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JUSTICE FOR AMERICA: USING MILITARY 

COMMISSIONS TO TRY THE 9/11 CONSPIRATORS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

APRIL 5, 2011 

Serial No. 112–29 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

DEBBIE WASSERMAN SCHULTZ, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 5, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 4 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

David Beamer, father of United 93 Passenger Todd Beamer 

Oral Testimony ..................................................................................................... 7 

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

Charles D. Stimson, Senior Legal Fellow, The Heritage Foundation 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 17 

Stephanie Hessler, Fellow, Manhattan Institute for Policy Research 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 28 

Stephen A. Saltzburg, Professor of Law, George Washington University 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 33 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Louie Gohmert, a Representative in 

Congress from the State of Texas, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 52 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 85 

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 88 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 93 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 98 

Department of Justice Fact Sheet .......................................................................... 100 

Page

IV 

Document from Human Rights First ..................................................................... 103 

Letter dated November 25, 2009, from Carolyn B. Lamm, President, the 

American Bar Association (ABA), to the Honorable Eric H. Holder, Jr., 

Attorney General of the United States ............................................................... 108 

Letter from military leaders to the President ....................................................... 112 

Letter from John C. Coughenour, United States District Judge, Western 

District of Washington ......................................................................................... 115 

Letters from 9/11 Families for a Safe and Strong America, received from 

family members, first responders, survivors, friends, and co-workers of the 

fallen ..................................................................................................................... 129

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Human Rights First report entitled: In Pursuit of Justice, Prosecuting Terrorism 

Cases in the Federal Courts, May 2008; submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking 

Member, Committee on the Judiciary. This report is available at the Subcommittee and can also be accessed at: 

http://www.humanrightsfirst.org/wp-content/uploads/pdf/080521-USLS-pursuitjustice.pdf 

Human Rights First report entitled: In Pursuit of Justice, Prosecuting Terrorism 

Cases in the Federal Courts, 2009 Update and Recent Developments, July 2009; 

submitted by the Honorable John Conyers, Jr., a Representative in Congress from 

the State of Michigan, and Ranking Member, Committee on the Judiciary. This 

report is available at the Subcommittee and can also be accessed at: 

http://www.humanrightsfirst.org/wp-content/uploads/pdf/090723-LS-in-pursuitjustice-09-update.pdf 

(1) 

JUSTICE FOR AMERICA: USING MILITARY 

COMMISSIONS TO TRY THE 9/11 CONSPIRATORS 

TUESDAY, APRIL 5, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:01 a.m., in room 

2141, Rayburn Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Smith, Gohmert, Goodlatte, Lungren, Poe, Marino, Gowdy, Adams, Scott, Conyers, Johnson, Pierluisi, Chu, and Quigley. 

Staff present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Sam Ramer, Counsel; Sarah Allen, Counsel; Anthony 

Angeli, Counsel; Lindsay Hamilton, Clerk; (Minority) ; Joe 

Graupensberger, Counsel; Sam Sokol, Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. SENSENBRENNER. The Subcommittee will come to order. 

Today’s hearing examines the role of military commissions in 

granting justice to the families of the September 11 attacks. 

Yesterday, the Obama administration announced it will try the 

9/11 conspirators, including Khalid Sheikh Mohammed, in military 

commissions rather than in a U.S. civilian court. 

I find it a strange coincidence that the Administration decided to 

announce this 180 degree turn in policy the day before this hearing 

and on the very same day that the President announced his reelection campaign. I and many others believe that the security of the 

United States should not depend upon politics. The President’s 

2009 executive order to vacate military commissions was a decision 

based on political ideology and not the safety of America or the will 

of its people. 

I also find it ironic that Attorney General Holder cites the delay 

in trying KSM and his co-conspirators as his reason for today’s decision, given that it was the decision of this Administration that 

brought justice for America to all. In his statement, General Holder 

laid the blame for the delay in the 9/11 trials at Congress’ feet, saying that he was forced to proceed with military commissions because of our decision to prohibit the use of Federal funds for civilian trials of these and other Gitmo detainees. As they say in New 

2 

York City, it takes real chutzpa to say something like that. In 

terms of the criticism that General Holder had of the Congress, 

Congress did the right thing. The Administration was off on the 

wrong track, and I can say that we can chalk one up for Congress 

on a bipartisan basis on this issue. 

Congress was merely doing what the President failed to do over 

the last 2 years, which is to respond to the demands of the American people who overwhelmingly opposed bringing KSM and cohorts to the United States for trial. But since he is handing us 

credit for bringing KSM to justice, we will take it with one caveat: 

we must acknowledge the efforts of the 9/11 victims’ families in 

particular. It was their dogged determination and endless advocacy, I believe, that brought this Administration to the path of reason and common sense. 

It should have not have taken over 2 years to make this decision. 

The victims of the families should not have had to wait until the 

President announced his reelection campaign for the Administration to recognize what most Americans know in their hearts, that 

KSM and other co-conspirators are enemy combatants and that the 

atrocities of September 11 were not just domestic crimes like robbery or burglary. They were acts of unmitigated war against the 

entire country, and as such, all of the United States and its people 

were victims in some way of this attack. 

I hope that the delays caused by the Administration’s flip-flopping will not sabotage the success of the military commissions. And 

since we are all here, we have an excellent opportunity to examine 

the good sense of proceeding with military tribunals and find out 

whether these political delays have harmed the chance of achieving 

justice. 

On September 11, 2001, nearly 3,000 men, women, and children 

were slaughtered in one of the most heinous assaults in our Nation’s history. The country mobilized for war, and in 2003, 9/11 

mastermind KSM was captured in Pakistan. KSM became a valuable asset in our war against al Qaeda, providing operational details about that organization on every level, even to the point of explaining how al Qaeda goes about recruiting more terrorists. Once 

every bit of operational intelligence was obtained from KSM, the 

military began its legal proceedings to hold him accountable for the 

terrorist act he designed. 

KSM has never been shy about his act of war against the United 

States. In March 2007, KSM testified in a closed-door hearing in 

Guantanamo. According to transcripts of the hearing released by 

the Pentagon, he said I was responsible for the 9/11 operation from 

A to Z. 

He and four other 9/11 conspirators were charged in a military 

commission trial in 2008. They were assigned lawyers for their defense under the Code of Military Justice, and in December 2008, 

KSM and his co-conspirators offered to plead guilty for their roles 

in the September 11 atrocities. 

But on January 21st, 2009, Khalid Sheikh Mohammed received 

a stay. On his first day in office, President Obama, by executive 

order, halted the trial against KSM and the others and ordered the 

Guantanamo Bay facility closed. 

3 

In November of the same year, Attorney General Eric Holder announced that he would house KSM in Manhattan and try him in 

a Federal courthouse 2 blocks from Ground Zero, granting him 

every constitutional right afforded U.S. citizens. 

Today we will examine the use of military commissions to try 

KSM and the other 9/11 conspirators. Those al Qaeda soldiers must 

be tried in military commissions for the simple fact that what they 

did on that fateful day 10 years ago was not a crime. It was an 

act of war. 

I would like to extend a special welcome to Mr. David Beamer, 

father of Todd Beamer, the brave father of three who saved countless people when he fought back against the Flight 93 hijackers, uttering the words, ‘‘let’s roll,’’ before taking action. The families of 

the 9/11 victims have waited patiently for justice for their loved 

ones. Ten years is long enough. It is time for justice now. 

It is now my pleasure to recognize for his opening statement the 

Ranking Member of the Subcommittee, the gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman, and I welcome this hearing on an important issue as we discuss some of the fundamental 

principles underlying how we attempt to achieve justice in this 

country. 

Yesterday the Administration announced that it would refer 

cases and the accused 9/11 plotters to military commissions. I view 

this announcement not has a choice between viable alternatives 

but merely reverting to the last possible option against those who 

are accused of attacking our people. 

The Attorney General had announced at the end of 2009 that the 

9/11 plotters would be tried in Federal court and that he was extremely confident in the strength of these cases. Since that time, 

Congress has imposed restrictions, making it impossible for the 

Guantanamo Bay detainees to be brought to the United States for 

those trials in Federal court. 

Yesterday’s announcement is a reflection of the fact that Congress left no practical option open to the Administration, and I believe the actions of Congress in this regard were unwise. Our Federal criminal justice system with its laws and procedures is timetested and provides the best chance for obtaining verdicts against 

guilty defendants which we will have confidence will withstand 

scrutiny against court challenges. The Federal courts have convicted 400 people in terrorism-related charges over the last 10 

years. In contrast, there have been only six convictions under the 

commissions since 9/11, and during that time, we have learned that 

the survivability of the commissions under court challenges cannot 

be taken for granted. In fact, Federal courts have a stronger record 

of securing convictions and imposing tough punishments than military commissions do. 

A report by the Center for American Progress found that criminal courts are a tougher and more reliable forum for prosecuting 

terrorists than military commissions. In fact, terrorists prosecuted 

by commissions had received shockingly short sentences and some 

have already been released as of the date of the report a year ago. 

We should have the confidence in the ability of Federal courts to 

continue doing their job in such cases. 

4 

This situation reminds me of the counterproductive juvenile justice policy we have pursued in this country over the past 2 decades. 

We have studied the idea of trying more juveniles as adults, and 

we have found that in the adult system those studies have revealed 

that the sentences are shorter for those juveniles and that the recidivism rate is higher. However, politicians insist on campaigning 

down that path. It does more harm than good just because it 

sounds tough. 

Prosecuting terrorists in front of military commissions likewise 

sounds tougher than civilian courts, and as we have seen with 

prior successful challenges to military commissions, we cannot 

know whether the commissions and perhaps the convictions obtained under them will survive court challenges until those challenges have been brought and considered all the way to the Supreme Court. 

Ultimately by trying terrorists in Federal courts, we protect our 

citizens and the principles of the Constitution which is our ultimate defense against threats to our Nation and our freedom. When 

Judge Bill Young sentenced the shoe bomber, Richard Reid, in Federal court, he said, see that flag, Mr. Reid? That is the flag of the 

United States of America. That flag will fly long after all of this 

is forgotten. That flag stands for freedom. You know it always will. 

Custody, Mr. Officer. Stand him down. 

I thank the witnesses for testifying today. It is another hallmark 

of our democracy that we will hear and consider different points of 

view, learn from each other, and we are all the better for it. So I 

look forward to hearing their testimony and thank you, Mr. Chairman, for calling the hearing. 

Mr. SENSENBRENNER. Thank you, Mr. Scott. 

The Chair recognizes the Chairman of the full Committee, the 

gentleman from Texas, Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

It has been nearly 10 years since the attacks on September 11. 

Yet, Khalid Sheikh Mohammed, otherwise known as KSM, and his 

four co-conspirators still have not been brought to justice for an act 

of war that took the lives of nearly 3,000 innocent people. 

It is unfortunate that it took the Obama administration more 

than 2 years to figure out what the majority of Americans already 

know, that KSM is not a common criminal. He is a war criminal. 

After KSM was captured, many of us believed that once he was 

thoroughly interrogated, he would be brought to justice. The prior 

Administration tried to do just that by bringing him before a military tribunal. Unfortunately, President Obama brought that process to a halt as one of his first acts as President. 

Now, on the first day of his reelection campaign, the President 

has reversed himself yet again and ordered the 9/11 conspirators 

to be tried in military commissions. 

Last year, Congress restricted the use of Federal funds to try any 

Gitmo detainee in the U.S. courts, and two-thirds of the American 

people support military commission trials for the 9/11 terrorists. 

Trying foreign terrorists in civilian courts makes it harder for prosecutors to obtain a conviction. We saw this recently with the civilian trial against Gitmo detainee, Ahmed Ghailani, the first foreign 

terrorist detained at Guantanamo Bay to be tried in civilian courts. 

5 

*The material referred to is not reprinted in this hearing record but is available at the Subcommittee and can be accessed at http://www.humanrightsfirst.org/wp-content/uploads/pdf/ 

080521-USLS-pursuit-justice.pdf and http://www.humanrightsfirst.org/wp-content/uploads/pdf/ 

090723-LS-in-pursuit-justice-09-update.pdf 

This trial was the test run for the Obama administration’s plan to 

try foreign terrorists in U.S. courts. It was also a near disaster. 

Ghailani was acquitted of all but one of the 285 counts against 

him. 

Despite yesterday’s announcement, I am concerned that there are 

some at the Justice Department who will not give up their fight for 

undeserved terrorist rights. Simply because the Administration has 

finally decided to do the right thing with KSM doesn’t meant that 

all foreign terrorists will be tried in military commissions. The Administration needs to develop a clear and consistent policy that 

treats all foreign terrorists as enemy combatants. 

Ten years is too long to wait for justice. But after nearly a decade, I hope that this trial will provide some satisfaction to the families of the victims of 9/11. 

Thank you, Mr. Chairman. I yield back. 

Mr. SENSENBRENNER. The Chair now recognizes the Chairman 

emeritus junior grade and Ranking Member, the gentleman from 

Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner and Members. 

This is an important hearing, and I am glad that the witnesses 

chosen are here today. I thank you very much for coming. 

Now, it just seems to me that there are those here who support 

the proposition that military commissions are better for trying people accused of war crimes because there is more likelihood of a conviction. Now, for Members of the Judiciary Committee to take that 

position is one that I respectfully cannot agree with. I think there 

should be some other test, and perhaps we will get that from our 

witnesses today. 

When I look at the lists of people my staff has evaluated and 

talked about, the people that I think quite a bit of have come out 

in support of the regular Federal trials. After all, no one has been 

convicted yet, and it is amazing how the presumption of innocence 

doesn’t apply in some cases but it applies in others. And that is 

what we are here to talk about. 

But I want to thank first the Constitution Project, the Human 

Rights First organization. And I am going to put in the record the 

statements and hope that I will have an opportunity for further 

discussions with Members of the Judiciary Committee. 

Mr. SENSENBRENNER. Without objection, the statements will be 

placed in the record.* 

Mr. CONYERS. Thank you, sir. But these statements will come 

from Supreme Court Justice Anthony Kennedy; the former Secretary of State, Colin Powell; the former Director of the Federal 

Bureau of Investigation, Bill Sessions; the former Rear Admiral 

John Huston; Brigadier General James Cullen; the American Correctional Association; and a letter from the American Bar Association in support of prosecuting alleged terrorists and terrorists in 

our Federal court system and particularly Judge John C. 

6 

Coughenour of the Western District of Washington who has handled as many of these cases as any member of the judiciary. 

In the case of Ahmed Ressam, the so-called Millennium Bomber, 

it involved 3 months of trials. He went up to the Ninth Circuit 

three times, to the Supreme Court once. And he says that this definitively concludes in his experience that these trials in a Federal 

court are not injurious or should not be rejected. 

Now, this does not mean that there are no circumstances under 

which military commissions—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

Mr. Conyers [continuing]. Cannot be approved. 

And I thank the gentleman. 

Mr. SENSENBRENNER. Without objection, all Members’ opening 

statements will be placed in the record at this point. 

It is now my pleasure to introduce today’s witnesses. David 

Beamer is the father of the late Todd Beamer, one of the passengers on United Flight 93 which was downed in Shanksville, 

Pennsylvania during the terrorist attacks on September 11, 2001. 

Todd Beamer was a resident of Cranbury, New Jersey where he 

worked as an account manager for Oracle Corporation. He was 

traveling to California for a business meeting when the 9/11 conspirators hijacked United Flight 93. Along with other passengers, 

Todd disrupted the terrorist plot and diverted the plane from its 

intended target of Washington, D.C. Todd and 39 others were 

killed in the plane crash. 

Since 9/11, David Beamer has been a tireless advocate for 9/11 

families and policy issues relating to national security and terrorism. 

Charles ‘‘Cully’’ Stimson is a leading expert on criminal law, military law, military commissions and detention policy at The Heritage Foundation’s Center for Legal and Judicial Studies. Before 

joining Heritage, Stimson served as the Deputy Assistant Defense 

Secretary for Detainee Affairs where he advised the Secretary of 

Defense on detainee issues worldwide, including at Guantanamo 

Bay, Iraq, and Afghanistan where he coordinated the Department’s 

detention policy and operations with his senior counterparts at the 

National security Council, the Justice and State Departments, the 

military services, and the intelligence community. 

He chaired the Defense Senior Leadership Oversight Committee 

which was responsible for tracking and executing all 492 recommendations from the 12 major investigations into the Defense 

Department’s detention policy and practices in the aftermath of the 

Abu Ghraib prison scandal. 

He led three high level European delegations on official trips to 

Guantanamo and also traveled to Guantanamo dozens of times to 

escort Members of the House, Senate, media, policymakers, academics, and other influential thinkers. 

He spent 13 years as a criminal prosecutor, defense attorney, 

and law professor. He is a decorated military veteran and continues to serve as a judge advocate for general reservists in the 

Navy where he sits as a military judge. In his three active duty 

tours in the Navy, Stimson served as a military prosecutor, defense 

attorney, and deployed to East Africa in 2000 for Operation NatVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
7 

ural Fire as the force judge advocate and deployed with Navy 

SEALS in the joint special operations JAG in 2001. 

He received his law degree from the George Mason University 

School of Law. 

Stephanie Hessler is an adjunct fellow at the Manhattan Institute where she writes frequently on constitutional law, national security law, counterterrorism law, and judicial nominations. Previously she served as a constitutional lawyer for the Senate Judiciary Committee and drafted legislation and advised on a wide variety of topics, including terrorist surveillance, domestic wiretapping, 

Guantanamo detainees, and habeas corpus. Ms. Hessler clerked for 

Chief Judge Boyce F. Martin, Jr. at the United States Court of Appeals for the Sixth Circuit. She received her B.A. in English literature from Kenyon College and her J.D. from the New York University School of Law. 

Professor Stephen Saltzburg joined the George Washington University School of Law in 1990. Before that, he taught at the University of Virginia School of Law. Prior to teaching, he held numerous governmental positions, including Associate Independent Counsel in the Iran-Contra investigation, Deputy Assistant Attorney 

General in the Criminal Division of the U.S. Department of Justice, 

the Attorney General’s ex officio representative on the U.S. Sentencing Commission, among others. In 2002, he was appointed to 

the ABA President’s Advisory Group on Citizen Detention and 

Enemy Combatant Issues, and he chaired the ABA Criminal Justice Section from 2007 to 2008. He received his B.A. from Dickinson 

College and his J.D. from the University of Pennsylvania. 

Without objection, the witnesses’ statements will appear in the 

record in their entirety. 

Each witness will be recognized for 5 minutes to summarize their 

written statement. We have a three-colored light in front of each 

of you. The yellow light means you have got a minute left. The red 

light means the time is up, folks. 

So I will first recognize for 5 minutes Mr. Beamer. Thank you 

very much for coming here. 

TESTIMONY OF DAVID BEAMER, FATHER OF UNITED 93 

PASSENGER TODD BEAMER 

Mr. BEAMER. Chairman Sensenbrenner, Members of the Committee, I appreciate this hearing that is taking place and I am 

thankful for the opportunity to speak today. 

Unfortunately, the remarks I originally prepared to present, after 

yesterday’s surprise announcement by the Attorney General, no 

longer seem adequate. I had planned to come here today to press 

our case for justice for our beloved families and friends and all 

those whose lives were cut short on that horrible day simply now 

known as 9/11. My appeal was to be a humble one. How, I planned 

to ask, after all we witnessed and experienced, individually and as 

a Nation, on that terrible, dark day can we satisfied to let justice 

founder? 

Americans answered the call that day—fire fighters, police, first 

responders—without hesitation, some of them knowing that they 

weren’t going to probably make it out alive, led on by a sense of 

duty just to try and save someone else’s life. Passengers and crews 

8 

on airplanes all took action that day, and many people from all 

over America came to Ground Zero to work to try and remove the 

bodies of those who they refused to let lie beneath 1.8 million tons 

of toxic rubble. Some of those brave people are even now dying because of their actions on those days. 

How, I planned to ask, can we who survived that day forsake 

their courage, their dignity, their decency by letting justice fail? 

How can it be that KSM, 10 years after that fateful day, 4 years 

after he confessed and proudly acknowledged his role, his major 

role, in making it happen, proudly proclaiming that he had the 

hand that killed journalist Daniel Pearl—how can we still be sitting here with him not brought to justice? 

We, the families, many not even having the opportunity for a 

grief-softening help in a simple burial for something called ‘‘justice’’—yesterday we were told by the highest law enforcement officer in the land, Attorney General Eric Holder, that justice is finally 

on the way. 

So why was the Attorney General’s speech such a bitter disappointment to me and so many family members? Why after the 

last 2 years of anguish and uncertainty did the Attorney General’s 

speech feel like yet another heavy burden instead of welcome relief? 

The victims will get their justice, but let us be clear, according 

to the Attorney General, not the best justice. The best venue for 

prosecution was in Federal court, Mr. Holder scolded. He said I 

stand by that decision today, he said defiantly. Indeed, the Attorney General spent the entirety of his speech telling us that he was 

delivering justice to these poor families but of an inferior sort, not 

the powerful, well researched and documented case which not only 

would have proven the guilt of the accused, but would have allowed 

us to adhere to the bedrock traditions and values of our laws. 

Of course, the implication was clear. Military commissions are 

none of this. Worse, the unwise and unwarranted interference of 

Congress in limiting the President’s ability to bring terrorists to 

U.S. soil has actually created the potential for harm to national security. How he does not say. We are simply left to ponder the serious ramifications of congressional trespass which is so dangerous 

the Obama administration will continue to seek to reverse the irresponsible actions of the people’s representatives, lest they attempt 

to deliver second-class justice to other Guantanamo detainees. 

Today, however, we are stuck with military commissions, and 

here at last is the bitterest pill that Mr. Holder coldly serves up. 

We have to miss this opportunity for the sort of grand justice only 

the Federal courts are capable of delivering because the families of 

the victims demand it. 

The families who had waited 7 long years when President 

Obama ground these cases to a halt were made to wait 2 more 

years by the Administration’s incoherent process. Let us be clear. 

The families were already tired of waiting when the Obama team 

arrived on the scene. Alleged concern for the plight of the families 

is Mr. Holder’s most contemptible conceit. 

Let us be crystal clear. The families had no say, no voice, no 

champions inside the Holder Justice Department. We were ignored, 

tolerated, overlooked, and misled. When it was apparent that we 

9 

did not support civilian trials for the war criminals who slaughtered our families as 200,000 troops risked their lives to fight the 

same enemy on the same battlefield, we were summarily dismissed 

from the process. We were not a cooperative bunch. Here is why. 

The process was preordained from day 1 and those of us who were 

paying attention know it. 

Mr. Holder told you yesterday he approached this case with an 

open mind, that his only goal was to look at the facts and the law 

and choose the venue where swift and certain justice could move 

and most effectively be achieved. What could be more swift and 

more certain than the defendant’s declaration 1 month before Mr. 

Obama took office that they wish to plead guilty to the charges and 

be executed? The families of the victims, some of whom were sitting in that courtroom when he made this proffer, were elated. At 

long last, we could begin the end of our terrible agonizing journey. 

President Obama prevented this from going forward. It was a 

campaign promise the President made and the Attorney General, 

then a private citizen campaigning for his candidate, told supporters Mr. Obama would fulfill it as one of his first presidential 

acts. Indeed, on the second day in office, the newly elected President signed sweeping executive orders which did away with all the 

work that Congress had accomplished in promulgating a legal 

framework for military commissions. And it nullified 3 years of 

case preparation by the Office of Military Commissions when they 

were just months away from the conclusion of the case. These campaign promises were made. They were delivered. The signals by 

this Administration are clear. 

The 10th anniversary of 9/11 rapidly approaches. The national 9/ 

11 memorial at the World Trade Center will be opening. The Flight 

93 memorial at Shanksville, Pennsylvania will be opening. The 

eyes of the world will once again be focused on Ground Zero. What 

is the world going to say? What will the world think where America has not demonstrated the political will or the moral courage to 

have already brought confessed perpetrators of this act to justice? 

It is shameful. It is disappointing. It hurts. 

[The prepared statement of Mr. Beamer follows:] 

10 

Prepared Statement of David Beamer 


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Mr. SENSENBRENNER. Thank you, Mr. Beamer. [Applause.] 

The Chair will remind members of the audience and Members of 

the Committee that it is against the rules of the House of Representatives and thus the Committee to make expressions of either 

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nesses or by Members of the Committee and will ask that future 

expressions be taken out into the hallway. 

Mr. Stimson, you are recognized for 5 minutes. 

TESTIMONY OF CHARLES D. STIMSON, SENIOR LEGAL 

FELLOW, THE HERITAGE FOUNDATION 

Mr. STIMSON. Mr. Chairman, Ranking Member Scott, and Members of the Committee, I want to thank each of you for holding this 

hearing today and for inviting me to testify. Thank you. 

This hearing could not be more timely. Yesterday’s announcement vindicates this Subcommittee’s work and probably would not 

have happened without the real leadership exercised by Members 

of the Subcommittee. But this hearing is appropriately looking forward, not backwards. 

Over the years, a strong bipartisan consensus on the use of military commissions has emerged and has become the dominant position in Washington. Even President Obama, once a critic of trials 

by military commission, has acknowledged that they are—and I 

quote—an appropriate venue for trying detainees for violations of 

the laws of war. Unquote. And that they protect our vital national 

security interests and that they provide appropriate safeguards and 

procedural rights for those tried. I agree with the President on 

those points and welcome his Administration’s announcement yesterday. 

But I remain concerned that this Administration is not fully supportive or even invested in commissions. So my message today is 

simple. Now that the right decision has been made, stand by it and 

provide commissions the appropriate resources. 

I have three points. 

First, certain cases will require the use of military commissions 

rather than civilian courts. 

Second, military commissions provide robust procedural protections to defendants. 

And third, the Administration and this Congress should fully resource commissions to ensure their success. 

And let me take each in order. 

The first is that for practical reasons, certain cases face hurdles 

to try in civil courts and will need to be brought before military 

commissions. In Federal court, criminal defendants receive the full 

panoply of procedural and substantive rights guaranteed by the 

Constitution, but those guarantees were never intended to extend 

to enemy belligerents, and indeed, they would render effective prosecution in many cases just impossible. U.S. soldiers on battlefields, 

whether in the war on terror or a more conventional armed conflict, do not mirandize enemy fighters, do not apply to magistrate 

judges for search and arrest warrants, and do not offer captured 

enemy fighters the customary opportunity to call an attorney. The 

Constitution does not, of course, require that soldiers do any of 

these things, nor does it require that we extend to captured belligerents the same procedural protections that apply to criminal defendants. Those requirements, however, would apply in a Federal 

courtroom and could derail the prosecution. 

Consider, for example, the right to a speedy trial, which is guaranteed to criminal defendants by the Sixth Amendment. If the AdVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
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ministration tried KSM in Federal court at this late date, there is 

a substantial risk that it would not have been able to provide a 

legal justification for the years of delay in bringing him to trial. 

Lack of political courage in making a forum selection is not a cognizable legal excuse. As a result, all charges would have been dismissed. That is fine in a regular run-of-the-mill criminal case, but 

in war the stakes are much higher. 

Or consider the bar on most hearsay evidence as required by the 

Sixth Amendment’s Confrontation Clause. In a Federal court, the 

rule against hearsay could keep out reams of military intelligence 

and other reliable evidence in a terrorist prosecution, evidence that 

was gathered not with an eye toward law enforcement, but for the 

purpose of national defense. In a military commission, unlike in 

Federal court, hearsay is admissible as long as the side offering the 

statement can show that it is reliable. 

Another practical consideration is incentives. The rules of war 

codified in the Geneva Conventions create a set of incentives for 

belligerents. Follow the rules and if you are captured, you will be 

accorded the benefit of those rules. But by trying unprivileged 

enemy belligerents in Federal court instead of military commissions, we reward the violation of those rules and give those belligerents greater protections than a typical lawful prisoner of war 

would receive. That is dangerous policy. 

My second point. Military commissions provide robust procedural 

protections to detainees, and I have included a chart in my testimony, Mr. Chairman and Ranking Member Scott, where you can 

look at that. 

And my third point is this. Now that KSM will finally be tried 

before a military commission, the Administration and Congress 

must take every reasonable step to ensure that the trial is an exemplar of justice and the rule of law. This will take resources. 

Chief among them are the attorneys who will prosecute and defend 

the case. We need the very best our country has to offer. The Department of Justice should detail its top terrorism prosecutors to 

these cases. Although exceptionally talented, hard-working, and intelligent, many of the JAG’s who are currently detailed to commissions simply do not have the requisite trial experience to handle a 

case of this complexity and weight on their own. The solution is collaboration. Federal prosecutors, once detailed as lead prosecutors to 

the commissions, must work with JAG prosecutors. Similarly for 

the defense, the Administration should ensure that learned counsel, military and Federal defenders are detailed to these cases. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Stimson follows:] 

Prepared Statement of Charles D. Stimson 

I would like to thank Chairman Sensenbrenner, Ranking Member Scott, and 

members of the Subcommittee for inviting me to testify today on the use of military 

commissions to try appropriate war crimes, including the 9/11 conspiracy. 

My name is Charles Stimson, and I am a Senior Legal Fellow at The Heritage 

Foundation, where I work on legal and policy issues related to national security, 

homeland security, and the criminal law. I am also a Commander in the United 

States Navy JAG Corps (Reserve Component), serving as a military trial judge. In 

my 18 years of service in the Navy, I have served three tours on active duty, including time as a prosecutor and defense attorney. I have been privileged to be a local, 

state, and federal prosecutor, and an adjunct law professor at The George Mason 

18 

1 Remarks by the President on National Security, THE WHITE HOUSE, May 21, 2009, http:// 

www.whitehouse.gov/thelpresslKoffice/Remarks-by-the-President-On-National-Security-5–21– 

09/. 2Senator Carl Levin, Opening Statement at Senate Committee on Armed Services Hearing 

to Receive Testimony on Legal Issues Regarding Military Commissions and the Trial of Detainees for Violations of the Law of War, July 7, 2009, http://www.loc.gov/rr/frd/MilitarylLaw/pdf/ 

Senate-Armed-Services-July-7–2009.pdf. 3Senator John McCain, Statement at Senate Committee on Armed Services Hearing to Receive Testimony on Legal Issues Regarding Military Commissions and the Trial of Detainees for 

Violations of the Law of War, July 7, 2009, http://www.loc.gov/rr/frd/MilitarylLaw/pdf/SenateArmed-Services-July-7–2009.pdf. 

School of Law and the Naval Justice School. Most relevant to today’s hearing, from 

2006 through 2007 I served as Deputy Assistant Secretary of Defense for Detainee 

Affairs, a position created in 2004 to advise the Secretary of Defense on all matters 

related to Department of Defense detainees, including those in Iraq, Afghanistan, 

and Guantanamo Bay. 

The views I express in this testimony are my own, and should not be construed 

as representing any official position of The Heritage Foundation, the Department 

of Defense, the Department of the Navy, or the Navy Judge Advocate General’s 

Corps. 

Today, there is broad bi-partisan consensus that military commissions provide robust procedural protections to those prosecuted, are appropriately adapted to the 

needs and exigencies of the war on terrorism, and, ultimately, are the appropriate 

venue for trying terrorists who commit war crimes. 

The breadth of this consensus, on a topic that had sown division only a few years 

in the past, is remarkable. President Obama, for one, has said that military commissions ‘‘are an appropriate venue for trying detainees for violations of the laws of 

war’’ because ‘‘[t]hey allow for protection of sensitive sources and methods of intelligence gathering . . . [and 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.’’ 1

Senator Carl Levin, Chairman of the Senate Armed Services Committee, said at 

the introduction of the Military Commissions Act of 2009 before his committee that 

he believed commissions ‘‘can play a legitimate role in prosecuting violations of the 

law of war.’’ 2

Ranking Member John McCain echoed that sentiment. He said: ‘‘I believe we’ve 

made substantial progress that will strengthen the military commissions system 

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

greater efficiency toward a just and fair result.’’ 3

This bi-partisan consensus makes sense, especially when one understands the robust due process rights and procedural protections contained within the reformed 

military commissions. What does not make sense is the Obama Administration’s 

continued policy of delayed justice and failure to refer cases to military commissions. 

To move the process forward, three points must be understood. The first is that 

we are at war and that military commissions provide essential capabilities, which 

are unavailable in federal courts, in support of the war effort. The second is that, 

under current law, commissions provide due process protections that are unparalleled in the history of war crimes tribunals, and they provide these safeguards right 

now, not at some uncertain future date. The third is that, putting it all together, 

there is no excuse for further delay in referring 9/11 cases to trial by military commissions. 

Let me address each point in turn. 

First, we are at war, and there are strong practical considerations militating in 

favor of the use of commissions. In the years leading up to September 11, 2001, acts 

of transnational terrorism that affected United States interests were treated, for the 

most part, as criminal law matters in federal court. The United States was not in 

a continuing legal state of armed conflict, and the use of federal courts was the only 

litigation option for bringing terrorists to justice. 

As a former federal prosecutor, I have immense respect for our federal courts. 

Federal terrorism prosecutors have the requisite experience in trying complex cases 

and federal courts will continue to play a role in this war. 

For example, I supported the administration when it sent Ahmed Ghailani to federal court for his role in the 1998 embassy bombing case. The facts of that case were 

unique. For instance, the sites of the acts were treated as crime scenes from the 

moment the bombs went off; law enforcement officials from Kenya, Tanzania, and 

the United States preserved valuable evidence from the beginning, including reading suspects rights warnings; all evidence was collected prior to 9/11; and the coVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
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4 Charles D. Stimson, First—and Perhaps Last—Gitmo Inmate Brought to America, June 13, 

2009, http://www.heritage.org/Research/Commentary/2009/06/First-and-perhaps-last-Gitmo-Inmate-Brought-to-America?RenderforPrint=1. 5Keith J. Allred, Military Commissions: The Right Venue for KSM, THE WALL

STREET JOURNAL, Apr. 19, 2010, 

http://online.wsj.com/article/SB10001424052748703444804575071880705027218.html. 6 Barker v. Wingo, 407 U.S. 514 (1972). 

7 United States v. Ghailani, No. S10 98 Crim. 1023(LAK), 2010 WL 2756546 at *16 (S.D.N.Y. 

July 12, 2010). 8Fed. R. Evid. 801 (2011). 

9See Crawford v. Washington, 541 U.S. 36 (2004) et seq. 

conspirators were tried, convicted, and sentenced to long sentences before 9/11. 

Ghailani was indicted for his crimes at the time, but was not apprehended until 

after 9/11. Trying Ghailani in federal court for that pre-9/11 terrorist act was simply 

finishing up the unfinished business of the 1998 embassy bombing cases.4

But the events of 9/11 have forced our leaders, including Presidents Bush and 

Obama, to recognize the need to have at their disposal all lawful tools, including 

military commissions, to confront and defeat this enemy. 

Consider the litigating risks of trying Khalid Sheikh Mohammad, or ‘‘KSM,’’ in 

federal court, versus before a military commission. Some of those risks are similar. 

For example, in both venues, KSM will likely attempt to take advantage of the 

‘‘stage’’ of the courtroom to spew out his hatred of the West and embrace the call 

to global jihad. Similarly, regardless of where KSM is tried, the trial will take years 

to finish, as there will be substantial pretrial discovery, myriad motions, and long 

delays. 

But military commissions do not give unprivileged enemy belligerents all of the 

rights guaranteed to criminal defendants in federal court, and they shouldn’t. Furthermore, as the judge in the Salim Hamdan military commissions’ trial wrote, 

‘‘. . . the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful 

combatants.’’ 5

Consider just one right, the right to a speedy trial, which is guaranteed to criminal defendants in federal court by the Sixth Amendment.6 In the federal terrorism 

trial of Ahmed Ghailani, the federal district judge issued a ruling on whether the 

government had violated Ghailani’s speedy trial rights. In denying Ghailani’s motion, he analyzed the underlying facts and utilized the four-factors enumerated in 

Barker v. Wingo. He found the government’s reason for delay ‘‘weak,’’ but nonetheless denied the motion.7 The ruling was close. 

Here, if the Administration were to try KSM in federal court at this late date, 

there is a substantial risk that it would not be able to provide a credible legal justification for the years of delay in bringing him to trial. Lack of political courage 

in making a forum selection is not a cognizable legal excuse. The result: all charges 

would be dismissed in federal court. In a run-of-the-mill criminal trial, this might 

make sense: the government has to get on with its case or forfeit its ability to prosecute. But in war, the stakes are much higher. 

The Military Commissions Act of 2009 does not give defendants a constitutional 

Sixth Amendment right to a speedy trial. 

Another difference between military commissions and federal courts concerns 

hearsay. In federal court, hearsay is generally inadmissible,8 unless the offered 

statement falls into one of the exceptions to the general prohibition. Even if the outof-court statement falls under an exception, otherwise relevant evidence may still 

be inadmissible as it might violate a defendant’s rights under the Sixth Amendment’s Confrontation Clause, and thus be inadmissible.9

But in military commissions and international tribunals, hearsay is admissible as 

long as the side offering the statement can demonstrate to the judge that it is reliable, material, probative, and that direct testimony from the witness is not available 

as a practical matter. Once admitted, the finder of fact then can decide what weight, 

if any, to give the statement. 

This evidentiary difference is necessary and practical in the presentation of war 

crimes’ cases. 

Keep in mind that this isn’t just a benefit to the prosecution. Both sides benefit 

from the use of the commissions’ hearsay rules, and the finder of fact has more information, not less, with which to render a considered judgment. 

There is also the matter of incentives. The rules of war codified in the Geneva 

Conventions create a set of incentives for belligerents: follow the rules and, if you’re 

captured, you’ll be accorded the benefits of those rules. But by trying unprivileged 

enemy belligerents in federal court—instead of military commissions—we reward 

the violation of those rules and give those belligerents greater protections than a 

20 

typical lawful prisoner of war would receive. This practice upends the carefully 

crafted incentive structure of the Geneva Conventions, and is harmful. 

Finally, there is an ongoing debate among legal scholars as to whether the crimes 

of conspiracy and material support to terrorism are traditional war crimes. The debate continues, and likely will unless or until the United States Court of Military 

Commissions Review or higher appellate courts rule on the issue. But that debate 

is irrelevant to the topic at hand. The government has ample direct and circumstantial evidence to prove the 9/11 case, and can rely on traditional war crimes statutes 

to charge KSM and the 9/11 plotters. 

Second, reformed military commissions provide robust protections to detainees, 

more so than any other international war crimes tribunal ever created. Indeed, they 

are specifically modeled after and adapted from the established procedures and 

rules of evidence found in the Uniform Code of Military Justice. Although neither 

traditional criminal law nor the law of war provide clear answers to the multitude 

of detainee issues that have arisen since 9/11, it is clear that under Common Article 

3 of the Geneva Conventions and Supreme Court precedent, unlawful combatants 

are entitled to be tried by a ‘‘regularly constituted court that affords all the judicial 

guarantees . . . recognized as indispensable by civilized peoples.’’ 

And when one compares the procedural protections and rules contained in the 

Military Commissions Act of 2009 to standard U.S. courts-martial and other international tribunals, as I have, you see that today’s commissions offers unlawful combatants more robust due process and protections that any international tribunal 

ever created. 

The United States has led the world in the development of the law for a long 

time. The rules and procedures embodied in the Military Commissions Act of 2009 

are fairer than the rules used at Nuremberg after World War II, the current International Criminal Court, and the International Criminal Courts of Yugoslavia and 

Rwanda. Perhaps in the years to come, international tribunals may look to the Military Commissions Act of 2009 as a model for enhancing their rules and procedures. 

Those protections, which I have detailed in a comparison chart attached to my remarks, include but are not limited to: 

1. The legal presumption of innocence throughout the trial; 

2. Proof beyond a reasonable doubt is required to convict; 

3. Protection from self-incrimination; 

4. The right to be present whenever evidence is admitted; 

5. The right to counsel; 

6. The right to present and call witnesses; 

7. The right to cross-examine government witnesses who appear in court; 

8. The right to pretrial discovery of all evidence to be introduced at trial; 

9. A prohibition on use of statements obtained through cruel, inhuman and degrading treatment 

10. The right to remain silent, without any adverse inference; 

11. The right to introduce evidence through expert witnesses; and 

12. The right to introduce reliable hearsay evidence. 

We should judge the fairness of these procedures by whether we would feel comfortable if our own military personnel were subjected to similar procedures. We 

should also ask whether they are consistent with our values as Americans. 

The answer to both questions is ‘‘yes.’’ And that is not just my position, but the 

implicit position of the Obama Administration and inescapable conclusion of many 

Members of Congress from both sides of the aisle. 

Finally, we are almost a decade from 9/11, and we still don’t have a decision on 

where these cases are to be tried. The victims haven’t had their day in court. That’s 

wrong. Delay also does not benefit the detainees, as they deserve a decision as well. 

At this point in time, it is time for leaders to lead, and make a decision. We pay 

our leaders to do just this. And for 10 years, no decision has been made. 

The administration is to be commended for reforming and keeping military commissions. But it is now time for the administration to start referring cases to military commissions, including the 9/11 case. The President’s Detainee Policy Task 

Force concluded, ‘‘Justice for the many victims of the ruthless attacks of al Qaeda 

and its affiliates has been too long delayed.’’ The Administration has established a 

protocol governing the disposition of Guantanamo cases for prosecution. Any objective analysis of the three factors in that protocol leads to but one conclusion: the 

lead actors who caused the United States to go to war for 9/11 deserve a war crimes 

tribunal. 

Members of Congress should call on the administration to take this step, to stop 

delaying, and to bring Khalid Sheikh Mohammad to justice in a military commission 

trial. Once that decision is made, it is imperative that the Congress provide the AdVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
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ministration, and in particular the Office of Military Commissions, with those resources its needs to fully support both the defense and prosecution teams to carry 

out their respective duties. 

I thank you for the opportunity to testify, and I look forward to our discussion. 

22 

ATTACHMENT 


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Mr. SENSENBRENNER. Thank you very much, Mr. Stimson. 

Ms. Hessler? 

TESTIMONY OF STEPHANIE HESSLER, FELLOW, 

MANHATTAN INSTITUTE FOR POLICY RESEARCH 

Ms. HESSLER. Chairman Sensenbrenner, Ranking Member Scott, 

Members of the Committee, I thank you for the opportunity to express my views about the use of military commissions to prosecute 

the September 11 plotters. 

In my view, the 9/11 conspirators should be tried by military 

commission, not in Federal court. I support the President’s decision 

announced yesterday that Khalid Sheikh Mohammed and nine others will have a military trial, and I commend Congress for the pivotal role it played in helping the Administration reach this decision. 

I will begin by briefly outlining the legal authority for military 

commissions. Our Founders understood the difference between 

keeping internal order through the criminal justice system and protecting against external threats from our enemies. The Constitution gives Congress the power to define and punish offenses against 

the law of nations. Congress has repeatedly exercised this power to 

establish military commissions. 

Indeed, the United States has used military tribunals throughout 

its history, including in the War of 1812, the Mexican-American 

War, the Civil War, and World War II. As the Supreme Court confirmed in Ex parte Quirin, quote, unlawful combatants are subject 

to trial and punishment by military tribunal. 

Shortly after the September 11 attacks, President Bush established military commissions to try foreign jihadists for war crimes. 

In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that 

military commissions needed congressional approval and invited 

Congress to enact legislation. Soon after, Bipartisan majorities of 

Congress passed the Military Commissions Act of 2006, which was 

amended in 2009. 

Before the September 11 attacks and the subsequent establishment of military commissions, we had to try foreign jihadists in the 

criminal justice system. But as we learned on 9/11, trying alleged 

terrorists after an attack does little to prevent the next one. After 

September 11, we changed our approach to terrorism, shifting focus 

from punishment to prevention. 

For at least three reasons, our prosecuting foreign war criminals 

in Federal court may undermine counterterrorism goals. And military commissions are specifically designed to mitigate these risks. 

First and foremost, we need to protect classified information from 

our enemies. Acquiring intelligence is one of the most crucial 

means for penetrating and dismantling terror networks. Obtaining 

classified information can be a prolonged, painstaking, and often 

very dangerous job for our intelligence agents. Such information 

must be vigorously safeguarded. 

Criminal trials, however, risk disclosing top secret information to 

our enemies. A Federal judge has discretion to order classified materials released, and if the Government does not comply, the judge 

may order the indictment dismissed. The Government may be in a 

28 

catch 22 of either disclosing classified intelligence or risking dismissal of charges. 

Congress sensibly addressed this issue in the MCA. The Government may redact and summarize material and cannot be compelled 

to disclose classified information to anyone lacking a security clearance. 

Likewise, we must protect information that is not classified but 

could, nonetheless, aid our enemies in their fight against us. Because criminal court proceedings are required to be public under 

the Sixth Amendment, sensitive information may freely flow to our 

enemies. For example, in the trial of Sheikh Omar Abdel-Rahman 

for the 1993 World Trade Center bombings, the prosecution made 

a routine disclosure to the defense lawyer of a list of unindicted coconspirators. We learned later that this valuable list of key terror 

suspects reached Osama bin Laden halfway around the world within 10 days. 

Likewise in that case, there was extensive data about the engineering and construction of the World Trade Center. It is certainly 

possible that terrorists used this information to design and plot the 

attacks that destroyed the buildings a few years later. 

Congress recognized that the transparency of criminal trials may 

undermine our national security. Therefore, while military trials 

are generally public, a judge is permitted to close proceedings in 

order to protect national security. This flexibility is vital to ensuring that terrorists do not turn into a feast of counterterrorism data 

for terrorists at large. 

Second, bringing Federal criminal actions may not only reveal information, it may also impede intelligence gathering, as criminal 

defendants must be read Miranda warnings. But when an alien 

terrorist is apprehended, national security interests demand that 

we acquire information to prevent a future attack and neutralize 

security threats. Starting off with ‘‘you have the right to remain silent’’ is not the way to gain counterterrorism data. Congress recognized that reading terrorists Miranda warnings would severely 

hinder intelligence gathering and compromise counterterrorism efforts. Therefore, in military commissions, detainee statements are 

admissible if a judge determines that they are reliable, probative, 

and made during lawfully conducted military operations. 

Third, Federal prosecutions can place an undue burden on military efforts. 

In conclusion, it is the right decision to try the 9/11 plotters in 

military commissions, not in Federal court. Criminal trials may undermine our national security by revealing important information 

to our enemies, impeding intelligence gathering, and placing undue 

burden on military operations. There is no reason to gamble with 

America’s security. 

[The prepared statement of Ms. Hessler follows:] 

Prepared Statement of Stephanie Hessler 

Mr. Chairman, Mr. Ranking Member, Members of the Committee: I thank you for 

the opportunity to express my views about the use of military commissions to prosecute the September 11th plotters and other detainees held at the Guantanamo Bay 

Detention Camp. 

In my view, the 9/11 conspirators should be tried by military commission—not in 

federal court. I will focus my remarks on the risks of federal criminal prosecutions 

29 

1 Ex Parte Quirin, 317 U.S. 1, 31 (1942). 2 548 U.S. 557 (2006). 

3 Classified Information Procedures Act, 18 U.S.C. App.3; See also U.S. CONST. Amend. VI. 

(granting the accused the right ‘‘to be confronted with the witnesses against him.’’). 4 Classified Information Procedures Act, 18 U.S.C. App.3. 

5Military Commissions Act, 10 U.S.C. 949 p-1(a) (‘‘Classified information shall be protected 

and is privileged from disclosure if disclosure would be detrimental to the national security. 

Under no circumstance may a military judge order the release of classified information to any 

person not authorized to receive such information.’’). 

and the ways in which military commissions may alleviate these risks. I will also 

comment briefly on the substantial due process that military commissions afford the 

accused. 

I. LEGAL AUTHORITY FOR MILITARY COMMISSIONS

I would like to begin by briefly outlining the legal authority for military commissions. Our founders understood the difference between keeping internal order, 

through the criminal justice system, and protecting against external threats from 

our enemies, through military action. Article I, Section 8, clause 10, of the Constitution gives Congress the power to ‘‘define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.’’ Congress has 

repeatedly exercised this power to establish military commissions. 

Indeed, the United States has used military tribunals throughout its history, including in the War of 1812, the Mexican-American War, the Civil War and World 

War II. As the Supreme Court confirmed in Ex Parte Quirin, ‘‘unlawful combatants 

are . . . subject to trial and punishment by military tribunal.’’ 1

Shortly after terrorists attacked us on September 11th, President Bush established military commissions to try foreign jihadists for war crimes. In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the Uniform Code of Military Justice required certain procedural protections for military commissions and invited 

Congress to enact legislation.2 In reaction to Hamdan, bipartisan majorities of Congress passed the Military Commissions Act of 2006, which was amended in 2009 

(‘‘the MCA’’). 

II. MILITARY COMMISSIONS ALLEVIATE THE RISKS INVOLVED WITH FEDERAL CRIMINAL

PROSECUTIONS FOR UNLAWFUL ENEMY COMBATANTS. 

In the years before the September 11th attacks and the subsequent establishment 

of military commissions, foreign terrorists were tried in our criminal justice system. 

But as we learned on 9/11, trying alleged terrorists after an attack does little to prevent the next one. After September 11th, we changed our approach to terrorism— 

shifting focus from punishment to prevention. 

For at least three reasons, prosecuting foreign war criminals in federal court may 

undermine our counterterrorism goals. Civilian trials may (A) reveal classified and 

sensitive information to our enemies, (B) hinder intelligence gathering, and (C) burden military operations abroad. The military commissions enacted by Congress are 

specifically designed to alleviate these risks while granting the accused substantial 

procedural protections. 

A. Protecting Information 

i. Classified Intelligence 

First and foremost, we need to protect classified information from our enemies. 

Acquiring intelligence is one of the most crucial means for penetrating and dismantling terror networks and protecting our national security. Obtaining classified communications and operational capabilities of terrorist groups can be a prolonged, 

painstaking and often very dangerous job for our intelligence agents. Such information—including sources and methods of intelligence gathering—must be vigorously 

safeguarded. 

Criminal trials, however, risk disclosing top-secret information to our enemies. In 

such a trial, the federal judge has discretion to order classified materials released 

if it deems substitutes inadequate.3 And, if the government refuses to disclose classified information, the judge may order the indictment dismissed.4 This can put the 

government in a catch-22 of either disclosing classified intelligence or risking dismissal of charges. 

Congress sensibly addressed this issue in the Military Commissions Act. In a military trial, the Government cannot be compelled to disclose classified information to 

anyone who does not have the proper security clearance.5 If the judge determines 

that access to the information is necessary, the government may redact portions of 

30 

6 10 U.S.C. 949 p-4(b) (‘‘The military judge, in assessing the accused’s discovery of or access 

to classified information under this section, may authorize the United States—(A) to delete or 

withhold specified items of classified information; (B) to substitute a summary for classified information; or (C) to substitute a statement admitting relevant facts that the classified information or material would tend to prove.’’). 7 10 U.S.C 949 p-4(c) (‘‘An order of a military judge authorizing a request of the trial counsel 

to substitute, summarize, withhold, or prevent access to classified information under this section 

is not subject to a motion for reconsideration by the accused, if such order was entered pursuant 

to an ex parte showing under this section.’’). 8 U.S. CONST. Amend. VI. (‘‘In all criminal prosecutions, the accused shall enjoy the right to 

a speedy and public trial.’’). 9 Andrew C. McCarthy, WILLFUL BLINDNESS: A MEMOIR OF THE JIHAD, 2008 at 304. 10Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists? A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval 

Base, 25 Harv. J.L. & Pub. Policy 591 2002 at 609. 11 10 U.S.C. Section 949(d)(c)(2)(a). 12 U.S. CONST. Amend. V. (No person ‘‘shall be compelled in any criminal case to be a witness 

against himself.’’). 13Miranda v. Arizona, 384 U.S. 436 (1966). 

the information, submit a summary, or substitute a statement admitting facts that 

the classified material would tend to prove.6 Furthermore, such an order by a military judge may not be reconsidered.7

ii. Sensitive Information 

Likewise, the United States also has an interest in protecting information that 

may not be classified but could nonetheless aid our enemies in their fight against 

us. Because criminal court proceedings are required to be public under the Sixth 

Amendment of the Constitution, sensitive information may freely flow to our enemies.8 For example, in the trial of Sheikh Omar Abdel-Rahman for the 1993 World 

Trade Center bombings, the prosecution made a routine disclosure to the defense 

lawyer of a list of unindicted co-conspirators. According to Andrew McCarthy who 

prosecuted the case, this valuable list of key terror suspects reached Osama bin 

Laden, halfway around the world, within ten days.9

Likewise, in that case, there was extensive data about the engineering and construction of the World Trade Center building.10 It is certainly possible that terrorists used this information to design and plot the attacks that destroyed the buildings a few years later. 

Congress recognized that the transparency of criminal trials may undermine the 

goal of protecting our national security. Therefore, the Military Commissions Act 

provides that while military trials are generally public, the judge is permitted to 

close proceedings in order to protect national security interests, safeguarding intelligence and law enforcement sources, methods and activities.11 This flexibility is 

vital to ensuring that trials do not turn into a feast of national security information 

for terrorists at-large. 

B. Miranda Warnings Impede Intelligence Gathering 

Bringing federal criminal actions may not only reveal sensitive information, it 

may also impede intelligence gathering. The Fifth Amendment of the Constitution 

protects criminal defendants from self-incrimination.12 The Supreme Court has held 

that statements of the accused are not permitted in criminal trials unless the defendant was advised of his rights.13 FBI and law enforcement generally read Miranda warnings immediately upon arrest so as to preserve evidence for prosecution. 

But the U.S. Constitution does not give foreign wartime enemies the privilege to 

be tried in federal court and thus shielded from self-incrimination. When an alien 

terrorist is apprehended, our national security interests demand that we acquire as 

much information as possible to prevent a future attack and neutralize security 

threats. Any intelligence officer will tell you that starting off with, ‘‘you have the 

right to remain silent . . .’’ is not the way to gain counterterrorism data. 

Take, for example, the case of Umar Farouk Abdulmutallab, otherwise known as 

the Christmas Day bomber. The self-professed al Qaeda-trained operative attempted 

to explode a flight from Amsterdam to Detroit the Christmas before last. Despite 

the fact that Abdulmutallab is a Nigerian national, with no right under any statute 

or the Constitution to be tried as a U.S. civilian, the Obama administration immediately decided to grant him the rights of a U.S. citizen. In a first round of questioning, he disclosed his al Qaeda training in Yemen and mentioned additional terrorist plots. But after only 50 minutes of questioning, he was given Miranda warnings and told he had the right to remain silent and the right to obtain a lawyer— 

compliments of the taxpayers he had just tried to explode. Needless to say, he quickly became reticent after receiving these warnings. 

31 

14 10 U.S.C. 948r(c) (‘‘A statement of the accused may be admitted in evidence in a military 

commission under this chapter only if the military judge finds—(1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) 

that—(A) the statement was made incident to lawful conduct during military operations at the 

point of capture or during closely related active combat engagement, and the interests of justice 

would best be served by admission of the statement into evidence; or (B) the statement was voluntarily given.’’). 15Federal Rules of Evidence 802; U.S. CONST. Amend. VI. 16 10 U.S.C. 949a(b)(3)(D). 17 10 U.S.C. 949a(b)(3)(D)(ii)(III). 18 10 U.S.C. 949a(b)(3)(D). 19 10 U.S.C 949(l)(c)(1) (‘‘the accused must be presumed to be innocent.’’). 20 10 U.S.C 949(l)(c)(1) (‘‘the accused must be presumed to be innocent until the accused’s guilt 

is established by legal and competent evidence beyond a reasonable doubt.’’). 21 10 U.S.C 948(k) (Military defense counsel for a military commission under this chapter shall 

be detailed as soon as practicable.). 22 10 U.S.C. 949(h) (No person may, without the person’s consent, be tried by a military commission under this chapter a second time for the same offense.’’); 10 U.S.C 950d(b) (‘‘In no case 

may a proceeding in revision (i) reconsider a finding of not guilty of a specification or a ruling 

which amounts to a finding of not guilty.’’). 23 10 U.S.C. 949(j)(b) (‘‘(1) As soon as practicable, trial counsel in a military commission under 

this chapter shall disclose to the defense the existence of any evidence that reasonably tends 

to (A) negate the guilt of the accused of an offense charged; or (B) reduce the degree of guilt 

of the accused with respect to an offense charged. (2) The trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence that reasonably tends to impeach the 

credibility of a witness whom the government intends to call at trial. (3) The trial counsel shall, 

as soon as practicable upon a finding of guilt, disclose to the defense the existence of evidence 

that is not subject to paragraph (1) or paragraph (2) but that reasonably may be viewed as mitigation evidence at sentencing. (4) 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 against the defendant.’’). 24 10 U.S.C. 950 (f). 25 10 U.S.C. 950 (g). 

Congress recognized that reading terrorists Miranda warnings would severely 

hinder intelligence gathering and compromise counterterrorism efforts. Therefore, in 

military commissions, detainees’ statements are admissible if a judge determines 

that they are reliable, probative and made during lawfully conducted military operations.14

C. Federal Prosecutions May Burden Military Operations 

Federal prosecutions may also burden military operations abroad. The facts in a 

transnational terrorism case often include second-hand statements, known as hearsay, which are generally prohibited in federal court.15 For example, key witnesses 

in such cases are often the soldiers or CIA agents who captured the defendant overseas. But these officers may still be engaged in combat abroad, and interrupting 

their counterterrorism mission to testify in federal court could place an undue burden on military efforts. 

Given the unique challenge of prosecuting war crimes while hostilities are ongoing, the military commission rules allow the government greater flexibility to introduce second-hand statements. The Military Commissions Act allows hearsay to be 

admitted if the judge determines that the statement is reliable and probative and 

the witness is not available.16 In determining whether to admit second-hand statements, the judge is specifically directed to take into account ‘‘the adverse impacts 

on military or intelligence operations that would likely result from the production 

of the witness.’’ 17 Just as important, the hearsay rule is reciprocal.18 So the accused 

may admit material to prove his defense that would otherwise be excluded under 

the Federal Rules of Evidence. 

III. UNLAWFUL ENEMY COMBATANTS ARE GRANTED SUBSTANTIAL DUE PROCESS

Finally, while the MCA mitigates many of the risks of criminal prosecution, it also 

affords the accused substantial procedural protections similar to those provided in 

federal court. In a military commission, (1) the accused is presumed innocent;19 (2) 

the Government must prove guilt beyond a reasonable doubt;20 (3) the accused has 

a right to counsel;21 (4) he is protected from double jeopardy;22 (5) the government 

is obligated to disclose exculpatory evidence;23 and (6) the accused has the right to 

appeal to a Military Review Court,24 then the United States Court of Appeals for 

the DC Circuit and finally petition the US Supreme Court.25

32 

V. CONCLUSION

In conclusion, the 9/11 plotters and other inmates held at Guantanamo should be 

tried in military commissions—not criminal court. Criminal trials may undermine 

our national security by revealing important information to our enemies, impeding 

intelligence gathering and placing an undue burden on military operations. There 

is no reason to gamble with America’s security. 

Mr. SENSENBRENNER. Thank you, Ms. Hessler. 

Professor Saltzburg? 

TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY 

Mr. SALTZBURG. Thank you, Mr. Chairman and Ranking Member 

Scott. 

I think there is agreement throughout the United States that it 

is outrageous that 10 years later KSM and his alleged colleagues 

have not been tried. Everybody wants them tried. If in fact they 

are guilty as they claim, everyone wants them punished, and it 

should be done as soon as possible. 

The question is what is the right forum. The Attorney General 

has now said it is going to be military commissions. His hands are 

tied. 

The sad fact is, because of the process from which we began in 

2001 when military commissions were first proposed, throughout 

the next decade, the constant refrain was we need military commissions because it is going to be easier to convict them. And that is 

the perception throughout much of the world, that military commissions are the forum of choice because it is easier to convict. I 

agree with that. It is going to be easier to convict them in a military commission. There is no doubt about it. The rules make it 

easier, and that is because the Government writes the rules. 

But what we ought to remember is this. The last word on those 

rules is not going to come from the executive. It is not going to 

come from this Congress. It is going to come from Federal judges, 

the same Federal judges who sit in Article III courts and have 

great pride in their ability to try terrorists and their commitment 

to the rule of law and their dedication to the same principles that 

everybody in this room shares. Now, those Federal judges down the 

road are going to ask whether the procedures were fair. Mr. 

Stimson says, well, maybe the speedy trial right would be violated 

if these defendants were tried in Federal court. Well, if that is so, 

maybe the Federal courts will say speedy trial applies even in commissions. We don’t know. That is a big problem with commissions. 

Let me remind you of something. It is not in my testimony, but 

it occurred to me. It is a point we shouldn’t forget. 

December 21, 1988 I was a Deputy Assistant Attorney General 

in the Reagan administration. It was the last month. I got a call 

from the command center. The command center said Pan Am 103 

has just disappeared from the radar. What do you want to do? Everyone above me in the Department of Justice was at the White 

House at the Christmas party. And I was there with the decision 

to make, and after consulting with colleagues, I said you treat this 

as a terrorist incident until you know otherwise. This is 1988. If 

anybody says it is an over-reaction, you just tell them blame beVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
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cause there is not going to be a headline that says Pan Am 103 

goes down and Justice goes home. 

And I have looked at terrorism issues from that day till now, and 

I want to remind you of something. The two Libyans who finally 

we managed to extricate from Libya for trial, according to special 

procedures that were adopted—one was acquitted; one was convicted. I assume that the Subcommittee understands his conviction 

is not yet final. This is in 2011. He was convicted. He was imprisoned. He was given compassionate release. His appeal is still pending. 

One of the problems with creating a new system is no one knows 

how it will turn out in the end, and before we go down that road, 

before we run the risk that 5 years from now we will have a court 

tell us the procedures were inadequate and therefore whatever 

guilty verdicts might be returned in a military commission in 

Guantanamo will be overturned by a Federal court, before we go 

that route, we ought to ask ourselves is that what we want to do. 

Do we want to send a message that there is something wrong with 

the judicial system that served us so well for more than 2 centuries, that showed us it can handle every single kind of case that 

comes its way? 

I just urge you to consider, when you think about where the end 

game is, that it may be all well and good to say let’s try him now, 

let’s try him in commissions, but if 5 years from now, it turns out 

all we did was for naught, people are going to say it was the wrong 

choice and it was a bad choice and we had a better choice available. 

Thank you. 

[The prepared statement of Mr. Saltzburg follows:] 

Prepared Statement of Stephen A. Saltzburg 

Chairman Sensenbrenner, Ranking Member Scott and Members of the Subcommittee, I thank you for inviting me to testify before you on the subject of using 

military commissions to try the 9/11 conspirators. 

REDEFINING THE QUESTION

I begin by noting that the real question is where to try those who are alleged to 

be conspirators. At the moment the five individuals who may be charged as principal participants in the horrific attacks on America that occurred on September 11, 

2001 have not been prosecuted in any tribunal. They remain presumed innocent irrespective of the assumptions that have been made by many as to their responsibility for the hijacking of airplanes and the killing of innocent people. 

TRY CASES IN ARTICLE III COURTS

My position on where those charged with the worst act of mass murder on American soil should be tried is clear: IN AN ARTICLE III COURT presided over by a 

judge appointed by the President and confirmed by the Senate and before a jury of 

American citizens chosen from a cross-section of the community as juries are chosen 

in the United States every working day. 

THE REASONS FOR USING ARTICLE III COURTS

Why do I think it is important for the trial to be in an Article III court? There 

are a number of reasons, many of which have been well articulated by thoughtful 

people over the years since the 9/11 attacks: 

1. Civilian courts are capable of handling complex terrorism and espionage cases. 

Their track record is strong. Over 400 terrorism-related suspects have been successfully tried in federal courts since 9/11. Only a handful of cases have been handled 

by military commissions, and the military commission process has been hampered 

by starts and stops, changes in the rules, and uncertainty about exactly how cases 

would proceed. 

34 

2. The life-tenure provided federal judges by the founders of this Nation is one 

of our fundamental guarantees that justice in federal courts will be impartial and 

that those who preside over criminal cases will not be beholden to the Executive. 

The independence of the federal judiciary is one of the factors that inspires confidence in the decisions rendered by federal courts. There is no comparable independence of military judges who preside over commissions. 

3. A civilian jury is one of the greatest democratic institutions that we have. It 

is chosen from throughout the community. It is inclusive. Men and women serve together. People of all races and religions are called to serve together. Individuals 

with varying education, expertise and experience serve as a unit to assess the 

strength and weakness of evidence. The jurors are screened for bias, and challenges 

for cause and peremptory challenges offer protections against jurors who are partial. 

The judgment of such jurors—as, for example, those who assessed a fair punishment 

for Zacarias Moussaoui—benefits from the many different perspectives that jurors 

bring to their deliberations. Military commission members are not drawn from a 

similar cross-section of the community, are chosen by the Convening Authority who 

also brings the charges against an accused, and will never be viewed as being as 

fair and impartial as a civilian panel. 

4. There is enormous skepticism about the fairness of military commissions that 

is largely explained by the now discredited procedures originally proposed to govern 

them. Had the procedures now in place as a result of the Military Commission Act 

of 2009 (‘‘MCA 2009’’) and improvements made by the Department of Defense been 

in place from the outset, some of the concerns about commissions would have been 

eliminated. But, the process has been slow and once doubts about the fairness of 

a tribunal arise, it is difficult if not impossible to eradicate them. 

5. Many public figures have proclaimed that we ought to use military commissions 

because they provide a greater certainty of conviction. Such comments fuel the perception that the rules governing the commissions are adopted with an eye to increasing the probability of conviction and a severe sentence rather than increasing 

the likelihood of a fair and just proceeding. Our goal should be to try individuals 

charged with these acts of mass murder in a manner that convinces our people and 

those around the world who look to us for leadership in preserving and protecting 

the rule of law that we are guaranteeing a fair trial for all charged with crimes, 

even the worst crimes. Our citizens and those of other nations are most likely to 

be convinced by trials in federal courts. 

6. The individuals charged with the 9/11 murders ought not be treated as warriors. We are in a fight against international terrorism. There is no mistake about 

it. But, terrorists who commit murder in the United States against innocent civilians are criminals who should be prosecuted as such. Those alleged to be responsible 

for the 9/11 attacks should be tried in civilian courts just as Timothy McVeigh was 

tried for the Oklahoma City bombing. He was proved to have been a murderer, sentenced to death, and executed. The federal court that tried him used the same procedures that govern criminal trials throughout the United States. Those procedures 

produced a fair trial and a just verdict. Those same procedures can and should be 

employed in trying those accused of the 9/11 attacks. 

7. There is a place for military commissions in the prosecution of terrorists. They 

are most defensible when employed to prosecute individuals who attack American 

military targets abroad, where witnesses and evidence may be uniquely available. 

But, they are not the forum for trying the most serious charges of intentional murder committed on American soil that may ever be brought. That forum is a federal 

district court. 

8. Some of the arguments made in favor of military commissions sound as though 

we do not trust civilian courts. The case of Ahmed Khalfan Ghailani is cited as an 

example of why we should avoid civilian courts. Although Ghailani was acquitted 

on all charges but one, his conviction on a conspiracy charge relating to the 1998 

East Africa Embassy bombings led to a life sentence without the possibility of parole. The fact that a civilian jury found the evidence insufficient on the other 

charges ought to inspire confidence that the trial was fair, the government was put 

to its proof as required by the Constitution, and there is no reason to question the 

integrity of the guilty verdict of conspiracy. 

Those that argue that the evidence deemed inadmissible against Ghailani would 

have been admissible in a military commission may be wrong. Judge Kaplan, the 

trial judge, stated in a footnote in his ruling that it was far from clear that the 

witness’s testimony would be admissible if Ghailani were being tried in a military 

commission because the MCA 2009 likely would require exclusion, but even if it did 

not the Constitution might do so even in a military commission proceeding. 

9. Although the rules of evidence that currently govern military commissions are 

more favorable to the prosecution than either the Federal Rules of Evidence applicaVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
35 

ble in federal courts or the Military Rules of Evidence applicable in courts-martial, 

there is uncertainty as to whether the commission’s evidence rules will ultimately 

be held to satisfy the Constitution’s guarantee of due process. We can be certain 

that the Federal Rules of Evidence will pass constitutional muster and that trials 

under those rules satisfy due process. The uncertainty as to whether the commission 

rules will ultimately be upheld is genuine and reason to avoid prosecuting the 9/ 

11 cases in any forum other than an Article III court. The Supreme Court’s decision 

in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), stands as a caution not to assume 

that federal courts that review commission proceedings will find that the procedure 

and evidence rules are constitutionally adequate. 

10. A trial in civilian court that results in a conviction could be appealed to a federal circuit court. If the conviction is affirmed, the defendant could seek review in 

the United States Supreme Court. The appellate process is familiar and can be efficiently employed. Military commissions will employ an appellate process that is less 

familiar and more cumbersome. First, there is review by the Convening Authority. 

Second, there is review by the Court of Military Commission Review, a unique tribunal that was created specifically to review commission proceedings whose membership keeps changing. Third, there is review by the United States Court of Appeals for the District of Columbia Circuit. Finally, there is potential review by the 

United States Supreme Court. There is every reason to believe that the military 

commission appellate process will be more prolonged than its civilian counterpart. 

RESPONSES TO THE ARGUMENTS AGAINST ARTICLE III COURTS

I am not persuaded that there is any insurmountable problem with trying those 

accused of the 9/11 murders in civilian court. So let me address some of the so-called 

problems. 

1. Security for the trial will be prohibitively expensive and disruptive. 

This could be true if the trial were held in lower Manhattan and the New York 

Police Department concluded that prudence required a massive security presence 

and a substantial cordoned-off area. Although some have questioned the need for 

such security and have pointed to the fact that Ghailani was transferred to New 

York City from Guantanamo and was tried without incident, I would not secondguess the NYPD. There is no requirement that the trial be held in New York, however. It could be held in the Eastern District of Virginia, where the Alexandria federal courthouse is already relatively secure. 

The case could also be initiated in the Southern District of New York, and either 

side could move for a change of venue. The case could be tried, for example, in New 

Jersey where a federal court sits next to a detention facility and defendants may 

be moved from the facility to the court through an underground tunnel. Such a 

forum ought to cut security costs and ameliorate threat concerns considerably. 

Moreover, if there were reason to believe that a specific threat of retaliation were 

directed at the location of a trial, an Article III trial could be convened at a military 

installation in the United States where security would presumably be adequate to 

thwart any attempt at retaliation. 

There is surely good reason to question the assumption that if the trial is held 

in a military commission in Guantanamo, there will be no attempted retaliation by 

sympathizers of the defendants. After all, retaliation can be directed at any American facility; it need not be directed at the courthouse where a defendant is tried. 

The World Trade Center buildings were attacked as symbols. Any terrorist who 

sought to retaliate against the United States for trying those accused of the 9/11 

attacks could choose another symbol far removed from the trial itself. So, no one 

should be choosing a military commission as a means of avoiding potential retaliation. 

2. Civilian trials put judges and jurors at risk. 

It is true that a federal judge who presides over a trial involving any individual 

associated with a criminal enterprise could be the target of retaliation. The danger 

is ever present when judges sentence a member of a group that is known to engage 

in violence. Yet, our federal judges have not hesitated to preside over these trials. 

Indeed, our judges fully understand that the rule of law would be weakened if they 

did not meet their responsibilities even at some risk. It is true security may be required for a judge after some cases, but we have provided it in the past and should 

be prepared to provide it when necessary to enable our judges to do their jobs. 

What is true of physical locations is also true of people. One terrorist sympathizer 

could retaliate against the trial of another terrorist by retaliating against any government officer. There are no rules governing retaliation. A terrorist could retaliate 

against a military commission proceeding by targeting a judge, a member of ConVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
36 

gress, or a civilian who had nothing to do with the proceeding. The fact is that there 

is no way to guarantee that there will be no retaliation as a result of any trial. 

As for jurors, federal courts have considerable experience impaneling anonymous 

juries and their use has been upheld by appellate courts. As a result, jurors have 

been willing to serve and have been safe from retaliation. There is no reason to believe that anonymous juries could not be employed in the 9/11 cases or that their 

use would put jurors at risk. 

3. The prosecution has a better chance of convicting in military commissions than 

in civilian court. 

I agree that this is true, but do not see it as a reason to choose commissions. 

Quite the contrary, I see it as one of the reasons that there is so much concern and 

distrust about commissions. Evidence that would never be admitted in a federal 

trial or a court-martial can be admitted in a commission proceeding. Why? The answer is that the Executive makes the rules. That does not equate with fair and just 

proceedings in the eyes of many. It also supports the notion that when federal 

courts finally do get to review commission proceedings they may find the rules favoring the government to deny due process to a defendant, as noted above. 

Moreover, the rules that govern military commissions exclude some of the evidence would have been admissible under earlier sets of rules. Opponents of using 

the traditional criminal justice system claim that involuntary/coerced self-incriminating statements obtained from defendants would be inadmissible in our traditional criminal justice system, but would be admissible in the military commissions. 

However, Congress limited the admissibility of such statements in the MCA 2009 

providing that: ‘‘No statement obtained by the use of torture or by cruel, inhuman, 

or degrading treatment (as defined by section 1003 of the Detainee Treatment Act 

of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible 

in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.’’ 

It is true that exceptions exist: ‘‘A statement of the accused may be admitted in 

evidence in a military commission under this chapter only if the military judge 

finds—‘‘(1) that the totality of the circumstances renders the statement reliable and 

possessing sufficient probative value; and ‘‘(2) that—‘‘(A) the statement was made 

incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best 

be served by admission of the statement into evidence; or ‘‘(B) the statement was 

voluntarily given.’’ Exactly what fits under (2)(A) is unclear. But (2)(B) seems to indicate that a coerced confession that would be inadmissible in federal court is equally inadmissible in commission proceedings. 

4. Civilian trials can turn into a circus and provide a forum for defendants to insult and demean the memory of the victims of 9/11. 

Civilian trials are among the most formal, controlled proceedings that governments experience because they are controlled by federal judges who have power to 

assure that litigants, lawyers and observers behave or are removed from the courtroom if they do not behave. 

It is true that a defendant who takes the witness stand or who makes a statement 

during sentencing has the opportunity to say things that are insulting, demeaning, 

or even threatening. But, this is equally true in civilian trials and in military commissions. More importantly, the defendant does not get the last word. After Zacarias 

Moussaoui spoke to the court at sentencing, Judge Brinkema had the last word and 

informed him that he would have 23 hours a day in solitary confinement to contemplate the crimes he committed. She spoke the last words, and they represented 

the response of a nation. She was not the only federal judge to speak such words. 

Judge Coughenour of the Western District of Washington has noted the power of 

words when federal judges let convicted terrorists know that they are nothing more 

than mere criminals. 

5. There are speedy trial concerns with proceeding in federal court after so much 

delay. 

There are two responses to this concern. Judge Kaplan addressed the speedy trial 

issue in the Ghailani trial: ‘‘Although the delay of this proceeding was long and entirely the product of decisions for which the executive branch of our government is 

responsible, the decisions that caused the delay were not made for the purpose of 

gaining any advantage over Ghailani in the prosecution of this indictment. Two 

years of the delay served compelling interests of national security. None of the five 

year delay of this prosecution subjected Ghailani to a single day of incarceration 

that he would not otherwise have suffered. He would have been detained for that 

entire period as an enemy combatant regardless of the pendency of this indictment. 

None of that delay prejudiced any interests protected by the Speedy Trial Clause 

in any significant degree. In these specific circumstances, Ghailani’s right to a 

37 

speedy trial has not been infringed.’’ The same analysis ought to apply to 9/11 defendants. 

But, if there is a speedy trial problem, there is no assurance that it would not 

be just as much of a problem in a commission proceeding. As I have noted, no one 

is sure what aspects of constitutional law ultimately will be held binding in commission proceedings. If it is unfair to try a defendant in a civilian court because of 

undue delay, it may be equally unfair to try that defendant in a military commission. 

6. Classified information can be better handled in military commissions. 

I disagree with this argument on the basis of substantial personal experience with 

classified information in federal criminal cases. During the Iran-Contra prosecutions 

by Independent Counsel Lawrence Walsh, I handled the classified information 

issues for the Department of Justice in the prosecution of Lt. Col. Oliver North. As 

a result, I became extremely familiar with the Classified Information Procedures 

Act. Dealing with classified information in a federal trial under the Act poses the 

same problems as dealing with classified privileged information in a court-martial 

under Military Rule of Evidence 505. Federal courts are as capable as military commissions of preparing ‘‘substitutes’’ for classified information that protect a defendant’s right to confront the evidence against him and to offer relevant evidence in 

support of a defense. The process contemplated by Mil. Comm. R. Evid. 505 is similar to that which would occur in a federal court. Federal courts have demonstrated 

that they can protect confidential and classified information while moving federal 

criminal trials to a successful conclusion. 

CONCLUSION

For the reasons stated above, I strongly believe that justice is best served by trying those accused of the 9/11 attacks in an Article III court. 

Mr. SENSENBRENNER. Thank you, Professor Saltzburg. 

The Chair will now recognize Members under the 5-minute rule 

to ask questions, alternating by side in the approximate order in 

which they appeared. And the Chair will defer his questions to the 

end and starts out by recognizing the gentleman from California, 

Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. First of all, 

I apologize for leading the applause after Mr. Beamer’s testimony, 

but it was in my experience here one of the finest pieces of testimony that I have heard and apropos of everything that this hearing is about. 

Mr. Saltzburg, you said that the Federal court system, presumably the Article III courts have been able to handle every case that 

has come its way. So you disagree with Judge Mukasey, former Attorney General who presided over the case involving the first attempt to take down the towers, when he said in retrospect it was 

not the right thing to do because it did reveal information that was 

helpful to our enemies. 

Mr. SALTZBURG. I do disagree with him. I think it was the right 

thing to do. I would point out to you that some of the information 

that was revealed as a result of that trial was revealed because the 

prosecutor who prosecuted the case chose not to seek a protective 

order. Had he sought it—and he said to this day in retrospect he 

would have. And the list of co-conspirators, for example, that was 

referred to by Ms. Hessler is a list that was never protected. No 

one sought to—— 

Mr. LUNGREN. So you do disagree with Judge Mukasey who presided over that trial and has been involved in the prosecution of 

terrorist cases. 

38 

Secondly, is there something wrong with someone pleading 

guilty? 

Mr. SALTZBURG. Nothing wrong with someone pleading guilty. 

Mr. LUNGREN. If we had accepted the guilty plea of Khalid 

Sheikh Mohammed, wouldn’t that have brought justice more quickly than we are talking about now, which is one of your major complaints? 

Mr. SALTZBURG. Not if you think the death penalty is an appropriate penalty. 

Mr. LUNGREN. Oh. You can’t plead guilty and then receive the 

death penalty? 

Mr. SALTZBURG. Not in a commission. You can in Federal court. 

Mr. LUNGREN. I see. So one of your problems is you want him 

to get the death penalty and therefore we shouldn’t have accepted 

that? 

Mr. SALTZBURG. I don’t like the death penalty, but in the case 

of these five alleged co-conspirators, the death penalty is on the 

table, and if ever there was a case in which it would be appropriate, this is it. 

Mr. LUNGREN. Well, do you support the current Attorney General’s complaint about the military commissions where his statement suggests that the quality of justice obtained there will not apparently be the same quality as obtained in an Article III court? 

Mr. SALTZBURG. I don’t know that I would phrase it the same 

way. I think he meant to say—I think the intent was to say that 

the procedures that have been tried, true, and tested in an Article 

III court are different, and they haven’t been tried, true, and tested 

and may not withstand scrutiny. 

Mr. LUNGREN. You don’t have any question about the legal authority for military commissions themselves, do you? 

Mr. SALTZBURG. I do not. 

Mr. LUNGREN. So that in fact military commissions, appropriately established, are constitutional just as Article III courts are 

constitutional since both of them receive their power from the Constitution. Correct? 

Mr. SALTZBURG. Appropriately constituted, no doubt that they 

are constitutional. 

Mr. LUNGREN. Mr. Stimson, you have indicated that Article III 

courts are not appropriate under certain circumstances when we 

are dealing with enemy combatants. I use the old term ‘‘unlawful 

enemy combatants.’’ It seems to me that seems to be appropriate, 

but I know we have some new nomenclature. But I think you know 

what I am talking about. 

One of the points you made is that it seems rather strange that 

we would grant greater protections to those who do not follow what 

are understood to be the conventions of warfare than we do those 

who do. Isn’t that sort of a missing argument that we have in this 

debate many, many different times, that part of the reason that 

you establish certain procedures is based on the fact that you assume that people are going to follow the known civil or at least the 

conventions of warfare? 

Mr. STIMSON. They are, sir. 

39 

Mr. LUNGREN. Isn’t that a perverse incentive that we are establishing if we somehow say they should get Article III courts as a 

matter of course? 

Mr. STIMSON. It is important as a matter of policy to be consistent and send the message that the Geneva Conventions were 

put in place for in the first place, and that is follow the rules, carry 

your arms openly, be a privileged belligerent, and get accorded the 

status, the legal status, of prisoner of war, which means you can’t 

be tried. You have combatant immunity. But if you fall outside of 

those rules, then you lose immunity and you can be tried for war 

crimes. My point is simply that by giving them a trial in an Article 

III court, we are upending the very purpose of the Geneva Conventions in the first place. 

And if I could, Mr. Chairman, address the death penalty question 

at least now or at some other point—— 

Mr. SENSENBRENNER. Maybe some other point. 

Mr. STIMSON. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Professor Saltzburg, can you relate the appellate process if you 

wanted to appeal a conviction in criminal court or appeal a conviction in the military commission, what process they would go 

through? 

Mr. SALTZBURG. Sure. A person tried in an Article III district 

court, if convicted, would have a right of appeal to one of the courts 

of appeal throughout the country, the 11 numbered courts and the 

D.C. Circuit, and then a right to petition for review in the United 

States Supreme Court. 

A person tried in a commission would first get review by the convening authority. Second, there is a special tribunal that is set up 

to—an ad hoc tribunal that is set up to review convictions. After 

that, there is review in the United States Court of Appeals for the 

District of Columbia. And if a conviction were to be upheld after 

that, there is potential review in the United States Supreme Court. 

Mr. SCOTT. Which seems quicker? 

Mr. SALTZBURG. Well, I think there is no doubt that a Federal 

district court trial with one appeal as a right is less cumbersome 

than the appellate rights provided in the military commission process. 

Mr. SCOTT. And what about predictability? 

Mr. SALTZBURG. Well, you have heard me on this. We know what 

to expect from Article III courts. We don’t know how Article III 

courts will respond to military commission procedures. 

Mr. SCOTT. Is there a limit on the charges that can be brought 

in a military commission as opposed to charges that can be brought 

in Federal court? 

Mr. SALTZBURG. Yes. Commissions are there to try war crimes, 

and Article III courts can hear virtually any criminal charge that 

falls under Federal law. 

Mr. SCOTT. And if you have a terrorist attack, is it necessarily 

a war crime that may not be found to be a war crime subject to 

a military commission? 

40 

Mr. SALTZBURG. Whether or not every attack—‘‘attack’’ is the 

wrong word. Whether every crime committed by someone who is 

not an American against Americans is a terrorist act I think the 

answer is no. I mean, we have heard the rhetoric here is that we 

are at war with al Qaeda, we are at war with KSM. I think the 

truth of the matter is that the greatest victory KSM will have is 

to be treated as a warrior. The last thing that he and his co-conspirators want is to be treated as a common criminal. 

Mr. SCOTT. Is the question of whether it is a war crime or a regular crime an appealable issue? 

Mr. SALTZBURG. It will be. I think this tribunal knows that four 

Justices on the Supreme Court have cast doubt on whether conspiracy is a crime that can be prosecuted in a military commission. 

Mr. SCOTT. In terms of those who will be conducting the crime, 

can you say a word about the experience that those who will be 

conducting a military commission have in conducting these trials, 

particularly as it relates to admissibility of evidence and handling 

classified material? 

Mr. SALTZBURG. Let me say that I think that the military lawyers who have been assigned to be prosecutors—I have worked 

with some of them. I think they are excellent lawyers, as are the 

defense lawyers. They are doing their best. 

I think Mr. Stimson is correct when he says they don’t have the 

same experience as lawyers in the Department of Justice, particularly when it comes to handling sensitive information and using 

statutes like the Classified Information Procedures Act. There will 

be a learning curve and it would be improved, I would say, if DOD 

lawyers were detailed to work with them. 

Mr. SCOTT. In terms of classified materials, can the same mistakes be made in a military commission, letting too much evidence 

out in the public that there have been complaints about in Federal 

court? 

Mr. SALTZBURG. Absolutely. The basic procedures under the Classified Information Procedures Act in civilian court, under Military 

Rule of Evidence 505 in a court martial, and Military Commission 

Rule 505 in commissions—the rules are basically the same. The 

judge is supposed to take classified information and try to fashion 

substitutes for nonclassified information. Can there be a mistake? 

Absolutely. 

Mr. SCOTT. A lot has been said about the possibility of retaliation 

if you have a Federal court. What is the importance of fairness and 

the indicia of fairness that would occur in a Federal court that may 

increase or decrease the possibility of retaliation of those involved 

in the trial? 

Mr. SALTZBURG. The concern about a trial in New York was that 

al Qaeda sympathizers might retaliate because there was a trial. 

And the truth of the matter is anybody who sympathizes with KSM 

and the other defendants can retaliate anywhere they want against 

the United States, anywhere they would try to. There is no rule 

that says you only can retaliate against the city that is trying your 

case. 

Mr. SCOTT. Mr. Chairman, before you drop the gavel, I just want 

to point out that complaints have been made about Ahmed 

41 

Ghailani who was tried in Federal court. He was given a life sentence at the end of the trial without the possibility of parole. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from South Carolina, Mr. Gowdy? 

Mr. GOWDY. Thank you, Mr. Chairman. 

Professor Saltzburg, when Osama bin Laden is captured, do you 

advocate his trial in civilian court or a military commission? 

Mr. SALTZBURG. In a civilian court where he has already been indicted. 

Mr. GOWDY. You advocate that Osama bin Laden be given a Federal public defender with discovery rights and tried in civilian 

court. 

Mr. SALTZBURG. Yes, I do. 

Mr. GOWDY. I don’t understand, Professor, your argument about 

this likelihood of conviction, that because military tribunals are 

more likely to convict than U.S. district courts, that we should not 

pick military tribunals because you will agree with me that the 

chances of a conviction are higher in Federal court than in State 

court. Right? 

Mr. SALTZBURG. No, I don’t agree with that. 

Mr. GOWDY. Of course, they are. There is more than a 90 percent 

conviction rate in U.S. district court. More than 90 percent. 

Mr. SALTZBURG. The guilty plea rate is 96—— 

Mr. GOWDY. I am talking about the conviction rate at trial. You 

disagree that you are more likely to be convicted at trial in U.S. 

district court than in State court. 

Mr. SALTZBURG. I think the conviction rates are pretty comparable. It depends on what State, but are pretty comparable, Federal and State. 

Mr. GOWDY. Virginia. 

Mr. SALTZBURG. The Virginia conviction rate is as high in State 

court as it in Federal court. 

Mr. GOWDY. Professor, given his confession which, as I have read 

it, it speaks to every element of the offense, what defense would 

you advocate on behalf of KSM and how would his defenses be adversely impacted by a military trial as opposed to a civilian trial? 

Mr. SALTZBURG. I expect KSM to plead guilty. I expect that if he 

were tried in the Federal court, he would plead guilty because he 

has tried to plead guilty, and he has tried to plead guilty in a 

forum that permits the death penalty to be—— 

Mr. GOWDY. So he won’t lose any significant rights if he is tried 

by a military tribunal and not tried in civilian court. 

Mr. SALTZBURG. Well, the one thing that would be different is in 

an Article III court, we would have the Federal judge using the 

same care to make sure that that guilty plea was not influenced 

in any way by improper conduct—— 

Mr. GOWDY. That is a 15-minute colloquy between the defendant 

and the judge. Right? That can be done in military court. Right? 

Mr. SALTZBURG. The colloquy will probably be slightly longer 

given the detention and the circumstances of the detention to assure that this is a knowing, voluntary, and intelligent plea. 

Mr. GOWDY. Military tribunals—you don’t get 12 jurors. Right? 

Like you do in civilian court. 

42 

Mr. SALTZBURG. Military tribunal—you have a right, if the death 

penalty is being sought, to 12 jurors unless 12—— 

Mr. GOWDY. Well, let’s speak about the death penalty because 

you said in your testimony that one of the benefits of a civilian jury 

is that it is inclusive, period. But it is not inclusive because if you 

don’t believe in the death penalty, you can’t serve on a Federal 

death penalty jury. Correct? 

Mr. SALTZBURG. If you are absolutely opposed to the death—— 

Mr. GOWDY. Not absolutely. If you just can’t give it. If you cannot 

give the death penalty, you can’t serve. Right? 

Mr. SALTZBURG. If you absolutely can’t give it. If you have reservations, you can serve. 

Mr. GOWDY. Well, reservations that substantially impair your 

ability to give it. 

Mr. SALTZBURG. Fair enough. 

Mr. GOWDY. I mean, that is the Wainwright language. Right? 

Mr. SALTZBURG. Right. 

Mr. GOWDY. So there is no constitutional requirement of 12 jurors. Right? 

Mr. SALTZBURG. Excuse me? 

Mr. GOWDY. There is no constitutional requirement of 12 jurors. 

Mr. SALTZBURG. No. The Supreme Court has held that a minimum of 6 is required. 

Mr. GOWDY. There is no constitutional right of unanimity in jurors, is there? 

Mr. SALTZBURG. Yes, actually there is in Federal court. 

Mr. GOWDY. Where? 

Mr. SALTZBURG. The Supreme Court, Johnson v. Apodaca. 

Mr. GOWDY. I said constitutional. I didn’t say Supreme Court. I 

said in the Constitution does it say that we require unanimity of 

jurors? 

Mr. SALTZBURG. The Constitution doesn’t say anything about 

unanimity. It doesn’t say anything about numbers of jurors either. 

Mr. GOWDY. Right. It doesn’t have to be 12. It doesn’t have to be 

unanimous. 

Mr. SALTZBURG. If you are asking me what it says in the Constitution—— 

Mr. GOWDY. That is what I am asking. 

Mr. SALTZBURG. The Constitution, as I think I just said, says 

nothing about unanimity or the number of jurors. 

Mr. GOWDY. Are there better remedies in U.S. district court than 

in military tribunals for technical Miranda violations? 

Mr. SALTZBURG. Are there better remedies in Federal district 

court? 

Mr. GOWDY. Right. I mean, you have the exclusionary rule in 

U.S. district court. Right? 

Mr. SALTZBURG. Yes, you do. 

Mr. GOWDY. Which means it doesn’t come in. 

Mr. SALTZBURG. Correct. 

Mr. GOWDY. Is that also true in military tribunals? 

Mr. SALTZBURG. No. Miranda will not have the same applicability 

in military tribunals. 

Mr. GOWDY. All right. 

43 

You also testified—or your writing—our citizens and those of 

other nations are more likely to be convinced by trials in Federal 

courts. Our citizens and those of other nations. 

How many terrorists have been tried in civilian court in the 

United States? 

Mr. SALTZBURG. More than 400. 

Mr. GOWDY. And you think those other nations are convinced? 

Are you satisfied that the other nations are now overwhelmed with 

our sense of fairness and they respect us at such a high degree that 

nothing bad is going to happen to us if we try these people in military tribunals? 

Mr. SALTZBURG. What I am convinced about is that the United 

States’ system of justice is generally regarded as one of the fairest 

in the world, and that is largely because of the image of Federal 

courts. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Sensenbrenner. 

Mr. Saltzburg, Professor Saltzburg, is it true that the military 

commission established under the Bush administration was flawed 

and needed improvement with the 2009 Military Commissions Act? 

Mr. SALTZBURG. I believe so. 

Mr. CONYERS. Do you happen to recall in what respects it was 

deficient? 

Mr. SALTZBURG. Well, the Military Commissions Act of 2009 

tightened the rules of evidence, made it clearer as to whether statements that were obtained through inhumane, cruel treatment could 

be admitted, under what circumstances a statement that was obtained shortly after somebody was detained on the battlefield could 

be admitted, and made clear that voluntary confessions could be 

admitted. 

Mr. CONYERS. And you have already mentioned the fact we don’t 

know what the Federal courts are going to do with military commissions even after they are used and the appeals that will come 

forward afterwards. 

Mr. SALTZBURG. That’s true. Under the Military Commissions 

Act of 2009, we have a combination. We have military commissions 

which will—initially convictions will be reviewed by this special tribunal, and then the conviction, if affirmed, will end up being reviewed by the District of Columbia Court of Appeals and maybe by 

the Supreme Court. And they will have the opportunity to consider 

constitutional challenges to any of the procedures that were used 

in the commissions. 

Mr. CONYERS. Attorney Stimson, are you in agreement with that? 

Mr. STIMSON. There is no doubt, Mr. Conyers, that there will be 

challenges to any convictions that occur under the military commissions. That is correct. 

Mr. CONYERS. And do you too feel that the Military Commissions 

Act of 2009 corrected certain flaws that were in existence before 

then? 

Mr. STIMSON. I think the reforms were helpful and necessary, sir. 

Mr. CONYERS. You are probably aware of the fact that under the 

Bush administration, there were six cases completed by way of plea 

44 

bargains. I am sorry. Six cases and three were completed by plea 

bargains. Military commissions. 

Mr. STIMSON. There have been six, Mr. Conyers. Two of the pleas 

actually occurred during the Obama administration. Mr. Cotter, 

who was a Canadian, and Al Qosi—actually I think three because 

Noor Uthman just pled too. That is correct. But the only actual 

trial, Mr. Conyers, was Salim Hamdan who was Osama bin 

Laden’s driver and arms trafficker, and that was an actual trial in 

front of members to conclusion. 

Mr. CONYERS. And he has been released. 

Mr. STIMSON. Yes. He was repatriated back to his home country, 

sir. 

Mr. CONYERS. Well, in view of that skimpy record of military 

commission activities, why do you think that there is such a great 

support for military commissions? 

Mr. STIMSON. I think two reasons, sir. One, Mr. Conyers, is that 

in wartime, war criminals have traditionally and always should 

have war crimes tribunals. 

Secondly, the goal should not be swiftness. Justice isn’t swift. It 

should be fairness. And military officers who serve as members and 

the convening authority who is a uniformed military officer, actually retired JAG, understand better than civilians the context of 

war and what fairness is. And so if we judge the outcome based 

on the length of sentence, I think we are looking at it the wrong 

way. It is whether it is fair, and uniformed officers will render fair 

decisions. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Texas, Mr. Poe? 

Mr. POE. Thank you, Mr. Chairman. 

I have a question for each of you. It is the same question. Is the 

United States at war? Mr. Saltzburg, is the United States at war? 

Mr. SALTZBURG. We are certainly at war in Afghanistan. We are 

certainly at war in Iraq. And we certainly have military forces 

being deployed in Libya. 

Mr. POE. Ms. Hessler? 

Mr. SALTZBURG. But if you are—— 

Mr. POE. Excuse me. I reclaim my time. 

Ms. Hessler? 

Ms. HESSLER. Yes, we are at war. 

Mr. POE. Mr. Stimson? 

Mr. STIMSON. Yes, Mr. Poe. 

Mr. POE. And Mr. Beamer? 

Mr. BEAMER. Yes. 

Mr. POE. Since the Military Commissions Act of 2009, I have a 

concern that if—traditionally the Supreme Court says that if we 

give constitutional rights to a group, then we give it to the entire 

group, not just selected portions of that group. Therefore, if we try 

some jihadist terrorists under the Commissions Act in Federal 

court and try others in military tribunals under the commission, is 

there a constitutional due process problem with trying some over 

here and some over here? Mr. Stimson? 

Mr. STIMSON. I am not sure the answer is yes. I think that is 

where you would like me to go. 

Mr. POE. No. I just wonder what you think. 

45 

Mr. STIMSON. I am not sure the answer is yes. In fact, I think 

the answer is probably no. The executive has the ultimate decision 

in terms of the forum selection, and I don’t think it would present 

an equal protection claim. 

Mr. POE. Ms. Hessler, what do you think? 

Ms. HESSLER. I am not sure if it would present an equal protection claim, but I would say that it is certainly counterproductive in 

that it looks a lot like forum shopping and we shouldn’t really be 

dividing the detainees into two separate groups and, depending on 

what evidence we have, choosing a forum. That certainly looks 

quite unprincipled and against American principles. 

Mr. POE. So you would say let’s pick a horse and ride it and try 

them all in one place or the other. 

Ms. HESSLER. I would say that since military commissions are 

fair—the President has said they are fair—this body enacted it by 

a bipartisan majority—I would say all enemy combatants should be 

tried there alike and they should all be treated equally. 

Mr. POE. Mr. Beamer, I want to follow up on some comments 

that you made. We have talked a lot today about the accused defendants, terrorists. I think the same system that has been created 

to try terrorists should also protect the rights of victims of crime, 

such as your son and the others that were murdered on 9/11. Do 

you think that, just from your position, the importance of looking 

out and protecting the rights of victims, while we are certainly protecting the rights of these accused, would be better suited in a military tribunal or before a Federal court? 

Mr. BEAMER. There is a long history of us using military commissions that we have heard. 

The arguments about classified information, information gathering—the first time I heard the Attorney General discuss his position as the right way forward to have the trials in New York was 

I attended the Senate Judiciary Committee hearing back in November of 2009. And just the idea of enemy combatants being given 

rights, Miranda rights, lawyer up on the battlefield, not being able 

to collect intelligence—that is wrongheaded, completely wrongheaded. 

And so many times during that testimony on that day, I heard 

the Attorney General answer to some difficult questions ‘‘I don’t 

know.’’ That gave me no feeling of confidence that he knew about 

the proper way forward. 

I am very concerned about victims rights. I am certainly concerned that the enemy combatants receive a fair trial, but I am not 

at all interested in conferring upon these people the rights of the 

American citizenry. Not at all. 

Mr. POE. And one last question. Mr. Stimson, you talked about 

fairness. You know ‘‘fair’’ means different things to different people. 

Some people say fair is where you take your chickens or something, 

like that. But I want to ask you does our sense of fairness in the 

justice system also include the right to a speedy resolution. If we 

wait 10 years in any criminal case, whether it is in a military court 

or a Federal court, doesn’t that seem to be unfair to all concerned? 

Mr. STIMSON. It absolutely does, Mr. Poe, and not only does the 

defendant have a speedy trial right, but the victims—the victims 

46 

rights movement is sort of late in coming—deserve justice, and that 

means moving things along. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Puerto Rico, Mr. Pierluisi? 

Mr. PIERLUISI. Thank you, Mr. Chairman. 

I thank all the witnesses for appearing today, and I have to say 

that I am particularly pleased to see Professor Saltzburg. I am a 

graduate of George Washington University Law School. So welcome. 

I am troubled and I hear some inconsistent messages here. 

First thing, I have to relate to what you have been going 

through, Mr. Beamer. These are the most horrendous and atrocious 

crimes we could be talking about, and for you to be still waiting 

for justice, as you said, that really moves me. I know it hurts. You 

feel frustrated and probably angered by it, and I relate to it. 

Having said this, it is kind of inconsistent I say because then I 

hear Professor Saltzburg say that the problem he sees with this 

military commission is that it is going to take forever. It is going 

to take a lot longer than dealing in Federal courts. And that is 

troubling. It makes no sense. 

Now, I don’t want to leave this in generalities. So the first thing 

I am going to ask Professor Saltzburg is what troubles you the 

most in terms of the procedures that these military commissions 

will be following. And I am looking at the District of Columbia Circuit Court of Appeals eventually reviewing these procedures, as you 

kind of said. So what troubles you the most when you compare Article III courts’ procedures with these military commissions procedures? 

Mr. SALTZBURG. I think there are two things, and I actually 

think that Mr. Stimson may have mentioned them accurately. The 

unknowns here are whether or not a Federal court will say there 

is the same kind of right of confrontation in a military commission, 

at least one that is in Guantanamo, as there is in an Article III 

court. It is very clear that evidence that would never be admissible 

in an Article III court because it is testimonial hearsay and hasn’t 

been cross examined would be admissible in a military commission, 

provided a judge makes certain findings about reliability, and 

whether that will be upheld is something that we don’t know. 

The other question—I think it is related—is whether or not the 

looser standard for the admissibility of confessions, whether or not 

that will be deemed valid. 

I think those are two of the main differences. 

There are other similarities that I think—I want to be clear. The 

Military Commissions Act of 2009, in my judgment, really did improve the commission process. There is no doubt about it, and I 

don’t mean to say that I know the answer to the question of what 

a Federal court will do. I just know there are big questions there. 

Mr. PIERLUISI. Another thing that troubles me is when you all 

pretty much say that we are at war, and some of you I seem to understand or read you as saying there is a war against terrorism 

going on. And I suspect, I would assume, it is not going to end anytime soon. Now, who is going to be tried in these military commissions? Anybody alleged to be a terrorist? Is that what we are talkVerDate Aug 31 2005 14:09 Jun 23, 2011 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040511\65601.000 HJUD1 PsN: 65601
47 

ing about, that anybody who is alleged—and I am addressing Mr. 

Stimson now. I want to hear from you on this. Are you saying then 

that we have like two separate sets of systems of justice here? One 

for pretty much everybody and then one for anybody who is suspected to be a terrorist. Is that what we are doing here? 

Mr. STIMSON. Sir, as a legal matter, this Congress has defined, 

through the Military Commissions Act of 2009, those who are eligible for military commissions. It is a small subset of terrorists at 

large. They tend to almost all be in Guantanamo. At least that is 

the way this Administration and the previous have looked at it. 

And as Professor Saltzburg alluded, the reforms in 2009 that this 

Congress passed give the military judge the solemn duty to determine as a matter of law whether the person is an unprivileged 

enemy belligerent. And so it is several steps in the process. But, 

no, it is not a broad set of people. 

Mr. PIERLUISI. Thank you. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentlewoman from Florida, Ms. Adams? 

Ms. ADAMS. Thank you, Mr. Chairman. 

Mr. Saltzburg, in your testimony you stated there is a place for 

military commissions in the prosecution of terrorists. They are 

most defensible when employed to prosecute individuals who attack 

American military targets abroad where witnesses and evidence 

may be uniquely available, but they are not the forum for trying 

the most serious charges of intentional murder committed on 

American soil that may ever be brought. The forum is a Federal 

court in your decision. In your statement, you say it is a Federal 

district court. 

But using this, doesn’t this mean that a terrorist can select his 

eventual prosecution venue should he or she be caught by choice 

of the target and where that target is attacked? 

Mr. SALTZBURG. I believe that the choice is always made by our 

executive. 

Ms. ADAMS. But given your words, you said ‘‘abroad.’’ Did you 

not? 

Mr. SALTZBURG. Yes. 

Ms. ADAMS. Okay. So that would mean if they attacked here, 

such as what happened on 9/11, that that would be different in 

your eyes. Yes or no? I have got a short time and I want to get 

through my questions. 

Mr. SALTZBURG. I believe yes, that there is a difference. 

Ms. ADAMS. And you believe that Article III courts provide greater protections for the accused? 

Mr. SALTZBURG. I do. 

Ms. ADAMS. Does this not reward terrorists for striking civilians 

in our homeland under your first premise? 

Mr. SALTZBURG. I don’t believe that giving people fair trials is a 

reward to anybody. 

Ms. ADAMS. But they could select their venue by their target selection. Correct? By your own words. 

Mr. SALTZBURG. Yes. If I were given the choice in making a recommendation to the Attorney General, I would choose commissions 

sometimes and Article III courts on other occasions. 

48 

Ms. ADAMS. And you said something about the death penalty and 

if you were to do it in the Article III courts, it would be faster and 

less drawn out. Can you tell me what the average time someone 

is on death row, whether it is State, Federal courts awaiting their 

appeal process? What is the average time that they sit there waiting throughout all their appeals? 

Mr. SALTZBURG. The average time in State court is many, many 

years. 

Ms. ADAMS. Federal court? 

Mr. SALTZBURG. Well, it depends on the cases. The Timothy 

McVeigh case, for example, was a situation in which he was tried 

in Federal court for mass murder. He was convicted in a Federal 

court and he was executed in a relatively short period of time. 

Ms. ADAMS. Why was he executed? Didn’t he waive some of his 

appeal processes? 

Mr. SALTZBURG. He did. 

Ms. ADAMS. So it was his decision to waive those processes, but 

if he had not, he probably still would be with us today, wouldn’t 

he? 

Mr. SALTZBURG. Well, I can’t answer that. I don’t know. 

Ms. ADAMS. Now, you mentioned the tribunal process, the military commission, and then you mentioned the Libyan terrorists. 

And I am curious because when we did our check, it looked like 

Britain and the U.S.—Britain got this Libyan terrorist, and then 

he was tried in a Scottish military courtroom and the Netherlands. 

And you are equating that to what is going on in our military commissions. Correct? 

Mr. SALTZBURG. I didn’t equate it. 

Ms. ADAMS. Well, you said that the length of the appeal and it 

is still ongoing today. Didn’t you say it was the length of the appeal 

and it was still going on today and had something to do with the 

commission? 

Mr. SALTZBURG. The appellate process has not ended in that case 

yet. 

Ms. ADAMS. Correct. And so, therefore, it equates because it was 

a military commission even though it wasn’t within our court system or a military commission. 

Mr. SALTZBURG. The point I was making was simple. It was 

when you adopt new procedures that you haven’t used and they are 

not tested—— 

Ms. ADAMS. But that was in another country, was it not? 

Mr. SALTZBURG. Involving several other countries. 

Ms. ADAMS. There you go. That is what I wanted to know. 

Mr. Stimson, have you seen the court facility in Guantanamo 

Bay? 

Mr. STIMSON. I have not only seen it, Ms. Adams, I headed the 

working group that put it together. 

Ms. ADAMS. I just came back from there and it is a very uniquely 

designed, well designed in my eyes, courtroom, and I think it is one 

that will serve our country well and give the defendants, the detainees, a very fair trial. 

I have a short period of time. I am going to stop my questions. 

I may submit some more. 

49 

But, Mr. Beamer, I for one am sorry for your loss, and I for one 

want to see you and the other families and other victims’ families 

have the ability to have some sort of closure. It will never be closure. I understand that having lost someone myself. But you do deserve that type of closure, and we as the American people need to 

make sure they are brought to trial. 

Thank you. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. 

The gentleman from Illinois, Mr. Quigley. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Again, Mr. Beamer, my regards as well. I don’t think anyone can 

argue that the delay is inexcusable. This is over, obviously, several 

Administrations. 

But let me say this to the whole panel as someone who has done 

200 trials as well. I do think at least someone needs to talk about 

Miranda in terms of its effectiveness in getting information. I can’t 

necessarily put my finger on it, but Mr. Saltzburg, perhaps you 

could start by helping me here. 

If someone who is charged with something is mirandized, I think 

there is a lot of evidence that this moves them toward a more cooperative entity, a person, to work with. The Christmas Day bomber—and I will pronounce many of these names wrong—Allah Hussein Kirkto, John Walker Lindh, Mohammed Junaid Babar, David 

Headley, Eddis—I am not going to pronounce his name right. The 

alleged associate taken into custody in—he waived his Miranda 

rights and provided detailed information to the FBI about terroristrelated activities about himself and others in the U.S. and Pakistan. There are literally dozens here who were mirandized and 

were later extraordinarily cooperative. The justice system is an extraordinary source of information, and I would like to think that 

some of this has to do with people feeling that they are going to 

be treated at least with some quantum measure of fairness and 

their ability to cooperate and provide information to—it seems to 

be theme here—prevent future acts. 

So I would like, Mr. Saltzburg, if you could respond, and then go 

back to the panel. 

Mr. SALTZBURG. Let me be very quick so others can respond. 

Three points in response. 

Number one, no one believes that when a soldier captures someone on the battlefield, they should mirandize them. 

Mr. QUIGLEY. Right. 

Mr. SALTZBURG. There is no rule like that. 

Number two, the FBI in October of 2010 adopted a policy which 

is when you arrest someone and there is a national security issue 

on the table, that you may delay Miranda warnings in order to protect national security and then worry about the evidence you might 

need in a criminal case. 

And number three, the FBI is really good at using Miranda as 

a tool to get people to cooperate, to get confessions. All you got to 

do is look at some of the nonclassified information that has been 

released about people who the FBI has persuaded to cooperate and 

provide enormous amounts of information. They are very good at 

it. 

50 

Mr. QUIGLEY. And, Ms. Hessler, I understand your point about 

intuitively it sort of seems that if you tell somebody they have a 

right to remain silent, but it does seem to be with good prosecutors 

at the local level, Federal level, and levels dealing with terrorists— 

it seems to have been a pretty darned effective tool to get people 

to cooperate to help prevent—to seek out other terrorists and to 

help prevent other future acts. 

Ms. HESSLER. Well, I believe that there are a certain percent 

that do waive their rights. I believe it is 30 percent who choose to 

exercise their rights. So it is certainly taking a risk. 

Mr. QUIGLEY. But also others who were mirandized have cooperated and given us valuable information. 

Ms. HESSLER. And I would just say to give the example of the 

Christmas Day bomber, he was interrogated for 50 minutes and 

was quite forthcoming and, in fact, admitted that he was an al 

Qaeda terrorist and even discussed other plots. And then he was 

given his Miranda warnings and decided to exercise them. 

Mr. QUIGLEY. Mr. Stimson? 

Mr. STIMSON. Thank you for your question, Mr. Quigley. 

As you know, Miranda is now constitutionally based, and so 

there is a more fundamental starting point and that is should we 

confer unprivileged enemy belligerents with constitutional rights or 

not. In a Miranda setting, as you know, the person has the right 

to simply stop talking, and I think the broader point here is that 

they can stop talking. 

Mr. QUIGLEY. But let’s just put the issues that anyone thinks 

what is fair, whether Miranda is constitutionally—doesn’t it seem 

to be an effective tool? In the end, what you really want—forget 

that person—is you want other information. Ms. Hessler talked 

about preventing future acts. It seems to be a pretty effective tool 

that prosecutors use to get more information. It helps get that person to talk to you. 

Mr. STIMSON. It is a tool that is required when moving toward 

Federal or State prosecution. 

Mr. QUIGLEY. But don’t you agree that in many cases it has 

helped us get information that helps us in the war against terrorism? 

Mr. STIMSON. No. I think the—— 

Mr. QUIGLEY. Never. No examples. 

Mr. STIMSON. The waiver of Miranda and the subsequent discussion has been helpful. It is the information itself, not the Miranda. 

Mr. QUIGLEY. Despite the fact—— 

Mr. SENSENBRENNER. The gentleman’s timehas expired. 

The gentleman from Texas, Mr. Gohmert, is recognized for 5 

minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And thank you to the witnesses for being here and giving us your 

insights. 

And, Mr. Beamer, you should know that your son is an inspiration to so many of us and particularly me every day because of the 

courage he showed and his willingness to protect American lives. 

Mr. BEAMER. Thank you. 

51 

Mr. GOHMERT. And it inspires me sometimes in dealing with my 

own party. But I appreciate so much what you have contributed to 

the world through your son Todd. So thank you for that. 

To kind of accentuate some of the things that some of the witnesses have said, here is a blow-up from the New York Times, ‘‘5 

Charged in the 9/11 Attacks.’’ They seek to plead guilty from Guantanamo Bay, Cuba. And I have been down there in that courtroom. 

It was well designed. Thank you very much, Mr. Stimson and those 

that worked with you. But they indicated they wanted to plead 

guilty. And if you read the 6-page pleading the Khalid Sheikh Mohammed did himself that has been declassified so we could read it, 

you see pretty well exactly what he thought. 

And in that same article in the New York Times, they point out 

that—routine proceedings Monday Judge Henley said he received 

a written statement from the five men dated November 4 saying 

they plan to stop filing legal motions and to announce our confessions to plea in full. The thing is that was in 2008, and so for about 

21⁄2 years, we have delayed justice as a result of the President and 

Attorney General promising show trials. They backed off of that. 

And, Mr. Saltzburg, it is true that most places you can’t get the 

death penalty if you decide to plea guilty and the court accepts the 

plea. And the prosecution can have something to say about whether 

that plea is accepted or not. And even if a plea of guilty is not accepted and a plea of not guilty is entered on behalf of the defendant or respondent or detainee, you can still enter into evidence the 

confession of someone there. 

And we have the transcript, and I would like to offer a copy for 

the record, Mr. Chairman. 

Mr. SENSENBRENNER. Without objection. 

[The information referred to follows:] 

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Mr. GOHMERT. And this is ISN 10024 where Khalid Sheikh Mohammed is questioned by the president of the court, and he goes 

through his warnings to make sure that he is voluntarily entering 

the statement and he has a personal representative read it. And 

I would commend it to anyone who is not familiar with the process. 

But this is like what we do in a military UCMJ court. Of course, 

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bunals inferior to the Supreme Court. They also have the power to 

discipline the military. 

And so the mistake of the Bush administration was trying to do 

a military commission or tribunal without Congress. The court set 

him straight and we got a good bill. 

And I do agree, perhaps tongue in cheek, that it was a great improvement in 2009 because that is when we changed the words 

‘‘enemy combatant’’ and substituted therefore the words 

‘‘unprivileged alien enemy belligerent.’’ I am still concerned about 

using a harsh term. ‘‘Enemy’’ is still in there. 

But nonetheless, some of the things Khalid Sheikh Mohammed 

made very clear that he agreed to was he said I admit and affirm 

without duress I was a responsible participant, principal planner, 

trainer, financier via the military council treasury. I was responsible for the 1993 World Trade Center operation, responsible for 

the 9/11 operation from A to Z. I decapitated with my blessed right 

hand the head of American Jew Daniel Pearl. I was responsible for 

the shoe bomber operation to down two American planes. It went 

on about trying to bring down the library tower, Sears Tower, 

Plaza Bank, Empire State Building, all the things he goes on to 

admit freely. 

But what gets me is, having served in the military, in the U.S. 

Army, for 4 years, to hear people come in and say that there are 

people who are out there to destroy us, they have declared war on 

us, and they deserve better, some kind of more lavish proceedings 

than our own military is offensive to me as someone who served 

in the military. And I don’t think that anybody who has declared 

war on us deserves a more lavish show trial than our military. 

And I see my time has expired. 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Saltzburg, it is a fact, isn’t it, that the accused in a military 

commission can choose to plead guilty. The guilty plea must be accepted, and in so doing, the accused avoids a death penalty. 

Mr. SALTZBURG. There is a glitch and uncertainty in the statute. 

The statute seems to permit a joint statement, a stipulation between the defense and the prosecution that says the defendant did 

whatever he is charged with, but it is unclear whether or not a defendant whose guilty plea is accepted actually can be sentenced to 

death under the statute. 

Mr. JOHNSON. And it is also true that this case against the 9/11 

plotters will rely heavily on charges of conspiracy and material 

support, and those are not traditionally recognized war crimes. Is 

that true? 

Mr. SALTZBURG. It is true, and the answer, when I was asked 

what issues might end up coming before an Article III court, they 

are whether or not those crimes can be tried in a commission, and 

secondly, with respect to material support, whether there is an ex 

post facto problem. 

Mr. JOHNSON. Well, that is exactly what I was getting to, sir. 

And so what we have is a situation where KSM was captured back 

in 2003. It hasn’t been 10 years. It has been 6. Captured back in 

2003. 

79 

And Mr. Stimson, I believe you did a blog last night. You were 

active on the blog sponsored by The Heritage Foundation, and you 

stated, quote, the Administration deserves credit for making this 

decision however late in coming. Correct? 

Mr. STIMSON. Yes, sir, I did write that. 

Mr. JOHNSON. And you will recall that when KSM was arrested 

back in 2003, that he was transferred to a secret location in Eastern Europe and then to Guantanamo where he landed in around 

2006. Is that true? So from 2003 to 2006, he was in a secret location. Correct? Under U.S. custody. 

Mr. STIMSON. He was—— 

Mr. JOHNSON. Yes or no? 

Mr. STIMSON. I don’t know where he was, sir. 

Mr. JOHNSON. So you don’t know where he was during that time. 

Mr. STIMSON. No. I know he was at Guantanamo in September 

2006. 

Mr. JOHNSON. Now, you do know that KSM was waterboarded 

183 times. 

Mr. STIMSON. I have read that in the newspapers, sir. 

Mr. JOHNSON. Now, you also agree that the military commission 

system was deeply flawed, the one that was produced by the Bush 

administration, as the Supreme Court pointed out. Correct? Deeply 

flawed. 

Mr. STIMSON. I don’t think I have ever used those words. The Supreme Court found that—— 

Mr. JOHNSON. Okay. well, let’s go with ‘‘flawed’’ then. It was 

flawed. It had to be thrown out and redone. Is that correct? 

Mr. STIMSON. That is what the Supreme Court said. 

Mr. JOHNSON. So now we are going to take a man who has been 

waterboarded 183 times, charged with some offenses that have not 

been recognized as battlefield-type charges, and we are going to use 

a military commission for the first time to try this high-value detainee. And you don’t think there is much risk involved? 

Mr. STIMSON. There is no such thing as a risk-free prosecution—— 

Mr. JOHNSON. Okay. Well, do you think it is better for the Federal prosecutors, the Justice Department to make that decision 

than it would be for a group of politicians, many of whom have no 

criminal law experience whatsoever to make the decision? 

Mr. STIMSON. Professional prosecutors, including Justice Department lawyers, will make the ultimate decision on the charges to be 

brought against KSM, including—— 

Mr. JOHNSON. But you think that it is okay for this group to decide that we want to try this man in—— 

Mr. SENSENBRENNER. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Stimson, speaking of professional politicians making decisions, in November of 2009, in an interview with NBC News, President Obama told a TV audience that critics of the decision to try 

KSM in civilian court will not find it, quote, offensive at all when 

he is convicted and when the death penalty is applied to him. As 

a former Federal prosecutor and as a military judge, do you see 

any ramifications for the trial of KSM in both military and civilian 

80 

court caused by the President of the United States predicting the 

outcome of the case? 

Mr. STIMSON. Of course, I am speaking in my personal capacity, 

Mr. Goodlatte. But those words are unfortunate and could have 

legal ramifications in either military commissions or Federal court. 

Mr. GOODLATTE. And would this compromise our ability in any 

way of obtaining the death penalty? 

Mr. STIMSON. Anything is possible. I am certain that people involved in the voir dire process of prospective jurors will make inquiry into that. 

Mr. GOODLATTE. And is this a problem that would be difficult for 

a professor of constitutional law, as President Obama once was, to 

have anticipated? 

Mr. STIMSON. Well, again, we all say things we regret, and I am 

sure the President would like to take that comment back. 

Mr. GOODLATTE. Congresswoman Adams had a dialogue with Mr. 

Saltzburg, and I would like you to comment on that. Professor 

Saltzburg writes in his testimony that only a handful of cases have 

been handled by military commissions, and the military commission process has been hampered by starts and stops, changes in the 

rules, and uncertainty about exactly how cases would proceed. 

Those are Professor Saltzburg’s words in his testimony. 

What is the main cause of those starts and stops and changes in 

the rules that the professor cites? It is directed to you, Mr. 

Stimson. 

Mr. STIMSON. Well, there have been aggressive and, in my opinion, appropriate legal challenges to military commissions, and 

those challenges have taken a great deal of time. 

Mr. GOODLATTE. Let me ask Mr. Beamer. Were you or the other 

victims’ families contacted by the Administration in anticipation of 

yesterday’s announcement? 

Mr. BEAMER. Negative. 

Mr. GOODLATTE. And how about any of the attorneys on behalf 

of the conspirators? Have they contacted you? 

Mr. BEAMER. No. 

Mr. GOODLATTE. Interviewed you in preparation for a defense? 

Mr. BEAMER. No. 

Mr. GOODLATTE. And, Ms. Hessler, can you tell us, as a constitutional scholar, what problems you think will manifest themselves 

in proceeding in Article III courts for some terrorists and in military commissions for others? Are we approaching a bifurcated system of rights? 

Ms. HESSLER. It certainly seems that way. Eric Holder’s statement yesterday made clear that he was very, very reluctant to be 

transferring this case back to a military commission, and he expressed a commitment to continue Article III courts and he outright criticized Congress for its role in that. 

Mr. GOODLATTE. And based on what you have seen from the Administration when it comes to dealing with terrorists, does there 

appear to be a well thought out system based on constitutional 

principles or is it a rudderless approach? 

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81 

day’s announcement, there does not seem to be a coherent policy 

in place. 

Mr. GOODLATTE. And has the President, who was a constitutional 

law professor at one point, ever made any statements about the effectiveness of military commissions? 

Ms. HESSLER. He said that the military commissions are fair and 

he said that they can be a vital tool to protecting national security 

information. 

Mr. GOODLATTE. Mr. Stimson, I saw you nodding your head. Do 

you have anything to add to that? 

Mr. STIMSON. Well, I would direct your attention, Mr. Goodlatte, 

to his May 21st, 2009 speech at the National Archives, and he commended the use of military commissions for appropriate cases. 

Mr. GOODLATTE. And let me ask you about the soundness of that. 

According to news reports, KSM and his four co-conspirators will 

be tried together. Does the Military Commissions Act address trials 

involving multiple defendants? 

Mr. STIMSON. It does, sir. 

Mr. GOODLATTE. In what way? 

Mr. STIMSON. It is allowed. 

Mr. GOODLATTE. So you think this is a workable mechanism. 

Mr. STIMSON. It is a workable mechanism, just as it would be in 

Federal court. 

Mr. GOODLATTE. Thank you very much. 

Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. The Chair will recognize himself to conclude the hearing. 

You are back. The Chair recognizes the gentlewoman from California, Ms. Chu. 

Ms. CHU. Professor Saltzburg, a number of people today have 

discussed the fact that nearly 10 years have passed since the attack on 9/11. While I agree that the delay in bringing these co-conspirators to justice is unacceptable, I think it is worth understanding what the delay is about. So, Professor Saltzburg, can you 

help us understand why this has taken so long? 

Mr. SALTZBURG. You know, there is a lot of blame that could go 

around. There has been uncertainty about whether or not to proceed in commissions or in Article III courts, as I think Mr. Stimson 

said. There were challenges to the commission process which, as he 

put it, were legitimate challenges, ultimately going all the way to 

the Supreme Court, and when the Supreme Court said that the 

commissions as constituted earlier on were inadequate and the legislation was required, Congress responded in 2006. There was further criticism of the military commission process. Congress responded again. And President Obama, when he took office, said he 

wanted to take a look at which forum made most sense, and so he 

stopped things for a while. 

It has been a process of debate within this branch of Government, within the executive branch, and among the American people 

of uncertainty, I think, about how to proceed, and when we thought 

we knew how to proceed, we had challenges to tended to gum up 

the works. 

Ms. CHU. Let me ask another question pertaining to the Federal 

courts. Opponents of trying the conspirators of 9/11 in Federal 

82 

criminal courts have argued that Federal courts can’t protect classified information and that the defendants will be able to use the 

trials as a platform for their views. So, Professor Saltzburg, can 

you respond to those accusations about the Federal courts? 

Mr. SALTZBURG. Federal courts have shown they are perfectly capable of protecting classified information. I have personal experience. During Iran-Contra when Lieutenant Colonel North was 

being prosecuted, I represented the Department of Justice that was 

responsible for dealing with all classified information, and there 

has never been a case in which more classified information was in 

dispute than that case. Federal courts can do it. 

As for the second part of the question, which was—can you remind—— 

Ms. CHU. Using the trials as a platform for their views. 

Mr. SALTZBURG. Whatever the forum, military commission or 

Federal court, the defendant is going to have a chance to address 

the court, and I suspect that these defendants will say things that 

will make our blood boil, that will make us angry, that will remind 

us why we hate them so much. And then a Federal judge or a military commission judge will tell them what Judge Brinkema told 

Moussaoui, which is in his case you will have 23 hours a day to 

think about the horrible crimes you committed and, depending on 

the penalty that is imposed, a Federal judge will have the last 

word and it is powerful word. And that Federal judge will either 

be a commission judge or an Article III judge. But the last word 

will come from a judge. 

Ms. CHU. And how does empowering military commissions to try 

detainees undermine the established authority and expertise of the 

Federal courts? Do you think that it does or what is your opinion 

on that, Professor Saltzburg? 

Mr. SALTZBURG. I don’t think it undermines the authority of Federal courts. The notion, though, that Federal courts can’t do this 

or that because they can’t handle classified information or they are 

unable to deal with unruly defendants just ignores the success that 

they have had in handling more than 400 terrorist cases. It has not 

been a problem for Federal courts, and they ought not to be—their 

ability to do it ought not to be denigrated. 

Ms. CHU. Thank you. 

I yield back. 

Mr. SENSENBRENNER. The Chair now recognizes himself for 5 

minutes to close the hearing. 

Probably the most famous military commission trials were the 

ones that were held following the end of the Second World War at 

Nuremberg and in Tokyo. And, Professor Saltzburg, do you think 

that the people who were tried in those tribunals should have been 

tried in an Article III court? 

Mr. SALTZBURG. I do not. 

Mr. SENSENBRENNER. And why? 

Mr. SALTZBURG. Because we were truly in a traditional war 

against nations, and those combatants who violated the laws of war 

were seized largely in Germany and Japan and they were prosecuted appropriately there where the evidence was. They were 

prosecuted promptly. And I think that, looking back, we can take 

a lot of pride in the way those proceedings were conducted, and 

83 

they were conducted, by the way, not only by us but by our allies 

who joined together in saying this is the way that justice should 

be done. 

Mr. SENSENBRENNER. Well, most of the evidence in terms of the 

9/11 plots was not in the United States and most of the conspiracy 

was not in the United States. So if we are concerned about a chain 

of evidence problem in a criminal trial in an Article III court, how 

are you able to get the convictions if you can’t get the chain of evidence with the different rules of evidence that are used in criminal 

trials? 

Mr. SALTZBURG. The Attorney General said that he had no doubt 

that they had sufficient admissible evidence to convict all five persons they had, perfectly capable of accounting for the chain of evidence. Indeed, as I think Mr. Gohmert said, they have admissible 

statements by the defendants admitting their guilt, which were obtained in a courtroom in a process which there is no doubt in my 

mind they will be admissible in any tribunal. So we don’t have a 

situation in which, because of the way in which people were seized, 

that evidence that only exists abroad and is necessary for a prosecution—we don’t have that situation here. 

Mr. SENSENBRENNER. Mr. Stimson, what is your view on that? 

Mr. STIMSON. I think it is speculative at best to suggest that anyone in this room has seen all of the evidence that the prosecution 

has at their disposal, evaluated in terms of admissibility, and I 

have no doubt, having seen some of the evidence myself, that there 

will be more evidence available to the prosecutors in a military 

commissions context than in a Federal court context. And more evidence is better than less evidence. 

Mr. SENSENBRENNER. Ms. Hessler? 

Ms. HESSLER. I would agree. Certainly more evidence will be allowed in the military commission. 

Mr. SENSENBRENNER. Thank you very much. 

That concludes my questions. 

I would like to thank all of the witnesses for their testimony. It 

has all been very relevant and all probably had to have been 

changed almost 180 degrees when the Attorney General changed 

his position 180 degrees. 

Let me say that I think that the Congress was representing the 

American people when last Congress, which was under different 

management than the House is under this Congress, basically put 

the restrictions on closing Guantanamo, buying a prison in Illinois, 

and trying KSM and his co-conspirators in New York City. I think 

we now have gotten through all the preliminaries on in what forum 

and where the trial will be held. And I hope that there are no further delays by the Government, and I include both the Defense and 

Justice Departments in that hope so that these people will be 

placed on trial. If they plead guilty, as they have done before, they 

can be punished according to law, and I think we can come to closure at least on this phase of 9/11. 

So thank you again, and the hearing is adjourned without objection. 

[Whereupon, at 11:51 a.m., the Subcommittee was adjourned.] 

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134 


65601L-6.eps
135 


65601L-7.eps
136 


65601L-8.eps
137 


65601L-9.eps
138 


65601L-10.eps
139 


65601L-11.eps
140 


65601L-12.eps
141 


65601L-13.eps
142 


65601L-14.eps
143 


65601L-15.eps
144 


65601L-16.eps
145 


65601L-17.eps
146 


65601L-18.eps
147 

Æ 


65601L-19.eps