[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 109-117]
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 26, 2006
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
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HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Ninth Congress
DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania IKE SKELTON, Missouri
JOEL HEFLEY, Colorado JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York LANE EVANS, Illinois
TERRY EVERETT, Alabama GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland NEIL ABERCROMBIE, Hawaii
MAC THORNBERRY, Texas MARTY MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana SILVESTRE REYES, Texas
WALTER B. JONES, North Carolina VIC SNYDER, Arkansas
JIM RYUN, Kansas ADAM SMITH, Washington
JIM GIBBONS, Nevada LORETTA SANCHEZ, California
ROBIN HAYES, North Carolina MIKE McINTYRE, North Carolina
KEN CALVERT, California ELLEN O. TAUSCHER, California
ROB SIMMONS, Connecticut ROBERT A. BRADY, Pennsylvania
JO ANN DAVIS, Virginia ROBERT ANDREWS, New Jersey
W. TODD AKIN, Missouri SUSAN A. DAVIS, California
J. RANDY FORBES, Virginia JAMES R. LANGEVIN, Rhode Island
JEFF MILLER, Florida STEVE ISRAEL, New York
JOE WILSON, South Carolina RICK LARSEN, Washington
FRANK A. LoBIONDO, New Jersey JIM COOPER, Tennessee
JEB BRADLEY, New Hampshire JIM MARSHALL, Georgia
MICHAEL TURNER, Ohio KENDRICK B. MEEK, Florida
JOHN KLINE, Minnesota MADELEINE Z. BORDALLO, Guam
CANDICE S. MILLER, Michigan TIM RYAN, Ohio
MIKE ROGERS, Alabama MARK UDALL, Colorado
TRENT FRANKS, Arizona G.K. BUTTERFIELD, North Carolina
BILL SHUSTER, Pennsylvania CYNTHIA McKINNEY, Georgia
THELMA DRAKE, Virginia DAN BOREN, Oklahoma
JOE SCHWARZ, Michigan
CATHY McMORRIS, Washington
MICHAEL CONAWAY, Texas
GEOFF DAVIS, Kentucky
BRIAN P. BILBRAY, California
Robert L. Simmons, Staff Director
Paul Lewis, Professional Staff Member
Lorry Fenner, Professional Staff Member
Regina Burgess, Research Assistant
C O N T E N T S
----------
CHRONOLOGICAL LIST OF HEARINGS
2006
Page
Hearing:
Wednesday, July 26, 2006, Standards of Military Commissions and
Tribunals...................................................... 1
Appendix:
Wednesday, July 26, 2006......................................... 45
----------
WEDNESDAY, JULY 26, 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............................ 2
WITNESSES
Elsea, Jennifer, Legislative Attorney, American Law Division,
Congressional Research Service................................. 13
Gahima, Judge Gerald, Senior Fellow, U.S. Institute of Peace,
Former Judge, War Crimes Chamber of the Court of Bosnia
Herzegovina, and Former Deputy Chief Justice and Attorney
General of Rwanda.............................................. 7
Scharf, Michael P., Professor of Law and Director of the
Frederick K. Cox International Law Center, Case Western Reserve
University School of Law....................................... 10
Wald, Hon. Patricia M., Chief Judge, United States Court of
Appeals for the District of Columbia, (Ret.), and Former Judge,
International Criminal Tribunal for the Former Yugoslavia...... 3
APPENDIX
Prepared Statements:
Gahima, Judge Gerald......................................... 63
Scharf, Michael P............................................ 76
Skelton, Hon. Ike............................................ 49
Wald, Hon. Patricia M........................................ 52
Documents Submitted for the Record:
Comparison of Selected Procedural Rights in Criminal
Tribunals chart submitted by Jennifer K. Elsea............. 87
ICTY Rule 89 submitted by Hon. Patricia M. Wald.............. 113
Memorandum on the Application of Article 31, UCMJ, to
Battlefield Captures submitted by Jennifer K. Elsea........ 107
Questions and Answers Submitted for the Record:
Mr. Hunter................................................... 117
Mr. Skelton.................................................. 117
STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS
----------
House of Representatives,
Committee on Armed Services,
Washington, DC, Wednesday, July 26, 2006.
The committee met, pursuant to call, at 1:05 p.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. I want to
make this very short and sweet so we can get to the substance
of our hearing. And we are meeting to receive testimony from
witnesses regarding standards and procedures used in
international war crimes tribunals as they might relate to the
U.S. military commissions for detainees at the U.S. Naval Base
at Guantanamo Bay, Cuba. We have gone over it in previous
hearings and briefings, the path that led us to this point
where we are putting together a new structure that will allow
us to fight the war on terrorism expeditiously and nonetheless
avail a modicum of rights to the defendants in those
prosecutions.
And we have with us today the Honorable Patricia M. Wald,
Chief Judge, United States Court of Appeals for the District of
Columbia, retired. Judge Wald, thank you for being with us
today. We appreciate your presence.
Judge Gerald Gahima--and did I pronounce that correctly,
sir? Senior Fellow, United States Institute of Peace, former
Deputy Chief Justice and Attorney General of Rwanda.
Mr. Michael P. Scharf, professor of law and director of the
Frederick K. Cox International Law Center, Case Western Reserve
University School of Law. Thank you, Mr. Scharf, for your
appearance today.
And Ms. Jennifer Elsea, did I pronounce that correctly,
Elsea? Thank you. Legislative attorney, American Law Division
for our good old Congressional Research Service, which does
such a fine job of helping us to understand very complex
issues. We appreciate your attendance, ma'am, being with us
today.
So without further ado, let me turn to the distinguished
ranking member for any comments he wants to make, and then we
will get right to it. And I understand staff has got some side-
by-sides of some bodies of law with respect to these tribunals
to help to educate our members.
Incidentally, before we do that, I see Brian Bilbray, a
wonderful friend and great member, a former member, now a newly
re-elected member or newly elected member from California, from
San Diego, my old seat-mate, who has joined us as a member of
the House Armed Services Committee.
Mr. Bilbray, you are right there where you can look them
right in the eye. Thanks for joining the committee. I know you
have worked a lot of these issues, and you are coming in at a
time when we have a lot on our plate. Great to have you with us
and thanks for being on the Armed Services Committee.
Appreciate it.
With those brief remarks, let me turn to the distinguished
gentleman from Missouri, Mr. Skelton, for any remarks he would
like to make, and we will get right to our panel.
STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM MISSOURI,
RANKING MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Skelton. Mr. Chairman, thank you very much.
This is one of the most important hearings we are going to
have this year. I respectfully ask that my statement be put
into the record, but let me very, very briefly say we are here
as a result of the Hamdan case recently handed down by the
Supreme Court. I might also say the world is watching about
what we do, and it is good to have outstanding experts on war
crimes and war tribunals with us here today. This is just an
excellent opportunity for us.
As I understand, three of the panel members have
participated actually in war crimes tribunals, and we look
forward to your testimony. The laws of war are very important
and international law, and consequently, it is important for us
to hear from you.
I note that the side-by-side criminal tribunals are
reflective of, on the far left, the general court-martial that
we have here, the military court order, which is what was
handed down as improper by the Supreme Court, then the
Nuremberg trials, and then the last one, the far right is the
Yugoslav and Rwanda rules that were followed. They are of
course more up to date in the international sphere.
So we look forward to your discussion, and I want to thank
the CRS very, very much for the outstanding work that you did
in helping us compare because we are going to be doing a lot of
comparison in the days ahead. Thank you very much. I ask that
my statement be put in its entirety.
[The prepared statement of Mr. Skelton can be found in the
Appendix on page 49.]
The Chairman. Without objection, the gentleman's statement
will be taken into the record.
Incidentally, to all of our guests, all of your written
statements will be taken into the record so you can feel free
to summarize your statements. You don't have to follow them
exactly. And they will be taken into the record.
I have to go and make a very brief statement on the House
floor, but the fine gentleman from Colorado, Mr. Hefley, who
has just been in a heck of a bar fight, will want to tell you
all about that. Mr. Hefley is leaving this year. We have given
him lots of accolades, but he is the greatest rodeo cowboy who
ever graced the halls of Congress. I went up with him to the
Casey Tibbs statue there in the Cowboy Hall of Fame and with
Casey Tibbs, a great bronc rider on his bucking horse there in
bronze outside, and I was reminded that Casey Tibbs told me
Joel Hefley was a great cowboy. So if the gentleman will take
over. I will be right back.
Mr. Hefley [presiding]. I thank the Chairman for his kind
words except, as you can see, the horse won in this case. I
apologize for that, but that is not why we are here. So shall
we start?
Are you finished, Mr. Skelton? Shall we start.
Do you have an order you want to start, or start over here?
STATEMENT OF HON. PATRICIA M. WALD, CHIEF JUDGE, UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, (RET.), AND
FORMER JUDGE, INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA
Judge Wald. Thank you, Congressman, committee members. My
name is Patricia Wald, and I served for 20 years on the D.C.
Circuit Court of Appeals, 5 years as the Chief Judge. After
that, I was appointed to be the American judge on the
International Criminal Tribunal for the Former Yugoslavia
(ICTY) where I served between 1999 to the end of 2001.
I am going to very briefly, as I always make counsel do
when I used to be a judge, I am going to very briefly summarize
those parts of the rules and practices that I think will have
some relevance to the dilemma that you are facing in terms of
the proper procedures for military commission.
First of all, I do want to acquaint you with the background
of the ICTY, which has 16 judges, 16 permanent judges on it.
They are nominated by their member countries. For instance, I
was nominated by the United States, and they are elected by the
General Assembly.
The requirements for a permanent judge is that he or she
possess the qualifications required in their relative countries
for appointment to the highest judicial office. I am not quite
sure how that translates into practice, but it does mean that
the judges have to be in high regard by their countries and
that due account has to be taken in the overall composition of
the chambers for experience in criminal law, international law
and human rights laws.
Very briefly, the ICTY, which has now been in operation
since 1993, although its first trial was in 1996, has indicted
161 defendants; 95 proceedings have been completed; 48 are
serving or have served their sentences; 34 are awaiting trial;
11 are in trial; and 13 are pending appeal.
First of all, the rules of procedure in the ICTY, there is
a basic statute, but it is a very brief one, and the judges
themselves in plenary session by a majority decide the rules.
There are 125 rules which elaborate greatly on the statutory
provisions in the ICTY charter.
This way of promulgating the rules by the judges themselves
has allowed a great deal of flexibility for the judges as they
move along to use their experience to meet various problems
that arise and won't necessarily be contemplated every time.
The actual statute of the ICTY does make certain provisions
for rights of defendants, basically that their hearings be
public, that the accused be present at the hearings, there be a
right to counsel, appointed if necessary, to examine witnesses,
not to be compelled to testify, privilege against self-
incrimination and time to prepare a defense.
Now let me briefly talk about the rules I think do have
relevance to your dilemmas. The first would be the rules on
interrogation. Here I would remind you that, in the ICTY, the
set-up is such that a suspect or an accused is not taken into
custody. The ICTY has no police force, so none of the suspects
accused are taken into custody until the prosecutor either
files an indictment, in the case of an accused, or he asks the
court to grant him provisional detention for a short period so
that he can question the witness so that a judge has to
actually pass before anybody can be brought into custody.
Once he is brought into custody, let's say the suspect, or
if there is an indictment, the accused, has to be informed of
the right to counsel and his right to an interpreter if he
doesn't speak either French or English, which are the languages
of the tribunal, and his right to remain silent.
The interrogations, all interrogations by the prosecutor
are recorded, and the accused or his counsel gets a copy of it.
I note here that the International Criminal Court has an
additional provision which forbids any kind of coercion, duress
or threat during an investigation.
At the tribunal, we had a provision that required that,
while an accused was in detention awaiting trial, he had to be
brought before the judge in person every 120 days, and then he
was personally asked if he had any problems about his
treatment, if he had been in any way abused. You will pardon me
a short story, because while I was there for two years, the
worst accusation that was brought against detention conditions
at the ICTY was that the Serbian prisoners couldn't get Serbian
TV; they could only get the Bosnian form of TV.
So I believe that the ICTY has a pretty good record. I know
of no accusations of anybody being accused in detention, and in
fact, I visited the detention facilities myself.
That is in terms of investigation. Now there is a provision
in the rules for the exclusion of evidence that was obtained
through means that are not just illegal but are in the words of
the rule antithetical to the integrity of the proceedings or
unreliable because the means by which they were obtained. That
is rule 89(d). I have a complete copy of the rules here which I
will gladly give your counsel at the end of these hearings.
The rules tell the judges to exclude evidence even if its
probative value is outweighed by the lack of fairness of the
trial or the integrity of the proceedings. In other words, I
think this is a direct quote, No evidence is admissible if it
is obtained by methods which cast substantial doubt on the
reliability--on its reliability or if it is antithetical to or
would damage the integrity of the court.
Now a defendant in the pretrial period gets from the
prosecutor a summary of all of the evidence that the prosecutor
is going to use at trial, the names of all the witnesses that
the prosecutor will call, a summary of their testimony and
whether they will testify live or recorded. The defendant also
gets all statements of the prosecution witnesses, and he can
inspect the exhibits, the objects that may be introduced in
trial by the witnesses.
There is also an equivalent to our Brady rule, which says
that the prosecutor must disclose evidence that militates
against the defendant's guilt or is in mitigation of his
conduct or affects the credibility of the plaintiff's
witnesses.
Now, obviously, in any war crimes tribunal as in military
commissions, there will be some kinds of evidence that the
prosecutor will not want to disclose. Under rule 66 of the ICTY
rules, if the prosecutor thinks that certain evidence in his
possession will hurt an ongoing investigation or the security
of a particular state--and we had some cases like that, some of
the states that have been involved in the Bosnian conflict did
have evidence which would be relative to some of the accused
but obviously had problems with disclosing that--the prosecutor
can go in an ex parte hearing before the judges of the
tribunal, and he can ask not to have that disclosed.
Several things can come out of that. Either something
comparable to our CIPA, Classified Information Protection Act
here, that something is worked out whereby a redacted version
is put in the record or a summary is put in the record or there
is a stipulation as to what the evidence would show. Something
that will be protective of the actual classification may
result.
The bottom line, however, is that nothing can be put into
the trial record if it isn't disclosed to the defendant. In
that respect, I just want to comment that a good friend of mine
who is the deputy prosecutor at the ICTY--that is the number
two person--I wanted to make sure that my reading was correct
or that nothing had happened in the ensuing years. I have been
away from the ICTY for several years, so I e-mailed him, and I
said, am I correct in reporting that nothing can go into the
record on which a conviction can be based that has not been
disclosed to the defendant, and I got back an e-mail which I
would be glad to share which said that is correct.
Now there is another provision in there which says, rule
70, if that somebody gives to the prosecutor confidential
information and says, I don't want this put in the record and I
don't want my identity disclosed, I am only giving you this so
that you can use it to generate your own kind of information, I
think around here we call it fruit of the tree or something to
that equivalent, then that is a rule, and it is followed
insofar as the prosecutor can use that for leads, but that
information itself cannot be put in the record if the person
who gave it doesn't waive confidentiality and if, in the final
analysis, it is not disclosed to the defendant.
Now I will end very briefly. There are many, many witness
protection measures. ICTY proceedings are televised, and you
can have a person's voice altered. You can have the person's
physical identity changed, cubes on the screen, et cetera. You
can have pseudonyms used. You can have orders of the trial
court saying that the identity can't be disclosed to anybody
but the defense team. But the final analysis is the actual
identity of the witness must always be disclosed eventually to
the defendant.
In the very first case, the court in the Tadic case
suggested, in dicta, that was not true if the risk to the
witness of being retaliated against in his or her home village,
et cetera, was so great. They didn't actually rule that way.
This caused such a furor, mostly in the United States. Monroe
Lee, who is a very, very renowned former Americam Bar
Association (ABA) person wrote Law Review articles. The
American Bar Association took resolutions, et cetera. The
result has been that it is not the law in the tribunal.
Eventually--it may be delayed, the identity of a prosecution
witness, but it can never be actually withheld.
Two things are different in the ICTY, from my experience,
and the American courts. That is, there are broader kinds of
evidence that can be used. You can, of course, have live
witnesses, and that is preferred, but you can also have a video
record. I have participated in trials in which the witness was
being questioned by video, but the set-up is such that the
people in the courtroom, including the judges, the defendant,
the prosecutor, have an ability to question back and forth even
though the witness may be someplace else. That has proved to be
very useful for witnesses who don't have to be brought from far
away locations.
There is also provision for depositions. In the United
States, a deposition can only be used in a criminal trial if
the witness is unavailable. In the ICTY, that is not
necessarily true, but the defendant and his counsel have to be
available at the deposition. Prior transcripts of the same
witness--this very often happens when one witness turns out to
be a key witness in several trials--prior transcripts of a
witness can be used in a later trial, but only, again, if the
defendant or his counsel have had a chance to cross-examine the
witness either in the first trial or he becomes available in
the second trial.
There are also some provisions on the kind of testimony
that can be used in gender or sexual cases, but unless you are
specifically interested, I won't go into those here.
My last point is that you will see very often quoted that,
in the international trials, the only restraint on evidence is
that it must be relevant and probative. There is a rule in the
ICTY which says the trial court may listen to any evidence if
it is deemed relevant or probative, but that is not the end of
the story. There are other rules. The other one I have
mentioned already, that if it is found to be antithetical to
the integrity of the proceeding or unreliable, the court will
and should keep it out.
But there is a very important rule which was arrived at
while I was there when I sat on the rules committee, and that
is something called rule 92bis, which says, where an attempt is
made to put the written testimony, the written statement of a
witness into direct evidence as opposed to the witness
appearing live, and sometimes that may seem to be necessary,
that there is a provision for doing that, but the important
thing I think is that that can never be done when the evidence
goes to the role or the conduct of the accused as charged in
that proceeding.
There are many provisions in that rule which suggest that
it could be used for cumulative testimony, for background,
political, military background or history for the impact on
victims for sentencing, for democratic surveys. Lots of
shortcuts that you don't actually have to bring the witness in.
But if you get to the core of the accused's role or conduct in
the proceedings, you may not use the written testimony; you
have to use one of these forms of live testimony.
The very last point is, there is more indulgence in the
ICTY for hearsay as it comes into live testimony. For instance,
a witness gets on the stand live but says, well, I was told by
15 people in my detention camp that X was the worst commander
or the worst commander of a detention camp and that he
committed abuses against people.
There is more hearsay, but I will say this about it: One,
the judges are very cautious about that kind of hearsay, and in
my experience, they usually question the live witness very
carefully about the circumstances in which he or she heard that
hearsay.
There is also--they follow some decisions of the European
Court of Human Rights which say you cannot base a conviction on
that kind of hearsay. There must be live or more direct
testimony outside of that kind of hearsay on which you are
basing the conviction, and of course, it can be thrown out if
it is unreliable.
The judges generally operate on a continental mode, which
says that a judge can let in more testimony including some
hearsay but then has to move very carefully in terms of the
weight that is given it. This follows a continental mood and is
based upon the notion that here in the States, we have juries
and lay people that supposedly--although I have never been
entirely convinced of this--lay people don't have the same kind
of experience or astuteness in picking the truth from the
nontruth that professional judges do.
So the bottom line I would say is the differences between
our system as I experienced it here and the ICTY. The defendant
must be present at all point in the proceeding and allowed to
challenge the evidence except for the two exceptions I gave
you, background kind of evidence under 92bis, which doesn't go
to role or conduct of the accused.
There is provision made for exclusion of evidence that is
obtained by methods which are considered antithetical to the
integrity of the proceeding. There is more room for alternative
methods of proof like depositions, video records, that kind of
thing so long as the defendant has a right to challenge the
proceeding and to be there.
And I think I will leave it there. Thank you.
[The prepared statement of Judge Wald can be found in the
Appendix on page 52.]
Mr. Hefley. Thank you very much, Judge Wald.
Judge Gahima.
STATEMENT OF JUDGE GERALD GAHIMA, SENIOR FELLOW, U.S. INSTITUTE
OF PEACE, FORMER JUDGE, WAR CRIMES CHAMBER OF THE COURT OF
BOSNIA HERZEGOVINA, AND FORMER DEPUTY CHIEF JUSTICE AND
ATTORNEY GENERAL OF RWANDA
Judge Gahima. Thank you, Mr. Chairman, members of the
committee for inviting me to participate in this hearing.
Mr. Hefley. Would you pull the microphone a little closer?
Make sure it is turned on there.
Judge Gahima. Thank you. I would at the outset wish to
clarify that the views I express are my own and do not reflect
the views of the United States Institute of Peace.
My experience, I have previously been involved in
supervising prosecutions of the Rwanda genocide and supporting
the work of the International Criminal Tribunal for Rwanda
(ICTR) in that regard. I have also worked with states like
Belgium, Switzerland, Canada in their efforts to investigate
crimes arising from the Rwanda genocide. And I have been
involved in the establishment of the War Crimes Chamber of the
Court of Bosnia.
The problem that Congress seeks to address is how to
reconcile the right to a fair trial with the necessity for
protecting the rights of witnesses and protecting national
security in the context of the war on terror. So I will address
this issue from three perspectives. I will address the need for
compliance with fair trial guarantees, the need to safeguard
national security, and the issue of protection of witnesses.
The right to a fair trial is a fundamental norm of
international human rights law. This right starts from the time
the state takes--starts taking action against a suspect, and
that right continues from the investigation stage up to the end
of the trial.
During trial, a suspect's right to a fair trial involves a
right to a fair hearing: The hearing has to be public, a right
to the exclusion of evidence which is received as a result of
torture or other compulsion, a right for a person to defend
himself in person or through counsel, and a right to be present
during trial.
I realize of course that these rights cannot be considered
from the context of the war on terror that is ongoing.
I would like to discuss, for example, the issue of the
right of an accused person to be present during trial. There is
no absolute prohibition on trials in absentia in international
law, but it is very clear that trial in absentia would
compromise the ability of an accused person to exercise other
rights, such as the right to defend oneself, to prepare a
defense, the right to communicate with counsel, the right to
examine witnesses and other issues.
The statutes of the Rwanda tribunal and the Yugoslav
tribunals prohibit trials in absentia, so subject to possibly
very rare exceptions, it is difficult to consider how there
would be a fair trial in the absence of an accused person.
The other issue that arises with regard to the right to a
fair trial is the question of hearsay evidence. Here, the
common law systems like the U.S. defer markedly from civil law
systems where by and large hearsay evidence is not prohibited.
It is admissible. It is just a question of reliability. And as
Judge Patricia Wald has indicated, it is always evidence that
is admitted with caution, but it is admissible.
In my view, the greater threat to a defendant's right to a
fair trial is not the admissibility of hearsay evidence but
rather the risk that some evidence may be used which has been
obtained illegally.
In the context of the war on terror, a lot of defendants
and witnesses who may be testifying against them will have
passed through the hands of state agencies in many different
countries where torture may have been practiced, so I think
really what people ought to focus on when considering evidence
in these cases is whether the evidence was voluntary and
appropriate and not obtained illegally.
The other issue that I wish to discuss is the question of
national security and whether it can have a bearing on
curtailment of the rights of a defendant to a fair trial as
they exist under many legal systems. The jurisprudence of the
ICTR, the one of the Yugolsav tribunals recognizes that there
are legitimate security concerns for states when they are
dealing with courts. The rules of the two courts permit the
conduct of proceedings in camera and restriction of submission
of such certain types of evidence, and there have been cases,
especially like the Blaskic case, where some limitations of the
right to full disclosure have been entertained by the two
courts, and again, these are not blanket exclusions of
evidence.
My point is that they are legitimate concerns which may
lead to curtailment of disclosure of evidence that ordinarily
would have been given in open court.
The third issue that I will address is the issue of witness
protection. The dangers that witnesses face cannot be
underestimated. Under civil law systems, there are different
ways that may be used to protect the witnesses. Again, it is
more of an exception than a rule, but it is possible under some
legal systems of the civil law tradition to reduce the
disclosure to the defense, not exclude evidence totally, but,
for example, limit the time within which the defense may have
that evidence.
For example, at the ICTR, they must--the prosecution must
disclose every information at least 21 days before trial. So as
my colleague has mentioned, there are opportunities for
preserving the anonymity of an accused person, but again, this
is under very stringent conditions.
In conclusion, and, again, as I indicated, the views I
express are my own, but I believe that, first, on the right to
be present, the exclusion of defendants from proceedings
violates clearly the right to a fair trial. It is difficult to
conceive where you could have a fair trial without the presence
of an accused in the hearing of his or her own case.
Two, I think hearsay evidence of probative value should
continue to be admissible subject to appropriate safeguards to
ensure that it has not been obtained through torture or
compulsion.
Three, I think this legal system should consider the
possibility of using affidavit evidence, which is admissible in
other jurisdictions.
Four, I think that consideration should also be given to
making use of appropriate mechanisms for protection of
witnesses, such as in camera proceedings and, in rare cases,
preserving the anonymity of witnesses.
Five, I think the current rules relating to disclosure
could be reviewed to minimize risks posed to witnesses or to
national security while providing defendants with enough
information to enable them to answer the charges they face.
Six, I also think that the rules of procedure--rules of
procedure ought to be developed to discourage and minimize
attempts by defendants to abuse proceedings or to abuse the
criminal justice process in general, as has been the case in
some war crimes tribunals.
Again, Mr. Chairman, thank you for providing me with this
opportunity to discuss these matters. Thank you.
[The prepared statement of Judge Gahima can be found in the
Appendix on page 63.]
Mr. Hefley. Thank you, Judge.
Mr. Scharf.
STATEMENT OF MICHAEL P. SCHARF, PROFESSOR OF LAW AND DIRECTOR
OF THE FREDERICK K. COX INTERNATIONAL LAW CENTER, CASE WESTERN
RESERVE UNIVERSITY SCHOOL OF LAW
Mr. Scharf. Mr. Chairman, thank you. I am Michael Scharf,
Professor at Case Western Reserve University School of Law and
director of its International Law Center. I have been asked to
testify today as an expert on the Nuremberg and Tokyo tribunals
as well as the modern international tribunals which you have
been hearing about.
During the first Bush and Clinton Administrations, I served
in the Office of the Legal Advisor at the State Department and
was assigned the job of helping to draft the statutes and rules
of the Yugoslavia tribunal, the first international tribunal
since World War II.
Since leaving the State Department, I have authored seven
books about international tribunals, including two that have
won national book awards. And the Case Western Reserve
University School of Law War Crimes Research Office, which I
established several years ago, currently provides research
assistance to five international tribunals, including the
Yugoslavian Tribunal, the Rwanda Tribunal, the Special Court
for Sierra Leone, the International Criminal Court, and the new
Iraqi High Tribunal.
I want to thank you for the opportunity to address the
committee on the international standards of due process that
are required for military commissions under international law.
Last month, as we all know, the Supreme Court ruled that the
Uniform Code of Military Justice had conditioned the
President's use of military commissions on compliance with the
rules and precepts of the Laws of Nations, including the due
process guarantees of Common Article 3 of the Geneva
Conventions, and also noted in that opinion were the guarantees
of Article 75 of Additional Protocol 1 to the Geneva
Conventions.
Now, the Supreme Court held that military commissions
specifically violated these required international rules by
first of all authorizing the exclusion of the defendant from
his own trial; second, by permitting unreliable evidence such
as hearsay and evidence gained through unlawful coercion;
third, by permitting anonymous witnesses; and finally, by using
a review procedure that did not amount to an appeal to an
independent higher tribunal.
Now the government's witnesses before both the Senate
Judiciary Committee a couple of weeks ago and this committee
have drawn on the precedence of Nuremberg and Tokyo and also of
the modern international tribunals to argue that these military
commission practices are actually permitted or at the very
least not clearly prohibited under international law. They
paint a misleading picture, and my main purpose today is to
clarify this point.
They point to Nuremberg and Tokyo, which tried some
defendants in absentia, admitted unsworn affidavits and
hearsay, and granted no rights of appeal. And let me say, I am
a fan of the Nuremberg Tribunal because, considering the
alternative 60 years ago of having a firing squad for the
Nazis, I think they did a very good job of bringing some
justice to a very difficult time without any precedent.
And on my own faculty, we have Henry King who was, at age
25, the youngest prosecutor at Nuremberg and, at 87, the oldest
member of our law school still teaching.
But we have to recall that Nuremberg was severely
criticized for these procedural shortcomings. Supreme Court
Justice William O. Douglass called the trials,
``unprincipled,'' and his colleague, Chief Justice Harlan Fiske
Stone, characterized them as a, ``high-grade lynching party.''
In the years following Nuremberg, the United States led the
efforts to address the procedural deficiencies of the world's
first international war crimes tribunals, and this resulted in
the creation of Common Article 3 of the Geneva Conventions,
Article 75 of Additional Protocol 1, which although the U.S.
has not signed, has declared to be representative of customary
international law, and these were elaborated in the statutes of
the Yugoslavia tribunal and the other tribunals.
Now the story of the drafting of the Yugoslavia tribunal
and the Rwanda tribunal is interesting to show that the United
States' fingerprints and influence is in all of these
international standards. When we were asked to provide
suggestions for the rules of procedure of the Yugoslavia
tribunal, the United States was the only country that gave them
a hundred page draft full of annotations, and ultimately, the
rules that the judges adopted were based 99 percent on the
model that the United States provided.
When the Rwanda tribunal was created a year later, it used
the same rules of procedure, with minor modifications, same,
too, with the Sierra Leone tribunal, the International Criminal
Court in 1998, and even the Iraqi high tribunal uses these
basic fundamental procedures that the United States insisted on
because we said these were the baseline due process rights that
any war crimes proceeding had to consist of.
The international tribunals themselves have held that
international law requires certain minimum due process
guarantees for any international or domestic war crimes trial,
specifically including the right to be present during the
trial, the right of confrontation, the right to disclosure of
exculpatory evidence, and the right to appeal to an independent
higher court, the very things that the Supreme Court pointed
out were wrong with the U.S. military commissions. And even the
Iraqi high tribunal prosecuting Saddam Hussein guarantees these
fundamental rights.
Thus, recourse to Nuremberg and Tokyo's experience cannot
today be used to justify departure from these rights. The law
has evolved in the last 60 years, and there is no doubt that
the United States is bound by it.
But what about the Yugoslavia tribunal's use of anonymous
witness? Judge Pat Wald mentioned this a few moments ago. She
called it dicta. The story is a little bit more complicated. It
is not actually dicta. What happened was, in the very first
case, the Tadic case, they did not have an operational system
for protecting witnesses, and in a very controversial 2-1
decision, they decided that one witness, witness K, would have
his identity not disclosed to the defendant or the defense
counsel.
There was a strong dissent in that case by Judge Stephens
of Australia who cited the case law of the European Court of
Human Rights which had consistently held this was a violation
of due process. His dissent said: The right to examine or
cross-examine witnesses guaranteed under international law
cannot be effective without the right to know the identity of
adverse witnesses.
Ultimately, the same Yugoslavia tribunal panel rescinded
the decision to protect the identity of witness K, allowed the
defendant to know who the identity of that witness was,
therefore Pat Wald describes it as dicta, and the tribunal said
they would never again try to protect the identity of a witness
from the defense.
In fact, in the case of Blaskic, the tribunal made clear a
year later that witness anonymity was only appropriate during
the pretrial phase and that a witness's identity must always be
disclosed to the defendant a reasonable time before testifying.
Now that doesn't mean that it has to be disclosed to the
world. You have heard that there are all sorts of protections
to keep the witnesses' identity from the public, but for a fair
trial, the defendant needs to know who it is that is
confronting them.
Thus, the Yugoslavia tribunal precedent does not in fact
support the use of anonymous witnesses in the military
commissions but rather supports the Supreme Court's conclusion
that this practice is in violation of international law.
You have heard today about the international tribunal's use
of hearsay evidence. The government witnesses have similarly
misled the committee about the Yugoslavia tribunal's use of
hearsay, describing it as everything goes. In the Kordic case,
the tribunal adopted a standard that was actually similar to
our own Federal Rules of Evidence Number 804(b)(5) requiring
before any hearsay evidence could come in that the tribunal
assess the, quote, ``indicia of reliability,'' and the tribunal
says that such hearsay evidence is always to be considered with
caution and substantially discounted.
What the tribunal actually does, speaking with judges and
clerks, is literally they take a different colored pen in these
cases and highlight the evidence that was hearsay evidence and
the evidence that was direct testimony, and in the recent
Semanza case, the tribunal actually described some evidence as
coming in as hearsay evidence, and therefore it was discounted.
Now the tribunals feel that they can allow hearsay evidence
to come in because the judges are not lay jurors; they are
people with a lifetime of judicial experience, like Judge Wald,
and therefore they understand the frailties and the
susceptibility of hearsay evidence.
In contrast, the military commissions are made up of
military officers who are not usually even legally trained, let
alone seasoned judges, and therefore hearsay evidence should, I
think, be used with utmost caution, if at all.
Let me turn to the issue of torture evidence. The
prohibition against the use of evidence obtained by torture but
also lesser forms of inhumane treatment, including water
boarding, is one of the, quote, judicial guarantees which are
recognized as indispensable by civilized people for purposes of
Common Article 3 of the Geneva Conventions.
As Pat Wald described, the rules of procedure of the
Yugoslavia tribunal but also every other modern international
tribunal and even the Iraqi high tribunal provide for the
exclusion of such evidence. A clear statement by Congress
rejecting the use of such evidence by military commissions
would, I believe, first remove a stain clouding the legitimacy
of these important trials in the eyes of the world and, second,
deter practices that are abhorrent to both American values and
international law.
I understand that some of the members of this committee may
favor the idea of responding to the Hamdan decision by simply
enacting legislation that would give congressional
authorization to the President's existing military commission
system without actually changing any of its provisions. And it
is absolutely true that the Supreme Court has recognized that
Congress can override the requirements of international
treaties, including the Geneva Conventions, if it enacts a
later-in-time statute that manifests a clear intent to violate
these venerable international humanitarian law treaties.
But Congress has always been very cautious and reluctant
about using this special power as it renders the United States
in breach of our international obligations with often serious
international legal and diplomatic consequences. Do we really
want to be the only country in the world to go on record as
abrogating the Geneva Conventions?
If we try detainees in violation of the internationally
required fair trial procedures, we increase the risk that our
own troops and those of our allies, such as Israel, will be
subject to similar mistreatment at the hands of others.
The international due process standards that I have been
discussing today do not rise to the panoply of rights afforded
in a U.S. domestic criminal court proceeding. They do, however,
provide enough protections to remedy the deficiencies in the
existing military commissions.
The internationally required standards may make it somewhat
harder to obtain convictions in some cases, however, in the
broader scheme of things, we lose far more than a few trials if
we insist on departing from the due process rights required by
the Geneva Conventions and international law.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Scharf can be found in the
Appendix on page 76.]
Mr. Hefley. Thank you very much, Mr. Scharf.
Ms. Elsea.
STATEMENT OF JENNIFER ELSEA, LEGISLATIVE ATTORNEY, AMERICAN LAW
DIVISION, CONGRESSIONAL RESEARCH SERVICE
Ms. Elsea. Good afternoon, Mr. Chairman and members of the
committee. My name is Jennifer Elsea, and I serve as a
legislative attorney at the Congressional Research Service. My
work over the last five years includes coverage of many topics
that may have a bearing on today's hearing, including military
commissions, war crimes, tribunals, military justice and the
Geneva Conventions.
I am honored to have the opportunity to participate as a
part of this panel. I don't have a prepared statement as such.
Instead, I have prepared for the committee a chart comparing
the procedural safeguards available in courts-martial with the
rules provided in the Department of Defense Military Commission
Order Number 1 and subsequent orders and instructions pursuant
to the President's Military Order of 2001.
The chart also provides information about international
criminal tribunals, including the charter and rules controlling
the post-World War II International Military Tribunal Convened
at Nuremberg.
The last column summarizes the relevant procedural rules
for The International Criminal Tribunal for the Former
Yugoslavia and the International Criminal Tribunal for Rwanda,
which are nearly identical.
I have made a couple of last minute revisions to the chart
to reflect the role of the presiding officer under the Military
Commission Order Number 1, and I ask that a revised chart be
placed in the record.
This chart is a result of two CRS products that I have
prepared for Congress----
[The information referred to can be found in the Appendix
on page 87.]
The Chairman [presiding]. Without objection, we will take
it into the record. Go right ahead.
Ms. Elsea. This chart is the result of two products that I
prepared for Congress in connection with issues surrounding the
treatment of detainees. The first report compares procedural
rules in Federal courts, courts-martial, military commissions
as they had been previously established, and the Rome Statute
of the International Criminal Court.
The second, which I have updated in light of the Supreme
Court's Hamdan decision, compares courts-martial, military
commissions under the President's Military Order, and some
legislative proposals for authorizing military commissions.
The chart I have provided for the committee is organized
around a basic set of rights emanating from the U.S.
Constitution which correspond roughly with the basic rights
recognized as indispensable by most societies and the
international community as a whole. The terminology does not
always match up perfectly, but analogous concepts can usually
be found, although there may be some overlap.
The chart is necessarily incomplete. What is not included
fills many hefty volumes, as Professor Scharf's students can no
doubt attest. Procedural rules are not inflexible and can often
give rise to multiple exceptions to be applied in the interest
of justice.
Finally, I have not undertaken here to provide a complete
analysis of structural factors that may have a bearing on how a
particular tribunal operates.
Despite these limitations, I hope the committee will find
the chart useful for today's deliberations and during its
subsequent work on this issue. I will be happy to add rows or
columns the members believe may be useful, and I am happy to
answer any questions within the scope of my knowledge. Thank
you.
The Chairman. I thank the gentlelady for her comments.
And folks, thank you for your testimony.
I want to thank Mr. Hefley for sitting in here. I will
reserve my questions until the end here.
Mr. Skelton.
Mr. Skelton. Needless to say, I am concerned we need to be
tough on terrorists and those who violate international law. I
am also concerned about how our soldiers might be treated if
captured. I will limit my questions to Professor Scharf, if I
may. I must thank you, Ms. Elsea, for the excellent job and
side-by-side. That is, frankly, very helpful to our committee.
Professor Scharf, I hand you a blank sheet of paper. In
light of the Hamdan case, would you tell us how you would
instruct a body, a commission or tribunal to try these people
who allegedly have committed crimes against the law of war?
Mr. Scharf. Thank you, Congressman.
To answer that, what we have to recognize is that the
different systems of justice that we have been discussing today
fall on a spectrum. On the one side is the U.S. Federal
District Court proceedings, and I do not think that those are
appropriate for trial of the al Qaeda detainees. It would be
very difficult, if not impossible, to get convictions under
those standards.
Next to that is the court-martial proceedings, and I know
that there have been witnesses both before the Senate Judiciary
Committee and here that have made the argument that we could
just use the court-martial proceedings for al Qaeda, and I
think actually with some minor changes that that probably would
be workable. What I have been talking about are the
international tribunal standards and in particular those that
are deemed most fundamental, and what I would suggest is that
you could take the current model that the President has and
just make four minor changes and bring those up to the
standards of international criminal procedures, those very
things that the Supreme Court identified and which I have been
talking about today, and you could make that a workable model.
Then at the lowest level is the current procedures that the
military commissions employ, which have been held by the
Supreme Court to violate the Geneva Conventions; and although
you have do have the option to approve those, what you would be
doing is sending a signal to the world that the United States
does not care about the Geneva Conventions, the first country
to ever publicly do that.
Mr. Skelton. What, quickly, would those four exception be?
Mr. Scharf. First of all and most importantly, the
defendant has to be present at his trial. And I know that
Senator Specter over on the other side of the road has proposed
that something similar or identical to the Classified
Information Protection Act be used so that when you have a
situation involving sensitive sources of methods the judge of
the trial can decide if the evidence is clearly relevant and
exculpatory. If that is the case, then the trial can only go on
if the prosecutor agrees either to allow the defendant and
defense counsel to see that evidence, to be present and
confront those witnesses, or if they will make a stipulation of
fact which is an alternative that makes it harder to get a
conviction but is successful in protecting sources and methods.
All right, the second thing is the right of appeal. The
military commissions do not have a right of appeal to an
independent court system. International law has deemed this
very important. We do have the U.S. Court of Military Appeals
just down the street. A former colleague of mine is one of the
judges there. I think it would be very appropriate if the final
decisions of the military commissions both in terms of facts,
as the case may be a miscarriage of justice, but more
importantly in terms of the law were appealable to an
independent judicial body. So that is the second most important
thing.
Third, when we talk about the kinds of evidence that are
excluded, the current system allows hearsay to just come in
without any restrictions. The international tribunals have
allowed hearsay in, as I have said, but created a lot of
restrictions. I think it would probably be most appropriate for
the military commissions, because they are not seasoned judges,
to have a stricter hearsay rule something like the UCMJ has,
but at a minimum they should have the rules that the
international tribunals have which properly characterized only
allowed hearsay in with caution and with special indicia of
reliability and only use those in the strictest sense and
discount their probative value.
Then, finally, and very important as well, is the so-called
torture evidence. Although the military commissions said on the
eve of the hearing before the Supreme Court that they would not
allow torture evidence in, they didn't make a similar finding
for evidence that does not fall into the definition of torture
but would in fact fall into the definition of inhumane or
degrading treatment; and the international tribunals do not
make that distinction. If it is going to be something that has
been coerced out of you through water boarding or some other
heinous practice, even if it does not technically cross the
threshold of torture, the international tribunals will exclude
it and so, too, should the military commissions.
Mr. Skelton. Thank you so much.
The Chairman. The gentleman from Colorado, Mr. Hefley.
Mr. Hefley. I will pass, sir.
The Chairman. Dr. Snyder, the gentleman from Arkansas.
Dr. Snyder. Thank you, Mr. Chairman. Thank you for getting
yet another group of people with their varied perspectives on
this challenge before the Congress and the American people.
I have two questions. With the exception of our friend from
the Congressional Research Service, you all are here today
because of your expertise in international tribunals. Let me
phrase this how I want to phrase it. We are not creating an
international tribunal. We are creating an extension of U.S.
law for dealing with captured detainees controlled by the
United States on a U.S. military facility. This is not a U.N.
Operation or a NATO operation or an international operation.
These are people who are to be tried under whatever law as
conceived by the U.S. Congress without sign-off by anyone else.
Now does that--maybe I will just leave that as a comment
and ask my question, if you all want to comment on that.
Because it seems like we are in a different posture when
multiple nations are deciding to prosecute war criminals from
any country, yet they have to come together because they are
not going to just choose one nation's law if there are 50
nations involved. They are going to create an international
tribunal. That seems like a little different situation than
what we are doing here.
My question is this, and it has to do with, I guess, this
bundle of sticks that we call rights or protections; and it
seems like there is two approaches to it. Approach number one
is what I will call more the Lindsey Graham approach, which is
we start with a big bundle of sticks that all our men and women
in the United States military uniform have, start with that big
bundle of protections under the law and then take some of them
away and say, these few sticks here we are going to modify
somewhat in order to deal with the detainees that are not U.S.
citizens.
The other way to go is to start with no sticks in the
bundle and say, here is stick number one, the right to
challenge the accused, here is stick number two, and come up
with those sticks that we think are most important and say,
here is the bundle of sticks, of protections that we are going
to give to the detainees.
I would like you-alls thoughts if you think that is an
accurate description in the pros or cons of those two different
ways of looking at it. Judge Wald.
Judge Wald. Initially, Congressman, let me say that when
the President's first order came down very soon after 9/11
which established the military commissions, and subsequently
there were several other orders which defined the crimes that
would be tried by the military commissions and the elements of
those crimes and later on the rules and practices, it was very
clear in those instructions that what the military commissions
were being set up to do was to try persons for violations of
international law, not for violations of our national law.
If one goes back to look at those orders, you will see that
that the jurisdiction of the military commissions are crimes of
war--well, it is all crimes of war. There are one or two
additions, and I think one or two might have some roots of the
subsidiary ones in national law, but the basic core of crimes
that are being tried are not crimes emanating from our national
criminal code or our national laws. They are crimes emanating
from international law as defined in the way, sometimes
frustrating, that international law is defined.
So I think that having been established, there is also in
some of those instructions, if I recall correctly, an admission
that the way that they will be interpreted will in turn be
based upon international law, which would include at least as
part of that the way in which international crimes have been
construed and interpreted by international tribunals but other
forms of evidence as well.
So I think your question, which is a very good one, raises
the second question, if these commissions are set up to enforce
international law as they say they are doing--in other words,
they are crimes of war, war crimes, under the conventions that
we signed and under customary international law which binds all
nations, are we at liberty--well, we certainly--Congress can do
whatever it wants, but let's say should Congress take the
substance of these international crimes and more or less
relegate or abandon the parts of international humanitarian law
which lay down certain rights in the conventions, most of which
we have signed, that say what the rights and the procedures
should be in trying those crimes.
Judge Gahima. I am of the opinion that we do not need to go
to the drawing board to reinvent the wheel. Basically, the
international human rights mechanisms that exist have provided
for these rights. This country is a party to many treaties that
make provisions on the rights that defend us in criminal
proceedings, are entitled to treaties like the International
Covenant on Civil and Political Rights, the Universal
Declaration of Human Rights. Many of the provisions of these
treaties have been declared to be reflective of customary
international law, and I believe that that complies with these
rights, is an obligation that this country has, and such
compliance or division from these obligations should be an
exception rather than a rule, in fact, like the International
Covenant on Civil and Political Rights provides that there are
certain rights that you cannot derogate from and there is a
procedure for derogation.
So, in conclusion, I do not think that we really ought to
reinvent the wheel. There are obligations that this country has
under international law, and those obligations ought to be
respected to the greatest extent possible.
Thank you.
Mr. Scharf. I would like to just add briefly, because this
is a very important question, that in the Hamdan decision the
Supreme Court considered this and noted that historically there
have been recognized three types of military commissions: those
that govern crimes of our own troops--that is not this--those
that govern crimes in an occupied territory--again, that is not
this situation--and then the final category which this does
constitute are war crimes under international law. And there
the Geneva Conventions provide both the substantive crimes and
the required procedural protections.
Therefore, if this Congress were simply to say, well, we
define this as not covered by the Geneva Conventions, it is
just a domestic issue, it would nonetheless be seen in the eyes
of the rest of the world as an abrogation of the Geneva
Conventions.
Dr. Snyder. May I ask a follow-up?
The Chairman. Go right ahead.
Dr. Snyder. The inventing of the wheel, it seems like we
have two wheels already invented. That is what I was trying to
get at, Mr. Scharf. Wheel number one is the international
tribunal of which our military lawyers that are going to be
doing these cases, both prosecuting and defending, have
probably almost no experience; and wheel number two is working
under the Manual for Courts-Martial under the UCMJ, which they
have an abundance of experience. Both of them I think have the
appropriate number of bundles of sticks in the bundle; and I am
trying to figure out which wheel is the direction that we
should go, because we have two wheels invented, do we not?
I am with you. We should not be--a lot of this is the value
of sending a message to the world that we are going to protect
our country, but we are going to do it in such a way that we
are respectful of the international rights of these people. But
it seems there are two different basic ways to go, is there
not?
Mr. Scharf. In fact, there is more than two ways. I think
that when it comes to war crimes the world has recognized that
is not a one-size-fits-all phenomenon. They have the
international tribunals created by the Security Council, the
hybrid tribunals created by the United Nations and the
individual countries. They have internationalized domestic
tribunals as in Bosnia and Iraq. There are military commissions
of various guises.
So, yes, we have two traditional models that we are getting
a lot of experience with, but that does not mean we are stuck
in those two models. It does not mean that we cannot borrow
some of the sticks and share. And, in fact, there is a lot of
that going on in the international community.
Dr. Snyder. Thank you, Mr. Chairman, for your indulgence.
Mr. Chairman. I thank the gentleman.
The gentleman from Michigan, Dr. Schwarz.
Dr. Schwarz. Welcome to the distinguished members of the
bar who are here. I am not a member of the bar, distinguished
or otherwise. I am by trade a physician and surgeon.
I have been to Guantanamo Bay twice, once with the
distinguished chairman of this committee, another time at the
request of the Office of the Secretary of Defense to determine
whether or not the hunger strikers were being treated
appropriately and humanely and whether our reaction to their
reaction was the correct one. I believe in fact the insertion
of the nasogastric tube and the tube feeding was appropriate
and wrote such in a report.
So I can make a judgment on those things medical, those
things where it has to do with the physical well-being of the
people who are detained at Guantanamo. I cannot make a
judgment--I am not qualified to make a judgment as to what type
of tribunal we should establish to deal with the 350 or so who
will be remaining at Guantanamo and may require some sort of
action. I need to know from you as a Member of Congress but a
nonattorney but one who will have a vote equal to the votes of
the scores of attorneys in the Congress precisely how this
should be handled.
I am a veteran. I am aware of the UCMJ. I am aware of what
the Common Article 3 of the Geneva Convention says. But I need
to know in language that a poor country doctor from out in the
Midwest can understand how the Congress should handle this in
light of the Hamdan decision.
Judge Wald. My humble advice to you, Congressman, would be,
based on what I have read and seen, that if one started off
with the Uniform Military Code, you would have a framework that
your people are familiar with and that your military are
familiar with, and that is the place to begin. Then, if there
are some deviations, that the government, for instance, would
be able to make a case for distinguishing such as--and I am not
saying that they could make this case--but such as perhaps some
more indulgence for hearsay or perhaps some of the modes of
proof such as we had video recording. So that somebody who is
in Afghanistan does not have to come back to Guantanamo for the
military commission, or by deposition. There are some ways such
as that that you would not have to discombobulate necessarily
the setup, that those should be given serious consideration but
that in effect the case would be made by the government. And I
am sure in some cases it might be able to do this, that they
absolutely need those kinds of what I would call not tinkering
but not cutting into the basic rights of the defendants.
But I think the Uniform Military Code is respected
throughout the world. I traveled widely in Europe, Eastern
Europe and in Africa. It is widely respected, and I think you
start off with that. If you have to pull back in one or two
places that do not go to the four basic rights that Professor
Scharf talked about, okay, that may be possible, but that is
where I think we do not throw away what we have got that is
good.
Mr. Scharf. I would just add that the Hamdan decision
provides a fairly detailed road map. So as long as Congress
legislates the military commissions and as long as it makes it
consistent with the fundamental due process guarantees of
article 3 and article 75 of additional Protocol 1 to the Geneva
Conventions as described in the Hamdan decision, then this body
would be doing a great justice for both the efforts to combat
terrorism and to ensure due process.
Dr. Schwarz. Judge Gahima or anybody else?
Judge Gahima. I defer to my colleagues. I am not familiar
with the U.S. legal system.
Dr. Schwarz. Thank you, Mr. Chairman.
I would say to Judge Wald, ``discombobulate'' is a word we
do not like to use in the operating room either. So that one I
understand.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
The gentlewoman from California, who has worked this issue
very extensively, Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman; and thank you all for
being before us.
I really think one of the reasons that we are trying to see
what the international community does is we want to make sure
that whatever the Congress puts forward is viewed by the
international community as fair. Certainly in the last two
years, three years now, that I have been looking at this, not
only did I think what the President had done was not gaining us
friends outside of this country but even our own Supreme Court
said, you know, Congress, get to work and constitute a real
court for this.
So I believe that is why we are trying to look, not that we
want to necessarily adhere to other laws or what-have-you, but
that we want to make sure that the international community
understands why we came up with the system that we are working
on.
So thank you for being here.
It is also true that there is something called comparative
legal studies in the academic world, which basically says that
justice can be derived in a court system even though there can
be diverse legal systems; and I think it would be true to say
that only an ethnocentric American lawyer would say that you
can only get fairness in the United States court.
So, with that in mind, I think that we can have fair trials
and reliable verdicts even if what we fashion is not directly
adherent to the U.S. Constitution. Because in a sense we have
said what we want to make sure is that these people have human
rights, that they have a fair trial, that the international
community is accepting of it, but that they are not necessarily
U.S. citizens, that we do not want to try them that way.
Now some of my colleagues are concerned at the lack of
judicial precedence when using special tribunals for war crimes
trials. The concern is that judges in such tribunals such as
the ICTY have no body of judicial opinion to rely on when
applying the rules of the tribunal to the trial of specific
cases. Judge Wald, could you comment on that problem in light
of your experience on the ICTY? How do judges address that
problem? Do you resolve problems of this kind--how do you
resolve that issue?
Do, for example, European judges approach the problem
differently than American judges would, for example? And should
the lack of judicial precedence be of concern to us as we
contemplate the creation of military commissions or would
military judges simply resolve such problems by drawing
analogies from other American systems and rules?
Judge Wald. Thank you for the question, Congresswoman
Sanchez.
Let me start out by saying that because the ICTY, with
which I am most familiar, has been in operation now for ten
years or so there actually is a lot of precedent. In fact, when
I made an attempt in the last few days to try to bring myself
up to snuff on just the amount of law that has come about since
I left----
Ms. Sanchez. But, in the beginning, when you first got on
and there were less cases----
Judge Wald. But there are a lot of cases out there now.
Virtually every aspect of the definitions of crimes of war,
also crimes against humanity, but they don't come into war
crimes commissions, and that is only one tribunal. There is
actually some precedence out of the ICJ. That is not a criminal
tribunal, but it does deal with states and international law,
and some of the concepts cross over----
Ms. Sanchez. The reason I am asking the question is that
there are some who believe and I think we have a Cadillac
system in the court-martial process in our military. I also
believe that if we use that system without changing it
significantly we probably wouldn't be able to prosecute and win
trials of these maybe dozen people we are really talking about
with respect to the Hamdan verdict.
I have my own bill which I have proposed that says let's
use the UCMJ and let's build basic building blocks from the
international community standards and have some exceptions, as
the good doctor here discussed, the professor, about hearsay
and other issues.
But some of my colleagues are saying, oh, my God, this
would be something new. We do not have any precedent here. We
do not have cases tried under something that we would start,
that would be new. What do you say to them?
Judge Wald. If I can just follow through. No matter what
system you set up, whether or not it is the military code
system or whether it is not as the President's original order
from several years ago, you have the same problem. You do not
get more precedent from setting up the different system than
the military code system. In fact, from the military code
system, since our military has been using disciplinary
provisions of its own for hundreds of years based--not hundreds
but almost a hundred years--based on the Geneva Convention,
they in effect have some of their own body of law.
But this is the same law, as I said before, that it is
international law which you now have quantities and quantities
of precedent not just from us but from the ICTR and from hybrid
tribunals and even from some other national tribunals, too.
So I do not think, having spent 20 years on the D.C.
Circuit, there are a lot of areas in which you, Congress, will
sometimes pass a statute and it will be brand new to us, brand
new to us, and we will not have any precedent on which to base
it. To a certain degree, it is part of the game that there may
always be some new twist that nobody anticipated, that a judge
simply has to walk in. But I think here you have probably got
more precedent now on what war crimes mean as defined than in
many, many other areas of international law.
Mr. Scharf. Just to add, in the early years of our own
judicial history, the Supreme Court referred much more
frequently than it does now to foreign judgments because we had
such few judgments of our own to utilize. The students that
work with me doing work for five international tribunals are
often faced with this very issue, and the very first day of
class I explain to them what the precedent is and how to find
it. Nowadays, it is all electronically available, which is
wonderful. But the first thing I tell them to go to is the
Geneva Conventions and their negotiating record. The Pictet
Commentary is a very detailed history of how these laws of war
are supposed to be interpreted as their founders meant.
Second, there are so many international decisions in the
last ten years since the creation of the Yugoslavia tribunal,
the Rwanda tribunal, the Sierra Leone tribunal, the Special
Court for Sierra Leone and East Timor, and the International
Criminal Court has even begun to generate precedence. There are
over a thousand cases that have been decided. It is a huge body
of law again available electronically.
There is also, as far as due process goes, the decisions of
human rights bodies like the European Court of Human Rights and
the Inter-American Court of Human Rights.
And then, finally, there are decisions of foreign courts,
in particular the Privy Council, the House of Lords of the
United Kingdom or the Supreme Court of South Africa and other
very well-respected courts that have been dealing with the laws
of war and the due process that is required.
So it is not like you have to start from scratch. You do
not have to work on a blank slate in this area anymore.
Ms. Sanchez. Mr. Chairman, may I ask one very quick
question?
The laws of war, what if we want to use these commissions
or tribunals to expand the subject matter? We are in a
different kind of war. The President has deemed it the war on
terrorism. It may be ongoing and long. What about things like
hijacking, material support to terrorism, conspiracy? Should we
grant power to try these kinds of offenses when committed in
furtherance of international terrorism? Just a quick question.
Mr. Scharf. My own stab at that would be to note that the
military commissions who are staffed by members of the military
who have experience in the laws of war are best suited for war
crimes and crimes under the laws of war. If you are going to go
into new areas of terrorism you might want to create new types
of tribunals which you do have the ability to do, things like
the FISA court itself, the Foreign Intelligence Surveillance
Act court, and that might be an important venue if you are
going to be looking at things like hijacking crimes.
But usually those kinds of crimes are appropriate for
ordinary trial in Federal District Court and that it is the
specialized area that involves al Qaeda and its military
efforts against the United States that makes that right for the
military commissions.
Ms. Sanchez. So would conspiracy in the furtherance of
international terrorism by an al Qaeda--under the existing
systems we have, let's say, would we try that in the Federal
court system or if we set up a commission under the UCMJ that
would do war crimes, would that be better placed with the
military?
Mr. Scharf. Yeah, I mean, the Supreme Court ruled that you
could not prosecute someone merely for conspiracy if it was not
an aiding and abetting situation under the laws of war.
Ms. Sanchez. So it would go under the laws of war?
Mr. Scharf. Right, so that's, I understand, what you are
reaching.
Ms. Sanchez. I am asking because my bill does include
things of that type where we would not be capable of doing that
under the Federal system at this moment, to my knowledge.
Mr. Scharf. It actually is a difficult question, whether a
military commission would be the right venue for that, whether
you need a new specialized court or whether you are stuck with
just the Federal district courts.
On the one hand, you could say, all right, we will
authorize the military commissions to have this extra
responsibility. But what that means is, to the extent they are
using universal jurisdiction based on the Geneva Conventions,
they have expanded it to an area that is not recognized outside
the United States and the United Kingdom to the area of
conspiracy which is a uniquely American and British construct,
and so that may be problematic. So it is definitely one of
those kinds of issues that I would assign a student to look at
for six months or more before I could give a definitive answer.
Ms. Sanchez. You might want to start that.
Do any of you have a quick comment?
Judge Wald. I have a quick comment on it.
It is clear that Congress could do that. Certainly Congress
has the power. In fact, I think there were one or two
additional crimes that were in the President's original order
including, if my memory serves me correctly, terrorism or
something that is not usually encompassed within the
international definition of crimes of war. But, like Professor
Scharf, I think it is something that ought to be thought
through very carefully before you do it.
For instance, in the area of conspiracy, as I am sure you
know, conspiracy was one of the counts of the original
Nuremberg indictment. But our allies who were on the Nuremberg
tribunal with us were so suspicious of the whole notion of
conspiracy because it is not one that is common in other
countries that they were very reluctant and they finally
limited it only to the so-called crimes against peace or the
equivalent of aggressive war.
Even Ambassador Biddle, who was our particular person on
the Nuremberg tribunal, he said, based on his American
experience, he was very suspicious of conspiracy because,
depending on how you define it, you can encompass he said the
entire German nation. Subsequently, no one of the international
tribunals to my knowledge has ever put conspiracy into the mix
because generally it does not have an international recognition
to do it.
So it is one of those things I think that you have got the
power to do it, certainly, but that you would think about very
carefully before you did.
Ms. Sanchez. Judge, did you have a comment?
Thank you.
The Chairman. I thank the gentlewoman.
The gentleman from Tennessee, Mr. Cooper.
Mr. Cooper. Thank you, Mr. Chairman; and I thank the
witnesses.
First, as I read the Constitution, article one, section
eight, says that Congress shall set rules for capture on land
and sea. So I think it is about time that we had hearings like
this. I am sorry so few of my colleagues are able to attend.
Second, with asymmetric war you get asymmetric justice. A
lot of my folks back home see Americans who are captured by the
enemy and are given no justice whatsoever. The enemy does not
even keep records. They come back dead, tortured, beheaded. Now
we should be held to a higher standard, but I think there is a
popular frustration.
It seems to me that this debate will boil down largely to
whether we will do military commissions plus four, as Professor
Scharf has suggested, or a courts-martial maybe minus three,
six, eight, whatever procedures you want to diminish them by,
or perhaps by an entirely new approach such as my colleague,
Ms. Sanchez, has suggested.
Any of those procedures must pass Geneva Convention muster,
however, because that has always been U.S. policy; and until,
as I understand it, reading this book Guantanamo by Professor
Margoles and seeing some of the previous testimony both before
this committee and in the Senate, that was the standard until
President George W. Bush overruled our military commanders.
Because, as I understand the history, General Tommy Franks said
we would comply with Geneva when we first went into
Afghanistan. That was the policy until first, initially,
Secretary Rumsfeld started overruling it, and then, with a few
memos from the Justice Department, then there was an executive
order issued that basically allowed us to depart from Geneva.
Dean Harold Coe of the Yale Law School in his testimony
before the Senate said that that Presidential order, at least
according to a press account, was issued without the knowledge
or consultation of the Secretary of State, the National
Security Advisor or her legal counsel, the General Counsel of
the CIA, the Assistant Attorney General for the Criminal
Division or any of the top lawyers in the military's Judge
Advocate General's Corps and we all know, according to him, it
was done without congressional consultation.
That is a pretty amazing departure, an unprecedented
departure, especially in view--and I would ask Judge Wald
this--settled Constitution law was pretty much the Youngstown
Steel case, was it not, especially as envisioned by Justice
Jackson's concurrence where the President is at the zenith of
his war-making powers when he not only exerts his power as
Commander-in-Chief but also confers with Congress. And for the
President to deliberately not want to confer with Congress and
therefore not be at the zenith of his powers is a pretty
amazing situation. If you believe, as I do, we are in a genuine
not just war but series of wars, you want a President to be
fully capable.
So we were in a curious situation not only on these grounds
but also on the fact that Guantanamo is a unique location on
the planet.
Are any of you aware of another location in the world that
is, at least according to some Justice Department lawyers, not
fully subject to U.S. law, not subject to international law
either, and not subject to local law? Because Cuba in theory
may have sovereignty, but it has no practical force or effect.
Is that not the precise reason why Guantanamo was chosen to be
extra legal, sort of no man's land? That itself creates a
situation that is at best anomalous.
The President himself said that we should shut down
Guantanamo, but it is still there creating this reoccurring at
least image problem for the United States, if not a deeper
problem than that. Because terrorism is not only a series of
crimes in its own right. It is also making use of publicity for
advantage. And we are not doing as well as we should on the
publicity side of things.
So those are some of my concerns. I would be interested in
your enlightenment on this.
There are several issues we have not even touched on. For
example, none of us know where Khalid Sheikh Mohammed is, and
prisoners of war like that, what circumstances he is enduring.
So these are deep and heavy matters, and I think it is going to
take the full attention of the committee and of the Congress to
begin solving them in a manner consistent with prudent U.S. and
international standards.
Judge Wald. I just make one comment, because much of what
you have said is very cogent to the problem, and that is my
understanding is that the military commission order originally
proposed by the President or put into effect by the President
deals with the Guantanamo situation. And certainly the Detainee
Treatment Act that--or at least the status and the commissions
also deal with the Guantanamo situation.
But Congress, now that it has entered the field, and the
standards under the Steel seizure case will be somewhat
different than when the President was occupying it alone. I
think it certainly behooves Congress to think about whether or
not they want to establish a framework and rules that can have
residence in the other situations you talk about. There may
come a time indeed when somebody who is not held at Guantanamo
but is held at some other--detained at some other place around
the world that we do not know about, someone may wish to
prosecute him or her for a war crime. So that it, I think, when
looking at this Congress would do well to keep the wider
framework in mind so that the rules and procedures it lays down
would be applicable to a person accused of a war crime wherever
that person might have been picked up or detained.
Mr. Scharf. As somebody whose career started out at the
State Department, I do want to address some of the practical
consequences of any decision that would be seen worldwide as
abrogating the Geneva Conventions to echo some of what you and
Judge Wald have just been saying.
First of all, not just the United States but other
countries tend to follow our precedence and to use our
precedence for good or bad in their own purposes. For example,
Russia in its situation in Georgia and Chechnya are follow very
carefully what we do in our war on terror and modeling their
actions against what we are doing. So we have to be aware that
there are these kind of consequences.
Second, it is harder to protect Americans, even civilians
abroad, when we are seen as violating the essential Geneva
Conventions.
I will remind the committee of the situation of MIT student
Lori Berenson who went down to Peru a decade ago, and she was
charged with being a member of the Shining Path Terrorist
Organization. Hooded judges prosecuted her, secret witnesses
were used against her, and the United States spent about six
years trying to free her. We no longer try that, because Peru
says what is the difference? You are doing it in Guantanamo.
And it just does not give us a strong argument with them any
more.
Third, Admiral Hudson, who had previously been the Judge
Advocate General, testified a while back that the United States
is more forward deployed than all of the other nations combined
militarily, and therefore strict adherence to the Geneva
Conventions is more important to us than to any other nations.
Finally, the kinds of due process violations that we have
been charged with in both Abu Ghraib and also in Guantanamo Bay
with the military commissions actually makes it much harder for
us diplomatically to enlist international support for resolving
the major issues of the day. So trying to get international
support for peacekeeping in Lebanon or trying to get support
for a U.S. departure and withdrawal from Iraq replaced by
international bodies, these are areas that are affected by what
we do in this context, and so there are practical consequences
that always need to be kept in mind.
The Chairman. I thank the gentleman.
The gentleman from North Carolina, Mr. Butterfield.
Mr. Butterfield. Thank you very much, Mr. Chairman; and let
me thank each one of you for your testimony today.
Before coming to Congress, I spent 30 years in a courtroom,
15 of those as a judge and 15 as a defense lawyer. So I want to
thank you very much for your testimony, and I appreciate your
testimony because I agree with most of what you have said this
afternoon.
I have read the Hamdan decision. I have read it several
times. I have taken it with me on leisure trips and reread it
with a view of trying to get a full understanding of what the
Supreme Court is requiring and what the Court is not requiring,
and I think I have finally begun to get an appreciation for the
decision.
Let me start with Judge Wald. Judge Wald, in the opinion,
it talks about a regularly constituted court; and I did a
LexisNexis search on that term and not much came back, to my
surprise. What do you perceive to be a regularly constituted
court?
When I think of that term, I think of a tribunal, first of
all, that is sanctioned by the legislative branch of
government. I think about a court that has procedures, well-
established procedures that govern its trials; and I also think
about a body of law, a list of triable offenses that are
attached to the court. Would you elaborate on that for me?
Judge Wald. I will do what I can.
My reading of the Hamdan decision, I do not have it in
front of me, was that Justice Stevens was looking and saying,
did Congress ever, in any way, sanction military commissions?
And it said, well, yes, it did. It mentioned them along with
courts-martials and some other modes. So that it had in certain
circumstances authorized the President to set up military
commissions that had to operate though in a very specific way.
They had to implement--the ones the President could do himself
had to implement the laws of war and had to implement them in a
way that was consonant with, I read it as saying, international
standards on the laws of war.
Now, a regular constitutes--so that, in that sense only,
that would satisfy regularly constituted courts. However, the
usual way courts are set up in our Constitution is by Congress.
I mean, Congress generally sets up courts. So I would say that
when you talk about regularly constituted courts, the
presumption would be except for the kind of exception that
Justice Stevens even recognized in the military commission
situation but only if it stayed very much confined to that
realm----
Mr. Butterfield. Let me ask you this. As we establish the
procedures for these trials, do we also need to be listing the
triable offenses that these individuals should be tried for?
Judge Wald. I believe so. I believe that if you are
establishing regularly constituted courts to try these offenses
that it certainly would be--I would think it would be necessary
to lay out what offenses they are, and they would normally be
the laws of war. But if by some chance you decided to add
something then that certainly would have to be----
Mr. Butterfield. The opinion also has some language that
states judicial guarantees which are recognized as
indispensable by civilized peoples. Help me with that.
Judge Wald. All right. There I think you just go back into
the body of international law which Professor Scharf talked
about; and there are, in fact, many decisions, including one by
the former President of the ICTY, Justice Cassese from Italy,
as well as the International Court of Justice, the so-called
world court, have laid down six or seven sources where you go
for international law that is recognized as customary law.
I think when you look in those and you pull it all together
you will find a series of rights that are recognized as
indispensable. A quick fix on that would be to look at the
rights that are set out in the charters of the ICTY, which I
referred to briefly in my testimony, as well as in some of the
other international tribunals.
Mr. Butterfield. Professor Scharf, let me conclude. Would
you--let me ask you very simply, am I correct in assuming that
the UCMJ has already built into it flexibility? It is not a
rigid code. There are provisions already in place that can take
into account the unusual circumstances of a trial, right or
wrong?
Mr. Scharf. That is correct. However, there are some
provisions of the UCMJ--and don't ask me right now to enumerate
them--but I was just reading a list of them before I got here
that just do not make sense when applied in this context. So
you would not want to have everything from the UCMJ, which
really was intended to be used against our own troops and not
foreigners, to be imported whole scale.
But can I add one thing to what Judge Wald was saying to
your initial question which was a very important one?
In the very first case that got up to the Court of Appeals
to the Yugoslavia tribunal, the defense counsel argued that it
was not one of these regularly constituted courts and did not
pass muster. And the Yugoslavia tribunal appeals chamber looked
at all the relevant precedents and in a very lengthy opinion
walked through and said that, in fact, the requirements are
those that you listed, that there has to be some kind of
legislative creation, which in their case the Security Council
was acting as a legislative body; second, there has to be
adequate due process procedures under international law; and,
third, there has to be a body of law, they call it nullum
crimen sine lege, which is Latin for no crime without law.
The list of offenses, however, do not necessarily have to
be incorporated in the statute. You could have something listed
by reference.
For example, in the piracy law that Congress has on the
books, piracy is not defined other than by reference to its
definition in the law of nations, but as long as you are using
those crimes that have been recognized under the law of
nations, those very crimes have been recognized by these
international tribunals, then you are in good shape.
Mr. Butterfield. Thank you. You have been very helpful.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
The gentlewoman from California, Mrs. Davis.
Ms. Davis of California. Thank you, Mr. Chairman.
Thank you all for being here and for contributing to our
learning curve in this area.
Mr. Scharf, you brought up one of the issues that I think
has been of concern to me, that in UCMJ at least we have judges
with a reasonable amount of experience that can rule on hearsay
and have some expertise and I guess depth and understanding
there, whereas on the tribunal, the commission, that that is
less likely to be the case. And yet you also are suggesting
that we do better by building, complementing, I guess, the
tribunal, as opposed to working with UCMJ. Could you talk a
little bit more about the concerns that you would have around
whether or not these are judges versus others that are sitting
on a panel?
I do not know if anybody else has a comment on that as
well, and what are the questions we should be asking around
that, and then I will go to a few other questions.
Mr. Scharf. Well, actually, my understanding of the UCMJ is
that you do not have professional judges making those decisions
either. You rather have the equivalent of a jury. It is a jury
of officers. And, of course, you do not have anything that
could be a jury for al Qaeda because these are foreigners, not
U.S. military people. So what they have are essentially lay
judges deciding their fate.
But in each case you do not have legally trained or
professional judges making the decisions, and that is an
important thing to keep in mind. Because when we talk about the
hearsay rule as it is applied in the Yugoslavia tribunal, it is
applied by seasoned judges like Patricia Wald, not by people
who do not understand the frailties of hearsay evidence and its
inherent unreliabilities.
I did suggest that there are two approaches, and I think I
am not sure which is the appropriate approach, so Congress has
to wrestle with that. You can either add on to the military
commissions those things that the Supreme Court identified in
Hamdan as required, or you could modify to the existing UCMJ
those things that just do not make sense. And I am not a
proponent of one over the other. I think that you all have to
study which works best. Either of those ultimately would be
successful, I believe.
Judge Wald. If I might add just one thing. My experience--I
do not know that much about the military code. My experience
would be that if it were possible to have at least one military
judge on these commissions, as opposed to all military lay
people, that might be exceedingly good. It would also mean that
you would have a cadre of people who would, over a period of
time, acquire the expertise.
Because since in the international tribunals people are
elected for terms of several years, even if you do not know a
great deal on day one after a while, you know, you pick it up
and you acquire that kind of knowledge, as opposed to even in
our civilian courts we do have juries of lay people, but we
have a judge, a professional judge who sorts out things like is
this evidence admissible or is this evidence not admissible.
So my own preference would be to, the extent you could have
at least one military judge on the commissions, it would be, I
am not saying absolutely indispensable, but it would be a help.
Ms. Elsea. If I could clarify, the UCMJ, the military
justice system that we have, does use a military judge and then
a panel of lay officers who do not have as much judicial
experience. But sort of like in civil courts they decide
questions of fact, whereas questions of law are generally
decided by the military judge.
Ms. Davis of California. And is the seriousness of the
crime what they were being tried on? Does that matter in that
case?
Ms. Elsea. In military courts, yes. They can be tried by
summary courts-martial or other even nonjudicial punishment,
but not for the types of crimes that we would be looking at for
war crimes.
Ms. Davis of California. Thank you.
Can I just go on quickly to the rate of acquittals? Because
it seems to me that the bottom line for all of this is are the
bad guys going to get off in any of this. Could you speak to
what the rate of acquittals have been, perhaps even
historically, for defendants charged with very serious crimes?
What is the problem here that we are trying to solve?
Ms. Elsea. At the Nuremberg trials, I, for example, believe
there were three who were not convicted. Then, of course, there
were some who were convicted of some charges but not others.
Perhaps Professor Scharf can speak to the more recent
tribunals.
Ms. Davis of California. And is there a difference on those
acquittal rates, whether or not there are more or less
safeguards in the system itself?
Ms. Elsea. I don't believe so. My understanding is that
even in Federal courts there is a pretty high number of
convictions, as opposed to acquittals based on the kinds of
cases that actually make it to trial, for example. So I have
not done any research. I can look into that and see if we can
find any sort of correlation.
Judge Wald. I could give you a few statistics.
The Chairman. If the gentlewoman would yield, if she had a
question on the rate of acquittals, our noble staff have let me
know that there was eight acquittals in Yugoslavia and three in
Rwanda.
Judge Wald. Could I elaborate a little bit?
Ms. Davis of California. Yes, anything about that.
Judge Wald. I just consulted the Web yesterday, and it said
nine acquittals, but I would not guarantee that.
But I did want to add that is nine acquittals out of--let's
see, I think the number of convictions--because 95 people have
had all their proceedings done, but some of those pled guilty.
There is a guilty plea procedure. And so my guess is--and this
is more of a guess--it is nine acquittals out of maybe 60
convictions. That is a guess, but it is something under 95,
because some people died, and some people had acquittals.
But I do want to add one other thing because I think it is
relevant.
In the Detainee Treatment Act, the appeals which Professor
Scharf talked about are appeals only for issues of law and
whether or not the rules were complied with and whether or not
the rules are constitutional. The ICTY allows appeals, I
believe probably Rwanda does, on facts as well, subject to the
same kind of thing we have in appellate courts. You always give
the trial court a great presumption of regularity, but you can
contest the facts.
I just want to bring this up because, while I was on the
Yugoslav tribunal, although I was in the trial chamber I was
designated to sit the way we do, our trial judges, on a couple
of appeals. And one of appeals on which I presided at the
appellate chamber were five Croats who were convicted down
below of ambushing a village and firing on the Muslim homes
with the intent of death.
Now, I had a panel of five judges from all over the world,
and we agreed unanimously that three of those convictions had
to be reversed because of the weakness of the factual elements
down below. And those were the first three reversals of
convictions in the Yugoslav tribunal, but that should be added
to the nine acquittals from down below.
I think it emphasizes the fact that, though you normally do
not have an appellate court overseeing much of the fact
finding, you should have a safety valve. Because, in this case,
it was all the convictions mostly were based on one eye-witness
whose testimony we all looked at and said that it just does not
support beyond a reasonable doubt level.
So I think that is something else you want to think about.
Mr. Scharf. Just to add one critical point. So there are
500 detainees at Guantanamo Bay and we are talking about maybe
20 of them actually being tried and you are concerned that
maybe 2, 3, 4, 5 might be acquitted. The issue that has not yet
been answered and this committee has an interest in is what
happens to the other 480. Are they going to be kept in custody
until the end of hostilities, which could be years and years,
and what happens to the people who are acquitted? They could
still be kept in custody for years; why not? And also those
that are convicted but given short sentences might be kept in
custody even longer after that.
And I guess the short answer is it is important in the
short run to have the trials and to have due process even if
there is a risk that some of them will be acquitted. It doesn't
necessarily mean that if they are acquitted they go back to the
battlefield, but that is another issue that has to be look at
by this committee.
Ms. Davis of California. Thank you very much.
The Chairman. Thank the gentlelady.
The gentlelady from Guam, Ms. Bordallo.
Ms. Bordallo. Thank you very much, Mr. Chairman. I, too,
have had the opportunity to tour the facility at Guantanamo Bay
with our distinguished chairman, Mr. Hunter, and my focus is on
the prisoner. I am interested in the history of who has been
tried in international war crime tribunals as compared to who
our government currently holds in connection with their
participation in the war on terror. To my knowledge, senior
commanders, high political figures and others responsible for
organizing and directing war crimes have primarily been
prosecuted in international tribunals. Now low level soldiers
and underlings have not necessarily been prosecuted in the same
manner. By prosecuting senior commanders it seems that far more
documents and evidence has been gatherable whereas prosecuting
low level operatives means far less evidence can be found to
facilitate a prosecution.
Can you discuss the types of individuals that have been
prosecuted in international war crime tribunals and in past
U.S. military tribunals and whether to your knowledge the types
of individuals that the United States currently holds are
equivalent in authority, rank or responsibility to those who
have typically been prosecuted as war criminals as opposed to
simply treated as soldiers in a war? How have lower level
operatives in other instances been treated before the law?
I think maybe, Professor, you could answer that and
possibly Judge Gahima might have a comment on that.
Mr. Scharf. Generally for heads of state and other leaders
it is perceived that an international trial is the most
appropriate approach; if not international trial, something
like the Iraqi high tribunal where there are international
rules and international observers and international assistance.
But for lower level people most often either national
courts or court martials have been used. In the United States
we have had famous cases like Lieutenant Calley, a very low
level person during Vietnam who was prosecuted for the My Lai
massacre. More recently we have Lieutenant England who was
prosecuted for her role at Abu Ghraib, a very low level person.
And even in the most famous military commission case from World
War II, In Re Querin, they were Nazi saboteurs of a very low
level that happened to have botched the case and been found on
our territory.
So the military commissions both in the United States and
in other countries have been used for the lower level offenders
whereas the higher ups you usually want to prosecute in
something that is much more grand and world in scope like an
international tribunal.
I would note, however, that the international tribunals
have also prosecuted some low level people. Sometimes it is
because at first they don't have anybody else in custody so
that Tadic, who was just a visiting saddhist to a concentration
camp and a part-time police officer, was the very first person
prosecuted by the Yugoslavia tribunal.
Some people say that it is important not only to prosecute
the top but exemplary people at all levels so that you show a
deterrent. Not just that the top people are going to be held
responsible but lower level people have known that they also
could be prosecuted. But that has been the history of
prosecutions.
Ms. Bordallo. The judge, please. Judge Gahima.
Judge Gahima. The Rwanda tribunal started out badly, was
very inefficient, it did not have prosecution strategy, so at
the beginning they just took over any defendant who turned up
and was arrested in foreign countries and they started out with
some very junior people who should never have been in an
international criminal tribunal.
I suppose it was more or less the same at the ICTY, the
Yugoslav tribunal. I think someone was told, and indicated that
unless you got an indictment, and got it soon, he would not get
any money. However, the current international--the caseload of
the current tribunals, they have completion strategies. They
have been asked to wind up trials in about two years time and
close their doors in 2010, and they are now focusing on the
very high level people, people who are said to be the most
responsible.
I think that it is appropriate that international tribunals
should deal only with the most senior first because they are
the people who pose threats to their communities, they are the
people least likely to get fair trials in their own countries
because if they are out of power, the people who have succeeded
them in government will not accord them fair trials.
And I think the way the international criminal justice
system is being structured, the new International Criminal
Court, it gives the opportunity to states to try those they can
try and the International Criminal Court will only step in if
states are unable or unwilling to try these people, states who
are unable and unwilling to try when people are responsible for
abuses remain in office, and that is why I think it is likely
that for the foreseeable future the international criminal
tribunals will deal with the senior. I don't see any
possibility of returning to the taking of small fish.
Ms. Bordallo. Yes, Judge Wald.
Judge Wald. I just wanted to add something to your second
question and that is the kind of evidence difference when you
are dealing with big fish and small fish. Everything that my
colleague said is true. In the beginning, the international
courts, they needed bodies, and they tended to go for some of
the smaller ones. Later on even the Sierra Leone tribunal was
defined in its very charter as saying it could only try the top
dozen or so of the most serious criminals.
But, this is my point, I did preside--not preside, I did
serve on the trial bench for one of the small fish cases in
which they had five persons who were just the guards in one of
the detention camps, the guards, the so-called shift
commanders. I think the highest was a deputy camp commander,
but it wasn't anybody up there.
And the kind of evidence we had there was almost entirely,
as you can imagine, victim-witness evidence, people who had
survived the camp and came to tell the tales.
But the other trial that I had was the person just below
General Mladic, the second in command at the time of the
Srebrenica massacre, a general, the brigade commander for the
entire area, and would have been below General Mladic, who is
being tried for genocide as well as crimes against humanity.
Now in that case, again, it was victim-witnesses, it was
not paper. What happened in Nuremberg was the German defendants
were, it has often been commented by Justice Jackson who was
the prosecutor, that they left a paper trail, because it was
part of their national character to keep memos.
Now subsequent high level persons who have been tried for
war crimes learned their lesson from Nuremberg; you do not find
those memorandum saying let's go out and get all the Muslims in
the village. We had to depend in the genocide trial almost
entirely on surviving witnesses, people in the town, fellow
soldiers, some of whom we had got by videotape who had come to
the United States and we were able to get their testimony
through videotapes.
So that I am not sure that the type of evidence these days
is so very much different between trying to show the chain of
command. You can show the chain of command, but whether or not
the order--the kind of orders that you get tried on the basis
of for war crimes people don't put down on paper any more.
Ms. Bordallo. One quick follow-up. In the model that we are
currently developing would you then suggest that there be any
changes made, or would it be the same?
Judge Wald. Well, I think the model that you are developing
can probably be used for both big fish and little fish, and I
believe, again, but I am not an expert on the Military Code but
my notion is that you would expect that you are going to want
to have the testimony, however it is recorded, in videotape or
live witnesses, of many witnesses rather than being able to
rely on documents.
Ms. Bordallo. Thank you very much, Judge Wald.
Thank you, Mr. Chairman.
The Chairman. I thank the gentlelady and to our panel,
thank you very much for being with us. I have got just a couple
of questions here. It has been a very instructive session,
really good, and our members had very, very important
questions.
Under UCMJ the rights to counsel attach I presume kind of
like in domestic law when the focus of suspicion is on the
defendant, that he or she committed the crime in question. If
you carry that to the battlefield that means that a sergeant
who sees the terrorist shoot the rocket-propelled grenade (RPG)
at him and then captures that terrorist would obviously at that
point have focused suspicion on that terrorist as being the
actor or the person who committed the criminal act, and if you
strictly applied the right to counsel, certainly the focus
attaches at that point and upon capture he would have, I would
think, under UCMJ, a right to counsel.
And if he had the right not to talk until counsel was
appointed, even though you are operating in the exigencies of
the battlefield, you couldn't then ask him, assuming that the
sergeant doesn't have an attorney close by that he could bring
in, he can't then ask him about the IEDs that are planted
further up the road because that is an intrusion upon his right
to counsel before speaking further.
Is that--so I would think that is probably not one of the
UCMJ-based rights that we want to have. Does that make any
sense to you guys?
Mr. Scharf. Mr. Chairman, I am not sure that it does. I
will tell you why I believe that. If you take the UCMJ, which
is higher than the international tribunal standards but not
quite as high as the Federal district court standards, but if
you compare them to how the same thing would play out in a
Federal district court case--in addition to teaching
international law I teach criminal law and criminal procedure
and I have spent a lot of time talking about the exclusionary
rule with my students. There are constitutional exceptions in
the United States which are under the higher standard and
therefore would also apply under the lower standard of the UCMJ
for a case, for example, where you need to get information that
will be the whereabouts of a kidnapping victim.
And so you don't give someone the Miranda rights, you ask
them questions, they tell you where the kidnapping victim is.
You are doing this under the police exception to the
exclusionary rule. The evidence can still come in.
In addition, even if the evidence were to be excluded, that
doesn't mean that you can't go and find where the weapons of
mass destruction are located, it just means that you can't also
use that particular statement in the military commission and
you would have to find some other circumstantial evidence that
would support that the person was involved.
So I do think that it is a red herring to argue that these
kinds of standards will actually hamstring our ability to fight
on the battlefield or operationally against the terrorists.
The Chairman. So you are fairly certain of that, that the
sergeant, this is a military sergeant as opposed to say a
police sergeant, the police sergeant sees somebody shooting at
him and he arrests him, the guy runs out of bullets and he gets
arrested. The police sergeant at that time would have the
obligation of advising him of his right to counsel, would he
not? He is now handcuffed, he is handcuffed and he is spread
eagle over the hood of the squad car.
He then is advised of his right to counsel at that time, is
he not?
Mr. Scharf. Right. But even in the United States if the
police then take incriminating statements from that person, the
consequence is they can't use it in court against them. And
they could still use it though to save someone's life, for
example, or to find a weapon of mass destruction.
The Chairman. I understand that. But you say take
incriminating statements. Are they allowed to interrogate him
after he tells them I have a right the counsel and the guy says
I want my lawyer and I don't want to talk? Let's walk through
this.
Mr. Scharf. All right.
The Chairman. Advise me because I am kind of fuzzy on the
subject so I need you to advise me, but I was just thinking of
what does attach in domestic law. You have arrested the person
that was shooting at you, you have got him spread eagle over
the squad car, you tell him he has a right to counsel, and he
says I want my lawyer--he is a smart guy--and I don't want to
talk until I get my lawyer. Under domestic law you can't ask
him more questions, can you?
Mr. Scharf. You can keep asking him questions but you can't
use anything he says in response to those questions in court.
That is correct.
The Chairman. Are any people trained to keep asking
questions? I thought they said once a person says I don't want
to answer questions, I want my lawyer.
Mr. Scharf. Unfortunately, that is not the case. There have
been studies done that show throughout the country police
officers are actually taught how to circumvent Miranda and
continue to ask questions, hoping to get other evidence but not
testimony that can be used.
The Chairman. But the person is not under an obligation. He
can keep asserting I don't want to answer the question until I
get my lawyer. Right?
Mr. Scharf. Right.
The Chairman. One thing that we saw in Guantanamo was, from
things that we picked up, were that the bad guys had copies of
our procedure manuals and let their fellows know what their
rights were, just as criminals obviously, even though they
haven't watched all the requisite television shows, know what
their rights are and say you can't fool me, I don't have to
talk. I do want my lawyer. People do so that every day, do they
not?
So in the domestic law they have got a right to do that.
Now it looked to me like under the UCMJ they have a similar
right. An American soldier who is accused under UCMJ has the
same right, is that right?
Let's take the police officer out of the squad car and
let's put an MP who is arresting somebody in uniform who took a
shot at him. Same guy is spread eagle--or uniformed guy spread
eagle over the squad car. Does he now have an obligation to
tell him he has got a right to counsel?
Ms. Elsea. I believe that is the case, but I don't know
that that would be the case in a typical battlefield situation.
The UCMJ also recognizes that there are certain circumstances
where questioning can be carried on for another purpose, and as
long as another purpose is being served then the right to an
attorney and a right to be informed of the right to remain
silent do not attach immediately.
The Chairman. You say you think. Are you certain that there
is a difference? If you are a corporal who is now spread eagle
over the squad car and the MP has captured you, you are going
to be prosecuted under the UCMJ. You are given an advisement
that you have a right to an attorney, to counsel, right?
Ms. Elsea. I believe that is the case. I will double check.
The Chairman. Do you have a right to say anything if you
don't want to pending the arrival of that attorney? If you are
a uniformed soldier.
Ms. Elsea. That is correct.
The Chairman. So I mean I am just looking at the side-by-
side you gave us. That is what I am operating off of. Now you
say side-by-side, not withstanding that would necessarily hold
true if we operated under the UCMJ and you used it in the
battlefield situation where the sergeant has seen the terrorist
shoot at o him, has now captured him, and instead of now being
spread eagle over the squad car, he is spread eagle over a
Humvee in Afghanistan.
Does the right to counsel attach at that point? If we are
just looking at the right to counsel, when does that attach?
When does it activate?
Ms. Elsea. I would say that it activates once a person is
accused of a crime.
The Chairman. So it doesn't activate upon--you are talking
about a formal accusation by a prosecutorial authority.
Ms. Elsea. That is correct. I believe that if on a
battlefield situation, capturing a person does not necessarily
have anything to do with the suspicion for a crime. So you
could capture them, take them into custody, ask them questions
regarding--ask them questions for intelligence purposes; for
example, where are the other IEDs, et cetera, would not require
an attorney.
The Chairman. But if we are characterizing these people as
terrorists and the shooting of the RPG that the sergeant
witnessed is a terrorist act, and that is a crime, then you
have, just as the sergeant saw the person shoot at him with the
handgun and threw him over the squad car and advised him of his
rights, at that point in domestic law we say that the defendant
has become the focus of suspicion that he committed a crime.
Would not the terrorist when he commits a terrorist act
that you see and you now capture him and you throw him over a
Humvee, is he not now suspected of a crime, the focus of
suspicion at that point?
Ms. Elsea. I would have to look into it and see if there is
any case law on that.
The Chairman. Okay.
[The information referred to can be found in the Appendix
on page 107.]
Mr. Scharf. I would point out that as far as the
international tribunal precedent goes, the precedent that is
the minimum standard internationally, they do not attach those
words until you are, quote, accused as defined as actually
having been accused.
The Chairman. I wasn't talking about international right, I
was looking at the UCMJ. I am just trying to differentiate
because there are folks that say let's take the UCMJ totally
and adopt it. And I just wanted to make sure that we wouldn't
have problems under the UCMJ in terms of as right to counsel.
Because it does have a fairly strong right to counsel for the
accused, right?
I ask anybody else on the board to answer this, if you can
do it. In your estimation, in the example I have just given
where you see the person commit the terrorist act, the sergeant
sees him do that on the battlefield in Afghanistan, he captures
him and he has thrown him over the hood of the Humvee and
searched him, and he is going to be taken back later into a
detainee enclosure and talked to, at what point, if we adopt
the UCMJ, if we took the UCMJ today and Congress adopts it, the
President adopts it, we sign the law, at what point did his
right to counsel attach?
It is Ms. Elsea?
Ms. Elsea. Yes.
The Chairman. Ms. Elsea, what do you think? Let's say six-
months later he is in--or two months later he is in Guantanamo
and he is charged under--by the tribunal.
Ms. Elsea. It is hard to answer with a specific case like
that without--I would have to look into it to see if there is
any case law. From my understanding there are exceptions in the
UCMJ, how it is operated, whether evidence can be used, whether
the Miranda right has been explained.
The Chairman. Here is what I was suggesting, and Mr.
Scharf, you might want to comment on this, I think it is
unclear, I think it is a little fuzzy. It might not be bad if
we had in that case, if we have the opportunity here to put
together a new body of law, to make it clear that battlefield
apprehensions do not generate or trigger a right to counsel. Do
you think that is a reasonable thing to do? Maybe we should say
exactly when they do trigger.
Mr. Scharf. My own opinion is that the UCMJ was not meant
to apply in that situation. So if Congress provides that kind
of clarification, I would personally have no objection to that
whatsoever.
The Chairman. With respect to that question, I have just
given you the case history of a defendant, shoots at the
convoy, captured by the sergeant who sees him shoot at the
convoy, thrown over the Humvee in Afghanistan, becomes a
detainee, taken back two hours later to the camp, interrogated,
brought back ultimately to Guantanamo and two months later he
is tried by the tribunal.
At what point in that process in your legal opinion did his
right to counsel attach?
Mr. Scharf. At the point where the system decided that they
wanted to prosecute him rather than just detain him as an enemy
and try to get information from him for the purposes of
prosecuting the war.
The Chairman. So that would be at the point of charging him
in Guantanamo; when they charge him with a crime, or make the
decision to charge him with a crime.
Mr. Scharf. That would be consistent with the international
tribunal.
The Chairman. I am going under the UCMJ. I am saying if you
adopted the UCMJ as the body of law, you would say that the
right to counsel attached upon charge, upon formal charges,
formal decision to make formal charges, right?
Mr. Scharf. Correct.
The Chairman. Judge Gahima, what do you say? Do you have
any thoughts on the UCMJ?
Judge Gahima. I don't, but I have something that is from
previous experience, which may be of relevance. U.S. law
enforcement agencies often go after terrorist suspects not on
the battlefield but people out in the field in hiding or
planning terrorist activities.
One thing that ought to be considered is whether if it is
not somebody arrested in the course of combat but somebody who
is apprehended as a result of intelligence that has been
received from foreign states should be--should have access to
these rights the moment the FBI or the Department of Justice
turns up in the country and says we want to talk to you about
activity X, Y and Z. That is common.
From my personal experience, it is a situation that I did
find worrisome.
The Chairman. Thank you.
Judge Wald, what do you think?
Judge Wald. Well, I certainly think that when you are
talking about the immediate atmosphere of the incident or the
battlefield--I do not know the Military Code but I have talked
to one or two people who do, and I am sure the committee will
have their expert advice. I was under the impression, but that
is all it is, that even under the Military Code there is a
period of what you might call investigating the crime scene or
that sort of thing where when he has got him slung over the
Humvee, that the purpose of questioning might well be to make
sure that he doesn't have somebody behind him that is going to
come along a little bit later with another explosion or, in
other words, in order to keep the scene in some kind of order,
that nobody, including myself, expects that you are going to
have a full Miranda-type warning there.
I think, and I am under the impression that one of my
expert friends said that the Military Code provided for a
certain period of investigating what had happened before you
immediately brought that into being. Where I am not sure what
would happen would be whether or not if they then took him back
to the detention facility three miles away or five miles away,
not Guantanamo, and then proceeded into an elaborate
questioning period, I am not sure whether or not some of the
rights wouldn't attach there, even though the military--even
though the ICTY, which you are not that interested in, but
would clearly not bring any of its rules into effect until past
the field investigation period when a prosecutor says I want to
question this guy. At that point it attaches then. My guess is
it might attach earlier in a detention facility that was away
from the battlefield.
The Chairman. Okay. So maybe if the detention were you take
them ten miles back and put them in the detention.
Now, Mr. Scharf, I am looking at your answer, you thought
it would attach when formal charges were filed. I am just
looking at the side-by-side that was put together by Ms. Elsea
and it said: Confessions made in custody without the statutory
equivalent of Miranda warning are not admissible as evidence.
Now if that person shoots at the sergeant, sergeant
captures him, throws him over the hood of the Humvee and he
says I have got ten IEDs I buried last night going up the line,
up the road here, and they are all discovered, right, those--
that says in custody. Article 1 UCMJ, 10 USC Section 831, that
doesn't say when they have been formally charged, if Ms. Elsea
is quoting that section correctly. What do you think? You said
you don't think that applies. But that is what the side-by-side
says. The term custody is a lot different from charging, right?
Mr. Scharf. The problem that the panel is having with this
series of questions is that none of us are experts on the UCMJ
and sitting ten feet behind me is one of my former students who
is working--his colleague sitting next to him is Colonel Davis,
who is one of the most expert people in the world on those
issues.
The Chairman. Bring them on up.
Mr. Scharf. I don't know if they are authorized. It seems
like a basic question.
The Chairman. We don't have any suppression rules with
respect to extraneous evidence or witnesses. Bring them on up.
Colonel, if you could give us that answer to that thing I
just want over. You have been listening to it.
Colonel Davis. I am the chief prosecutor for the military
commissions.
The Chairman. Come on up and grab that mike and tell us
what you think. Colonel, give us your name and what you do.
Colonel Davis. I am Colonel Morris Davis. I am the chief
prosecutor for the military commissions.
The Chairman. On that question what do you think?
Colonel Davis. Yes, sir. Article 31 is what you are
referring to, 10 USC 831. It says if a person is suspected of
an offense, and in your example certainly the person would be
suspected of an offense, that you are required to provide the
rights warning. I think Ms. Elsea says----
The Chairman. You mean right to counsel?
Colonel Davis. Yes, sir. There is an emergency exception.
There is some case law on that, like one case I recall was on
an airplane, a person had apparently taken LSD, there were
safety concerns inflight about what he had done on the airplane
and I believe there was an emergency exception applied there
where rights warnings were not required.
But your example about the sergeant that sees the RPG, if
the person had been a U.S. service member then certainly
Article 31 would apply and a rights warning would be required
and anything he said would not be admissible against him in
court.
The Chairman. If you simply copied the UCMJ and said this
shall now be applicable to the tribunals, certainly defense
counsel would argue that if you take the uniform off the GI and
you put a terrorist uniform on, he has got that same right once
you see him fire the RPG and you have got him in your custody,
not formally charged back at Guantanamo, but in your custody he
has got the right to counsel, right?
Colonel Davis. Yes, sir. If you applied the UCMJ as
written, that is exactly right.
The Chairman. So if--in your opinion if we put this new
animal together, this new body of law then we probably should
have, if we are following and we are going to--I think we are
going to end up extracting a lot of parts of the UCMJ and
utilizing it, that is probably one where we should make it
clear that if in fact we intend to be able to interrogate
immediately prisoners on the battlefield and even to use those
statements against them later on, we should make that clear and
make an exception, should we not?
Colonel Davis. Yes, sir. I think the problem you are
running into, kind of what is being discussed here is in a
perfect world how would you do it. What I am stuck with as the
prosecutor is what I currently have. We have got 450 people
roughly that have never had any rights advisement given to
them. So I have this box of information and the question is
what can I do with it.
When these people were captured initially, the concern was
intelligence. In the intelligence world you are interested in
not what happened yesterday but what is going to happen
tomorrow. Then you bring in the law enforcement piece. They are
not concerned with what is going to happen tomorrow; they are
concerned with what happened yesterday.
And often those two are combined where you had intelligence
interrogators and law enforcement personnel at various times
questioning these individuals without rights warnings.
The Chairman. The other thing I am kind of worried about is
even if you have the right to remain silent, which apparently
you don't--or you do under UCMJ, but even if you didn't have
that right because of the battlefield exigency, the bad guys
watch us pretty closely and if the guy simply says listen, I
have read your laws, I have been briefed on it, I want my
lawyer and I am not going to tell you anything, and absent that
he might have told you about the ten IEDs up the road, then the
perception, if you will, the street knowledge that somehow you
didn't have to talk to American interrogators any more on the
battlefield would accrue to our detriment, wouldn't it? Right
now we only get the dummies in the domestic law who talk like
canaries even after you have told them they have got the right.
They think if they can out-talk the policemen they are going to
get him to let him go.
Colonel Davis. Yes, sir.
The Chairman. Let me ask you a couple other. Stick around
because I think you are an important part of this panel here,
sir.
Just a couple others, folks, and we will free you here.
Hearsay evidence. You have got--we have got this churning
population of people in these camps. We have got a churning
population and you have got people who have incriminated their
fellow terrorists and then been shot, been released,
disappeared, whatever. The gates have opened, lots of people
have left the prisons who initially were there.
What do you guys think about--and I noticed in Nuremberg no
hearsay can be utilized and in the Yugoslavian forums hearsay
can be utilized. Hearsay can't be utilized under UCMJ except
under exceptions, is that right, Colonel?
Colonel Davis. Yes, sir, that is right.
The Chairman. Would you recommend that you have an
allowance of hearsay, maybe subject to--if you have a military
judge in these tribunals, subject to his finding that a
reasonable person would find hearsay credible and probative, or
do you think there should be a stricter limit on hearsay or
maybe open--a no-exclusion Nuremberg-type rule on hearsay?
Colonel Davis. Sir, I guess my view would be, and I don't
mean to disagree with Judge Wald entirely, we do have a
military judge, a presiding officer who makes that preliminary
determination that the evidence does have probative value to a
reasonable person, and certainly there are factors that could
cause the judge to find that it lacks that and suppress it.
If it gets past that threshold and the members of the jury,
in essence the panel members in this case are all military
officers who for the most part have master's degrees, if not
doctorates, pretty well-educated, smart group of people, and I
believe it would be up to them at that point to weigh the
evidence, factor in all those--the totality of the
circumstances and attach the weight that they believe is
appropriate to that piece of evidence.
The Chairman. Okay. So once the judge let it in, let them
assign a value to it.
What do you think, Mr. Scharf, about that?
Mr. Scharf. Well, both the UCMJ with its many exceptions
and even the Federal rules that apply to the district court
have a residual hearsay exception that would apply in the
circumstances you are describing. Federal rule of evidence
804B5 actually says that if the court determines that, A, the
statement is offered as evidence of a material fact; B, the
statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure
through reasonable efforts; and C, the general purposes of
these rules and the interests of justice will best be served by
admission of the statement into evidence, then it can be
admitted.
So I think under both the Federal rules, the court-martial
rules that there is a general residual exception for hearsay
under the circumstances that you have described. I would be
cautious about lowering that threshold further.
The Chairman. Okay.
Judge Wald.
Judge Wald. As I said before, I learned to live with
hearsay during my two years, but with caution, but I do think
the thing that might be remembered, and I don't know how it
applies in military, is I would be very--I would feel very
uncomfortable about a conviction that was based entirely on
hearsay or even where hearsay was the key piece.
I think that is a balance which we used which might commend
itself to some, and certainly has been the subject of some
other international courts, that if a whole conviction depends
upon hearsay then maybe it shouldn't stand.
The Chairman. Okay. Ms. Elsea. Did you have any position on
that?
Ms. Elsea. No.
The Chairman. Judge Gahima, any position on that?
Judge Gahima. Yes, sir. I think the particular
circumstances of dealing with terrorism cases call for a
lowering of the threshold against the admission of hearsay
evidence. Terrorists groups are very closely knit groups. It is
very unlikely that you find them willing to turn against their
colleagues.
The threats against witnesses who may be willing to testify
are enormous. I think that in the absence of other evidence it
would be better if the criminal justice system were more
flexible to consider hearsay evidence because of the particular
threats that exist in these cases. That is my personal opinion.
The Chairman. Okay. Thank you.
Just one last question. The Geneva Convention. The
President said that terrorists are not going to be accorded all
the rights of the Geneva Convention. As I understand, one of
the rights under the Geneva Convention of POWs is you have only
got to give name, rank and serial number and you are done. They
don't have the right to ask you questions beyond that. That is
the only obligation you have.
I could just tell you without going into classified stuff
that we have saved a lot of lives in the war against terror by
information that came--did not come immediately during
interrogations, that came after a lot of work; not cruelty, not
coercion, but just lots of questions and lots of time.
Do you folks think that--having set up that leading
question, what do you think? Do you think we should have--
because people say well, we should have followed Geneva and
that would make the world love us. Do you think we should have
a system where the terrorist is only required to give name,
rank and serial number and we don't have the rights to ask, to
engage in persistent interrogation?
Judge Wald. I would note first of all that the Common
Article 3 is I think the only, in terms of terrorists, in terms
of not international conflicts, is the provision which would
apply to the terrorists, not the entire Geneva Convention. They
would not be treated as prisoners of war. I don't think anybody
suggested that it would necessarily be treated as prisoners of
war.
The Chairman. No, but the President was taken to task for
making that statement earlier in the war against terror, that
we would not apply, and he said that in a general rule, he
didn't say Common Article 3, he said these folks are not
entitled to all the protections of the Geneva Convention. He
said we are going to treat them humanely but we are going find
out what they know. And the greatest thing to keep you from
finding out what you know is a good old name, rank and serial
number only.
Judge Wald. I understand.
The Chairman. So a little digressing but it goes to some of
the questions of the panel.
Judge Wald. I don't think that applying the Geneva
Conventions would have required that that provision that you
talked about, name, rank and serial number, which in my memory
applies to prisoners of war, would have applied to al Qaeda or
Taliban, whatever, who would have been covered by Common
Article 3, which applies to anybody you capture but isn't a
prisoner of war.
The Chairman. I agree.
Judge Wald. So I don't think that the name, serial number,
which my memory is, is not incorporated within the Article 3,
Common Article 3 rights, or at least I don't know that it is. I
don't know that there has been any decision which said it is
inhumane as long as you aren't using torture, duress or
coercion to be questioning somebody.
The Chairman. The context that I heard the President speak
on this was he said we are not going to treat these folks like
soldiers. And he didn't parse it as to whether Common Article 3
applied.
I guess what I am asking is if that in fact was our intent,
not to treat them as uniformed soldiers, that a large part of
that was to make sure we could engage in persistent
interrogation to save lives.
Doesn't that--if the Geneva Convention requires that you
treat people who are soldiers in that way, that you only
require name, rank serial number, they don't have to talk
beyond that, that if we treated them like soldiers, that would
be the application and that would prevent us from having
information which turned out to be pretty vital information to
us?
Judge Wald. I guess my bottom line would be of course I
don't know exactly what the President or the Administration had
in mind when they made that, but even if they had applied the
Geneva Convention, it would have allowed them to discriminate,
to differentiate between prisoners of war and nonprisoners of
war who would have come under Common Article 3. My belief is
that the name, that the serial number questioning kind of thing
only applies to prisoners of war and that----
Ms. Elsea. Could I interject here? That is true, it does
apply only to prisoners of war. The Geneva Conventions say that
prisoners of war cannot be required to give any more than their
identification. However, the ICRC interprets that as not
prohibiting further questioning of prisoners of war. What is
prohibited is methods of coercion. Asking questions itself is
not prohibited.
Mr. Scharf. Can I add----
The Chairman. It is not prohibited, but it also describes
all you have to give, right?
Ms. Elsea. That is true. Sometimes they look at that as a
requirement; soldiers are required to give their identification
for purposes of----
The Chairman. I guess what I am saying is I think the
President would have been well advised to have expounded on his
statement that we weren't going to treat these people like
prisoners of war. But my understanding is it was to that point,
whether or not we could do a persistent interrogation, that
that position by the Administration was taken. I am glad they
took it because I think it saved a lot of American lives and I
think you are right, if he would have parsed it and conditioned
it and made that statement with that expansion that you have
just gone through, he could have explained they really aren't
prisoners of war and therefore Geneva doesn't apply to them and
therefore all you guys that are hounding me to follow the
Geneva Conventions, you are in the wrong room, then that would
have been great.
I think his statement was interpreted as meaning we were
going to treat people inhumanely and I think the second part of
that statement was they would be treated humanely.
Mr. Scharf. Mr. Chairman, if I could add context. You are
giving a very generous spin to what the President said. If you
recall, at the time he said that he also----
The Chairman. He deserves it every now and then.
Mr. Scharf. At the time he said that he also was against
the idea of having our internal tribunals decide on a case-by-
case basis whether there were people who were prisoners of war
versus people who were unlawful combatants. That policy has
changed. We now have Article 5 tribunals.
Also, the President now after Hamdan has done as an
executive order the decision that the Geneva Conventions do
apply.
I believe that he was being clear that he was going to
treat these people humanely but without the definitions and the
caveats of what Article 3 would require. And his intent, and
especially if you look at the White House memos that have now
been made public, seems to be to keep this body of people
completely outside of the Geneva Conventions and within his
full discretion to decide what humane treatment was without any
kind of supervision. And the law according to the Supreme Court
has evolved on that ground and the President has agreed with
that.
The Chairman. That is true. But in the Geneva Convention
the term humiliate and degrade, et cetera, even those words and
terms have been conditioned by us in our self-interest and our
interest for security by the so-called McCain language which
says that they are conditioned by the reservations that the
United States has made with respect to those words. Otherwise
you could find, at least it could be argued, for example, that
interrogating a Muslim defendant with a woman interrogator is a
humiliating act or a degrading act, and so Senator McCain's
language which basically restated the reservation was probably
in order. Even that part of the Geneva Convention at least
needed to be conditioned and modified, expanded upon in order
to be acceptable and consistent with our security requirements.
But I think as we move forward we are tilling new ground,
kind of creating a new system, and I think your commentary has
been really, really, good, really instructive, and the back and
forth with members has been great.
As you see, we have got a lot of smart folks here and they
have all been thinking about how we are going to put this new
animal together. And you have really, really contributed to
that process. Thank you for letting me interchange with you a
little bit here and thanks for your service to our country. I
greatly appreciate it.
Is there anything anybody would like to make in final
remarks here? Thanks for your endurance in this. And this
hearing is adjourned.
[Whereupon, at 3:50 p.m., the committee was adjourned.]
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A P P E N D I X
July 26, 2006
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QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD
July 26, 2006
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QUESTIONS SUBMITTED BY MR. HUNTER
The Chairman. If we are characterizing these people as terrorists
and the shooting of the RPG that the sergeant witnessed is a terrorist
act, and that is a crime, then you have, just as the sergeant saw the
person shoot at him with the handgun and threw him over the squad car
and advised him of his rights, at that point in domestic law we say
that the defendant has become the focus of suspicion that he committed
a crime.
Would not the terrorist when he commits a terrorist act that you
see and you now capture him and you throw him over a Humvee, is he not
now suspected of a crime, the focus of suspicion at that point?
Ms. Elsea. [The information referred to can be found in the
Appendix on page 107.]
______
QUESTIONS SUBMITTED BY MR. SKELTON
Mr. Skelton. Historically, did military commissions generally
follow courts-martial procedures and rules and structures that were in
effect at the time?
Mr. Scharf. Yes. Early American military commissions, despite an
absence of mandatory guidelines, closely modeled procedural rules on
those used in courts-martial, and enforced common-law rules of
evidence. The difference between the two was mainly jurisdictional. In
WWII, many procedural rules were suspended in military commissions, and
the two types of tribunals developed procedural differences.
Early American Military Commissions: The Mexican War
The first examples of U.S. military commissions occurred during the
Mexican War of 1846-1848. The Mexican War was the first war fought by
Americans wholly outside American territory, and as such the military
had no practical access to American civilian magistrates. Common law
crimes could not be tried by court-martial procedures because, at the
time, court-martial jurisdiction was restricted to military crimes that
could not be tried by civilian magistrates, such as desertion. David
Glazier, Precedents Lost: The Neglected History of the Military
Commission, 46 Va. J. Int'l L. 5 (2005). A gap formed, such that
common-law offenses by American servicemen could not be easily brought
to justice, yet it was important to reign in the soldiers' criminal
behavior, because local resentment was dangerous to American war
objectives. See Id. at 24. General Winfield Scott (who is credited with
coining the term ``military commission'') ordered the creation of
special courts that would fill this gap, with authority to try any
criminal case in which a serviceman was a victim or accused
perpetrator. Scott based the procedure of these early military
commissions upon the model of the court-martial proceeding. He wrote
that ``such commissions will be duly recorded, in writing, reviewed,
revised, disapproved or approved, and the sentences executed all, as in
the cases of the proceedings and sentences of courts-martial.'' See Id.
at 33. General Scott did not authorize his military commissions to use
the same range of punishment available to courts-martial. He limited
the commissions to ``known punishments in like cases, in . . . one of
the States of the United States of America.'' Id. at 33-34. Courts-
martial were, at the time, only restrained by the Articles of War, and
therefore utilized penalties including tarring and feathering, branding
and other forms of physical brutality. See William Winthrop, Military
Law and Precedents 6-8 (2d ed. 1920) at 667-75.
Civil War
Thousands of military commissions took place during and just after
the Civil War, trying both soldiers and civilians, and both war crimes
and common-law crimes. See Timothy MacDonnell, Military Commissions and
Courts-Martial: A Brief Discussion of the Constitutional and
Jurisdictional Distinctions Between the Two Courts, 2002 Army Lawyer 19
(2002). There was a continuing ``close conformance of the court-martial
and the military commission, including identical post-trial review . .
. [and] federal judicial review . . . on exactly the same terms.'' See
Glazier, supra at 46.
Philippines
Military commissions figured prominently, from 1898 to 1902, in the
U.S. involvement in the Philippines. The Philippine military commission
procedures still closely resembled courts-martial procedures. This
time, the scope of punishment available to military commissions was
more broadly defined: they had to resemble civilian U.S. punishments
``as far as possible'' or alternately, could be modeled on the ``custom
of war.'' Court-martial procedures were not similarly restricted. See
Glazier, supra at 50. Where the procedures of the two types of
tribunals differed, the Philippine military commissions offered more
procedural protections to the accused than did contemporary courts-
martial. Importantly, the Philippines military commissions originally
required commander review and approval for all punishments. See
Glazier, supra at 49. (By contrast, courts-martial only provided for
commander review in cases of cashiering an officer, trials where the
accused was a general, or where the convicted was sentenced to death.)
Later, military commission review was restricted to sentences involving
ten years or more, but this still effectuated far more review than did
courts-martial proceedings. See Glazier, supra at 50. Additional
protections were introduced to military commissions, including a
prohibition against cruel or unusual punishment and a guarantee of a
trial unencumbered by unnecessary delay. See Glazier, supra at 49.
Minor procedural errors ``were typically not fatal'' to either courts
martial or military commissions, but both types of proceedings
consistently applied the common law rules of evidence by, for example,
heavily disfavoring hearsay evidence. See Glazier, supra at 53.
1916-WWI
``Prior to the enactment of 1916 language, military commissions and
courts-martial were clearly differentiated on the basis of
jurisdiction, not procedure''. See Glazier, supra at 58. The 1916
Articles expanded concurrent jurisdiction between the military
commissions and courts-martial, but even then, the choice of tribunal
was made largely based on geographical or temporal convenience, not on
procedural differences. Procedural differences were few and minor, and
created little incentive for forum shopping. See Glazier, supra at 58.
Military commissions and courts-martial were convened in American-
occupied post-WWI Germany (Rhineland). U.S. command issued detailed
procedural guidelines for the courts-martial, but rather than write out
procedural rules for the military commissions, U.S. command simply
advised that the commissions' procedures ``will be in substance the
same as in trial by General Courts-Martial.'' See David Glazier,
Kangaroo Court or Competent Tribunal: Judging the 21st Century Military
Commission, 89 Va. L. Rev. 2005 (2005) at 2048.
WWII
During WWII, there were significant departures from military
commission procedural traditions. The most striking example is the
military commission set up to try eight Nazi saboteurs caught on the
East Coast of the U.S. in July 1942. President Roosevelt convened the
military commission despite the availability of U.S. courts, because
there was not a crime on the books that captured the saboteurs' conduct
fully while offering sufficiently deterrent punishment. See id. at
2054. This military commission disregarded many of the rules of
procedure and evidence that had been recognized in military commissions
and courts-martial in the past. The President's order authorized the
tribunal to improvise its own procedural rules, prohibited any form of
judicial review, and stipulated a special, low evidence burden:
`probative to a reasonable man'. See id. at 2056. Despite the
President's order suspending review, the Supreme Court reviewed the
commission's jurisdiction in a special July term, and upheld the
legitimacy of the commission. See Ex Parte Quirin, 317 U.S. 1 (1942).
After 1945, most of the WWII military commissions were Allied
efforts, not exclusively under American control. Military commissions
held in Germany were controlled by Control Council Law number 10, which
outlined crimes and punishments but left rules and procedures to the
discretion of Zone Commanders. See David Glazier, Precedents Lost: The
Neglected History of the Military Commission, 46 Va. J. Int'l L. 5
(2005), at 71. Pacific military commissions were controlled by the
Supreme Commander Allied Powers (SCAP), which outlined some procedural
rules for military commissions and left the remaining procedural gaps
to the discretion of the commission. See id. at 71. The specified
procedural rules included significant departures from military
commission procedural history. For example, confessions were admissible
without proof that they were made voluntarily, potentially senile or
insane defendants stood trial, and judges did not have to recuse
themselves if biased. See Evan Wallach, Afghanistan, Quirin, and
Uchiyama, Does the Sauce Hit the Gander, 2003 Army Law, 18 (2003).
UCMJ
In 1950, Congress enacted the Uniform Code of Military Justice
(UCMJ) as a uniform military law for all branches of the U.S. Armed
Forces, replacing the old Articles of War. Many sections of the
Articles of War were largely adopted in the UCMJ. See MacDonnell, supra
at 21. The UCMJ discusses military commissions and courts-martial, and
it establishes a permanent court of appeals for courts-martial
procedures. See Kevin Barry, Military Commissions: Trying American
Justice, 2003 Army Law, 1 (2003). The UCMJ, in 1950 and today,
continues to tie the procedures of military commissions to the model of
courts-martial. It states that ``military commissions and provost
courts shall be guided by the appropriate principles of law and rules
of procedures and evidence prescribed for courts-martial''. See id. at
4.
Mr. Skelton. Did the drafters of the Hague and Geneva Conventions
have knowledge and experience with irregular warfare and asymmetric
weapons and tactics?
Mr. Scharf. Irregular forces, and those who engage in asymmetric
warfare are not unique to the contemporary Global War on Terrorism.
Irregular forces and the tactics of asymmetric warfare were used during
the American Revolution, conflicts with Native Americans, the Franco-
Prussian War, the Russian Civil War, the Second Boer War, and in the
Eastern Front of World War II. The use of asymmetric warfare had also
been employed by the U.S. and Britain in the nineteenth century through
covert action to protect their commercial and security interests. See
Kinzer, Stephen. Overthrow: America's Century of Regime Change from
Hawaii to Iraq, Times Books, New York, at 1-6, 35, 129. For these
reasons, the drafters of the Hague and Geneva Conventions had a great
deal of knowledge and experience with irregular warfare and asymmetric
weapons and tactics.
With the adoption of the Hague Convention of 1899, fears of aerial
combat by ``the launching of projectiles and explosives from balloons,
or by other new methods of a similar nature'' were allayed by a five
year ban. The Hague Conventions of 1899 and 1907 defined legitimate
military targets. However, because of limited technology at the time
and the height from which such bombs were dropped, indiscriminate
bombing campaigns took great tolls on civilian populations during World
War I. During this period military strategists supported attacking
civilian populations to destroy the morale of their enemies, ignoring
early principles exempting civilian populations from attack. Reynolds,
Jefferson D., Collateral Damage on the 21st century Battlefield: Enemy
exploitation of The Law of Armed Conflict, and The Struggle For The
Moral High Ground. 56 A.F.L. Rev. 1, at 9.
There was an attempt to develop rules for choosing aerial military
targets, and to condemn the attack of civilians in the 1923 Hague
Conference and the 1938 Amsterdam Conference, but indiscriminate air
strikes were deemed too desirable to eliminate. Hague Rules of Aerial
Warfare, Feb. 19, 1923, 32 A.J.I.L (Supp.) 12 (1938). Before World War
II, the Italian strategist Guilio Douhet predicted that aerial warfare
would mark the end to civilian immunity, regardless of treaty
obligations. ``We dare not wait for the enemy to begin using so called
inhuman weapons banned by treaties before we feel justified in doing
the same . . .'' Giulio Douhet, The Command of the Air 195 (Dino
Ferrari Trans., 1942). Large scale German bombing raids targeted London
in 1940, attacking ordinary civilians and British morale. Mass murder
and mass rape of civilians were reported when the Germans invaded
Poland. Later in 1945, civilians were targeted with nuclear weapons by
the U.S. in the bombing of Hiroshima and Nagasaki. Id. at 16.
At the close of World War II, curbing civilian bombing, mass
destruction, murder, rape and looting was then a central goal of the
drafters of the Geneva Convention. It is true that conventional warfare
was on the minds of the Geneva Conventions drafters, but they were also
quite concerned with the asymmetric weapons and unconventional means of
warfare so recently employed in the War. The Geneva Conventions were
created to regulate armed conflict of all kinds.
Mr. Skelton. Are you confident that military commissions can
effectively try modern crimes against the laws of war with a new
paradigm of al Qaeda and its affiliates in international terrorism?
Mr. Scharf. Military commissions can effectively try modern crimes
against the laws of war, including crimes committed by members of al
Qaeda and other international terrorists if they adhere to the Geneva
Conventions, which will ensure that the commissions enjoy public and
international support. The international community has embraced the
recent work of the international tribunals for the former Yugoslavia
and Rwanda, as well as the International Criminal Court. The
international acceptance of these institutions can be attributed to
strictly adhering to the Geneva Conventions, being open to the public,
and enabling the media to report on the fairness of the trials. At the
same time, the international courts have been designed to protect
sensitive material by the design of their courtrooms and the procedures
by which they present evidence. Military commissions that follow the
precedents and rules of the international tribunals would send a clear
message to the international community that detainees receive fair and
open trials, that the United States respects its world allies and their
institutions, and that terrorists cannot escape justice.
Mr. Skelton. Are you aware of any other time in history since 1949
that any signatory nation made it a matter of policy that Common
Article 3 of the Geneva Conventions would not apply to any captives?
Did the U.S. make an exception for other non-signatories and irregular
forces who did not qualify as POWs or follow the laws of war--Somalian
warlords, Viet Cong, etc.?
Mr. Scharf. I am not aware of any other time in history since 1949
that a signatory nation has made it a matter of policy that Common
Article 3 of the Geneva Conventions would not apply to any captives in
an armed conflict. The usual military answer is that the military
trains to Geneva, a standard higher than Common Article 3; therefore,
before the ``War on Terror,'' Common Article 3 had never before been an
issue. One passing reference can be found regarding the conflict in
Somalia, but it pertains to the treatment of an American captured by
the Somalians, not a Somalian in U.S. custody. When Michael Durant, a
U.S. army helicopter pilot was captured, the United States at first
demanded POW status for him, but then quickly recanted. The U.S. argued
that it was operating under a UN mandate and therefore its personnel
were immune from capture; As a UN peacekeeper, Durant was an
internationally protected person; Durant should consequently be
released immediately, rather than detained until the end of hostilities
as a POW. Steven J. Lepper, The Legal Status of Military Personnel in
United Nations Peace Operations: One Delegate's Analysis, 18 Hous. J.
Int'l L 359, 361-365 (1996).
There are, in contrast, examples of States, including the U.S.,
according irregular forces the full protections of the Geneva
Conventions. During the Vietnam conflict, for example, the National
Liberation Front (NLF or Viet Cong) argued that it did not have to
accord captured U.S. soldiers the protections of the Geneva Conventions
because they were ``pirates engaged in unprovoked attacks on North
Vietnam.'' Consistent with this view, prisoners in the control of the
NLF were often subjected to abusive treatment, including starvation,
caging, and bare foot jungle marches which would have violated Common
Article 3. The United States argued that the Geneva Conventions did
apply to the NLF, and that the NLF was prohibited from engaging in acts
of torture, humiliation, or summary execution. At the same time, the
United States government urged the South Vietnamese to accord NLF
prisoners POW status, despite the fact that the NLF fighters did not
wear a distinctive uniform and employed acts of terrorism. See Major
General George S. Prugh, Vietnam Studies, Law at War: Vietnam 1964-1973
(U.S. Army Center of Military History 1974), available at http://
www.army.mil/cmh-pg/books/vietnam/law-war/law-fm.htm).
Mr. Skelton. Is there commentary or case law relevant to the laws
of war addressing the meaning of the terms in Common Article 3 and the
meaning of ``coercion'' indicating that transgressions must be of a
``serious'' nature to be considered violations of the laws of war or
war crimes?
Mr. Scharf. Prior to the first Appeals Chamber decision in
Prosecutor v. Tadic of the International Criminal Tribunal for the
Former Yugoslavia in 1995, most commentators believed the concept of
individual criminal responsibility did not extend to internal armed
conflicts. See Preliminary Remarks of the International Committee of
the Red Cross, reproduced in 2 Virginia Morris and Michael Scharf, an
Insider's Guide to the International Criminal Tribunal for the Former
Yugoslaviva 391, 392 (1995) (the ICRC ``underlines the fact that,
according to International Humanitarian Law as it stands today, the
notion of war crimes is limited to situations of international armed
conflict.''). By a four-to-one vote, the Appeals Chamber of the
Yugoslavia Tribunal decided that the concept of individual criminal
responsibility applied to ``serious'' violations of Common Article 3 in
internal armed conflict because ``the distinction between interstate
wars and civil wars is losing its value as far as human beings are
concerned.'' Prosecutor v. Tadic, Case No. IT-94-1-AR72 (Appeals
Chamber, Decision on the Defense Motion for Interlocutory Appeal of
Jurisdiction, October 2, 1995), at para. 68. The Yugoslavia Tribunal
defined ``serious'' as ``a breach of a rule protecting important
values, and the breach must involve grave consequences for the
victim.'' Id. at para. 62. The example provided by the Tribunal as a
transgression that is a violation, though not a serious one is that of
a combatant appropriating a loaf of bread in an occupied village
running afoul of the requirement of an occupying army to respect
private property. Id.
Unlike the provisions of the Geneva Conventions applicable to POWs,
Common Article 3 does not specifically prohibit ``coercion'' (use of
interrogation techniques employed against an unwilling subject), though
it does require that detainees be treated ``humanely'' and prohibits
``cruel'' or ``humiliating and degrading treatment.'' Because the
Yugoslavia Tribunal precedent indicates that Common Article 3
violations must be ``serious'' to be prosecutable as a war crime, only
serious forms of coercion amounting to inhumane, cruel, humiliating, or
degrading treatment would be covered.
Mr. Skelton. Please explain the genesis and meaning of the American
Service Members Protection Act relative to 18 U.S.C. Section 2441 (War
Crimes Act) and International law of war violations and the
International Criminal Court (Rome Treaty)?
Mr. Scharf.
Establishment of the War Crimes Act:
In 1996 Congress enacted the War Crimes Act (18 U.S. Code Section
2441), which ``made punishable a grave breach of the Geneva Conventions
whether committed within or outside the United States, if the victim or
perpetrator is a U.S. service member or national.'' Robinson O.
Everett, American Service Members and the ICC, in The United States and
the International Criminal Court 137, 143 (Sarah B. Sewall & Carl
Kaysen eds., Rowman & Littlefield Publishers 2000). In 1997, Congress
passed the Expanded War Crimes Act, which replaced ``grave breach''
with ``war crime.'' The term ``war crime'' was defined to include
violations of the Amended Protocol on Land Mines, certain articles of
the Annex to Hague Convention IV and of Common Article 3 of the Geneva
Conventions; as well as violations of the Geneva Conventions that were
punishable in the War Crimes Act of 1996. Id. at 143. The War Crimes
Act establishes U.S. criminal jurisdiction to prosecute accused war
criminals in U.S. Federal Court or military courts-martial. The
language of the statute applies to both foreigners who commit war
crimes against U.S. nationals and personnel and U.S. citizens and
personnel who commit war crimes. Id. at 144.
Because the War Crimes Act applies to acts that occurred either
inside or outside United States territory if the victim is a U.S.
national or service member, the United States can prosecute members of
al Qaeda and other terrorist organizations under this act. Al Qaeda and
its operatives committed terrorist acts, in violation of the Geneva
Conventions, against U.S. citizens and service members. Detainees at
Guantanamo Bay and elsewhere are subject to jurisdiction in U.S.
Federal Courts under the War Crimes Act.
The American Service Members' Protection Act and Obligations of Non-
Party States
Congress enacted The American Service Members' Protection Act of
2002 in order to minimize the possibility that U.S. nationals and
specifically U.S. Military personnel would be prosecuted by the
International Criminal Court (ICC). Section 2002, paragraph 11 of the
American Service Members' Protection Act states: ``It is a fundamental
principle of international law that a treaty is binding upon its
parties only and that it does not create obligations for non-parties
without their consent to be bound.'' This assertion is not wholly
accurate in international law and if the United States adhered to that
standard its capability to effectively fight terrorism and prosecute
terrorists would be hindered. See Michael P. Scharf, Application of
Treaty-Based Universal Jurisdiction to Nationals of Non-Party States,
35 New Eng. L. Rev. 363, 367 (2001).
Paragraph 11 of the Preamble of The American Service Members'
Protection Act is based on a misreading of the Vienna Convention on the
Law of Treaties, which provides: ``A Treaty does not create either
obligations or rights for a third state without its consent.'' Vienna
Convention on the Law of Treaties, art. 34, (May 22, 1969). Article 35
states that, ``An obligation arises for a third State from a provision
of a treaty if the parties to the treaty intend the provision to be the
means of establishing the obligation and the third State expressly
accepts that obligation in writing.'' Id. at art. 35. This means that a
Treaty cannot establish obligations on a Non-Party State, unless that
State expressly assumes that obligation. ``The legal objection to
treaty-based jurisdiction over non-party nationals is perhaps better
cast as a claim that such exercise of jurisdiction would abrogate the
pre-existing rights of non-parties which, in turn, would violate the
law of treaties.'' Michael P. Scharf, Application of Treaty-Based
Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L.
Rev. 363, 376 (2001). However, States do not have a right to exercise
exclusive jurisdiction over their nationals. Under international law a
State and its nationals are two distinct legal entities, just as a
corporation and its shareholders are distinct entities. Therefore a
State is not infringing upon the sovereignty of another State by
prosecuting the latter's national under treaty-based universal
jurisdiction.
U.S. Use of Treaty-Based Universal Jurisdiction over Nationals of Non-
Party States
The U.S. has exercised treaty-based universal jurisdiction over
nationals of Non-Party States with respect to ``stateless'' vessels
involved in narcotics trafficking. In United States v. Marino-Garcia,
the U.S. Eleventh Circuit Federal Court of Appeals held that the 1958
Law of the Sea convention gave the U.S. jurisdiction to prosecute
Columbian and Honduran crew members whom were apprehended on the high
seas by the U.S. Coast Guard. United States v. Marino-Garcia, 679 F.2d
1373 (11th Cir. 1982). ``The Court was not troubled by the fact that
neither Honduras nor Colombia were parties to the 1958 Law of the Sea
Convention nor that customary international law did not authorize
prosecution of crew members of a `stateless' vessel.'' Michael P.
Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals
of Non-Party States, 35 New Eng. L. Rev. 363, 379 (2001).
In United States v. Yunis, the D.C. Circuit Federal Court of
Appeals addressed the question of universal jurisdiction under anti-
terrorism treaties with respect to nationals of Non-Party States.
United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). In Yunis, the
U.S. government prosecuted a Lebanese national for hijacking a
Jordanian airliner from the Beirut airport with two U.S. citizens as
passengers. Id. The United States asserted jurisdiction over Yunis on
the basis of the International Convention Against the Taking of
Hostages, even though Lebanon was not a party to the treaty and did not
consent to the prosecution of Yunis. Michael P. Scharf, Application of
Treaty-Based Universal Jurisdiction to Nationals of Non-Party States,
35 New Eng. L. Rev. 363, 380 (2001). The Court upheld its jurisdiction
based on domestic legislation implementing the Convention. Id. at 380.
The Yunis decision was reaffirmed in United States v. Ali Rezaq, where
the U.S. prosecuted a Palestinian for hijacking an Egyptian airliner,
despite the fact that Palestine (Ali Rezaq's claimed country of
nationality) is not a party to the Hague Hijacking Convention. Id. at
380. See also, United States v. Ali Rezaq, 134 F.3d 1121 (D.C. Cir.
1998).
``In light of these precedents, the claim that a treaty cannot
lawfully provide the basis of criminal jurisdiction over the nationals
of Non-Party States, while directed against the ICC, has the potential
of negatively effecting existing U.S. Law enforcement authority with
respect to terrorists.'' Michael P. Scharf, Application of Treaty-Based
Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L.
Rev. 363, 381 (2001). Some might argue that if the U.S. government
adopts the application of applying universal jurisdiction to nationals
of Non-party states, the U.S. government will be subjecting its
servicemen to jurisdiction before the ICC. But the ICC's
``complementarity'' regime prevents the ICC from asserting jurisdiction
over any U.S. servicemember if the United States itself investigates
the case and makes a decision about whether or not to pursue
prosecution in good faith. Rome Statute, art. 17, (July 1, 2002).
Robinson O. Everett, American Service Members and the ICC, in The
United States and the International Criminal Court 137, 141 (Sarah B.
Sewall & Carl Kaysen eds., Rowman & Littlefield Publishers 2000).
Mr. Skelton. In response to a question from Congresswoman Sanchez,
you said you would want to consider the expansion of military
commissions' jurisdiction beyond the laws of war in Geneva and other
international law to crimes under domestic law like ``conspiracy'' that
could be tried by a Federal Court or a new Article III national
security type court, you said you thought that might be problematic.
Can you please provide a fuller response to this question for the
record?
Mr. Scharf. Consistent with the Geneva Conventions and customary
international law, Military commissions have universal jurisdiction to
try those accused of violations of the laws of armed conflict and other
international law violations. Ex Parte Quirin, 317 U.S. 1, 27-8 (1942).
In contrast to various universally-accepted bases of individual
criminal responsibility such as aiding and abetting, incitement, and
joint criminal enterprise liability, ``conspiracy'' to commit war
crimes has not been recognized as a crime of universal jurisdiction by
the international community. Warren Richey, ``Is Conspiracy a War
Crime?'' Christian Science Monitor, August 14, 2006, at 2.
Consequently, if a military commission, whose universal jurisdiction is
based on the existing laws of armed conflict, were to prosecute
conspiracy, this would be viewed as an exorbitant exercise of
jurisdiction by the international community. The practical consequence
would be that foreign countries would refuse to cooperate with such a
prosecution. They would decline to provide evidence, supply witnesses,
to extradite defendants. And they would lodge protests if their
citizens were being prosecuted for conspiracy before a military
commission exercising universal jurisdiction.
In contrast, foreign governments have no objection when the United
States prosecutes conspiracy pursuant to its territorial or
nationality-based jurisdiction. They understand that it is perfectly
appropriate for the United States to prosecute conspiracies that are
committed on U.S. territory or by U.S. citizens. Prosecuting conspiracy
only becomes controversial when the United States is exercising
universal jurisdiction over foreign citizens for actions committed
abroad.
In the absence of a treaty creating universal jurisdiction over a
particular offense (such as hijacking, airplane sabotage, or hostage
taking), a U.S. federal court or Article III court can exercise
universal jurisdiction only over offenses recognized as universal
jurisdiction crimes under customary international law. This proposition
was confirmed in the recent case of United States v. Yousef, 327 F.3d
56 (2003), in which the U.S. Court of Appeals for the Second Circuit
dismissed those counts in the indictment that were based on ``universal
jurisdiction'' because lacking an internationally accepted definition,
``terrorism--unlike piracy, war crimes, and crimes against humanity--
does not provide a basis for universal jurisdiction.'' Thus, the United
States would be better off confining the prosecution of al Qaeda
terrorists to internationally recognized crimes and universally
recognized bases of accomplice liability.
Mr. Skelton. In response to a question from the Chairman on Common
Article 3 and questioning beyond name, rank and serial number, it
appeared that all of the panelists agreed that POWs are only required
to give this information but may be and usually are questioned
persistently for more information. All panelists seemed to agree that
the detainees probably did not warrant POW status under the Geneva
Conventions, but that they did warrant the minimum protections required
by Common Article 3 for non-POWs. The Chairman seemed to indicate there
would be an issue of different religious or cultural definitions of the
terms of Article 3 and that the U.S. had taken reservations to Common
Article 3 either at the time of signing or through the DTA of 2005
(McCain Amendment).
Please provide your understanding of case law or commentary on
Common Article 3 and Additional Protocol I, Article 75 as to what would
constitute a violation of Common Article 3 standards of treatment of
detainees who are not POWs and what reservations, understandings, or
declarations the U.S. has taken since 1949 on these international
treaties?
Mr. Scharf.
Reservations, Declarations, Understandings
The United States ratified the Geneva Conventions of 1949 on August
2, 1955. While the United States made several reservations to the
Geneva Conventions, none were directly related to Common Article 3.
Most of the United States' reservations were limited to objections to
other countries' reservations. Of the substantive reservations, the
first reservation relates to the use of the Red Cross emblem and the
second relates to the right of the United States to impose the death
penalty. International Committee on the Red Cross--Geneva Conventions
1949: United States of America reservation text, http://www.icrc.org/
ihl.nsf/0/D6B53F5B5Dl4F35AC 1256402003F9920?OpenDocument (last visited
August 31, 2006). Neither of these re-
servations directly refers the text of Article 3, leaving the United
States little
legal ground to stand on in the event that it chooses to override the
provisions of Article 3.
The United States has signed but not yet ratified Protocol I
Additional to the Geneva Conventions of August 12, 1949, and relating
to the Protection of Victims of International Armed Conflicts
(``Protocol I''). Although the United States has persistently objected
to the operation of several articles of Protocol I, it has not stated
any objections to Article 75. International Committee on the Red
Cross--Addition Protocol I 1977, http://www.icrc.org/ihl.nsf/COM/470-
750096?OpenDocument. Moreover, the standards set forth in Article 75 of
Protocol I and Article 3 are now regarded as part of customary
international law. Kriangsak Kittichaisaree, International Criminal Law
188 (2001).
The McCain Detainee Amendment (MDA) prohibits the inhumane
treatment of prisoners, including detainees, by limiting interrogation
techniques to those listed in the United States Army Field Manual on
Intelligence Interrogation. President George W. Bush approved the
legislation on December 30, 2005. At the time, the President issued a
signing statement, declaring that he will view the interrogation limits
in the context of his broader powers to protect national security.
Boston Globe, Jan. 4, 2006. Some experts have opined that President
Bush believes he can still authorize harsh interrogation tactics when
he sees fit. Id.
Religious or Cultural Requirements of Common Article 3 and Article 75
Common Article 3, so called because it was common to each of the
Geneva conventions, is often referred to as a ``convention in
miniature'' or a ``convention within a convention'' that provides a
general formula covering respect for intrinsic human values that would
always be in force, without regard to the characterization the parties
to a conflict might give it. See Jean Pictet, Humanitarian Law and the
Protection of War Victims 32 (1975). Common Article 3 applies in cases
of armed conflict not of an international character and provides
minimum standards of treatment of persons taking no active part in the
hostilities, including detainees. It requires that all persons be
treated humanely and prohibits at any time or any place: ``(a) violence
to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture; (b) taking of hostages; (c) outrages upon
personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.'' This standard has been held out as ``a minimum
yardstick of protection'' in all conflicts. See The Army JAG School Law
of War Handbook at 144 (quoting Nicaragua v. U.S. (1986), I.C.J. Rep.
14, p. 218, 25 I.L.M. 1023) and JAG Course Deskbook at I-15 (citing
Prosecutor v. Dusko Tadic (1995), Case No. IT-94-1-AR72, Int'l Crim.
Trib. For Fmr. Yugoslavia, reprinted in 35 I.L.M. 32.
In Hamdan v. Rumsfeld, the Supreme Court ruled that Hamdan was
protected under the Geneva Conventions, which require more procedural
protection than the military commissions provide. Since the Supreme
Court has recently held that the provisions of the Geneva Convention
apply to detainees such as Hamdan, not only are detainees required to
have a minimum level of due process, but they must also be accorded the
rights ensured in subset (c) of Article 3. Detainees must not be made
to suffer ``outrages upon personal dignity'' or ``humiliating and
degrading treatment''.
Article 75 of Additional Protocol I builds upon the standards set
forth in Article 3 and provides more detail as to what acts are
specifically prohibited. In particular, Article 75(2)(b) prohibits
``[o]utrages upon personal dignity, in particular humiliating and
degrading treatment, enforced prostitution and any form of indecent
assault'' regardless of status. Although the United States has not
ratified the Additional Protocol I, in Hamdan, Justice Stevens noted
that Article 75 reflected an accepted expression of customary
international law.
Certain practices unlikely to humiliate United States military
personnel such as being shaved or being forced to shave may, in fact,
be considered humiliating and degrading treatment with respect to
detainees of certain religious and cultural backgrounds. Capt. Stephen
Erikkson, Humiliating and Degrading Treatment Under International
Humanitarian Law: Criminal Accountability, State Responsibility, and
Cultural Considerations, 55 A.F.L. Rev. 269, 271 (2004). In deciding
degrading treatment cases arising under the European Convention for the
Protection of Human Rights (whose provisions are similar to Common
Article 3 and Article 75), the European Court of Human Rights has
indicated that such treatment ``must [have] attain[ed] a minimum level
of severity.'' Republic of Ireland v. United Kingdom, 2 E.H.R.R. 25
(ser. A) (1978) at P 162. For purposes of Common Article 3 and Article
75, ``Humiliation is not a form of mild embarrassment, which marked by
momentary awkwardness, fades into humorous memories with the passage of
time. Humiliation is a piercing arrow that wounds the heart and, in the
worst of cases, kills healthy esteem. Although eliminating all
humiliation from war is Utopian, prosecuting those who consciously
decide to violate the protective categories is not.'' Erikkson, supra,
at 288. Humiliation requires malicious intent, that is the actions must
either serve no legitimate purpose or an apparently legitimate purpose
(such as forced shaving to prevent the spread of head lice) which can
be shown to have been intentionally fabricated to inflict injury.
Mr. Skelton. You mentioned ICTY Rule 89(d) in your testimony. Would
you please provide a copy for the record and further explain how it
operates and how it might apply to modern military commissions?
Judge Wald. A copy of ICTY Rule 89(d) (attached) and an explanation
of how it operates and how it might apply to military commissions. Rule
89(d) allows a trial chamber to exclude evidence, even though it is
probative, if its value is substantially outweighed by the need to
ensure a fair trial. This rule currently operates, for example, to
exclude evidence that may have been secured by coercion, physical, or
mental, or by other methods that would be considered antithetical to
universal notions of a fair trial. It is underscored by Rule 95 which
states in even stronger language ``No evidence shall be admissible if
obtained by methods which cast substantial doubt on its reliability or
if its admission is antithetical to, and would seriously damage, the
integrity of the proceedings''. These rules provide leeway for judges
to rule inadmissible evidence secured by torture or inhumane treatment
or even trickery and deceit that so offends the judges' notions of
fairness that they do not believe a fair trial can be held on the basis
of it. In practice the judges at the ICTY have been careful to draw the
line between evidence that has been obtained merely in violation of a
national rule such as wiretapping but is not inherently offensive and
that which is secured by means that will render the trial a farce or
reprehensible in the eyes of the world, such as torture, or threats to
the defendant's family or intimidation of a minor. The rule if applied
to military commissions would work similarly; it would disallow
testimony obtained for instance in violation of the McCain Amendment in
the DTA or Common Article 3 or that ``shocks the conscience'' as in the
U.S. Constitution due process clause.
[The information referred to can be found in the Appendix on page
113.]
Mr. Skelton. The Chairman asked if ``unprivileged belligerents''
upon capture might refuse to answer questions if they learned that it
was a right under military commissions to have an attorney and not to
incriminate oneself. You did not fully answer this question due to time
constraints. To respond more fully now, given your experience with
alleged war criminals tried under the International Criminal Tribunal
for Yugoslavia, were captives completely unaware of due process rights
to not self-incriminate or to be assigned an attorney before they were
given an explicit rights advisement? Did that impact on any
interrogation or prosecution that you are aware of?
Judge Wald. In relation to advice to suspects on ``capture'' about
their rights to counsel and to remain silent. As you know ICTY suspects
are taken into custody generally only after indictment although there
is a provision in the rules for provisional detention for questioning
pursuant to a judge's order if it is shown that the suspect may have
committed a crime and may flee or destroy evidence (Rule 40 bis).
Either way the suspect may not be questioned by the Prosecutor until he
has appeared before the judge, been appointed a lawyer, told of his
right to be silent, provided an interpreter and told of his right to be
silent. All questioning is recorded. There is of course always a
practical judgement to be made in field interrogations of potential
witnesses at what point a witness becomes a suspect and the notice of
rights comes into being since not every potential witness is warned
before questioning. My impression is that higher level suspects,
military officers, civilian mayors or prefects etc. did know of their
rights certainly by the time they were apprehended after indictment but
that some of the lower level suspects, prison guards etc. may not have.
I was also quite surprised by the fact that even with lawyers,
defendants did agree to be questioned by prosecutors before trial,
probably in the hopes that their version might result in the
prosecutors taking a more lenient attitude toward them. This was
especially true with the advent of the guilty plea rule which permitted
prosecutors to recommend lowered sentences for pleas and cooperation
and to drop counts in the original indictment. I have not personally
heard prosecutors complain they were hindered by the requirement of
notice.
Mr. Skelton. In response to a question from Congresswoman Sanchez
about expanding the jurisdiction of military commissions beyond those
recognized as violations of the laws of war in international laws and
treaties to domestic crimes, you said specifically that ``conspiracy''
was a problem and even ruled out by U.S. Ambassador Francis Biddle for
Nuremberg. Could you give a fuller answer as to the challenges or
benefits of expanding the jurisdiction of military commissions to
domestic crimes and give your recommendation?
Judge Wald. In the inclusion of conspiracy and other domestic
crimes within the jurisdiction of the military tribunals, as I
mentioned in my testimony, the crime of ``conspiracy'' is not familiar
to most countries outside the U.S. and the U.K. Although included in
the original Nuremberg indictment the non-American judges were
suspicious of it and even Francis Biddle in his own words, said ``I
would not at present vote any defendants guilt on the conspiracy charge
I had learned to distrust conspiracy indictments, which in our country
were used too often by the government to catch anyone however remotely
connected with the substantive crime''. (Biddle, In Brief Authority, p.
468). In its final judgement, the Nuremberg court limited conspiracy to
the crime of aggressive war. Subsequently no international court has
included conspiracy in its jurisdiction except for conspiracy to commit
genocide which is in the Genocide Convention. In most cases the listing
of the manner in which war crimes or crimes against humanity can be
committed, i.e. planning, instigating, ordering, attempting, aiding and
abetting along with the doctrines of ``criminal enterprise'' and
``common purpose'' is ample to cover all kinds of participation in
these crimes. Command responsibility, holding a superior officer liable
for the crimes of his subordinates if he knew or should have known
about them before the fact or failed to take action to punish them
after the fact, is also available for highly placed officials who
inspire but do not themselves execute the crimes. Conspiracy except for
genocide and aggressive war is not generally recognized as an
international crime, and conspiracy to commit a war crime or crime
against humanity is not part of customary international law. (See,
e.g., Werle, Principles of International Criminal Law, pars. 488-90).
Justice Stevens in the Hamdan v Rumsfeld opinion cited the eclusion of
conspiracy in the original military commission jurisdiction as outside
the law of war.
Clearly in defining the jurisdiction of military commissions
Congress has the authority to include domestic crimes but in my view it
should think long and hard before doing so. The concept of military
commissions of the type considered in this context, to try suspected
beligerants, is best kept as much as possible to the trial of crimes
recognized in international humanitarian law, the law of war. The
substantive scope of conspiracy can well be handled by the other forms
of participation mentioned above and its chief value appears to be the
evidentiary rule that the statements and acts of any conspirator can be
used against any other conspirator. In a situation like al Qaeda and
terrorist groups, the danger is precisely the one Biddle feared, the
conspiracy can be defined so broadly it includes anyone and everybody
with some connection to the terrorists, no matter how attenuated. Where
the alleged crimes are not really connected with an armed conflict,
i.e. giving aid to a terrorist group through diverted charity funds (an
example taken from a D.C. district court hearing on Guantanamo inmates)
or persons captured far from the battlefield, the use of military
tribunals is treading on unchartered territory and the use of regular
civilian courts preferable. Military commissions even if defined to
include basic rights such as presence of the accused and his access to
evidence against him, are not the equivalent of a regular civilian
court trial and investing them with large amounts of non-law of war
crimes raises the spectre of loss of civilians control over justice
machinery and the impugnment of the military justice machinery as well
which now enjoys a sterling reputation.
Mr. Skelton. As to ``vague'' terms or culturally specific
definitions of terms in international treaties and customary law, are
interpretations and rulings issued by foreign tribunals ever binding on
the U.S.? Is the U.S. obliged under domestic law (18 U.S. Code Section
2441, The War Crimes Act) or military commissions to adopt an
international tribunal's definition of the terms within Common Article
3 unless it wanted to do so?
Judge Wald. Common Article 3 is part of the Geneva Conventions to
which the U.S. is a signatory. It embodies customary international law.
That law is to be discerned from sources such as treaties, learned
commentators, and decisions but primarily it is the practices of a
majority of civilized countries which are adhered to out of obligation
as a recognition of the requirements of international law. Thus were
the U.S. or its nationals to be taken before a foreign or international
court its adherence to its treaty obligations under common Article 3
would be judged by the standards laid down in international law. This
standard would also apply if other parties to the treaty challenged our
adherence in diplomatic or non-judicial channels. When the U.S. adopts
its own domestic law defining crimes to be tried in our own courts, it
obviously has the power to modify international interpretations, since
basically congressional laws trump treaties and other international law
sources. Whether it should do so is another matter and one in which the
U.S. perception in the international community is a relevant
consideration. (It should be noted here, though not directly on point
for this discussion that some treaties require the parties to abide by
the interpretation of its terms by a stated voice, i.e. in the case of
the Vienna Treaty the International Court of Justice and the Alien Tort
claims Act speaks of ``Violations of the Law of Nations''; in these
cases unless Congress directed otherwise U.S. courts would likely look
to interpretations by international tribunals of the terms of the
treaty or the scope of the violations). As to the military commissions,
the Military Commission Instruction on Crimes and elements for Trials
(draft Feb. 28, 2003) states that;
These crimes and elements derive from the law of armed conflict, a
body of law that is sometimes referred to as the law of war. They
constitute violations of the law of armed conflict or offenses that,
consistent with that body of law, are triable by military commission.
This strongly suggests that the ``body of law'' used to interpret
the triable crimes and which consists principally of foreign and
international law would be consulted in interpreting the crimes in the
military commissions. Indeed Justice Stevens opinion in Hamdan used as
his benchmark in finding the commissions unlawful the fact that they
did not adhere to the ``law of war'' in some of their procedures and
possibly in the inclusion of conspiracy.
Now that the congress has entered the scene and will likely decide
what crimes to include in the jurisdiction of commissions, it can
choose whether to follow the route of confining the commissions to
interpretation and implementation of the international law of war or to
make them hybrid ``law of war plus'' tribunals, interpreting those
crimes according to our own dictates. I think the latter course has
dangers. The legitimacy of our apprehension, detention, and subsequent
trial of the Guantanamo detainees at least depends on international
law, as recognized in the case of detention by Justice O'connor in the
Hamdi decision a few years ago. The legitimacy of our trying those
detainees for war crimes in turn also depends on international law of
war bases; indeed if we are not to violate the nullum crimen sine lege
principle (the act must have been a crime when committed) commission
trials cannot stray too far from the interpretation of the war crimes
accepted in international law at the time they were committed. Let me
also add here that the reported consideration of listing in 18 U.S.C.
2241 (the domestic war crimes act) of a selected number of war crimes
defined in the U.S. terms is extremely troubling to me; not only does
the circulated draft define ``cruel treatment'' for Common Article 3
purposes as basically just torture but its definitions of intentionally
causing great suffering or injury and even rape and sexual assault are
more stringent than the international definitions.
Mr. Skelton. The DTA of 2005 offers an affirmative defense to
military personnel accused of violations of the Geneva Conventions
Common Article 3 acting pursuant to the President's direction and
SECDEF policies from November 2001 until the 29 June 2006 Supreme Court
ruling in Hamdan. In your experience would a charge likely be brought
in federal court? Would the affirmative defense stand up against a
charge under 18 U.S. Code Section 2441 (The War Crimes Act)? Would it
stand up in an international tribunal?
a. What would be the effect if Congress chooses to more narrowly
define the terms of Common Article 3 in domestic law to allow for more
aggressive interrogations or narrowing the due process protections of
detainees (Article 75, Protocol I, customary law) in the interest of
national security?
Judge Wald. First, I think it highly unlikely, however the
political winds blow, that military officers or soldiers who
participated in setting up the now illegal military commissions
pursuant to Presidential order would be prosecuted under the domestic
act and in the unforeseeable situation, that they were, section 1004(a)
of the DTA would not protect them. Its standard that ``they did not
know that the practices were unlawful and a person of ordinary sense
and understanding would not know the practices were unlawful'' would
likely be met by the Presidential and Attorney General opinions that
they were lawful. I also think an international standard would be met
as well by this defense.
As to torture, cruel treatment, humiliating or degrading treatment,
the situation could be more complicated. If a government official did
in fact sanction or participate in torture, cruel and inhuman treatment
during this period, when Common Article applied through 18 U.S.C. 2441,
it is quite possible that he would not meet the defense standard of ``a
person of ordinary sense and understanding'' not knowing the practices
were unlawful. ``Unlawful'' under what law, domestic or international?
The Nazi atrocities were authorized and ``lawful'' under German law (I
am not comparing the practices but only the legal norms). Thus a well
educated upper level official who sanctioned the kind of torture or
cruel treatment covered by Article 3 or even who authorized it might
not meet the standard even though there was an order authorizing it.
(If this were not so, what would be the purpose or use of international
humanitarian law banning extreme practices). In short whether use or
authorization of cruel or inhuman treatment would qualify under 18
U.S.C. 2441 might depend as would the availability of the DTA defense
on the level of the official and the blatantness of the practice.
Whether such a case would be brought I suspect would in turn depend on
how grievous was the abusive treatment and how far up the ladder was
the defendant. I believe that the same standards would apply in an
international tribunal but that there would be if anything less
deference given to the law that granted impunity after the fact. On the
last point if Congress revised 2241 to define article 3 in ways that
allowed for ``more aggressive interrogations of detainees'' or
``narrowing due process protections'' in trials, those new definitions
would trump the international definitions for purposes of domestic war
crimes prosecutions, though their retroactive application to offenses
committed before the revisions could well be disputed. The revisions
would not affect the liability of any Americans brought before an
international tribunal for Article 3 violations except insofar as they
might be used as evidence by the defendants to show that they met the
exception in international law to the general principle that obedience
to unlawful orders is not a defense to a war crime or crime against
humanity. That exception is not universally recognized but where it is,
it covers situations where the defendant did not know the order was
unlawful or it was not manifestly so, and very abusive practices are
not included in that category. According to Werle (pars. 454-)
``national courts tend to presume the manifest illegality of orders
aimed at the commission of crimes under international law'' as do the
international tribunals.
Mr. Skelton. How did the commissions that General MacArthur ran in
Japan compare to the Tokyo and Nuremberg International Military
Tribunals? Generally, what was the outcome of these trials?
Ms. Elsea. The Tokyo Trials, officially known as the International
Military Tribunal for the Far East (IMTFE), were commenced by order of
General MacArthur and employed procedural rules similar in many
respects to the rules employed at Nuremberg. General MacArthur
appointed eleven judges, one from each of the victorious Allied nations
who signed the instrument of surrender and one each from India and the
Philippines, to sit on the tribunal. General MacArthur also appointed
the prosecutor. Of the twenty-five people indicted for crimes against
peace, all were convicted, with seven executed, sixteen given life
imprisonment, and two others serving lesser terms. Two others died
before they could be brought to trial, and one was declared mentally
unfit to stand trial. Some 300,000 Japanese nationals were tried for
conventional war crimes (primarily prisoner abuse) and crimes against
humanity in national military tribunals. For more information about the
procedures employed during the Tokyo and Nuremberg tribunals, please
see CRS Report RL31262, Selected Procedural Safeguards in Federal,
Military, and International Courts.
Mr. Skelton. Who wrote the rules and procedures for courts-martial
and the Manual for Courts-martial after 1951? Typically, who advises
the Presidents on promulgating Executive Orders changing the Manual for
Courts-Martial?
Ms. Elsea. The Judge Advocates General of the Army, Navy, and Air
Force met with the General Counsel, Office of the Secretary of Defense,
to establish a joint committee comprised of legal experts representing
all three services to draft the original 1951 version of the Manual for
Courts-Martial (MCM).\1\ Today, revisions of the MCM are drafted by the
Joint Service Committee (JSC), comprised of senior judge advocates from
the Navy, Marine Corps, Army, Air Force, and Coast Guard, under the
direction of the Office of General Counsel at the Department of
Defense. Representatives of the Court of Appeals for the Armed Forces
(CAAF), DOD General Counsel, and the Joint Chiefs of Staff serve in an
advisory capacity. The organization and responsibilities of the JSC are
found in DOD Directive 5500.17. The JSC performs an annual review of
the MCM and proposes changes to DOD for the President's consideration.
The proposed changes are first printed in the Federal Register for
public comment, under procedures similar to (but not controlled by) the
Administrative Procedures Act (APA).
---------------------------------------------------------------------------
\1\ The drafting history is available at [http://www.loc.gov/rr/
frd/Military--Law/pdf/CM-1951.pdf].
---------------------------------------------------------------------------
Mr. Skelton. The Chairman asked for you to examine the case law
around advisement of rights (Article 31, UCMJ) and providing an
attorney under battlefield conditions for U.S. personnel as well as,
historically, for POWs and for a terrorist act. I would be interested
in these responses as well. Specifically whether such evidence can be
admitted in a trial if under battlefield conditions and for
intelligence or military operational necessity a prisoner was not
advised of their rights or provided an attorney when they were
questioned? And does it matter if the suspected offense is a terrorist
act?
Ms. Elsea. It has not been the practice in the military to require
that prisoners captured on the battlefield who are suspected of
committing any criminal act be given a warning regarding their right
against self-incrimination or access to an attorney. I am not aware of
any cases in which captured enemy combatants were tried under the UCMJ,
so it is impossible to say whether Article 31 would be interpreted to
require the suppression of evidence obtained through questioning
without first providing a warning. In other contexts, unwarned
statements have been admitted into evidence when the questions were
asked for reasons related to operational necessity intelligence
gathering rather than for law enforcement or disciplinary purposes.
While there is no special rule that applies only in cases involving
terrorist acts, such situations could conceivably qualify for a public
safety exception.
Mr. Skelton. Does the case law indicate whether there is a
difference in whether the primary purpose of interrogation or
questioning was for intelligence or military operational purposes or
for prosecutorial purposes? Can interrogations for any of these
purposes be ongoing together? For instance, one day a prisoner might be
interrogated for intelligence purposes without an attorney and the next
day a prosecutor may ask other questions with counsel present? And in
either case, the detainee can choose to answer questions or not answer
questions?
Ms. Elsea. The case law does indicate a difference in the
application of Article 31 to interrogations for intelligence and
military operational purposes, at least in cases where the suspect is
not in custody and has not yet been charged with an offense. Whether
the interrogations for such purposes can be ongoing together probably
depends on the extent to which the inquiries are intertwined. If
information is shared between the intelligence agents and law
enforcement officers so that the investigations merge, or if it appears
that the intelligence agents are acting on behalf of the military
prosecutor, Article 31 would likely apply with respect to all
questioning. If the inquiries are kept apart, questioning unrelated to
the prosecution might be permitted to continue. But if the suspect has
been charged with a crime and is in custody, it seems unlikely that
statements made to intelligence investigators would be admissible at
court-martial.
Mr. Skelton. Ms. Davis asked you to provide information on
statistics for convictions between Federal Courts and courts-martial. I
would like that information but narrowed to the most serious crimes,
such as those with penalties of death sentence or life sentences. Can
you also provide evidence for the conviction rates for serious crimes
under the historic military commissions and current international
tribunals? If possible, for both questions, include information on
whether the statistics change significantly upon appeals.
Ms. Elsea. I have been unable to locate data compiled in such a way
that would make such a comparison feasible. The Bureau of Justice
Statistics issues an annual report containing statistics from the
federal criminal justice system. The most recent edition compiles
statistics covering the period October 1, 2002 through September 30,
2003. The current report and the reports for the previous eleven years
are available online at [http://fjsrc.urban.org/fjs.cfm?p=pubs--ann,--
rpt&t=h]. More specifically, the Compendium of Federal Justice
Statistics provides statistics on the disposition of criminal cases by
offense. For example, Table 4.2 in the 2003 edition includes the number
of convictions for the following violent offenses (felonies): murder,
negligent manslaughter, assault, robbery, sexual abuse, kidnaping, and
threats against the president. The Code Committee on Military Justice,
the U.S. Court of Appeals for the Armed Forces, and the Judge Advocates
General of the Armed Forces jointly submit to Congress each year an
annual report that includes basic courts-martial statistics. The most
recent report covers the period from October 1, 2004 through September
30, 2005 and is available online, along with the previous eight years,
at [http://www.armfor.uscourts.gov/Annual.htm]. While each branch of
the military provides separate statistics for the report, including the
total number of convictions, the numbers are not broken down by
offense. Instead, the statistics are divided into three categories:
General, BCD [bad-conduct discharge] Special, and Non-BCD Special.
Thus, it is possible to compare overall conviction rates between
federal courts and military courts; however, it is not possible to
compare conviction rates for serious crimes inasmuch as the reported
military statistics are not defined by offense.
Mr. Skelton. In response to a question from the Chairman on Common
Article 3 and questioning beyond name, rank and serial number, it
appeared that all the panelists agreed that POWs are only required to
give this information but may be, and usually are, questioned
persistently for more information. All panelists seemed to agree that
the GTMO detainees did not warrant POW status under the Geneva
Conventions, but that they did warrant the minimum protections required
by Common Article 3 for non-POWs. The Chairman seemed to indicate that
there would be an issue of different religious or cultural definitions
of the terms of Common Article 3 and that the U.S. had taken
reservations to Common Article 3 either at the time of signing or
through the DTA of 2005 (McCain amendment).
Please provide your understanding of case law or commentary on
Common Article 3 and Additional Protocol I, Article 75 as to what would
constitute a violation of Common Article 3 standards of treatment,
including persistent questioning, of detainees who are not POWs and
what reservations, understanding, or declarations the U.S. has taken
since 1949 on these international treaties.
Ms. Elsea. The United States did not enter any reservations with
respect to Common Article 3 at the time it ratified the Geneva
Conventions. The United States has not ratified Additional Protocol I
to the Geneva Conventions; however, past Administrations have indicated
that Article 75 is a manifestation of customary international law, and
that its prohibitions are nonetheless binding on the United States as
well as all others.
Persistent questioning of detainees not entitled to POW status, by
itself, has not been found by any court to constitute a violation of
Common Article 3. Unlike the parts of the Geneva Conventions that apply
to POWs and protected persons in the context of an international war,
Common Article 3 does not explicitly forbid coercion. However,
questioning that is conducted continuously over a long period of time
could result, for example, in excessive sleep deprivation, which may
amount to cruel, inhumane, or degrading treatment within the meaning of
Common Article 3. Such questioning may also be combined with other
methods that fall below the threshold established by Common Article 3.
Prolonged questioning has been found to be inherently coercive for
purposes of the Fifth and Fourteenth Amendments to the Constitution.\2\
Therefore, prolonged questioning may violate the McCain amendment,
likely depending on the totality of circumstances surrounding the
interrogation.
---------------------------------------------------------------------------
\2\ Haynes v. Washington, 373 U.S. 503 (1962) (written confession
obtained from suspect after 16-hour incommunicado interrogation
inadmissible as involuntary); Watts v. Indiana, 338 U.S. 49 (1949) (six
days of persistent interrogation without arraignment rendered
confession involuntary for due process purposes); Ashcraft v. State of
Tennessee, 322 U.S. 143 (1944) (confession made by defendant after he
was held incommunicado and interrogated for 36 hours, without sleep or
rest, by relays of officers, experienced investigators, and highly
trained lawyers, was not voluntary).
---------------------------------------------------------------------------
Mr. Skelton. Of the ten detainees at Guantanamo (GTMO) who are
charged with war crimes, how many were captured under battlefield
conditions? a. You said in testimony that the UCMJ provides an
exception for rights advisement and provision of counsel in
emergencies. Would you expand on this answer please as to the
exceptions for Article 31 under the UCMJ?
Colonel Davis. All of those ten persons who previously had been
charged with war crimes were captured in either Afghanistan or
Pakistan, both of which are designated as combat zones. If by
``battlefield conditions'' you mean active armed hostilities at the
point of capture (i.e., an exchange of gunfire), then five of the ten
detainees were captured under such conditions. Four of the other five
detainees were captured while attempting to flee Afghanistan or
Pakistan. The fifth was captured by U.S. forces in a raid on the
detainee's home following an intelligence tip.
(a) The courts have recognized for more than 50 years (see United
States v. Gibson, 14 C.M.R. 164, 170 (C.M.A. 1954)) that the literal
application of Article 31 in every instance would have unintended
consequences on day-to-day military life and military operations. As a
result, the courts consider the surrounding facts and circumstances to
determine if Article 31 warnings are required. A key factor the courts
will consider is whether the person asking the questions is conducting
a law enforcement investigation to gather evidence for use in a
disciplinary proceeding. The case I was thinking of during my testimony
was United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). In that case,
an aircrew member started behaving erratically while flying a mission
and other crew members asked if he had taken drugs. The court held
Article 31 warnings were not required in that case because the
questioning was to protect the safety of the aircraft and the aircrew,
not to obtain evidence for use against the accused. The same rationale
may apply in the battlefield scenario Chairman Hunter presented at the
hearing. For a comprehensive analysis of when Article 31 warnings are
required, see United States v. Cohen, 63 M.J. 45 (C.A.A.F. 2006).
Mr. Skelton. What percentage of the other detainees at GTMO were
captured under battlefield conditions? Turned over by a third party?
What specifically are the challenges with evidence given that these
were not battlefield captures by infantrymen or special forces?
Colonel Davis. The prosecution has focused on the cases that are
likely candidates for trial, so I do not have information on how all of
the detainees were captured.
The greatest challenge, regardless of whether a case involves a
classic battlefield capture by U.S. forces, is that these cases are not
the result of traditional U.S. law enforcement investigations of
ordinary crimes. Things that are routine in domestic law enforcement
investigations--evidence tags, chain of custody documents, prompt
securing of crime scenes for subsequent investigations, detailed
witness statements under oath, constitutional rights warnings, etc.--
are generally absent in these war crimes cases. Additionally, most of
the events took place halfway around the world in places where it was
and still is dangerous to canvas for witnesses and look for evidence.
The point that seems to be overlooked by many is that these cases are
war crimes prosecutions under Title 10, not domestic criminal trials
under Title 18. Looking at these cases through the Title 18 filters
that apply to trials of persons accused of crimes in our domestic
courts distorts the reality that these are unlawful enemy combatants
being brought to justice as part of the war effort, not domestic petty
criminals being held to account while afforded full constitutional
protections applicable in Article III courts.
Mr. Skelton. Your testimony on the record said that for military
commission panels most officers had master's degrees if not doctorates.
What percentage of military line officers have each? What is the
percentage of line 0-1s through 0-3s in the military have each? What is
the percentage of line 0-1s through 0-3s among line officers in total?
What are the ranks of individuals who usually serve on panels?
Colonel Davis. I do not have access to data on the education levels
of officers from all services. The Under Secretary of Defense for
Personnel and Readiness may have that information. I do have data from
the Air Force Personnel Center on Air Force officers and I would expect
the data for officers from the other services to be comparable.
As a starting point, all Air Force officers have at least an
undergraduate degree. For Air Force officers from 0-1 (Second
Lieutenant) through 0-6 (Colonel), the percentage with an advanced
degree is 51.5 percent. That includes 41.3 percent with master's
degrees and 10.2 percent with doctorate or professional degrees. As
would be expected, the percentages increase significantly as the groups
grow more senior and thus older. Air Force officers in the grades 0-1
through 0-3 constitute 57.4 percent of the officers in the 0-1 to 0-6
range, and 24.3 percent of the 0-1 to 0-3 group have an advanced degree
(18 percent with master's degrees and 6.3 percent with doctorate or
professional degrees). On the other end of the spectrum, for Air Force
0-6s, more than 99.95 percent (3,519 out of 3,521 colonels) have an
advanced degree (76.4 percent with master's degrees and 23.5 percent
with doctorate or professional degrees).
In a memorandum to the Military Department Secretaries on May 24,
2005, the General Counsel of the Department of Defense, the Honorable
Jim Haynes, defined the criteria for court member nominees as: grade of
0-5 (Lieutenant Colonel/Navy Commander) and above, a reputation for
integrity and good judgment, and a top secret security clearance. In
the ten cases referred to trial prior to the Supreme Court's Hamdan
decision, all court members selected by the convening authority were in
the grades 0-5 and 0-6 (Colonel/Navy Captain). (Information on the ten
cases, including redacted court member lists, is available at the
military commissions' web site: http://www.defenselink.mil/news/
commissions.html.) For 0-5s and 0-6s combined, based upon the Air Force
data, 98.1 percent have an advanced degree (81.2 percent with master's
degrees and 16.9 percent with doctorate or professional degrees).
A recent study of the education levels of juries in the U.S.
District Court for the District of Connecticut found that 46 percent of
jurors had completed four years of college. The authors noted that it
is generally accepted that jurors with college degrees are better able
to follow judges' instructions and remain focused on complex evidence
than jurors without college degrees. (Hillel Y. Levin & John W.
Emerson, Is There a Bias Against Education in the Jury Selection
Process?, 38 Conn. L. Rev. 325, 330 (2006)).
Mr. Skelton. Are the rules of evidence for hearsay and classified
information part of the UCMJ passed by Congress or part of the Military
Rules of Evidence in the Manual for Courts-Martial changed by Executive
Order of the President? a. In testimony you mentioned that under the
UCMJ hearsay can only come in ``by exception''? Can you describe the
``exceptions'' in the MRE? In your experience as either a prosecutor or
defense counsel in general courts-martial cases under the UCMJ, are the
exceptions difficult to establish? b. If hearsay exceptions are
difficult to establish in general courts-martial trial procedures, can
you propose an additional hearsay exception for military commissions in
general that would provide the flexibility prosecutors desire in order
to provide a fair (by international LOAC standards), but effective
trial for detainees in the war on terror (related to the Afghanistan
conflict and/or 9/11)? c. Can you propose an additional rule(s)
prosecutors desire relating to classified evidence (MRE 505, etc.) that
would provide for a far but effective trial? For instance should all
panel members (line officers) be cleared for TS/SCI evidence as well as
Special Access Programs information on sources and methods? Is it
necessary for the panel (rather than just the judge and counsel) to
know sources and methods beyond the underlying information in
classified documents (i.e., explain once again for the record why
declassification, redaction, tear line reports, write for release
reports, and summaries, all without identification of highly classified
sources and methods) would not suffice for the panel to do the ``fact
finding'' necessary for fair but effective trials?
Colonel Davis. In the UCMJ, Congress authorized the President to
prescribe rules of evidence for courts-martial (Article 36, 10 U.S.
Code Sec. 836). The rules of evidence for hearsay (800 series) and
classified information (Rule 505) are in the Military Rules of
Evidence, which the President has the authority to issue and modify.
Because the Secretary of Defense has not yet issued a Manual for
Military Commissions or the rules of evidence for the military
commissions, it is uncertain how the commission rules of evidence will
implement the hearsay rule of Sec. 949a(b)(2)(E) of the Military
Commissions Act of 2006 (MCA), or whether those rules of evidence will
track verbatim with the Military Rules of Evidence.
(a) The hearsay section of the Military Rules of Evidence (MRE) is
patterned after the same section of the Federal Rules of Evidence
(FRE). MRE 803 and 804, which are the same as FRE 803 and 804, list a
number of exceptions to the prohibition on the admissibility of
hearsay, including excited utterances, statements against interest,
statements under belief of impending death, and other commonly
recognized hearsay exceptions. MRE 807, like FRE 807, is the residual
hearsay exception, which allows a judge to admit a hearsay statement
not covered by a recognized exception in MRE 803 or 804 if it has
``equivalent circumstantial guarantees of trustworthiness.'' My
experience as both a prosecutor and defense counsel in courts-martial,
as an appellate counsel for the government, and as a staff judge
advocate to both special and general court-martial convening
authorities, is that military judges take their duties very seriously
and rigidly hold the parties to their respective burdens of persuasion.
As in the Federal courts, this results in hearsay being admitted in
some instances and excluded in others.
(b) I believe the MCA gives us the flexibility necessary to
effectively prosecute alleged terrorists in military commissions.
Section 949a(b)(2)(E) of the MCA allows a military judge to admit
hearsay that would not otherwise be admissible in a court-martial
unless the party objecting to the admission of such evidence proves it
is unreliable or lacking in probative value. Additionally,
Sec. 949a(b)(2)(F) requires a military judge to exclude evidence if the
probative value is substantially outweighed by the danger of unfair
prejudice. These two provisions, in my view, appropriately place the
burden on the party objecting to the admission of a hearsay statement
to prove why it should not go to the court members for them to weigh in
their evaluation of all the evidence.
(c) Some, but not all, court member panels may require special
clearances because of possible exposure to compartmented information.
Counsel, in conjunction with the convening authority and his or her
staff, should be able to identify cases in advance where that is
likely. I do not believe court member panels need access to all sources
and methods of obtaining information in order to fully and fairly
perform their fact-finding duties. Section 949d(f)(2) of the MCA gives
the military judge the authority to hold a closed hearing--a hearing
outside the presence of the court members, the media, the public, and,
if appropriate, the accused--to address with counsel, on the record,
how to handle classified information at trial. The military judge has
the discretion to determine how information will be presented to the
members (in whole, redacted, summary, etc.) and how members will be
instructed on their evaluation of such evidence. In the end, the
accused will see and hear all the same evidence the court members see
and hear, including classified information if some evidence is
presented in classified form; so any notion that an accused can be
convicted and not have the chance to confront all the evidence is
mistaken. Military court members are competent to take the evidence in
whatever form it is presented to them and obey the judge's instructions
concerning how they are to evaluate such evidence and reach a fair and
just determination.
Mr. Skelton. Can you provide information, classified if necessary,
on the six Algerians turned over by the Bosnians (not captured on the
battlefield) who remain at GTMO without charge?
Colonel Davis. Prior to the enactment of the Military Commissions
Act of 2006 these cases had been assessed as possible military
commissions. Additional investigative and preparatory work is necessary
before more definite prosecutorial decisions under the military
commission procedures established by and pursuant to the Military
Commissions Act of 2006 can be made in these cases.
Mr. Skelton. Who can be tried by courts-martial according to the
UCMJ, Article 2? Only U.S. military personnel? a. Do DOD and DOJ have a
Memorandum of Agreement or Understanding that U.S. service personnel
accused of war crimes will be tried under the UCMJ rather than in
Federal Courts under 18 U.S. Code?
Colonel Davis. The coverage of Article 2 includes: active duty
service members, cadets at service academies, members of the reserve
component while in federal status, retired service members, persons
serving courts-martial sentences, personnel from federal agencies (NOAA
and Public Health Service, for example) assigned to and serving with
the armed forces, prisoners of war, persons accompanying the armed
forces in the field during a time of war, and persons serving with the
armed forces outside the U.S. and its territories or outside the U.S.
but in an area over which the U.S. exercises control (subject to any
treaty or rule of international law). Note that this last category of
persons over whom a military court-martial may assert jurisdiction has
been limited by the U.S. Supreme Court.
(a) I am not aware of any memorandum, agreement, or understanding
between DOD and DOJ concerning the trial of U.S. service members for
alleged war crimes.
Mr. Skelton. Without an explicit ban on the admission of coerced
testimony, do you think the rules for treatment of captured and
detained persons by infantry soldiers, special forces, military police,
detention forces, intelligence professionals and others will be clear?
(a) How would you define ``coerced'' evidence that is acceptable and
that which is not? (b) Do you think the impulse to ``save lives'' by
gaining intelligence and operational information through ``aggressive''
interrogations not bound by the ban on coercion might cause some of the
aforementioned individuals to ``cross the line''? (c) Would this be
hard for commanders to hold their personnel responsible for such
transgressions or for prosecutors to use intelligence information
gained through such interrogations as evidence with a clear conscience?
Colonel Davis. (a) I believe that the rules for the treatment of
captured enemy combatants are clear: captured and detained personnel
will be treated humanely. I am confident that U.S. forces understand
this rule. I do not believe that U.S. armed forces personnel who
capture and detain enemy combatants condition their treatment of those
individuals on whether statements that they might make will be
admissible at a possible future trial.
(b) The polar ends of the spectrum of coerced evidence are simple
and subject to little debate: a statement is admissible if it resulted
from minimal coercion and inadmissible if it resulted from extreme
coercion. The more difficult question is where to strike the balance
between the two polar ends. My personal opinion is that Sec. 948r of
the Military Commissions Act of 2006 (MCA) establishes the appropriate
standard to strike a proper balance and achieve justice. It requires
the judge to find a statement is, based on a totality of the
circumstances, reliable and probative, and its admission into evidence
serves the ends of justice before the judge allows the statement to go
to the court members for their consideration. I believe that this
threshold standard of admissibility, coupled with the ability of the
court members to evaluate the evidence and attach such weight as they
deem appropriate, and then four layers of post-trial review, ensures a
fair trial that meets or exceeds the standards accepted in similar
international tribunals.
(c) No.
I do not believe that commanders doubt their ability to discipline
their personnel. I am confident the standard of admissibility discussed
in (b) above permits each prosecutor to go forward with a clear
conscience. I have instructed the prosecutors that they will not offer
any evidence that they question on legal, ethical, or moral grounds.
Additionally, the prohibitions against unlawful command influence found
in Sec. 949b(a)(2)(C) of the MCA provide an additional layer of
protection. No member of the prosecution team wants to secure a
conviction in such a way that casts doubt on our commitment to fairness
and justice.
Mr. Skelton. Can you provide the Committee with a copy of the
Manual for Military Commissions drafted for the original (and revised
Military Commission Orders before Hamdan)?
Colonel Davis. I have had no involvement in the creation of the
draft Manual for Military Commissions, I have never seen any parts of
it, and I do not have a copy.
Military Commission Orders are available at: http://
www.defenselink.mil/news/Aug2004/commissions--orders.html.