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



                         [H.A.S.C. No. 109-120]
 
            STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS

                               __________

                                HEARING

                               BEFORE THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                           SEPTEMBER 7, 2006

                                     
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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 RODGERS, 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:

Thursday, September 7, 2006, Standards of Military Commissions 
  and Tribunals..................................................     1

Appendix:

Thursday, September 7, 2006......................................    57
                              ----------                              

                      THURSDAY, SEPTEMBER 7, 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

Black, Maj. Gen. Scott C., Judge Advocate General, U.S. Army.....     6
Bradbury, Steven G., Acting Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice...........................     3
Dunlap, Maj. Gen. Charles J., Jr., Deputy Judge Advocate General, 
  U.S. Air Force.................................................     8
MacDonald, Rear Adm. Bruce E., Judge Advocate General, U.S. Navy.     7
Reed, Col. Ronald M., Legal Counsel to the Chairman of the Joint 
  Chiefs of Staff, U.S. Air Force................................    10
Walker, Brig. Gen. James C., Staff Judge Advocate to the 
  Commandment, U.S. Marine Corps.................................     9

                                APPENDIX

Prepared Statements:

    Black, Maj. Gen. Scott C.....................................    71
    Bradbury, Steven G...........................................    61
    Dunlap, Maj. Gen. Charles J., Jr.............................    79
    MacDonald, Rear Adm. Bruce E.................................    74
    Walker, Brig. Gen. James C...................................    84

Documents Submitted for the Record:
    [There were no Documents submitted.]

Questions and Answers Submitted for the Record:
    [There were no Questions submitted.]
            STANDARDS OF MILITARY COMMISSIONS AND TRIBUNALS

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                       Washington, DC, Thursday, September 7, 2006.
    The committee met, pursuant to call, at 10:05 a.m., in room 
2118, Rayburn House Office Building, Hon. Duncan Hunter 
(chairman of the committee) presiding.

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

    The Chairman. The committee meets today on the future of 
military commissions, and I would like to welcome the 
distinguished panel that is prepared to testify to us on that 
subject. Mr. Steven Bradbury, Acting Assistant Attorney 
General, Office of Legal Counsel of the Department of Justice; 
and Major General Scott Black, the Judge Advocate General of 
the Army. Rear Admiral Bruce MacDonald, the Judge Advocate 
General of the Navy; Major General Charles Dunlap, Jr., Deputy 
Judge Advocate General of the Air Force; Brigadier General 
James C. Walker, Staff Judge Advocate to the Commandant of the 
Marine Corps; Colonel Ronald Reed, USAF, Legal Counsel to the 
Chairman of the Joint Chiefs of Staff.
    Thank you, gentlemen, for being with us today and 
contributing to this important discussion.
    Today we hear from the Administration on its 
recommendations. We also hear from our top military lawyers and 
we want to have the advantage of their thinking on the 
Administration's recommendations.
    The war against terror has produced a new type of 
battlefield and a new type of enemy. It is necessary at this 
point for Congress to develop a military commission process 
that is going to allow us to have effective prosecution of 
enemy terrorists, and while we need to provide basic fairness 
in our prosecutions, we must also preserve the ability of our 
warfighters to operate effectively on the battlefield. 
Balancing these two requirements means that we must pay special 
attention to the rules of evidence and the procedures used in 
any military commission process. My own interest is to protect 
our troops in the battlefield from becoming involved in a legal 
quagmire, which would prevent us from effectively pursuing 
terrorists, and also to ensure that America can effectively 
protect its citizens. Our foremost consideration should be 
protecting American troops and American citizens.
    The Administration has worked with the Congress and the 
Judge Advocate Generals (TJAGs) who are with us here today. I 
look forward to working with the President, the Senate, with my 
colleagues on the committee to construct a new process which 
strikes this necessary balance between justice and battlefield 
effectiveness and provides the legal standard in the coming 
decades in the war against terror.
    I think a fair process has two guiding principles. First, 
the government must be able to present its case fully, and 
without compromising its intelligence sources or compromising 
military necessity and, second, the prosecutorial process must 
be done fairly swiftly and conclusively.
    The Administration's proposed legislation also touches two 
areas that fall outside military commissions: The applicability 
of Common Article 3 to the War Crimes Act and the applicability 
of the Detainee Treatment Act of 2005 to detainees held prior 
to the enactment of this statute. I believe we should closely 
scrutinize both of these issues, and I look forward to the 
panel's comments on those. So let us get started. We have got a 
lot of work to do.
    Let me before we go to our witnesses turn to the fine 
gentleman from Missouri, my great colleague, Mr. Skelton, for 
any remarks he would like to make.

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

    Mr. Skelton. Mr. Chairman, thank you. This is a very 
important hearing. We will listen very closely to your thoughts 
and recommendations. We do know some of them and appreciate you 
being with us. We are somewhat at a disadvantage because we 
only received the Administration's proposed budget legislation 
late yesterday afternoon, although we have talked about these 
issues for quite some time. It is critical to look at the words 
on the page and how each approaches include or are pieced 
together.
    And Mr. Bradbury, from you I would like to know why in the 
world it took so long for this proposal to get to us. We have 
been talking about it for some time. We have been waiting to 
assist the President, provide him with important tools. It is 
terribly important that we pass some. In light of the Hamdan 
decision we can't go on in limbo. We must protect our troops 
and front line. We must be as stern and yet as fair as 
possible.
    One approach would be for the war military commissions as 
they exist under the Uniform Code of Military Justice (UCMJ), 
which is mentioned in UCMJ, or is this a proposal of a new kind 
for a new court under military jurisdiction? Unlike other 
specialized courts such as the Foreign Intelligence 
Surveillance Act (FISA) court that is in existence, although 
not in use as we know, a couple of key principles to evaluate 
this is will this allow us to quickly and successfully 
prosecute terrorists? Will this system meet the requirements 
clearly laid out in by the Supreme Court in the Hamdan case? 
How closely does it adhere if we take this approach to the 
Uniform Code of Military Justice and does it rigorously 
maintain standards that protect American forces on the 
battlefield?
    Well, gentlemen, we are looking forward to your views. We 
look forward to your thoughts on how the proposed legislation 
is enshrined in the Geneva Convention, including Common Article 
3, but like I say, the most important thing is to protect our 
troops on the battlefield, to have swift justice and as only 
Americans can give fair justice.
    Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman. And Mr. Bradbury, why 
don't you tee this thing up for us and tell us about the 
Administration's proposal?

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

    Mr. Bradbury. Thank you, Mr. Chairman, Ranking Member 
Skelton and distinguished members of this committee.
    The President announced yesterday that 14 senior members of 
al Qaeda had been transferred to the U.S. Naval Base at 
Guantanamo Bay. These men include those who orchestrated the 
murders of nearly 3,000 Americans on 9/11, the attack on the 
USS Cole, and the bombings of the American embassies in Kenya 
and Tanzania. In U.S. custody these individuals provided 
intelligence invaluable in the war on terror that has prevented 
attacks on the United States and saved American lives. As the 
President stated, the time now has come for the United States 
to prosecute these and other terrorists for the atrocities of 
9/11 and their own war crimes.
    Yesterday the President sent to Congress a Military 
Commission bill that will permit us to bring these terrorists 
to justice before fair and effective tribunals. This 
legislative proposal reflects the outcome of two months of 
intensive discussions within and across the executive branch 
and between the political branches of government. We have 
consulted extensively with Members of Congress and their 
staffs. These discussions have been equally extensive, even 
more so, within the Administration and have included input from 
the military lawyers in all branches of the armed services, 
including the TJAGs who are here today. They and their people 
have been active participants in our deliberations and many of 
their comments have been incorporated into the draft now before 
Congress.
    The proposed legislation would enact a new Code of Military 
Commissions modeled on the courts-martial procedures of the 
Uniform Code of Military Justice, or the UCMJ, but adapted for 
use in the special context of military commission trials.
    These military commission procedures would provide for 
fundamentally fair trials. The accused will know the charges 
against him. He will be presumed innocent until proven guilty 
beyond a reasonable doubt. He will have a right to counsel, 
including an appointed military defense counsel, and the 
ability to retain private counsel. He will be given a 
reasonable opportunity to obtain witnesses and other evidence, 
including evidence in the possession of the government. The 
prosecution will be required to disclose exculpatory evidence, 
evidence known to it. The accused will have the right to cross-
examine witnesses who testify for the prosecution. He will have 
the right not to testify against himself. Evidence may be 
admitted only if the military judge finds that it would have 
probative value to a reasonable person, and it must be excluded 
if its probative value is substantially outweighed by the 
danger of unfair prejudice. The accused will have the right to 
at least two appeals from any conviction, including an appeal 
to an Article 3 court, and he may not be tried a second time 
for the same offense.
    The new Code of Military Commissions would differ in 
significant respects from the military commission procedures 
established by the Administration before Hamdan. The presiding 
officer would be a certified military judge with the 
traditional authority of the judge to make final rulings at 
trial on law and evidence, just as in courts-martial. The 
minimum number of commission members would be increased to five 
from three. In death cases we would require a minimum of 12 
members who would have to vote unanimously before a death 
sentence could be imposed.
    While the President's legislation tracks the UCMJ, in many 
respects it departs from court-martial procedures where 
applying them would be inappropriate or impractical. For 
instance, we do not incorporate into the legislation the UCMJ's 
Miranda type protections for U.S. military personnel. Nor do we 
incorporate the pre-charging investigation under Article 32. 
Terrorists are not entitled to these protections, which might 
frustrate interrogations vital to our national security.
    The draft legislation also provides for the introduction of 
all probative and reliable evidence, including hearsay 
evidence. Military commissions must try crimes based on 
evidence collected everywhere from the battlefields in 
Afghanistan to foreign terrorist safe houses, and therefore 
they can not apply the strict rules of evidence appropriate for 
peacetime or court-martial trials.
    The draft legislation also provides that under very limited 
circumstances classified evidence may be considered by the 
commission outside the presence of the accused. In the midst of 
the current conflict, we cannot share with captured terrorists 
the highly sensitive intelligence relevant to some military 
commission prosecutions. We believe it critical to ensure that 
military commissions have the discretion to admit classified 
evidence not shared with the accused in extraordinary 
circumstances.
    The circumstances for exclusion will be detailed and 
narrowly defined, and the military judge will be required to 
find that exclusion is necessary and consistent with the 
accused's rights to a fair trial. These will not be trials in 
absentia. These procedures, properly administered by the 
military judge, would strike the appropriate balance between 
safeguarding our Nation's secrets and ensuring a fair trial of 
the accused.
    The legislation submitted by the President, Mr. Chairman, 
also addresses, as you stated, the Supreme Court's ruling that 
Common Article 3 applies to our armed conflict with al Qaeda. 
The United States has never before applied Common Article 3 to 
a conflict with international terrorists. Common Article 3 
contains certain vague prohibitions, including a prohibition 
on, quote, outrages upon human dignity, in particular 
humiliating and degrading treatment. These terms are 
susceptible of uncertain and unpredictable application, and the 
Supreme Court has stated that courts may look to international 
tribunals in interpreting these terms. Therefore, without 
clarification the meaning of Common Article 3, which is the 
standard that now applies to the conduct of U.S. personnel in 
the war on terror, would be informed by the evolving 
interpretations of tribunals and governments outside the United 
States. This will create unacceptable uncertainty for U.S. 
personnel, both military and intelligence personnel, who handle 
detainees in the war on terror.
    Let me be clear, as the President stated yesterday, the 
United States does not torture and the President has not and 
will not authorize torture. The President also supports and the 
United States is committed to complying with the McCain 
Amendment to the Detainee Treatment Act, which prohibits cruel, 
inhumane, and degrading treatment as defined in U.S. law by 
reference to our own constitutional standards.
    Because the standards governing the treatment of detainees 
by United States personnel should be certain and defined 
clearly by U.S. law, the President's legislation would define 
our obligations under Common Article 3 by reference to the U.S. 
constitutional standards already approved by Congress in the 
McCain Amendment. Congress rightly assumed that the McCain 
Amendment provided an acceptable and appropriate baseline to 
government of the treatment of detainees on the war on terror 
and that standard fully satisfies United States obligations 
under international law.
    The Administration also believes that we owe it to those 
called upon to handle detainees in the war on terror to ensure 
that legislation addressing the Hamdan decision brings clarity 
and certainty to the War Crimes Act. To that end, the proposed 
legislation sets forth a definite and clear list of offenses 
serious enough to be considered war crimes punishable as the 
most serious breaches of Common Article 3, including clear and 
serious outrages upon human dignity such as rape, sexual 
assault and conducting human experiments.
    Mr. Chairman, I look forward to discussing these subjects 
with the committee this morning, and I thank you and the 
committee.
    [The prepared statement of Mr. Bradbury can be found in the 
Appendix on page 61.]
    The Chairman. Mr. Bradbury, thank you for a very concise 
opening statement, and gentlemen, the reason we have asked your 
attendance this morning is to reflect on and give us your 
evaluation of the Administration's proposals. So I hope you 
were listening to what the high points or the important points 
especially with respect to classified treatment of classified 
evidence and hearsay evidence. And if you would give us your 
thoughts on the Administration's proposal that would instruct 
us greatly.
    So, and I just might comment. I was kind of surprised. We 
went over--we have done some hearings on this area and when we 
did the side by side and we looked at Nuremburg and we looked 
at the other tribunals, it occurred to me that the--that first 
I think a number of the members, myself included, were 
surprised that hearsay evidence is allowed in varying degrees 
in these tribunals, but it also appeared to me that at 
Nuremburg when we were trying the Nazi war criminals, we had 
the advantage of thousands of witnesses in some cases who had 
participated in the capitulated government and were available 
to testify against Nazi leadership.
    The war on terror in this case continues and many of the 
statements that were linked, much of the evidence I would think 
instinctively because I haven't seen the case against people 
like Khalid Sheikh Mohammed, who is thought by our intelligence 
community to be the mastermind behind the strike on America on 
9/11, that much of the evidence that will be forthcoming in the 
near term with these immediate cases that are going to be set 
up for prosecution and over the years will be evidence that is 
in fact hearsay evidence. It would also occur to me that a 
great deal of it is going to be classified evidence. So dealing 
with those two areas, I think in a way that will allow us to 
have an effective prosecution is going to be a major challenge 
for us.
    So just having said that, why don't we walk down the line 
here and gentlemen, we are very interested in your comments and 
your evaluation of the Administration's proposal.
    General Black.

STATEMENT OF MAJ. GEN. SCOTT C. BLACK, JUDGE ADVOCATE GENERAL, 
                           U.S. ARMY

    General Black. Thank you, Mr. Chairman, Ranking Member 
Skelton, and members of the committee. I would like to thank 
you for the opportunity to appear before you today and for the 
committee's timely and thoughtful consideration of these 
significant issues.
    I would also like to express my heartfelt gratitude to the 
members and staff of this committee for your continuing hard 
work on behalf of the Army's soldiers, civilians and family 
members. We really do appreciate what you do each and every 
day.
    At the outset, I will tell you that military commissions 
are a necessary forum for the trial of enemy combatants 
captured in the Global War on Terror (GWOT). They are legally 
viable and pragmatically vital. They allow us to maintain the 
maximum flexibility in coping with these combatants we find on 
the current battlefield. Military commissions are well grounded 
in history and the Uniform Code of Military Justice and provide 
an indispensable tool to ensure justice under the rule of law.
    The Hamdan decision has reinforced our need to ensure 
military commissions are reflective of American values such as 
due process and the rule of law. Our task has been to balance 
the utility of the military commissions with these values that 
are foundational to our democratic society. We have been 
working within the government to assemble a product that will 
do this, that will not only protect this great Nation from 
those who are committed to destroy it but that will 
simultaneously uphold the principles that distinguish this 
Nation from those who attack it.
    We are prepared to work together with the Congress and look 
forward to being participants in the continuing developmental 
process. And with that, Mr. Chairman, I look forward to your 
questions.
    [The prepared statement of General Black can be found in 
the Appendix on page 71.]
    The Chairman. Thank you, General Black. For the record all 
statements, without objection, will be taken, all written 
statements will be taken into the record and feel free to 
summarize your statements. Let me just ask our panel we 
understand that you are ready to work with the Congress and you 
feel this is a--you have opinions on whether this is a good 
product or not a good product. We would like to hear that, but 
I would also like to hear your thoughts especially on these 
area of classified evidence, hearsay evidence, evidence 
obtained by coercion, some of these challenges that we are 
going to have to meet as we put this construct together. So if 
you could comment on that, that would be greatly appreciated.
    So Admiral MacDonald, thank you for being with us today.

   STATEMENT OF REAR ADM. BRUCE E. MACDONALD, JUDGE ADVOCATE 
                       GENERAL, U.S. NAVY

    Admiral MacDonald. Good morning, Mr. Chairman, Ranking 
Member Skelton, members of the Armed Services Committee. Thank 
you for the opportunity to testify today on the subject of 
military commissions.
    The Chairman. Before you start, let me ask my colleagues, 
we are going to have other--if other members who are not 
members of the committee would like to sit in on either side of 
the aisle, it is my feeling we should let them sit in and after 
our questions are finished, we should let them ask questions. 
Without objection, let us let that occur. So ordered.
    Go ahead, Admiral.
    Admiral MacDonald. Congress' establishment of a legal 
permanent framework for military commissions, a Code of 
Military Commissions, would be a welcome addition to military 
jurisprudence. My view is that existing court-martial rules are 
not practical for the prosecution of unlawful enemy combatants 
now or in future conflicts.
    Yet our military justice model, the Uniform Code of 
Military Justice, can provide an appropriate starting point for 
the drafting of commission legislation. We have been working 
with others in the executive branch to formulate precisely such 
a bill. I recommend that legislation establish the jurisdiction 
of military commissions, set baseline standards of structure, 
procedure and evidence consistent with U.S. law and the law of 
war and proscribe all substantive offenses.
    The legislation should further authorize the President to 
promulgate supplemental rules of practice similar to the manual 
for court-martial or in this case a manual for military 
commissions. The legislation proposed by the President 
generally accomplishes those goals.
    I and other military lawyers have worked with many others 
in the Administration to incorporate these ideas into the draft 
legislation recently submitted before you. It reflects many of 
our comments, although there are some issues, particularly the 
use of classified evidence, where I would stand by the approach 
to that taken by the Uniform Code of Military Justice. It is 
Congress, however, that will make the final decision on these 
issues. I am confident in so doing that we can achieve the 
necessary and appropriate balance between affording an accused 
the judicial guarantees recognized as indispensable by 
civilized people on the one hand and/or valid national security 
interests on the other.
    Mr. Chairman, you asked that we comment on some specifics 
that you talked about with respect to hearsay. It would be my 
opinion that the hearsay proposal that the Administration has 
forwarded is adequate as it currently stands in the draft bill 
that you have before you.
    With respect to coerced statements, it would be my position 
that I would not--I would recommend that the committee look at 
not allowing coerced statements, that the statements that are 
obtained under torture are excluded under the current 
commission rules. However, statements obtained through coercion 
if they meet a reliability and probative test are admitted. I 
would recommend that the committee look to the Detainee 
Treatment Act and the cruel, inhumane and degrading treatment 
standard and apply that standard as well to statements that may 
or may not be coerced, and I would leave that determination to 
the military judge in charge of the commission to balance those 
competing interests.
    Thank you, Mr. Chairman.
    [The prepared statement of Admiral MacDonald can be found 
in the Appendix on page 74.]
    The Chairman. Okay. Thank you very much, Admiral. General 
Dunlap.

  STATEMENT OF MAJ. GEN. CHARLES J. DUNLAP, JR., DEPUTY JUDGE 
                ADVOCATE GENERAL, U.S. AIR FORCE

    General Dunlap. Thank you, Mr. Chairman, Ranking Member 
Skelton, and distinguished members of the committee.
    Major General Rives, the Judge Advocate General, is 
traveling overseas. Accordingly, I appreciate the opportunity 
to appear before you today as this committee carefully 
considers the authority of the United States to prosecute 
suspected terrorists, consistent with the Supreme Court's 
decision in Hamdan v. Rumsfeld, and Mr. Chairman, with your 
permission I am going to summarize my statement.
    The Chairman. Go right ahead.
    General Dunlap. It will be in the record.
    The Uniform Code of Military Justice and the Manual for 
Courts-Martial provided a superior starting point for 
development for a revised commission process and there will of 
course, as Admiral MacDonald indicated, necessarily be 
adjustments and changes from the manual and the Uniform Code. 
However, many of these processes can be readily adapted to meet 
the needs of military commissions and at the same time meet the 
requirements of Common Article 3 of the Geneva Conventions. The 
proposal submitted to Congress by the President reflects an 
attempt to adapt the UCMJ to the military commissions process. 
I personally support many, if not most, of these provisions.
    A revised approach to military commissions is not only the 
right thing to do, but it also serves a pragmatic military 
purpose in helping us in the Global War on Terror.
    Success in this war requires cooperation of many nations 
around the world, and addressing the Supreme Court's concerns 
about military commissions will reaffirm our position on the 
moral and legal high ground. A process fully compliant with 
Common Article 3 will enhance our standing internationally and 
empower our allies to embrace the legal reasoning and 
architecture behind the prosecution of military commission 
cases. Doing so is plainly in our warfighting interests. I look 
forward to discussing these issues with the committee.
    Mr. Chairman, with respect to your specific questions I 
concur with Admiral MacDonald in his view of the legislation.
    With respect to coerced statements, I would say that every 
interrogation is coercive to some degree and what we are 
looking at here is unlawful coercion, and the concepts that 
Admiral MacDonald indicated I think are the right ones to do. I 
would leave it up to the military judge to determine in that 
context whether or not the interests of justice are served by 
admitting the statement.
    [The prepared statement of General Dunlap can be found in 
the Appendix on page 79.]
    The Chairman. Okay. Thank you, General. General Walker, 
thank you for being with us today. The floor is yours.

 STATEMENT OF BRIG. GEN. JAMES C. WALKER, STAFF JUDGE ADVOCATE 
             TO THE COMMANDMENT, U.S. MARINE CORPS

    General Walker. Thank you, Chairman Hunter. Members of the 
committee, good morning. I want to thank you for the 
opportunity to be here today and for your committee's 
continuing interest in the military commission process.
    Since the Supreme Court decision in Hamdan v. Rumsfeld back 
in June there has been a lot of discussion and debate on the 
future course of the commissions and of course yesterday the 
President announced a new legislative proposal. All the 
proposed solutions must achieve that delicate balance between 
individual due process and our national security interest. We 
must maintain our Nation's ability to deal with terrorists and 
unlawful enemy combatants, but at the same time we must also 
provide those judicial guarantees which are recognized as 
indispensable by civilized people.
    While we seek that balance we also must remember the 
concept of reciprocity. What we do and how we treat these 
individuals can in the future have a direct impact on our 
servicemen and women overseas. I have reviewed the 
administrative proposal legislation submitted yesterday and I 
think it does provide a solid foundation to achieve these 
balances.
    I personally remain concerned about any process which would 
permit the introduction of evidence against an accused outside 
of his presence. I simply believe the right to see the evidence 
against you and to be present when evidence is presented are 
fundamental to a full and fair trial and are also part of those 
judicial guarantees which are recognized as indispensable by 
civilized people.
    This may require in particular cases, I understand, that 
the government would have to balance and then have to balance 
the need for prosecution on a particular charge against the 
need to protect certain classified information.
    I concur with the comments of Admiral MacDonald and General 
Dunlap as to hearsay evidence. I think that the proposals on 
hearsay evidence do provide adequate safeguards. They conform 
with the accepted legal standards but also recognize the unique 
character of the conflict we are in now and the availability of 
evidence and the availability of witnesses worldwide.
    Like my counterparts, I look forward to working with 
Congress to create a system that will simultaneously help 
defend our Nation from those who seek to destroy it but also 
uphold the values which have set us apart for over 230 years. 
Thank you, sir.
    [The prepared statement of General Walker can be found in 
the Appendix on page 84.]
     The Chairman. Thank you very much. Colonel Reed.

STATEMENT OF COL. RONALD M. REED, LEGAL COUNSEL TO THE CHAIRMAN 
          OF THE JOINT CHIEFS OF STAFF, U.S. AIR FORCE

    Colonel Reed. Thank you for the opportunity to come here 
this morning and speak to you about this extremely critical 
issue. I do not have a written statement to provide. I was 
notified late that I would be attending this hearing.
    The Chairman. That may be good, Colonel Reed. Go right 
ahead.
    Colonel Reed. I am happy to answer any questions you have 
today. With respect to my opinion on the draft of legislation 
that has been offered by the Administration and my discussions 
with General Pace, the Chairman of the Joint Chiefs, I am 
comfortable that the balance that is established in the 
legislation meets the requirements of fundamental fairness that 
you talked about at the beginning and also at the same time 
allows us to operate effectively on the battlefield. We feel 
that the language in the legislation, the protections that are 
articulated in the legislation, particularly with respect to 
the issues you identified, hearsay, coercion and access to 
classified information, provide the appropriate balance as well 
as providing that stopgap safeguard of a military judge making 
decisions based on the rules presented.
    So I am happy to answer questions that you have today. 
Thank you.
    The Chairman. Thank you, Colonel Reed. Gentlemen, let us 
get right to work and talk about practical aspects of this 
proposal.
    If you have a defendant and the key information; that is, 
the evidence that would convict him or her, is classified 
evidence, we have a procedure under UCMJ where you have 
attorneys, an attorney, a gentlemen or a lady wearing a uniform 
with a clearance who can in camera, the attorney for the 
accused confronts that evidence, cross-examines with respect to 
that evidence and treats that evidence. You have an opportunity 
at least through counsel to confront the classified evidence 
that is utilized against you. If you have a defendant, an 
alleged terrorist who fires his government attorney and hires a 
civilian attorney and the evidence that would convict that 
terrorist is classified and if you allowed the people or the 
process, the sources and methods, if you will, to be identified 
and to have that get out it would mean that people would die 
and that valuable information would be lost. And so you can't 
compromise that classified evidence by giving it to the 
defendant. Nor can you--nor can you compromise it by giving it 
to his attorney who does not have security clearances and 
perhaps has no interest in keeping that evidence secret.
    What do you do? Do you--does the court--can the court 
appoint for purposes of confronting that classified evidence 
only a court appointed JAG lawyer with the necessary 
clearances? Do you drop that evidence and in doing so dismiss 
or cause a dismissal of the case? What happens? What do you 
think, Mr. Bradbury?
    Mr. Bradbury. Mr. Chairman, one way to handle that is not 
to let the accused fire his military defense counsel, the 
appointed defense counsel. One way to handle it is to require 
that all of these accused in these military commissions will 
have an appointed military defense counsel who will have the 
necessary clearances and will be able to get access to any 
evidence that is proposed to be used against the accused.
    The Chairman. You have a provision like that in the 
Administration proposal where you cannot because you rarely see 
a case where you are not allowed to fire your counsel?
    Mr. Bradbury. Well, we don't have a provision that 
expressly satisfies that but we have a provision that makes it 
clear that each accused will have an appointed military defense 
counsel, and it is envisioned that that is an essential part of 
these procedures.
    The Chairman. But it also allows for defendants to have 
their own counsel and I think you can imagine that some of 
these high profile people, some of the people who are alleged 
to have participated in the attack on the United States at 9/11 
will have plenty of money available and will have civilian 
counsel available and will be in a position at one point to 
walk in and tell the judge that they want to get rid of their 
court appointed military counsel with the necessary clearances. 
What then?
    Mr. Bradbury. Well, we would envision that you--it would 
not be appropriate and is not a necessary requirement that you 
allow these accused to represent themselves in trials to turn 
in----
    The Chairman. I am not talking about representing 
yourselves. I am talking about substituting out their military 
counsel for their paid and perhaps very well paid civilian 
counsel who do not have clearances and with whom you can't 
entrust highly classified information. What do you do?
    Mr. Bradbury. Mr. Chairman, that is why we would require 
that every accused get an appointed military defense counsel. 
If he hires a private counsel he has a right to do that. If he 
hires a private counsel, we would provide that the military 
counsel would be the associate counsel to the hired counsel. 
But in the circumstances you described, it is precisely because 
of circumstances like that where it is essential for these 
procedures to work in an orderly and efficient fashion and in a 
fair fashion that there be a counsel appointed by the military 
that is cleared in and has the ability to treat all of that 
evidence and handle these matters, and it just has to be that 
way in my view.
    In addition, I would quickly point out in addition to that, 
in the proposal we have put forward there are many procedural 
hurdles, requirements, and limitations that would have to be 
met before any classified evidence would be considered by the 
military commission outside the presence of the accused. Lots 
of procedural hurdles and findings the military judge would 
need to make. Alternatives would need to be explored such as 
the use of summaries or substitutes, et cetera, and in all 
cases there would be at least one military counsel or private 
counsel that would get access to that information. So it is 
limited to extraordinary circumstances, and I think that is the 
best way to approach it.
    The Chairman. If we placed in the legislation a provision 
that said that at all times the accused must have a defense 
counsel with sufficient security clearances to participate in 
any proceeding, especially with respect to this classified 
evidence, including ex parte or an in camera presentation with 
respect to classified information, would that be--would that 
give any value added to this proposal?
    Mr. Bradbury. That would be acceptable and may be a good 
idea, yes.
    The Chairman. You have laid out how the Administration 
proposes to deal with this classified information. Let us walk 
down the line here.
    General Black, what do you think?
    General Black. Yes, sir. You have hit on the real key issue 
here, the balance between protecting our national interests and 
our security and skill providing a full and just trial for 
these unlawful combatants. As Mr. Bradbury said, the proposed 
legislation does indeed contain a great number of safeguards in 
this process, many of which mirror what we have in Military 
Rule of Evidence 505 that you alluded to earlier. And I commend 
the Department of Justice and all of the people that have 
worked on this in terms of getting this as far as we have. We 
really have strengthened the procedures and we can be quite 
proud of that.
    I remain concerned about a couple of things, though, and I 
would add a little bit to this package with respect to the 
introduction of classified evidence.
    The Chairman. Go right ahead.
    General Black. I am concerned, one, that the package does 
not contain a provision that would prohibit the admission of 
evidence outside of the presence of the accused when that 
evidence is the sole evidence admitted to establish a material 
fact. If you follow. If it is the only piece of evidence that 
is necessary to convict, then I remain concerned about 
excluding the accused.
    The Chairman. Now let me ask you on this point. If you 
have--let us take a hypothetical situation--a person hands a 
piece of prohibited information or secret information in 
furtherance of a terrorist plot over the fence to a fellow 
terrorist at a--let us say at a military base, an American 
agent who is undisclosed sees that. He is a trusted agent. He 
knows the people. He sees the hand-off and yet the last thing 
you want to do is to reveal that agent's identity. According to 
what you have just said--and that is the only piece of evidence 
that you have that would convict this particular person, yet it 
seems to be highly reliable and the person who sees it is a 
member of the Armed Forces and he knows the parties who make 
the hand-off. But according to what you have just said, you 
would drop the case against that alleged terrorist on the basis 
that you don't want to--that you don't want to prevent him from 
confronting his accuser who in this case can't be confronted 
because he is an agent. Is that what you are saying?
    General Black. No, sir. I am saying you would drop that 
piece of evidence.
    The Chairman. But I want to pin you down here, General. 
That is the only piece of evidence that you have. You know, 
some of these acts of complicity in terrorist operations or 
plots are very small pieces. The guy that drives the car, the 
guy that delivers the document, and you don't have in many 
cases other broad evidence. And yet that obviously is very 
probative. If in fact you see that person is seen by an 
American agent handing off a document which furthers a plot to 
kill Americans, that is obviously very probative. That is 
enough to convict him and yet if you are saying that if that is 
the only piece you have, you have to let him walk. Is that 
right?
    General Black. If you get to the end of that trail, you do. 
You are skipping the safeguard that we already have put in 
place and we have a number of mechanisms that have been drawn 
by 505 summarization of the evidence, alternative forms of 
testimony or alternative forms of evidence that comes in to 
provide the same kind of information so that the case can go 
forward. I think if you get to that trail and you have gone 
through all of those things and the military judge has 
determined that it is still probative, I think then you have to 
exclude the evidence if the accused is not allowed to see it.
    The Chairman. Please understand, in the hypothetical I am 
giving you there isn't additional evidence and if you can--if 
you say a summary of the evidence, summary of the evidence does 
not amount to face-to-face confrontation by a defendant or his 
attorney. So I know I am asking the tough questions, the 
problem is the tough questions are the ones that are going to 
arise when we put this system in place. You are saying that if 
you had that one piece of probative evidence itself based on an 
agent's statements whose identity we can't disclose that and 
you would drop that case rather than allow an in camera 
examination by a cleared court appointed military counsel; is 
that what you are saying?
    General Black. I believe the accused should see that 
evidence. In the example you provided, I believe the accused 
should see that. I would add one additional protection. I would 
add a jury instruction. I think the members of the commission 
with evidence that the accused has not been allowed to see, 
assured we get that far, I believe that the members of the 
commission should be advised that the accused has not seen that 
evidence, has not had an opportunity to confront that evidence 
and the members of the commission should be advised to accord 
appropriate weight to that evidence.
    The Chairman. I understand that. Now that is assuming that 
we have a rule that does allow for a conviction without the 
person being able to see the evidence.
    General Black. Roger, Sir.
    The Chairman. But your position is if that is the evidence 
that convicts that person it is a Khalid Sheikh Mohammed or 
anybody else should be allowed to personally confront that 
person--maybe it is an American agent--and without that 
confrontation should be--if that is the only probative evidence 
then the case should be dropped.
    General Black. If it is the sole evidence to prove the 
material fact.
    The Chairman. Fair enough. That is your position. Admiral, 
what do you think?
    Admiral MacDonald. Yes, sir. I agree with General Black. I 
believe that is required under Common Article 3 as one of the 
judicial guarantees recognized as indispensable by all 
civilized nations. I think that is so important in this context 
to get that balance right.
    The Chairman. Okay. But let me offer you the caveat, 
though. What the Administration apparently has offered and is 
the idea that you would have, while Khalid Sheikh Mohammed 
might not be able to see the identity of that agent and cross-
examine him, his attorney, a court appointed attorney, a judge 
appointed attorney who is appointed for that purpose of cross-
examining the nondisclosable information or nondisclosable 
persons would do that, would be allowed to do that cross-
examination, do that confrontation and examination. You are 
saying even with that safeguard unless Khalid Sheikh Mohammed 
himself got to see the agent then you would not move forward.
    Admiral MacDonald. Yes, sir.
    The Chairman. What is your answer?
    Admiral MacDonald. I would not let it go forward. And part 
of the reason is the--as the commission rules are currently 
constituted, the defense counsel cannot talk to their client 
about the classified information either. So I think that they 
need, the defense needs to be able to talk to their client 
about the evidence that has been presented in your hypothetical 
if it is the only piece of evidence. What essentially we have 
set up is a commission where the accused is going to be 
excluded from the entire commission process. If that is the 
only evidence that the government is going to present, the 
accused won't be in the commission to hear any of the evidence 
that is introduced against them.
    The Chairman. Well, now are you conclusively sure that the 
counsel could not communicate in any way to the accused about 
the accusation. There may be aspects, there may be aspects of 
the accusations of the evidence which are not classified.
    Admiral MacDonald. He could communicate about those 
unclassified but in your hypothetical----
    The Chairman. He couldn't disclose the identity?
    Admiral MacDonald. He could not disclose anything that the 
military judge determined was classified and necessary to come 
in. And if it was the only piece of evidence I would have 
serious concerns about preceding in a military commission under 
those circumstances.
    I would also add, sir, that even under the commission rules 
as currently constituted, there is a provision at the end under 
this balance that is done under this 505 like rule that talks 
about the military judge making a determination that the 
accused received a full and fair hearing. I can't imagine any 
military judge believing that an accused has had a full and 
fair hearing if all of the government's evidence that was 
introduced was all classified and the accused was not able to 
see any of it.
    The Chairman. Not the accused but his attorney?
    Admiral MacDonald. No. I think the accused, sir. I think 
that is what Hamdan, Common Article 3, at least four Justices 
came out and said that they would view--that they view that as 
a judicial guarantee and a fifth, Justice Kennedy, said he 
would view with concern an attempt to exclude an accused from 
hearing the evidence against him.
    The Chairman. Okay. Okay. Fair enough. And incidentally on 
that one point under the UCMJ is that the--isn't that the--and 
we have walked through this process several times about how 
classified evidence is used in trials with respect to our own 
uniform personnel. Is that the rule that is in place under the 
UCMJ? In other words, if you are represented by Colonel Jones, 
who is a JAG officer, and you have maybe that same scenario 
where you don't want to disclose something or it is classified 
evidence, do we have the rule that if that is the probative 
evidence in the case and the defendant is not personally 
allowed to cross-examine the agents or to see the agent and see 
what he is saying, then the case is dropped? Is that the rule 
under UCMJ?
    Admiral MacDonald. Yes, sir. There are a number of 
provisions under 505--that is one remedy--is the government is 
put to the task of making a decision if the judge has said 
look, the defense needs to see this evidence, it is material to 
their defense of their case, then the judge would make a ruling 
that would say government, it comes in in all of its classified 
form and then the government at that point would step back and 
say do we really want to proceed forward. So the government 
would--could drop that particular specification under a charge. 
That would be a possible remedy.
    The Chairman. Let me ask you one further question there. My 
understanding is that in these ex parte or in camera 
proceedings you have JAG officers who have necessary clearances 
to see the classified evidence or a civilian officer who has 
the necessary clearances. If you are telling me that the 
defendant in all cases gets to see it anyway, even if he has no 
clearance or the case is going to be dropped if it is the only 
piece of evidence, why then is it necessary to give that type--
to require that type of a clearance for his attorney? You see 
what I am saying? If a corporal, general is going to get to see 
the evidence and he doesn't have the clearance, why is it a 
requisite that Colonel Smith, who is his JAG officer, have that 
clearance?
    Admiral MacDonald. But he is potentially--the defendant is 
potentially not going to see it. In that ex parte in camera 
proceeding under 505, the military judge listens to the 
government counsel, the government counsel produces the 
evidence. If it is classified evidence, the government has to 
demonstrate that it remains classified and the government 
counsel then talks to the judge about this is how I intend to 
use this. The judge in that case will look at trial to prepare 
a redacted, unclassified version that could be used and could 
be delivered to the defendant under 505.
    The Chairman. Okay, fair enough. Thank you. And General, 
well, let me first advise the committee. We have got the rule 
coming up on the livestock bill, and I understand it is just 
one vote. So why don't we go ahead and keep moving? We have got 
a lot of work to do and we will go right on down the line here 
and let me ask, one of my colleagues can whip over and get that 
vote. We will keep moving here.
    Dr. Snyder. Mr. Chairman, I am sorry. I understand your 
wanting to keep it moving, but, I mean, those--I think most of 
us will go vote and we are going to miss minutes of this 
discussion. Will you at least give us five minutes?
    The Chairman. Let us have a show of hands. How many folks 
want to keep going? How many folks? Put your hand up. How many 
folks would like to take a break and come back in 10 minutes or 
so? Okay, we will take a break, and General Dunlap, we will 
come back and we will resume with you.
    On to the livestock vote.
    Okay, folks, we will fire back up.
    And, General Dunlap, you have--you have listened to the 
preceding comments and know the issue. What is your take here?
    General Dunlap. Thank you, Mr. Chairman. A couple points I 
wanted to add to this conversation: one, this is a great 
demonstration of democracy in action that you have invited this 
kind of debate. I very much appreciate it. Thank you, sir.
    Just the proposal by the Administration does require 
civilian counsel to be eligible for security clearances. And 
when we talk about the procedures for the admission of 
evidence, the 505 procedure under the military rules of 
evidence that we use at courts-martial is a process by which 
the military judge examines the classified material, sees if it 
can be summarized, redacted in some way, and the accused is not 
present during that process.
    The issue that I think is--once you get, for example, a 
redacted or summarized version of the testimony--and in the 
military commission process you don't have the confrontation 
issues that you would necessarily have in a court-martial 
because hearsay is generally allowed. What goes to the members, 
the finders of fact, must be presented to the accused, in my 
judgment.
    In other words, I don't believe that we ought to have a 
trial where, for example, the entire evidence is not presented, 
that is, presented to the finders of fact the accuser never 
sees, so--but that is distinct from the preliminary process 
where the classified is evaluated and an effort is made to 
summarize it or redact it in a way so that sources or methods 
aren't compromised, and that would be facilitated under the 
commission process because of the liberal rules on hearsay.
    The Chairman. Yeah. It would seem to me the problem is 
going to occur when it is cases of identifying people and 
allowing the accused to see who the agent is, for example, or 
the unidentified person who may be of great value to our--to 
our intelligence apparatus.
    General Dunlap. And--right, and a particular case, it may 
not be necessary to have the accused see that person because it 
may not be necessary for that person to be presented to the 
finders of fact. In other words, you might have summarized 
testimony or summarized redacted material down to an 
unclassified level.
    The Chairman. But certainly you know that he is going to 
demand, especially if he knows that the failure to produce the 
identity and allow him to identify that person would result in 
a dismissal.
    General Dunlap. Well, even under the----
    The Chairman. You understand that, General. There will be 
an aggressive demand.
    General Dunlap. Absolutely, sir. We will see litigation on 
every aspect of this no matter what kind of legislation we 
have. Under the Military Rules of Evidence, we have what we 
call ``pseudonym testimony.'' For example, individuals can 
testify under a different name. The trier of fact will know 
that that person is testifying under a different name, but that 
protects the individual, provides another level of protection 
and the triers of fact are so instructed.
    As I say, in the military commission process, there is an 
additional flexibility because of the relaxed rules with 
hearsay, but my bottom line, my personal opinion, sir, is that 
we cannot have a process whereby the finder of fact, not the 
judge, is deciding, but the finder of fact gets evidence that 
the accused never sees and never has the opportunity to defend 
against because----
    The Chairman. Even though his lawyer sees it?
    General Dunlap. Even though his lawyer sees it.
    The Chairman. Okay. Okay. Fair enough, General.
    General Walker.
    General Walker. Sir, I concur with my colleagues that if we 
get to a point where the sole evidence against an accused is 
classified, he must be able to see that evidence; that is just 
essentially one of those elements of a full and fair trial.
    I am not aware of any situation in the world where there is 
a system of jurisprudence that is recognized by civilized 
people where an individual can be tried without--and convicted 
without seeing the evidence against him. And I don't think that 
the United States needs to become the first in that scenario.
    I think though, sir----
    The Chairman. Well, what if the held-back evidence, though, 
is not the testimony that he did such and such or that he said 
such and such or he moved a bomb from a certain place to 
another place, but simply the identity of the person who saw 
that even though his lawyer with a security clearance gets to 
cross-examine that person and sees the identity--in other 
words, he would get the evidence surrounding the accusation, 
all of the peripheral facts would be known to the person 
himself, to Khalid Sheikh Mohammed, for example, but the 
identity of the American agent, the person who conveys that, 
that would be known only by his defense counsel. You see that 
as not acceptable? Because that is what we--we have got to get 
down to tough cases here.
    General Walker. Yes, sir. The key is not whether his 
attorney saw it. The key is whether the trier of fact saw that 
evidence.
    The Chairman. No. Certainly the trier of fact sees it, but 
I am talking about his team. If he doesn't get to know the name 
of the person who testified, who gave this evidence, but you 
get to know the nature of the evidence, what it was--somebody 
saw him carry the bomb, do some other thing--it is your 
position that even though his attorney gets to cross-examine 
that person in camera with this classification, unless he 
himself gets to know the identity of the agent, then you can't 
move forward if that is the sole evidence?
    General Walker. If that is the sole evidence, yes, sir.
    The Chairman. Okay.
    General Walker. Because the key is the meaningful 
participation of the accused in his trial, not the 
participation of his attorney.
    One additional point though, Mr. Chairman, is that in a 
couple of discussions already, we have said if we arrive at 
that situation, then prosecution must be dropped. In fact, I 
don't think that is entirely accurate. The prosecution could, 
in fact, be deferred.
    Most of the scenarios where we are discussing this 
classified information would come down to scenarios where the 
classification deals with means, methods or sources. Often the 
passage of time makes a difference in whether those remain 
classified; and particularly with the unlawful combatants that 
we are dealing with here, deferral of prosecution is an option. 
It doesn't necessarily mean that if the government was unable 
to prosecute based on divulging the classified information that 
the individual would walk free.
    The Chairman. Okay. Very good, General. Thank you.
    Colonel Reed.
    Colonel Reed. Sir, implicit in what General Walker just 
said is the recognition that the unlawful combatants that we 
are currently detaining are, in fact, enemy combatants against 
the United States and are being detained based upon that. I 
think that is an important factor to recognize, that they are 
being detained, and those being detained at Guantanamo are 
being detained because they are combatants of the United 
States, being kept off the battlefield.
    With respect to your question on the issue of classified 
information and with respect to the points that the panel 
members have made so far and the question whether or not you 
could ever have a situation where evidence is admitted against 
an accused where the accused is not seeing that evidence, in 
fact, there are circumstances where that happens. There are 
currently circumstances in the Uniform Code of Military Justice 
where, for example, an accused who has been arraigned 
voluntarily absents themselves from the proceeding, or if they 
become disruptive, they can be pulled from the courtroom and 
not have access to any of the evidence that is being presented 
against them.
    Now, that does not go directly--that is a voluntary act on 
their part; it does not go directly to the issue that you have 
asked, but it does present a point where there may be 
circumstances where the accused is not going to be present when 
evidence is being offered to the trier of fact. So then you 
have to look at the current circumstances we find ourselves in 
today with respect to the enemy that we are fighting, how they 
operate, the need to protect the methods and sources that 
General Walker talked about and determine, as you create a 
system that is fundamentally fair, whether or not you can then 
limit their access to that classified information. That is 
another one of those kinds of examples where an accused may not 
be present when certain evidence is being offered.
    The Chairman. Very good. Thank you, Colonel.
    Mr. Bradbury. Mr. Chairman, may I just add a couple more 
cents?
    The Chairman. Absolutely.
    Mr. Bradbury. Thank you.
    I would implore Congress not to prejudge these issues 
through black-and-white prohibitions in statute. I think it 
should be left up to the military judges on a case-by-case 
basis to protect the fairness of trials, and anything that we 
are talking about in this legislation would be subject to a 
finding that the accused has received a full and fair trial.
    And many of the procedures we are proposing are very 
similar to those in rule 505 of the Military Rules of Evidence 
that would require the use of substitutes or summaries in lieu 
of classified evidence wherever possible, and the accused would 
always get to the extent possible an unclassified summary of 
the evidence that was presented.
    But as Colonel Reed just said, the notion of presence at 
trial I don't think is--it is clearly not an absolute in 
international law. If, for example, the safety of witnesses 
require it, the accused may be excluded from the trial. And so 
the principle is not different from the protection of witnesses 
versus the protection of sensitive sources, methods and 
intelligence information in an ongoing conflict.
    For example, in the Tadic prosecution before the 
International Criminal Tribunal for the former Yugoslavia, the 
tribunal decided that a witness--anonymous witness' testimony 
could be taken. So as long as it was facially credible, they 
allowed witnesses to testify whose identities were concealed 
from the accused, and even from the accused counsel, and whose 
voices were obscured and were even screened off.
    So that is a form of evidence being taken outside the 
presence of the accused, and there the court, the tribunal, is 
the fact finder, and it is also the court that made judgment 
that the testimony was facially credible and the court knew the 
identity of the witnesses involved, but the accused did not. 
And that was determined to be consistent with international 
standards for a fair trial.
    So principle--it is a different situation, but the 
principle is really the same. You are protecting the safety of 
intelligence information in the war versus protecting the 
safety of individual witnesses.
    And then just the last thing I would say, Mr. Chairman, is 
the idea that there be some blanket prohibition on the use of 
classified evidence outside the presence of the accused if it 
is the sole evidence on the material fact. Again, I wouldn't 
prejudge that, try to do that by statute. I think the accused 
will always claim that every fact is a material fact, and these 
arguments will be made, and as I think General Dunlap said, 
they will be litigated. I think I would leave it up to the 
military judges on a case-by-case basis to decide, so that the 
fairness of the trial is preserved and that in particular 
circumstances, particular evidence is appropriate and in others 
it is not. And I would leave it to them and I wouldn't try to 
prejudge it.
    Thank you.
    The Chairman. Okay. Thank you, Mr. Bradbury.
    The gentleman from Missouri, Mr. Skelton.
    Mr. Skelton. Mr. Bradbury, I am somewhat intrigued by your 
comments to leave it to the judge and for us not to write basic 
rules by which trials are to be conducted. I am an old country 
lawyer, and we pretty much follow the statutes back in Missouri 
and I think it would be a good idea for us on major things, 
major items, to have a statute thereon.
    Mr. Bradbury, let me ask you: Senator John McCain was 
quoted in The New York Sun as saying, ``I think it is important 
that we stand by 200 years of legal precedence concerning 
classified information because the defendant should have a 
right to know what evidence is being used.''
    Do you agree or disagree with Senator McCain?
    Mr. Bradbury. Well, I think the----
    Mr. Skelton. No. Just agree. Do you agree or disagree? We 
will get along much quicker.
    Mr. Bradbury. I stand by the proposal in the 
Administration's legislation which would allow for the 
possibility----
    Mr. Skelton. You disagree with that statement?
    Mr. Bradbury. If the statement means----
    Mr. Skelton. I will read it again. Do you want me to read 
it again?
    ``I think it is important that we stand by 200 years of 
legal precedence concerning classified information because the 
defendant should have a right to know what evidence is being 
used.''
    Do you agree or disagree?
    Mr. Bradbury. If the--I am sorry, Congressman. If that 
statement means that there would never be a circumstance where 
classified evidence could be used at trial and not--and the 
classified evidence not made available to the accused, I would 
disagree. But I would point out that we would provide summaries 
of the evidence that is unclassified to the accused; and then 
in that sense, the accused would have an understanding of the 
evidence that is being used against him, but would not see the 
classified aspects of the evidence. His attorney would.
    So his attorney would have a full opportunity to see it, to 
make an argument based on it. So consistent with the full and 
fair trial, up to the military judge; and I don't think that is 
inconsistent with traditional or, as I say, with international 
standards.
    Mr. Skelton. Do you agree or disagree with Senator Lindsey 
Graham quoted from The New York Times, ``I do not believe it is 
necessary to have trials where the accused cannot see the 
evidence against them''?
    Mr. Bradbury. In these limited circumstances, we do think 
it is necessary to have this tool available for these 
prosecutions.
    Mr. Skelton. You are disagreeing with that statement?
    Mr. Bradbury. Again, if that statement means there would 
never be such circumstances----
    Mr. Skelton. It means what the English language says. Do 
you agree or disagree with it? This isn't--this isn't----
    Mr. Bradbury. I disagree that we should close the door to 
this possibility. This is going to be an important aspect of 
our ability to prosecute in certain of these important cases, 
not all; and not--and we are not talking about a common part of 
it. We are talking about in extraordinary circumstances.
    We have to leave that door open, and I would just implore 
the Congress not to close that door, and if that statement 
means the door should be closed to the use of that kind of 
evidence, then I think that is unacceptable.
    The President has said, yes, as it was suggested, we could 
wait until the end of the conflict to prosecute or we could 
drop the prosecutions. I think from the President's 
perspective, both of those options at this point are 
unacceptable.
    Mr. Skelton. Under your proposal, who would be the persons 
covered by your language in this bill?
    Mr. Bradbury. The persons who would be subject to the 
military commission trial would be unlawful enemy combatants. 
There is a definition in the bill that would include those who 
fight on behalf of terrorist organizations like al Qaeda, and 
it would be limited to unlawful enemy combatants who commit 
violations of the law of war. So it would not apply to 
prisoners of war (POWs) or protected persons under the Geneva 
Conventions, and the legislation would expressly stipulate that 
those protected persons would be tried even for their war 
crimes by courts-martial or other tribunals and not by these 
military commissions.
    Mr. Skelton. How about those that violate human rights?
    Mr. Bradbury. Well, some of the war crimes are also crimes 
against humanity, but what we are talking about here is enemy 
combatants who have been engaged in supporting hostilities 
against the United States. So fundamentally we are talking 
about war crimes and enemy combatants. This is a law of war 
paradigm.
    Mr. Skelton. May I ask you what I posed in my opening 
statement? I know you have been working on this for quite some 
time, but we just received this yesterday. Would you explain to 
the committee why we didn't have it at least several days 
before?
    Mr. Bradbury. Well, I can certainly say we have worked very 
hard, as I believe you know, Congressman, for two months on 
this project, coming off the court's decision, and much of that 
work involved consultations with the armed services and 
military lawyers and the Department of Defense; and much, much 
work was done, many changes were made in the legislation as it 
evolved.
    I think a lot of improvements were made. I think these 
gentlemen and their staffs provided terrific input that 
improved the bill significantly. And in addition to that 
process, there was extensive consultation with various Members 
of Congress and their staffs.
    I walked through proposals, draft language with members and 
with staff and took suggestions, and the product continued to 
evolve right up until days before we submitted it. So I think 
we have benefited from that continued work.
    Mr. Skelton. Did you contact any person on our side of the 
aisle regarding this?
    Mr. Bradbury. There were consultations, yes.
    Mr. Skelton. Now, you did not put this within the structure 
of the Uniform Code of Military Justice; is that correct?
    Mr. Bradbury. It actually is modeled closely on----
    Mr. Skelton. No, no, no, no. I am not talking about 
modeled. I am talking about within the structure of the Uniform 
Code of Military Justice.
    Mr. Bradbury. We adopted the structure of the Uniform Code 
of Military Justice for this Code of Military Commissions. So 
it does reflect almost the entire structure of the Uniform Code 
of Military Justice for courts-martial with certain key 
differences, as we have pointed out. But it would be--you are 
right, Congressman, it would be a separate code and a separate 
procedure, because the President feels very strongly that these 
proceedings and these trials for enemy combatants, for unlawful 
enemy combatants should be kept separate from the court-martial 
proceedings that we use for our own troops.
    Mr. Skelton. I won't be short, but let me ask you just a 
couple more questions.
    The former detainees that have just been turned over to the 
Department of Defense, what is that--15; what is the number?
    Mr. Bradbury. Fourteen.
    Mr. Skelton. Fourteen. The intention is that they be tried 
under whatever law Congress passes; is that correct?
    Mr. Bradbury. I think the intention is that all of their 
cases will be reviewed for trial--for possible prosecution 
under the military commission procedures that come out of this 
process. So we will seek to prosecute them. There is no 
guarantee that prosecutions will move forward.
    They remain enemy combatants, and we will hold them either 
way, but the hope and the intent is that as quickly as possible 
after legislation is in place, we will review their cases and 
move them forward for possible prosecution.
    Mr. Skelton. Does your proposal include the protections 
under the Geneva Common Article 3?
    Mr. Bradbury. Yes, it does, Congressman. We think the 
procedures for these military commissions would fully satisfy 
the requirements for the Common Article 3.
    Mr. Skelton. Does it state that?
    Mr. Bradbury. Yes.
    Mr. Skelton. Thank you.
    The Chairman. Thank the gentleman.
    The gentleman from New Jersey, Mr. Saxton.
    Mr. Saxton. Thank you, Mr. Chairman.
    Mr. Bradbury, as I read the Administration proposal, it 
seems fairly clear that the proposal would target not only 
members of the organization that we call al Qaeda, but it would 
target other individuals from organizations who are in the 
business of carrying out asymmetrical warfare that we generally 
refer to as terrorism.
    Let me ask you a hypothetical question.
    In the case of Hezbollah, which is clearly a state-
sponsored organization and an organization that clearly targets 
civilians, in the event that the U.S. captures a member of 
Hezbollah--incidentally, an organization that has killed more 
Americans than any organization other than al Qaeda--under what 
circumstances, I guess is the question, could that member of 
Hezbollah be tried under the military commission that you have 
proposed?
    Mr. Bradbury. Congressman, I believe it would only be if it 
were determined that Hezbollah is engaged in hostilities 
against the United States. Again, this is an armed conflict 
law, war paradigm, and it is clear that we are at war with al 
Qaeda and its affiliates. So that would be--that is a 
prerequisite here, that you are in a--essentially, a state of 
armed conflict; hostilities are going on, or have gone on, and 
the organization in question is engaged in or supporting those 
hostilities against the United States.
    Mr. Saxton. I would suspect that if a member of Hezbollah 
were to kill a United States citizen, that would constitute a 
reason that the tribunal could be used to prosecute that 
person?
    Mr. Bradbury. Well, I am going to hesitate to give a 
blanket answer on that. I think that, again, there would need 
to be a state of hostilities or have been a state of 
hostilities between the organization and the United States, and 
the act of one person does not make a state of hostilities.
    Mr. Saxton. Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman.
    The gentleman from South Carolina, Mr. Spratt.
    Mr. Spratt. Mr. Bradbury, from your testimony, I gather 
that you don't believe that the detainees currently held can be 
adequately tried under existing law, including the Uniform Code 
of Military Justice.
    Mr. Bradbury. Well, Congressman, that actually is not a 
judgment for me to make. But I have talked to some prosecutors 
who would likely be involved, and I think the strong view is 
that we need flexible procedures, we need the type of 
procedures that are reflected in this proposed legislation for 
military commissions, and that some of the limitations under 
the Uniform Code of Military Justice for courts-martial are 
incompatible with that.
    For example, speedy trial rights--some of these people have 
been held for a long time already. For example, Miranda 
warnings that would give the accused a right to counsel from 
the moment he is suspected of having committed a crime, would 
be incompatible.
    Mr. Spratt. Case law rather than statutory law, isn't it?
    Mr. Bradbury. It is reflected in--it flows from article 1 
of the UCMJ, and it is reflected in the manual for courts-
martial.
    Mr. Spratt. Let me ask you this. The Justice Department 
issued a statement of facts on June 23, I believe, 2006, 
stating that it had prosecuted--brought to justice 261 
terrorists or defendants engaged in terrorist-related activity. 
Are you familiar with that fact sheet?
    Mr. Bradbury. Not very familiar with it, but I am generally 
familiar with the issue.
    Of course, the Department has a Counterterrorism Section in 
its Criminal Division, and other sections of the Criminal 
Division that are very, very focused on----
    Mr. Spratt. My point is that these 261 were apparently 
tried or the cases were processed under the existing rules of 
evidence and criminal procedure, applicable in the U.S. 
district courts; and by the same token under the UCMJ, we have 
cases pending now, battlefield cases where witnesses and 
evidence will have to be taken from the exigencies of the 
battlefield and brought back to some court.
    We have got these cases being tried now--have been tried in 
the past successfully; 261 were prosecuted. How did you do it 
with respect to these defendants?
    Mr. Bradbury. Well, Congressman, obviously we will use 
every tool at our disposal to fight this war, and sometimes 
that means criminal prosecutions, many of those prosecutions 
are for--they are not for law-war violations, but for 
traditional crimes. Some of them are crimes like immigration 
violations, fraud, other things short of terrorism, because we 
will use every tool we can to bring the terrorists off the 
streets and if we can prosecute them for crimes, we will.
    Mr. Spratt. Has the Justice Department overstated the 
character of these particular defendants? Have you called 
people ``terrorists'' who really were----
    Mr. Bradbury. No, I don't think so.
    I think that there are a lot of people who, we have reason 
to know, are involved in plotting terrorist activity. What you 
want to do is not wait until the terrorist act is complete 
necessarily in every case and prosecute them for a complete 
terrorism crime; but rather, get them, prosecute them, put them 
in prison for any crime that you can prosecute them for if that 
means you are actually preventing a terrorist action from 
ultimately occurring.
    Mr. Spratt. Let me ask you a bit different question because 
my time is limited.
    If you had this additional chapter to the UCMJ, and dealing 
with and substantiating military commissions, I suppose you 
will have to create the procedural rules that accompanied this 
tribunal, in addition, will you restate substantive law? And if 
you do restate, reformulate, substantive law, is that an ex 
post facto problem here?
    Mr. Bradbury. Well, in the proposal that the President sent 
up, all of the substantive offenses that would be triable by 
military commission would be specified by Congress in the 
legislation, and the Secretary of Defense would not have 
discretion to define new substantive offenses.
    All of these offenses, we think, are offenses that have 
preexisted under international law, laws and customs of war, 
and the evolving notion of what is a war crime or properly 
triable by military commission. We don't think there would be 
an ex post facto issue with any of them, and that is including 
a crime of conspiracy, which we would specify to clarify that 
that is a preexisting offense under the laws of war.
    But to the first part of your question, absolutely, we 
would anticipate; and it would specify in the legislation that 
the Department of Defense would have to promulgate rules, 
including rules of evidence and other rules of procedure, for 
these trials and would have to submit those to this committee 
and the Senate Armed Services Committee. Within a certain 
number of days after the legislation is passed, you would have 
an opportunity to review those.
    We would anticipate that these rules would be, in effect, a 
manual of military commissions, much as was described and just 
as exists for court-martial proceedings. There is a manual of 
courts-martial, and in fact in a lot of respects it will look 
quite similar, I think, with certain key differences in some of 
these areas that we have talked about today.
    The Chairman. Thank the gentleman.
    The gentleman from Texas, Mr. Conaway.
    Mr. Conaway. Thank you, Mr. Chairman. I appreciate your 
holding this hearing today.
    A quick look at the bill that is in front of us, section or 
subchapter 6 talks about post-trial procedures. Can you explain 
to us the difference between the appellate procedures that you 
contemplate under this bill versus the UCMJ; and also talk to 
us--it makes reference to a court of military commission 
review, and also the court of appeals here in the District of 
Columbia. Can you form all that in to how it is going to work 
once it is in place?
    Mr. Bradbury. Yes. What is envisioned in this legislation 
is an appellate process that in some respects is quite similar 
to that for courts-martial and but in other respects is 
different. It would create a court of military commission 
review, which would be parallel to a court of criminal appeals 
that hears appeals from courts-martial.
    One key difference is, the court of military commission 
review would only hear and decide issues of law on appeal, just 
like a traditional appellate court that we are all used to in 
the article 3 context, whereas for courts-martial of our own 
troops, the court of criminal appeals in the court-martial 
process can review questions of fact as well as law, can 
essentially interpose a different view on questions of fact.
    We don't think that is--that is not necessary, that--that 
is a procedural protection for our own troops that actually 
goes beyond what is provided in article 3 courts for regular 
criminal defendants. We don't think it is appropriate to 
provide that level and not necessary to provide that level of 
review and procedural protection here, but there would be a 
court of military commission review that could decide issues of 
law and overturn decisions of the military commission trial on 
questions of law.
    In addition, because the government would not have a right 
to appeal a judgment of acquittal from the military 
commissions, the government, just as in traditional criminal 
prosecutions in article 3 courts, has to have a right of 
interlocutory appeal to this court of military commission 
review where, for example, the military judge has made a 
decision to exclude key evidence of the government or has 
decided a dispositive issue against the government. At that 
point, the government needs to have an interlocutory appeal up 
to this court of military commission review.
    Then, from the court of military commission review, which 
is in the Department of Defense, we would provide an appeal as 
a right in all cases, from all convictions for the accused, to 
the U.S. Court of Appeals for the District of Columbia 
Circuit--the D.C. Circuit, pursuant to the scope or the 
standards of review that are in the Detainee Treatment Act that 
Congress already decided on and debated back in December; and 
that is, the court of appeals can review whether the military 
commission applied the correct standards and procedures and 
whether the trial proceeding and the conviction were consistent 
with the laws and Constitution of the United States.
    And the Detainee Treatment Act (DTA) currently limits the 
appeal as a right to sentences that are longer than 10 years, 
or sentences of death; and if it is a sentence shorter than 10 
years, it is a discretionary petition for review under the DTA. 
We would change that in this legislation and make it an appeal 
as a right from all convictions to the D.C. Circuit; and then, 
finally, of course, the accused could petition the Supreme 
Court for certiorari review from that.
    So it is similar in some respects to the military 
commission review process, but differs because of the Detainee 
Treatment Act. We think it is appropriate not to reopen that 
debate, but to leave that review and those standards as set in 
the DTA.
    Mr. Conaway. Thank the gentleman.
    Mr. Chairman, thank you for the----
    The Chairman. I thank the gentleman. The gentleman from 
Texas, Mr. Ortiz.
    Mr. Ortiz. Thank you, Mr. Chairman.
    You know, we are going through very serious times, critical 
times; and we see where some of the Coalition members have 
either withdrawn, quit in Afghanistan, in Iraq. Have we 
consulted with our allies, those that have signed up in an 
agreement to what the Geneva Conventions do? And is this the 
right time to be doing this when we are in the middle of two 
wars?
    Any of you that would like to answer that question.
    Mr. Bradbury. Well, I will jump in first.
    There has been extensive consultation with our allies and 
the Coalition members by the Department of State, the Secretary 
of State, the President about all aspects of the joint effort 
in this war on terror. I actually think that the State 
Department would probably tell you that our allies, by and 
large, will welcome a move toward military commission 
prosecutions for these enemy combatants.
    I think it is probably fair to say that our allies have 
favored that kind of treatment of enemy combatants rather than 
a situation where there is less definition and certainty about 
what is going to happen down the road. I think they will also 
favor generally the idea of a more elaborate and 
congressionally determined set of rules for the military 
commission process.
    So I think there has been a lot of consultation on this, 
and I think this will be whatever Congress decides to do here; 
and once we get this process up and running, will probably be 
viewed as a significant move forward by the international 
community, I think.
    Mr. Ortiz. Would anybody else like to respond?
    Admiral MacDonald. Congressman I would just say that you 
asked the question about, is this the right thing to do, 
considering we have--we are currently engaged in a war in 
Afghanistan and Iraq.
    I think I would agree with the President's comment 
yesterday: It is imperative that we move forward on military 
commissions. This is going to be a long war against terrorism, 
and we need--we need a set of procedures and rules to handle 
the unlawful enemy combatants that we are taking off the 
battlefield.
    Colonel Reed. Congressman, I would also add that this has 
been shared and discussed with the combatant commanders, 
specifically the geographic combatant commanders; and I cannot 
speak to the discussions that they may have with the various 
representative countries within the AOR, but generally 
speaking, the combatant commanders uniformly follow on the line 
that Admiral MacDonald just articulated.
    Mr. Ortiz. One of the reasons that I ask is because the 
Geneva Convention has been there for many, many years; and all 
of a sudden, you know, we have to do something like this. Maybe 
it is needed.
    What a lot of people don't understand is the perception out 
there, and I just want to be sure that what we do is the right 
thing to protect our soldiers as well.
    Admiral MacDonald. Congressman, I think it is the right 
thing to do. I think one of the things that nobody anticipated 
was the Hamdan court's declaration that Common Article 3 
applies in this conflict. I think nobody believed that these 
types of detainees, unlawful enemy combatants, would be 
afforded Common Article 3 rights.
    We now have the Hamdan decision, the Supreme Court has 
spoken, and we need--we need to take action now to comply with 
the Supreme Court's decision; and passing legislation on 
military commissions will help us do that.
    General Dunlap. I agree with that, sir. We need to go 
forward with the commission process. We need to do it right and 
we need to have the right processes. But I do believe that it 
will facilitate waging the Global War on Terror to be able to 
deal with the detainees that we have through the military 
commission process.
    Mr. Ortiz. Thank you. I don't have any further questions.
    Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman. The gentleman from 
Minnesota, Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman. Thank you, gentlemen, 
for being here. Fairly confusing for those of us who aren't 
lawyers, don't watch enough TV to even pretend that we are.
    But let me just--I will go to you, Mr. Bradbury, first, 
just very quickly, make sure that I understand. If this 
language were to pass exactly as it is, the government could 
choose when and if to bring somebody before a commission; is 
that correct?
    Mr. Bradbury. Yes.
    Mr. Kline. So, in theory, someone could not be brought 
before a commission for years----
    Mr. Bradbury. Correct.
    Mr. Kline [continuing]. If the government chose?
    Okay. Fine. If someone is brought before the commission and 
is found guilty, we have this appeals process that you just 
explained to Mr. Conaway. If they are found not guilty, they 
are immediately released; is that correct?
    Mr. Bradbury. Not necessarily. They remain enemy 
combatants, and under the laws of war, we can hold them while 
the hostilities are going on.
    Now, that is not for punishment purposes. So there is a 
very big difference, I think, certainly morally and in the 
sight of the victims of their war crimes between simply holding 
them as combatants under laws of war and punishing them.
    Punishment, of course, can include up to and including the 
penalty of death for depending on the seriousness of their 
crimes. We are not in a position today to punish them for what 
they have done. We are simply holding them to protect the 
country, but we have a right to continue to do that.
    Mr. Kline. Even after they are found not guilty.
    That sort of brings me to the point that the other 
gentlemen were talking about earlier. If you bring them before 
a commission, and in the process you determine, the government 
determines that there is some evidence that they cannot use, 
they can stop the process; is that correct?
    Mr. Bradbury. Well, that--that certainly--if that is the 
case, if there is evidence that is foreclosed from the 
government's case that is critical or essential to the 
government's prosecution, the government would be forced to 
drop the prosecution as an alternative or await the end of 
hostilities, whenever that might be.
    Mr. Kline. So the unlawful combatant would just continue to 
be detained and the trial process would stop, at least for that 
time under those circumstances?
    Mr. Bradbury. Yes. But the victim's interest in seeing 
retribution done and justice done would be thwarted.
    Mr. Kline. Exactly.
    The Chairman. Would the gentleman yield on that?
    Mr. Kline. I would be happy to yield.
    The Chairman. I thank the gentleman, because I think in his 
own talented way, he has gotten to--talked, reflected back on 
this problem that we talked about earlier, this challenge.
    What you are saying, Mr. Bradbury, is that if the 
government has--if its major piece of evidence that would be 
necessary for a conviction would require the disclosure of an 
agent whom we can't afford to disclose, at that point the 
government would have a choice. The choice would be to try to 
proceed without the evidence.
    But if it is apparent that it is not going to work, that 
that is a central piece, they would--rather than disclose the 
agent, they could simply continue to keep the person as a 
combatant, and the agent's testimony that, in fact, he saw the 
alleged terrorist undertaking actions which were indicative of 
his combatant status, that certainly could be considered in 
terms of simply holding him.
    Now there is obviously going to be--at that point you are 
going to have habeas filings, you are going to have all kinds 
of attempts by the defense counsel to--I would think, at that 
point, to effect a release.
    But if your answer to Mr. Kline's statement is, as I heard 
it, you could simply keep them warehoused, where they can't go 
back to the battlefield even though you can't proceed with the 
prosecution, is that accurate?
    Mr. Bradbury. That is true, but we would--we would ask that 
Congress keep the door open for the possibility that that 
prosecution could move forward under strict limitations and in 
order to guarantee fairness, because, I think, as the President 
said yesterday, he views it as unacceptable that we would 
simply have to warehouse them and hold them when we want to 
prosecute them. And in those cases where they have committed 
serious war crimes and we want to prosecute them, he thinks it 
is time to move forward, and then we have procedures that would 
enable us to do that.
    Mr. Kline. Thank you.
    I was going to reclaim my time, but I see it just went 
away. I had some trial language.
    The Chairman. You go right ahead.
    Mr. Kline. Let me just run this sort of trial language that 
we have been looking at here--I have been looking at for the 
last several minutes.
    Going back to the issue of classified--we are really 
talking about classified material here. If you put language in 
that said, quote, ``The admission of evidence that has not been 
provided to the accused that constitutes the sole evidence of a 
material fact in issue does not by itself deprive the accused 
of a full and fair trial.''
    That is--you know, that is why I am not a lawyer. I have to 
read this. But could I just whip down the line and get your 
comments, whether that language would be acceptable or not 
acceptable?
    Mr. Bradbury. Well, I am sorry, Congressman. Would that be 
a statement in the legislation from Congress to that effect?
    Mr. Kline. Yes. Insert it in the legislation.
    Mr. Bradbury. Or would that be a finding that the military 
judge----
    Mr. Kline. Insert in the legislation.
    Mr. Bradbury. Well, again, I guess I would say that I would 
discourage black-and-white rules being put in by a statute as 
to admissibility questions or questions like that. I would 
think that the military judge, under the circumstances in a 
particular case with a particular piece of evidence, may 
conclude that it is consistent with a full and fair trial for 
that to be the sole evidence of a particular fact.
    Now, the accused is always going to claim that every fact 
is material fact when it comes to that. At the same time, in a 
given case, the military judge may determine that it is not 
consistent with a full and fair trial under all the 
circumstances here for that to be the sole evidence of that 
particular fact. And that should be the military judge's 
judgment, based on the circumstances, based on the evidence, 
based on everything available to him; and it shouldn't be 
prejudged by Congress in statute. That is basically the message 
that I am suggesting.
    Mr. Kline. Okay. Thank you.
    I see that the light is now bright red, so Mr. Chairman, 
thank you. I yield back.
    The Chairman. Thank the gentleman.
    The gentleman from Mississippi, Mr. Taylor.
    Mr. Taylor. Thank you, Mr. Chairman. I am going to yield to 
the gentleman from Tennessee, Mr. Cooper.
    Mr. Cooper. Mr. Bradbury, the last time you testified 
before this committee, I asked you about your quote that the 
President is always correct. And then you testified to this 
committee that you had been joking when you said that. I trust 
you are not joking today.
    Mr. Bradbury. I am not trying to be humorous. I think I 
learned my lesson that last time.
    Mr. Cooper. What we and the American people are seeing 
today is one civilian Justice Department official, four JAG 
generals and a JAG colonel, and my constituents back home are 
more likely to believe the four JAG generals and the JAG 
colonel. In fact, trust in our uniform military is something 
that I think we have not seen enough of from this 
Administration, and all of the witnesses wearing a uniform have 
expressed misgivings, concerns about the legislation. I wish 
you had consulted them more in drafting this.
    Today, in The Wall Street Journal, one of your predecessors 
at the Justice Department, John Yoo, is quoted as saying that 
basically the bill you are offering Congress today is no 
different from what you have been doing before. And how are the 
Supreme Court justices going to react to that, having 
overturned your procedures for the last 4 or 5 years, and here 
is the man who wrote those procedures saying, hey, what you are 
offering us is more of the same?
    Mr. Bradbury. I haven't seen that quote, but I find that an 
extraordinary statement, really, because this 85-page----
    Mr. Cooper. Let me read it to you. If you haven't seen the 
quote, let me read it to you.
    ``it does not look like the procedures for these 
commissions differ in any significant way from the rules 
already in place before. The only difference is that the 
President is seeking Congress' explicit support.'' so in terms 
of the substantive law, Mr. Yoo is saying, no change. But let 
me get to some particular points here.
    As our chairman began this hearing, our foremost goal 
should be to protect America and to protect the American 
people. I would like to ask you, what, if anything, in this 
legislation protects an American citizen who is accused of one 
of these crimes? Because the way I read the law, it is all 
about alien enemy combatants.
    We have had American citizens detained for a period of over 
three years without charges. So I would like to ask you, what 
is the legal limit for holding an American citizen without 
charges? Is it one year? Is it two years? Is it three years?
    Mr. Bradbury. Well, two things. Number one, no American 
citizen would be subject to these procedures. None of these 
military commission procedures could be used with an American 
citizen, and that is clearly provided for in the law.
    Mr. Cooper. So this law is doing nothing to protect the 
rights of an American who is being held without charges for a 
period of several years, as has been done by this government?
    Mr. Bradbury. Any American--consistent with this statute, 
any American citizen who is tried for war crimes or any other 
crimes would get the full protections of the Article 3 court in 
traditional criminal proceedings.
    An American citizen or an alien, it doesn't matter who, 
engaged in armed conflict against the United States and is 
properly classified as an enemy combatant, may be held under 
the laws of war as an enemy combatant. That is not to punish 
that person, that is not for crimes committed; that is because 
of their involvement in hostilities against the United States. 
And the Supreme Court in the Hamdan case affirmed that general 
right of the government to hold enemy combatants, even 
including U.S. citizens.
    But as you say, very, very few cases such as that.
    Mr. Cooper. How long should an American citizen be held 
without charges?
    Mr. Bradbury. Well, any enemy combatant under the laws of 
war can be held during the pendency of hostilities.
    As you have seen recently----
    Mr. Cooper. Without charges, even if they are American 
citizens?
    Mr. Bradbury. As you have seen recently with the case of 
Mr. Padilla, he was being held as an enemy combatant and--had 
been designated as an enemy combatant by the President and was 
held, and then was transferred over to the custody of the 
Department of Justice and charges were brought. And he is down 
in Florida.
    Mr. Cooper. So three years is okay, being held without 
charges?
    Mr. Bradbury. There isn't a hard and fast rule under laws 
of war. As you know, we have held some enemy combatants at 
Guantanamo Bay.
    Mr. Cooper. I am talking about American citizens. So three 
years is okay?
    Mr. Bradbury. It depends on the circumstances and we are 
talking about----
    Mr. Cooper. That is what the government has done.
    Mr. Bradbury. What the government has done----
    Mr. Cooper. Three years is okay?
    Mr. Bradbury. The law of war says you can hold an enemy 
combatant for the duration of the hostilities. That is a right 
that every country has, and the Supreme Court affirmed the 
ability of the United States to do that.
    Again, there have been extremely few cases such as you 
described.
    Mr. Cooper. Let me ask about the disclosure by the 
President of the extraordinary rendition program. If any other 
government official had done that, that would have been a 
security breach, right, without his permission?
    Mr. Bradbury. Well, of course the President has the 
authority under the Constitution to protect classified sources 
and methods and to make decisions about what should be 
classified and what shouldn't. And also the Director of 
National Intelligence can declassify information.
    So the President has the ability to make decisions about 
disclosures of information when it is in the national interest 
of the United States that others who are not classifying 
authorities may not have.
    Mr. Cooper. And his decision had nothing to do with the 
proximity of the upcoming election?
    Mr. Bradbury. I think he explained the timing of his 
decision in his remarks yesterday.
    Mr. Cooper. Let me ask you about the President's signing a 
statement. When he signed the McCain anti-torture language into 
law, didn't the President reserve to himself the authority to 
interpret that language as he alone saw fit under his powers as 
commander in chief and as a unitary executive?
    Mr. Bradbury. Well, it is--one of the things I do is 
provide legal advice to the executive branch, and it is 
inherent in executive authority if you are going to carry out a 
law and execute a law, you will have to interpret what it 
means.
    Mr. Cooper. If it is inherent, why did he have to state it?
    Mr. Bradbury. He didn't really have to state it.
    Mr. Cooper. So it was unnecessary verbiage?
    Mr. Bradbury. I think that I am not going to say it is 
unnecessary, but it is not necessary for the President to 
provide a signing statement to legislation. We actually think 
it is helpful to Congress. It is part of the dynamic of a 
dialogue between the branches.
    It is also helpful to--in many cases, to the executive 
branch when the President specifies how a particular piece of 
legislation is going to be interpreted or whether it raises 
certain issues that the executive branch needs to know about 
when it is carrying out the law.
    Mr. Cooper. Final question with the indulgence of the 
chair. The term co-belligerent in your legislation, I haven't 
seen before. It doesn't seem like a very flattering term for 
our allies or our Coalition partners.
    Why did you use a term like that, because normally the term 
belligerent is not a compliment.
    Mr. Bradbury. Well, it is actually a term of art that the 
gentleman to my left can probably explain better than I, but it 
is a term of art in the law of war and it really means another 
nation that is fighting in that war on your side. And, you 
know, we may have allies; they may not in all cases and with 
respect to a particular conflict be engaged in the conflict on 
our side, but may still be our allies. They are not technically 
co-belligerent, so we wanted to use that----
    Mr. Cooper. How about ``Coalition partner,'' something 
friendlier sounding like that? You couldn't say that?
    Mr. Bradbury. Well, we just used a term that is consistent 
with the law of war, and it would be recognizable in that 
sense.
    Mr. Cooper. I thank the chair for his indulgence.
    The Chairman. Mr. Simmons.
    Mr. Simmons. I thank you, Mr. Chairman.
    And thank you, gentlemen, for your testimony. I had the 
opportunity a year or so ago to go down to Guantanamo Bay and 
be briefed on the methods and procedures and processes for 
holding detainees and for conducting questioning or 
interrogation. And what I was told at the time was that--and I 
should say by way of background, I have had some experience 
during my service in Vietnam with military methods of detention 
and questioning, as well as those of the Central Intelligence 
Agency, but what I was told at the time was, we are confronted 
with a new kind of war, with a new kind of rules or a lack of 
rules, new types of combatants that don't wear uniforms, they 
don't play by the rules. They--in fact, they flout the rules.
    And so the detention and treatment of these folks does not 
fall primarily within what we might call the civil court system 
nor does it fall within the military system, and what we really 
need is a new kind of law for a new kind of war. It seems to me 
that what we are confronted with here today is just that, a new 
kind of law for a new kind of war.
    Now, some years ago when I served as a staff director of 
the Senate Intelligence Committee, we oversaw the application 
of the Foreign Intelligence Surveillance Court under the 
Foreign Intelligence Surveillance Act, which was, in fact, a 
new kind of court for the situation that we faced back in that 
Cold War environment.
    A colleague of mine, a Coast Guard attorney has written 
extensively on this subject, Commander Glen Sulmasy and has 
called for a new kind of court, for a new kind of judgment, 
namely a national security court, a hybrid between what we have 
had in the past.
    Are any of you familiar with this proposal? Would any of 
you have any comments on it, or do any of you feel what is 
being proposed today does reflect that hybrid that reflects 
this new kind of war, that requires a new kind of law to apply 
justice? And I would open it to any of the members.
    General Black. Sir, I am not familiar with the proposal 
that you have offered up, but I would suggest that your 
comments about the proposed legislation being--kind of fitting 
into that hybrid mode are very accurate. I think it does indeed 
do that. And I share or concur generally in the way ahead with 
respect to this legislative package.
    Mr. Simmons. And have any of you had the opportunity to 
discuss this hybrid, or this new approach, with civilian 
attorneys, prosecutors, defense attorneys, civil and criminal 
lawyers, trial attorneys and others? And if so, what kind of 
feedback are we getting? Or is this really the first shot out 
of the box for this issue?
    Admiral MacDonald. Sir, this is really the first shot out 
of the box. The proposal is pretty new, and it has gone through 
a number of iterations as we have worked with Justice, 
Department since probably the latter part of July, working on 
this proposal pretty closely with Justice Department on these 
rules. So I think it was premature to have discussed that with 
any of our civilian counterparts.
    It would be interesting, I think, now that this is out and 
public to have that dialogue.
    Mr. Simmons. And what would you consider to be the 
appropriate time frame?
    Again, we have been in this situation, in this business, 
for a period now of several years, 9/11 will have its fifth 
anniversary next week. So it has been about five years.
    I think that there is a sense on both sides of the aisle 
that we need to move forward expeditiously with this, that the 
current situation requires it, that this so-called ``war on 
terror''--I would call it a war where terror is being used--is 
not going to end tomorrow or the next day. We are going to be 
with this problem for a long time.
    How long do you anticipate it should take before we can put 
together a system of tribunals, commissions or national 
security courts that address this problem?
    General Dunlap. Sir, I would say that I do think it is 
imperative to move forward with a process to establish military 
commissions, and I agree while there is much new, it does build 
on the UCMJ. It builds on the manual for courts-martial, it 
builds on the history for military commissions.
    That said, it is imperative, as well, that we do it the 
right way, and that is why, with the lead of this committee, I 
did express some very serious concerns about the proposal, even 
though I agree with the vast majority of it. But I do think 
that the sooner we can get legislation, the sooner we can move 
forward with the commission trials, and that will facilitate 
our relations with our Coalition partners, with the 
international community and moving forward with the Global War 
on Terror.
    Admiral MacDonald. Sir, I would add one point to that.
    We currently have the process in place. We have the 
military prosecutors, the defense counsel in place. The 
overarching structure is there and waiting for a commissions 
package to be approved. So I think once legislation is passed, 
it will be--we can generate commissions trials pretty quickly, 
based on having those structures in place under the old 
commissions package.
    General Dunlap. If I could just add one point, it is very 
important, as one of my fellow panelists said, that the part of 
the Detainee Treatment Act on habeas be clarified, because 
obviously the Supreme Court had difficulty or had concerns 
about the application of that.
    If we get bogged down with habeas petitions before we can 
get a commission case tried, then that could delay the actual 
trials of military commissions, in my judgment. That is my 
personal opinion, sir.
    Mr. Simmons. Mr. Chairman, let me just conclude by saying 
that I read recently a new book that is out on the arrest and 
the prosecution of eight German saboteurs who landed in this 
country, on the East Coast of this country by submarine. Six of 
the eight were electrocuted here in Washington, D.C., after the 
tribunal; none of them had carried out any aspect of their 
mission whatsoever.
    But I would say that the so-called Administration of 
justice in that particular case was not a high point of the 
Roosevelt Administration even though we were at war and that, 
from my perspective, it is important that we come up with these 
new tribunals expeditiously.
    Again, nobody has been treated as those eight were treated 
so many years ago. But Americans do have a basic sense of 
fairness even in these difficult times, and I would encourage 
that we move forward on this as quickly as possible.
    Mr. Wilson [presiding]. The gentleman from Massachusetts, 
Mr. Meehan.
    Mr. Meehan. Thank you.
    Mr. Bradbury, so how many military commission convictions 
have we had?
    Mr. Bradbury. None, sir.
    Mr. Meehan. And we have had 261 convictions through the 
Justice Department for our own criminal system; isn't that 
right?
    Mr. Bradbury. I don't know the exact number, but I know it 
is around there.
    Mr. Meehan. Two hundred sixty-one related to terrorism. It 
just seems to me after 5 years since 9/11 that we would have 
been in a better position, stronger position. Particularly in 
view of who the President announced yesterday that we have in 
detention, that we would have anticipated how the Supreme Court 
might rule and that we should have been, in Congress, a lot 
earlier than this. I don't understand why the Administration 
didn't come to Congress to set up a military commission to deal 
with this earlier. I think it is unacceptable that 5 years from 
the anniversary of 9/11 and we haven't had a single military 
commission conviction when our own Justice Department has 261 
terrorism convictions.
    Mr. Bradbury. Well, I think the President also views it as 
unacceptable in the sense that it is past time to move forward 
with these prosecutions. I think that what I have tried to 
communicate--last time I was here back in July following the 
Hamdan decision, this is quite extraordinary in the history of 
armed conflict for the executive branch to come to Congress to 
get legislation for military commissions for the trial of enemy 
combatants. This is an unprecedented----
    Mr. Meehan. But we have had five years. You agree. And I 
agree with what General Dunlap says. We have to go through a 
process here. There are less than 20 days left before this 
Congress is scheduled to adjourn.
    The President, as you say, he has a right to decide what is 
classified and what isn't.
    And he unilaterally decided he will present all of this 
information with less than 20 days left on the calendar. Now we 
are asked to come up with something, frankly, we should have 
had a long time ago, and the proposal that I have seen 
essentially is a validation of what the Administration has been 
doing all along. It has been rejected by the Supreme Court. 
This policy is, seems to me, is not helping make America more 
secure. The fact there are so many JAGs here today that can 
point to serious flaws in the legislation proves that the 
rushed nature of this flawed proposal is problematic.
    You have come before us basically asking us to rubber-stamp 
yet another increase of executive power, with a deadline that 
is ticking away, with a proposal that seems to create another 
loophole by which the Administration can bypass the Geneva 
Conventions by approving abusive interrogation tactics after 
the fact, and by allowing coerced testimony aren't you saying 
that torture was okay in the past?
    Mr. Bradbury. No. The legislation makes clear that any 
statement determined to be obtained through torture wold be 
inadmissible in all circumstances. So we have an absolute bar 
on admissibility of any statements determined to have been 
obtained through torture. As to other statements not determined 
to have been obtained through torture, every accused is going 
to assert that many statements were obtained through coercion. 
And we think, again, it should be left to the military judge to 
determine whether the statement under the circumstances, 
hearing the arguments on both sides, is reliable and probative. 
If the military judge determines, based on all of the 
circumstances he has heard under which that statement was 
obtained, that it is unreliable or lacking in probative value, 
the legislation would provide that it would not be admissible.
    So--and we think again those judgments should be made by 
the military judges and we shouldn't create by statute some new 
exclusionary rule.
    Mr. Meehan. Wouldn't it be appropriate to craft a policy 
that would be able to withstand a Supreme Court challenge and 
prosecute all of the detainees rather than to rush this 
proposal through Congress at the last minute?
    Let me just read a quote. Senator Levin of the Senate Armed 
Services Committee was quoted in The New York Times today and 
he said, quote: ``If the Administration had behaved this way 
before Gitmo and the drafting of the--the drifting of Gitmo to 
Abu Ghraib, we would be a lot more secure country, our troops 
would have been more secure and our position in the world would 
have been more favorable.''
    Mr. Levin and others contested points in this proposal for 
tribunals in particular, denying the defense the right to see 
and therefore respond to classified information that is shown 
to the jury, and allowing the introduction of hearsay and 
coerced evidence.
    I would like everyone to comment on this. Would you comment 
on the status of hearsay evidence in the President's proposal? 
I am interested in why the military rule of evidence 807 is 
insufficient when it comes to hearsay.
    Mr. Bradbury. I think I will let the JAGs really respond to 
that because I think there was unanimity here on the hearsay 
proposal in the legislation that it is appropriate, and I think 
they are probably----
    Mr. Meehan. I am interested in why 807 is insufficient.
    General Black. In the--go ahead.
    Admiral MacDonald. Congressman, you are talking about 
residual hearsay.
    Mr. Meehan. I don't see why the rule of evidence 807 would 
be insufficient.
    General Dunlap. We do have a recent Supreme Court case. I 
think we have Crawford v. Washington, and we would have to 
evaluate what the impact of that case which does pretty 
significantly, I believe, limit the use of the residual hearsay 
rule. So in a military commission, setting the residual hearsay 
rule is in essence permissible. In other words, there is a lot 
more latitude to get in hearsay under the military commission 
process.
    My personal view is that while I do appreciate the 
discussion in the proposed legislation about the military judge 
excluding it if the judge concludes it is unreliable or lacking 
in probative value, and there is an additional paragraph in 
there that is taken from I think Military Rule of Evidence 
(MRE) 403 that says that the judge can exclude it if there is 
danger of unfair prejudice. But I would suggest, respectfully, 
some additional language along the lines that--to make it 
perfectly clear that the military judge can exclude evidence if 
its admission, for whatever reason, is not in the interest of 
justice or compromises a full and fair trial. There are those 
who will argue that that is implicit in the notion of exclusion 
based on the danger of unfair prejudice, but in my personal 
judgment it would be helpful if we made that clear that that 
would be a basis for the military judge to exclude evidence.
    General Black. I agree with his comments, sir, but I would 
add the provisions that have been incorporated into the 
legislation with respect to hearsay. They are consistent with 
the standard that has been applied in the international 
tribunals out there. I am very comfortable with this procedure.
    Admiral MacDonald. Yes, sir. I would concur with General 
Black. The International Criminal Tribunal of Yugoslavia, 
ICTY--this is to the hearsay rule that is in the commission 
package right now. That is the rule that is used and that is 
supported internationally by that particular court.
    And, again, going back to the Hamdan decision where the 
Supreme Court applied Common Article 3 and particularly talked 
about those judicial guarantees that are common to all 
civilized people, that would satisfy that standard. The current 
formulation in the package for hearsay would satisfy that 
formulation under--about national law. On my personal opinion, 
I am very comfortable with the formulation that is in here. And 
a lot of this language was--it was a partnership between DOJ 
and DOD in coming up with the current language that is in this 
proposal.
    Mr. Meehan. General, earlier you said you were surprised by 
the Supreme Court decision. Were you surprised at the decision?
    Admiral MacDonald. Yes, sir.
    Mr. Meehan. I think you testified to that earlier, you were 
personally surprised.
    Admiral MacDonald. I think everybody was surprised that the 
Supreme Court for the first time would apply Common Article 3 
in this type of a conflict. That is water under the bridge now, 
and now we are left with the Hamdan decision and Common Article 
3 applies, so now what we have done in looking at the 
commission's packages due to specific evidentiary rules that 
are listed in here--hearsay, coercion and others--do they 
comply with that standard as announced by the Supreme Court 
with respect to hearsay? I think we are in agreement that it 
does.
    Mr. Wilson. In the absence of the Chairman, I am 
Congressman Joe Wilson from South Carolina. I am particularly 
happy to be here today. I served 28 years in the JAG Corps and 
so as I look out and see you today, I want to thank you for 
your service. Additionally, I truly have never been prouder of 
JAG. Traveling the world six times to Iraq, twice to 
Afghanistan, twice to Guantanamo Bay, I have been so impressed 
by the professionalism of the JAG officers that you are 
training and giving leadership to. They are making such a 
difference on the civil action projects. It is amazing to see 
the progress in developing a military justice system for Iraq, 
for Afghanistan.
    The selflessness and dedication of JAG officers, I have 
never been more impressed. I am also very grateful. My oldest 
son served in Iraq for a year with the field artillery, and he 
has returned home and he has just done a branch transfer to 
JAG. So I am very, very grateful that he will have what dad 
didn't have, and that is combat arms experience. He is going to 
be an excellent JAG officer.
    The question that I have, Mr. Bradbury, under the 
Administration's proposal, the standard for admitting evidence 
under your proposal is whether the military judge finds the 
evidence would have probative value to a reasonable person. Why 
did the Administration choose not to use the rules of evidence 
applicable in trials by general courts-martial?
    Mr. Bradbury. We chose to look to the same rule of evidence 
that is applied in the International Criminal Tribunal context. 
So that is exactly the kind of evidentiary threshold that is 
used in those international criminal tribunals. And that is 
what we are really talking about here is a criminal tribunal 
for war crimes under laws of war. So you need a more flexible 
and open standard generally for admissibility, subject again to 
the review by the military judge.
    Mr. Wilson. The next question is the Administration's 
proposal states that all of the offenses codified in the 
legislation have traditionally been triable by military 
commissions. Of the 27 crimes codified in the Administration's 
proposal, which are considered a violation of the laws of war 
for those codified offenses not considered a violation of the 
laws of war, can you identify previous military commissions 
that have made these offenses triable?
    Mr. Bradbury. Well, the laws of war are not codified in 
some code somewhere. They are really based on the sort of 
common law, if you will, international customs and law of war. 
And it is a concept that evolves over time, and you have some 
offenses which are traditionally recognized for centuries or 
decades as violations of laws of war, and many of those are 
incorporated into treaties under laws of war, like the Geneva 
Conventions.
    Many of the offenses that we have listed in the legislation 
are drawn from those treaties and reflect those traditionally 
recognized offenses that have been codified into treaties. But 
other offenses we think can be recognized in the laws of war, 
even if not codified previously into treaty. You are talking 
about the kind of modern warfare involving war with a terrorist 
organization. Offenses like hijacking, offenses like terrorism, 
material support of terrorism. These are the kinds of tactics 
that the enemy is using in this new kind of war. And we think 
it is appropriate that the laws of war would evolve and reflect 
those kinds of offenses.
    So we think you can call them all laws of--violations of 
laws of war. Of course, certain offenses that are in here that 
we have codified, like material support for terrorism, come 
from Title 18 of the U.S. Code that is an offense that has been 
on the books and these folks have been subject to that offense 
since 1992 for the United States. We think it is appropriate 
that when they use those tactics in this war against the United 
States, they could be subject to trial for those same offenses 
under the military commission process.
    Mr. Wilson. And if you could provide at a later date what 
has been done we would appreciate it specified.
    Mr. Bradbury. Happy to do so.
    Mr. Wilson. A final question I have, I don't mean to be 
picking on General Walker, but I am very impressed with his 
academic background, Clemson University, where I have a son 
attending and another son a graduate, and then he and I are 
both graduates of the University of South Carolina. But, 
indeed, a very serious question as a parent with four sons in 
the military: How likely would it be that our soldiers would be 
charged for violations of Common Article 3 under 18 United 
States Code (U.S.C), section 2441, the War Crimes Act? Parents 
have a great concern.
    Mr. Bradbury. Maybe I will start us off. Since 1997 the War 
Crimes Act has made a war crime any violation of Common Article 
3. Now the United States has never been engaged and we never 
thought we were engaged in a Common Article 3 conflict, and we 
had in mind the sort of atrocities that were committed in 
Rwanda, for example, a classic Common Article 3 non-
international conflict. And that is what we had in mind when we 
incorporated that into the War Crimes Act. It is not a 
requirement of the Geneva Conventions, by the way, that we make 
every violation of Common Article 3 a war crime. But Common 
Article 3 contains some vague language, as I have suggested. 
And so what the parameters of those violations might be are 
subject to uncertainty and also subject to evolving definition, 
because they can be interpreted by international courts and 
foreign governments. We think it is important to give it 
certainty and definition for our troops, for our intelligence 
officers who are on the front lines, in terms of handling 
detainees on the war on terror so that they have that certainty 
and that clarity.
    So what we would do is substitute or replace this general 
reference to any and all violations of Common Article 3, 
whatever that might be, including humiliating and degrading 
treatment, an ill-defined phrase, substitute for that a set of 
very clear serious offenses that are well defined by statute 
that we can all recognize as the most serious violations of 
Common Article 3 and say those are the ones that are 
appropriate for prosecution as war crimes. So that all of our 
own personnel who are fighting in this war will have definite 
certainties as to what will and will not violate that war crime 
provision as a violation of Common Article 3.
    General Walker. Sir, I think it is important that we have 
this common definition. We have a definition of exactly what 
the offenses are, but in the end we must remember that as we 
try to protect our Nation, if a son or daughter of ours commits 
a crime, a war crime against the United States, they need that 
common definition, application of standards, and they too would 
need to be punished.
    General Dunlap. Could I add something to that?
    Mr. Wilson. Certainly.
    General Dunlap. As a practical matter in the military, many 
times we will--we will prosecute something which might be a war 
crime under one of our traditional military offenses: murder, 
rape, and so forth. One of the things that this country does 
better than many other countries is bring to bear exactly what 
you spoke about earlier, the fact that we have a robust Judge 
Advocate Corps in all of the services, because the evaluation 
of the specific facts and circumstances of a combat situation 
is informed, I think very hopefully, by the experience of a 
military lawyer. So that when the decisions are made whether or 
not someone needs to be held accountable, the convening 
authority and so forth has the benefit of that kind of advice, 
and that is why someone who has the combat arms badge becoming 
a Judge Advocate is especially valuable in these kinds of 
conflicts which are very confusing in chaos on the battlefield. 
Thank you, sir.
    Admiral MacDonald. Sir, I--I would add, the parents can 
rest assured that the military has trained to Common Article 3 
standards for quite some time. So it is--I mean, that is 
another area that we spend an awful lot of time and effort in 
making sure that our soldiers, our sailors, our Marines and our 
airmen are well trained before they go in to combatants, the 
standards of treatment that are expected of them when they 
handle detainees.
    Mr. Wilson. Again, thank you all for your service. And at 
this time, Mr. Snyder.
    Dr. Snyder. I want to make a quick comment. We had a 
conversation with another member, who over the recess had met 
with a young Marine who had returned from Iraq and very 
eloquently talked about the importance of the rule of law; that 
he had had multiple discussions with Iraqis who knew that 
Americans sometimes made mistakes, but that we had a system 
that made it much more likely that people would be brought to 
justice, our people would be brought to justice, and he talked 
about how important the rule of law was.
    Mr. Bradbury, I do want----
    Mr. Saxton [presiding]. Dr. Snyder, will you yield for a 
minute? I am told it would be nice to have a five-minute break 
here. So we will go ahead and do that and hurry back.
    [Recess.]
    Mr. Saxton. The time is yours. Dr. Snyder, the floor is 
yours.
    Dr. Snyder. Mr. Bradbury, I wanted--I don't want to ask 
this as a question. I want to pick on you a little bit. You 
quoted the President. I read your written statement this 
morning. You said the time has come. That is a--I found a very 
disconcerting statement to hear the President say it and to be 
picked up by the Administration for a variety of reasons. One 
of them is on this side of the aisle, this issue had been 
attempted to be addressed for the last year. Congressman 
Sanchez filed a bill June 23rd, 2005 that dealt with this and 
it was ignored by the Administration. You have had multiple 
people from within the Administration make comments saying you 
were going to get into trouble with this. It was predicted the 
Supreme Court was going to have problems with the route the 
Administration chose.
    So now to have the President, 60 days before an election, 
very dramatically, with a packed house at the White House, talk 
about the time has come, it is very discouraging for us who 
think that what we need to do as a Nation is to be tough, 
thoughtful, and bipartisan and united and come up with a system 
that reflects our American values and not to use these kind of 
issues as a--as political pawns in an election year.
    I wanted to get some specific issues and I think I will 
make some comments and let the military people respond if they 
would.
    First of all, this is an ongoing issue. Mr. Buyer is here 
because he is a JAG, as you know, in the Army Reserves. We 
don't have much time, and usually when we ask questions for the 
record or anything written, because of the process it will be 
months before we get them. But I would like to direct a 
question to our folks representing the JAGs today. I would like 
you to provide written information to all members of the 
committee on recommendations that you would like to see--have 
seen included in this that were not incorporated into this 
draft. It would be helpful, I think, as we are trying to sort 
through this.
    One of the issues that--Chairman Hunter is not here, but 
you all went back and forth several times with Mr. Bradbury, 
the JAGs, about well, what if you actually get down to a 
scenario with a piece of information that is classified and the 
prosecution could not move ahead without that piece of 
information. Would you all address this? What if that were on--
the shoe was on the other foot and it was one of our folks that 
was captured by somebody and was being tried? Would we want our 
folks--would you all want to be tried if you were captured by 
somebody with a piece of classified information that you could 
not confront? I would like you to respond to that.
    I would also like you to respond to the specific question 
Mr. Bradbury addressed. I am not sure I heard each one of you 
address it. Do you feel that the draft we have here--and I 
assume you all got it before we did last night--do you feel it 
adequately addresses our legal obligations under the Geneva 
Conventions?
    And then my last question is the preamble, the findings; we 
members of Congress, we love findings. We always put stuff in 
there. A lot of times they are not factually accurate. We love 
findings, but it seems to me it is somebody's op-ed piece that 
got included on a piece of legislation that is going to be 
problematic. Is it necessary that we have that set of findings? 
I would think that we may be able to put together broad support 
for a bill like this if we left off the findings.
    Those are my questions, if we can have the JAGs respond. 
Start with General Black.
    General Black. With respect to your question on classified 
evidence, I think I articulated my position early on. I think 
we need two protections built into the legislation, the first 
of which would provide that evidence should be excluded if it 
is the sole evidence that is necessary to prove a material fact 
for conviction. And the second recommendation or the second 
change I would make would be to add a provision--would be to 
require instruction from the judge to the effect that if the 
accused has at the end of the trial been excluded from seeing 
classified evidence, that the panel members, the members of the 
commission itself, the triers of fact, be advised that that 
evidence was excluded and be advised that they should accord 
appropriate weight to it. So I would make those two changes.
    With respect to your second question, overall I am 
satisfied that the legislative package as it exists right now 
satisfies our obligations under international law.
    And your third question I think is out of my lane, sir.
    Admiral MacDonald. Sir, I would agree with General Black 
with just, I guess, a couple of caveats. First, with respect to 
classified evidence. I think you--your first question alluded 
to how would we feel if such a rule were applied against one of 
our own service members. And we have actually testified to that 
before in front of the Senate Judiciary Committee and we have 
testified with the former Chairman of the Joint Chiefs who 
mentioned--General Myers mentioned that the issue of 
reciprocity was an issue for him, and it is an issue, in my 
personal opinion, for me as well that we would be the first 
country that would allow evidence to be presented against an 
accused that he would not be able to view. And I would be very 
concerned as a matter of policy that such a rule could be 
applied against one of our service members by another country 
that is out there.
    Dr. Snyder. And their defense would be, hey, this is how 
you treat our guys.
    Admiral MacDonald. Yes, sir. So to your second question, I 
am generally pleased with the commission package I would say, 
with two caveats, the first one being the classified evidence 
that I just mentioned, and the second being that provision that 
talks about coerced statements and that you could admit coerced 
statements as long as they were reliable and probative. And you 
could have a statement that was determined to be reliable by a 
military judge based on other evidence that was introduced that 
was nevertheless coerced. And I am concerned about that.
    The legislation right now bans the use of statements 
obtained by torture. That is a good thing. I would recommend 
that you look to the Detainee Treatment Act which you passed 
for additional standards, and I would recommend that you look 
to--and I think I mentioned this earlier to the Chairman--that 
you look to the cruel and inhumane and degrading treatment. If 
statements were obtained in violation of the Detainee Treatment 
Act, I would recommend that those statements be excluded. And I 
think that goes to not necessarily because you couldn't make 
out that they were reliable or probative, but because I think 
that goes to the underlying fairness of our process and our 
proceedings. So with those two caveats, I am generally pleased 
with the commission's package.
    Dr. Snyder. Mr. Dunlap.
    General Dunlap. I completely agree with Admiral MacDonald 
in all of the particulars. My main concerns about the 
legislation as it is written are those that he has articulated 
in the exact same way. I feel that the proposal is deficient in 
those respects that he has outlined as to whether or not we 
would want to be tried, or any servicemen. I wouldn't want any 
American citizen or any citizen of the world tried under a 
circumstance where the finder of fact would have evidence that 
the accused never sees. I don't think that that process would 
meet Common Article 3 or fundamental notions of justice. We are 
a better country than that.
    So, and as to the third item, I do think it is out of my 
lane, and I respectfully defer on that one.
    General Walker. Sir, in my opening statement I said I had 
two concerns. The first of those dealt with trying an 
individual where he does not have the ability to see the 
evidence against him. I simply believe that there can be no 
full and fair trial absent the accused's ability to see the 
evidence against him and to be present when that evidence is 
presented. I think that is one of those baseline principles 
that are fundamental and considered indispensable to a system 
of justice among civilized people.
    As to the issue of reciprocity, it is really tied with that 
one, sir. I think we have to understand as Congress debates 
these important issues that what we do, how we treat these 
individuals, can have an impact upon how other countries treat 
our servicemen and women as they go to foreign shores in future 
conflicts in future years. So that reciprocity is important.
    Generally, I believe we have addressed in this proposed 
legislation--it does address and comply with the Geneva 
Conventions in my opinion, with the exception of the right to 
see the evidence against you, even if it is classified. As to 
whether the findings of the preamble to the bill are necessary, 
I concur that fortunately that is my decision to decide those.
    Dr. Snyder. Thank you. One final comment, Mr. Chairman. I 
have had some concerns and maybe this can get cleaned up. I 
have read through this thing quickly a couple of times and it 
seems like it is still pretty rough. I mean at one point in 
there, we refer to appellate counsel, appellate government 
counsel, and appellate military counsel. I assume they are all 
the same, but maybe they are not. There is a phrase, section 
here, that says that there may be no disclosure to the defense, 
the defendant, if the defense receives exculpatory evidence. 
Now, I don't know why--why would we have a provision in there. 
Does that make sense?
    Mr. Bradbury. Congressman, I believe that relates to only 
classified.
    Dr. Snyder. No, it doesn't. That is what I mean by the 
shoddiness of the way it is drafted. It says notwithstanding 
any provision of law, any defense counsel who receives evidence 
under this subsection shall not be obligated to and may not 
disclose that evidence to the accused. And the title of the 
section is Disclosure of Exculpatory Evidence. That is what I 
mean by--while I encourage you to look at that, it can be 
cleaned up, but it doesn't say that it reads very clearly that 
it refers to all exculpatory evidence.
    Mr. Bradbury. I think the subsection refers to classified 
evidence. That was certainly the intent, that it is limited to 
that classified evidence that is determined under those very, 
very extraordinary and limited circumstances by the military 
judge not to be appropriate for sharing with the accused. And 
the reason we put that provision in that, specified by Federal 
statute, that the defense counsel could not share that with 
the--with the accused is actually in response to comments from 
the JAGs and other military lawyers that we wanted to have 
something very clear in that event that would override the 
State bar requirements of those counsel. Because if you did--if 
you left it silent, State bar rules might be interpreted to 
require that counsel not to participate in those proceedings.
    And so we think you can override that by Federal law and 
that would actually give a protection to the counsel 
participating in those proceedings and enable it to go forward.
    Mr. Saxton. Dr. Snyder, I want to thank you for bringing 
those last issues to our attention in particular and we will 
make sure that our legal people will go through them.
    Dr. Snyder. I encourage you to read that section.
    Mr. Bradbury. We absolutely will, Congressman. Thank you.
    Mr. Saxton. Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman. And thank you, 
gentlemen, for being with us today. You know I have been very 
concerned about this issue for several years now. I actually 
introduced a bill in 2004 that dealt with this issue in 
particular, since I had been to Gitmo and with the Padilla case 
and the whole issue of rights of these people that we were 
supposedly trying, and of course with some of the lower appeals 
court decisions that came forward out of the D.C. court and 
also the Supreme Court decision. So it was no surprise to me 
that Hamdan came along and the Supreme Court basically said 
Congress hasn't been doing its job. And that is really where it 
is. I mean, the Administration walked on this and went and did 
their stuff simply because this committee in particular of 
jurisdiction didn't address this issue.
    Article I, section 8, is pretty clear. It is our job to do 
it and our counterpart in the Senate. So I am glad we are at 
this point now, but we really could have done this several 
years ago in my opinion.
    I have been looking at the President's proposal and one of 
the main issues that I have is this whole issue of an appeals 
process, because I think that is an incredibly important piece 
of this.
    The existing military appeals court under the UCMJ commands 
wide respect, whereas the ad hoc review that the Administration 
has provided for in the DOD military commission orders has 
failed to command this kind of respect out of the commentators 
who have been looking at this.
    Mr. Bradbury, if the military appeals process that we have 
under UCMJ is so revered, can you explain why the 
Administration proposes to put in the Court of Military 
Commission review? In other words, why set up a new system when 
you have got this system that works, that everybody likes, that 
everybody has respect for, where we have the experience. Why 
not use that existing process?
    Mr. Bradbury. Well, we have tried to create a parallel 
process. So we have used the model of the UCMJ Code of Criminal 
Appeals. But one of the things I think that has been very 
important, as I tried to stress to the President, in all of 
this is that this be a separate and distinct process for 
military commission trials, separate and distinct from the 
courts-martial trials that are used for our own troops. So we 
just--we are simply creating a separate process that is modeled 
on the UCMJ.
    Ms. Sanchez. But doesn't it go out of the military and go 
to the U.S. Court of Appeals, to the District of Columbia 
Circuit and the Supreme Court? So it is into the Federal court 
system. It is not using the existing military system which is, 
you know, which is what my point is, and appeals process that 
is tried and true under a commission that is sitting--that is 
basically sitting under UCMJ.
    Mr. Bradbury. Well, I think you are referring to the Court 
of Appeals for the Armed Forces which hears appeals from the 
Court of Criminal Appeals, which in turn hears the appeal of 
the court-martial proceeding. And we simply chose to retain the 
appeal process that Congress had decided on and the Detainee 
Treatment Act and decided not to open that door again for 
redebate and reconsideration. We think it is a--in fact, in 
some respects gives more protection in the sense that it is an 
appeal to an Article 3 court as opposed to an appeal to a court 
that is not an Article 3 court: the Court of Appeals for the 
Armed Forces.
    The Court of Appeals for the Armed Forces is steeped in the 
precedence and decisions of the courts-martial, and we felt it 
was important that--and in fact a law would stipulate that the 
precedents that have developed for courts-martial are not 
binding in this procedure on military commission. Of course, 
the courts can look to them as a persuasive precedent or useful 
precedent but they are not binding. This, again, is a separate 
proceeding with separate standards, and we thought it was 
appropriate to have an Article 3 court that is--that is 
separate from those precedents and those traditions taking a 
fresh look at the issues as they come up on appeal for the 
first time, because we haven't conducted military commissions 
in this country for a long time.
    And so this will be a novel set of circumstances, and we 
just sort of wanted the whole process to be fresh and to 
develop as cases evolve under this new proceeding fresh, and to 
make it clear that it is distinct and separate from the court-
martial traditions and the court-martial process.
    Ms. Sanchez. May I have one more question?
    General Black, in your testimony before the Senate Armed 
Service Committee in July, you seemed to endorse the idea of 
using existing military appeals court to review military 
commission cases. Do you agree with that approach or do you 
still have--do you agree with the approach that the 
Administration is putting forward, or do you still have 
lingering concern with the appeals process? And don't you think 
it would enhance the credibility of the military commissions 
process to place them under the appellate jurisdictions of an 
established and respected military appeals courts? And of 
course I would invite any comments from the rest of the JAGs 
here.
    General Black. Let me begin, ma'am, but I am comfortable 
with the appellate process that exists in the legislative 
package that is put forth for three reasons, the first of which 
is since my testimony before the Senate Armed Services 
Committee (SASC) in early July the procedures have been drafted 
and we have incorporated a number of remarkable safeguards, the 
first of which is the proceedings will be presided over by a 
uniformed, certified, and qualified military judge. And I am 
confident that the presence of such trained and certified 
individuals in the presiding role will ensure a full and fair 
trial at the trial level.
    Second reason, though, is in getting right to the heart of 
your question with respect to the--to whether the appellate 
military courts would be an appropriate forum here, I think 
not. I think that the interim courts that have been suggested 
here with the follow-on appellate process that provides for 
review by the D.C. Court of Appeals is a good way to go. And I 
say that because our military appellate courts are, as Mr. 
Bradbury suggested, steeped in the rules and procedures for the 
Uniform Code of Military Justice. They are indeed experts in 
that and the foremost experts in this.
    This is a different process right from the beginning. And 
frankly, you know, their expertise is, while perhaps related, 
isn't as related as might be hopeful or in terms of an 
appellate process. So I don't see that they are necessary. I 
think the interim appellate court with a follow-up from the 
D.C. courts is an acceptable alternative.
    And the third reason I think that is appropriate is the 
responsiveness. Our military appellate court system right now 
is chock full of cases. They are working very hard and staying 
up with our workload, but adding this additional burden would 
not be--would not be helpful at this time.
    Ms. Sanchez. So you feel comfortable having it be 47A of 
the Uniform Code system, but at the same time having the 
uniformed judge in a Federal court system doing this?
    General Black. Yes, ma'am, I am.
    Mr. Saxton. The gentlelady's time has expired.
    Ms. Tauscher.
    Ms. Tauscher. Thank you, Mr. Chairman. Thank you, General 
and Admirals. I have to tell you that as much as I listen to 
this, both sitting here and in my office--I am not a lawyer, 
but I have watched Law and Order for as long as it has been on 
TV so I consider myself to have a law degree by TV. I think 
many Americans do. And I think that what many of us consider to 
be one of the keystones of being in our system and being, 
frankly, the envy of the world when it comes to our ability to 
deal with justice in this country are three simple things: 
fairness, swiftness, and certainty. And up until now, as we 
approach the fifth anniversary of September 11th, we have been 
none of those. We certainly haven't been swift, we haven't been 
certain, and the fairness issue I think is something we are 
trying to work on now.
    What troubles me is the environment that this is all coming 
down on, and none of you play in the dangerous game that we 
play on this side. You play on a dangerous game in the 
military. We play on one called politics. This is now being 
foisted on us and, Mr. Bradbury, I am--I am impressed by what 
you said. You worked with people--I think you actually said 
something like both sides of the aisle--but I can promise you, 
you didn't work with any House Democrats on this.
    And as as we sit here, we are now finding out what the 
Administration's plan is, and I guess we are being told that 
this has got to be done swiftly, and there has been no justice 
for the 9/11 families in the four-plus years since September 
11th, but we have got to do this right now. And believe me, I 
stand second to no one in wanting to get these bad guys. I 
stand second to no one in wanting to be sure that we can 
excrete from them in all possible manners, in things other than 
we all know is wrong, the information we need to protect 
ourselves, the person, people, and our allies.
    But it is deeply troubling to me that in a very political 
environment this thing gets dropped on our heads and we are 
told we have got to take it or leave it. And believe me, that 
is what is going to happen. This is not going to be the kind of 
process that we should have a deliberative process. Yesterday 
at eight o'clock I was at a briefing with some of your 
colleagues on the new amendments to the Army Field Manual. Took 
18 months. We expected to have it last February. We weren't 
even told on February 28th that it wasn't coming. But there are 
lots of real good excuses why we didn't get it until yesterday. 
But it took 18 months. But we are meant to do this in five 
legislative days.
    So I don't really have a question. What I really have is a 
sense of frustration. We have already gotten it wrong once 
doing it just this way. And I will tell you that I have got 
lots of problems with the President's proposal. That doesn't 
mean I am weak. It doesn't mean that I am an appeaser. It just 
means I am trying to do it right. I would like to be able to 
really believe that if we found Osama bin Laden we could 
actually prosecute him and get justice for the American people. 
I am not sure we can under the circumstances that we have now.
    I applaud all of you for your hard work. I know that you 
are trying to do the best you can. We are, too, on this side. I 
am not sure we are winning. I yield back.
    Mr. Saxton. I thank the gentlelady.
    Mr. Bradbury, did you meet with Mr. Skelton? Did you have a 
meeting with them on this subject?
    Mr. Bradbury. Yes, sir.
    Mr. Saxton. Thank you. Susan Davis.
    Ms. Davis of California. Thank you.
    Ms. Tauscher. Mr. Chairman, can I make a point? We never 
saw the proposal until last night, even though he might have 
met with Mr. Skelton.
    Mr. Bradbury. I did show draft legislation to Mr. Skelton.
    Mr. Saxton. It is Mrs. Davis' time.
    Ms. Davis of California. Thank you, Mr. Chairman. Can I 
follow up on that for a second, because I know you all have had 
input, and perhaps you would be willing to share that process 
with us and how much input you actually had. But we could go 
down the line. When did you all see the final language of this? 
Could you share that with us? Mr. Bradbury, I assume you saw 
it. When was it complete, I guess?
    Admiral MacDonald. We were given it last Friday. Actually, 
I am sorry, a week ago Wednesday we received what was the final 
draft to take a look at. The proposal that you received, we did 
not receive until day before last.
    Now I think also, Congresswoman, you asked about our 
involvement in the process. I would say that we had a very 
robust discussion with Department of Justice beginning in late 
July, which included setting up a working group between DOD and 
DOJ that met over about three or four days, working on going 
back and forth with different proposals and adding language.
    So what you see reflected here in this package, there was a 
lot of language that DOJ took from the military departments in 
putting this together. They didn't take all of our suggestions, 
but that is the interagency process at work. They are not 
required to take all of our suggestions.
    Ms. Davis of California. Right. I understand. Is there any 
difference among the rest of you in terms of when you saw the 
material, basically?
    General Dunlap. No, ma'am. I saw the material exactly as 
Admiral MacDonald has testified. I would, just to make it 
clear, there were some meetings at the end of July and in the 
beginning of August. But to my knowledge, there have not been 
discussions since the beginning of August to a few days ago. I 
will say that many of our suggestions were incorporated. Not 
all of them. And as you have heard before, I have at least one 
very serious reservation about the proposal.
    Ms. Davis of California. Thank you. I appreciate that.
    Just in the interest of time I am just going to go on, 
because I think the two areas that you have all identified 
dealing with classified information and also with coerced 
testimony, what do you see, what implications do you feel exist 
if in fact those concerns which you have addressed--and I 
understand that some of your concerns have been incorporated--
but what are the implications of that to you? It sounds to me 
like those are very serious and you would want us to certainly 
take that under advisement.
    Admiral MacDonald. Yes, ma'am. I go back to the reciprocity 
issue that we raised earlier, that I would be very concerned 
about other nations looking in on the United States and making 
a determination that if it is good enough for the United States 
it is good enough for us, and perhaps doing a lot of damage and 
harm internationally, if one of our servicemen or women were 
taken and held as a detainee. I think that the reciprocity 
issue really gets to the heart of it.
    Colonel Reed. I think there is another part of the 
legislation that goes to the reciprocity issue. And, again, 
understand that the legislation as proposed applies to unlawful 
combatants, basically terrorists.
    There is a section in the legislation that is critical, 
that says for the folks who follow the law of war--the lawful 
combatant, our men and women in our Armed Forces and the other 
men and women in other armed forces of other countries--that 
they will not be subject to this legislation, that they would 
in fact be tried under the UCMJ. That is a critical point, 
because if the argument is going to be made that we need to be 
treated as we would treat others, we are going to treat lawful 
combatants under the processes and procedures of the UCMJ.
    General Dunlap. I slightly differ from my colleague there. 
I think the reciprocity issue is very important because, even 
taking that argument at face value, there are other American 
citizens in other government agencies, and whoever might be 
subject to this kind of procedure--and I don't believe 
personally that it meets Common Article 3 standards--to have a 
trial where someone can be executed, where they don't get to 
see the evidence that is presented against them before the 
trier of fact. We can have procedures with the judges to 
determine what the summary is and so forth and what gets to go. 
But once it goes to the trier of fact, in my personal judgment, 
it must be available to the accused so that he or she can rebut 
it.
    Ms. Davis of California. Thank you. My time is up, Mr. 
Chairman. I was going to follow up with a quick question about 
the response of the Supreme Court to that; if you think that 
would be an overriding concern as well which has been 
identified in the Hamdan decision; is that correct?
    General Dunlap. Yes, ma'am. I think it would be very 
problematic.
    Ms. Davis of California. Which could delay justice in many 
instances.
    Mr. Saxton. Thank you. Mr. Larsen.
    Mr. Larsen. Thank you, Mr. Chairman. It seems to me if we 
would listen to the JAGs, not in July of 2006 but perhaps in 
January of 2002, we would not be sitting here today. And you 
talked about your involvement in the process in putting this 
legislation together. Again, it seems to me that the reason we 
are here today is because of the lack of involvement or the 
lack of listening by this Administration from military judge 
advocates back when they were first putting together this 
military commission, and as a result we have had no trials, 
commission trials, for terrorists. We have had no convictions, 
and we have had no justice for Americans. And we have been 
waiting five years for this. And frankly the American people 
should be very tired of waiting for this. And then the 
President says the time is now but.
    Mr. Bradbury testified earlier that there is no guarantee 
that these 14 guys they rolled out yesterday are going to be 
prosecuted under the system anyway. And so it seems to me that 
we ought to try to get this thing right so that we do prosecute 
these folks.
    There is a level of justice for Americans. I don't really--
I don't really care about the lives of these terrorists. I care 
about some justice for the Americans who have been victims of 
these terrorists. But then we hear that they may not be 
prosecuted anyway under the system that--under some bill that 
we pass. We need to get something passed. We have been waiting 
long enough, and I hope we don't get bogged down in some, you 
know, bickering by the Administration over the reciprocity 
issue of classified evidence or coerced testimony.
    It seems to me that there are definite concerns from 
uniformed judge advocates that if those issues are not 
addressed adequately, it may not pass muster again with the 
Supreme Court. Admiral MacDonald, would you say that is an 
accurate statement?
    Admiral MacDonald. Sir, given the Hamdan decision and that 
we had four justices who came down and said that excluding an 
accused from trial when evidence is presented against him, four 
of them said that they would have real difficulty with that. 
Justice Kennedy who would be the fifth, and who would give them 
a majority, said that he would be concerned. He would view 
excluding an accused detainee from the trial with concern. And 
after the fact on appeal if it--if it prevented the accused 
from getting a full and fair trial, he indicated in his opinion 
that he would--he would reverse. So I think the law is 
unsettled on this point, but you can draw your conclusions from 
where the justices came down on that point in the Hamdan 
decision. And they tied it directly to Common Article 3.
    Mr. Larsen. Would you agree with that assessment?
    General Dunlap. I agree it would be very problematic before 
the Supreme Court. I don't think the Supreme Court, for 
example, would ever affirm a decision to execute an individual 
who was tried--the trier of fact relied upon evidence that the 
accused never saw and never had a chance to defend himself 
against.
    Mr. Larsen. General Walker, is this your opinion about the 
Supreme Court?
    General Walker. I would really concur with that based on 
the findings or the writings of the specific justices in the 
Hamdan decision that it would be problematic where they would 
approve a procedure where the accused did not have access to 
the evidence against him.
    Mr. Larsen. General Black.
    General Black. I agree with General MacDonald's assessment.
    Mr. Larsen. Seems to me we ought to get that part resolved 
if that ever gets back. We wouldn't have a bunch of cases 
thrown out again because the Administration didn't do the right 
thing the second time, much less the first time.
    I want to make a point about the findings as well.
    You all--it is out of your lane, I appreciate that. You 
don't have to make amends. I will make a comment. Finding 
number three, as an example: on page three it says the 
President's authority to convene the military commissions 
arises from the Constitution's investing in the President the 
executive power and the power of the Commander of Chief of the 
Armed Forces. I hope we don't pass that finding. The Supreme 
Court of the United States decision contradicts that finding 
directly. It says no, you have to come to Congress to get 
approval of this kind of commission. We have to put our stamp 
on it, whether it is this proposal or something closer to the 
UMJC minus provisions. The Administration lost at the Supreme 
Court. And as a result, the American people are left in limbo 
on the prosecution and conviction of these terrorists.
    So, just as an example of the findings that are just 
totally out of whack with it and inconsistent with the Supreme 
Court, we have to, you know--we need to take a full vetting of 
the findings in this. Mainly just focus, probably, on what we 
need to do, a process in place to get prosecutions and 
convictions of these--of these terrorists.
    Mr. Bradbury. Well, Congressman, I will say, obviously, 
findings in legislation are the business of Congress. We are 
offering these up as proposed findings. I don't think that one 
is out of whack. I would say this is an area where, very 
clearly under the Constitution, the branches share substantial 
responsibility and power, because Congress does have the 
express authority under Article I, section 8, to define and 
punish violations of the law of nations.
    Mr. Larsen. But you have been using the authority to use 
military force and you account for any and all justifications. 
We pass something like this, who knows what you would use this 
for in the future or this Administration or the next one or the 
next one beyond that. We have to be very careful it isn't 
proven over the last five years. The Congress has to be very 
careful how it crafts legislation, in providing legislation, in 
providing authority to an administration, whoever it is, 
because of how they might use it in the future.
    Mr. Saxton. Thank you, Mr. Larsen.
    Mr. Bradbury and Colonel Reed, Mr. Larsen instigated a 
great conversation on the attitude of the Supreme Court. Would 
you two gentlemen comment?
    Mr. Bradbury. Well, I will say that it is the case that 
Justice Stevens and the four members of the plurality opinion 
looked to just glance at the idea that classified evidence may 
be used outside the--considered by a commission outside of the 
presence of the accused. I think Justice Kennedy reserved 
judgment on that point, did express some concern but said he 
would wait to see how it is applied and how it unfolds in a 
particular case and on appeal.
    Again, we are suggesting that--like Justice Kennedy, we 
would suggest that Congress not prejudge that issue and 
foreclose that possibility, because the circumstances of the 
particular prosecution may necessitate it. And a military judge 
may be able to do it under all of the protections and 
safeguards we have put in, which have been--a lot of 
protections and procedural requirements and hurdles have been 
added to this legislation over the course of our very 
productive discussions with the JAGS, not fully to the 
satisfaction of the JAGs, obviously, but a lot of additional 
procedural safeguards have been put in place. We think those go 
a long way toward protecting the fairness of the trial in these 
circumstances, and we would just ask that that door not be 
closed on that possibility because it could be very important 
and serve for prosecutions.
    Mr. Saxton. Thank you. Colonel.
    Colonel Reed. I would agree with Mr. Bradbury. I have full 
faith and confidence in our military judges that are certified 
under article 26 to be able to look at these issues, to be able 
to use the parameters that are provided for in the legislation 
and come to a full and fair decision in terms of particular 
evidence.
    I think that often if you paint a particular fact pattern 
where the sole evidence of an accused's guilt maybe a 
classified piece of evidence they never see, you may very well 
end up in the result that Colonel Dunlap said. But I think the 
judge ought to be allowed the opportunity to make that call; 
and I am confident that the procedures here, at least from my 
perspective, offer a full and fair ability to get to that 
result.
    Mr. Saxton. Mr. Larsen's time has expired.
    Mr. Butterfield.
    Mr. Butterfield. Thank you very much, Mr. Chairman.
    Let me join my colleagues in thanking each and every one of 
you for your testimony here today. While I have not heard all 
of the questions and answers throughout the day, I did hear 
your opening statements and thank you very much for your 
testimony.
    Let me talk with Mr. Bradbury for just a second. And I 
realize that I am probably the last member to address you, and 
I may be standing between you and some food, and so I will try 
to be as brief as I can, but let me get back if I can, Mr. 
Bradbury, to the reciprocity issue. Did you speak to 
reciprocity at any time during the day? I know some of the 
generals did, but would the Administration find these 
procedures that you put forward to be acceptable to one of our 
members if they were being tried by a foreign government?
    Mr. Bradbury. I think probably not, and I think that--I 
would say, we think that the procedures are fair and that they 
comply with Common Article 3. When you are talking about your 
own troops, you would like to see as many procedural safeguards 
as possible. Reciprocity is a legitimate concern and one that 
merits a lot of attention and----
    Mr. Butterfield. If Lieutenant John Smith was captured on 
the battlefield by another government and put on trial, we 
would not want these same rules to apply. Is that the 
Administration's position?
    Mr. Bradbury. We think these procedures are fair, but we 
would like to see for him, under the Geneva Conventions, he is 
entitled to the same kind of procedures that that nation would 
apply to its own armed forces. So just as we use courts-martial 
for our own troops, we would like to see those troops tried by 
court-martial-like procedures with all those protections if 
captured by a foreign nation.
    Mr. Butterfield. I am sorry. Go ahead.
    Mr. Bradbury. That aspiration and that international 
standard does not mean that these procedures are unfair or 
inadequate.
    Mr. Butterfield. I have not had a chance to review this, 
and I am anxious to read the detail of your proposal, but do 
you suspect that you will build a good support base of the body 
with this bill? Do you think the Senate is going to support 
this? Do you have any indications at this point?
    Mr. Bradbury. Well, I think some senators have indicated 
support for it. I think that there is generally very broad 
support for--just as I think you have seen from this panel 
today--95 percent of what is in this legislation. I think the 
one or two issues that everybody is going to focus on in both 
Houses of Congress are the issues that have been the focus of 
much of this hearing.
    Mr. Butterfield. Tell me if I am right or wrong on this, 
Mr. Bradbury. Under the President's authority as he perceives 
it, a suspected terrorist can be held indefinitely, even though 
he may be acquitted of a war crime. Is that the 
Administration's position? If we put someone on trial, they are 
found not guilty, are we obligated to release them to their 
home country?
    Mr. Bradbury. If the person has been determined to be an 
enemy combatant, lawfully detained in this--under the laws of 
war, under those laws of war we can detain that enemy combatant 
for the duration of the hostilities.
    Mr. Butterfield. Even though they are acquitted?
    Mr. Bradbury. Even though they are acquitted for a 
prosecution of a particular war crime they may have been 
alleged to have engaged in. This procedure is a separate 
procedure from that that allows the United States to hold enemy 
combatants. This is a procedure for the trial and punishment of 
enemy combatants for war crimes that they may have committed. 
That is separate from our right under the laws of war to hold 
them as be an enemy combatant.
    Mr. Butterfield. I have in my hand, Mr. Bradbury, what 
appears to be 14 charges of conspiracy for the 14 individuals 
who were being transferred to Guantanamo Bay; and it appears 
that the charge is conspiracy. Wasn't conspiracy specifically 
excluded by the Supreme Court in Hamdan?
    Mr. Bradbury. Excuse me. No, Congressman. Justice Stevens 
and the four members of the Court in a plurality opinion 
concluded that conspiracy was not a substantive offense that 
could be separately charged under the laws of war, but that was 
not part of the majority decision for the Court that Justice 
Kennedy joined in. Justice Kennedy declined to reach that 
issue, and it is our view that conspiracy is something that has 
been recognized previously as an offense under the laws of war 
and something that Congress would be within its right to 
recognize in this legislation.
    Mr. Butterfield. Finally, let me ask you, Mr. Bradbury, 
aren't there currently courts-martial cases against our own 
military personnel for crimes that have been committed in the 
theater of operations?
    Mr. Bradbury. Yes, I believe that is right; and the JAGs 
can certainly speak to that.
    Mr. Butterfield. Tell me--and how are the witnesses being 
gathered in those cases? And how is the evidence being handled?
    Mr. Bradbury. Congressman, I will defer on that question to 
the experts who know better than I to my left.
    General Black. Yes, sir. We are indeed trying cases both in 
Iraq and in Afghanistan and back here at home. We have brought 
troops and units back. We gather the evidence and the witnesses 
just as we do in any other criminal prosecution.
    Mr. Butterfield. Do you find it problematic?
    General Black. It is difficult, sir, yes. At times when you 
are on a battlefield, it is difficult to find the witnesses on 
occasion.
    Mr. Butterfield. But we are doing it?
    General Black. We are doing it. Yes, sir.
    Mr. Butterfield. Well, again, thank each one of you for 
your testimony.
    Mr. Bradbury. Thank you, Congressman. Appreciate it.
    Mr. Butterfield. Yield back, Mr. Chairman.
    Mr. Saxton. Thank you very much.
    Mr. Buyer, thank you very much for your patience. It is, 
after three and a half hours, your turn.
    Mr. Buyer. Thank you, Mr. Saxton. It has been six years 
since I sat beside you.
    I want to thank you gentlemen for being here. I am going to 
ask some questions about process, and then we will go to 
substance.
    So, on process, I would--I am trying to get a better 
picture here on the participation of the JAGs in the process. 
So, as I understand it, you were convened to be participating 
in a working group in July. Is that correct?
    Admiral MacDonald. Yes, sir.
    Mr. Buyer. And that lasted four or five days?
    Admiral MacDonald. Yes, sir.
    Mr. Buyer. And did you have any other contact since July?
    Admiral MacDonald. No. But when we got the final package, 
we reviewed it, and it hadn't changed substantively from the 
proposal that we received after the working group met.
    Mr. Buyer. So as--speaking to the JAGs now, as you look at 
what is before us, the bill, and as you flip through the bill, 
you could do what we do here in Congress. All of a sudden you 
recognize your words, you recognize your provisions. When you 
go through this, how much of this are your words and your 
provisions? If I asked you to pull out a highlighter and 
highlight what are your provisions in your words, could you do 
that? Or would that be difficult to do?
    Admiral MacDonald. I think we could do a decent job of 
doing that. For example,----
    Mr. Buyer. Let's just cut to the chase. Is this your work 
product? Or is this Department of Justice work product?
    Admiral MacDonald. I think it is a combined work product.
    Mr. Buyer. How much combined? Give me a percentage. You 
can't do it? Or you are hesitant to do it?
    Admiral MacDonald. No. No. I can talk generally about some 
of the provisions that I have seen, some of our changes.
    Mr. Buyer. I will tell you what, if I partner with you in 
working something, I think I know how much is my work product 
and how much is your work product, wouldn't you? You and I must 
have a different consistency then, because I am going to know.
    I guess here is what my problem is. I am going to go to Mr. 
Larsen. He complimented all of you. He complimented the JAGs. 
The JAGs should be included more in the process. I concur. I 
agree. So I am a huge advocate of the JAGs here.
    So I just want to know, you see, this is going to be called 
military commission. You are about to be used. So if you are 
about to be used, I want to know how much of the military has 
been involved in the process. So please answer my question. How 
much of this is military work product?
    Your silence is killing me.
    General Dunlap. Congressman, I believe that the draft was 
prepared by the Department of Justice.
    Mr. Buyer. Okay.
    General Dunlap. There was input by judge advocates and our 
representatives, our folks, at the end of July. I believe the 
Attorney General came over and spoke with the Judge Advocate 
Generals. I think that was on the 28th of July.
    I am informed that the last e-mail exchange was around the 
9th of August, and Admiral MacDonald testified when we got the 
no kidding draft that you have, which was a few days ago, and 
the draft that I looked at last night was the draft that I knew 
that you were going to have, because I wanted to be 100 percent 
certain that I was looking at exactly the same thing that you 
all had. I will say that, in my judgment, many of the concerns 
that we had were included in the Justice Department draft.
    I need to say that----
    Mr. Buyer. In their opening draft? Or the draft subsequent 
to the working group?
    General Dunlap. Subsequent to the working group, sir.
    Admiral MacDonald. I would agree with that, the draft 
subsequent to the working group.
    Mr. Buyer. All right. What role did the General Counsel in 
DOD and with regard to the services play in this process?
    Admiral MacDonald. The DOD General Counsel put together the 
DOD portion of the working group that went over to Justice 
Department over that three- or four-day period to work with Mr. 
Bradbury's attorneys on that, the draft that eventually came 
out of the working group.
    Mr. Buyer. Okay. Mr. Saxton, can I have some latitude, if I 
may, please?
    Colonel Reed----
    Colonel Reed. Yes, sir.
    Mr. Buyer [continuing]. Earlier you said--with regard to 
classified evidence, you said, quote, in my opinion, classified 
information is okay. Is that your personal opinion or is that 
the opinion of that reflecting the chairman?
    Colonel Reed. The chairman and I have discussed it. He is 
as comfortable with the draft written as I am.
    Mr. Buyer. So when you say ``my opinion,'' is it your 
personal opinion or does it reflect the opinion of the 
chairman?
    Colonel Reed. I can only----
    Mr. Buyer. Are you here to reflect the opinion of the 
chairman?
    Colonel Reed. No, sir. I am here as his legal counsel. 
Obviously, I cannot speak for the chairman. Sir, you will have 
to ask the chairman that question. But in my discussions with 
him, we have discussed this, we have discussed that particular 
provision, and in those discussions I believe he is comfortable 
with that provision.
    Mr. Buyer. All right. With regard to the habeas corpus 
petitions that are pending presently, if we adopt this process, 
what impact does that have on the present pending cases?
    Mr. Bradbury. It would extinguish the habeas cases and it 
would limit the review as the Detainee Treatment Act provided 
for to appeals from Combatant Status Review Tribunal 
determinations of enemy combatant status and final judgments of 
the military commissions. Other than that, all the habeas cases 
would be extinguished by this legislation.
    Mr. Buyer. Major General Black, if we were to adopt your 
position, the position also endorsed by some of the other JAGs, 
with regard to the sole evidence to convict, defendant cannot 
confront the evidence that it may violate a fundamental or 
indispensable judicial guarantee; therefore, the case should 
not proceed. Then if we are not--if we have got an individual 
we know is one of the conspirators of 9/11, but we have got 
some particular sole evidence that the Administration believes 
should--they don't want to show them that evidence, we then 
hold that individual for as long as we are involved in the war 
on terror?
    General Black. Yes, sir.
    Mr. Buyer. All right. With regard to discovery and 
following the rules of discovery, so the American taxpayers are 
going to be paying for all of this discovery by the defense, 
would they not? The American taxpayers are going to be paying 
for the defense costs of the September 11 terrorists.
    General Black. Roger.
    Mr. Buyer. They are, aren't they? All the JAGs are nodding 
their heads in the affirmative.
    General Dunlap. It is possible that some civilians--of 
funds to fund the defense, and there are many groups out there 
that I believe will want to defend----
    Mr. Buyer. I just want to make sure. You are absolutely 
correct. They can hire their civilian counsel. They can do 
their own defense. But if they cannot hire or if they do not 
have the means, the American taxpayers are going to be paying 
for that defense just like indigent counsel, right?
    General Dunlap. Yes, sir.
    Mr. Bradbury. I would say, Congressman, that the military 
defense counsel are already going to be employees of the 
Federal Government whose salaries are paid. But, yes, you are 
right. We would be providing defense counsel, appointed 
military defense counsel, to these individuals, but we would 
not be paying for their private counsel.
    Mr. Buyer. Well, I just want the world to know and 
understand, as we are putting together a process that gives 
judicial guarantees, that the American taxpayer is going to be 
providing not only the counsel but also the discovery process 
here.
    With regard to the United Kingdom and Spain, do we know how 
they are treating these individuals who are also al Qaeda and 
committed terror acts against their own people? Mr. Bradbury, 
do we know what they are doing and how they treat them and the 
status by which we give what we call these unlawful combatants?
    Mr. Bradbury. Well, we do know how they treat criminal 
defendants who have been taken up under their new terrorism 
laws, for example, in the U.K. But with respect to those who 
are not charged, that are just held perhaps by intelligence 
services, I have no personal knowledge of that.
    Mr. Buyer. All right. The reason I ask that question--and I 
appreciate the latitude of the Chair--is that status is 
everything here. So I agree with the JAGs, and I am not going 
to incorporate my feelings with some of the feelings of my 
colleagues that are upset here over a delay of time or whether 
victims of September 11 are finding their justice because I am 
just as shocked at the Supreme Court. I would be in the three 
in the Supreme Court, applying Common Article 3 of the War 
Crimes Act to this.
    It blows my mind. I mean, I got it wrong at the JAG school. 
I just didn't get that. So now I look at this and go, what 
happened? How are we going to treat saboteurs now? Or status is 
going to be everything now. If we are going to create this 
process, that is that access. So now that article 5 hearing is 
pretty doggone important on where we go from here and who gets 
access into this new court of jurisdiction. This is really 
interesting.
    Mr. Saxton. Mr. Buyer, unfortunately, some----
    Mr. Buyer. I understand.
    Mr. Saxton. The Subcommittee on Intelligence of the 
Homeland Security Committee is waiting for this room and have 
been since 1. So under other circumstances----
    Mr. Buyer. Can I look through my notes real quick?
    Mr. Saxton. Real quick.
    Mr. Buyer. All right. Hold on. All right, I think I have 
got enough for now. I am going to see you afterwards.
    Mr. Saxton. We thank you for your participation and your 
patience; and if you would be kind enough to make yourself 
available to this committee as we work through this process, we 
would appreciate it.
    Mr. Buyer. Thank you. Look forward to working with the 
gentlemen of the committee.
    Mr. Saxton. Thank you.
    I asked a short question earlier today regarding how this 
process would treat members of other terrorist organizations 
other than al Qaeda who have engaged in hostilities against the 
United States; and I wonder, Mr. Bradbury, if you would perhaps 
put something in writing to us that would help us clarify this 
in our minds.
    It seems like there are so many--it seems to me as a 
nonlawyer that there are so many sets of circumstances that we 
will eventually have to make determinations on, prior acts 
prior to the time that we were engaged in hostilities with al 
Qaeda, with the bombings in Africa, with the bombing of the 
Cole, with the Saudi Arabian activities carried out by al Qaeda 
or other groups, and of course the question of other groups 
such as Hezbollah. All of these are separate, different kinds 
of circumstances, and we need to understand----
    Mr. Bradbury. Yeah.
    Mr. Saxton [continuing]. The circumstances, the language 
and the law that we are going to put together to deal with 
these types of situations.
    Mr. Bradbury. Yes.
    Mr. Saxton. I am not looking to prolong the hearing today 
further, but if you could just put something in writing.
    Mr. Bradbury. I would be happy to do that. The legislation 
is intended to be flexible for future circumstances, and it is 
intended to apply to at-war crimes committed by al Qaeda 
members prior to 9/11.
    Mr. Saxton. Good. And how long do you think it would be 
before we might expect to receive something from you on that? 
Because we need to proceed next week with----
    Mr. Bradbury. We will try to get you something next week.
    Mr. Saxton. Thank you.
    Thank you all for your participation. We appreciate your 
patience and participation as well, and the committee is 
adjourned.
    Mr. Bradbury. Thank you.
    [Whereupon, at 1:48 p.m., the committee was adjourned.]



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