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51–347 PDF 2009

PROPOSALS FOR REFORM OF THE 

MILITARY COMMISSIONS SYSTEM 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 30, 2009 

Serial No. 111–26 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 30, 2009 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 4 

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties ................................................................ 6 

WITNESSES 

The Honorable David Kris, Assistant Attorney General, National Security 

Division, Department of Justice 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

The Honorable Jeh Charles Johnson, General Counsel, Department of Defense 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

Colonel Peter R. Masciola, USAFG, Chief Defense Counsel, Office of Military 

Commissions—Defense 

Oral Testimony ..................................................................................................... 38 

Prepared Statement ............................................................................................. 41 

Major David J. R. Frakt, USAFR, Lead Defense Counsel, Office of Military 

Commissions—Defense 

Oral Testimony ..................................................................................................... 90 

Prepared Statement ............................................................................................. 92 

Mr. Steven A. Engel, Dechert LLP 

Oral Testimony ..................................................................................................... 108 

Prepared Statement ............................................................................................. 111 

Mr. Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz 

Lecturer in Law, Yale Law School 

Oral Testimony ..................................................................................................... 123 

Prepared Statement ............................................................................................. 126 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 149 

(1) 

PROPOSALS FOR REFORM OF THE 

MILITARY COMMISSIONS SYSTEM 

THURSDAY, JULY 30, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:55 p.m., in room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Delahunt, Jackson Lee, and 

King. 

Staff present: David Lachman, Majority Subcommittee Chief of 

Staff; Heather Sawyer, Majority Counsel; Matthew Morgan, Majority Professional Staff Member; and Paul Taylor, Minority Counsel. 

Mr. NADLER. Ladies and gentlemen, unfortunately the hearing is 

going to have to wait on the votes on the House floor. 

As you can see, there are 8 minutes and 29 seconds, which probably means closer to 101⁄2 minutes, left on the first vote. But after 

that, there are 14 more votes, most of them 2-minute votes. 

But there is a motion to recommit, which is a 10-minute debate 

and a 25-minute—and a 15-minute vote, so it is probably going to 

be about an hour. And I apologize, but the hearing is going to have 

to wait for those votes to be completed. 

So thank you for coming, but we just have to wait for the—I 

apologize to the witnesses, but thank you. 

[Recess.] 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights and Civil Liberties will come to order, with the 

agreement of the minority. And we expect a minority Member here 

shortly. 

I recognize myself—excuse me—first for an opening statement. 

Today the Subcommittee—and let me, before I do the opening 

statement, I apologize for everyone here, including the witnesses, 

for the fact that this is almost 2 hours getting—late getting started, but that was unavoidably, as you know, because of the votes, 

which I assume you saw up there. 

And you can thank everybody there. We now have, by unanimous 

consent, 2-minute votes, not 5-minute votes, or we would be there 

another hour. 

I now recognize myself for an opening statement. 

2 

Today the Subcommittee examines proposals for reform in the 

military commissions system and, more importantly, how we in 

Congress can work together productively and with the Administration to clean up the terrible legacy of the Bush administration’s detention policies in a manner that provides us with a legitimate 

legal framework going forward. 

Over the past 7 years, approximately 800 individuals have been 

detained at Guantanamo, Cuba, with some 500 already having 

been released before President Obama took office in January. 

In those 7 years, only three detainees have been convicted of terrorism offenses using the military commissions, and approximately 

230 individuals remain at the facility. 

Most of these men have been held for at least 4 years. Some have 

been detained for more than 6 years. By contrast, approximately 

200 individuals have been charged with international terrorism, 

prosecuted, convicted and sentenced to long prison terms using our 

normal Article III Federal courts. 

These numbers speak for themselves, yet the Obama administration, after initially halting use of the military commissions and beginning an in-depth case-by-case review of the individuals still 

being detained at Guantanamo, has said that the commissions are 

necessary. 

Why? The general explanation is that military commissions provide the flexibility that is necessary to account for ‘‘the reality of 

battlefield situations and military exigencies,’’ such as chain of custody concerns, the need to use hearsay statements, and an appropriate test for determining whether incriminating statements were 

coerced or voluntary under the circumstances. 

This might explain the need in cases where an individual is 

caught in the heat of battle, but it does not explain the need for 

military commissions in other circumstances. 

My concern remains, as I articulated at our hearings a few weeks 

ago, that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely 

if we have no evidence. That is not a justice system. 

Mohammed Jawad’s case, which was again before a Federal 

judge today, provides just one example. At our hearing a few weeks 

ago, Lieutenant Colonel Vandeveld, the lead military prosecutor responsible for bringing Mr. Jawad to justice in the military commission system, testified that he resigned because he could not ethically or legally prosecute the case. 

After discovering exculpatory evidence had been withheld from 

the defense and determining that Mr. Jawad’s confession, the only 

evidence against him, had been obtained through torture, Lieutenant Colonel Vandeveld was unable to convince his supervisor to 

reach a plea agreement that would have allowed Mr. Jawad’s release and return to his family after nearly 7 years in Guantanamo. 

Convinced that it was not possible to achieve justice through the 

military commission system, Lieutenant Colonel Vandeveld felt he 

had no choice but to resign his post. 

A military judge and a Federal judge have since ruled that Mr. 

Jawad’s confession was obtained through torture. In the Federal 

habeas corpus proceedings, the judge has called the case ‘‘an outVerDate Aug 31 2005 10:47 Oct 15, 2009 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073009\51347.000 HJUD1 PsN: 51347
3 

rage’’ and has urged the Administration to send Mr. Jawad, who 

may have been 12 years old when captured in 2002, home. 

It is my understanding that at a hearing this morning the judge, 

in fact, ordered his release. 

Mr. Jawad’s case is not an anomaly. In 26 of the approximately 

31 habeas corpus cases brought by Guantanamo detainees and decided so far, Federal judges have concluded that the government 

does not have sufficient evidence to justify or continue the detention. 

These numbers are staggering—not one case, not two, but in 85 

percent of the cases when an individual finally has gotten meaningful review, Federal judges have found that there was no grounds 

for detention. This is a stain on American justice. 

Not only has the system served as a tremendous recruiting tool 

for our enemies, it has proven legally unsustainable and unjust. We 

would challenge such a system set up by another country to detain 

and try Americans. We should demand no less of ourselves. 

The detainees at Guantanamo and other individuals who we may 

capture today or tomorrow are accused terrorists. They are not terrorists. They are accused terrorists. Some may be terrorists, but 

right now they are accused terrorists. They have not been proven 

to be terrorists. 

And while officials in the previous Administration were fond of 

claiming that its detainees at Guantanamo were the worst of the 

worst, the Bush administration released the vast majority of them, 

approximately 500 in all. Apparently the Bush administration did 

not really think they were the worst of the worst. 

The people who we have detained because they were turned over 

to us by someone with a grudge or by someone who wanted to collect a bounty do not belong in custody. 

We have an obligation to determine who should and should not 

be imprisoned and to afford fair trials to those we believe have 

committed crimes. This is especially important if our government 

plans to seek prison sentences or to execute those convicted. 

There is no doubt that keeping America safe is paramount. We 

must decide how to deal with these individuals in a manner that 

ensures that our Nation is protected from those who would do us 

harm, in a manner that is consistent with our laws, our treaty obligations and our values. 

We are the United States of America, and we have traditions and 

beliefs worth fighting for and worth preserving. This problem will 

not go away simply because we close Guantanamo. We are still 

fighting in Afghanistan and Iraq. We are still battling terrorists 

around the world. 

We will continue to have to intercept and detain individuals who 

have attacked us or who threaten us. We need to be sure that, 

however we handle these cases, we do not conduct kangaroo courts. 

This debate has been dominated by a great deal of fearmongering. That is no way to deal with a problem of this magnitude. Fanning the flames with the unfounded claim that it is a 

threat to our national security to transfer individuals to the U.S. 

for detention and trial defies logic and reality. 

We have long housed and prosecuted dangerous criminals and 

terrorists in my district and elsewhere. It is an insult to our law 

4 

enforcement and military to suggest that they cannot do the same 

with regard to those individuals that we have been holding at 

Guantanamo. 

Others have argued that because some individuals released from 

Guantanamo have turned to battle, we must now hold all others 

forever. But we are not a police state. In order to imprison anyone, 

we must have sufficient evidence to do so. 

Much as some people would like to drop detainees down a hole 

and forget about them, this is simply not an option legally or morally. It is also not necessary. 

We are not the first country in history to have to deal with potentially dangerous people. Indeed, this is not the first time this 

country has had to deal with potentially dangerous people. 

I do not underestimate the enormity of the challenge both from 

a security standpoint and a legal one, but we can and will find solutions that honor the rule of law, and in so doing keep us safe. 

I look forward to the testimony of our witnesses with confidence 

that you will be able to provide guidance as we look forward. I 

thank you. I yield back the balance of my time. 

Now, did the gentleman from Iowa wish to give an opening statement for the minority? 

Mr. KING. I would like to give an opening statement representing 

myself, Mr. Chairman. 

Mr. NADLER. The gentleman is recognized. 

Mr. KING. Thank you, Mr. Chairman. 

I wanted to give my thanks and appreciation to the witnesses 

that are about to testify and this hearing that I am not particularly 

enthusiastic about having—I have watched this unfold over the last 

years since September 11, and it appears to me that we are moving 

in a direction away from national security and a direction towards 

making us more vulnerable to attack. 

I have gone down to Gitmo and visited Gitmo. I don’t believe that 

there has been any place or any time in history that—I won’t declare them to be, let’s say, accused terrorists. I will say they are 

enemy combatants. 

And I don’t think enemy combatants—and the implication includes as well prisoners of war—that have ever been treated as 

good as the inmates are down at Guantanamo Bay—air conditioned 

facilities, three squares a day, nine choices from the menu, 100 

minutes of prayer time every day—the list goes on. 

And yet our guards are attacked every day, multiple times a day, 

and we don’t have any recourse to punish those prisoners. 

But we are here to examine the path that might be taken and 

a path that might be opened, and I am concerned that it might end 

up in opening up our prison gates and turning people loose onto 

this society that are the worst of the worst. 

And I don’t concede that they are anything else. That is the reason they are there. This Administration wants to find a way to relieve themselves of the burden of the—you know, the inmates down 

at Guantanamo Bay. 

I have read the executive order. The date of its—the drop-dead 

date to empty out Guantanamo Bay is January 22, 2010. It hangs 

there on the bulletin board in the commons room at Guantanamo— 

or the commons area at Guantanamo Bay, in English and in AraVerDate Aug 31 2005 10:47 Oct 15, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073009\51347.000 HJUD1 PsN: 51347
5 

bic, so that when they gather together after their soccer game or 

around the edge of their foosball table they can read that promise 

from the President of the United States that they will not be there 

1 day longer than January 22, 2010. 

We heard yesterday before a hearing from Mr. Forbes of Virginia 

that he had just returned from there within the last 2 weeks, and 

he articulated a path by which we might be considerably more vulnerable, and that path is the one that is charted out before us now. 

So I am concerned that if we bring people to the United States, 

judges do things we cannot anticipate. And if we had 100 percent 

confidence that we had picked up battlefield evidence and that we 

could convict people that were actually guilty with that evidence 

and release people that were not guilty with that evidence, then I 

wouldn’t have any trepidation about bringing them to the United 

States and trusting a Federal judge, or whatever the mechanism 

might be. 

But in the meantime, we are dealing with what Congress has enacted and the President signed into law, a military commission system that granted unlawful enemy combatants more rights and 

more procedural protections than they had ever enjoyed before anywhere in the world. And that is all throughout human history. 

These protections include the presumption of innocence; the imposition of the burden of proof on the prosecution; the right to 

counsel, either military or civilian, at American taxpayers’ expense, 

at the discretion of the accused; the right to be presented with the 

charges in advance of the trial; access to interpreters, as we do in 

this country, so that they understand the proceedings and the 

charges against them. 

And there will be—there is a prohibition against any negative inference from a refusal to testify. They aren’t compelled to testify or 

be a witness against themselves or anyone, and so that is—access 

to reasonably available evidence and witnesses, access to investigative resources as necessary for a full and fair trial. The list goes 

on. 

And so however this unfolds, I want America to remain as safe 

as it has been since the September 11 attacks in 2001. I think that 

this Congress acted quickly. I think that the military conducted 

themselves within the law in an honorable fashion. And I understand the difference in opinion that we have. 

But in the end, no nation respects the rule of law more than the 

United States of America. No nation has treated its enemy combatants as well as we have treated these. No nation has provided air 

conditioning in the Caribbean the way we have. 

And we need to also find a way to resolve this, and I understand 

that. It is a difficult conundrum that has been accelerated by the 

executive order, which I think was motivated more from a political 

judgment than it was a judgment of reality. 

And I will support the President in any alteration he might have 

of that that will provide more safety for the American people. I look 

forward to the testimony. 

And I yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. 

And I now recognize the gentleman from Massachusetts for an 

opening statement. 

6 

Mr. DELAHUNT. Yes, I didn’t intend to give an opening statement, 

but I think it is important that I respond to my good friend from 

Iowa. 

I would make the point that national security and justice are not 

exclusive. In fact, I would submit that Guantanamo has been a prolific tool for terrorists to multiply and to recruit others. The existence of Guantanamo has led to an increasing number of terrorists 

all over the world. We have a different view of that. 

Now, I am glad to hear that my friend has been down to Guantanamo. In my former life, I happened to be the state’s attorney up 

in the greater Boston area. I have been to a lot of prisons. I have 

put a lot of people there, in some cases for the rest of their lives. 

But I always hoped I was doing justice. 

You know, the concept of a presumption of innocence is not something that threatens me. And I think that presumption of innocence is a genuine American value. That is what we are about. 

That is what we are truly about. 

And I have been a severe critic of the Bush administration, and 

I am sure that, you know, some here have applauded the policies 

of the former President and Vice President. But I think it is interesting to note that in excess of 500 of the worst of the worst were 

released by the Bush administration. That seems somewhat inconsistent to me. 

But I also think it is interesting that while the gentleman from 

Iowa went and had the tour of Guantanamo and seems to know 

something about the detainees there and their daily existence, I am 

sure that he did not have an opportunity to talk to them. 

He is shaking his head in the affirmative. I will yield to the gentleman. I would like to hear what conversations he had with the 

detainees. 

Mr. KING. Well, thank you for yielding, and I will note first that 

those that have been released are the best of the worst, and the 

ones left are the worst of the worst. 

But I did talk to some of them, and the conversation was limited, 

and I think that is what the gentleman from Massachusetts expects. One of them came over to the fence and he said, ‘‘I don’t 

have a Russian-language Koran. That is unjust. You must get me 

a Russian-language Koran.’’ So that was the level of the angst 

I—— 

Mr. DELAHUNT. Did you have an opportunity to have interaction 

with them? 

Mr. KING. That was interaction, yes, although I didn’t walk 

among them like I might other inmates because—— 

Mr. DELAHUNT. Okay. 

Mr. KING [continuing]. It is too dangerous. 

Mr. DELAHUNT. Well, let me remind the gentleman that both myself and the Ranking Member—I happen to Chair the Subcommittee on Oversight of the House Foreign Affairs Committee, 

and I have been invited many times to Guantanamo. 

And I would have accepted that invitation, as would my colleague, Mr. Rohrabacher, if we were given an opportunity to actually sit down with the detainees and inquire of them. 

Now, at a hearing—oh, I think it was maybe last week or 2 

weeks ago, we had a hearing relative to the interaction between 

7 

the Chinese intelligence agents that were provided access to the 

Chinese Muslims called Uighurs who are a persecuted minority by 

the Chinese. You might have noted over the course of the past 

month or so there has been thousands detained. 

According to a woman who leads the diaspora, Rabiya Kadir, who 

will be with us tomorrow—and I would hope that the gentleman 

could come and listen to her—there are 10,000 that are still missing. 

They were given the opportunity over a 10-day period to interview the Uighurs where they were interrogated, where they were 

intimidated, and where they were threatened. 

That is what I think we have a right to hear, because—and it 

might interest the gentleman that our Republican colleague Mr. 

Rohrabacher and I are both convinced that those Uighurs, if resettled here in the United States, would contribute to the United 

States because they are opposed to al-Qaida and Taliban and any 

form of terrorists. 

I dare say they are more aptly described as the Tibetans who are 

persecuted by the Communist Chinese intelligence agents who 

haven’t been heard from, who have not been heard from. 

And I think I will yield there, but I think my good friend gets 

the message. Oh, by the way, it wasn’t just the Chinese intelligence 

agents that were down there. And we know that their history and 

their record in terms of human rights, and the fact that they have 

executed and tortured Uighurs, according to our own State Department, for decades now. 

In addition to that, there were two—there were several detainees 

from Uzbekistan who received—whose intelligence agents and security agents were also invited in to have the kind of interaction 

which I think would be very, very informative for this panel and 

for this Congress to have, and we were denied it. 

With that, I yield back. 

Mr. NADLER. I thank the gentleman. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing, which the Chair will do only in the event of 

more votes or some catastrophe. 

We will now turn to our witnesses. As we ask questions of our 

witnesses, the Chair will recognize Members in the order of their 

seniority on the Subcommittee, alternating between majority and 

minority, provided that the Member is present when his or her 

turn arrives. 

Members who are not present when their turns begin will be recognized after the other Members have had the opportunity to ask 

their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

I would like to welcome our first panel. David Kris is the assistant attorney general for national security. Mr. Kris was an attorney in the criminal division from September 1992 to July 2000, 

where he worked primarily in appellate litigation. 

As associate deputy attorney general from July 2000 to May 

2003, Mr. Kris’ work focused on national security issues, including 

8 

supervision the government’s use of the Foreign Intelligence Surveillance Act, representing the department at the National Security 

Council, and assisting the attorney general in conducting oversight 

of the intelligence community. 

Mr. Kris also taught at Georgetown University Law School and 

served as a non-resident senior fellow at the Brookings Institution. 

Mr. Kris graduated from Haverford College in 1988 and Harvard 

Law School in 1991. Following law school, he served as a law clerk 

for Judge Stephen Trott on the Ninth Circuit Court of Appeals. 

Jeh Charles Johnson is the general counsel of the Department of 

Defense where he serves as the chief legal officer of the Department of Defense and legal advisor to the secretary of defense. 

Mr. Johnson began his career in public service as an assistant 

United States attorney in the Southern District of New York, 

where he prosecuted public corruption cases. He was in private 

practice at the firm of Paul Weiss Rifkind Wharton & Garrison. 

In October 1998, President Clinton appointed Mr. Johnson to be 

general counsel of the Department of the Air Force. He served in 

that position for 27 months. 

I am pleased to welcome you both. Your written statements—and 

again, I apologize for the delay. Your written statements in their 

entirety will be made part of the record. I would ask each of you 

to summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow and then red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. 

[Witnesses sworn.] 

If you would please stand and raise your right hand to take the 

oath. 

Do you swear or affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your 

knowledge, information and belief? 

Mr. KRIS. I do. 

Mr. NADLER. Let the record reflect the witnesses answered in the 

affirmative. 

You may be seated. 

Mr. Kris? 

TESTIMONY OF THE HONORABLE DAVID KRIS, ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE 

Mr. KRIS. Thank you very much, Mr. Chairman. And thank you 

and all of the Members of the Committee for inviting me here to 

testify. 

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

process and the rule of law. 

In the 1990’s, I prosecuted a group of violent antigovernment extremists. And like their modern counterparts, they engaged in 

what would now be called ‘‘lawfare.’’ As a result of that, the trials 

were very challenging. 

9 

But the prosecution succeeded not only because it incarcerated 

the defendants but also because it deprived them of legitimacy for 

their antigovernment and other extreme beliefs. 

Military commissions can help do the same for those who violate 

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

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

as illegitimate war criminals. 

To do that effectively, however, the commissions themselves 

must first be reformed. And the legislation that is now pending in 

Congress is a tremendous step in that direction. If enacted with the 

changes that we have suggested, it will make military commissions 

both fundamentally fair and effective. 

And with that, I think I will stop, and I will be happy to answer 

any questions. Thank you. 

[The prepared statement of Mr. Kris follows:] 

10 

PREPARED STATEMENT OF THE HONORABLE DAVID KRIS


Kris-1.eps
11 


Kris-2.eps
12 


Kris-3.eps
13 


Kris-4.eps
14 

Mr. NADLER. I thank you. 

Mr. Johnson? 

TESTIMONY OF THE HONORABLE JEH CHARLES JOHNSON, 

GENERAL COUNSEL, DEPARTMENT OF DEFENSE 

Mr. JOHNSON. Thank you, Mr. Chairman. Like Mr. Kris, I will 

dispense with the full reading of my prepared statement. You have 


Kris-5.eps
15 

it for the record. I would just like to make a few observations very 

briefly and then look forward to your questions. 

First, I can’t help but recall that my career in public service 

began 32 years ago this summer, where I spent a lot of time in this 

room with my congressman, Hamilton Fish Junior, who rose to be 

Ranking Member of this Judiciary Committee when I was a college 

intern for him. And I remember him fondly. 

It is apparent to me—and I am aware of the sharp difference of 

opinion about these issues concerning Guantanamo and military 

commissions that exist on this Subcommittee and in this Congress. 

And it is my hope that during this session we can try to educate— 

respond to your questions in a forthright, meaningful way. 

The President in May decided that the Administration could go 

forward with reformed military commissions, after a lot of consideration and thought by the President personally and by members of 

the Administration. In May we in the Department of Defense proposed five rule changes to military commissions procedure. 

Most significantly, and the one that I am personally most proud 

of, is the elimination of any possible use in evidence in a military 

commissions trial of statements taken as a result of cruel, inhuman, degrading treatment. 

That one change alone, in my personal opinion, will do more to 

restore the credibility of military commissions, and it was one that 

we did with the unanimous support of our judge advocate generals 

in the military service and a lot in the military lawyer community. 

The Senate, as you know, passed legislation to reform the Military Commissions Act. That legislation was passed as part of the 

authorization bill on July 23. We and the Administration think 

that the bill identifies virtually all the issues for reform and 

change. 

We look forward to working with the Congress, House and Senate, on further changes that the Administration and the Congress 

may wish to make. Mr. Kris and I testified last week before the 

House Armed Services Committee concerning that bill. 

And we look forward to responding to your questions concerning 

the pending legislation or detainee affairs generally. 

One thing I will add concerning Guantanamo generally—and this 

was alluded to by the Members of the Committee—I will submit respectfully that many Members of Congress go to Guantanamo Bay, 

come back and are impressed with what they see today. And I will 

submit that is not the issue. 

The issue is that al-Qaida needs recruitment tools, and al-Qaida, 

in fact, uses Guantanamo Bay, Abu Ghraib and other rallying cries 

as recruitment tools to their cause. There are published reports of 

al-Qaida using Guantanamo Bay as recently as 2008. Bin Laden 

personally uses Guantanamo Bay as one of his bumper-sticker recruitment tools. 

So a cross-section of national leaders from John McCain, President Obama, General Powell—George W. Bush said he would like 

to see Guantanamo Bay closed—have all caused—called for the closure of Guantanamo Bay not just for symbolism reasons but for 

reasons of enhancing national security. 

This President, when he took office, recognized that large Federal bureaucracies work best with a deadline and imposed a deadVerDate Aug 31 2005 10:47 Oct 15, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073009\51347.000 HJUD1 PsN: 51347
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line on us for doing so. And we remain committed to closing Guantanamo Bay in this Administration. 

Thank you very much. Look forward to your questions. 

[The prepared statement of Mr. Johnson follows:] 

PREPARED STATEMENT OF THE HONORABLE JEH CHARLES JOHNSON


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Mr. NADLER. Thank you. 

I will now recognize myself for a period of questioning. 

First, Mr. Johnson, you have testified on a number of occasions 

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dividuals, relying on the authorization for the use of military force 

and the Supreme Court’s Hamdi decision regarding the detention 

of individuals captured on the battlefield during wartime, for the 

duration of hostilities to ensure that they do not return to the fight. 

How does the Administration propose to identify those who truly 

are ‘‘individuals captured on the battlefield?’’ And what proves that 

someone falls into this category? And what is the process that will 

be provided to make this determination? 

And let me just amplify that a bit. We talk about military commissions for war crimes. We talk about how we convict someone of 

a war crime. But we also have the duty to keep someone from returning to the fight—to keep combatants off the streets whether 

they committed the crime or not. 

If you captured someone wearing a Wehrmacht uniform in World 

War II in Normandy carrying a rifle, there wasn’t too much question he was a combatant and he was a prisoner of war. 

But how do we—the question is what process is there to determine that someone who claims he isn’t a combatant is, in fact, one 

if he is captured, A, either near the battlefield or on the battlefield, 

or somewhere else? 

What process do we—I mean, what kind of process will be—is afforded after the fact or before the fact? 

Mr. JOHNSON. Well, if you talk about the current population in 

Guantanamo, virtually, I think, all of them are suing us in habeas 

litigation right now. One of the first things this Administration did 

was to revise the definition of what we say is our detention authority. 

We did that in a filing by the Department of Justice in several 

of these cases on March 13th, 2009. And what we did was we are 

no longer using the phrase ‘‘unlawful enemy combatant.’’ 

And as you noted, Mr. Chairman, we are relying more closely on 

the authorization for the use of military force passed by the Congress in 2001 as informed by the laws of war. And there is a paragraph that we are now asserting as our detention authority which 

will be tested in these habeas cases case by case. 

Mr. NADLER. Okay. The authority is one thing, but how—what 

is the process? There has got to be some process for determining 

going forward. And yes, the habeas corpus process, by default, is 

being used now for people who were in Guantanamo for a long period of time. 

But if we captured someone tomorrow and we suspect he is a 

combatant, and he says, ‘‘No, I am not,’’ what is the process for determining whether he is a combatant and can be held for years? 

Mr. JOHNSON. Well, prior to this Administration coming to office, 

what existed was a review process that involved—I am going to use 

acronyms—ARBs and CSRTs—Administrative Review Boards 

and—— 

Mr. NADLER. Which the Supreme Court said was—— 

Mr. JOHNSON [continuing]. Combatant Status Review—which has 

been suspended. 

The President called for some process of periodic review—in 

other words, if we prevail in a habeas case, we are not going to just 

simply throw away the key and forget about the person. We are 

going to have a process of periodic review. 

21 

Mr. NADLER. What is the initial process, a habeas case? 

Mr. JOHNSON. The initial process is a form of board that should 

occur within a period of days after a person is captured. And we 

are developing that process now. 

Then after a period of time—and we are—this is in the midst of 

review right now—whether it 6 months, 12 months—there will be 

another look to make the threat assessment, to review the detention authority, and then after a period of years there may be some 

heightened level of review. 

But there will be, as the President has called, some form of periodic review to make a threat assessment that will involve—— 

Mr. NADLER. That is making a threat assessment after—but 

what due process is there for someone who says, ‘‘You got the 

wrong guy. I am not an enemy combatant. I had nothing to do with 

this?’’ 

Mr. JOHNSON. Well, the Boumediene case—— 

Mr. NADLER. Which case? 

Mr. JOHNSON [continuing]. Granted the Gitmo detainees the 

right to habeas. 

Mr. NADLER. So you are saying you would have to—the only 

process is the habeas process? 

Mr. JOHNSON. No, I would expect, as I said, that there will be 

some form of periodic review, initially and then over time, irrespective of the litigation. 

Mr. NADLER. And this is for people captured on or near a battlefield. Do we still claim the authority to pick up someone in London 

or in Peoria and say they are an enemy—whatever we are calling 

them now—they are a combatant? 

Mr. JOHNSON. Obviously, Mr. Chairman, it depends on the circumstances. There is litigation right now concerning the Bagram 

detainees where Judge Bates found that those captured away from 

Afghanistan had habeas rights. The government has appealed that. 

He did not find that with respect to those who were captured in 

Afghanistan. 

And so we have asserted that those captured away from the battlefield, as you referred to it, do not have habeas rights in Afghanistan. With regard to the Guantanamo population, the Supreme 

Court has resolved that issue with the Boumediene case. 

Mr. NADLER. The time has expired. 

The gentleman from Iowa? 

Mr. KING. Thank you, Mr. Chairman. 

Let me pick up where that is. Mr. Johnson, as I understand what 

you said—is that those captured in Afghanistan have not at this 

point successfully made a habeas claim. 

Mr. JOHNSON. That is correct. 

Mr. KING. And is it the Administration’s position that they would 

resist any habeas filings for those that—those enemy combatants 

that were picked up in Afghanistan? 

Mr. JOHNSON. Well, we haven’t really been tested in that regard. 

The Department of Justice has appealed the ruling of Judge Bates 

with regard to those captured away from the battlefield who are 

detained in Afghanistan, so the implication of that is that the Administration view, I believe, is that there should not be habeas for 

22 

those captured in Afghanistan, detained in Afghanistan. That is 

the implication or the—implication. 

Mr. KING. It is not certain yet at this point. 

Mr. JOHNSON. With regard to the habeas remedy. 

Mr. KING. Can you tell me how many have been successful of 

Guantanamo detainees with their habeas filing? 

Mr. JOHNSON. I don’t have the exact number. The Chairman 

made a reference to it. I don’t have the exact number offhand. I am 

happy to provide that to you. 

Mr. KING. Let me just suspect—Mr. Kris, do you know that number? 

Mr. KRIS. I don’t know the exact number either, but what Chairman Nadler said sounded plausible. 

Mr. KING. We are dealing with a universe, though, that would 

be not those that were picked up in Afghanistan or in—probably 

in another terror-sponsoring country, but those that were picked up 

either on the streets or any in America, on U.S. soil, or—do we 

know of any that have been picked up outside of U.S. soil that were 

not on what we would consider to be a battlefield that have succeeded in a habeas filing? 

Mr. JOHNSON. The way I can answer that question for you, sir, 

is that the overwhelming majority of the Guantanamo detainees 

were captured in Afghanistan. 

Mr. KING. Yes. 

Mr. JOHNSON. Okay. I don’t have the exact numbers for you, but 

I—— 

Mr. KING. No, we will look that down—and I appreciate that answer. 

And I wanted to explore a little bit, too, the—Guantanamo Bay 

as a recruitment tool and Osama bin Laden using that as recently 

as 2008. I have seen a film that I believe they have used multiple 

times that is a film of Guantanamo detainees in orange suits that 

are seated with—I believe they are handcuffed with their hands 

perhaps in front rather than back. They show them being sat down 

all in a group, then back up again. Have you seen anything like 

that? 

Mr. JOHNSON. I am sure I have seen that film, yes, sir. 

Mr. KING. Yeah, and it is—I know it is fairly general. But I will 

submit that that film was taken when their—on their arrival at 

Gitmo or prior to that rather than anything that is going on at 

Gitmo now. 

So I will suggest that whatever might happen with the closing 

of Gitmo, which I expect will happen by the date in the executive 

order, that it will not stop al-Qaida from using Gitmo as a recruiting tool, nor will they use—if we move them to a maximum security prison, since we all know that is—the human rights groups 

have already raised the issue and contended that they were inhumane at our Supermax prisons, we end up with the same circumstance. 

Have you contemplated that with regard to the national security 

question about the recruitment of al-Qaida? 

In other words, to put the—to compress this question down, does 

it really do us any good to close Gitmo if we are going to put people 

in maximum security prisons and have Amnesty International deVerDate Aug 31 2005 10:47 Oct 15, 2009 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073009\51347.000 HJUD1 PsN: 51347
23 

clare that they are in an inhumane situation? Isn’t that also a useful tool for al-Qaida? 

Mr. JOHNSON. I would respectfully suggest to the Congress that 

it does make a difference that Guantanamo Bay has been allowed 

to become that recruitment tool, and we are determined to create 

an alternative situation that doesn’t. 

Certain rallying cries get legs and some don’t. And we know that 

al-Qaida has been able to use Guantanamo Bay very effectively, 

and we are determined to disable them from doing that. And the 

way to do that is to close this facility as a detention facility. 

Mr. KING. Okay. Under this legislation that you discuss as part 

of your testimony, you testified that it would eliminate the utilization of any evidence that was gathered under—cruel, unusual and 

inhuman treatment I believe was the language. 

Now, does this bill, then—does it redefine terror—or, excuse me, 

does it redefine torture? 

Mr. JOHNSON. The Senate bill would prohibit use of statements 

taken as a result of cruel, inhuman, degrading treatment. 

Mr. KING. Does it redefine, though, cruel, inhuman, degrading 

treatment? 

Mr. JOHNSON. I don’t believe that it puts a definition on that 

phrase. 

Mr. KING. Okay. 

Mr. Kris, do you—— 

Mr. KRIS. I believe that is right. I mean, the Military Commissions Act—the prior legislation or the—legislation had prohibited 

admission of statements obtained by torture. 

This bill goes further following the rule change that Mr. Johnson 

referred to in prohibiting admission of statements obtained by 

cruel, inhuman, degrading treatment. I don’t think it tries to define 

that term. 

But there is—— 

Mr. KING. I appreciate that. 

I saw that light change immediately upon the ringing of the bell. 

But I—could I, Mr. Chairman, be indulged for 15 seconds to conclude a question? Thank you. 

Mr. NADLER. [Off mike.] [Laughter.] 

Mr. KING [continuing]. What I really am trying to find out here 

is is the meaning—is waterboarding affected by any of the language that we have discussed here? Is there any change in any language that might broaden this out to include waterboarding where 

it might have otherwise been interpreted to not be cruel, inhuman 

or degrading treatment? 

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

a reluctance to treat or define waterboarding as torture. I think in 

this Administration there has been no such reluctance. 

And so that would fall under the—as this Administration, I 

think, interprets torture, waterboarding would be out. 

Mr. KING. But it has not been redefined in law. 

Mr. KRIS. Well, the torture statute remains the same as it has 

been. 

Mr. KING. Yes. And that is what I wanted to clarify. Thank you. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

24 

The gentleman from Massachusetts is recognized. 

Mr. DELAHUNT. Thank you. 

And again, welcome to both of our witnesses. 

It is good to see you again, Mr. Kris. 

Mr. KRIS. Thank you. 

Mr. DELAHUNT. You know, Mr. Johnson, you used the term ‘‘captured’’ at or near the battlefield. I think that was alluded to by my 

friend from Iowa. 

Well, I mean, the reality is we can—I think it is important that 

we understand in many cases the term ‘‘capture’’ was a transfer 

from Pakistani intelligence and authorities to United States authorities. There was an intervening event. Is that a fair statement? 

Mr. JOHNSON. It is true that detainees come into U.S. detention 

through a variety of means. 

Mr. DELAHUNT. And I know this is not your intention, but to suggest that they were captured on or near the battlefield I would respectfully suggest is—or could be interpreted multiple ways, some 

of which are inaccurate. 

Let me cite the example again of the Uighurs. I am sure you are 

aware that they were captured, quote/unquote, or apprehended, 

taken into custody in Pakistan. 

They were then taken—after fleeing from Afghanistan, where 

they were residing because of the fear of Communist Chinese persecution, and that when they crossed the Pakistani border, they encountered a tribal group that provided them sustenance and led 

them to a Pakistani jail. 

And then the leaders of that particular tribal group were given 

$5,000 for each of those particular detainees. I am referring to four 

of them right now. Does that comport with your understanding of 

the situation? 

Mr. JOHNSON. I am not in a position to disagree with your characterization, Congressman. 

Mr. DELAHUNT. Okay. So I just put that out there because I 

think it is very important that we have to understand where our 

information is coming from. 

In these particular cases, I would suggest it is the Communist 

Chinese intelligence services and Pakistanis who sold them for 

$5,000 each. So I think it is easy to be on this side of the dais and 

talk about being captured at or near the battlefield. 

And that leaves an impression that they were out there with 

guns and hiding in the hills and shooting at Americans, when that 

is simply not the truth according to very, very solid information on 

the American side. 

Mr. JOHNSON. Congressman, let me—may I answer? 

Mr. DELAHUNT. Sure, please. 

Mr. JOHNSON. Yes. As you know, the district court ordered that 

the Uighurs be released—— 

Mr. DELAHUNT. Right. 

Mr. JOHNSON [continuing]. Last year. 

Mr. DELAHUNT. Right. 

Mr. JOHNSON. I would like to think that given the circumstances 

we in this Administration, in our review process, would have got 

to the same result on our own. 

25 

As you know, we have spent an enormous amount of time trying 

to find a country—— 

Mr. DELAHUNT. And I know that very well, and I congratulate 

you—— 

Mr. JOHNSON [continuing]. Successful to a limited extent. 

Mr. DELAHUNT. And I I have to tell you, by the way, that a Bush 

undersecretary, an undersecretary that was intimately involved in 

this, appeared before the Committee which I Chair over on the Foreign Affairs side that stated unequivocally that these Uighurs were 

wrongly imprisoned and that their entire story constituted a tragedy. 

But some, for whatever their motives may be, continue to want 

to create a fear, if you will, among the American public. And I 

think that does a huge disservice to what you are trying to accomplish. 

Having said all that, let me pose this question. And I know the 

task force is reviewing various plans, and I understand the difficulties. 

Is it still on the table that some—a few—detainees who have 

been cleared—that it could be, if you will, adjudicated—were never 

involved in any way threatening or—in conduct or behavior deleterious to the United States might be resettled into the continental 

United States? Has that been taken off the table or is that still—— 

Mr. NADLER. The gentleman’s time is expired, but the witness 

may answer the question. 

Mr. JOHNSON. Let me answer the question this way. Whatever 

decisions are being made, are being made, I believe, consistent with 

national security, consistent with public safety, the safety of the 

American people and the rule of law. 

We haven’t, at this point, so far as I am aware, made such a determination. There have been a number of transfer decisions made 

which I think I alluded to in my prepared statement, and we are 

more than halfway through the review process. 

But I want to assure everybody here that whatever decisions we 

make we make consistent with national security and public safety. 

Mr. DELAHUNT. I would encourage consultation with the United 

States Congress, the appropriate Committees of jurisdiction. 

Mr. NADLER. Thank you. 

We will have a second round of questioning, but since for that— 

after the votes. But since for that second round of questioning Mr. 

Johnson will not be here, I gather, since he has to leave, we will 

start the second—I am sorry, we will start—— 

Mr. JOHNSON. Congressman, I am happy to stay as long as you 

want me to stay, sir. 

Mr. NADLER. Oh, very good. Thank you. 

I will recognize the gentlelady from Texas. 

Ms. JACKSON LEE. Mr. Chairman, thank you, and thank you to 

your witnesses. We know that military commissions are—historically have been established where jurisdictional gaps exist, but 

they have not been—and I hope both of you agree—been created 

to obliterate or to ignore the importance of due process. 

So I would like to, first of all, quickly ask, do you have at Guantanamo Bay, to your knowledge, any minors, underage detainees, 

at this point? 

26 

Mr. Johnson, I am sorry? 

Mr. JOHNSON. I can think of at least two, including one referred 

to by the Chairman in his opening remarks, that the evidence suggests were teenagers at the time they were captured. 

Ms. JACKSON LEE. And during the course of your tenure, did you 

prosecute underage detainees through the military commissions? 

Mr. JOHNSON. Are you asking had we? 

Ms. JACKSON LEE. Yes. 

Mr. JOHNSON. The two detainees that I am referring to have 

pending military commissions cases against them. 

Ms. JACKSON LEE. But previously there were 800, 240 are left. 

Did the military commissions prosecute underage detainees over 

the course of the 800 that were detained? 

Mr. JOHNSON. I am sorry, I didn’t hear the number, ma’am. 

Ms. JACKSON LEE. I speculated that there were 800 detainees. 

Over the course of the detainees, did you prosecute underage detainees? 

Mr. JOHNSON. There are two cases that I just referred—— 

Ms. JACKSON LEE. Only two out of the 800? 

Mr. JOHNSON. There have been three completed prosecutions so 

far. I don’t believe any of the three completed involved detainees 

who were teenagers at any point. I don’t believe that to be the case. 

We have seven pending cases right now. One of them the Chairman referred to. 

Ms. JACKSON LEE. And only two of those are minor? 

Mr. JOHNSON. That is my understanding, yes. 

Ms. JACKSON LEE. Thank you. Let me just quickly go to this—— 

Mr. JOHNSON. At some point during their detention they were 

minors—you know, the evidence suggests. 

Ms. JACKSON LEE. You testified—and if this was a question that 

has been asked, let me just quickly ask it again—at several hearings that the Administration intends to assert its authority provided by the AUMF passed by Congress to detain individuals 

deemed dangerous for the duration of these hostilities. 

What, generally speaking, is the class of individuals who might 

possibly be detained under this authority regardless of the opportunity to access the criminal justice system? 

Who would fall under this category that would continue to be 

dangerous? And would they have any rights to appear before a 

commission or any other authority? 

Mr. JOHNSON. Well, as you know, the Boumediene case determined that the Guantanamo detainees have the right to habeas in 

Federal court. 

In addition to that, we in the Administration are developing a 

periodic review process with respect to any detainees who are in 

what the President refers to as the fifth category, people who are 

not prosecuted, not transferred, not released and, for reasons of national security, public safety, the government determines should be 

detained for reasons of—under law of war authority. 

And that category of detainees we are determined to develop a 

process of periodic review where they are given some access to evidence, some ability to contest what the government says about 

them. And as part of our detention policy review, we are developing 

that right now. 

27 

Ms. JACKSON LEE. If a detainee was to go through the Federal 

court system and be criminally acquitted, are they released or is 

there an additional detention that you would request? 

Mr. JOHNSON. Well, as I have stated previously, if we, the government, determine that there is law of war authority to detain a 

person for reasons of national security, safety and because of a 

threat assessment, that authority, we believe, exists—and I am answering just in terms of legal authority, not what we would actually do. 

As a matter of legal authority, that would be true irrespective of 

what happens in any criminal prosecution that Mr. Kris might 

bring or in a military commission. Now, whether we would actually 

do that, in my view, is an entirely separate matter. 

And in the three cases that have been completed, two received 

less than life sentences, and they have been transferred. They are 

no longer in U.S. detention. 

Ms. JACKSON LEE. Well, we thank you for your service. But as 

I am listening to you—and maybe as this commission finishes its 

work—it looks like it would be completely complex and perplexing 

to try to close Guantanamo Bay as the President has directed if we 

have continuing languishing individuals who have to be detained. 

Maybe we can pursue that later. But I thank you very much for 

your service. 

Mr. NADLER. The gentlelady’s time has expired. I thank the 

gentlelady. 

And as you notice, we have a series of votes again. There is 1 

minute and 56 seconds left on this first vote. There are three 5- 

minute votes after this. So we will adjourn—or recess, I should say. 

We will recess probably for about 20 minutes. 

I urge Members of the Committee to return as promptly as possible after the commencement of the last vote. 

I again apologize to the witnesses. 

And with that, the Committee stands in recess. 

[Recess.] 

Mr. NADLER. The hearing will reconvene, and I thank the witnesses again and apologize again. Hopefully this won’t happen 

again. 

I recognize myself for a few minutes. 

Mr. Kris, one quick question, and then I would like to explore 

some of the Administration’s additional suggestions on military 

commission—— 

Mr. KRIS. Yes. 

Mr. NADLER [continuing]. Reform. We requested that the Department of Justice produce the May 9 OLC legal opinion regarding application of the Constitution to military commissions. 

It is important that we have this as we are deliberating the reform. When do you think we might get that? 

Mr. KRIS. I have to say I don’t know, but I can certainly take it 

back and make clear that you want it quickly. This is a—— 

Mr. NADLER. We do want it quickly. We are going to be debating 

the military commissions reform presumably in the context of the 

conference report on the DOD authorization bill which has now 

passed both houses, so we will have the conference report shortly. 

28 

And if we get that OLC memo after the conference is over, it will 

be sort of—— 

Mr. KRIS. Less helpful. 

Mr. NADLER. Yes. Thank you. 

Now, Mr. Johnson, the Senate Armed Services Committee noted 

its concern with the difficulty that defense counsel has had obtaining adequate resources and ensuring learned counsel for capital 

cases. 

In his written submission, Colonel Masciola makes several recommendations. His first suggestion is that we amend the Military 

Commissions Act of 2006 to afford all counsel the ‘‘equal opportunity to obtain witnesses and other evidence,’’ thus replacing the 

current assurance to defense counsel only of a ‘‘reasonable opportunity.’’ 

So in other words, all counsel on both sides, prosecution and defense, would have equal opportunity to obtain witnesses and evidence, not simply the defense have a reasonable opportunity. 

This seems reasonable and important—in fact, crucial—to assuring a fair process. Can the Administration support that change? 

Mr. JOHNSON. Congressman, I have reviewed Colonel Masciola’s 

submissions. I have met with him on several occasions to discuss 

the issue of resources, the ability for him to do his job. I have met 

with him with our judge advocates general of each service to ask 

him what we can do to help better support him. 

I have not had an opportunity to carefully consider Colonel 

Masciola’s proposal. I think that there—I could foresee problems 

with codifying in the law in the abstract a requirement of equal access to witnesses, but I haven’t had an opportunity to carefully 

study his proposal. And I would want to be sure I understood the 

nature of it before we put something like that into law. 

But I agree that we need to focus on defense resources, defense 

experience, defense training. One thing that I am particularly interested in ensuring is that our defense counsel in potential capital 

cases receive adequate training. There are standards by the American Bar Association. 

And I am particularly focused on making sure that in capital 

cases the JAGs we send down there to do this know what they are 

doing, because those are obviously high-stakes cases. 

Mr. NADLER. I appreciate that, but also they need the ability to 

get witnesses and other evidence. And again, this will probably 

come up in the context of the conference—in the conference deliberations, so you say you are considering that. I hope you consider 

it quickly before the conference convenes, which may be soon. 

Mr. Kris, you have testified the Administration supports the Senate amendment that would ban statements obtained through cruel, 

inhuman or degrading interrogation methods, but that the Administration would recommend a voluntariness standard that goes further that ‘‘takes account of the challenges and realities of the battlefield and armed conflict.’’ 

Since the rationale of allowing flexibility for battlefield circumstances is difficulties caused by the heat of battle and the 

shared desire to ensure the safety of our troops, would you support 

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field capture and otherwise requiring voluntariness under standards applied by our courts in criminal cases or by the courts martial—in other words, limiting that less exacting standard to actual 

battlefield captures? 

Mr. KRIS. Sort of a battlefield carve-out from the voluntariness 

standard, is that what you are—— 

Mr. NADLER. Yes. 

Mr. KRIS [continuing]. Suggesting? 

Mr. NADLER. Yes. 

Mr. KRIS. So—— 

Mr. NADLER. In other words, you said that the—you said that the 

Administration would go further than the Senate—— 

Mr. KRIS. Yes. 

Mr. NADLER [continuing]. On the voluntariness standard—— 

Mr. KRIS. That is right. 

Mr. NADLER [continuing]. But they would have to take account 

of the challenges and realities of the battlefield and armed conflict. 

Mr. KRIS. Yes. 

Mr. NADLER. So would you support—would the Administration 

support going all the way off the battlefield toward the same voluntariness standard that we have in, let’s say, court martials, but 

having the taking account limited to battlefield situations? 

Mr. KRIS. Yes, if I understand your question, the Administration’s position is that the voluntariness standard, which is a dueprocess-based standard, is the appropriate standard, and our legal 

experts have made judgments about why the courts would likely 

impose that in any event. 

But we think that it is appropriate in thinking about that standard to take account of the realities of the battlefield and the military—— 

Mr. NADLER. I understand that and I appreciate that. My question is that taking account, which is presumably a lessening of the 

standard—would you limit that to battlefield capture situations? 

Mr. KRIS. Well, I want to—— 

Mr. NADLER. Because presumably if you—if someone is not arrested in a battlefield situation, you don’t have to take account of 

battlefield situations. 

Mr. KRIS. Well, yes. I mean, I think the way to answer that is 

that the voluntariness test is really a totality of the circumstances 

test, and this—by that, I mean the voluntariness test that you 

apply on the streets of Newark, New Jersey as well as the voluntariness test that you apply in Tora Bora or somewhere else. It is 

a totality test. 

And so I really think that it is not so much a different test as 

it is a test that accounts for the environment and the circumstances in which the statement is taken. 

So I think the answer to your question is we are actually talking 

about a voluntariness test that is, in the abstract, the same but in 

its application would take account of the—— 

Mr. NADLER. May be different, depending. 

Mr. KRIS [continuing]. Of the facts, yeah. 

Mr. NADLER. Okay. And—— 

Mr. JOHNSON. Congressman, can I help you there? 

Mr. NADLER. Sure. 

30 

Mr. JOHNSON. Let me read you some language along the lines of 

what I think the Administration is considering in this regard for 

a voluntariness standard applicable for military commissions cases. 

And the precise wording may be changed, but you will get the concept. 

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. 

Mr. NADLER. Okay. Thank you. 

Mr. Kris, the definition of unprivileged enemy belligerent in the 

Senate bill was amended on the floor of the Senate to include members of al-Qaida, without any—without requiring any showing that 

the individual actually engaged in or supported hostilities. 

What is the Administration’s position on this change? Is it legally 

defensible to use membership alone, and how would that be shown 

if it is? 

Mr. KRIS. Well, as I understand it, Congressman, this is a question of personal jurisdiction. And so you would have to show an actual law of war violation in order to bring a successful prosecution 

for that law of war violation in a commission or, if you were going 

to prosecute in a criminal court, you would have to show a crime 

there. 

Mr. NADLER. Membership in a terrorist group like al-Qaida 

would not be—— 

Mr. KRIS. I don’t think—— 

Mr. NADLER [continuing]. Would not be—— 

Mr. KRIS. I mean, as I understand that—that amendment, it is 

not meant to create an offense based on membership but that it is 

a jurisdictional provision. We are still, as an Administration, finalizing our position on that. 

But I will say that, for example, the authorization to use military 

force refers to people who are part of al-Qaida, which is at least 

similar to the member standard. 

Mr. NADLER. And is it defensible, in your opinion, to use membership alone? And how would that be shown? 

Mr. KRIS. Well, again, as a jurisdictional matter, I think it probably is defensible, subject to the caveat that we are still finalizing 

our position and, again, with the emphasis that to show a conviction and get a sentence you would have to show a violation. 

Membership could be shown in a variety of ways. I doubt you 

would—you sort of have to have a formal card-carrying member 

test. 

I mean, membership in an international terrorist group, for example, is currently in Federal law, in the FISA statute—you would 

show it, I think, in the traditional kinds of ways—knowing, joinder 

and affiliation with the group. 

Mr. NADLER. Thank you. 

31 

And finally, either one of you, could you highlight, please, any 

other changes to the Senate amendments that you think we should 

be considering? 

Mr. KRIS. I can run down a quick list if you want of several, or— 

Jeh, I am sorry about that. 

Mr. JOHNSON. Please. 

Mr. KRIS. We have talked about the voluntariness standard. We 

have a position about the offensive material support for terrorism 

as a law of war violation. It is in our written testimony. 

Have some slight differences, I think, with respect to appellate 

review. We are in favor of fact and law review and the role of civilians, but I think—and this is really for Jeh to elaborate on more, 

but have some concerns about the Court of Appeals of the Armed 

Forces doing that kind of review. 

We favor sunset provisions—— 

Mr. NADLER. You would favor it going straight to a circuit court? 

Mr. KRIS. No. Again, Jeh should probably talk about it, but we 

would go to the service court. 

Mr. JOHNSON. It would be a—we actually favor the current structure that exists in the current military commissions law—in other 

words, trial court, court of military commissions review, D.C. circuit, Supreme Court, but with an expanded scope of review to encompass both facts and law. 

Mr. KRIS. It is a fairly modest—as I say, we support a sunset. 

I don’t think that is in the bill. 

This is related to the material support provision, but if it is out, 

then certainly I think we would prefer a declaration about the offenses there being law of war offenses, to deal with any ex post 

facto concerns. 

And then we have a slight difference on hearsay. And then, as 

I said, we are still sort of finalizing—— 

Mr. NADLER. And you can submit all that. That is in writing. 

Mr. KRIS. Yes. I don’t want to filibuster you. I am sorry to—— 

Mr. NADLER. No, that is all right. Well, my question inadvertently almost asked for a filibuster, but I don’t want one. Thank 

you. 

My time has expired. 

The gentleman from Iowa? 

Mr. KING. Thank you, Mr. Chairman. 

I would ask Mr. Johnson if you could restate again or read to the 

Committee the exceptions that may be considered on evidence 

gathering, as part of it that I heard was it would be evaluated as 

to what kind of duress the accused might be under. That was an 

interesting—is that in your written testimony and I missed it? 

Mr. JOHNSON. Well, first of all, I am happy to submit it for the 

record. 

Mr. KING. I would ask that you do that and unanimous consent 

that—well, it already is in the record because you read it, but—— 

Mr. JOHNSON. Yes. Would you like me to re-read it? 

Mr. KING. I would appreciate that. 

Mr. JOHNSON. Yes. 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 

32 

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. 

Mr. KING. Okay. Thank you. And that is just an interesting 

string there, and so it raises a number of questions in my mind, 

and one of them would be if the accused statement changes from 

the time that they are first interviewed—I will use that term—to 

the time they go to trial, doesn’t this language open it up so the 

judge can consider that and consider the first statement that this 

accused made—it might be under duress of some type? 

Mr. JOHNSON. Well, that is an interesting question. I know from 

my time as a prosecutor—and Mr. Kris can help me out here—that 

it is—and I am not sure how this would shake out in the military 

commissions context. 

I know that from my time as a prosecutor, if a statement is suppressed because it was not voluntary, or it was not taken in accordance with law, and there is a subsequent statement made by the 

defendant that is inconsistent with the suppressed statement, the 

government might have the opportunity to then offer into evidence 

the suppressed statement as a prior inconsistent statement. 

Maybe David can—— 

Mr. KING. Or the judge might throw it out on—might be able to 

take it into consideration and throw the original statement out and 

declare it to be likely suppressed because of the inconsistency between the original statement by the accused and the statement at 

the time of the trial. 

Mr. Kris? 

Mr. KRIS. There are different rules of admissibility when a prior 

statement is used for impeachment as an inconsistent statement, 

as opposed to affirmative evidence. 

But the language that Jeh read I think is an effort to sort of codify in statute the Supreme Court’s holding in Colorado v. Connelly, where you have a first statement that, let’s assume, is taken in a 

way that is—makes the statement inadmissible and then a second 

statement taken under different circumstances which, standing 

alone, would be fine but you still have to litigate the question of 

whether the first has tainted the second. 

And there is law on how that taint is dissipated, making the second statement admissible—— 

Mr. KING. It raises a question of law, which would be the discretion of the judge, as I understand this, in the final analysis. 

And if I listen to the string of this, the age of the defendant, the 

circumstances, the battlefield circumstances, the education, the 

training—can you describe for this Committee a scenario by which, 

let’s see, one might be picked up on the battlefield, and those circumstances would be tight enough that the case was not in jeopardy and left to the discretion of a Federal judge? 

Mr. KRIS. Well, I mean, it is not unbounded discretion, of course, 

in the military judge here. But I think the concept—— 

Mr. KING. But this language prescribes discretion, as I understand it. 

Mr. KRIS. I beg your pardon? 

33 

Mr. KING. This language prescribes discretion, as I understand 

it. 

Mr. KRIS. I think it guides the discretion of the judge, or the 

judge, in applying the legal standard of voluntariness, which has 

a very extensive pedigree in the case law, as you know, under the 

fifth amendment—I think maybe the concept that underlies the 

first part of that language is the idea of a coerced confession, of an 

involuntary confession, is predicated on some kind of government 

overreaching, improper conduct vis-a-vis the admissibility of the 

statement. 

Mr. KING. Okay. I think that is a good place to leave that—— 

Mr. KRIS. Okay. 

Mr. KING [continuing]. That particular question. I think that is 

an important point. 

And then I would like to go to the question of is the Administration’s position—does the Administration support reading Miranda 

rights to enemy combatants when they are picked up on the battlefield? 

Mr. JOHNSON. No. No, and I am happy to submit a letter for the 

record that I wrote to the Chairman of the House Armed Services 

Committee last week where, in response to inquiries from that 

Committee, I stated pretty unequivocally that it is not the mission 

of the military to read people they capture Miranda rights. 

Mr. KING. But we do know that is taking place. 

Mr. JOHNSON. I am happy to give you that for the record. 

Mr. KING. But you do know that is—it is taking place in the battlefield, within—very recently, within the last couple of months. 

And so under what circumstances is the military reading Miranda rights to those detainees that they are picking up in places 

like Afghanistan? 

And I would point you to the congressional record that Congressman Mike Rogers from Michigan has introduced within the last 

couple of months as an example. 

Mr. KRIS. Congressman, can I just make a couple of points in response to that? 

Mr. KING. Please. 

Mr. KRIS. The first is with respect to the admissibility standard, 

the Administration is supporting the rule under which Miranda 

would not be required for admissibility of statements. So there is 

no ambiguity on our position with respect to whether Miranda is 

required to admit these statements in a military commission. 

With respect to the actual practice, in addition to the letter that 

Mr. Johnson wrote himself, there is a letter dated July 21 from the 

attorney general to the House Armed Services Committee that 

says—and I will quote you the relevant sentence; I won’t read a 

whole long part of it, but, ‘‘the warnings’’—Miranda warnings—‘‘are 

given in locations removed from the battlefield and only after the 

military’s intelligence gathering and force protection needs have 

been met.’’ 

So I think there is some confusion about what the ground truth 

is here. But the attorney general, Director Mueller and Mr. Johnson have all written letters that I think, if you take a look at them, 

will clear it up. At least I hope they will. 

Mr. KING. All right. 

34 

Mr. JOHNSON. The other thing I would add, Congressman, is that 

the military commissions bill that the Senate passed expressly excludes Article 31 of the USMJ, which is the Miranda requirement, 

from any application to military commissions. 

Mr. KING. Thank you for that clarification. Thank you for your 

testimony. 

Thank you, Mr. Chairman. I yield back. 

Mr. NADLER. Thank you. 

Mr. Delahunt is recognized. 

Mr. DELAHUNT. You know, we continue to hear the term ‘‘picked 

up on the battlefield.’’ How many of the 800 detainees at Guantanamo were captured by American soldiers, if you know, on the battlefield, out of the—I think it is 740 or 790? 

Mr. JOHNSON. I don’t have the exact number for you, Congressman. We can give you that for the record. 

Mr. DELAHUNT. If I told you maybe 15 or 20, would that sound 

outrageously minimal? 

Mr. JOHNSON. Fifteen or 20? 

Mr. DELAHUNT. Or 20, captured by Americans. 

Mr. JOHNSON. I don’t have the exact numbers for you. 

Mr. DELAHUNT. American soldiers. 

Mr. JOHNSON. I don’t have the exact numbers for you. 

Mr. DELAHUNT. Okay. I think that is very important, because we 

are going to continue to hear as this debate goes on about being 

picked up on the battlefield. And I guess it is my information, and 

I think it has been sufficiently corroborated, that it is a minuscule 

number. 

In fact, if either one of you know, how many were picked up via 

the bounty program that was initiated by the Bush-Cheney administration? 

Mr. JOHNSON. I am not sure of the number. 

Mr. DELAHUNT. Couple of hundred, maybe? 

Mr. JOHNSON. I wouldn’t want to speculate, sir. 

Mr. DELAHUNT. Okay. 

Mr. Kris, do you know? 

Mr. KRIS. No, I don’t know the number. I mean, I will say I think 

your basic point is well taken, and I think it is similar to a point 

that Chairman Nadler made, which is that, if I understand you— 

maybe you are making only a narrower point, in which case—but 

this is a different kind of conflict in some ways, because the enemy 

is not wearing uniforms, and there will be, I think, perhaps more 

challenge in trying to determine exactly who is who. 

Mr. DELAHUNT. Right. 

Mr. KRIS. And I think it is incumbent on us to have procedures 

that are appropriate to the challenge of that determination. 

Mr. DELAHUNT. I concur with that. And again, let me be very 

clear, too. I applaud what you are trying to accomplish. I might 

have some disagreements in terms of degree, but I know what you 

are trying to do. 

You inherited a mess. And it is difficult picking up after a mess 

is left on your lap. But we owe it to the American people, to our 

justice system, to attempt to do that. 

Speaking of messes, where do we stand with the CSRTs? 

35 

Mr. JOHNSON. They were suspended in January as part of the review process. 

Mr. DELAHUNT. Well, again, what I found fascinating with the 

CSRTs—and for those who don’t like the use of acronyms, that is 

Combat Status Review Tribunals—which I think goes to the Chairman’s question about, you know, how do we initially filter them or 

determine that they are combatants. 

And it is my understanding that the mechanism that we used 

was Combatant Status Review Tribunals—— 

Mr. JOHNSON. Well, for the—— 

Mr. DELAHUNT [continuing]. Along with ABRs or ARBs. 

Mr. JOHNSON. ARBs, Administrative—— 

Mr. DELAHUNT. ARBs. 

Mr. JOHNSON [continuing]. Review Boards, yes. 

Mr. DELAHUNT. Right. And for the record, I wanted to note that 

in hearings before the Committee which I Chaired there were a 

number of military prosecutors that testified that described that 

entire process as it was—as it existed as a sham, a joke and a 

fraud being perpetrated. 

Now, these men were, in my judgment, courageous. I am sure 

that there was a lot of dissatisfaction with those opinions being expressed. But they were members of the American military, and 

they were attorneys that participated in the process. 

They weren’t sitting here in comfy, cozy Room 2141 making pronouncements and preachments and reaching conclusions that varied significantly from what the reality was. And the reality was 

that that was a system that did not reflect well on the American 

justice system. 

Have you been able to design or develop, as we look forward, a 

new screening mechanism—a grand jury, if you will, to use a legal 

term? 

Mr. JOHNSON. We are—— 

Mr. DELAHUNT. Are you still in the process? 

Mr. JOHNSON. Well, let me make a couple of points. First, when 

the process—the CSRT process for the Guantanamo detainees was 

suspended in January, what we did as part of the executive order 

mandate was to begin ourselves in the Administration a detaineeby-detainee review of every case—— 

Mr. DELAHUNT. Good. 

Mr. JOHNSON [continuing]. Which we are more than halfway 

through right now, from—we are looking at the complete picture 

with regard to every single detainee, including any who went 

through the CSRT process and are still detained. 

We are developing a periodic review process and a process for initial screening. There is an initial screening process that occurs irrespective of CSRTs, that occurs overseas in Afghanistan when people are captured there. There is a board that looks at them within 

a matter of days or hours, and that process is going to continue. 

We call it a 190-8 process. And that is something that is standard military. But we are devising—— 

Mr. DELAHUNT. At least it has a number now, Mr. Chairman. 

Mr. JOHNSON. There is a number on it, yes, sir. But we are devising a periodic review process. 

36 

Mr. DELAHUNT. And before the Chairman hits the gavel, if I 

could ask for another 30 seconds—— 

Mr. NADLER. Without objection, the gentleman is granted 30 seconds. 

Mr. KRIS. Just one other point, I think, to make is that one of 

the five rule changes that the Pentagon—the government adopted 

on its own was to change the reliance on the CSRTs when determining the jurisdiction of the military commission, and that is a— 

another change that I think—— 

Mr. DELAHUNT. That is well done. And the Chair and I have had 

a ongoing, continuing interest in a case involving a Canadian citizen who happened to be Syrian by birth by the name of Maher 

Arar. 

And when I hear issues regarding words such as ‘‘diminishing 

our national security,’’ let me put forth that I have had multiple 

conversations with Canadian officials who have expressed reluctance now to cooperate with the U.S. in terms of intel because of 

the injustice that was done to that individual. 

We intend to have a hearing once more on Maher Arar. I am 

going to request you, Mr. Johnson, and you, too, Mr. Kris, go back, 

look at the records, and let’s get those who made the decisions and 

signed off before this Committee, because I believe ardently that it 

is the responsibility of these Committees to do the oversight that 

is necessary to repair the damage that was done in the preceding 

Administration to America’s image. 

With that, I yield back. 

Mr. NADLER. I thank the gentleman. 

Let me just amplify, we—as the gentleman said, we have held 

joint hearings on that case. That is the case where intelligence 

from Canada was used by the United States ultimately to highly 

improper purposes. Canadian investigations revealed that. 

Our government, to this day, has refused—well, I don’t know 

that—we can ask the new Administration—but refused to acknowledge any error, when error was manifest and injustice was manifest. 

And the Administration should take a careful look at the Maher 

Arar—— 

Mr. DELAHUNT. Mr. Nadler, you know, I think it is important to 

note that the Canadians instituted a independent commission that 

spent 2 years that resulted in the total exoneration of Mr. Arar 

and, in fact, compensated him in the—— 

Mr. NADLER [continuing]. The Canadian Parliament voted a 10 

million, I think it was, dollar indemnity—for their—part in the injustice done to him. 

And I have communicated to the—the two of us have previously 

communicated, asking for a review of this and for information, so 

I hope you take that back and have it done. 

I want to thank you, the two witnesses on this panel. Thank you 

very much for your indulgence and for your testimony. 

I would ask the second panel to take its place. 

And while they are taking their place, I will introduce the second 

panel. Colonel Peter Masciola—is that Maskiola or Masciola? 

Colonel MASCIOLA. Masciola. 

37 

Mr. NADLER. Masciola. Colonel Peter Masciola is serving an active-duty tour as the chief defense counsel, Office of Military Commissions, where he is responsible for overseeing the defense of all 

detainees at Guantanamo accused of war crimes involving alleged 

terrorism against the U.S. under the Military Commissions Act of 

2006. 

He oversees a joint total force staff of 95 military and civilian 

lawyers, paralegals, investigators, intelligence analysts and administrative officers providing full-spectrum trial defense services to 

Gitmo detainees charged under the MCA. 

During his 25 years of distinguished military service, Colonel 

Masciola has served as the ANGJA assistant to the commander, 

first Air Force commander in chief, C.C.—I assume it means that— 

Air Force North, Tyndall Air Force Base, Florida; principal legal 

advisor to the chief of the Directorate of Total Force Integration 

H.Q. USAF/A8F; H.Q. at SJA; H.Q. Massachusetts Air National 

Guard; SJA 104th Fighting Wing, Barnes Air National Guard 

Base, Massachusetts; supported deployment operations in Iraq and 

Afghanistan; and deployed with his A-10 Fighter Wing during the 

Bosnia conflict. 

Commissioned in January 1984, Colonel Masciola served 10 

years in active duty, holding progressively senior positions, including branch chief, Air Force medical tort claims and litigation; medical law consultant; circuit trial counsel; area defense counsel; and 

assistant SAJ—SJA. 

In civilian life, Colonel Masciola is in the private practice of law. 

He received his juris doctorate from the New England School of 

Law in 1983. 

David J.R. Frakt was the lead defense counsel in the Office of 

the Chief Defense Counsel, Office of Military Commissions in 

Washington, DC and Guantanamo Bay, Cuba. He was the sole defense counsel in U.S. v. Ali Hamza al-Bahlul, one of only two detainees to be tried by military commission. 

He was also the lead defense counsel in U.S. v. Mohammed 

Jawad, one of two child soldiers facing trial by military commission. He continues to represent Mr. Jawad. 

He is an associate professor of law and director, Criminal Law 

Practice Center, Western State University College of Law. He is a 

graduate of the Air Command and Staff College and the Squadron 

Officer’s School. He holds a J.D. from Harvard Law School and a 

B.A. in history from the University of California, Irvine. 

Steven Engel is a partner in the Washington, D.C. office of 

Dechert LLP. Prior to joining Dechert, Mr. Engel served as a deputy assistant attorney general, the Office of Legal Counsel of the 

Department of Justice. 

While at the Office of Legal Counsel, Mr. Engel provided legal 

advice to the executive branch on matters relating to the detention 

and prosecution of the Guantanamo Bay detainees, and he worked 

with Congress in establishing the statutory military commission 

system following the decision of Hamdan v. Rumsfeld. 

Mr. Engel is a graduate of Yale Law School. He obtained a master’s in philosophy from Cambridge University and an A.B. from 

Harvard College. He served as a law clerk to Justice Anthony KenVerDate Aug 31 2005 10:47 Oct 15, 2009 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 H:\WORK\CONST\073009\51347.000 HJUD1 PsN: 51347
38 

nedy of the Supreme Court and to now-Chief Judge Alex Kozinski 

of the U.S. Circuit Court of Appeals for the Ninth Circuit. 

Eugene Fidell is senior research scholar in law and the Florence 

Rogatz Lecturer in Law at Yale Law School. He is also a counsel 

at the law firm Feldesman Tucker Leifer Fidell LLP. He earned his 

J.D. from Harvard Law School and, perhaps most importantly, is 

a graduate of Queens College. 

Mr. Fidell served as a judge advocate in the Coast Guard from 

1969 to 1972 and in private practice has represented members of 

each branch of the armed services. He has also represented print 

and electronic media in military justice matters. 

He has written extensively on military law and has taught the 

subject at Yale and Harvard Law Schools and the Washington College of Law, American University, where he is an adjunct professor 

of law. 

I must say that I assume that reference to Queens College was 

put in because one of our counsels is from Queens. 

I am pleased to welcome all of you. Your written statements in 

their entirety will be made part of the record. I would ask each of 

you to summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow and then red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. 

[Witnesses sworn.] 

If you would please stand and raise your right hand to take the 

oath. 

Do you swear or affirm under penalty of perjury the testimony 

you are about to give is true and correct, to the best of your knowledge, information and belief? Thank you. 

Let the record reflect that the witnesses answered in the affirmative. 

You may be seated. I will ask each of you to testify in less than 

5 minutes. We expect, I hope, to be able to get through at least the 

testimony before the next series of votes. 

Colonel Masciola? 

TESTIMONY OF COLONEL PETER R. MASCIOLA, USAFG, CHIEF 

DEFENSE COUNSEL, OFFICE OF MILITARY COMMISSIONS— 

DEFENSE 

Colonel MASCIOLA. Chairman Nadler, distinguished Members of 

the Committee, I want to thank you for this opportunity to come 

here and testify in front of you about what I believe is as important 

as some of the rule changes that you have discussed in order to 

make any commission system fair and just, not only to the system 

but to the accused that—they purport to trial. 

In order to do that, I first want to state for the record that while 

I oversee all of the defense services at Guantanamo Bay, Cuba, I 

do not represent any specific detainee, unlike Major Frakt, who is 

one of the counsel who works in my office. 

Because I don’t represent any specific detainee, I am going to 

limit my testimony to adequate resources here today and not make 

any opinions about whether or not military commissions should go 

39 

forward or any particular forum that any detainee should be tried 

upon. 

Having said that, I want to follow up on a previous question 

asked to Mr. Johnson about adequate resources for the defense, 

and that is the question, Chairman Nadler, that you had stated in 

regards to equal access to both witnesses and evidence. 

Sir, that is already the codified standard under the Uniform 

Code of Military Justice. And what I am simply asking for—and 

along a lot of the points that I made in writing—is equal access to 

witnesses and justice in the concept of equality of—I am sorry—to 

witnesses and evidence, and the concept of equality of arms, something that is woefully missing and inadequate in the resourcing 

under the present Military Commissions Act. 

And I point to the disparity between not only the UCMJ but the 

Federal system, where adequate resourcing is mandated by statute 

under the Criminal Justice Act. 

I point to several pieces of—of evidence, if you will, or documents, exhibits, that I have included in my written testimony to 

highlight the inadequacies of resourcing because of this unequal access to witnesses and evidence. 

First, one of the exhibits are the convening authority’s rulings on 

56 requests by counsel who work in my office for expert witnesses. 

Of those 56 requests, 47 were denied right off the bat. And most 

of them—10, in fact, in the death penalty cases—five death penalty 

cases—involved mitigation experts. 

One case, the Ghailani case, which was recently moved to Federal district court, which I submitted Exhibit B, shows that as soon 

as Mr. Ghailani was indicted and arraigned in Federal district 

court, the judge, ex parte and before even requests were made, subsequent requests were made by the defense counsel, granted three 

experts—not only a mitigation expert, but an investigator, and an 

intelligence officer, right away. That is the kind of requests that 

were being denied routinely by the convening authority. 

I would like to submit, and I have submitted in writing, that the 

whole model of the convening authority doesn’t work in the military commission system. It is based on commander justice, commander justice who has an interest in the whole part, including 

being fair to the accused and good order and discipline in their 

units. 

There is no such analogy here. Alleged al-Qaida, alleged Taliban, 

do not belong to the convening authority’s unit. In fact, the good 

order and discipline of JTF Guantanamo, the detention task force, 

does not come under the command of the convening authority. 

There is no reason that the defense resources should also come 

under the convening authority because the convening authority, 

unlike the commander under the military justice system, does not 

have the same interest that justice be done for that accused member of their unit. And the whole unit is looking at whether justice 

is done. 

I submit that I have in my written material made specific recommendations as to the language that would be amended for both 

statutory and regulatory changes that would change the convening 

authority and have a more fairer system to the defense that would 

adequately resource the defense. 

40 

I would also like to point out the change in the death penalty 

cases that Mr. Johnson was saying. Yes, the memo that I submitted here and the prior memos I submitted to him do address 

those resources. 

The death penalty counsel—he mentioned training. Training is 

not enough in order to comply with the ABA standards and the 

standards—federal—for learned counsel. Unfortunately, the military doesn’t have a death penalty bar because we don’t have that 

many death penalty cases, so we don’t have experienced military 

counsel in my office who are death-penalty qualified. 

We propose under the new system that that be contracted out 

until the military counsel get their—I am sorry, sir. 

We propose that a system be set up where death-penalty-qualified counsel in death penalty cases can be contracted, similarly as 

they are done in the Federal district courts and as was done initially in—when the Ghailani case was transferred there. 

[The prepared statement of Colonel Masciola follows:] 

41 

PREPARED STATEMENT OF PETER R. MASCIOLA


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EXHIBIT D 

Mr. NADLER. Thank you, Colonel. 

Major Frakt? 


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TESTIMONY OF MAJOR DAVID J. R. FRAKT, USAFR, LEAD DEFENSE COUNSEL, OFFICE OF MILITARY COMMISSIONS—DEFENSE 

Major FRAKT. Thank you, Chairman Nadler, Mr. King, Mr. 

Delahunt. Thank you for the opportunity to testify here today. 

And I particularly appreciate the comments of Chairman Nadler 

regarding my client, Mohammed Jawad, and the injustice that has 

been done to him. 

And I did want to inform the Committee that earlier today in the 

Federal district court Judge Huvelle, with the acquiescence of the 

Department of Justice, granted the writ of habeas corpus and ordered Mr. Jawad to be released after notifying Congress in accordance with a provision of the Supplemental Authorization Act from 

earlier this summer. 

So after nearly 7 years, my client, an innocent man, a teenager, 

an adolescent boy who was brought to Guantanamo on the basis of 

tortured statements, will soon be free. 

How did we get to this point? How is it possible that such a thing 

could happen in the United States, that justice could be delayed 

and denied for so long? 

And his case is a useful example of why we need to carefully consider whether we should continue with military commissions and, 

if so, why they need to be drastically reformed, far beyond what 

has been approved in the Senate National Defense Authorization 

Act. 

We have to go back to the original purposes of the military commissions under the Bush administration. The purposes there were 

not to provide fair trials, not to provide American justice. 

Actually, they represented an abandonment of the rule of law 

that was necessitated by the abandonment of the Geneva Conventions, the approval of coercive and abusive interrogation techniques, the abandonment of the standard of humane treatment, the 

refusal to recognize people as POWs or to afford tribunals to those 

where there was a dispute. 

The decision to create a legal black hole at Guantanamo, where 

no one was entitled to challenge the basis for their detention, no 

one was entitled to counsel, no one was entitled to access to the 

courts—that was the context and the milieu in which original military commissions were created. 

And of course, ultimately they were struck down by the Supreme 

Court. But then the Military Commissions Act of 2006 was rushed 

through Congress with minimal thought, minimal consideration, to 

what really needed to be done and whether there really was a need 

for these. 

The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree 

with that. They are a legitimate forum for law of war offenses. But 

what gets left out of the debate is that there are virtually no law 

of war offenses to be tried. 

If you look at what people have actually been charged with, they 

are charged with material support to terrorism, terrorism, conspiracy and spying, all non-law-of-war offenses, all offenses which 

are not—do not appear in the War Crimes Act, do not appear in 

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the Rome Statute of the ICC, have not traditionally been law of 

war offenses. 

The things that do look like law of war offenses, such as killing 

civilians or murdering civilians, did not occur during the armed 

conflict. I have been in the United States Air Force since 1995. I 

was on active duty until 2005. We were not in a state of armed conflict prior to 9/11. 

And so we have a false premise that we are trying terrorism 

crimes—attack on the USS Cole, attack on U.S. embassies in Africa, and 9/11 itself—which were simply crimes—mass murder, hijacking. We don’t need military commissions for those offenses. 

So go ahead and reform the military commissions, and create 

ones that are limited to law of war offenses and provide a fair trial, 

but there is not going to be anybody to try. 

Thank you. 

[The prepared statement of Major Frakt follows:] 

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PREPARED STATEMENT OF DAVID J. R. FRAKT


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Mr. NADLER. Thank you. Can I just clarify one question before 

we go on to the next statement? Why did you say there would be 

nobody to try in a properly constituted military commissions for 

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Major FRAKT. Because, Mr. Chairman, none of the people that 

have been charged have been charged with actual law of war offenses. 

Now, I want to say there is one exception to that. There is a 

crime called murder in violation of the law of war, which sounds 

like a war crime. Certainly, if a murder was in violation of the law 

of war, that would be a war crime. 

However, the prior Administration took the position that murder 

in violation of the law of war was simply murder by an 

unprivileged belligerent or murder by an enemy combatant. 

In other words, the mere status of being an unlawful combatant—the jurisdictional prerequisite was—converted any act of 

fighting, any act of attempt to kill U.S. soldiers, into a war crime, 

and there have been—that has been challenged by the defense 

counsel in the military commissions. 

We have three different judges in three different cases decide 

that the government’s interpretation of that law was wrong and 

that what Congress really intended was that in violation of the law 

of war means that there was something in the manner or method 

or circumstances that violated the law of war beyond simply being 

an unlawful combatant. 

So we don’t have examples of during the actual armed conflict of 

people committing traditional law of war offenses. 

Mr. NADLER. Mr. Engel? 

TESTIMONY OF STEVEN A. ENGEL, DECHERT LLP 

Mr. ENGEL. Thank you, Chairman Nadler and Members of the 

Subcommittee. I appreciate the opportunity to appear here today to 

discuss the current proposals for the reform of the military commission system. 

During the prior Administration, I served for almost 3 years in 

the Department of Justice’s Office of Legal Counsel, and in that capacity I worked with Congress in developing the military commissions—the military commission system that was established under 

the Military Commissions Act. 

As President Obama recently recognized, the United States has 

long employed military commissions for prosecuting captured enemies for violations of the laws of war. 

Indeed, the list of Presidents who have employed commissions 

reads like a ‘‘Who’s Who’’ of our greatest wartime leaders—George 

Washington, Abraham Lincoln, Franklin Delano Roosevelt—in 

other words, far from an invention of the last Administration, the 

United States has long recognized that military commissions represent the traditional means by which this country has tried captured enemies for war crimes. 

Because of this history and because of their particular use in the 

present conflict, it should not be surprising that President Obama 

has chosen to retain the military commission system for the trials 

of the Guantanamo detainees. 

Our Article III courts have an important role to play in our 

counterterrorism efforts. Article III courts have been particularly 

useful in this conflict when it comes to individuals apprehended in 

our borders by traditional law enforcement methods. 

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When it comes, however, to enemy combatants captured by our 

military, the Obama administration, like its predecessor, has concluded that military commissions may be necessary and appropriate to permit the consideration of evidence and intelligence information that likely could not be used under the strict procedural 

rules of Article III courts. 

It is equally unsurprising that the Obama administration would 

seek to work with Congress to improve both the workings of the 

commissions and the public perception of their ability to fairly dispense justice in this armed conflict. 

Though I differ with some of the details of the proposals under 

consideration, I believe that there is much to recommend. The 

amendments in the Senate’s defense authorization bill in particular 

reflect, in many respects, our experience in actually witnessings 

military commission prosecutions over the past 3 years. 

The bill also reflects a number of critical legal developments, including the Supreme Court’s decision in the Boumediene case, 

which held that Guantanamo detainees have the right—the constitutional right to habeas corpus, and suggested in all likelihood 

that they would be entitled to other constitutional rights as well. 

Although much less publicized, the military judges who preside 

over the commission system itself have made a number of important rulings in interpreting the Military Commissions Act, and the 

Senate bill appropriately addresses these decisions. 

I would like to just comment briefly on two of the proposals that 

the Obama administration has made. I agree with the Administration that special attention needs to be given to the rule governing 

the admissibility of detainee statements, which, frankly, has become a lightning rod for critics who charge that it would permit 

convictions based upon so-called coerced evidence. 

Although the existing rule is actually quite similar to those employed by U.N.-authorized international war crimes tribunals, and 

military judges have considerable discretion under the statute 

which they have carefully exercised to ensure the fairness of the 

trials, I agree that amending the rule could have a positive impact 

on the commissions and particularly on the positive—on the perceptions of those commissions. 

I disagree with the Obama administration’s proposal to remove 

the material support offense from prosecutors’ arsenal. During the 

Civil War, the United States prosecuted by military commission 

those who provided horses and other support to Confederate guerillas. 

We are similarly entitled under the law of war to prosecute those 

who join or support unlawful forces such a al-Qaida, and our prosecutors have so far made good use of that authority. 

Although we can and should discuss how military commissions 

may be improved, I do not want to lose sight of the bigger picture 

here. Apart from any particular details, the endorsement of the 

military commission system by the Obama administration and by 

this Congress will establish the commissions on a sound, bipartisan 

basis. 

Despite our historical tradition, it is no secret that the use of 

commissions against al-Qaida has been a matter of some controversy and considerable litigation over the past several years. 

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Those challenges have impeded the commissions’ ability to mete 

out justice to the terrorists who have committed war crimes against 

Americans, including those who perpetrated the attacks of September 11. 

I am hopeful that the proposed reforms will remove some of the 

objections now extant to the commissions, place them on a sounder 

legal footing and allow the trials once again to move forward. 

I appreciate the opportunity to participate in the Subcommittee’s 

discussion today, and I look forward to your questions. 

[The prepared statement of Mr. Engel follows:] 

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Mr. NADLER. I thank you. 

Mr. Fidell? 

TESTIMONY OF EUGENE R. FIDELL, SENIOR RESEARCH 

SCHOLAR IN LAW AND FLORENCE ROGATZ LECTURER IN 

LAW, YALE LAW SCHOOL 

Mr. FIDELL. Thank you. 


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Mr. Chairman, I am not going to read my statement at all. I 

would just like to make a few comments. To begin with, I appreciate your mention of my alma mater. As Daniel Webster said of 

Dartmouth College, ‘‘it is a small school, yet there are those who 

love it.’’ 

Second, I would like to comment that I am here in my capacity 

as president of the National Institute of Military Justice. We have 

been deeply involved with the military commissions issues from the 

beginning. 

We have had observers from our staff and our advisory board 

and board of directors go to Guantanamo. We have generated a little pamphlet, which I can leave with you if you like. 

We don’t have a party line. Our observers see things differently 

from person to person. I think they are quite interesting reading. 

I commend this to you. 

And let me mention that I am extremely proud that we have generated a volume of law reports, the Military Commission Reporter, 

gathering in one place all of the rulings of the military judges and 

the military commissions as well as the rulings—the unclassified 

ones—of the Court of Military Commission Review. 

Frankly, we had thought this would be a historical document, 

and it turns out, of course, that events seem to be heading in a direction where we are going to be living, for better or worse, with 

military commissions for some time. 

And before I leave that subject, I am happy to say that there are 

two members of the NIMJ staff present observing democracy in action here today. I am extremely pleased to recognize them. They 

spent the morning in Judge Ellen Huvelle’s courtroom watching 

the proceedings that have been mentioned already. So what an exciting day for these young people. 

There are three points I would like to make. First, I would like 

to talk about transparency. Second, I would like to talk about appellate review. And third, I would like to talk about voluntariness. 

On the transparency point, you already mentioned, anticipating 

a point that I wanted to stress, the real importance of everyone 

seeing the Office of Legal Counsel opinion that has been mentioned. 

You can’t have a discussion—and I think no Member of the 

House should—can be expected to act responsibly, to vote responsibly and intelligently on pending legislation without access to that 

opinion. 

We have lived through several years now of secret law from the 

Office of Legal Counsel. It has been a national disgrace. 

And right-minded people such as Dawn Johnson, whose nomination, surprisingly, is still pending in the other body, has worked to 

reform the Office of Legal Counsel, reform that process and keep 

it on a very solid, professional footing. 

We really all ought to see the Office of Legal Counsel opinion. 

That is this Administration’s view of what due process entails. 

Second, with respect to, again, transparency, I would hope that 

some effort could be made to require the Department of Defense to 

use notice and comment rule-making when it changes the manual 

for courts martial—manual for military commissions. 

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This is an easy one. It will help foster public confidence in the 

administration of justice. Yes, changes to the manual do have to be 

reported to Congress in advance, but why not use the normal process that we are familiar with through the Administrative Procedure Act, which admittedly doesn’t apply here? 

But still, Congress might give serious attention to either amending the MCA or putting in some real, real strong language in a conference report saying, ‘‘Look, let the people participate in the rulemaking process.’’ That is where a lot of the implementing rules get 

made. So I would like to put that on the table. 

The final point with respect to transparency—and it goes back to 

our ‘‘1 M.C.’’ law reporter—I hope that the Defense Department 

can be encouraged to get a more user-friendly Web site. We are 

happy to do this. We think it is important. We are proud of our 

work in putting out the Commission Reporter. 

It was a lot harder than it should have been. I think we, members of the public, people around the world, Members of Congress, 

your staffs should be able, with much less difficulty, to find out 

what the rulings have been rather than have it haphazard. 

With respect to appellate review, it is a good thing that the Senate bill includes appellate review by the Court of Appeals for the 

Armed Forces. It is incomprehensible to me that the MCA, which 

as previously was indicated, was passed kind of under the gun in 

2006, provided for a review by the D.C. circuit. 

I have infinite respect for the D.C. circuit. I have practiced there 

for many years. I have also practiced for many years before the 

now Court of Appeals for the Armed Forces. You are dealing with 

military law of a kind, and that is supposed to be our expert body. 

Make sure, I hope, that the House conferees are solidly behind 

the Court of Appeals for the Armed Forces. They can do the job. 

They have the time. And it will provide a sort of coherence to these 

bodies of law. 

My final point concerns voluntariness. Voluntariness should be 

the test for admissibility of statements. I will say, as I think Mr. 

Johnson pointed out, Article 31 of the UCMJ does not apply. It was 

specifically carved out in the MCA. It should be carved back in. 

All you have to do is look at Article 31(d) of the UCMJ. That is 

the provision that says you cannot use evidence obtained by unlawful threats or even unlawful inducements. I cannot come up with 

a plausible reason for having a different test in this context than 

in the court-martial context. 

That is all I have, Mr. Chairman. 

[The prepared statement of Mr. Fidell follows:] 

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ATTACHMENTS 


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Mr. NADLER. I thank you. 

We are expecting votes soon, and so I am going to be fairly strict 

in adhering to the 5-minute time line. I hope we will be able to get 


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this all in before the votes, so that we don’t have to ask you to stay 

until the votes are over. 

I recognize myself first. 

Mr. Fidell, in your written statement, you note that any military 

commission system must be appropriately limited in terms of who 

can be charged and for what crime. 

Do the amendments made by the Senate bill to the MCA set the 

correct standards of jurisdiction? What, if any, further changes are 

needed? 

Mr. FIDELL. The changes go in the right direction, but as you will 

see from my statement—and here, I have to respectfully disagree 

with Mr. Engel, or at least a part of Mr. Engel’s presentation. I 

think it is quite dangerous to accede to the notion that military 

commissions are kind of normal and accepted. 

I personally disagree that they date back to President Washington’s—not his Administration, but to his term as commander in 

chief of the Continental Army. 

They should be limited in duration and subject matter and in 

personal jurisdiction, and any—— 

Mr. NADLER. And do you—— 

Mr. FIDELL [continuing]. Anything that can be done in that direction should be done—— 

Mr. NADLER. Can you give us in writing your recommendations 

as to what those limitations should be? 

Mr. FIDELL. Yes. Some of those—— 

Mr. NADLER. Thank you. 

Mr. FIDELL [continuing]. Appear in an appendix to my testimony. 

Mr. NADLER. Thank you. 

Major Frakt, you note the lack of a minimum age limitation for 

military commissions. Your client has been referred to by some as 

a child soldier. You testify he may have been as young as 12 when 

captured in 2002. 

How might an age limit have changed his confinement and possible prosecution? 

Major FRAKT. I am sorry, Mr. Chairman. I didn’t hear the last 

sentence. 

Mr. NADLER. How might an age limit have changed his confinement and possible prosecution, if we had had an age limit? 

Major FRAKT. Well, Mr. Chairman, it certainly would have precluded a prosecution. Had we complied with the optional protocol 

on the involvement of children in armed conflict, which the United 

States signed and ratified in 2002, he would have been treated very 

differently. 

He would not have been confined with adult prisoners. He would 

have been provided opportunities for rehabilitation and reintegration. And the U.S. in a report to that committee did acknowledge 

that both he and Omar Khadr were juveniles. 

Mr. NADLER. Thank you. 

Now, Major Frakt, the Administration has indicated that it will 

seek to detain individuals deemed dangerous, even if acquitted, 

based on its authority to hold individuals for the duration of hostilities, presumably as enemy combatants or whatever it is calling 

them these days. 

144 

What, in your view, is the extent of this authority? Who would 

it possibly cover? 

Major FRAKT. Well, I am skeptical about this alleged category of 

people that are too dangerous to release but yet can’t be prosecuted. No one has ever identified any such individual. 

If we are confident that a person is—poses a danger to the 

United States, that should be based on past conduct, which should 

be prosecuteable, at a minimum, for material support of terrorism, 

which is a very flexible crime and it covers—— 

Mr. NADLER. So you are skeptical—— 

Major FRAKT [continuing]. A lot of conduct. 

Mr. NADLER [continuing]. That there could be anybody in this 

third category. 

Major FRAKT. Yes. But if there were, and it is troubling, the idea 

of someone being acquitted and then continuing to be held. But I 

do understand the distinction between the authority to hold someone under the law of war and the—versus for criminal prosecution. 

What I would say—and this is what we do in the Air Force—if 

someone is prosecuted and acquitted, then whatever they were 

charged with cannot be the basis for subsequent administrative action—for example, if we wanted to administratively discharge 

someone. 

So if there were some other basis, other than what they were 

prosecuted for and acquitted, to hold them, then—then potentially 

there could be a lawful—— 

Mr. NADLER. Let me ask you one further question, and please answer briefly. In your view, what evidence would be required to authorize indefinite detention, and what process would be needed to 

determine that? 

Major FRAKT. Indefinite detention should not be authorized 

under any circumstances. 

Mr. NADLER. Well, indefinite detention during hostilities is what 

we are talking about, I presume. 

Major FRAKT. Well, in that case, the nature of the hostilities 

need to be more clearly defined. 

Mr. NADLER. In law or in the case? 

Major FRAKT. In law or in—— 

Mr. NADLER. Or in the specific case. 

Major FRAKT. Well, I think the Administration needs to define 

how—what the conflict is and how we will know when it ends. 

Mr. NADLER. And until it defines that, you can’t hold someone as 

an enemy combatant? 

Major FRAKT. Well, I think there is—clearly, we are in an armed 

conflict in Afghanistan, as well as Iraq, but let’s say that that conflict comes to a close, as I hope it will. Are we still going to be in 

a war against al-Qaida and Taliban elsewhere? Probably. 

So I think we have to define what the conflict is. 

Mr. NADLER. That is defining the conflict in Afghanistan as one 

conflict, the conflict with—in Somalia as another, as opposed to a 

worldwide conflict. 

Major FRAKT. Yes. 

Mr. NADLER. Mr. Fidell, could you comment on that very briefly, 

please? 

145 

Mr. FIDELL. The idea, unfortunately, took root under the administration of President George W. Bush that we were in basically 

perpetual war. 

We cannot have such a doctrine and yet also have indefinite detention, because that means detention to the end of time. It is for 

reasons like that that we have to rely on the Federal courts to be 

available in a meaningful way, as they have proven to be, ultimately, in the habeas cases. 

Mr. NADLER. Thank you. Thank you. 

Colonel Masciola, what are the key reforms—no, skip that one. 

Okay. I have exhausted my time. I yield. 

I recognize the gentleman from Massachusetts. 

Mr. DELAHUNT. First of all, thank you all for excellent testimony, 

and you are providing a great service to the country and to this 

particular discussion, which is very important. 

I can assure you, Colonel, that I agree totally with you in terms 

of adequate resources, and when I hear the convening authority— 

you know, 46 out of 57, I am reminded of the fact that we had a 

convening authority that allegedly made statements about, you 

know, ‘‘This is about convictions, not about acquittals. We are not 

going to have any acquittals.’’ It was reported in the newspaper. 

That doesn’t mean it is true, but if that is the case, that I find 

repugnant and offensive, and again adds to why we need to do— 

to close Guantanamo and to move forward in a way that I think 

you are all suggesting. 

Mr. Engel, I heard you say captured on the battlefield. You 

know, when we talk about the military commission, and you use 

terms like captured by our forces—that is why I posed the question 

to the earlier panel about, you know, how many were actually captured by our forces. 

Would you make a distinction between individuals that are captured by American forces or are bought by Americans to—on the 

basis of some poor Afghani or Pakistani saying that they are terrorists? 

Mr. ENGEL. Well, I wouldn’t distinguish the legal matter specifically with respect to who made the capture. I fully agree with you 

that it is very important that we make sure that the folks that we 

are holding are, in fact—— 

Mr. DELAHUNT. Is that truly—— 

Mr. ENGEL [continuing]. Enemies of our country. That is—— 

Mr. DELAHUNT. Is that truly—— 

Mr. ENGEL. We agree about that. 

Mr. DELAHUNT. Is that truly a capture? 

Mr. ENGEL. Sorry? I mean, we—— 

Mr. DELAHUNT. Is that a capture when we buy them? 

Mr. ENGEL. I think when we invaded Afghanistan at the 

time—— 

Mr. DELAHUNT. Right. 

Mr. ENGEL [continuing]. We fought with a number of local forces 

there and—— 

Mr. DELAHUNT. I understand. 

Mr. ENGEL [continuing]. Benefitted from that. When we were 

successful in routing Afghan and al-Qaida forces at Tora Bora, they 

146 

went east and they went into Pakistan, and we had a number of 

highly significant captures and the like—— 

Mr. DELAHUNT. That is fine. 

Mr. ENGEL [continuing]. Which was done by—you know, by our 

allies and co-belligerents, and folks—you know, and people from 

the government of Pakistan as well. 

It is important to make sure that we have the right people, clearly. 

Mr. DELAHUNT. Right. 

Mr. ENGEL. And it—— 

Mr. DELAHUNT. We got a lot of the wrong people, unfortunately. 

Mr. ENGEL [continuing]. It becomes more—it becomes more difficult when there are circumstances—— 

Mr. DELAHUNT. Right. 

Mr. ENGEL [continuing]. In which other governments or—— 

Mr. DELAHUNT. But would—— 

Mr. ENGEL [continuing]. Foreign governments are providing that. 

Mr. DELAHUNT [continuing]. Would you feel comfortable relying 

on information coming from the Pakistani—you know, the ISI, who 

were, you know, given by tribal leaders, you know, four Uighur detainees—— 

Mr. ENGEL. I—— 

Mr. DELAHUNT [continuing]. Who had absolutely, you know, 

nothing at their disposal to determine whether they were terrorists 

or not? 

Mr. ENGEL. As a general matter, not speaking about the specific 

cases—— 

Mr. DELAHUNT. Okay. 

Mr. ENGEL [continuing]. And intelligence information, we have 

relied and continue to rely upon the Pakistani intelligence services 

for very important information. They are an important ally in—you 

know, in this armed conflict, both since—— 

Mr. DELAHUNT. Both for—— 

Mr. ENGEL [continuing]. Early 2001 and—— 

Mr. DELAHUNT [continuing]. Us and for our enemy, I would suggest. Right. I mean, we—— 

Mr. ENGEL. Your other jurisdiction. 

Mr. DELAHUNT. Right. 

Mr. ENGEL. I think think the Uighurs is a difficult case. And it 

was recognized, you know—— 

Mr. DELAHUNT. Early on. 

Mr. ENGEL [continuing]. By the—early on. 

Mr. DELAHUNT. Early on by the Bush administration. 

Mr. ENGEL. I mean, the Uighurs were not cleared for release on 

January 21, 2009—— 

Mr. DELAHUNT. Well, because we didn’t have CSRTs then. 

Mr. ENGEL. Sorry? 

Mr. DELAHUNT. We didn’t have CSRTs. 

Mr. ENGEL. Yes—I—— 

Mr. DELAHUNT. On January 21? 

Mr. ENGEL. Oh. Oh, right—CSRTs. Well, I mean, that system 

was stopped, frankly, after the Boumediene decision made clear 

that we would move all of the litigation to Federal court—— 

Mr. DELAHUNT. Do you have any comments about that system? 

147 

Mr. ENGEL. Well, that system was devised and developed based 

upon the model of Article 5 of the Geneva Conventions. I know that 

there have been individuals within the Department of Defense who 

have expressed critical opinions as to the administration of the 

CSRT system. 

Mr. DELAHUNT. It was in the implementation. 

Mr. ENGEL. I also know that there have been a—there have been 

many folks within the Department of Defense who have come and 

testified and defended the system. 

Certainly, in its rules it was modeled after Article 5 of the Geneva Conventions, based really upon the Supreme Court’s guidance. 

Mr. DELAHUNT. Mr. Fidell, give me your—I will throw this out, 

because I do have a particular interest. 

Mr. FIDELL. Look, this train ran off the tracks when the government decided not to use the procedures set out in Army Regulation 

190-8. That regulation had been on the books for years. We used 

the Article 5 screening tribunals that are supposed to separate the 

wheat from the chaff, who is a POW and who isn’t, to very good 

effect in the first Gulf War. 

And it turned out that I think two-thirds or maybe three-quarters of the people who had been apprehended, have come into our 

custody—— 

Mr. DELAHUNT. Arrived on our doorstep. 

Mr. FIDELL [continuing]. Arrived on our doorstep—— 

Mr. DELAHUNT. For $5,000. 

Mr. FIDELL [continuing]. Were sent home. They served the purpose. And that is what should have been done. For that, the Bush 

administration has to accept responsibility. It was—— 

Mr. DELAHUNT. One more final question. 

Mr. FIDELL. It was a blunder. 

Mr. DELAHUNT. Major, I will tell you what I find particularly aggravating—and I don’t usually attend classified briefings because I 

find they have very little value. 

And I can always read them the next day in the newspaper, because they are leaked by the executive. We all know that. And of 

course, they are concerned about us leaking, which I really find 

kind of humorous. 

In any event, I have heard of plea agreements where even release—paroles, I think, is the right term—where as part of the parole agreement the detainee is—has to sign something that he will 

not in any way discuss anything about his treatment, et cetera, et 

cetera. Can you comment on that? 

Major FRAKT. Yes, Mr. Delahunt. There has only been one plea 

agreement that has come to fruition at Guantanamo, and that involved Mr. David Hicks, an Australian. And he did sign a number 

of conditions as part of that agreement. 

And you know, people will sign anything to get out of Guantanamo. And whether that was under duress and whether it was 

legal I don’t have any special insight into. 

But I would note that what he was convicted of, which was material support for terrorism, the Obama administration has now acknowledged is not a war crime. So his conviction is very seriously 

in question. 

Mr. FIDELL. There ought to be a law forbidding the—— 

148 

Mr. NADLER. The gentleman’s time has expired. 

Mr. KING. Mr. Chairman, I will yield my time. 

Mr. NADLER. The gentleman’s—— 

Mr. FIDELL. There ought to be a law forbidding the extraction of 

any kind of signed statement as a condition of release. 

Only today or yesterday the newspapers reported that the Iranian authorities, when they released young people who had been 

taken into custody during the recent upheaval in Iran, were being 

required to sign documents saying they had been treated nicely by 

the Iranian prison authorities. 

So anything like that should be really taken with a very large 

grain of salt. 

Mr. NADLER. I thank the gentleman. 

I thank the gentleman for yielding. 

All time is expired. We have 2 minutes left on the vote. Without 

objection, all Members—I thank the witnesses. 

Without objection, all Members have 5 legislative days to submit 

to the Chair additional written questions for the witnesses which 

we will forward and ask the witnesses to respond as promptly as 

they can so that their answers may be made part of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

Again, we thank the witnesses for their patience and for their 

testimony. 

With that, this hearing is adjourned. 

[Whereupon, at 5:43 p.m., the Subcommittee was adjourned.] 

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