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i 

58–226 2010

[H.A.S.C. No. 111–87] 

REFORMING THE MILITARY COMMISSIONS 

ACT OF 2006 AND DETAINEE POLICY 

COMMITTEE ON ARMED SERVICES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

HEARING HELD 

JULY 24, 2009 
(II) 

HOUSE COMMITTEE ON ARMED SERVICES 

ONE HUNDRED ELEVENTH CONGRESS

IKE SKELTON, Missouri, Chairman 

JOHN SPRATT, South Carolina 

SOLOMON P. ORTIZ, Texas 

GENE TAYLOR, Mississippi 

NEIL ABERCROMBIE, Hawaii 

SILVESTRE REYES, Texas 

VIC SNYDER, Arkansas 

ADAM SMITH, Washington 

LORETTA SANCHEZ, California 

MIKE MCINTYRE, North Carolina 

ROBERT A. BRADY, Pennsylvania 

ROBERT ANDREWS, New Jersey 

SUSAN A. DAVIS, California 

JAMES R. LANGEVIN, Rhode Island 

RICK LARSEN, Washington 

JIM COOPER, Tennessee 

JIM MARSHALL, Georgia 

MADELEINE Z. BORDALLO, Guam 

BRAD ELLSWORTH, Indiana 

PATRICK J. MURPHY, Pennsylvania 

HANK JOHNSON, Georgia 

CAROL SHEA-PORTER, New Hampshire 

JOE COURTNEY, Connecticut 

DAVID LOEBSACK, Iowa 

JOE SESTAK, Pennsylvania 

GABRIELLE GIFFORDS, Arizona 

NIKI TSONGAS, Massachusetts 

GLENN NYE, Virginia 

CHELLIE PINGREE, Maine 

LARRY KISSELL, North Carolina 

MARTIN HEINRICH, New Mexico 

FRANK M. KRATOVIL, JR., Maryland 

ERIC J.J. MASSA, New York 

BOBBY BRIGHT, Alabama 

SCOTT MURPHY, New York 

DAN BOREN, Oklahoma 

HOWARD P. ‘‘BUCK’’ MCKEON, California 

ROSCOE G. BARTLETT, Maryland 

MAC THORNBERRY, Texas 

WALTER B. JONES, North Carolina 

W. TODD AKIN, Missouri 

J. RANDY FORBES, Virginia 

JEFF MILLER, Florida 

JOE WILSON, South Carolina 

FRANK A. LOBIONDO, New Jersey 

ROB BISHOP, Utah 

MICHAEL TURNER, Ohio 

JOHN KLINE, Minnesota 

MIKE ROGERS, Alabama 

TRENT FRANKS, Arizona 

BILL SHUSTER, Pennsylvania 

CATHY MCMORRIS RODGERS, Washington 

K. MICHAEL CONAWAY, Texas 

DOUG LAMBORN, Colorado 

ROB WITTMAN, Virginia 

MARY FALLIN, Oklahoma 

DUNCAN HUNTER, California 

JOHN C. FLEMING, Louisiana 

MIKE COFFMAN, Colorado 

THOMAS J. ROONEY, Florida 

TODD RUSSELL PLATTS, Pennsylvania 

ERIN C. CONATON, Staff Director 

PAUL OOSTBURG SANZ, General Counsel 

ROGER ZAKHEIM, Professional Staff Member 

CATERINA DUTTO, Staff Assistant 
(III) 

C O N T E N T S 

CHRONOLOGICAL LIST OF HEARINGS 

2009 

Page 

HEARING: 

Friday, July 24, 2009, Reforming the Military Commissions Act of 2006 

and Detainee Policy ............................................................................................. 1 

APPENDIX: 

Friday, July 24, 2009 ............................................................................................... 49 

FRIDAY, JULY 24, 2009 

REFORMING THE MILITARY COMMISSIONS ACT OF 2006 AND 

DETAINEE POLICY 

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS 

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

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

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

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

WITNESSES 

Johnson, Hon. Jeh Charles, General Counsel, U.S. Department of Defense ...... 4 

Kris, Hon. David, Assistant Attorney General, U.S. Department of Justice ...... 5 

APPENDIX 

PREPARED STATEMENTS: 

Johnson, Hon. Jeh Charles .............................................................................. 53 

Kris, Hon. David ............................................................................................... 58 

DOCUMENTS SUBMITTED FOR THE RECORD: 

July 21, 2009, letters to Mr. Skelton from the Department of Defense 

and the Department of Justice .................................................................... 67 

Department of Defense Military Commissions list submitted by Mr. 

Forbes ............................................................................................................ 70 

WITNESS RESPONSES TO QUESTIONS ASKED DURING THE HEARING: 

[There were no Questions submitted during the hearing.] 

QUESTIONS SUBMITTED BY MEMBERS POST HEARING: 

Mr. McKeon ....................................................................................................... 77 

Mr. Skelton ....................................................................................................... 75 

(1) 

REFORMING THE MILITARY COMMISSIONS ACT OF 2006 

AND DETAINEE POLICY 

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, Washington, DC, Friday, July 24, 2009. 

The committee met, pursuant to call, at 10:05 a.m., in room 

2118, Rayburn House Office Building, Hon. Ike Skelton (chairman 

of the committee) presiding. 

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

SERVICES 

The CHAIRMAN. The committee will come to order. Today’s hearing will continue the constructive conversation that we began last 

week with the top military attorneys of the services on reforming 

the Military Commissions Act of 2006. I look forward to hearing 

the perspectives of today’s distinguished witnesses on what amendments are needed to ensure that we finally end up with a system 

that can withstand judicial scrutiny and ensure that convictions 

stick. We certainly welcome our witnesses’ thoughts on what legislative changes are most necessary and how the existing law can be 

improved. 

In addition to military commissions reforms, today’s hearing addresses other key detainee policy issues such as the closure of the 

detention facilities at Guantanamo Bay, Cuba, and the law-of-war 

detention. We initially had hoped that a major report addressing 

these critical issues would have been released earlier this week, as 

required by the President’s Executive orders from the beginning of 

the year. 

Instead the Inter-Agency Task Force that was established to 

produce such a report received a six month extension and issued 

a preliminary report. The preliminary report reiterates the Administration’s proposed changes to the military commissions system 

and begins to describe the process and criteria that the Attorney 

General will use to determine whether to prosecute a detainee in 

Federal criminal court or in a military tribunal. It does not, however, make recommendations on the details of Guantanamo’s closure or on the process for continuing to detain enemy combatants 

or belligerents who, for different reasons, cannot be prosecuted in 

any of our courts. 

As the Detainee Task Force and the separate Inter-Agency Review Team that is evaluating all the files of the Guantanamo detainees finalize their work in the coming months, I am confident 

that they will recommend policies which will keep America safe 

and conform to American values. 
2 

Nevertheless, I want to offer a few words of advice from a former 

country prosecutor. Although I continue to believe that the closure 

of the detention facilities in Guantanamo will keep and help restore our country’s reputation and moral standing around the 

globe, I am concerned that time is running out for meeting the 

President’s deadline. With little more than five months to go, the 

lack of details on how Guantanamo should be closed, or detainees 

will be transferred, what prosecutions will be taken to protect communities, the costs associated with the closure decision, and the 

range of related considerations is, frankly, disturbing. A detailed 

plan should be proposed as soon as possible. To maintain congressional support for the closure decision, this forthcoming plan 

should safeguard America and be able to be implemented in the little time that is left. 

With regard to detainees who cannot be prosecuted but also cannot be allowed to return to the battlefield, the Administration 

should: 

One, clarify the President’s authority to detain these individuals, 

regardless of where they are held, and state whether legislation is 

needed to augment his authority to detain. 

Two, propose a process to replace the Administrative review 

boards in Guantanamo and similar bodies in Afghanistan with 

something that is more independent and viewed as legitimate. 

And lastly, third, indicate what factors will be considered to determine when an end of hostilities has been achieved and thus continued detention is no longer justified under the Supreme Court’s 

Hamdi decision and the laws of war. 

Before I turn to the gentleman from California, let me mention 

that today’s witnesses are the Honorable Jeh Charles Johnson, who 

is the General Counsel for the Department of Defense [DOD], and 

the Honorable David Kris, Assistant Attorney General, United 

States Department of Justice [DOJ]. 

Now I turn to my good friend, my colleague, the distinguished 

Ranking Member from California, Mr. McKeon. 

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

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

this hearing on this important topic, the Administration’s detainee 

policy and its plan for reforming the Military Commissions Act of 

2006. 

Let me begin by welcoming our witnesses, the Honorable Jeh 

Johnson, General Counsel for the Department of Defense, and the 

Honorable David Kris, Assistant Attorney General Department of 

Justice. Gentlemen, good morning. Thank you for being here. 

On October 22, 2009 the President stood before the American 

people and announced that he would uphold his political promise 

to close Gitmo within a year and suspend all military commissions 

pending a review by the Administration. I do not want to make this 

a political issue. I think if Senator McCain had been elected, he 

probably would have done the same thing. Let me say that at the 

outset. Additionally, the President announced the creation of a Detainee Task Force that would review America’s current terrorist de-
3 

tention policies and practices and recommended a path forward 

within six months. 

Mr. Chairman, many in Congress were skeptical of this approach. It seemed unwise to have a policy to close Gitmo without 

a plan. We immediately pointed to the danger of establishing a 

definite date to close Gitmo without first having identified an alternative location to detain these dangerous terrorists. Additionally, 

we warned that a policy vacuum from the executive branch would 

be filled by unelected judges who were not accountable to the 

American people. Our ultimate concern was that our military personnel serving in Iraq and Afghanistan could be vulnerable because 

of a lack of specific guidance from the Commander in Chief. 

I had the opportunity Monday with three of my colleagues to go 

to Gitmo, and it was quite an education. And I have a solid view 

of what I think should be done there now, and probably different 

from what I would have thought a week ago. But as we were flying 

back from Gitmo, we received notice that the Administration would 

not meet the President’s self-imposed six month deadline for meeting the President’s new detention policy. 

This delay is disturbing on many levels and deserves the attention of the American people. On one hand, I commend the President for the delay. On the other hand, it puts the trials, things that 

we are working on down there, in suspension that I think cause 

some real problems. So we are kind of between a rock and a hard 

place on this. 

Earlier this year I joined with many in Congress to support legislation which would have required the President to notify a State 

Governor and legislature 60 days prior to the transfer or release 

of a Gitmo detainee into their State; number two, obtain the consent of the State Governor and legislature to the transfer board release; and three, certify that the transfer or release of a Gitmo detainee would not adversely affect the national security of the 

United States or residents of the United States. 

Similar language was adopted by this committee in the House 

NDAA [National Defense Authorization Act]. In other words, Congress has made a bipartisan statement that it cannot fund any policy until it receives a plan. 

Given the six month extension for the Detainee Policy Task 

Force and the President’s self-imposed deadline to close Gitmo by 

January 2010, I am concerned Congress will be handed a predetermined outcome. This would be an unacceptable outcome. Given the 

vacuum of information surrounding the Administration’s detainee 

policy, today’s testimony takes on even greater importance. 

Let me briefly lay out my views on the issues I expect our witnesses should cover today. 

Mr. Chairman, a comprehensive detention policy must include a 

strengthened authority to detain and a preventative detention 

framework; a plan for detaining high-valued detainees captured 

outside Iraq and Afghanistan where they will not have habeas corpus review; a plan that ensures Federal courts do not release detainees from Gitmo into the United States; and a clear framework 

that does not favor prosecuting detainees in Federal criminal 

courts but prosecutes violations of the laws of war in military commissions; a commission system that protects sensitive sources and 
4 

methods and is tailored for the exigencies of the battlefield; and, 

finally, a plan that ensures that detainees we transfer or release 

from U.S. custody do not return to the battlefield and threaten our 

forces or citizens. 

It is the issue of transfer and release that gives me pause. When 

I visited Gitmo on Monday, one of our briefers showed us a picture 

of a former detainee that was released because he was compliant 

and seemed to no longer pose a threat. The picture showed him 

holding a child. It turned out we were wrong. He later blew himself 

up and killed 25 people in Baghdad. We have been wrong, according to DIA [Defense Intelligence Agency], 14 percent of the time. 

I fear we are getting it wrong in Iraq and Afghanistan, too. Just 

this week the New York Times reported that detainees released 

from American prisons in Iraq could have been the ones that carried out an attack on a restaurant, wounding scores of people. 

Every time we get it wrong, the consequences are fatal. We need 

to be honest about the risk of releasing detainees into Iraq, Afghanistan, and especially the United States. 

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

we have today will give this Congress and the American people a 

better understanding of the President’s detainee policy. 

Thank you and I yield back. 

The CHAIRMAN. I certainly thank the gentleman. 

We now will hear from our witnesses. We look forward to your 

testimony. 

Mr. Johnson, we recognize you first. 

STATEMENT OF HON. JEH CHARLES JOHNSON, GENERAL 

COUNSEL, U.S. DEPARTMENT OF DEFENSE 

Mr. JOHNSON. Thank you, Mr. Chairman, Congressman McKeon, 

members of this committee. You have my prepared advanced statement. I apologize for the lateness of getting that to you. In the interest of time I will—— 

The CHAIRMAN. Let me interrupt. Without objection, the statements of the two witnesses will be entered in toto in the record. 

Mr. JOHNSON. In the interest of time I will just read an abbreviated version. On January 22, 2009, as was pointed out, President 

Obama signed executive orders 13492 and 13493 which establish 

two interagency task forces, one to review the appropriate disposition of the detainees currently held at Guantanamo Bay, and another to review detention policy generally. These task forces consist 

of officials from the Departments of Justice, Defense, State, and 

Homeland Security, and from our U.S. military and intelligence 

community. 

Over the past six months, these task forces have worked diligently to assemble the necessary information for a comprehensive 

review of our detention policy and the status of detainees held at 

Guantanamo Bay. 

I am pleased to appear today, along with David Kris of the Department of Justice, to report on the progress the government has 

made in a few key areas, including especially military commissions 

reform. 

Let me begin with some general observations about the progress. 

All told, about 780 individuals have been detained at Guantanamo. 
5 

Approximately 550 of those have been returned to their home countries or resettled in others. At the time this new Administration 

took office on January 20, 2009, we held approximately 240 detainees at Guantanamo Bay. The Detainee Review Task Force has reviewed and submitted recommendations on more than half of those. 

So far, the Detainee Review Task Force has approved the transfer of substantially more than 50 detainees to other countries, consistent with security and treatment considerations, and a number 

of others have been referred to a DOJ–DOD [Department of Justice–Department of Defense] prosecution team for potential prosecution either in an Article III Federal court or by military commission. 

Additional reviews are ongoing and the process, we believe, is on 

track. We remain committed to closing the Guantanamo Bay detention facility within the one year time frame ordered by the President. 

A bipartisan cross-section of present and former senior officials 

of our government and senior military leaders have called for the 

closure of the detention facility at Guantanamo Bay to enhance our 

national security, and this Administration is determined to do that. 

The one other thing I would like to add is we talk a lot about 

closing the Guantanamo Bay detention facility, and as some of you 

on this committee know who visited there, the military personnel 

at that facility are truly professional. And so our discussions about 

closing that facility should in no way reflect upon what I believe 

is the first-rate dedication and professionalism of that guard force. 

Thank you. 

The CHAIRMAN. I certainly thank the gentleman. 

[The prepared statement of Mr. Johnson can be found in the Appendix on page 53.] 

The CHAIRMAN. Mr. Kris. 

STATEMENT OF HON. DAVID KRIS, ASSISTANT ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. KRIS. Thank you, Mr. Chairman, Representative McKeon 

and members of the committee. Thank you for inviting me here. 

This is my first appearance for this committee. For the Department 

of Justice, I normally appear before the Judiciary or the Intelligence Committees. So I thought I would just begin by way of introduction to explain the work that I do and how it relates to that 

of the committee, particularly with respect to military commissions. 

I lead the Justice Department’s National Security Division [NSD] 

which is the organizational unit that combines all of DOJ’s major 

national security functions and personnel. And our essential mission is to protect national security using all lawful methods consistent with civil liberties and the rule of law, including but not 

limited to prosecutions in Article III courts and in military commissions. 

In the previous Administration, the National Security Division 

assembled a team of experienced Federal prosecutors drawn from 

across the country to assist DOD’s Office of Military Commissions 

[OMC] and litigate cases at Gitmo. That assistance will continue. 

The man who led that team for NSD, who is a 15-year career DOJ 

prosecutor, is now my deputy, and a former member of the team 
6 

has since been recalled to Active Duty and is the chief prosecutor 

in OMC. 

As the President has explained, when prosecution is feasible and 

otherwise appropriate, we will try terrorists in Federal court. I 

prosecuted a group of violent extremists in the 1990s. Like their 

more modern counterparts, they engaged in what would now be 

called, I think, lawfare, and the trials were very challenging. But 

the prosecution succeeded not only because it incarcerated the defendants, some of them for a very long time, but also because it deprived them of any shred of legitimacy in their antigovernment beliefs. 

Military commissions can help do the same for those who violate 

the laws of war. That is, not only detain them for longer than 

might otherwise be possible under the laws 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 the Congress 

is a tremendous step in that direction. You know from my written 

testimony and that of Mr. Johnson, that the Administration very 

much appreciates the pending legislation and supports much of it. 

Although I can’t refer here to precise numbers, as Mr. Johnson 

said, a significant number of cases have been referred for possible 

prosecution by joint teams of officials from DOJ and DOD. That review is governed by a protocol that we have released publicly, and 

I think it would be worth just explaining the three essential principles that are embodied in that protocol. 

The first is, as the President stated in his speech at the National 

Archives, we need to use all elements of our national power to defeat our adversaries, and that is including but not limited to prosecution in both Article III courts and in military commissions. 

Second, Article III courts which have unquestioned legitimacy 

are also effective in protecting national security. And military commissions as we propose to reform them, which have unquestioned 

effectiveness, are also fair and legitimate. 

Now, I suspect there are many people in this room or perhaps 

elsewhere who might agree only with the first part of that sentence 

that I just stated, and there will be others who agree only with the 

second part. But we think both parts are right, and that leads really to the third and final principle. 

The choice between the two available prosecutorial for a need to 

be made by professionals based on a close and careful review of the 

facts of each case, using criteria established by policymakers, and 

these are reflected in the protocol. We cannot afford, consistent 

with the first two principles I have discussed, to adopt abstract 

rules that artificially constrain and limit our options. That would 

make us less effective than we otherwise would be in fighting terrorism. 

Thank you. 

The CHAIRMAN. I thank the gentleman. 

[The prepared statement of Mr. Kris can be found in the Appendix on page 58.] 

The CHAIRMAN. It seems to me there are two polestars in this 

whole issue before us. The first is that any conviction, whether it 

be by a tribunal or a Federal court, meet judicial scrutiny and that 
7 

those convictions stick, that they be upheld. The same polestar is 

the necessity of keeping American citizens safe. Whatever comes to 

pass, this must—these two polestars must be kept in mind. 

I will not take a great deal of time, but I do wish to ask about 

the one category that seems to be the most troubling. And Mr. 

Johnson, I will call upon you to give us your best legal opinion. 

There are some in custody in Guantanamo today that could not 

be tried in a Federal court, and, even with relaxed hearsay evidence, could not be tried in a tribunal. But we know full well by 

other evidence, including their own statements, that they are highly dangerous, and, would, should they be turned loose, attempt to 

take American lives as well as lives of our allies. 

What do you propose to do with that group of inherently dangerous inmates at Guantanamo if you can’t try them in either tribunal—but you know full well what they will do if turned loose? 

Mr. JOHNSON. Mr. Chairman, thank you for that question. The 

ability and the authority of our United States military to capture 

and detain the enemy is as old as the Army itself. It is a basic concept inherent in what the U.S. military does: capture and detain. 

And as recently as 2004, the Supreme Court, in the Hamdi decision, reiterated that inherent within the authorization granted by 

Congress in 2001 to go to war was the ability to detain those who 

are captured. 

Now, this President and this Administration in March revised 

the definition of our detention authority to more closely align detention authority with the authorization that Congress passed in 

2001, the AUMF, the Authorization for Use of Military Force as informed by the laws of war. We believe that that definition, which 

we are now using in the courts with respect to Guantanamo, is the 

appropriate and sufficient legal authority to detain people who you 

have referred to, Mr. Chairman, as those who are threats to the 

American people, threats to our national security, but for whom we 

do not choose to prosecute. 

The CHAIRMAN. In other words, they could be held as long as the 

war continues. 

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

speech is that for that category of people, if we have such people 

at the end of this review process, there should be clear, defined 

legal standards and there should be a periodic review, so that if we 

prevail in a habeas case and we don’t prosecute them, we are not 

just throwing away the key. There is a periodic review that ought 

to be in place to do a form of threat assessment. 

The CHAIRMAN. But how long do you keep them? Until they get 

old and gray and pass away? Or how long can you legally keep 

them under your test, under your legal test? 

Mr. JOHNSON. Under traditional concepts, as you pointed out, 

you keep them until the end of the war. 

The CHAIRMAN. But there is no one in an insurgency or a guerrilla warfare to run up the white flag and sit down and sign a 

peace treaty. So what then? 

Mr. JOHNSON. That is absolutely correct. We are not going to see 

a peace treaty signed on a battleship, which is why we believe that 

some form of periodic review—I don’t know whether that is every 

couple of months, every year or so—is appropriate to do a threat 
8 

assessment of that particular detainee. And that part of the work 

of this task force is to develop that form of periodic review. 

The CHAIRMAN. As the gentleman from California pointed out, 

there has been one from Afghanistan that was reengaged in the 

conflict, and I have in front of me an unclassified documentation 

of others that have been repatriated and have reengaged in one 

place or the other. 

How do we assure the American people that is not going to happen? 

Mr. JOHNSON. What I can assure the American people is that 

when I and my colleagues at the Department of Defense go through 

this review process and look at threat assessments, look at the 

classified and unclassified evidence that we have about each detainee, the thing that weighs most on my mind certainly is, is this 

a person who is going to return to the fight? And to me that is the 

most important factor, evaluating that consistent with the law, consistent with the rule of law. So it is a thing that motivates us one 

way or another, frankly. We are all very cognizant of those statistics. 

The CHAIRMAN. Since January the 20th of this year, to your 

knowledge, have any of those that have been released become involved in reengagement? 

Mr. JOHNSON. Sitting here right now, I don’t think I could give 

you that information. Sorry. 

The CHAIRMAN. Have some been released since January the 20th 

of this year? 

Mr. JOHNSON. Certainly some have been transferred to other 

countries. Mr. Binyam Mohamed, for example, was sent back to the 

U.K. [United Kingdom], I believe. 

The CHAIRMAN. Do you understand my concern? 

Mr. JOHNSON. I certainly do. It is my concern as well. 

The CHAIRMAN. Mr. McKeon. 

Mr. MCKEON. Thank you, Mr. Chairman. The Administration 

has expressed a preference for trying the detainees in Article III 

courts. Do you share that same preference? 

Mr. JOHNSON. Is that for me, Congressman? 

Mr. MCKEON. Both of you. 

Mr. JOHNSON. Mr. Kris and I have worked out a protocol for determining when a case should be prosecuted in Article III versus 

military commissions. I think the document is public, and basically 

what the protocol says is that 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 the document goes through three sets of factors that 

are kind of traditional factors prosecutors look at to determine 

whether a case that is prosecutable should be prosecuted in one 

forum or another. I suspect that will be a fact-intense, case-by-case 

review, sir. 

Mr. MCKEON. One of the concerns I have in looking at that is 

it seems like you go through a preliminary judgment then. Do you 

think that that would prejudice a case? 
9 

Mr. JOHNSON. The document itself—I was concerned about that 

very issue when we negotiated the document, and I would not want 

some line prosecutor or the media to think that we prejudged a 

case because we have referred it to one forum or another and that 

therefore you must indict that case. 

So at the end of the document, it refers to the independence of 

authorities; that however the protocol works, it is still up to the 

U.S. attorney or the chief prosecutor in the military commission to 

exercise their own independent judgment in making the determination that a case can and should be prosecuted. You can’t, for example, eliminate grand juries that are going to make their own decisions in these cases, nor should we. 

Mr. MCKEON. Is there a concern that by bringing them—I guess 

if you tried them under Article III you would bring them to the 

United States, try them in a Federal court. 

Mr. JOHNSON. I would assume so; yes, sir. 

Mr. MCKEON. Is there any concern that they—because that 

would happen, then they would pick up additional constitutional 

rights that some may feel they shouldn’t have? 

Mr. JOHNSON. Well, Mr. Kris could speak to that better. He is 

in charge of that process. But, you know, we obviously do have the 

rights that we enjoy in Federal criminal prosecutions, reflected in 

the Constitution, in the rules of Federal criminal procedure. And 

I think DOJ has a pretty good track record in cases where we have 

prosecuted alleged terrorists. 

Mr. KRIS. I would just add sort of two points, I guess, Congressman. With respect to the way the protocol is going to work, the 

first point is that the referrals are made to joint teams, DOD prosecutors and DOJ prosecutors who are going to work together on 

these cases to try to come up with—— 

Mr. MCKEON. We—When we met with the—the four of us that 

went to Guantanamo Monday, we had an opportunity to meet with 

the lead prosecutor. His preference was that all—all of the trials 

be done in the military—by the military commission. 

Mr. KRIS. Okay. I mean that is really—that is not the Administration’s position that we make a bright-line determination, sitting 

here today, that all of the cases be prosecuted there, but, rather, 

that they be worked up and evaluated in a case-by-case, fact-intensive way, looking carefully at all of the elements of the case and 

then make a decision about which is the appropriate forum. But 

that we do that working together the way Jeh and I have worked 

together on the protocol. 

And the second, I guess, point to make about it is that these kind 

of forum selection choices are not alien to government officials. 

They are similar to choices that have to be made all the time, 

whether it be between a Federal and a State court, between a U.S. 

court and a foreign court, between a Federal court and a UCMJ 

[Uniform Code of Military Justice] proceeding—— 

Mr. MCKEON. This situation is kind of unique, though, with the 

terrorist situation and the problems we have had leading up to 

this. 

Mr. KRIS. You are absolutely right. 

Mr. MCKEON. Are you concerned at all that dividing up into two 

systems and the preference that going to one or the other might 
10 

buttress the view that military commissions are second-class type 

courts? 

Mr. KRIS. It is a very good point. First, I don’t mean to minimize 

the challenges associated with this. It is a unique situation. We are 

working hard, Jeh and I and people in our shops, to do this—to do 

this right. It is difficult, challenging, consequential. We think we 

can do it. We are set up to do it. 

I think it is vitally important on the last point you made to understand we are working very, very hard with the Congress now. 

We are actively discussing amendments to the Military Commissions Act with the Senate counterpart of this committee. 

Mr. MCKEON. You are working with the the Congress. Who in 

the Congress are you working with? 

Mr. KRIS. The Senate Armed Services Committee, as you you 

pointed out, has reported out a Levin—Senator Levin’s bill—— 

Mr. MCKEON. They passed a bill last night—and I have it here— 

that they say it is the sense of the Congress that the preferred 

forum for the trial of alien unprivileged enemy belligerents subject 

to this chapter for violations of the law of war and other offenses 

made punishable by this chapter is trial by military commission 

under this chapter. 

Mr. KRIS. I am aware of that and I appreciate that that is the 

sense of that committee and a possible sense of the Congress. What 

I meant was that—just to respond to the second-class justice point, 

we are investing and the Congress is investing a huge amount of 

energy and effort to reform the Military Commissions Act in a variety of ways, as you know, and we think with those reforms the 

military commission system would not be a second-class justice system. It would be a first-class—— 

Mr. MCKEON. I don’t think it is. What my question was do we 

think that the perception would be that it is because of this prejudging and moving some to one trial, some to another? 

Mr. KRIS. We don’t want that, we don’t think that, and we don’t 

want to prejudge. We want to work these cases one at a time and 

make a choice on a case-by-case—— 

Mr. MCKEON. But there has to—by definition, there will have to 

be some judgment made if you decide one goes here and one goes 

there. 

Mr. KRIS. That is absolutely right. 

Mr. MCKEON. And then—and we really can’t control the perception of that process once the media or other people get hold of it. 

We can’t control how the perception will be. 

Mr. KRIS. Well, it is certainly true that I don’t make any claim 

to control the media but Mr. Johnson and I are here—— 

Mr. MCKEON. Probably nobody in this room does. 

Mr. KRIS. But we are here to tell you, and I think to tell people 

who are listening to this, that it is not the case that military commissions as we are proposing to reform them will be second-class. 

Mr. JOHNSON. Congressman, if I could just add to something. 

Mr. MCKEON. Sure. 

Mr. JOHNSON. Captain John Murphy is a career professional. He 

is the prosecutor, the chief prosecutor you referred to a moment 

ago. He has spent 17 years as an assistant U.S. attorney. Like 

many of the military officers I encounter, I would expect him to be 
11 

bullish and optimistic and proud of his mission. So it doesn’t surprise me that he would tell you that he thinks we should handle 

all these cases in military commissions and that he thinks he can 

do so. 

Mr. MCKEON. He is not alone in that. We had a hearing last 

week where we had the JAGs [Judge Advocate Generals] here from 

each of the services, and I think they also were of the same opinion. 

So, Mr. Chairman, I have another question but I think I may 

have used up my time. If we can come back. 

The CHAIRMAN. I am sure we will have a second round. 

I am trying to sit in your shoes to make a determination as to 

which forum in which to try a detainee. My judgment would be 

your decision would be based upon what type of evidence—in particular, what type of hearsay evidence could or could not be offered 

in each of the two tribunals. In a Federal court before a jury, there 

are certain hearsay rules that are quite strict. In a tribunal my understanding is that certain affidavits, certain statements that 

would violate a court hearsay rule, would be admissible and would 

cause your recommendation to be in a tribunal as opposed to a Federal court. 

Now, you did determine that a detainee by the name of Ghailani 

should be tried in a Federal court, and he was transferred to the 

Southern District of New York for prosecution in the Federal system. What factors went into determining that, if you may say so, 

in our forum today? 

Mr. KRIS. Let me say what I can say, which is Ghailani, the man 

who has been transferred, is a bit of a unique case because he was 

already under indictment for the East Africa Embassy bombings in 

the Southern District of New York where others who had been indicted with him had already been tried. So I think it is appropriate 

to look at that case as a bit of a unique—— 

The CHAIRMAN. That is a bit different circumstance; is that correct? 

Mr. KRIS. Yes, it is a bit of a unique case given the fact that he 

was already—— 

The CHAIRMAN. All right. Fine. Thank you. 

Mr. Ortiz. 

Mr. ORTIZ. Thank you, Mr. Chairman. And I have a question for 

whoever can answer this question, for both of you. 

What percentage, if any, of the current detainee population in 

Guantanamo are not accused of being associated with al Qaeda or 

the Taliban, have not fought against the United States or coalition 

forces in Afghanistan, Iraq? Do we have a number that are still 

there but have not been accused of aligning themselves with the 

Taliban or any of the terrorist groups? 

Mr. JOHNSON. Congressman Ortiz, I don’t think I can give you 

exact numbers. But what I can say about the current population 

at Guantanamo is that the overwhelming majority of them were 

captured in what we would consider the conventional battlefield 

circumstances in Afghanistan. So I hope that answers your question. I can’t give you exact numbers about allegiance and so forth. 
12 

Mr. ORTIZ. They were picked up because of their association, not 

because they were involved with any of these terrorist groups; am 

I correct? 

Mr. JOHNSON. The overwhelming majority were captured in conventional battlefield circumstances, where our military was in Afghanistan pursuant to the authorization of this Congress in 2001 

to engage the Taliban and al Qaeda forces. 

Mr. ORTIZ. Now, have any of these people that I just mentioned, 

have they been tried by any of the courts? 

Mr. JOHNSON. We have had three convictions thus far in military 

commissions. Many of us, obviously, believe that we ought to be 

able to move more efficiently in those cases, but so far there have 

been three convictions. 

Mr. ORTIZ. But you don’t know the number? I mean it could be 

five, it could be 50, it could be 100 who are still detained under 

those circumstances? 

Mr. JOHNSON. Who are not part of al Qaeda or the Taliban? 

Mr. ORTIZ. Right. 

Mr. JOHNSON. I suspect that the overwhelming majority are 

aligned with those combatant forces. I don’t have exact numbers for 

you. 

Mr. KRIS. Congressman, if I could just add, I am not sure this 

would be responsive to your question, but almost all of the 240 detainees who were at Gitmo as of January 20 have filed habeas corpus petitions with the United States District Court. And it is 

through the habeas corpus process that their detainability under 

the law of war is being tested, subject to judicial review by independent Article III judges. 

That determination analytically is distinct from a secondary 

question—which the word ‘‘accused’’ in your question brings to 

mind—which is how many have then also been possibly subjected 

to prosecution for not just being an unprivileged belligerent or an 

enemy combatant, or whatever the term is, sort of under the law 

of war, but actually being accused of crimes or war crimes. That 

is a smaller subset. But the larger population are having their detention tested through habeas corpus. 

Mr. ORTIZ. I have just one more question, Mr. Chairman. 

Mr. Johnson, you stated before the Senate Armed Services Committee that it was the position of the Administration that if a detainee was acquitted of alleged crimes, the Administration may still 

have the authority to detain that individual under laws of the war. 

I mean, if they had been tried and they were found they were not 

guilty. This is something that I myself cannot understand, and 

maybe the American people don’t understand either. Maybe you 

can elaborate a little bit on that. 

Mr. JOHNSON. It is my view as a lawyer, as a lawyer for the Defense Department, and the view of others that as a matter of legal 

authority—not as a matter of circumstances or policy or judgment—but as a matter of legal authority, if there is proper law-ofwar detention authority for a particular individual, that is true irrespective of what happens in any eventual prosecution. 

So in your question, if the individual is acquitted, that would be 

irrelevant to law-of-war detention authority. Whether or not we 

ever actually did that as a matter of policy or judgment is to me 
13 

an entirely different question, dependent upon the circumstances, 

what happens in that particular case, and so forth. 

I would point out that in one of the three cases, one of the three 

convictions, the individual received a life sentence. The other two 

received sentences and they have been transferred. 

Mr. ORTIZ. The reason I ask this question is going back to Mr. 

McKeon’s question about that individual who was turned loose, he 

goes back and he kills 25 people. I am just wondering if all these 

people who believe that they have done nothing wrong, that they 

become so angry and so indoctrinated while they are there, that 

when they are turned loose they go back and they turn against us. 

This is one of the reasons I am asking you this question. 

Mr. Chairman, I know my time is up. I yield back 

The CHAIRMAN. I thank the gentleman. We have, it appears, five 

votes, one 15-minute and four 5-minute votes. We will do our best 

to squeeze two questioners in before we go. Mr. Bartlett and Mr. 

Taylor. 

Mr. Bartlett. 

Mr. BARTLETT. Thank you very much. 

I am, by a number of years, the oldest member of this committee. 

I remember when Franklin Delano Roosevelt defeated Herbert 

Hoover. I lived through the Great Depression. And you can’t know 

how deeply grateful I am that this really poor Depression-era kid 

could have the opportunity to work and achieve and one day serve 

in this Congress. I say that because I want you to understand the 

context in which I make these statements and ask my questions. 

Are there not, or could there not be established world courts in 

which these prisoners could be tried? 

Mr. JOHNSON. I am sorry. Could you repeat that sir? 

Mr. BARTLETT. Are there not, or could there not be established 

world courts in which these prisoners could be tried? 

Mr. JOHNSON. I would not rule out the possibility, sir. Others 

have called for a national security form of court. I can imagine circumstances under which it is plausible and appropriate to prosecute suspected terrorists in an international-type forum. We are 

trying to deal with the current population right now and the issues 

we have—— 

Mr. BARTLETT. I understand. I understand. 

Mr. JOHNSON. And we have got a bill that came out of the Senate 

that we think is a pretty good bill for a lot of reasons. There are 

areas where we would invite this body to consider amendments. 

But in theory I can imagine circumstances where that might be appropriate, sir. 

Mr. BARTLETT. Thank you. 

In many things that we do, there is an inherent tension between 

national security and our international image, in the perceptions of 

millions around the world, about who we are and what we do. 

When I mention military tribunals to my constituents, they have 

the inherent initial response that I had when I first heard the word 

and we were going to do this, and that is a ‘‘banana republic,’’ a 

trial at midnight and execution at dawn. 

When you were children, I am sure your mother told you what 

my mother told me, and that is that you shouldn’t borrow trouble. 

I regret that we are where we are today, facing the necessity of de-
14 

ciding how we try these criminals in either one of these two courts. 

I would have wished that we could have avoided—that obviously is 

a very dissentious and difficult matter, or we wouldn’t be here 

today. I wish we could have avoided this by deciding at the very 

beginning that they should have been tried in international courts. 

No matter what we do, we run the risk of incurring considerable 

ill will around the world. 

Thank you very much for your attention to this, and I hope you 

can help guide us through this with the least damage. Thank you 

very much. 

The CHAIRMAN. I certainly thank the gentleman. 

Mr. Taylor and then we will break for the votes. Mr. Taylor. 

Mr. TAYLOR. Mr. Chairman, I am going to yield to one of our 

resident JAG officers, Mr. Murphy. 

Mr. MURPHY OF PENNSYLVANIA. Thank you, Mr. Taylor and 

thank you, Mr. Chairman. I appreciate it. 

Mr. Johnson and Mr. Kris, thank you for your service to our 

country. We appreciate it. There has been a lot of conversations 

and discussions in this committee and the Congress about our servicemen and women issuing Miranda warnings to terrorists captured on the battlefield. And, frankly, to hear some Members of 

Congress tell it, you would think that every one of our service 

members have been turned into police officers who are forced to 

worry about reading a terrorist his rights rather than completing 

his mission and keeping their fellow soldiers safe. 

We all agree, we all agree that the job of our Nation’s military 

is to fight and win wars, not law enforcement or evidence collection. And I am glad that you are here today testifying before us, 

because I am hoping you could set the record straight on this issue 

once and for all. I know when we have spoken with General 

Petraeus, he is comfortable with what his soldiers are doing in both 

Iraq and Afghanistan. 

So let me be—I have a couple questions. One, how often are suspected terrorists captured on the battlefield and immediately read 

the Miranda warnings, and do these warnings ever occur on the actual battlefield itself? So if you could answer that, I would appreciate it. 

Mr. JOHNSON. Congressman, thank you for that question. And 

thank you for your service to our country. The Congress breeds 

some really terrific JAG officers. 

Mr. MURPHY OF PENNSYLVANIA. Thank you, sir. 

Mr. JOHNSON. I—In response to that question and concern, I sent 

a letter to the Chairman, addressing this issue, and I would just 

read the first two paragraphs of the letter: 

‘‘I write to correct a serious misimpression that has arisen in recent weeks that the United States military may be providing Miranda warnings to terrorist suspects in Afghanistan. This is completely inaccurate. 

‘‘The record should be clear: The essential mission of our Nation’s 

military in times of armed conflict is to capture or engage the 

enemy; it is not evidence collection or law enforcement. Members 

of the U.S. military do not provide Miranda warnings to those they 

capture.’’ 
15 

Now, let me go on to say that in instances where the government 

chooses to go down the road of prosecution of a suspected terrorist, 

that too is a member—a mission to enhance national security, to 

bring to justice suspected terrorists. That is part of ensuring national security. One is not an alternative to the other. Thanks. 

Mr. MURPHY OF PENNSYLVANIA. Well, thank you, gentlemen. 

And, Mr. Chairman, I know we have votes; so I will yield back 

the remainder of my time. Thank you. 

The CHAIRMAN. I thank you very, very much. For your information, that letter was entered into the record during the recent 

record on the resolution of inquiry that we took up this past week. 

And if anyone on the committee wishes a copy of it now, we will 

make sure the staff gets it to you. 

Mr. FORBES. Mr. Chairman I would like to—Mr. Chairman—— 

The CHAIRMAN. We will—I tell you—to make it easy. We will just 

make sure everybody on the committee gets a copy of that. 

We will now recess until the end of the votes and, gentlemen, we 

shall return. Thank you. 

[Recess.] 

The CHAIRMAN. The hearing will resume. 

Before each member is the letter dated July 21, addressed to me 

from the general counsel in the Department of Defense and from 

the Office of the Attorney General. 

[The information referred to can be found in the Appendix on 

page 67.] 

The CHAIRMAN. Mr. Akin. 

Mr. AKIN. Thank you, Mr. Chairman. 

I am not a lawyer, and some of you have been getting into some 

fine points here, but perhaps an engineer’s perspective may be the 

way some Americans are looking at this whole situation. 

I just want to review, generally, the facts. That is, in January 

the President made a decision to close Gitmo. I assume that is 

right. Is that true? 

Mr. JOHNSON. Yes, sir. 

Mr. AKIN. And we have about 229 people in Gitmo, is that right? 

Mr. JOHNSON. That is also true. 

Mr. AKIN. And a good number of those are some bad hombres, 

in the parlance. 

Mr. JOHNSON. Thank you, sir. 

Mr. AKIN. I understand lawyers want to parse terms, but these 

guys would kill American citizens if they got out and if they were 

able to do so, a good number of them. 

Mr. JOHNSON. I think we should assume that, yes, sir. 

Mr. AKIN. Okay. So then my question becomes, kind of, it seems 

like getting more toward the bottom line. 

First of all, does the Administration plan to release detainees 

into the U.S.? I am not asking for a very lawyerly—just either 

‘‘yes’’ or ‘‘no’’ or ‘‘maybe’’ or ‘‘I don’t know’’—a fairly short answer. 

Are we going to release these detainees into the U.S.? 

Mr. JOHNSON. No. 

Mr. AKIN. No. Does the Administration plan to transfer detainees 

into the U.S.? 

Mr. JOHNSON. What we plan to do, consistent with the national 

security interest and the safety of the American people, is close 
16 

Guantanamo, move them to another facility, consistent with all of 

those interests. 

Mr. AKIN. Yeah, but that still didn’t really answer the question. 

Are we going to transfer the detainees to the U.S.? 

Mr. JOHNSON. We are considering the possibility of a number of 

alternative locations. Some may be transferred to other countries. 

Some will be transferred to Department of Justice custody for eventual prosecution. And some will be transferred to another facility. 

Where that facility is I could not tell you at this moment. 

Mr. AKIN. So it is not absolutely clear, but it is quite possible 

that some of the detainees could be transferred to the continental 

United States. 

Mr. JOHNSON. It is possible that, consistent with the safety of the 

American people and our national security interests, we will move 

them to a location in the United States. That is possible. 

Mr. AKIN. Okay. And would they be brought here if we were 

going to do a trial here? 

Mr. JOHNSON. Yes. 

Mr. AKIN. Okay. And that would be maybe one of the conditions 

that would bring them here, if we are going to do a trial, especially 

if it was going to be a civil-type trial, right? 

Mr. JOHNSON. Well, it has already been the case that some detainees have been transferred to the United States for criminal 

prosecution. 

Mr. AKIN. Okay. 

Now, another piece of the equation seems to be that we could increase the barrier in terms of making it harder to figure out some 

other country to send them to if we become more picky about the— 

some other country’s foreign rights kind of prac—I mean human 

rights kinds of practices. Is that correct? 

Mr. JOHNSON. We do not transfer detainees, or anybody else for 

that matter, to a country that we believe will torture them. 

Mr. AKIN. Right. Now, is there any movement among some of the 

different groups? I guess since the President made the decision we 

are going to close Guantanamo Bay, six months has elapsed. And 

so I guess people have been studying this whole deal. I assume 

that is what you have been doing for the last—— 

Mr. JOHNSON. We have spent a lot of time studying this, correct, 

sir. 

Mr. AKIN. Right. Okay. And, in the process of that study, is there 

any recommendation that we raise the bar in terms of where we 

could send these prisoners if they were going to go to a foreign 

country, in terms of saying there maybe they don’t treat prisoners 

humanely enough or don’t give them enough food or have enough 

chocolate chip cookies or whatever it happens to be? 

Is there anything we are going to do which is going to make it 

harder for us—or are you going to recommend is there anything we 

are going to do to make it harder for us to transfer prisoners to 

a foreign country? 

Mr. JOHNSON. Well, another consideration in the equation, sir, is 

assuring ourselves that the country to which we send a detainee 

will provide adequate security conditions so that they are not just 

released into the general population if we think that that detainee 

is a security threat. 
17 

So even in a circumstance where the country says, ‘‘Yeah, I 

would love to have them back,’’ we are not going to do that unless 

we are satisfied that they are going to provide adequate security 

conditions for accepting them back. That is part of the equation. It 

is not just the consideration of, are you going to torture that person? 

Mr. AKIN. Right. I guess there is two sides to the equation. You 

just answered the other half of the question, that there may be people that would not be able to detain them and give them the proper 

security to make sure that they don’t get out. 

The other question, though, is, are we going to limit the number 

of countries we could send them to by increasing the standards in 

terms—in another sense, in terms of their way that they handle 

prisoners? 

Mr. JOHNSON. I know what the current standard is, sir, and that 

is what we are applying. 

Mr. AKIN. The current—but you are not advocating that we are 

going to change that current standard. 

Mr. JOHNSON. I don’t know of any other standard that we would 

consider utilizing at the moment, sir. 

Mr. AKIN. Okay. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank the gentleman. 

Dr. Snyder. 

Dr. SNYDER. Thank you, Mr. Chairman. 

Thank you all for being here. And we very much value your opinion on these issues and so many others. 

When you all were discussing somewhat earlier the issue of forums, which forum do you use, military commissions or the Article 

III courts—just coincidentally, today’s paper, the Arkansas Democrat-Gazette, has a story about the case of Abdulhakim Mujahid 

Muhammad, a name probably you all don’t know because he is not 

one of your detainees. He is the young man from Tennessee that 

came to Little Rock and shot the two soldiers, Private William 

Long, who died, and Private Quinton Ezeagwula. They were in uniform, on duty, outside a Federal recruit depot. They were targeted, 

in his words—he has been making press statements—that because 

they were part of our war in Afghanistan. He actually has traveled 

to, I think, Yemen. It is not clear what all his background has 

been. 

But he is going to be arraigned, not in a military commission, not 

in a Federal court, in Pulaski County Circuit Court, on a capital 

murder charge, amongst some other felonies. So this—it brings 

home the complexity of these issues, because we certainly, potentially, have other folks that will fall under the jurisdiction of U.S. 

authorities other than from Iraq and Afghanistan, including some 

people in our own country. 

I wanted to ask specifically—and I asked this question the other 

day, and didn’t—and people didn’t know what the answer was. If 

a detainee in Guantanamo today were to kill another detainee, 

what body of law would govern and what would happen to that— 

I assume that there would be criminal charges brought, one detainee killing—one human being killing another human being. 

What body of law would be—would determine? 
18 

Mr. KRIS. I mean, I think that, especially after the Rasul decision, that Gitmo is within the special territorial and maritime jurisdiction of the United States. So this is something I should check 

to make sure I can give you an authoritative answer, but I do think 

there would be Federal jurisdiction in an Article III court over a 

crime committed there. 

Dr. SNYDER. What I think is interesting about your answer—and 

when we had the JAGs the other day, very nice guys, very professional guys, they did not know. And what confuses me about that, 

I mean, we have had Guantanamo there for several years now. We 

hear stories that our guards are at great risk. I assume that they 

have been hit. I mean, there is an opportunity to bring felony 

charges and, I would think, convictions, because we’ve got an evidence trail right there within the confines. 

I am curious why we haven’t pursued any charges against detainees if they actually have committed what we think were— 

maybe I am wrong. Maybe it has all been patty-cakes down there, 

but that is not the impression I have had. 

Mr. JOHNSON. Well, in fairness to our T–JAGs—you ask a very 

good question, so we—— 

Dr. SNYDER. They said that very same thing. 

Mr. JOHNSON. We had the benefit of advance notice of your question. But I agree with Mr. Kris’ assessment. 

Dr. SNYDER. But the reason I reacted to your answer, you 

‘‘thought’’ it would be, which tells me you have not prosecut—that 

there have been no prosecutions for actions committed by detainees 

while on Guantanamo during their time. 

And my only point is, if you have got somebody you are trying 

to lock up somewhere or deal with in a definitive way and you don’t 

have evidence for exactly what they did, a harder case to prove 

whether it was in Afghanistan or Iraq or in the United States or 

wherever it was, but then they actually do something that you can 

potentially convict and lock them up for 20 years, I would think 

that there would have been things that would have occurred that, 

yes, we can convict this person on this charge. 

But—so, I don’t know. I wondered if it is because people are 

afraid to actually bring some kind of charge, that it might say, 

well, they would fall under this court or these laws. But do you 

have any idea why that hasn’t occurred? 

Mr. JOHNSON. As I sit here now, I can’t tell you for certain that 

there haven’t been prosecutions. I know that there are a number 

of disciplinary-like measures that are taken for misbehavior, misconduct, so forth. 

Dr. SNYDER. Yeah. I mean—it may be this is a very well-run facility and people are not—don’t have the opportunity to do some 

really bad things. I wanted to—if you have any additional information about that, I would be interested. 

My last question I think you have touched on, but the mention 

in Mr. Akin’s question about whether folks would come up here. I 

assume people come up to the United States, or have or potentially 

could, for medical reasons, that Guantanamo may not have the 

kind of—you know, if you have really—need a tertiary center or 

something. 

I am sorry. Time is up, apparently. 
19 

The CHAIRMAN. Thank the gentleman. 

Mr. Forbes from Virginia. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Johnson, Mr. Kris, first of all, let me thank you for being 

here, for all of your service. You are good guys. And forgive me for 

having to talk quick and ask for you to be concise in your questions, but I only have five minutes. 

I was with the group that went down to Guantanamo on Monday. We did meet with your chief prosecutor, Mr. Johnson. He is 

under your jurisdiction, I would take it. Is that correct? Under your 

department? 

Mr. JOHNSON. The Office of General Counsel has supervisory authority over the OMC. 

Mr. FORBES. You are familiar with Mr. Murphy and his competence. And I take it, he is the best guy we have to be in that 

chief prosecutor position or he wouldn’t be there? 

Mr. JOHNSON. He is an experienced, professional prosecutor, yes, 

sir. 

Mr. FORBES. I want to narrow in on the 9/11 defendants. Because 

we talk about detainees; sometimes we don’t have faces with 

names. But as to the 9/11 defendants who are detainees there who 

are undergoing this prosecution, it has been a referral, that is 

being prosecuted, or was being prosecuted. 

The chief prosecutor said his goal was to get justice for the victims of terror and for the citizens of the United States. Is that a 

fair and just goal? 

Mr. JOHNSON. That is a fair and just goal for the United States 

Government, yes, sir. 

Mr. FORBES. Is that the goal of this Administration? 

Mr. JOHNSON. Yes, sir. 

Mr. FORBES. If that is the case and that is a standard, should 

that standard be changed simply because someone has a perception 

that that standard is wrong? 

Mr. JOHNSON. I don’t believe so. 

Mr. FORBES. In that particular case, then, I want to go to the 

9/11 attacks and the prosecution that is undergoing there. Are you 

aware of the number of pleadings and motions that have already 

been resolved in that one proceeding alone? 

Mr. JOHNSON. I know that, in that case and in several other of 

the pending cases, we have as many as perhaps a hundred pretrial 

motions that have been resolved, yes, sir. 

Mr. FORBES. In that particular case—and, Mr. Chairman, I 

would ask that this be submitted as part of the record. It is from 

the Department of Defense, listing 56 motions that have already 

been resolved in that one proceeding. 

The CHAIRMAN. Without objection. 

[The information referred to can be found in the Appendix on 

page 70.] 

Mr. FORBES. And, of those 56, Mr. Murphy told us when we were 

down there on Monday, the Executive order the President signed 

didn’t just talk about a review, as you mentioned earlier, but it actually stayed the proceedings for the military tribunals going on. 

Is that correct? 

Mr. JOHNSON. Yes, sir. 
20 

Mr. FORBES. And, on that, the chief prosecutor told us that that 

is now necessitating that he go in and ask for a continuance on 

September 11th, which he said is far from certain that he will be 

granted. Are you familiar with the fact that he is going to have to 

do that in that proceeding? 

Mr. JOHNSON. The continuances have, in fact, been granted in 

the 9/11 case. 

Mr. FORBES. And are you familiar with the fact that he has to 

ask for one on September 11th because he can’t go forward with 

this trial now, with this tribunal? 

Mr. JOHNSON. It is currently stayed. 

Mr. FORBES. And he also, then, told us that there is a very good 

chance that the judge, since he has already asked for continuances, 

as you mentioned, had—may not grant that continuance. And if the 

judge doesn’t grant that continuance, he has said that he will have 

to dismiss the charges against the defendants because he can’t 

move forward based on this Executive order. 

Are you familiar with that? 

Mr. JOHNSON. I agree that continuances are up to the discretion 

of the trial judge. 

Mr. FORBES. Would you also agree that, if he can’t get that continuance, that he can’t move forward with the commission and he 

will have to dismiss those charges? 

Mr. JOHNSON. Yes. 

Mr. FORBES. And if he has to dismiss those charges, why in the 

world would the Administration put him in a position to risk dismissing the charges against the 9/11 defendants? 

Mr. JOHNSON. Well, if—even though the case has been suspended, those particular individuals—and I hesitate commenting 

on a particular case—but it is the fact that those particular individuals remain detainees at Guantanamo. And irrespective of what 

happens in the case, they are subject to law of war detention. 

Mr. FORBES. Well, then, Mr. Johnson, why in the world are we 

having these proceedings if we are going to retain them whether 

we have the proceedings or not depending on—and it doesn’t matter what the outcome of the proceedings are? 

Mr. JOHNSON. Because on—in certain contexts, people who violate the laws of war or violate Federal criminal laws should be 

brought to justice. The public, I think, expects that. 

Mr. FORBES. Did the—Did the defend—Is it your opinion, your 

personal opinion that the individuals, the defendants in the 9/11 

attacks violated were acts of war, or were they violations of criminal law? 

Mr. JOHNSON. I cannot comment on a particular case. I don’t 

think it would be prudent for me to do that, given my position in 

the Department, sir. 

Mr. FORBES. Mr. Kris, can you say whether or not, in your personal opinion, that the acts that took place on 9/11 were violations 

of war—acts of war or were they violations of criminal law? 

Mr. KRIS. I am not going to testify in my personal opinion. But 

I think it is fair to say that they are both. 

Mr. FORBES. Mr. Kris, you are not prepared to give us your personal opinion when you came here? Every other witness—well, I 

am out of time. I will hopefully come back. But I want to just prep 
21 

you all for when I do get some more time. We have been asking 

all of our witnesses their personal opinions when they come in 

here. That is what we look to you for. 

Mr. Chairman, my time is out. 

Mr. KRIS. Congressman, I beg your pardon. I just want to make 

clear, I am testifying as an Administration witness. I know some 

of the military officials can testify in their personal capacity and 

give their personal opinions. 

But I will say that I think the 9/11 attacks are both violations 

of the law of war and of the criminal laws of the United States. 

Mr. FORBES. Thank you both. 

The CHAIRMAN. Mr. Kris, you understand the difference between 

a case being dismissed with prejudice or dismissed without prejudice? Do you understand the difference? 

Mr. KRIS. I do, yes. 

The CHAIRMAN. If it is dismissed without prejudice, it may be 

refiled. Am I correct? 

Mr. KRIS. Yes. 

The CHAIRMAN. If it is dismissed with prejudice, that person may 

not be tried under the same charge. Is that correct? 

Mr. KRIS. That would normally be true, yes. 

Mr. FORBES. Mr. Chairman. 

The CHAIRMAN. Yes. 

Mr. FORBES. Would the gentleman yield? 

The CHAIRMAN. Yes. 

Mr. FORBES. Based on that line of questioning, I would just like 

to put in the record that the chief prosecutor would agree that 

there might be a possibility that he can refile this. But the problem 

would be that—and I think Mr. Larsen and Mr. McKeon would 

agree—that he said that it could take another 18 months just to 

get where they are right now because of all these proceedings, because they would have to start from scratch, and also that it could 

be that the speedy trial laws would actually prohibit him from 

bringing a case again. All of that is up in the air. 

And I just yield back and thank the gentleman. 

The CHAIRMAN. Well, I thank the gentleman. But my question is, 

these particular cases, were they dismissed without prejudice or 

with prejudice? 

Mr. KRIS. I mean, I don’t know what the judges will do. I hope 

they won’t dismiss at all. 

The CHAIRMAN. No, no. Have they already been dismissed? 

Mr. KRIS. No. 

Mr. JOHNSON. Under military commissions procedure, when a 

case is withdrawn, as a few have been in the past, they are withdrawn without prejudice. 

The CHAIRMAN. Is that part of the rules and regulations under 

which the commission operates? 

Mr. JOHNSON. Yes, sir. 

Mr. KRIS. I might just make, sort of, three quick points that may 

help on this, maybe not. 

But the first is that the protocol considers efficiency, which 

would embrace, I think, prior litigation in guiding forum choice. 

The second is that I think the President has made clear we are 

not going to go forward with a Military Commissions Act pro-
22 

ceeding until the necessary reforms have been made to the military 

commissions system in any event. 

And, third, that the pending legislation, I think, as it stands 

today, has a, sort of, conforming amendment approach that allows 

for the possibility of continuing the cases that are pending even 

after the amendments have been enacted into law. 

The CHAIRMAN. Ms. Sanchez. 

Ms. SANCHEZ. Thank you, Mr. Chairman. 

I have consistently supported the use of military commissions in 

appropriate cases. And I was one of the first ones to introduce in 

2005 a military commissions bill. Nonetheless, I voted against the 

MCA [Military Commissions Act] of 2006 because I had some certain concerns with it. And I am glad that, in looking over your review, that your revisions and suggestions, that you have actually 

gone to some of those concerns. So I want to thank you. 

However, I am surprised you didn’t include a revision of the definition of ‘‘unlawful enemy combatant,’’ which I think currently is 

‘‘any person who has engaged in hostilities or who has purposefully 

and materially supported hostilities against the U.S. or its co-belligerents.’’ 

I think that the intent of military commissions is to police the 

battlefield. And I believe that military commissions are intended to 

enable—I believe that there should be clear boundaries for the use 

of these special wartime commissions to prevent them from more 

general use in normal law enforcement cases. 

Cases involving noncombatants should be disposed of through 

Article III courts. I believe this would be accomplished by restricting the jurisdiction of military commissions and the definition of 

‘‘unlawful enemy combatants’’ to persons who actually engage in 

armed hostilities or attempt, conspire, or aid and abet the same. 

This definition draws the line more strictly around those who participate in acts of violence under the well-defined traditional headings of principals, attempts, and conspiracy. 

And, for example, some of the examples I might use is that, 

under the MCA, the personal jurisdiction of the military commissions are limited to unlawful enemy combatants. I am concerned 

that defined categories broadly include persons, for example, who 

are captured off of the battlefield for various noncombatant support 

or, like, monetary contributions to terrorist organizations, for example. 

So my question to you is, have you given thought on whether you 

would define the—how you would define the personal jurisdiction 

of military commissions? And, if so, how? And how would you 

change the definition of ‘‘unlawful enemy combatants,’’ if you 

would? 

Mr. JOHNSON. Congresswoman, first thing I would do is refer to 

the Senate bill, which I think no longer uses the phrase ‘‘unlawful 

enemy combatant’’ in defining jurisdiction. And I think the phrase 

used in that bill is ‘‘unprivileged enemy belligerent,’’ which is a 

phrase that many military law experts use and embrace. 

In response more broadly to your question, I would refer you to 

the definition that we are now using with the Department of Justice in our Guantanamo habeas litigation for who we say we have 
23 

the authority to detain. That was a definition that was modified in 

March from the previous Administration’s definition. 

In that definition, we no longer use the phrase ‘‘unlawful enemy 

combatant.’’ And it is a definition that is more closely tied to the 

Authorization for the Use of Military Force that the Congress 

passed in 2001, as informed by the laws of war. 

So that is the definition we are using as our detention authority 

for the people at Guantanamo. And who we prosecute in that group 

is a subset of that group that we think we have the authority to 

detain. 

Ms. SANCHEZ. But the Congress has not changed the definition. 

Mr. JOHNSON. No, no. We, the executive branch—— 

Ms. SANCHEZ. You are. 

Mr. JOHNSON [continuing]. Changed the definition in our submission to the courts for who we say we have the authority to hold. 

Mr. MCKEON. Will the gentlelady yield? 

Ms. SANCHEZ. I will yield to you, Mr. McKeon. 

Mr. MCKEON. In the Senate bill that they passed last night, they 

used this definition, ‘‘unprivileged enemy belligerents.’’ So the Senate is using that. 

Ms. SANCHEZ. Yeah, but we aren’t. I mean, the current law isn’t. 

Mr. MCKEON. No, we didn’t address it in our bill. It is something 

we will have to address in conference. 

Ms. SANCHEZ. Right. 

Mr. KRIS. The Military Commissions Act and the Senate Armed 

Services bill to which Representative McKeon just referred have 

this definition. They use different terms to describe it. 

But, as Mr. Johnson said, there is the possibility of linking the 

personal jurisdiction more explicitly to the authorization to use 

military force from September 2001. That is still, I think, an open 

question, and we are very interested in working with Congress on 

that. 

One other point that may help address the basic point you were 

advancing, I think, Congresswoman Sanchez, and that is that, 

whatever personal jurisdiction issues are—exist, military commissions will be limited in terms of their subject matter jurisdiction to 

law of war violations. So an ordinary Federal crime would be, I 

think, outside the scope of what could be tried there, regardless of 

personal jurisdiction issues. 

So I just wanted to add that limiting gating factor that I think 

is an important part of how you look at this. 

Ms. SANCHEZ. Thank you, gentlemen. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

The gentleman from Texas, Mr. Conaway. 

Mr. CONAWAY. Thank you, Mr. Chairman. I appreciate it. 

Gentlemen, thank you for being here. 

Hearing the phrase, ‘‘unprivileged enemy belligerent,’’ took me 

back to my B law days when bank robbers were described as ‘‘holders not in due course.’’ Not relevant to what I want to ask. 

We are in an ongoing fight. And with respect to new folks, folks 

who aren’t yet at Guantanamo Bay or aren’t going to go there, does 

the Administration plan to use a preventive detention system for 

terrorist detainees in the future? 
24 

Mr. JOHNSON. It is difficult to predict the future. We believe that 

the Congress authorized law of war detention for these particular 

detainees at Guantanamo. That is the definition we are now using. 

And the courts have reaffirmed that principle as recently as 2004. 

Mr. CONAWAY. Okay. But if we picked up a guy on the battlefield 

today that is clearly an al Qaeda or related—an affiliate of al 

Qaeda, does the Administration believe you have got the authority 

to preventatively detain that new combatant, or unprivileged 

enemy belligerent—a guy with a bad attitude, I guess—under the 

rules? And, if so, where do you plan to keep these guys, or women, 

depending on who you pick up? 

Mr. JOHNSON. If that detainee fits within what Congress adopted 

in 2001—I think the language was al Qaeda, Taliban—and they 

are at Gitmo, we certainly believe that we have the authority to 

detain that person. Part of our review process—— 

Mr. CONAWAY. Okay, let’s focus on the new guys that aren’t at 

Gitmo and, if you have your way of closing it, won’t go to Gitmo. 

Where are you going to keep those folks? 

And let’s broaden the question a little bit, to if we picked them 

up in Yemen, some other place in the world besides Afghanistan. 

What is the Administration’s position with respect to those bad 

guys? 

Mr. JOHNSON. We—If they are a member of al Qaeda, they constitute a security threat, we would certainly look to detain them, 

after we capture them, someplace. Where exactly that is, I would 

hesitate to try to speculate right here. 

Mr. CONAWAY. Okay. Are there plans within the Administration 

to determine where that place might be? 

Mr. JOHNSON. Yes, sir. 

Mr. CONAWAY. And who would be—who would we need to bring 

down here to talk about that? 

Mr. JOHNSON. I can try to help you identify that person somewhere within the Department of Defense. 

Mr. CONAWAY. Okay. So you are not just—I am always nervous 

when I am—— 

Mr. JOHNSON. A lawyer doesn’t always have all the answers. 

Mr. CONAWAY. Well, lawyers parse their words very easily. 

You mentioned earlier about, if we prevail in the habeas cases, 

that we will keep these guys forever. What if we don’t prevail? 

Mr. JOHNSON. As the President said in May, if we have the detention authority, there should also be some form of periodic review—— 

Mr. CONAWAY. But wait a minute. 

Mr. JOHNSON [continuing]. So you don’t just keep them forever. 

Mr. CONAWAY. Okay, well, do you or don’t you have the detention 

authority? 

Mr. JOHNSON. We believe we have the detention authority with 

respect to the current population. There comes a time—and I think 

the Supreme Court may have alluded to this—that, if circumstances change and the person is just sitting there year after 

year after year, we may lose that authority, and so some form of 

periodic review might be appropriate. 

Mr. CONAWAY. Because the fight is over, or because this person 

is infirm? 
25 

Mr. JOHNSON. Because the fight is over and/or the person is no 

longer a threat. 

Mr. CONAWAY. Okay. If the fight is over, then we couldn’t hold 

any of them, under that preventive detention measure, right? And 

how are we going to know when the fight is over? 

Mr. JOHNSON. Well—under the traditional law of war principle, 

you hold them until the cessation of hostilities, until the war is 

over. 

Mr. CONAWAY. Right. 

Mr. JOHNSON. And this obviously is a different kind of war. So 

we think some form of periodic review is appropriate that makes 

a threat assessment. 

Mr. CONAWAY. Sure. 

Mr. Kris, are you—what kind of assurances—once you hear the 

question, you will say none—but what kind of assurances can you 

give us that some Federal judge in the system somewhere won’t decide that, because this fight is, as Mr. Johnson just said, not one 

we have fought before, and the idea of cessation of hostilities is so 

nebulous that it no longer applies and that we have to let these 

guys go? Can we trust that these Article III courts won’t come to 

that conclusion? 

Mr. KRIS. Well, at one level, you are right: I obviously cannot 

control Article III judges. I admitted earlier I can’t control the 

media, and I am happy to make a similar admission here. 

But I do have a good deal of faith in our Federal judicial system 

and the judges who are on it. And, of course, if any one judge 

makes an error—and that can happen—we have appellate review. 

Mr. CONAWAY. The Judiciary Committee, earlier this week, heard 

some gut-wrenching testimony about a poor soul who was a nerdly, 

scientist geek who was trying to develop a fuel cell, and he wanted 

to move from his mother’s basement to Alaska. And he knew that 

these chemicals couldn’t—that he was using couldn’t be flown to 

Alaska, so he gives them to a UPS guy, clearly marks ‘‘Ground’’ on 

the shipping document, not knowing, of course, that UPS flies everything up there. So he flew something up there unintentionally. 

We arrest him, put him in jail. While he is in jail, the chemicals 

that the other—the other chemicals he has had, the EPA decides 

that he has abandoned those chemicals. The abandonment occurred 

while he is in jail, in our custody. This pour soul does 17 months 

on the EPA charge in one of your Article III courts. 

And so, your—you know—and that is an unfair accusation to try 

to characterize the entire system, because the entire system is 

good. But there are rogue events, anecdotal events, that cause me 

great concern when we have got a prosecutor on one side and a 

judge on the other side who couldn’t look at the facts there and go, 

‘‘Goodness gracious, this is nuts.’’ 

So can you give me great confidence that this—it is even more 

important in this arena that we don’t let these guys go. 

Mr. KRIS. I mean, I think—I am obviously not familiar with that 

case, as you know. 

Mr. CONAWAY. I know. 

Mr. KRIS. I mean, I think the lesson of that is, I guess, that, even 

in a system like Article III, where you have the largest number of 
26 

checks and balances and unquestioned systemic legitimacy, mistakes are possible. This is a human endeavor. 

Mr. CONAWAY. Yeah. 

If we tried KSM, Khalid Sheikh Mohammed, and he is acquitted, 

worst of all circumstances, he is acquitted, can we still hold him, 

Mr. Johnson? Or will we still hold him, is a better question. 

Mr. JOHNSON. Well, I hesitate to give you a prediction based on 

particular circumstances. 

Mr. CONAWAY. So there is a chance we wouldn’t hold this guy? 

Mr. JOHNSON. I said earlier in response to another question that 

it is my view that, if you have detention authority, law of war authority to hold a dangerous person, that is true irrespective of what 

happens in a prosecution. 

Mr. CONAWAY. All right, that is fair. Thank you. 

I yield back. 

The CHAIRMAN. Mr. Larsen, the gentleman from Washington. 

Mr. LARSEN. Thank you, Mr. Chairman. 

And, gentlemen, thank you for coming. 

I was one of the four Members who were down there on Monday 

at Guantanamo. I was there in January 2002, as well, and got to, 

sort of, see the bookends of the physical facilities. And I have to 

say that the facilities down there are certainly much improved over 

what we saw in January of 2002. 

And to echo Mr. Johnson’s comments about the professionalism 

of the folks down there, I want to echo that. It is really always a 

sight to behold whenever we get to travel overseas and visit our 

men and women in the military and see the jobs they do. They are 

doing a great job under difficult circumstances. 

With regards to the Office of Military Commissions prosecutor 

conversation that we had down there, I think he did make his own 

forceful case for military commissions. I wouldn’t expect anything 

otherwise. And he provided some conjecture about what might happen because the hearings process has been stayed. 

But, I guess, what may be may not be, as well. And, you know, 

it is tough to say that his prediction would come true or not, in 

part because we didn’t have the opportunity to have the same 

kinds of discussion with the Office of Military Commissions-Defense [OMCD]. And so I made the point that maybe we ought to 

have a chance to chat with the OMCD folks, as well, and look forward to how they see the process and what kinds of concerns that 

they have. Because I think that we need to hear both sides in order 

to have a better discussion and more informed discussion as we 

move forward. 

With regards to the MCA and the Senate—of course, we didn’t 

have language in the House version, and we will have to sort 

things out now that the Senate has passed. 

But, Mr. Johnson, could you discuss the Administration’s position 

on this debate about voluntary versus reliability standards in the 

use of evidence and why the Administration is where it is on this 

issue? 

Mr. JOHNSON. The Administration believes that a voluntariness 

standard is the right way to go. And we believe that for this reason: The current law and the current bill have a totality of circumstances reliability standard. We think that, as these prosecu-
27 

tions progress, more judges will likely impose a voluntariness requirement, and we think, therefore, it is important that they get 

it right. 

And so, what we in the Administration are advocating is a voluntariness standard—and there is language we can give you specifically—tailored to military operations, military intelligence collection circumstances, so that, consistent with the law, the judges get 

this right. 

We are not talking about imposing a voluntariness standard on 

soldiers at the point of capture. I want to be perfectly clear about 

that. And one of the things the Senate bill does is specifically exempt from military commissions any Miranda requirements, Article 

31 of the UCMJ. 

What we are talking about is a voluntariness standard, frankly, 

that is not far from what Admiral McDonald advocated the other 

week when he was here. I think the JAGs advocated that voluntariness be a factor in the reliability standard. 

Mr. LARSEN. They basically argued reliability with voluntariness 

as a factor. 

Mr. JOHNSON. Correct. 

Mr. LARSEN. And it sounds like you are arguing voluntariness 

with reliability as a factor, in some sense. 

Mr. JOHNSON. We are arguing that voluntariness should be the 

standard. But, really, what we are saying is not that different than 

what the uniformed lawyers are saying. We are urging a voluntariness standard that takes account of the circumstances of how the 

military does its job. 

Mr. LARSEN. Well, as I understand your argument, it gets at 

some of the heart of the MCA. What I hear you saying, I guess, 

is you are trying to perhaps anticipate what a future trial judge or 

a series of future trial judges may determine about the use of the 

reliability standard versus the voluntariness standard and, by anticipating they may be moving to the voluntariness standard, put 

it in the MCA now so we don’t have to go back and change it later. 

Which has been one of the problems that we have had, I think, 

in the past with the MCA in getting it wrong and being told by 

judges to go back and fix what was wrong, which is why we are 

here today. 

Mr. JOHNSON. I want to echo what the chairman said, which is 

that it is important that we have a process that is sustainable, that 

brings convictions that can be upheld on appeal. 

Mr. LARSEN. And, quickly, the yellow light is on, I will ask a 

question, material support of terrorism. The Administration— 

Where does the Administration sit on material support of terrorism 

as a chargeable offense in the MCA? Are they supportive of it or 

not? And why? 

Mr. JOHNSON. We think Article III prosecutions are for violations 

of the Federal criminal law and that military commissions are for 

violation of the laws of war. 

We looked at it carefully and concluded that the historical precedent for material support as a law of war offense was questionable. 

And, therefore, material support should be prosecuted, if it is prosecuted, in Article III Federal courts. 

Mr. LARSEN. Thank you. 
28 

The CHAIRMAN. Thank the gentleman. 

Mr. Coffman from Colorado. 

Mr. COFFMAN. Thank you, Mr. Chairman. 

There seems to be a shift in this Administration to view what I 

would call acts of war as criminal justice issues, where the global 

war on terror is now ‘‘overseas contingency operations,’’ and terrorist attacks are now ‘‘man-caused disasters.’’ 

But we are a Nation at war, and we are fighting against disparate, irregular forces bound by an ideology who often use terrorism as a tactic. All enemy combatants should be detained until 

this war is over with, regardless of how long it takes for us to win 

this war. 

Only if there are alleged violations of war should these enemy 

combatants go through—be tried through a judicial process. But 

even if they are found innocent of that, they are still enemy combatants and should be detained, again, for however long it takes us 

to win this war. 

And I would like to know, is this the Administration’s view, that 

acts of war are criminal justice issues? 

Mr. KRIS. Congressman, I think a couple of points on that. 

First, the President has made clear, and I want to echo it: We 

are at war. We need to win that war. We need to defeat our adversaries. 

To do that, we need to use all of the tools in our toolbox, all elements of national power consistent with the rule of law. That includes military techniques, intelligence techniques, diplomatic techniques, and anything else that is consistent with the rule of law 

and that will help us win. 

And it includes also military justice, prosecutions in military 

commissions, and, where it is appropriate and effective, prosecutions before Article III courts. 

I want and I think the Administration wants to be able to use 

whatever tool is the most effective under the circumstances to 

allow us to win. 

Mr. COFFMAN. But you do not believe that enemy combatants 

should be detained until this war is won. 

Mr. KRIS. No, on the contrary, I think the Supreme Court has 

made clear that, under the authorization to use military force, 

there is authority to detain. And we are, in fact, detaining many 

people under that theory now. It is being tested in habeas corpus 

proceedings, but we are certainly doing it. 

At some point, the Supreme Court may—— 

Mr. COFFMAN. Excuse me, but I think you missed my point. And 

my point is this, that there are two levels. I was an infantry officer; 

I wasn’t a JAG officer. And I faced—I have been face to face with 

the enemy. And I will tell you this, that—a couple points. Number 

one, we are a Nation at war. And so the question is, enemy combatants ought to be detained so long as we are a Nation at war. And 

the other issue is, when there are violations of war, of the laws of 

land warfare, then no doubt those people should be tried. 

But I think we have this fuzzy-headed view that, when somebody 

is plucked off the battlefield, that they need to go through some judicial process to determine whether or not they should be detained. 

And I think that—and you say it is the policy that they can. The 
29 

question is, we should have an absolute policy that people that are 

enemy combatants will be detained until this war is over with. 

Mr. JOHNSON. Congressman, the President agrees with you. We 

are at war. He said that as recently as May 21st. 

Given the nature of the conflict, there is not going to be a surrender. There is not going to be a fixed date for a surrender, which 

is why it is appropriate for those we are detaining under our law 

of war authority to have some form of periodic review. Because 

there may be a point in the future where that person is deemed 

no longer a threat. 

Mr. COFFMAN. If—the person—Well, we have released people 

who we thought were no longer a threat that are back on the battlefield. So our ability to decipher that isn’t very good. 

You know, again, I think that this view—that there is a view 

that this is all a criminal justice issue, that acts of terrorism are 

law enforcement problems. And, as somebody who served in Iraq 

in 2005, 2006, I want to tell you for the troops on the ground there 

is a different reality than exists then for this Administration. 

Mr. Chairman, I yield back the balance of my time. 

The CHAIRMAN. Thank the gentleman. 

Before I call on Mr. Courtney, Mr. Kris, when does the war end? 

Mr. KRIS. Oh, I am sorry, I, as Mr. Johnson said, that is very 

difficult to predict. This is a war unlike other past wars. And I 

think, as he said earlier—— 

The CHAIRMAN. We know that. But when, in your legal opinion, 

when does the war end? 

Mr. KRIS. I don’t know if that is so much a legal judgment as 

it is a factual and military judgment as to when the war ends. 

When the adversary is defeated, that would be one ending point. 

I mean, if you are getting at—and I don’t—— 

The CHAIRMAN. Why don’t you do this for me? Answer that for 

the record. Go back and think about it and send us an answer. 

When does the war end? Because, at that moment, those detainees, 

as bad as they are, under the law of war, would be freed. 

Mr. KRIS. I agree with you. 

The CHAIRMAN. Am I correct? 

Mr. KRIS. Yes, I think that—— 

The CHAIRMAN. So I think it would be helpful to our committee 

if you would do some research and send us an answer to the question, for the record, when the war ends. Under what circumstances 

does the war end? And spell it out for us. You are a good lawyer; 

you can do it. 

[The information referred to can be found in the Appendix on 

page 77.] 

The CHAIRMAN. Mr. Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. 

Mr. Chairman, listening to some of the questions, it seems like 

there has almost been an assumption that this Administration 

walked into office with a static population at Guantanamo Bay and 

that we are, sort of, moving from that number of 240 which existed 

back in January to where we are today. I mean, the fact of the 

matter is that there were over 700 people that were detained at 

Guantanamo Bay. Isn’t that correct, Mr. Johnson? 

Mr. JOHNSON. Yes. 
30 

Mr. COURTNEY. And so when President Obama took office and 

there were only 240 in that facility, my math tells me that about 

540 people have been transferred or released, whatever term you 

want to use, before he even stepped foot into the White House. Isn’t 

that correct? 

Mr. JOHNSON. That is correct, yes. 

Mr. COURTNEY. So there obviously has been a process that started with the prior Administration of using national security as the 

measuring stick for evaluating the decision to hold people or to 

transfer them back to other countries. I mean, that is an obvious 

conclusion that you have to deduce from just the math. Isn’t that 

right? 

Mr. JOHNSON. Correct. 

Mr. COURTNEY. So—and when the President clearly stated that, 

after, sort of, going through this remaining minority of detainees 

that are at Guantanamo Bay and sorting through who is going to 

go to military commissions and who is going to go to Article III 

courts, that—and he was very up front about the fact that there 

may be this other category who don’t necessarily easily fit into 

those referrals—that the Administration’s position is that we have 

the right to hold them under the law of war. Isn’t that correct? 

Mr. JOHNSON. Yes. And I think the President has also made 

clear that the safety of the American people, consistent with the 

rule of law, is the paramount concern. 

Mr. COURTNEY. So, you know, there really is no fuzziness here 

about what the Administration’s position is, in terms of protecting 

this country and using a non, you know, sort of, criminal police 

measuring stick, in terms of what the Administration’s policy is. I 

mean, he is basing that detention law—legal opinion on the 2001 

authorization which this Congress enacted. Isn’t that correct? 

Mr. JOHNSON. Yes, sir. 

Mr. COURTNEY. So when the Senate did their modification of the 

commissions in the authorization bill, did they touch that piece of 

the system? Or is the Administration still just going to ask for us 

to leave that alone? 

Mr. JOHNSON. The Senate amendment to the Military Commissions Act does not purport to address law of war detention; that is 

correct. And we believe, with respect to the current Guantanamo 

population, that the Authorization for the Use of Military Force, as 

it was interpreted by the Supreme Court in the Hamdi decision, 

provides sufficient authority to detain the current population. 

Mr. COURTNEY. So nobody is going anywhere who, again, in the 

opinion of our military and Administration officials believes still 

poses a threat, whether they are found guilty either by plea or trial 

of an offense in the military commission or Article III court because 

of that policy. Isn’t that correct? 

Mr. JOHNSON. That is correct. That is our primary obligation to 

the American people. 

Mr. COURTNEY. Okay. 

And, lastly, just, you know, Mr. Kris, how many people in the 

Department of Justice do we incarcerate on a given day, roughly? 

Mr. KRIS. I mean, the Bureau of Prisons has a very large population—I think it is a hundred thousand or so—under lock and key 

right now. 
31 

Mr. COURTNEY. And, I mean, just in my State of Connecticut, I 

mean, there are probably roughly about 20,000 people incarcerated 

on a given day. Obviously, we have a system that can accommodate 

240 people, individuals, in a safe and secure manner. And we prove 

that every single day, in terms of the hard work that people in the 

Bureau of Corrections do. Isn’t that correct? 

Mr. KRIS. I think that is absolutely right. 

Mr. COURTNEY. Okay. I yield back. 

The CHAIRMAN. Ms. Fallin, the gentlelady from Oklahoma. 

Ms. FALLIN. Thank you, Mr. Chairman. 

And I appreciate you gentlemen and your testimony today and— 

about how we treat our enemy combatants, especially on the battlefield. But I have a little bit of a different tack that I would like 

to ask you about today, because this deals with a situation that is 

occurring in my home state, in Oklahoma, and it deals with our 

American soldiers and how they are treated on the battlefield and 

their rights in the military court system. 

And since both of you are with the legal system, I would just like 

to tell you about a situation, ask your opinion, and then hopefully 

leave you with some information and ask you specifically if you will 

look into this situation for me as a Member of Congress. 

And let me just start out, I heard Mr. Forbes asking Mr. Johnson 

about the goals of the Administration in relation to detainees and 

their rights. And I think you said that the Administration’s goal is 

justice for the victim and—of terror and also for the U.S. citizens. 

In other words, there should be justice for all when we talk about 

our military courts. 

And I guess my question is, do you believe American soldiers 

have a constitutional right to a fair trial? 

Mr. JOHNSON. I believe that, under the UCMJ, American soldiers, sailors, airmen have a number of rights to a fair trial. 

Ms. FALLIN. Thank you. And doesn’t an American soldier have 

the right to defend themselves in a combat zone against, say, if 

they were to run up an against a member of al Qaeda that is a terrorist and a known terrorist? Do they have the right to defend 

themselves? 

Mr. JOHNSON. Absolutely. 

Ms. FALLIN. Okay. And during a military trial, is it permissible 

for a prosecutor, a government prosecutor, to withhold or fail to 

provide exculpatory evidence to the defense of an American soldier? 

Mr. JOHNSON. Well, first of all, as a former prosecutor myself, I 

hesitate to comment on what somebody did in a particular trial or 

a decision made in a particular prosecution. And so, I wouldn’t 

want my comment to be interpreted as that. 

Ms. FALLIN. Okay. Well, I am asking—— 

Mr. JOHNSON. I know that, as a general matter—— 

Ms. FALLIN. Yeah, in general. 

Mr. JOHNSON [continuing]. Prosecutors, the government has an 

obligation to disclose exculpatory evidence. 

Ms. FALLIN. Okay, good. That confirms that. 

Okay. So, in your professional opinion, would an American citizen, a soldier, be given a fair trial if evidence is withheld purposely from the defense that is exculpatory? 
32 

Mr. JOHNSON. As a general matter—again, I am not commenting 

on a particular case—as a general matter, prosecutors have an obligation to disclose exculpatory evidence. And, if they don’t, there 

should be consequences. 

Ms. FALLIN. Good. 

Okay. So that gets me to a point, and that is that we have had 

a gentleman from my home state—and I am not determining guilt 

or non-guilt on this situation. But what I do want to make sure is 

that, when our American soldiers who are away from our country, 

defending our Nation, and on foreign soil who run across enemy 

combatants that are in that land, that they have full rights, too, 

as American citizens, because they are, of course, taking away time 

from their country and their life and defending our country. And 

we need to make sure that we protect them just as much as we 

give rights to detainees or enemy combatants. 

And, in a particular case, there has been a gentleman that is 

First Lieutenant Michael Behenna, who has gone to trial, has had 

a trial, but there have been very deep concerns from my congressional delegation in Oklahoma and from others who believe that 

evidence was withheld from the defense of him. And he was accused of shooting an al Qaeda member who had just killed two of 

his fellow soldiers in his platoon through an explosive device. 

And so, there is some question about whether the trial was fair, 

because not all evidence was presented in court. So we have asked 

for the convening authority to look at the evidence and to make a 

ruling. And, just yesterday, they made a ruling that they felt the 

trial was fair. 

So I guess what I am asking is, I want to give you this information and just ask that you would take it back, because my goal is 

just to make sure that our American soldiers have every single 

right that they deserve to have a fair trial, just as much as an 

enemy detainee. 

Mr. JOHNSON. Congresswoman, now that you mention the case, 

I am aware of the case. The Secretary of Defense has received correspondence about the case. Because the case is in the UCMJ process, I am limited in terms of what I can do or what the Secretary 

can do to try to influence that, nor should we try to do that. But 

I am happy to look at whatever you ask me to do. 

Ms. FALLIN. And all I am asking you is to look at the process, 

not the outcome. 

Thank you. 

The CHAIRMAN. I thank the gentlelady. 

Ms. Davis. 

Mrs. DAVIS. Thank you, Mr. Chairman. 

Thank you both for being here. 

I wanted to go back to one of our HASC [House Armed Services 

Committee] hearings in September of 2006, when Admiral McDonald, the Judge Advocate General for the Navy, discussed the issue 

of reciprocity. And the question was whether the way in which the 

U.S. treats detainees impacts the way our service members will be 

treated on the battlefield, something I know you are very familiar 

with. 

And, at that time, he said that, ‘‘I would be very concerned about 

other nations looking in on the U.S. and making a determination 
33 

that, if it is good enough for the U.S., it is good enough for us, and 

perhaps doing a lot of damage and harm internationally.’’ Now, 

that was a time that we, obviously, were very concerned about 

what was happening and the impacts. 

Could you—do you share his views on that, that it really does 

make a difference to our troops in the field how we handle this 

process in the U.S. and overseas? 

Mr. JOHNSON. I hear repeatedly from my military lawyer colleagues that reciprocity is important, that we are concerned about 

how our people would be treated if they were captured. And it is 

important, therefore, to get it right for that reason. 

Mrs. DAVIS. Do you have a comment? 

Mr. KRIS. I will say I agree. Jeh and I and Admiral McDonald 

testified together a few weeks ago in the Senate, and he expressed 

the same view there, which I found persuasive. And he said, and 

I think he is right, that the legislation that we are working on satisfies that reciprocity principle. And I think it is an important one. 

Mrs. DAVIS. Uh-huh. Are there any changes that the Senate has 

made or in our discussions that would cause you any concern in 

those areas? And are some of those issues very differently portrayed in the outside world aside from here? Have you seen that 

in any way, that they are being portrayed differently than the way 

you see them? 

Mr. JOHNSON. Well, this goes back to—well, let me begin with 

this. I think that a big change that the Senate bill makes to current law is a ban on the use of statements taken as a result of 

cruel, inhuman, degrading treatment. The old bill, the current law, 

permitted that possibility. And I think that that did more to hurt 

our credibility in the military commissions process than any other 

one thing. 

And so, whatever the House of Representatives decides to do, I 

would hope that you would agree that we should not permit the 

possibility of statements taken as a result of cruel, inhuman, degrading treatment. That is certainly not what we would want our 

military to face. And, as a matter of simple American values, I 

would submit that we shouldn’t permit it in any court system governed by the United States. 

Mrs. DAVIS. Any other comments? 

Mr. KRIS. I agree with that exactly. 

Mrs. DAVIS. Okay, thank you. 

As we look to transferring—if we find ourselves in a position of 

transferring detainees to the United States, there are many of 

those issues that we are going to be looking at: how we structure 

the proceedings, procedural rules, due process rights of course, 

right to be present during adjudication. 

In that transfer, is there anything that you feel might be—might 

affect any of these considerations? I mean, are there some complications that arise as a result of that transfer? And what should 

we be the most concerned about? 

Mr. JOHNSON. I think we are both pretty confident that reform 

of the Military Commissions Act of 2006, reform of military commissions to make it a robust process that more closely resembles 

the UCMJ process is good all around, irrespective of where they 

are conducted. 
34 

Mrs. DAVIS. Is there anything in the way, appellate review 

rights, other considerations, that would—that you think would be 

at play here that we need to look at further? 

Mr. JOHNSON. The—in terms of appellate rights, the Administration embraces the idea in the Senate bill that there ought to be a 

broader scope of review. I think where we differ with the Senate 

bill is we believe that the appellate court should be an internal 

military court, a court of military commission review, plus the D.C. 

Circuit, United States Court of Appeals for the D.C. Circuit, and 

then on to the Supreme Court. 

Mrs. DAVIS. Thank you. 

The CHAIRMAN. Thank the gentlelady. 

Mr. Rooney. I have Mr. Rooney and Mr. Kratovil, in that order. 

Mr. ROONEY. Thank you, Mr. Chairman. 

You know, one of the advantages of going last is that I get to 

hear everybody else. But it is also a disadvantage, because my 

questions are going to be all over the place. So if you bear with me, 

I just want to touch on a few things. 

The chairman spoke of when the war is over and releasing detainees and how, Mr. Kris, you would define the end of the war and 

how difficult that is because it is a war on terror and that type of 

issue, obviously. 

One of the things that I might ask you is, when we are talking 

about the enemy that we have detained, where is this enemy from? 

What country do they fight for? What uniform do they wear? What 

flag do they fight under? The answer to all those questions is obviously—— 

Mr. KRIS. None. 

Mr. ROONEY. Right. So those things are all violations of the law 

of war, correct? Or the Geneva Conventions, as we understand 

them? 

Mr. KRIS. I mean, they would not be entitled to be privileged belligerents or prisoners of war under the Geneva Conventions. You 

are absolutely right about that. 

Mr. ROONEY. But my question goes more towards the—what 

eventually you do with them once there is—if we can agree that 

there is something that would be the end of the war. As the chairman said, that we would just—they would just be released. Is that 

correct in—when dealing with Khalid Sheikh Mohammed or individuals that we have that have violated the Geneva Conventions? 

Mr. KRIS. No, and that is—no. And it is interesting, in the prior 

discussions we were having, we talked about the distinction between detaining someone under the law of war for the duration of 

the hostilities. And there is some question about exactly when 

these hostilities will cease. 

But separate from that is an ability to convict someone for violations of the law of war or violations of the criminal code and to hold 

them for the duration of their sentence, which very well might go 

quite beyond the end of hostilities. And that will be a fixed sentence imposed by a court as part of a prosecution. 

Mr. ROONEY. All right. And I just wanted to throw that out there 

and add that element to that conversation. 

You know, one of the things that concerns me—and I know I 

don’t have much time—but one of the things that concerns me is, 
35 

when we are talking about the role of the Commander in Chief and 

we are talking about the lawfulness under the laws of war, the Geneva Convention, prisoner of war status, Guantanamo Bay, which 

I also visited, you know, there is a lot left up to interpretation for 

the Commander in Chief. 

You talked about, just a few minutes ago, one of the hot-button 

issues, obviously, are statements that are elicited from cruel or degrading, you know, punishment or interrogation. Up until the 

President started defining certain things, I mean, that was arguable. I mean, for some people, it was more obvious than others, but 

there was room for argument. 

My question to you is, as we move forward, the judge advocates 

that were here—and some of the questions, quite frankly, that you 

have been asked to answer involve a lot of speculation, and you 

haven’t been able to answer them. The judge advocates haven’t 

been able to answer them. 

I think that it is imperative that we do as much as we can to 

be as clear and detailed as possible, so, moving forward, we are not 

caught in, sort of, the cloud of war when it comes to how these people are prosecuted. And that is what we are all trying to do here 

today. 

But one of the things that is still kind of out there for me is 

when we are dealing with future detainees or future prisoners or 

whatever you want to call them, specifically with regard to habeas, 

extraconstitutional rights. We talk about detainees in Afghanistan 

and detainees wherever we are going to go in the future, with regard to terror. 

What do you specifically foresee us doing to make sure that we 

are as locked in as possible when we pick up somebody—and this 

is kind of an extension of Mr. Conaway’s question. If we pick up 

somebody, a bad guy, on the battlefield of Afghanistan, who is 

clearly a terrorist or al Qaeda or somebody like that, what rules 

of criminal procedure are we going to be able to follow for that person with regard to habeas for the future; and are we going to be 

able to address that with what we are doing here today? 

Mr. JOHNSON. Congressman, let me try to answer this question 

this way, which is part of the question you asked earlier of Mr. 

Kris. There are no easy, neat, clean answers about when this was 

going to be over and how you treat people in the future if the socalled war ends, which is one of the reasons why you seek to bring 

people to justice, so that you can get out of that process a long prison sentence. 

In terms of detainees in places like Bagram, we are building a 

new facility. We are putting in place review procedures, that I 

think are improved procedures from what we have now, that have 

been approved at the CENTCOM level by General Petraeus. And 

so I think we are headed in the right direction there in terms of 

our ability to hold these people consistent with the rule of law and 

consistent with what I think ought to be our American standards. 

Mr. ROONEY. I had about ten other questions but my time is up, 

Mr. Chairman. Thank you very much. 

The CHAIRMAN. I thank the gentleman. 

Mr. Kratovil. 

Mr. KRATOVIL. Thank you, Mr. Chairman. 
36 

Let me begin by thanking both of you for making efforts to try 

to resolve what is clearly one of the most complex legal issues that 

we have perhaps ever faced. And I appreciate your trying to find 

some reasonable compromise, understanding the differences in the 

battlefield versus the legal arena. 

Once again my chairman, in his country lawyer style, has hit on 

the issue directly. The way I see the issue is we have detained individuals on a relatively minimal standard under laws of war; and 

we are justified, according to the Supreme Court, in continuing custody so long as the conflict continues. We are struggling with those 

individuals because, although we have what I would articulate as 

perhaps an articulable suspicion in terms of offenses and their involvement, we don’t have enough—at least it appears to me—to be 

sending these individuals to the various forums because if we did, 

we would have done so already. 

So the question becomes, once the conflict is over, what do we 

do? And the—asking a bit more directly than the chairman did, do 

you believe, based on the Supreme Court case and the dicta contained within it, that following the removal of troops from Iraq, are 

we going to be able to justify continued detention of individuals 

that were detained in the conflict in Iraq after the combat troops 

leave? And if not, what do we do then? 

Mr. JOHNSON. Congressman, Iraq and Afghanistan are obviously 

different situations. As we wind down our presence in Iraq pursuant to the security agreement, that does not mean that the conflict 

against al Qaeda and the Taliban is going to be over. We are very 

much in Afghanistan, dealing with the threat in Afghanistan right 

now. And, so I would expect that what we are doing will continue 

there, and part of the mission of the U.S. military is capture and 

detention. 

Mr. KRATOVIL. Alright. Let us go down a few more—let us go 

down a few years, then. Let us assume that we withdraw from Afghanistan. We have these individuals that we believe are very dangerous people although, again, not sufficient proof, in our view, 

your view, to bring them before a forum. What do we do then? 

And here is what I am getting at. I know we are looking at these 

cases to determine what forums to send them. My question is, similar to when I was a prosecutor, is what efforts are we making in 

reviewing them, to acquire additional evidence so that we can forward them to these forums and so that we can hold them beyond 

the end of the conflict whether in Iraq or Afghanistan? 

Mr. JOHNSON. That effort, that collection effort is definitely ongoing. 

Mr. KRATOVIL. What does it consist of? 

Mr. JOHNSON. Through intelligence and military resources and 

avenues, we constantly do that if for no other reason than to find 

out not just how—you know, authority to keep those individuals— 

but, in my view as the military lawyer here, so that we can gain 

information about people we haven’t yet captured. So we are constantly doing that. 

Mr. KRATOVIL. Let me—if I have a little more time, with regard 

to the voluntariness issue, are you suggesting that in the battlefield if there was a door knocked down and soldiers go in and take 

a statement at gunpoint, are you suggesting that the voluntariness 
37 

standard, even under those circumstances, should be used as opposed to a reliability standard? And if is so, why? 

Mr. JOHNSON. What we are suggesting is a voluntariness standard that takes account of that circumstance. So in other words, in 

a civilian context, cops and robbers, you try to discourage the police 

from taking statements in those circumstances. But that is the mission of the military. The military should do that. And so what we 

are asking for and urging is a voluntariness standard that takes 

account of that circumstance and wouldn’t necessarily preclude 

that statement. 

Mr. KRATOVIL. And, my question to you is, do you think it is realistic that our courts are going to find that an individual giving a 

statement under a voluntariness standard is going to be admissible? 

Mr. JOHNSON. You have touched on the very reason why I think 

we need to get it right, why we need to codify a standard to take 

account of that circumstance so that judges don’t misinterpret a 

voluntariness standard. 

Mr. KRATOVIL. Why not have a different standard of voluntariness when you are talking about someone who is detained in custody in a confined setting, and have a reliability standard that applies when you are dealing with issues on the battlefield? 

Mr. JOHNSON. Well, that is very close to what I think we are proposing. 

Mr. KRATOVIL. Okay, thank you. I yield back. 

The CHAIRMAN. I thank the gentleman. 

Mr. Hunter, please. 

Mr. HUNTER. Thank you, Mr. Chairman. 

Gentlemen, thanks for being here. This is, first, a little bit difficult for me to be sitting here with you because, frankly, the rules 

of engagement and what the military lawyers do on the ground for 

guys like me is make life hell, frankly. You make things very difficult. 

In fact, I would say that some of the DOD law that exists with 

rules of engagement and how we treat detainees actually makes us 

kill more people because we don’t want to capture them. I have 

seen it happen. I have seen guys come in, get detained, couldn’t 

hold onto them for one reason or another, according to our JAGs, 

so we release them. Then we kill them. 

And I don’t think you understand to a certain point, especially 

most JAGs—in fact, a good buddy of mine that I served with in 

Fallujah was just here. He is in the FBI now, but he was a JAG 

in Fallujah. We have different types, but they make it very difficult. 

In Afghanistan we had a JAG with us 24/7, 24/7 watching the 

bad guys. And we saw bad guys doing bad things and the JAG 

would say that we could not do anything for one reason or another, 

couldn’t detain them. And you had a three-star general relying on 

an O–3 or an O–4 to give them a decision; and the general could 

override them and strike, but if they did, then it would have been 

against what that JAG said, and obviously that general’s career 

would have been in jeopardy. 
38 

But anyway, we will go on to the questions here. And I am not 

an attorney, so try to speak plainly to me, if you don’t mind. I am 

at a bit of a disadvantage. 

With the nature of these trials, the way that they are going to 

be, do you think that we are leaning towards holding the detainees 

in our military brigs as opposed to Federal penitentiaries? 

Mr. JOHNSON. I would—— 

Mr. HUNTER. With the military nature, the way that they are 

going to be tried, is that going into the—and I am not one either 

who thinks that this Administration came in and all of a sudden 

this stuff started. I know in 2007 under the Bush Administration, 

they were looking at Camp Pendleton and Miramar in my district 

in San Diego to put detainees, because they thought that would be 

conducive to trying them in the way that they are held there. So 

does that lead into that process of thinking? 

Mr. JOHNSON. Well, Congressman, let me respectfully disagree 

with your characterization of the rule of law. 

Mr. HUNTER. You really can’t disagree, because I have been there 

three times and I have seen it. I think I have been there more than 

you have, frankly. So if you want to argue with that, I don’t think 

you are going to be able to. 

Mr. JOHNSON. I have—I have two really good JAGs sitting right 

behind me. 

Mr. HUNTER. Good. 

Mr. JOHNSON. One of them went to law school with the President. The other has won commendations and so forth for his time 

in Iraq. 

Mr. HUNTER. I am not saying you are not good lawyers. I am 

sure you are very good lawyers. 

Mr. JOHNSON. And my point is that your JAG lawyers are 

enablers. They empower, they do not prohibit. I am the top lawyer 

of the Department of Defense. I am here to work with the United 

States military to help them get the job done consistent with the 

rule of law. I am not there to stand in the way. And so I would 

like to respectfully disagree with the characterization. 

Now, having said that, I do want to address your other point. I 

think that where we are headed is a system where you have both 

systems of justice available for the interest of national security to 

put away the bad guys in one forum or another. We need to have 

both court systems available for law-of-war violations, for Federal 

criminal offenses. 

What we have right now is, frankly, a system that could be made 

better, that in the eyes of at least some falls short, and we have 

an opportunity to fix it for purposes of promoting national security. 

And I hope this Congress will take up that opportunity and do 

that. 

Mr. HUNTER. Okay. Let me move on, because I don’t know if that 

answered either of my questions. Let me—I am going to set a time, 

too. 

When you talk about cruel, inhumane, degrading treatment of 

detainees, do you think we should afford our military the exact 

same thing? Are we going to change boot camp? Are we going to 

change SERE [Survival, Evasion, Resistance and Escape] school? 

Because we humiliate and degrade our marines, and soldiers, and 
39 

sailors and airmen all the time. That is what—I mean, it is not fun 

sometimes being in the military; right? 

Mr. JOHNSON. Clearly it is not fun sometimes being in the military. 

Mr. HUNTER. We don’t get too much sleep. We are sleep-deprived; 

right? We don’t always get food. We don’t always get to eat three 

meals a day. So we are giving detainees better treatment than I 

got, than those JAGs sitting behind you got. 

I mean, if you went to Ranger School—I don’t know if either of 

you went to Ranger School. He is saying yes. I mean, he was humiliated and he was degraded. So are we going to make that same 

standard for detainees the same standard that we have too? 

Mr. JOHNSON. Without a doubt, Congressman, I will not disagree 

with you. Being in the military is hard, is difficult. You don’t always get three meals a day. But this is—please understand, sir, 

this is not about being nice to the bad guys. It is about American 

values, who we are as Americans, how we would want our people 

treated if they are captured. 

There was a discussion of reciprocity a moment ago—— 

Mr. HUNTER. I am out of time. I think the reciprocity argument 

is absurd. This is al Qaeda. This is evil incarnate. And what America does is win wars, and we don’t do it with bad law. We do it by, 

you know, killing the bad guys. 

But thank you very much. I appreciate it. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. 

It appears we have completed our first round. Before I go over 

to the second round—I know Mr. McKeon and some others wish to 

ask some questions—what you are asking of us is to look at the 

Senate language through your eyes and your recommendations. 

And as I understand it, you have five such recommendations, and 

I will try to condense them. 

The first is to prohibit the use of involuntary statements. The 

second is to further regulate the use of hearsay. The third is to 

modify the appellate process. The fourth is to state that a charge 

of material support, is not a commission that may be tried in—excuse me—an offense that may be tried in a commission. And the 

fifth is to establish a sunset on the use of the commissions. Am I 

correct? 

Mr. JOHNSON. Congressman, that sounds right to me. I don’t 

know that there is—— 

The CHAIRMAN. That is what you are doing; am I correct? 

Mr. JOHNSON. I believe so, except that I think—Mr. Kris can correct me. I think that we and the Administration are pretty satisfied 

with the current Senate language on hearsay. I could be wrong 

about that, but I think—— 

Mr. KRIS. I think our language is—— 

The CHAIRMAN. It would help if you would be very, very clear as 

to your recommendations to this committee. 

Mr. JOHNSON. We would be happy to do that. For the record, we 

would be happy to do that. 

The CHAIRMAN. Spell it out so we can understand it. Will you do 

that for us within 10 days? 

Mr. JOHNSON. Yes, sir. 
40 

The CHAIRMAN. We would appreciate it. 

[The information referred to was not available at the time of 

printing.] 

The CHAIRMAN. Mr. McKeon. 

Mr. MCKEON. Mr. Chairman, if I might defer to other members 

of the committee that have questions, I would be happy to do that. 

The CHAIRMAN. Who—we will just go down the line. Does Mr.— 

okay. 

Mr. Bartlett. 

Mr. BARTLETT. Yes. Thank you very much. 

You stated, Mr. Johnson, that we will not release prisoners to 

countries that torture. Does that mean that we have stopped extraordinary renditions? 

Mr. JOHNSON. As a general matter, Congressman, I think it is 

our view that an extradition should occur to bring people to justice, 

not push them away from justice, as a general matter. That would 

certainly be my view, and I think that is the view of the Administration. 

Mr. BARTLETT. And the extraordinary renditions that we are now 

approving, they are not going to countries that torture. 

Mr. JOHNSON. I hesitate to comment on specific military operations or actions. I just would state that general principle. 

Mr. BARTLETT. Would it not be a huge contradiction for the Administration to tell us that they are not going to release prisoners 

to countries that torture, and then to continue to approve extraordinary renditions to countries that they know darn well do torture? 

Mr. JOHNSON. Again, I hesitate to comment on specific operations. I am not sure what you have in mind. But as a general 

matter, that is my view and I think that is the Administration view 

also. 

Mr. BARTLETT. We have been talking a lot about cessation of hostilities. We have no intention of releasing these prisoners that we 

have already deemed to be so bad that we couldn’t release them 

even if the court determines that they are innocent. 

Why are we talking about cessation of hostilities? Doesn’t that 

just create problems for us in the future when we have withdrawn 

from Iraq, withdrawn from Afghanistan, and still hold prisoners? 

Mr. JOHNSON. Well, the question that the chairman asked of Mr. 

Kris is a good one: When does this war end? And there is no easy 

answer to that question. At least I haven’t heard one yet from an 

awful lot of very bright people. And so that is the reason why we 

think that we have law-of-war detention authority. But I think 

even the Supreme Court in the Hamdi case said circumstances 

could change, depending on how far out you go in this conflict, and 

it is the reason why we think some form of a periodic review of 

each detainee’s situation is appropriate, given the nature of this 

war, because there may come a point in the future when that person is no longer a threat or they are such that they could be transferred to some other country with appropriate security guarantees. 

Mr. BARTLETT. Questions asked by Mr. Forbes and Mr. Conaway 

elicited answers from you, both of you, I think, that indicated that 

if the courts found a detainee innocent that we knew was a really 

bad guy, that we weren’t going to release him. That begs a couple 

of very interesting questions. 
41 

One of them is: Haven’t we already judged him guilty by determining that he is so bad that no matter what the court does, we 

are not going to release him? And if that is so, why do we go 

through a court proceeding, particularly in a military tribunal? 

Sir, there are millions of people in the world that when you mention military tribunal, they cringe because of their association with 

military tribunals. I know ours are different, sir, but this is psychology; and in this area perception is reality, and the reality is 

that military tribunals have little credibility around the world. I 

think ours are very good. I have no problem with them. I am not 

talking about the problem I have with them; I am talking about 

the problem that the world has with them. 

It just makes the point that I made, sir, in my first round of 

questioning. I am not sure why we are here. I am not sure why 

we bought this trouble. I try to follow my mother’s counsel that you 

shouldn’t borrow trouble. If we yet could move these prisoners to 

an international court, why don’t we do that? We bragged that this 

was not our war. We bragged this was a coalition. Why are we burdened with this as a single nation when this was a war of a coalition? Why don’t we move these prisoners to an international arena 

and avoid all of the national stigma that we are going to get from 

these proceedings, no matter what we do and how careful we are? 

Mr. JOHNSON. Well, Congressman, I would urge that we not 

think about a decision to detain a captured belligerent as an adjudication of guilt or innocence. I think the comment that was made 

earlier was that that is not law enforcement—that is not a law enforcement context. 

When the United States military makes a determination that 

they should detain a belligerent on the battlefield, that is not an 

adjudication of guilt. That is a decision, for reasons of national security and safety, that that person needs to be retained—detained 

so that they don’t return to the fight. That is very different from 

an adjudication of guilt or innocence. 

I would try to answer your question by saying that military commissions, in my judgment, should not be judged as in any way second-class justice. You say that there is that perception out there. 

Well, let me try to address that perception. Our JAGs cherish the 

UCMJ. They cherish notions of justice. There are some excellent 

JAGs that I work with every day who are committed to that process. 

The CHAIRMAN. I thank the gentleman. 

It appears Mr. Forbes is next. 

Mr. FORBES. Thank you, Mr. Chairman. 

And to Mr. Johnson and Mr. Kris, thank you both for being here. 

I know it is tough. I know it is long. But you keep saying you want 

us to get it right. We can’t do that unless we ask tough questions. 

Mr. Kris, you told me earlier that you wanted to talk about the 

Administration’s position. I am going to ask you about that, if I 

can, on some of these issues. When was the last time that you were 

at Guantanamo Bay on behalf of the Administration, or in your capacity? 

Mr. KRIS. It was sometime within the last few months, I think. 

Mr. FORBES. When you were down there, you noticed the security 

that we had for many of the detainees because often times they are 
42 

throwing feces through the door, urine through the door. We have 

double doors on some of the detainees. We have guards that are 

well-trained, as everybody talked about the professionalism here, 

looking on each prisoner every three minutes. They don’t move 

anywhere unless they are with a naval officer. They are also shackled when they are getting interrogations, questioning, or when they 

are having medical treatments, because they could very easily grab 

a pin and stab it through a nurse’s eye. That is what all the professional people told us when we were down there. 

Mr. Courtney raised the suggestion earlier about the general 

prison population in the United States. Is the Administration even 

contemplating putting those prisoners with the general prison population in the United States? Is that even a possibility? 

Mr. KRIS. I think the answer to your question is no, for a variety 

of reasons—— 

Mr. FORBES. And, if the answer is no, then it is meaningless 

what Mr. Courtney raises about the general population. 

Mr. KRIS. Well, I am not—I mean—in fairness—— 

Mr. FORBES. Let me ask you a follow-up question. You can respond any way you want to, in written statements. But where do 

we have in the United States that type of security, and what kind 

of capacity do we have there now to be able to put these prisoners? 

Mr. KRIS. Well, I think there is two different questions there. 

One: Should it be a BOP [Bureau of Prisons] facility; that is, a Federal criminal civilian facility, or a military base or military facility 

in the United States? So that is one distinction. With respect to 

just the BOP side of it, I think if I have the numbers right, that 

we have about more than 200 terrorism-related people already in 

custody, including 33 at the Supermax facility—— 

Mr. FORBES. But the Supermax facility, isn’t that 95 percent full 

all the time, according to what the Department of Prisons has told 

us or the Bureau has—— 

Mr. KRIS. That number sounds plausible, but I guess the point 

is we can hold some very, very bad people. 

Mr. FORBES. All right. Let me follow up on that. You looked also 

at the tribunal, the facilities that we built down in Guantanamo 

Bay to be able to house these military proceedings. You also know 

it is very important that is the only one SCIF-ed in the United 

States, because we have security matters that could come up and 

we have to have a 40-second delay between testimony and between 

statements and between when it is released to the people watching. 

We were told there is not another facility in the United States 

that has those capabilities, or like that. Do you disagree with the 

information we were given at Guantanamo Bay? 

Mr. KRIS. I think this is something Jeh—Mr. Johnson—— 

Mr. FORBES. I will let Mr. Johnson answer that if he could. 

Mr. JOHNSON. The facility you referred to is first-rate, absolutely. 

It is an expeditionary facility. It was built that way. It was built 

with the intention that it someday would be moved. 

Mr. FORBES. If—you mean you are talking about moving that facility to somewhere in the United States? Is that even a possibility? 

Mr. JOHNSON. If we moved the detainees, we would move the facility. 
43 

Mr. FORBES. Then if you did that, and you only have one of these 

facilities, you wouldn’t have—or even entertain the possibility of 

transferring these individuals across the country, back to the trial 

proceedings, because they have motions and everything else. You 

would have to locate those prisoners near in conjunction with that 

facility; isn’t that true? 

Mr. JOHNSON. Ideally we would keep the detainees who are being 

prosecuted in military commissions someplace close to the facility. 

Mr. FORBES. So everybody that you would have decided that is 

going to be prosecuted through a military commission would need 

to be located near that site; isn’t that correct? 

Mr. JOHNSON. That would be my optimum solution. Whether it 

actually happens that way, I am not sure. But that would be an 

efficient way to do it; yes, sir. 

Mr. FORBES. Would the Administration even entertain putting 

them in other parts of the country and transferring them, with the 

security risk that might be present there, to the hearings they 

would have before the military tribunals and the actual proceedings that would take place there? 

Mr. JOHNSON. Ideally, as Mr. Kris would tell you, in dealing 

with—with civilian criminal defendants who are prosecuted, you 

want to keep them close to a courtroom. 

Mr. FORBES. And, Mr. Johnson, my time is almost up. My question is: Would the Administration even entertain not doing that? 

Mr. JOHNSON. That would not be—that would not be an efficient 

scenario. 

Mr. FORBES. Thank you. 

Mr. Chairman, thank you so much for your patience, and I yield 

back. 

The CHAIRMAN. Thank you very much. 

Mr. Conaway. 

Mr. CONAWAY. Yes, sir. In the interest of prolonging the misery 

of our panelists, I do want to talk again, back on the forward-looking issue, and that is the authorization of use of force. We had testimony from one of your colleagues last year that said: In my professional opinion that it would be both constitutional and prudent 

to confirm the military’s authority to detain al Qaeda, Taliban, and 

associated forces. 

It was a Mr. Kadis that testified last—last year. He was a Bush 

appointee, I suspect. 

Mr. Kris, your thoughts on that? 

Mr. KRIS. If I understand the—excuse me—if I understand the 

question correctly, I think the President believes that with respect 

to the Gitmo population—— 

Mr. CONAWAY. Again, I am not—I couldn’t care—this question 

has nothing to do with Gitmo. This is a forward-looking question. 

We have got a Judge Bates who has said that habeas corpus applies to Pakistanis taken in Pakistan and brought to Afghanistan. 

And so please don’t go back to Gitmo. 

Mr. KRIS. I beg your pardon. 

Mr. CONAWAY. You can go back to Gitmo all you want, but this 

is a forward-looking question. 

Mr. KRIS. I think with respect to forward-looking, I mean to the 

extent that we need to have long-term law-of-war detention, that 
44 

is something I think the President has made clear he wants very 

much to work with Congress on. And if we need it, I think it might 

be something that we would consider statutory authority for. That 

is getting out ahead, because right now we are focused on the near 

term. I don’t want to go back to Guantanamo, but it is—— 

Mr. CONAWAY. So are you planning to proffer that legislative fix 

that you believe is necessary? We all want to be able to make sure 

that the President has got all the authority he or she ultimately 

needs to deal with this issue. Have you got legislation in mind yet? 

Mr. KRIS. No. We really—I don’t think we are there yet. 

Mr. CONAWAY. All right. Just one last thing, Mr. Chairman. 

Other than public opinion, in terms of—and how we can talk 

about Gitmo. Other than public opinion, is there any—what other 

reasons do we have for closing that facility? Will these prisoners be 

safer somewhere else? Will they be better cared for somewhere 

else? Will it be cheaper somewhere else? Is the treatment better? 

I mean—is there anything other than just our—it is legitimate, Mr. 

Bartlett—is there any rational reason, given that we have got trillions of dollars of pending deficits ahead of us, that we would spend 

new money on replicating Gitmo somewhere else in the United 

States? 

Mr. JOHNSON. The reason to close Guantanamo, sir, is not just 

some lofty notion of symbolism. Lots of people, a cross-section, bipartisan, from John McCain, George W. Bush, Barack Obama, have 

said Guantanamo should be closed. Why have they said that? Because Guantanamo is a bumper sticker for al Qaeda. 

Mr. CONAWAY. Okay. So you are still talking about public perception. I am saying—is there? Help me—— 

Mr. JOHNSON. I am talking about national security, sir. I am 

talking about this enhancing national security by closing this facility. 

Mr. CONAWAY. Okay. So if we replicated Gitmo, and it is—as you 

said, we are going to move it into the United States, doesn’t the 

bad guy still have the exact same issue? So it really is about the 

perception that we are dealing with and not any of the mechanics. 

You said earlier in your testimony that—and I agree with it, having been there myself—that this is a—you couldn’t keep these people in a facility any better than what they are going to be kept in. 

In fact, when we move them into a Federal prison, they will probably have some course of action against us for having lowered their 

standard of living by moving them into the—into a prison here in 

the United States, given what they are coming out of in Gitmo. But 

is there anything besides just perception, written large? 

Mr. JOHNSON. There are tangible national security reasons 

why—— 

Mr. CONAWAY. That are unrelated to perception. 

Mr. JOHNSON [continuing]. The facility needs to be closed, and we 

are determined to do that. 

Mr. CONAWAY. All right. So we will spend new dollars—— 

Mr. JOHNSON. And, sir, I can tell you that for high-value individuals who we determine we must detain, we will detain them in a 

facility as secure, if not more secure, for the safety of the American 

people. That, I think I can give you some pretty good assurance on. 
45 

Mr. CONAWAY. Okay. I have got no question. This whole false argument that they might escape from whatever facility we keep 

them in is a red herring. I don’t think anybody in their right mind 

thinks any of these people will ever escape. 

So anyway, thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thank you. Before I call on Mr. McKeon, does 

anyone else wish to ask a question? 

Mr. Hunter. 

Mr. HUNTER. Thank you, Mr. Chairman. 

First I would like to, you know, clarify one of my statements so 

I don’t get chased down by a JAG tomorrow myself. We didn’t release somebody and then shoot them; we had somebody that we 

had to release, found them in Fallujah again, and they were fighting us. And we saw them again. They had been killed at that point. 

And also I understand that JAGs are enablers. I am talking—but 

the way that they have to do it, they have to play around the law 

as well. They have to try to make things work for us on the ground 

that is law that is made here by DOD, and it makes it difficult for 

everybody on the ground trying to make things work. 

But the JAG Corps itself I think is good. But it is the law here 

that they have to deal with. So my question is this: And—If we 

threaten or we verbally abuse during—and help me out here. I am 

not even leading to any certain line of questioning for any particular answer. If we bust down a door and we threaten somebody, 

you know, shove a rifle in their face, kick them down, yell at them, 

threaten them verbally to get an answer out of them and they give 

that answer, what does that count as in this whole scheme of 

things? 

Mr. JOHNSON. Well, again it depends on the circumstances. What 

we are advocating is a voluntariness standard that takes account 

of that battlefield reality. 

The other point I would make is that we can’t let the tail wag 

the dog here. We can’t let the law enforcement mission, which is 

an important one for national security, overcome the essential mission of the United States military. And that was part of that letter 

I read earlier. The military’s mission is to capture and engage the 

enemy. That is what they do, and I don’t want them to do it any 

way different at the point of capture than they do it now, just to 

make Mr. Kris happy. 

Mr. HUNTER. You don’t think the MCA is going to change anything on the ground? It will be the same as it is now when it comes 

to the actual point of engagement? 

Mr. JOHNSON. I don’t believe that the reforms in the MCA that 

are in the Senate bill, or that the Administration is proposing, 

would or should alter how the military does its job at the point of 

capture; that is correct. 

Mr. HUNTER. Okay. Thank you very much. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Mr. Rooney. 

Mr. ROONEY. Thank you, Mr. Chairman. 

As quickly as I can, going off what Mr. Hunter was just saying, 

when you talked about voluntary versus reliability—and it seemed 

that Admiral McDonald was sort of saying that, you know, reli-
46 

ability with elements of voluntary was the preference and—but you 

were going voluntary with elements of reliability. Why is he wrong? 

Mr. JOHNSON. Well, first I respect Admiral McDonald a lot and 

I respect his views on this issue. It is one he and I have discussed 

extensively. We think that there should be a voluntariness requirement versus it just being a factor, because we think that military 

commission judges, courts, what have you, are going to try to impose that anyway as we have more and more of these prosecutions. 

So as a requirement, we ought to get it right and make sure that 

it accounts for all of the circumstances that Congressman Hunter 

is concerned about. So we are advocating a voluntariness standard, 

but it has got some good language in there that we are happy to 

put forward for the record within the 10 days that I think is sufficiently flexible to take account of the battlefield. And when you 

look at it, it is really not that far from what Admiral McDonald is 

saying. 

Mr. ROONEY. Okay. And I am assuming that because we are sort 

of going down uncharted territory here, because we are fighting a 

nonconventional-type enemy in a nonconventional war, we are sort 

of setting new rules for what Mr. Hunter—his scenario has. 

Assuming we move forward here—and let’s just speculate country X, a true country, North Korea, China, whoever, and we go 

back to a conventional war, do these rules apply to future conflicts, 

or do they just apply to the conflict that we are in now with kind 

of an enemy that is undetermined, be it nationally or under a common flag? Are we setting new rules of engagement, new laws of 

war for all conflicts moving forward; or if we fight a conventional 

war, do we go back to the old system? 

Mr. JOHNSON. Well, the Military Commissions Act and the Senate bill, on—by their terms, refer to unlawful enemy combatants or 

unprivileged enemy belligerents. In other words, people who violate 

the laws of war. The bill does not redefine the laws of war. It does 

not redefine substantively the laws of war. And as the chairman 

noted, what we are advocating is a sunset provision to deal with 

changed circumstances. 

Mr. ROONEY. Right. 

One last thing and this goes to Mr. Conaway again. You were 

talking about national security, the stigma of Guantanamo Bay. I 

asked Mr. Holder on the Judiciary Committee if the stigma—if 

there is a stigma with Guantanamo Bay, is—does that still hold 

after a trial; evidence comes out, this guy is a really bad guy, he 

needs to be put away for the rest of his life, everybody agrees with 

that, why can’t Guantanamo turn from a detention center to an actual prison? And Mr. Holder at that time said, you know, the stigma is still there. He would, I think, agree with you that there may 

be national security—a bumper sticker for al Qaeda. 

What I am saying is, doesn’t it take leadership at the highest 

level from you, from Mr. Holder, from the President, to say to the 

world and the global community the stigma is wrong? We are holding these people in a first-class facility with people that are doing 

things the best way possible, giving them the utmost care with regard to their culture and everything else. And not to say that 

Supermax can’t hold them. We know that, you know, they—sure, 

they are more than capable. But why do we have to react to what 
47 

a bumper sticker for al Qaeda might say, rather than take leadership and say this is the reality, this is the new stigma, this is the 

new reality? Why can’t we do that? 

Mr. JOHNSON. First of all, I think we tried that. Second, I think 

that the leadership to be exerted here is to respond to the call of 

people from both parties, both of the last two Presidents, this one 

and the last one, and say let us get it done. Okay, everyone wants 

to close Guantanamo, or at least a lot of people want to close Guantanamo. Let us get it done. Let us make the bureaucracy work and 

impose a deadline on doing so. That is what I think the leadership 

should be doing. 

Mr. ROONEY. I understand what you are saying. But again, as so 

many of my colleagues, having been there, having seen the facility, 

having been told how much money we spent there—and quite 

frankly are still spending and still building down there, which is 

insane—but anyway, in this day and age, I think that is, you know, 

part of the problem a lot of us have, that we can’t sort of redefine 

what the reality is. 

Thank you, Mr. Chairman. Thank you. 

The CHAIRMAN. I thank the gentleman. Before I call on Mr. 

McKeon, let me urge our witnesses that should you have additional 

materials you would like to submit to our committee, feel free to 

do so. But it would be very helpful if you could do it within 10 days 

of today, plus the recommendations that I referred to a few moments ago. 

Mr. McKeon. 

Mr. MCKEON. Thank you very much, Mr. Chairman. And thank 

you very much for letting us continue. I know this is a very important issue to all of us, and I know the chairman is going to be going 

to Guantanamo and will get a firsthand view of what is going on 

down there. 

I referred in my opening statement that my opinion changed 

after having had the opportunity to visit it. All I had seen from 

Guantanamo was the pictures that we all saw a few years ago that 

caused, apparently, this problem, that caused this perception that 

has caused all these problems. 

And I would like to associate myself with the questions of Connolly—Mr. Conaway—I gotta get that out of my head. I have only 

known him for several years and I keep wanting to call him the 

wrong name—and Mr. Rooney because, frankly, the comments you 

made, Mr. Johnson, about how things are different down there and 

what the job that is being done down there now— there was an ad 

in one of our papers here on Capitol Hill, the Capitol, a couple of 

days ago, an ad run by one of our prison guards from our Federal 

prisons asking for more help, more guards. And I met with Federal 

prison guards a few months ago and they told me that at times one 

guard is in a yard with 700, 750 prisoners, and he said, They could 

kill me at any time. 

I guarantee if he were in a yard with these prisoners at Guantanamo, it wouldn’t have to be 700. He would have been dead. These 

are guys that have one purpose in life, and I may be generalizing 

there, but I think that most people that have had the opportunity 

to interrelate with them would have that same conclusion. 
48 

I think you indicated that in your testimony that they are very 

dangerous individuals. We have down there a thousand guards for 

these—a little over 200 prisoners, and they are very careful and 

they still have problems. They would go on hunger strikes. There 

are a few leaders that they said they have separated, but they still 

get the word back to the other prisoners: We want you to go on a 

hunger strike; we want you to commit suicide; we want you to kill 

a guard; these kinds of things, and they carry out those orders. 

As much security as there is there, I don’t think we have to 

worry about terrorist attacks from the outside, which I think we 

would have to worry about anywhere that we had them in the 

States, and it just—it seems to me that if we could do what Mr. 

Rooney suggested, come to a new reality, have the leadership really 

say, look, you know, in this time of economy, this time of—we are 

still at war. We have got real financial problems in the country. I 

think that that facility—the courthouse alone costs $12 million. 

You said they could move it somewhere, and I think you are probably referring to inside the courtroom, the desks and those kinds 

of things. The wiring, the ability to do the translating, the things 

that Mr. Forbes talked about, would—I think would cost us a tremendous amount of money to duplicate anywhere here in the country. I think there would be political opposition on a grand order. 

I used to be on a city council. I know what it takes to get a building permit to build a building. There would be people that would 

be fighting this thing. The delays would be years, not weeks or 

months, before a facility could be built to handle them, to do this 

situation. 

The prosecutor told us that if he could be allowed to move forward, he could wrap this up in three years. And maybe he is optimistic. Say, four years; I don’t know. You have a better feel for 

that. But to think that we could duplicate what we have there, 

somewhere here in the country, without the opposition that would 

come from it, without the—all of the problems that would be associated with this kind of a move, let alone the security problems 

that are involved, I just wish we could really step back and take 

a real look at all of these circumstances before we move forward 

in a judgment—and maybe that is why the President asked for a 

six months—or the Commission asked for six months more to look 

at this. I think reality really needs to be brought to bear here. 

I thank you again for what you are doing. I think you did a tremendous job of telling your side of the story and carrying out what 

your mission is. 

Mr. Chairman, I thank you for your desire to go down there. You 

are a tremendous chairman for this committee and I appreciate all 

that you do. And with that, I yield back. 

The CHAIRMAN. Mr. McKeon, thank you so much. 

Mr. Johnson and Mr. Kris, we appreciate your testimony today. 

Please submit to us what else will be helpful, including the official 

recommendations that we referred to a few moments ago. 

[The information referred to was not available at the time of 

printing.] 

The CHAIRMAN. With that, we are adjourned. 

[Whereupon, at 1:34 p.m., the committee was adjourned.] 
A P P E N D I X 

JULY 24, 2009 

PREPARED STATEMENTS SUBMITTED FOR THE RECORD 

JULY 24, 2009 

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DOCUMENTS SUBMITTED FOR THE RECORD 

JULY 24, 2009 

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QUESTIONS SUBMITTED BY MEMBERS POST HEARING 

JULY 24, 2009 

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QUESTIONS SUBMITTED BY MR. SKELTON 

Mr. SKELTON. In Admiral MacDonald’s written testimony, he advocated for a twotrack approach for determining the admissibility of allegedly coerced statements. If 

a statement was elicited for the purpose of intelligence in the proximity of the battlefield, he seemed to argue that the statement should be admitted if the interrogator was acting in accordance with the laws of war and the statement was deemed 

to be reliable. If the statement was elicited for the purpose of a possible prosecution 

or was secured in a location that is not close to the battlefield, then he seemed to 

argue for applying a totality of the circumstances analysis to determine the voluntariness of the statement and thus its admissibility. 

Do you agree with this balanced approach? If not, why not? 

How would you define ‘‘proximate to the battlefield’’? Would interrogations that 

occurred in a Theater Internment Facility fall within the second track—that is locations that are not proximate to the battlefield? How about at an internment facilities below the TIFs? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. SKELTON. Since Congress considered the Military Commissions Act, I have 

warned about the danger of promulgating rules and procedures which are constitutionally deficient and subject to court challenge. The last thing that we want is to 

convict an individual for terrorism and then have that conviction overturned because of fatal flaws in this Act or the accompanying Manual for Military Commissions. 

I believe that the Administration’s proposed changes to the Manual and the Senate Armed Services Committee’s revisions to the Military Commissions law itself 

begin to address my concerns. 

What further changes, if any, are necessary to fix the remaining deficiencies in 

the existing Military Commissions Act or the version proposed by the Senate? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. SKELTON. In Admiral MacDonald’s written testimony, he advocated for a twotrack approach for determining the admissibility of allegedly coerced statements. If 

a statement was elicited for the purpose of intelligence in the proximity of the battlefield, he seemed to argue that the statement should be admitted if the interrogator was acting in accordance with the laws of war and the statement was deemed 

to be reliable. If the statement was elicited for the purpose of a possible prosecution 

or was secured in a location that is not close to the battlefield, then he seemed to 

argue for applying a totality of the circumstances analysis to determine the voluntariness of the statement and thus its admissibility. 

Do you agree with this balanced approach? If not, why not? 

How would you define ‘‘proximate to the battlefield’’? Would interrogations that 

occurred in a Theater Internment Facility fall within the second track—that is locations that are not proximate to the battlefield? How about at an internment facilities below the TIFs? 

Mr. KRIS. The Administration believes there is a significant risk courts will find 

that the Due Process Clause applies to military commission proceedings, and that 

due process requires that statements of the accused offered in the context of commission proceedings must have been voluntarily given. A standard based on reliability alone would be vulnerable to a constitutional due process challenge in those 

cases where a military commission construed it to allow the admission of involuntary statements of the accused. The use of such statements might then be subject 

to reversal on appeal. Accordingly, there arc compelling legal and policy reasons to 

include an express voluntariness requirement. 

That said, we believe that any voluntariness requirement for military commissions cases should account, consistent with the law, for the context in which statements later considered by military commissions can occur. Specifically, the Administration has proposed the following as an alternative to § 948r of the Senate bill, 

which includes a voluntariness standard for military commissions cases, as well as 
76 

a clearer prohibition on the use of any statement obtained by torture or cruel, inhuman, or degrading treatment: 

‘‘§ 948r. Treatment of statements obtained by torture or cruel, inhuman, 

or degrading treatment; self-incrimination; other statements by the accused 

‘‘(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR CRUEL, INHUMAN, 

OR DEGRADING TREATMENT.—No Statement obtained by use of torture or by 

cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color 

of law, shall be admissible in a military commission under this chapter, except 

against a person accused of torture or such treatment as evidence that the 

statement was made. 

‘‘(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to testify 

against himself at a proceeding of a military commission under this chapter. 

‘‘(c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may 

be admitted in evidence in a military commission under this chapter only if the 

military judge finds that the statement was voluntarily given. In determining 

whether a statement is voluntarily given, the military judge shall consider the 

totality of the circumstances, including, as appropriate, the details of the taking 

of the statement, accounting for the circumstances of the conduct of military 

and intelligence operations during hostilities; the characteristics of the accused, 

such as military training, age, and education level; and the lapse of time, 

change of place, or change of identity of the questioners between the statement 

sought to be admitted and any prior questioning of the accused. 

The Administration can also support the following, which has the support of the 

Army, Navy, and Air Force Judge Advocates General, the Staff Judge Advocate to 

the Commandant of the Marine Corps, and the Legal Counsel to the Chairman of 

the Joint Chiefs of Staff: 

‘‘§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, 

or degrading treatment; prohibition of self-incrimination; admission of 

other statements of the accused 

‘‘(a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR CRUEL, INHUMAN, 

OR DEGRADING TREATMENT.—No statement obtained by use of torture or by 

cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color 

of law, shall be admissible in a military commission under this chapter, except 

against a person accused of torture or such treatment as evidence that the 

statement was made. 

‘‘(b) SELF-INCRIMINATION PROHIBITED.—No person shall be required to testify 

against himself at a proceeding of a military commission under this chapter. 

‘‘(c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may 

be admitted in evidence in a military commission under this chapter only if the 

military judge finds— 

‘‘(1) that the totality of the circumstances renders the statement reliable 

and possessing sufficient probative value; and 

‘‘(2) at least one of the following: 

‘‘(A) That the statement was made incident to lawful conduct during 

military operations at the point of capture or during closely related active combat engagement and the interests of justice would best be 

served by admission of the statement into evidence. 

‘‘(B) That the statement was voluntarily given. 

‘‘(d) DETERMINATION OF VOLUNTARINESS.—In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge 

shall consider the totality of the circumstances, including as appropriate, the 

following: 

‘‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during 

hostilities. 

‘‘(2) The characteristics of the accused, such as military training, age, and 

education level. 

‘‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused. 
77 

Mr. SKELTON. What factors will be considered to determine when an end of hostilities has been achieved and, thus, continued detention is no longer justified under 

the Supreme Court’s Hamdi decision and the laws of war? 

Mr. KRIS. A plurality of the Supreme Court concluded in Hamdi v. Rumsfeld, 542 

U.S. 507 (2005), that ‘‘Congress has clearly and unmistakably authorized detention 

of those individuals covered in the 2001 Authorization to Use Military Force 

(AUMF)’’ and that ‘‘[t]he capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice’ are ‘important incident[s] of war.’ ’’ Id. at 518–19. According to the plurality, 

the grant of detention authority in the AUMF is best understood to endure ‘‘for the 

duration of the relevant conflict,’’ although this understanding ‘‘may unravel’’ if the 

circumstances of the conflict are ‘‘entirely unlike those of the conflicts that informed 

the development of the law of war.’’ Id. at 520–21. 

Based on Hamdi, the Administration believes the detention authority provided 

under the 2001 AUMF, as informed by the law of war, will continue so long as the 

United States remains involved in active hostilities against al Qaeda, the Taliban, 

and affiliated forces. In the current circumstances, active hostilities are unlikely to 

end pursuant to a peace treaty, armistice, capitulation, or a dispositive military operation. In other contexts, the Supreme Court has indicated that ‘‘[w]ar does not 

cease with a cease-fire order,’’ Ludecke v. Watkins, 335 U.S. 160, 167 (1948), and 

that the ‘‘power to be exercised by the President [in that case, the power to expel 

enemy aliens] is a process which begins when war is declared but is not exhausted 

when the shooting stops.’’ Id. ‘‘ ‘The state of war’ may be terminated by treaty or 

legislation or Presidential proclamation. Whatever the modes, its termination is a 

political act.’’ Ludecke, 335 U.S. at 168–69. At a minimum, we believe active hostilities will continue—and detention of enemy forces will be authorized—as long as 

the United States is involved in active combat operations against such forces. In 

reaching the determination that active hostilities have ceased, we would likely consider factors that have been recognized in international law as relevant to the existence of an armed conflict, including the frequency and level of intensity of any continuing violence generated by enemy forces; the degree to which they maintain an 

organizational structure and operate according to a plan; the enemy’s capacity to 

procure, transport and distribute arms; and the enemy’s intent to inflict violence. 

QUESTIONS SUBMITTED BY MR. MCKEON 

Mr. MCKEON. The Department of Justice recently argued in the Maqaleh case 

that the Boumediene decision only affected the habeas statute’s application to detainees at Guantanamo Bay and nowhere else. Does the Administration still hold 

this view regarding the detainees in Afghanistan? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. Why did the Administration decide to favor prosecution in federal 

criminal courts? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. Did the TJAGs advise the Task Force against stating this preference for federal courts? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. According to the current Chief Prosecutor for the Military Commissions, the prosecution of the 9/11 coconspirators could be completed within 24–36 

months in a military commission. 

Do you share this assessment? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. How long do you think it would take if the case were removed and 

restarted in federal court? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. Do you think an Article III court can adequately protect sources 

and methods in the same manner as the military commissions have proven they 

can? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. In April, Judge Bates on the D.C. district court recognized a right 

of habeas for particular detainees held at Bagram Air Base in Afghanistan, specifi-
78 

cally those captured outside of Afghanistan. In a recent Wall Street Journal Article, 

legal scholars David Rivkin and Lee Casey asserted that this ruling has already 

caused the military to decrease its operations in the Afghan-Pakistan border region 

to avoid claims by detainees that they were captured outside of Afghanistan. 

Do you agree with this assertion? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. Are any of the Task Forces recommending that the Administration 

change the standard to include refusing to transfer if a detainee might experience 

cruel, inhuman, or degrading treatment in a potential host country? 

Mr. JOHNSON. [The information referred to was not available at the time of printing.] 

Mr. MCKEON. The Department of Justice recently argued in the Maqaleh case 

that the Boumediene decision only affected the habeas statute’s application to detainees at Guantanamo Bay and nowhere else. Does the Administration still hold 

this view regarding the detainees in Afghanistan? 

Mr. KRIS. Yes. The Government has appealed the lower court’s decision in the 

Maqaleh case, which extended habeas corpus rights to detainees held at the Bagram 

Air Base in Afghanistan. The position argued by the Government in that litigation 

remains the Administration’s position. 

Mr. MCKEON. Why did the Administration decide to favor prosecution in federal 

criminal courts? 

Mr. KRIS. Federal courts are well-established, with clear rules and years of precedent to draw on. Federal courts also have long-standing experience trying complicated cases, including terrorism cases, and a proven and recent track record of 

prosecuting and convicting terrorists. That said, the Administration is committed to 

using all elements of national power and authority—including both federal courts 

and military commissions—to defeat our enemy and to advance the interests of justice. Under the protocol jointly developed by the Departments of Defense and Justice 

to determine whether individual cases will be tried in a federal court or military 

commission, there is a ‘‘presumption that, where feasible, referred cases will be 

prosecuted in an Article III court,’’ but that presumption can be overcome where 

‘‘other compelling factors make it more appropriate to prosecute a case in a reformed military commission.’’ 

Mr. MCKEON. Did the TJAGs advise the Task Force against stating this preference for federal courts? 

Mr. KRIS. The Administration’s policy that, where feasible, suspected terrorists 

should be prosecuted in Article III courts is reflected in Executive Order 13492, 

signed by the President on January 22, 2009, his second full day in office. It is also 

reflected in the speech the President delivered at the National Archives on May 21, 

2009. This policy did not originate with the Detention Policy Task Force. In addition, the prosecution protocol adopted by the Department of Justice and the Department of Defense states that ‘‘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.’’ The Chief Prosecutor of the Office of Military Commissions (who 

is a JAG) was consulted in the course of the negotiation of this protocol and provided advice concerning it. The TJAGs’ own views about prosecuting suspected terrorists in federal courts or by military commission are reflected in the testimony 

they gave before the House Armed Services Committee on July 16. Vice Admiral 

MacDonald, the Navy Judge Advocate General, said, for example, ‘‘I understand the 

administration may have, and we may have, some reasons for looking towards Article III courts . . . that may cause us in a particular case to defer to an Article III 

prosecution. But I think at the end of the day, we need to build a [military commissions] system that can stand on its own.’’ The Administration is working with Congress to do exactly that. 

Mr. MCKEON. According to the current Chief Prosecutor for the Military Commissions, the prosecution of the 9/11 coconspirators could be completed within 24–36 

months in a military commission. 

Do you share this assessment? 

Mr. KRIS. How long the cases will ultimately take will depend on a number of 

factors. The Chief Prosecutor’s estimate sounds reasonable to us. 

Mr. MCKEON. How long do you think it would take if the case were removed and 

restarted in federal court? 

Mr. KRIS. If these cases were brought in federal court, the Department of Justice 

would indict the defendants promptly and would prosecute vigorously. We would 
79 

like to obtain justice as quickly as possible. How long the cases will ultimately take 

will depend on a number of factors. 

Mr. MCKEON. Do you think an Article III court can adequately protect sources 

and methods in the same manner as the military commissions have proven they 

can? 

Mr. KRIS. Yes. Federal courts have a long, successful track record in handling 

classified evidence and protecting sensitive sources and methods, including in international terrorism cases. 

Mr. MCKEON. In April, Judge Bates on the D.C. district court recognized a right 

of habeas for particular detainees held at Bagram Air Base in Afghanistan, specifically those captured outside of Afghanistan. In a recent Wall Street Journal Article, 

legal scholars David Rivkin and Lee Casey asserted that this ruling has already 

caused the military to decrease its operations in the Afghan-Pakistan border region 

to avoid claims by detainees that they were captured outside of Afghanistan. 

Do you agree with this assertion? 

Mr. KRIS. As you are aware, this issue of habeas rights for individuals held at 

Bagram is the subject of ongoing litigation in the Maqaleh v. Gates case, and we 

therefore cannot comment on the issues presented in the case. That being said, the 

essential mission of the U.S. military is to capture or engage the enemy, and the 

military should not be required to change how it conducts effective military operations to suit the needs of possible habeas proceedings. We in the Administration 

strongly believe that the detention policy framework the Administration is developing, in consultation with the Congress and consistent with court rulings, should 

not and will not cause the military to deviate from this mission. 

Mr. MCKEON. Are any of the Task Forces recommending that the Administration 

change the standard to include refusing to transfer if a detainee might experience 

cruel, inhuman, or degrading treatment in a potential host country? 

Mr. KRIS. The Special Task Force on Interrogation and Transfer Policies is considering issues raised by the transfer of detainees from or through United States custody to the custody of another country. Currently, as a matter of law and policy, 

the United States will not transfer anyone to another country if it is determined 

that it is more likely than not that the transferee will be tortured in the receiving 

country. The Task Force is considering whether this standard should be changed as 

a matter of policy. 

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