[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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]