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PROTECTING U.S. CITIZENS’ CONSTITUTIONAL 

RIGHTS DURING THE WAR ON TERROR 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MAY 22, 2013 

Serial No. 113–21 

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 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

MAY 22, 2013 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

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

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

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

of New York, and Member, Committee on the Judiciary ................................. 4 

WITNESSES 

Robert Chesney, Charles I. Francis Professor of Law, University of Texas 

School of Law, University of Texas School of Law, and a Non-Resident 

Senior Fellow, The Brookings Institution 

Oral Testimony ..................................................................................................... 6 

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

Benjamin Wittes, Senior Fellow in Governance Studies and Research Director 

in Public Law, The Brookings Institution 

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

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

Steven A. Engel, Partner, Dechert, LLP 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

Mary Ellen O’Connell, Robert and Marion Short Professor of Law, University 

of Notre Dame Law School 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 74 

(1) 

PROTECTING U.S. CITIZENS’ 

CONSTITUTIONAL RIGHTS 

DURING THE WAR ON TERROR 

WEDNESDAY, MAY 22, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:13 a.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Chabot, King, Franks, 

Gohmert, Poe, Farenthold, Conyers, Nadler, Scott, Lofgren, Jackson Lee, Johnson, Chu, Richmond, and DelBene. 

Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Jason 

Cervenak, Counsel; Kelsey Deterding, Clerk; (Minority) Perry Apelbaum, Staff Director & Chief Counsel; Danielle Brown, Parliamentarian; and Aaron Hiller, Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time, and we welcome everyone to today’s 

hearing on ‘‘Protecting U.S. Citizens’ Constitutional Rights During 

the War on Terror.’’ 

I will begin by recognizing myself for an opening statement and 

then the Ranking Member of the Committee. I want to welcome everyone to today’s hearing on ‘‘Protecting U.S. Citizens’ Constitutional Rights During the War on Terror.’’ On September 18, 2001, 

Congress enacted the Authorization for the Use of Military Force, 

which empowered the President to use all necessary and appropriate force against those Nations, organizations or persons he determined, planned, authorized, committed or aided the terrorist attacks in order to prevent any future acts of international terrorism 

against the United States. 

Section 1021 of the fiscal year 2012 National Defense Authorization Act reaffirms the President’s authority to detain so-called 

enemy combatants by affirming that the authority of the President 

to use all necessary and appropriate force, pursuant to the authorization for use of military force includes the authority for the 
2 

Armed Forces of the United States to detain covered persons pending disposition under the law of war. 

The law defines ‘‘covered person’’ as either a person who planned, 

authorized, committed or aided the terrorist attacks that occurred 

on September 11, 2001, or harbored those responsible for those attacks, or a person who was a part of or substantially supported alQaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, including 

any person who has committed a belligerent act or who has directly 

supported such hostilities in aid of such enemy forces. 

It defines disposition under the law of war to include first detention under the law of war without trial until the end of the hostilities; two, trial by military commission; three, trial by an alternative court or competent tribunal having lawful jurisdiction; and 

four, transfer of the custody or control of the person’s country of origin, any other foreign country to the custody or control of the person’s country of origin, any other foreign country or any other foreign entity. 

A number of Members from both sides of the aisle have expressed extreme discomfort and even outrage at the notion that a 

United States citizen apprehended on United States soil can potentially be held indefinitely under this act without receiving their full 

panoply of rights guaranteed under the constitution. I, for one, 

share this concern. 

I support making it clear that the United States citizens apprehended and detained in the United States, pursuant to the authorization for use of military force or the National Defense Authorization Act, should be transferred for trial in proceedings by a court 

established under Article III of the Constitution or by an appropriate State court and that such trial and proceedings have all the 

due process as provided for under the Constitution of the United 

States. 

I intend to explore avenues through this Committee to achieve 

a similar result. I am not persuaded by those who say that in practice this Administration and future Administrations will not exercise their authority to indefinitely detain United States citizens 

who have been apprehended in the United States. The mere notion 

that this authority exists is troubling in and of itself, and I believe 

that this body should make clear that citizens of this Nation cannot 

be detained without receiving all of their due process rights in an 

Article III court. 

In an attempt to address the concerns of those of us who are 

troubled by the indefinite detention authority under the AUMF, 

the Fiscal Year 2013 National Defense Authorization Act included 

language reaffirming the availability of the writ of habeas corpus 

for any person detained in the United States pursuant to the 2001 

Authorization for Use of Military Force or the Fiscal Year 2012 National Defense Authorization Act. While this provision is a step in 

the right direction, it does not go far enough to ensure that Americans are receiving all the due process rights the constitution confers. 

For instance, the petitioner is placed at a disadvantage vis-a-vis 

the government when petitioning for is a writ of habeas corpus. 

Hearsay evidence is permissible against the detained individual 
3 

and the government enjoys a rebuttable presumption that its evidence is accurate and authentic. So, essentially, a United States 

citizen has the burden of proving he or she is not an enemy combatant in order to escape indefinite detention, rather than the 

other way around, rather than the requirement that one be proven—that one be considered innocent until proven guilty. To most 

Americans, this would seem unfair. 

As we begin consideration of the fiscal year 2014 National Defense Authorization Act, it is my sincere hope that we can fully 

confront these important issues and finally put them behind us, 

keeping in mind that we should never sacrifice our freedom for our 

security. For if we do, as Ben Franklin correctly pointed out, we 

will not have either one. I look forward to hearing from today’s witnesses, and now it is my pleasure to recognize the gentleman from 

Michigan, the Ranking Member of the Committee, Mr. Conyers, for 

his opening statement. 

Mr. CONYERS. Thank you, Chairman Goodlatte. 

This is an important hearing, and while I will not cite you among 

the two people I am about to quote, namely James Madison and 

Justice Stevens, I do commend you for holding this hearing and 

opening us up for a very important discussion. 

Why Madison? Because he said, ‘‘Of all the enemies to public liberty war is, perhaps, the most to be dreaded, . . . No Nation could 

preserve its freedom in the midst of continual warfare.’’ 

And of course, our beloved Supreme Court Justice John Paul Stevens wrote in Rumsfeld v. Padilla, ‘‘If this nation is to remain true 

to the ideals symbolized by its flag, it must not wield the tools of 

tyrants even to resist an assault by the forces of tyranny.’’ 

And since September 11, 2001, it seems to me and others here 

that we have strayed from this wisdom, and this hearing is a welcome sign that we are beginning to try to find our way back. Three 

principles: One is Ex parte Milligan. If the civilian courts are open 

for business, we ought to use them to try civilians, and the Supreme Court, in 1866, explained laws and usages of war can never 

be applied to citizens in States which have upheld the authority of 

the government and where the courts are open and their processes 

unobstructed. That decision, Milligan, is applicable today as it was 

in the throes of the civil war. 

Since September 11, 2001, we convicted almost 500 individuals 

of terrorism-related charges in civilian courts. Not one has ever escaped, and among the Federal district courts, 60 of them in 37 

States have participated in these convictions. None has ever suffered retaliations or reprisal. The courts have not been a target. 

In short, no weapon in our counterterrorism arsenal is more effective than our civilian criminal courts. By adhering to Milligan, 

we both secure our Nation and give appropriate deference to the 

rule of law. Now, there may be limited exceptions to the Milligan 

rule, but they should be used sparingly and only when expressly 

permitted by Congress, and I am particularly concerned about the 

speed with which some would have us abandon this principle in the 

moments immediately following a national emergency. 

Example, in the aftermath of the Boston Marathon bombing, 

some of our colleagues urged the President to treat the surviving 

suspect as an enemy combatant rather than as a criminal defend-
4 

ant. That request was, to put it kindly, misguided. The enemy combat option, as those Members described it, is not even available in 

this case as a matter of law, for there is simply no evidence to support the claim that the suspect in the case is a covered person, as 

defined by the National Defense Authorization Act, who may be 

held indefinitely under the auspices of the 2001 Authorization for 

the Use of Military Force. 

Now, even if the combat option were available, it is not clear why 

we would want to choose it. The government has never successfully 

exercised that option for a United States citizen captured on 

United States’ soil. Why would we risk an uncertain military commission on one hand for the full weight of the Federal judiciary on 

the other? Why risk a military commission that we altered, by the 

way, four times yet and still have it with certain flaws. 

I believe we should expand the scope of this discussion from the 

narrow topic of United States citizens captured on American soil to 

include others within the United States and even others abroad. It 

is well established that all persons in the custody of the United 

States, not merely citizens, may challenge their detention in a Federal court. The Supreme Court reiterated that principle with respect to the Guantanamo detainees in Boumediene v. Bush, and we 

should no longer entertain the legal fiction that the prison at 

Guantanamo Bay is somehow outside the jurisdiction of the United 

States. There are 166 persons there, 86 of whom have already been 

cleared for transfer. There is no compelling reason to hold these 

suspected terrorists indefinitely, their countries of origin notwithstanding. 

The means to bring them to justice, if warranted, is available to 

us at any time we have the courage to bring these persons to trial, 

and if we are to have a serious debate about how to make 13 years 

of indefinite detention in Guantanamo square with our values and 

our Constitution, then we ought to include everyone in our custody 

as part of this discussion. 

And so I join with the Chairman of this Committee in welcoming 

the witnesses, particularly our one witness, Professor O’Connell, 

and I yield back anytime I have. 

And if I have extended, I thank the Chairman for his courtesy. 

Mr. GOODLATTE. We thank the Ranking Member for his comments. 

And the Chair was about to ask if other Members would agree 

to submit their opening statements. 

Mr. NADLER. If I could. 

Mr. GOODLATTE. The gentlemen from New York has a brief statement he wants to make. 

Mr. NADLER. Yes, thank you. 

Mr. GOODLATTE. Recognize for—— 

Mr. NADLER. I just want to thank the Chairman for calling this 

very important hearing on this very crucial subject. I want to say 

that I find myself in general agreement with both the comments 

of the Ranking Member and of the Chairman, and I look forward 

to working with the Chairman and the Ranking Member on remedial legislation. 

I just want to say one thing, and that is, everything the Chairman said about American citizens in the United States I agree 
5 

with. I think it also applies to noncitizens in the United States, 

since the Constitution makes no distinction with respect to the constitutional rights in the Bill of Rights on people in the United 

States, whether they be citizens or not. 

Having said that, again, I think this hearing is long overdue. We 

have to rein in perhaps the executive branch and make sure that 

when we are in a long-term war, war on terror, call it what you 

will, the executive, regardless of the war at least, following a 50- 

year Cold War, punctuated by some periods of hot wars, so it has 

been since 1945, almost a constant state of mobilization, so to 

speak. James Madison’s words ring very, very true, and it is our 

job to try to make sure that our civil liberties survive intact. 

I thank you. I yield back. 

Mr. GOODLATTE. I thank the gentleman. 

And we will now welcome our distinguished panel today. 

And if you would all rise, I’ll begin by swearing you all in. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. 

Let the record reflect that all the witnesses responded in the affirmative. 

Thank you, and I’ll now introduce our distinguished panel. 

Our first witness is Professor Robert Chesney, the Charles I. 

Francis Professor in Law and associate dean for academic affairs 

at the University of Texas School of Law. Professor Chesney specializes in a broad range of issues regarding U.S. national security 

law, such as military detention, the role of the judiciary in national 

security affairs and terrorism related prosecutions. He is a nonresident senior fellow of the Brookings Institution as well as a 

team member of the Council on Foreign Relations. Previously, he 

served on President Obama’s detention policy task force. Mr. 

Chesney earned his bachelor’s degree in political science and psychology from Texas Christian University and subsequently graduated magna cum laude from Harvard Law School. 

We welcome his experience and expertise. 

Our second witness today is Mr. Benjamin Wittes, the senior fellow in governing studies at the Brookings Institution and codirector of the Harvard Law School Brookings Project on Law and 

Security. He’s the author of ‘‘Law and the Long War: A Future of 

Justice in the Age of Terror,’’ published in June 2008, and the editor of the 2009 Brookings book, ‘‘Legislating the War on Terror: An 

Agenda for Reform.’’ Mr. Wittes cofounded and is editor-in-chief of 

the Lawfare blog, a non-idealogical discussion of hard national security choices. Between 1997 and 2006, he served as an editorial 

writer for the Washington Post, specializing in legal affairs. Mr. 

Wittes is also an alumnus of Oberlin College. We thank him for 

serving as a witness today and look forward to his insight into this 

complex topic 

Our third witness is Mr. Steven Engel, a partner at Dechert, 

LLP law firm. Previously, he clerked on the U.S. Court of Appeals 

for the Ninth Circuit for now Chief Judge Alex Kozinski and on the 

U.S. Supreme Court for Associate Justice Anthony M. Kennedy. 

Mr. Engel is a member of the Pro Bono Panel for the U.S. Court 

of Appeals for the Second Circuit, and he also served as deputy assistant attorney general for the United States Department of Jus-
6 

tice’s Office of Legal Counsel. Mr. Engel graduated with his bachelor’s degree sum cum laude from Harvard and his JD from Yale 

Law School where he served as the essay editor of the Yale Law 

Journal. We are pleased to have him with us today. 

Our final witness is Professor Mary Ellen O’Connell from the 

University of Notre Dame, where she serves as the Robert and 

Marion Short Chair in Law and Research Professor of International Dispute Resolution at the Kroc Institute for International 

Peace studies. That’s a long title. 

Ms. O’CONNELL. Very long title. 

Mr. GOODLATTE. Previously she taught at the Ohio State University as the William Saxbe Designated Professor of Law at the 

Moritz College of Law, as well as a fellow of the Mershon Center 

for the Study of International Security and Public Policy. She has 

also taught courses on international law in Italy and Germany. 

Professor O’Connell graduated Phi Beta Kappa from the Northwestern University and received her JD from the Columbia University School of Law, where she won the Berger prize for international law. We are pleased to have her with us today. 

Thank you all for joining, and we will begin with Professor 

Chesney. 

TESTIMONY OF ROBERT CHESNEY, CHARLES I. FRANCIS PROFESSOR OF LAW, UNIVERSITY OF TEXAS SCHOOL OF LAW, 

UNIVERSITY OF TEXAS SCHOOL OF LAW, AND A NON-RESIDENT SENIOR FELLOW, THE BROOKINGS INSTITUTION 

Mr. CHESNEY. Thank you. Thank you, Chairman Goodlatte, 

Ranking Member Conyers, and Members of the Committee. My colleague, Ben Wittes and I prepared a joint written statement supporting a single recommendation. Specifically, we recommend that 

Congress codify what already has become the practical status quo 

with respect to military detention of persons captured in the 

United States; that is, Congress should put to rest the question at 

long last of the legality of such detentions, explicitly stating the detention authority under the AUMF and NDAA for fiscal 2012 does 

not extend to any person captured within the territory of the 

United States. 

In support of this view, I’ll use my time to discuss the legal backdrop against which this question arises, and then the next witness, 

my colleague, Mr. Wittes, will discuss the practical and policy consideration that support our recommendation against the backdrop 

of those legal considerations. 

So, on the law, there are a handful of points that bear emphasis. 

First, we begin with the proposition that it is quite clear that when 

a U.S. citizen becomes a soldier in the Armed Forces of an enemy 

during war, that citizen is subject to detention just like any other 

enemy soldier, even if it’s in the United States, as the Civil War 

emphasized and demonstrated to us on a grand scale. Supreme 

Court said as much in Ex parte Quirin during World War II, when 

it was confronted with at least two individuals amongst a group of 

German military personnel who had come into the United States 

as saboteurs. And in Ex parte Quirin, the Court said their citizenship doesn’t relieve them of the consequences of their belligerency. 
7 

That’s not the only relevant consideration, however. Quirin is 

just one pole in this debate. The other pole, as was mentioned by 

Ranking Member Conyers a moment, Ex parte Milligan, a Civil 

War era case in which the government confronted what we might 

today describe as a sleeper cell, a clandestine group of individuals 

who were plotting to carry out an attack on a military installation, 

In that case, an Indiana POW camp where Confederate soldiers 

were held. These men were plotting to seize weapons, attack the 

Union forces there, free the Confederate forces and further the 

cause of the Confederacy. The thing was, they were not themselves 

Confederate military personnel. And the Supreme Court in 1866 in 

a landmark decision held that where persons are not members of 

the military force of the enemy and where the civilian courts are 

otherwise open, in such circumstances, military authority was not 

appropriate. 

Now, for some, post-9/11 events that we grapple with look a lot 

like Ex parte Quirin; for others, they look a lot like Ex parte Milligan. The problem, of course, is that in many, if not most, of these 

instances, they partake of both those decisions, and they have elements that pull in both directions. Complicating matters further, 

since World War II in the Quirin decision, we’ve had a statutory 

development, the adoption in the early 1970’s of the Non-Detention 

Act. The Non-Detention act, in brief, states that detention of citizens must be pursuant to statute, thus raising forever after, as 

long as that’s on the books, the question of whether any given authorization for force or declaration of war is explicitly clear enough 

to justify citizen detention, even if detention would otherwise be 

lawful in light of Milligan and Quirin. 

So, that’s the backdrop that the courts have had to struggle with 

in the post-9/11 period in the handful of instances in which citizens 

or persons captured in the United States have come into military 

custody. It’s important to realize there have only been three such 

instances, if we set aside the John Walker Lindh example, and 

maybe that’s a brief fourth one. 

The first major instance to come to head was the HAMDI case. 

Now, Hamdi was captured on the battlefield in Afghanistan. He 

was very analogous to a more conventional scenario where the person allegedly was a member of the armed forces of the enemy in 

a war zone, and the Supreme Court made clear that in those circumstances, if the factual claims against him were true, there is 

detention authority. 

The cases that are of more interest today are the cases of Jose 

Padilla and Ali al-Marri; Jose Padilla, an American citizen; alMarri, not a citizen but lawfully present in the United States when 

he was captured, both captured here, both alleged al-Qaeda sleeper 

cell members. 

Suffice to say that the courts splintered widely and wildly as to 

the legality of their detention. In Padilla’s case, it never reached 

a merits decision by a majority of the supreme court, and yet we 

can count heads and say that there was in fact a majority to say 

no in his case, most likely on the grounds of the Non-Detention 

Act. We can say that because when his case did reach the court, 

there was a brief—there was a ruling on procedure that the majority focused on, but there were four dissenters who focused on the 
8 

merits. One other member of the Court, Justice Scalia, made clear 

in another case, the Hamdi case, that he was hostile to the position 

of citizen detention as well. Counting heads, it was fairly clear the 

government would lose on the merits, which is the most likely reason why the government ultimately transferred him to civilian custody. 

Now, my time has expired, so I will stop here and let my colleague, Mr. Wittes, continue with the policy implications of this uncertainty. 

Mr. GOODLATTE. Mr. Wittes, welcome. 

TESTIMONY OF BENJAMIN WITTES, SENIOR FELLOW IN GOVERNANCE STUDIES AND RESEARCH DIRECTOR IN PUBLIC 

LAW, THE BROOKINGS INSTITUTION 

Mr. WITTES. Thank you, Chairman Goodlatte, Ranking Member 

Conyers and Member of the Committee. 

I want to pick up right where Professor Chesney left off and discuss briefly our single recommendation that as he said, Congress 

should put to rest the uncertainty he described over domestic military detention by clarifying that neither the AUMF nor the NDAA 

2012 should be read to confer detention authority over persons captured within the United States, whether citizens or not. 

The benefits of keeping the military detention option open are 

slim and hypothetical while the offsetting costs are substantial, in 

our view. The executive branch, let me start by saying, has no interest in using detention authority domestically, contrary to a lot 

of the popular mythology. The Bush Administration actually had 

little appetite for military detention in such cases all along. 

The experiments that Professor Chesney refers to of detention 

with Padilla and al-Marri did very little to encourage a different 

course, given the legal uncertainties the cases exposed, and that 

uncertainty has in turn created an enormous disincentive for any 

Administration of whatever political stripe to attempt this sort of 

detention again. 

So, a de facto policy developed in favor of using the criminal justice apparatus whenever humanly possible for terrorist suspects 

apprehended in the United States. While military detention has remained potentially available as a theoretical matter, therefore, it is 

not functionally available for two simple reasons: First, because executive branch lawyers are not adequately confident that the Supreme Court would affirm its legality; and secondly, because the 

executive has a far more reliable alternative in the criminal justice 

apparatus. 

The Obama Administration later made this unstated policy official, announcing publicly that it would use the criminal justice system exclusively both for domestic captures and for citizens captured anywhere in the world. 

But ironically, even as this strong bipartisan executive norm 

against military detention of domestic captures developed, a fierce 

commitment to this type of detention has also developed in some 

quarters. The fact that the norm against detention is not currently 

written into law has helped fuel this commitment, enabling the 
9 

persistent perception that there is greater policy latitude than 

functionally exists. The result is that every time a major terrorist 

suspect has been taken into custody domestically in recent years, 

the country explodes in the exact same unproductive and divisive 

political debate. 

In other words, there’s a big gulf between the real functional 

state of play in which the criminal justice system provides the exclusive means of processing terrorist suspects captured within the 

United States and the perception in some quarters that military 

detention remains a viable option, perhaps even a norm for domestic terrorist captures, and that gulf has real costs. 

Closing off the possibility of the executive branch’s trying such 

detention again in the future is not without potential cost of its 

own. It is certainly possible that we will one day again confront a 

case like that of Jose Padilla, which was a very scary case, in 

which strong evidence exists that an individual member of an 

AUMF covered group poses a huge threat within the United States 

but in which the evidence supporting this view is either too sensitive to disclose or inadmissible, and in such a situation, flexibility 

would be a real virtue. 

But we believe that situation is far less likely to develop today 

than it was when the Bush Administration conduct—confronted the 

Padilla case in 2002. To put it bluntly, we’re a lot better at these 

cases now than we were then. And aside from a Padilla-like scenario, a ban on military detention for domestic captures would foreclose no course of action that is realistically available to the executive branch now, given its own preferences and prudential judgments. It would, rather, merely codify the existing understanding 

reflected in executive branch policy and practice, policy and practice that has been reinforced over the years by well-informed expectations about the likely views of the justices on the underlying 

legal questions. 

In other words, the costs of the legal uncertainty and political 

friction overhanging the domestic military detention option simply 

outweigh any hypothetical benefits of continuing to leave that option open as a statutory matter, and we, therefore, favor legislation 

that would clarify that military detention in counterterrorism 

under the AUMF is not available with respect to any persons arrested within the United States. 

We look forward to answering your questions. Thank you. 

Mr. GOODLATTE. Thank you, Mr. Wittes. 

[The joint prepared statement of Mr. Chesney and Mr. Wittes follows:] 
10 

Governance Studies 

a t BROOKINGS 

Prepared Statement of 

Robert Chesney 

May 22. 2013 

Professor of Law at the University ofTc."as School 

of Law and Non-Resident Senior Fellow at the 

Brookings Institution 

and 

Benjamin Wittes 

Senior Fellow at the Brookings Institution 

before the 

House Committee on the Judiciary 

"Protec.ting U.S. Citizens' Constitutional Rights 

During the War on Terror" 

May 22, 2013 
11 

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' .. ....",lly~ligtl"i! wnuld prob;>bly POll 'pptOW 11>0' u.<'of Ior.g,l..rm mU!r"'Y 

,\eMUim ",>J ..... C'<lk"o"o( tho Aul!>"';'_".'" (0' tl'" U,..01 \!iIi",'Y (()I"Ol (Alff,.l ) 

with re;r«1 10 " VIl;Ii'd SI"e, rilillom .\<,.,;""" who w.,,; ~rrl"j.l...J b)' 1.1"" 

""f"'''''''''''1 .,Ulh<"iliM wil!>'" 11>1' Unih'd Still,,". lVhetr..r;1 """,Id .'ppml't' 

IleMll10n fn< ~ "",,·cil""'" Il,ph"" d w;lhi" Ihi< Un;H"; S .. ,k", i. ~Ist> in d,",b!. 

,hQ,.,gh In. J""!I~rL' I~d,,;.,. in 1n.'1 ",,,inlS' 

SIoctll11!. "'m'nl rrim;".,1 iU'!''''' .,,, tly)ril~ prnvido ~mple KTtlllt,.;!< I", c"'~" Tin 8 

Ih<l in<'~I""-jlalioo ,,f ",d, 1"",<1"' in "" .. I (o",,",.,~bjp im~,,,,,"" , IN-N l< liliJ. if 

"")'minlS 'Q be (pi...J fur ,k"",«,,,,,,, br,""" in !'.',,,,bl;~ wiilt 'h" ,1on","I'" 

",iliL1'l' d"'Mlion "'rti<;on. ",hlch W<)l,~1 "'''Y ';gn;r"",n' liIi&'linn ri5k "tid 

gIlO".'I<... divi,iv ~ p<~;' ;ml (rl<linn. 

Thinl, "I'~ gh 'n~ IIllsh adm'n;"'T~t lon did ...... "'ili'. 'l' d."~H"n 1m dom ... ,k 

"'pI,.,,,,, in tw" i"'I" ....... _ '''''' inWlI\'injI., ",liz.." anod ,. " non,o;lil .... -il 

lypic.Uy ,~Ii<ld on ,he m'nin;~ ;",110: .)·"~m in.<I,,,,..,J.lndM<i. in lhv.c""",,,(lhP 

cll~f\ d~.~i~, i, .... ..,n" ... lIy b.1<k.,d a,~~y in tt><> rd..., Ql., k'oolTring:j1)dkW 

""·e,,,"I. lhf.Ob.""" adIJtini,;Ir.Ho" h .... SI")""i uu. mo,,,.,. 'ak;nS'im;l",actio" 

with ""'I""" ,,, 'Iled",,,,,,,,,,,,,,,,,,cl,i;:,,,, ,i<'I~;, ..... in m;~t"ryf"''',.Jy . rod"y it l, 

highly llJlHk"ly <ha'.m .dmmi<lr."Ion"reilho-, I'o"ny wrw.,~j ""~n>pl ~ 'I\<!! ,he ..... 

aUlhoriti ... ''!I.,1n. 

~"tlrth. 1>;,.-_, .... Ihi..,., opi""'" "nn...lhe-i.,." !>.".~ n,1I fQrnl.ll ly 110.... " (OJ't'l'1oseil in 

\IIw. th"", ~'" p<'riodlc ""'¥" of In",....", '" lhom . boU, 1"'1;'k.I .<upf"'t1(' .... ~n.:l 

op?""",,,t>;-. Supporw", d"",/Illd 'Mi, """ in r;J5ot>< Ii ... lh.Jl o( th. h''''' M .. r~lhnn 

bQmbing. Opf""""n!:', ",;.""while. h,w~ g<n.' IQ mu" I""""k injuno.tj\," ",~d 

"&'in!-I 1,w or " .. , d<:h"">I>n ,," thoril''''' b.>.«'d Qtl <I>('('t'l""v ~ r""", <Jf fIllli':>')' 
12 

,!;o'd'ltion> tn;.1 will noll:,\:" pi""",, All <If !hi.i,d'-<"'?t!"'. lInll"'irdb! .... ' n.1 

,"""',..,....'}., 

Il.r.oe<I on lho!>e ~"'~ ,,'" u..,rer"", rNf>m1Jl<'f\J lh;,t C~ mJifv in 

s","M In.J;oy" p""-1i'''1 ~L' IO ~ '1"0.. 'n,." , CQf\8~ <hnukl .'''Il! p~~;n' )' ,h. .. <W I""'",,, ",,,hn';ly und<..,. 100 AUMP ~nd I"" :\'DAA ~ n<lt ",,,..,11 10 .my 

per.-on, "'P",,'."<.l wilho-. th< k..nt<l<:y nr I),;, UO;I",I St." ........ We PrQ,;Je a mQ'" 

0:"1"-"'1, ... ,.- ~~ Ion "I W<O!' roint<i;t.olow. in IwO I"'n.,- 11 .. 'Ii .... p.," ",,,Ii,,,,,, Ih~ 

.'&,1 <m«'XI Zlg","'1 whim 111.-.-...., ,""""" a""" 10<1.1y. n... ,,,,,.,,,<1 <1,",-""""" lho> 

f"""'1;O-di ,,00 p<li>('y <~"'-"""" <)/ I.-. in~ the c"UfW,,1 ;t,,1\$ 'l',,, "rl<<><-I,fied in 

~~l tW~ and <"<P";'" fl'" ""'Qn1""",<I;oli"" 100: 1"git<I~lion_ 

The legal ConteKt of Military Detention of CItizens and Persons 

captured Within the United State; 

In ""' ''~ ci,nu ... ",,,,,,,,- II", dom ... ti,· ' '''e 0/ ~,w of w;or .Jet"" I""" n.,~rly 10 la",f,,) 

."d ~rprnpn. ,. n", A"",no.nC;vil Wa, prov;J.,; 11,.. ~I ~.,., ,, p]p, ',,"I.IxKOI 

,,~ery "'"*' of I"" c""r.,J.,mte "'J~ .... att<'OCh.J ,-.-..J d""in&l by 1)h,1)n 1",,,,.- in 

Ih.u ronfil<1 """"i,An'''','''o ,'il"""'" n-., probJ",,, "I '"'lin' ..... fighlinK In, I"" 

ent'fJ\)' bM not """" ~m' O'd to lheCivU W;or. 00",,,,,,,,,. fur v.ryillg "' ~ 

An",';",,, dliz,--"" ruow I,~ ghl r", th< ...,..,,,)' in ..,Vl:r.1 ,,,,,,,,,,,,,,n,,,1'I; "" \Y"'I, 

World W., II pn"'i£l<w,~ pooir" <lriJdl'8 e<',mp!.J,.llw "...,It<'d b, f"""'r~ «J "" 

d.;!ci~i<>N;. One involved ." Anw"",n ('Iii"""··"""'"",, T"""""·w",, g~ tip In 

liMy "nd was...".mpl<"d into th" lloii.utAm,Y. QnI~ IOl'<' r;'p'tlr«l "uring the 

.m<'<i In,' .... "", Of Sicily ...... Ih<>o h;old fQ' }'~lt'!' ... <~ f'OW. n..;,Qtho;o< Involv<"1 n 

~I'<'''P of '",bm .. ,,,....'wo 01 with <i~;'n" If> A""-'<i,""n dl;7.<'n;hip-wko ,"' ... 

di~p" <h<,j by,~ Cerm.,n mililory 10 «I<\dllct a <am]MignQ! holnbing> ;n too 

\)nilo>d.St.lI,,,,, only,n 1>0 ~"p",,;:d ~it..,. """ or Ih." m"" ..... 'cho"j ""' to tho'> FIll t<;I 

"",~. I til<- plot. !loth "",,,,, S""c raU!d d"", .,ale",,,,,'" (m", II", ",,,m. 10 Ih .. f't'/o>ct 

liIal an An","",", "I,o t>.,,,,,,,,,,.,, fIl"m t...r of u,., ....,..mv' ~ ann<d ron' ... JUrin!! a 

,,",h.~ 'l'I righ' t<;I h> ''''''<'<1 diff ..... nlly lh;,noiho-r<'l'('my«<ldi<",- I" ",T",rilo (~ 

Ninl~ Cirm;' d,'C;'im)appUcd Ihat nL'" in .mn,,;n& Iha';1 wa~ ~lylawfllj !O 

hold T~tt,!O "> a I'()\V. iInd c.x porI_ Q"iri~ (a Stop"'''''' CL)Un ~'i<?<JJ no, ()<11y 

-I-'iJ Ih~ .. ,,,,," bul"",,, ~pprm',.J r~lion by mllll~'1' ,,-, rni~ fN"!;o<llh d", 

dtiZo'ru _,,><I r.:In<itlzens "m""ll tt.. c,'pltJ"'(! c.n ... on """OIeurs. 

No! .11 ~ .n" ~ rI"," '-01" hoWN"'_ C"",iJ('I" lho> f~f mf 6 ('._ £> ".110 MilliS.". 

"'hidtinvtllw", evc ... l< ,h,rinll l""A" ... tic:", (:ivU lI'.r. MiIUII"".md otn.".".,..., 

,.Iwn inu, ",,,,OOy by 'nUit"'Y ."tkonl, ... in hld,"M,.n:! ''''''II1"lly p.".',ml<:<\ ~y 
13 

milil.,ry !,'Unm ... i"" ror plotting II, ... iu ~nn~ ,,,,d u." tn.,m II, b""k pri""'",,,,, ""I 

<1/" lWolrhy row r'''''I',n.",,'';ned by 'N> UN"". Thr.s.,p.""",C~u" "'!'fM,oly 

hI-!,J lhi>' ~IiUi8~n Mou!d nnl no".., k>m <"bjo,.:I,..) 1,,1,",,* ""''''''1'»0 ""-'C." .... "" 

W~",<l1 ... 1d 10 b" f"Irt ,,f,n..Cnnf,,,lcor.lIe """"" loms,,,,d """""'" In. <;yjUa" 

""If!> WI"" "'ill nf"-'" ",,<I r"n{",io<>h,!\ '" Ind'a, .. ~I Iho, ,jo,,.,. 

'lhe 1 ..... 1><>1 ....... n Mill,!:,," Dr'I ",,"' h • .." j,.tnJ T,',~II,,~n<l Q"M>J. ,., u". Nhr-r." 

rI~.,r • ..,,,>UgI~ !""' ....... who ...... po" "I lho 1It'!1li!d 1o",," ,,( lhi: .""' ~ .luting M 

~nTll>d mnnkl ;""no, ,~Ii{""...:l ftom 9.ili,"ty .tel",,", (0' lrom r~""' lon by 

mi i~1!J' ('(Omm",i"" in '''''''''''nl ",f. w"'<ri ...... ,II~~lion) .jmpl~by vln,,~,,! 

b<.~ng u,s. <:in",,,,,,, ~ III<> I""'«' ;,; )"~ 1M" "I,n., "'''''''y'$ """,-..:I Inn. ..... 

how",wr, milil"'" d<~'-"'ti<l<1 '" tri.1 u; """ ,'" npti<>n if Q.di",,,y d',Ui.n '''',n, 

rem.in Of',<\, Th"'hu> t>n.",,,,~om pI'<)YW",ky "",'~~I for und~"'lmJin8 1""',. 

9/11 ,J""~",,, ",~"rdi,,~ u,;, """"i""io,,,,I,,y "I mllilary ~"M,lim (,or U.s. ,;;1;1~"', 

Ilu. Ih~ ... !!"l >'('<vnd iml"'''''''' ~"''''''n' It'~;d".., .. ",.-II, in tN· o;<W1'~' '!11lI1)' 

~;wn ronltid ~" Wtl • ..-.der"~or,,f """"K~,I •• JtIl""iL'lim 'OU"" fo,<,>" UIl' 

,"',,,. h.w<>l<> ""n.Od r wl •• "". C<JI'II"- inl<>n"',J. for W ~w<1Ojivc h.~nch 10 

wldd d<1tm.. ",,~'Hhoritv ","r~I'I7""" in ,ho n"" )'10"1. Thi.w,,,. "",. ~u"" iQ n 

tt..t g.-nera l"d ,W""tim prj, ... I", till' rnid·21'ith ''''''tury, bu, il i<. P"'"'''I$ 'l'",o;li<lt1 

loo~y, lhan"" to ,hi, Nnn·o"lCtuion Ac' ,,f 1m (l~ U5C§400l(.)), whim I""vid",, 

dl.,1 <i'[7"n< "'OY "'" 1>0' il"'~ined Ollwr <lMn PU'"'H''' I" "~"".,. '11\;1,]"w .... 1"; ... " 

...... """",tI,·~ hmn<h ,tnJ ,,1I;m.>,l,>ty I"" «> '"~' 10 a4 """'w", ,., nuohnriz,'llnn 'n .. .., f""" IMI "'''l' not "",n.im J""",.loo .p lkilly "" .... throt ..... " .. th,>ri>H ,I 

implfdtly_,.l<l ,hll' C<l<Inlj a> sulf",.,." ,.''''''!')' "ulhrtntv l<> .. "lti$ll' d,., 1>:onlX"">!~nli.., ACI, 

Againo' Ihi. """kit",,,, """,idI,. It>< C''''''' ,-,I thr< f><ISl·9{11 fl"t'i<>J ;0; In..y ,,~.,~, In 

the de,,-,,,,iQ,-, nl ciliA ..... ..-.J of ad"-,,, 11<-""""'" "'r,ured wi.hin Ih<' United SI,""', 

n... '1 ...... ,"" of t'ti:l'.'-", dOI""\i",, ,''''"'' b .... fly a t th,o \'ery ",,, .... 1 '" Ih<' croniliCl in 

Algh""i.<I~'\ thank> ", Ihe<l>pi " .... ,,( "Am"'k"" T.lih;"," "'*'" Walbr Undh. 

Lindh ""', in milil~'Y "'-'loJy mit.,'I)" ,'nil .. """"id.l:<ly kJ in tho' circunlS(aoc",. 

Aller" tilll<'. ho"",w.1h.! Ilu<lt Ihlminislrlll ...... d""", In Ir • .".f .... turn into Ih~ 

<i.il),," o::ri",i""'j".d"'~l"li>' n in 1M Unil<'<l 51 ...... I .... r,N "f many .. ~I"I 

p"""""'ion:l in u-.., .M 1"""'; in"nlv~ penon< linked to the T~liNn end "' 

Q.-.NlI. Th,' m""~ pw. ....... oo . xpltlratim Qf whether Lindh """Id .imply"'''''' b<."'fll ,'d 100, the dl"'~ll"""f"""'ilili .. Ilko'o'ho"."",~"y fight...... 

A< il '"mood ""'. however, L;"dh .,"~ "", ,J>;. \lOly citi7~" f;gh'ing with ,he 

11111b.." y,~. EAAon !!.,n>d'haJ DN,n 110m in L<w.li<iM..l, anJ lho.,. I .. d" p/;,,,"bl. 

c~1i", 10 c:itiwJ>hip as I'I~U, '" rhi, mIT« out ~f1er hi,. c-~p!J.l'" in Algharu. ....... an.! 

,.f'~,hi, ".msf..,.", C,,""'~"' .. "" .. A, ,11., I"'i"~ h~ ,,'"as promp"y.nif'od '0 • 

.rulil~ry ""'ilily ... i!hin tNo Unit.sJ S"""". ~ lmliU LIDdh. J-IiIondi """;ti",,,j in 
14 

milil~!)'''';toJy , Hio; .ilu:Olion "', .. 'JUile.lmi'M~' u." ,o/Ga",AAo r"",ik, I,),., 

' "d;"n·Ahl"""'" I'OW dl<o_,d ~",,,·~)~~q,r"l"" <TUflolJy, H~,"dl did nol 

ronci.'do> In." hi> n.>d to..." p.>" of the ....... my'i """,'<II"""". 1I1Ii ", 'o'y. hl. n., ..... '" 

""1"" ~>tilion re.>d\eJ It.. SUP""""- Cuur~ whim in ::lUI "",ue<1 ~ .pll' <1M"""" 

A.~ 01",0\'\. 1-1,,,,,0.1; WAS ,,,,,i,'1'd In,,,,,,... P""""'" 'h"" ""h,,,II[',,. f.r """h'e<\. bll' 

on lhe olho>r "",,,,I. h" w~,, 1J inJ""" k> .,,,t>j. .... , In n,"ila,), do, .... ,i"" il thto 

gtw..-rttm<'l>l roukj r"""" he h;,d be..'1'1 ~ f~lin.,., r-tthl~r, .... it ~lleg;,J. 

'Ihee""" '" 11",,,,li W1-'nl ".,1 "fi" ""'Y I""",ruw'''' hoId~.o Ih~ p"rlicui,.r r""". 

P"""'nl;,,:j in Iha' """'. pl ;nly <<:In<O''''' ,h., <I~"" I,.,., po,!!""" mighl ~n .. , in 

<i .... It ... ~"""", 100&1 did nol "" clo"rly Irook 'f ..... ,/0 or Qt,;';n, n.... ill,'io:!' h,od """ 

"",h""""'ple !>do ... kh<.'m I lh." wry rnQmi.'nl: I .... ca,",ofJ""" I'.dill;,. 

I""" ';l<t1U~ w~, >In A,.,."-"",,, <itU-"n woo w.o11 ~broaJ t" jotn d", jihad mOYO'Im'r11 

prior 109/1!. HQi...mu .... I"'",~'" in M.,y 2002 "'''',,, hi: "' .. ~IT\..,' . .,.1 '" Q,''''1r C\>ll1 ing Ilil an In,,,m,,licn,ili fl.ighl. 'Jh;o gqvoem.menl .""",Ina'd W, he w .... "n ~I 

Q1l!d~ "g~nl p,,,,,rung .-.n .• ttild in the United 51.' ..... J'M'ibly ;"vniv"'l\" "dirty" 

li,~, ""lk,log"'.'! """,b. Hi' W,"", nil' .n·"",M ' .... mIDi",,1 ,"harS,,", hpw~"~r, l>ul 

"'lh<-rw~<IwJ,; on~ "m~'~";"1 wi"""",-" D~' ",...".an! (a r~",rif'<~"d """"Q'j' ~u!horily 10 u,;e It..- i"' ...... ,o(.""", ,"""" """"; .. ,")' kJ ",-,u", th.tl" ",ilne«" 

,'"il~b", 10 I<"~fy J>.-,(" ... "g,.m iu". <r '" Iri~I). No " ... ,pI.1in i~ ""'''' d.-,L,U ,,, 

,h""".,'1 «'0;11"", In' pn:>bll"" '''''IIO''"[1'1n1l>nl "'''.-.:1 wa,o ,,,,,,Il, kllQ'vl, ... il!',.,b()lu 

P"Jil!.>·" pl.l"' ...... n.""" .,1 ],..,,1 in par! rn d", "'.'I'.-;".,...,,,,d highly ,1 ..... ;r;, ... Iin'~rm~"I~'" "f" ""fM,aie .'''I''''''al ., o,..,.J;, """nM. With <rin~"'" pn.....",rim 

,,'" pl~u.. bl~ (or til;, IIm.l bo;i,,~ .ni:! Ihe ch:k lirking on I"" viMllily of ,n.,,~ri"'· 

,,·11 .... _ ""'<'<IIian, 11;.;0 Bu<hadrnini<!raUnn "' .... ,",,~lIy "1" .. 1 In <hilt 1',~li 1i> ir11~ 

mllil.,!)' ",,,to.ty. I~"""< ~tig"'ir"'. ""' '''''?ri<ing!y. folio",,,,, 1r.,!\l;Ifli'r, 

i'.>dllllt'.rn .... c..,.."y n~rnbO:d Ihe Q<iirin ~rio, in 1n.1 he w"," ""iJ tQI'otl;ln 

"&"" or W ..... my ",iWh.1d L-n,erod ''''' Unitru SI",,,,'u""pli'iou~ly In an 

't;oml"lor~"y",,' booo,,~intl"- I, .,h;olwl e"'"",,'l',,( M:1Ii.,!,m oow",""". in 111." 

,h." I'.-" lilk, w.", nm .'Lell'--.J IQ r... ~ ""Idi« in oVly"'11 <>f "-"""{lnU.e<I drrn",1 fo""". 

bu, "" .... ' wos ,>;<rt nf" d~nJ"'Il"" terrnriM ",,""ork. r",,'1<'11'O<i'" ",-~",<>rIt ,,.,.. 

''''' """'''y in the """'," '~,ntli" , <>f """""" whi."h i< why rn..,y \',,,,,,'<1 IIw. 

~I "'i"" It>. di ... "" "'1"-"iofQuiyin. I'hi$ .... 'Je '"""'" I" the n"'l d;,;lrict iuJg~ 10 

"","I",,, u... m~tI"'. '" .>ny ral~, !{eIyi"l';1)<'l Quin".....J di<IintI,ti.,;hi%lt Au/!, ..... ". 

r" "' ,.~AI"'n\I:Y Ct,>;:r-d ~lim.",' ~ "",0.1 in f'NobJ/u<:f ,d. N",,,,,,,,, iI,}loSt 

lh." I'.ldilb "' .... d~ ... in,--blo; in I"""r)", "~ I' ...... J)' ...,,,,,ing I"" It<go,m,enl In.! hi> 

cilizenship tmmuni&J I\im .. ,hnttth .,It;o i~11n5 th~, r~Jw" be .110"",J '0 

d"'I""8~ lb. 10<1".1 1>.-.,,,,(0,,,,,, gmlln'''~'''''.cl;tim .. 1ht! s"."""j CI .... ,ilCn,," 

oi App"'3l<- ,.,y.,fl'«<l. "","y","",-. <ttt<lud'"j\ tn.1 lOT' """.l;o;olll~idd ""ph'''' like 

P, .. hUrl, the N""·n."..nti",, AI.' would noi l.... "",,,fled withoul • dt·;,r~I; 't""'~nl 
15 

{",m 0l1\li:""" 0111. inl""'j,., for IhilAUMF ", rmvid~ d;,j""."", ,,,,Ihmilyov.-r 

nl",,'n.'. 

n... "rlS" w~, "'" I ... th<>S"p""""CD"fI 10"'''10.> tho> m~".r. l>ulll'ling'~"kkly gol 

<n"'l'lic.~lffi. fo", "f ,'''' " .. lie". too\; Ih<o [""'Si'inn ,,,,, P.dill. w ... "'" ""bj<.~ It> 

d~~'ion. I'iw. h:r,,,,,'~. ,,~Ihl,..JdjoJsml'nt on the mer;t~;" {,,,"Ot offQru";nS <lf1 

"pron.~'''ral ""V" TI'I<> po:.Hrn., tl,.,. ... !d, .<h<>t.1d "" .. , t>wn lIIig.,,"'-' in Il'1<o 1"".,...1 

",,,n i"s<,,,'I'I£;,1I,,I,,,,,...,d in the F<> .. ,th 01"<"" Co"".01 ApP""I •• 0''( in N~w 

yo,k..nJ '" 1h<oSi;..""" Circuit. 

NOIIl'ilruMnding tho SuP<""" CIK"h,....",ing 01 u,..~J ("in.l"r~ nJinj;, il 

W,," d,;" {roo, II'Iio """"''''P'''''''''''''" H"mJi d;od.ion 11'1.,( PI'" of Ii><: fl,.., jll'"'''' in 

f'odiJl~ m¥,y .'m<I<'I "''11~\nly w"uld ~id~ wilh , ,,><Iil,,, on the T(l<>riKJu>,I"" 

s.:;d~, ,ti""",,,,,,, jn tI","<ii, argtoin8 Ih. .. ,,,,,ion>hould "'" b,:,~v~ l;,ble {or U.s-. 

nl ..... n.' ~v"" in 'hi- ~""">r <in:llm.~"",.,. Hu'mli """",,'!Pol. It Ihll_' "PI"""<'d eJl"\ly., 

nW I ..... 01 li"",.U>d p....,....,d" ..... !?<olD1\!" m.jooity "I I"" COW' wQ,,1<l Md th." 

de' ''''tion un<J~r tho, AUMPw .... nil, "'·~~'bl~ {<If US. oilium,,"!,h'''''' In..iJ,the iJn".'" 5"", ... 

w~ n<'w:r"'"", ",It who" would ""'PI""', hr»> ... v ..... Poldil'" I""'·~U~ "!pinon 

....... .....t 10 ~ di .. ri<1 ",d8" On S<lollh ('~ ... I""', I1nd 'h"n ho, bcio", !hi' Fourth 

Ci,,,,i, b.t"'-'.! ~ ~ ""'" ar-gum<'nl: th.>, r .diIL, w",,,,,,.ctly lih 11"n.Ji On th,t( to. 

II.-.d N>rtlt' "nn> OI"n., AfSIl..-. b,ltlJ"f,elJ ;" I~(e '2IX)]. bul ~impl)" had b""" lurkie, 

",remain"'j! r ..... "ntil2002. AI any "'1<'. u...MX' <lop "'~. t"-'Supr""w Court. 

agotin, and ,v,"","IlI''''"P' '<' of <Ide.' for thl- g~wm""'nl . M""",-o",.,,., .. ~ ... Ito:Jj"V" 

lilt. p"'''pK' ""1''', .... why <he Il, o;h "dmini.<te"ri",,~, th~, .'a!!" 1rnn..,.'<I.....:i 

I'~di~a b;,d 1<\ ';-vili.., ,,";/OOy __ "'''''''' hio I",<'d rrlminitllri:1l ., Ions WI. PaJilr.. 

w~. p""",,,,,,,,.;! in """,,,II ""'", in FI",i,!;, ,., m"rg~ ...-1"';"8 In No; "",-9/11 

", .. duct (gQing oDroad in 1-001"'" t1 joiJ1ing '"" jihad 'M'·"''''''''. in clf'd~ w.-". 

ct>IIvi<IOO .. ,nd is "''''' ~rvi'\!l" pri~"""""""", 

Th" ' ''''' t1 the 1',><IiIL. (il;&"i"" dill not ,-,nd the tlpp<lTlll"ily for "",el> 10 .tRlsg'" 

wtlh In.- 'l''''''ir;>n of ,j,'"'''' ir.>n .,u\hori'y ill lho Uni,,,j :)1."",- Th .... ". ..... ""'! n'hor 

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Kanl.lIt al_M.m. A. '" 1' • .Jilla· """,,. tk gowmmen( r,,,,,,.,..,..r d~ili.-.,au"">I'i""" 

I" d,·,.in at \I~rri .• I.,r «>n<IIIdm& th~, ho ",i(..l>' br "'1 .1 Q...."'" ~g,,,,!. A,. i" 

I' ill~· ~a"" 11 ''''' ''~lIy mo.....J him in to milil",),"-hlooy.And as in 1'.,dilJ.-.·. 

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"",;den~ "'_!\'I~ni h,1<I l'ifth Amend"",,,, ,ign,,, th~t tho.e 'W"ot. p""-il o.l<!<.l 

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p;uh ""'" "M')in. u"., M""""""""'-""'" th<\OI"' ~ admini;'"tioo··Ir.Irt.<forrc'\l · 

M~rri 10 It", d"ilian .,.i011n;ol jU.'li",s}"I~"', ,nooting ,he ""W' "no;! ","ving Ih~ 

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11~,"· h.,. """n """,,,W Co_ ni d",,,,,,,lk ,,,il;l;<ry ""~1nl;'Jn-wl",Iho" j''''Qlvirtg 

''ilium or r")'Hili"'-'n.''''';'''''-I~o.."", fT't)l" the "'''Iy ye .... of p<ISt·9!11 

ro<"""'~m>ri<m. mo, .my rI .• ri(~'.lion ni I"" 1<1g.~ '1'k."'lirn, Ih,,, W 

a(o..,m .. "IIo",.J """'" e.,i.oo. 

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"",,,lion ,If d~liedel""'i<>n in I"" cttUl'§e1)( cr.fling th" 1\:.li"",,1 De("""" 

i\ "l hnri;o.lI~'" Act Jf>r f "",,1 """e 2012. An ;"il;,,1 d",(1 01 IhM bill n",~,in<d • 

d.n, .. ' t~1 ,.mviJ.:<I fnTd~"',";"" . ' ''l''Irit)' 1I.>",'~nd IQrili"""" ,nd 'I>QINm;; 

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on I"" 'I,..".lion ni ~ti" ""il ';l~'" 1"''''''lioo. 

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Mr. Engel, welcome. 

TESTIMONY OF STEVEN A. ENGEL, PARTNER, DECHERT, LLP 

Mr. ENGEL. Thank you. Chairman Goodlatte, Ranking Member 

Conyers and Members of the Committee—— 

Mr. GOODLATTE. If you want to pull that microphone closer and 

be sure it is turned on. 

Mr. ENGEL. No, I have a better light. Thank you, Mr. Chairman, 

and thank the Members of the Committee for the opportunity to 

appear here today. 
22 

For more than 10 years, the United States has been engaged in 

an armed conflict against al-Qaeda, the Taliban and associated 

forces. That conflict, while centered outside our borders, has not 

been limited to external threats. To the contrary, on September 11, 

al-Qaeda proved that it had the military capability to inflict an attack on our homeland as devastating as anything we had experienced before. The war on terror presents special issues when it 

comes to the rights secured to U.S.—United States citizens. With 

the nature of the enemy less defined and the enemy set on attacking on our homeland, the war on terror requires that the government work to detect and stop terrorist plots at home. 

The means by which we seek to stop such threats and the rights 

of those, including American citizens detained on our soil, pose special challenges to ensure that we protect the constitutional rights 

of Americans at the same time as we protect their lives. Indeed, 

the topic of today’s hearing is hardly theoretical. 

Just 1 month ago, we saw that the domestic threat posed by alQaeda and its idealogical allies remains very real. On April 15, 

2013, two American citizens committed a terrorist attack in Boston 

that claimed the lives of three people and seriously injured hundreds more. In the manhunt that followed, those same individuals 

murdered a police officer, they critically injured another and apparently were planning to commit another terrorist attack had they 

not been stopped. The City of Boston, as we all know, was shut 

down for nearly 2 days. 

The Boston Marathon attack makes the topic of today’s hearing 

quite timely. The apprehension of the second bomber, Dzohkar 

Tsarnaev, raised questions about whether he should have been detained by civilian law enforcement or transferred to military custody. It also raised questions about what rights Mr. Tsarnaev had 

while in police custody, including whether and when he should 

have received Miranda warnings. 

Let me say a word here with respect to Mr. Tsarnaev’s detention. 

The Supreme Court has made clear that a U.S. citizen who joins 

up with a foreign enemy may be detained in military custody. In 

the war on terror, the Supreme Court specifically upheld the military detention of a U.S. citizen captured in Afghanistan. During 

World War II, the court held that an American citizen arrested 

within our borders likewise could be held and prosecuted in military custody. The fact that an enemy combatant could also be prosecuted in the civilian justice system is not a legal reason why he 

may not also be subject to military detention. 

Of course, as the Chairman noted, that citizen would have a full 

right to the writ of habeas corpus, which is the fundamental bulwark against arbitrary detention. Now, whether Mr. Tsarnaev was 

in fact an enemy combatant, of course, is a separate question. 

Based on the publicly available information, there is certainly reason to doubt that Mr. Tsarnaev had joined an enemy force as opposed simply to have taken inspiration from al-Qaeda and its 

idealogical adherence. While Mr. Tsarnaev thus may appropriately 

have been treated as a criminal suspect, the Boston marathon case 

is instructive because the facts will not have to change very much 

to lead to a very different conclusion. If like the German saboteurs 

in World War II, Mr. Tsarnaev had trained with the enemy and re-
23 

turned to our country to commit a terrorist act of war, then the 

President could well have ordered and held in military custody. 

With a few additional facts, such determination might also appear 

wise. What if Mr. Tsarnaev was part of a larger terrorist cell whose 

members remained at large? What if Mr. Tsarnaev knew of the 

next plot, but the government needed the time to interrogate him 

before providing him with a lawyer? And what if government did 

not want to publicly disclose to our enemies the intelligence that 

they had relied upon in support of arresting him? Under those circumstances, the President might well determine that it is both lawful and necessary to transfer a terrorist to military custody. 

And again, if you believe that the September 11th attacks were 

an act of war, it is a remarkable position to think that if the hijackers were caught on the morning of September 11th, they could not 

be treated as enemy combatants and held in military custody. 

Now, in fighting the war on terror and in protecting our citizens, 

the United States must have the flexibility to use all of the tools 

at its disposal, including both its military and civilian capabilities. 

We have been successful over the past 10 years precisely because 

we have recognized that the war on terror is a problem that required both. We would serve neither the Constitution nor our national security well if we were to limit the lawful means at the 

President’s disposal in combatting these threats. 

Thank you, Chairman Goodlatte and Ranking Member Conyers, 

for the opportunity to appear here today. Ensuring that the government has struck the appropriate balance between liberty and security is certainly a matter worthy of this Committee’s attention, and 

I look forward to your questions. 

Mr. GOODLATTE. Thank you, Mr. Engel. 

[The prepared statement of Mr. Engel follows:] 
24 

United States House of Representatives, Committee on the Judiciary 

Hearing on "Protecting U.S. Citizens' Constitutional Rights 

During the War on Terror" 

May 22, 2013 

Statement of Steven A. Engel 

Former Deputy Assistant Attorney General 

Office of Legal Counsel 

U.S. Department of Justice 
25 

Statement of Steven A. Engell 

Former Deputy Assistant Attorney General, 

Office of Legal Counsel, U.S. Department of Justice 

May 22,2013 

Chairman Goodlatte, Ranking Member Conyers, and the Members of the 

Committee, thank you for the invitation to testify today on protecting U.S. citizens' 

constitutional rights during the War on Terror. 

For more than ten years now, the United States has been engaged in an anned 

conflict against Al Qaeda, the Taliban, and associated forces. That conflict, while 

centered outside our borders, has not been limited to external threats. To the contrary, on 

September 11th, Al Qaeda proved that it had the military capability to inflict an attack on 

our homeland as devastating as anything that our Nation had experienced before. 

While Al Qaeda clearly demonstrated that it represented a military threat to our 

country, the group and its associated forces are quite different from prior enemies. Al 

Qaeda is not a nation state, and its forces neither wear uniforms nor control territory in a 

conventional sense. Rather, AI Qaeda operates outside of, or in the shadows of, the laws 

of nation states, by exploiting power vacuums in failed states, making opportunistic 

alliances where available, and operating covertly within nations. As time has passed, the 

Steven A. Engel is a partner in the Washington, DC office of Dechert LLP. From 

February 2007 to January 2009, he served as a Deputy Assistant Attorney General in the 

Office of Legal Counsel of the Department ofJustice, and from June 2006 to January 

2009, as counsel in that office. Mr. Engel graduated Yale Law School, Cambridge 

University, and Harvard College slImma cum laude, and he served as a law clerk to 

Justice Anthony M. Kennedy of the Supreme Court of the United States and now-Chief 

Judge Alex Kozinski of the U. S. Court of Appeals for the Ninth Circuit Mr. Engel 

appears in his personal capacity, and not on behalf of the law firm or any of its clients. 

2 
26 

nature of Al Qaeda itself has changed, as the group has shifted, fragmented, and 

associated with regional groups outside of the Afghanistan and Pakistan region. 

The War on Terror, as this anned conflict has been described, is thus a very 

different kind of conflict from ones we have seen in the past. And the nature of that 

conflict-with an ill-defined enemy, operating covertly and opportunistically-has itself 

raised special issues when it comes to defining the laws of war that govern this conflicts. 

The traditional laws of war are premised upon a conventional armed cont1ict Of, in some 

cases, civil wars. The established legal framework provides clear answers to who may be 

detained, how they must be treated, and where they should be prosecuted. None of these 

questions is self-evident when it comes to the War on Terror. 

The War on Terror poses special issues as well when it comes to the rights 

secured to United States citizens under our Constitution. With the nature of the enemy 

less defined, and the enemy set on attacking our homeland, the War on Terror requires 

that the Government work to detect and stop terrorist plots at home. The means by which 

we seek to stop such threats, and the rights of those, including American citizens, 

detained on our soil pose special challenges to ensure that we protect the constitutional 

rights of Americans at the same time as we protect their lives. 

Indeed, the topic oftoday's hearing is hardly theoretical. Just one month ago, we 

saw that the domestic threat posed by AI Qaeda and its ideological adherents remains 

very real. On April 15,2013, two American citizens committed a heinous terrorist attack 

that claimed the lives of three people and seriously injured another 264. In the manhunt 

that followed, those same individuals murdered a police officer, critically injured another, 

and apparently, were planning to commit another terrorist attack, had they not been 

3 
27 

stopped. The city of Boston was paralyzed for nearly 48 hours. And the apprehension of 

the second bomber raised questions about how he should be detained, what rights he had 

as an American citizen, and whether our Government had done all that it could to ensure 

that we had obtained the intelligence available to prevent another attack. 

These issues make the topic oftoday's hearing quite timely. In fighting the War 

on Terror, and in protecting our citizens, the United States must have the flexibility to use 

all of the tools at its disposal, including both its military and civilian capabilities. We 

have been successful over the past ten years precisely because we have recognized that 

the terrorist problem is a problem to be dealt with both by civilian law enforcement and 

our military/intelligence services. It would be a mistake for us to tie one of our hands 

behind our back in the face of these threats. 

At the same time, when it comes to civil liberties, we must recognize that the 

choice between civilian and military means is not a choice between whether or not our 

Government will tight this cont1ict with the limits of the law. The rights secured by the 

Constitution are fixed and do not bend with the demands of the time. And the Supreme 

Court has made clear that the Constitution applies to constrain the actions both of civilian 

and military personnel. 

Let's take the example of the Dzohkar Tsarnaev, the Boston marathon bomber, 

who was captured after a citywide manhunt. According to press reports, Tsarnaev was 

apprehended by law enforcement, and then questioned by the Federal Bureau of 

Investigation for sixteen hours in his hospital bed based upon the public safety exemption 

to the Miranda warnings. It is unclear from press reports precisely who decided to end 

the questioning. What is clear, however, is that after those sixteen hours, Mr. Tsarnaev 

4 
28 

was read his Miranda rights, a lawyer was appointed for him, and he immediately 

stopped cooperating with the Government. 

The Boston Marathon case raises a number of questions when it comes to the 

detention and interrogation of enemy combatants in the present conflict. First, should 

Mr. Tsarnaev have been detained by civilian law enforcement at all, or should he have 

been declared an enemy combatant and transferred to military custody for detention and 

interrogation? Second, even if Mr. Tsarnaev was properly kept in civilian custody, were 

law enforcement officials obliged to read him his Miranda rights at the end of the 

sixteen-hour period? Let me try a few answers to those questions. 

Military v. Civilian Detention 

With respect to Mr. Tsarnaev's detention, the Supreme Court has made clear that 

a U.S. citizen who takes up arms against this country may be detained in military custody 

for the duration of wartime hostilities. Whether Mr. Tsamaev was in fact associated with 

an enemy force, of course, is a separate question. But in connection with the War on 

Terror, the Supreme Court has specifically upheld the military detention of a U.S. citizen 

who fought with the Taliban and was captured in Afghanistan. 5;ee Hamdi v. Rumsjeld, 

542 US. 507 (2004). During World War II, the Court went one step further and held that 

an American citizen arrested within our borders could likewise be transferred to military 

custody for detention and prosecution. See F.x parle Quirin, 317 US. 1 (1942). The fact 

that the enemy combatant could also be prosecuted in the civilian justice system is not a 

legal reason why he may not be detained by the military. 

While the Constitution permits the military detention of a US. citizen who takes 

up arms against the country, the Supreme Court in Hamdi made equally clear that the writ 

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29 

of habeas corpus permits American citizens to test the lawfulness of such detention. 

Accordingly, the controlling opinion in Hamdi held that the Due Process Clause of the 

Fifth Amendment guaranteed Hamdi the right to receive notice of the factual basis for his 

classification, a fair opportunity to rebut the government's factual assertions before an 

impartial federal judge. Hamdi, 542 U. S. at 532-33. Thus, even though the Constitution 

pennits the military detention of a citizen enemy combatant, it guarantees that the 

individual would have meaningful process to challenge that determination. 

It should also be emphasized that if an American citizen were captured in the 

United States as an enemy combatant, the President would be strongly inclined to bring 

criminal charges against that person and to try him for his crimes in an Article III federal 

court. Indeed, during the early years following September 11th, when the Nation's fear 

of the next attack was at its height, the United States detained only two American citizens 

in military custody (Yaser Hamdi and Jose Padilla), as well as one lawful penn anent 

resident (Ali Al-Marri). Two of those individuals were ultimately transferred into 

civilian custody and prosecuted before an Article III court. President Obama appears to 

have taken an even narrower view, apparently ruling out any military detentions for U.S. 

citizens. Accordingly, as a matter of sound public policy, the occasions for military 

detention of a U.S. citizen are likely to be exceedingly rare. 

In the case ofMr. Tsarnaev, I would caveat the analysis by noting that those of us 

outside the Government are somewhat hampered because we are limited to the facts, as 

recounted by the press. Taking that limitation as a given, however, the United States 

does appear to have acted appropriately in keeping Me Tsarnaev in civilian custody, 

rather than transferring him to military custody. For purposes of military detention, the 

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30 

question is whether Mr. Tsarnaev in fact was part ot~ or substantially supporting, Al 

Qaeda, the Taliban or associated forces, who were engaged in hostilities against the 

United States. The publicly available facts leave reason to doubt whether the Tsamaev 

brothers in fact were working with such an enemy force, as opposed simply to having 

been inspired by Al Qaeda and its ideological adherents. 

It is true that Mr. Tsarnaev's brother went abroad prior to the attacks, and his 

brother's travel certainly raises a question as to whether the Tsarnaevs had managed to 

link up with forces associated with Al Qaeda Yet when it comes to justifying the 

military detention of an American citizen, the burden must be on the Government, and 

the questions raised by such travel do not themselves rise to the level of evidence. Again, 

based on the public reports, the evidence appears to suggest that while the Tsamaevs 

were inspired by jihadist ideology, they in fact developed and carried out their terrorist 

plot on their own, rather than in coordination with, or at the direction of, the enemies of 

our country. 

While Mr. Tsamaev may appropriately have been treated as a criminal suspect, 

rather than an enemy combatant, the Boston Marathon case is instructive, because the 

facts would not have to change much to lead to a different conclusion. If, in fact, Mr. 

Tsamaev and his brother had left the United States to join up with AI Qaeda or its allies, 

and if they had returned to our country for the express purpose of committing a terrorist 

act of war against the United States, then the President might well have been justified in 

transferring Mr. Tsarnaev to military detention. 

We also would not have to posit too many additional facts before such a 

determination would appear to be a prudent choice. What if the Tsamaev brothers were 

7 
31 

members of a larger terrorist cell, whose other members remained at large? What if the 

Government suspected that l'v1r. Tsarnaev knew of their next plot but needed more time to 

interrogate him? What if the Government did not want to disclose to Mr. Tsarnaev, or to 

his confederates, the information that they had relied upon in support of his arrest for fear 

oftipping off the enemy? Under those circumstances, the President might well determine 

that it is both lawful and necessary to transfer a terrorist to military custody. Such 

instances may thankfully rare, but it is equally important that the United States should 

maintain the ilexibility to deal with such extraordinary circumstances as they arise. 

Miranda and Terrorist Interrogations 

The Boston Marathon case also raises a question as to whether the FBI acted 

appropriately in questioning Mr. Tsarnaev for sixteen hours and then reading him his 

Miranda rights. Some have contended that the FBI should have not questioned Mr. 

Tsarnaev at all, without reading him his Mirallda rights. Others have suggested that the 

sixteen-hour cutoiIwas too short, and that terminating the interrogation ran the risk of 

losing valuable intelligence, including information related to any foreign terrorist groups 

with whom the Tsarnaevs may have had contact, and the role of any confederates within 

the United States. 

Tn answering these questions, we need to distinguish between the FBI's ability to 

question Mr. Tsarnaev and the use to which his answers may be put in a future criminal 

trial. The Mirallda rule is not an independent requirement of our Constitution. Rather, it 

is an evidentiary rule that governs how statements may be used in a criminal trial. Under 

Miranda, the Government may only use custodial statements in a criminal trial, if the 

Miranda warnings were provided in advance of the interrogation. I( however, the FBI 

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32 

wished to interrogate Mr. Tsarnaev solely for the purpose of obtaining actionable 

intelligence about future terrorist attacks, then there was no duty to Mirandize him. 

Based on press reports, the Government appears to believe that it could 

interrogate Mr. Tsarnaev without providing him with the warnings, and still use his 

statements at trial, based upon the "public safety" exception to Miranda, which the 

Supreme Court recognized in New Yorkv. Quarles, 467 U.S. 649 (1984). In Quarles, the 

police apprehended an armed suspect in a grocery store, but discovered that his gun was 

no longer in its holster. The police asked the suspect, "where is the gun?" and he told 

them where he had stashed it. The Supreme Court held that the prosecutors could use 

Quarles's statement at all-even though he had not received Miranda warnings-the 

Supreme Court recognized a limited "public safety" exception that would allow the 

government to use custodial statements at trial, where the police's questions were 

"necessary to secure their own safety or the safety of the public," and were not "designed 

solely to elicit testimonial evidence from a suspect." Id. at 658. 

The custodial interrogation in Quarles was fleeting in time, and it was limited to 

the single question of the location of a loaded gun. Nonetheless, the Department of 

Justice has argued in recent years that Quarles may support the lengthier interrogation of 

terrorism suspects, where the questions go beyond simply an immediate threat, but are 

more generally motivated by the law enforcement interest in obtaining actionable 

intelligence in future terrorist plots. While the Department of Justice's position is not 

unreasonable, the argument has not been thoroughly tested in the courts, and it is an open 

question whether the Quarles exception may bear the weight that the Government wishes 

to place upon it. 

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33 

Whether the Government is right about Quarles or not, it is important to 

emphasize that the sole issue is not whether the Government may interrogate a terrorism 

suspect about terrorist networks and future plots, but whether the Government may use 

those statements at a future trial. Neither Miranda nor Quarfes places any limits upon 

police questioning when the sole interest is obtaining intelligence infonnation, and the 

Government does not need to use the statements at issue at the criminal trial. 

In the Boston Marathon case, it appears that the Department of Justice did not 

need much, if any, information for Mr. Tsarnaev's criminal trial. Mr. Tsarnaev was 

caught on video at the scene of the crime, he had confessed to at least one witness, his 

apartment apparently contained incriminating evidence, and he may even have left a 

written confession in the boat where he was apprehended. Thus, the purpose of the FBI's 

interrogation should have been to determine whether he had additional intelligence to 

provide as a means of preventing a future attack. In deciding whether the duration of his 

interrogation was appropriate, the appropriate measure should be whether law 

enforcement had detennined that, in their best judgment, they had obtained the 

infonnation needed from him, and not rules of criminal procedure designed solely for 

courtroom evidence. It remains unclear from the public account whether in fact the 

Department of Justice applied that rule to measure the duration of the interrogation in Mr. 

Tsarnaev's case. If they did not, there is a risk that valuable intelligence was lost. 

The Constitution gives the federal Government the power to protect American 

citizens, at the same time as it secures out most important civil liberties. Those rights 

apply during times of both war and peace. Ensuring that the Government has struck the 

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34 

appropriate balance is certainly a topic worthy of this Committee's attention. Thank you 

Chairman Goodlatte and Ranking Member Conyers for the opportunity to appear here 

today and T look forward to the Committee's questions. 

11 
35 

Mr. GOODLATTE. Ms. O’Connell. 

Ms. O’CONNELL. Thank you, Chairman Goodlatte, Ranking Member Conyers. 

TESTIMONY OF MARY ELLEN O’CONNELL, ROBERT AND MARION SHORT PROFESSOR OF LAW, UNIVERSITY OF NOTRE 

DAME LAW SCHOOL 

Mr. GOODLATTE. You may want to press that button on your 

phone—on your speaker there. 

Ms. O’CONNELL. You’d think a professor could learn the lesson 

you just taught my colleague. 

Anyway, Chairman Goodlatte and Ranking Member Conyers and 

Members of the Committee, thank you sincerely for this invitation 

to testify today on this critical issue of basic rights during armed 

conflict. 

I have been a student of this very topic since the 1981-1982 academic year in Cambridge, England, where I was a student earning 

my LLB in international law. I studied under the great judge, Sir 

Christopher of Greenwood, truly one of the leading experts on this 

topic, and I went on to spend the next 30 years studying exactly 

what the law of armed conflict requires and when it applies. 

It is true, as we have just heard, that the extraordinary situation 

of real armed conflict hostilities does change the rights to which 

people are entitled. Most importantly, with respect to our very 

lives, to our liberty and to the process which we are owed. These 

rights change according to the law of armed conflict, but the law 

of armed conflict also severely limits the situations in which these 

changes apply. The law of armed conflict applies in armed conflict, 

and the law, of course, has a definition of what counts as armed 

conflict so that we know when it is appropriate to shift these fundamental rights. 

The definition is a commonsense understanding that works very 

well in our system of nation states, which is only loosely organized 

and really depends on open and obvious rules that all can see and 

can mutually re-enforce within the community of states. 

So the definition of armed conflict within international law relies 

on two fundamental fact situations: There must be the presence of 

organized armed groups, and those armed groups must be engaged 

in situations of real fighting, of intense armed fighting. These facts 

are plain to see and they are plain to see with respect to Afghanistan today. That is where our serving men and women are actually 

engaged in encounters with armed insurgents seeking to overthrow 

President Karzai. In Afghanistan, our forces may kill enemy fighters without first attempting to detain them. Our soldiers may arrest or detain persons until the end of the hostilities in Afghanistan, and those persons may be held without trial. If they are accused of a crime, they may be put before military commissions. 

But ladies and gentlemen, the hostilities in Afghanistan for the 

United States will come to an end in 2014, and it is at that time 

that our right to pursue these particular privileges of armed conflict will also come to an end. How ironic, therefore, that certain 

people believe that these very rights apply within the United 

States and may even apply beyond 2014, and yet we see in the 
36 

United States the serious contrast with the situation in Afghanistan. 

We are not experiencing intense armed fighting on our streets 

among organized armed groups. No, we are experiencing something 

else that is also extremely challenging. We see, on our streets and 

in our cities, the challenge of terrorism, whether of the Timothy 

McVeigh and Tsarnaev brothers type or of the Richard Reid and 

Abdulmutallab type, but FBI, local police, Federal and State prosecutors, Article III and State courts are as a matter of law and 

practice the right bodies to respond to this ongoing threat. 

I see in Professor Chesney’s and Mr. Wittes’ proposal and the in 

the comments of Mr. Engel a movement generally away from this 

wartime attempt or this attempt to pursue the privileges of armed 

conflict on the territory of the United States. We see this in other 

indications as well. 

Today’s New York Times reports that drone strikes outside of 

armed conflict zones are declining dramatically. We are also seeing 

no further prisoners being sent to Guantanamo. The vast amount 

of trials against terror suspects, 200-plus trials, have been in the 

United States in regular courts since 9/11. Indeed, the very first asserted wartime privilege after 9/11 to come to an end came to an 

end already in 2003, and that, Mr. Chairman, was the attempt to 

do search and seizure of cargo ships on the high seas. Yes, during 

wartime, such search and seizure may continue, but not in peacetime, and the U.S. gave that up in 2003, persuaded by our closest 

ally in so many of these situations, the United Kingdom. 

In conclusion, I would emphasize that the United Kingdom and 

our other close allies have never accepted this global war on terror. 

We need to get right on the law so that we can again have the close 

cooperation with these allies. That’s how we will overcome terrorism in the world today. Thank you. 

Mr. GOODLATTE. Well, thank you, Ms. O’Connell. 

[The prepared statement of Ms. O’Connell follows:] 
37 

The Constitutional and Human Right to Ufe 

in War and Peace 

Testimony of 

MaryEllen O'Connell 

Robert and Marion Short Professor of Law and Research Professor of International 

Di spute Resolution Kroc Institute 

University of Notre Dame 

for the 

IIouse Judiciary Committee 

Hearing on Protecting U.S. Citizens' Constitutional Rights 

During the War on Terrorism 

May 22, 2013 
38 

Introduction 

Members of Congress, ladies and gentlemen, thank you for this opportunity to 

help clarify the law regarding fundamental rights in the war on terror. The basic 

Constilutional and human rights to life, to liberty, and to a fair trial have all been 

implicated by America's response to 9/11. My focus today is on the first of these basic 

rights, the right to life and on the use of armed unmanned aerial vehicles, known as 

drones, to launch missile attacks and to drop bombs far from the field of battle. 

I am Professor Mary Ellen O'Connell of the University of Notre Dame. I hold 

degrees in history, international relations, and law from institutions including 

Northwestern University, Columbia, the London School of Economics, and Cambridge 

University. I have also served as a civilian employee of the United States Department of 

Defense, teaching at the George C. Marshall Center in Southern Germany for a number 

of years. I have taught, written, and chaired committees on the subject of this hearing for 

almost 25 years. Work in this area requires extensive education not just in U.S. law but 

also in the international law on the use of force, international human rights law and 

international law generally. Unfortunately, very few persons have these qualifications in 

the United States today Even fewer are able to speak from the privileged position of an 

independent scholar. 

I hold such a position thanks in large part to the longtime president of the 

University of Notre Dame, Father Theodore Hesburgh. T find it auspicious that Twill 

present testimony today, on the very day that Father Ted will be honored at a reception 

this afternoon in the Rayburn Room. Father Ted has been a pillar of civil and human 

rights for well over a half century, and I have been honored to use him as a sounding 

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39 

board myself on complex issues implicating law, morality and the efficient use of 

military force, including drone use. 

The Right to Life 

All human beings possess the right to life, which is protected in the riflh 

Amendment to the United States Constitution: "No person shall be. deprived of life, 

liberty, or property, without due process of law." It is also protected in Article 6 to the 

International Civil and Political Rights Covenant (TCCPR) to which the United States is a 

party: "Every human being has the inherent right to life. This right shall be protected by 

law. No one shall be arbitrarily deprived of his life." As both the Fifth Amendment and 

A11icle 6 indicate, some deplivation of life may be justified under the law. The 

justifications are found in two different legal categories: one category pertains to the 

ordinary situation of peacetime and the other to the exceptional and extraordinary 

situation of war or armed conflict. 

In peacetime, the state may only take a human life when "absolutely necessary in 

the defence of persons from unlawful violence.,,1 Police and other authorized agents of 

the state may resort to lethal force to save a life immediately or to apprehend a highly 

dangerous individual who resists arrest. The United Nations Basic Principles for the Use 

of Force and Firearms by Law Enforcement Officials (UN Basic Principles), which are 

widely adopted by police throughout the world, provide in Article 9' 

Law enforcement officials shall not use firearms against persons except in 

self-defence or defence of others against the imminent threat of death or 

serious injury, to prevent the perpetration of a particularly serious crime 

involving grave threat to life, to arrest a person presenting such a danger 

and resisting their authority, or to prevent his or her escape, and only when 

less extreme means are insufficient to achieve these objectives. In any 

1 McCann & Others v United Kingdom, Series A no 324. App no 1 g9g4/91 (1995) 

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40 

event, intentional lethal use of firearms may only be made when strictly 

unavoidable in order to protect life. 2 

On the battlefield, the rules are difJerent. The members of the regular armed 

forces of a state and certain militias are defined by the 1949 Geneva Conventions as 

having the "combatant's privilege." During an anned conflict, troops will not face 

criminal charges for the taking of the lives of enemy fighters so long as they respect the 

law of anned conflict, in particular, that they respect the principles of distinction, 

necessity, proportionality and humanity. Distinction may be the most important of these 

principles. It requires that civilians never be intentionally targeted, unless and only for 

such time as the civilian takes direct part in armed conflict hostilities. The International 

Committee of the Red Cross has introduced a new category of persons involved in armed 

conflict, someone who is in a "continuous combat function." Such a person may be 

targeted even when not directly participating in hostilities so long as targeting the person 

is consistent with the principle of necessity. Again, attacking persons in a continuous 

combat function is lawful only during armed conflict. 

The critical concepts to the proper functioning of the rule respecting the right to 

life are, therefore, either I.) the existence of armed conflict or 2.) the right to resort to 

military force. In all other situations, peacetime policing rules prevail, as described 

above. 

2 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of 

Offenders. Ha v ana, Cuba, 27 August to 7 September 1990. 

<hup://www20hchr.org/english/law/fireanns.htm>. 

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41 

Armed ConfTiel 

We must look to international law for the definition of armed confiict, given that 

the concept refers to the use of major military force either among states or within a state 

such that the Geneva Conventions and other international law governing the conduct of 

anned confiict applies. The definition of armed confiict is found in customary 

international law. It is based on the objective facts of fighting, not declarations. The 

legal significance in international law of declarations faded away with the adoption of the 

United Nations Charter in 1945. "War" as a technical, legal tenn fell out of use. It was 

replaced by a broader term, "armed conflict." The Charter in Article 2(4) prohibits all 

uses of force---war and lesser actions-except in self-defense to an anned attack or as 

mandated by the Security Council. Following the adoption of the Charter, treaties 

relevant to war, such as the Geneva Conventions of 1949 substituted the tenn "armed 

conflict" for "war." "War" ministries became "defense" ministries. States engaging in 

anned conflict rarely declared war What mattered after 1945 was actual fighting, not 

19th century fonnalities that recognized a legal state of war in the absence of any use of 

military force. We still use the tenn "war" to refer to any serious armed conflict. But 

indicative of the fact that "war" is no longer the significant legal term it once was, the 

United States fought a war on poverty and a war on drugs. 

According to a study by the International Law Association's Committee on the 

Use of Force that T chaired for five years, international law defines armed conflict as 

always having at least two minimum characteristics: 1.) the presence of organized armed 

3 TIns section draws [rom the article, Mary Ellen O'Connell. The Choice oj Low Against Terrorism, 4 1. 

NAT'L SEC. L. & PoCy 343 (2010). 

5 
42 

groups that are 2) engaged in intense inter-group fighting4 The fighting or hostilities of 

an armed conflict occurs within limited zones, referred to as combat zones, theaters of 

operation, or similar terms. It is only in such zones that killing enemy combatants or 

those taking a direct part in hostilities is permissible. 

Because armed conflict requires a certain intensity of fighting, the isolated 

terrorist attack, regardless of how serious the consequences, is not an armed conflict. It 

may amount to an armed attack that justifies the right to resort to armed force in selfdefense. This possibility is discussed in the next section. Terrorism is, therefore, 

generally categorized as a crime, although in some circumstances it may be carried out so 

continuously as to be the equivalent of the fighting of an armed conflict. Terrorism is 

widely defmed as the use of politically motivated violence against the civilian population 

to intimidate or cause fear.' The Supreme Court of Israel found in 2006 that Israel was 

engaged in a "continuous state of armed conflict" with various "terrorist organizations" 

due to the "unceasing, continuous, and murderous barrage of attacks." 6 The Court 

described a situation that meets the definition of organized armed groups engaged in 

intense fighting-the attacks and responses are direct and constant enough to constitute 

fighting. The single, isolated act of terrorism, however, is consistently treated by states 

as crime, not armed conflict. Members of al Qaeda or other terrorist groups are active in 

Canada, France, Germany, Indonesia, Mali, Morocco, Saudi Arabia, Spain, the United 

, International Law Association. Final Report of/he Use of Force Committee, The Meaning of.lrmed 

Conflict in Intemational Lm1! 20 I 0). available online at 11ltglil'ODyjl~: 

generally, SETH G. JOKES A'!D MARTI'! C. LIRICKI. How TERRORIST GROIJPS EKD, LESSOKS FOR 

COl'NTERJI\G AL QA'IDA (2008), available at hup://www.rand.org/pubs/monographs/2008/RAND_MG741-

I.pdf 

6 HCJ 769/02. The Public Committee Against Torture in Israel v. Israel, [2006] (2) IsrLR 459, ~ 16 (Dec 

14.2006). See also The Wall Case. supra note 45 

6 
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Kingdom, Yemen, Kenya, Uganda, and elsewhere. Still, these countries do not consider 

themselves in an armed conilict with al Qaeda As Judge Christopher Greenwood of the 

International Court of Justice has concluded: 

In the language of international law there is no basis for speaking of a war 

on Al-Qaeda or any other terrorist group, for such a group cannot be a 

belligerent, it is merely a band of criminals, and to treat it as anything else 

risks distorting the law while giving that group a status which to some 

implies a degree oflegitimacy7 

One U.S. Supreme Court decision seems to be commonly misread as supporting 

the possibility of a worldwide "armed conflict against al Qaeda" or other terrorist 

organizations even in the absence of continuous attacks. In Hamdan v. Rums/eld, 548 

U.S. 557 (2006), the Supreme Court found the Bush Administration's special military 

commissions for trials at Guant{lllamo Bay unconstitutional. The Court ruled that while 

the president had the right to create military commissions, they had to comply with a 

federal statute governing the matter. The federal statute in question permitted the 

creation of military commissions that complied with the laws of war. For purposes of 

testing the compliance of the Guant{lllamo commissions with the law of war, the Court 

accepted the Bush administration's characterization of being in a "non-international 

armed conflict with al-Qaeda" The Court found that Common Article 3 of the 1949 

Geneva Conventions covers even that purported conflict. It further found that the 

Guant{lllamo commissions did not comply with Common Article 3. The Supreme Court 

had only to find one plausible example of a violation of the laws of war to strike down 

Christopher Greenwood, War, Terrorism and international Lml', 56 CURRo LEG. PROBS. 505,529 (2004) 

7 
44 

the commissions. It did not find that the United States actually is in a worldwide-armed 

conflict with al Qaeda. It could not make such a finding, as there is no such conflictS 

The Hamdan decision, as well as many other decisions of the United States 

Supreme Court, the Israeli Supreme Court, and courts around the world have had to deal 

with the legal question of what constitutes an armed conflict They deal with facts and 

law, not the assertions of political branches of government 

Se(f-Defense 

If drone attacks are not being carried out in the context of armed conflict 

hostilities, the president's lawyers have suggested that the killings are nevertheless in 

lawful self-defense. The Bush administration never developed a persuasive argument as 

to why the US. could use force on the basis of self-defense far from the state legally 

responsible for the 9111 attacks, namely, Afghanistan. In October 2001, the US. and 

UK took the position that the Taliban government of Afghanistan was responsible for al 

Qaeda so that under the law governing resort to armed force (the jus ad bellum) they had 

the right to use force against that sovereign state. The US. never argued that other states 

might also be responsible for the 9/11 attacks and has no right under the jus ad bellum to 

use force against them as was used against Afghanistan. 

The armed conflict in self-defense in Afghanistan ended in 2002 when Hamid 

Karzai became Afghanistan's leader following a loya jurga of prominent Afghans who 

selected him 9 Today, the US. and other international forces are in Afghanistan at the 

invitation of President Karzai in the attempt to repress an insurrection. Thus, attacking or 

8 Hamdan v. Rumsfeld. 548 US 557,628-31 (2006) 

'Sec Prcsidenl IIamid Kanai, TIlL E1IUASSY or AI'GIIAI\ISTA'<. WASllll\lHO'< D.C .. 

http://www.embassyofafghanistan.org/presidenthtml (last visited July 20. 201 0) 

8 
45 

detaining members of al Qaeda or associates as a matter of the law of armed conilict must 

be connected with the Afghan insurgency. 

References by Bush and Obama administration officials to the right of selfdefense offer no justification for using force or exercising wartime privileges beyond 

Afghanistan. The former legal adviser to the State Department, Harold Koh in his now 

famous speech in March 2010 to the American Society of International Law setting out 

the Obama administration's legal justification for the use of force in self-defense began in 

the right place, the United Nations Charter. He then, however, mischaracterized what the 

law of self-defense permits. 10 

The right to use force in self-defense applies to inter-state uses of force. The law 

of self-defense was designed to allow a state to take necessary action against another state 

responsible for attacking the defending state, as in the case of the U. S. and u.K. attacking 

Afghanistan in response to 91 II. The law of self-defense is not designed for responding 

to the violent criminal actions of individuals or small groups. Article 51 of the Charter 

permits the use of force in self-defense if an armed attack occurs and permits collective 

self-defense if the state that has been attacked requests it. The Security Council may also 

authorize force in self-defense. 

Little or no authority exists for the right to exercise self-defense against an 

individual or a non-state actor with no ties to a state United Nations Charter Article 51 

permits self-defense if an armed attack occurs, but, even then, only until the Security 

Council takes "measures necessary to maintain international peace and security.")) The 

10 Harold Hongju Koh. The Obama ,1dminisrration and Imemationai Lmr. Annual Meeting ASIL, U.S 

DHAlU"ML'<T OJ' STATE (Mar. 25, 2010). hllp:l/www.slale.gov/sIl/releases/remarl.sI139119.hlm. 

11 U.N. Charter art. 51: Nothing in the present Charter shall impair the inherent right of individual or 

collective self-defence if an armed attack occurs against a member of the United Nations. until the Security 

9 
46 

International Court ofJustice (ICI), the chief judicial organ of the United Nations and the 

only court with general jurisdiction over states on matters of international law, has found 

that the Article 51 right of self-defense may only be exercised against a significant attack. 

The ICI has not ruled on anticipatory self-defense but by requiring a significant attack, 

the evidence of the nature of the attack must necessarily be of an attack that is at least 

underway if not completed. Moreover, the response in terms of a counter-attack may 

only be against the territory, planes, or ships of a state responsible for the initial 

significant attack. lfthe non-state actor's attack is not attributable to a state, force in selfdefense may not be exercised on any state's territory. 

Where a state is responsible for attacks, the lCI said in Nicaragua l2 and Oil 

Plat/ormsl3 that low level attacks or border incidents do not give rise to the right to use 

force in self-defense on the territory of the responsible state. The Ethiopia-Eritrea 

Arbitral Tribunal said much the same in the Jus Ad Bellum award. 14 Additionally, in the 

Nicaragua case and the Nuclear Weapons case, the lCI held that even where a state is 

responsible for a significant attack, there is no right to use force in self-defense if the use 

of force is not necessary to accomplish the purpose of defense and/or the purpose cannot 

be accomplished without a disproportionate cost in civilian lives and property. Necessity 

and proportionality are not expressly mentioned in the Charter, but according to the lCI 

"there is a 'specific rule whereby self-defence would warrant only measures which are 

Council has taken measures necessmJ to maintain international peace and security. Measures taken by 

members in the exercise of this right of self-defence shall be immediately reported to the Security Council 

and shall not in any way affect the 8uthority and responsibility of the Security Council under the present 

Charter LO take aL any time such action as it deems necessary in order to mainLain or restore international 

peace and security. 

12 Military and Paramilitary Activities (Niear v. US). 19S6 Ie.! 14,11195,230 (lIme 27) Ihereinafter 

n Oil Platforms (Iran v. US.), Judgment, 2003 I.e.J. 161. ,]61-64 (Nov. 6). 

l' Jus Ad BellulIl (ELh. v. Eri.l. ELhiopia Claims 1-8, Partial Award. ,]9-12 (Eri. ELh. Claims Comm'n 

2005), hup://www.pea-epa.org/upload/tlles/F1NAL%20ET%20JAB.pdf 

10 
47 

proportional to the armed attack and necessary to respond to it, a rule well established in 

customary international law.' This dual condition applies equally to Article 51 of the 

Charter, whatever the means of force employed.,,15 

Under these treaties, as well as customary international law rules and general 

principles, the United States has virtually no support for its claim to a right to detain or 

target persons not fighting in Afghanistan. The UN Special Rapporteur on extrajudicial, 

summary, or arbitrary executions found the 2002 strike in Yemen that killed six persons 

alleged to be associated with al Qaeda was an unlawful, extrajudicial killing. 16 This is 

the correct finding in the view of most states that simply do not accept targeted killing as 

justifiable under Article 51 in particular or international law in generaL 

The current rules on the use of force have developed over time in the light of the 

threat of terrorism and other significant violence in our world. The IC] has not indicated 

that the law is unclear. Most importantly, the current law on the use of force was 

thoroughly reviewed in 2003-05, following 9111 and the 2003 invasion of Iraq. United 

Nations members committed in September 2005 at the World Summit in New York to 

"strictly" abide by the lJN Charter and agreed, "that the relevant provisions of the Charter 

are sufficient to address the full range of threats to international peace and security." 17 

15 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 LC). 226, '1[41 Ouly 8). 

See also Nicaragua, supra note 25, '1[ 176; Oil Platfon11S, supra note 82, ']76. 

1(, Special Rapporteur on Extrajudicial, Summary. or Arbitrary Executions, Report of the Special 

Rapporleur, ."sma .!ahangir, Civil and Polilicai Righls. Including Ihe Ques/io", ojDisappearances and 

SUfl/malY "xeeulions, UN Doc. E/CNA!2003/1, , 17 -19 (Jan. 11.2001) Qlereinafter Report 011 

loxtrajudicial, SUlllmary, or clrbitrary fixecutions I 

17 2005 World Summit Outcome, GA Res. A/60IL.!. paras. 78-79 (Sept. 15,2005). available at 

llltp:!/www.globalr2p.org/media/1l1es/wsod_2005.pdf.This important document and other evidence of the 

current status ofthe law on self-defense are omitted in Theresa Reinold. Slate Weakness. Irregular 

Wmfare, and the Right to Self-J)~fen5e 1'ost-9/11, 105 AJiL 244 (2011). For an overview and assessment of 

the principal literature in English on the law ofsc1f-dcfense. sec Mary Ellen O'Connell, The Right of SelfDefense, OXHJRUBIULiOGRAPlllLS (Mar. 2012),01 

http://wwv •. oxfordbibliographies.com/view/documentiobo-97801 99796953/obo-9780199796953-

0028,Xml. 

11 
48 

No change was found to be necessary or desired, including by the United States under the 

leadership of our UN Ambassador, John Bolton. 

Killing Americllns 

The first targeted killing beyond a battlefield was in November 2002 in Yemen. 

Agents of the U.S. Central Intelligence Agency, not the U.S. military, conducted the 

operation. The agents were based in the tiny former French colony of Djibouti and 

apparently had that state's consent to conduct lethal operations from its territory. 

Yemen's authoritarian ruler Ali Abdullah Saleh was informed or consented as well. The 

operation consisted of an attack with Hellfire missiles on a passenger vehicle driving in a 

remote part of Yemen. The attack killed all six passengers in the vehicle, including a 23-

year old American from Lakawana, New York. IS We know this because CIA agents flew 

to the scene by helicopter within moments of the killing, repelled down to the ground, 

and took DNA samples from the persons killed. 19 

Targeted killings continued in Yemen but Saleh wanted them carried out with 

cruise missiles launched from ships or piloted jet aircraft-he wanted to be able to deny 

the U.S. was using military force in Yemen, that Yemen was doing this killing itself 

Yemen at the time, however, had no drones. As soon as pro-democracy groups 

challenged Saleh in 2010-2011, the U.S. returned to attacking with drones. The U.S. 

attacked multiple times in the first half of 2011 hoping to kill Anwar Al-Awlaki. 

Awlaki's father, represented by the ACLU and CCR, had petitioned a U.S. court to issue 

18 Doyle McManus .• 1 u.s. License to Kill, a New i'olicy i'ermirs rhe C.iA. to /]ssassinare l'errorists, and 

Officials Soya Yemen IIit Went Pelfcetly. Others Worry About ,Vext Time. LA T!1ILS. Jan. 11. 2003. at 

AI. 

19 DINA TF.\IPJ.E-RASTO'l. THE JIHAD NF.xTDoOR THF. LACKAWA'lNA SIX AND ROllGH JllSllCF. TN THE AGE 

OF TERROR 196-97 (Public Affairs. 2(07), 

12 
49 

a restraining order against the killing of his son. The court ruled the father did not have 

standing. Tn September 2011, the son was killed along with another American and two 

other men. Two weeks later, Awlaki's 16-year old son, 17-year old nephew, and a 

number other people were killed in another drone attack at a restaurant in Yemen. By 

now, the U.S. has killed more than 200 people in Yemen, including four more on May 

18. 

Conclusion 

President Obama will speak on May 23 at the National Defense University on the 

rules his administration has developed respecting killing with drones. As this testimony 

demonstrates, however, the United States and the world have rules with respect to the 

fundamental right to life firmly in place. They are the rules found in our Constitution of 

1789; in the United Nations Charter of 1945 and 2005, and in the Geneva Conventions of 

1949 and 1977. 

13 
50 

Mr. GOODLATTE. And I want to thank all of you for excellent testimony and raising several thought provoking issues here. 

I will say in recognition of the remarks of the Ranking Member 

and the gentleman from New York that I am very interested in 

this subject of to whom we should be guaranteeing constitutional 

rights, protections under our Bill of Rights. I’m glad we all agree 

that relates to United States citizens. I also would say that we 

might be closer together on the issue of permanent—lawful permanent residents in the United States. 

I would have to also say, however, that Mr. Engel makes a valid 

point with regard to the issue of incursions by people either illegally entering the United States as agents of al-Qaeda to exercise 

a military-like terrorist attack or even lawfully entering on a temporary basis for the purpose of doing that, similar to the original 

9/11 hijackers and the cause of that tragedy. 

And therefore, even though Ms. O’Connell makes a very good 

point that we are now more than 12 years after that attack, I share 

that concern. 

So, obviously, one of the issues that is probably beyond the scope 

of this hearing is, do we need a new authorization for use of military force? That would make an excellent discussion in its own 

right and some Members may choose to ask questions related to 

that. 

And also, if time permits, I’ll come back to talk about, with the 

witnesses, about the issue related to how wide this scope should be. 

But I do believe that, under certain circumstances, people who are 

not citizens of the United States would not enjoy these same types 

of constitutional protections, certainly not the full extent of them, 

in virtually any other country in the world because no country has 

as strong of protections for civil liberties as we have in this country. I would be concerned about a blanket provision for anybody apprehended in the United States, regardless of their status in the 

country. 

But I’d like to use my time now to focus on the issue that some 

of you raised with regard to the Boston Marathon bombing and 

particularly with the arrest of Dzohkar Tsarnaev, who, unlike his 

brother, was a naturalized United States citizen and was treated 

by the Administration through the Article III court system. I think 

that was the correct decision, but it also raised a problem that we 

see with the collision of two or three different Supreme Court decisions; one, obviously, the Miranda decision, providing for advising 

criminal suspects of their right to certain things, including counsel; 

secondly, decision of the courts that requires presentment of the 

charges within 48 hours; and thirdly, a decision that says that 

there are exigent circumstances under which the individual can be 

questioned by the FBI or other law enforcement in order to determine some of the emergency type things that Mr. Engel identified 

in his testimony, namely, are there other participants in the conspiracy? Are there other targets that are imminent? Are there 

other bombs out there to be located? And obviously, that process 

was ongoing. The FBI was questioning the individual without his 

Miranda warnings prior to the presentment, and then we had a situation develop where the judge, magistrate judge showed up. He 

was given not only the presentment of the charges but also his Mi-
51 

randa warnings and received an attorney and that questioning was 

cut off, and it may have been cut off prematurely, as they were 

gathering valuable information. 

So, let me ask each of you, as time allows here, what options 

does the Federal Government have to gather intelligence for a period of time before issuing a Miranda warning? Are those options 

sufficient enough to strike the appropriate balance between keeping us safe and ensuring that our constitutional rights are preserved? And what other options should we be exploring to help 

achieve that important balance? 

Some have suggested, including myself, that we may need to 

have a statutory definition of under what circumstances and what 

narrowed scope of questioning can occur after the presentment but 

before the Miranda warning reading that would allow for a reasonable period of time for law enforcement to ask the necessary questions to make sure there is not something imminent that is a danger to all. 

So we’ll start with you, Mr. Chesney, and you can address that 

general subject matter of, what went right or what went wrong 

with the questioning of Mr. Tsarnaev and what should we do about 

it? 

Mr. CHESNEY. Thank you, Mr. Chairman. 

Incredibly important topic. We started off there on the right foot 

when the High-Value Interrogation Group, or the HIG, as it is 

known, was brought in. These are the people that you want interrogating someone in that situation, and that illustrates that you 

didn’t need it to be military detention in order for them to be involved in that interrogation. The problem arose after, I believe, 

about 16 hours’ worth of interrogation by the HIG had been accomplished, when, at that point, there was presentment with the magistrate, but more important than that, the Federal public defender 

assigned to represent Tsarnaev was present. 

Now, I don’t claim to have any knowledge of what the lawyer 

may have said to him. We can assume, Tsarnaev, though not prior 

to that point, read his rights, having essentially grown up in the 

United States, understood that he had a right to remain silent. He 

didn’t need to be—none of us, for the most part, when you grow up 

in the United States, need to be read your rights to know that 

that’s there. 

What really matters, I think, is when defense counsel sits down 

for a moment and says, listen, you should stop talking because a 

plea agreement is probably the best route out of here, and you 

should be silent because you need to save your comments for leverage. 

Now, at that point, the government has a choice. It could, as it 

did, as I understand it, stop interrogating the person because he 

then says, all right, I don’t want to talk anymore, and you could 

let that go and you can send the HIG on its way. That, I think, 

is where a mistake may have been made. I don’t think that the 

government has to stop at that point. It can, and I think in a circumstance like this, should continue with the HIG right there, continuing to talk to the person. He may say he doesn’t want to answer questions, and he may give the silent treatment in response, 

but the interrogation should continue nonetheless. 
52 

It may be that there’s space for a statute here that would clarify 

that this is—I think it is a proper action by the executive branch. 

It may have consequences for the admissibility of the resulting 

statements, but in a case like Tsarnaev’s, that’s not really central. 

That’s not the most important thing. A statute might help there. 

Mr. GOODLATTE. Mr. Wittes. 

Mr. WITTES. I don’t have a lot to add to that. I will say that, well, 

one of the consequences when people have rights is that sometimes 

they will invoke them, and you know, there is ultimately no way 

around that reality, and you know, the rights we have do have consequences and sometimes that consequences will include intelligence loss. 

I do think, if you read the Quarles opinion, which is you know, 

about a mundane street crime and the location of a gun, the idea 

that Congress could come in and say what public safety means in 

the context of a high-value interrogation of a major terrorist figure 

is not altogether implausible and that Congress could add some 

texture and add some flexibility. 

Mr. GOODLATTE. ‘‘Not altogether implausible’’ is not a big endorsement of the idea either. 

Mr. WITTES. Well, I mean, you know, there’s a Supreme Court 

opinion that addresses this point and that does impose constraints. 

Mr. GOODLATTE. But there is another Supreme Court decision 

that seemed to collide with it. 

Mr. WITTES. Well, so—I mean, I think Congress has more latitude in the presentment area where, you know, County of Riverside creates a presumption on 48 hours, and I think Congress could 

probably craft a legislation—a piece of legislation that would, you 

know, create latitude to delay presentment in these cases with an 

appropriate certification by the Attorney General. 

In other words, I think there are things that Congress could do 

to add flexibility to that situation, but at the end of the day, you 

are dealing with people’s constitutional rights, and sometimes if 

people have the right to remain silent, they’re going to remain silent. 

Mr. GOODLATTE. Right. And we certainly respect that. 

On the other hand, in the example given, for some of the time 

that he was held prior to presentment, he was unconscious. There 

was questioning that went on. That questioning seemed to actually 

yield quite a bit of fruitful information with regard to what was intended. As it turns out, nobody had the ability to carry it out because I don’t—we so far haven’t identified other people who were 

involved in trying to carry it out, but adding one or two more ingredients to that, what information he gave was useful information 

and could have yielded some real lifesaving information if it had 

been allowed to carry on and there was that additional component. 

Mr. WITTES. I think that’s right. I think there’s—look, I think it 

is an area where in a series of very important arrests, there has 

been, you know, a tension between the desire to, you know, comply 

with the rules of the criminal justice system and that exigent need 

to get information as quickly as you can, and I think there is—this 

is an area where Congress could probably give the Administration 

a little bit of breathing space or the FBI a little bit of breathing 

space. How much is less clear. 
53 

Mr. GOODLATTE. Mr. Engel. 

Mr. ENGEL. Thank you, Mr. Chairman. I think we’ve identified 

here a real issue in which there are costs to a proposal that requires Mr. Tsarnaev or others—not Mr. Tsarnaev, but others who 

would qualify to remain in the civilian justice system. We can talk 

about how one could tweak the fundamental circumstances in 

which the FBI and Department of Justice found themselves with 

respect to Mr. Tsarnaev. And again, I’m not saying that he could 

have, under these facts, been put into military custody. But the 

reason that Jose Padilla was put into military custody was specifically for purposes of detention and for creating a scenario in which 

he did not have to have an attorney at his side in very short order. 

So, you know, what we are—to the extent as I believe and as I 

believe precedent confirms, not predictions of vote counting, you 

know, or the like, but precedent confirms that enemy combatants, 

including American citizens, may be held in military custody, maintaining that has an option for extraordinary circumstances where 

lifesaving intelligence is available is a prudent course rather than 

suggesting that we want a blanket rule that would take that option 

off of the table. 

Mr. GOODLATTE. Not to prolong this because I way exceeded my 

time and I do want to give Ms. O’Connell and opportunity to speak, 

but the problem with that is that we have many types of terrorist 

attacks that are not going to take place without an authorization 

for use of military force, and without that AUMF, the President 

would have no authority to do that with regard to a United States 

citizen. So, for example, the Timothy McVeigh bombing in Oklahoma City, for example, we would not think of saying that a particular type of crime perpetrated by the United States citizen in the 

United States, a suspect of that could be held in one circumstance 

indefinitely and not in another, so it that really narrows that down 

to the AUMF. And here 12 years after 9/11, as we have left Iraq 

and are reducing our presence in Afghanistan, it is harder and 

harder to defend that deprivation of rights to U.S. citizens. 

So, I definitely understand your concern, but I think the exception to ask those questions, because they are important questions 

and could be lifesaving questions, needs to be narrower than to say 

that a certain type of person can be held indefinitely for questioning. 

Ms. O’Connell. 

Ms. O’CONNELL. Mr. Chairman—Mr. Chairman, my husband was 

a military interrogator for 11 years, and so I’m very well informed 

about the difference between FBI interrogations, civilian interrogation and military interrogation, and sad to say, I think this issue 

has just been overblown and misunderstood by people. 

Excellent FBI interrogators, as I think Professor Chesney indicated, can do an extremely good job, just as good as military interrogators, within civilian system. It is—I’m not quite sure how we’ve 

gotten on this wrong track, but remember when Abdulmutallab 

was arrested in Detroit, he was interrogated by excellent interrogators who had the training, the skills, the background knowledge, 

the language, et cetera, to get a great deal of information about the 

motivations, the connections, et cetera of Mr. Abdulmutallab. So, 

instead of focussing on, well, shouldn’t we do this experimental 
54 

thing and for people arrested within the United States, where 

there is no ongoing armed conflict, into the military system, let’s 

focus on doing the best we can to make sure that our civilian law 

enforcement authorities have the skills and access that they need 

to have. 

And in this case, with Mr. Tsarnaev, I really think we should be 

looking at what happened before the Boston bombing. Why didn’t 

the FBI have good contacts with Russia so that we had better information about these individuals before the tragedy? And that’s 

where I think we should be focussing. Sadly, I believe we’ve been 

distracted by thinking about Guantanamo Bay and military custody and so forth. We’ve taken our eyes off the prize of really doing 

what will succeed in preventing these kinds of tragedies, and that’s 

good international police cooperation with the best people, best 

skills, knowledge, language, et cetera 

Mr. GOODLATTE. Thank you very much. My time is way past expired. 

The Chair now recognizes the gentleman from Michigan. Before 

I do, I’ll have to step out for awhile, but I do hope to return to the 

hearing, and I recognize Mr. Conyers for his questions. 

Mr. CONYERS. Thank you. If I could have given you more time, 

I was—would have been happy to do it. 

This is a very interesting panel. And I am going to make a broad 

series of assertions and ask all of you to comment on it. One is that 

the global war on terror implies war without end, a concept that, 

as you can guess, I vigorously oppose. And then we have coming 

up the National Defense Authorization Act very soon in the Congress. And our colleague, the Ranking Member, Adam Smith, will 

be offering again his amendment to prohibit indefinite detention for 

anyone captured in the United States, even noncitizens, a measure 

I supported and perhaps a majority of my colleagues on this Committee may not have supported. 

And so it seems to me that we’re considering the analysis to prevent the government from treating all persons captured on U.S. soil 

as enemy combatants, regardless of their citizenship. And so and 

so trying to remember Madison and Justice Stevens, and the whole 

concept of fairness in matters that bleed into war, I’d like to get 

your views on these several subjects. And I’m going to start with 

the lady professor on the panel first. 

Ms. O’CONNELL. Well, Mr. Conyers, I agree with every comment 

that you just made. Let me focus on the first point, indefinite detention. As I mentioned in my comments, the armed conflict hostilities in Afghanistan will come to an end for the United States in 

2014. We will no longer be holding persons who are fighting in 

those hostilities in Afghanistan after that point. And yet we will 

still have people at Guantanamo Bay arrested in those hostilities, 

but, even more alarmingly, persons not detained in those hostilities, without any understanding about when they may be released; no trial, et cetera. The law of armed conflict does not permit 

that. Persons—— 

Mr. CONYERS. There’s 166 of them now, 86 of whom are cleared 

for transfer already but prevented by congressional mandate. 

Ms. O’CONNELL. So the only law that can justify these ongoing 

detentions is law that has been cooked up, not law that has come 
55 

through any type of appropriate process. We have the law of armed 

conflict that is binding on the United States as party to the Geneva 

Conventions. We have our own constitutional law, which plainly 

has limits on detention, according to law. The Hamdan case told 

our President that we have to be acting consistently with the Geneva Conventions in our detention processes of people in military detention. After the end hostilities in 2014 in Afghanistan, there 

won’t even be a shred of reason under the law to hold any of the 

detainees at Guantanamo Bay. 

Mr. CONYERS. Thank you so much. 

Let me now switch to Mr. Chesney, and let’s see where he goes 

from this discussion. 

Mr. CHESNEY. Thank you, Ranking Member Conyers. 

I’ll take those in reverse order. I’m going to start with the noncitizens question. I do agree, as I said, before that we should not 

draw distinction here between the citizens and the noncitizens captured within the United States, a few reasons for that. One is, I’ll 

begin with the idea that part of why we would want to resist as 

a general proposition military detention for domestic captures is a 

deep tradition of not having the military be in the lead when it 

comes to domestic security when that can be avoided. There are 

some circumstances, obviously, the Civil War and a few other examples, where that’s not the case. But, generally speaking, we have 

this tradition. 

Insofar as having a lead role for military detention when some 

terrorists may be captured within the United States is possible, 

well, that is going to have consequences for other things the military may need to do to be prepared to execute of role. And they will 

be in that position and incentivized to take on certain activities as 

long as they’ve got some lead role. And if noncitizens are that lead 

roll, there you have it. 

Secondly, when we distinguish between citizens and noncitizens, 

it’s alarming to our allies. Now, here I’m not talking about international law professors, people who do what I do in other countries, 

and so forth; I’m talking about the security officials in the U.K. and 

elsewhere who become greatly alarmed and have difficulty and 

more friction in their cooperation with us insofar as we claim authorities that are differential between our citizens and theirs. It’s 

not a dispositive point, but it’s a consideration that has security 

implications. 

Most importantly, the legal uncertainty that I described and the 

policy considerations that my colleague Mr. Wittes described, they 

are applicable on the citizens and the noncitizens capture fronts. 

Now, the legal uncertainty is less dramatic with respect to noncitizen captures, but if I’d had time, I would have explained how 

greatly divided the courts were in the case of Ali al-Marri, who was 

your prototypical noncitizen al-Qaeda sleeper agent. The courts 

were very torn up about that. 

So why don’t I stop there and just say one quick thing, which is 

that I don’t agree that the armed conflict with al-Qaeda ends when 

we leave Afghanistan in terms of an overt, big-footprint deployment. We’ve made clear in the papers and elsewhere, we’re going 

to continue to exercise force in support of counterinsurgency and 

other and other efforts and counterterrorism in Afghanistan beyond 
56 

2014. That doesn’t make it an endless war. It’s a war with defined 

enemies; it’s not a war with terrorism, as the Administration for 

both parties have is said in the past. It’s a conflict with al-Qaeda 

and its associated forces. 

Mr. CONYERS. Yes, sir. 

Mr. Wittes, the Chair has permitted me to have both of you 

make responses to the same question. 

Mr. WITTES. I’ll just add very briefly to what Professor Chesney 

said. I mean, the same operational improvements that have enabled us over the last 10-plus years not to have another Padilla 

case have also enabled us not to have another al-Marri case. And 

so, you know, in addition to the philosophical and legal and diplomatic reasons not to distinguish between citizens and noncitizens 

here, there is also the fact that, you know, when I said in my prepared statement, that we had just gotten a lot better at these 

cases, and we’re really not creating situations anymore in which it 

is necessary to move people out of the criminal justice system and 

into military detention, that claim applies with equal force to citizens and noncitizens. 

A brief word on the global war on terrorism. You know, I think 

if you—the Administration does not use language like the ‘‘global 

war on terrorism.’’ It talks about the NDAA. And the last Administration in its latter years was very careful about this as well. It 

talks about a war against al-Qaeda, the Taliban, and associated 

forces. And I think that when you frame it that way, it is not implausible to think to imagine the end of a conflict in—at—you 

know, and Jay Johnson, the then General Counsel of the Defense 

Department actually gave a speech at the Oxford Union back in 

December, in which he sort of talked very explicitly about what the 

end of conflict will look like. So I actually don’t agree that the global war on terror, to use your words, reflects a war without end. I 

think it is possible to imagine an end. 

Mr. CONYERS. Your comments, sir. 

Mr. ENGEL. Thank you. 

Mr. CONYERS. The Chair has permitted me to finish this up. 

Mr. ENGEL. I would just be brief. I think I have significant agreement with Mr. Wittes and Professor Chesney. I think the ‘‘global 

war on terror’’ is a phrase which has had uses; it’s had detriments. 

But it refers to a specific armed conflict against specific enemies, 

against whom we’ve made much headway; on the other hand, 

against whom we continue to engage in military operations in Afghanistan and Pakistan and, you know, throughout the Middle 

East and the Horn of Africa. 

It is possible to imagine a situation in which it would be safe for 

our country to, you know, release some of the folks at Guantanamo 

Bay. On the other hand, we’re not there yet. And there’s not necessarily a correlation between the end of major combat operations 

in Afghanistan and the end to the hostilities. But we will talk 

about that and the lawyers talk about that when we get to these 

positions, of course. 

Mr. CONYERS. Thank you. 

Could I just ask, Professor O’Connell, was shaking her head vigorously. I don’t know what Mr. Chesney said that set her off. But 

could you briefly explain this before my time is taken. 
57 

Ms. O’CONNELL. Well, Professor Chesney started out well when 

he said that the armed conflict would end in Afghanistan in 2014. 

But then he slipped further and said something about there being 

an armed conflict against al-Qaeda, the Taliban, and associated 

forces. And Mr. Engel just said that now. It’s important for the 

Committee to understand that this is a very internal-to-the-U.S. 

view; that out in the world where we’re actually operating with 

drones and with detention, et cetera, there may be only one other 

sovereign state that agrees with this position. That’s not a good 

place to be if you need cooperation with respect to these kinds of 

armed conflict groups. Certainly, the United Kingdom does not 

share our view that we are—— 

Mr. CONYERS. Which position? 

Ms. O’CONNELL. That there is actually a worldwide armed conflict against al-Qaeda, the Taliban, and associated forces. We are 

involved in pursuing criminal wrongdoing using peacetime criminal 

law enforcement under international criminal law. That’s the way 

the rest of the world views it. That’s the way Pakistan views it. Afghanistan will view it that way as soon as we’re gone in 2014. 

We’re not going to be allowed to just drop bombs on people in that 

country without their permission. That’s the way the African nations view it. That’s the way South America sees it. We need the 

help of all these countries. And that means viewing these issues 

from the way the rest of the world views it. 

Mr. CONYERS. Thank you very much. 

Please listen to President Obama tomorrow night when he talks 

about drones. 

Mr. KING. [Presiding.] The gentleman’s time has expired. 

And I would now recognize the gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. I thank the Chairman. 

Good to have you all with us today. 

Mr. Engel, in your testimony, you discuss at length the public 

safety exception to Miranda. As you point out, the only definitive 

case law concerning the public safety exception is Quarles. In your 

opinion, what is a reasonable amount of time that law enforcement 

should be able to detain a suspect without issuing a Miranda warning in order to obtain intelligence to protect the public safety? 

Mr. ENGEL. Thank you. You know, the question of how long law 

enforcement may detain an individual is—can be somewhat separate from the question of when they must read the Miranda warning. 

Mr. COBLE. Correct. 

Mr. ENGEL. What I tried to emphasize in my testimony is Miranda is a rule of criminal procedure. It governs when evidence 

may be admitted in a criminal case. If the police or the FBI, or 

whomever, seek to collect information for intelligence purposes and 

the goal is not to take that information and use it in a criminal 

case, they never need to read the Miranda warnings. Not providing 

Miranda is not a violation of the Constitution in the way that indefinite detention without due process or the like would—you 

know, could be a violation of the Constitution. And so in terms of 

the duration, the pressure that law enforcement is on comes from 

other provisions in the Constitution, those like presentment, that 
58 

we discussed, as well as the requirements of arraignment, which is 

actually separate from presentment when there’s an arrest warrant 

in place. 

So, you know, what I would seek is the flexibility or what I think 

the law permits is the flexibility for a longer detention when necessary for intelligence purposes, even recognizing that law enforcement may not be able to use those resulting statements in a criminal—in a criminal proceeding. 

Mr. COBLE. I got you. Thank you, sir. 

Let me ask you this, Mr. Engel. Should the public safety exception apply to threats that are imminent in nature, or should they 

apply to threats that may be months away? 

Mr. ENGEL. I think that’s—if that is an issue—I support the government’s efforts to read the public safety exception as broadly as 

they can. When the law enforcement is asking questions designed 

to, you know, to be directed at the public safety imminent threats 

and the like, I think there’s a basis, and the Department of Justice 

has taken a basis for arguing that the public safety exception 

would apply. I would note, though, I think as Congressman’s question suggests, that Quarles is a very different case. Quarles, they 

arrested the man. They said, where is the gun? He said, the gun’s 

over there in the refrigerator. They said, okay, that statement can 

come in because the police wanted to find the gun. 

When you talk about non-imminent threats, when you talk about 

something more than are there any other bombs out there, and you 

seek to collect information on, you know, Mr. Tsarnaev, what have 

you and your brother been up to over the last several years, and 

who do you know in Dagestan or in Russia, or the like, it’s difficult 

to see that the public safety excepting is truly implicated. While I 

support the government’s attempts to read that broadly, there’s a 

real litigation risk that those statements would not be admitted. 

Mr. COBLE. Thank you, Mr. Engel. 

Let me put this question to all the witnesses, starting with Professor Chesney. How would you determine—define the term ‘‘associated forces’’ as it’s used in AUMF, and—A. And, B, should having 

sympathetic view on being inspired by al-Qaeda qualify as associated forces? 

Mr. CHESNEY. Thank you, Representative Coble. 

Taking them in reverse order, I do not think having a sympathetic view can alone can make one an associated force. An associated force should have—well, to turn your second question, how do 

you define it? That’s sort of the big mystery. I think this is an issue 

that Congress rightly has begun to focus on, especially after last 

week’s Senate Armed Services Committee hearing, when it became 

clear that there is truly a lack of understanding, in this building 

and the ones around it, as to how the executive branch currently 

understands at the granular level, what is the test that makes 

some groups, some fellow traveling group, maybe, or subordinate 

group of al-Qaeda, what makes for an associated force? 

Over the years—the standard’s been around a long time. And in 

some applications, it makes perfect sense. But what the boundaries 

are is an incredibly important question that those of us who follow 

the stuff closely don’t know the answer to. For my part, I think you 
59 

should certainly be looking for some element of direction and control, not simply, you know, sympathy and ideological compatibility. 

Mr. COBLE. I thank you, sir. 

Mr. WITTES. So I agree entirely that ideological sympathy is not 

adequate to consider somebody an associated force or consider a 

group an associated force. There are actually some rather tragic examples of that principle at work, though I agree with the principle. 

For example, there was a long time in which the United States did 

not—felt like it could not take action against Anwar Al-Awlaki because he did not—hadn’t—you know, there was sort of some level 

at which he was not an operational figure, and it wasn’t quite clear 

how far associated the force was. Eventually, that changed. Right? 

So, on the question of what constitutes an associated force, I 

think the relevant concept in one way or another is co-belligerency. 

And, you know, the question is whether the group in question has 

entered the fight on the other side. 

Now, that begs all the questions that Professor Chesney just 

asked, which is, you know, what constitutes actually having entered the fight. But I think if you ask yourself the question, is 

the—is the relevant group co-belligerent for purposes of international law? Has it stepped into an existing armed conflict on the 

opposite side of the United States? That gives you a sense of how 

associated forces should be understood. 

One further note on that question, the D.C. Circuit in some of 

the habeas cases from Guantanamo has had to treat the question 

of whether somebody who’s an associated force, alleged to be a 

member of an associated force, is properly detained. And they’ve 

had some occasion in that context to answer questions of whether 

given groups are or are not associated forces. And so there’s some 

texture to the definition that comes out of those cases. 

Mr. COBLE. I thank you. 

Mr. Chairman, my time has expired. May I hear from Ms. 

O’Connell? 

Very briefly, Ms. O’Connell, if you will. 

Ms. O’CONNELL. Thank you, Mr. Coble. 

Well, I would look to the law of armed conflict to define—to find 

any of these important definitions. And the law of armed conflict 

does not have a definition of ‘‘associated force.’’ The law of armed 

conflict defines who the combatant, who is a civilian, and we have 

a new term, who is in a continuous combat function? Those are the 

important terms of art. Individuals in those categories during actual armed conflict may be targeted and killed, detained without 

trial, subjected to military commissions. There is no such term as 

‘‘associated force.’’ 

Mr. COBLE. I thank you. 

Thank you, Mr. Chairman. I yield back. 

Mr. KING. The gentleman has yielded back. 

Chair now recognized the gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you. 

I have three questions for the panel. First, we’ve established the 

standards for determining if someone is an enemy combatant. If 

someone is under the operational control of a belligerent power, he 

may be an unlawful enemy combatant if he’s not in uniform, et 

cetera, et cetera, et cetera. All right. So we know the standards. 
60 

But who applies the fact to the situation? Who determines the fact 

that Joe is an enemy combatant or not? Joe is captured in the 

United States or abroad. We claim he’s an enemy combatant. What 

is the proper methodology and standard for determining—he claims 

he’s not—for determining that question? 

First Mr. Chesney or Mr. Wittes and then Ms. O’Connell. 

Mr. CHESNEY. The question of who the proper fact finer is for the 

individual level determination of whether you’re subject either to 

detention or targeting may differ on those two dimensions. If it’s 

a detention question and the person is held outside of Afghanistan, 

then—certainly, if it’s at Guantanamo, we know what the process 

is going to be. There be an executive branch process on the front 

end by definition, but there will be habeas review on the back end 

for citizens—— 

Mr. NADLER. Since habeas review has been rendered completely 

meaningless by the D.C. Circuit by saying the court must accept 

as factual every assertion by the government. 

Mr. CHESNEY. I don’t agree with that description, respectfully, as 

to what the D.C. Circuit has held. The Latif did great he alarm 

people because it has language in there about presumptions of the 

reliability and the—when there’s hearsay and so forth, there’s a 

presumption that this is, in fact, what it purports to be. I don’t 

think it’s properly read—— 

Mr. NADLER. Let’s get back to the question. 

Mr. CHESNEY. So the question is detention. There’s habeas for 

nonbattlefield captures. It’s clear that would extend—— 

Mr. NADLER. Okay. 

Mr. CHESNEY [continuing]. To one captured elsewhere. 

For targeting right now the process—— 

Mr. NADLER. I’m interested in detention, not targeting. 

Ms. O’Connell. 

Ms. O’CONNELL. Yes. First, again, you have to see—the easy part 

is you only have to make these determinations with respect to people who are actually in situations of armed conflict, where there’s 

real fighting. That makes it much easier for you. You don’t have 

to worry about people like Mr. Padilla, who was arrested in Chicago, where there were no armed conflict hostilities going on. So 

leave that out. And of course—— 

Mr. NADLER. Anyone arrested in a nonconflict area or situation 

cannot be an enemy combatant? 

Ms. O’CONNELL. That’s correct. They can be—certainly, people 

who have not engaged in any armed conflict fighting, which was 

the case of Mr. Padilla in—— 

Mr. NADLER. But that would make Ex parte Quirin noncombatants. 

Ms. O’CONNELL. Ex parte Quirin took place during the Second 

World War, when there actually were worldwide armed conflict—— 

Mr. NADLER. But there wasn’t armed conflict in Long Island. 

Ms. O’CONNELL. There were members of the regular armed forces 

of—so—but they were members of the regular armed forces of Germany. 

Mr. NADLER. Okay. 

Ms. O’CONNELL. And of course, Ex parte Quirin is terribly overstated. Remember, the Supreme Court only looked to see if it was 
61 

appropriate and lawful to try these individuals in a military commission, not what their status was. 

Mr. NADLER. Okay. 

Ms. O’CONNELL. And we’re also talking about law that’s PostWorld War II; the Geneva Conventions are 1949. 

Mr. NADLER. Okay. 

Ms. O’CONNELL. So it really shouldn’t be as hard. And when we 

make mistakes about who might be arrestable because they were 

fighting in Afghanistan, we have an international community that 

is very—— 

Mr. NADLER. So what is the proper way so the Whatchamacallit 

clan in Afghanistan delivers an individual to us and says, we’re the 

Hatfield’s; here’s Mr. McCoy. We’re telling you he’s an enemy combatant; he’s an ally of the Taliban. Give us the $5,000 bounty. Fine. 

Here he is. What should our procedure be at that point? 

Ms. O’CONNELL. We should have used Article 5 hearings under 

the Geneva Conventions to get to the facts as to whether that person is or is not an enemy combatant. 

Mr. NADLER. Article 5. 

Ms. O’CONNELL. That’s what we did in the Gulf War. 

Mr. NADLER. Okay. Second question. Thank you. 

Second question. Ms. O’Connell, your position, as I gather, is that 

we cannot be at war with al-Qaeda because we can only be at war 

with a state actor. 

Ms. O’CONNELL. We can only be at war with—we only—we only 

participate in war in actual sovereign territory. We only participate 

in wars in real places. So if there is not—right now, we’re at war. 

It’s true we can be at war with—for example, in 2001, we went to 

war in Afghanistan, with the regular government of Afghanistan, 

the Taliban, and the al-Qaeda forces who were joined with them. 

So in fighting with the Taliban and Afghanistan. We—— 

Mr. NADLER. But let’s assume the Taliban were defeated. We 

cannot be at war with al-Qaeda because they are a nonstate actor? 

Ms. O’CONNELL. We continue to be at war with al-Qaeda to the 

extent that they’re fighting with the Taliban in Afghanistan. But 

today we’re fighting a civil war on behalf of Afghanistan. 

Mr. NADLER. And once that is over, we cannot be at war with alQaeda? 

Ms. O’CONNELL. That’s right. 

Mr. NADLER. We can only be at war with al-Qaeda through the 

agency of the Taliban, in effect? 

Ms. O’CONNELL. Right. 

Mr. NADLER. And the fact that al-Qaeda attacked us simply 

means that that’s a criminal action, and that’s the only way we can 

deal with it? 

Ms. O’CONNELL. We fought and won the war with al-Qaeda in 

Afghanistan; 9/11 led to the lawful war of self-defense in Afghanistan. 

Mr. NADLER. Okay. Let me ask you the next question. And I’d 

ask Ms. O’Connell and Mr. Chesney or Mr. Wittes. I gather your 

position is there is no legal authority for our holding people in 

Guantanamo. 

Ms. O’CONNELL. That’s correct. 
62 

Mr. NADLER. So let me ask you the following question. Let’s assume that people in—that Guantanamo detainees organized an escape attempt. Let’s assume that in so doing and attempting the escape, they killed American soldiers. Let’s assume that we capture 

them and put them on trial for murder. Let’s assume their defense 

was, it’s not murder; you’re a bunch of kidnappers. The United 

States kidnapped us with no claim of right and no legal right, and 

we’re simply attempting to escape from our kidnappers and have 

every right to use whatever force is necessary to escape from our 

kidnappers. How would the United States respond to that legally? 

Ms. O’CONNELL. Well, I would hope from this day forward after 

these hearings, the U.S. will start getting in compliance with international law, and then it could charge those individuals with murder. 

Mr. NADLER. But as of now, we could not—as of now, there 

would be no defense? 

Ms. O’CONNELL. Well, if we’re going to be consistent with our 

own strange world of law that we’ve built up after 9/11, it would 

be hard for us with a straight face to say that these are not persons 

who have committed an act of lawful war. But it would be possible—but under the real world of law, we’re in a situation of pursuing these individuals as criminal—as criminal suspects if they 

killed any American anywhere—— 

Mr. NADLER. But if their defense were that we’re victims of kidnapping, we had a right to do it, we have no defense against that? 

Ms. O’CONNELL. They—we do have a defense against it. I mean, 

I’m not trying to argue for—I would like us to say, yes, they committed a crime of murder. 

Mr. NADLER. But their crime of murder is justified if the victims 

of the murder are kidnappers. 

Ms. O’CONNELL. Mr. Nadler, I can’t get into the strange, 

Kafkaesque world how the global war on terror law works. 

Mr. NADLER. Let me ask Mr. Chesney to answer the same question. 

Mr. CHESNEY. I don’t think that they are kidnap victims. I don’t 

think that—even if they were, however, I don’t think that prisoners 

in any situation like that have a right to use lethal force against 

the guards to escape. But more importantly, though, I don’t accept 

the premise that they have that type of position to invoke in the 

first place. 

Mr. NADLER. Because we have a legal right to hold them there 

indefinitely? 

Mr. CHESNEY. I think so. And I think our court system has, after 

years and years of battle, to have the courts weigh in on this, they 

have sided with the government’s position, that in fact we do have 

a legal right to hold these people. 

Mr. NADLER. Deriving from the fact they are enemy combatants? 

Mr. CHESNEY. I’m sorry. 

Mr. NADLER. Deriving from the fact they are enemy combatants? 

Mr. CHESNEY. Yes. 

Mr. NADLER. Okay. Thank you. 

Mr. WITTES. May I just add something? 

Mr. KING. Gentleman’s time has expired. Yield back. 

Do you want to go ahead and answer the question, Mr. Wittes? 
63 

Mr. WITTES. I think the point that Professor Chesney makes that 

he does not accept the premise and that the courts do not necessarily accept the premise—— 

Mr. NADLER. Which premise? 

Mr. WITTES. That these are not lawfully detained people and, you 

know, we’re not entitled to be holding them, it’s important to emphasize that all three branches of government institutionally in the 

United States are on the same page about this. 

Congress, in the 2012 NDAA, reaffirmed detention authority specifically for those who are part of or substantially supporting alQaeda, the Taliban, or associated forces. That has long been the 

litigating position of the Administration under—in substantial part 

both parties as to the scope of the lawfully detained—the scope of 

its detention authority vis—vis individuals. And the courts have— 

the D.C. Circuit has repeatedly accepted that definition of, or something very close to it, of the detainable class. Supreme Court has 

repeatedly denied cert in those cases. So, you know, when we talk 

about, you know, these people regarding themselves as kidnap victims and attacking their guards, that is not the institutional position of any branch of the United States Government. 

Mr. NADLER. Thank you. I yield back. 

Mr. KING. Thank the gentleman. Has yielded back. 

Now the Chair recognizes himself for 5 minutes. And I would 

turn first to Ms. O’Connell. And you referenced Article 5 of the Geneva Convention. And I would just ask the unlawful combatants, 

would they be subject to execution under that particular provision 

that you referenced? 

Ms. O’CONNELL. No. Once individuals are in the control of another power, they are no longer subject to killing without—unless 

they have a trial. 

Mr. KING. But that’s subject to—that is exactly what I’m referencing, to put them through a trial. 

Ms. O’CONNELL. Yes. 

Mr. KING. And then they are subject to the potential death penalty or incarceration. 

Ms. O’CONNELL. Yes. 

Mr. KING. But didn’t you tell us that you don’t believe there’s authority to detain enemy combatants? 

So my follow-up question would be, then, if they are subject to 

a death penalty under proper adjudication, but they are unlawfully 

detained at Gitmo, that doesn’t seem consistent to me with your 

testimony. 

Ms. O’CONNELL. I believe there are a number of people at Guantanamo Bay who should be subjected criminal trials. But those 

would be Article III trials, not military commission. So everyone 

at—— 

Mr. KING. I heard that. 

Ms. O’CONNELL.—Guantanamo Bay is there unlawfully, in my 

view. Persons—— 

Mr. KING. How about if there were there unlawfully, then, then 

they would be subject potentially to the death penalty? 

Ms. O’CONNELL. They could be transferred to—— 

Mr. KING. Okay. Thank you. I’d like to explore a little bit different line of questioning here than has been—as I listened to the 
64 

testimony—I think it’s excellent witnesses in every single seat 

here, with obviously different perspectives. 

One of them, yours seems to be retrospective, Ms. O’Connell and 

just to some extent prospective in that anticipating that the conflict 

winds down in Afghanistan and then predicting that our legal authority also winds down, gentlemen on this side don’t agree that it 

winds down because the conflicts looks like it’s going to exist, regardless of the President’s announcement that there will be a date 

certain that the war will be over. 

I reflect instead back on let’s say 1968, the Tet Offensive. And 

I recall the infiltration of enemy troops and also the local South Vietnamese enemy troops. We saw them. They infiltrated into the 

south and struck at will all over the country simultaneously. That 

was—that’s a scenario that I think of here in the United States 

when I see reports of potentially—potential enemy combatants infiltrating into the United States across our southern border has 

been referred to by Robert Mueller, our Director of the FBI. And 

also those who came in here on visas, whether they were tourist 

visas, student visas, whatever means, and overstayed their visas. 

But we have reports of significant numbers of people who are 

persons of interest from Nations of interest. I don’t know that number. I could speculate on a number, but I don’t think we know that 

number. 

But I’m not as concerned about an individual bombing. And I 

was relieved in a way that—I expected the Boston bombing, not in 

Boston. I didn’t know the location. But I expected we would face 

another terrorist attack, having lost three lives and scores of people 

wounded, could have been far worse than that, was intended to be 

far worse than that. 

But what about this scenario that’s not retrospective but prospective to this extent. What if these infiltrators that we know are in 

this country today that are persons of interest from Nations of interest that are inclined to have the kind of affiliations that would— 

they are far more likely to be part of an enemy al-Qaeda cell. What 

do we have prepared for that? We don’t have ex post facto in this 

country. 

So for us to be adjusting our laws believing that a conflict is 

winding down, as opposed to preparing ourselves so that we could 

deal with a scenario that I’ve described here as a broader and a 

very, very much a terrorist all-out attack within the United States 

and multiple locations. 

And if you remember on September 11th, we didn’t know how 

broad that was going to be. We didn’t know it was going to end up 

being four locations. All the planes were grounded. We shut down 

weddings and football games. A lot of American life was shut down 

because we didn’t know how pervasive it was. 

So I’d suggest instead—and I go first to Mr. Engel—what do we 

do to prepare for a scenario like that, rather than how do we look 

backwards on this thing and try to wind something down? 

Mr. ENGEL. I think you raise, you know, a very good and important question. What we need to do is maintain the maximum flexibility within the law. No one is saying that the United States needs 

to bend the laws or bend the constitution. But when you have techniques and tools within the Nation’s arsenal that have been 
65 

deemed to be lawful by the courts, I think the wise choice to do is 

to preserve that flexibility and to keep those options open. 

And we should not unilaterally be tying our arms behind our 

back by deciding that a particular threat seems to have waned, and 

so we should have a statute that says, regardless of circumstance, 

the President may not, you know, pursue these options. And I 

think we have been very successful over the last 10 years, because 

we’ve recognized, since 9/11, that the war on terror is a military 

problem and it’s a law enforcement problem. And we have used all 

of our repertoire in many, many departments of the U.S. Government. And I would—I would just counsel against taking options off 

the table based upon, as you suggested, assumptions about where 

things are now or where the threat is now. Because we weren’t prepared on 9/11, and we have to continue to be prepared going forward. 

Mr. KING. Would you advocate for setting up a structure of adjudication that could quickly process some of these individuals into 

a military detainee category that would allow for enhanced interrogation so that we didn’t get them Mirandized and taken out of the 

information source so that we could quickly identify the source of 

the attacks and perhaps prevent others? 

Mr. ENGEL. I think if we needed—if we thought that there were 

gaps in the law that needed to be remedied, if there were new 

structures. And one of those structures, I think, the gap that I see 

now is with respect to some of the ambiguities about who is in the 

conflict. Who can we detain? Who are these associated forces? That 

kind of proposal, as well potentially as an Article III court to evaluate detention decisions, you know, separate from what we—the 

process we’ve—— 

Mr. KING. But aren’t some of the ambiguities also the doubt on 

where the jurisdiction lies and the political question that’s been 

part of this dialogue, too? Couldn’t this Congress provide a definitive course that could be decisive and perhaps lifesaving? 

Mr. ENGEL. Sure. When I was in the government, I was part of 

an initiative that Attorney General Mukasey spearheaded to come 

up with a robust statutory procedure to deal with detention in the 

armed conflict against al-Qaeda. It don’t move very far in 2008. We 

haven’t really seen it revived in the new Administration. But certainly some kind of regularized statutory process to deal with these 

issues going forward would certainly be a, you know, would seem 

to be a prudent course. The courts have essentially muddled 

through been the DDC, the District Court in Washington D.C., and 

the D.C. Circuit over the last several years. And they’ve made some 

law that establishes these procedures. But certainly the people who 

are supposed to make law in this country are here in Congress, 

and, you know, Congress taking up this issue would certainly—I 

would certainly support that. 

Mr. KING. I thank you. I just quickly, as I’ve used my time, I go 

to Mr. Chesney, if you could keep it short. 

And then perhaps to Mr. Wittes for your comment on that. 

Mr. CHESNEY. Will do. On the process, I guess I would say that 

I was completely in agreement several years back with Mr. Engel 

on the need for Congress to step in and craft that process. Truth 

is, over time, the D.C. Circuit and the D.C. District Courts have 
66 

ironed out a process that it’s hard to imagine that Congress would 

create something that would be much different than what they’ve 

already created. So could be good to entrench it in statute, but I 

think it’s already there. 

As to the Tet-like scenario you described, it certainly puts the 

spotlight on the need for serious attention to the immigration side 

to things, in the intelligence collection side of things. As to this 

question of detention, this kind of comes back to the question of, 

does one think that military detention is going to get us something 

real and valuable that the current structure of the criminal process 

with the high-value interrogation group involved wouldn’t get you? 

And I guess I’ve stated my views on that. 

Mr. KING. Thank you. 

Mr. Wittes. 

Mr. WITTES. I have very little to add to that except for the following. You know, I do think the one thing that could fundamentally change the way I regard what the appropriate detention authority is domestically is if you had a sudden very large influx of 

numbers into the system. And so if you imagine the scenario that 

you describe, in which, you know, a very large number of people 

are suddenly—you know, have to be detained, that could really fundamentally change the calculations that I have in my recommendations with Professor Chesney today. On the other hand, that is also 

a situation in which I think this body would step up very quickly 

and pass whatever authorization the executive felt it needed to 

deal with that situation. 

So when I think about the situation that we face today, I’m less 

concerned about the dramatic changed facts, which I think this 

body would turn around and address pretty quickly, than I am 

about the next time we arrest somebody and have to decide exactly 

how to process him, and we have to go through a, you know, very 

wrenching sort of public argument to figure that out. 

Mr. KING. I thank you. I thank all the witnesses. And my time 

has expired. 

The Chair now recognizes the gentleman from the Commonwealth of Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. 

And I thank the witnesses. It’s been very informative. I want to 

follow through on some of the questions that the gentleman from 

New York asked about the process of declaring someone an enemy 

combatant. And who makes it, where it’s made and how it’s reviewable. I asked the Attorney General Ashcroft, when we were doing 

this—when this issue first came, if you are factually innocent of 

the charge, wouldn’t you get to present that evidence? And his response, as I remember it was, at the end of the conflict, that at the 

end of war on terrorism, whatever that means, you can—after 

you’ve been in jail all that time, you can present evidence that it 

wasn’t you. 

So my question is, exactly who makes the determination that 

someone is an enemy combatant, and what is the standard of 

proof? Is it preponderance of the evidence? More likely than not? 

Not clearly erroneous? Beyond a reasonable doubt? What is the 

standard by which you are designated an enemy combatant? And 

then when do you get to review that determination? 
67 

Ms. O’Connell. 

Ms. O’CONNELL. Mr. Scott, I’d love to answer that question. And 

I’d also like to comment on Mr. King’s last question to the other 

witnesses that I didn’t get to respond to. Because I think it’s an 

essential question that we’re really talking about today. How 

should we prepare this country to defend our people from the next 

terrorist strike? Should we recreate the law, create greater flexibility to declare people enemy combatants, as Mr. Scott inquired, 

or should we stick with the law that we have now and say to the 

world, this is a law-abiding country? We do things by the book. 

We found out that, in fact, successful counterterrorism is based 

on following the letter of the law as it currently exists. There was 

no greater recruiting tool to militant groups, terrorist organizations, than Abu Ghraib, which was a demonstration of our failure 

to follow the law of armed conflict. Today, the number one recruiting tool to terrorist organizations, to making people dangerous to 

this country, is the drone policy—killing people beyond armed conflict zones in clear violation of the law of armed conflict. 

We have heard, Mr. King, from Admiral Blair, from General 

Cartwright, from so many people—the Rand Corporation—that the 

way to deal with the next terrorist threat to this country is by 

making it clear to the world that we believe in the rule of law in 

this country, and we’re going to follow it. We’re not going to make 

up new rules, create new categories of persons—these enemy combatants in the war on terror that may or may not ever end, that 

says to the world, we don’t care about the law. And that makes this 

country—puts this country in greater danger than if we say the Geneva Conventions determine who is an enemy combatant. We’re 

not going to make up a new rule. We know who is a criminal suspect accused of terrorist planning and plotting. Those people should 

be subject to arrest and trial. If they resist arrest, then police, of 

course, are authorized to kill known dangerous persons, very much 

the way Osama bin Laden was captured. That’s the way forward. 

Mr. SCOTT. The Hamdi decision put a limit on some of this. You 

have some kind of—you have to have some kind of procedure. What 

is the burden of proof that the government has to establish to declare someone an enemy combatant? Mr.—— 

Mr. WITTES. So, first of all, there’s an internal executive judgment, and depending on where that person is held, those procedures differ. 

But for the Guantanamo detainees, they then have access to U.S. 

courts to challenge whatever judgment the executive made that 

they are detainable. Those cases, there have been a lot of them, of. 

Mr. SCOTT. If you’re held in Guantanamo—— 

Mr. WITTES. Evidence proves—— 

Mr. SCOTT. If you are held in Guantanamo, you have access to 

courts. 

Mr. WITTES. You have access to the District Court in Washington 

and, through there, the D.C. Circuit and the Supreme Court. 

I believe—I—my numbers may be wrong. I believe there were 14 

detainees who won their cases in the District Court on habeas and 

were released as a result of that. 

Mr. SCOTT. What is the standard of proof? 

Mr. WITTES. Standard of proof is preponderance of the evidence. 
68 

Mr. SCOTT. So, you know, more likely than not, you’re an enemy 

combatant. 

Mr. WITTES. Correct. 

Mr. SCOTT. And that’s the standard that you’re held on. And if 

they show that you’re more likely than not an enemy combatant, 

you get to be held till when? 

Mr. WITTES. Till the termination of hostilities. 

Mr. SCOTT. And do you get—— 

Mr. WITTES. Or till the termination of hostilities or, as in—as in 

a great number of the cases, until there’s a prudential judgment 

that your detention is no longer necessary. And, you know, a lot 

of people at Guantanamo have—— 

Mr. SCOTT. More likely than not isn’t a real—— 

Mr. WITTES. I’m sorry? 

Mr. SCOTT. More likely than not, preponderance of the evidence, 

isn’t much of a standard to hold someone. And then they would 

have to prove their innocence at that point? 

Mr. WITTES. There is—look, there’s no question that this is not 

a criminal proceeding. It is a detention on significantly less than 

criminal standards. 

Mr. SCOTT. Let me ask one other question. And that is, wiretapping for terrorism. We have a constitutional right to be free 

from unreasonable search and seizures. And there are procedures 

of wiretapping some people’s phone conversations. That standard is 

a lot less if it’s an investigation for terrorism. You go into FISA 

court and get warrants based on a much lower standard. One of 

the problems occurred in the USA Patriot Act where we started 

sharing information from terrorism to law enforcement. And then 

reduced the purpose of the wiretap from primarily terrorism to terrorism being a significant purpose. I asked the Attorney General 

Gonzales, if it’s not the primary purpose, what could be the purpose of a terrorism warrant? And he blurted out ‘‘criminal prosecution.’’ Which is exactly the problem. Because you’ll be running a 

criminal prosecution without all of the probable cause and other 

things you need to get warrants. 

Can some of the witnesses comment on the problems of wiretap 

and other invasions in the privacy under the guise of terrorism 

when you’re really running an ordinary criminal prosecution? 

Mr. ENGEL. Sure. You know, I take—Congress spent a lot of time 

modernizing the FISA statute several years ago. And that—you 

know, statute has been authorized and reauthorized at times. From 

my point of view, I confess 30 days after the Boston Marathon 

bombing, my concern is not that too much of terrorists—of what 

the intelligence services are able to pick up under their lawful authorities is shared with law enforcement for prosecutions, but that 

there are still barriers and obstacles to information sharing between our intelligence services and the FBI. And, you know, so, 

again, I think there are certainly important constitutional concerns 

that are at work here. There is a very articulated statutory requirement which involves Article III judges being involved with 

these warrants. But there is a balance on both sides. We must—— 

Mr. SCOTT. The balance is—you’re exactly right. If you’re investigating terrorism, you’ve got an easy way. All you’ve got do is declare terrorism, and you get all the warrants you want. The check 
69 

on that has been that you can only use these for terrorism. When 

you start running criminal investigations pretending to use terrorism as a significant but not primary purpose, your primary purpose is running a criminal investigation when you don’t have probable cause, then that’s when you start getting into problems. I 

don’t think there’s much discussion in the ability to get warrants 

if you’re investigating terrorism. That’s okay. But if you’re running 

a run-of-the-mill criminal investigation, you shouldn’t be able to 

use terrorism as an excuse to violate the Constitution. 

Mr. ENGEL. If we believed that the Department of Justice and 

the FBI were misusing the FISA procedures to pursue nonterrorism investigations, that would be certainly a cause for concern. 

I am not personally aware of that going on. But, you know, I don’t 

have oversight capabilities over the Department of Justice. 

Mr. SCOTT. Ms. O’Connell, you want to make a comment on that? 

Ms. O’CONNELL. Mr. Scott, I am not an expert on the FISA laws 

or wiretapping, and I really try to limit my commentary to where 

I am expert, which is law of war. 

Mr. SCOTT. Mr. Chairman, I think we created the problem by reducing the standard from primary purpose of the warrant being 

terrorism to a significant purpose, which invites the inquiry, what 

is the primary purpose? And when the Attorney General blurted 

out ‘‘criminal investigation,’’ I mean, I think that let the cat out of 

the bag. 

I yield back. 

Mr. KING. I recognize the gentleman from Virginia’s point. And 

then the gentleman has yielded back. 

And recognize the judge from Texas, Mr. Poe, for 5 minutes. 

Mr. GOHMERT. Mr. Poe is not here. 

Mr. KING. Excuse me. Mr. Gohmert for 5 minutes. 

Mr. GOHMERT. I’m here at your far left. If you want to make that 

note. 

Mr. ENGEL. But your right. 

Mr. GOHMERT. But I agree with my friend from Virginia on everything he said, except that apparently it may be easier to get 

warrants if you are allegedly involved in terrorism or if you’ve written an article critical of this Administration, either way opens the 

doors, apparently, to warrants. 

But let’s go back to the interrogation of the Boston bombers, 

Dzhohkhar Tsarnaev. 

What would have happened had he not been given his Miranda 

rights for after—until after 72 hours of interrogation? What would 

have happened to the criminal proceeding whenever that occurs? 

Mr. ENGEL. Again, there—you know, there is—I think the 

short—the short answer is probably the result of his criminal trial 

would be no different, frankly. There is a risk—— 

Mr. GOHMERT. But they wouldn’t have been able—the difference, 

isn’t it, that they wouldn’t have been able to use anything he said 

after the time at which he should have been arrived—advised of 

his Miranda rights. Correct? 

Mr. ENGEL. That’s right. 

Mr. GOHMERT. It would not have prevented his being prosecuted, 

it would just have changed some of the things being admissible 

that he said after that point. Correct? 
70 

Mr. ENGEL. Exactly. The government would run the risk not 

being able to admit those statements. 

Mr. GOHMERT. And so—— 

Ms. O’CONNELL. Unless, of course, they corroborated what he 

said through other means. 

Mr. GOHMERT. Right. Exactly. They had a pretty solid case before. 

Ms. O’CONNELL. Exactly. 

Mr. GOHMERT. And you add admissions against interest to the 

person whose car was highjacked. They had a pretty solid case 

even without anything he said. That was my point. There was all 

this concern and fear expressed publicly about, gee, they’ve got to 

advise him of his Miranda rights. Should they? Really, it wouldn’t 

have made much difference at all, if any. That was my point. 

And, Ms. O’Connell, you pointed out the good job of interrogation 

that was done, I believe, the Underwear Bomber. But that was in 

December of 2009. And that was before we learned of the purging 

of training materials for FBI and for intelligence. And we found out 

about this Administration’s weighing in and stopping career individuals who taught about radical Islam being prevented from 

teaching about radical Islam. And I was, frankly, shocked when our 

Attorney General was sitting at this table last week how little he 

apparently knows about the purge of the materials. 

There are a couple of us that have been through purged materials. I think it’s ridiculous that they classified those. I think people 

ought to know how absurd the things are that they have classified 

and purged from people being taught. There are things that have 

been made public that have been eliminated because of concerns 

that it might offend, apparently, radical Islamists. 

But I want to take your attention to a December 8 New York 

Times article—of course, The New York Times is not usually kind 

to me, but they did a good job reporting December 8th of 2008, 

‘‘Five Charged in 9/11 Attacks Seek to Plead Guilty.’’ And they 

went through and they talked about Khalid Shaikh Mohammed 

and the other four. And actually, he prepared the pleading that all 

five of them signed and agreed to. And in that pleading, he said 

such things—and this was declassified—‘‘So if our act of jihad and 

our fighting with you caused fear and terror, then many thanks to 

God because it’s Him that has thrown fear into your hearts which 

has resulted in your infidelity, paganism, and your statement that 

God had a son and your Trinity beliefs.’’ Also said, ‘‘We fight you 

and destroy you and terrorize you. The jihad is God’s cause and a 

great duty in our religion. We have news for you. The news is you 

will be greatly defeated in Afghanistan, Iraq, and that America will 

fall politically, militarily, economically. Your end is very near, and 

your fall will be just as the fall of the Towers on the blessed 9/11 

day.’’ 

Now, I understand that there are being recruiting tools used 

around the world. Ms. O’Connell, I know you were talking about 

that. But I would submit to you the Muslims I’ve talked to in Afghanistan that have fought the Taliban successfully, until we 

began to occupy Afghanistan and let them come back, but they say 

the best recruiting tool—and it’s not only them. People I’ve talked 

to in Iraq and in China and in the continent of Africa, South Amer-
71 

ica, they said one of the best recruiting tools they’ve got that they 

use, and we found it in their material, the way you fled South Vietnam, the way you left Beirut after you were attacked, the way you 

did nothing in 1979 when you were attacked, the way you have 

now left Iraq under the influence of Iran, how you are leaving Afghanistan as a leader that we released from Guantanamo—and Mr. 

Masood told me that he had been on—that this terrorist who was 

released for humanitarian purposes now on television nationally in 

Afghanistan saying, ‘‘We all know now the United States has been 

defeated. They are begging us to come talk to them at the negotiating table. But we don’t care. You know, we’ll be back in charge 

so you better come beg our forgiveness, join our forces.’’ And they 

are getting people to come back and join the Taliban because of the 

fear, because the recruiting tool is, America’s been defeated again. 

And I would just hope that the message will not be after this 

hearing that America will no longer be at war with al-Qaeda and 

radical Islam. That we will not give in to that. 

Ms. O’Connell, I’ve talked to people in England and other places 

that say, we hope and begging you, please don’t give up the fight, 

because they are scared of what happens in America gives up the 

fight. 

So does anybody know—just time has expired—but I’m just curious, does anybody know why the guys that wanted to plead guilty, 

that were ready to plead guilty, that went through a lengthy plea 

hearing where Khalid Shaikh Mohammed admitted all of these 

things that he had done, does anybody know why they have not yet 

been convicted? Why they have not had their conclusion to the 

guilty plea and the admissions they’ve made? 

Mr. CHESNEY. I will—if someone knows better, I’m going to speculate a little here. But my recollection is that in military criminal 

justice proceedings, whether it’s a military commission or courtsmartial, in contrast to how we do it in the civilian Federal courts, 

if it’s death penalty, I believe there’s either in the court-martial 

system an outright ban on just pleading guilty and getting the 

death penalty. There has to nonetheless be a proceedings. Or at 

least there’s a disposition against that. Maybe Professor O’Connell 

might know more about this. 

Ms. O’CONNELL. Basically, that’s correct. You can’t just plead to 

be executed. And I would point out, Mr. Gohmert, that in fact KSM 

wanted to be a martyr in order to help this very process that you 

just indicated, that if there were—if he was martyred, executed by 

the United States without any kind of fair trial, that would lead 

more people to join. 

Really, I’m the wife of a proud United States Army soldier. And 

I believe in the strong defense of this country and support our serving men and women just as much as I can. Many of our students 

are currently in Afghanistan fighting under orders of our President. And what I—what I know—— 

Mr. GOHMERT. They maybe some of the ones that begged us to 

change the rule of engagement so they don’t have to get shot before 

they can defend themselves. I talk to them, too. 

Ms. O’CONNELL. I know that those young men and women fight 

right. They fight under our Constitution. They do what the law re-
72 

quires. And they know that that’s the sure way to succeed in any 

venture that this country undertakes in the world. 

Mr. GOHMERT. So you say we are succeeding in Afghanistan, 

that’s your position? 

Ms. O’CONNELL. The current war in Afghanistan is a war to keep 

Mr. Karzai in power. It’s an anti-insurgency war. And we have succeeded so far in keeping Mr. Karzai in power. I think Mr. Karzai’s 

long-term stability is dependent more on his creating a rule of law 

system, a political system that works for all the people of Afghanistan and not an unending civil—— 

Mr. GOHMERT. You know that’s not going to happen, though, 

from Karzai. 

Ms. O’CONNELL. Mr. Gohmert, like you, I’m a person of prayer 

and of faith. And I pray every day that that will happen. And I actually believe very strongly that—that this country is in a position 

to support Mr. Karzai and all Afghans to move toward a rule of law 

system and the protection of human rights. 

Mr. GOHMERT. Let me put something else on your radar, then, 

that we can both pray for. What the Muslims in the northern area 

have told me is, If you will just allow us to elect our governors, our 

mayors, select our own police chiefs instead of having the president 

of this country appoint all of those people, we’ve got a better chance 

of fighting the Taliban after you’re gone, than if you leave this 

stovepipe system where the Taliban can knock off the central character and then be back in charge. 

So I’m hoping that we give them more of a federalist system on 

our way out. It will help them and us. So thank you for being here 

today. 

Mr. GOODLATTE. [Presiding.] I thank the gentleman. 

The Chair recognizes gentlewoman from Texas, Ms. Jackson Lee, 

for 5 minutes. 

Ms. JACKSON LEE. Thank you very much. To the witnesses, let 

me thank you all for your testimony. I was detained as a 

counterterrorism hearing that indicated to me, first of all, I will not 

disagree with my good friend, but I will say that America has suffered few defeats. And, frankly, Afghanistan and the treasure that 

we have lost, even the treasure we’ve lost in Iraq, despite its 

conflictedness, I will never accept defeat by this Nation. Frankly, 

I believe that we have evidenced, if you will, if it is not where we 

would like it to be, we have certainly evidenced some strides. It 

will be up to many of the good men and women ultimately of Iraq 

and ultimately of Afghanistan to preserve the democratic principles 

that we have. 

I do think it is worth noting in the previous hearing, since it was 

a public hearing, of those witnesses’ enormous concern about alQaeda and its pervasiveness and its worldwideness and its presence. And I think it is important to be in this hearing—and I’m 

going to be very brief because I am moving to another meeting that 

I have to be at. But it’s important to have these juxtaposed hearings—because what it says about America is that we are aware of 

the worldwide threat of terrorism, but we hold dear and we cherish 

our constitutional values as well as our constitutional process. And 

I think—I think it is evident that none of us will give up that constitutional process. 
73 

So I’m going to be very brief. I’m going to ask the Chairman to 

allow me to put into the record, March 7, 2013, a letter addressed 

to Senator Rand Paul. And the simple question to the Attorney 

General was, does the President have the authority to use a 

weaponized drone to kill an American not engaged in combat on 

American soil? The answer to that question is no, signed Eric Holder, Jr.; ask unanimous consent, Mr. Chairman, to put this into the 

record. 

Mr. GOODLATTE. Without objection, it will be made a part of the 

record. 

[The information referred to follows:] 
74 

Ms. JACKSON LEE. I think that also speaks to a clear firewall as 

it relates to some of the issues we are talking about. 

Just to Mr. Chesney. And let me acknowledge your affiliation 

with the University of Texas School of Law. I love the sign. And 

thank you, Texan. And to the Brookings Institute and to all of you, 

we respect your respective affiliations as well. 

But let me just ask Mr. Chesney, is it appropriate for bomber 

number two out of Boston Marathon to be tried in a civilian Federal court? And I would ask all of you just a yes-or-no answer, or 

quick sentence. 
75 

Mr. Chesney. 

Mr. CHESNEY. Yes. 

Mr. WITTES. Yeah, that’s the only appropriate disposition. 

Mr. ENGEL. No disagreement, yes. 

Ms. O’CONNELL. Emphatic yes. 

Ms. JACKSON LEE. And I think that sets a marker because as the 

investigation grows, he is a terrorist or alleged terrorist or perpetrator against the United States, but it is important to have that 

fine line of how we draw and whether or not we have the provisions to be able to try that case as well. 

To Mr. Engel, the FBI instructs that after any and all applicable 

public safety questions have been exhausted, agents should advise 

the arrestee of his Miranda rights, seek a waiver of those rights before any further interrogation occurs absent exceptional circumstances. 

Boston Marathon was an example that where the public actually 

got to see something other than television, which was, where are 

the Miranda rights? What’s your take on that? 

Mr. ENGEL. Well, I think you correctly identified exceptional circumstances in the policy and I think that the agents determined 

or the Department of Justice, this was done at high levels, determined that it was appropriate to question Mr. Tsarnaev without 

giving the Miranda warnings for as long as they were able, you 

know, prior to the termination of the interrogation. I have some 

concerns that it could have been terminated too early, but, you 

know, I wasn’t there and I don’t have the information there. So, the 

FBI does have that flexibility, but they also have constraints to 

bring the individual before a judge and to provide him with a defense counsel. 

Ms. JACKSON LEE. Let me not ignore any of the other witnesses. 

I indicated that I’m going to yield back my time because of another 

engagement, but what I would offer to say is, I want to look further 

into the safety exemptions, exceptions. I find that it was constructive. I want to be right on it. I want to see whether we need to look 

further into it, and I also want to make sure that we continue to 

have this fine infrastructure that protects our constitutional process but yet does not let us take one step back on fighting against 

the dastardly actions of terrorists against the United States or elsewhere. 

I yield back. 

Mr. GOODLATTE. The Chair thanks the gentlewoman and recognizes the gentlemen from Georgia for his questions for 5 minutes. 

Mr. JOHNSON. Thank you. I would—I would point out the fact 

that as conditions change, then our constitution, which is the foundation of our laws, must grow and must look at our rights and liberties under the constitution in light of today’s reality, and so I 

think when we have strict construction of the United States constitution by anyone, be it on the left or the right, I think that’s action that is misguided or thinking that’s misguided. I believe that 

the constitution grows and interpretations have to be rendered in 

accordance with the times that we are living in. 

And that being the case, I mean, that’s how it grows is by actions 

being taken and then those actions being taken to court and challenged, and the U.S. Supreme Court being the final arbiter of 
76 

whether or not a particular action is constitutional or not. And 

we’ve had instances throughout the history of the Nation that have 

required the rights and liberties that we enjoy under the constitution to be limited or expanded. I point to Ex parte Milligan back 

in 1862 during the civil war or at the time of the civil war, where 

President Lincoln suspended habeas corpus to all persons in military custody, and he further proclaimed that rebels and insurgents, 

their aiders and abettors within the U.S. and all persons discouraging volunteer enlistments or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the 

United States shall be subject to marshal law and liable to trial 

and punishment by court marshals or military commission. 

Congress subsequently authorized the suspicion of habeas corpus 

wherever—whenever the President judged it necessary in the public safety. And so, under that declaration by the President and the 

act of Congress, a citizen from the State of Indiana alleged to be 

a senior commanding general of the Sons of Liberty, a group with 

links to the Confederacy, was arrested and charged with planning 

to commit acts of sabotage against the union, and the government 

argued that Milligan could be tried by military commission or that 

if the military commissions lacked jurisdiction over the case, the 

military could hold Milligan as a prisoner of war until the end of 

hostilities, at which time he would be remanded to civil authorities. 

And the case went to the U.S. Supreme Court and the court found 

that such actions can never be applied to citizens in States which 

have upheld the authority of the government where the courts are 

open and their process unobstructed. So, in other words, that the 

fact that you’re going to charge a United States citizen with an act, 

you know, you still, that citizen was not deprived of their right to 

habeas corpus and all other Constitutional rights that easily, and 

so—and so then you had the case of Ex parte Quirin. In the summer of 1942, eight German nationals attempted to enter the U.S. 

by submarine, and then landed in Nazi uniform to ensure that they 

would have prisoner of war status. Eight of the men were—all 

eight were born in Germany but had lived in the U.S. for extended 

periods of time, and one of those eight actually proclaimed himself 

to be a U.S. citizen, that being, Mr. Quirin. And the conspirators 

who were going to commit acts of terrorism in the U.S. were apprehended, and they were charged and convicted in a military tribunal 

and sentenced to death. 

And now the defendants in that case argued that—or the appellants argued that the President exceeded his power in ordering 

military commission and Fifth and Sixth Amendment protections. 

The President had ordered that these people not have those constitutional rights, and the court ruled that that was improper, Ex 

Parte Quirin, and the court found that the citizenship of the saboteurs was irrelevant to the determination of whether they were 

enemy belligerents or not. So excuse me, I misspoke. The court 

ruled in that case that these men could be deprived of those constitutional rights. But the thing was, when you read those two 

cases together, because Quirin did not overrule Milligan, so, therefore, you have to read those two together, and when you do, there 

has got to be a showing of an association with enemy forces. 
77 

So, if you can show an association with enemy forces to a citizen 

of the United States of America applied to an act within the United 

States of America, an act of terror or an act of crime, because crime 

and terror are matters of degrees but both are crimes, especially 

when someone has been hurt. So I put all of that out there to say 

that, isn’t it prudent that with the recent bombing taking place in 

Boston, involving a United States citizen, who was questioned for 

16 hours by—in addition to civilian law enforcement, military interrogation, without having been read Miranda warnings, and 

then, within the 48 hours that the law requires that a person arrested in civilian population or for a civilian crime, be brought before a magistrate, at which time they have to be read their Miranda warnings, wouldn’t you say that in this particular instance 

the government has proceeded carefully and within the boundaries 

of current law? Would each of you all say that? 

Mr. CHESNEY. Representative Johnson, I very much agree that 

the government proceeded carefully and within the bounds of law 

here in the Tsarnaev case. 

Mr. JOHNSON. All right. 

Mr. WITTES. I agree with that as well. 

Mr. ENGEL. Based on what I know, it sounds like the government 

proceeded appropriately. I have some concern as to whether the interrogation of Mr. Tsarnaev was ended early than it needs to be 

done, but certainly with respect to civilian custody and prosecution 

in an Article III court and the like, that seems, you know, it’s done 

appropriately. 

Mr. JOHNSON. Well, assuming that law enforcement and military 

interrogators were satisfied that there was no association with 

enemy forces, then would you agree that the government proceeded 

lawfully and within the bounds of the constitution? 

Mr. ENGEL. Clearly the government proceed lawfully, and my 

comments are solely within regard to the civilian law enforcement 

system. In other words, I’m aware of no fact that suggests that Mr. 

Tsarnaev should have been declared an enemy combatant and put 

into the military justice system. The question within the boundaries of the civilian justice system is, were the interrogators, law 

enforcement interrogators confident that they have obtained all of 

the information on future terrorist plots or terrorist organizations 

that was available at the time that Mr. Tsarnaev was read his Miranda warnings or was—— 

Mr. JOHNSON. Well, there is—— 

Mr. ENGEL [continuing]. There some lawyer who—— 

Mr. JOHNSON. There is no evidence that they had not convinced 

themselves that he was not associated with foreign enemy forces. 

Mr. ENGEL. That’s right. I don’t believe that that was at issue. 

Mr. JOHNSON. All right. Thank you. 

Ms. O’CONNELL. Mr. Johnson, the government proceeded lawfully, I agree with my copanelists, but I believe the correct precedence to look at are not Ex parte Milligan and Quirin but rather 

the hundreds of successful terrorism prosecutions that this country 

has held, including such prosecutions as that of Timothy McVeigh 

but also the Blind Sheikh associated with the embassy bombings, 

and of course, the many, many successful Abdulmutallab—— 

Mr. JOHNSON. Yeah. 
78 

Ms. O’CONNELL. Et cetera, et cetera. Those are the right precedents. 

Mr. JOHNSON. I agree that our civilian justice system has been 

quite effective in dealing with internal cases of terrorism, but I 

would challenge you, because you seem to not want to construe the 

constitution or our constitutional liberties in accordance with the 

realities of the time that we are living in, and perhaps that’s too 

strong a statement for me to make, but would you agree that as 

America encounters new challenges, such as home grown terrorists, 

who are associated with enemy forces, do we need—— 

Mr. GOODLATTE. I think this is the last question. 

Mr. JOHNSON. Yes. Do we need more—do we need a Constitutional amendment or do we need legislation in accordance with our 

constitution that would apply to a situation, such as the one we 

faced in Boston? Do we need to take some legislative action or 

amend our constitution in some way to protect our citizens? 

Ms. O’CONNELL. No, Mr. Johnson, I think our constitution has 

served us extremely well when we have complied with it. The Fifth 

Amendment to the constitution protects the right to life of all persons, and that right to life—— 

Mr. JOHNSON. And not just citizens but persons. 

Ms. O’CONNELL. Not just to citizens. No person shall be deprived 

of their right to life without due process of law, and that due process depends on whether the person is in a situation of war, armed 

conflict or peace. That’s very current law. That is law that we are 

constantly involved in participating and making. 

The area of customary international law, where we get our definition of ‘‘armed conflict’’ is up-to-date, up to the minute. It is reflecting the problem of terrorism faced, not just by the United 

States but our close allies, the United Kingdom, Germany, India, 

et cetera, et cetera. We are up to the minute on this. We are—our 

law is up-to-date, and we are being distracted by those who tell us 

all these terrible and difficult problems of society have to be run 

through the military. 

Mr. JOHNSON. Okay. 

Mr. GOODLATTE. I want to—— 

Mr. JOHNSON. Yes. Can I ask the others to just say ‘‘yes’’ or ‘‘no’’ 

whether or not—— 

Mr. GOODLATTE. Very, very briefly. I know that Ms. O’Connell 

has to get to my alma mater to attend a graduation, and I am all 

in favor of people attending Washington and Lee graduation, so if 

you’ll be brief. 

Ms. O’CONNELL. I would love to pass on to my nephew your good 

wishes. Thank you, Mr. Chairman. 

Mr. GOODLATTE. You may do so. 

Ms. O’CONNELL. Washington and Lee. 

Mr. ENGEL. I think our Constitution has served us well. I don’t 

think there is an amendment necessary in this area. I think, with 

respect to the case of the Boston Marathon bomber, I don’t see any 

statutory amendments or new statutes that are needed to deal with 

that problem. 

Mr. JOHNSON. Thank you. 

Mr. WITTES. I agree with that, with the caveat that, as my earlier exchange with Chairman Goodlatte reflects, I do think it is 
79 

well worth Congress looking at the question of what it can do 

around the public safety exception and what it can do around the 

possibility of a delay in presentment. 

Mr. CHESNEY. I agree with what Mr. Wittes just said. 

Mr. JOHNSON. Thank you. 

Mr. GOODLATTE. I thank you all. I thank the gentlemen from 

Georgia and the gentlemen from Virginia. This has been a very 

thoughtful and good discussion, and I think there are some actions 

that will possibly come out of this, but it has definitely been a good 

review of the circumstances that we are in. And with that, we will 

conclude today’s hearing and thank all of our witnesses for attending, and without objection, all Members will have 5 legislative days 

to submitted additional written questions for the witnesses or additional materials for the record, and those additional written questions, we hope you will answer those as promptly as possible. 

And this hearing is adjourned. 

[Whereupon, at 12:25 p.m., the Committee was adjourned.] 

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