U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

57–711 PDF 2010

S. HRG. 111–563 

PROSECUTING TERRORISTS; CIVILIAN AND 

MILITARY TRIALS FOR GTMO AND BEYOND 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TERRORISM, 

TECHNOLOGY AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 28, 2009 

Serial No. J–111–40 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

BENJAMIN L. CARDIN, Maryland, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

RON WYDEN, Oregon 

EDWARD E. KAUFMAN, Delaware 

JON KYL, Arizona 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BILL VAN HORNE, Democratic Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 95 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 4 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 2 

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

statement .............................................................................................................. 144 

WITNESSES 

Edney, Michael J., Gibson Dunn & Crutcher LLP, Washington, D.C. ............... 36 

Johnson, Jeh C., General Counsel, Department of Defense, Arlington, Virginia ....................................................................................................................... 8 

Kris, David, Assistant Attorney General, National Security Division, Department of Justice, Washington, D.C. ..................................................................... 7 

Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, D.C. ... 31 

Pearlstein, Deborah N., Associate Research Scholar, Woodrow Wilson School 

of Public and International Affairs, Princeton, New Jersey ............................. 34 

QUESTIONS AND ANSWERS 

Responses David H. Michael Edney of to questions submitted by Senators 

Kyl and Sessions .................................................................................................. 51 

Questions submitted by Senators Feingold and Sessions to Jeh Johnson .......... 80 

Questions submitted by Senators Feingold, Sessions and Kyl to David Kris .... 83 

Questions submitted by Senator Kyl to David Kris and Jeh Johnson ................ 88 

(Note: Responses to questions were not received as of the time of printing, 

August 9, 2010.) 

Responses David H. Laufman of to questions submitted by Senators Kyl 

and Sessions ......................................................................................................... 90 

Responses of Deborah N. Pearlstein to questions submitted by Senator Kyl .... 92 

SUBMISSIONS FOR THE RECORD 

Edney, Michael J., Gibson Dunn & Crutcher LLP, Washington, D.C., statement ...................................................................................................................... 97 

Johnson, Jeh C., General Counsel, Department of Defense, Arlington, Virginia, statement ................................................................................................... 118 

Kris, David, Assistant Attorney General, National Security Division, Department of Justice, Washington, D.C., statement .................................................. 122 

Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, D.C., 

statement .............................................................................................................. 127 

Pearlstein, Deborah N., Associate Research Scholar, Woodrow Wilson School 

of Public and International Affairs, Princeton, New Jersey, statement .......... 146 

ADDITIONAL SUBMISSION FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list: 

Human Rights First, ‘‘In Pursuit of Justice’’ 2009 Update, July 2009 

(1) 

PROSECUTING TERRORISTS; CIVILIAN AND 

MILITARY TRIALS FOR GTMO AND BEYOND 

TUESDAY, JULY 28, 2009 

U.S. SENATE, SUBCOMMITTEE ON TERRORISM AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:41 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Cardin, Feingold, Durbin, Whitehouse, Kaufman, Sessions, Hatch, and Kyl. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Chairman CARDIN. The Subcommittee will come to order. I want 

to apologize for being a few minutes late. Our caucus lunches ran 

a little bit late, and then we had a vote on the Senate Foreign Relations Committee that I had to attend on some nominee. So I 

apologize to our witnesses for starting a few minutes late. 

Shortly after taking office, President Obama ordered the closure 

of the Guantanamo Bay detention facility within a year. I commended President Obama at the time for ordering the closure of 

the detention center. President Obama is sending a clear message 

to the world that we are reestablishing the rule of law in the 

United States, and that we as a Nation will abide by our own international obligations. 

As the Chairman of the United States Helsinki Commission, no 

other concern has been raised with the United States delegation by 

our colleagues in Europe as often—and as in earnest—as the situation in Guantanamo Bay. As a Member of the House of Representatives in 2006, I voted against the Military Commissions Act. At the 

time, I stated that I believed it was not sound legislation, and I 

thought it was susceptible to challenge in the courts. The legislation set up the flawed system of tribunals in Guantanamo Bay that 

ultimately was rejected by the Supreme Court. 

Let me make this very clear. I want the U.S. Government to 

bring terrorist suspects to justice quickly and effectively. We must 

remain vigilant against the terrorist attacks on our Nation on September 11, 2001. But the system we use must meet fundamental 

and basic rule-of-law standards. Americans have a right to expect 

this under the Constitution, and our Federal courts will demand it 

when reviewing a conviction. We would, of course, expect other nations to use a system that provides no less protection for Americans 

2 

that are accused of committing crimes abroad and are called before 

foreign courts. 

This May, President Obama classified the remaining Guantanamo detainees into five categories. Today’s hearing will focus on 

the first two categories: first, detainees who have violated American criminal laws and can be tried in Federal courts, our Article 

III courts; and, second, detainees who violate the laws of war and 

can be tried through military commissions. 

I understand that the Detention Policy Task Force, under the 

guidance of the Departments of Justice and Defense, has extended 

its work for an additional 6 months in order to issue a comprehensive final report and recommendations. 

Last week, the task force issued a preliminary report, along with 

a protocol for the determination of Guantanamo cases referred for 

prosecution. This protocol lays out factors that the Departments of 

Justice and Defense will consider in deciding whether to try a case 

in an Article III court or in a reformed military commission. The 

protocol states that ‘‘there is a presumption that, where feasible, 

referred cases will be prosecuted in an Article III court, in keeping 

with the traditions principles of Federal prosecution. Nonetheless, 

where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there.’’ 

I might point out that the Senate did enact an amendment to the 

Department of Defense authorization bill which may not be totally 

consistent with the position which the administration has taken. 

We do have two distinguished panels of witnesses to today to 

help us in our deliberations, and I look forward to their testimony. 

At this point, I would recognize the Republican leader on this 

Committee, Senator Kyl. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Mr. Chairman, and I, too, thank all of 

the witnesses for being here and presenting testimony today. 

We are going to hear testimony of several witnesses on the extent to which military commissions should be used in the prosecution of terrorists presently detained at Guantanamo. Before they 

testify, however, I think it is important to recall that military commissions have a long history in this country precisely because it is 

widely recognized that procedures governing civilian criminal trials 

lack the flexibility that is frequently needed to deal appropriately 

with the unique circumstances presented in war. These include 

issues regarding the admissibility of hearsay evidence obtained on 

the battlefield and the protection of classified information. Military 

commissions can provide a workable solution to these issues while 

still providing the accused with a fair trial. 

Opponents of military commissions like to point out that we have 

successfully convicted terrorists in civilian courts, such as Omar 

Abdul Rahman, the so-called Blind Sheikh. But rather than approve the adequacy of civilian courts for terrorist prosecutions, 

these cases actually highlight the national security risks inherent 

in prosecuting terrorists as if they were common criminals. 

3 

In the case of Mr. Rahman, for example, intelligence information 

was compromised when the Government was forced to turn over to 

the defense a list of unindicted co-conspirators, as required in civilian prosecutions. According to the 9/11 Commission’s final report, 

the release of that list had the unintended consequence of alerting 

some al Qaeda members to the U.S. Government’s interest in them. 

Similarly, Judge Mukasey, who presided over several terrorist 

prosecutions, has described how our national security interests 

were compromised in the prosecution of Ramzi Yousef when, and 

I am quoting now, ‘‘an apparently innocuous bit of testimony in a 

public courtroom about delivery of a cell phone battery was enough 

to tip off terrorists still at large that one of their communication 

links had been compromised.’’ 

But he goes on to say, ‘‘This communication link had provided 

enormously valuable intelligence, but as a result of the public testimony, the link was immediately shut down and further intelligence 

information lost.’’ 

Cognizant of these serious national security concerns, Congress 

has in a bipartisan fashion repeatedly ratified its support for military commissions. Indeed, just last week, as the Chairman noted, 

the Senate passed an amendment to the National Defense Authorization Act that once again stated that military commissions were 

the preferred forum of the trial of terrorists. 

In light of the significant national security risks associated with 

civilian prosecution of terrorists and the oft-repeated support of 

military commissions by Congress, I am deeply troubled that the 

Obama Justice Department’s July 20 protocol for Guantanamo case 

adopts a presumption that terrorism cases will be prosecuted in civilian courts. In my view, the Justice Department’s July 20 policy 

puts Americans at risk unnecessarily. Military commissions have 

been used for over two centuries to bring justice to war criminals, 

and they have done so in a way that is fair to the accused. 

More troubling than what we heard from the Justice Department 

on July 20, however, is what we did not hear. President Obama has 

issued an arbitrary deadline for closing Guantanamo by January 

22, 2010, less than 6-months from now. But, thus far, we know precious little about how he intends to do it. I would hope perhaps at 

this hearing, which the Chairman initially entitled ‘‘Closing Guantanamo: The Path Forward Under the Rule of Law,’’ might provide 

an opportunity for the administration to lay out its plan. Apparently, however, administration officials are not ready to talk about 

the plan, if one exists. 

I would add that the Justice Department has been unwilling to 

fulfill even the simplest requests for information. For example, I 

sent a letter to Attorney General Holder on May 29, 2009, asking 

for details regarding the terrorists who are currently imprisoned in 

the United States. I reiterated my request during the Attorney 

General’s oversight hearing before this Committee on June 17th, 

but still have not received a response from the Justice Department. 

It is clear to even the most casual observer that the administration will either need to push back its arbitrary deadline for closing 

Guantanamo or bring those presently detained at Guantanamo to 

the United States. Bringing the detainees to the United States 

could, of course, substantially curtail the range of options available 

4 

to detain and prosecute suspected terrorists. It could also mean 

that detainees who are not convicted will be ordered released into 

our country. This is understandably of concern to all Americans, especially since the Pentagon believes that more than 70 previously 

released Guantanamo detainees have resurfaced on the battlefield. 

We, therefore, need to know whether the administration intends to 

bring Guantanamo detainees into the United States before we can 

have an informed debate on prosecution alternatives. 

Finally, I would note that any plan to bring detainees into the 

United States would likely require congressional action. It is, therefore, critical that the administration devise a plan and share it 

with the Congress as soon as possible while there are still sufficient legislative days to fully consider and debate the available options by the President’s self-imposed deadline. 

Chairman CARDIN. Thank you, Senator Kyl. 

Senator Durbin has requested an opportunity to give an opening 

statement as Chairman of the Human Rights Subcommittee. Without objection, Senator Durbin is recognized. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman. 

I think what you have just heard articulated by my colleague 

Senator Kyl is a point of view that has been expressed many times 

on the floor of the Senate, and it can be summarized very simply: 

When it comes to terrorists, American courts cannot try them and 

American jails cannot hold them. 

I could not disagree more. Any discussion of prosecuting suspected terrorists held at Guantanamo should begin with an examination of the facts. For 7 long years, the Bush administration 

failed to convict any of the terrorists who planned the 9/11 terrorist 

attack, and for 7 long years, only three individuals—three—were 

convicted by military commissions at Guantanamo Bay. 

In contrast, look at the record of our criminal justice system in 

holding terrorists accountable. Richard Zabel and James Benjamin, 

two former Federal prosecutors with extensive experience, published a detailed study on prosecuting terrorists in America’s 

courts, our Federal courts. Here is what they concluded: From 

9/11 until the end of 2007, 145 terrorists have been convicted and 

sentenced for their crimes. And according to the Justice Department, in just the last 5 months, since January 1, 2009, more than 

30 terrorists have been successfully prosecuted or sentenced in 

Federal courts. 

To argue that American courts cannot prosecute terrorists? Look 

at the facts. We not only have done it in the past; we are doing 

it now. And this argument that we are somehow at risk when we 

try these terrorists of disclosing sensitive classified information, 

this goes back to a case that was prosecuted involving the 1993 

World Trade Center, where the prosecutors failed to use CIPA, the 

Classified Information Procedures Act. According to these same individuals I mentioned earlier, the Government did not invoke CIPA 

to prevent the disclosure of a list of unindicted co-conspirators. 

But the Government has learned from this case, and in later terrorism prosecutions, like the trial of the 1998 embassy bombers, 

5 

the Government did use CIPA to protect sensitive information. The 

law is there. It can be used. Terrorists can still be prosecuted. 

Now, last month, the Obama administration transferred Ahmed 

Ghailani to the United States to be prosecuted for his involvement 

in the 1998 bombings of our embassies in Kenya and Tanzania 

which killed 224 people, including 12 Americans. Indeed, here is 

what the President said about Ghailani: ‘‘Preventing this detainee 

from coming to our shores would prevent his trial and conviction 

for killing 12 Americans. And after over a decade,’’ the President 

said, ‘‘it is time to finally see that justice is served. That is what 

we intend to do.’’ 

Some Members of Congress have a different perspective. Recently, a Member of the House Republican leadership, Mr. Cantor, 

criticized the decision to bring Ghailani to trial. He said, and I 

quote, ‘‘We have no judicial precedents for the conviction of someone like this.’’ 

The truth is there are many precedents. Let me name a few: 

Ramzi Yousef, the mastermind of the 1993 World Trade Center 

bombing; Omar Abdul Rahman, the so-called Blind Sheikh; Richard 

Reid, the Shoe Bomber; and Zacarias Moussaoui. In fact, there is 

a precedent for prosecuting in U.S. courts the terrorists who were 

involved in bombing those embassies. This is the very same attack 

for which Ghailani is now being prosecuted. 

In 2001, four men were sentenced to life without parole at the 

Federal courthouse in Lower Manhattan, the very same court 

where Ghailani is being tried. The argument that we cannot prosecute him in that court, the argument that it is somehow unsafe 

to the people of New York City for him to be incarcerated while he 

is being tried really just defies history. 

Susan Hirsch, an American citizen, lost her husband in Kenya at 

the embassy bombing. She testified at the sentencing hearing for 

the four terrorists who were convicted. She supports the Obama administration’s decision to prosecute Ghailani. She said, and I quote, 

‘‘I am relieved we are finally moving forward. It is really, really important to me that anyone we have in custody accused of acts related to the death of my husband and others be held accountable 

for what they have done.’’ 

Mrs. Hirsch supports closing Guantanamo. Some of the people 

who are speaking do not. They have made that very clear. She believes it is safe to try Ahmed Ghailani in the United States. She 

said, ‘‘I trust the New York Police Department.’’ 

Listen to what she said about the critics of the administration. 

‘‘They are just raising fear and alarm. There is a lot more to be 

afraid of when we have Guantanamo open.’’ I agree with her. I 

have faith in the New York Police Department. I have faith in our 

law enforcement agencies. I have faith in our court system. They 

have proven time and again they can rise to this challenge. 

Some of my colleagues on the other side argue that we should 

continue to not prosecute Guantanamo detainees in our courts because no prison in America can safely hold them. Remember that 

flap? Remember that dust-up as to whether or not terrorists could 

be successfully incarcerated, securely held in the United States? 

Senator Lindsey Graham, our colleague on the Judiciary Committee, also a military lawyer, said, and I quote, ‘‘The idea we canVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
6 

not find a place to securely house 250-plus detainees within the 

United States is not rational.’’ 

The record is clear. Today our Federal prisons hold 355 convicted 

terrorists. No prisoner has ever escaped from a Federal supermaximum security facility. Clearly, our corrections officers know how 

to hold terrorists. 

I recently visited the Marion Federal prison, which used to be 

our supermax, in southern Illinois, and I can tell you what the 

guards told me: ‘‘You can bring any terrorist here that you want. 

We are holding terrorists today. We can hold them safely and securely.’’ And the mayor of Marion, Illinois, said, ‘‘I hope you will 

allow us to expand this prison. We can do our job for America, as 

we have done for so many years.’’ 

So let us get to the bottom line. If we do not bring suspected terrorists to this country to be prosecuted and detained, it is almost 

impossible to close Guantanamo, and that is really what this argument is all about. Who wants to close Guantanamo? Not just the 

President of the United States, but General Colin Powell, the 

former Chairman of the Joint Chiefs of Staff and Secretary of State 

under President Bush, has called for closing Guantanamo, as has 

Republican Senators John McCain and Lindsey Graham; former 

Republican Secretaries of State James Baker, Henry Kissinger, and 

Condoleezza Rice; Defense Secretary Robert Gates; Admiral Mike 

Mullen, and General David Petraeus—all have called for us to close 

Guantanamo. They understand that as long as it is open, it is a 

recruiting tool for terrorists around the world. 

It is time for us to turn the page and acknowledge history. We 

have successfully prosecuted and incarcerated terrorists in the 

United States much more successfully than we have been able to 

do with any military commission at Guantanamo. 

I yield. 

Chairman CARDIN. Let me introduce our first panel of administration witnesses from the Department of Justice and Department 

of Defense. I will introduce them first, and then I will ask you to 

rise to take the oath. 

Our first witness is David Kris, who was sworn in as an Assistant Attorney General for National Security on March 25, 2009. He 

has worked in both the public and private sectors. He served in the 

Department of Justice from 1992 to 2003. As an Associate Deputy 

Attorney General from July 2000 to May 2003, Mr. Kris’ work focused on national security issues, including supervising the Government’s use of FISA, representing the Department on the National Security Council, and assisting the Attorney General conducting oversight of the intelligence community. 

Our second witness is Jeh Charles Johnson, who was appointed 

the General Counsel of the Department of Defense on February 10, 

2009, following nomination and confirmation by the U.S. Senate. In 

this capacity, he serves as the chief legal officer of the Department 

and the legal adviser to the Secretary of Defense. Mr. Johnson’s 

legal career has been a mixture of private practice and distinguished public service. Mr. Johnson began his career in public service as an Assistant United States Attorney in the Southern Division of New York, where he prosecuted public corruption cases between 1989 and 1991. 

7 

Gentlemen, if you would please stand? Do you affirm that the 

testimony you are about to give before the Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

Mr. KRIS. I do. 

Mr. JOHNSON. I do. 

Chairman CARDIN. Thank you. Please have a seat. 

Mr. Kris, we would like to hear from you. 

STATEMENT OF DAVID KRIS, ASSISTANT ATTORNEY GENERAL, 

NATIONAL SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. KRIS. Thank you. Mr. Chairman, Senator Kyl, and members 

of the Committee, thank you for inviting me to testify. 

Federal prosecution in Article III courts can be an effective method of protecting national security, consistent with fundamental due 

process and the rule of law. In the 1990s, I prosecuted a group of 

violent anti-government extremists. Like their more modern counterparts, they engaged in what would now be called ‘‘law-fare,’’ and 

the trials were very challenging. But prosecution succeeded not 

only because it incarcerated these defendants, but also because it 

deprived them of any legitimacy for their anti-government beliefs. 

Military commissions can help do the same for those who violate 

the law of war—that is, not only detain them for longer than might 

otherwise be possible under the law of war, but also brand them 

as illegitimate war criminals. 

To do this effectively, however, the commissions themselves must 

first be reformed, and the legislation now pending in Congress is 

a tremendous step in that direction. If enacted with the changes 

that we suggest, it will make military commissions both fundamentally fair and effective. 

Now, as the Committee knows, a task force established by the 

President is actively reviewing each of the detainees now held at 

Guantanamo Bay. And although I cannot refer to precise numbers, 

a significant number of cases have been referred for possible prosecution. Those cases will be reviewed and worked up by joint teams 

of officials from DOJ and DOD using a protocol issued jointly by 

DOJ and DOD that we have released publicly and to which Senator 

Cardin referred in his opening remarks. 

Under the protocol, there is a presumption, where feasible, that 

referred cases will be prosecuted in Federal court, but that presumption can be overcome if other compelling factors make it more 

appropriate to prosecute in a commission. 

There are three main groups of factors identified in the protocol 

that resemble the factors that govern forum selection by DOJ prosecutors every day, whether the choice is between Federal and State 

court, U.S. courts and foreign courts, or civilian courts and traditional military courts martial. 

Perhaps the most important point about the protocol is that it 

avoids too many abstract, bright-line rules. It recognizes the existence of two prosecution fora—both effective, both legitimate—and 

provides that the choice between them needs to be made by professionals looking closely at the facts of each case, using flexible criteria established by policymakers. That flexibility, we submit, is 

8 

the most effective way to defeat the adversary consistent with our 

core values. 

I would be pleased to answer your questions. Thank you. 

[The prepared statement of Mr. Kris appears as a submission for 

the record.] 

Chairman CARDIN. Thank you very much. 

Mr. Johnson. 

STATEMENT OF JEH C. JOHNSON, GENERAL COUNSEL, 

DEPARTMENT OF DEFENSE, ARLINGTON, VIRGINIA 

Mr. JOHNSON. Thank you. You have my prepared written statement. I would like to make, consistent with that statement, a few 

observations. 

I want to thank the Senate for taking the initiative at reform of 

military commissions, various provisions to amend the Military 

Commissions Act of 2006. As I said in my prepared remarks, we 

in the administration think that the Senate has identified the 

issues for reform, and we have worked with the Senate Armed 

Services Committee to further amend the law. 

Since the bill was reported out of Committee on June 25th, the 

Department of Justice and we in the Department of Defense were 

happy that the language was amended to more closely reflect the 

Classified Information Procedures Act so that classified information 

in military commissions prosecutions is treated in a manner similar to the way in which it is treated in Federal civilian courts. 

As was noted, we in the Department of Defense and the Department of Justice have negotiated and agreed to a protocol for determining where cases should be prosecuted. As Mr. Kris noted, the 

operative language is that there is a presumption that, where feasible, cases should be prosecuted in an Article III court. And then 

there are three sets of factors for the consideration of that issue. 

The one thing that I can say in my experience as a public servant and as a former prosecutor, my prediction—and I say this with 

some confidence—is that as we go through these cases and we 

make these assessments, in all likelihood we are going to end up 

doing this on a case-by-case basis looking at the evidence, making 

the assessments case by case. With the protocol in place, I am sure 

that is going to be done carefully. 

The review is under way of each detainee that the President 

mandated in his Executive order. The Detention Policy Task Force 

is busy at work, and I just want to add to what was said before 

by noting that a bipartisan cross-section of distinguished Americans has called for the closure of the Guantanamo Bay detention 

facility and has done so for a period of years, not just as a matter 

of symbolism but as a matter of promoting our national security. 

We know that al Qaeda needs and uses bumper sticker messages 

for recruitment tools, and Guantanamo Bay for years has been one 

of them. There are public accounts of bin Laden himself citing 

Guantanamo Bay as a recruitment tool. 

This administration has imposed a deadline for closing Guantanamo Bay. We all know that bureaucracies work best with a deadline. In his second full day in office, this President imposed a deadline on us for closing Guantanamo Bay. We remain committed to 

9 

meeting that deadline, and we are confident that we will get the 

job done. 

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

[The prepared statement of Mr. Johnson appears as a submission 

for the record.] 

Chairman CARDIN. Well, thank you. 

First, let me say what I said in my introduction. I commend the 

President for his announcements on the closing, the intended closing of Guantanamo Bay. I have been representing our Nation in 

many international meetings, and Guantanamo Bay has been a 

very sore spot, and legitimately so, by our friends around the world 

as to the manner in which Guantanamo Bay has been handled. 

And I share Senator Durbin’s confidence that our Article III 

courts can handle the prosecution of those that we intend to hold 

criminally responsible for their actions. 

I want to first start, if I might. Mr. Kris, you did not give us any 

numbers because you said that you are starting the process. But 

can you just give us what you anticipate to be perhaps the percentages that we prosecute, that we want to take to criminal responsibility either in Article III courts or in military commissions? How 

many of that percentage-wise would you anticipate would be tried 

in our Article III courts and how many would you anticipate would 

be handled by military commissions? 

Mr. KRIS. That is a difficult question to answer for the reasons 

that Mr. Johnson and I both articulated, which is that under the 

protocol and under the approach that we intend to take here, we 

are going to evaluate these cases one at a time in a very fact-intensive way under the criteria that are set out in the protocol. So it 

is very difficult as a result of that approach to make statistical predictions about how they are going to shake out. 

I think the basic idea behind this protocol is that we need to look 

at these cases from close to—one at a time, and make the best 

judgment. So I am really not in a position to give you a percentage 

number or prediction. 

Chairman CARDIN. If I understand correctly, the decision to prosecute in an Article III court would be made by the Attorney General after consultation with the Secretary of Defense? 

Mr. KRIS. That is correct. 

Chairman CARDIN. If a decision is made not to prosecute in an 

Article III court, would that also be made by the Attorney General 

after consultation with the Secretary of Defense? Is that also going 

to be made at that level? 

Mr. KRIS. I think that is right, yes. 

Chairman CARDIN. And when do you anticipate the process of 

evaluating that, that is, evaluating whether they should be recommended for trial in Article III courts or in commissions to be 

completed, that review? 

Mr. KRIS. Well, that, too, is difficult to be precise about. I can 

give you some sense of how the process, I think, will work that may 

be responsive to your question without going on at too much 

length. 

Currently, the task force is more than halfway through its review 

of the 240 detainees, and they expect to finish that review by OctoVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
10 

ber 1st. Some of those then will be referred over for possible prosecution. Already a significant number have been. And then we will 

work those as quickly as possible. Some of the cases have already 

been investigated to some degree because they were or are pending 

in military commissions, others less so. 

So, again, I do not want to give you a precise date, but there is 

going to be very aggressive working up of these cases by these joint 

DOJ and DOD teams. We want to move forward quickly. We want 

swift and sure justice, and we want to get it right. 

Chairman CARDIN. Let me go over capacity in Article III courts 

just for one moment. We have heard that the preparations for trying a terrorist case coming out of Guantanamo Bay could be very 

time-consuming for the court. It could be very intense as far as 

budget support from the different participants in our criminal justice system. Is there any concern about the capacity in our Article 

III courts to handle the workload that may be presented? And is 

that a factor at all in making a judgment as to whether to try an 

individual in an Article III court, the cost factor associated with a 

trial in the Article III courts? 

Mr. KRIS. We are certainly mindful of both security concerns and 

cost concerns, and we would not want to choke the Federal courts 

with some sudden onslaught. But I think we believe that this can 

be handled. The courts are resilient. The Marshals Service is very 

capable. And I think we believe we can work this out successfully. 

It is going to have to be, again, worked out on a case-by-case basis, 

but we have every confidence in our institutions and our capacity 

to do this and do it well. 

Chairman CARDIN. Mr. Johnson, let me just ask you about the 

concern that the American Bar Association has expressed in regard 

to military commissions. They raised questions on hearsay evidence, on coercive evidence, on the effect of use of counsel. And 

even though there have been some modifications suggested, they 

still raise concern as to whether a military commission can, in fact, 

comply with the standards that the Bar Association believes is appropriate. 

Any comment about that? Can you satisfy their concerns? 

Mr. JOHNSON. I can answer that in two ways. I think that the 

Senate bill does a pretty good job of dealing with hearsay evidence 

dealing with authenticity issues in a way that takes account of 

military operations, intelligence collections operations. 

In terms of resources, the ability to prosecute and defend these 

cases, one of my special concerns is to ensure, for example, that our 

defense counsel are adequately trained and experienced in handling, potentially, capital cases. There are ABA standards for representation of a defendant in a capital case. And I have met with 

Colonel Masciola, our chief defense counsel at Guantanamo Bay, to 

ask him what he needs to provide his JAGs with adequate training 

and resources to deal with very, very significant defenses of these 

cases. And I am open and willing and ready and able to help him 

in that task. 

Chairman CARDIN. Thank you. 

Senator Kyl. 

Senator KYL. Thank you. 

11 

Just taking the questions of the Chairman and the testimony 

both of you gave, would either of you quibble with the generalization that while there are different potential concerns with both 

trials in Article III courts and military commissions, both can be 

made to work to try these particular kinds of cases? Is that a generalized correct statement? 

Mr. JOHNSON. Yes, sir, absolutely. 

Mr. KRIS. It sounds right to me as well. 

Senator KYL. Thank you. That is my view as well, and that is 

why I do want to relate to a comment my colleague Senator Durbin 

made. We have had this debate, I think, enough times to know 

each other’s lines, so he knows what I am about to say. He establishes a straw man and knocks it down. But I am not a straw man. 

His argument is, and I quote, that my argument is that ‘‘American courts cannot try them and American jails cannot hold them.’’ 

Nobody ever said that. I did not say it. You all do not believe that. 

I do not believe that. 

My criticism is in the change of the presumption, and that is 

what I want to get to here. It is not a question of can we. You have 

both established that we can do it in either forum. The question 

is: Should we? And there are reasons sometimes to go to one forum 

or the other. You indicated that will be on a case-by-case basis. 

My primary question is: Why change the presumption? Is it not 

true, Mr. Kris, that the presumption that, when feasible, the Article III courts will be presumed to be the appropriate court is a departure from our long tradition of trying these kinds of cases in 

military commissions for the most part? 

Mr. KRIS. Well, in the previous administration, I think there was 

a very strong preference for the use of military commissions to the 

exclusion of Article III courts. So I think it represents a change 

from the recent history. 

Senator KYL. How about going back to World War II and bringing it forward? 

Mr. KRIS. If you go back, I think, further in time, I think you 

have a history of both civilian and military prosecution. And I am 

not sure—perhaps I have not done enough historical research to 

really draw a solid line that favors military commissions over other 

prosecution options in all cases. 

Senator KYL. We can do that research and determine whether 

my assumption is correct or not. 

Mr. Johnson, in your written statement, you suggest that by 

changing the unlawful enemy combatant definition to a standard 

that is tied to the 2001 Authorization for the Use of Military Force, 

the administration is now detaining individuals pursuant to—and 

I am quoting—‘‘an authorization granted by Congress.’’ 

Is it also your view that the 2001 Authorization for the Use of 

Military Force provides congressional authority for transferring individuals to the United States and detaining them on U.S. soil? Or 

would that require further congressional authorization, in your 

view? 

Mr. JOHNSON. Well, as you know, Senator, the Congress in the 

Department of Defense war supplemental added various reporting 

requirements in advance of bringing detainees to the United States 

12 

or transferring to another country, and it is certainly Congress’ 

prerogative to request that type of thing. 

I think that the way I would answer your question is, with regard to the current population, we believe that the Authorization 

for the Use of Military Force, as informed by the laws of war, provides the adequate legal authority for the detention of the current 

population. Now, that is obviously being tested in the courts right 

now. Individually, detainee by detainee, virtually every one of them 

has brought a habeas proceeding against the Government. And I 

believe it is the case that that authority exists irrespective of where 

we hold them. 

Senator KYL. So it would extend to detention in the United 

States. 

Mr. JOHNSON. Yes. 

Senator KYL. So that it would not be necessary to seek further 

authorization from the Congress. 

Mr. JOHNSON. With regard to the current population, I believe 

that is the administration view. 

Senator KYL. If either of you wish to supplement that answer 

later, you are welcome to do so. 

Let me ask you another question, Mr. Johnson. You said that the 

Detainee Review Task Force has approved the transfer of substantially more than 50 detainees to other countries. Has the administration found countries willing to take all of these detainees approved for transfer? How many, do you think, other countries have 

expressed a willingness to take them? And if you know, how many 

of the 50-plus detainees were already approved prior to the Obama 

administration taking office on January 20th? 

Mr. JOHNSON. Senator, I know that a number had been approved 

for transfer under the process that existed when the administration 

came into office. Transfer is a matter for our Detainee Affairs Office in the Department of Defense, as well as the State Department. I am sorry, I do not have the exact numbers for you of countries willing to take detainees. 

I would add that in terms of transfer it is not simply just who 

is willing to take them. We also seek security assurances from the 

countries that are willing to accept a particular detainee so that 

they do not simply go back to a country and return to the fight. 

Senator KYL. An important point that we fully appreciate. Can 

you give us any notion—is it most, is it some, is it a few—that we 

think can be transferred both because the country will take them 

and the appropriate arrangements can be agreed to? And if either 

one of you would like to answer, but I assume this is a proper question for you. 

Mr. JOHNSON. I hesitate to speculate or make predictions so that 

I could be proven wrong later. I think that—as I noted in my statement, we are through more than half the current population. The 

current population is about 229. And I know the number that have 

been approved for transfer so far is north of 50. It is substantially 

north of 50. 

Let me add this: The population that we began with were people 

that we thought were readily available for transfer or prosecution. 

So I would not make any assumptions based on the current pace 

about what the end results will—— 

13 

Senator KYL. And I do not mean to put you on the spot here. So 

if either of you would like to supplement an answer for the record, 

you are sure welcome to do that. Thank you. 

Chairman CARDIN. Senator Feingold. 

Senator FEINGOLD. Thanks, Mr. Chairman. I am glad that you 

are holding this hearing. On an issue of this importance, and with 

these types of constitutional implications, it is critical that the Judiciary Committee stay involved. And I was glad to see a presumption in favor of using our Federal courts in the administration’s 

protocol for handling Guantanamo cases that are referred for trial. 

I want to state for the record that I disagree fundamentally with 

an amendment that became part of the Department of Defense authorization legislation last week that stated that military commissions should be the preferred forum for prosecutions of detainees. 

In my view, that has it exactly wrong. At a minimum, the presumption should be that our existing civilian and military legal 

systems are the proper venues for trying these cases, as is laid out 

in the administration’s protocol. 

But that does not answer the next question, which is: When, if 

ever, should military commissions be used? I am glad the administration supports changes to improve the procedures that will be 

used in military commission trials and that many of those changes 

are moving forward as part of defense authorization. But I remain 

concerned that the military commission process is so discredited 

that it may not be possible to fix it. And I have yet to hear a convincing argument that other options for bringing detainees to justice—the civilian Federal criminal justice system and the military 

courts martial system—are insufficient or unworkable. 

So let me start by simply asking you both why the Government 

should retain military commissions as an option at all. Mr. Kris. 

Mr. KRIS. Well, I guess sort of a four-part answer to that, Senator Feingold. It is a good question. 

The first is the point that was made earlier that military commissions do have a long tradition in our country, going back really 

in some form to the Revolutionary War. 

The second is that they prohibit, because they are tied to the law 

of war, a slightly different set of offenses, law-of-war offenses on 

the one hand and traditional Federal crimes on the other. 

The third is that there are some differences. Obviously, we do not 

yet have a final bill on the military commissions side, but if the 

administration’s positions are adopted, there will be differences 

with respect to Miranda warnings, although a voluntariness test 

would still be required, with respect to the hearsay rules, and there 

may be different statute-of-limitations requirements and rules that 

apply as well. 

And I guess finally, with respect to the application of some of 

these procedural differences and law-of-war offenses, you would 

have military judges who have some familiarity with law-of-war 

and military necessity and operations in charge of the trials. 

So those are some of the sort of operational differences that we 

think may be relevant. 

Senator FEINGOLD. I can understand some of those more than 

others. The mere fact that they have been done before does not 

overwhelm me. And I am concerned about any suggestion that miliVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
14 

tary commissions would be better because it is easier to get a conviction. You did not say that, but a couple of the things you mentioned may perhaps suggest that. All I would caution is that to 

have any legitimacy at all, this decision should not be outcomedriven. And I am not suggesting that is what you were saying, but 

it is a possible interpretation, if you would like to respond. 

Mr. KRIS. No, I think your point is a good one. The factors that 

are set forth in the protocol really boil down to the strength of the 

interest in the forum, so, for example, the identity of the victims, 

the location of the offense, that sort of thing. Efficiency, if you have 

joint trials, multiple defendants in the same locations. And then a 

third category of other factors to include an ability to sort of display or convey the full misconduct of the accused or the defendant, 

and that, again, might vary according to the type of offense that 

is within the subject matter jurisdiction of the forum. 

I agree with you that these need to be principled decisions. We 

want them to be fact-intensive, case-by-case, but we do not want 

to have a system that is or appears to be unfair or wholly resultsoriented. So I agree with that? 

Senator FEINGOLD. Mr. Johnson. 

Mr. JOHNSON. Senator, the President has reiterated that we are 

at war with al Qaeda. Military commissions, as was pointed out, 

are older than George Washington. And we believe that some offenses that constitute law-of-war offenses should be prosecuted in 

the war/military context, in military commissions. By the nature of 

the alleged conduct, offenses, conduct can violate both Title 18 as 

well as the laws of war, and there are some offenses—for example, 

offenses directed at the U.S. military or offenses committed on 

what we would call ‘‘the conventional battlefield’’—that belong in 

the law-of-war context for prosecution. Our JAGs believe that. Our 

commanders believe that. I believe that, and the administration believes that. 

So what I would urge is that we reform military commissions, we 

adopt a credible process so that we have alternatives available to 

promote national security. 

Senator FEINGOLD. I’d like to ask you about one other aspect of 

this. We all know that prior versions of military commissions have 

been roundly criticized, both at home and abroad, and I, again, appreciate the efforts to make the procedures more fair. But I remain 

concerned about how they will be perceived and how that will affect our broader counterterrorism efforts. 

Let me read you a letter sent to the President in May by three 

retired military officers. They said, ‘‘Attempts to resume military 

commission trials would perpetuate the harmful symbolism of 

Guantanamo, undermining our current terrorism efforts and 

squandering an opportunity to demonstrate the strength of the 

American system of justice.’’ 

How do you respond to that? 

Mr. KRIS. Well, I think it is very important that we have clear 

that the military commissions systems, as we are proposing to reform it, would not be some kind of second-class justice system. And 

I think it is incumbent upon us as the administration, and perhaps 

the Government as a whole, to get that message out. And I think 

a hearing like this one is an important part of that process. 

15 

We want to have a system of commissions that is and appears 

to be fair, and I think we are moving in that direction, and I hope 

that people will listen to what is going on and take a look at the 

rules that we are proposing and take comfort in them. 

Senator FEINGOLD. There has been a lot of talk lately about the 

application of Miranda rights in the battlefield context. As I understand the Government’s longstanding position under President 

Obama and President Bush alike, Miranda warnings are never permitted to interfere with American military or intelligence-gathering 

operations. 

Is that correct? And can you explain why this is really a red herring? 

Mr. KRIS. It is correct. There is no new policy with respect to the 

administration of Miranda warnings. It continues to be done and 

decided on a case-by-case basis. In actual practice, I believe the 

number is less than 1 percent of interviews are preceded by Miranda warnings. They are not used by soldiers on the battlefield, 

and they are not allowed to interfere with force protection and 

other critical aspects. 

Again, it is this case-by-case, fact-intensive judgment because 

sometimes the use of Miranda warnings can help keep open a prosecution option, and that makes us more safe, not less. 

Senator FEINGOLD. Thank you. 

Thank you, Mr. Chairman. 

Chairman CARDIN. Senator Hatch. 

Senator HATCH. Thank you, Mr. Chairman. 

I appreciate both of you and your testimony here today. Gentlemen, last week, a major deadline was missed by the Detainee Policy Task Force, and the failure to meet that deadline gives me 

some pause. I see it as an indicator that closing Guantanamo in 

less than 180 days may very well be unrealistic. The DPTF’s publishing of ‘‘an interim report’’ does nothing to dispel my concern, let 

alone the concerns of my constituents who write me daily to express their uneasiness over bringing detainees to the United 

States. 

Now, the 6-month extension for publishing the report will now 

push back the report’s due date to January 21, 2010, the day before 

the President will order the closure of Guantanamo. Now, this 

schedule for the issuance of reports and the deadline for closure of 

Guantanamo was set by the President, not by Congress. 

I certainly have a lot of respect for the job that you gentlemen 

have been tasked with, and as a member of both the Senate Judiciary Committee and the Senate Select Committee on Intelligence, I 

realize the complexities involved in this review process. But when 

a significant report outlining detainee policy going forward misses 

its deadline and cannot and will be published and presented to the 

Congress and the American public until the day before the administration shutters Guantanamo, you can see how it reflects poorly 

on the way this process has evolved. 

Now, I believe that this is a major reason why support for the 

closure of Guantanamo is waning in not only Congress but in public opinion as well. 

16 

So, today, can both of you give me your honest assessment of 

where we are in the review process? And are you confident that the 

final report will take another 6 months to complete? 

Mr. KRIS. Senator, I think I will take a crack at that. First, I 

think to begin with, it is important to distinguish between the Detainee Policy Task Force, which will be the author of the report to 

which you refer, which is really looking at the whole range of detainee policy issues going forward; and, on the other hand, the task 

force assigned to review each of the detainees at Guantanamo Bay. 

So the delay in coming up with a comprehensive detainee policy 

I do not think necessarily undermines the ability of the separate 

Guantanamo task force to do its review. And as I say, they are 

more than halfway through the 240 detainees now, and they do expect to be done with their initial review of all detainees by October 

1st. 

Senator HATCH. How many cases have you reviewed, and how 

many are left to review, do you know? If you could give me those 

numbers. 

Mr. KRIS. I do not have the exact number, but we are more than 

halfway through the 240 who were there on January 22nd, so approximately 120. And the expectation is to finish the remaining 120 

for review by October. 

Senator HATCH. What are the projected breakdowns of prosecutions by Article III courts and military commissions? 

Mr. KRIS. As I said earlier, that is a number that is impossible 

to provide at this point because we have not done all of the prosecution work-up. I can say that, as Mr. Johnson has said, substantially more than 50 have been approved for transfer and a significant number have been approved for possible prosecution. Beyond 

that, I really cannot go. 

Senator HATCH. Mr. Kris, in your prepared testimony, you stated 

that, when feasible, the Justice Department will prosecute detainees in a Federal criminal court for violations of war, and there are 

specific requirements to ensure the authenticity of evidence for use 

in Federal criminal prosecutions. One of these requirements, as you 

know, is chain of custody. There are many scenarios where the 

chain of evidence may not be documented. For example, a combatant captured in Afghanistan may have documents, pocket litter, or 

other materials in his possession that link him to a war crime or 

a criminal violation. If the ultimate goal is prosecution in Federal 

criminal court, then chain of custody must be preserved. At least, 

that is my understanding. 

What is your proposal to address the preservation of chain of 

custody so that the Government can introduce its evidence into Article III courts? 

Mr. KRIS. It is an excellent question, Senator. Obviously, chain 

of custody is a concern, and it is a concern for authenticating evidence in any forum. 

To answer your question directly, I guess what I would say is the 

protocol in the second of the three groups of factors recognizes that 

choice of forum may be influenced by legal or evidentiary problems 

that might attend the prosecution in the other jurisdiction. And as 

I was saying to Senator Feingold, there are, I think, going to be 

some differences in the rules that govern between Article III courts 

17 

and military commissions as we are proposing them. One of them, 

for example, would have to do with the admissibility of hearsay evidence, which raises a similar concern. If you have got a soldier on 

the battlefield and he is, you know, the live witness, you may not 

be able to pull him off the line, and so there may need to be some 

relaxation of those rules. 

But considerations of the sort you are identifying are part of the 

protocol and would not be dispositive, but they would be a factor 

in the thinking. 

Senator HATCH. Okay. I am sure, Mr. Kris, that a great deal of 

the evidence that will be introduced in Federal criminal prosecutions of detainees was obtained for intelligence purposes. In some 

cases, the Government may not be willing or able to produce the 

source of the evidence. Furthermore, the evidence may be the fruit 

of information obtained from foreign intelligence or foreign investigations. The disclosure of these foreign relationships could severely jeopardize intelligence-sharing opportunities in the future. 

As such, the source of the evidence is either unable or unwilling 

to testify at trial. 

If trying these cases in Federal criminal courts is the ultimate 

goal, what solutions does the DOJ propose to address hearsay evidence exclusions? Have you arrived at conclusions on that? 

Mr. KRIS. Well, with respect to hearsay—excuse me. We have a 

position that is actually quite close to the Senate Armed Services 

Committee bill, which basically requires the direct evidence, unless 

it would be impractical or it would have an adverse effect on military operations and is not in the interest of justice. So that is a different standard, say, than applies in Federal court. 

With respect to classified information, especially with the Graham-McCain amendment, which Mr. Johnson mentioned in his testimony, which is quite similar to CIPA, the Classified Information 

Procedures Act, in a way you are pointing out a challenge that exists for all prosecutions in either forum, and it is a challenge. You 

can have situations where you risk compromising sources and 

methods. There are ways around that, and CIPA is the main vehicle for dealing with those kinds of issues. But in a way, I think you 

point out the larger question here, which is that prosecution itself, 

whether in a military commission or in an Article III court, is one 

way but only one way, and not always the best way to protect national security. We are focused on protection of national security, 

and we have tried to use all of the lawful tools in the President’s 

toolbox to achieve that protection, including but not limited to prosecution. 

Senator HATCH. Mr. Chairman, my time is up. 

Chairman CARDIN. Thank you very much. 

Senator Durbin. 

Senator DURBIN. Thank you very much. And Senator Kyl is 

right. We have this ongoing debate that continues, and I would just 

say that as far as the presumption is concerned, I think the figures 

speak for themselves. The fact that over the 7 years we had three 

who were tried before military commissions and 145 in Article III 

courts is an indication to me that there was a presumption that the 

most successful line of prosecution was in the Article III court. 

18 

Let me also say, in commending my colleague from Arizona, that 

he has been part of the effort of this Committee to enlarge the terrorism laws of the United States since 9/11 that have been the 

basis for successful prosecutions, so—in Article III courts, I might 

add, so that we have created some opportunities, legal opportunities here to protect our Nation. 

Let me ask, if I can, a question or two here. There is a concern 

about the image of military commissions. It has been expressed by 

several people at the highest level. Lieutenant Colonel Darrel 

Vandeveld testified before the House Committee on the Judiciary 

recently, and he said, ‘‘I proudly went to Guantanamo to serve our 

country as a prosecutor charged with bringing to justice detainees 

President George Bush had said were ‘the worst of the worst.’ But 

I eventually left Guantanamo,’’ the colonel said, ‘‘after concluding 

that I could not ethically or legally prosecute the assigned case. I 

became the seventh military prosecutor at Guantanamo to resign 

because I could not ethically or legally prosecute the defendant 

within the military commission system at Guantanamo.’’ 

Similarly, Rear Admiral John Hudson and Brigadier General 

James Cullen said, ‘‘The commission system lacks domestic and 

international credibility, and it has shown itself vulnerable to unlawful command influence, manipulation, and political pressure.’’ 

Former Secretary of State Colin Powell said, ‘‘We have shaken 

the belief that the world had in America’s justice system by keeping a place like Guantanamo open and creating things like military 

commissions. We don’t need it, and it is causing us far more damage than any good we can get for it.’’ 

So can we repair the image of military commissions to the point 

where we can say to the world with credibility that we are now operating under established standards of justice and jurisprudence 

and that it is clearly a different approach than has been used in 

the past? 

Mr. KRIS. Yes. The President believes we can. The administration believes we can. Obviously the President had concerns about 

the Military Commissions Act, the prior system, or the existing system of military commissions. The initial action there was to take 

five important rules changes that he could do without legislation, 

and those have been made. I can go over them if you want. Mr. 

Johnson knows them even better. But they were important. They 

dealt with things like hearsay, choice of counsel, and that sort of 

thing, and obviously the cruel, inhuman, and degrading treatment 

standard for the admissibility of confessions. 

The next step is the bill that is now pending in Congress reported out by the Senate Armed Services Committee, and we have 

a great deal of agreement with that bill. There are a few areas 

where we have some disagreements. But if the administration gets 

the proposals that it is putting forward, I think the military commission system would be amply fair, and it would be a system that 

would not be second class. And I think eventually the public perception will catch up with the reality. 

Mr. JOHNSON. Senator, if I could, as the Department of Defense 

lawyer, I think one of the problems that we have had is that the 

American public, by and large, is just simply unfamiliar with the 

concept. You cannot turn on TV and watch a military commissions 

19 

hour-long show, like ‘‘Law and Order’’ or something of that nature. 

But I know from personal experience that our JAGs cherish notions 

of justice, the Constitution, just like Assistant U.S. Attorneys do, 

and many of our prosecutors at the Office of Military Commissions 

are reservists who are AUSAs in their other life. Our JAGs are 

highly qualified lawyers. The JAG sitting behind me who has 

helped me in this effort is a Rhodes scholar and was on the Harvard Law Review with the President. I think he got better grades. 

The JAGs all—let me just cite for you one incident. When we 

started looking at the rules changes, I got around in a room at the 

Pentagon with all the JAGs familiar with the process, prosecutors 

and defense, and said, ‘‘Guys, what can we do to reform military 

commissions? ’’ And the first thing right off the bat was, ‘‘Let’s get 

rid of the possibility, codified in law, for admitting statements that 

were taken as a result of cruel, inhuman, and degrading treatment.’’ 

There was almost complete unanimity in the JAG community to 

do that because that possibility alone did so much to cost military 

commissions in terms of credibility and perceptions about the fairness of the process. And the rules change, I am happy to say, did 

away with that, and the Senate bill itself does the same thing. So 

there is an aspect of, you know, developing here step by step, but 

I think we can get there. 

Senator DURBIN. Let me just say that I do not question the professionalism or integrity of those who were involved in the Judge 

Advocate Generals’ operations. I have worked with many of them, 

and I respect them very, very much. They were put at a distinct 

disadvantage when the commissions were initially created by Presidential fiat and not by congressional activity, not by the ordinary 

course of law. And I think the subsequent Supreme Court decisions 

in Hamdan and Boumediene also raised a question as to whether 

or not they were conceived properly. I hope they can be reconceived 

in a much fairer fashion. 

I join with my colleague from Wisconsin in saying that I would 

want to be shown in opposition to what passed last week, this socalled preference in our sense of the Senate language for going to 

commissions. I think that the record, as Senator Whitehouse has 

said on the floor, speaks for itself in terms of the Department of 

Justice. 

I know I just have a few seconds left here, but I have to tell you 

that there is one case I am familiar with through a pro bono lawyer 

in Chicago of an individual arrested at age 19 and detained at 

Guantanamo. A reward was given to those who turned him over, 

and after 6 years of incarceration, he was given notice last year 

that our Government was not going to proceed with any charges 

against him and he could be released at any time. Of course, he 

still sits in Guantanamo because there is no place to release him. 

They are working to find a place for his release. 

So the notion that many people have about who is there and why 

they are being held I think sometimes conflicts with reality. There 

are dangerous people who need to be tried before courts, or commissions for that matter, and there are some who fall in a category—I would like to close by asking: What do we do with those 

20 

who cannot be prosecuted but still pose a threat? What is their disposition? Where do they end up when Guantanamo is closed? 

Mr. JOHNSON. As the President said in his National Archives 

speech on May 21st, there may be at the end of our review process 

that category of people who, for reasons of national security, safety 

of the American people, we have to continue to detain. And for that 

category of people, what the administration believes is that there 

should be some form of periodic review. Whether that is every 6 

months or 12 months, we are sorting that through now. 

But because of the nature of the conflict and because there is not 

going to be a readily identifiable end of the conflict, we believe that 

if we prevail in a habeas litigation, we should not just throw away 

the key and keep the person there indefinitely. There ought to be 

some form of periodic review, and we are developing a system and 

a process right now for that segment of the population at Guantanamo that we may end up with. 

Senator DURBIN. Thank you, Mr. Chairman. 

Chairman CARDIN. Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Well, I think one of the problems we have had from my perspective, having served on the Armed Services Committee and the Judiciary Committee, throughout this entire process is an unfair criticism of the military and what we have been doing. I think this idea 

that somehow the world is condemning our procedures for handling 

enemy combatants is not legitimate. I think the criticism is coming 

from Congress. A lot of it was, frankly, generated during last year’s 

campaign. And so much of that occurred that I guess anybody 

might think that there is a constant series of abuses going on at 

Guantanamo. But as I understand the facts, not one single case of 

waterboarding occurred there. They occurred in intelligence, not 

the military. 

As to the Inspector General’s review, I believe they concluded, 

Mr. Johnson, that one case of torture occurred because of a series 

of techniques were used against one prisoner, that any one technique alone was not torture, but all together amounted to torture. 

So a review has been—so that is the extent of the military’s misbehavior, apparently, as found there. And it is just so sad to me 

that we now are in a position where we have got a perfectly safe, 

well-run place at Guantanamo, and somehow our own Members of 

Congress have created a perception that all wild abuses have been 

occurring systematically there. I do not believe that is true. I do 

not believe that is fair. 

With regard to trying these cases in the United States, when you 

try one, you find out how hard it is. In 2006, the death penalty 

trial of Zacarias Moussaoui was tried in Alexandria. Afterwards, 

the mayor said, ‘‘We would be absolutely opposed to relocating 

Guantanamo prisoners to Alexandria. We will do everything in our 

power to lobby the President, the Governor, the Congress, and everyone else to stop it. We had this experience. It was unpleasant.’’ 

City officials noted that there were military people with heavily 

armed agents, rooftop snipers, bomb-sniffing dogs, blocked streets, 

identification checks, and fleets of television trucks around. So it 

is not such an easy thing to try one of these big cases in a civilian 

court in a civilian city. It is just not. 

21 

Sixty of these individuals have already returned to the battlefield 

that have been released. Senator Durbin says the 19-year-old— 

maybe they were not able to try him, but presumably he was detained as an unlawful combatant, and that means he is historically 

and lawfully detained until the war is over. 

I do not think these military commissions have been so discredited. I have seen nothing is more righteous than a JAG officer motivated on an issue. They will stand up to anybody. I have seen 

them shred a colonel, one of my friends, one time, and I held a JAG 

slot for 2 years, although I was not trained at Charlottesville, in 

an Army Reserve unit. And I have great confidence in the fidelity 

of these officers, and they have even, I am sure, objected to some 

of these procedures, as he said, because they have extremely high 

standards about how these matters should be handled. 

Could I ask you some brief, simple questions? I hope you will not 

talk too long, because I am just trying to get a perspective. Maybe 

the Department of Justice would be first. If there is a terrorist attack, a terrorist captured in Afghanistan with bombs, provable to 

be planned to be used against an American base, is that the kind 

of case that we are talking about being tried in Federal court? 

Mr. KRIS. The answer is it might be, but I think it is probably 

more likely that that case would result in detention in a theater 

detention facility. 

Senator SESSIONS. And what statute is violated? How is there jurisdiction in the United States to try such a case in a civilian 

court? 

Mr. KRIS. Well, as was mentioned earlier, I think, thanks to Senator Kyl and others in Congress, there is quite a large number of 

Federal criminal statutes that apply extraterritorially, including 

conspiracy to kill Americans and terrorist acts against Americans 

abroad. So there is, I think, quite a lot of jurisdiction. That is really 

separate from the question whether as a policy matter or tactical 

matter it would make sense in any particular case to bring a criminal prosecution, even if you could bring one. 

Senator SESSIONS. And the venue? It used to be where you first 

bring the individual. What if you bring them to Guantanamo? Can 

they be moved and tried in Illinois? 

Mr. KRIS. The venue statute essentially distinguishes between— 

when you do not have an otherwise basis for venue because of a 

victim or an attack in the United States. For extraterritorial activities, it really distinguishes between situations in which the indictment is returned before the defendant arrives, where the District 

of Columbia is a viable venue, or where you do not have that, 

where the defendant is first brought. I think GTMO does not count 

because it is not within the jurisdiction of any Article III court 

right now, not in a district. 

Senator SESSIONS. Now, with regard, Mr. Johnson, to the Miranda warnings, well, this can be problematic. I mean, on the battlefield, we are in a state of war. We are dropping bombs on people 

right now in Afghanistan and Iraq who threaten us, and we have 

a lawful right to do so. But the key thing we learned from the 9/ 

11 Commission was good intelligence is critical. It is not like the 

average American burglar or drug dealer. The critical nature of intelligence saves lives on the battlefield. 

22 

Don’t you think that if we expand and continue to provide more 

and more Miranda warnings, we are, in fact, going to diminish intelligence because anybody would not talk if they are told that up 

front? And when you say Miranda warnings, do you tell them they 

are entitled to a lawyer also? 

Mr. JOHNSON. Senator, let me answer your question in two ways, 

if I can. 

First, the current version of the Senate bill expressly excludes 

from military commissions Article 31 of the UCMJ, which is the 

Miranda warnings requirements, in terms of admissibility of evidence. 

The second point I will make is a letter that I—— 

Senator SESSIONS. Well, let us slow down. Why is it being given 

then? 

Mr. JOHNSON. Well, Senator, I understand that there is this perception out there that the United States military might be reading 

detainees or people we capture Miranda warnings, and that is not 

true. I wrote a letter to the Chairman of the House Armed Services 

Committee last week on this very issue, and if I could, I would just 

like to read you the first three sentences of the letter. 

Senator SESSIONS. But the FBI is the one that is doing then, our 

Federal and Department of Justice investigators, not DOD? 

Mr. JOHNSON. As Mr. Kris made clear, the FBI in a very, very 

few cases, in order to not foreclose the avenue of prosecution, has 

done that. But the United States military is not reading Miranda 

warnings to people we capture. That is not our—— 

Senator SESSIONS. Well, isn’t there a danger—and I will ask Mr. 

Kris about it. But isn’t there a danger, if the presumption is that 

those cases would be tried in civilian court, that the evidence or the 

confessions could be suppressed if they were not given a Miranda 

warning? 

Mr. JOHNSON. Well, Mr. Kris can answer as to Federal prosecutions. Military commissions, that will not be a requirement. 

Mr. KRIS. I guess I would say first, to echo what I said earlier, 

of the thousands of interviews conducted by the FBI in Afghanistan, Miranda warnings have been given in less than 1 percent of 

the cases, and this is the practice, giving Miranda in a very small 

number of cases like this, that stands—— 

Senator SESSIONS. My time is running, but isn’t this then—if you 

are going to try them in civilian courts, aren’t we now in a situation where more Miranda warnings must be given if we are going 

to proceed wisely? 

Mr. KRIS. I think you need—to proceed wisely, you need to approach these threats and these problems, these national security 

problems, one at a time and figure out what is the best way to defeat this problem. And it may vary from case to case. Sometimes 

you need a hammer, sometimes you need a screwdriver. You use 

whatever tool is right for the particular situation. 

If you give Miranda warnings in a case, it keeps the option of 

criminal prosecution in an Article III court open. There may be 

other ways. There are exceptions to Miranda for public safety 

under the Quarles case from the Supreme Court, so it is not as if 

you always need to give Miranda warnings. But if you do, it can 

keep the option open. On the other hand, there may be costs to 

23 

doing so. That balance has to be struck one case at a time by the 

professionals who have the ground truth of one particular problem. 

Senator SESSIONS. Well, my time is up, but I would just say that 

is not a very clear answer, I do not think. 

Chairman CARDIN. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman, and thank you for 

this hearing. 

Just to continue on Senator Sessions’ point on mirandizing, I 

think you have said that you look at these matters case by case 

and you make a very specific fact-intensive determination based on 

the particular circumstances of each case, correct? 

Mr. KRIS. That is essentially right. I think that is the way it 

should be done, anyway. 

Senator WHITEHOUSE. That makes sense, doesn’t it? 

Mr. KRIS. I think so. 

Senator WHITEHOUSE. Are there not indeed cases in which 

mirandizing a detainee might actually be part of an optimal interrogation strategy for that particular detainee? 

Mr. KRIS. Well, it might be, and that would be something that 

I as a mere lawyer would want to defer to the interrogation experts. 

Senator WHITEHOUSE. But certainly since Congress is not interrogation experts, it would be a mistake for us to foreclose your ability to apply Miranda warnings where the case-by-case and fact-intensive determination made by the professionals suggested that it 

was a good idea? 

Mr. KRIS. I think that is the absolutely critical point, Senator, 

that we have a range of different remedies and tools that we can 

use, and I think we are at our best, at our most effective and 

strongest when we have all of the options available to us and we 

do not have artificial rules sort of adopted a priori that rule out 

certain techniques and tools in certain categories of cases. 

Senator WHITEHOUSE. As I recall, one of the most significant interrogations that has been done in terms of productivity was the 

interrogation of Abu Jandal, and the 302s from that investigation 

I believe are still being used in cases to this day, and that was accomplished after Miranda warnings, was it not? 

Mr. KRIS. I think that is correct, and I think more generally, depending on the circumstances, a very, very good interrogator can 

often get tremendously valuable information, you know, depending 

on what he knows about the detainee and language and cultural 

issues. So it is a very complicated business. But the goal, again, is 

to keep all the options on the table. 

And I should say one other thing, I guess, that may not be obvious, but to the extent that we do not have a Miranda requirement 

in a military commission but we do have, let’s say, a voluntariness 

test, I am not suggesting that we would start prophylactically giving Miranda warnings across the board by any means. But if Miranda warnings are given, that does not preclude the admission of 

the statement and the prosecution in a military commission. Indeed, it may be helpful there as well as in an Article III court. 

Senator WHITEHOUSE. And I share Senator Sessions’ high opinion of the JAG Corps. Indeed, for those of us who were distressed 

24 

and dismayed by what I consider to be shabby and second-rate 

work that came out of the Office of Legal Counsel in support of the 

torture program, it was the JAGs from every single one of the military services who stood up and pushed back and said, ‘‘This is 

wrong. We know this material. This is wrong.’’ 

Indeed, so did the State Department lawyers. I believe the only 

organization of Government that did not push back was the CIA, 

and their lawyers have their own consciences to hold to account for 

that. But, clearly, the JAG officers, in some cases at considerable 

peril to their personal careers, did the right thing. So I think that 

they are a very good measure of whether or not the military commissions are working. And I think the fact that over and over and 

over again career prosecutors resigned rather than pursue prosecutions under the military commissions as they previously existed is 

a sign that something really was wrong with those military commissions, that it has not just been invented by Members of Congress. And, certainly, Colin Powell has never been a Member of 

Congress, and he is a person who I think America has confidence 

in on national security matters. And he said that we have shaken 

the belief the world had in America’s justice system by keeping a 

place like Guantanamo open and creating things like the military 

commission. And he obviously meant as it was then run, and I 

wish you well in trying to repair it. His view is we do not need it 

and it is causing us far more damage than any good we get for it. 

And I think it would be important as you go forward to make sure 

you stay out of the chatter strips in terms of doing this right, because our credibility has already been burned once in this effort. 

Could I ask you how many terrorists have to date been convicted 

before military commissions since 9/11? 

Mr. JOHNSON. Three. 

Senator WHITEHOUSE. Three. 

Mr. JOHNSON. In 7 years. 

Senator WHITEHOUSE. In 7 years. 

Mr. JOHNSON. That is not a great track record. 

Senator WHITEHOUSE. That is not a great track record. 

Mr. JOHNSON. We are determined to have a more efficient system. 

Senator WHITEHOUSE. And the information that I had when I 

spoke on the Senate floor with respect to the preference is that the 

number of people associated with terrorism who have been convicted and are now serving lengthy Federal prison sentences numbers around 350 or so. Is that correct? 

Mr. KRIS. That sounds certainly—that is at least close to the 

number, if it is not the exact number. I think there are more than 

200 persons in the custody of the Bureau of Prisons with a terrorism nexus of one sort or another. 

Senator WHITEHOUSE. My information was that there are 355 inmates in Federal prison now who have been successfully charged, 

prosecuted, convicted, and are serving lengthy sentences as a result 

of their history or connection with international or domestic terrorism. The domestic terrorism number may be the 200, and the 

others are international terrorism. 

The last thing that I will mention to you, I know attorneys in my 

home State who have represented people in Guantanamo. These 

25 

are attorneys in a corporate law firm. They have no particular axe 

to grind. In fact, if anything, they probably err on the side of a conservative view of the world and a kind of orderly, established view 

of the world. The way in which they have been treated as advocates for people at Guantanamo has them livid: denials of access, 

repeated inconveniences, unnecessary hassle and bother, as they 

try to go about what for them is pro bono activity. 

I would urge you to take a look at the way in which the counsel 

for folks at Guantanamo are treated. These are good Americans 

who are trying to do the right thing. They aspire to the highest 

standards and principles of their legal profession. And for some 

reason or other, they come away feeling very disturbed by the way 

they have been treated by their own Government. 

Mr. JOHNSON. Senator, since I come from a corporate law firm, 

they call me directly. 

Senator WHITEHOUSE. You understand. 

Mr. JOHNSON. And they are not shy about that, so it is something I am very sensitive to. 

Senator WHITEHOUSE. Thank you, Chairman. 

Chairman CARDIN. Senator Hatch has a follow-up question. 

Senator HATCH. Yes, I have been concerned about this Miranda 

matter, and while I know both of you gentlemen stated that Miranda warnings should not be provided to detainees captured on 

the battlefield, that does not address the fact that there will be 

some Miranda problems, especially if Article III courts, you know, 

are to be the preferred venue for prosecution. 

Now, I staunchly oppose any notion that troops in the middle of 

the battlefield be required to administer warnings to capture combatants. But can both of you or either of you give me your definition of the nature and scope of what is a battlefield in the context 

of the current conflict? Let me stop there, and then I have one 

other question I would like to ask. 

Mr. JOHNSON. Senator, I can offer to the Committee for the 

record a letter that I wrote to the Chairman of the House Armed 

Services Committee last week on this issue. What I can say to you 

is that the U.S. military is not providing Miranda warnings to people that they capture. That is not their job, and I would have a lot 

of three- and four-star general clients all over me if I even remotely 

began to suggest that our troops do that. And the only circumstance under which that happens is where the law enforcement 

prosecution option is one that is being considered and we have exhausted military intelligence collection options with respect to that 

particular individual. 

As to your question about what constitutes the battlefield, obviously given the nature of this conflict, there is no easy answer to 

that question, and anybody who tried to give you an easy answer 

to that question I suspect would be overlooking a lot of complexity. 

I can tell you that the mission of the military is not evidence collection. It is to capture and engage the enemy. 

Senator HATCH. Okay. Any—did you want to say something? 

Mr. KRIS. Well, I would just say more generally, Senator, it is 

important to distinguish between rules of admissibility in prosecution for, whether it be a commission or an Article III court, and primary conduct on the ground. When it comes to the primary conVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
26 

duct, the paramount concern always has to be safety and force protection and intelligence collection. It may be that some statements 

in some situations may not be admissible, but you would not want 

to compromise the safety of our troops on the line in order to preserve that for down the road. 

Senator HATCH. Well, I agree with that, but any first-year law 

student will tell you that Miranda is triggered when a suspect is 

in custody and is asked questions that will elicit a response that 

may develop inculpatory statements or evidence. 

Now, given that some of these detainees have been in custody 

since 2002, what is being used to evaluate the veracity of previous 

statements they have made since being in custody? And how does 

the Government plan to overcome the admissibility issue of these 

statements in the Article III courts? 

Mr. KRIS. Well, again, we may or may not be able to overcome 

those admissibility concerns in any particular case, and if we cannot, that may be a factor that bears on forum choice. I cannot say 

that in every case every statement will be admissible under whatever standard ends up applying either in an Article III court or in 

a military commission. 

Senator HATCH. Would you be forced to let them go free then? 

Mr. KRIS. No. I think you have to consider other evidence that 

is available against them. Cases do not depend entirely on the 

statements of these people. You know, there can be other evidence, 

and prosecutors are used to working around those kinds of concerns when evidence is suppressed in any kind of environment. So 

you just have to work through each case one at a time and figure 

out what you can do. 

Senator HATCH. Well, thank you. 

Thank you, Mr. Chairman, for letting me ask those questions. 

Chairman CARDIN. Absolutely. 

Let me just get the numbers straight and a couple dates. You are 

indicating that you will complete the review of the detainees at 

Guantanamo Bay this fall. 

Mr. KRIS. That is the expectation, yes. 

Mr. JOHNSON. Yes. 

Chairman CARDIN. And that to date, somewhere significantly 

higher than 50 out of the 240 you anticipate transferring to other 

countries or relocating. 

Mr. KRIS. Substantially more than 50 have been approved for 

transfer. That is right. 

Chairman CARDIN. Already approved. That is right. I am sorry. 

And that there is a significant number that you are already pursuing Article III prosecution, criminal prosecution. 

Mr. KRIS. Well, they have been referred for evaluation by DOJ 

and DOD prosecutors jointly under that protocol. 

Chairman CARDIN. So it could Article III or it could be military 

commissions. 

Mr. KRIS. Or I guess in some cases we might conclude ultimately 

it cannot be prosecuted and it would get thrown back, but essentially yes. 

Chairman CARDIN. Has there been any determinations yet of 

those that will be recommended for indefinite detention? 

27 

Mr. KRIS. No. There is no detainee who has been put in that fifth 

category. 

Chairman CARDIN. Will the decision to put someone in the fifth 

category also be made by the Attorney General in consultation with 

the Secretary of Defense? 

Mr. KRIS. That is not an issue that is covered by this protocol. 

I think that is probably a broader Cabinet-level, principal-level, or 

Presidential decision that would not necessarily be just confined to 

the two of those, those two particular—— 

Chairman CARDIN. So that decision has yet to be made other 

than the President’s statements that there would be due process 

review of individuals placed in this category. 

Mr. KRIS. Yes. I mean, it is conditional, if we end up with people 

in that category. 

Chairman CARDIN. If we end up. As I understand it, you recommended that the military commission bill, Senate bill, be 

amended to include a sunset provision. Could you explain why you 

believe there should be a sunset provision in this? 

Mr. KRIS. Well, the main reason, I guess, is that traditionally 

military commissions were used in the context of a particular conflict. This particular conflict may be unlike most others, if not all 

others, that we have dealt with, with respect to how long it may 

endure. And so if you tie a commission to the duration of the conflict but you now have a relatively open-ended conflict, it made 

sense to us that after some number of years, Congress come back 

and take a fresh look and see whether we have learned something, 

whether things need to be changed. That is really, I think, the 

main thinking behind that. 

Chairman CARDIN. I generally support sunset provisions, but it 

seems to me that we do want to get a process for military commissions in place with some degree of confidence and predictability. 

Mr. KRIS. That is a fair point. 

Chairman CARDIN. If there is no longer a need in regards to this 

particular conflict to continue military commissions, your recommendation would be to allow the sunset to take place? 

Mr. KRIS. I do not necessarily want to go that far. All I am really 

saying on behalf of the administration here—this is not just me— 

is that a sunset is a mechanism that would compel and allow Congress to look again at commissions, see maybe they should be continued, maybe they should not be; maybe they should be reformed 

in some way. I think we are going to learn things going forward 

here, and after a certain number of years, it may be appropriate 

for Congress to take a second look. But I would not want to prejudge any particular outcome at that point. It would really depend 

on what we find. 

Chairman CARDIN. Well, as you go forward, we would like you 

to keep the Judiciary Committee informed as to the numbers that 

are likely to be referred for prosecution, both Article III and military commissions, and what procedures are being used in the event 

that you will be determining people need indefinite detention. Obviously, I know you are going to have to submit a plan to Congress 

as to where those individuals will be maintained if there is no 

Guantanamo Bay. 

Senator Kyl. 

28 

Senator KYL. Thank you. 

I meant to ask you, and I understand Senator Hatch may have 

asked you, the question about whether given the fact that we are 

going to have now a presumption for Article III jurisdiction or 

trials, it would not necessarily increase the situations in which Miranda warnings are given. Now, if I misstate this tell me, but my 

understanding was that the answer was, well, the case-by-case 

analysis in any event does not occur until after whatever questioning by the military intelligence or other related departments or 

agencies might be. 

If that is true, wouldn’t this—if that is true, even though you can 

have an Article III trial with testimony admissible despite no Miranda warning, it makes it much more difficult, I believe, and, 

therefore doesn’t that diminish the number of cases in which the 

presumption could result in an Article III court trial? That question 

got kind of convoluted, but I think if you want to restate your understanding of it, that is fine. 

Mr. KRIS. I think I understand you. It is certainly the case, I 

think, as Mr. Johnson said, that we need to take care of immediate 

intelligence and force protection first. 

Senator KYL. Right. 

Mr. KRIS. Nobody wants to sacrifice the safety of our troops. 

Senator KYL. Right. 

Mr. KRIS. The second is I think we need to be strategic about 

this, but, you know, if we find that we have information that is 

very valuable and inculpatory, but it was not preceded by Miranda 

warnings, then obviously that will be a factor. 

Actually what outcome will follow from that in any particular 

case would depend—and I guess this is the theme I keep returning 

to over and over again—on all of the facts of the case—— 

Senator KYL. Right, but let me just ask you—— 

Mr. KRIS [continuing]. But it will—yes? 

Senator KYL. One of the key facts will be whether a Miranda 

warning was given, because that will have a lot to do with whether 

evidence is admissible. Is that not correct? I will address my questions to either one of you. 

Mr. KRIS. Go ahead. I thought you were talking to him. 

Senator KYL. Well, I am sorry. I kind of was. But whichever one 

of you wants to answer is fine with me. The question is—well, let 

us do it in order. 

Is it true that in order to get an Article III prosecution, it is a 

whole lot better to have a Miranda warning if you are going to rely 

on statements given by the defendant? 

Mr. KRIS. Yes, it will be better—of course, there are exceptions, 

like the public safety exception is important, too. But I take your 

basic point, yes. 

Senator KYL. Yes, Okay. Now, is the presumption for an Article 

III trial, therefore, going to override what I heard you to say was 

the preeminent concern, which is that whatever battlefield intelligence questioning needs to occur will occur first, without regard 

to how the case is ultimately going to be disposed of? 

Mr. KRIS. If I understand you, I think the answer is clearly not. 

We would want to gather intelligence and protect our troops as the 

paramount concern and then see what we can do after that. 

29 

Senator KYL. Right. So if there is an order of hierarchy here, the 

first value would be seek whatever information you need to in the 

beginning to protect the troops and gather important intelligence. 

Second now is a change in the hierarchy of values. After that, the 

next presumption is that the case should be an Article III case if 

possible. 

Mr. KRIS. Again, I think I understand where you are going. My 

only quarrel with this is it starts to become a little too rigid for 

what I think is the varied and complex ground truth that we encounter out there. 

The way I would put it is we are interested in protecting national 

security using whatever tool is best for the situation, and that will 

vary quite a lot. There are some principles I can state, and the one 

we talked about earlier about force protection and immediate intelligence gathering. But I think it is very dangerous to start adopting 

these abstract principles too much in advance because the reality 

is more messy than that. 

Senator KYL. I understand that, but what we are getting at here 

is it is going to be really hard to get an Article III prosecution if 

you do not give Miranda warnings. And if the presumption is that 

the cases are going to be Article III cases, not military commissions, then by definition you are going to have to have given Miranda warnings in most of them. And if that is the case, then that 

directly conflicts with the first priority, which is getting good military intelligence, because once you give a Miranda warning, you 

are probably not going to get a whole lot, at least in most cases. 

So doesn’t this change in presumption potentially work its way 

up the chain and conflict with the first priority, which is to get 

military intelligence? 

Mr. JOHNSON. Senator, let me try to answer that by reading to 

you a portion of the protocol that has been worked out between 

DOJ and DOD. 

‘‘There is a presumption that, where feasible, referred cases will 

be prosecuted in an Article III court in keeping with traditional 

principles of Federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there.’’ 

And then we go on through three sets of factors to evaluate with 

each case. I will just read one of the three sets: ‘‘Strength of Interest. The factors to be considered here are the nature of the offenses 

to be charged, or any pending charges, the nature and the gravity 

of the conduct underlying the offenses, the identity of victims of the 

offense, the location in which the offense occurred, the location and 

context in which the individual was apprehended, and the manner 

in which the case was investigated and evidence gathered, including the investigating entities.’’ 

And the other two sets of factors sort of go on in a similar vein. 

Senator KYL. So isn’t it likely, though, that if there is not a 

change in procedure in the original intelligence gathering, whether 

the questioning is by the military or the intelligence services, CIA 

or whoever it might be, if they are not routinely giving Miranda 

warnings—and I gather they would not be—then even though there 

may be a presumption to try to get prosecutable cases into Article 

III courts, the reality is that without Miranda warnings having 

30 

been given in most cases, the presumption is probably going to be 

overridden on that factor alone in many, in perhaps the majority 

of cases? 

Mr. JOHNSON. I would hesitate to try to predict how the cases are 

going to shake out in response to your question. I do know that this 

protocol was worked out with sufficient flexibility to take account 

of that and other issues so that we have both avenues of prosecution available for dealing with international terrorists. 

Senator KYL. Yes. And, by the way, I think everybody is in favor 

of having both avenues available, and I am not arguing with the 

priorities here and so on. But I am having a little trouble understanding how you could get to the situation where you have a lot 

of military commissions as opposed to—excuse me, a lot of Article 

III trials as opposed to military commissions if, in fact, there is not 

a fairly early Miranda warning given in this situation? 

Mr. KRIS. I guess two things. One, if you have a situation in 

which the guy does not talk, you do not mirandize him but he just 

does not talk at all, but you have got plenty of other evidence, you 

have got him on video or you have got eyewitnesses or whatever, 

there may be a situation where the statements do not obviously 

make any difference. 

The other is while we do want to be strategic about this and we 

try to sort of anticipate the endgame of the process at the earliest 

possible stage—that is only sensible—I think the concern you are 

getting at, and I think it is a fair one, is you do not want the tail 

to end up wagging the dog. 

And I do think that is a legitimate concern, but I think we have 

enough flexibility under this protocol to take that into account and 

guard against it. 

Senator KYL. If I could just suggest, in the interest of time 

here—we have another panel we want to get to—anything else you 

would like to add to the record that further clarifies this, if you 

think it is necessary, we would be happy to receive it, because I 

think it is an interesting question that is raised, and we could perhaps answer some questions that our colleagues might have about 

this if there is anything else that you want to supplement the 

record with. And I thank you both for your testimony. 

Chairman CARDIN. I thank Senator Kyl for that comment. I concur. Again, I request that you keep us informed, and if there is 

other information you believe we should have to be part of our 

record, please let us know. I expect this will not be the last hearing 

that we will be having on this subject. This is an evolving issue 

and one which is certainly challenging to the Department of Justice 

and the Department of Defense, and we thank both of you for your 

service and for your testimony here. 

Mr. KRIS. Thank you. 

Mr. JOHNSON. Thank you. 

Chairman CARDIN. We will now turn to our second panel. Let me 

introduce the second panel as they come forward. 

First, we have David Laufman. Mr. Laufman is a former Assistant U.S. Attorney and chief of staff to the Deputy Attorney General, now serves as partner with Kelley Drye’s white-collar crime 

and litigation practice group. Mr. Laufman served as an Assistant 

U.S. Attorney for the Eastern District of Virginia where he specialVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
31 

ized in prosecuting terrorism, espionage, and other national security cases. In 2005, he served as the lead trial counsel in the Government’s successful prosecution of Ahmad Omar Abu Ali known as 

the ‘‘Virginia jihad’’ case. This case involved an American citizen 

who was convicted of providing material support and resources to 

al Qaeda, conspiring to assassinate the President of the United 

States, conspiring to hijack and destroy aircraft, and other charges, 

and he was just recently, I think yesterday, sentenced to life imprisonment. 

Our second witness is Deborah Pearlstein. She joined the Woodrow Wilson School for Public and International Affairs at Princeton 

University in 2007 as an assistant research scholar in the law and 

public affairs program. From 2003 to 2006, Ms. Pearlstein served 

as the founding director of law and security programs at Human 

Rights First, where she led the organization’s efforts in research, 

litigation, and advocacy surrounding U.S. detention and interrogation operations. Among other projects, she led the organization’s 

first monitoring mission to Guantanamo Bay, prepared a series of 

amicus curiae briefs to the United States Supreme Court, and has 

co-authored multiple reports on the human rights impact of U.S. 

national security policy. She was appointed in 2009 to the American Bar Association Advisory Committee on Law and National Security. 

And our third witness is Michael Edney. Mr. Edney is counsel to 

the Washington, D.C., office of Gibson Dunn & Crutcher. From 

2007 to 2009, Mr. Edney was a White House legal adviser to President Bush’s National Security Council. In that capacity, he assisted 

in coordinating the administration’s response to national security 

legal issues and controversies. His principal focus was national security-related litigation and congressional oversight. Mr. Edney 

previously worked in the Justice Department Office of Legal Counsel. 

We welcome all three of you to the Committee, and we appreciate 

very much your willingness to testify. It is the tradition of our 

Committee, if you would please rise, I will administer the oath. Do 

you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. LAUFMAN. I do. 

Ms. PEARLSTEIN. I do. 

Mr. EDNEY. I do. 

Chairman CARDIN. Thank you very much. Please have a seat. 

Mr. Laufman, we will start with you. 

STATEMENT DAVID H. LAUFMAN, PARTNER, KELLEY DRYE & 

WARREN LLP, WASHINGTON, D.C. 

Mr. LAUFMAN. Thank you, Mr. Chairman, thank you, Senator 

Kyl. Thank you for inviting me to testify here today. 

Yesterday morning, in an Alexandria, Virginia, courtroom only a 

few miles from here, the final act played out in a terrorism case 

that embodies many of the issues now before this Subcommittee. 

In the case of United States v. Ahmed Omar Abu Ali, U.S. District 

Court Judge Gerald Bruce Lee increased the defendant’s sentence 

from 30 years to life in prison for providing material support to al 

32 

Qaeda, conspiracy to hijack and destroy civilian aircraft, conspiracy 

to assassinate the President, and other crimes. Abu Ali will now be 

transported back to the administrative supermax in Florence, Colorado, where he is serving his sentence under highly restrictive conditions of confinement. 

Mr. Chairman, prosecutors and former prosecutors love to talk 

about their big case, but the Abu Ali case is a prime example of 

both the unique challenges of bringing terrorism cases in the criminal justice system and how those challenges can be overcome. And 

in this debate about alternatives for prosecuting terrorists, that 

case is highly instructive. 

From a homeland security standpoint, Abu Ali was our worst 

nightmare. Born and raised in the United States, fluent in Arabic, 

highly intelligent, he joined an al Qaeda cell in Saudi Arabia and 

plotted to commit terrorist acts inside the United States upon his 

return. Because of the obstacles to criminal prosecution, Abu Ali 

was almost designated as an enemy combatant. The Government’s 

key evidence consisted of confessions obtained by foreign security 

officers in a country with a problematic human rights record, which 

the defendant claimed were the result of torture. And the physical 

evidence tying Abu Ali to the al Qaeda cell had been seized by 

Saudi security officers and was located in Saudi Arabia. 

To prove the Government’s case and to rebut Abu Ali’s claims of 

torture, which were fabricated, it was essential to obtain the testimony of Saudi security officers, and the Saudi Government had 

never in its history permitted its officers to testify in a criminal 

proceeding outside Saudi Arabia—or even inside Saudi Arabia. 

The intelligence community possessed information vital to both 

the Government’s case in chief and the repudiation of Abu Ali’s torture claims, but initially was unwilling to allow the use of that information in a criminal proceeding. 

These challenges were all overcome through unprecedented foreign cooperation, resourceful prosecutors and agents, a court willing to apply well-settled jurisprudence to novel facts, and an intelligence agency willing to meet prosecutors halfway. And what the 

Abu Ali case and numerous other cases affirm is the proven ability 

of Federal courts to resolve the most challenging procedural and 

evidentiary issues presented by terrorism cases without compromising sensitive intelligence sources and methods or the fundamental due process rights of defendants. 

That record of judicial achievement is well documented in the 

2009 update to the Human Rights First study, ‘‘In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts,’’ which 

was released last week, and in the initial volume published in 

2008. And I would ask that the 2009 update be included in the 

record. 

Chairman CARDIN. Without objection. 

Mr. LAUFMAN. Mr. Chairman, the proven effectiveness of criminal prosecutions of terrorism cases is reason alone to ensure that 

the Government’s ability to bring these cases in the courts is not 

hindered. But there are additional benefits. Bringing terrorism 

cases in Article III courts under well-established constitutional 

standards and rules of procedure and evidence confer greater legitimacy on these prosecutions, both here and abroad, by revealing 

33 

the underlying facts of our adversaries’ plots. Criminal proceedings 

also play an important role in educating the American people and 

the world about the nature of the threat that we face. In my judgment, the Obama administration, therefore, should be commended 

for establishing a presumption ‘‘where feasible’’ that Guantanamo 

detainees will be prosecuted in Article III courts. 

At the same time, I would respectfully submit to the Subcommittee that congressional restrictions on the administration’s 

ability to transfer Guantanamo detainees to the United States for 

criminal prosecution are ill advised, contrary to the national interest, and should be eliminated. These restrictions appear to be 

based on the myth that terrorists cannot be safely incarcerated in 

the United States. In fact, both before and after 9/11, a rogues’ gallery of dangerous terrorists successfully have been detained in this 

country, as detailed in my written testimony, in localities across 

the United States. None of these facilities was ever attacked while 

a defendant was incarcerated there on terrorism-related charges, 

and no such detainee has ever escaped. The most dangerous of 

these terrorists are now safely serving their sentences at the impregnable supermax facility operated by the Federal Bureau of 

Prisons in Florence, Colorado. 

Congress has ignored this history of experience. It has also ignored the Department of Justice’s regulatory authority to tighten 

security for individuals who either are being detained pending trial 

on terrorism-related charges or have been convicted of such an offense. Under Federal regulations, the Attorney General has broad 

discretion to impose special administrative measures that severely 

restrict a detainee’s ability to engage in conduct while incarcerated 

that could present a national security risk, including restrictions on 

contact with other inmates, even group prayer with other Muslim 

inmates, and with the outside world. 

As the Obama administration and Congress grapple with resolving the detention of prisoners at the U.S. Naval Station in Guantanamo Bay, it is essential to create a legal architecture that gives 

the executive branch flexibility in determining whether and where 

to bring terrorism prosecutions. One option that must be preserved, 

among other options, with respect to both Guantanamo detainees 

and future cases is the criminal prosecution of detainees in Federal 

courts. 

In its preliminary report issued on July 22nd, the Detention Policy Task Force recognized the importance of preserving both criminal prosecution and military commission as options for the Government in determining where to prosecute individuals accused of engaging in terrorism. The task force identified three broad sets of 

factors that the Government will employ in determining the appropriate forum for a terrorism prosecution. 

The factors identified in the task force’s preliminary report reflect a recognition that while criminal prosecutions may be generally desirable, certain terrorism cases either should not or cannot 

be brought in Article III courts. In my judgment, these cases include cases where the defendant is accused of committing crimes 

against humanity or war crimes or evidence was gathered in the 

battlefield by U.S. or foreign military or security services or the 

Government’s key inculpatory evidence is based on sensitive intelVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
34 

ligence sources and methods that either should not be disclosed to 

the defense or cannot be revealed in a public trial, or where statements critical to the Government’s case were obtained through coercive means. 

In such cases, Mr. Chairman, where the Government has made 

a finding that the evidence against an accused is both probative 

and reliable and that release, repatriation, or adjudication in an 

appropriate third country is not an option, the Government must 

have recourse to an alternative legal forum such as a military commission, subject to oversight and under rules that balance a defendant’s right to a fair proceeding with the Government’s legitimate right to protect national security interests. President Obama, 

therefore, was wise in my judgment to retain the system of military 

commissions pending various procedural reforms. 

In conclusion, I commend you for holding today’s hearing, and I 

urge the Subcommittee to follow a course that enables the administration to bring detainee and other terrorism in criminal courts, 

without restriction, while preserving its ability to bring prosecutions in military commissions where appropriate. 

Thank you. 

[The prepared statement of Mr. Laufman appears as a submission for the record.] 

Chairman CARDIN. Thank you, Mr. Laufman. 

Ms. Pearlstein. 

STATEMENT OF DEBORAH N. PEARLSTEIN, ASSOCIATE RESEARCH SCHOLAR, WOODROW WILSON SCHOOL OF PUBLIC 

AND INTERNATIONAL AFFAIRS, PRINCETON, NEW JERSEY 

Ms. PEARLSTEIN. Thank you, Chairman Cardin, Senator Kyl, 

members of the Subcommittee. Thanks for the opportunity to testify on this important subject. 

The preliminary report of the Administration Detention Policy 

Task Force, issued last week, announces the administration’s intention to use reformed military commission proceedings to try 

some fraction of the detainees currently held at Guantanamo Bay. 

As I recently testified before the House Judiciary Committee, while 

I continue to doubt that the use of a new military commission system is a necessary course of policy, I also believe that it is possible 

to conduct commission proceedings for certain crimes in a way that 

comports with U.S. and international law. Ensuring that any future proceedings meet those standards is now a critical responsibility of Congress. 

In this brief statement, I would like to highlight just a few of the 

recommendations I have made that I believe are essential to help 

ensure that any commission process going forward complies with 

applicable U.S. and international law. These recommendations involve both the legislative framework governing the commissions 

and the protocol recently put forward by the Detention Policy Task 

Force for determining whether to proceed with criminal prosecution 

in a military commission or in Article III court. 

The administration is right to recognize that guidance is needed 

in these exceptional circumstances to constrain the exercise of prosecutorial discretion. At the same time, the protocol put forward 

35 

needs to be clarified in key respects to ensure that discretion is exercised in a way that is consistent with the rule of law. 

In recent testimony before the House, I offered a series of specific 

recommendations for how the Military Commissions Act of 2006 

should be amended if commission proceedings are to comply with 

relevant law, and I ask that that testimony be incorporated into 

the record here, if that is possible. 

Chairman CARDIN. Without objection. 

Ms. PEARLSTEIN. Thank you. 

In addition, I think it is critical that any new legislation regarding military commissions include a sunset provision or other structural mechanism to ensure that the commissions are strictly limited in purpose and duration. Such structural limitations are essential not only to bolster the commissions’ already tarnished legitimacy, but also to ensure their constitutionality. 

As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of 

guilt and innocence be carried out by independent courts created 

under Article III. In keeping with this constitutional presumption, 

the extent to which the Supreme Court has approved the use of Article I military courts has been strictly limited by the Supreme 

Court. 

As the Hamdan Court recognized, military commissions had historically been courts of necessity, not efficiency, recognized only in 

a limited set of circumstances, the only one of which that is relevant here is when commissions are, in the words of the Supreme 

Court, ‘‘incident to the conduct of war.’’ In this respect, where a 

new commission system functions other than incident to the conduct of a particular recognized war, whether because the offenses 

charges are not war crimes under international law or because the 

commission itself appears to extend its mandate beyond events occurring within the period of war as recognized by international law, 

it may be more vulnerable to challenges exceeding Congress’ authority under Article I. Absent clearer formal recognition of the 

commission statute that ‘‘military commissions’’ cannot exercise jurisdiction over every crime committed at any time, Congress may 

not only exceed its constitutional authority, it will have created, in 

my judgment, a standing national security court by another name. 

Finally, let me say a word about the administration’s proposed 

protocol for selecting where Guantanamo cases should be prosecuted. Any such protocols should reflect two central principles, 

and it is unclear to me from the text of the protocol whether it 

does. 

First, military commission trials may only be considered at all in 

those cases in which prosecutors have probable cause to believe 

that a specifically defined war crime has been committed, and that 

evidence admissible in the commission forum will likely suffice to 

sustain a conviction. In the absence of either one of those two findings, none of the other considerations identified in the protocol— 

the gravity of the alleged conduct, the relative efficiency of the 

forum, foreign policy concerns, and so forth—are relevant to the 

prosecutorial decision in choosing a forum. Independent, professional prosecutors must have arrived at clear and affirmative answers to these threshold questions—that is, probable cause of a 

36 

war crime, and evidence sufficient for prosecution—before the protocol is even invoked. 

Second, the administration’s stated presumption in the protocol 

in favor of prosecution in Article III courts must include guidance 

that makes it clear for prosecutorial decisionmakers why and to 

what extent such a presumption exists and how it should be implemented. In my view, such a presumption is consistent with, and 

perhaps compelled by, the structure of our Constitution, which recognizes Article III courts as the default setting for criminal trials 

of non-servicemembers. It is also essential as a policy matter to 

limit the strategic damage continued use of military commissions 

seem likely to cause. 

The President has wisely recognized that Guantanamo has had 

the effect of expanding the base of al Qaeda recruits. Just as with 

the Guantanamo detention system in general, the taint of unfairness extends to the commission process in particular. Whatever 

tactical gain may be achieved in trial by commission in the first instance will bring with it a strategic cost of conducting trials under 

a system many will likely to continue to see as lacking legitimacy. 

As the President himself appears to believe, the United States 

has already suffered significant strategic losses in the global struggle against terrorism. It is in our national security interest to minimize those losses going forward. 

The single biggest threat to the legitimacy of the military commissions is the danger that the commissions will function, in perception or reality, as a second-class form of justice for cases involving evidence insufficient to prevail in prosecution in a traditional 

Article III setting. Adhering closely to constitutional standards of 

evidence and fiercely protecting prosecutorial independence, these 

are indispensable safeguards if commissions are to move forward 

without the taint of illegitimacy that has so infected commission 

trials to date. 

Thank you, and I look forward for your questions. 

[The prepared statement of Ms. Pearlstein appears as a submission for the record.] 

Chairman CARDIN. Thank you very much. 

Mr. Edney. 

STATEMENT OF MICHAEL J. EDNEY, GIBSON DUNN & 

CRUTCHER LLP, WASHINGTON, D.C. 

Mr. EDNEY. Thank you, Chairman Cardin, Ranking Member Kyl, 

for the opportunity to come and address this important issue today. 

You have my written statement. I just wanted to highlight a few 

key points before we get started with the questions. 

After the President’s May 21st speech to the Nation, it is becoming clear that there is an emerging consensus now between two administrations that some form of military commissions is necessary 

for the prosecution of members of al Qaeda, specifically ones at the 

Guantanamo Bay facility. At the same time, in fewer than 6 

months, the President’s deadline for closing Guantanamo will arrive. We have not heard from the President’s task force on how 

that will be handled, but what we do know is that there are more 

than 220 detainees at Guantanamo today, just about 15 fewer than 

there were when this administration started; and it is almost ineviVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
37 

table that al Qaeda detainees, maybe hundreds of them, will end 

up in the United States. Some will be here held as enemy combatants. Some will be tried in Federal courts. Some will be tried by 

military commissions. And that is the topic at hand today, an issue 

that Congress will have a significant role in. 

I want to address briefly the considerations, the legal considerations that would help in choosing between Federal criminal trials 

and military commissions. 

First, that choice needs to address classified information. Classified information is at the forefront of any trial involving al Qaeda 

operatives. Our Nation’s military and intelligence services have 

conducted significant surveillance, especially against the highestlevel individuals in the al Qaeda organization, and these are the 

people that we are talking about down at Guantanamo right now, 

and they have done it to protect the American people. So classified 

information, any way you look at it, is going to be either used in 

the Government’s case or be relevant to what the defense wants to 

say. 

The fundamental principle here behind the military commission 

rules on this is to avoid forcing the Government into a very difficult 

choice between revealing classified information to members of an 

enemy force during a time of armed conflict, a continuing war, on 

the one hand, and holding them responsible and accountable for 

violations of the law of war, including the 9/11 attacks on this 

country, on the other hand. So the Military Commissions Act allows for an impartial check by the judge on the reliability of underlying intelligence sources and methods without revealing every intelligence activity behind the evidence. At the same time the defendant receives every piece of evidence that the jury sees and he 

is entitled to all exculpatory evidence, classified or not, unless 

there is an adequate substitute for him to prepare his defense. 

These are special procedures for a continuing war. The rules in 

criminal trials identified by the Classified Information Procedures 

Act are not that. They are not tailored to a continuing armed conflict. That law was passed for very different circumstances, and if 

you go back and look at the legislative history of that act, you will 

see it. It was to try U.S. Government officials for espionage. These 

people were walking repositories of classified information, and we 

wanted an orderly system for the Government to have notice when 

they intended to bring some of this classified information out at 

trial. 

If we are going to go down the path of trying dozens of Guantanamo detainees in Federal court, we need to take a critical look at 

these rules that are now in Federal court under the Classified Information Procedures Act. It is no answer to say that Federal 

courts are ready because of a law passed 29 years ago for a very 

different purpose. 

Second, there has been significant discussion today—and it was 

the primary focus of the testimony earlier—about how we sort 

Guantanamo detainees between Federal criminal trials and military commissions, and I think this is a crucially important topic. 

The administration says that there will be a presumption of Federal court trials unless the evidence is too weak or the classified 

information is too important, in which case a move back to the 

38 

military commission system may be considered on a case-by-case 

basis. This approach, I believe, may be a threat to the integrity of 

both the military commission system and the Federal criminal justice system, and this is something that Senator Feingold pointed 

out earlier. It sends a message that the rigorous procedures in Federal courts for criminal trials matter until they matter; or, in other 

words, they will be followed until they make a difference in a particular case, at which point we will move to another system of justice. 

For military commissions, the message would be that those proceedings are a type of secondary justice not to be respected, and I 

think we can have no doubt when it comes to defending the military commission system in the appellate process that that message 

will be taken by the judges that review it. 

A better approach would be to designate a class of cases for one 

system or another, the quality of evidence in any particular case 

aside. Try all members of al Qaeda who are aliens who have violated the laws of war in military commissions. Justify that choice 

on history, tradition, and the necessities of armed conflict. Or try 

all of those individuals in Federal courts. But the least preferable 

option is to sort them on the strength of the evidence to come up 

with a compromise solution, a sliding scale that applies to particular cases as we move through the process. 

Third, Congress needs to consider the legal consequences of 

where military commission trials are held, and this is something 

that is an impending issue for this body, because unless the President changes his deadline, these new military commission trials 

will be held in the United States, not in Guantanamo. And when 

the Military Commissions Act was passed, while that was a possibility, it was not at the forefront of the consciousness of this body. 

One legal consequence of holding those trials in the United 

States is the scope of the constitutional rights that will apply. The 

more constitutional provisions applicable, the fewer options that 

are available to Congress in developing rules for these trials. 

In the United States, territorial arguments against the application of certain constitutional provisions would be wiped away once 

these military commissions come here, and that will have all sorts 

of consequences. Everybody on the panel today talked about the 

need for special rules for hearsay, and I think there is a broad consensus on that. But I think those would be the first to fall if the 

trials were held here in the United States and full constitutional 

guarantees applied to those proceedings. If the Confrontation 

Clause applies, the Supreme Court’s recent decision in Crawford v. 

Washington would suggest that a safety valve for hearsay that depends on reliability assessments by a trial judge would be invalid. 

Another consequence would be taking away Congress’ exclusive 

discretion as to whether Guantanamo detainees are released inside 

the United States. The power to allow entry into this country rests 

exclusively with this body under the Constitution’s Naturalization 

Clause and Article I, Section 8, Clause 4 of the Constitution. And 

the Court would be extremely unlikely to order entry after a military commission acquittal outside of this country. But once Guantanamo detainees are here, that is no longer a power that Congress 

will have. It will be up to other branches. 

39 

Thank you again for the opportunity to testify. I look forward to 

the panel’s questions. 

[The prepared statement of Mr. Edney appears as a submission 

for the record.] 

Chairman CARDIN. Well, thank you to all three for your testimony and your addition to the record. 

I want to start with the first point where there is a difference, 

I guess, between Mr. Edney and Mr. Laufman and Ms. Pearlstein, 

and that is, if we bring these detainees into the United States— 

and I think it is difficult to argue that this is not a problem that 

the United States can avoid being part of the solution. We are not 

going to be able to get other countries to handle all the people at 

Guantanamo Bay. We are going to have to assume responsibility 

for bringing these individuals to justice. And if we use our Article 

III courts, they are going to be here in the United States. 

I think it is clear that we can safely detain and incarcerate these 

individuals here in the United States. I do not really think that is 

an issue. As has been pointed out by my colleagues, there are hundreds of convicted terrorists currently in our prison system. 

The issue, Mr. Edney, that you raise is that if they are found to 

be not guilty or there is insufficient evidence and they are here, 

whether it is a military commission or a trial, an Article III court, 

what do you do if they are not convicted or one day they complete 

their sentence, whatever that sentence might be, and they are released? Do we give up our ability to require that they leave our 

country? I do not think we do. I think the immigration laws are 

such that there is no responsibility for them to be allowed to remain in the United States, particularly when they have violated 

any of the standards that we would allow someone to come into our 

country. So I think we can ask them or require that they leave our 

country. 

So I think we are not giving that up. I think Congress has spoken to that, and, of course, we are waiting to hear the administration’s plan, and we expect that that will be addressed somewhere 

in their plan as to what ultimately would happen to individuals 

who are either found exonerated by the court system or have exhausted their sentence here in the United States, what would be 

the administration’s position as to where they ultimately would be 

released. I do not have the answer to this, but I just think this 

problem is solvable. 

But I want to—and if you want to comment on that, if any of you 

want to comment on that, that is fine. Mr. Edney. 

Mr. EDNEY. Yes, I am happy to comment on that. I think that 

is an important point that you raise, Senator, about the ability to 

remove them from the country after an acquittal. They are aliens, 

after all, and you can develop procedures that would reduce their 

standing to stay in this country. 

I think it is important to keep in mind that one of the challenges 

of reducing the Guantanamo population has been finding countries 

willing to take these people because of the assessment of those 

third countries of the dangerousness of those individuals, and, perhaps more importantly, finding places for some of these individuals 

where they will not be mistreated. Once they are in the United 

States, we actually have a legal obligation under the torture statVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
40 

ute and under the Convention Against Torture not to return an individual to a place where he or she will be mistreated, and that has 

been a big challenge at Guantanamo. 

Chairman CARDIN. That is part of commitment. I acknowledge 

that. But let me just take issue with one point. I have talked to 

representatives from other countries concerning this issue, and one 

of the points they raise to me frequently is that, fine, we are willing to do our part, but is the United States willing to take on a 

responsibility within its justice system? And I am talking about nations in which there is no question that they would respect international human rights in regards to the manner in which they 

would handle these transfers. 

So I think it is an issue that the United States has to be prepared to deal with, because we are, we are transferring some now 

for trial. I think that is going to happen. But I think you raise a 

legitimate concern, and it may well be that we need to change the 

law to deal with what happens in the eventuality that these individuals ultimately are released from our criminal justice system, 

strengthen the laws in regards to deportation. 

Mr. EDNEY. Well, why not change it before they arrive, too? That 

is—— 

Chairman CARDIN. We might—— 

Mr. EDNEY. Because once they are here, rights will attach, and 

it will be difficult to take them back. 

Chairman CARDIN. We might have to. 

Ms. PEARLSTEIN. I guess I would just differ slightly. I agree absolutely with your premise. This particular problem is a solvable 

problem. In fact, to the extent I differ, I think it may already be 

solved, and that is, let me just highlight, I think, two distinctions. 

First of all, the U.S. obligations not to send anybody back to a 

country where they are likely to face torture and persecution and 

so forth is an obligation under we have under our statutes, regulations, treaties and so forth. It attaches already in Guantanamo 

Bay, and whether they stay in Guantanamo or come back here, we 

are under that obligation. And I think the evidence of that is reflected in the fact that the last administration, just like this administration, thought they cannot send the Guantanamo Bay detainees 

back to places like China or wherever to face persecution. So those 

obligations exist whether they are in Guantanamo or whether we 

bring them to the United States. That does not make a difference. 

With respect to what to do if a detainee is brought to the United 

States for trial, is acquitted, or convicted and then serves his sentence, under immigration laws as I understand them as they exist, 

that person is certainly deportable, and not only are they deportable, we can continue to detain them while deportation proceedings 

are pending. So there is, in my view, simply no risk that a Federal 

court would then immediately order the release from the supermax 

facility in Colorado. 

Chairman CARDIN. I think that is the concern of people in our 

country. There is concern that the terrorists that are currently at 

Guantanamo Bay could be released in the United States, and I 

think that risk is not there if we follow the procedures we are talking about. 

Yes, Mr. Laufman. 

41 

Mr. LAUFMAN. Just to make clear, the alien removal statute is 

that authority that Ms. Pearlstein is speaking of, which empowers 

the Attorney General to do anything at his discretion to detain foreign nationals who present a national security risk. There is no 

specific time limit by law on how long the Government can detain 

people for national security reasons. There was a Supreme Court 

case in Zadvydas a few months before 9/11, where the Court even 

made a bow toward the necessity to detain foreign nationals longer 

under the alien removal statute where there were national security 

grounds to do so. 

Mr. EDNEY. Well, I just want to say about that, if you go back 

to the Zadvydas case that held that question open, I do not think 

we know how the Supreme Court is going to rule on that, and the 

Zadvydas decision places a heavy thumb on releasing people who 

cannot be deported within 6 months. So that is a risk that we are 

running, constitutional litigation. 

Chairman CARDIN. I would just make this observation. I think 

there is no opposition at all in Congress to making the laws as 

clear as can be that terrorists are not going to be released in the 

United States. I think that is—if we need to strengthen the law, 

we will strengthen the law. I think we could pass that without too 

much difficulty. So I think that issue can be handled. 

I understand some of the other points that have been raised. I 

agree with Ms. Pearlstein; I think it is already clear. But if we 

have to make it stronger, we will make it stronger that, assuming 

we go through trials, assuming that there are detainees that become incarcerated in the United States, either awaiting trial or 

during trial or after conviction, ultimately if there comes a time 

when they are eligible to be released, they are not going to be released in the United States. One way or the other they are not 

going to end up in our country. They are not citizens of America. 

They have no rights in that regard. 

Let me turn to Senator Kyl. 

Senator KYL. Let me just ask and, if you can, a yes or no answer, 

and then if you need to expand, then do it. On this last point, do 

you agree with Senator Cardin’s statement just now that if the 

United States brings someone from Guantanamo to an Article III 

court and, for whatever reason, they are at some point released, 

deemed no longer imprisonable—the case is dismissed, their sentence has been served, whatever the situation—at that point there 

is no constitutional issue, having been brought to the United States 

and being in the United States, that the United States could hold 

them indefinitely in the event that we could not find a place to 

send them, that there is no constitutional issue, no constitutional 

right for that detainee to be released after a period of time? Do you 

agree with that? 

Mr. LAUFMAN. I am not sure I understand the Senator’s question. 

Senator KYL. Would there be a constitutional claim by someone 

brought into the United States, having served his sentence, for example, with the existing immigration laws that allow us to hold an 

individual who is deportable? 

Mr. LAUFMAN. If it is a foreign national, I do not believe—— 

Senator KYL. A foreign national. 

42 

Mr. LAUFMAN. If it is a foreign national, I do not believe the individual would have a creditable claim that he cannot be detained 

under the alien removal statute. The boundaries of how long that 

detention can take place may well be litigated because Zadvydas 

left open that question. 

Senator KYL. Right. Do you agree with that, Ms. Pearlstein? 

Ms. PEARLSTEIN. I agree that it is an open question after 

Zadvydas that, you know, without any legal authority to continue 

to detain somebody, they just need to be deported, and we have no 

place to send them, could we continue to detain them beyond 6 

months, a year, 3 years, and so forth. The Supreme Court has 

never had occasion to rule on that particular question. When it left 

the question open in Zadvydas, it said it may be that terrorism and 

security cases are an exception, and this was a case that came 

down before 9/11. 

Senator KYL. Mr. Edney, your view. 

Mr. EDNEY. I think that there is a substantial risk, Senator, that 

they would have a constitutional claim for release in the United 

States. And if it is a constitutional claim, we can pass all the legislation in the world, and we cannot really do anything about it. 

Senator KYL. All right. Thank you. 

Mr. Edney, can you edify us at all on the statements that have 

been made earlier that there have only been three convictions in 

military commissions out of Guantanamo? What are the reasons for 

that? 

Mr. EDNEY. Well, I go over this somewhat in my written statement, but there is a long history behind this. When the military 

commissions really got started in earnest after captures, they got 

started in about the 2003–04 period, and they were immediately 

caught up in constitutional challenges and stayed for almost 3 

years, well over 2 years, resulting in the Supreme Court’s decision 

in Hamdan v. Rumsfeld in 2006. 

Then it took time for the Congress to respond, to pass the Military Commissions Act, develop rules under the Military Commissions Act, which were not completed until January 2007 through 

yeoman work by both the executive branch and the Congress. 

After that, charges started to happen, and by January 2009, 

nearly 24 people had been charged by military commissions under 

the MCA. Even in that period, there were at least 7 or 8 months 

that was held up in yet another jurisdictional challenge that got resolved by the Court of Military Commission Review in September 

2007. So because of all of the higher-court litigation, the military 

commissions really have not had a chance to get working until the 

very end, until they were suspended on the day after President 

Obama was inaugurated. 

Senator KYL. Are you familiar with how many of the Guantanamo people—that is to say, alleged enemy combatants detained at 

Guantanamo—have been tried in Article III courts in the United 

States? Or successfully convicted, I think was the claim. 

Mr. EDNEY. Could you run that by me again, Senator? 

Senator KYL. How many of the detainees at Guantanamo have 

been successfully convicted under Article III courts? 

Mr. EDNEY. Well, none, and I think that—you know, I listened 

to Senator Durbin’s commentary on this. You know, there have 

43 

been a lot of people that have been convicted in Article III courts 

of terrorism offenses. The people at Guantanamo are a little bit differently situated. I mean, we have down at Guantanamo now al 

Qaeda leadership, and one feature about al Qaeda leadership, without telling anything that should come as a surprise to anybody, is 

that they are heavily surveilled, and that makes things awfully 

complicated when it comes to trying them. I mean, they are really 

in kind of a class by themselves. And on top of that, many of those 

prior cases come during the time of continuing armed conflict 

where you want to continue those measures to protect the country 

and be on the offensive against the terrorist organization. 

Senator KYL. Mr. Laufman, I had a question. In your testimony, 

you approvingly quoted the President’s statement that the existence of Guantanamo likely created more terrorists around the 

world than it ever eliminated. I was intrigued by the allegation 

when the President made it on May 29th, so I sent a letter to the 

National Security Adviser, General Jones, and I asked him to provide factual support for the statement. I have not received any response from the administration, and since you referred to it, I wonder if you could provide some factual support for the statement or 

quantify in some way how many or who you are referring to. 

Mr. LAUFMAN. I am not sure that was in my statement, but I will 

say to the Senator that it has been my observation from talking to 

people in the intelligence community—and I even had the opportunity when I was in Saudi Arabia about 18 months ago to meet 

some detainees released from Guantanamo, then in a Saudi 

jihadist halfway house program, if you will—to speak to them 

about what had led to their radicalization, what had helped to form 

them as extremists. And some of them talked about Abu Ghraib. 

Some of them talked about Guantanamo Bay. And it is hard to 

form any hard and fast conclusions from that that have any statistical, empirical value. But I think it is fair to say that Guantanamo 

became a jihadist propaganda tool to recruit people to the cause, 

and to that extent, it has become a national security liability for 

the United States. 

Senator KYL. I misspoke. Actually, that was in Ms. Pearlstein’s 

statement, and so I apologize for asking the question. My time just 

expired, but I think I could ask Ms. Pearlstein, can you provide 

some enlightenment on the basis for the statement? 

Ms. PEARLSTEIN. Sure. The basis of the President’s statement. 

You know, obviously I do not have any personal knowledge of what 

the President in particular was basing his statement on. The reason I believe the statement is several-fold, and I would caution that 

it is difficult to quantify—you know, we do not have any way of 

having any knowledge of what the worldwide population is of al 

Qaeda members currently, but the evidence I found the most persuasive in this respect was at least three-fold. 

First is testimony in the last few years by people like Alberto 

Mora, who was the former General Counsel of the Navy under 

President Bush, and senior leadership of our military who said on 

the battlefield—in Iraq this was at the time, in particular—the two 

single things they thought were putting their troops most in danger were Guantanamo and Abu Ghraib. That is one piece of eviVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
44 

dence, and the testimony, the sort of individual testimony of those 

folks who are sort of on the front line I found quite compelling. 

Senator KYL. In other words, the assumption is that people who 

would not have otherwise been recruited believed that the American system of justice at Guantanamo was insufficiently rigorous 

and, therefore, decided to object by becoming terrorists? 

Ms. PEARLSTEIN. I do not think they—I think the short answer 

is—— 

Senator KYL. That is a bit of a stretch, isn’t it? 

Ms. PEARLSTEIN. No. I think if you look at—— 

Senator KYL. What standard of justice does somebody in Saudi 

Arabia test the American standard against to reach the conclusion 

that we are not fair? 

Ms. PEARLSTEIN. I think that is a bit of a misstatement—or a bit 

of a mischaracterization, I would say. I think the argument they 

were making—and if you look on jihadist websites, recruiting 

websites, the pictures on those websites are pictures of Abu Ghraib 

and pictures of Guantanamo Bay. I do not think they are making— 

I do not think they are necessarily making a highly specific argument about what the procedural rules of the military commissions 

are. They are making a symbolic—— 

Senator KYL. But if I—and I apologize for interrupting—— 

Ms. PEARLSTEIN [continuing]. Argument and they are succeeding. 

Senator KYL. But, really, what that would suggest is that anything that they object to about our Western way of life we should 

compromise because it might be a reason for them to recruit each 

other. 

Ms. PEARLSTEIN. Absolutely not. I absolutely disagree with that 

statement. 

Senator KYL. I am glad you disagree with that. 

Ms. PEARLSTEIN. I would argue that they are in so many respects 

completely wrong. The problem is we do not get a choice in the 

United States about what our enemies decide to do. What we can 

do, to the extent possible—and I think in this case, the case of the 

treatment of detainees and the trial process we use, it is incredibly 

possible to minimize the risk that what we are doing is going to 

make us more enemies than we already have. 

Chairman CARDIN. Let me just raise one or two points very 

quickly. 

First, in regards to use of Article III courts with terrorists in the 

United States, there was no effort made by the previous administration to prosecute detainees at Guantanamo Bay under Article III 

courts. So the numbers that were raised earlier dealt with terrorists who were apprehended outside of Guantanamo Bay, some 

Americans, some non-Americans, who have been prosecuted successfully under Article III trials. 

I want to just ask a question. If you have a person at Guantanamo Bay today who is not eligible for a military commission under 

the war crimes issue, so it could be tried either in Article III or it 

could be tried in a military commission, and you have the evidence 

to proceed either way you want to, what do you think should be 

the preference? Should we try that person in a commission, or 

should we try that person in an Article III court? If we have a true 

option one way or the other to, we believe, successfully prosecute 

45 

that person for criminal actions, what is your preference? And 

why? 

Mr. LAUFMAN. My preference as a general rule of thumb is to 

bring those cases in Article III courts except in cases where, for 

policy reasons, I believe they belong in a military commission, 

cases involving crimes—— 

Chairman CARDIN. The reason why? 

Mr. LAUFMAN. Crimes against humanity, war crimes. 

Chairman CARDIN. I excluded that. 

Mr. LAUFMAN. My preference for the Article III forum is that I 

believe it holds us to the highest standards. It confers the greatest 

legitimacy on the outcome of those cases. It is an enormous educational tool by virtue of the constitutional right to public trials for 

the illumination of the underlying evidence regarding the conduct 

at issue. It produces a result that I think stands the test of time. 

Our courts are familiar with applying the rules of evidence, procedural rules to novel sets of facts. We have an enormous empirical 

body of history to rely upon over the last 10 years, and going back 

before 9/11 in the cases starting in the Southern District of New 

York and coming through my old district. We do not have to reinvent the wheel each time. 

Chairman CARDIN. Ms. Pearlstein. 

Ms. PEARLSTEIN. As a policy matter, which is how I understand 

your question, I think the preference should be for Article III 

courts for the reasons I was getting at just a moment ago in my 

statement. With the prosecution in an Article III court, you get all 

of the tactical benefit of a successful, almost always successful 

prosecution without any of the strategic downside of using a forum 

that is still perceived—and hopefully the new commissions will be 

better, but generally the military commission forum is still perceived as a second-class system of justice. 

There is a tremendous amount of work that has to be done to 

overcome that perception and reality. I think we are on the right 

track now. But in the meantime, there is no more powerful tool for 

securing the long-term detention of terrorist suspects than prosecution in Article III courts. 

Chairman CARDIN. Mr. Edney. 

Mr. EDNEY. Well, it is hard for me to say that I have a policy 

preference because I am really just used to giving legal advice on 

this question. I think my legal advice on it would be the following: 

If the premise is right that has been recognized by two administrations now that you need some military commission system for some 

members of al Qaeda to hold them to account for their crimes 

against the law of war, I think it is important that you think very 

seriously about putting all alien members of al Qaeda who have 

violated the laws of war into that military commission system, because what you cannot have—I do feel this relatively strongly. You 

cannot have a situation where you go to the military commission 

system when a Federal court trial in a particular case gets too 

hard. And I think there is lots of history, lots of tradition, lots of 

very strong arguments for using military commissions for a class 

of individuals, members of al Qaeda during a continuing time of 

armed conflict, to hold them accountable for their violations of the 

laws of war. I do not think it is possible to argue that the SepVerDate Nov 24 2008 08:21 Aug 13, 2010 Jkt 057711 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57711.TXT SJUD1 PsN: CMORC
46 

tember 11th attacks, for example, were not a violation of the laws 

of war, and that was part of the armed conflict against the United 

States. 

Chairman CARDIN. Thank you. 

Senator Kyl. 

Senator KYL. Let me just pursue it, because I think this is an 

intriguing argument. If the claim—and all three of you have made 

this point one way or another, that you do not want to be accused 

of a double standard, in effect, of what Mr. Edney talked about, 

that the Article III cases are great until they become too hard, 

until their very protections would preclude a prosecution, then you 

turn to the second-class justice, clearly we want to avoid that kind 

of construct here. And so Mr. Edney’s suggestion is that you try, 

rather than doing a case-by-case analysis, which necessarily will 

hang essentially on that question, that you ought to decide in advance that some are appropriate for one and some are appropriate 

for the other. 

Now, contrast that with the fact that, of course, one of the justifications for military commissions is that you do not have to deal 

with some of the protections that are guaranteed in the Article III 

courts—the use of classified information that would become deleterious to our national security and so on. 

Let me just ask you, Mr. Laufman. Does Mr. Edney have a point 

here, that to some extent you are almost conceding that military 

commissions are a second-class kind of justice if you start out with 

the presumption that you should start with Article III presentations? 

Mr. LAUFMAN. Well, I start out with that presumption only with 

respect to those cases that I feel as a policy matter do not belong 

in military commissions. There are some categories of cases that I 

do believe belong in military commissions, and I might even go so 

far as to agree with Mr. Edney that the Moussaoui case could have 

probably been brought in a military commission. 

Senator KYL. If I could just interrupt, so you would both agree 

that there are some cases that you ought to just put off in a corner 

and say these are military commission cases irrespective of the 

case-by-case analysis, but then get to the case-by-case analysis for 

a large number of remaining cases? 

Mr. LAUFMAN. It is my own view that there are some cases for 

policy reasons that properly belong in a military commission. 

Senator KYL. Right. But then as soon as you start doing the caseby-case analysis—and most of that will hang on how easy or how 

tough it is to get the prosecution, won’t it?—then don’t you get into 

this dilemma that Mr. Edney discussed? 

Mr. LAUFMAN. There will be tough judgments, there is no question about it, that have to be made. Those kinds of judgments are 

made all the time, whether even to bring criminal prosecutions, 

you know. 

Senator KYL. So let me just ask you this: Suppose that you are 

responding to an intellectual argument rather than the sort of recruiting argument that Ms. Pearlstein was talking about earlier, 

somebody who is criticizing our system and says, well, your system 

is bad because, you know, you say Article III except when it gets 

too tough, then you just revert to the military commissions. And 

47 

you would defend a case-by-case analysis of which one to go to by 

saying what? 

Mr. LAUFMAN. It is going to depend on the specific facts of each 

case. I think as Mr. Kris was saying, these are very fact-intensive 

cases. You know, what is the admissible evidence in this case? You 

know, can the Government meet its obligations under the principles of Federal prosecution? You know, can it sustain a conviction? Can it protect—— 

Senator KYL. But all of those—excuse me again for interrupting, 

but all of those get to how easy it is to get the prosecution. 

Mr. LAUFMAN. Well, if you begin with a presumption in favor of 

Article III prosecutions, I think it is propelling you down that road. 

Senator KYL. I agree, and I think that was part of Mr. Edney’s 

concern or question. 

Mr. LAUFMAN. But I am not troubled as a policy matter if we all 

begin from the position of doing everything necessary and appropriate to protect national security. If we have to in some cases send 

some cases to military commissions to ensure that bad actors receive justice in an appropriate forum about which there can be no 

controversy as to its legitimacy, I do not have a problem with that. 

Senator KYL. So your response is just the practical one, yes, it 

may be that one could argue we are relegating this situation to a 

second-class situation, but you respond by saying, first of all, it is 

not second-class, we have a lot of good procedures built in, especially with the legislation that is being proposed; and, second, just 

as a matter of national security, there are some things which do 

deserve to be protected above all? 

Mr. LAUFMAN. That is right, and I do not know that it is necessarily fair to refer to the military commissions as a secondclass—— 

Senator KYL. I agree. 

Mr. LAUFMAN [continuing]. System of justice. It is a different system of justice which has a rich history, which has been discussed, 

you know, at length here today. 

Senator KYL. Mr. Edney. 

Mr. EDNEY. Maybe I could just put a finer point on this. If given 

the choice between the Senate’s resolution that was passed the 

other day to say that this entire class of individuals, alien, 

unprivileged, enemy belligerents I think they now call them, should 

be tried by military commission, on the one hand, and on the other 

hand, the proposed presumption that could be deviated from on a 

case-by-case evidentiary basis, I think we have to go with the Senate’s resolution. And this is really not just because of bolstering the 

military commission system, but protecting the integrity of the 

criminal justice system. It cheapens the Federal criminal justice 

system where these protections are, you know, cast aside on a caseby-case basis. This is something the Supreme Court thought a lot 

about in considering the constitutionality of civil proceedings, you 

know, in a series of Supreme Court cases. 

Where States propose we should be able to detain somebody civilly if they are dangerous, the Supreme Court said, no, you cannot 

use this as a safety valve of the criminal justice system, not really 

because of the civil commitment proceedings but because it hurts 

the criminal justice system. That is what the—and I think that is 

48 

what this Committee needs to keep in mind as it evaluates the proposals of sorting these individuals into various buckets. The process is ongoing right now. 

Senator KYL. It is an interesting question. 

Just let me ask all of you this last question. We talked to the 

first panel about whether if you start from the presumption that 

you should go to Article III courts, of necessity you are going to increase the requirement for giving Miranda warnings much earlier 

in the processing of these detainees. Now, the answer from the first 

panel seemed to be that, no, because you have to start with the assumption that the interrogation is going to be initially for the purpose of national security, and only after that has been accomplished do you then confront the question of now what do we do 

with this person who could be tried in Article III courts. That is 

the presumption. So that perhaps the Miranda warning still would 

not be given so early in the process that it could interfere with the 

acquisition of intelligence information. I think that is a summary 

of what the first panel said. I would be interested in your evaluation of that. 

Mr. LAUFMAN. I will start. These are considerations that have 

been in play for years now in cases where individuals are arrested 

and detained, sometimes by U.S. military forces, sometimes by 

other countries, and where the imperative is to gather as much actionable intelligence as possible without grafting into the process in 

ways that could have a chilling effect on the elicitation of information, criminal justice based policies like Miranda. 

Take the case of Abu Ali that I have talked about. He had been 

held by the Saudis for many months. The FBI was not given access 

to him for many months. Then in September 2003, a special team 

of FBI agents went in just for the purpose of conducting an intelligence interview. Well, we knew as prosecutors later there was 

nothing we could use from that interview, but when I went over 

there to talk to Saudi officials and we hoped to have a crack at Abu 

Ali, I knew I had to have a Miranda warning with me. It did not 

affect what had gone on before. It would not have affected the efforts to elicit additional intelligence information from him afterward. But the minute I came in as a prosecutor or agents came in 

with the idea of collecting information for use in a criminal prosecution, then we had to have Miranda in mind. 

Ms. PEARLSTEIN. If I could just add to that just a bit, I think 

there are two critical points on the Miranda front. The first is that, 

as Spike Bowman has told me—and he used to be FBI counterterrorism director, senior person in the FBI—if somebody does not 

want to talk to you, they are not going to talk to you whether you 

mirandize them or not. So if you happen to pick up a high-value 

detainee or any detainee who does not want to talk to you on the 

battlefield, you cannot lawfully coerce them into talking to you, but 

the existence of Miranda or not does not make a difference. 

Secondly, in his experience, the vast majority of detainees who 

you do mirandize in the criminal justice system, or any other context, end up talking to you anyway if you have an effective interrogation or interview set of techniques. 

So I think the fear of Miranda as somehow the end of the acquisition of information is sort of substantially overstated. 

49 

The second thing I would say—and this is just to emphasize this 

point—the courts have already held in the course of terrorism prosecutions that have been successfully brought since 9/11 and before 

that it is possible to, you know, if somebody is held by a foreign 

intelligence service, by our own intelligence service where they are 

initially detained, for example, even up to a period of some weeks, 

and interviewed for intelligence purposes, that information is not 

necessarily voluntarily given. But once you after that period of 

weeks give the Miranda warnings, the information you subsequently obtain can still be deemed, depending on the circumstances, voluntary enough to then be admissible in criminal 

court. 

So I actually think this is another example of an eminently solvable problem. 

Senator KYL. Mr. Edney. 

Mr. EDNEY. Senator, I would make three quick points about this. 

First, I think if the presumption is in favor of Federal criminal 

trials and I were providing legal advice to the Department of Defense, I absolutely would advise for any statement that you actually wanted to use in court, you would want to mirandize it. And, 

you know, there is an interesting thing in Mr. Kris’ testimony on 

this, too. He wants to introduce a voluntariness standard into the 

military commissions process, and if were providing legal advice regarding that, I would advise mirandized statements even for people 

that we would send to a military commission, because it is the 

same inquiry. I mean, Miranda came out of the voluntariness 

standard. The Court decided that it was too difficult to manage and 

wanted a prophylactic rule. I think that is probably where we 

would be headed, you know, in the military commissions process if 

there was a voluntariness standard. Certainly, we would look to 

the knowledge of the detainee as to his right to an attorney and 

stop talking and various things like that. 

A second point that I would make—and I think this is an important one—if you are moving to a system where you do not want to 

have the detention of enemy combatants to the end of hostilities— 

which is kind of the old system, right?—but instead you want to 

use Federal criminal trials and military commission trials for the 

vast majority of these cases for incapacitation purposes, making 

sure that an initial statement from a detainee is done under conditions of voluntariness becomes crucially important for the military, 

and they are going to be pulled in two different directions: first, to 

gather intelligence from these individuals to save their lives; and, 

second, to look down the road where we do not have to release 

these folks in a year or two because a statement was not properly 

taken on the battlefield. That is a very dangerous conundrum to 

put our Nation’s armed forces into. 

So these considerations need to be kept in mind both in the 

choice between Federal criminal trials and military commission 

proceedings, but also in the rule that Mr. Kris is urging upon this 

Committee, and the Armed Services Committee more specifically, 

with regard to military commission trials. 

Senator KYL. Thank you very much. 

Thank you, Mr. Chairman. 

50 

Chairman CARDIN. Well, I want to thank all three of you for your 

testimony. I think it has been very helpful. These are not easy 

issues, and they are going to continue to be of interest to the Judiciary Committee as well as the Armed Services Committee and 

every Member of the U.S. Senate. We are not going to solve the 

issue today, and, of course, we are still awaiting the administration’s detailed reports on the closing of Guantanamo Bay, which we 

do not have. But I think today’s hearing prepares us to be better 

prepared as we go forward to developing the policies necessary to 

protect the security of our country. 

Chairman Leahy was unable to attend today’s hearing. He has 

other conflicts, but he asked that his statement be made part of the 

record. Without objection, it will be. 

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

Chairman CARDIN. The Committee record will remain open for 7 

days for additional questions by members of the Committee, which 

I would urge the witnesses, if such questions are propounded, to 

please respond promptly. 

And, with that, the Subcommittee will stand adjourned. Thank 

you all very much. 

[Whereupon, at 5:16 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions follows:] 

[Additional material is being retained in the Committee Files, 

see Contents.] 

51 


57711.001
52 


57711.002
53 


57711.003
54 


57711.004
55 


57711.005
56 


57711.006
57 


57711.007
58 


57711.008
59 


57711.009
60 


57711.010
61 


57711.011
62 


57711.012
63 


57711.013
64 


57711.014
65 


57711.015
66 


57711.016
67 


57711.017
68 


57711.018
69 


57711.019
70 


57711.020
71 


57711.021
72 


57711.022
73 


57711.023
74 


57711.024
75 


57711.025
76 


57711.026
77 


57711.027
78 


57711.028
79 


57711.029
80 


57711.030
81 


57711.031
82 


57711.032
83 


57711.033
84 


57711.034
85 


57711.035
86 


57711.036
87 


57711.037
88 


57711.038
89 


57711.039
90 


57711.040
91 


57711.041
92 


57711.042
93 


57711.043
94 


57711.044
95 


57711.045
96 


57711.046
97 


57711.047
98 


57711.048
99 


57711.049
100 


57711.050
101 


57711.051
102 


57711.052
103 


57711.053
104 


57711.054
105 


57711.055
106 


57711.056
107 


57711.057
108 


57711.058
109 


57711.059
110 


57711.060
111 


57711.061
112 


57711.062
113 


57711.063
114 


57711.064
115 


57711.065
116 


57711.066
117 


57711.067
118 


57711.068
119 


57711.069
120 


57711.070
121 


57711.071
122 


57711.072
123 


57711.073
124 


57711.074
125 


57711.075
126 


57711.076
127 


57711.077
128 


57711.078
129 


57711.079
130 


57711.080
131 


57711.081
132 


57711.082
133 


57711.083
134 


57711.084
135 


57711.085
136 


57711.086
137 


57711.087
138 


57711.088
139 


57711.089
140 


57711.090
141 


57711.091
142 


57711.092
143 


57711.093
144 


57711.094
145 


57711.095
146 


57711.096
147 


57711.097
148 


57711.098
149 


57711.099
150 


57711.100
151 


57711.101
152 


57711.102
153 


57711.103
154 


57711.104
155 


57711.105
156 


57711.106
157 

Æ 


57711.107