[Senate Hearing 109-881]
[From the U.S. Government Publishing Office]
S. Hrg. 109-881
MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN
V. RUMSFELD
=======================================================================
HEARINGS
before the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 13, 19; AUGUST 2, 2006
__________
Printed for the use of the Committee on Armed Services
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COMMITTEE ON ARMED SERVICES
JOHN WARNER, Virginia, Chairman
JOHN McCAIN, Arizona CARL LEVIN, Michigan
JAMES M. INHOFE, Oklahoma EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas ROBERT C. BYRD, West Virginia
JEFF SESSIONS, Alabama JOSEPH I. LIEBERMAN, Connecticut
SUSAN M. COLLINS, Maine JACK REED, Rhode Island
JOHN ENSIGN, Nevada DANIEL K. AKAKA, Hawaii
JAMES M. TALENT, Missouri BILL NELSON, Florida
SAXBY CHAMBLISS, Georgia E. BENJAMIN NELSON, Nebraska
LINDSEY O. GRAHAM, South Carolina MARK DAYTON, Minnesota
ELIZABETH DOLE, North Carolina EVAN BAYH, Indiana
JOHN CORNYN, Texas HILLARY RODHAM CLINTON, New York
JOHN THUNE, South Dakota
Charles S. Abell, Staff Director
Richard D. DeBobes, Democratic Staff Director
(ii)
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
Military Commissions in Light of the Supreme Court Decision in Hamdan
v. Rumsfeld
july 13, 2006
Page
Black, MG Scott C., USA, The Judge Advocate General of the Army.. 7
McPherson, RADM James E., USN, Judge Advocate General of the Navy 8
Rives, Maj. Gen. Jack L., USAF, The Judge Advocate General of the
AirForce....................................................... 8
Sandkulher, Brig. Gen. Kevin M., USMC, Staff Judge Advocate to
the Commandantof the Marine Corps.............................. 8
Romig, MG Thomas J., USA (Ret.), Former Judge Advocate General of
theArmy........................................................ 8
Hutson, RADM John D., USN (Ret.), Former Judge Advocate General
ofthe Navy..................................................... 9
Continue to Receive Testimony on Military Commissions in Light of
theSupreme Court Decision in Hamdan v. Rumsfeld
july 19, 2006
Massimino, Elisa C., Director, Washington Office, Human Rights
First.......................................................... 104
Bierman, Katherine Newell, Counterterrorism Counsel, U.S.
Program,Human Rights Watch..................................... 122
Fidell, Eugene R., President, National Institute of Military
Justice........................................................ 133
Mernin, Michael, Chair, Committee on Military Affairs and
Justice, TheAssociation of the Bar of the City of New York..... 164
Carafano, James J., Senior Research Fellow, The Heritage
Foundation..................................................... 213
Katyal, Neal K., Professor of Law, Georgetown University......... 231
Schlueter, David A., Hardy Professor of Law and Director of
Advocacy Programs,St. Mary's University........................ 249
Silliman, Scott L., Professor of the Practice of Law and
Executive Director,Center on Law, Ethics, and National
Security, Duke University...................................... 260
Continue to Receive Testimony on the Future of Military Commissions
inLight of the Supreme Court Decision in Hamdan v. Rumsfeld
august 2, 2006
Gonzales, Hon. Alberto R., Attorney General of the United States. 316
England, Hon. Gordon R., Deputy Secretary of Defense............. 322
(iii)
MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN
V. RUMSFELD
----------
THURSDAY, JULY 13, 2006
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 10:02 a.m. in
room SH-216, Hart Senate Office Building, Senator John Warner
(chairman) presiding.
Committee members present: Senators Warner, McCain, Inhofe,
Roberts, Sessions, Collins, Talent, Chambliss, Graham, Cornyn,
Thune, Levin, Kennedy, Byrd, Lieberman, Reed, Bill Nelson, E.
Benjamin Nelson, Dayton, Bayh, and Clinton.
Committee staff members present: Charles S. Abell, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: William M. Caniano,
professional staff member; Regina A. Dubey, professional staff
member; Ambrose R. Hock, professional staff member; Derek J.
Maurer, professional staff member; David M. Morriss, counsel;
and Scott W. Stucky, general counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Michael J. Kuiken, professional
staff member; Peter K. Levine, minority counsel; William G.P.
Monahan, minority counsel; and Michael J. Noblet, staff
assistant.
Staff assistants present: Jessica L. Kingston, Benjamin L.
Rubin, and Pendred K. Wilson.
Committee members' assistants present: Ann Loomis,
assistant to Senator Warner; Pablo Chavez, Christopher J. Paul,
and Richard H. Fontaine, Jr., assistants to Senator McCain;
John A. Bonsell and Jeremy Shull, assistants to Senator Inhofe;
Chris Arnold, assistant to Senator Roberts; Mackenzie M.
Eaglen, assistant to Senator Collins; Clyde A. Taylor IV,
assistant to Senator Chambliss; Matthew R. Rimkunas, assistant
to Senator Graham; Russell J. Thomasson, assistant to Senator
Cornyn; Stuart C. Mallory, assistant to Senator Thune; Mieke Y.
Eoyang and Joseph Axelrad, assistants to Senator Kennedy;
Christina Evans and Erik Raven, assistants to Senator Byrd;
Frederick M. Downey, assistant to Senator Lieberman; Elizabeth
King, assistant to Senator Reed; William K. Sutey, assistant to
Senator Bill Nelson; Eric Pierce, assistant to Senator Ben
Nelson; Luke Ballman, assistant to Senator Dayton; Todd
Rosenblum, assistant to Senator Bayh; and Andrew Shapiro,
assistant to Senator Clinton.
OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner. Subsequent to the Supreme Court decision,
I was approached by a number of people who inquired as to my
opinion with regard to the gravity of this situation. I said,
this piece of legislation which Congress is now tasked to
provide could be one of the landmark pieces of legislation,
certainly in the 28 years that I've been privileged to be in
the United States Senate.
Given that we started a little late this morning--we had to
do that to accommodate some of our colleagues on the Judiciary
Committee--I will not, in an opening statement, try to go back
over the history of how the administration, and, indeed, this
country, have tried to deal with this very complex and, really,
unprecedented situation regarding detainees. Most, if not all,
have no real state allegiance, and were not in a state-
sponsored type of conflict.
I will just assume that everyone before us here on this
panel, and, indeed, my colleagues, are well aware of that.
Therefore, I also will not try and get into any dissertation
about the Supreme Court decision. We've all studied that. I'll
simply say that we, in my judgment, as a Congress, in this
legislation, must meet the tenets and objectives of that
opinion; otherwise, such legislation that we will devise and
enact into law might well be struck down by subsequent Federal
Court review, and that would not be in the interests of this
Nation. The eyes of the world are on this Nation as to how we
intend to handle this type of situation, and handle it in a way
that a measure of legal rights and human rights are given to
detainees.
I say ``a measure,'' because I'm not prepared, this
morning, to say what would be the parameters in that situation.
Like several other members of this committee, I've been in
consultation with the administration, and it was made very
clear to me by the National Security Advisor, Mr. Hadley, and
Ms. Miers, Counsel to the President, that they were working the
issue, that there were some honest difference of opinion as to
approach within the administration--that's quite
understandable; it's the way it should be--but that they would
reconcile those positions and advise Congress shortly after the
President returns from the G8 conference.
Given that there have been two hearings at which witnesses
have appeared and have stated rather finite parameters, I do
not believe that we, Congress, have received the last word, by
any means, as to where and how the administration would like to
see this legislation proceed.
With that in mind, I'd just caution my colleagues--let us
be most respectful of the fact that we will work in partnership
with the administration, but the burden rests on Congress to
enact this law. It's my understanding--and I'll yield
momentarily to my colleague, Senator McCain, who, likewise, has
been in consultation with the administration, to give his
perspectives--but we have to keep in mind the end game. The end
game, ladies and gentlemen, are the men and women of the Armed
Forces on the far-flung fronts of this world, wherever they may
be, and, indeed, an associated number of civilians, who,
likewise, are taking extraordinary risks. We're a Nation at
war, and we need to preserve our country's ability to protect
our intelligence sources from discovery by the enemy, and our
men and women have to rely on sound intelligence to carry out
their missions.
We cannot, also, overestimate the importance of how we,
Congress, working with the administration, deal with this. As I
said, the eyes of the world are upon us, and we must set the
standards. This is new ground. It may well be, in the months
and years to come, that the international community will
suddenly begin to realize fully, as we are now, the complexity
of this new type of terrorist nonstate-sponsored combat, go
back and hold a international conference to see what we can do
to revise certain portions of the various treaties and
documents which have guided nations these past years, given the
change of circumstances.
Now, the Senate leadership, in consultation with me and
other committee chairmen, recommend that our committee proceed
with its work, the Judiciary Committee is doing its work, the
Intelligence Committee may well do its work. Eventually, it's
my judgment that the leadership will put together the views of
the three committees and have a leadership bill to propose to
the Senate. It's my hope also that that bill be, to the extent
possible, a bipartisan document, because it is, in my judgment,
absolutely imperative that this law be enacted before Congress
completes this Congress, whenever that may be.
At this time, Senator Levin, do you have a few comments?
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. Thank you, Mr. Chairman.
On June 29, the Supreme Court held that Congress has a
vital role to play in determining the appropriate procedures to
be applied when our Nation decides to try a detainee for a
crime, such as a violation of the laws of war. I welcome
today's hearing as an important step in that process and a step
that can reinforce our Nation's credibility around the world by
demonstrating our commitment to being a nation of laws, even
with regard to enemies who have not, themselves, abided by the
laws of war.
If we are going to win the war on terrorism, we need more
than military strength; we need to rally decent people
everywhere in the world to root out terrorists and to share
information about their horrific plans. We will have more
success convincing potential friends and allies to actively
join us in this cause if we show them not just our military
strength, but also our values as a Nation.
For almost 5 years now, the Bush administration has
insisted on running the war on terrorism on its own, with
little or no role for Congress. Over and over again, the
administration has insisted that the executive branch has
plenary authority to address critical issues such as processes
for defining enemy combatant status, standards for the
treatment and interrogation of detainees, procedures for trying
detainees for crimes, and rules for the collection of
electronic intelligence inside the United States. Last summer,
Senator Lindsey Graham chaired a hearing in our Personnel
Subcommittee in which the administration was repeatedly urged
to work with us to develop legislation governing the criminal
trial of detainees by military commissions. Senator Graham made
it clear that we needed to write such legislation, not because
we oppose the war on terrorism, but to help us win the war by
establishing a firm legal basis for the trial of the small
percentage of detainees that we try for crimes, thereby showing
the world that we remain a nation of laws, even when we are
attacked by the lawless.
The Department of Defense (DOD) Deputy General Counsel made
it clear at that hearing that the administration didn't
particularly welcome Congress's help. He testified that
``legislation is not necessary. The President has powers under
the Constitution. I don't think we need additional
authorities.''
Two weeks ago, in Hamdan v. Rumsfeld case, the Supreme
Court forcefully rejected that administration position. The
authority to establish military commissions to try detainees
for violations of the law of war, the Court ruled ``can derive
only from the powers granted jointly to the President and
Congress in time of war.'' The military commission established
by the administration to try Hamdan ``lacks the power to
proceed,'' the Court ruled, because it was not consistent with
the authority granted by Congress, which requires its
procedures to be consistent with the rules governing courts-
martial and the requirements of international law, including
Common Article 3 of the Geneva Conventions. The Supreme Court
found that the military commissions established by the
administration to handle criminal trials departed from those
rules and requirements in a number of ways: by authorizing the
exclusion of a detainee from his own trial; by permitting the
admission of a broad range of unreliable evidence; by
permitting legal decisions to be made by nonlawyers; and by
establishing unique review procedures that do not include
safeguards important to the fairness of criminal proceedings
and the independence of the court.
We begin our deliberative process where we should begin it,
with the testimony of distinguished military officers who lead,
and have led, our able Corps of Judge Advocates. These are the
witnesses who are most familiar with the rules for courts-
martial and the history and practice of military commissions.
They also understand the practical importance of our adherence
to American values and the rule of law in the treatment of
others. If we mistreat, torture, or humiliate persons whom we
detain on the battlefield, or if we proceed to try detainees
without fair procedures, we increase the risk that our troops
will be subject to similar mistreatment, torture, or
humiliation at the hands of others.
Our Founding Fathers established the standard for our
Nation in this area, as they did in so many other areas. The
British mistreated, starved, and summarily executed many
American prisoners during our war for independence, but, as
described by historian David Fischer in his book,
``Washington's Crossing,'' General Washington ``ordered that
captives would be treated as human beings with the same rights
of humanity for which Americans were striving,'' and ``those
moral choices in the War of Independence enlarged the meaning
of the American Revolution.''
I hope that this Congress will reaffirm once again the path
of American values and enlightened self-interest that was set
at our Nation's birth as we address the issues now before us
involving the practices and procedures to be used with those
detainees whom we decide to try for crimes.
Mr. Chairman, I thank you for proceeding as you are in this
manner, thoughtfully, as always. I join you in welcoming the
distinguished panel of witnesses. I ask that my full statement
be inserted in the record.
[The prepared statement of Senator Levin follows:]
Prepared Statement by Senator Carl Levin
On June 29, the Supreme Court held that Congress has a vital role
to play in determining the appropriate procedures to be applied when
our Nation decides to try a detainee for a crime, such as a violation
of the laws of war. I welcome today's hearing as an important step in
that process, and a step that can reinforce our credibility around the
world by demonstrating our commitment to being a nation of laws, even
with regard to enemies who have not themselves abided by the laws of
war.
If we are going to win the war on terrorism, we need more than just
military strength: we need to rally decent people everywhere in the
world to root out terrorists and to share information about their
horrific plans. And I firmly believe that we will have more success
convincing potential friends and allies to actively join us in this
cause if we show them not just our military strength, but also our
values as a Nation.
For almost 5 years now, the Bush administration has insisted on
running the war on terrorism on its own, with little or no role for
Congress. Over and over again, the administration has insisted that the
executive branch has plenary authority to address critical issues such
as processes for defining enemy combatant status, standards for the
treatment and interrogation of detainees, procedures for trying
detainees for crimes, and rules for the collection of electronic
intelligence inside the United States. Unfortunately, reports in the
media about U.S. practices for the treatment, interrogation, and trial
of detainees at Guantanamo and elsewhere have severely undermined
support for U.S. efforts around the world.
Last summer, Senator Lindsey Graham chaired a hearing in our
Personnel Subcommittee at which the administration was repeatedly urged
to work with us to develop legislation governing the criminal trial of
detainees by military commissions. Senator Graham made it clear that we
needed to write such legislation not because we oppose the war on
terrorism, but to help us win the war by establishing a firm legal
basis for the trial of the small percentage of detainees that we try
for crimes, thereby showing the world that we remain a nation of laws
even when we are attacked by the lawless.
The DOD Deputy General Counsel made it clear at that hearing that
the administration didn't particularly welcome Congress' help. He
testified: ``[Legislation is not necessary. . . . [T]he President has
powers under the Constitution. . . . I don't think we need additional
authorities.''
Two weeks ago, in Hamdan v. Rumsfeld, the Supreme Court forcefully
rejected that administration position. The authority to establish
military commissions to try detainees for violations of the law of war,
the Court ruled, ``can derive only from the powers granted jointly to
the President and Congress in time of war.'' The military commission
established by the administration to try Hamdan ``lacks the power to
proceed,'' the Court ruled, because it was not consistent with the
authority granted by Congress, which requires its procedures to be
consistent with the rules governing courts martial and the requirements
of International Law, including Common Article 3 of the Geneva
Conventions. The Supreme Court found that the military commissions
established by the President to handle criminal trials departed from
those rules and requirements by:
authorizing the exclusion of a detainee from his own
trial;
permitting the admission of a broad range of
unreliable evidence;
permitting legal decisions to be made by non-lawyers;
and
establishing unique review procedures that do not
include safeguards important to the fairness of the proceedings
and the independence of the court.
According to the Supreme Court, departure from the existing rules
governing courts martial is permitted only when it is necessary--
because compliance is not ``practicable''--not merely because it is
convenient.
It is now up to us to decide how the ground rules for these
commissions will be fashioned. As Justice Breyer explained in his
concurring opinion:
``The court's conclusion ultimately rests upon a single
ground: Congress has not issued the executive a `blank check.'
. . . ,
``Where, as here, no emergency prevents consultation with
Congress, judicial insistence upon that consultation does not
weaken our Nation's ability to deal with danger. To the
contrary, that insistence strengthens the Nation's ability to
determine--through democratic means--how best to do so. The
Constitution places its faith in those democratic means. Our
court today simply does the same.''
We begin our deliberative process where we should begin it--with
the testimony of the distinguished military officers who lead, and have
led, our able Corps of Judge Advocates. These are the witnesses who are
most familiar with the rules for courts martial and the history and
practice of military commissions. They also understand the practical
importance of our adherence to American values and the rule of law in
the treatment of others: if we mistreat, torture, or humiliate persons
whom we detain on the battlefield, or if we proceed to try detainees
without fair procedures, we increase the risk that our own troops will
be subject to similar mistreatment, torture, or humiliation at the
hands of others.
Our Founding Fathers established the standard for our Nation in
this area as they did in so many other areas. The British mistreated,
starved, and summarily executed many American prisoners during our war
for independence. But, as described by David Hackett Fischer in his
book Washington's Crossing, General Washington ``ordered that . . .
captives would be treated as human beings with the same rights of
humanity for which Americans were striving,'' and those ``moral choices
in the War of Independence enlarged the meaning of the American
Revolution.''
I hope that this Congress will reaffirm once again the path of
American values and enlightened self-interest that was set at our
Nation's birth as we address the issues now before us involving the
practices and procedures to be used with those detainees whom we decide
to try for crimes.
Mr. Chairman, I thank you for proceeding as you are in this matter,
thoughtfully as always, and I join you in welcoming our distinguished
panel of witnesses.
Chairman Warner. Thank you very much, Senator Levin.
I'll introduce the panel, but I'd like now to ask Senator
McCain to add his perspective.
Senator McCain. Thank you, Mr. Chairman.
Very briefly, first of all, I would like to congratulate
you on convening this panel of witnesses. These are not
political appointees, they're not transient lawyers, they're
individuals who have served this Nation during their entire
careers and understand the implications of the Uniform Code of
Military Justice (UCMJ), how it would apply to detainees; and
their testimony should be significant in guiding us as to how
we should address this very difficult challenge we face as a
result of the United States Supreme Court decision.
Again, I want to emphasize my respect for the members of
this panel for their involvement; and sometimes, on occasion,
members of this panel have had to stand up in disagreement with
the civilians in the DOD, which is their duty under certain
occasions.
Mr. Chairman, I just want to repeat, Senator Graham and I
met with the President's National Security Advisor, Mr. Hadley,
and present in the room were DOD and the Department of Justice
(DOJ) representatives. We did agree, at that time, according to
Mr. Hadley, that the basis of proceeding on applicable
legislation would be the UCMJ. No one understands better than
those individuals that there certainly will have to be changes
made from the standard rubric of the UCMJ, but that's what the
United States Supreme Court has told us to do. At that time, I
was under the impression that that was the administration's
position. I hope that it hadn't changed.
Mr. Chairman, I just want to point out--you've made
reference to it--America's image in the world is suffering
because of Guantanamo Bay or perceived treatment of detainees.
We need to fix that, and now is our opportunity to do it.
Perhaps most importantly, and I know our witnesses will
emphasize this, we will have more wars, and there will be
Americans who will be taken captive. If we somehow carve out
exceptions to treaties to which we are signatories, then it
will make it very easy for our enemies to do the same in the
case of American prisoners. I know that our witnesses will
emphasize that today.
I hope that as we deliberate as to how we approach--and we
need to have a dialogue, and not openly disagree until we have
at least exhausted the dialogue amongst ourselves--is that we
do have an obligation to future generations of men and women
who are serving in the military and make sure that we're not
doing something that would allow them to be mistreated under
some excuse because of actions we have taken in implementing
this decision.
I thank you, Mr. Chairman. I thank the witnesses.
Chairman Warner. Thank you very much, Senator McCain.
Indeed, my consultations with Mr. Hadley are comparable to
those that you received, and I'm somewhat perplexed at some of
the testimony that was offered both to the Senate Judiciary
Committee and the House Armed Services Committee yesterday.
But, in due course, we'll work that out.
I remain on the timetables outlined to me, that the
administration will be forthcoming in a formal manner
subsequent to the G8 conference and their return.
I purposely, in consultation with my colleagues, have
decided that we would have this distinguished panel before us
today. I have some modest career in the legal business, many
years ago, and I just see, in each of you, what I aspired to
achieve when I was a very young man in the law business. I
remember when the senior partner of my firm walked down the
hall, we flattened our back against the wall like you were
aboard ship, ``yes, sir.'' Each of you, through your skills,
has achieved an eminence and a recognition by becoming the
Judge Advocates of your distinguished group of younger lawyers
and associates throughout your respective commands. That is a
remarkable achievement. I can think of no better than the
current incumbents, and some of the past, to help us set the
course and speed for this committee.
The only distinction between you and the senior partners of
major law firms across America today is that you make about
one-tenth of their salaries.
Having said that, General Black, would you like to start?
STATEMENT OF MG SCOTT C. BLACK, USA, THE JUDGE ADVOCATE GENERAL
OF THE ARMY
General Black. Yes, sir. Thank you, Mr. Chairman, Ranking
Member Levin, and members of the committee. I'd like to thank
you for the opportunity to appear here today and for the
committee's timely and thoughtful consideration of Hamdan v.
Rumsfeld.
I'd also like to express my heartfelt thanks to the members
and staff of this committee for your continuing hard work on
behalf of the Army's soldiers, civilians, and family members.
We really do appreciate what you do, day-in and day-out.
With that, I look forward to your questions, sir.
Chairman Warner. Thank you.
Admiral McPherson.
STATEMENT OF RADM JAMES E. McPHERSON, USN, JUDGE ADVOCATE
GENERAL OF THE NAVY
Admiral McPherson. Thank you, Mr. Chairman and Senator
Levin. I echo General Black's articulate welcome this morning.
We sincerely appreciate the opportunity to come before you
today and talk with you about, as you put it, one of the most
important pieces of legislation that this body has ever taken
up. We come here with that sense; and, at the same time, we
come with the sense that Senator McCain spoke of, that we need
to think in terms of the long view.
We need to think in terms of the long view and to always
put our own sailors, soldiers, marines, and airmen in the place
of ``an accused'' when we're drafting these rules to ensure
that these rules are acceptable when we have someone, in a
future war, who faces similar rules.
Thank you, sir.
Chairman Warner. General Rives.
STATEMENT OF MAJ. GEN. JACK L. RIVES, USAF, THE JUDGE ADVOCATE
GENERAL OF THE AIR FORCE
General Rives. Mr. Chairman, Senator Levin, members of the
committee, it is an honor to be here today. We don't have
formal written statements, but we do look forward to answering
any questions, sharing our experiences, and being able to
discuss any of the matters you would like us to discuss so you
can better understand all of the issues you're facing here.
Chairman Warner. The committee purposefully said you didn't
have to put down formal statements.
General Rives. Yes, sir.
Chairman Warner. So, we understand that.
General Sandkulher.
STATEMENT OF BRIG. GEN. KEVIN M. SANDKULHER, USMC, STAFF JUDGE
ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
General Sandkulher. Mr. Chairman, Senator Levin, it's an
honor to be here. We have been here before on important
matters, and it's a pleasure to be back again to address
additional important matters. We look forward to handling your
questions and having a discourse on the issues.
Thank you.
Chairman Warner. General Romig.
STATEMENT OF MG THOMAS J. ROMIG, USA (RET.), FORMER JUDGE
ADVOCATE GENERAL OF THE ARMY
General Romig. Thank you, Chairman Warner, Senator Levin,
and other members.
I'm very pleased to appear before you today as a private
citizen. I would like to say, at the outset, that this is a
very important topic that Congress and this committee are
addressing now, since it has far-reaching and historic impact
for our military and our country.
In this endeavor, I would urge Congress to take its time to
deliberately and methodically explore all the options available
before crafting the appropriate legislation. I would strongly
caution against a rush to judgment. If ever there was a time
for bipartisan effort, it is now.
I urge you to take the long view, because the steps you
take today will undoubtedly have a dramatic impact on our
Nation's ability to effectively wage war for decades to come.
As you go through this deliberative process, I would
strongly urge you to retain the military commissions as an
important tool for the military to prosecute violations of the
law of war.
Having said that, I believe any legislation on military
commissions needs to reflect the practice of military law as it
has evolved over the last 60 years since military commissions
were last convened and as the uniformed lawyers advocated in
2001 and early 2002.
To this end, I believe the starting point for updating
military commissions is to look at the structure, the
processes, and the procedures that are in the Manual for
Courts-Martial and the UCMJ.
I want to be very clear about this, I am not advocating
adopting the court-martial process as whole cloth; rather, a
review needs to be done that would look at those processes and
procedures that do not make sense for prosecuting law-of-war
offenses committed on the battlefield. There are a number of
courts-martial processes and procedures that would not work,
and should not be applied to military commissions.
In this process of developing military commission
procedures, I believe the drafters--and I'm sure they will--
need to look at the provisions of the law of war and the Geneva
Conventions, especially if this effort is not limited to
detainees at Guantanamo, but is also to apply to all law-of-war
violators on the battlefield.
Thank you. I'm prepared to answer your questions.
Chairman Warner. Thank you very much.
Admiral Hutson.
STATEMENT OF RADM JOHN D. HUTSON, USN (RET.), FORMER JUDGE
ADVOCATE GENERAL OF THE NAVY
Admiral Hutson. Mr. Chairman, Senator Levin, Senator
McCain, and members of the committee, thank you for inviting
us. It's nice to be heard on this subject.
In some respects, to echo what Senator McCain said, Plato
said that, ``Only the dead have seen the last of war.'' I think
that it's true, and we have to bear in mind that war is, in
some respects, but a prelude to the peace, and we have to wage
the war in such a way that we can endure the peace when it
comes. It's for that reason that there is little more important
right now than to get this straight with military commissions.
Military commissions have to be effective. I want to have
prosecutions of terrorists. I want that process to work. But in
order for it to work, the hearings are going to have to be full
and fair, and they're going to have to be consistent with the
mandates of Common Article 3 by ensuring that the judicial
guarantees that are considered to be indispensable by all
civilized people are observed.
There sits, on the bookshelf of every U.S. judge advocate
station anyplace in the world, a burgundy softcover book, and
that book is the envy of every military on the face of the
Earth. That book contains the Manual for Courts-Martial and the
UCMJ. That, I believe, has to be the starting point for this
discussion. To concur with General Romig, it is the starting
point. There will be modifications that will be necessary to
make. Those modifications should be very narrow, very specific,
well-articulated, and based on absolute necessity.
I testified yesterday at the House Armed Services Committee
and was overwhelmed with rhetoric about marines busting down
doors and having to stop in their tracks in order to give
Article 31 rights. That example, and others like it, came up
time and time and time again. Nobody, certainly not me, was
advocating for that position. We have to make exceptions. In
the rules of evidence, chain of custody, Article 31, Article
32, what the media loves to call, but is so much better--its
civilian equivalent of a grand jury, those kinds of things, by
smart, wise, dedicated drafters can be accommodated very
easily, I believe. In the end, we will end up with a process
that will actually work. We will actually get some
prosecutions, and the Supreme Court won't be beating us down in
the effort. We can be proud of what it is we have accomplished.
The rest of the world will watch it and say, ``They got it
straight. They got back on track. They came to realize what it
is they stood for, for all those years.'' Because what makes
this country great is not our military strength, great as it
is, or our economy, or our natural resources or island nature
of our geography. What makes us strong is who we are and what
we've stood for for generations. We must not lose that because
if we lose that, we will have lost the war, and it will all be
for naught.
Thank you. I look forward to your questions.
Chairman Warner. Thank you very much.
Colleagues, given that we have a very large turnout this
morning, I'd suggest that we adhere to the 6-minute rule in our
question period.
I want to assure the witnesses that, speaking for myself,
but I've been consulting with my ranking member, this committee
will not rush. This committee will offer the opportunity to
people with diverse opinions to come in and express them. We're
going to have a wide range of inquiries. I hope to have at
least one or two hearings before the July period is over.
During the summer months we may have briefings in lieu of
hearings, given that so many members will not be in the locale
of Washington, and then resume in September, with the hope of
providing the leadership with the thoughts of this committee,
and recommendations, either in the form of a bill or otherwise,
as directed by the leadership, early on in September.
I'd like to start off, we'll just go left to right. Again,
the question is--we come back to this--to the extent we can
follow the UCMJ. That's the basic premise that I've been
operating on. So, I'd let you, General Black, how would you go
about straightening out this situation, hopefully utilizing, to
the extent possible, the existing UCMJ?
General Black. Yes, sir. At the outset, I will tell you
that commissions are the right answer, in some form. Indeed,
what we have put together in the deliberative process, thus
far, is a good start, but that much of what we have in the
UCMJ, and, indeed, what we also can borrow from other sources,
such as the international criminal tribunals and elsewhere, can
create what I believe would be a perfect blend of rights and
responsibilities that would make us literally the envy of the--
not only the people of our country, but the people of the
world, in terms of the judicial process.
I believe that what we're looking for here is not a
document that starts from the UCMJ, or that is firmly founded
there, or on the commissions, as they exist today, or on the
international criminal tribunals, but a blend thereof. I think
that a talented group of bright people can achieve that goal in
a relatively short period of time, sir.
Chairman Warner. It's the intent of the Chair to hopefully
ask each of you, at some subsequent period, to put down, in
writing, your own views. I hope that you're not rigidly bound
by perspectives that eventually the administration comes up
with, and that you can provide your best professional advice to
the United States Congress.
We'll accept that as a preliminary, and I'll now turn to
the Admiral for the same question. Perhaps you could touch a
little more on the complexity of discovery, the ability to
provide witnesses, given that apprehensions take place on the
battlefield and those associated with our uniformed people
making that apprehension. Would they have to be subpoenaed back
over here in the course of trials? These are some of the
important issues that we have to ascertain. How do we protect
classified information?
Admiral McPherson. Thank you, Senator. You raise very
difficult questions. That's what we're paid for, is to answer
those difficult questions.
We don't believe that Common Article 3, which is the
departure point for the Supreme Court--requires we provide the
same panoply or extension of rights that our citizens Article
III courts or that our servicemembers enjoy under the UCMJ.
While the UCMJ can be a good starting point, there must be many
points of departure from there, for the exigencies of the
battlefield that you spoke of. What we should avoid is trying
to put a law enforcement overlay on these commissions. These
individuals, these unlawful combatants, came to us on the
battlefield. They didn't come to us through execution of a
search warrant in some city of the United States. There is a
basic difference between those two.
One of the areas you spoke of was discovery. I would urge a
distinction be made between discovery and evidence presented
against the accused. Common Article 3 requires that the
individual have access to, and the opportunity to review, the
evidence presented against them. It does not require that they
have the same discovery rights either under Article III of the
Constitution or under the UCMJ. Indeed, under the UCMJ there
are greater discovery rights than civilians have in civilian
courts. We have open-file discovery under the UCMJ. The
prosecutor is required to give their file, in its entirety, to
an accused. That's not required under Common Article 3. What's
required is that the accused in that commission have an
opportunity to review the evidence that's going to be presented
against them. I think that's a key distinction that we have to
keep in mind and that we ought to make.
At the same time, you raised the classified information
issue, as well. We have processes, under the UCMJ, under our
rules for court-martial, that deal with access to classified
information and how that classified information can be placed
in a public forum. We think not those same rules, but rules
similar to that, could be crafted for commissions. Whether they
be an ex parte review by the presiding officer who creates an
unclassified summary of the evidence, whatever it may be, we
think that bright people can come up with the rules that will
satisfy Common Article 3 in those proceedings.
Chairman Warner. Thank you, Admiral.
General, same question. Perhaps you might comment, or
subsequent witnesses comment, on the manner in which Common
Article 3 was put together. It seems to me that it leaves a
measure of latitude within which we can work.
General Rives. Yes, Mr. Chairman, thank you very much.
I agree with my colleagues that the UCMJ does provide a
great starting point. The UCMJ took effect on Law Day in 1951.
It replaced the systems that the United States had lived with
for well over a century. It provides a great system of criminal
justice, one that's second to none in the entire world. It
provides all of the protections that we expect for American
citizens, and it's only right that we provide those protections
to those who voluntarily serve their Nation in uniform. It's a
tremendous system that provides great protections, and it's
geared toward the American system of justice that's designed
toward protecting the rights of the innocent, even if it means
that some guilty people go free. We have very careful
safeguards for evidence and the type of evidence that can be
admissible in a court-martial.
It's important to realize that, while we're totally
supportive of the UCMJ as providing a structure, there are
various tribunals called for under the UCMJ. Provisions
throughout the UCMJ recognize the procedural and substantive
rules for courts-martial. Article 135, in particular, addresses
courts of inquiry.
My own proposal is that we come up with military commission
rules, and maybe a manual for military commissions, under the
UCMJ. Perhaps we have an Article 135(a) for military
commissions that will detail the basic outlines that Congress
wants us to include as substantive requirements, and then
permit an executive order to have the details, just as we have
the Manual for Courts-Martial with the details.
You asked about Common Article 3, and my starting point
with that is, Common Article 3 provides standards for basic
decency. Most recently, the Detainee Treatment Act (DTA) of
2005 recognizes and reaffirms; provides a baseline that the
United States military has always trained to and has always
insisted on adherence to. You do get into some tricky issues if
we permit the readings that other people give to some of the
provisions of Common Article 3.
Chairman Warner. I'm going to have to ask that you yield. I
want to get a brief response from the others. We'll come back
and give you full opportunity.
General? Your basic summary.
General Sandkulher. My basic summary would be that it's a
balancing. We have a military commissions procedure that was
established that attempted to provide the fundamental rights.
We have the UCMJ, which we know is the gold standard, that
achieves the protection of fundamental rights. My view is that
we are looking for a leveling between the two. In my
perspective, if we start from the UCMJ, that's a method. If we
build up from the military commissions as they exist today,
that's another perspective that I think could be workable. Both
require detailed examination. We talked about some of the
items. Admiral Hutson mentioned Article 31 rights. Article 31
exists in the UCMJ. We have to address how we handle that with
regard to military commissions.
Chairman Warner. Good. Thank you.
General Romig?
General Romig. Thank you, sir.
As I said, I think that the court-martial process needs to
be the baseline for the structure, and then looking at each one
of the procedures and processes to see if they make sense for
the unique environment of the battlefield.
Traditionally, military commissions always started with the
existing processes they had at that time for court-martial. I
see that that is what we ought to be doing here, taking what we
have, and adapting it to the unique environment. I think that
can be done.
Chairman Warner. Good.
Admiral Hutson. I think it's interesting, Mr. Chairman,
none of us are all that far apart.
Chairman Warner. No, I observed that.
Admiral Hutson. I think there's some basis for that.
Chairman Warner. There certainly is no consensus here to
just rubberstamp what's in place and just go on about our
business.
Admiral Hutson. That's absolutely right.
The UCMJ, as great as it is, didn't come down from Mount
Sinai on a stone tablet. We can modify it. That will be okay to
do that. The heavens won't open.
Common Article 3 says, in pertinent part, ``a regularly
constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.'' I
submit that there is no part of that, that the United States of
America should try to get around. That should be the touchstone
that we're always looking at. Does this comply with that?
With regard to the UCMJ and the rules of evidence, for
example, I think that evidence that comes in to be considered
has to have an apparent authenticity and an apparent validity.
For lawyers, that's a reasonably measurable standard.
No matter how apparently valid or authentic, no coerced
evidence is admissible.
Chairman Warner. Right. Thank you.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
I think, as Admiral Hutson said, there is not much
difference between you. You all basically either believe that
the UCMJ should be the starting point, and then exceptions
should be crafted based on necessity, or some of you believe
that it ought to be a blend with two or three starting points,
the UCMJ being one of them, the current rules of the
commissions being a second starting point, and perhaps
international tribunal procedures being a third starting point.
Is it fair to say that none of you believe we should simply
ratify the current commission and their procedures? Is that a
fair statement?
General Black?
General Black. Yes, sir.
Admiral McPherson. Yes, sir. I think doing that would not
fulfill Common Article 3.
Senator Levin. All right.
General Rives?
General Rives. Yes, Senator. Clearly, we need to change.
General Sandkulher. Yes, sir.
Senator Levin. General Romig?
General Romig. Yes, sir, absolutely.
Admiral Hutson. Yes, sir.
Senator Levin. Okay. So, it seems to me that is a critical
starting point, is that none of you believe, as apparently some
in the administration believe, that we should just simply
ratify the current commission procedures and their operations.
Now the question is, in what areas, as the chairman says,
should we then revise, in effect, based on necessity, the
procedures that exist either in UCMJ, the courts-martial
manual, or in those other sources? Would you agree that those
revisions should be based on practicality and necessity, and
not convenience, as the way the Supreme Court said it?
Admiral Hutson?
Admiral Hutson. Absolutely. Yes, sir.
Senator Levin. General?
General Romig. Yes, sir.
Senator Levin. Would you agree, General?
General Sandkulher. Yes, sir.
General Rives. Yes, sir.
Senator Levin. Admiral?
Admiral McPherson. Yes, sir.
Senator Levin. General?
General Black. Yes, sir.
Senator Levin. Okay. I also want to pick up something that
the chairman said, that we would be asking you to cooperate
with us and the other panels in looking at those areas where
exceptions need to be made based on necessity of war and the
differences between a criminal trial before a commission and a
court-martial. We would need you all to work with us. My
request, particularly to the four of you still in uniform,
would be that you would give us your personal and professional
opinion.
General Black. Yes, sir.
Admiral McPherson. Yes, sir.
General Rives. Absolutely.
Senator Levin. I'll ask the two of you, but that's not
necessary, you not being in a uniform anymore.
General Romig. Certainly.
Chairman Warner. If I could interrupt, that's the standard
practice of this committee with regard to certain categories of
flag and general officers when they come before us, and also
high-ranking civilians. We're asking of you no more than we
seek of the current incumbents.
Thank you, Senator.
Senator Levin. It is part of the oath that you take when
you appear in front of this committee and we very much
appreciate that.
In addition to having access to evidence, as one of you
said, that is going to be used, and be able to confront the
evidence that will be used, would you agree that there may be
exculpatory evidence that someone who's being tried for a
crime--and I emphasize this, because there's some confusion out
there--we're talking about criminal trials, we're not talking
about detention; we're talking about criminal trials here--
would you agree that except for based on necessity or national
security exigencies--someone who's tried for a crime should
have access to exculpatory evidence?
Admiral?
Admiral Hutson. Absolutely. Yes, sir.
General Romig. Absolutely.
Senator Levin. General?
General Sandkulher. Yes, sir.
General Rives. Yes.
Admiral McPherson. Yes, sir.
Senator Levin. Okay.
General Black. Yes, sir.
Senator Levin. That, then, raises the question of the
discovery. At least to the extent that access to exculpatory
evidence is important, it's an important answer for all of us.
In terms of the structure of the military commission
process--and this is something Justice Kennedy expressed great
concern about in his concurring opinion--is the composition of
military commissions and the process for appealing decisions of
military commissions through the DOD and up to the President--
according to Justice Kennedy, the structural differences
between the existing military commissions and courts-martial--
one, the concentration of functions, including legal
decisionmaking, in a single executive official; two, the less
rigorous standards for composition of the tribunal; three, the
creation of special review procedures in place of institutions
created and regulated by Congress--all, in his opinion, removed
safeguards that are important to the fairness of the
proceedings and the independence of the court. He went on to
say that there's no evident practical need to explain the
departures.
Then, Justice Stevens, speaking for the Court, specifically
endorsed that portion of the concurring opinion of Justice
Kennedy.
Do you, personally, agree with Justice Kennedy and Justice
Stevens that deviations from court-martial processes in the
structure of military commissions, and the process for
appealing commission decisions, could undermine the fairness
and independence of the process? For instance, is there any
practical need to permit the selection of a person other than a
judge to be the presiding officer of a military commission?
Admiral Hutson?
Admiral Hutson. I concur with that completely, and that's
one of the reasons I would use the UCMJ as the starting point,
partly because that is a regularly constituted court. It also
has passed close scrutiny, time and again, by the Supreme Court
of the United States. Deviations from that, particularly with
regard to the body that's constituted, the court itself, and
the appeal process, are unnecessary and undermine the
likelihood of it being endorsed either by the international
community or, more importantly, by the United States Supreme
Court.
Senator Levin. Okay.
General?
General Romig. Yes, sir, I do. This is one of the issues
that we advocated early on, that we need to have a military
judge that rules on the law, you need to have a panel that
rules on the facts, and you need to have independence of the
military judge. We've come a large way that way in the military
orders that were published both in 2002 and then in 2005, but
we're still not there. The better idea is, let's start with the
structure we have in the court-martial process, and then go
from there.
Senator Levin. Have a judge----
General Romig. Absolutely.
Senator Levin. Okay.
General? Quickly. My time's up. If I could get answers from
each of you.
General Sandkulher. Sir, in practical effect we are using
military judges now, those that were convened already, but
it's----
Senator Levin. But that is important, in your judgment?
General Sandkulher. It's important to have a military judge
present, yes, sir.
Senator Levin. And presiding?
General Sandkulher. Yes, sir.
General Rives. I would call the presiding official
``judge'' instead of ``presiding official.'' I believe that all
of the judges ought to be certified, in accordance with Article
26 of the UCMJ, as general court-martial judges.
Senator Levin. Thank you.
Admiral?
Admiral McPherson. I agree that the military judge should
be the presiding official. But I disagree with utilizing the
UCMJ for appellate purposes. I think the scheme that was worked
out under the DTA of the DC Circuit Court is the right answer.
Senator Levin. Which we adopted here, overwhelmingly. Yes,
sir.
General?
General Black. I believe we should have certified judges
and independent judicial review, sir.
Senator Levin. Thank you.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator Levin.
Senator McCain.
Senator McCain. I want to thank the witnesses. I think
that, so far, we have established that the witnesses believe
that the UCMJ is a good framework from which to begin, but
taking into full consideration--as one of the witnesses said,
this is not someone who has been arrested for shoplifting; this
is an enemy terrorist, or alleged enemy terrorist, and certain
provisions of the UCMJ would not apply. Is there anyone who
disagrees with that assessment of your testimony so far? [No
response.]
On the issue of Common Article 3, the DOJ representative
said, yesterday, that Common Article 3 ``prohibition of
outrages upon personal dignity''--in particular, ``humiliating
and degrading treatment''--is a phrase susceptible of uncertain
and unpredictable application. He went on to say that the
Supreme Court has held that interpreting treaty provisions such
as Common Article 3, the meaning given by international
tribunals and other state parties to the treaty, must be
accorded consideration; therefore, this would create
uncertainty.
Isn't it true, General Black, that all international law--
that courts are take in consideration the views held by other
parties, but the views held by other parties are not binding--
interpretations given by foreigners are not binding on the
United States interpretation?
General Black. Yes, sir, that's correct.
Senator McCain. Do you agree with that? General Black, do
you believe that Deputy Secretary England did the right thing
by, in light of the Supreme Court decision, issuing a directive
to DOD to adhere to Common Article 3? In so doing, does that
impair our ability to wage the war on terrorism?
General Black. I do agree with the reinforcement of the
message that Common Article 3 is a baseline standard. I would
say that, at least in the United States Army, and I'm confident
in the other Services, we've been training to that standard,
and living to that standard, since the beginning of our Army,
and we continue to do so.
Senator McCain. Admiral?
Admiral McPherson. It created no new requirements for us.
As General Black had said, we have been training to, and
operating under, that standard for a long, long time.
Senator McCain. General?
General Rives. Yes, I agree.
General Sandkulher. Yes, sir, my opinion is that that's
been the baseline for a long time, sir.
General Romig. Yes, sir, that's the baseline. As General
Black said, we train to it, we always have. I'm just glad to
see we're taking credit for what we do now.
Admiral Hutson. I agree with what was said, but I'd point
out that the President, on February 7, 2002, said that Common
Article 3 did not apply. Although we've been training to it and
so forth, I think this is an important, if only perhaps
symbolic, change of policy by the administration, that I
welcome.
Senator McCain. A foreign court's interpretation of Common
Article 3, as the Supreme Court says, should be considered, but
would not be binding. Is that correct?
Admiral Hutson. Yes, sir, Senator. It is, indeed. There are
lots of terms in the law--probable cause, reasonable doubt--
that are susceptible to interpretation. The concerns with the
interpretation of ``humiliating and degrading treatment'' arise
only when you are very much pushing the envelope. If you're
staying comfortably within the meaning and texture of Common
Article 3, it's not going to be a problem.
Senator McCain. I want to ask the obvious, General--we'll
go back down this way. What we do, isn't it very important that
we consider what other nations may interpret the Geneva
Conventions and the treatment of prisoners in the case of our
service men or women being taken captive?
General Romig. Yes, that's correct. What we do could
influence what they do. It's important that we set the higher
standard.
General Sandkulher. Yes, sir. I would like to go back to
your point you were making before, about the foreign
interpretation. We all agree that the foreign courts'
interpretations do not control. However, there are developments
that occur around the world that do impact how those words are
interpreted, and there should be close consideration of the
point made by the DOJ representative as to how other forums are
interpreting that and how others will think that we should
interpret that.
Senator McCain. But we are not bound.
General Sandkulher. We are not bound, but it becomes
influential.
Senator McCain. The way that the international criminal
court has become influential, in some ways, is that----
General Sandkulher. Yes, sir, and other forums. There's
many other agencies out there who look at this language, and
are giving meaning to the language, that we should be careful
to recognize and set ourselves apart from.
Senator McCain. We'd better be very careful how we
interpret it, to make sure that any foreign court or
constituted body would have any influence on our decisions, as
far as the men and women of the American military are
concerned.
General Sandkulher. Yes, sir.
Senator McCain. General, could I just ask----
Chairman Warner. Would you suspend, just a minute?
I ask the persons in the rear of the room--you've had the
opportunity to silently make your statement--you have the
option now to quietly join the audience or I'll ask the
officers to escort you peacefully from the room.
Please resume, Senator McCain.
Senator McCain. General?
General Rives. Senator, I agree that the interpretations of
other nations in international courts are only matters for
consideration by our courts. I also agree that it's critically
important for us to hold ourselves to the highest standards so
no one looks to us to say we lowered the standards, in the
appropriate treatment of prisoners of war (POW), in particular.
Senator McCain. You agree, Admiral and General, we ought to
be able to work through this in a way that doesn't bounce us
back to the Supreme Court, and then back again, to accommodate
their instructions?
General Rives. I do. I read the Supreme Court opinion as
looking for further guidance from Congress, should you decide
to give it, in this area.
Senator McCain. Admiral?
Admiral McPherson. I agree, Senator. I have two points. One
is, currently the UCMJ and the Manual for Courts-Martial (MCM)
direct our attention to international law--specifically, the
law of war--as a consideration in interpreting other provisions
of both those documents. That's not new for us. We've been
doing that since we came on Active-Duty.
The second point is, I think what you say is very
important, in that it speaks to the need to take very careful
and deliberate action in drafting and passing this legislation.
It shouldn't be something we rush to. I like the timeline that
you, Senator Warner, have laid out. That gives us time to, in a
partnership with this body, come up with the right answer.
Senator McCain. General Black?
General Black. Yes, sir. I agree that we are not bound by
the interpretations of other countries. I also agree that we
can work through this in a meaningful and purposeful way. You
said it best, sir, in your opening statement: setting the bar
high protects our future generations of soldiers, sailors, and
airmen.
Senator McCain. I thank you, Mr. Chairman. I want to
especially thank all the witnesses. I think they have been
extremely helpful today with the collective 100 years or more
of experience here before us today. I thank the witnesses.
I thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator McCain. I'll join you
in the observation. We are very privileged. I think it was a
good way to have a starting point for this hearing.
Now, Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
Gentlemen, I join in welcoming you. I want to join with
others to say how constructive and helpful you have been to not
only our committee, but to the military and to our country.
This has been enormously positive and helpful for all of us. I
thank you for your service--as Senator McCain said, about 100
or 120 years of experience that are before us, and a remarkable
amount of commonality and viewpoints.
Sitting here today, I was wondering, how did we ever get it
so wrong? How can we protect it, that we don't get it wrong in
the future? As I was sitting here and listening to all of you,
I just said, ``if your voices, your counsel, your ideas, so
powerful here among Republicans and Democrats alike, have been
over there in positions of responsibility, how is it that the
DOJ has prosecuted--261 defendants have been convicted or
pleaded guilty in terrorism or terrorism-related cases, and we
have 560 of which only 4 have been charged, and no one has been
convicted? Why is it that we have this so wrong? What can we
learn from that experience that isn't going to interfere with
trying to make sure that we're going to get it right in the
beginning? That's a question.
There are several members of the panel here that have been
there right from the very beginning when what they call the MC-
01 was published. We have had articles that have been written,
the most comprehensive one in the New York Times on October 24,
2004, by Tim Golden, ``After Terror, A Secret Rewriting of
Military Law.'' In that article, there are references to a
number of those of you who are sitting here being involved in
working groups, that you submitted your views. I'm sure a
number of those views were similar to what you've said today.
Nonetheless, we had the publication of commissions that came
out. What went wrong there? What can we learn from that
experience so that we're not going to have it repeated, in
terms of the future? We're going to delay the prosecution and
bringing to justice those that ought to be prosecuted and
brought to justice?
I'll start with General Rives. Would you comment?
General Rives. Thank you, Senator. It is critically
important to get this right. I believe one of the problems with
proceeding more quickly had been a desire to make sure we got
it right.
The uniformed professionals, the Judges Advocate who
participated in working groups, have certain ideas. As the
committee here has asked, we have used our independent voices
to tell what we really believe is the right way to go.
Ultimately, we're not the decisionmakers. The political leaders
in the Pentagon make a number of decisions. All we can ask, I
suppose, is that they give us the opportunity to be heard, and
that they listen to and consider our inputs on these matters.
Senator Kennedy. General Sandkuhler?
General Sandkulher. Sir, I would repeat some of what
General Rives said. We have been involved with the working
groups. The atmosphere post-September 11 was different from the
atmosphere today. We worked hard to make sure that we got it
right. We gave our voice to concerns, and we were heard.
Decisions were made. I think I would equate it to: sometimes
legislation doesn't achieve the expected goal, and you have to
go back and correct that. Unfortunately, we're here today.
Senator Kennedy. In the New York Times article, it talked
about a group of experienced lawyers who had been meeting with
Mr. Haynes, who's a general counsel, repeatedly on the process,
began to suspect what they said did not resonate outside the
Pentagon, several of them said. On Friday, November 9, 2001,
officials said, Mr. Haynes called the head of the team, Colonel
Lawrence J. Morris, into his office to review a draft of the
presidential order. He was given 30 minutes to study, but not
allowed to keep a copy, or even take notes. The following day,
the Army's Judge Advocate, Major General Romig, hurriedly
convened a meeting of senior military lawyers to discuss the
response. The group worked through Veterans Day weekend to
prepare suggestions that would have moved the tribunals closer
to the existing military justice. When the final document was
issued that Tuesday, it reflected none of the officers' ideas.
Several military officials said they hadn't changed a thing,
one official said.
Is that fairly accurate?
General Romig. Yes, sir, it is.
Senator Kennedy. Would you say that your suggestions or
recommendations--can you provide for us, to the committee, the
copies of your comments, and analysis on the military
commissions from 2001 to 2002?
Chairman Warner. I think the question has been put. We
should allow the witness time to reflect and take such
consultations as need be to respond. Would that be agreeable to
the Senator? I would suggest he respond to that for the record.
Would you feel more comfortable with that, General Romig?
General Romig. Yes, sir.
Let me give it a little background--there was a long
process. Prior to that November presidential order, we were
engaged in doing research. We were essentially looking at the
historical precedents and putting together and it was a very
tentative product at that time--recommendations on where we
thought we should go.
You're correct, Colonel Morris headed that effort. He was,
and still is, a great young colonel--not as young as he was
then, but still a great colonel. As we went through the
process--you're correct, there was a meeting on that weekend.
We actually met at my house. We were not allowed to have copies
of that document. Our comments were oral comments--they were
not written comments--back through Colonel Morris.
After the order came out, there was an extended period of
time where we worked on the first military order. There was a
lot of back and forth as to what are the correct procedures--
given we now have this order that we have to live with that
sets out the structure and some of the procedure and processes
very superficially, but, nevertheless, sets them out. It was
our impression that a lot of that paralleled what was done in
the Quirin case, the Supreme Court case in 1942.
We were able to get a lot of due process back into the
first product. There are literally hundreds of memos and things
that went back and forth. There were working groups that met.
Senator Kennedy. My time is up, but finally, maybe Admiral
Hutson, were the final and ultimate decisions made by the Judge
Advocates General (JAGs), the lawyers, or by the politicians?
Admiral Hutson. Sir, I'm sorry, I was gone. I retired in
2000. So, I'm not able to go.
General?
General Romig. As is always the case, they ultimately were
made by the civilians.
Senator Kennedy. Thank you.
Chairman Warner. Senator Kennedy and other colleagues, the
committee will, in consultation with each of these witnesses,
seek to get as much material as we can regarding the decision
process as we move along in this hearing. In no way am I trying
to curtail any member or the committee's ability to probe and
ascertain all the facts that are relevant to the challenge
before us.
Senator Kennedy. Great, thanks.
Chairman Warner. Thank you, gentlemen. Why don't you take a
seventh-inning stretch. We are paid to vote. That's what we're
going to do.
[Recess at 11:05 a.m.]
[Resumed at 11:15 a.m.]
Senator McCain [presiding]. If the witnesses would return,
Senator Warner is on his way back. In the interest of not
taking too much time of the witnesses' time, we'll go ahead and
reconvene. We'll have those West Point cadets be quiet down
there. I'll tell you, if they were Naval Academy guys, they'd
have been quiet. [Laughter.]
Thanks for being here today, guys.
I would like to ask Senator Graham if he would like to go
ahead and be recognized.
Senator Graham. Thank you, Mr. Chairman.
Gentlemen, you just make me proud to be a part of the JAG
Corps. I think you represent not only the best in military
officership, but also the best in what we're trying to
accomplish as a Nation in the war on terrorism.
I want to start with Senator McCain's line of questioning.
Simply put, with appropriate definition to how Common Article 3
will be applied domestically, can we win the war and still live
within Common Article 3?
General Black. Yes, sir.
Admiral McPherson. I agree with that, yes, sir.
General Rives. Yes.
General Sandkulher. Yes, sir.
General Romig. Absolutely, sir.
Admiral Hutson. Yes, sir, in fact, I'd turn it around and
say I don't think we can win the war unless we live within
Common Article 3.
Senator Graham. That's probably a better way to put it.
Let's start with that general framework, that we can, and we
must, win the war using our value systems, because if we change
who we are to win the war, then I agree with you, Admiral
Hutson, we've lost.
Now, the military commission infrastructure that we're
talking about comes from the UCMJ, is that correct, General
Rives?
General Rives. Yes.
Senator Graham. It's my understanding that the reason
Congress made available military commissions to try war crimes
in the code itself is because we were not very proud of the
products that were going on before it was part of the code, in
World War II and some other cases, where the trial procedures
were less than adequate. Is that correct?
Anybody. Is that correct, Admiral Hutson?
Admiral Hutson. Yes, it.
Senator Graham. As a matter of fact, Congress made a
conscious decision after World War II, in 1951, when the code
was enacted, that we're not going to go down that road again.
We're going to make military commissions an option, but we're
going to give some structure to them that we'll feel more
comfortable with, as a Nation. Does everyone agree with that
concept?
That structure was envisioned by Congress to have, as its
baseline, similarity or uniformity where practical to the
underlying document, the UCMJ. Is that correct, General Black?
General Black. Yes, sir.
Senator Graham. So, Congress understood there would be two
forums available in a time of war for the United States
Government through its military to operate within--one, the
UCMJ, to try our people for any alleged misconduct engaged in
by our people, using the UCMJ, and realizing that other people
may be tried, in terms of law-of-armed-conflict violations that
are not part of our military, but the military would conduct
those trials; thus, creating the military commission as a
second forum. Do you all agree with that?
Let the record reflect yes.
It seems to me the Court understands that, equally; and
that my belief has been--since our first time we met here--that
for us to get it right we need to have military commissions as
uniform as possible with the UCMJ, because that's the root
source of the law of military commissions. Is that correct?
An affirmative answer by everyone on the panel.
Understanding needs to deviate--as Admiral Hutson has
indicated, need to be well-articulated and well-defined. Does
everyone agree there will be times when you need to deviate
from the UCMJ when it comes to a military commission trial
venue?
General Black. Absolutely.
Admiral McPherson. Absolutely.
Senator Graham. The international criminal court has
hearsay rules far more lax than the UCMJ or the Federal Rules
of Evidence. Do you all agree with that?
General Black. Yes, sir.
Admiral McPherson. Yes, sir.
Senator Graham. Would you agree that one of the things we
might do is look at the international criminal court's hearsay
rules when it comes time to create hearsay legislation for
military commissions?
General Black. Yes, sir.
Admiral McPherson. Yes, sir.
Senator Graham. Is that okay with you, Admiral Hutson?
Admiral Hutson. Yes, sir.
Senator Graham. We're not going to take the whole 6 minutes
writing the law. What I would like to reinforce to the
committee members, that I think this panel has it right, that
this panel represents military expertise and legal knowledge
not possessed by many. They are unique. But what they possess,
more than anything else, Mr. Chairman, is, they don't have any
ax to grind. They're not going to get elected in November. They
don't have to worry about political appointments. They have to
just worry about following the law and being a good officer,
and, in your case, being good citizens.
Now, the more problematic area, for me, is the application
of Common Article 3 in terms of it not being a regularly
constituted court. We could give you a regularly constituted
court that meets human dignity standards really quickly, but
we're not going to do it quickly, we're going to do it really
thoughtfully. When it comes to the techniques that would be
applied to interrogating non-uniformed personnel--al Qaeda
members, Sheikh Mohammed and people like him that are the
masterminds of September 11--that is a different arena. Sheikh
Mohammed is not a member of a uniformed service representing a
sovereign nation; he is a terrorist whose battlefield includes
the schoolbus, the schoolhouse, and any and all institutions
that represent democracy.
Having said that, it is not about Sheikh Mohammed and his
way of thinking; it is about us. When he falls into our hands,
it becomes about us. Can we prove to the world that we're
different than Sheikh Mohammed? One of the ways to do it would
be how we treat him. I would like to aggressively interrogate
every al Qaeda member to make sure that our Nation is defended
and still live within the spirit of who we are.
Admiral Hutson, could you give me some ideas of how we
could do that?
Admiral Hutson. I think that that is absolutely necessary,
because, you're right, we need to be able to interrogate
people, we need to be able to get intelligence information from
them. The question of interrogation and gaining intelligence
information is a somewhat different question than prosecution.
Senator Graham. Don't you think it's the hardest question
that we face as a Nation?
Admiral Hutson. That's right. We made a decision, as a
Nation, that we were going to treat terrorism, henceforth, as a
war, rather than as a criminal activity. I think that was the
right decision.
Senator Graham. Yes.
Admiral Hutson. It is, in itself, a new paradigm, which
carries with it certain difficulties that we need to be able to
address. One of those difficulties is that we have decided
that, during the course of this war, during the prosecution of
the war, we also want to prosecute people criminally. Those two
things don't exactly match.
Senator Graham. Right.
Admiral Hutson. We need to be able to figure out where to
draw the line, how to make those kinds of distinctions so that
we can both prosecute the war successfully and prosecute, to
use the verb in a different way, judicially, the terrorists.
Senator Graham. Well said. I would ask your input on how to
do that. I know my time's up, and I apologize, Mr. Chairman;
this is my last line of inquiry--title 18 of the United States
Code makes it a felony for a military member or civilian to
violate the Geneva Convention. Is that correct? Punishable by
death.
General Rives. To violate Common Article 3.
Senator Graham. To violate Common Article 3, even more
specifically. The dilemma we have now is, we need to look at
title 18, in terms of the Hamdan decision, and we need to make
sure that those that are on the front lines of interrogating al
Qaeda members have enough guidance so that they will not
inadvertently put themselves in legal jeopardy.
I would ask the panel to help us find a way to reconcile
the standards of title 18, which makes it a felony for our
troops to violate Common Article 3, and how we write this
statute, because I think the more specific the statute, the
better the guidance to our troops. The thing about the treaty
that probably needs to be reined in is to give some structural
definition to it when it comes to domestic law application. I
would ask for your input, because, to me, that's the hardest
challenge the committee faces.
General Rives, you were involved in a working group, back
in January 2003, about interrogation policies. Is that correct?
General Rives. That's correct, Senator.
Senator Graham. As a matter of fact, you and other Judges
Advocate strenuously objected to the interrogation techniques
being proposed in December 2002, because you thought they would
violate the UCMJ if our personnel engaged in those techniques.
Is that correct?
General Rives. We had a number of objections, yes, sir.
Senator Graham. Okay. The final product that came out, in
April 2003, did you ever see that product?
General Rives. I saw the April 2003 report about 14 months
after it was issued. No one in Air Force JAG had seen it before
then, to my knowledge.
Senator Graham. Thank you very much.
No further questions.
Chairman Warner [presiding]. Colleagues, we'll now turn to
Senator Dayton.
Senator Dayton. Thank you, Mr. Chairman. Thank you for
convening this very important hearing. I thank you, also, for
what you said at the outset about the need to proceed on this
in a deliberative and bipartisan way.
Having said that, I think it's also important that we
recognize that what we're discussing here today, the parameters
of what you gentlemen are recommending to us today, is a very
major departure from the practices of the administration to
date. I thank the Supreme Court for this imperative. I think
it's long overdue that Congress asserted itself in this area.
Now we have the opportunity and the requirement to do so.
We have a situation where we have people who have been held
now for over 4 years, in some instances, at some indeterminate
locations, in some cases, that have been subjected to what some
people allege is torture in part of their interrogation. Would
it be possible, under our UCMJ, to now introduce or assimilate
these people into a new or revised set of procedures?
Anybody care to respond?
General Black. Yes, sir, I believe it could.
Senator Dayton. All right.
General Black. We can do that. We can make a transition
from where we have been to a new and revised commissions
process, and do so successfully.
Senator Dayton. If those alleged actions had occurred to
someone who is under the province of the UCMJ, would that be,
then, allowed to give that person a, ``fair'' trial, or would
that disqualify or unduly prejudice the case against that
individual?
General Black. I think you've lost me a little bit there,
sir.
Senator Dayton. If we had done to one of ours who was
supposed to be treated according to the UCMJ, which I believe
you're recommending, or Common Article 3 of the Geneva
Convention--if we had violated either of those by our treatment
and by the length of time we detained that person, would that
compromise, or would that disqualify, a trial or adjudication
of that individual?
General Black. Sir, if you're asking whether a person who's
been in our custody, and presumably facing commissions, could,
in a subsequent iteration of the commissions, challenge their
continued detention, I think the rule should be drafted to
allow something like that.
Senator Dayton. Anyone else?
Admiral Hutson. One of the great strengths of the UCMJ and
the case law that emanates out of that is that there are some
very strong protective rules with regard to speedy trial.
That's one of the things that we would have to address, in
terms of modifications, because there are presumptions with
regard to speedy trial after 120 days, so that somebody who's
been in a dark, dank hole for 4 years is going to run into
speedy-trial issues, I suppose, and that would have to be
addressed.
As I said earlier, I think it is absolutely imperative that
we draw a bright line prohibiting coerced evidence of any kind.
In the hypothetical that you pose, that may create problems, in
and of itself. The answer to the basic question of ``could we
use this system for those people?'' is yes.
Having said that, are you going to get a conviction when
you exclude evidence and you go through all the other things
that we would impose into the system? The answer is, I don't
know.
Senator Dayton. Anyone else?
General Rives. Senator, it depends on the procedural rules
that we adopt. For example, if we use the court-martial
processes, evidence obtained through torture would not be
admissible, clearly. For the commission rules, it depends on
what processes we have. If we say that evidence obtained
through torture is not admissible for any purpose, that
evidence would not be admissible, but we may be able to get a
conviction based on independent evidence that was not acquired
by means of torture.
Senator Dayton. We have to speculate, to some extent. Given
the spectrum of individuals that are in custody throughout the
world, their alleged actions, can we devise one system of
procedures that will apply to all of those cases, or are we
going to have to devise multiple systems based on different
situations and people?
Admiral McPherson. I think we can devise one system that
would apply to all, but I think, realistically, there may be
some individuals that the evidence is such that we simply could
not prosecute them; we have to be willing to embrace that
eventuality, as well.
Senator Dayton. What do we do in those instances?
Admiral McPherson. I think we continue to hold them until
the cessation of hostilities, in accordance with the Geneva
Convention.
Senator Dayton. That, ``the cessation of those
hostilities,'' being what we define as the war against
terrorism.
Admiral McPherson. That's correct. Yes, sir.
Senator Dayton. Okay. Anyone else care to respond? [No
response.]
No further questions. Thank you, Mr. Chairman.
Chairman Warner. Thank you very much.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
You announced at the beginning that this is the first of a
series of hearings that we're going to have. I see some dangers
in this, because some of the responses that we've gotten, some
of the opinions that we've received here, some people at this
table, and others, are going to go dancing to the media and say
that we now know where we're going to go with this thing, when,
in fact, we don't.
About half of you, in your opening statements, talked about
baselines, that you're going to use either Common Article 3 or
the UCMJ. Now, the chief criticism that we hear from people,
the hysteria that hit the media right after the United States
Supreme Court decision, was that we are going to be affording,
as we would do, I suppose, if we used as a baseline--or this--
could be interpreted this way--the UCMJ--in affording the same
privileges and defenses and--for the terrorists as we would for
our own troops. For those of you who are talking about using
that as a baseline, I assume this is not where you want to end
up. Is that correct? I can't remember which one of you said
that you wanted to use that as a baseline.
General Romig. Senator, I was one of the ones that said
that. I also said that we needed to look at those things in the
UCMJ that did not make sense, that would not work, and should
not be applied to military commissions, given the environment
that these people come from, the battlefield. Do you have
evidence that you can use on the battlefield? Do you have chain
of custody, like you have in a search-and-seizure that you
might have in the civilian life? Those all need to be looked
at. I still think we could, as a baseline, using the structure
and the processes and procedures, start with the UCMJ, and then
look at those things that don't make sense.
Senator Inhofe. Still you would say that we're not going to
be affording them the same privilege as our own troops.
General Romig. It depends on what it is.
Senator Inhofe. Okay.
Those of you who said you wanted to use Common Article 3, I
know what's going to happen on that, too. There are going to be
people going to the media and saying, ``all right, they all
agreed,'' because you all did say you are training toward
Common Article 3. You didn't say, necessarily, that we are
already there, but we could achieve that. My concern--and I
would believe that some of the terms in Common Article 3 are
inherently vague, is exactly what does ``humiliating
treatment'' mean? What does ``degrading treatment'' mean? Is
there any specific written guidance that the armed services
have developed to give definition to these terms? Do you all
have firm definitions of these terms that you think we could
train to? Do you see that they are vague, or not vague? Are
they specific in your minds?
Admiral Hutson. Senator, legal terms and other sorts of
terms are inherently vague and need a certain amount of
definition. Part of the definition comes from the Army Field
Manual. Part of the definition comes from 200 years of
tradition. But, as I said earlier, the problems are going to
arise when we're pushing the envelope. If we stay comfortably
within it, we're not going to have to worry so much about it.
We can't let the inherent unavoidable vagueness of all of these
terms such as ``torture,'' stop the effort, however. I think we
have to work toward defining them as best we can, and
explaining them to the troops. I'm worried about the boots on
the ground.
Senator Inhofe. That's exactly why I'm bringing this up.
These guys are out in battle, they're going to have to have, in
their own mind, a definite determination as to what these terms
mean.
Admiral Hutson. Absolutely.
Senator Inhofe. What do you think, General?
General Sandkulher. Sir, I'd like to go back to the
training level of the people in the field. When we train
marines, soldiers, sailors, and airmen, when we talk about
handling people that we grab or get on the battlefield, we're
normally talking about in context of the Geneva Conventions
regarding POWs. Our training levels are generally to the POW
standards. When we take somebody on the battlefield, we are
applying those standards, which are far higher than Common
Article 3.
I cannot recall for you a document that defines ``inhumane
treatment'' or ``humiliating acts'' that ousts in our panoply
of----
Senator Inhofe. Okay. Our time's running out here. Let's
get back to the----
Chairman Warner. I want to make sure the recorder got the
last of your sentence. You cannot recall----
General Sandkulher. I can't recall, Senator, a document
that defines ``inhumane treatment'' or ``humiliating acts.'' I
don't know if we have one out there that has a listing of--we
may have examples of what could constitute it, but I can't
think of a definition, off the top of my head. That would be
something for the record that we could respond to.
[The information referred to follows:]
General Sandkuhler was correct in that the Department of Defense
(DOD) did not have a document defining ``inhumane treatment'' or
``humiliating acts.'' There were, however, several documents used by
the Services that addressed those issues by listing examples of
prohibited acts.
For instance, at the time of Brigadier General Sandkuhler's
testimony, Army Field Manual (FM) 34-52, September 28, 1992, was in
effect and governed interrogation procedures for DOD. It was referenced
in the Detainee Treatment Act (DTA) of 2005, as the guiding document
for interrogations. This document was superseded by FM 2-22.3, on
September 6, 2006, states that the Geneva Conventions and U.S. policy
``expressly prohibit acts of violence or intimidation, including
physical or mental torture, threats, insults, or exposure to inhumane
treatment as a means of or aid to interrogation.'' (See FM 34-52, page
1-8).
FM 34-52 does not give a definition of ``inhumane treatment,'' but
the document does set forth specific examples of physical torture,
mental torture, and coercion. It also lists articles of the UMCJ that
may be violated if interrogators were to cross the line. (See FM 34-52,
page 1-8, and Appendix A). Figure 1-4 (page 1-11) of FM 34-52, also
lists pertinent articles of the Geneva Convention Relative to the
Treatment of Prisoners of War, which must be followed. Additionally,
Appendix D lists pertinent articles of the Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, which must be
followed, including Article 5, which states that individual protected
persons shall ``be treated with humanity.''
Moreover, section 1-5 of Army Regulation 190-8, sets forth the
general protection policy with respect to the treatment of enemy
prisoners of war and other detained persons, and specifically requires
that ``prisoners will receive humane treatment without regard to race,
nationality, religion, political opinion, sex, or other criteria.'' It
then lists several acts that are prohibited: murder, torture, corporal
punishment, mutilation, the taking of hostages, sensory deprivation,
collective punishments, execution without trial by proper authority,
and all cruel and degrading treatment. The very next paragraph states
that all persons will be ``protected against all acts of violence to
include rape, forced prostitution, assault and theft, insults, public
curiosity, bodily injury, and reprisals of any kind.''
Also, DOD Directive 3115.09, DOD Intelligence Interrogations,
Detainee Debriefings, and Tactical Questioning, of 3 November 2005,
states that the DOD policy is to treat all captured or detained
personnel humanely, and that all interrogations, debriefings, and
tactical questioning shall be conducted humanely in accordance with
applicable law and policy. The document does not define the term
``humanely.''
Subsequent to Brigadier General Sandkuhler's testimony, the new
Army FM on intelligence interrogations was promulgated. This is FM 2-
22.3, Human Intelligence Collector Operations, and was promulgated on
September 6, 2006. FM 2-22.3 states that the principles and techniques
of human intelligence collection are to be used within the constraints
established by U.S. law, including the Uniform Code of Military
Justice, the Geneva Conventions of 1949, and the DTA of 2005. (See FM
2-22.3, page vii). It further states:
All captured or detained personnel, regardless of status,
shall be treated humanely, and in accordance with the DTA of
2005 and DOD Directive 2310.1E, ``Department of Defense
Detainee Program'', and no person in the custody or under the
control of DOD, regardless of nationality or physical location,
shall be subject to torture or cruel, inhuman, or degrading
treatment or punishment, in accordance with and as defined in
U.S. law. (See page viii).
On page 5-21 of FM 2-22.3, there is a discussion regarding the
prohibition against cruel, inhuman, or degrading treatment. If
references the DTA, which defines ``cruel, inhuman or degrading
treatment'' as the ``cruel, unusual, and inhumane treatment or
punishment prohibited by the 5th, 8th, and 14th amendments to the
Constitution of the United States.'' FM 2-22.3 provides a list of
actions that will not be approved in any circumstance. FM 2-22.3
provides two tests to be used in order to determine whether a
contemplated approach or technique would be prohibited. These tests are
found on page 5-22. These tests demonstrate the difficulty in trying to
establish hard and fast definitions to terms such as ``degrading
treatment'' or ``inhumane acts.'' FM 2-22.3 addresses the issue of
inhumane acts throughout the document without defining the term. (See
FM 2-22.3, pages 5-26, 6-9, App. A, M-1, and M-4-5).
Finally, DOD Directive 2310.01E, the Department of Defense Detainee
Program, dated 5 September 2006, states that all detainees shall be
treated humanely and in accordance with U.S. law, the law of war, and
applicable U.S. policy. It provides that at a minimum the standards of
Common Article 3 to the Geneva Conventions of 1949, shall apply. DOD
Directive 2310.01E includes the text of Common Article 3 as an
enclosure. (See Enclosure 3, DOD Directive 2310.01E). Enclosure 4 to
DOD Directive 2310.01E also contains a Detainee Treatment Policy. DOD
Directive 2310.01E does not specifically define the term ``humane
treatment,'' but it does provide specific examples of both proper and
improper treatment.
The Geneva Conventions of 1949, which are the guiding documents in
this area, do not define the terms ``humiliating'' and ``degrading
treatment'', which are found in Common Article 3. Like all legal
instruments, the text of Common Article 3 is subject to interpretation.
As is true for legal interpretation elsewhere, a reasonable person
standard should be followed.
Chairman Warner. There is the Army Field Manual, the
current issue. Then, Senator McCain and I are anxious to see
how soon the new and revised one will come out. That's a
separate subject we're going to probe together.
General Sandkulher. Ask General Black, sir.
Senator Inhofe. Reclaiming my time, here.
When you talk about the baseline, using UCMJ or using the
Common Article 3, would any of you want to use as a baseline
the existing procedures?
Admiral McPherson. As I testified before, I think the
existing procedures are wanting.
Senator Inhofe. Do you all? Anyone?
General Romig. I agree.
Senator Inhofe. You're talking about a baseline here,
you're not talking about an end product. We've already
established that.
General Romig. That's correct.
Senator Inhofe. But a place to start. Would any of you
think that, currently, the procedures that have been in place
would be a good baseline to start?
General Sandkulher. I think you could start there, Senator.
I think you could start with the UCMJ. I think we need to work
towards a middle between those two, if want to call them
extremes.
Senator Inhofe. All right, sir.
This morning, in the New York Times--I'll read this to you,
and I'm going to ask you if you agree with this--``The
administration lawyers have argued that the most desirable
solution would be for Congress to pass a law approving the
tribunals that the Court said the President could not establish
in his own proceedings that would grant minimum rights to
detainees.''
Do any of you support that statement?
General Romig. No, Senator.
Admiral McPherson. No, sir.
Senator Inhofe. Thank you, Mr. Chairman.
Chairman Warner. Thank you.
Forgive me for the interruption, but I thought that
response to your important question had to be accurately
reflected in the record.
Senator Clinton.
Senator Clinton. Thank you, Mr. Chairman.
Thanks especially to this panel. I commend you all for your
years of service and for your deep concern about the issues
that we're discussing today, and I certainly look forward to
your continuing guidance. I hope that those of you still in
uniform--actively involved and permitted in the consultation
process going forward, so that we try to work this out on a
bipartisan, bicameral basis, certainly for the good of our men
and women in uniform, and, frankly, for the good of our
country.
I think that there's been so much confusion about this
issue, the way it's been discussed, the way it's been, to some
extent, sensationalized. I appreciate the very sober and
prudent way you've addressed these matters.
Some of you have talked about looking to the Nuremberg
trials, and even the other international tribunals that have
been established over the last 50 years, as examples as we move
forward and try to determine what best course to take. Do any
of you have specific lessons that you think we should draw
either to apply or not apply from those international
experiences?
Admiral Hutson. I would say accountability, coming out of
Nuremberg.
Senator Clinton. Accountability up and down the chain of
command?
Admiral Hutson. Accountability up and down the chain of
command, that people are responsible for the actions of their
subordinates, and so that when you're trying bin Laden, he's
Yamashita--I think that that's one of the lessons that came out
of World War II, and that following illegal orders isn't a
defense.
Senator Clinton. Can there be illegal orders when you have
a terrorist organization? Is there such a thing as a baseline
of legality? I think those are the kinds of questions people
have to ask. This is different than what we've attempted to do
before, and I think looking to the international tribunals
could be enlightening.
Anyone else have anything to add about that? Yes, General?
General Sandkulher. Senator, we've looked at some of the
ideas of discovery that exist under the Rwanda and the Yugoslav
international criminal courts that have procedures that
recognize the need for classified information or security
documents of interest to the other nations being controlled in
a way that is not perhaps revealed to an accused. There are
items out there from those forum that we think we can look at,
and we have looked at the past, that provide us with criteria
that are internationally acceptable.
Senator Clinton. We've had two examples, one here, with the
Moussaoui trial and one in Germany, where the refusal of our
Government to share information arguably affected the outcomes
of those trials. I think this question about confidential
evidence and hearsay evidence is going to be especially thorny.
One of the concerns that I have is that, as you look at the
evidence that could be presented, a lot of it will be hearsay
or confidential, classified in some form or another. May I ask
if you've given thought, as I'm sure you have, that you could
share with us, about the understanding of the specific issue of
confidentiality as a precedent in war crimes tribunals? Would
the rules in the Classified Information Procedures Act (CIPA)
be sufficient? On the issue of hearsay and the challenges of
obtaining evidence from continents away, from battlefields that
are 8,000 feet in the air, how do you address that? Does
anybody have that initial impressions that you'd be willing to
share with us on confidentiality and hearsay?
Admiral Hutson. Senator, Military Rule of Evidence 505
deals quite nicely with classified sources-and-means kinds of
things, where there's a variety of ways, in camera, in showing
it to the judge in camera, unclassified summaries and that sort
of thing, that can be used as, again, a starting point or a
baseline for dealing with that aspect of your question.
With regard to hearsay, of course, you're absolutely right,
there's going to be lots of hearsay problems if you were to
just use the military rules with regard to hearsay, which are
basically the same as the Federal rules.
I would suggest that you need to have some sort of apparent
authenticity--it may be corroborating evidence--aspect to it so
that what you can't do, I think, is say to the accused, ``We
know you're guilty. We can't tell you why. We can't tell you
who told us something. We can't tell you what. But you're
guilty.''
Senator Clinton. I also want to reinforce something that
one of you just said, and that is, we're not talking about a
choice between trying somebody or letting somebody go. That's
been very confusing to people in this process, and there's been
a lot of hyped rhetoric about ``You're going to tear down the
system. Look what the Supreme Court did. We're going to let all
these terrorists loose.'' You do not have to let people go.
These are enemy combatants, POWs, whatever we want to call
them. We had Nazis in prison camps in our country for years.
Then the hostilities ended, and they were let go.
I think it's useful, not only to be talking about the
details as to what we need to consider, going forward, but
maybe to clear the air a little bit. I listened to some of the
hearings that some of you participated in yesterday, and
frankly, it was embarrassing.
Senator Graham. Would the Senator yield?
Senator Clinton. I certainly would, Mr. Chairman.
Senator Graham. Isn't it correct that you could be
acquitted in a military commission and still be held as an
enemy combatant, even if you're acquitted?
Admiral McPherson. That's correct, sir.
Senator Graham. To go to your point, you're absolutely
right.
Senator Clinton. Thank you for that clarification and
addition.
I just want to be sure, Mr. Chairman, as we go forward with
this, that the Senate does not engage in the same kind of
heated, inaccurate rhetoric that will undermine this very
important, serious endeavor. Therefore, we need to clarify many
of the points, and that is one of the critical ones that I
wanted to get on the record, because this is not about whether
you try terrorists or let them go. We have to be very clear
about that, going forward.
Chairman Warner. I thank the Senator from New York for that
very insightful observation.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
The problem is that these persons, for the most part, that
we are dealing with, that are most dangerous, are unlawful
combatants, they're not German soldiers who wore uniforms and
who served a nation-state. They're unlawful combatants. Many of
them are obsessively committed to suicidal destruction of
American lives. At some point, as one of you said, when someone
declares this war is over, they'll be released. It is
important, if they are guilty and are actual terrorists who are
bent upon destruction of American lives or Iraqi lives or
Afghani lives, that they be detained more than the length of
this hostility.
With regard to the military commissions, I think the
Supreme Court ruling reversed ex parte Quirin. I believe the
President and the DOD correctly set up commissions under the
existing law at the time, as has every President before this
one, and they've changed the law. So, we now have to comply
with it. I don't think the President, the DOD, or anyone else
should be condemned for carrying out a system that has been
consistent with the history of America.
Let me just ask this, so the American people will know.
General Black, I can start with you, or if someone else would
like to answer, that would be fine. These commissions provided
certain protections and procedures. Would you summarize for us
what was in place and what protections and procedures were set
up to try persons for these kind of criminal unlawful-combatant
acts?
General Black. Yes, sir. The commissions, as originally
constituted, as they exist today, provided a great number of
procedural rights and protections that we would find
acceptable, to include the right to counsel, the right to be
present, the right to confrontation of witnesses against you.
There are discovery rights accorded to the accused in these
proceedings. There are fundamental rights that are all very
familiar to us, as Americans, and to the world, in general, as
just and fair.
My colleagues here at the table would agree that the
commissions process that was built is, again, a good place to
start from, and we can add to that and improve upon it and
build it into something we can all be very proud of.
Senator Sessions. Thank you, General Black. I think we need
to remember that. Now, this was a 5-to-3 Supreme Court
decision--really 5-to-4, since Chief Justice Roberts had
already voted to sustain this case. They found that a few areas
of the commissions were inadequate. Would you just describe for
us what the Supreme Court said was inadequate about this, I
think, a fair procedure that had been set up to try persons
accused of these crimes?
General Black. Yes, sir. In a nutshell, I believe the Court
found that the commissions are defective because they violate
the UCMJ and the Geneva Conventions. To follow on with that,
they said the executive could go ahead and proceed with
military commissions, either following the UCMJ model or by
following a model that's adopted by Congress.
We can do that and achieve, I think, the goal that the
Court is getting at, with the underlying basis of Common
Article 3, with some relatively easy changes, many of which
have been articulated here already today. Presence of the
accused throughout the proceeding is a great example. The right
to view all evidence is another great example. Independent
defense function and the presiding officials, and the
independence of the presiding officials, are other examples of
areas that we can proceed forward on to achieve the----
Senator Sessions. Why is that--review and see all
evidence--does that mean that they have to see the machinery,
perhaps, that did electronic surveillance to obtain data that
you might have to see in a Federal trial courtroom?
General Black. No, sir, I don't think so.
Senator Sessions. I don't think they should.
General Black. We'll have to formulate those rules very
carefully. I think we can expand upon what we have right now.
Senator Sessions. I noticed a couple of gentlemen mentioned
that we should not have coerced evidence. I've been a
prosecutor for 15 years, and ``coercion'' is a legal term
generally applied in the American court system that's awfully
strong. For example, if someone is approached by a large police
officer, and he says, ``What are you doing here?'' that's
considered a coercive inquiry. That's considered to be an
involuntary confession if the person said, ``I was here to make
a bomb.'' What if a soldier goes in a house with a gun and
says, ``Why did you make this bomb?'' and he says, ``Because
I'm a part of a jihad,'' and now they move to strike it because
it's coercive? Don't you think we have to be very careful about
how we do these terms so that what's happening in the
battlefield is understood to be different than the American
legal system?
General Black. Oh, yes, sir, I do. In fact, the DTA
requires a slightly higher standard than the commissions
currently use. I believe that's the probative value review of
any coerced statements. I think we can refine that language and
get exactly to the goal that you're talking about.
Senator Sessions. What is exculpatory evidence? Real
exculpatory evidence needs to be produced, no doubt about it.
What if his defense is, ``I was taking orders from somebody''
that can't be found, and we're supposed to find them--or maybe,
``I had a bad childhood. I want to bring my abusive father''--
which you could do, perhaps, in the American courtroom. I'm not
making light of it, but I'm just saying, how you define
``exculpatory evidence'' is no small matter.
I would also express my concern that when you go from the
basic UCMJ, Mr. Chairman--and maybe there are certain
provisions that you don't change, and you adopt and leave as
part of the law--we will have adopted, presumably, the case law
that goes with it, and that case law will have been developed
for the purpose of trying American soldiers, providing them
certain protections, that may not be necessarily legitimate to
provide to those who would destroy the United States.
We need to be really careful. I think military commissions
are legitimate. They've been part of our history from the
beginning. The Supreme Court didn't say to the contrary. Let's
meet the standards the Supreme Court said, but it's not the
greatest piece of legislation that this Congress will be
passing when we do so, in my view.
Chairman Warner. Thank you, Senator.
Senator Reed.
Senator Reed. Thank you very much, Mr. Chairman.
Thank you, gentlemen, not only for your testimony today,
but for your service.
Admiral Hutson, if I may, with the decision by the DOD,
Secretary England, to affirm that Common Article 3 applies, is
there any category of detainee today that is not under the
provisions of Common Article 3?
Admiral Hutson. No, Senator. My opinion is that Common
Article 3--common as it is to all the Geneva Conventions,
applying to all four conventions--is the minimum standard that
covers everybody. If you're a POW, it's an entirely different
situation, and there are lots of attributes and rights and
requirements that are different, but that Common Article 3
provides a floor for everybody.
Senator Reed. If there is any disagreement, I would
encourage the other panelists to just jump in.
On July 7, 2006, Secretary England said, ``It's my
understanding that, aside from the military commission
procedures, existing DOD orders, policies, directives,
executive orders, and doctrine comply with the standards of
Common Article 3.'' Is that the common understanding of this
panel, that all the procedures, except for the commission
procedures, are consistent?
Admiral McPherson. Yes, sir. Senator, what Deputy Secretary
of Defense England asked us to do was, within 3 weeks, review
all our policies, directives, written orders, and ensure that
that, in fact, is the case. We're doing that right now.
Senator Reed. That will be reported not only to the
Secretary, but to Congress?
Chairman Warner. We certainly would take judicial notice,
and we'll see that that material is provided.
Senator Reed. I think this is a good point to establish
what we have to do, here in Congress. I commend the chairman
for this hearing, and this series of hearings. General Black,
I'm responding, I think, to your response to Senator Sessions--
the choice the President has after Hamdan is to use the full
panoply of the UCMJ with respect to these trials--all the
rights, all the procedures--or to come to Congress and get
authorization for a commission. Is that a fair understanding?
General Black. I believe that's what the Court said, sir in
the Hamdan case.
Senator Reed. Is there any disagreement on that point? [No
response.]
I presume, since the administration seems to be reluctant
to embrace the full panoply of the UCMJ procedures, that we
have to give them, the administration, the President, or any
President, the authority to conduct these commissions. Is that
the correct understanding? [No response.]
The next issue, I think, is what procedural rules would
apply? From your testimony, I assume that you are all urging us
to begin with the UCMJ, as it exists today. Again, any
disagreement? [No response.]
Thank you. Then the real question becomes, what are the
exceptions? I open it up to the panel. There are two ways, at
least, to do the exceptions. We could sit down and laboriously
go through every provision of the UCMJ and author legislation
that would categorize and specify exemptions, or we could give
the President, subject to appropriate review, and by
regulation, the opportunity to make exceptions, have a record
justifying those exceptions, subject to review. Posing those
two points, perhaps rhetorically, would you like to comment on
your preferred approach? We can go up and down the line.
Admiral Hutson?
Admiral Hutson. Senator, the National Institute of Military
Justice (NIMJ), which is an organization of which I'm on the
board, proposed legislation that would, one, authorize
commissions and would provide the President the authority to
make those changes that he felt were absolutely necessary, in a
narrow and specific way, based on military necessity and
practicality, and then report them to you. That is a reasonable
way to proceed on the issue. Although in his testimony
yesterday, Mr. Dell'Orto said that the DOD had already gone
through the UCMJ, the MCM, and identified the changes that need
to be made.
Senator Reed. General Romig, any comments?
General Romig. Senator, I've thought about this, and I
don't know if this is feasible, but it strikes me that, if it
is feasible, you probably ought to put together a working group
on this committee with people that come from the Services,
nominated from the Services, under the supervision of a couple
of the staffers, maybe from each side, so you have a bipartisan
effort, and then get input from all these different places, get
input from DOD, and get input from the NIMJ. That way you're
going to get all kinds of input, you're going to have smart
young people that the Services nominate to come over and work
on this. You're going to get a broader perspective than any of
the other possibilities.
Senator Reed. Thank you, General.
General Sandkuhler, let's go down the line on just this
issue.
General Sandkulher. Sir, I think the method you choose is
the one that will produce the best product. The deliberate
process of going line by line will come up with a great
product. Doing the reporting process that you're referring to,
where you--the President is authorized to produce the rules and
report back, and then the rules are blessed or not blessed, and
that could produce the right product, as well. The key is a
deliberate process to make sure we understand all that we are
doing is appropriate not only for trying the people that we
hold as terrorists, but also for the UCMJ, as it exists today,
so we don't inadvertently corrupt our current system.
Senator Reed. General Rives, then Admiral McPherson, other
comments?
General Rives. Senator, I personally favor the idea of
Congress passing something in title 10 to provide baseline
standards--in title 10 either as a part of the UCMJ or
otherwise--to provide baseline standards of the sense of
Congress on what the minimum standards for military commissions
ought to be, and then deferring to the President to come up
with, perhaps, a manual for military commissions or some other
executive order to work out all the details, just like we have
the UCMJ and the MCM as an executive order.
Senator Reed. Admiral McPherson?
Admiral McPherson. Senator, I think it's not as important
where you start as where you end up. I think where we start has
become a polarizing theme. ``Do we start at the UCMJ, or do we
start with the current rules?'' has caused us to be poles
apart. I would like to see us utilize every reference we can,
and pull from each reference to come up with a set of rules
that are just. That's going to be some things out of the UCMJ,
some things out of the current rules, and some things out of
the international law. That's how we come to a conclusion and
we get to the end. At the end of the day, we'll get to the same
place. I think we come at it from that direction, rather than
the polarizing direction.
Senator Reed. Thank you.
General Black. I would agree with Admiral McPherson, sir. I
think that's the right way to go.
Senator Reed. Thank you.
Senator Reed. Thank you very much, gentlemen.
Thank you Mr. Chairman.
Chairman Warner. Thank you very much.
We have, in the possession of the committee now, the report
of the National Institute of Military Justice. I have it here.
We will include it in today's record.
Thank you for making reference to it.
[The information referred to follows:]
Chairman Warner. Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman. Thanks, each of
you, for being here today.
I guess, initially, we've been trying to figure out, where
do we start? There have been some who have suggested that we
could start with Military Order 1 and figure out in what ways
that it may be deficient from Congress's perspective, and to
add to that. There's some reluctance in Congress to adopt the
executive order, Military Order 1. So, others have suggested,
``We can do it with something that Congress is more comfortable
with, the UCMJ, and carve out exceptions.'' Obviously, it's all
about, as many of you have said, where we end up. I'm advised
that preliminary assessment by staff is that 110 rules for
court-martial would have to be changed, 73 rules of evidence,
and 145 to 150 UCMJ articles. I haven't done that count myself.
I'm just reporting what I've been advised by staff.
Let me get to the area that concerns me the most, and that
depending on how we approach this, whether we would be
unnecessarily hamstringing our ability to get actionable
intelligence from detainees because of some of the provisions
of Common Article 3, which the Court applied in this context.
Of course, what makes this unusual is that al Qaeda detainees
have been held--at least three Federal courts, the 9/11
Commission observed, the Schlesinger Commission observed--they
are not subject to or entitled to the rights of POWs,
generally. Because they don't wear a uniform, they don't
observe the laws of war. In fact, we know this enemy is perhaps
uniquely barbaric in terms of their attacks on innocent
civilians and others. So, we have Common Article 3 applying to
some aspects of this, without the full panoply of POW's rights
under the Geneva Conventions.
Let me just ask you specifically, in the DTA there is a
prohibition against cruel, inhumane, or degrading treatment or
punishment. That's already the law of the land. But in Common
Article 3 there is a prohibition against humiliating treatment.
For example, it also includes degrading treatment. There's been
some allusion, already, to interpretation by European courts as
to what this may mean. For example, is it degrading treatment
to put two detainees in the same cell with an unscreened
toilet? That's what the European Court of Human Rights has
held. What about close confinement in a cell without access to
outdoor exercise? The same court has held that that was
degrading treatment. European courts have also held that a long
wait on death row for a convicted murderer who is sentenced to
death was degrading treatment. European courts have said that
degrading treatment includes conduct that is intended to arouse
feelings of fear, anguish, and inferiority, possibly to break
the detainee's moral resistance.
I hope I've framed my concerns, and I would like to,
perhaps, start with General Black and go down the row to get
your reaction to how we can address those problems, without
impairing our ability to get actionable intelligence, while
complying with the law.
General Black. Sir, I think that the Supreme Court has at
least set the groundwork for us on this in the Hamdan case by
applying Common Article 3 to our operations. We at least know
we have a fundamental, again, baseline, to use that term, with
respect to our operations.
This has been a subject of discussion in prior questioning,
and it gets to the heart of the definitions that we apply here.
That's something that I believe that we'll need the help of
this Congress on to set the guidelines for our soldiers,
sailors, airmen, and marines as they go forward. These are
difficult issues, and I don't have ready answers for you.
You've already pointed out the disparity with respect to the
international community's view of degrading treatment. You'll
find the same disparity in any conversation in any lunchroom in
America, too, I believe. I think it will fall upon this body,
ultimately, to help us resolve those issues.
Senator Cornyn. General Black, you've raised an important
issue that I know is important to a number of us, and that is
the ambiguity that's created by some of these terms, and if
we're going to embrace interpretations of foreign courts, or
not. What does this tell our interrogators? What does this tell
our military personnel who are in charge of trying to obtain
intelligence that can hopefully keep not only American
civilians safe, but also our troops in the field? To me, it
seems like a recipe for disaster. Ambiguity is not our friend
here. I think clarity, if at all possible, certain lines, which
will allow us to use every legal avenue available to get
actionable intelligence, is important. I worry about that, and
I hope you can give me some comfort.
Admiral, do you have any comforting words in that regard?
Admiral McPherson. I wish I did, Senator, thank you. We
need to just exercise extreme care in drafting those
definitions, and that's part of what the legislation needs to
do, is give us some framework for those definitions. Words like
``coercive,'' ``humiliating,'' and ``degrading,'' you can do a
lot with those words, but we can get it right by carefully
drafting the definitions to those words.
Senator Cornyn. Since time is short, let me jump down to
General Romig. In your opening comments, you mentioned that
court-martial procedures that apply to servicemembers shouldn't
apply to terrorists. I believe that's a correct quote. Could
you just identify for us--and I don't want you to go through
the hundreds or however many that were identified by staff that
I mentioned earlier, but can you identify, let's say, three of
the most prominent protections provided to servicemembers under
our court-martial procedures that should not apply to
terrorists?
General Romig. Yes, sir. I think what I said was that we
need to look to see what processes and procedures would not
work well in a military commission because of the unique
environment. There are a number of them. Article 31 rights,
upon capture, I think that would be silly to require something
like that. You capture somebody on the battlefield, you don't
even know, until they've been interrogated, and once you decide
that now you have a criminal, perhaps--I would suggest that--
and Article 31, by the way, is a Miranda right, basically, but
it's broader than that--I would suggest that, once they're
charged, speedy-trial rules that were mentioned earlier, the
120 days and all of that, I think that just doesn't work in the
environment we're talking about. Evidence-handling, chain of
custody, the requirements that we put on law enforcement just
won't work in a military environment where people are capturing
people on the battlefield. They're not going to have all the
technicalities that we would like in a court of law for a
criminal case in the United States. Right to counsel upon
capture, of course not. That doesn't even make sense.
There are a number of those that don't. I'm not sure the
number that you quoted. I haven't looked at it. That sounds to
me fairly high, but I don't know. I don't know whether that
number of articles are truly ones that would have to be
revisited. I suspect that there are a number of those that
would need to be tweaked, perhaps.
Senator Cornyn. My time is up. Thank you very much.
Chairman Warner. Thank you very much, Senator.
Before I proceed to Senator Byrd, I think the importance of
this hearing is such that I'm going to ask the witnesses to
remain so that Senators who desire can have a second round. I
wish those not present to be informed by their staff that that
opportunity will be made available. I hope the witnesses can
remain with us.
Thank you.
Senator Byrd.
Senator Byrd. Thank you, Mr. Chairman.
The Supreme Court forcefully, with both arms, beat back
this administration's transparently shameless and ill-conceived
attempt to wrest unto itself power that is properly delegated
to the legislative branch, the U.S. Congress, this Congress,
and this committee. The Court held that the President had no--
and I repeat, no legal authority to establish the type of
military commissions he created to try detainees at Guantanamo
Bay. The Court found that the President's actions exceeded the
statutory authority provided by Congress in the UCMJ, and that
the procedures of the military commissions violated each of the
four Geneva Conventions. The Supreme Court dramatically and
forcefully put its foot down, and every American is all the
better for it.
As Justice Kennedy wrote in his concurring opinion, ``Trial
by military commission raises separation-of-powers concerns of
the highest order.''
Justice Breyer also put it succinctly, ``The Court's
conclusion ultimately rests upon a single ground. Congress has
not issued the executive a blank check.''
Because we are at war does not mean that we agree to
jettison our legal rights or rewrite the Constitution. I do not
believe that we should now rewrite U.S. law to give the
President the blank check that he has been seeking.
Incomprehensibly, some argue that we should simply paste the
military order that established the invalid commissions into
U.S. law. They forget that our Government is comprised of
three--not just one, not just two--three separate, but equal,
branches of government. As Justice Breyer wrote, ``Whereas,
here no emergency prevents consultation with Congress, judicial
insistence upon that consultation does not weaken our Nation's
ability to deal with danger. It strengthens it.''
Justice Breyer advises that such insistence on consultation
with Congress, the people's branch strengthens the ability of
the United States to address adversity through democratic
means. Justice Breyer reminds us that the Constitution places
its faith in those democratic means, and so must we.
Question, to General Romig and Rear Admiral John Hutson. If
Hamdan rejects the theory that there are inherent presidential
powers not subject to legislative and judicial checks, what
does the decision say about claims of inherent presidential
powers in other areas, such as the program of National Security
Agency eavesdropping, extraordinary rendition, or holding
detainees indefinitely in secret prisons overseas?
General Romig. I'll start, Senator, and I'll then defer to
the dean, who I'm sure has studied this much more than I have.
The Hamdan decision is limited to the scope of the facts of
that particular case, and that it remains to be future cases
that will determine the issues that you talk about, if they are
brought and get to the level of the Supreme Court. I think it
would be a stretch to expand that decision beyond the four
corners of the facts of that case.
Senator Byrd. Admiral Hutson?
Admiral Hutson. Thank you, Senator Byrd.
It is absolutely true, wise lawyers read Supreme Court
cases narrowly and conservatively. In that case, the Supreme
Court said, among other things, that the President did not, in
his inherent authority or in the authorization to use military
force that was given to him by Congress in the wake of
September 11, have the authority in waging this war to create
commissions himself, to prosecute people found on the
battlefield. One could speculate, if he can't do that, taking
people off the battlefield and prosecuting them, then what else
could he do, or could not do? As my learned colleague said,
that would only be speculation. We've talked a lot about what
Hamdan stands for, if Hamdan stands for anything, it stands for
the proposition that this has, for too long, been a dialogue
between the executive and the courts, and that it needs to
become a dialogue between the executive and Congress. I believe
that Hamdan was not a revolution, it was a return to the normal
state of affairs.
Senator Byrd. Would it be possible to circumvent the Hamdan
decision by simply moving those held at Guantanamo Bay to
Eastern Europe or elsewhere? How does this decision affect
those detained by the U.S. in other countries?
General Romig. I guess I'd need a little more facts on
that--are these moving them back to their home countries? Are
they returning to where they originated from, or are we just
moving them somewhere to warehouse them? I think, given the
focus of the Court, if that were to happen, we would probably
have another case back before the Supreme Court, although
Hamdan only talked about the military commissions. What you're
talking about, then, Senator, would be the warehousing or
sometimes called ``renditions,'' of detainees. I don't have a
solid answer on that, as far as what the Court would do, if it
came to the Court. I don't know.
Senator Byrd. My time has expired.
Chairman Warner. Thank you. Thank you very much, Senator
Byrd.
Senator Thune.
Senator Thune. Thank you, Mr. Chairman.
I, too, want to thank the panel for their service to the
country and also for their very expert testimony today and your
many contributions to a system which has worked remarkably well
for a really long time. In light of that court decision, we
will now look to you for direction and guidance as we attempt
to involve the legislative branch of the Government in this
discussion, which, as some of you have noted, may be overdue.
I have a question I'd like to direct to all of you, because
it seems to me that one of the things we're running into is,
we're really subjecting modern warfare of the war on terrorism
to a framework--that being, Common Article 3 of the Geneva
Convention--that is a very antiquated standard, if you will, to
warfare, as we know it today, in a war on terrorism. In other
words, you don't have nation-states, you have a very different
set of circumstances that we're dealing with. I think one of
the issues that we all here debate and discuss when we talk
about combatants, we hear talk about lawful and unlawful
combatants, and we make a distinction between those two types.
I guess I'd just ask you a simple question, do you agree with
designating two classifications of combatants?
General Black. Yes, sir.
Admiral McPherson. Yes, sir, I think that's consistent with
the Geneva Conventions.
Senator Thune. Do you agree that terrorists should be
classified as unlawful combatants? [Witnesses indicating yes.]
Currently, there isn't any Federal statute that
comprehensively defines that term ``unlawful combatant'' or
their legal rights. Do you consider it reasonable, as part of
this process, that Congress clearly define what that term
means, what ``unlawful combatant'' is? Is that something that
is a part of our discussion here?
General Romig. Senator, the law of war defines what a
``privileged'' or ``lawful combatant'' is, and what isn't. The
law of war is part of the law of the United States, as far as
the Conventions, and those that we've ratified. We could
enhance or embellish, but we certainly couldn't detract from
what that is.
Senator Thune. You said you all trained to Common Article 3
as the standard and the base today, even though that's not
something that was adopted; in fact, it was rejected by the
Senate. When you're dealing with an enemy that routinely and
systematically will kill innocent civilians without remorse or
conscience, you have a very different type of enemy than we've
ever faced before. You talk about some of the terms that we use
here, and clarifying them and their interpretation, and what
the world community believes. Senator Cornyn has shared some of
the definitions that have been applied in places like Europe.
For the commonsense standard that people would apply in a State
like where I'm from, in South Dakota, when you talk about
``humiliating'' or ``degrading'' or those types of terms, in
applying them to terrorists, to people who, as I said, without
remorse or conscience, will systematically kill innocent human
beings, those types of terms are not something that people in
my State would be really concerned that we might be infringing
on the inferiority, or sense of inferiority, that terrorists
might have. People across this country, as they listen to this
debate, are going to apply what is, I think, a very commonsense
standard.
I know we have a responsibility to come up with some legal
definitions here, but I hope that, as this process moves
forward, that we don't deviate too far from a very successful
system that has been in place for a very long time, both with
respect to the UCMJ, the commission structure, as it has been
applied historically. I'd share and echo some of the concerns
that have been raised by other members on this committee, that,
as we contemplate doing this, that we address as much clarity
as we can.
My concern, too, is, in doing this, since we set the
standard for the world, that these types of standards are going
to be applied by other nations to our military personnel in the
future. I don't believe that terrorists are going to care what
we do here, because they don't live by the same set of rules
and standards. I think it's important that we get it right, but
that we not deviate too far from where we are today. That's why
I was encouraged to hear all of you say that we have a good
starting point, and I hope that we can perhaps refine and
improve upon it, but certainly not do away with it and move to
definitions that come out of a world community or other places
in the world that I don't think ought to be dictating what we
accomplish and what we use here as a standard in the United
States.
I thank you, again, for your testimony, and appreciate the
opportunity to hear your insights, and, as we go forward, and
look forward to your guidance and direction in trying to get
this right.
Thank you.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator Thune.
Senator Lieberman.
Senator Lieberman. Thanks, Mr. Chairman. Thanks to you and
Senator Levin. Thanks to the members of the panel.
Mr. Chairman, I got here a little bit late today, so,
according to the early-bird rule, I've had a while to wait
until I got to ask my questions. But I must say, it's been an
extraordinary morning. I've learned a lot, and I've been
reminded of a lot. One of the things I've been reminded of is
what an extraordinary and great country we are blessed to live
in.
We believe in the rule of law. We make mistakes. As the
Court said, the administration made--in its decision in the
Hamdan case--we are a far-from-perfect people, but we hold
ourselves, ultimately, to our a high standard of law and
justice. That's exactly what we're doing here today.
It's all the more remarkable, without belaboring the point,
when one considers, as we sometimes forget in the back-and-
forth, that we are talking about a war we're involved in here
against an enemy, radical Islamist terrorism, which is totally
lawless, holds itself to no standards of accountability. Common
Article 3 of the Geneva Convention? Forget about it. A brutal
enemy whose very existence and purpose for being assaults and
violates the premise of our existence as a Nation. The
Declaration of Independence says it, right at the beginning,
``these self-evident truths that we're all created equal, and
we're endowed by our Creator with the rights to life, liberty,
and the pursuit of happiness,'' and that the Government, as
they said in the next paragraph, our Founders, was created to
secure those rights. Every time we make mistakes, we do come
back to that standard of those rights and the law that
guarantees them.
I thank the witnesses, I thank my colleagues, and I thank
the chairman and Senator Levin for bringing us through this
process to remind us of this. I hope the American people see
this and are proud of what's happening here, that mistakes were
made, but we should go beyond our defensiveness and
embarrassment to pride that we're going to make them right. I
hope the people of the world give us a little credit for that,
as well, because, after all, the Supreme Court of the United
States comes along and says, just as the Founders intended it
to, ``No one is above the law, not even the President in a time
of war against inhumane people and nonstate actors.'' Quite
remarkable. We are now proceeding from there.
I want to emphasize, before I ask a question, I think
Senator Byrd really hit a very important point, and it was
validated in the responses some of you gave. The Hamdan case is
essentially a separation-of-powers case. Very important. It
makes some references to the rights of detainees, but this is
basically the Court saying that Congress, because we already
acted to authorize military commissions using the UCMJ, that
the President, in that context, simply did not have the
authority to deviate from those procedures, absent further
congressional authorization. Although they're probably--and,
one assumes, would be--some type of procedure the Court would
find unconstitutional to try enemy detainees, even if
authorized by Congress, the Court actually did not opine on
what that would be. That's up to us, working together with the
administration now to do that.
I think we've said here that the current system that the
administration adopted doesn't have enough rights in it. There
seems to be a consensus on the panel about that, that the UCMJ,
if I may use the term simplistically, has too many rights. We
don't want to give terrorists all the rights that our troops
have when we use the UCMJ to try them. Therefore, we have to
find our own way, built primarily, I would say, on or starting
with, the UCMJ and moving from there.
Here's the first question. Some have argued, as has been
referred to in other parts of Capitol Hill in the last few
days, that if military commissions followed the procedures of
courts-martial, then our military personnel in the battlefield
would be forced to follow Supreme Court rulings on Miranda
rights, et cetera, give them their rights before they're
arrested; interrogations would have to be conducted according
to all of that. You've debunked that. I believe that's right.
Let me ask you this kind of question. We're not going to do
this, but if we adopted the UCMJ requirements regarding enemy
detainees, would they be required to receive Miranda warnings,
even under the UCMJ, or--in other words, would we have to make
changes explicitly in the UCMJ to make clear that enemy
detainees don't have to receive those warnings?
Admiral Hutson?
Admiral Hutson. If I understand your question, Senator, my
answer would be that what envision is that--as I think one of
the other witnesses may have described in some respects--the
UCMJ is the umbrella over which it all hangs. You have courts
martial for U.S. service people, and you have military
commissions, and you have other kinds of provost courts and
courts of inquiry and that sort of thing. The military
commissions, as the vehicle, would be under the UCMJ, so that
you wouldn't be changing Article 31 or Article 32, for example.
Senator Lieberman. Do those require Miranda warnings in the
case of normal courts-martial?
Admiral Hutson. Yes, sir. Article 31 is the equivalent of
Miranda, except that it's broader and it requires the rights be
afforded at the point of suspicion, not at the point of
custodial interrogation.
Senator Lieberman. So, presumably, if we were to use the
UCMJ as a basis for dealing with enemy detainees, we would want
to alter that particular provision so they're not required to
receive Miranda warnings.
Admiral Hutson. Absolutely.
Senator Lieberman. Let me ask a final question, briefly,
which is about Article 32 proceedings, which we've not talked
about. Generally speaking, I describe them as the UCMJ version
of grand juries. Again, I know there was some concern expressed
at Tuesday's Judiciary hearing that Article 32 proceedings are
generally open to the public. If applied to the detainees in
Guantanamo, I think the concern is that classified information
could be jeopardized and can fall into, obviously, the wrong
hands. Is Article 32 something that we ought to amend if we
apply the UCMJ to enemy combatants?
General Sandkulher. Yes, sir. I think you would have to
look at Article 32, because it's much broader than a grand jury
setting.
Senator Lieberman. Right.
General Sandkulher. There are rights to counsel, there are
rights to discovery, and there are rights to evidence. Evidence
is presented in the public setting. You would have to look and
see if you want to consider using Article 32. You may want to
say that Article 32 probably shouldn't apply in this kind of
setting, and remove that from any commission rules. That would
be an alternative to step around some of those issues.
Senator Lieberman. Right.
General Sandkulher. You'd have to determine whether it's
really necessary in this kind of event where you have a
terrorist and you've detained, and you have evidence to show
he's a terrorist. Do you need to do the Article 32, which is a
product of our system from the early 1950s to make sure minor
offenses weren't being taken to our most severe level of
punishment?
Senator Lieberman. Thank you. My time is up. That's my
inclination. I appreciate your saying that about Article 32 not
being necessary to be part of the UCMJ if we apply it to enemy
combatants.
Thanks very much for all you do every day to uphold the
rule of law in our country.
Chairman Warner. Thank you very much, Senator Lieberman.
Senator Talent.
Senator Talent. Thank you, Mr. Chairman.
I, too, appreciate the service of the members of the panel.
I have three or four questions.
To make certain I get them in, let me maybe just ask
General Romig if you'd comment, and then, when we're done with
our comments, then anybody else who wants to add something can
add to it.
Is it your understanding that the Supreme Court held that
Geneva Convention applies to all those we have captured, or
only to those who are subsequently brought before a military
tribunal, or is there some other understanding that you have of
the decision?
General Romig. It doesn't apply to the entire Geneva
Convention; it only applies to Common Article 3 of the Geneva
Conventions.
Senator Talent. Right, Common Article 3.
General Romig. Yes, it applies to all those that have been
captured.
Senator Talent. Captured.
General Romig. That's my understanding.
Senator Talent. That's your understanding of the Court's
decision.
Now, is it your understanding of Common Article 3 that one
of the protections it affords captured prisoners is the right
not to be interrogated, or is it limited to the right to be
interrogated in a humane fashion?
General Romig. It doesn't address interrogations directly,
it only addresses abusive treatment that, quite frankly, is
what we train our soldiers not to do anyway.
Senator Talent. Sure. I understand. In your judgment, it
would not give a captured suspected terrorist the right to say,
``no, I just prefer that you not ask me any further
questions,'' and then you have to go away.
General Romig. No. That's right. It is not like the Geneva
Conventions for POWs, where all you have to give is name, rank,
and serial number.
Senator Talent. Right.
General Romig. It doesn't give that kind of right, because
they are not protected.
Senator Talent. So, our interrogators can say, ``no, I'm
sorry, we're going to continue asking you these questions.''
General Romig. Absolutely.
Senator Talent. ``We have to do it in a humane way, but
we're going to continue.'' Okay.
Now, I think you testified--and I was out of the room, but
staff tells me you testified in response--not you, but the
panel--to Senator Cornyn, that we're not sure what the
protections in Common Article 3 may mean as applied to specific
cases, that, in certain respects, it--because I think he asked,
``how does that add to what we already did in the DTA?'' and I
think the panel's view was that, ``we have to work that out in
particular cases.'' Is that fair, in your judgment?
General Romig. I think so, yes, Senator.
Senator Talent. Okay. What are we going to do on the ground
while we're figuring out what Geneva means? We know the
Secretary's applied this now to everybody, so what are our
interrogators doing now while we sit here trying to figure out
what all this means?
General Romig. I'm probably not the right person to ask
now, but I will give you an answer, and then you might want to
talk to the uniformed individuals.
Senator Talent. They're going to the staff judge advocate,
and he's trying to figure it out. Is that it, basically?
General Romig. No, the answer is, do what they've been
trained to do, because they've been trained to treat everybody
as a POW. At that standard, you're never going to violate
Common Article 3.
Senator Talent. Okay, well, we hope.
General Romig. If they meet the standard of their training,
that's correct.
Senator Talent. That actually leads to the next question.
We are talking about what Congress is going to do. Since we're
applying, here, the terms of an international convention, are
we certain the Supreme Court will hold that Congress has
authority over this, or is it possible they may say, ``Look, we
have the authority to determine what the Convention means, as
applied to particular instances''? Are we going to be back
before the Supreme Court if we clarify this, in your judgment?
General Romig. In my judgment, I doubt it. I don't think
the Court would do that. I'm sure if you came up with a
definition, it would certainly pass constitutional scrutiny, or
Supreme Court scrutiny.
Senator Talent. I think the thrust of it was that it's a
statutory interpretation. I think the Court made pretty clear
that Congress can, if it clarifies, satisfy the Court's
concerns, which, for me, was the saving grace of it. That's
your view, also?
General Romig. Oh, absolutely.
Senator Talent. Would anybody like to comment on any of
those points?
Chairman Warner. Senator, we ought to very carefully get
responses, because that's a key question.
Senator Talent. On any of the four questions I asked. If
you're all in agreement with the General, or if anybody's in
real disagreement with any of that, maybe you could speak up or
forever hold your peace?
Admiral Hutson. I would just clarify General Romig's
statement with regard to interrogation of POWs to say that the
requirements with regard to POWs is a burden on the POW that
they have to give that information. It does not mean that you
can't continue to ask them questions, too. It's just that,
that's the baseline requirement, to use that word again--for
the information that they must give.
Senator Talent. Okay. Thank you, Mr. Chairman. Thank you,
General and Admiral and the whole panel. I hope, Mr. Chairman,
that we can clarify this as quickly as possible, because
sitting at this dais, these ambiguities don't affect us
personally on a day-to-day basis, but our interrogators need to
know. The only thing I disagreed with that you said, General,
is the idea that, ``as long as they treat people humanely,
they're not going to''--they may be sitting down there worried
that somebody's going to jerk their chain for something that
they really thought was okay, in light of all this ambiguity. I
know they're trained to do certain things, but I'm concerned
about getting the intelligence we need. I'm not concerned about
trying to dance around on the head of a jurisprudential pin.
I'm trying to get the intelligence we need to win this war.
This is fascinating for all of us lawyers here, which I guess
is a lot of us, but I want our guys and gals on the ground to
get the intelligence.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator.
We will now turn to you, Senator Chambliss.
Senator Chambliss. Thank you very much, Mr. Chairman.
Gentlemen, thank you for your great insight into this
issue. As a lawyer who never tried a case under the UCMJ, this
has been fascinating to listen to.
I know Senator McCain is right, and I told him as we went
to vote earlier, we have to think about how Americans may be
treated, down the line, certainly. The fact of the matter is
that we know how U.S. prisoners are treated today by al Qaeda.
We've seen that in the last month. It certainly irritates me to
no end to think that we have to continue to do what's right at
all times when the enemy that we are fighting is going to be
cruel and inhumane to American men and women who wear the
uniform at such time as they might fall into their hands.
That having been said, we have to deal with this issue in
the right way. General Romig, you, in response to Senator
Cornyn and Senator Talent, listed a few items. Like Senator
Reed, I don't want to rewrite the UCMJ or write this particular
piece of legislation here today, I like the idea that Admiral
McPherson discussed relative to picking out the best parts of
the different laws, regulations, and methods that we have in
place today, one of which is the international hearsay rule
that I understand is a little more liberal than our Federal
rules of evidence and the UCMJ rules, which I guess are about
the same. Are there any others? General Romig is the only one
that really addressed this, and I want to give everybody else
an opportunity to address that issue, too. Are there any other
issues like that which we should be thinking about, issues that
jump out at you and say, ``yes, this is something that you
really ought to look at,'' from the standpoint of modifying
current UCMJ provisions?
General Sandkulher. Senator, you would have to look closely
at the rules of evidence, in general. You would have to look
closely at--if you want to--the exclusionary rules for what's
an unlawful search and seizure. Exclusionary rules have a
purpose in our jurisprudence, in a lot of ways, to prevent
unlawful activity by police officers. That's why we exclude
certain evidences taken in violation of your right against an
unlawful search and seizure. Can we even have that on the
battlefield? That's within the general rubric of military rules
of evidence. I think you have to look very closely. That goes
with the classified information and other security information.
The names of witnesses. How do we handle providing the names of
witnesses in the trail of a detainee where that witness may
have family still remaining in an area of danger? Do you do
that? Some of the international tribunals have provisions where
witnesses testify without their real name being exposed. There
are a variety of those areas that we would look at.
Senator Chambliss. Good points.
Does anybody else have anything that kind of jumps out at
you?
General Sandkulher. Thank you, sir.
Admiral Hutson. Chain of custody would be an issue I
believe.
Senator Chambliss. I think General Romig alluded to that
earlier, as well as right to counsel and some of those basic
things.
With respect to classified information, I understand that,
under the UCMJ, the tribunal judge has the right to review
classified testimony before it's given, he or she can basically
clear the courtroom, and makes a decision as to what's done
with it that classified information. Under the UCMJ appellate
process, there would be a military review, but, under the DTA,
the DC Circuit Court ultimately would review that particular
information, if we're talking about following that process.
Does anybody have an opinion about whether or not that's the
way to go here, or should we continue to allow the appellate
process to only follow through the military appeals?
Admiral Hutson. I'd prefer the military appeal system. It's
tried and true.
General Romig. Yes, sir, they're certainly familiar with
the procedures and all of that. I think either one would work.
I think it would work more efficiently through the military
process.
Senator Chambliss. It's not that I don't have confidence in
our Federal system, by any means, but it just seems to me that
the military appellate process would be better to follow.
Going back to this issue, in the interrogation process,
title 18 subjects civilian and military personnel to the
provisions of Common Article 3. I don't know whether I've said
that correctly but that's the way I understood it. In any
event, civilian and military personnel are subject to Common
Article 3 when it comes to interrogation.
Should we take this opportunity to modify title 18 and
clarify it?
General Rives. Senator, it would be helpful if we gave
better definition to some of the terms that are in Common
Article 3 and also in--I believe you're referring to title 18
in, perhaps, the War Crimes Act?
Senator Chambliss. I said ``article,'' but I meant title
18. Excuse me.
General Rives. Section 2441 is the War Crimes Act, and one
of the real problems I see is it is defined as a war crime when
we have conduct that violates Common Article 3. It would be
helpful for Congress to better define those items within Common
Article 3. For example, ``humiliating and degrading
treatment,'' to define, in or out, certain items to help the
interrogators and others understand what the sense of Congress
is for defining those terms. That would be very helpful.
Senator Chambliss. Does anyone else have a comment on that?
[No response.]
No? Okay.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator Chambliss.
Senator Roberts.
Senator Roberts, of course, gentlemen, is chairman of the
Senate Intelligence Committee on which I am privileged to
serve, and our leadership have invited that committee to
participate in this very important oversight and review process
by the Senate.
Senator Roberts.
Senator Roberts. Thank you, Mr. Chairman.
My questions are repetitive and pretty much the same
questions asked by Senator McCain, Senator Clinton, Senator
Graham, Senator Cornyn, Senator Talent, and now Senator
Chambliss. This comes under the heading of repetitive
questioning, which one international court said was in
violation of Common Article 3 and would cause you great
anguish. Do you feel I am in violation of Common Article 3? Are
you feeling fear and anguish yet? I don't want to cross any
boundaries here.
I just want to say that I think Common Article 3 standards
for detention and interrogation are incredibly vague. We've
already said that. What constitutes an ``outrage upon personal
dignity''? What is, exactly, ``humiliating treatment''? What is
the precise definition of ``degrading treatment''? By the way,
if you violate this article, whatever it means, you have
committed a war crime under U.S. law, which has led to a lot of
risk aversion.
The question is, do the Services have a body of experience
in making specific determinations as to where the line must be
drawn in deciding whether a particular conduct is prohibited?
Outrage upon personal dignity, humiliating treatment, or
degrading treatment. Most of you have indicated that we do have
that background knowledge and that we can do this. I'm
extremely concerned that if Congress doesn't act to expressly
clarify what Common Article 3 means for detention and also our
interrogation efforts--Senator Graham touched on this--that
American courts will resort to decisions of the European Court
of Human Rights or the International Criminal Court to
determine what is and what isn't ``degrading treatment.''
Senator Cornyn posed several interesting questions. My
lawyers tell me that, under those international precedents,
putting two detainees in the same cell, which Senator Cornyn
has already indicated, with an unscreened facility, would
constitute a violation of Common Article 3. What he did not say
is that there is a definition of how high the screen ought to
be, and what the conditions ought to be, in regards to having
something that would be humane or would be--that's not exactly
the word that I want. But that's what the European Court of
Human Rights has held. What about the close confinement in a
cell without immediate access? I'm not talking about leaving a
cell, marching down a hall, and then going to outdoor exercise.
I'm talking about immediate access. The same court held that
that was degrading. They have also said that a long wait on
death row for a convicted murderer who is sentenced to death
was also degrading treatment.
What if a terrorist detainee has continued intelligence
value, if he has information that could save American lives?
Would that long wait then constitute degrading treatment under
Common Article 3?
The European courts have said that ``degrading treatment''
includes conduct that is intended to arose feelings of fear,
anguish, and inferiority, possibly to break the detainee's
moral resistance. I would venture to say that the interrogators
who questioned Khalid Sheikh Mohammed, or the interrogators who
questioned the high-value targets who led to information of the
Sheikh, who led to the death of Mr. Zarqawi, could conceivably
be held accountable under Common Article 3. I don't think
that's what we want. That's not what you want. That's not what
we're trying to do.
That kind of definition certainly gives our service men and
women very inadequate guidance and certainty in fighting this
war, especially when the violations of these vague standards
now constitute a war crime.
Gentlemen, my experience on the Intelligence Committee, in
terms of briefing, and my experience on the Armed Services
Committee, in terms of briefings, indicating that everybody's
worried about crossing the line. We're not even walking up to
the line. One of the things that the 9/11 Commission said, one
of the things that our weapons of mass destruction (WMD)
inquiry said on the part of the Senate Intelligence Committee,
one of the things that the WMD Commission said, and every other
think tank or study group or inquiry that has said, is, we have
to stay away from risk aversion. Obviously, these terms should
be defined with certainty, for the sake of our service men and
women who handle the detainees in the war on terrorism, and
they should be clearly defined in U.S. law, it seems to me,
rather than left up to foreign courts and also the prosecutors.
As I've indicated, many Senators have asked these
questions. You have responded. I think you agree. I think this
is so terribly important. If we're told in the Intelligence
Community that detention and rendition and finding out
intelligence represents anywhere from 40 to 60 percent,
depending on the circumstance, of what we do to make America
more safe, this is, indeed, a very serious question.
Could you explain how Military Rule of Evidence (MRE) 505
and the CIPA differ on process? Do you believe that additional
protections for classified information are required, beyond the
MRE 505? For example, the right to preclude the defendant from
being present during the presentation of some evidence or
additional procedural protection for the use of classified or
sensitive information? Finally, are there international
precedents that we can draw on? For example, in the
International Criminal Tribunal for the former Yugoslavia, or
the International Tribunal for Rwanda--I think somebody
mentioned that--as we consider the appropriate standards for
access to classified information, right to speedy trial, and
access to proceedings by the defendant?
Those three deal with classified information. If anybody
would like to take on one or all three, I would like to hear
from you.
General Black. Sir, I'll start with question 1, and MRE 505
and the comparison with the CIPA. I don't have CIPA in front of
me, but I believe that I'd be correct in saying that MRE 505 is
consistent with CIPA in every respect, and provides a procedure
that we could well adapt to the commissions process, a
procedure that starts with alternatives for considering the
evidence that's attempting to be introduced into the trial, and
then allows for an in-camera process by the judge to perhaps
redact pieces of the information to make it admissible. It
ultimately leads to a decision by the trial team as to whether
to go forward with that particular piece of evidence.
I think that CIPA and the application in MRE 505 can be
adapted to the commission's process.
Senator Roberts. That is certainly good news if that is the
case and I appreciate your response.
Anybody else have any comments?
General Sandkulher. One of your other questions, sir, was
about the Rwanda and the Yugoslav rules.
Senator Roberts. Yes.
General Sandkulher. There are procedures there that we
could draw on that would be helpful for the handling of
classified information.
Senator Roberts. All right. I appreciate it.
Admiral, you have something to say?
Admiral McPherson. I would agree with General Black. We
have a wealth of experience under MRE 505 that's probably being
used today in a court-martial someplace. The experience is
there. We would have to change MRE 505 because normally our
experience is, it applies to evidence that the accused already
is in possession of, already is aware of. Where, in most of
these commission cases, it would be classified evidence that
the Government would want to be using against the detainee.
Senator Roberts. Exactly.
Admiral McPherson. It would require some modification, but,
yes, we have the experience, and we think we could sufficiently
use it.
Senator Roberts. All right.
I thank you, Mr. Chairman.
Chairman Warner. Thank you very much.
Gentlemen, Senator Levin and I have further questions, but
I think it would be appropriate if we took about a 7-minute
break. We've been in session continuously for 3 hours, and 7
minutes is well earned. [Laughter.]
[Recess at 1:00 p.m.]
[Resumed at 1:07 p.m.]
Thank you very much, gentlemen. We'll resume now.
Senator Graham, take your time. You have other commitments,
but I'm going to remain here. Go right ahead.
Senator Graham. Thank you, Mr. Chairman. I very much
appreciate that.
I appreciate the witnesses trying to enlighten the
committee about what we need to do about the law. We're trying
to enlighten ourselves on what to do politically.
I want to get back to something that Senator Clinton
brought up. One of the big confusions, gentlemen, that I
believe has been created since this war began is the idea that
there's one of two options, as Senator Clinton was trying to
indicate, that every enemy combatant has to be tried or let go.
The truth is that every enemy combatant is, per se, not a war
criminal. Do you all agree with that statement?
General Black. Yes, sir.
Senator Graham. An affirmative answer by the panel. As a
matter of fact, we would not want to create a policy where
every POW, lawful or unlawful, was per se, a war criminal,
because that would put our own people at risk.
Chairman Warner. I'm just wondering, Senator Graham, if we
could indicate that they seem to all agree with your statement.
Senator Graham. Yes, I feel like I'm back in a court-
martial. Let the record reflect a positive response from all
the witnesses. [Laughter.]
Okay. We have a Combat Status Review Tribunal (CSRT)
procedure, that Senator Levin and myself and others worked on,
that deals with determining enemy-combatant status. That is a
noncriminal procedure that is designed to comply with Article 5
of the Geneva Conventions, a competent tribunal. Does everyone
at the panel believe that the CSRT procedures and the
Administrative Review Board (ARB) procedures, as constituted,
meet the test of what the Geneva Conventions had in mind in
determining status?
General Romig. Yes, sir.
General Black. Yes, sir.
Senator Graham. Affirmative response from all the
witnesses.
Not only does it meet the test, I'm quite proud of it.
Because of people like yourselves, it's gotten better over
time. I would present this challenge to you. If you can think
of ways to make it better--this is always a work in progress.
We did something unprecedented in the DTA. Not only did we
put in a place a CSRT and ARB procedure that would comply with
Geneva Conventions status determination, competent tribunal
standards, we also allowed civilian review of those decisions
for the first time. Do all of you agree that has strengthened
the procedures?
General Romig. Absolutely.
Senator Graham. Affirmative response from all concerned.
War criminals and enemy combatants are different, so the
idea that if you don't try them, you have to let them go, is a
false premise. I'm going to get us back to what this great
debate's been about today--there seems to be, after Hamdan, one
or two ways to do this. Do you all agree that the President, if
he chose to, could, under the Hamdan decision, try these people
in a full-blown UCMJ setting tomorrow, if he wanted to?
General Black. Yes, sir.
Senator Graham. Affirmative response by all members.
Do you all agree that would be a very bad decision?
Admiral McPherson. Yes, sir.
Senator Graham. Affirmative response by all members.
I would like to say, for the record, I appreciate the
President not going down that road, because it would create too
many problems for our country.
The idea of us politically deciding whether to start with
Military Order 1 or the UCMJ seems to be form over substance if
you get to the right place. All of you are nodding your head.
I'm going to throw a wrinkle into this. I think there's a legal
reason why we would want to choose starting with the UCMJ and
build out. My belief is, gentlemen--and please comment if you
think I'm wrong--that after 1951 things changed when it came to
military commissions. Military commissions had been instituted
during World War II and other times in our history by the
executive branch under his inherent authority as Commander in
Chief, with very little congressional blessing or oversight. Is
that a correct statement?
General Romig. Senator, there were provisions in the
Articles of War for military commissions.
Senator Graham. Right. Those provisions authorizing
military commissions were very nebulous, as best.
General Romig. Absolutely.
Senator Graham. After World War II, Congress seems to have
made a conscious decision, when it enacted the UCMJ, to include
military commissions within that document. Is that correct?
Admiral McPherson. Yes.
Senator Graham. Congress seems to have made a conscious
decision to make a more robust system around military
commissions, in terms of procedural rights. Is that correct?
Affirmative response.
What I'm trying to get to is that when Congress, after
1951, decided to put the military commissions within Articles
18, 21, and 36, whatever the numbers are, and we said military
commissions, to the extent practical, should follow the UCMJ.
It seems like we resolved that debate along the lines that any
military commission should have as its source of being the UCMJ
model. Do you disagree with that, General Black?
General Black. Yes, sir, I do. I think that starting with
the UCMJ as the baseline of trying to modify that would be a
task of monumental proportions, and that's why I think that
it's better to throw the UCMJ on the table, along with the
commissions as we have them today, and along with other models
that we can derive from out there in the world.
Senator Graham. Along those lines, I guess my legal
argument is, isn't there some buy-in here by Congress, by
referring back to the UCMJ, to the extent practical, military
commissions should follow the UCMJ model, that we made a
decision, a conscious decision--it wasn't a statutory
decision--that we wanted to start from that premise? Does
anybody like to comment on that concept?
Admiral?
Admiral McPherson. One of a couple of points of departure
with the Hamdan decision, and that's the use of the word
``uniformity.'' Whenever the Supreme Court, with all respect,
has delved into the UCMJ, the practitioners of the UCMJ end up
being surprised by their decisions. This is one of those cases.
Prior to Hamdan, we had always interpreted, assumed, that
``uniform'' meant the rules were the same among the Services,
not that they were the same for the courts-martial,
commissions, tribunals, those provost courts. Now we're told,
by Hamdan, that's wrong. ``Uniform'' means that the commission
rules and the court-martial rules must be the same.
Senator Levin. Except as not practicable?
Admiral McPherson. Correct. Yes, sir.
Senator Graham. Okay. But ``uniformity'' has taken a
different meaning.
Admiral McPherson. Under the Supreme Court's decision in
Hamdan, yes, sir.
Senator Graham. I would argue that Congress, by giving
military commissions, as a separate option, to be used in
trying people, understood there would be differences, so
``uniformity'' never meant that everything had to be like the
UCMJ, or why have a military commission option? Congress
understood there would be differences.
I think the Court's decision is exactly what you've said,
that we can't do this in a legal vacuum, that, from the Court's
analysis of ``uniformity,'' we would be well-advised, as a body
here, to try to create uniformity now between military
commissions, the UCMJ, and, to the extent practical, or
whatever adjustments need to be made, General Black, explain
why those adjustments are needed, in terms of practicality and
national defense.
Admiral Hutson, is that wrong?
Admiral Hutson. No, I think the Court was saying that
Congress had not given the President the authority to deviate
from the UCMJ. Because of that, the commissions that he created
had to be ``uniform,'' in the sense that Admiral McPherson uses
that, with courts-martial. What we're suggesting now, you're
suggesting, is that we can use that as the starting point and
deviate so far as practical or necessary.
Senator Graham. All due respect, General Black, I see that
there is a substantive legal difference between how you
approach this after Hamdan. I think Hamdan is telling us
basically that you can deviate from the UCMJ, but you have to
articulate why. You can be different than the Federal rules of
evidence. The military rules of evidence are the model. There's
plenty of differences. You just articulate why. I would argue,
gentlemen, there is a big difference, after Hamdan, how we do
this. You get to the same place, but I don't want the Court--I
think Justice Kennedy is telling us this, that uniformity now--
--
General Romig?
General Romig. I agree, sir. There is sometimes a
misconception that UCMJ equals court-martial, always. Quite
frankly, the UCMJ is more than the court-martial.
Senator Graham. Absolutely.
General Romig. That is the biggest part in there. Military
commissions are a creature of the UCMJ now. That's, I think,
what you're saying, that we need to do it under that process.
Senator Graham. I'm saying, after Hamdan, ``uniformity''
has a different meaning. That's all I'm saying. That the
``uniformity'' we relied upon all the years that I was in the
JAG business, is now changed. Right or wrong, it's changed.
General Romig. Right.
Senator Graham. We'll get to the same place, General Black.
We're not going to have a UCMJ military commission model
procedure that undermines our national security. It will be
challenging, it will be robust, and it will be fair.
I just wanted to throw that out for the committee to think
about, that uniformity has changed after this decision; and how
we start the process, to me, is very important.
One of the concerns I have after the Hamdan decision is
that Common Article 3, before Hamdan, had not been applied to
al Qaeda members. The President, as you said, Admiral Hutson,
in 2002, said, that we will treat them humanely, but not under
Common Article 3. Does Common Article 3 go beyond the McCain
language, in terms of treatment requirements--cruel, inhumane,
degrading? What do you think, Admiral?
Admiral Hutson. I think that there are some deviations of
the words. I think Senator Cornyn pointed out ``humiliating''
is in Common Article 3 and not in the DTA. I don't think that
there is a wits worth of difference. I think that you are
comfortably within the confines of Common Article 3 with a DTA.
Chairman Warner. As long as we abide by the McCain
amendment.
Admiral Hutson. Absolutely. Yes, sir.
Senator Graham. I totally agree with you. But there's two
different scenarios that we're talking about here. This idea
that a military commission, fairly constructed, would impede
combat operations, is that a false idea?
General Black?
General Black. Sir, I think that, properly constructed,
it's not going to impede combat operations.
Senator Graham. Does everyone agree with that? So, all the
people who are out there ranting and raving about having a
military commission with some basic due process cripples us in
the war effort, you're flat wrong. You don't know what you're
talking about. You're talking politically rather than legally.
Military operations and prosecuting war crimes are two distinct
endeavors.
Now, you're training our troops to follow the Geneva
Convention standards on POW treatment for every enemy combatant
that we may come in contact with. Is that correct?
An affirmative response.
This is important, Mr. Chairman. From the boots on the
ground, we don't worry about the differences. We train as if
they were members of a uniformed service representing a
sovereign nation. Don't ever change that, because we don't want
to confuse the troops.
Once we get these people, then the second layer begins to
come into being, and that is, what intelligence value do they
have? That's where the military will have experts come in, or
the civilian community, the Central Intelligence Agency (CIA),
and they will now engage in conduct differently than capturing
them on the battlefield. To me, that is the hardest thing that
we face as a Nation. Don't ever change what you tell our troops
to do. McCain language, Common Article 3. You just keep
teaching the Geneva Conventions, and they'll be okay. But I now
am worried about the military intelligence officer, the CIA
operative in unknown places throughout the world. Let's come up
with a system that puts them on notice of what's inbounds and
what's not.
Last year, Senator Levin and I allowed an intelligence
operative, or CIA official, to raise as a defense if they're
ever prosecuted under title 18 for violations of human rights
or the law of armed conflict, ``I was following orders.'' We
used the UCMJ standard--not the Nuremberg standard, but a
standard available to all military members. If you raise, as a
defense in your court-martial, ``The Lieutenant told me. I'm
the Corporal,'' the corporal is immune from prosecution only if
a reasonably ordinary person in like circumstances would have
believed the order to be lawful. Do you think that would be a
fair thing to do for our CIA folks and our military
intelligence officers when they try to implement
interrogations? Think about that. Admiral Hutson, what do you
think?
Admiral Hutson. My initial reaction, and I haven't thought
this through because I haven't thought about it----
Senator Graham. This one's kept me up at night.
Admiral Hutson.--is that the standards ought to be the
same. The people at that stage of the game, as important as
their business is, are in a significantly different position
than the boots on the ground are on the battlefield.
Senator Graham. We're moving from now fighting a war to
gaining intelligence against a terrorist enemy to thinking
about prosecuting. We're beginning to move.
Admiral Hutson. Right.
Senator Graham. How do we make that movement?
General Rives, while he's thinking about it?
General Rives. Senator, I have no problem with the
Intelligence Community gathering intelligence effectively.
Speaking to a lot of folks in the Intelligence Community, and
having read a fair amount about it, I don't believe they need
to cross the lines in violations of the DTA or Common Article 3
to effectively gather intelligence. Sometimes we will gather
intelligence, knowing that we're not going to be able to use
that evidence against an individual in a criminal court. That's
okay. Sometimes you can't have your cake and eat it, too.
Senator Graham. Would you agree that some of the techniques
we have authorized clearly violate Common Article 3?
General Rives. Some of the techniques that have been
authorized and used in the past have violated Common Article 3.
Senator Graham. Does everyone agree with that statement?
Affirmative response by all concerned.
Now, those of us in elected office, as well as this panel,
need to find a way to be fair to those people who have been
following orders that were clearly not outrageous, in terms of
the way they were delivered.
I just want to end it, Mr. Chairman, that I think we can
construct a military commission using the UCMJ as our model
that we all can be proud of. We can do it quickly. Well, not
quickly. If we can do it, we'd have a great product that will
be fair to the accused and allow us to defend the Nation and
the world will say is fair.
I do need your help. We desperately need your help to find
out how Common Article 3 and title 18 can work together, in the
past and in the future, because the troops on the ground know
what to do. Keep telling them what to do, ``treat them all as
POWs and you'll never go wrong.'' But once you get that high-
value detainee in an interrogation environment, we need to
think long and hard about how to conduct those interrogations
and putting our people on notice what these terms mean. To me,
that's the hardest thing that lies ahead for us as a Nation.
Any comments? Admiral Hutson?
Admiral Hutson. I think there are times in which, as a
Nation, as interrogators, we're not going to be able to do what
you might want to do in order to get information because we
have these rules. We can't say that because this is our war,
and as awful as the terrorists are, that we're going to throw
the rules over the side in order to get information, because we
have to remain true to ourselves, remain true to our
traditions, and look forward, not only to the next war, but to
the peace, and be careful to ensure that our troops, who are
more forward-deployed than all other troops combined, by any
definition of ``forward deployment,'' who are, therefore, in
harm's way, when they're the interrogatees, rather than the
interrogators, we have a leg to stand on.
Senator Graham. The reason I bring this uncomfortable topic
up, is that we do have to make that conscious decision, because
those of us who will advocate that decision are going to be
accused of caring more about the terrorists than we do our
national defense. I think all of us here in this hearing today
care equally about our national defense, and we've come on the
side of the best way to protect the Nation is to adhere to the
values that made the Nation strong. The best way to take care
of the troops is to make sure you don't engage in conduct that
could come back to haunt you.
I appreciate your testimony and look forward to working
with you, as how we work all this out.
Thank you.
Chairman Warner. Thank you very much. Senator, before you
leave, you and I both, having been members of the bar and so
forth, always think of that famous Scales of Justice. There's a
real challenge before Congress now to make sure that Scales of
Justice remains in balance, and, at the same time, that our
forces can protect this Nation. It seems to me, if we let it
go, Federal courts will have us right back up here.
Senator Graham. Well said, Mr. Chairman. If I had all of
the answers, I would write a book and sell it. But I don't. I
just do appreciate you and Senator Levin having this hearing,
because this is probably the most important thing we will do in
the war on terrorism for years to come. It will survive the
next President and the next President after that. We have a
chance to start over again. We should welcome the opportunity
to start over. We should not be fearful of coming up with a new
system. We should embrace it. We should look to every source of
law we can, General Black, to get it right. I think we would be
well-served starting with what we know works--and it has been
in place for a long time--the UCMJ.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator.
Senator Levin. Mr. Chairman, I'm wondering, while Senator
Graham is here, if I could just add one other thing. In
addition to the things which both of you have said, it could
also help to restore our credibility as a nation of laws and a
nation that follows and believes in practicing human rights,
not just talking about human rights, because of the importance
that we be perceived this way if we're going to win the war on
terrorism. With all the people whose help around the world we
need, and whose assistance we need, and whose information we
need, we need them to believe, basically, in us, as well as our
cause in fighting terrorism. This is an opportunity, as you,
Mr. Chairman, Senator Graham, and others have said, to build
back that kind of confidence in us, and that perception of us
as a nation of believers in human rights and practicers of
human rights.
Senator Graham. If I may, and I promise I'll shutup. You
keep bringing up emotions within me that I think are important.
To our House colleagues, no one on this panel, no one in this
committee hearing--wants to come up with a procedure to weaken
our Nation. No one here wants to come up with a procedure to
let the terrorists go, to compromise national security. That's
not what this discussion is about. We want to come up with a
procedure to strengthen our Nation, make us stronger, not
weaker.
My goal, simply put, Mr. Chairman and Senator Levin, is to
produce a product that is a collaborative effort between the
executive and legislative branch that the courts will review
and say is fair. Then we can go to the world and say, ``All
three branches of Government view the way we treat detainees,
interrogate them, and try them, as one. America, when it comes
to the war on terrorism, in terms of legal infrastructure, is
one.'' That would do enormous benefit in protecting our troops
in the future and restoring our image that has been damaged.
Chairman Warner. I share in that. When I started this
hearing, I said that the eyes of the world are upon us, and I
meant it. It's the most serious thing that we're going to do.
Senator Levin. Mr. Chairman?
Chairman Warner. Yes?
Senator Levin. I didn't mean to interrupt you, but I wanted
to catch Senator Graham before he left, because he's raised,
and others have raised, a question which may be addressed in
section 1404 of our DTA. That has to do with the fear that
people might be prosecuted--our troops or intelligence
officers, either one--based on various interpretations of
Common Article 3 of the Geneva Conventions. Section 1404 of the
DTA establishes the Corporal's Defense not just for troops, but
for anybody, as I read it--anybody, any officer, employee,
member of the Armed Forces, or other agent of the United States
Government who is a United States person arising out of that
person's engaging in operational practices. So, we do have that
Corporal's Defense applied not just to our uniformed folks, in
the law that you've drafted, that we all worked on, but for
every agent/employee. If that is true, it is beyond Guantanamo,
it is anywhere in the world, if the way I read that is
accurate.
Senator Graham. Yes, I think, from just a cursory review,
that that solves the problem. It's a problem that needs to be
solved.
Senator Levin. I agree with that.
Senator Graham. If there's a better way to solve it, I'm
openminded to it.
Senator Levin. Thank you.
Senator Graham. Thank you.
Chairman Warner. Senator Levin, I now turn to you, and then
I'll do the wrap-up.
Senator Levin. Mr. Chairman, the committee has received a
letter from five retired senior military officers recommending
that Congress adopt a system based on the UCMJ Manuals for
Court-Martial, acknowledging that there may be a need for
narrowly targeted amendments to enhance the already strong
protections of classified evidence in the UCMJ to accommodate
specific difficulties in gathering evidence during a time of
war and other narrowly tailored exceptions. I would ask that a
copy of this letter from our five retired officers, including,
I see here, Admiral Hutson, who's with us today, but there are
four others who are not, that this letter be made part of the
record.
Chairman Warner. Without objection.
[The information referred to follows:]
Senator Levin. One of the things that this letter says is
something which all of our witnesses here today have
emphasized, that from bootcamp to officer schools, every
sailor, soldier, airman, and marine learns that the rules of
humane treatment embodied in Common Article 3 of the Geneva
Conventions are part of the core ethic of our Armed Forces and
the highest law of our land. While questions can be raised
about ``how do you define this, or how do you define that?'' in
Common Article 3--and they're legitimate questions--there can
be no doubt. Although the rest of you didn't sign this letter,
from what you've said here today, I believe that you would all
agree that from bootcamp to officer schools, every sailor,
soldier, airman, and marine learns that those rules are part of
the core ethic of our Armed Forces. Is that a fair statement,
Generals? Admirals?
Chairman Warner. Let the record reflect that each of them
assented to your question.
Senator Levin. Thank you.
Admiral, when you responded to Senator Reed's question
about whether or not one possible approach here would be to
have the President make recommendations of specifics, and that
perhaps we adopt more general rules, and then, after those
general rules were adopted, the fleshing out into more
specifics could be done by the executive branch, as one
possibility. If that possibility were pursued, would you
personally recommend that the specifics, particularly where
there's deviations from the law that applies in UCMJ--be sent
to Congress for our yea or nay?
Admiral Hutson. Yes, sir, I think I would. As I said
earlier with regard to the Hamdan decision, it stands, among
other things, for the proposition that this needs to be a
dialogue between the executive and Congress, and that Congress
should be right smack in the middle of it. This should be your
creature. I think Congress should approve all the narrow,
specific, well-articulated deviations that the President
considers to be necessary, and pass on that, yea or nay. How
you do that, specifically, the mechanics by which that is done?
There are a variety of different ways to do that. I think that
Congress has to be involved in it. Among other reasons, it
clearly satisfies, then, the Court's need for congressional
authorization for whatever it is you do.
Senator Levin. General Romig, do you have a comment on
that?
General Romig. Sir, I agree. That's why I made the comment
about Congress perhaps taking the lead, doing a working group,
headed here in Congress, that brings in all the experts and
gets input from DOD and gets inputs from those outside, and
then the onus is on Congress to come up with this product, but
to draw upon all the resources that are out there. That's why I
suggested that. There are a number of different ways of doing
it, but I think, ultimately, it has to go through Congress.
Senator Levin. Any of our other witnesses want to comment
on that question?
General Sandkulher. Senator, we could follow a procedure
that's similar to what we do today, in that when we have
statutory construction changes, statutory changes, we, of
course, have to come to Congress and change the UCMJ. But then,
the rules and the procedures for the Manual for Courts-Martial,
the Rules of Evidence, et cetera, are done through executive
order. That's basically a model that we all are familiar with
dealing with.
Senator Levin. There has been a lot stated about ambiguity
of Common Article 3. I think all of you have commented on it.
Common Article 3 talks about outrages upon personal dignity; in
particular, humiliating and degrading treatment. Humiliating
and degrading treatment. Last year's DTA actually had the
following language, that no individual in the custody or under
the physical control of the U.S. Government, regardless of
nationality or physical location, shall be subject to cruel,
inhumane, or degrading treatment or punishment. So, Common
Article 3 of the Geneva Conventions says ``humiliating and
degrading treatment'' is not allowed. Our own statutory law,
which applies to everyone, everywhere--CIA as well as DOD,
everybody in our custody--uses the words that ``nobody shall be
subject to degrading or inhuman treatment.'' I don't see that
one is more ambiguous, frankly, than the other. They both have
to be filled in by either rule or practice, seems to me,
whether it's under our law, called ``degrading or inhumane,''
or under Common Article 3 of the Geneva Conventions, called
``humiliating and degrading.'' Am I wrong on this?
I understand the argument about words not having specific
meaning. You have to fill them in either with some kind of a
regulation or with practice, but is there any difference in
terms of the level of ambiguity between our law, which we just
adopted, which prohibits ``degrading and inhumane treatment,''
from the Common Article 3 of the Geneva Conventions, which
prohibits ``humiliating and degrading treatment''? Is there any
difference in terms of the level of ambiguity?
Admiral Hutson. Senator, it's like ``cruel and unusual
punishment,'' it's just one of those things. In fact, Common
Article 3 has been on the books longer than the DTA has in
terms of having created a body of law. We need to follow the
definitions given to us by international courts, particularly.
They may be instructive, but they're certainly not directive.
That's just the nature.
Senator Levin. But my question is in terms of degree of
ambiguity, is there greater ambiguity in the words used in
Common Article 3, than there are in our own law, in any of your
views? I'll just look at all of you.
I'll take that as you don't--none of you see any
difference. I don't. But, anyway, I'll assume, from your
headshakes and nods and silence that I'm not misinterpreting
anything.
General Rives. Senator, from my perspective, part of the
problem is that Common Article 3 has been on the books more
than 50 years now, almost 60 years, as an international treaty,
and as a number of your colleagues pointed out, there have been
some examples that don't play very well in Peoria. As people
say, ``this amounts to degrading treatment,'' and it shocks the
conscience, frankly, of American citizens to say, ``why would
that potentially amount to a war crime under title 18?''
Senator Levin. I would agree with them. But what about our
word ``degrading''?
General Rives. Our word, we can define without having to
worry about the international community, and to a degree, we
have Justice Stewart's definition of ``pornography'': ``I can't
define it, but I know it when I see it.''
Chairman Warner. You know it when you see it.
General Rives. Yes, sir.
Chairman Warner. I knew him very well, Potter Stewart.
Obiter dictum.
Senator Levin. I accept what you say about there's been
some interpretations we don't buy, but, in terms of the level
of ambiguity in the word themselves is there any greater level
of ambiguity in the word ``degrading,'' when it's used in our
statute than the word ``degrading'' when it's used in Common
Article 3?
We don't buy other people's interpretation of the word,
but, in terms of the level of ambiguity, there is no greater
level.
Okay. When our procedures have been perceived by much of
the world as falling short of treating people the way we want
our people to be treated, does that, would you agree, hurt us,
in terms of gaining support for our war on terrorism?
General Romig?
General Romig. Absolutely. We have always taken the high
ground on legal issues like this; and, to the extent that
somebody perceives us not doing that, I think it's diminished
us some.
Senator Levin. Does it hurt us in carrying on a war against
terrorists effectively if people perceive us as falling short
of humane treatment?
General Romig. I think it does. As you pointed out, or
somebody pointed out, that in order to get support from other
countries, not only do they need to feel like the effort is the
right effort, but the reason behind it, and the people that are
engaged in it, are doing the right thing. If we have people
perceiving, in other countries, that we're not adhering to the
rule of law, there is not going to be a lot of support, among
the populace, at least, in that country.
Senator Levin. That was my last question. Does anyone else
want to add to that answer? [No response.]
Thank you.
Thank you all, again, for your service, as well as your
testimony.
Chairman Warner. Thank you, Senator Levin. I appreciate it.
Gentlemen, I'm going to read this question, because I want
those studying the record to note--this committee will come
back and study it, but I just want to put in the record and
read it in. Senator Graham touched on it.
Should Congress attempt to build a system of permanent
authority for law-of-war military commissions generally or
concentrate on fixing the immediate problems in Guantanamo?
Senator Specter recently introduced S. 3614, a
comprehensive bill which would not only authorize and regulate
military commissions, but would also provide a statutory basis
for the combat status review tribunals and administrative
review boards that review the status and continued detention of
all Guantanamo detainees, whether suspected of war crimes or
not. Should Congress address these matters in legislation now
or limit itself to the points raised by the Court in Hamdan?
We will address that as we go along. I just wanted to put
that in the record.
Lastly, on Protocol I, it's been asserted that the 1977
additional Protocol I to the Geneva Conventions, which the U.S.
refused to ratify, has, over time, become a customary
international law. Do you think that to be true, Admiral
Hutson?
If you want to take it for the record, do so.
Admiral Hutson. Yes, let me take it for the record. I need
to take that for the record.
Chairman Warner. Well, it's a tough one.
Admiral Hutson. I need to think it through.
Chairman Warner. It's a tough one. I think I'll let all of
you take that one for the record, then.
[The information referred to follows:]
Congress's efforts should provide permanent and lasting executive
authority for conducting military commissions. There is a need for such
authority due to the current armed conflict, and there will be a
similar need in all future conflicts. The United States has not
officially recognized the 1977 Protocol I in its entirety as customary
international law. Also, it has not drawn bright-line distinctions
about which portions of Protocol I have achieved that status. Rather,
it has noted that there are varying degrees of international acceptance
and observance for various provisions. The United States has elected to
support some portions of Protocol I purely as a matter of policy. For
example, the United States has traditionally supported the principle
that medical units should be respected and protected at all times and
not be the object of attacks or reprisals. Similarly, it has supported
the principle against refusing quarter--that is, no order shall issue
that there will be no survivors, that an adversary be threatened with
such an order, or that hostilities be conducted on that basis.
Chairman Warner. I close by the very difficult question
which we're going to have to deal with, the classified
information. Substantial attention has been given to the
question of classified information and its use as evidence in
the commissions. In your opinion, can we, Congress, devise a
statute that passes constitutional statutory muster without
giving the accused and counsel possessing the necessary
clearances access to such material in some form? Again, take
that one for the record.
[The information referred to follows:]
Yes, Congress can devise a statute that strikes a balance between
the rights of an accused before military commissions and national
security concerns over the disclosure of classified information. Such a
statute might resemble the existing Military Rule of Evidence (MRE) 505
that is used in courts-martial. The MRE 505 process deals specifically
with access to classified information and how that classified
information can be placed in a public forum. With modifications, this
process could strike the correct balance.
Chairman Warner. There's a lot of sensitivity in that, and
it's one we have to deal with.
So, I let you answer those for the record, because I think
they need careful reflection.
I want to thank Senator Levin and you and other members of
the committee. I think our committee, if I may say, has
conducted this very important hearing with a matter of calmness
and thoroughness and fairness, basically unemotional approach
to a very tough subject. This subject deserves no less as we
try, as a Congress, to fulfill our duties. Most importantly, as
I opened, the end game is the man and the woman beyond our
shores who are trying to preserve our democracy and freedom. At
the same time, we want to stand as a nation in the eyes of the
world with one that accords the proper balance to human
dignity, human rights, and legal rights.
So, thank you very much. I think you'll think back on this
day as a very important one in your respective careers. I'm
certain that those within your command look upon their senior
partners as having discharged their function with great dignity
in keeping with the finest traditions of our U.S. military.
Thank you. We are adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John McCain
common article 3
1. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, the Supreme Court found that Geneva Common
Article 3, which bars cruel and humiliating treatment, including
outrages upon personal dignity, applies to al Qaeda. In response, some
have argued that the terms included in Common Article 3 are vague and
undefined in law of war doctrine. In Tuesday's Judiciary Committee
hearing, for example, the head of Justice's Office of Legal Counsel
said that some of the terms are ``inherently vague.'' Is this your
understanding?
General Black. Though not precisely defined, the terms of Common
Article 3 are sufficiently clear for soldiers to continue to apply them
on the modern battlefield.
The proscription of Common Article 3 on ``humiliating and degrading
treatment'' and ``outrages upon personal dignity'' is not specifically
defined in the Geneva Conventions. In fact, the commentary observes
that the framers of the Conventions affirmatively decided not to define
the term because ``However much care were taken in establishing a list
of all the various forms of infliction, one would never be able to
catch up with the imagination of future torturers who wished to satisfy
their bestial instincts; and the more specific and complete a list
tries to be, the more restrictive it becomes.''
This is true of numerous legal terms commonly used in our own legal
system and in the military justice system. Article 93 of the Uniform
Code of Military Justice (UCMJ), for example, prohibits cruelty and
maltreatment. The definition given in the UCMJ is less than one
paragraph long and is meant to be exemplary, rather than exclusive.
Yet, we have successfully prosecuted soldiers for cruelty and
maltreatment of their subordinates.
The United States Army has been applying the standards of Common
Article 3 as a baseline for treatment of all individuals in all armed
conflicts for several decades. Recently, Congress, in section 1003 of
the Detainee Treatment Act (DTA) has provided greater clarity by tying
the meaning of ``humiliating and degrading treatment'' and ``outrages
upon personal dignity'' to a Constitutional standard that soldiers have
grown up with in our own American system and that they can understand
and apply.
While the wording of Common Article 3 may not be completely clear,
the standard of humane treatment is a standard that can be trained by
commanders and noncommissioned officers and that soldiers can continue
to apply on the battlefield.
Admiral McPherson. This text has been binding on the United States
since it became a party to the 1949 Geneva Conventions in 1956. Our
Armed Forces have had 50 years of practice in implementing Common
Article 31 which stands for minimum mandatory rules for humane
treatment. Army Regulation 190-8 (which is a joint service regulation,
applicable to all the Services) provides practical guidance for those
in the field on the meaning and effect of Common Article 3.
General Rives. Common Article 3 defines the minimum humanitarian
norms applicable in ``armed conflicts not of an international
character.'' Under section 1, the following acts are prohibited:
(a) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment, and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating
and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.
Most of these are self-explanatory. In any statute or treaty, there
are terms that must be interpreted by practitioners and ultimately are
left to the courts to define and thus provide reasonable parameters on
conduct.
The issue with Common Article 3 comes as a result of 18 U.S.C.
2441, which contains the war crimes provisions. Under section
2441(c)(3), behavior that violates Common Article 3 is a war crime. In
that light, clearer definition of the meaning of terms such as
``outrages upon personal dignity, in particular humiliating and
degrading treatment'' would provide useful guidance to the members of
the Armed Forces and ultimately to the courts who are required to
interpret the provision in the context of a criminal trial. Clarity
could be provided by either limiting the behavior to ``serious'' or
``outrageous'' violations or a list of specific offenses that would
define the terms.
General Sandkuhler. Common Article 3, as part of the full body of
the Geneva Conventions, has been binding on the United States ever
since it became a party to the 1949 Geneva Conventions in 1956. Common
Article 3 sets forth minimum mandatory rules for humane treatment that
must be followed in armed conflicts not of an international character.
But the Department of Defense (DOD) policy is to apply the Law of War
in all armed conflicts, regardless of how characterized, and in all
other military operations. As is the case with any legal document,
portions of the text of Common Article 3 are subject to interpretation.
A reasonable person standard should be the backdrop against which the
text is read.
General Romig. No. U.S. military personnel are trained to the
standards of Field Manual (FM) 34-52, the interrogation field manual.
These standards exceed the requirements of Common Article 3. As long as
they adhere to those standards, there should be no concern about
vagueness under Common Article 3. The standards in FM 34-52 have never
been challenged by the international community for being violative of
Common Article 3.
Admiral Hutson. The meaning of many legal terms are susceptible of
debate. ``Obscenity'' is perhaps the classic example, but ``probable
cause,'' ``reasonable doubt,'' ``reasonable man,'' and a host of other
terms could be faulted for being ``inherently vague.'' Indeed, I would
submit that by that test, ``inherently vague'' is inherently vague.
Fortunately, common usage and common sense serve to define them, albeit
perhaps not to a ``moral certainty.''
2. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, is there a body of opinion that defines Common
Article 3?
General Black. There are numerous sources which attempt to provide
clarity to the standard set out in Common Article 3.
As mentioned in the answer to question 1, there is no precise
definition for some of the terms in Common Article 3 of the Geneva
Conventions. However, Congress has provided a definition of torture in
18 U.S.C. 2440 and a definition of cruel, inhuman, or degrading
treatment of punishment in the DTA.
In addition, many governments, organizations, and commentators
throughout the world have sought to add clarity to the term. Others
such as the International Criminal Court, International Criminal
Tribunals for the Former Yugoslavia and for Rwanda, International
Criminal Court, International Committee of the Red Cross, and numerous
scholars both from the U.S. and from other countries have also provided
their insight into what the terms of Common Article 3 mean.
Admiral McPherson. In the case of Prosecutor v. Dusko Tadic at the
International Criminal Tribunal for the Former Yugoslavia (ICTY), the
ICTY, while not defining every aspect of Common Article 3, made it
clear that international law imposes criminal liability for serious
violations of Common Article 3, as supplemented by other general
principles and rules on the protection of victims of internal armed
conflict, and for breaching certain fundamental principles and rules
regarding means and methods of warfare.
General Rives. International law is a realm of law agreed on by
universal, or near-universal practice. International law, as long ago
defined by U.S. courts and accepted by Congress, comes primarily from
several sources, including international conventions and treaties;
customs and practices observed and accepted by states; and general
principles of international law recognized by civilized nations.
Where there are disputes about the exact meaning and application of
national laws, it is the responsibility of the courts to decide what
the law means. In international law as a whole, there are no courts
which have the authority to do this and thus it is generally the
responsibility of states to interpret the law for themselves.
Unsurprisingly, this means that there is rarely agreement in cases of
dispute.
It is a basic rule of sovereignty that the United States would not
be bound by the decision of a foreign or international tribunal that a
certain act constituted a violation of Common Article 3.
Interpretations provided by other state parties or courts are not
binding on U.S. practice or domestic interpretations. As in other
cases, how other state parties and courts have addressed an issue can
be helpful in framing issues and identifying concerns, but those
decisions or writings are not considered binding precedent that must be
followed by the United States. If universal agreement develops among
states that a specific conduct or act violates Common Article 3, then
the United States is bound to abstain from that act.
General Sandkuhler. There is not, to my knowledge, a body of
opinion which clearly defines Common Article 3.
General Romig. No, there is no universally recognized definitive
all-encompassing listing of Common Article 3 offenses. This is like so
many other areas of the law where precise definitions are not provided
for very good reasons. The drafters of the laws realized that they
could not conceive of every possible act that would run afoul of the
intent of the law. Examples in the UCMJ of offenses that do not provide
precise definitions include: violations of ``good order and
discipline''; violations of a ``nature to bring discredit upon the
Armed Forces''; and ``conduct unbecoming an officer''; to name just a
few. It is always dangerous to try to go into too much detail with
offenses that encompass a broad statement of intent such as these. As
one of the drafters of the Geneva Conventions and later the leading
commentator, Pictet, said regarding Common Article 3: ``However great
the care taken in drawing up a list of all the various forms of
infliction, it would never be possible to catch up with the imagination
of future torturers who wished to satisfy their bestial instincts; and
the more specific and complete a list tries to be, the more restrictive
it becomes. The form of wording adopted is flexible, and at the same
time precise.'' We must never lose sight of the fact that we are also
looking to protect our own servicemembers from such imaginative
torturers.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
3. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, what interpretation of Common Article 3
concerns the administration?
General Black. Questions concerning interpretations by the
administration are more appropriate for response by the General
Counsel, DOD.
Admiral McPherson. Concerns have been expressed over the
interpretation that Common Article 3 applies to members of al Qaeda
since they are neither combatants of a nation-state party to the Geneva
Conventions nor engaged in solely in an internal armed conflict.
General Rives. Common Article 3 defines the minimum humanitarian
norms applicable in ``armed conflicts not of an international
character.'' Under section 1, the following acts are prohibited:
(a) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating
and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.
Most of these are self-explanatory. In any statute or treaty, there
are terms that must be interpreted by practitioners and ultimately are
left to the courts to define and thus provide reasonable parameters on
conduct.
The issue with Common Article 3 comes as a result of 18 U.S.C.
2441, which contains the war crimes provisions. Under section
2441(c)(3), behavior that violates Common Article 3 is a war crime. In
that light, providing clearer definition of the meaning of terms such
as ``outrages upon personal dignity, in particular humiliating and
degrading treatment'' would provide useful guidance to the members of
the Armed Forces and ultimately to the courts who are required to
interpret the provision in the context of a criminal trial. Clarity
could be provided by either limiting the behavior to ``serious'' or
``outrageous'' violations or a list of specific offenses that would
define the terms.
General Sandkuhler. In my understanding, concerns have previously
been expressed with the interpretation that Common Article 3 applies to
members of al Qaeda, since they are neither combatants of a nation-
state party to the Geneva Conventions, nor engaged solely in an
internal armed conflict. I believe that the meaning of ``humiliating
treatment,'' as the term is listed in section 1(c) of the article, has
presented vagueness concerns as well.
General Romig. For a complete answer, you really would need to ask
an administration official. However, I suspect their biggest concern
relates to section (1)c: ``outrages on personal dignity, in particular,
humiliating and degrading treatment''. I further suspect that the
concern is that certain individuals would be subject to prosecution for
past practices in violation of these standards. Again, if we would be
outraged if it was done to U.S. servicemembers, then we ought not to be
doing it.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
4. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, and Brigadier General Sandkuhler, in Deputy
Secretary England's memo to the DOD, he stated his understanding that
all DOD procedures are in compliance with Common Article 3. Mr.
Dell'Orto, DOD's Deputy General Counsel, said the same thing at the
Tuesday hearing. If Common Article 3 is this vague, how is it possible
to determine that DOD is in compliance with its obligations?
General Black. Common Article 3 represents a baseline of treatment
that soldiers have recognized as applicable in all conflicts for
several decades. In fact, in most cases, soldiers have, as a matter of
policy, been providing greater protections than those afforded in
Common Article 3. While there may be some ambiguity as to minimum
protections provided by Common Article 3, soldiers have been trained to
treat all individuals with dignity and respect and in a humane manner
rather than to apply minimum standards.
Admiral McPherson. DOD has been implementing Common Article 3 for
the past 50 years. The concept of humane treatment has not changed.
What is different today, following the Supreme Court decision in the
Hamdan case, is the categories of persons to whom Common Article 3
applies, i.e., individuals, including members of al Qaeda, not
associated with a Geneva signatory and regardless of the nature of the
conflict.
General Rives. Common Article 3 defines the minimum humanitarian
norms applicable in ``armed conflicts not of an international
character.'' Under section 1, the following acts are prohibited:
(a) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating
and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly
constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.
Most of these are self-explanatory. In any statute or treaty, there
are terms that must be interpreted by practitioners and ultimately are
left to the courts to define and thus provide reasonable parameters on
conduct. As required by the Geneva Conventions, DOD directs that
members of the DOD components ``comply with the law of war during all
armed conflicts, however such conflicts are characterized, and in all
other military operations.'' To ensure compliance, DOD trains its
personnel on the law of war. The training is generally to a higher
standard of behavior than that required by Common Article 3, that
required toward prisoners of war. As a result, the standards of Common
Article 3 are not an issue.
The issue with Common Article 3 comes as a result of 18 U.S.C.
2441, which contains the war crimes provisions. Under section
2441(c)(3), behavior that violates Common Article 3 is a war crime. In
that light, providing clearer definition of the meaning of terms such
as ``outrages upon personal dignity, in particular humiliating and
degrading treatment'' would provide useful guidance to the members of
the Armed Forces and ultimately to the courts who are required to
interpret the provision in the context of a criminal trial. Clarity
could be provided by either limiting the behavior to ``serious'' or
``outrageous'' violations or a list of specific offenses that would
define the terms.
General Sandkuhler. As indicated in the answer to question 1 above,
DOD has implemented the full body of the Geneva Conventions for the
past 50 years. DOD has been in compliance with Common Article 3 because
it has based policies, such as Army Regulation 190-8 (Enemy Prisoners
of War, Retained Personnel, Civilian Internees and Other Detainees), on
the full-body of the Geneva Conventions, which are more expansive than
Common Article 3. DOD policy is to apply the Law of War in all armed
conflicts, regardless of how characterized, and in all other military
operations. By that measure, the minimum standards of Common Article 3
are covered.
5. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, the Department of Justice (DOJ) representative
said on Tuesday that the Common Article 3 prohibition of ``outrages
upon personal dignity, in particular, humiliating and degrading
treatment,'' is a phrase ``susceptible of uncertain and unpredictable
application.'' He went on to say that the Supreme Court has held that
in interpreting treaty provisions such as Common Article 3, the meaning
given by international tribunals and other state parties to the treaty
must be accorded consideration. This, he cautioned, will create
uncertainty for those who fight to defend us from terrorists. Isn't it
true of any treaty, and of all of international law, that courts may
take into consideration the views held by other state parties?
General Black. U.S. courts may consider foreign nations'
interpretations of treaty provisions or customary international law
when contemplating the judicial interpretation of the same provisions
under U.S. law if determined to be relevant. However, the specific
methods of application or legal interpretation are not binding on U.S.
courts.
Admiral McPherson. Yes, those views may be generally taken into
account, but they do not control and should be used only to the extent
they are helpful in contributing to a logical understanding of the
provisions under consideration.
General Rives. It is a basic rule of sovereignty that the United
States would not be bound by the decision of a foreign or international
tribunal that a certain act constituted a violation of Common Article
3. Interpretations provided by other state parties or courts are not
binding on U.S. practice or domestic interpretations. As in other
cases, how other state parties and courts have addressed an issue can
be helpful in framing issues and identifying concerns, but those
decisions or writings are not considered binding precedent that must be
followed by the United States. If universal agreement develops among
states that a specific conduct or act violates Common Article 3, then
the United States is bound to abstain from that act.
General Sandkuhler. Yes, those views may be generally taken into
account, but they are not controlling.
General Romig. Yes, it is a common and longstanding practice of
U.S. courts, to include the U.S. Supreme Court, to look to the manner
in which certain treaty provisions have been interpreted by other state
parties and international tribunals. It is not required that U.S.
courts engage in this practice. However, if other state party/
international tribunal interpretations of treaty provisions are looked
to, such interpretations are merely one of many factors taken into
``consideration'' by U.S. courts. To raise the specter of U.S. courts
being bound by treaty interpretations made by the European Court on
Human Rights or the International Criminal Tribunal is truly a red
herring and simply untrue.
Admiral Hutson. The courts may and should consider views held by
other state parties, certainly in matters of international importance
and character. Those views are never controlling. So long as those
views only inform and never control decisions by domestic courts, there
can never be a danger. Not even considering other views is
intellectually lazy and ill-advised.
6. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, isn't it also the case that the
interpretations given by foreigners are not binding on domestic
interpretations?
General Black. Statements by foreign leaders, academics, or members
of important associations such as the International Committee of the
Red Cross may be looked to by U.S. courts when determined to be
relevant and helpful. But this information is in no way binding on U.S.
courts or determinative of the action U.S. courts should take on an
issue.
Admiral McPherson. Yes.
General Rives. It is a basic rule of sovereignty that the United
States would not be bound by the decision of a foreign or international
tribunal that a certain act constituted a violation of Common Article
3. Interpretations provided by other state parties or courts are not
binding on U.S. practice or domestic interpretations. As in other
cases, how other state parties and courts have addressed an issue can
be helpful in framing issues and identifying concerns, but those
decisions or writings are not considered binding precedent that must be
followed by the United States. If universal agreement develops among
states that a specific conduct or act violates Common Article 3, then
the United States is bound to abstain from that act.
General Sandkuhler. Yes.
General Romig. Yes, see above.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
7. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, do you believe that the U.S. runs a danger
along the lines of that articulated by the DOJ representative?
General Black. I understand this question to refer to Senator
McCain's statement ``On the issue of Common Article 3, the DOJ
representative said yesterday, that Common Article 3 `prohibition of
outrages upon personal dignity'--in particular, 'humiliating and
degrading treatment'--is a phrase susceptible of uncertain and
unpredictable application.'' He went on to say that the Supreme Court
has held that interpreting treaty provisions such as Common Article 3,
that meaning given by the international tribunals and other state
parties to the treaty, must be accorded consideration; therefore, this
would create uncertainty.
Certainly, U.S. courts may consider the views of other tribunals
and state parties to conventions when relevant and appropriate in
arriving at a decision. However, these other views are not binding and
I know of no court decision that requires U.S. courts to consider and
apply international interpretations of law of war provisions. In any
event, there seems to me, no greater uncertainty here than in any case
where courts interpret statutory language.
Admiral McPherson. I do not believe the interpretations of
international tribunals or other state parties will create uncertainty
for those who fight to defend us. The Armed Forces will continue to
issue guidance to those in the field so they clearly understand
national law and policy which will enable them to fully support our
national security.
General Rives. It is a basic rule of sovereignty that the United
States would not be bound by the decision of a foreign or international
tribunal that a certain act constituted a violation of Common Article
3. Interpretations provided by other state parties or courts are not
binding on U.S. practice or domestic interpretations. As in other
cases, how other state parties and courts have addressed an issue can
be helpful in framing issues and identifying concerns, but those
decisions or writings are not considered binding precedent that must be
followed by the United States.
General Sandkuhler. I believe that interpretations by international
tribunals or other state parties will create uncertainty as to the
meaning of such terms, however, our commanders will continue to issue
guidance to our soldiers, sailors, airmen, and marines in the field to
help them understand our legal obligations and policies as they
continue to focus on the fight.
General Romig. No, for the reasons stated in #5 above.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
8. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, some have suggested that Congress put in
statute that the prohibitions contained in Common Article 3 are
identical to the prohibition against cruel, inhumane, and degrading
treatment contained in last year's DTA. In that bill, we defined cruel,
inhumane, and degrading treatment with reference to the 5th, 8th, and
14th amendments to the U.S. Constitution. Is this a good idea and what
are the implications of our redefining Common Article 3 in this way?
General Black. Common Article 3 contains provisions in excess of
fundamental treatment provisions--prohibition against cruel, inhuman,
and degrading treatment--of the DTA of 2005. Because international law
evolves, it is impossible to fix for all time any given understanding
of the provisions of Common Article 3. Nonetheless, it would be a good
idea for Congress to clarify its understanding that the cruel, inhuman,
and degrading treatment standard in the DTA was essentially the same as
those provisions of Common Article 3 related to ``cruel treatment'' and
``outrages upon personal dignity, in particular, humiliating and
degrading treatment.'' Soldiers will continue to be trained to apply
the principles of humane treatment that will exceed the baseline
standards these two definitions contemplate.
Admiral McPherson. Each of those amendments has produced extensive
jurisprudence associated with domestic criminal law and civil rights
issues. Those issues and the attendant case law might be misapplied in
the context of the global war on terror.
General Rives. Compliance with Common Article 3 does not require
providing unlawful combatants with the full panoply of rights enjoyed
by American citizens in U.S. courts and guaranteed by the U.S.
Constitution. Because jurisprudence on the U.S. Constitution's 5th,
8th, and 14th amendments is broad and comprehensive, incorporating
these amendments into Common Article 3 risks guaranteeing rights and
protections far above the standards required by international law. Care
should be taken to ensure that any definition not necessarily expand
the protections beyond those required by Common Article 3 and the DTA
of 2005.
General Sandkuhler. I would respectfully state that tying the 5th,
8th, and 14th amendments to Common Article 3 should cause some concern,
given that these amendments have each produced extensive and varied
jurisprudence regarding domestic criminal law and civil rights. The
global war on terror, as the committee is well aware, is a completely
different paradigm from our domestic legal system.
General Romig. No, this would cause more confusion than currently
exists. It would subject the military to the relatively vague standards
of U.S. court interpretations of cruel, inhuman, or degrading treatment
or punishment per the Constitutional Amendments in contrast to the
clear guidance in the field manual on detainee treatment and
interrogation. Furthermore, the international community would perceive
this as an attempt by the U.S. to unilaterally legislate and define the
meaning of the prohibited activities of Common Article 3. Finally, it
would, by legislation, exempt out ``humiliating and degrading''
practices that might subject the perpetrators and their sanctioning
superiors to prosecution under the War Crimes Act.
Admiral Hutson. There is no valid reason to attempt to redefine
Common Article 3. The United States should deal only with domestic law
in this situation, not define ourselves out of a treaty we ratified
because it served to protect U.S. troops. However, to do so would not
be a de facto withdrawal from Common Article 3, only a grave mistake,
and a violation of the spirit of Common Article 3.
9. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, if Congress were to ratify the military
commissions as is, or authorize military commissions that fall short of
what the Supreme Court has determined is required under Geneva Common
Article 3, what would be the effect on our relationship to the Geneva
Conventions and would such a step imply a de facto withdrawal from
Common Article 3?
General Black. I do not believe the United States can ``withdraw''
from the provisions of Common Article 3 as it has become customary
international law. More importantly, the idea of treating all people
humanely is part of the moral fabric of the U.S. Army, a binding
element that is especially important on the field of battle. I have
confidence that Congress and the administration can work together, and
I am prepared to help in any way I can, to design a set of military
commission rules that will not only comply with Common Article 3 but
uphold the moral underpinnings of American society and the military.
Admiral McPherson. The Supreme Court opinion is consistent with
opinions expressed by many experts in the international community.
Failure to include the fundamental protections required under the
Geneva Conventions might signal a repudiation of commonly understood
principles of international law. This would be inconsistent with the
two pillars of our National Security Strategy, to wit: promoting
freedom, justice, and human dignity, and leading a growing community of
democracies that embrace the rule of law. Finally, it would directly
contradict the practice of the United States and its coalition partners
regarding the prosecution of war criminals before the International
Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Iraqi
Supreme Criminal Tribunal.
General Rives. The President may withdraw from an Article II
Treaty, but the terms of the treaty require the President to formally
do so. So long as the United States remains a signatory to the 1949
Geneva Conventions, and has ratified the Conventions, Common Article 3
is the law of the land. The U.S. Supreme Court held Common Article 3 to
be enforceable law in Hamdan.
American jurisprudence does not formally recognize a de facto
withdrawal from a treaty. So long as the United States is a party to
the 1949 Geneva Conventions, without any reservation as to Common
Article 3, there can be no de facto withdrawal. And, following Hamdan,
until the United States formally withdraws from the 1949 Geneva
Conventions, individuals directly affected by an act or omission of the
government have judicial standing.
General Sandkuhler. While I cannot say that it would imply a de
facto withdrawal from Common Article 3, it would certainly send a mixed
message to an international community to whom we have stressed our
adherence to the rule of law.
General Romig. The problem with such a step would be that it would
give our future adversaries the green light to interpret the Geneva
Conventions as they see fit, to the detriment of future U.S.
servicemembers who may fall into their power. Additionally it would
further diminish both our international stature and our ability to
influence in the critical arena of compliance with the law of war.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
10. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, you have raised some concerns about the
enforcement of Common Article 3 following the Hamdan decision because
the Supreme Court has ruled that it applies to the global war on
terrorism and because it can be enforced through the war crimes
statute. If the United States made it clearer what violations of Common
Article 3 were enforceable through the war crimes statute, would this
address your concerns for greater certainty about possible criminal
prosecutions? In other words, can your concerns be addressed by
clarifying U.S. law without throwing into doubt U.S. acceptance of
Common Article 3, or without reinterpreting Common Article 3 itself?
General Black. Yes, and I believe if the DOJ and the DOD engage in
a deliberative process to review what War Crimes Act amendments are
necessary, we can provide Congress some proposed legislation that will
accomplish this important task. Army Judge Advocates are now involved
in the process, led by the DOJ and with Judge Advocates of the other
Services to propose to Congress the best way to enable military
commissions to adjudicate the full-range of offenses that are at issue
in the global war on terrorism.
Admiral McPherson. Yes; and I would like to note that military
personnel are already accountable to a higher criminal standard by
operation of articles 92, 93, and 134 of the UCMJ, and thus
interpretation of the War Crimes Act is primarily a matter of interest
for our civilian employees and contractor personnel. There is one
phrase in Common Article 3 that many would like to see better defined
for purposes of War Crimes Act enforcement, and that is ``outrages upon
personal dignity, in particular humiliating and degrading treatment.''
General Rives. Yes, I believe that is a reasonable approach. Under
18 U.S.C. 2441(c)(3), conduct that violates Common Article 3 is a war
crime. In that light, providing clearer definition of the meaning of
terms such as ``outrages upon personal dignity, in particular
humiliating and degrading treatment'' would provide useful guidance to
the members of the Armed Forces and ultimately to the courts who are
required to interpret the provision in the context of a criminal trial.
Clarity could be provided by either limiting the behavior to
``serious'' or ``outrageous'' violations or a list of specific offenses
that would define the terms. That would be very helpful.
General Sandkuhler. I think it is possible to clarify U.S. law
without throwing into doubt U.S. acceptance of Common Article 3.
Drafters would obviously need to use care in order to avoid the
appearance that we are either backing away from any of our obligations,
or changing our position on Common Article 3 in the midst of a conflict
to which the Supreme Court has held it applies.
General Romig. I do not recall that I expressed any concerns about
enforceability of Common Article 3 under existing law. I do not believe
it is necessary for the U.S. to clarify the standards set out in Common
Article 3. To do so would open the door for future adversaries to do
the same to the detriment of our servicemembers captured by them. As I
stated in my answer to question #2, it is not possible to conceive of
every future interrogation technique or detainee treatment that would
violate the intent of the language of Common Article 3. I have no doubt
that imaginative interrogators and detention personnel will find ways
to inflict treatment that violates the clear intent of the Article and
which we would find objectionable if applied to our servicemembers.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
military commissions
11. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, in his testimony before the Senate Judiciary
Committee on Tuesday, Mr. Daniel Dell'Orto, the Principal Deputy
Counsel at the DOD, stated that ``courts-martial are more solicitous of
the rights of the accused than are civilian courts,'' and that, ``[f]or
every court-martial rule that is arguably less protective of the
accused than its civilian analog, there are several that are
indisputably more protective.'' Mr. Dell'Orto concludes that these
greater rights afforded to defendants in a court-martial would
compromise intelligence gathering and military operations if they are
granted to detainees. Do you agree with Mr. Dell'Orto's assessment of
the courts-martial rules?
General Black. Yes. In many respects the UCMJ and Manual for
Courts-Martial provide greater procedural and substantive due process
for the military accused than that provided to a civilian in the
Federal criminal justice system. Just to remark upon a few, Article
31(b), Article 32, Article 46, and Article 66 of the UCMJ all provide
substantially greater procedural and substantive due process than their
civilian counterparts. These greater rights, if granted to enemy
combatants, could affect intelligence operations, from the gathering of
intelligence to its use at a commission.
Admiral McPherson. Some court-martial protections are more
stringent than their civilian criminal system counterparts. For
example, the requirement to give Article 31(b) rights at the initiation
of questioning and not solely in a custodial setting is one example.
Other examples are the military requirement for speedy trial and broad
discovery rules under the Rules for Courts-Martial. However, in most
other areas the military rules are reflective of Federal rules and
provide the fundamental guarantees discussed by the Supreme Court.
General Rives. The military justice system gives servicemembers
virtually all rights and privileges that are afforded to citizens who
face prosecution in civilian courts. In many areas--such as the right
to counsel, the pretrial investigatory process, discovery, sentencing,
post-trial processing, and appeals--the military system offers benefits
to an accused that are more favorable than those available in civilian
systems.
The battlefield is not an orderly place. The military commission
process has to take into account that fact. While I believe that the
UCMJ and the Manual for Courts-Martial is a superb starting point for
updating military commissions, I recognize there will necessarily be
differences from those documents and the rules and procedures for
military commissions. The processes and procedures in the UCMJ and
Manual for Courts-Martial can be readily adapted to meet the needs of
military commissions and still meet the requirements of criminal
systems established by Common Article 3.
General Sandkuhler. Some aspects of the UCMJ and the court-martial
rules do afford more protection to an accused than rules in the
civilian criminal justice system. For example, Article 31(b) of the
code requires that a rights warning be provided to a suspect at the
initiation of questioning, without regard to whether the suspect is
``in custody.'' Other examples are the speedy trial parameters set
forth in Article 10 and rule 707, ``open file'' discovery rules, and
the extremely detailed providence inquiry military judges must conduct
with an accused before accepting any guilty plea. Some aspects of the
military justice system, if transposed ``as is'' upon the commissions
process without taking into account differences between mission
accomplishment in the war on terror and standard criminal
investigations could have an impact on battlefield missions.
General Romig. Although it is true that the court-martial process
does provide significant due process protections for servicemembers, I
believe it is misleading to say those safeguards would jeopardize
intelligence gathering or military operations. There has been a number
of courts-martial prosecuted where there was intelligence or
operational issues involved. In each case there were adequate
protections afforded to both the accused and the government to ensure
prosecution without disclosing classified information or damaging
military operations. For prosecuting military commissions, those rules
that would not make sense for use on a battlefield should be modified
or eliminated, see question 14 below.
Admiral Hutson. I agree with Mr. Dell'Orto's assessment of the
comparison of military and civilian law.
12. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, in your extensive collective experience with
courts-martial have you found that the process currently in place would
jeopardize our intelligence gathering and military operations?
General Black. Yes. There are a number of aspects of the court-
martial system that could result in an unacceptable degree of
compromise to intelligence gathering and military operations if the
court-martial system was used to prosecute detainees. Of particular
concern are the rules of discovery in the court-martial system. The
rules of discovery in the courts-martial are extremely broad. Soldiers
accused of a crime are required to have the same access to witnesses
and evidence as the prosecutor. Prosecuting detainees in such an open
discovery system could force the government to reveal classified
evidence regarding how it came by intelligence and what was known or
not known about terrorist operations.
Admiral McPherson. The broad discovery rules used in military
courts-martial practice are unlikely to jeopardize intelligence
gathering and military operations. The substantive and procedural
rights addressed in the MCM relate to the use of evidence against an
accused at trial. While application of those rights to detainees might
limit the ability to present legally admissible evidence against such
detainees at trial before a military commission or court-martial, those
evidentiary issues should not present a hindrance to intelligence
gathering and military operations, especially given the procedural
mechanisms available within the MCM for protecting sensitive
information.
General Rives. The process used to try individuals before military
commissions must be compatible with intelligence gathering and military
operations. Because each activity necessarily involves different
processes, procedures, and objectives, policy makers must determine the
primary focus, recognizing that focus can change depending on timing
and individual circumstances. I believe that a process can be designed
to accommodate those interests. The UCMJ and the MCM are certainly fine
as starting points for updating military commission processes and
procedures. I believe the administration is drafting legislation for
your consideration that addresses and accommodates each of those
concerns.
General Sandkuhler. Adopting the UCMJ and rules for courts-martial
``whole cloth'' could impact intelligence gathering and military
operations. But we can adapt to meet the required fundamental
guarantees and minimize the impact.
General Romig. See number 11 above.
Admiral Hutson. The process currently in place would not jeopardize
our intelligence gathering or military operations. Protecting the
rights of individuals would only serve to enhance them by making the
U.S. stronger. It would preserve the ideals and aspirations that form
the historical basis for our strength. It is who we are.
13. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, do you agree with Mr. Dell'Orto's assessment
of the consequences of applying those rules to detainees?
General Black. Yes. I believe trying detainees by courts-martial
would result in granting detainees more rights at trial then are
provided to U.S. citizens facing trial in Federal court. Additionally,
trying detainees under a courts-martial system would create a high
potential for the compromise of intelligence information.
Admiral McPherson. Yes, we must be very careful when adopting rules
for military commissions in areas such as discovery, access to
evidence, and self-incrimination. Overall, a careful balancing of
individual rights and national security interests is required.
General Rives. The battlefield is not an orderly place. The
military commission process has to take into account that fact. While I
believe that the UCMJ and the MCM is a superb starting point for
updating military commissions, I recognize there will necessarily be
differences from those documents and the rules and procedures for
military commissions. The processes and procedures in the UCMJ and MCM
can be readily adapted to meet the needs of military commissions and
still meet the requirements of criminal systems established by Common
Article 3.
General Sandkuhler. I would say that we must be very careful in
drafting rules for military commissions, particularly in areas such as
discovery, access to evidence, and self-incrimination. The application
of these rules without modification could have unintended consequences
on the battlefield as well as in the actual commissions process.
General Romig. No, see number 11 above.
Admiral Hutson. No, I do not agree with his shortsighted
assessment.
14. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, in a letter dated July 10, 2006, and addressed
to the Chairman of the Senate Judiciary Committee, a group of retired
Judge Advocates state that we should ``bring accused terrorists to
justice in military trials based on the UCMJ and MCM.'' The letter goes
on to say that, in developing legislation to address the Hamdan ruling,
``it should start from the premise that the United States already has
the best system of military justice in the world'' but that narrowly
targeted amendments to the UCMJ to accommodate ``specific difficulties
in gathering evidence during the time of war'' would be acceptable. Do
you believe the UCMJ and the MCM are adequate to try detainees?
General Black. I would concur with the statement that the United
States has the best military justice system in the world, but that does
not mean it is the proper forum to try unlawful enemy combatants
suspected of committing war crimes. Trying unlawful enemy combatants
presents two major challenges that trying a U.S. servicemember does
not. First, much of the evidence against suspected enemy combatants
comes from intelligence sources that might be compromised if the enemy
combatant were tried under the UCMJ. Second, collection of evidence
against an enemy combatant is often done under difficult circumstances
making it untenable to follow the usual rules of collection and
authentication. Thus, probative evidence might be excluded because of
its method of collection or challenges to its authentication.
Admiral McPherson. Yes, if modified in the areas that present the
most concern for trying terrorists as discussed above.
General Rives. I believe that the UCMJ and the MCM is a superb
starting point for updating military commissions. The processes and
procedures in the UCMJ and MCM have served us well and can be readily
adapted to meet the needs of military commissions. The administration
is preparing legislation for your consideration using this approach.
As I indicated in my testimony, I believe you could enact an
Article 135(a) that could detail the basic substantive requirements for
military commissions and then permit an executive order to have the
details, just as we have the MCM to provide detailed guidance for the
trial of courts-martial. Alternatively, Congress could create a
separate Code of Military Commissions as a new chapter in title 10,
modeled to an appropriate degree after the UCMJ and similarly leave the
details to an executive order. Either method must address the concerns
articulated in Hamdan v. Rumsfeld.
General Sandkuhler. Not without modifications regarding some of the
aspects and rules previously addressed.
General Romig. As I testified, I believe the UCMJ and MCM should be
the starting point for the military commissions. Those rules or
procedures that do not make sense for the unique situations of the
combat environment should either be modified or removed for military
commissions. An example of this would be the requirement to read a
captured combatant a rights warning before questioning. This would be
counterproductive to gathering intelligence and doesn't make sense on
the battlefield. But the fact that there are rules or procedures that
should be modified or not used does not mean that you could not use any
of the UCMJ/MCM rules or procedures. They should be the starting point
and then a point-by-point analysis could determine which ones should be
modified/eliminated.
Admiral Hutson. With minor modifications, I believe the UCMJ and
MCM are adequate to successfully (i.e., justly) prosecute detainees.
15. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, what do you make of the suggestion by some
that our starting point should be the military commissions set up under
Military Order One, and that, in fact, Congress should consider merely
ratifying those procedures?
General Black. I suggest that the starting point is not critical.
So long as the structure of the military commissions is a blend of
Military Order 1, the UCMJ, the MCM, and the law of war, they will
fulfill their purpose of ensuring full and fair justice and order on
the battlefield.
Admiral McPherson. I do not believe it will matter whether the
military commission procedures adopted will modify Military Order 1 to
bring those procedures into conformity with Common Article 3 or, in the
alternative, modify UCMJ procedures to accommodate national security
concerns while still conforming to Common Article 3. What is important
is that we end up with a system that is consistent with our obligations
under Common Article 3.
General Rives. I believe that the Nation would be better served by
a fresh start to the military commission process. Existing criminal
justice systems, including the process established by Military
Commission Order 1, should be reviewed to develop a system that would
best serve the interests of justice and those of the United States. The
UCMJ and the MCM is a superb starting point in doing so. The processes
and procedures in the UCMJ and MCM have served us well and can be
readily adapted to meet the needs of military commissions. I believe
the administration is preparing legislation for your consideration
using this approach.
General Sandkuhler. It is a balancing process, regardless of
whether you modify Military Order 1 or UCMJ procedures. What is
important is that we end up with a system that is consistent with our
obligations under Common Article 3 and our interests in our national
security.
General Romig. I strongly disagree with that proposal. The
procedures set up under the President's military order were basically
modeled on the practice of military justice 60 years ago. Today's
military commissions should reflect the development and evolution of
the practice of military justice over the last 60 years.
Admiral Hutson. Merely ratifying the procedures of Military Order 1
would ensure convictions but equally ensure international and domestic
disgust and eventual overturn by the Supreme Court.
16. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, if the current rules are not adequate, what
changes need to be made to those rules?
General Black. The Supreme Court in the Hamdan decision cited to a
number of areas that must be changed before military commissions will
pass Supreme Court review. Among those changes are: the creating of
additional rights and procedures to ensure military commissions are in
compliance with Common Article 3 of the 1949 Geneva Conventions, and a
statement confirming the date of commencement of armed conflict with al
Qaeda.
Admiral McPherson. A review of the necessary changes is underway.
Preliminarily, the current rules need to address more adequately issues
such as discovery, access to evidence, presence of the accused, and
self-incrimination. This will require a careful balancing of individual
rights and national security interests in order to ensure adequate
protection of both.
General Rives. I believe that the UCMJ and the MCM is a superb
starting point for updating military commissions. The processes and
procedures in the UCMJ and MCM have served us well and can be readily
adapted to meet the needs of military commissions. I believe the
administration is preparing legislation for your consideration using
this approach.
As I indicated in my testimony, I believe you could enact an
Article 135(a) that could detail the basic substantive requirements for
military commissions and then permit an executive order to have the
details, just as we have the MCM with the details. Alternatively,
Congress could create a separate Code of Military Commissions as a new
chapter in title 10, modeled to an appropriate degree after the UCMJ
and similarly leave the details to an executive order. Either method
must address the concerns articulated in Hamdan v. Rumsfeld.
General Sandkuhler. A detailed review of the necessary changes is
underway. Preliminarily, the current rules need to more adequately
address issues with respect to discovery, access to evidence, presence
of the accused, and self-incrimination, to name a few. I believe that a
thorough, deliberate review without a ``rush to the objective'' is
extremely important.
General Romig. It would be much easier to modify the UCMJ/MCM
procedures and rules than to try to correct the problems with the
current process. The fundamental issues of fairness and independence
and the appearance of fairness and independence cannot be addressed
without major changes to the procedures and processes. The presiding
officer should be redesignated as a military judge and that person
should have the authority and independence of a military judge under
the court-martial process. The prosecutors should not be selected by
the appointing authority or be answerable to the appointing authority.
The appointing authority should be a senior military commander and not
someone selected by a political appointee. There should be a judicial
review process that provides meaningful review that would allow action
to be taken when there has been an injustice done. The accused should
be allowed to hear all of the evidence that is presented against him.
These are just a few of the concerns that I have about the process as
it exists now.
Admiral Hutson. The only necessary changes would relate to the
Military Rules of Evidence in order to accommodate the reality of
evidence gathering by soldiers overseas.
17. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, how, in your view, can Congress best fashion
legislation that will stand up to Supreme Court scrutiny?
General Black. In the Hamdan case, and other cases involving
military commissions, the Supreme Court has demonstrated a preference
for congressional involvement in the establishment of such tribunals.
The Supreme Court has repeatedly demonstrated its greatest deference to
decisions relating to the conduct of war and national security when
Congress and the President act together. To that end, Congress and the
President, with the assistance of subject matter experts, should draft
legislation that establishes a unified vision of the scope and mission
of military commissions.
Admiral McPherson. A judicial process needs to be created that
provides for the protections afforded under Common Article 3. This
process should utilize the UCMJ as a baseline, with modifications to
rules such as those dealing with the presence of the accused, handling
of classified information, admissibility of hearsay, and the like.
Creation of this process requires a careful balancing of rights under
Common Article 3 and national security interests.
General Rives. I believe that the UCMJ and the MCM is a superb
starting point for updating military commissions. The processes and
procedures in the UCMJ and MCM have served us well and can be readily
adapted to meet the needs of military commissions. I believe the
administration is preparing legislation for your consideration using
this approach.
General Sandkuhler. Obviously, the system that we create must
afford the protections provided for under Common Article 3. This
process should utilize the UCMJ as a baseline, with modifications to
rules such as those involving the right against compulsory self-
incrimination (Article 31b), the handling of classified information,
and admissibility of hearsay, to name a few. As the Court stated,
Common Article 3's concept of ``indispensable judicial guarantees''
under subsection (1)(d) ``must be understood to incorporate at least
the barest of those trial protections recognized by customary
international law.'' Our system must incorporate these ``barest of
protections'' while remaining true to our national security interests.
General Romig. Congress should start with the current UCMJ and MCM
processes and procedures and then scrutinize those provisions that are
problematic for cases arising in the chaos of combat on the
battlefield. It should be a review conducted by knowledgeable
congressional staffers, uniformed JAG Corps experts from all of the
Services, and other outside legal experts. This would ensure that the
best of the current practice of military justice is adapted to the
unique environment that military commissions would be called upon to
address.
Admiral Hutson. Supreme Court scrutiny can be best ensured by
making only minor changes to the UCMJ and MCM.
18. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, how should hearsay evidence be treated in any
legislation authorizing military commissions for detainee trials?
General Black. Although it may not be necessary to provide for the
admissibility of hearsay evidence when fashioning legislation on this
matter, it is critical that it be admissible in military commissions.
Hearsay evidence has been found necessary and reliable in the
international war crimes tribunal at Nuremburg, the ICTY, and is
admissible under the rules for the International Criminal Court. As
mentioned in an earlier answer, the nature of war makes the usual
methods of securing and presenting evidence impractical.
Admiral McPherson. The primary concerns regarding hearsay evidence
are authenticity and corroboration. Consistent with international
tribunals, hearsay evidence should be admitted as long as the court is
satisfied it is reliable given the context and character of the
evidence for which it is admitted.
General Rives. Under the Military Rules of Evidence (MRE), hearsay
is not admissible except as provided in the MREs or by statute. The
MREs further define statements that are not hearsay and provide for
exceptions conditioned on the availability of the declarant. Further,
there is a residual hearsay rule that permits the introduction of other
statements, having equivalent circumstantial guarantees of
trustworthiness, if the court determines that the statement is material
evidence; has more probative value than other available evidence; and
serves the interests of justice. The residual hearsay rule is
functionally very much like that used in international tribunals and
requires a military judge to find the evidence is probative and
reliable.
These existing procedures provide a significant starting point for
addressing the hearsay issues arising in military commissions. I
believe the administration is preparing legislation for your
consideration which will address the use of hearsay statements.
General Sandkuhler. It is not practicable to have the same
foundational premise (i.e., hearsay is not admissible, pursuant to
Mil.R.Evid. 802) for any prospective process as in courts-martial. It
is virtually certain that cases will involve hearsay evidence from
deployed servicemembers and foreign nationals, to name just two
examples. Any legislation should approach a hearsay rule from the
perspective that hearsay statements are admissible unless the
circumstances in which they were made render them unreliable or lacking
in probative value. A similar standard is used in international
tribunals. Allowing only reliable/probative statements would certainly
provide one of those ``barest of trial protections'' envisioned by
Common Article 3.
General Romig. This issue of how to handle hearsay evidence should
be addressed in the process described in number 17 above.
Admiral Hutson. Regarding hearsay, I recommend that the standard be
that it is probative and reliable. Reliability could depend on a
requirement that there be some other bit of corroborating evidence, as
we do with confessions.
19. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, should we adhere to the rules of the MCM or
should we apply a broader rule that, for example, would permit evidence
if it is probative and reliable?
General Black. The rules for the commissions should be broader than
those for courts-martial. By establishing a single rule of evidence
that requires documents or testimony to be probative and reliable prior
to being admitted, Congress can ensure that only reliable evidence is
introduced at military commissions and none of that reliable evidence
is excluded based on a technical violation of a rule of evidence.
Admiral McPherson. Consistent with international tribunals, the
overriding concern should be admissibility of evidence based on its
probative value and its reliability given the context and character of
the evidence for which it is admitted.
General Rives. I believe that the UCMJ and the MCM is a superb
starting point for updating military commissions with regard to
evidentiary issues. I believe you could enact legislation that could
detail the basic evidentiary requirements and then permit an executive
order to have the details, just as we have the MCM with the details. I
believe the administration is preparing legislation for your
consideration using this approach.
Because of the differences between military commissions and courts-
martial I believe that you could apply a broader rule that would admit
evidence provided there are guarantees of its trustworthiness, the
evidence has probative value, and the interests of justice are best
served by its admission.
General Sandkuhler. As addressed in question number 18 above,
admissibility based upon probative value and reliability would be
practicable and ensure fundamental fairness.
General Romig. See numbers 17 and 18 above.
Admiral Hutson. Again, I would rely on a standard of probative and
apparently reliable. I would also exclude coerced evidence in all
cases.
20. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, does the UCMJ--and specifically Military Rule
of Evidence 505--adequately protect classified evidence? If not, what
do we need to do to enhance the protection of classified information in
detainee trials?
General Black. Under normal circumstances MRE 505 does adequately
protect classified information. However, the prosecution of unlawful
enemy combatants is not a normal circumstance. MRE 505 permits the
closing of a court-martial for the presentation of classified evidence,
but it does not permit the exclusion of the accused soldier during the
presentation of that evidence, nor does it exclude the accused soldier
from access to relevant classified evidence. Clearly it is not in the
United States' national security interest to permit unlawful enemy
combatants to have access to information that may compromise the
security of our Nation. As a result, we must carefully craft rules that
balance the necessity for a full and fair trial with the United States'
national security interests. We may determine that there are rare
occasions when a detainee may be excluded from the military commission.
That determination must be made by a competent authority as part of a
rigorous and regimented process that ensures the accused receives a
full and fair trial.
Admiral McPherson. MRE 505 deals with access to classified
information and how that classified information can be placed in a
public forum. MRE 505 provides the Federal Government with a privilege
against disclosure of classified information. The privilege may only be
exercised ``by the head of the executive or military department or
government agency concerned,'' and then only upon ``a finding that the
information is properly classified and that disclosure would be
detrimental to the national security.'' MRE 505 permits the government
in courts-martial to delete specified items of classified information
from documents or substitute a portion or provide a summary of the
information from such documents to protect classified information. The
military judge, upon motion by the Government, may make this redaction
or substitution determination ex parte in camera.
General Rives. I believe the procedures of MRE 505 adequately
protect classified evidence.
MRE 505 is based on the Classified Information Procedures Act
(CIPA) (title 18, U.S.C. App. III). CIPA is designed to prevent
unnecessary or inadvertent disclosures of classified information and
advise the government of the national security implications of going
forward. MRE 505 achieves a reasonable accommodation of the United
States' interest in protecting information, and the accused's need to
be able to mount a defense. The rule permits in camera, ex parte
consideration of the Government's concerns by a judge, the substitution
of unclassified summaries or other alternative forms of evidence, and
ensures fairness to the accused. Under MRE 505, both the prosecution
and the accused rely on and know about the evidence going to the court.
The accused knows all that is to be considered by the trier-of-fact,
and has opportunity to respond to all, and to assist the defense
counsel in responding to all.
General Sandkuhler. First, I interpret Common Article 3's
requirement of ``at least the barest of trial protections recognized by
customary international law'' to mean that accused individuals should
have access to the evidence presented against them. Common Article 3
does not require that such individuals have the same discovery rights
as guaranteed by the Constitution or the UCMJ. (The UCMJ affords an
accused servicemember far greater discovery rights than American
civilians have in our Article III courts.) MRE 505 addresses an
accused's access to classified information and how that classified
information may be produced at courts-martial. At a minimum, an ex
parte review should be conducted by the presiding officer (I favor a
judge) who could then order production of an unclassified summary of
the evidence. (Although addressing in camera review, MRE 505(i)
provides a good starting point for addressing this matter.)
Unclassified summaries used at trial would facilitate the protection of
classified evidence and the accused's ``barest of trial protections''
under Common Article 3.
General Romig. MRE 505 has worked well over the years in numerous
courts-martial cases involving classified material. I believe that this
procedure would be adequate to protect the interests of the government
and yet ensure the accused received a fair trial. Having said that, I
do believe it should be reviewed in the process described in number 17
above to ensure there are not unanticipated problems in the MRE 505
process.
Admiral Hutson. Yes, the UCMJ and MCM 505 adequately protect
classified information.
21. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, in testimony before the Senate Judiciary
Committee on Tuesday, much was made of the potential problems posed by
Article 31(b) of the UCMJ--which essentially sets up the military's
Miranda rights--in the context of detainee trials. Is it the case that
this article ties our hands with respect to intelligence gathering?
General Black. There is a real possibility that Article 31(b) could
adversely affect the gathering of intelligence if soldiers were
required to advise detainees that they are permitted to remain silent.
Article 31(b) was created by Congress to protect the fifth amendment
right of U.S. servicemembers against self-incrimination during criminal
investigations. The questioning of suspected unlawful enemy combatants
by U.S. servicemembers is not done as part of a criminal investigation;
it is done for the purpose of gathering intelligence. The application
of Article 31(b) to suspected enemy combatants would be harmful to
intelligence operations and would not fulfill Congress's intent when it
created Article 31(b).
Admiral McPherson. UCMJ Article 31(b) does not apply to
interrogations for intelligence gathering. Article 31(b) states that
when an accused or person suspected of an offense is being questioned,
that person must be informed of their rights to remain silent and not
make incriminating statements. Failure to so inform a suspect results
in inadmissibility at trial of the statements made during the
interrogation, and any derivative evidence. Such rights advisements in
the context of investigating criminal offenses will not ``tie our
hands'' with regards to intelligence gathering.
General Rives. Article 31(b), UCMJ, is applicable whenever an
individual subject to the UCMJ interrogates, or requests any statement
from an accused or a person suspected of an offense. If a person
subject to the Code interrogates or questions a person suspected of an
offense, the questioner must first inform the person of the nature of
the accusation, advise him that he does not have to make any statement
regarding the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a trial by
court-martial. The primary difference between Article 31 and the
civilian requirement to warn is that the requirement to warn is
triggered much earlier than whether the individual is in custody.
Article 31(a) provides that a questioner subject to the code may not
compel any person to incriminate himself or to answer any question the
answer to which may tend to incriminate him.
The remedy for failure to comply with Article 31 is the exclusion
of the unwarned or compelled statement in a court-martial. If Article
31 were made applicable to military commissions, it would obviously
preclude the admissibility of an unwarned or compelled statement. I do
not believe these rules impact the intelligence gathering process, but
they would impact any subsequent use in a criminal proceeding.
While I believe that the UCMJ and the MCM is a superb starting
point for updating military commissions, I recognize there will
necessarily be differences between those documents and the rules and
procedures for military commissions. The processes and procedures in
the UCMJ and MCM can be readily adapted to meet the needs of military
commissions and still meet the requirements of criminal justice systems
established by Common Article 3. The requirement to warn an individual
before questioning is one area where deviation from the established
UCMJ framework may well be warranted. I believe the administration is
preparing legislation for your consideration using this approach.
General Sandkuhler. Article 31(b) requires that someone suspected
of an offense must be advised of his right to remain silent when
questioned, regardless of whether he is actually ``in custody.''
Article 31(b) does not address interviews or interrogations conducted
to gather intelligence. Therefore, Article 31(b)'s requirement does not
tie our hands vis-a-vis intelligence gathering. Under a strict
application of the UCMJ, a tougher issue could arise if an individual
from whom U.S. personnel sought intelligence was suspected of an
offense as well. Clearly a strict application of the UCMJ would go
above and beyond our Common Article 3 obligations.
General Romig. This argument is a ``red herring'' in that rights
warnings at the point of capture on a battlefield are not practical and
should not be part of the procedures for military commissions. The
review process I mentioned in number 17 above should look at whether
there should be rights warnings at another point in the process such as
a determination that a captured detainee lacks legal status as a lawful
combatant or later in the process such as when charges are preferred.
It may be that rights warnings do not make sense for unlawful
combatants until judicial proceedings are initiated or perhaps they
should not apply in any context. This is not a ``show stopper'' issue
that the administration representatives seem to indicate that it is.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
22. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, if the military's Miranda rule is truly
problematic, how should we fix it?
General Black. Article 31(b) could be problematic. The simplest way
to fix the situation is to ensure that Article 31(b) is not applicable
to evidence used at military commissions.
Admiral McPherson. UCMJ Article 31(b) is broader than Miranda in
that it requires rights advisements at the point a person is suspected
of a criminal offense, not at the point of custodial interrogation.
When an individual is detained on the battlefield, that person is not
necessarily an accused or a person suspected of an offense within the
meaning of Article 31(b) and they can be interrogated, often for
intelligence purposes.
To the extent that the issue is whether evidence from battlefield
interrogations could be used at trial before a military commission, one
change could be that rights under Article 31(b) not attach until after
the individual is reasonably suspected of having committed an offense,
and is subject to custodial interrogation. Another alternative is
relaxing the ``exclusionary rule'' for unwarned statements. For
instance the two most recent convening International Criminal Courts,
ICTY and International Criminal Tribunal for Rwanda (ICTR), do not have
an exclusionary rule and the accused has the burden of proving that the
``manner of production casts substantial doubt on the evidence's
reliability or that its admission would seriously damage the integrity
of the proceedings.''\1\
---------------------------------------------------------------------------
\1\ Both tribunals adopted a ``best evidence'' type of probative
value standard in Article 89 of their respective rules of procedure.
The standards for excluding evidence are at Article 95 of each
tribunals rules.
International Criminal Tribunal Yugoslavia Rules of Procedure:
http://www.un.org/ictv/legaldoc-e/index.htm
International Criminal Court Rwanda Rules of Procedure: http://
69.94.11.53/default.htm
---------------------------------------------------------------------------
General Rives. The battlefield is not an orderly place. The
military commission process has to take into account that fact. While I
believe that the UCMJ and the MCM is a superb starting point for
updating military commissions, I recognize there will necessarily be
differences between those documents and the rules and procedures for
military commissions. The processes and procedures in the UCMJ and MCM
can be readily adapted to meet the needs of military commissions and
still meet the requirements of criminal justice systems established by
Common Article 3. The requirement to warn an individual before
questioning is one area where deviation from the established UCMJ
framework may well be warranted. I believe the administration is
preparing legislation for your consideration using this approach.
General Sandkuhler. I do not believe that Article 31(b) is truly
problematic, because it does not apply to intelligence gathering. To
address the ultimate issue, I do not believe that we need a 31(b)
rights advisement (or Miranda warning) equivalent in a process designed
for prosecuting unlawful enemy combatants.
General Romig. See number 21 above.
Admiral Hutson. I would rely on the administration and DOD to
formulate the rules to the extent they demonstrate an understanding of
justice and the role of the United States in terms of human rights and
the rule of law. To the extent they fail in that regard, Congress could
assume its constitutional role.
23. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, some have suggested that, instead of setting
forth a set of military commission rules that would comply with the
Hamdan decision, we should give broad discretion to the administration
and specifically to the DOD to permit them to formulate the new trial
rules post-Hamdan. What is your view of this proposed course of action?
General Black. I believe a combination of specific rules and a
grant of authority to the DOD is the best method of approaching this
problem. The specific rules should reflect our Nation's commitment to
the rule of law and establish guiding principles that ensure a fair
trial. The DOD should be granted authority to establish the majority of
the rules of procedure that will implement those principles embodied in
the statute. This structure would be similar to the current structure
of the U.S. military justice system where Congress passed the UCMJ and
the President was granted the authority to create the MCM which
implements the UCMJ.
Admiral McPherson. The process of developing new trial rules for
military commissions should be a deliberative process that maximizes
the assets of the each respective Service's JAGs, the DOD, the DOJ, the
administration, and Congress to ultimately produce legislation for
military commission rules that are in compliance with Hamdan.
General Rives. I believe that legislation is appropriate, because
as the Supreme Court noted again in Hamdan, the President's powers in
wartime are at their greatest when specifically authorized by Congress.
I believe that the UCMJ and the MCM is a superb starting point for
updating military commissions. The processes and procedures in the UCMJ
and MCM have served us well and can be readily adapted to meet the
needs of military commissions. The legislation should provide authority
for the executive to draft regulations, similar to the MCM, that would
specify the implementing procedures. I believe the administration is
preparing legislation for your consideration using this approach.
General Sandkuhler. My view is that the administration, DOD, and
DOJ are capable of devising a new set of rules and procedures for
military commissions based in large part upon the UCMJ, in full
compliance with the Hamdan decision, and amenable to Congress and the
American people. It would be helpful for Congress to give us broad
authorization, as in the UCMJ, and allow DOD to establish the
procedures as we do with the MCM.
General Romig. If this approach is taken, I am fairly confident
that the Supreme Court will be hearing another case on military
commissions in the future.
Admiral Hutson. Admiral Hutson did not respond in time for
printing. When received, answer will be retained in committee files.
24. Senator McCain. Major General Black, Rear Admiral McPherson,
Major General Rives, Brigadier General Sandkuhler, Major General Romig,
and Rear Admiral Hutson, at the House Armed Services Committee hearing
on Hamdan, Mr. Bradbury of the DOJ's Office of Legal Counsel said the
administration wishes to maintain flexibility in introducing evidence
coerced from detainees. Specifically, he said, ``We do not use as
evidence in military commissions evidence that is determined to have
been obtained through torture. But when you talk about coercion and
statements obtained through coercive questioning, there's obviously a
spectrum, a gradation of what some might consider pressuring or
coercion short of torture, and I don't think you can make an absolute
rule.'' Is Mr. Bradbury correct in his analysis of coercion and the
need to introduce coerced evidence in detainee trials?
General Black. I believe Mr. Bradbury is correct that the term
coercion is imprecise and susceptible to many interpretations. What
constitutes impermissible coercion will certainly be the subject of
significant motion practice/litigation before the military commissions.
If military commissions apply the probative and reliable standard to
statements that are offered into evidence, then statements that are the
result of impermissible coercion will be excluded as unreliable.
Admiral McPherson. Evidence obtained from a detainee through
torture is inherently unreliable and should be inadmissible. Evidence
obtained through coercion may be admissible so long as the court is
satisfied of its reliability given the context and character of the
evidence for which it is admitted.
General Rives. Generally, the confession or admission of an accused
that has been determined by a military judge to be involuntary is not
admissible in a court-martial over the accused's objection. Generally,
a statement is involuntary if it is obtained in violation of the self-
incrimination privilege or due process clause of the fifth amendment to
the Constitution of the United States, Article 31, or through the use
of coercion, unlawful influence, or unlawful inducement. Each situation
is obviously fact determinative and the military judge makes a
determination whether the statement is voluntary considering the
totality of the circumstances.
I certainly trust the judgment of experienced military judges and I
do not believe evidence that is found to be coerced and thus
involuntary should be normally considered by a military commission.
General Sandkuhler. I would certainly agree with Mr. Bradbury that
the ``coercion spectrum''--from pressure to speak, to something just
short of torture--is difficult to quantify. I also assume that it is
likely that a significant number of detainees would allege that their
statements were a product of coercion (if not torture), because coerced
statements are involuntary and inadmissible in our system of
jurisprudence. An absolute exclusionary rule would therefore create
practicability problems. In balancing this very real concern with the
need for fundamental fairness, I believe a rule could be fashioned such
that, when ``coercion'' (whatever that may be) is alleged by an
accused, such statement may still be admissible if a presiding official
judge found by a preponderance of the evidence that the statement was
reliable given the totality of the circumstances in which it was made.
General Romig. There should be no coerced testimony allowed in any
trial sanctioned or approved by the United States. You can and should
make an absolute rule on this and to do otherwise is to start down a
very slippery slope. I find it disturbing that representatives of the
United States Government would argue otherwise.
Admiral Hutson. No, Mr. Bradbury fails to understand or appreciate
the fundamentals of justice. Coerced testimony is always unreliable
simply because it is coerced. Moreover, it is unbecoming the United
States to use it. There is no point in ``winning'' the war if we lose
our heart and soul in the process.
______
Questions Submitted by Senator Lindsey O. Graham
jag participation in detainee interrogation working group
25. Senator Graham. Brigadier General Sandkuhler and Major General
Romig, did you receive the March 2003 draft report of the Working Group
on Detainee Interrogations in the Global War on Terrorism and at the
time, what did you think happened to the March 2003 draft report?
General Sandkuhler. I participated in the Working Group on Detainee
Interrogations (WG). I attended several principal-level meetings, held
with large groups, between 23 January and 3 April 2003, when our
involvement ended. In my absence, my deputy attended principal-level
meetings. I also assigned a lieutenant colonel as my primary action
officer to this WG. After the initial WG meeting on 23 January, the WG
met for several weeks at the action officer level, preparing several
drafts of the WG report.
The last draft WG report we received was dated 6 March 2003. We
took exception to portions of this draft, and my deputy, on my behalf,
submitted comments on 10 March 2003. We were not provided a final draft
WG report, nor was there final coordination on the report. We asked for
the final WG report but did not receive it until 22 June 2004, when it
was declassified and released to the public by DOD. That final WG
report was dated 4 April 2003.
General Romig. We did receive the draft report and we were told
that the Secretary of Defense was issuing separate guidance that
incorporated our concerns. We were led to believe that there was not a
final report--that it had been put on hold because of the actions of
the Secretary of Defense. I did not learn that there was a final report
until over 14 months later when I believe it was revealed at another
hearing.
26. Senator Graham. Brigadier General Sandkuhler and Major General
Romig, did you receive a copy of the final April 2003 report of the
Working Group on Detainee Interrogations in the Global War on Terrorism
that was briefed to the Southern Command (SOUTHCOM) and Guantanamo
commanders?
General Sandkuhler. I received a copy of the final April 2003
report on 22 June 2004, when it was declassified and released to the
public by DOD. The last draft I saw was dated 6 March 2003, to which I
had provided comments on 10 March 2003. There was no final coordination
of the report, and although I asked for the final report, I did not
receive it until 22 June 2004.
General Romig. No, we did not receive copies of it and we did not
know it had been briefed to the SOUTHCOM and Guantanamo commanders.
27. Senator Graham. Brigadier General Sandkuhler and Major General
Romig, when did you learn that the April 2003 report had been briefed
to SOUTHCOM and Guantanomo commanders?
General Sandkuhler. My final involvement in review of interrogation
techniques consisted of a meeting with DOD GC on 3 April 2003. During
that meeting, DOD GC allowed us to read, but not keep, a draft of a
memo that the Secretary of Defense was expected to sign approving
certain interrogation techniques. This memo required that Commander,
SOUTHCOM, and his staff, be briefed by the Chairman of the Working
Group on Detainee Interrogations before implementing any approved
techniques. I later learned that the Secretary of Defense had signed a
memo dated 16 April 2003, approving certain techniques for use at
Guantanamo only, and I eventually received a copy of the memo. I cannot
recall the specific date I received the memo. I do not know when
Commander, SOUTHCOM, and the commander of Guantanamo were actually
briefed as required by that 16 April 2003 Secretary of Defense memo.
General Romig. When I read these questions.
28. Senator Graham. Brigadier General Sandkuhler and Major General
Romig, were you able to provide input on the final April 2003 report
and on the contents of the briefing to SOUTHCOM and Guantanamo
commanders?
General Sandkuhler. No. With respect to the April 2003 report,
after providing comments on 10 March 2003 to the draft WG report dated
6 March 2003, we did not see another draft, and did not receive a copy
of the final WG report until 22 June 2004. We had no input at all on
the contents of any brief provided to the SOUTHCOM and Guantanamo
commanders.
General Romig. No, see numbers 25-27 above.
______
Question Submitted by Senator Bill Nelson
the uniform code of military justice and prosecuting detainees
29. Senator Bill Nelson. Major General Black, Rear Admiral
McPherson, Major General Rives, Brigadier General Sandkuhler, Major
General Romig, and Rear Admiral Hutson, a recent New York Times
article, ``Military Lawyers Prepare to Speak on Guantanamo,'' dated
July 11, 2006 (see attached), states that ``most military lawyers say
they believe that few, if any, of the Guantanamo detainees could be
convicted in regular courts-martial.'' An attorney representing a
detainee indicated that, ``she was confident that she would win an
acquittal for her client, who is suspected of being an accountant for
al Qaeda, under courts-martial rules.'' If we were to use the UCMJ to
prosecute detainees, how, and how significantly, would it have to be
changed to ensure its application would not be a ``get-out-of-jail-free
card'' for terrorists?
Military Lawyers Prepare To Speak On Guantanamo, by Neil A. Lewis, New
York Times, July 11, 2006
Washington, July 10--Four years ago, the military's most
senior uniformed lawyers found their objections brushed aside
when the Bush administration formulated plans for military
commissions at Guantanamo Bay, Cuba. This week, their concerns
will get a public hearing as Congress takes up the question of
whether to resurrect the tribunals struck down by the Supreme
Court.
``We're at a crossroads now,'' said John D. Hutson, a retired
rear admiral who was the top uniformed lawyer in the Navy until
2000 and who has been part of a cadre of retired senior
military lawyers who have filed briefs challenging the
administration's legal approach. ``We can finally get on the
right side of the law and have a system that will pass Supreme
Court and international scrutiny.''
Admiral Hutson, one of several current and former senior
military lawyers who will testify this week before one of the
three congressional committees looking into the matter, plans
to urge Congress to avoid trying to get around last month's
Supreme Court ruling.
Beginning shortly after the attacks of September 11, 2001,
the military lawyers warned that the administration's plan for
military commissions put the United States on the wrong side of
the law and of international standards. Most important, they
warned, the arrangements could endanger members of the American
military who might someday be captured by an enemy and treated
like the detainees at Guantanamo.
But the lawyers' sense of vindication at the Supreme Court's
5-to-3 decision is tempered by growing anxiety over what may
happen next. Several military lawyers, most of them retired,
have said they are troubled by the possibility that Congress
may restore the kind of system they have long argued against.
Donald J. Guter, another retired admiral who succeeded
Admiral Hutson as the Navy's top uniformed lawyer, said it
would be a mistake for Congress to try to undo the Supreme
Court ruling. Admiral Guter was one of several senior military
judge advocates general, known as JAGs, who after objecting to
the planned military commissions found their advice pointedly
unheeded.
``This was the concern all along of the JAGs,'' Admiral Guter
said. ``It's a matter of defending what we always thought was
the rule of law and proper behavior for civilized nations.''
One of the more intriguing hearings will be held Thursday as
the current top military lawyers in the Navy, Army, Air Force,
and Marines testify before the Senate Armed Services Committee.
The main issue at stake will be whether they express the same
concerns of those out of uniform who have been critical of the
administration's approach.
Longstanding custom allows serving officers to give their own
views at congressional hearings if specifically asked, and some
in the Senate expect the current uniformed lawyers to generally
urge that Congress not stray far from the UCMJ, the system that
details court-martial proceedings.
Senator Bill Frist, the Republican leader, told reporters on
Monday that he did not expect the Senate to take up any
legislation on the issue until at least after the August recess
of Congress. The opportunity to rewrite the laws lies in the
structure of the Supreme Court's ruling, which emphasized that
Congress had not explicitly approved deviations from ordinary
court-martial proceedings or the Geneva Conventions.
The court majority said the military commissions as currently
constituted were illegal because they did not have the same
protections for the accused as do the military's own justice
system and court-martial proceedings. In addition, the court
ruled that the commissions violated a part of the Geneva
Conventions that provides for what it said was a minimum
standard of due process in a civilized society.
In response, some legislators have said they will consider
rewriting the law to make that part of the Geneva Conventions,
known as Common Article 3, no longer applicable. ``We should be
embracing Common Article 3 and shouting it from the rooftops,''
Admiral Hutson said. ``They can't try to write us out of this,
because that means every two-bit dictator could do the same.''
He said it was ``unbecoming for America to have people say,
`We're going to try to work our way around this because we find
it to be inconvenient.' ''
``If you don't apply it when it's inconvenient,'' he said,
``it's not a rule of law.'' Brig. Gen. David M. Brahms, a
retired officer who was the chief uniformed lawyer for the
Marine Corps, said he expected experienced military lawyers to
try to persuade Congress that the law should not be changed to
allow the military commissions to go forward with the
procedures that the court found unlawful.
``Our central theme in all this has always been our great
concern about reciprocity,'' General Brahms said in an
interview. ``We don't want someone saying they have our folks
as captives and we're going to do to them exactly what you've
done because we no longer hold any moral high ground.''
Senator Patrick J. Leahy of Vermont, the ranking Democrat on
the Judiciary Committee, which will hold its hearing on
Tuesday, said: ``The first people we should listen to are the
military officers who have decades of experience with these
issues. Their insights can help build a system that protects
our citizens without sacrificing America's ideals.''
Underlying the debate over how and whether to change the law
on military commissions is a battle over the President's
authority to unilaterally prescribe procedures in a time of
war. The Supreme Court's decision was a rebuke to the
administration's assertions that President Bush's powers should
remain mostly unrestricted in a time of war.
Most military lawyers say they believe that few, if any, of
the Guantanamo detainees could be convicted in a regular court-
martial.
Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a
Sudanese detainee who has been charged before a military
commission, said she was confident that she would win an
acquittal for her client, who is suspected of being an
accountant for al Qaeda, under court-martial rules. ``For me it
was awesome to see the court's views on key issues I've been
arguing for years,'' Colonel Shaffer said.
The majority opinion, written by Justice John Paul Stevens,
said the two biggest problems with the commissions were that
the military authorities could bar defendants from being
present at their own trial, citing security concerns, and that
the procedures contained looser rules of evidence, even
allowing hearsay and evidence obtained by torture, if the judge
thought it helpful. Colonel Shaffer said she was restrained
under the rules from calling as a witness al Qaeda informant
whose information had been used to charge her client. ``I'm
going to want for my client to face his accuser,'' she said,
``and for me to have an opportunity to impeach his testimony.''
General Black. The affect of using the UMCJ to prosecute suspected
unlawful enemy combatants would be substantial. There are a number of
aspects of the court-martial system that would compromise our
warfighting mission, to include the open discovery and evidence
collection methods. Moreover, the UCMJ provides additional protections
to soldiers that are not afforded to civilians accused of a crime. It
would be inappropriate to extend those additional rights not afforded
U.S. civilians to unlawful enemy combatants. However, whatever process
is used to try unlawful enemy combatants, it will never be a ``get-out-
of-jail-free'' card. Regardless of the outcome of any unlawful enemy
combatant's trial, he may still be detained on separate grounds as long
as the conflict continues.
Admiral McPherson. The Rules for Courts Martial should be changed
only insofar as they remain in compliance with Common Article 3, while
not undermining our national security.
General Rives. I believe that the UCMJ and the MCM is a superb
starting point for updating military commissions. The processes and
procedures in the UCMJ and MCM have served us well and can be readily
adapted to meet the needs of military commissions. That process is
under way and I believe the administration is preparing legislation for
your consideration using this approach.
As I indicated in my testimony, I believe you could enact an
Article 135(a) that could detail the basic substantive requirements for
military commissions and then permit an executive order to have the
details, just as we have the MCM with the details. Alternatively,
Congress could create a separate Code of Military Commissions as a new
chapter in title 10, modeled to an appropriate degree after the UCMJ
and similarly leave the details to an executive order. Either method
must address the concerns articulated in Hamdan v. Rumsfeld.
General Sandkuhler. The UCMJ is a great model from which to develop
a system to prosecute unlawful enemy combatants. But some of the
provisions and rules would certainly need to be changed/adapted to
address this paradigm. Many of these are discussed above (e.g.,
discovery, hearsay, self-incrimination/rights warnings, handling of
classified material). I am quite confident that collectively we (e.g.,
DOD, DOJ, the administration) can create a system with rules and
procedures for military commissions that will provide a fundamentally
fair trial. The rules and procedures should be based in large part upon
the UCMJ, in full compliance with the Hamdan decision, and be amenable
to Congress and the American people.
General Romig. The focus and goal of fashioning rules and
procedures for military commissions should be to meet the
constitutional requirements of the Hamdan decision rather than
attempting to create a process that will facilitate convictions. In
meeting the constitutional requirements of Hamdan the drafters need to
bear in mind the evidentiary challenges of prosecutions derived from
the unique environment of the battlefield.
Admiral Hutson. Principally, the MRE would have to be adjusted to
accommodate the reality of gathering evidence. For example, hearsay
could be admitted if it were apparently reliable and corroborated
somehow. Physical evidence could be admitted absent a perfect chain of
custody if it were apparently reliable. Confessions and statements
against interest could be admitted under the same test in spite of a
lack of Article 31 warnings.
Coerced testimony should never be admitted under any circumstances.
[Whereupon, at 1:47 p.m., the committee adjourned.]
CONTINUE TO RECEIVE TESTIMONY ON MILITARY COMMISSIONS IN LIGHT OF THE
SUPREME COURT DECISION IN HAMDAN V. RUMSFELD
----------
WEDNESDAY, JULY 19, 2006
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 10:00 a.m. in
room SR-325, Russell Senate Office Building, Senator John
Warner (chairman) presiding.
Committee members present: Senators Warner, McCain, Inhofe,
Collins, Talent, Chambliss, Graham, Cornyn, Thune, Levin,
Kennedy, and Dayton.
Committee staff members present: Charles S. Abell, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: William M. Caniano,
professional staff member; David M. Morriss, counsel; and Scott
W. Stucky, general counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Michael J. Kuiken, professional
staff member; and William G.P. Monahan, minority counsel.
Staff assistants present: Micah H. Harris, Jessica L.
Kingston, and Jill L. Simodejka.
Committee members' assistants present: Richard H. Fontaine,
Jr., assistant to Senator McCain; John A. Bonsell, assistant to
Senator Inhofe; Mackenzie M. Eaglen, assistant to Senator
Collins; Clyde A. Taylor IV, assistant to Senator Chambliss;
Matthew R. Rimkunas, assistant to Senator Graham; Russell J.
Thomasson, assistant to Senator Cornyn; Stuart C. Mallory,
assistant to Senator Thune; Mieke Y. Eoyang, assistant to
Senator Kennedy; Frederick M. Downey, assistant to Senator
Lieberman; William K. Sutey, assistant to Senator Bill Nelson;
Eric Pierce, assistant to Senator Ben Nelson; Luke Ballman and
Chani Wiggins, assistants to Senator Dayton; and Andrew
Shapiro, assistant to Senator Clinton.
OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner. Good morning, everyone. The committee
meets today to conduct the second in a series of hearings on
military commissions in light of the recent Supreme Court
decision in Hamdan v. Rumsfeld.
Last week, we had an excellent hearing, with the testimony
from the incumbent judge advocates general (JAGs) of the Armed
Forces, the staff judge advocate to the Commandant of the
Marine Corps, and two retired JAGs. These officers gave the
committee the benefit of their many years of expertise in the
areas of military justice and the law of war. I believe that
all members will agree that the committee will benefit greatly
from having had that important testimony.
Today, we have two distinguished panels of witnesses from
the private sector. The first panel is composed of
representatives of nongovernmental organizations, including
human rights groups and bar associations. The second is
composed of academics who have significant research and
teaching experience in the areas with which the committee is
presently concerned.
I welcome all of our witnesses and thank them for finding
the time to join us here in the Senate this morning. I know
that some of you had to travel substantial distances to
participate, but this is a very important decision on behalf of
our Nation. The credibility of our Nation, in a way, is being
examined in the eyes of the world. While there may have been
the best of efforts in the first effort to try and reconcile
this issue, the Supreme Court has now spoken, and it's the
function of Congress to write a law consistent with the
guidelines in that court of opinion.
Before turning to the distinguished ranking member, I would
like to reiterate what I said last week. Congress simply must
get it right this time. We must construct a means of
prosecuting the detainees suspected of violations of the law of
war, war crimes, that will afford them legal rights. Second, we
must always keep in mind the world is watching what we do here.
The United States has always stood for adherence to the
international law of war, and we must proceed on any
legislation carefully. That legislation has to be done to the
best of our ability, such that it will survive future
examinations by the Federal court system; and, indeed, possibly
a future Supreme Court opinion.
The witnesses on our first panel are as follows: Elisa
Massimino, Washington Director of Human Rights First; Katherine
Newell Bierman, Counterterrorism Counsel, U.S. Program, Human
Rights; Eugene Fidell, President, National Institute of
Military Justice (NIMJ); Michael Mernin, Chairman, Committee on
the Military Affairs and Justice, Association of the Bar of the
City of New York; and Dr. James Carafano, Senior Research
Fellow, The Heritage Foundation.
We welcome you all.
[The prepared statement of Senator Warner follows:]
Prepared Statement by Senator John Warner
The committee meets today to conduct the second in a series of
hearings on military commissions in light of the recent Supreme Court
decision in Hamdan v. Rumsfeld. Last week, we had an excellent hearing
with testimony from the incumbent Judge Advocates General of the Armed
Forces, the Staff Judge Advocate to the Commandant of the Marine Corps,
and two retired judge advocates general. These officers gave us the
benefit of their great expertise in the areas of military justice and
the law of war, and I believe that all members will agree that the
committee will benefit greatly from having had their testimony.
Today, we have two distinguished panels of witnesses from outside
the Department of Defense. The first panel is composed of
representatives of non-governmental organizations, including human
rights groups and bar associations. The second is composed of academics
who have significant research and teaching experience in the areas with
which the committee is presently concerned. I welcome all our witnesses
to the hearing; I know that some of you have had to travel substantial
distances to participate, and we are grateful that you did so.
Before turning to the distinguished ranking member, I would like to
reiterate what I said last week: Congress must get this right. We must
construct a means of trying detainees suspected of violations of the
law of war that will pass muster, be effective, and protect our ability
to wage this war. Second, we must always keep in mind that the world is
watching what we do here. The United States has always stood for
adherence to the international law of war, and we must proceed on any
legislation carefully and, I hope, in a bipartisan manner.
The witnesses on our first panel are as follows:
Elisa Massimino, Washington Director of Human Rights First;
Katherine Newell Bierman, Counterterrorism Counsel, U.S.
Program, Human Rights Watch;
Eugene Fidell, President, National Institute of Military
Justice;
Michael Mernin, Chair, Committee on Military Affairs and
Justice, Association of the Bar of the City of New York; and
Dr. James Carafano, Senior Research Fellow, The Heritage
Foundation.
The witnesses on the second panel are:
Neal Katyal, Professor of Law, Georgetown University;
David A. Schlueter, Hardy Professor of Law and Director
Advocacy Programs, St. Mary's University; and
Scott L. Silliman, Professor of the Practice of Law and
Executive Director, Center on Law, Ethics, and National
Security, Duke University.
Chairman Warner. Senator Levin.
I'd also indicate that we discussed the International
Committee of the Red Cross (ICRC) as being a possible
participant this morning. In keeping with their long-time
traditions, although they have a keen interest, they decided
not to accept the invitation.
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. Mr. Chairman, thank you, and thank you for
convening this series of hearings. They are extremely important
to the Nation. You are proceeding with your customary
thoughtfulness and care, and the Nation is very much in your
debt for how you are handling this.
The Supreme Court in Hamdan, ruled that because the
military commission structure and procedure did not meet the
standards of the Uniformed Code of Military Justice (UCMJ) or
those of the Geneva Conventions, that they lacked ``the power
to proceed.'' Congress has now begun the process of determining
what needs to be done to ensure that our system for trying
detainees for crimes meets the standards of the laws which are
binding on the executive branch.
One administration official has testified recently that
Congress should simply ratify the military commission
procedures established by the Department of Defense (DOD),
without change. At the House Armed Services Committee (HASC)
hearing last Wednesday, DOD Deputy General Counsel Dell'Orto
stated that such an approach would be ``a very desirable way to
proceed.''
However, our Nation's top military lawyers disagree. Last
Thursday, the committee heard from six JAGs, both Active and
retired. They all rejected the idea that Congress should pass
legislation authorizing the military commissions as currently
configured. A majority of the JAGs, and I believe a majority of
the members of this committee, favor taking the existing rules
of courts-martial under the UCMJ as the starting point for the
framework for our consideration of military commissions and
making modifications where necessary to meet the conditions of
warfare and practicality. By doing so, we would benefit from
the development of our system of military justice over the last
60 years.
In addition, all the JAGs before us last week agreed that,
consistent with the Supreme Court's ruling, exceptions to the
rules for courts-martial ought to be based on practicality and
necessity, not on convenience. Our hearing last week
highlighted a number of areas which Congress will need to
examine carefully, such as discovery rights and access to
classified evidence. We very much welcome and need the advice
of our JAGs and other specialists in international law in
working our way through these complicated issues of law.
Our JAGs are the ones most knowledgeable of our system of
military justice. They are best able to evaluate the negative
impact on U.S. Service personnel when we deviate from the
standards and procedures of the UCMJ in our treatment of
others. As the JAG of the Navy, Admiral McPherson stated, ``We
need to think in terms of the long view, and to always put our
sailors, soldiers, marines, and airmen in the place of an
accused when we're drafting these rules to ensure that these
rules are acceptable when we have someone in a future war who
faces similar rules.''
So, we must not repeat the mistakes the administration made
in establishing these military commissions. Congress needs to
proceed deliberately and carefully, soliciting a range of views
on the appropriate procedures to be applied to detainees in
U.S. custody. Last week's hearing with our JAGs was the right
place to begin our discussion. Today's hearing is an important
next step in that process. Again, I want to thank our chairman
for scheduling this hearing, to give us an opportunity to hear
the views of others outside government who are knowledgeable of
our system of military justice and its impact on our security
throughout the world.
If our process of developing legislation on military
commissions is perceived as open and fair, then there is a
better chance that the end result will be accepted as
legitimate, and that any convictions will be upheld by our
courts.
Procedures for military commissions must reflect our values
as a Nation and as a leading advocate for the rule of law. This
will strengthen our cause and help rally others to join us in
opposing terrorism.
I emphasize, finally, that the issue before us today is not
whether, or for how long, detainees may be kept at Guantanamo
or elsewhere, nor what the conditions of their detention or the
rules for their treatment or interrogation are, or should be.
We are only dealing with the rules that need to be adopted to
apply in criminal trials of the small number of detainees who
may be tried for violations of the laws of armed conflict. It
must also be borne in mind that those who may be acquitted by a
military commission after a criminal trial will not be
automatically released thereby from detention.
Again, I join you, Mr. Chairman, in welcoming all of our
panelists, and I look forward to their testimony.
Chairman Warner. Thank you very much, Senator Levin.
One of our colleagues, the chairman of the Environment and
Public Works Committee, must start his own hearing this
morning. I invite you, Senator Inhofe, to give your comments.
Senator Inhofe. I thank you, Mr. Chairman.
Just to further elaborate on that, we had the water bill on
the floor, and I'll be managing that bill, and I must get down
there. I regret this, because I would like to stay here and
hear the panel. However, I do want to express the minority
view. I guess another way of putting that is once again being
the skunk at the family picnic.
After the last hearing on this subject, last Thursday, I
took some time to review what we discussed, and I am worried
about what we did then and what we're doing here today. We seem
to be trying to create some legislation that will afford more
rights to the unlawful enemy combatants who fought against us
than we afford our own citizens. Now, that's what I think we're
doing today. Let me explain.
Historically, we tried to fight terrorism as if it were
merely a criminal activity. We were attacked in the World Trade
Center in 1993, in Beirut in 1983, our embassies in Tanzania
and Kenya in 1998, and the U.S.S. Cole in 2000. Our efforts to
use criminal law to hunt and try these terrorists didn't stop
them, it didn't deter them. That's what we were doing in those
days. It emboldened them.
So, here we have the attacks on the Twin Towers in New York
and on the Pentagon and on the Flight 93 in Pennsylvania. But
all of that changed after September 11. We started treating the
enemy as the terrorists that they are. Now some here are trying
to go back by treating these terrorists like criminals. Once
again, we seem to be in denial that we are, in fact, at war. We
cannot deal with this enemy with criminal law. We need to use
all the tools available to us. I think the President set up a
commission to deal with these enemy combatants the way they
should be dealt with. I know that Senator Levin made the
comment that we are not going to go back to exactly as that
was. The Supreme Court isn't going to let us do that. But,
nonetheless, the commission did set these things up, and I
think that's the way that should have been dealt with. The
Supreme Court doesn't agree, and the system in its entirety.
However, the Supreme Court left the details up to us.
Now, I don't very often disagree, Mr. Chairman, with you,
but I don't believe we need to have a lot of hearings and spend
a lot of time on this and end up in major legislation. I
believe we need to take the commission set up by the President
and add the protections that may be needed to get on with the
trials. Instead, we seem to be trying to make an argument to
take the UCMJ, the same system used by our soldiers, take away
a few rights, and use it. But that's not going to work.
Criminal law doesn't belong in this debate. These are not
criminals; they're terrorists. Should they have the same rights
as citizens? You look at these rights that we have discussed
last week in terms of access to classified evidence, attorney-
client privileges, Miranda rights, a chain of custody, right to
counsel, we're dealing with terrorists, now. I think of the
troop in the field. Sometimes he's faced with two decisions:
pull the trigger and kill somebody or try to capture someone.
Now, could it be another decision as to whether or not they're
going to be having to read them their rights?
I would remind my colleagues that our troops are fighters,
and they're not attorneys. I bet they're wondering what we're
doing here today.
If you look closely at the panel before us today, you'd
think that this is about human rights and torture. Now, that
bothers me more than anything else. The Hamdan case was not
about torture, it was not about human rights, it did not
complain that we denied human rights. This hearing should be
about a process and procedure by which we try certain
detainees. Just as important, it should be about making sure
some of these people do not return to this battlefield or any
future battlefield. Look what happened at Guantanamo. In
Guantanamo, we caved in to pressure by some of the same people
that are causing these hearings today, and we released
detainees, only to find them again on the battlefield. At least
10 detainees we have documented that were released in
Guantanamo after U.S. officials concluded that they posed no
real threat, or no significant threat, have been recaptured or
killed by fighting the U.S. and coalition forces, mostly in
Afghanistan. Now, you have to say, if we know of 10 of them,
how many more are out there?
So, Mr. Chairman, these are not soldiers fighting for a
country. They don't deserve that status. What we are doing here
today seems to be trying to give them that status, to this one
Senator.
Let's remember, we're at war, and we're fighting
terrorists. They don't deserve the same rights as lawful
soldiers. We don't need to overly complicate this thing, Mr.
Chairman. Let's take the current system of commissions set up
by the President, add a few protections to address the problems
identified by the United States Supreme Court, and proceed on
with defending America.
I appreciate very much your giving me this opportunity.
Chairman Warner. Thank you very much, Senator Inhofe.
Are there other Senators present that would like to make
some opening comments?
Senator McCain?
Senator McCain. No, sir.
Chairman Warner. Senator Dayton? Senator Graham? Senator
Thune? [No response.]
Very well.
We are pleased, now, to receive the testimony of our
distinguished panel of witnesses, and we'll start with Ms.
Massimino, Washington Director of Human Rights First.
STATEMENT OF ELISA C. MASSIMINO, DIRECTOR, WASHINGTON OFFICE,
HUMAN RIGHTS FIRST
Ms. Massimino. Thank you, Mr. Chairman.
I have a longer statement that I'd like to submit for the
record, if I could.
Chairman Warner. Yes. I wish to advise all witnesses that
their entire prepared statement shall be made a part of today's
record. I think it would be wise if you selectively pick those
parts that you feel should be highlighted.
Thank you.
Ms. Massimino. Thank you.
Thank you, Mr. Chairman, so much for your leadership on
this issue and so many important issues facing the country. We
very much appreciate the opportunity.
Chairman Warner. We have an unusual sound system in here.
In my numerous years here, I've seen it go through a lot of
iterations. We have a new one, and it requires being about 6
inches from the microphone and speaking directly into it. We
have a lot of people here today who are quite anxious to hear
your testimony.
Ms. Massimino. Thank you, Mr. Chairman. Is that better? Can
you hear?
Chairman Warner. That is better.
Ms. Massimino. Thank you very much.
Thank you, to all the members of the committee. We have
very much appreciated the opportunity to work with many of you
on these important issues related to detainee treatment and
trial. We very much appreciate the committee's deliberate and
careful approach to these difficult subjects.
We also share the committee's goal of identifying a system
capable of bringing those who have committed war crimes to
justice in a manner that's fair, consistent with our values,
and satisfies the requirements of domestic and international
law.
From the time that the President issued the military order,
on November 13, 2001, authorizing trials by military
commission, Human Rights First has focused particular attention
on the development and operation of the system that proceeded
from that order. We submitted formal comments on the subsequent
military orders and instructions which make up the frequently
changing rules under which the commissions operated. We
published reports detailing the ongoing flaws in the commission
system. We regularly monitored and reported on commission
proceedings down at Guantanamo. We also filed friend-of-the-
court briefs in the Hamdan case in the Supreme Court and in the
Court of Appeals for the District of Columbia Circuit.
As we detailed in our recent report, Trials Under Military
Order, we believe the commission system that was struck down by
the Supreme Court failed to meet basic fair-trial standards.
Our concerns about the commissions fell into five broad
categories: overly broad jurisdiction, disincentives for
civilian participation, secret evidence and secret trial
proceedings, admissibility of evidence obtained through torture
or other coercion, and lack of an independent appeal outside
the chain of command. But an even more powerful indictment of
the commission system than the rules and procedures that
governed its operation is the way the ad hoc and constantly
changing system looked, up close, in practice. From our vantage
point as observers, one only needs to read some of the hearing
transcripts from the commission proceedings to see these trials
were not worthy of bearing the label ``Made in America.'' While
the system was staffed by many talented and honorable service
personnel, it is abundantly clear from this commission
experience why Common Article 3 of the Geneva Conventions
requires, as a prerequisite for passing sentences and carrying
out executions, trials by regularly constituted courts. The
system in operation at Guantanamo did not come close to passing
that test.
The challenge you now face is to look forward and develop a
system for trying these cases. I'm not going to take more time
today to critique the deficiencies of the failed military
commission system. That system is so inherently flawed that we
believe it should be set aside in its entirety.
The Hamdan decision presents you and the President with an
important opportunity to turn the page and to take up, with
renewed energy and improved tools, the critical task of trying
those who have committed war crimes against the United States.
In order to meet that challenge and to avoid another round
of litigation that would further delay the pursuit of justice,
it's important to understand what the Supreme Court ruling in
Hamdan requires.
Of course, as a preliminary matter, and the reason why
we're here today, any future tribunals must be authorized by
Congress and not simply decreed by the executive. Whether the
tribunals end up being general courts-martial, some modified
version of that, or properly constituted military commissions,
they must derive their authority from the legislative powers of
Congress.
Most importantly, any tribunal so authorized must provide
for a fair process consistent with the requirements of Common
Article 3 of the Geneva Conventions. Common Article 3 requires
that those tried under the laws of war must not be sentenced or
executed without ``previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.''
Now, what are those judicial guarantees? As the majority
opinion in Hamdan pointed out, ``Common Article 3 obviously
tolerates a great deal of flexibility in trying individuals
captured during armed conflict. Its requirements are general
ones crafted to accommodate a wide variety of legal systems,
but requirements, they are, nonetheless.''
While Common Article 3 does not enumerate these judicial
guarantees, we know what they are. They have been a fundamental
part of our democratic system, and they're present in any
tribunal fairly constituted under our laws. They're reflected
in our constitution and in the treaties that the United States
has signed and ratified. They are the essence of the rule of
law.
They can be boiled down, I think, to five basic principles:
First, trials have to be conducted by an independent and
impartial court applying laws in existence at the time of the
offense. This, I think, is one of the primary arguments for
beginning and sticking very closely to the UCMJ, an existing
body of law. This also means that we can't have rules
permitting one person or branch of government to be the judge,
jury, and prosecutor, and that there must be meaningful
independent judicial review of convictions. It also means that
if a person is prosecuted under the laws of war, the offense
with which he's charged must be cognizable under that body of
law.
Second, defendants must be presumed innocent prior to
trial. In our system, that means more than just uttering the
phrase ``innocent until proven guilty.'' The presumption has to
be reflected in both the structure and the rules of any
tribunal. If we seek to construct a system that will guarantee
convictions in all cases, which some seem to have suggested we
should do, that system will fall far short of fair-trial
requirements, and it will fail to deliver justice.
Third, defendants must have the right to be present at
trial. This means proceedings cannot be conducted in secret,
outside the presence of an accused or his lawyers.
Fourth, a defendant must have the right to know the
evidence being used against him, to respond to it, and to
challenge its credibility or authenticity.
Fifth, testimony cannot be compelled either from the
defendant or from other witnesses. This means not only that a
person cannot be forced to testify, but that information or
witness statements obtained through torture, cruelty, or other
coercion cannot be used as evidence.
By reaffirming the applicability of Common Article 3 to the
war with al Qaeda, the Supreme Court ruling in Hamdan also
requires that detainees be treated humanely. This is consistent
with, and reinforces, the law that you passed last year banning
cruel, inhuman, or degrading treatment of any detainee in U.S.
custody, regardless of their location or legal status under the
Geneva Conventions. It vindicates the views, which you heard
reiterated at the hearing last week, of the top military
lawyers who had argued repeatedly for the continued embrace of
that standard, but were overruled by the civilian leadership.
So, as you consider the way forward, in a nutshell, our
recommendation is: start with the UCMJ, and end up as close to
it as possible. The Supreme Court made it very clear that the
burden is on the President, and those who would deviate from
the UCMJ and the Manual for Courts-Martial, to demonstrate why
it is impractical to adhere to that system. Thus far, those
arguments have consisted mostly of fears about disclosure of
classified evidence and the absurdity of having to read Miranda
warnings to enemies captured on the battlefield. I know some of
my colleagues on the panel will address those issues in detail,
but I would say that few, if any, of those concerns expressed
so far withstand scrutiny, and most of them reflect an
incomplete understanding of the flexibility of the courts-
martial system for dealing with those issues.
We would strongly urge that Congress not embark on a
project to deviate from the UCMJ without clear evidence of real
obstacles to prosecutions. Any such deviations must be in
keeping with Common Article 3. The core feature of such a
court, of course, is that it contemplates the possibility that
persons tried before it may be acquitted. As you pointed out,
Mr. Chairman, that does not mean that they would be released.
But, if we seek to design a system that will ensure convictions
in every case, it will likely be repudiated by the Supreme
Court as inadequate.
Adopting the UCMJ as the starting framework for trials of
detainees charged with war crimes makes the most sense from an
efficient prosecutorial perspective, as well as from an
international human rights standpoint. Courts-martial offer a
fixed legal system that assures the trial's participants of a
high degree of predictability and stability. These are
hallmarks of the rule of law.
One factor in the fits and starts of the commissions at
Guantanamo that we observed was the lack of clarity regarding
what constituted commission law. The absence of time-tested and
court-adjudicated rules there resulted in continual delays.
Indeed, during our first mission to Guantanamo to monitor
military commissions, a number of commission staff shared that
view with us. One of them said, ``It would have been better to
try these guys in courts-martial. We know that now.''
Congress can vitiate the perception in much of the rest of
the world that the trials of detainees are rigged, and that the
United States is willing to deviate from fair-trial
requirements to convict those it has already concluded are
guilty, by embracing our established military justice system,
which provides full and fair-trial rights to an accused.
Likewise, applying the UCMJ as the framework would help the
United States regain its leadership mantle in advancing the
rule of law in fragile democracies abroad, an unfortunate
casualty of the detention and trial policies at Guantanamo.
Our courts-martial system is one that our uniformed men and
women, and all Americans, are rightly proud of. It's the envy
of every military in the world. Some have argued that
terrorists are not deserving of such a highly developed justice
system. But we should not shrink from applying the law to those
who violate it. By prosecuting those who have committed war
crimes within a legal system that provides fundamental
protections, we bolster the laws governing armed conflict and
human rights.
The hallmark of the rule of law as applied by civilized
nations is a system that is impartial, that is made up of
procedures and rules that are consistent, predictable, and
transparent. As Senator McCain put it last year in the context
of detainee treatment, ``It's not about them. It's about us.''
How we treat suspected terrorists, including how we try them,
speaks volumes about who we are as a Nation and about our
confidence in the institutions and values that set us apart.
Some see this as a liability. They argue that adhering to
these rules makes for an unfair fight, us with one hand tied
behind our backs while the enemy does what it pleases. But that
is because we are different from our enemy, and we must remain
so. We do not employ their tactics, and we adamantly reject
their goal, which is, as Will Taft, the former legal advisor to
the State Department, described it as a ``negation of law.''
There is no question that we have a long haul ahead of us
in combating the threat of terrorism. But adherence to the rule
of law in a system that reflects our values will only add to
our strength, not detract from it.
At least among military lawyers, there seems to be a strong
consensus that the starting point for these trials should be
the UCMJ. Much of the debate, going forward, therefore, will
revolve around what, if any, deviations from the courts-martial
procedures Congress should embrace. On this point, I want to
sound a note of caution. There is a risk that some of the same
mistakes made by the executive branch in turning away from the
UCMJ framework in the first place could be repeated in this
legislative process. Before rushing to amend the UCMJ
procedures, Congress should satisfy itself that the amendments
being sought are necessary, not just convenient or expedient,
and do not undermine basic principles of fair trials. This will
require much more discussion and debate than has been had so
far.
We urge this committee to convene a third hearing to
examine in detail the arguments and justification from the
administration for proposals that would constrict the judicial
and due-process guarantees included in the UCMJ and the Manual
for Courts-Martial.
If there's any lesson we should have learned over the past
4 years, it is that obtaining information through the use of
force, coercion, and torture is not only unnecessary, but
counterproductive. To enforce that legal prohibition, we must
draw a bright line against the introduction of evidence
obtained through unlawful coercion.
In the hearing last week, we have heard a lot of concern
from the administration and from some Members of Congress about
the impact of the Supreme Court's decision on detainee
treatment. In particular, about how the ``vague'' requirements
of Common Article 3 concerning cruelty, inhumane treatment,
humiliation, and degradation may put American personnel at risk
of prosecution for war crimes. But these concerns seem not to
have resonated with the military lawyers heard by this
committee last week. To a person, as I heard it, they agreed,
quite easily, that the requirements of Common Article 3 are
well-known and well-understood by all military personnel.
Some have argued that we should not afford Common Article 3
protections to suspected terrorists because they have no
respect for the rule of law. But the costs of such an approach
have come into sharp relief over the last several years--a
breakdown in discipline in the military, loss of moral
authority and the ability to lead, and further endangerment of
our own personnel deployed abroad. Once we start chipping away
at the Geneva Conventions, we invite others to do the same. As
Senator McCain reminded us, there will be more wars, and there
will be Americans who will be taken captive. If we start to
carve out exceptions to treaties to which we are signatories,
then it will make it very easy for our enemies to do the same
in the case of American prisoners. Congress should consider
very carefully the actions it takes now and ensure that they do
not lead to a day when one of our enemies uses our positions on
the Geneva Conventions to argue that it's permissible to
subject a U.S. servicemember to mock drowning.
One of the most striking things about the committee's
hearing on these issues last week was the absence of any
controversy about the appropriateness of Common Article 3 as
the baseline standard for humane treatment. This simply is not
in contention, as far as I can see. The recent memo from Deputy
Secretary Gordon England which directed a review of all the
defense policies to ensure compliance with Common Article 3
reinforces this point.
Further evidence that there's been a return to Common
Article 3 as the controlling standard can be found in the new
draft Counterinsurgency Manual. This manual reflects the wisdom
and the experience of the U.S. military in its operations in
Afghanistan and Iraq. It embraces established international
legal standards, and was signed by Lieutenant General David
Petraeus, of the U.S. Army, and Lieutenant General James
Mattis, of the U.S. Marines, last month. That guidance is clear
in its application of Common Article 3 to the most
unconventional of battle scenarios and enemies, ``The Geneva
Conventions, as well as the convention against torture and
other cruel, inhuman, and degrading treatment or punishment,
agree on what is unacceptable for interrogation. Torture and
cruel, inhumane, and degrading treatment is never a morally
permissible option, even in situations where lives depend on
gaining information. No exceptional circumstances permit the
use of torture or other cruel, inhuman, or degrading
treatment.'' That's from the current draft Counterinsurgency
Manual from last month. It lays out the full text of Common
Article 3 and says these requirements are specifically intended
to apply to internal armed conflict.
We continue to await the revised Manual on Intelligence
Interrogations which, under the McCain amendment, will govern
all military interrogations. We urge this committee to remain
engaged in the development of that manual and of other legal
and operational guidance.
Yesterday, Attorney General Gonzales testified that he was
unaware of any revised guidance for nonmilitary personnel to
ensure compliance with the Detainee Treatment Act's (DTA)
interrogation provisions. We urge Congress to closely monitor
compliance with the law, not only by the military, but also by
other Government agencies involved in interrogation and
detention of prisoners. When military and nonmilitary personnel
participate in joint operations, a situation which is
increasingly common in the current conflict, it is critical
that a single lawful standard of conduct with respect to
detainee treatment governs the actions of all U.S. personnel.
In conclusion, the Supreme Court's decision in the Hamdan
case presents an opportunity not only for Congress, but for the
country. We have struggled for nearly 5 years to reconcile our
most deeply held values and democratic institutions with an
effective strategy to combat the ongoing threat of terrorism.
Military commissions have been a part of that struggle. Now the
Supreme Court has reminded us that even in the face of
extraordinary threats to our security, we should see these
values and institutions not as liabilities, but as assets and
tools in the struggle to combat terrorism. These values and
institutions in particular here, the UCMJ and the Geneva
Conventions, should again become the lodestar.
As you focus, in the near-term, on the appropriate military
justice system to try suspected terrorists, I would also urge
the committee to remember that in addition to a military
justice system that is the envy of the world, our existing
system of civilian courts has proven quite adept at delivering
justice to those who would engage in terrorism here.
Thank you.
[The prepared statement of Ms. Massimino follows:]
Prepared Statement by Elisa Massimino
introduction
Thank you, Chairman Warner and members of the committee, for
inviting me to share the views of Human Rights First on these important
issues. We are very grateful for your leadership, Mr. Chairman, and we
have appreciated the opportunity to work with your office, with Senator
McCain, and with other members of the committee on these and other
issues related to the treatment of detainees. We appreciate also the
committee's careful and deliberate approach to these difficult
subjects. We share the committee's goal of identifying a system capable
of bringing those who have committed war crimes to justice in a manner
that is fair, consistent with our values, and satisfies the
requirements of domestic and international law.
My name is Elisa Massimino, and I am Washington Director of Human
Rights First. For the past quarter century, Human Rights First has
worked in the United States and abroad to create a secure and humane
world by advancing justice, human dignity and respect for the rule of
law. We support human rights activists who fight for basic freedoms and
peaceful change at the local level; protect refugees in flight from
persecution and repression; help build a strong international system of
justice and accountability; and work to ensure that human rights laws
and principles are enforced in the United States and abroad.
Since the President issued the Military Order on November 13, 2001,
authorizing trials by military commission,\1\ Human Rights First has
focused particular attention on the development and operation of the
system that proceeded from that order. We submitted formal comments on
the subsequent military orders and instructions that made up the
frequently changing rules under which the commissions operated,
published reports detailing the ongoing flaws in the commission system,
and regularly monitored and reported on commission proceedings in
Guantanamo. We also filed friend of the court briefs in Hamdan v.
Rumsfeld in the United States Court of Appeals for the District of
Columbia Circuit and in the Supreme Court of the United States.
---------------------------------------------------------------------------
\1\ Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).
---------------------------------------------------------------------------
In our recent report entitled Trials Under Military Order,\2\ we
outlined the ways in which the commissions failed to meet basic fair
trial standards. Our concerns about the commissions fell into five
broad categories: overly broad jurisdiction; disincentives for civilian
participation; secret evidence and secret trial proceedings;
admissibility of evidence obtained through torture or other coercion;
and, lack of an independent appeal outside the chain of military
command. But an even more powerful indictment of the commission system
than the rules and procedures that governed its operation is the way
the ad hoc and constantly-changing system looked up close, in practice.
From our vantage point as observers--and one only needs to read some of
the hearing transcripts from the commission proceedings to confirm
this--these were trials unworthy of bearing the label ``Made in
America.'' While the system was staffed by many talented, dedicated and
honorable service personnel, it is abundantly clear from this
commission experience why Common Article 3 of the Geneva Conventions
requires, as a prerequisite for passing sentences and carrying out
executions, trials by a ``regularly constituted court.'' The system in
operation at Guantanamo did not come close to passing that test.
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\2\ Human Rights First, Trials Under Military Order, (2006)
available at http://www.humanrightsfirst.org/us--law/PDF/detainees/
trials--under--order0604.pdf.
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The challenge you now face is to look forward and develop a fair
and appropriate system for trying these cases. I am not going to take
time today to further critique the deficiencies of the failed military
commission system. That system is so inherently flawed that we believe
it should be set aside in its entirety. The Hamdan decision presents
Congress and the President with an important opportunity to turn the
page and to take up--with renewed energy and improved tools--the
critical task of trying those who have committed war crimes against the
United States.
i. what the hamdan ruling requires
In order to meet this challenge and to avoid further litigation, it
is important to recognize what the Supreme Court ruling in Hamdan
requires. As a preliminary matter, it is now clear that any future
tribunals must be authorized by Congress, not simply decreed by the
Executive. Whether these tribunals end up being general courts-martial,
which Congress has already authorized, some modified version of courts-
martial, or properly constituted military commissions, they must derive
their authority from the legislative powers of Congress.
The tribunals must provide for a fair process, consistent with the
requirements of Common Article 3 of the Geneva Conventions. Common
Article 3 requires that those tried under the laws of war must be
sentenced or executed pursuant to a ``previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.'' \3\
---------------------------------------------------------------------------
\3\ See Geneva Convention for the Amelioration of the Condition of
the Wounded and the Sick in Armed Forces in the Field, Aug. 12, 1949,
entered into force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 31,
available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/fe20c3d903ce27e3c125641e004a92f3;
Geneva Convention for the Amelioration of the Condition of Wounded,
Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949,
entered into force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 85,
available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/44072487ec4c2131c125641e004a9977;
Geneva Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, entered into force Oct. 21, 1950. 6 U.S.T. 3316, 75 U.N.T.S.
135, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68;
Geneva Convention Relative to the Protection of Civilian Persons in
Times of War, Aug. 12, 1949, entered into force Oct. 21, 1950, 6 U.S.T.
3516, 75 U.N.T.S. 287, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5.
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What are these judicial guarantees? As the majority opinion in
Hamdan pointed out, ``Common Article 3 obviously tolerates a great
degree of flexibility in trying individuals captured during armed
conflict; its requirements are general ones, crafted to accommodate a
wide variety of legal systems. But requirements they are nonetheless.''
\4\ While Common Article 3 does not enumerate explicitly these judicial
guarantees, they are a fundamental part of our democratic system and
are present in any tribunal fairly constituted under our laws. These
judicial guarantees are reflected in our own Constitution and in
treaties signed and ratified by the United States, including the Geneva
Conventions, the International Covenant on Civil and Political Rights,
and the Protocols to the Geneva Conventions, which the United States
negotiated and signed.
---------------------------------------------------------------------------
\4\ Hamdan v. Rumsfeld, 548 U.S.--(2006) (slip op. at 72).
---------------------------------------------------------------------------
They are the essence of the rule of law, and they can be boiled
down to five basic principles:
First, trials must be conducted by an independent and
impartial court applying laws in existence at the time of the
offense. This means that we cannot have rules permitting one
person or branch of government to be the judge, jury and
prosecutor, and that there must be meaningful, independent
judicial review of convictions. It also means that, if a person
is prosecuted under the laws of war, the offense with which he
is charged must be cognizable under that body of law.
Second, defendants must be presumed innocent prior to
trial. In our system, that means more than just uttering the
phrase ``innocent until proven guilty.'' The presumption must
be reflected in both the structure and the rules of any
tribunal. If we seek to construct a system that will guarantee
convictions in all cases, which some seem to have suggested we
should do, that system will fall short of fair trial
requirements and will fail to deliver justice.
Third, defendants must have the right to be present at
trial. This means proceedings cannot be conducted in secret
outside the presence of an accused or of his lawyers.
Fourth, a defendant must have the right to know the
evidence being used against him, to respond to it, and to
challenge its credibility or authenticity.
Fifth, testimony cannot be compelled either from a
defendant or from other witnesses. This means not only that a
person cannot be forced to testify, but also that information
or witness statements obtained through torture, cruelty or
other coercion cannot be used as evidence.
By reaffirming the applicability of Common Article 3 to the
conflict with al Qaeda, the Supreme Court ruling in Hamdan also
requires that detainees be treated humanely. This is consistent with
and reinforces the law Congress passed last year banning cruel, inhuman
or degrading treatment of any detainee in U.S. custody, regardless of
their location or legal status under the Geneva Conventions. It
vindicates the views of the top military lawyers, reiterated here last
week, for the continued embrace of this standard.
ii. a way forward
A. Start with the Uniform Code of Military Justice (UCMJ)
The Supreme Court made clear that the burden is on the President
and those who advocate deviating from the UCMJ and Manual for Courts-
Martial to demonstrate why it is impracticable to adhere to this
system. Thus far, some administration officials have raised a litany of
fears about following these procedures, including absurd assertions
about the need to read Miranda warnings to enemies captured on the
battlefield. In general, these concerns reflect an incomplete or
inaccurate understanding of the flexibility of the court martial system
for dealing with these issues. We strongly urge that Congress not
embark on a project to deviate from the UCMJ without clear evidence of
real obstacles to prosecutions; any such deviations must be in keeping
with Common Article 3. The core feature of such a court, of course, is
that it assumes the possibility that persons tried before it may be
acquitted. If the system is designed to ensure convictions in every
case, it will almost certainly be repudiated by the Supreme Court.
The UCMJ, together with the Manual for Courts-Martial, incorporates
these fundamental trial rights. The UCMJ has been in effect since the
Korean War. It includes a body of law that addresses both basic fair
trial standards and national security concerns. But the understanding
that courts-martial are an appropriate forum for trying those who
violate the laws of war dates even farther back, to the Nation's
founding. Congress first authorized courts-martial to try spies in
1776, predating the Constitution by more than a decade. General courts-
martial were granted jurisdiction over all customary law of war
violations in a 1913 amendment to the Articles of War. This language
was subsequently reenacted in current UCMJ Article 18.\5\
---------------------------------------------------------------------------
\5\ 10 U.S.C. Sec. 818.
---------------------------------------------------------------------------
Adopting the UCMJ as the starting framework for trials of detainees
charged with war crimes makes the most sense both to carry out
efficient prosecutions and to meet this country's human rights
obligations. Courts-martial offer a fixed legal system that assures the
trials' participants--judge, prosecutor and defense counsel--of a high
degree of predictability and stability. One of the major deficiencies
with the military commissions at Guantanamo was the lack of clarity as
to what constituted ``commission law.'' The absence of time-tested and
court-adjudicated rules and procedures resulted in continual delays.
Indeed, during Human Rights First's repeated visits to Guantanamo to
monitor military commissions, a number of commissions staff shared
these views, saying that ``it would have been better to try these guys
in courts-martial. We know it.''
General courts-martial, by comparison, clearly meet the fundamental
requirements of Common Article 3. They are the mechanisms for trying
U.S. soldiers and are effectively sanctioned by the Geneva
Conventions.\6\
---------------------------------------------------------------------------
\6\ Geneva Convention Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, entered into force Oct. 21, 1950. 6 U.S.T. 3316, 75
U.N.T.S. 135, art. 102, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68.
---------------------------------------------------------------------------
On a broader level, adopting the UCMJ as the framework would be an
important step in regaining U.S. moral authority in the struggle
against terrorism. It would reassure allies who have grown increasingly
reluctant to cooperate in these prosecutions. Adopting this established
system of laws and rules, consistent with fair trial standards, also
will reduce the threat of subjecting Americans abroad to unfair trials,
including our soldiers and sailors. The Geneva Conventions system
depends on the reciprocal adherence to the treaties. When the United
States rejects protections that should be afforded to anyone captured
by a ``Detaining Power,'' it encourages other nations to do so as well,
putting Americans in greater jeopardy, now and in the future. With
troops in more than 100 countries, the U.S. military is the most
forwardly deployed military in the world. No other nation's
servicemembers have more to lose from a degradation of the Geneva
Conventions.
By placing the military commissions at Guantanamo Bay under the
exclusive control of the executive branch, the United States provided a
rationale for repressive governments to defend their rejection of
independent courts. The United States has historically criticized these
governments, especially when they convened politically motivated
military tribunals, in places like Burma, Colombia, Peru, Egypt, and
Turkey, contending that such tribunals reflected political rather than
legal norms.\7\ The military commissions at Guantanamo have undermined
U.S. diplomatic efforts to champion independent courts abroad.
---------------------------------------------------------------------------
\7\ Harold Hongju Koh, The Case Against Military Commissions, 96
AM. J. INT'L L. 337, 341 (2002).
---------------------------------------------------------------------------
Some of these governments have explicitly cited the establishment
of U.S. military commissions to justify their own legal and military
policies that contravene human rights protections.\8\ Egyptian
President Hosni Mubarak has said that the Guantanamo military
commissions vindicated his choice of military tribunals to try domestic
``terrorists.'' He emphasized that ``the events of September 11 created
a new concept of democracy that differs from the concept that western
States defended before these events, especially in regard to the
freedom of the individual.'' \9\
---------------------------------------------------------------------------
\8\ Lawyers Committee for Human Rights [now Human Rights First],
Assessing the New Normal: Liberty and Security for the Post-September
11 United States, 92-95 (2003) available at http://
www.humanrightsfirst.org/pubs/descriptions/Assessing/
AssessingtheNewNormal.pdf .
\9\ Id. at 93 (quoting Joe Stork, The Human rights Crisis in the
Middle East in the Aftermath of the September 11, Cairo Institute for
Human Rights Studies 6).
---------------------------------------------------------------------------
Our uniformed men and women are rightly proud of our courts-martial
system; it is the envy of every military in the world. Some have argued
that terrorists are not ``deserving'' of such a highly developed
justice system. But we should not shrink from applying the law to those
who violate it. Rather, by prosecuting those who have committed war
crimes within a legal system that provides fundamental protections, we
bolster the laws governing armed conflict and human rights.
The hallmark of the rule of law as applied by civilized nations is
a system that is impartial and that is made up of procedures and rules
that are consistent, predictable and transparent. As Senator McCain put
it last year in the context of detainee treatment, ``it's not about
them, it's about us.'' \10\ How we treat suspected terrorists--
including how we try them--speaks volumes about who we are as a nation,
and our confidence in the institutions and values that set us apart.
---------------------------------------------------------------------------
\10\ ``CBS News' Face the Nation,'' Nov. 13, 2005 (transcripts of
remarks by Senator John McCain (R-AZ)).
---------------------------------------------------------------------------
Some administration officials argue that this approach is a
liability. They say that adhering to these rules makes for an unfair
fight--we fight with one hand tied behind our backs while the enemies
do as they please. But that is because we are different from our
enemies and we must remain so: we do not employ their tactics and we
adamantly reject their goal, which is, as William Taft, the former
Legal Advisor to the Department of State described it, the ``negation
of law.'' \11\ There is no question that we have a long and difficult
road ahead of us in combating the threat of terrorism. But adherence to
the rule of law, a system that serves as a shining example to the rest
of the world, a system that reflects our values, will only add to our
strength, not detract from it.
---------------------------------------------------------------------------
\11\ William H. Taft, The Law of Armed Conflict After 9/11: Some
Salient Features, 28 YALE J. INT'L L. 319 (2003).
---------------------------------------------------------------------------
B. Carefully Evaluate Requested Deviations from the UCMJ
Among military lawyers and others, there is a strong consensus that
the starting point for any future trials should be the UCMJ. Much of
the debate going forward should consider what deviations, if any, are
needed from the courts-martial procedures.
On this point, I would like to sound a note of caution. There is a
risk that some of the same mistakes made by the executive branch in
rejecting the UCMJ framework in the first place could be repeated in
this legislative process. Before rushing to amend the UCMJ procedures,
Congress should satisfy itself that the amendments being sought are
necessary (not just convenient or expedient) and do not undermine basic
principles of fair trials. This will require careful discussion and
debate, including future hearings by this committee, to examine, in
detail, the arguments and justification for any specific proposals that
would constrict the judicial and due process guarantees included in the
UCMJ and the Manual for Courts-Martial.
I'd like to address several of these issues briefly.
Conspiracy
Under the original Military Commission Instruction No. 2, an
accused could be prosecuted for conspiracy as a stand-alone and
substantive offense.\12\ Seven Guantanamo detainees were, in fact,
charged only with the crime of conspiracy.\13\ But conspiracy to commit
a war crime is not a crime under international law. The Military
Commission's formulation of conspiracy did not, in any event, reflect
U.S. law. Congress should be wary about permitting prosecutions for
conspiracy. The offense of conspiracy is not accepted around the
world--civil law jurisdictions do not generally recognize it--and is
not therefore a part of the laws of war. Conspiracy to commit war
crimes is not included as an offense in the Geneva Conventions. It has
been excluded by every tribunal properly constituted to try war crimes,
including Nuremberg, the International Military Tribunal for the Far
East (IMTFE), the International Criminal Tribunal for the Former
Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda
(ICTR), and the International Criminal Court (ICC) Statute. In the
context of Nuremberg, then-U.S. Assistant Attorney General Herbert
Wechsler explained that proof of the criminality of the defendants
would be best accomplished ``only by proof of personal participation in
specific crimes.''\14\ For a similar reason, David Scheffer, the chief
U.S. negotiator on the ICC, said that ``in war something more is
required than evidence that one might have agreed in some vague or
ambiguous way, or inferentially by simply being in close proximity to
the master planners and implementers, with a plan or design to violate
the law of war.''\15\ Finally, conspiracy has been recognized as too
broad a charge in times of war: unlike in peacetime, in a time of war,
an offence of conspiring to commit a war crime may result in entire
armies being brought before courts on the basis of ``guilt by
associations.''\16\
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\12\ Military Commission Instruction No. 2, 32 CFR Sec. 11.6(c)(6)
(2005).
\13\ The charge sheets are available at http://www.defenselink.mil/
news/Nov2004/charge--sheets.html.
\14\ Herbert Wechsler, Memorandum for the Attorney General (Francis
Biddle) from the Assistant Attorney General (Herbert Wechsler), in The
American Road to Nuremberg: Documentary Record 1944-1945 (Bradley F.
Smith ed., 1982) at 84, 89.
\15\ David Scheffer, Why Hamdan is Right about Conspiracy
Liability, Jurist, Mar. 2006, available at http://jurist.law.pitt.edu/
forumy/2006/03/why-hamdan-is-right-about-conspiracy.php.
\16\ Cf. Scales v. United States, 367 U.S. 203, 209 (1961) (Court
interpreted the Alien Registration Act of 1940 as requiring ``not only
knowing membership [in Communist Party], but active and purposive
membership, purposive that is as to the organization's criminal ends.''
(emphasis added)).
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This does not mean that those who assist those engaged in terrorist
acts will escape prosecution. Under international law, prosecutors may
charge an individual with the offense of aiding and abetting a war
crime. So, for example, the ICTY and ICTR Statutes each provide that
``[a] person who planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution of a crime
referred to in Articles 2 to 4 [includes war crimes] of the present
Statute, shall be individually responsible for the crime.''\17\ The ICC
Statute contains a similar provision.\18\ In addition, a person may be
found guilty of an underlying offense committed by others under the
doctrine of joint criminal enterprise or common plan. Under the joint
criminal enterprise theory, liability is imposed on an individual who
(i) enters into an agreement with one or more others for the commission
of a crime and (ii) takes criminal action in furtherance of that
agreement.\19\ Either of these approaches would comport with the laws
of war and fair trial standards. Finally, if an individual cannot be
prosecuted under the laws of war, prosecution is available under the
civilian system for a plethora of crimes. Congress should hear from
experts on these offenses and theories of liability before legislating
new offenses that may not comport with the laws of war.
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\17\ Statute of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1
(1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827
(1993), Art. 7; Statute of the International Tribunal for Rwanda,
adopted by S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N.
Doc. S/RES/955 (1994), 33 I.L.M. 1598, 1600 (1994), Art. 6.
\18\ Rome Statute of the International Criminal Court, U.N. Doc. A/
CONF.183/9*, entered into force 1 July 2002, Art. 25(d). Article 25(d)
imposes liability if, inter alia, an individual[i]n any other way
contributes to the commission or attempted commission of [a crime] by a
group of persons acting with a common purpose. Such contribution shall
be intentional and shall either: (i) be made with the aim of furthering
the criminal activity or criminal purpose of the group, where such
activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or (ii) be made in the knowledge of the
intention of the group to commit the crime.''
\19\ The ICTY distinguishes between conspiracy and joint criminal
enterprise. See e.g., Prosecutor v. Milutinovic, Decision on Dragoljub
Ojdanic's Motion Challenging Jurisdiction--Joint Criminal Enterprise,
Case No. IT-99-37-AR72 (May 21, 2003) at para. 23, available at http://
www.un.org/icty/milutinovic/appeal/decision-e/030521.pdf (``Joint
criminal enterprise and ``conspiracy'' are two different forms of
liability. Whilst conspiracy requires a showing that several
individuals have agreed to commit a certain crime or set of crimes, a
joint criminal enterprise requires, in addition to such a showing, that
the parties to that agreement took action in furtherance of that
agreement. In other words, while mere agreement is sufficient in the
case of conspiracy, the liability of a member of a joint criminal
enterprise will depend on the commission of criminal acts in
furtherance of that enterprise.''); Prosecutor v. Stakic, Case No. IT-
97-24-T (July 31, 2003) at para. 433, available at http://www.un.org/
icty/stakic/trialc/judgement/stak-tj030731e.pdf (``joint criminal
enterprise can not be viewed as membership in an organisation because
this would constitute a new crime not foreseen under the Statute and
therefore [would] amount to a flagrant infringement of the principle
nullum crimen sine lege.'') The ICTY jurisprudence suggests that the
joint criminal enterprise has a higher threshold than conspiracy in
that it requires an additional proof that co-conspirators took action
in furtherance of the conspiracy. However, in the United States, many
state conspiracy statutes and the Federal conspiracy statute similarly
require the commission of an overt act. It would seem that, at least as
compared to those laws that require overt act, joint criminal
enterprise and conspiracy provide the same basis of individual
liability.
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Confrontation of evidence
Secret trials are anathema to our system of laws. The original
military commission regulations permitted trials to be closed based
solely on the assertion of general national security reasons without
any other standards or procedural protections.\20\ We recognize the
importance of protecting especially sensitive information, disclosure
of which would interfere with the military efforts or compromise
sensitive, important intelligence sources and methods. But the Supreme
Court has made clear that our Constitution requires that individuals
not be deprived of life or liberty without an opportunity to confront
the evidence against them and to be apprised of exculpatory evidence in
the hands of the government.\21\ This should be our starting point.
Then, in narrowly defined circumstances, with adequate procedural
protections, truly sensitive evidence that the prosecution wants to
introduce against a defendant could be kept secret from the public. But
the rules need to reflect the fact that these are extraordinary
measures, limited to cases involving highly sensitive information in
which there would be significant, identifiable harm to military
operations or secret intelligence sources or methods.
---------------------------------------------------------------------------
\20\ Military Commission Order No. 1, 32 CFR Sec. 9.6 (b)(3);
(d)(5)(B) (2003). The Order was revised on August 31, 2005 to preclude
admission of evidence withheld from the accused if the Presiding
Officer determines admission of such evidence would result in ``denial
of a full and fair trial.'' Military Commission Order No. 1, 32 CFR
Sec. 9.6(d)(5)(B) (2005).
\21\ Jencks v. United States, 353 U.S. 657 (1957); Roviaro v.
United States, 353 U.S. 53 (1957).
---------------------------------------------------------------------------
The same fundamental considerations would apply to rules for
discovery: start from the principle of the due process right to
confront and question evidence, and provide delineated and narrowly
defined exceptions that permit flexibility.
No compelled testimony
If there is any lesson we should have learned over the past 4
years, it is that obtaining information through the use of force,
coercion or intimidation, is not only unnecessary, but counter-
productive. To enforce legal prohibitions, we must draw a bright line
against the introduction of any evidence obtained through unlawful
coercion. In the last week, we have heard a great deal of concern from
the administration and from some Members of Congress about the impact
of the Supreme Court's Hamdan decision on detainee treatment, and in
particular, about the ``vague requirements'' of Common Article 3
prohibiting cruelty, inhuman treatment, humiliation and degradation.
Some administration officials argue that this prohibition may put
American personnel at risk of prosecution for war crimes. These
concerns did not resonate with the military lawyers you heard last
week. To a person, they agreed that the requirements of Common Article
3 are well-known and well-understood by all military personnel, and
should be followed.
It is true, of course, that the administration had previously taken
positions that blurred these rules and unfortunately resulted in
confusion about what conduct was permissible.\22\ That effort to narrow
the obligations to refrain from cruel, inhuman and degrading treatment
was remedied in part through the Detainee Treatment Act. The
appropriate response now to ensure clarity about Common Article 3's
standards is to provide sufficient guidance--including in the
operations and field manuals--to ensure that all service members steer
completely clear of conduct that would place them at risk of
prosecution.
---------------------------------------------------------------------------
\22\ Memorandum for William J. Haynes II, General Counsel,
Department of Defense from John Yoo, Deputy Assistant Attorney General
and Robert J. Delahunty, Special Counsel, January 9, 2002.
---------------------------------------------------------------------------
The same holds true for non-military personnel. In the words of
General Rives who testified before this committee last week: ``Speaking
to a lot of folks in the Intelligence Community and having read a fair
amount about it, I don't believe they need to cross the lines into
violations of the Detainee Treatment Act or Common Article 3 to
effectively gather intelligence. Sometimes we will gather intelligence
knowing that we're not going to be able to use that evidence against an
individual in a criminal court, and that's okay. Sometimes you can't
have your cake and eat it too.'' \23\
---------------------------------------------------------------------------
\23\ Transcript of the Hearing of the Senate Committee on Armed
Services: Military Commissions in Light of the Supreme Court Decision
in Hamdan v. Rumsfeld, July 13, 2006, Federal News Service, p. 41.
---------------------------------------------------------------------------
As one U.S. court noted, ``[i]t is not necessary that every aspect
of what might comprise a standard such as `cruel, inhuman, or degrading
treatment' be fully defined and universally agreed upon before a given
action meriting the label is clearly proscribed under international
law.'' \24\
---------------------------------------------------------------------------
\24\ Xuncax v. Gamajo, 886 F. Supp. 162, 187 (D. Mass. 1995).
---------------------------------------------------------------------------
Guidance on what constitutes treatment prohibited by Common Article
3 can come from international tribunals, to which administration
witnesses have referred as a source for guidance on procedure and
rules. The ICTY, for example, has said that ``cruel treatment
constitutes an intentional act or omission, that is, an act which,
judged objectively, is deliberate and not accidental, which causes
serious mental or physical suffering or injury or constitutes a serious
attack on human dignity.'' \25\ The ICTY similarly held that an outrage
upon personal dignity is an act that causes ``serious humiliation or
degradation to the victim,'' \26\ and requires humiliation to be ``so
intense that the reasonable person would be outraged.'' \27\ According
to that international tribunal, a perpetrator must have acted (or
failed to act) deliberately and must have been able to perceive his
suffering to be the ``foreseeable and reasonable consequences of his
actions.'' \28\ These formulations are very similar to the way in which
offenses are defined under U.S. criminal law.
---------------------------------------------------------------------------
\25\ Prosecutor v. Delalic, Case No. IT-96-21-T (Nov. 16, 1998) at
para. 552, available at http://www.un.org/icty/celebici/trialc2/
judgement/cel-tj981116e.pdf.
\26\ Prosecutor v. Aleksovski, Case No. IT-95-14/1-T (June 25,
1999) at para. 56, available at http://www.un.org/icty/aleksovski/
trialc/judgement/ale-tj990625e.pdf; see also Prosecutor v. Kunarac,
Case No. IT-96-23 T& IT-96-23/1 T (February 22, 2001) at para. 507,
available at http://www.un.org/icty/kunarac/trialc2/judgement/kun-
tj010222e.pdf.
\27\ Prosecutor v. Aleksovski, Case No. IT-95-14/1-T (June 25,
1999) at para. 56.
\28\ Prosecutor v. Aleksovski, id.
---------------------------------------------------------------------------
Some administration officials continue to assert that the United
States should not afford Common Article 3 protections to suspected
terrorists because they have no respect for the rule of law. The costs
of such an approach, however, have come into sharp relief over the last
several years: a breakdown in discipline in the military, loss of moral
authority and the ability to lead, and further endangerment of our own
personnel deployed abroad. Once we start chipping away at the Geneva
Conventions, we invite others to do the same. As Senator McCain
remarked last week, ``[W]e will have more wars, and there will be
Americans who will be taken captive. If we somehow carve out exceptions
to treaties to which we are signatories, then it will make it very easy
for our enemies to do the same in the case of American prisoners.''
Congress should consider carefully that the actions it takes now do not
lead to a day when one of our enemies uses our positions on the Geneva
Conventions to argue that it is permissible to subject a U.S.
servicemember to mock drowning.
We have already witnessed repressive regimes justifying abusive
treatment of their nationals by reference to our Nation's conduct in
the ``war on terror.'' We have already experienced the reluctance of
our allies to cooperate with us in counterterrorism measures because of
concern over our treatment of detainees. For example, Dutch and
Canadian forces in Afghanistan agreed to turn over any captured persons
to Afghanistan, but not to the United States, because of concerns over
detainee treatment.\29\ The support of our allies is crucial to our
ability to combat terrorist acts. The more we break away from the rule
of law, including Common Article 3, the more we will stand alone. That
we simply cannot afford.
---------------------------------------------------------------------------
\29\ Michael Byers, Legal Opinion on the December 18, 2005
Arrangement for the Transfer of Detainees between the Canadian Forces
and the Ministry of Defence of the Islamic Republic of Afghanistan,
April 7, 2006, available at www.polarisinstitute.org/pdf/Attaran--7--
April--2006.pdf.
---------------------------------------------------------------------------
C. Ensure Humane Treatment for All Detainees in U.S. Custody
One of the most striking things about the committee's hearing on
these issues last week was the absence of any controversy about the
appropriateness of Common Article 3 as the baseline standard for all
detainee treatment. This was evidenced by a recent memorandum of Deputy
Secretary of Defense Gordon England directing a review of all policies
and procedures to ensure compliance with Common Article 3.
Another welcome development evidencing a return to Common Article 3
as the controlling standard is the new draft counterinsurgency manual.
This manual reflects the wisdom and experience of the U.S. military in
its operations in Afghanistan and in Iraq. It embraces established
international legal standards. Signed by Lieutenant General David
Petraeus of the U.S. Army and Lieutenant General James Mattis of the
U.S. Marines in June of this year, the new guidance is clear in its
application of Common Article 3 to the most unconventional of battle
scenarios and enemies:
The Geneva Conventions as well as the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment agree on what is unacceptable for interrogation.
Torture and cruel, inhumane, and degrading treatment is never a
morally permissible option, even in situations where lives
depend on gaining information. No exceptional circumstances
permit the use of torture and other cruel, inhuman or degrading
treatment.
Counterinsurgency, FM 3-24, 7-42 (June 2006) (Final Draft).
The counterinsurgency manual also lays out the full text of Common
Article 3, stating that its provisions are ``specifically intended to
apply to internal armed conflicts'' and that insurgents, while not
qualifying as prisoners of war, must be ``accorded the minimum
protections described in Common Article 3.'' \30\ The manual reflects
the military's assessment that not only is the application of Common
Article 3 necessary as a legal matter but that it is a workable
standard that will inure to the safety and security of U.S. soldiers
and to victory for U.S. interests.
---------------------------------------------------------------------------
\30\ Counterinsurgency, FM 3-24, D-10, 11.(June 2006) (Final
Draft).
---------------------------------------------------------------------------
We continue to await the revised manual on intelligence
interrogations. Under the McCain Amendment, it will govern all military
interrogations. We urge this committee to remain closely engaged in the
development of that manual and of other legal and operational guidance.
Yesterday, Attorney General Gonzales testified that he was unaware of
any revised guidance for non-military personnel to ensure compliance
with the Detainee Treatment Act's interrogation provisions. We urge
Congress to closely monitor compliance with the law not only as it
applies to the military but also to the Central Intelligence Agency and
other Government agencies involved in interrogation and detention of
prisoners. When military and non-military personnel participate in
joint operations, a situation which is increasingly the case today, it
is critical that they follow a single, lawful standard of conduct with
respect to detainee treatment.
conclusion
The Supreme Court's decision in the Hamdan case presents an
opportunity not only for Congress but for the country. We have
struggled for nearly 5 years to reconcile our most deeply held values
and democratic institutions with a strategy to combat ongoing threats
to our national security. The military commissions at Guantanamo have
been a part of our response. Now the Supreme Court has reminded us
that, even in the face of extraordinary threats to our security, our
traditional values and institutions should be seen not as liabilities,
but as assets--tools in the struggle to combat terrorism. These values
and institutions--in particular here, the UCMJ and the Geneva
Conventions--should again become the lodestar.
Finally, as you focus in the near term on the appropriate military
justice mechanism to try those suspected of committing acts of
terrorism, we should also remember that, in addition to a military
justice system that is the envy of the world, our existing system of
civilian courts has proven quite adept at delivering justice to those
who would engage in acts of terrorist violence here.
Thank you.
Chairman Warner. That was a very important statement that
you've given us. If you'll make copies of that available to us,
we didn't get it prior to the hearing.
At this time, I'd like to recognize our distinguished
colleague from South Carolina, who is a colonel in the Reserve
Judge Advocate General's Corps and whose wisdom and a little
wit from time to time have been of great value to this
committee, and he has taken the lead on this subject. I would
like to recognize him for the purpose of asking his questions,
given that he must preside over the United States Senate at 11
o'clock.
The distinguished Senator from South Carolina, Senator
Graham.
Senator Graham. Thank you, Mr. Chairman. That kind of
introduction, the ``wisdom and wit'' meter is pretty low this
morning, but I'll try to rise to the occasion.
I appreciate that and I'm sorry to interrupt the opening
statements.
One thing I would like to talk about is, I think, as a
body, we're going to work through a military commission model
that we can be proud of that will hopefully use the UCMJ as a
model, and there will be substantial deviations at times to
meet the needs of the war on terror.
My concern is how Common Article 3 applies to terrorist
interrogations. I don't have a problem with teaching our
military members to treat every detainee in terms of prisoner
of war (POW) treatment standards, because that's easy for them
to understand. But once we do the interrogation of a high-value
target, I do have some concerns about how Common Article 3
might apply.
What is the norm? What is the norm, in the international
community, in terms of, let's say, Great Britain, France, and
Germany? Do they apply Common Article 3 interrogation standards
to the interrogation of terrorist suspects? Does anyone know?
Mr. Mernin. Senator, I don't know.
Senator Graham. I think it would be important for the
committee to understand what the norm is, because it's my
understanding that Israel, France, Germany, and Great Britain,
that when it comes to terrorist suspects being interrogated,
they don't torture them, but Common Article 3 is not the test,
either. So, I would like to know what the baseline,
internationally, is.
Now, when it comes to Senator Inhofe's concerns about us
criminalizing the war, every war crime involves criminal
activity. Is that correct? Does anyone disagree with that?
Ms. Massimino. No, sir.
Senator Graham. The criminal activity is a violation of the
law of armed conflict, which in and of itself is a series of
criminal laws, as well as treatment regimes, is that correct?
Mr. Fidell. That's not necessarily correct, Senator. You
could have a classic war, where there are acts of violence.
Senator Graham. Right.
Mr. Fidell. ``One breaks things and kills people.'' That's
the difference between being a lawful combatant and an unlawful
combatant.
Senator Graham. Right.
Mr. Fidell. So, if you had a lawful combatant, barring,
``war crimes,'' a certain measure of violence, things that in
normal society out on Constitution Avenue would be a crime,
become lawful.
Senator Graham. That's my point. War is inherently violent.
It's the taking of life. We don't prosecute soldiers involved
in war because they're fighting the enemy; we only prosecute
solders in wars or illegal combatants when they violate the law
of armed conflict. There's a lawful way to kill people, and
there is an unlawful way to engage in military actions. One of
those unlawful actions is to intentionally target and kill
civilians. Military commissions come from the UCMJ, and it says
they shall be governed by the law of armed conflict. So, I want
the American public to know that probably 90 percent of the
people who are enemy combatants will not be tried for war
crimes. We do not want to confuse enemy combatants and war
criminals. That is a huge problem that reoccurs over and over
again. You can be an enemy combatant and not be a war criminal.
A war crime is reserved for a very select class of people who
have gone outside the norms of combat. In the case of
Guantanamo Bay, I think there's less than 25 who are even
subject to being tried for war crimes. But once you make that
decision, does the panel agree, then it becomes criminal
activity, that criminal law is applied--the criminal law of
armed conflict?
Mr. Fidell. Yes.
Senator Graham. Yes.
Mr. Fidell. Your question, Senator, is that you're dealing
with unlawful combatants.
Senator Graham. Right.
Mr. Fidell. The answer is yes.
Senator Graham. Okay. So, this idea that we're
criminalizing the war is not true. What we're criminalizing,
which has always been a crime, is the violation of law of armed
conflict, and we're holding people accountable, and they can be
put to death. Is it not true, in that setting, where a military
commission is involved, that due process applies?
Mr. Fidell. I certainly think so, yes.
Senator Graham. Okay. That's what Hamdan is saying. So, we
need to come up with due-process rights consistent with
prosecuting criminal violations of the law of armed conflict.
We're not talking about trying to criminalize the war. They're
two different things.
Now, when it comes to coercion, is it not true that al
Qaeda is trained to allege coercion?
Mr. Fidell. It's certainly been said. I can't testify from
personal experience as to their training manual. But that's
certainly been repeatedly reported.
Senator Graham. Does anyone disagree with that? [No
response.]
Okay, it's a fact that our enemy is trained to allege
violations of law. They are trained to allege coercion. So,
would you agree with me that an accusation of coercion by a
defendant in a military commission cannot bring the trial to a
halt?
Mr. Fidell. Senator, that would be one of the many issues
that would come up. You might have an accused who would make an
allegation like that, just as in any criminal court in this
country, State or Federal. Somebody could come in and say, ``My
rights were trampled on,'' and then you'd have a little Article
39(a) session.
Senator Graham. Right.
Mr. Fidell. To use the court-martial terminology, you'd
have a motions session, witnesses would be called, and the
police or the interrogator would be called.
Senator Graham. You would get to the bottom of the
allegation, and you'd use some standard as to what would be
unlawful coercion. War, by its nature, is coercive. But we're
talking about coercive practices. It gets back to your
statement. I don't want my country to benefit from coercive
practice, from torture practices, but, by the same token, I
don't want to let all of the evidence stop or being inquired
into because someone alleges coercion. Under the DTA, we had a
provision that said if an allegation of coercion is made
regarding combat status, enemy combatant status, at the combat
status review tribunal, it will be given appropriate probative
value, it will be tested to see if it has any probative value.
Does anyone disagree with that standard?
Mr. Fidell. In the context of a Combatant Status Review
Tribunal, that's a different kettle of fish; that's not a
criminal proceeding, by any standard.
Senator Graham. Right.
Mr. Fidell. That is an administrative proceeding.
Senator Graham. Do you agree there needs to be a balancing
between the idea of a coercive environment and coercive
practices?
Mr. Fidell. Can you sharpen that question for me, Senator?
I am struggling with it.
Senator Graham. Basically the whole idea that you can't use
anything that's coerced. We start with the idea of torture.
That's what we all agree upon. No one should benefit from
tortured statements, because they're not reliable. Cruel,
inhumane treatment, that's something we don't want to benefit
from. But the point I'm trying to make is, this Congress needs
to come up with some standard that will allow evidence to come
into a criminal proceeding that would be from a coercive
environment, because war, in and of itself, is coercive.
Mr. Fidell. I'm not sure I can connect the dots between the
assertion that war itself is coercive, it's violent. Whether
that violence turns into coercion within the legal meaning for
example, as it's currently used in Article 31(d) of the UCMJ is
another matter. Congress has already spoken that we don't want
coerced testimony in a court-martial under the UCMJ. I can't
imagine that Congress would take a different position in a
military commission.
Senator Graham. The problem is, sir, that we're getting
people off battlefields from all over the world that will be in
the hands of other countries. We need to understand that
coercion in the war on terror, because of its international
scope. We are not talking about our own troops in our own
hands, we're talking about gathering information about alleged
war criminals from a variety of sources. I guess what I'm
suggesting to this committee and to this body is that we need
to have a rather sophisticated view of what coercion is, taking
off torture, taking off cruel, inhumane treatment, but
understanding that some degree of flexibility needs to be had
in the war on terror.
I would like to establish what the norm is when it comes to
terrorist suspects being interrogated by countries that we are
friendly to, like Germany, France, Great Britain, Spain, and
Israel. What kind of techniques do they use? Does it fall
within Common Article 3? If it doesn't, why not? Why is it
different? Is it something we should look at adopting?
[The information referred to follows:]
Other nations such as Great Britain, France, and Germany have not
applied the standards of Common Article 3 because they have not
detained terrorists in the context of an ``armed conflict'' triggering
the treaty obligation. Conflicts not between states are covered by the
laws of war to a lesser degree, as made more precise in the 1977
Protocols. Thus, for example, the campaign in Northern Ireland was not
armed conflict, even when carried out by British armed forces, given
the IRA's lack of any territorial base on British territory.
Senator Graham. So, this idea that Common Article 3 is the
norm when it comes to establishing interrogation of terrorist
suspects, I doubt if that is the case, in terms of the
international community. I would like to know more about that,
and if you could help us, we would appreciate it.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator Graham.
As you can see from that colloquy, Senators have a number
of questions they wish to ask. In order to accommodate two
panels, I'm going to respectfully request of the witnesses, in
their initial delivery, if they could put their opening
statement into the confines of about 7 minutes. If you need to
run over a minute or two, there's a reasonable generosity here
in the chair, but that way we can move through this and allow
Senators, many of whom have to come and go, to put the question
to this important panel. Thank you very much.
We'll now have Katherine Newell Bierman, Counterterrorism
Counsel, U.S. Program, Human Rights Watch. We welcome you.
STATEMENT OF KATHERINE NEWELL BIERMAN, COUNTERTERRORISM
COUNSEL, U.S. PROGRAM, HUMAN RIGHTS WATCH
Ms. Bierman. Thank you, Mr. Chairman. I believe I can do 7
minutes. I will refer to my written statement throughout, so
you can see what I've written there.
Senators, it is a great honor to be testifying before you
here today, and I echo the gratitude I share with my co-
panelists for your deliberation and your careful consideration
of these matters before us.
I'm not a military lawyer, but I am an attorney with
expertise on the laws of war and U.S. counterterrorism. I've
attended multiple military commission hearings at Guantanamo
Bay. I've had numerous formal and informal conversations with
military commission personnel, the prosecution, and the
defense. Some of them are here today, and I can guarantee you
they will tell me what they think of what I said when we're
done.
I am also a former U.S. military officer. I left the Air
Force as a captain in 1996. As a young officer, I was asked to
lead people much older and much more experienced than me, and
they taught me something that I have never forgotten. When
you're not sure what to do, stop, take a deep breath, and think
about your bottom line. Ask questions. If the answers don't fit
with the bottom line, ask more questions until the answers do.
Then you make it happen. Today, I will talk about bottom lines
and how to make it happen.
Mr. Chairman, the bottom line for me is this: the Supreme
Court's decision in Hamdan presents Congress and the
administration with an opportunity to start bringing accused
terrorists to justice in a way that will both protect America's
security and uphold its values. I hope that Congress seizes
this opportunity by reaffirming the United States' longstanding
commitment to Common Article 3 of the Geneva Conventions and
ensuring that trials of terrorist suspects captured on the
battlefield go forward in accordance with the standards of the
UCMJ. If Congress and the administration choose that course, it
would help to rebuild America's moral authority in the world,
reaffirm America's commitment to the rule of law, and reclaim
America's greatest tool in the war on terror: our integrity.
If, on the other hand, Congress and the administration try
to find a way around Hamdan by shirking the Geneva Conventions
or creating substandard tribunals, it is the tribunal system
and American values that will remain on trial, as they have
been for the past 4\1/2\ years, not the terrorists, who should
be on trial.
Al Qaeda is an irregular force that does not abide by the
rules of war, and it is not a signatory to the Geneva
Conventions. As such, when its members are captured on the
battlefield, they are not entitled to prisoner-of-war status.
There are 143 articles in the third Geneva Convention on POWs;
110 address the requirements for the treatment of POWs. That is
truly the gold standard. There's only one Common Article 3,
although it's repeated four times. Some say even that one may
not apply to al Qaeda.
Common Article 3 is a narrow rule with the broadest
application and establishes the barest minimum safeguards for
humane treatment and fair justice. It was established as a
minimum standard that would cover everyone involved in an armed
conflict, regardless of their status, regardless of their
behavior. It is specifically designed to apply to conflicts
between a state that is a party to the Conventions, like the
United States, and a nonstate force, like al Qaeda, that, by
definition, cannot be a signatory. It ensures that no one
caught up in an armed conflict is completely beyond the reach
of law. Common Article 3 is the bottom line.
Some have suggested that Common Article 3 somehow confuses
the U.S. military, but the Pentagon has been clear about the
meaning of Common Article 3 and its obligations for decades, as
you heard last week, from the JAGs. Deputy Secretary England
said in his memo last week that the military orders, policies,
directives, executive orders, and doctrine already comply with
Common Article 3. The humane-treatment standard required by
Common Article 3 is essentially the same standard that Congress
already mandated when it passed the McCain amendment in the DTA
last year. So, I don't understand how the administration can
claim the military is confused by Common Article 3. If our
troops are confused, it is because the administration decided
to ignore the conventions, not because the Supreme Court says
we must respect Geneva.
I would add, Mr. Chairman, that the United States
Constitution gives us a lot of words that are hard to define,
like ``due process.'' Americans believe in these principles
even though they feel mushy. We have worked out the meaning of
these terms over the past 200 years. We don't say, ``I can't
define due process, in 10 words; therefore, we're not going to
have any.'' If Congress thinks the troops need clarity, the
best thing you can do is to reaffirm that Common Article 3
applies.
Were Congress to step back from Common Article 3, it would
send a message that America's enemies would all too willingly
amplify: the United States affirmatively seeks to treat people
inhumanely, intends to try and execute people without fair
trials, and willingly defies its own allies and history to do
so.
Some have expressed concern that applying Common Article 3
to al Qaeda would leave American troops vulnerable to frivolous
prosecutions under the War Crimes Act. Mr. Chairman,
distinguished members, Human Rights Watch believes that the
administration encouraged reluctant interrogators to adopt
techniques that they knew were wrong by telling them that they
would not be prosecuted. I think this speaks for itself. The
truth is, no servicemember can be prosecuted for violations of
the War Crimes Act unless military prosecutors decide to bring
charges against them. Here's the bottom line. If we want an act
that was committed against an American to be a crime, it also
has to be a crime if it's committed by an American. I think
it's hard to disagree with that.
People captured on the battlefield and suspected of having
committed war crimes or other serious offenses should be
brought to justice. Common Article 3, like much of the laws of
war, is about good warfighting. The laws of war were not rooted
in humanitarian concerns; they were rooted in what made sense
on the battlefield, what was in the military's interest to
pursue. It's only recently in the history of the laws of war
that human rights became an overlay. Common Article 3 is good
warfighting, the military manuals that refer to this are in my
written testimony.
Military commissions that prosecute these persons must meet
international fair-trial standards. The rules and procedures
for the military commissions should be based on those provided
in general courts-martial. Every bogeyman raised by the
administration is answered in the existing rules: hearsay,
Miranda, classified evidence, chain of custody. Your JAGs have
been dealing with these in a military environment for decades.
The administration has some very clever civilian lawyers, but
their attempts to wing it have been a disaster. Let Congress
set the bottom line, and let the military lawyers make it
happen using what they know best. The bottom line? Any
departures from these standards must be exceptional, narrowly
tailored to meet the interest of justice, and uniformly
established before any proceedings begin, not just because
that's fair, but because it's common sense.
The bottom line on coercion: Congress cannot effectively
prohibit abusive interrogation techniques if rules for military
commissions do not explicitly and effectively keep evidence
obtained through those techniques out of judicial proceedings.
Anything less than this will cut the heart out of the DTA.
Upholding this rule provides the DTA with an enforcement
mechanism we can definitely live with. Any rules and procedures
must make such a prohibition on coerced evidence meaningful.
In my written statement, I touch upon how this works in the
military justice system, in stark comparison with the virtually
meaningless rules adopted by the failed military commissions.
What about hearsay evidence and Miranda warnings? Again,
the U.S. courts-martial system has rules and procedures to
address these concerns. It allows more evidence than has been
suggested. To say the military lawyers haven't figured out how
to deal with these challenges in the military environment, I
think, is insulting to them. The bottom line concerning hearsay
evidence: any rules or procedures that allow secondhand
evidence, hearsay, should not allow the Government to convict
people on the basis of secret interrogations without producing
the witness either in person, by closed-circuit television or
by deposition. The alternative is relying solely on an
interrogator to tell you he didn't torture a confession out of
someone, or relying upon one accused al Qaeda member to speak
the truth about another. Use the witness to test the stories.
The military knows how.
The bottom line in Miranda is this: no one should be forced
to testify against themselves or to confess guilt. As with
rules and procedures that give effect to the ban on abusive
interrogations, Congress should look to the rules already in
place, already tested, already used in training, and use the
U.S. military's justice system to its best advantage. If the
administration has a good reason to proceed differently, let
the administration make the case. But concerns about getting in
the evidence should not obscure what is most important here:
the bottom line.
I will add a bogeyman to this panoply of bogeymen that the
administration has put up. Here's my bogeyman, the civilian
trial lawyers, the Department of Justice (DOJ), saying, ``We
have this great evidence from Ramzi bin al-Shibh and Khalid
Sheikh Mohammed. Unfortunately, the only way to get it in is,
to admit that we actually are holding them someplace, and we've
tortured them. What kind of rules let us do that?'' That's my
bogeyman.
In closing, Senators, I want to see terrorists brought to
justice. I was in a room when accused al Qaeda propaganda
minister Ali Hamza al Bahlul called the proceedings
illegitimate. Of course he said that. That's not the issue.
That's not what's important about this. What killed me was the
knowledge that an objective person like myself had to agree
with him when he said that. Please make his statement untrue.
Please do what's necessary to set the bottom line where it
should be, and let's make it happen.
Thank you very much.
[The prepared statement of Ms. Bierman follows:]
Prepared Statement by Katherine Newell Bierman
Senators, it is a great honor to testify before you here today.
I am not a judge advocate, but I am an attorney with expertise on
the laws of war and U.S. counterterrorism law and policy and its
practical effects on this nation's ability to fight a truly horrible
enemy. I attended multiple military commission hearings at Guantanamo
Bay as a human rights observer, and have had numerous formal and
informal conversations with military commission officials, the
prosecution, and the defense, military and civilian.
I am also a former U.S. military officer. I left the Air Force as a
captain in 1996. As a young officer, I was asked to lead people much
older and more experienced than me. They taught me something I have
never forgotten: when you are not sure what to do, stop, take a deep
breath, and think about your bottom line. Ask questions--and if the
answer doesn't fit with the bottom line, you are asking the wrong
questions. Keep asking, get an answer that fits, and then make it
happen.
Today I will talk about the bottom line, and how to make it happen.
Mr. Chairman, for me, the bottom line is this: The Supreme Court's
decision in Hamdan presents Congress and the administration with an
opportunity--to start bringing accused terrorists to justice in a way
that will both protect America's security and uphold its values. I hope
that Congress seizes this opportunity, by reaffirming the United
States' longstanding commitment to Common Article 3 of the Geneva
Conventions, and ensuring that trials of terrorist suspects captured on
the battlefield go forward in accordance with the standards of the
Uniform Code of Military Justice (UCMJ), which have served this country
so well for so long. If Congress and the administration choose that
course, it will help to rebuild America's moral authority in the world,
reaffirm America's commitment to the rule of law, and reclaim America's
greatest tool in the war on terror: our integrity.
If, on the other hand, Congress and the administration try to find
a way around Hamdan, by shirking the Geneva Conventions or creating
substandard tribunals, the tribunal system will remain on trial,
instead of the terrorists. That would be a profoundly unfortunate
result, whether the goal is an effective fight against terrorism or
upholding the rule of law.
common article 3 of the geneva conventions applied to al qaeda
In Hamdan, the Supreme Court determined that Common Article 3 of
the Geneva Conventions (``Common Article 3'') applied to Mr. Hamdan as
a member of al Qaeda captured on the battlefield.\1\ The Court
determined the military commissions established by the President to try
Mr. Hamdan and other ``enemy combatants'' violated the requirements of
Common Article 3.
---------------------------------------------------------------------------
\1\ Hamdan v. Rumsfeld 548 U.S.--(2006).
---------------------------------------------------------------------------
In 2002, the administration had decided that no part of the Geneva
Conventions, including Common Article 3, would apply in a legally
binding way to the armed conflict with al Qaeda.\2\ Since the Hamdan
decision was announced, some have suggested that this ruling somehow
imposes a new or alien requirement on the U.S. military, and that it is
inappropriate to apply Common Article 3 to al Qaeda because it is not a
signatory to the Geneva Conventions and because its members defy the
laws of war and any fundamental regard for human rights.
---------------------------------------------------------------------------
\2\ George Bush. Memorandum on Humane Treatment of Taliban and al
Qaeda Detainees. February 7, 2002. Available at http://
www.justicescholars.org/pegc/archive/White--House/bush--memo--
20020207--ed.pdf.
---------------------------------------------------------------------------
This argument misrepresents the purpose and requirements of Common
Article 3. It is true that al Qaeda is an irregular force that does not
abide by the rules of war and is not a signatory to the Geneva
Conventions. As such, its members are not entitled to prisoner of war
status, or covered by many of the other provisions of the Third Geneva
Convention concerning prisoners of war.\3\
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\3\ Of 143 articles in the Third Geneva Convention, 110 address the
requirements for the treatment of prisoners of war. Geneva Convention
(III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,
[1955] 6 U.S.T. 3316, T.I.A.S. No. 3364 (entered into force with
respect to the USA February 2, 1956), also available at http://
www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/
6fef854a3517b75ac125641e004a9e68.
---------------------------------------------------------------------------
But the framers of the Geneva Conventions intended to establish a
minimal standard that would cover everyone involved in an armed
conflict, regardless of the nature of the conflict or an individual's
status or behavior. Common Article 3 is that standard. It is
specifically designed to apply to conflicts between a state that is
party to the Conventions (like the U.S.) and a non-state force, like al
Qaeda, that, by definition, could not be a signatory. It is a narrow
rule with the broadest application, and establishes the barest minimum
safeguards for humane treatment and fair justice. It ensures that no
one caught up in an armed conflict is completely beyond the reach of
law.
common article 3 of the geneva conventions and humane treatment
The administration also argues that the terms of Common Article 3
are too vague. In particular, proponents point to the prohibition on
``outrages against personal dignity,'' and say that the U.S. military
would be unable to apply Common Article 3 in practice.
But the Pentagon has been clear about the meaning of Common Article
3 and its obligations for decades, as the standards it embodies are
already part of U.S. military doctrine, policy, and training.\4\ The
U.S. military has long treated Common Article 3 and, in fact, the much
higher standard for the treatment of prisoners of war (POWs), as
standard operating procedure.\5\ This committee heard testimony last
week to this effect from Judge Advocates Generals (JAGs) from all the
armed services.\6\ Following the Hamdan decision, U.S. Deputy Secretary
of Defense Gordon England issued a memorandum to all Department of
Defense (DOD) units stating unequivocally that existing DOD orders,
policies, directives, execute orders, and doctrine already comply with
the standards of Common Article 3.\7\ I sincerely doubt that the Deputy
Secretary of Defense would make such a statement if the Pentagon was
unclear about the meaning of the terms of Common Article 3.
---------------------------------------------------------------------------
\4\ As was discussed in testimony last week before this committee:
Senator McCain. You agree with that so that--General Black, do you
believe that Deputy Secretary England did the right thing by, in light
of the Supreme Court decision, issuing a directive to DOD to adhere to
Common Article 3? In so doing, does that impair our ability to wage the
war on terror?
General Black: I do agree with the reinforcement of the message
that Common Article 3 is a baseline standard. I would say that at least
in the United States Army, and I'm confident in the other Services,
we've been training to that standard and living to that standard since
the beginning of our Army. We continue to do so.
Admiral McPherson (?): It created no new requirements for us. As
General Black had said, we have been training to and operating under
that standard for a long, long time.
Senator McCain. General?
General Rives (?): Yes, I agree.
Senator McCain. (Inaudible.)
General Sandkulher (?): My opinion is that's been the baseline for
a long time, sir.
General Romig (?): Yes, sir. That's the baseline. As General Black
said, we train to it. We always have. I'm just glad to see we're taking
credit for what we do now.
Admiral Hutson: I agree with what was said. But I'd point, I guess,
that the President on February 7, 2002, said that Common Article 3 did
not apply. So I think that this is--although we've been training to it
and so forth, I think this is an important, if only perhaps symbolic,
change of policy by the administration that I welcome.
Military Commissions in Light of the Supreme Court Decision in
Hamdan v. Rumsfeld Before the U.S. Senate Committee on Armed Services,
109th Cong. (2006).
\5\ In 1956, the United States Army codified in AFM 27-10 its
position that unwritten or customary law is binding on all nations and
that all U.S. forces must strictly observe it. U.S. Dep't of Army Field
Manual, Field Manual 27-10, The Law of Land Warfare, para.7(c) (18 July
1956). AFM 27-10 restated Common Article 3 and Third Geneva Convention
articles regarding trial of POWs. It also provided that ``in addition
to the `grave breaches' of the Geneva Conventions of 1949, the
following acts are representative of violations of the law of war (`war
crimes'): . . killing without trial spies or other persons who have
committed hostile acts.'' AFM 27-10 Sec 504(l).
\6\ Id.
\7\ ``It is my understanding that, aside from the military
commission procedures, existing DOD orders, policies, directives,
execute orders, and doctrine comply with the standards of Common
Article 3 and, therefore, actions by DOD personnel that comply with
such issuances would comply with the standards of Common Article 3.''
Memorandum from Gordon England to the Secretaries of the Military
Departments, July 7, 2006, available at: http://www.defenselink.mil/
pubs/pdfs/DepSecDef%20memo%20on%20common%20article%203.pdf.
---------------------------------------------------------------------------
The U.S. has been steadfast in applying the full protections of the
Geneva Conventions (i.e., far more than just Common Article 3) to enemy
fighters, even when not required to do so. U.S. adherence to the
highest standards has improved treatment of captured American
servicemembers, even when capturing governments claimed American
service men were unprotected by Geneva.
The U.S. even applied the full protections of the Geneva
Conventions to soldiers of governments who insisted the Conventions did
not bind them, and when the Conventions technically did not apply.
Examples include the conflict against the Viet-Cong in Vietnam, covert
operations against the Soviet Union in Afghanistan, and against forces
loyal to Somali warlords targeting international peacekeepers.\8\
---------------------------------------------------------------------------
\8\ Amicus Curiae Brief of Retired Generals and Admirals and Milt
Bearden in Support of Petitioner (Geneva Conventions--Judicial
Deference), 5-7, in Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006).
---------------------------------------------------------------------------
The current conflict is not the last Americans will ever fight. It
is only a matter of time before governments who might otherwise avoid
the appearance of illegality will exploit America's efforts to carve
out exceptions to the Geneva Conventions to justify poor treatment of
captured Americans.
Were Congress to repudiate in some way the application of Common
Article 3 to this or any conflict, it would be reversing decades of
U.S. law and policy and sending a message to U.S. troops that is
diametrically opposed to their training.
Congress has also set standards. The humane treatment standard
required by Common Article 3 is essentially the same standard that
Congress already mandated when it passed the McCain Amendment last
year, which stated as law, ``No individual in the custody or under the
physical control of the United States Government, regardless of
nationality or physical location, shall be subject to cruel, inhuman,
or degrading treatment or punishment.'' \9\
---------------------------------------------------------------------------
\9\ Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat.
2680 (2005).
---------------------------------------------------------------------------
For decades, the United States has accepted the substance of Common
Article 3 as both an obligation under treaty and customary
international law.\10\ If Congress were to step back from that
obligation, it would in effect be establishing a reservation to the
Geneva Conventions. No country in the world has ever before formally
renounced these obligations under Common Article 3. Such a step would
send a message that America's enemies would all-too willingly amplify:
the United States affirmatively seeks to treat people inhumanely (thus
effectively repudiating the McCain Amendment), intends to try and
execute people without fair trials, and willingly defies its own allies
and history to do so.
---------------------------------------------------------------------------
\10\ Geneva Convention (III) Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, T.I.A.S. No. 3364 (entered
into force with respect to the USA February 2, 1956), also available at
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/
6fef854a3517b75ac125641e004a9e68. U.S., Remarks of Michael J. Matheson,
Deputy Legal Adviser, U.S. Department of State, Sixth Annual American
Red Cross-Washington College of Law Conference on International
Humanitarian Law: A Workshop on Customary International Law and the
1977 Protocols Additional to the 1949 Geneva Conventions, American
Journal of International Law and Policy, Vol. 2, 1987, pp. 427-428
(iterating that Common Article 3 is customary international law).
---------------------------------------------------------------------------
Common Article 3 is not just a matter of human rights. Like many
laws of war, it is good warfighting. The U.S. military knows this well:
Insurgent captives are not guaranteed full protection under
the articles of the Geneva Conventions relative to the handling
of EPWs [enemy prisoners of war]. However, Article 3 of the
Conventions requires that insurgent captives be humanely
treated and forbids violence to life and person--in particular
murder, mutilation, cruel treatment, and torture. It further
forbids commitment of outrages upon personal dignity, taking of
hostages, passing of sentences, and execution without prior
judgment by a regularly constituted court.
Humane treatment of insurgent captives should extend far
beyond compliance with Article 3, if for no other reason than
to render them more susceptible to interrogation. The insurgent
is trained to expect brutal treatment upon capture. If,
contrary to what he has been led to believe, this mistreatment
is not forthcoming, he is apt to become psychologically
softened for interrogation. Furthermore, brutality by either
capturing troops or friendly interrogators will reduce
defections and serve as grist for the insurgent's propaganda
mill.\11\
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\11\ Department of the Army, Field Manual (FM) 34-52, Intelligence
Interrogation, May 8, 1987, Chapter 9.
common article 3 of the geneva conventions and war crimes
In the War Crimes Act of 1997, Congress made it a felony for any
U.S. military personnel or U.S. national to engage in conduct that
violates Common Article 3.\12\ Reports indicate that the administration
encouraged interrogators to adopt techniques that violated Common
Article 3 by telling them they would be immune from prosecution.\13\
---------------------------------------------------------------------------
\12\ 18 U.S.C. Sec. 2441(c) (2006). ``(c) Definition.--As used in
this section the term 'war crime' means any conduct--. . . (3) which
constitutes a violation of Common Article 3 of the international
conventions signed at Geneva, 12 August 1949, or any protocol to such
convention to which the United States is a party and which deals with
non-international armed conflict''.
\13\ John H. Richardson, ``Acts of Conscience,'' Esquire Magazine,
Vol. 146, Issue 2, August 2006.
---------------------------------------------------------------------------
In the wake of the Hamdan decision, some have expressed concern
that applying Common Article 3 to al Qaeda would leave American troops
vulnerable to frivolous prosecution.
To accept such a proposition, one would have to believe that the
likelihood of war crimes prosecutions by the United States has no
relation to the reality of current or historical practice. No soldier
can be prosecuted for violations of the War Crimes Act unless military
prosecutors decide to bring charges against him. The military justice
system is highly unlikely to take action against soldiers for trivial
or ambiguous offenses under this act, especially since it has never
done so even to prosecute even extremely serious crimes. To date, no
U.S. servicemember has ever been prosecuted for any violation of the
War Crimes Act, even in situations such as the war in Iraq, where
everyone agrees the Geneva Conventions fully apply. Much less for
violations of Common Article 3 occurring under less clear
circumstances.
The fact is, American military prosecutors, and not anyone else,
will make the decision to prosecute. It is hard to understand why we
would suddenly not trust the Executive to judge whether a U.S.
servicemember's suspected crime was sufficiently grave and
substantiated to merit prosecution.
The administration also argues that, because Common Article 3 is an
international standard interpreted by foreign courts, these courts will
somehow create frivolous standards that U.S. courts will use to
prosecute Americans. This proposition disregards the fact that foreign
judicial opinions are not binding on U.S. courts,\14\ and it is
extremely unlikely that a U.S. prosecutor would pursue a case or a U.S.
court would hold someone criminally responsible under a strained
interpretation of this standard.
---------------------------------------------------------------------------
\14\ Remarks of Justice Sandra Day O'Connor, Southern Center for
International Studies (Oct. 28, 2003), available at http://
www.southerncenter.org/OConnor--transcript.pdf.
---------------------------------------------------------------------------
The provision of Common Article 3 concerning ``outrages upon
personal dignity'' has always been interpreted as prohibiting very
serious abuses. According to the official commentary on the Geneva
Conventions, it was meant to prohibit acts ``which world opinion finds
particularly revolting--acts which were committed frequently during
World War II.'' \15\
---------------------------------------------------------------------------
\15\ Jean de Preux. III Geneva Convention: Relative to the
Treatment of Prisoners of War. In Jean S. Pictet, The Geneva
Conventions of 12 August 1949: Commentary, 39 (Geneva: International
Committee of the Red Cross, 1960).
---------------------------------------------------------------------------
Judicial opinions from international criminal tribunal opinions
reflect that level of severity. ``Outrages upon personal dignity'' as a
criminal act are usually a form of violence, determined in part by
severity and duration, and the intensity and duration of the resulting
physical or mental suffering. Typically a crime of an ``outrage against
human dignity'' is prosecuted alongside other egregious or violent acts
to cover behavior outrageous precisely because it offends all sense of
decency.\16\
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\16\ Knut Dormann, Louise Doswald-Beck (contributor), Robert Kolb
(contributor). Elements of War Crimes Under the Rome Statute of the
International Criminal Court: Sources and Commentary. (Cambridge, UK:
Cambridge University Press, 2003). Pp. 314-324.
---------------------------------------------------------------------------
For example, international criminal tribunal cases often prosecute
outrages against human dignity alongside charges such as murder, rape,
and torture--men who forced women to dance naked on tables before they
raped them,\17\ murderers who forced women to strip naked in public
before they were killed,\18\ or interrogators who rubbed a knife on a
woman's thigh and threatened to put it in her during torture.\19\
Justice demanded those prosecutions address such humiliating treatment
as separate outrages in their own right. While ``outrages'' do not have
to take place only in the context of rape or murder, they have
generally been prosecuted in the context of the most extreme situations
of abuse.
---------------------------------------------------------------------------
\17\ The Prosecutor v. Kunarac, Kovac and Vukovic, Judgment of
Trial Chamber II, ICTY, JL/P.I.S./566-e February 22, 2001.
\18\ Prosecutor v. Nyiramasuhuko, Indictment, Case No. ICTR-97-21-I
(Int'l Crim. Trib. for Rwanda May 26, 1997), case is ongoing.
\19\ The Prosecutor v. Anto Furundzija, Statement of the trial
chamber at the Judgment hearing, ICTY, Case No. IT-95-17/1-T December
10, 1998.
---------------------------------------------------------------------------
I would add, Mr. Chairman, that the U.S. Constitution gives us a
lot of words that are hard to define: for example, due process, free
speech, cruel and unusual punishment, unreasonable searches. Americans
believe in the principles embodied in these terms, even though their
precise legal meaning is not self-evident. We don't say, ``I can't
define due process in 10 words or less, so let's not have any.''
Americans have worked out the meaning of these terms over 200 years.
The precise meaning of the terms of the Geneva Conventions have also
become broadly understood in the 50 years since the Conventions were
drafted, and are well understood by the U.S. military. It was the
administration's decision to ignore the Conventions that confused our
troops, not the Supreme Court's decision to respect Geneva. If Congress
wants clarity, the best thing it can do is to reaffirm that Common
Article 3 applies.
Common Article 3 is actually much easier than you might think,
because it isn't the gold standard, like granting prisoner-of-war
rights. It's the barest minimum. The list of prohibited conduct is
short precisely because the drafters of the Geneva Conventions agreed
to apply it broadly.
Finally, Mr. Chairman, we should remember that the War Crimes Act
not only permits prosecution of American troops who commit such crimes
against others, but prosecution of foreign nationals who commit such
crimes against Americans.\20\ If we were to deny the application of
Common Article 3 to this conflict, we would deny ourselves one avenue
to try terrorists who perpetrate these offenses against Americans. If
we want an act that was committed against an American to be a crime, it
also has to be a crime when it is committed by an American. I think it
is hard to disagree with that bottom line.
---------------------------------------------------------------------------
\20\ 18 U.S.C. Sec. 2441 (2006).
(a) Offense.--Whoever, whether inside or outside the United States,
commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or imprisoned for life
or any term of years, or both, and if death results to the victim,
shall also be subject to the penalty of death.
(b) Circumstances.--The circumstances referred to in subsection (a)
are that the person committing such war crime or the victim of such war
crime is a member of the Armed Forces of the United States or a
national of the United States (as defined in section 101 of the
Immigration and Nationality Act). (emphasis added).
---------------------------------------------------------------------------
common article 3 and fair trials
People captured on the battlefield and suspected of having
committed war crimes or other serious offenses should be brought to
justice. Military commissions that prosecute these persons must meet
international fair trial standards. The rules and procedures for the
military commissions should be based upon those provided for general
courts-martial.\21\ Any departures from these standards must be
exceptional, narrowly tailored to meet the interests of justice, and
uniformly established before any proceedings begin. In particular, some
principles must not be compromised.
---------------------------------------------------------------------------
\21\ These rules and procedures are found in the Manual for Courts-
Martial (MCM), which incorporates the Rules for Courts-Martial (RCM),
the UCMJ, and the Military Rules of Evidence (MRE); and the body of
jurisprudence that has developed from these standards.
---------------------------------------------------------------------------
military commissions and coerced evidence
Through the adoption of the McCain Amendment to the Detainee
Treatment Act (DTA), Congress established a prohibition on cruel,
inhuman, or degrading treatment or punishment expressly to address
abusive interrogation techniques.\22\
---------------------------------------------------------------------------
\22\ Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat.
2680 (2005).
---------------------------------------------------------------------------
International and U.S. law have long recognized that one way to
curb official abuses in gathering information is to prohibit the use of
any evidence obtained through such actions in judicial proceedings.
Otherwise, the goal of obtaining a conviction becomes an incentive to
coerce confessions from suspects. This is the fundamental logic behind
international rules against prosecuting people with evidence obtained
through torture,\23\ and behind rules in U.S. courts against the use of
involuntary confessions or evidence obtained through other unlawful
means.\24\
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\23\ Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1465 U.N.T.S. 85 entered into force
with regards to the United States June 26, 1994. Article 15.
\24\ See, e.g. Mapp v. Ohio, 367 U.S. 643 (1961).
---------------------------------------------------------------------------
The bottom line: Congress cannot effectively prohibit abusive
interrogation techniques if rules for military commissions do not
explicitly and effectively keep evidence obtained through those
techniques out of subsequent legal proceedings. Evidence obtained
through interrogations that violate the DTA shouldn't be used in
military commission hearings. Anything less than this will cut the
heart out of the McCain amendment. Upholding this rule provides the
McCain amendment with an enforcement mechanism.
Furthermore, any rules and procedures must make such a prohibition
meaningful. For this reason, rather than starting from scratch,
Congress should ensure that military commissions use the rules and
procedures in the Manual for Courts-Martial and accompanying case law
necessary to prohibit the use of coerced evidence.
In the U.S. military justice system, an involuntary statement
obtained through the use of coercion generally may not be received in
evidence against an accused who made the statement. The accused must
move to suppress, or object to the evidence. If the military judge
thinks there is sufficient doubt about the statement, the prosecution--
the party with the best access to the story behind the statement--then
has the burden of establishing the admissibility of the evidence. The
military judge must find by a preponderance of the evidence that a
statement by the accused was made voluntarily before it may be received
into evidence. Statements of witnesses not present before the court are
presumptively inadmissible. The proponent must show the statement meets
limited exceptions to this rule designed to weed out questionable
evidence.
The failed military commission rules demonstrate a stark contrast.
On March 24, 2006, the General Counsel of the DOD adopted a change to
the military commission rules to prohibit the use of evidence obtained
through torture.\25\ However, the rule provided few safeguards to make
the prohibition meaningful. It failed to indicate whether the
commission on its own would make inquiries into the possible use of
torture and whether the U.S. Government must provide the information
the commission requests to determine whether a statement was extracted
through torture. It also failed to provide guidance on whether the
prosecution must make its own independent determination of whether
interrogation methods constituted torture, or whether it must accept
determinations made by others, e.g., those conducting the
interrogations, or senior Pentagon or Department of Justice
officials.\26\
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\25\ ``Military Commission Instruction No. 10, `Certain Evidentiary
Requirements,'' U.S. DOD, March 24, 2006, available at: http://
www.defenselink.mil/news/Mar2006/d20060327MCI10.pdf.
\26\ See, e.g., ``Q & A on Military Instruction Number 10: Will it
Keep Evidence Obtained through Torture or Cruel Treatment out of
Commission Trials?'' Human Rights Watch Question and Answer, March 31,
2006, available at: http://hrw.org/english/docs/2006/03/31/
usdom13109.htm.
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the use of hearsay evidence in military commissions
Opponents of the use of the U.S. military justice system's rules
concerning hearsay evidence say that such rules will stymie
prosecutions by limiting evidence essential to the prosecution of
accused terrorists. They suggest that rules regarding hearsay--which
admit ``second hand'' statements only in exceptional circumstances--
will require military commanders to be called in from warfighting
duties to testify at proceedings thousands of miles away; that key
witnesses in Afghanistan and elsewhere will refuse to travel to
testify; and that valuable and reliable evidence will be lost to
logistics.
In fact, the U.S. courts-martial system has rules and procedures to
address these concerns, and allows in more hearsay evidence that these
arguments suggest. Hearsay exceptions in U.S. courts-martial are
generally the same kinds used in U.S. Federal courts.\27\ Summaries of
statements made by witnesses in an excited state, at a time of high
stress, or just after perceiving an event are all admissible--and the
actual witnesses who made the statements need not be present. In all of
these cases, soldiers or arresting officers can simply describe what
witnesses on the scene told them; the person making the battlefield
utterance who wouldn't have to. In this sense, there is some modest
burden on the military, but it's worth it given the alternative, which
allows easy cover-up of coercive interrogation. In addition, there are
many other ways to adhere to the existing rules against hearsay without
imposing excessive travel burdens on witnesses who are located far
away. Witnesses can testify by closed circuit television, or their
depositions by both sides can be taped and played in court. Moreover,
the Military Rules of Evidence allow a declarant to be determined
``unavailable'' by reason of military necessity, opening the door to a
number of hearsay exceptions.
---------------------------------------------------------------------------
\27\ Article 36(a) of the UCMJ provides that trial procedures for
courts-martial, military commissions and other tribunals may be
prescribed by the President. It states that the regulations should as
far as practicable ``apply the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States District Courts''. The Manual for Courts-Martial (chapter
three: ``Military Rules of Evidence'') was issued to set out the
applicable rules of evidence for courts-martial, and was modeled on the
Federal Rules of Evidence: See U.S. v. Diaz, 59 M.J. 79, U.S. Armed
Forces, Sep 17, 2003; Hamdan v. Rumsfeld--S.Ct.--, 2006 WL 1764793;
Manual for Courts-Martial, Military Rules of Evidence, Analysis of the
Military Rules of Evidence, App. 22, M.R.E. 801.
---------------------------------------------------------------------------
The bottom line concerning hearsay evidence should be this: Any
rules or procedures that allow hearsay should not allow the government
to convict people on the basis of secret interrogations without
producing the witness, either in person, by closed-circuit television,
or by deposition. Our concern is that such interrogations are likely to
be described by only the interrogator, or possibly only the
interrogator's supervisor or colleague, or a government official who
spoke to an interrogator from a foreign country. This is fundamentally
unfair for two reasons.
First, if you are listening to a report from an interrogator about
a confession or admission, how do you test whether the statement was
coerced or even tortured out of the declarant? You are deciding whether
the interrogation used torture by asking the interrogator himself. If
the declarant also testifies, at least then the factfinder can decide
based on two sides to that story--the declarant and any interrogator
who might refute claims of mistreatment.
The second reason does not relate to statements by interrogators,
but statements made by one detainee implicating another. When the
statement is second hand, you can't directly test its credibility.
According to the administration, al Qaeda members are trained to lie
during interrogation. No one should be convicted on the basis of the
testimony of such allegedly unsavory characters without the opportunity
to question the witness directly. An interrogator's hearsay account of
what one detainee said about another deprives the suspect of this
essential confrontation right.
Some advocate adopting the evidentiary rules and procedures of
international criminal tribunals to accommodate hearsay evidence.
However, to be effective and fair, such a step would need to do more
than simply adopt an evidentiary standard. International criminal
tribunals use a panoply of evidentiary and other rules to ensure
fairness.
Generally, their rules allow the factfinder to admit any relevant
evidence that he or she deems to have probative value. But, there are
other rules that work with this standard. For example, the tribunal is
made up of legally trained judges who have experience making fine
distinctions on the reliability and value of different forms of
evidence that a jury or even a panel of non-lawyer officers simply
won't have. There is a clear prohibition on any evidence that is
obtained by a violation of internationally recognized human rights
norms if ``the violation casts substantial doubt on the reliability of
the evidence; or the admission of the evidence would be antithetical to
and would seriously damage the integrity of the proceedings.'' \28\ The
judges can decide this issue on their own; a party doesn't have to
raise the matter. The judges are instructed to look at ``indicia of [a
statement's] reliability'' such as its truthfulness and trustworthiness
along with whether or not the statement was voluntarily given.\29\ The
judges can decide to disregard testimony after it has been given rather
than keeping it out in the first place.\30\ In ruling on admissibility,
including the relevance or probative value of hearsay evidence, the
court must give reasons that are placed in the record of the
proceedings.\31\
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\28\ Rome Statute of the International Criminal Court, Article
69(7) (2002).
\29\ See., e.g., Prosecutor v. Tadic, Case No. IT-94-1, Decision on
the Defense Motion on Hearsay, (Trial Chamber, Int'l Crim. Trib. Former
Yugo., Aug. 5, 1996).
\30\ Trial Transcript for IT-94-1-T, Greve Testimony, at page 923,
line 8. Available at http://www.un.org/icty/transe1/960520ed.htm.
\31\ Id. 64(2).
---------------------------------------------------------------------------
Hearsay admissibility is one of the most misunderstood rules in the
U.S. system, with many careful and complex rules interwoven over time,
but the U.S. military judge advocate corps knows them well. If the
administration has a good reason to proceed differently, let the
administration make the case. But concerns about ``getting in the
evidence'' should not obscure the bottom line: Any rules or procedures
that allow hearsay should not allow the government to convict people on
the basis of secret interrogations without producing the witness. The
invitation to abuse is simply too great.
``miranda warnings'' and military commissions
The administration witnesses before the Judiciary Committee say
that using the U.S. military justice system's requirements for rights
warnings and exclusion of evidence would compromise military
operations--that U.S. troops in the field would face a choice between
reciting Miranda warnings as they conducted urban warfare, and thereby
potentially discouraging valuable intelligence information, or forgoing
prosecution of suspected terrorists.\32\
---------------------------------------------------------------------------
\32\ The courts-martial system requires rights warnings through
Article 31 of the UCMJ and the Miranda and Tempia line of cases.
---------------------------------------------------------------------------
But the rules and procedures for courts-martial have already dealt
with this issue. The rights warning is not required when someone is
interrogated for the purpose of gathering intelligence.\33\ Moreover,
the failure to give a rights warning does not keep evidence obtained
through an intelligence interrogation out of court.
---------------------------------------------------------------------------
\33\ A rights warning is only required when the questioning is of a
``law enforcement or disciplinary'' nature: U.S. v. Lonetree, 35 MJ
396, CMA 1992; cert denied 113 S.Ct 1813; U.S. v. Loukas, 29 M.J. 385,
387 (CMA,1990). See also: U.S. v. Moses, 45 M.J. 132 (U.S. Armed
Forces, 1996.); U.S. v. Cohen, 63 M.J. 45 (U.S. Armed Forces, 2006).
---------------------------------------------------------------------------
Only if an interrogation is begun for the purposes of law
enforcement or disciplinary proceedings is a rights warning required
for the resulting statements to be admissible. Whether the
interrogation is disciplinary or law enforcement is determined by
assessing all the facts and circumstances at the time of the interview
to determine whether the questioner was acting or could reasonably be
considered to be acting in an official law-enforcement or disciplinary
capacity.\34\
---------------------------------------------------------------------------
\34\ U.S. v. Cohen, 63 M.J. 45, 49 (U.S. Armed Forces, 2006).
---------------------------------------------------------------------------
Evidence obtained through intelligence interrogations is generally
admissible. The other side can challenge that evidence for a number of
reasons, the most relevant here being that it was coerced \35\ (or that
the interrogations were really for law enforcement). If the judge
decides evidence from intelligence interrogations cannot be admitted,
the next question is whether the evidence from the law enforcement
interrogation was tainted by a coerced intelligence interrogation.
Evidence from intelligence interrogations can in principle be given to
law enforcement interrogators, but if the evidence from an intelligence
interrogation was coerced, that may keep out evidence from both
interrogations.
---------------------------------------------------------------------------
\35\ Rule 304, Military Rules of Evidence.
---------------------------------------------------------------------------
This issue typically comes up when U.S. servicemembers are
questioned for intelligence-gathering purposes, which not unusual. For
example, when troops return to base after combat, they are often
debriefed by intelligence personnel--a form of intelligence
interrogation. Should the debriefer determine that a U.S. service man
may have been involved in a crime, the purpose of the questioning might
shift, with the purpose determining the admissibility of unwarned
statements that the service man might make. The classic legal opinion
on this rule is U.S. v. Lonetree, \36\ which dealt with a Marine Corps
embassy guard stationed in Moscow who was charged, among other things,
with committing espionage by passing confidential information to Soviet
agents. He was debriefed for intelligence purposes and only later
interrogated for prosecution. The court knew the difference, and
unwarned statements made during the course of the intelligence
debriefing came in.
---------------------------------------------------------------------------
\36\ 35 MJ 396, CMA 1992; cert denied 113 S.Ct 1813.
---------------------------------------------------------------------------
That's the rule now, Senators. Again, if the administration has a
good reason for changing the rules, let it make the case.
The bottom line regarding Miranda warnings is this: no one should
be forced to testify against themselves or to confess guilt. This is
another reason why statements which have been made as the result of
torture may not be used as evidence in any proceedings. The protections
in a general court-martial that prevent forced self-incrimination
require that people be warned of their right to remain silent and their
right to an attorney fairly early in a law enforcement or disciplinary
process. As with rules and procedures that give effect to the ban on
abusive interrogations, Congress should look to the rules already in
place, already tested, already used in training, and use the U.S.
military justice system to its best advantage.
In closing: Senators, I want to see terrorists brought to justice.
I was in the room when accused al Qaeda propaganda minister Ali Hamza
al Bahlul called the proceedings illegitimate. Of course he said that,
but that's not what's important. What killed me was the knowledge that
any objective observer would have to agree with him. Please do what's
necessary to set the bottom line where it should be, and let's make it
happen.
Chairman Warner. We thank you. A very powerful statement. I
must say, I'm greatly impressed, thus far, with the panel and
their commitment to try and bring into closer perspective the
problems that face Congress here. I thank you.
We'll now have Mr. Fidell, President of the National
Institute of Military Justice (NIMJ).
STATEMENT OF EUGENE R. FIDELL, PRESIDENT, NATIONAL INSTITUTE OF
MILITARY JUSTICE
Mr. Fidell. Thank you, Mr. Chairman, Senator Levin, members
of the committee.
Chairman Warner. Tell me a little bit about the history of
the Institute, just a word or two.
Mr. Fidell. With great pleasure.
The NIMJ was founded in 1991 by myself and a number of
other former military lawyers who felt there was a need for
some outside body of people who were familiar with the system,
who were essentially believers in the system, but who believed
that a purpose would be served by having an outside
organization monitoring developments, trying to make
suggestions from time to time, and trying to make the system as
good as it could be.
NIMJ is currently housed, Mr. Chairman, at Washington
College of Law, and at American University. We have two overall
objectives. One is to promote the fair administration of
justice in the armed services, and, second, to foster improved
public understanding of what used to be a fairly obscure area.
Now, of course, every American, and a lot of people around the
world, have become experts in it, by force of events.
Chairman Warner. Thank you very much.
Mr. Fidell. That's a little bit of the background.
The directors and advisors are typically former officers,
either career officers, up to and including brigadier general
in the Marine Corps, rear admiral in the U.S. Navy; others,
like myself, were relatively short-term military personnel. We
have an exception or two, including a person with no military
experience, but a former Federal prosecutor who is an expert in
constitutional and criminal law.
Chairman Warner. We thank you, sir. Now, please proceed.
Mr. Fidell. Thank you very much.
When I took off my uniform, 34 years ago, after 3 years, 7
months, and 8 days, little did I think that I would, this far
in the future, find myself testifying before the Senate Armed
Services Committee, much less testifying about military
commissions, which, in 1972, were viewed essentially as a
museum piece. Everybody knew the Quirin case, the German
saboteurs. But basically it was something you'd expect to find
in the legal section of the Smithsonian. Events, obviously,
have taken a different tack.
Mr. Chairman, we circulated a discussion draft on July 6
with our thoughts on what ought to be done in the wake of the
Hamdan decision. We don't believe that draft is the last word,
but we do think it's a sound starting point for your
consideration. The draft, which is essentially a quite
conservative document, reflects our respect for the basic
integrity of the UCMJ and also the traditional interplay
between the executive and legislative branches.
We believe that the highest priority for military justice,
what I'll call the classic military justice, dealing with good
order and discipline in the force, or the particular subset
that we're dealing with today, is the achievement of public
confidence in the administration of justice. That's not simply
another way of saying that we have 100 percent assurance, a
mathematical certainty, that every person who's charged is
going to be convicted. Rather, it's a shorthand way of
summarizing all of the deeply held values that you referred to
I believe or perhaps Senator Levin at the beginning, that we
believe in as a country.
It sounds like an obvious proposition, but it does bear
repeating, because, frankly, there have been times, recently,
when reviewing prior testimony taken here and in another body,
when it has seemed that there are those who believe that the
military commission system rules have to ensure convictions. I
believe they have to ensure fairness.
The basic approach of our discussion draft is to strongly
tilt military commissions in the direction of general courts-
martial, which are the felony-level military court. This is
consonant with the current Manual for Courts-Martial, which is
an Executive order promulgated by the President. The preamble
to the Manual for Courts-Martial states that military
commission procedures will be ``guided by'' the rules for
general courts-martial, while also recognizing the President's
power to depart from that model.
Our proposal seeks to cabin that power in several ways.
First, it requires that the President state with particularity,
the facts that he believes render it impracticable to follow
the general court-martial model on any particular point. This
is consistent or consonant with the decision of the Supreme
Court.
``With particularity'' is a phrase that only a lawyer could
love, but the words do have meaning. They send a message. They
mean that the President will not have satisfied the
requirements of the statute, as we envision it, if his
justification is simply vague generalities that do not
logically lead to the conclusion that a particular general
court-martial rule or practice is impracticable. That, in fact,
was a vice in the President's military order of November 13,
2001, which I strongly recommend people reread. The President
made certain findings, but the findings did not logically lead
to the conclusion that he drew; namely, that it was
impracticable to follow the usual norm. In fact, the usual
norm, I might add, under Article 36(a) of the UCMJ now, is to
follow Federal District Court practice. So, we're already
moving one step away from the norm that the Congress put in
place when it passed the UCMJ in 1950.
In addition, our proposal doesn't contemplate a blanket
presidential determination that general court-martial rules are
impracticable across the board. You can't simply wave the wand
over it and say ``Impracticable. Can't do it. Now I'll start,
give me a clean yellow pad.'' That's not our concept. The
President would have to particularize the respects in which the
general court-martial model cannot work in a military
commission setting.
Our proposal also requires that Congress be notified of any
determination of impracticability. That used to be a reporting
requirement in Article 36(b) of the UCMJ. For better or worse
there is no point in crying over spilled milk but Congress
repealed the reporting requirement in 1990 on the theory that
it was a paperwork reduction measure. That, I think, was
unwise, and I hope that Congress will revisit that issue and
require all changes to the Manual for Courts-Martial, not only
those that relate to military commissions, but also those that
relate to good order and discipline, courts-martial per se, be
reported to you.
We believe that a revived reporting requirement should be a
reality, and that Congress should stand ready to review
impracticability determinations and intervene, as necessary,
with legislation, if that's what it takes.
NIMJ's proposal provides that the President's determination
that some rule applicable to general courts-martial is
impracticable in the military commission context is subject to
judicial review, and we've particularized what kind of judicial
review. We've proposed two standards. They're familiar
standards under the Administrative Procedure Act. Is it an
abuse of discretion, or is it contrary to law? These are very
real requirements. They're familiar to practitioners of
administrative law. They're familiar to Federal judges. They
are not window dressing. Whether any particular
impracticability determination violates either of those tests
would be litigable in the course of review of a military
commission case. By that I mean by the United States Court of
Appeals for the Armed Forces.
The NIMJ proposal singles out one part of the UCMJ as
inapplicable to military commissions. That's Article 32. That
is the provision that prescribes a pretrial investigation as a
precondition to any general court-martial.
We recognize that Congress may conclude that other parts of
the statute may also be dispensed with. For example, Congress
might conclude that the right to select your own uniformed
lawyer, the so-called individual military counsel, or IMC under
Article 38(b)(3)(B) could be viewed as a luxury that can wisely
be dispensed with in the context of military commissions.
Similarly, Congress might conclude that the first stage of
appellate review--namely, review by the Army, Navy, Air Force,
or Coast Guard Court of Criminal Appeals could be dispensed
with. Instead of having the kind of layer cake that we
currently have for general court-martial, you would go directly
from the military commission up to the U.S. Court of Appeals
for the Armed Forces over on E Street.
If Congress did that, I think that you would have to make
some adjustments to the Court of Appeals' jurisdiction to make
sure that they could review a sentence appropriateness, as well
as to determine whether it's legal. There are certain
limitations currently in Article 67 of the UCMJ that you might
have to expand if you dispensed with the first tier of
appellate review. I'd be happy to go over it. I don't want to
get too much into the details now.
Now, this is important. Just as there are some court-
martial-related provisions of the UCMJ and the Manual for
Courts-Martial that Congress might be disposed to affirmatively
direct not be applied to military commissions and then, of
course, you'd never have to have an impracticability
determination by the President. The committee might also
conclude that there are some provisions that are so critical to
public confidence in the administration of justice that they
ought to be placed beyond the President's power to make
exceptions on grounds of impracticability. For example, should
there be an explicit ban on the use of coerced testimony, as
Senator Graham and I were having a colloquy on before? There is
an explicit ban currently in Article 31(d) for courts-martial.
Should the right to see all the evidence the Government intends
to put before the trier of fact be immortalized in the statute,
or the right of self-representation, or the right to attend
every session? We didn't include such a provision, a kind of
military-commission due-process floor, in our discussion draft.
However, I have to say that because some of the testimony that
has been presented on behalf of the administration in the time
since July 6 has seemed to reflect a measure of intransigence,
the committee may not be disposed to leave the question of
departures from the court-martial norm as much in the
President's hands as our original proposal does, even with the
substantial procedural protections we've recommended. The
committee's in a better position than we are to make that
determination, although I'm confident that it's going to have
suggestions from a variety of sources. But it does seem fair to
state that, to this extent, at least, the situation is somewhat
different from what it was at the time that we framed our
proposal.
The final comment that I'd like to make responds to one of
the remarks that a fellow panelist made, and I think it's
clearly on people's minds, having to do with Common Article 3.
We haven't gotten into Common Article 3 in our presentation,
but the suggestion that the terms of Common Article 3, which
people should, it's always good to look back at the statute;
so, too, it's always good to look back at the Geneva
Conventions and see actually what it says. The suggestion that
these terms are too amorphous to form a basis for conduct by
our personnel, because that is the anxiety that people have
expressed, I think, has to be taken with a grain of salt. Let
me give the specifics why.
First of all, we have a very intelligent and well-trained
and educated military force--better, stronger, smarter, better-
read than probably at any time in our history. We currently
impose on our military force a variety of criminally punishable
prohibitions. For example, Article 88 of the UCMJ, which
applies only to commissioned officers, punishes military
officers if they speak contemptuously of the President, certain
other high officials, and this body. Well, what is
``contemptuous''? Is that a term that is too vague? Our legal
system doesn't think so, and hasn't, for many, many decades.
Our UCMJ prohibits, under criminal penalty, dereliction of
duty. I'm referring to Article 92, paren 3. Is ``dereliction of
duty'' any vaguer or more amorphous than the kinds of
prohibitions that are found in Common Article 3?
Article 93 is particularly pertinent to this conversation.
Article 93 is the punitive article dealing with cruelty and
maltreatment. It provides any person subject to this chapter,
which is to say our personnel, who is guilty of cruelty toward,
or oppression or maltreatment of, any person subject to his
orders shall be punished as a court-martial may direct. The
Congress of the United States and the President, in approving
the UCMJ and in promulgating the manual, have felt that that is
a workable, comprehensible prohibition.
Article 133 prohibits, under penalty of criminal sanction,
conduct unbecoming an officer and a gentleman. Is that too
vague?
Article 134, which applies to every person in uniform,
prohibits conduct that is prejudicial to good order and
discipline. Is that too vague?
My point, obviously, is that before anyone leaps on the
bandwagon that Common Article 3 lacks the precision that we
associate with criminal sanctions, a proposition that all of us
obviously respect, I think some very careful thought should be
given to the matter.
Mr. Chairman, it is a privilege to have been able to speak
to you this morning.
[The prepared statement of Mr. Fidell follows:]
Prepared Statement by Eugene R. Fidell
Mr. Chairman, Senator Levin, and members of the committee: Thank
you for affording the National Institute of Military Justice (NIMJ) an
opportumty to testify this morning on the important subject of military
commissions. I have a few points I would like to make in these opening
remarks, but I will keep it brief in. order to maximize the time
available for questions.
First, a word about NIMJ. NIMJ was founded in 1991. Our directors
and advisors include professors of law at several nationally-known law
schools as well as private practitioners. All but one--a former Federal
prosecutor--has served on Active-Duty, up to and including brigadier
general and rear admiral. We have two overall objectives: to foster the
fair administration of justice in the armed services, and to improve
public understanding of military justice. NIMJ circulated a discussion
draft on July 6, 2006.
We do not feel that that draft is the last word, but we think it is
a sound starting point for your consideration. The draft reflects our
respect for the basic integrity of the Uniform Code of Military Justice
(UCMJ) and the traditional interplay of the executive and legislative
branch's shared responsibility for military matters.
NIMJ believes that the highest priority for military justice--
either the subset that concerns good order and discipline within the
armed services or the other subset with which we are dealing today that
concerns how we prosecute crimes by an adversary--is the achievement of
public confidence in the administration of justice. ``Public confidence
in the administration of justice'' is not another way of saying we have
100 percent assurance--mathematical certainty--that every person who is
charged will be convicted. Rather, it is a shorthand way of summarizing
all of those deeply held values--values that reflect the commitment of
the generation of the Founders to due process of law and fundamental
fairness. This sounds like an obvious proposition, but it bears
repeating because there have been times, reviewing prior testimony
taken here and elsewhere, when it has seemed that there are those who
believe the military commission system rules must ensure convictions. I
believe they must ensure fairness. If that means some who are guilty
may not ultimately be convicted, that is the price we pay for having a
legal system.
The basic approach of NIMJ's discussion draft is to strongly tilt
military commissions in the direction of general courts-martial, our
felony-level military court. This is consonant with the current Manual
for Courts-Martial, which provides that military commission procedures
will be ``guided by'' the rules for general courts-martial, while also
recognizing the President's power to depart from that model. Our
proposal seeks to cabin that power in several ways.
First, it requires that the President state with particularity
those facts that render it impracticable to follow the general court-
martial model on any particular point. This is consonant with the
decision of the Supreme Court in Hamdan. ``With particularity'' is a
phrase only a lawyer could love. But those words do have meaning. They
mean the President will not have satisfied the requirement of the
statute if his justification is filled with vague generalities that do
not logically lead to the conclusion of impracticability. That was a
vice in the President's Military Order of November 13, 2001, which made
findings that were nebulous and disconnected from the order's wholesale
deviation from Federal district court practice (which is the overall
default model under Article 36 of the UCMJ).
Moreover, the proposal does not contemplate a blanket presidential
determination that general court-martial rules are impracticable
across-the-board. These determinations must address specific
provisions.
Second, our proposal requires that Congress be notified of any
determination of impracticability. There used to be a reporting
requirement for changes to the Manual for Courts-Martial, but it was a
dead letter. NIMJ believes this new, revived reporting requirement
should be more of a reality, and that Congress should stand ready to
review impracticability determinations and intervene as necessary with
legislation.
Third, NIMJ's proposal provides that the President's determination
that some rule applicable to general courts-martial is impracticable in
the military commission context is subject to judicial review for abuse
of discretion or on the ground that it is contrary to law. These are
real requirements, familiar to practitioners of administrative law as
well as to Federal judges. They are not window-dressing. Whether any
particular impracticability determination violates either of those
tests would be litigable in the course of direct review of any military
commission conviction.
The NIMJ proposal singles out one part of the UCMJ as inapplicable
to military commissions. That is Article 32, which deals with the
pretrial investigation that is a precondition for a general court-
martial. We recognize that Congress may conclude that other parts of
the statute may similarly be dispensed with. For example, Congress
might conclude that the right to individual military counsel-the right
under Article 38(b)(3)(B) to select your own uniformed defense
counsel--is part of the deluxe version of military justice that need
not be extended to enemy combatants in the context of a military
commission. Similarly, Congress might conclude that the fIrst stage of
appellate review review in a service court of criminal appeals--is
inessential in military commission cases, although if it did so, I
would recommend giving the United States Court of Appeals for the Armed
Forces authority to review military commission findings and sentences
on the same broad grounds currently applicable to court of criminal
appeals review of courts-martial. This would require an amendment to
Article 67.
Just as there are some court-martial-related provisions of the UCMJ
and the Manual for Courts-Martial that Congress might be disposed to
affirmatively direct not be applied to military commissions (thus
rendering an impracticability determination unnecessary), the committee
might also conclude that some provisions are so critical to public
confidence in the administration of justice that they should be placed
beyond the President's power to make exceptions on grounds of
impracticability. For example, should there be an explicit ban on the
use of coerced testimony in military commissions (see Article 31(d),
UCMJ), or should the right to see all evidence the government seeks to
put before the trier of fact, or the right of self representation or
the right to attend all sessions be stated in so many words?
NIMJ did not include such a provision--a kind of military
commission due process floor--in our discussion draft. However, some of
the testimony that has been presented on behalf of the administration
has seemed to reflect such intransigence that the committee may not be
disposed to leave the question of departures from the courts-martial
norm as much in the President's hands as our proposal does, even with
the substantial procedural protections we have recommended. The
committee is in a better position than we are to make that
determination, but it does seem fair to state that to this extent the
situation is somewhat different from what it was at the time we framed
our proposal.
My final remark has to do with the process by which determinations
of impracticability are arrived at. I will leave it to others to
discuss how the Defense Department conducts its internal deliberations,
but I do believe public confidence in the end product would be directly
served if any proposed departures from the general court"martial norm
(and the supporting detailed justification) were made available in
draft so the public can comment on them. The Department already does
this when it recommends changes in the Manual for Courts-Martial, see
DOD Directive 5500.17, MCM (2005 ed.), App. 26, at A26-8 (\ E2.4), and
its failure (with limited exceptions) to use notice-and-comment
procedures when promulgating military commission rules has been a
continuing disappointment. See Peter Raven-Hansen, Detaining Combatants
by Law or By Order? The Rule of Lawmaking in the War on Terrorists, 64
La. L. Rev. 831 (2004); Eugene R. Fidell, Military Commissions and
Administrative Law, 6 Green Bag 2d 379 (2003).
NIMJ appreciates the opportunity to participate in this hearing. I
will be happy to respond to questions and to work with the committee as
consideration of these important matters continues.
Chairman Warner. We thank you for another series of
excellent presentations.
At this time, we've been joined by Senator Saxby Chambliss.
Thank you, Senator, for joining us. Senator Cornyn must depart.
We are following the rule that as Senators come, they may ask
their questions, Senator Chambliss and Senator Cornyn, would
you like to ask your questions?
Senator Cornyn. I would. Thank you, Mr. Chairman, for
letting me do so at this time.
Thanks to each of you for being here and sharing your
expertise with us.
I recognize that some of you would advise against this, but
let me just ask you, as a matter of Congress's authority--I
read the Hamdan decision as saying that the Congress could, if
it wished, ratify Military Order 1 and essentially address the
authority concerns. The lack of participation by Congress, when
it comes to creating the military commissions, and the conflict
with the UCMJ, which Congress is also responsible for writing,
which it could amend, as well. Assuming that's correct, I would
like to hear from the witnesses what additional rights, what
additional privileges, what additional guarantees, other than
those already contained in Military Order 1, do you think are
appropriate for unlawful combatants, like al Qaeda?
Mr. Fidell. I'll keep talking if I have to.
Senator Cornyn. I want you to be specific here, if you can,
because we're going to have to address this with some
specificity.
Chairman Warner. Let's make it clear, Senator, that your
question is directed to the entire panel, and anyone who so
desires to participate may do so.
Senator Cornyn. That's correct.
Senator Levin. Senator Cornyn, I'm wondering if I could
just ask you if you are referring to those who are being
charged with crimes so that we could keep our record clear.
Senator Cornyn. I'm asking if Congress saw fit to ratify
Military Order 1 in response to the Hamdan decision, what, if
any, additional rights, privileges, would you recommend that we
provide for unlawful combatants, like al Qaeda, other than
those presently included in Military Order 1, if you have any.
If you don't have any, I'd like to know that, as well.
Mr. Mernin. Senator, if I may, I could offer you some
examples without purporting to give you an exhaustive list. But
certainly with respect to rules of evidence, the Association
would have no objection, in principle, to permitting more
flexible rules of evidence, consistent with battlefield
conditions and international standards, as compared to a strict
UCMJ courts-martial recitation. But much more specificity is
necessary than this wide-open concept of ``all evidence of
probative value.'' It should go without saying that the
standard used--it should be easily understood and applied by
the participants in the military commission process, that it
serve the interests of justice, that it suggest that we want to
adhere, as closely as possible, to the existing standards. The
accused must have access, in some form, to evidence supporting
the charges against him.
Senator Cornyn. I'm sorry, what existing standard are you
referring to?
Mr. Mernin. I would say the existing standard of the UCMJ
and the Manual for Courts-Martial.
Senator Cornyn. Oh, so you're starting from an opposite
perspective than what my question contemplated. I was asking,
assuming we start from Military Order 1, how would you build
out, or up, and expand the rights provided to unlawful
combatants, other than those included there, not how would we
carve out provisions in the UCMJ?
Mr. Mernin. I understand your complaint about the way I
prefaced my answer.
Senator Cornyn. Excuse me. It wasn't a complaint. I am
trying to just clarify.
Mr. Mernin. I was just trying to set up, really, what I
would guess is a list. The accused ought to have access to
evidence supporting the charges against him that's offered to
the court or the commission; and civilian defense counsel, with
the opportunity to obtain a security clearance, should have
access to evidence admitted against the accused, and all
potentially exculpatory evidence. Those are not provided for in
the existing commission. There's a procedure in our Federal
courts that allows for the redaction, for security purposes, of
evidence. Everyone who needs to see the redacted evidence gets
to see it. The court sees the same redacted evidence as the
defendant. Evidentiary disputes would need to be ruled on by
the presiding legal judge before the evidence was made
available to the members of the commission.
With respect to appeal, I would like to see the Court of
Appeals for the Armed Forces, along the lines, perhaps, of what
Mr. Fidell discussed, involved in hearing appeals from the
military commissions.
Senator Cornyn. I have about 2 minutes remaining of my
time, and I would ask you, please, to supplement your answer in
writing, if you could, because I really do want to know.
Mr. Mernin. Yes, sir.
[The information referred to follows:]
The Association endorses the use of the Uniform Code of Military
Justice and the Manual for Courts Martial as the starting points of any
legislation establishing commissions. Accepting Senator Cornyn's
premise that is, Congress were to ratify Military Order 1, we refer to
the detailed testimony of all members of the panel as to specific due
process and fair trial concerns which ought to be addressed in any
commissions which are adopted.
Senator Cornyn. But let me ask Dr. Carafano. The DOD has
looked at the UCMJ as the starting point, and tried to evaluate
how many revisions or amendments would have to be made to the
UCMJ in order to make it appropriate for the military
commission of an unlawful combatant to which the Geneva
Conventions, broadly speaking, do not apply. A preliminary
assessment is that 110 rules for court-martial would have to be
changed, 73 rules of evidence, and 145 to 150 UCMJ articles.
Without asking you to vouch for those particular figures, I
know you believe that the UCMJ is not an appropriate starting
point for our labors here, and would you please explain why?
Dr. Carafano. I could certainly understand why they would
reach that conclusion. Obviously, the Government always has a
dual responsibility, to provide security for the individual and
to provide security for the state. Any legal system that you
devise has to measure both those. Most legal systems,
particularly the UCMJ, start with the notion that they've been
created to look after the rights of the individual, and then
national-security matters and military necessity are then
layered over that. You could argue the UCMJ is actually a
better legal system than many states in the world have in their
regular judicial codes.
When you begin with the premise that you're in a war, and
national security concerns are the start point of your concern,
and then you want to add in what appropriate protections there
are to make sure there's legitimate due process and you're in
compliance with Common Article 3, you're obviously going to
have enormous difficulties taking a system which was designed
to do exactly the opposite of what you're trying to do, which
is to make sure national security is taken care of first. So, I
could understand that it would be a very complicated and
difficult process.
Senator Cornyn. Let me, if I may, ask just one concluding
question.
Chairman Warner. Senator, feel free to take a minute or
two. Yes, this is a very important colloquy.
Our distinguished colleague comes from the bar. He had a
very distinguished career in his State, and now he's on the
Judiciary Committee, which also is looking at this issue.
So, therefore, we value your contribution. Take such time
as you need.
Senator Cornyn. Mr. Chairman, it's the State Bar of Texas,
not just any bar. [Laughter.]
Chairman Warner. Did you not join the Bar of the Supreme
Court?
Senator Cornyn. I did as well.
Chairman Warner. Well, then, you did get out of Texas and
recognize some other institutions. [Laughter.]
Senator Cornyn. Thank you.
Chairman Warner. Yes.
Senator Cornyn. Thank you for that point. It's entirely
correct.
Now, clearly, no one is suggesting that these detainees,
unlawful combatants, are entitled to anything less than humane
treatment. But in 1970 President Reagan, I know, at one point,
when the 1977 Protocol 1 was proposed that would have extended
full Geneva protections in all respects to terrorists, rejected
that adoption of the Geneva Convention, arguing that it would
be the antithesis of humane and civilized outcome, because it
would have actually encouraged more terrorism. In other words,
the principle of reciprocity under the Geneva Conventions seems
to me to be the most important one. If we treat their POWs in a
certain way, they're more likely to treat our POWs in a certain
way. But in the absence of the passage of the 1977 Protocol 1,
which would have extended POW rights to terrorists, the way I
read the Court's opinion is that we have to provide a regularly
constituted court, rather than specify the particular
procedures that needed to apply, other than they should afford
the judicial guarantees that are recognized as indispensable to
civilized people.
With that sort of predicate, let me just express the same
concern that Senator Graham expressed. I know your focus has
been, and it's been quite appropriate, on what rights and
privileges are accorded to an unlawful combatant in a military
commission. But there's also the essential concern of what
impediments might we inadvertently create to our ability to
gain actionable intelligence that will prevent, detect, and
deter terrorist attacks or provide actionable intelligence that
will save coalition lives on the battlefield.
That's my last question. I'd be glad to hear any comments.
Mr. Fidell. I can comment briefly. I was a prosecutor as
well as a defense counsel when I was in the Service. There are
times when Government has to make some hard choices. For
example, when granting immunity, I think you were the attorney
general at one time, am I correct on that? So there are times
when a prosecutor has to make some hard choices. There are
times when the Government may be in a position to have to make
choices, for example, between using somebody in custody as an
intelligence source, as opposed to a potential defendant.
That's at least the beginning, Senator. The current environment
that we're talking about is not, I think, immune to that kind
of analysis. There are simply going to be situations where if
you need to do things for the purpose of gathering
intelligence, that may impact on your ability to bring down the
legal system on that particular individual.
Dr. Carafano. I would just like to return to your point,
because I think it's germane to how we interpret Common Article
3. I think what we have to realize is that Common Article 3 was
framed intentionally the way it was. It wasn't because they
didn't have a good editor and they were vague and evasive. They
framed that because they realized that in the application of
war, you have different countries, different legal systems,
different requirements, that it had to be intentionally broad
so states had the flexibility to implement judicial proceeding
in the manner in which suited them, both to meet both their
national security interests and the interests of the rule of
law. That's why I think conceptually something like a military
commission was written that way so things like military
commissions would be applicable.
Senator Cornyn. Thank you, Mr. Chairman.
Senator Levin. Mr. Chairman?
Chairman Warner. Yes.
Senator Levin. I would have a request. Senator Cornyn has
raised a very, very significant point which I think would be
helpful for us. Apparently, the DOD has identified and I forgot
the exact numbers, John, but it was something like 171 changes
that need to be made in the articles to bring it to the
commission procedures.
Senator Cornyn. Mr. Dell'Orto, in response to Senator
Levin's question, testified before the House Armed Services
Committee. I asked this general question when the JAGs were
here. But the numbers were a preliminary assessment. One
hundred ten rules for court-martial would have to be changed,
73 rules of evidence, and 145 to 150 UCMJ articles.
Senator Levin. That is a very valuable effort on the part
of the DOD. I would ask the chairman if we could get the list
from the DOD of those items, because that would make an
extremely valuable checklist for Congress to look at. I just
checked with staff and I don't believe we have those three
lists, I guess it would amount to. I'm wondering, Mr. Chairman,
could we ask the DOD for those three lists.
Chairman Warner. Unquestionably, we'll do that.
Could you leave a copy of that piece of paper with us
today? You have referred to it twice now. It's very helpful.
Mr. Fidell. Mr. Chairman?
Chairman Warner. Yes.
Mr. Fidell. Senator Levin's question, building on Senator
Cornyn's comment, reminds me that there is another document
that may also be helpful to the committee. It is my
understanding that the DOD, some time ago, prepared a Manual
for Military Commissions.
Chairman Warner. Have they released it?
Mr. Fidell. No, Mr. Chairman, as far as I know that has not
been released.
Chairman Warner. So, it is in existence?
Mr. Fidell. I believe it is in existence.
Senator Levin. A draft manual?
Mr. Fidell. Sir?
Senator Levin. A draft manual or what?
Mr. Fidell. A manual for military commissions.
Senator Levin. Was it adopted?
Mr. Fidell. Not that I know of.
Senator Levin. But it was in draft form or something?
Mr. Fidell. That's what I imagine, Senator Levin.
Chairman Warner. We'll probe that.
Mr. Fidell. If I were a member of the committee, I would
certainly be interested in seeing that.
Chairman Warner. That is a very helpful reference point for
us. We should look at it. I'm sure that they would share with
us their preliminary work on the commission structure which
they envisioned.
All right. Senator Chambliss, do you wish to ask your
questions at this point time?
Senator Chambliss. Thank you, Mr. Chairman. I just have a
couple of questions.
Chairman Warner. Yes.
Senator Dayton, if you so desire to ask some questions, at
the appropriate time, we'll recognize you after Senator
Chambliss.
Senator Dayton. I'll have to find somewhere to leave to so
that I can ask my questions.
Chairman Warner. Good. Well, that's all right. Senator
Levin and I are going to, of course, stay throughout the
panels, but go ahead.
Senator Chambliss. Thank you, Mr. Chairman. Let me thank
our witnesses for being here today.
We had a very interesting hearing last week on this same
subject, as I think all of you know, and very distinguished
panelists, who come from primarily military backgrounds, that
testified. In that hearing, we start from a basic premise, not
one that I necessarily would hope we would have to start with
but, as a lawyer, I believe in basic rights of all criminal
defendants, irrespective of where they come from. The fact here
is that even though we know how our prisoners are treated once
they're captured, there is no rule of law that governs them
other than to mutilate, behead, and torture them in every way
possible by the enemy combatants that we face today, it's
incumbent upon us to set forth certain standards that obviously
comply with our rules and our laws. We have to treat the enemy
in a much more humane way than, frankly, our soldiers are
treated.
That having been said, there is going to be a fundamental
issue for this committee to decide as to which road we go down.
Do we look at taking our current criminal justice system and
figuring out some way to make this particular type of situation
mesh with it, or do we look to the military side? I think the
military side is obviously more preferable. Once you get there,
as some of you have already delineated, there are a couple of
different paths down which we might go. One is taking the UCMJ
and trying to determine whether or not we can use it as a basis
and bring in some other advantageous measures on both sides
that might make it fit the situation. Or, do we establish some
sort of military commission or tribunal that is somewhat of a
hybrid, but, at the same time, serves the valuable purpose for
a very difficult situation? I tend to go down that road. I
would hope, as was discussed last week, that we can take the
best of laws and rules within the UCMJ, our current criminal
system, and the international system to incorporate and come up
with a system that is not complicated, does not rewrite
military law, and does not rewrite the way in which we deal
with the enemy, both from an interrogation and a prosecution
standpoint.
My question to you is this. I asked this question last week
to the panel, and I will tell you that there are certain things
that will jump out at you. As we look at trying to establish a
military commission or military tribunal are there certain
things within current military law that you can think are
issues that will have to be addressed in a more significant way
within some sort of criminal or combatant tribunal or
commission that we establish?
The examples that I will give you are this. It was brought
up that the issue of chain of custody has to be dealt with.
There are some very good rules within the UCMJ that will allow
us to deal with that. The exclusionary rule is an issue that's
going to have to be dealt with. There was a recommendation that
we consider the adoption of the hearsay rule from the
international court, because it is a little more liberal,
frankly. Our hearsay rules are much more restrictive in the
United States, apparently, than anywhere else in the world.
Those are the types of issues that I have reference to, so
I'd just throw that question open. Are there any issues that
jump out at any of you relative to what we need to be thinking
in terms of as we establish some sort of military commission or
tribunal that we have to make sure that we deal with
specifically?
Ms. Bierman. Senator, if I may address the issue of the use
of hearsay evidence in international criminal tribunals (ICT),
I think that it's okay and, in some ways, maybe advisable to
look to those rules about how to use secondhand testimony, but
I would caution you to understand the full range of the rules
the criminal tribunals use, and how they interact. So, it's not
simply that they use a probative standard to allow in
statements. If that were the case, then the current military
commissions, the failed military commissions, would not have
been so offensive. The ICT have a number of other features that
interact with that, such as, for example, the structure of the
decisionmaking body.
The ICTs aren't a jury or a panel of military officers;
they are judges, who are trained and have experience making
fine evidentiary distinctions. There's a very clear prohibition
on any evidence that's obtained by a violation of
internationally recognized standards. The judges can decide the
issue on their own about whether the evidence should come in or
not. The party does not have to raise the motion. The judges
can decide to disregard testimony after they've heard it. These
are all very important features of that system that work with
the way the ICTs allow in hearsay evidence that I think this
body should consider to be an important part of that rule, if
you go that direction.
Ms. Massimino. Senator, if I could just add, your question
underscores and in my written testimony I address some of these
issues that you raised, but I would caution that just as when
we first started down the road towards military commissions,
there was a speculation, I think because we didn't know what
kind of evidence we were going to have. There was some
speculation about whether or not the rules would be too
restrictive and what would we need to loosen in order to have
trials of these kinds of individuals. We're beginning to
engage, a little bit, in that kind of speculation again,
without the benefit of a careful examination of the instances
that we have now in front of us, of these very cases. Is the
court-martial system really so inflexible that it can't deal
with many of the issues that you've raised and that others have
raised?
I think it would be very useful for the committee to have a
hearing that really addresses those issues, because they are
the crux. Some of us say start from the UCMJ, because we think
that's the most practical, for a number of reasons, others say
start with the existing rules. One of the witnesses said it
doesn't really matter where you start, it matters where you end
up. We have to have a hundred-and-something changes to the UCMJ
to then result in military commissions, but if those changes
don't result in a system that's improved over the one we have,
then I think we're going to end up in litigation instead of
seeing terrorists brought to justice.
I think that whether you approach this from either one end
of the spectrum or the other, what we need to really jump to
quite quickly is an analysis in detail. We need the
administration's knowledge and cooperation in understanding
what it is that the UCMJ system contains that they believe
stands in the way of effective prosecutions of the kinds of
people that we actually have in custody now.
Mr. Fidell. Mr. Chairman, if I can comment to Senator
Chambliss. On the question of hearsay, I personally am very
interested in comparative law. I'm working on a textbook,
actually, on comparative military justice, so it's a
preoccupation of mine, in fact. But if you look at the rules, I
believe, for the International Criminal Tribunal for Former
Yugoslavia (ICTY) they have a rule that is widely misunderstood
as opening the door to hearsay, in general. In fact, I'm just
going to read 92b(a). ``A trial chamber,'' their trial court,
``may admit, in whole or in part, the evidence of a witness in
the form of a written statement in lieu of oral testimony which
goes,'' here is where it gets interesting, ``to proof of a
matter other than the acts and conduct of the accused as
charged in the indictment.'' In other words, it's only on
collateral matters that they've, by our standards, lowered the
bar.
So, again, it's a cautionary note. I'm all for finding out
how things are handled in other legal systems, how the various
international tribunals handle these issues. But you have to
really go in and root around a little bit sometime.
Also, this is a theme that I think a number of us have
mentioned. I really hope that people will not shortchange the
body of jurisprudence that the Court of Military Appeals, now
the Court of Appeals for the Armed Forces, has generated in the
last 55 years. That is a highly practical court. They are very
aware of military exigencies. They have a system that has
proven to be workable in some very forbidding environments.
They're quite practical people. If you look at the way they've
handled, for example, the need for Article 31 warnings, I'm
sure that's one of the things that is on your list of concerns,
they've distinguished between interrogations that are conducted
for law enforcement or disciplinary reasons, on the one hand
and interrogations for operational reasons, on the other. These
are very practical people.
Chairman Warner. I think you made a valid point there, and
in the final product, should make reference, perhaps, that law
has a certain binding effect, because it is a body of law drawn
that could be helpful.
Any further questions, Senator?
Senator Chambliss. I have one.
Chairman Warner. Yes.
Senator Chambliss. I don't think it will require a lengthy
answer. If it does, I'd be happy to take them in writing.
Does anybody have a problem with the appellate process
that's taking place under something akin to the appellate
processes set forth in the UCMJ?
Mr. Fidell. Just the reverse I think.
Senator Chambliss. Yes, I notice in your testimony you
talked specifically about that.
Mr. Fidell. Right. What I think, before you were here,
Senator, I had testified, in my prepared statement, that you
could probably consider dispensing with one tier of the
appellate review, the one at the Court of Criminal Appeals
level, and just go directly from the military commission to the
Court of Appeals for the Armed Forces on E Street. You don't
really need that additional tier in the middle, although you
might have to tweak the powers of the Court of Appeals to make
sure people are getting thorough review of things like
sentences and whether the evidence added up to guilt, to proof
beyond a reasonable doubt.
Senator Chambliss. Okay.
Thank you very much, Mr. Chairman.
Chairman Warner. Thank you very much, Senator.
Senator Cornyn, had you finished, also?
Senator Cornyn. I did, thank you.
Chairman Warner. Senator Dayton, do you wish to interject,
at this time, a question?
Senator Dayton. Thank you, Mr. Chairman. Maybe if I could
we would hear from the last witness, and then I'd reserve my
right to ask questions.
Chairman Warner. Fine.
Senator Dayton. After the two of you, I just want to say,
this is an outstanding hearing. I thank you, Mr. Chairman, for
holding it.
Chairman Warner. Thank you.
I appreciate the indulgence of all members of the
committee. This is somewhat of an unusual process, but we have
just so much going on in the United States Senate this morning
that our members are scattered many directions.
Now, you've been very patient there, Mr. Mernin, Chair,
Committee on Military Affairs and Justice and the Association
of the Bar of the City of New York. I'm delighted that the Bar
has allocated a portion of its resources and talent to look
after this subject.
STATEMENT OF MICHAEL MERNIN, CHAIR, COMMITTEE ON MILITARY
AFFAIRS AND JUSTICE, THE ASSOCIATION OF THE BAR OF THE CITY OF
NEW YORK
Mr. Mernin. Senator, we're delighted to be here. Thank you
for the opportunity--Senator Levin, also--to appear today on
behalf of the New York City Bar Association.
The Association is an independent nongovernmental
organization (NGO) with a membership of more than 22,000
lawyers, judges, law professors, and government officials,
mostly from New York City, but also from around the country,
and from 50 other nations, as well.
I'm here, because I'm chair of the Association's Committee
on Military Affairs and Justice. We have, in the past,
submitted reports and commentary to the committee's attention,
and we hope that it's been helpful to you. My particular
committee seeks to act as a bridge, to an extent, between the
civilian and military legal establishments, to try to educate
the civilian legal establishment about military law.
The military justice system of this Nation is a model for
the world. With that in mind, I would like to focus my remarks
on the straightforward recommendation that we presented in a
letter to all the members of this committee and other Senators
and Members of the House several weeks ago. The recommendation
is born of the complexity of the issues, which I think has been
evidenced by the series of probing questions we've been met
with today. These are very sensitive issues.
With that in mind, I'd like to note that there's a great
wealth of expertise available. Our proposal is that, in the
wake of this Hamdan decision, that Congress ought to seek to
formally empanel an advisory commission or panel with a mandate
to advise Congress and its committees about the appropriate
means to establish a military commission system that would
respond in a very transparent, nonpartisan, depoliticized
manner, consistent with our national values, to the Supreme
Court's decision. We believe that legislation authorizing the
creation of a 10- or 15-member advisory panel could be quickly
passed, would be relatively simple to draft, and there are
existing analogs, which we pointed out in our letter of a
couple of weeks ago, in other areas.
Once authorized, it's not the sort of group that would
require a great deal of staffing. They could begin their work
immediately and, I think, without delay, provide immediate
useful advice and drafting to Congress. Our idea is that this
group would be composed of, for instance, the retired JAGs and
law professors, the great many practitioners, such as Mr.
Fidell and members of the NIMJ, who would be able to operate
and draft commission legislation and present it for review, and
the Senate and entire Congress would have the knowledge of
knowing that great people with the wealth of experience and
expertise had been working diligently on this.
As an alternative, even without legislation, I would
suggest there might be a way for this committee to achieve that
goal without that formality. To make a special effort to draw
upon the available expertise across the country of
practitioners and retired JAG officers who would be more than
willing to serve their country in this fashion, by trying to
make this the best piece of legislation possible.
Chairman Warner. If I may comment, and then I would invite
my colleague to have his views, Senator Levin and I have been
privileged to serve our States as Senators for 28 years, and we
have seen a good deal of history. I have to be honest with you.
The current Congress is due to expire at the end of this
calendar year. We have but about 2\1/2\ weeks left before what
we call the August recess. We resume in September for several
weeks, and then we discontinue right at the 1st of October.
While we may come back for tidying up a few details, we're
looking at a very short period of time.
Now, that's Congress. The Supreme Court has directed the
other two branches of the Government to turn to and solve this
problem, because we have a lot of contentious viewpoints with
regard to how the current system is operating, or not
operating, in the case of the commission. I feel that we're
going to do our best, as a committee, the Judiciary Committee
is working on this, and the Intelligence Committee may work on
a piece of this, because they want to make certain that our
intelligence system can go forward.
I don't mean to be disrespectful, I do not see the
opportunity to have what you have suggested. The situation has
to be addressed as quickly it can. We have to rely on the
manner in which Congress does its business and presently
constituted. We're going into this hearing this morning to get
outside advice. I appreciate the advice we've received. I don't
think it's practical. We're going to have to do the best we
can.
So, I do hope you will continue to participate, recognizing
I don't think we can get a legislative panel of advisors set
up, nor really extend much beyond what we're going to do here
in the several hearings.
But, Senator Levin, do you have any comments?
Senator Levin. I think I know what I would do if I were by
myself deciding this, and that would be to establish just a
panel for this committee, ask them to report back to us within
30 days so that we could take it up in September. On the other
hand, I'm not sure that's where the majority of the committee
is, and I'm not sure such a panel could report back to us in 30
days.
Chairman Warner. Well, it's the practicality. I wouldn't
dismiss it out of hand, but we haven't discussed that. We often
discuss, and we always do.
Senator Levin. Right. Right. Our chairman is doing a
terrific job under a very difficult time constraint here.
We have a checklist, in effect, from the administration,
apparently, that's been created. That's going to be useful.
What I would like from our panelists, for the record, depending
on what your starting point is, where would you change based on
practicality and necessity the UCMJ and the court-martial
rules? Give us the list of what you would acknowledge, in the
case of some of you, are needed changes from that baseline for
a commission to operate in the context that we're talking
about. Or, should you prefer to start with the Executive Order
1, what do you believe would need to be changed or added to
that Executive order specifically in order to meet the Supreme
Court's requirements or the fundamental due-process rights?
We have such talent here and obviously there's a lot of
other talent that's not represented on either of these panels
that we could solicit. It seems to me, to give us specific
recommendations, depending on your baseline, from that baseline
that would be needed.
I'd leave it at that, and I'd ask our witnesses whether
they'd be willing to do that, and then ask our chairman whether
or not he feels that soliciting that from these witnesses, our
next panel, to get these specific lists, and others that might
be interested in this subject, might help us design
legislation. We know the administration's going to give us a
proposal. Was it within the next couple of weeks we expect a
proposal? Is that a fair statement?
Chairman Warner. That is correct, yes.
Senator Levin. Those lists from these witnesses and others
would be very helpful to me.
Chairman Warner. I had planned to do something similar to
what you've suggested at the end of the hearing. I would want
them to try and collate the two things, put them together.
Because I'm of the view we're going to end up with a mix of the
UCMJ and the commission concept. So, you don't have to give us
a polished statute in legal language, but, ``This is what you
should have'' and that is an essential part. As Senator Levin
said, we'll provide you with what the Department gives us by
way of their thought process of what might have to be changed,
and so you can have the benefit and save a little time to go
into the work.
[The information referred to follows:]
Chairman Warner. We'll also see whether we can get that
draft manual out, because I think it would extremely helpful.
To the extent you can constitute among yourselves some sort of
a working group, I mean, this is a nucleus. When I first walked
into the room, one of the witnesses said, ``This should not be
the end. This should be the beginning of our participation. We
want to help you.''
So, I'd join you, Senator Levin. I'd just broaden the
tasking.
Senator Levin. That would be fine.
Yes. I would share that. I'm not sure which groups would,
on their own, get together to try to put together a consensus
list, but if they can do it, that would be more helpful to this
committee. I agree with our chairman rather than getting 20
different recommendations, if we could get two or three
groupings of recommendations.
By the way, Mrs. Massimino, I disagree with you if you were
implying that you agreed with the testimony of last week that
it's not important what the baseline is. It is relevant,
because where you end up may depend, to some extent, on where
you start from and what your baseline is. So, I don't agree
with last week's testimony and if you were agreeing with it, I
disagree with that comment of yours.
However, it is still important where you end up. Obviously
that is more important than where you begin. My point is that
where you begin affects, probably, where you end up.
Whether you want to start with Executive Order 1 or whether
you want to start with the UCMJ, to me, it would be most
helpful if there could be groups that would come together, if
possible, as our chairman suggests. Tell us what changes you
acknowledge would be needed for practicality and necessity in
this kind of circumstance, and needed changes in the UCMJ, or
deviations, or variations from UCMJ for these circumstances. I
guess, from the perspective of those who want to start with the
Executive Order 1 as the basis, what changes would you concede,
rather than acknowledge, depending on your baseline, would be
needed to meet the requirements of due process or the Court's
opinion.
I think what the chairman is suggesting, if we could get
groups of interested parties here to come together on their own
initiative and present specific lists to this committee so that
we'd end up with two or three representing perhaps different
approaches, that would be extremely helpful to us.
Mr. Fidell. Mr. Chairman and Senator Levin, I think that's
the type of thing that these groups--although there's a range
of opinion along this table and in this room; there are other
people who probably have a different viewpoint--but I think all
of us will huddle after today's hearing and see what we can do
to assist the committee in that respect. NIMJ will be there and
actively providing whatever service we can in that respect.
However, and here comes the bad part, and my fellow
panelists will kill me when I say this, do you have a schedule
in mind?
Chairman Warner. Yes. It is anticipated that the work of
this committee, and to the extent that other committees wish to
make a contribution, should be in the hands of our leadership
about the second week in September.
Mr. Fidell. So, when do you need what I'll call the Warner-
Levin list?
Chairman Warner. Senator Levin and I are going to continue
to work this situation through the month of August from time to
time. Personally, I've foregone some of my plans, because of
the importance of this issue. I think my good friend usually
does the same. So, we're in business. The committee will
continue. We do not discontinue simply for an extensive
recessive period of August.
Senator Levin. How about 30 days? Could they try to get
back to us then?
Chairman Warner. Fine.
Mr. Fidell. Thirty days from today.
Chairman Warner. Whenever you can get to it. I would hope
sometime in the middle of August, so that the two of us can
disseminate this to our other colleagues and continue to work
the problem. Then, don't think that's the end result.
Mr. Fidell. Right.
Chairman Warner. Between now and then, you'll obviously
hear about what proposals the administration has in mind, and
that would be, I think, important guideposts.
Senator Levin. I know our chairman, because he's such a
wise and fair man, is going to extend this same suggestion to
other groups that want to make contributions. The more groups
can come together in some kind of coalescing, it would surely,
I think, help the committee. Not just people in the sound of
our voice. I know that our staff would be letting other groups
know that we've solicited these kinds of lists, if they want to
join.
Chairman Warner. I think the word will spread, you're
correct.
Mr. Fidell. This is like one of those situations where the
DC Circuit has 50 amici from a particular industry, and tries
to kick people so that they can join in one another's briefs a
little bit. We'll try, I'm sure.
Chairman Warner. All right. I think there's a lot of
initiative in this panel, and I somehow feel that you've been
established as a band of brothers and sisters now to get a job
done.
Senator Levin. I'll have a special request of you, Mr.
Fidell, for your organization.
Mr. Fidell. Here it comes. [Laughter.]
Senator Levin. I'll wait until my round of questions, I
guess. I don't know when that draft was created.
Mr. Fidell. July 6.
Senator Levin. July 6?
Mr. Fidell. July 6 or 7, sir.
Senator Levin. Yes. What I would like your organization
specifically to address that are left open on your testimony,
specifically kind of suggest that under existing circumstances
you may want to take another look at certain issues. I'm going
to ask that your organization look at different issues, re-look
at some of the issues you've addressed, and look specifically
at some that you didn't address, regardless of what all the
others do.
Mr. Fidell. Understood.
Chairman Warner. Good.
Now, you've been very patient. But you sort of started
this.
Mr. Mernin. That's right, Senator.
Chairman Warner. We'll now restore part of your time.
Mr. Mernin. I'll try to conclude it, as well.
Increasingly cognizant of the time constraints we've been
discussing, I'm not going to belabor the point, but I would
emphasize what I think you've already taken to heart, and that
is to make use of the outside expertise that's available to try
to get this done and get it, as you say, right.
Chairman Warner. If I could just interject.
Mr. Mernin. Yes.
Chairman Warner. This Nation is at war, and we must turn to
and get a job done. We don't have the ability to extend this
thing over a year's time and go through many, many hearings,
because it's not fair to the men and women of the Armed Forces.
This thing should be resolved. Particularly, our intelligence
system has to know the parameters in which they can continue to
work and do the absolutely essential function of collecting
realtime intelligence for our forces. So, we're under unusual
constraints.
Mr. Mernin. Absolutely. I completely understand.
I'm not going to discuss, at any length, Mr. Fidell's NIMJ
proposal, other than to say the Bar Association has been
looking at it. While we haven't done a full formal review of
it, we applaud their efforts. In general, we approve the
approach, and we believe the draft is the appropriate and good
model for this committee to work from. We'll cooperate in that
regard. Mr. Fidell's group and the Association have a good
history of working together, so I know we'll work together.
While we await the opportunity to comment on whatever
formal legislation ends up coming out of this expedited
process, I would just want to emphasize the few points and
areas that the Association is particularly concerned with.
First and I won't belabor it, because it's been covered at
length. But we filed an amicus brief in the Hamdan case arguing
for the application of Common Article 3, so we obviously are
pleased to see the Court recognize that application.
Chairman Warner. Do you have a copy of that brief with you
today?
Mr. Mernin. I do not, Senator, but we'll send one.
Chairman Warner. Would you, at the earliest opportunity? I
think it would be very helpful if we had the chance to look at
that.
[The information referred to follows:]
Mr. Mernin. We think it's clear the rules for the so-called
noninternational conflicts refer to conflicts not between state
parties, as distinct from conflicts between state parties, to
which the entire Conventions apply. We just don't think that
this is a point that should be in further dispute.
Our customary international law and the past practice of
our State Department and the DOD, the Armed Forces have long
recognized the applicability of Common Article 3 as a minimum
safety net for all armed conflict.
So, it would be unfortunate, and almost inconceivable, I
think, for the United States to be the first country in history
to publicly turn away from a bedrock piece of the law of war,
this fundamental part of the Geneva Conventions.
Chairman Warner. I wouldn't want anyone to depart from this
hearing thinking that, certainly in the context of what this
committee's been doing, that we've manifested any indication
that that would be the direction in which this committee is
likely to go.
Mr. Mernin. Absolutely.
We also have particular concerns that there be transparency
to the process, going forward. After the President issued the
military order, of the 10 or so follow-on directives
establishing the rules for commissions, we believe, only 1 was
released for public commentary. We offered comments on that. It
had to do with elements of the offenses. After the comments
were received, the DOD declined to make the public comments
available for review. So, we don't know what other public
comments were ever received. Any sort of process of further
rulemaking, we suggest, needs to be manifestly more transparent
in order to guarantee that this gets done right.
I think we talked a great deal about the Court of Appeals
of the Armed Forces, so I won't reiterate, other than to say we
understand that Congress has the flexibility on this point,
that it probably would not, for instance, be an abridgment of
Common Article 3 to deny military commission defendants the
right to have a case heard at an intermediate appellate level
with what Mr. Fidell referred to earlier. I would agree with
that.
I think, in response to Senator Cornyn, earlier, I
discussed some particularly salient evidentiary issues that we
have concerns about, so I'm not going to repeat those now. I'll
refer to my prior remarks.
On that note, I think I can conclude and thank you for
considering our views. Any further help we can be, we will
cooperate with other groups.
[The prepared statement of Mr. Mernin follows:]
Prepared Statement by Michael Mernin
Thank you for the opportunity to appear today on behalf of the New
York City Bar Association. The Association is an independent
nongovernmental organization with a membership of more than 22,000
lawyers, judges, law professors, and government officials, principally
from New York City, but also from around the United States and from 50
other countries. I am here today as chair of the Association's
Committee on Military Affairs and Justice, which has in the past
submitted reports and correspondence to your attention on a variety of
issues related to military law.
I would like to focus on our straightforward recommendation which
is born of the complexity of the matter at hand. In the wake of the
Hamdan decision, we want to urge Congress to act quickly to establish
an expert panel with a mandate to advise Congress and its committees
about the appropriate means to establish a military commission system
that would respond--in a transparent non-partisan manner--to the
Supreme Court's decision. Legislation authorizing the panel's creation
and the method of selecting its members would be relatively simple to
draft, and there are existing analogs, in other areas, which we have
highlighted in a recent letter to you. Once authorized, such a panel
could begin its work without delay, and provide immediate useful advice
and drafting assistance to Congress.
On November 13, 2001, the President issued an Executive order
establishing military commissions. The Military Order was adopted in
haste without the active participation of the Judge Advocates General
(JAG), consultation with Congress or public comment. The Association's
Committee on Military Affairs and Justice issued one of the first
reports studying that order. In our report, we offered criticism and
advice as to how the commissions might better be structured to satisfy
the competing goals of security, credibility and fairness, and we
suggested that, instead of the proposed commissions, a forum based
instead on the Uniform Code of Military Justice (UCMJ) would be a
reasonable starting point. Over time, the rules for military
commissions were ameliorated, though many of its procedures remain
controversial. Despite the initial haste, the commissions have yet to
try a single case.
Now, almost 5 years later, Congress has been given a fresh
opportunity to be heard on this front. We are mindful that the impulse
to ``get it done'' is strong, and not without merit. But having
witnessed the results of haste flowing from the November 2001 Executive
Order, it should be Congress' goal here not just to get it done, but to
``get it right.'' We firmly believe that a useful tool in getting it
right would be to establish an expert panel of former JAGS,
practitioners, scholars, and other attorneys who have devoted their
careers to these important issues, whose expertise and insight would be
the best guarantee that due consideration were given to the security
issues, the due process issues, and the human rights issues. This
process would serve the twin goals of establishing a workable system to
prosecute and punish our enemies who have committed breaches of the law
of war, and establishing a system which reaffirms the United States'
role as a pre-eminent guarantor of the rule of law and human rights.
We are aware of the National Institute of Military Justice's (NIMJ)
proposed amendment to the UCMJ to address this matter. Although the
Association has not yet performed a full review of the proposal, we
applaud NIMJ's efforts and, in general, approve its approach. Within
the context of the NIMJ proposal, we suggest that an advisory panel,
similar to what we propose, could also prove useful to advise both
Congress and the President about the modifications to the UCMJ which
could form the foundation of the new military commission system.
Any consideration of proposed legislation will require a thorough
review at the time of introduction. While we await such opportunity,
the Association has specific concerns about certain issues which will
likely be relevant to Congress' consideration and debate, which I will
summarize below:
geneva convention--common article 3
Our Association filed an amicus brief in Hamdan arguing for the
application of Common Article 3. We could not be more pleased to see
the Court recognize that application. Reading the Geneva Conventions in
context it is clear that the rules for so called ``non-international''
conflicts refer to conflicts not between nations, as distinct from
conflicts between states party to which the entire Conventions apply.
Moreover, customary international law and the practice of our State
Department and our Armed Forces have long recognized that Common
Article 3 is the minimum safety net for all armed conflict. Whenever
and wherever Americans, military or civilian, become captives in armed
conflict, we will want to be able to count on those rights. It should
be inconceivable for the United States to be the first country in
history to turn away from the Geneva Conventions, the bedrock of the
law of war.
transparency
After the President issued the Military Order, of the 10 or so
follow-on directives establishing the detailed rules for Military
Commissions, only 1 was released for public commentary. That directive
concerned establishing the elements of offenses, and we offered
comments as requested. The Department of Defense subsequently refused
to make public the comments it received.
procedures
Procedural issues tend to either be results-oriented or security-
oriented. Some procedures do involve tough questions of balancing
security interests with reasonable due process and fairness. Certain
procedures will obviously require modification to accommodate the
realities of the situation. For example, Miranda warnings are on their
face inapplicable.
Appeals
There is no imaginably better appellate tribunal to hear appeals
from military commissions than the Court of Appeals for the Armed
Forces (CAAF), a well respected article I court of civilian justices
appointed for 15 year terms. Clearly this court could hear military
commission appeals without breach of security. Barring only tribunals
held in a theater of operations, we would favor using the CAAF and the
intermediate service courts of appeals as recommended by NIMJ.
Evidence
We have no objection, in principle, to permitting more flexible
rules of evidence consistent with battlefield conditions and
international standards. However, much more specificity is necessary
than the wide open concept of ``all evidence of probative value.'' The
use of secret evidence, to which the defendant is denied any access,
should not be permitted. The accused must ultimately have access in
some form to evidence supporting the charges against him, and civilian
defense counsel with security clearances should have access to all
evidence admitted against the accused and all potentially exculpatory
evidence. As with the procedure used in our Federal courts, we believe
security redactions, where both court and defendant see only the
redacted document, is a reasonable procedure. Any evidentiary disputes
should be ruled on by the presiding legal judge before being made
available to the members of the commission.
Thank you for considering our views. If you have the need for
drafting assistance or further information in your consideration of
this important matter, we would be glad to provide assistance to this
committee or to any other panel convened.
Chairman Warner. Good. Just out of curiosity, does your
amicus curiae brief go into the history of the development of
that article?
Mr. Mernin. I believe it did, Senator.
Chairman Warner. I am fascinated researching the history of
that period, when it was developed.
Mr. Mernin. What I find particularly fascinating, Senators,
and if you look at the entire panoply of the conventions, they
were negotiated in the aftermath of World War II, with Josef
Stalin's Soviet Union. Yet, even Joe Stalin saw fit, in the
ravaged Europe, to be part of setting up a system which put in
place a guaranteed baselines for treatment. Now, there were
some carve-outs that he got as to security detainees and things
like that, but it says something.
Chairman Warner. That speaks to a lot. I'm quite interested
in the history. If anybody else can direct me to a resource of
how this was developed, I would appreciate it very much. Just
forward it to me directly, here to the Senate.
Thank you.
Now, we have you, sir. Thank you.
STATEMENT OF JAMES J. CARAFANO, SENIOR RESEARCH FELLOW, THE
HERITAGE FOUNDATION
Dr. Carafano. Mr. Chairman and Senator Levin, first I'd
like to say that we, on behalf of The Heritage Foundation,
would be more than willing to take on the task that you laid
out and to partner with others, where we can, in looking at
that. So we'll aggressively pursue that.
I hope you'll indulge me for just a minute. I'm not a
lawyer, and I think it's a different perspective that I think
this panel needs to hear.
My assessment comes from 25 years as a soldier who has
lived under UCMJ and as a military scholar, who's written books
on how real wars are fought, and as a strategist who genuflects
every time he walks by George Marshall's desk at the Pentagon.
I think, quite frankly, my assessment is that the focus of
this debate has been largely wrong.
Chairman Warner. Been largely what?
Dr. Carafano. Wrong.
Chairman Warner. Wrong.
Dr. Carafano. Because it's been primarily about legal
issues. While I would, of course, argue that it's essential
that what Congress does and what the administration does pass
constitutional muster, that that's not the only issue at stake
here. What is equally important is that the solution supports
the strategy for the war on terrorism. That's why I think this
hearing is absolutely essential. Each branch has a specific
responsibility. In wartime, it's the Court's job to interpret
the law. It's the President's job to fight the war. It is
essentially Congress's job to provide the President the right
kinds of instruments to do that. So I think these hearings are
absolutely essential, because this really gets to the bedrock
of what kind of instruments are you going to provide the
President.
I would argue that strategy needs to be front and center of
the discussion; because you fight long wars differently. I
think that's an essential element that people often miss. In a
long war, you're as concerned about protecting and nurturing
the competitive power of the state to compete over the long-
term as you are with getting the enemy. It's the difference
between running a sprint and running a marathon. So long wars
call for different kinds of strategies. What we've argued, and
what we've used to assess every element of what the Government
has done, from homeland security to legal issues to Guantanamo
Bay, arguably, there are four elements of a good long-war
strategy. They are: security--getting the enemy, and protecting
yourself; economic growth, because, at the end of the day,
economic growth is what both sustains the security and meets
the vital needs of the state; the protection of civil liberties
and privacies, because that's the essential glue that gives the
people the will to prevail, that is what keeps the civil
society together; and winning the war of ideas, because all
wars are won in the minds of men and women.
What I have argued is that if you have a strategy that
doesn't equally support each four of those pillars, then you
don't compete well over the long-term. I'd argue, as a
historian, if you go back and you look at the Cold War, which
is actually one of the few long wars in history where a state
actually got stronger over the course of the conflict, where it
was a stronger, more powerful, and just as free nation at the
end as it was at the beginning, it's because that largely in
the Cold War we adhered to trying to do all four of those
things simultaneously, and we did them all sufficiently well.
So with regards to this issue, I think I have concerns on
three of the components: security, civil society, and the war
of ideas. I'd just like to share those with you very quickly,
and then I'll conclude my remarks.
In terms of security, I think there's really two issues at
stake. One, as I mentioned, is Government has the dual purpose
of the security of the individual and the security of the
people, and legal systems are designed to deal with both of
those. Most of our legal systems and the UCMJ is a prime
example of starting with the premise of defending and
protecting the rights of the individual, and then it builds in
the requirements for national security and the requirements for
military success, and is essential.
I think the legal system that we demand here is something
very, very different. It should start with satisfying the
national security issues of the Nation, and then we should
build into that the minimum due-process requirements that are
required.
My second concern is the system that we come up with. We
have to preserve the flexibility of the executive power. The
Presidents fight the wars, and Clausewitz, the famous Prussian
military philosopher, said, ``Everything in war is simple, but
even the simple is very difficult.'' The reason why he said
that is, he talked about the friction of war, the
unpredictability, the changing nature of war. So we've bound
our executive to the minimum possible to allow him or her the
flexibility to adjust for the changing face of war.
How we apply military commissions today or next year may be
different. The threat may present itself differently 5 or 10
years from now. So, we really want to be cautious in how we
bound the executive in this.
I think there is a civil society issue at stake here. I
think it's a fundamental mistake to begin with UCMJ as the
start and in a sense, creating the notion, even if it's not
completely accurate, that you are rewarding unlawful combatants
by placing them under a legal system which is designed for
people that live in the light. I mean, even criminals, in a
sense, live in the light and respect.
Chairman Warner. Designed for people who live in what?
Dr. Carafano. To live in the light. In a sense, even
criminals live under the legal system under which this is a
system that you're combating an enemy who actually wants to
destroy the legal system. I do think that any perception that
you're rewarding them for operating under a system which
they're trying to destroy is incorrect. I do think that
creating a separate legal system, even if, at the end of the
day, they look fairly similar, is an essential component of
maintaining the notion of what makes for a healthy civil
society to make a distinction between those who respect the
rule of law and those who want to destroy the rule of law.
I'll just end on my third point, which is where this fits
in the war of ideas. I do believe that the discussion we have
here, and how Congress rules on this, or acts on this, is going
to have an immense implication on how the United States is
portrayed to the world. I think what we have to recognize is
how do you contribute to winning the war of ideas? It's not
about doing something that is very popular. It's not about
doing something that gets a broad consensus of lots of people.
It's really about doing the right thing.
The most essential component is to demonstrate two things.
One, that you have the will to prevail, that you're going to
prevail against the terrorists no matter what they do, no
matter what they try, that the Nation's going to keep fighting
until it wins, until people are free. Two, that you respect the
rule of law and you're never going to sacrifice the rule of law
in how you fight that war.
At the end of the day what really is going to advance the
cause of the United States in the war of ideas is that you have
a Supreme Court and a Congress and an administration that speak
with one voice. That, I think, is the most essential component.
At the end of the day, I think what's really required for a
solution that just doesn't respect the rule of law, but it
helps win the long war. Really, both of those have to be
paramount and equally weighed as you move towards your final
recommendations.
Thank you, sir.
[The prepared statement of Dr. Carafano follows:]
Prepared Statement by Dr. James Jay Carafano \1\
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\1\ The Heritage Foundation is a public policy, research, and
educational organization operating under section 501(C)(3). It is
privately supported, and receives no funds from any government at any
level, nor does it perform any government or other contract work. The
Heritage Foundation is the most broadly supported think tank in the
United States. During 2005, it had more than 275,000 individual,
foundation, and corporate supporters representing every state in the
U.S. Its 2005 income came from the following sources:
Individuals - 63 percent
Foundations - 21 percent
Corporations - 4 percent
Investment Income - 9 percent
Publication Sales and Other - 3 percent
The top five corporate givers provided The Heritage Foundation with
2 percent of its 2005 income. The Heritage Foundation's books are
audited annually by the National accounting firm of Deloitte & Touche.
A list of major donors is available from The Heritage Foundation upon
request.
Members of The Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed are
their own, and do not reflect an institutional position for The
Heritage Foundation or its board of trustees.
---------------------------------------------------------------------------
Mr. Chairman and other distinguished members of the committee,
thank you for the opportunity to testify before you today on the U.S.
Government's proposal to try unlawful combatants by military
commissions in light of the Supreme Court decision in Hamdan v.
Rumsfeld.\2\ What I would like to do in my testimony is: (1) describe
how this decision fits in the context of how America ought to fight the
war on terrorism; (2) make the case that Congress ought to ratify the
president's discretion to use military commissions to try these types
of unlawful combatants and the offenses charged, and grant the greatest
discretion to this and future presidents to establish just rules for
such tribunals consistent with national security; and, (3) suggest how
the Bush administration's proposal for commissions could be amended to
satisfy legitimate congressional concerns.
---------------------------------------------------------------------------
\2\ Salim Ahmed Hamdan, an al Qaeda suspect held at the facility
for terrorist combatants at the U.S. military base in Guantanamo Bay,
Cuba, challenged the government's right to try him by the military
commissions established by President George W. Bush's November 13, 2001
order governing the detention, treatment, and trial of non-citizens in
the war against terrorism. The Supreme Court ruled in Hamdan's favor,
declaring that the commissions have to be explicitly authorized by
Congress.
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winning the long war
My view of what Congress should do is tempered by a 25-year
military career as a soldier and strategist. In deciding how to move
forward after Hamdan v. Rumsfeld, strategy matters. While Congress and
the Bush administration must a find a remedy that is consistent with
the demands of the Constitution, satisfying the rule of law is not
enough.
The best solution is one that is consistent with how the law in
free societies should be used in wartime, and an approach that supports
the national strategy.
President Bush was right to argue that the concerted effort to
destroy the capacity of transnational groups who seek to turn terrorism
into a global corporate enterprise ought to be viewed as a long war.
Identifying the war on global terrorism as a long war is important,
because long wars call for a particular kind of strategy--one that pays
as much attention to protecting and nurturing the power of the state
for competing over the long term as it does to getting the enemy. Long
war strategies that ignore the imperative of preserving strength for
the fight in a protracted conflict devolve into wars of attrition.
Desperate to prevail, nations become over-centralized, authoritarian
``garrison'' states that lose the freedoms and flexibility that made
them competitive to begin with.\3\ In contrast, in prolonged conflicts
such as the Cold War, in which the United States adapted a strategy
that gave equal weight to preserving the Nation's competitive
advantages and standing fast against an enduring threat, the U.S. not
only prevailed, but thrived emerging more powerful and just as free as
when the stand-off with the Soviet Union began.
---------------------------------------------------------------------------
\3\ See, Aaron L. Friedberg, In the Shadow of the Garrison State
(Princeton: Princeton University Press, 2000).
---------------------------------------------------------------------------
The lessons of the Cold war suggest that there are four elements to
a good long war strategy: \4\
---------------------------------------------------------------------------
\4\ See James Jay Carafano and Paul Rosenzweig, Winning the Long
War: Lessons from the Cold War for Defeating Terrorism and Preserving
Freedom (Washington, DC: The Heritage Foundation, 2005).
(1) providing security, including offensive measures to go
after the enemy, as well as defensive efforts to protect the
Nation;
(2) economic growth, which allows states to compete over the
long term;
(3) safeguarding civil society and preserving the liberties
that sustain the will of the Nation; and
(4) winning the war of ideas, championing the cause of
justice that, in the end, provides the basis for an enduring
peace.
The greatest lesson of the Cold War is that the best long war
strategy is one that performs all of these tasks equally well.
I want to highlight the elements of long war strategy, because the
successful prosecution of three of them--providing security, protecting
civil society, and winning the war of ideas--will depend in part on
well Congress moves forward after in Hamdan v. Rumsfeld. Congress
should authorize military commissions in a manner that respects equally
all three of these aspects of fighting the long war.
satisfying national security
There are three issues at stake in ensuring the Nation has the
right instruments for fighting the long war. First, military
commissions must be conducted in a manner that optimizes meeting
national security interests. Second, the principle of law that protects
both U.S. soldiers and civilians on the battlefield must be preserved.
Third, the power of the executive branch to adapt and innovate to meet
the challenges of war should not be encumbered.
In order to optimize national security interests, I would argue
against using the Uniform Code of Military Justice (UCMJ) as a basis
for authorizing military commissions for trying unlawful combatants.
The UCMJ is structured as a traditional legal system that puts the
protection of the right of the individual foremost, and then adds in
accommodations for national security and military necessity. Such a
system is not at all appropriate for the long war. For example, Article
31(b) requires of the UCMJ requires informing service men suspected of
a crime of their Miranda Rights. The exercise of Miranda Rights in
impractical on the battlefield. Hearsay evidence is prohibited in court
martial. On the battlefield, much of the collected intelligence that
the military acts on is hearsay. In fact, reliable hearsay may be the
only kind of evidence that can be obtained about the specific
activities of combatants. Likewise, overly lenient evidentiary rules
make sense when trying a U.S. soldier for a theft committed on base,
but not when someone is captured on the battlefield and is being tried
for war crimes committed prior to capture, perhaps in another part of
the world.
Rather than seek to amend courts-martial procedures to address
security concerns, I believe it would be preferable to draft military
commissions that put the interests of national security first, and then
amend them to ensure that equitable elements of due process are
included in the procedures.
I also believe that for the protection of both soldiers and
civilians, the distinction between lawful and unlawful combatants be
preserved as much as possible. If we respect the purposes of the Geneva
Conventions and want to encourage rogue nations and terrorists to
follow the laws of war, we must give humane treatment to unlawful
combatants. However, we ought not to reward them with the exact same
treatment we give our own honorable soldiers. Mimicking the UCMJ sends
exactly the wrong signal.
Finally, the executive branch's power to wage war ought not to be
unduly encumbered. If there is one truism in war, it is that conflict
is unpredictable. Carl von Clausewitz, the great 19th century Prussian
military theorist called it the ``friction of battle.'' Clausewitz also
said that ``everything in war is simple, but in war even the simple is
difficult.'' That is why in drafting the Constitution, the framers gave
wide latitude to the executive branch in the conduct of war. They
recognized that the president needed maximum flexibility in adapting
the instruments of power to the demands of war. In bounding the
president's traditional war powers, Congress should take a minimalist
approach.
respecting the rule of law
After September 11, the Bush administration's critics framed a
false debate that indicated that citizens had a choice between being
safe and being free, arguing that virtually every exercise of executive
power is an infringement on liberties and human rights. The issue of
the treatment of detainees at Guantanamo Bay has been framed in this
manner. It is a false debate. Government has a dual responsibility to
protect the individual and to protect the Nation. The equitable
exercise of both is guaranteed when the government exercises power in
accordance with the rule of law.
In the case of the military tribunals, the Supreme Court has
outlined a rather narrow agenda for Congress to ensure that the rule of
law is preserved. As legal scholars David Rivkin and Lee Casey rightly
pointed out in a June 30, 2006, Wall Street Journal editorial: ``All
eight of the justices participating in this case agreed that military
commissions are a legitimate part of the American legal tradition that
can, in appropriate circumstances, be used to try and punish
individuals captured in the war on terror[ism]. Moreover, nothing in
the decision suggests that the detention facility at Guantanamo Bay
must, or should, be closed.'' \5\ No detainee was ordered to be
released. Nor was their designated status as unlawful combatants (who
are not entitled to the same privileges as legitimate prisoners of war
who abide by the Geneva Conventions) called into question. The Supreme
Court did not so much as suggest that the non-citizen combatants held
at Guantanamo must be tried as civilians in American civilian courts.
Nor did it require that detainees be tried by courts martial
constituted under the UCMJ.
---------------------------------------------------------------------------
\5\ David B. Rivkin, Jr. and Lee A. Casey, ``Hamdan: What the
Ruling Says and What it Doesn't Say,'' Wall Street Journal, July 3,
2006, at www.opinionjournal.com/extra/?id=110008599 (July 18, 2006).
---------------------------------------------------------------------------
In addition, while the Court held that the basic standards
contained in Common Article 3 of the Geneva Conventions \6\ apply, it
should be pointed out that the Geneva Conventions have been honored,
except--according to the Supreme Court--in the way the military
commissions were established. Common Article 3 requires a floor of
humane treatment for all detainees. Granted, some of the language in
Common Article 3 is vague and subject to varying interpretations. For
the purposes of this discussion the most relevant issue is the
interpretation of the phrase that treatment should include ``judicial
guarantees which are recognized as indispensable by civilized
peoples.'' This requires some due process, such as the type of due
process the status review boards and military commissions provide. If
Congress explicitly ratifies the military commissions, then a majority
of the Court would uphold them as consistent with the Geneva
Conventions. This should satisfy U.S. obligations under the treaty.
---------------------------------------------------------------------------
\6\ Common Article 3 was signed in Geneva on August 12, 1949. It
applies to the treatment of persons waken in a conflict that is not of
an international character. It mandates that persons who have laid down
their arms and are no longer taking active part in hostilities shall be
treated humanely without adverse distinction based on race, color,
religion, faith, sex, birth, or wealth, or any similar criteria. It
also prohibits using violence against such people, particularly murder,
mutilation, cruel treatment, and torture; taking of hostages; and
outrages upon personal dignity. Finally, it prohibits the passing of
sentences and carrying out of executions without a judgment by a
regularly constituted court that affords the judicial guarantees
recognized by all civilized peoples, and mandates that the sick and
wounded by cared for. See ``Convention (III) Relative to the Treatment
of Prisoners of War,'' August 12, 1949, at www.icrc.org/ihl.nsf/0/
e160550475c4b133c12563cd0051aa66?OpenDocument (July 18, 2006).
---------------------------------------------------------------------------
Thus there is no reason for Congress to require courts-martial
under the UCMJ, to draft guidelines for new commission procedures, or
to partially overrule or repeal our ratification of the Geneva
Conventions. Congress also appears to have approved the president's
military commissions in the Detainee Treatment Act in December 2005,
although the Court has ruled this authorization is not sufficiently
specific. I would suggest that nothing has changed in the past few
months that should alter the sense of Congress.
It should also be understood that military commissions are intended
for limited use. We should not try most detainees. We should simply
detain most of them until hostilities are concluded or they are no
longer a threat. A separate administrative review process is used to
determine whether further detention is warranted, or for example,
whether the detainee is an innocent non-combatant.\7\ The Court never
said detention was improper. We should only try those who are war
criminals, and we have bent over backward to give them due process--
perhaps too much. It might even be best to delay their war criminal
trials, as we have in many wars, until the end of hostilities. That,
however, is something that traditionally has been, and should be, left
to the president's discretion.
---------------------------------------------------------------------------
\7\ Hundreds of detainees have been released from Guantanamo for
one reason or another. Not all were innocent or harmless, however. By
some estimates, approximately 25 of those released have been recaptured
or killed when they took up arms again.
---------------------------------------------------------------------------
winning the war of ideas
By explicitly authorizing military commissions, Congress can also
make a useful contribution to winning the war of ideas. The Court's
decision has been portrayed across much of the world as a huge defeat
for the Bush administration and a repudiation of its decision to hold
unlawful combatants. The ruling will, no doubt, be used by al Qaeda and
its affiliates as a major propaganda tool. It will also give ammunition
to America's harshest critics on the international stage. In
particular, the decision is likely to exacerbate tensions in the trans-
Atlantic relationship. Washington has been increasingly under fire from
European Union (EU) officials and legislators about Guantanamo. The
EU's External Relations Commissioner, Austria's Benita Ferrero-Waldner,
has called for the Guantanamo detention facility to be closed, and the
European Parliament passed a resolution urging the same. The EU's
condemnation of the Guantanamo facility has echoed those of the United
Nations (U.N.) Committee Against Torture and the U.N.'s hugely
discredited Commission on Human Rights, which condemned the detention
facility without even inspecting it. Now, these groups are trumpeting
the Supreme Court's decision.
However, these critics have largely ignored what the Court's
decision actually says. The approval of Congress and affirmation by the
Court that the commissions represent the will of the American people
demonstrate our resolve both to take the threat of transnational
terrorism seriously and to respect the rule of law.
what must be done
Also unchanged is the government's obligation to devise an
equitable long-term solution that fairly executes justice while fully
satisfying our national security interests. What is needed is a process
that does not treat unlawful combatants as regular criminals or
traditional prisoners of war. That would simply reward individuals for
breaking the rules of the civilized world. Most Guantanamo detainees
are not currently set to be tried for war crimes, and they may continue
to be detained with only minor changes to the administration's status
determination proceedings. For those scheduled to be tried for war
crimes, the Bush administration must follow existing courts-martial
rules or seek explicit congressional approval for the planned military
commissions.
Congress can satisfy its legal and national security obligations
explicitly by authorizing the proposed military commission process.
What is critical is that the Bush administration move forward
expeditiously, demonstrating once again its unswerving commitment to
fight the long war according to the rule of law.
Chairman Warner. I find those to be very valuable
guideposts.
This concludes the presentation by panel members. We'll
proceed to the second panel shortly, but we'll first go to a
round of questions. I, myself, am going to forebear any lengthy
questions, because I am anxious to allow the second panel an
opportunity.
Senator Levin.
Senator Levin. Mr. Chairman, I'm going to not ask questions
about specific provisions of either the manual or of the order
and as to how they would need to be modified in order to be
both practical and to represent the necessity of the
circumstances we're in. There needs to be some changes from the
UCMJ, if we use that as the baseline. I think everybody
acknowledges that. The argument or discussion or debate would
be over what those specifics need to be. For those who believe
that we should use the order number 1 as the baseline, I think
they would acknowledge there need to be changes following the
Supreme Court in that. For me, what the Supreme Court
suggested, it seems to me, quite clearly, is that the rules of
court-martial should apply unless there's a showing of
necessity of impracticability.
That's where I'm coming from. But that's one Senator. I'm
not going to ask a lot of the specific questions which I would
ordinarily ask if I had more time. Also, given the fact that
there are so many specifics that need to be addressed, I think
you could just barely skim the surface here this morning,
regardless of what your starting point is. I would rather, I
think, see not just the witnesses in these two panels, but
other people who aren't here, work and make recommendations to
us to list the specific changes from whatever baseline is begun
with that ought to be considered by Congress.
But I do have a couple of other questions, beside the items
that I'm not going to ask about.
Let me start with you, Mr. Carafano. In terms of Common
Article 3, you believe that we should acknowledge that is going
to be followed by us?
Dr. Carafano. Yes, I don't think it's a relevant issue for
discussion. The Supreme Court has ruled that Common Article 3
is appropriate, that Common Article 3 is part of the U.S. law.
I would caution against trying to revise U.S. law to somehow
reinterpret Common Article 3. I don't necessarily see that as
an enormous obstacle in moving forward with implementing
military commissions.
Senator Levin. You believe the Supreme Court requires us to
continue to abide by it, and you have no problem?
Dr. Carafano. Well, whether I believe the Supreme Court
made the right decision or not is really irrelevant. They have,
and that's the rule of the land.
Senator Levin. All right.
Mr. Fidell, just in terms of your organization, one of the
issues which we are going to need to address is whether or not
Congress is going to have to approve whatever the product is,
or whether we just basically delegate this to the President
under some kind of more general rubric. It seems to me it is
essential, if we are going to have the kind of credibility that
we all want in this product, that Congress be involved in the
adoption of a product, and not simply delegating the product to
the executive branch and them simply say, ``Notify us of what
you're doing.''
Your organization, subject to your qualifications, which I
listened to very carefully this morning and frankly welcomed--
suggested there be a notice to us of what, basically, the
deviations are from whatever the baseline is. I think that
would put us right back in the soup that we were in or could
lead to the same problem that the Supreme Court had to say was
not a satisfactory outcome.
So, I'm wondering if your organization could follow what
you suggested might be the order of the day here. Namely, to
review that recommendation, that there simply be notice, and,
in any event, whatever of you or the next panel or others that
know about our invitation provide to us. If you would address
that specific issue in those comments that you submit to us
about what role Congress should have, in terms of legislating
the deviations from whatever baseline it is we start from.
Mr. Fidell. Right. There's no question, Senator Levin, that
Congress could take certain things off the table. On the other
hand, I also think there's no question that Congress cannot
legislate every jot and title of the system, because,
otherwise, this is what I'll call the Military Commissions Act
of 2006, or whatever it's going to be called, is going to be
the size of the Manual for Courts-Martial, which I think would
be preposterous.
I believe that the sense of our organization is, there's
always going to be some presidential rulemaking. It may be
interstitial. The question is, How much? Which is going to be
the tail here, and which is going to be the dog? You're
suggesting that maybe what we thought of as the dog ought to be
the tail.
Senator Levin. No, I'm suggesting there was no dog in your
recommendation.
Mr. Fidell. On that, I'm going to respectfully disagree,
because we wrote it with a view to build some teeth in, while,
at the same time, being respectful for the traditional sphere
that Congress has recognized for presidential decisionmaking in
the military justice area.
Senator Levin. Well, no. As I remember, the teeth were that
there would be judicial review of any deviation, and that that
would be a matter which could be raised on an appeal. But that
just would seem to me to be endless litigation instead of
trying to resolve some of that in advance.
In any event, rather than pressing you further, if you
could ask your organization to reconsider what the role of
Congress should be, upfront, in terms of approval of whatever
part of the dog you think should be legislated, it would be
helpful. I would ask the same for anyone who submits
recommendations to us. What needs, in your view, to be
legislated, upfront, as part of whatever the general rules are,
the fairly specific rules are, the very specific rules are? If
you could make that part of our recommendations. In your case,
if you would, Mr. Fidell, particularly see if your organization
has anything further. I would invite, as one Senator, a review
of what was in that July draft and to see whether you want to
implement that further. But, I must tell you, I react to the
suggestion that this be judicially reviewable, where there is a
deviation from the manual as really an invitation to endless
litigation. We'd be in a much stronger position if Congress put
an imprimatur on items rather than simply saying they would be
judicially reviewable without that imprimatur.
Mr. Fidell. You make a good point. I do believe in the
substance of judicial review of agency action. That's how I
make my living. That's what I do for a living. I think the
Federal courts, the Court of Appeals for the DC Circuit, when
you go there, and you say that the Widget Commission has done
something that's arbitrary and capricious, you'll get heard.
You may not always get any traction with it, but you can
certainly get heard.
Senator Levin. I agree with that. Do you agree with the
second part of what I said, though, that in terms of any review
which is sought, that the deviation would be in better position
if we had congressional imprimatur.
Mr. Fidell. Oh, absolutely. Of course, of course. There's
no question about that. The question is striking a balance. If
I can wax philosophical here for 1 second, the subtext for this
colloquy right now, and, really, in a way, for this morning's
panel testimony as a whole, is how the relationship between the
executive branch and Congress plays out. The result of your
efforts in this committee, with this legislation, will be an
index of those relationships. They've very elusive, but they're
going to come to earth in this context. Where the balance is
going to be struck in this context, where we're no longer
acting on a clean slate or engaging in head games. We're
talking about real cases, we have a decision on the merits by
the Supreme Court of the United States, it's not something
where somebody sat down with a clean yellow pad in 2001 and
created a set of rules. It's going to be a manifestation of the
substantiality of Congress's power and how that power meets and
interacts with the power of the President of the United States.
Where that line is going to be, you all will work out. There
will be a vote on it someday. But I think I'll call it a
friendly amendment, your friendly suggestion is one that NIMJ
will take very seriously. Frankly, we're flattered that you
think it's worth asking for our views on this.
Senator Levin. I want to thank all of you for your
testimony. It's really been a very helpful panel. We thank your
organizations for the efforts that they make to help us sort
this all out.
Chairman Warner. Thank you, Senator Levin. Thank you very
much.
We'll go from one side to the other, in our tradition.
Senator Talent, then Senator Dayton.
Senator Talent. Thank you, Mr. Chairman. I'll try and be
brief. I know you have another panel.
Mr. Mernin, you mentioned that in the development of the
Geneva Conventions, even Josef Stalin participated in the
negotiation of it.
Mr. Mernin. Senator, I didn't mean to speak as a historian
on it, but it strikes me that the era was a particularly
interesting era for the development, and that the Soviet Union
were signatories, and we did end up with the Article 3. All
that leads me to just draw an inference that there was
something.
Senator Talent. You're not suggesting that Marshal Stalin
actually followed the Geneva Conventions in his affairs, are
you?
Mr. Mernin. No. Again, I'm not a student of history, and I
wasn't trying to suggest that we model ourselves after him.
Senator Talent. I don't think we have to be too good a
student of history to understand that he didn't. Is it possible
that he agreed to the Convention thinking that we would follow
it and he would be free to do whatever he wanted?
Mr. Mernin. Senator, I've met with this response, myself,
when I've asked, ``Is it possible?'' Anything's possible. I
wasn't trying to give a history lesson.
Senator Talent. Yes, I think it bears on it, because one of
the sentiments I've heard expressed is that if we do things,
and you're not fully saying this, but I want to bring this to
light. The suggestion that if we do things a particular way,
and are particularly careful, that, therefore, our enemies in
this war are going to be particularly careful with our
prisoners. Do you think it's going to influence what the
terrorists do with our prisoners?
Mr. Mernin. Senator, you make an interesting point. But I
really think that, to the extent we've made a corollary
argument on that, we're talking about the next war, and not
necessarily what these particular terrorists are going to do
tomorrow. It's about doing what's right, and it's about
protecting the future.
Senator Talent. Yes, I certainly agree that the conflict
is, in part, between narratives of the world, and we want to be
faithful to our narrative of the world to influence, in the
longer-term, the direction of the world. I do also think,
however, there is such a thing as deep evil in the world, and I
don't think that people who are possessed of that evil, or
believe in it, are necessarily going to be influenced by what
we do. I think we have to keep that in mind.
We had testimony the other day from a number of JAGs who
were pretty much of the opinion that they didn't know what
process ought to be applied in these cases.
Now, Ms. Bierman, as I recall, you were saying that,
``Well, the law of due process is pretty well-developed, and we
all know what it is.'' In fact, we really don't know what it
is, as applied to particular cases, do we? There is a
considerable amount of uncertainty, even in the application of
due-process concepts in American law, much less in this
context.
Ms. Bierman. With all due respect, Senator, I said, ``We
really don't know what due process is, but we keep trying.'' We
can't sum it up quickly, but people still believe in it, and
they keep working it out. So, I was not saying we know what due
process is.
Senator Talent. Right. But I understood you to say that
there were these concepts that had been around for a long time,
we had a very substantial body of law, and that we knew what it
was. Isn't it maybe whether you said it or didn't say it,
mightn't it be more accurate to say that sometimes we know what
it isn't, and sometimes we know what it is, and then there's a
big gray area? Would you agree with that?
Ms. Bierman. I would agree with that, Senator, with the
caveat that we still have to work our way through the gray area
and can't toss up our hands.
Senator Talent. Now, there are other considerations
involved in this. I think Dr. Carafano touched on this. As we
work our way through the gray area, particularly in the context
of a war, would you agree that we also have to pay attention to
whatever tactical objective we may have in the war at that
point? In other words, it is relevant, is it not, whether a
particular process contributes to our ability to get the
intelligence that we need, or otherwise win the war? Would you
agree that that's relevant to our consideration of what process
is appropriate in a particular case?
Ms. Bierman, maybe you can answer, and others can comment.
Ms. Bierman. I'm sorry, Senator, I thought you were
addressing the question to other panelists.
Senator Talent. What I'm saying is that in the application
of due process in particular cases, there are gray areas. In
deciding what we ought to do in particular areas, isn't it
relevant for us to consider what is going to help us in
actually winning the war? Would you agree that that's a
relevant factor in deciding what due process is appropriate in
a particular case?
Ms. Bierman. I do, Senator. But, at the same time, I am
going to go back to what I said before there's always a bottom
line, at some point.
Senator Talent. Yes. There are things that we pretty
clearly know we don't want to do. There are things we pretty
clearly know are appropriate. Then there is a gray area. One of
the conclusions I'm reaching about this is that we're really
living in this gray area now. One of the concerns I have is, if
we try and pretend to a certainty that we don't have, it may
affect, on the ground, what actually happens, in ways that are
unproductive.
Dr. Carafano, you look like you're eager to say something.
Dr. Carafano. Sir, I wanted to agree with your statement
and draw another historical example. Look at the Nuremberg
trials. I don't think, today, by a lot of standards, people
would argue that the Nuremberg trials actually didn't meet the
criteria of Common Article 3. But, as a historical judgment,
people look back at them, and they say they were equitable,
they say they redressed a legitimate evil, and they say they
sent a message to the world on what was the appropriate
behavior. I think the lesson of the Nuremberg trials is we have
to think relatively broadly into what's an acceptable judicial
process. If we bog down into the nit noise of, ``Well, it's not
legitimate unless you have this exactly small thing, then it's
illegitimate,'' that's putting the rule of law ahead of
reality.
Senator Talent. I'm particularly interested in how all this
may affect interrogations, as opposed to trying or processing
detainees that we decide we want to bring before some kind of
trial situation. Now, my understanding is that the Court's
decision leaves open the question of the extent to which
Article 3 applies to interrogations. Is that correct, in your
judgment, or do you think the Court decided one way or another
pretty clearly?
Ms. Massimino. I think that the Court's embrace of Common
Article 3, Common Article 3 deals with both the standards for
trial and interrogations, but what's more relevant from my
perspective is that Congress has spoken on this already, and
quite clearly. So, that piece of this puzzle has been,
thankfully, largely resolved, in my view. Now what's needed is
the implementation of that standard in operations manuals,
field manuals, so that people understand clearly what the
standard is that Congress passed. We have crossed that
threshold, I think, already.
Senator Talent. We prohibited cruel or inhumane punishment.
I was going to focus on the ``degrading'' provision, the
provision in Article 3 against humiliating or personal
outrages, humiliation, or degrading. Is it your view that that
is an objective standard that applies, regardless of the
cultural or personal background of the prisoner, or do you
think that might vary in different circumstances?
Ms. Massimino. I think that the ICRC has said in the
Convention Against Torture, in interpreting the torture
convention, that there's only a certain amount of specificity
you can get to with our criminal law, that there is a totality-
of-the-circumstances question. In the debate, as I'm sure you
recall, last year, about the DTA. It was for the very reason
that it's going to be different, what you do to one person may
be torture or cruel, inhuman, and degrading treatment and the
circumstances may be different for another. We have wisely
constructed a system that drives people away from the edge. I
think that's what the Army Field Manual on Intelligence
Interrogation traditionally has done, and I understand the new
manual will do the same.
So, I think that there is a recognition that there will be
some gray areas, whether it's in Common Article 3 or in the
standard on cruel, inhuman, and degrading treatment. That
doesn't mean that we should be creating more gray areas.
Senator Talent. I liked your comment that we drive people
away from the edge, because I think that's a point--can we
define where the edge is?
Ms. Massimino. I think, as clearly as we can, Congress has
done that.
Senator Talent. Yes. So what you're saying is, we're
building into the system a bias against going near the edge,
so, if the edge, for example, might be a reference to the
Quran, or mistreatment of the Quran in front of a prisoner, we
are driving our interrogators away from that edge. So, do you
all have a concern that perhaps we are biasing the system
against the use of more aggressive, or perhaps effective,
interrogation techniques by insisting that they stay away from
the edge, but then telling them we can't define where the edge
is?
Ms. Massimino. I'm not concerned about that, because I
think Congress did its job last year in defining that, and had
this very debate.
Senator Talent. Yes, but you just said we didn't define it,
we left a considerable amount of discretion involved.
Chairman Warner. We're going to have to ask your panel to
bring to a conclusion their testimony.
Senator Talent. I'm sorry, Mr. Chairman. I said I was going
to be brief.
Ms. Massimino. I apologize, sir.
Senator Talent. Wait a minute. This is the Senate. That
happens rather a lot. [Laughter.]
Mr. Fidell. Senator?
Chairman Warner. I want you to finish.
Senator Talent. I will desist.
Chairman Warner. Please say your point, but I see a number
of hands being raised here, and I'm just concerned about the
time.
Senator Talent. Yes, I'm sorry, Mr. Chairman.
Mr. Fidell. I just want to, if I can, refer you, Senator,
to what the President has stated on the subject, or a closely
parallel subject, in the current Manual for Courts-Martial. As
I said before, Article 93 prohibits cruelty and maltreatment.
He has prescribed an objective standard. That's the current
state of the law in the United States.
Senator Talent. Okay.
Thank you, Mr. Chairman.
Chairman Warner. I thank the distinguished Senator from
Missouri. I appreciate very much your active participation in
this matter.
Senator Talent. I apologize to the Chairman for trespassing
on my time.
Chairman Warner. That's all right. I think everybody has
thus far. You'd have been the sole one that has. [Laughter.]
Senator Talent. Because we have an objective standard for
that rule here, I know. [Laughter.]
Chairman Warner. That's right.
Senator Dayton, you had a question you wished to ask.
Senator Dayton. Thank you, Mr. Chairman.
I say this has been a very valuable hearing. I regret that
it seems to have been prejudged by some, as reflected in at
least one of the opening statements of my colleague. We're at
this point, and I think it's important to reiterate first,
because the Supreme Court determined that the Bush
administration exceeded its constitutional authority, and
second, because the commission hasn't worked. Unless I'm
misinformed, based on your comments and also the hearing last
week, the commission has not brought a single case to trial.
Unless it's the unstated objective of the administration just
to hold people indefinitely, because they've been classified as
enemy combatants, without any review process whatsoever and
that's occurred here now for some 4\1/2\ years, in some
instances. Otherwise, the commissions have failed in their
stated purpose, which is to bring that due process to bear on
these individuals.
I think this is another example of a very unfortunate
predisposition of this administration, to reject years of
collective wisdom and careful effort on the part of its
predecessors of both Republican and Democratic administrations,
as we saw with the rejection, when started, in the arm control
agreements or the International Environmental Accords, and now
we see with the UCMJ and Common Article 3 of the Geneva
Conventions. In those instances, not to critique or to try to
improve upon what has been set forth before them, but just to
discard them. Then we find ourselves disrespected in the eyes
of much of the rest of the world, and we wonder why.
I'm reminded of the old adage, ``We judge ourselves by our
intentions. Others judge us by our actions.'' I think clearly
we believe, and we believe properly, that our intentions are
well and good. But there is a dissonance between how we
perceive ourselves and how we're perceived in the eyes of both
our friends and allies, as well as our adversaries around the
world, as well as those that are subject to being persuaded one
way or the other. I think this administration has given scant
thought to the implications of these decisions and actions on
how we're perceived, and that has a direct bearing on how other
nations act in ways that affect our national security, you and
others have emphasized.
I guess one question, or clarification, I'd just like to
make, because we're talking about a choice or perceiving a
choice in what our starting point is, in terms of how we
approach this, whether it be the President's order, Military
Order Number 1, or whether it be the UCMJ. Mr. Mernin, if I'm
reading from your testimony here, and if there's any
disagreement with this, please let me know, or by anyone else.
You said, ``After the President issued the military order, of
the 10 or so follow-on directives establishing the detailed
rules for military commissions, only one was released for
public commentary. That directive concerned establishing the
elements of offenses, and we offered comments, as requested.
The DOD subsequently refused to make public the comments that
were received.'' If we have the President's directive, but we
don't have any follow-on directive establishing those rules,
and we don't have the public comments that the DOD received,
then it may have had very valid reasons for taking that
position. I don't know how we start with the commission, which
hasn't acted yet, and when we don't know all of the details of
what its authority and rules and procedures are. How can we
possibly evaluate that?
Mr. Mernin. No, perhaps I was inartful. The follow-on
directives were issued, but they were issued without the
opportunity for public comment.
Senator Dayton. Okay.
Mr. Mernin. Except in one instance.
Senator Dayton. I see. Okay, so, they have been made
public? Yes?
Mr. Fidell. Senator, maybe I can intervene on this. The
history of this and it's somewhat discussed in a law review
article by an author whom modesty prevents me from further
identifying.
Senator Dayton. We're not modest here. Please don't feel
constrained. [Laughter.]
Mr. Fidell. The background is this. The administration,
with the exception, I believe, of Military Commission
Instruction Number 2, which defines crimes and elements of
offenses and, I think, one other, issued the rules without what
we all assume is the customary notice and opportunity for
comment that you associate with Federal rulemaking. We made a
Freedom of Information Act (FOIA) request, ``we'' being NIMJ,
made a FOIA request for all of the comments that the
administration received. At least that was one way to find out
what this was all about. We received many comments, but the
administration withheld comments, I think, 10 people who were
most directly consulted privately in the preparation of the
rules.
Senator Dayton. I need to ask you to conclude here.
Mr. Fidell. Yes, I will.
Senator Dayton. My time is expiring.
Mr. Fidell. I will, immediately. Just to tell you that the
matter is the subject of a decision by the U.S. District Court,
which we are about to appeal to the U.S. Court of Appeals.
Senator Dayton. Okay.
Mr. Fidell. For the DC Circuit.
Senator Dayton. All right. Since my time is winding down
here, and I want to ask one other question here, I think it's
important to go back to this order that the President issued
and just remind ourselves of the sweeping nature of it. It
states here that this will apply to an individual as well,
subject to this order, shall mean an individual who is not a
United States citizen with respect to whom I determine from
time to time in writing that first of all, he has reason to
believe that such individual, at the relevant times, was, or
is, a member of the organization known as al Qaeda, et cetera.
Second, it is in the interest of the United States that such
individual be subject to this order. This is an incredible
reach of determination, subject solely to the President of the
United States. To which, then, proceedings apply that can
include life imprisonment or death. So, you are talking about a
scope here that is just extraordinary.
I guess my question is, can we provide these proper due
process and individual rights and protections and not
sacrifice, which no one wants to do here, I believe the
national security interests of the United States? I wish we had
another 20 minutes, and we don't, for you to respond as to
exactly what it is in this that pits one of those objectives
against the other. In the particulars, as one of you used the
word, but is there anything that any of you believes should be
established that says that any of these individuals we are
holding are not innocent until proven guilty? We can hold them,
from what we were told last week, by the judge advocates. We
can hold them, whether they're determined, by whatever process
we use, to be, ``guilty or innocent,'' even if they're innocent
thereafter. That's where I respectfully question my colleague,
Senator Inhofe. That's certainly the opposite of a right that
he claims is not accorded to American citizens, regarding
criminal actions, we're applying to these individuals.
But, does anybody suggest that we start with a proposition
that these people are guilty until somehow demonstrated
innocent? Is that antithetical to our national security
interests in any way?
Ms. Massimino. That we presume that they're guilty?
Senator Dayton. Well, I'm stating in the opposite.
Ms. Massimino. Yes.
Senator Dayton. Is there any need for an exception to the
principle that they are not innocent until proven guilty?
Ms. Massimino. No, I don't believe there is. I think that
you've heard from most of the panelists here that principle is
one of the hallmarks of a fair judicial proceeding. I think
you're right to go back and look at and notice the sweeping
nature of the original order, because it's relevant to the way
in which you all will approach the task at hand.
I believe that the military orders and instructions that
came out to implement that order were to be fair, an attempt to
take that fundamentally flawed structure, which you just read
from, and to try to make it fairer and to better approximate a
system of justice that the military officers were involved in,
in producing those rules, would be more comfortable with. They
ultimately failed. But I think that we can learn a lesson from
that approach and say there were many of those engaged in that
effort who would have preferred to have started with the UCMJ.
Now we have a second chance.
Senator Dayton. As you stated in your opening testimony,
and I appreciate that.
My time has expired, too. I thank you. It's been an
excellent set of presentations and discussion.
I apologize, in advance, to the second panel. I have to
leave for another commitment, but I'll pass it on to Madam
Chairman.
Senator Collins [presiding]. Thank you.
First, let me explain and apologize to the panel for not
being here for your statements and the previous testimony. I
was chairing a hearing in another committee, and we don't yet
allow cloning, although it would be helpful, at times.
We have heard a great deal of testimony about how to best
craft a system to prosecute the enemy combatants. I've been
struck by the number of times the military commissions created
by the President's order deviate from the procedures with
courts-martial. One area that has caused me considerable
concern is the dilemma of, how do we handle classified
information that is relevant to the case? The Supreme Court
seems to be telling us that we cannot keep certain evidence
from the accused or their civilian attorneys, but I am also
concerned that we not compromise sensitive intelligence sources
or methods, or reveal those in the process.
I'd like to go across the entire panel and ask each of you,
what specific guidance can you give us to allow us to craft
rules regarding evidence that strike an appropriate balance, in
your judgment, between the rights of the accused to have access
to relevant evidence and our country's need to protect
intelligence sources and methods?
Ms. Massimino. I could comment briefly on that. I would
advise, first of all, that we not jump to a proposal to deviate
from the rules on this question of classified evidence or on
any of the other issues that have been mentioned by others as
reasons why the UCMJ and courts-martial procedures are
inappropriate. I think and I am not the expert on this panel,
so I defer to the military law experts, and, on the next panel,
I'm sure you'll hear but I believe that we've approached this,
to date, with a somewhat impoverished view of the flexibility
of the military justice system that we have. I think it would
be more productive, and result in a stronger product, if we
first try to test the limits of the existing system and look at
the flexibility of the rules to deal with classified evidence
before we put that on our list of things that we need to draft
to deviate from the UCMJ. I will leave it to my colleagues to
discuss the specifics.
Senator Collins. Thank you. If we could just go down the
entire panel.
Ms. Bierman. Senator, thank you for that question. I'm
going to echo comments of my colleague, but also approach it
from 30,000 feet, which is, you start with the fundamental
right of an accused to see the evidence against him. As you
suggested, you balance that with national security. There's
another really good reason to look, again, to the rules that
the court-martial system has developed over the decades, and
that's because it's a system that the people who will be
implementing the military commissions are very familiar with.
They know it inside and out. They know how to do it. There's a
question of legitimacy. If the United States were to craft
rules specifically for these detainees, these accused, to
ensure the convictions, there's a huge legitimacy issue.
When we talk about classified, I think we should not forget
that some of the interrogation techniques that have been used
against some detainees who may have provided evidence against
some of these accused, may be, in fact, in that realm. When
we're talking about classified, we should distinguish between
and think about the tension between information that is of
national security interest, because it truly is about our
national security, and information that is about something that
should not have happened in the first place.
I just wanted to point that out. Thank you, Senator.
Senator Collins. Thank you.
Mr. Fidell.
Mr. Fidell. Thank you, Senator.
The short answer to your question, Senator Collins, is
there's no need to reinvent the wheel. The President of the
United States has already covered this entire field amply in
Military Rule of Evidence 505. I have, anticipating your
question, brought with me an analysis of the application of
Rule 505. I believe it will provide all the comfort you might,
or any Senator might need, on the question of classified
information.
With the chairman's, or acting chairman's, permission, I'd
like to offer this. You are the acting chairman?
Senator Collins. Right. Temporarily.
Mr. Fidell. Then, ma'am, if somebody can take this from me.
Senator Collins. It will be included in the record.
Thank you.
Mr. Fidell. Happy to provide it for the record.
Senator Collins. Thank you. That's very helpful.
[The information referred to follows:]
Mr. Mernin. Senator, I would defer to Mr. Fidell on this.
He's my go-to guy on this kind of thing. But I would just point
out that, first and foremost, there is the fundamental right to
have access to the evidence which is being used against you. We
can't, in a fundamental way, deviate from that. By that, I mean
if there were a prosecution which hinged upon a piece of secret
evidence that it was felt just absolutely could not be shared
with the defense or defense's counsel, then at that point, in
my view, you have problems with the prosecution, at that point.
Other than that, you find ways to deal with it through
established procedures of redaction, in camera review, the
court and the parties review the same evidence, and you deal
with it. If you reach a breaking point on a particular
prosecution, then you don't have a prosection.
I don't want to call anything not a real problem, but there
aren't going to be, postured as we are now, hundreds of
military commissions trying these cases. There have been
various estimates on the number of detainees where what they've
alleged to have done rise to the level where we're going to see
these law-of-war commissions. I don't think this is going to be
as big a problem, in our context, as one might think.
Senator Collins. Dr. Carafano?
Dr. Carafano. I don't think it would be a major issue. But
what I'd like to do, to be as precise as possible, is provide
my answer for the record.
[The information referred to follows:]
The administration and SASC also differ with respect to the rules
of evidence, compulsory self-incrimination, and handling classified
information. The appropriate compromise is to defer to the
administration as it seeks to adopt these procedures to ensure that
U.S. national security is not compromised in the course of the trials.
Notably, the administration approach includes robust appellate
procedures that would allow defendants to appear through a Court of
Military Commission Review to the DC Circuit Court and, by certiorari,
to the Supreme Court. This appeal process is an adequate guarantee that
procedures used to withhold classified information from defendants are
not abused.
Senator Collins. Thank you.
Senator Levin, back to you.
Senator Levin. I think Chairman Warner wanted to dismiss
this panel and thank them very much for their great testimony,
and bring on the next panel.
Senator Collins. The Senator did that eloquently. I will
just second his thanks. We very much appreciate your testimony
today. This is a complicated issue, and it's very helpful to us
to have your expertise. Thank you.
I would call the second panel forward, if I had the
information to do so from the chairman. [Laughter.]
I'm very pleased to welcome our second panel of
distinguished legal experts. Neal Katyal is a professor of law
at Georgetown University. David Schlueter--I'm not sure if I'm
pronouncing that correctly, is professor of law and director of
advocacy programs at St. Mary's University. Scott Silliman is a
professor of the practice of law and Executive Director of the
Center on Law, Ethics, and National Security, at Duke
University.
So, we'll start with Professor Katyal.
STATEMENT OF NEAL K. KATYAL, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY
Mr. Katyal. Thank you very much, Senator Collins, Chairman
Warner, Senator Levin, and members of the committee, for
inviting me here. I appreciate the careful attention that
Congress is devoting to military commissions. Chairman Warner,
in particular, I appreciate the opening remarks you made. I
believe that this committee is pursuing exactly the right
approach in last week's and this week's hearings.
On November 28, 2001, I testified before the Senate
Judiciary Committee about the President's then-2-week-old
commission plan. I warned that Congress, not the President,
must set this commission plan up. If Congress did not, the
result would be no criminal convictions and a court decision
striking these tribunals down. 1,693 days have elapsed since
that testimony. During that entire time, not a single trial
took place, nor was a single criminal convicted. It took over 2
years before anyone was even indicted, and 3 weeks ago, the
Supreme Court invalidated this scheme.
I did not come here to gloat. The decision to file a
lawsuit against the President was the hardest one I've ever
faced. I previously served as National Security Advisor at the
Justice Department, and my academic work extolls the idea of a
strong President, and it builds on the unitary executive theory
of the presidency. My work in criminal law centers on the need
for laws to benefit prosecutors.
In the intervening 4 years, I have never once waivered from
my belief that it is the prerogative of this body, Congress,
not the President, to set these rules. I have also learned I
was wrong when I testified in November 2001. I didn't know much
about courts-martial at the time. So I emphasized in my
testimony that, until Congress acted, the baseline would be
civilian trials. But I've had the privilege of studying the
military justice system now for the past 4 years, and I've
learned why they are the envy of the world.
The Supreme Court's Hamdan decision emphasized that both
courts-martial and civilian courts can try terrorism cases.
Justice Stevens's opinion put it simply, ``Nothing in the
record before us demonstrates that it would be impracticable to
apply court-martial rules in this case.'' Justice Kennedy
agreed, ``Congress has prescribed these guarantees for courts-
martial, and there is no evident practical need that explains
the departures here.'' Indeed, there have been 370 courts-
martial in Iraq and Afghanistan since 2002, compared to zero
military commission trials.
I would urge Congress to heed the views of the Supreme
Court Justices here, for four reasons:
First, we are talking about only a handful of people here.
Ten have been indicted thus far, and we hear different numbers.
Today, one of the prosecutors told me maybe 30 more people
would be indicted in the military commission system from
Guantanamo. We should be wary of legislating for such a small
group, particularly when there is no exigency. As the Hamdan
decision made clear, these individuals will continue to be
detained, under existing law, as enemy combatants. Here, we are
talking about criminal trials, not detention. That's the issue
before this committee. The function of a trial, as Justice
Douglas reminds us, is as follows, ``'The function of a
prosecutor is not to tack as many skins of victims as possible
against the wall. His function is to vindicate the rights of
the people, as expressed in the laws, and give the accused of
crime a fair trial.'' I don't believe we can say that about the
existing military commission system.
Second, there is no empirical evidence at all to show that
the existing court-martial system can't handle these cases.
Before changing the rules, we should study and attempt to try
to use the existing system. That is particularly so because, as
my prepared statement goes into detail at pages 7 to 11, the
criticisms about hearsay and other evidentiary claims that have
been levied against the court-martial system seem to me to be
substantially overblown.
Third, any amendment to the UCMJ is bound to draw a legal
challenge, and the greater the deviation from the structure and
procedure of a regularly constituted court, the more likely it
is that it will not only be challenged, but invalidated. Any
such court challenge would delay or cast into uncertainty any
trial conducted, and that'll leave everything gummed up for yet
another number of years. In any such trial, moreover, the trial
system would have to make up the rules as it went along, with
all the inefficiencies and other problems that entails.
Because we are talking about the most awesome powers of
government, the death penalty and life imprisonment, the
Federal courts will carefully scrutinize these procedures. The
only way to ensure the system is not tossed out 4 years from
now is to use one that is battle-tested and approved already.
Courts-martial and civilian trials meet these tests, military
commissions do not.
Finally, we should be wary of any attempt to create two
tracks of justice, one for us and the other for them. I believe
Senator McCain said it exactly right last week when he warned,
``If we somehow carve out exceptions to treaties to which we
are signatories, then it will make it very easy for our enemies
to do the same in the case of American prisoners.''
There is a grave risk that adopting a different system for
this handful of prisoners will dramatically undermine the image
of the United States as a fair and just nation. It will look
like victor's justice, a spoiled system, instead of the rule of
law.
Any claim to benefit from legislation has to be weighed
against these practical difficulties. To those, has to be added
the sorry experience with the military commission system, a
system in which I have served now for several years, a system
that its own prosecutors have said is fundamentally unfair. By
departing from the existing institution, and, in particular,
the proud Court of Appeals for the Armed Forces, and the
existing rules, delay, not bringing folks to justice, will be
the inevitable result.
As the chairman has said repeatedly, the eyes of the world
are upon us. What Congress does here may establish a legal
framework for generations to come. This is a crucial moment,
not just for this body, but for the Nation, as a whole. In my
judgment, we should proceed with caution and study, and do
everything in our power to make sure we need a new system
before gambling once again on an unproven one. Given the
existing numbers of different ways in which people can be
prosecuted today in courts-martial and civilian trials, and
given the detention power which already exists and is given to
the President, the first rule should be to do no harm. We had
not had a military commission trial in 55 years. If this body
has to rush legislation through to meet an October deadline, it
seems to me quite dangerous results may unfold. The safest
course, it seems to me, given the existing detention power, and
given the existing prosecution alternatives, is to do no harm.
Let's do it right the first--or, I guess, rather, we could say,
the second time, at this point, and doing it right is also the
fastest and best way.
My closing to you, Senators, is the same as my closing to
the United States Supreme Court, which is to quote the great
American patriot, Thomas Payne: ``He that would make his own
liberty secure must guard even his enemy from oppression, for
if he violates this duty, he establishes a precedent that will
reach unto himself.''
Thank you very much.
[The prepared statement of Mr. Katyal follows:]
Prepared Statement by Professor Neal Katyal
introduction
Thank you, Chairman Warner, Senator Levin, and members of the Armed
Services Committee, for inviting me to speak to you today. I appreciate
the careful attention that your committee, and that Congress as a
whole, is devoting to the issue of military commissions.
On November 28, 2001, I testified before the full Senate Judiciary
Committee about the President's then 2-week-old plan to try suspected
terrorists in ad hoc military commissions. I warned that committee that
Congress, not the President, must set up the commissions, and that if
Congress did not, the result would be no criminal convictions and a
Supreme Court decision striking these makeshift tribunals down.
One thousand six hundred ninety three days have elapsed since my
testimony before the Judiciary Committee. During that entire time, not
a single trial took place, nor was a single criminal convicted, in
these military commissions. It took over 2 years before anyone was even
indicted in a military commission. On June 29, 2006, the Supreme Court
invalidated this scheme devised by presidential fiat.
I did not come here to gloat. The decision to file a lawsuit
against the President was the hardest professional decision I have ever
faced. I previously served as a National Security Adviser at the United
States Department of Justice (DOJ), and my academic work extols the
idea of a strong President in a time of crisis, adopting the ``unitary
executive'' theory of the Presidency. My work in criminal law centers
on the need for tough laws that benefit prosecutors, and ways State and
local governments can innovatively control crime.
But, despite the fact that I think courts should defer to the
President overwhelmingly, I felt the decision to adopt military
commissions by executive decree encroached on the constitutional
prerogatives of this body, the Congress of the United States. So I
filed suit, along with Lieutenant Commander Charles D. Swift of the
United States Navy and Perkins Coie, a law firm in Seattle. I spent the
last 4 years working on what ultimately became the Supreme Court's
decision in Hamdan v. Rumsfeld.\1\ I argued that case before the
Supreme Court of the United States, as well as the United States
District Court for the District of Columbia, and the United States
Court of Appeals for the District of Columbia Circuit.
---------------------------------------------------------------------------
\1\ Hamdan v. Rumsfeld, 548 U.S. (slip op.) (2006).
---------------------------------------------------------------------------
In the intervening 4 years, I have never wavered from my belief
that it is the prerogative of Congress, not the President, to create a
court system. But I have also learned that I was wrong when I testified
in November 2001. I didn't know much about courts martial at the time,
and so I emphasized that until Congress acted, the baseline would be
Federal civilian court trials.
I've had the privilege of studying the military justice system over
the past 4 years, and have learned why they are the envy of the world.
The Supreme Court's Hamdan decision emphasized that both courts martial
and civilian courts can try terrorism cases. Justice Stevens' opinion
put it simply, ``Nothing in the record before us demonstrates that it
would be impracticable to apply court-martial rules in this case.'' \2\
Justice Kennedy agreed, noting that ``Congress has prescribed these
guarantees for courts-martial; and no evident practical need explains
the departures here.'' \3\ Indeed, there have been 370 courts-martial
in Iraq and Afghanistan since 2002, compared to zero military-
commission trials.\4\
---------------------------------------------------------------------------
\2\ Hamdan (slip op. at 60).
\3\ Id. (slip op. at 16) (Kennedy, J., concurring).
\4\ The delay cannot be blamed on civil litigation challenging the
tribunals, since the first injunction was not entered until November 8,
2004 and that injunction only applied to the Hamdan case.
---------------------------------------------------------------------------
I would urge Congress and this committee to heed the words of the
Supreme Court, and to employ our military justice system that this body
has so carefully and successfully designed. It has worked well for 55
years. In other words, if it ain't broke, don't fix it.
That said, we must also not lose sight of the fact that our
existing Federal civilian system has worked well in combating
terrorism. Indeed, the DOJ recently extolled its resounding success in
terrorism cases in Federal civilian court--where it has proceeded with
nearly 500 terrorism prosecutions.\5\
---------------------------------------------------------------------------
\5\ Remarks of Deputy Attorney General McNulty, American Enterprise
Institute, May 24, 2006.
---------------------------------------------------------------------------
I believe that the Hamdan decision--which invalidated the
President's system of military commissions--represents a historic
victory for our constitutional process, and, in particular, the role of
the United States Congress and Federal judiciary in our tripartite
system of government. But I am here to help you determine appropriate
steps, consistent with the Court's opinion, for identifying a process
that will handle cases against suspected terrorists held at Guantanamo
Bay and around the world and that will reflect our country's honored
commitment to fairness, to equality, and to justice for all.
I commend this committee, and the chairman in particular, for
proceeding along a very sensible and wise path. I believe the chairman
stated it perfectly last week:
[I]n my judgment, as a Congress, in this legislation, must
meet the tenets and objectives of that [Hamdan v. Rumsfeld]
opinion. Otherwise, such legislation that we will devise and
enact into law might well be struck down by subsequent Federal
court review. That would not be in the interests of this
Nation.
The eyes of the world are on this Nation as to how we intend
to handle this type of situation and handle it in a way that a
measure of legal rights and human rights are given to
detainees.
Remarks of Senator John Warner, Hearing on the Future of Military
Commissions to Try Enemy Combatants, July 13, 2006. The eyes of the
world are indeed upon us, and what Congress does here may establish a
legal framework for the war on terror for generations to come. We
should proceed with caution and study the problem first, and do
everything in our power to be sure that we need a new system before
gambling once again on an unproven one. Given the number of different
existing avenues for prosecution and detention of those at Guantanamo,
the first rule should be for this body to do no harm.
i. the flawed military commissions
To understand the appropriate next steps, I believe it is necessary
to highlight for the committee several of the fatal--possibly
irreparable--flaws in the military commissions under the President's
Order of November 13, 2001.\6\ I think that these defects illuminate
why any attempt to start with or ratify the President's Order would be
a serious mistake.
---------------------------------------------------------------------------
\6\ Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001) (hereinafter
``Presidential Order'' or ``Order'').
---------------------------------------------------------------------------
The purpose of a criminal trial is to test the Government's
allegation that a person has committed a crime. The goal of a trial is
not to secure a conviction, it is to convict the guilty. In serving
this purpose, a trial does not involve the detention power. As the
Supreme Court said in Hamdan, a true enemy combatant can still lawfully
be held regardless of a trial. The military commission's sole purpose
is to determine whether an individual is guilty of a crime. The only
way a trial can adequately prove guilt or innocence, to the American
people and to the world, is when it employs procedures that enable the
court to sift the facts from allegations, and that enable it to
demonstrate publicly a defendant's guilt--beyond a reasonable doubt.
Unless it does that, a procedure--whether one calls it a military
commission, a court-martial, or something else--simply does not count.
It is not a court in any sense that Americans would recognize. Such a
``trial'' would shame the proud traditions of both American military
and civilian justice.
As my colleague Lieutenant Commander Swift explained to the Senate
Judiciary Committee last week, the commissions consistently failed to
meet these proud traditions, both in design and in execution.\7\
Although the commissions were established pursuant to the President's
Order in November 2001, a prosecutor and defense counsel were not even
appointed until 2003. It took another year, until 2004, until someone
was even charged. Hamdan's case is instructive: he was captured in
2001, but the President did not designate him eligible for a commission
trial until July 2003. But he was not charged with an offense at that
time; rather, he was placed in solitary confinement and, despite a
demand for speedy charges, Hamdan was not charged with any crime for
another year.\8\ In fact, the Federal lawsuit in Hamdan v. Rumsfeld
preceded the filing of charges--one of the main demands of the lawsuit
was that Hamdan be charged because the prosecution was sitting on the
case while Hamdan was stuck in solitary confinement.
---------------------------------------------------------------------------
\7\ Hamdan v. Rumsfeld: Establishing a Constitutional Process,
Hearing before the S. Comm. on the Judiciary, 109th Cong. (July 11,
2006) (statement of Lieutenant Commander Charles Swift), available at
http://judiciary.senate.gov/testimony.cfm?id=1986&wit--id=5510
[hereinafter ``Swift Testimony''].
\8\ Hamdan, (slip op. at 4) (Stevens, J.).
---------------------------------------------------------------------------
The commissions denied Hamdan many fundamental rights, including
the right to be present at his own trial and to confront the evidence
against him. As Justice Stevens explained, the commissions startlingly
provided that any confrontation ``rights'' could be eviscerated at the
discretion of a single individual: ``The accused and his civilian
counsel may be excluded from, and precluded from ever learning what
evidence was presented during, any part of the proceeding that either
the Appointing Authority or the presiding officer decides to `close.'
'' \9\ The government created this gaping exception without ever
explaining how it could operate consistently with its assurance of a
full and fair trial.\10\ The reason that they did not offer a
justification on this point is clear: the two are patently
incompatible. The accused's right to be present and to confront the
evidence against him are indisputably ``the most fundamental
protections afforded not just by the Manual for Courts-Martial but also
by the Uniform Code of Military Justice (UCMJ) itself.'' \11\ As
Justice Scalia recently observed for the Supreme Court, ``It is a rule
of the common law, founded on natural justice, that no man shall be
prejudiced by evidence which he had not the liberty to cross examine.''
Crawford v. Washington, 541 U.S. 36, 49 (2004) (quoting State v. Webb,
2 N.C. 103 (1794)).
---------------------------------------------------------------------------
\9\ Id. (slip op. at 50).
\10\ Id. (slip op. at 71 n. 67) (``[T]he Government suggests no
circumstances in which it would be `fair' to convict the accused based
on evidence he has not seen or heard.'').
\11\ Id. (slip op. at 61).
---------------------------------------------------------------------------
The military commissions contained myriad other flaws that made
them unlawfully biased: they allowed the prosecution to withhold
exculpatory evidence from the defense. They dispensed with time honored
evidentiary standards, such as the prohibition against hearsay.\12\
They countenanced woefully inadequate rules to govern the impartiality
of proceedings and participants. For example, the Appointing
Authority--the very same individual who convenes and refers charges
against individuals to the military commissions--was given a
breathtaking amount of power over the establishment and proceedings of
the commissions: to select members who vote on guilt or innocence, to
oversee the chief prosecutor, to approve or disapprove plea agreements,
to close commission proceedings, and to answer interlocutory questions
from the presiding officer.\13\
---------------------------------------------------------------------------
\12\ See id. (slip op. at 51) (``Another striking feature of the
rules governing Hamdan's commission is that they permit the admission
of any evidence that, in the opinion of the presiding officer, `would
have probative value to a reasonable person.' Under this test, not only
is testimonial hearsay and evidence obtained through coercion fully
admissible, but neither live testimony nor witnesses' written
statements need be sworn.'') (internal citations omitted).
\13\ Id. (slip op. at 12-15) (Kennedy, J., concurring).
---------------------------------------------------------------------------
In addition to these procedural and structural flaws, the military
commissions suffered from a dangerous conceptual mistake. The
government wrongly asserted that the military commissions were not
bound to enforce the laws of war. This assertion--roundly rejected in
the Court's opinion--ignored Congress' clear mandate in the UCMJ, our
longstanding treaty commitments, the Supreme Court's precedent, and our
Nation's historical understanding that commissions must comply with the
laws of war.
This divergence from the laws of war was in no way hypothetical.
Hamdan was charged with an offense--conspiracy--that is not even
recognized in the laws of war.\14\ As Justice Stevens explained, the
Government ``has failed even to offer a `merely colorable' case for
inclusion of conspiracy among those offenses cognizable by law-of-war
military commission.'' \15\ Further, the government's assertion was
based on an erroneously cramped reading of the canonical statement of
the laws of war: the Geneva Conventions. There is at least one
provision of the Geneva Conventions that, regardless of whether a
conflict is between signatories, applies with ``as wide a scope as
possible''--including to the conflict with al Qaeda. That provision is
known as Common Article 3, because it was so essential as to be
included in each of the four Geneva Conventions concluded in 1949.\16\
Notably, Common Article 3 requires that Hamdan be tried by a
``regularly constituted court,''--which these irregular, ad hoc
military commissions cannot satisfy.
---------------------------------------------------------------------------
\14\ See id. (slip op. at 43-49) (Stevens, J.) (plurality).
\15\ Id. at 48 (plurality).
\16\ See id. (slip op. at 66). Of the four Geneva Conventions, the
most relevant is the Geneva Convention (III) Relative to the Treatment
of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, T.I.A.S. No.
3364 (``GPW'').
---------------------------------------------------------------------------
Finally, as if to underscore that Hamdan was at the mercy of a
hastily constituted system, rather than a regularly constituted court--
even these biased procedures were subject to change by the stroke of a
pen. Most notably, the Department of Defense (DOD) issued a new order
restructuring the military commissions just 1 week before the
government was due to submit a brief in opposition of certiorari.\17\
They changed the rules multiple times, including one change literally
on the eve of oral argument in the Supreme Court, when the Pentagon
issued a press release stating that it had prohibited testimony
obtained by torture from being introduced in the military commissions.
(In actuality, even that rule change was cosmetic, since the actual
instruction only prohibited such testimony when the prosecution stated
it was obtained by torture, and provided no discovery rights to find
out whether testimony was, in fact, obtained by torture). In addition,
the President's order explicitly disclaimed that Hamdan had any
rights--even merely to enforce the procedures established by the
order.\18\
---------------------------------------------------------------------------
\17\ See id., (slip op. at 49-50) (noting that the order governing
the commissions' procedures ``was amended most recently on August 31,
2005--after Hamdan's trial had begun''); Gov't Br. in Opposition to
Certiorari, Hamdan v. Rumsfeld, No. 05-184, 2005 WL 2214766 at *5 n.3
(Sept. 7, 2005) (``On August 31, 2005, Secretary Rumsfeld approved
changes to the military commission procedures. . .'').
\18\ See President's Order \7(c) (``This order is not intended to
and does not create any right, benefit, or privilege, substantive or
procedural, enforceable at law or equity by any party, against the
United States, its departments, agencies, or other entities, its
officers or employees, or any other person.'').
---------------------------------------------------------------------------
For all of these reasons and more, military lawyers involved in
both the prosecution and the defense recognized that these commissions
lacked the integrity they had come to expect from the military justice
system throughout their careers.\19\ It is in that system--the one
those military lawyers knew and insisted upon--that this Congress will
find the best way forward.
---------------------------------------------------------------------------
\19\ Swift Testimony, supra, at 1.
---------------------------------------------------------------------------
ii. courts-martial: a respected, experienced institution.
The military already has a battle-tested system for dealing with
the problem of trying our enemies: courts-martial. In 1950, Congress
adopted the UCMJ, a step that revolutionized military law. It built a
system based on fundamental respect for our Nation's traditions as well
as international law. The result was a military-justice system that is
the envy of the world. We should only break from that proud American
tradition for the best of reasons, supported with specific hard facts.
There are no such reasons here, and changing the rules now may be
another fruitless step backward from the important goal of bringing
terrorists to justice. Indeed, rather than searching for ways to
resuscitate the failed military commissions, this committee, and
Congress as a whole, should affirm this proud American tradition of
military justice in those cases in which suspected terrorists cannot be
tried by civilian courts.
Our civilian courts, after all, have handled a variety of
challenges and complicated cases, from the trial of the Oklahoma City
bombers to spies such as Aldrich Ames. They have tried the 1993 World
Trade Center bombers, Manuel Noriega, and dozens of other sensitive
cases. They have prosecuted cases where the crimes were committed
abroad. They have prosecuted hundreds of terrorism cases since
September 11.
I am well aware that some organizations, including the CATO
Institute, filed briefs in Hamdan arguing that only the Federal
civilian justice system was appropriate. I do not take that position,
because I can imagine that there are reasons why we may want to have an
alternative to the civilian justice system. I take it that this was the
point of Congress' 1916 statute, still on the books, that gives courts
martial the ability to try violations of the laws of war. See 10 U.S.C.
818. That statute, as the Supreme Court emphasized in Hamdan v.
Rumsfeld, provides the President with the power to try terrorism cases
in courts martial.
Courts martial are tooled up, under existing authority, for
handling terrorism cases. They offer a thorough, respected, and
established justice system that is accustomed to handling the inherent
security risks and logistical problems of trials for crimes against the
laws of war. I would urge this committee to tread carefully before
assuming otherwise. This is one area where a solution may be worse than
the disease. Consider four basic reasons why this is the case.
First, the Hamdan decision only blocked the trials of
10 individuals. Before rushing to legislate for these 10 men,
we should be absolutely convinced of the need for legislation.
Second, courts-martial have tremendous flexibility
today, and can handle the complexities of foreign cases.
Third, any attempt to resuscitate the military
commissions by tinkering with their precise procedures will get
bogged down in litigation that may continue for years.
Fourth, creating two systems of justice, one for
``us,'' and one for ``them,'' will look like victor's justice
and have little credibility in the eyes of the world. The
court-martial system already commands international respect.
a. Legislation for a Handful of Individuals is Unwise
Only about 10 individuals are presently indicted by the military
commissions and those indictments took over 4 years to prepare. To
create an entirely new legal system for these 10 individuals and to
attempt to do it reasonably promptly is unprecedented. I am aware that
there have been some statements that 75 individuals would be designated
for trial before these commissions, but a prosecutor in the Office of
Military Commissions last week stated that he was not aware of more
than 10 additional cases that could be prosecuted in them.
As Senator Graham reminded us last week, in each of these 10 cases,
the individuals are being held as ``enemy combatants,'' and are unable
to go free under existing law--whatever Congress decides about
prosecution. Even if Congress abolished military commissions, courts-
martial, and civilian-trial jurisdiction tomorrow, these individuals
would still be detained at Guantanamo Bay as enemy combatants. Justice
Stevens' opinion for the Court recognized that present legal status in
Hamdan itself, stating that the detention issue was not before it.
There are, to be sure, two cases pending in the United States Court of
Appeals for the District of Columbia Circuit, in which individuals are
seeking the right to challenge their detention, but even if the
detainees win those cases, it is widely expected that they will wind up
at the Supreme Court. Even if the Court were to decline certiorari,
they would then go back to the trial courts for factual hearings and
oral argument, none of which will set any detainee free, even an
entirely innocent one, for a very long time.
This is, in short, one of the worst factual contexts for new
legislation. The legislation would be created for only a small number
of people, all of whom have already been confined for years, and all of
whom will continue to be locked up regardless of any legislation that
Congress passes. To boot, each of those men is already amenable to
trial in court-martial and in a Federal district court.
b. Courts-Martial Have Tremendous Flexibility and International Respect
The existing court-martial system offers significant promise in
handling terrorism cases.\20\ We've had courts-martial on the
battlefields of Afghanistan and Iraq. The ``jury'' hearing terrorism
cases all have security clearances. Military rules already permit
closure of the courtroom for sensitive national-security information,
authorize trials on secure military bases far from civilians, enable
substitutions of classified information by the prosecution, permit
withholding of witnesses' identities, and the like. The UCMJ, in short,
has flexible rules in place that permit trials under unique
circumstances, and there is no reason to think that they cannot handle
these cases today.
---------------------------------------------------------------------------
\20\ Cf. Hamdan (slip op. at 49 n.41) (``That conspiracy is not a
violation of the law of war triable by military commission does not
mean the Government may not, for example, prosecute by court-martial or
in Federal court those caught `plotting terrorist atrocities like the
bombing of the Khobar Towers.' '')
---------------------------------------------------------------------------
In Curry v. Secretary of the Army, 595 F.2d 873 (CADC 1979), the DC
Circuit rejected a constitutional challenge by a U.S. servicemember to
certain structural aspects of the UCMJ. Noting that the UCMJ was
designed to work in peace time and in war time, the court stated:
Obedience, discipline, and centralized leadership and
control, including the ability to mobilize forces rapidly, are
all essential if the military is to perform effectively. The
system of military justice must respond to these needs for all
branches of the Service, at home and abroad, in time of peace,
and in time of war. It must be practical, efficient, and
flexible.
593 F.2d at 877. When drafting the Code, its principal author, Edmund
Morgan, emphasized that it struck a flexible balance between fairness
for defendants and operation within a military scheme.
It was recognized from the beginning by the committee that a
system of military justice which was only an instrumentality of
the commander was as abhorrent as a system administered
entirely by a civilian court was impractical. . . We were
convinced that a Code of Military Justice cannot ignore the
military circumstances under which it must operate but we were
equally determined that it must be designated to administer
justice. We, therefore, aimed at providing functions for
command and appropriate procedures for the administration of
justice. We have done our best to strike a fair balance, and
believe that we have given appropriate recognition of each
factor.
H.R. 2498 at 605-06 (1949) (Statement of Prof. Edmund Morgan). Those
who have practiced within the military law system understand this well.
As F. Lee Bailey once put it:
The fact is, if I were innocent, I would far prefer to stand
trial before a military tribunal governed by the UCMJ than by
any court, State or Federal. I suppose that if I were guilty
and hoping to deceive a court into an acquittal or create a
reasonable doubt in the face of muddled evidence, I would be
fearful of a military court because their accuracy in coming to
the ``correct'' result (in fact and not simply a legally
correct result, which means only a fair trial, and not that
guilty men are found guilty or that innocent men are acquitted)
has a far better accuracy rate than any civilian court has ever
approached.\21\
---------------------------------------------------------------------------
\21\ F. Lee Bailey, For the Defense 38 (1976).
I have listened over the past week to testimony by various
administration officials, who now say what they have not been saying
for the past 4 years, that courts-martial are unable to try these
cases. At a minimum, I would strongly urge the committee to inquire, in
detail (and perhaps in closed proceedings if necessary) about the 10
current indictments and why they think a court-martial cannot handle
them--and to have defense counsel who possess security clearances
present at the hearing to respond. I know of no reason why a court-
martial would be unable to handle a trial like that of Salim Hamdan,
should an al Qaeda member be captured today. Indeed, the
impracticability determination required by section 836 would best stand
up in court after empirical evidence is generated showing that current
court-martial rules cannot be applied.
The administration witnesses thus far have listed a parade of
horribles that supposedly follow from the UCMJ. In the 4 days since
this committee has invited me to testify, I have undertaken a quick
examination of the code, and my expedited examination suggests that
each claim is considerably overstated:
Miranda Warnings. Article 31(b) of the UCMJ does
contain a heightened Miranda requirement. But our Nation's
highest military court has held that an interrogation for
purposes of intelligence gathering was not subject to this
requirement, and that evidence obtained without a 31(b) warning
can be admitted into a court-martial proceeding. United States
v. Lonetree, 35 M.J. 396 (C.M.A. 1992). Military appellate
courts have repeatedly held Article 31(b) warnings are required
only for ``a law-enforcement or disciplinary investigation.''
See, e.g., United States v. Loukas, 29 M.J. 385, 387 (C.M.A.
1990). They are not required when questioning is conducted for
``operational'' reasons. Id. at 389. The notion that soldiers
in the field would be required to give Article 31(b) warnings
to potential enemy combatants whom they encounter or detain is
simply not true. Nor would U.S. personnel interrogating
potential enemy combatants for intelligence purposes be
required to provide Article 31(b) rights.
Hearsay. The 800 series of the Military Rules of
Evidence generally track the Federal Rules of Evidence, though
the military's business records exception is far broader than
the civilian rule, expressly allowing the admission of such
records as ``forensic laboratory reports'' and ``chain of
custody documents.'' The hearsay rules, including Military Rule
of Evidence 807's residual hearsay exception, are actually
quite flexible. They are designed to promote accuracy by
allowing in forms of hearsay that are reliable and excluding
forms of hearsay that are unreliable. These rules should be
embraced, not feared.
In his testimony before both the Senate Armed Services
Committee and the House Armed Services Committee, Assistant
Attorney General Bradbury said that both the International
Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda
(ICTR) allowed hearsay evidence. For example, he told the
Senate Armed Services Committee that ``a good example to look
to is the international criminal tribunals, for example, for
the former Yugoslavia and for Rwanda, which regularly allow the
use of hearsay evidence, as long as the evidence is probative
and reliable in the determination of the factfinder, and as
long as it is not outweighed by undue prejudice.''
As I understand it, however, the rules of both ICTY and ICTR
include an important and major restriction to the rule allowing
hearsay to the point of making it virtually irrelevant for the
current military commissions debate--an exception that Acting
Assistant Attorney General Bradbury did not mention. Under Rule
92 bis of both ICTY's and ICTR's rules, the trial chamber may
choose to admit ``a written statement in lieu of oral
testimony'' unless such a statement would prove ``acts and
conduct of the accused as charged in the indictment.'' The
trial chamber trying Slobodan Milosevic emphasized that
``regardless of how repetitive [written statement] evidence is,
it cannot be admitted if it goes directly to the acts or
conduct of the accused.'' Prosecutor v. Milosevic, ICTY Case
No. IT-02-54, P 8 (Mar. 21, 2002).\22\
---------------------------------------------------------------------------
\22\ ``There is also a brand new Rule 92 bis providing for the
admission of a witness's written statement, so long as it does not go
to proof of the conduct or acts of the accused.'' Patricia M. Wald, To
``Establish Incredible Events by Credible Evidence'': The Use of
Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42
Harv. Int'l L.J. 535, 548 (2001). As the Appeals Chamber made clear in
Prosecution v. Galic, ``There is a clear distinction to be drawn
between (a) the acts and conduct of those others who commit the crimes
for which the indictment alleges that the accused is individually
responsible, and (b) the acts and conduct of the accused as charged in
the indictment which establish his responsibility for the acts and
conduct of those others. It is only a written statement which goes to
proof of the latter acts and conduct which Rule 92 bis (A) excludes
from the procedure laid down in that rule.'' Prosecutor v. Galic, ICTY
Case No. IT-98-29-AR73.2, at 1 (June 7, 2002) (ICTY Judicial Supplement
No. 34, decision on interlocutory appeal concerning Rule 92 bis (C)).
The Appeals Chamber also emphasized that ``the purpose of Rule 92
bis is to restrict the admissibility of this very special type of
hearsay to that which falls within its terms, and a party is not
permitted to tender a written statement given by a prospective witness
to an investigator of the Office of the Prosecutor under Rule 89(C) in
order to avoid the stringency of Rule 92 bis.'' Id. (footnote omitted).
---------------------------------------------------------------------------
Those who rely on ICTY evidence rules would also do well to
consider that the factfinders in those tribunals are all
legally-trained individuals and judges who are used to certain
standards of evidence, and who know how to discount evidence
that does not meet traditional indicia of reliability. The
military commission, by contrast, has an untrained, lay, system
of factfinders, all of whom may have differing assumptions
about such matters. Rules of evidence are drafted, in part, to
guide lay ``jurors'' and avoid evidence that might be
inflammatory or probative in the minds of the untrained.
Warrants. Under Military Rule of Evidence 315(e)(4),
evidence obtained during a search in a foreign country will be
admissible even if it is seized without a warrant.
Additionally, under Mil. R. Evid. 314(g)(4) if the Constitution
does not require a warrant then the court-martial will not
require one either.
Protection of Witnesses. Mil. R. Evid. 507 allows
protection of identity of witnesses.
Chain of Custody. Mil. R. Evid. 901-903 deal with the
admission of documents--and these rules make introduction of
evidence easy, not difficult. The proponent of evidence can use
various methods to authenticate it and is not tied to any rigid
step-by-step authentication techniques. Stephen A. Saltzburg et
al., Military Rules of Evidence Manual 9-4 (5th ed. 2003).
Military Rule of Evidence 901 requires only a showing of
authenticity through either direct or circumstantial evidence.
Id. Under the identical Federal Rule 901(a), ``There is no
single way to authenticate evidence. In particular, the direct
testimony of a custodian or a percipient witness is not a sine
qua non to the authentication of a writing. Thus, a document's
appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with
circumstances, can, in cumulation, even without direct
testimony, provide sufficient indicia of reliability to permit
a finding that it is authentic.'' United States v. Holmquist,
36 F.3d 154, 167 (1st Cir. 1994) (citations and internal
quotation marks omitted), cert. denied, 514 U.S. 1084 (1995).
Additionally, ``[m]ere breaks or gaps in the chain [of custody]
affect only the weight of the evidence, and not its
admissibility.'' Saltzburg, supra, at 98; see also United
States v. Hudson, 20 M.J. 607 (A.F.C.M.R. 1985) (noting the
trial judge has broad discretion in ruling on chain of custody
matters and that all that is required is that it be reasonably
certain that the ``exhibit has not been changed in any
important aspect.''). Military courts will dispense with any
requirement for a chain of custody for items that are unique in
appearance. See, e.g., United States v. Thomas, 38 M.J. 614
(A.F.C.M.R. 1993); United States v. Parker, 10 M.J. 415 (C.M.A.
1981).\23\
---------------------------------------------------------------------------
\23\ Indeed, the International Criminal Tribunal for the Former
Yugoslavia (ICTY), even though it is structured without a judge and
jury, uses an authentication rule similar to Military Rule of Evidence
901. See Prosecutor v. Mucic, Trial Chamber Decision on the Motion of
the Prosecution for the Admissibility of Evidence (Jan. 19, 1998)
available at http://www.un.org/icty/celebici/trialc2/decision-e/
80119EV21.htm. The ICTY considers the issue of authentication so
important that in some cases the court employs its own experts in
determining the authenticity of evidence. See Prosecutor v. Milosevic,
Case No. IT-02-54-T, Trial Chamber III Final Decision of the
Admissibility of Intercepted Communications in the case of (June 14,
2004) available at http://www.un.org/icty/milosevic/trialc/decision-e/
040614.htm.
---------------------------------------------------------------------------
Classified Evidence. A court-martial, unlike a
civilian trial, can take place with a ``jury'' composed of
individuals who possess security clearances. Existing rules
permit courts-martial to be closed to the public and press.
Mil. R. Evid 505(j); R.C.M. 806. If the accused at any stage of
a trial seeks classified information, the government may ask
for an in camera (closed) proceeding to discuss the use of the
information in trial. Mil. R. Evid. 505(i). During this
session, the military judge hears arguments from both sides on
whether disclosure ``reasonably could be expected'' to harm
national security prior to the accused or his lawyer being made
privy to the classified information. Only ``relevant and
necessary'' classified information to the prosecution's or
accused's case can be made available. Mil. R. Evid. 505(i).
In one court-martial espionage case tried under Mil. R. Evid.
505's procedures, the military judge allowed an intelligence
agent to testify under a pseudonym and his real name was never
disclosed to the defense. The Court of Military Appeals upheld
that procedure and the United States Supreme Court denied the
accused's request to review that decision. United States v.
Lonetree, 35 M.J. 396 (C.M.A. 1992), cert. denied, 507 U.S.
1017 (1993).
The military rules of evidence already provide alternatives
to disclosure of classified information, which include:
redaction of the classified information; substitution of an
unclassified description or summary of the classified
information; substitution of a statement admitting the relevant
facts the classified information would tend to prove; or full
withholding of disclosure. Mil. R. Evid. 505(d). Courts-martial
also grant broad privileges for withholding information when it
is ``detrimental to the public interest.'' Mil. R. Evid.
506(a).
The most troubling thing about the testimony that administration
officials have provided over the past week is that they have read the
UCMJ in the most selective, condemning manner possible. Their reading
is in considerable tension with the way they have been reading other
statutes for the past 4 years, including the 1978 Foreign Intelligence
Surveillance Act and the 2001 Authorization for the Use of Military
Force. In those settings, they have emphasized the flexibility and
open-endedness of statutes, and supplemented their readings with
caselaw interpreting the provisions. But here, they are reading the
statutes in the most restrictive way possible. Nothing they have said
thus far justifies this skepticism. Before this body accepts such
skepticism, it should have, at a minimum, some empirical evidence
showing that courts-martial cannot try these cases, instead of a rather
questionable projection by a prosecuting branch.
Moreover, a court-martial is a decidedly legal proceeding. Congress
already has substantial law on the books authorizing and governing
them. The Supreme Court has on countless occasions recognized and
affirmed such proceedings--most recently in the Hamdan opinion. They
satisfy all the conditions the Hamdan majority found the president's
commissions failed to meet. They would eliminate the problems of
uniformity that the Supreme Court found so damning to the military
commissions.\24\ They would provide assurances of independent
proceedings and review that the commissions sorely lack.\25\ They would
satisfy Common Article 3's requirement of a ``regularly constituted
court''--a requirement that may be difficult, if impossible, to achieve
by patchwork legislation.
---------------------------------------------------------------------------
\24\ See id. (slip op. at 56-62).
\25\ See id. (slip op. at 14) (Kennedy, J., concurring) (``This is
another means in which, by structure and tradition, the court-martial
process is insulated from those who have an interest in the outcome of
the proceedings.'').
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By using an existing system, we would not just be reaffirming our
core American values, we'd also have smoother prosecutions. Right now,
the United Kingdom refuses to recognize the commission system, with its
attorney general calling them completely ``unacceptable'' because they
fail to offer ``sufficient guarantees of a fair trial in accordance
with international standards.'' Australia has cut a special side deal
with the Bush administration so one of its citizens, David Hicks, is
treated differently from other commission defendants. A United Nations
(U.N.) Expert Committee says these commissions are fundamentally
unfair--a report that will prompt other nations to refuse to let their
citizens be tried in these bodies. Extradition, sharing of prosecution/
intelligence information, and availability of witnesses will all become
extremely serious problems when other countries refuse to cooperate.
Without an extensive track record showing that courts-martial are
failures, it is exceptionally dangerous to gamble our prosecution
strategy on the administration's diplomatic ability to persuade other
nations to cooperate with these commissions.
I am by no means the first person to suggest this course. Just last
week, Professor Scott Silliman, who served for 25 years in the Air
Force's Judge Advocate General (JAG) Department, endorsed the same
approach before the Senate Judiciary Committee: ``[Courtsmartial] is a
fair and well-proven system of law, created by Congress some 56 years
ago, that is more than adequate to the task. Article 18 of the Code
gives general courts-martial jurisdiction to prosecute violations of
the law of war, and the President need only make the policy decision to
use them.'' \26\ Bruce Fein, a former high-ranking DOJ official in the
Reagan administration, also wrote: ``[T]rial by courts-martial under
the UCMJ would prohibit secret evidence and require sworn testimony.
The reliability of verdicts compared with military commissions would be
sharply advanced. The government invariably wins when justice is
done.'' \27\
---------------------------------------------------------------------------
\26\ Hamdan v. Rumsfeld: Establishing a Constitutional Process,
Hearing before the S. Comm. on the Judiciary, 109th Cong. (July 11,
2005) (statement of Scott L. Silliman), available at http://
judiciary.senate.gov/testimony.cfm?id=1986&wit--id=5511.
\27\ Bruce Fein, Are the Military Panels Needed?, Washington Times,
July 11, 2006, available at http://www.washingtontimes.com/commentary/
bfein.htm.
---------------------------------------------------------------------------
c. Legislation for this Handful of Defendants Will Get Bogged Down in
the Courts and Delay the Crucial Goal of Bringing Terrorists to
Justice.
Whatever purported benefits might be gained by some new system have
to be weighed against the inevitable litigation risk. The Hamdan
decision makes clear that any changes that depart from our Nation's
military tradition and international law are going to be closely
scrutinized by the courts. The result of changing the rules again now
could be another 4 years with no prosecutions and perhaps yet another
reversal by the Supreme Court. ``Four more years'' is not a convincing
slogan, especially when not a single terrorist has been brought to
justice in these military commissions.
This body should do what the President did not over 4\1/2\ years
ago, consider whether its decision to create a new trial system will
set back the war on terror by inviting litigation, and the overturning
of criminal convictions in terrorism cases. The Hamdan decision is
important here because of its implications for the Detainee Treatment
Act (DTA). Some individuals, including Justice Scalia, read the DTA to
strip the Supreme Court of jurisdiction over Guantanamo cases. Under
their reasoning, the DTA meant that Hamdan could only come into Federal
court to challenge the military commission after he was convicted, not
beforehand.
But that reading did not prevail--and with good reason. Senator
Levin of this committee worked with Senator Graham and others to modify
the initial version of the DTA, which would have created that outright
jurisdiction stripping. Instead, the modifications of Senators Levin
and Graham grandfathered the Hamdan case--and in a way that is good for
the fight against terrorism. Could you imagine if the contrary reading
would have prevailed? We would have put the country through the 10
commission trials, at huge taxpayer expense, and then they would have
come to the Supreme Court 4 or 5 years from now at the earliest. They
then would have been thrown out as illegal for the reasons the Supreme
Court gave us on June 29. We would have then possibly faced the
terrible prospect of these individuals going free.
The Nation owes a debt of gratitude to Senator Levin for ensuring
that careful thought and attention was devoted to this point in the
last-minute appropriations process, and to Senator Graham and the
others who worked with him. Otherwise, we would be having these debates
in Congress about how to try suspected terrorists 4 or 5 years from
now--and in a much worse factual environment--where criminal
convictions have been thrown out as illegal and where terrorists might
even have been released. By trying them according to court-martial
procedures, we still have the opportunity to do it right the first
time.
For that reason, if this body adopts any legislation today, it
should mandate an anti-abstention principle, and provide for expedited
review of any military commission challenge to the Supreme Court of the
United States. If you do not, we will face the same prospect of
criminal convictions being overturned in several years. The Hamdan
decision makes clear that the Federal courts have a vital role to play
in ensuring the fairness and legality of any system of criminal
justice. That role should be played at the outset, to avoid the trauma
to the Nation that would result from a decision setting the convicted
terrorists free, or, possibly forcing an individual to be retried after
they have already previewed their defense for the prosecution. In these
circumstances, a retrial would not be considered just in the eyes of
the world.
An expedited review provision has been used many times in recent
years, including, for example, the Bipartisan Campaign Finance Reform
Act. A three judge district court would hear the challenge, and then it
would go to the Supreme Court on a fast-track basis. That path would
provide a sure footing and stability beforehand.
Again, my strong view is that it is better to get the show on the
road and use the existing system, instead of having to wait for a risky
new scheme to be tested in the courts. But the worst of all worlds
would be legislation that adopts a risky system and tries to defer
Federal court challenges until after convictions happen. Such a system
will put courts in an impossible position. This country, the families
and survivors of the September 11 attacks, and the rest of the world,
deserve to see a fair trial of the suspected al Qaeda terrorists that
the administration has been holding onto for more than 4 years now. A
``wait and see'' attitude toward criminal convictions of suspected
terrorists is not something that can wait any longer.
Finally, judicial abstention provides yet another powerful and
compelling reason for the use of courts martial instead of commissions.
The Supreme Court in 1975 in Schlesinger v. Councilman stated that
challenges to a court-martial generally must take place after, not
before, someone is convicted in them. The government tried to advance a
similar principle in Hamdan, but not one of the three courts to hear
the case--at the trial, appellate, or Supreme Court level--accepted
this notion. Instead, all three courts made clear that they would hear
legal challenges, pre-trial, to military commissions. Courts-martial
have developed a body of caselaw and tradition that Federal courts feel
comfortable deferring to; but a newfangled institution will command no
such deference. Because we are talking about the most awesome powers of
government--dispensing the death penalty and life imprisonment--courts
will carefully scrutinize the procedures and rules for trial. The only
way to ensure that scrutiny yields a decision in which the system is
not tossed out is to use a system that is battle-tested and approved
already by the Supreme Court of the United States. Courts-martial and
Federal civilian trials meet these tests; military commissions do not.
d. Creating a Separate Trial System Will Undermine American Credibility
and Threaten Compliance with the Geneva Conventions.
Senator McCain last week stated it perfectly:
[W]e will have more wars, and there will be Americans who will
be taken captive. If we somehow carve out exceptions to
treaties to which we are signatories, then it will make it very
easy for our enemies to do the same in the case of American
prisoners.
Remarks of Senator John McCain, Hearing on the Future of Military
Commissions to Try Enemy Combatants, July 13, 2006.
Let's be clear about what the Hamdan decision did and did not do.
It did not, by its terms, guarantee prisoner of war privileges to al
Qaeda or individuals who do not wear a uniform and comply with the laws
of war. Nor did it, by its terms, extend the full protections of the
Geneva Convention to Hamdan or any other detainee. Instead, it simply
reaffirmed that the minimal, rudimentary requirements of Common Article
3 apply to all conflicts.
We must be careful not to further the perception that, in matters
of justice, particularly when the death penalty is at stake, the
American government adopts special rules that single out foreigners for
disfavor. If Americans get a ``Cadillac'' version of justice, and
everyone else gets a ``beat-up Chevy,'' the result will be fewer
extraditions, more international condemnation, and increased enmity
toward Americans worldwide.
An extensive amount of material has already been generated on this
point. Secretary of State Madeline Albright and 21 other senior
diplomats filed a brief in Hamdan v. Rumsfeld explaining that the
military commissions lacked credibility internationally and were
interfering with our ability to project our Nation as one of fairness
and justice.\28\ 422 Members of the European and United Kingdom
parliaments filed a brief condemning military commissions as
fundamentally unfair and a violation of international law.\29\ That
brief, notably, was signed by leaders of all of the major political
parties in Britain, including the conservative Tories. Retired generals
and admirals filed a brief containing similar views--building on Colin
Powell's stated beliefs while serving as Secretary of State.\30\ All of
these warnings square with what the Senate has itself said about the
Geneva Conventions--that they represent minimal standards for all
conflicts. In recommending ratification of the Geneva Conventions in
1955, the Senate Committee on Foreign Relations stated:
---------------------------------------------------------------------------
\28\ See http://www.hamdanvrumsfeld.com/Hamdan--AlbrightDiplomats--
brief.PDF.
\29\ See http://www.hamdanvrumsfeld.com/
HamdanParliamentariansFreshfields.pdf
\30\ See http://www.hamdanvrumsfeld.com/GeneralsandAdmirals.pdf
Our Nation has everything to gain and nothing to lose by
being a party to the conventions now before the Senate, and by
encouraging their most widespread adoption. . . . The practices
which they bind nations to follow impose no burden upon us that
we would not voluntarily assume in a future conflict without
the injunctions of formal treaty obligations.
We should not be dissuaded by the possibility that at some
later date a contracting party may invoke specious reasons to
evade compliance with the obligations of decent treatment which
it has freely assumed in these instruments. Its conduct can now
be measured against their approved standards, and the weight of
world opinion cannot but exercise a salutary restraint on
otherwise unbridled actions. . . .
The committee is of the opinion that these four conventions
may rightly be regarded as a landmark in the struggle to obtain
for military and civilian victims of war, a humane treatment in
accordance with the most approved international usage. The
United States has a proud tradition of support for individual
rights, human freedom, and the welfare and dignity of man.
Approval of these conventions by the Senate would be fully in
conformity with this great tradition.
The Army Field Manual itself has recognized in the past that
compliance with Common Article 3 is necessary in order to promote
interrogations, and to win the hearts and minds of the enemy and
potential sympathizers.
Humane treatment of insurgent captives should extend far
beyond compliance with Article 3, if for no other reason than
to render them more susceptible to interrogation. The insurgent
is trained to expect brutal treatment upon capture. If,
contrary to what he has been led to believe, this mistreatment
is not forthcoming, he is apt to become psychologically
softened for interrogation. Furthermore, brutality by either
capturing troops or friendly interrogators will reduce
defections and serve as grist for the insurgent's propaganda
mill.\31\
---------------------------------------------------------------------------
\31\ Army Field Manual 34-52.
Some have suggested, in response to the Supreme Court's decision,
that while Congress must respect the Supreme Court's interpretation of
the Geneva Conventions,\32\ Congress does not need to respect the
Conventions themselves. It can pass a new law--such as one authorizing
the current military commissions or a substantially similar
alternative--that overrides the Conventions and denies the protections
of Common Article 3 in full or in part to suspected members of groups
like al Qaeda. As a matter of domestic law, Congress currently has the
power to do this. But the political costs would be enormous and the
legal consequences severe.
---------------------------------------------------------------------------
\32\ See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684 (2006)
(explaining the Supreme Court's interpretive supremacy over treaties).
---------------------------------------------------------------------------
For starters, even if accompanied by a ``jurisdiction-stripping''
measure, any such statute would invite a litany of legal challenges.
Hamdan did not reach constitutional questions. If Congress now
authorizes commissions that fail to meet recognized international
standards, it runs the risk of violating constitutional due process and
tying up the courts for years in new rounds of detainee-rights
litigation.
A statute that works to limit Common Article 3 would also be in
serious violation of international law, on at least two levels. First,
any statute that does not comply in full with Common Article 3 would
amount to a breach--and likely a material breach--of one of the United
States' most fundamental treaty obligations. Common Article 3 is no
ordinary provision. It is often referred to as a ``Convention in
miniature'' \33\ for the way it distills the hundreds of articles
contained in the four Geneva Conventions into ``the common principle
which governs them,'' \34\ a principle of ``indivisible nature.'' \35\
A statute that conflicts with Common Article 3 would violate ``a
provision essential to the accomplishment of the object or purpose of
the treaty'' and therefore constitute a material breach of the entire
Geneva Conventions.\36\ Because Common Article 3 is non-derogable,
claims of military or security necessity are no justification for
violating it.\37\ Because the provisions of Common Article 3 are not
severable from one another, Congress must apply the article in its
entirety.\38\ Accordingly, a statute that serves to ``rein in'' \39\
any provision of Common Article 3, for any reason, would leave the
United States in material breach of all four Geneva Conventions. Treaty
obligations are ``too fundamental to be easily cast aside,'' \40\ and
that maxim holds especially true here, where the treaty at issue is one
of the United States' most powerful tools for upholding the law of war
and ensuring humane treatment for our soldiers.\41\
---------------------------------------------------------------------------
\33\ E.g., 3 INT'L COMM. OF RED CROSS, COMMENTARY: GENEVA
CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR
\34\ (1960). 34 Id. at 35.
\35\ Id. at 38. These quotations come from the official ICRC
commentary to the Geneva Conventions, which the Supreme Court
recognized in Hamdan as ``relevant in interpreting the Conventions'
provisions.'' Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2789 n.48 (2006).
\36\ See Vienna Convention on the Law of Treaties, opened for
signature May 23, 1969, art. 60(3)(b), 1155 U.N.T.S. 331, 346 (defining
``material breach''); see also Anthony Aust, Modern Treaty Law and
Practice 238 (2000) (noting that the breach of even ``an important
ancillary provision'' of a treaty will constitute a material breach);
Mohammed M. Gomaa, Suspension or Termination of Treaties on Grounds of
Breach 39 (1996) (The [materially] breaching act may be based on
grounds of municipal law such as the enactment of legislation or
execution of rules of municipal law which are contrary to the State's
contractual obligations.''). While the Vienna Convention on the Law of
Treaties is not binding on the United States, it is widely agreed, and
executive-branch officials have assumed, ``that the Convention
generally reflects customary international law.'' Curtis A. Bradley &
Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149
U. PA. L. REV. 399, 424 (2000).
Some commentators have argued that violations of Common Article 3
constitute not only material breaches, but also ``grave breaches''
expressly criminalized under the Geneva Conventions. See, e.g., Ruth
Wedgwood, War Crimes in the Former Yugoslavia: Comments on the
International War Crimes Tribunal, 34 VA. J. INT'L L. 267, 272-73
(1994). The U.S. Government has taken this position at least once. See
Amicus Curiae Brief Presented by the Government of the United States of
America, at 35-36, Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and
Judgment (May 7, 1997).
\37\ See Theodor Meron, Internal Strife: Applicable Norms and a
Proposed Instrument, in Humanitarian Law of Armed Conflict: Challenges
Ahead 249, 255-57 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991)
(explaining why ``[i]t is now generally accepted that humanitarian
instruments, having been adopted to govern situations of armed
conflict, are not subject to derogations'' on any grounds). A few
particular articles of the Geneva Conventions (such as Articles 5 and
27 of the Fourth Convention) do allow limited derogations, but Common
Article 3 is emphatically not one of them.
\38\ Cf. Hamdan v. Rumsfeld: Establishing a Constitutional Process:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 10 & n.58
(2006) (statement of Harold Hongju Koh, Dean, Yale Law School),
available at http://www.law.yale.edu/documents/pdf/Deans--Office/KOH--
Hamdan--TESTIMONY.pdf (observing that the Supreme Court gave no
indication in Hamdan that Common Article 3 may ever be applied
piecemeal).
\39\ See Kate Zernike, Administration Prods Congress To Curb the
Rights of Detainees, N.Y. Times, July 13, 2006, at A1 (quoting one
Senator as saying that Common Article 3 must be ``reined in'' by
Congress).
\40\ United States v. Dion, 476 U.S. 734, 739 (1986).
\41\ It is important to note that, contrary to what Daniel Collins
asserted last week, see Hamdan v. Rumsfeld: Establishing a
Constitutional Process: Hearing Before the S. Comm. on the Judiciary,
109th Cong. (2006) (statement of Daniel Collins, Partner, Munger,
Tolles & Olson), available at http://judiciary.senate.gov/
testimony.cfm?id=1986&wit--id=5512, if Congress simply asserts that the
existing commissions are ``regularly constituted,'' this would not be
sufficient to save compliance with Common Article 3. First, it takes a
highly formalistic interpretation of ``regularly constituted'' to mean
merely ``sanctioned by congressional declaration.'' Second and more
basic, this argument ignores section 1(d) of Common Article 3, which
states that protected persons must be tried by a ``regularly
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples'' (emphasis added).
The Supreme Court has already indicated in Hamdan that the existing
commissions fall far short of these guarantees.
---------------------------------------------------------------------------
In addition to violating treaty law, any statute that conflicts
with Common Article 3 would be argued to be illegal on a second level
of customary international law. Common Article 3 sets forth ``the most
fundamental norms of the law of war'' \42\ and thereby reflects
``elementary considerations of humanity.'' \43\ As a result, it is now
widely regarded to be a signal example of customary international
law.\44\ (Some even believe Common Article 3, and the Geneva
Conventions more generally, to be jus cogens, a peremptory norm of
general international law that may never be set aside unless a
subsequent contrary norm develops.\45\) Any statute that tries to avoid
or narrow Common Article 3 would thus be not only a profound affront to
the norms and morals of the global community, but also claimed to be an
illegal affront to them.
---------------------------------------------------------------------------
\42\ Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995).
\43\ Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 114, para. 218
(June 27).
\44\ See, e.g., id.; Kadic, 70 F.3d at 243; Mehinovic v. Vuckovic,
198 F. Supp. 2d 1322, 1351 (N.D. Ga. 2002); The 9/11 Commission Report:
Final Report of the National Commission on Terrorist Attacks upon the
United States 380 (2004) (``[Common Article 3's] minimum standards are
generally accepted throughout the world as customary international
law.'').
\45\ See Ingrid Detter, The Law of War 410 (2d ed. 2000); Theodor
Meron, The Geneva Conventions as Customary Law, 81 Am. J. Int'l L. 348,
350 (1987). The official commentary to the Geneva Conventions notes
that its principles ``are today the essential expression of valid
international law in this sphere'' and therefore ``exist independently
of the Convention and are not limited to the field covered by it.'' 1
Int'l Comm. of Red Cross, supra, at 412-13. Even formal denunciation of
the Conventions does not ``impair the obligations which the Parties to
the conflict remain bound to fulfill by virtue of the principles of the
law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity and the dictates of the
public conscience.'' Id. at 413.
---------------------------------------------------------------------------
Make no mistake: If Congress wants to avoid applying any provision
of Common Article 3 to ``enemy combatants'' or other groups, it must be
crystal clear that it so intends, because under the Charming Betsy
doctrine courts will construe statutes so as to harmonize with
international agreements whenever fairly possible.\46\ Congress's
abrogation of Common Article 3 would need to be very explicit, and very
public, or else courts will not recognize it. The boldness required to
specifically override the guarantees of Common Article 3 with new
legislation would be exceptional. Indeed, it would be unprecedented;
apparently no legislature has ever passed such a measure.\47\
---------------------------------------------------------------------------
\46\ See Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 307
(1829); Restatement (Third) of Foreign Relations Law of the United
States Sec. 114 (1987).
\47\ See Adam Liptak, Scholars Agree That Congress Could Reject
Conventions, but Not That It Should, N.Y. Times, July 15, 2006, at A10;
cf. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, \ 138
(Dec. 10, 1998) (observing that no State has ever ``shown or manifested
opposition to the implementation of treaty provisions against
torture,'' including those contained in Common Article 3), available at
http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.pdf.
---------------------------------------------------------------------------
If Congress were to assume this ignoble mantle, the legal troubles
wouldn't end with constitutional challenges and our breaches of treaty
law, customary law, and, arguably, jus cogens. To effectuate its new
statute, Congress would need to amend or repeal at least three other
controlling statutes: the UCMJ, the McCain Amendment, and the War
Crimes Act. The latter statute imposes Federal criminal sanctions on
``conduct . . . which constitutes a violation of Common Article 3.''
\48\ Congress would need to take the remarkable step of striking that
language from the War Crimes Act unless it wants U.S. military
personnel--including those who administer deficient trial proceedings--
to be prosecuted for war crimes in U.S. courts. But even that would not
protect these military personnel from prosecution abroad. Under the
principle of ``universality,'' ``[m]ost authorities have accepted that
breaches of the laws and customs of war, especially of the 1907 Hague
Conventions and the 1949 Geneva Conventions, may be punished by any
state that obtains custody of persons suspected of responsibility.''
\49\ Not only other countries' courts, but also the founding charters
of numerous international tribunals expressly recognize violations of
Common Article 3 as war crimes.\50\
---------------------------------------------------------------------------
\48\ 18 U.S.C. Sec. 2441(c)(3).
\49\ John Norton Moore Et Al., National Security Law 379 (1990);
accord Ian Brownlie, Principles of Public International Law 303 (6th
ed. 2003).
\50\ See, e.g., Rome Statute of the International Criminal Court,
July 17, 1998, art. 8, Sec. 2(c), (e)(vi), U.N. Doc. A/Conf.183/9
(2002); Statute of the International Criminal Tribunal for Rwanda, Nov.
8, 1994, art. 4, U.N. Doc. S/Res/955 (1994); Statute of the Special
Court for Sierra Leone, Jan. 16, 2002, art. 3, available at http://
www.scsl.org/scsl-statute.html; see also Moirah Sanchez et al., Case
Concerning the Women and Children of the Civil War, 10 ILSA J. INT'L &
COMP. L. 215, 223-24 & nn.20-21 (explaining international courts'
prosecution of Common Article 3 violations and state approval thereof).
---------------------------------------------------------------------------
In the legal fallout that would ensue from any congressional effort
to ``rein in'' Common Article 3, the fact that al Qaeda does not abide
by the article would be of no moment. Were it a party to the Geneva
Conventions, al Qaeda would be in material breach. No one doubts this.
But the Geneva Conventions, as well as background principles of
international law, do not permit other countries to breach, suspend, or
terminate the Conventions or any part thereof in response to another
party's material breach.\51\ If the United States does not think Common
Article 3 should apply in full in a particular armed conflict, it
must--as a matter of Geneva law and international law--formally
denounce the entire treaty, an act that no state has ever before taken.
---------------------------------------------------------------------------
\51\ Common Article 1 of the Conventions stipulates that the
Contracting Parties ``undertake to respect and to ensure respect for
the present Convention in all circumstances'' (emphasis added). This
language reflects the customary rule that humanitarian treaties may not
be suspended or derogated from in response to another party's material
breach. See Vienna Convention on the Law of Treaties, supra, at art.
60(5); see also AUST, supra, at 238 (indicating that the drafters of
the Vienna Convention had the Geneva Conventions specifically in mind
when they included this provision).
---------------------------------------------------------------------------
Against this mainstream interpretation of the Geneva
Conventions,\52\ and to widespread public criticism, some
administration officials have argued that the United States may
retaliate against al Qaeda and the Taliban by temporarily suspending
the Conventions with respect to those entities.\53\ If one accepts this
logic of negative reciprocity--and there is no guarantee that creative
lawyers in other governments wouldn't--then a congressional act that
breaches the Conventions might be seen to authorize other countries to
suspend application of the Conventions with respect to the United
States. This may be unlikely in the case of our allies, but it is not
impossible in the case of many key players in the war on terror; the
administration has, after all, already supplied them with the legal
arguments.
---------------------------------------------------------------------------
\52\ Expressions of this position can be found, inter alia, in
Detter, supra, at 403-04, 410; Fritz Kalshoven & Liesbeth Zegveld,
Constraints on the Waging of War 75 (2d ed. 2001); David A. Elder, The
Historical Background of Common Article 3 of the Geneva Conventions of
1949, 11 Case W. Res. J. Int'l L. 37, 52 (1979).
\53\ See Memorandum from Jay S. Bybee, Assistant Att'y Gen., to
Alberto R. Gonzales, Counsel to the President, and William J. Haynes
II, General Counsel, Dep't of Defense 23-25 (Jan. 22, 2002), available
at http://www.washingtonpost.com/wp-srv/nation/documents/
012202bybee.pdf (acknowledging legal precedents and norms to the
contrary, but asserting that the Executive may suspend the Geneva
Conventions because ``unfairness'' and ``non-compliance'' might result
if we did not do so).
---------------------------------------------------------------------------
So a new statute ``reining in'' Common Article 3 would not only
raise significant constitutional and administrative concerns, leave the
United States in violation of a major treaty obligation and a major
tenet of customary international law, fundamentally alter and undermine
our legal framework for the treatment of captives, and expose U.S.
officers to possible war crimes liability; it might also set the course
to the unraveling of the Geneva Conventions themselves.
I do not need to remind this committee why the Geneva Conventions
are so vital to our national interest, or explain how defying the
Conventions would do irreparable, perhaps unprecedented damage to our
Nation's standing and reputation in the eyes of the world, including
those whom we are trying to win over to our side. As commentators on
the law of war have observed, ``the rules contained in Article 3 are
minimum standards in the most literal sense of the term; standards, in
other words, no respectable government could disregard for any length
of time without losing its aura of respectability.'' \54\
---------------------------------------------------------------------------
\54\ Kalshoven & Zegveld, supra, at 69.
---------------------------------------------------------------------------
Finally, it is sometimes said Congress must act in the wake of the
Hamdan decision because otherwise a rogue international prosecutor will
indict a United States government official while traveling abroad. This
argument is a canard. Leave aside the fact that the Defense Department
has publicly stated that it has been in full compliance with Article 3,
and that our troops are trained to dispense Common Article 3
protections. The more basic problem is that whatever Congress (or, for
that matter, the Supreme Court) defines Common Article 3 to mean
wouldn't matter to this hypothesized rogue prosecutor abroad. If that
prosecutor wanted to use the customary definition of Common Article 3
as applying to all conflicts, he would be free to do so--regardless of
what the Supreme Court or Congress of the United States said. The
decision of both domestic institutions is utterly irrelevant to what a
rogue prosecutor in Spain, Belgium, or some other country might decide
to do.
I mentioned before that if Congress chooses to pass a law
overriding any provision of the Geneva Conventions, it would make ours
the first government ever to do so. It would not, however, make us the
first country to publicly violate Common Article 3. Other prominent
examples include the Khmer Rouge in Cambodia, the Revolutionary United
Front in Sierra Leone, the current Khartoum government in Sudan, and
Saddam Hussein in Iraq.\55\ These are not the bedfellows the United
States is accustomed to keeping, nor the precedents the United States
wants to evoke. Congress should make sure that any ``legislative
response'' to Hamdan does not tamper with Common Article 3 and put
America on the wrong side of history.
---------------------------------------------------------------------------
\55\ See Michael Byers, War Law: Understanding International Law
and Armed Conflict 36 (2005) (Sudanese government violating Common
Article 3); Laura Forest, Note, Sierra Leone and Conflict Diamonds:
Establishing a Legal Diamond Trade and Ending Rebel Control over the
Country's Diamond Resources, 11 Ind. Int'l & Comp. L. Rev. 633, 659
n.225 (2001) (RUF violating Common Article 3); Erik Suy, International
Humanitarian Law and the Security Council Resolutions on the 1990-1991
Gulf Conflict, in Humanitarian Law of Armed Conflict: Challenges Ahead
515, 523 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991) (Saddam
Hussein violating Common Article 3); Hans-Peter Gasser, Non-
International Armed Conflicts, 31 Am. U.L. Rev. 911, 921 (1982) (Khmer
Rouge); Report of the Group of Experts for Cambodia Established
Pursuant to General Assembly Resolution 52/135, U.N. Gaor, 53d Sess.,
Annex, 75 (1999), available at http://www1.umn.edu/humanrts/cambodia-
1999.html.
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iii. moving forward.
Chairman Warner and members of the committee, the Supreme Court got
it right. The president's military commissions departed in major ways
from the most basic tenets of American justice. For the first time,
defendants were kicked out of their own criminal trials without their
consent. Even a military commission prosecutor called the system ``a
half-hearted and disorganized effort by a skeleton group of relatively
inexperienced attorneys to prosecute fairly low-level accused in a
process that appears to be rigged.'' \56\ Another prosecutor lamented
that ``writing a motion saying that the process will be full and fair
when you don't really believe it is kind of hard--particularly when you
want to call yourself an officer and a lawyer.'' \57\ This is the
danger of departing from established and time-tested rules.
---------------------------------------------------------------------------
\56\ See Swift Testimony, supra, at 1 (quoting Air Force Captain
John Carr).
\57\ Id. (quoting Air Force Major Robert Preston).
---------------------------------------------------------------------------
Indeed, something that has gone without notice thus far is that the
lengthy judicial opinions that sided with Mr. Hamdan all have been
penned by jurists who actually served in our military: Justice John
Paul Stevens, Justice Anthony Kennedy, and lower court Judge James
Robertson. I believe this is hardly a coincidence. For years, the
military has stood at the forefront of protecting the rule of law,
knowing that if our courts give the executive branch the power to break
from the Geneva Conventions, then executives from other countries will
do it back to our own troops some day when they are captured. As a
group of retired admirals and generals pointed out to the Court as
amici curiae, during Senate considerations of the Conventions, ensuring
the protection of our troops was an overriding concern.\58\ Perhaps for
that reason, and despite all the administration's resistance to the
Court's Geneva Conventions holding, the Pentagon recently issued a memo
informing all branches of the military of the Supreme Court's
interpretation of the Conventions and finding that Common Article 3--
the provision at issue in Hamdan--now protects detainees across the
globe and must be respected.\59\ These are all steps in the right
direction.
---------------------------------------------------------------------------
\58\ Amicus Br. of Retired Generals and Admirals, Hamdan v.
Rumsfeld, No. 05-184, at 3, available at http://
www.hamdanvrumsfeld.com/briefs (``I cannot emphasize too strongly that
the one nation which stands to benefit the most from these four
conventions is the United States. . . . To the extent that we can
obtain a worldwide acceptance of the high standards in the conventions,
to that extent will we have assured our own people of greater
protection and more civilized treatment.'') (quoting Senator Alexander
Smith).
\59\ Mark Mazzetti and Kate Zernike, White House Says Terror
Detainees Hold Basic Rights, N.Y. Times, July 12, 2006.
---------------------------------------------------------------------------
Legislation in response to Hamdan must also consider the open-ended
nature of this conflict and guard against undue encroachment of
military jurisdiction in the administration of justice. After all, our
tradition of civilian justice is one of the defining principles of this
nation, one that the founders of this republic were prepared to defend
with (in the words of the Declaration of Independence) their lives,
their fortunes, and their sacred honor. Unlike past military
commissions, which were used in combat or occupation zones under
military control, the use of commissions in the freestanding conflict
with al Qaeda means that potentially anyone, including an American
citizen apprehended on American soil, could be tried before such a
tribunal. As the Supreme Court has repeatedly pointed out in defending
the jurisdiction of civilian courts, the jurisdiction of past military
commissions has been strictly confined by time, place, person, and
charge. All of those constraints appear to be much weaker, if they are
going to be applied at all, in the proposed military commissions today.
The result is that new legislation authorizing military commissions in
an unbounded ``war on terrorism'' almost certainly would depart from
the longstanding view, enshrined in one of the landmark decisions of
the Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866), that when the
civilian courts are open and unobstructed in the exercise of their
function, they should be used. This Congress should not resort to
military commissions unless it is convinced that the gravity of the
threat truly requires such a momentous step. In a very real sense, use
of military commissions expresses a lack of faith in the institutions
of civilian rule that have served this country well in times of crisis
every bit as dangerous as that which we face today.
What makes America great is not the quality of the soil on which we
stand, but the principles that define our Nation. My parents came here
from a distant land, attracted by that promise, of inalienable rights
for all and equal opportunity. We are a land of justice and fairness,
and with a system that is strong enough to handle even the most
extraordinary of challenges. We witnessed an extraordinary event 3
weeks ago in the Supreme Court, where a man with a fourth-grade Yemeni
education accused of conspiring with one of the world's most evil men
sued the President in the Nation's highest court--and won. Only America
is strong enough to permit such a challenge. Only America is fair
enough to let that challenge proceed. Only America is wise enough to
let such a decision stand as the law of the land--and to celebrate it
as a vindication of the Rule of Law. For on that day, Hamdan won
something that every American has celebrated from the Declaration of
Independence on--a fair trial. While the rule of law came out the
winner in Hamdan, it is not as if national security came out the loser.
Quite the opposite, in fact. Hamdan, like any suspect, deserves to be
tried and held accountable for any crimes he committed, but in a way
that is fair and preserves America's honor and integrity.
In sum, I ask members of this committee to see an America that is
fulfilling the promise to protect our troops and values--a promise
embodied in the words of Justice Rutledge, dissenting in the last great
military commission case, Yamashita v. Styer (1946):
More is at stake than General Yamashita's fate. There could
be no possible sympathy for him if he is guilty of the
atrocities for which his death is sought. But there can be and
should be justice administered according to law. In this stage
of war's aftermath it is too early for Lincoln's great spirit,
best lighted in the second inaugural, to have wide hold for the
treatment of foes. It is not too early, it is never too early,
for the Nation steadfastly to follow its great constitutional
traditions, none older or more universally protective against
unbridled power than due process of law in the trial and
punishment of men, that is, of all men, whether citizens,
aliens, alien enemies or enemy belligerents. It can become too
late.
This long-held attachment marks the great divide between our
enemies and ourselves. Theirs was a philosophy of universal
force. Ours is one of universal law, albeit imperfectly made
flesh of our system and so dwelling among us. Every departure
weakens the tradition, whether it touches the high or the low,
the powerful or the weak, the triumphant or the conquered.
In 1956, a young former law clerk to Justice Rutledge quoted these
words in a book chapter.\60\ His name was John Paul Stevens. Exactly 50
years later, he made good on Justice Rutledge's promise.
---------------------------------------------------------------------------
\60\ John Paul Stevens, Mr. Justice Rutledge, in Allison Dunham and
Philip B. Kurland (eds.), Mr. Justice, The University of Chicago Press
(Chicago 1956).
---------------------------------------------------------------------------
Thank you.
Chairman Warner [presiding]. Very interesting. Very
interesting testimony. We thank you for participating.
We'll now have Mr. Schlueter, Hardy Professor of Law and
Director of Advocacy Programs, St. Mary's University.
Mr. Schlueter. Yes, sir.
Chairman Warner. We welcome you.
STATEMENT OF DAVID A. SCHLUETER, HARDY PROFESSOR OF LAW AND
DIRECTOR OF ADVOCACY PROGRAMS, ST. MARY'S UNIVERSITY
Mr. Schlueter. Mr. Chairman, Senator Levin, members of the
committee, thank you for the opportunity to address you today
on the issue of the status of military commissions following
the Hamdan decision by the Supreme Court.
As with the others, I have prepared a detailed written
statement, and I've presented it to your staff.
Chairman Warner. Yes. All statements, in their total form,
will be put into the record.
Mr. Schlueter. Just a brief note, on background. It's a
personal honor to sit before you today, Senator Warner. We
shared a common law professor, Professor Kenneth Redden, at the
University of Virginia.
Chairman Warner. Yes.
Mr. Schlueter. I started off as an Active-Duty JAG, and
taught at the Army JAG School for 4 years, and did my Masters
of Law work at the University of Virginia, where Professor
Redden was one of my mentors. When he found out that I was in
the military system, he encouraged me to write a book on
military criminal justice. It's now in its sixth edition. I
know that Professor Redden would be honored, if he were here
with us today, to know that two of his former students are
facing each other and talking about a matter of national
interest. So, it is also a personal honor to finally sit here
and talk to you.
Chairman Warner. Thank you. We're not only facing each
other, we're joining one another in trying to resolve a problem
that faces our country.
Mr. Schlueter. Very much so.
Chairman Warner. I remember him with great affection and
respect.
Mr. Schlueter. We miss him dearly.
Chairman Warner. Thank you.
Mr. Schlueter. Just a bit about my background. I was an
Active-Duty JAG for 9 years, stayed in the Reserves for about
25 years, and, in that time, specialized in military justice
and did a lot of writing on it.
I left the JAG Corps to take a position to work at the
United States Supreme Court as an in-house counsel. I currently
teach constitutional law, evidence, trial advocacy, and
sometimes criminal procedure. So, I have a lot of interest in
this. Frankly, until last Friday, when I got a call from your
general counsel, I had hoped to stand on the sidelines and
watch with interest as to what you decided in Washington, and
then write about it. It is an honor to be here and to have my
views heard.
With all due respect, I think we're missing the point in
all of this. I was asked to respond to the Hamdan decision, and
have looked it over many times. It strikes me that we're in
danger of throwing out the baby with the bath water. In short,
in my view, the baseline should be the existing rules for
military commissions.
Mr. Fidell didn't mention it, but a number of years ago the
NIMJ published a book, ``The Annotated Guide to Procedures for
Trial by Military Commissions,'' and 10 of us were asked to
write commentary on each one of the rules, and to critique it,
and to prepare and contrast it with the UCMJ and the Manual for
Courts-Martial. I encourage the committee to take a close look
at this.
This has been somewhat of a bandwagon, and I think the
Hamdan decision has provided a number of interest groups with
the opportunity to criticize not only the President, but also
the rules, when, in fact, the Court has really only, itself,
identified several issues that were of most concern to it. The
presence of counsel, for example, was one of the issues that
Justice Stevens mentioned in his plurality, but he couldn't
even get a fifth, a vote on whether or not the rules of
procedure would require the defendant's absence at all
proceedings. So, I think it's very important to go back to the
reason we're doing this, and that is to carefully analyze the
opinion and just exactly what it said and didn't say.
On a similar note, what strikes me in what was wrong in
this case is that the President probably didn't apply as much
transparency as he should have. If the President and the
Pentagon had gone, to a greater extent, to go through the rules
and explain why they weren't practical, I don't know that we
would be here today. But they didn't do that, and that was the
peg on which the Court was able to hang its coat and to say
that there wasn't sufficient justification for deviating from
the rules.
That, in turn, led to a question about whether Article 3,
the Common Article, would apply or not. The Court did not say
that all of Article 3 would apply. It wasn't before it.
Anything that the Court said about Article 3, other than the
requirement that the punishment be imposed by a regularly
constituted court, is dicta. That was the only thing that the
Court really focused on, was that one specific provision in
Article 3, which, again, the Court concluded had been violated.
Now, in my written statement, I provide two suggested
amendments to the UCMJ. I only recommend two. I'm concerned
that what you're potentially thinking of is a complete overhaul
of the military justice system. Once you start analyzing the
UCMJ point by point, a variety of interest groups will come
forward and ask that the entire provision be considered. It's
not necessary to do that. I recommend that you follow the
constitutional structure that has worked well for over 50
years, and that is that you delegate to the President, in the
first instance, to draft the appropriate rules. If you want to
put a reporting requirement in, that would be fine. But I do
not encourage Congress to take on the task of writing yet
another set of rules that would apply with commissions
particularly in mind.
So, I recommend two amendments. The first amendment would
address an issue that has never been resolved legislatively,
and that is the President's authority to convene military
commissions. I recommend an amendment by adding a new Article
5(a), which would specifically delineate the three types of
commissions. Our focus today has been on law-of-war
commissions, but two other commissions have been used in
history. I recommend that you consider those, as well.
Finally, I recommend, very importantly, to amend Article
36(b). Article 36(b) says, we call it the ``uniformity
requirement,'' and I don't believe it was ever the intent of
Congress to require that all the rules concerning provost
courts, which haven't yet been mentioned, but are in that
provision, military commissions, and courts-martial would all
be uniform. The uniformity requirement, in my view, was
designed in 1950 to address the uniformity between the various
Armed Forces and not between all of the various military
tribunals, the administrative-type tribunals that might be
constituted.
Several witnesses have testified that the Manual for
Courts-Martial, in the preamble, indicates that the same
procedures should be used. But that preamble is not official;
it's only the views of the DOD. It is clear that, in history,
the parallel between general court-martial rules of procedure
and military commissions were essentially the same. I
personally have no trouble with a two-tier system. We have two-
tier systems now within the military justice system, in terms
of the level of the offense and the types of procedures that
are applied.
So, in my written statement, I recommend that we amend
Article 36(b) to make it clearly what I believe Congress
originally intended, that the uniformity principle only apply
as within the Armed Forces.
I do think that the baseline ought to be the existing
rules. As I've said earlier, my sense is that there were only
three or four areas that concerned the Court, and I'm satisfied
that bright lawyers in the Pentagon, working with public
interest groups that can respond to those in a transparent
system, would address those issues.
As I also pointed to in my statement and I have experience
with this. I served for 17 years as the reporter for the
Federal Rules of Criminal Procedure. I am intimately familiar
with the process for drafting amendments to the Federal Rules
of Criminal Procedures. Members of the committee, what you have
today in the military justice system is the equivalent of a
Federal criminal trial. There are some exceptions, but I don't
know that you want to get into the process of applying those
same rights and privileges to individuals who are terrorists
and are destined or they have the design of destroying our
country.
On a final note, I asked my Sunday-school class, on Sunday
morning, if they had any thoughts that they thought I ought to
share with you, and their almost unanimous reaction was, ``Why
do we even need military commissions to try these people?
They're out to destroy us.''
I come from San Antonio, Texas. I'm not in the Beltway. We
used to live here, but I think it is so important that Congress
listen to the voice of the American people. That doesn't
necessarily mean that American people are always right, but I
think, for the most part, the person on the street really
wonders why it is that people who cut off the heads of the
people they capture are entitled to the same due-process rights
that our American servicemembers are entitled to.
My recommendation is, again, the baseline be the existing
rules, that they be modified to adjust to the concerns raised
by the Supreme Court, and that, at the core, it is critical
that we provide them fundamental due process. There are core
fundamental due-process principles that ought to be applied,
and I don't think we need to get about the business of applying
all of the rules of evidence to trials by military commissions.
With that, I thank you.
[The prepared statement of Mr. Schlueter follows:]
Prepared Statement by David A. Schlueter
i. introduction
Mr. Chairman, Senator Levin, and members of the committee, thank
you for the opportunity to address the issue of the status of military
commissions in light of the Supreme Court's recent decision in Hamdan
v. Rumsfeld. In that case the Supreme Court held that the military
commission that had been convened to try Salim Ahmed Hamdan, violated
the Uniformed Code of Military Justice (UCMJ) and Common Article 3 of
the Geneva Conventions. The question before Congress is to frame an
appropriate legislative response to that opinion.
The following discussion addresses the Court's decision and
possible responses to that decision.
ii. hamdan v. rumsfeld, 126 s.ct. 2749 (2006)
A. In General
On November 13, 2001, the President issued a military order
entitled ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism.'' \1\ In that order the President stated,
inter alia, that persons identified as members of al Qaeda or as
persons who had engaged in terrorist activities, would be tried by
military commissions. The order authorized the Secretary of Defense to
appoint military commissions to try those persons. The Secretary did so
in Military Commission Order No. 1, dated March 21, 2002. On May 2,
2003, the Department of Defense (DOD) released eight Military
Commission Instructions, which provided more specific guidance on
military commission procedures.
---------------------------------------------------------------------------
\1\ 66 Fed. Reg. 57833.
---------------------------------------------------------------------------
Salim Ahmed Hamdan, a citizen of Yemen, was captured, detained, and
charged with one count of conspiracy, and was set to be tried by a
military commission, sitting at Guantanamo Bay, Cuba. Hamdan sought
habeas corpus relief in a Federal district court in the District of
Columbia, which granted him relief on his arguments that first, the
President lacked the authority to establish military commissions to try
him for a conspiracy and second, the procedures to be used by the
military commission violated the basic tenets of international and
military law.\2\ The United States Court of Appeals for the District of
Columbia, reversed.\3\
---------------------------------------------------------------------------
\2\ 344 F.Supp.2d 152 (D.C. 2004).
\3\ 415 F.3d 33 (D.C. Cir. 2005).
---------------------------------------------------------------------------
The Supreme Court reversed the Court of Appeals and concluded that
first, it had the authority to review the case \4\ and second, that the
military commission that had been convened to try Hamdan lacked
jurisdiction because ``its structure and procedures violate both the
UCMJ and the Geneva Conventions.'' \5\ Four members of the Court agreed
that the crime of conspiracy was not a crime recognized by the law of
war and therefore could not be tried by military commission.
---------------------------------------------------------------------------
\4\ The Court rejected the government's argument that
Sec. 1005(e)(1) of the Detainee Detention Act of 2005 (DTA) stated that
no court would have the jurisdiction to hear or consider any writ of
habeas corpus filed by persons detained at Guantanamo Bay.
\5\ 126 S.Ct. at 2759.
---------------------------------------------------------------------------
Regarding the President's authority, the Court concluded that
because the commission at issue was not expressly authorized by
Congress, its task, as in Ex parte Quirin,\6\ was to decide whether
Hamdan's military commission was authorized. The Court reviewed the
long history of military commissions, and noted that they have
typically been used in three situations:
---------------------------------------------------------------------------
\6\ 317 U.S. 1 (1942).
First, military commissions have been used as
substitutes for civilian courts where martial law has been
declared;
Second, military commissions have been used to try
civilians where a temporary military government has been
established and the local courts are not functioning; and
Third, military commissions have been convened as
incident to war where ``there is a need to seize and subject to
disciplinary measures those enemies who in their attempt to
thwart or impede our military effort have violated the law of
war.'' \7\
---------------------------------------------------------------------------
\7\ 126 S.Ct. at 2776.
The third type, the Court said, was last used in World War II and
was primarily a factfinding body to determine whether the person
charged had violated the law of war. Its jurisdiction, the Court said,
was limited to offenses recognized during a time of war.
B. The President's Authority to Authorize Military Commissions
In Hamdan, the Court did not decide whether the President has the
independent authority to convene military commissions. It merely held
that under the facts of the case, the military commission lacked
jurisdiction to try Hamdan. The Court stated that at most, the UCMJ,
the Detainee Treatment Act (DTA), and the Authorization of Use of
Military Force acknowledged the President's authority to convene
military commissions in those situations where they were justified
under the Constitution and the laws, including the law of war.
The Court reviewed prior cases on the subject and concluded that in
those cases, the Court had concluded that under the facts, the
commissions in question were legal and consistent with the
Constitution.
C. Limits on the President's Authority to Authorize Military
Commissions
Absent a more express authorization from Congress, the Court said
that its task was to decide whether the commission in question was
justified. In doing so, the Court analyzed three possible limitations
on the President's authority.
1. Crimes Charged Must Be Cognizable Under the Law of War
First, a plurality of the Court concluded that the charge against
Hamdan--conspiracy--was not recognized under international law. Even if
it were, the plurality said, the alleged acts did not occur in a
theatre of war or after September 11, 2001. The Court, however, cited
its decision in In re Yamashita, 327 U.S. 1, 13 (1946) for the
proposition in that case that ``neither Congressional action nor the
military orders constituting the commission authorized it to place
petitioner on trial unless the charge proffered against him is a
violation of the law of war.'' An argument could be made that the
plurality would recognize Congress' authority to permit non-law-of-war
crimes to be prosecuted by military commission.
2. The Procedures Must Be Uniform with Rules of Procedure for
Courts-Martial
Second, the Court interpreted Article 36(b) of the UCMJ to require
that the procedural rules for military commissions must be uniform with
the rules governing courts-martial, unless it is impractical to do so.
Article 36 provides:
``Sec. 836. Art. 36. President may prescribe rules
(a) Pretrial, trial, and post-trial procedures, including
modes of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military
tribunals, and procedures for courts of inquiry, may be
prescribed by the President by regulations which shall, so far
as he considers practicable, apply the principles of law and
the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts, but which
may not be contrary to or inconsistent with this chapter.
(b) All rules and regulations made under this article shall
be uniform insofar as practicable.''
The Court stated that Article 36 places two limits on the
President's authority to establish the rules for military commissions.
First, Article 36(a) requires the President to promulgate rules of
procedure that mirror the Federal rules of practice, to the extent
practical and to the extent that they are not contrary or inconsistent
with the UCMJ. The Court apparently agreed that the President had made
that determination in his November 13, 2001 order.
Second, the Court held that Article 36(b) requires that the rules
for military commissions be uniform with the rules for courts-martial,
insofar as such rules are practical. The Court stated that there was
nothing in the record to show that the President had made such a
determination in this case.
The Court detailed several procedural rules for Hamdan's military
commission and concluded that they were clearly inconsistent with
established practices for courts-martial. In particular, the Court was
concerned about the provisions in the commission rules that would
preclude the accused from hearing the evidence against him.
3. The Procedures Must Comply with Common Article 3 of the Geneva
Conventions
Finally, the Court held that the commission rules also violated the
Geneva Conventions.\8\ The Court of Appeals had concluded that the
Geneva Conventions did not apply because (1) those conventions are not
judicially enforceable, (2) Hamdan was not entitled to their
protections, and (3) even if he was entitled to their protections, the
Schlesinger v. Councilman \9\ abstention doctrine applied. Without
deciding the merits of the argument that Hamdan was not entitled to the
full protections of the Conventions because the conflict is not between
signatory states, the Court concluded that one of the provisions, what
is referred to as Common Article 3, did apply. That article appears in
all four Geneva Conventions and requires that if the conflict in
question is not international in character, a party to the conflict may
not pass a sentence without a ``previous judgment by a regularly
constituted court affording all the judicial guarantees . . .
recognized as indispensable by civilized peoples.'' \10\ The Court
concluded that at a minimum, a military commission ``can be regularly
constituted by standards of our military justice system only if some
practical need explains deviations from court-martial practice.'' That
need had not been shown, the Court said.
---------------------------------------------------------------------------
\8\ 126 S.Ct. at 2793.
\9\ 420 U.S. 738 (1975) (civilian courts should not interfere with
ongoing court-martial proceedings).
\10\ 126 at 2795 (citing Common Article 3).
---------------------------------------------------------------------------
D. What the Supreme Court Did Not Hold
In analyzing a legislative response to the Court's decision in
Hamdan, it is important to briefly address what the Court did not hold:
First, the Court did not address the merits of the
arguments on whether the full force and effect of the Geneva
Conventions apply to the detainees held in Guantanamo Bay,
Cuba.
Second, the Court did not hold that the President
lacks authority under the Constitution to convene military
commissions.
Third, the Court did not hold that certain provisions
in the UCMJ or the Manual for Courts-Martial must be applied to
military commissions.
Fourth, the Court did not hold that only war crimes
could not be tried by a military commission.
iii. formulating a legislative response to hamdan
A. In General
In its opinion, the Supreme Court stated that if ``Congress, after
due consideration deems it appropriate to change the controlling
statutes, in conformance with the Constitution and other laws, it has
the power and prerogative to do so.'' \11\
---------------------------------------------------------------------------
\11\ 126 S.Ct. at 2799.
---------------------------------------------------------------------------
There are at least two issues that should be legislatively
addressed in response to the Court's decision in Hamdan:
First, despite the long historical debate and conversations about
the President's authority to convene military commissions, the Court in
Hamdan did not directly address that issue. In my view, Congress should
address that issue head on and codify the President's authority to do
so.
Second, the Court in Hamdan focused a great deal on its perceived
requirement in Article 36(b), UCMJ, to make the procedural rules of
military commissions and courts-martial uniform. That is not a
commonly-held viewpoint, and for reasons discussed below, Article 36
should be amended to make it clear that uniformity is not required.
Given the long-standing role of Congress in exercising its
Constitutional powers under Article 1 Sec. 8 (concerning the rules and
regulations for the Armed Forces) it is appropriate for Congress to map
out only broad policy guidelines for implementing military commissions,
and leave to the President and the DOD the task of more specifically
setting out the procedures and rules to be used.
B. Addressing the President's Power to Create Military Commissions.
One of the first issues deserving Congressional attention is the
longstanding question about the President's authority to convene
military commissions. In the past, when it reviewed the
constitutionality of military commissions, it either assumed that the
President had the inherent authority, as Commander in Chief, to convene
such tribunals, or that Congress in some way had authorized such
tribunals. In Hamdan, the Court noted that because Congress had not
specifically authorized a military commission to try the accused, the
Court's duty was to determine whether the commission, assuming the
President had the authority to convene commissions generally, had
properly done so in Hamdan.
An appropriate first step would be to amend the UCMJ to address
explicitly the President's authority to convene military commissions.
That amendment could take the form of a new article that would provide
the authority, with or without any other limitations concerning when
such commissions might be authorized. That new provision could also
address the President's authority to promulgate rules of procedure for
conducting such commissions, a subject addressed below.
That amendment could also include a reference to the three types of
military commission recognized by the common law and addressed in the
Court's opinion in Hamdan.
A proposed amendment to the UCMJ, in form of adding a new Article
5a is at the end of this statement.
C. Addressing the Uniformity-of-Rules Requirement in Article 36(b)
1. In General
One of the key, and more difficult, points made by the Supreme
Court in Hamdan was the fact that the proposed commission rules of
procedure were inconsistent with the UCMJ. The Court relied heavily
upon language in Article 36(b), which the Court said, required the
President to apply the rules used in courts-martial to the military
commission. As pointed out by Justice Thomas in his dissent, it is not
clear where the majority got that particular reading from the
statute.\12\
---------------------------------------------------------------------------
\12\ 126 S.Ct. at 2842 (Thomas, J., dissenting). Paragraph 2(b)(2)
to the Preamble to the Manual for Courts-Martial states, however, that:
Military commissions and provost courts for the trial of cases
within their respective jurisdictions. Subject to any applicable rule
of international law or to any regulations prescribed by the President
or by other competent authority, military commissions and provost
courts shall be guided by the appropriate principles of law and rules
of evidence prescribed for courts-martial.
The Preamble is part of the ``supplementary materials'' published
by the DOD and Department of Transportation. They do not constitute the
official views of the DOD or any other agency and ``do not constitute
rules.'' Discussion, Preamble to the Manual for Courts-Martial (2005).
Rules for Courts-Martial (RCM) 101, Scope, states only that the RCMs
apply to procedures for courts-martial. No mention is made of other
military tribunals.
---------------------------------------------------------------------------
The most common reading given to Article 36(b) is that the
uniformity requirement was designed to make the practices in the
various armed forces uniform, in response to the sometimes disparate
practices that existed before the UCMJ was enacted in 1950.
Notwithstanding its reading of Article 36(b), the Court recognized
the ability of Congress to amend the UCMJ.\13\
---------------------------------------------------------------------------
\13\ 126 S.Ct. at 2799.
---------------------------------------------------------------------------
At first blush it would seem an easy task to simply merge the
existing UCMJ provisions and the Rules for Courts-Martial (RCMs) found
in the Manual for Courts-Martial into any military commission. Doing so
is not only not feasible--given the complexity of existing statutory
and Manual provisions--but could actually undermine the very purposes
and functions of military commissions. That purpose is to
expeditiously, without the unnecessary sacrifice of due process,
determine whether a given person has committed an alleged offense, and
if so, to justly determine a fitting punishment.
In considering the question of simply adopting existing court-
martial procedures into military commissions, it is important to first
briefly set out the modern court-martial procedures.
2. How Courts-Martial Function
Courts-martial, which are only temporary tribunals, are created to
determine the guilt or innocence of persons accused of committing
offenses while subject to the jurisdiction of the Armed Forces. Some
would argue that they are designed to enforce discipline and others, to
insure that justice is done.\14\
---------------------------------------------------------------------------
\14\ See Schlueter, Military Criminal Justice: Practice and
Procedure, Sec. 1-1 (6th Ed. 2004)
---------------------------------------------------------------------------
The current court-martial is a temporary tribunal, convened by a
commander to hear a specific case. It is not a part of the Federal
judiciary and is not subject to direct judicial review in that system.
In some points, the court-martial provides greater safeguards than its
civilian counterparts, and a brief survey of the current practice bears
this out.
Before swearing and preferring court-martial charges, a company
commander is responsible for conducting a thorough and impartial
inquiry into the charged offenses.\15\ This almost always involves
obtaining legal advice from a judge advocate. During that
investigation, an accused is entitled to the protections of the Fourth
Amendment, vis a vis searches and seizures, the privilege against self-
incrimination, and the Sixth Amendment right to counsel, for example,
at a pretrial lineup. Those protections are provided not only by case
law, which as concluded that those constitutional protections extend to
servicemembers, but perhaps more importantly by the Military Rules of
Evidence.\16\
---------------------------------------------------------------------------
\15\ Art. 30, UCMJ
\16\ See Mil. R. Evid. 301 (privilege against self-incrimination);
Mil. R. Evid. 304 (procedures for determining admissibility of
accused's statements); Mil. R. Evid. 305 (Article 31(b) warnings and
right to counsel warnings); Mil. R. Evid. 311-316 (rules addressing
requirements for searches and seizures); and Mil. R. Evid. 321
(admissibility of eyewitness identifications).
---------------------------------------------------------------------------
If charges are preferred they are moved up the chain of command for
recommendations and actions by higher commanders. If the command
believes that the charges are serious enough to warrant a general
court-martial (roughly equivalent to a civilian felony trial) the
commander orders that an Article 32 investigation to be held.\17\ At
that investigation the accused is entitled to be present, to have the
assistance of counsel, to cross-examine witnesses, and to have
witnesses produced. Although the Article 32 investigation is often
equated with a civilian grand jury, in many ways it is far more
protective of an accused's rights than a grand jury.
---------------------------------------------------------------------------
\17\ Art. 32, UCMJ
---------------------------------------------------------------------------
If the command decides to refer the charges to a court-martial, the
convening authority selects the court members, but does not select
either the counsel or the military judge. Specific provisions in the
UCMJ prohibit a convening authority from unlawfully influence the
participants or the outcome of the case.
The accused is entitled to virtually the same procedural
protections he would have in a State or Federal criminal court--largely
as a result of the requirement in Article 36(a) that the rules of
procedure for military courts are supposed to parallel the procedures
used in Federal courts. For example, a military accused is granted:
the right to a speedy trial (under the Sixth Amendment
and under a 120-day speedy trial provision in the Manual for
Courts-Martial);
extensive discovery, that is supposed to be co-equal
with the right of discovery for the prosecution;
the right to production of evidence for examination
and testing;
the right to request witnesses, including expert
witnesses;
the right to request the assistance of experts in
preparing for trial;
the right to confront witnesses;
the right to select either a trial with members or a
trial by the judge alone (bench trials);
the right to request inclusion of enlisted members, if
the accused selects trial by members (effectively a jury
trial);
the right to full voir dire of the court members and
the right to exercise both challenges for cause and peremptory
challenges;
the ability to challenge the military judge for cause;
the right to file motions in limine, motions to
suppress, and motions to dismiss the charges on a wide range of
grounds (for example invoking constitutional privacy rights to
dismiss rules or regulations governing personal conduct).
In many cases the accused and the convening authority engage in
plea bargaining and execute a pretrial agreement. Typically, those
agreements require the accused to plead guilty in return for a
guaranteed maximum sentence. Before accepting a guilty plea, the
military judge is required to conduct a detailed ``providency'' inquiry
to insure that the accused is pleading guilty voluntarily and
knowingly, and that a sufficient factual basis supports the accused's
plea.
If the accused pleads not guilty, during the trial the Military
Rules of Evidence apply.\18\ Those rules, which mirror the Federal
Rules of Evidence, include a number of rules not found in the latter.
For example, Section III of the Military Rules includes very specific
guidance on searches and seizures, confessions, eyewitness
identification, and interception of oral and wire communications.
Section V contains thirteen detailed rules governing privileges. In
particular, Military Rule of Evidence 505 provides very detailed
guidance on disclosure of classified information and Rule 506 provides
equally specific guidance of disclosure of government information that
would be detrimental to the public interest.
---------------------------------------------------------------------------
\18\ See generally Saltzburg, Schinasi & Schlueter, Military Rules
of Evidence Manual (5th Ed. 2003).
---------------------------------------------------------------------------
Sentencing is usually a separate proceeding. The rules of evidence
(unlike in the Federal system) apply at the sentencing phase. During
sentencing, the accused is entitled to present witnesses and other
evidence for the court's consideration, and to challenge the
prosecution's evidence.
The post-trial procedures are extremely detailed. A copy of the
record of trial is given to the accused, at no cost. Depending on the
level of punishment imposed, a formal legal review of the proceedings
is prepared. The post-trial review and recommendations are presented to
the convening authority for consideration. During that process the
accused has the right to present clemency matters to the convening
authority.
For certain courts-martial, appellate review is automatic in the
one of the service Courts of Criminal Appeals. Appellate counsel is
provided free of charge. Review in the military appellate courts may
take upwards of 1-year. The members of those courts are high-ranking
military officers. Those courts are given factfinding powers and have
the authority to reassess a court-martial sentence.
An accused may petition for further review by the United States
Court of Appeals for the Armed Forces, which sits in Washington, DC.
That court is composed of five civilian judges, who are appointed for
15-year terms. The time from the initial trial to completion of review
by the Court of Appeals can typically take several years. During
appellate review, it is not unusual to find a court-martial being
reversed for violation of one of the many procedural rules, summarized
above.
An accused may then seek certiorari review at the Supreme Court of
the United States.
3. Why Attempting to Make the Rules for Courts-Martial and Rules
for Military Commissions Uniform Raises Additional Problems
There are several reasons why attempting to simply use either the
UCMJ or the Manual for Courts-Martial as a default system for military
commissions potentially causes additional problems.
First, it is essential that military commissions be able to operate
quickly and efficiently to determine guilt or innocence and if a person
is found guilty, an appropriate sentence. Applying the RCMs and the
Military Rules of Evidence provide valuable due process rights for
servicemembers--that may rival the protections provided in the civilian
system. Applying them in a military commission setting could virtually
bog down the system in delays experience in everyday courtrooms.
Second, it seems clear that using the UCMJ or the Manual for
Courts-Martial as a presumed template for military commissions could
require a drastic overhaul of those provisions. For example, Military
Rules of Evidence contain a number of privileges. Given the nature of
the controversy regarding privileges, Congress in enacting the Federal
Rules of Evidence in 1975 could not agree on a set of privilege rules
and instead left it to the Federal courts to determine which privileges
to adopt and which to reject. The Military Rules of Evidence, on the
other hand specifically cover communications such as the clergy member
privilege.\19\ Deciding which privileges to apply, and when, would be a
very difficult task.
---------------------------------------------------------------------------
\19\ Mil. R. Evid. 503. If the Military Rules of Evidence were to
apply to military commissions, unaltered, an unlawful combatant being
tried by military commission could exclude any statements he or she
made to a spiritual advisor, notwithstanding the fact that the
statement was completely voluntary and overhead by a guard. One option
would be to state that none of the privileges in the Rules of Evidence
apply, but that would also preclude invocation of the attorney-client
privilege. An alternative option would be to go through each privilege
and determine which provision applied or did not apply to a military
commission.
---------------------------------------------------------------------------
Similarly, the UCMJ and the Military Rules of Evidence provide very
detailed guidance for rights-warnings to suspects and very detailed
guidance on obtaining evidence by search and seizure. Those rules would
have to be completely rewritten to address any exceptions for military
commissions. In the alternative, Congress or the President could draft
a provision in the UCMJ or the Manual for Courts-Martial that
explicitly exempted various rules in those sources. Legislatively, that
would be extremely cumbersome.
4. Proposal: Amend Article 36(b) to Make it Clear that the
Uniformity Requirement Applies Only to Courts-Martial and
Create a Separate Provision for Military Commission Procedures
As a starting point for redrafting any rules governing military
commissions, it would be important to make clear, what many have
assumed to be the case, that Article 36(b) was intended to apply to
uniform rules of practice among the Armed Forces.
First, and to that end, Article 36(b) should be amended to state
clearly that the uniformity requirement extends only to courts-martial.
The text of the proposed amendment is below.
Second, a new provision should be added to the UCMJ, specifically
addressing the adoption of procedural rules for military commissions.
The Hamdan decision is a good starting point for identifying key
procedural due process protections that civilized nations would expect
to exist in any tribunal. In addition, common principles of procedural
due process would inform the drafters of such rules: the right to be
present during all proceedings; the right to the assistance of counsel;
the right to cross-examine government witnesses and challenge the
government evidence; the right to be heard; and the right to an appeal
by an impartial body.
In the discussions following Hamdan, much has been made about
applying the authentication and hearsay rules. Clearly, those rules,
although basic to the everyday courtroom practice in both civilian and
military courts would have to be adjusted for practice in the military
commissions. So too, would the now-accepted discovery rules have to be
carefully considered.
The task for drafting these military commission rules should rest
first in the President and DOD. That is the model that has been used
for decades and generally works well. Given the delicate, and
potentially international, nature of military commission proceedings,
Congress could require that the President report the rules to Congress.
In any event, it is clear from Hamdan that any rules adopted by the
President, with or without congressional approval, will be subject to
review in the Federal courts.
iv. conclusions and recommendations
The Supreme Court's decision in Hamdan v. Rumsfeld provides
Congress and the President with an opportunity to re-evaluate the
subject of military commissions, specifically the authority of the
President to convene such tribunals and consideration of rules of
procedure that will be consistent with the Constitution and the rule of
law.
To those ends, two amendments to the UCMJ seem appropriate. The
first amendment would be to add a new Article 5a, which would address
the President's authority to convene military commissions, and second,
address the promulgation of procedural rules for those commissions.
The second amendment would address the uniformity requirement in
Article 36(b) to make it clear that that provision applies only to
uniformity concerning court-martial practices among the Armed Forces.
The proposed amendments are as follows. New material is underlined,
and language to be deleted is struck through:
Sec. 805a. Article 5a. Authority to Convene Military
Commissions; Rules of Procedure
(a) The President may convene military commissions to----
(1) Serve as a substitute for civilian courts at times and
locations where martial law has been declared;
(2) Try foreign nationals as part of a temporary government
over occupied territories where the civilian government cannot
and does not function; and
(3) Try foreign nationals accused of violating the law of
war, during times of war.
(b) Pretrial, trial, and post-trial procedures, includes
modes of proof, for cases tried before military commissions,
may be prescribed by the President, which are not inconsistent
with fundamental guarantees of due process.
notes
Proposed Article 5a explicitly codifies the historically recognized
authority of the President to appoint military commissions. Subdivision
(a) states the three types and functions of military commissions,
recognized by the plurality in Hamdan. 126 S.Ct. at 2775-76 (citing
authorities). Subdivision (b) authorizes the President to promulgate
rules for military commissions. The baseline for such rules would be
fundamental concepts of due process.
``Sec. 836. Art. 36. President May Prescribe Rules
(a) Pretrial, trial, and post-trial procedures, including
modes of proof, for cases arising under this chapter triable in
courts-martial, military commissions and other military
tribunals, and procedures for courts of inquiry, may be
prescribed by the President by regulations which shall, so far
as he considers practicable, apply the principles of law and
the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts, but which
may not be contrary to or inconsistent with this chapter.
(b) To the extent practicable, the rules governing cases
triable in courts-martial shall be uniform for all Armed
Forces. All rules and regulations made under this article shall
be uniform insofar as practicable.''
notes
The amendment to Rule 36(b) would make it clear that the uniformity
requirement extends only to courts-martial procedures. It would thus
create a clean slate for adopting military commission rules that more
carefully address the balance between the function and purposes of
military commissions, the basic due process rights of an accused, and
preservation of national security.
Clarifying the uniformity requirement in Article 36(b) does not
answer the question of what rules should be adopted for military
commissions. But it does free the drafters of such rules from the
strictures of the very detailed procedural and evidentiary codes now
applied to courts-martial and yet still adopt rules that comport with
basic due process.
Chairman Warner. I was waiting to hear what you told your
Sunday school class. I don't mean to be impertinent, but it
seems to me that it's the adherence to the rule of law that
sets this Nation apart from those that chop off the heads.
Mr. Schlueter. Absolutely. Absolutely. I was asking them
for their input. I didn't tell them exactly what I was going to
say.
Chairman Warner. If you're given the opportunity, you can
say that one of your fellow students suggested that as an
answer.
Mr. Schlueter. I will. Thank you very much, Senator.
Chairman Warner. I found your testimony very enjoyable. I
do hope I can spend a minute with you before we conclude our
proceedings.
Now, we have Mr. Silliman, professor of the practice of law
and Executive Director, Center on Law, Ethics, and National
Security, Duke University.
Thank you for joining us.
STATEMENT OF SCOTT L. SILLIMAN, PROFESSOR OF THE PRACTICE OF
LAW AND EXECUTIVE DIRECTOR, CENTER ON LAW, ETHICS, AND NATIONAL
SECURITY, DUKE UNIVERSITY
Mr. Silliman. Thank you, Mr. Chairman.
I think we've heard the two extremes expressed already on
this panel. I think Professor Katyal would have us use courts-
martial, as they are currently existing, which would require
absolutely no action on the part of Congress. The President
could start them immediately. Professor Schlueter has suggested
that the baseline really ought to be the President's military
order and Military Commission Order Number 1. I'm going to
provide a path between those two, Mr. Chairman.
But I think we need to absolutely understand what the Court
did and what it did not do in Hamdan v. Rumsfeld. It did not
deal with the constitutional power of the President to create
military commissions. As a matter of fact, in a very lengthy
portion of that opinion, Mr. Chairman, it acknowledged, but it
did not affirm that it exists. What that case is all about is a
statutory interpretation, much like the Court did in a case
over 200 years ago called Little v. Barreme and in the Steel
Seizure case. It said, when the President is acting as
Commander in Chief under his Article 2, Section 2, powers, then
he must stay within the constraints that Congress has imposed
upon him, and, in this instance, those are in the UCMJ.
I might also say, Mr. Chairman, that I do not agree with
many on the first panel that Common Article 3, as interpreted
by the United States Supreme Court, extends, by that ruling,
outside the context of military commissions. I am well aware of
what Secretary England did within the DOD; and I would suggest
that, as a matter of policy, that makes sense. It was not, in
my opinion, Mr. Chairman, required, as a matter dictated by the
Supreme Court. The Supreme Court carefully looked at Common
Article 3, through the lens of Article 21. That's all it did.
That's why it made no other reference to any other provision,
but for the regularly constituted court. It didn't deal with
humiliating treatment or anything of the like. So, we're
dealing with a question of statutory interpretation, not
constitutional interpretation.
I want to limit my comments to commissions.
There are basically three options, Mr. Chairman. One, as
suggested, is to take the existing military commission rules
and procedures, and merely give congressional sanction to them,
basically putting everything back the way it was. Now, I think
we should know that the original military order of November 13,
2001, was basically copied from President Roosevelt's order of
1942, and it had absolutely no participation from military
lawyers. It was a matter of convenience to use that as a model,
even to the extent that if you look at that order, in paragraph
7(b), it reads in effect ``to suspend the writ of habeas
corpus,'' which the Supreme Court, in the Quirin case, struck
down. So, I do not think that the Military Commission Order
Number 1, which had to be constrained within the President's
military order, could not change that. It should not be the
base we ought to use.
Now, it is clear that if this Congress wanted to limit the
application of Common Article 3, it could do so domestically.
You have that right. Because a treaty and a statute, under
Article 6 of the Constitution, are treated as the same, and the
last trumps the earlier one. But I would suggest, Mr. Chairman,
that to do that, to reinstitute a system of procedures that was
criticized by the United States Supreme Court, and which do not
meet commonly recognized international law standards, would be
imprudent. So, I strongly suggest that's not what the Court
should do.
Senator Levin. You mean Congress.
Mr. Silliman. I'm sorry. Congress. Thank you, Senator
Levin.
A second option is to craft a completely new system of
rules and procedures for military commissions using the
President's military commission order as the base, and building
up by including those provisions, perhaps from the court-
martial procedures, perhaps from the international tribunals,
that, in the eyes of Congress, would be appropriate.
That approach, I'm sure, could cure most, if not all, of
the defects raised by the Supreme Court in its opinion. It
could create a more flexible standard for the admissibility of
evidence, I think, which is a concern for many of the members
of your committee. I do share the view, though, that however
you build a standard for the admissibility of evidence, that it
should not allow, under any circumstances, the introduction of
evidence that was acquired through torture or coercive
interrogation techniques that are outside either the DTA or the
current version of the U.S. Army Interrogation Manual.
Now, that second option would be a better option, in my
judgment, than reinstituting the current system, but I think
there is a third option that is better, that requires no major
legislation on the part of Congress, and that is to take the
UCMJ as the baseline, and then to make adjustments from that to
accommodate the needs of security and the concept that there
are some provisions of the UCMJ which may not be applicable.
Now, I would remind you, Mr. Chairman, that there is
already existing jurisdiction in the UCMJ, under Articles 18
and 21, for jurisdiction by military commissions. As the
Supreme Court told us, that in those commissions, underneath
the UCMJ--not outside of it, the way the President created it
that the rules and procedures should be uniform with court-
martial rules and procedures insofar as practicable. Yes, you
could legislate, and legislatively reverse what the Supreme
Court said. I don't think we need to do that, nor should we do
that.
Granted, there are probably two articles, maybe one more,
that would need to be amended by using military commissions
under the UCMJ. One that's been mentioned, I think several of
us agree Article 36 would have to be amended to allow for
military commissions, rather than courts-martial. I also agree
that there should be some kind of robust, substantial judicial
review in the Court of Appeals for the Armed Forces. I agree
with that. That could be done easily with a change to Article
66.
But you remember, sir, that this Congress, in 1951, made
the decision that, although you have the constitutional
authority to make rules governing the land and naval forces,
that, in Article 36 and Article 56, with regard to maximum
punishments, you did make the conscious decision to delegate to
the President of the United States the authority to make those
rules. It has worked well for 56 years.
So, I disagree with Mr. Dell'Orto that there are going to
be 140 or 145 articles of the code that need to be changed. I
totally disagree with that. At most, there would be three or
four that would require congressional action.
The other rules of procedure that would be changed, if they
need to be changed, are in the military rules of evidence and
the rules for courts-martial, in the Manual for Courts-Martial.
That's the President's executive order.
Yes, the NIMJ proposal, I think, generally is a good idea.
I think there needs to be, Senator Levin, at least a notice
requirement. I think that's very important so that Congress
knows what the President determines to be impractical.
I do suggest one thing, that the invitation to the first
panel was to solicit and to bring forward to this committee the
ideas for these changes. I think that's the wrong group, simply
because I spent 25 years as an Air Force lawyer, a prosecutor
and defense counsel, but I've been out for 13 years, teaching
law at Duke. What this committee needs to do is to solicit and
receive the comments of the Active-Duty lawyers. You had the
JAGs here last week, but even those two stars, those flag
officers, are not the ones that are practitioners. I'm talking
about the young captains and majors who know it far better than
any of us do, and it is their counsel that I think needs to be
heard.
Now, there is, perhaps, a risk that if that group were
convened and they could do it very quickly, Mr. Chairman, and
provided to the President, and perhaps provided to this
committee, their ideas on how to make those minor changes, that
the President might not agree with that group. That, we know,
happened 3 years ago, with regard to interrogation techniques.
I think, with the reporting requirement, or, Senator Levin,
perhaps something greater than that, that this body of
individuals who are the practitioners, who know it best, and
whose guidance I would look to, as far as those fine
refinements, can do it quickly to meet your timetable, but
they, far better than any of us, are the ones you should be
listening to.
So, Mr. Chairman, I would suggest that what this Congress
needs to do, as far as legislative change, is limited to a few
articles of the code. The vast changes to make the military
commission system, under the code, adaptable, so it provides
for captures on the battlefield, for evidence and chain of
custody, those can be done in the Manual for Courts-Martial,
under, perhaps, Article 18. You need not change the rest of the
provisions. It can be built into Article 18.
I do worry, sir, that in the perceived rush for legislative
action, that we take the risk of erring, because the system
that we build will not just be for Hamdan and perhaps 20 or 30
others, it will be a system that must be built for the future,
for future conflicts. So, let's not let the rush steer us away
from receiving the advice of those who know it best, and who
can provide you with that good advice and counsel.
Thank you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Mr. Silliman follows:]
Prepared Statement by Scott L. Silliman
Mr. Chairman, Senator Levin, and members of the committee. My name
is Scott L. Silliman and I am a Professor of the Practice of Law at
Duke Law School and the Executive Director of Duke's Center on Law,
Ethics, and National Security. I also hold appointments as an adjunct
Associate Professor of Law at the University of North Carolina, and as
an Adjunct Professor of Law at North Carolina Central University. My
research and teaching focus primarily on national security law and
military justice. Prior to joining the law faculty at Duke University
in 1993, I spent 25 years as a uniformed attorney in the United States
Air Force Judge Advocate General's Department.
I thank you for the invitation to discuss with the committee my
views on the Supreme Court's opinion in Hamdan v. Rumsfeld \1\ and what
your legislative response should be to that ruling. As you take
testimony and deliberate on the type of statutory system which could be
adopted or crafted for prosecuting terrorists for violations of the law
of war, I submit that the task before you extends far beyond Hamdan and
the few others at Guantanamo Bay currently facing military commissions.
It is to fashion a system for prosecuting terrorists that will
withstand judicial scrutiny in our courts, meet commonly accepted
international legal standards, and be available for use in other non-
traditional armed conflicts in the future. As I will explain in greater
detail later, I believe such a system should be predicated upon the
Uniform Code of Military Justice (UCMJ) and its core elements of
procedural protection, with minor modifications made where deemed
appropriate. I will first briefly discuss military commissions in
general and the substance of the Supreme Court's ruling in Hamdan
before turning to what I believe are the legislative options currently
under consideration.
---------------------------------------------------------------------------
\1\ Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006.)
---------------------------------------------------------------------------
military commissions generally
Military commissions have been used to try those accused of
violations of the law of war as far back as the Revolutionary War when
Major John Andre, Adjutant-General to the British Army, was prosecuted
in 1780 on a charge that he had crossed the battle lines to meet with
Benedict Arnold and had been captured in disguise and while using an
assumed name.\2\ Others were conducted during the Mexican and Civil
Wars, and more recently during World War II.\3\ There are actually
three different types of military commissions: martial law courts,
occupation courts, and war courts.\4\ Martial law courts have been used
when martial law is declared, such as during the Civil War \5\ and in
Hawaii during World War II.\6\ An occupation court can be used when the
United States is an occupying power, such as in post-war Germany when
an American dependent wife was charged with murdering her military
husband in violation of the German criminal code.\7\ Finally, war
courts have been used to prosecute violations of the law of war during
a period of recognized armed conflict, such as during World War II.\8\
The military commissions which were established by President Bush in
his Military Order of November, 13, 2001,\9\ and which were envisioned
for use at Guantanamo Bay were of this last type, war courts.
---------------------------------------------------------------------------
\2\ See generally Scott L. Silliman, On Military Commissions, 36
Case W. Res. J. Int'l L. 529 (2005); Louis Fisher, Military Tribunals
and Presidential Power (Univ. of Kansas Press 2005).
\3\Id.
\4\ Major Timothy C. Macdonnell, Military Commissions and Courts-
Martial: A Brief Discussion fo the Constitutional and Jurisdictional
Distinctions Between the Two Courts, The Army Lawyer, March 2002, DA
PAM 27-50-350, 19, 37.
\5\ Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
\6\ Duncan v. Kahanamoku, 327 U.S. 304 (1946).
\7\ Madsen v. Kinsella, 343 U.S. 341 (1952).
\8\ Ex parte Quirin 317 U.S. 1 (1942); Johnson v. Eisentrager, 339
U.S. 763 (1950).
\9\ Military Order, Detention, Treatment,and Trial of Certain Non-
Citizens in the War against Terrorism, 66 Fed. Reg. 57,833 (2001).
---------------------------------------------------------------------------
the court's opinion in hamdan v. rumsfeld
The first issue facing the Court was jurisdictional could it still
rule on Hamdan's case since the Government argued that the Detainee
Treatment Act (DTA),\10\ enacted on December 30, 2005, ``stripped'' the
Court of the power to hear Hamdan's petitions for habeas and mandamus,
even though they had been filed in the district court over 2 years
earlier and the Supreme Court had granted certiorari almost 2 months
prior to the President signing the act into law. Using principles of
statutory construction, the Court ruled that it retained
jurisdiction.\11\
---------------------------------------------------------------------------
\10\ Pub. L. No. 109-148, 119 Stat. 2739 (2005), hereinafter DTA.
\11\ Hamdan, supra note 1, at 2769.
---------------------------------------------------------------------------
On the merits, the Court initially probed the interplay between the
powers of the President and those of Congress in time of war, raising,
but not answering, a question left lingering from Milligan:
``Whether Chief Justice Chase was correct in suggesting that
the President may constitutionally convene military commissions
'without the sanction of Congress' in cases of 'controlling
necessity' is a question this Court has not answered
definitively, and need not answer today.'' \12\
---------------------------------------------------------------------------
\12\ Id. at 2774.
The Court went on, however, to specifically reject the Government's
assertion that the President's authority to convene military
commissions flowed from statute, whether it be the Authorization for
the Use of Military Force (AUMF),\13\ the DTA, or the UCMJ.\14\ In one
sentence of singular significance, albeit buried in a footnote, the
Court clearly foreshadowed its principal holding:
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\13\ Pub. L. 107-40, 115 Stat. 224 (2001).
\14\ ``The Government would have us dispense with the inquiry that
the Quirin Court undertook and find in either the AUMF or the DTA
specific, overriding authorization for the very commission that has
been convened to try Hamdan. Neither of these congressional Acts,
however, expands the President's authority to convene military
commissions.'' . . . .``Together, the UCMJ, the AUMF, and the DTA at
most acknowledge a general Presidential authority to convene military
commissions in circumstances where justified under the 'Constitution
and laws', including the law of war.'' (Id. at 2774, 2775).
``Whether or not the President has independent power, absent
congressional authorization, to convene military commissions,
he may not disregard limitations which that Congress has, in
proper exercise of its own war powers, placed upon his powers.
See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637
(1952) (Jackson, J., concurring). The Government does not argue
otherwise.''\15\
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\15\ Id. n. 23.
The Court then discussed two statutory provisions which established
just those limitations, Articles 36(b) and 21 of the UCMJ, 10 U.S.C.
Sec. Sec. 836(b) and 821, respectively. The Court looked to the text of
Article 36(b),\16\ interpreting it to mean that procedures established
for military commissions must be uniform with those established in the
UCMJ for courts-martial unless such uniformity was not practicable.\17\
The Court ruled that the President's determination that such uniformity
was impracticable was insufficient to justify the variances from court-
martial procedures.\18\
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\16\ ``All rules and regulations made under this article shall be
uniform insofar as practicable.'' 10 U.S.C. Sec. 836(b).
\17\ Hamdan, supra note 1, at 2790.
\18\ Id. at 2791.
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With regard to Article 21,\19\ the Court ruled that Congress had
conditioned the President's use of military commissions on compliance
with the law of war, of which Common Article 3 of the Geneva
Conventions was a part and which dictated the use of a ``regularly
constituted court affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.''\20\ Because the
accepted definition of a regularly constituted court includes ordinary
military courts (courts-martial) but excludes all special
tribunals,\21\ the President's military commissions were not in
compliance with Common Article 3 since he had demonstrated no practical
need for deviating from courts-martial practice.\22\
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\19\ 10 U.S.C. Sec. 821.
\20\ Id. at 2796, citing the Geneva Conventions of 1949, 6 U.S.T.
at 3320 (Art 3(1)(d)).
\21\ Id.
\22\ Id. at 2797.
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Put most simply, the Court's ruled that in unilaterally creating a
system for military commissions, the President exceeded his authority
by running afoul of statutory limitations imposed by the Congress, in
this instance in the UCMJ.\23\ Since my testimony is limited to the
Court's ruling with regard to military commissions under the
President's Military Order, I will not address whether or to what
extent the Court's inclusion of Common Article 3 as a part of the law
of war impacts other applications of executive power in the War against
al Qaeda.
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\23\ In this regard, the Court's analysis in Hamdan is no different
from that in earlier cases. Little v. Barreme, 6 U.S. (2 Cranch) 170
(1804) and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
---------------------------------------------------------------------------
possible legislative options in response to the court's decision
One option being considered is to pass a law which which merely
gives legislative sanction to the prior system for military
commissions-putting everything back in place the way it was-
notwithstanding the Court's determination that there must be compliance
with Common Article 3. Because Article VI of the Constitution treats
statutes and treaties alike as ``the Supreme Law of the Land,'' \24\
and a later enacted statute displaces an earlier one,\25\ I believe
that, as a matter of domestic law, Congress could legislatively
restrict the application of Common Article 3 with regard to military
commissions. There is, however, no assurance that such a ``reblued''
military commission system would pass judicial muster and, at the very
least, it would invite additional challenges in the courts and further
years of uncertainty. More importantly, merely giving Congressional
sanction to the minimal level of due process in a military commission
system which was criticized as inadequate by the Supreme Court \26\ and
which fails to satisfy commonly recognized international legal
standards is, I believe, imprudent.
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\24\ ``This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.'' U.S. Const. Art VI, cl. 2.
\25\ See Head Money Cases, 112 U.S. 580, 598-599 (1884).
\26\ A military commission system with a similar lax standard for
the admissibility of evidence and little overall due process drew
criticism from two justices of the Supreme Court in an earlier era.
Although the Court upheld the constitutionality of the military
commission which convicted Japanese General Tomoyuki Yamashita,
Justices Rutledge and Murphy wrote scathing dissents about the lack of
due process requirements in that commission. Yamashita v. Styler, 327
U.S. 1, 26-29, 44-45, 48-66 (1946).
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A second option is for Congress to craft a statute authorizing a
completely new military commission system, using the President's
Military Order and Military Commission Order No. 1 \27\ as a base line
and ``building up'' to a higher level of due process by adding in
procedural protections from the UCMJ. Such a statute could which remedy
most of the defects which the Court cited in its opinion, and yet still
satisfy those who demand a more flexible standard for the admissibility
of evidence. For example, less reliable testimony such as unsworn
statements or hearsay is not allowed in our Federal and state courts,
but could be admissible in military commissions if Congress made that
the rule. Even under this more flexible standard, however, I strongly
believe that statements of an accused or others acquired through
coercive interrogation techniques should not be allowed into evidence
under any circumstances. If the statute provided that a detainee would
be present at all trial sessions, unless he became disruptive; if there
were provisions to ensure that classified national security information
was safeguarded; and if there was some provision for a more substantial
judicial review of a conviction, such as in the United States Court of
Appeals for the Armed Forces which deals with military justice issues,
such a system would, I think, satisfy the objections of most. In other
words, if virtually all the due process safeguards which currently
apply in courts-martial, save for a more flexible standard for the
admissibility of evidence, were grafted into a newly enacted military
commission system, that type of legislative response would be, I
suggest, a better option. I submit, though, that this option starts
from the wrong base line--the old system--and is unnecessary because an
already existing statute can readily be tailored to achieve a better
result.
---------------------------------------------------------------------------
\27\ Department of Defense Military Commission Order No. 1, Mar.
21, 2002, available at http://www.defenselink.mil/news/legalrefs.htm
(last visited July 17, 2006).
---------------------------------------------------------------------------
The third option, and the one I advocate, is to use the UCMJ \28\
as the base line, and then make whatever minor adjustments may be
necessary where certain provisions of the Code or the Manual for
Courts-Martial \29\ are deemed impracticable. The UCMJ is a fair and
well-proven system of law, created by Congress some 56 years ago partly
in response to the many criticisms of military justice actions during
World War II where there was little due process in courts-martial. It
is the military criminal code used to deal with misconduct committed by
members of our own Armed Forces, and the Supreme Court clearly implied
that it could appropriately and with judicial approval be used to
prosecute those at Guantanamo Bay. Further, and more importantly, the
Code already provides for jurisdiction to prosecute, either by courts-
martial or military commission, those who violate the law of war during
armed conflict,\30\ although I am unaware of any such trials being
conducted under this authority. If we were dealing with individuals who
were classified as prisoners of war, the Third Geneva Convention
requires that only a court-martial (or perhaps trial in Federal
criminal court) could be used to prosecute them; \31\ but those held at
Guantanamo Bay have not been so classified, so either system under the
UCMJ, courts-martial or military commission, is permitted. To use
courts-martial, the type of tribunal used for our own military
personnel, with its inherent procedural protections which meet and
sometimes exceed those in Federal criminal trials, is clearly not
appropriate.
---------------------------------------------------------------------------
\28\ 10 U.S.C. Sec. 801 et seq. (2000 ed.).
\29\ Manual for Courts-Martial, United States (2005 edition), Exec.
Order No. 13365, 69 Fed. Reg. 71333 ((2004) (hereinafter MCM).
\30\ Article 18 reads, in part, ``General courts-martial also have
jurisdiction to try any person who by the law of war is subject to
trial by a military tribunal and may adjudge any punishment permitted
by the law of war.'' 10 U.S.C. Sec. 818. Article 21 reads ``The
provisions of this chapter conferring jurisdiction upon-courts-martial
do not deprive military commissions, provost courts, or other military
tribunals of concurrent jurisdiction with respect to offenders or
offenses that by statute or by the law of war may be tried by military
commissions, provost courts, or other military tribunals'' 10 U.S.C.
Sec. 821. Article 2(a)(12) extends personal jurisdiction to those non-
military, non-U.S. citizens at Guantanamo Bay: ``Subject to any treaty
or agreement to which the United States is or may be a party or to an
accepted rule of international law, persons within an area leased by or
otherwise reserved or acquired for the use of the United States which
is under the control of the Secretary concerned and which is outside
the United States and outside the Canal Zone, the commonwealth of
Puerto Rico, Guam, and the Virgin Islands.'' 10 U.S.C. Sec. 802(a)(12).
\31\ Article 84 provides that ``A prisoner of war shall be tried
only by a military court, unless the existing laws of the Detaining
Power expressly permit the civil courts to try a member of the armed
forces of the Detaining Power. . .''; and Article 102 states ``A
prisoner of war can be validly sentenced only if the sentence has been
pronounced by the same courts according to the same procedure as in the
case of members of the Armed Forces of the Detaining Power. . . .''
Geneva Convention Relative to the Treatment of Prisoners of War, arts
84, 102, July 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
---------------------------------------------------------------------------
The use of military commissions, as provided for under the Code, is
therefore the better prosecutorial forum. Even before the enactment of
the UCMJ in 1950, military commissions were recognized as an alternate
form of tribunal for use by commanders in the field when courts-martial
were deemed inconvenient or impracticable.\32\ However, Congress in the
UCMJ stipulated that the rules and regulations under the Code should be
``uniform insofar as practical'' \33\ and, no matter how that provision
was interpreted in the past, the Supreme Court in Hamdan said that it
meant that ``the rules set forth in the Manual for Courts-Martial must
apply to military commissions unless impracticable.'' \34\ The task,
then, is to identify those court-martial provisions which would clearly
be impracticable when prosecuting terrorists by military commission. I
suggest that those articles of the UCMJ which would not, in part or in
whole, be practicable in military commissions are few; the greater
number would be in the Manual for Courts-Martial, an executive order,
which requires action only by the President, perhaps with congressional
approval.
---------------------------------------------------------------------------
\32\ The legislative history of Article 15 of the Articles of War,
the predecessor of Article 21 of the UCMJ, is relevant in this regard.
Army Brigadier General Crowder, then Judge Advocate General of the
Army, testified before the Senate Subcommittee on Military Affairs on
February 7, 1916, as follows:
``General Crowder: Article 15 is new. We have included in Article 2
as subject to military law a number of persons who are also subject to
trial by military commission. A military commission is our common-law
war court. It has no statutory existence, though it is recognized by
statute law. As long as the articles embraced them in the designation
``persons subject to military law,'' and provided that they might be
tried by court-martial, I was afraid that, having made a special
provision for their trial by court-martial, it might be held that the
provision operated to exclude trials by military commission and other
war courts; so this new article was introduced. . . . It just saves to
these war courts the jurisdiction they now have and makes it a
concurrent jurisdiction with courts-martial, so that the military
commander in the field in time of war will be at liberty to employ
either form of court that happens to be convenient. . . . Yet, as I
have said, these war courts never have been formally authorized by
statute.'' (Emphasis added) Testimony of Brigadier General Enoch H.
Crowder, United States Army, Judge Advocate General of the Army, on
February 7, 1916, before the Subcommittee on Military Affairs, United
States Senate, Revision of the Articles of War, S. Rep. No. 130, 64th
Cong., 1st Sess. 40.
\33\ UCMJ, Article 32(b), supra note 16.
\34\ Hamdan, supra note 1, at 2791.
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As to the UCMJ, I suggest that Article 31(b),\35\ requiring the
rendering of advice of rights to a person being interrogated who is
suspected of an offense, has no application in a military commission
procedure. Similarly, Article 32,\36\ requiring a pretrial
investigation prior to the convening of a general court-martial, would
be neither necessary nor appropriate. Finally, with regard to appellate
review of convictions of military commissions, Article 66 \37\ would
need to be amended by adding military commissions to the jurisdiction
of the service Courts of Criminal Appeals, and also adding a provision
for the President to designate which of the respective Courts of
Criminal Appeals would exercise jurisdiction over the commissions.
Since Article 67,\38\ regarding review by the Court of Appeals for the
Armed Forces, uses the term ``cases'', there appears to be need for any
amendment to that provision.
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\35\ 10 U.S.C. Sec. 831(b).
\36\ 10 U.S.C. Sec. 832.
\37\ 10 U.S.C. Sec. 866.
\38\ 10 U.S.C. Sec. 867.
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Proposed amendments to the UCMJ sponsored by the National Institute
of Military Justice (NIMJ), which are on record with the committee and
which I specifically endorse, would effect the change to Article 66. As
to excluding Article 32 from military commission procedure, the NIMJ
proposal also contains a recommended amendment to Article 36 which
would grant the President the authority to prescribe procedures for
military commissions, applying the principles of law and the rules of
evidence prescribed for general courts-martial (with the exception of
Article 32) insofar as he considers them practicable, as long as those
procedures are not contrary to or inconsistent with international law.
The amendment also contains a reporting requirement to Congress
regarding the President's determination of impracticability. Finally,
the NIMJ proposal includes an amendment to Article 21 \39\ which would
provide specific statutory authorization for the President to establish
military commissions (and provost courts) in time or war or pursuant to
an authorization for the use of force, as long as the commissions are
consistent with international law, including the law of war. Since I
take the view that the President, when acting pursuant to his commander
in chief powers under Article II, Section 2, is constitutionally
empowered to establish military commissions unless constrained by
Congress,\40\ I do not believe this proposed amendment to Article 21 is
necessary, but it may be prudent as an additional, statutory grant of
authority for him to establish a commission system pursuant to the
Code.
---------------------------------------------------------------------------
\39\ UCMJ, Article 21, supra note 30.
\40\ See Madsen v. Kinsella, supra note 7, at 348.
---------------------------------------------------------------------------
There are several provisions of the Manual for Courts-Martial which
would seemingly not be practical in military commission procedures,
but, as mentioned above, making changes to these provisions is within
the purview of the President but would also presumably be subject to
the reporting requirement of NIMJ's proposed amendment to Article 36.
The speedy trial rules governing courts-martial,\41\ as well as the
myriad rules governing the admissibility of evidence and the
application of the exclusionary rule,\42\ will need to be tailored to
meet the exigencies of captures and acquiring evidence in battlefield
environment while still maintaining a fundamental fairness to the
accused. The provisions which govern the admissibility of classified
and other sensitive government evidence (when requested by the accused)
\43\ which generally mirror the Classified Information Procedures Act,
\44\ would have to be amended to provide for the safeguarding and use
of classified and other sensitive government information to be
introduced by the government to prove the guilt of the accused, while
still ensuring measure of authenticity of that evidence. As to the many
changes to the military rules of evidence governing courts-martial
which might be required when applied to military commissions, a general
clause regarding exceptions could perhaps be added to M.R.E. 101 \45\
and, more especially, M.R.E. 1101 \46\ to effect that purpose.
---------------------------------------------------------------------------
\41\ MCM, supra note 29, at R.C.M. Sec. 707.
\42\ See generally MCM, supra note 29, at M.R.E. 301-504
\43\ Id. at M.R.E. 505-506.
\44\ 18 U.S.C. app. III Sec. Sec. 1-16 (1988).
\45\ MCM, supra note 29, at M.R.E. 101.
\46\ Id. at M.R.E. 1101.
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Finally, although I have offered a few proposed changes to the
rules and procedures for courts-martial which, to my mind, would make
them more adaptable for use in military commissions, I strongly urge
that a committee of judge advocates be formally convened to carefully
study and make recommendations to the President as to what may, in
their view, be required. They are the practitioners who know the Code
and the Manual best. If this proposed military commission system under
authority of the UCMJ is to provide an appropriate forum for
prosecuting those we now detain, as well as those who commit violations
of the law of war in future conflicts, we must ensure that perceived
pressures to legislate quickly do not cause us to err and fail in our
goal to establish a system which reflects our national values and which
satisfies commonly accepted principles of international law.
Mr. Chairman, Senator Levin, and members of the committee, thank
you again for inviting me to share my views with you. I look forward to
answering any questions you might have.
Chairman Warner. Elaborate somewhat on how we reach out to
this group. Are they structured in such a way?
Mr. Silliman. Mr. Chairman, I would recommend that you go
back to the JAGs who were before you last week, and you solicit
from them ideas coming from their trial practitioners. Every
Service has a system of trial lawyers and defense lawyers that
are in court virtually every day.
Chairman Warner. I'm familiar with that.
Mr. Silliman. Yes.
Chairman Warner. It's from that group.
Mr. Silliman. It is from that group that I think you need
to hear. We can give you conceptual ideas on where changes
should be made. Those are the ones who are actually in court.
Also, Dwight Sullivan's defense lawyers for the military
commission system. Charlie Swift, Lieutenant Commander Swift,
who testified before in the Judiciary Committee, is one of
those who would give you great advice and counsel on how these
systems can be built to be fair and yet meet the exigencies of
battlefield. I think again, not to change the charter that you
created this morning, Mr. Chairman, it is vital that as you
receive that type of information, which you need, that you not
overlook those that can give you the best counsel, because
they're doing it now. I'm not. They are.
Mr. Schlueter. Could I also respond to that, Senator? I
don't know if you had intended to call former retired Major
General John Altenberg, who is the appointing authority for the
commissions, or any of the individuals who were otherwise
involved in prosecuting the cases, but if you're analyzing the
current rules concerning military commissions and how they had
intended to apply them, it strikes me that they could provide
helpful information.
One concern I'd have about just reaching out to the junior
JAGs is, if they haven't had any hands-on experience with the
commissions themselves, they can tell you firsthand how the
courts-martial system works, but I would hope that, at this
stage, we'd at least have some experience from those actually
on the ground. One was quoted earlier, by one of the earlier
panelists, who said that he wished that they tried court-
martials to begin with. So, I'd recommend you consider those
individuals, as well.
Chairman Warner. Did you wish to reply to that observation
there?
Mr. Silliman. No. I'm well familiar with retired Major
General John Altenberg, and I just think that because he is the
appointing authority for the current commission system, it may
be a little bit awkward for him to provide that type of advice.
However, I think that when you look to the DOD, and the
military commission system is a part of the DOD, that you allow
the JAGs, who provide the lawyers for that system, to go within
their own ranks and select the four, five, or six practitioners
who know the system far better than any of us ever could. Then,
to allow them to provide that type of listing of which military
rule of evidence, which rule for court-martial, and, on the
larger scale, which article of the UCMJ, might need to be
amended. Again, my strong suggestion, Mr. Chairman, is as to
the code itself, which requires action of Congress, the number
of articles that need to be changed or amended are very few.
Mr. Katyal. On this question, I would add to Professor
Schlueter, I think his advice is a good one. I'm a civilian
defense counsel in the Office of Military Commissions. My
opposite is a prosecutor, Stu Couch, who I think is a fantastic
prosecutor and, I think, could illuminate for the committee or
others on his team. It doesn't need to be General Altenberg,
why they think the rule existing rules for court-martial aren't
enough.
From my perspective, I think cases like Hamdan could be
tried tomorrow in an court-martial. The ideas about hearsay,
chain of custody, classified information, I think, can all be
handled within the existing system. I think it would be very
helpful to hear from the prosecutors in the commissions office
as to why they disagree.
Chairman Warner. All right.
I would invite this gentleman, that you've designated, to
visit with our counsel for a few minutes, at the conclusion of
this hearing.
Senator Levin, I'm going to let you lead off the questions.
Senator Levin. If I understand your point, Professor, you
believe there are so few changes that need to be made in the
UCMJ, statutorily, they're the advice that they would give
would not be as much statutory changes as to changes in the
manual. Is that accurate?
Mr. Silliman. I think you would invite them to do both,
Senator Levin.
Senator Levin. But if you're right, there would not be very
many that they would be forwarding to us that require statutory
changes, and most of their recommendations would be UCMJ
changes. Am I reading you right?
Mr. Silliman. Yes, you are, Senator. The statement that
Senator Cornyn used, that came from Mr. Dell'Orto, about 140 to
145 articles of the code that would need to be changed, I
think, is, with all due respect, absurd. There aren't that many
more articles in the code to begin with. What I'm suggesting is
that there's confusion, as far as what requires congressional
action and what requires a change by the President of the
United States in the Executive order. I would, again, suggest
that you not disturb that fundamental delegation of authority
that was made in 1951 to the President, to allow him to craft
those, with your knowledge, with notice to you, with some kind
of cooperation, but I do not believe that it would be, in my
judgment, appropriate for Congress to start to legislate what
has previously been within the purview of the President, as far
as rules and military rules of evidence.
Senator Levin. Now, if we do that, however, we're not going
to be very different from what his current commissions are?
By the way, let me back up. I think what Senator Cornyn was
saying is, it would take, according to the DOD; this was not
his assessment, he said that the DOD had indicated there would
have to be 120 changes--did he say, in the code or in the
manual?
Mr. Silliman. No, I didn't mean to say that's Senator
Cornyn's comment.
Senator Levin. No. He's saying the code.
Mr. Silliman. But I think the reference was about 150
changes to the military rules of evidence, 170 to the rules for
courts-martial, and I think the comment was 140-plus articles
of the code would have to be changed. I think that's incorrect.
Senator Levin. We're going to get that list.
Mr. Silliman. Right.
Senator Levin. We would be happy to share that with you,
and then you could comment specifically on it. But I'm just
wondering whether or not, if we simply provide a notice
requirement for the President, whether we're not going to find
the President doing what he's done before, which is to get as
close to the commission rules as he possibly can; whereas, I
don't think that's the basic thrust of the Court.
Mr. Silliman. Senator, if, in fact, this list is done by
the Active-Duty military lawyers.
Senator Levin. It can be done by the President.
Mr. Silliman. Well, no, but.
Senator Levin. The President's counsel.
Mr. Silliman. Input comes from the military lawyers.
Senator Levin. They tried it once.
Their input was not accepted, when it came to rules of
detention.
Mr. Silliman. I think this Congress has reacted very
strongly to the fact that the military lawyers were shut out.
It was noted in several investigations.
Senator Levin. It may have been noted, but we didn't react
very strongly, in my judgment.
Mr. Silliman. All I'm suggesting, Senator Levin, with all
due respect is.
Senator Levin. Some members of it did, obviously. Some of
us did. But I don't think Congress responded.
Mr. Silliman. I just worry, sir, as far as the long-term
approach, that if we're looking to create a system that is not
just for the 10, 20, or 30 that we're dealing with now, but
that will be a system in place for years, that we not shift the
balance so far that Congress itself must legislate these rules.
Again, the fundamental delegation, from the Constitution
through the UCMJ, is to the President. Now, if the President
has disregarded it in the past, then I think steps should be
taken to ensure that there be some notice, some requirement
there. I do not recommend that Congress take on the
responsibility of legislating this system.
Senator Levin. My final request would be then to all three
of you would be to give us your starting point, whatever it is,
and the changes that you believe are either desirable from that
starting point. That usually would be if you start from the
UCMJ, I would think or required my hunch would be, that verb
would be appropriate if your starting point is the commission
order. But whether my verb is correct or not, the changes that
you would urge upon the committee, from whatever starting point
you choose and if you choose no starting point, whatever--
however you want to recommend and I know the chairman's very
much inclined to get advice from wherever sources we can, but I
would surely agree that we should ask the JAGs to have some of
their people, who are in the middle of the cauldron, to give us
their practical experience on what specific actions we ought to
take legislatively. Also, what changes they would recommend in
the manual in order to accommodate what, I guess, has been
called practicality or necessity or common sense. Obviously,
there are some commonsense differences here between the way we
are going to handle these criminal trials and the way we would
handle criminal trials of people who are charged with crimes
who are wearing our military uniform, just based on the
circumstances and without going into too many details, what is,
I think, obvious.
Mr. Silliman. In my prepared statement, Senator Levin, I do
give you those thoughts.
Senator Levin. Are those examples or is that comprehensive?
Mr. Silliman. That is one of those ambiguous words, I
guess, Senator Levin.
Senator Levin. No, I mean, is that intended to be a full
listing of the changes that you would recommend?
Mr. Silliman. No, it is my suggestion, Senator, but I also
do say, at the end of my prepared statement, that I do very
strongly recommend that you go to the those Active-Duty JAGs.
Senator Levin. No, I didn't mean that. I was talking about
you, yourself, in terms of any specific recommendations.
Mr. Silliman. I do refer to Article 36(b), 31(b), and also
any specific series of rules for court-martial and military
rules of evidence that I think may be considered impracticable,
as far as military commissions. Yes, I do.
Senator Levin. We would welcome any additional specifics
from you and from our other panel members, a list of specifics
that you would recommend to us, because we're going to have to
do this, one way or another, and we want to do it right. The
chairman, obviously, wants to proceed in a thoughtful way, and
that's what he's doing. He's doing it with the support of all
the members of the committee, whether we agree with the final
outcome or not. The process which we are using here is one
which we intend to be as thoughtful and as thorough as we
possibly can make it under these circumstances that we face.
Thank you all.
Chairman Warner. Yes. I join with Senator Levin on that.
He's talking about where we would start. Do give us some idea
of where you want to end up, though. It's one thing to give us
a starting place, but we want to make sure we have your views
as to where we should end up on this thing.
The situation we're in we're at war, as a Nation. I know
this institution, I think I say with a sense of humility, as
well as anybody, and I know what has to be done.
My press secretary came up and turned on the mike; it's
like the President the other day at the Big 8, he had his mike
on at the wrong time. Now mine was off at the wrong time.
[Laughter.]
I'll start all over again.
I join with Senator Levin, as you looking at your starting
places, make sure we know where you'd like to see it end up.
But, gentlemen, we're at war. We cannot leave this thing
dangling in this situation. The Nation was somewhat taken aback
at the far reach of the Supreme Court on this matter. I just
know for a fact how this institution works. If we don't get
this thing done in this Congress, mind you we convene with the
new members getting to sign up for pay the first week in
January, and then we go home for 3 weeks. So, that's all we
achieve in January. Then, February, we're trying to form into
our committees and our leadership. I'm not here to fault
Congress; it's just the way this institution works. I do not
think we can leave this situation dangling out here without
some legislative solution. So, we're going to do our best, and
we're fortunate to have folks like yourselves who are willing
to step up and help us. I thank you.
Mr. Silliman. Mr. Chairman?
Chairman Warner. Yes.
Mr. Silliman. One thing, in following what you said. In
light of the time, I think it's important that this committee
also have a precise focus. The Supreme Court did not strike
down interrogation practices of the United States. The Supreme
Court did not strike down any other application of presidential
executive power in the war on terrorism. It dealt specifically
and precisely with military commissions. There have been a lot
of questions and comments from the committee with regard to
concerns about interrogation techniques, quite apart from
whether evidence is admissible. I think you can't solve all of
that now. If your goal is to respond directly to the Supreme
Court opinion and to put back in place some system for
prosecution, I think that can be done, but it must be done to
the extent that you can do it apart from those other concerns.
Senator Levin. Mr. Chairman, if I can comment on that.
Chairman Warner. Sure.
Senator Levin. I just fully agree with that, and I tried,
in my opening statement, to carve that out, because there's
been so much misunderstanding, including in the media, about
what we are dealing with. We're not dealing with detention and
how long people can be detained. It is a fascinating,
complicated question. If this is a long war, if it's a war with
no known end, when do people ever have a prospect of leaving
detention? It's a tremendously important question. But we're
not dealing with that. We're not dealing with interrogation
techniques. Lord knows, we should do that, with a lot of
oversight. But that's not the question we're dealing with,
except as it might apply to admissibility of evidence in a
criminal trial. We're dealing with a criminal trial. We have to
do it right, but it's a very narrow group of people, maybe 10
or 20 or 30 people. But, as you all point out, we're
legislating for the future, it's not just for these 30 people.
We should recognize that it's not the hundreds that are there
that we're dealing with
If I may say, Mr. Chairman, if we do take additional time
to do this--and I hope we don't need to--it's not as though
people are going to be released to the battlefield by our
delay. So, I hope we can do it this year. I'm with the
chairman. I support that effort. But it's not as though that if
we do delay, that they're going to have a right to a speedy
trial. There's no suggestion of that. It's also true, on the
other side of this, that whenever we adopt these rules, that
when these trials take place, that when they're acquitted, if
they are acquitted, they're not free. They are still in
detention. That's lost track of; as well, I'm afraid, by
members at times and by the media and by the public. It's a
very narrow issue that we have to grapple with, and we ought to
do it right. Hopefully, under our chairman's leadership, we can
do it this year.
Chairman Warner. We thank you very much. Thank you, Senator
Levin. Again, we express appreciation of the entire Senate for
your participation today.
The hearing is adjourned.
[The prepared statement of William E. Eckhardt is also
included for the record:]
Prepared Statement by William E. Eckhardt
military commissions post hamdan
Members of the Senate Armed Services Committee: It is an honor and
a privilege to be able to express my views on how Congress should
proceed in light of the recent Hamdan decision. Unfortunately, such a
sensitive and important decision must be made under severe time
constraints and political pressure. Rules governing military
commissions are old and unrevised but must be retooled to apply in
frighteningly different and unimagined circumstances.
Military legal problems are solved using two tools--history and
law. Any approach must be multidisciplined. A solution cannot be found
while wearing ``purely legal blinders.'' For example, the rule of law
on the battlefield is applied using rules of engagement which are
composed of international law, domestic law, diplomatic constraints,
political constraints, and technological constraints. These different
factors have to be combined and harmonized to provide a workable
procedure. The goal is to promote the rule of law, but many
interdisciplinary factors--not just law--must be considered. In short,
any military legal system must be practical and flexible.
Turning first to history. No--and I repeat--No country that has had
a serious terrorism problem has been able to use its normal criminal
law system. In societies pressed by the threat of terror, adjustments
often are made for apprehensions, for detentions, for evidentiary
rules, and for protection of the system (buildings, judges, juries).
The most immediate problem before this committee deals with procedure--
handling classified material and dealing with hearsay. The debate today
on rules for military commissions, unfortunately, will be repeated--in
all probability--for our civilian Federal rules of evidence. This is
the first of several very serious civil liberty issues that we must
face as a country in this new time of terror.
Legal problems in an age of terror should be handled with a two
step approach. First: Does the government need the unusual ``power''?
Has it justified its request? Second: If there is a demonstrated need
for the procedure, change or power, its enactment should be balanced
with steps to control the exercise of that power and with heightened
review procedures to be certain that there is no abuse and that justice
is done.
Turning to the issue at hand, this committee must decide how to
constitute military commissions, must decide what evidentiary rules and
review procedures are required, and must help clarify the United State
Government's position on Geneva Convention Common Article 3.
commission system
The United States needs a system to exercise judicial power outside
the boundaries of the continental United States. Judicial power within
the United States is reposed in our Civilian Article III court system.
Historically, application of judicial power outside the continental
United States has been done by military law with its twin components--
Courts-Martial and Military Commissions--under the authority of Article
I. The Courts-Martial System is the gold standard because of its years
of maturing under the auspices of the 1950 Uniform Code of Military
Justice (UCMJ) and the 1983 Military Justice Act authorizing Supreme
Court review of military justice. However, we are now paying the price
for long ignoring the true ``military'' in military law. We are
presently forced to concentrate on military commission law with its old
rules and quaint customs.
We must not be distracted by the ``military'' label of these
Commissions. They are ``military'' because the logical place to place
this power is in the military code and because the military is the
agent for exercising this Federal judicial power. Because they are
``military,'' they must not be perceived as second class or less than
legitimate. Historically, after limited use in the Revolutionary War,
General Winfield Scott used military commissions extensively in the
Mexican War. Later, at the turn of the century in the Elihu Root era,
the judicial power of the United States was exercised extra
territorially on a broad scale by commissions and by territorial
courts. Applied judicial power exercised under Article I must be both
practical and flexible. That power must never veer from the Rule of Law
but, at the same time, it must be applied with common-sense practical
flexibility.
commission procedures: evidentiary rules; safeguards
The immediate evidentiary problems appear to be how to treat
hearsay and how to handle classified information. Following the method
for handling legal problems in a time of terror noted previously,
Congress needs to ascertain if these evidentiary rules are necessary.
It appears to me that the need is self-evident that unique rules are
required. The next step is to determine safeguards in their
application. In short a judge should be required to make certain
factual findings that would be extensively reviewed for abuse of
discretion. Basic due process would require that no evidence be
admitted that a judge found to be ``unreliable.'' Certainly, no
evidence that is the result of torture should be admitted. National
security rulings should be tested rigorously by requiring strict review
of fact finding on the part of the presiding judge.
Congress should pay special attention to the review process. When
the government requires an extra ``iron fist'' there should always be
appropriate ``checks and balances'' in the review procedures. The
public must have confidence--both domestically and internationally--
that justice has been done.
geneva convention common article 3
Congress must pay close attention to the Common Article 3 problem.
The technical Geneva Convention Regime is in grave peril. The legal
system rests on twin pillars: state restraint and reciprocity. Both
pillars are missing in our age of terror. Yet the ideals and principles
of the Geneva Convention are the very essence of the ethic of the
profession of arms. That ethic is founded upon long respected just war
tradition, ancient concepts of military chivalry, and commitment to the
rule of law. The United States will follow Geneva Convention principles
even if there is no technical requirement to do so. But if one side
totally refuses to acknowledge or abide by time-honored rules designed
to protect civilians, prevent unnecessary suffering, and safeguard
property from unnecessary destruction, it may be unreasonable to expect
strict, technical compliance by the other side.
Common Article 3 presents the problem of how to treat individuals
captured on the battlefield who do not comply with the rules. Should
individuals who do not follow the rules be entitled to the special and
privileged status of prisoners of war? The United States Government for
years--through numerous administrations--has taken the principled
position that one must obey the rules before one is entitled to the
privileged status of prisoner of war. Our European Allies have taken a
different stance--largely for supposed humanitarian reasons. The
Europeans believe that all persons detained should be treated as
prisoners of war. The United States believes that such a position
totally undermines the very basis for having a Geneva Convention system
and discourages compliance with the rules of war. In this very public
dispute, the United States is morally correct but its position has been
a public relations disaster. However, everyone agrees, as the United
States Government has repeatedly stressed, that detainees must be
treated humanely.
Because of the controversy surrounding this issue, Congress needs
to clarify and to give legitimacy to an authoritative position of the
United States Government regarding the applicability of Common Article
3. I am concerned that there may be a difference in the standards of
treatment of detainees required by the McCain Torture Legislation and
by the ruling of the Supreme Court in Hamdan. Regardless of the
technicalities here, confusion is the enemy. Our soldiers deserve and
our Nation's honor requires clarity. Further, clarification would seem
to be necessary to give complete legitimacy to future military
commissions.
conclusion
In conclusion, Congress is now called upon to address the true
``military'' in military law. It must visit an ancient concept of
military commissions and give them vitality and legitimacy. Congress
must debate for the first time a change in courtroom rules necessitated
by terrorism. Importantly, it must clarify the status of Geneva
Convention Common Article 3 at a time when the entire Geneva Convention
Regime is in question.
Yet, I am confident that Congress will provide a legitimate
military law system--just as it did in the Military Justice Act of
1950. As with that historic Act, the modernized military commission
system can become a respected model which will be admired and emulated.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John Warner
appellate procedure
1. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr.
Silliman, in your opinion, does the appellate procedure set out in the
Detainee Treatment Act (DTA) for final decisions of military
commissions (i.e., a limited scope of review in the District of
Columbia Circuit) comply with the requirements of Common Article 3
relating to ``judicial guarantees?''
Mr. Fidell. The authoritative commentary to Common Article 3
cautions (III Pictet at 40) that ``[a]ll civilized nations surround the
administration of justice with safeguards aimed at eliminating the
possibility of judicial errors.'' The DTA's limitations on the scope of
appellate review needlessly raise a question as to whether the military
commissions meet that standard. Even if the appellate review prescribed
by the DTA satisfies Common Article 3's minimal requirement relating to
``judicial guarantees,'' it should be corrected because it is out of
step with normal review of military criminal cases and because it vests
appellate review in the wrong court.
The United States already has an expert military appellate court:
the United States Court of Appeals for the Armed Forces (USCAAF)
(previously known as the United States Court of Military Appeals).
USCAAF has been in existence since 1951, and has decided thousands of
cases. It has an excellent reputation and is an institution of which
our country can be proud. There is no reason to shunt the appellate
review of military commission cases into the United States Court of
Appeals for the District of Columbia Circuit, a court whose involvement
with military justice matters is confined to occasional Administrative
Procedure Act cases and even rarer military habeas corpus cases.
The fact that the DC Circuit has ruled as it has (i.e., for the
government) on Guantanamo-related habeas corpus cases is not a proper
basis for making it responsible for direct review of military
commission decisions. Doing so reflects a kind of legislative forum-
shopping that does not contribute to public confidence in the
administration of justice, despite the high regard in which the DC
Circuit is widely and justifiably held.
Mr. Katyal. No. Section 1005(e) of the DTA, under the
interpretation given to the Act by the government, turns the
traditional concept of a fair trial on its head. It postpones
constitutional review of trial procedures until after trial and
conviction have occurred. The government has claimed that ``review
after military justice verdicts is the norm, not before the verdict.''
But as the Supreme Court said in Hamdan, that principle derives from
courts-martial--a battle-tested system with independence and a
tradition. Here, when dealing with the civil courts, the tradition has
always been to review military commissions upfront, as in Ex Parte
Quirin (1942) and Hamdan itself.
The DTA system is problematic for four reasons. First, review is
only granted automatically to those defendants who are imprisoned for
longer than 10 years or who face the death penalty. 1005(e)(3).
Because many of the individuals currently detained are accused only of
conspiracy, the DTA cuts off automatic review in most cases that could
possibly be brought to trial. For these individuals, appellate review
is granted only at the discretion of the court of appeals. Without an
avenue for appeal before or during the trial, these prisoners would
face a court with unfettered discretion.
Second, even in those cases where judicial review is possible, the
DTA creates the possibility of an unnecessarily long trial process.
Under the DTA, the first trial must proceed to completion and result in
a final decision. In the nearly 5 years since the tribunals were
established, not a single trial has even commenced. Moreover, even if a
trial were to proceed in full, its result would only be final upon the
President's determination to that effect. See Commission Order No. 1
6(H)(6). In effect, the DTA puts judicial review at the mercy of
prosecutors and the President. Then, after the final decision, after
review in the DC Circuit Court of Appeals, and presumably after review
in the Supreme Court, a decision overturning the verdict would result
in yet another trial. Prosecutors would have to scramble to retry these
defendants 8-10 years after their capture. Reducing the scope of
judicial review to final decisions only subjects both the defendants
and prosecutors to excessive delays, high costs, and a potentially
interminable trial process. Basic standards of criminal procedure, as
well as administrative efficiency, require that trial procedures, writ
large, be constitutional the first time around.
Third, the limited scope of review in the DC Circuit also threatens
basic fair trial rights. As Justice Kennedy notes in his concurrence,
``provisions for review of legal issues after trial cannot correct for
structural defects . . . that can cast doubt on the factfinding process
and the presiding judge's exercise of discretion during trial.'' Hamdan
v. Rumsfeld, 26 S.Ct. 2749, 2807 (2006) (Kennedy, J. concurring).
Moreover, if the military trial system is struck down or modified by
the courts after conviction, individuals would face retrial after
having previewed their defense for the prosecution. The administration
has already afforded itself a lopsided advantage in preparing evidence
for the trials of suspected terrorists ,with limited rules for
disclosure and review. A system where defects are remedied only by
retrial exacerbates the asymmetry.
Fourth, the DTA cuts out the most relevant military court--the
USCAAF. In 1975, the Supreme Court in the Councilman decision looked to
this court as providing a crucial degree of independence from the
executive in the military justice system. It is a court that is the
envy of the world, with specialized expertise in military matters.
Given the fact that the administration is saying that the civilian
justice system is not appropriate to try suspected terrorists, one
would think that the existing military appellate court, the USCAAF, is
far better suited to hear these cases than the civilian U.S. Court of
Appeals for the District of Columbia Circuit. Decisions from this
regular military appellate court may also be subject to more deference
in the Supreme Court than the DC Circuit.
Mr. Schlueter. I believe that the appellate procedure set out in
the DTA, for final decisions by the DC Circuit Court, is sufficient to
comply with Common Article 3. As I understand the general scope of
Common Article 3, that provision provides the signatory states with
some flexibility in the ways in which they provide basic due process to
those who are tried in that state's courts. In this instance, the
provision provides for ``civilian'' review of the decisions, and that
in the minds of many in the public is a desirable procedure.
Mr. Silliman. No, I don't think it does because it excludes from
the nondiscretionary grant of review anyone convicted by a military
commission who receives a sentence of less than 10 years; and Common
Article 3 makes no distinction based upon quantum of sentence. Further,
the scope of review is merely procedural (``whether the final decision
was consistent with the standards and procedures specified in the
military order. . .''). I'm not sure that I interpret the second clause
(section 1005(e)(3)(D)(ii) as enlarging that limited scope (``to the
extent the Constitution and laws of the United States are applicable,
whether the use of such standards and procedures to reach the final
decision is consistent with the Constitution and law of the United
States'').
2. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr.
Silliman, what changes in appellate procedure, if any, would you
recommend?
Mr. Fidell. National Institute of Military Justice (NIMJ)
recommends that direct appellate review of military commissions be
vested in the USCAAF, and that the contrary DTA provision be repealed.
We also believe Congress can properly dispense with intermediate review
by a Service Court of Criminal Appeals (CCA). However, USCAAF should
have plenary review power akin to that exercised by the CCAs, so that
it can review findings for proof beyond a reasonable doubt and
sentences for appropriateness, as well as any legal issues that may be
presented. There is certainly no need for a ``review panel'' or ``Court
of Military Commission Review.''
Mr. Katyal. As I testified before the committee, the single most
important decision Congress must make if they adopt military-commission
legislation is to craft an ``anti-abstention provision.'' This would
create an expedited review process, modeled on by the Bipartisan
Campaign Finance Reform Act (McCain-Feingold), and would protect the
rights of both sides in what is likely to be an unprecedented new trial
system. Challenges would go first to a three-judge district court, with
immediate certiorari in the Supreme Court. Federal courts must play
their role at the outset in order to avoid the trauma to the Nation of
potentially having convicted terrorists set free, and to protect the
minimal trial rights of defendants consistent with constitutional and
treaty-based obligations. See my prepared testimony at the July 19
hearing (hereinafter ``SASC Testimony'') at pp. 13-14.
Mr. Schlueter. I would not recommend any changes in the appellate
procedure for reviewing convictions of those found guilty by military
commission. I disagree with the view that those individuals should have
their cases reviewed by the existing Service appellate courts (e.g.,
the Army Court of Criminal Appeals) and then the USCAAF. The appellate
review in those courts can take several years. In fact the latter court
recently adopted a series of rules to ensure that servicemembers
receive timely appellate review of their courts-martial convictions. In
a series of cases, the military courts have had to deal with post-trial
delays spreading out over as much as 4 years.
In the case of appellate review of convictions by military
commissions, it is critical that procedure be efficient and swift. If
military courts were to have jurisdiction, if there were attempts to
expedite those cases, and not those of American servicemembers, in
effect the detainees would receive favored treatment.
Mr. Silliman. I would recommend that appeals from convictions by
military commissions be heard in the USCAAF, rather than in the United
States Court of Appeals for the District of Columbia. The USCAAF is an
Article I court, created by Congress in 1950 as part of the Uniformed
Court of Military Justice (UCMJ) to hear appeals of courts-martial from
all the Services, and is well versed in military justice issues.
war crimes statue
3. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, in
light of the Court's Common Article 3 holding, does Congress need to
amend the War Crimes Statute (18. U.S.C. 2441) to ensure military
interrogators are protected from criminal liability as they perform
their duties?
Mr. Katyal. A statute that would grant immunity for violations of
Common Article 3 would be a gross violation of our treaty obligations,
as well as customary international law. Although Congress has the power
to make such an amendment, it would come at great political cost and
would not protect military interrogators from prosecution abroad. Under
the principle of ``universality,'' courts abroad may exert jurisdiction
over any defendant charged with war crimes that they are able to take
into custody. In additional to foreign national courts, the founding
charters of numerous international tribunals, including the
International Criminal Court, expressly recognize violations of Common
Article 3 as war crimes.
Before accepting any claim that the executive branch ``needs'' a
``fix'' to either the War Crimes Act or Common Article 3, Congress
should understand what the executive's implementing rules are with
respect to these laws. For example, the executive branch has the power
under Article 2 of the Constitution to ``take care'' that the laws are
faithfully executed--which means that it wields the prosecution power.
I would imagine that this power would fairly include the ability to
decline to prosecute any and all War Crimes Act violations in a given
category of cases. If so, it is not clear what purpose, if any, would
be served by legislating an exemption or clarification of the existing
act. I believe that it is absolutely essential that Congress inquire as
to whether the administration believes that its Article 2 prosecution
power gives it the ability to decline to prosecute cases prior to
government activity that might otherwise violate the statute. I also
think it imperative that the committee ask the executive for any and
all memoranda of understanding or other agreements, both formal and
informal, between the Department of Justice (DOJ) and other Government
agencies with respect to prosecution under the War Crimes Act and
violations of the Geneva Conventions. If such documents or agreements
exist, they will be the most useful materials in deciding whether any
legislation in this area is necessary or appropriate.
Mr. Schlueter. Although the Court in Hamdan indicated that Common
Article 3 is binding law, it is difficult to say how the Court would
interpret individual provisions in other cases. Nonetheless, it would
seem prudent to enact legislation to protect servicemembers, to guard
against an adverse future opinion from the Supreme Court.
Mr. Silliman. No. First of all, there is a memorandum of
understanding between the Departments of Justice and Defense whereby it
is agreed that American soldiers are to be tried in military courts
rather than Federal Court for any charges arising from their conduct in
the field which constitutes an alleged violation of both the U.S. Code
and the UCMJ. Any possible allegation of a violation of Common Article
3 would also surely constitute an allegation of misconduct under the
UCMJ. Also, testimony before this committee by the Judge Advocates
General (JAG) confirms that military personnel are trained to the
standards set forth in Common Article 3. Thus, I see no reasons why 18
U.S.C. 2441 needs to be amended.
geneva conventions
4. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, in
your opinion, do the 1949 Geneva Conventions represent the present
state of customary international law with respect to armed conflict?
Mr. Katyal. Yes. Both Congress and the Supreme Court, most recently
in Hamdi v. Rumsfeld, have recognized the Geneva Conventions as a
codification of the law of war. See 18 U.S.C. 2441(c)(1) (2003)
(defining violations of the law of war as breaches of the Hague or
Geneva Conventions); Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2641 (2004).
Congress also considers Common Article 3 an essential element of the
law of war, as reflected in the War Crimes Act.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. Yes, they do.
5. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, has
additional Protocol I of 1977, which the United States refused to
ratify, become part of customary international law?
Mr. Katyal. Yes. The United States Government has adhered to the
view that Protocol I constitutes customary international law. See,
e.g., Brief of Retired Generals and Admirals in Support of Petitioner,
Hamdan v. Rumsfeld, at 20. In Hamdan, the plurality stated that the
term ``regularly constituted court'' must be understood to incorporate
at a minimum the trial protections recognized by customary
international law as embodied in Article 75 of Protocol I. See 126
S.Ct. at 2797. Several court decisions have held that violations of
Protocol I are violations of Common Article 3. See Kadic v. Karadzic,
70 F.3d 232, 242-43 (2d Cir. 1995); Mehinovic v. Vuckovic, 198 F. Supp.
2d 1322, 1351 (N.D. Ga. 2002).
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. Many of the provisions of additional Protocol I are
acknowledged by the State Department as customary international law,
even though the United States has not ratified that Protocol. For
example, Article 75, which gives us a clarification of what the
``judicial guarantees'' are referred to in Common Article 3, is
customary international law.
classified information
6. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr.
Silliman, the present military commission rules allow the appointing
authority of the presiding officer of a commission to exclude the
accused and his civilian counsel from access to evidence during
proceeding that these officials decide to close to protect classified
information or for other named reasons. In your opinion, can a process
that passes constitutional and statutory muster be constructed without
giving the accused and counsel possessing the necessary clearances
access to such material in some form?
Mr. Fidell. NIMJ does not believe any person can properly be
convicted of a criminal offense based on evidence that is not made
available to the accused and his or her attorney. The current
arrangement for classified information in courts-martial--Military Rule
of Evidence 505--has been put to the test in numerous cases over the
years. That procedure--under which the ``members'' of the court-martial
never have access to information to which the accused is not also
privy--is workable. There is no basis for applying a different approach
in military commissions.
Mr. Katyal. The court-martial process provides a clear model of how
such a system would--and does--operate. If the accused at any stage of
a military trial seeks classified information, the government may ask
for an in camera (closed) proceeding to discuss the use of the
information in trial. Mil. R. Evid. 505(i). During this session, the
military judge hears arguments from both sides on whether disclosure
``reasonably could be expected'' to harm national security prior to the
accused or his lawyer being made privy to the classified information.
Only ``relevant and necessary'' classified information to the
prosecution's or accused's case can be made available. Mil. Rule Evid.
505(i).
Moreover, the military rules of evidence provide alternatives to
disclosure of classified information, which include: redaction of the
classified information; substitution of an unclassified description or
summary of the classified information; substitution of a statement
admitting the relevant facts the classified information would tend to
prove; or full withholding of disclosure. Mil. R. Evid. 505(d),(g).
Courts-martial also grant broad privileges for withholding information
when it is ``detrimental to the public interest.'' Mil. R. Evid.
506(a). My testimony addresses these and similar issues at great
length, see pp. 7-11.
The one thing that Federal courts have not accepted, as Senator
Lindsey Graham has recently stated, is the exclusion of the defendant
from his own criminal trial when he is not being disruptive. I was only
able to find one example in American history when a defendant was
excluded from a military commission in 1865, and that conviction was
reversed by the JAG.
Mr. Schlueter. Yes, I am confident that we can construct a
procedure for balancing the need for national security and access by
counsel and the accused and at the same time pass constitutional
muster. It is important to note that the Court in constructing a
majority vote in Hamdan, did not specifically rule that the accused's
lack of access to classified information was in itself
unconstitutional. It simply held that procedure, and others, appeared
to be inconsistent with the UCMJ and the Manual for Courts-Martial, and
that the President had not sufficiently explained the need for such
variations.
Mr. Silliman. Provision could be made for protecting highly
classified national security information by preventing an accused from
having direct access to it, as long as he is afforded access to
unclassified summaries of that information if it is to be used against
him. His military defense counsel, however, assuming he had the
requisite security clearance, could not be denied access to the
classified information itself. The Manual for Courts-Martial, in
Military Rules of Evidence (MREs) 505 and 506, has provisions that
mirror the Classified Information Procedures Act with regard to the use
of classified information in a criminal trial, although these
provisions normally apply to an accused's request to introduce
classified information in his defense.
common article 3
7. Senator Warner. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in your opinion, does the statuary prohibition on cruel, inhumane, and
degrading treatment or punishment enacted last year constitute
sufficient legal guidance to ensure compliance with Common Article 3?
Ms. Massimino. No. The statutory prohibition on cruel, inhuman, or
degrading treatment contained in the DTA was a necessary corrective to
administration policies holding that: (1) the Geneva Conventions do not
govern U.S. conduct in the current conflict; (2) interrogation
techniques in violation of that standard and outside of the Army Field
Manual on Intelligence Interrogations are authorized; and (3) the
treaty obligation to refrain from cruel, inhuman, or degrading
treatment does not bind the United States when it acted against aliens
outside its territory. The DTA provides important legal guidance by
requiring that all U.S. personnel--military and civilian--comply with
the prohibition on cruel, inhuman, or degrading treatment, regardless
of the location or legal status of those in their custody.
The DTA does not, however, purport to address the full range of
requirements set out in Common Article 3 of the Geneva Conventions.
Common Article 3 prohibits cruel treatment and torture, as well as
``outrages upon personal dignity, in particular humiliating and
degrading treatment.'' While the administration now argues that the
requirements of Common Article 3 are vague, that has not been the
position of the United States military, now or in the past. To the
contrary, the military has recognized and implemented its obligation to
comply with Common Article 3 for more than 50 years. After the Supreme
Court ruled in the Hamdan v. Rumsfeld case that the United States was
bound by the requirements of Common Article 3 in the current conflict,
Deputy Secretary of Defense Gordon England issued a directive restating
the obligation to comply with Common Article 3 and finding that DOD
policies and doctrine are all already in compliance with Common Article
3. No further legal guidance is necessary in order to ensure compliance
with Common Article 3.
Ms. Newell Bierman. The DTA provided important legal guidance,
reaffirming the U.S.'s commitment to humane treatment and making clear
that the prohibition on cruel, inhuman, and degrading treatment governs
all U.S. officials and agents, including CIA and civilian contractors.
The U.S. military has considered itself bound by the principles of
Common Article 3 in every conflict since the Geneva Conventions were
ratified in 1949. The Department of Defense (DOD) Directive issued on
July 7, 2006, by Gordon England restates DOD's obligation to comply
with Common Article 3 and makes clear that DOD policies, directives,
executive orders, and doctrine all already comply with the standards of
Common Article 3. As Major General Scott C. Black, JAG of the Army,
told the Senate Armed Service Committee the following week: ``[W]e've
been training to [Common Article 3] and living to that standard since
the beginning of our Army. We continue to do so.'' (7/13/06, SASC). The
ranking JAGs of each of the other Armed Services agreed.
The U.S. military has never asked for guidance or complained about
the vagueness of the humane treatment principles embodied in Common
Article 3 in any of the conflicts it has fought over the past 50 years.
The lack of clarity in the current conflict came about because the
administration suggested that the Geneva Conventions, including Common
Article 3, did not apply. Reaffirming a standard the military knows
well--the humane treatment standards of Common Article 3--would restore
the clarity that has been lost. Congress should also exercise oversight
to ensure that abuses like those that occurred at Abu Ghraib do not
happen again, ensure that all those responsible for promoting abusive
practices are held fully accountable, and require that the humane
treatment requirements embodied in Common Article 3 and the DTA are
fully respected and applied by every U.S. agency in every operation
around the world.
Mr. Fidell. The statutory prohibition on cruel, inhuman, and
degrading treatment does not purport to address all of the requirements
set forth in Common Article 3. Common Article 3 is no more vague than a
number of punitive articles of the UCMJ that have been part of military
law for decades and are generally recognized as providing fair notice
of what conduct is proscribed. Examples include Article 88
(contemptuous words), 89 (disrespect), 91 (contemptuous or
disrespectful language or deportment), 92(3) (dereliction of duty,
including duty imposed by custom of the service), 93 (cruelty,
oppression, or maltreatment), 133 (conduct unbecoming an officer and a
gentleman), and 134 (conduct that is prejudicial to good order and
discipline or service-discrediting). Additional guidance can be
provided in the Manual for Courts-Martial, but if that is done, it
should be made clear that no inference arises that the law was too
unclear to permit prosecution for misconduct (violations of Common
Article 3) that occurred before the additional guidance was
promulgated. It should be noted that United States practice is not to
charge war crimes as offenses under the law of war, but rather as
violations of the pertinent substantive punitive article, such as
Article 118, which forbids murder.
Mr. Mernin. No. The statutory prohibition on cruel, inhuman, and
degrading treatment or punishment enacted last year, in its
definitional section, articulates a more restricted definition of what
treatment is prohibited than does Common Article 3. The baseline
treatment standards of Common Article 3 have been incorporated in the
training of U.S. Armed Forces for decades as a requirement of
international law and the law of armed conflict, as a useful tool to
inhibit sliding down a slippery slope of maltreatment, and as
consistent with core military concepts of honor and reciprocity. While
the New York City Bar Association (the ``Association'') praised, and
continues to applaud, last year's statutory prohibitions set forth in
the DTA, the act did not purport to incorporate or subsume the
standards of Common Article 3. Moreover, the act's lack of an
enforcement mechanism weakens its ability to contribute to or ensure
compliance with Common Article 3. Finally, the Presidential signing
statement which accompanied the act's becoming law, and reserved the
right not to comply with the act in certain circumstances, also may
undercut its effectiveness as ``sufficient legal guidance.''
Dr. Carafano. Statutes by themselves rarely provide sufficient
legal guidance. The President and military commanders need to be
responsible for establishing doctrine, military regulations, and
enforcement of expected behavior and treaty compliance.
Mr. Katyal. Standing alone, the prohibition enacted by Congress
last year, the ``McCain amendment,'' does not provide sufficient legal
guidance. It has at its core a subjective test--the ``shocks the
conscience'' standard for constitutional due process--that is vague and
highly case specific. What gives that law practical content is the
principle that its text must be read and enforced in a manner
consistent with our international obligations, as Acting Assistant
Attorney General Stephen Bradbury acknowledged in his testimony. See
http://judiciary.senate.gov/testimony.cfm?id=757&wit--id=5505. Its
provisions must prohibit, therefore, all conduct that would be
prohibited under Common Article 3. While soldiers and military officers
are quite familiar with these international standards, the
administration, for its part, has protested that they are unclear and
appears to have pursued policies that violate the Geneva Conventions,
even if they do not directly violate the McCain amendment's narrower
prohibition. In this sense, then, the McCain amendment has not provided
clear legal guidance on compliance with Common Article 3. Now that the
Hamdan decision has clarified that Common Article 3 applies to all
conflicts, government actors cannot hide behind the literal language of
the McCain amendment to immunize actions that violate the treaty. The
military has developed its own system of guidelines and procedures
evincing a comprehension and acceptance of the Geneva Conventions. In
fact, each JAG testified before this committee that our troops train to
these standards and that the Hamdan decision imposes no new
requirements upon them. There is no reason to think that, now aware
that the article applies, other government actors could not do the
same.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. The prohibitions contained in the DTA are virtually
identical to those in Common Article 3, except that where the statute
refers to ``degrading treatment,'' the Convention's provision uses the
enlarged phrase ``humiliating and degrading treatment.'' Both are
similar in connotation and, if there is a difference, it is slight.
Therefore, I think the statutory prohibition does generally provide
sufficient legal guidance for our Armed Forces personnel. Remember that
the JAGs, in their testimony before you, acknowledged that Common
Article 3 is the standard to which we normally train our Service
personnel. Thus, Army Field Manuals, such as the one on accepted
interrogation techniques, give clarity to what is, and what is not,
permissible without being ``cruel, inhuman, or degrading treatment or
punishment'' and, by extension, ``humiliating'' treatment as well.
8. Senator Warner. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
would compliance with that statute constitute compliance with Common
Article 3?
Ms. Massimino. No. As noted in response to question 7, Common
Article 3 encompasses a broader range of requirements than does the
DTA. But even with respect to the common obligation to refrain from
cruel treatment, the administration's interpretation of the DTA
standard is such that the two standards cannot be equated. Common
Article 3 has always been interpreted by the United States as imposing
an absolute prohibition on inhumane treatment. Under the Common Article
3 standard, interrogation techniques such as prolonged stress
positions, waterboarding, heat injury or hypothermia, the use of dogs
to terrify, and other such conduct would clearly be prohibited,
regardless of the facts or circumstances surrounding the particular
interrogation.
In contrast, and despite the fact that Supreme Court jurisprudence
holds that certain acts are inherently cruel, the administration has
interpreted the DTA ``shocks the conscience'' standard as infinitely
elastic. Under the administration's interpretation of this standard,
conduct is permissible depending on the rationale for employing it.
Thus, no technique would be absolutely prohibited if interrogators
believed the information they sought was valuable enough to justify the
abuse.
For this reason, compliance with the DTA--which the administration
has interpreted as a relative standard--would not constitute compliance
with the absolute requirements of Common Article 3.
Ms. Newell Bierman. Unfortunately, no--not if that statute is given
the interpretation put forth by the Bush administration, in various
legal opinions. Common Article 3 has always been interpreted as
imposing an absolute prohibition on all inhumane conduct, drawing a
clear line between prohibited and permissible conduct. We believe that
this is precisely what Congress intended to do when it passed the DTA--
to forbid absolutely the kinds of abusive interrogation techniques we
saw in Abu Ghraib.
The Bush administration, however, has interpreted the DTA as
imposing a relative standard, creating a sliding scale of prohibited
treatment. Applying a ``shocks the conscience'' test, the
administration claims that what ``shocks the conscience'' depends on
the need. This means conduct that would--and should--be prohibited
under an absolute bar on inhumane treatment, including techniques such
as waterboarding, use of snarling dogs, and exposure to extreme hot and
cold, might be allowed in certain situations if the interrogator or
other official could explain a sufficiently important need. This
appears to be the reason why the administration is asking Congress to
interpret Common Article 3 by reference to the DTA.
Given the administration's interpretation of the DTA, if Congress
were to agree to this proposal, it would be seen around the world as
the U.S. taking a ``reservation'' to the Geneva Conventions--attempting
to unilaterally redefine its terms and limit its protections. No
country in the world has ever before formally renounced its humane
treatment requirements under Common Article 3 or suggested that the
absolute prohibition on inhumane treatment should be replaced with a
sliding scale. Such a step would send a message that America's enemies
would all-too willingly amplify and mimic: that the United States
affirmatively seeks to limit the scope of the humane treatment
requirements.
Mr. Fidell. No. As noted in response to question 7, the McCain
amendment does not purport to address all of the requirements of Common
Article 3.
Mr. Mernin. No. As set forth above, the statute is by its terms not
referable to Common Article 3. A number of commentators have offered
examples of the potential different treatment standards reflected in
the two sources. Before a statutory departure from Common Article 3 is
undertaken, it should first take into account the opinion of the JAG
testimony concerning the U.S. Armed Forces' teaching, training, and
application of the Geneva Conventions, including Article 3.
Dr. Carafano. Most likely, unless the statute or Common Article 3
are misconstrued as they were in the Hamdan decision.
Mr. Katyal. No. The McCain amendment's literal prohibition is
significantly narrower than that of Common Article 3. The standard it
applies is that of the Federal constitution's ban on cruel and unusual
punishment. The test is whether the conduct ``shocks the conscience.''
As this standard has been applied, the reasons for the conduct are
relevant to the determination of its legality. A finding of some
particularly heightened security need, for example, could justify
otherwise ``conscience-shocking'' treatment of prisoners.
By contrast, Common Article 3 also prohibits conduct constituting
``outrages upon personal dignity, in particular humiliating and
degrading treatment.'' It does not require any physical harm and does
not balance the severity of the conduct against its rationale.
It's easy to see where these two standards would diverge. Imagine
the CIA has been ``water-boarding'' a suspected al Qaeda operative.
Under the McCain amendment's standard, such a practice may well be
legal. It might be justified by the exigency of the situation, by the
rank of the prisoner, or by his access to information. Moreover, this
conduct may not count as ``torture'' under other domestic statutes if
it does not cause prolonged physical suffering. Under Common Article 3,
however, such a practice may well qualify as the kind of ``outrage on
personal dignity'' that is prohibited in all situations.
Compliance with the McCain amendment will only constitute
compliance with Common Article 3 if the constitutional standard is
understood to be identical to that of the treaty.
To the extent any legislation that abrogates our Geneva Convention
obligations is being contemplated, it deserves the most careful and
informed attention by Congress, following the submission of enough
intelligence information to make sure that such a step is absolutely
necessary. It must take place only after a sober and careful analysis,
and not be the product of a rush to legislate.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. Yes, with regard to treatment of detainees, because I
see little difference in scope of coverage between ``cruel treatment''
and ``humiliating and degrading treatment'', as used in Common Article
3; and ``cruel, inhuman, or degrading treatment or punishment'' in the
DTA.
______
Questions Submitted by Senator John McCain
common article 3
9. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
the Supreme Court found that Geneva Common Article 3, which bars cruel
and humiliating treatment, including outrages upon personal dignity,
applies to al Qaeda. In response, some have argued that the terms
included in Common Article 3 are vague and undefined in law of war
doctrine. In Tuesday's Senate Judiciary Committee hearing, for example,
the head of the DOJ's Office of Legal Counsel said that some of the
terms are ``inherently vague.'' Is this your understanding?
Ms. Massimino. No. The terms in Common Article 3 are not inherently
or otherwise vague. If the DOJ's Office of Legal Counsel finds the
terms of Common Article 3 to be vague, perhaps they should talk to the
military, to whom the meaning and requirements of Common Article 3 are
clear. As the senior serving JAGs recently testified, our Armed Forces
have trained to Common Article 3 and can live within its requirements
while effectively defending our Nation. The military has more than 50
years of experience training to and applying this standard. They have
not complained of its vagueness; rather, they have always argued for
the broadest interpretation of the standard, recognizing the importance
to the safety of our own troops of preserving the integrity of Common
Article 3. Moreover, as evidenced by Secretary England's July 6, 2006,
directive, the DOD's understanding of Common Article 3 was not changed
by the recent Hamdan decision.
Ms. Newell Bierman. As stated in the answer to question 7, the
military has long understood, trained to, and applied the humane
treatment requirements of Common Article 3, without ever raising
concerns about its vagueness. The DOD Directive issued on July 7, 2006,
by Gordon England restates DOD's obligation to comply with Common
Article 3 and affirms that DOD policies, directives, executive orders,
and doctrine all already comply with the standards of Common Article 3.
The provisions of the Third and Fourth Geneva Conventions--including
Common Article 3--are incorporated as required conduct for the armed
services in Army Regulation 190-8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees and other Detainees, and similar
regulations for other Services. As Major General Scott C. Black, JAG of
the Army, told the Senate Armed Service Committee the following week:
``[W]e've been training to [Common Article 3] and living to that
standard since the beginning of our Army. We continue to do so.'' (7/
13/06, SASC). The ranking JAGs of each of the other armed services
agreed. As these military leaders make clear, the standards of Common
Article 3 have long been deemed sufficiently clear for the military to
mandate, teach, and apply. No more vague than other guiding principles,
the standards of Common Article 3 have been given concrete meaning
through usage over time.
Mr. Fidell. No. As indicated in response to question 7, some of the
prohibitions of Common Article 3 are no more vague than a variety of
existing punitive articles in the UCMJ that have withstood judicial
scrutiny for many years.
Mr. Mernin. No. Common Article 3 has provided a useful framework
for decades, and should not be discarded based upon a facile claim of
vagueness. The cited testimony focused on the ban of ``outrages upon
personal dignity, in particular humiliating and degrading treatment''
as inherently vague. The Association respectfully disagrees. Common
Article 3 has been interpreted and followed by our Armed Forces for
decades and to discard this well-regarded, clear legal standard--for
the sake of expediency in establishing rules which will only apply to a
handful of detainees--would be a grave mistake. By its terms, the
subject provision accommodates the notion that there might be instances
of ``humiliating and degrading treatment'' which do not rise to the
level of ``outrages upon personal dignity.'' As an example, one can
posit an instance of verbal ridicule that would constitute an instance
of ``humiliating and degrading treatment.'' However, such an isolated
event would not rise to the level of ``outrages upon personal
dignity.'' Requiring a modicum of interpretation does not make a
standard inherently vague.
Mr. Carafano. Yes. For example, the phrase contained in Common
Article 3 that treatment of detailees should prohibit ``the passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples''
is vague. To comply with this section, it will require some due
process, but what that due process should look like is hardly agreed
upon by all ``civilized peoples,'' nor is it even agreed upon who
constitutes the body of civilized peoples. Nine justices of our Supreme
Court also disagreed sharply on what a ``regularly'' constituted court
was. Some ambiguity was intended by the drafters, which is one reason
Congress attempted to remove jurisdiction from the Federal courts,
which tend to establish fixed meanings that are too inflexible.
Mr. Katyal. The ``vagueness'' of Common Article 3 has never, until
now, impeded American military operations. It has never even been
raised as an issue, even though American interrogators and soldiers
have been subject to its requirements under the War Crimes Act since
that law was passed almost 9 years ago. For decades the military has
trained its soldiers to comply with a standard that goes well beyond
what the Geneva Conventions, including Common Article 3, require.
Further, the Government has itself asserted that the DOD has heretofore
been in full compliance with the Geneva Conventions in its conduct of
the global war on terror. By the administration's own admission, the
military has always known how to comply--rendering their claim of
vagueness nonsensical.
In reality, the vagueness argument is simply another step in an
elaborate dance to protect non-complying parties from prosecution. If
the United States wants to insulate such conduct, we should do so only
after carefully assessing the costs to the international reputation of
the United States and the impact of such a decision on our troops.
Please also see my answer to question 8, above.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. First of all, I do not read the Supreme Court's
opinion in Hamdan v. Rumsfeld as ruling that our treatment of al Qaeda
detainees, apart from our use of military commissions to prosecute
them, must comply with Common Article 3. That was a clear implication
flowing from the ruling, but the Court did not make that holding. That
is an issue for another day. In that regard, I believe the memorandum
issued by the Deputy Secretary of Defense on July 7 regarding to
application of Common Article 3 to those being held by DOD personnel is
a good policy decision, but not one specifically mandated by the
Court's ruling in Hamdan.
Having said that, let me now address the substance of your
question. I disagree with Mr. Bradbury's testimony in the Senate
Judiciary Committee that the terms of Common Article 3 are ``inherently
vague.'' As I said in response to a question from the Chairman, it has
been acknowledged by the JAG that we train our Armed Forces to the
Common Article 3 standard, and in our training manuals and other
materials we distribute to our Service personnel, we give definition
and clarity to the terms used in the article.
10. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
is there a body of opinion that defines Common Article 3?
Ms. Massimino. Yes. The provisions in Common Article 3 are defined
by U.S. case law in relation to the Alien Tort Statute and the Torture
Victims Protection Act, such as Kadic v. Karadzic, 70 F.3d. 232 (2d
Cir. 1995). Common Article 3 is also defined by international
commentaries, such as the International Committee of the Red Cross
(ICRC), and a well-developed body of international case law from
international tribunals to which administration witnesses have referred
to as a source for guidance on procedure and rules. As I noted in my
testimony, the International Criminal Tribunal for the Former
Yugoslavia (ICTY), for example, has said that ``cruel treatment
constitutes an intentional act or omission, that is, an act which,
judged objectively, is deliberate and not accidental, which causes
serious mental or physical suffering or injury or constitutes a serious
attack on human dignity.'' Prosecutor v. Delalic, Case No. IT-96-21-T
(Nov. 16, 1998) at para. 552. The ICTY similarly held that an outrage
upon personal dignity is an act that causes ``serious humiliation or
degradation to the victim,'' and requires humiliation to be ``so
intense that the reasonable person would be outraged.'' Prosecutor v.
Aleksovski, Case No. IT-95-14/1-T (June 25, 1999) at para. 56.
According to that international tribunal, a perpetrator must have acted
(or failed to act) deliberately and must have been able to perceive his
suffering to be the ``foreseeable and reasonable consequences of his
actions.'' Id. These formulations are very similar to the way in which
offenses are defined under U.S. criminal law.
Ms. Newell Bierman. Yes. There is a well-defined body of law, based
on U.S. legal opinions, ICRC commentary and jurisprudence from
international criminal tribunals that defines the nature and scope of
the obligations under Common Article 3. U.S. courts have interpreted
Common Article 3 in the context of civil litigation brought against
human rights abusers under the Alien Tort Claims Act. In Kadic v.
Karadic, 70 3d 232 (2d Cir. 1995), for example, the Second Circuit
applied the law of Common Article 3 to conclude that the ``offenses
alleged by the appellants''--rape, torture, summary execution--``would
violate the most fundamental norms of the law of war embodied in Common
Article 3.'' Id. at 243. International criminal tribunals, and
commentators, particularly the ICRC have also defined the scope of
Common Article 3. The ICRC commentaries have defined the humane
treatment standards of Common Article 3 as ``concern[ing] acts which
world public opinion finds particularly revolting--acts which were
committed frequently during World War II.'' The case law of the ICTY
and the International Criminal Tribunal for Rwanda (ICTR) also provides
useful guidance on the definition of a Common Article 3 crime. In
examining offenses of either cruel treatment or outrages upon personal
dignity, the tribunals have made clear that the humiliation suffered
must be real and serious and must be so intense that the reasonable
person would be outraged and have consistently limited individual
criminal liability to serious violations of the humane treatment
standards of Common Article 3. The statute for the International
Criminal Court (ICC) in Article 82(c) defines war crimes as serious
violations of Common Article 3, and the ICTY has said that serious
violations of Common Article 3 are prosecutable as war crimes. Kunarac
(Appeals Chamber), June 12, 2002, para. 68. The Court has also
repeatedly set the standard that for a breach of IHL to be a war crime
the ``violation must be serious . . . it must constitute a breach of a
rule protecting important values, and the breach must involve grave
consequences for the victim.'' Tadic, (Appeals Chamber), Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2,
1995.
Mr. Fidell. There is a substantial literature on Common Article 3,
including instructional materials generated by the Armed Forces. In
1960 the ICRC published a definitive commentary on all of the Geneva
Conventions, commonly known as ``Pictet,'' after its overall editor,
Jean S. Pictet.
Mr. Mernin. Yes. The authoritative ICRC Commentary, edited by Jean
S. Pictet, was published in 1958. In addition, a number of U.S. courts
(see, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), courts of
other nations, and international criminal tribunals have rendered
decisions concerning or applying Common Article 3. An accessible
standard of what constitutes a violation of the article has developed
in this body of case law.
Dr. Carafano. Not in any final way, nor should there be. In
international relations, sovereign states must take responsibility for
their own treaty interpretations.
Mr. Katyal. The requirements and purposes of Common Article 3 have
been taken up by U.S. domestic courts in the context of civil
litigation under the Alien Tort Statute and the Torture Victims
Protection Act, international criminal tribunals, and commentators,
particularly the ICRC. Most notably, the Second Circuit Court of
Appeals applied the law of Common Article 3 in Kadic v. Karadzic, 70
F.3d.232 (2d Cir. 1995). The UCMJ, and interpretations of it, are also
relevant to defining Common Article 3 because, as Hamdan reaffirms, the
UCMJ codifies the laws of war. Moreover, the military's long tradition
of training soldiers in the proper treatment of prisoners of war, and
its longstanding regulations, should also be treated as a relevant
source of interpretive guidance.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. There is a body of opinion comprised of customary
international law, treatises, other scholarly writings, and even
military training manuals from the United States and other countries
which clarifies what is required to fulfill the requirements of Common
Article 3.
11. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
does the vagueness of these terms require a change in America's
relationship to the Geneva Conventions?
Ms. Massimino. No. Our relationship to the Geneva Conventions need
not and should not change. The U.S. military has abided by the Geneva
Conventions since they were ratified in 1949 and has consistently--
until now--maintained that the standards of conduct required by the
Conventions are clear. It would not be in the U.S. national interest to
deviate from this position now. The United States has greater exposure
militarily than any other nation, and thus has the greatest stake in
reinforcing the reciprocal nature of the Geneva Conventions. Moreover,
a change in America's relationship to the Geneva Conventions would be
perceived around the world not only as a breach of our treaty
obligations, but as a lack of support for human rights and the rule of
law.
Ms. Newell Bierman. Absolutely not. The U.S. has endorsed, upheld,
and promoted the humane treatment standards embodied in Geneva since it
was ratified in 1949. As explained in the answers to questions 7 and 9,
the U.S. military has long trained to and sought to apply these
standards without any complaints about vagueness. Any attempt to
redefine the United States' relationship with Geneva will undoubtedly
be seen as the U.S. attempting to unilaterally redefine its terms and
limit its protections. No country in the world has ever before formally
renounced or sought to define away its humane treatment and fair trial
obligations under Common Article 3. Such a step would send a message
that America's enemies would all-too willingly amplify and mimic: that
the United States affirmatively seeks to limit the scope of the humane
treatment requirements. Carving out exceptions now would set a
dangerous precedent, undermining humane treatment standards that
protect U.S. soldiers if captured by the enemy in future conflicts.
Put another way, the costs of any change would be great and the
benefits few to none. When Senator Graham asked the ranking JAGs of
each of the armed services at the July 13 hearing before this
committee, ``Can we win the war and still live within Common Article
3?,'' all answered with an unequivocal ``yes.'' Former JAG of the Navy,
Rear Admiral John Hutson added: ``In fact, I'd turn it around. I don't
think we can win the war unless we live within Common Article 3.'' (7/
13, SASC Hearing).
Mr. Fidell. No. The Geneva Conventions were negotiated over 50
years ago and the War Crimes Act, which refers to Common Article 3, 18
U.S.C. 2441(c)(3), was enacted 10 years ago. It's a little late to
claim that Common Article 3 is too vague.
Mr. Mernin. No. As set forth above, the Association disagrees with
the premise that the referenced terms are vague. The treatment
standards of Common Article 3 have formed an integral part of our
Nation's Armed Forces' overall training and application with respect to
detention and interrogation for decades. To whittle away at these
respected and tested norms, for the sake of expediency, would send the
wrong message to our troops, our enemies, our allies, and to the world.
Dr. Carafano. No. The parties to the Convention intended some
ambiguities and papered over others. That is true of most treaties, and
we do not ``change our relationship'' to them.
Mr. Katyal. Not in the least. American officials and soldiers have
long demonstrated both the capacity and the willingness to abide by the
Geneva Conventions, without complaint of vagueness or insufficient
guidance. Further, the military is not arguing that deviations from the
Geneva Conventions are required in order to successfully prosecute the
war on terror. Disrupting the existing balance of domestic statutes,
international law and judicial glosses on these sources of law in any
way that reduces or eliminates our obligations under the treaty would
be a violation of international law to a degree unprecedented in
America's history. The government would forfeit America's status as the
world's leading proponent of human rights. By even contemplating such a
dramatic--and unnecessary--change, the government is in uncharted
territory.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. Because I do not agree that the terms are
``inherently vague,'' I see no need to modify our longstanding
acceptance to be bound by the provisions of the Geneva Conventions.
12. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
some have suggested that we put in statute that the prohibitions
contained in Common Article 3 are identical to the prohibition against
cruel, inhumane, and degrading treatment contained in last year's DTA.
In that bill, we defined cruel, inhumane, and degrading treatment with
reference to the 5th, 8th, and 14th amendments to the U.S.
Constitution. Is this a good idea?
Ms. Massimino. No. See responses to questions 7 and 8. Because of
the way the administration has interpreted the DTA standard, were
Congress to put in statute that the prohibitions contained in Common
Article 3 are identical to the DTA, the result would be a weakening of
the Common Article 3 standard. Common Article 3 has always been
interpreted by the United States as imposing an absolute prohibition on
inhumane treatment of prisoners. Thus, under the Common Article 3
standard, subjecting prisoners to interrogation techniques such as
prolonged stress positions, waterboarding, heat injury or hypothermia,
and other such conduct would clearly be prohibited, regardless of the
facts or circumstances surrounding the particular interrogation. The
United States has in the past prosecuted foreign enemies for subjecting
our personnel to such acts.
In contrast, the administration has interpreted the DTA ``shocks
the conscience'' standard to be ``flexible,'' so that abusive conduct
may be permissible depending on the rationale for employing it. In Vice
President Cheney's words, what shocks the conscience is ``really in the
eye of the beholder.'' For this reason, legislating that compliance
with the DTA constitutes compliance with the requirements of Common
Article 3 would result in replacing an absolute standard with a
relative one, thereby weakening the Geneva Conventions standard.
Ms. Newell Bierman. Absolutely not. As explained in the answer to
question 8, Common Article 3 has always been interpreted as imposing an
absolute prohibition on all inhumane conduct, drawing a clear line
between prohibited and permissible conduct. The DTA, in comparison, has
been interpreted by this administration as imposing a relative
standard, a sliding scale of prohibited treatment. Applying a ``shocks
the conscience'' test, the administration claims that what ``shocks the
conscience'' depends on the need.
Some have suggested that defining the humane treatment standards of
Common Article 3 in accordance with the DTA would add ``clarity'' to
uncertain language in Common Article 3. But what is ``cruel, inhuman,
and degrading'' is not inherently more ``clear'' than what is
``humiliating and degrading.'' In contrast, an absolute standard--which
establishes definitive boundaries between prohibited and approved
conduct--is certainly clearer and easier to teach and train to than a
standard which varies according to the circumstances. In fact, as both
Gordon England's July 7 memo--and the statements of the JAGs have made
clear--the military has long been teaching and training to the Common
Article 3 standards. The military has never concluded that the standard
was too unclear to teach, train to, and apply.
Mr. Fidell. Reference to the 5th, 8th, and 14th Amendments was
understandable in light of the United States position on the Convention
Against Torture, but was not necessarily a good idea since the Geneva
Conventions ought to have a common meaning among nations, rather than
one that varies from country to country.
Mr. Mernin. No. The prohibitions are not identical, and the United
States should not by such legislation water down or turn its back on
its treaty obligations, nor by doing so encourage or credit another
nation's unilateral effort to rewrite the meaning of Common Article 3's
baseline safeguards. Nations need to be able to depend upon the uniform
application of treaty provisions, or the provisions will over time lose
their force.
Dr. Carafano. Yes, it is better than most other alternatives, but
only insofar as the reference to these constitutional amendments
pertains to the definition of cruel, inhumane, and degrading treatment,
and not to establishment of any sort of constitutional rights for
detainees.
Mr. Katyal. As I discussed above, the standard courts apply under
those amendments is whether the conduct in question ``shocks the
conscience.'' This constitutional test, while certainly more familiar
to the courts than any new statutory language would have been, may not
transfer so cleanly into the context of an international, largely
secretive operation against high-level terrorists. First, the test is
subjective--the reasons motivating the conduct are relevant to
determining whether the conduct is constitutional. For example,
punishment grossly disproportionate to the cause of deterring or
punishing crime would violate the law. However, where the prisoner is a
high-level member of al Qaeda, or has access to information, the
``shocks the conscience'' standard may well permit conduct that is
categorically prohibited by Common Article 3. There is simply no
precedent for evaluating our constitutional standard under these
circumstances. Second, because it is so subjective and case-specific,
the standard in the DTA will put courts in a position of making policy
judgments about acts conducted on the ground by military and
intelligence personnel. While the flexibility of the DTA standard gives
power to the courts to use their discretion, the balancing they will be
forced to do makes them more likely to abstain from judgment and allow
violations of our international obligations to continue.
Third, because the executive has asserted that those detained
abroad have no constitutional rights, including under the 5th, 8th, and
14th amendments, it is not clear that the language of the act protects
detainees held outside of the United States at all.
Mr. Schlueter. Yes, I believe that using the Constitutional
standards, as interpreted by the United States courts is a prudent
course.
Mr. Silliman. The definition of ``cruel, inhuman, or degrading
treatment or punishment'' in the DTA is obviously modeled after the
Senate's definition in its formal ``understanding'' of the phrase
``cruel, inhuman, or degrading treatment of punishment'' as used in
Article 16 of the 1984 Convention Against Torture. Even though Common
Article 3 has a difference in wording (using the phrase ``humiliating
and degrading treatment'' rather than simply ``degrading treatment'' as
in the statute), because the difference in connotation is slight, I do
not believe that reference to 5th, 8th, or 14th amendment standards
would necessarily be inappropriate.
13. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
what are the implications of our redefining Common Article 3 in this
way?
Ms. Massimino. See response to question 12. The implications of our
redefining Common Article 3 by equating it with the DTA standard would
be serious. First, it could result in implicitly authorizing for U.S.
personnel acts which the rest of the world rightly views and would
treat as war crimes. Second, it risks undermining the core Geneva
Conventions standard of humane treatment on which our own personnel
rely.
Forty-nine retired military leaders recently wrote a letter to this
committee about the prospect of the United States redefining Common
Article 3 in this way. In their view, ``were we to take this step, we
would be viewed by the rest of the world as having formally renounced
the clear strictures of the Geneva Conventions. Our enemies would be
encouraged to interpret the Conventions in their own way as well,
placing our troops in jeopardy in future conflicts. American moral
authority in the war would be further damaged.''
Ms. Newell Bierman. See answers to questions 8 and 11.
Mr. Fidell. Adoption of a narrow reading of Common Article 3 has at
least four intolerable consequences. First, it destroys any chance for
a common, universal understanding of the meaning of these treaties.
Second, to the extent that the definition does not address parts of
Common Article 3, it leaves those provisions in limbo as a matter of
United States law. Third, it potentially could serve as the basis for
undeserved immunity on the part of United States military and civilian
personnel who have previously violated Common Article 3. Finally, it
would deprive our country of the right to object to abusive treatment
of our personnel who fall into others' hands.
Mr. Mernin. As alluded to in response to question 12, such a
redefinition would open the door for our enemies to mistreat American
captives yet still claim, behind a curtain of deceptive logic, that
their actions were consistent with their interpretation of Common
Article 3. Moreover, JAG testimony to this Committee and the Judiciary
Committee has made clear that there is neither a need, nor desire
within the armed services, to depart from the Common Article 3
standards which have been taught, trained to, and applied for decades.
Dr. Carafano. If Congress chose to do so, the Court ought to uphold
its action. The only consequence might be that our treaty partners
argue we are not in compliance with our treaty obligations.
Mr. Katyal. First, it would immediately stop some extreme
procedures--such as waterboarding. Even the CIA's Inspector General has
evidently conceded that such procedures shock the conscience.
Distressingly, however, several large loopholes will persist under
the DTA's standard. To the extent that the ``shocks the conscience''
test would still permit conduct that Common Article 3 would prohibit,
such as the elimination of fair trial rights, the statute would violate
the Geneva Conventions.
Mr. Schlueter. I do not have sufficient experience or knowledge in
this area--international law--to be able to give you an informed
answer.
Mr. Silliman. This would provide a statutory definition as to what
might constitute a violation of Common Article 3 for domestic purposes,
but it would not bind either an international tribunal or the courts of
other countries on how they might rule on what constitutes a violation
of that article of the Conventions.
how congress should proceed
14. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, and Mr. Schlueter, in Mr.
Silliman's prepared testimony, he stated his view that, as a matter of
domestic law, Congress could restrict the application of Common Article
3, but that doing so might not pass judicial muster and would invite
additional litigation and more years of legal uncertainty. Could you
explain to us why the Supreme Court might not uphold such legislation
as Professor Silliman suggests?
Ms. Massimino. Congress has the constitutional authority to pass a
law that is in conflict with a treaty ratified by the United States.
However, passage of a law restricting the application of Common Article
3 would be a serious breach of our international legal obligations and
would likely be viewed by all other nations as a material breach of the
Geneva Conventions as a whole. As such, the courts certainly could find
it highly suspect, and indeed might overturn the law, particularly if
there was any doubt about whether Congress intended to put the United
States in breach of its international legal obligations.
Ms. Newell Bierman. When the United States affirmed and ratified
the Geneva Conventions in 1949, it committed to applying the humane
treatment and fair justice requirements of Common Article 3. Common
Article 3 is part of customary international law. Kunarc (Appeals
Chamber) June 12, 2002, para. 68. The legislative authorization of
military commissions that fail to meet the fair justice requirements of
Common Article 3 would put the United States out of compliance with its
treaty obligations and would be illegal under a set of core customary
international law norms.
Mr. Fidell. We agree that Congress could restrict the application
of Common Article 3, but doing so would constitute a de facto
repudiation of the Geneva Conventions, which would be wrong and
seriously endanger United States personnel abroad. We defer to
Professor Silliman as to whether the Supreme Court would sustain
legislation that restricted the application of Common Article 3,
especially if Congress's intent to do so was unmistakable.
Mr. Mernin. With respect to whether the Supreme Court would sustain
such a legislative maneuver, the Court could well find that any
material departure from the Common Article 3 treatment standards
impermissibly violated the law of armed conflict. The Court stated:
``Common Article 3 then, is applicable here and, as indicated above,
requires that Hamdan be tried by a `regularly constituted court
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples'.'' Although legislation which
attempted to restrict the application of Common Article 3 would be
possible, any step which sought to roll back the explicit guarantees of
Geneva, on the heels of the Hamdan decision and in the context of the
message the DTA sought to convey, would constitute an ill-advised
effort to circumvent the U.S. military's experience-driven policy and
practice. In this and future conflicts, our troops are the ones most at
risk of capture, and our detainee policies have always been premised,
in significant part, on the encouragement of reciprocity in the
treatment of our captured troops. We should never take steps which
heighten the risk of maltreatment of our troops without any
demonstrable benefit.
Dr. Carafano. If Congress chose to do so, the Court ought to uphold
its action. The only consequence might be that our treaty partners
argue we are not in compliance with our treaty obligations.
Mr. Katyal. As a matter of domestic law alone, Congress has the
power to pass such a law--though at great political cost, with severe
legal consequences. Nevertheless, such legislation would violate
international law that binds the United States. Any limit on the
application of Common Article 3 would be a material breach of one of
the United States' most important and longstanding treaty obligations.
As I discussed in my testimony at page 16, Common Article 3 is
considered a ``Convention in miniature'' because of the fundamental
principles it embodies. Violating it would be considered a material
breach of the Geneva Conventions as a whole. Moreover, as I mentioned
above, the 1949 Geneva Conventions codify existing customary
international law. Any statute that permits the violation of Common
Article 3 would be illegal under this set of core international legal
norms.
Mr. Schlueter. The Supreme Court's general view is that in
interpreting treaties and Federal legislation, the last in time will
prevail--if there are any conflicts. Thus, if Congress were to enact
legislation covering some of the same topics already covered in Common
Article 3, Congress's last word on the topic would normally prevail. So
it does not strike me that such legislation would necessarily be
constitutionally suspect, or that even if it were, a majority of the
court would strike down the Federal legislation.
15. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, and Mr. Schlueter, could you also
give a more detailed explanation of how such legislation would create
more litigation and legal uncertainty?
Ms. Massimino. Legislation that purports to restrict or redefine
our obligations under Common Article 3 would certainly be challenged in
the courts. To the extent that Congress establishes military
commissions that infringe on the basic principles of fair justice
described by the Supreme Court in Hamdan or authorizes conduct that
would violate the Geneva Conventions, such challenges would have merit.
In addition to legal challenges, however, legislation limiting the
scope and meaning of Common Article 3 would create legal uncertainty,
undermining the Pentagon's new rules on detainee treatment (which are
grounded on the military's understanding of Common Article 3).
Ms. Newell Bierman. The President authorized the use of military
commissions in March 2002. For the past 4 years, the military
commissions--rather than accused terrorists--have been on trial, and
appropriately so. In Hamdan, the Supreme Court laid out basic
principles of fair justice, none of which are reflected in the military
commission rules: the tribunal must be fair and impartial; the accused
has the right to be present at trial and provided all of the evidence
presented to the factfinder; the accused cannot be convicted on the
basis of unreliable evidence that he has not been able to confront,
such as evidence obtained through torture; and the accused is entitled
to an independent appeal of any finding of guilt. If Congress were to
authorize commissions that violated these basic fair trial standards,
it would undoubtedly lead to another round of litigation, thus delaying
even longer the time when the United States holds accountable those who
have committed war crimes.
Mr. Fidell. Because the Supreme Court has not sought to answer
questions not directly presented to it, in either Hamdan or Hamdi, a
measure of uncertainty and additional litigation is inevitable. It
might indeed have been preferable for the Court to have gone further in
both of these decisions in providing a roadmap for Congress and the
executive branch. However, the Court's reluctance to do so is consonant
with its essentially conservative view of the judicial function in a
democracy. Accordingly, additional litigation (and uncertainty until
the litigation comes to an end) is inevitable. NIMJ does not agree that
the prospect of additional litigation is in itself a reason for or
against legislation. So long as our Nation adheres to its commitment to
the rule of law and our civilian courts are open, Congress must assume
that efforts will be made to seek judicial review of claims that
constitutional and other rights have been violated. It is to be hoped
that the Federal courts would address such claims on an expedited
basis, but if fear of litigation were permitted to trump important
rights and access to the courts, it would be a sad day for our country.
Moreover, the Supreme Court has long made clear that executive branch
action is most likely to be sustained when it is clearly supported by
congressional action. Legislation clarifying what the President can and
cannot do may produce litigation, but actions of the President that
find support in congressional legislation are most likely to be
sustained.
Mr. Mernin. After Hamdan, any legislative response which restricts
the application of Common Article 3 will invite further detainee
litigation by detainees. First, whether Congress even has the ability
to change the substantive law of war as to current detainees would be
placed in issue. Second, the substantive arguments as to whether the
newly legislated procedures satisfied our treaty obligations and
constitutional standards, as set forth by the Hamdan court, would be at
issue. Departing from the Common Article 3 standards would place an
enormous burden on those we call upon to implement these policies, who
would be compelled to maneuver in the grey area between the known
Common Article 3 standards and the new legislative standards. Damage to
the well-earned respect for the U.S. military legal system would be the
worst result.
Dr. Carafano. There are many lawyers looking for ways to defend
their clients and/or cause trouble for the administration. Congress
should not concern itself if there is more litigation (there will be),
but only if such future litigation has merit.
Mr. Katyal. If Congress were to authorize practices that violate
international and domestic standards, it would run the risk of having
the legislation invalidated. Those detained or interrogated by the
United States would be able to raise legal claims based, first, on the
violation of international law, and second, on the basis of American
constitutional protections, whose violation might be inferred from the
abandonment of these long-held standards for the treatment of
prisoners. For example, imagine that Congress wrote a statute that said
that the UCMJ does not incorporate Common Article 3, and therefore
allows trials without the presence of the defendant or his counsel. We
would see another round of litigation challenging, first, the denial of
trial rights as a matter of our treaty obligations with or without an
implementing statute; second, the legality of a statute that implicitly
repealed the treaty obligation; and third, the constitutionality of the
statute under the 5th amendment and other protections. Additionally, we
could expect to see litigation in international tribunals and wrangling
in the U.N. against the United States for rescinding a fundamental
treaty obligation.
Mr. Schlueter. If, as noted in the answer to question 14, above,
Congress decided to enact legislation covering the same topics as those
covered in Common Article 3, I cannot agree that it would necessarily
generate any litigation that would not otherwise be generated by those
arguing that a violation has occurred under Common Article 3. Even
then, only persons with standing, to allege violations of such
legislation would be able to initiate such litigation.
16. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in his prepared testimony, Mr. Schlueter states that ``it is
appropriate for Congress to map out only broad policy guidelines for
implementing military commissions, and leave to the President and the
DOD the task of more specifically setting out the procedures and rules
to be used.'' Mr. Fidell from the NIMJ seems to agree with that
approach. Could the panel address why Congress should set specifically
the procedures and rules to be used for military commissions?
Ms. Massimino. As stated in my testimony, before it launches into
deliberations about which procedures should govern in military
commissions, Congress should satisfy itself that commissions of any
kind--as opposed to regular courts martial--are necessary to try those
suspected of war crimes. But if it concludes that the courts martial
system is insufficient, Congress should be extremely skeptical of
proposals that would delegate the task of setting procedures and rules
exclusively to the executive branch. While there is nothing inherently
wrong with Congress setting broad policy guidelines and delegating the
authority to set detailed rules to the executive branch, in this
instance such delegation would be unwise. The administration has twice
set rules and procedures for military commission that have failed to
satisfy basic fair trial standards. The proposal it has now asks
Congress to approve is similarly deficient. We see in the
administration's current legislative proposal what kinds of rules it
would likely establish under such delegated authority: an accused would
be denied the right to be present at trial and provided all of the
evidence that was obtained by unlawful coercion. A trial system
operating under such rules would likely not survive judicial scrutiny
and would likely be viewed as illegitimate by the rest of the world.
Ms. Newell Bierman. There is nothing inherently wrong with
legislation that sets policy guidelines and delegates decisionmaking
regarding precise rules and procedures. But any delegation should be
made to an independent body of experts, such as the current and former
ranking JAGs, with the experience required to design rules that are
both fair and lawful--and not to the President and DOD. The President
and DOD have already proven far too willing to do away with basic fair
trial standards to be entrusted with the responsibility of crafting
commission rules and procedures. Twice, the administration crafted
rules and procedures to govern military commissions--first in March
2002, and then again in August 2005. Neither system withstood Supreme
Court scrutiny. Now, rather than adapting in response to the Supreme
Court decision, the administration has circulated a draft proposal that
incorporates many of the same deficiencies of the earlier systems that
were identified by the Supreme Court. At this point, the administration
should not be entrusted with the task of designing a system that is
sufficiently fair to pass judicial scrutiny.
Mr. Fidell. The overall design of the UCMJ has long been for many
details that might otherwise be enacted by Congress to be decided upon
by the President instead. It would certainly be odd for Congress to go
into more detail on procedures for trials of enemy combatants than it
has for trials of our own personnel. As indicated in our prepared
testimony and during the July 19, 2006 hearing, NIMJ believes that the
President should have the power to depart, for military commissions,
from a default model of general court-martial procedures, subject to
substantial protections such as particularized statements of
impracticability, reporting requirements, and meaningful judicial
review. However, in light of the strong evidence of intransigence on
the part of the executive branch in the weeks since the Supreme Court
decided Hamdan, including claims of impracticability that are entirely
lacking in substance, we have concluded that Congress should place some
aspects of military commission procedure beyond the President's power--
i.e., in those respects he should not be permitted to depart from
general court-martial procedures based on a claim of impracticability.
We are developing a further revision of our proposal to reflect this.
Mr. Mernin. The Association believes the suggestion that broad
deference to the executive would now result in a satisfactory system is
not supported by the public record. We applaud NIMJ's efforts and
continue to study its revised proposal which uses as its starting point
the UCMJ. The administration reportedly received and disregarded, or
failed to credit, significant input as to methods to better structure
the commissions. Accounts suggest that the experience and input of
senior JAG officers was largely ignored in the commission rulemaking
process. One would hope that the executive would now seek to establish
commissions which satisfied the goals of security, credibility, and
fairness. However, the evidence suggests that circumventing, rather
than addressing, the substantive issues raised by the Hamdan decision
may underlie the administration's efforts to respond.
Mr. Carafano. It should not do so; nor should it attempt to
micromanage other aspects of military intelligence and prosecution of
the war.
Mr. Katyal. As Justice Kennedy's concurrence reiterates, the
President's actions are granted the highest degree of deference when
they are consistent with, and authorized by, Congress. Giving the
executive branch largely unfettered discretion in the fashioning of a
new system creates a high risk that the President's actions will create
procedures and standards far below what treaties require, what the
Constitution requires, and what our existing laws require. Hamdan makes
clear that a vague grant of authority, for example, the AUMF, which
could theoretically authorize all sorts of executive actions, does not
necessarily immunize all actions taken, allegedly, pursuant to it.
Congressional authority insulates the President's actions from review
only when it is specific, thoughtful, and the product of clear
deliberation about the proper separation of power between the branches.
If Congress were only to set out policy guidelines that are overbroad
to the point of being meaningless, it would abdicate a critical role it
plays in guaranteeing compliance with the Constitution and other laws.
Moreover, Congress is fully capable of designing a fair, effective, and
legal system for trying detainees on its own without deferring to the
executive branch.
Indeed, the executive branch cannot be relied upon to craft an
adequate military commission system on its own. The executive branch
has already attempted to design and implement two military commission
systems--the one adopted by Military Commission Order No. 1 of March
21, 2002, and the system of August 31, 2005. Neither withstood Supreme
Court scrutiny. Despite the failings of the administration's
commissions, executive branch officials initially asked Congress to
simply ratify the August 31, 2005, commission system. The
administration has since circulated a draft bill that is radically
deficient in providing the necessary procedural protections to create a
fair and reliable commission system. The administration's track record
suggests that it is unwilling or unable to produce a commission system
that would have the necessary fairness to produce reliable findings
entitled to domestic and international legitimacy. Congress
unquestionably has the constitutional authority to design any military
commission system and should exercise such authority. Please also see
my answer to question 18 below.
Mr. Schlueter. As noted in the question, in my view Congress should
leave to the executive branch the task of drafting specific rules and
procedures. That is the model that has been used for decades in dealing
with military justice issues and is appropriate for any procedural
issues dealing with military commissions. The reason for that approach
is that both Congress and the Supreme Court have recognized that in the
area of military criminal justice procedures, the executive possesses
the necessary expertise to draft those rules. A similar approach is
used to draft the rules of procedure for Federal courts. That is, under
the Rules Enabling Act, the judicial branch is charged with
promulgating drafts of amendments to the Federal rules; those rules are
transmitted to the Supreme Court, which approves them and forwards them
to Congress. Absent any action by Congress, the amendments become
effective on December 1 of the year the Supreme Court approved them.
Given the controversial nature of any proposed rules for military
commissions, a compromise might be to require that the executive report
any such rules to Congress, which is charged under the Constitution
with general oversight in this area.
Mr. Silliman. I totally agree with the approach suggested by Mr.
Schlueter and Mr. Fidell, and join them in recommending that Congress
leave to the executive branch the crafting of the detailed rules of
procedure for military commissions, rather than trying to legislate
them. I believe that the case law supports the premise that the
President, when acting as Commander in Chief, has the constitutional
authority to establish military commissions as long as he stays within
congressional constraints. The Supreme Court in Hamdan v. Rumsfeld
implicitly reaffirmed this view. Further, those most knowledgeable of
how to draw the balance between prosecuting terrorists and safeguarding
national security interests are the practitioners of military law--
Active-Duty JAGs--who are in the executive branch. Therefore, Congress
should legislate only where necessary; for example, where a provision
of the UCMJ must be amended, and leave to the executive branch the
discretion to establish more detailed rules and procedures in an
executive order, such as the Manual for Courts-Martial.
17. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, could each
of you comment on Mr. Mernin's recommendation that Congress pass
legislation appointing an expert panel with the mandate of advising
Congress about the best way to establish a military commission system
that would respond to the Supreme Court's decision in Hamdan?
Ms. Massimino. This is an interesting proposal. A body of experts--
perhaps comprised of former JAGs--who remain independent from the
executive branch yet experienced in national security and military
commissions would be well-suited to assess the various models and test
the contentions made by the administration about the necessity for
depriving detainees of certain fundamental procedural protections
contained in the UCMJ and Manual for Courts Martial. Also, it is more
likely that a design proposed by an independent panel of experts would
be acceptable to the American public and deemed legitimate by the
international community.
Ms. Newell Bierman. The process of creating a fair system of
justice is complex and confusing, with interacting rules and
procedures, and requires great care. The creation of an independent and
expert panel to advise Congress is an excellent idea that would give
any commissions established by Congress greater legitimacy. A body of
experts would be able to dispel the myth that the UCMJ and Manual for
Court Martial do not provide a workable system of justice to try those
accused of war crimes.
Mr. Fidell. Expert panels such as those the New York City Bar
Association have proposed can often play a useful role, but we believe
such a panel in the present context would only put off some of the
tough decisions Congress is going to have to make in the end anyway.
The hearings Congress has already held have included many of the
individuals and groups that would be involved in an expert panel. For
these reasons, and given the indefensible delay that has already
occurred since the first detainees arrived at Guantanamo Bay, we
recommend against an expert panel.
Dr. Carafano. The executive and Congress have access to the
expertise they need. To appoint a commission and wait for their
findings would unnecessarily delay the effort to provide speedy due
process.
Mr. Katyal. This is an extremely important and good idea--whether
along the lines of Mr. Mernin's proposal or that of Senator Levin, who
has advocated a Code Committee review under the UCMJ provision. An
expert panel would be helpful for studying the problems involved in
trying detainees by military commission and developing useful empirical
evidence about the effectiveness and security of the different models
available. Indeed, an expert panel would go a long way towards ending
the myth making and posturing that has dominated this process from the
start. The administration has offered no empirical evidence, for
example, that courts-martial fail to protect both the government's
interests and the constitutional and human rights of the defendants.
Moreover, the administration's arguments that the hearsay and chain-of-
custody evidentiary rules are burdensome are vastly overstated. See my
testimony at pages 7-11. Given the tremendous delays in getting
military commissions off the ground thus far, devoting time and
research to designing a viable commission system will cause no
cognizable injury to our national security. There have been no military
commissions in the past half-century, let alone since September 11,
and, as the chairman eloquently pointed out, the eyes of the world are
watching us. Getting it wrong again is simply too dangerous. That bell
cannot be unrung.
Mr. Schlueter. I do not agree with the underlying recommendation
that an expert panel be created in order to address the issue of rules
of procedure for military commissions. That would simply bog Congress
down in political debates about what rules should or should not be
adopted. As I note in my answer to question 17, above, the task of
drafting the rules should be left to the executive.
Mr. Silliman. As I mentioned in my testimony, I believe the body of
experts best suited to making such recommendations regarding military
commissions are the Active-Duty JAGs, and they can easily and quickly
be brought together for this purpose. That would not require
legislation, only a willingness on the part of the executive department
to convene such a ``grass roots'' panel and to share its findings
openly with Congress so as to facilitate active and sincere joint
participation in responding to the Court's decision.
attorney general gonzales's testimony on hamdan
18. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in testimony before the Senate Judiciary Committee, Attorney General
Gonzales stated that the existing military commissions that were struck
down by Hamdan take into account the ``situational difficulties'' of
the war on terrorism and ``thus provide a useful basis for Congress's
consideration of modified procedures.'' Do you agree with the
suggestion that the commissions should be the starting point for
legislation?
Ms. Massimino. No. the military commissions struck down by the
Supreme Court were so inherently flawed that they should be set aside
in their entirety. Congress should start fresh in its consideration of
whether military commissions are necessary, and, if it finds they are,
what limited deviations from the courts-martial system are needed.
There is no reason for Congress to take as the framework for its
deliberations a system which completely failed to meet basic fair trial
standards. Military commission prosecutors themselves have remarked
that the military commissions were incapable of delivering a fair
trial. As the Supreme Court found, they deprived defendants of the most
basic rights, including the right of an accused to be present at trial
and provided all of the evidence presented to the factfinder, and the
right of the accused not to be convicted on the basis of unreliable
evidence that was obtained through unlawful coercion. Furthermore, the
military commissions system has been outperformed by the Federal court
system. The Federal courts have prosecuted 261 terrorism cases since
September 11 while the military commissions have not produced a single
conviction. If Congress is looking for a successful model for terrorism
prosecutions, perhaps it should also draw on the regular criminal
justice system.
Ms. Newell Bierman. No. The commissions that the Attorney General
continues to champion have failed to bring a single accused terrorist
to justice in their 4 years of operation, even as the DOJ has reported
having prosecuted over 260 terrorism cases in Federal court during the
same time period. Moreover, the commissions' flaws are both structural
and procedural--affecting the entire system--and cannot provide a
useful starting point for legislation. Even the military commission's
own prosecutors have complained that the commissions were unfair. The
Appointing Authority convened the commission, brought the charges,
selected the panel determining guilt or innocence, oversaw the
prosecutor and decided dispositive issues of law that arose in the
middle of trial. This is the equivalent as the executive acting as
judge, prosecutor, and jury. Moreover, as the Supreme Court concluded,
the commissions denied the most basic fair trial rights to defendants,
including the right to be present and to confront the evidence
presented against them.
Mr. Fidell. We do not agree with the Attorney General's suggestion.
We have a robust military justice system. It is not perfect--and we
would be pleased to discuss with the committee areas in which it could
be improved--but it is the obvious starting point, and the burden
should be placed squarely on those who contend otherwise. Indeed, the
disturbing court-martial cases that have arisen in Iraq and Afghanistan
in recent months demonstrate the military justice model's ability to
function in the most adverse circumstances and yet earn public
confidence. That is more that can be said of the military commissions
with which the executive branch has been fumbling for years in the
complete safety of the Guantanamo Bay enclave.
Mr. Mernin. No. The existing commission procedures were drafted in
a rush, modified without sufficient review, and never actually
implemented. No trials resulted from the existing commissions. If there
are trials to be conducted--rather than detentions dressed up under the
guise of due process--then security, fairness, and our national values
demand that a just, clear, and consistent trial system be implemented,
without hiding behind facile and conclusory assertions of ``situational
difficulties.''
Mr. Carafano. Yes and the ending point. As Justice Thomas stated in
his dissent, the President's latitude in military and foreign affairs,
especially when sanctioned by Congress in the form of an Authorization
to Use Military Force, and in a more specific authorization, if
necessary, is at its zenith.
Mr. Katyal. No. The flaws with the existing military commissions--
the flaws which contributed to their dismantling by the Supreme Court--
went to the core of the system itself and reeked of self-serving by the
administration. The commissions were plagued by years-long delays in
appointing counsel and even in charging the defendants. Further, the
commissions denied even the most basic trial rights to defendants,
including the right to be present at trial and the right to question
and confront the evidence presented against them. Even the military
commission's own prosecutors complained that the system was unfair to
defendants and designed to guarantee convictions, not fair trials. The
Appointing Authority, who convened the commissions and brought the
charges, was also responsible for selecting the panel determining guilt
or innocence and exerted control over the prosecutor. Domestically,
this is the equivalent of a judge initiating the case, picking the
charges, directing the prosecution, and selecting the jury. It is
unclear where the Attorney General would have Congress ``start'' in
this system, because its flaws are embedded within its very structure.
The starting point--and ending point--for any proposed authorizing
legislation is the court-martial system established by the UCMJ. For
reasons explored in my testimony, the court-martial system has many
significant advantages over any system that could be crafted out of the
existing commissions. Chief among these advantages is the tremendous
respect that has been accorded to the UCMJ since the time that it was
written. Countries throughout the world have emulated the U.S. court-
martial system, and it continues to be a model of how to achieve
justice when sensitive information and special parties are involved.
The court-martial system is flexible, secure, and effective. Best of
all, it already exists.
Mr. Schlueter. I wholeheartedly agree that the baseline for further
consideration of military commission procedures should be the existing
rules adopted in November. In promulgating those procedures, the
drafters considered a wide range of issues and I believe, got most of
it right. The fact that some tweaking is required does not justify
rejecting all of the rules.
Mr. Silliman. I do not. The Supreme Court appropriately delineated
the many legal deficiencies, both domestic and international, with
regard to the President's commission system, and strongly implied that
the UCMJ be at the core of any new system established in response to
the Court's ruling. That Code, the UCMJ, should be the starting point.
19. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
why would someone suggest that the commissions and not the UCMJ should
be the starting point for legislation?
Ms. Massimino. There is no good reason why someone would make this
suggestion. As the Supreme Court made clear, the default system is the
UCMJ. Those who advocate deviating from the UCMJ have the burden of
demonstrating why it is impracticable to adhere to this system. There
are numerous advantages to using the UCMJ as a stating point for
legislation. Unlike the military commissions system, the UCMJ has been
approved by the Supreme Court. Therefore, its use will not lead to
another round of litigation challenging the legality of the system.
Also, military judges, prosecutors, and defense counsel are well-versed
in the UCMJ's procedures and, consequently, are better prepared to
handle prosecutions under this system. As I noted in my testimony, one
of the major deficiencies with the military commissions at Guantanamo
was the lack of clarity as to what constituted ``commission law.'' The
absence of time-tested and court-adjudicated rules and procedures
resulted in continual delays, and much less predictability and
stability. Moreover, the efficacy of the UCMJ system has been
reaffirmed with the recent court-martial cases that arose in Iraq and
Afghanistan. These cases, which have required the gathering of evidence
from the operational settings, prove that the UCMJ is fully capable of
taking into account the ``situational difficulties'' of the war on
terrorism.
Ms. Newell Bierman. It is unclear why someone would suggest this.
When Senator Graham asked the ranking JAGs of each of the armed
services: ``We need to have military commissions as uniformed as
possible with the UCMJ, because that's the root source of the law of
military commissions. Is that correct?'' (7/13, SASC), all answered
``yes.'' Enacting legislation based on the military commissions--rather
than the UCMJ--will undoubtedly lead to a whole new round of
litigation. Military commissions rather than suspected terrorists
remain on trial. The UCMJ, in contrast, is a tried and true system,
approved by the Supreme Court, and created in response to concerns
about the inadequacies of military commissions hastily put together
during World War II. It provides the appropriate starting point for any
congressional legislation.
Mr. Fidell. It is difficult to speculate as to why anyone would
choose the wrong starting point, as the executive branch has elected to
continue to do. If the reason is a desire to stack the deck and ensure
convictions, that would be incompatible with our national values. If
the reason is to maximize the power of the so-called unitary executive,
the easy answer is that in this area Congress enjoys its own express
grant of authority under Article I, 8 of the Constitution.
Mr. Mernin. Someone acting on behalf of a prosecutor, given carte
blanche, might follow an ill-advised tendency to create those
procedures most likely to obtain convictions, in the belief that
prosecutorial discretion would prevent abuse. That is not a recipe for
due process, fairness, or honor.
Dr. Carafano. I do not know, given that it would be extremely
unwise. I think it would be inappropriate to use UCMJ.
Mr. Katyal. From the prosecutor's perspective, if Congress gives
you the ability to write all the rules for trial and the ability to
define the offenses and pick the judges, you are likely to be elated.
It's just like appointing the fox to guard the hen house. Trying
prisoners captured in the global war on terror no doubt poses unique
challenges. For these reasons, the administration tends to argue that
it needs a unique court system to try those captured in such unique
circumstances. Nevertheless, different circumstances alone do not
justify deviating from a set of laws that has been flexible enough to
meet the needs of the military during a period where the nature of war,
and the nature of the military, have both changed rapidly. The UCMJ is
unfamiliar to most civilian lawyers and has its own system of precedent
and procedure that government lawyers would themselves have to learn.
Of course, it's easy to see why the administration would rather start
from scratch and build a system where it has written all the rules and
picked the judges. The administration, however, has failed to
articulate a compelling explanation for why such a deviation from the
existing system is necessary or prudent. Indeed, as the administration
has pointed out elsewhere, the DOJ has been remarkably successful in
using the existing Article III courts to obtain terrorism convictions--
261 between September 11, 2001 and June 22, 2006 by its own count.
Mr. Schlueter. As I note in my answer to question 18, the drafters
of those rules considered a wide range of issues and had considerable
input from both civilian and military sources. Granted, the DOD
ultimately rejected some recommendations from the uniformed lawyers but
that fact alone does not warrant complete rejection of the rules.
Instead, the DOD should be given the option of amending those rules
found wanting by the Court in Hamdan, or by explaining why the UCMJ
procedures are not applicable to commissions.
Mr. Silliman. I believe the rationale for such a suggestion would
be that the UCMJ is an unworkable system for prosecuting terrorists
because it contains procedural protections which should not be afforded
to those who mock and do not adhere to the rule of law. I do not agree
with that rationale because I believe a military commission system
under the auspices of the UCMJ is quite workable for such trials and
has the added advantage of satisfying judicial muster and having a
great measure of international credibility.
20. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in testimony before the Senate Judiciary Committee, Attorney General
Gonzales stated that ``no one can expect members of our military to
read Miranda warnings to terrorists captured on the battlefield, or
provide terrorists on the battlefield immediate access to counsel, or
maintain a strict chain of custody for evidence. Nor should terrorist
trials compromise sources and methods for gathering intelligence, or
prohibit the admission of probative hearsay evidence.'' Mr. Gonzales
suggests that each of these examples would happen if the UCMJ were used
as the basis for detainee trials. Do you agree with Mr. Gonzales's
assessment?
Ms. Massimino. No. The administration's concerns reveal a lack of
understanding of the flexibility of the court martial system for
dealing with these issues. First, in no situation does the UCMJ require
combatants captured on the battlefield to be given either Miranda
warnings or immediate access to counsel. These rights are only required
if the detainees are interrogated for law enforcement purposes, not for
intelligence gathering purposes. Second, the UCMJ has a low threshold
for the authentication of evidence. Evidence may be authenticated
either directly or circumstantially; a rigid chain-of-custody need not
be established. Third, the UCMJ has an adequate procedure to address
the administration's legitimate concerns about sources and methods;
prosecutors can introduce summarized or redacted versions. Fourth, the
UCMJ has a wide array of hearsay exceptions which allow the admission
of reliable hearsay evidence.
Ms. Newell Bierman. As described in my testimony, these are all red
herrings. First, the UCMJ does not require the military to read Miranda
warnings or provide counsel to those captured on the battlefield. Under
the UCMJ, Miranda warnings and access to counsel are only required when
an individual is being interrogated for law enforcement purposes. They
are not required when an individual is questioned for interrogation
purposes, and certainly are not required to be given when capturing
suspected terrorists on the battlefield. Second, the UCMJ and MCM,
which contains the rules of evidence, do not require strict chain of
custody for evidence to be introduced at trial. They do, however,
require some sort of showing that the evidence is what it is purported
to be--a standard that should apply in any trial that is fair. Third,
the UCMJ and MCM protect against the disclosure of any evidence that
would compromise intelligence gathering and give the government broad
latitude to introduce substitute forms of classified evidence to
protect intelligence sources and methods. Fourth, the UCMJ and MCM
include 24 exceptions to the prohibition against hearsay, including a
residual exception designed to allow in statements of any witness who
is ``unavailable.'' These rules provide broad latitude to admit
hearsay.
Mr. Fidell. We do not agree with the Attorney General. Military
justice jurisprudence already distinguishes between interrogations for
law enforcement or disciplinary purposes and those for operational
purposes. United States v. Loukas, 29 M.J. 385 (C.M.A. 1990); United
States v. Smith, 56 M.J. 653 (A. Ct. Crim. App. 2001) (no warnings
required where questions served to execute U.S. Disciplinary Barracks
operational and security requirements); United States v. Moses, 45 M.J.
132 (C.A.A.F. 1996) (no warnings required during armed stand-off with
suspect). Unwarned statements obtained in operational settings for
security, intelligence, or other non-law-enforcement purposes would be
admissible in evidence.
The Attorney General's concern about compromising sources and
methods is readily handled under M.R.E. 505.
The admission of hearsay evidence would raise severe problems under
the Confrontation Clause of the Sixth Amendment to the Constitution.
Crawford v. Washington, 541 U.S. 36 (2004).
Chain-of-custody issues have not proven problematic in the normal
course of military justice even in cases arising from operational
settings. There are, moreover, various alternative ways to authenticate
``real'' (i.e., tangible) evidence without having to rely on chain-of-
custody evidence. For example, a seized weapon can be marked by the
seizing soldier with a knife.
Mr. Mernin. No. The Association believes that the Attorney
General's examples misrepresent the prosecutorial realities and the
UCMJ, and we do not support the extreme departure from fundamental
guarantees of fairness which the administration endorses. With respect
to the notion of Miranda warnings in the battlefield, there would be no
such requirement. The military law version of Miranda warnings provided
by Article 31(b) of the UCMJ are applicable only with respect to law
enforcement interrogations. Similarly, we have no understanding that
any right to counsel ever attaches on the battlefield. The UCMJ already
provides for a variety of alternate methods of authentication of
evidence, taking into account the same sorts of evidentiary issues to
which the Attorney General alluded. In sum, the texts of the UCMJ and
the Manual for Courts Martial dispel the Attorney General's assertions
and contain necessary safeguards and exceptions to permit effective
prosecution, providing necessary latitude to prosecutors while
guaranteeing fundamental fairness.
Mr. Carafano. Yes. The UCMJ is a traditional legal system that puts
the protection of the right of the individual foremost, and then adds
accommodations for national security and military necessity. That
system is appropriate for U.S. citizen-soldiers who may err. Such a
system is not appropriate for unlawful, enemy combatants who want to
destroy us in the long war in which we are engaged. For example,
Article 31(b) of the UCMJ requires informing servicemen suspected of a
crime of their Miranda rights.
Mr. Katyal. My testimony goes at length into each of these issues
at pp. 8-10. To summarize:
Miranda Warnings
Article 31(b) of the UCMJ does contain a Miranda-like requirement.
But our Nation's highest military court has held that an interrogation
for purposes of intelligence gathering was not subject to this
requirement, and that evidence obtained without a 31(b) warning can be
admitted into a court-martial proceeding. See United States v.
Lonetree, 35 M.J. 396 (C.M.A. 1992). Military appellate courts have
repeatedly held that Article 31(b) warnings are required only for ``a
law-enforcement or disciplinary investigation.'' See, e.g., United
States v. Loukas, 29 M.J. 385, 387 (C.M.A. 1990). The notion that
soldiers in the field would be required to give Article 31(b) warnings
to potential enemy combatants whom they encounter or detain is simply
not true.
Counsel
I know of no responsible scholar or lawyer who seriously contends
that existing law requires ``provid[ing] terrorists on the battlefield
immediate access to counsel.'' Come to think of it, I do not know any
irresponsible ones who seriously advocate this position either.
Chain of Custody
Military Rules of Evidence 901-903 deal with the admission of
documents--and these rules make introduction of evidence easy, not
difficult. The proponent of evidence can use various methods to
authenticate it and is not tied to any rigid step-by-step
authentication techniques. Stephen A. Saltzburg et al., Military Rules
of Evidence Manual 9-4 (5th ed. 2003). Military Rule of Evidence 901
requires only a showing of authenticity through either direct or
circumstantial evidence. Id. Under the identical Federal Rule 901(a),
``[t]here is no single way to authenticate evidence. In particular, the
direct testimony of a custodian or a percipient witness is not a sine
qua non to the authentication of a writing. Thus, a document's
appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances,
can, in cumulation, even without direct testimony, provide sufficient
indicia of reliability to permit a finding that it is authentic.''
United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994) (citations
and internal quotation marks omitted), cert. denied, 514 U.S. 1084
(1995). Additionally, ``[m]ere breaks or gaps in the chain [of custody]
affect only the weight of the evidence, and not its admissibility.''
Saltzburg, supra, at 8-9; see also United States v. Hudson, 20M.J. 607
(A.F.C.M.R. 1985).
Hearsay
The 800 series of the Military Rules of Evidence generally track
the Federal Rules of Evidence, though the military's business records
exception is far broader than the civilian rule, expressly allowing the
admission of such records as ``forensic laboratory reports'' and
``chain of custody documents.'' The hearsay rules, including the
residual hearsay exception in Military Rule of Evidence 807, are
actually quite flexible. They are designed to promote accuracy by
allowing in forms of hearsay that are reliable and excluding forms of
hearsay that are unreliable. These rules should be embraced, not
feared.
Mr. Schlueter. He is correct, if one were to take the rules
governing courts-martial and apply them, without limitation, to
military commissions.
Mr. Silliman. No, I do not. We must be careful to separate issues
regarding military operations from questions of the admissibility of
evidence in a judicial forum. For example, most of the individuals
captured in Afghanistan or Iraq, and thereafter detained at Guantanamo
Bay and elsewhere, are being held because they were determined to be
unlawful combatants, a status which denies them protection as prisoners
of war under the Third Geneva Convention. Simply being an unlawful
combatant is not, in and of itself, a violation of the law of war.
Violating the law of war requires some overt act contrary to that body
of law which was committed within the context of a recognized armed
conflict. Thus, with regard to the Article 31(b) requirement for an
advice of rights upon suspicion of an offense, that would seldom be
required upon initial capture. Further, that requirement has been
interpreted in military courts as applying only to those acting in an
official capacity (e.g. commanders, law enforcement personnel, CID,
etc.), rather than just anyone who might suspect that an offense was
committed. Also, choices often have to be made as to whether it is more
important to detain an individual for purposes of acquiring needed
intelligence (where one does not worry about evidentiary standards and
advice of rights because there is no intent to go to trial) or whether
it is clear from the beginning that there will be a prosecution and
that any statements taken must necessarily be under circumstances which
comply with Article 31 so that they can be used against the accused.
Since perhaps up to 95 percent of those we have detained at Guantanamo
Bay will never be prosecuted, and they have been held solely for
intelligence purposes, invoking Article 31(b) as a ``major problem,''
in my opinion, merely confuses the issue.
As to chain of custody considerations, there have been many cases
where members of our Armed Forces have been prosecuted by court-martial
for crimes committed on or near the battlefield, and chain of custody
issues have neither precluded sending the case to trial or, where the
weight of the evidence supports it, a conviction. Even if there are
breaks in the chain of custody of a piece of evidence to be offered at
trial, those breaks only affect the weight of the evidence, not its
admissibility.
Finally, with regard to safeguarding classified information during
trial proceedings or dealing with the admissibility of what some may
consider less reliable evidence, such as hearsay, these ``problems''
are easily solved within a military commissions system under the UCMJ
by making minor exceptions from regular court-martial procedures.
specific trial procedures
21. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in testimony last week before the Senate Judiciary Committee, Steven
Bradbury from the DOJ stated that ``a good example to look to for an
acceptable hearsay rule is the international criminal tribunals, for
example, for the former Yugoslavia and for Rwanda, which regularly
allow the use of hearsay evidence, as long as the evidence is probative
and reliable in the determination of the factfinder, and as long as it
is not outweighed by undue prejudice.'' Do you believe that this is an
acceptable hearsay rule?
Ms. Massimino. Mr. Bradbury did not accurately describe the hearsay
rule adopted by the ICTY and ICTR in this statement. Rule 92 bis allows
the admission of hearsay evidence only for nonmaterial facts. Unlike
the hearsay rule proposed by the administration, the ICTY and ICTR do
not allow admission of hearsay evidence that goes to prove a material
fact. Furthermore, the ICTY and ICTR mandate that judges, individuals
with legal training, decide whether hearsay evidence should be
admitted. Conversely, the military commissions would empower
individuals who lack legal training to make these often complex and
nuanced decisions on hearsay evidence. Thus, the disparity in legal
knowledge between the international judges and the military
commissions' jurors makes the admission of hearsay--for the limited
purpose of establishing nonmaterial facts--appropriate for the ICTY and
ICTR but not for the military commissions.
Ms. Newell Bierman. As explained in my testimony, on page 11, these
rules cannot be considered in isolation. While the international
tribunals allow the factfinder to admit any relevant evidence that he
or she deems to have probative value, other rules protect against the
use of unreliable evidence and the introduction of statements obtained
through torture or coercion. Importantly, both the ICTY and ICTR
contain an additional important protection, Rule 92 bis, which ensures
that hearsay evidence can only be used as corroborating evidence, and
cannot be used to establish the central facts of the case--acts or
conduct of the accused that go to proof of the wrongdoing charged.
Moreover, the ICC and ICTY both contain clear prohibitions on evidence
that is obtained by a violation of internationally recognized human
rights norms, such as a prohibition against evidence obtained through
torture. These international tribunals are made up of legally trained
judges who have experience making fine distinctions on the reliability
and value of different forms of evidence that a jury or even a panel of
non-lawyer officers simply won't have.
In sum, the ICTY and ICTR hearsay rule would not be acceptable
unless accompanied by other critical protections, including, at a
minimum, a prohibition against evidence obtained through torture and
cruel, inhuman, and degrading treatment; a prohibition on the use of
hearsay evidence to establish the central facts of the case; and a
meaningful opportunity to challenge a statement's reliability.
Mr. Fidell. Mr. Bradbury's assertion is misleading. Rule 92 bis
(Proof of Facts other than by Oral Evidence) of the International
Criminal Tribunals for the Former Yugoslavia and Rwanda limits the use
of hearsay evidence to a statement ``which goes to proof of a matter
other than the acts and conduct of the accused as charged in the
indictment.''
Mr. Mernin. Mr. Bradbury's shorthand reference apparently seeks to
raise the inference that hearsay was regularly used to prove a case
against an accused in the cited international criminal tribunals. We
understand him to refer, in particular, to the permitted use of written
statements in lieu of live testimony. The suggestion is misleading.
Rule 92 bis (bis is used for ``(a)'' or ``A'' in the text's numbering
protocol) permits the introduction of written witness statements in
certain circumstances, in lieu of live testimony. However, if such a
statement concerns the acts or conduct of the accused, the witness is
to be made available for live testimony; thus, the written statement
alone is never admitted as evidence in chief. Moreover, it is always
dangerous and difficult to cherry-pick rules from one set of procedures
and attempt to overlay them onto another system. The issues raised are
complex. If the committee desires, the Association would be able to
make an expert on rules of evidence in the international criminal
tribunals available for consultation.
Dr. Carafano. Yes, but it might be more generous than necessary,
depending on how it is interpreted.
Mr. Katyal. As my testimony explains at pages 7-11, this is
actually not an accurate statement of the hearsay rules used in the
international criminal tribunals. Those who would rely on ICTY/ICTR
evidence rules would do well to consider that the factfinders in those
tribunals are all legally-trained individuals and judges who are used
to certain standards of evidence, and who know how to discount evidence
that does not meet traditional indicia of reliability. The military
commission, by contrast, consists of untrained, lay factfinders, all of
whom may have differing assumptions about such matters. Rules of
evidence are drafted, in part, to guide lay ``jurors'' and avoid
evidence that might be inflammatory or probative in the minds of the
untrained. In short, the hearsay standard adopted by the international
criminal tribunals is acceptable for that court system, but not for
military commissions to try detainees. As I understand it, the ICTY/
ICTR can't adjudge death, whereas a military commission can, so there
is reason to be even more cautious with respect to evidentiary rules
for commissions than for international tribunals. Please also see my
answer to question 22, below.
Mr. Schlueter. Although I am not familiar with the specific hearsay
rules applied by the international criminal tribunals, that rule makes
perfect sense. In our jurisprudence, we place a great deal of emphasis
on the heasay rule, often citing English common law. However, in many
countries, including England, the hearsay rule is essentially a
requirement that the out of court statements be trustworthy, and
relevant; the rule in those countries does not seem to carry the weight
that we ascribe to it.
Mr. Silliman. I do not think it is readily adaptable to a military
commission system. The more flexible hearsay rules under the ICTY or
ICTR are part of an integral evidentiary system which has other
safeguards to guarantee authenticity. Therefore, we must be exceedingly
cautious in simply borrowing, out of context, an evidentiary rule from
an international tribunal.
22. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
is this how the hearsay rule used by the international criminal
tribunals works?
Ms. Massimino. See answer to question 21.
Ms. Newell Bierman. See answer to question 21.
Mr. Fidell. Please see our response to question 21. Hearsay that
would otherwise be inadmissible under Crawford v. Washington, 541 U.S.
36 (2004), is admissible in the ICTY and ICTR only on matters other
than the accused's own acts and conduct. See Prosecutor v. Galic, No.
IT-98-29-AR73.2, at 1 (ICTY June 7, 2002) (ICTY Jud. Supp. No. 34).
Mr. Mernin. No. See response to question 21. In addition, while the
rules for admission of hearsay evidence are broader under the
international criminal tribunals, we understand that, for example, in
the Milosevic trial, the defense was provided access to every adverse
witness for cross-examination, whether that witness' initial testimony
offered was written or oral.
Dr. Carafano. I don't know.
Mr. Katyal. No. As I understand it, Assistant Attorney General
Bradbury did not mention that the rules of both ICTY and ICTR include
an important and major restriction to the rule allowing hearsay--to the
point of making a comparison virtually irrelevant for the current
military commissions debate. Under Rule 92 bis of both ICTY and ICTR
rules, the trial chamber may choose to admit ``a written statement in
lieu of oral testimony'' unless such a statement would prove ``acts and
conduct of the accused as charged in the indictment.'' The trial
chamber trying Slobodan Milosevic emphasized that ``regardless of how
repetitive [written statement] evidence is, it cannot be admitted if it
goes directly to the acts or conduct of the accused.'' Prosecutor v.
Milosevic, ICTY Case No. IT-02-54, P 8 (Mar. 21, 2002). If the
administration seriously wants to play by ICTY/ICTR rules, it should
play by all of them, and not hand pick a few divorced from context to
suit its purposes.
Mr. Schlueter. As I note in question 21, I am not familiar with the
specific hearsay rule applications in international criminal tribunals.
Mr. Silliman. The ``trier of fact'' in an international criminal
tribunal is a trial judge (rather than a panel of ``lay'' officers) who
is well-versed in the fine points of the law regarding the
admissibility of evidence. He or she therefore has sufficient legal
training so as to be able, in deliberating guilt or innocence, to give
the appropriate weight to evidence which, although it may be deemed
technically admissible under the more flexible rule, is nonetheless far
from reliable.
23. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
does the UCMJ and specifically Military Rule of Evidence 501,
adequately protect classified evidence? If not, what do we need to do
to enhance the protection of classified information in detainee trials?
Ms. Massimino. Military Rule of Evidence 505 adequately protects
classified evidence. Classified information whose disclosure is harmful
to national security can be presented in alternative forms, including a
redacted version or a summary of the information. This rule, which is
highly regarded by military judges, prosecutors, and defense counsel,
strikes an appropriate balance between the government's interest in
protecting against disclosure of information that is damaging to our
national security and the right of an accused to know and confront the
evidence used against him.
Ms. Newell Bierman. Yes. There is widespread agreement among
experienced practitioners, JAGs, and academics that the Military Rules
of Evidence provide strong protections against the disclosure of
classified evidence. If disclosure of classified evidence would harm
national security, the government is entitled to submit a wide array of
substitute forms of the same information, including a redacted version
of the classified information, a summary of the information, or even a
summary of the facts that the evidence would tend to prove. The rules
ensure that no classified evidence is provided to the accused if its
disclosure would in any way harm national security.
Mr. Fidell. The question should refer to Rule 505, which adequately
protects classified information and closely follows the Classified
Information Procedures Act of 1980. No special provisions are needed to
enhance Rule 505 for military commission cases. ``Graymail'' is much
less of a concern in the military commission context than in other
criminal cases because the government claims authority to continue to
detain military commission accused who are acquitted.
Mr. Mernin. The Military Rules of Evidence, in particular Rule 505,
provide adequate procedural safeguards for both prosecution and defense
with respect to classified evidence. We have not been persuaded that
any other procedure is necessitated, certainly not by conclusory claims
of ``situational difficulties.'' The defense should have access to any
evidence supporting the charges against the accused which is offered to
the court, and civilian defense counsel with security clearances should
have access to all evidence admitted against the accused and all
potentially exculpatory evidence.
Dr. Carafano. No; we need to allow the President and future
presidents to make such rules.
Mr. Katyal. Please see my answer to question 6, supra, and my
testimony at p. 11. There is no need to break from these rules without
strong empirical evidence demonstrating such a necessity.
Mr. Schlueter. Yes, in my opinion, those rules would adequately
protect classified information. If the DOD were to show that they are
not, I am sure that those rules could be modified to meet the
exigencies of military commissions.
Mr. Silliman. The rules governing introduction of classified
information into evidence are found in MREs 505 and 506 which basically
mirror the provisions of the Classified Information Procedures Act. I
consider them more than adequate to protect classified information when
requested by the accused for use in his defense. As to safeguarding
critical classified information to be used by the government in
detainee trials on the question of guilt or innocence, while still
ensuring some measure of authenticity and at least a minimal level of
access by the accused, specific rules could be adopted by amending the
MREs in the Manual for Courts-Martial so as to provide for this.
Perhaps the use of unclassified summaries specifically approved by the
military judge might be one option, but there may be others which could
deal with this issue. All this is easily accomplished in a military
commission system under the UCMJ by justifying, via Article 36(b) of
the Code, the need to deviate from the MRE procedures.
24. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in testimony before the Senate Judiciary Committee and the Senate Armed
Services Committee last week, much was made of the potential problems
posed by Article 31(b) of the UCMJ--which essentially sets up the
military's Miranda rights--in the context of detainee trials. Is it the
case that this article ties our hands with respect to intelligence
gathering?
Ms. Massimino. No. See answer to question 20. The UCMJ does not
require Miranda warnings when the interrogation is carried out for
intelligence gathering purposes. They are only required for
interrogations with law enforcement purposes.
Ms. Newell Bierman. No. As stated in my testimony on pages 11-13
and in answer to question 20, Miranda warnings are not required when a
detainee is being interrogated for intelligence purposes. They are only
required when someone is being interrogated for law enforcement
purposes. The claims that Article 31(b) would impose an obligation on
troops to give Miranda warnings before they capture and question
suspected terrorists on the battlefield is a straw man, put forth to
mislead and confuse the committee.
Mr. Fidell. No. Please refer to our response to question 20.
Mr. Mernin. No. See response to question 20.
Dr. Carafano. Yes, among other problems.
Mr. Katyal. Please see my answer to question 20, supra, as well as
my testimony at pp. 8-9.
Mr. Schlueter. Yes, a requirement that military interrogators (or
civilian employees working for the military) would have to give rights-
warnings is not a frivolous concern or smoke screen. Under Article
31(b), all suspects being questioned must be advised of the offense, of
the right to remain silent, and the fact that their statements may be
used against them. Article 31 does not contain a counsel-rights
component. But military case law and Military Rule of Evidence 305 also
require Miranda-type counsel warnings if the suspect is in custody.
More importantly, Military Rule of Evidence 304 contains an
exclusionary rule that provides that unwarned statements may be
excluded.
If authorities simply wish to gather information, but not introduce
the statements into evidence, then arguably they can continue to gather
information through interrogation.
Mr. Silliman. No, it does not. As discussed more fully in my answer
to a previous question (question 20), the law does not require that
every soldier on the battlefield give an Article 31(b) advice of rights
warning upon initial capture. If one is simply trying to acquire
intelligence, rather than gathering evidence for use in a later trial,
then no advice of rights would be necessary.
25. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
if the military's Miranda rule is truly problematic, how should we fix
it?
Ms. Massimino. The UCMJ's Miranda rule is not problematic and thus
does not need fixing. Interrogators are not burdened by the Miranda
rule since they need not provide detainees with Miranda warnings when
interrogating for intelligence purposes. Furthermore, these statements
are admissible in court so long as they were not obtained through the
use of coercion, unlawful influence, or unlawful inducement.
Ms. Newell Bierman. The UCMJ Miranda rule is not problematic. It
ensures that the accused are not coerced into incriminating themselves
when being interrogated for law enforcement purposes, while leaving
interrogators free to question detainees for intelligence purposes
without issuing Miranda warnings. Moreover, any statements that are
elicited during intelligence interrogations can still be admissible in
court, even if no Miranda warnings have been given.
Mr. Fidell. Article 31 has not been a problem and does not need to
be fixed. Any legislation Congress enacts should, however, make clear
that the existing suppression rule in Article 31(d) for statements
obtained ``through the use of coercion, unlawful influence, or unlawful
inducement,'' currently applicable to courts-martial, also applies to
military commissions.
Mr. Mernin. The Association does not have any understanding that
UCMJ Article 31 is ``problematic'' and needs to be fixed. If it were,
it would need to be fixed generally, and not merely with respect to
detainees.
Dr. Carafano. Let the President set the rules.
Mr. Katyal. I would only ``fix'' any of the military's existing
rules after the empirical evidence has demonstrated that they need
fixing. On the other hand, statutory language codifying the case law
exempting operational/intelligence questioning from the Article 31(b)
rights warning requirement and the exclusionary rule for violating the
rights warning requirement would do no harm--it would simplify codify
the existing law.
Mr. Schlueter. One way to fix the Miranda issue is to create
statutory exception (or in the Military Rules of Evidence, should a
decision be made to apply the Rules of Evidence to military
commissions) for certain trials or for those cases where it is
determined that the interrogation was for important national security
information.
Mr. Silliman. Although I do not view Article 31(b) of the Code as
problematic with regard to mere intelligence gathering, if there is
concern that it might pose a problem as to gathering evidence for use
in a later military commission, then the advice of rights requirement
could be a provision which is deemed to be ``impracticable'' in the
President's determination under Article 36(b) justifying deviations
from normal court-martial procedures.
26. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
at the House Armed Services Committee hearing on Hamdan, Mr. Bradbury
of the Justice Department's Office of Legal Counsel said the
administration wishes to maintain flexibility in introducing evidence
coerced from detainees. Specifically, he said, ``We do not use as
evidence in military commissions evidence that is determined to have
been obtained through torture. But when you talk about coercion and
statements obtained through coercive questioning, there's obviously a
spectrum, a gradation of what some might consider pressuring or
coercion short of torture, and I don't think you can make an absolute
rule.'' Is Mr. Bradbury correct in his analysis of coercion and the
need to introduce coerced evidence in detainee trials?
Ms. Massimino. He is not. As explained in my testimony on page 8,
if there is any lesson we should have learned over the past 4 years, it
is that obtaining information through the use of force, coercion, or
intimidation, is unnecessary and counter-productive. To enforce legal
prohibitions against torture and cruel treatment, we must draw a bright
line against the introduction of any evidence obtained through unlawful
coercion. Admitting evidence acquired from coercive interrogation is a
de facto sanctioning of that coercive conduct and would seriously
undermine the prohibitions on torture and other cruel, inhuman, or
degrading treatment found in Common Article 3 and the DTA. If we want
to uphold these standards, we should not undermine them by admitting
into court the fruits of their violations.
Ms. Newell Bierman. As Major General Scott C. Black, JAG of the
Army, told the Senate Judiciary Committee: ``I don't believe that a
statement that is obtained under coercive, under torture, certainly,
and under coercive measures should be admissible.'' (8/2, Senate
Hearing). All of the other ranking JAGs agreed. This rule is
particularly important given the administration's extremely narrow
definition of torture, which does not even include waterboarding (a
form of mock drowning). The government's proposed rule would allow the
use of evidence obtained through a wide array of cruel and inhuman
practices that don't meet the government's definition of torture--use
of snarling dogs, naked pyramids of prisoners, prolonged exposure to
extremes of heat and cold. Congress would be effectively sanctioning
such practices, inviting their continued use. As Senator McCain stated
in the August 2, 2006, hearing before this committee: ``I think that if
you practice illegal, inhumane treatment and allow that to be
admissible in court, that would be a radical departure from any
practice [of] this Nation.''
Mr. Fidell. NIMJ sees no basis for distinguishing between courts-
martial and military commissions from the standpoint of suppressing
evidence obtained through coercion. We believe the Nation would be
profoundly offended if one of our GIs or civilian personnel were put on
trial elsewhere and evidence obtained through coercion were admissible.
We must apply that same standard to ourselves. What constitutes
coercion, of course, will have to be decided as a matter of law by the
military judge in a military commission.
Where coercion has been applied, the resulting evidence (including
fruits) would be inadmissible in a military commission trial, but could
still be of value for intelligence purposes. At times, the executive
branch may be put to difficult choices between the need for
intelligence and the desire to invoke the criminal process.
Mr. Mernin. According to the U.S. Army's Field Manual on
Intelligence Interrogation and its predecessors, coercion and threats
of coercion are illegal, immoral, and of little or no practical value
in interrogations. Our Armed Forces have long understood that coerced
evidence is unreliable. Even assuming that isolated coerced information
were to prove worthwhile in the intelligence-gathering context, to
conclude that such information was sufficiently reliable so as to be
introduced as evidence would be a departure from well-established law
and practice, contrary to what years of experience have taught our
Armed Forces, and contrary to our Nation's values. The Association
believes that Senator McCain and the testifying JAGs are inarguably
correct on this fundamental issue.
Dr. Carafano. Yes.
Mr. Katyal. As Senator McCain has stated, coerced confessions
should be excluded. The Supreme Court has repeatedly recognized ``the
probable unreliability of confessions that are obtained in a manner
deemed coercive.'' Jackson v. Denno, 378 U.S. 368, 386 (1964). The
Supreme Court recognized this concept most recently in an opinion
written by Chief Justice Roberts. See Sanchez-Llamas v. Oregon, 126 S.
Ct. 2669 (2006) (``We require exclusion of coerced confessions both
because we disapprove of such coercion and because such confessions
tend to be unreliable.'').
Article 31(d) of the UCMJ categorically excludes from courts-
martial statements obtained by coercion. Article 31(a) of UCMJ extends
this rule to compelling someone to answer questions. The commission
version of Article 31(a), meanwhile, only speaks to testifying. When
combined with the commission version of 31(b), which allows the
admission of coerced statements, the result is that U.S. military
members have an incentive to use coercion to gather information.
While it might be appropriate to include a definition of coerced
statements in a statute applicable to commissions--a definition that
does not appear in the UCMJ--coerced statements should be per se
inadmissible.
Mr. Schlueter. I agree with Mr. Bradbury. That principle applies
not only in military commissions but in both civilian and military law.
The case law on this point is clear. Police may use trickery,
deception, and even some mentally coercive means to obtain statements.
The test is whether the suspect's will was overborne. The fact that a
suspect is delusional or that interrogators appealed to a suspect's
emotions or even religious beliefs are common and permissible tactics
for law enforcement--as long as the accused's statements are voluntary.
Mr. Silliman. First, I do not agree with Mr. Bradbury regarding his
inability to define coercion short of torture. Those techniques which
were approved for use in Army Field Manual 34-52 were clearly
consistent with international law and, in the experience of many Army
interrogators, yielded credible information. As to the need to
introduce evidence obtained by coercive measures, I question whether
there is any guarantee that such evidence would even be truthful since
it is widely accepted that people will say anything to stop pain; and I
also believe that allowing coerced evidence into a trial runs contrary
to our national values and would further erode our standing in the
international community as a nation under the rule of law.
specific trial procedures
27. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
in a letter dated July 10, 2006, and addressed to Chairman John Warner
of the Senate Armed Services Committee and Chairman Arlen Specter of
the Senate Judiciary Committee, a group of retired JAGs state that we
should ``bring accused terrorists to justice in military trials based
on the UCMJ and MCM.'' The letter goes on to say that, in developing
legislation to address the Hamdan ruling, ``it should start from the
premise that the United States already has the best system of military
justice in the world'' but that narrowly targeted amendments to the
UCMJ to accommodate ``specific difficulties in gathering evidence
during the time of war'' would be acceptable. If the current rules are
not adequate, what changes need to be made to those rules?
Ms. Massimino. The current rules for trials based on the UCMJ and
MCM are adequate. The court-martial system was designed to prosecute
prisoners in exactly this type of setting and has a well-established
track record. The burden is on those advocating for change to establish
the necessity of substituted rules.
Ms. Newell Bierman. The claims that the UCMJ is not equipped to
handle the difficulties of trying individuals captured during wartime
are largely overstated. In fact, the UCMJ is designed explicitly to
dispense military justice for conduct during armed conflict, including
the prosecution of prisoners of war who commit abuses during times of
war. Any changes to the UCMJ should be narrowly tailored, limited, and
based on demonstrated necessity.
Mr. Fidell. Whether or not the United States has ``the best system
of military justice in the world'' aspects of it would not, for
example, pass muster under the European Convention on Human Rights--
that system is unarguably a dramatically better model from which to
work than the dusted-off procedures President Roosevelt issued for the
trial of the German saboteurs in 1942, to which the current generation
of military commission rules have been traced. NIMJ is preparing a
revised proposal that would set a due process ``floor,'' exempt
military commissions from some parts of the UCMJ, and afford the
President carefully cabined residual rulemaking authority to depart
from the general court-martial norm.
Mr. Mernin. Fundamentally, the Association believes the rules for
commissions should not depart materially from the UCMJ and Manual for
Courts Martial. We believe that convening a panel of experts would
guarantee that a thorough job of determining necessary circumscribed
departures from the UCMJ would occur in a transparent and nonpartisan
manner. This process would serve the twin goals of establishing a
workable system to prosecute and punish our enemies who have committed
breaches of the law of war, and establishing a system which reaffirms
the United States' role as the world's pre-eminent advocate of the rule
of law and justice. Moreover, it is also essential that the system
crafted is worthy of the American men and women in uniform who will
make it work, whether as prosecutors, defense counsel, or judges.
Dr. Carafano. They should more clearly and explicitly exempt
military commissions that try illegal combatants.
Mr. Katyal. Again, I do not believe that the rules for military
commissions should deviate from the UCMJ rules for courts-martial until
there is empirical evidence to demonstrate that such deviations are
necessary. Please also see my answers to questions 6, 16-20, and 23
above.
Mr. Schlueter. That is very difficult to say. As someone with over
30 years of experience with military justice, I firmly believe that the
system is fair. But I am also struck by the fact that for the first
time in 30 years, those organizations and individuals who once
questioned and challenged its fairness, now find it not only
acceptable, but desirable. I understand that the administration has
proposed a large number of changes to the UCMJ to accommodate military
commissions. That draft should be a good start.
Mr. Silliman. I wholeheartedly endorse the statements of the
retired JAGs contained in their letter. A system for military
commissions, based upon existing jurisdictional authority in Articles
18 and 21 of the UCMJ and employing most of the procedural protections
afforded to our own service personnel under the UCMJ and the Manual for
Courts-Martial, would not only be a proper prosecutorial forum for
trying terrorists but would also be upheld in the courts and applauded
by the global community. If exceptions from those procedural
protections are to be taken, they would probably include a more
flexible standard for the admissibility of evidence (but still
prohibiting evidence acquired through torture or coercion); the
elimination of a formal Article 32 pretrial investigation; a more
streamlined appellate procedure, perhaps eliminating the need for an
Article 66 review in a service court of criminal appeals prior to
review in the U.S. Court of Appeals for the Armed Forces; and perhaps
some modification to the threshold for giving advice of rights under
Article 31(b).
28. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
how, in your view, can Congress best fashion legislation that will
stand up to Supreme Court scrutiny?
Ms. Massimino. The UCMJ and the Manual for Courts Martial already
stand up to Supreme Court scrutiny. As the Supreme Court ruling in
Hamdan requires, they provide a fair process in accordance with Common
Article 3. Attempting to satisfy the requirements of Common Article 3
with an improvised military commissions system is a tall order and one
that the administration has failed twice already to fill. Therefore,
Congress would be best served by sticking with the UCMJ and MCM.
However, to the extent that it deviates from the UCMJ and MCM, Congress
should maintain the court-martial system as the basis for the new
system and only substitute procedures when an imperative need is
demonstrated and the substitution is narrowly tailored to fit that
need.
Ms. Newell Bierman. The Supreme Court laid out a way forward. The
UCMJ and MCM constitute a tried and true system and should serve as the
starting point for any legislation. Any deviations from the UCMJ and
MCM need to be narrowly tailored and carefully crafted to respond to an
identified need.
Mr. Fidell. Our proposal, which is in the course of revision, would
be sustained by the Supreme Court. It would meet Common Article
3(1)(d)'s requirement for ``a regularly constituted court affording all
the judicial guarantees which are recognized as indispensable by
civilized peoples,'' would bar secret evidence and trials from which
the accused was excluded, and would take account of the uniformity
requirement currently found in Article 36(b) of the UCMJ.
Mr. Mernin. Using the UCMJ as a starting point, and departing from
it only to address demonstrable ``situational difficulties,'' would
likely be the best course to take in order to arrive at a workable
system which would survive judicial review.
Dr. Carafano. Congress could fashion such legislation by explicitly
authorizing the procedures set forth in the President's Executive Order
of November 13, 2001 as it attempted to do in the DTA of 2005. The
Court's reason for striking down the use of military tribunals was that
the procedures were insufficiently authorized, including Congress's
attempt to divest Federal courts of jurisdiction over them.
Mr. Katyal. In my view, it is vital that Congress first to do no
harm. No changes to the court-martial system should be made until there
is empirical evidence demonstrating that such deviations are required.
The administration's proposed legislation that was circulated by the
Washington Post 10 days ago, for example, would quickly be invalidated
by courts, and lead again to the terrible prospect of not having any
convictions of detainees in the wake of September 11.
The court-martial system can meet the needs of the government while
protecting our national security interests and fulfilling our
constitutional and international obligations. Importantly, a court-
martial is a decidedly legal proceeding and there is already
substantial law on the books authorizing and governing them. The
Supreme Court has on countless occasions recognized and affirmed such
proceedings--most recently in the Hamdan opinion. Courts-martial
satisfy all the conditions for trials of detainees that the Hamdan
majority found the President's commissions lacking. They would
eliminate the problems of uniformity that the Supreme Court found so
problematic; they would provide assurances of independent proceedings
and review that the commissions sorely lack; and they would satisfy
Common Article 3's requirement of a ``regularly constituted court''--a
requirement that may be difficult, if impossible, to achieve by
patchwork legislation.
Finally, any departures from the UCMJ must be coupled with an anti-
abstention provision, along the lines of the McCain-Feingold campaign
finance legislation. The system needs to be reviewed immediately, not
years after the fact when convictions would have to be reversed and
terrorist defendants potentially set free. Please also see my answer to
question 2, above.
Mr. Schlueter. I do not see the decision in Hamdan as requiring a
massive overhaul of either the UCMJ, MCM, or military commission rules.
There was some indication that the commission rules might have been
approved by the court, had the President complied with Article 36(b),
UCMJ. As noted above, I think Congress should take a minimalist
approach--enact legislation that explicitly grants authority to the
President to convene military commissions and also remove the
uniformity requirement from Article 36.
Mr. Silliman. If Congress accepts the premise that any system for
military commissions should use the UCMJ as the core, excepting such
court-martial procedures as are determined and justified to be
impracticable, then there is no question in my mind that it will
withstand judicial scrutiny. That would entail a minimal amount of
legislative amendments to the Code itself; the rest of the changes
would be made to the rules for courts-martial and military rules of
evidence, integral parts of the Manual for Courts-Martial, an executive
order promulgated by the President. Congress could maintain oversight
of these changes to the MCM through an appropriate reporting
requirement.
29. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
the Hamdan court appeared to be concerned about an accused and his
civilian counsel being excluded from, and precluded from ever learning
what evidence was presented during, any part of the military commission
trial. How should this concern be addressed?
Ms. Massimino. A defendant must have the right to know the evidence
being used against him, to respond to it, and to challenge its
credibility or authenticity. Rule 505 of the MCM provides a method for
the prosecution to use classified evidence without infringing on this
right. See answer to question 23.
Ms. Newell Bierman. This concern is adequately dealt with in Rule
505 of the MCM, dealing with classified evidence. As explained in the
answer to question 23, these rules allow for all kinds of substitute
evidence to be provided in the place of classified evidence. But the
bottom line rule still applies: Whatever substitute version of the
evidence is shared with the accused is the same evidence that is
presented to the factfinder. No one should be convicted on the basis of
evidence that he was never provided and had no opportunity to contest.
Mr. Fidell. Any legislation should put military commissions on a
solid statutory basis and make it clear that the accused and his or her
counsel must (a) have access to all evidence that is presented to the
triers of fact, and (b) be present at all sessions unless they
voluntarily (or through misbehavior) waive that right. The latter right
would be similar to the right applicable to courts-martial under
Article 39(b) of the UCMJ.
Mr. Mernin. Such a situation should not be permitted. As I
testified, the accused must ultimately have access to any evidence
supporting the charges against him which is offered to the court, and
civilian defense counsel with security clearances should have access to
all evidence admitted against the accused and all potentially
exculpatory evidence. UCMJ evidentiary rules accommodate these
fundamental standards.
Dr. Carafano. With regard to illegal combatants, the
administration's rules provide adequate protections, and more than
international law ever required. Congress should simply authorize them.
Mr. Katyal. The accused must be entitled to be present during all
proceedings and the accused must be entitled to see all of the evidence
that the members see. As former Rear Admiral Hutson pointed out,
denying the accused this most basic of rights results in telling him,
basically, ``We know you're guilty. We can't tell you why, but there's
somebody that says you're guilty.'' Denying this right to the accused,
especially in light of the Hamdan majority's mandate, would be
extremely dangerous, unjust, and unwise. As Senator Graham stated in
the August 2 hearing:
``So the question may become for our Nation, if the only way
we can try this terrorist is disclose classified information
and we can't share it with the accused, I would argue don't do
the trial. Just keep him. Because it could come back to haunt
us. I have been in hundreds of military trials. I can assure
you the situation where that's the only evidence to prosecute
somebody is one in a million. We need not define ourselves by
the one in a million.''
Mr. Schlueter. The issue of access by the accused and his attorney
to all proceedings is difficult. But it is one that has addressed the
courts in the past anytime national security information was involved
in the trial. Those rules should be applied to military commissions as
well. The procedural aspects of Military Rules of Evidence 505 and 506
are good starting points for drafting such rules.
Mr. Silliman. This concern only applies, I believe, to an accused
being removed from his own trial when classified and other extremely
sensitive national security information is being offered into evidence.
As discussed in my answer to a previous question (question 23),
Military Rules of Evidence 505 and 506 could be amended to provide for
safeguarding critical national security information to be used by the
government in detainee trials on the question of guilt or innocence,
while still ensuring some measure of authenticity and at least a
minimal level of access by the accused. Such a provision would then
obviate the need to remove the accused from trial proceedings except
when he is disruptive.
30. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell,
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman,
Dr. Carafano suggested in his testimony that to win the war of ideas in
the war on terrorism Congress should essentially ratify the military
commissions that have been overturned by the Supreme Court. I would
suggest that there are some here who believe that the exact opposite is
true: That to win the war of ideas we need to put in place a system
that is based on the UCMJ and that respects Common Article 3, and that
only that way will we show the world that we are truly different from
our enemy in this war. Would the panel care to comment?
Ms. Massimino. How we treat suspected terrorists--including how we
try them--speaks volumes about who we are as a nation, and our
confidence in the institutions and values that set us apart. The
hallmark of the rule of law as applied by civilized nations is a system
that is impartial and that is made up of procedures and rules that are
consistent, predictable, and transparent. Our civilian courts and
military justice systems are the envy of the world--and for good
reason. We have a system that is designed not just to convict those the
government suspects are guilty, but to deliver justice. The Supreme
Court has just reminded us that, even in the face of extraordinary
threats to our security, our traditional values and institutions should
be seen not as liabilities, but as assets--tools in the struggle to
combat terrorism. These values and institutions--in particular here,
the UCMJ and the Geneva Conventions--should again become the lodestar.
Ms. Newell Bierman. These trials will undoubtedly be some of the
most scrutinized trials in the world. It is a chance for the United
States to showcase to the world its respect for the rule of law, its
principles of fair justice and humane treatment, and to win back the
moral high ground. A system based on the UCMJ and MCM that respects the
fair trial standards embodied in Common Article 3 is the right way
forward.
Mr. Fidell. We completely agree with Dr. Carafano that the war of
ideas must not be overlooked. In our view, adhering to our Nation's
high standards of the rule of law, fundamental fairness, and respect
for the individual are better calculated to make progress in the battle
of ideas than creating a third-rate system of justice that will never
gain public confidence here, much less anywhere else.
Mr. Mernin. The war of ideas will be won, in part, by
demonstrating, without hedging, that American justice and values are
not built on words without meaning. Putting in place a system which
provides fundamental guarantees of due process and fairness will
demonstrate to our enemies, to our allies, and to our friends, that the
United States intends to lead the world and remain in the vanguard of
respect for the rule of law and human dignity. The U.S. Military
Academy, in preparing cadets for their role as the next commanders,
requires instruction in military and constitutional law. These young
men and women are training to be leaders in this war--a ``Long War on
Terror,'' as it is now characterized--and we owe them, and all our
troops, support and gratitude. If we take the position that we can
whittle away, for the sake of the moment, bits and pieces of our treaty
obligations--the ``supreme law of the land''--honored in letter and
spirit for 50 years, we send the wrong message to those cadets, our
troops, our enemies, our allies, and to the world. We send a message
that the parsing of words for the sake of expediency trumps experience,
honor, and law. If we slide down this slippery slope, we will be judged
at the bottom by those left standing at the top.
Dr. Carafano. I stand by my original testimony. In addition, giving
illegal combatants the same protections under the Geneva Conventions as
soldiers who abide by the laws of war will only weaken the Conventions
by removing an incentive to join. After all, if a nation or non-state
actor can receive such protections without abiding by the Convention,
why would they ever abide by its rules?
Mr. Katyal. This question, more than any other in the thousands of
words I have read since working on this issue for the past 5 years,
states the precise problem. To answer it, I will quote from what
another brave American, Justice Rutledge, said 60 years ago. In his
dissent in the last significant military commission case (Yamashita v.
Styer (1946)), Justice Rutledge said:
``It is not too early, it is never too early, for the Nation
steadfastly to follow its great constitutional traditions, none
older or more universally protective against unbridled power
than due process of law in the trial and punishment of men,
that is, of all men, whether citizens, aliens, alien enemies or
enemy belligerents. It can become too late.
This long-held attachment marks the great divide between our
enemies and ourselves. Theirs was a philosophy of universal
force. Ours is one of universal law, albeit imperfectly made
flesh of our system and so dwelling among us. Every departure
weakens the tradition, whether it touches the high or the low,
the powerful or the weak, the triumphant or the conquered.''
Gilding over the existing, flawed military commission system, which
the Supreme Court has found illegal and that other countries have found
unconscionable, would dishonor our country's great constitutional
tradition. The right to a fair trial is one of the foundational rights
enshrined in our Constitution, one that has weathered every war this
country has fought. Strict adherence to that tradition, and to the
fundamental principle of rule of law, is what separates us from our
enemies, and what makes America the best country in the world. The rule
of law should not be another victim in the war on terror.
Mr. Schlueter. I do not agree with Dr. Carafano. The due process
protections applicable in Federal, State, and military trials were not
established to demonstrate to anyone that our system is better than any
other system. To do so, suggests that there is an extant body of law
that will appeal to terrorists who have vowed to destroy America
itself. If we are to expand the due process rights available to such
terrorists, it should be for reasons other than public relations. I
have no doubt that if Congress and the President were to try terrorists
by military courts-martial--with all of the rights and protections
available to American servicemembers--that domestic and foreign critics
would still find fault.
Mr. Silliman. I completely agree with your assessment; and I
strongly disagree with Dr. Carafano. We can only win the ``war of
ideas'' by proving to the international community that we are, in
practice as well as rhetoric, a nation under the rule of law.
31. Senator McCain. Mr. Schlueter, how would your proposed two
amendments to the UCMJ be responsive to the Hamdan court's ruling that
detainee trials must adhere to the requirements of Common Article 3 of
the Geneva Conventions?
Mr. Schlueter. My reading of the Hamdan decision is not that the
military commissions must in all circumstances comply with Common
Article 3, which apparently speaks in broad terms. My proposal would
address the new key features in the court's opinion--the authority of
the President to convene commissions and the uniformity requirement in
Article 36(b). According to the Court, Article 3 applies under the
Supremacy Clause of the Constitution (Article VI). But, as with all
treaties, Congress may enact a subsequent statute that would prevail
over the treaty provision. Congress can do that by amending the UCMJ to
recognize, what if any provisions in Article 3, are applicable to
military commissions.
32. Senator McCain. Mr. Schlueter, under your proposal, wouldn't it
be possible and maybe probable for the President to promulgate
procedures that are virtually identical to those set forth in Military
Order No. 1?
Mr. Schlueter. Yes, the President could simply readopt procedures
set out in the existing rules. I doubt that will happen, however.
33. Senator McCain. Mr. Schlueter, how would your proposal achieve
better the goal of avoiding Supreme Court rejection than proposals to
modify the UCMJ to comply with the Hamdan ruling?
Mr. Schlueter. Unlike others, I do not read Hamdan to require that
the UCMJ and the MCM must be the baseline for any further legislation
or changes. My recommendations are intended to: (1) take a modest
approach to reacting to Hamdan; (2) recognize the constitutional role
of the President as commander in chief; (3) recognize the traditional
and respective roles of Congress and the President in promulgating
rules of procedure, as reflected in Article 36; and (4) remove the
uniformity requirement in Article 36, which as far as I know, had never
really been interpreted to apply to military commissions. If that were
true, then the uniformity principle would apply to Provost Courts and
any other military tribunal.
The plurality's approach was more modest than that suggested by
Justice Kennedy in his concurring opinion. He, and not the plurality
and not the dissenters, criticized the President for not applying the
full range of protections available to those being tried. Nor did the
Court say that only Congress can fix the problem.
The key to responding to Hamdan is not necessarily in amending the
UCMJ, but in providing the basic protections to those being tried by
military commissions. That can be accomplished just as easily by
amending the commission rules themselves.
My minimalist approach would not necessarily provide any immunity
against judicial review; but I cannot imagine that a wholesale review
and changes to the UCMJ would be any more immune.
[Whereupon, at 1:40 p.m., the committee adjourned.]
CONTINUE TO RECEIVE TESTIMONY ON THE FUTURE OF MILITARY COMMISSIONS IN
LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD
----------
WEDNESDAY, AUGUST 2, 2006
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 2:20 p.m. in room
SH-216, Hart Senate Office Building, Senator John Warner
(chairman) presiding.
Committee members present: Senators Warner, McCain, Inhofe,
Sessions, Collins, Talent, Chambliss, Graham, Cornyn, Thune,
Levin, Reed, Akaka, E. Benjamin Nelson, Dayton, Bayh, and
Clinton.
Committee staff members present: Charles S. Abell, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: William M. Caniano,
professional staff member; David M. Morriss, counsel; Robert M.
Soofer, professional staff member; and Scott W. Stucky, general
counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Jonathan D. Clark, minority counsel;
Gabriella Eisen, professional staff member; Peter K. Levine,
minority counsel; William G.P. Monahan, minority counsel; and
Michael J. Noblet, staff assistant.
Staff assistants present: Jessica L. Kingston, Benjamin L.
Rubin, and Pendred K. Wilson.
Committee members' assistants present: Richard H. Fontaine,
Jr. and Pablo Chavez, assistants to Senator McCain; John A.
Bonsell, assistant to Senator Inhofe; Mackenzie M. Eaglen,
assistant to Senator Collins; Russell J. Thomasson, assistant
to Senator Cornyn; Mieke Y. Eoyang, assistant to Senator
Kennedy; Frederick M. Downey, assistant to Senator Lieberman;
Elizabeth King, assistant to Senator Reed; Eric Pierce,
assistant to Senator Ben Nelson; Luke Ballman, assistant to
Senator Dayton; Robert J. Ehrich and Elizabeth Brinkerhoff,
assistants to Senator Bayh; and Andrew Shapiro, assistant to
Senator Clinton.
OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner. Good afternoon, ladies and gentlemen. We
apologize for starting a little after 2:00, but we had a vote.
That is the one thing that we have to do here.
The committee meets today to conduct the third in a series
of hearings on the future of military commissions in light of
the Supreme Court decision in Hamdan v. Rumsfeld.
We are privileged to have with us the Attorney General of
the United States, the Honorable Alberto Gonzales; and the
Deputy Secretary of Defense, the Honorable Gordon England. They
are accompanied respectively by Steven Bradbury, acting head of
the Justice Department Office of Legal Counsel, and Daniel
Dell'Orto, Deputy General Counsel of the Department of Defense
(DOD).
In two previous hearings we have had the benefit of
testimony of the Judge Advocates General (JAGs) of the Armed
Forces, retired JAGs, human rights groups, and bar association
and academics who specialize in military law. Today we hear
from the administration on its recommendations for legislation
to create new military commissions--I emphasize, new military
commissions--consistent with the issues raised by the Supreme
Court in the Hamdan decision, both statutory and with respect
to Common Article 3 of the Geneva Conventions.
We have been in regular consultation with Attorney General
Gonzales and Secretary England. We have had excellent
consultation here in the Senate with your respective
departments all along.
We understand that the final draft administration proposal
is still being worked upon, and that is for the good in my
judgment. This is a very important thing. Given that we are
about to go on recess, it is clear that it would be beneficial
for the committee to receive their current status report on
this particular piece of legislation.
Our committee intends to work with the administration
during the August recess, with the strong possibility of
additional hearings by the committee before we mark up a bill
and report it to the bipartisan leadership of the Senate.
I reiterate what I have said before: Congress must get this
right. We must produce legislation that provides for an
effective means of trying those alleged to have violated the
law of war, while at the same time complying with our
obligations under international and domestic law. How we treat
people in these circumstances will affect the credibility of
our country in the eyes of the world.
Thank you.
[The prepared statement of Senator Warner follows:]
Prepared Statement by Senator John Warner
The committee meets today to conduct the third in a series of
hearings on the future of military commissions in light of the Supreme
Court's decision in Hamdan v. Rumsfeld. We are privileged to have with
us the Attorney General of the United States, the Honorable Alberto
Gonzales; and the Deputy Secretary of Defense, the Honorable Gordon
England. They are accompanied, respectively, by Steven Bradbury, acting
head of the Justice Department's Office of Legal Counsel, and Daniel
Dell'Orto, Deputy General Counsel of the Department of Defense.
In two previous hearings, we have had the benefit of the testimony
of the Judge Advocates General (JAGs) of the Armed Forces, retired
JAGs, human rights groups and bar associations, and academics who have
specialized in military law. Today we hear from the administration on
its recommendations for legislation to create new military commissions,
consistent with the issues raised by the Supreme Court in Hamdan, both
statutory and with respect to Common Article 3 of the Geneva
Conventions.
I and other Members of the Senate have been in regular consultation
with the administration. While the final draft of the administration's
proposal is still being worked upon, it is clear that it would be
beneficial to receive an update on its status from our witnesses. Our
committee intends to work with the administration during the August
recess, with the strong possibility of additional hearings before the
committee marks up a bill and reports it to the full Senate.
I reiterate what I have said before: Congress must get this right.
We must produce legislation that provides for an effective means of
trying those alleged to have violated the law of war, while at the same
time complying with our obligations under international and domestic
law. How we treat people in these circumstances will affect the
credibility of our country in the eyes of the world.
Chairman Warner. Senator Levin, I understand that you have
another matter and therefore you will combine your opening
remarks with a question or two. Am I correct on that?
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. I would be happy to do that, but I thought
we should get the statements first from our witnesses, and then
if you would allow me to ask questions first I would appreciate
it.
Chairman Warner. I would be happy to do that.
Senator Levin. Thank you, Mr. Chairman.
First let me thank Attorney General Gonzales and Deputy
Secretary England very much for being here. The Supreme Court's
decision in the Hamdan case struck down the military commission
procedures established by the administration because they did
not meet the standards of the Uniform Code of Military Justice
(UCMJ) or those of the Geneva Conventions. Congress has now
begun the process of determining what needs to be done to
ensure that our system for trying detainees for crimes meets
the standards established by the Supreme Court as the law of
the land.
We started this process where it should begin, with the
military lawyers who are most familiar with the rules for
courts-martial and the history and practice of military
commissions. These officers also understand the practical
importance of our adherence to American values and the rule of
law in the treatment of others. If we torture or mistreat
persons whom we detain on the battlefield or if we proceed to
try detainees without fair procedures, we increase the risk
that our own troops will be subject to similar abuses at the
hands of others.
Today we continue our review by hearing the views of senior
administration officials. Last week a copy of an early draft of
an administration proposal was leaked to the press and has been
widely circulated. This draft has now been posted on the
Washington Post Web site. We understand that this draft is
still evolving, so I will base my questions on the earlier
leaked version of the document. I do not know what else to do.
It is either that or on the evolving version, which apparently
we have had some briefing on, but I think it is wiser to base
questions on what we know was a draft rather than to speculate.
So the draft and the process through which it was developed
will provide some insight into the administration's approach to
this issue.
First, the administration seems to have used the UCMJ as a
starting point for its draft. While there are extensive
departures from the UCMJ without any demonstration of practical
necessity in my judgment, I do welcome the administration's
apparent acknowledgment that the UCMJ is, in fact, the
appropriate starting point for military commission legislation.
As the Supreme Court held in the Hamdan case, the regular
military courts in our system are the courts-martial
established by congressional statutes, and a military
commission can be regularly constituted by the standards of our
military justice system only if some practical need explains
deviation from the courts-martial practice.
Second, the Hamdan court also ruled that ``the rules set
forth in the Manual for Courts-Martial must apply to military
commissions unless impracticable,'' to use their words.
Unfortunately, the administration draft takes just three
sentences to dismiss both the Manual for Courts-Martial and the
Military Rules of Evidence. The draft authorizes the Secretary
of Defense to prescribe procedures, including modes of proof
for trials by commissions. It then provides that ``evidence in
a military commission shall be admissible if the military judge
determines that the evidence is relevant and has probative
value,'' and further ``hearsay evidence shall be admissible in
the discretion of the military judge unless the circumstances
render it unreliable or lacking in probative value.''
That is virtually unchanged from the evidentiary standard
that the Supreme Court rejected in the Hamdan case. There are
undoubtedly parts of the Manual for Courts-Martial and the
Military Rules of Evidence that would be impractical to apply
to military commissions for the criminal trial of detainees. In
accordance with the Supreme Court's ruling, however, these
areas should be identified by exception rather than by a
wholesale departure from all procedures and all rules of
evidence applicable in courts-martial.
Mr. Chairman, I believe our committee should now ask our
military lawyers to systematically review the Manual for
Courts-Martial and the Military Rules of Evidence and make
recommendations as to the areas in which deviations are needed
on the basis of the Supreme Court's test of impracticability.
We already have a Joint Service Committee on Military Justice
which is responsible for reviewing proposed changes to the UCMJ
and the Manual for Courts-Martial, and it would be well-suited
to this new task should our chairman make that decision to
assign that task or request them to undertake it.
Third, we have been told that the administration's working
draft has now been provided to the JAGs of the Military
Services and that some of their comments have already been
incorporated into the draft. This is a considerable improvement
over the manner in which the administration adopted its
previous order on commissions, when, we have been told, none of
the recommendations of the JAGs were adopted. But it still puts
the cart before the horse. Rather than asking the JAGs to
comment on a draft that was prepared by a limited circle of
political appointees, the administration should have allowed
the experts, the military lawyers, to prepare the initial
drafts of the proposal.
Mr. Chairman, regardless of whether the administration will
listen to the concerns of the JAGs on these issues, we should.
So far this committee has addressed this issue in a systematic,
deliberative manner. I commend our chairman for doing so and I
know we are going to continue to do so.
I hope that as soon as we receive a formal proposal from
the administration that we will reconvene the panel from our
first hearing so that those distinguished military officers
will have a full opportunity to provide us their views on the
administration proposal and their own recommendations as to how
we should proceed on this issue.
Finally, the draft on the Washington Post Web site contains
some of the same objectionable language regarding coerced
testimony as the original military order. The draft language
states: ``No otherwise admissible statement obtained through
the use of''--and then there is a word that is blacked out--
``may be received in evidence of the military judge finds that
the circumstances under which the statement was made render it
unreliable or lacking in probative value.''
Given the administration's longstanding position on this
issue, it seems likely--and I will ask the Attorney General
about this--that the word that has been blacked out is
``coercion'' and that this provision is intended to expressly
permit the use of coerced testimony under the circumstances
identified in that draft. If so, the provision leaves the door
open for the introduction of testimony obtained through the use
of techniques such as waterboarding, intimidating use of
military dogs, and so forth, techniques which our top military
lawyers have said are inconsistent with the standards of the
Army Field Manual and Common Article 3 of the Geneva
Conventions.
The use of evidence obtained through such techniques in a
criminal trial would be inconsistent with the Supreme Court's
ruling in the Hamdan case, inconsistent with the requirements
of the Geneva Conventions, inconsistent with our values as
Americans, and not in the best interest of U.S. service men and
women who one day may be captured in combat. If the
administration insists on including this provision in its draft
legislation, I hope that we will reject that language.
Mr. Chairman, we need to develop a workable framework for
the trial of detainees by military commissions consistent with
the ruling of the Supreme Court in Hamdan, and that is what we
are about. As you say, Mr. Chairman, it is important that we
develop a workable framework for the trial of detainees by
military commission. It is important that we be consistent with
the ruling of the Supreme Court, and it is important that we do
it right.
This will be a very difficult endeavor, requiring us to
address a series of controversial issues, such as the use of
classified information, the use of hearsay evidence, the
applicability of Manual for Courts-Martial and the Military
Rules of Evidence, and the definition of substantive offenses
triable by military commissions. I hope we will not open up
other issues, as important as they are, because this task is
difficult enough. The proper treatment of detainees, the role
of Combatant Status Review Tribunals, and habeas corpus rights
of detainees, that are very difficult issues and that were
debated in the context of last year's Detainee Treatment Act
(DTA), need to be addressed, but not, it seems to me, if we are
going to make progress on this critical issue that is before
us.
So I hope that we will avoid that pitfall by keeping our
legislative focus on the issues that we must address, which is
to establish a workable framework for military commissions.
Thank you again, Mr. Chairman, for your position that you
have taken in this matter that we are going to do this thing
thoroughly, properly, and thoughtfully. I think it is the right
way to go.
[The prepared statement of Senator Levin follows:]
Prepared Statement by Senator Carl Levin
The Supreme Court's decision in the Hamdan case struck down the
military commission procedures established by the administration
because they did not meet the standards of the Uniform Code of Military
Justice (UCMJ) or those of the Geneva Conventions. Congress has now
begun the process of determining what needs to be done to ensure that
our system for trying detainees for crimes meets the standards
established by the Supreme Court as the law of the land.
We started this process where it should begin--with the military
lawyers who are most familiar with the rules for courts-martial and the
history and practice of military commissions. These officers also
understand the practical importance of our adherence to American values
and the rule of law in the treatment of others: if we torture or
mistreat persons whom we detain on the battlefield, or if we proceed to
try detainees without fair procedures, we increase the risk that our
own troops will be subject to similar abuses at the hands of others.
Today we continue our review by hearing the views of senior
administration officials--the Attorney General and the Deputy Secretary
of Defense. Last week, a copy of an early draft of an administration
proposal was leaked to the press and has been widely circulated. This
draft has now been posted on the Washington Post Web site. We
understand that this draft is still evolving. In fact, my staff was
briefed last night on a more recent draft of the legislation. Because
this is an internal document that the administration is not yet ready
to release, however, I will base my questions today on the earlier,
leaked version of the document.
Both the draft and the process through which it was developed
provide insight into the administration's approach to this issue.
First, despite the testimony of various administration officials
over the last month that it would be impractical to use the UCMJ as the
basis for draft legislation, the administration seems to have used the
UCMJ as a starting point for its draft. While there are extensive
departures from the UCMJ without any demonstration of practical
necessity, I welcome the administration's apparent acknowledgment that
the UCMJ is in fact the appropriate starting point for military
commission legislation.
As the Supreme Court held in the Hamdan case, `` `[t]he regular
military courts in our system are the courts-martial established by
congressional statutes' '' and ``a military commission `can be
``regularly constituted'' by the standards of our military justice
system only if some practical need explains deviations from court-
martial practice.' ''
Second, the Hamdan Court also ruled that: ``the rules set forth in
the Manual for Courts-Martial must apply to military commissions unless
impracticable.''
Unfortunately, the administration draft takes just three sentences
to dismiss both the Manual for Courts-Martial and the Military Rules of
Evidence. The draft authorizes the Secretary of Defense to prescribe
procedures, including modes of proof for trials by commissions. It then
provides that ``evidence in a military commission shall be admissible
if the military judge determines that the evidence is relevant and has
probative value.'' Moreover, ``Hearsay evidence shall be admissible in
the discretion of the military judge unless the circumstances render it
unreliable or lacking in probative value.'' This is virtually unchanged
from the evidentiary standard that the Supreme Court rejected in the
Hamdan case.
There are undoubtedly parts of the Manual for Courts-Martial and
the Military Rules of Evidence that would be impractical to apply to
military commissions for the criminal trial of detainees. In accordance
with the Supreme Court's ruling, however, these areas should be
identified by exception, rather than by a wholesale departure from all
procedures and all rules of evidence applicable in courts-martial.
Mr. Chairman, our committee should now ask our military lawyers to
systematically review the Manual for Courts-Martial and the Military
Rules of Evidence and make recommendations as to areas in which
deviations are needed on the basis of the Supreme Court's test of
``impracticability.'' We already have a Joint Service Committee on
Military Justice, which is responsible for reviewing proposed changes
to the UCMJ and the Manual for Courts Martial and should be well-suited
to this new task.
Third, we have been told that the administration's working draft
has now been provided to the Judge Advocates General (JAGs) of the
Military Services, and that some of their comments have already been
incorporated into the draft. This is a considerable improvement over
the manner in which the administration adopted its previous military
order on commissions--when, we have been told, none of the
recommendations of the JAGS were adopted--but it still puts the cart
before the horse. Rather than asking the JAGs to comment on a draft
that was prepared by a limited circle of political appointees, the
administration should have allowed the experts--the military lawyers--
to prepare the initial drafts of the proposal.
Mr. Chairman--regardless of whether the administration will listen
to the concerns of the JAGs on these issues, we should. So far, this
committee has addressed this issue in a systematic, deliberative
manner, and we should continue to do so. I hope that as soon as we
receive a formal proposal from the administration, you will reconvene
the panel from our first hearing, so that these distinguished military
officers will have a full opportunity to provide us their views on the
administration proposal and their own recommendations as to how we
should proceed on this issue.
Finally, the draft on the Washington Post Web site contains some of
the same objectionable language regarding coerced testimony as the
original military order. The draft language states: ``No otherwise
admissible statement obtained through the use of [word blacked out] may
be received in evidence if the military judge finds that the
circumstances under which the statement was made render it unreliable
or lacking in probative value.'' Given the administration's
longstanding position on this issue, it seems likely that the word that
has been blacked out is ``coercion'' and that this provision is
intended to expressly permit the use of coerced testimony.
If so, the provision leaves the door open for the introduction of
testimony obtained through the use of techniques such as waterboarding,
stress positions, intimidating use of military dogs, sleep deprivation,
sensory deprivation, forced nudity, and forced wearing of women's
underwear--techniques which our top military lawyers have said are
inconsistent with the standards of the Army Field Manual and Common
Article 3 of the Geneva Conventions. The use of evidence obtained
through such techniques in a criminal trial would be inconsistent with
the Supreme Court's ruling in the Hamdan case, inconsistent with the
requirements of the Geneva Conventions, inconsistent with our values as
Americans, and not in the best interest of U.S. service men and women
who may one day be captured in combat. If the administration insists on
including this provision in its draft legislation, Congress should
soundly reject the proposal.
Mr. Chairman, we need to develop a workable framework for the trial
of detainees by military commission, consistent with the ruling of the
Supreme Court in the Hamdan case. This will be a very difficult
endeavor, requiring us to address a series of controversial issues,
such as the use of classified information, the use of hearsay evidence,
the applicability of the Manual for Courts-Martial and the Military
Rules of Evidence, and the definition of substantive offenses triable
by military commissions.
We will quickly make this task impossible if we open up other
issues at this time--such as the proper treatment of detainees, the
role of Combatant Status Review Tribunals, and the habeas corpus rights
of detainees--that we fought over long and hard last year in the
context of the Detainee Treatment Act. Any one of these issues is
controversial enough that it could sink the entire endeavor of
establishing a workable framework for military commissions. I hope that
we will avoid this pitfall by keeping our legislative focus on the
issues that we must address.
I look forward to the testimony of our witnesses.
Chairman Warner. I want to say that I cannot account for
all of the Web sites and various things that are popping up,
but the purpose of this hearing is to receive the work in
progress and the current status of the thinking of the
administration from the two most qualified people, the Attorney
General and the Deputy Secretary of Defense, to give us the
facts. I do not want to start prejudging this situation based
on what might be in Web sites and other things.
Senator McCain, you have taken the lead on this from the
very beginning. Do you have a few opening comments you would
like to make?
Senator McCain. No, Mr. Chairman. I would like to repeat
what I said at the beginning of this odyssey that we are on,
and that is that we have to look at the best way we can protect
America as our first and foremost priority. I believe we also
should comply as much as possible with the United States
Supreme Court's decision so that we will not have a situation
evolve where we pass legislation that the Supreme Court then
bounces back to us. It is not good for the process, it is not
good for America.
Third of all, I do not think we can ignore in our
discussions and in our deliberations the damage that has been
done to the image of the United States of America because of
allegations, either true or false, about our treatment of
prisoners. If we are in a long struggle, part of that struggle
is a psychological one, and we must remain the Nation that is
above and different from those of our enemies. I think that is
important to keep that in mind as we address this issue in its
specifics.
But the other fact is that we are in a struggle that
engages us in every way and without the moral superiority that
this Nation has enjoyed for a couple of hundred years we could
do great damage to our effort in winning this struggle that we
are engaged in.
I thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator.
Senator Graham, you likewise have taken a lead on this. Do
you have any comments for the opening?
Senator Graham. No, sir.
Chairman Warner. Any other colleagues seeking recognition?
Senator Dayton. Mr. Chairman, I just want to salute Senator
McCain for his comments. I think they are perfectly said.
Chairman Warner. I thank the Senator.
Mr. Attorney General, delighted to have you here today, and
fully recognize that this is an interim report on your part
and, as Senator Levin suggested, we will certainly have
additional hearings, at which time you will be given the
opportunity to come before us.
STATEMENT OF HON. ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE
UNITED STATES
Mr. Gonzales. Thank you, Mr. Chairman, Senator Levin, and
members of the committee. I am pleased to appear today on
behalf of the administration to discuss the elements of
legislation that we believe Congress should put in place to
respond to the Supreme Court's decision in Hamdan v. Rumsfeld.
Let me say a word about process first. As this committee
knows, the administration has been working hard on a
legislative proposal that reflects extensive interagency
deliberations as well as numerous consultations with Members of
Congress. Our deliberations have included a detailed discussion
with members of the JAG Corps, and I have personally met twice
with the JAGs. They have provided multiple rounds of comments
and those comments will be reflected in the legislative package
that we plan to offer for Congress's consideration.
Mr. Chairman, first and foremost, the administration
believes that Congress should respond to Hamdan by providing
statutory authorization for military commissions to try
captured terrorists for violations of the laws of war.
Fundamentally, any legislation needs to preserve flexibility in
the procedures for military commissions while ensuring that
detainees receive a full and fair trial. We believe that
Congress should enact a new Code of Military Commissions
modeled on the courts-martial procedures of the UCMJ, that
would follow immediately after the UCMJ as a new chapter in
title 10 of the U.S. Code.
The UCMJ should constitute the starting point for the new
code. At the same time, the military commission procedures
should be separate from those used to try our own
servicemembers, both because military necessity would not
permit the strict application of all courts-martial procedures
and because there are relevant differences between the
procedures appropriate for trying our servicemembers and those
appropriate for trying the terrorists who seek to destroy us.
Still, in most respects the new Code of Military Commission
can and should track closely the UCMJ.
We would propose that Congress establish a system of
military commissions presided over by military judges, with
commission members drawn from the Armed Forces. The prosecution
and defense counsel would be appointed from the JAG Corps and
the accused may retain a civilian counsel in addition to
military defense counsel. Trial procedures, sentencing, and
appellate review would largely track those currently provided
under the UCMJ.
Because of the specific concerns raised by the Supreme
Court in Hamdan and elsewhere, the new Code of Military
Commissions should depart in significant respects from the
existing military commission procedures. In particular, we
propose that the military judge would preside separate and
apart from the other commission members and make final rulings
at trial on law and evidence, just as in courts-martial or
civilian trials. We would increase the minimum number of
commission members to 5 and require 12 members for prosecutions
seeking the death penalty.
Now, while military commissions will track the UCMJ in many
ways, commission procedures should depart from the UCMJ in
those instances where the UCMJ provisions would be
inappropriate or impractical for use in the trial of unlawful
terrorist combatants.
The UCMJ provides Miranda-type protections for U.S.
military personnel that are broader than the civilian rule and
that could impede or limit evidence obtained during the
interrogation of terrorist detainees. I have not heard anyone
contend that terrorists should be given the Miranda warnings
required by the UCMJ.
The military commission procedures also should not include
the UCMJ's Article 32 investigations, which is a pre-charging
proceeding that is akin to but considerably more protective
than a civilian grand jury. Such a proceeding is unnecessary
before the trial of captured terrorists, who are already
subject to detention under the laws of war.
Because military commissions must try crimes based on
evidence collected everywhere from the battlefields in
Afghanistan to foreign terrorist safe houses, the commission
should permit the introduction of all probative and reliable
evidence, including hearsay evidence. It is imperative that
hearsay evidence be considered because many witnesses are
likely to be foreign nationals, who are not amenable to
process, and other witnesses may be unavailable because of
military necessity, incarceration, injury, or death.
The UCMJ Rules of Evidence also provide for circumstances
where classified evidence must be shared with the accused. I
believe there is broad agreement that in the midst of the
current conflict we must not share with captured terrorists the
highly sensitive intelligence that may be relevant to military
commission proceedings.
A more difficult question is posed, however, as to what is
to be done when that classified evidence constitutes an
essential part of the prosecution's case. In the courts-martial
context, our rules force the prosecution to choose between
disclosing the evidence to the accused or allowing the guilty
to evade prosecution. It is my understanding that other
countries, such as Australia, have established procedures that
allow for the court under tightly defined circumstances to
consider evidence outside the presence of the accused. The
administration and Congress must give careful thought as to how
the balance should be struck for the use of classified
information in the prosecution of terrorists before military
commissions.
Mr. Chairman, the administration also believes that
Congress needs to address the Supreme Court's ruling in Hamdan
that Common Article 3 of the Geneva Conventions applies to our
armed conflict with al Qaeda. The United States has never
before applied Common Article 3 in the context of an armed
conflict with international terrorists. Yet because of the
Court's decision in Hamdan we are now faced with the task of
determining the best way to do just that.
Although many of the provisions of Common Article 3
prohibit actions that are universally condemned, some of its
terms are inherently vague, as this committee already discussed
in its recent hearing on the subject. Common Article 3
prohibits outrages upon personal dignity, a phrase susceptible
of uncertain and unpredictable application. If left undefined,
this provision will create an unacceptable degree of
uncertainty for those who fight to defend us from terrorist
attack, particularly because any violation of Common Article 3
constitutes a Federal crime under the War Crimes Act.
Furthermore, because the Supreme Court has said that courts
must give respectful consideration and considerable weight to
the interpretations of treaties by international tribunals and
other state parties, the meaning of Common Article 3, the
baseline standard that now applies to the conduct of U.S.
personnel in the war on terror, would be informed by the
evolving interpretations of tribunals and governments outside
the United States.
We believe that the standards governing the treatment of
detainees by United States personnel in the war on terror
should be certain and those standards should be defined clearly
by U.S. law, consistent with our international obligations.
One straightforward step that Congress can take to achieve
that result is to define our obligations under Common Article 3
by reference to the U.S. constitutional standard already
adopted by Congress. Last year, after a significant public
debate, Congress adopted the McCain amendment as part of the
DTA. That amendment prohibits cruel, inhumane, or degrading
treatment or punishment, as defined by reference to the
established meaning of our Constitution. Congress rightly
assumed that the enactment of the DTA settled questions about
the baseline standard that would govern the treatment of
detainees.
The administration believes that we owe it to those called
upon to handle detainees in the war on terror to ensure that
any legislation addressing the Common Article 3 issue will
bring clarity and certainty to the War Crimes Act, and the
surest way to achieve this in our view is for Congress to set
forth a definite and clear list of offenses serious enough to
be considered war crimes punishable as violations of Common
Article 3 under 18 U.S.C. 2441.
The difficult issues raised by the Court's pronouncement on
Common Article 3 are ones that the political branches need to
consider carefully as they chart a way forward after Hamdan. I
look forward to discussing these subjects with the committee
this afternoon.
[The prepared statement of Attorney General Gonzales
follows:]
Prepared Statement by Hon. Alberto R. Gonzales
Thank you, Mr. Chairman, Senator Levin, and members of the
committee. I am pleased to appear here today on behalf of the
administration to discuss the elements of legislation that we believe
Congress should put in place to respond to the Supreme Court's decision
in Hamdan v. Rumsfeld.
Before I get into the details of the legislation, let me say a word
about process. As this committee knows, the administration has been
working hard on a legislative proposal that we have developed through
extensive interagency deliberations, as well as numerous consultations
with Members of Congress. Our deliberations have included detailed
discussion with and input from the military lawyers in all branches of
the Armed Services, including the members of the Judge Advocate
General's (JAG) Corps. I have personally met with the JAGs on two
occasions to discuss the elements of the legislative proposal. They and
their staffs have provided multiple rounds of comments on all aspects
of the proposed legislative language, and they have been active
participants in our deliberations and discussions. Their comments have
been heard, and many are reflected in the legislative package that we
plan to offer for Congress's consideration.
military commission procedures
Mr. Chairman, first and foremost, the administration believes that
Congress should respond to the Supreme Court's decision in Hamdan by
providing statutory authorization for military commissions to try
captured terrorists for violations of the laws of war. Fundamentally,
any legislation needs to preserve flexibility in the procedures for
military commissions while ensuring that detainees receive a full and
fair trial.
We believe that Congress should enact a new Code of Military
Commissions, modeled on the court-martial procedures of the Uniform
Code of Military Justice (UCMJ) but adapted for use in the special
context of military commission trials of terrorist unlawful combatants.
To this end, we would propose that Congress create a new chapter for
military commission procedures in title 10 of the U.S. Code, which
would follow immediately after the UCMJ. We have carefully reviewed the
procedures of the UCMJ, and we believe that dozens of articles of the
UCMJ have relevance for military commissions and should be used as the
starting point for developing the new Code of Military Commissions.
At the same time, we believe it is important that the military
commission process for unlawful terrorist unlawful combatants be
separate from the courts-martial process that is used to try our own
servicemembers, both because military necessity would not permit the
strict application of all courts-martial procedures, and because there
are relevant differences between the procedures appropriate for trying
our servicemembers and those appropriate for trying the terrorists who
seek to destroy us.
Still, in most respects, the new Code of Military Commissions can
and should track closely the procedures and structure of the UCMJ. We
would propose that Congress establish a system of military commissions,
presided over by a military judge, with commission members drawn from
the Armed Forces. The prosecution and defense counsel would be
appointed from the JAG Corps, with an opportunity for the appointment
of Justice Department prosecutors and with the ability of the accused
to retain a civilian counsel, in addition to assigned military defense
counsel. Trial procedures, sentencing, and appellate review would
largely track those currently provided under the UCMJ (albeit with
Federal court review in the DC Circuit, as provided for under the
Detainee Treatment Act (DTA) of 2005.)
Because of the specific concerns raised by the Supreme Court in
Hamdan, and because of comments from Members of Congress and from
within the Department of Defense (DOD), we would propose that the new
Code of Military Commissions depart in significant respects from the
existing military commission procedures established by the President in
2001 and 2002.
In particular, we propose that the presiding officer would be a
certified military judge with the traditional authority of a judge to
make final rulings at trial on law and evidence, just as in courts-
martial. As with courts-martial, the military judge would not be a
voting member of the commission.
We would also propose to increase the minimum number of commission
members to 5, from 3, and to require 12 members of the commission for
any case in which the death penalty is sought. As is the case under the
current military commission procedures, and just as in courts-martial,
the Government would bear the burden of proving the accused's guilt
beyond a reasonable doubt, and a conviction would require a vote of
two-thirds of the commission members in a non-death penalty case. As
under the UCMJ, the death penalty would require a unanimous vote of the
commission members present.
In addition, we would propose to create a formal military appellate
process that parallels the appellate process under the UCMJ. We propose
that Congress establish a Court of Military Commission Review within
the DOD to hear appeals on questions of law. We would retain the
judicial review of final military commission judgments in the same
Article III court, the DC Circuit, that currently would hear those
judgments under the DTA. We would propose, however, to give all
convicted detainees an appeal as of right to the DC Circuit, regardless
of the length of their sentence, as opposed to the current system under
the DTA of discretionary review for sentences under 10 years. The
Supreme Court could review the decisions of the DC Circuit through
petitions for certiorari.
Although military commissions will track the UCMJ in many ways, we
also believe that the military commission procedures should depart from
the court-martial procedures in those instances where applying the
UCMJ's provisions would be inappropriate or impractical for use in the
trial of terrorist unlawful combatants.
The UCMJ provides Miranda-type protections for U.S. military
personnel that are broader than the civilian rule and that could impede
or limit the collection of intelligence during the interrogation of
terrorist detainees. I am not aware of anyone who contends that
terrorist unlawful combatants must be given Miranda warnings before
interrogations. The Code of Military Commissions therefore would not
include such Miranda requirements, but at the same time it does provide
a military defense counsel to each accused as soon as charges are
brought and recognizes the accused's privilege against self-
incrimination during the actual commission proceeding.
The military commission procedures also should not include the
UCMJ's Article 32 investigation, which is a pre-charging proceeding
that is akin to, but considerably more protective than, the civilian
grand jury. Such a proceeding is appropriate when applied to U.S.
military personnel, but is unnecessary and inappropriate for the trial
of captured terrorists, who are already subject to detention under the
laws of war.
Because military commissions must try crimes based on evidence
collected everywhere from the battlefields in Afghanistan to foreign
terrorist safe houses, we believe that the Code of Military Commissions
should provide for the introduction of all probative evidence,
including hearsay evidence where such evidence is reliable. Like a
civilian judge, the military judge may exclude such evidence if the
probative value is substantially outweighed by unfair prejudice. But we
believe it is important that the Code of Military Commissions provide a
standard of admissibility that is broader than that applied in court-
martial proceedings.
Court-martial rules of evidence track those in civilian courts,
reflecting the fact that the overwhelming majority of court-martial
prosecutions concern not battlefield conduct, but everyday violations
of the military code of conduct. By contrast, military commissions must
permit the introduction of a broader range of evidence, including
hearsay statements, because many witnesses are likely to be foreign
nationals who are not amenable to process, and other witnesses may be
unavailable because of military necessity, incarceration, injury, or
death.
The UCMJ rules of evidence also provide for circumstances where
classified evidence must be shared with the accused. I believe there is
broad agreement that in the midst of the current conflict, we must not
share with captured terrorists the highly sensitive intelligence that
may be relevant to military commission proceedings. A more difficult
question is posed, however, as to what is to be done when that
classified evidence constitutes an essential part of the prosecution's
case.
In the court-martial context, our rules force the prosecution to
choose between disclosing the evidence to the accused or allowing the
guilty to evade prosecution. It is my understanding that other
countries, such as Australia, have established procedures that allow
for the court, under tightly defined circumstances, to withhold
evidence from the accused that would otherwise be subject to
disclosure. Neither those procedures, nor any procedure under
consideration, would permit ``secret trials'' outside the presence of
the accused. Nonetheless, it may be possible to ensure fair and
accurate commissions proceedings, while protecting our Nation's most
sensitive information from its enemies. The administration and Congress
must give careful thought as to how the balance should be struck for
the prosecution of terrorists before military commissions.
common article 3 of the geneva conventions
Mr. Chairman, the administration also believes that Congress needs
to enact legislation in light of the Supreme Court's ruling in Hamdan
that Common Article 3 of the Geneva Conventions applies to our armed
conflict with al Qaeda. It is fair to say that the United States
military has never before been in a conflict in which it applied Common
Article 3 as the governing detention standard. The military has been
trained to apply the special protections that the Geneva Conventions
apply to regular and lawful combatants who are captured as prisoners of
war. But we do not train specifically and separately to Common Article
3, and the United States has never before applied Common Article 3 in
the context of an armed conflict with international terrorists.
Yet because of the Court's decision in Hamdan, we are now faced
with the task of determining the best way to do just that. Although
many of the provisions of Common Article 3 prohibit actions that are
universally condemned, such as ``murder,'' ``mutilation,'' ``torture,''
and the ``taking of hostages,'' it is undeniable that some of the terms
in Common Article 3 are inherently vague, as this committee already
discussed in its recent hearing on the subject.
For example, Common Article 3 prohibits ``[o]utrages upon personal
dignity, in particular, humiliating and degrading treatment,'' a phrase
that is susceptible of uncertain and unpredictable application. If left
undefined by statute, the application of Common Article 3 will create
an unacceptable degree of uncertainty for those who fight to defend us
from terrorist attack, particularly because any violation of Common
Article 3 constitutes a Federal crime under the War Crimes Act.
Furthermore, the Supreme Court has said that in interpreting a
treaty provision such as Common Article 3, the meaning given to the
treaty language by international tribunals must be accorded
``respectful consideration,'' and the interpretations adopted by other
state parties to the treaty are due ``considerable weight.''
Accordingly, the meaning of Common Article 3--the baseline standard
that now applies to the conduct of U.S. personnel in the war on
terror--would be informed by the evolving interpretations of tribunals
and governments outside the United States.
We believe that the standards governing the treatment of detainees
by United States personnel in the war on terror should be certain, and
that those standards should be defined clearly by U.S. law, consistent
with our international obligations.
Congress can help by defining our obligations under section 1 of
Common Article 3, with the exception of the obligations imposed by 1(b)
and 1(d), by reference to the U.S. constitutional standard already
adopted by Congress in the McCain Amendment, which we believe to be a
reasonable interpretation of the relevant provisions of Common Article
3.
Last year, after a significant public debate on the standard that
should govern the treatment of captured al Qaeda terrorists, Congress
adopted the McCain amendment, part of the DTA. That amendment prohibits
``cruel, inhuman, or degrading treatment or punishment,'' as defined by
reference to the established meaning of our Constitution, for all
detainees held by the United States, regardless of nationality or
geographic location. Indeed, the same provision was used to clarify
similarly vague provisions in another treaty--the Convention Against
Torture. Congress rightly assumed that the enactment of the DTA settled
questions about the baseline standard that would govern the treatment
of detainees by the United States in the war on terror. We view the
standard established by the McCain amendment as consistent with, and a
useful clarification of, our obligations under the relevant provisions
of Common Article 3.
Defining the terms in Common Article 3, however, is not only
relevant in light of our treaty obligations, but is also important
because the War Crimes Act, 18 U.S.C. 2441, makes any violation of
Common Article 3 a felony offense.
The administration believes that we owe it to those called upon to
handle detainees in the war on terror to ensure that any legislation
addressing the Common Article 3 issues created by the Hamdan decision
will bring clarity and certainty to the War Crimes Act. The surest way
to achieve that clarity and certainty, in our view, is for Congress to
set forth a definite and clear list of offenses serious enough to be
considered ``war crimes,'' punishable as violations of Common Article 3
under 18 U.S.C. 2441.
The difficult issues raised by the Court's pronouncement on Common
Article 3 are ones that the political branches need to consider
carefully as they chart a way forward after Hamdan.
judicial review of detainee claims
Finally, Mr. Chairman, the administration believes that any
legislation in this area should also clarify how the judicial review
provisions of the DTA apply. Some have argued that Hamdan makes the DTA
inapplicable to the hundreds of habeas petitions brought by the
Guantanamo detainees to challenge their detention as enemy combatants.
Although we disagree with that reading, we think that the legislation
should make clear that the detainees may not challenge their detention
or trial before a final judgment of a military commission or a final
order of a Combatant Status Review Tribunal. Moreover, we think that,
once such a final judgment or order is in place, the detainees should
be able to raise challenges only as provided for in the DTA itself.
We believe that that was Congress's original intent under the DTA.
We also believe that it makes sense, as in the civilian justice system,
to restrict the accused's ability to pursue appellate remedies until
after the trial has been completed and after the commission has
returned a guilty verdict on one or more charges.
I look forward to discussing these subjects with the committee this
morning.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Mr. Attorney General.
It seems to me to be a statement that is a good way to start
this hearing. You have laid it out, I think with some clarity
here now.
Mr. Gonzales. Thank you, Mr. Chairman.
Chairman Warner. Secretary England.
STATEMENT OF HON. GORDON R. ENGLAND, DEPUTY SECRETARY OF
DEFENSE
Secretary England. Chairman Warner, Senator Levin, members
of the committee: First of all, thanks for the opportunity to
be here. This is indeed a crucial subject. This is also a
critical time for America. We are in a real and a daily war
against terrorist adversaries who are determined to destroy our
way of life and that of our friends and allies. The terrorists
are relentless. They oppose the very notion of freedom and
liberty and they are committed to using every possible means to
achieve their end.
America did not choose this fight and we do not have the
option of walking away. As a Nation, we must be clear in our
thoughts, candid in our words, and rock solid in our resolve.
The security challenges this Nation faces in the wake of
September 11 are both complex and in some respects
fundamentally new. The Supreme Court's Hamdan decision provides
an opportunity for the executive and legislative branches to
work together to solidify a legal framework for the war we are
in and for future wars. The legal framework we construct
together should take the law of war, not domestic civilian
criminal standards of law and order, as its starting point.
I propose the following seven criteria against which any
proposed legislation should be measured.
First, all measures adopted should reflect American values
and standards.
Second, persons detained by the Armed Forces should always
be treated humanely, without exception.
Third, our men and women in uniform must have the ability
to continue to fight and win wars, including this war on
terror. The Nation must maintain the ability to detain and
interrogate suspected terrorists, to continue to detain
dangerous combatants until the cessation of hostilities, and to
gather and protect critical intelligence.
Fourth, war criminals need to be prosecuted and in a full
and fair trial.
Fifth, our soldiers, sailors, airmen, marines, and Coast
Guardsmen need adequate legal protections, as do the civilians
who support them.
Sixth, the rules must be clear and transparent to everyone.
Lastly, we should be mindful of the impact of our
legislation on the perceptions of the international community.
I thank this committee for taking time to thoughtfully
consider this very important set of issues, and I thank you for
your strong, unwavering support for the brave men and women
serving every day at home and abroad to protect and defend this
truly great Nation.
[The prepared statement of Secretary England follows:]
Prepared Statement by Hon. Gordon England
Chairman Warner, Senator Levin, members of the committee, it is an
honor to appear here today with my friends and colleagues, especially
the Honorable Alberto Gonzales.
I do thank this committee for the invitation to meet with you to
discuss the implications of the Supreme Court's Hamdan decision. As we
work together to develop the additional legislation our Nation needs,
let me provide some perspective from the Department of Defense about
the broader national security context for these discussions and
decisions.
This is a critical time for America. We are in a real and deadly
war against terrorist adversaries who are determined to destroy our way
of life--and that of our friends and allies. On September 11, 2001,
terrorists attacked the World Trade Center and the Pentagon, and took
the lives of other heroic Americans on Flight 93. The terrorists killed
3,000 people of 60 different nationalities that day. They would have
killed many more, if they had had the means to do so, and they are
still trying. These terrorists are relentless, they oppose the very
notion of freedom and liberty, and they are committed to using every
possible means to achieve their ends.
America did not choose this fight--and we don't have the option of
walking away. Only if America continues to provide global leadership in
the fight against these terrorists can we succeed.
The security challenges this Nation faces in the wake of September
11, 2001, are both complex and, in some respects, fundamentally new,
and in many ways the Nation is still grappling with how best to address
them.The terrorists our forces detain are not common criminals. At the
same time, they are not lawful enemy combatants--among other things,
they do not fight as members of the Armed Forces of sovereign states,
they do not have a regular command structure, they do not wear
uniforms, they do not carry their arms openly, and they do not obey the
laws of war.
The Supreme Court's Hamdan ruling provides the opportunity for the
executive and legislative branches to work together to solidify a legal
framework for the war we are in, and for future wars.
A major part of America's effort in the war on terror is the
fearless warfighting by our courageous men and women in uniform in Iraq
and Afghanistan, but in fact, Iraq and Afghanistan are only part of a
larger struggle. The perceptions and views of people of all nations are
critical to the success of our campaign against al Qaeda and its
affiliates. People will listen to our words--and watch our actions--and
decide, and their decisions could be very important in tipping the
scales.
We also need to be conscious that any new rules put in place today
may live on for many years to come. Just as the global context has
changed markedly over the last 50 years, we need to consider how well
the rules deemed most applicable today will endure.
It is profoundly important that we come together as a U.S.
Government--that we send a unified signal to the rest of the world
about this Nation's determination, commitment, and resolve to push
forward in the war on terror. We must be clear in our thoughts, candid
in our words, and rock solid in our resolve.
The legal framework we construct together should take the law of
war, not domestic civilian criminal standards of law and order, as its
starting point.
I propose the following seven criteria against which any proposed
legislation should be measured:
All measures adopted should reflect American values and
standards.
Persons detained by the Armed Forces should always be treated
humanely, without exception.
Our men and women in uniform must have the ability to
continue to fight and win wars, including this war on terror.
The Nation must maintain the ability to detain and interrogate
suspected terrorists, to continue to detain dangerous
combatants until the cessation of hostilities, and to gather
and protect critical intelligence.
War criminals need to be prosecuted--in a full and fair
trial.
Our soldiers, sailors, airmen, marines, and coastguardsmen
need adequate legal protections, as do the civilians who
support them.
The rules must be clear and transparent to everyone.
We should be mindful of the impact of our legislation on the
perceptions of the international community.
I thank this committee for taking time to thoughtfully consider
this very important set of issues. I thank you for your strong,
unwavering support for the brave men and women serving every day, at
home and abroad, to protect and defend this truly great Nation.
Chairman Warner. Thank you, Mr. Secretary. I think your
statement is very helpful and we are off to a good start.
I put my first question to you, Secretary England, which is
in reference to the Army Field Manual. It seems to me that that
has some relevance to those of us, both in the administration
and in Congress, that are working towards drawing up this
statute. It would be in the interest of all parties to have
that before we finalize such proposals as we write into law.
Secretary England. Mr. Chairman, we do have an Army Field
Manual today. It is the version of the Army Field Manual I
think that goes all the way back to 1992.
Chairman Warner. I am familiar with that, yes.
Secretary England. We are in the process of frankly
updating that. I believe we are very close. But each time it
seems that something else comes up--we need to consider in this
case, of course, it is the Hamdan decision.
I would expect we would now finalize it when this law is
complete and on the books.
Chairman Warner. You would want the law to be adopted by
Congress before you promulgate the revised edition, is that
your thought?
Secretary England. That is at least my initial thought,
Senator. I guess I have to consider it. But sitting here, it
would seem logical to me, based on where we are today, to
complete this discussion of Common Article 3 and to make sure
we are all in agreement in terms of how we go ahead. That said,
I will tell you we are very close on the field manual. But at
this point that would be my initial reaction. I would be happy
to get back with you and discuss it further, but at least
initially that would seem logical to me, Senator.
Chairman Warner. I think it does require further discussion
and consideration, because I anticipate that at some point in
time--and let us work back from the fact that we are out of
here on the 30th of September, and it is the desire of this
committee, and we are supported by the bipartisan leadership of
the Senate, to get this bill enacted by the Senate and
hopefully over to the House, such that it can become law.
The men and women of the Armed Forces need this. Now, I
will just take this under advisement. I will accept your
statement as it is now and we will discuss this further.
I just wonder what view you might have on that, Attorney
General, the desirability of waiting until we are finished on
this prior to finalizing the revision of the field manual.
Mr. Gonzales. Sir, I am not privy to the process in terms
of the finalization of the Army Field Manual. I can only
imagine, however, that those involved in that process have
likewise been involved in the process of this legislation, and
we have received and are continuing to receive input about what
these procedures for the military commissions should look like,
and we have received and are continuing to receive input with
respect to our obligations under Common Article 3.
So I do not know whether or not we need to have one
completed before the other, quite frankly. I think--and I will
obviously defer to this committee in terms of what you need.
But I am not sure that they are necessarily intertwined in
terms of moving forward.
Chairman Warner. Let us all deliberate on this.
Did you wish to have anything further to say, Secretary
England?
Secretary England. No, sir, except that I did not
understand the relationship between this field manual and this
pending legislation. I guess I still do not understand that
relationship. We are working on the field manual.
Chairman Warner. I understand that.
Secretary England. That was really an independent action
from this legislation. So I am not quite sure how they are
connected. I mean, if they are related then we will definitely
work those in some coherent manner.
Chairman Warner. I think there is a relationship, and we
will discuss this further.
Secretary England. Okay, we will be happy to do that, Mr.
Chairman.
Chairman Warner. Let us turn to the question of the
classified information. The present military commission rules
allow the appointing authority or the presiding officer of a
commission to exclude the accused and his civilian counsel from
access to evidence during proceedings that these officials
decide to close to protect classified information or for other
named reasons.
In your opinion, can a process that passes constitutional
and statutory muster--and that is the bottom line; we have to
pass that. We do not wish to have a Federal court set aside
this law once we put it in action. So I repeat: In your
opinion, can a process that passes constitutional and statutory
muster be constructed without giving the accused and counsel
possessing the necessary clearances access to such material in
some form?
Mr. Gonzales. Of course, Mr. Chairman, we are not proposing
that classified information be denied to cleared counsel. I
think it would be an extraordinary case where classified
information would be used and would not be provided to the
accused. Based upon conversations that have occurred with you
individually and I understand based upon a hearing that
occurred in the Senate Judiciary Committee, I think it is
fairly obvious that this is one of the remaining points of
discussion, major points of discussion, within the
administration, is how to resolve this issue.
I think we all agree that we cannot provide terrorists
access to classified information. So how do we go about moving
forward with the prosecution? Because sure, we have the option
to continue to hold them indefinitely, for the duration of the
hostilities, but we may choose to bring someone to justice and
the classified information may be crucial to that prosecution.
So there are various things that are being discussed with
the administration. We could have, for example, the military
judge make a finding that moving forward without providing the
classified information to the accused is absolutely warranted.
We could have a finding that the military judge--the military
judge could make a finding that substitutes or summaries are
inadequate. We could require the military judge to make a
finding that moving forward without having the accused present
is warranted given the circumstances.
So there are various things I think that we can do, certain
procedures that have to be followed, so that we make this an
extraordinary case. But, Mr. Chairman, it cannot be the case
that in making a decision to move forward with the prosecution
that we have to provide classified information to a terrorist.
So this is an issue that we are wrestling with, there is no
question about that, and I think that this is something we will
value the committee's input.
Chairman Warner. We have not reached a final decision on
how we are going to handle it, but I pointed out I think the
importance of having this statute be able to survive any
subsequent Federal court review process.
Mr. Gonzales. If I could make two final points. Again, the
counsel would have access, cleared counsel would have access to
the information, and there could be a mechanism again where we
could provide either redacted summaries or something as a
substitute to the accused, that would not jeopardize the
national security of our country.
Chairman Warner. On the subject of hearsay evidence, given
the difficulties of locating and obtaining witnesses in cases
of this sort, do you believe that it would be reasonable to
admit hearsay if it were not coerced and in the opinion of a
military judge or other judicial officer there were sufficient
guarantees for its veracity? In your opinion, would the
admission of such evidence raise constitutional questions?
Mr. Gonzales. In my judgment it would be permissible. The
admission of hearsay evidence has been used in other
international tribunals in Yugoslavia and Rwanda. This is a
different kind of conflict. It is an ongoing kind of conflict,
where oftentimes it is hard to verify or hard to have firsthand
access to the witness or the evidence. The witness may be out
of the country and therefore we cannot serve process. For
security reasons we may not want to bring the witness into
Guantanamo. The witness may be dead. The witness may be on the
front line, and do we want to be bringing our soldiers off the
front lines?
So I think that there are very good reasons, practical
reasons, necessary reasons, to deviate from the UCMJ with
respect to the use of hearsay. It is vitally important,
however, that the information be probative and that it be
reliable. These decisions will be made by military judges who
have been trained, and I think we all have great confidence in
their wisdom and judgment.
But I think the use of hearsay is absolutely important in
these kind of proceedings.
Chairman Warner. Thank you very much.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
The Supreme Court in Hamdan held that Common Article 3 of
the Geneva Conventions applies to the conflict with al Qaeda.
Secretary England, on July 7 you issued a memorandum
acknowledging this holding and said that the Supreme Court has
determined that Common Article 3 applies as a matter of law to
the conflict with al Qaeda. The Court found that the military
commissions as constituted by the DOD are not consistent with
Article 3.
Then you went on to say the following, that ``all DOD
personnel adhere to these standards.'' Do you stand by that
memorandum?
Secretary England. Yes, sir, I do.
Senator Levin. Attorney General Gonzales, do you agree with
that memorandum?
Mr. Gonzales. Sir, I cannot admit to having read the entire
thing. But I agree with what you have read, yes, sir.
Senator Levin. Would you agree, in light of the Supreme
Court's ruling, that legislation authorizing the use of the
commissions and procedures for such commissions must be
consistent with the requirements of Common Article 3?
Mr. Gonzales. Yes, sir, I would.
Senator Levin. Mr. Attorney General, do you believe that
the use of testimony which is obtained through techniques such
as waterboarding, stress positions, intimidating use of
military dogs, sleep deprivation, sensory deprivation, and
forced nudity would be consistent with Common Article 3?
Mr. Gonzales. Sir, I think most importantly, I cannot
imagine that such testimony would be reliable, and therefore I
find it unlikely that any military judge would allow such
testimony in his evidence.
Senator Levin. That would be because it is hard for you to
contemplate or conceive of such testimony being consistent with
Common Article 3?
Mr. Gonzales. Sir, it would certainly be--in my judgment,
there would be serious questions regarding the reliability of
such testimony and therefore it should not be admitted and
would not be admitted under the procedures that we are
currently discussing.
Senator Levin. Secretary England, if such procedures were
used against our own soldiers, testimony that was obtained
through the use of those kind of techniques, would you accept
such judgment if it were rendered against one of our troops?
Secretary England. Again, I would concur with the Attorney
General. Hopefully that would not be permissible in a court,
Senator Levin, so hopefully it would not be used against them.
Senator Levin. In terms of the rule of evidence, Mr.
Attorney General, Justice Kennedy assessed that it be feasible
to apply most, if not all, of the conventional military
evidence rules and procedures. Would you agree that most at
least of the conventional military evidence rules and
procedures are feasible for use in these commissions?
Mr. Gonzales. Certainly, sir. First of all, let me make one
observation. I think there is a difference of opinion about how
to read some of these opinions. I think what the Court was
saying is that if the President wants to deviate, wants to use
procedures inconsistent, that are not uniform with the UCMJ,
then he has to have practical reasons for doing so.
The UCMJ is a creature of Congress. If Congress wants to
change a procedure, I think Congress has the authority under
the Constitution to do that.
I am sorry, Senator, I forgot your question and I
apologize.
Senator Levin. Do you believe it would be feasible, the way
Justice Kennedy uses the word ``practicability,'' for most if
not all, let us say most, of the conventional military
everybody rules and procedures to be followed in commissions?
Mr. Gonzales. Again, Senator, without going through an
itemized list of the procedures or rules that you are referring
to, the objective that we would hope to achieve is the ability
to get into evidence information that may be, quite frankly,
not admissible in the UCMJ, not admissible in our criminal
courts, because we are fighting a new kind of war and we are
talking about information that may be much more difficult to
obtain.
So again, that would be our objective, and obviously we are
willing to sit down, would be happy to sit down with you to
talk about specific procedures.
Senator Levin. We were told by I think one of our
colleagues a week or so ago that there is a list of items in
the rules of evidence which are not practical to be followed.
Is there such a list that has already been created? Do either
of you know?
Mr. Gonzales. I am not aware of such a list, Senator. But I
do know that, obviously, we have looked very hard at the UCMJ,
to look to see what makes sense, what continues to make sense
in fighting, bringing to justice al Qaeda, and what things
should change in order to successfully prosecute----
Senator Levin. But is there a list of items?
Mr. Gonzales. Sir, I am not aware of a specific list that
you are referring to.
Senator Levin. I think it was referred to here by one of
our colleagues. Secretary England, are you familiar with the
list?
Secretary England. No, sir, I am not.
Senator Levin. If you could check it out, if there is such
a list, could you share it with us?
Mr. Gonzales. Sir, there may be a list----
Senator Levin. Would you share it with us?
Mr. Gonzales. I will be happy to see what we can do, sir.
Senator Levin. Attorney General Gonzales, in your prepared
statement you say that military commissions must permit the
introduction of a broader range of evidence, including hearsay
statements, because many witnesses are likely to be foreign
nationals who are not amenable to process, and other witnesses
may be unavailable because of military necessity,
incarceration, injury, or death. Would you agree that
legislation should allow or require the presence of a witness
if that witness is available, instead of using hearsay?
Mr. Gonzales. Sir, it depends on what you mean, if the
witness is available.
Senator Levin. You gave examples of, you know, witnesses
may not be available. You talk about incarceration. Say
incarceration is in our jail. Should that person be presented?
Mr. Gonzales. I think that would be an instance where I
think it would be more difficult certainly to argue this person
is not available. I am talking about someone who is in a
foreign country and we cannot reach.
Senator Levin. So that you would prefer the presence of a
witness to hearsay?
Mr. Gonzales. Absolutely, sir. But again, if it means we
take one of our soldiers off the front lines, I question
whether or not that is the right approach that this Congress
should be considering.
Senator Levin. My time is up. Thank you very much, both of
you.
Chairman Warner. Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
As I have said before, I respect the judgment of you as
chairman and the majority members of this committee to hold
these hearings, although my feeling is it is premature and we
should not even be having this hearing today. Senator Levin in
his opening remarks referred to information that we are working
on as a work in progress or leaked information. I would prefer
to have something in front of me that conforms to the successes
that we have had in the commissions and tweaked to take care of
the problem with the United States Supreme Court.
So I really do not have any questions for you. I just would
like to have you keep in mind as you continue with this, as one
member of this committee who does not believe we should be
doing this, and yet I realize we have to come up with
something, that you keep in mind that my wishes would be that
we want to make sure that the President is able to effectively
and successfully execute this next generation international
war.
I want to equip and protect our military as it carries out
the war. I want to enact legislation that is designed to help
us win. I want terrorists destroyed and locked up for good.
Senator Warner brought up something on the courts of the
world in a previous hearing. I agree with that. He said that: I
do not trust our national interests and security in the hands
of some of these national courts.
I am interested in terms of the attorney-client privileges,
that we want to make sure that we have everything in place here
in Congress to make sure that the attorney-client privileges
are not given to the detainees, at least not to the extent that
they be to American citizens.
As far as the right to trial of terrorists, I know the UCMJ
Article 10 requires immediate steps to be taken to charge and
try detainees and, if not, release them. On the other hand, we
know that the third Geneva Convention allows countries to hold
prisoners of war (POWs) until the end of the conflict and it
does not require a trial. I kind of agree to something that
Senator Clinton said during the last hearing. She said, hey, we
can just hold them; we do not have to try them.
The right to classified information, I just feel that I
still have to be convinced that the terrorists will truly be
prevented from seeing or hearing classified information. I
think you made that pretty clear in your opening remarks, both
of you. But I concur in that.
So I guess in summary, I just think that if we would take
what I think has been working well up to now, put that down,
figure out a way to offset the objections that came in the
Supreme Court ruling, and get on with this thing.
Thank you, Mr. Chairman.
Chairman Warner. Senator Dayton.
Senator Dayton. Thank you, Mr. Chairman.
Mr. Attorney General, in your written statement, on page 7,
you say, ``It is fair to say that the United States military
has never before been in a conflict in which it applied Common
Article 3 as the governing detention standard''?
Mr. Gonzales. Against international terrorists.
Senator Dayton. That is not what your statement says, sir.
Mr. Gonzales. That is my statement, sir.
Senator Dayton. All right. So now the Supreme Court's
ruling, do you concur, extends that requirement?
Mr. Gonzales. Sir, I believe the Supreme Court has told us
that Common Article 3 does apply to the United States conflict
with al Qaeda, and now Congress and the President need to
decide, what does that mean for the United States moving
forward. I happen to believe, as I indicated in my opening
remarks, that there is a degree of uncertainty because of some
of the language in Common Article 3. I personally feel that we
have an obligation, for those folks who are fighting for
America, to try to eliminate that uncertainty as much as we
can.
One way to do that is to define what our obligations are
under Common Article 3, by tying it to a U.S. constitutional
standard, which was recognized by Congress in connection with
the McCain amendment and the DTA. So that is the proposal of
the administration.
Senator Dayton. Secretary England, your directive that you
issued on July 7 of this year, summarizing here, confirms DOD's
obligation to comply with Common Article 3. It makes clear that
DOD policies, directives, executive orders, and doctrine
already comply with the standards of Common Article 3.
When the JAGs of the Armed Forces were asked about this
directive at one of our hearings on July 13, Admiral McPherson
stated, ``It created no new requirements for us. We have been
training to and operating under that standard for a long, long
time.'' General Romig stated: ``We train to it. We always
have.''
Is that an accurate reflection of both your directive and
your understanding of prior training and procedures?
Secretary England. Senator, yes, it is. The fact is in my
July 7 letter I had commented that it was my understanding
that, aside from the military commission procedures, that all
the orders, policies, directives were already in compliance
with Common Article 3. I then asked everyone throughout the DOD
to look at their own procedures, policies, et cetera that they
were implementing and to provide an answer back to the DOD to
reaffirm that they were indeed in compliance with Common
Article 3.
At this point we have had responses from perhaps three-
quarters of all the entities within the DOD and they have all
complied in the affirmative, and I expect that the rest of the
DOD will also reply in the affirmative. But we have not heard
back from everybody at this time, Senator.
Mr. Gonzales. Senator, may I add something if you do not
mind?
Senator Dayton. Yes, sir.
Mr. Gonzales. It is my understanding--and obviously the
Deputy Secretary would know much better than I--but reading the
transcript when the JAGs were up before this committee, I think
they all said: We train to Geneva. They did not say that they
train to Common Article 3. They said they train to the
standards of Geneva, which are higher than Common Article 3. I
believe at least one of the JAGs responded when asked, are
there any manuals or booklets or anything relating to Common
Article 3, the answer was no because they do not train to
Common Article 3. I think they train to something higher.
So when you ask them, what are your obligations, what is
the standard under Common Article 3, I do not think they can
give you an answer.
Senator Dayton. Sir, if they train to a higher standard,
then all the better, it seems to me, and I am glad to clarify
that; also to clarify your written statement here, because I
just was very surprised that you would say that we have never
before been in a conflict in which it applied, the United
States military, Common Article 3 as the governing detention
standard, including conflicts against irregular forces such as
the Viet Cong and those in Somalia and other places. So I think
that is an important clarification. I thank you for that.
Mr. Gonzales. Thank you for the opportunity.
Senator Dayton. Thank you.
May I ask you also, Mr. Attorney General, in your----
Chairman Warner. Let me interrupt. Have you had sufficient
opportunity to correct what you feel is an omission in that
statement?
Mr. Gonzales. I have. Thank you.
Chairman Warner. Fine.
Mr. Gonzales. Thank you, Mr. Chairman.
Senator Dayton. Mr. Attorney General, in your testimony you
stated here, if I am quoting you correctly, that you do not
want to allow the accused to escape prosecution. I would
certainly concur with that statement. We were also told--and I
am not an attorney, so forgive me here, but the JAGs told us
that even if somebody for any reason cannot be prosecuted, they
can be detained indefinitely until the cessation of
hostilities. That is explicitly provided for in the Geneva
Convention and that is a standard practice elsewhere.
So I just wanted to clarify because I think, not yourself,
sir, but others around this subject have created a false
impression that if these individuals cannot be prosecuted then
they are going to be released back to their countries or into
the general population.
Mr. Gonzales. That is an excellent point, Senator. This was
again another issue that was raised when the JAGs were last
here. I think Senator Graham was the one that actually pointed
it out in connection with an exchange with Senator Clinton.
Clearly, we can detain enemy combatants for the duration of
the hostilities, and if we choose to try them that is great. If
we do not choose to try them, we can continue to hold them.
Senator Dayton. You are correct, sir. I should have
properly credited my colleague Senator Clinton for pointing
that out. It brings up the old adage that if you take it from
one person it is plagiarism; from many persons, it is research.
So I am glad you clarified that.
There is an article in last Friday's Washington Post that
leads off: ``An obscure law approved by a Republican-controlled
Congress a decade ago has made the Bush administration nervous
that officials and troops involved in handling detainee matters
might be accused of committing war crimes and prosecuted at
some point in U.S. courts. Senior officials have responded by
drafting legislation that would grant U.S. personnel involved
in the terrorism fight new protections against prosecution for
past violations of the War Crimes Act of 1996. The law
criminalizes violations of the Geneva Conventions governing
conduct in war.''
Is that part of your formal proposal to Congress in this
matter? Is that going to be made part of this proposal?
Mr. Gonzales. It will be made part of the proposal. I think
here we have agreement with the JAGs which that there should be
certainty. If we are talking about prosecution for war crimes,
there should be certainty and the legislation should include a
specific list of offenses so everyone knows what kinds of
actions would in fact result in prosecution under the War
Crimes Act.
Senator Dayton. But as I understand, if this article is
correct, you are talking about a retroactive immunity provided
for prior possible violations committed.
Mr. Gonzales. Senator, that is certainly something that is
being considered, again. That is not inconsistent with what is
already in the DTA when it talks about providing a good faith
defense for those who have relied upon orders or opinions. It
seems to us that it is appropriate for Congress to consider
whether or not to provide additional protections for those who
have relied in good faith upon decisions made by their
superiors. That is something obviously that I think Congress
should consider.
Senator Dayton. My time has expired. Thank you, Mr.
Chairman.
Chairman Warner. Thank you very much.
Senator McCain.
Senator McCain. Thank you, Mr. Chairman.
I want to thank the witnesses for being here and I want to
thank them for literally thousands of hours of work that has
been done by them and their staffs in trying to fix the
problems that exist and comply with the Supreme Court decision.
I appreciate very much their efforts.
Secretary England, it was 8 months ago that we passed the
law requiring for interrogation techniques to be included in
the Army Field Manual. It is time we got that done, Mr.
Secretary. I know we have come close on several occasions. It
is not right to not comply with the law for 8 months which
specifically says that interrogation techniques have to be
included in the Army Field Manual.
Second of all, it is a disservice to the men and women in
the field who are trying to do the job. They should have
specific instructions. It was the judgment of Congress and
signed by the President that we should do that. Now, I hope
that I can--and we have been working with you, and I hope that
you will be able to accomplish this sooner rather than later.
Can we anticipate that?
Secretary England. Yes, you can, Senator. In the meantime,
we have gone back to the prior field manual. So we are
definitely in compliance today with that field manual. But we
did want to expand. You are absolutely right, we do need to do
that, and we will work to bring that to a conclusion, and we
will work with you, sir.
Senator McCain. Thank you. I hope we can do that as soon as
possible, 8 months I think is a sufficient period of time.
Mr. Attorney General, I respectfully disagree with your
testimony where you say we do not train specifically and
separately to Common Article 3 and the United States has never
before applied Common Article 3. I was present at that hearing
and the question that was asked of the JAGs--and I would like
to point out again for the record, the reason why we rely on
the JAGs is because they are the military individuals in
uniform who have been practicing the UCMJ and these laws and
they are the ones that are going to be required to carry out
whatever legislation we pass.
We admit they are not all perfect. We have Senator Graham
on this committee to prove that. [Laughter.]
But the fact is we do rely on them to a great degree.
Mr. Attorney General, the JAGs were asked about Common
Article 3, and I quote Admiral McPherson. He said: ``It created
no new requirements for us.'' He said: ``We have been training
to and operating under that standard for a long, long time.''
General Romig said: ``We train to it. We always have.'' I am
just glad to see that we are taking credit for what we do now.
I have had conversations where they say they are training to
Common Article 3.
So I hope you will engage them in some dialogue so we can
clear up your statement here. Please respond, sir.
Mr. Gonzales. Sir, I may be mistaken, but whether or not I
am mistaken about the previous testimony, I do know that they
believe, at least from them telling me, we need clarification
about what our obligations are under Common Article 3. They may
be training to Common Article 3, but they believe that it would
be wise to have additional clarification about what that means.
Senator McCain. I do not want to parse with you, but here
is a quote from the hearing: ``General Black, do you believe
that Deputy Secretary England did the right thing in light of
the Supreme Court decision in issuing a directive for DOD to
adhere to Common Article 3, and in so doing does that impair
our ability to wage the war on terror?'' General Black: ``I do
agree with the reinforcement of the message that Common Article
3 is the baseline standard, and I would say that, at least in
the United States Army and I am confident in the other
Services, we have been training to that standard and living to
that standard since the beginning of our Army. We continue to
do so.''
Admiral McPherson: ``It created no new requirements for us.
As General Black had said, we have been training to and
operating.''
They were pretty specific about it, and I have had
conversations with them. So we may have a difference of opinion
that I am sure we can get----
Mr. Gonzales. Sir, I think what is important again is I
think that--there is--perhaps I am mistaken and I will admit to
that. But again, the important point I believe is that
nonetheless they believe we need clarification as to what
Common Article 3 requires.
Senator McCain. Thank you.
A draft of the proposal that we have been all referring to
that is on various Web sites, et cetera, indicates that
statements obtained by the use of torture as defined in Title
18 would not be admissible in a military commission trial of an
accused terrorist. Mr. Attorney General, do you believe that
statements obtained through illegal inhumane treatment should
be admissible?
Mr. Gonzales. Senator, again, I will say this. The concern
that I would have about such a prohibition is what does it
mean, how do you define it. If we could all reach an agreement
about the definition of cruel, inhumane, and degrading
treatment, then perhaps I could give you an answer.
I can foresee a situation where, depending on the
definition, I would say no, it should not be admitted. But
depending on your definition of something that is degrading,
such as insults or something like that, I would say that
information should still come in.
Senator McCain. I think that if you practice illegal,
inhumane treatment and allow that to be admissible in court,
that would be a radical departure from any practice that this
Nation----
Mr. Gonzales. Sir, I do not believe that we are currently
contemplating that occurring. I do not believe that that would
be part of what the administration is considering.
Senator McCain. I might add that the JAGs this morning
testified before the Senate Judiciary Committee that coerced
testimony should not be admissible. How do you feel about that?
Mr. Gonzales. Sir, again our current thinking about it is
that coerced testimony would not come in if it was unreliable
and not probative. Again, this would be a judgment made by the
military judge, again certified, a certified military judge,
and it would be quite consistent with what we already do with
respect to Combatant Status Review Tribunals. This was
reflected in the DTA, that evidence that was coerced could be
considered and is being considered so long as it is reliable
and probative.
Senator McCain. I assume that the Department of Justice
(DOJ) has produced their analysis of the interrogation
techniques permitted under the DTA. Is that true?
Mr. Gonzales. We have provided legal advice, yes, sir.
Senator McCain. But in your statement you want Congress to
do that?
Mr. Gonzales. I am sorry, Senator?
Senator McCain. In your statement, ``Congress can help by
defining our obligations under section 1 of Common Article 3.''
Mr. Gonzales. Clearly, sir, I think it would be extremely
helpful to have Congress, with the President, define what our
obligations are under Common Article 3. It is quite customary
for the United States Congress through implementing legislation
to provide clarity to terms that are inherently vague in a
treaty, and so this would be another example where I think that
makes sense.
Senator McCain. On this issue of inhumane treatment, I
think we are going to--my time has long ago expired--have an
extended discussion about that aspect of this issue, Mr.
Attorney General. I want to thank both you and Secretary
England for the hard work you have done on this issue.
I thank you, Mr. Chairman. I did mention to Secretary
England that I hope that we could get the field manual done,
since it has been 8 months since we passed the law.
Secretary England. Mr. Chairman, I responded affirmatively.
Chairman Warner. Good. I just wanted to make the record
reflect that.
Secretary England. Yes, sir.
Chairman Warner. Senator Clinton.
Senator Clinton. Thank you, Mr. Chairman.
Welcome, Attorney General Gonzales, Secretary England.
Secretary England, I appreciate very much your being here
because I think it is important, and I assume you agree, to
have our civilian leadership testify before this committee.
Secretary England. Yes, I do.
Senator Clinton. Secretary England, I am not sure you are
aware, but the leadership of this committee, Chairman Warner,
formally invited Secretary Rumsfeld to appear before us in an
open hearing tomorrow alongside General Pace and General
Abizaid because of the pressing importance of the issue to be
discussed, namely Iraq, Afghanistan, the Middle East, our
country's policies affecting each of those areas.
Unfortunately, Secretary Rumsfeld has declined to do so. He
has instead opted to appear only in private settings. I
understand yesterday he appeared behind closed doors with the
Republican Senators. I am told tomorrow he will be appearing,
again behind closed doors, with all Senators.
But I am concerned, Mr. Secretary, because I think that
this committee and the American public deserve to hear from the
Secretary of Defense. We are going to be out in our States for
the recess. Obviously these matters are much on the minds of
our constituents, and I would appreciate your conveying the
concern that I and certainly the leadership which invited the
Secretary to be here have with his inability to schedule an
appearance before this committee to discuss the most important
issues facing our country.
I appreciate your agreement that it is important to have
our civilian leadership appear and obviously we will look
forward to having our military leadership tomorrow. But I think
it is hard to understand why the Secretary would not appear in
public before this committee, answer our questions, answer the
questions that are on the minds of our constituents.
Chairman Warner. If you would yield, Senator, on my time,
not to take away from yours. You are accurate, Senator Levin
and I did, as we customary do, wrote the Secretary, as well as
the Chairman of the Joint Chiefs and General Abizaid. The
Secretary made a special effort to get General Abizaid over
here such that he could appear before the committee.
It was the intention of myself as chairman that tomorrow's
very important hearing focus on the military operations being
conducted in Iraq and Afghanistan and the impact of other
military operations by other countries in the theater of
Israel, Lebanon, and Palestine.
I discussed with the Secretary and at no time did he refuse
to come up here. I simply had to coordinate this with the
leadership of the Senate, most importantly my leader, and he
felt it would be desirable for the whole Senate to have a panel
consisting of the Secretaries of State, Defense, Chairman of
the Joint Chiefs, and General Abizaid. Given that option, the
decision was made that we would do that one as opposed to both,
given the Secretary's schedule.
Senator Clinton. Mr. Chairman, I appreciate the
explanation. I think it is abundantly clear, however, to the
members of this committee, as it is to countless Americans,
that the Secretary has been a very involved manager in the
military decisionmaking that has gone on in the last 5 years,
and in fact in recent publications there is quite a great deal
of detail as to the Secretary's decisionmaking, one might even
say interference, second-guessing, overruling the military
leadership of our country.
I, for one, am deeply disturbed at the failures, the
constant, consistent failures of strategy with respect to Iraq,
Afghanistan, and elsewhere. I do not think that those failures
can be appropriately attributed to our military leadership. So
although the Secretary finds time to address the Republican
Senators, although he finds time to address us behind closed
doors, I think the American people deserve to see the principal
decisionmaker when it comes to these matters that are putting
our young men and women at risk. More than 2,500 of them have
lost their lives, and this Secretary of Defense I think owes
the American people more than he is providing.
So I appreciate the invitation that you extended, as is
your wont. You worked very hard, I know, to create the
environment in which we would have the opportunity to question
the Secretary. Unfortunately, he chose only to make himself
available to us behind closed doors, out of view of the public,
the press, our constituents, our military, and their families.
I think that is unfortunate.
Chairman Warner. I would only add that we have under
consideration a press conference following his appearance
before the Senators tomorrow; and further, we have under
discussion as soon as the Senate returns in September an
overall hearing on many of the issues which the distinguished
Senator from New York raises.
Senator Clinton. I thank you, Mr. Chairman.
Attorney General Gonzales, I want to follow up on the line
of questioning from Senator McCain, because I am frankly
confused. You have testified with respect to Common Article 3,
and I think we have clarified that perhaps your statement was
not fully understood, because you stated the U.S. military had
never before been in a conflict in which it applied Common
Article 3 as the governing detention standard.
You acknowledge, however, that we have frequently applied
the higher standard of the Geneva Conventions to regular and
lawful combatants who are captured as prisoners of war, and in
fact you agree with the JAGs who appeared before us that that
is the standard that our military trains to. Now, why not then
apply the higher standard? Why go seeking another standard?
Apply the standard to which we are already training our troops,
rather than trying to come up with a different, perhaps even
lower, standard that would provide for less protective
treatment of detainees.
Mr. Gonzales. Senator, that is certainly a policy decision
that one could adopt. The Court, however, did not say that all
of the protections of Geneva apply to our conflict with al
Qaeda. The Court simply said that Common Article 3 applies to
our conflict with al Qaeda. That is the problem or issue or
challenge that has been created as a result of the Hamdan
decision, and that is what we are trying to do in this
legislation, is trying to address that particular issue that
has been created as a result of that decision.
Senator Clinton. Do you anticipate that the legislation
will include United States citizens as enemy combatants?
Mr. Gonzales. No, ma'am. First of all with respect to the
procedures under Military Commission Order 1, there was never
any question that it would not apply to trials of American
citizens. I can say with confidence that there is agreement
within the administration that the commission procedures that
we would have Congress consider would not relate to American
citizens.
Senator Clinton. Now, I know that we keep coming back to
this distinction that seems to be at the heart of the
disagreement over the treatment of these people, whatever we
call them. Some in the administration as I understand it have
argued that there should be a distinction between unlawful
enemy combatants, those who act in violation of the laws and
customs of war, and so-called lawful enemy combatants, who
might be, for example, full members of the regular Armed Forces
of a state party.
How do those categories, the lawful enemy combatant, differ
from what is commonly known as prisoners of war? Is there a
difference between a lawful enemy combatant and a prisoner of
war?
Mr. Gonzales. Yes, Senator, there is a difference. I think
if you are a prisoner of war you get the protections under the
Geneva Convention that we would normally think of with respect
to the Geneva Convention. Our soldiers are entitled to those
protections because they fight according to the laws of war.
They carry weapons openly, they wear uniforms, they operate
under a command structure. So they would be entitled to all of
the protections under the Geneva Convention.
But the Geneva Convention is a treaty between state parties
and, for example, the President made a determination that in
our conflict with al Qaeda the requirements of the Geneva
Conventions would not apply because al Qaeda is not a signatory
party to the Geneva Convention, and therefore they would not be
entitled to all of the protections of the Geneva Convention.
However, the President made a decision that nonetheless they
would be treated humanely, consistent with the principles of
the Geneva Convention.
The President also made a determination that, with respect
to the Taliban, Afghanistan was a signatory to the Geneva
Convention. However, because they did not fight according to
the requirements of the Geneva Convention, they too would not
be afforded the protections of prisoners of war under the
Geneva Convention.
Senator Clinton. Just to finish, you would then make the
argument that during the Vietnam War we would have treated a
North Vietnamese prisoner different from a Viet Cong prisoner?
Mr. Gonzales. I would hesitate to answer that question. It
is conceivable, given their status. My recollection about the
governing or ruling government in that country makes it
difficult for me to answer that question. But it is
conceivable, yes, ma'am.
Senator Clinton. Thank you.
Chairman Warner. I would like to invite Senator McCain to
address that question.
Senator McCain. We did not treat them differently.
Chairman Warner. Thank you, Senator.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
This is a very interesting area of the law and I think it
is important we go over it, because I was the one asking the
questions of the JAGs of what you are trained to. I will try
the best I can, and, please, the legal people here that know
this better than I do, just chime in if I get it wrong. But
what we train our folks to do is when they capture someone on
the battlefield that they do not become a military lawyer, they
are just a soldier. What we tell everybody in uniform, that if
you capture somebody apply POW, Geneva Convention standards to
the captive.
Is that correct?
Mr. Gonzales. Yes, sir.
Senator Graham. That is higher than Common Article 3. Part
of the POW Geneva Convention standards that Senator McCain
probably knows better than anyone else is a reporting
requirement. If you are a lawful combatant--and Mr. Attorney
General, I think I disagree with your answer to Senator
Clinton. A lawful combatant is a POW.
One of the things that we have tried to ensure in the
Geneva Convention is as soon as someone is captured, the host
country has an obligation to inform the international community
that that prisoner has been captured and their whereabouts and
their physical condition. I do not know how Senator McCain's
family found out about him being captured, but everybody in his
situation, the North Vietnamese were not exactly the best
people to use as a model here when it comes to Geneva
Convention compliance. But eventually we were informed about
who was in their capture.
The problem we have as a Nation, if you capture Sheik
Mohamed do we want to tell the world within 48 hours we have
him? I would argue that we would not, because it might
compromise our war operations.
I think what the JAGs were telling us is that from the
soldier's point of view, do not confuse them. Saddam Hussein
was treated as a POW. If we caught bin Laden tomorrow, if a
Marine unit ran into bin Laden tomorrow, my advice to them
would be to treat him as a POW.
However, I do not believe that bin Laden deserves the
status of POW under Common Article 3. Common Article 3 applies
to all four sections of the Geneva Convention. Common Article 3
says this is the minimum standard we will apply to a person in
your capture, regardless of their status. So I would argue, Mr.
Chairman, that there is a significant distinction between a
lawful combatant and an unlawful combatant and our law needs to
reflect that for national security purposes.
But I would also like to associate myself with Senator
McCain: How we treat people is about us. Even if you are an
enemy combatant, unlawful irregular enemy combatant, I think
the McCain amendment is the standard which we should adhere to,
because it is about us, not them.
The problem we have is not the soldier on the front line
who captures Osama bin Laden. It is that when you turn them
over to the Central Intelligence Agency or military
intelligence the question becomes then, are the interrogations
of unlawful enemy combatants bound or bordered by Common
Article 3? I would argue, colleagues, that there is not one
country in this world that conducts terrorist interrogations
using Common Article 3 standards, because that means you cannot
even say hello to them hardly.
The purpose of this endeavor is to get military commissions
right with Hamdan and right with who we are as a Nation. So I
am going to be on the opposite side of you on classified
information. Reciprocity is the key guiding light for me. Do
not do something in this committee that you would not want to
happen to our troops.
The question becomes for me, if an American servicemember
is being tried in a foreign land would we want to have that
trial conducted in a fashion that the jury would receive
information about the accused's guilt not shared with the
accused and that person be subject to a penalty of death? I
have a hard time with that.
Telling the lawyer does not cut it with me either, because
I think most lawyers feel an ethical obligation to have
information shared with their client. I would ask you to look
very closely at the dynamic of whether or not you can tell a
lawyer something and the lawyer cannot tell the client when
their liberty interest is at stake. I think you are putting the
defense lawyers in a very bad spot.
So the question may become for our Nation, if the only way
we can try this terrorist is to disclose classified information
and we cannot share it with the accused, I would argue do not
do the trial; just keep them, because it could come back to
haunt us.
I have been in hundreds of military trials and I can assure
you the situation where that is the only evidence to prosecute
somebody is one in a million, and we need not define ourselves
by the one in a million.
Now, when it comes to hearsay, there are 27, I think,
exceptions to the military hearsay rule. I am willing to give
you more. The International Criminal Court (ICC) does not have
a hearsay rule, so the international standard is far different
than the standard we have in Federal Rules of Evidence,
Military Rules of Evidence. But I think it would do us well as
a country, serve us well as a country, to set down and come up
with a hearsay rule that has an exception for the needs of the
war on terror, not just ignore the hearsay rule in general.
So I have not asked one question yet. I made a lot of
speeches and I am sorry to take up the committee's time. I
would end on this thought.
Chairman Warner. We will give you a little extra time to
ask one question.
Senator Graham. This is very complicated. It means a lot to
all of us and we have a chance to start over. Mr. Attorney
General, Secretary England, I appreciate what you have done
with Mr. Bradbury and others. I am very pleased with the
collaborative process.
Here is where I think we have come to. The political
rhetoric is now being replaced by sensible discussions. Mr.
Attorney General, do you believe it is wise for this country to
simply reauthorize Military Commission Order 1 without change?
Mr. Gonzales. I think the product we are considering now is
better.
Senator Graham. So the testimony that was given to the
House by a member of the DOJ, that it sounds good to me just to
reauthorize Military Commission Order 1, would probably not be
the best course of conduct?
Mr. Gonzales. Again, I think what we are considering now is
the better product.
Senator Graham. Do you agree with the evolving thought that
the best way to approach a military commission model is start
with the UCMJ as your baseline?
Mr. Gonzales. That is what we have done.
Senator Graham. I think we are making great steps forward,
I really, really do. I could not agree with you more that when
it comes to title 18--now, the committee needs to really
understand this. If you are in charge of a detainee and you are
a military member, two things govern your conduct, title 18 and
the UCMJ, I think it is Article 93. It is a crime in the
military to slap a detainee. A simple assault can be prosecuted
under the UCMJ through Article 15, nonjudicial punishment, or a
courts-martial of a variety of degrees.
What we do not want to happen, I think, is to water down
the word ``war crime.'' We need to specify in title 18 what is
in bounds and what is not, because our people in charge of
these detainees could be prosecuted for felony offenses. Mr.
Attorney General, I think you are correct in wanting to get
more specificity, be more specific, instead of just using
Common Article 3, and I would like to work with you to do that.
The last thing is inherent authority. I had a discussion
with you several months ago and I asked you a question in the
Senate Judiciary Committee: Do you believe that Congress has
authority under our ability to regulate the land and sea and
naval forces and air forces to pass a law telling a military
member, you cannot physically abuse a detainee, the McCain
amendment? Do we have the authority to do that?
Mr. Gonzales. I think you do have the authority to pass
regulations regarding the treatment of detainees, yes, sir, I
do.
Senator Graham. We are making tremendous progress. Thank
you.
Chairman Warner. Thank you very much.
I see no colleagues on this side who have not had the
opportunity to speak, so I now turn to Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Secretary England, I am trying to reconcile your actions in
response to the Court's decision with the testimony of the
Attorney General today. In response to the Court's decision, on
July 3 you issued an official memorandum which applied all
aspects of Common Article 3 to detainees. Is that correct?
Secretary England. That is correct.
Senator Collins. I applaud you for doing that and taking
action quickly to comply with the Supreme Court's decision.
Now, Mr. Attorney General, in your testimony today you say
that some of the terms in Common Article 3 are too vague. For
example, you cite ``humiliating and degrading treatment,''
``outrages upon personal dignity.'' If it is too vague, how is
it that Secretary England is able to apply those same standards
to the treatment of detainees?
Mr. Gonzales. I think that even though the Secretary's
actions were the correct actions, even the JAGs believe that,
because now we are talking about prosecution for commission of
a felony, there does need to be absolute certainty or as much
certainty as we can get in defining what it is, what would
constitute a violation of Common Article 3. It is one thing to
engage in conduct that may violate the UCMJ. It is another
thing if that same conduct all of a sudden becomes a felony
offense, which the DOJ is now involved in.
I think we all agree, there is universal agreement, that if
there is uncertainty, if there is risk, we need to try to
eliminate that uncertainty and we need to try to eliminate that
risk.
I think that there are certain actions that we all agree
would violate Common Article 3--murder, rape, maiming,
mutilation, no question about it. But there are some foreign
decisions that provide a source of concern, and the Supreme
Court has said in interpreting our obligations under the treaty
we are to give respectful consideration to the interpretations
by courts overseas and also to give weighty consideration--to
give respectful consideration to the adaption or the
interpretation by other state parties to those words.
So what we are trying to do here, again working with the
JAGs, is trying to provide as much certainty as we can, so that
people are not prosecuted by the DOJ for actions that they did
not realize constituted a war crime.
Senator Collins. Secretary England?
Secretary England. Senator, this has been a significant
issue for the DOD. As a matter of fact, it was part of the
discussion of the field manual in 8 months and part of that. It
is all part of this discussion in terms of trying to define
these terms. Now it is very important because, while we have
complied in the past and trained to it, it is now a matter of
law, and as a matter of law there is consequences, because--is
it the War Crimes Act, Mr. Attorney General?
Mr. Gonzales. Right.
Secretary England. The War Crimes Act now makes U.S.
personnel--they can be prosecuted if they do not comply with
Common Article 3. So those words now become very important. So
degrading treatment, humiliating treatment, those are
culturally sensitive terms. What is degrading in one society
may not be degrading in another, or it may be degrading in one
religion, not in another religion.
Since it does have an international interpretation which is
generally, frankly, different than our own, it becomes very
relevant. So it is vitally important to the DOD that we have
legislation now and clarify this matter, because now that it is
indeed a matter of law that has legal consequences for our men
and women and civilians who serve the United States Government.
Senator Collins. Mr. Attorney General, I want to follow up
on a comment that Senator Graham made in his questioning of
you. He pointed out the dilemma of giving access to classified
information to a detainee who is being brought to trial, and he
says what happens now is that if it were an American citizen
who is a member of the Armed Forces and you needed to protect
that information then the trial does not go forward. Senator
Graham suggested that in this case the result is that the
detainee is not tried, but simply held.
But I wonder if you are troubled by that outcome. It seems
to me if the result is that the detainee is held without trial
for an unending amount of time that that raises real concerns
as well. I wonder if that is a fair outcome, that the result of
not having access to classified information is he does not get
his time in court, but he is held. That is punishment, to be
held.
Mr. Gonzales. I do not know whether or not I can comment on
whether or not it is a fair result. I do know that at the end
of the day I do not think the United States, this
administration, I do not believe the DOD--and Deputy Secretary
England can comment on this--want to remain the world's jailers
indefinitely. Obviously, we hold people because we are engaged
in a conflict with al Qaeda and there is a military necessity
to hold people.
I think generally the American people would like to see
some kind of disposition sooner as opposed to later. They do
not want these people released, but if in fact they can be
prosecuted for committing crimes against America I think the
American people would like to see that happen.
So it may make sense to at least have that opportunity
available. That is the whole reason why we want to have
military commissions. Obviously, there is a great deal of
political pressure on this administration to close Guantanamo.
We have to do something with the folks at Guantanamo. We can
return them back to their home countries. Sometimes that is
difficult to accomplish. We can release them, but we can only
release them if we are confident they are not going to come
back and fight against America, and we already know that there
have been some instances where that has happened.
So that is a decision that is one that is very weighty and
we have to exercise with a great deal of care. Another
alternative is to try to bring them to justice through military
commissions. Again, I think it is going to be an extraordinary
case when we will absolutely need to have classified
information to go forward with a prosecution that we cannot
share with the accused. But I think it is something that we
really ought to seriously consider to have remaining as an
option.
To get back to one final point for Senator Graham, we
contemplate a provision in the legislation which would make it
quite clear that the provisions, the procedures of the military
commissions, would not be available, could not be used against
anyone that the President or the Secretary of Defense
determined was a protected person under Geneva or a prisoner of
war or qualified for prisoner of war status under Geneva.
Therefore, if another country captured an American soldier and
they said, okay, we are going to use your military commission
procedures that you passed on this American soldier, according
to the very terms of the military commission procedures that we
are contemplating they could not do that.
Senator Collins. Thank you.
Senator Graham. Could I, Mr. Chairman?
Senator McCain [presiding.] Go ahead.
Senator Graham. I guess what I was trying to say, only 10
percent or less I believe of the enemy combatants have been
scheduled for military commission trials. Is that correct?
Mr. Gonzales. Today, but there is a reason for that,
Senator.
Senator Graham. I think there is a good reason. Every enemy
combatant is not a war criminal, and I do not want us to get
into a situation where every POW is a criminal. If you are
fighting lawfully and you get captured, you are entitled to
being treated under the Geneva Conventions. Every enemy
combatant is not a war criminal. So we do not want to get in
the dilemma that you have to prosecute them or let them go,
because that is not a choice that the law requires you to make.
But once you decide to prosecute somebody, the only point I
am making, Mr. Attorney General, when you set that military
commission up it becomes a model. It becomes a standard. The
question that I have is that we have some Special Forces people
who are not in uniform, that may fall outside the convention,
that may be relying on Common Article 3. That may be the only
thing left to them in foreign hands. So what we do with
irregular enemy combatants could affect the outcome of our
troops who are in the Special Forces field. That is what we
need to think about.
Senator McCain. Senator Nelson.
Senator Ben Nelson. Thank you, Mr. Chairman.
I want to thank the witnesses as well for being here today
to help us understand this effort to come into compliance with
the Supreme Court decision and the importance of doing it in a
lawful way in handling enemy combatants.
Now, if my colleague from South Carolina is right that not
every enemy combatant is a war criminal and not every enemy
combatant has to be tried, is it your opinion, Mr. Attorney
General, that someone could be held for the duration even
though not tried, however long the duration is, even in a war
against terror as opposed to a more traditional war that
typically has a beginning and to date has always had some sort
of an ending?
Mr. Gonzales. Senator, not only is that my opinion; that is
a principle that has been acknowledged by the Supreme Court.
Senator Ben Nelson. So the only purpose of trying to have
commissions in effect is to try people who are enemy
combatants, as an example, who we believe have committed war
crimes, that we want to bring war crime prosecution against
them and hold them as war criminals; is that correct?
Mr. Gonzales. It is an additional tool that I believe is
necessary and appropriate for a commander in chief during a
time of war, yes, sir.
Senator Ben Nelson. Mr. Secretary, does your memo on Common
Article 3 extend to contractors who are performing
interrogations, as opposed to just simply members of the
military who might perform interrogations of enemy combatants
or people who are suspected of being enemy combatants? In other
words, outside contractors, non-uniformed individuals, do they
fall under Common Article 3 as well?
Secretary England. Senator, I will have to get back with
you. Frankly, at the time I put out the memo I was not thinking
of contractors. I was thinking of people in the DOD.
Senator Ben Nelson. There would not be any question about a
translator, for example. But there could be a question about
contractors, because was that not one of the questions in Abu
Ghraib and other circumstances, where there were others
performing interrogations?
[The information referred to follows:]
Yes. DOD policy is clear that all DOD interrogations of detained
personnel, including those conducted or supported by contractor
personnel, will be conducted in accordance with applicable law and
policy. Therefore, actions by DOD contractor personnel must meet the
requirements of Common Article 3, since, at a minimum, the standards
articulated in Common Article 3 shall be observed by all DOD personnel
and contractor employees in detention and interrogation operations,
without regard to a detainee's legal status.
Senator Ben Nelson. Then if we turn over any detainees to
other governments, let us say Pakistan or Afghanistan, are they
subject to Common Article 3 for their protection?
Mr. Gonzales. Sir, we have an obligation not to turn them
over to a country where we believe they are going to be
tortured, and we seek assurances whenever we transfer someone
that, in fact, they will not be tortured.
Senator Ben Nelson. So are we fairly clear or crystal clear
that in cases of rendition that has not happened?
Mr. Gonzales. Of course, Senator, rendition is something
that is not unique to this conflict or to this administration
or this country.
Senator Ben Nelson. Oh, no, I am not trying to suggest
that. I am just trying to get clarification.
Mr. Gonzales. I cannot--we are not there in the jail cell
in foreign countries where we render someone. But I do know we
do take steps to ensure that we are meeting our legal
obligations under the Convention Against Torture and that we do
not render someone to a country where we believe they are going
to be tortured.
Senator Ben Nelson. So we would want to see Common Article
3 applied in every situation where we may turn a detainee over
to another country. We would take every action we could be
expected to take to see that that was complied with, or is that
expecting more than we can commit to?
Mr. Gonzales. Sir, the Supreme Court made no distinction in
terms of military contractors or military soldiers. The
determination was that Common Article 3 applies to our conflict
with al Qaeda.
Senator Ben Nelson. Thank you for your answers. Thank you,
Mr. Chairman.
Chairman Warner [presiding]. Thank you, Senator Nelson.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Secretary England, Attorney General Gonzales, welcome and
thank you for being here today. Let me congratulate the DOJ and
the DOD on the diligence with which you have undertaken this
challenge to try to address the concerns and the decision of
the Supreme Court in the Hamdan case.
My questions do not have so much to do with the nature of
the trial, because to me that seems like that is the easiest
part of this to deal with. In courtrooms in cities all across
this Nation. We have trials going on, civil and criminal
trials. We have courts-martial proceedings. We kind of
understand sort of the basic parameters of what a fair
proceeding looks like.
The Supreme Court said that it was appropriate that the
general rules that would apply to a fair trial could be
adjusted and adapted as appropriate to the nature of the
military commission and the exigencies of trying individuals,
unlawful combatants, during a time of war.
But I think that, based on the questions that Senator
Graham asked and the answers that you gave, I do not think that
is that hard, and I think that the work that the administration
has done, the proposals that have been discussed, we can do
that.
What concerns me the most is when I look at the nature of
the intelligence that has been obtained through interrogation
of detainees at Guantanamo, it includes the organizational
structure of al Qaeda and other terrorist groups, the extent of
terrorist presence in Europe, the United States, and the Middle
East, al Qaeda's pursuit of weapons of mass destruction,
methods of recruitment and locations of recruitment centers,
terrorist skill sets, including general and specialized
operative training, and how legitimate financial activities can
be used to hide terrorist operations.
Those are the sorts of things that have been gleaned
through interrogation of unlawful combatants at Guantanamo Bay.
If you agree with me, and I am sure you do, that we ought to
use every lawful means to obtain actionable intelligence that
will allow us to win and defeat the terrorists, the question I
have for you is: Why in the world--and not just you. The
question I would ask rhetorically is: Why would we erect
impediments to our ability to gain actionable intelligence over
and above what is necessary to comply with the Supreme Court's
decision in Hamdan?
While we have heard a lot of testimony during the course of
these hearings about the nature of the proceeding that is
required by the Supreme Court decision, what we have not heard
enough about in my view is what concerns that we should have
about erecting additional impediments, maybe not required by
the Supreme Court decision, but if we are not careful raising
new barriers to our ability to get actionable intelligence.
I would like to ask Secretary England if he would address
that, and then Attorney General Gonzales.
Secretary England. Senator Cornyn, I am listening, but I am
not aware of these additional barriers that we are
constructing.
Senator Cornyn. Let me try to be clear. There has been some
suggestion, and I think--the Supreme Court held that the Geneva
Conventions broadly speaking apply to al Qaeda. Senator Graham
said and in previous testimony I believe Attorney General
Gonzales has addressed his belief that that is not true, even
though Common Article 3 would apply, that Geneva Conventions
broadly speaking do not apply to confer POW status on al Qaeda.
What I am speaking about particularly is Article 17 of the
Third Geneva Convention says that prisoners of war who refuse
to answer may not be threatened, insulted, or exposed to
unpleasant or disadvantageous treatment of any kind. What I am
concerned about is if we somehow through an act of Congress in
effect hold that unlawful combatants like al Qaeda are entitled
to protections such as Article 17 of the Geneva Conventions,
what that would do to our ability to gather intelligence if
they could not be exposed to unpleasant or disadvantageous
treatment. I hope that helps clarify.
Secretary England. I guess my understanding is the
legislation deals specifically with Common Article 3. That is,
it does not elevate to full POW status. So it deals with
basically the law that was addressed in Hamdan, that is that
Common Article 3 applies, and that is what the nature of this
legislation is. So I will let the Attorney General expand, but
I believe that we have limited this legislation specifically to
Common Article 3 and the application of Common Article 3 to
military commissions.
Senator Cornyn. That is my understanding as well.
Mr. Gonzales. Senator, you raise a very important point. We
are engaged in an ongoing conflict. A lot of people refer to
procedures and proceedings of other tribunals that occurred
after the conflict was over, when there was a lot less concern
about access to classified information, sharing of information.
Clearly, in this kind of conflict gathering of information, of
intelligence, is critical. It is so important.
It is one reason why we suggest that we not use or have
Article 31 of the UCMJ as part of the procedures for military
commissions, which requires Miranda rights as soon as someone
is under suspicion of having committed some kind of crime. That
makes no sense when you are on the battlefield and you want to
grab someone. You know that already they are a suspect, but you
need more information. It is important to be able to question
them, and the notion that you would have to read them the
rights and give them lawyers at the outset of course makes no
sense.
But more to your point about the application of Geneva,
clearly I think that there are consequences that follow from a
decision that al Qaeda should be afforded all the protections
under Geneva Conventions. It will affect our ability to gather
information. There is no question about that.
Clearly, the requirements of Common Article 3 place some
limits, but they are limits very consistent with what the
President has already placed upon the military since February
2002, and we believe that we can continue to wage this war
effectively under Common Article 3, assuming that Congress
provides some clarity about what those obligations are, because
there are some words that are inherently subject to
interpretation and I think it makes sense once again to have
Congress provide clarity about what our obligations are under
Common Article 3.
Senator Cornyn. Attorney General Gonzales, of course
Congress has spoken on the DTA, providing appropriate but
limited judicial review in a habeas corpus setting for these
detainees. Is it your opinion that we can, consistent with the
Supreme Court decision, if we were to apply the provisions of
the DTA, including the McCain amendment for treatment of
detainees that provide proceedings for the trial of the
detainees by military commission as you have proposed, that
that would be sufficient to comply with the concerns raised by
the court?
Mr. Gonzales. Of course the Court really took no action
with respect to--when I say ``the Court,'' five members of the
Court, a holding of the Supreme Court of the United States.
There were not five members of the Court that said this
particular provision is unconstitutional or unlawful. What the
Court said: Mr. President, if you want to use procedures that
are not uniform with the UCMJ, you cannot do that unless there
are practical reasons for doing so. Otherwise, you have to use
the procedures of the UCMJ or have Congress codify what those
procedures will be.
So again, the UCMJ is a creature of Congress. If Congress
wants to change that or use those procedures or deviate from
those procedures, I think Congress has the authority to do so.
Senator Cornyn. My last question has to do with the
application of the DTA to pending cases that are in the Federal
court system. Obviously Congress intended the DTA would provide
an exclusive method of judicial review of habeas petitions
emanating out of Guantanamo, but it was not expressly in the
legislation applied to all pending cases. Is it your judgment
and recommendation to Congress that we apply in the course of
the legislation that we file here, whatever we pass, that would
apply to all pending cases, including the provisions of the
DTA?
Mr. Gonzales. That would be the recommendation of the
administration, Senator. We are currently burdened by hundreds
of lawsuits for all kinds of matters relating to conditions of
cells, conditions of recreation, the types of books that people
can read. So again, we believe that the process that we had set
up, the Combatant Status Review Tribunal Process, combined with
the Annual Review Boards, combined with appeal up to the DC
Circuit, we believe that these provide sufficient process to
detainees, and we believe that all of this litigation should be
subject to the DTA.
Senator Cornyn. Thank you very much.
Thank you, Mr. Chairman.
Chairman Warner. Senator Sessions.
Senator Sessions. Thank you very much.
So, our JAGs, we train to Common Article 3. But I used to
train soldiers in the Army Reserve and I had to teach them the
Geneva Conventions. What we were training to were for lawful
prisoners of war. We were training to deal with people who
complied with the Geneva Conventions, were entitled to the
protections of the Geneva Conventions.
Now, I just want to say I respect the JAG officers. I held
a JAG slot for a short period of time, but I never had my
Charlottesville training, so I do not claim to be anything like
a legitimate JAG officer. But I would just say that, with
regard to these unusual areas, unlawful combatants who renounce
all principles of warfare, who openly behead people, who take
it as their right to kill innocent men, women, and children to
further their agenda, this is an unusual thing for the military
to deal with, and I think the President--I just want to be
frank--had every right to call on his counsel and the DOJ to
ask what authorities and powers he had, and I do not believe he
was constrained to follow the UCMJ in handling these.
Secretary England, would you agree with that?
Secretary England. Yes, sir, I agree with that.
Senator Sessions. Mr. Attorney General, you have been in
the middle of that. Would you not agree with that?
Mr. Gonzales. Certainly, Senator, based upon our reading of
precedent and previous court decisions, we believe the
President did have the authority to stand up these commissions
with these procedures, which provided much more process than
any other commission process in history. But the Supreme Court
has now spoken in Hamdan.
Senator Sessions. I agree. I would just ask you, from my
reading of it, it appears to me that the Supreme Court to reach
the conclusion it did really had to reverse the existing
authority of the U.S. Supreme Court, Ex Parte Quirin. Would you
agree with that?
Mr. Gonzales. Again, Senator, there are many aspects of the
opinion that I would question and that I would love to have
discussion----
Senator Sessions. I will just ask you this. You believed,
did you not, that these procedures complied with the Supreme
Court authority in Ex Parte Quirin and you attempted to follow
Supreme Court authority when you set up these commissions, did
you not?
Mr. Gonzales. No question about it, Senator, that lawyers
at the DOJ and certainly at the White House believed that the
President had the authority and that these procedures would be
consistent with the requirements under the Constitution.
May I just say one thing, Senator?
Senator Sessions. Yes.
Mr. Gonzales. Because I have heard a lot of people say, how
could you be surprised, how could you guys get this wrong?
These are hard issues, and we were right all the way up until
June 29, 2006. We had a DC Circuit opinion that said: You are
right, Mr. President.
I also would remind everyone that six of the eight justices
wrote in that case, six of the eight. There was 177 pages worth
of analysis. So for those people who say this was such an easy
issue, I beg to differ. If you look, it is easy to criticize
after the fact, but these were very hard issues, and assuming
that Justice Roberts would have stayed with his position on the
Supreme Court, he voted on the DC Circuit opinion--it would
have been a five-to-four decision.
This is a very tough, very close issue.
Senator Sessions. I could not agree more, and I just do not
think the President and the DOJ or the DOD need to be hung out
there suggesting that you are way off base. It was a five to
four opinion, very complex, and even then it was not harshly
critical of the DOJ. It just set some standards that now we
have to figure out how to comply with.
Now, let us talk about this UCMJ. This is a trial procedure
and sets the standards for treatment of American soldiers who
have been charged with crimes, is it not? This is the
standard--this is the manual for trying soldiers who may have
committed crimes, American soldiers.
Mr. Gonzales. An overwhelming number of those crimes, as I
believe to be the case, do not relate to crimes that were
committed in battle or on the battlefield.
Senator Sessions. Absolutely, whether they committed an
assault or a theft or anything of those things that are tried.
We give them in many ways more protections than an American
would get tried in a Federal court for a crime in the United
States of America.
Mr. Gonzales. There is no question about that, that the
procedures and rights that are provided to our servicemen are
greater in many respects than you or I would receive in an
Article III court.
Senator Sessions. We just cannot transfer that to the trial
of the Nazi saboteurs that were described in the Ex Parte
Quirin case, many of whom were tried and executed in fairly
short order by President Franklin Roosevelt or under his
direction.
Now, let us take the question of coercion. The Federal law
on coercion in criminal cases, that used to be my profession. I
spent more time prosecuting than I have done anything else in
my professional career. It is very strong. For example, if a
police officer hears an alarm going off and someone running
away and he grabs them and says, what were you doing and who
was with you, and the guy says ``My brother Billy,'' that would
be stricken as a coercive statement because he was in custody
of the police officer and he did not know he had a right not to
answer.
If a military officer questions a lower ranking individual,
they are protected. That is considered coercion because they
may feel they have an obligation to answer that officer when
they have a right not to give it. I remember the Christian
burial speech, where the officer got the murderer to take him
to the body of the little girl by saying: She is lying out
there in the snow; you ought to tell us where she is so we can
get a Christian burial. Five to four, the Supreme Court said
that was an involuntary confession.
Then you have the exclusionary rule. That is not required
by the Constitution to the degree that we give it in the United
States or any fair system of law. Most nations do not create
the exclusionary rule that says that if a soldier out on a
battlefield improperly seized evidence, that that cannot be
utilized, or if a soldier apprehends somebody on the
battlefield and they confess to being involved in terrorism
that if that would violate coercion by our standards surely we
are not going to make that excluded from evidence in a
commission trial for a terrorist charge. You see what I am
saying?
Mr. Gonzales. Yes, sir.
Senator Sessions. So I want to be sure when you study this
language, and you are going to have to take the lead on it and
think all this through. But I would like to say to you, we need
you to help us, because I have great confidence in the lawyers'
skills of the members of this committee and their commitment to
doing the right thing, but we do not know all these details. We
have not studied that 170-page opinion, I hate to tell you.
Some of them like to make you think we have all read it, but we
have not.
So I guess I am calling on you to do that, and let us be
sure that these extraordinary protections that we provide to
American soldiers and American civilians because we live in
such a safe Nation, that we can take these chances and give
these extra rights, that we do not give them to people who have
no respect for our law and are committed to killing innocent
men and women and children.
Mr. Gonzales. Senator, you have raised some good points. I
would urge the committee to also consider that as we talk about
whether or not coerced testimony should come in--and again, I
would remind the committee that our thinking is that if it is
reliable and if it is probative as determined by a certified
military judge that it should come in--that if you say that
coerced testimony cannot come in, if I am a member of al Qaeda
everyone is going to claim this evidence has been coerced, and
so then we will get into, I think, a fight with respect to
every prosecution as to what is in fact coerced and what is not
coerced.
Senator Sessions. I guess questions of torture and things
like that are what people think about when they think about
coercion. But if we just adopt the UCMJ we will pick up all
these other things that I just mentioned, that will often turn
on the actions of an Army soldier who has never been trained
like a police officer, and we have enough problems with police
officers trying to do everything precisely right.
I think you will work on this correctly. I have confidence
in it. I think we need to understand these things before we
attempt to alter what I am sure you will come up with.
Mr. Gonzales. But let me be clear about this, Senator.
There is agreement about this: evidence derived from torture
cannot be used.
Senator Sessions. Yes.
Thank you, Mr. Chairman.
Chairman Warner. Senator Talent.
Senator Talent. Thank you, Mr. Chairman.
My main concern through these hearings has been to make
certain that our men and women have the ability to get the
actionable intelligence that they may suspect is there. Now, as
I understand it, we already prohibited cruel and inhumane
punishment, and the issue, just summing up, is what about
degrading tactics, because there may be tactics that are not
cruel and inhumane but are degrading. You have indicated you
would like us to provide guidance and everybody here has said
we want you to provide guidance.
What about if we came up with a list of what they could do?
In other words, structure--and I am talking about
interrogations now. I am not talking about trials afterwards,
because at least when you get to the trial point you have
gotten the intelligence and you have acted on it from a
military standpoint, which is my main concern.
What about if between you and us here in Congress we came
up with a list for our men and women about what they could do?
You can play loud music, even if culturally the prisoner would
feel degraded, you can have an all-woman interrogation team. A
list of things that you could do, and then perhaps just say,
look, if it is not on the list of things you could do,
establish a process for signoff by somebody with some kind of
oversight for other tactics that may or may not be degrading
under the circumstances.
If you could answer that question, and then also maybe
address, if we did that should the standard vary a little bit
depending on how crucial the judgment is about the
intelligence, because I know personally I would want our people
to push more into a grey area if they felt the intelligence was
really crucial to saving American lives.
Mr. Gonzales. Of course, the idea that you propose
regarding lists I think is obviously one that could be
considered. The concern that I always have about lists is what
you forget to put on the list, but you proposed a possible
solution to provide a mechanism where additional items could be
included on the list.
I, for one, am worried about different baseline standards.
We have already a baseline standard with the McCain amendment
under DTA, and I think it may be wise to first consider whether
or not that should not also be the standard with respect to our
obligations under Common Article 3, which ties it to a U.S.
constitutional standard. It would prohibit cruel and inhumane
and degrading treatment that is prohibited under the 5th, 8th,
and 14th Amendment.
Now, I do not know if that goes far enough, however,
because you are talking about a test that is in and of itself
still a little bit subjective. For that reason, because we are
talking about possible criminal prosecution under the War
Crimes Act, I do think it makes sense, and I think the JAGs
agree, that it is appropriate to have a list in the War Crimes
Act of those offenses, those activities, those actions, which
if you have violated the War Crimes Act and you can be
prosecuted for a felony.
So that sort of is our current thinking, Senator. I would
be happy to take back your proposal and think about the
benefits of it and whether or not there are other problems that
I cannot think of right now. But our current thinking is that
perhaps what we intend to propose to Congress is that, guys,
let us just have one standard. Everyone seems to be comfortable
with the McCain standard, which is tied to a U.S.
constitutional standard, and let us just import it over to our
obligation under Common Article 3, provide additional
protections for our service men and women by defining what
specific actions would constitute a war crime.
Senator Talent. Now, are you certain that that standard
would pass muster under Article 3 of the Geneva Conventions?
Mr. Gonzales. I am confident of that. Not only that, again
having been, not brought to task, but highlighted by Senator
McCain that my recollection of the JAGs' testimony was
incorrect, my recollection of the JAGs' testimony was that they
felt comfortable that the McCain standard fits nicely, neatly
within our obligations under Common Article 3, and I believe
that to be true also.
Senator Talent. I will go back and check that, too, because
I thought that they believed more guidance was necessary on
that point on what is degrading and what is not, because it
certainly seems logical to me to believe that there may be
interrogation tactics that are cruel and inhumane that are not
degrading.
Mr. Gonzales. I think that they believed we needed
additional clarification and certainly would welcome additional
clarification through the McCain amendment as a possibility.
Senator Talent. Of course, one of the problems with the
list is that it is telling the enemy what we are going to do or
not do, so they can prepare. But of course, it seems to me we
are in that boat one way or the other. So at least my concern
now is that our interrogators feel comfortable enough that they
do not draw back from something we would want them to do.
Secretary England. Senator, if I could make a comment here,
the McCain amendment refers to the Army Field Manual as a part
of law. So earlier in this discussion Senator McCain asked
about the status of the Army Field Manual, and of course that
is what we have been dealing with these months, is trying to
articulate better, not a list per se, but to describe better
for our men and women exactly what is permissible under the
McCain amendment, which again is grounded in the Constitution.
So there is now a grounding in some of these terms that we did
not have before, and now we are trying to help interpret that
for the men and women in the Army Field Manual.
We have been working on that some time, because you can
well imagine, as complex it is for us to do, to also reduce
this to words in the field manual. But I expect that
ultimately, perhaps after we discuss this, that that core list
shows up in the Army Field Manual and not in the legislation
per se. I guess, Mr. Attorney General, I will know your views
of that.
Senator Talent. The attitude of our interrogators I think
is very important, and I do not want them to be afraid that
they are going to be hung out to dry for making a fair call
under difficult circumstances. Maybe that is just, Mr.
Chairman, the commitment of everybody on this end of
Pennsylvania Avenue and on the other end of Pennsylvania Avenue
that we are just not going to do that, that we are not going
to, for whatever reason, hang these men and women out to dry if
they make a reasonable call under difficult circumstances. I do
not want us to forgo intelligence we should be getting because
people are deterred in that way.
Chairman Warner. I think that is a very fair statement and
I associate myself with that statement.
Senator Talent. Thank you, Mr. Chairman.
Chairman Warner. Thank you.
Senator Thune.
Senator Thune. Thank you, Mr. Chairman.
Mr. Attorney General, Mr. Secretary, thank you for
appearing today and thank you for providing your insights. As
has already been pointed out, these are very complex legal
issues with lots of different bodies of law, from the more
recently passed DTA, to the Conventions, to the UCMJ, which is
why I think you had six different people writing opinions on
the Supreme Court when they looked at this. Not being a lawyer,
a number of lawyers on the committee and obviously some great
perspective and experience to bring to this issue. I know we
count upon you to get this right within the legal framework and
the parameters that have been established for us to operate
within.
As a nonlawyer, I would hope that in looking at this issue
we can at the end of the day accomplish a couple of objectives
that are consistent with principles that I think the people
that I represent would like to see accomplished in this debate.
First and foremost, my main concern in this, and I think it has
been voiced by others here, is the protection of our own men
and women who serve beyond our shores, and the types of risks
and jeopardy we put them in if we do not have our house in
order here, so that colleagues like our colleague Senator
McCain and the treatment that he endured when he was in
detention for all those years, that is something that we really
want to avoid. That first and foremost I think has to be a
guiding principle when we look at this issue.
Second, that we do adopt treatment standards that reflect
America's core values when it comes to the respect for human
rights. I think that that is something that everybody probably
is in general agreement on as well. So those are sort of two
guiding principles.
Finally, as has been noted today as well, my concern would
be that in doing that, that when we accomplish these things we
not do it in a way that hamstrings our ability to inquire the
intelligence that is necessary for us to prosecute and succeed
and win the war on terror. That seems to be the real issue here
in coming up with the legal framework, is how best to
accomplish that and yet enable the people who we are relying on
to get the information that is necessary for us to succeed in
the war on terror able to accomplish that objective.
Secretary England, it seems to me too--and I listened to
this whole discussion about lawful and unlawful combatants, and
there are different sort of standards from the Geneva
Conventions to the DTA. But Secretary England, in your opinion
within the Geneva Convention is the definition of unlawful
combatant adequately defined to encompass terrorist groups and
how detainees from those groups are to be treated and the
rights that they have under the convention?
Secretary England. We know they are not prisoners of war.
So in my understanding--and again, I am not the lawyer in this,
like yourself, Senator. But my understanding is it does define
unlawful combatant and Common Article 3 is common across all
four Geneva Conventions. So when you apply it--I believe we do
know how to apply Common Article 3 if it is properly defined.
So as the Attorney General stated earlier, and what we have
wrestled with, there are particular words and particularly the
outrages upon personal dignity and particularly humiliating and
degrading treatment, which are very subjective. So that is of
concern, which is one reason it is very important that we have
a legal basis for Common Article 3 as we go forward, and the
purpose for this legislation is hopefully to help clarify that.
So I believe when we have defining legislation for Common
Article 3 then we will have an adequate basis to go forward in
terms of applying Common Article 3 to unlawful combatants.
Mr. Gonzales. Senator, I think part of the problem we have
is in 1949 the drafters and those who signed the Geneva
Conventions did not envision this kind of conflict, where you
have a superpower like the United States taking on a terrorist
group that is not really tied to a state actor. So some of the
provisions of the Geneva Convention, I think you have to ask
yourself, do they continue to make sense. I think that is a
legitimate question for the administration and for Congress.
I am not talking about those provisions that relate to
basic humane treatment. Obviously those remain relevant today
and very important and something that we believe is consistent
with our values. But some of the provisions, quite frankly, are
hard to square with the kind of enemy that we deal with today.
I know there have been discussions within the State
Department. I have testified about the fact that this is an
issue we have wrestled with for years within the
administration, about should there be a formal evaluation of
the Geneva Conventions. Now, I want to emphasize very quickly,
having made that statement, I am not in any way suggesting a
retreat from the basic principles of Geneva in terms of the
humanitarian treatment. Obviously that remains eternal and we
need to continue and we need to fight for that.
But there are certain provisions that I wonder, given the
times that we currently live in and given this new enemy and
this new kind of conflict, whether all the provisions continue
to make sense.
Senator Thune. My concern would be with respect to the way
our own men and women are treated is, for state actors and
those that follow the Conventions and rules of war, that we
have standards that are fair and respectful of those basic
human rights. But on the other hand, at the same time I am
somewhat sympathetic to some of the comments that Senator
Sessions was making, that you are not dealing with--I do not
think the terrorist organizations could care less about what we
do here. It does not mean anything to them. If they got in
possession of some of our people, they are going to treat them
the same way they treat, we have seen them treat them on our
television screens and everywhere else, and that is to kill and
destroy without conscience or remorse. I think that is a very
different standard.
So that is what I am getting at, this whole distinction
between lawful and unlawful combatants.
Mr. Gonzales. I agree with you. I do not think al Qaeda's
actions would change one bit depending on how we deal with
people that we detain. But quite frankly, they are not the
audience that we should be concerned about. There are
expectations of the United States in terms of how we treat
people and so there are basic standards of humanity that need
to be respected, irrespective of how brutal the enemy is.
Chairman Warner. If you would like another question.
Senator Thune. If I might, just one last question. I think
I should direct this to Secretary England. Has there been any
concern within the DOD that the legislation that is being
considered will actually create an incentive for combatants
that the United States will face in the future to ignore the
laws of war because either way they are going to be treated as
if they were legal combatants? What I am saying, that terrorist
groups that might, instead of following the Conventions and
rules of war, if they figure they are going to be treated as
legal, lawful enemy combatants, as opposed to unlawful or
terrorist organizations; is that a concern?
Mr. Gonzales. I do not think that that is a concern. We are
contemplating, again as I indicated in response to an earlier
question, a provision that makes it clear that if the President
or the Secretary of Defense determined you are a prisoner of
war, so if you are fighting by the rules, you are not going to
be covered under these proceedings. So I would hope that that
would provide an incentive, quite frankly, for people to fight
according to the laws of war, so they would receive all the
protections under the Geneva Convention.
Senator Thune. Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator.
Gentlemen, we have had a good hearing and I am going to
wrap up here very shortly. But I must say I was quite
interested, Senator Thune, in the question and answer reply and
really the colloquy that you had with our distinguished panel
of witnesses. I could not agree more. I remember 1949 very
well. I had spent the last year of World War II in uniform and
had come out and actually had just joined the Marine Corps in
1949, and nobody envisioned the situation that faces the world
today, and particularly those nations which I am so proud of,
our Nation, fighting this war on terror.
I think you are exactly right, that was never envisioned.
But there is language in that Convention that I am sure we are
going to incorporate and follow, because the Court has spoken
to it, the Supreme Court, and that is the law of the land, and
you and I as lawyers should respect that.
That brings me to, as I look back over the work that we
have done so far and I look back at the UCMJ, that has a
relatively small amount of statutory language and a
considerable amount of codification of rules and so forth and a
lot of presidential rulemaking. Now, how should we approach
this statute? Should Congress, given the importance of the
Supreme Court decision and other things, adopt more legislative
and less rulemaking?
If you want to reflect on that, please do so. I think it is
something we should discuss further, the two of us, and with
other colleagues as we go along.
Mr. Gonzales. All right, Mr. Chairman.
Chairman Warner. You see my point there?
Mr. Gonzales. No question about it. Obviously that is
probably always a discussion or a debate with respect to a
piece of legislation, how much flexibility or discretion to
give to the executive branch. Obviously, when you are talking
about discretion to the commander in chief in a time of war,
that seems to make some sense.
Some people believe that the more that Congress codifies,
the more likely it is to bulletproof it from a bad decision in
the courts. I think in this particular case, quite frankly,
there are things it would be helpful to have codified, but
there are certain areas, quite frankly, that I think leaving
flexibility to the commander in chief through the Secretary of
Defense makes sense.
I think that our thinking on it reflects that kind of
balance, where again it is helpful to have some clarity, but
also provide some flexibility to the Secretary of Defense.
Chairman Warner. At the moment I share those views. We want
to establish the four corners and the Constitution is very
clear that the President is the commander in chief. Yet there
is the other provision, we make the rules with regard to the
men and women of the Armed Forces. So somewhere in between
those two constitutional provisions is our challenge.
But I am enormously pleased with this hearing. I think we
have made great progress, and I commend both of you. I wonder
if you would like for purposes of the record to have the names
of those individuals who accompanied you here today and who
presumably have worked hard on this, included in this record.
Mr. Gonzales. Thank you, Mr. Chairman. I am accompanied by,
whom you know well, Steve Bradbury, who is the Acting Assistant
Attorney General for the Office of Legal Counsel. He has a
strong, able team--have been really at the forefront of the
drafting----
Chairman Warner. Around the clock, 7 days a week.
Mr. Gonzales.--and negotiation. I am also here with Carol
Sampson, my Chief of Staff, and Wilma Shella, who is my
Legislative Director, as well as Decia Scalinas--I do not know
if she is still here--who is head of my Public Affairs Office.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much.
Secretary England.
Secretary England. He has been working all the hard work
and literally every night and every weekend, Dan Dell'Orto, who
has been working with all the folks in the DOJ. But also all
the people in the DOD.
I do want to comment, Mr. Chairman, that we have had the
general counsels from all of our Services, we have had the
JAGs, we have had our service chiefs, we have had our service
secretaries, we have had staff within the DOD General Counsel's
Office, and Dan Dell'Orto has been coordinating all of that,
along with, by the way, all our combatant commanders have been
involved in all this. So we have been fully vetting and
coordinating all of these discussions, all these iterations, as
we have gone along. Dan Dell'Orto has been doing a wonderful
job in the DOD, and I do thank him and his team for that great
effort.
Chairman Warner. Thank you very much, and we thank you,
recognizing that you are not a lawyer, but you have done your
very best, and I think you have held your own quite well.
Secretary England. Thank you.
Chairman Warner. Not too late to get that degree.
Secretary England. It is far too late, Mr. Chairman.
[Laughter.]
Chairman Warner. You have a little extra time. Senator Byrd
came to the United States Senate and was a Senator and went to
night law school for a number of years and got his law degree.
Thank you very much. The hearing is now concluded, and we
shall have further hearings of this committee on this important
subject. We are adjourned.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John McCain
torture
1. Senator McCain. Attorney General Gonzales and Secretary England,
a draft of the administration's proposal that was leaked and has been
made widely available indicates that statements obtained by the use of
torture, as defined in title 18, section 2340, U.S.C., would not be
admissible in a military commission trial of an accused terrorist. Why
would you choose to use this definition of torture rather than the
definition of ``cruel, inhuman, or degrading treatment or punishment''
in the Detainee Treatment Act (DTA)?
Mr. Gonzales. The administration draft relied on the same
definition of torture that Congress enacted to implement United States
treaty obligations under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).
The DTA's standard, by contrast, does not refer specifically to
torture, nor does it purport to define torture. Rather, it prohibits
``cruel, inhuman, or degrading treatment or punishment'' based on
established standards of the United States Constitution. Because the
United States has a specific treaty obligation under the CAT to
preclude the use of statements obtained by torture, it made sense for
the administration's proposal to rely upon the CAT's definition of
torture.
Since the testifying, Congress has enacted the Military Commissions
Act (MCA) of 2006. The administration worked with you and other members
of the Armed Services Committee on this specific provision, and the
final law specifically addresses the admissibility of statements
obtained through torture or alleged coercion. The MCA excludes
statements obtained by torture, as that term is defined under United
States law, and it further excludes statements obtained in violation of
the DTA, which was enacted on December 30, 2005. See 10 U.S.C.
948r(d).
As for other statements obtained before the DTA or in compliance
with the DTA, the MCA leaves the question of admissibility to the sound
discretion and expertise of the military judge. Rather than trying to
define ``coercion,'' Congress has appropriately entrusted military
judges with the authority to make context-specific determinations about
whether a particular statement appears to be reliable and whether the
interests of justice would be served by admission of the statement. See
id. 948r(c).
Secretary England. I would refer you to the Attorney General's
response to this question. I would also point out that the Department
of Defense (DOD) recently completed the Manual for Military
Commissions. The Manual implements the requirements of the MCA of 2006,
and, consistent with that Act, excludes the use of statements obtained
by torture, as defined under United States law, as well as statements
obtained in violation of the DTA. For statements obtained before the
passage of the DTA, the military judge is given the discretion to
determine whether, based on the facts of the situation, a particular
statement appears to be reliable and possessing sufficient probative
value, and whether the interests of justice would be served by
admission of the statement into evidence.
2. Senator McCain. Attorney General Gonzales and Secretary England,
do you believe that statements obtained through illegal inhumane
treatment, even if it is deemed reliable and probative, should be
admissible? If so, why?
Mr. Gonzales. As discussed above, the MCA provides that statements
shall not be admitted if they are obtained through torture or cruel,
inhumane, or degrading treatment after the enactment of the DTA. As for
other statements, the MCA provides that the statements shall be
admitted if the military judge, in his sound discretion and expertise,
finds that the statements are reliable and the interest of justice
favors their admission. That standard would not prevent the judge from
considering allegations of mistreatment in making such a ruling. As
Military Commission Rule of Evidence 304 makes clear, the military
judge may consider all relevant circumstances, including the facts and
circumstances surrounding the statement. We support this approach.
Secretary England. No. As noted above, the MCA of 2006 prohibits
the admission of statements obtained through torture or cruel, inhuman,
or degrading treatment in violation of the DTA. For statements which
were not obtained through means illegal under United States law, the
Act provides that the statements shall be admissible if the military
judge presiding over the trial finds that the statement is reliable and
of sufficient probative value and the interests of justice would best
be served by its admission. The DOD has implemented the procedures
found in the MCA of 2006 in its Manual for Military Commissions.
coercion
3. Senator McCain. Attorney General Gonzales and Secretary England,
the same section of the draft proposal states that evidence obtained
through coercion could be introduced at trial if it is reliable and has
probative value. How would the administration define coercion for the
purpose of admitting evidence into military commission trials?
Mr. Gonzales. Coercion is a concept that is notoriously difficult
to define under the law, and any interrogation is to some degree
coercive. Indeed, the Supreme Court created prophylactic warnings in
Miranda v. Arizona, 384 U.S. 436, 457 (1966), precisely because of the
difficulty in clearly defining ``coercion.'' As noted, the MCA
specifically excludes statements obtained by torture or in violation of
the DTA. As for other statements allegedly obtained by ``coercion,''
the MCA leaves the question of admissibility to the sound discretion
and expertise of the military judge. Allegations of ``coercion'' are
easy to make and often difficult to rebut, particularly in the context
of an ongoing armed conflict. Indeed, an al Qaeda training manual
obtained by the United States specifically instructs its members to
claim abuse when captured. Accordingly, rather than trying to define
``coercion,'' Congress has appropriately entrusted military judges with
the authority to make context-specific determinations about whether a
particular statement appears reliable and whether the interests of
justice would be served by the admission of the statement. See 10
U.S.C. 948r(c).
Secretary England. The MCA does not require the military judge to
make a specific finding of coercion. Rather, the question is whether
under the circumstances, the statement is reliable and its admission
would be in the interests of justice. The Discussion note to the
relevant section in the Manual on Military Commissions provides further
guidance on this issue. That note states, in relevant part, ``[T]he MCA
requires military judges in military commissions to treat allegedly
coerced statements differently, depending on whether the statement was
made before or after December 30, 2005. See 10 U.S.C. Sec. 948r (c),
(d). For statements made on or after that date, the military judge may
admit an allegedly coerced statement only if the judge determines that
the statement is reliable and possessing sufficient probative value,
that the interests of justice would best be served by admitting the
statement, and that the interrogation methods used to obtain the
statement did not amount to cruel, inhuman, or degrading treatment or
punishment prohibited by the DTA. If a party moves to suppress or
object to the admission of a proffered statement made before December
30, 2005, the military judge may admit the statement if the judge
determines that the statement is reliable and possessing sufficient
probative value, and that the interests of justice would best be served
by admitting the statement. In evaluating whether the statement is
reliable and whether the admission of the statement is consistent with
the interests of justice, the military judge may consider all relevant
circumstances, including the facts and circumstances surrounding the
alleged coercion, as well as whether other evidence tends to
corroborate or bring into question the reliability of the proffered
statement.''
4. Senator McCain. Attorney General Gonzales and Secretary England,
are there coercive techniques that constitute cruel, inhuman, or
degrading treatment under the DTA?
Mr. Gonzales. There certainly may be coercive techniques that also
would constitute cruel, inhuman, or degrading treatment under the DTA.
For instance, torture is an extreme form of coercion, and it would
clearly violate both United States prohibitions on torture and the DTA.
The United States does not engage in torture, and the United States
also complies with its obligations under the DTA.
Secretary England. I imagine there could be. But, as noted above,
the MCA of 2006 prohibits the use of statements obtained through
torture, and it prohibits the use of statements obtained through cruel,
inhuman, or degrading treatment where those statements were obtained
after the enactment of the DTA.
The DTA of 2005 contains the following provision:
``No person in the custody or under the effective control of
the DOD or under detention in a DOD facility shall be subject
to any treatment or interrogation approach or technique that is
not authorized by and listed in the United States Army Field
Manual (FM) on Intelligence Interrogation.''
I issued a directive to the Department on December 30, 2005,
informing the field of this legal requirement under the DTA.
The interrogation approaches and techniques contained in recently
released FM 2-22.3, Human Intelligence Collector Operations, comply
with the law and are well within the humane treatment requirements of
Common Article 3. The FM also prohibits certain specific actions or
activities related to the interrogation of detainees.
5. Senator McCain. Attorney General Gonzales and Secretary England,
why does the administration disagree with the Judge Advocates General
(JAGs) who testified this morning before the Senate Judiciary Committee
that coerced testimony should not be admissible?
Mr. Gonzales. The JAGs were involved in the formulation of the
President's proposed military commissions legislation, and they agreed
that military commissions should be able to consider a broad range of
evidence. There is room to debate whether the President's initial
proposal would have permitted coerced testimony, as the focus in that
proposal was on the reliability of the evidence under the totality of
the circumstances, which includes but need not have been limited to the
factor of coercion. It is our understanding, however, that the JAGs
reviewed and did not object to the final version of 10 U.S.C. 948r.
Secretary England. The JAGs were instrumental in providing guidance
and assistance during all aspects of the development and now
implementation of the MCA and the Manual for Military Commissions. For
their current thoughts on particular provisions of the MCA and the
Manual for Military Commissions, I would refer you back to them.
6. Senator McCain. Attorney General Gonzales and Secretary England,
could a statement that is obtained through the use of cruel, inhuman,
or degrading treatment or punishment that does not rise to the level of
torture as defined in title 18, U.S.C., be reliable and have probative
value? If so, why?
Mr. Gonzales. The MCA provides for the exclusion of statements
obtained by torture or in violation of the DTA. With respect to
statements obtained prior to the enactment of the DTA, Congress has
appropriately placed the admissibility decision in the hands of
experienced and impartial military judges. If the military judge finds
the statement reliable, and if he finds that the interests of justice
would be served by the commission considering the statement, then we
believe that the evidence should be admitted. It would be inappropriate
for us to speculate about hypothetical scenarios; rather, military
judges should have the discretion to consider specific factual
situations and to make evidentiary determinations under the totality of
the circumstances. We hasten to emphasize that it is not now--nor has
it ever been--the policy of the United States to collect statements
through the use of cruel, inhuman, or degrading treatment. The
administration remains fully committed to complying with its
obligations under the DTA, MCA, and other sources of domestic and
international law.
Secretary England. Without specific circumstances, it is not
possible to answer such a broadly stated hypothetical question.
Regardless, I applaud Congress's decision to leave evidentiary matters
to the sound discretion of qualified military judges acting on a case-
by-case basis.
7. Senator McCain. Attorney General Gonzales and Secretary England,
should a suspected terrorist who has no compelling evidence against him
other than a coerced statement be convicted--and potentially put to
death--based solely on that coerced statement?
Mr. Gonzales. Under the MCA, every suspected terrorist enjoys the
presumption of innocence, and the Government bears the burden of
proving the accused's guilt beyond a reasonable doubt, the highest
standard of proof recognized by our law. See 10 U.S.C. 9491(c)(1).
Nondeath penalty cases will be tried before a minimum of five military
commission members, two-thirds of whom must agree to convict the
accused. See id. 949m(a). As under the Uniform Code of Military
Justice (UCMJ), death penalty cases will be tried before 12 commission
members, who must agree unanimously that the accused has committed an
offense triable by military commission, and that the death sentence is
an appropriate punishment. See id. 949m (b), (c).
Obviously we cannot speculate in the abstract as to what evidence
may or may not persuade the members of a military commission in a
hypothetical case. It bears emphasizing, however, that the procedural
protections built into the MCA--including that the accused is presumed
innocent unless guilt is proven beyond a reasonable doubt, see 10
U.S.C. 949l(c)--would make it highly unlikely than an accused
terrorist would be convicted and sentenced to death ``based solely on
[a] coerced statement.'' Nonetheless, when you are talking about trying
individuals for the murder of American citizens, we do believe that it
is important that commissions be able to consider all reliable and
probative evidence, and that where the interests of justice favor
consideration of the evidence, the accused should not be able to
prevent the commission from considering reliable evidence based on
allegations of ``coercion.''
Secretary England. If there is ``no compelling evidence'' against
an individual other than a ``coerced statement,'' it is virtually
impossible to think the impartial members of the military commission
would find that trial counsel has carried his burden of proving guilt
beyond a reasonable doubt. The MCA provides that a statement allegedly
obtained by coercion is not admissible if (for statements made before
December 30, 2005) the military judge finds that the circumstances
under which the statement was made render it unreliable or not
possessing sufficient probative value, or not in the best interests of
justice. Military Commission Rule of Evidence 304(c), requires the
military judge to conduct a test to determine the reliability of the
statement in question, its probative value, and whether the interests
of justice would be met by its admission. In evaluating whether the
statement is reliable and whether the admission of the statement is
consistent with the interests of justice, the military judge will
consider the facts and circumstances surrounding the alleged coercion,
as well as whether other evidence tends to corroborate or bring into
question the reliability of the proffered statement. The MCA did not
contain a requirement that confessions by defendants must be
corroborated, and the DOD did not include such a rule in the Manual for
Military Commissions.
treatment of classified evidence
8. Senator McCain. Attorney General Gonzales and Secretary England,
a plurality of the Supreme Court in Hamdan along with Justice Kennedy
in his concurrence found troubling the possibility of a conviction and
sentence based on evidence that a defendant has not seen or heard.
Admiral John Hutson also found this possibility troubling. He recently
said the rules would allow the government to tell a prisoner, ``We know
you're guilty. We can't tell you why, but there's a guy, we can't tell
you who, who told us something. We can't tell you what, but you're
guilty.'' Do you also find such a possibility troubling? If not, why
not?
Mr. Gonzales. We do not believe that such a possibility existed
under the President's proposed legislation, which provided only for the
exclusion of the accused where the judge found the exclusion to be so
limited as to not deprive the accused of a fair trial. Admiral Hutson's
description of the procedures certainly would not appear to have met
that standard and thus contrary to his statement, would not have been
possible under the proposed legislation. In any event, the MCA provides
for a different mechanism to protect our Nation's secrets from
disclosure to the enemy. The MCA recognizes the accused's right to be
present for all military commission proceedings. See 10 U.S.C.
949d(b). At the same time, the MCA provides for robust protection for
classified information, including intelligence sources and methods. See
id. 949d(f).
Secretary England. The MCA precludes the possibility Admiral Hutson
posed. Section 949d(b) of title 10 permits the accused to be present
for all proceedings unless he engages in disruptive behavior. Section
949d(f) provides for the protection of classified information and
materials, and the Rule for Military Commissions 701(f) and Military
Commission Rule of Evidence 505 strike the proper balance between the
need to protect classified information and materials and the accused's
ability to both discover information within the government's possession
and to be tried using.the most practicable and adequate substitutes for
classified information. Section 949a(b)(A) permits the accused to
``examine and respond to all evidence admitted against him on the issue
of guilt or innocence and for sentencing.''
9. Senator McCain. Attorney General Gonzales and Secretary England,
why isn't military rule of evidence 505--which deals with the treatment
of classified evidence--good enough for military commissions?
Mr. Gonzales. The MCA strikes an appropriate balance between the
rights of the accused and the interests of our national security. The
new law grants the accused the right to be present for all trial
proceedings. See 10 U.S.C. 949a(b)(1)(B); id. 949d(b). Moreover,
the accused will have access to all the evidence admitted before the
trier of fact, see 949a(b)(1)(A), and to all exculpatory evidence,
see id. 949j(d). At the same time, the MCA contains robust
protections to ensure that the United States can prosecute captured
terrorists without compromising highly sensitive intelligence sources
and methods. See id. 949d(f).
As you note, Military Rule of Evidence 505, which tracks the
Classified Information Procedures Act, provides procedures that allow
the Government to seek judicial approval for the substitution of
classified evidence with redacted or summarized evidence. These
procedures generally apply in cases where the accused himself has had
access to the classified information, and the primary goal of these
procedures is to permit the trial to go forward in public without the
unnecessary disclosure of classified evidence. By contrast, military
commission cases may involve a considerable amount of classified
evidence to which the accused, an alleged terrorist, has never had
access and cannot safely be given access in the middle of the present
armed conflict. For this reason, we believed, and Congress concluded
that the MCA needed to provide alternative procedures for handling
classified information in military commission proceedings.
Although some of Rule 505's procedures parallel those in the MCA,
they are not identical, reflecting the fact that military commission
procedures are designed for the trials of unlawful enemy combatants--
not the members of our Armed Forces--and that in contrast to courts-
martial, military commission prosecutions are far more likely to
concern evidence that either is classified or was derived from
classified sources or methods. Accordingly, the Manual for Military
Commissions contains elaborate procedures that ensure the accused will
receive a fair trial, while also protecting our national security.
Secretary England. Military Rule of Evidence 505 is useful with
respect to handling classified evidence when the United States tries a
person in our courts for something he has done with evidence already
accessed with authorization, e.g., a servicemember who has a clearance
but has somehow misused it. Under those circumstances, the person
charged has already seen that evidence, so the issue is not that the
individual charged cannot see the evidence, but that the public cannot
see it. In the case of military commissions, we are trying alleged
terrorists. In the midst of the current conflict, we cannot share with
these alleged terrorists highly sensitive intelligence.
hearsay rule
10. Senator McCain. Attorney General Gonzales and Secretary
England, would the administration object to a strengthening of the
hearsay rule contained in the draft of the military commissions
proposal that has been leaked by adopting Rule 807 of the Federal Rules
of Evidence, which permits hearsay testimony if: (A) the statement is
offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the
interests of justice will best be served by admission of the statement
into evidence?
Mr. Gonzales. The Supreme Court has read Rule 807 narrowly in light
of the Constitution's Confrontation Clause. See Crawford v. Washington,
541 U.S. 36 (2004). Military commissions, however, like other
international war crimes tribunals, will have a strong need to consider
reliable hearsay evidence, and therefore, we would be reluctant to rely
solely on Rule 807 as the governing hearsay rule. The MCA provides that
hearsay evidence may be admitted if it would be admissible in a court-
martial proceeding, or if the judge otherwise finds the evidence
probative and reliable. See 10 U.S.C. 949a(b)(2)(E). That MCA rule
further provides, like Rule 807, that the opponent of the evidence be
given advance notice of the statements in question so as to have a fair
opportunity to meet the evidence. We believe that this rule is
appropriate for military commission proceedings.
Secretary England. The MCA allows for hearsay evidence ``unless the
military judge finds that the circumstances render it unreliable or
lacking in probative value.'' We support the standard adopted by
Congress. We are engaged in an ongoing conflict, and often witnesses
and evidence will not be readily available. Given that fact, there are
practical reasons to deviate from the UCMJ with respect to the use of
hearsay as long as the information is probative and reliable. Given
that, we believe Congress struck the proper balance in
Sec. 949a(b)(2)(E) (i) & (ii).
prosecuting terrorists
11. Senator McCain. Attorney General Gonzales, in June, the
Department of Justice (DOJ) issued a press release announcing its
success in prosecuting terrorists in our Federal courts. The press
release states, ``Since the Sept. 11 attacks, and as of June 22, 2006,
261 defendants have been convicted or have pleaded guilty in terrorism
or terrorism-related cases arising from investigations conducted
primarily after September 11, 2001. Those cases have an international
connection, including certain investigations conducted by the FBI's
Joint Terrorism Task Forces and other cases involving individuals
associated with international terrorists or foreign terrorist
organizations.'' Did the DOJ's experience in these prosecutions
influence the administration's draft legislative proposal to establish
military commissions for the trial of suspected terrorists?
Mr. Gonzales. Yes, the administration certainly drew upon the
Department's experience when seeking military commission legislation.
As the press release indicates, the prosecution of terrorists and the
supporters of terrorism has been, and will remain, an important legal
weapon in the war on terror. In some cases, these terror prosecutions
do not differ considerably from other criminal prosecutions: the
accused may have been arrested in the United States based upon local
evidence uncovered through traditional police work.
At the same time, our experience has demonstrated in some cases the
difficulties of prosecuting international terrorists in Federal court.
The evidence against some suspects may include classified information,
or the witnesses may be located abroad and not subject to Federal court
jurisdiction. Moreover, these difficulties are likely to be even
greater when it comes to prosecuting many of the enemy combatants now
detained at Guantanamo Bay. Most of these individuals were captured in
Afghanistan, and the prosecutions will proceed based on evidence
obtained from the battlefields in Afghanistan or terrorist safe houses
located throughout the world. For these reasons, it was both necessary
and appropriate for Congress to establish military commissions under
the MCA, and we look forward to those prosecutions going forward.
12. Senator McCain. Attorney General Gonzales, given the DOJ's
success in prosecuting suspected terrorists under rules of procedure
that, for example, do not permit the prosecution of defendants with
classified information that defendants do not see in some form, why do
you believe that we need military commissions with rules that permit
coerced testimony and hearsay evidence, and feature other departures
from the UCMJ?
Mr. Gonzales. As explained in the previous answer, even our
successful cases can illustrate the difficulties associated with using
the civilian justice system to prosecute terrorists. Prosecutions in
Federal court may well be possible for some individuals, but at the
same time, there will be many cases where military commissions will be
essential to permitting an effective prosecution. Congress recognized
in the MCA that many provisions of the UCMJ are neither necessary nor
appropriate for military commission prosecutions, such as Articles 31
and 32, the hearsay rule, and Rule 505. At the same time, many
provisions of the MCA closely track those of the UCMJ. We believe that
Congress struck the appropriate balance in enacting the MCA.
detainee treatment act
13. Senator McCain. Attorney General Gonzales, you have said that
our troops require certainty in law. Would you say that the DTA, which
relies on the 5th, 8th, and 14th Amendments, provides our troops with
greater clarity than Common Article 3?
Mr. Gonzales. Yes. The Federal courts have given meaning to these
constitutional protections through U.S. caselaw. In contrast, Common
Article 3 contains inherently vague terms and is subject to the
evolving interpretations of foreign governments and international
tribunals. In addition, our forces already must comply with the DTA
standard without regard to how Common Article 3 is interpreted.
Therefore, the Administration advocated implementing United States
treaty obligations by making clear that the DTA standard, which
reflects the treatment standard for United States citizens under our
Constitution, meets or exceeds the international standards governing
the treatment of unlawful combatants under Common Article 3.
Congress, however, has provided clarity as to our Nation's
obligations under Common Article 3 through the MCA. The MCA defines the
grave breaches of Common Article 3, identifies the DTA standard as a
relevant prohibition under Common Article 3, and reaffirms and
reinforces the President's authority to interpret further United States
obligations under the Geneva Conventions. The DOD has provided further
clarity for our forces by promulgating the revised Army FM on
Interrogation and the DOD Detention Directive.
14. Senator McCain. Attorney General Gonzales, you said in today's
hearing that DOJ has produced a definitive analysis of the
interrogation techniques permitted under the DTA. Has this analysis
been shared with the JAGs? If not, how are you able to get their input
regarding the equivalence between Common Article 3 and the DTA if they
do not know how the DTA is defined? If the analysis has been shared,
are they comfortable with using the administration's definition as the
definition of Common Article 3?
Mr. Gonzales. In formulating the President's military commission
proposal, the administration engaged in a lengthy consultation process
with all interested departments and agencies, including the JAGs. We
certainly did discuss with military lawyers our proposal to rely on the
constitutional standards of treatment, as embodied in the DTA, as one
way of understanding the baseline humanitarian standards of Common
Article 3. Congress ultimately agreed that the DTA standard is relevant
to the interpretation of Common Article 3, but did not declare the
equivalence between Common Article 3 and the DTA for all purposes.
Rather, Congress provided that the President should have the authority
to interpret the meaning and application of Common Article 3 beyond the
grave breaches criminalized under the War Crimes Act.
We cannot comment publicly on any specific classified interrogation
practices, beyond stating that authorized interrogation practices are
reviewed for compliance with applicable United States legal
obligations, including the DTA. In my testimony, I did not state that
DOJ has produced ``a definitive analysis'' of the interrogation
techniques permitted under the DTA, but rather agreed that we had
provided legal advice on the subject. With respect to the JAGs' views
on the meaning of the DTA standard, we would refer you to the DOD,
which is in a better position to answer your question.
15. Senator McCain. Attorney General Gonzales, are they, and are
you, comfortable with all of the interrogation techniques permitted by
this definition being used on Americans who might be covered by Common
Article 3?
Mr. Gonzales. Under international law, in traditional armed
conflicts, American military personnel would be entitled to the higher
protections owed to prisoners of war under the Geneva Conventions,
rather than the lower baseline protections of Common Article 3. In our
current armed conflict with international terrorist organizations like
al Qaeda, of course, our enemies show no respect for any standards
whatsoever under the law of war. Indeed, the prohibitions of Common
Article 3--including murder, mutilation, and torture--are precisely the
sort of acts members of al Qaeda regularly commit upon individuals in
their custody. Nonetheless, we recognize that a U.S. interpretation or
application of Common Article 3 may have reciprocity implications for
U.S. personnel in certain circumstances in future conflicts. We believe
that Common Article 3 can be reasonably interpreted by the United
States, including through clarifications provided by the MCA, to allow
the Central Intelligence Agency (CIA) to operate a safe and
professional program of interrogation of high-value terrorist detainees
in order to protect the United States and its allies and countless
innocent civilians from further catastrophic terrorist attacks, and
that we can do so consistent with legitimate reciprocity concerns.
war crimes act
16. Senator McCain. Attorney General Gonzales, in the War Crimes
Act in title 18, U.S.C., violations of Common Article 3 are
criminalized. The administration proposes to rewrite this statute,
replacing it with a list of offenses--a list that does not include
cruel, inhuman, and degrading treatment. Why do you want to
decriminalize cruel, inhuman, and degrading treatment, no matter how
severe?
Mr. Gonzales. The administration never proposed to decriminalize
cruel, inhuman, or degrading treatment, because the DTA standard is not
a criminal standard under United States law. At the same time, there is
no dispute that many acts that violate this standard, such as torture,
cruel treatment, and severe physical abuse, would also violate United
States criminal laws, including the War Crimes Act. Those acts continue
to be criminal under the War Crimes Act, as amended by the MCA. Our
goal in clarifying the War Crimes Act has always been to provide clear
guidance to United States personnel as to the specific acts that would
give rise to criminal liability. Although the DTA standard of ``cruel,
inhuman, or degrading treatment'' has a meaning based on constitutional
principles developed in the Supreme Court's jurisprudence under the
5th, 8th, and 14th Amendments, we believed that such a constitutional
standard would not provide the appropriate clarity and certainty to
serve as a criminal standard applicable to the individuals most closely
involved in handling detainees. The MCA therefore reaffirms that the
DTA establishes a prohibition under United States law, but it does not
adopt that as a criminal standard for criminal liability.
treatment of detainees
17. Senator McCain. Attorney General Gonzales, at a hearing of the
Senate Judiciary Committee on February 6, Senator Graham asked you:
``Is it the position of the administration that an enactment by
Congress prohibiting the cruel, inhumane, and degrading treatment of a
detainee intrudes on the inherent power of the President to conduct the
war?'' You answered: ``Senator, I don't know whether or not we have
done that specific analysis.'' Have you conducted that specific
analysis yet?
Mr. Gonzales. It was the policy of the United States even before
enactment of the DTA that we would not engage in cruel, inhuman, or
degrading treatment, as defined by the constitutional standards
incorporated into the U.S. reservation to Article 16 of the CAT, and
now since the passage of the DTA in December 2005, that policy has been
the law of the land. The Constitution does confer upon the President
the authority to defend the Nation as the Commander in Chief, and
separation of powers principles do impose some limits on congressional
authority to regulate the President's actions pursuant to that power.
Because, however, the President firmly supports both the law and the
policy at issue in the DTA, we do not foresee any separation of powers
question arising here.
18. Senator McCain. Attorney General Gonzales, is there a
circumstance in which a government employee could legally engage in
cruel, inhumane, or degrading treatment?
Mr. Gonzales. The law of the United States and the policy of this
administration prohibit cruel, inhuman, or degrading treatment, as
defined in the DTA, and we do not foresee any circumstance under which
such acts would be justified.
19. Senator McCain. Attorney General Gonzales, in the same February
6 hearing, Senator Graham asked you: ``Do you believe it's lawful for
Congress to tell the military that, ``You cannot physically abuse a
prisoner of war''? You answered: ``I'm not prepared to say that,
Senator.'' What is your answer today?
Mr. Gonzales. United States military personnel are subject to the
UCMJ, which prohibits the mistreatment of prisoners of war, including
the physical abuse of detainees, and the UCMJ is a valid exercise of
Congress's authority to regulate the Armed Forces. We would also note
that prisoners of war would be subject to the Third Geneva Convention,
which provides them with protections above and beyond those afforded to
unlawful combatants under Common Article 3. Because the United States
does not permit the physical abuse of detainees in violation of the DTA
and the UCMJ, we do not wish to speculate on a separation of powers
question not presented.
20. Senator McCain. Attorney General Gonzales, when is it legal for
the military to abuse prisoners of war?
Mr. Gonzales. We would refer you to the answer to question 19.
21. Senator McCain. Attorney General Gonzales, in what way do you
believe it might be unlawful for Congress to tell the military that it
cannot physically abuse a prisoner of war?
Mr. Gonzales. We would refer you to the answer to question 19.
common article 3
22. Senator McCain. Secretary England, the Attorney General has
stated that Common Article 3 is unacceptably vague. Yet you sent a memo
to the DOD stating your understanding that all DOD procedures are in
compliance with Common Article 3. If Common Article 3 is so vague, how
do you know that DOD is in compliance with its obligations?
Secretary England. I believe the Attorney General stated that
``although many of the provisions of Common Article 3 prohibit actions
that are universally condemned, some of its terms are inherently
vague.'' That is undeniable, and Congress recognized the same point in
the MCA. However, the policies promulgated by the DOD comply with the
law, including Common Article 3. Indeed, the interrogation techniques
in the FM are well within the humane treatment requirements of Common
Article 3. The FM was submitted to the DOJ for its review. DOJ
concluded the FM is consistent with the law, including the DTA of 2005
and Common Article 3.
Additionally, legal reviews by DOD counsel, including Chairman's
Legal Counsel, and Military Department Judge Advocates, also concluded
that the FM complies with the requirements of the law, including the
DTA and Common Article 3.
23. Senator McCain. Secretary England, the administration would
like to put in statute that the prohibitions contained in Common
Article 3 are identical to the prohibition against cruel, inhumane, and
degrading treatment contained in last year's DTA. In that bill, we
defined cruel, inhumane, and degrading treatment with reference to the
5th, 8th, and 14th Amendments to the U.S. Constitution. Are you
comfortable with the administration's definition of what constitutes
cruel, inhumane, and degrading treatment?
Secretary England. Yes.
24. Senator McCain. Secretary England, would you be comfortable
with all of the interrogation techniques permitted under this
definition being used on Americans in this or future wars?
Secretary England. Although the interrogation techniques permitted
under FM 2-22.3, Human Intelligence Collector Operations, clearly
comply with applicable law, including the Geneva Conventions, I do not
know if the enemy DOD will face in the future will comply with the
requirements of the Geneva Conventions and other legal obligations when
interrogating U.S. Armed Forces.
25. Senator McCain. Secretary England, when the JAGs testified
before this committee on July 13, they were asked about the application
of Common Article 3. Admiral McPherson stated: ``It created no new
requirements for us. . . . [We] we have been training to and operating
under that standard for a long, long time.'' General Romig stated: ``We
train to it. We always have. I'm just glad to see we're taking credit
for what we do now.'' The other JAGs agreed. If the military already
complies with Common Article 3, has been training to it, and has been
operating under this standard, why is there a need to redefine the
standard now?
Secretary England. Many of the provisions of Common Article 3
prohibit actions that are universally understood and condemned, such as
``murder,'' ``mutilation,'' ``torture,'' and the ``taking of
hostages.'' It is undeniable, however, that some of the terms in Common
Article 3 are inherently vague.
For example, Common Article 3 prohibits ``[o]utrages upon personal
dignity, in particular, humiliating and degrading treatment,'' a phrase
that is susceptible of uncertain and unpredictable application. Had
Congress left it undefined by statute, the application of Common
Article 3 would create an unacceptable degree of uncertainty for those
who fight to defend us from terrorist attack, particularly because any
violation of Common Article 3--before the MCA's enactment--constituted
a Federal crime under the War Crimes Act. That said, the U.S.
Government had never prosecuted anyone under that provision of the War
Crimes Act, and it is conceivable that our courts might have concluded
that parts of that offense were impermissibly vague.
Furthermore, the Supreme Court has said that in interpreting a
treaty provision such as Common Article 3, the meaning given to the
treaty language by international tribunals must be accorded
``respectful consideration,'' and the interpretations adopted by other
state parties to the treaty are due ``considerable weight.''
Accordingly, the meaning of Common Article 3--the baseline standard
that now applies to the conduct of U.S. personnel in the war on
terror--would be informed by the evolving interpretations of tribunals
and governments outside the United States.
______
Questions Submitted by Senator Edward M. Kennedy
commission procedures for handling classified information
26. Senator Kennedy. Attorney General Gonzales, in your testimony
to the committee, you indicated that in developing new procedures for
the operation of military commissions, you need to take special care to
deal with the issue of securing classified information in the context
of a trial. It is unnecessary to start from scratch in developing such
rules. The Classified Information Procedures Act (CIPA) governs the use
of classified information in the context of Federal criminal
prosecutions, and that statute strikes the necessary balance between
the rights of the accused and the national security interests of the
United States. In addition, Military Rule of Evidence 505 outlines
established procedures for effectively dealing with classified
information in a court-martial context. At the July 13 hearing of the
Senate Armed Services Committee, Senator Roberts asked the JAGs about
the applicability of these procedures to the new military commissions
currently being developed. Major General Scott Black, JAG for the Army,
said that Rule 505 ``is consistent with CIPA in every respect and
provides a procedure that we could well adapt to the commission's
process.'' There are major benefits in following established
procedures. Rear Admiral McPherson, JAG of the Navy, testified that
military lawyers ``have a wealth of experience under 505 that's
probably being used today in a court-martial someplace. So the
experience is there.'' While the JAG lawyers recognize that some
modification of Rule 505 or the CIPA standards may be needed, testimony
before this committee indicates that those modifications should be
limited in scope and that deviations should be the exception, not the
rule. Do you agree that CIPA and Rule 505 should be the basis for any
rules governing the use of classified information by the new military
commissions?
Mr. Gonzales. The MCA of 2006 strikes an appropriate balance
between the rights of the accused and the interests of our national
security. The new law grants the accused the right to be present for
all trial proceedings, unless he engages in disruptive conduct that
requires his exclusion. See 10 U.S.C. 949a(b)(1)(B); id. 949d(e).
Moreover, the accused will have access and the opportunity to respond
to all evidence admitted before the trier of fact. See id.
949a(b)(1)(A). At the same time, the MCA contains robust protections to
ensure that the United States can prosecute captured terrorists without
compromising highly sensitive intelligence sources and methods. See id.
949d(f).
Military Rule of Evidence 505, which is similar to the CIPA,
provides procedures that allow the Government to seek judicial approval
for the substitution of classified evidence with redacted or summarized
evidence. Although some of those procedures parallel those in the MCA,
they are not identical, reflecting the fact that military commission
procedures are designed for the trials of unlawful enemy combatants in
an ongoing armed conflict--not the members of our own Armed Forces--and
that in contrast to courts-martial, military commission prosecutions
are far more likely to concern evidence that either includes classified
information or was derived from classified sources or methods.
27. Senator Kennedy. Attorney General Gonzales, please indicate any
and all areas in which you believe that CIPA or Rule 505 as written are
ill-equipped to deal with the issue of classified information in
military commission trials. Please provide evidence to support any
assertions in this regard--citations to situations in which CIPA or
Rule 505 were insufficient for effective prosecutions, evidence from
historical cases, etc.
Mr. Gonzales. Both CIPA and Military Rule of Evidence 505 provide
procedures that allow the Government to seek judicial approval for the
substitution of classified evidence with redacted or summarized
evidence. These procedures generally apply in cases where the accused
himself has had access to the classified information, and the primary
goal of these procedures is to permit the trial to go forward in public
without the unnecessary disclosure of classified evidence. By contrast,
military commission cases may involve a considerable amount of
classified evidence to which the accused, a captured terrorist, has
never had access and cannot be safely given access in the middle of the
present armed conflict.
Like CIPA and Rule 505, the MCA does protect the accused's right to
have access, and to respond, to all evidence actually admitted before
the trier of fact, and it does permit the substitution of unclassified
evidence, where practicable. At the same time, the MCA contains
additional procedures that will permit the Government to introduce
evidence while protecting from disclosure the highly classified sources
and methods from which that evidence may have been derived. We believe
that such procedures, not specifically contained in CIPA and Rule 505,
are important protections that will allow the United States to
prosecute captured terrorists while still protecting our Nation's most
important secrets during wartime. The Administration did not support
these new procedures because of dissatisfaction with any particular
judicial rulings under CIPA or Military Rule of Evidence 505. Rather,
we supported these procedures because CIPA and Rule 505 are not
principally aimed at protecting classified information in the way it is
likely to be used in military commission prosecutions.
28. Senator Kennedy. Attorney General Gonzales, do you agree with
Rear Admiral McPherson that modeling the rules governing classified
information in military commissions on Rule 505 would be an important
asset in promoting efficient and effective commission trials, given the
``wealth of experience'' by military lawyers in applying those rules in
the real world?
Mr. Gonzales. We believe that Congress, through the MCA, struck the
appropriate balance in the handling of classified evidence for military
commission prosecutions. In enacting the MCA, Congress no doubt drew on
the experience that Federal courts and courts-martial have gained from
applying CIPA and Rule 505. That experience also reveals that the use
of classified evidence in those cases often makes prosecutions quite
difficult. In light of the amount of classified evidence that may be
relevant to military commission proceedings, we would expect that
military commission prosecutions also may prove challenging. We
believe, however, that the MCA establishes strong and fair procedures
that will allow for the most effective and efficient prosecutions under
these circumstances.
detainee protections and effective prosecution of hostilities
29. Senator Kennedy. Attorney General Gonzales, at the August 2
hearing, Senator Clinton asked you why, if the military is trained to
comply with the standards of Geneva that are higher than Common Article
3, we don't just apply those higher standards now instead of trying to
lower ourselves to the lowest common denominator of detainee treatment
that is borderline-permissible under the Constitution. You responded
that the Hamdan decision only requires us to comply with Common Article
3. Implicit in that response is the argument that it is necessary for
us to minimize the level of protection we provide to detainees in order
to effectively wage the war on terror. This assertion is heard often
from this administration, but it does not seem to comport with the
testimony of career military officers who engage these issues as
professionals on a day-to-day basis. At a July 13 hearing before the
Senate Judiciary Committee, Major General Jack Rives, JAG for the Air
Force, testified that you ``have no problem with the Intelligence
Community gathering intelligence effectively. Speaking to a lot of
folks in the intel community and having read a fair amount about it, I
don't believe they need to cross the lines and the violations of the
DTA or Common Article 3 to effectively gather intelligence.'' Do you
have any empirical evidence indicating that treating prisoners
according to the requirements of Common Article 3 would in any way
impede our ability to collect intelligence? If so, please provide any
and all evidence upon which that conclusion is based.
Mr. Gonzales. The administration fully supports treating all
detainees in accordance with our international obligations, including
the Geneva Conventions. The President determined in February 2002 that
Common Article 3 did not apply to the global war on terror, because
Common Article 3 only applies to conflicts ``not of an international
character.'' The Supreme Court reached a different conclusion in Hamdan
v. Rumsfeld, 126 S. Ct. 2749 (2006), however. Since that decision, the
administration has worked to make sure that all United States policies
comply with the standards applicable under Common Article 3.
The administration has never believed that our obligations under
Common Article 3 are inconsistent with effective intelligence
gathering. We have recognized, however, that some of Common Article 3's
provisions, such as its prohibition upon ``[o]utrages upon personal
dignity, in particular, humiliating and degrading treatment,'' are
vague and susceptible to uncertain application. For that reason, we
encouraged Congress to enact implementing legislation to bring clarity
to those standards. Congress responded with the MCA. Section 6(a) of
the MCA reaffirms and reinforces the President's authority to issue
authoritative interpretations of Common Article 3 under United States
law. Section 6(b) defines the nine ``grave breaches of Common Article
3'' that give rise to criminal liability under the War Crimes Act.
Section 6(c) recognizes that the prohibition on ``cruel, inhuman, or
degrading treatment or punishment'' established by the DTA of 2005
constitutes an additional obligation relevant to United States
compliance with Common Article 3. The MCA therefore permits the United
States to ensure that it honors its international obligations under
Common Article 3, while carrying forward the CIA interrogation program
that has been a vital intelligence tool in the war on terror.
30. Senator Kennedy. Attorney General Gonzales, do you have any
empirical evidence indicating that treating prisoners according to the
requirements of full Geneva Conventions standards that all military
service men have trained to for over 50 years would in any way impede
our ability to collect intelligence? If so, please provide any and all
evidence upon which that conclusion is based.
Mr. Gonzales. It is a fundamental principle of international law
that the Geneva Conventions distinguish between lawful and unlawful
combatants as a way of encouraging mutual respect for the law of war.
The Geneva Conventions provide that combatants are only entitled to the
special privileges of prisoners of war when they themselves belong to
forces that comply with the law of war. To afford prisoner of war
status to unlawful enemy combatants would remove the incentive that the
Conventions provide to encourage compliance with the law of war.
The Third Geneva Convention provides significant constraints on the
actionable intelligence that may be obtained from prisoners of war.
Article 17 makes clear that prisoners of war need only divulge their
name, rank, and serial number under interrogation, and they may not be
exposed to coercion or unpleasant or disadvantageous treatment of any
kind for refusing to provide additional information. It is hardly
surprising, therefore, that experienced interrogators within the United
States Government have made the judgment that hardened terrorists are
likely to withhold much actionable intelligence when examined under
such limitations.
The United States conducts no formal experiments as to the
effectiveness of interrogation techniques of detainees in custody. But
there is an ample empirical basis to support the judgment that CIA
interrogations of unlawful enemy combatants have been successful in
providing the United States with critical intelligence that has allowed
us to capture al Qaeda members, disrupt terrorist plots, and save the
lives of Americans' intelligence that traditional techniques had failed
to elicit. Although the techniques employed by the CIA remain highly
classified, the President has made clear that they are safe,
professionally employed, and carefully reviewed to ensure compliance
with our domestic and international legal obligations.
Intelligence obtained in the CIA program has played a role in
nearly every significant capture of al Qaeda members and associates
since 2003 and was instrumental in capturing some of Osama bin Laden's
key lieutenants, including the mastermind of the September 11 attacks,
Khalid Sheikh Mohammed.
The President's most important obligation is to protect the safety
of American citizens. To discharge that obligation, he has a duty to
employ all lawful means that would effectively prevent the terrorists
who have attacked our Nation from engaging in future attacks. The CIA
interrogation program is a necessary and vital tool in service of that
goal.
31. Senator Kennedy. Attorney General Gonzales, do you have any
empirical evidence indicating that intelligence officers must be
required to violate either the full Geneva Conventions or the
requirements of Common Article 3 in order to obtain actionable
intelligence in a timely manner? If so, please provide any and all
evidence upon which that conclusion is based.
Mr. Gonzales. As we stated, the United States has always worked to
comply with its international obligations, including the Geneva
Conventions. We are not aware of any instance in which the United
States determined that it would be necessary to breach its
international obligations under the Geneva Conventions to obtain
actionable intelligence in this conflict. To the contrary, the CIA
interrogation program has been carefully reviewed and determined to be
lawful.
As noted above, prior to Hamdan, the United States did not believe
that Common Article 3 applied to the global war on terror. Since the
Supreme Court decision, however, the administration has reviewed its
policies to ensure compliance with Common Article 3, and it supported
the enactment of the MCA to provide further clarity as to the meaning
of those obligations.
admissibility of evidence obtained through coercion
32. Senator Kennedy. Attorney General Gonzales, at the August 2
hearing before the Senate Judiciary Committee, each of the JAGs on the
panel agreed that evidence obtained by coercion should not be
admissible in a military commission proceeding. When Senator McCain
posed that question to you, you responded that whether or not evidence
obtained by coercion should be admissible would depend on whether the
evidence obtained was reliable and probative. The JAGs did not qualify
their answer--they unequivocally rejected the use of coerced evidence
in legal proceedings. What kind of inquiry will you allow into hearsay
statements to determine whether they are coerced? Will the judge or the
panel make that determination?
Mr. Gonzales. The MCA categorically prohibits the admission of
statements against the accused that have been obtained through torture,
except against a person accused of torture as evidence that the
statement was made. 10 U.S.C. 948r(b). The MCA further prohibits the
admission of statements obtained in violation of the DTA, which was
enacted on December 30, 2005. See id. 948r(d)(3). With respect to a
statement allegedly obtained through coercion that does not fall within
either of those two categories, the MCA requires the military judge to
consider whether the statement is reliable under the circumstances. See
id. 948r (c)( 1), (d)(1). In addition, the MCA requires that the
military judge determine whether admission of the statement is in the
interests of justice. See id. 948r (c)(2), (d)(2). The MCA provisions
do not separately distinguish between allegedly coerced statements that
are considered hearsay and those that are not hearsay under the law.
It is our understanding that shortly before the enactment of the
MCA, the JAGs stated in letters to Senator Levin that they had reviewed
and did not object to the approach to this issue reflected in the final
version of the MCA. With respect to the particular views of the JAGs,
however, we would refer you to the DOD.
33. Senator Kennedy. Attorney General Gonzales, what standards
would a military judge be expected to apply in the determination of
whether hearsay evidence is both sufficiently probative and
sufficiently reliable for admission to a military commission
proceeding?
Mr. Gonzales. With respect to hearsay evidence, the MCA does not
require a particular rule. It does, however, recommend that the
Secretary of Defense adopt a rule that would make hearsay admissible on
similar terms as other forms of evidence, provided that the proponent
of the evidence gives advance notice of the statement to the adverse
party and provided that the military judge does not find the evidence
unreliable. See id. 949a(b)(2)(E). Military judges have a wealth of
experience making determinations as to the probative value and the
reliability of evidence, and we believe that those fact-specific
determinations are appropriately left to the military judge's
discretion. The Manual for Military Commissions, which the Secretary
recently promulgated, adopts the hearsay standard that Congress
recommended. See Military Commission Rules of Evidence (MCRE) 802, 803.
34. Senator Kennedy. Attorney General Gonzales, is it your position
that evidence obtained through coercion should be admissible under
certain circumstances? If so, what are those circumstances?
Mr. Gonzales. We would refer you to the answer to question 32,
which describes how Congress resolved this issue under the MCA. The
administration fully supports that approach.
35. Senator Kennedy. Attorney General Gonzales, what standards
would a military judge be expected to apply in determining whether
coerced testimony is both sufficiently probative and sufficiently
reliable for admission in a military commission proceeding?
Mr. Gonzales. Military judges make similar judgments as to the
probative value and the reliability of evidence all the time. There is
no bright-line rule, however, for determining whether a particular
piece of evidence is sufficiently reliable and probative to be admitted
into evidence. Rather, a military judge will exercise his discretion
based on the totality of the evidence in a particular case.
36. Senator Kennedy. Attorney General Gonzales, should evidence
obtained through torture ever be admissible in a military commission?
Mr. Gonzales. The United States opposes torture in any form,
consistent with its obligations under domestic and international law.
The MCA prohibits the admission of statements against the accused that
have been obtained through torture, ``except against a person accused
of torture as evidence that the statement was made.'' Id. 948r(b).
That prohibition, including the exception, tracks U.S. obligations
under the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (CAT). Therefore,
statements obtained through torture will not be admissible in a
military commission proceeding, except in the criminal prosecution of
an individual charged with torture.
37. Senator Kennedy. Attorney General Gonzales, a military judge
recently refused to say that statements obtained while poking an
individual in the eye with a red-hot poker would lead to a blanket
exclusion of evidence obtained from that interrogation. Do you believe
that statements obtained while poking a detainee in the eye with a red-
hot poker would ever be admissible?
Mr. Gonzales. No, we expect that such statements would not be
admissible. As explained in the answer to question 36, statements
obtained through torture should not be and will not be admissible in a
military commission proceeding, except against an individual charged
with torture. Torture is defined to include the intentional infliction
of ``severe physical or mental pain or suffering.'' Whether particular
conduct rises to the level of torture would be considered by a judge in
the context of an actual case, but any statement obtained in the course
of the conduct you describe certainly would appear to fit that
definition.
38. Senator Kennedy. Attorney General Gonzales, the Supreme Court
recognized the importance of excluding statements obtained through
coercion most recently in an opinion by Chief Justice Roberts (Sanchez-
Llamas v. Oregon, 126 S. Ct. 2669 (2006)). He said, ``We require
exclusion of coerced confessions both because we disapprove of such
coercion and because such confessions tend to be unreliable.'' Do you
disagree with Justice Roberts' statement that coerced confessions tend
to be unreliable?
Mr. Gonzales. The MCA excludes any statement that the military
judge determines to be unreliable under the facts and circumstances of
a particular case. It may not be easy to determine whether a statement
is ``coerced'' as a matter of law, but the alleged degree of coercion
under the circumstances is clearly one factor that a judge would take
into account in measuring the reliability of the statement. See MCRE
304(c).
39. Senator Kennedy. Attorney General Gonzales, do you disagree
with Justice Roberts that such statements must be excluded?
Mr. Gonzales. In the passage that you quote from Sanchez-Llamas,
Chief Justice Roberts observed that coerced statements obtained in
violation of the Fifth Amendment's right against self-incrimination
must be excluded. We certainly do agree that such a statement is an
accurate explanation of existing law for criminal proceedings in
Article III courts. The Chief Justice, however, was not discussing the
procedures required for the prosecution by military commission of alien
unlawful enemy combatants. There, the appropriate question is not what
the Fifth Amendment requires, but what has Congress required by
statute. The MCA provides that statements should be excluded if they
are not reliable or if their admission would be contrary to the
interests of justice.
definition of unlawful enemy combatant
40. Senator Kennedy. Attorney General Gonzales, in your definition
of unlawful enemy combatant, are there any limits on who can be subject
to arrest and detention as an ``associate'' or ``supporter'' of al
Qaeda?
Mr. Gonzales. Section 948a(1) of title 10 defines ``unlawful enemy
combatant'' as ``a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the United
States or its co-belligerents who is not a lawful enemy combatant
(including a person who is part of the Taliban, al Qaeda, or associated
forces).'' That definition, which concerns the alien unlawful enemy
combatants who may be tried by military commission, does not govern the
standard for detention as an enemy combatant. With respect to the
detention of enemy combatants by the military, the DOD has defined an
enemy combatant to be an individual who is ``part of or supporting
Taliban or al Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition partners.'' We
do believe that those terms are reasonably clear under the law and
appropriately ensure that the United States detains only persons who
are involved in hostilities against the United States or its partners.
41. Senator Kennedy. Attorney General Gonzales, can American
citizens be arrested and indefinitely detained as ``associates'' or
``supporters'' of al Qaeda?
Mr. Gonzales. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the
Supreme Court held that American citizens who support al Qaeda may be
held for the duration of ongoing hostilities. As Justice O'Connor's
plurality opinion recognized, ``A citizen, no less than an alien, can
be `part of or supporting forces hostile to the United States or
coalition partners' and `engaged in an armed conflict against the
United States'.'' Id. at 519. Therefore, in light of Hamdi, the United
States may protect the Nation by detaining citizens who are part of or
supporters of forces hostile to the United States. At the same time,
the MCA is clear that military commissions may be used to try only
alien unlawful enemy combatants. See 10 U.S.C. 948b(a). Therefore, if
the United States wanted to prosecute and punish American citizens for
criminal conduct in support of the enemy--as opposed to simply
detaining them as enemy combatants--then it would be necessary to
prosecute them in Federal court.
42. Senator Kennedy. Attorney General Gonzales, what about the old
woman in Switzerland who gives money to the charitable affiliate of al
Qaeda that is building an orphanage in Afghanistan?
Mr. Gonzales. As a general matter, the definition of an enemy
combatant under the law of war includes not only those who take up
arms, but those facilitators who make such attacks possible by, among
other things, providing material support to the terrorists, acting as
couriers, and operating safe houses. We do not believe that this
definition would reach individuals who innocently make charitable
donations that are later diverted to al Qaeda. On the other hand, an
individual who purposefully and materially provides al Qaeda with the
support necessary to carry out terrorist attacks can be just as
dangerous to the United States as those who actually carry out the
attacks. Depending on the circumstances, such an individual may be
properly detained by the United States and prosecuted for war crimes
under the MCA. It is, however, always difficult to speculate outside
the facts of a particular case.
43. Senator Kennedy. Attorney General Gonzales, what about the
American citizen who visits a mosque in Turkey where an imam expressed
support for the current insurgency in Afghanistan?
Mr. Gonzales. Again, although it is difficult to speculate outside
the facts of a particular case, we would not expect that a simple
visitor to a mosque would be determined to be a person who has engaged
in hostilities against the United States, either under the definition
employed by the DOD or that enacted by Congress under the MCA. We would
note that an American citizen could not be prosecuted before a military
commission convened under the MCA, and an American citizen would have
the right to file a petition for habeas corpus to challenge the
legality of his detention in Federal court.
legal rights
44. Senator Kennedy. Attorney General Gonzales, both the current
military commissions and various versions of proposed draft commission
legislation guarantee the right to counsel and the privilege against
self-incrimination. When do those rights attach? At capture? At
incarceration? After being charged?
Mr. Gonzales. Under 10 U.S.C. 948k(a)(3), the accused's military
defense counsel shall be detailed as soon as practicable after the
swearing of charges against the accused. Under section 948r(a), the
accused has the privilege not to testify against himself in a military
commission proceeding. These rights do not attach upon capture and
incarceration because such a rule would be unduly onerous in the
context of capturing enemy combatants during wartime operations, and
because the United States has a need to conduct intelligence
interrogations of captured terrorists wholly apart from any interest in
prosecution.
reciprocity
45. Senator Kennedy. Attorney General Gonzales, Lori Berenson, a
U.S. citizen, was captured in Peru and charged with being a member of
the Tupac Amaru and committing terrorist acts. She was found guilty by
a Peruvian military commission. In 1996, the State Department objected
to her trial, because ``Ms. Berenson was not tried in an open civilian
court with full rights of legal defense, in accordance with
international juridical norms'' and called for the case to be retried
in an ``open judicial proceeding in a civilian court.'' Do you believe
that it was appropriate for Peru to try Ms. Berenson before a military
tribunal?
Mr. Gonzales. We are not familiar with the facts of Ms. Berenson's
case or with the specific circumstances of the Peruvian military
commission proceedings involved there. We would, however, refer you to
the Department of State, which is in a better position to comment.
46. Senator Kennedy. Attorney General Gonzales, would the U.S.
Government object to the trial of U.S. citizens before military courts
in other nations?
Mr. Gonzales. All lawful combatants--including United States
personnel captured by foreign forces--must be tried in accordance with
the Third Geneva Convention's provisions for prisoners of war. Article
102 of the Third Geneva Convention provides that prisoners of war must
be tried in ``the same courts according to the same procedure as in the
case of members of the armed forces of the Detaining Power.'' Thus, if
the foreign nation uses military courts to try members of its own armed
forces, the Third Geneva Convention provides that those same courts and
procedures could be used to try American prisoners of war. We would use
our own courts-martial, for instance, as military courts to try
prisoners of war for violations of the law of war. We similarly would
expect that if a member of the Armed Forces of the United States were
captured by the enemy, he would be tried consistent with the Geneva
Conventions.
The MCA provides fair tribunals that meet or exceed all United
States obligations under the Geneva Conventions. Alien unlawful enemy
combatants have no right to be tried by courts-martial and instead may
be tried by military commissions convened under the MCA. Needless to
say, our enemies in the current conflict do not try captured United
States citizens before tribunals of any kind, but rather torture and
behead prisoners who fall into their custody. We provide fair trials by
military commission not out of any false hope of reciprocity, but
because we as a Nation are committed to the fair treatment of everyone
in United States custody and to the rule of law.
47. Senator Kennedy. Attorney General Gonzales, are you prepared to
accept the legality of each of the following forms of treatment if
reciprocally applied, in each case, by either a foreign government or a
transnational organization to any citizen of the United States--
including, but not limited to, U.S. servicemembers, covert operatives,
and civilian contractors--that may be captured and detained in
connection with an armed conflict?
A. A detainee is tried by a military commission in which
hearsay evidence that is deemed to be both reliable and
probative by that foreign military commission is admitted.
B. A detainee is tried by a military commission in which
coerced testimony that is deemed to be both reliable and
probative by that foreign military commission is admitted.
C. A detainee is tried by a military commission in which
evidence that is deemed to be classified by that military
commission is admitted, but withheld from the accused.
D. A detainee is tried by a military commission in absentia
or in which the detainee is excluded from parts of the trial.
E. A detainee is tried by a military commission in which the
accused has limited or no access to witnesses.
F. A detainee is tried by a military commission for
conspiracy to commit a war crime.
Mr. Gonzales. Again, it is difficult to give a firm conclusion as
to the legality of a particular tribunal without knowledge of all the
surrounding circumstances. As noted, the Third Geneva Convention
requires that prisoners of war be tried in the same courts used to try
the enemy force. The MCA, by contrast, is reserved for unlawful enemy
combatants who do not merit the higher protections afforded prisoners
of war. That said, some of the scenarios you describe would appear
consistent with the practices of international and foreign courts. For
instance, the International Criminal Tribunals for the Former
Yugoslavia and for Rwanda permit the admission of reliable and
probative hearsay evidence, and there is no specific prohibition on
reliable ``coerced evidence.''
The United States believes that the MCA provides appropriate
procedures for the trial of unlawful enemy combatants that meet or
exceed our international obligations and the higher standards to which
we hold our Nation. With respect to (A), the MCA provides that reliable
and probative hearsay evidence may be considered. See 10 U.S.C.
949a(b)(2)(E). Indeed, hearsay evidence may sometimes be the most
reliable evidence in a war crimes context. With respect to (B), the MCA
excludes statements obtained by torture or in violation of the DTA. See
10 U.S.C. 948r. When it comes to allegations of coercion, we ask the
military judge to determine whether it is reliable and whether the
admission of the statements is in the interests of justice. See id.
When there is reliable evidence that the accused committed a war crime,
we believe that it is appropriate that the trier of fact generally be
able to consider that evidence.
With respect to scenarios (C) and (D), the MCA does not permit the
accused to be tried in absentia or through the introduction of
classified evidence withheld from the accused. The new law grants the
accused the right to be present for all trial proceedings (unless he
engages in disruptive conduct warranting his exclusion). See id.
949a(b)(I)(B); id. 949d(e). The accused will have access to all the
evidence admitted before the trier of fact. See id. 949a(b)(1)(A).
Moreover, with respect to scenario (E), all detainees will have a
reasonable opportunity to obtain witnesses and other evidence. See id.
949j. Finally, with respect to scenario (F), the MCA permits the
accused to be prosecuted for conspiracy to commit a war crime, which
Congress appropriately deemed an offense under the law of war. See id.
950v(b)(28).
common article 3
48. Senator Kennedy. Secretary England, when the JAGs of the Armed
Forces were asked about this directive at the Senate Armed Services
Committee hearing on July 13, 2006, Admiral McPherson stated: ``It
created no new requirements for us. . . . [W]e have been training to
and operating under that standard for a long, long time.'' As General
Romig stated: ``We train to it. We always have. I'm just glad to see
we're taking credit for what we do now.'' The other JAGs agreed. If all
of the branches of the military already comply with Common Article 3,
have been training to and operating under this standard, and appear to
be clear about what it means, why is there a need to redefine the
standard now?
Secretary England. Please see my answer to question 25.
49. Senator Kennedy. Secretary England, isn't it true that the
reason we've complied with Common Article 3 in every armed conflict
we've fought since the Geneva Conventions were ratified is that we want
to be able to apply the standard to our enemies as well?
Secretary England. We have complied with the Geneva Conventions in
every armed conflict in which we have engaged since their ratification.
We treat all captured personnel humanely, regardless of their status or
how they have conducted themselves on the battlefield. We would welcome
a commitment from all the enemies that we fight that they would, as a
minimum, comply with Common Article 3. As you know, however, our
current enemy has repeatedly demonstrated that it has no intention of
complying with the Geneva Conventions or Common Article 3.
50. Senator Kennedy. Secretary England, if we limit our
understanding of what this standard means, aren't we inviting our
enemies to do the same thing?
Secretary England. We are not attempting to limit the understanding
of what the terms contained in Common Article 3 mean. We also
respectfully assume that Congress was not attempting to do that in
passing the MCA. As stated previously, many of the provisions of Common
Article 3 prohibit actions that are universally understood and
condemned, such as ``murder,'' ``mutilation,'' ``torture,'' and the
``taking of hostages.'' It is undeniable, however, that some of the
terms in Common Article 3 are inherently vague.
Moreover, since World War II, our enemies have not followed the
Geneva Conventions in treatment of captured U.S. personnel, even when
we have applied them to enemy captured personnel. One need only look at
the torture of U.S. prisoners of war in Korea, Vietnam, and Iraq during
the Gulf War and Operation Iraqi Freedom to see this. Nevertheless, the
United States continues to uphold the laws of war. We would welcome,
however, efforts by other High Contracting Parties that have not done
so to implement in their domestic laws their obligations under the
Geneva Conventions, including Common Article 3.
51. Senator Kennedy. Attorney General Gonzales and Secretary
England, what procedures are proposed to ensure that all individuals
acting on behalf of the U.S. Government, either directly or indirectly,
with respect to detainees (e.g. uniformed servicemembers, civilian
intelligence officers, contracted civilians, et. al.) will comply with
the minimum standards required by Common Article 3?
Mr. Gonzales. The United States takes seriously all of its
international obligations, including those under Common Article 3. The
DOJ regularly provides legal advice, when requested, to assist others
in the executive branch in complying with our international
obligations. Shortly following Hamdan, the DOD issued a public
memorandum directing all of its components to review all relevant
directives, regulations, policies, practices, and procedures to ensure
that they comply with the standards of Common Article 3. For
information on the procedures proposed or in place at other departments
or agencies, we would direct you to the department or agency in
question.
Secretary England. I can only speak for the DOD and note the steps
taken to ensure the holding in Hamdan has been communicated throughout
the DOD. I issued a memorandum on July 7, 2006, informing the DOD that
the Supreme Court determined that Common Article 3 to the Geneva
Conventions of 1949 applies as a matter of law to the conflict with al
Qaeda. My Department provided a copy of this memorandum to Congress.
This memorandum required that all DOD components review all relevant
directives, regulations, policies, practices and procedures to ensure
that they comply with the standards of Common Article 3.
52. Senator Kennedy. Secretary England, the draft legislation would
redefine the definition of Common Article 3 in accordance with the
``shock the conscience'' standard under the U.S Constitution, which has
been interpreted by the administration as imposing a sliding scale,
depending on the circumstances. If the interrogator thinks he needs the
information badly, then certain interrogation techniques are allowed.
If the need is less, then fewer techniques will be permitted. Which is
easier to teach and train on: an absolute standard or a relative
standard that changes according to the circumstances?
Secretary England. See my answers to questions 25 and 50.
53. Senator Kennedy. Secretary England, please specify examples of
any and all interrogation techniques that you believe a U.S.
serviceman, officer, or contractor should be allowed to employ, but are
prohibited by the humane treatment requirements of Common Article 3?
Secretary England. The DTA of 2005 contains the following
provision:
No person in the custody or under the effective control of
the DOD or under detention in a DOD facility shall be subject
to any treatment or interrogation approach or technique that is
not authorized by and listed in the United States Army FM on
Intelligence Interrogation.
The only authorized interrogation techniques are those listed
in FM 2-22.3. The interrogation approaches and techniques
contained in FM 2-22.3 comply with the law and are well within
the humane treatment requirements of Common Article 3. The DOD
determined that these were the correct set of techniques for
DOD use.
54. Senator Kennedy. Secretary England, has any country in the
world that is a party to the Geneva Conventions ever passed a law or
promulgated a policy that denies the application of Common Article 3 to
any detainee captured as part of an armed conflict?
Secretary England. I do not know.
______
Questions Submitted by Senator Daniel K. Akaka
enemy combatant
55. Senator Akaka. Attorney General Gonzales, one of the questions
that will need to be addressed by Congress is the definition of who is
an enemy combatant. How broad do you believe the proposed legislation
should be with regard to who can be tried and detained as an enemy
combatant?
Mr. Gonzales. Since I testified, Congress has enacted the MCA of
2006. The new law permits the trial by military commission only of
alien unlawful enemy combatants. American citizens and lawful prisoners
of war may not be prosecuted by military commission. The MCA defines
``unlawful enemy combatant'' as ``a person who has engaged in
hostilities or who has purposefully and materially supported
hostilities against the United States or its cobelligerents who is not
a lawful enemy combatant (including a person who is part of the
Taliban, al Qaeda, or associated forces).'' 10 U.S.C. 948a(1). In
addition, an individual determined to be an unlawful enemy combatant
through the decision of a Combatant Status Review Tribunal or other
competent tribunal would be considered an unlawful enemy combatant by
the military commission. This definition will permit the United States
to prosecute those who engage in terrorist attacks against the United
States and those who purposefully and materially make such attacks
possible.
56. Senator Akaka. Attorney General Gonzales, do you recommend
permitting the detention of U.S. citizens for unspecified periods if
they are believed to be supportive or associated with enemy combatants?
Mr. Gonzales. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the
Supreme Court held that American citizens who support al Qaeda in
violation of the law of war may be held as enemy combatants for the
duration of ongoing hostilities. The United States needs to have the
capability to detain these individuals outside of the criminal justice
system so as to prevent them from participating in future terrorist
attacks or from returning to battlefields in Iraq, Afghanistan, and
elsewhere. Of course, American citizens who take up arms in support of
al Qaeda are likely to have violated numerous Federal laws. Although
the MCA does not make such individuals triable by military commission,
see 10 U.S.C. 948b(a), they may be prosecuted in Federal court for
criminal offenses, and we support such prosecutions.
military tribunals
57. Senator Akaka. Attorney General Gonzales, Article I, Section 8
of the Constitution which vests Congress with the authority to ``define
and punish . . . offenses against the laws of nations'' has
historically been interpreted to mean that it is Congress, rather than
the President, who has the authority to convene military tribunals. To
what extent, if any, would the proposed legislation depart from this
interpretation by defining the power to convene military tribunals as
an exercise of presidential authority?
Mr. Gonzales. We disagree. Congress has the constitutional
authority to ``define and punish . . . Offenses against the Law of
Nations,'' but Presidents and military commanders have traditionally
been responsible for convening military commissions. George Washington,
Abraham Lincoln, and Franklin Delano Roosevelt all convened military
commissions in the course of executing their roles as Commander in
Chief. Congress, in enacting the law now codified as Article 21 of the
UCMJ, specifically recognized that the creation of the courts-martial
system did not deprive the executive of the ability to convene military
commissions to try enemy combatants. The Supreme Court, in Ex parte
Quirin, 317 U.S. 1 (1942), upheld the constitutionality of military
commissions convened by presidential order.
The MCA reflects the first time in our Nation's history that
Congress has established a detailed statutory regime for military
commissions. In light of the Supreme Court's decision in Hamdan, we
believe that it was entirely appropriate for Congress to do so. But at
the same time, the MCA recognizes and preserves the Executive's role in
convening the military commissions authorized under the new law, and
thus the MCA appropriately reflects the Constitution's allocation of
powers in this area.
global war on terror
58. Senator Akaka. Secretary England, in order to effectively
combat the global war on terror, we need to have an effective system of
military justice which will be able to withstand the close judicial
scrutiny and, I believe, international law. What precautions have you
taken in drafting your proposed legislation to ensure that it will meet
the basic legal standards as outlined in the Supreme Court's Hamdan
decision?
Secretary England. The United States military justice system is the
finest military justice system in the world. We are confident that the
inclusion of chapter 47A to title 10 and its implementing regulations
meet all of the requirements of the Hamdan decision while including
specific rules tailored to the unique nature of the conflict and our
need to protect national security.
[Whereupon, at 4:37 p.m., the committee adjourned.]