office of Legal Counsel issued any guidance on this issue? 

Mr. BRADBURY. I am not really in a position to discuss specific 

legal advice that has been given. I have given legal advice on the 

application of Common Article 3. As I have said today, it does generally apply to detainees. 

Senator LEAHY. You cannot tell me whether the Office of Legal 

Counsel has issued any guidance on this issue? 

Mr. BRADBURY. I have participated in advising on this issue. For 

example, I reviewed Deputy Secretary England’s memo before—— 

Senator LEAHY. That was not my question. Has the Office of 

Legal Counsel issued any guidance on this issue? 

Mr. BRADBURY. I do not think I would say we have issued guidance. I would say that I participated in giving advice. For example, 

I did advise the Department of Defense and I reviewed Deputy Secretary England’s memo. 

Senator LEAHY. Let me ask all the JAGs. Could the appeals process for courts-martial be used for military commissions? If not, why 

not? 

Admiral MACDONALD. Sir, I would say that you could use that 

process. You could also use the DTA, the Detainee Treatment Act, 

process. You could have an appeal to the DC Circuit Court of Appeals. That would be a way to orchestrate the appeal process. But 

you could use the UCMJ process. 

Senator LEAHY. General Black? 

27

General BLACK. It is an alternative, sir, and certainly worth considering. We have extraordinarily competent and talented judges at 

appellate levels throughout the Services. 

Senator LEAHY. Who are also used to handling classified information. 

General BLACK. Yes, sir. That is true. 

Senator LEAHY. Without leaks. 

General BLACK. Yes, sir. 

Senator LEAHY. General Rives? 

General RIVES. Yes, sir. Senator, we could use the existing military appellate process. I personally believe a better process would 

be perhaps creating a new court where you had appellate military 

judges or other qualified personnel, and then appeals from that 

court’s decision could go to the DC Circuit. 

General SANDKUHLER. Senator, I would be concerned about some 

of the provisions within the appellate process that are unique to 

the military, in particular, Article 66 of the UCMJ which gives our 

initial appellate court both the ability to be a finder of fact and a 

reviewer of the law. That is an authority that I think would be inapplicable in this situation. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Leahy. 

General Black, we know you have a commitment to address a 

group about to depart for Iraq, so we thank you for coming. You 

are excused. You may leave a little early. We are not too far from 

finishing, generally. But that business is more pressing and more 

important than remaining here. 

General BLACK. Thank you, sir. 

Chairman SPECTER. Senator Leahy will submit more questions 

for the record. 

Senator Graham? 

Senator GRAHAM. Thank you. 

I would like to revisit a line of questioning that just occurred. 

General Rives and General Sandkuhler, I think what General 

Myers was talking about was an April, 2003 memo. 

Let us put this in context. In December of 2002, I believe it was, 

some interrogation policies came about as a result of an Office of 

Legal Counsel interpretation of the torture statute. 

Would it be fair to say that the military Judge Advocates, in December of 2002, January of 2003, along with General Counsel, Mr. 

Moore, were very upset by this approach? 

General RIVES. Yes, Senator, it is. 

Senator GRAHAM. Speak up, please. 

Senator KENNEDY. Yes, I agree, Senator. 

Senator GRAHAM. And in February, I think you wrote a memo, 

General Rives, saying that if we go down this road, we are going 

to get our own troops in trouble and lose the moral higher ground. 

Is that correct? 

General RIVES. A working group had been set up in mid-January 

of 2003. On the 4th of February, the report was released. It was 

labeled ‘‘Final Report.’’ On the 5th of February, I sent a memo in 

to the working group chairperson to lodge objections along those 

lines, Senator. 

28

Senator GRAHAM. Mr. Chairman, I believe that has now been declassified and I would like to make it a part of this hearing. 

Simply put, you said, I think, in the concluding paragraph, that 

if we go down the road that is being chartered here, we could lose 

the moral high ground and put our own troops at risk. Is that correct? 

General RIVES. I did write along those lines, Senator. 

Senator GRAHAM. As a matter of fact, General Sandkuhler, I 

think you were even more direct. You were saying to the civilians 

that Article 93 of the UCMJ makes it a crime to simply slap. A 

simple assault could be a crime against a detainee. 

Your concern was that if you tried to interpret the torture statute in some tortured way, that you could run afoul of the UCMJ, 

and no one was looking at that side of the coin. Is that correct? 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. Now, in February, you wrote your memos. In 

March, there was a discussion about revising the December interrogation techniques. Is that correct? 

General RIVES. A follow-on report to the February 4 report was 

released on the 6th of March, Senator. 

Senator GRAHAM. Did you all have concerns at that time, still? 

General RIVES. I had some concerns. I had lodged my concerns 

in February. We were not specifically asked for inputs. Because 

mine were already a matter of record, I did not add to the concerns 

I had previously lodged. 

General SANDKUHLER. We presented a shorter list of concerns, 

but our concerns were continuing from the prior memorandum. 

Senator GRAHAM. Were you ever under the impression that this 

project was going to be shelved? 

General RIVES. We last heard of any activity in this process in 

March of 2003, after the abuses of Abu Ghraib became public in 

the spring of 2004, and then we saw that a final report, in fact, 

had been presented in April of 2003. 

Senator GRAHAM. Did you ever get the input on that final report? 

Did you get to see it? Did you give any input? 

General RIVES. I was not aware of the April, 2003 report until 

June 16, 2004. 

Senator GRAHAM. What about you, General Sandkuhler? 

General SANDKUHLER. I do not recall the exact dates, but there 

was a significant time lag. We saw two preliminary reports, and 

the final report not for a year and a half. 

Senator GRAHAM. All right. 

Now, let us get back to the war on terror, proper. Is it fair to 

say that Al Qaeda are trained to allege abuse and coercion? 

General SANDKUHLER. Senator, if you read the bible or the manual of Al Qaeda which is now available in many sources, they are 

trained to allege coercion. That is part of their handbook. 

Senator GRAHAM. Do the JAGs feel comfortable with the idea of 

taking torture off the table and never using any benefits that may 

flow from torture, that when it comes to allegations of coercion by 

a defendant in a military commission, that the military judge be 

the gatekeeper to decide what happened and what did not? Is that 

a fair process? 

General SANDKUHLER. Yes, Senator. That is a fair process. 

29

Senator GRAHAM. General Rives? 

General RIVES. I agree, Senator. 

Admiral MACDONALD. Yes, sir. 

Senator GRAHAM. So we could have a military judge using the 

standards that we are comfortable with in our own system to be 

the gatekeeper there when these allegations are made, taking torture off the table. Is that correct? 

Admiral MACDONALD. Yes, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. All right. 

Now, when it comes to Common Article 3, do you have concerns 

that if we do not domestically define how Common Article 3 operates, that international decision makers could have an influence on 

the outcome if we just keep it in current treaty form? 

General SANDKUHLER. I do, Senator. 

Admiral MACDONALD. I do as well. 

General RIVES. Yes, sir. 

Senator GRAHAM. And the better course would be to sit down and 

specifically list in Title 18 what would be a war crime, making sure 

that that which is listed gives our troops an ability to conform their 

conduct, and when it comes time to codify how Common Article 3 

will be implemented, to do so with as much definition and specificity as possible under our domestic law. Is that correct? 

Admiral MACDONALD. Yes, sir. 

General RIVES. Yes, sir. 

General SANDKUHLER. Yes, sir. 

Senator GRAHAM. Mr. Chairman, this hearing has been hugely 

helpful. It has been a great exercise. 

I believe, Mr. Bradbury, I appreciate what you have done. You 

have reached out to me and others, and to the legal community in 

the military. 

These hard questions about classified information, how to define 

Common Article 3, are within our ability to solve these problems 

if we will follow what the Chairman was suggesting early on, working together, not separately, getting the Congress involved with the 

administration, having the legal community from our military relying on our commander’s judgment that we can get this right this 

time around, only if we do it together with a view that we have 

to sell it to not only our own troops, but to the world, as being fair. 

General Myers, thank you for coming as a commander, because 

it is important for me to hear from you what is at stake here if we 

do not get this right. 

Thank you very much. 

Chairman SPECTER. Thank you, Senator Graham. 

Admiral MacDonald, you had made reference to Section 501, I 

believe it was, where the procedures were established for the military on classified information, to handle it in a way which is balanced and fair. What are those essential provisions? 

Admiral MACDONALD. Sir, it is Military Rule of Evidence 505. At 

court-martial, the military judge can hold an in camera proceeding 

where he takes a look at the classified evidence. 

He can determine what parts will come in, what will not, based 

on a relevance determination. But all of the evidence that the judge 

30

determines to be relevant, if it remains classified, that has to be 

shown to the accused. 

Chairman SPECTER. Would there not be a problem showing an Al 

Qaeda defendant, for example, classified information under those 

terms? 

Admiral MACDONALD. Yes, sir, there would. I think the answer 

may be that, in that instance, you would have to give up the prosecution of that particular charge. 

Chairman SPECTER. So it would not be a matter of proceeding 

without informing the defendant so that he would not be denied 

confrontation, but you would have to drop the charge? 

Admiral MACDONALD. Yes, sir. 

Chairman SPECTER. Mr. Bradbury, Common Article 3 is in the 

war crimes section as a prosecutable offense. Is there sufficient 

specification for a prosecutor to charge Common Article 3 in those 

generalized terms, and give the defendant with enough information 

to defend? 

Mr. BRADBURY. I think that is a very serious question. I am not 

sure that there is. Certainly, Common Article 3 has some very 

clear and serious offenses that it condemns. 

As to those offenses, I think you probably do have sufficient notice and clarity as to what the offenses would be. But as to 

humiliating and degrading treatment, I definitely think that it 

lacks essential clarity and certainty. 

As you may know, Mr. Chairman, it is not a treaty obligation of 

the United States under the Geneva Conventions to make all violations of Common Article 3 a war crime under our domestic law. 

We chose to do that in 1997, at a time when we viewed Common 

Article 3 as applying only to civil wars, internal conflict like the 

conflict in Rwanda, for example, where I think everybody can agree 

that the kind of conduct that is currently being prosecuted under 

the international criminal tribunal for Rwanda are very serious, 

egregious, and clear offenses of the laws of war, and I think you 

could prosecute those under Common Article 3. But no prosecutions 

have ever been brought in the United States under our War Crimes 

Act. 

Chairman SPECTER. Well, we would appreciate it if you would 

give some further thought to that recommendation as to whether 

it ought to be left open so that charges could be brought on the 

kind of conduct you described which happened in Rwanda, as opposed to limiting that provision to specified offenses which we 

would delineate by Congressional enactment. 

The Hamdan case did not deal with detainees, but I would like 

to take that subject up with you gentlemen for just a minute. 

General Myers, as you know, we have several hundred detainees 

in Guantanamo. A number estimated as high as 25 have been released and returned to the battlefield, so that is not a desirable 

thing to happen. 

The combat review status is emphasized. It happens once a year. 

There are no clear-cut lines for determining what showing there 

must be to continue to hold somebody as an enemy combatant. Do 

you think that the current system is satisfactory? 

General MYERS. I think one of the fundamentals that has to surround everything we have discussed, is the fundamental that 

31

enemy combatants can be held until the end of conflict. I think that 

is important. 

The review process, I thought, as it was invigorated by Secretary 

England when he took responsibility for that as the Deputy Secretary of Defense, was rigorous. That is my understanding of it. 

Chairman SPECTER. When you talk about the end of a conflict, 

when you had what have been normal wars, if there is any such 

thing, it ended. The war against terrorism has no end in sight. 

General MYERS. No. It is a dilemma. It could be a long fight. The 

alternative, though, to release the individuals who would commit 

war crimes against humanity, not just the United States, and kill 

our men, women and children without thinking about it, is not a 

very good alternative. I am not the legal expert; these folks here 

are. 

But until we find a better way to deal with this—because they 

all will not come to trial. We probably cannot bring war crimes 

charges against all of them. But they are very, very dangerous people and we have to figure out a way to deal with them. 

Chairman SPECTER. Admiral MacDonald, is there a better way to 

do it? 

Admiral MACDONALD. Sir, I would say that we hold an annual 

Administrative Review Board, an ARB, down in Guantanamo. They 

do not release any detainees unless the Administrative Review 

Board process determines that they are no longer enemy combatants. 

Chairman SPECTER. What sort of information—let us not call it 

evidence—or data is sufficient to make a determination that that 

individual is too dangerous to release? 

Admiral MACDONALD. Sir, I think they have a standard of probable cause to believe that the detainee still poses a threat to the 

United States. 

Chairman SPECTER. How do they make a determination on probable cause with such scarcity of information available as to what 

that person did? 

Admiral MACDONALD. Well, sir, there is quite a bit of intelligence 

they have in Guantanamo which they continue to exploit that they 

use to make those determinations at the Administrative Review 

Board. 

I would just say, Senator, we are not required to release any detainee until the end of hostilities. That is a principle in international law. So if the ARBs are releasing individuals, it is because 

the administration has determined they no longer pose a threat. 

Chairman SPECTER. General Rives, does that satisfy you? 

General RIVES. The processes we originally had in effect at 

Guantanamo Bay to process the detainees did not satisfy me, but 

the processes that General Myers first described, and also Admiral 

MacDonald, that we now have in effect, starting with the Combatant Status Review Tribunal, is a careful process that does comply 

with the Geneva standards. 

We were behind once the decision to run the CSRTs was made, 

but we caught up over a period of several months. Any new detainee would be processed under the Combatant Status Review Tribunal rules. 

32

Then as Admiral MacDonald said, they are reviewed on an annual basis by the ARB, the Administrative Review Boards. I am 

convinced the processes are fair, and I would be comfortable with 

similar processes being applied to American Service members who 

may be held. 

Chairman SPECTER. General Sandkuhler, do you agree? 

General SANDKUHLER. I agree, Senator. I also would state that 

those processes we have established, the CSRT and the ARB, exceed the requirements of the Geneva Convention. 

Chairman SPECTER. Mr. Bradbury, the Committee would appreciate if you could give us some more specification as to what constitutes the probable cause standard that Admiral MacDonald articulates to give us some better handle. 

That issue is not before us in the Hamdan decision, as we all 

know, but it may well be. Congress has the responsibility under Articles 1, 6 and 8 to make a determination as to what is done with 

those individuals. 

It is true we do not want to release dangerous people to come 

back and kill Americans or kill other people and have to face them 

again on the battlefield, but we have not been able to come to grips 

with what that probable cause is. So if you could provide that to 

the committee, it would be appreciated. 

Mr. BRADBURY. I would be happy to do so, Mr. Chairman. 

Chairman SPECTER. Well, my distinguished Chief Counsel wants 

to know, how long will you hold them? Does anybody have an alternative to forever, or until we conclude the war on terrorism is over, 

whichever occurs last? 

[No response] 

Chairman SPECTER. The silence is profound. This has been a 

very worthwhile hearing. I think Senator Graham was exactly correct. We have got a lot of tough issues. We have got a very heavy 

responsibility, but we could meet it. But we are going to have to 

work together to find an answer. Congress is going to have to make 

the final determination here. 

Thank you all very much. That concludes our hearing. 

[Whereupon, at 11:08 a.m. the hearing was adjourned.] 

Questions and answers and submissions for the record follow.]

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