[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 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.

                                  
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