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54–023 PDF 2009

S. HRG. 111–190 

LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES FOR 

VIOLATIONS OF THE LAW OF WAR 

HEARING 

BEFORE THE

COMMITTEE ON ARMED SERVICES 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 7, 2009 

Printed for the use of the Committee on Armed Services 

( 

COMMITTEE ON ARMED SERVICES 

CARL LEVIN, Michigan, Chairman 

EDWARD M. KENNEDY, Massachusetts 

ROBERT C. BYRD, West Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

JACK REED, Rhode Island 

DANIEL K. AKAKA, Hawaii 

BILL NELSON, Florida 

E. BENJAMIN NELSON, Nebraska 

EVAN BAYH, Indiana 

JIM WEBB, Virginia 

CLAIRE McCASKILL, Missouri 

MARK UDALL, Colorado 

KAY R. HAGAN, North Carolina 

MARK BEGICH, Alaska 

ROLAND W. BURRIS, Illinois 

JOHN MCCAIN, Arizona 

JAMES M. INHOFE, Oklahoma 

JEFF SESSIONS, Alabama 

SAXBY CHAMBLISS, Georgia 

LINDSEY GRAHAM, South Carolina 

JOHN THUNE, South Dakota 

MEL MARTINEZ, Florida 

ROGER F. WICKER, Mississippi 

RICHARD BURR, North Carolina 

DAVID VITTER, Louisiana 

SUSAN M. COLLINS, Maine 

RICHARD D. DEBOBES, Staff Director 

JOSEPH W. BOWAB, Republican Staff Director 

(II) 

C O N T E N T S 

CHRONOLOGICAL LIST OF WITNESSES 

LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES

FOR VIOLATIONS OF THE LAW OF WAR

JULY 7, 2009

Page 

Johnson, Hon. Jeh C., General Counsel, Department Of Defense ...................... 7 

Kris, Hon. David S., Assistant Attorney General, National Security Division, 

Department Of Justice ........................................................................................ 9 

MacDonald, VADM Bruce E., USN, Judge Advocate General, United States 

Navy ...................................................................................................................... 12 

Hutson, RADM John D. USN (Ret.), Former Judge Advocate General of 

the Navy ................................................................................................................ 43 

Altenburg, MG John D. Jr., USA (Ret.), Former Appointing Authority for 

Military Commissions .......................................................................................... 46 

Marcus, Daniel, Fellow in Law and Government, Washington College of Law, 

American University ............................................................................................ 50 

Annex A .................................................................................................................... 138

Annex B .................................................................................................................... 140

Annex C .................................................................................................................... 143

Annex D .................................................................................................................... 149

(III) 

(1) 

LEGAL ISSUES REGARDING MILITARY COMMISSIONS AND THE TRIAL OF DETAINEES 

FOR VIOLATIONS OF THE LAW OF WAR 

TUESDAY, JULY 7, 2009 

U.S. SENATE, 

COMMITTEE ON ARMED SERVICES, 

Washington, DC. 

The committee met, pursuant to notice, at 9:34 a.m. in room SD– 

106, Dirksen Senate Office Building, Senator Carl Levin (chairman) presiding. 

Committee members present: Senators Levin, Lieberman, Reed, 

Bill Nelson, Ben Nelson, Webb, Udall, Hagan, Begich, McCain, 

Inhofe, Sessions, Chambliss, Graham, Thune, Martinez, and Collins. 

Committee staff members present: Richard D. DeBobes, staff director; and Leah C. Brewer, nominations and hearings clerk. 

Majority staff members present: Gerald J. Leeling, counsel; Peter 

K. Levine, general counsel; and William G.P. Monahan, counsel. 

Minority staff members present: Joseph W. Bowab, Republican 

staff director; Richard H. Fontaine, Jr., deputy minority staff director; Michael V. Kostiw, professional staff member; and David M. 

Morriss, minority counsel. 

Staff assistants present: Mary C. Holloway, Paul J. Hubbard, 

and Christine G. Lang. 

Committee members’ assistants present: James Tuite, assistant 

to Senator Byrd; Christopher Griffin, assistant to Senator 

Lieberman; Carolyn A. Chuhta, assistant to Senator Reed; Neal 

Higgins, assistant to Senator Bill Nelson; Ann Premer, assistant to 

Senator Ben Nelson; Patrick Hayes, assistant to Senator Bayh; 

Gordon I. Peterson, assistant to Senator Webb; Roger Pena, assistant to Senator Hagan; Lindsay Young, assistant to Senator Begich; 

Gerald Thomas, assistant to Senator Burris; Anthony J. Lazarski, 

assistant to Senator Inhofe; Lenwood Landrum and Sandra Luff, 

assistants to Senator Sessions; Clyde A. Taylor IV, assistant to 

Senator Chambliss; Adam G. Brake, assistant to Senator Graham; 

Jason Van Beek, assistant to Senator Thune; Dan Fisk and Brian 

W. Walsh, assistants to Senator Martinez; and Chip Kennett, assistant to Senator Collins. 

OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN 

Chairman LEVIN. Good morning, everybody. The committee 

meets today to consider the important issue of military commissions and the trial of detainees for violations of the law of war. 

2 

On June 25, the committee unanimously voted to include a provision on military commissions in the National Defense Authorization Act (NDAA) for Fiscal Year 2010. This bill has now been sent 

to the full Senate for its consideration. I thank Ranking Member 

Senator McCain as well as Senator Graham and all the members 

of the committee for their work on this important matter. 

In its 2006 decision in the Hamdan case, the Supreme Court held 

that Common Article III of the Geneva Conventions prohibits the 

trial of detainees for violations of the law of war, unless the trial 

is conducted ‘‘by a regularly constituted court, affording all of the 

judicial guarantees which are recognized as indispensable by civilized peoples.’’ The court concluded that: ‘‘The regular military 

courts in our system are the courts-martial established by congressional statutes,’’ but that a military commission can be regularly 

constituted by the standards of our military justice system ‘‘if some 

practical need explains deviations from court-martial practice.’’ 

Similarly, the court found that the provision for ‘‘judicial guarantees which are recognized as indispensable by civilized peoples’’ requires at a minimum that any deviation from the procedures governing courts-martial be justified by evident practical need. 

The Supreme Court found that the military commissions established pursuant to President Bush’s military order of November 13, 

2001, fail to meet that test. The military commissions subsequently 

authorized by Congress in the Military Commissions Act (MCA) of 

2006 also clearly fail to meet that test as well because they deviate 

from court-martial practice by permitting the routine use of coerced 

testimony, by authorizing reliance on hearsay evidence even when 

direct evidence is reasonably available, and by establishing a presumption that the procedures and precedents applicable in trials by 

court-martial will not apply to military commissions. 

The double failure that I’ve just described to establish a system 

that provides basic guarantees of fairness identified by our Supreme Court has placed a cloud over military commissions and has 

led some to conclude that the use of military commissions can 

never be fair, credible, or consistent with our basic principles of 

justice. While the previous Congress’s effort failed to meet the 

standards established by the Supreme Court in the Hamdan case, 

I believe that military commissions can be designed to meet those 

standards and that if they do they can play a legitimate role in 

prosecuting violations of the law of war. 

President Obama has said that he believes this as well. In his 

May 21, 2009, speech at the National Archives, the President said: 

‘‘Military commissions have a history in the United States dating 

back to George Washington and the Revolutionary War. They are 

an appropriate venue for trying detainees for violations of the laws 

of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security 

of participants; and for the presentation of evidence gathered from 

the battlefield that cannot always be effectively presented in Federal courts.’’ 

Continuing the quote of President Obama: ‘‘Instead of using the 

flawed commissions of the last 7 years, my administration is bringing our commissions in line with the rule of law. We will no longer 

permit the use of evidence as evidence statements that have been 

3 

obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is 

unreliable on the opponent of the hearsay, and we will give detainees greater latitude in selecting their own counsel and more protections if they refuse to testify. 

‘‘These reforms,’’ he said, ‘‘among others, will make our military 

commissions a more credible and effective means of administering 

justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on 

legislation to ensure that these commissions are fair, legitimate, 

and effective.’’ 

The procedures for military commissions have varied over the 

years, as the procedures followed in our military justice system 

have varied. The Supreme Court noted in the Hamdan case that, 

while procedures governing trials by military commission are typically those governing court-martial, the ‘‘uniformity principle’’ is 

not an inflexible one. It does not preclude all departures from the 

procedures dictated for use by court-martial, but any departure, the 

Supreme Court said, ‘‘must be tailored to the exigency that necessitates it.’’ 

That is the standard that we’ve tried to apply in adopting the 

procedures for military commissions that we have included in the 

bill that we referred to the full Senate. This new language addresses a long series of problems with the military commission procedures currently in law. For example, relative to the admissibility 

of coerced testimony, the provision in our bill would eliminate the 

double standard in existing law under which coerced statements 

are admissible if they were obtained prior to December 30, 2005. 

Relative to the use of hearsay evidence, the provision in our bill 

would eliminate the extraordinary language in the existing law 

which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative. 

Relative to the issue of access to classified evidence and exculpatory evidence, the provision in our bill would eliminate the 

unique procedures and requirements which have hampered the 

ability of defense teams to obtain information and have led to so 

much litigation. We would substitute the more established procedures based on the Uniform Code of Military Justice (UCMJ), with 

modest changes to ensure that the government cannot be required 

to disclose classified information to unauthorized persons. 

Of great importance, the provision in our bill would reverse the 

existing presumption in the MCA of 2006 that rules and procedures 

applicable to trials by court-martial would not apply. Our new language says, by contrast, that ‘‘Except as otherwise provided, the 

procedures and rules of evidence applicable in trials by general 

court-martial of the United States shall apply in trials by military 

commission under this chapter.’’ 

The exceptions to this rule are, as suggested by the Supreme 

Court, carefully tailored to the unique circumstances of the conduct 

of military and intelligence operations during hostilities. 

Three years ago when the committee considered similar legislation on military commissions, I urged that we apply two tests. 

First, will we be able to live with the procedures that we establish 

if the tables are turned and our own troops are subjected to similar 

4 

procedures? Second, is the bill consistent with our American system of justice and will it stand up to scrutiny on judicial review? 

I believe those remain the right questions for us to consider and 

that the language that we have included in the NDAA for Fiscal 

Year 2010 meets both tests. 

Over the last 3 years, we have seen the legal advisor to the Convening Authority for Military Commissions forced to step aside 

after a military judge found that he had compromised his objectivity by aligning himself with the prosecution. We have had prosecutors resign after making allegations of improper command influence and serious deficiencies in the military commission process. 

We have had the chief defense counsel raise serious concerns about 

the adequacy of resources made available to defendants in military 

commission cases, writing that, ‘‘Regardless of its other procedures, 

no trial system will be fair unless the serious deficiencies in the 

current system’s approach to defense resources are rectified.’’ 

So even if we’re able to enact new legislation that successfully 

addresses the shortcomings in existing law, we still have a long 

way to go to restore public confidence in military commissions and 

the justice that they produce. However, we will not be able to restore confidence in military commissions at all unless we first substitute new procedures and language to address the problems with 

the existing statute. 

Again, I want to thank Senator McCain, Senator Graham, and 

the other members of the committee for all of the work that they’ve 

put into this bill and to this issue. The Senate will be considering 

the entire bill, including these provisions, hopefully starting next 

Monday or Tuesday. 

Senator McCain. 

Senator MCCAIN. Mr. Chairman, Senator Inhofe has asked to 

make a brief comment if that’s agreeable to you. 

Chairman LEVIN. Sure, of course. 

Senator INHOFE. I thank the ranking member for this courtesy. 

I’m the ranking member on the Environment and Public Works 

Committee, and we have a hearing that’s going on at the same 

time. I do have a list of questions I’ll be submitting for the record, 

including such things as the impact of placing detainees in the U.S. 

prison system pre-trial and post-trial, the security risks of escape, 

where these detainees will be tried and at what risk, the advantages of using the complex we’ve all seen down there, the Expeditionary Legal Complex that is designed for tribunals, the rules of 

evidence that are between a tribunal and a Federal court system, 

and lastly some questions about the advisability of reading Miranda rights to captured terrorists. 

I thank you, and I will be submitting these and I appreciate the 

opportunity to make that statement. 

Chairman LEVIN. Thank you, Senator Inhofe. 

Senator McCain. 

STATEMENT OF SENATOR JOHN MCCAIN 

Senator MCCAIN. Thank you, Mr. Chairman. I want to join you 

in welcoming our witnesses on both panels this morning. I appreciate your scheduling the hearing and I appreciate the expert adVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
5 

vice and experience in these matters that our witnesses bring to 

our discussions on military commissions and detainee policy. 

This committee has led the way in dealing with detainee issues 

and developing legislation on detainee matters, sometimes in cooperation with the White House and sometimes over its strong objections. The NDAA for Fiscal Year 2010, which was reported out 

of this committee unanimously on June 25, 2009, again takes a 

leading role by including changes to the MCA of 2006. 

I’m pleased to have worked with you and Senator Graham and 

others on this legislation. While we haven’t resolved all the thorny 

issues that military commissions and other aspects of detainee policy present, I believe we’ve made substantial progress that will 

strengthen the military commissions system during appellate review, provide a careful balance between protection of national security and American values, and allow the trials to move forward 

with greater efficiency toward a just and fair result. 

The first panel is composed of experts in national security and 

legal matters from within the government, including senior officials 

of the Department of Defense (DOD), Department of Justice (DOJ), 

and our uniformed Judge Advocate General (JAG) Corps. The witnesses on our second panel have similar practical and academic experience, but are now outside the government. I’m particularly interested in hearing the views of witnesses on both panels on problems that have been encountered implementing the current military commissions system, including the speed of bringing cases to 

trial and what should be done to make the system work more 

smoothly, ways in which to deal with the important issue of protection of classified information, whether the current military commissions system adequately addresses alleged terrorist acts by al 

Qaeda and its operatives that occurred before the attacks on September 11, 2001, such as the bombing of the USS Cole and our 

East African embassies, whether the rules on use of hearsay testimony at trial strike the right balance between the conditions of an 

ongoing war or whether improvements should be made, whether 

the definition of ‘‘unlawful enemy combatant’’ or ‘‘unprivileged belligerent’’ should be modified, whether changes should be made in 

the appellate review of military commissions. 

While our hearing today is focused on military commissions and 

the trial of detainees for violations of the law of war, there are a 

number of enormously difficult issues related to detainee policy 

that we must also come to grips with in a comprehensive fashion 

before we can close the detention facility at Guantanamo Bay, as 

President Obama has pledged to do. 

Mr. Chairman, the issues presented by the detainees at Guantanamo and overseas in Afghanistan are among the most difficult 

policy decisions this administration faces. I look forward to hearing 

the views of our witnesses and working with you on these matters 

as the DOD bill moves forward toward floor consideration and conference with the House of Representatives. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator McCain follows:] 

6 

PREPARED STATEMENT BY SENATOR JOHN MCCAIN

Mr. Chairman, I want to join you in welcoming our witnesses on both panels this 

morning. I appreciate you scheduling this hearing, and I appreciate the expert advice and experience in these matters that our witnesses bring to our discussions on 

military commissions and detainee policy. 

This committee has led the way in dealing with detainee issues and developing 

legislation on detainee matters, sometimes in cooperation with the White House and 

sometimes over its strong objections. The National Defense Authorization Act for 

Fiscal Year 2010, which was reported out of this committee unanimously on June 

25, again takes a leading role by making recommendations for changes to the Military Commissions Act of 2006. I have worked with you in this effort, as has Senator 

Lindsey Graham. While we have not resolved all the thorny issues that military 

commissions and other aspects of detainee policy present, I believe we have made 

substantial progress that will strengthen the military commissions system during 

appellate review, provide a careful balance between protection of national security 

and American values, and allow the trials to move forward with greater efficiency 

toward a just and fair result. 

Our first panel is composed of experts in national security and legal matters from 

within the government, including senior officials of the Defense Department, Justice 

Department, and our uniformed Judge Advocate General’s Corps. The witnesses on 

our second panel have similar practical and academic experience who are now outside the government. I am particularly interested in hearing the views of witnesses 

on both panels on: 

• Problems that have been encountered implementing the current military 

commissions system, including the speed of bringing cases to trial, and 

what should be done to make the system work more smoothly; 

• Issues dealing with the protection of classified information and the process of providing declassified substitutes or summaries to the detainee and 

his legal team and whether these procedures can be made more efficient 

while still protecting national security; 

• Whether the current military commissions system adequately addresses 

alleged terrorist acts by al Qaeda and its operatives that occurred before 

the attacks on September 11, 2001, such as the bombing of the USS Cole 

and our East Africa embassies; 

• Whether the rules on use of hearsay testimony at trial strike the right 

balance given the conditions of an ongoing war or whether improvements 

should be made; 

• Whether the definition of ‘‘unlawful enemy combatant’’ or ‘‘unprivileged 

belligerent’’ should be modified; 

• Whether changes should be made in the appellate review of military commissions. 

While our hearing today is focused on military commissions and the trial of detainees for violations of the law of war, there are a number of enormously difficult 

issues related to detainee policy that we must also come to grips with in a comprehensive fashion before we can close the detention facility at Guantanamo Bay, 

as President Obama has pledged to do. I would also like the witnesses to provide 

their views on: 

• How would you propose sorting cases that should be tried in Article III 

Federal courts and those that should be tried before a military commission; 

• What happens to detainees who are found ‘‘not guilty’’ at trial; 

• Where should detainees who are convicted of war crimes be incarcerated; 

• What sort of system should apply to those detainees who we cannot try, 

but who are too dangerous to release; 

• What sort of review should apply to those detainees captured off the battlefield, but who are held in battlefield detention facilities such as those at 

Bagram Air Base in Afghanistan; 

• How can we best ensure that those detainees who are released to another 

country don’t return to the fight; 

• If all the detainees cannot be tried or repatriated to another country by 

January 2010, what should we do about closing Guantanamo? 

Mr. Chairman, the issues presented by the detainees at Guantanamo and overseas in Afghanistan are among the most difficult policy decisions this administration faces. I look forward to hearing the views of our witnesses and to working with 

you on these matters as the National Defense Authorization Act moves ahead toward floor consideration and conference with the House of Representatives. I am 

7 

convinced that we must solve these difficult issues now and I am committed to doing 

so. Thank you. 

Chairman LEVIN. Thank you so much, Senator McCain. 

We’ll first now hear from our inside panel, first the General 

Counsel for DOD, Jeh Johnson. 

STATEMENT OF HON. JEH C. JOHNSON, GENERAL COUNSEL, 

DEPARTMENT OF DEFENSE 

Mr. JOHNSON. Thank you very much, Mr. Chairman, Senator 

McCain, members of this committee. You have my prepared statement. I will dispense with the full reading of it and just make some 

abbreviated opening comments here. 

Chairman LEVIN. All the statements will be made part of the 

record in full. 

Mr. JOHNSON. Thank you. 

I want to thank this committee for taking the initiative on a bipartisan basis to seek reform of military commissions. In his 

speech, as the chairman remarked, at the National Archives on 

May 21, President Obama called for the reform of military commissions and pledged to work with Congress to amend the MCA of 

2006. Speaking on behalf of the administration, we welcome the opportunity to be here today and to work with you on this important 

initiative. 

Military commissions can and should contribute to our national 

security by becoming a viable forum for trying those who violate 

the laws of war. By working to improve military commissions, to 

make the process more fair and credible, we enhance our national 

security by providing the government with effective alternatives for 

bringing to justice those international terrorists who violate the 

laws of war. 

Those are the remarks I wanted to make initially. Senator, I look 

forward to your questions. 

[The prepared statement of Mr. Johnson follows:] 

PREPARED STATEMENT BY JEH CHARLES JOHNSON

Mr. Chairman and Senator McCain, thank you for the opportunity to testify here 

today. 

I also thank this committee for taking the initiative, on a bipartisan basis, to seek 

reform of military commissions. In his speech on May 21 at the National Archives, 

President Obama called for the reform of military commissions, and pledged to work 

with Congress to amend the Military Commissions Act. So, speaking on behalf of 

the administration, we welcome the opportunity to be here today, and to work with 

you on this important initiative. 

Military commissions can and should contribute to our national security by becoming a viable forum for trying those who violate the law of war. By working to 

improve military commissions to make the process more fair and credible, we enhance our national security by providing the government with effective alternatives 

for bringing to justice those international terrorists who violate the law of war. 

In May, the administration announced five changes to the rules for military commissions that we believe go a long way towards improving the process. (I note that 

those changes were developed initially within the Defense Department, in consultation with both military and civilian lawyers, and have the support of the Military 

Department Judge Advocates General, the Staff Judge Advocate to the Commandant of the Marine Corps, and the Legal Counsel to the Chairman of the Joint 

Chiefs of Staff). My Defense Department colleagues and I have had an opportunity 

to review the language this committee has included in the National Defense Authorization Act, and it is our basic view that the committee has identified virtually all 

of the same elements we believe are important to further improve the military commissions process. We are confident that through close cooperation between the adVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
8 

ministration and Congress, reformed military commissions can emerge from this effort as a fully legitimate forum, one that allows for the safety and security of participants, for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in Federal court, and for the just resolution of cases 

alleging violations of the law of war. 

There are several changes to the Military Commissions Act reflected in the proposed legislation which I would like to highlight here, and which the administration 

supports: 

First, consistent with the rules changes approved by the Secretary of Defense and 

submitted to Congress in May, the legislation codifies a ban on the use in court of 

statements that were obtained by interrogation methods that amount to cruel, inhuman, or degrading treatment. In my view, this change is a big one. The most prominent criticism we hear of the current Military Commissions Act is that it permits 

the use of such statements, if obtained before December 30, 2005. The statutory 

change which eliminates this possibility—by itself—will go a long way towards enhancing the legitimacy and credibility of commissions. 

Second, I note that the legislation amends current law to clarify the government’s 

obligations to disclose exculpatory evidence to the accused, including evidence that 

would tend to impeach the credibility of a government witness, or serve as mitigation evidence at time of sentencing. This clarification of the government’s obligations 

would be consistent with the obligations prosecutors have now in civilian courts. 

Third, the legislation would modify the rules on hearsay evidence, more closely 

resembling the rules used in civilian courts and in courts-martial. 

Fourth, the legislation codifies our rules change to provide the accused with more 

latitude in the selection of military defense counsel, again making commissions’ 

rules closer to those in courts-martial. 

Fifth, the legislation discontinues the use of the phrase ‘‘unlawful enemy combatant.’’ We in the administration, effective March 13, have also discontinued using the 

phrase in our court filings identifying who we believe we have the authority to detain at Guantanamo. 

The administration supports these changes to existing law, though you will note 

that we prefer somewhat different language in several instances. As I said before, 

we believe that reformed military commissions can and should contribute to national security by affording a venue for bringing to justice those who violate the law 

of war, and for doing so in a manner that reflects American values of justice and 

fairness. We believe these reforms serve that purpose. 

When considering this legislation, the administration asks that Congress also consider the following: 

First, in section 948r, concerning statements of the accused that can be admitted 

at trial, we ask that you consider the express incorporation of a ‘‘voluntariness’’ 

standard that, consistent with current law, takes account of the unique challenges 

and circumstances of the battlefield setting. We do not believe that soldiers on a 

battlefield should be required or even encouraged to provide Miranda-like warnings 

to those they capture—and we note that the current legislation expressly states that 

Article III1 of the Uniform Code of Military Justice is not applicable to military 

commissions. Article III1 requires Miranda-like warnings prior to official questioning of servicemembers regarding alleged crimes. 

The essential mission of our Nation’s military is to capture or kill the enemy, not 

to engage in evidence collection for eventual prosecution. However, in both American 

civilian courts and courts-martial, statements of an accused are normally admitted 

only in the event they are found to be ‘‘voluntary.’’ There is a concern that, as military commissions prosecutions progress, military commission judges and courts may 

apply this standard without taking adequate account of the critical circumstances. 

Thus, rather than jeopardize future prosecutions and convictions because a statement was admitted at trial that was not considered ‘‘voluntary,’’ the administration 

believes we should specifically codify a standard to assess voluntariness that, consistent with current law, accounts for the realities of military operations. This will 

decrease the likelihood that combat objectives may be confused with a law enforcement mission, while ensuring that valid convictions before military commissions will 

be sustained on appeal. 

Second, we note that the legislation incorporates certain of the classified evidence 

procedures currently applicable in courts-martial, where there is relatively little 

precedent and practice regarding classified information. We, in the administration, 

believe that further work could be done to codify the protections of classified evidence, in a manner consistent with the protections that now exist in Federal civilian 

courts. We believe that those protections would work better to protect classified information, while continuing to ensure fairness and providing a stable body of precedent and practice for doing so. 

9 

Third, concerning hearsay, while welcoming the committee’s further regulation of 

the use of such evidence, we in the administration recommend somewhat different 

language for achieving this result that we look forward to discussing in more detail. 

Fourth, we look forward to working with Congress to ensure that the offenses that 

may be prosecuted in a military commission are consistent with the law of war. We 

note that section 950p of the Military Commissions Act contains a statement recognizing that the offenses codified by that Act are ‘‘declarative of existing law,’’ and 

‘‘do not preclude trial for crimes that occurred before enactment’’ of the law. The 

committee replaced the language currently in section 950p with similar, but not 

identical, language. The administration supports this type of statement, though we 

prefer the existing language in section 950p. I note also that the committee bill retains the offense of providing material support for terrorism. After careful study, the 

administration has concluded that appellate courts may find that ‘‘material support 

for terrorism’’—an offense that is also found in Title 18—is not a traditional violation of the law of war. The President has made clear that military commissions are 

for law of war offenses. We thus believe it would be best for material support to 

be removed from the list of offenses triable by military commission, which would fit 

better with the statute’s existing declarative statement. 

We also believe that conspiracy, unlike material support, can in many cases be 

properly charged in military commissions as a traditional law of war offense, and 

we welcome the retention of that offense in the committee bill. As a former prosecutor, it is my belief that by definition, many material support cases are also conspiracy cases. 

With the removal of material support, we are supportive of recognizing the law 

of war origins of all codified offenses. 

Fifth, we agree with the committee that the scope of appellate review must be 

expanded to include review of factual as well as legal matters. However, we believe 

that an appellate court paralleling that of the service Courts of Criminal Appeals 

under Article 66 of the Uniform Court of Military Justice, with additional review 

by the U.S. Court of Appeals for the DC Circuit, would best achieve the legitimacy 

and credibility we all seek. 

In conclusion, I thank you again for taking the initiative in this important area 

of national security, and I look forward to your questions. 

Chairman LEVIN. Thank you very much, Mr. Johnson. 

Next is the Assistant Attorney General for National Security Division (NSD) at DOJ, David Kris. 

Mr. Kris. 

STATEMENT OF HON. DAVID S. KRIS, ASSISTANT ATTORNEY 

GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF 

JUSTICE 

Mr. KRIS. Thank you, Mr. Chairman, Senator McCain, and members of the committee. I come from DOJ and this is my first appearance before this committee. I thought I might begin just by 

briefly explaining how I think my work relates to that of the committee with respect to military commissions. 

NSD, which I lead, combines all of DOJ’s major national security 

personnel and functions. Our basic mission is to protect national 

security consistent with the rule of law and civil liberties. In keeping with that, we support all lawful methods for achieving that protection, including but not limited to prosecution in an Article III 

court or before a military commission. 

In the last administration, NSD assembled a team of experienced 

Federal prosecutors drawn from across the country to assist the 

DOD Office of Military Commissions (OMC) and litigate cases at 

Guantanamo Bay, Cuba (GTMO). I can assure you that assistance 

will continue. The man who led that team for NSD is now my deputy and a member of that team has since been recalled to active 

duty and is now the lead prosecutor at OMC. 

10 

As the President explained, when prosecution is feasible and otherwise appropriate we will prosecute terrorists in Federal court or 

in military commissions. In the 1990s, I prosecuted a group of violent extremists and, like their more modern counterparts, they engaged in extensive ‘‘law-fare,’’ which made the trials challenging. 

But the prosecution succeeded, not only because it incarcerated 

these defendants, some of them for a very long time indeed, but 

also because it deprived them of any shred of legitimacy. 

Military commissions can help do the same for those who violate 

the law of war—not only detain them for longer than might otherwise be possible under the law of war, but also brand them as illegitimate war criminals. To do this effectively, however, the commissions themselves must first be reformed, and the committee’s bill 

is a tremendous step in that direction. As you know from my written testimony and that of Mr. Johnson and Admiral MacDonald, 

the administration appreciates the bill very much and supports 

much of it. You have made an incredibly valuable contribution with 

the bill. 

I want to thank you again for inviting me here and I look forward to answering your questions. 

[The prepared statement of Mr. Kris follows:] 

PREPARED STATEMENT BY HON. DAVID KRIS

Chairman Levin, Ranking Member McCain, and members of the Armed Services 

Committee, thank you for the opportunity to discuss legislation that would reform 

the Military Commissions Act (MCA) of 2006. A task force established by the President is actively reviewing the detainees held at Guantanamo Bay to determine 

whether they can be prosecuted or safely transferred to foreign countries. As the 

President stated in his May 21 speech at the National Archives, where feasible we 

plan to prosecute in Federal court those detainees who have violated our criminal 

law. Prosecution is one way—but only one way—to protect the American people, and 

the Federal courts have proven on many occasions to be an effective mechanism for 

dealing with dangerous terrorists. 

The President has also made clear that he supports the use of military commissions to prosecute those who have violated the laws of war, provided that necessary 

reforms are made. Military commissions have a long history in our country dating 

back to the Revolutionary War. Properly constructed, they take into account the reality of battlefield situations and military exigencies, while affording the accused 

due process. The President has pledged to work with Congress to ensure that the 

commissions are fair, legitimate, and effective, and we are all here today to help 

fulfill that pledge. I thank this Committee for leading the effort to develop legislation on this important national security issue. 

On May 15, the administration announced five rule changes as a first step toward 

meaningful reform. These rule changes prohibited the admission of statements obtained through cruel, inhuman, and degrading treatment; provided detainees greater latitude in the choice of counsel; afforded basic protections for those defendants 

who refuse to testify; reformed the use of hearsay by putting the burden on the 

party trying to use the statement; and made clear that military judges may determine their own jurisdiction. Each of these changes enhances the fairness and legitimacy of the commission process without compromising our ability to bring terrorists to justice. 

These five rule changes were an important first step. This committee has now 

taken the next step by drafting legislation to enact more extensive changes to the 

MCA on a number of important issues. The administration believes the committee’s 

bill identifies many of the key elements that need to be changed in the existing law 

in order to make the commissions an effective and fair system of justice. We think 

the bill is a good framework to reform the commissions, and we are committed to 

working with you on it. With respect to some issues, we think the approach taken 

by the committee is exactly right. In other cases, we believe there is a great deal 

of common ground between the administration’s position and the provision adopted 

by the committee, but we would like to work with you because we have identified 

a somewhat different approach. Finally, there are a few additional issues in the 

11 

MCA that the committee’s bill has not modified that we think should be addressed. 

I will outline some of the most important issues briefly today. 

First, the committee’s bill would bar admission of statements obtained by cruel, 

inhuman, or degrading treatment. We support this critical change so that neither 

statements obtained by torture nor those obtained by other unlawful abuse may be 

used at trial. 

However, we believe that the bill should also adopt a voluntariness standard for 

the admission of statements of the accused—albeit a voluntariness standard that 

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

To be clear, we do not support requiring our soldiers to give Miranda warnings to 

enemy forces captured on the battlefield, and nothing in our proposal would require 

this result, nor would it preclude admission of voluntary but non-Mirandized statements in military commissions. Indeed, we note that the current legislation expressly makes Article III1 of the Uniform Code of Military Justice (UCMJ) inapplicable to military commissions, and we strongly support that. There may be some 

situations in which it is appropriate to administer Miranda warnings to terrorist 

suspects apprehended abroad, to enhance our ability to prosecute them, but those 

situations would not require that warnings be given by U.S. troops when capturing 

individuals on the battlefield. Voluntariness is a legal standard that is applied in 

both Federal courts and courts martial. It is the administration’s view that there 

is a serious risk that courts would hold that admission of involuntary statements 

of the accused in military commission proceedings is unconstitutional. Although this 

legal question is a difficult one, we have concluded that adopting an appropriate 

rule on this issue will help us ensure that military judges consider battlefield realities in applying the voluntariness standard, while minimizing the risk that hardwon convictions will be reversed on appeal because involuntary statements were admitted. 

Second, the committee has included a provision to codify the Government’s obligation to provide the defendant with exculpatory evidence. We support this provision 

as well; we think it strikes the right balance by ensuring that those responsible for 

the prosecution’s case are obliged to turn over exculpatory evidence to the accused, 

without unduly burdening every Government agency with unwieldy discovery obligations. 

Third, the committee bill restricts the use of hearsay, while preserving an important residual exception for certain circumstances where production of direct testimony from the witness is not available given the unique circumstances of military 

and intelligence operations, or where production of the witness would have an adverse impact on such operations. We support this approach, including both the general restriction on hearsay and a residual exception, but we would propose a somewhat different standard as to when the exception should apply, based on whether 

the hearsay evidence is more probative than other evidence that could be procured 

through reasonable efforts. 

Fourth, we agree with the committee that the rules governing use of classified evidence need to be changed, but we would do so in a fashion that is more similar to 

the system provided in the Classified Information Procedures Act (CIPA), as it has 

been interpreted by Federal courts. While CIPA may need to be revised and updated 

in important respects to address terrorism cases more effectively, we believe it has 

generally worked well in both protecting classified information and ensuring fairness of proceedings. Importing a modified CIPA framework into the statute will provide certainty and comprehensive guidance on how to balance the need to protect 

classified information with the defendant’s interests. It will also allow military 

judges to draw on the substantial body of CIPA case law and practice that has been 

developed over the years. 

We are concerned with a provision in the committee bill that allows the use of 

traditional CIPA practices—the use of deletions, substitutions, or admissions—only 

after an agency head or original classifying authority has certified that the evidence 

has been declassified to the maximum extent possible. This provision has no analogue in CIPA or the UCMJ, and it suggests a potentially burdensome process of 

declassification where the traditional alternatives would be more efficient and would 

adequately protect the rights of the accused. We also believe there are a number 

of elements of CIPA law and practice that would substantially improve the way classified information issues are dealt with by the commissions, including for example 

establishing clear guidance on the propriety of ex parte hearings on classified information issues and setting substantive standards for provision of classified evidence 

to the defense in discovery. We would be happy to work with you and your staff 

on these issues. 

Fifth, we share the objective of the committee to empower appellate courts to protect against errors at trial by expanding their scope of review, including review of 

12 

factual as well as legal matters. We also agree that civilian judges should be included in the appeals process. However, we think an appellate structure that is 

based on the service Courts of Criminal Appeals under Article 66 of the UCMJ, with 

additional review by the U.S. Court of Appeals for the District of Columbia Circuit 

under traditional standards of review, is the best way to achieve this result. 

There are two additional issues I would like to highlight today that are not addressed by the committee bill that we believe should be considered. The first is the 

offense of material support for terrorism or terrorist groups. While this is a very 

important offense in our counterterrorism prosecutions in Federal court under title 

18 of the U.S. Code, there are serious questions as to whether material support for 

terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law 

of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk 

that appellate courts will ultimately conclude that material support for terrorism is 

not a traditional law of war offense, thereby reversing hard-won convictions and 

leading to questions about the system’s legitimacy. However, we believe conspiracy 

can, in many cases, be properly charged consistent with the law of war in military 

commissions, and that cases that yield material support charges could often yield 

such conspiracy charges. Further, material support charges could be pursued in 

Federal court where feasible. 

Finally, we think the bill should include a sunset provision. In the past, military 

commissions have been associated with a particular conflict of relatively short duration. In the modern era, however, the conflict could continue for a much longer time. 

We think after several years of experience with the commissions, Congress may 

wish to reevaluate them to consider whether they are functioning properly or warrant additional modification. 

In closing, I want to emphasize again how much the administration appreciates 

the committee’s leadership, and the very thoughtful bill it has drafted. While there 

may be some areas of the bill on which we disagree with the approach taken or the 

specific language adopted, we think this bill represents a major step forward and 

we are optimistic that we can reach agreement on the important details. We would 

welcome the opportunity to conduct further discussions. 

Thank you again for the opportunity to testify today, and I will be happy to answer any questions you have. 

Chairman LEVIN. Thank you very much, Mr. Kris. 

Admiral MacDonald. 

STATEMENT OF VADM BRUCE E. MACDONALD, USN, JUDGE 

ADVOCATE GENERAL, UNITED STATES NAVY 

Admiral MACDONALD. Thank you, Mr. Chairman, Senator 

McCain, members of the committee. Thank you very much for providing me with the opportunity to present my personal views of 

section 1031 of the NDAA. 

In 2006 when this committee was working to establish a permanent framework for military commissions through the MCA, I had 

the opportunity to share my views with the Senate Judiciary Committee and the House Armed Services Committee (HASC). At that 

time I recommended that a comprehensive framework for military 

commissions should clearly establish the jurisdiction of the commissions, set baseline standards of structure, procedure, and evidence 

consistent with U.S. law and the law of war, and prescribe substantive offenses. I stated that the UCMJ should be used as a 

model for the commissions process. 

I am pleased to say that this committee’s legislative proposal addresses the concerns I had in 2006 following the enactment of the 

MCA. Overall, I believe that this legislation establishes a balanced 

framework to provide important rights and protections to an accused, while also providing the government with the means of prosecuting alleged alien unprivileged enemy belligerents. 

13 

In reviewing your legislation, I would identify two areas where 

additional clarity would be most helpful to our practitioners. First, 

the legislation relies upon the current courts-martial rules of evidence to address the handling of classified information. Unfortunately, the cognizant military rule, MRE–505, does not have a very 

robust history. Over time we have discovered that, while MRE–505 

has some benefits, the military rules on the use of classified information fall short of our overall goals. 

On the other hand, for over 20 years Article III courts have relied upon the Classified Information Procedures Act (CIPA). In 

light of the history and experience of CIPA, as well as the practical 

difficulties with the use of MRE–505 to date, I recommend using 

a modified CIPA process as a touchstone for military commissions 

going forward. 

Second, I agree with the provision calling for the military judge 

to evaluate the admissibility of allegedly coerced statements using 

a totality of the circumstances test to determine reliability. However, to assist our practitioners in the field, I recommend that you 

develop a list of considerations to be evaluated in making this determination. Those considerations should include: the degree to 

which the statement is corroborated; the indicia of reliability in the 

statement itself; and to what degree the will of the person making 

the statement was overborne. 

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

[The prepared statement of Admiral MacDonald follows:] 

PREPARED STATEMENT BY VADM BRUCE MACDONALD, USN 

Chairman Levin, Ranking Member McCain, and members of the Armed Services 

Committee, thank you very much for giving me the opportunity to testify today on 

the subject of military commissions. 

In 2006, when this committee was working to establish a permanent framework 

for military commissions through the Military Commissions Act, I had the opportunity to share my views with the Senate Judiciary Committee and House Armed 

Services Committee. At that time, I recommended that a comprehensive framework 

for military commissions should clearly establish the jurisdiction of military commissions, set baseline standards of structure, procedure, and evidence consistent with 

U.S. law and the law of war, and prescribe substantive offenses. I stated that the 

Uniform Code of Military Justice (UCMJ) should be used as a model for the commissions process. Although our experiences of the last few years have shaped my perspectives on some of the rules that should apply to military commissions, I am 

pleased to say that this committee’s legislative proposal addresses the concerns I 

had in 2006. Overall, I believe that this legislative proposal establishes a balanced 

framework to provide important rights and protections to an accused while also providing the government with the means of prosecuting alleged alien unprivileged 

enemy belligerents. 

This legislation provides each accused with critical legal protections. These include: 

• The right against self incrimination, the right to compulsory process and 

a reasonable opportunity to obtain witnesses and evidence, along with an 

expanded right to exculpatory, as well as mitigating and impeachment evidence. 

• The right to be present during all sessions of trial when evidence is to 

be offered and the right to confront witnesses. 

• The right to self representation and the right to be represented by detailed military counsel, an expanded right to counsel of the accused’s own 

choice if reasonably available, and the right to civilian counsel at the 

accused’s expense. 

14 

• The right to appellate review, to include a review of factual sufficiency 

identical to the type of review currently conducted for courts-martial under 

the UCMJ. 

Prosecution of alien unprivileged enemy belligerents has proven a challenge over 

the last few years. Your legislation establishes a more balanced framework to prosecute accused by modeling the procedures used in general courts-martial under the 

UCMJ while recognizing the exigencies that exist on the battlefield in time of war. 

Specific highlights of the legislation that I support include: 

• A requirement that the government prove its case beyond a reasonable 

doubt. 

• Protection against double jeopardy. 

• A requirement that the proponent of hearsay evidence establish its reliability to an extent required by rules long recognized in trials by general 

courts-martial. 

• Exclusion of statements obtained through the use of torture or cruel, inhuman or degrading treatment. For other statements, permits the military 

judge to determine admissibility in the interests of justice based upon the 

reliability of the statement under a totality of the circumstances analysis. 

• Establishes clearly defined criminal offenses. 

• Continues to recognize and rely upon an independent trial judiciary that 

has been the hallmark of military trials under the UCMJ. 

In short, this legislation strikes the right balance between affording an accused 

the judicial guarantees recognized as indispensable by civilized people and our national security concerns. 

In reviewing your legislation, I believe that there are two areas in which our practitioners would benefit from some additional clarity. 

• Section 949d provides for the use of rules of evidence in trials by general 

courts-martial in the handling of classified evidence. This is consistent with 

our overall desire to use those procedures found within the UCMJ and the 

Manual for Courts-Martial whenever possible. However, experience has 

shown that practitioners struggle with a very complex and unclear rule 

within the Military Rules of Evidence. The military rules do not have a robust source of informative or persuasive case law. Frankly, prosecutions 

using Military Rule of Evidence 505 are rare. In developing the rules for 

the handling of classified material during a military commission, it would 

be more prudent to rely upon the Classified Information Procedures Act 

(CIPA) used in Article III courts as a starting point. The use of CIPA as 

a touchstone for drafting provisions for use in the litigation of classified evidence in military commissions, complete with the definitional guidance that 

has developed over more than 20 years of jurisprudence in Federal district 

courts, would provide practitioners with additional clarity in the area of 

classified evidence. 

• Section 948r provides a test for determining the admissibility of allegedly 

coerced statements. I recommend you include a list of considerations a military judge should use in evaluating the reliability of those statements. 

Those considerations should include the degree to which the statement is 

corroborated, the indicia of reliability within the statement itself, and 

whether and to what degree the will of the person making the statement 

was overborne. 

Once again, thank you very much for this opportunity to share my personal views 

on your legislation. I look forward to answering your questions and working with 

the committee on this important endeavor. 

Chairman LEVIN. Thank you very much, Admiral MacDonald. 

As the Judge Advocate General of the U.S. Navy, your testimony 

is obviously very, very important to us. You emphasize that you’re 

speaking in a personal capacity here today and we understand 

that. We would ask, however, if there are some differences between 

the uniformed Navy and your own personal views. We will ask the 

Secretary if there are any such differences. We assume Mr. Johnson is speaking for the entire DOD, but since you put it that way 

we will make that inquiry of the Secretary of the Navy. 

Let’s try a 6-minute round for questioning here. We have not 

only two panels, but we also have a room which is reserved for 

15 

some other purpose previously at 12:30. I hope we’ll have enough 

time. We’ll try a 6-minute first round. 

Let me ask you first, Mr. Johnson. I quoted from the Hamdan 

case in my opening remarks, saying that the court in Hamdan said 

that ‘‘the regular military courts in our system are the courts-martial established by congressional statutes,’’ but they also said that 

a military commission can be regularly constituted if there’s a practical need that explains deviations from court-martial practice. We 

attempted in our language to do exactly that. 

My question first of you is, in your view does our bill conform to 

the Hamdan standards? 

Mr. JOHNSON. Senator, as you noted, Hamdan was at a time that 

the MCA of 2006 did not exist, as I recall. But the holding of 

Hamdan was that military commissions—and I’m not going to get 

this exactly right—but that military commissions should depart 

from UCMJ courts only in situations of evident practical need. 

The proposed legislation, in our view definitely brings us closer 

to the UCMJ model and the circumstances under which the military commissions contemplated by this bill and UCMJ courts differ 

are in our judgment circumstances that are necessary given the 

needs here. For example, there is no Miranda requirement imposed 

by this legislation. Article III1 of the UCMJ is specifically excluded 

from application here. Article III1 is what calls for Miranda warnings in UCMJ circumstances. 

The legislation also takes what I believe is a very appropriate 

and practical approach to hearsay. As you noted in your opening 

remarks, Mr. Chairman, the burden is no longer on the opponent 

to demonstrate that hearsay should be excluded. There is a notice 

requirement in the proposed legislation and if the proponent of the 

hearsay can demonstrate reliability and materiality and that the 

declarant is not available as a practical matter, given the unique 

circumstances of military operations and intelligence operations, 

the hearsay could be admitted. 

Military commissions are fundamentally different from UCMJ 

courts in that most often what you have in military justice is the 

punishment of a member of the U.S. military for some violation of 

the UCMJ, very often directed—of some sort of domestic nature. 

Military commissions are obviously for violations of the law of war. 

They are very often prosecuting people captured on the battlefield 

and, just given the nature of the way evidence is collected, there 

needs to be a recognition that the military can’t be expected to 

change how it does business to engage in evidence collection on the 

battlefield. 

The way this legislation deals with the hearsay rules I think is 

quite appropriate and is certainly an example of evident practical 

need. 

I would say the same when it comes to the rules on authenticity 

set forth in this proposed legislation. There is not a requirement 

like you would see in UCMJ courts or in civilian courts for what 

we in civilian courts would know as a strict chain of custody. There 

is a more practical approach, given the needs of military operations 

and intelligence collection. 

Chairman LEVIN. Can I interrupt you there because of our short 

time. If you could expand for the record any places where you beVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
16 

lieve we fall short of complying with the Hamdan standards, I’d appreciate that if you could do that for the record. 

Mr. JOHNSON. Yes, I’d be happy to. 

Chairman LEVIN. You could expand your answer, too. 

Mr. JOHNSON. Sorry for going on so long, Senator. 

Chairman LEVIN. We only have 6 minutes. 

Mr. Kris, let me ask you, representing DOJ: In your judgment, 

do you believe that this bill as drafted, that these provisions conform to the Hamdan standards? 

Mr. KRIS. Yes. To the extent that the uniformity principle from 

Hamdan applies to a statutorily created system of commissions, I 

think it is met here. Jeh mentioned some of the differences and I 

think his justifications make sense. We have some recommendations for change, but those aren’t rooted in the uniformity principle 

at all. 

Chairman LEVIN. While I’m asking you questions, it’s been argued that it’s not appropriate for DOD to prosecute terrorists. Do 

you believe that it is appropriate for DOD to prosecute alleged terrorists with these military commissions, instead of DOJ doing all 

of the prosecuting in Article III courts? 

Mr. KRIS. Yes. I think the President made clear in his May 21 

speech that we will prosecute in Federal court and where there is 

a law of war violation, we will also prosecute under a reformed system of military commissions, we will also prosecute law of war violations in those commissions. I think the President said it best 

when he said that we need to be using all instruments of national 

power against this adversary, and that includes military commissions. 

Chairman LEVIN. Thank you. My time has expired. 

Senator McCain. 

Senator MCCAIN. Thank you, Mr. Chairman. 

Mr. Johnson and Mr. Kris, if trials were held in Guantanamo or 

the United States would there be any difference in the proceedings? 

Mr. JOHNSON. Senator, if military commissions were held in the 

continental United States I think that we have to carefully consider the possibility that some level of due process may apply that 

the courts have not determined applies now. I think that that assessment has to be carefully evaluated and carefully made. 

Senator MCCAIN. What you’re saying is that you believe there 

could be some significant difference in procedure if the trials were 

held in Guantanamo or in the United States of America? 

Mr. JOHNSON. I’m not sure I would be prepared to say significant 

difference, Senator. 

Senator MCCAIN. I think it would be important for this committee to know what your view is. It might have something to do 

with the way that we shape legislation. If they’re going to have all 

kinds of additional rights if they are tried in the United States of 

America as opposed to Guantanamo, I think that the committee 

and the American people should know that. 

Mr. JOHNSON. One of the things that I mentioned in my prepared 

statement, Senator, is that when it comes to the admissibility of 

statements the administration believes that a voluntariness standard should apply that takes account of the realities of military operations. We think that is something that due process may require, 

17 

particularly if the commissions come to the United States, that the 

courts may impose a voluntariness standard. 

Senator MCCAIN. I hope that you and Mr. Kris will provide for 

the record what you think the differences in the process would be 

as to the location of those trials. I think it’s very important. Certainly it is to me. 

Mr. Kris, in your statement on page 2 you said: ‘‘It’s the administration’s view that there is a serious risk that courts would hold 

the admission of involuntary statements of the accused in military 

commission proceedings is unconstitutional.’’ Does that infer that 

these individuals have constitutional rights? 

Mr. KRIS. Yes. 

Senator MCCAIN. They do? What are those constitutional rights 

of people who are not citizens of the United States of America, who 

were captured on a battlefield committing acts of war against the 

United States? 

Mr. KRIS. Our analysis, Senator, is that the due process clause 

applies to military commissions and imposes a constitutional floor 

on the procedures that would govern such commissions, including 

against enemy aliens. 

Senator MCCAIN. What would those be, Mr. Kris? 

Mr. KRIS. They’d be a number of due process-based rights, one 

of which Mr. Johnson just mentioned, is we think there is a serious 

risk that courts will find that a voluntariness standard is required 

by the due process clause for admission of—— 

Senator MCCAIN. You are saying that these people who are in 

Guantanamo, were part of September 11 or have committed acts of 

war against the United States, are entitled to constitutional rights 

of the Constitution of the United States of America? 

Mr. KRIS. Within the framework that I just described, I think the 

answer is yes. The due process clause guarantees and imposes 

some requirements—that’s the way I think I would put it—on the 

conduct and rules governing these commissions. 

Senator MCCAIN. Well, that’s very interesting because I had 

never proceeded under that assumption in drafting this legislation 

and previous legislation. The fact is that they are entitled to Geneva protections under the Geneva Conventions, which apply, and the 

rules of war. I did not know nor know of any time in American history where enemy combatants were given rights under the U.S. 

Constitution. 

Mr. KRIS. I do think, Senator, there’s a difference between their 

rights—for example, they would not be entitled to the rights under 

Geneva for prisoners of war because these are—— 

Senator MCCAIN. No, their rights under the treatment of enemy 

combatants, the Geneva Conventions Common Article III. 

Mr. KRIS. Yes. Okay, thank you. 

Senator MCCAIN. We now have established that it is the view of 

the administration that enemy combatants or belligerents, whatever new name you’d like to call them, are now entitled to the constitutional rights of U.S. citizens? 

Mr. KRIS. Not at all. I don’t think that that’s right. I mean, both 

in terms of how we would describe this as a due process requirement that applies to the commissions even if they are prosecuting 

enemy aliens; and also I don’t think it’s right to equate the rights 

18 

or the rules that are required for commission proceedings against 

aliens necessarily with those that would apply against U.S. citizens. Those might come out differently. This is an extremely complicated area of law. 

Senator MCCAIN. It certainly is, Mr. Kris. But your statement for 

the record was ‘‘It’s the administration’s view that there are serious 

risks that courts would hold that admission of involuntary statements of the accused in military commission proceedings is unconstitutional.’’ 

Mr. KRIS. Yes. 

Senator MCCAIN. Therefore it means that they have some constitutional rights. 

Mr. Chairman, I know that there are other questions of the witnesses, and if there’s a second round maybe I’ll take advantage of 

it. Thank you, Mr. Chairman. 

Chairman LEVIN. Thank you, Senator McCain. 

Senator Lieberman. 

Senator LIEBERMAN. Thanks, Mr. Chairman. Thanks to the witnesses. 

Mr. Johnson, let me begin with an expression of appreciation for 

the process that the administration has gone through to come to 

the point that you’re at today. For me as we’ve gone through this 

deliberation about how to treat what I call prisoners of war, that 

is those suspected of violating the laws of war, it seems to me that 

we’ve had a hard time putting this in the context of our own sets 

of fairness related to the unique war we’re in. 

Obviously, this is a war against terrorists. They don’t fight in 

uniform. They don’t fight, for the most part, for nation states. This 

war may go on for a long time. Nonetheless, it seemed to me along 

the way that there was no sense to those who are arguing that 

these individuals apprehended for violations of the law of war 

should be tried in our Federal courts. In the sense that Senator 

McCain has just said, I don’t think they have the constitutional 

rights that we associate with American citizenship. Also they have 

not in my opinion violated Federal criminal law. They’ve violated 

the laws of war. 

I know that there were some who expected that the Obama administration’s review would end up recommending that all of these 

cases go to Federal court, and I appreciate the fact that you have 

not come to that conclusion, although I have some questions about 

some of the subparts of what you’ve done. I think this is really a 

very significant, very open-minded, very fair, very ultimately historic process you went through and reached I think generally 

speaking the right balance, and I appreciate it. 

You were asked just a moment ago whether you thought that the 

military commission provisions of the NDAA were within the 

Hamdan ruling of the Supreme Court. I want to ask you whether 

your judgment is that the military commission provisions of the 

NDAA are within the requirements of the Geneva Convention? 

Mr. JOHNSON. Yes, Senator, with room to spare, yes. One of my 

personal objectives, frankly, is that we devise a system that comports with the Geneva Conventions as well as Hamdan, as well as 

applicable U.S. laws. I think the answer to your question is yes, 

sir. 

19 

Senator LIEBERMAN. I thank you for that answer. I agree with 

you, and I particularly appreciate the clause you added, which is 

that the military commission provisions of the NDAA are not only 

within the requirements of the Geneva Conventions, but, as you 

said, with room to spare. I agree that we hold ourselves to very 

high standards, sometimes standards that are so high that they are 

unrealistic and in some sense self-destructive in the context of the 

war we’re in. 

I agree with you that what we’ve provided for in this legislation 

of this committee is well within the Geneva Conventions. 

Let me ask you a specific question that came up in the last exchange and testimony of Mr. Kris. In light of the judgment of the 

Supreme Court in the Hamdan case that certainly to me suggested 

approval of the U.S. Court of Appeals for Armed Forces (CAAF) as 

the place that the accused here can appeal from a judgment of the 

military commission—and the CAAF is not a standard Article III 

Federal court, as you well know. Why is the administration seeking 

a right of appeal from the military commissions to Article III Federal courts? Mr. Kris or Mr. Johnson? 

Mr. JOHNSON. Senator, let me take a stab at that initially at 

least. First, we agree and endorse the position expressed in the bill 

that it should be an expanded scope of review, review of the facts 

as well as the law. Our view is that we should retain the Court 

of Military Commission’s review and then have appeal directly to 

the DC Circuit. That would be in effect a four-tiered level of review, beginning with the trial court, and in our view would resemble in many respects UCMJ justice because you have that intermediate level of appellate court, rather than an appeal directly 

from the military commission’s trial level court to the CAAF. It 

would be our preference to have an appeal directly to the DC Circuit. 

But we agree with the concept of the expanded scope of review. 

Senator LIEBERMAN. Is it fair to say, then, that the administration’s suggested changes in this regard are not rooted in the Supreme Court’s uniformity principles as stated in Hamdan, but 

they’re rooted in some other requirement or some sense of the administration about what’s fair and just here? 

Mr. JOHNSON. I think that’s a fair statement, Senator. 

Senator LIEBERMAN. Let me ask you just to comment, to go back 

to what I said at the beginning and just describe in the time that’s 

left in my questioning period, why you reached the judgment on behalf of the administration or why the President ultimately reached 

the judgment that these cases that we’re talking about should not 

primarily go to our Federal courts? 

Mr. JOHNSON. As you probably know, the President signed an 

Executive order mandating a review of each detainee’s situation. 

That review is ongoing and, as you’ve seen in at least one instance, 

a detainee who had a pending military commissions case against 

him was transferred for prosecution in the Southern District of 

New York. 

I think it is fair to say that what the President and the administration have concluded is at least some of these detainees should 

be prosecuted for violations of the laws of war, that military commissions justice is the more appropriate forum, dependent upon a 

20 

variety of factors. In some situations, you have a situation where 

a detainee has violated both Title 18 and the laws of war, and we 

want to retain military commissions as a viable and realistic option. Whether almost everyone or everyone who is now a pending 

military commissions defendant will stay that way, I couldn’t say. 

The review is ongoing. 

Senator LIEBERMAN. Thanks. 

I want to just close the loop on the previous question, because 

my time is up, which is that I think the committee has made the 

right judgment in saying that the right of appeal from the military 

commissions should be to the CAAF and that there shouldn’t be an 

appeal to the Circuit Court for the District. 

Thank you. 

Chairman LEVIN. Thank you, Senator Lieberman. 

Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. I’d like to, one, 

compliment you and Senator McCain for trying to come up with a 

new bill. I think it would help the country if we could reform the 

process and I think we’re very close to a bill that we all can be 

proud of. 

About the appeals, the main thing for the public to understand 

is that any verdict rendered in a military commission trial will 

work its way into the civilian courts. Is that correct? 

Mr. JOHNSON. Yes, sir. 

Senator GRAHAM. No one will be imprisoned in this country 

based on a military commission verdict that does not have a chance 

to have their day in Federal court, civilian court? 

Mr. JOHNSON. Assuming they appeal, that’s correct, yes, sir. 

Senator GRAHAM. Okay. Now, when it comes to the idea of location, the courtroom at Guantanamo Bay is uniquely set up, I think, 

to do these trials. I would be interested to get your thoughts about 

how the location would matter. I’m not so sure, after the Supreme 

Court decisions treating Guantanamo Bay as an extension of the 

United States, that it would matter greatly. Like Senator McCain, 

I’d like to know how location would matter. 

Admiral MacDonald, one of the issues that we’re grappling with 

is the ‘‘material support for terrorism.’’ I think I understand the 

administration’s view that that is not a traditional charge under 

the law of armed conflict. But under the UCMJ, we incorporate the 

Assimilated Crimes Act (ACA). Could that doctrine be used here? 

Admiral MACDONALD. Yes, sir. You could incorporate it in under 

Title 18 through the ACA into the UCMJ and it could be charged. 

Senator GRAHAM. I think, Mr. Johnson, that gets back to your 

point. Some of these people can be charged under both sets of laws. 

Is that what you were trying to tell us? 

Mr. JOHNSON. Yes, sir. 

Senator GRAHAM. Now, Mr. Kris, do you agree with that theory, 

that we could use the ACA to incorporate material support using 

a Title 18 offense? 

Mr. KRIS. I think you could do that as a formal matter. There 

still remains the question whether material support historically 

was a law of war offense, under that label or a different label. 

21 

Senator GRAHAM. I totally agree with that debate. But if you 

were able to incorporate Title 18 offenses, that would resolve that 

issue, isn’t that correct? 

Mr. KRIS. It would, again to the extent that it’s a viable law of 

war offense. 

Senator GRAHAM. All right, thank you. 

Now, when it comes to evidentiary standards, are you familiar 

with The Hague procedures when they try international war criminals? 

Mr. KRIS. I am not. 

Senator GRAHAM. One thing I would suggest that you look at, I 

think our hearsay rules are much more restrictive, quite frankly. 

Do you agree with that, Admiral MacDonald? 

Admiral MACDONALD. Yes, sir, I do. We talked about this in 

2006. We looked at the International Criminal Tribunal for Rwanda and for Yugoslavia, and both of those tribunals have very liberal 

hearsay rules. 

Senator GRAHAM. When it comes to involuntariness, what kind 

of standard do they use in terms of admitting statements from the 

accused? 

Admiral MACDONALD. It’s the reliability of the statement. 

Senator GRAHAM. The point I’m making to the committee is that 

if you compare our military commissions system, particularly the 

reformed version, to an international court trial at The Hague, 

we’re much more, for lack of a better word, liberal in terms of providing due process and protections to the accused than you would 

get if you were going to The Hague. I have no problem with that, 

quite frankly. I think that’s a good thing. 

Let’s get back to what the courts are likely to look at in a military commission trial, Mr. Kris. I think the debate is a bit confusing. It’s not so much whether the individual accused has a constitutional status as an American citizen, but the courts will look 

at these trials in terms of due process and they will make a judgment as to whether or not it meets some minimum standard expected of an American court; is that correct? 

Mr. KRIS. That is essentially exactly what I was saying to the 

Senator. 

Senator GRAHAM. I think that is correct. When you look at the 

history of military commissions, the World War II German saboteurs trials is not exactly the showcase you would want to use. 

Those trials were conducted in a matter of days from the time the 

evidence was received to the time judgment was rendered, and they 

passed scrutiny, but I think when we look back in time it’s not 

something we would want to repeat. Is that your opinion? 

Mr. KRIS. I think I essentially agree with what you just said, and 

I think Justice Scalia has referred to the Quirin case as not the 

court’s finest hour. I think there is some question about whether 

you could apply those precedents straight on, given recent developments in the law. 

Senator GRAHAM. Do you have a problem with the totality of the 

circumstances test if we fill in the blanks in terms of admission of 

statements? 

Mr. KRIS. No, on the contrary, I think the totality of the circumstances test is the right test. Of course, the administration’s 

22 

position is that it should be used to determine voluntariness, albeit 

voluntariness that reflects the realities of a wartime situation. But 

I do think totality of the circumstances is what the judge would 

look at. 

Senator GRAHAM. The final thought here is about the difference 

between an Article III trial and a military commission trial. One 

of the big concerns that we have as a Nation, Mr. Johnson, is what 

percentage of the Guantanamo Bay detainees do you believe will be 

held off the battlefield but never go to an Article III court or a military commission trial? 

Mr. JOHNSON. A percentage or a number is tough to say at this 

point, Senator. As I mentioned a moment ago, our review of these 

detainees is ongoing. I do think that we should all assume that for 

purposes of national security and the protection of the American 

people there will be at the end of this review a category of people 

that we in the administration believe must be retained for reasons 

of public safety and national security. They’re not necessarily people that we’ll prosecute. 

Senator GRAHAM. Either the evidence is not the type you would 

take to a beyond a reasonable doubt trial or it has some national 

security implications. 

I’d just like to finish on this note. Admiral MacDonald, under domestic criminal law is there any theory that would justify an indefinite detention of a criminal suspect without a trial? 

Admiral MACDONALD. In our own domestic law? 

Senator GRAHAM. Right. 

Admiral MACDONALD. Not that I know of, Senator. 

Senator GRAHAM. In the military setting, is it a permissible behavior of a country to hold someone under the theory that they’re 

a belligerent enemy combatant indefinitely if the evidence justifies 

that finding? 

Admiral MACDONALD. Yes, sir, it is. That’s a recognized principle 

of the law of war. 

Senator GRAHAM. Do you agree with that, Mr. Johnson? 

Mr. JOHNSON. Yes. The Supreme Court held that in Hamdi in 

2004. 

Senator GRAHAM. Do you agree with that, Mr. Kris? 

Mr. KRIS. Yes, I agree with Mr. Johnson, yes. 

Senator GRAHAM. To conclude, the only theory that would allow 

this country to indefinitely detain someone without a criminal trial 

would be the fact that we find them to be part of the enemy force, 

they’re still dangerous, and they’re not subject to being released; is 

that correct? The process that would render that decision? 

Mr. KRIS. I’m not sure that dangerousness is actually even part 

of the initial judgment under the—— 

Senator GRAHAM. That’s true, it’s not required. 

Mr. KRIS. I think their status—and that’s obviously being litigated now in the habeas cases. I do think under Hamdi the court 

said that at some point that authority to detain could run out. But 

essentially I agree, I think, with what you’re saying, yes. 

Senator GRAHAM. Thank you. 

Chairman LEVIN. Thank you, Senator Graham. 

Senator Ben Nelson. 

Senator BEN NELSON. Thank you, Mr. Chairman. 

23 

I think what you said in terms of geography is that ‘‘geography 

matters’’ in terms of Article 22 court-martial or commissions, or geography may matter? In other words, where these military commission hearings are held, if outside the continental United States 

then perhaps a U.S. court would not or, could I say, could not intervene to provide extra protections under the Constitution? Mr. Kris? 

Mr. KRIS. The analysis really depends on a variety of factors and 

it may be—I think it is the case that geography would have some 

impact on it. But it is very difficult to be precise and predict exactly what would happen. 

Senator BEN NELSON. Would there be a difference between 

Guantanamo and, let’s say, Bagram Air Base, in terms of geography and what the courts may do with an Article 2 hearing? 

Mr. KRIS. I want to be very careful. That is a matter that is currently in litigation, so I think I want to just be very careful to say 

that I think there could be some differences, but probably not go 

much further than that. 

Senator BEN NELSON. Mr. Johnson, what are your thoughts 

about geography? 

Mr. JOHNSON. Senator, much of this is unchartered territory in 

the courts in terms of what rights, if any, would apply to these detainees. I would say that it’s our view that the detainees—whether 

in the United States or anyplace else, do not enjoy the full panoply 

of constitutional rights that an American citizen in this country 

would enjoy. 

Senator BEN NELSON. On a continuum, what I hear you saying 

at the present time under the current law, their rights are at this 

level, but it’s not clear whether or not the courts could rule that 

the rights increase in numbers or in depth? 

Mr. JOHNSON. Let me try it this way. I think it is fair to say that 

it is our view that some level of a voluntariness requirement would 

be applied to statements that we would seek to offer in a military 

commissions case, a military commissions prosecution and that the 

ex post facto clause in the Constitution would apply if, hypothetically, these cases were prosecuted in the United States. 

I would note, however, that in practice our military commissions 

judges have engaged in an ex post facto analysis anyway in assessing the prosecutability of certain of these detainees at Guantanamo. Judge Allred specifically went through an ex post facto analysis at Guantanamo. I’m advised that in practice many of our military commissions judges have gone through a voluntariness analysis in assessing the admissibility of statements. 

Senator BEN NELSON. Mr. Johnson, can you speak to the 

progress of the Guantanamo review task force? I think there were 

779 people who were detained at Guantanamo. As I understand it, 

544 have been transferred, with 229 remaining. Is that a fairly accurate number as far as you know? 

Mr. JOHNSON. Those numbers sound accurate to me, Senator. 

Senator BEN NELSON. Do we know the status of the remaining 

detainees? I understand that there are those that could be tried 

under either Article 2 or Article III courts, but do we know how 

many have already been determined to be, let’s say, under Article 

III? Because as I understand it Article III means that they would 

be coming to Federal courts for prosecution. 

24 

Mr. JOHNSON. At this point we have not completed our review, 

so I don’t have precise numbers for you. But I think it is fair to 

assume that at the end of the review we will have detainees in the 

five categories that the President outlined in his May 21st speech. 

There will be some prosecuted in Article III or we would seek to 

prosecute in Article III, some in military commissions, and some in 

that fifth category, some that are not prosecuted for various reasons, but for reasons of the safety of the American people and national security we want to continue to detain pursuant to the authority granted by this Congress with the Authorization for Use of 

Military Force (AUMF) and the Supreme Court holding. 

Senator BEN NELSON. Do you have any idea when that review 

may be completed? 

Mr. JOHNSON. Before the end of the year. 

Senator BEN NELSON. This year? 

Mr. JOHNSON. Yes, sir. 

Senator BEN NELSON. Okay. 

Admiral MacDonald, in your written testimony you addressed 

the proffered amendment to the MCA reported out by your committee and indicated that for the most part it addressed all of the 

matters that are and were of concern with regard to the MCA. Beyond the two issues that you highlight in your testimony, are there 

any other matters that ought to be addressed? 

Admiral MACDONALD. No, sir. Those are the two that I was referring to that we were unable to get back in 2006. 

Senator BEN NELSON. I suppose in asking where the administration proposes to hold the military tribunals, Article 2 cases—is it 

fair for me to ask what the administration’s view is of where to 

hold these, based on the fact that geography may matter? 

Mr. JOHNSON. We’ve certainly made no decisions about that. 

Congress in the supplemental that was recently passed asserted its 

rights and prerogatives to know what we have in mind in this regard. 

Senator BEN NELSON. I suppose that’s why I’m asking. 

Mr. JOHNSON. No decisions have been made and we continue to 

consider various options. 

Senator BEN NELSON. I assume there might be some advise and 

consent in conjunction with that? 

Mr. JOHNSON. I think in the supplemental language you’ve pretty 

much mandated that. 

Senator BEN NELSON. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEVIN. Thank you, Senator Nelson. 

Senator Martinez. 

Senator MARTINEZ. Mr. Chairman, thank you very much. 

Mr. Johnson, I’d like to ask, how will the Executive Branch make 

a determination of who gets tried under Article III and who may 

get tried in the MCA? 

Mr. JOHNSON. Senator, that is something that Mr. Kris and I 

have actually been working on as the representative of DOJ and 

I as the representative of DOD. As Mr. Kris stated, the President 

stated that where feasible we would seek to prosecute detainees in 

Article III courts. We are working through an expression of factors. 

25 

Senator MARTINEZ. Do you have a preference for an Article III 

court proceeding as opposed to a military commission proceeding? 

Is that by your preference or is that by rights that may be imbued 

upon the detainee? 

Mr. JOHNSON. I would state it in terms of, where feasible, we 

would prosecute people in Article III courts, but then you have to 

go through a variety of factors. For example: the identity of the victims; is there a law of war offense that could be more effectively 

prosecuted versus a Title 18 offense; identity of the place of capture, for example. 

We’re working through now a variety of factors for our prosecution teams to consider in terms of what direction to go. But I think 

the intent is to have a flexible set of factors, because it is the case 

that many of these detainees, those that are prosecutable, viewed 

to have violated both the laws of war in Title 18. 

Senator MARTINEZ. Admiral MacDonald, I wanted to ask you 

about the appeal process as envisioned, with the four-tiered process. It seems to me that if a defendant were charged with a Federal 

crime, a U.S. citizen was charged with a Federal crime somewhere 

in Florida, that defendant essentially has a one-tier appellate system, from a Federal district court to a circuit court of appeal, with 

a very unlikely appeal to the Supreme Court. 

A defendant in an American court, a citizen of this country, 

would not have as many appellate tiers as would one of the detainees in this instance, is that correct? 

Admiral MACDONALD. Yes, sir. But remember, Senator, we’re 

talking about conforming the commissions to the UCMJ and to our 

courts-martial process, and our court-martial process has—all of 

the services have a court of criminal appeals as a first tier of appellate rights. After that they appeal to the CAAF, which is the first 

civilian court within our military justice system to which they can 

appeal, and after that they have the right of appeal to the Supreme 

Court. 

I think what we’re saying is that if you want to, to the extent 

that you can, stay faithful to the UCMJ, that one way to approach 

it on appeal would be to allow the Court of Military Commission’s 

review, either military judges that currently sit on that court now 

or a combination of military and civilian judges, that they would 

have factual and legal sufficiency review powers, and then after 

that you could either go into the Federal system, to the DC Circuit 

as it’s constituted today, or you could go to CAAF and mirror the 

UCMJ system. Either of those paths would lead you ultimately to 

the Supreme Court. 

Now, can CAAF do legal or factual sufficiency? Yes, Senator, they 

can. They’re very skilled jurists. If the bill contains and continues 

to contain an appeal to the CAAF and that body is given both factual and legal sufficiency review, CAAF can do that. I think I 

would prefer the current system because our military judges are 

used to doing factual and legal sufficiency. But if you choose to go 

the CAAF route, the CAAF judges are capable of doing it. 

Senator MARTINEZ. You made recommendations with regards to 

how to handle classified evidence and also the standard for the admission of coerced statements. Do you have any other recommendations that you would make? 

26 

Admiral MACDONALD. No, sir, those are the two. Senator McCain 

mentioned that we have to get these commissions moving and the 

practical aspects. That’s really what my two recommendations go 

to. We are finding—and this is through discussions with the chief 

prosecutor—that they are having a lot of difficulty in using Military Rule of Evidence (MRE)–505 to govern classified evidence. 

The recommendation to you is a CIPA-like process, a CIPA type 

of process. I would call it CIPA-plus, where we import the good 

parts of MRE–505, which is to close a proceeding, a military commission when classified, close it to the public when classified evidence is being introduced; that we would take that in, add it to the 

CIPA rules, where we have 20 years of Federal practice that our 

judges can rely upon. My personal opinion is that’s probably a better approach to get these commissions moving. 

One of the complaints from the prosecutors is that the judges are 

demanding that they do everything with written submission, instead of what CIPA allows, which is an ex parte hearing where you 

can go in before the judge, you can get the issues resolved, and we 

can move on. That’s why I recommended that the committee take 

a look at CIPA-plus as a substitute perhaps for the provision that 

talks about MRE–505. 

On the voluntariness piece, I do disagree with the administration 

on this. I think the committee has it right on the reliability standard that exists in the bill. I think fundamentally there is a difference between a voluntariness standard that grew up in a law enforcement environment, that that’s different than the law of war 

context we find ourselves in. 

I am worried that a military judge that has a voluntariness 

standard imposed upon them is going to look at a statement taken 

at the point of a rifle when a soldier goes in, breaks down the door, 

and takes a statement from a detainee—I’m worried that they’re 

going to apply a voluntariness standard to that. I would argue 

that’s an inherently coercive environment, when you have a rifle 

pointed at you. I’m concerned a judge is going to look at that under 

a strict voluntariness standard and say that statement doesn’t 

come in. 

I would rather see this as part of a totality of the circumstances 

leading to is the statement inherently reliable. What I proposed is 

a series of factors that would give the judge more guidance perhaps 

on how to do that analysis. 

Senator MARTINEZ. Thank you very much. 

Chairman LEVIN. If you have actual language on your factors, 

you might want to share it with us, not now but for the record. 

Admiral MACDONALD. Yes, sir. Yes, Senator, I will. 

[The information referred to follows:] 

I propose the following language: 

27 


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Senator MCCAIN. But you’re basically in agreement with the legislation passed through the committee? 

Admiral MACDONALD. Yes, Senator, I am. 

Senator MCCAIN. Thank you. 

Chairman LEVIN. Senator Udall. 

Senator UDALL. Good morning, gentlemen. Thank you, Mr. 

Chairman. Senator McCain, Senator Graham, and I know Senator 

Reed, have all worked very, very diligently on this important set 

of questions. 

I have to note, can you imagine a lot of other countries in the 

world having this kind of discussion? It’s a tough discussion. It’s 

been contentious. But here we sit, in the best American tradition, 

deciding something as important as this. 

I was a member of the Armed Services Committee in the House 

for 4 years and I voted for legislation identical to the bill being proVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB

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29 

posed by this committee in 2006 that I thought struck a balance 

between military necessity and basic due process. That bill didn’t 

pass and I voted against the MCA that we’re discussing today. At 

the time, I thought that it risked tieing up—that is, the bill we 

passed—the prosecution of terrorists with new, untested legal 

norms that didn’t meet the requirements of the Hamdan decision. 

I thought it might endanger our servicemembers by attempting to 

rewrite and limit our compliance with Common Article III of the 

Geneva Conventions. I thought it might undermine the basic standards of U.S. law and it departed from a body of law well understood by our troops. 

Given that, I’m really glad we’re here today looking at this opportunity to revisit this important legislation. 

Admiral MacDonald, if I might turn to you, I was a member of 

the HASC almost 3 years ago when you testified about the importance of reciprocity. I want to quote you. You said that you would 

be concerned about other nations looking in on the United States 

and making a determination that if it’s good enough for the United 

States it’s good enough for us, and perhaps doing a lot of damage 

and harm internationally if one of our service women or service 

men were taken and held as a detainee. 

How do you think the military commission provisions in Senate 

bill 1390 measure up in terms of reciprocity? Are these provisions 

good enough for the United States in your view? 

Admiral MACDONALD. Yes, Senator, they are, and I would get 

back to what Senator Levin said. The two major points here that 

we have to be concerned about are the reciprocity issue and creating a just and fair system. I think we need to be prepared to take 

any unlawful or unprivileged enemy combatant to one of these commissions. 

If we believe that we have created a fair and just process with 

this bill, we should not be shy about taking anyone before these 

commissions for, I think, Senator, just that reason. I would be very 

comfortable having a U.S. servicemember subjected to these rules. 

Senator UDALL. Thank you for that answer. 

Mr. Kris and Mr. Johnson, if I might turn to you on the question 

of sunset provisions. Mr. Kris, you state that the DOJ supports 

such a sunset provision. Could you talk a little bit more along those 

lines? Then Mr. Johnson, I’d like to hear the DOD’s views on a sunset provision, if you would. 

Mr. KRIS. Yes, thank you, Senator. With respect to the sunset, 

of course, I’m not representing DOJ alone, but all of my testimony 

is representing the administration as a whole. Our basic idea that 

underlies the sunset—and we haven’t specified any specific number 

of years—is as long as there’s a continuity provision to allow pending cases to continue past the sunset, that it’s a good idea for Congress to come back and take another look at this after the passage 

of some time and see whether there have been any developments 

that counsel some changes or a fresh look. That’s really I think 

what it boils down to. 

Senator UDALL. Mr. Johnson? 

Mr. JOHNSON. Senator, I would agree with what Mr. Kris said, 

provided that it doesn’t jeopardize ongoing prosecutions. We think, 

in the administration, a sunset provision is a good idea. We don’t 

30 

have a magic period of years. But given the reality of changing circumstances on an international level and lessons that could be 

learned from military commissions prosecutions in the immediate 

years forward, we think a sunset provision is a good idea. 

Senator UDALL. Thank you for those insights. 

If I might, let me turn to a follow-up question on comments that 

the chairman made in his opening statement on providing the resources for the defense side of the efforts that we’re discussing 

today. The chief defense counsel issued a memo that I thought 

raised some troubling issues and I’d be interested in the views of 

each of the panelists on the current military commissions system 

and whether the committee bill addresses the needs of the defense 

efforts appropriately. 

Maybe we can start with Admiral MacDonald and move back 

across. 

Admiral MACDONALD. Sir, actually I agree with the concerns expressed in the senior defense counsel’s memorandum. These have 

been longstanding concerns about resources, about access to experts. I think it’s something that needs to be addressed. 

I don’t see anything, to your point about is it in the current bill, 

I don’t see anything in terms of resourcing that would get at that, 

that particular issue. But I do think that the defense counsel needs 

more resources. 

Senator UDALL. Mr. Johnson? 

Mr. JOHNSON. Senator, the legislation itself codifies a rule 

change we made in May to permit the detainee more latitude in selecting his defense counsel. But in terms of resources, at present 

Colonel Maciola, who I consult with often, who is the chief defense 

counsel, has 43 military lawyers assigned to him, 5 civilian, and 

I’m told he’s authorized to go up to 52. 

In response to your question about can we do better, one of the 

things that I’m focused on, that I’m concerned about, whether or 

not it’s in this legislation is something that I intend to push on, is 

making sure that our defense counsel are adequately trained in 

capital cases. In the civilian world you have the concept of ‘‘learned 

counsel.’’ There are American Bar Association standards for what 

are learned counsel for capital cases. I think we owe it to the system to make sure that our defense counsel are adequately trained 

to handle capital cases. 

Senator UDALL. Mr. Kris, my time’s expired, so if you could be 

succinct, I’d like to hear your answer. 

Mr. KRIS. Fortunately, I can be. This is primarily a DOD issue 

and so I’d just like to associate myself with the remarks of my colleagues. One thing to point out is that the committee’s bill does follow our rule change in allowing a choice of counsel. I think it 

doesn’t define the pool from which that choice would be made, and 

that would be something I think we’d like to work with you on. 

Senator UDALL. Thanks again, gentlemen, for your enlightening 

testimony. It will help us answer some important questions. Thank 

you. 

Chairman LEVIN. Thank you, Senator Udall. 

Senator Reed. 

Senator REED. Thank you, Mr. Chairman. Thank you, gentlemen. 

31 

I just want to clarify some issues that have been previously 

touched upon. It’s my understanding that in the Boumediene case 

in 2008 that the Supreme Court recognized the right of habeas corpus, that it’s a constitutional right. Is that correct, Mr. Kris? 

Mr. KRIS. Yes. 

Senator REED. So there is at least one constitutional right that’s 

been recognized in terms of enemy aliens and that is habeas corpus; is that correct? 

Mr. KRIS. Yes. 

Senator REED. That’s the only one? 

Mr. KRIS. So far, I believe that’s the only right the Supreme 

Court has said applies there. 

Senator REED. The issue that we’ve talked about with respect to 

sort of the geography of these trials is that—and it’s just at this 

point to get your opinion—moving some of this military commission 

to the United States might engender other appeals that could trigger requests for additional constitutional rights? 

Mr. KRIS. I think, regardless of where these cases are held, there 

will be appeals, depending on which appellate process is adopted, 

and there are a number of them under consideration, including in 

the bill. What results from those appeals I think, as Mr. Johnson 

and I have both said, is very difficult to predict because there’s 

been quite a lot of development in the law over the last 50 years 

since commissions were last used. 

Obviously, there is some standard of due process that applies to 

a military commission. Exactly what that standard is, as I say, is 

sometimes difficult to discern. In light of developments like the 

Boumediene decision, it can be I think also increasingly difficult to 

be sure. I do think geography may play a role in the rights or the 

procedures that are required. But again, it’s hard to know for sure. 

Senator REED. Let me also raise another issue. That is, Admiral 

MacDonald pointed out that the law of war recognizes the indefinite detention of combatants until the end of hostilities. My impression is that Hamdan reserved that issue and did not decide it. Is 

that accurate, Mr. Kris? 

Mr. KRIS. I think you may be referring to Hamdi. 

Senator REED. Hamdi? 

Mr. KRIS. Which is the decision in which the court recognized the 

authority to detain under the law of war, and the court left open, 

I think, the question whether that authority would at some point 

run out. I think that’s an accurate statement. 

Senator REED. I would presume that the category of individuals, 

that fifth category, those that have to be held because of their potential, will have the right to habeas to, periodically at least, raise 

the issue of whether they still should be detained? Mr. Johnson? 

Mr. JOHNSON. In fact almost all, if not all, of the Guantanamo 

detainees are suing the government in habeas. The President in his 

May 21 remarks stated with respect to that fifth category that 

there would be some form of periodic review, even subsequent to 

habeas proceeding, and that is something that we’re working on 

now. 

Senator REED. Thank you. 

One of the other reasons to move quickly but thoughtfully in this 

process of military commissions is that this is a way in which to 

32 

ensure due process prior to a court deciding one of the habeas 

cases; is that accurate? 

Mr. JOHNSON. That’s a fair statement. 

Senator REED. That’s a fair statement. I think it would serve us 

well to move with dispatch, but thoughtfully, on this legislation. 

Mr. JOHNSON. Yes, sir. 

Senator REED. Admiral MacDonald, you commented about the 

voluntariness standard and your concerns, legitimate concerns, it 

might tend to, I won’t say confuse, but it might tend to complicate 

the decisionmaking of military judges. Ultimately aren’t we in a 

practical position trying to speculate about what the Supreme 

Court will hold, because that’s one reason why we’re here today 

doing this again? 

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

that’s been stated this morning about how unsettled the law is in 

this particular area. What I would propose is using voluntariness, 

not as the only standard, but subsuming that as one of a number 

of factors, others being the extent to which a statement is corroborated, looking at the reliability of the statement within the four 

corners of the document itself. 

My opinion is that the Supreme Court or a Federal court would 

recognize that there are fundamental differences between a standard that grew up in a law enforcement paradigm versus one that 

we’re trying to understand in a law of war paradigm. The reason 

I talk about this balancing test, this totality of the circumstances 

and the number of factors, is I think that will provide the judge 

with a kind of a guidepost. For example, if you’re evaluating a 

statement that was taken at the point of capture, you might weigh 

voluntariness less, because it’s a more coercive environment, than 

you would corroboration and the four corners of the document. 

As you become more attenuated from the battlefield, for example 

6 months to a year after the detainee is removed from the battlefield and is in a facility like Guantanamo, then perhaps voluntariness in the judge’s mind would be more important. But we would 

leave that to the military judge to determine on a case-by-case 

basis as he or she sees it. 

Senator REED. Thank you very much, Admiral. 

If I may have one final question, please, of Mr. Johnson. Is it 

your intention or have you decided to either try, give everyone 

who’s in Guantanamo some type of due process, either military 

commission or a trial in Article III courts, or are there some people 

that simply will not get any procedure at all, that will be deemed 

to be an enemy combatant who will be detained? 

Mr. JOHNSON. Putting aside anyone who has been released or 

may be transferred to a third country in the future, I think it’s accurate to say that the remaining population will either be detained 

because we’ve been upheld in the habeas litigation and they’re subject to that periodic review I referred to a moment ago, or those 

that violate the laws of war, that we feel we can and should prosecute, we prosecute in a military commission, and those that can 

be prosecuted for violations of Title 18 will be referred to DOJ and 

Article III courts. 

Senator REED. Thank you, Mr. Johnson. 

Chairman LEVIN. Thank you, Senator Reed. 

33 

Senator Hagan. 

Senator HAGAN. Thank you, Mr. Chairman, and thank you, gentlemen. 

Over the course of many years the former administration has released a number of detainees from Guantanamo. Obviously, we are 

hoping that many of the other countries will take some of these detainees that are remaining. We need to be mindful of the fact that 

the countries in the region, such as Yemen, are currently incapable 

of mitigating the threat posed by the returned Guantanamo Bay 

detainees. Whether the country lacks the appropriate institutions 

or mechanisms of enforcement, such as a counterterrorism law, or 

just the ability to prosecute these detainees. Additionally, many 

countries in the region may not be willing to accept them. 

I think we need to work with the countries in the region that 

have a proven track record in rehabilitating the terrorists to accept 

detainees transferred from Guantanamo Bay. According to the Office of the Secretary of Defense (OSD), Saudi Arabia remains one 

of the most reliable counterterrorism partners in accepting detainees that have transferred from Guantanamo Bay. The Saudis have 

actually institutionalized a rehabilitation program that was developed by the ministry of interior to de-radicalize and rehabilitate 

the former detainees for reintegration into the society in Saudi 

Arabia. 

According to OSD, efforts are under way to convince Saudi Arabia to accept some of the Yemeni detainees that have Saudi tribal 

affiliations into the Kingdom’s rehabilitation program. 

My question for all of you is, how is DOD addressing the problem 

that many countries in the region are just simply not capable of 

mitigating the threat posed by the Guantanamo Bay detainees and 

they lack the appropriate institutions and mechanisms to prosecute 

them? Also, can you provide your opinion on working with the 

countries in the region, such as Saudi Arabia, to accept these Yemeni detainees that are transferred from Guantanamo Bay that 

share the same tribal affiliations? 

Mr. JOHNSON. Senator, I agree with just about everything you 

said. Many people do not understand that it’s not as simple as, oh, 

XYZ country is willing to take the detainee back, so we can send 

them back. There needs to be in place an adequate rehabilitation 

program where the circumstances warrant or the ability to monitor 

in that accepting nation so that the detainee doesn’t simply return 

to the fight and that we minimize to the fullest extent possible any 

acts of recidivism for those who are transferred or released. 

The safety of the American people is the utmost concern. We believe strongly that rehabilitation programs like the one you referred to are something that we should encourage, promote, and it’s 

something we’re very, very focused on. 

Senator HAGAN. Mr. Kris? 

Mr. KRIS. I agree with everything that Mr. Johnson said. It is 

absolutely essential that when we transfer these people to foreign 

countries that we do so under conditions that ensure safety. The 

rehabilitation program that the Saudis have is an excellent program from what I understand. 

Admiral MACDONALD. Senator, I would agree with Mr. Johnson 

on this. Particularly with our military members, we’re concerned 

34 

about returning fighters to the battlefield. This is a big issue for 

us. I think the way Mr. Johnson characterized it is exactly right. 

Senator HAGAN. Thank you. 

Also, I think that we need to be mindful that, although the interrogation of detainees produces obviously valuable information and 

sources of intelligence, we also know that they can compromise the 

ability to prosecute detainees, obviously, if the evidence obtained is 

through an interrogation method that would involve torture. 

Mr. Kris, can you just describe the process in which DOJ is reviewing the evidence associated with each of the Guantanamo Bay 

detainees to determine if they can in fact be prosecuted and how 

DOJ is working with DOD in this regard? 

Mr. KRIS. Yes, I’d be happy to do that, Senator. Mr. Johnson and 

I are working closely together on this. There is obviously the review by the task force that was set up by the Executive order, that 

makes judgments about whether cases are potentially prosecutable. 

At that point they need to be reviewed both by DOJ and DOD, 

working together to try to figure out, are these cases really appropriate to indict either in an Article III court or to bring before a 

military commission. 

As Mr. Johnson and I have talked about, this is a fact-intensive 

judgment. It requires a careful assessment of all of the evidence, 

identity of the victims, location of the offense, and a variety of 

other factors. 

I would point out that these kinds of forum selection choices are 

not unfamiliar to Federal prosecutors. They have to make these 

kinds of choices in other cases as well, whether it’s between Federal and State or United States and foreign or even UCMJ and Article III courts. So there has to be a process by within the case is 

really carefully reviewed and worked up by a joint team and then 

a judgment made about whether and where it ought be prosecuted. 

Senator HAGAN. Thank you. 

Thank you, Mr. Chairman. 

Chairman LEVIN. Thank you very much, Senator Hagan. 

We’re going to have a 2-minute second round with this panel. I 

wish it could be a lot longer. 

First to Admiral MacDonald. I didn’t ask you this question the 

first round, so let me ask you now. Do you believe that our language conforms to the Hamdan standards? 

Admiral MACDONALD. Yes, sir, I do. 

Chairman LEVIN. Second, Admiral, I think Mr. Johnson said that 

the preference here would be to have more Article III trials. We 

will I think hear some testimony that all the trials should be Article III, that there shouldn’t be any military commissions. I’m wondering if you could tell us as kind of a military man, but a JAG 

officer in the Navy, why military commissions at all? What are 

those circumstances which make it difficult, that I think Mr. Kris 

and Mr. Johnson are working through, as to why would you want 

to try anyone under military commissions or need to try anybody 

with military commissions? 

Admiral MACDONALD. Well, Senator, I think again it goes back 

to the UCMJ and Federal law is designed for a different model. It’s 

designed for law enforcement. We’re in a wartime environment. 

35 

Chairman LEVIN. Give us some practical parts of that environment which would lead you to conclude we ought to have military 

commissions try people or that we need to have the military commissions? 

Admiral MACDONALD. Again, Senator, it would go to that very 

coercive environment. We’re relying upon our soldiers to go into a 

dangerous environment, where in many instances they have to 

break down doors, and we’re worried about their safety. They’re 

worried about it. We don’t want them to have to stop and think 

about giving Miranda rights or giving Article III1B rights under 

the UCMJ. We don’t want them thinking, in my personal opinion, 

about whether or not the statements that they are getting from 

someone in a house that they’ve just broken into, whether that 

statement is purely voluntary or not. 

I think that’s recognized and the Supreme Court recognized that 

in the Hamdan case, that there are these unique circumstances 

that come up in a law of war environment that just cannot be handled under two different systems that were created for a completely 

different reason. 

The other thing that I would say, sir—and this is to your point 

in your opening about a fair and just process. I think we need to 

be clear. As we go forward with these commissions, we need to feel 

that these commissions can try anyone, anyone that fits within the 

jurisdictional definition that you’ve put in the bill, the personal jurisdiction section. We ought to feel very comfortable taking anyone. 

Now, I understand that the President prefers Article III courts. 

But in my opinion, when we leave here today we ought to be looking at this bill and saying to ourselves, it is fair and just. To Senator Udall’s question, we would feel very comfortable having our 

own servicemembers tried under this kind of a process. 

I don’t think we should kid ourselves. Any enemy combatant 

should be able to be tried under this process. 

Chairman LEVIN. Admiral, just quickly, relative to your totality 

of the circumstances point as to whether or not a statement obtained is coercive; in our bill, a statement that is obtained through 

cruel, inhuman, and degrading treatment is not admissible, period. 

What you are suggesting is that, instead of adding a ‘‘voluntary 

standard’’ to that, that there be something much more carefully defined so a judge can look at the totality of the circumstances to 

take into account these factors involving warfare and the use of 

force. Is that accurate? 

Admiral MACDONALD. Yes, Senator. We pushed in 2006 to eliminate the discrimination between statements taken before December 

30, 2005, the date of the Detainee Treatment Act, and a standard 

imposed to statements after. Your bill eliminates that distinction 

and so statements taken under torture are eliminated. CID statements, they’re eliminated. I’m talking about some level of coercion 

below those two standards. 

Chairman LEVIN. Torture is defined by the Geneva Conventions. 

Admiral MACDONALD. Yes, sir. 

Chairman LEVIN. There’s one more thing I have to clear up and 

it is this question of location. Our bill clearly is not going to distinguish what procedures are dependent on the location of the miliVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
36 

tary commission. I mean, there’s no way that our statutory language can make that distinction. 

I think that you were pressed, Mr. Johnson, and I think Mr. Kris 

to some extent, to describe where it might make a difference, I 

guess in terms of a judicial or court or a judge’s opinion as to depending on where the location is. I don’t see that at all. I must tell 

you, I don’t see how the location of a military commissions hearing 

can have an effect at all. It won’t have an effect nor can it in the 

way we write the procedures. 

Finally, however, on the other side of the coin, if you’re going to 

try people for Article III crimes, which is your preference, there’s 

no way practically those folks can be tried in Guantanamo. You 

cannot have a jury empanelment that takes months, with hundreds 

of citizens dragged down to Guantanamo to live while a jury is 

being empaneled in an Article III criminal case. 

There are many reasons why we need to bring people, if we’re 

going to try them for crimes under Article III, which we want to, 

to the United States as a practical matter. As far as where a military commission is held, I don’t see that there is a difference. 

You’ve been asked for the record to give us any thoughts on that, 

and of course that request I know you will honor and give some 

thought to. 

But I just don’t offhand see that it could make any difference as 

to the procedures as to where a military commission is held. That’s 

a statement. It’s not a question. I’m way over my time. If you want 

to react to that for the record—Mr. Kris? 

Mr. KRIS. First, I agree with you that it’s hard to imagine an Article III prosecution occurring at Guantanamo. Second, in talking 

about location, Jeh and I have been, I think, perhaps cautious just 

because these are difficult issues, and we will get you something 

for the record. 

But third, I just want to make clear, despite the difficulties, our 

best prediction is that voluntariness will be required as a matter 

of due process here. It’s a voluntariness standard that is based on 

totality of the circumstances and it’s very similar, I think, to what 

Admiral MacDonald was talking about. That is, you have to take 

account of the realities of war. But I do want to make clear that 

we’ve come to that conclusion. 

Chairman LEVIN. That is the position of the administration. We’ll 

welcome language from both of you on that. But our bill as it 

stands does incorporate the Geneva Conventions. 

[The information referred to follows:] 

[See responses to questions number 28 and 29.] 

Chairman LEVIN. Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. 

I think we’ll find some common ground here about the evidentiary standard as far as a statement goes. I think we both view 

it the same. Admiral MacDonald, you described the situation very 

well. When you’re in detention outside the battlefield, the analysis 

will be different than if you’re in the middle of a firefight. The 

judges should be able to accommodate those circumstances. I don’t 

think there’s really a whole lot of difference, Mr. Kris, between you 

and Admiral MacDonald when you get there. 

37 

This location issue is very important because of the politics of 

this, for lack of a better word. Mr. Johnson, is it your view that 

closing Guantanamo Bay would be an overall benefit to the war effort and starting over on detainee policy? 

Mr. JOHNSON. It’s my view, Senator, which is also the view of the 

administration, but it’s my view that closing Guantanamo enhances national security. 

Senator GRAHAM. Maybe being the odd guy out as a Republican, 

I believe that also, simply because Generals Petraeus, Odierno, and 

every other combat commander has said that being able to start 

over with detainee policy would take a tool off the table used by 

our enemies, because Guantanamo Bay, quite frankly, is the bestrun military prison in history right now. Do we all agree with that, 

the current state, Admiral? 

Admiral MACDONALD. Yes, sir, I do. 

Senator GRAHAM. Mr. Johnson? 

Mr. JOHNSON. I’ve been there. The professionalism of the Guards 

at Guantanamo is remarkable. I’ve visited civilian clients in a few 

Federal Bureau of Prisons places and I agree that the professionalism of our personnel there is really remarkable. 

Mr. KRIS. I too have visited GTMO and I also was quite impressed. 

Senator GRAHAM. To the Guard force families who may be listening, what your loved one goes through every day at Guantanamo 

Bay is a real sacrifice. That is a tough place to do duty. Having 

said that, it is what it is, and starting over with detainee policy I 

think could help the country. 

Mr. Kris, you said one of the goals of a reformed commission is 

to let the international community know that there’s a formal legitimacy to the commission that we haven’t been able to have otherwise; is that correct? 

Mr. KRIS. I do think it is important, and I take it to be one of 

the main reasons that we’re doing this work, that the committee 

is doing this work, is to enhance the legitimacy. 

Senator GRAHAM. I totally agree. But the last thought is, I just 

can’t believe, quite frankly, given the Supreme Court cases, that if 

you close Guantanamo Bay, move the detainees within the United 

States and performed a military commission trial like we did in 

World War II, that there’d be a substantial difference. What I don’t 

want to have taken away from this hearing is that if we close 

Guantanamo Bay and move the detainees within the United States 

that there will be conferred upon them a plethora of legal rights 

they wouldn’t have otherwise. 

Can you just address that? 

Mr. KRIS. It may be helpful if we say this. There are a number 

of I think relatively modest differences between the committee’s bill 

and the administration’s proposal. As you’ve said, they’re not vast 

and we do approve of and support the bill. 

The changes that we’re recommending we think would be ample 

to survive constitutional review even if the commissions were held 

in the United States. 

Senator GRAHAM. Just the location alone is not going to change 

the dynamic the court would apply in a dramatic way? 

38 

Mr. KRIS. No. We think that what we’re proposing will pass muster comfortably in the United States. 

Mr. JOHNSON. Senator, we’re not suggesting—and I want to emphasize that—that the full range of constitutional rights would 

apply depending upon location. We have referred in this hearing 

today to voluntariness. Mr. Kris is right, when you look at the suggestion from the administration on a totality of the circumstances 

voluntariness test it’s really not that different from what Admiral 

MacDonald has described. 

Admiral MACDONALD. Senator, I think as you have just pointed 

out, this is really coming down to that, that particular right, and 

the voluntariness test. I would align myself with Mr. Kris, that 

blaming the sites of the military commission in terms of additional 

constitutional rights should not matter in this. I think we probably 

can reach some common ground between what I would consider to 

be a balancing test using voluntariness and what the administration’s position is right now. 

Chairman LEVIN. Thank you, Senator Graham. 

Senator Lieberman. 

Senator LIEBERMAN. Thanks, Mr. Chairman. 

Chairman Levin asked Admiral MacDonald a question, a rhetorical question of why would you try any of these people in a military 

commission setting, as our bill requires? I thought your answer, 

Admiral MacDonald, was compelling and very principled. To a certain extent, I suppose what I really want to do is ask the question 

from a different perspective of Mr. Johnson and Mr. Kris, which is: 

Why would anyone prefer to try people apprehended for violations 

of the law of war in an Article III Federal court? As you said, Mr. 

Johnson—I was disappointed with your answer and it kind of 

pulled me back a little bit from my feeling of appreciation toward 

the administration for accepting the role for the military commissions in handling these people. 

I mean, the fact is that from the beginning of our country, from 

the Revolutionary War, we’ve used military tribunals to try war 

criminals or people we have apprehended, captured, for violations 

of the law of war. Again, I think the unique circumstances of this 

war on terrorism against the people who attacked us on September 

11 may have led us down, including the Supreme Court, some 

roads that are not only to me ultimately unjust, but inconsistent 

with the long history that we’ve had here. 

We talked before about how military commissions are not only 

within the Hamdan decision, but certainly within the Geneva Convention, which is the international standard for fairness and justice 

in handling people captured during a war. 

Why would you, in light of all that, say that the administration 

prefers to bring these people before Article III Federal courts instead of military commissions, which are really today’s version of 

the tribunals that we’ve used throughout our history to deal in a 

just way with prisoners of war? 

Mr. JOHNSON. Senator, please don’t misinterpret my remarks. I 

applaud this committee’s effort and this committee’s initiative to 

reform the MCA. I think that military commissions should be a 

viable, ready alternative for national security reasons for dealing 

with those who violate the laws of war, and I’m glad we’re having 

39 

this discussion right now and I thank the committee for undertaking this. 

As we said, by and large we definitely support what you’re doing. 

The President has made that clear. I’m going to say this on behalf 

of the administration, when you’re dealing with terrorists, who 

have a fundamental aim of killing innocent civilians, it is the administration’s view that when you direct violence on innocent civilians, let’s say in the continental United States, that it may be appropriate that that person be brought to justice in a civilian public 

forum in the continental United States because the act of violence 

that was committed against the civilians was a violation of Title 18 

as well as the law of war. 

We believe strongly that both alternatives should exist. 

Senator LIEBERMAN. Well, I hear you. I respectfully disagree insofar as the administration has stated today a preference for trying 

these people in Article III courts. I think, based on what you’ve just 

said, essentially the effect of it is to give these war criminals, people we believe are war criminals—that’s why we captured them— 

the greater legal protections of the Federal courts because they 

have chosen to do something that has pretty much not been done 

before in our history, which is to attack Americans, to kill people 

here in America, as they did on September 11, civilians, innocents, 

it doesn’t matter, and to do it outside of uniform. 

I think it puts us in a very odd position. We’re giving these terrorists greater protections in our Federal courts than we’ve given 

war criminals at any other time throughout our history, even 

though in my opinion they are at least as brutal and inhumane, 

probably more brutal and inhumane, than any war criminals we’ve 

apprehended over the course of the many wars we’ve been involved 

in. 

Yes, it may be also an act of murder to have killed people who 

were in the Twin Towers on September 11, but it was an act of war 

and the people who did that don’t deserve the same constitutional 

protections in our Federal courts as people who may be accused of 

murder in New York City. I say New York City because the attack 

was there. 

I’m over my time. This is a very important discussion which I 

look forward to continuing with respect, with you and others in the 

administration. 

Thank you. 

Chairman LEVIN. Thank you, Senator. 

Senator Martinez. 

Senator MARTINEZ. Thank you, sir. 

To follow up on that, I think that it’s fascinating for us to discuss 

a person like Khalid Sheikh Mohammed, who didn’t wear a uniform and in fact inflicted great harm upon civilians, not only here 

but in other parts of the world. He considers himself to be a part 

of a movement, of a political movement, that we would then consider a person like that to have a preference for trying him as a 

criminal under Title 18 in an Article III court and according him 

an additional set of legal rights as opposed to in a military tribunal. 

That begs another question. If we are doing Article III trials, as 

the chairman was suggesting, we then also are talking about closVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
40 

ing Guantanamo by the end of the year. There’s no way for 220- 

some odd people to be processed through some proceeding, whether 

Article III or military commissions, in that timeframe. Where will 

they then be? I guess they’ll be here. What about those that are 

then acquitted? Where do they go? What happens to them? 

Would you mind touching on those issues? 

Mr. JOHNSON. You’re correct, you can’t prosecute some significant 

subset of 229 people before January. Those that we think are prosecutable and should be detained we will continue to detain, whether it’s at Guantanamo or someplace else. 

The question of what happens if there is an acquittal is an interesting question. We talk about that often within the administration. I think that as a matter of legal authority if you have the authority under the laws of war to detain someone—and the Hamdi 

decision said that in 2004—that is true irrespective of what happens on the prosecution side. 

Senator MARTINEZ. Therefore the prosecution becomes a moot 

point? 

Mr. JOHNSON. No, no, I’m not saying that at all. I’m saying you 

raised the issue of what happens if there is an acquittal. 

Senator MARTINEZ. Right. 

Mr. JOHNSON. In my judgment, as a matter of legal authority— 

you could get there—there might be policy judgments one would 

make, but as a matter of legal authority, if a review panel has determined this person is a security threat and they’ve lost in their 

habeas and we’ve gone through our periodic review and we’ve made 

the assessment the person is a security threat and should not be 

released, if for some reason he’s not convicted for a lengthy prison 

sentence, then as a matter of legal authority I think it’s our view 

that we would have the ability to detain that person. 

Whether in fact that actually happens I think would depend 

upon the circumstances and the facts of the particular case. But as 

a matter of legal authority, I think we have law of war authority, 

pursuant to the authority Congress granted us with AUMF as the 

Supreme Court interpreted it, to hold that person, provided they 

continue to be a security threat and we have the authority in the 

first place. 

Senator MARTINEZ. Thank you. 

My time is up, but I will just conclude with a comment, that I 

truly believe that these are not criminals, that these are people engaged in a very profound battle against this country as part of a 

non-state actor for some of them, but they nonetheless do not really 

belong treated as criminals, but as people that are involved in 

something much deeper and greater than that. 

Chairman LEVIN. Thank you, Senator Martinez. 

Senator Udall. 

Senator UDALL. Thank you, Mr. Chairman. I’ll be brief. 

I want to thank the three panelists for your excellent testimony. 

I want to also acknowledge the fact that the civilian judicial system 

is interfacing and working with the military judicial system. I 

speak as a non-lawyer, I’m already getting into deep water here. 

It seems to me that our judicial system is a living, evolving, growing thing, if you will, and we’re working here to make sure that 

it’s nurtured. Another way to look at this perhaps is that you have 

41 

two different kinds of software systems that we’re trying to integrate and understand together. Again, I want to thank the civilian 

and the defense establishments for working together. 

Any time I have remaining, Mr. Chairman, I pre-yield it to the 

great questions from the JAG officer who sits on this Senate committee, Senator Graham, who I thought has been very, very informative, very incisive with his questions and comments today. 

Senator GRAHAM. Really, we do have two legal systems. Habeas 

rights have been granted to Guantanamo Bay detainees. While I 

don’t agree with that, under the bill that Senator Levin and I 

wrote, every detainee would wind up in Federal court, the DC Circuit Court of Appeals. The Supreme Court ruled that habeas rights 

apply to the detainees. 

We need to look as a Nation about creating uniformity to these 

habeas rights. Do we as a Nation want habeas petitions to allow 

for lawsuits against our own troops? A medical malpractice case 

was brought under the old habeas system. I think, Senator Udall, 

we can streamline the habeas process. There is a role for an independent judiciary. 

I would just like to conclude with this. No one should be detained 

in America for an indefinite period of time that doesn’t go to a civilian court or a military court without an independent judicial review. I don’t want people to believe that folks are in jail because 

somebody like Dick Cheney or fill in the blank with a politician 

said so. It doesn’t bother me at all that all of our cases will go to 

civilian judges and the military and the Central Intelligence Agency has to prove to a civilian court that these people are dangerous 

and they’re part of the enemy. Once that’s been done, then I think 

it’s crazy just to arbitrarily say you have to let them go. If our intelligence community, upon a periodic annual review believes that 

they present a danger to this country, I think it would be crazy to 

say you have to let them go, because you don’t under the law of 

armed conflict. 

Just to end, Senator Udall, we need a hybrid system. We need 

civilian judges involved in this war because it’s a war without end. 

As the President said last week, there will never be a definable end 

to this war. An enemy combatant determination can be a de facto 

life sentence. I don’t want to put people in a dark hole forever. I 

want them to have a way forward based on their own conduct. 

Some of them will be able to get out of jail because they’ve rehabilitated themselves and some of them may in fact die in jail. But I 

want it to be a process that’s not arbitrary, that’s not based on a 

politician saying so, but a collaborative process with an independent judiciary legitimizing our actions. 

I think that’s what this country has been lacking and that’s what 

we need to go forward. That’s not being soft on terrorism. That’s 

applying American values to this war. 

Chairman LEVIN. Thank you. 

Senator Reed. 

Senator REED. Thank you. 

This has been a very thoughtful discussion. There’s been a discussion about the value of trying everyone in a military tribunal, 

military commission, or trying people in civilian courts. I think, 

just for the record, that there is a value to trying some of these inVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
42 

dividuals in civilian courts because they are criminals, and because 

when they try to claim a mantle of warrior, that is feeding into 

their appeal out in the greater Islamic world, but in fact they’re 

criminals. They have committed premeditated murder. In that situation, if we can mount a case effectively in court, we should not 

only do that, but they should be not only convicted, but also identified as criminals, not as soldiers, not as warriors, etcetera. 

There are other cases where, captured on the battlefield or because of practical considerations, a military tribunal will work. I 

just wonder, Admiral MacDonald, as a uniformed officer do you 

have a reaction to that? 

Admiral MACDONALD. Senator, I guess my only point would be 

this, I think we need at the end of the day to have full faith and 

confidence that what we’re creating in this bill is a fair and just 

process. I am sensitive, too, that there may be situations where 

going to an Article III court, going to Federal court, may be the 

right decision, given the facts and circumstances that exist in a 

case. 

I think it’s absolutely vital that when we leave here at the end 

of the day it’s not because we believe that what we’ve created is 

a second class legal system. We need to look at this, that this can 

stand alone in the world and we are willing to be judged by what 

we’re putting together today. That’s my only point, is that you 

ought to feel very comfortable sending anybody to these commissions process with these changes because we believe it’s a fair and 

just system. 

Senator REED. The ultimate test would be if an American service 

man or service woman were subject to these procedures we would 

consider them to be appropriate. 

Admiral MACDONALD. Yes, Senator. 

Senator REED. Thank you. 

Chairman LEVIN. Thank you. 

I will just conclude by saying what our bill does not address, does 

not purport to decide or address. One, we do not decide whether 

a person, who’s going to be tried, is tried by an Article III court 

or a military commission. We’ve been told there’s going to be some 

of each for various reasons. We do not make that decision in this 

bill at all, don’t try to, don’t purport to. 

Second, we do not address the question of where a trial takes 

place. That is not addressed in this bill. 

Third, what we do is address the procedures that would apply 

where there are military commission trials. It’s pretty obvious to 

me as chairman that those procedures will apply regardless of 

where the military commission is held. There can’t be any difference in the way we write a bill on that. I disagree with the suggestion that somehow or other it will make a difference in terms 

of a court ruling, Supreme Court or otherwise, as to whether or not 

a military commission proceeding is held in the United States or 

in Guantanamo. I just, as a lawyer, cannot imagine the Supreme 

Court or any other court saying, well, this commission was held in 

one place, therefore one rule, constitutional rule, applies; if it were 

held in another place, a different constitutional rule applies. 

Given what the court has decided in Boumediene and what the 

court has decided in Hamdan, I just can’t imagine there would be 

43 

any difference in that decision, whether trial court or Supreme 

Court, as to where this military commission proceeding took place. 

Finally, on the voluntariness issue, hopefully we can come up 

with some common language on that. But in any event, we have 

language in the bill which incorporates the requirements of the Geneva Conventions in terms of coercion, in terms of whether or not 

a statement can be used against a defendant. 

Thank you all very much for your wonderful testimony here. 

Your very carefully thought out testimony will be made part of the 

record. We’ll have some additional questions for the record, and 

we’ll now move to our second panel. [Pause.] 

On the second panel we have three distinguished experts on military commissions from outside of the government. You’re our outside panel. 

First, Rear Admiral John Hutson capped a distinguished 27-year 

career as a Navy lawyer, serving as the Judge Advocate General 

of the Navy from 1997 to 2000. He is currently Dean and President 

of the Franklin Pierce Law Center. 

Second, retired Major General John Altenburg completed a 28- 

year career as an Army lawyer, serving as Assistant Judge Advocate General of the Army from 1997 to 2001, and as the first Appointing Authority for Military Commissions from 2003 to 2006. 

Finally, Daniel Marcus served as General Counsel of the 9/11 

Commission, after spending a number of years in the White House 

Counsel’s Office and DOJ. He now teaches national security law 

and constitutional law at the Washington College of Law at American University. 

Gentlemen, we thank you. We didn’t give you much notice about 

this hearing. It’s a very important hearing and we greatly appreciate your attendance and the work that you put in all your lives 

for this Nation. 

Admiral Hutson, we’ll start with you. 

STATEMENT OF RADM JOHN D. HUTSON, USN (RET.), FORMER 

JUDGE ADVOCATE GENERAL OF THE NAVY 

Admiral HUTSON. Thank you, Mr. Chairman. I very much appreciate this opportunity. The honor and privilege is not lost on me. 

I’ll be brief. We don’t ask DOJ to fight our wars and I think we 

shouldn’t ask DOD to prosecute our terrorists. I respectfully disagree with Senator Martinez. I think that they are criminals and 

they ought to be treated as such, and to somehow elevate them to 

the status of, say, Major Andre I think is inappropriate. 

I have two concerns particularly. One is that right now the U.S. 

military is, if not the most highly respected institution in the 

United States, it’s certainly among the very top. There are a couple 

of reasons for this. One is that the military carefully restricts itself 

to its primary mission, which is to fight and win our wars, to provide the time and the space necessary for the real solutions, social, 

cultural, religious and otherwise, to take place. Then, once that 

mission is limited to warfighting, the military does that very, very 

well, just as DOJ prosecutes criminals very, very well. 

The other aspect for me is that DOJ has scores of experienced 

prosecutors, decades of precedent and experience, lots of judges, 

and great credibility, justifiable credibility in this area, that DOD 

44 

simply doesn’t have. DOD personnel policy is to rotate people every 

2, 3, or 4 years. They will never ever get the experience that Federal prosecutors have or that Federal judges have. 

I think we’re missing an opportunity to display the greatest judicial system on the face of the Earth, to shout it from the rooftops. 

Rather than doing that, we’re sort of hiding it under a bushel and 

bringing out the uniformed service persons. I admire and am proud 

of the job that they do, but it’s simply not the primary responsibility of DOD or the U.S. military or the Armed Forces to perform 

that function, and I’d rather see it where it should be, in the very 

capable hands of DOJ. 

Thank you, sir. 

[The prepared statement of Admiral Hutson follows:] 

PREPARED STATEMENT BY RADM JOHN D. HUTSON, USN (RET.) 

I am the Dean and President of the Franklin Pierce Law Center. I served as a 

Judge Advocate in the United States Navy from 1973–2000 and as the Judge Advocate General of the Navy from 1997–2000. I am very aware of the honor and privilege of testifying before this committee on the matter of military commissions. I 

thank the committee for this opportunity. 

Even greater than democracy itself, the greatest export of all from the United 

States is justice. Daniel Webster once said, ‘‘Justice, sir, is the greatest interest of 

man on Earth. It’s the ligament which holds civilized beings and civilized nations 

together.’’ But Justice is fragile and easily disparaged. It must be nurtured and handled with great care. 

I was an early and ardent supporter of military commissions. Initially, I was 

drawn to their historical precedents and, more importantly, I was confident that the 

United States Armed Forces could and would conduct fair trials even of reprehensible defendants. My own experience gained during 28 years in the Navy and our 

long history of providing due process while trying our own military personnel in 

courts-martial gave me this confidence. 

Unfortunately, as it turned out, the commissions that were created did not live 

up to the traditions of the Uniform Code of Military Justice (UCMJ). Predictably, 

they became a significant distraction for the military. I hasten to add that this was 

in spite of the stalwart, honorable effort of many, many military personnel themselves. Indeed, that is one of the great tragedies of this saga, and largely makes one 

of the points that I wish to underline. 

The primary role of the military is to fight and win our Nation’s wars or, stated 

more precisely, to provide the time and space necessary for real solutions—economic, cultural, social, religious—to take place. Prosecution of miscreants is an occasionally necessary sidebar to that mission but shouldn’t distract from it. We have 

the UCMJ and the military court-martial system to expedite the legitimate role of 

the military, not interfere with it. 

If a sailor on a ship is alleged to have committed a crime, we must expeditiously 

and fairly resolve that problem. Otherwise, it can fester and interfere with unit cohesion and impede an effective fighting force. The UCMJ and the Manual for Courts 

Martial serve that purpose alone. They solve problems for the armed forces; not create them. Our recent history with military commissions has been the opposite. I’ve 

come to realize that even a perfect commission regime would be a distraction for 

the military. It’s simply not part of its mission. I am very concerned when the military is called upon to perform functions outside of its core mission even when I’m 

confident that it can do it well. Preserving and ensuring justice in the United States 

is the primary mission of the Department of Justice (DOJ), not the Department of 

Defense (DOD). 

If there will be criticism of our prosecution of alleged terrorists—and there will 

be—DOJ and the U.S. Federal Court system are equipped to deal with that criticism. Indeed, it is part of their responsibility to face it, address it, and resolve it. 

Notably, the criticism will come not only from critics outside the judicial process 

such as the media, foreign allies and enemies, and domestic commentators but also 

from the legitimate appeal process. Some of the criticism may actually be justified 

or, at least, defensible. There is no reason in law or logic for the military to be the 

target of that. Convictions from military commissions will be appealed until Dooms 

Day just because of the forum of the conviction. Federal courts are impervious to 

that. 

45 

It is decidedly not the responsibility of DOD or the U.S. military to deal with criticism of such prosecutions. It would, in fact, be detrimental to the military mission. 

There are valid and important reasons why our military is the most highly respected institution in America. One of them certainly is that the military limits 

itself to its mission and performs that mission very well. Taking on duties outside 

of that core mission on an ongoing basis will surely undermine the public’s confidence in the military . . . and divert important resources, human and otherwise, 

from that mission in order to take on the new one. 

We already have proof of this. Besides being a distraction to the vital mission of 

DOD, military commissions have, to a large extent, become a discredit in spite of 

the valiant and highly credible efforts of many, many people in uniform. Rather 

than showcasing the military justice system of which we all are justifiably proud, 

commissions represent something else entirely. They have not worked often or well. 

‘‘Fixing’’ them would help, but won’t eliminate undeserved but inevitable criticism. 

On the other hand, during the same period, U.S. District Courts have successfully 

prosecuted literally hundreds of terrorists who now reside in Federal prisons around 

the country, keeping all Americans safer. Federal courts, including judges, prosecutors, marshals, and other court personnel have decades of experience in these cases. 

They have developed a justifiable and universally held reputation for fairness, and 

consequently, they are largely immune to criticism. 

There is also now a large body of law that has been developed over the years in 

the Federal court system. It would take an equal number of cases and decades of 

trials for DOD to match the Federal precedent contained in the Federal Reporters. 

Military judges, prosecutors, and defense counsel rotate out of one assignment 

into another every 3 years or so. Without significant changes to longstanding DOD 

personnel policy, none of them will ever, ever gain the experience in these cases that 

is enjoyed by scores of their civilian Federal counterparts. We could do that, we 

could change longstanding DOD personnel policy but again, if we did we would have 

the tail of terrorist prosecutions wagging the warfighting dog. 

It is not only unnecessary, it is inappropriate for DOD to operate a system of justice in parallel to DOJ. The UCMJ and the courts-martial it creates are absolutely 

necessary to ensure our effective fighting force. But for some of the same reasons 

that the Posse Comitatus Act prevents the military from enforcing laws against U.S. 

civilians, we should resist the temptation of using the military to prosecute foreign 

criminals when DOJ can perform that critical function quite well. 

Let us not forget, these are not legitimate warfighters. They are common criminals. They are thugs, cowards who target innocent civilians. We should treat them 

as such and not elevate their status to that of legitimate enemies. They don’t belong 

in the same category as Major Andre or the German saboteurs. 

We don’t ask DOJ to fight wars. We shouldn’t ask DOD to prosecute terrorists. 

If the point of this exercise is to create a court system that will ensure convictions 

of alleged terrorists against whom we don’t have sufficient admissible evidence, then 

we have missed the point. You can’t have a legitimate court unless you are willing 

to risk an acquittal. If you aren’t willing to accept the possibility that a jury will 

acquit the accused based on the evidence fairly presented, then it isn’t really a 

court. It’s a charade. 

The corollary to that is that you can’t have a real court if the rules of evidence 

and procedure are so stacked against the defendant that he has no real chance to 

present his case or defend against the government’s case. The admissible evidence 

against him based on the facts may be so overwhelming that conviction is assured 

but that must be the consequence of facts, not rules of evidence tilted in favor of 

the prosecution. 

Over the years, Federal courts have displayed remarkable ingenuity, flexibility, 

and resourcefulness in prosecuting terrorists. The Federal Rules of Evidence and 

Procedure are sufficiently adaptable to accommodate the vagaries of trying those individuals who are captured overseas by military personnel in the midst of performing military operations. I believe the image of the ‘‘strategic corporal’’ having 

to give Miranda warnings after risking his life to break into the bunker is a red 

herring. 

If you as members of this committee believe or suspect that the Federal Rule of 

Evidence or the Federal Rules of Criminal Procedure should be amended to accommodate certain cases and situations, it is preferable to superimpose modest new 

rules on an extant, tried and true judicial system than to create a whole new system—particularly in light of recent efforts. 

It might be wise to set up a task force of experienced judges, prosecutors, and defense counsel to make recommendations to Congress in this regard. 

However, if we create yet another military commission system that ‘‘contains all 

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46 

quired by Common Article III of the Geneva Conventions, then we have essentially 

duplicated our own Federal courts. There is no logical reason to create a system that 

mirrors one already in existence and is functioning so well. We should strive for the 

minimum change necessary to accomplish the purpose, not a wholesale change to 

an already effectively functioning system. 

Clearly and undeniably, the administration and this committee are dedicated to 

untying this Gordian knot in a way that serves the very best interest of the country. 

We are now operating under the Military Commission Act of 2006 which many find 

to be badly flawed. I very much respect and admire your effort to improve it. My 

recommendation, however, is to repeal it rather than improve it. In the process, I 

urge you to express this body’s preference to prosecute alleged terrorists in Federal 

court and thereby demonstrate to the world, friend and foe alike, what kind of Justice the United States wishes to export. 

Chairman LEVIN. Thank you, Admiral, very much. 

General Altenburg. 

STATEMENT OF MG JOHN D. ALTENBURG, JR., USA (RET.), 

FORMER APPOINTING AUTHORITY FOR MILITARY COMMISSIONS 

General ALTENBURG. Thank you, Chairman Levin and members 

of the committee. 

Military commissions are an appropriate, long validated, constitutional mechanism for law of war violations. Military commissions have always adapted to both the operational needs of the particular conflict and to the then-existing state of criminal law. 

This proposed statute tracks the current state of criminal law in 

its most important respects and codifies or incorporates advanced 

thinking in criminal law since the 1940s use of commissions by the 

United States. This is true, especially in areas such as hearsay and 

self-incrimination, including the reliability concern that the Supreme Court has emphasized in the last 50 years. 

Our military in the 21st century fights in a more complex manner. This means that Congress must forthrightly acknowledge how 

this complexity impacts military commissions. This includes evidence gathered by intelligence personnel, not just conventional 

forces, operations and places and under circumstances that would 

not serve our security, diplomatic posture, or stability of other nations to be made public. In addition, confronting an enemy of uncommon ruthlessness and ability to reach anywhere, at any time, 

making personal security of participants in the investigative and 

trial process an especially sensitive and appropriate consideration. 

I applaud the efforts of the committee in proposing this amendment to the MCA. I think that there are several reasons why these 

people should be prosecuted at military commissions, among them 

the fact that we’re prosecuting them for war crimes and not violations of Title 18. They may have also committed violations of Title 

18, but we’re prosecuting them for war crimes. 

It is a part of the Commander in Chief’s authority to prosecute 

war criminals during a war and just after a war. It serves as a deterrent to others. Sometimes we use the word ‘‘UCMJ’’ and we act 

like it’s just court-martial and that military commissions are different. The UCMJ includes four tribunals. Court-martials are the 

one we’re most familiar with and therefore oftentimes we shorthand and say ‘‘UCMJ’’ when we mean courts-martial. 

But military commissions have been around for a couple hundred 

years and courts of inquiry for well over 100 years, and the provoso 

47 

courts are the least used. I think that’s an important distinction 

that we should all keep in mind. 

I would ask the same question that a couple of Senators have 

asked in response to my colleagues’ comments, and that is, why 

would we apply domestic criminal law due process for alien unlawful belligerents who’ve abandoned all civility and respect for international law? 

Just two things that I’d like to comment on that I think need to 

be addressed. One is, that I believe, because the Service courts 

have the experience of the factfinding role, the experience and the 

expertise honed over years and years, that a more appropriate 

place for the intermediate appeal would be the existing Court of 

Military Commissions Review and not the CAAF. The CAAF I’m 

sure, as an earlier speaker mentioned, certainly has the expertise 

to do the factfinding role. I just think it’s better placed with the 

military appellate judges because of their experience in that regard. I think it would be somewhat onerous to place that on the 

CAAF. Their experience is with criminal law for the most part. 

Military criminal law is very similar to domestic criminal law, and 

we’re now into an area of law of war, something that’s fairly arcane, in dealing with these types of crimes. 

The other thing that I think needs to be addressed is the issue 

of the death penalty. It’s somewhat ambiguous in the MCA, and I’ll 

just kind of state the scenario. If a detainee wants to plead guilty 

to a capital offense, he can do that. But the way the MCA is written, it says that he has to be found guilty by a jury, guilty by commissions. There’s a way to wordsmith that to make sure that it’s 

very clear and that we don’t spend hours and days litigating at the 

military commissions proceedings whether he really can do that 

and exactly what that means. I’d be happy to submit that in additional comments or in response to questions as to what proposed 

language it would be. It would just make it very clear, because I 

know that prosecutors and defense lawyers and judges are trying 

to grapple with that, because some people want to plead guilty to 

a capital offense. Of course, they want to be a martyr for their 

cause and that’s another discussion. I think that it should be possible for them to plead guilty to a capital offense and then be sentenced by the court. 

Thank you, sir. 

[The prepared statement of General Altenberg follows:] 

PREPARED STATEMENT BY MG JOHN D. ALTENBURG, JR., USA (RET.) 

Chairman Levin, Ranking Member McCain, other distinguished members of the 

Committee, thank you for this opportunity to discuss Military Commissions, the 

Military Commissions Act, and proposed amendments to the Military Commissions 

Act, 2006. Military Commissions are an appropriate, long-validated, Constitutional 

mechanism for Law of War violations. U.S. Military Commissions have always 

adapted to both the operational needs of the particular conflict, and to the then existing state of criminal law. 

This proposed amendment tracks the current state of criminal law in its most important respects, and codifies or incorporates advanced thinking in domestic and 

international law since President Roosevelt’s World War II military commissions, 

endorsed by the Supreme Court in United States v. Quirin. These advances are most 

notable in areas such as hearsay and self-incrimination, including the reliability 

concerns that the Supreme Court has emphasized since the Military Commissions 

of the 1940s. 

48 

As our Nation fights in a more complex manner, Congress must in the 21st century give Military Commissions the tools to adapt to 21st century opponents. This 

means that Congress must forthrightly acknowledge how this complexity affects our 

Nation’s ability to bring war criminals to justice—including through the long validated process of military commissions. Concrete areas that require careful integration of the truth-seeking function of a system of justice with the realities of 

warfighting include evidence gathered by combat and intelligence personnel and 

Special Operations Forces; operations in places and under circumstances that would 

not serve our security, diplomatic posture, or the stability of other nations if made 

public; and confronting an enemy of uncommon ruthlessness with the ability to 

reach anywhere at any time, making personal security of participants in the investigative and trial process an especially sensitive and appropriate consideration. 

Military commissions historically have been a singular forum, repeatedly recognized by statute, international law, and Supreme Court decisions as an incident of 

war, not arising from the judicial power of the United States, but firmly within the 

power and authority of a military commander as authorized by Congress. This distinction is anything but academic; it is the seminal point from which flowed post2001 misunderstandings of military commissions. 

Historical validity aside, the necessity of military commissions in the current conflict has been occluded by: (1) the decades during which they were not deemed by 

a military commander to have been necessary for a particular conflict or set of circumstances (we did not use commissions during the Korean or Vietnam conflicts); 

and (2) the unprecedented evolution in criminal procedure and evidence seen during 

those decades, which complicated the setting in a way that policy makers failed to 

recognize in drafting the President’s Military Order of November 13, 2001. 

The proposed amendment to the Military Commission Act may successfully culminate a process that began in October 2004 in the Office of Military Commissions. 

Several government lawyers, military and former military, worked diligently to create a proposed Uniform Code of Military Justice amendment (Article 135a) and a 

proposed Manual for Military Commissions. The product of nearly an entire year’s 

work by Brigadier General Tom Hemingway, Michael Chapman, Kevin Carter, Ronald White, Colonel Lee Deneke, Colonel Wendy Kelly, Colonel Patricia Wildermuth, 

and Mary Alice Kovac was presented for approval by appropriate authority in August 2005. If approved and implemented, many believe it would have made more 

likely a Supreme Court decision favorable to the government in the Hamdan case. 

The proposed Article 135a and Manual for Military Commissions were not favorably 

considered. The Supreme Court’s decision in Hamdan led directly to the Military 

Commissions Act. The proposed amendment will finally produce Military Commissions procedures that meet all Law of Armed Conflict standards and exceed International Law standards for war crimes trials. 

Unprivileged belligerent is a better term, in my opinion, than enemy combatant. 

The proposed definition, in section 948a(7)(a) now also includes those who engage 

in hostilities against our coalition partners. This as well is a positive change. 

Section 948c says that ‘‘any unprivileged enemy belligerent having engaged in 

hostilities or having supported hostilities against the United States is subject to 

Military Commissions.’’ This language seems somewhat inconsistent with 948a(7) 

language that defines unprivileged enemy belligerent as one who ‘‘purposefully and 

material supports hostilities.’’ More important, 948a(7)(b) defines unprivileged 

enemy belligerents as those who ‘‘purposefully and materially support hostilities,’’ 

which is more expansive and useful and appropriate language, in my view. 

I consider the language authorizing a military commission to determine its own 

jurisdiction to be an improvement as well. 

Regarding self incrimination, the focus on ‘‘reliability’’ is welcome, but it cannot 

be the sole touchstone without at least some clarification. Such statements are routinely admitted into evidence in both Federal district court and courts-martial. 

Therefore Congress may want to consider modifying the proposed language so that 

either side can introduce statements for reasons other than their truth. I recommend language that considers the totality of the circumstances in determining 

whether the statement is reliable for the purpose for which it is offered. 

The hearsay provisions of the proposed legislation are a substantial improvement, 

as they balance the truth-seeking function of the right to confront evidence against 

an accused with the realities of the modern battlefield and especially the protracted 

nature of the post-September 11 conflicts. There remain some potential refinements 

in this area. The amendment seems to assume that all statements are taken by government agents, which is frequently true, but not always the case. Sometimes ‘‘rank 

hearsay,’’ including statements from one detainee to or about another may be offered; the defense likely requires more flexibility in this regard than does the government. 

49 

Most important, the rule should state clearly the threshold requirement that the 

military judge determine, under the totality of the circumstances, that a statement 

is reliable for the purpose for which it is offered. The proposed bill is not explicit 

regarding this factor. The proposed amendment says also that the necessary predicate is witness unavailability. This may lead to extensive litigation regarding what 

constitutes unavailability. There may be times when justice is served if it’s a material fact (an appropriate requirement) and in the interests of justice. Where reliability is a required consideration, then the judge has more than adequate guidance 

for making fair and appropriate determinations of admissibility. 

The section 949j discovery language is more broad than that governing Article III 

courts. The disclosure obligation for witness statements is ‘‘as soon as practicable’’ 

compared to the traditional (Federal) practice of disclosing when the witness testifies. It’s not clear why we would want military commissions to deviate from the Federal standard, which is frequently espoused by military commission critics. I propose 

language along the lines of requiring disclosure a ‘‘reasonable time before the witness testifies’’. This proposed language is closer to the court-martial norm without 

unduly burdening the prosecution’s discovery responsibility. 

More significant is determining what is government evidence and how accountable the prosecutors must be when as a practical matter they don’t know the universe of available evidence, and not all organs of government share the prosecutors’ 

interest in trying the cases. The prosecution arm of the government is, no doubt, 

comfortable with bearing some of the burden here—but other government agencies 

may need statutory inducement to produce evidence in a timely manner. Still, section (b)(4), says, ‘‘the disclosure obligations under this subsection encompass evidence that is known or reasonably should be known to any government officials who 

participated in the investigation and prosecution of the case. . .’’ 

I recommend replacing ‘‘and’’ after ‘‘investigation’’ and before ‘‘prosecution’’ with 

‘‘or’’—to be clear that prosecutors must examine only that which they possess or are 

able to access. In short, prosecutors must have access to the evidence before they 

can be held accountable for its examination and production. This reflects the unique 

context of combat operations evidence collection, which is not accomplished by police 

investigators and crime scene experts who pass it to forensic experts through elaborate, precise custody systems. Rather, it is most frequently collected by riflemen or 

intelligence operatives whose priorities are safeguarding themselves and others 

while collecting information that may assist their fight against an enemy determined to kill them and others. The potential for its subsequent use as evidence in 

a criminal trial is not the paramount basis for its collection at the time. This goes 

to the heart of why alleged war crimes should be tried by military commissions that 

meet or exceed all Law of Armed Conflict and other International Law standards. 

The burden must be on the government, but the legislation must be realistic in its 

burden, recognizing that multiple organs of the government collect, analyze, and 

store evidence, often for other than law enforcement purposes. 

Regarding supervision of counsel, it may be appropriate, based on experience 

since 2006, to add to Section 949b(a)(2)(C) the following language: ‘‘This does not 

preclude the exercise of appropriate supervisory authority over trial or defense counsel.’’ 

Section 949j (pg. 32): codifies what has been the practice in that the Military 

Judge can authorize the Trial Counsel to provide redacted or unclassified summaries of documents to the defense. 

The current statute says that Geneva Conventions are not a ‘‘source of rights’’ 

that detainees may invoke, but the new bill says that the Geneva Conventions may 

not be invoked as a basis for a ‘‘private cause of action.’’ The intent seems to be 

that an accused may not base a civil claim on a Geneva violation, but still permit 

him to base trial motions on asserted Geneva violations. This may be an untenable 

threading of the needle because it may well expose the government to liability in 

areas other than Military Commissions. When in other realms individuals, including 

non-citizens, claim that Geneva or other treaties, traditionally considered not to be 

self-executing, form a basis for trial-level relief or in any way are considered to 

grant personal rights rather than binding the government of the United States. 

The proposed amendment retains the apparent contradiction of the Military Commissions Act that allows one to plead guilty to a capital offense but prohibits sentencing to death unless the accused is found guilty by the 12 member commission. 

I propose the following language be inserted in the proposed amendment: ‘‘In order 

to be sentenced to death the accused must have been found guilty by commission 

of members or have plead guilty and been found guilty by a military judge.’’ This 

language should eliminate the confusion inherent in the Military Commissions Act. 

More important, the proposed amendment does not retain the Military Commissions 

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50 

ment under ‘‘this chapter’’ or Law of War. Furthermore, the amendments should 

provide a mechanism for an accused to plead guilty and choose to be sentenced by 

the Military Judge alone, as is the standard in court-martial practice. 

I recommend that the appellate process delineated in the 2006 Military Commissions Act be retained in the proposed legislation rather than naming the Court of 

Appeals for the Armed Forces as the intermediate appellate court. The Court of 

Military Commissions Review has functioned well since its establishment in the 

Military Commissions Act. The judges who populate this court from the Service 

Courts of Criminal Appeals have extensive experience in the factfinding role. The 

service appellate courts are unique in United States jurisprudence because of their 

factfinding authority. If we are to include the same factfinding power we provide 

for soldiers at the intermediate appellate court then we should ensure that the intermediate court is one with the expertise and experience to exercise that function. 

The proposed amendment says to assign defense counsel ‘‘as soon as practicable’’. 

This is conventionally assumed to be at charging by the Prosecution, consistent with 

military and most public defender practices. But there needs to be some flexibility 

by which Chief Defense Counsel can appoint defense counsel earlier—so that, in appropriate cases there can be charging negotiations that are beneficial to both the 

defense and the prosecution. Chief Defense Counsel authority to appoint defense 

counsel earlier than the charging stage should be limited to occasions that respond 

to requests from the Chief Prosecutor. 

The amendment retains provisions that imply that an accused has the option not 

to appear in court, as section 949a lists presence at trial as a ‘‘right’’ of the accused. 

I believe this provision frustrates both the delivery of effective justice and the appearance of justice, which we hope confidently to portray to the accused, our Nation, 

and the world, whose scrutiny we should welcome. I recognize that requiring an accused to appear may lead to disruptive behavior in court. There are provisions to 

remove the accused if the behavior disrupts the process. The decision whether or 

not the accused remains in court after such disruptive conduct should be left to the 

judge; there should be no ‘‘opt out’’ by which the judge permits an accused, perhaps 

weary or in protest, not to appear at a session of court. 

The proposed amendment addresses the right to ‘‘suppress’’ evidence. I recommend that more appropriate language would be to ‘‘exclude’’ evidence from the 

factfinder or sentencing authority as a sanction for illegal conduct by the government. 

It is encouraging to see Congress actively engaged in improving military commissions. There now seems to be a greater understanding that we—as a Nation—are 

challenged by a Law of War problem rather than a matter to be addressed solely 

by domestic criminal law. Military commissions historically represented an advance 

in the law—a civilizing, judicial measure, rooted in the due process of the Western 

legal tradition and the principles of restraint, discrimination, and accountability of 

the maturing Law of Armed Conflict. I recognize that the proposed amendments are 

intended to foster those traditions. In making fine changes to a system that is functional and just, we must be mindful that commissions stand on a distinct legal footing not because they are a ‘‘lesser’’ form of justice, but because they are uniquely 

able to bring justice in light of factors unique to how we, a nation of laws, defend 

our freedoms, and fight and win our Nation’s wars. 

Chairman LEVIN. Thank you very much. 

Mr. Marcus. 

STATEMENT OF DANIEL MARCUS, FELLOW IN LAW AND GOVERNMENT, WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY 

Mr. MARCUS. Thank you, Mr. Chairman. I appreciate the opportunity to testify today. 

I do believe there is a role for Article III courts in some cases 

involving some of the Guantanamo detainees and some of the other 

individuals who’ve been treated as enemy combatants at one time 

or another since September 11. I believe our Article III courts have 

shown themselves able to effectively try terrorists in Federal courts 

in the Moussaoui case, the Padilla cases, and some of the earlier 

cases. 

51 

For example, someone like Padilla or someone like al-Marri, who 

was arrested by law enforcement authorities in the United States, 

far from the traditional battlefield, is an appropriate candidate for 

Article III criminal prosecution. 

I notice that one of the Guantanamo detainees was recently 

transferred to the Federal court system and will be tried in the 

Southern District of New York in connection with crimes connected 

with the bombing of the East Africa embassies in 1998. I think he 

is also an appropriate candidate for an Article III court because it’s 

not clear that he’s appropriately treated by a military tribunal 

since his acts were committed at a time when we arguably were 

not at war with al Qaeda in a strict military sense. 

I do believe that, while the Federal courts can try many terrorism cases, there are a lot of terrorism cases involving the Guantanamo detainees that would be difficult, not impossible but difficult, to try in a Federal court. I think that an improved military 

commissions system is an appropriate way of trying these defendants. 

I think this committee’s bill takes major steps toward perfecting 

the existing military commission system, which was already improved significantly by the MCA. But I do think there are some additional steps that could be taken and I’ve outlined some of those 

in my testimony. 

[The prepared statement of Mr. Marcus follows:] 

PREPARED STATEMENT BY DANIEL MARCUS

Chairman Levin, Senator McCain, and other members of the committee: Thank 

you for inviting me to testify on one of the most important of the difficult set of 

issues facing Congress and the Administration with respect to the detainees held 

at Guantanamo Bay: In what forum should detainees who are believed to have committed war crimes be tried—Article III courts, courts-martial, or military commissions? 

Unlike my colleagues on this panel, I am not an expert on military justice. But 

as a Government official and a law professor, I have been following these issues 

closely for the last six years—first, as General Counsel of the 9/11 Commission, and 

since 2005, teaching National Security Law and Constitutional Law at the Washington College of Law, American University. Before that, I was for many years a 

partner in the law firm of Wilmer, Cutler & Pickering, and I served in the White 

House Counsel’s Office and in several positions at the Department of Justice, including Associate Attorney General, from 1998–2001. 

The questions surrounding detention and trial of the Guantanamo detainees have 

become more complicated than they looked in late 2001 and early 2002, when the 

first detainees were captured in Afghanistan and sent to Guantanamo. In the wake 

of the September 11 attacks, Congress had quickly enacted the Authorization to Use 

Military Force (AUMF), essentially authorizing the President to conduct an armed 

conflict against al Qaeda and the Taliban. Pursuant to the AUMF, the President 

had sent thousands of U.S. troops to Afghanistan to depose the Taliban as the de 

facto government of Afghanistan and to capture or kill the al Qaeda fighters and 

leadership. While the opponents in this armed conflict were not nation-states, the 

conflict seemed very much like a traditional armed conflict or ‘‘war.’’ 

In the years since then, however, we have come to the realization that this is a 

different kind of war that is not so easy to define or limit, territorially or temporally. While the traditional battlefield is in Afghanistan (and to some extent, arguably, the adjacent western border areas of Pakistan to which al Qaeda and the 

Taliban have fled), al Qaeda continues to operate in other parts of the world, either 

directly or through other, loosely affiliated organizations. It has become clear that 

this conflict is one of indefinite duration, which will not end with a truce or surrender. Finally, we have learned that even on the Afghanistan battlefield itself, it 

is not nearly as easy as in traditional wars against uniformed members of regular 

armed forces to determine who is and is not an enemy combatant. 

52 

These problems have been compounded, in my view, by some serious mistakes 

and over-reaching by the last administration in the years immediately following the 

September 11 attacks—the reliance on strained legal arguments to minimize or 

avoid entirely the application of the Geneva Conventions and the Convention 

Against Torture; the effort to deny the Guantanamo detainees any opportunity to 

challenge the determination that they were enemy combatants; and the creation of 

a system of military commissions that almost no-one outside the Administration believed provided anything close to a fair process for trying detainees for war crimes. 

This last mistake has delayed for years bringing the Guantanamo detainees to justice for their crimes. 

Thanks largely to the Supreme Court and Congress (in the Detainee Treatment 

Act and the Military Commissions Act (MCA)), there has been significant progress 

in correcting these mistakes and providing a legal process for the detainees that can 

be defended as consistent with the basic principles of our military and civilian justice systems. But more remains to be done, and there are important decisions that 

this Congress and this Administration still have to make. I congratulate this committee for taking the initiative in addressing these issues. 

So, where should we go from here with respect to trials of the detainees? Some 

argue for abandoning the military justice model (if not the entire law of war paradigm) and prosecuting the detainees only in Article III district courts (or perhaps 

some new special national security court staffed by Article III judges). I believe 

there is a role for Article III courts in some types of cases and that our U.S. district 

courts—in cases such as Moussaoui and Padilla—have shown themselves capable 

of trying major terrorism cases. I also believe that it is inappropriate to use military 

tribunals to try U.S. citizens (such as Padilla) or others lawfully in the United 

States (such as al-Marri) who are arrested by law enforcement authorities in the 

United States, far from any traditional battlefield. The same is true for some of the 

Guantanamo detainees who were captured, not in Afghanistan, but in countries 

such as Bosnia or Algeria, and whose alleged crimes are unrelated to the events of 

September 11 or the war in Afghanistan. A good example is Ahmed Khalfan 

Ghailani, who was recently transferred from Guantanamo to a Federal prison in 

New York for trial in U.S. District Court on charges arising out of his alleged participation in the bombing of the U.S. embassies in East Africa in 1998. He is 

charged with a very serious terrorist act, but not one properly regarded as a war 

crime triable by a military commission or court-martial. 

I have become convinced, moreover, that while the Federal courts can try many 

terrorism cases, there are some cases in which it would be very difficult to try 

Guantanamo detainees in Federal court. Of course, I am not privy to the evidence 

that the Government has gathered with respect to any detainee. But I gather that 

there are two main reasons why it is difficult to try some detainees in Federal court: 

First, in some cases the key evidence of guilt is statements of the defendant that 

could not be introduced in Federal court because they were made without prior Miranda warnings or were the ‘‘fruit of the poisonous tree’’ of coerced statements. Of 

course, some of these statements would not be admissible under the MCA or this 

committee’s bill, but a significant number would. 

Second, and perhaps more important, the more public nature of trials in Federal 

court—where it is extremely rare to close any proceedings to the public—and the 

hearsay rules that apply in Federal courts make it very difficult to conduct a trial 

involving certain kinds of highly sensitive national security information. The prime 

example of this is where important evidence against the detainee is from an intelligence source whose identity cannot be made public. These difficulties are also 

present, to a large extent, with court-martial trials. Under the MCA as it would be 

amended by this committee’s bill, however, and under changes in military commission procedures already adopted by the new administration, some hearsay evidence 

found reliable by the presiding judge could be admitted. And the greater flexibility 

that the military judge has to close portions of a military commission trial (with the 

defendant and his counsel still present) will enable the fair presentation of more 

sensitive national security information. 

I was initially of the view that it would be preferable to try all detainees by courtmartial (or in Article III courts)—not because I thought military commissions could 

not be conducted in a fair manner that adequately protected the rights of defendants, but because I thought that the original military commission regime that was 

held unlawful by the Supreme Court in its 2006 Hamdan decision had given military commissions such a bad image around the world that we ought to choose some 

other forum to try the detainees. But I have become convinced that an improved 

system of military commissions, while not the ideal choice, is the best—or perhaps 

one should say the least worst—of the alternatives before us for trying many of the 

detainees. 

53 

In opting for an improved military commission system, I am also influenced by 

the interrelationship of this issue with the very difficult issue of indefinite or preventive detention of those detainees who cannot be tried or safely released. President Obama came into office, it appears, hoping that we could not only close Guantanamo, but also try (and convict) or release all the Guantanamo detainees. It seems 

likely, however, that the administration will conclude that this cannot be done—that 

because of evidentiary problems and national security sensitivities, there will be 

some ‘‘guilty’’ and dangerous detainees who cannot be tried in any forum and who 

therefore should continue to be detained under the law of armed conflict (with periodic court review and additional safeguards). Such a longer-term detention system 

may be necessary, but it is certainly undesirable from a civil liberties standpoint. 

One reason I conclude that improved military commissions are our best option for 

trying many detainees is that I believe it will result in more detainees being tried, 

thus reducing the number of detainees who continue to be detained without trial. 

Finally, let me list some of the important ways that the commission system established by the MCA can and should be improved, bringing it closer to the standards 

of courts-martial. (Some of these are already addressed in the committee’s bill.): 

• The overbroad definition of ‘‘enemy combatant’’ should be narrowed to be 

more consistent with the law of armed conflict and the traditional battlefield concept. 

• The list of offenses triable by military commissions should be revisited, 

to assure that it can be defended as consistent with the law of armed conflict. In particular, a fresh look should be taken at whether ‘‘material support of terrorism’’ and conspiracy can be deemed war crimes. 

• Hearsay evidence should be admissible under more limited circumstances, with the burden on the prosecution to establish the reliability 

of the evidence. 

• Statements obtained as a result of all cruel, inhuman, or degrading treatment, regardless of when that treatment took place, should be excluded. 

Only statements that meet basic standards of voluntariness should be admitted. 

• There should be more robust requirements for disclosure by the prosecution of potentially exculpatory and mitigating evidence to the defense. 

• The reviewing court (whether it is the Court of Appeals for the Armed 

Forces or the Court of Appeals for the District of Columbia Circuit) should 

have full appellate authority to review the military commission’s judgment 

and findings, comparable to that of a Federal court of appeals reviewing a 

district court judgment of conviction. 

• Habeas actions should be available to defendants in military commission 

cases to the same extent that they are available to court-martial defendants. 

Thank you for the opportunity to testify. I would be happy to answer your questions. 

Chairman LEVIN. Thank you very much, Mr. Marcus. 

Why is it difficult to try some of or most of the Guantanamo detainees in Article III courts? 

Mr. MARCUS. I think there are two main reasons and I think 

they were adverted to in the testimony of the first panel. There are 

some Federal court rules with respect to admissibility of statements. The Miranda rules, for example, the fruit of the poisonous 

tree doctrine, that would make it difficult to admit some statements by detainees that should be admitted as reliable, voluntary 

statements under all the circumstances. 

I think I would associate myself with the very interesting dialogue between DOJ and DOD representatives and Admiral MacDonald about the issue of voluntary statements and the ‘‘all of the 

circumstances’’ test. I would align myself with Mr. Johnson and 

Mr. Kris and with the administration, that I think we need a totality of the circumstances test, but it has to be anchored to voluntariness. I do think the principle in our system that confessions should 

be admitted only if they are voluntary is a very important constitutional and policy principle and we ought to adhere to it. I think it 

54 

may well be possible, as you and Senator Graham have suggested, 

to work out some language between that of the committee’s bill 

that would satisfy these concerns, but I haven’t seen the administration’s language. 

The second reason I think is that in military commissions it will 

be easier to close proceedings to handle classified evidence and to 

handle sensitive national security issues. Obviously we don’t want 

completely closed proceedings, but I think there’s more flexibility in 

the military commissions system to ensure that we can get the national security information that we need to convict these guys without compromising national security. 

Chairman LEVIN. General Altenburg, why do we need military 

commissions? Go to some of the practicalities? Then I’m going to 

ask you, Admiral, to comment on their testimony. 

General ALTENBURG. Senator Levin, we don’t need military commissions unless we want to prosecute some of these people. We can 

just detain the people who we captured on the battlefield and have 

discussions and debates with international legal scholars about, 

what does this 21st century non-state actor paradigm mean for the 

right under the Geneva Convention to detain people you’ve captured until the war is over if you can’t really define when the war 

is over. You’re not capturing territory, there’s no capital to get, so 

forth and so on. 

We can just detain them and not worry about it. 

Chairman LEVIN. Why is it desirable from a practical perspective? 

General ALTENBURG. First of all, it’s desirable because we can 

show the American people just how bad these people are and also 

we can show the international community just how bad these people are. 

The reason we have to have military commissions is, quite frankly, some of these people can’t be tried in Article III courts. There’s 

just not the evidence to try in Article III courts. My own view is 

that alien, unprivileged belligerents captured on the battlefield 

should not be entitled to the constitutional protections that American citizens have. I don’t think we should settle for some secondrate system, but in my mind the MCA together with what you’ve 

put together in the last few weeks exceeds all international standards. It certainly exceeds anything that’s being done at The Hague. 

One of the great failings several years ago in our government 

was in failing to educate the public as to what the standards are 

and what is at stake that the law of war applies. Instead, critics 

have been able to define the terms of the debate and the debate 

has been framed in the context of domestic criminal law. That’s not 

what the debate should have been about. There were many issues 

to debate—How do you tell when the war is over? What do we do 

about non-state actors? How do we characterize them? There were 

lots of things to debate. 

Senator, I know you’ve probably heard before the comment that 

throughout the Vietnam war the U.S. Government’s position was 

consistent with regard to the people that were captured and kept 

by the North Vietnamese. That position was: You take care of 

them. Even though you’re not a signatory to the Geneva ConvenVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
55 

tions, we expect you to treat them with dignity and respect. When 

the war is over, you will return them to us. 

The U.S. Government, Democratic and Republican, never said: 

When do they get a lawyer? When do they get a trial? How can you 

hold them? This isn’t fair. That was never an issue. We never 

heard anybody 7 or 8 years ago talking about that and educating 

our public that that’s what the standard should be, and not domestic criminal law. 

Chairman LEVIN. General, you’ve said that these procedures as 

we’ve drafted them exceed the procedures at The Hague in terms 

of protection for people. You’ve also indicated that you have a couple suggestions that you’ve made relative to our language. Other 

than those two suggestions, do you believe this is the right direction for us to go as we’ve drafted it? 

General ALTENBURG. Yes, Senator I do. 

Chairman LEVIN. Now, Admiral Hutson, let me put the question 

to you a little more precisely. We’ve had witnesses, not just today 

but long before today, that point to the implausibility of some of 

the procedures being provided to detainees. These include Miranda 

warnings to prisoners that are captured in the course of hostilities, 

the impracticability of documenting the chain of custody for physical evidence collected on the battlefield, and the difficulties posed 

by the need to use highly sensitive national security information, 

including evidence from intelligence sources whose identity cannot 

be made public. 

Tell us why is it not appropriate to use military commissions, 

providing those commissions meet the standards that the Supreme 

Court has set out in Hamdan? 

Admiral HUTSON. Mr. Chairman, I’m not sure that it is inappropriate to use military commissions. I’m only suggesting that I think 

that the much better avenue is to use the tried and true U.S. district court system, the Federal system, that has tried many, many, 

many terrorists quite successfully over the years. I think fundamentally what this debate comes down to for me is that I think 

I have more faith in the flexibility and adaptability of the Federal 

courts than others perhaps have. 

Miranda is a judge-made law. The word ‘‘Miranda’’ is no place in 

the Constitution. Voluntariness has a place in the Constitution. I 

think that U.S. district courts are going to be fundamentally capable of dealing with the vagaries of those issues, and they are not 

going to, as somebody suggested earlier, require the soldier to give 

Miranda rights after he breaks down the door and holds somebody 

at gunpoint. That’s not the mission. It’s not a law enforcement mission. At that point it’s not an intelligence-gathering mission. That’s 

all part of the war. 

I don’t think that the Federal Rules of Evidence or the Federal 

Rules of Criminal Procedure are going to require that. Now, if I am 

wrong about that I would urge that this committee—and the Judiciary Committee I suspect would have a dog in that fight—might 

want to look at those rules and make modest changes to the extent 

you feel it’s necessary, rather than creating this whole parallel system, because this whole parallel system to the extent it complies 

with Common Article III and provides all the judicial guarantees 

considered to be indispensable by civilized people, then we’ve dupliVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6602 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
56 

cated to a large extent the Federal court system and there’s just 

no reason to do that. 

Moreover, I think you lose a lot of expertise and experience and 

precedent. You’re going to bring down on the shoulders of the U.S. 

Armed Forces a lot of criticism, because we’ve tried this twice before and just as surely as God made little green apples, this process 

is going to be criticized. Fairly or unfairly, it’s going to be criticized 

by appellate lawyers, by media, by critics. 

The military doesn’t need it. DOJ won’t have to endure it. We’ll 

end up with the world being preoccupied not with the crimes of the 

terrorists, but with the perceived alleged deficiencies in our system. 

I’d just rather use the system that’s out there and has worked so 

well over the years. 

Chairman LEVIN. I think a parallel system has existed for a long 

time. This is not a creation of a parallel system. 

Senator Graham. 

Senator GRAHAM. Admiral Hutson, I have a lot of respect for you 

and we’ve had a lot of debates about this, but I’m going to be very 

blunt with you. On July 12, 2006, you came before the House and 

the Senate and you urged us to use the UCMJ as the model, and 

you said: ‘‘I was an early supporter of the concept of military commissions and their use in the war on terror. I believed then and 

I still believe now that they are historically grounded and the proper forum to prosecute alleged terrorists.’’ You submitted to the committee changes to the UCMJ that you thought were practical. 

What’s changed? 

Admiral HUTSON. I think I was an early supporter of military 

commissions, before we actually put flesh on the bones. I was convinced in those days, quite frankly, that if you populated commissions with people like John Altenburg they were going to fly, it was 

going to be great. As it turned out, they weren’t. We have been 

here now for how many years, and we’ve tried two cases. 

Senator GRAHAM. Yes, but my point is that you said that the 

UCMJ should be the starting point and that you believed that the 

military system was a sound way to try terrorists, and you suggested to Congress that you would deviate from the UCMJ, but 

only when necessary. Quite frankly, I agree with you. I do not 

agree with you now when you say that we should abandon the military commission as an option. I do believe, as the other two witnesses have indicated, that it has a very strong role to play in this 

fight we’re in, and historically it’s been used in the past. 

I would like to submit, Mr. Chairman, the testimony of Admiral 

Hutson from July 12, 2006, to the House. 

Chairman LEVIN. That’ll be received. 

[The information referred to follows:] 

57 


707ful1.eps
58 


707ful2.eps
59 

Senator GRAHAM. I don’t want to belabor the point. What we’re 

trying to do is find a way to make the commissions as effective as 

possible. Let’s get back to this idea about what Senator Reed said, 

who is a dear friend, if we looked at every detainee as a common 

criminal. Mr. Marcus, as a domestic crime, what legal theory would 

we have to hold someone indefinitely if they were all viewed as a 

domestic criminal law prism? How could you do that? 

Mr. MARCUS. Senator, I don’t think there is any existing authority. I’m not sure there should be. 

Senator GRAHAM. Mr. Chairman, it would be the biggest mistake 

this country could make, to use the criminal model, but yet still 

hold people indefinitely without trial. I do not believe that is a 

choice we have to make, but if we’re going to view these people as 

common criminals across the board, then we’ve lost the ability to 

use military law, which would allow detention. Do you agree, if you 

use the law of armed conflict you could detain someone indefinitely? 

Mr. MARCUS. Yes, I do, Senator, subject to the caveat of Justice 

O’Connor’s opinion in the Hamdi case, saving the issue of forever. 

Senator GRAHAM. General Altenburg, in the Hamdi case Justice 

O’Connor said you have to have something akin to Article 5 under 

the Geneva Convention to make the initial determination. Under 

the Geneva Convention, all that’s required under Article 5 to determine status is an independent tribunal; is that correct? 

General ALTENBURG. Yes. 

Senator GRAHAM. In the battlefield world that could be one person. Is that right, Admiral Hutson? 

Admiral HUTSON. Yes, I think that’s right. 

General ALTENBURG. Senator, under the Geneva Convention 

that’s true. The United States, however, has implemented it so that 

it requires three officers. You cannot, for example, use just one officer. 

Senator GRAHAM. Okay, so it’s a three-officer decision. The point 

I’m trying to make is that I don’t want to use the Article 5 dynamic 

because, Admiral Hutson, you said before, this is a war without 

end. We’re going to need something new. It goes back to Senator 

Udall’s statement, we have to come up with a hybrid system. 

For those people that we’re not going to try or be able to try, 

we’re going to have to do something beyond Article 5. That’s where 


707ful3.eps
60 

I think civilian courts under habeas play a very important role. I 

want to make sure we preserve that. 

Admiral HUTSON. I think we’ve already, in some respects, made 

a decision that they’re criminals, in the sense that we’re prosecuting them in the first place. First of all, I don’t think you have 

to make the choice of prosecuting them or holding them. If you 

want to hold them, you can hold them. 

Senator GRAHAM. Under what theory? 

Admiral HUTSON. Under the theory that they are prisoners presumably caught in the war. But in World War II, in Korea, and in 

Vietnam, we didn’t prosecute Hitler’s driver. 

Senator GRAHAM. Right. 

Admiral HUTSON. We held him if we had him, until the cessation 

of the hostilities. 

Putting aside Khalid Sheikh Mohammed and people like that, 

once you decided that you’re going to prosecute somebody like 

Hicks, you’ve already in my mind made the decision that he’s a 

criminal. 

Senator GRAHAM. A criminal under the law of armed conflict. 

The point I’m trying to make is that domestic criminal law applied 

to the detainee population would not allow this Nation to honorably 

hold someone indefinitely. Do you all agree with that? 

General ALTENBURG. I do. 

Admiral HUTSON. I do, yes, sir. 

Mr. MARCUS. Yes, sir. 

Senator GRAHAM. Do any of you doubt that some of the people 

being held at Guantanamo Bay, if released tomorrow, would go 

back to killing Americans? 

General ALTENBURG. I agree with that statement. 

Senator GRAHAM. Admiral Hutson? 

Admiral HUTSON. I haven’t looked at their files, but it’s certainly 

possible. I would presume that would be the case. 

Senator GRAHAM. I’ll just end with this, Mr. Chairman. I want 

to compliment this committee. I think you have taken a very reasoned approach to military commissions. They’re historically valid. 

The Supreme Court has told us how they should be formed. What 

we are doing with this bill, in my opinion, is setting a standard beyond what international law would require if they were brought to 

The Hague and is something the Nation can be proud of. I don’t 

think we’ve weakened ourselves at all. I think the extra process 

that we’re providing these detainees will confer a legitimacy to the 

trials that is necessary for us to win this war. I think we’re very 

close to producing a product the Nation can be proud of, and I’ve 

enjoyed working with you. 

Chairman LEVIN. Thank you very much, Senator Graham, for all 

the energy and effort and experience that you’ve put into this effort. It’s been invaluable. 

Senator Begich. 

Senator BEGICH. Mr. Chairman, thank you very much. Thank 

you, Mr. Chairman and Senator Graham, for your work on this. 

I have some clarification questions. Admiral Hutson, I’m following up on what Senator Graham said. In 2006 you made some 

comments in regards to the commission and the concept of the commission with some recommendations. Then in your explanation 

61 

that you just gave you indicated you supported the concept if it 

would have had certain people on it, and then you kind of stopped 

there in your explanation. 

I’m trying to find out the difference from then to now, so I understand. Then I have another follow-up for you. 

Admiral HUTSON. I think the difference is time. We can’t walk 

that cat back. We’ve tried this twice. It’s been roundly criticized. 

I very much admire the work that this committee has done with 

this proposed legislation. The question is what do we get out at the 

other end of the process, and I have to say that I’ve changed my 

mind. I’ve come to believe that the Federal courts have demonstrated over the years their ability to do this. 

As I said before, I worry about the criticism that it’s going to 

bring on the military. We’re asking the military to try to be the organization responsible for prosecuting the worst criminals, among 

the worst criminals in our Nation’s history. That’s just not part of 

DOD’s mission. I think it’s a distraction that is unnecessary, given 

the fact that we have this well-regarded DOJ and Federal court 

system. 

Senator BEGICH. Let me ask you this. First a comment. I don’t 

worry too much about criticism for DOD or others. It’s life. No matter what you make, in decisions you’re going to get criticized for 

something, even if you do something that you think is very well intended. That’s the way life is and I think DOD has withstood criticism on many fronts over the decades and I’m not too worried 

about that. That shouldn’t be a reason why we design policy, if 

you’re going to get criticized or not. 

Do you then believe that all detainees should go through the 

Federal court system and there should be no commission of this 

kind or any element of this? When I say ‘‘this,’’ in this situation 

that we’re in now or any future situation in any conflict? 

Admiral HUTSON. I was gratified when I heard Jeh Johnson 

say—although not everybody was—that there was an administration preference for Article III courts. I’m not saying that I can’t 

conceive of a situation in which the military commission would be 

appropriate. I don’t see these terrorists or the alleged terrorists as 

being warriors or combatants. I see them as being criminals and 

thugs that sort of mindlessly and heedlessly commit war crimes. I’d 

prosecute them as criminals. 

Senator BEGICH. I want to make sure we’re on the same page 

with what I’m hearing and what you’re saying. That is, in this situation the commission is not necessarily the best idea. You did not 

rule out that in other conflicts in the future a commission may not 

be a bad idea. 

Admiral HUTSON. No, absolutely. 

Senator BEGICH. Then why not just set it up now? Let’s just do 

it. Your earlier argument was we’ve tried this, gone down this path 

twice, and it didn’t work, and you kind of wrote it off. Now you’ve 

said that it’s okay maybe in the future with some other conflict, 

that may not be determined yet. Why not just set it up? We have 

a good format now. Let’s just do it. 

Admiral HUTSON. I didn’t want to get into that because it’s not 

a bad argument. Just once I’ve set it up I wouldn’t use it unless 

we’re talking about Himmler and Goering. 

62 

Senator BEGICH. My thought on this is—and I have listened to 

the chairman explain this to me in a variety of ways, most recently 

in one of our committee meetings—I’m convinced that it seems to 

be a logical approach. I’m struggling on your rationale why it isn’t 

in this situation. I guess I would just respectfully disagree. But I 

appreciate your comments. 

To the other two, I don’t know if you have any comments. I’m 

just trying to get clarification. I don’t know if you two have any additional comments. 

Mr. MARCUS. I would just say it’s an interesting dialogue. There 

is a real debate as to whether we should treat the situation we’re 

in as an armed conflict or whether we should treat it as a law enforcement, criminal law matter. I think Congress made the decision 

in September 2001 to treat this as an armed conflict, to authorize 

the President to use military force. 

As I said in my prepared statement, we do have to take account 

of the fact that this is not a traditional war and that’s why I think 

the committee has taken some steps, by changing the definition of 

‘‘enemy combatant,’’ ‘‘unlawful enemy combatant,’’ from the way it 

was in the MCA, to try to limit the scope of the armed conflict approach to this. 

I think as long as we’re in an armed conflict authorized by Congress it’s appropriate to use the military justice system to prosecute 

people for war crimes. 

Senator BEGICH. Thank you very much. 

General? 

General ALTENBURG. Senator, I think that the fact that we cherish our military and what our military does for this country traditionally, and especially today, can lead us astray in trying to ennoble all people that are warriors or consider themselves warriors 

around the world. There’s lots of bad soldiers in lots of countries 

and they’re still protected by the law of war and they’re still treated as soldiers. 

My good friend Dean Hutson I think misses the mark a little bit 

when he talks about how he doesn’t want to give them credit for 

that or he doesn’t want to somehow ennoble them by considering 

them warriors. He’s right that they’re criminals. They’re war criminals. He’s right that they should be disparaged and that they’re 

despicable and all of that. But still, based on what they’ve done, 

they have made themselves into soldiers and they made themselves 

into, quite frankly, a formidable enemy of this country. That’s why 

I think that the use of military commissions and the use of military 

law is not only consistent, but paramount and should be used. 

I agree that the Article III courts where they can be used may 

be appropriate, especially where you have Title 18 offenses and you 

don’t have war crimes. I think it’s an important tool for this government and that they should use military commissions in the context of this war. 

Senator BEGICH. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LEVIN. Thank you very much, Senator Begich. 

I think Senator Begich’s point is a critical one here, that, regardless of whether or not people think that most or all of the detainees 

should be tried in Article III courts, we’re not addressing that issue 

63 

in this legislation. We are trying to reform our military commission 

law so that it passes muster in the Supreme Court. That’s our goal. 

We’re not deciding here where people would be tried, whether 

Guantanamo or here. We’re not deciding whether or not they be 

tried by military commission or Article III courts. What we are 

doing is what I think everybody really wants us to do, including 

you, Admiral, which is to have procedures here which will pass 

muster. You very forthrightly acknowledged in your answer to Senator Begich, I thought, exactly that point. That’s what our goal is 

here. 

It can be argued elsewhere about Guantanamo or here. If you’re 

going to have Article III trials, you clearly have to have those trials 

here in the United States, whether it’s 10 percent, 30 percent, 70 

percent. Whatever the percent is of people held in Guantanamo, 

you cannot empanel juries for Article III crimes down in Guantanamo. It’s not practical to do it. 

There’s many reasons why we have to reform these procedures 

so that they pass muster and we’re going to continue to make that 

effort. 

We thank the three of you for your contribution to that effort. 

You have differences of opinion, obviously, but they’re all valuable 

to us. If there are any suggested changes in the language that you 

have specifically, other than the ones that you may have addressed 

here today, feel free to get those to us this week for the record because we’re going to be taking this bill to the floor next week. 

We also have a written statement that’s been presented to the 

committee from Professor David Glazer, Loyola Law School in L.A.; 

an article prepared by retired Federal Judge Patricia Wald for the 

National Institute of Military Justice. These materials will also be 

included in the record. 

[The information referred to follows:] 

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Chairman LEVIN. Any additional questions, Senator Begich? 

Senator BEGICH. No, thank you. 

Chairman LEVIN. If not, again with our thanks, we will stand adjourned. 

[Questions for the record with answers supplied follow:] 

QUESTIONS SUBMITTED BY SENATOR DANIEL K. AKAKA

HEARSAY EVIDENCE

1. Senator AKAKA. Mr. Johnson and Mr. Kris, President Obama announced recently, on May 15, 2009, that he will revive the military commission system to prosVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB

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ecute Guantanamo (GTMO) detainees. Prior to the President’s announcement, it 

was reported that the administration had expressed concerns that obstacles could 

be raised by Federal judges to prevent the prosecution of some of the Guantanamo 

detainees, specifically by barring the use of hearsay evidence gathered by intelligence agencies and the prosecution of detainees who had been subjected to harsh 

interrogation methods. Are the administration’s reported concerns valid? 

Mr. JOHNSON. Pursuant to Executive Order 13492, we have assembled an interagency team of personnel who are carefully reviewing each detainee’s file to assess 

whether or not prosecution is feasible. To date, our team has reviewed over half of 

the cases, and a significant number of them have been referred to a joint Department of Justice (DOJ) and Department of Defense (DOD) prosecution team for potential prosecution in either civilian court or military commission. There are a number of factors that go into the decision as to the best forum for prosecution, which 

are detailed in the attached protocol (see Annex A) that has been agreed to by DOJ 

and DOD. As the President has made clear, we do not intend to rely on any statements obtained through torture or cruel, inhuman, or degrading treatment. Admission of hearsay will have to meet the hearsay standards applicable in Federal courts 

or military commissions. See, e.g., Fed. R. Evid. 801–807; § 949a(b)(3) of section 

1031 of the 2010 National Defense Authorization Act (NDAA) (passed the Senate 

on July 23, 2009). 

Mr. KRIS. Pursuant to Executive Order 13492, we have assembled an interagency 

team of personnel who are carefully reviewing each detainee’s files to assess whether or not prosecution is feasible. To date, our team has reviewed over half of the 

cases, and a significant number of them have been referred to a joint DOJ and DOD 

prosecution team for potential prosecution in either civilian court or military commission. There are a number of factors that go into the decision as to the best forum 

for prosecution, which are detailed in the attached protocol (see Annex A) that has 

been agreed to by DOJ and DOD. As the President has made clear, we do not intend 

to rely on any statements obtained through torture or cruel, inhuman, or degrading 

treatment. Admission of hearsay will have to meet the hearsay standards applicable 

in Federal courts or military commissions. See, e.g., Fed. R. Evid. 801–807; 

§ 949a(b)(3) of section 1031 of the 2010 NDAA (passed the Senate on July 23, 2009). 

POST-TRIAL

2. Senator AKAKA. Mr. Johnson and Mr. Kris, if the Federal Government’s ability 

to prosecute the detainees is constrained, and the detainees are set free because 

they are either acquitted or never put on trial, will the detainees be able, as some 

have asserted, to settle anywhere in the Nation and presumably continue to plot to 

do harm to its citizens and institutions? 

Mr. JOHNSON. No. We intend to use all lawful and appropriate means to protect 

the American people. As the President stated in his National Archives address on 

May 21, 2009, although we are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country, there may ultimately 

be a category of Guantanamo detainees ‘‘who cannot be prosecuted for past crimes,’’ 

but ‘‘who nonetheless pose a threat to the security of the United States’’ and ‘‘in 

effect, remain at war with the United States.’’ For the detainees at Guantanamo, 

the President has stated that ‘‘[w]e must have clear, defensible, and lawful standards’’ and ‘‘a thorough process of periodic review, so that any prolonged detention 

is carefully evaluated and justified.’’ Any such detention will be based on authorization from Congress, i.e., the 2001 Authorization for Use of Military Force (AUMF). 

As the Supreme Court held in Hamdi v. Rumsfeld, 542 U.S. 507 (2005), and as the 

administration has explained in its filings in recent habeas cases, the detention authority Congress has conferred under the AUMF should be informed by the laws of 

war, which have long permitted detention of enemy forces for the duration of the 

armed conflict to ensure that they do not return to the fight. 

Mr. KRIS. No. We intend to use all lawful and appropriate means to protect the 

American people. As the President stated in his National Archives address on May 

21, 2009, although we are going to exhaust every avenue that we have to prosecute 

those at Guantanamo who pose a danger to our country, there may ultimately be 

a category of Guantanamo detainees ‘‘who cannot be prosecuted for past crimes,’’ but 

‘‘who nonetheless pose a threat to the security of the United States’’ and ‘‘in effect, 

remain at war with the United States.’’ For the detainees at Guantanamo, the 

President has stated that ‘‘[w]e must have clear, defensible, and lawful standards’’ 

and ‘‘a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.’’ Any such detention will be based on authorization 

from Congress, i.e., the 2001 AUMF. As the Supreme Court held in Hamdi v. RumsVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
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feld, 542 U.S. 507 (2005), and as the administration has explained in its filings in 

recent habeas cases. the detention authority Congress has conferred under the 

AUMF should be informed by the laws of war, which have long permitted detention 

of enemy forces for the duration of the armed conflict to ensure that they do not 

return to the fight. 

3. Senator AKAKA. Mr. Johnson and Mr. Kris, will a detainee who is either acquitted or not put on trial go straight from the chambers of a Federal judge to that of 

an immigration judge? 

Mr. JOHNSON. We intend to use all lawful and appropriate means to protect the 

American people. The authority to detain individuals under the immigration laws 

pending their removal from the United States, particularly where they pose a threat 

to national security, is one (but only one) mechanism that may be relied upon, if 

necessary, to ensure that detainees will not endanger our citizens. 

Mr. KRIS. We intend to use all lawful and appropriate means to protect the American people. The authority to detain individuals under the immigration laws pending their removal from the United States, particularly where they pose a threat to 

national security, is one (but only one) mechanism that may be relied upon, if necessary, to ensure that detainees will not endanger our citizens. 

QUESTIONS SUBMITTED BY SENATOR JOHN MCCAIN

OVERVIEW OF MILITARY COMMISSIONS

4. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, I have a long record expressing my support for 

military commissions as the correct forum for trying detainees for alleged violations 

of the law of war. That said, trials under the system established by Congress in the 

fall of 2006 have not gone forward rapidly and there have been a number of issues 

in implementing the system that have led to delays. Are military commissions a viable forum for trying detainees alleged to have committed war crimes? 

Mr. JOHNSON. Yes. As the President indicated in his May 21 National Archives 

speech, reformed military commissions should be available for prosecuting law of 

war violations. We appreciate that the Senate, on a bipartisan basis, has undertaken the initiative to reform military commissions by amending the Military Commissions Act (MCA) of 2006, and section 1031 of the 2010 NDAA passed by the Senate on July 23 identifies many of the key elements we believe are important to further improve the military commissions process. We are confident that through close 

cooperation between the administration and Congress, reformed military commissions can emerge as a fully legitimate and sustainable forum. 

Mr. KRIS. Yes. As the President indicated in his May 21 National Archives speech, 

reformed military commissions should be available for prosecuting law of war violations. We appreciate that the Senate, on a bipartisan basis, has undertaken the initiative to reform military commissions by amending the MCA of 2006, and section 

1031 of the 2010 NDAA passed by the Senate on July 23 identifies many of the key 

elements we believe are important to further improve the military commissions 

process. We are confident that through close cooperation between the administration 

and Congress, reformed military commissions can emerge as a fully legitimate and 

sustainable forum. 

Admiral MACDONALD. Yes Senator; in my personal view Military Commissions are 

a viable and necessary forum for trying detainees alleged to have committed war 

crimes. I believe that the Military Commissions rule changes recently implemented 

within the executive branch and the statutory changes now under consideration in 

Congress will improve the Military Commissions process. However, I also believe 

that we need to fully invest resources—fiscal and personnel—to ensure that Military 

Commissions go forward in the interests of justice. In my view, this is our last and 

best opportunity to implement a Military Commissions system that will promote respect for the laws of war and provide justice for the innocent victims of war; while 

also affording accused war criminals the judicial guarantees that are recognized as 

being indispensible to civilized peoples. 

Admiral HUTSON. They are in theory but have not been in practice. Unfortunately, 

we are now at a point where they would not be seen as being legitimate by most 

observers even if they are revamped and improved. 

General ALTENBURG. Yes. 

Mr. MARCUS. Military commissions, with improved procedures that the Committee 

has under consideration, are a viable forum for trying many of the GTMO detainees 

for war crimes. In some cases, however, Federal courts are a more appropriate 

82 

forum—e.g., where detainees are prosecuted for crimes committed before September 

11, 2001. 

5. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, what have been the major reasons why military commission trials have taken so long? 

Mr. JOHNSON. Only three commission cases have been completed to date. There 

are several explanations for this, including the Supreme Court decision in Hamdan 

v. Rumsfeld, 548 U.S. 557 (2006) (see Annex C), which necessitated a restart of the 

process (including dismissal and refiling of all charges), resourcing issues with respect to full-time agents, paralegals, attorneys, and military judges, and the need 

for travel to and from the trial location at GTMO. 

We are working to ensure that adequate resources are devoted to the commission 

process—for prosecution, defense and judicial functions—so that any commission 

proceedings will be fair, thorough and efficient. 

Mr. KRIS. Only three commission cases have been completed to date. There are 

several explanations for this, including the Supreme Court decision in Hamdan v. 

Rumsfeld, 548 U.S. 557 (2006) (see Annex C), which necessitated a restart of the 

process (including dismissal and refiling of all charges), resourcing issues with respect to full-time agents, paralegals, attorneys, and military judges, and the need 

for travel to and from the trial location at GTMO. 

We are working to ensure that adequate resources are devoted to the commission 

process—for prosecution, defense, and judicial functions—so that any commission 

proceedings will be fair, thorough, and efficient. 

Admiral MACDONALD. In my personal view, the delay has been caused by a combination of factors, including flaws in the original Commissions Order and its implementing rules of evidence and procedure; defects in structure and organization; 

shortcomings in fiscal and personnel investment at both the investigative and trial 

level; legal uncertainty stemming from Habeas litigation and in particular the aftermath of the Hamdan decision, which essentially required a reset of the entire process; and finally, the unique nature of the enemy we face—a worldwide network of 

non-State actors who, by definition, choose terrorism and reject the fundamental notion that the means and methods of warfare must be limited, by law and humanity, 

to protect the innocent, prevent unnecessary suffering, and promote a just and lasting peace. This new type of war has presented complex legal and policy challenges 

to the political branches of our Government and the Courts. 

Admiral HUTSON. We initially tried to reverse engineer the process by starting at 

‘‘conviction’’ and work backward to ensure that result. That didn’t work but we 

weren’t willing to start fresh and create a system that would work. 

General ALTENBURG. Implementing regulations for the MCA were not completed 

until April, 2007. At that time the convening authority began referring cases to 

trial. Three cases were completed in 2008, and at least three more would have been 

completed in 2009 if the new administration had not directed a halt to the proceedings. U.S. v. Khadr was set for trial in January 2009 (witness travel was scheduled for Inauguration weekend); U.S. v. al Darbi was set for July, 2009; and U.S. 

v. Ghalaini was set for September 2009. Numerous other cases were approaching 

trial, including the trial of the five September 11-related detainees. About 20 cases 

had been charged, and the prosecution intentionally withheld charging cases between November and January to avoid the appearance of manipulating the commission process. All of the cases referred to Military Commissions involve complex 

criminal litigation for which timelines of 1–2 years would be common in Article III 

courts. The novelty of the new MCA necessarily added time to the initial cases as 

the legality of the forum and its procedures were properly, repeatedly, and creatively challenged by defense attorneys. It is important to remember in this context 

that it took the Article III courts nearly 5 years to complete the prosecution of 

Zacharias Moussaoui; that case was ultimately resolved by a guilty plea. 

Mr. MARCUS. The main reason for the unfortunate delay in bringing detainees to 

trial for war crimes was the last administration’s creation of a commission system 

that was woefully lacking in fundamental fairness. This led to litigation challenging 

the legality of the commission system that resulted in the Supreme Court’s Hamdan 

decision and Congress’s subsequent enactment of the MCA of 2006. While the MCA 

improved the procedures substantially, experience since then has shown, as the 

committee has recognized, that additional procedural improvements are needed. 

6. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, have the issues contributing to delays involved 

the MCA itself, policy decisions implementing it, or other issues such as resources 

83 

provided to prosecutors and defense counsel, and the difficulties raised by the 

amount of classified evidence? 

Mr. JOHNSON. Please see the answer to question 5. Additionally, we believe that 

the proposed amendments in section 1031 concerning classified evidence will make 

commissions proceedings more efficient. 

Mr. KRIS. Please see the answer to question 5. Additionally, we believe that the 

proposed amendments in section 1031 concerning classified evidence will make commissions proceedings more efficient. 

Admiral MACDONALD. Please see my previous answer. With regard to the volume 

of classified evidence, although it has resulted in some delay, that factor is not significant, in my view, compared to the factors mentioned in my preceding answer. 

Admiral HUTSON. I think all of those factors have contributed to the delays. 

General ALTENBURG. I do not believe lack of resources has significantly delayed 

the proceedings. There have been delays in providing relevant discovery to the defense, largely created by the policies of the intelligence agencies; e.g., classifying all 

statements by High Value Detainees as TS/SCI when they obviously contain no national security information, and reluctance by the intelligence agencies to provide 

necessary discovery to properly cleared defense counsel. These issues generate 

lengthy litigation before the Military Judges. At the time the Executive order stayed 

military commissions, DOD had not only substantially increased staffing for both 

prosecution and defense, but also had given the Chief Prosecutor and Chief Defense 

Counsel the discretion to approve or disapprove JAG candidates offered to them by 

the Services. This screening process greatly improved the overall experience level 

and quality of counsel being assigned to commissions. 

Mr. MARCUS. See answer to question 5. I am not in a position to comment on resource issues. There is no question that the problems of dealing with classified evidence have contributed to delays, requiring difficult choices for prosecutors as to 

what charges to bring. 

7. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, what aspects of the MCA would you highlight 

as issues that should be reviewed or changed in terms of fairness and efficiency? 

Mr. JOHNSON. As this committee has recognized on a bipartisan basis, commissions and the MCA should be reformed. In May, the administration announced five 

changes to the rules for military commissions that we believe go a long way towards 

improving the process. We appreciate that the Senate, on a bipartisan basis, has 

further undertaken the initiative to reform military commissions by amending the 

MCA of 2006, and section 1031 of the 2010 NDAA passed by the Senate on July 

23 identifies many of the key elements we believe are important to further improve 

the military commissions process. There are additional modifications we would like 

to see to the Senate bill, and we are working with Congress and staff on these modifications. Specifically, the administration proposes the following: 

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Mr. KRIS. As this committee has recognized on a bipartisan basis, commissions 

and the MCA should be reformed. In May, the administration announced five 

changes to the rules for military commissions that we believe go a long way towards 

improving the process. We appreciate that the Senate, on a bipartisan basis, has 

further undertaken the initiative to reform military commissions by amending the 

MCA of 2006, and section 1031 of the 2010 NDAA passed by the Senate on July 

23 identifies many of the key elements we believe are important to further improve 

the military commissions process. There are additional modifications we would like 

to see to the Senate bill, and we are working with Congress and staff on these modifications. Specifically, the administration proposes the following: 


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Admiral MACDONALD. There are three areas of the MCA that, in my view, should 

be reviewed further: Appellate review standards, classified information procedures, 

and the admissibility of statements made by an accused. Before providing my recommendations on these three areas, I would like to offer the following information 

by way of background. 


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The MCA and the rules initially promulgated thereunder contained provisions 

which were questioned in terms of both fairness and efficiency. The hearsay rule 

that placed the burden of establishing unreliability on the opponent was roundly 

criticized as forcing an opponent to establish a negative, and was the reverse of the 

standard generally recognized in domestic courts, where the proponent of any evidence generally must establish it is sufficiently reliable for admission. The standards for discovery were generally considered insufficient, in that the rules required 

disclosure of exculpatory evidence, but left unaddressed evidence that might mitigate the degree of guilt or the sentence of the accused or that might serve to impeach a government witness. The provisions addressing classified evidence permitted a military judge to determine reliability of underlying evidence, and redact 

classified sources and methods, preventing a defense counsel from obtaining even 

a substitute for the redacted materials. Counsel rights for the accused did not provide for a right to a military counsel of the accused’s own selection, if reasonably 

available. Commissions were forbidden from determining whether a particular accused was subject to the jurisdiction of the commissions, instead forced to rely upon 

a determination made by the Combat Status Review Tribunal (CSRT). Appellate review was not as robust as that provided in courts-martial, limiting review to only 

legal review rather than factual and legal review, as is the norm for courts-martial. 

The rules regarding coerced statements contained the facially offensive provision 

that would permit the introduction of statements obtained by cruel, inhuman or degrading treatment so long as the statement was obtained before the enactment of 

the Detainee Treatment Act, and so long as the statement was reliable and in the 

interests of justice. Finally the rules addressing classified information failed to provide clear guidance to military judges and practitioners regarding the standards for 

discovery and the procedures to be used in obtaining ex parte review of petitions 

from the government. The rules governing classified information have no clear analogue in either courts-martial or Article III courts, depriving commissions of the 

benefit of the jurisprudence that exists under established norms in either courtsmartial or district courts. Without such clear guidance, counsel have been unable 

to obtain ex parte hearings to expedite the resolution of classified information 

issues, and have had to seek multiple protective orders to ensure all information, 

regardless of source, is properly protected. 

In May, the President forwarded five rule changes for the commissions that became effective in July, which addressed the above issues with the exception of the 

appellate review standards and the handling of classified information. I recommend 

that the appellate review standards mirror those found in courts-martial, vesting 

the reviewing court at the first level of appellate review with factual sufficiency authority. I also recommend that the classified information rules be altered, relying 

on the Classified Information Procedures Act (CIPA) as a touchstone for starting the 

draft, incorporating the lessons learned from commissions to date, and those provisions of MRE 505 that permit closure of the proceedings when warranted. Counsel 

and military judges will then have the benefit of more than 20 years of jurisprudence from CIPA application to guide the use of the rules. 

With regard to statements made by an accused, as I testified, I support an admissibility standard based on reliability, the interests of justice, the realities of the battlefield on the one hand, and voluntariness, when statements are obtained appropriately removed in time and distance from the battlefield on the other. To that end, 

I propose the following language: 

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Admiral HUTSON. Key is the review process. If we are going to use Military Commissions, we should use the same review process that is authorized by the Uniform 

Code of Military Justice (UCMJ) for courts-martial. 

General ALTENBURG. 

(a) The inconsistency in the statute and rules which allows a defendant 

to plead guilty to a capital offense, but then prohibits imposition of the 


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death penalty unless the defendant is found guilty by a unanimous jury 

must be resolved. 

(b) The initial level of appeal for military commissions should remain as 

a special appellate court composed of military appellate judges from the 

Service Courts of Criminal Appeals. These judges are trained and experienced in the unique fact finding role that only military appellate courts exercise. They will provide far more expedited interlocutory and post-trial reviews than will the Court of Appeals for the Armed Forces. 

(c) The revised MCA should contain a provision which allows non-capital 

defendants the right to elect to be tried and sentenced by the Military 

Judge alone, as is standard in Court-Martial practice. 

Mr. MARCUS. My recommendations for changes to the MCA are set forth at page 

6 of my prepared statement. 

CLASSIFIED INFORMATION

8. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, today, trials during an ongoing war present 

greater risks to national security through the unintended release or compromise of 

classified material than the military tribunals at the end of World War II when 

fighting had ended. During the development of the MCA in 2006, many experts from 

the Judge Advocates General to experienced prosecutors and national security officials in DOJ felt that use of the CIPA standards could inadvertently expose some 

classified information, including sensitive sources and methods, through the process 

of discovery and trial. What are your views on how military commissions can best 

protect classified information? 

Mr. JOHNSON. We believe that rules addressing classified information that are 

modeled on CIPA, but modified for the military commissions context, will best protect classified information and ensure fairness to the accused. We have worked 

closely with the Committee staff on the Levin-Graham-McCain amendment, which 

was adopted by the Senate on July 23. Specifically, the provision draws on the procedures in CIPA, with some key modifications to reflect lessons learned from past 

terrorism prosecutions. The amendment has the support of both DOD and DOJ. We 

are grateful for the work of the Committee staff in developing procedures that will 

adequately protect classified information and advance the President’s objective of 

ensuring that commissions are a fair, legitimate, and effective forum for the prosecution of law of war offenses. 

Mr. KRIS. We believe that rules addressing classified information that are modeled on CIPA, but modified for the military commissions context, will best protect 

classified information and ensure fairness to the accused. We have worked closely 

with the committee staff on the Levin-Graham-McCain amendment, which was 

adopted by the Senate on July 23. Specifically, the provision draws on the procedures in CIPA, with some key modifications to reflect lessons learned from past terrorism prosecutions. The amendment has the support of both DOD and DOJ. We 

are grateful for the work of the committee staff in developing procedures that will 

adequately protect classified information and advance the President’s objective of 

ensuring that commissions are a fair, legitimate, and effective forum for the prosecution of law of war offenses. 

Admiral MACDONALD. As noted in my answer to question 7, the rules addressing 

classified information failed to provide clear guidance to military judges and practitioners regarding the standards for discovery and the procedures to be used in obtaining ex parte review of petitions from the government. The rules governing classified information have no clear analogue in either courts-martial or Article III 

courts, depriving commissions of the benefit of the jurisprudence that exists under 

established norms in either courts-martial or district courts. Without such clear 

guidance, counsel have been unable to obtain ex parte hearings to expedite the resolution of classified information issues, and have had to seek multiple protective orders to ensure all information, regardless of source, is properly protected. 

In 2006, I advocated the use of MRE 505 as a way of protecting classified information, because under MRE 505, military courts have the ability to close a proceeding 

to the public to protect classified information. CIPA provides no such authority, nor 

is it permitted in district courts. However, experience has shown us that the 

breadth and depth of CIPA’s jurisprudence provides something that MRE 505 lacks: 

practical guidance in the application of the rules governing the handling of classified 

information. Combining the best of CIPA with the best of MRE 505, and avoiding 

novel standards that have no analogue in established rules, is a better solution. 

102 

I recommend that the classified information rules be altered, relying on CIPA as 

a touchstone for starting the draft, incorporating the lessons learned from commissions to date, and those provisions of MRE 505 that permit closure of the proceedings when warranted. Counsel and military judges will then have the benefit 

of more than 20 years of jurisprudence from CIPA application to guide the use of 

the rules. 

Admiral HUTSON. CIPA has worked exceedingly well in Federal courts. There is 

no reason in law or logic why it wouldn’t be equally useful in military commissions. 

You can’t have a real trial without providing that evidence to the defense. Otherwise, it is just a sham. 

General ALTENBURG. A system for safeguarding classified information and providing the intelligence community with the ability to help assess the potential national security risks of going forward with prosecution of a given case is best provided within the framework of RMC and RCM 505. However, it must be recognized 

that in order to have a fair trial when classified information is to be provided to 

the panel (jury) as evidence, defendants must be provided access to that information. The intelligence community must be forthright and comprehensive in providing 

information to the prosecution. The prosecution has adequate tools available under 

the rules to protect national security (they are national security equities, not ‘‘intelligence community equities’’) while protecting the defense right to confront evidence 

and guarantee a reliable result. 

Mr. MARCUS. I believe that CIPA has worked well in Federal court criminal cases 

without compromising national security, and I see no reason why it cannot work as 

effectively in military commission proceedings. The ability of military judges to close 

sensitive parts of the trial to the public is an additional safeguard. 

9. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral Hutson, 

General Altenburg, and Mr. Marcus, have the originators of classified information 

cooperated with the prosecutors in providing all the required classified information 

in a timely manner and providing declassified substitutes for the defense? 

Mr. JOHNSON. We are very satisfied with the level of cooperation we have received 

from the Intelligence Community. Sifting through classified information on detainees is a time-consuming process. We fully understand that this takes significant 

time and resources, and we appreciate the level of effort and cooperation we are receiving. 

Mr. KRIS. We are very satisfied with the level of cooperation we have received 

from the Intelligence Community. Sifting through classified information on detainees is a timeconsuming process. We fully understand that this takes significant time 

and resources, and we appreciate the level of effort and cooperation we are receiving. 

Admiral MACDONALD. There is good cooperation; however, we can and should continue to make timeliness a priority. 

Admiral HUTSON. I have no personal knowledge of this. 

General ALTENBURG. No. The current process is exceptionally timeconsuming and 

unpredictable. Intelligence organizations are not designed to support prosecution of 

criminal cases. From the perspective of the prosecution function the various intelligence agencies do not cooperate; the Guantanamo Joint Task Force and Joint Intelligence Group are also uncooperative when viewed from the perspective of judicial 

system participants. 

Mr. MARCUS. I am not in a position to answer this question. 

10. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, what changes would you recommend 

to the MCA’s classified information protection provisions based on military commission trial and discovery experience to date? 

Mr. JOHNSON. See the answer to question 8. 

Mr. KRIS. See the answer to question 8. 

Admiral MACDONALD. As noted in my answer to questions 7and 10, the rules addressing classified information failed to provide clear guidance to military judges 

and practitioners regarding the standards for discovery and the procedures to be 

used in obtaining ex parte review of petitions from the government. The rules governing classified information have no clear analogue in either courts-martial or Article III courts, depriving commissions of the benefit of the jurisprudence that exists 

under established norms in either courts-martial or district courts. Without such 

clear guidance, counsel have been unable to obtain ex parte hearings to expedite the 

resolution of classified information issues, and have had to seek multiple protective 

orders to ensure all information, regardless of source, is properly protected. 

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In 2006, I advocated the use of MRE 505 as a way of protecting classified information, because under MRE 505, military courts have the ability to close a proceeding 

to the public to protect classified information. CIPA provides no such authority, nor 

is it permitted in district courts. However, experience has shown us that the 

breadth and depth of CIPA’s jurisprudence provides something that MRE 505 lacks: 

practical guidance in the application of the rules governing the handling of classified 

information. Combining the best of CIPA with the best of MRE 505, and avoiding 

novel standards that have no analogue in established rules, is a better solution. 

I recommend that the classified information rules be altered, relying on CIPA as 

a touchstone for starting the draft, incorporating the lessons learned from commissions to date, and those provisions of MRE 505 that permit closure of the proceedings when warranted. Counsel and military judges will then have the benefit 

of more than 20 years of jurisprudence from CIPA application to guide the use of 

the rules. 

Admiral HUTSON. I would make whatever changes would bring MCs in line with 

CIPA. 

General ALTENBURG. This is a difficult issue. The problem is that the intelligence 

agencies want to be the sole decisionmakers regarding relevance of any information, 

and not turn over anything else. It seems to me that the prosecutors should be properly entrusted with this responsibility, but encounter difficulty with intelligence personnel. When defense counsel object to prosecutor determinations then judges will 

resolve the matters. Prosecutors must be empowered to make the initial relevancy 

determinations. Those determinations will, of course, be reviewable. 

Mr. MARCUS. The committee’s bill contains provisions partially embracing CIPA 

principles and procedures, and I understand that the Justice Department has suggested additional steps to move further in that direction. I encourage the committee 

to adopt CIPA principles and procedures for treatment of classified information to 

the greatest extent practicable. 

CRIMES COMMITTED BEFORE SEPTEMBER 11

11. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, the MCA addresses crimes that were 

committed before September 11 in two ways. First, it includes a statement that military commissions have jurisdiction over offenses committed ‘‘before, on, or after September 11, 2001’’ (section 948d). Second, the MCA notes that it did not establish 

new crimes that did not exist before its enactment, but codifies those crimes that 

could be tried by military commissions so trials for crimes that occurred before the 

date of enactment are not precluded (section 950p). What are your views on the 

MCA’s treatment of offenses that occurred before September 11? Does this raise a 

constitutional ‘‘ex post facto law’’ problem? 

Mr. JOHNSON. Article I, section 9 of the Constitution prohibits the Federal Government from enacting laws with certain retroactive effects, including laws that 

‘‘make an action done before the passing of the law, and which was innocent when 

done, criminal.’’ Stogner v. California, 539 U.S. 607, 610–12 (2003) (quoting Calder 

v. Bull, 3 Dall. 386, 390–91 (1798)). The MCA authorizes trial by military commission of a number of substantive offenses. If an offense were clearly not previously 

a crime under the law of war, section 950p of the MCA would not save a prosecution 

for that offense from potential dismissal on ex post facto grounds. Prosecution of a 

law-of-war offense committed during armed conflict would not raise ex post facto 

concerns, regardless of when the trial takes place. 

Mr. KRIS. Article I, section 9 of the Constitution prohibits the Federal Government from enacting laws with certain retroactive effects, including laws that ‘‘make 

an action done before the passing of the law, and which was innocent when done, 

criminal.’’ Stogner v. California, 539 U.S. 607, 610–12 (2003) (quoting Calder v. 

Bull, 3 Dall. 386, 390–91 (1798)). The MCA authorizes trial by military commission 

of a number of substantive offenses. If an offense were clearly not previously a crime 

under the law of war, section 950p of the MCA would not save a prosecution for 

that offense from potential dismissal on ex post facto grounds. Prosecution of a lawof-war offense committed during armed conflict would not raise ex post facto concerns, regardless of when the trial takes place. 

Admiral MACDONALD. In my opinion, it does not. There is precedent and practice, 

both domestically and internationally, to charge and try persons for alleged violations of the laws and customs of war, which by definition, are not exhaustively codified into positive criminal statutes. The International Criminal Tribunal for the 

Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court all contain residual clauses granting the tribunals jurisdicVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
104 

tion to hear cases of alleged violations of the ‘‘laws and customs of war.’’ The burden 

is on the prosecutor to show that at the time of the alleged offense, there existed 

a customary rule under the laws of war, which applied to the accused at the time 

of the alleged offense. 

Admiral HUTSON. It clearly raises ‘‘ex post facto’’ issues. This is a good example 

of why we should use the already existing Federal court system and not military 

commissions and certainly not base convictions on newly minted laws. 

General ALTENBURG. It does not raise an ex post facto problem as long as the 

crimes which are charged are rooted in the traditional law of war and were actually 

punishable prior to September 11, 2001. The MCA should state expressly that it is 

codifying existing law rather than establishing new crimes; this will resolve a confusing issue. 

Mr. MARCUS. I am troubled by prosecuting most pre-September 11 offenses by 

GTMO detainees as war crimes because we were not engaged in an armed conflict 

with al Qaeda or the Taliban before September 11. Of course, crimes such as the 

1998 attacks on the U.S. embassies in Kenya and Tanzania or the 2000 attack on 

the U.S.S. Cole can and should be prosecuted in U.S. Federal courts or appropriate 

criminal tribunals in other countries. Most of the offenses set forth in the MCA were 

clearly understood to be war crimes triable before military commissions before the 

MCA was enacted. There is controversy as to only a few—particularly conspiracy 

and material support of terrorism. I think it is appropriate for Congress to deem 

conspiracy and terrorism to be war crimes triable before military commissions. I 

think, however, that ‘‘material support of terrorism’’ is problematic because of its 

broad sweep and unclear basis in the law of armed conflict. 

12. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, have ‘‘ex post facto law’’ issues been 

raised during military commission trials? How have the judges ruled on that issue? 

Mr. JOHNSON. Military commissions have ruled on ex post facto issues in three 

cases: United States v. al Darbi (see Annex B), United States v. Hamdan (see Annex 

C), and United States v. Khadr (see Annex D). In those cases, the defense moved 

to dismiss specific charges for lack of subject-matter jurisdiction. Al Darbi and 

Hamdan challenged the charges brought against them for conspiracy, 10 U.S.C. 

§ 950v(b)(28), and for providing material support to terrorism, 10 U.S.C. 

§ 950v(b)(25). Khadr challenged the charge of providing material support for terrorism. 

In all three cases, the Commission judge denied the relief requested on grounds 

that the ex post facto clause of the U.S. Constitution was not violated. 

The defense has filed motions to dismiss based on ex post facto arguments in the 

cases of United States v. Mohammed et al. (September 11 case) and United States 

v. al Qosi. Those motions remain pending. 

Mr. KRIS. Military commissions have ruled on ex post facto issues in three cases: 

United States v. al Darbi (see Annex B), United States v. Hamdan (see Annex C), 

and United States v. Khadr (see Annex D). In those cases, the defense moved to dismiss specific charges for lack of subject-matter jurisdiction. Al Darbi and Hamdan 

challenged the charges brought against them for conspiracy, 10 U.S.C. § 950v(b)(28), 

and for providing material support to terrorism, 10 U.S.C. § 950v(b)(25). Khadr challenged the charge of providing material support for terrorism. 

In all three cases, the commission judge denied the relief requested on grounds 

that the ex post facto clause of the U.S. Constitution was not violated. 

The defense has filed motions to dismiss based on ex post facto arguments in the 

cases of United States v. Mohammed et al. (September 11 case) and United States 

v. al Qosi. Those motions remain pending. 

Admiral MACDONALD. Military commissions have ruled on ex post facto issues in 

three cases: United States v. al Darbi, United States v. Hamdan, and United States 

v. Khadr. In those cases, the defense moved to dismiss specific charges for lack of 

subject-matter jurisdiction. Darbi and Hamdan challenged the charges brought 

against them for conspiracy, 10 U.S.C. § 950v(b)(28), and for providing material support to terrorism, 10 U.S.C. § 950v(b)(25). Khadr challenged the charge of providing 

material support for terrorism. In all three cases, the Commission judge denied the 

relief requested on grounds that the ex post facto clause of the U.S. Constitution 

was not violated. 

Admiral HUTSON. I have no personal knowledge. 

General ALTENBURG. The defense has raised this issue in most, if not all, of the 

pending cases. No judge has granted any motion to dismiss the case on this basis. 

Mr. MARCUS. I am not aware of how the ‘‘ex post facto’’ issue has been treated 

in military commission proceedings since the MCA was enacted. 

105 

13. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should the MCA continue to authorize 

trial of offenses that occurred before September 11? 

Mr. JOHNSON. As President Obama said in his May 21 speech at the National Archives, military commissions are an appropriate venue for ‘‘trying detainees for violations of the law of war.’’ We believe it is important for the system’s legitimacy that 

commissions try only conduct that was a violation of the laws of war when it occurred, and that took place during a relevant period of conflict. This could include 

some offenses that were committed as part of an armed conflict prior to September 

11, 2001. The administration will work to ensure that prosecutions under the MCA, 

including any amendments that may be enacted to refine the offenses defined in 

that statute, meet both of these standards. 

Mr. KRIS. As President Obama said in his May 21 speech at the National Archives, military commissions are an appropriate venue for ‘‘trying detainees for violations of the law of war.’’ We believe it is important for the system’s legitimacy that 

commissions try only conduct that was a violation of the laws of war when it occurred, and that took place during a relevant period of conflict. This could include 

some offenses that were committed as part of an armed conflict prior to September 

11, 2001. The administration will work to ensure that prosecutions under the MCA, 

including any amendments that may be enacted to refine the offenses defined in 

that statute, meet both of these standards. 

Admiral MACDONALD. Yes. As the 9/11 Commission documented, members of al 

Qa’ida and associated organizations intentionally attacked U.S. civilians, civilian objects, and U.S. Armed Forces in violation of the laws and customs of war prior to 

September 11. Military Commissions are a war crimes tribunal, and they should 

have jurisdiction to hear cases that predated September 11. 

Admiral HUTSON. I don’t think there is a legal prohibition but I think it is bad 

policy. 

General ALTENBURG. Yes. 

Mr. MARCUS. No. 

14. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, what changes, if any, would you recommend? 

Mr. JOHNSON. The administration is committed to working with Congress to address ex post facto and other legal concerns potentially raised by prosecutions under 

the MCA. Among these recommendations is that Congress consider amending section 950w to remove the offense of ‘‘material support for terrorism,’’ which the administration has concluded appellate courts may find is not a traditional violation 

of the law of war. If this offense is removed, the administration further recommends 

that Congress consider amending section 950p to include a clear statement that the 

offenses contained in the bill codify offenses that have traditionally been triable 

under the law of war or otherwise triable by military commission. Please see the 

answer to question 7 for the administration’s recommendations regarding additional 

modifications we would like to see to the Senate bill. 

Mr. KRIS. The administration is committed to working with Congress to address 

ex post facto and other legal concerns potentially raised by prosecutions under the 

MCA. Among these recommendations is that Congress consider amending section 

950w to remove the offense of ‘‘material support for terrorism,’’ which the administration has concluded appellate courts may find is not a traditional violation of the 

law of war. If this offense is removed, the administration further recommends that 

Congress consider amending section 950p to include a clear statement that the offenses contained in the bill codify offenses that have traditionally been triable under 

the law of war or otherwise triable by military commission. Please see the answer 

to question 7 for the administration’s recommendations regarding additional modifications we would like to see to the Senate bill. 

Admiral MACDONALD. I personally do not believe any changes are needed regarding pre-September 11 offenses. 

Admiral HUTSON. I would prosecute those cases which are not barred by the statute of limitations in U.S. District Court. 

General ALTENBURG. None. 

Mr. MARCUS.I would eliminate the crime of material support of terrorism. 

HEARSAY

15. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, the MCA provides broad authority to 

106 

use hearsay evidence at trial so long as the judge finds it is reliable and probative. 

However, the burden to show that hearsay was not reliable or probative was put 

on the party opposing the evidence, which normally is the detainee. Who should 

have the burden of showing that hearsay is reliable and should be admitted at trial? 

Mr. JOHNSON. In May the administration announced five rule changes to the military commissions. One of those changes deals with this issue—making sure that the 

party seeking admission of hearsay has the burden to prove that it is reliable and 

probative, which is where the administration believes the burden belongs. 

Mr. KRIS. In May, the administration announced five rule changes to the military 

commissions. One of those changes deals with this issue—making sure that the 

party seeking admission of hearsay has the burden to prove that it is reliable and 

probative, which is where the administration believes the burden belongs. 

Admiral MACDONALD. I fully support the change to this standard that was forwarded by the President in a rule change that became effective in July. The proponent of hearsay evidence, just like the proponent of any evidence offered for admission, should have the burden of establishing reliability and admissibility. 

Admiral HUTSON. The proponent. 

General ALTENBURG. The party offering the evidence should have the burden of 

establishing its admissibility. The trial judge then must determine, as with any evidence offered by either party, whether the evidence is probative and reliable, and 

therefore admissible. I disagree with the assertion in this question that the government is usually the party offering hearsay. I believe that the relaxed hearsay provisions of the MCA will benefit the accused, who does not have the unlimited access 

to live witnesses that the government does, at least as much they will benefit the 

government. 

Mr. MARCUS. The prosecution should have the burden of establishing admissibility 

of hearsay evidence. 

16. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, is the hearsay exception in the MCA 

too broad? If so, how should it be narrowed and yet still take into account the realities of wartime circumstances when witnesses may be involved in combat or intelligence operations and foreign intelligence service personnel who may not be compelled to attend trial may be involved? 

Mr. JOHNSON. The administration supports the general approach taken by the 

committee in reforming the use of hearsay evidence under the MCA, which includes 

a general restriction on hearsay and a residual exception. The administration, however, recommends a somewhat different standard for when the residual exception 

should apply, based on whether the hearsay evidence is more probative than other 

evidence that could be procured through reasonable efforts. We believe this exception accounts for the realities of wartime circumstances, while limiting the use of 

this exception to circumstances in which it is warranted. Please see the answer in 

question #7 for the administration’s recommendation on this issue. 

Mr. KRIS. The administration supports the general approach taken by the committee in reforming the use of hearsay evidence under the MCA, which includes a 

general restriction on hearsay and a residual exception. The administration, however, recommends a somewhat different standard for when the residual exception 

should apply, based on whether the hearsay evidence is more probative than other 

evidence that could be procured through reasonable efforts. We believe this exception accounts for the realities of wartime circumstances, while limiting the use of 

this exception to circumstances in which it is warranted. Please see the answer in 

question #7 for the administration’s recommendation on this issue. 

Admiral MACDONALD. As a general matter, I believe that a hearsay standard requiring that the proponent establish reliability is not overly broad. However, I believe that that broad admissibility standard should only be permitted when the proponent has established that there is a sound, practical need to use hearsay evidence 

in place of direct testimony from the declarant. I support a formulation similar to 

the Senate proposal which contains a requirement that the proponent establish that 

the declarant is unavailable, basing that unavailability in the realities of wartime 

circumstances. 

Admiral HUTSON. It is too broad. The FRE are sufficient to account for war time 

scenarios. Evidence will not be barred by hearsay unless the context and motive is 

criminal investigation vice warfighting. 

General ALTENBURG. The proposed amendments to the MCA are a substantial improvement, but should be further refined to require that the military judge determine, under the totality of the circumstances, that a statement is reliable for the 

purpose for which it is offered. In addition, the current requirement that a witness 

be unavailable before hearsay is admitted, while furthering the goal of confronting 

107 

witnesses, will create extensive litigation in each case over the unavailability of the 

witness and could make prosecutions by commissions untenable. The military judge 

should be granted statutory discretion to balance these factors when deciding admissibility of a particular statement. It is worth remembering that flexibility in hearsay 

is warranted not as a way to reduce the rigor or reliability of the trial process but 

as a recognition of the way our combat troops fight and the fact that evidence gathering in a war zone simply cannot meet the strictures with which we are familiar 

in Stateside civilian settings. 

Mr. MARCUS. I endorse the standard for admissibility contained in the committee’s 

bill. 

COERCION AND DUE PROCESS RIGHTS OF DETAINEES

17. Senator MCCAIN. Mr. Johnson and Mr. Kris, the Wall Street Journal and the 

New York Times reported last week that the DOJ Office of Legal Counsel issued 

guidance in May that detainees have some level of due process rights that could bar 

use at trial of statements made under coercion. What is your opinion of the level 

of due process rights enjoyed by detainees and the degree of coercion that would violate a detainee’s due process rights? 

Mr. JOHNSON. The administration believes that, whether military commissions are 

convened in the United States or at Guantanamo, there is a significant risk, in light 

of the circumstances of the Guant namo detainees, that courts will apply a baseline 

of due process protections in commission proceedings. This does not mean that 

courts would provide commission defendants with the same array of constitutional 

rights that defendants receive in Article III criminal trials. We do believe, however, 

that there is a significant risk courts would afford commission defendants with 

those due process protections that are ‘‘so rooted in the traditions and conscience 

of our people as to be ranked as fundamental,’’ Snyder v. Massachusetts, 291 U.S. 

97, 105 (1934). In particular, we believe there is a substantial risk that courts will 

hold that the Constitution requires application of a due process voluntariness test 

for admission of statements of the accused, although we do not believe that courts 

would apply the Miranda rules prohibiting admission of unwarned statements. This 

is so regardless of whether the commission proceedings take place in Guantanamo 

or the United States. 

Mr. KRIS. The administration believes that, whether military commissions are 

convened in the United States or at Guantanamo, there is a significant risk, in light 

of the circumstances of the Guantanamo detainees, that courts will apply a baseline 

of due process protections in commission proceedings. This does not mean that 

courts would provide commission defendants with the same array of constitutional 

rights that defendants receive in Article III criminal trials. We do believe, however, 

that there is a significant risk courts would afford commission defendants with 

those due process protections that are ‘‘so rooted in the traditions and conscience 

of our people as to be ranked as fundamental.’’ Snyder v. Massachusetts, 291 U.S. 

97, 105 (1934). In particular, we believe there is a substantial risk that courts will 

hold that the Constitution requires application of a due process voluntariness test 

for admission of statements of the accused, although we do not believe that courts 

would apply the Miranda rules prohibiting admission of unwarned statements. This 

is so regardless of whether the commission proceedings take place in Guantanamo 

or the United States. 

18. Senator MCCAIN. Mr. Johnson and Mr. Kris, would a prohibition on use of testimony obtained through interrogation techniques amounting to cruel, inhuman, or 

degrading treatment be sufficient to satisfy due process if the evidence was otherwise deemed reliable and probative by the military judge and its admission served 

the best interests of justice? 

Mr. JOHNSON. See our answer to question 17. A standard based on reliability and 

the ‘‘interests of justice’’ would be vulnerable to a constitutional due process challenge in those cases where a military commission construed it to allow the admission of involuntary statements of the accused. The use of such statements might 

then be subject to reversal on appeal. Accordingly, there are compelling legal and 

policy reasons to include an express voluntariness requirement. 

That said, we believe that any voluntariness requirement for military commissions cases should account, consistent with the law, for the context in which statements later considered by military commissions can occur. Specifically, the administration has proposed the following as an alternative to § 948r of the Senate bill, 

which includes a voluntariness standard for military commissions cases, as well as 

108 

a clearer prohibition on the use of any statement obtained by torture or cruel, inhuman, or degrading treatment: 


707ful38.eps
109 

Mr. KRIS. See our answer to question 17. A standard based on reliability and the 

‘‘interests of justice’’ would be vulnerable to a constitutional due process challenge 

in those cases where a military commission construed it to allow the admission of 

involuntary statements of the accused. The use of such statements might then be 

subject to reversal on appeal. Accordingly, there are compelling legal and policy reasons to include an express voluntariness requirement. 

That said, we believe that any voluntariness requirement for military commissions cases should account, consistent with the law, for the context in which statements later considered by military commissions can occur. Specifically, the administration has proposed the following as an alternative to § 948r of the Senate bill, 

which includes a voluntariness standard for military commissions cases, as well as 

a clearer prohibition on the use of any statement obtained by torture or cruel, inhuman, or degrading treatment: 


707ful39.eps
110 


707ful28.eps
111 

DEFINITION OF ‘‘UNLAWFUL ENEMY COMBATANT’’ OR ‘‘UNPRIVILEGED BELLIGERENT’’ 

19. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, the Obama administration has developed a somewhat different standard for detention authority for use in the ongoing 

habeas cases and is not using the term ‘‘unlawful enemy combatant.’’ Should the 

definition of ‘‘unlawful enemy combatant’’ as used for the purpose of jurisdiction of 

military commissions be changed? If so, how? 


707ful29.eps 707ful30.eps
112 

Mr. JOHNSON. The administration supports the determination to discontinue the 

use of the term ’’unlawful enemy combatant’’ in the military commission legislation 

that passed the Senate on July 23. The administration believes that it is unnecessary to establish a new term of art for persons subject to trial by military commission. 

Mr. KRIS. The administration supports the determination to discontinue the use 

of the term ‘‘unlawful enemy combatant’’ in the military commission legislation that 

passed the Senate on July 23. The administration believes that it is unnecessary 

to establish a new term of art for persons subject to trial by military commission. 

Admiral MACDONALD. The authorities provided under the laws of war to detain 

people are separate from jurisdictional definitions for war crimes tribunals, and I 

support the administration’s 13 March standard on detention authority. With regard 

to the distinctions in terminology between ‘‘unlawful enemy combatant’’ and 

‘‘unprivileged enemy belligerent,’’ the two terms are synonymous under Defense Department Directive 2310.1E, and both may be found in commentary from leading 

jurists. As a technical matter, the phrase ‘‘unprivileged belligerent’’ predates ‘‘unlawful combatant’’ and is the more commonly used term under the laws of war. 

Admiral HUTSON. ‘‘Enemy combatant’’ or perhaps ‘‘Unprivileged enemy combatant.’’ 

General ALTENBURG. The proposed change to the term ‘‘unprivileged enemy belligerent’’ is a positive change, which will now include those who engage in hostilities 

against our coalition partners. 

Mr. MARCUS. Yes. The definition of ‘‘unlawful enemy combatant’’ in the MCA 

should be changed to reflect the substance of recent decisions by U.S. District 

Judges in GTMO habeas cases, most of which have limited the scope of detention 

authority to individuals who have taken part in hostilities against the United States 

as part of al Qaeda or the Taliban or who have provided substantial support to 

those hostilities. 

APPELLATE REVIEW OF MILITARY COMMISSIONS

20. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, different routes for appellate review 

of military commissions have been considered. The current MCA system includes a 

new court within DOD, the Court of Military Commission Review (CMCR), and 

mandatory review by an Article III court, the U.S. Court of Appeals for the District 

of Columbia Circuit, with the possibility of review by the U.S. Supreme Court. Other 

alternatives have included the U.S. Court of Appeals for the Armed Forces. What 

are your views on appellate review for military commissions? Should an Article III 

court be involved, or should the U.S. Court of Appeals for the Armed Forces conduct 

the appellate review as is the case for courts-martial? 

Mr. JOHNSON. We agree with the Senate that the scope of appellate review must 

be expanded to include review of factual as well as legal matters. However, we believe that a four-tier appellate structure should be retained. The Senate bill eliminates the CMCR and eliminates appeals from that court to the United Court of Appeals for the District of Columbia Circuit. The Senate bill would instead route appeals directly from the trial level military commission to the U.S. Court of Appeals 

for the Armed Forces, thus replacing the current four-tiered appeals structure with 

a three-tiered one. The administration believes that it is important to retain a fourtiered structure, given the complexity of the cases and issues likely to arise, and 

that the United States Court of Appeals for the DC Circuit should be retained in 

the structure. 

Mr. KRIS. We agree with the Senate that the scope of appellate review must be 

expanded to include review of factual as well as legal matters. However, we believe 

that a four-tier appellate structure should be retained. The Senate bill eliminates 

the CMCR and eliminates appeals from that court to the United Court of Appeals 

for the District of Columbia Circuit. The Senate bill would instead route appeals directly from the trial level military commission to the U.S. Court of Appeals for the 

Armed Forces, thus replacing the current four-tiered appeals structure with a threetiered one. The administration believes that it is important to retain a four-tiered 

structure, given the complexity of the cases and issues likely to arise, and that the 

United States Court of Appeals for the DC Circuit should be retained in the structure. 

Admiral MACDONALD. I support review of military commissions by a civilian 

court. For courts-martial, convictions are reviewed first by a Service Court of Criminal Appeals, authorized to review a conviction and sentence for factual and legal 

sufficiency, sentence appropriateness and prejudicial legal error. Convictions are 

113 

then reviewed by the Court of Appeals for the Armed Forces for legal sufficiency 

and prejudicial legal error, and if a petition for review is granted, further legal review is available by the Supreme Court. I support that same construct. While my 

preference would be to conduct factual sufficiency review by military judges who 

have experience conducting that type of review in courts-martial, the Court of Appeals for the Armed Forces is fully capable of conducting a factual and legal sufficiency review. 

Admiral HUTSON. If we use military commissions, then the military court martial 

review process should be used. Bouncing into the civilian system at the review level 

makes no sense. 

General ALTENBURG. The current appellate review structure should be preserved. 

The Court of Appeals for the Armed Forces is an inappropriate forum for deciding 

interlocutory appeals, initial post-trial appeals, and fact finding. These functions in 

the military system belong exclusively to the Service Courts of Criminal Appeals, 

which are experienced and trained in those functions. The CMCR, composed of service appellate judges, provides the best mechanism for dealing with these appellate 

review functions. The service appellate judges are experienced by virtue of the fact 

that many have been trial judges with fact finding authority; they have acquired 

more fact finding experience as service appellate judges because of the unique Congressional provisions for those courts. Only the best of this already select group of 

judges are then nominated for the CMCR. Their staffs, both uniformed and civilian, 

also have considerable experience analyzing and processing hundreds of cases and 

applying fact finding analysis in all of the cases, even guilty plea cases; the service 

appellate court culture is replete with nearly 60 years of appellate factfinding experience and precedent. The service appellate court caseloads, affected by mandatory 

appeal considerations, generate more experience for their participants than courts 

whose members accept a finite caseload and have minimal, if any, experience with 

the fact finding function. Appeal beyond the CMCR should also be preserved in the 

United States Court of Appeals for the DC Circuit, an Article III appellate court. 

Mr. MARCUS. Review in either the Court of Appeals for the DC Circuit or the 

Court of Appeals for the Armed Forces is appropriate. 

21. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should appellate review at some level 

include both facts and law, as under the first level of review of courts-martial? 

Mr. JOHNSON. Yes. We concur with the expanded scope of appellate review in section 1031, which includes review of factual as well as legal matters. 

Mr. KRIS. Yes. We concur with the expanded scope of appellate review in section 

1031, which includes review of factual as well as legal matters. 

Admiral MACDONALD. As I noted in my answer to question 20, I do support review of both facts and law. Our military judges are well versed in the practice, and 

I support using a review that mirrors that found under the UCMJ to the maximum 

extent possible. 

Admiral HUTSON. Yes. 

General ALTENBURG. Because the Commissions system is rooted in military law 

and court-martial practice, the fact finding function of the initial level appellate 

court represents uniformity with that system. It works well in court martial practice; I see no reason to change it for Commissions. I reiterate, however, that this 

court must be composed of military appellate judges who are trained and experienced in this unique appellate function. 

Mr. MARCUS. Yes—facts and law. 

EXECUTIVE ORDER ON LONG-TERM DETENTION

22. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, on June 27, 2009, the Washington 

Post reported that the White House was considering issuing an Executive order reasserting the President’s authority to incarcerate terrorism suspects indefinitely. In 

your opinion, does the President currently have authority under the AUMF to hold 

terrorists, including members of al Qaeda and the Taliban, until the end of hostilities? 

Mr. JOHNSON. As the President stated in his National Archives address, there 

may ultimately be a category of Guantanamo detainees ‘‘who cannot be prosecuted 

for past crimes,’’ but ‘‘who nonetheless pose a threat to the security of the United 

States’’ and ‘‘in effect, remain at war with the United States.’’ For this category of 

people, the President stated ‘‘[w]e must have clear, defensible, and lawful standVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
114 

ards’’ and ‘‘a thorough process of periodic review, so that any prolonged detention 

is carefully evaluated and justified.’’ 

This President believes that, if any detention of this sort proves necessary, the 

authority to detain must be rooted firmly in authorization granted by Congress. 

This is why, on March 13, 2009, DOJ refined the Government’s definition of our authority to detain those at Guantanamo Bay, from the ‘‘enemy combatant’’ definition 

used by the prior administration to one that is tied to the AUMF passed by Congress in 2001, as informed by the laws of war. Thus, with regard to the current detainee population at Guantanamo, this administration relies on authority provided 

by Congress as informed by the laws of war in justifying to Federal courts in habeas 

corpus litigation the continued detention of Guantanamo detainees. 

Mr. KRIS. As the President stated in his National Archives address, there may 

ultimately be a category of Guantanamo detainees ‘‘who cannot be prosecuted for 

past crimes,’’ but ‘‘who nonetheless pose a threat to the security of the United 

States’’ and ‘‘in effect, remain at war with the United States.’’ For this category of 

people, the President stated ‘‘[w]e must have clear, defensible, and lawful standards’’ and ‘‘a thorough process of periodic review, so that any prolonged detention 

is carefully evaluated and justified.’’ 

This President believes that, if any detention of this sort proves necessary, the 

authority to detain must be rooted firmly in authorization granted by Congress. 

This is why, on March 13, 2009, DOJ refined the Government’s definition of our authority to detain those at Guantanamo Bay, from the ‘‘enemy combatant’’ definition 

used by the prior administration to one that is tied to the AUMF passed by Congress in 2001, as informed by the laws of war. Thus, with regard to the current detainee population at Guantanamo, this administration relies on authority provided 

by Congress as informed by the laws of war in justifying to Federal courts in habeas 

corpus litigation the continued detention of Guantanamo detainees. 

Admiral MACDONALD. Yes; under the laws of war, unprivileged enemy belligerents can be detained for the duration of hostilities in a non-international armed conflict. The Supreme Court has ruled that the armed conflict with al Qa’ida is a noninternational armed conflict, or what is sometimes referred to as a Common Article 

III armed conflict. The Court has also ruled that the President’s authority under 

the AUMF includes detention authority. 

Admiral HUTSON. I do not believe the AUMF gives him that authority by its 

terms but he does have it under the Geneva Conventions and the common law of 

armed conflict. However, his political, diplomatic, practical and humanitarian power 

to do so may be significantly more limited. 

General ALTENBURG. Yes. 

Mr. MARCUS. Yes. The President has the authority to hold al Qaeda and Taliban 

detainees until the end of hostilities. But given the indefinite nature of this conflict, 

detainees should be tried for war crimes or released if at all possible. There should 

be a more robust and independent system for reviewing the status of those who continue to be detained. 

23. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, does the President’s authority to detain extend to other individuals or groups? 

Mr. JOHNSON. Please see the answer to question 22. The administration has 

adopted a detention standard for the detainees at Guantanamo that is based on the 

AUMF, as informed by the law of war. This standard reads as follows: 

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that 

occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaeda 

forces or associated forces that are engaged in hostilities against the United 

States or its coalition partners, including any person who has committed a 

belligerent act, or has directly supported hostilities, in aid of such enemy 

armed forces. 

Mr. KRIS. Please see the answer to question 22. The administration has adopted 

a detention standard for the detainees at Guantanamo that is based on the AUMF, 

as informed by the law of war. This standard reads as follows: 

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that 

occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaeda 

115 

forces or associated forces that are engaged in hostilities against the United 

States or its coalition partners, including any person who has committed a 

belligerent act, or has directly supported hostilities, in aid of such enemy 

armed forces. 

Admiral MACDONALD. On March 13, the administration submitted a legal position 

on the authority under the AUMF to detain the persons now held at Guantanamo 

Bay, and to date, the relevant Federal courts have entered rulings supporting that 

position. I also support the March 13 position, which follows: 

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that 

occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaeda 

forces or associated forces that are engaged in hostilities against the United 

States or its coalition partners, including any person who has committed a 

belligerent act, or has directly supported hostilities, in aid of such enemy 

armed forces. 

Admiral HUTSON. It extends to anyone who is engaged in a war (as opposed to 

criminal activity) against the U.S. 

General ALTENBURG. International law and the Geneva Conventions provide that 

enemy combatants, both lawful and unlawful, may be detained until the end of hostilities. 

Mr. MARCUS. The changing nature of al Qaeda and affiliated terrorist groups 

makes this a difficult question to answer. But the AUMF should not be construed 

to authorize detention of individuals who are members of groups not clearly and 

closely affiliated with al Qaeda or the Taliban. 

24. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, during his May speech at the National 

Archives, President Obama indicated his intent to seek authorization from Congress 

and provide for judicial review of long-term detention of terrorists who could not be 

tried, but were too dangerous to release. How could President Obama achieve those 

objectives if he issues an Executive order? 

Mr. JOHNSON. Congress has already provided authorization through the AUMF to 

detain persons who the President determines planned, authorized, committed, or 

aided the terrorist attacks that occurred on September 11, 2001, persons who harbored those responsible for those attacks, and persons who were part of, or substantially supported, Taliban or al Qaeda forces or associated forces that are engaged 

in hostilities against the United States or its coalition partners. Habeas courts are 

actively reviewing the government’s detention decisions. The administration is not 

currently seeking additional authorization. 

Mr. KRIS. Congress has already provided authorization through the AUMF to detain persons who the President determines planned, authorized, committed, or aided 

the terrorist attacks that occurred on September 11, 2001, persons who harbored 

those responsible for those attacks, and persons who were part of, or substantially 

supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners. Habeas courts are actively 

reviewing the government’s detention decisions. The administration is not currently 

seeking additional authorization. 

Admiral MACDONALD. I must respectfully defer to the administration on this 

question; however, I would note that in my view the President already has authority 

under the laws of war and the AUMF to detain members of al Qaeda, Taliban, and 

associated forces and others as described in the March 13 position (see previous answer), for the duration of hostilities. In this regard, I would like to emphasize that 

the armed conflict confronting us was not of our choosing and the duration of hostilities will depend in large measure on the actions of the enemy. 

Admiral HUTSON. If that power is authorized, it is better to come from Congress 

than from an Executive order. 

General ALTENBURG. By expanding the role of military judges to include this function, but any expansion of Federal judicial jurisdiction would, in my opinion, require 

congressional authorization. 

Mr. MARCUS. While the President could issue an executive order on detention, 

consistent with the AUMF, it seems to me that he would need legislation to establish a judicial review mechanism. I also think that it would be desirable to have 

Congress authorize any longer-term detention system. 

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SORTING CASES FOR TRIAL

25. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, how would you propose sorting cases 

that should be tried in Article III Federal courts from those that should be tried 

before a military commission? 

Mr. JOHNSON. DOJ and DOD have agreed upon a protocol for evaluating whether 

detainees at Guantanamo Bay who may be prosecuted should be prosecuted in an 

Article III civilian court or by military commission. That protocol is attached (see 

Annex A). 

Mr. KRIS. DOJ and DOD have agreed upon a protocol for evaluating whether detainees at Guantanamo Bay who may be prosecuted should be prosecuted in an Article III civilian court or by military commission. That protocol is attached (see 

Annex A). 

Admiral MACDONALD. There may be individual instances where a determination 

may be warranted to criminally prosecute a case in an Article III court, depending 

on factors such as the citizenship of the accused, the location of the offense, the status of the victims, or the particularities of the crime. Ultimately, it is a policy determination as to whether the Nation chooses to pursue a case in one forum or another. No matter whether or how that determination is made, however, I think it 

is important that the system for military commissions this country establishes is 

fair, and that our confidence in the fairness and legality of their rules and procedures is so high that we are able to accept trial of our own servicemembers before 

similar tribunals for allegations of war crimes brought by another country. 

Admiral HUTSON. I would try all the cases in Article III courts. These are the 

courts with the unimpeachable credibility and vast experience to do it well. They 

have proven success and military commissions have demonstrated failure. 

General ALTENBURG. Those cases whose core facts more reasonably are rooted in 

law of war violations should be tried by Military Commission; those which are more 

reasonably rooted in criminal violations should be tried by Article III courts. This 

is, however, not the most workable distinction to make, because most offenses can 

be characterized as violations of the law of war or as conventional crimes (consider, 

e.g., Lockerbie, indisputably the war crime of murdering innocent civilians, but also 

an extra-territorial murder prosecutable under the U.S. Code). Employing military 

commissions, then, fulfills a strategic purpose that transcends the elements of a 

crime, because it is a singularly appropriate, specialized forum in which we have 

tried war crimes since George Washington commanded our forces. It can accommodate, within the context of a contested criminal proceeding, the unique demands of 

national security, personal security, evidence gathering, and intelligence. Under no 

circumstances should Military Commissions be reserved for cases where the evidence would not support findings beyond a reasonable doubt; such a distinction 

would invalidate the legitimacy of the Commissions process. 

Mr. MARCUS. One or the other forum—military commissions or Federal courts— 

may be the more desirable depending on the facts and litigation problems of particular cases. I think some categories of cases should be tried in Federal courts— 

e.g., those against detainees (such as Padilla or al-Marri) who were captured or arrested while lawfully in the United States, and those against detainees who committed crimes that occurred before, and were unrelated to, the September 11 attacks. Military commissions should only be used for September 11-related or postSeptember 11 war crimes. 

26. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, if a terrorist attack on civilians is a 

war crime, why shouldn’t all trials be by military commission? 

Mr. JOHNSON. The administration believes that reformed military commissions 

are appropriate for trying our enemies for war crimes—with a long tradition dating 

back to the Revolutionary War. That does not mean, however, that we should ignore 

other available means to fight our enemy—including intelligence gathering, diplomacy, and traditional law enforcement, including prosecution in Federal court. The 

same conduct that constitutes a war crime may also constitute an offense under our 

criminal code. We need to use all elements of national power to combat terrorism, 

including all legitimate means to prosecute terrorists. Military commissions are one 

important option among many. So are Federal courts. 

Mr. KRIS. The administration believes that reformed military commissions are appropriate for trying our enemies for war crimes—with a long tradition dating back 

to the Revolutionary War. That does not mean, however, that we should ignore 

other available means to fight our enemy—including intelligence gathering, diplomacy, and traditional law enforcement, including prosecution in Federal court. The 

117 

same conduct that constitutes a war crime may also constitute an offense under our 

criminal code. We need to use all elements of national power to combat terrorism, 

including all legitimate means to prosecute terrorists. Military commissions are one 

important option among many. So are Federal courts. 

Admiral MACDONALD. As I said in question 25, it is a policy determination as to 

whether the Nation chooses to pursue a case in one forum or another. So long as 

the military commissions are fair, and we are able to accept trial of our own 

servicemembers before similar tribunals for allegations of war crimes brought by another country, I believe trial by military commission is appropriate. 

Admiral HUTSON. Because at its core, it is a crime. We don’t ask DOJ to fight 

our wars; we shouldn’t ask DOD to prosecute our criminal cases. 

General ALTENBURG. If your premise is that all terrorist attacks on civilians are 

war crimes, then certainly all such trials could be by military commission. This is 

not the case, however, as they are not necessarily violations of the law of war, and 

the UCMJ limits the use of military commissions to violations of the law of war. 

Moreover, the Supreme Court made clear in its Civil War-era cases that commissions could not be used to enforce domestic law against U.S. citizens when the 

courts are open and operating—a principle that is not applicable when U.S. citizens 

are tried for war crimes violations. Domestic terrorists such as Timothy McVeigh, 

Theodore Kaczynski, and Eric Rudolph carried out terrorist attacks on civilians to 

bring attention to their political agendas, but were U.S. citizens whose cases were 

properly handled as conventional criminal cases. 

Mr. MARCUS. I am uncomfortable with the notion of a permanent ‘‘war on terrorism.’’ I think it is more consistent with our own systems of civilian and military 

justice, as well as international law, to limit the use of military commissions to war 

crimes committed during an actual armed conflict. 

27. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, doesn’t use of different forums open 

the door for criticism that the United States is going back to a law enforcement 

focus on terrorism, or that military commissions are only for cases that can’t be successfully tried in Article III courts and therefore amount to ‘‘second-class justice?’’ 

Mr. JOHNSON. This administration is committed to using all instruments of national power to defeat terrorist extremists. This includes, but is not limited to, the 

prosecution of some terrorists in Article III courts. As the President said in his May 

21 National Archives speech, we are at war against al Qaeda, and military commissions have a long history in the United States dating back to George Washington 

and the Revolutionary War. They are an appropriate venue for trying detainees for 

violations of the laws of war, and we believe that some detainees should be prosecuted in the law-of-war context. Military commissions are not ‘‘second-class justice.’’ The differences between the rules and procedures in Article III courts and 

military commissions are designed to account for the different issues attendant to 

prosecuting law of war violations. These rules are different; they are not ‘‘secondclass.’’ We believe that section 1031 of the 2010 NDAA passed by the Senate on July 

23 is an important step toward additional reforms that are needed. 

Mr. KRIS. This administration is committed to using all instruments of national 

power to defeat terrorist extremists. This includes, but is not limited to, the prosecution of some terrorists in Article III courts. As the President said in his May 21 National Archives speech, we are at war against al Qaeda, and military commissions 

have a long history in the United States dating back to George Washington and the 

Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war, and we believe that some detainees should be prosecuted 

in the law-of-war context. Military commissions are not ‘‘second-class justice.’’ The 

differences between the rules and procedures in Article III courts and military commissions are designed to account for the different issues attendant to prosecuting 

law of war violations. These rules are different; they are not ‘‘second-class.’’ We believe that section 1031 of the 2010 NDAA passed by the Senate on July 23 is an 

important step toward additional reforms that are needed. 

Admiral MACDONALD. Domestically, individual States, DOJ, and the military 

often have overlapping jurisdiction, and determinations are made in individual cases 

as to which sovereign and which forum is appropriate. Rules, criminal statutes, and 

potential penalties vary between the jurisdictions, but all forums are considered 

‘‘fair.’’ Federal criminal disposition is often sought in some jurisdictions precisely because Federal statutes carry with them mandatory minimum sentences that are unavailable in state tribunals. 

In individual cases, different forums may be appropriate for different cases. So 

long as the military commissions are fair, and we are able to accept trial of our own 

118 

servicemembers before similar tribunals, trial by military commission is appropriate, and military commissions should not be viewed as ‘‘second-class justice.’’ 

Admiral HUTSON. Precisely so. 

General ALTENBURG. Yes, but only one would have any credibility to it. The issue 

of ‘‘going back to a law enforcement focus’’ suggests a binary choice which has long 

been discredited by most serious participants in this debate. The fight against al 

Qaeda in particular and terrorism in general certainly has a law enforcement component—witness the extraordinary work of the FBI among many other manifestations; it simply is not exclusively a law enforcement function. The danger of suggesting that commissions are a forum for second-class justice warrants the sober attention of law makers. Commissions long have functioned supplementary to the conventional court system because of the unique functions and features of this forum. 

A selection process that suggests that commissions are only employed for cases ‘‘too 

weak’’ for Article III courts will damage the functioning, credibility, and future use 

of this long-validated forum for bringing justice. Such inevitable criticisms can be 

alleviated by (1) referring only those cases strongly rooted in law of war violations 

to Military Commissions and (2) allowing a number of Military Commissions to complete their process without interruption so that the public has an opportunity to observe the military justice system at work. All facets of the Office of Military Commissions—the Prosecution, Defense, Judiciary, and Administrators—are staffed with 

talented, experienced professionals fiercely dedicated to producing full and fair 

trials. They deserve the opportunity to complete their mission. 

Mr. MARCUS. No. Our military commission procedures, if improved as the Committee proposes, are not ‘‘second-class justice’’; indeed, they would provide defendants with more procedural rights and protections than are available in the regular 

criminal justice systems of most other countries. If we candidly articulate the reasons why some cases are brought in Federal courts and others in military commissions, we should be able to rebut any allegations of this kind. 

DETAINEE TRIALS IN THE UNITED STATES

28. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, what are the advantages and disadvantages of holding trials in the United States? 

Mr. JOHNSON. Holding trials in the United States makes it possible to employ 

Federal courts, in addition to military commissions, to try those detainees who have 

committed Federal crimes. Federal courts have, on many occasions, proven to be an 

effective tool in our efforts to combat international terrorism, and the President has 

made clear that both Federal courts and military commissions should be available 

for this purpose. 

With regard to military commissions, it is not clear that moving them to the 

United States would have a significant impact on how they function as a legal matter, as basic due process protections may apply irrespective of the location of the 

commissions. Our goal is to create a military commissions system that is fair, effective, and legal, and that will survive appellate review, regardless of where the trials 

take place. 

Mr. KRIS. Holding trials in the United States makes it possible to employ Federal 

courts, in addition to military commissions, to try those detainees who have committed Federal crimes. Federal courts have, on many occasions, proven to be an effective tool in our efforts to combat international terrorism, and the President has 

made clear that both Federal courts and military commissions should be available 

for this purpose. 

With regard to military commissions, it is not clear that moving them to the 

United States would have a significant impact on how they function as a legal matter, as basic due process protections may apply irrespective of the location of the 

commissions. Our goal is to create a military commissions system that is fair, effective, and legal, and that will survive appellate review, regardless of where the trials 

take place. 

Admiral MACDONALD. My personal, professional opinion is that there would be no 

substantive legal differences between Military Commissions conducted inside the 

United States or in their current venue. 

Admiral HUTSON. I can’t think of any disadvantages, other than perhaps access 

to witnesses. The primary advantages are that this is where the courts are and 

Americans are victims of the crimes. 

General ALTENBURG. There are few, if any, advantages. Any site chosen to house 

prisoners pending Military Commission proceedings is likely to be in an isolated location more difficult to access than the relatively simple 3 hour flight from DC to 

119 

Guantanamo. Disadvantages include increased likelihood that local Federal courts 

would interject themselves into the detention process and provide a venue for potentially frivolous litigation as the Military Commissions cases move forward, a greatly 

increased security risk, especially when detainees are being transported to and from 

the detention location; the cost would be considerable to recreate the detention and 

trial facilities which already exist at Guantanamo. 

Mr. MARCUS. The advantages of holding military commission trials in the United 

States, rather than at GTMO, are substantial: First, we would no longer have to 

detain enemy combatants at GTMO, thus avoiding the international stigma that has 

arisen from the earlier problems there and that cannot be totally dissipated. Second, 

the logistics of trying cases in GTMO are daunting, particularly the problems of 

travel to GTMO and providing effective counsel to defendants. We will have a much 

easier time convincing the world of the fairness of our trials if they are held in the 

United States. 

29. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, would bringing the detainees into the 

United States for trial give them additional constitutional rights, such as the 5th 

Amendment due process concerns that recent media reports indicate were raised by 

the Office of Legal Counsel in May? 

Mr. JOHNSON. See our answer to question 17. We believe that, whether military 

commissions are convened in the United States or at Guantanamo, there is a significant risk, in light of the circumstances of the Guantanamo detainees, that courts 

will apply a baseline of due process protection in commission proceedings. This does 

not mean that courts will provide commission defendants with the same array of 

constitutional rights that defendants receive in Article III criminal trials. We do believe, however, that there is a significant risk courts would afford commission defendants with those due process protections that are ‘‘so rooted in the traditions and 

conscience of our people as to be ranked as fundamental,’’ Snyder v. Massachusetts, 

291 U.S. 97, 105 (1934), regardless of whether commission proceedings are held at 

Guantanamo Bay or in the United States. It is not clear that moving commission 

trials to the United States would have a significant impact on how they function 

as a legal matter, as basic due process protections may apply irrespective of their 

location. 

Mr. KRIS. See our answer to question 17. We believe that, whether military commissions are convened in the United States or at Guantanamo, there is a significant 

risk, in light of the circumstances of the Guantanamo detainees, that courts will 

apply a baseline of due process protection in commission proceedings. This does not 

mean that courts will provide commission defendants with the same array of constitutional rights that defendants receive in Article III criminal trials. We do believe, however, that there is a significant risk courts would afford commission defendants with those due process protections that are ‘‘so rooted in the traditions and 

conscience of our people as to be ranked as fundamental,’’ Snyder v. Massachusetts, 

291 U.S. 97, 105 (1934), regardless of whether commission proceedings are held at 

Guantanamo Bay or in the United States. It is not clear that moving commission 

trials to the United States would have a significant impact on how they function 

as a legal matter, as basic due process protections may apply irrespective of their 

location. 

Admiral MACDONALD. I am not aware of legal precedent, on point, for the proposition that the due process clause of the fifth amendment would apply to a prosecution of an alien unprivileged enemy belligerent before a Military Commission, 

whether convened within the United States or abroad. 

Admiral HUTSON. I believe the key to constitutional rights follows the courts and 

the nationality of the accused, not the location of the piece of ground upon which 

the court is situated. If we hold the courts out of CONUS just to avoid providing 

certain protections, the court is doomed to failure anyway. 

General ALTENBURG. Perhaps. Obviously no one knows this for sure, because no 

one can project with certainty the continued development of the line of cases that 

includes but predates Quirin but also includes Boumediene, which purports not to 

overturn Quirin or Eisentrager, but substantially weakens both of those precedents. 

Bringing the detainees to the United States presents new opportunities for innovative defense counsel and guarantees protracted litigation. 

Mr. MARCUS. I have not seen the OLC opinion. But my own view is that, while 

the issue of the constitutional due process rights of detainees in trials conducted at 

GTMO has not been ruled on by the courts, at the end of the day there are not likely to be significant differences between the constitutional rights that would apply 

at GTMO as opposed to the United States. 

120 

30. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, what happens to detainees who are 

found not guilty at trial? 

Mr. JOHNSON. As a matter of legal authority, the question of guilt or innocence 

in a criminal prosecution is separate from the authority to detain under the law of 

war. However, relying on law of war authority to detain an individual in the current 

conflict after he has been acquitted in Federal court or in a military commission 

raises serious policy questions that we are continuing to consider. We note that, in 

the last administration, two of the individuals who were tried by military commission and received short sentences were returned to their home countries post-conviction and later released. We believe that this option would be appropriate for detainees who are acquitted at trial, where consistent with national security and the interests of justice. 

Mr. KRIS. As a matter of legal authority, the question of guilt or innocence in a 

criminal prosecution is separate from the authority to detain under the law of war. 

However, relying on law of war authority to detain an individual in the current conflict after he has been acquitted in Federal court or in a military commission raises 

serious policy questions that we are continuing to consider. We note that, in the last 

administration, two of the individuals who were tried by military commission and 

received short sentences were returned to their home countries post-conviction and 

later released. We believe that this option would be appropriate for detainees who 

are acquitted at trial, where consistent with national security and the interests of 

justice. 

Admiral MACDONALD. Each case would have to be dealt with based on its own 

facts and circumstances. As a practical matter, a detainee acquitted before a Military Commission would continue to be held in detention under the laws of war and 

the Authorization to Use Military Force, until released by order of the executive or 

his duly authorized subordinate. The Executive’s order could be issued independently or in execution of a decision from a Federal court pursuant to a writ of habeas 

corpus. But the overarching point is that an acquittal does not, ipso facto, result 

in release if hostilities are still ongoing. 

Admiral HUTSON. They are legally not guilty of the crime(s) for which they were 

prosecuted. Whether they continue to be incarcerated would depend on other findings. ‘‘Not guilty’’ does not necessarily mean ‘‘innocent’’ although it may. 

General ALTENBURG. They might be transferred to the home country or another 

nation. They could be considered for inclusion in the group of detainees too dangerous to release. They remain eligible under the law of war to be detained as 

enemy combatants until the end of hostilities. If tried in Article III courts, they 

might then fall into the category of persons who revert to indefinite INS detention 

because they cannot be released to any other country; this would be similar to individuals who arrived in the USA during the Mariel Boat Lift. 

Mr. MARCUS. Theoretically, detainee combatants who are found not guilty at trial 

could continue to be detained until the end of the armed conflict. This would clearly 

be undesirable in most cases. But they would not in any event be entitled to release 

in the United States. As far as I know, none of the GTMO detainees are lawful residents of the United States, and they could therefore be detained as unlawful immigrants and deported. 

31. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, does a not guilty verdict at a trial conducted in the United States increase the chances that a detainee would be ordered 

released into the United States? 

Mr. JOHNSON. See the answer to question 2. As the President has stated, this administration will not choose to release any detainee into the United States who will 

endanger the American people. As noted in the answer to question 30, in the event 

a detainee is acquitted, it may be appropriate to transfer the detainee to his home 

country or a third country, where consistent with national security and applicable 

laws. 

Mr. KRIS. See the answer to question 2. As the President has stated, this administration will not choose to release any detainee into the United States who will endanger the American people. As noted in the answer to question 30, in the event 

a detainee is acquitted, it may be appropriate to transfer the detainee to his home 

country or a third country, where consistent with national security and applicable 

laws. 

Admiral MACDONALD. In my opinion it would not. The detainees at Guantanamo 

already have full access to habeas review in Federal courts under the Boumediene 

decision, and I am unaware of legal precedent for the proposition that they would 

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quitted at a Military Commission held in the United States as opposed to the existing venue. 

Admiral HUTSON. I don’t believe so. The person, if released, should still be repatriated. 

General ALTENBURG. Yes. 

Mr. MARCUS. No. See answer to question 30. 

POST-TRIAL DETENTION

32. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, where should detainees who are convicted be incarcerated? 

Mr. JOHNSON. We are currently examining a number of different options for housing detainees. We can assure you that we will not move any detainees into the 

United States unless and until we are convinced that they will be held safely and 

securely in a facility or facilities that satisfy all of our security concerns and meet 

our legal obligations regarding treatment of the detainees. 

Mr. KRIS. We are currently examining a number of different options for housing 

detainees. We can assure you that we will not move any detainees into the United 

States unless and until we are convinced that they will be held safely and securely 

in a facility or facilities that satisfy all of our security concerns and meet our legal 

obligations regarding treatment of the detainees. 

Admiral MACDONALD. I believe this question is being considered by the detention 

policy task force established by the President, and it would not be appropriate for 

me to offer my personal opinion at this juncture. 

Admiral HUTSON. Either in the United States or in a U.S. run prison in their 

country of origin. 

General ALTENBURG. Wherever they can be efficiently housed and secured without 

any chance of escape. Many facilities, including Guantanamo, provide such security. 

In fact, other than its reputation in some quarters, Guantanamo today is a model 

prison facility, as observed by the Attorney General after his visit to Guantanamo 

in January. 

Mr. MARCUS. Those convicted by military commissions should be incarcerated in 

a high-security military prison in the United States or a high-security Federal prison. Those convicted in Federal courts should be detained in a high-security Federal 

prison. 

DETENTION REVIEW PROCESS

33. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, what sort of system of review should 

apply to those detainees who we cannot try, but who are too dangerous to release? 

Mr. JOHNSON. See the answers to questions 2 and 22. As the President stated in 

his May 21 speech at the National Archives, for any detainees that may fall into 

this category, we will have ‘‘a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.’’ We are currently in the process of determining the precise details of the periodic reviews. 

Mr. KRIS. See the answers to questions 2 and 22. As the President stated in his 

May 21 speech at the National Archives, for any detainees that may fall into this 

category, we will have ‘‘a thorough process of periodic review, so that any prolonged 

detention is carefully evaluated and justified.’’ We are currently in the process of 

determining the precise details of the periodic reviews. 

Admiral MACDONALD. Like the previous question, I believe this subject is being 

considered by the detention policy task force and I would not want to offer a personal opinion. 

However, as I answered in an earlier question, I believe the President has authority to detain unprivileged belligerents for the duration of hostilities. I also accept, 

as a general matter, that in a common Article III armed conflict, as the duration 

of hostilities and length of detention extend over years, the humane treatment obligations require greater levels of review, and additional accommodations must be 

made in the conditions of detention. In this regard, I support the findings and recommendation made in the Walsh report. 

Admiral HUTSON. I am not convinced that such persons exist, although I realize 

that may be true. If they do, it should be a periodic, independent review. 

General ALTENBURG. A review tribunal similar to the CSRTs, with the decision 

ultimately made by the Secretary of Defense in consultation with the Attorney General. 

122 

Mr. MARCUS. The current CSRT review system is inadequate. Given the length 

of detention, we need a more independent system of regular reviews, focusing on 

continuing dangerousness, and with a presumption in favor of release after a specified period of time (say 10 or 15 years) has elapsed. I would favor annual review 

hearings conducted by a Federal court or some new independent body, with a right 

to military and civilian counsel for the detainee. 

34. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should military judges and lawyers be 

provided to the detainee for a parole board on a periodic basis? 

Mr. JOHNSON. See the answer to question 33. For any detainees that fall into this 

category the President has committed to ‘‘a thorough process of periodic review, so 

that any prolonged detention is carefully evaluated and justified.’’ We are currently 

in the process of determining the precise details of the periodic reviews. 

Mr. KRIS. See the answer to question 33. For any detainees that fall into this category the President has committed to ‘‘a thorough process of periodic review, so that 

any prolonged detention is carefully evaluated and justified.’’ We are currently in 

the process of determining the precise detaiIs of the periodic reviews. 

Admiral MACDONALD. This question also goes to a matter that is now under review by the detainee policy task force. I can’t comment on the concept of parole 

boards, but as I noted in the last question, I do believe that as the length of detention extends over a period of years, our obligations to ensure humane treatment 

under common Article III include making additional accommodations in the conditions of detention and in the review process. 

Admiral HUTSON. Parole boards for convicted detainees should be conducted like 

any other Federal parole board. 

General ALTENBURG. For periodic review of indefinite detention, attorneys should 

be provided, but never judges. For those convicted by the Military Commissions, parole should not be available to shorten an imposed sentence. This is consistent with 

Federal practice which has abolished parole. Seeking Presidential clemency could be 

a possible course of action. 

Mr. MARCUS. Yes. 

35. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, who should get this special long-term 

detention review process? Those detainees at Guantanamo? Those at Bagram captured off the battlefield? All detainees held long-term? 

Mr. JOHNSON. See the answers to questions 2, 22, and 33. As the President has 

stated, any Guantanamo detainees who continue to be detained, where authorized 

by Congress and consistent with the law of war, will be afforded periodic reviews, 

so that any prolonged detention can be carefully evaluated and justified. New review 

procedures are also being put in place at the Bagram Theater Internment Facility, 

under which detainees held there will be provided biannual review of their detention. 

Mr. KRIS. See the answers to questions 2, 22, and 33. As the President has stated, 

any Guantanamo detainees who continue to be detained, where authorized by Congress and consistent with the law of war, will be afforded periodic reviews, so that 

any prolonged detention can be carefully evaluated and justified. New review procedures are also being put in place at the Bagram Theater Internment Facility, under 

which detainees held there will be provided biannual review of their detention. 

Admiral MACDONALD. This question is also under review by the administration. 

As I answered earlier, under the laws of war, unprivileged enemy belligerents may 

be detained for the duration of hostilities. I also believe that the obligation under 

the laws of war to treat detainees humanely includes a requirement to make additional accommodations in the conditions of detention and in the review process, as 

detention extends over a period of many years. In this regard I support the findings 

and recommendations in the Walsh report. 

Admiral HUTSON. All detainees held long term. Again, location should not be determinative. 

General ALTENBURG. All detainees held long term. No system which allows the 

government to avoid detention review by simply moving the prisoner to a different 

location should be accepted as legitimate. 

Mr. MARCUS. I would favor this beefed-up review process for all GTMO detainees 

who continue to be detained and for all non-battlefield detainees at Bagram. 

36. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should detainees who were captured 

123 

off the battlefield, but held at Bagram or other battlefield internment facilities, ever 

be granted the right to an Article III court review of their detention? 

Mr. JOHNSON. As we have argued in Maqaleh v. Gates, we do not believe that habeas rights extend to detainees captured outside of Afghanistan and transferred to 

Bagram for detention. Judicial review of detention on the battlefield in a theater 

of active military operations overseas raises significant operational concerns that 

are not present with respect to review of detention at Guantanamo Bay. 

Mr. KRIS. As we have argued in Maqaleh v. Gates, we do not believe that habeas 

rights extend to detainees captured outside of Afghanistan and transferred to 

Bagram for detention. Judicial review of detention on the battlefield in a theater 

of active military operations overseas raises significant operational concerns that 

are not present with respect to review of detention at Guantanamo Bay. 

Admiral MACDONALD. This question is now being litigated in Federal court in the 

Malaqeh v. Gates case, and I cannot comment. 

Admiral HUTSON. Yes, unless we can devise a better system that the sham CSRTs 

have proven to be. 

General ALTENBURG. This result is likely unless Congress acts to provide for administrative review of long-term detentions in all overseas facilities. 

Mr. MARCUS. At least one District Judge, John Bates, has held that habeas review 

in Article III courts is available to such detainees. While the D.C. Circuit and the 

Supreme Court have not addressed this question, I agree with Judge Bates’s opinion. 

HABEAS CORPUS REVIEW

37. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should a National Security Court be 

created to hear habeas corpus petitions or appeals of long-term detention? 

Mr. JOHNSON. Almost all of the Guantanamo detainees now have pending habeas 

cases in Federal court. We believe that this review is rigorous, independent, and effective as a means of establishing the lawfulness of the detentions, and that it 

should continue without any effort to evade or displace such review. We have not 

identified a need for a new National Security Court. 

Mr. KRIS. Almost all of the Guantanamo detainees now have pending habeas 

cases in Federal court. We believe that this review is rigorous, independent, and effective as a means of establishing the lawfulness of the detentions, and that it 

should continue without any effort to evade or displace such review. We have not 

identified a need for a new National Security Court. 

Admiral MACDONALD. I do not think such a court is necessary, and I note that 

all of the Guantanamo detainees already have habeas cases in Federal court, thus 

their long-term detention is already receiving judicial review. 

Admiral HUTSON. No, I am not in favor of creating new courts. Existing courts 

are more than adequate and certainly better than a newly created court. All these 

are simply schemes to avoid ‘‘real’’ courts which have a proven record over the years 

of fairness with many, many successful prosecutions. 

General ALTENBURG. There is merit in the concept of designating a particular 

court to hear FISA requests and try terrorism cases; it can build specific facilities 

and provide trained judges for these types of cases. The creation of such a legal system will take many years and likely create substantial litigation, as illustrated by 

the time and litigation generated in the creation of the military commission legal 

system. 

Mr. MARCUS. No. While there are some good arguments for a National Security 

Court, there are strong arguments against it, and the District Court for the District 

of Columbia is in effect becoming a specialized (and effective) national security court 

through its handling of the habeas cases. 

38. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, should Congress create uniform rules 

and procedures for conducting habeas corpus review for detainees? 

Mr. JOHNSON. Habeas corpus review of Guantanamo detentions is rigorous, independent, and effective as a means of establishing the lawfulness of the detentions. 

The cases are proceeding before judges in the District Court of the District of Columbia under a case management order, and many issues are being coordinated by 

the judges. We think this review should be allowed to continue, without any effort 

to evade or displace such review. We expect that any legislation adopted by Congress to regulate habeas corpus review of Guantanamo detentions for existing cases 

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would result in delays in resolving these cases and litigation over the proper interpretation, and perhaps the constitutionality, of any rules and procedures adopted. 

Mr. KRIS. Habeas corpus review of Guantanamo detentions is rigorous, independent, and effective as a means of establishing the lawfulness of the detentions. 

The cases are proceeding before judges in the District Court of the District of Columbia under a case management order, and many issues are being coordinated by 

the judges. We think this review should be allowed to continue, without any effort 

to evade or displace such review. We expect that any legislation adopted by Congress to regulate habeas corpus review of Guantanamo detentions for existing cases 

would result in delays in resolving these cases and litigation over the proper interpretation, and perhaps the constitutionality, of any rules and procedures adopted. 

Admiral MACDONALD. It would be beneficial to have clear, uniform standards of 

review and procedure, and application of the laws of war as the substantive body 

of law controlling habeas decisions. The post-Boumediene decisions within the U.S. 

District Court for the District of Columbia and the U.S. Court of Appeals for the 

D.C. Circuit have been encouraging on this point, and thus it may be unnecessary 

for Congress to intervene. 

Admiral HUTSON. No. 

General ALTENBURG. Yes. 

Mr. MARCUS. The District Court for the District of Columbia is doing a good job 

of developing effective and fair procedures. While there are some differences among 

the judges of that Court, they are not significant and they will be minimized over 

time as appeals are taken to the D.C. Circuit. Congress should watch these developments closely to see if legislation establishing uniform procedures is necessary or 

desirable. 

39. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, if Congress did enact such rules and 

procedures, what would happen to the existing assignment of habeas cases and the 

case management orders currently governing those hearings? 

Mr. JOHNSON. The effect on existing cases of any legislation adopted by Congress 

to regulate habeas corpus review of Guantanamo detentions would depend on what 

rules and procedures were enacted. At a minimum, we expect such legislation would 

result in delays in resolving these cases and litigation over the proper interpretation 

of, and perhaps the constitutionality, of any rules and procedures adopted. 

Mr. KRIS. The effect on existing cases of any legislation adopted by Congress to 

regulate habeas corpus review of Guantanamo detentions would depend on what 

rules and procedures were enacted. At a minimum, we expect such legislation would 

result in delays in resolving these cases and litigation over the proper interpretation 

of, and perhaps the constitutionality, of any rules and procedures adopted. 

Admiral MACDONALD. Because the effect of legislation to regulate habeas corpus 

review would depend on the exact rules and procedures enacted, it is impossible to 

predict what would happen to existing cases. Legislative changes could result in 

delays as courts are asked to review and interpret any new rules and procedures. 

Admiral HUTSON. I don’t know. 

General ALTENBURG. Congress should address this issue directly in enacting rules 

and procedures. 

Mr. MARCUS. If Congress legislated in this area, the courts would be bound except 

to the extent that they determined that the legislated rules and procedures were 

unconstitutional. 

40. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, how does habeas corpus fit with a system of long-term detention review? 

Mr. JOHNSON. Habeas corpus review is playing an important role in ensuring that 

Guantanamo detention decisions are lawful. As the President has stated, prolonged 

detention of these individuals should not be the decision of any one person. Habeas 

review for Guantanamo detainees helps establish the lawfulness of our detention decisions and ensure that we can justify to an independent branch of government our 

decisions about who can be detained. The administration believes that habeas review of the Guantanamo detentions should continue, without any effort to evade or 

displace that review. 

Mr. KRIS. Habeas corpus review is playing an important role in ensuring that 

Guantanamo detention decisions are lawful. As the President has stated, prolonged 

detention of these individuals should not be the decision of any one person. Habeas 

review for Guantanamo detainees helps establish the lawfulness of our detention decisions and ensure that we can justify to an independent branch of government our 

decisions about who can be detained. The administration believes that habeas reVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00128 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
125 

view of the Guantanamo detentions should continue, without any effort to evade or 

displace that review. 

Admiral MACDONALD. Habeas reviews of Guantanamo detainees following the 

Boumediene decision have applied the laws of war as the substantive body of law 

controlling the lawfulness of detention. I believe the courts are correct in so applying the laws of war. While this has worked well, so far, in the Guantanamo cases, 

I do not believe habeas should apply to detentions in areas of active hostilities. 

Admiral HUTSON. Probably so. 

General ALTENBURG. Long-term detention of those individuals who are not tried 

by Article III courts or military commissions should require regular periodic reviews 

of the basis for their continued detention. Obviously, prisoners will challenge such 

review through the habeas process; this underscores the importance of providing 

periodic reviews which will stand up to such scrutiny by the district courts. 

Mr. MARCUS. Habeas corpus would still be an important avenue for the courts to 

determine whether initial and continued detention was lawful. Improved procedures 

for making those determinations by the military should, over time, reduce the habeas burden on the Government and the courts. 

41. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, is habeas a separate process or should 

successive habeas petitions by detainees serve as independent court review of longterm detention? 

Mr. JOHNSON. See the answer to question 40. Habeas corpus review is playing an 

important role in ensuring that Guantanamo detention decisions are lawful. Even 

after a habeas court has upheld the lawfulness of detention, the detainee will be 

afforded periodic administrative reviews, so that any prolonged detention will be 

carefully evaluated and justified. 

Mr. KRIS. See the answer to question 40. Habeas corpus review is playing an important role in ensuring that Guantanamo detention decisions are lawful. Even after 

a habeas court has upheld the lawfulness of detention, the detainee will be afforded 

periodic administrative reviews, so that any prolonged detention will be carefully 

evaluated and justified. 

Admiral MACDONALD. In my view, habeas should be a separate process, focused 

on whether the Executive’s detention of a particular detainee-petitioner complies 

with the laws of war. 

Admiral HUTSON. I’m sorry, but I’m not sure I understand the question adequately to intelligently answer. 

General ALTENBURG. Habeas is a separate civil proceeding with a specific statutory role in our criminal justice system. It should remain separate from the development of a systemic review of long-term detention. 

Mr. MARCUS. If Congress establishes an adequate process for direct review of 

long-term detention decisions, or provides for those decisions to be made by a Federal court, there should be no need for separate habeas proceedings. 

RETURN TO THE FIGHT

42. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, how can we best ensure that those detainees who are released to another country don’t return to the fight? 

Mr. JOHNSON. The United States Government employs a number of methods to 

help prevent former detainees from returning to the fight. When we transfer a detainee from Guantanamo we seek any necessary security assurances from the receiving country to mitigate possible threats posed by the transferred detainee. Part 

of our assessment in transferring a detainee to another country is whether a country will issue such security assurances and whether that country has the capability 

of fulfilling those assurances. In addition, the United States has transferred detainees to countries that have used rehabilitation programs to help mitigate the risk of 

returning to the fight. The United States also continues to work with our allies and 

partners to share intelligence, conduct cooperative security operations, and collect 

biometrics to prevent re-entry into the United States. 

Mr. KRIS. The United States Government employs a number of methods to help 

prevent former detainees from returning to the fight. When we transfer a detainee 

from Guantanamo we seek any necessary security assurances from the receiving 

country to mitigate possible threats posed by the transferred detainee. Part of our 

assessment in transferring a detainee to another country is whether a country will 

issue such security assurances and whether that country has the capability of fulfilling those assurances. In addition, the United States has transferred detainees to 

126 

countries that have used rehabilitation programs to help mitigate the risk of returning to the fight. The United States also continues to work with our allies and partners to share intelligence, conduct cooperative security operations, and collect biometrics to prevent re-entry into the United States. 

Admiral MACDONALD. Each case must be assessed individually and risk mitigation plans tailored accordingly. As a general matter, the executive branch seeks to 

receive security assurances from the receiving State and, in appropriate cases, assurances that rehabilitation programs will be employed. 

Admiral HUTSON. We can never guarantee that but we can best ensure it by providing fair trials and rehabilitation during incarceration. Warehousing people and 

trying them in sham trials will ensure they do return to the fight, or even engage 

in it for the first time. 

General ALTENBURG. Release only to nations we trust to monitor them. 

Mr. MARCUS. This is a question best addressed to the administration witnesses. 

The best guarantee is effective agreements with foreign countries for rehabilitation 

and monitoring of former detainees. 

CLOSING GUANTANAMO

43. Senator MCCAIN. Mr. Johnson, Mr. Kris, Admiral MacDonald, Admiral 

Hutson, General Altenburg, and Mr. Marcus, if all the detainees cannot be tried or 

repatriated to another country by January 2010, what should we do about closing 

Guantanamo? 

Mr. JOHNSON. As the President has stated, rather than keeping us safe, the prison at Guantanamo Bay has weakened our national security by serving as a rallying 

cry for our enemies and reducing the willingness of our allies to work with us in 

fighting an enemy that operates in multiple countries. A bipartisan group of current 

and former senior U.S. Government officials and military leaders has called for the 

closure of the detention facility at Guantanamo Bay to enhance our national security, and this administration is determined to accomplish this within the 1 year 

timeframe directed by the President. We are actively working to prosecute as many 

detainees as possible before our Federal courts or in reformed military commissions, 

as well as to transfer to other countries those detainees who can safely be transferred. If there are some who can neither be prosecuted nor safely transferred, the 

President has made clear that ‘‘[w]e must have clear, defensible, and lawful standards’’ and ‘‘a thorough process of periodic review, so that any prolonged detention 

is carefully evaluated and justified.’’ Any such detention of the detainees currently 

at Guantanamo would be based on authorization from Congress, i.e., the 2001 

AUMF. See our answers to Questions 2, 22, and 33. 

Mr. KRIS. As the President has stated, rather than keeping us safe, the prison 

at Guantanamo Bay has weakened our national security by serving as a rallying 

cry for our enemies and reducing the willingness of our allies to work with us in 

fighting an enemy that operates in multiple countries. A bipartisan group of current 

and former senior U.S. Government officials and military leaders has called for the 

closure of the detention facility at Guantanamo Bay to enhance our national security, and this administration is determined to accomplish this within the 1 year 

timeframe directed by the President. We are actively working to prosecute as many 

detainees as possible before our Federal courts or in reformed military commissions, 

as well as to transfer to other countries those detainees who can safely be transferred. If there are some who can neither be prosecuted nor safely transferred, the 

President has made clear that ‘‘[w]e must have clear, defensible, and lawful standards’’ and ‘‘a thorough process of periodic review, so that any prolonged detention 

is carefully evaluated and justified.’’ Any such detention of the detainees currently 

at Guantanamo would be based on authorization from Congress, i.e., the 2001 

AUMF. See our answers to Questions 2, 22, and 33. 

Admiral MACDONALD. The President issued an Executive order on 22 January 

2009 directing the closure of detention facilities at Guantanamo no later than 1 year 

after the date of that order. As a uniformed officer, it would not be appropriate for 

me to speculate about alternatives that are inconsistent with the President’s order. 

Admiral HUTSON. Close it and imprison the detainees elsewhere. 

General ALTENBURG. The totality of the previous administration’s practices and 

policies regarding detainees has produced unwarranted demonization of the facilities at Guantanamo. The confinement and court complexes recently constructed 

there are state of the art; all Americans should be proud of those facilities and the 

dedicated men and women who operate them. Guantanamo provides the current administration with a safe, secure, modern facility which should be re-considered as 

an option for detaining belligerents and conducting military commissions. 

127 

Mr. MARCUS. We should still close GTMO and transfer the remaining detainees 

to military prisons in the United States. 

QUESTIONS SUBMITTED BY SENATOR JAMES M. INHOFE

POST-TRIAL

44. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, assuming 

military commissions are held at Guantanamo, where will detainees who are convicted serve out their sentence—in the United States or somewhere else? 

Mr. JOHNSON. This determination will likely be made on a case-by-case basis. Of 

the three individuals who have been convicted by military commissions to date, two 

were returned to their home countries, and one remains in United States custody 

at Guantanamo. 

Mr. KRIS. This determination will likely be made on a case-by-case basis. Of the 

three individuals who have been convicted by military commissions to date, two 

were returned to their home countries, and one remains in U.S. custody at Guantanamo. 

Admiral MACDONALD. This is a matter currently under review by the administration and it is not a matter under my cognizance. 

45. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, Federal Bureau of Investigation Director Robert Mueller said there is the very real possibility 

that the Guantanamo detainees will recruit more terrorists from among the Federal 

inmate population and continue al Qaeda operations from the inside. What is the 

impact of placing detainees in the U.S. prison system—pre-trial and post-trial? 

Mr. JOHNSON. We are currently examining a number of different options for housing Guantanamo detainees, including the possibility of housing them in facilities 

separate and apart from the Federal inmate population. There are sound legal and 

policy reasons to house any detainees held under law of war authority separately 

from criminal prisoners. In the event that any Guantanamo detainees are held in 

proximity to Federal inmates, special administrative measures (SAMs) are available 

where necessary and appropriate to restrict their communications, isolate them 

from other prisoners, and prevent violence to any person. See 28 CFR 501.3. 

Mr. KRIS. We are currently examining a number of different options for housing 

Guantanamo detainees, including the possibility of housing them in facilities separate and apart from the Federal inmate population. There are sound legal and policy reasons to house any detainees held under law of war authority separately from 

criminal prisoners. In the event that any Guantanamo detainees are held in proximity to Federal inmates, special administrative measures (SAMs) are available 

where necessary and appropriate to restrict their communications, isolate them 

from other prisoners, and prevent violence to any person. See 28 CFR 501.3. 

Admiral MACDONALD. I respectfully defer to the administration on this question, 

as it is not a matter under my cognizance. 

46. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, has an assessment been done to determine the risk of escape as well as potentially creating 

targets in the United States for terrorist attacks? 

Mr. JOHNSON. We will not move any detainees into the United States unless and 

until we are convinced that the detainees will be held safely and securely in a facility that satisfies all of our security concerns. We note that 33 international terrorists are currently housed in the Bureau of Prisons’ administrative maximum (ADX) 

facility, sometimes referred to as ‘‘supermax.’’ Nobody has ever escaped from the 

ADX. 

Mr. KRIS. We will not move any detainees into the United States unless and until 

we are convinced that the detainees will be held safely and securely in a facility 

that satisfies all of our security concerns. We note that 33 international terrorists 

are currently housed in the Bureau of Prisons’ administrative maximum (ADX) facility, sometimes referred to as ‘‘supermax.’’ Nobody has ever escaped from the ADX. 

Admiral MACDONALD. I respectfully defer to the administration on this question, 

as a risk assessment of this sort is not under my cognizance. 

47. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, will Guantanamo detainees be segregated from the regular prison population? 

Mr. JOHNSON. We are currently examining a number of different options for housing Guantanamo detainees, including the possibility of housing them in facilities 

separate and apart from the Federal inmate population. There are sound legal and 

128 

policy reasons to house any detainees held under law of war authority separately 

from criminal prisoners. 

Mr. KRIS. We are currently examining a number of different options for housing 

Guantanamo detainees, including the possibility of housing them in facilities separate and apart from the Federal inmate population. There are sound legal and policy reasons to house any detainees held under law of war authority separately from 

criminal prisoners. 

Admiral MACDONALD. I defer to the administration on this question as it is not 

a matter under my cognizance. 

48. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, currently, 

the United States has only one Supermax facility and it is located in Florence, Colorado. According to a Bureau of Prisons official, ‘‘only one bed was not filled at 

Supermax’’ as of May 21. What facilities exist in the United States today that can 

hold these detainees? 

Mr. JOHNSON. As the administration works toward closing the detention facility 

at Guantanamo Bay, Cuba, we are carefully considering the various options as to 

where detainees could be housed. These deliberations are ongoing, and therefore it 

would be inappropriate to comment or speculate as to the outcome of that determination or to discuss specific facilities. We can assure you, however, that we will 

not move any detainees into the United States unless and until we are convinced 

that the detainees will be held safely and securely in a facility that satisfies all of 

our security concerns and meets our legal obligations regarding treatment of the detainees. 

Mr. KRIS. As the administration works toward closing the detention facility at 

Guantanamo Bay, Cuba, we are carefully considering the various options as to 

where detainees could be housed. These deliberations are ongoing, and therefore it 

would be inappropriate to comment or speculate as to the outcome of that determination or to discuss specific facilities. We can assure you, however, that we will 

not move any detainees into the United States unless and until we are convinced 

that the detainees will be held safely and securely in a facility that satisfies all of 

our security concerns and meets our legal obligations regarding treatment of the detainees. 

Admiral MACDONALD. It is my understanding that the subject matter of this question is under review by the administration and it is not a matter within my cognizance. Therefore, I respectfully defer to the administration. 

49. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, today the 

Guantanamo detainees are held under well-established laws of war permitting belligerents to confine captured enemies until hostilities are over. What if a detainee 

is found not guilty—where will he be released? 

Mr. JOHNSON. As a matter of legal authority, the question of guilt or innocence 

in a criminal prosecution is separate from the authority to detain under the law of 

war. However, relying on law of war authority to detain an individual in the current 

conflict after he has been acquitted in Federal court or in a military commission 

raises serious policy questions that we are continuing to consider. We note that, in 

the last administration, two of the individuals who were tried by military commission and received short sentences were returned to their home countries post-conviction and later released. We believe that this option would be appropriate for detainees who are acquitted at trial, where consistent with national security and the interests of justice. 

Mr. KRIS. As a matter of legal authority, the question of guilt or innocence in a 

criminal prosecution is separate from the authority to detain under the law of war. 

However, relying on law of war authority to detain an individual in the current conflict after he has been acquitted in Federal court or in a military commission raises 

serious policy questions that we are continuing to consider. We note that, in the last 

administration, two of the individuals who were tried by military commission and 

received short sentences were returned to their home countries post-conviction and 

later released. We believe that this option would be appropriate for detainees who 

are acquitted at trial, where consistent with national security and the interests of 

justice. 

Admiral MACDONALD. As I answered in response to Senator McCain (see question 

# 30), each case would have to be dealt with based on its own facts and circumstances. As a practical matter, a detainee acquitted before a Military Commission would continue to be held in detention under the laws of war and the Authorization to Use Military Force, until released by order of the executive or his duly 

authorized subordinate. The Executive’s order could be issued independently or in 

execution of a decision from a Federal court pursuant to a writ of habeas corpus. 

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But the overarching point is that an acquittal does not, ipso facto, result in release 

if hostilities are still ongoing. 

50. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, what does 

the administration plan to do when a Federal judge orders the release of a detainee 

but who the administration knows is too dangerous to release or transfer? 

Mr. JOHNSON. As the President has stated, the United States is a nation of laws 

and we must abide by court rulings. At the same time, the administration will not 

voluntarily release into the United States any detainees who would endanger the 

American people. If a detainee is ordered released by a habeas court, we will work 

to develop transfer or resettlement options that satisfy our security concerns, consistent with the rulings of the court. Moreover, as noted above, for detainees in the 

United States, authority to detain individuals under the immigration laws pending 

their removal, particularly where they pose a threat to national security, is an additional mechanism that may be used if necessary to ensure that detainees will not 

endanger our citizens. 

Mr. KRIS. As the President has stated, the United States is a nation of laws and 

we must abide by court rulings. At the same time, the administration will not voluntarily release into the United States any detainees who would endanger the American people. If a detainee is ordered released by a habeas court, we will work to develop transfer or resettlement options that satisfy our security concerns, consistent 

with the rulings of the court. Moreover, as noted above, for detainees in the United 

States, authority to detain individuals under the immigration laws pending their removal, particularly where they pose a threat to national security, is an additional 

mechanism that may be used if necessary to ensure that detainees will not endanger our citizens. 

Admiral MACDONALD. If a Federal judge orders the release of a detainee, the government would comply with the order to the fullest of its ability or seek to appeal 

to a higher court. 

51. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, what do you 

do with a detainee you cannot try or release due to national security concerns? 

Mr. JOHNSON. As the President stated in his National Archives address, although 

we are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country, there may ultimately be a category of 

Guantanamo detainees ‘‘who cannot be prosecuted for past crimes,’’ but ‘‘who nonetheless pose a threat to the security of the United States’’ and ‘‘in effect, remain 

at war with the United States.’’ For the detainees at Guantanamo, the President 

has stated that ’’[w]e must have clear, defensible, and lawful standards’’ and ‘‘a 

thorough process of periodic review, so that any prolonged detention is carefully 

evaluated and justified.’’ Any such detention will be based on authorization from 

Congress, i.e., the 2001 AUMF. As the Supreme Court held in Hamdi v. Rumsfeld, and as the administration has explained in filings in recent habeas cases, the detention authority Congress has conferred under the AUMF should be informed by the 

laws of war, which have long permitted detention of enemy forces to ensure that 

they not return to the fight. 

Mr. KRIS. As the President stated in his National Archives address, although we 

are going to exhaust every avenue that we have to prosecute those at Guantanamo 

who pose a danger to our country, there may ultimately be a category of Guantanamo detainees ‘‘who cannot be prosecuted for past crimes,’’ but ‘‘who nonetheless 

pose a threat to the security of the United States’’ and ‘‘in effect, remain at war with 

the United States.’’ For the detainees at Guantanamo, the President has stated that 

‘‘[w]e must have clear, defensible, and lawful standards’’ and ‘‘a thorough process 

of periodic review, so that any prolonged detention is carefully evaluated and justified.’’ Any such detention will be based on authorization from Congress, i.e., the 

2001 AUMF. As the Supreme Court held in Hamdi v. Rumsfeld, and as the administration has explained in filings in recent habeas cases, the detention authority Congress has conferred under the AUMF should be informed by the laws of war, which 

have long permitted detention of enemy forces to ensure that they not return to the 

fight. 

Admiral MACDONALD. The laws of war and the AUMF do not require that 

unprivileged enemy belligerents be referred to trial or released. They may be detained for the duration of hostilities. 

52. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, what is the 

risk of releasing Guantanamo detainees given the recidivism rate is 1 in 7? 

Mr. JOHNSON. There are always risks in releasing detainees, whether from Guantanamo, or in Iraq or Afghanistan, or from our Federal prisons. Recidivism is always 

130 

a possibility. The prior administration released and transferred abroad well over 

500 detainees from Guantanamo Bay, and some have returned to the fight. But the 

United States does everything it can to mitigate these risks, including seeking any 

necessary security assurances from the receiving country, arranging for detainees 

to enter rehabilitation programs, and collecting biometrics to prevent re-entry into 

the United States. In reviewing a detainee for transfer, release, prosecution, or detention, our primary concerns are always our national security interests, the safety 

of the America people, and the rule of law. 

Mr. KRIS. There are always risks in releasing detainees, whether from Guantanamo, or in Iraq or Afghanistan, or from our Federal prisons. Recidivism is always 

a possibility. The prior administration released and transferred abroad well over 

500 detainees from Guantanamo Bay, and some have returned to the fight. But the 

United States does everything it can to mitigate these risks, including seeking any 

necessary security assurances from the receiving country, arranging for detainees 

to enter rehabilitation programs, and collecting biometrics to prevent re-entry into 

the United States. In reviewing a detainee for transfer, release, prosecution, or detention, our primary concerns are always our national security interests, the safety 

of the American people, and the rule of law. 

Admiral MACDONALD. The risk of releasing Guantanamo detainees is that some 

may return to the battle. That risk is taken into account in the review process of 

individual cases. As a general matter, if a detainee is to be released to another country, the executive branch seeks to receive security assurances from the receiving 

State and, in appropriate cases, assurances that rehabilitation programs will be employed. 

53. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, when does 

the administration plan to ask permission from Congress to authorize long-term detention of detainees? 

Mr. JOHNSON. Congress has already provided authorization through the AUMF to 

detain persons who the President determines planned, authorized, committed, or 

aided the terrorist attacks that occurred on September 11, 2001, persons who harbored those responsible for those attacks, and persons who were part of, or substantially supported, Taliban or al Qaeda forces or associated forces that are engaged 

in hostilities against the United States or its coalition partners. Habeas courts are 

actively reviewing the government’s detention decisions with respect to Guantanamo 

detainees. The administration is not currently seeking additional authorization. 

Mr. KRIS. Congress has already provided authorization through the AUMF to detain persons who the President determines planned, authorized, committed, or aided 

the terrorist attacks that occurred on September 11, 2001, persons who harbored 

those responsible for those attacks, and persons who were part of, or substantially 

supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners. Habeas courts are actively 

reviewing the government’s detention decisions with respect to Guantanamo detainees. The administration is not currently seeking additional authorization. 

Admiral MACDONALD. I respectfully defer to the administration on any question 

concerning the administration’s intentions regarding possible introduction of legislation relating to detainees. 

TRIAL LOCATION

54. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, the Expeditionary Legal Complex (ELC) provides a secure location to secure and try detainees 

charged by the U.S. Government, full access to sensitive and classified information, 

full access to defense lawyers and prosecution, and full media access by the press. 

Moving detainees to prisons in the United States as well as trying them in the 

United States will require a significant investment and re-structuring of our existing detention facilities. In 2002, an entire wing of a jail in Alexandria, Virginia, was 

cleared out for the September 11 ‘‘20th Hijacker,’’ Zacarias Moussaoui, to be housed 

for his trial—just for one detainee. Where will military commissions be held—at 

Guantanamo or in the United States? 

Mr. JOHNSON. We are currently considering all possible options. That said, the 

President has committed to closing Guantanamo by the end of January 2010. As the 

President has stated, rather than keep us safe, the prison at Guantanamo Bay has 

weakened our national security by serving as a rallying cry for our enemies and reducing the willingness of our allies to work with us in fighting an enemy that operates in multiple countries. A bipartisan group of current and former senior U.S. government officials and military leaders have called for the closure of the detention 

131 

facility at Guantanamo Bay to enhance our national security, and this administration is determined to accomplish this within the 1-year timeframe directed by the 

President. 

Mr. KRIS. We are currently considering all possible options. That said, the President has committed to closing Guantanamo by the end of January 2010. As the 

President has stated, rather than keep us safe, the prison at Guantanamo Bay has 

weakened our national security by serving as a rallying cry for our enemies and reducing the willingness of our allies to work with us in fighting an enemy that operates in multiple countries. A bipartisan group of current and former senior U.S. 

Government officials and military leaders have called for the closure of the detention facility at Guantanamo Bay to enhance our national security, and this administration is determined to accomplish this within the 1-year timeframe directed by the 

President. 

Admiral MACDONALD. I have not been involved in any discussions regarding the 

location, or potential location, for military commissions. That determination will be 

made by the administration. 

55. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, assuming 

military commissions are held at Guantanamo, what additional constitutional rights 

will a detainee gain if they are tried in the United States versus Guantanamo? 

Mr. JOHNSON. See our answer to question 17. We believe that, whether military 

commissions are convened in the United States or at Guantanamo, there is a significant risk, in light of the circumstances of the Guantanamo detainees, that courts 

will apply a baseline of due process protection in commission proceedings. This does 

not mean that courts will provide commission defendants with the same array of 

constitutional rights that defendants receive in Article III criminal trials. We do believe, however, that there is a significant risk courts would afford commission defendants with those due process protections that are ‘‘so rooted in the traditions and 

conscience of our people as to be ranked as fundamental,’’ Snyder v. Massachusetts, 

291 U.S. 97, 105 (1934), regardless of whether commission proceedings are held at 

Guantanamo Bay or in the United States. It is not clear that moving commission 

trials to the United States would have a significant impact on how they function 

as a legal matter, as basic due process protections may apply irrespective of their 

location. 

Mr. KRIS. See our answer to question 17. We believe that, whether military commissions are convened in the United States or at Guantanamo, there is a significant 

risk, in light of the circumstances of the Guantanamo detainees, that courts will 

apply a baseline of due process protection in commission proceedings. This does not 

mean that courts will provide commission defendants with the same array of constitutional rights that defendants receive in Article III criminal trials. We do believe, however, that there is a significant risk courts would afford commission defendants with those due process protections that are ‘‘so rooted in the traditions and 

conscience of our people as to be ranked as fundamental,’’ Snyder v. Massachusetts, 

291 U.S. 97, 105 (1934), regardless of whether commission proceedings are held at 

Guantanamo Bay or in the United States. It is not clear that moving commission 

trials to the United States would have a significant impact on how they function 

as a legal matter, as basic due process protections may apply irrespective of their 

location. 

Admiral MACDONALD. The Supreme Court held in Boumediene, that detainees 

held at Guantanamo have a right to habeas review under the Suspension Clause 

of the Constitution. The Court did not extend other Constitutional protections to 

those detainees, and subsequent decisions by lower courts have held that the holding in Boumediene was limited to the Suspension Clause. I am not aware of any 

precedent, on point, that would extend other Constitutional rights to alien 

unprivileged enemy belligerents detained under the laws of war, whether held within the United States or outside the United States. 

56. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, are there 

differences in the rights awarded to detainees tried in a military commission versus 

civilian court? Could location or geography affect the right afforded to detainees 

(somewhere in the United States versus Guantanamo)? 

Mr. JOHNSON. Properly reformed military commissions are uniquely situated to 

take into account the realities of the battlefield and the particular challenges of 

gathering evidence during military operations overseas, while also providing due 

process to the accused. For example, some of our customary rules of criminal procedure, such as Miranda-like warnings, are not required in the military commissions 

legislation that passed the Senate. 

132 

With regard to location, it is not clear that moving the trials to the United States 

would have a significant impact on how they function as a legal matter, as basic 

due process protections may apply irrespective of their location. Our goal is to create 

a military commissions system that is fair, effective, and legal, and will survive appellate review, regardless of where the trials take place. 

Mr. KRIS. Properly reformed military commissions are uniquely situated to take 

into account the realities of the battlefield and the particular challenges of gathering evidence during military operations overseas, while also providing due process 

to the accused. For example, some of our customary rules of criminal procedure, 

such as Miranda-like warnings, are not required in the military commissions legislation that passed the Senate. 

With regard to location, it is not clear that moving the trials to the United States 

would have a significant impact on how they function as a legal matter, as basic 

due process protections may apply irrespective of their location. Our goal is to create 

a military commissions system that is fair, effective, and legal, and will survive appellate review, regardless of where the trials take place. 

Admiral MACDONALD. As I noted in my answer to question 55, I believe that the 

rights afforded to detainees within the draft military commissions legislation under 

consideration by this committee will be sufficient to protect whatever rights a detainee has regardless of the physical location of the commission. Those rights are 

not identical to the rights that are found in civilian courts. 

Both commissions and civilian courts offer a right of confrontation, a right of 

counsel, the right to be present during the introduction of evidence, a right to remain silent, protection against statements obtained by torture or cruel, inhuman or 

degrading treatment, a right of due process, a right to an impartial judge, and appellate review. Both include a presumption of innocence, proof beyond a reasonable 

doubt, protection against double jeopardy, and the right to 12 members in a capital 

case. 

However, the right of confrontation in criminal courts forbids the introduction of 

testimonial hearsay. Commissions permit hearsay if reliable. Domestic courts use a 

voluntariness standard for admissibility of statements of a defendant, while commissions rules would permit a military judge to consider voluntariness as an aspect of 

determining both reliability and admissibility in the interests of justice. Due process 

rights before commissions is informed by the law of war, permitting substitutes for 

domestic norms, such as trial by members rather than trial by jury, and trial based 

upon sworn charges rather than indictment. The right to a Miranda warning is well 

founded in domestic law, but is not required for admission of statements in a military commission because it is inconsistent with the duties of a Soldier or Marine 

conducting a battlefield interrogation. Similarly, search and seizure laws applicable 

under the Fourth Amendment generally do not apply to searches and seizures outside of the United States. 

PROTECTION OF CLASSIFIED INFORMATION

57. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, some classified information that could be essential to the conviction of these detainees is still 

extremely sensitive and could compromise ongoing activities as well as American 

lives. How do we handle protection of classified information during trials? 

Mr. JOHNSON. Ensuring that classified information is adequately safeguarded in 

order to protect our national security is a paramount concern for the administration. 

The system provided by CIPA for criminal cases prosecuted in Federal Court has 

generally worked well in protecting classified information, while also ensuring a 

fair, credible, and effective trial. We have worked closely with the committee staff 

to develop the Levin-Graham-McCain amendment that was adopted by the Senate 

on July 23, and provides for a modified version of CIPA that reflects lessons learned 

from past terrorism prosecutions. We are grateful for the work of the committee 

staff in developing procedures that will adequately protect classified information 

and advance the President’s objective of reforming the commissions and ensuring 

that they are a fair, legitimate, and effective forum for the prosecution of law of war 

offenses. 

Mr. KRIS. Ensuring that classified information is adequately safeguarded in order 

to protect our national security is a paramount concern for the administration. The 

system provided by CIPA for criminal cases prosecuted in Federal Court has generally worked well in protecting classified information, while also ensuring a fair, 

credible, and effective trial. We have worked closely with the committee staff to develop the Levin-Graham-McCain amendment that was adopted by the Senate on 

July 23, and provides for a modified version of CIPA that reflects lessons learned 

133 

from past terrorism prosecutions. We are grateful for the work of the committee 

staff in developing procedures that will adequately protect classified information 

and advance the President’s objective of reforming the commissions and ensuring 

that they are a fair, legitimate, and effective forum for the prosecution of law of war 

offenses. 

Admiral MACDONALD. The provisions addressing classified evidence permitted a 

military judge to determine the reliability of underlying evidence, and redact classified sources and methods from material provided to the defense. The standards for 

discovery and use in military commisions are similar to those found in courts-martial, but given the lack of a robust body of case law interpreting those rules, the 

rules addressing classified information fail to provide clear guidance to military 

judges and practitioners regarding both the standards for discovery and the procedures to be used in obtaining ex parte review of petitions from the government. The 

rules governing classified information have no clear analogue in either courts-martial or Article III courts, depriving commissions of the benefit of the jurisprudence 

that exists under established norms in either courts-martial or district courts. Without such clear guidance, counsel have been unable to obtain ex parte hearings to 

expedite the resolution of classified information issues, and have had to seek multiple protective orders to ensure all information, regardless of source, is properly 

protected. 

I recommend that the classified information rules be altered, relying on CIPA as 

a touchstone for starting the draft, incorporating the lessons learned from commissions to date, and those provisions of MRE 505 that permit closure of the proceedings when warranted. Counsel and military judges will then have the benefit 

of more than 20 years of jurisprudence from CIPA application to guide the use of 

the rules. 

LONG-TERM IMPLICATIONS

58. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, what are 

the long-term implications on future conflicts of trying these detainees in a civil 

court versus military commissions? 

Mr. JOHNSON. As we testified before the committee, the administration is committed to using all elements of national power and authority—including the systems 

of justice in both Federal courts and military commissions—to defeat our enemy and 

to advance the interests of justice. Federal courts have been used successfully many 

times before to try and convict suspected terrorists, including individuals affiliated 

with al Qaeda. We have developed a protocol to determine whether cases will be 

tried in a military commission or a Federal court, and will make these determinations on a case by case basis. The protocol is attached (see Annex A). We do not 

believe that these determinations will foreclose any options for the future. 

Mr. KRIS. As we testified before the committee, the administration is committed 

to using all elements of national power and authority—including the systems of justice in both Federal courts and military commissions—to defeat our enemy and to 

advance the interests of justice. Federal courts have been used successfully many 

times before to try and convict suspected terrorists, including individuals affiliated 

with al Qaeda. We have developed a protocol to determine whether cases will be 

tried in a military commission or a Federal court, and will make these determinations on a case-by-case basis. The protocol is attached (see Annex A). We do not believe that these determinations will foreclose any options for the future. 

Admiral MACDONALD. Each case deserves an individual determination as to 

whether or where a trial might be conducted. There may be individual instances 

where a determination may be warranted to criminally prosecute a case in an Article III court, depending on factors such as the citizenship of the accused, the location of the offense, the status of the victims, or the particularities of the crime. Ultimately, it is a policy determination as to whether the administration chooses to pursue a case in one forum or another. No matter whether or how that determination 

is made, however, I think it is important that the system for military commissions 

we establish is fair, and that we are confident enough in the fairness and legality 

of their rules and procedures that we would accept trial of our own servicemembers 

before similar tribunals for allegations of war crimes brought by another country. 

MIRANDA RIGHTS

59. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, currently, 

new intelligence is continually being collected from detainees at Guantanamo and 

is being used to fight terrorists in Iraq, Afghanistan, and around the globe. AccordVerDate Nov 24 2008 14:17 Dec 16, 2009 Jkt 000000 PO 00000 Frm 00137 Fmt 6633 Sfmt 6621 Y:\BORAWSKI\DOCS\54023.TXT JUNE PsN: JUNEB
134 

ing to former Central Intelligence Agency Director George Tenet, upon Khalid 

Sheikh Mohammad’s capture on March 1, 2003, he said: ‘‘I’ll talk to you guys after 

I get to New York and see my lawyer.’’ Why is the administration reading Miranda 

Rights to some detainees captured or held in Iraq and Afghanistan? How many are 

being read Miranda Rights? How many have invoked their rights? 

Mr. JOHNSON. First, it should be made clear that Miranda warnings are never 

given by our soldiers on the battlefield or in any other circumstance where they 

would have an adverse impact on military or intelligence operations. The essential 

mission of our Nation’s military, in times of armed conflict, is to capture or engage 

the enemy; it is not evidence collection or law enforcement. Members of the U.S. 

military do not provide Miranda warnings to those they capture. 

Under policies that have been in place for years (including under the previous administration), Miranda warnings are only given in a very small number of cases 

after an individual has been removed from the battlefield, and only when consistent 

with military and intelligence needs. This administration is committed to using all 

instruments of national power to defeat terrorist extremists. This includes, and will 

continue to include, the prosecution of some terrorists in Article III courts. In that 

event, U.S. law enforcement personnel have, in a handful of situations, been permitted to question detainees who are potential prospects for prosecution, accompanied by Miranda warnings. The warnings are never given if doing so will hinder 

our counterterrorism efforts. 

Mr. KRIS. First, it should be made clear that Miranda warnings are never given 

by our soldiers on the battlefield or in any other circumstance where they would 

have an adverse impact on military or intelligence operations. The essential mission 

of our Nation’s military, in times of armed conflict, is to capture or engage the 

enemy; it is not evidence collection or law enforcement. Members of the U.S. military do not provide Miranda warnings to those they capture. 

Under policies that have been in place for years (including under the previous administration), Miranda warnings are only given in a very small number of cases 

after an individual has been removed from the battlefield, and only when consistent 

with military and intelligence needs. This administration is committed to using all 

instruments of national power to defeat terrorist extremists. This includes, and will 

continue to include, the prosecution of some terrorists in Article III courts. In that 

event, U.S. law enforcement personnel have, in a handful of situations, been permitted to question detainees who are potential prospects for prosecution, accompanied by Miranda warnings. The warnings are never given if doing so will hinder 

our counterterrorism efforts. 

Admiral MACDONALD. It has been the longstanding practice of the U.S. Government to use Miranda warnings in a very small number of cases in which it is important to our national security to ensure that statements made by terrorist suspects 

can be used in a criminal prosecution. However, the warnings are given in locations 

removed from the battlefield, and only after the military’s intelligence-gathering and 

force protection needs have been met. The decision as to whether or not to give a 

warning is made by experienced career professionals in consultation with military 

and intelligence officials. The warnings are never given if the professionals conclude 

that doing so will hinder our counterterrorism efforts. 

I do not know the number of cases in which a detainee has invoked his right to 

silence. 

60. Senator INHOFE. Mr. Johnson, Mr. Kris, and Admiral MacDonald, what is the 

impact of requiring the reading of Miranda Rights to terrorists captured on the battlefield and advising them they have the right to remain silent? 

Mr. JOHNSON. See the answer to question 59. 

Mr. KRIS. See the answer to question 59. 

Admiral MACDONALD. The impact of requiring Miranda warnings on the battlefield would be significant. Soldiers seek actionable intelligence in order to achieve 

the mission, and any requirement that impinges on obtaining such information 

would endanger both the mission and the lives of servicemembers who require that 

information to subdue the enemy in battle. Soldiers must be free to exercise their 

full authority under the law of war to obtain actionable intelligence, or risk compromise of the mission and safety of our troops. 

However, where the provision of Miranda rights will not risk compromise of the 

mission or safety of our troops, providing Miranda warnings may enable the government to keep all options on the table, thus helping to ensure that those who commit 

terrorist acts against our citizens can be brought to justice, whether in Federal 

courts or military commissions. 

135 

QUESTIONS SUBMITTED BY SENATOR JEFF SESSIONS

CAPITAL CHARGES

61. Senator SESSIONS. Mr. Kris, the MCA has been construed by some military 

judges to prevent prosecutors from pursuing capital charges against a defendant if 

he pleads guilty. This is not the case in the civilian system, right? In other words, 

in State and Federal courts, a defendant who pleads guilty can still be charged with 

a capital offense? 

Mr. KRIS. In the Federal civilian system, as well as in the vast majority of the 

States which currently have capital punishment, the death penalty can be imposed 

after a guilty plea. The question of whether the MCA and commissions rules permit 

the death penalty to be imposed after a guilty plea in military commissions is currently the subject of litigation that is pending before the commissions. We have argued in litigation that the existing law allows for the imposition of the death penalty after a guilty plea to capital charges. No courts have ruled on the question to 

date. 

62. Senator SESSIONS. Mr. Kris, the courts’ interpretation of the MCA makes it 

harder to pursue a capital case, in the case of a defendant who pleads guilty, than 

it would be if the same unlawful belligerent were prosecuted in State or Federal 

court—or if a U.S. citizen were prosecuted for murder in State or Federal court. Is 

that correct? 

Mr. KRIS. Whether the death penalty can be imposed after a guilty plea under 

the MCA is the subject of pending litigation and no courts have ruled on this question to date. In the Federal system, and in the vast majority of the States which 

currently have capital punishment, the death penalty can be imposed after a guilty 

plea. 

63. Senator SESSIONS. Mr. Kris, if Khalid Sheikh Muhammad, for example, began 

to have doubts about the heavenly reward that has been promised to him by Osama 

bin Laden in the event of his death, could he simply plead guilty, and thereby ensure that no capital charges can be brought against him? 

Mr. KRIS. Whether a defendant chooses to plead guilty or go to trial has no bearing on which charges can be brought; the question is solely about the punishment, 

that is, whether the death penalty can be imposed based on a conviction resulting 

from a guilty plea rather than a finding of guilt after a trial. This question is the 

subject of pending litigation before the military commissions, as discussed above. 

64. Senator SESSIONS. Mr. Kris, do you believe that Congress should correct this 

anomaly? 

Mr. KRIS. We have argued in litigation that the existing statute and rules allow 

for the imposition of the death penalty after a guilty plea to capital charges. The 

administration has not taken a position on whether this matter requires any further 

congressional action. 

CLASSIFIED INFORMATION

65. Senator SESSIONS. Mr. Kris, the committee-reported NDAA requires that, before the government may seek protection for classified information, it first must certify that the information in question has been declassified ‘‘to the maximum extent 

possible.’’ Does the administration support this change—and if not, why do you believe that it is unsound? 

Mr. KRIS. A provision in the bill passed by the Senate Armed Services Committee 

allowed the use of traditional CIPA protections for classified evidence—such as substitutions—only after an agency head or original classifying authority has certified 

that the evidence has been declassified to the maximum extent possible. The administration expressed concern that this provision has no analogue in CIPA or the 

UCMJ, and created a potentially burdensome process of declassifying information 

for which disclosure might not be ordered after an ex parte review by a military 

judge or district court. 

On July 23, the Senate adopted an amendment to revise the section of the bill 

governing the handling of classified information in military commission trials. 

Among other things, this amendment removed this requirement. 

66. Senator SESSIONS. Mr. Kris, I understand that there is an ambiguity in the 

MCA as to whether it allows presentations in support of a motion to protect classified evidence to be presented ex parte. Some judges apparently think that only the 

136 

written motion may be filed ex parte, but that an oral presentation in support of 

the motion cannot be made to the court ex parte. In the Federal courts’ practice 

under the CIPA, can presentations as well as written motions seeking protection for 

classified evidence be made ex parte? 

Mr. KRIS. In Federal court practice, trial judges generally permit the government 

to present oral, as well as written ex parte explanations concerning the national security interests in classified information that is potentially subject to discovery. In 

military commissions practice, however, judges have demonstrated reluctance to 

permit such ex parte oral presentations. We believe the Levin-McCain-Graham 

amendment to section 1031 of the NDAA makes clear that oral ex parte presentations are permitted. 

67. Senator SESSIONS. Mr. Kris, what practical problems arise when MCA judges 

do not allow such presentation to be made ex parte? 

Mr. KRIS. Proposing substitutions and summaries of classified information is a 

cumbersome process, given the technical difficulties associated with developing alternatives to full disclosure that provide information material to the defense without 

disclosing sensitive classified information. Ex parte sessions provide an opportunity 

for trial counsel to immediately respond to questions from the military judge by explaining the alternatives or proposing amendments to the alternatives without the 

delay involved in relying solely on written submissions. 

68. Senator SESSIONS. Mr. Kris, the MCA allows the United States to seek protective orders for information that the United States has supplied to the defense 

through discovery. The text of the MCA, however, does not authorize such protective 

orders for classified or other sensitive information that the defendants obtains 

through other means. Has this proven to be a problem in MCA prosecutions, and 

if so, can you describe the circumstances in which it has been a problem? 

Mr. KRIS. Yes, this has proven to be a problem in MCA prosecutions. Unfortunately, classified information may be found in open or public sources due to previous 

unauthorized disclosures. However, these unauthorized disclosures do not change 

the classification level of the information and do not minimize the damage to national security that disclosure is reasonably expected to cause. When leaked classified information is cited or used by counsel who have security clearances or otherwise have had access to classified information by virtue of their role as counsel, the 

public perceives that the leaked classified information has been acknowledged, thus 

increasing the harm to national security. The government is put in the untenable 

position of risking further disclosures by confirming or denying the classified information. We believe the Levin-McCain-Graham amendment to section 1031 of the 

NDAA addresses this problem by authorizing protective orders in this context. 

69. Senator SESSIONS. Mr. Kris, I understand that the administration has informally suggested that the standard for discovery in MCA litigation should be clarified, so that discovery is available for information that is relevant and necessary to 

a legally cognizable and relevant defense or to sentencing issues. Can you describe 

the policy reasons for this proposal? 

Mr. KRIS. We think it is important to codify and adapt current law and practice 

on this issue under the CIPA for the military commission context, in order to better 

protect classified information that is the subject of a discovery request by the defense. We believe the Levin-McCain-Graham amendment to section 1031 of the 

NDAA addresses this issue appropriately. Under the amendment, defense counsel 

will not have access to classified evidence unless it materially assists the defense 

in rebutting an element of the offense, in asserting an affirmative defense, or in obtaining a favorable sentence, and an unclassified substitution or summary is inadequate. This codifies current law. See, e.g., United States v. Yunis, 867 F.2d 617, 

624–25 (DC Cir. 1989). 

QUESTIONS SUBMITTED BY SENATOR SUSAN COLLINS

HABEAS CORPUS CHALLENGES

70. Senator COLLINS. Mr. Johnson, Mr. Kris, and Admiral MacDonald, the Supreme Court’s decisions have left unresolved the question whether Guantanamo detainees may challenge the conditions of their detention, such as whether they can 

be held in solitary confinement, when they can be transferred, or whether they can 

have contact with their relatives. Does the administration support allowing habeas 

challenges to these and other aspects of detention? 

137 

Mr. JOHNSON. The administration believes that current law does not authorize 

Guantanamo detainees to challenge the conditions of their detention before an Article III court. In fact, we have to date prevailed in this argument in every habeas 

case in which it has arisen. 

Mr. KRIS. The administration believes that current law does not authorize Guantanamo detainees to challenge the conditions of their detention before an Article III 

court. In fact, we have to date prevailed in this argument in every habeas case in 

which it has arisen. 

Admiral MACDONALD. I am unaware of any judicial precedent, on point, for a Federal court to review the conditions of detention for alien unprivileged enemy belligerents. As I answered in an earlier question, I also believe that the laws of war, 

themselves, obligate the United States to make additional accommodations in the 

conditions of detention for unprivileged enemy belligerents as the length of detention extends over many years. 

71. Senator COLLINS. Mr. Johnson, Mr. Kris, and Admiral MacDonald, the typical 

remedy for habeas claims is the release of the individual being unlawfully detained. 

But given that many of the detainees cannot be released to their home countries 

or another country willing to take them, what does the administration believe to be 

a practical remedy in the event that a detainee successfully challenges his detention? 

Mr. JOHNSON. If a detainee is ordered released by a habeas court, and cannot be 

returned to his home country, we will work to develop alternative transfer or resettlement options that are lawful and that satisfy our security concerns. Moreover, as 

noted above, for detainees in the United States, authority to detain individuals 

under the immigration laws pending their removal, particularly where they pose a 

threat to national security, is an additional mechanism that may be used if necessary to ensure that detainees will not endanger our citizens. 

Mr. KRIS. If a detainee is ordered released by a habeas court, and cannot be returned to his home country, we will work to develop alternative transfer or resettlement options that are lawful and that satisfy our security concerns. Moreover, as 

noted above, for detainees in the United States, authority to detain individuals 

under the immigration laws pending their removal, particularly where they pose a 

threat to national security, is an additional mechanism that may be used if necessary to ensure that detainees will not endanger our citizens. 

Admiral MACDONALD. This question falls outside my area of expertise and is a 

matter now under review by the administration’s Detention Policy Task Force. 

[Annexes A through D follow:] 

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ANNEX A 


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ANNEX B 


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ANNEX C 


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ANNEX D 


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[Whereupon, at 12:10 p.m., the committee adjourned.] 

Æ 


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