[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

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                     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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                   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.

                                  
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