    [House Hearing, 109 Congress]
    [From the U.S. Government Publishing Office]

                             [H.A.S.C. No. 109-116]

                STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS

                                   __________

                                    HEARING

                                   BEFORE THE

                          COMMITTEE ON ARMED SERVICES

                            HOUSE OF REPRESENTATIVES

                           ONE HUNDRED NINTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  HEARING HELD

                                 JULY 12, 2006

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                       HOUSE COMMITTEE ON ARMED SERVICES
                           One Hundred Ninth Congress

                      DUNCAN HUNTER, California, Chairman
    CURT WELDON, Pennsylvania            IKE SKELTON, Missouri
    JOEL HEFLEY, Colorado                JOHN SPRATT, South Carolina
    JIM SAXTON, New Jersey               SOLOMON P. ORTIZ, Texas
    JOHN M. McHUGH, New York             LANE EVANS, Illinois
    TERRY EVERETT, Alabama               GENE TAYLOR, Mississippi
    ROSCOE G. BARTLETT, Maryland         NEIL ABERCROMBIE, Hawaii
    MAC THORNBERRY, Texas                MARTY MEEHAN, Massachusetts
    JOHN N. HOSTETTLER, Indiana          SILVESTRE REYES, Texas
    WALTER B. JONES, North Carolina      VIC SNYDER, Arkansas
    JIM RYUN, Kansas                     ADAM SMITH, Washington
    JIM GIBBONS, Nevada                  LORETTA SANCHEZ, California
    ROBIN HAYES, North Carolina          MIKE McINTYRE, North Carolina
    KEN CALVERT, California              ELLEN O. TAUSCHER, California
    ROB SIMMONS, Connecticut             ROBERT A. BRADY, Pennsylvania
    JO ANN DAVIS, Virginia               ROBERT ANDREWS, New Jersey
    W. TODD AKIN, Missouri               SUSAN A. DAVIS, California
    J. RANDY FORBES, Virginia            JAMES R. LANGEVIN, Rhode Island
    JEFF MILLER, Florida                 STEVE ISRAEL, New York
    JOE WILSON, South Carolina           RICK LARSEN, Washington
    FRANK A. LoBIONDO, New Jersey        JIM COOPER, Tennessee
    JEB BRADLEY, New Hampshire           JIM MARSHALL, Georgia
    MICHAEL TURNER, Ohio                 KENDRICK B. MEEK, Florida
    JOHN KLINE, Minnesota                MADELEINE Z. BORDALLO, Guam
    CANDICE S. MILLER, Michigan          TIM RYAN, Ohio
    MIKE ROGERS, Alabama                 MARK UDALL, Colorado
    TRENT FRANKS, Arizona                G.K. BUTTERFIELD, North Carolina
    BILL SHUSTER, Pennsylvania           CYNTHIA McKINNEY, Georgia
    THELMA DRAKE, Virginia               DAN BOREN, Oklahoma
    JOE SCHWARZ, Michigan
    CATHY McMORRIS, Washington
    MICHAEL CONAWAY, Texas
    GEOFF DAVIS, Kentucky
    BRIAN P. BILBRAY, California
                       Robert L. Simmons, Staff Director
                     Paul Lewis, Professional Staff Member
                    Lorry Fenner, Professional Staff Member
                       Regina Burgess, Research Assistant

                                C O N T E N T S

                                  ----------

                         CHRONOLOGICAL LIST OF HEARINGS
                                      2006

                                                                       Page

    Hearing:

    Wednesday, July 12, 2006, Standards of Military Commissions and
      Tribunals......................................................     1

    Appendix:

    Wednesday, July 12, 2006.........................................    49
                                  ----------

                            WEDNESDAY, JULY 12, 2006
                STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS
                  STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

    Hunter, Hon. Duncan, a Representative from California, Chairman,
      Committee on Armed Services....................................     1
    Skelton, Hon. Ike, a Representative from Missouri, Ranking
      Member, Committee on Armed Services............................     3

                                   WITNESSES

    Bradbury, Steven G., Acting Assistant Attorney General, Office of
      Legal Counsel, Department of Justice...........................     4
    Dell'Orto, Daniel J., Principal Deputy General Counsel,
      Department of Defense..........................................     7
    Hutson, Rear Adm. John D. (Ret.), President and Dean, Franklin
      Pierce Law Center, Former Judge Advocate General, U.S. Navy....    10
    Olson, Theodore B., Former Solicitor General of the United States     8

                                    APPENDIX

    Prepared Statements:

        Bradbury, Steven G...........................................    60
        Dell'Orto, Daniel J..........................................    71
        Hutson, Rear Adm. John D. (Ret.).............................    96
        Olson, Theodore B............................................    74
        Skelton, Hon. Ike............................................    53
        Udall, Hon. Mark.............................................    98

    Documents Submitted for the Record:

        Guantanamo Bay: New Kind of Law for New Kind of War submitted
          by Glenn Sulmasy...........................................   111
        National Institute of Military Justice, Proposed Amendments
          to the Uniform Code of Military Justice, dated July 5, 2006   101

    Questions and Answers Submitted for the Record:

        Ms. Davis of California......................................   126
        Ms. Sanchez..................................................   115
        Ms. Tauscher.................................................   119
                STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS

                                  ----------

                              House of Representatives,
                                   Committee on Armed Services,
                              Washington, DC, Wednesday, July 12, 2006.
        The committee met, pursuant to call, at 9:57 a.m., in room
    2118, Rayburn House Office Building, Hon. Duncan Hunter
    (chairman of the committee) presiding.

    OPENING STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM
           CALIFORNIA, CHAIRMAN, COMMITTEE ON ARMED SERVICES

        The Chairman. The committee will come to order. This
    hearing addresses standards for military commissions for trials
    involving war crimes. I also want to introduce a new Republican
    Member from California as a member of the committee, and we
    will wait until he arrives before we do that.
        But I want to welcome our distinguished panel. We have with
    us today Mr. Steven Bradbury, Acting Assistant Attorney
    General, Office of Legal Counsel, Department of Justice; Mr.
    Daniel Dell'Orto, Principal Deputy General Counsel, Department
    of Defense; the Honorable Theodore Olson, former Solicitor
    General of the United States; and Rear Admiral John Hutson,
    United States Navy, retired, former Judge Advocate General,
    U.S. Navy.
        Gentlemen, thank you for being with us. We look forward to
    hearing your comments on the recent Supreme Court decision on
    military commissions and where we go from here.
        In Hamdan, the Supreme Court denied the government's motion
    to dismiss, stating the Detainee Treatment Act of 2005, which
    Congress passed at the end of the year, did not deprive the
    Court of jurisdiction. The Court also held that the President's
    rules for military commissions are not legal because they do
    not conform to the Uniform Code of Military Justice and because
    they do not conform to Common Article 3 of the Geneva
    Conventions.
        I think we need to take a close look at each of these
    rulings, but before we go any further, we need to do a reset.
    Make no mistake about the United States is engaged in a war
    with terrorists. Whether we call it a Long War or a Global War
    Against Terror, or some other term, this Nation is at war. The
    enemy declared war in 1996 when Osama bin Laden declared a
    jihad against America. It continued on September 11th, and it
    continues today. We are at war, and we may be at war for a long
    time.
        I emphasize this at the outset because we are here to
    address how America fights wars. All three branches of
    government are involved in this discussion with the Supreme
    Court's decision in Hamdan v. Rumsfeld.
        In Hamdan, the Supreme Court told us to start over when it
    comes to trying the enemy as war criminals. We need to start
    over not just because the Court told us to, but because we are
    in a new type of war against a new type of enemy.
        Justice Thomas put it best in Hamdan. He said, and I quote:
    We are not engaged in a traditional battle with a nation-state,
    but with a worldwide Hydra-headed enemy who lurks in the
    shadows, conspiring to reproduce the atrocities of September
    11th, 2001, and who has boasted of sending suicide bombers into
    civilian gatherings, has proudly distributed videotapes of
    beheadings of civilian workers, and has tortured and
    dismembered captured American soldiers.
        So who are we dealing with in military commissions? We are
    dealing with the enemy in war, not defendants in our domestic
    criminal justice system. And on that point the background that
    I have seen on Mr. Hamdan is that he is accused of being a
    bodyguard for Osama bin Laden, a deliverer of weapons and a
    person who operated convoys for al Qaeda.
        So we are dealing with the enemy in war, not defendants in
    our domestic criminal justice system, that is clear. Some of
    them have returned to the battlefield after we let them out of
    Guantanamo, and this committee has seen pictures of people who
    were released from Guantanamo after they asserted that they had
    had only a peripheral connection with the battlefield and that
    they would be behave themselves if allowed to return home, and
    later on they ended up carrying weapons, shooting at, and
    presumably inflicting injury on American soldiers on the
    battlefield.
        So our primary purpose is to keep them off the battlefield.
    In doing so, we treat them humanely, and if we choose to treat
    them as war criminals, we will give them due process rights
    that the world will respect. But we have to remember they are
    the enemy in an ongoing war. In this new war where intelligence
    is more vital than ever, we want to interrogate the enemy, not
    to degrade them, but to save the lives of American troops,
    American civilian and our allies. But it may not be practical
    on the battlefield to read the enemy their Miranda warnings.
        Classified information is another area which we need to
    look closely at. Do we want to give the enemy the sources and
    methods of how we obtain information? Court-martials in Federal
    criminal trials have special rules to protect classified
    information for our soldiers and civilians, but do we want to
    give battle intelligence to terrorists? In time of war it may
    not be practical to apply the rules of evidence that we do in
    civilian--the same rules of evidence that we do in civilian
    trials or court-martials for our troops. Will commanders and
    witnesses be called from the frontline to testify in a military
    commission, or can we use reliable hearsay and sworn
    affidavits? I note that hearsay is allowed in international war
    crime tribunals for Rwanda and Yugoslavia.
        Justices Stevens and Kennedy, who both shaped the Hamdan
    opinion, each stated that there could be justification from
    deviation from the old rules in this new war. Justice Stevens
    simply said the President did not make such a justification for
    the rules regarding military commissions, although he said such
    a justification might be proper if, and I quote, some practical
    need explains deviations from court-martial practice.
        Justice Kennedy said, again I quote, ``If Congress after
    due consideration deems it appropriate to change the
    controlling statutes in conformation with the Constitution and
    other laws, it has the power and prerogative to do so.''
        So let's see if there is a need or practical reason to
    change the rules. We have to give the executive the tools to
    fight this war. This is not a separation of powers issue; it is
    an issue of how to defeat the enemy. The Supreme Court says
    that we need congressional participation, but in doing so let's
    not forget our purpose is to defend the Nation against the
    enemy. We won't lower our standards, we will always treat
    detainees humanely, but we can't be naive either.
        The war started in 1996 with the al Qaeda declaration of
    jihad against the Nation. The Geneva Conventions were written
    in 1945, and the Uniform Code of Military Justice (UCMJ) was
    adopted in 1951. In that sense Hamdan may be broader than war
    crimes trials that may be the start of a new legal analysis of
    the long war.
        It is time for us to think about war crime trials and a
    process that provides due process and protects national
    security in the new war. So I think that really is the essence
    of what we need to produce in this effort that Congress is
    going to undertake, and that is a balancing of these two goals,
    national security and due process, fair play for those who are
    detained.
        Whatever we decide, we will uphold basic human rights and
    state what our compliance with this standard means for the
    treatment of detainees. I am sure we can do this in a way that
    is fair and the world will acknowledge is fair. Each witness
    here today is uniquely qualified to address these questions.
        And so, gentlemen, thank you for being with us, and before
    we go to your statements, I would like to turn to my good
    friend from Missouri, Mr. Skelton, whose father was involved in
    the litigation of one of the key cases that was cited by the
    Hamdan court ex parte. I look forward to his comments and the
    comments from all my colleagues, and I would also like to
    mention that Ms. Sanchez has proposed a provision for a
    commission that she offered--has offered in our last markup,
    and she has worked this issue, and she should be commended for
    that, and we will be looking at her proposal as well as
    proposals and recommendations and suggestions of all Members.
        So at this time I would like to turn to the gentleman from
    Missouri, Mr. Skelton.

    STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI,
              RANKING MEMBER, COMMITTEE ON ARMED SERVICES

        Mr. Skelton. Mr. Chairman, thank you very much. I join in
    welcoming the witnesses.
        Mr. Chairman, I am going to be brief and ask that my longer
    statement be entered into the record in the interest of going
    straight to the testimony and to the questions.
        We in Congress have a responsibility to those who serve in
    uniform in the same way we are committed to ensuring that our
    forces have the best equipment when they go into battle. We
    will do everything, I will repeat, we will do everything to
    make sure the enemy is taken off the battlefield and not given
    another opportunity to kill American soldiers and marines.
        We take this as our charge, but we must do so in a way that
    conforms strictly to the rule of law with our core values as
    Americans. That is what our troops fight for.
        Mr. Chairman, I am glad you mentioned Ms. Sanchez's
    proposed legislation. She has been working on this for a good
    number of actually years, if I understand correctly, and has
    anticipated the outcome of this case.
        The Supreme Court spoke loudly and it spoke clearly when it
    ruled in the Hamdan case, and we can and we must craft a system
    for aggressively dealing with accused terrorists and war
    criminals that holds them to account, but we must do so in a
    way that meets the standards that are laid out by the Supreme
    Court decision.
        The Court has given Congress a clear charge to craft a
    system that provides basic due process. We can and we must get
    this right. The worst thing we can do, Mr. Chairman, is for
    another Supreme Court decision to kick back what we do.
        So to do so, I believe we must look carefully at tried and
    true existing systems of law like the Uniform Code of Military
    Justice that may provide a basis for a solution. We must
    consider the modifications that need to be made to make
    commissions most effective as a tool in the war on terror.
        Mr. Chairman, this is not the first time that we have had
    tribunals or commissions regarding an enemy. In 1942 and 1946
    again, we had commissions that were upheld at that time. But
    under this recent Supreme Court decision, it is possible to
    legislate a system that will keep terrorists off the
    battlefield and meet the Court standards.
        This hearing is a good first step, and I compliment you,
    but we will need more hearings like them and will need to work
    together in a bipartisan, open process to figure out the best
    solution. This will take time and will take consideration. It
    is well worth it for our troops and for the outcome of the war
    on terror, and I look forward, Mr. Chairman, to undertaking
    this effort and hearing from our witnesses.
        [The prepared statement of Mr. Skelton can be found in the
    Appendix on page 53.]
        The Chairman. I thank the gentleman, and again, gentlemen,
    good morning. Mr. Bradbury, thank you, sir, for being with us.
    The floor is yours.

      STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
        GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

        Mr. Bradbury. Thank you, Mr. Chairman, Ranking Member
    Skelton and members of the committee.
        The Supreme Court in Hamdan v. Rumsfeld held that the
    military commissions that the President had established were
    inconsistent with the Uniform Code of Military Justice and the
    Geneva Conventions. It is important to realize, as the Chairman
    emphasized, that the Court did not question the authority of
    the United States to detain enemy combatants in the war on
    terror, and its decision does not require us to close
    Guantanamo Bay (GTMO) or release any terrorists. The Court
    implicitly recognized that the vicious attacks of al Qaeda
    triggered our right to use military force in self-defense, and
    that we are involved in an armed conflict with al Qaeda.
        The Court furthermore made clear that its decision rested
    only on an interpretation of current statutes and treaty-based
    law. The Court did not address the President's constitutional
    authority and did not reach any constitutional question.
    Therefore, Hamdan now gives the Congress and the Administration
    a clear opportunity to work together to address the matters
    raised by the case, including the appropriate procedures to
    govern military commissions.
        In moving forward after Hamdan, the basic question we must
    answer is how best to pursue the prosecution of al Qaeda and
    other terrorist combatants in this armed conflict. In trying al
    Qaeda terrorists for their war crimes, it is not appropriate as
    a matter of national policy, not practical as a matter of
    military reality, not required by the Constitution, and not
    feasible in protecting sensitive intelligence sources and
    methods to require that military commissions follow all of the
    procedures of a court-martial.
        In my written testimony I have identified several
    provisions of the Uniform Code of Military Justice and court-
    martial procedures that are impractical to apply in the
    military commission context.
        Mr. Chairman, all the issues with military commissions
    identified by the Supreme Court can be addressed and resolved
    through legislation. The Administration stands ready to work
    with Congress to do just that so that trials of captured al
    Qaeda terrorists can move forward again.
        In its decision, the Court also addressed the application
    of the Geneva Conventions to al Qaeda fighters in our war on
    terror. On this point it is important to emphasize that the
    Court did not decide that the Geneva Conventions as a whole
    apply to our conflict with al Qaeda or that members of al Qaeda
    are entitled to the privileges of prisoner of war status. The
    Court held rather that the basic standards contained in Common
    Article 3 of the Geneva Conventions apply to the conflict with
    al Qaeda.
        Of course, the terrorists who fight for al Qaeda have
    nothing but contempt for the laws of war. They have killed
    thousands of innocent civilians in the United States and
    thousands more in numerous countries around the world. They
    openly mock the rule of law, the Geneva Conventions, and the
    standards of civilized people everywhere, and they will attack
    us again if given the chance.
        When the Geneva Conventions were concluded in 1949, the
    drafters of the conventions certainly did not anticipate armed
    conflicts with international terrorist organizations such as al
    Qaeda. Be that as it may, we are now faced with the task of
    implementing the Court's decision on Common Article 3.
        Last year, Congress engaged in a significant public debate
    on the standards that should govern the treatment of captured
    al Qaeda terrorists. Congress codified that standard in the
    McCain amendment, part of the Detainee Treatment Act, which
    prohibits cruel, inhuman or degrading treatment or punishment,
    but, importantly, it defined that standard by reference to the
    established meaning of our Constitution for all detainees held
    by the United States.
        We all believe that enactment of the Detainee Treatment Act
    settled questions about the baseline standard that would govern
    the treatment of detainees by the United States in the war on
    terror. That assumption is no longer true.
        In its ruling in Hamdan, the Supreme Court has now imposed
    another baseline standard, Common Article 3 of the Geneva
    Conventions. On the one hand, when reasonably read and properly
    applied, Common Article 3 will prohibit the most serious and
    grave offenses. Most of the provisions of Common Article 3
    prohibit actions that are universally condemned such as
    violence to life, murder, mutilation, torture and the taking of
    hostages.
        These are a catalog of the most fundamental violations of
    international humanitarian law. In fact, they neatly sum up the
    standard tactics and methods of warfare utilized by our enemy.
        On the other hand, although Common Article 3 should be
    understood to apply only to serious misconduct, it is
    undeniable that some of the terms in Common Article 3 are
    inherently vague. Common Article 3 prohibits, quote, ``outrages
    upon personal dignity,in particular, humiliating and degrading
    treatment,'' a phrase that is susceptible of uncertain and
    unpredictable application. In Common Article 3 it is not
    defined by reference to our own Constitution as it is in the
    McCain amendment.
        Furthermore, the Supreme Court has said that in
    interpreting a treaty provision, the meaning given to the
    treaty language by international tribunals must be accorded,
    quote, ``respectful consideration,'' and the interpretations
    adopted by other State parties to the treaty are due
    considerable weight. Accordingly, the meaning of Common Article
    3, the baseline standard that now applies to the conduct of
    U.S. personnel in the war on terror, would be informed by the
    evolving interpretations of tribunals and governments outside
    the United States. Many of these interpretations to date have
    been consistent with the reading that we would give to Common
    Article 3. Nevertheless, the application of Common Article 3
    will create a degree of uncertainty for those who fight to
    defend us from terrorist attack.
        The meaning of Common Article 3, of course, is not merely
    academic, because the War Crimes Act makes any violation of
    Common Article 3 a felony offense.
        We believe that the standards governing the treatment of
    detainees by the United States in the war on terror should be
    certain, and that those standards should be defined by U.S. law
    consistent with our Constitution and our international
    obligations. We look forward to working with Congress to
    protect the American people and to ensure that unlawful
    terrorist combatants can be brought to justice consistent with
    the Supreme Court's guidance.
        I look forward to discussing those issues with the
    committee this morning, and thank you, Mr. Chairman.
        The Chairman. Mr. Bradbury, thank you.
        [The prepared statement of Mr. Bradbury can be found in the
    Appendix on page 60.]
        The Chairman. Mr. Dell'Orto, thank you for being with us
    today, sir.
        Mr. Dell'Orto. Thank you, Mr. Chairman.
        The Chairman. Pull that up closer, make sure it is on.

      STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL
                     COUNSEL, DEPARTMENT OF DEFENSE

        Mr. Dell'Orto. Thank you, Mr. Chairman, Ranking Member
    Skelton and members of the committee. On behalf of the
    Department of Defense, please allow me to express my gratitude
    for the opportunity to appear before you today and for the
    prompt and careful consideration by the committee of necessary
    measures in response to the Supreme Court's decision in Hamdan
    v. Rumsfeld.
        I join wholeheartedly Mr. Bradbury's statement and add just
    a few words of my own. The United States military has convened
    criminal tribunals other than courts-martial since the days of
    the very first Commander-in-Chief George Washington. From the
    Revolutionary, Mexican-American, and Civil Wars, on through
    World War II and the present, our Nation and its military have
    considered these tribunals an indispensable tool for the
    dispensation of justice in the chaotic and irregular
    circumstances of armed conflict.
        The military commission system reviewed by the Court in
    Hamdan fits squarely within this long tradition. Tradition,
    however, is not the only justification for employing criminal
    adjudication processes other than courts-martial in times of
    armed conflicts. Alternative processes are necessary to avoid
    the absurd results of adopting protections for terrorists that
    American citizens do not receive in civilian courts.
        The court-martial system generally is not well known or
    understood outside the military. One common misperception is
    that courts-martial must necessarily render a lesser form of
    justice because they fall outside the judicial branch, but the
    opposite is actually true. To protect in court those who
    protect us in battle and to avoid even the appearance of
    unlawful command influence, courts-martial are more solicitous
    of the rights of the accused than are civilian courts.
        For every court-martial rule that is arguably less
    protective of the accused than its civilian analog, there are
    several that are indispensably more protective. For example,
    legal counsel is provided without cost not just for the
    indigent, but for all. The rights to counsel and against self-
    incrimination are afforded earlier in the military justice
    system than in civilian practice. Instead of indictment by
    grand jury, which convenes in secret without the defendant and
    defense counsel, the military justice system requires that for
    a general court-martial a thorough and impartial investigation
    be open to the public and the media, at which the accused and
    defense counsel may conduct pretrial discovery and call and
    cross-examine witnesses.
        The court-martial process allows open and full discovery of
    the government's information by the accused, a process more
    open and automatic than discovery in civilian criminal
    prosecutions. The speedy trial rules are much more strict in
    the military justice system than in the civilian system. The
    statute of limitations that applies to most military offenses
    is shorter than the Federal statute for terrorism offenses, and
    the rules for exclusion of evidence are more generous toward
    the accused than their civilian counterparts.
        While tradition and common sense, therefore, provide strong
    support for alternative adjudication processes for terrorists
    and other unlawful enemy combatants, military necessity is
    perhaps the strongest reason of all. It is simply not feasible
    in time of war to gather evidence in a manner that meets strict
    criminal procedural requirements.
        Service personnel are generally not trained to execute
    military combat and intelligence missions while simultaneously
    adhering to law enforcement standards and constraints.
        Asking our fighting men and women to take on additional
    duties traditionally performed by police officers, detectives,
    evidence custodians, and prosecutors will not only distract
    from their mission, but endanger their lives as well.
    Intelligence gathering would also suffer terribly. It would
    greatly impede intelligence collection essential to the war
    effort to tell detainees before interrogation that they are
    entitled to legal counsel, that they need not answer questions,
    and that their answers may be used against them in a criminal
    trial.
        Similarly, full application of court-martial rules would
    force the government either to drop prosecutions or to disclose
    intelligence information to our enemies in such a way as to
    compromise ongoing or future military operations, the identity
    of intelligence sources, and the lives of many. Military
    necessity demands a better way.
        As Mr. Bradbury stated, the Hamdan decision provides
    Congress and the President an opportunity to address these
    critical matters together, and we look forward to working with
    you.
        Thank you, Mr. Chairman.
        The Chairman. Thank you, Mr. Dell'Orto.
        [The prepared statement of Mr. Dell'Orto can be found in
    the Appendix on page 71.]
        The Chairman. Mr. Olson, thank you very much for being with
    us today, and the floor is yours, sir.

    STATEMENT OF THEODORE B. OLSON, FORMER SOLICITOR GENERAL OF THE
                             UNITED STATES

        Mr. Olson. Thank you, Chairman Hunter, Ranking Member
    Skelton, and members of this committee. I appreciate the
    opportunity to appear before the committee to testify about a
    Supreme Court decision that has far-reaching implications for
    the President's ability to defend our national security and to
    perform his duties as Commander-in-Chief. No issue, I believe,
    deserves more thoughtful consideration from our elected
    representatives than ensuring that the American people are
    defended from a savage terrorist enemy that deliberately
    targets civilian lives and mutilates our soldiers in an effort
    to destroy our way of life.
        It is altogether necessary and appropriate for Congress to
    consider a legislative response to the Hamdan decision. Indeed,
    all eight Justices who participated in the case recognized that
    congressional action could cure any perceived inadequacies in
    the military commissions established by the President.
        In my written submissions to you, I address the questions
    of military commissions and the applicability of the Geneva
    Conventions and how that issue might be dealt with. I would
    like to today just focus on another aspect of the Hamdan
    decision that I don't believe will be covered by the other
    witnesses.
        In response to the Justices' invitation to implement a
    legislative solution, it is my view that Congress should
    restore the status quo that existed prior to the Supreme
    Court's decision in Hamdan and Rasul v. Bush two years ago that
    for the first time in the history of the United States, and
    contrary to long-established precedence, held that Federal
    courts in the United States had jurisdiction over the capture,
    detention and treatment of noncitizen aliens captured on the
    battlefield and held beyond the sovereign territory of the
    United States.
        The Supreme Court in that Rasul decision overturned Johnson
    v. Eisentrager, a Supreme Court precedent written by Robert
    Jackson that had stood for over 50 years, and held for the
    first time that the habeas corpus statute gave the Federal
    courts jurisdiction to supervise the custody of alien
    combatants held abroad by our military forces.
        In the Hamdan decision, the Court held that the Detainee
    Treatment Act enacted by this Congress in response to the Rasul
    case, reasserting by Congress that the courts had no
    jurisdiction to hear habeas corpus petitions from enemy alien
    combatants held abroad, the Supreme Court in Hamdan reversed
    that decision and said that it did not apply, your legislation
    did not apply, to pending cases.
        Since the emergence of the writ of habeas corpus several
    centuries ago in English common law courts, the writ has never
    been available to enemy aliens held outside a country's
    sovereignty. By requiring the President to justify his military
    decisions in Federal courts, Rasul imposes a substantial and
    unprecedented burden on the President's ability to react with
    vigor and dispatch to homeland security threats.
        The congressional response to Rasul, as I mentioned before,
    was the Detainee Treatment Act that explicitly provided that no
    court shall have jurisdiction to hear or consider an
    application for a writ of habeas corpus filed by or on behalf
    of an alien detained by the Department of Defense at Guantanamo
    Bay. No court, no jurisdiction.
        Notwithstanding that clearly stated legislative language,
    the Hamdan Court held that the Detainee Treatment Act does not
    apply to those petitions that were pending at the time of the
    decision. That holding requires the Federal courts to
    adjudicate hundreds of other habeas corpus petitions filed by
    Guantanamo Bay detainees pending at the time that legislation
    was enacted.
        Until the Supreme Court's Rasul decision, no court had ever
    suggested that aliens captured during hostilities and held
    outside the United States could challenge their captivity
    through a petition for writ of habeas corpus filed in a U.S.
    court. Indeed, none of the two million prisoners of war held by
    the United States at the conclusion of World War II was deemed
    authorized to file a habeas petition in a U.S. court
    challenging the terms or conditions of their confinement.
        One can only imagine the chaos that would have been
    introduced into the effort to win World War II if each of these
    detainees or lawyers on their behalf had been permitted to file
    petitions in the United States courts immediately upon their
    capture in Europe, Africa, or in the islands of the Pacific.
    Yet that is precisely the circumstance that Rasul and Hamdan
    have created and that the President and the armed forces must
    face today in their fight against terrorism.
        The Rasul and Hamdan decisions impose a tremendous burden
    on our military personnel in the field. To begin with, as the
    Supreme Court explained in the Eisentrager decision 50 years
    ago, authorizing courts at the behest of enemy aliens to
    second-guess the decisions of military commanders will diminish
    the prestige of our commanders not only with the enemies, but
    with wavering neutrals.
        The Court goes on: It would be difficult to devise more
    effective fettering of a field commander than to allow the very
    enemies he is ordered to reduce to submission to call him to
    account in his own civilian courts and divert his efforts and
    attention from the military offensive abroad to the legal
    defensive at home.
        Mr. Dell'Orto mentioned some of the complications, but they
    include: Will commanders be summoned from the field to give
    evidence and to explain the circumstances of the capture of
    combatants? Will detainees have access to counsel? Do they have
    the right to appointed counsel, Miranda warnings, the right to
    speedy trials? Will the Government be required to disclose
    sensitive intelligence information to demonstrate that its
    detention of enemy combatants is justified?
        Those are just a few examples. I submit that Congress
    should act to restore the status of the habeas corpus
    jurisdiction that has existed throughout this Nation's history
    until two years ago. The Constitution places the decision to
    detain a noncitizen enemy combatant on the battlefield squarely
    within the domain of the President as Commander-in-Chief of the
    Armed Forces. Congress should restore the constitutional
    balance by amending the Detainee Treatment Act to clarify, as
    the Congress, I think, thought it did then, that Federal courts
    lack jurisdiction over habeas corpus petitions filed by
    detainees held outside the sovereign territory of the United
    States, no matter when those petitions were filed.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Olson can be found in the
    Appendix on page 74.]
        The Chairman. Mr. Olson, thank you very much.
        Rear Admiral Hutson, thank for being with us this morning.

     STATEMENT OF REAR ADM. JOHN D. HUTSON, (RET.), PRESIDENT AND
        DEAN, FRANKLIN PIERCE LAW CENTER, FORMER JUDGE ADVOCATE
                           GENERAL, U.S. NAVY

        Admiral Hutson. Thank you, Mr. Chairman. Mr. Skelton, thank
    you. Thank you for holding what I think are incredibly
    important hearings on the issue of the day right now in
    prosecution of the war.
        I want to start out by saying unequivocally that I want to
    be able to successfully prosecute terrorists; however, I
    believe that successful prosecution entails a full and fair
    hearing which complies with the dictates of Common Article 3 to
    the extent that it is a regularly constituted court that
    comports with the judicial guarantees recognized as
    indispensable by all civilized peoples. I don't believe that
    there is any part of that, a regularly constituted court or
    judicial guarantees recognized as indispensable by civilized
    peoples, that the United States should or could try to avoid or
    evade in any way.
        We shouldn't make this too hard or too complicated or try
    to get too cute with it. We know what those guarantees are. We
    should enthusiastically embrace them, we should celebrate them,
    we should shout them from the rooftops. We can do that from a
    position of strength, not from a position of weakness. It is
    those guarantees that make us strong.
        We are the strongest Nation militarily on the face of the
    Earth, there is no doubt about that. Our strength as a Nation
    comes not from our military strength or from our economy or
    from our natural resources or the essential island nature of
    our geography; our strength comes from what we have stood for
    for generations. That is what gives us strength, and we should
    be proud of that and celebrate it.
        I was an early supporter of the concept of military
    commissions, and I still am. I think it is the way to go. I was
    not a supporter of the way in which they were implemented in
    the second order. We should use commissions as a means whereby
    we demonstrate to the world what it is we are fighting so
    valiantly to preserve.
        I was talking with a lawyer yesterday from Human Rights
    First about the Hamdan decision and my testimony in this
    hearing, and she made a comment to me that I thought was very
    profound and compelling, which was that Hamdan was not--the
    Hamdan decision was not a revolution, it was a return. It was
    returning us to where we should be. It shouldn't have been a
    shock, it should have been ho-hum. It was return to business as
    usual.
        The United States stands for the rule of law, and we have
    for years. It is not a rule of law if you only apply it when it
    is convenient. It is something else. For too long this has been
    a discussion between the executive branch and the courts, and
    it is time, as you know by conducting these hearings, to return
    the conversation to the proper forum, which is to say Congress.
        If Hamdan stands for anything, it stands for the
    proposition that Congress has to engage thoughtfully and
    deliberately in these issues. There are those who advocate the
    Congress simply reaffirm what the President did prior to Hamdan
    with military commissions. I think that would be a dramatic
    mistake. There are those that would say we should start out and
    pull out a clean sheet of paper and start writing. I think that
    is not the easy way to do this.
        This can be easy, and I mean E-A-S-Y. It can be easy. On
    every bookshelf of every U.S. military lawyer stationed
    anyplace in the world sits a burgundy soft-covered book. That
    book is the envy of every armed force on the face of the Earth.
    It contains the Uniform Code of Military Justice and the Manual
    for Courts-Martial. We should use that as the model.
        I am glad that the prior witnesses have talked about the
    strength and the beauty of the Uniform Code of Military Justice
    and the Manual for Courts-Martial. Those documents can be
    modified in such a way as to avoid the list of horribles that
    have been listed. Article 32 can be modified or eliminated.
        I agree the media talks about it generally as the military
    equivalent of the grand jury investigation, and that is not
    even close. Article 32 is so much more than the grand jury
    investigation. The modifications--and I don't want to use the
    word relax, relaxing the UCMJ or the rules of evidence--the
    modifications to the UCMJ and the military rules of evidence
    and procedure have to be very narrow, they have to be very
    specifically tailored, they have to be justified, and if those
    things are done, I don't think any court is going to have any
    problem with using the UCMJ and the Manual for Courts-Martial.
        We decided, this Nation decided, early on that this was
    going--we were going to deal with terrorism as a war rather
    than as a criminal activity, and I think that was a good
    decision, but that in itself is a new paradigm, and what we
    have done is say in this war we are now going to start
    prosecuting people. We didn't prosecute Hitler's driver or
    bodyguard and probably wouldn't have if we had captured him.
    This is different. We are taking people who are coming in off
    the battlefield, and rather than just holding them, which we
    could do, we want to prosecute them. That is fine, but if we
    are going to do that, we have to do it in accordance with
    certain rules that are generally accepted as indispensable by
    civilized people.
        I am proud to be a lawyer. I think our system of justice
    defines how good this country is. I think that we have the
    opportunity now to demonstrate to the rest of the world what
    that system looks like, and, with some minor modifications to
    the UCMJ, we can do that.
        We shouldn't reverse-engineer the commissions, assuming
    that everybody is guilty, and then create a commission that is
    geared to proving that point. We have to start at the
    beginning. And I would suggest that we do that with the Uniform
    Code of Military Justice.
        Thank you, sir. I look forward to your questions.
        The Chairman. Thank you very much, Admiral Hutson.
        [The prepared statement of Admiral Hutson can be found in
    the Appendix on page 96.]
        The Chairman. Gentlemen, let me ask you to do something
    that is a little unlawyerlike, but I think to kind of tee the
    ball up here for the committee. Give me a one-liner, what did
    you think Hamdan told Congress? Think about that a little bit.
    If you can give that to us in one line, what do you think?
        Mr. Bradbury.
        Mr. Bradbury. I guess the one line, Mr. Chairman, I would
    say is that it is up to Congress now to design the procedures
    for military commissions and make the decisions as to what
    makes sense in a trial, in an al Qaeda terrorist versus a trial
    of a U.S. servicemember. Those are two different things. It is
    up to Congress to decide, and we are here to work with you to
    make that happen.
        The Chairman. Mr. Dell'Orto.
        Mr. Dell'Orto. Mr. Chairman, if I were to try to condense
    this into a very short answer as you have asked me to, I would
    say that, in slightly modifying what Mr. Bradbury said, the
    Supreme Court apparently found no underlying flaw in the
    commission process as established. It simply said the President
    did not consult with the Congress.
        We have been many, many years in the process of trying to
    try the detainees who we believe have committed war crimes. All
    Congress needs to do, assuming it has taken the opportunity to
    review the commission process as it is currently configured, is
    to ratify that process, and we can move on very, very quickly.
    And that is what I think the Supreme Court has signaled to this
    Congress.
        The Chairman. So it was a requirement for the participation
    of Congress with the executive that was the essence of the
    opinion.
        Mr. Dell'Orto. I think that is the essence of it, Mr.
    Chairman.
        The Chairman. Mr. Olson.
        Mr. Olson. I believe the Supreme Court said that Congress
    needs to approve the method of formation and the procedures to
    be used with military commissions, but that judges will retain
    jurisdiction to second-guess the execution of those decisions
    in every case; and that when this Congress said no court shall
    have jurisdiction to hear or consider habeas corpus
    applications filed by the detainees in Guantanamo, Congress
    didn't mean what it said; and that as long as that judicial
    jurisdiction to second-guess military decisions exists, we will
    have the judiciary participating in the conduct of military
    operations wherever they occur. And that gave this Congress an
    opportunity to say again what it tried to say in the Detainee
    Treatment Act.
        The Chairman. Thank you.
        Rear Admiral Hutson.
        Admiral Hutson. I think that they were saying to constitute
    a court that is consistent with universally accepted judicial
    guarantees.
        The Chairman. Okay. Just to take that last description by
    Rear Admiral Hutson, if you look at Geneva Article 3, Common
    Article 3, and it talks about regularly constituted court, that
    is presumably the product that would be--if we put together a
    body of law to govern these procedures, that would satisfy
    those particular words in Article 3; is that what you are
    talking about, Admiral Hutson?
        Admiral Hutson. Yes, sir. I think if this body creates the
    court, it is regularly constituted.
        The Chairman. Then you have spoken, Rear Admiral Hutson,
    about standards that are manifest in the Uniform Code of
    Military Justice, basically standards of fairness for
    defendants' rights. Do you agree that the exigencies of the
    battlefield would reasonably reduce the scope of those rights,
    or do you think that the full rights of the UCMJ should be
    afforded or that the base of the UCMJ should be used? I am
    trying to understand precisely your position.
        Admiral Hutson. Absolutely. The exigencies of the
    battlefield and war on terror would necessitate--Article 3
    didn't come down from Mount Sinai on a stone tablet, but there
    are guarantees that are embedded in the Uniform Code of
    Military Justice that comport with those judicial guarantees
    generally accepted, and I think those are the presumption of
    innocence, independent judiciary, all of those kind of things;
    facing your accuser, knowing the evidence consistent with
    military rule of evidence 505 which talks about how to deal
    with classified evidence in a very complete way, so that, yes,
    sir, I believe there are modifications that have to be made.
        The Chairman. What I am reminded of is we went through the
    Guantanamo exercise when those--all the issues surrounding
    Guantanamo were elevated to a status where it was reviewed
    strongly by the committee, and what struck me fairly profound
    was a fairly high number of folks out of the 310 or so that
    were released were proven to have returned to the battlefields
    and taken up arms against our troops.
        And that one thing that you said a minute ago caught my
    attention was--and tell me if I am wrong, but you said to the
    effect that there is nothing wrong with warehousing some of
    these people over a period of time to keep them from returning
    to the battlefield. And you understand the enormous pressure
    that was put on the Administration to prosecute or release. Did
    I understand your statement correctly?
        Admiral Hutson. Well, I would modify your description of it
    slightly. I believe that the United States can capture
    terrorists and warehouse them. I think it is going to create--
    we are going to run into a diplomatic wall and a political wall
    and a pubic relations wall before we run into a legal wall. The
    war on terror is certainly different in the sense that it is
    going to go on for probably a much longer period of time, and
    that is going to cause people some problems.
        All I am saying is that we can't presume that they are
    guilty and create a system to demonstrate that fact.
        The Chairman. Okay. I am reminded, I think one of the early
    cases that we learned in law school, I think it was Davis v.
    Mississippi, where a person murdered an elderly lady and left
    his fingerprints on the window sill, and the fingerprints later
    were matched up with a person who had been taken out of an
    unconstitutional lineup. And so that was one of the cases where
    it was fairly clear that the exclusionary rule was intended to
    apply even though guilty people would go free. But that was a
    pain that our society was willing to suffer and a loss that we
    were willing to suffer to let the murderer walk out the door to
    ensure and discipline our system so that the appropriate
    procedures were followed.
        In this case the pain that we might see is an enemy
    combatant returning--if he can't confront his accusers because
    the sergeant who said, that guy was manning the rocket-
    propelled grenade, that sergeant may be dead or unavailable to
    be--to confront the accuser, so--or to confront the accused, so
    the accused goes free. The pain would be manifested and
    reflected in perhaps dead Americans on the battlefield.
        And so the question becomes on your scale of balancing this
    need for basic rights for the accused with our basic need to be
    secure and to protect our soldiers, where do you think we
    should move that forward? What are your thoughts? Hearsay
    evidence, right to confront accuser, that type of thing. I
    would like to ask all the members of the panel that. In fact,
    go ahead, Admiral Hutson, and move right down the panel.
        Admiral Hutson. I would say, sir, that the evidence would
    have to have some apparent authenticity and validity in order
    to be introduced. You can't just let in everything. There has
    to be some sort of standard, and apparent authenticity and
    validity may be a reasonable standard to use.
        If you have fingerprint evidence in your example in Davis,
    if you have fingerprint evidence, but the chain of custody
    isn't perfected, I wouldn't have any problem introducing that
    in a military commission. I would have a problem introducing it
    in a court-martial of a U.S. troop, but acknowledging your
    acknowledgment of the difference of the battlefield, that would
    probably be acceptable to me.
        But I do think, Mr. Chairman, that there is a balance, and
    there may have to be to some extent a sacrifice, maybe not as
    dramatic as the case you point out in Davis, but there may have
    to be a sacrifice if we are going to do this in a way that we
    are proud.
        The Chairman. Mr. Olson.
        Mr. Olson. I yield to Rear Admiral Hutson and Mr. Dell'Orto
    and Mr. Bradbury with respect to the specifics of how those
    judgments might be made. The point that I think is important is
    that when you are fighting an enemy like this--one that defies
    all civilized rules, that intends to be as savage as possible
    to the most vulnerable people in the world, that has no
    scruples or principles, and that will go back every time to the
    battlefield, maybe not to the battlefield, but to a synagogue
    or a school bus--we have to have some flexibility built into
    the system so that the President as Commander-in-Chief and
    military officials down the line have some flexibility.
        You talked about the exigencies of the circumstances. I
    think there has to be flexibility and freedom to exercise
    discretion by the executive. We accord a presumption of some
    discretion, some deference to the Federal Communications
    Commission (FCC), to the Environmental Protection Agency (EPA),
    to the Army Corps of Engineers in court decisions, but there
    was no deference to the President's judgments about the
    practicalities of military commissions by the Supreme Court in
    the Hamdan decision, so that when you legislate in this area,
    if you do, I would urge Congress to make sure that there is
    room for discretion, depending upon the circumstances of the
    particular case, and that exercise of that discretion will be
    accorded some deference by any agency or court reviewing it to
    understand the circumstances, because the price that military
    officials will pay if their judgments are second-guessed and
    not accorded some deference later on in court may be very, very
    high. Someone may be prosecuted for a war crime for exercising
    perfectly reasonable judgment with respect to the putting on of
    a case with respect to an enemy combatant or capturing one.
        The Chairman. Thank you.
        Mr. Dell'Orto, any comments?
        Mr. Dell'Orto. Mr. Chairman, I had the privilege of serving
    on active duty for almost 28 years, the first 8 years as a
    field artillery officer and the balance of my career as a judge
    advocate officer, and spent time mostly in the criminal law
    arena. Our system as it currently exists, the court-martial
    system, is a fantastic system, and it has come to unfold,
    develop, evolve over the years at the urging of Congress
    because it has taken very good care to ensure that that system
    has been developed in a way that will provide the greatest
    amount of protections to our soldiers.
        But I don't want a soldier, when he kicks down a door in a
    hut in Afghanistan searching for Osama bin Laden, to have to
    worry about whether when he does so and questions the
    individuals he finds inside, who may or may not be bin Laden's
    bodyguards or even that individual himself, to worry about
    whether he has got to advise him of some rights before he takes
    a statement. I don't want him to have to worry about filling
    out some form that is going to support the chain of custody
    when he picks up a laptop computer that has the contact
    information for all manner of cells around the world while he
    is still looking over his shoulder to see whether there is not
    an enemy coming in after him.
        I want us to be able to do what the President said we
    should, guarantee a full and fair trial to these terrorists
    that would include such things as the presumption of innocence
    at the outset of the trial, that would include a standard of
    proof that puts the burden on the prosecution that requires
    that he be found guilty by proof beyond a reasonable doubt,
    that provides him with counsel, that does so many things that
    our system of justice in the United States calls for. And I
    would say that the military commission procedures that have
    been established to date do all of those things in a way that
    takes into account what practicalities, practical difficulties,
    are associated with trying to gather this evidence around the
    world in various and sundry places that will place great
    limitations on our ability to adhere to the standard, the
    standard rules that we employ in our courts-martial process and
    in our civilian court process.
        I think we have already done that, and, again, that is why
    I urge that particular process as the starting point to get to
    the Congress's approval of the procedures that can be used to
    satisfy what the Supreme Court has told us and the Congress
    need to be done.
        The Chairman. Thank you.
        Mr. Bradbury, where is that balance?
        Mr. Bradbury. Mr. Chairman, I think the fundamental point,
    I think, is simply that the procedures have to be flexible
    consistent with fundamental fairness. I think there is a lot of
    flexibility in light of the circumstances of the apprehension
    of these folks, the kinds of evidence that is necessary to
    convict them, and the military necessity. And so, for example,
    running down some of the things that are provided in the UCMJ
    that I think need to be adjusted or eliminated in the context
    of a military commission proceeding, the Article 32
    investigation that precedes a prosecution needs to be off the
    table and needs to be done through a different means.
        The right to counsel that is given, under the UCMJ it is
    given when the individual is first suspected of having
    committed a crime, and he gets counsel right away and gets
    Miranda rights right away, that is inconsistent with simply
    needing to question individuals to get intelligence from them.
        Hearsay rules. International tribunals such as the
    international criminal tribunals for Yugoslavia and Rwanda
    allow the use of hearsay evidence. It is recognized that it is
    simply as a practical matter necessary when you talk about
    crimes that have occurred in far-flung places of the world. You
    are not going to be able to get every witness in life for
    testimony. You are going to have to allow the use of hearsay
    evidence where the fact-finder determines it is probative, it
    is sufficiently reliable, and it is not outweighed by undue
    prejudice. So you need that flexibility in hearsay rules.
        Classified evidence. We absolutely have to carefully
    control exposure of the terrorist detainee to classified
    sources and methods. There are ways to do that that the
    commission can police to ensure fundamental fairness, using
    summaries, using substitutes. We also in the current military
    commission process would allow the detainee to have counsel
    cleared in to get access to classified information that is
    actually going to be used as evidence. But we think you can do
    that in a way that is consistent with fundamental fairness, and
    that should be something that a court on review, for example,
    through the Detainee Treatment Act, the standards of review,
    would be able to review after the fact.
        So those are a few of the critical things that absolutely
    need to be flexible in order to make a military commission
    process that has historically worked work in this context.
        The Chairman. Thank you, gentlemen.
        The gentleman from Missouri, Mr. Skelton.
        Mr. Skelton. Mr. Chairman, thank you.
        I am going to be brief. But I think we should remind
    ourselves the purpose of all this is protection of our young
    people in uniform. At the end of the day, that is really what
    we need to keep in mind, to devise a system that will do that.
        The Chairman said something about a one-liner. Let me ask
    this, if this is not consistent. We in Congress must provide a
    regularly constituted court, which could be court-martial,
    UCMJ, Federal court, or a specially designed Federal court or a
    tribunal; second, a minimum of due process under the Geneva
    Convention Common Article 3; and third, Congress must authorize
    departure from the courts-martial or Federal rules and
    procedures in the event that military commissions are
    established.
        Did I leave anything out, gentlemen? Isn't that really what
    the Court said, those three items?
        Mr. Bradbury. I am not sure, Congressman, the Court spelled
    it out in exactly the way you have. I think that is consistent
    with what the Court held, and I think if Congress were to enact
    a statute that does what we have described here, it would
    satisfy all of those requirements.
        Mr. Skelton. That is my question.
        Thank you, Mr. Chairman.
        The Chairman. Thank the gentleman.
        The gentleman from Colorado, Mr. Hefley.
        Mr. Hefley. Thank you, Mr. Chairman. I think one of the
    struggles we have, and I think you referred to it, and I think
    many of us have struggled with this, is this question of
    whether it is a crime or whether it is war or whether it is a
    crime during times of war. And as one of you mentioned, in the
    Second World War, we didn't try the average soldier on the
    battlefield. We kept them, we put them in concentration camps,
    and we kept them until the war was over, but we didn't try
    them. And I guess I would ask, what should we be doing with
    these people regardless of their rank in the bin Laden
    hierarchy? What should we be doing with them? Should we be
    warehousing them, should we be keeping them in the
    concentration camp like in wartime, or should we be trying them
    like they were criminals? I don't have much--a good feeling
    about what we ought to do on that.
        Mr. Dell'Orto. Congressman Hefley, we certainly have the
    right under the law of armed conflict, having captured
    combatants on the battlefield, to detain them for the duration
    of hostilities. That is long settled, recognized not only under
    the law of war, but by our courts. We can detain them until the
    end of the conflict.
        During World War II, as someone has already mentioned, we
    detained hundreds of thousands of lawful enemy combatants in
    various camps around the country. I wouldn't call them
    concentration camps. We had them at many of our posts and
    installations around the country. We could have had some in
    Colorado for all I know.
        Mr. Hefley. We did.
        Mr. Dell'Orto. I can remember buying a Christmas tree from
    a former enemy POW at one of my military assignments in
    Baumholder, Germany, who can describe his experience at one of
    our camps at Fort Knox, Kentucky. He thought it was a great
    experience. He spent his time in captivity working in the mess
    hall probably peeling potatoes or at the officer's club. He
    thought--he was fine with that, and he was very much a friend
    of our forces over in Germany.
        We did during World War II try some number of unlawful
    combatants, or, I am sorry, people who had committed war
    crimes, Yamashita; the German hierarchy for the crimes that
    they committed that violated the laws of war. Now, if a lawful
    combatant, a soldier in the German Wehrmacht, during World War
    II shoots one of our soldiers during combat, he has the
    immunity that goes along with participating as a lawful
    combatant in a combat action. I mean, that is what happens in
    war. You shoot him, he shoots you or shoots at you, and he,
    because he is--assuming he is fighting lawfully, wearing a
    uniform, reporting to a chain of command, follows the laws of
    war, carrying his arms openly, he is a lawful combatant, a
    privileged belligerent who is not going to be tried for his
    lawful activities on the battlefield. But if he goes into a
    farmhouse and lines up a bunch of civilians and shoots them, he
    has committed a non--those are noncombatants. He has committed
    a war crime and is being subject to punishment for that. Or if
    he directs that sort of activity as Yamashita did and takes no
    regards for the consequences of what his soldiers do on the
    battlefield as they rape and pillage, he is subject to trial
    for an unlawful--for his unlawful acts.
        What we have here are people who don't wear uniforms. They
    don't carry arms openly. They don't distinguish themselves from
    the civilian population anyway. They don't follow the laws of
    war. They are without any discipline in the way they conduct
    their combat. They deliberately attack civilians. They behead
    people, they mutilate people. And so they are in theory at all
    levels unlawful combatants. We are--we have charged ten of
    those people and probably have another several dozen others who
    are likely to be candidates for military commissions because
    their activities rate--are at such a significant level that we
    believe they should be tried as war criminals under the
    military commission process, the process that we have had, or
    at least the tradition we have had, of conducting these sorts
    of tribunals throughout our history.
        So I don't know if that answers your question. It is a long
    answer, but I have tried to sort of put this in context.
        Mr. Hefley. No, it is very, very helpful. Since these are
    unlawful combatants, so many of them, maybe most of them, do
    the rules of the Geneva Conventions apply? Because those were
    drawn up to deal--weren't they primarily--with lawful
    combatants?
        Mr. Dell'Orto. And those who are not part of the fight, so
    we have the third Geneva Convention that deals with prisoners
    of war that, like the people I described who were at our camps
    around the United States during World War II, they would be
    covered today under Geneva 3, and they would receive all sorts
    of rights.
        Now, they could be punished for things that they did in the
    camp. If they beat up a guard, they beat up another detainee,
    they could be punished under our system for those acts, but
    they are not going to be punished for their lawful activities
    on the battlefield.
        Mr. Hefley. Thank you very much.
        The Chairman. The gentleman from Arkansas, Dr. Snyder.
        Dr. Snyder. Thank you, Mr. Chairman, and thank you for
    holding this important hearing. I wanted to--we only have five
    minutes, so I am going to ask quick questions, maybe get quick
    answers.
        Going along with what Mr. Hefley talked about, I will go to
    you, Admiral Hutson, is it an accurate description to say that
    what we are all dealing with today and the changes we are
    talking about, the proposals are to deal with the legal system
    to be set up for those going to trial; the Hamdan decision did
    not deal with those detainees who are not going to trial? Is
    that an accurate description, Admiral Hutson?
        Admiral Hutson. Yes, sir. One of the reasons we are wrapped
    around the axle about this is because we are trying to
    prosecute people. That is the issue.
        Dr. Snyder. And what we all as the Congress and what
    Chairman Hunter is holding these hearings about is what changes
    are we going to make for those that we are taking to trial? We
    are not talking about changing processes now for those that are
    not going to trial. Is that an accurate description?
        Admiral Hutson. I believe that is what the committee is
    about. Yes, sir.
        Dr. Snyder. Mr. Olson, it is great to have you here. I
    don't recall you being before our committee before, but I tell
    you I want to disagree with you when you call for a restoration
    of the status quo. I feel like--you know our good friend Gene
    Taylor here who lost his home in Hurricane Katrina, and I think
    when you have something struck down, you don't want to build it
    back just the same as it was status quo, you want to do it
    better. And I think we have an opportunity to do better in
    terms of worldwide opinion.
        I also want to comment or just make the comment I think two
    or three of you in both your written statements and your
    statements here today talk about the problem on the chain of
    evidence in a door-to-door search or a Miranda warning. I mean,
    who the hell is saying that? Nobody is saying that. I mean, I
    have talked to my Republican colleagues. I am not aware of
    anyone who is saying, gee, we are going to have to have the
    Miranda warnings in the chaos of war, or we are going to have a
    real chain of evidence problem when people are passing this
    stuff along, being shot at, here you have to sign here,
    Sergeant. Nobody is saying that. Let's just declare that as a
    red herring.
        There is not going to be nothing coming from any Member of
    Congress that says we are going to have Miranda warnings on the
    battlefield or chains of evidence as we normally think of them
    when we all watch Miami CSI. Those are red herrings. They are
    not going--it is not going to be on the table.
        I want to ask, last night I ran into Representative
    Butterfield, who we all call Judge Butterfield because of his
    legal background. I said, Judge, this stuff is complicated. And
    he said, no, it is not. It is pretty easy. And then, Mr.
    Hutson, you came here today and you said it is easy, and you
    spelled the word for us, E-A-S-Y, which is helpful because we
    are House Members. We like to hear words.
        And then you made it so easy because you attach--Mr.
    Chairman, just for our record, he--is this part of his
    statement that is admitted to the record where he has proposed
    amendments? I want to read this one section in which you are
    suggesting changes. It is 836, section 36; the title of it: The
    President May Prescribe Rules, which is current law. And the
    addition you suggest--and this is the new language you suggest.
    I am going to read it.
        ``To the extent that the President considers it
    impracticable for the regulations for military commissions and
    provost courts to apply the principles of law and the rules of
    evidence generally recognized in the trial of criminal cases in
    the United States district courts, the procedures in military
    commissions and provost courts shall, subject to any applicable
    rule of international law and with the exception of section 832
    of this title (article 32), apply the principles of law and
    pretrial, trial, and post-trial procedures, including modes of
    proof, prescribed for general courts-martial.''
        Well, the key part of that, if I am correct, Mr. Hutson, is
    that--the lead-in phrase, ``To the extent the President
    considers it impracticable,'' is what you are saying there that
    if the President determines with the advice of these gentlemen
    at the table--of course we are not going to have Miranda
    warnings on the battlefield, we are not going to have strict
    chains of custody for evidence. Describe it. It seems to me
    what that provision that you are suggesting we adopt deals with
    the concerns of the gentleman to your right. Is that a fair
    description?
        Admiral Hutson. Yes, sir. It is a fair description, and we
    try to track basically the thrust of the Hamdan decision. With
    respect when Mr. Bradbury used the word ``flexible,'' it kind
    of sends a chill up my spine because it just sounds too
    flexible, but I think that if the President is saying that it
    is impracticable to do this for the following reasons, Article
    32, Article 31, those kinds of things, he can make that
    determination, report it to Congress, and we will move on, and
    we will actually get some trials, we will actually complete
    this job.
        Dr. Snyder. May I ask one quick follow-up, Mr. Chairman?
        And what you are suggesting is that these would be--the
    President's rules would be not on a case-by-case basis, but----
        Admiral Hutson. No.
        Dr. Snyder. Lay down a report to the Congress.
        Thank you, Mr. Chairman, for holding this hearing.
        Mr. Dell'Orto. Mr. Chairman, may I respond?
        The Chairman. Oh, certainly. Any members of the panel can
    respond. Certainly.
        Mr. Dell'Orto. Congressman Snyder, we have been looking at
    this particular question, as you can imagine, and let me give
    you some of our preliminary assessments again. These are
    preliminary, and so we have got--we do have much more work to
    do.
        To do what you suggest or what Admiral Hutson suggests,
    preliminary assessment would indicate that 110 rules for
    courts-martial, 73 military rules of evidence, and somewhere
    between 145 and 150 articles of the Uniform Code of Military
    Justice would require some form of amendment to permit us to
    take the existing structure and adapt it for military
    commission process. That is a gutting of the Manual for Courts-
    Martial and the Uniform Code of Military Justice.
        If you look at the current structure that we have in the
    military commission order, comments from the President's
    military order, we have a process there that we believe
    comports very, very well and compares very favorably with both
    the International Criminal Tribunal for the Former Yugoslavia
    and the International Criminal Tribunal for Rwanda.
        To the extent we have to do this in order to approach or to
    satisfy the Common Article 3 requirement that we have a system
    that comports with these international norms of indispensable
    rights that the citizens of the world would be happy with, then
    we believe that if our structure as it is currently laid out
    matches what the international community has already said is
    workable, we are already there or just about there, and the
    minor tinkering that would have to take place with respect to
    the existing structure for military commissions is, in my
    estimation, and as much as I have to--I hate to disagree with
    Admiral Hutson, a much easier process to undertake than to try
    to, as I described it, gut the Uniform Code of Military Justice
    and the Manual for Courts-Martial.
        Dr. Snyder. And I think that is the kind of discussion we
    will have over the next few weeks and month or two, and I
    suggest, Mr. Dell'Orto, the Chairman will want you to provide
    us your analysis of that in the way we can all analyze it just
    like we have Mr. Hutson.
        Mr. Bradbury. Mr. Chairman and Congressman Snyder, I just
    wanted to add one point, and that is that I don't think that
    the implications of the Court's decision in Hamdan are limited
    exclusively to the question of procedures for military
    commissions, because as I tried to lay out in my testimony, the
    Court's ruling on Common Article 3 was an interpretation of the
    scope and application of that, of Common Article 3, and
    contradicted or superseded the President's determination in
    2002 that Common Article 3 does not apply. The Court
    essentially said this is not an international conflict, and
    therefore Common Article 3, which in the past has been read to
    apply only to internal conflict, civil wars, if you will, now
    has general application in our war with al Qaeda, and that has
    implications and ramifications beyond simply the procedures for
    military commissions.
        The Chairman. Okay. Any other responses?
        I thank the gentleman from Arkansas.
        The gentlelady from Michigan, Mrs. Miller.
        Mrs. Miller of Michigan. Thank you, Mr. Chairman. And thank
    the witnesses for all appearing before the committee today. We
    appreciate your service to the Nation and appreciate your
    testimony here today.
        I have been trying to listen to this. I am not an attorney.
    There is a lot of legalese going on here. I don't even have a
    college degree, but I am one of the few Members of Congress. I
    am not proud of that, but that is just the way it turned out in
    my life, but I think I am a reflection of middle America.
        I will tell you, listening to the Supreme Court ruling, it
    just struck me as being incredibly counterintuitive, and when
    we think about the type of enemy that we are facing today, a
    new type of enemy, one that hides in the shadows, one that
    preys on the innocent, one that wants to kill us, and it has
    been--they have been categorized as--how we need to be
    civilized, these people do not meet the basic standards of
    civilized human beings. I think it is very difficult for us as
    Americans to even get our mind around the concept of a suicide
    bomber teaching a young person to be a suicide bomber and what
    that means. I mean, I don't consider that to be civilized
    behavior.
        And as we have talked today about what the Supreme Court
    ruling actually says, that we need to have congressional
    participation in this, perhaps this could be very easily
    handled. As you mentioned, it could be easy. Could it be as
    easy as what Mr. Dell'Orto--I hope I am pronouncing your name
    correctly--has suggested, that we actually just ratify what the
    executive branch and the DOD has done and move on? That is my
    question.
        Mr. Dell'Orto. Ma'am, I believe that that is--that would be
    a very desirable way to proceed.
        Admiral Hutson. You might not be surprised to hear that I
    disagree with respect to Mr. Dell'Orto. I think that--and I
    don't disagree with your characterization at all. It goes back
    to what Congressman Hefley pointed out, though I think--which
    is that we have got the war on terror, and then on the other
    hand we are talking about prosecuting people. And what some of
    my colleagues here at the table have said--and to some extent,
    the way you phrase the question flies in the face of what Mr.
    Dell'Orto said earlier about presumption of innocence, you
    know. He said--we need to ensure that there is a presumption of
    innocence if we are going to prosecute people. Remember, I am
    saying that we don't have to prosecute them, but if we decide
    that we are going to prosecute them, then we have to afford
    them those rights, which include not presuming that they are
    cutting everybody's heads off and they are suicide bombers, but
    that we just buy into this presumption of innocence deal, and
    if we can do that, then we can create a system in which we will
    really be able to prosecute. But I think that if the opinion--
    and particularly Justice Kennedy's discussion of the present or
    the pre-Hamdan commissions makes it pretty clear that there are
    some legal difficulties with it that would make simply this
    body simply endorsing what had been done before, although you
    would fix the regularly constituted part of it, I think you are
    going to run headlong into the indispensable guarantees part of
    what the Court said.
        Mr. Olson. I think it is a very, very good question. It is
    a very, very sound basis upon which to resolve this problem.
    Either, as Mr. Dell'Orto said, you start with a massive gutting
    of the Uniform Code of Military Justice, which was not created
    for this type of situation at all, it was created for our
    servicemen and women and has all sorts of rights in there. It
    does have the equivalent of Miranda rights in it, or the right
    to be cautioned that statements may be--either you start with
    something that is utterly unworkable and inappropriate and not
    designed for this process, or you start with what the President
    carefully and thoughtfully put together that was designed with
    the experts in the Defense Department to deal with these
    circumstances, and then if there is something wrong with it,
    add something to it.
        So that is--that I do think is the right way to go. It
    makes perfect sense. The only two things that the Supreme Court
    found that specifically talked about--anyway, that was wrong
    with the procedures was a quibble with respect to the standard
    for the admissibility of evidence. My own personal opinion is
    that what the President had outlined in the commissions made
    perfect sense, given battlefield conditions and the difficulty
    of obtaining evidence and that sort of thing, and the right to
    the accused--right of the accused to see sensitive national
    security classified information, that would be insane, in my
    judgment, to give to terrorists.
        So that the two things the Supreme Court found wrong that I
    was able to read in the opinion anyway are things that I think
    you would agree the President got it right. But if there are
    some things wrong with it, then that is the platform, that is
    the basis upon which to start.
        Mrs. Miller of Michigan. Thank you very much.
        The Chairman. Okay. I thank the gentlelady.
        The gentlelady from California, who has spent a lot of time
    on this issue, Ms. Sanchez.
        Ms. Sanchez. Thank you, Mr. Chairman, and thank you,
    gentlemen, for being before us today.
        I have--I did begin to work on this several years ago after
    I went to GTMO and took a look at what was going on, and
    actually I have taken a lot of time to talk to the prosecutors
    who have been at GTMO and have been working through this, and,
    of course, I have some legislation issue.
        As you will know, I introduced in 2004 and again in 2005
    and brought it up in our authorizing meeting, and at that
    meeting I said, you know, after June in the Hamdan case we are
    going to be visiting this. So here we are.
        I think that Justice Kennedy and Justice Breyer got it
    right when they said nothing prevents the President from coming
    back to Congress to obtain legal authority for military
    commissions to proceed. And having looked at the Federal courts
    and looked the courts-martial and the UCMJ, I do think this is
    the place to put it in to constitute a commission in which to
    do this.
        My questions have to do directly with some of the--two of
    the areas, the area of evidence and the area, if we get to it--
    and I guess we are going to have a second round, maybe I will
    get to the other later, but here are some of the questions I
    have. I am going to read a couple of them and then have--you
    will know who gets to answer to these.
        In the oral argument before the Supreme Court, Mr. Hamdan's
    defense counsel argued that military commissions weren't
    necessary because he said that his--that Hamdan could be tried
    by regular courts-martial. Mr. Dell'Orto and Mr. Bradbury, if
    you are correct in your assertion that routine evidence rules
    would make it impossible to prosecute most al Qaeda cases in
    regular courts-martial, and I believe you are correct in that,
    wouldn't you expect that Mr. Hamdan's first motion in a court-
    martial would be to suppress most of the government's evidence?
    And wouldn't such a motion be made by any competent defense
    counsel, and wouldn't it likely succeed in gutting the
    government's case?
        It seems to me that this would be the practical effect of
    sending these types of cases to court-martial. Would you agree
    and maybe expand a little on that? And let me give the other
    question that I have, and then maybe you can all answer to
    this.
        Again, the rules of evidence, all of you, including Admiral
    Hutson, accept the view that different rules of evidence are
    required for war crimes cases. The usual reasons cited for this
    are the deviation from gathering, etc. The evidence in war
    crime trials would likely include hearsay, evidence without a
    clear chain of custody, and interrogation products obtained
    without Miranda warnings and other safeguards against coercion.
    And in this I would say to my colleague Dr. Snyder, red herring
    might be when we talk about Miranda rights on the battlefield,
    but when you look at Miranda being required to be used during
    all the years of interrogation of a suspect, I think then it is
    not really a red herring, and certainly hearsay is not.
        So a single rule of evidence in military commission order
    number one is that evidence shall be admitted if the evidence
    has probative value to a reasonable person. This standard is
    very similar to the role of admissibility used by the
    International Criminal Tribunal used by the former Yugoslavia
    which states that a chamber may admit any relevant evidence
    which it deems to have probative value. And, of course, the
    International Criminal Tribunal for Rwanda uses the nearly
    identical standard as well.
        In view of the similarity of these standards, there seems
    to be an international consensus that war crime trials require
    broader and different approaches to admissibility of evidence.
    So the questions would be, what additional rules regarding
    admissibility or exclusion of evidence are essential to ensure
    reliable verdicts in military commission cases? And if it is
    commonly accepted that coerced admissions are not reliable and
    therefore lack probative value, do you believe that this
    standard, probative value to a reasonable person, is sufficient
    to exclude evidence derived from coercive interrogations? And
    how would you fashion a rule of exclusion that prohibits
    admission of statements obtained through coercive
    interrogations?
        Mr. Dell'Orto. You probably haven't given me enough time to
    think about the approach I would take as a defense counsel to
    the Hamdan. But certainly I would--I would challenge the
    admissibility of any statement he has made.
        For one of my first challenges, one of my first motions
    would have been to dismiss on the motion of a lack of a speedy
    trial. Hamdan has been in our custody for three years, four
    years, whatever it has been at this point. The military--the
    rules for court-martial require that he be brought to trial
    within 120 days, if I recall correctly--again, I am going back
    some period of time--of the time that he was put in custody,
    and so that is one of my very early motions I would make to get
    my client out of jail.
        So I see great problems. And again, if I were quicker on
    the draw, I could probably give you four, five, six, or seven,
    eight or nine other motions I would be dropping very quickly in
    that case based upon rules of evidence, rules of courts-
    martial.
        Let me ask some of the others to answer some of the other
    questions, and I will get back to you to follow on, and to be
    quite honest, I had an answer to the third part of your answer,
    but I can't recall right now.
        [The information referred to can be found in the Appendix
    beginning on page 115.]
        Ms. Sanchez. Thank you.
        Mr. Bradbury. Congresswoman, I would say I would agree with
    your description of what a defense counsel would do in Hamdan's
    case or another one of these cases if brought in the construct
    of the UCMJ. I mean, absolutely that is what I think would
    happen. All those motions would be interposed, and chain of
    custody of evidence, and all of those issues that would impede
    a trial under the UCMJ framework would have to be addressed,
    and it would be very difficult to go forward under those
    conditions.
        I wouldn't say that the standard needs to be that none of
    these--that prosecutions would be impossible. I think the
    standard is that it is as a general matter a judgment. In this
    case it would be a judgment by Congress working with the
    Administration and framing legislation, a judgment that the use
    of those procedures is impracticable as a general matter in
    these kinds of cases.
        As to the coercive statements point, first of all, as the
    rules of the military commission process currently in place
    make clear, and as our treaty obligations suggest, we do not
    use as evidence in military commissions evidence that is
    determined to have been obtained through torture. That is
    simply not admissible if it has been obtained through torture.
    And that is consistent with our treaty obligation. It is a
    worldwide policy for the United States, and it is reflected in
    the rules currently for the military commissions.
        But when you talk about coercion and statements obtained
    through coercive questioning, there is obviously a spectrum or
    gradation of what some might consider pressuring or coercion
    short of torture. And I don't think you can make an absolute
    rule. Again, I think it needs to be a judgment that is made by
    the fact-finder, and the way that that is addressed in the
    Detainee Treatment Act, which addressed judicial review of the
    combatant status review tribunals, those tribunals that judge
    that the detainee is an enemy combatant at the outset of the
    process, the way Congress dealt with that was to say that the
    commission is to weigh the probative value of that evidence,
    basically to weigh the probative value against the undue
    prejudice that might occur to the process from the use of
    evidence that may have been obtained through coercion. It
    didn't create an absolute exclusionary rule.
        I think an approach like that is certainly more appropriate
    because arguments will always be made--when you don't have
    something like Miranda rights, arguments will always be made
    that, oh, the questioning was coercive, even when we can agree
    it doesn't amount to torture, it doesn't--it doesn't violate
    some fundamental standard of conduct that might apply. So you
    need--again, it is an area where some flexibility is needed.
        Ms. Sanchez. It sounds to me like you are saying that the
    minimum value would be the probative value to a reasonable
    person, which is what we see reflected in the standards, quite
    frankly, of the other tribunals that we see around the world
    with respect to war crimes.
        Mr. Bradbury. Yes. I think that is right.
        Ms. Sanchez. And I think it is very important for us to
    understand because someday we will catch Osama bin Laden, and
    then we have to decide how we are going to try him. And this is
    why these hearings and what we do becomes so important.
        Anybody else?
        Admiral Hutson. Yeah. If I may, I would draw a bright,
    clear line with coercive evidence for all the reasons that we
    draw that bright clear line having to do with the probative
    value of it, but also having to do with inhibiting
    interrogators or police, civilian context, from engaging in
    that kind of activity. I think that that is an important thing,
    and I also think that it is important for the reputation of the
    United States internationally.
        As I am sure you know, there is a raging debate with regard
    to the impact of non-U.S. law on the United States. I kind of
    fall in the middle of that. I guess what they are doing in
    international tribunals is interesting to me, but certainly not
    determinative. I would add to the probative value, it has to--
    you know, it has to have that at least, but I would add
    apparent authenticity and validity. There has got to be some
    standard by which the evidence is judged and admitted. We can't
    just throw everything in there and then let the finder of fact
    sort through it. That is the reason you have a judge, which is
    one of the reasons that using a court-martial kind of system
    with modifications has value, I think.
        The Chairman. The gentlelady could reserve. We will have
    the responses to the last--her last question here in the second
    round if we could, and let's go to the gentleman from Texas,
    Mr. Conaway.
        Mr. Conaway. Thank you, Mr. Chairman.
        Mr. Dell'Orto or Mr. Bradbury, could you describe for us
    what the President's plan is that you simply want us to put
    into law? And also, what is the legal phrase for applying--
    creating a crime, and then say you were committed before the
    law was put in place. There is a legal phrase that I have lost.
        Mr. Bradbury. Ex post facto.
        Mr. Conaway. There you go. Would these changes--ex post
    facto apply to the detainees in Guantanamo if we do, in fact,
    make these changes in the law?
        Mr. Bradbury. If I could say yes, they would apply, and
    that would not be an ex post facto, because ex post facto
    concepts go to the substance of the law, not by the procedures
    by which you are tried. So it would not be--if you are creating
    a brand-new crime and saying now people are subject to a brand-
    new crime, you can't apply that ex post facto to a U.S. citizen
    under our Constitution.
        But here we are not talking about creating the substance or
    elements of crimes. We are talking about the procedures that
    would go into the bodies that would try those persons for those
    crimes, which are war crimes, crimes under laws of war.
        Mr. Conaway. Okay. Would one of you describe the
    President's current plan?
        Mr. Bradbury. Well, I think the plan is to work with
    Congress.
        Mr. Conaway. No. Oh, no, I am sorry. The tribunal that was
    struck down that you are saying we need to codify, would you
    describe for us what that tribunal currently looks like had it
    not been stuck down?
        Mr. Dell'Orto. The current tribunal that has been struck
    down? Again, it has many of the fundamental--it would be very
    recognizable to most people in terms of many of the things that
    are already incorporated. You know, we have a presiding
    official who is a military trial judge, an experienced trial
    judge, the same judge who would be trying cases in our courts-
    martial process.
        We have the rule of evidence that we have already
    described, which is a very--which is a more general rule than
    we are used to in our civilian practice that is--admits a
    broader swath of evidence.
        We have appellate review in the review panel that has--of
    decisions that come out of the tribunal that includes four very
    distinguished individuals, Judge Griffin Bell, former Attorney
    General of the United States. We have Secretary--former
    Secretary of Transportation William Coleman. We have Judge
    Biester, who is a trial judge in Pennsylvania, and we have
    Chief Justice Frank Williams, who is the Chief Justice of the
    Rhode Island--Rhode Island Supreme Court as the four members
    who constitute the review panel of the appellate court, if you
    will, of the results of these trials.
        We have provisions for interpreters. We have provisions for
    ensuring that the accused is presented the charges which he
    will be facing well in advance of trial.
        We have provisions of assignment of military counsel, the
    same counsel--the same type of counsel who would defend our
    soldiers, sailors, airmen and marines and coastguardsmen, and
    they are courts-martialed, and they are defined as military
    defense counsel for the accused detainees. The accused detainee
    has the right to obtain a civilian counsel, assuming that
    civilian counsel meets certain qualifications that are set out
    in the rules. We have a requirement that for any charge for him
    to be convicted. Two-thirds of the members who sit on the court
    panel, which includes the presiding officer and up to, I guess,
    six other members who would be military officers just as we
    have in our court-martial process, would be the ones who would
    adjudicate guilt or innocence, and a judge's sentence ought to
    be reviewed by the review panel--the appointing authority of
    the review panel when all of that is done.
        I don't know if that gives you a sense of sort of the basic
    framework. I could go on with much more detail if we had more
    time, Congressman.
        Mr. Bradbury. I would say, Congressman, that fundamentally
    these are procedures that are built on past military
    commissions that have historically and traditionally been used
    by the United States during times of armed conflict. And the
    use of military commissions and procedures like that go all the
    way back to George Washington when he was general during the
    Revolutionary War, and it has been a tradition through armed
    conflicts in our Nation's history of using traditions like
    this, although these commissions add additional procedural
    protections that have not been in past commissions.
        Mr. Conaway. Okay.
        Mr. Dell'Orto. And I would also add, Congressman, since I
    was there at the start and took part in much of the drafting
    process, that we looked at the Manual for Courts-Martial as we
    were putting this together to borrow from it many of those
    things that are--that are sort of at the foundation of the UCMJ
    and the Manual for Courts-Martial.
        Mr. Conaway. Thank you, sir. Appreciate it, Mr. Chairman.
        The Chairman. Thank the gentleman.
        And the gentlelady from California, Mrs. Tauscher, is
    recognized.
        Ms. Tauscher. Thank you, Mr. Chairman. Thank you for being
    here.
        I think we all can stipulate that we are with Common
    Article 3 interested in dealing with the potential of finding
    Osama bin Laden and being able to bring him to trial in a trial
    that we all understand is one of transparency, and where
    evidence potentially is gathered, and where we can find an
    adjudication process where the world sees Osama bin Laden put
    to trial in a fair way and a timely way, where he is
    potentially found guilty, and then he has a sentence that is
    commensurate with his heinous crimes. And I think that is the
    place we all have to start from.
        As my great colleague from California, Ms. Sanchez, has
    said, we have to kind of look to the future as we look into the
    past as we try to preserve all the great things that we have.
    And I am personally for looking at the reforming of the UCMJ
    and making sure, as Admiral Hutson has suggested, that we have
    things that have worked and build on them and move forward.
        I think one of everyone's concerns is this issue of--that
    we are hearing bantered around in the press that potentially
    classified information would have to be made available, as both
    Mr. Dell'Orto and Mr. Bradbury have suggested, to defendants,
    and that, of course, would create a national security crisis
    for us. But I think we--the analysis that I have been shown is
    that both the Classified Information Procedures Act, CIPA, and
    the military rules for evidence for courts-martial, which is
    modeled after CIPA, protect the disclosure of any classified
    information whose disclosure would be detrimental to national
    security. Apparently this would apply in anything that we do
    going forward that would include reform of the UCMJ for
    potential military commissions. Do you all agree?
        Mr. Dell'Orto. Congresswoman, let me make two brief
    comments on that. One generally. When we try these defendants
    in these commissions at some point relatively soon, we must be
    mindful of the fact that we are trying them while the conflict
    continues. It is not as though we were conducting these trials
    at the end of World War II where much information that might
    have been highly sensitive, highly classified, that we
    certainly did not want to reveal to the enemy, would not be as
    critical a piece of information. Today if we are in the
    classified arena with some of this information, whether it is
    information collected through national technical means or
    sensitive sources and--sources that we have on the ground in
    other countries, that is--those are key ways that we are
    getting information about this particular enemy.
        Ms. Tauscher. But that is the challenge of the asymmetry of
    this fight.
        Mr. Dell'Orto. Exactly. And we can't let him use our
    process, our due process, our legal system as one of his other
    weapons as he carries on this fight.
        Another factor to consider with respect to the military
    rule of evidence, I think it is 505, as Admiral Hutson
    indicated.
        Ms. Tauscher. That is right.
        Mr. Dell'Orto. With respect to handling classified
    information, normally when we are trying somebody in or a
    soldier in our courts, we are trying him for something he has
    done with evidence that he has already had access to. He has
    mishandled that information. He has given it over to the enemy.
    He has been derelict in the way he handles it, and so he has
    already seen that evidence. We are not presenting to him
    anything that he hasn't already seen. And so the concern there
    is not that the accused doesn't see it, because he already has
    seen it, but that the world doesn't see it.
        The third point I would make, and I am sad to have to say
    this, our track record in military courts-martial, in trying
    cases in which there is classified information, is not
    particularly good. We have had success in some cases, but I
    will tell you both at the trial level and at the appellate
    level, if you look back through the case histories, the
    histories of those cases, we have on balance done a much more
    poor job of prosecuting people than we would--than we have as a
    general proposition in cases that don't involve classified
    information.
        Ms. Tauscher. I think this is really an area of
    jurisdiction where we have to be enormously creative at the
    same time that we have to deal with the rule of law and the law
    of war. And this military rule of evidence 505, as you suggest,
    is one of those sticky wicket places where I think we are going
    to have to have counsel from various venues, Admiral Hutson. I
    hope you will help us with this, too, Mr. Olson.
        But for the record if you would each get back to the
    committee and me specifically as to your suggestions on how we
    deal with this issue, because obviously this is a baby in the
    bath water issue. We don't want to have to divulge sources and
    methods, other operations that are going on, people in theater,
    identities of people at the same time that we are trying to
    adjudicate in a swift and in a fair way these potential
    captives.
        So I really want to yield right now because I know we have
    other people, but I think this is a very important issue. If
    anybody ever--if anybody else has a quick comment, I am happy
    to accept it.
        [The information referred to can be found in the Appendix
    beginning on page 119.]
        Admiral Hutson. If I may, let me just say that I think it
    is very, very difficult for the United States of America to say
    to anybody, we know you are guilty, we can't tell you why, but
    there is somebody that says you are guilty; we can't tell you
    who, but we know they are reliable; we can't tell you how we
    know that, but you are guilty.
        The Chairman. Thank the gentlelady. The gentleman from
    Connecticut, Mr. Simmons.
        Mr. Simmons. Thank you, Mr. Chairman, for this hearing,
    which I consider to be historic; times of stress or times when
    our values really need to be preserved and protected. And I
    remember after the Boston Massacre in 1770 in Boston,
    Massachusetts, John Adams defended the British Redcoats. It was
    an unpopular decision for him to make, but that is what he did.
    And during World War II, 1942, April, May of 1942, when Hitler
    sent eight saboteurs to Florida and Long Island, Kenneth Royal,
    an Army colonel, took the very unpopular position of defending
    those saboteurs, six of the eight of whom were electrocuted
    here in Washington, D.C. So I commend the Chairman and the
    Ranking Member and the members of the committee as well as the
    panel for taking on this difficult issue.
        I served for over 37 years in the U.S. Army. I consider the
    UCMJ as something that was created for us as military
    personnel, and I can't see clearly the application to enemy
    combatants or terrorists, as one of my colleagues said. These
    are folks that do not respect the rules of law. They take
    hostages, they kill noncombatants and innocent civilians, they
    cut people's heads off, et cetera, et cetera.
        So I guess my question goes to the issue of what kind of
    model is going to work best. A colleague of mine who is a Coast
    Guard attorney has written an op-ed calling for a national
    security courts system, which take a little bit from the UCMJ
    and a little bit from military tribunals, and what he refers to
    is a new kind of law for a new kind of war. A new kind of law
    for a new kind of war. We have our traditional criminal courts.
    We have our tribunals and commissions. We have our UCMJ. But it
    occurs to me that we are in a new kind of war. We are trying to
    maintain our respect for our values in dealing with people
    involved in this new kind of war, and perhaps it is incumbent
    upon the Justice Department, Defense Department, and this
    Congress to shape an altogether different model for differing
    justice in this framework, and I would be interested in your
    comments. But before I hear the comments, I would like to ask
    the Chairman if we could insert this op-ed piece into the
    record.
        The Chairman. Without objection, we will put it in.
        [The information referred to can be found in the Appendix
    on page 101.]
        Mr. Simmons. Gentlemen, a new kind of law for a new kind of
    war?
        Admiral Hutson. Mr. Simmons, I am generally familiar with
    that kind of concept, and I find it very intriguing. I am not
    sure it is the most efficient way to do it. And I take your
    point about the UCMJ.
        The UCMJ, as it is presently constituted, is clearly there
    to protect the rights of U.S. servicemembers and to efficiently
    prosecute them when they need to be prosecuted, and has done
    that very well over the years. What I am suggesting is that you
    could build on top of that an enduring, regularly constituted
    court to do the same kind of thing that that proposal would do.
    I think that, you know, certifies the sort of court--is
    certainly possible to create a court that is regularly
    constituted because this is the body that authorizes it, and
    that it protects the fundamental, you know--the words out of
    Article--Common Article 3 that we have been talking about,
    considered--the judicial guarantees considered to be
    indispensable by civilized peoples. A court, some other kind of
    court, could do that, absolutely, sir.
        Mr. Simmons. And you reference the FISA Court that was
    created in the 1970's to deal with a specific problem.
        Admiral Hutson. Right.
        Mr. Bradbury. Congressman, I will jump in and say I agree
    with you completely. It is a new kind of war, and it does
    require a new kind of rules. That is what the President was
    trying to do, I think, and the Secretary of Defense with the
    existing military commission structure, and now what this
    Congress needs to focus on, I think a military commission-type
    approach is the right way to go.
        I think that rules that will need to be focused on,
    obviously, like use of classified information, I don't believe
    that using the Classified Information Procedures Act or CIPA is
    the right way to go. That is designed for criminal trials of
    U.S. citizens in U.S. Article 3 courts and the use of
    classified information in that context, and it really impedes
    the government's ability to go forward with prosecutions, which
    in these circumstances ought to be allowed to go forward under
    different rules, and we can work on what those rules ought to
    be.
        The final thing I would say in terms of setting new rules
    for this war on terror is that we really think Congress needs
    to do something to bring certainty and clarity to the
    application of Common Article 3 and some of the vague phrases
    in Common Article 3 that I referenced in my testimony, because
    an important part of what needs to be done to bring sureness
    and certainty to those folks on the front line who are handling
    detainees--because again, the concepts in Common Article 3 have
    never been applied previously to an international conflict with
    a terrorist organization like al Qaeda, and we need to set
    those rules going forward for the United States, and we think
    they should be defined by U.S. law.
        Mr. Simmons. I thank the Chairman, and I thank the panel.
        The Chairman. Thank the gentleman.
        The gentleman from New Jersey, Mr. Andrews.
        Mr. Andrews. Thank you, Mr. Chairman.
        In listening to the testimony and reading it this morning,
    it appears to me that we have two points of consensus and two
    very practical dilemmas. First, I think there is a consensus
    that none of us wants to treat Osama bin Laden's bodyguard the
    way we would an American citizen accused of car theft. There is
    just no sense that the normal rules ought to apply.
        And then second, I don't think anyone is saying that we
    should run an arbitrary process that does not command respect
    around the world as being transparent and fair. I think we are
    all saying essentially the same thing. The practical
    considerations I would like to focus on go to the discovery
    problem and the Miranda warning problem.
        Mr. Bradbury, I want to ask you a question about the
    discovery problem. Let us assume that we have a person who is
    not a U.S. citizen who is accused of participating with al
    Qaeda, and among the pieces of evidence against that person is
    testimony from a peer that this person has been engaged in
    terrorist activity. Also on the record is the fact that the
    accuser of the person has some normal garden variety grounds to
    be biased and prejudiced against that person. Let's say there
    has been a romantic entanglement involving three people or a
    dispute over a commercial dispute; someone has a motive to tell
    a lie about the person. Should that fact be discoverable by the
    defense in the military commissions that we are talking about?
        Mr. Bradbury. Well, in your question, Congressman, is the
    other person who has given the evidence an intelligence source
    for the United States who needs protection? Because that raises
    yet another set of issues. But assuming that is not the case,
    then the identity of that person would be made known to the
    detainee defendant and his counsel, and the statement that may
    have been taken from that person--the person let's assume is
    not available to appear at the military commission trial, so
    you are going to need to use some kind of hearsay statement,
    some kind of sworn statement or other statement that can be
    verified, and the fact-finder determines it is probative, it is
    reliable to rely on it, then I think in that hypothetical that
    the detainee defendant would--if he knows who that person is,
    would be able to raise issues about the bias of that person or
    the accuracy or correctness of the statements--of the
    statements made.
        If that person is an intelligence source for the United
    States, then that raises additional issues that would need to
    be dealt with, because information about an intelligence source
    cannot--we cannot allow that to get out to other terrorists who
    wouldn't take very long to dispatch that.
        Mr. Andrews. What if it is the first assumption, and the
    accuser is not an intelligence source, but the accuser's
    identity was discovered by an intelligence source? So, in other
    words, in the fact-gathering process to make charges against
    the detainee, an intelligence source tells our intelligence
    agencies, you know, yeah, this guy over here has some
    interesting information about the detainee. What about that?
        Mr. Bradbury. Well, I think there would be a way consistent
    with fundamental fairness not to have to disclose to the
    detainee in these proceedings such that we might compromise our
    intelligence sources the providence of that--of that chain, in
    other words, how we came to that person, because that would in
    and of itself reveal a confidential intelligence source. But
    the tribunal may know that and judge that it is reliable.
        Mr. Andrews. If that issue itself were litigated in
    discovery, it should be the tribunal who determines whether it
    is a discoverable fact or not?
        Mr. Bradbury. In the first instance, I think so, yes.
        Mr. Andrews. And that would be an in camera proceeding?
        Mr. Bradbury. Well, in terms of the intelligence
    information that is at issue, if there is any, the classified
    information could be presented to the tribunal in an ex parte,
    in camera process that, in fact, is done, for example, with the
    International Criminal Tribunals for Rwanda and Yugoslavia
    where lots of times you have state secrets of the various
    nations involved or that may be very sensitive, and defendants
    may try to get discovery of that sensitive information, and in
    those tribunals it is available to go ex parte in camera to the
    tribunal to make a case for not presenting that information.
        Mr. Andrews. Were the discovery results you just
    articulated included in the order that was invalidated by the
    Supreme Court?
        Mr. Dell'Orto. I believe they were, Congressman, to a large
    extent. I mean, the prosecution is obligated to provide to the
    defense all the evidence it is prepared to present as part of
    the trial, and to the extent you get into these collateral
    issues of the identity of the--of the intelligence source
    themselves that must be protected, I mean, that information I
    would think would be part of the file that would be--that is
    presented to the defense counsel.
        Mr. Andrews. Admiral Hutson, I want to ask a question about
    Miranda warnings. Is it your understanding under the military
    justice code that a person who is suspected, once the suspicion
    is established, it triggers the right to be represented by
    counsel; is that your understanding?
        Admiral Hutson. Yes, sir.
        Mr. Andrews. Do you think that right should extend to
    suspected detainees; they have a right to have counsel present
    with them during their interrogation?
        Admiral Hutson. I think that once you take them--you know,
    we keep talking about the battlefield, and the world is the
    battlefield in some respects, but once you take them from where
    they are and put them at Guantanamo, if you are interrogating
    them for purposes of prosecution, then I think you do. If you
    are interrogating them for intelligence purposes, and you may
    be able to draw a bright line between the two where the
    intelligence--the intelligence interrogators are not sharing
    information with the prosecution interrogators. So I see a
    difference in that regard.
        Mr. Andrews. The bright line seems awfully difficult. If
    you ask the detainee whether he was part of conversations about
    a possible plot to blow up the Holland Tunnel, is that an
    interrogation for the purpose of prosecution, or is it an
    interrogation for the purpose of intelligence gathering?
        Admiral Hutson. Well, you ask them two different times. One
    time you ask them is the intelligence inquiry, and the other
    time is the prosecution inquiry.
        Mr. Andrews. Who decides whether the lawyer should be
    present before the interrogation?
        Admiral Hutson. I think the rules decide that, the rules
    that you set up decide that.
        Mr. Bradbury. Congressman, if I may, I think this--just to
    illustrate this would be entirely unworkable. I think when we
    have detainees at GTMO or elsewhere in the war on terror, we
    need for intelligence purposes to be able to question them in
    an unfettered way, and when we have exhausted the intelligence
    we think we can get, and we think we have got a case to make,
    we can then initiate a war crime prosecution, and at that point
    they can have counsel and they can have the availability of
    counsel, and we can move forward with a fair process. But we
    cannot intermix the two and try to draw that line because it is
    just going to impede our ability to protect the country through
    vital intelligence gathering.
        Mr. Andrews. Thank you. I see my time has expired. I
    appreciate it.
        The Chairman. I thank the gentleman.
        Another gentleman from New Jersey, Mr. Saxton.
        Mr. Saxton. Thank you, Mr. Chairman, and I think it is
    great that we are holding this hearing today. It is very
    important set of subjects, I guess you would call it.
        I would like to ask a little bit different question, if I
    may. Based on my observations, the necessity for collecting
    information in prosecuting this war is historically different
    than it has ever been before. During the process of carrying
    out our oversight responsibilities, it seems to me there are
    certain conclusions one can come to in a practical sense, and
    one of those conclusions is that detainees provide a constant
    flow of information that is necessary for us to conduct
    successful operations.
        They are not the only source, but they are one of the
    sources and an important source. It has been suggested here
    today by Mr. Hutson, and I respect his opinion, that the UCMJ
    has been used as kind of a model for prosecutorial proceedings.
    Given the need, that we all know about, to collect information
    on this enemy, what effect would the adoption of a process such
    as that suggested by Mr. Hutson have on our ability to collect
    information?
        Admiral Hutson. Sir, I don't think it would have a
    significant effect one way or the other. You can prosecute them
    first, and interrogate them, get the intelligence information
    after you have convicted them if they are convicted. You can
    get the intelligence information and then prosecute them.
        We run again, and your question points up the point that
    Congressman Hefley made earlier about conducting the war and at
    the same time that you are conducting the war, you are
    prosecuting in a judicial sense the people that you have taken
    off the battlefield, and that creates its own difficulties.
        But I think that we run into serious problems when we try
    to combine the two, the warfighting on one hand and the
    prosecution on the other. If we want not to prosecute them,
    that's fine. But if you are going to prosecute them, I think
    that you need to do it in accordance with the generally
    accepted rules.
        Mr. Bradbury. Congressman, I think, again, with respect
    that points out the complete unworkability of applying in whole
    cloth the UCMJ procedures to military commissions. If the
    proposition is we have to try them and convict them and get
    them in prison as a convicted war criminal first before we
    interrogate them to get vital intelligence then we put
    Americans at risk and our soldiers at risk because we are not
    getting intelligence that we may need and we may need it right
    now. That has to come first.
        Whatever the procedures that are in place and the lines
    that are drawn, they can't impede that vital necessity. And so
    I think a lot of the other specifics we have talked about here
    today help establish and clarify why the various procedures
    need to be flexible in certain respects to make this all work.
        Mr. Dell'Orto. Congressman, let me get back to the premise
    of your question because I think it is important. What is
    different about today than other combat we have engaged in in
    the past? Particularly going back to World War II and Korea, as
    a matter of general intelligence, you sort of know who the
    enemy is, who is arrayed on the other side of the line of
    battle. You know his order of battle. You know his division
    commanders, his battalion commanders. You probably know down to
    the company command level who these guys are.
        And when you take captives during that process, you
    generally know that the private, the corporal or sergeant
    doesn't know much beyond what happened that day or what may be
    planned for tomorrow. If you get the general, you get the
    brigade commander who is a colonel, he is going to have more
    information. You are going to know to focus your information on
    him.
        When we pick up these guys, and Hamdan is probably a
    classic example--if he goes by his military occupational
    specialty, he is a driver. And what does that mean? He
    technically probably wouldn't know much and probably wouldn't
    be doing much as part of the battle, if you will, or the war,
    and yet it turns out he happens to be the driver for bin Laden.
    He happens to be a guy who moves weapons. He happens to be a
    guy who I think runs money as well. He does many, many things.
        You cannot conduct this fight without doing interrogations
    of these folks, but you can't separate the nonactors from the
    actors in this. You have got to be able to talk to all of them,
    and you have got to do it, as Mr. Bradbury says, right now
    because that little gem of intelligence that guy may have about
    a cell phone number, about a safe house location, may lead you
    to a very, very significant find or very, very significant
    target.
        And so we have from the earliest days said our goal is to
    get intelligence from these folks. If we can prosecute them
    down the road and they have committed sufficiently serious acts
    to warrant prosecution, we will do that. But we are going to
    have to do everything we can to grab intelligence from them
    because this is a different type of war and the intelligence
    gathering is absolutely critical.
        Mr. Saxton. Mr. Chairman, if I could just suggest one of
    the things that we might want to do as a committee before we
    make any decisions on how to proceed is to have a session
    similar to this in a closed session. I think if some of the
    members who maybe haven't had the opportunities that I have to
    view and understand, and maybe a lot of our members have, but
    for those who haven't had an opportunity to really sit down and
    look in detail at individual cases, this becomes an even more
    important subject to the national security of this country. And
    so if I may just make that suggestion.
        The Chairman. Let me say to my colleague from New Jersey, I
    think that is a great recommendation and let's do it.
        Let me, if I could, just impose on my colleagues with the
    last question you asked because I think it is not entirely
    clear to me. Is the panel saying that if this person that you
    pick up in combat operations, in being interrogated says, yes,
    I'm a bomb maker, and I made the bomb that blew up the such and
    such, and you extract that information pursuant to your
    battlefield interrogation or shortly thereafter, that under the
    UCMJ that would not be admissible in a later prosecution?
        Mr. Dell'Orto. Mr. Chairman, my argument as a defense
    counsel would be the following: When you picked him up, you,
    the soldier, the specialist, the corporal, the sergeant grabbed
    him by the scruff of the collar and took him into captivity,
    you had an idea who this guy was. You knew he was a bad guy;
    you knew he was an unlawful combatant. You knew based upon the
    intelligence going in you were likely to find somebody of this
    character. And he told you he was a bomb maker.
        Now you asked him about that; you asked him who he was. You
    asked him what his job was. I would argue that you as a soldier
    because you are subject to the code were obligated upon
    suspicion this guy was an unlawful combatant generally,
    regardless of what that might be, that you are obligated to
    advise him under his rights under article 31 of the Uniform
    Code of Military Justice.
        The Chairman. Because he at that point has become the focus
    of suspicion of criminal activity.
        Mr. Dell'Orto. Again, if you want to carry this to the
    extreme, as I would as a defense counsel, I would argue any one
    of these guys because they are all unlawful combatants. We have
    yet to find on the battlefield in Afghanistan a lawful
    combatant. They are in theory all guilty of unlawful
    belligerency which would trigger the obligation to advise them
    of their rights, in my opinion.
        The Chairman. I think Mr. Hutson may have a comment.
        Admiral Hutson. Thank you, sir.
        The Chairman. Let me just ask, and I want you to go first,
    is it the position of any of you that that should--that should
    a person give an admission like that, I'm a bomb maker, upon a
    battlefield interrogation, if you will, that that should not be
    admissible in a later prosecution.
        Go ahead, Mr. Hutson.
        Admiral Hutson. Thank you. If you were to superimpose UCMJ
    in total precisely as it is right now, that would be the
    unfortunate result. What I am suggesting though is that you
    modify it in such a way so that that would not be the result
    because I don't think any of us would find that to be
    acceptable.
        The Chairman. Okay. So nobody recommends that.
        The gentleman from New York, Mr. Israel.
        Mr. Israel. Thank you, Mr. Chairman.
        Mr. Chairman, much to my mother's shame I never went to law
    school. I am not an attorney, which puts me at a decided
    disadvantage from a legal perspective, but it also gives me, I
    think, the advantage sometimes relying on common sense to sift
    through some of these complicated issues.
        While I am not a lawyer, I am a student of history, and one
    of the things that concerns me in this debate is repeated
    references to the fact that we need to understand that there
    are enemies that we have and adversaries and threats to the
    security of the state and threats to our national security
    interests. We all understand that, and all of us on this
    committee are strongly supportive of an aggressive military
    response to those enemies, but the fact of the matter is that
    every single repeal or diminishing of essential legal and human
    civil rights in history has always been based on the argument
    that there are enemies of the state.
        The whole experience of national socialists was to build
    new courts, peoples' courts, special courts, military courts
    based on the argument that there are enemies of the state,
    there are enemies within, and we have to protect ourselves from
    those enemies.
        I am not arguing that our legal process echoes their legal
    process, but we have in our own experience and in this very
    hearing alluded to legal decisions made in our government that
    protected the interests of the state against adversaries at the
    expense of basic rights.
        Japanese Americans were interred and detained. General
    Grant expelled entire populations from Tennessee based on the
    concern of national security. Rights were impinged upon in the
    1950's based on threats of Communism.
        These decisions to reduce, repeal, diminish rights have
    never been made based in a vacuum. They have always been made
    based on the national security argument, which is why I think
    we have to be very careful in the rhetoric that we use.
        One of the concerns that I have, Mr. Dell'Orto, which Mr.
    Snyder has already raised is the suggestion that is anyone in
    fact supporting Miranda rights after a Marine kicks in the
    door, as you said; whether anybody is suggesting that the legal
    process has to allow for fingerprinting and the traditional
    evidence gathering that we experience in our own civilian
    justice system.
        So my question, Mr. Dell'Orto, is, who is making these
    proposals? Where have you heard any Member of Congress
    suggesting that we need to offer Miranda rights to someone
    after we kick in a door in Afghanistan or Iraq or elsewhere?
        Mr. Dell'Orto. Congressman, I am not suggesting that any
    Member of Congress has suggested that. What I am suggesting is
    that to the extent that some have said that the court martial
    process is, as currently configured, is the preferred method of
    dealing with the trials of unlawful combatants, that that is a
    model that we should follow without change I think is the
    problem that I suggest exists. So I am not attributing that to
    any individual. I will say no specific individual.
        I have heard, and no member of this body that I have heard,
    but I have heard some say and I think it may have been--I
    forget which congressman earlier mentioned the argument that
    the defense counsel for Hamdan made at the Supreme Court, that
    the court martial system is the way to go, that he should be
    tried by a court martial. That is ludicrous.
        Now here is the question. If we do agree that such things
    as Miranda rights, such things as very well-defined rules of
    evidence that require chain of custody, that require all these
    things that we know from our courts, from CSI Miami, from
    anything we read in the paper on any given day, if we think
    that there needs to be modification, then how do we get there.
        Mr. Israel. I am sorry, my time is expiring. That is the
    second question I wanted to raise. I have heard different
    panelists talk about modifications, but it seems that we are
    talking in opposite directions but kind of agreeing on the same
    thing. Mr. Bradbury suggested that we not use the UCMJ in whole
    cloth, but that is not what Admiral Hutson is suggesting. In
    fact, his testimony said that specifically this is not to say,
    however, that the court martial system that is contained in the
    UCMJ and MCM couldn't or shouldn't be modified in some narrow
    and specific ways. What I am trying to figure out is, why are
    you both saying opposite things but agreeing on what has to be
    done at the end of the day?
        Mr. Bradbury. Let me say, Congressman, that that is where
    we are today. Because of the Supreme Court's decision in
    Hamdan, the military commission process is dead in the water.
    We cannot move forward according to the court's judgment unless
    the President uses the Uniform Code of Military Justice and the
    court martial process. That is what the court said.
        So that is where we are. And the court said, because it
    read the statutes of the Uniform Code to require uniformity,
    the President has to justify any variation and the court wasn't
    convinced with the justification the President offered. So
    where we are today is we are stuck using the Uniform Code
    unless we can justify variations or unless this Congress sets
    out rules and procedures that allow us to vary from it.
        There may be agreement, and it sounds like there may be on
    some fundamental points so we can move forward very quickly
    with legislation which is terrific, but as of right now, the
    court has said the President has to use the Uniform Code of
    Military Justice. That is why we are using that as the thing we
    need to talk about, because we need to justify those
    variations.
        Mr. Dell'Orto. My point is, do we take away provision after
    provision from the Uniform Code of Military Justice and the
    Manual of Courts Martial to get to that medium, wherever it is?
    Or do we take the existing process the President has already
    proposed and say either the way it is right now or with minor
    tweaking there you can get to that result faster and easier.
    And that is all I am saying.
        I do have a concern though if we start from the former,
    that is dismantling the UCMJ or revising it, we will then be
    disrupting that particular process, which again has a very,
    very important history, a very important function with respect
    to our own service members, and I would hate for us to build a
    body of law based upon the UCMJ that then starts to cause
    difficulties in the application of that system with respect to
    our own service members.
        The Chairman. Thank the gentleman. The gentleman from
    Michigan, Dr. Schwarz.
        Dr. Schwarz. Just as an aside, I was raised on Fort Custer,
    Michigan, Mr. Dell'Orto, during World War II, where 6,000
    German prisoners, mostly Afrika Korps, were housed, and had
    very close contact with them because my father, a lieutenant
    colonel in the Army Medical Corps was fluent in German and was
    called frequently to deal with medical problems that they might
    have, and then in another life, one of my jobs among many jobs
    in my second tour of duty in Vietnam was to take prisoners that
    were held by the South Vietnamese, North Vietnamese, Viet Cong,
    get them out of the hell hole prisons that the South Vietnamese
    had into American custody where they were treated exceptionally
    and sometimes, if they were of no value to us, simply released,
    as we have done with, I believe, 250 of the detainees in
    Guantanamo.
        That said, I can't ask a question of high nuance about the
    law; I am not an attorney. Very simply, to get to the lowest
    common denominator of this hearing this morning, my belief is
    that this learned panel of attorneys would say that it is the
    job of the Congress as the result of the Hamdan decision to
    pass legislation which sets up a body or bodies to deal with
    the non-national actor detainees that the United States might
    take in any conflict that we find ourselves now or the future
    in the Global War on Terror. Is that an appropriate and correct
    premise?
        Admiral Hutson. Absolutely, yes, sir.
        Dr. Schwarz. That is what the Congress should do. That is
    the Congress's job. That is what the court is telling us very
    clearly in Hamdan.
        Admiral Hutson. I think the court is saying that this for
    too long has been a discussion between the executive and the
    judiciary, and it needs to have Congress right smack in the
    middle of it.
        Dr. Schwarz. Thank you very much because that is what I get
    out of it as well, and I think it is very simple. That is the
    lowest common denominator. That is where the rubber meets the
    road. That is what we should do. And I have no further
    questions. I would just say to Mr. Bradbury, Go Blue, and to
    Admiral Hutson, Go Green. Michigan and Michigan State.
        Thank you, Mr. Chairman. I yield back.
        Mr. Bradley [presiding]. Mr. Larsen is next.
        Mr. Larsen. Mr. Chairman, because I think the committee
    would benefit from someone known as Judge rather than Rick, I
    would like to yield my time to Mr. Butterfield of North
    Carolina.
        Mr. Butterfield. Thank the gentleman for yielding and thank
    the four of you for your testimony today. This is certainly an
    important case, and it is one that we need to resolve very
    quickly. I have taken the time to read the Hamdan decision. It
    is 73 pages long. I have read it multiple times. We were out
    last week, and I had some free time. And I took my time and
    read the decision and the dissenting and concurring opinions.
        Even though, at first blush, the opinion may appear to be
    very complicated, when you filter through all of the
    discussion, it is really a very simple case, and so I agree
    with Admiral Hutson that this should be easy. The whole world
    is watching us.
        I was in Europe last week with 200 or 300 parliamentarians
    from the European Union, and I can assure you, they have great
    interest in this case, and they are watching very closely to
    see if we administer justice fairly to these individuals who
    have been detained.
        You know, the Uniform Code of Military Justice is a very
    comprehensive piece of rules. I think it is something that we
    can certainly use, probably not completely, but we can
    certainly use the UCMJ as a template to begin developing the
    rules of procedure for these types of cases.
        Let me start off by asking the representative from the
    Department of Justice, Mr. Bradbury, what is your definition of
    a regularly constituted court. There is a lot of discussion in
    the opinion about that. What do you consider to be regularly
    constituted?
        Mr. Bradbury. Well, I don't know that there is a settled
    international interpretation of that phrase. I think, in the
    court's opinions, there seem to be a coalescing of view that if
    it is set up by statute, it is regularly constituted. So I
    think it was our view that the recognition and preservation of
    jurisdiction for military commissions that already is in the
    Uniform Code and that we think was implicitly in the
    authorization for the use of military force made them regularly
    constituted. The court didn't see it that way, at least not in
    the form the President set it up. But I think anything this
    body sets up by statute or recognizes by statute here will be
    by definition regularly constituted for purposes of common
    article 3.
        Mr. Butterfield. The Supreme Court also talked about the
    judicial guarantees that are recognized as indispensable by
    civilized peoples. Can you give me a brief interpretation of
    that?
        Mr. Bradbury. Well, it was not a majority of the court that
    addressed that issue, it was Justice Stephens in his--the
    portion of his opinion that was only a plurality for four
    justices. In that portion of his opinion, he went off and
    looked at other provisions of treaty law that have not been
    ratified by the United States to tried to pull out of those
    concepts of customary international law.
        But Justice Kennedy did not see a need to join that part of
    the opinion. So I don't think we have an opinion from the court
    on what that phrase means.
        Mr. Butterfield. What do you think it means?
        Mr. Bradbury. I will have confidence--it really I think
    just refers to procedures that ensure fundamental fairness
    measured against standards not of the U.S. article 3 courts in
    criminal prosecutions or even the UCMJ which is even more
    protective but looking at what nations around the world view as
    indispensable. I think there is a minimum common denominator. I
    have full confidence that any set of procedures that Congress
    adopts or ratifies by legislation will satisfy that standard. I
    will also say that I firmly believe that the procedures that
    have been used and set forth in the military commission process
    that the Secretary of Defense designed also satisfies that
    standard.
        Mr. Butterfield. There was also some discussion in the
    opinion about the crime of conspiracy not being triable by a
    commission. What does that do to our military if we cannot in
    the future try conspirators in the commission?
        Mr. Bradbury. Again, Congressman, that also was a portion
    of Justice Stephens' opinion, which was only a plurality.
    Justice Kennedy did not join that part, that was part 5 of
    Justice Stephens' opinion. That was only a plurality of four in
    which he concluded that conspiracy was not a charge available
    under the laws of war. I think Justice Thomas did a very good
    job in his dissenting opinion in explaining why that is not the
    case; that in fact conspiracy is a recognized charge that can
    be brought under the laws of war, and of course, in this
    conflict, we are going to have a very difficult time convicting
    many of these folks of war crimes if we cannot convict them on
    the basis of conspiracy because this is an international
    conspiracy, al Qaeda, and many of them have joined that
    conspiracy and actively furthered it through overt acts that
    they may not have--obviously, they weren't in the plane that
    flew into the World Trade Center on 9/11.
        Mr. Butterfield. Looks like we have run out of time. Let me
    just conclude by asking you this: Do you contend that
    commission order number 1 is sufficient to comply with the
    Supreme Court holding if we were to approve that?
        Mr. Bradbury. We think if Congress in its judgment approved
    it, the Court would respect that, and it would be sufficient to
    comply. I am not suggesting Congress just rubber stamp. I think
    when you look at it and look at all these issues we have talked
    about, it is open to you to come to the conclusion that each of
    the procedures that the President and the Secretary of Defense
    settled on in military commission order number 1 satisfies the
    standards and that you are comfortable with that, and if you
    were to do that, I believe backed up by statute and Congress,
    that would be upheld by the court.
        Mr. Butterfield. Thank you.
        Mr. Udall. Mr. Chairman, I have a unanimous consent request
    that I be allowed to include a statement in the record of this
    hearing.
        [The prepared statement of Mr. Udall can be found in the
    Appendix on page 98.]
        Mr. Bradley. Without objection.
        Mr. Udall. Thank you, Mr. Chairman.
        Mr. Bradley. Since we are pushing up against a vote, I am
    going to yield my time and recognize, I believe, next Mr. Ryan.
        Mr. Ryan. Thank you, Mr. Chairman. I want to thank the
    panel, too. I think this has been a really helpful discussion
    for us, and I know the work unfortunately or fortunately is
    just beginning here. So we are going to certainly rely on you
    in the future.
        I think hearing the discussion today, Mr. Chairman, that we
    have a great opportunity here and as the Admiral has stated, an
    opportunity to highlight what is best about the United States
    and why we are different.
        One of the questions I did have to the Admiral is, as we
    are talking about the intelligence-gathering proposition, the
    other panelists have said this somehow could be impeded by some
    of the changes. How do we ensure that we can protect these
    rights that civilized societies may agree upon but at the same
    time gather and get the information we need?
        Admiral Hutson. I think with careful draftsmanship you will
    be able to draw a distinction between the purposes and also, in
    answer to the earlier dialogue about the battlefield kinds of
    statements, permit them in. In my mind, there is a big
    difference between what goes on in the hootch, in the
    battlefield, and what goes on at Guantanamo.
        Where you have taken them off the battlefield, you have got
    some time. They are no longer an immediate threat. All you are
    looking for is information. You are not protecting yourself
    personally or protecting your fellow soldiers.
        You create a regime by which--because I agree, intelligence
    is important. Valuable, usable intelligence is important. You
    create a regime by which that is derived and then you deal with
    the military commission aspects.
        Mr. Ryan. So you are not saying, as we pull someone off the
    battlefield in Afghanistan or in Iraq, that immediately we are
    going to have--they are going to have to have counsel?
        Admiral Hutson. No.
        Mr. Ryan. You are saying that weeks, possibly months later,
    they get back to Guantanamo--do you gentlemen disagree with
    that? This is kind of where I am unclear of what, Mr. Bradbury,
    may be your position or the Administration's position would be.
    If we are not saying that that person needs legal counsel
    immediately, isn't that plenty of time to gather any immediate
    information, the cell phones, the locations, the safe houses,
    those kinds of things. Couldn't we get that information in the
    first couple of weeks?
        Mr. Bradbury. I don't think we should impose that kind of
    arbitrary limitation on our ability to get intelligence
    information. It is our view that you could transfer the person
    back to GTMO, continue to interrogate the person. You do not
    need to provide counsel if you haven't charged them; for
    military commission purposes, if you have charged them--and you
    shouldn't have to charge them with a crime within some
    artificially short period of time such as you do under speedy
    trial rules.
        I think, under the existing UCMJ framework, as I think
    every one on the panel agreed, you would have to provide them
    with counsel at the first point where you suspect that they may
    have----
        Mr. Ryan. We are not just going to take UCMJ and plop it
    in; we are going to modify it. I guess what I am saying is, how
    long? that is really the question here.
        Mr. Bradbury. It would be our view, again, that if you look
    to, for example, the kind of timing concepts that are used in
    the international criminal tribunals, criminal trials in those
    contexts are to be brought without undue delay, or phrases like
    that, which allow for flexibility. But I don't think you should
    say within two weeks, within two months, within a fixed number
    of days you have to charge the person with the criminal charges
    and provide counsel and then cut off intelligence gathering at
    that point. I don't think that makes sense.
        Mr. Ryan. Isn't there a point where if we have someone for
    five years or two years, that we have gotten all we can get out
    of them?
        Mr. Bradbury. Well, sure. But keep in mind that these are
    combatants who, under the laws of war, we have every right to
    hold during the ongoing hostility so we may have them for a
    long period of time, and we have had the folks at GTMO for a
    considerable period of time. And if they have ongoing
    intelligence value, we should be able to take advantage of
    that. And if we have a case to be made that they have committed
    serious war crimes, we should be able to charge them and move
    forward with those prosecutions.
        We should be able to try the 60, 80 or 100 people at GTMO
    who we believe should be charged with war crimes and tried. We
    should be able to try them under whatever rules Congress now
    sets up even though they have been held now for some years.
        Mr. Bradley. Mr. Ryan, I am trying to get everybody to have
    their five minutes.
        Mr. Ryan. Will we have another round?
        Mr. Bradley. Hopefully not. We will have many more rounds,
    but I hope not today. I think we need to let the witnesses go
    on.
        Mrs. Davis.
        Ms. Davis of California. Thank you, Chairman, and thank you
    all for being here. I wonder if we can go back a bit. I think
    the role of Congress and oversight responsibility in the time
    of war and oversight over the law of war is very important, and
    obviously, the courts looked at that, and I wonder if you could
    comment some. Is it fair to say that we have lost a number of
    years, perhaps even five in total in trying to--well, during
    this kind of imbalance really, I think, between the executive,
    the judiciary and the legislative branches. I am interested
    really in knowing whether you feel there was a time at which
    Congress could have much more appropriately stepped in or
    obviously the executive branch could have come to the Congress?
    And how you see that role?
        And I wonder, Admiral Hutson, if you could elaborate a bit
    on what you think the court gave the Congress as a charge in
    balancing executive power.
        Admiral Hutson. Thank you. I think the court put it
    squarely in your lap. It would have perhaps been helpful in
    hindsight and retrospect if Congress had acted more quickly in
    this area or if the executive had come to Congress and said, we
    need help, but that didn't happen. And to quote a popular
    phrase these days, we are where we are.
        So the only thing we can do is move forward. I think
    Congress needs to move forward quickly but deliberately on this
    because it is an important issue. But I think it is completely
    now, constitutionally and by the Hamdan decision, in your ball
    park.
        Ms. Davis of California. Anybody else want to comment on
    that specifically? No.
        Mr. Bradbury. I guess I would just say, when the
    Administration set up the military commission process back in
    2001 it certainly intended to move forward with it quickly and
    hoped that that would be the case. And for a variety of
    reasons, it hasn't been, and court intervention has been part
    of that, and I agree, we are where we are.
        Certainly, Congress does have authority to define and
    punish violations, crimes against the law of nations, and we
    are here to work with Congress now so that we can get this
    process moving forward again.
        Ms. Davis of California. Given that we might tweak the
    military Commission Order Number 1 of the President or move to
    what would be a sizeable modification I think on the Uniform
    Code of Military Justice, what kind of other external controls
    do you think would be important? Is there something else that,
    from an appeals point of view, that the Congress ought to be
    looking at, whether I think suggestions that a tribunal would
    be subject to the supervisory authority of the Court of Appeals
    for the Armed Forces; is that an appropriate direction that the
    Congress should be taking to consider that?
        Mr. Bradbury. Well, I guess I would say, Congresswoman,
    that Congress in some sense has decided this issue in the
    Detainee Treatment Act where Congress set up a process for
    judicial review on appeal of military commission judgments.
    Final judgments of conviction of military convictions can be
    appeal to the U.S. Court of Appeals for the D.C. Circuit and
    ultimately if necessary by certiori to the Supreme Court. One
    approach would be to keep that structure of appeal and judicial
    review in place. I think an important part of that would be, as
    Mr. Olson suggested, ensuring this time around through I guess
    it would have to be ironclad language in your statute that all
    the other collateral habeas litigation does not move forward.
    But this is the exclusive avenue for judicial review of the
    military commission process.
        Again, judicial review of military commission proceedings
    is a historic, new development. I mean, historically, there has
    not been that, and so--but I think the DTA sets up a process.
        Ms. Davis of California. Do you see any impact of Hamdan on
    the detainee act? Should it be changed in any way as a result
    of the Hamdan case?
        Mr. Bradbury. Certainly, one way is I think what Mr. Olson
    suggested and what I just suggested; I think the court read the
    provisions in the Detainee Treatment Act which I think were
    clearly intended by Congress to cut off jurisdiction for all
    pending habeas litigation and other litigation challenging the
    detention of these enemy combatants other than the one avenue
    for appeal to the D.C. Circuit that Congress intended to set
    up, but the court read that--the court just got right around
    that. And I think that you need to look at that again because I
    think that litigation needs to be shut off, and you need to
    control the review through one manageable channel of review.
        Ms. Davis of California. Thank you, Mr. Chairman. I see my
    time is up.
        Mr. Bradley. Mr. Cooper.
        Mr. Cooper. Thank you, Mr. Chairman. I appreciate the
    patience of the witnesses and also the tremendous personal
    sacrifice that Mr. Olson in particular has already suffered in
    the war on terror.
        The Constitution says in article 1, section 8, that
    Congress shall set rules of capture on land and sea. I would
    like to ask the witnesses what they think that phrase means.
        Admiral Hutson. Precisely what it says.
        Mr. Cooper. Others?
        Mr. Bradbury. Well, I don't think it has been actually
    fully developed. I think there are few sources on what it
    means.
        Mr. Cooper. I asked what you thought it meant.
        Mr. Bradbury. I do think that it provides some authority
    for dealing with the captures in the war on terror. There is a
    view that it is limited to seizing of property and ships at
    sea, that kind of capture. Ultimately, I don't know if that
    view is sustainable, but I will say, Congressman, that never in
    the history of the country has Congress entered into the areas
    where we are now contemplating providing rules by legislation.
    These have been areas traditionally left up to the executive in
    time of war so we need to proceed extremely cautiously in these
    areas.
        Mr. Cooper. Not everything in life has a precedent. There
    was, however, a very powerful precedent in Youngstown Steel.
    Justice Jackson is widely quoted as saying the President's
    wartime power is at its zenith when he has gotten even the
    concurrence or consultation of Congress.
        This is an ironic age that we are in because although we
    have a Republican White House and a Republican Congress, there
    has been remarkably little consultation. The Hamdan decision
    might not have ever occurred if there had been prior
    consultation. As you point out, now we will be consulting with
    each other.
        But it is not only this case of the President's wartime
    powers. Senator Graham was particularly forceful on this
    yesterday. There are so many areas that the White House has
    simply not conferred with Congress, a Republican Congress, on
    war powers.
        So can I ask what your thinking is on why the White House
    has refused to confer? Because doesn't the White House want its
    wartime powers to be at their zenith?
        Mr. Bradbury. Well, Congressman, in the Hamdan case, it was
    the position of the United States in that case that the
    provisions of the UCMJ and the authorization for the use of
    military force that Congress passed in the wake of 9/11 did
    provide positive and affirmative support for the President's
    military commission process. So it was the position that we in
    fact had the support of Congress in that case. I think the
    court may view that differently.
        I will say that obviously I can't comment on the full range
    of issues that you raised by your question, but I think the
    President has endeavored to keep Congress informed through the
    traditional channels; for example, through briefings and
    notification to the relevant committees with respect to
    different activity, certainly this committee, on wartime
    activities.
        Mr. Cooper. Mr. Bradbury, the Republican chairman of the
    House Intelligence Committee released a letter last week saying
    he had not been properly informed as the chairman of the House
    Intelligence Committee.
        You were quoted in the newspaper yesterday as saying the
    President is always right. And I hope that is a misquote
    because I have never met an infallible human being yet.
        Mr. Bradbury. Neither have I, Congressman. I am glad you
    brought that up. I guess that shows I shouldn't try to be
    humorous when I am testifying. That was a tongue-in-cheek
    comment. Nobody is always right, and I certainly didn't mean to
    say that other than in humor.
        Mr. Cooper. Let me move on since the time is so short. The
    sovereignty issue with Guantanamo, who is the sovereign power
    in Guantanamo?
        Mr. Olson, you stressed that in your comments.
        Mr. Olson. The agreement between the government of Cuba and
    the United States makes it absolutely clear and no court so far
    has disturbed that conclusion that the sovereignty remains with
    Cuba. There are limitations on what the United States may do
    there to commercial and other----
        Mr. Cooper. Are you saying that Cuban law controls in
    Guantanamo?
        Mr. Olson. No, and I should allow the government lawyers to
    answer that question because I am no longer representing the
    government, but the agreement with respect to that makes it
    clear that with respect to that area, like in many other
    agreements throughout the world, U.S. law may appropriately
    govern property that is in the custody of the United States,
    although sovereignty remains----
        Mr. Cooper. U.S. law doesn't apply, Cuban law applies. What
    law does apply there?
        Mr. Olson. Again, I want to defer to my colleagues
    representing the Administration.
        Mr. Cooper. But you stressed this point very strongly in
    your testimony. Whose law applies?
        Mr. Olson. There is an area where the Commander-in-Chief
    has responsibility to determine battle place decisions, who
    fires a gun, where the troops will go, and so forth. And under
    those circumstances the Constitution quite properly allocated
    that responsibility to the President.
        Mr. Bradley. Mr. Cooper, I want to give Ms. Bordallo a
    chance to ask her questions, too.
        Thank you. Ms. Bordallo.
        Ms. Bordallo. Thank you very much, Mr. Chairman, and thank
    you to the panel. This certainly is a very critical concern.
        I have just one question. I had a couple of questions. But
    in light of the Hamdan ruling of the Supreme Court and the
    memorandum issued by Secretary England concerning the
    application of article 3 of the Geneva Conventions, could you
    foresee a situation in the future where our Nation would not
    adhere to article 3? And if so, what kind of situation would
    that be, and why would it justify once again disregarding the
    Geneva Conventions? That would be for you, Mr. Bradbury.
        Mr. Bradbury. Thank you, Congresswoman. We have not
    disregarded the Geneva Conventions. We brought a good faith
    interpretation of the Geneva Conventions. And again, the court
    has not said that al Qaeda detainees are prisoners of war
    subject to all of the rules and privileges of the Geneva
    Conventions. The court simply construed one article of the
    Geneva Conventions, common article 3, and said, contrary to the
    President's determination, this in fact is not an international
    conflict because it is not between nations, and therefore
    common article 3 applies in our war on terror. That is, we
    believe, quite a dramatic concept because I don't think the
    drafters of Geneva in drafting that provision intended to cover
    or even anticipated conflicts between nations like the United
    States and international terrorist organizations. But be that
    as it may, the court said that applies.
        Now that brings with it a number of standards, substantive
    standards, and some procedural requirements. And as I said in
    my testimony, most of the substantive standards are quite
    clear, and we can all agree that they are condemnable conduct;
    they are in fact the kind of crimes against humanity that al
    Qaeda commits. There are some very vague phrases such as
    humiliating and degrading treatment. These are the kinds of
    phrases that in past treaties and recent treaties like the
    Convention Against Torture and the International Convention For
    Civil and Political Rights have caused the United States to
    take reservations to those treaties, carefully defining those
    phrases by reference to U.S. constitutional law so we can all
    be sure it is based on a U.S. understanding of the proper
    standards and not international understandings, which may be
    different from ours and may evolve.
        We don't have such a reservation to common article 3
    currently, and so the meaning of that phrase, those phrases,
    which are quite vague, will be uncertain and will be subject to
    interpretations by foreign and international tribunals and
    other governments, and they have been applied, in certain
    respects, in ways that are quite reasonable. In other respects,
    they have been applied in very broad ways, which might condemn
    the kinds of conditions that are in U.S. prisons for example.
    And we need to be very careful because now as a result of the
    court's opinion a violation of those standards suddenly is a
    war crime under title 18 of the U.S. code. So it puts at risk
    all of the U.S. personnel handling it.
        We think Congress can act by statute to bring definition
    and certainty to the meaning of common article 3 and implement
    it for the United States. We think that is consistent with our
    treaty obligations, and it can make those terms certain, and we
    think that is very important as we move forward.
        Ms. Bordallo. If these changes are made then the situation
    perhaps would not occur again, is this what you are saying?
        Mr. Bradbury. We think we can address that, that the
    Congress can address those risks through legislation.
        Ms. Bordallo. Thank you, Mr. Chairman, for the opportunity
    to ask my question.
        Mr. Bradbury. Thank you. We have gotten to the end of our
    witnesses and seeing we are down below ten minutes in the vote,
    I am going to yield to the Chairman for just a moment.
        The Chairman. I want to thank you the gentleman from New
    Hampshire for running this hearing so effectively here while I
    was gone.
        Gentlemen, I would like to thank you for being with us, but
    also ask you if you want to make any recommendations as to the
    substance of the structure or anything elsewhere you think we
    would be--that you have some advice for us, without objection,
    we will leave the record open. And please make any further
    recommendations you would like to make to us on how we
    construct this new body of law. I think we are going to be
    acting, and whether we get this in time to package it with the
    conference report working with the Senate or it comes in later,
    I think we definitely are acting. So it is going to be there.
    This has been I think very, very instructive. You have been
    most valuable in talking to us today. Thank you very much. As
    you can see, we had full attendance, lots of people with lots
    of great questions, and your testimony was very, very good.
    Really appreciate it. Thank you.
        Admiral Hutson. Thank you, Mr. Chairman.
        Mr. Bradley. Thank you, all of the witnesses, and I get the
    responsibility of adjourning the hearing.
        [Whereupon, at 12:44 p.m., the committee was adjourned.]

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                                A P P E N D I X

                                 July 12, 2006

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                  PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                                 July 12, 2006

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                       DOCUMENTS SUBMITTED FOR THE RECORD

                                 July 12, 2006

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                 QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD

                                 July 12, 2006
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                       QUESTIONS SUBMITTED BY MS. SANCHEZ

        Ms. Sanchez. I have a few questions about how we should approach
    the task of codifying our system for military commissions.
        Since the UCMJ delegates substantial rule-making power to the
    President, what aspects of commission procedures should we codify and
    what should be left to Presidential executive orders in the Manual for
    Courts-Martial? For example, if we decide to allow for exclusion of the
    accused in certain circumstances during presentation of classified
    evidence, should we codify the rule or leave it to executive rule-
    making?
        Second, in crafting a statute for commissions should we begin with
    the general court-martial model and deviate only where common sense
    dictates? Or should we outline an entirely distinct type of tribunal
    and specify minimum procedural safeguards, leaving the details to the
    president?
        Finally, if we enact a military-commissions statute, would it make
    sense to have a separate Manual for Military Commissions as the vehicle
    for Presidential rule-making? Would you expect that the implementing
    regulations would need to be that extensive?
        Mr. Bradbury. We believe that Congress struck the appropriate
    balance in the Military Commissions Act of 2006 (``MCA''), which enacts
    the Code of Military Commissions, modeled on the court-martial
    procedures of the Uniform Code of Military Justice (the ``UCMJ''), but
    adapted for use in the special context of military commission trials of
    alien unlawful enemy combatants. Dozens of articles of the UCMJ have
    relevance for military commissions and were appropriately relied on as
    the starting point for the MCA. At the same time, Congress recognized
    that the military commissions process for alien unlawful enemy
    combatants should be separate from the court-martial process that is
    used to try our own service members. The MCA thus reflects the relevant
    differences between the procedures appropriate for trying the men and
    women of our Armed Forces and those appropriate for trying unlawful
    alien enemy combatants.
        The MCA, like the UCMJ, provides that the procedures established in
    the MCA will be supplemented by additional rules and procedures.
    Similar to Article 36 of the UCMJ, section 949a provides that the
    Secretary of Defense, in consultation with the Attorney General, shall
    prescribe rules of law and evidence appropriate for military
    commissions, following those in courts-martial, where the Secretary of
    Defense considers such procedures practicable or consistent with
    military necessity. See 10 U.S.C. Sec. 949a(a). Consistent with that
    directive, the Department of Defense recently promulgated a new Manual
    for Military Commissions, which follows the Manual for Courts-Martial
    in many respects.
        Ms. Sanchez. One of the persistent criticisms of Military
    Commission Order Number 1 has been the lack of a meaningful appeals
    process for military-commission cases. What would you consider to be
    the most appropriate appeals process for military-commission cases: use
    of existing Article I courts, the ad hoc approach of limited review
    under the DTA, or some other alternative? Why?
        Mr. Bradbury. In the MCA, Congress has created a formal appeals
    process that parallels the appellate process under the UCMJ.
    Specifically, the MCA establishes a Court of Military Commission Review
    within the Department of Defense to hear appeals on questions of law.
    See 10 U.S.C. Sec. 950f(a). Convicted detainees have the right to
    further appeal their convictions to the U.S. Court of Appeals for the
    D.C. Circuit. Id. Sec. 950g(a). The Supreme Court may review decisions
    of the D.C. Circuit through petitions for certiorari. Id. Sec. 950g(d).
    We believe the MCA provides robust appellate review of decisions by
    military commissions.
        Ms. Sanchez. Common sense suggests that when war crimes trials are
    conducted in the course of an on-going war, we should reserve some
    discretion to deny the accused access in unusual cases, yet we want to
    ensure that the rules narrowly limit the circumstances of such denials
    and ensure that there are safeguards to mitigate the prejudice to the
    accused, such as unclassified summaries of the evidence, etc.
        With that in mind, I first would ask the panel to offer their
    opinion on whether, in theory, it is possible to have a fundamentally
    fair trial where an accused is excluded for portions of the trial? What
    about trials in absentia, where an accused voluntarily flees after
    arraignment--while that is different, doesn't the law assume that
    resulting verdicts can be fundamentally just, despite the absence of
    the accused?
        Second, since the Supreme Court ruled that Common Article 3 of the
    Geneva Conventions apply to our conflict with al Qaeda generally and
    the military commissions specifically, could we exclude the accused
    from selected portions of his trial consistent with Common Article 3's
    requirement for a tribunal ``affording all the judicial guarantees
    which are recognized as indispensable by civilized people''?
        Finally, military-commission prosecutors I have spoken with about
    this say that exclusion of the accused would be an unusual and
    extraordinary measure. What is the best way to preserve some rule for
    extraordinary exclusion, while protecting the rights of the accused?
    What procedural and substantive standards would you recommend? Is there
    any existing model?
        Mr. Bradbury. The MCA strikes an appropriate balance between the
    rights of the accused and interests of our national security. The new
    law grants the accused the right to be present for all trial
    proceedings. See 10 U.S.C. Sec. 949a(b)(1)(B); id. Sec. 949d(e).
    Moreover, the accused will have access to all the evidence admitted
    before the trier of fact. See id. Sec. 949a(b)(1)(A). At the same time,
    the MCA contains robust protections to ensure that the United States
    can prosecute captured alien unlawful enemy combatants without
    compromising highly sensitive intelligence sources and methods. See id.
    Sec. 949d(f). Accordingly, we believe that the MCA is consistent with
    Common Article 3's requirement of a tribunal ``affording all the
    judicial guarantees which are recognized as indispensable by civilized
    peoples,'' while also safeguarding our intelligence operations and
    personnel.
        Ms. Sanchez. The single rule of evidence in Military Commission
    Order No. 1 is that ``evidence shall be admitted if the evidence has
    probative value to a reasonable person.'' This standard is very similar
    to the rule of admissibility used by the International Criminal
    Tribunal for the Former Yugoslavia, which states: ``A chamber may admit
    any relevant evidence which it deems to have probative value.'' The
    International Criminal tribunal for Rwanda uses a nearly identical
    standard as well. In view of the similarity of these standards, there
    seems to be an international consensus that war crimes trials require a
    broader and more relaxed approach to admissibility of evidence.
        What additional rules regarding the admissibility or exclusion of
    evidence are essential to ensure reliable verdicts in military-
    commission cases? Do you believe that this standard--``probative value
    to a reasonable person'' is sufficient to exclude evidence derived from
    coercive interrogations? How would you fashion a rule of exclusion that
    prohibits admission of statements obtained through coercive
    interrogations?
        Mr. Bradbury. We agree that the evidentiary rules used in the
    International Criminal Tribunal for the Former Yugoslavia (``ICTY'')
    and the International Criminal Tribunal for Rwanda (``ICTR'')
    demonstrate the appropriateness of applying broad rules of
    admissibility in war crimes trials. Because military commissions must
    try crimes based on evidence collected everywhere from the battlefields
    of Afghanistan to foreign terrorist safe houses, we believe that
    Congress struck a sensible balance in enacting a Code of Military
    Commissions that provides for the introduction of all probative
    evidence, including hearsay evidence where such evidence is reliable.
    Of course, some evidence may be unreliable under the circumstances
    surrounding a particular case. We believe, however, that the
    reliability of a particular piece of evidence is best left to the
    considered judgment of the presiding military judge in the first
    instance.
        The Administration believes that it is neither possible nor prudent
    to draw a ``bright-line'' rule of exclusion for statements obtained via
    ``coercion.'' The United States does not engage in torture, an act that
    is prohibited by United States law and our international obligations.
    Consistent with these obligations, the MCA provides that statements
    obtained by torture shall not be admitted in a military commission
    proceeding. See 10 U.S.C. Sec. 948r(b). The MCA further provides that
    statements obtained in violation of the Detainee Treatment Act of 2005,
    which was enacted on December 30, 2005, shall not be admitted before a
    military commission. See id. Sec. 948r(d)(3). As for other statements
    arguably obtained through ``coercion,'' the MCA leaves the question of
    admissibility to the sound discretion and expertise of the military
    judge. Allegations of ``coercion'' are easy to make and often difficult
    to rebut, particularly in the context of an ongoing armed conflict.
    Accordingly, instead of attempting to fashion a universally applicable
    rule of exclusion for ``coerced'' statements, Congress has
    appropriately entrusted military judges with the authority to make
    context-specific determinations about whether a particular allegation
    of ``coercion'' is sufficiently well founded to vitiate the reliability
    of a given statement and whether the interests of justice favor the
    admission of the statement.
        Ms. Sanchez. What additional rules regarding admissibility or
    exclusion of evidence are essential to ensure reliable verdicts in
    military commission cases? And if it is commonly accepted that coerced
    admissions are not reliable and therefore lack probative value, do you
    believe that this standard, probative value to a reasonable person, is
    sufficient to exclude evidence derived from coerced confessions? And
    how would you fashion a rule of exclusion that prohibits admission of
    statements obtained through coercive confessions?
        Mr. Dell'Orto. The Military Commissions Act of 2006 lays out
    statutory framework for military commissions cases including
    evidentiary rules.
        On January 18, 2007, the Department of Defense submitted to
    Congress a Manual for Military Commissions consistent with the guidance
    provided in the Military Commissions Act, which includes specific rules
    of evidence.
        Ms. Sanchez. Those familiar with the history of American military
    justice are aware of the great evolution of military justice in the
    last half-century. Beginning with the enactment of the UCMJ in 1950 and
    continuing thereafter through changes to the Code itself and the Manual
    for Courts-Martial, modern American courts-martial have become very
    similar to, and in many ways superior to, civilian criminal courts. Yet
    there has been no similar evolution in the legal basis for military
    commissions, which have also been a long standing feature of American
    military justice. I believe we are now taking the first major steps in
    the evolution of military commissions, which I believe are an important
    part of our legal arsenal in the war on international terrorism. I have
    a few questions about how we should approach the task of codification.

         Since the UCMJ delegates substantial rule-making power to
    the President, what aspects of commission procedures should we codify
    and what should be left to Presidential executive orders in the Manual
    for Courts-Martial? We need to find the appropriate mix of statute and
    implementing regulations. For example, if we decide to allow for
    exclusion of the accused in certain circumstances during presentation
    of classified evidence, should we codify the rule or leave it to
    executive rule-making?

        Mr. Dell'Orto. Congress has passed and the President has signed
    into law the Military Commissions Act of 2006 (``MCA''). The Department
    of Defense believes that this legislation provides the appropriate
    approach, including the appropriate level of statutory codification.
        Ms. Sanchez. Second, in crafting a statute for commissions should
    we begin with the general court-martial model and deviate only where
    common sense dictates? Or should we outline an entirely distinct type
    of tribunal and specify minimum procedural safeguards, leaving the
    details to the president?
        Mr. Dell'Orto. Please see the previous answer.
        Ms. Sanchez. Finally, if we enact a military commissions statute,
    would it make sense to have a separate Manual for Military Commissions
    as the vehicle for Presidential rule-making? Would you expect that the
    implementing regulations would need to be that extensive?
        Mr. Dell'Orto. On January 18, 2007, the Department submitted to
    Congress a Manual for Military Commissions consistent with the guidance
    provided in the Military Commissions Act of 2006.
        Ms. Sanchez. One of the persistent criticisms of Military
    Commission Order Number 1 has been the lack of a meaningful appeals
    process for military commissions cases. The Detainee Treatment Act
    provides for review by a special panel of the DC Circuit Court of
    Appeals of cases that result in a sentence in excess of 10 years
    confinement. However, because military commissions are a species of
    military tribunals under the UCMJ, it would seem to make sense to give
    the Article I military appeals courts, with their expertise in military
    law, supervision of this aspect of military justice as well.

         What would you consider to be the most appropriate appeals
    process for military commissions cases: use of existing Article I
    courts, the ad hoc approach of limited review under the DTA, or some
    other alternative? Why?

        Mr. Dell'Orto. The Military Commissions Act of 2006 affords accused
    the opportunity to appeal military commissions decisions to the Court
    of Military Commission Review, the Court of Appeals for the District of
    Columbia Circuit and the Supreme Court of the United States. We believe
    that the Military Commissions Act of 2006 lays out the appropriate
    appeals process.
        Ms. Sanchez. The Supreme Court was critical of the military
    commission rule that permits exclusion of the accused from proceedings
    and denies him access to classified evidence. I believe that this rule
    was offered as one of the original justifications for military
    commissions in our current context. There has been much useful
    discussion here regarding the best way to protect classified
    information in the military commissions process. On the one hand, there
    are those who advocate using the usual rules in the Classified
    Information Procedure Act (CIPA) and Military Rule of Evidence 505,
    which apply in a regular court-martial. On the other hand, there are
    those who take the view that the commission should have the discretion
    to simply exclude the accused whenever classified evidence is
    presented, believing that the presence of his appointed defense counsel
    will mitigate any prejudice to the accused. I'd like to find a middle
    ground--common sense suggests that when war crimes trials are conducted
    in the course of an on-going war, we should reserve some discretion to
    deny the accused access in unusual cases, yet we want to ensure that
    the rules narrowly limit the circumstances of such denials and ensure
    that there are safeguards to mitigate the prejudice to the accused,
    such as unclassified summaries of the evidence, etc.
         With that in mind, I first would ask the panel to offer
    their opinion on whether, in theory, it is possible to have a
    fundamentally fair trial where an accused is excluded for portions of
    the trial? What about trials in absentia, where an accused voluntarily
    flees after arraignment--while that is different, doesn't the law
    assume that resulting verdicts can be fundamentally just, despite the
    absence of the accused?
        Mr. Dell'Orto. Yes, in principle by setting clear, defined
    limitations on when an accused can be excluded we may ensure a ``full
    and fair trial''. That said, the MCA does not permit the accused to be
    tried in absentia or through the introduction of classified evidence
    withheld from the accused. The new law grants the accused the right to
    be present for all trial proceedings (unless he engages in disruptive
    conduct warranting his exclusion). See 10 U.S.C. Sec. 949a(b)(1)(B);
    id. Sec. 949d(e). The accused will have access to all the evidence
    admitted before the trier of fact. See id. Sec. 949a(b)(1)(A).
        Ms. Sanchez. Second, since the Supreme Court ruled that Common
    Article 3 of the Geneva Conventions apply to our conflict with al Qaeda
    generally and the military commissions specifically, could we exclude
    the accused from selected portions of his trial consistent with Common
    Article 3's requirement for a tribunal ``affording all the judicial
    guarantees which are recognized as indispensable by civilized
    peoples''?
        Mr. Dell'Orto. Yes, by setting clear, defined limitations on when
    an accused can be excluded we can ensure a ``full and fair trial''. As
    explained in the previous answer, the MCA provides that the accused
    shall be present for all proceedings of a military commission (with
    certain narrow exceptions). See 10 U.S.C. Sec. 949d(b). The MCA further
    makes clear that, in the view of the United States, a military
    commission established under the MCA is ``a regularly constituted
    court, affording all the necessary `judicial guarantees which are
    recognized as indispensable by civilized peoples' for purposes of
    common Article 3 of the Geneva Conventions.'' Id. Sec. 948b(f).
        Ms. Sanchez. Finally, military commissions prosecutors I have
    spoken with about this say that exclusion of the accused would be an
    unusual and extraordinary measure. What is the best way to preserve
    some rule for extraordinary exclusion, while protecting the rights of
    the accused? What procedural and substantive standards would you
    recommend? Is there any existing model?
        Mr. Dell'Orto. The Military Commissions Act of 2006 includes
    provisions to protect classified information from disclosure if
    disclosure would be detrimental to the national security. The
    legislation requires that the accused will be present for all
    proceedings of a military commission (with certain narrow exceptions).
    See 10 U.S.C. Sec. 949d(b). The procedural and substantive standards
    included in the Military Commissions Act of 2006 appear to strike the
    proper balance between the need to protect classified information and
    the accused's right to a full and fair trial.
        Ms. Sanchez. I would like to zero in on the rules of evidence
    again. All of you, including Admiral Hutson, accept the view that
    different rules of evidence are required for war crimes cases. The
    usual reasons cited for this necessary deviation from the regular rules
    of evidence in courts-martial and Federal courts are related to the
    manner and circumstances in which war crimes evidence is gathered--by
    soldiers and intelligence agents, rather than police detectives trained
    in the collection and preservation of evidence for criminal trials.
    Consequently, the evidence in war crimes trials will likely include
    hearsay, evidence without a clear chain of custody, and interrogation
    products obtained without Miranda warnings and other safeguards against
    coercion. The single rule of evidence in Military Commission Order No.
    1 is that ``evidence shall be admitted if the evidence has probative
    value to a reasonable person.'' This standard is very similar to the
    rule of admissibility used by the International Criminal Tribunal for
    the Former Yugoslavia, which states: ``A chamber may admit any relevant
    evidence which it deems to have probative value.'' The International
    Criminal tribunal for Rwanda uses a nearly identical standard as well.
    In view of the similarity of these standards, there seems to be an
    international consensus that war crimes trials require a broader and
    more relaxed approach to admissibility of evidence.
         What additional rules regarding the admissibility or
    exclusion of evidence are essential to ensure reliable verdicts in
    military commissions cases?
        Mr. Dell'Orto. The Military Commissions Act of 2006 lays out a
    statutory framework for military commissions cases including
    evidentiary rules.
        On January 18, 2007, the Department submitted to Congress a Manual
    for Military Commissions consistent with the guidance provided in the
    Military Commissions Act which includes specific rules of evidence.
        Ms. Sanchez. It is commonly accepted that coerced admissions are
    not reliable and, therefore, lack probative value. So, do you believe
    that this standard--``probative value to a reasonable person''--is
    sufficient to exclude evidence derived from coercive interrogations?
    How would you fashion a rule of exclusion that prohibits admission of
    statements obtained through coercive interrogations?
        Mr. Dell'Orto. Coercion is a difficult legal concept to define and
    any interrogations by government officials are coercive to some degree.
    I do not agree that coerced admissions are per se unreliable and lack
    probative value. The MCA excludes statements obtained by torture, as
    that term is defined under United States law, and it further excludes
    statements obtained in violation of the Detainee Treatment Act
    (``DTA''), which was enacted on December 30, 2005. See 10 U.S.C.
    Sec. 948r(d). As for other statements obtained by measures that did not
    violate any United States statute, the MCA leaves the question of
    admissibility to the sound discretion and expertise of the military
    judge. Rather than trying to define ``coercion,'' Congress has
    appropriately entrusted military judges with the authority to make
    context-specific determinations about whether a particular statement
    appears to be reliable and whether the interests of justice would be
    served by admission of the statement. See id. Sec. 948r(c). I believe
    that the MCA fashions the appropriate rule regarding the admissibility
    of allegedly coerced statements.
                                     ______

                      QUESTIONS SUBMITTED BY MS. TAUSCHER
        Ms. Tauscher. Would you agree that the Congress, in drafting the
    UCMJ, made a reasoned and considered decision, informed in part by
    concerns about the procedures adopted and applied in the Yamashita
    case, that military commissions should adhere as closely as practicable
    to the rules of the UCMJ?
        Have any military commissions been established since the UCMJ was
    adopted that not track the rules of the UCMJ, aside from those
    currently proposed by the administration?
        Which agencies and officials of the U.S. government did the White
    House consult in advising the President on the issuance of his military
    order of November 13, 2001, establishing the present military
    commissions? Were senior officials from the Pentagon, including the
    uniformed military leadership and senior Judge Advocates General, the
    State Department and the National Security Council consulted? If not,
    why were those officials in the government with primary responsibility
    for national security and knowledge of U.S. military law and traditions
    excluded from the process?
        Mr. Bradbury. We believe that Congress made a reasoned decision to
    enact the Uniform Code of Military Justice (the ``UCMJ'') to codify the
    rules for courts-martial. As reflected in the position of the United
    States in the Hamdan litigation, we do not believe that the uniformity
    requirement of Article 36 was intended to require concordance between
    military commission procedures and court-martial procedures, but rather
    was designed to ensure uniformity among the court-martial rules
    promulgated by the various services. That said, a majority of the
    Supreme Court held to the contrary in Hamdan. The Military Commissions
    Act of 2006 (the ``MCA'') addresses the statutory limitations
    identified in Hamdan by establishing a new chapter of title 10 to
    govern trials of alien unlawful enemy combatants by military
    commission. The MCA tracks the UCMJ, but is adapted for use in the
    special context of military commission trials of alien unlawful enemy
    combatants and reflects the relevant differences between the procedures
    appropriate for trying the men and women of our Armed Forces and
    prisoners of war and those appropriate for trying alien unlawful enemy
    combatants.
        The President's November 13, 2001, order reflected advice received
    from policy and legal experts throughout the Administration. In
    proposing new military commissions legislation, the Administration
    engaged in extensive deliberations with all of the bodies that you have
    mentioned, including military lawyers, and in discussions with
    interested Members of Congress. Beyond that, it is not appropriate to
    discuss confidential and privileged advice provided by the Department
    of Justice or others in the Administration for the benefit of
    policymakers within the Executive Branch.
        With respect to the specifics of any military commissions that may
    have been convened after the codification of the UCMJ, we would refer
    you to the Department of Defense, which is in a better position to
    provide a response.
        Ms. Tauscher. You stated that intelligence and military operations
    might be compromised by application of the UCMJ, or a system of justice
    modeled after the UCMJ. Specifically, you warned that members of our
    armed forces would have to read Miranda rights to combatants captured
    on the battlefield, and that intelligence officers would not be able to
    carry out interrogations without first giving Miranda warnings and
    providing access to counsel. Isn't it true that, under the UCMJ,
    Miranda warnings and access to counsel are not required at the moment
    of capture or when interrogations are conducted for intelligence
    gathering purposes? Isn't it true that the UCMJ only requires Miranda
    warnings and access to counsel once someone has become a suspect for
    purposes of criminal prosecution?
        If so, why did you not mention this distinction in your testimony?
        Mr. Bradbury. The MCA makes clear that Article 31 of the UCMJ shall
    not apply, directly or indirectly, to the trial of alien unlawful enemy
    combatants by military commission. See 10 U.S.C. Sec. 948b(c) &
    (d)(1)(B). To answer your specific question, as I explained in my
    testimony, Article 31 of the UCMJ requires members of our Armed
    Services to provide Miranda-type warnings before questioning to any
    individual suspected of criminal wrongdoing, whenever that questioning
    may be deemed to be part of an official law enforcement investigation.
    That right is broader than the right afforded to criminal defendants in
    the civilian system and should not be applied to the questioning of
    captured terrorists. The Court of Military Appeals held in the Lonetree
    case that intelligence agents who were not members of our Armed Forces
    did not have to provide Article 31 warnings when conducting an
    interrogation wholly divorced from a military law enforcement
    investigation. See United States v. Lonetree, 35 M.J. 396, 405 (C.M.A.
    1992). But Article 31 may well apply to many situations in which
    members of our Armed Forces interrogate or interact with detainees
    suspected of having violated the law of war. Our military personnel
    should not be required to guess as to whether the situation they
    confront is sufficiently investigatory, nor should they be forced to
    choose between conducting effective interrogations and risking having
    confessions later deemed inadmissible. Congress appropriately
    determined in the MCA that Article 31 (a), (b), and (d) should not
    apply to military commission prosecutions.
        Ms. Tauscher. Isn't it true that the UCMJ has rules that protect
    against the disclosure of classified evidence?
        Don't those rules allow the government to substitute summaries of
    evidence or statements of facts that the classified evidence would
    prove to avoid the disclosure of classified evidence?
        Mr. Bradbury. The MCA strikes an appropriate balance between the
    rights of the accused and our national security interests. The new law
    grants the accused the right to be present for all trial proceedings.
    See 10 U.S.C. Sec. 949a(b)(1)(B); id. Sec. 949d(e). Moreover, the
    accused will have access to all the evidence admitted before the trier
    of fact. See id. Sec. 949a(b)(1)(A). At the same time, the MCA contains
    robust protections to ensure that the United States can prosecute
    captured alien unlawful enemy combatants without compromising highly
    sensitive intelligence sources and methods. See id. Sec. 949d(f).
        As you note, Military Rule of Evidence 505, which tracks the
    Classified Information Protection Act, provides procedures that allow
    the Government to seek judicial approval for the substitution of
    classified evidence with redacted or summarized evidence. Although some
    of those procedures parallel those in the MCA, they are not identical,
    reflecting the fact that military commission procedures are designed
    for the trials of unlawful enemy combatants--not the members of our
    Armed Forces--and that in contrast to courts-martial, military
    commission prosecutions are far more likely to concern evidence that
    either is classified or was derived from classified sources or methods.
        Ms. Tauscher. Isn't it true that the UCMJ includes exceptions to
    the prohibition on hearsay that include both an ``excited utterance''
    exception and ``present sense impressions'' exception?
        Wouldn't both those exceptions apply to statements made on the
    battlefield, and wouldn't those statements be admissible even under the
    current hearsay rules of the UCMJ? If not, please explain.
        Mr. Bradbury. The Military Rules of Evidence, tracking the rules in
    civilian courts, do contain hearsay exceptions for ``present sense
    impressions'' and ``excited utterances.'' See Mil. R. Evid. 803(1),
    (2). And those hearsay exceptions may apply to some statements made on
    the battlefield under certain circumstances. However, those two
    exceptions may well not apply in many instances, such as if the
    declarant provides a statement after leaving the battlefield and the
    immediacy of the situation surrounding it. See, e.g., United States v.
    Green, 50 M.J. 835, 840 (A. Ct. Crim. App. 1999) (holding that present-
    sense-impression exception does not apply to rape victim's statements
    made after she was questioned by her roommates); United States v.
    Jones, 30 M.J. 127, 129-30 (C.M.A. 1990) (holding that excited-
    utterance exception does not apply to statements made 12 hours after
    the event).
        Given the importance of gathering reliable evidence from alien
    unlawful enemy combatants both on and off the field of battle, the
    Administration believes that the hearsay rules under the Military Rules
    of Evidence are ill suited to military commissions. Many witnesses in
    military commission trials are likely to be foreign nationals who are
    not amenable to process. Other witnesses may be unavailable because of
    military necessity, incarceration, injury or death. The MCA adopts a
    broad rule of admissibility for hearsay, in a manner that is consistent
    with international tribunals. See 10 U.S.C. Sec. 949a(b)(2)(E)(i). For
    example, the international criminal tribunals for the former Yugoslavia
    and Rwanda permit the admission of any relevant evidence that the
    tribunal deems to have probative value, including hearsay evidence, as
    long as it is not substantially outweighed by the need for a fair
    trial.
        Ms. Tauscher. Is it not the policy of our military, as expressed in
    the current DOD Directive on its Law of War Program, to comply with the
    law of war (including Common Article 3) ``during all armed conflicts,
    however such conflicts are characterized, and in all other military
    operations?''
        Would you agree that the United States has applied the minimum
    standards of Common Article 3 in all of the wars it has fought since
    the ratification of the Geneva Conventions, including against irregular
    forces like the Viet Cong and warlords in Somalia?
        Please specify any and all examples of situations where these
    requirements of humane treatment were a detriment to our military's
    ability to fulfill its mission?
        Please specify examples of any and all interrogation techniques
    that you believe U.S. service members or contractors should be allowed
    to employ, but are prohibited by the humane treatment requirements of
    Common Article 3?
        If the meaning of humane treatment under Common Article 3 is Vague
    and not fully understood by military commanders, why was Deputy
    Secretary England able to state with confidence that current DOD
    practices and policies fully comply with its standard?
        You warned that the definition of the Common Article 3 is subject
    to constant reinterpretation by international bodies. Isn't it true
    that interpretations and rulings issued by foreign tribunals are not
    ever binding on the U.S.? And that therefore the U.S. is not, and would
    not, ever be obliged to adopt an international tribunal's definition of
    the Terms of Common Article 3?
        Does the Supreme Court's ruling that Common Article 3 applies to
    the treatment of all al Qaeda detainees in U.S. custody also apply to
    the treatment of al Qaeda detainees in the custody of other U.S.
    government agencies, including the CIA? If not, why not? If so, what
    steps are being taken to communicate this requirement to such agencies?
        Has any country in the world that is a party to the Geneva
    Conventions ever passed a law or promulgated a policy that denies the
    application of Common Article 3 to any detainee captured as part of an
    armed conflict?
        Mr. Bradbury. It has been and will continue to be the policy of the
    United States to comply with the law of war, including Common Article
    3. With respect to Deputy Secretary England's statement, I would refer
    you to the Department of Defense, which is in a better position to
    provide a response.
        As you know, the Supreme Court held in Hamdan that Common Article 3
    applies to the conduct of the United States during the armed conflict
    against al Qaeda. That decision extends to all detainees in the custody
    of the United States. It would not be appropriate for me to comment on
    specific privileged legal advice that the Department of Justice has
    provided on this subject. That said, the difficulty in providing clear
    guidance as to the meaning of Common Article 3 demonstrates why it was
    vitally important for Congress to enact the MCA.
        Although many of the provisions of Common Article 3 prohibit
    actions that are universally condemned, such as ``murder,''
    ``torture,'' and the ``taking of hostages,'' other terms are undeniably
    vague. Most notably, Common Article 3 prohibits ``[o]utrages upon
    personal dignity, in particular, humiliating and degrading treatment.''
    Terms such as ``outrages,'' ``personal dignity'' and ``degrading
    treatment'' are susceptible to uncertain and unpredictable
    interpretations. For example, some might consider it ``humiliating and
    degrading treatment'' merely to hear harsh words during an
    interrogation, or to be questioned by an interrogator of the opposite
    sex.
        The unpredictability of Common Article 3's meaning is exacerbated
    by the well established principles--repeatedly affirmed by the United
    States Supreme Court--that interpretations adopted by international
    tribunals deserve ``respectful consideration,'' and that
    interpretations adopted by other state parties to the treaty are due
    ``considerable weight.'' To be sure, international interpretations of
    Common Article 3 are not binding on the United States. In light of
    Hamdan, however, there was a substantial risk that the meaning of
    Common Article 3's ambiguous provisions would have been informed by the
    evolving interpretations of tribunals and governments outside the
    United States. As the President has noted, the uncertainty as to the
    meaning of Common Article 3 would have placed into doubt the ability of
    the CIA to interrogate senior al Qaeda officials and to gather from
    them information that has directly contributed to our success in
    foiling many terrorist plots over the past five years.
        The President believed that it was vitally important that the
    standards governing the treatment of detainees by the United States in
    the War on Terror should be clear and consistent with our international
    obligations. The MCA does this by clarifying the meaning of Common
    Article 3 for all U.S. personnel. The statute clearly defines the grave
    breaches of Common Article 3 that would expose individuals to criminal
    sanctions. See MCA Sec. 6(b) (amending 18 U.S.C. Sec. 2441(d)). It
    makes clear that the Constitution's protections for our own citizens--
    as defined in statute by the Detainee Treatment Act--similarly reflect
    our Nation's international obligations. See id. Sec. 6(c). And the
    statute reaffirms the President's inherent constitutional authority to
    interpret our Nation's treaty obligations and delegates to him the
    power to promulgate authoritative interpretive orders. See id.
    Sec. (6)(a)(3)(C). The MCA thereby promotes United States compliance
    with its treaty obligations by providing clarity to U.S. personnel and
    other states parties to the Geneva Conventions of our understanding of
    United States obligations under the treaty.
        Ms. Tauscher. Get back to the committee and me specifically as to
    your suggestions on how we deal with this issue [referring to the issue
    of MRE 505 and classified information being used in proceedings].
        Mr. Dell'Orto. The Military Commissions Act of 2006 lays out
    statutory framework for military commissions cases including rules
    regarding the use of classified information.
        On January 18, 2007, the Department of Defense submitted to
    Congress a Manual for Military Commissions, consistent with the
    guidance provided in the Military Commissions Act, which includes
    specific rules of evidence regarding the use of classified information.
        Ms. Tauscher. Would you agree that the Congress, in drafting the
    UCMJ, made a reasoned and considered decision, informed in part by
    concerns about the procedures adopted and applied in the Yamashita
    case, that military commissions should adhere as closely as practicable
    to the rules of the UCMJ?
        Mr. Dell'Orto. In many respects, the Military Commissions Act of
    2006 closely tracks the UCMJ. I agree that Congress has made a reasoned
    and considered decision in drafting the UCMJ as well as the Military
    Commissions Act of 2006.
        Ms. Tauscher. Have any military commissions been established since
    the UCMJ was adopted that not track the rules of the UCMJ, aside from
    those currently proposed by the administration?
        Mr. Dell'Orto. The UCMJ was implemented by Executive Order on
    February 8, 1951. I do not believe that there have been any military
    commissions conducted under the UCMJ until the initiation of the
    current military commissions associated with the current ongoing
    conflict.
        Ms. Tauscher. Which agencies and officials of the U.S. government
    did the White House consult in advising the President on the issuance
    of his military order of November 13, 2001, establishing the present
    military commissions? Were senior officials from the Pentagon,
    including the uniformed military leadership and senior Judge Advocates
    General, the State Department and the National Security Council
    consulted? If not, why were those officials in the government with
    primary responsibility for national security and knowledge of U.S.
    military law and traditions excluded from the process?
        Mr. Dell'Orto. I cannot address what consultations the White House
    did or did not have.
        Ms. Tauscher. You stated that intelligence and military operations
    might be compromised by application of the UCMJ, or a system of justice
    modeled after the UCMJ. Specifically, you warned that members of our
    armed forces would have to read Miranda rights to combatants captured
    on the battlefield, and that intelligence officers would not be able to
    carry out interrogations without first giving Miranda warnings and
    providing access to counsel.
        Isn't it true that, under the UCMJ, Miranda warnings and access to
    counsel are not required at the moment of capture or when
    interrogations are conducted for intelligence gathering purposes? Isn't
    it true that the UCMJ only requires Miranda warnings and access to
    counsel once someone has become a suspect for purposes of criminal
    prosecution?
        If so, why did you not mention this distinction in your testimony?
        Mr. Dell'Orto. The MCA makes clear that Article 31 of the UCMJ
    shall not apply, directly or indirectly, to the trial of unlawful enemy
    combatants by military commission. See 10 U.S.C. Sec. 948b(c) &
    (d)(1)(B). To answer your specific question, Article 31 of the UCMJ
    requires members of our Armed Services to provide Miranda-type warnings
    before questioning any individual who is subject to the UCMJ and
    suspected of criminal wrongdoing, whenever that questioning may be
    deemed to be part of an official law-enforcement investigation. These
    rights are broader than the rights afforded to criminal defendants in
    the civilian system. Indeed, unlike civilian Miranda rights warnings,
    military Article 31, UCMJ, rights warnings are required regardless of
    whether the suspect is in law enforcement custody. In addition, when
    the suspect is placed in custody and is to be questioned by law
    enforcement or other persons subject to the UCMJ, the suspect is
    entitled to be advised that he or she may consult with counsel and have
    such counsel present during the interrogation or questioning. When
    counsel is requested, counsel must be present before any subsequent
    custodial interrogation may proceed. The failure to provide a required
    rights warning, regardless of whether the statement is obtained for law
    enforcement or intelligence purposes, generally precludes the use of
    those statements as evidence, and may preclude the use of any
    additional evidence or information derived from those unwarned
    statements.
        The Court of Military Appeals held in the Lonetree case that
    intelligence agents who were not members of our Armed Forces did not
    have to provide Article 31 warnings when conducting an interrogation
    wholly divorced from a military law-enforcement investigation. See
    United States v. Lonetree, 35 M.J. 396, 405 (C.M.A. 1992). But Article
    31 may well apply to many situations in which members of our Armed
    Forces interrogate or interact with detainees suspected of having
    violated the law of war. Our troops should not be required to guess as
    to whether the situation they confront is sufficiently investigatory,
    nor should they be forced to choose between conducting effective
    interrogations and risking having confessions later deemed
    inadmissible. Congress appropriately determined in the MCA that Article
    31 should not apply to military commission prosecutions.
        Ms. Tauscher. You state that application of court-martial rules
    will require the government to disclose classified evidence if it
    chooses to go forward with prosecutions.
        Isn't it true that the UCMJ has rules that protect against the
    disclosure of classified evidence? Don't those rules allow the
    government to substitute summaries of evidence or statements of facts
    that the classified evidence would prove precisely to avoid the problem
    you identified--the disclosure of classified evidence?
        Mr. Dell'Orto. The Manual for Courts-Martial has a Military Rule of
    Evidence (MRE) that addresses the disclosure of classified information
    during a court-martial prosecution. MRE 505 allows the government to
    offer alternatives to the full disclosure of classified information to
    the accused. The military judge then determines whether the
    alternatives are acceptable for use by the accused at trial or whether
    the use of the classified information itself is necessary to afford the
    accused a fair trial. If the military judge determines that
    alternatives to full disclosure of the classified information are
    insufficient and the government continues to object to disclosing the
    classified information, the military judge must issue an order
    sanctioning the government as the interests of justice require. Such an
    order may include: striking all or part of the testimony of a witness,
    declaring a mistrial, or dismissing the charges, with or without
    prejudice. Thus, under the UCMJ, the government may be forced to choose
    between releasing classified information to an accused in order to
    continue the prosecution or protecting the classified information but
    foregoing the prosecution.
        In the MCA, Congress recognized that MRE 505--which was designed
    for the trials of members of our Armed Forces--needed to be tailored
    for trials of unlawful enemy combatants. The new law grants the accused
    the right to be present for all trial proceedings. See 10 U.S.C.
    Sec. 949a(b)(1)(B); id. Sec. 949d(e). Moreover, the accused will have
    access to all the evidence admitted before the trier of fact. See id.
    Sec. 949a(b)(1)(A). At the same time, the MCA contains robust
    protections to ensure that the United States can prosecute captured
    terrorists without compromising highly sensitive intelligence sources
    and methods. See id. Sec. 949d(f). I believe the MCA strikes an
    appropriate balance between the rights of the accused and interests of
    our national security.
        Ms. Tauscher. You state that the UCMJ would deprive prosecutors of
    some of the best--and in some cases only--evidence against the
    detainees: hearsay statements made on the battlefield.
        Isn't it true that the UCMJ includes exceptions to the prohibition
    on hearsay that include both an ``excited utterance'' exception and
    ``present sense impressions'' exception? Wouldn't both those exceptions
    apply to statements made on the battlefield, and wouldn't those
    statements be admissible even under the current hearsay rules of the
    UCMJ? If not, please explain.
        Mr. Dell'Orto. Military commissions, like international war crimes
    tribunals, will have a strong need to consider reliable hearsay
    evidence. Hearsay statements comprise some of the best evidence against
    those we expect to try by military commission, and it would be
    impracticable or even impossible to successfully try some of those
    accused without the use of hearsay evidence. The Military Rules of
    Evidence generally prohibit hearsay evidence and carve out certain
    established exceptions where hearsay evidence has generally been
    recognized as more reliable. While some of the hearsay evidence used in
    military commissions cases will fall into the recognized hearsay
    exceptions, given the unusual nature of these cases, some valuable
    hearsay evidence will not. In particular, the ``excited utterance''
    exception or the ``present sense impression'' exception--which permit
    the admission of hearsay statements about present or recent
    observations--are not likely to be broad enough to permit the admission
    of highly relevant reports concerning past events that reliable, but
    unavailable, foreign witnesses may have made to United States
    personnel. Thus, the Military Commissions Act of 2006 provides that
    hearsay evidence shall be admitted if it would be admissible in a
    court-martial proceeding, or if the judge otherwise finds the evidence
    probative and reliable. See 10 U.S.C. Sec. 949a(b)(2)(E).
        Ms. Tauscher. Is it not the policy of our military, as expressed in
    the current DOD Directive on its Law of War Program, to comply with the
    law of war (including Common Article 3) ``during all armed conflicts
    however such conflicts are characterized, and in all other military
    operations?''
        Mr. Dell'Orto. Yes, that is the policy.
        Ms. Tauscher. Would you agree that the United States has applied
    the minimum standards of Common Article 3 in all of the wars it has
    fought since the ratification of the Geneva Conventions, including
    against irregular forces like the Viet Cong and warlords in Somalia?
    Isn't it true that in all of those conflicts we considered ourselves
    bound to apply the basic standards of humane treatment and fair justice
    embodied in Common Article 3--even against enemies that engaged in
    brutal war crimes--in recognition that our actions set an example for
    others and for the treatment of our own troops when they are captured?
        Mr. Dell'Orto. U.S. Armed Forces personnel captured in the course
    of an armed conflict have the status of prisoners of war under the
    Third Geneva Convention. The full scope of that convention's provisions
    and protections would apply in those circumstances, not the more
    limited protections of Common Article 3. In every armed conflict, the
    United States has demanded always that captured U.S. personnel be
    afforded all the rights and privileges of their lawful status. It has
    not always been the case, however, that other State parties to the
    Geneva Conventions have afforded our personnel such protections. Recall
    the experience of U.S. POWs held by the North Vietnamese.
        The United States provided captured Viet Cong and North Vietnamese
    forces with prisoner of war protections out of our interest in
    protecting captured U.S. military personnel and civilians, following
    the murder of three U.S. military personnel in Viet Cong hands.
    Captured U.S. personnel did not benefit from this policy decision,
    however, and they suffered confinement under brutal conditions,
    torture, malnourishment, and other hardships up to and including murder
    at the hands of their captors.
        An historical and fundamental premise of the law of war is that
    private citizens may not engage in combatant acts. No law of war treaty
    requires that a State provide prisoner of war status or protections to
    civilians who unlawfully take up arms against that State. Doing so
    would place innocent civilians in greater jeopardy, and would reward
    terrorists for their violations of the law of war.
        Reciprocity in practices among States who are parties to the same
    treaty is an important consideration. However, the attack of civilian
    objects and the death of almost 3,000 innocent civilians on September
    11, 2001; the illegal attacks on other civilian objects, such as the
    United Nations and International Committee of the Red Cross facilities
    in Iraq; and the subsequent kidnapping, torture and murder of innocent
    U.S. and foreign civilians, such as the May 11, 2004, beheading of
    Nicholas Berg, provide no expectation of even limited application of
    the law of war by al Qaeda, which is not a State party to the Geneva
    Conventions.
        Ms. Tauscher. Please specify any and all examples of situations
    where these requirements of humane treatment were a detriment to our
    military's ability to fulfill its mission?
        Mr. Dell'Orto. I do not believe that treating detainees humanely is
    a detriment to fulfilling U.S. military mission requirements.
        Ms. Tauscher. Please specify examples of any and all interrogation
    techniques that you believe U.S. service members or contractors should
    be allowed to employ, but are prohibited by the humane treatment
    requirements of Common Article 3?
        Mr. Dell'Orto. The Detainee Treatment Act of 2005 contains the
    following provision:

         No person in the custody or under the effective control of the
    Department of Defense or under detention in a Department of Defense
    facility shall be subject to any treatment or interrogation approach or
    technique that is not authorized by and listed in the United States
    Army Field Manual on Intelligence Interrogation.

        The Deputy Secretary issued a directive to the Department on
    December 30, 2005, informing the field of this legal requirement under
    the Detainee Treatment Act. The interrogation approaches and techniques
    contained in Field Manual 34-52, Intelligence Interrogations, comply
    with the law and are well within the humane treatment requirements of
    Common Article 3.
        Ms. Tauscher. If the meaning of humane treatment under Common
    Article 3 is vague and not fully understood by military commanders, why
    was Deputy Secretary England able to state with confidence that current
    DOD practices and policies fully comply with its standard?
        Mr. Dell'Orto. The policies promulgated by the Department of
    Defense are well above the standards of Common Article 3.
        Ms. Tauscher. Isn't it true that interpretations and rulings issued
    by foreign tribunals are not ever binding on the U.S.? And that
    therefore the U.S. is not, and would not, ever be obliged to adopt an
    international tribunal's definition of the terms of Common Article 3?
        Mr. Dell'Orto. Many of the provisions of Common Article 3 prohibit
    actions that are universally understood and condemned, such as
    ``murder,'' ``mutilation,'' ``torture,'' and the ``taking of
    hostages.'' It is undeniable, however, that some of the terms in Common
    Article 3 are inherently vague, as this Committee already discussed in
    its recent hearing on the subject.
        For example, Common Article 3 prohibits ``[o]utrages upon personal
    dignity, in particular, humiliating and degrading treatment,'' a phrase
    that is susceptible of uncertain and unpredictable application. If left
    undefined by statute, the application of Common Article 3 could create
    an unacceptable degree of uncertainty for those who fight to defend us
    from terrorist attack, particularly because any violation of Common
    Article 3 constitutes a federal crime under the War Crimes Act.
        Furthermore, the Supreme Court has said that in interpreting a
    treaty provision such as Common Article 3, the meaning given to the
    treaty language by international tribunals must be accorded
    ``respectful consideration,'' and the interpretations adopted by other
    state parties to the treaty are due ``considerable weight.''
    Accordingly, the meaning of Common Article 3--the baseline standard
    that now applies to the conduct of U.S. personnel in the War on
    Terror--would be informed by the evolving interpretations of tribunals
    and governments outside the United States.
        Ms. Tauscher. Does the Supreme Court's ruling that Common Article 3
    applies to the treatment of all al Qaeda detainees in U.S. custody also
    apply to the treatment of al Qaeda detainees in the custody of other
    U.S. government agencies, including the CIA? If not, why not? If so,
    what steps are being taken to communicate this requirement to such
    agencies?
        Mr. Dell'Orto. I can only speak for the Department of Defense and
    note the steps taken to ensure that the Supreme Court's ruling in
    Hamdan has been communicated throughout the Department of Defense. The
    Deputy Secretary issued a memorandum on July 7, 2006 informing the
    Department of Defense that the Supreme Court determined that Common
    Article 3 to the Geneva Conventions of 1949 applies as a matter of law
    to the conflict with al Qaeda. A copy of this memorandum has already
    been provided to Congress.
        Ms. Tauscher. Has any country in the world that is a party to the
    Geneva Conventions ever passed a law or promulgated a policy that
    denies the application of Common Article 3 to any detainee captured as
    part of an armed conflict?
        Mr. Dell'Orto. I do not know.
                                     ______

                 QUESTIONS SUBMITTED BY MS. DAVIS OF CALIFORNIA
        Ms. Davis. Why have only ten of the terrorist combatants in
    Guantanamo been charged? What does the government plan to do with the
    rest of the people currently held at GTMO?
        Mr. Bradbury. As the Supreme Court recognized in the Hamdi
    decision, the United States has the authority to detain enemy
    combatants for the duration of hostilities. See Hamdi v. Rumsfeld, 542
    U.S. 507, 519-21 (2004). The decision whether to charge an enemy
    combatant with a crime depends, however, on whether there is specific
    evidence that the individual committed a war crime. In light of the
    passage of the Military Commissions Act of 2006, and the resulting
    removal of any legal uncertainty over whether the military commissions
    are authorized by statute, we expect a greater number of detainees will
    be charged and tried by military commission.
        With respect to those detainees who are not charged, the United
    States has the authority to detain those individuals for the duration
    of hostilities, consistent with their status as enemy combatants under
    international law. Nevertheless,the President has made clear that the
    United States has no interest in detaining these individuals beyond the
    point where such detention is necessary. Accordingly, the United States
    has voluntarily taken measures to review the need to continue to hold
    enemy combatants on an annual basis through the Administrative Review
    Board (``ARB'') process. The ARBs assess whether the enemy combatant
    poses a threat to the United States or its allies in the ongoing War on
    Terror and whether there are other factors bearing on the need for
    continued detention (e.g., intelligence value). When appropriate, the
    United States has undertaken extraordinary measures to repatriate enemy
    combatants to their home countries. We emphasize, however, that these
    transfers are not without risk. On anumber of occasions, enemy
    combatants released by the United States have returned to the field of
    battle to once again take up arms against American forces. Accordingly,
    for the safety of United States citizens, it is important that the
    United States be careful and ensure that enemy combatants are released
    only when they truly no longer pose a threat to the United States and
    its allies.
        Ms. Davis. The military commission rules the President approved
    prior to the Hamdan decision contained a number of different features
    distinguishing the commissions from ordinary courts martial or other
    conventional judicial proceedings. Are there specific policy rationales
    for each of those distinctions? Please explain.
        Mr. Bradbury. In his military commissions order, the President
    determined that the trial of captured terrorists by court-martial
    procedures would not be practicable, and he therefore directed the
    Department of Defense to convene military commissions that would
    reflect the military realities of the War on Terror, but that would
    still provide detainees with full and fair trials. At that time, the
    President did not make the specific procedure-by-procedure
    determination as to every departure from the court-martial system that
    the Supreme Court later held in Hamdan was required by Article 36 of
    the Uniform Code of Military Justice (the ``UCMJ'').
        Congress has now passed, and the President has signed into law, the
    MCA. The MCA relies upon the UCMJ as a starting point and then departs
    in specific respects where the court-martial procedures would be
    impracticable or inappropriate. For example, because many terrorists
    were captured on the battlefield, strict hearsay rules that would
    require foreign nationals and United States military personnel to
    appear personally at military commissions would present significant
    obstacles to the trials of such enemy combatants. Therefore, the MCA
    recognizes that the hearsay rules applicable in courts-martial shall
    not apply here. See 10 U.S.C. Sec. 949a(b)(2)(E). In other
    circumstances, the UCMJ provides protections that exceed those given to
    criminal defendants in civilian courts, and that would be inappropriate
    to provide to alien unlawful enemy combatants in the military
    commissions. Congress therefore provided, for example, that Article
    31(a), (b), and (d) (concerning the pretrial right to counsel) and
    Article 32 (concerning the pretrial investigation) of the UCMJ shall
    not apply to military commissions. See id. Sec. 948b(d). More
    generally, the MCA provides that the rules issued by the Secretary of
    Defense shall track those of courts-martial only insofar as he
    ``considers practicable or consistent with military or intelligence
    activities.'' Id. Sec. 949a(a). Thus, while the MCA tracks the UCMJ in
    many respects, Congress correctly determined that these and other
    court-martial provisions should not be employed in military
    commissions.
        Ms. Davis. Why doesn't the Administration try to implement the
    Hamdan decision by complying with Common Article 3 and modifying the
    military commissions to better incorporate due process provisions
    mentioned by the Court, rather than requesting Congressional action
    without the benefit of experience?
        Mr. Bradbury. Congress recognized in the MCA that the procedures
    enacted therein fully satisfy the standards of Common Article 3. See 10
    U.S.C. Sec. 948b(f). We agree and believe that the legislation
    appropriately addresses the concerns raised by the Supreme Court.
    Common Article 3 prohibits the ``passing of sentences and the carrying
    out of executions without previous judgment pronounced by a regularly
    constituted court, affording all the judicial guarantees which are
    recognized as indispensable by civilized peoples.'' Common Article 3
    provides no further details as to the ``judicial guarantees which are
    recognized as indispensable by civilized peoples,'' but the MCA, which
    takes the UCMJ as a starting point, provides extensive procedural
    protections for the accused that fully satisfy the international
    standard.
        The Supreme Court held in Hamdan that the then-existing military
    commission procedures conflicted with Articles 21 and 36 of the UCMJ.
    The Court did not hold that any particular commission procedure
    violated due process or international law. Nonetheless, several of the
    Justices, in separate opinions, did express concerns about some
    commission procedures, and the new military commission legislation
    addresses those concerns. For instance, to ensure the impartiality of
    the tribunal, the MCA provides that a military judge presides over the
    commission proceeding with the traditional authority of a judge to
    issue final rulings at trial on law and evidence. See 10 U.S.C.
    Sec. 949l(b). In addition, the MCA provides that the minimum number of
    members of the commission is increased to five in non-capital cases,
    and twelve in capital cases, so as to track the procedures now in place
    under the UCMJ. See id. Sec. 948m(a); id. Sec. 949m(c).
        Ms. Davis. If you believe Congress can establish non-law-of-war
    violations that are subject to trial by military commission (for
    example, conspiracy or inchoate offenses related to terrorism), do you
    believe such new offenses could be applied retroactively? If so, under
    what theory of law?
        Mr. Bradbury. The Administration believes that conspiracy is an
    offense under the law of war and is therefore properly triable by
    military commission. As Justice Thomas demonstrated in his opinion in
    Hamdan, that view is supported by historical practice and by
    authoritative commentators on the law of war. In enacting the MCA,
    Congress has appropriately exercised its authority under Article I,
    Section 8, to ``define and punish . . . Offenses against the Law of
    Nations,'' by specifically authorizing military commissions to try
    unlawful alien enemy combatants for conspiring to violate the law of
    war. In so doing, Congress specifically recognized that conspiracy was
    an offense ``that ha[d] been traditionally triable by military
    commission.'' 10 U.S.C. Sec. 950p(a). This determination should make
    clear that conspiracy remains properly triable by military commission.
    We also note that conspiracies to commit the offenses defined as ``war
    crimes'' are already prosecutable in federal court. See 18 U.S.C.
    Sec. 2441(c)(1); id. Sec. 371. Title 18 likewise prohibits providing
    material support to terrorism. See id. Sec. 2339A; 2339B. Because
    conspiring to commit a war crime or providing material support to
    terrorism is not a ``new offense,'' the prosecution for such a crime
    would not raise retroactivity concerns.
        Ms. Davis. What are the specific definitions the Secretary uses for
    the following terms:

        a. Enemy combatant?
        b. Unlawful enemy combatant?
        c. War crime?
        d. Terrorist?
        e. Coercion?
        f. Cruel?
        g. Humiliating?
        h. Degrading?
        i. Indignities?
        j. Inhuman?

        Mr. Bradbury. The MCA defines many of the terms that you have
    listed for purposes of military commissions. ``Lawful enemy combatant''
    and ``unlawful enemy combatant'' are defined under 10 U.S.C. Sec. 948a.
    The statute does not specifically define ``enemy combatant,'' but every
    combatant will either be a lawful or an unlawful combatant.
        The ``war crimes'' that violate Common Article 3 as a matter of
    United States criminal law are defined in 18 U.S.C. Sec. 2441, as
    amended by section 6 of the MCA. In addition, 10 U.S.C. Sec. 950v(b)
    defines the offenses traditionally triable by military commission that
    would generally be understood to constitute war crimes.
        The MCA defines the offense of ``terrorism'' at 10 U.S.C.
    Sec. 950v(b)(24).
        ``Cruel, inhuman and degrading treatment'' is defined in section
    6(c) of the MCA. In addition, the War Crimes Act, as amended by the
    MCA, defines an offense of cruel or inhuman treatment. See 18 U.S.C.
    Sec. 2441(d)(1)(B).
        To the extent your question seeks the particular definitions of
    other terms employed by the Secretary of Defense, we would refer you
    directly to the Department of Defense, which is in a better position to
    respond.
        Ms. Davis. Generally, the United States filled GTMO in late 2001
    and early 2002, and hundreds of people who have been designated as
    enemy combatants have been sitting there for nearly four years in
    solitary confinement. While hundreds sit there, the administration has
    only filed charging documents for ten of them.
        Mr. Dell'Orto. We have no one at Guantanamo who is held in solitary
    confinement.
        Ms. Davis. Why have only ten been charged?
        Mr. Dell'Orto. Charging of some of the detainees before military
    commission commenced in the summer of 2004 and continued into 2005. A
    number of restraining orders were issued in habeas corpus actions
    pending before United States District Courts preventing military
    commissions from proceeding. A decision was made to delay additional
    charges until such time as the restraining orders in pending cases were
    lifted and the law concerning military commissions was settled. In June
    2006, the United States Supreme Court held in Hamdan that the prior
    structure of military commissions lacked statutory authorization. Now
    that Congress has passed the Military Commissions Act of 2006, the
    President has signed it into law, and the Manual for Military
    Commissions has been promulgated, charges have been preferred against
    three individuals. We expect additional individuals will be charged in
    the future.
        Ms. Davis. Are they no longer of intelligence value?
        Mr. Dell'Orto. The United States has no desire to hold detainees
    any longer than necessary, but transfers are not without risk. We make
    a determination about the transfer of a detainee based on the best
    information and evidence available at the time, both classified and
    unclassified. They are of varying degrees of intelligence value.
    Remember, some of these individuals are highly skilled in concealing
    the truth. Al Qaeda's training manual, a.k.a. the Manchester Manual,
    stresses the importance of deception tactics, techniques, and
    procedures. Once the individual is transferred, that person becomes the
    responsibility of his home country and is subject to that country's
    laws. About 15 detainees who have been released are reported to have
    returned to the fight.
        The Administrative Review Board (ARB) assesses whether an enemy
    combatant continues to pose a threat to the United States or its
    allies, or whether there are other factors bearing on the need for
    continued detention. The process permits the detainee to appear in
    person before an ARB panel of three military officers to explain why
    the detainee is no longer a threat to the United States or its allies
    and to provide information to support the detainee's release. The
    recommendation of the ARB panel is provided to the Designated Civilian
    Official (DCO), who then makes a determination as to whether a
    particular enemy combatant should continue to be detained, be
    transferred, or released.
        Ms. Davis. What does the government plan to do with the rest of
    these people?
        Mr. Dell'Orto. See answer above.
        Ms. Davis. Are we planning to detain them indefinitely (given the
    Rasul decision and the indefinite nature of war on a tactic,
    ``terrorism'')? For the rest of their natural lives? Until another
    government agrees to take them? Almost all major conflicts have a
    definite end. When in is the end of this ``conflict?'' How will we know
    when it's over since we likely won't be signing a peace treaty? Please
    explain.
        Mr. Dell'Orto. See answer above.
        Additionally, the war on terror is different from a conventional
    war because the United States is at war against al Qaeda, an
    international terrorist organization. Al Qaeda is not a State party to
    the Geneva Conventions and does not conduct its operations in
    accordance with the customs and laws of war.
        The law in regard to this matter is the law of war. It is difficult
    to know during a war, when the war will be won. We certainly hope that
    hostilities will not continue for decades, but the law permits
    detaining enemy combatants until the cessation of hostilities.
        Ms. Davis. The military commission rules the President approved--
    and that the Hamdan court found unlawful--contained a number of
    different features distinguishing the commission from ordinary courts
    martial or other conventional judicial proceedings. Are there specific
    policy rationales for each of those distinctions? If yes, what
    rationales correspond to the specific features of the commissions, and
    how were they arrived at? If no, then why is any particular feature of
    the original rules indispensable?
        Mr. Dell'Orto. The original military commission rules were
    formulated to comport with the modern military commission precedent,
    dating back to the World War II era as reviewed by the Supreme Court in
    Ex parte Quirin, 317 U.S. 1 (1942).
        Ms. Davis. Why doesn't the Administration wait to see if it can
    implement the Hamdan decision without all the adverse consequences it
    was warning about? It could proceed by complying with Common Article 3
    and modifying the military commissions to better incorporate due
    process provisions mentioned by the Court. It could then report back in
    a year or two about actual experiences rather than requesting
    congressional changes without the benefit of experience.
        Mr. Dell'Orto. We at the Department of Defense believe that in
    Hamdan, the Supreme Court indicated that Congress and the Executive
    Branch should work together to address the appropriate procedures
    governing commissions. We believe that the recently enacted Military
    Commissions Act of 2006, the product of such a joint effort, preserves
    flexibility in the procedures for military commissions while ensuring
    that those accused receive a full and fair trial.
        Ms. Davis. If you believe Congress can establish non-law of war
    violations that are subject to trial by military commission (for
    example, conspiracy or inchoate offenses related to terrorism), do you
    believe such new offenses could be applied retroactively? If so, under
    what theory of law?
        Mr. Dell'Orto. The Military Commissions Act of 2006 deals with the
    question of retroactivity of new offenses. I believe that it has the
    appropriate solution.
        Ms. Davis. What are the specific definitions the Secretary uses for
    the following terms:

        a. Enemy combatant?
        b. Unlawful enemy combatant?
        c. War crime?
        d. Terrorist?
        e. Coercion?
        f. Cruel?
        g. Humiliating?
        h. Degrading?
        i. Indignities?
        j. Inhuman?

        Mr. Dell'Orto.

    Enemy combatant

        From the Military Commissions Act of 2006 and for the purposes of
    trial by military commission:

          ``(2) LAWFUL ENEMY COMBATANT.--The term `lawful enemy combatant'
    means a person who is--
          ``(A) a member of the regular forces of a State party engaged in
    hostilities against the United States;
          ``(B) a member of a militia, volunteer corps, or organized
    resistance movement belonging to a State party engaged in such
    hostilities, which are under responsible command, wear a fixed
    distinctive sign recognizable at a distance, carry their arms openly,
    and abide by the law of war; or
          ``(C) a member of a regular armed force who professes allegiance
    to a government engaged in such hostilities, but not recognized by the
    United States.

    Unlawful enemy combatant

        From the Military Commissions Act of 2006 and for the purposes of
    trial by military commission:

          ``(1) UNLAWFUL ENEMY COMBATANT.--(A) The term `unlawful enemy
    combatant' means--
          ``(i) a person who has engaged in hostilities or who has
    purposefully and materially supported hostilities against the United
    States or its co-belligerents who is not a lawful enemy combatant
    (including a person who is part of the Taliban, al Qaeda, or associated
    forces); or
          ``(ii) a person who, before, on, or after the date of the
    enactment of the Military Commissions Act of 2006, has been determined
    to be an unlawful enemy combatant by a Combatant Status Review Tribunal
    or another competent tribunal established under the authority of the
    President or the Secretary of Defense.

    War crime

        Under Section 2441 of title 18, United States Code, (c) Definition.
    As used in this section the term ``war crime'' means any conduct--
        (1) defined as a grave breach in any of the international
    conventions signed at Geneva 12 August 1949, or any protocol to such
    convention to which the United States is a party;
        (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the
    Hague Convention IV, Respecting the Laws and Customs of War on Land,
    signed 18 October 1907;
        (3) which constitutes a violation of common Article 3 of the
    international conventions signed at Geneva, 12 August 1949, or any
    protocol to such convention to which the United States is a party and
    which deals with non-international armed conflict; or
        (4) of a person who, in relation to an armed conflict and contrary
    to the provisions of the Protocol on Prohibitions or Restrictions on
    the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on
    3 May 1996 (Protocol II as amended on 3 May 1996), when the United
    States is a party to such Protocol, willfully kills or causes serious
    injury to civilians.

        The Military Commissions Act of 2006 amends the previous definition
    as follows:

         (1) IN GENERAL.--Section 2441 of title 18, United States Code, is
    amended--
         (A) in subsection (c), by striking paragraph (3) and inserting the
    following new paragraph (3):

         ``(3) which constitutes a grave breach of common Article 3 (as
    defined in subsection (d)) when committed in the context of and in
    association with an armed conflict not of an international character;
    or''; and
         (B) by adding at the end the following new subsection:

         ``(d) COMMON ARTICLE 3 VIOLATIONS.--
         ``(1) PROHIBITED CONDUCT.--In subsection (c)(3), the term `grave
    breach of common Article 3' means any conduct (such conduct
    constituting a grave breach of common Article 3 of the international
    conventions done at Geneva August 12, 1949), as follows:

         ``(A) TORTURE.--The act of a person who commits, or conspires or
    attempts to commit, an act specifically intended to inflict severe
    physical or mental pain or suffering (other than pain or suffering
    incidental to lawful sanctions) upon another person within his custody
    or physical control for the purpose of obtaining information or a
    confession, punishment, intimidation, coercion, or any reason based on
    discrimination of any kind.
         ``(B) CRUEL OR INHUMAN TREATMENT.--The act of a person who
    commits, or conspires or attempts to commit, an act intended to inflict
    severe or serious physical or mental pain or suffering (other than pain
    or suffering incidental to lawful sanctions), including serious
    physical abuse, upon another within his custody or control.
         ``(C) PERFORMING BIOLOGICAL EXPERIMENTS.--The act of a person who
    subjects, or conspires or attempts to subject, one or more persons
    within his custody or physical control to biological experiments
    without a legitimate medical or dental purpose and in so doing
    endangers the body or health of such person or persons.
         ``(D) MURDER.--The act of a person who intentionally kills, or
    conspires or attempts to kill, or kills whether intentionally or
    unintentionally in the course of committing any other offense under
    this subsection, one or more persons taking no active part in the
    hostilities, including those placed out of combat by sickness, wounds,
    detention, or any other cause.

    S. 3930-35

         ``(E) MUTILATION OR MAIMING.--The act of a person who
    intentionally injures, or conspires or attempts to injure, or injures
    whether intentionally or unintentionally in the course of committing
    any other offense under this subsection, one or more persons taking no
    active part in the hostilities, including those placed out of combat by
    sickness, wounds, detention, or any other cause, by disfiguring the
    person or persons by any mutilation thereof or by permanently disabling
    any member, limb, or organ of his body, without any legitimate medical
    or dental purpose.
         ``(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.--The act of a
    person who intentionally causes, or conspires or attempts to cause,
    serious bodily injury to one or more persons, including lawful
    combatants, in violation of the law of war.
         ``(G) RAPE.--The act of a person who forcibly or with coercion or
    threat of force wrongfully invades, or conspires or attempts to invade,
    the body of a person by penetrating, however slightly, the anal or
    genital opening of the victim with any part of the body of the accused,
    or with any foreign object.
         ``(H) SEXUAL ASSAULT OR ABUSE.--The act of a person who forcibly
    or with coercion or threat of force engages, or conspires or attempts
    to engage, in sexual contact with one or more persons, or causes, or
    conspires or attempts to cause, one or more persons to engage in sexual
    contact.
         ``(I) TAKING HOSTAGES. The act of a person who, having knowingly
    seized or detained one or more persons, threatens to kill, injure, or
    continue to detain such person or persons with the intent of compelling
    any nation, person other than the hostage, or group of persons to act
    or refrain from acting as an explicit or implicit condition for the
    safety or release of such person or persons.
         ``(2) DEFINITIONS.--In the case of an offense under subsection (a)
    by reason of subsection (c)(3)--
         ``(A) the term `severe mental pain or suffering' shall be applied
    for purposes of paragraphs (1)(A) and (1)(B) in accordance with the
    meaning given that term in section 2340(2) of this title;
         ``(B) the term `serious bodily injury' shall be applied for
    purposes of paragraph (1)(F) in accordance with the meaning given that
    term in section 113(b)(2) of this title;
         ``(C) the term `sexual contact' shall be applied for purposes of
    paragraph (1)(G) in accordance with the meaning given that term in
    section 2246(3) of this title;
         ``(D) the term `serious physical pain or suffering' shall be
    applied for purposes of paragraph (1)(B) as meaning bodily injury that
    involves--
         ``(i) a substantial risk of death;
         ``(ii) extreme physical pain;
         ``(iii) a burn or physical disfigurement of a serious nature
    (other than cuts, abrasions, or bruises); or
         ``(iv) significant loss or impairment of the function of a bodily
    member, organ, or mental faculty; and
         ``(E) the term `serious mental pain or suffering' shall be applied
    for purposes of paragraph (1)(B) in accordance with the meaning given
    the term `severe mental pain or suffering' (as defined in section
    2340(2) of this title), except that--

    S. 3930-36

         ``(i) the term `serious' shall replace the term `severe' where it
    appears; and
         ``(ii) as to conduct occurring after the date of the enactment of
    the Military Commissions Act of 2006, the term `serious and non-
    transitory mental harm (which need not be prolonged)' shall replace the
    term `prolonged mental harm' where it appears.
         ``(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO
    COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK.--The intent specified
    for the conduct stated in subparagraphs (D), (E), and (F) or paragraph
    (1) precludes the applicability of those subparagraphs to an offense
    under subsection (a) by reasons of subsection (c)(3) with respect to--
         ``(A) collateral damage; or
         ``(B) death, damage, or injury incident to a lawful attack.
         ``(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.--
    Paragraph (1)(I) does not apply to an offense under subsection (a) by
    reason of subsection (c)(3) in the case of a prisoner exchange during
    wartime.
         ``(5) DEFINITION OF GRAVE BREACHES.--The definitions in this
    subsection are intended only to define the grave breaches of common
    Article 3 and not the full scope of United States obligations under
    that Article.''.
         (2) RETROACTIVE APPLICABILITY.--The amendments made by this
    subsection, except as specified in subsection (d)(2)(E) of section 2441
    of title 18, United States Code, shall take effect as of November 26,
    1997, as if enacted immediately after the amendments made by section
    583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public
    Law 107-273).

    Terrorist

        From the Military Commissions Act of 2006:

         TERRORISM.--Any person subject to this chapter who intentionally
    kills or inflicts great bodily harm on one or more protected persons,
    or intentionally engages in an act that evinces a wanton disregard for
    human life, in a manner calculated to influence or affect the conduct
    of government or civilian population by intimidation or coercion, or to
    retaliate against government conduct, shall be punished, if death
    results to one or more of the victims, by death or such other
    punishment as a military commission under this chapter may direct, and,
    if death does not result to any of the victims, by such punishment,
    other than death, as a military commission under this chapter may
    direct.
         ``(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.--
         ``(A) OFFENSE.--Any person subject to this chapter who provides
    material support or resources, knowing or intending that they are to be
    used in preparation for, or in carrying out, an act of terrorism (as
    set forth in paragraph (24)), or who intentionally provides material
    support or resources to an international terrorist organization engaged
    in hostilities against the United States, knowing that such
    organization has engaged or engages in terrorism (as so set forth),
    shall be punished as a military commission under this chapter may
    direct.
         ``(B) MATERIAL SUPPORT OR RESOURCES DEFINED.--In this paragraph,
    the term `material support or resources' has the meaning given that
    term in section 2339A(b) of title 18.

    Coercion

        From FM 2-22.3, Human Intelligence Collector Operations (page 5-
    22):

         Although no single comprehensive source defines impermissible
    coercion, certain acts are clearly prohibited. Certain prohibited
    physical coercion may be obvious, such as physically abusing the
    subject of an interview or interrogation. Other forms of impermissible
    coercion may be more subtle, and may include threats to turn the
    individual over to others to be abused; subjecting the individual to
    impermissible humiliating or degrading treatment; implying harm to the
    individual or his property. Other prohibited actions include implying a
    deprivation of applicable protections guaranteed by law because of a
    failure to cooperate; threatening to separate parents from their
    children; or forcing a protected person to guide US forces in a
    dangerous area.

    Cruel

        Under section 1003(d) of the Detainee Treatment Act and section
    6(c)(2) of the Military Commissions Act of 2006, the term ``cruel,
    inhuman, or degrading treatment or punishment'' means:

          the cruel, unusual, and inhumane treatment or punishment
    prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
    Constitution of the United States, as defined in the United States
    Reservations, Declarations and Understandings to the United Nations
    Convention Against Torture and Other Forms of Cruel, Inhuman or
    Degrading Treatment or Punishment done at New York, December 10, 1984.

        The Military Commissions Act of 2006 further provides:

          ``(12) CRUEL OR INHUMAN TREATMENT.--
          ``(A) OFFENSE.--Any person subject to this chapter who commits an
    act intended to inflict severe or serious physical or mental pain or
    suffering (other than pain or suffering incidental to lawful
    sanctions), including serious physical abuse, upon another within his
    custody or control shall be punished, if death results to the victim,
    by death or such other punishment as a military commission under this
    chapter may direct, and, if death does not result to the victim, by
    such punishment, other than death, as a military commission under this
    chapter may direct.

          ``(B) DEFINITIONS.--In this paragraph:

          ``(i) The term `serious physical pain or suffering' means bodily
    injury that involves--
          ``(I) a substantial risk of death;
          ``(II) extreme physical pain;
          ``(III) a burn or physical disfigurement of a serious nature
    (other than cuts, abrasions, or bruises); or
          ``(IV) significant loss or impairment of the function of a bodily
    member, organ, or mental faculty.
          ``(ii) The term `severe mental pain or suffering' has the meaning
    given that term in section 2340(2) of title 18.
          ``(iii) The term `serious mental pain or suffering' has the
    meaning given the term `severe mental pain or suffering' in section
    2340(2) of title 18, except that--
          ``(I) the term `serious' shall replace the term `severe' where it
    appears; and
          ``(II) as to conduct occurring after the date of the enactment of
    the Military Commissions Act of 2006, the term `serious and non-
    transitory mental harm (which need not be prolonged)' shall replace the
    term `prolonged mental harm' where it appears.

    Humiliating

        The Supreme Court determined that Common Article 3 to the Geneva
    Conventions of 1949 applies as a matter of law to the conflict with al
    Qaeda. Common Article 3 prohibits outrages upon personal dignity, in
    particular, humiliating and degrading treatment. There is no definition
    of humiliating in Common Article 3 or the Geneva Conventions of 1949.

    Degrading

        Under the Detainee Treatment Act, Section 1003(d) and the Military
    Commissions Act of 2006, the term ``cruel, inhuman, or degrading
    treatment or punishment'' means:

          the cruel, unusual, and inhumane treatment or punishment
    prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
    Constitution of the United States, as defined in the United States
    Reservations, Declarations and Understandings to the United Nations
    Convention Against Torture and Other Forms of Cruel, Inhuman or
    Degrading Treatment or Punishment done at New York, December 10, 1984.

    Indignities

        There is no definition of the term ``indignity'' in Department of
    Defense policies or regulations. As stated above, the Supreme Court has
    determined that Common Article 3 to the Geneva Conventions of 1949
    applies as a matter of law to the conflict with al Qaeda. Common
    Article 3 prohibits outrages upon personal dignity. There is no
    definition of the term ``outrages upon personal dignity'' in Common
    Article 3 or the Geneva Conventions of 1949.

    Inhuman:

        Under the Detainee Treatment Act, Section 1003(d) and the Military
    Commissions Act of 2006, the term ``cruel, inhuman, or degrading
    treatment or punishment'' means:

          the cruel, unusual, and inhumane treatment or punishment
    prohibited by the Fifth, Eighth, and Fourteenth Amendments to the
    Constitution of the United States, as defined in the United States
    Reservations, Declarations and Understandings to the United Nations
    Convention Against Torture and Other Forms of Cruel, Inhuman or
    Degrading Treatment or Punishment done at New York, December 10, 1984.

        The Military Commissions Act of 2006 further provides:

          ``(12) CRUEL OR INHUMAN TREATMENT.--
          ``(A) OFFENSE.--Any person subject to this chapter who commits an
    act intended to inflict severe or serious physical or mental pain or
    suffering (other than pain or suffering incidental to lawful
    sanctions), including serious physical abuse, upon another within his
    custody or control shall be punished, if death results to the victim,
    by death or such other punishment as a military commission under this
    chapter may direct, and, if death does not result to the victim, by
    such punishment, other than death, as a military commission under this
    chapter may direct.
          ``(B) DEFINITIONS.--In this paragraph:

          ``(i) The term `serious physical pain or suffering' means bodily
    injury that involves--
          ``(I) a substantial risk of death;
          ``(II) extreme physical pain;
          ``(III) a burn or physical disfigurement of a serious nature
    (other than cuts, abrasions, or bruises); or
          ``(IV) significant loss or impairment of the function of a bodily
    member, organ, or mental faculty.
          ``(ii) The term `severe mental pain or suffering' has the meaning
    given that term in section 2340(2) of title 18.
          ``(iii) The term `serious mental pain or suffering' has the
    meaning given the term `severe mental pain or suffering' in section
    2340(2) of title 18, except that--
          ``(I) the to `serious' shall replace the term `severe' where it
    appears; and
          ``(II) as to conduct occurring after the date of the enactment of
    the Military Commissions Act of 2006, the term `serious and non-
    transitory mental harm (which need not be prolonged)' shall replace the
    term `prolonged mental harm' where it appears.