[Senate Hearing 107-513]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-513
 
  DEPARTMENT OF DEFENSE'S IMPLEMENTATION OF THE PRESIDENT'S MILITARY 
   ORDER ON DETENTION TREATMENT AND TRIAL BY MILITARY COMMISSION OF 
              CERTAIN NONCITIZENS IN THE WAR ON TERRORISM 

=======================================================================

                                HEARING

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 12, 2001

                               __________

         Printed for the use of the Committee on Armed Services

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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

EDWARD M. KENNEDY, Massachusetts     JOHN WARNER, Virginia
ROBERT C. BYRD, West Virginia        STROM THURMOND, South Carolina
JOSEPH I. LIEBERMAN, Connecticut     JOHN McCAIN, Arizona
MAX CLELAND, Georgia                 BOB SMITH, New Hampshire
MARY L. LANDRIEU, Louisiana          JAMES M. INHOFE, Oklahoma
JACK REED, Rhode Island              RICK SANTORUM, Pennsylvania
DANIEL K. AKAKA, Hawaii              PAT ROBERTS, Kansas
BILL NELSON, Florida                 WAYNE ALLARD, Colorado
E. BENJAMIN NELSON, Nebraska         TIM HUTCHINSON, Arkansas
JEAN CARNAHAN, Missouri              JEFF SESSIONS, Alabama
MARK DAYTON, Minnesota               SUSAN COLLINS, Maine
JEFF BINGAMAN, New Mexico            JIM BUNNING, Kentucky

                     David S. Lyles, Staff Director

               Judy A. Ansley, Republican Staff Director

                                  (ii)

  




















                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

  Department of Defense's Implementation of the President's Military 
   Order on Detention Treatment and Trial by Military Commission of 
              Certain Noncitizens in the War on Terrorism

                           december 12, 2001

                                                                   Page

Wolfowitz, Hon. Paul D., Deputy Secretary of Defense.............     9
Haynes, Hon. William J., II, General Counsel, Department of 
  Defense........................................................    15

                                 (iii)


  DEPARTMENT OF DEFENSE'S IMPLEMENTATION OF THE PRESIDENT'S MILITARY 
   ORDER ON DETENTION TREATMENT AND TRIAL BY MILITARY COMMISSION OF 
              CERTAIN NONCITIZENS IN THE WAR ON TERRORISM

                              ----------                              


                      WEDNESDAY, DECEMBER 12, 2001

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:34 a.m. in room 
SR-325, Russell Senate Office Building, Senator Carl Levin 
(chairman) presiding.
    Committee members present: Senators Levin, Kennedy, 
Lieberman, Cleland, Landrieu, Reed, Akaka, Bill Nelson, Ben 
Nelson, Dayton, Bingaman, Warner, McCain, Smith, Inhofe, 
Allard, Sessions, and Collins.
    Committee staff members present: David S. Lyles, staff 
director; Christine E. Cowart, chief clerk; and Bridget M. 
Whalan, special assistant.
    Majority staff members present: Richard D. DeBobes, 
counsel; Evelyn N. Farkas, professional staff member; Maren 
Leed, professional staff member; Gerald J. Leeling, counsel; 
Peter K. Levine, general counsel; and Arun A. Seraphin, 
professional staff member.
    Minority staff members present: Judith A. Ansley, 
Republican staff director; Charles W. Alsup, professional staff 
member; Edward H. Edens IV, professional staff member; William 
C. Greenwalt, professional staff member; Carolyn M. Hanna, 
professional staff member; Mary Alice A. Hayward, professional 
staff member; George W. Lauffer, professional staff member; 
Patricia L. Lewis, professional staff member; Ann M. 
Mittermeyer, minority counsel; Scott W. Stucky, minority 
counsel; and Richard F. Walsh, minority counsel.
    Staff assistants present: Dara R. Alpert, Daniel K. 
Goldsmith, Jennifer Key, and Nicholas W. West.
    Committee members' assistants present: Frederick M. Downey, 
assistant to Senator Lieberman; Andrew Vanlandingham, assistant 
to Senator Cleland; Marshall A. Hevron and Jeffrey S. Wiener, 
assistants to Senator Landrieu; Elizabeth King, assistant to 
Senator Reed; Davelyn Noelani Kalipi, assistant to Senator 
Akaka; William K. Suley, assistant to Senator Bill Nelson; Eric 
Pierce, assistant to Senator Ben Nelson; Brady King, assistant 
to Senator Dayton; Wayne Glass, assistant to Senator Bingaman; 
Christopher J. Paul, assistant to Senator McCain; Margaret 
Hemenway, assistant to Senator Smith; J. Mark Powers, assistant 
to Senator Inhofe; George M. Bernier III, assistant to Senator 
Santorum; James Beauchamp, assistant to Senator Roberts; 
Douglas Flanders, assistant to Senator Allard; Arch Galloway II 
and Rick Dearborn, assistants to Senator Sessions; Kristine 
Fauser, assistant to Senator Collins; and Derek Maurer, 
assistant to Senator Bunning.

       OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

    Chairman Levin. Good morning, everybody. The committee 
meets this morning to receive testimony from the Department of 
Defense on the Department's plans to implement the President's 
military order of November 13, 2001. The President's military 
order relates to the detention, treatment, and trial by 
military commissions of certain non-citizens in the war against 
terrorism. Secretary Rumsfeld has been designated by the 
President to develop orders and regulations to carry out that 
military order. Last week, the Attorney General referred many 
questions from the Judiciary Committee about rules and 
procedures for the military commissions to the Department of 
Defense.
    The military order was issued by the President in the 
aftermath of, and in response to, the horrendous terrorist 
attacks on September 11 of this year. Congress, on September 
14, authorized the use of all necessary and appropriate force 
against those nations, organizations, or persons that planned, 
authorized, committed, or aided those terrorist attacks or 
harbored such persons or organizations.
    The United Nations Security Council, at the urging of the 
United States, reacted to those terrorist attacks by calling on 
all states to work together urgently to bring to justice the 
perpetrators, organizers, and sponsors of these terrorist 
attacks and stresses, in the words of the United Nations 
resolution, that ``those responsible for aiding, supporting, or 
harboring the perpetrators, organizers, and sponsors of these 
acts will be held accountable.''
    On September 11, the North Atlantic Council released a 
statement that, among other things, said, ``Our message to the 
people of the United States is that we are with you. Our 
message to those who perpetrated these unspeakable crimes is 
equally clear: you will not get away with it.'' For the first 
time in its history, NATO invoked article 5 of the Washington 
Treaty, which states that an armed attack on one or more of the 
allies in Europe or North America shall be considered an attack 
on them all.
    Today, NATO AWACs aircraft are flying patrols over the 
United States to assist our armed forces in protecting the 
United States. Heads of government and state have visited the 
White House to express support for the United States and to 
pledge their cooperation to bring to justice the perpetrators, 
organizers, and sponsors of the terrorist attacks.
    In light of the extraordinary support from the 
international community, support which I believe reflects a 
recognition of and appreciation for the United States' core 
values of democracy, freedom, tolerance, and respect for due 
process, I believe that we should work to ensure that the 
manner in which the military commissions are carried out will 
not undercut either those core values or that international 
support. We should also work to ensure that the way in which 
the military commissions operate does not jeopardize the 
standing of the United States to object to unfair conduct by 
military tribunals of other nations toward U.S. citizens--for 
example, the secret trials without access to states evidence by 
a Peruvian military court. Finally, we should work to ensure 
the military commissions will operate in a manner that doesn't 
cause other nations, including our allies, to refuse to 
extradite suspected terrorists to the United States because of 
the alleged lack of due process provided by such commissions.
    I believe there is an appropriate role for military 
commissions. They have a long history going back, in one form 
or another, to George Washington, but they must be used wisely, 
and they must provide for the basic rights for the individuals 
tried before them so that we do not violate our fundamental 
values of fairness and due process, values that this Nation has 
always stood for and values for which American service men and 
women have risked their lives.
    A careful reading of the President's military order raises 
a number of issues. The scope of coverage is broad, since it 
includes both past and future acts, and there's no apparent 
time limit and no definition of terrorism. The order says that 
it applies not just to, ``violations of the laws of war'', but 
also to violations of, ``other applicable laws''. The Attorney 
General, in his testimony before the Judiciary Committee last 
week, said that it would apply only to individuals who 
committed war crimes. White House Counsel Alberto Gonzales made 
a similar statement. But the President's military order reads 
otherwise. There are also many questions about the conduct of 
the trials before the military commissions.
    Before I get into some of those questions, I want to 
clarify one matter. A number of people, the White House counsel 
included, have equated military commissions with our system of 
military justice, including courts-martial. This committee has 
jurisdiction over the Uniform Code of Military Justice, which 
is found in Title 10 of the United States Code. There is a 
difference between the high level of protections afforded our 
military personnel tried before courts-martial where the 
evidentiary rules and burden of proof are virtually identical 
to those in our Federal district courts, and the procedural 
protections for individuals tried before military commissions. 
Speaking of them in the same breath creates an erroneous 
impression about both.
    The United States Code itself provides that the principles 
of law and the rules of evidence that are generally recognized 
in the Federal trial of criminal cases should apply to military 
commissions only so far as the President considers practicable. 
President Bush has already made an affirmative finding in his 
order that such is not practicable. But what he does require is 
that the rules and regulations issued by the Secretary of 
Defense shall, ``at a minimum, provide for . . . a full and 
fair trial.'' The Secretary of Defense's task, then, is to 
establish the rules and procedures to assure a full and fair 
trial.
    One of our objectives today is to explore what some of 
those rules and procedures should include. For instance, does 
it include the accused's right to present witnesses? Does a 
full and fair trial provide for the presumption of innocence? 
Does it provide, for the accused's right to select his own 
counsel or to have assigned counsel, for those who cannot 
afford one? Does a full and fair trial necessitate a unanimous 
vote for the imposition of a death penalty?
    Under President Bush's military order, conviction and 
sentencing can occur on a two-thirds vote of a majority being 
present. In a 5-person commission with a majority of three 
members present, that could require a vote of only two of the 
members of the commission. Can that be tightened by the 
Secretary of Defense should he determine to do so?
    Does a full and fair trial provide for habeas corpus? The 
Attorney General told the Judiciary Committee that habeas 
corpus would be available to a person tried by a military 
commission sitting in the United States. White House Counsel 
Gonzalez has written that the President's order, ``preserves 
judicial review in civilian courts''. But the President's order 
itself states that, ``an individual shall not be privileged to 
seek any remedy or maintain any proceeding . . . in any court 
of the United States, or any state thereof.'' We need to hear 
how these seemingly conflicting positions are going to be 
resolved.
    Some have suggested that it is aiding terrorists or 
diminishing our resolve or eroding national unity to discuss 
the need for fundamental due process in military tribunals. 
Quite the contrary. What this country is about and what the 
President's announced intent to bring terrorists to justice was 
about are values of due process and justice. I hope the 
Secretary of Defense will welcome constructive discussion of 
the issues that he must grapple with in designing procedures 
for military commissions.
    Public discussion about how best to dispense justice can 
make the outcome stronger. It will help assure that military 
commissions will stand the test of time so that we don't look 
back with regret at how we handled these critical issues in the 
crucible in which we find ourselves.
    The bottom line for me is this. Military commissions have a 
role when our Nation is attacked and civilians are deliberately 
targeted in violation of the laws of war. If the rules adopted 
by the Secretary of Defense provide for a fundamental level of 
due process, it will be recognized as such by the civilized 
nations of the world. These military commissions will not only 
dispense prompt results, but just results, which, in turn, will 
enhance the status of the United States as the standard-bearer 
for democracy, respect for human rights and human liberty.
    Senator Warner.

                STATEMENT OF SENATOR JOHN WARNER

    Senator Warner. Thank you, Mr. Chairman. Your bottom line, 
I think, frames the issues before us. I would only add that the 
President of the United States, who has brilliantly and 
courageously executed this military operation to date, will 
continue to see that his cabinet officers, primarily the 
Secretary of Defense, who's represented here today by a very 
distinguished Deputy Secretary of Defense, will formulate those 
regulations in such a way as to preserve the absolutely 
essential fundamental due process to which you referred. We 
must do this if we are to continue in this war against 
terrorism and have the vital support that is necessary of 
coalition nations joining in these efforts.
    This is a clear example of the constitutional authority of 
a President of the United States in the time of war. It goes 
way back into the history of our Nation. Many other Presidents 
faced with comparable situations have exercised their 
constitutional right to establish these tribunals.
    Now, the Department of Defense, thus far, is proceeding, in 
my judgement, very carefully and very thoroughly to devise 
these regulations, consulting with other departments and 
agencies of the Federal Government and reaching outside of 
government to receive the benefit of counsel from those who 
have had long careers in law and who have spent their lifetime 
ensuring due process for others. I hope, at some eventual time, 
the Secretary of Defense can share with the public those many 
distinguished scholars and others who have worked with you in 
this challenge.
    The use of the military commissions and courts martial are 
the most widely accepted venues for enforcing violations of the 
law of war, a body of law virtually unknown to the average 
citizens here in our Nation, but nevertheless, well established 
international law within our own jurisprudence.
    The events of September 11 that resulted in the murder of 
thousands of our innocent--and I repeat, innocent--American 
civilians and many others from over 80 nations, were acts of 
war against the United States and against the whole civilized 
world. The United Nations and NATO have endorsed the United 
States' right to use military force in self defense. Congress 
has authorized the use of force. We are in a war, and we will 
follow through and conclude these military operations at some 
time in the indefinite future. But in the meantime, it is 
incumbent upon our President to begin to lay the foundation for 
bringing to the courts of justice those who are identified as 
perpetrators of these crimes.
    Mr. Chairman, we are privileged on this committee to have 
several members of the Judiciary Committee of the United States 
Senate. That committee has done a good deal of work on this 
issue, including four hearings. On our side, we have Senator 
Sessions. I'm going to ask that my statement be incorporated 
into the record and yield a few minutes to him with my 
concluding remark. This Nation is faced with perhaps the most 
serious challenge in contemporary America to balance due 
process, freedom, civil liberties, all of those things we hold 
most dearly, against the need to bring to justice, in a sense 
of fairness, those who are identified as the perpetrators of 
this series of crimes. We will achieve that, I am confident.
    [The prepared statement of Senator Warner follows:]
               Prepared Statement by Senator John Warner
    Thank you, Senator Levin. I join you in welcoming our distinguished 
witnesses, who will provide testimony and clarification on how the 
Department of Defense plans to implement the President's recent 
Military Order on military commissions. This is the first in what I 
expect to be a series of hearings by this committee to exercise our 
oversight regarding the use of these military commissions.
    To be very clear, we are talking about trials for the terrorists 
who carried out the horrific attacks of September 11, and those who 
aided them. The United States was attacked, with grievous loss of life, 
by a hostile foreign force. The terrorists declared war on the United 
States on September 11, and the President has responded with the full 
and appropriate force and power of the United States.
    The events of September 11 were clearly acts of war. These attacks 
intentionally targeted civilians and sought to cause indiscriminate 
death and destruction clear violations of the law of war (i.e., the 
internationally accepted laws governing the conduct of military 
operations). The military order of November 13 establishing military 
commissions to try these terrorists is a logical next step.
    The precedents for the use of such commissions date back to the 
formative days of our Republic and extend through their most recent use 
at the conclusion of World War II. The Supreme Court has repeatedly 
upheld the constitutionality of using military commissions to prosecute 
individuals charged with violations of the law of war. In one such 
ruling, the Supreme Court explained. ``Since our Nation's earliest 
days, such commissions have been constitutionally recognized agencies 
for meeting many urgent governmental responsibilities related to war.''
    Clearly, the establishment of such commissions is within the 
constitutional authorities granted the President. In addition, title 10 
of the U.S. Code affirms the President's authority to employ military 
tribunals and establish rules for their guidance.
    The congressional role in this process is one of oversight; of 11 
ensuring that the procedures established for the conduct of these 
commissions are comprehensive, appropriate to current circumstances and 
fair. We begin that oversight this morning.
    Each circumstance under which a military commission has been used 
in the past has been different, requiring the establishment of unique 
rules and procedures. There will be no difference this time. I am 
confident the Department understands its responsibilities in this 
regard, and will propose guidelines that will meet the moral and legal 
standards this Nation expects and so steadfastly defends, at home and 
around the world.
    Military commissions and courts-martial are the most widely 
accepted venues for enforcing violations of the law of war. The events 
of September 11 that killed approximately 4,000 civilians from over 80 
nations were acts of war against the United States, and against the 
civilized world. The United Nations has endorsed the United States' 
right to use military force in self-defense, and Congress has 
authorized the use of force.
    That we are at war against foreign terrorists that disregard the 
most fundamental principles of morality and law cannot be disputed. 
Such times demand that we utilize all means at our disposal to defend 
our Nation, ensure the welfare of our citizens and preserve our 
liberties.
    I thank our witnesses for the opportunity to discuss this important 
subject today. I look forward to working with you and my colleagues in 
Congress as we discuss how best to ensure that justice is done in a 
timely, prudent, and fair manner. Thank you.

    So, Mr. Sessions, if you'd take the balance of my time. 
Thank you for your work on this subject.

               STATEMENT OF SENATOR JEFF SESSIONS

    Senator Sessions. Thank you, Mr. Chairman and Mr. Ranking 
Member, and I thank you for your remarks because we're talking 
about some matters of real importance. I thought it would be 
valuable, Senator Warner, to recapitulate some of the things 
that have occurred already.
    There have been four hearings in the Judiciary Committee, 
one before the full Judiciary Committee, in which Mr. Michael 
Chertoff, the Assistant Attorney General, Criminal Division, 
answered questions concerning all matters dealing with the 
Nation's response to these terrorist attacks, including 
military commissions. Then we had a subcommittee hearing with 
Senator Schumer, where I'm the ranking member, and it dealt 
solely with the military commission. I think we had a lot of 
extreme comments early on about what was right and legal and 
proper.
    I think after that hearing, all of us concluded that there 
was a firm constitutional and historical and legal basis for 
military commissions and even liberal professors, such as 
Laurence Tribe and Cass Sunstein, both affirmed their belief 
that a military commission is a legitimate way to deal with 
illegal combatants in a time of war.
    Senator Feingold also had a hearing that I participated in 
on issues relating to the terrorist attacks. Then we had a full 
committee hearing of about 4 hours with the Attorney General in 
which he answered all kinds of questions dealing with this 
entire matter.
    I felt like, after that, many of the concerns had been 
allayed. Many of the fears that some people initially expressed 
had been satisfied, and the procedures that were ongoing, when 
clearly studied, were the kind of procedures we can be proud 
of.
    So I think, at this point, the military commission is 
legitimate. I think it's appropriate that the Department of 
Defense be working on the procedures to conduct those. The 
Uniform Code of Military Justice (UCMJ) that we authorized in 
this Congress specifically gives the President the power to set 
the procedures for a military commission. Ultimately, they'll 
have to be fair. The Department of Defense will have to be sure 
these trials are conducted fairly.
    But I think we would do well to recognize that this Senate 
really isn't in a position to draft specific procedures for 
military trials under these circumstances. We should let the 
Defense Department do that and evaluate them as they go 
forward.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Sessions. Senator 
Kennedy, of course, is also on the Judiciary Committee. In 
chatting with Senator Warner here, we thought it would be 
appropriate also for Senator Kennedy to speak, should he 
desire. Then we're going to go to our witnesses, and then come 
back to an 8-minute round of questions.

             STATEMENT OF SENATOR EDWARD M. KENNEDY

    Senator Kennedy. Thank you. First of all, I think any of us 
who are meeting today are once again mindful, as our two chairs 
have said, about thanking you, Mr. Secretary, and through you, 
the military forces of our country that are doing such a superb 
job. I think all Americans feel that way. It's just one more 
expression of that feeling. Second, thank you very much for 
being here to discuss this topic.
    As a member of the Judiciary Committee, and also the Armed 
Services Committee, the two committees' interest in justice and 
also the pursuit of those that are violating our laws are best, 
I think, illustrated by this morning's announcement that the 
Justice Department will go ahead with Zacarias Moussaoui and 
try him in a Federal court. That's in the Judiciary Committee's 
jurisdiction; military tribunals are in this committee. We're 
talking about a person that is going to be charged with the 
kinds of crimes that threaten the lives of American citizens. 
That decision is a clear expression of the administration's 
confidence in the Federal courts and where all the rights and 
protections will be accorded to the defendant in that.
    We are now considering military tribunals. We're going to 
be interested in what protections are going to be there, in 
terms of those that will be under the military tribunals, in 
defining how the administration is going to make the judgments 
between one and the other.
    I think that this decision by the Justice Department is 
enormously significant. At a time in your comments, I'd hope 
you would express whether you supported that decision and how 
you evaluated that decision, what the considerations were in 
your own mind about why that order has gone to the Federal 
courts as compared to going to the military court. I think 
these illustrations of the military tribunal, which we'll be 
discussing today, the decision to try one of the leading 
terrorists in a Federal court illustrates at least the 
challenges that we're going to be faced with. I will be 
enormously interested, as one who has prime interest and 
responsibility in both of these areas, to hear your views about 
this.
    Thank you, Mr. Chairman. I would ask that my full statement 
by made a part of the record.
    [The prepared statement of Senator Kennedy follows:]
            Prepared Statement by Senator Edward M. Kennedy
    All of us are proud of the men and women of our Armed Forces for 
all they've done and, all they are doing for our country. Our service 
men and women are courageously answering the call to defend our country 
and preserve our freedom, and we owe them our strongest possible 
support.
    Here at home, Americans today are more united than ever in our 
commitment to win the war on terrorism and protect the country for the 
future. An essential part of meeting this challenge is protecting the 
ideals that America stands for in this country and around the world.
    I continue to have serious concerns about the President's order on 
military tribunals. The Constitution gives Congress the power to define 
and punish ``offences against the law of nations,'' and to create 
courts inferior to the Supreme Court. Yet Congress has not expressly 
authorized the kind of military tribunals in the President's order.
    The Military Order is excessively broad. It could potentially 
affect 20 million lawful resident aliens in the United States. It 
applies not only to suspected members of al Qaeda, but also to people 
not suspected of any involvement in the September 11 attacks. It 
authorizes military tribunals to try individuals not only for war 
crimes, but also for violations of other unspecified laws. While the 
order requires ``full and fair trials,'' it does not explain what 
``full and fair'' means. It allows completely secret trials, conducted 
outside the established rules of military justice. It states that 
defendants ``shall not be privileged'' to appeal their convictions and 
sentences to any state, Federal, or international court.
    In its current form, the order is inconsistent with principles of 
justice that the United States has advocated internationally. Over the 
years, our government has opposed military tribunals in other nations 
because of their failure to provide adequate due process.
    The State Department's most recent human rights report criticized 
the use of military courts in Peru in the case of Lori Berenson, an 
American who was tried for terrorism by a secret military tribunal. As 
the report stated, ``Proceedings in these military courts . . . do not 
meet internationally accepted standards of openness, fairness, and due 
process.''
    On the use of military tribunals to try accused terrorists in 
Egypt, the State Department said that the ``use of military and State 
Security Emergency courts . . . has deprived hundreds of civilian 
defendants of their constitutional rights to be tried by a civilian 
judge. . . . [T]he military courts do not ensure civilian defendants 
due process before an independent tribunal.''
    The United States, by authorizing secret military tribunals now, 
without fundamental due process guarantees in place, may be accused of 
a double standard. The order may also limit our ability to extradite 
terrorist suspects apprehended by our allies.
    Given the broad scope of the original military order, even if it's 
narrowed now, I'm concerned that it will be used by other countries to 
justify secret military tribunals and avoid basic due process 
safeguards. It can undermine America's credibility in criticizing 
secret military tribunals in other countries. Our military tribunals 
may never be seen as legitimate by other countries.
    The Secretary of Defense has been given the responsibility of 
drafting rules for the tribunals. By narrowly defining the scope of the 
tribunals' use and providing basic due process safeguards, the 
Secretary can do much to ease the serious concerns about the 
President's order. I urge the Secretary to include the following 
safeguards to identify the guilty and protect the innocent:

         an independent and impartial tribunal
         the presumption of innocence
         proof ``beyond a reasonable doubt''
         open and public trials, with exceptions only for 
        demonstrable reasons of national security or public safety
         representation by independent and effective counsel
         the right to examine and challenge evidence offered by 
        the prosecution
         the right to present evidence of innocence
         the right to cross-examine adverse witnesses and to 
        offer witnesses
         fixed, reasonable rules of evidence
         fair appellate review of convictions and sentences

    In preparing rules for military tribunals, the Department has an 
excellent model--the Uniform Code of Military Justice. As White House 
Counsel Alberto Gonzales recently wrote, the ``American military 
justice system is the finest in the world.'' There is no reason now to 
depart substantially from established principles of military justice.
    It is also important to apply the military order narrowly. It may 
make sense to use military tribunals to try members of al Qaeda who are 
captured in Afghanistan and are suspected of war crimes. It would be a 
mistake, however, for military tribunals to replace our existing system 
of criminal justice here in the United States. Testifying before the 
Judiciary Committee 2 weeks ago, Assistant Attorney General Michael 
Chertoff testified that he had complete faith in the ability of Federal 
criminal courts to try terrorist cases. He stated:

        I have to say that the history of this government in 
        prosecuting terrorists in domestic courts has been one of 
        unmitigated success and one in which the judges have done a 
        superb job of managing the courtroom and not compromising our 
        concerns about security and our concerns about classified 
        information.

    I'm encouraged by the Justice Department's announcement yesterday 
that it has obtained an indictment against suspected terrorist Zacarias 
Moussaoui in Federal court. To the fullest extent possible, we should 
use our domestic courts to try terrorists, and let the military focus 
on what it does best--protecting our country and our freedoms.

    Chairman Levin. Thank you, Senator Kennedy. Now, Secretary 
Wolfowitz, we turn to you. Thank you for coming, and, again, we 
all join Senator Kennedy's sentiments about the extraordinarily 
brilliant manner in which this matter has been handled, 
militarily. We thank you. We thank the Secretary and his staff 
for their total commitment and focus on prevailing, and, of 
course, the men and women of our military for their truly 
superb operations.

   STATEMENT OF HON. PAUL D. WOLFOWITZ, DEPUTY SECRETARY OF 
                            DEFENSE

    Secretary Wolfowitz. Since thanks are due here, I think 
thanks are due to the committee and to Congress for the great 
support they've given to the Defense Department over the years 
and particularly in recent months in this war effort. As every 
one has indicated, I think most of all we, as a Nation, are 
indebted to the brave men and women in uniform who have been 
conducting this operation brilliantly and bravely and, so far, 
quite successfully, although there's a lot more work to do.
    Mr. Chairman, I'm not sure I've ever delivered a statement 
that is the testimony of the Secretary of Defense as well as 
myself, but that is what I'm doing this morning. Secretary 
Rumsfeld had very much hoped to be here this morning, but 
unfortunately he had a National Security Council meeting and 
was prevented from attending. He and I prepared this statement, 
which he had intended to deliver this morning, and which I 
would now like to present to the committee, but I would like to 
have the record reflect that it is a statement from both the 
Secretary and myself.
    Also, I have with me General Counsel of the Department of 
Defense, Jim Haynes, who, unlike myself, is a lawyer and can 
answer some of your questions much better than I will be able 
to.
    Mr. Chairman, on September 11, Americans found their Nation 
under attack. Terrorist hijacked civilian airliners, turned 
them into missiles, and used them to kill thousands of innocent 
Americans--men, women, and children--as well as people from 
dozens of nations.
    Today, 3 months after the attack, the ruins of the World 
Trade Towers are still burning, and bodies are still being 
pulled from the wreckage. Over the weekend, the remains of 20 
more were recovered--5 firefighters, 2 policemen, and a group 
that had been trapped in a stairwell as they tried to escape 
the collapsing tower. Their families will now be able to bury 
them, but many hundreds of families who lost loved ones--
mothers and father, husbands and wives, sisters and brothers, 
sons and daughters--still have not been able to bury their dead 
and possibly never will.
    It is still difficult to fathom the enormity of what 
happened on September 11. As time passes and the fires finally 
burn out, Americans will eventually recover from the shock and 
horror of what befell our Nation that day. But those who are 
responsible for our national defense must not lose sight of the 
fact that these are not normal times. We have been attacked. We 
are at war. We must take the steps necessary to defend out 
people and to protect them from further harm.
    The September 11 attacks were acts of war. The people who 
planned and carried out these attacks are not common criminals. 
They are foreign aggressors, vicious enemies whose goal was and 
remains to kill as many innocent Americans as possible. Let 
there be no doubt, they will strike again unless we are able to 
stop them. We have no greater responsibility as a Nation than 
to stop these terrorists, to find them, to root them out, and 
to prevent them from murdering more of our citizens.
    To accomplish that objective, the President is marshaling 
every tool at his disposal--military, diplomatic, financial, 
economic. He is working to freeze the assets of terrorist 
leaders and organizations that sponsor and finance terror. He 
is working with foreign governments to shut down the terrorist 
networks that operate in dozens of countries across the world. 
He has sent brave Americans to Afghanistan--courageous 
soldiers, sailors, airmen, and marines--who at this moment are 
risking their lives to stop the al Qaeda terrorist network and 
the Taliban that seek to kill our people.
    This is not a law-enforcement action. It is war. We seek to 
destroy or defeat our terrorist enemies so they cannot harm 
Americans. When coalition forces storm the Taliban compound or 
an al Qaeda safe-house, they cannot ask for a search warrant. 
When they confront Taliban or al Qaeda fighters in the caves 
and shadows where they hide, they are in combat. Their 
objective is to stop the terrorists and prevent them from 
continuing to threaten our country.
    The U.S. military is doing this in Afghanistan, and they 
are doing it extremely well. But the terrorists who threaten us 
are not only in Afghanistan. They operate in dozens of 
countries, including the United States. They are unlawful 
belligerents, adversaries who attacked our Nation in 
contravention of the rules of war, and the President has made 
it clear that we will hunt them down wherever they hide.
    When enemy forces are captured, wherever they are captured, 
they must then be dealt with. There a number of tools at the 
country's disposal for doing so. One of those tools is the 
establishment of the Military War Crimes Commission. The 
President, as Commander in Chief, has issued a military order 
that would permit individual non-U.S. citizens to be tried by 
military commission. As yet, he has not designated anyone to be 
tried by such a commission. He may do so. He may not.
    To prepare for the possibility that he may do so, the 
Department of Defense is developing appropriate procedures for 
such commissions. We are in the process of developing those 
procedures. We are consulting a wide variety of individuals and 
experts inside and outside of government to discuss how such 
commissions should operate and how they have operated in the 
past. We are working to establish rules of procedure that will 
ensure, in the event that the President decides to designate a 
non-U.S. citizen to be tried by a military commission--and I 
would underscore that he has not yet designated anyone to be 
tried in this manner, and that it would only apply to non-U.S. 
citizens--but should he decide to designate a non-U.S. citizen 
to be tried by a military commission, it will be handled in a 
measured, balanced, and thoughtful way that reflects our 
country's values.
    Military commissions have been used in times of war since 
the founding of this Nation. George Washington used them during 
the Revolutionary War. Abraham Lincoln used them during the 
Civil War. President Franklin Roosevelt used them during World 
War II. During and following World War II, we did not bring 
German and Japanese war criminals to the United States for 
trial in civilian courts. We tried them by military 
commissions. In Germany, we prosecuted 1,672 individuals for 
war crimes before U.S. military commissions. Convictions were 
obtained in 1,416 cases. In Japan, we tried 996 suspected war 
criminals before military commissions, of which 856 were 
convicted.
    These conviction rates, you will note, are not out of line 
with normal non-military commission outcomes. Indeed, they are 
lower than the felony conviction rate in the U.S. Federal 
courts last year.
    When eight Nazi saboteurs landed on our coast in 1942, with 
the intention and purpose of destroying American industrial 
facilities, they were tried by military commission. Indeed, in 
that case, the Supreme Court upheld the constitutionality of 
military commissions. In the case of Ex parte Quirin, the court 
ruled unanimously, in an eight-to-zero decision, that the trial 
of the Nazi saboteurs by a military commission without a jury 
was indeed constitutional, declaring, in the court's words, 
``unlawful combatants...are subject to punishment by military 
tribunals for acts which render their belligerency unlawful.''
    Further, the U.S. Congress also recognized the use of 
military commissions after World War II, when it passed the 
Uniform Code of Military Justice in 1950. It included statutory 
language preserving the jurisdiction of military commissions. 
So all three branches of the U.S. Government have endorsed the 
use of military commissions.
    Mr. Chairman, our ability to bring justice to foreign 
terrorists is critical to our ability to defend the country 
against future terrorist threats. Moreover, it is well 
established that a foreign national who is engaged in armed 
conflict against the United States has no constitutional claim 
to the rights and procedures that would apply to a domestic 
criminal prosecution.
    Furthermore, there are a number of compelling reasons for 
using military commissions instead of civilian courts to try 
unlawful belligerents in times of war. First, by using military 
commissions, we can better protect civilian judges, jurors, and 
courts from terrorist threats and assure the security of the 
trial itself. Because of the ongoing threat from terrorists, 
the risks to jurors are of a kind that military officers are 
trained and prepared to confront, but that are not normally 
imposed on jurors in civilian trials. Indeed, the judge who 
handled the trial for the first World Trade Center attack, the 
1993 attack, is still under 24-hour protection by Federal 
marshals and probably will be for the rest of his life.
    It is also important to avoid the risk of terrorist 
incidents, reprisals, or hostage-takings during an extended 
civilian trial. Moreover, appeals or petitions for habeas 
corpus could extend the process for years. Military commissions 
would permit speedy, secure, fair, and flexible proceedings in 
a variety of locations that would make it possible to minimize 
these risks.
    Second, Federal rules of evidence often prevent the 
introduction of valid factual evidence for public-policy 
reasons that have no application in a trial of a foreign 
terrorist. By contrast, military tribunals can permit more 
inclusive rules of evidence, flexibility which could be 
critical in wartime when it may be difficult, for example, to 
establish chains of custody for documents or to locate 
witnesses. Military commissions allow those judging the case to 
hear all probative evidence, including evidence obtained under 
conditions of war, evidence that could be critical to obtaining 
a conviction.
    Third, military commissions can allow the use of classified 
information without endangering sources and methods. This point 
is critical. During the course of a civilian trial, prosecutors 
could be faced with a situation where in order to secure a 
conviction, they would have to use classified information that 
would expose how the U.S. monitors terrorist activities and 
communications. They could be forced to allow terrorists to go 
free or to offer them lighter sentences in order to protect a 
source that is critical to our national security.
    Do we really want to be in the position of choosing between 
a successful prosecution of an al Qaeda terrorist or revealing 
intelligence information, which, if exposed, could reduce our 
ability to stop the next terrorist attack, at a cost of 
thousands more American lives? A military commission can permit 
us to avoid this dilemma. We can protect national security, 
including ongoing military operations in Afghanistan while at 
the same time ensuring a full and fair trial for any 
individuals that might be designated by the President.
    Again, Mr. Chairman, the President has not designated 
anyone, so far, to be tried by military commission, and we have 
not yet concluded or issued regulations or established rules of 
procedure, but we are at war with an enemy that has flagrantly 
violated the rules of war. They do not wear uniforms. They hide 
in caves abroad and among us here at home. They target 
civilians--innocent men, women and children of all races and 
religions--and they intend to attack us again, let there be no 
doubt. They are not common criminals. They are war criminals. 
We must, and we will, defend this country from them.
    Military tribunals are one of many instruments we may use 
to do so. We are confident that we will develop a process that 
Americans will have confidence in and which is fully consistent 
with the principles of justice and fairness our country is 
known for throughout the world. We have a reputation as a 
Nation for dealing fairly in these kinds of matters, and we 
will do so in this case. We will bring justice to the 
terrorists and ensure that the American people can once again 
live their lives in freedom and without fear.
    Mr. Chairman, I believe this hearing and the views of this 
committee can be an important contribution to making sure that 
we achieve those goals, and we appreciate the opportunity to 
testify before you. Thank you.
    [The prepared joint statement of Secretary Rumsfeld and 
Deputy Secretary Wolfowitz follows:]
   Prepared Joint Statement by Donald H. Rumsfeld and Paul Wolfowitz
    Mr. Chairman, Members of the Committee, good morning.
    On September 11, Americans found their Nation under attack. 
Terrorists hijacked civilian airliners, turned them into missiles, and 
used them to kill thousands of innocent Americans--men, women, and 
children--as well as people from dozens of nations.
    Today, 3 months after the attack, the ruins of the World Trade 
Towers are still burning--and bodies are still being pulled from the 
wreckage. Over the weekend, the remains of 20 more were recovered--5 
firefighters, 2 policemen, and a group that had been trapped in a 
stairwell as they tried to escape the collapsing tower. Their families 
will now be able to bury them. But many hundreds of families who lost 
loved ones--mothers and fathers, husbands and wives, sisters and 
brothers, sons and daughters--still have not been able to bury their 
dead . . . and possibly never will.
    It is still difficult to fathom the enormity of what happened on 
September 11. As time passes, and the fires finally burn out, Americans 
will eventually recover from the shock and horror of what befell our 
Nation that day.
    But those who are responsible for our national defense must not 
lose sight of the fact that these are not normal times. We have been 
attacked. We are at war. We must take the steps necessary to defend our 
people, and protect them from further harm.
    The September 11 attacks were acts of war. The people who planned 
and carried out these attacks are not common criminals--they are 
foreign aggressors, vicious enemies whose goal was, and remains, to 
kill as many innocent Americans as possible.
    Let there be no doubt: they will strike again, unless we are able 
to stop them.
    We have no greater responsibility as a Nation, than to stop these 
terrorists--to find them, root them out, and prevent them from 
murdering more of our citizens.
    To accomplish that objective, the President is marshalling every 
tool at his disposal--military, diplomatic, financial, economic. He is 
working to freeze the assets of terrorist leaders and organizations 
that sponsor and finance terror. He is working with foreign governments 
to shut down the terrorist networks that operate in dozens of countries 
across the world. He has sent brave Americans to Afghanistan-courageous 
soldiers, sailors, airmen and marines, who at this moment are risking 
their lives to stop the al Qaeda terrorist network and the Taliban that 
seek to kill our people.
    This is not a law enforcement action. It is war. We seek to defeat 
or destroy our terrorist enemies, so that they cannot harm Americans. 
When coalition forces storm a Taliban compound or an al Qaeda safe 
house, they cannot first ask for a search warrant. When they confront 
Taliban or al Qaeda fighters in the caves and shadows where they hide, 
they are in combat. Their objective is to stop the terrorists and 
prevent them from continuing to threaten our country.
    The U.S. military is doing this in Afghanistan--and they are doing 
it extremely well. But the terrorists who threaten us are not only in 
Afghanistan. They operate in dozens of countries--including the United 
States. They are, and remain, unlawful belligerents, adversaries who 
attacked our Nation in contravention of the rules of war. The President 
has made it clear that we will hunt them down wherever they hide.
    When enemy forces are captured, wherever they are captured, they 
must then be dealt with. There are a number of tools at the country's 
disposal for doing so. One of those tools is the establishment of 
military war crimes commissions.
    The president, as commander in chief, has issued a military order 
that would permit individual non-U.S. citizens to be tried by military 
commission. As yet, he has not designated anyone to be tried by such a 
commission. He may do so; he may not.
    To prepare for the possibility that he may do so, the Department of 
Defense is developing appropriate procedures for such commissions.
    We are in the process of developing these procedures. We are 
consulting a variety of individuals and experts, in and out of 
government, to discuss how such commissions should operate, and how 
they have operated in the past. We are working to establish rules of 
procedure that will ensure, in the event the President decides to 
designate a non-U.S. citizen to be tried by a military commission, that 
it is handled in a measured, balanced, thoughtful way that reflects our 
country's values.
    Military commissions have been used in times of war since the 
Founding of this Nation. George Washington used them during the 
Revolutionary War; They were used during the Civil War; President 
Franklin Roosevelt used them during World War II.
    During and following World War II, we didn't bring German and 
Japanese war criminals to the U.S. for trial in civilian courts. We 
tried them by military commissions. In Germany, we prosecuted 1,672 
individuals for war crimes before U.S. military commissions. 
Convictions were obtained in 1,416 cases. In Japan, we tried 996 
suspected war criminals before military commissions--of which 856 were 
convicted. These conviction rates are not out of line with normal, non-
military commission outcomes--indeed, they are lower than the felony 
conviction rate in the U.S. Federal courts last year.
    When eight Nazi saboteurs landed on our coast in 1942, with the 
intention of destroying American industrial facilities, they were tried 
by military commissions.
    Indeed in that case, the Supreme Court upheld the constitutionality 
of military commissions. In Ex parte Quirin, the Court ruled 
unanimously--in an 8-0 decision--that the trial of the Nazi saboteurs 
by a military commission, without a jury, was indeed constitutional, 
declaring ``unlawful combatants are subject to punishment by military 
tribunals for acts which render their belligerency unlawful.''
    Further, the U.S. Congress also recognized the use of military 
commissions, after World War II, when it passed the Uniform Code of 
Military Justice in 1950, which included statutory language preserving 
the jurisdiction of military commissions. So all three branches of the 
U.S. Government have endorsed the use of military commissions.
    Our ability to bring justice to foreign terrorists is critical to 
our ability to defend the country against future terrorist threats. 
Moreover, it is well established that a foreign national who is engaged 
in armed conflict against the United States has no constitutional claim 
to the rights and procedures that would apply to a domestic criminal 
prosecution. Furthermore, there are a number of compelling reasons for 
using military commissions instead of civilian courts to try unlawful 
belligerents in times of war.
    First, by using military commissions, we can better protect 
civilian judges, jurors and courts from terrorist threats and assure 
the security of the trial itself.
    Because of the ongoing threat from terrorists, the risks to jurors 
are of a kind that military officers are trained and prepared to 
confront but that are not normally imposed on jurors in civilian 
trials. Indeed, the judge who handled the trial for the first World 
Trade Center attack is still under 24 hour protection by Federal 
marshals--and probably will be for the rest of his life.
    It is also important to avoid the risk of terrorist incidents, 
reprisals or hostage takings during an extended civilian trial. 
Moreover, appeals or petitions for habeas corpus could extend the 
process for years. Military commissions would permit speedy, secure, 
fair and flexible proceedings, in a variety of locations, that would 
make it possible to minimize these risks.
    Second, Federal rules of evidence often prevent the introduction of 
valid factual evidence for public policy reasons that have no 
application in a trial of a foreign terrorist. By contrast, military 
tribunals can permit more inclusive rules of evidence--a flexibility 
which could be critical in wartime, when it is often difficult, for 
example, to establish chains of custody for documents or to locate 
witnesses. Military commissions allow those judging the case to hear 
all probative evidence--including evidence obtained under conditions of 
war--that could be critical to obtaining a conviction.
    Third, military commissions can allow the use of classified 
information without endangering sources and methods. This point is 
critical. During the course of a civilian trial, prosecutors could be 
faced with a situation where, in order to secure a conviction, they 
would have to use classified information that would expose how the U.S. 
monitors terrorist activities and communications. They could be forced 
to allow terrorists to go free, or offer them lighter sentences, in 
order to protect a source that is critical to our national security.
    Do we really want to be in the position of choosing between a 
successful prosecution of an al Qaeda terrorist, and revealing 
intelligence information that, if exposed, could reduce our ability to 
stop the next terrorist attack--at a cost of thousands more American 
lives?
    A military commission can permit us to avoid this dilemma. We can 
protect national security, including ongoing military operations in 
Afghanistan, while at the same time ensuring a full and fair trial for 
any individuals designated by the President.
    Again, Mr. Chairman, the President has not designated anyone to be 
tried by military commission, and we have not yet issued regulations or 
established rules of procedure.
    But we are at war with an enemy that has flagrantly violated the 
laws of war. They do not wear uniforms. They hide in caves abroad, and 
among us here at home. They target civilians-innocent men, women and 
children of all races and religions. They intend to attack us again. 
Let there be no doubt.
    They are not common criminals--they are war criminals. We must--and 
we will--defend this country from them.
    Military tribunals are one of many instruments we may use to do so. 
We are confident that we will develop a process that Americans will 
have confidence in, and which is fully consistent with the principles 
of justice and fairness our country is known for throughout the world. 
We have the reputation as a Nation for dealing fairly in these kinds of 
matters--and we will do so in this case. We will bring justice to the 
terrorists, and ensure that the American people can once again live 
their lives in freedom and without fear.
    Thank you.

    Chairman Levin. Secretary Wolfowitz, thank you. Mr. Haynes, 
do you have an additional statement?

   STATEMENT OF HON. WILLIAM J. HAYNES II, GENERAL COUNSEL, 
                     DEPARTMENT OF DEFENSE

    Mr. Haynes. Just a brief one, Mr. Chairman. Chairman Levin, 
Senator Warner, it is a pleasure to be here again before your 
committee.
    The President's military order to the Secretary of Defense 
is as serious as any the President gives as Commander in Chief. 
The Secretary is determined to be deliberate and careful in 
implementing the order. He has asked me to assist him in 
framing the issues, surfacing the relative weights of the 
different considerations that would go into it. He has asked me 
to work with others to help bring those very important issues, 
many of which you highlighted in your opening statement, to his 
attention for his decision.
    That is a principal reason for me to be here today, and I'm 
pleased to be back.
    Chairman Levin. Thank you both for your opening statements. 
They are very helpful, indeed.
    Senator Warner. Mr. Chairman, I want to congratulate the 
Deputy Secretary speaking on behalf of the President and the 
Secretary of Defense for an excellent, fair, and balanced 
presentation.
    The bottom line is the American people trust our President, 
and the question now--is Congress going to trust our President 
to go forward, exercising his constitutional authority with 
input from Congress, not to write the regulations, but will you 
receive the recommendations that we wish to make and take them 
into consideration? Thank you.
    Chairman Levin. We'll have 8-minute rounds, as I mentioned. 
We will proceed with the usual early bird approach.
    Secretary Wolfowitz, when the Attorney General testified 
last week before the Senate Judiciary Committee, while, on the 
whole, he referred most of the details to the Department of 
Defense on some specific issues, he made statements that I'd 
like to ask you about and see whether or not you're in 
agreement with him.
    The Attorney General was asked, since the order gives the 
President or the Secretary of Defense authority to make the 
final decision, whether or not that means the Secretary of 
Defense or the President could reverse an acquittal of somebody 
who is charged with a crime, because by the terms of the order, 
it could be read that way. The Attorney General said he's 
confident that was not the intention of the order, and I'm 
wondering whether you agree with him.
    Secretary Wolfowitz. It was not the intention of the order.
    Chairman Levin. Thank you. The Attorney General was asked 
whether he believed that there should be appellate procedures 
under the order, other than the President and the Secretary of 
Defense--in other words, appellate procedures by an outside 
third party--because the order of the President appears to 
preclude that. The Attorney General said that he believes the 
Department of Defense, ``has the authority to develop appellate 
procedures under the order''. I'm wondering whether you agree 
that you have the authority to establish appellate procedures 
outside of the chain of command--in other words, outside of the 
Secretary and the President?
    Secretary Wolfowitz. Mr. Chairman, I'm going to ask the 
General Counsel to address the issue of authority, but I 
believe that it's worth emphasizing very, very strongly here 
that we are proceeding very deliberately. It is nearly a month 
now since the President issued that order and, as I believe 
everyone has observed, he has not yet chosen to designate 
anyone for trial by these commissions. We are still working on 
the procedures. We are listening very carefully to a very wide 
range of views and some very distinguished outsiders, and I 
won't try to mention everyone, but to give you a sense of----
    Chairman Levin. I wonder, though, whether you could just 
address the question, because we're limited in time.
    Secretary Wolfowitz. OK.
    Chairman Levin. Do you agree with the Attorney General 
that----
    Secretary Wolfowitz. I believe we have the authority.
    Chairman Levin. Pardon. I'm sorry. You do or do not?
    Secretary Wolfowitz. I believe we do.
    Mr. Haynes. Mr. Chairman, the President's order 
specifically does provide for at least some review, because the 
President reserves the right to review the decision of the 
tribunal or designates the Secretary of Defense to do so. The 
order also provides that the record of the proceedings will be 
reviewed. So another form of that could be in the 
implementation of that aspect of the President's military 
order.
    If I may go back to the first question that you had about 
reversal of acquittals, the question, as stated, supposes a 
particular form of decision-making by the Military War Crimes 
Tribunal. So the actual procedure for reviewing decisions of 
the commission is not yet formed.
    Chairman Levin. I understand that, but I'm wondering 
whether you agree with the Attorney General that the Department 
does have authority to develop appellate procedures under the 
order, outside of the review by the Secretary of Defense and 
the President? Have you resolved that issue yet?
    Mr. Haynes. We have not resolved the particular form, but 
the--go ahead.
    Chairman Levin. The Attorney General told the Judiciary 
Committee that the tribunals would be subject to habeas corpus 
review to the same extent as in the Quirin case, that being for 
review of the constitutionality of the tribunal and whether the 
defendants were legally subject to the tribunal. But the 
President's order itself is very explicit. It says that the 
individual charged ``shall not be privileged to seek any remedy 
or maintain any proceeding directly or indirectly or have any 
such remedy or proceeding sought on the individual's behalf in 
any court of the United States or any state thereof.''
    There seems to be a direct inconsistency here as to whether 
or not there is habeas corpus review provided, between what the 
Attorney General said what I believe the Counsel for the 
President said, and between the order itself.
    So my question is, do you agree with the Attorney General? 
Is the Attorney General right? Or does the order govern the 
question of habeas corpus review?
    Mr. Haynes. I agree with the Attorney General. The actual 
order from the President is identical, in that respect, to 
President's Roosevelt's order. The Supreme Court, in that case, 
determined that it had jurisdiction to review the case under 
those circumstances, and there's no intention to change that in 
this case.
    Chairman Levin. Alright, thank you.
    The Attorney General was asked whether or not only war 
crimes would be tried by the tribunal, because the order states 
that the jurisdiction of the tribunals go beyond war crimes, in 
the words of the order, to ``other applicable laws.'' Just to 
read a little bit more context, ``that individuals that are 
detained, when tried, will be tried for violations of the laws 
of war and other applicable laws.'' But the Attorney General 
said that only war crimes would be tried by the tribunals, and 
I'm wondering whether you agree with the Attorney General.
    Mr. Haynes. It's my understanding that the President 
intends to use this tool, if he does do it, consistent with the 
tradition of the use of military commissions, which 
traditionally has been to try war crimes under the common law 
of war.
    Chairman Levin. Only war crimes.
    Mr. Haynes. That's my understanding. Yes, sir.
    Chairman Levin. Let me go over with you now some of the 
possible elements of a full and fair hearing. I'd like to just 
hear from you whether or not you think these elements are part 
of a full and fair hearing. First, the presumption of 
innocence. Will there be a presumption of innocence?
    Mr. Haynes. Senator Levin, the Secretary has not made 
decisions about the individual aspects of the proceedings. 
There will be some basic procedures that will have to be 
balanced in context of all the other proceedings. Those 
elements of due process that are in accordance with the 
tradition of the use of military commissions will be considered 
and ultimately decided by the Secretary of Defense.
    Chairman Levin. In other words, there is still a question 
as to whether or not, for instance, there's a right to counsel 
or there's a presumption of innocence, or being informed of the 
charges against you--are those still unresolved questions?
    Mr. Haynes. Well, no, sir. The President's order says that 
there shall be a full and fair trial. It clearly says that the 
accused will have counsel. What is a full and fair trial may 
involve a number of different issues. But clearly, that is a 
direct order from the President, and I'm confident that there 
will be one.
    Chairman Levin. But I'm trying to conclude by finding out 
whether or not there's some question as to whether or not, for 
instance, the presumption of innocence or the right to cross 
examine witnesses or being informed of the charges against you 
in a language that you understand--whether or not there's still 
a question as to whether or not those are guaranteed by the 
full and fair trial requirement. Is there still a question 
about those kinds of fundamental issues?
    Mr. Haynes. Until the Secretary makes a decision about the 
entire bundle of procedures that will be applied, there will 
be--I would like to reserve the form of that, as opposed to 
answering specific questions about specific aspects.
    Chairman Levin. Thank you. Senator Warner.
    Senator Warner. Thank you. Mr. Chairman, I think we should 
make it clear that on the announcement by the President of his 
intention to exercise his power under the Constitution to 
establish these tribunals, you and I discussed the advisability 
of this hearing and jointly decided that it was definitely a 
responsibility of this committee, and here we are today. But in 
the interim, we consulted with Secretary Rumsfeld as well as 
the Deputy Secretary and others, and the Department of Defense 
made it eminently clear to the committee that they were in the 
formative stages of compiling the sets of regulations. Although 
we're going ahead with the hearing today, we understand we may 
receive somewhat inconclusive responses at this time.
    So I appreciate that, and I understand that, and we must 
accept the fact that you're midway through the process, and 
that this committee will eventually have another hearing at 
which time we'll get more specific details about what you 
intend to put into the regulations.
    So, therefore, I want to spend some time on procedure as to 
how you're going about this task given by the President to the 
Secretary of Defense.
    Consultation. We're having our hearing of this committee. 
The Judiciary Committee of the Senate has had its hearing. Are 
there other means by which you intend to consult Congress? I 
presume, although it was directly in your statement, that you 
will take into consideration the recommendations, not only of 
the committees of jurisdictions in Congress, this and the 
Judiciary Committee, but individual members. By what process do 
you hope to achieve that? Because I think it's important that 
all 100 members of the Senate feel they've had a voice, if they 
so desire to exercise it, in the formulation of these 
regulations.
    Secretary Wolfowitz. The Secretary has made it clear from 
the time he was assigned this responsibility that he wanted to 
proceed very deliberately and very carefully in thinking 
through all of these issues. He is not a lawyer, but he is 
determined to get all the best possible range of views that he 
can.
    As I indicated earlier, we're consulting with a wide range 
of individuals inside and outside the government. We are 
consulting in a more institutional way with the other branches 
of government that have views, including the Department of 
Justice and the Department of State. We welcome the views of 
the Senate and the House, either institutionally or 
individually.
    Our principal mechanism for getting these views is our 
General Counsel. I'll let Mr. Haynes speak to that in just a 
moment. The procedure really is to try to identify all of the 
issues, including the ones that Senator Levin just raised, to 
try to get a sense of what the range of recommendations would 
be, what the range of precedents would be, and, ultimately, to 
come to some conclusion.
    Mr. Haynes. I'd like to echo the Deputy Secretary's 
comments. I'd point out that the President issued his order 
almost a month ago, November 13. In that period, the Judiciary 
Committee has had four hearings, as I understand it. We've had 
a number of conversations with individual members of Congress 
and I solicit your views on a continuing basis.
    You can be sure that the views expressed directly and in 
hearings are being absorbed, factored in, considered, and are 
deeply appreciated.
    Senator Warner. I think it's important that that point be 
made in today's record. I've had the opportunity to consult 
with both of you several times on this, and I want other 
members of Congress to have the chance to do so as well. This 
is a very important threshold in the contemporary history of 
this country, and we want to see this carried out with the 
proper exercise of the Constitutional authority of the 
President, as well as Congress.
    Now, let's turn to the Department of Justice. It might well 
be in the course of these procedures that lawyers who are 
defending or otherwise interested in the tribunals will go the 
Department of Justice and perhaps institute proceedings in the 
Federal court system challenging certain aspects of the 
tribunal process. Therefore, it seems to me that we should have 
greater clarification today on the degree to which the Attorney 
General and his colleagues are being consulted on this, because 
they may well be the ones in the Federal system to meet the 
challenges to the tribunal system in the Federal courts.
    Mr. Haynes. Senator, we have had some informal discussions 
with the Department of Justice and intend to consult them on an 
ongoing basis.
    Senator Warner. Why do you rest on the word ``informal''? I 
mean, how do you distinguish between formal and informal? Is it 
a casual call, or are you saying, ``Now, Mr. Attorney General, 
this is what we have?'' Are you going to submit your 
regulations to him before making them public? He's the 
President's chief law enforcement officer.
    Now, I don't suggest in any way that there be an 
infringement on the right of the Secretary of Defense to 
conduct these tribunals on behalf of the President, but I think 
it's important that it be more than just informal conversation, 
that we should have some formality to this process with the 
Justice Department.
    Mr. Haynes. Senator, I did not mean to preclude that. What 
I will elaborate on at this time is to tell you a little bit 
about the process that we are employing.
    This is a military order. The Secretary is charged with 
implementing it. What we are doing within the Department is--in 
short, I have convened a panel of the senior lawyers in the 
Department, including those who are charged with administering 
the military justice system, which, as Senator Levin points 
out, in its usual form is very different from a military 
commission. Nevertheless, they have very important views and 
experiences and institutional records and understandings to 
draw on in order to surface and consider carefully the issues 
that Senator Levin raised as well as some other issues, in 
order to ensure that we get an appropriate cast to this 
implementation, as opposed to recreating the Article III 
process. That is not the intention of the President to do.
    When I said ``informal consultations'' with the Department 
of Justice, there will be more. Certainly the Department of 
Justice has a deep well of expertise on which to draw. They 
will, of course, be those charged with defending the procedures 
if and when they are challenged by any----
    Senator Warner. Whether you call it formal or informal 
you're going to submit to the Department of Justice the full 
final set of regulations for their review?
    Mr. Haynes. Yes, sir. We----
    Senator Warner. Am I correct in that? I've been around here 
a little while in this government. I have seen friction between 
the departments of the government, and that works against the 
best interests of our President. We don't want that to arise in 
this instance.
    Last, I think it very wise that you have consulted with a 
series of outside experts. You've shared with me some details 
on that. Let's make it clear that you just haven't gone to 
Republicans because this is a Republican administration. It's 
across the board. It hasn't got a thing to do with politics, in 
my judgment. You have sought out and are receiving the advice 
and counsel of a wide range of very well recognized and 
respected former jurists, practicing lawyers, professors, and 
the like. I'd just like to have that on the record, Mr. 
Secretary.
    Secretary Wolfowitz. Absolutely clear, Senator. I mean, we 
were consulting a wide range of people, and I don't want, by 
mentioning names, to suggest that these are the only people 
we're talking to, but just to give you some idea of the caliber 
of people that the Secretary has met with or that he's had 
General Counsel meet with, people like former Secretary of 
Transportation Bill Coleman, former White House General Counsel 
Lloyd Cutler, a Democrat, former Attorney General Griffin Bell, 
former FBI Director. Judge William Webster and Professor Lee 
Meltzer have been consulted. It's people of that caliber, and 
it's, I think, representative of a very wide range of political 
opinion.
    Senator Warner. I thank you, Mr. Secretary. I was hopeful 
that you would put that out to show politics is playing no role 
whatsoever as we formulate these regulations.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Warner. I'm 
now going to call on Senator Kennedy. There's a vote on. Many 
of us are going to want to go and vote and come back. The list 
of the order of recognition is here. I won't read everybody, 
but Senator Inhofe, you would be next, but you have to vote, so 
I'm not sure whether you want to try to do that. But I'm going 
to turn this now to Senator Kennedy. If you are here when he's 
done with his 8-minute round, you would be next. If not, when 
you get back, you should then be recognized.
    Senator Inhofe. Mr. Chairman, I'm going to stay, and I'll 
be here.
    Senator Kennedy. Thank you, Mr. Chairman. Thank you, Mr. 
Secretary and Mr. Haynes, for the indication that you're open 
to getting some input as you're working forward in developing 
this process. I mean, I think it's something that we should try 
and engage with you on.
    Let me go first to one of the areas that I'm concerned 
about, and that's how other countries will see military 
tribunals and whether they will look at this as a double 
standard by the United States.
    Over the years, our government has actively supported the 
rule of law internationally. We've consistently opposed 
military tribunals in other nations because of their failure to 
provide the adequate due process. The Department of State's 
most recent human rights report last February said the 
following about the use of military courts in Peru: In the case 
of Laurie Berenson, an American who was tried for terrorism by 
a secret military tribunal, ``Proceedings in these military 
courts do not meet internationally accepted standards, 
openness, fairness, due process.'' It said that Ms. Berenson, 
in particular, did not receive sufficient guarantees of due 
process.
    This is the criticism that the United States has made about 
tribunals. We've done that in recent years with Burma, China, 
Colombia, Egypt, Malaysia, Nigeria, Peru, Russia, the Sudan, 
Turkey--the list goes on and on. Given the broad scope of the 
initial military order, even if its narrowed now, isn't there a 
danger that it'll allow countries to justify secret military 
tribunals and avoid even the basic due process safeguards? I 
mean, what is the administration doing to see that America's 
credibility in criticizing the secret military tribunals in 
other countries will not be undermined by the military order?
    Secretary Wolfowitz. Senator, I think that's one of the 
reasons why we want to work out, very carefully, the kinds of 
procedures that will make the judgments of any military 
tribunal, any military commission that we establish meet a full 
standard of fairness. We have criticized, for example, the 
tribunals in Peru for violations of fundamental principles of 
due process. If we have to judge individuals before a U.S. 
military tribunal, I think we will be setting a standard by 
which other countries will have to be judged, and I think that 
will reinforce our case in objecting to the kinds of abuses 
that you refer to.
    Senator Kennedy. I think that's right. I think the concern 
is now with the full and fair hearing, whether we've already 
opened the door to other countries. Obviously, they'll be 
influenced by the final recommendations, but has the State 
Department been involved in the initial declaration or 
statement about the tribunals themselves? Have they had any 
input? Has Secretary Powell expressed any views that you know?
    Secretary Wolfowitz. We are consulting with them also and 
are clearly interested in their views. The point that Chairman 
Levin made, that how these tribunals are viewed by other 
countries may affect their willingness to turn individuals over 
to us, makes this, among other reasons, a matter of 
international significance.
    Senator Kennedy. The chairman mentioned some of these 
protections, but I want to just come back to them, because I do 
think they define whether these are going to meet our 
standards: adequate due process; the presumption of innocence; 
proof beyond a reasonable doubt; representation by independent 
and effective counsel; the right to examine and challenge 
evidence offered by the prosecution; the right to present 
evidence of innocence; right to cross-examine adverse witnesses 
and to offer witnesses; reasonable rules of evidence; and the 
appellate review of convictions.
    Now, these protections are instituted in our standard of 
justice, because they help identify the guilty and also protect 
the innocent. They are not luxuries. They are essential aspects 
of our whole process of justice. I'm just interested in what 
you might be able to say or you can't say at this time and when 
you'll be able to tell us which ones will be in and which ones 
will be out, in terms of the order.
    This is against a background, a statement, where Secretary 
Rumsfeld a few weeks ago indicated that the procedures may very 
well be established on the basis of who the individual is and 
who might actually be tried. I'm interested in coming back to 
these items, and hearing from you when we will know whether 
these kinds of protections will be included in the order or 
whether they will not be and when we might know that.
    Mr. Haynes. Senator, neither the President nor the 
Secretary has indicated a deadline for when he or they want 
these rules to be put into effect. But let me just make one 
observation about your list, which is an important one. As you 
might imagine, and I'm sure you know, the method by which any 
one of those principles might be implemented can vary. One of 
the reasons that the President chose to create this option for 
himself, this additional tool in the war on terrorism, is to 
recognize that this is an extraordinarily different risk than 
we normally take and to recognize that, in a war, law 
enforcement is not the principal aim. It's winning the war. 
Now, that doesn't mean it comes at the expense of fairness or 
of the American ideals or principles of justice. It doesn't 
come at that expense.
    But take the rules of evidence, for example. What the 
Secretary of Defense will do, and what the President has 
already done, is maximize the ability to find the truth. The 
standard of evidence spelled out in the President's military 
order is to admit that evidence which is probative to a 
reasonable person. That is different----
    Senator Kennedy. I don't want to interrupt you here, but 
there's another area that seems to be fairly subjective. My own 
sense is these are not luxuries which we sort of tolerate when 
times are good. They are essential aspects of a due-process 
system and we want to try and we will--I hear your answer that 
you're not prepared to make these recommendations now, but they 
will be forthcoming. Obviously, they'll have to before the 
military tribunals are established.
    I'd like to get to what I addressed in my opening comment 
about the decision to try Zacarias Moussaoui in the Federal 
district court. Secretary Wolfowitz, if you'd be good enough to 
tell us, what were the considerations in making the decision to 
proceed in the Federal court as opposed to a military tribunal?
    Secretary Wolfowitz. Senator, to the best of my knowledge, 
that was a decision made by the Justice Department.
    Senator Kennedy. You weren't involved in this?
    Secretary Wolfowitz. I was not, personally. I don't believe 
we were as a Department, either, were we?
    Mr. Haynes. No, we were not involved.
    Senator Kennedy. Do you have a view, Mr. Secretary, on 
that?
    Secretary Wolfowitz. No, I don't. They obviously have the 
evidence that they believe gives them a case for going to 
trial, and I'm not aware--I would have to know the details to 
have a view.
    Senator Kennedy. My time is up.
    Senator Inhofe. Thank you, Mr. Chairman. I think some of 
the rest of them may be back, and I'm not going to take all of 
my time because we do have a vote that's on. Let me just ask 
Mr. Haynes something that was alluded to briefly by Secretary 
Wolfowitz.
    During the Judiciary Committee hearing, when Attorney 
General Ashcroft was asked some questions, he said, not only 
will the U.S. Supreme Court review whatever's been done, but he 
believes that the issue resolved in the court's 1942 decision--
referring to that decision where the eight suspected German 
saboteurs were brought to justice, six of them executed--the 
question I have would be a legal question. Legally speaking, 
between the court's decision during a declared state of war in 
1942 and its application to our current war on terrorism, is 
there a legal distinction or difference?
    Mr. Haynes. I do not believe that there is a difference 
that matters here. We are clearly in a state of war, and we are 
very confident that the President's orders----
    Senator Inhofe. Alright, let me ask another question to 
either one of you. I've been concerned about one thing. We know 
that many people will be arrested in conjunction with September 
11 by governments of foreign countries. When that happens, we 
are concerned about extradition. We're concerned about getting 
them over here. I know there is a concern that some of these 
countries--I believe it was Spain where they apprehended some 
individuals--they're reluctant to extradite to this country 
because of the system of justice they believe we might be 
using. Is there some kind of a legislative fix, Secretary 
Wolfowitz, that could make them less reluctant to allow them to 
come back here for justice?
    Secretary Wolfowitz. Senator, I think the principal issue 
that we're going to have with those countries, as we have with 
Spain, is over the issue of the death penalty. I think in every 
one of these cases, if there's an issue, we'll have to 
negotiate. The President is not required to submit anyone to a 
military tribunal. If that were to become an obstacle to 
extraditing somebody that was important to us, I'm sure that 
would be something he would take into account. I think--my 
feeling would be it's much better to leave him the flexibility 
than to try and----
    Senator Inhofe. That flexibility should encourage them to 
allow us to have access to those witnesses. At least I hope 
that's the case.
    Secretary Wolfowitz. I would hope so. It seems to me, given 
the horror of what took place on September 11, that they--let's 
forget about military tribunals--that they owe the--if 
someone's going to be tried by an American civil court, it is 
for something--it seems to me, we are fully entitled to have 
custody of them.
    Senator Inhofe. Let me just share a personal experience 
with you. I almost didn't come today, Mr. Secretary, because 
I've already made up my mind. I did so a long time ago. But 
many years ago, when I was in the United States Army, I was a 
lowly clerk in the military courts.
    As this discussion has come forward and all these concerns 
about beyond reasonable doubt, presumption of innocence, the 
two-thirds versus unanimity, in terms of the death penalty, the 
rights and protections of these terrorists--I'm having a very 
hard time with that, because I remember so vividly sitting in 
the courtrooms of military justice many years ago as an Army 
clerk looked into the faces of these men and women, our 
military people, who were brought to justice. I don't recall 
one time, not one time, during that time that I spent in those 
military courts, hearing or remembering, recalling any soldiers 
who were being administered justice at that time complaining 
about the system of justice that they were receiving.
    I have very strong feelings that if that system of justice 
was good enough for our own troops, as it's good enough for our 
own troops today, it's ludicrous to believe that that system is 
not good enough for a terrorist. So I have no problem with it, 
and I come with that prejudice from my past experience in the 
military courts. I hope we'll be able to get on with it.
    I guess I'm the chairman, so I'll yield to Senator Allard.
    Senator Allard. Thank you for yielding. I would ask that my 
full statement be made a part of the record.
    [The prepared statement by of Senator Allard follows:]
               Prepared Statement by Senator Wayne Allard
    Thank you Mr. Chairman. I thank you for calling this hearing and 
bringing the issue of military tribunals here to the Armed Services 
Committee--where it belongs. The President's order to the military and 
the Department of Defense on the detention, treatment, and trial of 
certain non-citizens in the war on terrorism has stirred much debate. 
Accurate and factual information on the subject has been mixed with 
information that is fictitious and/or irrelevant. Before the Defense 
Department has even had a chance to promulgate rules and procedures for 
them, some have already slandered the military commissions as 
unconstitutional, even in the face of highly favorable historical and 
constitutional traditions.
    I support the President in his decision. The spectacle of thousands 
of high-profile U.S. court terrorism trials dragging on for years would 
be a legal, logistical, security, and safety nightmare. But difficulty 
is not the reason for the tribunals, nor is cost (although the McVeigh 
trial alone cost about $82 million). The President has taken this step 
to ensure that further acts against the United States--by a group that 
has already killed thousands of innocent people--are forestalled. The 
Executive Order, while mandating humane treatment and fair trials, will 
prevent the disclosure of extremely sensitive security information, 
minimize the risk to public safety that holding trials in the U.S. 
would foster, expedite the nullification of threats to our country, and 
will facilitate the proper settlement for military actions.
    The President's order specifically directs that trials before 
military commissions will be ``full and fair,'' and I have no doubt 
that this administration will do that and remain well within the bounds 
of the Constitution. Certainly, oversight by Congress, in particular 
this committee, is important.
    Secretary Wolfowitz and Mr. Haynes, I thank you for coming here 
today. I look forward to hearing your testimony. In order to defeat 
terrorism and limit the risk to ourselves and our allies, it is 
important that we bring terrorists to justice. I agree with the White 
House Counsel Mr. Gonzales, when he said that, ``The American military 
justice system is the finest in the world, with longstanding traditions 
of command influence on proceedings, of providing zealous advocacy by 
competent defense counsel, and of procedural fairness.'' I am confident 
that you will continue this tradition.
    We are already seeing success in physically dismantling the al 
Qaeda network and the destruction of their financial backing. But, it 
is important that we defeat terrorism on all fronts. We are winning the 
war on the military front, on the economic front, and on the diplomatic 
front. Bringing terrorists to justice in a fair and just manner is 
critical in winning the information front and achieving a long term 
victory that provides security for our citizens at home and while 
traveling abroad.
    Again, thank you for coming here today and I look forward to 
hearing your testimony.

    Senator Allard. Secretary Wolfowitz, I want to compliment 
you on your statement. I think it was a very good statement. 
I'd point out that a trial by military commission isn't 
anything new. George Washington used it, and right up to 
current times it's been in use. It's been endorsed by all three 
branches of government. I think that's impressive.
    I also listened very carefully to the reasons why you felt 
like we needed to go to a military tribunal. I found two of 
them very clear and easy to understand. The first one you 
mentioned was to better protect our civilian judges and jurors 
from threats from terrorists. I think that's easy to 
understand. The third one you mentioned was that they allow the 
use of classified information. I think we all understand how 
many times our sources get exposed, perhaps, in a public trial. 
We put them at risk and we lose them--they either get killed or 
they get disclosed so that they're no use to use any more, from 
an intelligence gathering purpose.
    You talked about how Federal rules of evidence often 
prevent the introduction of valid factual evidence for public-
policy reasons. I tried to think, in my own mind, of where that 
might apply, and I'd like to have some help. One area that I 
thought it could apply, for example, would be in a Miranda 
decision. Police officers or anybody that's making an arrest 
carry a little card and promptly read their rights to whoever 
is being arrested. In this particular case, we frequently have 
arrests being done by somebody in the military--either a 
military officer or somebody--men or women serving the 
military. Certainly, they're not trained in the Miranda 
decision that, in a practical sense, would never be applied on 
the field of battle, perhaps not even here in this country.
    We have somebody in the National Guard, for example--I can 
visualize an example in an airport, when somebody might walk on 
with a body bomb or something like that, and they immediately 
put him under some kind of arrest or whatever. They're not 
going to read him his Miranda rights.
    I could also see where perhaps chain of evidence would be 
difficult to apply. I assume these are the kind of situations 
you're talking about where they would get off in a civilian 
court or regular judicial courts, but certainly wouldn't apply 
in a military court. I'd like to have you comment on those 
examples and then also are there other examples that could be 
referred to as to why it wouldn't be appropriate to try them in 
a regular court of law?
    Secretary Wolfowitz. Another example might be our 
exclusionary rules that basically make sure that our law 
enforcement people don't undertake unreasonable search and 
seizure procedures and, therefore, if evidence is collected in 
violation of one of those rules, it can't be introduced. I 
mean, imagine if a foreign terrorist were sneaking into the 
United States with a trunk-load of anthrax in the back of the 
car, and the policeman unreasonably opened the trunk and found 
it. I don't think we'd want that evidence excluded in a trial. 
That might be a reason why you'd consider a different criminal 
procedure.
    But let me go to something even more fundamental. You're 
absolutely right that we don't train our special forces in 
Miranda rules. But it isn't only that they're not trained to do 
it. This comes to the fundamental point. They are trained to do 
the opposite. They are trained to take these people and to 
question them and to get as much information as quickly as 
possible because it is part of the defense of the United 
States. The information that the people they arrest know about 
may help us to catch other terrorists, may help us to prevent 
other terrorist incidents. Therefore, the last thing we would 
want is to be picking up al Qaeda terrorist in Afghanistan 
today and reading them their Miranda rights. We want them to 
tell us everything they know. Now, after they've told us all of 
that, we're going to say it can't be introduced in a trial?
    What we're trying to accomplish here is two goals, and I 
think we can accomplish both of them. One is the defense of the 
United States. The second is a full and fair trial. But the 
defense of the United States is fundamental in all of this.
    I would add one other thing. I believe the existence of 
this procedure, the possibility of military commissions, even 
without anyone having been turned over, even without the 
procedures having been specified, is something of a deterrent 
to people, for example, sneaking into the United States 
thinking--and there's some evidence that among many things 
terrorists have studied rules of civil procedure when learning 
how to operate in this country--to put them on notice that you 
may be in a completely different process. Don't count on 
Miranda rights if you're arrested if you're a foreign terrorist 
sneaking into the United States.
    Senator Allard. What I've seen is the disclosure of a lot 
of their procedure manuals, and they specifically talk about 
how they can avoid prosecution, perhaps using our own civil 
courts. Is that correct?
    Secretary Wolfowitz. That's my understanding. I haven't 
actually seen those manuals, but I've heard about them. Yes, 
sir.
    Senator Allard. Okay. If you go into a trial by military 
commission, who provides the defense counsel?
    Secretary Wolfowitz. I'll turn to my lawyer, but I think 
that's one of the questions we're looking at.
    Mr. Haynes. That is one of the questions that we're looking 
at. The President's order provides that they shall be afforded 
counsel. One would expect that we would provide military 
counsel for them, as this is a military proceeding. But as I 
said to Senator Kennedy earlier, there are many different 
possible permutations of that procedure, and that needs to be 
determined.
    I might add, regarding your first question, that there are 
other types of evidence that might otherwise be excluded in a 
normal criminal proceeding in a U.S. Federal court that, 
nevertheless, would be valuable in weighing the facts--in order 
to get at the truth, in other words. For example, remote 
testimony, affidavits, recorded testimony. There may be 
witnesses who, for very good reasons, can't be identified. Now, 
in a normal proceeding, those might not be allowed in at all, 
for good reasons, for reasons that ensure that we have a fair 
process that works for another two-hundred-and-some-odd years 
that the country's been working. Those are prophylactic 
reasons, reasons that we have decided are good for the overall 
administration of justice on an ongoing basis, that may not 
have any application in this context, a war that we hope is not 
a long one, although we fear that it is. But there may be 
evidence like that that should be considered and will have to 
be weighed based on the value of it, as determined by the 
triers of fact.
    Senator Allard. Now, these are non-citizens that you're 
talking about. These aren't American citizens. I think that 
ought to be clarified for the record. So if you have a non-
citizen arrest in a foreign country, then the thought is that 
the military commission or tribunal would probably not be 
conducted in this country. Is that correct?
    Secretary Wolfowitz. Sorry to keep giving you the same 
answer, but that is one of the issues that clearly remains open 
and might be decided depending on the individual case, as well. 
I think it depends on what foreign country we find him in and 
what the options are for trial, but they would certainly not 
necessarily have to be brought back here for trial. As I noted 
in my opening testimony, the very large number of German and 
Japanese soldiers that were tried before military commissions 
at the end of World War II were obviously not tried in this 
country.
    One can't say it often enough. We say it over and over 
again. These commissions are only for non-citizens who are 
accused of terrorist acts against the United States.
    Senator Allard. I appreciate you clarifying that. That's 
been my understanding, that it would apply only to non-
citizens.
    Mr. Chairman--I guess Senator Lieberman's acting as chair--
I see that my time has expired.
    Senator Lieberman. Thank you, Senator Allard.
    Senator Reed.
    Senator Reed. Thank you very much, Senator. Thank you, Mr. 
Secretary and Mr. Haynes, for your testimony this morning.
    At this juncture, it appears that there is the 
constitutional right to conduct these tribunals. Our issue is 
making sure we get that right correct, with appropriate 
procedures in place so that there's both a procedural fairness 
and substantive fairness.
    Let me ask a few questions. I'm going to try to divide up 
the questions--the legal questions to Mr. Haynes, the policy 
questions for the Secretary.
    Mr. Haynes, in response to Chairman Levin, you indicated, 
or at least implied, that there would be a right of habeas 
corpus review under the Quirin case. But there was a subsequent 
case in which the Supreme Court decided that an alien outside 
the United States did not necessarily have the right to habeas 
corpus review. That was Johnson versus Eisentrager. Are you 
aware of that case, and in what way will that inform your 
decision about the process of review?
    Mr. Haynes. Perhaps I wasn't as precise as I should have 
been. What I was responding to, or thought I was responding to, 
was trial in the United States. I stand corrected if I mis-
spoke earlier.
    Senator Reed. Well, it's most likely that, in the most 
controversial cases, the individuals will not be returned to 
the United States. In that case, your view would be that those 
individuals have no right to a writ of habeas corpus?
    Mr. Haynes. That's my view.
    Senator Reed. That, I assume, would put additional emphasis 
on other rights of appeal within the Department of Defense. Is 
that a fair deduction? Or would you conclude, at this point, 
that if someone's tried overseas, there will be a right to 
appeal the verdict of a court?
    Mr. Haynes. Well, again, the Secretary hasn't decided on 
what the procedures will say yet. The order itself does include 
within it a review above the tribunal itself, so there will be, 
automatically, at least that appeal. What additional procedures 
the Secretary decides to employ remain to be seen.
    Senator Reed. Again, I don't want to keep emphasizing this, 
but it's a fundamental right of habeas corpus. It's a right 
which the court recognizes is available to someone tried by a 
military tribunal within the United States. But simply a 
decision administratively not to try the person in the United 
States could render that right to habeas corpus moot, so it 
seems to me that this is an issue that you have to devote 
yourself to rather seriously in terms of some procedures to 
review cases.
    Mr. Haynes. We are being very serious. But I point out that 
in your hypothetical we are talking about--non-U.S. citizens 
outside the United States. The Constitution does not give those 
individuals anywhere near the rights that U.S. citizens have.
    Senator Reed. I'm not arguing with you, but you have the 
authority under this law to bring the individual to the United 
States for trial, which would trigger habeas corpus review, or 
keep him outside the United States. I think you have to be very 
careful in procedures so that doesn't appear to be an arbitrary 
denial of a right which would be available to the alien if he 
was tried in the United States. Is that a fair point?
    Mr. Haynes. I take your point that we should be serious, 
and we are, and we would solicit more views from you after 
the----
    Senator Reed. Let me ask another question. In the order, at 
page five, it talks about the prosecution conducted by 
attorneys designated by the Secretary of Defense and ``conduct 
of defense by attorneys for the individual.'' Do you 
contemplate--and you might have covered this in your previous 
questioning--that the individual may select the attorney of his 
choice or her choice?
    Mr. Haynes. It may be that the Secretary decides to address 
the right to counsel in a number of different ways. One option 
could be to provide military counsel or other counsel to them. 
The extent of choice remains to be seen. The Secretary will 
have to consider what qualifications are going to be important 
in order to provide effective counsel. This is an important and 
fundamental tenet of our American system, and whatever counsel 
is provided will be competent and a strong advocate and 
qualified in all respects, including the need to protect 
information and----
    Senator Reed. Well, there are several ways to do that. The 
first is to establish general criteria--must be a member of a 
bar in a jurisdiction of the United States, etcetera. The other 
way is to specifically reject suggestions by the defendant of 
who would represent the defendant, even though they meet this 
criteria. Do you believe the Secretary of Defense would deny 
individual choices by a defendant of defense counsel who is 
otherwise qualified?
    Mr. Haynes. I could imagine some circumstances where 
counsel chosen by the defendant might not be appropriate under 
the circumstances, so, yes, I can imagine that circumstance.
    Senator Reed. That decision would be made by the Secretary 
of Defense.
    Mr. Haynes. In the implementation of the procedures 
implementing the order, the Secretary will include rules about 
qualifications of counsel, both defense and prosecution.
    Senator Reed. Well, it's quite clear. The order says that 
the prosecution attorney will be designated by the Secretary of 
Defense. But what you're suggesting by your comment is that the 
order should be further read to imply that the defense counsel 
might also be selected by the Secretary of Defense.
    Mr. Haynes. There's another provision of the order that I 
can give you later if you'd like that says the Secretary shall 
prescribe rules for the qualifications of counsel, both 
prosecution and defense.
    [The information referred to follows:]

    Pertinent language from the President's Military Order of November 
13, 2001, as well as Department of Defense Military Commission Order 
No. 1, ``Procedures for Trials by Military Commissions of Certain Non-
United States Citizens in the War Against Terrorism,'' dated March 21, 
2002, are provided as an appendix to this testimony.
      
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    Senator Reed. What level of rank do you contemplate the 
military judges to be?
    Mr. Haynes. That's not been determined. This would clearly 
be an important factor to consider. The qualifications of the 
commission members or judges, as you say, is certainly very 
important. In the past it has ranged, depending on the level of 
the offense charged, the quantity of the cases, and the 
individual accused. I could imagine a whole range of 
possibilities.
    Senator Reed. In a technical sense, the convening authority 
would be the Secretary of Defense? The Secretary of Defense 
would choose the judges?
    Mr. Haynes. One of the issues is whether the Secretary 
would make that determination himself or whether he might 
identify different subordinate appointing authorities. That has 
been done different ways in different times over the years, as 
well. There might be some utility to that.
    Senator Reed. Let me ask another more general question. 
It's my understanding that bin Laden has been indicted in a 
Federal court in New York for the bombings of our embassies. 
Yet, as I read the order, the present order would essentially 
disregard any existing indictments by Federal courts and vest 
exclusive jurisdictions in these military tribunals to those 
individuals that he has identified as being subject to this 
war. Is that a correct understanding?
    Mr. Haynes. I don't think so. I don't think that the order 
is intended to divest the Article III Courts of jurisdiction. 
It is a separate and concurrent option for trial under these 
cases. Of course, it would require the President to make a 
specific written determination. In the case of bin Laden, as 
you say----
    Senator Reed. But that raises the question of competitive 
venues or jurisdictions for this trial, at least in the case of 
bin Laden. An indictment is pending in a Federal court, an 
Article III Court in the United States, versus the President's 
decision unilaterally under this order to essentially ignore 
the indictment in the Federal court. I think it's a real issue. 
I don't have an answer, but I think it's a real issue.
    Mr. Haynes. Well, it's not an unusual circumstance. For 
example, one could be indicted in state court and Federal court 
at the same time. The fact that there are different potential 
forums for trial or adjudication is not problematic.
    Senator Reed. My time has expired, but just one final 
point, and I'm a good enough lawyer to know I don't know the 
answer. As I understand it, though, if there's no agreement 
between the state court and the Federal court, both have at 
least the authority to conduct the trials. I mean, perhaps I'm 
wrong. Thank you.
    Chairman Levin. Thank you very much. Senator Sessions.
    Senator Session. Thank you, Mr. Chairman. First, Mr. 
Chairman, I'd like to submit for the record a number of items 
from experts in constitutional and international law that have 
affirmed the military commissions as President Bush has 
proposed it. First is a letter from the former Attorney General 
of Alabama, Bill Baxley, who's a Democratic Attorney General, 
was a JAG officer in the National Guard for many years, has 
tried cases before military tribunals, and said he probably is 
the only person in Alabama that's read the entire Nuremberg 
transcript. He believes this is a proper and appropriate way to 
proceed, as does Dean Doug Kmiec, of Catholic University, 
Professor Ruth Wedgwood of Yale, a widely acknowledged 
international law expert, and Gen. Michael Nordotti, a former 
top JAG officer in the Army.
    [The information referred to follows:]

    Mr. Chairman: I submit for the record the following items from 
experts in the field of constitutional, international, and military 
law, all of whom have studied President Bush's Military Commissions 
Order and who support it:
    1. The written statement of retired Gen. Michael Nardotti, the 
former top JAG officer of the U.S. Army;
    2. An op-ed by Professor Ruth Wedgwood of Yale a widely 
acknowledged international law expert;
    3. A statement by Dean Doug Kmiec of the Catholic University Law 
School, and former Assistant Attorney General for the Office of Legal 
Counsel; and
    4. A letter from former Attorney General of Alabama, Bill Baxley, 
who has tried cases before military tribunals and read the entire 
Nuremberg transcript, and lectured on the Nuremberg transcript, and 
lectured on the Nuremberg International Military Tribunal.

                                 ITEM 1

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                                 ITEM 4

               Baxley, Dillard, Dauphin & McKnight,
                                          Attorneys at Law,
                                 Birmingham, AL, December 10, 2001.
            VIA FAX, OVERNIGHT AND FIRST CLASS MAIL DELIVERY
Hon. Jeff Sessions,
United States Senator,
493 Russell Building,
Washington, DC.
    Dear Senator Sessions: I am, doubtlessly, one of your few 
constituents who has read the entire trial transcript of the Nuremberg 
Trials. In this vein, and as a result of my experience as both a 
prosecutor and as defense counsel, including appearing before military 
tribunals, I am writing now to address concerns expressed by some 
members of the press, and a few in Congress, relative to the 
utilization of military tribunals to determine the innocence, guilt, 
punishment or release of those who have been charged with crimes 
arising from the events of September 11, 2001, which are continuing 
today.
    In my opinion, the security of this country can be best preserved 
by supporting and implementing the proposals of President Bush in this 
regard. I have faith that the men and women who would serve on these 
tribunals can afford any person accursed complete justice, impartiality 
and fairness in the adjudication of guilt or innocence. Many Americans 
are unaware that at Nuremberg a number of those who were charged with 
war crimes were acquitted, and that some were convicted of some charges 
made against them, but acquitted of others. I recognize, of course, 
that the President's proposals differ from the procedures at Nuremberg. 
Nevertheless, I have endeavored to familiarize myself with the 
President's proposals and with objections to them which have appeared 
in the media. I consider myself sensitive to all legitimate arguments 
made in support of civil rights and liberties, but after considering 
all the arguments--pro and con--I continue to strongly support the 
President's proposals, and to endorse them during this crisis.
    Please take these views into consideration as you consider the most 
appropriate action to take regarding prosecutions arising from the 
events of September 11, 2001, which are continuing events, and which 
threaten the security of our country. If I can be of any assistance to 
you in connection with decisions touching upon these issues in the 
United States Senate, or elsewhere, it will be an honor and a privilege 
for me to share my time and the benefit of my experience with you.
            Respectfully yours,
                                                       Bill Baxley.

    Senator Sessions. I would just like to run through a few of 
the questions that I think get down to the nitty-gritty. You 
may not be prepared to answer them, but maybe you can give us 
some of the difficulties and tensions in answering these 
questions.
    We talked about habeas corpus. That's the right of a person 
to bring himself before a court to find out if they've been 
charged with a crime and what it is, fundamentally. That's the 
great writ. But the Quirin case, as I understood it, said 
fundamentally that there would be a right to bring them forward 
to make sure that the trial was appropriately tried in the 
military commission. Is that basically what the court decided 
in Quirin?
    Mr. Haynes. Yes, sir. That's why they heard it. They made 
the determination that it was appropriate.
    Senator Sessions. So, otherwise, if it was properly tried 
in the military tribunal, a Supreme Court approved the complete 
handling of that case in the executive branch. Is that right?
    Mr. Haynes. Yes, sir. That's right.
    Senator Sessions. I would just point out that Americans are 
so committed to civil liberties that we have some difficulties 
understanding there are other ways of doing justice. You do 
have an appellate process here. This order requires that a 
transcript of the case be made--the whole trial. Is that 
correct?
    Mr. Haynes. That's correct.
    Senator Sessions. That an appeal be given to the President 
or, if he designates, the Secretary of Defense to review that 
record to make sure justice was done. Is that correct?
    Mr. Haynes. That is correct.
    Senator Sessions. The Secretary of Defense could assign JAG 
officers and other officers, as he'd choose, to study and 
review every aspect of that, if he so chose.
    Mr. Haynes. Yes, sir. The form of that remains to be seen, 
but that's correct.
    Senator Sessions. However he chose to do that. It would 
just strike me that we're operating under the war powers 
provision here, which is an executive-branch function, and I 
would suggest that history should be the guide. If it is the 
guide, Mr. Haynes, then any reviews and appeals will be within 
the executive branch. Is that correct?
    Mr. Haynes. That's correct. Although, as was said earlier, 
there's no intent to preclude an accused from seeking out 
habeas corpus writ.
    Senator Sessions. Now, with regard to cross examining of 
witnesses, you were, rightly, not too quick to say, ``Oh, of 
course, we're going to have full cross-examination of 
witnesses.'' I would just offer the point that the American 
justice system provides the greatest possible ability to cross-
examine witnesses, far beyond that in most countries in the 
world.
    But the point I would suggest to you is that if you have 
absolute right to do that, we'll have some serious problems, 
such as if the information that was critical to the conviction 
of a defendant came from a local citizen whose life might be at 
risk if it were known that he had provided information against 
the defendant. Or if the information came from an electronic 
intercept, the normal procedure in Federal courts is for the 
person who conducted the intercept to come into court, explain 
how he did it, how his equipment worked, and be subject to 
cross-examination. I don't think that's necessary. To that 
extent, you could have some limitation on the traditional civil 
right of cross-examination, and rightly so, would you not?
    Mr. Haynes. Yes, sir. The President's order says that the 
standard for admission of evidence is that it have probative 
value to a reasonable person. Now, the fact that some aspects 
may or may not be subject to cross-examination would go to the 
weight of the evidence. The triers of fact and the judges, if 
you will, would have to factor that in, and counsel would be 
able to comment on that.
    Senator Sessions. Counsel would be able to comment on it 
and argue the point. I agree.
    Military justice does provide our soldiers and sailors and 
airman and marines more protections than it does the terrorists 
or people who are committing war crimes against the United 
States. But isn't it true that history has proven and that the 
military is quite proud of its justice system and it does rely 
on all participants in it being part of the military chain of 
command?
    Mr. Haynes. Yes, sir.
    Senator Sessions. So it strikes me that some believe juries 
can know nothing or have no connection whatsoever to a case. 
But in the military, every military man and woman is tried by 
fellow officers and enlisted people in general of a higher rank 
than they, isn't that correct?
    Mr. Haynes. That's correct.
    Senator Sessions. I'm just real proud of the military 
justice system, Mr. Chairman. I, in the Army Reserves, served a 
few years as a JAG officer, although I never did attend the 
wonderful JAG school at the University of Virginia. It's one of 
the finest legal schools in the world, I think, and it turns 
out people who are committed to justice. Military men and 
women, officers particularly, are used to following orders and 
directives. If they're told to follow this evidence and exclude 
this evidence or admit this evidence, they will do so, and they 
will do so with integrity. It's done every day. People should 
not believe that just because this is a military matter that 
they have any desire whatsoever to convict an innocent person. 
Why would a military person want to do that? We have some on 
the extreme left and the extreme right that are so hostile to 
government that they are paranoid about any kind of final 
decision making process, and I think you have a good system 
here of allowing for appeals and creating a system that will be 
just. If not, Congress and the world will judge you for it. 
That's a high burden, I believe. Thank you.
    Chairman Levin. Thank you.
    Let me read the order now of recognition, assuming they're 
here. On the Democratic side, Senators Akaka, Ben Nelson, Bill 
Nelson, Dayton, Bingaman, Cleland, Lieberman, Landrieu. On the 
Republican side, Senators Collins, McCain, and Smith, in order 
of appearance. So the next who is here would be Senator Ben 
Nelson.
    Senator Ben Nelson. Thank you, Mr. Chairman. Thank you, Mr. 
Secretary, for coming back to appear before us. We're getting 
to know one another quite well from these exchanges. Mr. 
Secretary, I know I speak, as others have, for the American 
people in thanking you for what you and the men and women in 
the military are doing, demonstrating significant courage and 
commitment, and we wish you and all of them well in this 
endeavor, particularly in the days ahead.
    I also realize that this is a question-and-answer period, 
but probably it's most enlightening for both of us just simply 
to express our concerns rather than try to get specific answers 
back from you on these issues. It's premature, but at least it 
will give you an idea of what concerns we have as you move 
through this process, both you and Mr. Haynes. I appreciate 
that opportunity, because you may be able to bundle together a 
process of appellate procedures, rules for proceeding, rules of 
evidence, certainly whether it's something that ought to be 
public or private, what kind of appeal might be taken, and all 
of those elements of the tribunal system will be important. I 
think you're hearing from each of us today our concerns about 
making sure that this system of justice isn't some weakened 
shadow of the justice of the American system that for over 200 
years has continued to evolve in a rule of law rather than a 
rule of man. I believe that is very compelling, to be sure that 
what we do is appropriate under all the circumstances.
    One of the most compelling arguments for the tribunal 
system, I think, in this particular case is the security issue 
of the individuals who are involved in the system, in the 
process, being able to provide that security against an 
invisible foe, one who has already demonstrated a willingness 
to disregard human and innocent life. I think that certainly is 
important.
    The civilian process of working through that, I think, only 
raises more security issues. So I truly believe that is one of 
the most compelling reasons for doing it--not to weaken the 
justice system, not to get a diluted justice system for other 
individuals, but for security purposes.
    I know that there will be another opportunity for you to 
come back and, at that point in time, probably questions will 
be more in order, rather than just simply giving you our 
thoughts, and so I will withhold any questions--specific 
questions, rather than to put you on the spot.
    Secretary Wolfowitz. Well, that's very helpful. We have had 
some very useful exchanges this morning.
    Senator Ben Nelson. Well, I think it isn't fair to keep 
asking you questions when you're saying, ``Look, we haven't put 
this together.'' So what I would like to suggest is that as you 
think about whether the evidence is retained in private or 
whether it's public, that there may be instances, as with the 
bin Laden video, that it's less about a particular trial or a 
particular tribunal situation, and more about the public and 
the desire of the public to know, on the one hand, but really 
the importance of having the public more aware of what's going 
on with respect to somebody's guilt or innocence.
    So I hope you will think about that, because once you start 
the process, unless you have fit in some sort of an exception--
a waiver, exception, something like that--we may commit 
ourselves to a process that we could regret in the long-term or 
violate our own principles of justice, fairness, and due 
process that we are seeking to protect.
    Thank you very much for being here. I look forward to 
another opportunity. Perhaps if I have some questions along the 
way, I might submit them to Mr. Haynes.
    Secretary Wolfowitz. We appreciate that very much, Senator, 
and I appreciate your comments.
    Senator Ben Nelson. Thank you. Thank you, Mr. Chairman.
    Chairman Levin. Senator Smith.
    Senator Smith. Thank you very much, Mr. Chairman. Mr. 
Chairman, is it 8 minutes?
    Chairman Levin. Yes.
    Senator Smith. Good morning, Mr. Secretary and Mr. Haynes. 
It's great to see you here. Let me join the chorus of those who 
have commended you for the outstanding job you're doing and 
will continue to do in this effort to fight against the 
terrorist networks around the world, and specifically 
Afghanistan. We appreciate your coming up. There has been a lot 
of controversy since the President announced the tribunal 
issue, and I think it is great that you came here and clarified 
a lot of the questions.
    I might just say, Mr. Haynes, I'm sure you've had a lot of 
documents referenced to you, but I would refer one to you. In 
The Federal Lawyer, November-December, a senior judge of the 
Military Court of Appeals, the Honorable Robinson Everett, 
wrote a very interesting article entitled ``The Law of War 
Military Tribunals and the War on Terrorism''. It's a good 
overview, which you may find helpful. I would ask unanimous 
consent that it be put in the record.
    Chairman Levin. That will be made a part of the record.
    [The information referred to follows:] 

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    Senator Smith. I wasn't here during your earlier testimony, 
but I was watching it on television, and you did reference a 
number of tribunal precedents, Mr. Secretary. President Truman 
used one, as well, on the Bataan Death March--I don't believe 
that one was mentioned--in the Yamashita case. They used it 
again trying German soldiers spying in China against America 
after the surrender of Germany. His decision was upheld by the 
Supreme Court in Johnson versus Eisentrager.
    It's interesting. Every time it's been used, it's been 
upheld by the courts. So those who join this chorus of 
unconstitutionality have very little, if any, evidence to 
support that charge at all. Interestingly, one decision was 
written by Justice Jackson, who was the lead prosecutor in the 
war crimes trials in Nuremberg. So I think many have suggested 
the constitutional issue.
    Although it sounds good about whether or not an alien 
terrorist will have constitutional rights, the truth is that's 
not what the Supreme Court had in mind. On the contrary, in the 
Eisentrager case, the most recent opinion regarding military 
tribunals, the court held that there were no incidents, ``where 
a court, in this or any other country where a writ of habeas 
corpus is known, has issued it on behalf of an alien enemy who, 
at no relevant time and at no stage of his captivity, has been 
within its territorial jurisdiction.'' Nothing in the text of 
the Constitution extends such a right, period.
    Every time, that I can find, the Supreme Court has upheld 
these tribunals. I would not want to be in a position where bin 
Laden were to be let go because somebody didn't read him his 
Miranda rights. I don't think that would go over very well. I 
certainly do not believe that his kind should be entitled to 
the benefit of civilian Federal criminal procedure where good 
lawyers would have a lot of fun with that. I don't think we 
need that in America.
    I would make one other point, then, and ask a couple of 
very specific questions. In the chorus of critics, I remember 
when President Clinton signed a treaty to create the 
International Criminal Court, which, if Americans were hauled 
before it, would deny them basic rights, including trial by 
jury, number one, of their peers, protection from double 
jeopardy, and the chance to confront one's accusers. As a 
matter of fact, Secretary Rumsfeld, I think, warned that ``the 
American leadership could be the first casualty of the ICC''.
    Did you have any input into that comment, Mr. Secretary? Or 
could you clarify what you might have meant by that?
    Secretary Wolfowitz. I don't. I mean, I think it speaks for 
itself. It's pretty clear.
    Senator Smith. It does speak for itself. Let me ask Mr. 
Haynes just a few questions. If you can answer, fine. If you 
can't, when you know, we will hear it or you could provide it 
for the record.
    Do you intend to hold all trials of alien terrorists who 
are not here in the United States exclusively outside the U.S. 
borders?
    Mr. Haynes. Senator, there have been no decisions about 
that, either in the regulations and indeed----
    Senator Smith. No decision?
    Mr. Haynes. That's correct.
    Senator Smith. Okay. In 1995, I had language added to a 
piece of legislation that provided for a judge to be set up to 
hear evidence on the deportation of those who may be involved 
in terrorist activities. The problem is, of course, it's never 
been used, because the intelligence community doesn't want to 
compromise sources and methods by providing the information to 
the terrorist or his attorney.
    Why can't we come back, in the case of those where we might 
have good information that they may be involved in a network 
but haven't committed a crime yet--is there any feeling in the 
administration that we could re-institute those courts and 
provide deportation to some of these people?
    Mr. Haynes. I'm not familiar with that option, Senator. I 
will look into it and get back to you.
    [The information referred to follows:]

    The Alien Terrorist Removal Court of the United States, established 
pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 
remains the law of the land. We are in the process of coordinating with 
the Department of Justice about this option.

    Senator Smith. Alright. Back onto the promulgation of the 
rules. Have you given any thought to only using uniformed 
military officers to practice before the tribunal?
    Mr. Haynes. That's certainly one of the options. Yes, sir.
    Senator Smith. Clarifying in advance the rules of procedure 
by making applicable the Manual for Courts-Martial?
    Mr. Haynes. The President has made a finding in the order 
that it is not practicable to use the normal rules. Now whether 
and to what extent the Secretary of Defense may choose among 
those or create totally different ones, we haven't decided.
    Senator Smith. What about using judges from the Military 
Court of Appeals, active or retired?
    Mr. Haynes. That is an option.
    Senator Smith. Can their privacy be protected in these 
trials in a way that they would avoid some of the problems that 
have already happened in the case of the judge who heard the 
one terrorist case earlier in the New York?
    Mr. Haynes. I believe you're referring to the 1993 
conviction.
    Senator Smith. Yes.
    Mr. Haynes. In that, the security of the people who 
administer the process is certainly a concern and conceivably, 
along with other factors, might be a factor in deciding whether 
and to what extent proceedings might be held outside of the 
press.
    Senator Smith. Last question. I'm assuming you're going to 
draw pretty heavily on the Nuremberg trials, and that's 
probably the best historical example we have. Is that correct?
    Mr. Haynes. The Nuremberg trials were international trials, 
as opposed to United States tribunals, but the procedures there 
are certainly very helpful to----
    Senator Smith. That's what I'm talking about, the 
procedures.
    Thank you very much, Mr. Chairman.
    Chairman Levin. Thank you, Senator Smith. Senator Bingaman.
    Senator Bingaman. Thank you very much, Mr. Chairman. Thank 
you, Secretary Wolfowitz. I appreciate both of you being here. 
Let me put this in a very broad context. As I see it, what we 
are talking about here are really three stages. There is the 
stage at which the President makes his determination that 
someone is a foreign terrorist or a war criminal. I think under 
the order here, he makes the determination that someone is 
engaged in acts of international terrorism. So that's the first 
stage.
    The second stage is what you would be responsible for. That 
would be conducting the full and fair trial of any such person 
who was previously determined by the President to have been 
engaged in acts of international terrorism. Then the third 
stage would be any appeal or any judicial review or any review 
by anybody of what occurred at the trial. So that's a very 
general way to think about it.
    I'm concerned about the first stage, where the President--
in this order, it says--this term, ``individuals subject to the 
order shall mean any individual who I determine from time to 
time in writing as engaged in acts of international acts of 
terrorism or abetted or aided in that.'' Do we have a 
definition of ``international terrorism''? Is there any limit 
on the President's ability to make a determination in that 
regard?
    Mr. Haynes. If I may, let me qualify a little bit about 
what you've said at the outset. The President's order says that 
he doesn't necessarily make a determination at the outset that 
they are a terrorist.
    Senator Bingaman. It does. It says, ``Whom I determine from 
time to time in writing that, first, there's a reason to 
believe the individual at the relevant times is not a citizen 
and, second, that they have committed an act of international 
terrorism.''
    Mr. Haynes. That is correct. The words that I was beginning 
to focus on are ``that there is reason to believe.'' So, in 
other words, he is not making a determination at that point.
    Senator Bingaman. So he just has to make a determination 
that there's reason to believe that.
    Mr. Haynes. That's correct. He also has to factor in, not 
just the language that you quoted, but he also makes a separate 
determination that it is in the interest of the United States 
that such individual be subject to the order. So there are a 
couple of self-imposed standards that he----
    Senator Bingaman. But is there any definition of what we're 
looking at when we talk about an act of international 
terrorism?
    For example, when Timothy McVeigh blew up the Federal 
building there in Oklahoma, if he had been a foreign national 
legally resident in this country, would he be someone who had 
engaged in an act of international terrorism, in your opinion?
    Mr. Haynes. Well, you make an important qualification. The 
President's order does not include U.S. citizens. So when you--
    Senator Bingaman. I'm saying if he had been a foreign 
national, would that be a case that would be appropriate for a 
military tribunal?
    Mr. Haynes. It might be, depending on all of the facts 
present at the time. If the President made the determination 
that there was reason to believe that--again, in looking at the 
order, it is not just international terrorism, it's also ``is 
or was a member of the organization known as al Qaeda, has 
engaged in, aided and abetted,'' and so forth, or has knowingly 
harbored. Now, those are in the alternative.
    Senator Bingaman. The question is, is blowing up the 
Federal building in Oklahoma an act of international terrorism? 
You're saying it may well be.
    Mr. Haynes. You have changed the facts so significantly 
already. Let me play that out. One would think that the 
President would consider whether that had some link outside the 
country to make it international.
    Senator Bingaman. So the fact that the person was foreign 
would not necessarily make it international.
    Mr. Haynes. That is the President's determination to make.
    Senator Bingaman. But there's no limit on the ability of 
the President to make that. He is well within his rights, as 
you see it, to make that determination that McVeigh should be 
tried in a criminal tribunal--in a military tribunal.
    Mr. Haynes. I'm very uncomfortable talking about an 
individual who is a U.S. citizen, who is specifically not 
subject to the order. So using the----
    Senator Bingaman. Well, let me ask about another one. What 
about Ted Kaczynski? If he were foreign--if he had been a 
foreign national, do you see any problem with the President 
making a determination that his activities in mailing these 
explosive devices to people was an act of international 
terrorism?
    Mr. Haynes. If you're positing a non-U.S. citizen engaged 
in international terrorism and whether those acts had some 
nexus to something outside the country--I think that would be 
an important factor for the President to consider. You haven't 
put that in your hypothetical. So if the acts were purely 
within the United States----
    Senator Bingaman. You're saying there has to be some nexus 
to something outside the country in order for this to apply.
    Mr. Haynes. Well, in order for it to be international 
terrorism, one would think that there would have to be 
something outside the United States, some means to make the 
determination that this is international in character.
    Senator Bingaman. Usually, military tribunals, as I 
understand it, have been invoked and used when you are, in 
fact, trying people who are engaged in some kind of military 
action against our country. Is that a fair statement? One of 
your statements here, Secretary Wolfowitz, is that it is well 
established that a foreign national who is engaged in armed 
conflict against the United States has no constitutional claim 
to rights and procedures that would apply. I guess the question 
is, is that what we're talking about here? People who are 
engaged in armed conflict with the United States?
    Mr. Haynes. It is the purpose of this order to try war 
crimes.
    Senator Bingaman. War crimes, meaning the person who is 
going to be subject to this needs to be engaged in some kind of 
a war effort against our country, not just a freelance 
terrorist who has a point of view that is inimical to our 
general point of view or our policies or our way of government 
or whatever.
    Mr. Haynes. I think that is a fair way to look at it, but I 
also want to reiterate that, as written, the President's order 
requires a specific written individual determination by him 
which recognizes the fact that these cases will depend on all 
the facts and circumstances. So I don't want to generalize too 
much beyond what's in the order.
    Senator Bingaman. Is there going to be any kind of a 
threshold or a set of procedures that the President would 
adhere to in making his determination? To what extent is his 
determination in any way reviewable? I guess there's no review 
of it under the order that has been issued.
    If, for example, someone were to be turned over or 
determined by the President to be subject to this order, and he 
determines that there is evidence to indicate that you're 
involved in international terrorism, there is no way to dispute 
that. I mean, there's no way to say, ``I deserve to be tried in 
a Federal court.''
    Mr. Haynes. Well, there will be a trial.
    Senator Bingaman. But prior to actually having the trial in 
the criminal court or in the military court, there is no way to 
say, ``I deserve to be tried in a regular Article III Court 
under the Constitution because I do not meet the criteria that 
would justify the President putting me in a whole different 
system.''
    Mr. Haynes. That's correct.
    Senator Bingaman. So there's no review.
    Secretary Wolfowitz. The order makes clear that the first 
criteria is if the President has reason to believe that the 
individual is or was a member of the organization known as al 
Qaeda. That is, I think, clearly where the focus is. If one 
takes one of your purely hypothetical cases of somebody who 
simply is a foreign national, if there's none of the reasons 
that would apply to preserving the security of the trial, no 
connections to foreign terrorist groups that would threaten the 
safety of judges and jurors, no reason to have classified 
evidence collected abroad by intelligence agencies, none of the 
reasons we've explained for the reason of the order--we're not 
here to prejudge or take away the President's discretion, but 
that kind of case, it seems to me, starts to define itself into 
the regular civilian court system, and we have a perfectly 
effective civilian court system for trying people guilty of 
acts of terrorism, including Mr. Moussaoui, who has clear links 
to al Qaeda.
    So, maybe I'm making a mistake in getting into the legal 
issues. There are a lot of hypotheticals, and we have to be 
very careful. The President does have a lot of authority, but 
it seems to me the Quirin case was precisely a case of where 
the courts reviewed whether that authority was properly 
exercised, and it was judged that it was.
    I think someone who was your--I've forgotten the name of 
the Unabomber--the Unabomber, but with foreign nationality, 
would have, I think, lots of ways to make sure that they were 
properly put into the military tribunal system, if they were.
    Senator Bingaman. Well, properly put in the military 
tribunal system or properly put into the Federal court system?
    Secretary Wolfowitz. Either one.
    Senator Bingaman. So you think they would have a right to 
be tried in the Federal court system?
    Secretary Wolfowitz. No, I didn't say that. I think they 
would have an opportunity, because they're here in the United 
States, to appeal for habeas corpus.
    Senator Bingaman. My time is up. Mr. Chairman, thank you.
    Chairman Levin. Senator Lieberman.
    Senator Lieberman. Thank you, Mr. Chairman. Thank you, 
Secretary Wolfowitz and Mr. Haynes. I appreciate the 
discussion. It's been very helpful.
    It strikes me that part of what we're all wrestling with 
here is that we're dealing with a matter of first impression 
for most of us. We have not been involved in the United States 
constituting military tribunals for war crimes, at least not in 
my direct involvement, for some period of time. We have 
witnessed, in recent times, international war crimes tribunals 
which have tried people involved in the Rwanda genocide and the 
Balkans, as well. So we are working our way through this. I'm 
doing the same myself.
    The other problem here is that we are a country that prides 
itself on adhering to the rule of law, and yet we are, for all 
intents and purposes, at war. One of the distinctions I think 
that we are trying to make is how appropriately, as a country 
where we value the rule of law, do we handle those who we 
capture as part of this war. In other words, for some time 
there's been criticism that we've been treating terrorism too 
much as a legal violation instead of what it was--and it became 
clear on September 11 that it was an act of war.
    In the reading and thinking that I've done about this, it 
certainly does seem clear to me that the President has the 
right to constitute military tribunals for violations of the 
laws of war. Perhaps because this is a matter of first 
impression, I think a lot of people have been imagining the 
worst as they consider how these military tribunals might be 
used. It is also true, probably, that they've been imagining 
the worst because the specific wording of the military order 
is, in some senses, vague and requires the kind of guidelines 
that you're now working on and the reassurances people are 
looking for.
    The order was also issued in the context of other actions 
that have alarmed people, the several hundred people detained, 
the broad and mass questioning of Arab Americans or Muslim 
Americans.
    But it does seem to me that today you have offered what I 
was hoping for, and I hope the guidelines provide also, which 
is reassurance as to the way this administration is going to 
employ military tribunals as part of our war against 
terrorism--rights of appeal, rights of habeas corpus, full and 
fair trial, and what that means. So I appreciate that.
    I want to talk to you about the indictment yesterday of 
Zacarias Moussaoui. This is the first criminal charge filed by 
the United States Government directly related to the attacks 
against us on September 11. I'm going to share with you my 
first impression, because I've just begun to think about it 
this morning, and maybe you or others will alter my impression. 
But my first impression is that the actions taken against Mr. 
Moussaoui go beyond reassurance and they are actually quite 
troubling and, to me, surprising, because we have taken here a 
non-citizen of the United States, not even a lawful permanent 
resident of the United States, a French citizen of Moroccan 
descent, who, according to the charges filed against him, ``Is 
accused of conspiring with Osama bin Laden and al Qaeda to 
murder thousands of innocent people in New York, Virginia, and 
Pennsylvania on September 11''.
    This is not some foot soldier in al Qaeda hiding in a cave 
over in Afghanistan. This is a guy who came to the United 
States--according to the indictment that I read in the papers 
this morning--who conspired with the other 19 and, allegedly, 
directly with bin Laden at some point, to carry out these acts 
that killed thousands of our fellow Americans. He is a non-
citizen, not entitled to the protections of the Federal 
district courts of the United States of America.
    So I'm troubled by the precedent that this sets as to what 
the administration will do regarding those who have violated 
the laws of war. I mean, what greater violation of the laws of 
war could there be than to have been a coconspirator in the 
attacks that resulted in the death of 4,000 Americans here on 
our soil? His direct involvement in that being constrained only 
by the fact that he was apprehended because people at the 
flight simulation he was training at, presumably to carry out 
one of the attacks, reported him?
    I mean, if we will not try Zacarias Moussaoui before a 
military tribunal, a non-citizen accused of being a 
coconspirator in the attacks that killed 4,000 Americans, who 
will we try in a military tribunal? What standard does this set 
for what will be done? I mean, surely it can't be just the 
happenstance that he was apprehended in the United States of 
America as opposed to Afghanistan or somewhere else in the 
world.
    I must say, Secretary Wolfowitz, in the three points--or is 
it four--that you mentioned in your opening statement, as to 
why military commissions should be used--we can better protect 
civilian judges, jurors, and courts from terrorist threats and 
assure the security of the trial itself, Federal rules of 
evidence often prevent the introduction of valid factual 
evidence for public-policy reasons that have no application in 
a trial of a foreign terrorist, third, military commissions can 
allow the use of classified information without endangering 
sources and methods--every one of those, I would argue, on 
first impression this morning, argues for Mr. Moussaoui to be 
brought before a military tribunal. So I find this a troubling 
decision, and I wonder if you could reassure me.
    I mean, this guy, to use the parlance of the regular 
criminal courts of the United States, is a ``big fish,'' and I 
fear that the decision to try him in the Federal district 
courts of the United States, with all the rights of evidence 
and rules of evidence and rights of due process, may let this 
big fish get away. The other 19 criminals who carried out these 
acts are dead. We happen to have grabbed this guy, and, I don't 
want the rules of hearsay to be applied to this case. He 
doesn't deserve the rules of hearsay to be applied to him or 
any of the other rights that citizens of the United States have 
when accused of a crime.
    So I am troubled, and I wonder--I suppose I ought to ask 
the direct question, whether the Department of Defense was 
consulted before the decision was made by the Justice 
Department to try Zacarias Moussaoui in the Federal district 
courts?
    Secretary Wolfowitz. We were not, Senator, and so I 
probably should be careful not to speculate about the 
considerations. But it does seem to me that presumably the 
decision by the Justice Department to indict Mr. Moussaoui in a 
civil court is an indication that they believe they did not 
have, for example, the problem that I mentioned of evidence, 
important evidence that might not be admitted under normal 
rules of procedure or the problem of relying on classified 
evidence, and that they could probably convict this man in the 
civil court.
    Remember, the goal of these military tribunals is to be 
able to have full and fair trials and defend the United States. 
I think there's more than one instrument for achieving that. 
The President has made it clear there may be circumstances in 
which this one is necessary. I wouldn't want to go further.
    Senator Lieberman. I suppose I'm relieved to hear that the 
Department of Defense wasn't involved in this decision. As I 
said, I think it goes beyond reassuring us and takes an 
enormous risk with the only person we have in our hands right 
now who, in my opinion, based on the evidence I've read, was 
directly involved in preparing to carry out the attacks of 
September 11. I think it takes a large risk to bring him before 
the district court, with all the rights that he would have 
there, that he doesn't deserve, frankly.
    Mr. Haynes, I'm sorry, did you have a comment?
    Mr. Haynes. Well, Senator, we don't know everything the 
Department of Justice knows. I actually think that you might 
draw some comfort from the fact that this may be an 
illustration of how carefully the President intends to employ 
this tool that he has created in this military order.
    The man that you're describing was apprehended before 
September 11. He is in the criminal justice system in the 
Article III Criminal Justice System. Unless the President makes 
a specific written determination that he should be subject to 
the order under those terms and that it is in the National 
interest or the interest of the United States to provide him to 
the Secretary of Defense, then he should stay there. But we are 
unable to comment on what evidence they may have.
    Senator Lieberman. My time is up. I thank you both.
    Chairman Levin. We have to conclude now, under the Senate 
rules. There has been an objection filed, and we have no 
alternative but to adjourn this hearing.
    I want to just conclude, though, with a follow-up to 
Senator Lieberman's question. Was the Secretary of Defense, or 
the Defense Department, consulted on the drafting of the 
Presidential order prior to its being issued?
    Secretary Wolfowitz. Yes, we were.
    Chairman Levin. You were involved in the drafting?
    Secretary Wolfowitz. We were consulted on it.
    Mr. Haynes. We were consulted, but I don't think we can 
comment on what advice we gave.
    Chairman Levin. I'm not asking for that. Did you give 
advice on the order? I'm not asking what it was. I'm just 
asking whether you gave advice?
    Mr. Haynes. Our views were consulted.
    Chairman Levin. Senator Lieberman has raised an important 
point on Mr. Moussaoui. I must say, I am not reassured that you 
weren't consulted. It is hard to imagine that in a matter that 
fits the military tribunal order the way the Moussaoui case 
appears to fit it, you weren't consulted because then you'll be 
applying these criteria in other cases which are very similar 
or maybe the same as Moussaoui's case. So I'm kind of amazed 
you weren't consulted.
    Senator Lieberman. Senator Levin, if I may, I would accept 
your amendment. I guess I was speaking more directly to 
Secretary Wolfowitz, who I have such a high regard for, and I 
didn't want to believe that he was consulted before this 
decision was made. But you are absolutely right. It is wrong 
not to have consulted the Department of Defense because we are 
at war and Moussaoui is a war criminal. He was a soldier who 
attacked American civilians, and therefore, I hope the 
Department of Defense will be consulted in each and every 
future decision of this kind that is made.
    Chairman Levin. Secretary Wolfowitz, when I left here to go 
to vote, I was asked by many members of the press whether the 
decision has been made to withdraw from the ABM Treaty. That 
was the question I was asked most often by members of the 
press. Has the decision been made to withdraw from the ABM 
Treaty?
    Secretary Wolfowitz. Senator, I think the President and the 
Secretary of State and Secretary of Defense have made it 
clear----
    Chairman Levin. I understand. Has the decision been made to 
withdraw?
    Secretary Wolfowitz. As far as I know, Senator, no final 
decision has been made yet.
    Chairman Levin. Has not been?
    Secretary Wolfowitz. As far as I know, no final decision 
has been made yet.
    Chairman Levin. Under the rules of the Senate, we are 
required to adjourn. We will come back again, because the 
hearing is not completed, but we have no alternative, under 
Senate rules now, but to stop exactly where we are. So the 
hearing will stand in recess.
    [The prepared statements of Senators Akaka and Thurmond 
follow:]
             Prepared Statement by Senator Daniel K. Akaka
    Thank you, Mr. Chairman. I thank you for holding this hearing and I 
appreciate Deputy Secretary Wolfowitz and Mr. Haynes for taking the 
time to join us this morning. It is well within the President's 
authority to convene military commissions. The terrorist attacks on 
September 11, 2001, were acts of war. Military tribunals have been 
utilized many times during our country's history. I am interested, 
however, in how the Department plans to implement the military order on 
November 13, 2001, to ensure fairness and justice.
                                 ______
                                 
              Prepared Statement by Senator Strom Thurmond
    I welcome the opportunity to hear from our distinguished panel on 
how the Department of Defense plans to implement the President's order 
on the detention, treatment, and trial by military commissions of 
certain non-citizens in the war on terrorism. Hopefully, today's 
hearing will clear up the misconceptions held by individuals in this 
country and the rest of the world on the role of the Military 
Commission.
    Mr. Chairman, I support President Bush's military order. Not only 
is the President's order historically based, but it was issued pursuant 
to current law. Military commissions are rooted in American history, 
from the trial of deserters in the Mexican-American War to the trial of 
President Lincoln's assassins, to the trials of Nazi saboteurs during 
World War II. Congress has recognized the role of the military 
commissions by codifying their use in Title 10 of the United States 
Code.
    Military commissions to try non-citizens are also good ideas as a 
matter of policy. These commissions would allow for the use of 
classified information, while protecting it from inadvertent release. 
They would protect the identity of witnesses and other trial 
participants. They allow for more flexible rules of evidence to take 
into consideration the fog of war. What they do not allow is the 
miscarriage of justice and that should be the focus of today's hearing.
    Mr. Chairman, those responsible for the deaths of the thousands of 
innocent victims at the World Trade Center and the Pentagon acted 
outside the norms of the civilized world. Their deeds were an act of 
war! The President's executive order, providing for the detention and 
possible trial of terrorists in military courts, recognizes this and is 
an appropriate response to the events of September 11, 2001.
    Thank you, Mr. Chairman.

    [Questions for the record with answers supplied follow:]
               Questions Submitted by Senator Carl Levin
                            chain of command
    1. Senator Levin. Secretary Wolfowitz, both the Department of 
Defense and the Department of Justice have acknowledged the authority 
of the Secretary of Defense to prescribe appellate procedures for the 
military commissions. Both Departments have also acknowledged that 
habeas corpus is available only to an individual tried by a military 
commission in the United States. That leaves individuals tried by a 
commission outside the United States without a right to appeal to an 
independent entity unless it's specifically provided for in the 
regulations. The right to such appeal becomes more important if the 
military commissions are comprised only of persons in the military 
chain of command, because in that case the accuser and the trier are 
blended into one. If the death penalty is an option, the situation 
becomes of greater import. Courts-martial, which are heard by uniformed 
personnel within the chain of command, provide for appeal to the U.S. 
Court of Appeals for the Armed Services, an independent entity outside 
the chain of command. It also allows for final appeal by certiorari to 
the U.S. Supreme Court. The issue of the independence of the tribunal 
and an outside appeal are related. What are your thoughts on the need 
for the inclusion of individuals outside of the chain of command in the 
composition of the military commission?
    Secretary Wolfowitz. DOD continues to consider a full range of 
options regarding who will be eligible to participate on military 
commissions. Although Secretary Rumsfeld has not yet made a 
determination regarding the final implementation procedures, his goal 
is to ensure that every military commission will comply with the 
President's directive to provide a ``full and fair trial,'' and will 
reflect our Nation's commitment and dedication to uphold the highest 
traditions of the law.

    2. Senator Levin. Secretary Wolfowitz, what are your thoughts on 
the need for appeal to an independent entity, particularly if the 
military commissions are comprised only of persons in the chain of 
command?
    Secretary Wolfowitz. DOD is committed to providing appropriate 
review of military commission decisions. To achieve this end, DOD is 
reviewing past and present domestic and international tribunals for 
appropriate models.

                              consultation
    3. Senator Levin. Secretary Wolfowitz, in your testimony before the 
committee, you said the Department is consulting a wide array of 
individuals and experts, in and out of government, to discuss how 
military commissions should operate. Please identify all persons and 
entities the Department has consulted and explain how you selected such 
persons and entities.
    Secretary Wolfowitz. A number of Members of Congress have contacted 
DOD to express their views regarding how military commissions should 
operate. Additionally, DOD has received candid and confidential 
suggestions from a considerable number of individuals and 
organizations, inside and outside government, to ensure the final 
implementation procedures meet our present needs in the ongoing war 
against terrorism and uphold our values and commitment to the rule of 
law. Among the individuals outside government who have been consulted 
are: Judge Griffin B. Bell; Hon. William T. Coleman; Lloyd N. Cutler; 
Hon. Martin R. Hoffman, Professor Bernard D. Meltzer; Hon. Newton N. 
Minow; Hon. Terrence O'Donnell; Judge William H. Webster; and Professor 
Ruth Wedgwood. These individuals were selected for their experience and 
their range of views. Additionally, a large number of organizations 
outside government have forwarded unsolicited recommendations, 
including: the American Bar Association; the American Civil Liberties 
Union; the American Jewish Committee; Amnesty International; the 
Association of the Bar of the City of New York, Standing Committee on 
Military Affairs and Justice; the Bar Association of the District of 
Columbia; the Center for National Security Studies; the Committee to 
Protect Journalists; Defender Legal Services; Human Rights Watch; the 
Lawyers Committee for Human Rights; the National Association of 
Criminal Defense Lawyers; the National Institute of Military Justice; 
the Nuremberg Legacy Project; and the Robert F. Kennedy Memorial Center 
for Human Rights.

                             death penalty
    4. Senator Levin. Secretary Wolfowitz, in your testimony before the 
Committee, you stated that you are confident that the Department will 
develop a process that Americans will have confidence in and which is 
fully consistent with the principles of justice and fairness our 
country is known for throughout the world. However, the President's 
Order treats death and imprisonment in the same way. Both can be 
imposed with a two-third's majority of a quorum of the members of the 
commission. In the case of a five member commission--it's conceivable, 
albeit highly unlikely, that the death sentence could be invoked with 
only two members of the commission voting for it. We are already 
hearing from some of our allies that they may not extradite suspects to 
the United States if they face the death penalty under any 
circumstances. Doesn't the absence of a requirement for a unanimous 
verdict for a death penalty in the order make that more likely?
    Secretary Wolfowitz. Secretary Rumsfeld is still deliberating 
regarding the final implementation procedures, including issues related 
to capital punishment. While the United States and some allied 
governments have differing perspectives on this sensitive issue, DOD is 
working closely with the Departments of State, Justice, and others to 
build upon our very successful effort to achieve a broad coalition of 
nations committed to defeating terrorism.

    5. Senator Levin. Secretary Wolfowitz, shouldn't the imposition of 
the death penalty require a unanimous verdict?
    Secretary Wolfowitz. Secretary Rumsfeld is still deliberating 
regarding that decision.

    6. Senator Levin. Secretary Wolfowitz, the order leaves open the 
possibility that a death penalty could be imposed based on only a 
preponderance of the evidence. That could mean a sentence to death 
based on only 51 percent of the evidence. Do you think it meets our 
standards of justice and fairness to have a death sentence imposed on a 
preponderance of the evidence?
    Secretary Wolfowitz. Every military commission will comply with the 
President's directive to provide a ``full and fair trial.'' Secretary 
Rumsfeld is still deliberating regarding procedures relating to 
imposition of the death penalty.

                            executive review
    7. Senator Levin. Secretary Wolfowitz, the President's Military 
Order provides that the Secretary shall issue such orders and 
regulations as may be necessary to carry out any of the provisions of 
the order. Will there be any review within the executive branch of such 
orders and regulations prior to their issuance?
    Secretary Wolfowitz. Yes. DOD is coordinating closely with a number 
of other agencies involved in protecting our national security.

                              trial rules
    8. Senator Levin. Secretary Wolfowitz, will the same rules and 
procedures apply to all individuals who are designated for trial by 
military commissions or will there be different rules and procedures 
for different individuals?
    Secretary Wolfowitz. DOD is considering a uniform set of procedures 
at this time.

    9. Senator Levin. Secretary Wolfowitz, will the orders and 
regulations be proposed for comment before promulgation?
    Secretary Wolfowitz. Secretary Rumsfeld is still deliberating 
regarding that decision.

    10. Senator Levin. Secretary Wolfowitz, the suggestion has been 
made that once the Department has drafted the orders and regulations 
implementing the President's Military Order that they be made available 
to Congress for a limited period of time--say 10 to 15 working days--
before they are formally promulgated, to give Congress the opportunity 
to comment. What is your position with respect to that suggestion?
    Secretary Wolfowitz. DOD is committed to working closely with 
Congress to ensure every military commission convened pursuant to the 
President's Military Order reflects our Nation's values.

                            military justice
    11. Senator Levin. Mr. Haynes, the President's Counsel has likened 
the military commissions to the military justice system. During the 
Committee's hearing, one member said that if the Uniform Code of 
Military Justice is good enough for our soldiers, it is good enough for 
the terrorists. There is obviously confusion about this. The President 
has determined that it is impractical to apply the principles of law 
and rules of evidence generally recognized in the trial of criminal 
cases in U.S. district courts. Since those district court principles 
and rules are so similar to those in the military justice system, it's 
expected that there will be significant differences between the 
military commissions and the military justice system. Do you agree 
there will be significant differences between military commissions and 
the military justice system and that they shouldn't be equated?
    Mr. Haynes. Certainly there are significant differences between 
military commissions and the military justice system. While both are 
dedicated to securing justice, the differences are manifest and the two 
should not be equated.

    12. Senator Levin. Mr. Haynes, please explain what you believe the 
key differences will be between trials at court-martial within the 
military justice system and trials before military commissions.
    Mr. Haynes. Although it is likely that there may be any number of 
differences between courts-martial and military commissions, the key 
difference known at this time is that military commissions will only be 
convened for those individuals defined in Section 2 of the President's 
Military Order.
                                 ______
                                 
             Question Submitted by Senator Daniel K. Akaka
                            pacific location
    13. Senator Akaka. Secretary Wolfowitz, the media has reported that 
the Department of Defense is considering a site in the Pacific for a 
military tribunal. Has there been any discussion about the prospect of 
conducting a tribunal or detaining suspected terrorists in the Pacific, 
either on Guam, Wake Island, any other U.S. possession, or a U.S. 
Pacific military base like Kwajolein Atoll in the Republic of the 
Marshall Islands?
    Secretary Wolfowitz. Secretary Rumsfeld has not made any decision 
regarding detention or trial of suspected terrorists in the Pacific 
region at this time.
                                 ______
                                 
             Questions Submitted by Senator Strom Thurmond
                      value of military commission
    14. Senator Thurmond. Secretary Wolfowitz, although there is no 
doubt that the President has the authority to establish Military 
Commission (sic), there is a question on the benefit of these 
commissions in regard to our Nation's image throughout the World. What 
do you consider the over riding value of these military commissions?
    Secretary Wolfowitz. Military commissions are a vital tool in the 
ongoing war against terrorism because they provide our Nation with a 
means to protect our citizens, our allies, and other cooperating 
nations from further terrorist attacks. They help us to identify 
terrorists and those who support them, to disrupt their activities, and 
to eliminate their ability to conduct or support such attacks. They 
offer a path to achieve justice during a time when an extraordinary 
emergency exists for national defense purposes.

                           scope of tribunals
    15. Senator Thurmond. Secretary Wolfowitz, in testimony before the 
Senate Judiciary Committee, Attorney General Ashcroft stated that the 
scope of offenses to be considered by the tribunals would be limited to 
war crimes. Do you agree with this statement? If so what is (sic) 
definition of war crimes that will apply in this instance?
    Secretary Wolfowitz. Secretary Rumsfeld is still deliberating 
regarding the scope of offenses to be considered by military 
commissions.

                     referral to military tribunal
    16. Senator Thurmond. Secretary Wolfowitz, who other than the 
President will make the determination that an individual will be tried 
before the military tribunal?
    Secretary Wolfowitz. Consistent with his Military Order, the 
President is responsible for determining if an individual is subject to 
the Order and thus may be tried by military commission.

                    uniform code of military justice
    17. Senator Thurmond. Mr. Haynes, Section 802 of Title 10, United 
States Code makes prisoners of war in the custody of the Armed Forces 
subject to the Uniform Code of Military Justice. Section 918 states 
that such person who commits murder ``shall suffer death or 
imprisonment for life as a courts martial may direct. '' Do you intend 
to impose this standard on the military tribunal?
    Mr. Haynes. Secretary Rumsfeld is still deliberating regarding that 
decision.

                            burden of proof
    18. Senator Thurmond. Mr. Haynes, what do you foresee as the burden 
of proof for conviction in military tribunals? Will proof beyond a 
reasonable doubt be too high a burden to impose on prosecutors? Will 
the burden of proof be higher than a preponderance of the evidence 
standard?
    Mr. Haynes. Secretary Rumsfeld is still deliberating regarding that 
decision.

                         structure of tribunal
    19. Senator Thurmond. Mr. Haynes, how will you structure the 
military tribunal? Will members of the tribunal decide matters of fact 
and matters of law? Or will the tribunal be composed of a judge and 
jurors in a system analogous to American civil and criminal courts?
    Mr. Haynes. Secretary Rumsfeld is still deliberating regarding that 
decision.

                         classified information
    20. Senator Thurmond. Mr. Haynes, how will classified information 
be handled? Specifically, in what ways will the procedure differ from 
the use of classified material in the Federal courts under the 
Classified Information Procedures Act (18 U.S.C. app. 3)?
    Mr. Haynes. The Classified Information Procedures Act is a highly 
useful, important law that DOD is reviewing very closely. Secretary 
Rumsfeld is still deliberating with respect to the specific procedures 
for handling information, however.
                                 ______
                                 
              Questions Submitted by Senator Rick Santorum
                              extradition
    21. Senator Santorum. Secretary Wolfowitz, recently, several 
European Union countries have expressed concern with the President's 
order on the use of military tribunals. Spain, for example, has 
abolished the death penalty and bars extradition of suspects who could 
be executed overseas. What steps is the administration willing to take 
in the event that an ally refuses to extradite or turn over a suspect 
to face a military tribunal?
    Secretary Wolfowitz. As noted previously, DOD is working closely 
with the Departments of State, Justice, and others to build upon our 
very successful effort to achieve a broad coalition of nations 
committed to defeating terrorism. Some allied governments have 
differing views on the issue of capital punishment, and we respect such 
views.

    22. Senator Santorum. Secretary Wolfowitz, Secretary of Defense 
Donald Rumsfeld indicated that it might not be necessary to bring 
certain terrorists to justice if arrangements could be worked out with 
other governments willing to put these individuals on trial and ensure 
punishment. How does this statement apply to an ally or state that does 
not permit the use of the death penalty?
    Secretary Wolfowitz. Any such case undoubtedly will present a 
unique set of circumstances and facts. DOD's response would have to be 
tailored to fit the unique circumstances and facts presented.

                       constitutional protection
    23. Senator Santorum. Secretary Wolfowitz, the Fifth Amendment 
guarantees the right to grand jury review prior to indictment, 
prohibits double jeopardy, protects against compulsory self-
incrimination, and guarantees due process of law. The Sixth Amendment 
provides for the defendant to be afforded a speedy and public trial, to 
have the benefit of an impartial jury venued where the crime was 
committed, to be informed of the accusations against him, to be 
confronted by witnesses against him, to be able to use compulsory 
process to obtain favorable witnesses, and to have the assistance of 
counsel. Do you believe that these Amendments are at all applicable to 
a military tribunal, in the event that a tribunal is convened?
    Secretary Wolfowitz. Although an individual subject to the 
President's Military Order is not entitled Fifth and Sixth Amendment 
protections in U.S. courts, Secretary Rumsfeld is committed to 
providing every such individual with appropriate due process rights 
sufficient to comply with the President's directive to provide a ``full 
and fair trial.''

    24. Senator Santorum. Secretary Wolfowitz, while these are military 
trials and the accused are not U.S. citizens, some of the accused may 
be permanent residents. Do you feel it is appropriate to establish 
rules and procedures that closely follow the Fifth and Sixth 
Amendments?
    Secretary Wolfowitz. As noted in the response to the preceding 
question, Secretary Rumsfeld is committed to providing every individual 
subject to the President's Military Order with appropriate due process 
rights. Our military commissions will be a beacon of fairness and a 
source of great pride for all Americans.

    [Whereupon at 11:56 a.m., the committee adjourned.]

                                 
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