[Senate Hearing 109-471]
[From the U.S. Government Publishing Office]
S. Hrg. 109-471
REVIEW OF DEPARTMENT OF DEFENSE DETENTION AND INTERROGATION POLICY AND
OPERATIONS IN THE GLOBAL WAR ON TERRORISM
=======================================================================
HEARINGS
before the
COMMITTEE ON ARMED SERVICES
and
SUBCOMMITTEE ON PERSONNEL
of the
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MARCH 10; JULY 13, 14, 2005
__________
Printed for the use of the Committee on Armed Services
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COMMITTEE ON ARMED SERVICES
JOHN WARNER, Virginia, Chairman
JOHN McCAIN, Arizona CARL LEVIN, Michigan
JAMES M. INHOFE, Oklahoma EDWARD M. KENNEDY, Massachusetts
PAT ROBERTS, Kansas ROBERT C. BYRD, West Virginia
JEFF SESSIONS, Alabama JOSEPH I. LIEBERMAN, Connecticut
SUSAN M. COLLINS, Maine JACK REED, Rhode Island
JOHN ENSIGN, Nevada DANIEL K. AKAKA, Hawaii
JAMES M. TALENT, Missouri BILL NELSON, Florida
SAXBY CHAMBLISS, Georgia E. BENJAMIN NELSON, Nebraska
LINDSEY O. GRAHAM, South Carolina MARK DAYTON, Minnesota
ELIZABETH DOLE, North Carolina EVAN BAYH, Indiana
JOHN CORNYN, Texas HILLARY RODHAM CLINTON, New York
JOHN THUNE, South Dakota
Judith A. Ansley, Staff Director
Richard D. DeBobes, Democratic Staff Director
______
Subcommittee on Personnel
LINDSEY O. GRAHAM, South Carolina, Chairman
JOHN McCAIN, Arizona E. BENAJAMIN NELSON, Nebraska
SUSAN M. COLLINS, Maine EDWARD M. KENNEDY, Massachusetts
SAXBY CHAMBLISS, Georgia JOSEPH I. LIEBERMAN, Connecticut
ELIZABETH DOLE, North Carolina DANIEL K. AKAKA, Hawaii
(ii)
?
C O N T E N T S
__________
CHRONOLOGICAL LIST OF WITNESSES
The Review of Department of Defense Detention Operations and Detainee
Interrogation Techniques
march 10, 2005
Page
Church, VADM Albert T. III, USN, Director of the Navy Staff...... 7
The Investigation into Federal Bureau of Investigation Allegations of
Detainee Abuse at the Guantanamo Bay, Cuba, Detention Facility
july 13, 2005
Craddock, GEN Bantz J., USA, Commander, U.S. Southern Command;
Accompanied by Lt. Gen. Randall M. Schmidt, USAF, Senior
Investigating Officer; and BG John T. Furlow, USA,
Investigating Officer.......................................... 79
Military Justice and Detention Policy in the Global War on Terrorism
july 14, 2005
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 163
Dell'Orto, Daniel J., Principal Deputy General Counsel,
Department of Defense.......................................... 169
McGarrah, RADM James M., CEC, USN, Director, Office of the
Administrative Review of Detention of Enemy Combatants......... 175
Hemingway, Brig. Gen. Thomas L., USAF, Legal Advisor to the
Appointing Authority for the Office of Military Commissions.... 180
Barr, Hon. William P., Former Attorney General of the United
States......................................................... 203
Saltzburg, Professor Stephen A., Wallace and Beverley Woodbury
University Professor of Law, The George Washington University
Law School..................................................... 215
Hutson, John D., President and Dean, Franklin Pierce Law Center.. 230
(iii)
THE REVIEW OF DEPARTMENT OF DEFENSE DETENTION OPERATIONS AND DETAINEE
INTERROGATION TECHNIQUES
----------
THURSDAY, MARCH 10, 2005
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:37 a.m. in room
SH-216, Hart Senate Office Building, Senator John Warner
(chairman) presiding.
Committee members present: Senators Warner, McCain, Inhofe,
Collins, Talent, Dole, Cornyn, Thune, Levin, Kennedy,
Lieberman, and Reed.
Committee staff members present: Judith A. Ansley, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Charles W. Alsup,
professional staff member; Regina A. Dubey, research assistant;
Gregory T. Kiley, professional staff member; Lynn F. Rusten,
professional staff member; Scott W. Stucky, general counsel;
Diana G. Tabler, professional staff member; and Richard F.
Walsh, counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Gabriella Eisen, research assistant;
Bridget W. Higgins, research assistant; Gerald J. Leeling,
minority counsel; Peter K. Levine, minority counsel; and
William G.P. Monahan, minority counsel.
Staff assistants present: Alison E. Brill, Catherine E.
Sendak, and Nicholas W. West.
Committee members' assistants present: Cord Sterling,
assistant to Senator Warner; Christopher J. Paul, assistant to
Senator McCain; John A. Bonsell, assistant to Senator Inhofe;
Mackenzie M. Eaglen, assistant to Senator Collins; Russell J.
Thomasson, assistant to Senator Cornyn; Bob Taylor, assistant
to Senator Thune; Mieke Y. Eoyang, assistant to Senator
Kennedy; Erik Raven, assistant to Senator Byrd; Frederick M.
Downey, assistant to Senator Lieberman; Darcia Tokioka,
assistant to Senator Akaka; and William K. Sutey, assistant to
Senator Bill Nelson.
OPENING STATEMENT OF SENATOR JAMES M. INHOFE
Senator Inhofe [presiding]. The meeting, the hearing, will
come to order. I have just been informed that Senator Warner is
stuck in traffic. So, Senator Levin, I will act like Senator
Warner and start this off. The statement that I will make is
not my statement; it is Senator Warner's statement.
The committee meets today to receive testimony on the
Department of Defense (DOD) review of the detention operations
and detainee interrogation techniques, commonly referred to as
the Church Report. We welcome our witness, Vice Admiral Albert
T. Church III, United States Navy, currently Director of the
Navy Staff.
I note that when Admiral Church started work on this review
he was the Inspector General (IG) of the Navy. We thank Admiral
Church and all members of his team for the excellent work they
have done on this issue.
On May 25, 2004, Secretary of Defense (SECDEF) Rumsfeld
formally directed Admiral Church to review all DOD detention
procedures and defense interrogation techniques that were being
used in the global war on terrorism. I quote from Secretary
Rumsfeld's directive: ``Specifically, you will ensure that all
areas of concern to the Department of Defense regarding
detention operations, including interrogation techniques, are
being addressed adequately and expeditiously. You will report
to me any gaps or seams among those reviews and
investigations.''
This is the tenth major senior level review of detainee
operations and allegations of detainee abuse that has been
completed, nine by various elements of the Department and one
by an independent panel. Since the abuses at Abu Ghraib were
discovered in January 2004, one additional senior level
investigation has recently been initiated by the Department to
review Federal Bureau of Investigations (FBI) allegations of
abuse at the detention facility of Guantanamo Bay (Gitmo) in
2002. These allegations were brought to the attention of the
DOD in December of last year.
This committee has been very responsive in its oversight.
This is the eighth open hearing that we have conducted on these
issues. In addition, we have had a number of classified
briefings. The Church Report was initiated to provide a
comprehensive evaluation of DOD detention operations and the
role interrogation procedures may or may not have played in the
abusive treatment of detainees.
Admiral Church has conducted what appears to be a thorough
review, analyzing all previous reports and conducting over
8,900 new interviews, including uniformed personnel of all
ranks and levels of command and senior policy officials. I now
cite two conclusions of the Church Report, and I am quoting
now, ``Number one, we found no link between approved
interrogation techniques and detainee abuse. Number two, we
note therefore that our conclusion is consistent with the
findings of the independent panel''--that is, the Schlesinger
panel--``which in its August 2004 report determined that''--and
quoting from that report--`No approved procedures called for or
allowed the kind of abuse that in fact occurred.' There is no
evidence of that policy of abuse promulgated by senior
officials or military authorities.''
In my judgment, these findings are consistent with the
findings of all previous reports. According to the Church
Report, the 70 incidents of substantiated abuse were quoting
from the Church Report, ``perpetrated by a variety of Active-
Duty, Reserve, and National Guard personnel from three
different Services, on different dates, and in different
locations throughout Afghanistan and Iraq, as well as a small
number of cases at Gitmo.''
Admiral Church concludes that: ``There is not a single
overarching reason for abuse, but that the stressful combat
situation, particularly at the point of capture,'' and, as
Admiral Church characterized it, ``a breakdown of good order
and discipline in some units could account for some incidents
of abuse.''
This does not excuse the abuses that did occur, but I
believe it is important to put this discussion in context. As
we meet this morning, a large number of trials by court martial
have been completed and sentences have been rendered. In a
great many of these cases, the military defendants pled guilty.
Additional criminal procedures are ongoing. We have shown the
world that we are a Nation of laws and that we will not
tolerate abusive, inhumane behavior by members of our Armed
Forces, we will investigate wrongdoing and hold accountable
those responsible for misconduct.
To date over a million U.S. service men and women have
served in Iraq and Afghanistan and have served with
distinction. As of the date of this report, 36 service
personnel have been convicted of criminal misconduct and a few
more trials are pending. As Admiral Church noted, ``The vast
majority of detainees held by U.S. forces during the global war
on terrorism have been treated humanely.''
The Church Report found that no policy promulgated by the
Department either advocates or encourages abusive or inhumane
treatment of detainees. The report also found that approved
interrogation policies did not lead to illegal or abusive
interrogation techniques being used. The Church Report candidly
pointed out that, ``dissemination of interrogation policy in
Iraq and Afghanistan was generally poor and interrogators fell
back on their training and experience, often relying on a broad
interpretation of Army Field Manual (FM) 34-52.''
The Church Report continues, ``While these problems of
policy dissemination and compliance were certainly cause for
concern, we found that they did not lead to the employment of
illegal or abusive interrogation techniques.'' Admiral Church
found that ``interrogators knew that abusive behavior was
prohibited. There are very few allegations of abuse by trained
interrogators in established detention centers. Many of the
allegations of interrogation-related abuse originated at the
point of capture, in the immediate aftermath of the heat of
battle.''
In the period of time since these allegations of abuse
first surfaced, the DOD has been steadfast in examining its
procedures and implementing constructive changes as
appropriate. The Department of the Army in particular, which
has principal responsibility for the conduct of detention and
interrogation operations, has updated training procedures and
doctrine to ensure the proper treatment of detainees and the
effective conduct of interrogators. These steps taken by the
DOD and the military Services, as well as the continuing
reviews of issues of individual accountability throughout the
chain of command, will be the subject of a future hearing by
this committee.
The members of the U.S. Armed Forces have been tarnished by
these isolated incidents of abuse by a few within their ranks,
but they have shown their typical honor and resilience by the
manner in which they have responded. We must remember that the
vast majority of our brave men and women in uniform are
performing remarkable tasks on a daily basis in austere,
stressful environments, and in some cases making the ultimate
sacrifice of life and limb to win the war on terror.
We honor their service and that of their families. Our
efforts in gathering this information and openly discussing it
with the American people and with the world are intended to
strengthen our Armed Forces.
I thank our witness and his team for this report and I
thank you for coming, and continuing to serve our Nation,
Admiral Church.
Senator Levin.
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. Thank you, and let me also welcome Admiral
Church. Today we hear from Admiral Church on his investigation
into detention operations and technologies in Iraq,
Afghanistan, and Gitmo. Vice Admiral Church's investigative
team has done extensive work, collecting hundreds of statements
and reviewing thousands of documents. I would like to thank
you, Admiral, and your team for that service.
The Church Report is not and does not purport to be a
comprehensive report. It does not fill many of the significant
gaps left by earlier investigations regarding the nature and
causes of detainee abuse in Iraq, Afghanistan, Gitmo, and
elsewhere. One gap in the investigations to date is what was
the role of ``other government agencies,'' primarily the
Central Intelligence Agency (CIA), in detainee abuse. General
Fay's report found that CIA practices, ``led to a loss of
accountability, abuse, and an unhealthy mystique that further
poisoned the atmosphere at Abu Ghraib.''
However, General Fay was unable to fully investigate the
CIA's role in detainee abuse because the CIA denied his request
for documents. Both the Taguba and Fay reports highlight the
problem of unaccounted for CIA ghost detainees. The Schlesinger
Panel was also aware of this issue, but had limited access to
information on the CIA's role in detention operations. Vice
Admiral Church's report states his team had limited cooperation
from the CIA. The report also makes clear he was not tasked to
investigate the existence of or policies in effect for
detention facilities controlled by the CIA, rather than by the
DOD.
A second major gap in the DOD-led investigations which the
Church Report fails to address is the issue of senior
leadership responsibility for creating an environment which
either contributed to abusive behavior, or which condoned or
tolerated, or appeared to condone or tolerate such behavior.
The Schlesinger Panel Report found that abuses were widespread
and that there was both ``institutional and personal
responsibility at higher levels.'' Matters of personal
accountability were explicitly outside of the scope of the
Schlesinger Panel's tasking from the DOD. So there has been no
assessment of accountability of any senior officials, either
within or outside of the DOD, for policies that may have
contributed to abuses of prisoners.
Numerous other gaps remain unaddressed by Admiral Church's
report. For example, the Army IG in his assessment of detention
operations, doctrine, and training looked only at Iraq and
Afghanistan, not Gitmo. The Formica Report looked into
allegations of abuse by Special Operations Forces only in Iraq,
not Afghanistan or elsewhere. As a result, significant abuse
allegations have fallen between the cracks.
In addition, previous reports containing conflicting
conclusions make it difficult to get a clear picture of the
nature and causes of the abuses. These conflicting findings are
not addressed in the Church Report. For example, reports are in
conflict as to whether detainee abuse was systemic. General
Taguba found ``systemic and illegal abuse of detainees'' by
military police at Abu Ghraib. General Fay in his report found
``systemic problems and abuses also contributed to the volatile
environment in which abuses occurred,'' and included two dozen
findings relating to systemic failures, including doctrine and
policy concerns, leadership and command and control issues,
resources, and training issues.
On the other hand, the Army IG reporting in July 2004 was
``unable to identify system failures that resulted in incidents
of abuse.'' Vice Admiral Church's report notes that, despite
that statement of the IG of the Army, that the Army IG at
another point ``recounted `numerous system failures' in his
detailed findings which contributed to the detainee abuse.'' I
hope that the Admiral will clarify for this committee whether
he agrees with General Taguba and General Fay that systemic
problems contributed to detainee abuse.
Earlier reports found that policies and guidance at least
indirectly contributed to abuses. The Schlesinger Panel Report
says that interrogation policies were ``inadequate or deficient
at three levels: DOD, Central Command (CENTCOM) Combined Joint
Task Force (CJTF), and Abu Ghraib Prison.'' That report, the
Schlesinger Report, adds that changes in DOD interrogation
policies approved by the SECDEF contributed to confusion in the
field about what methods were authorized.
Perhaps most significantly, the Schlesinger Panel found
that ``both institutional and personal responsibility at higher
levels,'' for widespread abuses, not just at lower levels.
Similarly, General Fay found that multiple ``national policies
and DOD directives'' were inconsistent with Army doctrine and
resulted in interrogation policies that contributed to the
confusion at Abu Ghraib.
But the Church Report concludes that approved interrogation
techniques were not a ``causal factor'' of detainee abuse: they
were simply ``missed opportunities'' in the process of
developing policies on detainee operations. There is not even a
determination that we can find in the Church Report as to
whether or not detainee abuse would have been reduced or
avoided had those missed opportunities been acted upon.
In addition, the Church Report's assessment that there were
simply ``missed opportunities'' is difficult to reconcile with
the facts set forth in the report itself. Simply concluding
that there were ``missed opportunities'' does not adequately
explain why Secretary Rumsfeld approved aggressive
interrogation techniques for use at Gitmo in December 2002
including stress positions, 20-hour interrogations, nudity, and
the use of dogs in interrogations. He approved those in the
face of serious concerns about such techniques which had been
forwarded by military lawyers from all four Services to the
Joint Staff.
Simply saying that there were ``missed opportunities'' does
not explain why the Office of the Secretary of Defense (OSD)
failed to promulgate an interrogation policy for Afghanistan
consistent with the amended policy approved for Gitmo in April
2003, even though, according to the Vice Chairman of the Joint
Chiefs of Staff, General Peter Pace, the Chairman of the Joint
Chiefs sent up a recommendation that the same interrogation
guidelines apply in both places.
The bland label of ``missed opportunities'' does not
explain the absence of policies governing the conduct of CIA
interrogators at DOD facilities, which contributed to abuses at
Abu Ghraib and elsewhere. Those are all failures of command at
high levels.
It is also difficult to reconcile the notion of ``missed
opportunities'' with policies that have come to light since
Admiral Church apparently ended his investigation in September
2004. A few months ago, the Justice Department (DOJ) confirmed
the existence of a memo relating to the authority to use
specified interrogation techniques, a memo produced by their
Office of Legal Counsel (OLC) concurrently with the August 1,
2002, ``Torture'' memo that was so flawed that the
administration disavowed it in mid-2004. Just in the past few
months, we have learned of FBI agents' strong objections to
aggressive and coercive interrogation techniques at Gitmo,
which FBI agents in one e-mail labeled ``torture'' and in a
number of e-mails deemed so disturbing that agents had guidance
to ``step out of the picture'' when the military were carrying
out interrogations. The Gitmo commanders defended these methods
by saying that the DOD has their ``marching orders'' from the
SECDEF.
Nor does the Church Report explain recent revelations that
the administration reportedly authorized the CIA to engage in
rendition, the handing over of detainees to foreign countries,
including ones with a track record of torture.
This failure of accountability of senior leaders sends the
wrong signal to our troops and to the American people. It harms
the United States' standing as a Nation of laws and it
undermines the high standards of our Armed Forces. It places
our brave and honorable military men and women in jeopardy when
they become prisoners.
In the end, I conclude that the DOD is not able to assess
accountability at senior levels, particularly when
investigators are in the chain of command of the officials
whose policies and actions they are investigating. Only an
independent review can fully and objectively assess both the
institutional and personal accountability for the abuse of
detainees.
I thank you, Mr. Chairman.
STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner [presiding]. Thank you, Senator.
I apologize for my tardiness. Senator Inhofe, I appreciate
your taking my statement.
As Senator Inhofe said on my behalf, this committee will
have at least one more hearing on this subject on the issue of
accountability. As I listened to your final comments, I say
most respectfully to my colleague there has not been a finality
in terms of the assessment of accountability of either senior
policy people or senior officers. There remains open, as you
are probably aware, the Army review of its senior officers. So
more work has to be done by this committee.
We welcome you, Admiral, and thank you very much for
undertaking this very prodigious and challenging effort.
STATEMENT OF VADM ALBERT T. CHURCH III, USN, DIRECTOR OF THE
NAVY STAFF
Admiral Church. Thank you, Senator Warner, Senator Levin,
and thank you to the members of the committee for the
opportunity to be here today.
Chairman Warner. I want you to draw that mike up like a
bullhorn and work on it.
Admiral Church. Yes, sir.
Chairman Warner. There we go, straight on.
Admiral Church. I hope it is on. There we go.
Chairman Warner. It is on.
Admiral Church. I have a short opening statement, sir, if I
may.
Approximately 10 months ago, the Secretary of Defense
tasked me with some very specific things that he wanted done.
The first of that was to look at all the interrogation
techniques that had ever been considered, authorized, employed,
or prohibited in any theater at any time. He asked me to
specifically look at the issue of migration, had the techniques
migrated, where and when. He specifically tasked me to analyze
and review DOD support to or participation in the interrogation
activities of non-DOD activities.
He asked me to work in direct support of the independent
panel chaired by the Honorable James Schlesinger, which we did.
I would add that the data that they had in their report came
from our group and we supported their findings and reviewed
their work as well.
Implicit in that tasking was to determine whether and to
what extent the nature and migration of all these interrogation
techniques directly or indirectly resulted in detainee abuse
that we have all become familiar with. As has been mentioned
earlier, he asked me to look at gaps and seams. We did that. We
expanded our tasking to look at International Committee of the
Red Cross (ICRC) issues, medical issues, and contract
interrogators, as an example.
I believe my investigation was thorough and exhaustive. We
conducted over 800 interviews, the majority of which resulted
in sworn statements. We took interviews or written statements
from senior civilian and military leaders in the Pentagon. We
reviewed thousands of pages of documents based on data calls
from the Pentagon, from the combatant commanders. We did
leverage all the other ongoing investigations so as not to re-
investigate that which had already been investigated. We looked
very carefully at the 70 completed cases of abuse, the criminal
cases, to see if there is anything in those that related to
interrogation or interrogation techniques.
Finally, I would like to give you, as has been mentioned
earlier today, a backdrop to some of my findings. It was clear
to us during the investigation that if we are going to win the
global war on terror we have to have intelligence, and embodied
in that is we need human intelligence. As has been mentioned
also, the overwhelming majority of our service members have
served honorably under very difficult and challenging
conditions. The vast majority of detainees have been treated
humanely and appropriately, and when that was not the case that
has been investigated.
My key findings: that clearly there was no policy, written
or otherwise, at any level that directed or condoned torture or
abuse; there was no link between the authorized interrogation
techniques and the abuses that in fact occurred. Nevertheless,
we did identify problems with dissemination, development,
migration of the interrogation techniques both in Afghanistan
and Iraq, and we documented another problem, which is a lack of
field-level guidance for the interaction of DOD and other
government agency personnel.
Also previously mentioned, with the benefit of hindsight we
saw several missed opportunities, two missed opportunities. The
lessons of prior unconventional conflicts were never
specifically communicated to our troops as a means of lessons
learned; and no guidance or interrogation techniques were
promulgated for Afghanistan or Iraq either to CENTCOM or by
CENTCOM.
I would like to make several quick points on the detainee
abuse. Of the 70 closed cases, 6 were deaths, 26 were serious,
and 38 were minor abuse cases, as we categorize them.
Approximately one-third of these cases occurred at the point of
capture, where emotions run very high. The majority of these
cases, even those considered interrogation-related, as we find
them consisted of simple assaults--punching, kicking, and
slapping detainees. We looked for any discernible pattern of
abuse and we were unable to find it. It varied by unit, Active
Duty, Guard, Active Reserve, Guard, in different theaters. As
the independent panel stated: ``No approved procedures called
for or allowed the kinds of abuses that in fact occurred.''
Finally, a quick word about the FBI documents. We were
aware of the 14 July 2004 memo that highlighted three
instances. That was sent to us by the Army. Two of those
incidents had previously been investigated. The Army Criminal
Investigation Division (CID) began an investigation on the
third one. Last Friday, I had a meeting with the current Naval
IG, who is going over the Freedom of Information Act (FOIA)
requests, and General Furlow from Southern Command (SOUTHCOM),
who is doing an investigation of the specific incidents, and I
would be happy to answer questions on the progress of those two
ongoing investigations later.
That concludes my comments, sir, and I look forward to your
questions.
Chairman Warner. Thank you very much, Admiral.
We will proceed to have a 6-minute initial questioning by
members.
Admiral, let us get directly to the evidence that the
American people and indeed the world saw by virtue of these
pictures, tragic pictures. I mean, incomprehensible almost to
say a person like me, who has had the privilege of a half
century of association with the men and women of the Armed
Forces.
However, apart from those pictures you have described other
types of infractions which do not have a pictorial record.
Largely you learned of them through testimony. I think it is
important that we lay before the public the full range of
tortures with some specificity. The pictures were explicit,
tragic. Were there other types of incidents which you felt
resulted in bringing people to trial which we do not have in
mind fully as to what occurred?
Admiral Church. The work that we did, Senator, everything
that is alleged is being investigated, if that is the question.
Chairman Warner. I am not suggesting it is not being
investigated. But I think we have to have a full understanding
of the types of wrongdoings that were perpetrated. The pictures
captured certainly what went on in that prison, but there are
other incidents, for instance at the point of detention in the
heat of battle, and often there is extenuating circumstances in
the heat of battle for those who are making that apprehension.
In other words, I want to hear in the record as best we can
a description of other things that were the basis for these
trials, that we have not seen by virtue of those pictures.
Admiral Church. It is the full range, Senator. We have six
deaths of those who were detainees. There are a number of
detainee deaths. Most of them were by natural causes. We looked
at every single detainee death. There were six of those.
Chairman Warner. You say by natural causes. The deaths
resulted as a result--excuse me--resulted because of blows to
the system, I suppose?
Admiral Church. No, sir. Natural causes were--we looked at
all the deaths, all the detainee deaths, to ensure that
anything that looked problematic was further investigated.
There are 6 of the 70 abuse cases that are closed that involved
detainee deaths, and I am trying to answer your question on the
range of problems. That was the far end.
To the low end, you could probably go to Gitmo, where there
were incidents of slapping or what we call minor abuse cases.
There were a couple of sexual assaults that were in that 70 at
the high end, and there was the range all the way in between.
Chairman Warner. The ICRC performed and has throughout
contemporary history, I mean going back many years, a very
valuable service of trying to monitor the detainee situations
worldwide. They were active participants in this case, and in a
closed session of this hearing this morning which will follow
the open session we will ask you to give us further details of
their involvement.
But on the whole, do you feel their involvement was
constructive and did it provide reasonable early warning to our
chains of command that reviewed these reports?
Admiral Church. I do, Senator. I think it was very
positive. I think the reactions to the ICRC reports were in
general very good, but in a couple cases the reaction was not
as swift or comprehensive as it could have been, and Abu Ghraib
is one example.
Chairman Warner. The responsibility of individual leaders.
In your report you talk about the deterioration of good order
and discipline in some units and the related failure of unit-
level leadership to react to warning signs and stressful
conditions and how this may have contributed to some incidents
of abuse.
To what do you attribute this breakdown of good order and
discipline in the United States military? To what levels did
these failures of leadership extend in your judgment? What
recommendations do you make to prevent or reduce such
breakdowns of good order and discipline in the future, because
in a subsequent hearing of this committee--I mean, we will
eventually get into exactly what corrective measures the DOD
and other agencies and departments to some extent have taken in
that breakdown. But they will draw on your report. Much has
been done already, but I am sure this report will further
refine the steps that have been done.
So let us talk about your professional judgment. You are an
officer of extraordinary capabilities and distinction in your
own career, and to what do you attribute this breakdown of good
order and discipline?
Admiral Church. Let me answer in two parts, Senator. Having
come to the conclusion, having looked at the 70 closed cases,
that the interrogation techniques were not a causal factor in
the abuse that happened, I felt it was important to try to
offer an opinion as to, if that was not--and this is my best
military judgment, having looked at this for 9 months--what did
cause the abuse?
As I noted, a third of these happened at the point of
capture, which is where emotions run high. Then after that it
became----
Chairman Warner. Now let us make it clear to those
following this hearing. At the point of capture, you mean in
the field?
Admiral Church. In the field.
Chairman Warner. Where there is active combat in many
instances either going on or there are combat conditions, an
individual is apprehended.
Admiral Church. Yes, sir.
Chairman Warner. As you said, emotions, and not only that,
time is measured in microseconds in trying to make a capture
and then get back and protect yourselves. So go ahead.
Admiral Church. That is exactly right, Senator. Of course,
that is--once a detainee is captured, the rules change, and
people have to be aware of that. That is where a third of this
happened.
I said about 20 of the incidents involved--were
interrogation-related, and I used a very expansive definition
of that. Anything that involved a military interrogator (MI),
if an MI was in the area, if it was a military police (MP),
even a debriefing at point of capture, I called that
interrogation-related, frankly so I would not be challenged on
not including that. Very little of this involved interrogation.
So you are left really with looking at each individual case
and saying, what happened? The events of Abu Ghraib are a
shining example where you ask the question, where was the
leadership? Not only the noncommissioned officers (NCOs), but
the mid-grade officers, who--I use the analogy of a ship
because that is my background. You can get an illegal order and
it does not matter; you are still responsible for the safety of
that ship. To me, that is where the breakdown was, and the
remedies are--we could talk about that for a long time. It is
accountability at that level.
Chairman Warner. Thank you, Admiral.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
Admiral, according to your report, in response to a Joint
Chiefs of Staff (JCS) request for comments on the request from
Gitmo commanders in November 2002 for authorization to use more
aggressive interrogation techniques, military service lawyers
expressed ``serious reservations'' about approving the proposed
interrogation techniques without further legal and policy
review. What was the nature of their serious reservations?
Admiral Church. They felt that the techniques were too
aggressive, that they needed additional legal review if they
were in fact lawful.
Senator Levin. Were those concerns brought to the attention
of Secretary Rumsfeld prior to his December 2, 2002, approval
of additional aggressive interrogation techniques?
Admiral Church. Nobody was able to succinctly answer that
question, because I think it was overcome by events. That was
my opinion.
Senator Levin. So you were not able to determine whether--
--
Admiral Church. With absolute certainty, no, sir.
Senator Levin. Okay. Now, there was a DOD working group on
interrogation techniques which was initiated in January 2003.
That working group ultimately recommended interrogation
techniques for use against enemy combatants and most of the
recommendations were adopted. However, as you note in the body
of your report, you show that the working group, in which
military lawyers were participating, was stopped from
developing its own legal analysis and instead was required to
accept the legal analysis contained in a memorandum from the
DOJ OLC, a memorandum with which the working group strongly
disagreed.
According to your report, that memo, entitled ``Military
Interrogation of Alien Unlawful Combatants,'' was prepared by
Deputy Assistant Attorney General John Yu for DOD General
Counsel Haynes, and that memo had a date of March 14, 2003.
This memo was presented, as your report indicates, to the
working group as ``controlling authority'' on all legal issues.
I want to refer to the March 14, 2003, memo from now on.
Access of working group members to this memo was apparently
restricted, as you noted, and no notes were permitted. You also
noted that conclusions of that memo are nearly identical to
those of the August 1, 2002, OLC memo which is known as the
torture memo, which the administration disavowed in the middle
of last year. Among other things it concluded that for physical
pain to amount to torture it had to be equivalent to the pain
accompanying ``organ failure, impairment of bodily functions,
or even death.''
So basically that working group in the DOD was told they
had to follow this March 14 memo from Deputy Assistant Attorney
General Yu to Mr. Haynes.
My question is, did you have access to that March memo?
Admiral Church. Yes, sir, we did.
Senator Levin. Do you have a copy of it?
Admiral Church. No, sir, we did not get a copy. We went and
read it and took notes.
Senator Levin. Were you allowed to take a copy of it?
Admiral Church. No, sir, we did not take a copy.
Senator Levin. So even in your classified report there is
no copy of that memo, is that correct?
Admiral Church. That is correct, sir.
Senator Levin. Has that memo been superseded, like the
``torture'' memo on which it was based? Do you know?
Admiral Church. I would have to get back to you, sir. I
cannot say for certain.
[The information referred to follows:]
The March 14, 2003, Office of Legal Counsel (OLC) memorandum, which
drew upon the August 2002 OLC memorandum, has not been explicitly
superseded. However, the current legal guidance applicable to the
Department of Defense is contained in the December 2004 OLC memorandum,
which superseded the August 2002 memorandum.
Senator Levin. Now, General Pace stated that on May 15,
2003, the Chairman of the Joint Chiefs sent up a memo
recommending that the same interrogation guidelines be issued
to CENTCOM as existed for Gitmo. This request from the Chairman
and recommendation was sent to the Office of the Secretary of
Defense (OSD). Do you know whether the OSD responded to the
Chairman's May 15, 2003, letter with that recommendation?
Admiral Church. There was no response that I am aware of,
sir.
Senator Levin. Did you find any evidence explaining why the
OSD failed to act on the recommendation?
Admiral Church. Not specifically, sir.
Senator Levin. You made reference to the FBI memos. In
December of last year the FBI released e-mails under a FOIA
request in which FBI agents described the DOD interrogation
techniques in use at Gitmo as torture and stated in their e-
mails the following, this is one FBI agent talking to another:
``When I return to DC, I will bring a copy of the military's
interview plan. You won't believe it.''
Are you familiar with that memo?
Admiral Church. Yes, sir.
Senator Levin. Did you see the plan?
Admiral Church. I believe, if that is the one you are
referring to, I believe I did, yes, sir.
Senator Levin. That plan was described as containing
coercive techniques in the military's interviewing tool kit.
Are you familiar with those coercive techniques?
Admiral Church. I think we are referring to the same
incident, sir.
Senator Levin. Would you agree those were coercive
techniques, the way the FBI described them?
Admiral Church. There were a couple of interrogations that
I would classify as humane but coercive.
Senator Levin. Do you have a copy of those documents that
the FBI referred to in your classified report?
Admiral Church. I believe it is in the backup material,
sir. If not, we will get it.
[The information referred to follows:]
The FBI e-mail refers to a specific interrogation plan approved by
the Secretary of Defense for use with one ``high-value'' detainee who
had resisted interrogation for many months and was believed to possess
actionable intelligence that could be used to prevent attacks against
the United States. The plan is described on pages 115-116 of my report.
Senator Levin. Did you talk to those FBI agents about what
they saw at Guantanamo?
Admiral Church. We talked to folks that were with them. We
talked to members of the Criminal Investigative Task Force
(NCIS). They were all working collaboratively. So I am very
familiar with the incidents that you are talking about.
Senator Levin. You have talked to people who actually
witnessed it in the FBI?
Admiral Church. Not specifically.
Senator Levin. Finally, the Schlesinger Panel found that
abuses were widespread and ``the abuses were not just the
failure of some individuals to follow known standards, and they
are more than the failure of a few leaders to enforce proper
discipline. There is both institutional and personal
responsibility at higher levels.''
Do you agree with that finding of the Schlesinger Panel?
Admiral Church. Yes, sir. I do.
Senator Levin. Have you identified anyone at higher levels
who bears personal responsibility?
Admiral Church. I have to give you a little bit of a longer
answer, Senator. I worked very closely with the Schlesinger
Panel and as we worked together it evolved that the issues of
responsibility needed to be addressed. That was not in my
charter, so it was understood that the Schlesinger Panel were
going to make those calls.
Senator Levin. Thank you.
I thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
I know, Admiral Church, that the scope of your work goes
far beyond Abu Ghraib, but I will confine my questions to just
Abu Ghraib. First of all, I want to thank my colleagues who
have been very nice to me, in spite of the fact that on May 4,
2004, I was the skunk at the family picnic, and the picnic is
still going on and I have not changed my opinion. At that time
I felt and I still feel today that the relationship between the
quality of interrogation and the quality of intelligence and
American lives is there and it is very important.
Let me first of all--it was my understanding then, it is my
understanding now, that the detainees that were held in Abu
Ghraib, and I would specifically say in Cell Blocks 1A and 1B,
were either actively involved in operational planning for
attacks against our Coalition Forces or had already
participated in attacks against our forces, and they were
working on behalf of former Baathists now acting as insurgents
or on behalf of terrorist leaders from outside of Iraq, such as
Zarquawi. Is that your understanding?
Admiral Church. That is my understanding, sir.
Senator Inhofe. I have several questions and they can just
be short answers if you would do that for me, Admiral. First of
all, we have outlined the number of investigations and reports
that have been coming. Some commentators have dismissed several
of the previous reports as whitewash or coverups. Did you come
across anything that would cause you to believe or suspect that
any of these officials who conducted these investigations were
pursuing an agenda other than seeking the truth? Did you find
any evidence of that?
Admiral Church. No, sir, I did not.
Senator Inhofe. Regardless of whether you are talking about
properly approved techniques or improperly approved techniques,
did you ever find anything that sanctioned practices that
showed up in the infamous photos at Abu Ghraib?
Admiral Church. Senator, that was one of the key findings
of the report. None of the instances that we saw in particular
at Abu Ghraib----
Chairman Warner. Can you pull that mike up a little bit.
Admiral Church. Yes, sir; I am sorry.
Chairman Warner. Your voice is just not projecting.
Admiral Church. That was one of the key findings of my
investigation, that none of the abuse cases that have been
highlighted, that we are all familiar with, bear any
resemblance to any policy or interrogation techniques that was
ever considered or authorized.
Senator Inhofe. Yes, I know that, but I think it is a key
point that is worth repeating.
Is it fair to say that, whatever confusion there might have
been, no one could have reasonably believed that what we saw in
those photos was in accordance with approved practices?
Admiral Church. There has been a lot of discussion of the
word ``confusion.'' Regardless of which copy or which operative
standard operating procedure an interrogator was using, none of
the abuses we saw would have been condoned.
Senator Inhofe. All right, sir. Did you ever find any
evidence to support the allegations that commanders preferred
to ``look the other way''--and that is a quote out of some of
the accusations--rather than investigate abuse if they could
get away with it?
Admiral Church. We did not find that.
Senator Inhofe. In the winter and spring of 2003 there was
a working group that was led by Air Force General Counsel Mary
Walker that reviewed the law on interrogation practices and
made a recommendation to the SECDEF on what techniques should
be allowed at Gitmo. How many techniques did the working group
recommend and how many did the SECDEF approve? Is it not
correct that the SECDEF approved for use fewer than the total
number of interrogation techniques approved by the working
group? In other words, his directive was narrower than what the
group concluded the law allowed?
Admiral Church. The working group sent forward 35
interrogation techniques. Based on advice of his General
Counsel recommending restraint, the SECDEF approved 24.
Senator Inhofe. All right, sir. Finally, I can recall when,
even back in the days I was in the House of Representatives and
certainly many years ago when I came to this body, serving on
the Intelligence Committee, that human intelligence (HUMINT)
went out of vogue for a while. There was an idea that somehow
we are abusing people when we are going after HUMINT; it should
all be done electronically or in some other means.
In your report you say that intelligence-gathering,
particularly HUMINT, has assumed greater importance in the war
on terror. I would like to have you explain why it has assumed
a greater role in this particular war on terror than in
previous uses?
Admiral Church. It is the nature of the enemy, sir. We do
not know who they are, where they are. If we are going to learn
anything about what might be around the corner, we have to have
intelligence, and it is HUMINT that is going to be key.
Senator Inhofe. Can you think of any, any group you might
come upon where the potential of human intelligence would be
any greater than those who are incarcerated, who were the
detainees in the two cell blocks, 1A and 1B of Abu Ghraib?
Admiral Church. That would be one good example, certainly.
Senator Inhofe. It is a fertile field for intelligence-
gathering?
Admiral Church. Certainly the detainees at Gitmo would fit
that criteria.
Senator Inhofe. I would assume that you would agree with me
that there is a direct relationship between the quality of
intelligence and American lives, our men and women in uniform?
Admiral Church. We know that for a fact by some of the
intelligence that we have gained.
Senator Inhofe. You have done great work and I thank you
for your service.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator.
Senator Lieberman.
Senator Lieberman. Thank you, Mr. Chairman.
Admiral Church, good morning and thank you for your work. I
wanted first to put in some perspective the cases that you
investigated because, while no case of abuse is tolerable by
this country, where as everyone has said and agreed we live by
the rule of law even in the most difficult of circumstances of
war, times of war on terror, I think it is important as we
react, particularly to the pictures of Abu Ghraib that Chairman
Warner referred to, about the numbers here.
Am I correct as I saw in one version of the unclassified
version of your report that your estimate is that there have
been more than 50,000 detainees thus far in the global war on
terrorism?
Admiral Church. Yes, sir, at that point in time that was
the figure.
Senator Lieberman. So it is probably more now.
Admiral Church. Yes, sir.
Senator Lieberman. But that was at the point in time you
wrote, September 30, 2004. That would include Iraq,
Afghanistan, Guantanamo, and then other places where detainees
may be held?
Admiral Church. That was the best estimate, yes, sir.
Senator Lieberman. As a result of your investigation you
identified 70 cases of abuse that were substantive cases of
abuse?
Admiral Church. Yes, sir. We reviewed what the NCIS and the
Army CIS had, which included reports from the field as well as
the criminal misconduct. We reviewed everything that we could
get our hands on.
Senator Lieberman. Right. So my point is that 70 cases out
of more than 50,000 detainees is about one-tenth of 1 percent
of the detainees, and it justifies your conclusion that in the
overwhelming majority of cases detainees to the best of our
knowledge now have been treated within the standards that we in
America would want detainees to be treated.
If you go one level further, your judgment as given to the
committee today is that there were 20 of those 70 cases of
abuse that you found to be real, were associated with
interrogation, then we are at about one 25th of 1 percent of
all detainees. I just say this, not to minimize the offenses,
but simply to put them in perspective, that most of the
American personnel, service men and women, who are holding
detainees and in fact interrogating them to the best of our
knowledge are acting within the law. Is that your conclusion?
Admiral Church. That is absolutely correct, Senator.
Senator Lieberman. Let me ask you a factor related to the
way you conducted the investigation. I was interested that you
did not interview any of the detainees, but you did base a lot
of your work on the report of the ICRC, which is certainly in
our perspective an advocate or a protector at least of the
detainees. Could you explain why you did not talk to any of the
detainees?
Admiral Church. First of all, the scope of the
investigation really was to try to catalogue and document all
the interrogation techniques, so that was where we started. As
we expanded, I felt that the ICRC reports, the working papers,
would give me a pretty good feel for what the detainees'
complaints were. We will get into this in the next session, but
from that, from looking at all the ICRC reports, we got a
pretty good feel of what the complaints were and what the
reactions to those complaints were, were they being followed
up. That was the purpose of that particular section.
Senator Lieberman. General Casey the other day suggested,
and there is some reference to it in your report, that he
recently issued a set of new procedures regarding the handling
of detainees and which techniques were available appropriately
to those carrying on interrogation or just the holding of the
detainees.
Could you elucidate for the committee at this time in some
detail about what those additional safeguards are pursuant to
General Casey's directive?
Admiral Church. Senator, I will have to get back to you.
[The information referred to follows:]
The content of General Casey's new interrogation directive for U.S.
military forces in Iraq is classified. A copy of the directive has been
provided to the Senate Armed Services Committee.
Admiral Church. I did read that subsequent to our
investigation. I know he has come very much in line with
Doctrine FM 34-52 and put in a number of safeguards and also
clarified some ambiguities that he felt were left over from
previous guidance.
Senator Lieberman. Just for the record, give us a brief
description of what Doctrine FM 34-52 is?
Admiral Church. Sorry. That is the basic interrogation
doctrine the Services all use. It lists 17 techniques, starting
with direct approach. That is what was in effect for a good
part of the initial global war on terror until we started
expanding it.
Senator Lieberman. I want to go back to the overall view
and the perspective through which we look at this. I quote here
your unclassified executive summary: ``Any discussion of
military interrogation must begin with its purpose, which is to
gain actionable intelligence in order to safeguard the security
of the United States. Interrogation is often an adversarial
endeavor. Generally, detainees are not eager to provide
information and they resist interrogation to the extent that
their personal character or training permits. Confronting
detainees are interrogators whose mission is to extract useful
information as quickly as possible. MIs are trained to use
creative means of deception and to play upon detainees'
emotions and fears when conducting interrogations of enemy
prisoners of war, who enjoy the full protections of the Geneva
Conventions. Thus, people unfamiliar with military
interrogations might view a perfectly legitimate interrogation
of an enemy prisoner of war in full compliance with the Geneva
Conventions as offensive by its very nature.''
Now, obviously some of what we saw at Abu Ghraib and some
of what you have described go well beyond that. But it is
important to set it in that context.
I wanted to ask you this question in terms of detainee
interrogation and the global war on terror. Do the existing
procedures that govern interrogation make any distinction
between--and I understand this can be a slippery slope--
detainees who may have general knowledge of enemy plans and
detainees who we have reason to believe may have knowledge of
an imminent terrorist operations?
I know that there are circumstances in the so-called
ticking time bomb case, where in other countries which attempt
to live by the rule of law the standards of what can--of the
nature of an interrogation of a detainee, can be quite simply
more aggressive if there is a conclusion, reasonably arrived
at, that the detainee has knowledge of the allegorical ticking
time bomb, and if you break that detainee you can stop the bomb
from exploding.
Do our procedures now allow for those kinds of
distinctions?
Admiral Church. I will try to answer that, sir. The policy,
the doctrine, the approved interrogation techniques, would not
change based on what you know the intelligence, the value of
the intelligence of the detainee. What might change is the
interrogation plan of how you approach that, how you might use
techniques in combination to try to get the information you
use, and each interrogation plan might be different.
I doubt that you would waste much time on somebody who was
of little intelligence value, but you would probably spend a
lot of time on somebody who had actionable intelligence that
might save lives.
Senator Lieberman. Thank you, Admiral.
My time is up. Thanks, Mr. Chairman.
Chairman Warner. Thank you, Senator.
Senator McCain.
Senator McCain. Admiral, thank you for your report.
Are all of the interrogation techniques now in keeping with
international law and with treaties that the United States of
America is signatory to?
Admiral Church. Yes, sir.
Senator McCain. In your mind there is no doubt?
Admiral Church. There is no doubt in my mind.
Senator McCain. Is there in your mind a difference in the
status of a Taliban prisoner who was captured in the war in
Afghanistan and that of a terrorist who was apprehended in
Omaha, Nebraska?
In other words, is the Taliban guy, fighter, eligible for
the Geneva Conventions for the Treatment of Prisoners of War,
and is the terrorist caught in Omaha eligible?
Admiral Church. The latter is. The first, as you remember
from the President's----
Senator McCain. The latter is eligible for Geneva
Conventions?
Admiral Church. A terrorist caught in the United States?
Well, I am sorry----
Senator McCain. Is he eligible for----
Admiral Church. He is not a prisoner of war, so he would
not fall into that category.
Senator McCain. Okay. Is the Taliban prisoner fighting for
the then-government of Afghanistan eligible for Geneva
Conventions for the Treatment of Prisoners of War?
Admiral Church. As you will remember, the President said
that the Taliban had not conducted themselves in a manner that
they would be considered parties to the Geneva. So the answer
to your question is no, sir.
Senator McCain. So the President of the United States has
decided that the Taliban, even though there was a government
recognized by some in Kabul, is not eligible?
Admiral Church. He made that determination, yes, sir.
Senator McCain. The North Vietnamese made the same
determination about American prisoners?
Admiral Church. Yes, sir.
Senator McCain. But the Geneva Conventions clearly state
that those who are fighting for a country and--in other words,
in my view those who are fighting for the Afghan government,
whether they were Taliban or average citizens, they were
fighting in the army of that government of Afghanistan. How do
you argue that they are not?
Admiral Church. I am not sure that I am specially qualified
to have the legal debate with you, sir, but----
Senator McCain. I am not having a debate with you. I am
asking you a question. You of all people should be well versed
on what eligibility for treatment under what conditions should
be.
Admiral Church. I am, and I understand what the President
said. He also said that they would be--all would be treated
humanely and consistent with military necessity, in accordance
with Geneva. So Geneva underpinned all of this, but----
Senator McCain. So the United States policy now is that we
decide when we are in a conflict whether the combatants of that
nation are eligible for the Geneva Conventions or not?
Admiral Church. Senator, in Iraq, Geneva Enemy Prisoner of
War (EPW) applied. In Afghanistan and detainees in Gitmo, there
were different rules.
Senator McCain. So you have somebody who is captured.
Different rules for--so you have somebody captured in Baghdad
who was fighting for Saddam Hussein and they are sent to Abu
Ghraib or another prison facility. Next to them is a combatant
who was captured in Afghanistan, in the same cell. There is
different treatment for those two prisoners?
Admiral Church. There would be no different treatment at
Gitmo, but the difference between the applicability of Geneva
would be different.
Senator McCain. Say that again?
Admiral Church. The three different categories were----
Senator McCain. I am going to ask you this example. Saddam
Hussein's army versus Taliban army, both in the same prison.
Admiral Church. Different rules apply, and as for al Qaeda
they are different.
Senator McCain. Does this not get a little confusing for
the people who are in charge of developing specific policies
for terrorism of prisoners?
Admiral Church. I did not find that.
Senator McCain. It is no problem?
Admiral Church. I did not find that for the interrogators
that was a problem, because they had the basic underpinning
that humane treatment was to be observed at all times and they
used the same set of techniques for the interrogations.
So by the time it translated down to the interrogation
piece that I was looking at, I didn't see much of a
distinction.
Senator McCain. You did not see much of a distinction.
Admiral Church. No.
Senator McCain. Do you not think there are specific
protections under the Geneva Conventions for the Treatment of
Prisoners of War that should not apply to terrorists?
Admiral Church. I think I agree with you, sir.
Senator McCain. My point here is, Admiral, that I do not
believe that it is clear the difference in policy towards
treatment of those who are eligible for the Geneva Conventions
on the Treatment of Prisoners of War versus those that are not.
I do not argue that Mohamed Atta is not eligible for the Geneva
Conventions protection. What I am saying is, unless you have
specific guidelines, then obviously if you treated those both
the same you are either not doing quite maybe what you should
to the terrorist and maybe not enough to protect, to be in
compliance with a treaty that we signed.
I worry, Admiral, very much that if we decide that a
certain country's military personnel are not eligible for
treatment under a convention that we signed, then what would
be--would it not be logical to expect that they would declare,
as the North Vietnamese did, that American prisoners are not
eligible for protection under the Geneva Conventions?
Admiral Church. Those were the arguments, yes, sir. I
understand.
Senator McCain. What is your opinion?
Admiral Church. My opinion is that the President made the
right call.
Senator McCain. So everything is fine?
Admiral Church. No, sir. I said I do not believe that the
al-Qaeda should have--was eligible or should have been eligible
because they did not meet the criteria.
Senator McCain. Nor do I.
Admiral Church. I do not believe that the Taliban by their
behavior should have been eligible for EPW treatment.
Senator McCain. Certainly the German SS should not have
been eligible.
Admiral Church. They wore a uniform, sir.
Senator McCain. These guys wore a uniform of sorts.
Admiral Church. But their behavior did not meet the
criteria for EPW.
Senator McCain. But the SS division's behavior was okay?
Admiral Church. Sir, you asked me for my opinion and it is
a good debate. That is my opinion.
Senator McCain. Well, sir, I think it is a little more than
a good debate, because I think this Nation may face other
conflicts in the future and I am very concerned about what
might happen to Americans who are taken prisoner unless we have
clear and specific guidelines that we adhere to, including the
Geneva Conventions where applicable under international law.
I thank you, Mr. Chairman.
Chairman Warner. Senator Kennedy.
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman.
On page 124 of your report, Admiral Church, in the
unclassified paragraphs you describe the initial meetings of
the Haynes working group and their briefing from the OLC on the
applicable law. Your report states that fairly early on in the
working group process the OLC draft legal memorandum was
presented to the action officers as the controlling authority
for all questions of domestic and international law.
This memoranda was basically the Biby torture memorandum,
and you said the working group expressed a great deal of
disagreement with the OLC analysis. In your report you write
that ``Members of the working group were only permitted to read
the memoranda in Mr. Haynes' or Ms. Walker's office, initially
without taking notes.''
In addition, you write that your investigators were not
allowed to obtain this crucial memoranda either, but only could
review it without taking verbatim notes.
This memo has never been provided to the committee, despite
our requests. This issue also highlights the involvement of Mr.
Haynes.
Now, the memo was--you said the working group expressed a
great deal of disagreement with the OLC analysis. They said
interrogation techniques should follow the Geneva Conventions,
the Conventions Against Torture, and U.S. law. Now, that is not
what the Haynes working group finally recommended. So, Admiral,
could you tell us how this dispute was resolved? Were the
members of the working group overruled?
Admiral Church. Thank you for the question, Senator. I want
to state initially that the value I think of my investigation
is that I lay all this out. This has never been laid out
before, so that we can understand exactly everything that went
on in the determination of these techniques.
As I did my research, I came to understand that what the
DOJ had said was in fact binding on the DOD. So that was the
legal underpinning that this group began working on. They
ultimately, working through that, recommended 35 techniques.
The Secretary of Defense approved 24, but again there was the
underpinning of humane treatment that was in, not only in the
memo, but also in the consideration.
But you are correct, sir.
Senator Kennedy. Well, I am not sure what I am correct
about. I said the working group--you said the working group
expressed a great deal of disagreement with the OLC analysis,
and they said the interrogation should follow the Geneva. Now,
I want to--I was asking how was that issue resolved? Here you
have a number of the people that have had responsibility, are
trained people, the Judge Advocate General (JAG) I imagine,
other lawyers, that express a great deal of disagreement. Those
are your words. Eventually this issue was resolved, and I am
asking you about how that was resolved and who resolved it. Was
that just resolved by Haynes?
Admiral Church. It was resolved by I guess the chairman of
the committee, Ms. Walker, basically said: We are not going to
go revisit the decisions of Justice; we are going to move on.
So they moved on, and they started looking at the techniques.
As they looked at the 35 techniques, they assessed those in
numerous categories dealing with humane treatment versus how
this would be perceived internationally and many other
categories.
So the short answer, Senator, is they moved on; they
accepted what the legal starting point was.
Senator Kennedy. I know they have moved on, and I am
familiar where the working group published and how they
published virtually identical to the Biby memorandum. I am
familiar. The point I am trying to find out is, who made the
judgment? When you had talked about a great deal of
disagreement with the OLC, who was the one that finally made
the call on this? Who was the one that finally said when there
was disagreement, in your own words, a great deal of
disagreement? As we all know that from other memoranda, there
was an enormous amount of disagreement.
Someone finally made the call that what they were going to
do is in the working group they would actually print exactly
the words in the Biby memorandum. I am just asking you who made
that call.
Admiral Church. I believe the answer was the Office of the
General Counsel.
Senator Kennedy. That is Mr. Haynes.
Admiral Church. It is, but I would like to add one thing. I
looked at that very closely and that is why I came to the
conclusion, because I questioned the same thing and the lawyers
who made those issues--that the rulings of the DOJ were binding
on the DOD, and that's what I called in my investigation. So it
was not a bad call.
Senator Kennedy. Well, I can understand and appreciate your
position. Many of us understand that it was the CIA went to Mr.
Gonzalez, with the understanding of Mr. Haynes, to request this
memoranda from OLC, and that Mr. Gonzalez talked to OLC during
the course of the preparation. This has been laid out in a
different hearing. That finally they came back, the Biby
amendment came back, and this was just fine with the CIA and
with the DOD, and it was sent on over. The record shows that
there were many in the JAG and otherwise that did not feel that
it followed the Geneva Conventions, and you expressed a
similar--an opinion about this.
I want to know who in the DOD made the call on it. It is
quite clear now that it is Mr. Haynes, who is the General
Counsel on it. That is basically what I am trying to have.
My time is up, unless there is something you want to add to
that.
Chairman Warner. Let the witness finish the answer.
Senator Kennedy. Yes, please.
Admiral Church. No, sir, I think I have answered the
question. I did go down this road, as I mentioned, to try to
see if that was in fact an appropriate determination and
ultimately concluded--and I think it is in the report--that it
was. The memo, of course, as we all know, has now been
discredited.
Senator Kennedy. Well, it was in effect for 2\1/2\ years.
Admiral Church. You are correct, Senator, it was.
Senator Kennedy. But it took some time before it was.
Admiral Church. Yes, sir.
Senator Kennedy. Thank you.
Thank you, Mr. Chairman.
Chairman Warner. I thank the Senator.
Senator Talent.
Senator Talent. Thank you, Mr. Chairman.
I want to thank you for your service, Admiral, on what has
undoubtedly been a very difficult and trying endeavor. I just
want to refer to page 4 of your report, when you--the narrative
recites how in the fall of 2002 the belief on the part of our
interrogators at Guantanamo was that the techniques they had
were inadequate and they asked for permission or further
guidance to use other techniques, and the SOUTHCOM commander
approved 19 counter-resistance techniques that were divided
into categories 1, 2, and 3.
I was curious in reading it because originally the
Secretary's decision only allowed one category 3 technique,
which was authorization of mild, non-injurious physical
contact, such as grabbing, poking in the chest with a finger,
and light pushing. That was originally allowed and then
subsequently disallowed. The category 2 techniques were
subsequently disallowed.
So I am wondering, what were some of the category 2
techniques that were subsequently disallowed?
Admiral Church. I would have to refer quickly to the memo.
Senator Talent. Sure, would you do it quickly, or one of
the other folks there? I am wondering because category 3
techniques--and maybe I do not understand interrogation very
well--the grabbing, poking in the chest with the finger, that
is not normally what I would think of as torture. That used to
happen in settlement negotiations when I was practicing law
rather a lot. I have seen worse at conference committees.
Admiral Church. Well, you are correct----
Senator Talent. I presume category 2 techniques were milder
than category 3 techniques?
Admiral Church. That is correct, sir. They were tiered.
Senator Talent. Yes. So give me an idea of what were the
category 2 techniques that were originally approved?
Admiral Church. I am sorry that these are all running
together after 9 months. Stress positions----
Senator Talent. A stress position, like standing at
attention for a while?
Admiral Church. Or in a kneeling position. There are
various interpretations of that.
Use of hooding. Removal of clothing was actually one. Use
of detainees' individual phobias. There were 14 initially in
the list.
Senator Talent. Okay. The reason why the original request
went up to SOUTHCOM and then to the Chairman, General Myers,
and then to the Secretary of Defense, was because they thought
they were not getting enough intelligence because these guys
had been trained to resist effectively the techniques. It does
not surprise me that they would have been able to resist these
techniques.
Category 2 was permitted, but then subsequently that was
revoked, so category 2 was not permitted either, right?
Admiral Church. That is correct, sir.
Senator Talent. Mr. Chairman, Senator Lieberman and Senator
Inhofe spoke for me. There was a vehicle improvised explosive
device (IED) that went off in Hillah, Mr. Chairman, 2 weeks
ago. 150 Iraqi recruits to the police were killed. Five hundred
IED attacks a month, 750 Americans lost in Iraq because of
that. This is a subject that I have investigated personally and
I know you have too, Mr. Chairman, and we have on the
committee, and everybody I have talked to who is in the
business of fighting IEDs in our military, in our intelligence,
in Israeli military and intelligence, in British intelligence,
tells me that getting good intelligence is the key to stopping
this IED threat.
Speaking for myself, if our guys want to poke somebody in
the chest to get the name of a bomb maker so they can save the
lives of Americans, I am for it. Mr. Chairman, if the DOD wants
to investigate me for that and have 15 investigations and call
me inhumane, fine.
I have been over there. I have talked to these guys. This
is the single biggest threat we face in the war on terror, and
we have to empower our people to deal with it. I know it is
important that we stick to our own beliefs. That is important
in fighting the war on terror. I am glad you have had these
hearings, Mr. Chairman, because it shows that we care in this
country.
But at a certain point we have to introduce a note of
proportion. I think that is what Senator Lieberman was saying.
I do not speak for him. We have the best military in the world.
I do not need an investigation to tell me that there was no
comprehensive or systematic use of inhumane tactics by the
American military, because those guys and gals just would not
do it. Everything about the culture and the training in the
military and at home works against that.
That is why the terrorists are attacking us, because we are
not the kind of society that would do that.
Thanks for holding this hearing and giving me a chance to
say that, Mr. Chairman.
I appreciate your service, Admiral.
Admiral Church. Senator, I need to clarify one answer I
gave you for the record. You are correct in that the tiers one,
two, and three techniques were all rescinded and that gave way
to the 24 techniques in the more restrained of the 35
recommended. They were no longer referred--there may have been
one or two tier two techniques that became one of the 24. I
would have to check. But clearly they moved to more restraint
when they issued the second set.
Senator Talent. Admiral, it is a great country we have, in
part because we sweat so much over this stuff. I do not mean to
be out of proportion myself. If you sweat the small stuff, then
you can have confidence that you are not doing the big stuff.
Maybe that is what Senator McCain was saying. So I admire us
for doing that, but, man, I want people to know this is not the
sort of thing we do, but what we need to do, we need to have
effective interrogation techniques to get this intel. This is
the whole game, beating these IEDs, and we will not do it just
with force protection measures or electronic countermeasures.
We are not going to win this from the sky. We are going to win
it on the ground, with real intel, and that includes effective
interrogation techniques.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator. Senator, next week
this committee will have a briefing on the very serious
situation of the IEDs, and part of that will be the discussion
of the issues that you raise.
Senator Talent. Mr. Chairman, you and I have talked
personally about this and I want to compliment you on your
leadership in this area. Unfortunately for the purpose of the
public, most of what we do in that area, of course, we have to
do in closed session.
Chairman Warner. Yes.
Senator Talent. So the public does not always see us and
the work that you have led this committee on doing here.
Chairman Warner. But the work is going on.
Senator Talent. Absolutely, Mr. Chairman.
Chairman Warner. I thank my colleague.
Senator Reed.
Senator Reed. Thank you, Mr. Chairman.
Thank you, Admiral. Admiral, in the course of your
investigation did you speak or interview Ambassador Bremer?
Admiral Church. No, sir, I did not.
Senator Reed. Why would you not speak with someone who was
the senior DOD official who made significant decisions about
using Abu Ghraib? He presumably was the interface between our
military operations as an employee of the DOD and other
agencies like the CIA?
Admiral Church. It is a several-part answer. The first is
it was the scope of my investigation. But I did pursue----
Senator Reed. Let me follow up if I may. You were
specifically told not to----
Chairman Warner. Senator, let him just finish his reply and
then I will give you extra time to develop this.
Senator Reed. Thank you, Mr. Chairman.
Chairman Warner. Finish answering the Senator's question.
Admiral Church. Excuse me, Senator. I was not limited in
who I asked questions of. I almost said ``interrogated.'' I
generally stayed within the DOD because that was--Ambassador
Bremer as I understood it worked for the Department of State
(DOS).
Senator Reed. Admiral, you are fundamentally wrong.
Chairman Warner. Wrong.
Admiral Church. Maybe. I am sorry.
Chairman Warner. Let the record show that this committee
was advised that he was taken on by the Secretary of Defense.
It may have been some technical salary arrangement, but for all
intents and purposes am I not correct?
Senator Reed. You are absolutely correct, Mr. Chairman. He
was an appointee of the Secretary of Defense, clearly within
the chain of command of the civilian authorities and the
Secretary of Defense.
Admiral Church. The short answer to your question, sir: I
apologize for being in error. There were one or two things I
was trying to determine in terms of what Ambassador Bremer knew
about potential abuses at Abu Ghraib. You are correct that I
did not ask him the direct questions, but I talked to his
military assistant. I talked to a number of those who were at
the daily meetings, to try to determine if there was any
indication, early indication, that he had of abuses that he
passed to General Sanchez. That was the specific tasking I was
looking at at the time. But I did not interview Ambassador
Bremer, that is correct.
Senator Reed. Admiral, that seems to be a stunning
omission. Here is an individual who is the direct
representative of the Secretary of Defense, who was I would
assume nominally the commander of General Sanchez, who was
virtually the viceroy of Iraq, and to simply stop with his
military assistant to see if they might have gleaned something
at a meeting or a conversation seems to me woefully inadequate,
with all due respect.
Admiral Church. I accept the criticism, sir. I was trying
to--again, the charter was to look at how the interrogation
techniques were developed and migrated. I did not need to
interview Ambassador Bremer to determine that. As I expanded
the scope of my investigation, questions arose which I then
followed up on. But I did not specifically have a need in my
mind to interview him and, frankly, I am not sure what
questions I would ask him if I were interviewing him today.
Senator Reed. Did you in any way authorize any military
officer to violate the law or convention? Did you authorize,
allow the CIA--presumably the station chief worked for him--to
conduct operations that were contrary to American law? I think
those are pretty basic questions.
Admiral Church. Yes, sir.
Senator Reed. Which goes to how these techniques migrate.
Admiral Church. I think I have a pretty good track on the
techniques, what was used and how they migrated, sir.
Senator Reed. Thank you.
Let me turn to Gitmo now. In the course of your
investigation did you discover techniques that were either
authorized or used--and I recognize some were merely
authorized, but never used--that included environmental
deprivations like hot rooms, cold rooms, withholding of food,
hooding for periods of time, removal of clothing, or isolation?
Were these techniques that, were either in an interrogation
plan or at times used at Gitmo, in the course of the many
months that the facility was operated?
Admiral Church. As I described in the investigation, there
were at least one or two instances where we noted those
techniques were employed, where we had a clear need for
actionable intelligence.
Senator Reed. By that--and I do not want to put words in
your mouth--these tools were available, all of these perhaps.
Let me ask that question: Were these the range of tools
available?
[The information referred to follows:]
``Environmental manipulation,'' defined as ``[a]ltering the
environment to create moderate discomfort (e.g., adjusting temperature
or introducing an unpleasant smell)'' was approved on April 16, 2003.
The memorandum specified that ``[c]onditions would not be such that
they would injure the detainee'' and that the ``[d]etainee would be
accompanied by interrogator at all times.''
Withholding of food was never authorized. Between December 2, 2002,
and January 15, 2003, detainee meals could be switched from hot rations
to Meals, Ready-to-Eat (MREs)--the standard meals provided to U.S.
troops in the field. This technique was rescinded on January 15, 2003.
On April 16, 2003, the technique ``Dietary Manipulation'' was approved,
defined as ``[c]hanging the diet of a detainee; no intended deprivation
of food or water; no adverse medical or cultural effect . . . e.g., hot
rations to MREs.''
Hooding of detainees during transportation and questioning was
authorized on December 2, 2002, and rescinded on January 15, 2003. It
was specified that the hood ``should not restrict breathing in any way
and the detainee should be under direct observation while hooded.''
Removal of clothing was authorized on December 2, 2002, and
rescinded on January 15, 2003.
Use of an isolation facility for up to 30 days was approved on
December 2, 2002, and rescinded on January 15, 2003. It was again
approved on April 16, 2003, defined as ``[i]solating the detainee from
other detainees while still complying with basic standards of
treatment.'' Extensive safeguards were prescribed by the April 16
memorandum (which, along with the December 2, 2002, memorandum was
declassified and released to the public on June 22, 2004).
Admiral Church. I would have to do a side by side, sir, but
most of those were not generally available. They were not, as I
remember, part of the 24 that had been approved by the
Secretary of Defense. There were a couple of interrogations
that were specific techniques were authorized beyond those 24.
Senator Reed. What techniques were used in those
interrogations?
Admiral Church. There was sleep management, hooding, stress
positions, as I remember, were a few.
Senator Reed. Did you interview General Miller in your
investigation?
Admiral Church. Yes, sir.
Senator Reed. On May 19, I asked General Miller the
following question: ``It has been reported that you developed a
72-point matrix for stress and duress, that lays out types of
coercion at escalating levels. They include harsher heat or
cold, withholding food, hooding for days at a time, naked
isolation and cold, dark cells. Is that correct?''
His answer was: ``Sir, that is categorically incorrect.''
My response: ``That never happened?''
``That is categorically incorrect.''
How do you rationalize your statement today that, at least
in several instances, things like this happened and that
categorical denial?
Admiral Church. I think we are mixing two events. I am not
familiar with any matrix.
Senator Reed. Well, go ahead, sir.
Admiral Church. I am not saying it does not exist, but we
asked for every piece of paper that existed and made a couple
of trips to Gitmo. So I am not aware of that.
But there were two instances where we know that specific
interrogation plans were used against those with actionable
intelligence----
Senator Reed. Well, if we substituted the word
``interrogation plan'' for ``matrix,'' how do you reconcile the
statements?
Admiral Church. I would say I do not see the same thing. As
a matrix, I understand that to be, Senator, some preplanned
sliding or slope of techniques, that I have never seen.
Senator Reed. So the real categorical denial was it was not
a matrix? These techniques were available. As you have
indicated, they were used. But it was not a matrix. So General
Miller categorically denied that it was called a matrix; is
that your interpretation?
Admiral Church. I have never had that specific conversation
with him.
Senator Reed. It seems to me a terribly misleading response
based upon your findings, to suggest that none of this ever
happened. That none of this was ever in any type of document,
in any type of plan. I will just stop there.
Admiral Church. Senator, I would like to--I hope my
investigation clearly lays out everything that happened, both
at Gitmo and in the development of techniques. We know that
there was the 2 December memo. We know that was rescinded. We
know how we got to the 24 techniques approved by the Secretary
of Defense, and we know that on a couple of occasions there
were exceptions to that that the Secretary of Defense approved
and he has openly discussed.
Senator Reed. All of these happened before May 19, 2004?
Admiral Church. Yes, sir.
Senator Reed. You had a uniformed officer come up here and
object to the term ``matrix'' by saying that it is
categorically wrong; of course, we used these things
occasionally?
Admiral Church. I am sorry, Senator. I do not have the
context of the question or answer.
Senator Reed. Let me turn now to another issue. You worked
closely with the Schlesinger committee. When Secretary
Schlesinger was here with Secretary Brown, I asked the
question: ``In October 2003 Secretary Rumsfeld, at the request
of Mr. Tenet, ordered the military chain of command to deny at
least the registration rights under the Geneva Conventions to
an individual who I believe is an Iraqi citizen, an Al-
Ansalaam. Do you think that is consistent with the application
of the Geneva Conventions to Iraq?''
Secretary Brown: ``The answer to that is no, it is not
inconsistent.''
Dr. Schlesinger: ``If that happened, this is not
consistent.''
Now again, as a factual predicate, I got my information
from the public media, so there may be facts in dispute. But
have you looked into the situation and certainly the military
officers that might have transmitted that command down the
chain?
Admiral Church. We document that in our investigation in
terms of what happened. I think you are referring to what is
generally referred to as ``Larry'' or ``XXX.'' If that is the
same individual--I do not remember the name--then we know how
that happened. The Secretary of Defense has said that should
not have happened that way.
Senator Reed. That is nice, it should not have happened.
But there were military officers that at least arguably were
following orders that contravene the Geneva Conventions.
Admiral Church. The Secretary of Defense did say that, yes,
sir, that is right, that he was not assigned an internment
security number for many months, and that has been
acknowledged.
Senator Reed. As a violation of the Geneva Conventions?
Admiral Church. Yes, sir.
Senator Reed. What about those officers that carried out
that order, Admiral? They were not privates and corporals and
sergeants. They started with generals and colonels and all the
way down.
Admiral Church. The individual you are talking to, I think
the quote that I have seen, kind of fell through the cracks. In
the chaos of the ongoing war, they accepted the individual and
did not assign him an internment security number and
essentially forgot about him for many number of months until
people started trying to find out where he was and then they
found him.
Senator Reed. Who is being held responsible for allowing
that to happen?
Admiral Church. I cannot answer your question. We know it
happened and we know why it happened, and it was an unfortunate
incident, but it happened.
Chairman Warner. But your charter by the Secretary of
Defense did not require you to reach a conclusion. That is my
understanding.
Admiral Church. This whole discussion is well beyond the
charter of my investigation----
Chairman Warner. This what?
Admiral Church. This whole discussion is really beyond the
charter. I tried to capture as much as I could. We know that
the particular individual fell through the cracks, as I said
earlier.
Chairman Warner. Senator, resume, please.
Senator Reed. Thank you, Mr. Chairman.
Just a point. Someone who has been singled out for
specialized treatment by the Secretary of Defense and the CIA
Director, I find it hard to believe he just falls through the
cracks. I find it hard to believe that this just was an
administrative goof. I think, frankly, that part of your
responsibilities were to look closely at the military chain of
command certainly as to how they responded to these orders,
some of which clearly are contrary to the convention.
Admiral, this to me is a very disappointing report. The
limitations both imposed on you from without and self-imposed
apparently, particularly with respect to Mr. Bremer, lead to
conclusions--and again, this report is not simply laying out
the facts. You have drawn some conclusions, and it seems to me
the conclusion is this is all just one big misunderstanding,
this policy here, we did not fall not into the cracks, et
cetera, which I do not think is an adequate response to the
problems we have seen.
I think the chairman asked a very fundamental question:
What contributes to breakdown of good order and discipline? I
would argue at least in part it is when people in authority,
not just E-5s and E-6s, find ways to excuse violations of the
law, and that is a very toxic ingredient.
There was an ancient Roman that posed the question, who
will guard the Guardians, the question we face today: Who will
look after those that we have entrusted with our national
security and defense and ensure that they follow laws? I think
the jury is still out.
Thank you, Admiral.
Admiral Church. Senator Warner, can I make a comment?
Chairman Warner. Yes, of course. You can have adequate time
to respond to the Senator's last observation and any others you
wish.
Admiral Church. Thank you, sir. I would like to challenge
the premise that this was all one big misunderstanding. We
spent 9 months, as I said initially, over 800 interviews,
reviewed thousands and thousands of pages of documents,
leveraged all the other reports. I took very seriously my
charge as an IG. I understand I was picked because I was an IG,
because they wanted an independent look at exactly what
happened, how it happened, why it happened. I think I have laid
that out with some precision.
I am just reacting to the characterization of the report,
which I am proud of and the work that the folks did, as a
misunderstanding. Clearly some things were done wrong. Clearly
some things in hindsight, Senator, would be done differently,
and I think I have captured those. I have laid out all the
abuse cases, and had the chips fallen differently I would have
made that call. They did not, and I was as factual--and I think
that is why you ask an IG to do something like this, is because
you get--every IG I have known takes that position of
independence very seriously. I took it where it led, and the
facts are the facts, and I understand that some people will not
like the facts or in some cases the conclusions. But it is not
all one big misunderstanding, sir.
Senator Reed. Admiral, I respectfully disagree. I think
failing to pursue all the facts, failing to at least talk to
Ambassador Bremer and to follow up on certain things that seem
to emerge from our discussion, suggests that this is not the
thorough, complete, no-holds-barred report that many of us
expected.
Thank you.
Chairman Warner. I would simply say, Senator, that I share
your views with regard to the integral role that Ambassador
Bremer had in the overall decisionmaking in this time period,
that he had the designation really given by the President at
the recommendation of the Secretary of Defense, is my
understanding.
However, I would like to--and I think, Admiral, look, I am
a tough old bird. You had a difficult job. You did the best you
could professionally, drawing on years of experience, and there
is obviously going to be, I think, respectful differences of
view. But I am glad you have stated for the record and
reaffirmed the work that you and your many subordinates--how
large was your team?
Admiral Church. We started with 50 when we went into the
theater and started doing our initial investigatory work and
asking questions for the record, taking sworn statements. Very
shortly after that we were down to a dozen or so, and I think
there are two of us standing today, Senator.
Chairman Warner. I want to call your attention to the
headlines, and I select the Washington Post. It reads ``Abuse
review exonerates policy.'' I think probably that you would
reflect that headline as being reasonably accurate. In other
words, you said the policy----
Admiral Church. The policy did not----
Chairman Warner. --was not the cause, the root cause of
these egregious breaches and criminal acts.
Admiral Church. Yes, sir.
Chairman Warner. But the next line could in the minds of
individuals cause confusion, and it reads ``Low level leaders
and confusion blamed.'' That implies that the upper level
received some type of exoneration, it could be inferred by
some, and I want to clarify that. In your series of interviews,
I presume you interviewed General Karpinski, General Fast,
General Sanchez; would that be correct?
Admiral Church. We did not specifically interview General
Karpinski, but the other two we did.
Chairman Warner. You did. Was there a reason for Karpinski,
because of her legal situation at this time?
Admiral Church. No, sir. Again, I leveraged a lot of the
other reports and, because Generals Taguba, Fay, Kern, Jones
had all looked so thoroughly at that, I did not reinvestigate
Abu Ghraib, so I felt no need to interview her. But I did have
some questions for General Sanchez and some others, but did not
interview her.
Chairman Warner. The Department of the Army, under the
immediate direction of the Secretary and subject to review by
the Secretary of Defense, are looking at the issues of
accountability and participation by those three officers. It
was never your charter, clearly, to establish accountability.
So I wish to make clear for the record, you were not
interviewing for purposes, I presume, of accountability, but as
I in my initial question stated, what was the root cause of so
many instances where regulations were completely ignored, good
standing regulations and procedures, which allowed these acts
to take place.
In your interviews with, say, General Fast and General
Sanchez, could you comment on what you learned from each of
them?
Admiral Church. Both General Fast and General Sanchez in my
opinion were----
Chairman Warner. Do not mix them. Take one at a time.
Admiral Church. General Sanchez, I had specific questions
primarily for General Sanchez on how he developed the
techniques that he promulgated in September and then
repromulgated in October. So that was the line of questioning.
I needed to understand from him what he--what was given to him,
did it have a legal review, why did you not just rely on Geneva
or the doctrine, why did you promulgate separate interrogation
techniques in September. So the line of questioning was how did
we develop and promulgate and why did you do that.
I was also trying to follow up on what he knew about the
events at Abu Ghraib that maybe had not already been covered. I
did not uncover anything new that really we did not already
know. General Fast----
Chairman Warner. Let me just summarize then. With General
Sanchez, you determined from your interview that the
information he provided you was consistent with the same
information he had given others----
Admiral Church. Yes, sir.
Chairman Warner. --and which information had been published
in any of the other nine series of reports; is that correct?
Admiral Church. It was. I gleaned a couple other things
regarding pressure on interrogators, but that is a correct
statement, Senator, yes, sir.
Chairman Warner. Did you confirm that General Sanchez was
very shorthanded with staff? He was given an enormous
responsibility, very shorthanded with staff, was managing a
very hot war situation at the same time he was trying to do a
lot of administrative things of this nature; is that correct?
Admiral Church. Consistent with the other investigations, I
confirmed that, yes, sir.
Chairman Warner. Thank you.
Now we turn to General Fast.
Admiral Church. I questioned General Fast on----
Chairman Warner. You might describe for the record what her
area of responsibility was. I know, but I think it is
important.
Admiral Church. She was, I guess, the C-2 or the J-2, the
head of the intelligence function at the CJTF-7.
Chairman Warner. Which is General Sanchez's command?
Admiral Church. She worked directly for General Sanchez.
She was brought in specifically to put into place the
intelligence architecture.
My purpose in talking to her was what she knew about the
interrogation policies and what she knew about any instances of
abuse and when she knew them. I was able to document all that,
and she really was not particularly engaged in the
interrogation techniques. It turns out that was mostly the JAGs
who put that together.
But since you mentioned those two, I will say that, of all
the people I interviewed in the course of this investigation,
those two individuals were the most responsive and forthcoming
of anybody, and both of them at the time were in the process of
permanent change of station orders, and I would get 24-hour
turnaround on the questions that I needed answered. So that was
not your specific question, but I took the opportunity,
Senator, to make that point.
Chairman Warner. No, but I think that is an important
observation.
Now, there is considerable question in the minds of many as
to the culpability or nonculpability of seniors in this chain
of command. You go up from Colonel Pappas, I presume. Did you
have an opportunity to talk with him?
Admiral Church. No, sir. I relied on previous
investigations.
Chairman Warner. Let us talk about the chain of command, as
you went up the chain of command whom you interviewed.
Obviously, Karpinski, you have answered that. Fast, not direct
chain of command, staff, but nevertheless reporting to Sanchez.
You have covered Sanchez.
Did you talk to General Abizaid?
Admiral Church. I did, sir.
Chairman Warner. What can you share with regard to his
responses?
Admiral Church. General Abizaid, actually I debriefed him
on the way out. Primarily what I did with CENTCOM, I reviewed
all the documentation that they had relevant to the development
of interrogation policies. I did not interview him specifically
because I had all my questions answered.
Chairman Warner. Any other senior level individuals did you
interview?
Admiral Church. Yes, sir. Throughout the Pentagon, all the
way up to Deputy Secretary of Defense and the Vice Chairman of
the Chiefs of Staff.
Chairman Warner. I think let us go very thoroughly now. You
went through the chain of command right up to the DOD?
Admiral Church. Yes, sir.
Chairman Warner. You interviewed right up through Secretary
Wolfowitz, is that correct?
Admiral Church. That is correct, sir.
Chairman Warner. And the General Counsel?
Admiral Church. The General Counsel, I interviewed the
General Counsel.
Chairman Warner. Secretary Cambone?
Admiral Church. I did, sir.
Chairman Warner. So really you did cover with, in my
judgment, thoroughness the entire chain as it related to your
charter.
Admiral Church. That was my attempt, yes, sir.
Chairman Warner. I have already indicated that there are
ongoing assessments of the culpability of several of these
individuals whom we have mentioned and you are aware of that?
Admiral Church. I am aware of that, yes, sir.
Chairman Warner. So any inference that just low-level
officers and leaders blamed could be misconstrued because these
are still being examined.
Admiral Church. I have seen the list and that is correct,
sir.
Chairman Warner. I just wanted to make that eminently
clear. This committee will continue to discharge its
responsibility in this matter as further reports are made
available to us, and we will perhaps do some of our own
independent work in this area. But your report constitutes a
very valuable part of this committee's record.
On the question of ghost detainees, you found that there
were violations of the Geneva Conventions regarding failures to
account for some detainees, called ``ghost detainees,'' and to
make their presence at Abu Ghraib known to the ICRC. What were
your findings with respect to this issue? Did you find the type
of violation at other detention facilities?
Admiral Church. Senator, we did not find that anywhere
else. If I did not say it earlier I should have: The CIA
cooperated with our investigation and in fact reviewed that
section of the report. Between what we had and what they had,
we determined that there were about 30 ``ghost detainees,''
although that is not a term of doctrine, that existed, I think
the maximum was for a period of 45 days. That has long since
been discontinued, but we did document that we think about 30
ghost detainees did occur.
Chairman Warner. Let us turn to the professional military
intelligence in the Department of the Army. You conclude in
your report that only 20 of the substantiated cases of abuse
were interrogation-related and that only a few of these
incidents actually involve military investigators. Were the
methods and techniques used by these interrogators derived from
any policy issued by the local command, and in the absence of
that policy or the circumstances of changing policy what guided
the actions of these interrogators, and did you feel that the
professional military interrogators were well trained
individuals?
Admiral Church. You are correct, sir, using the expansive
definition of ``interrogation-related,'' we found about 20
instances of the 70 abuse cases. Again, the way we classified
that, that was even MPs or any member at the point of capture.
None of these directly related to any of the authorized
interrogations. Although interrogators were in short supply, as
we have known and documented, I found the professional training
to be quite good, those that we had.
Chairman Warner. Therefore you feel that the intelligence
segment of the Department of the Army had in the field well-
trained individuals?
Admiral Church. Yes, sir. Not in sufficient numbers, but
well trained.
Chairman Warner. Thank you very much.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
There has been reference to a very critical memo here that
you were able to look at but not take a copy of. That is that
March 14 memo prepared by Deputy Assistant General Attorney Yu
for Mr. Haynes.
Mr. Chairman, we have a right to that memo. I think the
Admiral had a right to have a copy of that memo, but that is up
to him to decide. This committee has a right to that memo. I
would ask that we on an urgent basis get that memo. It has been
referred to numerous times. It was a key part of this whole
interrogation decision. It was a memo, a controlling memo,
despite the concerns of the lawyers inside of the military. I
would ask you, Mr. Chairman, that we make a formal request for
a copy of that memo.
Obviously, if they want to give it to us on a classified
basis that's one thing. But not to have a copy of that memo is
totally unacceptable. I am afraid it is too typical of a very
great reluctance on the Department's part to be fully
supportive with documentation which has been requested on other
occasions by us. But anyway, my specific request, Mr. Chairman,
is for that March 14, 2003, memo.
Chairman Warner. As you know from our long working
relationship of 27 years on this committee, I feel that
Congress is a coequal branch and as such, unless there is
executive privilege attached to certain documents, Congress
should have them, and I will look into this with you.
Senator Levin. I thank you.
Chairman Warner. Thank you.
Senator Levin. I thank you for that.
Now, Admiral, you indicated as I understand it, that you
were not tasked to assess personal responsibility at senior
levels, is that correct?
Admiral Church. That is correct, sir.
Senator Levin. In your report you say that issues of senior
official accountability were addressed by the Schlesinger
Panel. But the Schlesinger Panel did not address the issue. As
a matter of fact, they were specifically tasked not to. In
their tasking from the Secretary on May 12, 2004, they were
told that issues of personal accountability were to be resolved
through established military justice and administrative
procedures. So they were not tasked. In fact, they were quite
clearly told to stay away from it. Then this one qualifier was
added: ``although any information you may develop will be
welcome.''
So what did you mean when you said the Schlesinger Panel
was tasked to assess personal accountability at senior levels,
that was not your job?
Admiral Church. Thank you for the opportunity to explain.
The Schlesinger Panel charter was pretty open-ended. The
Secretary of Defense verbally told them: ``You look at anything
you need to look at.'' You are correct, it may not be in
writing.
We worked very closely with that panel. As I mentioned
earlier, I think, we provided all the data that you see in
their report. I reviewed their drafts. We exchanged
information. Early on in working together with that panel, I
made the observation that I was not tasked to look into
responsibility, individual or high-level responsibility. It
evolved and an agreement was made that they would do that, and
that kept me within my charter to look at interrogation and
development of interrogation techniques.
There was nothing formal about that, but there was an
understanding that they would do that, and I as I looked at
their report, I thought they had. Now, there is a difference
between responsibility and accountability, as you well know,
Senator. I thought they assessed responsibility fairly clearly.
Senator Levin. This is about the only thing they said that
we can find, that the abuses were not just a failure of some
individuals to follow known standards and they are more than
the failure of a few leaders to enforce proper discipline.
There is both institutional and personal responsibility at
higher levels.
Did they identify anybody at higher levels who bears
personal responsibility?
Admiral Church. They did, sir. There are about five
instances in the report that I pulled out. One comment,
Lieutenant General Sanchez and his deputy failed to ensure
proper staff oversight of detention and interrogation
operations. The quote that you just had, and interrogation
policies with respect to Iraq, where the majority of the abuses
occurred, were inadequate or deficient in some respects at
three levels: DOD, CENTCOM-JTF-7, and the prison itself.
Chairman Warner. Could you give us the citation of the
material that you are reading?
Admiral Church. Yes, sir.
Senator Levin. I quoted that before, so we do have that
citation.
Did they identify any personal responsibility? Did they say
who it was up in the chain of command that was the cause of the
confusion, what was the reason why there were inconsistent
rules relative to interrogation, who it was who blocked the
lawyers who had objections to the rules that were proposed by
the Office of Criminal Justice (OCJ)? Did they do any
assessment of responsibility, name any names, up that chain of
command above Sanchez?
Admiral Church. Beyond what I told you, no, sir.
Senator Levin. Okay. There was reference here to the
definition of ``humane treatment'' that was supposed to be
followed at Gitmo. Did you agree with General Miller's
definition of ``humane treatment?''
Admiral Church. I do not remember specifically what that
was, so I will not give you a specific answer, sir. He may have
said something I am not aware of.
Senator Levin. So you do not remember having a reaction to
his definition of ``humane treatment,'' as to whether it was
too narrow?
Admiral Church. No, sir, I do not. Sorry.
Senator Levin. One of the tactics which was referred to in
the FBI e-mail, was--I am quoting here--that ``DOD
interrogators impersonated special agents of the FBI when
talking to detainees, that this tactic produced no
intelligence,'' they said, ``of a threat, that it may have
destroyed any chances of prosecuting the detainees.'' But my
point here is the tactic itself, DOD personnel and
interrogators impersonating FBI agents.
Did you check into that and see what the basis of that
tactic was, the origin of the tactic?
Admiral Church. There is a tactic, impersonating personnel
from a third country, for example. That is part of the basic
concept of interrogation, which is deceit to try to get the
information. You could almost make the case that falls within
doctrine.
Senator Levin. The FBI objected to that, is that correct?
Admiral Church. Yes, sir, as I remember.
Senator Levin. Did you talk to the FBI about why they
objected to it?
Admiral Church. We had the FBI memo. As I may have, I hope
I mentioned, we looked very clearly at that. We know the couple
of instances they are talking about. In the early development
of the techniques, a lot of things were being considered. That
eventually led to the October memo that SOUTHCOM forwarded up.
But we are aware of that, sir.
Senator Levin. Did you talk to the FBI people as to why
they objected, though?
Admiral Church. Not specifically, no, sir.
Senator Levin. It is hard for me to believe that it is, it
is DOD doctrine that they impersonate FBI agents. Are you
saying it is doctrine that they do that?
Admiral Church. No, sir, I am not saying that. I am saying
that doctrine in itself and interrogation in itself are
deceptive in that you are trying to get information from a
witness who does not want to give you that information. It
calls to point the basic elasticity of doctrine. One of the
doctrine techniques is ``fear-up harsh'' and, as many have said
before me, much of the expanded interrogation techniques could
easily have fit within that definition of doctrine, which is
why I make the case in the report that we need to clearly get
new doctrine out there that all of our interrogators
understand. That is the imperative piece, and doctrine that
will allow us to get the actionable intelligence that we need.
Senator Levin. Staying within the rules of law?
Admiral Church. Absolutely, sir.
Senator Levin. It is that elasticity which I am afraid was
stretched beyond the rule of law here and which has gotten us
in a lot of trouble as a Nation and our troops in the future in
some real threatening situations. That is really what the issue
is here.
The reference in the FBI document to the torture techniques
that they witnessed, I specifically want to ask you, did you
talk to the writers of that memo about what they witnessed and
described as torture techniques by DOD personnel?
Admiral Church. No, sir.
Senator Levin. Why not?
Admiral Church. Well, I got the information--we actually
even had a member of our team who was part of the Criminal
Investigative Task Force working with the FBI down there. So we
knew about this. We had the information. When we saw the memo,
we quickly reacted to see if in fact we had covered everything
that was in that memo. There was, as I mentioned, I hope, one
incident that we did not think had been followed up.
I would like to add, as you already know, that SOUTHCOM is
following up on the allegations and the current Naval IG has
already reviewed I believe 16,000 documents to try to trace
this back to make sure we do not have any gaps in that
information, Senator.
Senator Levin. There is a named person whose name is
redacted for us, and it seems to me a thorough investigation
would talk to the writer of those memos. That is just part of
thoroughness to me. You can say you think you covered it in
other ways. Maybe you did, but you do not know until you talk
to the people who wrote the memos, who saw what they described
as torture techniques.
So I think it is just satisfactory to simply leave it at
that and I cannot.
Thank you, Admiral.
Chairman Warner. Thank you, Senator Levin.
We have to immediately get to the vote. They are holding it
for us. I want the record to reflect that the charter given by
the Secretary of Defense to the Schlesinger commission--and by
the way, I in my modest career have never met a finer man than
Jim Schlesinger. I was privileged to serve under him as
Secretary of the Navy during the Vietnam War era. I have a
similar respect for his partner, the other Secretary of
Defense, and we will be in consultation with them.
But I read from the charter given by Rumsfeld: ``Issues of
personal accountability will be resolved through established
military justice and administrative procedures, although any
information you''--that is Schlesinger and Harold Brown and
others--``may develop will be welcome.''
I find on page 47 of the Schlesinger report some fairly
specific findings pursuant to that charter. For example: ``The
CJTF-7 deputy commander failed to initiate action to request
additional military police for detention operations after it
became clear there were insufficient assets in Iraq.'' There
are several others cited here. I will put them in the record in
their entirety.
[The information referred to follows:]
The Panel finds the following:
The CJTF-7 Deputy Commander failed to initiate action
to request additional military police for detention operations
after it became clear that there were insufficient assets in
Iraq.
The CJTF-7 C-2 Director for Intelligence failed to
advise the commander properly on directives and policies needed
for the operation of the JIDC, for interrogation techniques and
for appropriately monitoring the activities of Other Government
Agencies (OGAs) within the Joint Area of Operations.
The CJTF-7 Staff Judge Advocate failed to initiate an
appropriate response to the November 2003 ICRC report on the
conditions at Abu Ghraib.
Failure of the Combatant Command to Adjust the Plan
Once it became clear in July 2003 there was a major insurgency
growing in Iraq and the relatively benign environment projected for
Iraq was not materializing, senior leaders should have adjusted the
plan from what had been assumed to be a stability operation and a
benign handoff of detention operations to the Iraqis. If commanders
and. staffs at the operational level had been more adaptive in the face
of changing conditions, a different approach to detention operations
could have been developed by October 2003, as difficulties with the
basic plan were readily apparent by that time. Responsible leaders who
could have set in motion the development of a more effective
alternative course of action extend up the command chain (and staff),
to include the Director for Operations, Combined Joint Task Force 7
(CJTF-7); Deputy Commanding General, CJTF-7; Commander CJTF-7; Deputy
Commander for Support, CFLCC; Commander, CFLCC; Director for Operations
Central Command (CENTCOM); Commander, CENTCOM; Director for Operations,
Joint Staff; the Chairman of the Joint Chiefs of Staff; and the Office
of the Secretary of Defense. In most cases these were errors of
omission, but they were errors that should not go unnoted.
Chairman Warner. This committee will continue to work with
the Secretary of Defense, who has been extremely cooperative
throughout our work here in the committee. He was the first
witness. He stood up and said in his capacity as the ultimate
authority he takes his share of the accountability. I commended
him for that and still do. I know of a number of ongoing things
initiated by the Secretary and others under the administrative
and judicial procedures.
So there is much work yet to be done, but I think it is to
the credit of this great Nation that there have been 10 reports
on this very distressing chapter in our military history,
otherwise a military history that is envied by the whole world,
and as I mentioned in my opening statement, over a million men
and women in uniform have rotated in and out of the area of
responsibility (AOR) of Iraq and then more in Afghanistan, and
when you look at the small fraction of those who have been
adjudged guilty and are still in the process it shows that
these fine persons in uniform and others went there and
discharged those difficult and dangerous missions with great
integrity and in accordance with the rule of law as the best
they could understand it.
I thank you, Admiral. We will resume this hearing in closed
session in 222 Russell as soon as three consecutive votes are
finished.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John McCain
INTERROGATION TECHNIQUES
1. Senator McCain. Admiral Church, in December 2003, Senator
Lindsey Graham, Senator Maria Cantwell, and I visited the detainee
facility in Guantanamo (Gitmo). Subsequent revelations by the Federal
Bureau of Investigation (FBI) and others indicate severe issues with
detainees such as attempted mass suicides (as many as 25 detainees on
one day) occurred just 3 months prior to our visit, yet no mention of
the problem was made during our visit. Furthermore, recent revelations
of interrogation techniques where female interrogators smeared
menstrual blood, rubbed their bodies against detainees, wore skimpy
clothes, made sexually explicit remarks, touched detainees
provocatively, etc. were never described during our visit. The FBI
thought that these techniques diminished Muslim religious purity and
were improper. What do your findings show to demonstrate the reason why
these sexually suggestive tactics were by Department of Defense (DOD)
interrogators?
Admiral Church. Our investigation found two cases in which separate
female Army interrogators touched and spoke to detainees in a sexually
suggestive manner during interrogations at Gitmo. In one of the cases,
the interrogator smeared red ink (not blood) on a detainee, telling him
it was menstrual blood. In both cases, the soldiers evidently devised
the sexually suggestive tactics on their own initiative to gain
intelligence. Both interrogators were reprimanded for their actions
immediately after they took place. There was no policy, written or
otherwise, that approved the use of sexually suggestive interrogation
tactics.
2. Senator McCain. Admiral Church, what are your thoughts on the
problem and what purpose do you feel was accomplished by not informing
me of the problem?
Admiral Church. Our investigation did review detainee medical and
mental health care issues in general, and specifically at Gitmo. We
documented that there had been a spike in self-injurious behavior
involving 23 detainees between August 18 and 26, 2003. (Two of the 23
incidents were judged to be bona fide suicide attempts.) As detailed on
page 349 of my report, however, the medical staff assessed that some
detainees were engaging in such behavior to gain prolonged observation
at the more comfortable Detainee Hospital, and therefore implemented
mental health protocol changes in early 2004 that emphasized
evaluation-in-place for lower-grade self-injurious behavior. This
change dramatically reduced such episodes. No detainee has committed
suicide at Gitmo, and the most recent attempt that I am aware of took
place in January 2004.
Nevertheless, mental health of detainees has been a concern of both
the Commander, Joint Task Force (CJTF) Gitmo and the International
Committee of the Red Cross (ICRC). For example, during our first visit
to Gitmo in May 2004, 66 of the over 550 detainees (roughly 12 percent)
were receiving mental health services, with 7 housed in the psychiatry
cellblock for continuous observation.
I do not know why you were not informed of the spike in self-
injurious behavior or the reprimands for sexually suggestive
interrogation tactics during your December 2003 visit. In my view, you
should have been informed.
______
Questions Submitted by Senator James M. Inhofe
REVIEW OF MULTIPLE REPORTS AND INVESTIGATIONS
3. Senator Inhofe. Admiral Church, thank you and your staff for the
extensive work you did in compiling into one report all of the major
investigations that have inquired into detention operations and
detainee interrogation techniques. Your appearance here today will
serve to shed light onto an issue that has been misunderstood by many.
The U.S. Government currently maintains custody of approximately
550 enemy combatants in the global war on terrorism at Gitmo. Many of
these enemy combatants are highly trained, dangerous members of al
Qaeda, its related terrorist networks, and the former Taliban regime.
Our intelligence and law enforcement communities develop leads,
comprehensive assessments, and intelligence products based on
information the detainees provide. The information includes their
leadership structures, recruiting practices, funding mechanisms,
relationships, and the cooperation between terrorist groups, as well as
training programs, and plans for attacking the United States and other
countries. Further, as Coalition Forces in Afghanistan continue to
capture al Qaeda, Taliban, and anti-coalition militia fighters, Gitmo
detainees remain a valuable resource to identify forces that operate
against the freedom.
It is my understanding that detainees held in Iraq, at Abu Ghraib,
were either actively involved in operational planning for attacks
against our Coalition Forces there or had already participated in
attacks against our forces. They were working on behalf of former
Baathist now acting as insurgents or on behalf of terrorist leaders
from outside of Iraq such as Zawqari.
Based on the extensive knowledge that these detainees possess, it
is critical that we gain as much insight as possible into information
they have that will assist us in derailing the actions of those who
stand against freedom. Our military Services and our government have
policies and techniques that we use to gather this information. We
should ensure that these policies and techniques are employed. As we
discover that additional training, clarification, and adjustments are
needed in policies and techniques to give better guidance to our young
men and women, we should make these changes. As individuals fail to
follow these policies and techniques, we should investigate to ensure
we understand what has occurred and we must allow the military justice
system to deal effectively with them, as they have to this point and I
feel confident will continue to do so.
With your report, we have had about 10 major investigations into
this matter. Some in the media have denigrated the work of the leaders
in charge of the other reports. They have accused them of whitewashing
and stonewalling the truth.
Let me review some of the leaders who have headed up these
investigations:
1. General Don Ryder, U.S. Army
2. General Geoff Miller, U.S. Army
3. General Antonio Taguba, U.S. Army
4. General Paul Mikolashek, Army Inspector General (IG)
5. Generals Paul Kern, George Fay, and Anthony R. Jones
6. General Charles Jacoby
7. Secretary James Schlesinger, Secretary Harold Brown, the
late Rep. Tillie Fowler, and General Charles Horner
8. General Richard P. Formica
Now we have your report, Admiral Church. These officials, military
and civilian, represent over 300 years of service to our Nation. You
and your staff conducted over 800 interviews, reviewed over 3,000
documents, and talked to everyone you believed had information relevant
to your investigation. Some commentators have dismissed several of the
previous reports as ``whitewash'' or as cover-ups. Did you come across
anything that would cause you to believe or suspect that any of these
officials who conducted these investigations were pursuing an agenda
other than seeking the truth?
Admiral Church. Absolutely not.
CONFUSION IN INTERROGATION TECHNIQUES
4. Senator Inhofe. Admiral Church, in reading your report, it is
stated that there was confusion in the development of the interrogation
practices in Iraq and Afghanistan. Regardless of whether you are
talking about properly approved techniques or improperly approved
techniques, did you ever find anything that sanctioned the practices
that showed up in the infamous Abu Ghraib photos?
Admiral Church. No, I did not.
5. Senator Inhofe. Admiral Church, is it fair to say that whatever
confusion there might have been, no one could have reasonably believed
that what we saw in those infamous photos was in accordance with
approved practices?
Admiral Church. Yes, it is.
INTERROGATION TECHNIQUE RECOMMENDATIONS TO SECRETARY RUMSFELD
6. Senator Inhofe. Admiral Church, in the winter and spring of
2003, there was a working group, led by U.S. Air Force General Counsel
Mary Walker, that reviewed the law on interrogation practices and made
a recommendation to the Secretary of Defense (SECDEF) on what
techniques should be allowed at Gitmo. How many techniques did the
working group recommend and how many did the SECDEF approve?
Admiral Church. The working group recommended 35 techniques, which
excluded several techniques (such as ``water boarding'') that it had
considered early on but later determined to be unacceptable under U.S.
laws or policies. SECDEF approved 24 techniques, most of which were
taken directly from or closely resembled those in Field Manual (FM) 34-
52, the Army interrogation doctrine manual.
7. Senator Inhofe. Admiral Church, isn't it correct that the SECDEF
approved for use fewer than the total number of interrogation
techniques approved by the working group? In other words, his directive
was narrower than what the group concluded the law allowed?
Admiral Church. Yes, that is correct. SECDEF approved 24 of the 35
techniques recommended by the working group. Most of those 24
techniques were taken directly from or closely resembled those in FM
34-52, the Army interrogation doctrine manual.
______
Questions Submitted by Senator Edward M. Kennedy
CLASSIFICATION OF REPORTS
8. Senator Kennedy. Admiral Church, obviously, we must all be
sensitive of the need to keep matters of national security classified.
However, I am concerned that you did not provide an unclassified
version of your report beyond the executive summary. The executive
summary does not explain why the abuses occurred. Is there any reason
why you did not provide an unclassified version? I believe it is very
important to get this issue into the public arena.
Admiral Church. I did not generate an unclassified version of the
full report because much of the subject matter remains classified. The
Office of the Secretary of Defense (OSD) is now working to declassify
and/or redact the report as required to make the full version available
to the public. In addition, the unclassified Executive Summary was
intended to make my central findings immediately available to the
public. The section of the Executive Summary titled ``Underlying
Reasons for Abuse'' (pages 15-16) provides my best military judgment as
to the factors that may explain why abuse occurred. I do not present
additional factors in the classified report.
9. Senator Kennedy. Admiral Church, who classified the report and
why? Will you provide an unclassified version of the full report to the
public?
Admiral Church. The report is not classified in a ``blanket''
sense; rather, individual sections and paragraphs are classified as
appropriate based directly upon the classification of the sources
cited. The OSD is now working to declassify and/or redact the report as
required to make the full version available to the public. In addition,
the unclassified Executive Summary was intended to make my central
findings immediately available to the public.
HUMANE TREATMENT
10. Senator Kennedy. Admiral Church, you conclude that the
Pentagon's radical revision of its rules on interrogation had no effect
on our forces in the field, because President Bush had instructed the
military to treat detainees ``humanely.'' But the President's directive
did not apply to the CIA at all, and it contained a ``military
necessity'' exception that could be used to justify almost any abuse.
But the term ``humane'' is far too general and vague to guide soldiers
in the field. To do their duty, soldiers need specific guidance on how
to treat detainees and how to conduct interrogations. That's why in the
past, soldiers have had to follow the Army FM on Interrogations and
Army Regulations on Detention.
It's now clear that after September 11, DOD General Counsel William
Haynes and Justice Department (DOJ) lawyers threw the military's
existing rules and regulations out the window. In November 2002, DOD
General Counsel William Haynes advised Secretary Rumsfeld that it was
both legal and humane to use such tactics as forced nudity,
waterboarding to simulate drowning, threats to kill detainees' family
members, and aggressive military dogs. The next year, the Haynes
Working Group twisted the definition of torture beyond recognition, and
advised military personnel that they weren't required to comply with
the Federal prohibition on torture.
Obviously the vague and undefined Presidential directive to act
``humanely'' did not prevent such specific and extreme changes in
military rule. What were soldiers told when they asked if a particular
tactic was inhumane?
Admiral Church. Department of Defense (DOD) personnel are required
to comply with U.S. law (including the Uniform Code of Military Justice
(UCMJ)), interrogation doctrine (contained in Army Field Manual (FM)
34-52), and command approved interrogation guidance as appropriate, and
existing regulations on detention operations. The ``military
necessity'' principle does not permit servicemembers to violate the law
or DOD policy. DOD does not permit, tolerate, or condone torture by its
personnel under any circumstances. DOD policy is to treat all detainees
and conduct interrogations, wherever they may occur, in a manner
consistent with this commitment.
We found no evidence whatsoever that the DOD General Counsel ever
advised the Secretary of Defense that ``waterboarding,'' threats to
kill detainees' family members, or the use of ``aggressive'' dogs were
legal or humane interrogation techniques. In particular, based on the
General Counsel's recommendation, Secretary Rumsfeld specifically
rejected ``waterboarding'' and threats of pain or death to detainees or
their families (both of which had been proposed as Category III
techniques by the command at Guantanamo). In the November 27, 2002
Action Memo (declassified and released to the public on June 22, 2004)
in which he recommended the techniques that the Secretary approved on
December 2, 2002, the General Counsel stated that ``[w]hile all
Category III techniques may be legally available, we believe that, as a
matter of policy, blanket approval of Category III techniques is not
warranted at this time. Our Armed Forces are trained to a standard of
interrogation that reflects a tradition of restraint.''
We found no evidence that military personnel were ever advised (nor
did they believe) that they were not required to comply with the
prohibition against torture of the UCMJ.
11. Senator Kennedy. Admiral Church, the only official definition
of ``humane'' that I've heard from this administration is the one given
to us by Alberto Gonzales in January. He said that he defined ``humane
treatment'' as ``a basic level of decent treatment that includes such
things as food, shelter, clothing, and medical care.'' Isn't that
guidance inadequate for soldiers and interrogators in the field? It
doesn't say anything about physical abuse, or how detainees should be
treated during interrogation.
Admiral Church. No, the current guidance for interrogations is
adequate with regard to humane treatment. Although there is no single
agreed upon definition of ``humane treatment'' in relevant legal
authorities such as the Geneva Conventions and the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), it is clear to all that applicable authorities do not permit
physical abuse. For example, the Uniformed Code of Military Justice
prohibits maltreatment and abuse of detainees.
Further, Army Regulation 190-8, Enemy Prisoners of War, Retained
Personnel, Civilian Internees, and, Other Detainees (which applies to
all Military Departments), paragraph 1-5, provides for the humane
treatment of detainees. Also, Field Manual 27-10, the Law of Land
Warfare, paragraph 89, provides that prisoners of war will be treated
humanely. Field Manual 34-52, Intelligence Interrogation, Chapter 1,
also prohibits the inhumane treatment of detainees.
12. Senator Kennedy. Admiral Church, do you think that a definition
of ``humane treatment'' that just talks about detainees' living
conditions is enough?
Admiral Church. No, and this is not the situation in the Department
of Defense. The President articulated in the Military Order on
Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism, November 13, 2001, that detainees will be treated
humanely, including the following:
To be treated without any adverse distinction based on
race, color, religion, gender, birth, wealth, sex, or any
similar criteria;
Sufficient food, drinking water, shelter, clothing,
and medical treatment; and
Free exercise of religion, consistent with the
requirements of detention.
In addition, several DOD regulations and policies, pursuant to
applicable law (described on pages 29-34 of my report), prescribed
additional detainee protections over and above their living conditions.
13. Senator Kennedy. Admiral Church, who should be accountable for
what happened?
Admiral Church. Senior-level responsibility was addressed by Dr.
Schlesinger's Independent Panel to Review DOD Detention Operations. In
addition, the Army IG is conducting a number of reviews to assess the
individual responsibility of senior Army officers. The purpose of my
investigation was to provide data, which could then be used by the
appropriate authorities in assessing accountability. I firmly believe
that accountability must be determined in accordance with processes
established by laws and regulations.
______
Questions Submitted by Senator Daniel K. Akaka
INVESTIGATION TECHNIQUES
14. Senator Akaka. Admiral Church, your original tasking from the
SECDEF was to investigate detention operations at Gitmo. In that
investigation you indicated that there was no evidence of abuse. It has
been reported that in that investigation no detainees were interviewed.
My question to you is, if you did not interview any detainees at Gitmo,
how can you accurately assess the allegations of abuse?
Admiral Church. My original review of detainee operations at Gitmo,
completed in May 2004, found no evidence of noncompliance with DOD
orders and no evidence or suspicion of serious or systemic problems. It
did, however, note several infractions for which interrogators or
military police had been disciplined. My team also reviewed thousands
of pages of documents from the ICRC, which I found to be informative
and an effective conduit for detainees' concerns. I found that military
commanders and criminal investigative authorities were appropriately
investigating allegations of abuse relayed by the ICRC.
15. Senator Akaka. Admiral Church, since Secretary Rumsfeld
expanded the scope of your investigation to include operations in Iraq
and Afghanistan, did your panel then follow the same procedure?
Admiral Church. Yes, we did.
INTERROGATION TECHNIQUES
16. Senator Akaka. Admiral Church, you state in your report that
there was no official policy sanctioning detainee abuse in Iraq,
Afghanistan, or Gitmo. While there may not have been an official
policy, in December 2002 and again in April 2003 new interrogation
techniques were approved by the SECDEF, and were used at Gitmo. It is
my understanding that Major General Geoffrey Miller, former Commander
at Gitmo, was then assigned to Iraq and used techniques similar or
identical to those used at Gitmo. Would it be fair to say that
assigning the former Commander of Gitmo to Abu Ghraib sends a message
that the techniques used at Gitmo are approved methods of
interrogation?
Admiral Church. No, it would not. As described in my report, the
techniques approved for use at Gitmo in April 2003 were indeed
incorporated in Lieutenant General Sanchez's September 2003
interrogation policy for Iraq (which preceded Major General Miller's
July 2004 assignment as Deputy Commanding General for Detainee
Operations). However, General Miller had given the Gitmo techniques to
General Sanchez during his September 2003 visit to Iraq with the caveat
that the Geneva Conventions applied in Iraq, and that the techniques
would have to be assessed in that light. General Sanchez's legal staff
vetted the September 2003 interrogation policy for Geneva compliance
before its approval. We found no evidence that interrogators in Iraq
employed techniques other than those that they believed to fall within
either existing doctrine or interrogation policies explicitly approved
for use in Iraq. Interrogators also uniformly reported that they
understood that the Geneva Conventions applied in Iraq.
17. Senator Akaka. Admiral Church, earlier reports authorized by
the DOD provided very harsh assessments of private civilian contractors
at Abu Ghraib. Specifically, it was suggested that at least one
civilian contractor be fired for lying to investigators and for
allowing military policemen not trained in interrogation techniques to
facilitate interrogations that clearly equated to physical abuse. Would
you please tell the committee how extensive your investigation was with
regard to civilian contractors and what you found about their detainee
interrogation practices?
Admiral Church. We interviewed over 20 contract interrogators and
intelligence analysts, and examined laws and DOD policies applicable to
contract personnel. We found that, with limited exceptions (as in the
well-known cases of contractor-perpetrated abuse at Abu Ghraib),
contractor compliance with law and DOD interrogation policies was
satisfactory. We did not reinvestigate previous investigations'
conclusions regarding specific cases of abuse perpetrated by
contractors.
18. Senator Akaka. Admiral Church, we continue to have
investigations into detention procedures and detainee interrogation
techniques, that look at the same areas, ask the same questions, and
provide the same results. While there may be more formal guidance from
the DOD now on detention operations, this does not address issues such
as the CIA's unacknowledged practice of transferring suspected
terrorists to foreign countries for interrogation, or the DOD's
transfer of some prisoners to countries such as Pakistan, Morocco,
Egypt, Jordan, Syria, Saudi Arabia, and Kuwait. Will we ever get a
complete analysis and understanding of detention operations in Iraq,
Afghanistan, and Gitmo without conducting an investigation that has
full access to all the information from the DOD and the Intelligence
community?
Admiral Church. I was granted full access to all DOD personnel and
information in the conduct of my investigation, and I am confident that
my report represents the full range of data available within DOD as of
September 30, 2004. The independent activities of other government
agencies were beyond the scope of my investigation.
19. Senator Akaka. Admiral Church, I would like to follow up on
Senator Reed's question to you regarding whether you interviewed
Ambassador L. Paul Bremer, Administrator of the Coalition Provisional
Authority (CPA), for your report. I am concerned by your response that
you did not question Ambassador Bremer because he was attached to the
Department of State. As we know, Ambassador Bremer was the head of the
CPA, a division of the DOD, and as Administrator he reported directly
to the SECDEF. Given your own misunderstanding of the chain of command
in existence in Iraq at the beginning of the conflict until now, do you
believe that similar misinterpretations by other military personnel
could have contributed to the lack of understanding over authorized
interrogation techniques?
Admiral Church. The issue of whom Ambassador Bremer worked for has
been the point of much discussion. The May 9, 2003, appointment letter
from President Bush to the Honorable L. Paul Bremer directed that he
``serve as my presidential Envoy to Iraq, reporting through the
SECDEF.'' It also authorized him to ``oversee, direct, and coordinate
all United States Government programs and activities in Iraq, except
those under the command of Commander, U.S. Central Command.''
Consistent with this direction, we found no evidence that
Ambassador Bremer was ever involved, or perceived to be involved, in
the development or implementation of military interrogation techniques.
Furthermore, none of the investigations conducted on detention and
interrogation operations in the global war on terrorism found any
evidence of involvement by Ambassador Bremer in interrogation policy or
practices. Lieutenant General Sanchez, the senior military commander in
Iraq at the time, approved the interrogation policies. We found that in
cases where interrogators were not aware of the policies approved by
General Sanchez, they defaulted to their training, experience, and
existing interrogation doctrine (Army FM 34-52).
[Whereupon, at 11:36 a.m., the committee adjourned.]
THE INVESTIGATION INTO FEDERAL BUREAU OF INVESTIGATION ALLEGATIONS OF
DETAINEE ABUSE AT THE GUANTANAMO BAY, CUBA, DETENTION FACILITY
----------
WEDNESDAY, JULY 13, 2005
U.S. Senate,
Committee on Armed Services,
Washington, DC.
The committee met, pursuant to notice, at 9:40 a.m. in room
SD-106, Dirksen Senate Office Building, Senator John Warner
(chairman) presiding.
Committee members present: Senators Warner, McCain, Inhofe,
Roberts, Sessions, Talent, Chambliss, Cornyn, Levin, Kennedy,
Reed, E. Benjamin Nelson, and Clinton.
Committee staff members present: Judith A. Ansley, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Charles W. Alsup,
professional staff member; Regina A. Dubey, professional staff
member; Sandra E. Luff, professional staff member; David M.
Morriss, counsel; Lynn F. Rusten, professional staff member;
Scott W. Stucky, general counsel; Diana G. Tabler, professional
staff member; and Richard F. Walsh, counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Bridget W. Higgins, research
assistant; Gerald J. Leeling, minority counsel; Peter K.
Levine, minority counsel; and William G.P. Monahan, minority
counsel.
Staff assistants present: Andrew W. Florell, Catherine E.
Sendak, and Nicholas W. West.
Committee members' assistants present: Christopher J. Paul
and Paul C. Hutton IV, assistants to Senator McCain; John A.
Bonsell and Mark Powers, assistants to Senator Inhofe; Chris
Arnold, assistant to Senator Roberts; Arch Galloway II,
assistant to Senator Sessions; Clyde A. Taylor IV, assistant to
Senator Chambliss; Meredith Moseley, assistant to Senator
Graham; Russell J. Thomasson, assistant to Senator Cornyn;
Mieke Y. Eoyang, assistant to Senator Kennedy; Elizabeth King,
assistant to Senator Reed; William K. Sutey and Dan Shapiro,
assistants to Senator Bill Nelson; Eric Pierce, assistant to
Senator Ben Nelson; Mark Phillip Jones and Kimberly Jackson,
assistants to Senator Dayton; and Andrew Shapiro, assistant to
Senator Clinton.
OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN
Chairman Warner. The committee meets this morning to
receive the testimony of the U.S. Southern Command (SOUTHCOM)
investigation into the e-mails that came to light as a
consequence of a Freedom of Information Act (FOIA) request in
December 2004. The SOUTHCOM Commander, General Craddock, tasked
first General Furlow and then subsequently General Schmidt to
undertake the investigation, and we will put into the record,
gentlemen, the order that you signed out, General Craddock, to
have this investigation done at the conclusion of my remarks.
We welcome our witnesses this morning: General Bantz J.
Craddock, USA, Commander of the U.S. Southern Command;
Lieutenant General Randall M. Schmidt, USAF, Senior
Investigating Officer; and Brigadier General John T. Furlow,
USA, Investigating Officer. We thank our witnesses and all
others who are in attendance here this morning.
In December 2004, pursuant to the allegations of detainee
abuse at Guantanamo Bay (Gitmo) which were brought to light
pursuant to a FOIA request for the Federal Bureau of
Investigations (FBI) e-mails, General Craddock, you took very
prompt action and convened this panel to investigate.
This is the 12th major senior-level review of detainee
operations and allegations of detainee abuse that has completed
by various elements of the Department of Defense (DOD) and
indeed an independent panel, the Schlesinger-Brown panel. In my
judgment, the Department has performed credibly in
investigating allegations of abuse and failure to follow
professional standards and the law and regulation in these
instances.
The allegations of abuse referred to in the FBI e-mails
occurred from the period of August to December 2002, and had
come to the leadership of the Joint Task Force (JTF) Gitmo and
SOUTHCOM and were in fact under investigation at that time.
Appropriate procedural and disciplinary actions have been taken
in some of the cases. This morning General Craddock will
describe in detail the 28 e-mails which were turned into the
Director of the FBI in response to his request to his agents
and detail each of them as they were examined.
The report before us this morning by General Craddock and
his team indicated in three instances, just three instances,
interrogations at Gitmo used techniques that violated Army
doctrine and guidance from DOD. Now, this apparently is three
out of some 24,000 interrogations that were conducted at Gitmo
over the past 3 years.
Now, General, we will also ask you to brief the committee
in some detail--and by the way, colleagues, we will have this
open hearing, which Senator Levin and I felt was essential, and
this will be followed by a closed hearing. But in the course of
the open hearing we will ask you, General Craddock, to give us
your explanation for in effect reversing the finding of your
two colleagues, Generals Schmidt and Furlow, and I quote that
finding in the report: ``Major General Miller should be held
accountable for failing to supervise interrogation of ISN-
063''--that is a high-value detainee--``and should be
admonished for that failure.'' That is on page 2 of the
Schmidt-Furlow report. You, General Craddock, as the convening
authority and the final reviewer, did not agree with this
finding and you will give us your thoughts on that.
I feel very strongly that the Department and other entities
which have examined this whole series of incidents at the
prison, it clearly indicates that this Nation is a nation of
laws and it will not tolerate inappropriate behavior by members
of the Armed Forces or anyone else, and this Nation will
investigate allegations of wrongdoing and, in accordance with
due process, if persons are found who have violated those laws
they will be held responsible. This report is another very
important step in that direction.
I think that will conclude my opening remarks.
[The information referred to follows:]
Chairman Warner. Senator Levin.
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. Thank you, Mr. Chairman, for convening the
hearing.
Let me join you in welcoming our witnesses here today to
discuss the results of the investigation of Generals Schmidt
and Furlow into allegations of abuses at Gitmo, more
specifically the allegations contained in specific e-mails from
FBI agents at Gitmo witnessing interrogation practices of DOD
intelligence personnel. These FBI e-mails, which came to light
in December of last year following a FOIA request spoke of DOD
interrogators' ``torture techniques'' and ``coercive techniques
in the military's interviewing toolkit.'' One FBI agent at the
time expressed alarm over DOD interrogation plans for one Gitmo
detainee, saying, ``You won't believe it.'' Subsequent e-mails
described abuses that FBI agents had witnessed, including
detainees being chained in a fetal position on the floor for 18
to 24 hours at a time, having urinated and defecated on
themselves, and being subjected to extreme cold.
The Schmidt-Furlow report confirms that detainees were
subjected to ``degrading and abusive'' treatment in the course
of interrogations at Gitmo. The report finds the use of
techniques such as ``short-shackling'' in a fetal position for
hours at a time, or using military working dogs to intimidate
detainees during interrogation sessions, or a female
interrogator rubbing up against a detainee's back and running
her fingers through his hair as a form of ``gender coercion.''
It is clear from the report that detainee mistreatment was
not simply the product of a few rogue military police on a
night shift. Rather, this mistreatment arose from the use of
aggressive interrogation techniques. The purpose of those
activities, whether authorized or not, was to obtain
intelligence.
The report of Generals Schmidt and Furlow does not resolve
a number of critical questions surrounding the military's
interrogation of detainees at Gitmo.
From the FBI documents released under the FOIA request, we
know that FBI concerns and objections went beyond the specific
allegations of abuse. The FBI agents questioned not only the
effectiveness but the ``propriety'' of DOD's aggressive
interrogation techniques. The report does not address those
concerns. As a result, the Schmidt-Furlow report does not
examine the ``heated'' debate between FBI agents and DOD
commanders at Gitmo, which was about propriety and
effectiveness. Their report does address whether techniques
were authorized or not authorized and found that some were and
some were not. But their conclusions on the most egregious
techniques remain classified.
So from what we can determine, they do not look, again, at
propriety or effectiveness of aggressive interrogation
techniques, but rather at the authorization or lack of
authorization of the use of those techniques. The FBI was so
concerned about coercive DOD interrogation techniques that its
agents at Gitmo were told to ``stand clear'' when military
intelligence took over an interrogation. The report does not
shed light on those discussions or what, if any, follow-up to
those discussions was made. Nor does the report include
documents related to these discussions, such as a May 30, 2003,
electronic communication (EC) by FBI agents at Gitmo which,
according to another FBI document, summarizes the FBI
objections and includes as attachments a number of military
documents discussing the authorization to use aggressive
techniques. This committee needs to have the FBI documents
relating to DOD intelligence techniques used at Gitmo, which
FBI agents at the time believed were coercive or abusive.
Following an earlier briefing on a related subject, I requested
that FBI Director Mueller provide those documents.
In addition, the report itself states that its
investigation did not attempt to review the legality of
interrogation techniques approved by the Secretary of Defense
(SECDEF). The fact that a technique may have been approved does
not resolve the question of its legality.
There is a confusing aspect to the report which highlights
some of these omissions. The report states that the current
guidance for Gitmo approved by the SECDEF fails to define the
term ``humane treatment'' and it recommends that this question
be taken up by future policy review. So far so good. But the
report nonetheless goes on to state that ``there was no
evidence of . . . inhumane treatment.''
This is seemingly inconsistent with the absence of a
definition of ``humane treatment.'' But to compound the
confusion, the report states that it did find ``degrading and
abusive treatment.'' First saying that there is an absence of a
definition of ``humane treatment,'' but then saying that
degrading and abusive treatment is not the same as inhumane
treatment is, frankly, truly a head-scratcher.
We are left once again also with a lack of accountability
for the confirmed mistreatment of detainees. Generals Schmidt
and Furlow recommended that Major General Miller be held
accountable for ``failing to supervise the interrogation of one
high-value detainee'' and ``be admonished for that failure.''
However, General Craddock, who is with us this morning, the
U.S. SOUTHCOM Commander, disapproved that recommendation.
The recommendations of Generals Schmidt and Furlow include
the need for a ``policy-level review'' regarding the ``status
and treatment of detainees'' other than prisoners of war. They
also call for a review of interrogation techniques and the role
of military police in ``setting the conditions'' for subsequent
interrogations. I wholeheartedly agree with Generals Schmidt
and Furlow. Their recommendations, in my judgment, reinforce
the need to establish an independent commission to address the
issues left unaddressed by this report and a number of other
issues which have been identified which have so far not been
addressed by various inquiries and investigations. The very
creation of such an independent commission will help protect
our soldiers should they ever end up in enemy custody, by
showing the world that we are determined that our detention and
interrogation policies reflect the values that we cherish as
Americans.
Again, I welcome the testimony and look forward to it.
Chairman Warner. Thank you, Senator.
I would like to also bring out that there were some 24,000
interrogations that were examined by this team and only a very
few fall into the category of violations to Army doctrine.
Senator Levin. Just on that point if I could, Mr. Chairman.
Chairman Warner. Yes.
Senator Levin. My understanding is that 24,000
interrogations were not investigated by this panel, but the e-
mails of the FBI were the subject of their inquiry.
Chairman Warner. We will bring clarity to that in the
course of the hearing.
But I think we have to always be mindful of the fact that
we are fighting a war and the fact that some very few
individuals, whether it was Abu Ghraib or here, did violate
Army doctrine and other rules and regulations should in no way
reflect adversely upon the bravery and the courage of the men
and women of the Armed Forces fighting terrorism the world
over.
Senator Levin. I think there is a real consensus on that
point. I could not agree with you more, Mr. Chairman.
Chairman Warner. Thank you.
General Craddock, glad to hear from you.
STATEMENT OF GEN BANTZ J. CRADDOCK, USA, COMMANDER, U.S.
SOUTHERN COMMAND; ACCOMPANIED BY LT. GEN. RANDALL M. SCHMIDT,
USAF, SENIOR INVESTIGATING OFFICER; AND BG JOHN T. FURLOW, USA,
INVESTIGATING OFFICER
General Craddock. Thank you. Chairman Warner, Senator
Levin, distinguished members of the committee: Thank you for
the opportunity to appear before you today to brief you on the
results of the Army Regulation (AR) 15-6 investigation that I
directed into allegations of detainee abuse at our Gitmo
detention facility.
As Commander of United States SOUTHCOM, I am responsible
for ensuring that detention and intelligence operations at JTF
Gitmo meet the high standards that our Nation expects from its
military. I want to make it clear that I have full faith and
confidence in the fine work that the servicemembers and the
leaders of JTF Gitmo are doing each and every day for our
Nation. Their work contributes to our Nation's safety and their
adherence to the highest standards of humane treatment of the
detainees under their charge is lauded by all who visit the
facility.
I would also like to point out that the operations at Gitmo
are still providing intelligence that supports the day-to-day
operations of our warfighters engaged in the global war on
terrorism, are helping our allies and partners in their fight
against terrorists, and are keeping dangerous enemy combatants
off the battlefield.
Of the more than 70,000 detainees who have been captured in
the global war on terror, less than 800 have been sent to Gitmo
because of the threat they posed and the intelligence they
possessed. Today approximately 520 detainees remain at Gitmo
and approximately 235 have been released or transferred to the
custody of other countries because they no longer pose a threat
or they no longer have intelligence value.
Today we have in our custody at Gitmo terrorist trainers,
bomb makers, terrorist recruiters, facilitators and financiers,
Osama bin Laden's bodyguards, and would-be suicide bombers.
Through them we have learned the organizational structure of al
Qaeda and other terrorist groups, the extent of the terrorist
presence in Europe, the United States, and the Middle East, the
methods of and location of terrorist recruitment centers, how
operatives are trained, and al Qaeda's efforts to acquire
weapons of mass destruction.
One enemy combatant has provided insights into al Qaeda
pre-operational planning for the 11 September 2001 attacks, to
include methods and criteria for recruiting operatives for the
attacks and the logistics involved in carrying them out. He
described the facilitators he met along the way, the methods of
financing the operation, the way he obtained his U.S. visa, and
the logistics involved in traveling to the United States and
communicating with his handlers along the way.
This particular detainee, Mohammed al-Qahtani, has during
his interrogation sworn his loyalty to Osama bin Laden. He was
to take part in the September 11 attacks, but the INS blocked
his entry into the United States in August of that year at the
Orlando International Airport.
He was captured in December 2001 on the Afghanistan-
Pakistan border with other al Qaeda members and brought to
Gitmo in February 2002. In July 2002 a fingerprint match from
the INS verified Qahtani's presence in Orlando prior to the
September 11 attacks and increased interest in getting him to
reveal what he might know about future attacks planned around
the 1-year anniversary of September 11.
In the fall of 2002, Qahtani successfully resisted all
interrogation efforts using standard criminal investigation
techniques. This led the investigators at Gitmo to request the
approval of more aggressive interrogation techniques, which
were approved by higher authority. During Qahtani's
interrogation from November 2002 through January 2003, the
application of these techniques by the JTF interrogators led to
breaking Qahtani's resistance and to solid intelligence gains.
These and other intelligence gains come only through
persistence, patience, and vigilance--diligence, excuse me,
diligence. These traits, along with the highest standards of
professional conduct, are the hallmarks of the men and women
serving our Nation today as part of JTF Gitmo.
Now let me address the investigation. The allegations in
the FBI e-mails came to light as the result of the public
release of a series of FBI e-mails that contained these
allegations. After a review of these e-mails following their
public release in December of last year, I determined that the
allegations merited a detailed examination in order to
establish the truth and ascertain what, if any, actions needed
to be taken.
I ordered the AR 15-6 investigation and appointed Brigadier
General John Furlow, the Deputy Commander for my Army component
command, as the Investigating Officer. Brigadier General Furlow
was directed to address the following allegations that were
drawn from the FBI e-mails:
One, that military interrogators improperly used military
working dogs during interrogation sessions to threaten
detainees or for some other purpose;
Two, that military interrogators improperly used duct tape
to cover a detainee's mouth and head;
Three, that DOD interrogators improperly impersonated FBI
agents and Department of State officers during the
interrogation of detainees;
Four, that on several occasions DOD interrogators
improperly played loud music and yelled loudly at detainees;
Five, that military personnel improperly interfered with
FBI interrogators in the performance of their FBI duties;
Six, that military interrogators improperly used sleep
deprivation against detainees;
Seven, that military interrogators improperly chained
detainees and placed them in a fetal position on the floor and
denied them food and water for long periods of time; and
Eight, that military interrogators improperly used extremes
of heat and cold during their interrogation of detainees.
Subsequent to his initial appointment, I also directed
General Furlow to investigate two additional allegations
concerning a female military interrogator performing a lap
dance on a detainee and the use of red ink as fake menstrual
blood during an interrogation. These allegations came from a
separate document. I did not limit General Furlow to these
allegations. I gave him the flexibility to bring into his
investigation any additional allegations of detainee abuse that
he might discover during the course of his work.
On 28 February 2005, after 2 months of investigation,
General Furlow advised me that he needed to interview officers
who were senior in grade to him. As a result I appointed
Lieutenant General Mark Schmidt, the Commander of my Air Force
component command, as the Senior Investigating Officer.
Generals Schmidt and Furlow are here with me today and in a
moment they will brief you on the conduct and findings of their
investigation. Their report reflects the combined findings and
conclusions of the initial investigative efforts and the
combined investigative efforts of both of these officers.
General Schmidt submitted his initial report to me on the
1st of April. After review, I directed on the 5th of May that
the investigation be reopened to consider two memos from the
December 2004 time frame that had been recently discovered
regarding a special interrogation plan. While the investigative
team was completing this additional task, I further directed on
the 2nd of June that General Schmidt address a second set of
new allegations made by a detainee that also concerned a
special interrogation plan.
General Schmidt completed his investigation on the 9th of
June, at which time my staff judge advocate began a thorough
legal review of the report. I have completed my personal review
of the report and taken my actions with regards to the report's
findings and recommendations. I will inform you of my actions
after General Schmidt and General Furlow brief you on their
investigation and findings.
So I will turn it over to General Schmidt and General
Furlow.
Chairman Warner. General Schmidt.
General Schmidt. Thank you, sir. Senator Warner, Senator
Levin, distinguished members of the committee: Thank you for
the opportunity to brief you on the results of this AR 15-6
investigation into the FBI allegations of detainee abuse at
Gitmo.
On December 29, 2004, General Furlow was appointed. He
brought three U.S. Army staff members with him to help do this
investigation. Then on February 28 I included my staff judge
advocate and two other action officers, and we were the basic
eight members that completed this investigation.
I provided to all the members a copy of the report, and I
apologize for its length. There are about 21 pages. But if I go
through the report I will refer to those pages as I talk about
the conduct of the report, what we found, and what our
recommendations and findings were. That would be helpful. So I
will refer to those pages for the members.
Chairman Warner. We will put the complete statements and
reports of each of the investigating officers in the record.
General Schmidt. Thank you, Mr. Chairman.
Slide 2, you can see the purpose, as was stated by General
Craddock, was to investigate those FBI allegations into the
misconduct. Now, I will tell you it was a very focused
investigation. It was about the FBI allegations. But we were
also asked to look at whatever else we found in the way of
discovery that led to detainee abuse. So that was our charter.
We were also asked to determine accountability for
substantiated violations, and then in the end I was to
recommend action at the appropriate level for any
accountability that could be identified for substantiated
violations.
On Slide 2, as General Craddock has said, the e-mails from
the FBI generated this investigation. The FBI Inspection
Division sent an e-mail survey out to 493 FBI personnel who had
been assigned to Gitmo from 9 September 2001 to 9 July 2004. In
response to those surveys, 408 FBI agents had nothing to
report. There were 59 who came back with no responses and that
was determined by the FBI to be a negative reply as well. 26
agents replied that they had some indication or knowledge that
they had perceived aggressive treatment or aggressive
interrogation techniques that would not be consistent with FBI
interrogation techniques and they reported those back to the
FBI.
Of those, there were multiple reports of the same type of
event and we boiled those down to eight, and we split one
because it involved two different categories and we called it
nine. So out of the 26 that came back positive, we looked at 9.
Slide 4, please.
The scope of the review. You can see on the slide it was
fairly comprehensive, even though this was a focused report.
The investigation was directed and accomplished under the
informal procedures of the AR 15-6. This AR 15-6 investigation
centered on the FBI alleged abuses occurring during
interrogation operations. We found incidents of abuse during
detention operations, all of which were appropriately addressed
by the command.
The investigation team conducted a comprehensive review of
thousands of documents and statements pertaining to allegations
of abuse occurring at Gitmo, to include the complete medical
records of the subjects of the first and second special
interrogation plan. The team interviewed 30 FBI agents,
conducted interviews of over 100 personnel from 6 January 2005
to 24 March 2005, and had access to hundreds of interviews
conducted by several recent investigations. These interviews
included personnel assigned to Gitmo, U.S. SOUTHCOM, the Office
of the Secretary of Defense during the tenure of JTF's 160,
170, and Gitmo. It included 76 DOD personnel, to include every
general officer who commanded the Task Force 160, 170, or the
JTF Gitmo. Additionally, we considered abuse allegations made
by the two high-value detainees themselves, as General Craddock
has said. The investigation team attempted to determine if the
allegations alleged by the FBI, in fact, occurred.
During the course of the follow-up investigations, the AR
15-6 team also considered allegations raised specifically by
the detainees who were the subject of those plans. The
investigating team applied a preponderance standard of proof
consistent with guidance contained in AR 15-6. Much of the
testimony was obtained from witnesses who had served as much as
3 years earlier and sometimes for 45 days or less. Civilian
witnesses were not required to cooperate, nor under subpoena to
answer questions.
The team also applied guidance contained in Field Manual
(FM) 34-52, Commander of U.S. SOUTHCOM, and SECDEF memorandums
authorizing special interrogation techniques if deciding if a
particular interrogation approach fell properly within an
authorized technique. In those cases in which the team
concluded that the allegation had in fact occurred, the team
then considered whether the incident was in compliance with
interrogation techniques that were approved either at the time
of the incident or subsequent to the incident. In those cases
where it was determined the allegation occurred and to not have
been an authorized technique, the team then reviewed whether
disciplinary action had already been taken and the propriety of
that action. On 28 March 2005, General Craddock asked me to
determine accountability for those substantiated violations
that had no command action taken.
We did not review the legal validity of the various
interrogation techniques outlined in the Army FM 34-52 or those
approved by the SECDEF.
If you to go Slide 5, please. This is a summary of findings
and I will go through the findings item by item in detail in
the following slides. You can see in the nine FBI allegations
two were unsubstantiated; we found no basis for those
allegations. Two were substantiated and in fact were not
authorized. Five were substantiated; however, they were
determined to be authorized under the current guidance.
Interrogation of a particular ISN-063--and this is one
person--in our judgment resulted in abusive and degrading
treatment, and that was determined by the cumulative effect of
creative, persistent, and lengthy interrogations which resulted
in that determination.
The third bullet: There was a threat to the second high-
value detainee that was discovered during the investigation.
As the bottom line, though, we found no torture. Detention
and interrogation operations were safe, secure, and humane.
Slide 6. To the unsubstantiated allegations: On the left-
hand column on your slide you will see an asterisk. Any of the
allegations that we discuss in the briefing that have an
asterisk relate to the FBI allegations. Those that are not
relate to discovery events.
Chairman Warner. General, we do not have page numbers on
our copy.
General Schmidt. I am sorry, sir, but at the very bottom of
the right there is a faint number, the very bottom of the
right-hand part of the slide.
Chairman Warner. Oh, I see. Well, that is an unusual way to
do it. I see it now, all right.
General Schmidt. I am sorry, sir.
Chairman Warner. We are not holding you responsible, but we
thank you for bringing it to my attention.
General Schmidt. Yes, sir.
I am currently briefing from Slide 6. Reference to A:
Investigation revealed that interrogators impersonated FBI
agents and we believe that some of the FBI agents characterized
this as interference. All testimony indicated the FBI
impersonations were isolated and they were stopped upon FBI
request. Further, we could find no FBI agent that could cite an
actual example of interference with their mission.
Reference to the allegation that was unsubstantiated in B:
Regarding the allegation by an agent she observed a detainee to
be deprived of food and water. We considered both the statement
she made on 12 July 2004 e-mail and her 9 September FBI
telephone interview. We made several efforts to conduct our own
interview, but our FBI liaison continually advised us that she
was unavailable. During the course of our investigation, we
were unable to corroborate any allegations that detainees had
been denied food or water.
Also, because of the inconsistencies in that agent's
testimony and the lack of any other corroboration, we were
unable to substantiate the second allegation.
To Slide 7. It is very important, I think, that we
understand what we used as the authorities. FM 34-52 is the
baseline providing doctrinal guidance, techniques, and
procedures governing employment of interrogators as human
intelligence (HUMINT) collection assets. This was all used and
was in force at the time Gitmo interrogation operations began
in March 2002.
Slide 8. Due to the difficulties, as General Craddock said,
of interrogating a single high-value detainee, ISN-063, JTF
Gitmo requested on 11 October 2002 additional techniques. As
you look at that slide, all of the category 1, category 2, and
category 3 techniques were on the list requested by the JTF. On
December 2 the SECDEF approved the ones that have the green
check marks. You can see it is all of the category 1, category
2, and only one of the category 3. After approximately 45 days,
all category 2 and category 3 techniques were rescinded.
Next slide, Slide 9. On April 16, the SECDEF approved these
interrogation techniques and this is the sole authority in
existence today. The FM 34-52 is used as a guide. As you look
at the slide you will notice that B, I, O, and X are
highlighted. Those techniques, if they are to be used, require
the showing of military necessity and advance notice to the
SECDEF. These are in force today.
Slide 10. I put a slide together that just shows that in a
more concise way. But I have highlighted a basic premise and
guidance that has been inherent in every change of guidance and
policy that has come down, and that is the baseline of humane
treatment of all detainees.
Chairman Warner. General, the committee will ask that you
provide for the record first, referring to Slide 8, the green
check marks all approved by SECDEF. Then in what form did he
rescind those? By written communication, I presume?
[The information referred to follows:]
The Secretary of Defense memorandum dated December 2, 2002, which
approved the techniques outlined in slide 8 was exhibit #15 of the Army
Regulation 15-6 Investigation Report into FBI Allegations of Detainee
Abuse dated April 1, 2005, (amended June 9, 2005) which was provided to
the committee.
General Schmidt. That is affirmative, sir.
Chairman Warner. Can we have copies of that written
communication?
General Schmidt. Yes, sir, we will provide those to you.
[The information referred to follows:]
The Secretary of Defense memorandum dated January 15, 2003, which
rescinds the December 2, 2002, memorandum was exhibit #16 of the Army
Regulation 15-6 Investigation Report into FBI Allegations of Detainee
Abuse dated April 1, 2005, (amended June 9, 2005) which was provided to
the committee.
Chairman Warner. Now, was that written communication
different than the memo of 16 April 2003? Is that a separate
document?
General Schmidt. It is a separate document, also written,
and we can provide that for the record as well.
Chairman Warner. All right, thank you.
General Schmidt. As I move, humane treatment again being
the baseline of any issuance of policy and guidance regarding
interrogation.
To move to Slide 11----
Chairman Warner. Before we leave 9, we will need to have an
amplification of your note there that techniques B, I, O, and X
require showing of military necessity and advance notice. The
full document that is behind that, we will need that also.
General Schmidt. Yes, sir, we will do that.
[The information referred to follows:]
The Secretary of Defense memorandum dated April 16, 2003, which
outlines the requirement to show military necessity was exhibit #17 of
the Army Regulation 15-6 Investigation Report into FBI Allegations of
Detainee Abuse dated April 1, 2005, (amended June 9, 2005) which was
provided to the committee.
General Schmidt. On Slide 11, I thought it would be
illustrative to understand how the broad guidance or techniques
that were available to the JTF, not directed to use but were
available for the JTF Gitmo to use, on this particular
detainee, how it moved from a high-order, fairly benign looking
technique into an application that you will see later in the
briefing that got very specific.
On Slide 11 it says ``FM 34-52 has an example of a
technique called `futility.' It's intent is for the
interrogator to convince the source that resistance to
questioning is futile.'' That guidance is now an approved
technique chosen by the JTF. The process it goes through to be
used--there is an interrogator, normally a noncommissioned
officer (NCO), who constructs a written interrogation plan that
is vetted through a team chief and an intelligence control
element supervisor, which could be Defense Intelligence Agency
(DIA) or an officer at the O-5 or GT-14 level. Then, the plan
is approved and vetted through that level, and then the
interrogation is conducted with a translator in consultation
possibly with another analyst.
The Gitmo example that I put at the bottom there is for
futility, again convincing the source that resistance is
futile, tell the detainee about how al Qaeda is falling apart,
talk about how everyone has been killed or captured, and tell
him what we know about him so that he feels that he has already
been exploited at some point and it is futile to withhold
information.
However, as it gets down to the interrogation room that may
be, it may involve gender coercion via some form of domination.
The detainee does not want to hear this and he does not want to
hear it from a woman. You will see that being straddled, not
touched, massaged, or possibly mild non-injurious touching,
such as putting perfume on the arm and that sort of thing,
invades a detainees personal space. This is part of how they
make the futility element work, with this more aggressive
technique.
Chairman Warner. Now, all of those actions would be done by
a female?
General Schmidt. That could have been done by a female. In
this case it was, and we will talk about that specific
interrogation. This is an example how top-down policy was
applied at Gitmo.
On the next page there is a second example, also taken from
FM 34-52 again. Example was ``Ego Down.'' That is an approach
based on attacking the source's sense of personal worth. Again,
the same process: from the NCO, vetted through about the O-5,
GT-14 level, and then the interrogation is conducted with
enlisted personnel.
To bring the ego down, in the Gitmo application example the
detainee was told that his mother and sister were whores, he
was forced to wear women's lingerie, there were multiple
allegations of homosexuality, and he was told that his comrades
were aware of that. He was forced to dance with a male
interrogator, subject to strip searches for control measures,
not for security, and he was forced to perform dog tricks--all
this to lower his personal sense of worth.
That is from the higher order technique down to an
application. Somewhere in there there has to be a translation
and that is where we started looking for accountability, in the
translation from the high order example of a technique to the
application, and we will go through those, sir, as we go
through the briefing.
As we go to Slide 13, we begin to talk about the
allegations. Again, on the left-hand side of the briefing if
you see an asterisk that relates directly to something that was
observed by an FBI agent that did not conform to FBI protocol
for interrogation, which they found to be aggressive.
We found two substantiated allegations to be not
authorized. The chaining of detainees to the floor, they were
short-shackled to the floor in the interrogation room. Chaining
detainees in this manner was used as a force protection measure
in the early stages of operation. It is now specifically
prohibited by Gitmo standard operating procedures.
We also determined that the chaining to the floor, the
short-shackling, where the handcuffs are put down at the floor
level, was only done briefly, it was done as a force protection
measure, and it was never done in the interrogation,
``briefly'' meaning awaiting interrogation. That has now been
stopped. So that was substantiated.
This was not construed to be a stress position and it was
not considered to be overly abusive. There was no injury, there
was no pain involved in this. It was a force security measure.
On the second one, an interrogator directed the use of duct
tape to quiet a detainee. This was not authorized. In this
case, a detainee was resisting interrogation by continuous
chanting. According to witnesses, one was chanting a resistance
mantra, another one was chanting things from the Koran. At the
direction of a civilian intelligence control element chief,
tape was used to quiet the detainee. This intelligence chief
was verbally admonished by the Judge Advocate General (JAG)
onsite at Gitmo.
Slide 14. This slide refers to the general population, what
we found, and does not necessarily apply to ISN-063. We will
treat him independently and another, second high-value
detainee. In the general population, the first four, A, B, C,
and D on your briefing on Slide 14, were alleged by the FBI.
The yelling, the loud music, we found that to be substantiated,
did happen, and it was authorized under the FM 34-52 under the
technique of futility.
Under B, impersonation of FBI and Department of State
agents was authorized under the Secretary of Defense action
memo in December 2002 under category 1, deception.
C, the air conditioners, was not authorized prior to 16
December 2003 under environmental manipulation, but it was
authorized under the SECDEF 16 April 2003 memo. Environmental
manipulation was approved as an appropriate and humane
interrogation technique.
D, disrupt sleep patterns. That was authorized by SECDEF 16
April 2003 memo, sleep adjustment. Now, some of these events
happened before 16 April, but if they were judged to be
appropriate as a technique in this case at that time we found
that they should have been appropriate prior.
E, the female interrogator approached detainee from behind,
rubbed his back, whispered in his ear, and ran fingers through
his hair; that was authorized by the FM under the futility
technique.
F, the female interrogator put perfume on a detainee's arm;
also authorized under futility, also authorized under the
action memo from the SECDEF under mild, non-injurious physical
contact.
The last one, G, under substantiated findings, involved the
case of the female interrogator told the detainee that the red
marking on her hand was menstrual blood and then wiped her hand
on the detainee. This was a not authorized event. It was a
spontaneous act of revenge by the interrogator. She had been
spit on by the detainee. She left the room. She was angry. She
put some marker on her hand, walked back in, put it on him, and
said: You know what that is? He goes: No. She told him, and it
in fact unsettled him.
She was verbally reprimanded, removed from interrogation
duties for an unspecified time--we determined about 30 days--
she was retrained, and then she was reinstated.
We listed these female coercive substantiated findings
because we needed to dispel the idea that there had been a lap
dance committed, and we could find no evidence that that ever
occurred. But there was enough of these coercive sort of things
with female invasion of space that that could have been
interpreted by an FBI agent. So we looked at all of these.
Slide 15, please. Now we get to the isolated case, and this
is where most of the findings we have about, that we classify
as abusive or degrading treatment are concerned, with ISN-063.
You will see on Slide 15 this is not a good person. This is not
a person that we have any compassion for and it was difficult
to find any pity for this man.
A Saudi citizen and an al Qaeda operative. Denied entry
into the U.S., as General Craddock said, and it was just a
matter of a sharp agent that kept him from entering the United
States at Orlando. He was captured in Afghanistan, he came to
Gitmo in February 2002. He admitted to being the 20th hijacker
and he expected to fly on United Airlines Flight 93.
He proved to have intimate knowledge of future plans. He
successfully resisted standard interrogation techniques at
Gitmo for 8 months and he is the genesis for the request by the
JTF at Gitmo for more techniques that might be able to get past
his resistance training.
Slide 16, referencing ISN-063, and this is all about this
one individual. A, B, and C, as you can see, involved gender
coercion, invasion of space, and futility, and that involved
the straddling. Twice it happened, while MPs held him down
while a female interrogator straddled him without placing
weight on the detainee.
Invasion of space, B. The female interrogator on one
occasion massaged the back and neck of ISN-063 over his
clothing.
C, female interrogators on numerous occasions invaded the
personal space of ISN-063 to disrupt his concentration.
Asterisk on D, meaning it was observed by the FBI: On
numerous occasions between November 2002 and January 2003, ISN-
063 was yelled at or subjected to loud music during the
interrogation. That was an authorized technique on ISN-063.
Slide 17. These are all substantiated findings, and up
front these all fall under the broad technique of pride and ego
down, which is an authorized technique.
E, ISN-063 was told his mother and sister were whores. He
was forced to wear a bra and a thong placed on his head during
the course of interrogation. Twice interrogators told him he
was a homosexual or had homosexual tendencies and that other
detainees knew. He was forced to dance with a male
interrogator. He was subjected to several strip searches as a
control measure, not for security. An interrogator tied a leash
to his hand chains, led him around the room, and conducted a
series of dog tricks.
Slide 18. The first two have the asterisk, observed or
reported through FBI allegations. Air conditioners were
adjusted to make the rooms uncomfortable. That was not
authorized prior to 16 December. However, it was authorized by
the SECDEF 16 April 2003 under environmental manipulation, and
it's an approved, appropriate, humane Gitmo technique.
L, twice interrogators brought military working dogs into
the Gitmo room and directed to growl, bark, and show teeth at
the detainee. Dogs were authorized under the SECDEF action
memo, again the additional techniques, 2 December 2002,
category 2, individual phobias. Both of those were FBI alleged
observed.
M, interrogators subjected ISN-063 to segregation from the
general population from 8 August 2002 to 15 January 2003, and
that is 160 days. That was authorized by the SECDEF action memo
of 2 December 2002, category 2, isolation facility.
Interrogators subjected ISN-063 to 18- to 20-hour
interrogations per day. Those occurred 48 out of a 54-day
straight period. That was authorized by the SECDEF action memo
of 2 December 2002, category 2, 20-hour interrogations. The
interrogation days were typically a 7-hour interrogation, a new
set of interrogators would come in, 7 hours of interrogation, a
new set would come in, 6 hours, and then the detainee was
released for 4 hours. He could sleep if he chose to sleep.
Slide 19, and this is the discussion, not a finding, on the
ISN-063. While taken individually, each technique and the
application of those techniques was authorized and did not rise
to the level in our judgment of inhumane treatment, and this AR
15-6 team found that the cumulative effect of the interrogation
was degrading and abusive, again regarding this particular
single individual.
Particularly troubling is the combined impact of the 160
days of the segregation from other detainees, 48 of 54
consecutive days of 18 to 20-hour interrogations, and the
creative application of authorized interrogation techniques.
Requiring the subject of the first special interrogation plan
to be led around by a leash tied to chains, placing the thong
on his head, wearing a bra, insulting his mother and sister,
being forced to stand naked in front of a female interrogator
for a period of at least 5 minutes, using strip searches as
interrogation techniques, the AR 15-6 team found to be abusive
and degrading, particularly done within the context of the 48
days of intense and long interrogations.
I do not, however, consider this treatment to have crossed
the threshold of being inhumane. In making that conclusion, I
considered the President's mandate to treat the detainees
humanely and the requirement to ensure detainees had adequate
food, drinking water, clothing, shelter, and medical treatment.
In this case the treatment was not determined by me to be
inhumane because the interrogators not only ensured that ISN-
063 had adequate food, water, clothing, and shelter, but also
that the interrogation and the techniques used were done in a
highly controlled interrogation environment, with medical
personnel continuously monitoring his health and well-being.
On the other hand, despite the controlled environment of
the interrogation room, we felt the commander of the JTF still
failed to monitor the cumulative application of the creative
interrogation techniques applied over a lengthy period of time.
In interviews, the commander of the JTF stated he was unaware
of almost any of these applications.
Both FM 34-52 and the current SECDEF guidance warn
interrogators of the responsibility to monitor the cumulative
effects of interrogation. General Miller was aware of the FM's
warning and expressly told the FBI agents--and had been
expressly told by FBI agents of their concerns about the
dangers of counter-resistance interrogations. Despite these
facts, in my opinion he failed to monitor and place limits on
the application of authorized interrogation techniques--
authorized interrogation techniques--and allowed this
interrogation to result in potentially unnecessary and
degrading abusive treatment.
On Slide 20, we will have to move to a closed hearing to
discuss the second high-value detainee. But we will discuss in
open session some of the treatment.
Slide 21, the second high-value detainee substantiated
findings. The first two have asterisks, again reminding that
these were observed by the FBI agents as alleged abuse. The DOD
interrogator impersonated a Navy captain assigned to the White
House. That impersonation was authorized under the FM 34-52 as
a deception approach.
Interrogators adjusted air conditioners to make the rooms
uncomfortable--again, not authorized prior to December;
however, authorized by the SECDEF 16 April 2003 memo,
environmental manipulation as an approved, appropriate humane
interrogation technique.
On C, this is one that was found by discovery, and that was
that a United States Navy lieutenant commander communicated a
threat to the second high-value detainee and his family, and it
was determined to be a threat of death. We made a
recommendation that the United States Navy lieutenant commander
had violated the UCMJ Article 134 by committing a threat and we
recommended discipline by his current commander.
We were unable--again, this is not a legal criminal
investigation by us; we did not have that authority. But the
preponderance of evidence--even in the absence of several key
witnesses who declined to be interviewed, we found a
preponderance of the evidence showed that this did in fact
happen.
Slide 22.
Chairman Warner. Let me get that clear. Several key
witnesses declined to be interviewed?
General Schmidt. That is correct, sir.
Chairman Warner. Can you amplify that? Who were they and
what procedures did you take to try and get those interviews,
and did you go above your chain or your own level to a higher
level to try and get assistance to get those people?
General Schmidt. Sir, the higher level would obviously be
the combatant commander and that will go to General Craddock
and he will address that in his remarks. The people who would
not acquiesce to being interviewed in this and we could not
interview them because they were civilian, they were retired,
or they were reservists. If they were military, we could direct
them to participate and cooperate with the investigation.
One was a DIA individual, and I need to make sure I am
correct on this. One was a staff judge advocate who said he
would plead his rights to not get involved in this, and we did
not have the authority to go around that. Another one was a--
and the lieutenant commander would also not participate in this
interview.
Chairman Warner. Did any FBI personnel decline to be
interviewed?
General Schmidt. No, sir.
Senator Levin. Excuse me. Was the lieutenant commander on
Active Duty or retired?
General Schmidt. The lieutenant commander was a reservist
and I believe he is no longer even on Reserve status. Is that
correct?
He is still in the Reserves. He has invoked his rights and
he will have to be interviewed in the investigation that will
follow this. Now, I have recommended, again, that this goes to
a commander.
Senator Levin. Just clarify ``invoked his rights''? Be more
specific? What rights?
General Schmidt. Invoked his rights to not incriminate
himself or participate in the interview.
Senator Levin. Thank you.
Chairman Warner. There will be a follow-on criminal
investigation, is that correct? Did you bring that out to
General Craddock?
General Schmidt. I believe so, sir.
Sir, we get to Slide 22, and again I apologize for the
long-winded and the level of definition. But again to review,
that we had nine FBI allegations, two unsubstantiated, two were
substantiated that were not authorized; and there were five
substantiated, however upon investigation we found that under
broad authorities they were authorized.
In my judgment--and we looked at this very, very
carefully--no torture occurred. Detention and interrogation
operations across the board, the general population, and again
looking through all the evidence that we could, were safe,
secure, and humane.
We did find that, regarding one detainee, ISN-063, I felt
that the cumulative effect of simultaneous applications of
numerous authorized techniques had abusive and degrading impact
on the detainee.
Lastly, the second high-value detainee, the naval commander
violated the UCMJ by communicating a threat, and to us it was a
death threat, and that can be determined once we have more
testimony under oath to that.
Chairman Warner. Is there any conflict between the two
substantiated and not authorized and no torture occurred at
all?
General Schmidt. I am sorry? Restate the question?
Chairman Warner. I am just trying to figure out. Two
substantiated, not authorized, and then your general conclusion
is there was no torture, detainee and interrogation operations
were safe and secure.
General Schmidt. Sir, we made a distinction between what
torture and inhumane treatment would be, given the general
guidelines, and then what might be abusive and degrading.
Something might be degrading but not necessarily torture, and
it may not be inhumane. It may be humiliating, but it may not
be torture.
So we can say no torture, no physical pain, injury. There
was a safe, secure environment the entire time. However, there
was degrading and abusive treatment to this particular
individual. That was our charter, was to find that.
On the next slide, sir, that is the end. Again, I apologize
for the lengthy----
Chairman Warner. You do not need any apologies. This is a
very important subject and we need to have all the details
before us.
General Schmidt. Sir, at this time I would like to return
the microphone to General Craddock.
General Craddock. Thank you.
Chairman Warner. General Furlow, is he going to participate
in the direct presentation?
General Craddock. No, sir. He is available to answer
questions when we get to that stage.
Chairman Warner. All right.
General Craddock. Under AR 15-6, as the appointing
authority for the investigation, my responsibility was to
review the report and take action on the findings and
recommendations. In taking my action, I accepted or approved
all the numbered findings and recommendations included in the
written report which was provided to the committee, with the
following two exceptions.
I disapproved Recommendation No. 16, that Major General
Miller be held accountable for failing to supervise the
interrogation of ISN-063 and be admonished for that failure.
However, in accordance with current procedures and regulations,
I have forwarded this report to the Department of the Army
Inspector General for review and action as he deems
appropriate.
I modified Recommendation No. 22 to request that the Naval
Criminal Investigative Service (NCIS) conduct further
investigation into the threat communicated by an interrogator
to a particular high-value detainee before forwarding the
matter to the current commander of that interrogator for his
action as he deems appropriate.
I will now explain the rationale for my decisions. My
reason for disapproving Recommendation No. 16 is that the
interrogation----
Chairman Warner. That is relating to General Miller, for
those trying to follow this. It is a little difficult.
General Craddock. With regard to Major General Miller,
Recommendation No. 16, my reason for disapproving that
recommendation is that the interrogation of ISN-063 did not
result in any violation of any U.S. law or policy and the
degree of supervision provided by Major General Miller does not
warrant admonishment under the circumstances. As the commander,
even in the early days of his assignment, General Miller was
responsible for the conduct of his subordinates. However, as
all commanders must do to an extent they determine appropriate,
General Miller relied on the judgment and experience of his
people to carry out their duties in a manner that was both
professional and authorized.
The evidence shows that he was not misguided in his trust,
since there was no finding that law or policy was violated.
General Miller did supervise the interrogation in that he was
aware of the most serious aspects of ISN-063's interrogation:
the length of interrogation sessions, the number of days over
which it was conducted, and the length of segregation from
other detainees.
The evidence does show that General Miller was not aware of
certain other aspects of that interrogation. However, since
there was no finding that U.S. law or policy was violated,
there is nothing for which to hold him accountable concerning
the interrogation of ISN-063. Therefore, under the
circumstances, I do not believe that those aspects of which he
was not aware warrant disciplinary action.
Again, of particular importance to my decision is the fact
there was no finding that the interrogation of ISN-063, albeit
characterized as creative, aggressive, and persistent, violated
U.S. law or policy. Additionally, I think it is important to
note that General Miller arrived in Gitmo for the first time
when he assumed command on 4 November 2002. He is an
artilleryman with no previous command experience and detention
and strategic intelligence-gathering operations. Upon arrival,
he assumed command of two organizations, JTF 160 and 170, that
upon his arrival were merged into JTF Gitmo. The operations at
Gitmo had commenced in January 2002 with little infrastructure
in place when the first detainees arrived. Upon assuming
command of JTF Gitmo, General Miller became responsible for a
multitude of tasks that demanded his immediate attention:
merging the two task forces into the one task force that would
have a common operating system for both the interrogation
element and the detention element, managing the construction of
new facilities, the manning, equipping, training, and
organizing of the force, developing standard operating
procedures for and improving the cooperation between inter-
agency interrogations, and also, last but not least, improving
the quality of life for the military personnel of JTF Gitmo.
Now, let me go on to the next recommendation,
Recommendation 22, which has to deal with the communication of
a threat. My reason for modifying Recommendation 22 is that
further investigation by the NCIS----
Chairman Warner. Before we leave Miller now, your decision
in effect reverses General Schmidt's finding, but your decision
is now to be reviewed by the Inspector General (IG) of the
Department of the Army. That should be put in the record at
this point.
General Craddock. That is correct, Senator. The requirement
I have under Army regulations, the Army requirement actually,
is that any allegation of wrongdoing, founded or unfounded,
must be communicated to the IG of the Department of the Army
for his review and decision as appropriate.
Chairman Warner. Will he review this de novo, in other
words go from the ground up, look at it all?
General Craddock. We send him the report and my forwarding
letter for his review.
Chairman Warner. Then it goes to the Secretary of the Army,
I presume?
General Craddock. Mr. Chairman, what he does with it, I do
not know his procedures.
Chairman Warner. All right.
Senator Levin. Does he have the power to reverse your
reversal of those two recommendations?
General Craddock. I do not know.
Chairman Warner. I think he does.
Senator Levin. General Craddock, your answer is that you do
not know if he has that power?
General Craddock. That is correct.
Senator Levin. I think we ought to ask our counsel.
Chairman Warner. We will clarify that.
General Craddock. Now, with regard to the communication of
the threat, my reason for modifying Recommendation 22 is that
further investigation by NCIS may discover evidence in
mitigation and extenuation that should be considered in
determining whether disciplinary action is appropriate for the
interrogator.
Of the recommendations I approved, Recommendations 23 to 27
are not within my authority to implement. Therefore, I
forwarded those to the Deputy Assistant Secretary of Defense
for Detainee Affairs for review and action as he deems
appropriate.
This concludes my statement, Mr. Chairman. Thank you for
the opportunity and we stand ready to answer your questions.
Chairman Warner. Thank you very much.
First I want to commend you, General Schmidt, working with
General Furlow, for what appears to be a very comprehensive and
thorough piece of work by you and your team. We had to move
swiftly on this. I had the opportunity at length to visit with
General Craddock last night and to, in the intervening hours,
go through much of the report. But it is a complicated subject.
My first question I will put to General Craddock, but I
think in all likelihood you will want to refer it to your two
officers. That is, your assessment of the working relationship
between those in the Bureau--there were some 400 or 500 Bureau
people?
General Schmidt. Sir, there were 493 in the e-mail survey,
and obviously there is more since.
Chairman Warner. Now, my understanding, they came for 30-
day intervals, the individuals; is that about right?
General Schmidt. I think 30 or 45 days was the standard.
Chairman Warner. Very brief intervals, they were there.
Then there was a complete recycling, one after another. That is
in sharp contrast to the military individual or the civilians
who were there for at least a year in many instances; am I
correct on that?
General Craddock. Initially 6 months and then it turned
into a year rotation, yes, Mr. Chairman.
Chairman Warner. Now, the interrogation at Gitmo it is
clear was producing a lot of very important intelligence that
helped our operating forces, primarily in Iraq and Afghanistan.
That is thoroughly documented, General Craddock?
General Craddock. Mr. Chairman, in a closed session we will
provide you information on the intelligence gained, yes, sir.
Chairman Warner. But my assessment I think in the open can
be that it was a very important contribution----
General Craddock. Yes, sir.
Chairman Warner.--to save lives, be it Americans or
coalition forces, fighting.
General Craddock. We believe so.
Chairman Warner. The findings by and large, with the
several exceptions that you have pointed out, indicate that the
interrogating procedures were conducted in accordance with
directives from the SECDEF, even though from time to time they
were changed.
Now, the Bureau people were looking at this same set of
facts coming from these detainees and the procedures from the
perspective of future criminal operations in the United States;
am I correct on that?
General Furlow. Mr. Chairman, that is correct. The FBI
agent went down there with the idea of conducting a
prosecutable case in a court of law.
Chairman Warner. The standards by which they collect
evidence for prosecutions, presumably for Federal courts as
opposed to State, were quite different than the standards
promulgated by the SECDEF; am I correct in that observation?
General Furlow. Yes, sir, that is correct.
Chairman Warner. To put it in a simple way, that seems to
me could put sand in the gearbox and cause some difficulty in
their pursuing their mission and the military pursuing their
mission. Am I correct in that, General?
General Schmidt. That is correct, sir.
Chairman Warner. Now, when you conducted your
investigation, to what extent did the Bureau have the
opportunity to look at your findings preliminary and provide
some rebuttal?
General Schmidt. Sir, when we started the investigation,
they were aware that the entire focus of my investigation,
General Furlow's investigation, was centered around their
alleged perception or otherwise of aggressive tactics for
interrogation that they would violate their own policy. They
gave us access----
Chairman Warner. So in other words, SECDEF's directives
were inconsistent, maybe not in violation, but inconsistent
with their policies; is that correct?
General Schmidt. The goals were different. The goals for
evidence----
Chairman Warner. Yes, I understand the goals were
different.
General Schmidt.--and intelligence to be used drove us that
way. So there were different rules. The agents on the ground
obviously wanted to develop rapport and develop evidence
through non-coercive means because it is no longer admissible
in a court of law. We needed actionable intelligence on the DOD
side. One, time was an element. Two, the coercion piece was not
an element that would deter that.
Chairman Warner. Now clearly that gave rise to some of the
agents providing the, was it 28 e-mails, is that the number
that raised allegations?
General Furlow. Sir, there was 26.
Chairman Warner. Twenty-six e-mails, which gave rise to the
need for General Craddock to convene this thing.
Now, to what extent did the writers of those e-mails have
an understanding with what the military mission was vice what
the Bureau mission was? Presumably they understood what the
Bureau mission was and the constraints, as you say, imposed by
our doctrine of Federal law and criminal procedure. But did
they have any appreciation for what you were trying to do in
accordance with SECDEF?
General Schmidt. Sir, I will turn this over to General
Furlow, but obviously five of the other allegations were
unsubstantiated because they did not have an understanding.
What they saw and what they understood to be abusive did not
correlate.
Chairman Warner. General Furlow, do you want to make a
comment?
General Furlow. Yes, sir, I will make a comment. I would
like to make a comment that the Bureau was very cooperative in
working with us on this investigation, and the goals obviously,
as you mentioned previously, were different. Now, the initial
conversation with some of the writers of the electronic
communications were from a standpoint of providing a
prosecution. Later on, late 2002, early 2003, there was more of
an understanding and communication between the DOD
representatives and the Bureau individuals about what each
individual's part of the effort at Gitmo was.
Chairman Warner. Now, my understanding is that the Director
of the Bureau has this whole chapter or problem under
investigation. Is that correct, General Craddock?
General Craddock. Mr. Chairman, I know that the Department
of Justice Inspector General (DOJ IG) requested to visit Gitmo
to interview their people there and some of the DOD people. We
supported that. They also did some interviewing of detainees.
Beyond that, I am not aware of where that investigation is
going nor the intent or purpose. But what we were told was it
was to validate FBI processes and reporting procedures.
Chairman Warner. Were there any instances in the
performance of your mission pursuant to General Craddock's
order in which you felt that the Bureau was not being
cooperative? In other words, did each of the persons you wished
to interview agree to do it and did perform an interview?
General Schmidt. When I came on they were completely
cooperative, they were collaborative. The DOJ, they were just
beginning their investigation as we were ending ours. General
Furlow had constant contact with the FBI agents and they also
worked with the FBI to have access to all of those agents who
had allegations that they had seen abuse.
General Furlow?
General Furlow. Yes, sir, we worked hand in hand with the
FBI. There were some agents that were just not available based
on the fact that they were deployed overseas and on projects
and such like that. We were able to visit with the FBI, through
the FBI legal, where we were allowed to run the lead with their
representatives from the DOJ IG in attendance. We have been in
communication with their investigation to ensure that they have
the information that we were able to obtain to assist them in
their investigation.
Chairman Warner. Now, the two unsubstantiated e-mails, did
you interview both of the writers of those e-mails?
General Furlow. Sir, the two unsubstantiated allegations,
we actually----
Chairman Warner. In other words, to me--those e-mails were
examined by you and you could not find any facts to
substantiate the allegations in those two FBI e-mails, is that
what that means?
General Furlow. Yes, sir. In addition to that, what we did
is we queried each one of the FBI agents we visited with, with
all of the eight or nine allegations that I was initially
chartered with.
Chairman Warner. Correct. But now, the two unsubstantiated,
were those people face-to-face interviewed by you or your
staff?
General Furlow. Sir, there was a few--one individual agent
was not available who wrote one of the electronic
communications. We were not able to get a hold of her. She was
not available. But we were able to----
Chairman Warner. What does ``not available'' mean? She is
locatable somewhere in the world, is she not?
General Furlow. Yes, sir. She was on a project.
Chairman Warner. Whatever. I do not want to probe behind
what may be classified, but presumably they are detailed to
domestic stations here in the continental United States, I
suppose, maybe overseas.
General Furlow. Yes, sir, there is a considerable number of
Bureau folks deployed overseas.
Chairman Warner. I understand that. But I mean, where was
this individual physically?
General Furlow. Could I defer that? I am not sure where the
limits and the line is with the FBI information. If I could
defer that to the classified side.
Chairman Warner. Let us put it this way. It is so important
that we determine how these reports were put together, given
that the facts did not exist in your judgment to support them.
General Furlow. Yes, sir.
Chairman Warner. It seems to me that we should have
delegated someone to go somewhere and face-to-face interrogate
that agent. Was that procedure considered?
General Furlow. Yes, sir, it was considered, but it was not
done. But in the context of those allegations, through review
of the methodology, reviewing the logs, interviewing other FBI
agents and DOD personnel, we were not able to substantiate
those two allegations.
Chairman Warner. It has been my judgment--and I have some
experience dealing with this as an assistant U.S. attorney at
one time--you go find the person, wherever that person is, and
face-to-face query them. But that was not done for some reason,
is that correct?
General Furlow. With one individual, that is correct, sir.
Chairman Warner. But that was an important individual, am I
not correct?
General Furlow. Yes, sir.
Chairman Warner. Is it possible, General Craddock, that
there could be a follow-up to fill that gap?
General Craddock. Yes, Mr. Chairman. We can pursue that.
Chairman Warner. I thank you.
Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
General Craddock, you say there are basically three
different types of activity here you have distinguished between
relative to the Miller recommendation. One was torture, one is
inhumane treatment, and the other one is degrading and abusive
treatment. I believe maybe General Schmidt made those
distinctions.
When it came to the recommendation relative to General
Miller, you said that there was no U.S. policy that was
violated and that was the reason for your decision. Is
degrading or abusive treatment consistent with U.S. policy?
General Craddock. Senator, in the context of the
interrogation techniques authorized at the broad level, FM 34-
52 and the directives from the Office of the SECDEF, those
techniques were very general in nature. Now, what happens is
then at JTF Gitmo, the interrogation team looks at, for
example, pride and ego down or futility, as was the example
used by General Schmidt, and they develop specific
applications, if you will, of how to then use under that large
interrogation technique specific applications which will cause
discomfort to the detainee, which will break concentration,
which will take that detainee out of his trained resistance
techniques.
They may be, as General Schmidt has said, have a cumulative
effect of being abusive or degrading.
Senator Levin. You said ``may be.'' Did you disagree with
General Schmidt's conclusion that there were degrading and
abusive techniques used here?
General Craddock. His conclusion was cumulative effects.
Senator Levin. Did you disagree?
General Craddock. I do not know because the report--my
investigators did not give me the point at which that would
have occurred. Was it a combination of techniques occurring at
the same time or was it a combination of one technique over
time, or both? I do not know. That is the reason----
Senator Levin. Excuse me. You do not know from their
report?
General Craddock. Correct.
Senator Levin. You do not agree or disagree with their
conclusion that the cumulative effect was degrading and abusive
techniques?
General Craddock. It may well be the case, but their report
did not prove it conclusively to me.
Senator Levin. If it were the case, would you agree that
that would violate U.S. policy?
General Craddock. No.
Senator Levin. Well then, it makes no difference whether or
not their report is clear on that point or not, because even if
it is clear on that point, which it is in my judgment, it still
in your judgment----
General Craddock. Senator, repeat your question?
Senator Levin. Yes.
General Craddock. Would I do what now?
Senator Levin. If you agreed with their conclusion that the
cumulative effect of these actions was that there was, in their
words, ``degrading and abusive treatment'' of detainees, would
you agree that that would violate U.S. policy?
General Craddock. The policy as written, I would disagree
that it would not violate.
Senator Levin. No, no. There is a double negative.
General Craddock. That is correct----
Senator Levin. In your judgment, if the cumulative effect
of treatment of detainees resulted in degrading and abusive
treatment, would that violate U.S. policy? Can you give us a
yes, a no, or you do not know?
General Craddock. For this specific detainee, which is the
only one I can address since it is the only one in question----
Senator Levin. Well, there are two here.
General Craddock.--with regard to those techniques----
Senator Levin. There are two here.
General Craddock. This is the only one, sir, with these
techniques that we addressed. Because of the situation--let us
take a step back----
Senator Levin. I do not want to disagree with you. I just
want to find out what your answer is. Do you disagree with
their conclusion that, relative to that detainee, the
cumulative effect of the behavior of the interrogators was
degrading and abusive treatment? Do you disagree with that
conclusion?
General Craddock. I do not know.
Senator Levin. Okay.
General Craddock. As I stated earlier, because they did not
give me the specificity.
Senator Levin. Next question, if you agreed with the
conclusion, would you then believe that that would violate U.S.
policy?
General Craddock. We are dealing in a hypothetical?
Senator Levin. Yes.
General Craddock. I do not want to do that. We are dealing
in specifics here.
Senator Levin. Okay.
General Craddock. I think that is why, sir, as I tried to
state--and let me just--that is why I agreed to the
recommendation. This needs some further study to determine
where points are, as referenced in the report, and where lines
may be crossed.
Senator Levin. General Schmidt, let me ask you a question.
By the way, let me just tell you, General Craddock, I would
have hoped that you could have given us a good, clear ``yes,''
that if you concluded, if you concluded, that there was
degrading and abusive treatment of a detainee, that that would
violate U.S. policy. I would have hoped you would have given us
a good, clear ``yes'' on that. But I will leave it at that.
General Craddock. May I respond?
Senator Levin. Sure, if you can leave me a little time.
General Craddock. Senator, we have some definitional
standards and we know what torture is and we know what cruelty
is. ``Inhumane treatment'' is undefined, but defined at JTF
Gitmo in the absence of anything else that is used, and it
appears to be effective. Beyond that, this blurs. An intent--
the issue here is to what was the reason it might have been
done. It was to produce an effect, to gain information, not for
recreation.
Senator Levin. I could not agree with you more on that.
General Schmidt, this is for you. A May 10, 2004, e-mail
released under a FOIA request describes how FBI concerns about
aggressive DOD interrogation techniques were so serious that
agents in Gitmo had guidance to stand clear when the techniques
were used. The e-mail states that in weekly meetings of
officials from the FBI and the DOJ's Criminal Division, ``We
all agreed DOD tactics were going to be an issue in military
commission cases.''
Now, my question: Do you have an unredacted copy of the May
10, 2004, e-mail?
General Schmidt. Sir, I am familiar with the e-mail. I am
not sure if we have an unredacted copy or not.
Senator Levin. I would think you should have an unredacted
copy of the e-mail. I think you ought to insist on it.
General Schmidt. We will take that for the record and we
will find out.
[The information referred to follows:]
I do not have an unredacted copy of the 10 May 2004 FBI e-mail
discussing instructions to Gitmo interrogators. I have viewed a
redacted copy of this same e-mail and feel confident that all of the
FBI concerns have been addressed relative to the scope of this
investigation.
Senator Levin. If you do not, I think you ought to insist
upon it.
There was, finally, in this May 10, 2004, document a
reference to an earlier electronic communication which was
prepared by the FBI's behavioral analysis unit explaining the
Bureau way of interrogation versus DOD's methodology. Now, a
classified version of that EC--which was referred to in the May
10, 2004, document, a classified version of that EC which is
dated on May 30, 2003, has been provided to the Senate by the
FBI. The classified May 30, 2003, EC contains a number of
redactions, but also makes reference to a number of attachments
to the May 30, 2003, EC.
My question: Do you have an unredacted copy of the May 30,
2003, electronic communication and do you have the attachments
that are referred to?
General Schmidt. Senator, we are not in possession of that.
We are aware of that EC. We were made aware of it in the last
few days. We were allowed to see and review, but not take
possession of, that document by the FBI just 2 days ago.
Senator Levin. Its attachments?
General Schmidt. General Furlow, did you get to see the
attachments?
General Furlow. Yes, sir.
Senator Levin. I would ask the chairman here that we ask
that you make available to us in a classified setting, and that
the FBI make available to us since you folks have seen them,
that document plus its attachments, in a classified setting. So
this is really a question I guess I will have to address to our
chairman.
Chairman Warner. We will take it under advisement.
Senator Levin. Thank you. My time is up.
Chairman Warner. But I believe we have to clarify the
record. Your questions are very important.
In the course of your examination of the e-mails, did you
see all of the unredacted that you so desired?
General Schmidt. General Furlow did that part of the
investigation.
General Furlow. Yes, sir. Going back to Senator Levin's
comment earlier, sir, we reviewed those yesterday at FBI
headquarters. We were able to review them and read them, but we
were not allowed to take possession of those documents. We were
allowed to take notes, but we do not have those documents in
our possession.
Senator Levin. Your report was written before you saw those
documents?
General Furlow. Yes, sir.
General Schmidt. Sir, our judgment after General Furlow
read that, it was determined it was not relevant to the focus
of our investigation on abuse.
Senator Levin. To this, okay.
General Schmidt. This particular focus, sir.
Senator Levin. That is fine. If we could have a copy of
those documents in our classified session, it would be helpful.
General Craddock. Senator, we do not have the documents.
Chairman Warner. No, I understand.
Why did you delay until 24 hours before this hearing to
look at such an important body of evidentiary material?
General Furlow. Sir, there was one particular document that
came up we were able to obtain a copy. There was a reference to
this document dated May 30, 2003, and that was a specific
document that I had not seen before. The other referenced
documentation that I reviewed yesterday, the attachments and
such, were made privileged to us previous to that. What I did
is I went through and reviewed those to ensure that we had a
completeness.
But the only document that we had not seen previous was the
May 30, 2003.
Senator Levin. So the attachments had been made available
to you?
General Furlow. Yes, sir.
Senator Levin. Okay, good.
Chairman Warner. I thank you.
Senator McCain.
Senator McCain. General Craddock, as a matter of curiosity,
you mentioned one of the reasons why you overruled General
Schmidt's recommendation is General Miller was an artilleryman
and had absolutely no experience in the handling of prisoners.
Why, if this is such a valuable and important operation, would
we appoint somebody in charge who had no experience?
General Craddock. Senator, as I recall I said experience in
detention operations at the strategic level. I did not make
that decision. General Miller is an aggressive commander. He is
known to be able to work through problems and bring----
Senator McCain. So we could not find anybody who had
background and experience in this kind of work to be in charge?
General Craddock. Sir, I cannot answer that. I was not
privy to the selection process.
Senator McCain. The prisoners at Gitmo are those captured
in Afghanistan, is that correct?
General Craddock. That is correct.
Senator McCain. What is the status of those prisoners? What
is the official status of those prisoners?
General Craddock. As determined by the Combatant Status
Review Tribunals, enemy combatants or no longer enemy
combatants.
Senator McCain. Either one?
General Craddock. The ones that are declared no longer
enemy combatants then will either be returned to country of
origin or released. That is an ongoing process, Senator.
Senator McCain. I was asking the status of those who are
held prisoner today in Gitmo. What is their official status?
General Craddock. I answered that question, sir.
Senator McCain. Which is?
General Craddock. They are either enemy combatants as
determined by the Combatant Status Review Tribunal and
validated through an annual review board or no longer enemy
combatants and therefore they will be processed for return or
release.
Senator McCain. As enemy combatants, what protections and
what international agreements that we are signatories to are
they entitled to?
General Craddock. Our policy is they will be treated
humanely and, where military necessity allows, consistent with
the principles of the Geneva Conventions.
Senator McCain. Say that again?
General Craddock. They will be treated humanely and, where
military necessity permits, consistent with the principles of
Geneva Conventions.
Senator McCain. Where military necessity permits, they are
eligible for----
General Craddock. Consistent with military necessity----
Senator McCain.--Geneva Conventions? Who decides where
military--what was your word?--military necessity permits?
General Craddock. Consistent with military necessity----
Senator McCain. Who decides what ``military necessity'' is?
General Craddock. At this point, sir, the JTF commander,
JTF Gitmo commander.
Senator McCain. So when we interrogate a prisoner, we say
you may be eligible for protections under the Geneva
Conventions, but only where military necessity permits?
General Craddock. I did not indicate it was an
interrogation issue. The point at which----
Senator McCain. We are talking about interrogation at this
hearing, General.
General Craddock. I understand that, Senator. But there is
also detainee operations, which is the security aspect of that.
Senator McCain. Let us focus our attention on the
interrogation techniques, which are the subject of this
hearing.
General Craddock. Okay.
Senator McCain. Who decides whether they have the
protection of the Geneva Conventions for the treatment of
prisoners of war or not?
General Craddock. That is a presidential decision. The
President has said that they do not have the protection of the
Geneva Conventions.
Senator McCain. Even though they are classified as enemy
combatants?
General Craddock. Sir, the President has said they do not
have the protection of the Geneva Conventions.
Senator McCain. These are not al Qaeda. These are people
who are captured in combat in Afghanistan; is that right?
General Craddock. Sir, they are Taliban and al Qaeda.
Senator McCain. Okay, and they were part of the Taliban
government in Afghanistan, right?
General Craddock. They were Taliban. Whether it was a
Taliban government, I won't judge. They were Taliban.
Senator McCain. Okay. So basically they have no protections
unless military necessity permits it; is that correct?
General Craddock. They will be treated humanely.
Senator McCain. Well, tell me this. At least for a period
of time--is it still permissible to use a wet towel and
dripping water to induce the misperception of suffocation?
General Craddock. I am sorry, Senator. I missed the
question. I was given a note here.
Senator McCain. I have the JTF-170 counter-resistance
techniques, requested 11 October; SECDEF approved 2 December,
Category 2 and Category 3 rescinded 15 January. Is it still
permissible to use a wet towel and dripping water to induce the
misperception of suffocation?
General Craddock. Sir, the only principles--the only
interrogation techniques authorized are in the 16 April letter.
I do not know if that letter--the date of that letter, if that
was the 2 December, tier 1, 2, and 1 of tier 3. Tier 2 in the
one individual technique and tier 3 were rescinded on 15
January.
Senator McCain. All of them?
General Craddock. All tier 2 and all of tier 3. Only one
was ever authorized, tier 3.
General Schmidt. Senator McCain, if I could answer that.
Senator McCain. Yes, go ahead.
General Schmidt. On that list, the use of the wet towel and
dripping water to induce the misperception of suffocation was
one of the techniques requested by the JTF in their laundry
list given up. It was never approved. It has never been a
technique approved. The SECDEF declined to even consider that.
General Craddock. That was tier 3?
General Schmidt. It was a category request, but it was
never approved.
Senator McCain. Are dogs still used in interrogations?
General Craddock. Dogs are not used in interrogations.
Senator McCain. They are not?
General Craddock. No, sir.
Senator McCain. They have been?
General Craddock. I believe the report, as indicated, found
two occasions where dogs were used.
Senator McCain. General Schmidt, there is a--well, let me
just tell you the problem, General Craddock. There are no
specific guidelines that I can tell from your response for
specific rules for treatment of ``enemy combatants'' and there
needs to be. Maybe that is not in your pay grade, but the
clause ``where military necessity permits'' is as wide open as
anything that I have ever heard.
This is what leads to recommendations such as were agreed
to by the SECDEF and then had to be rescinded. I also happen to
know that the then-acting on Active-Duty JAGs did not agree
with these guidelines that were approved by the Secretary of
Defense for a short period of time.
General Craddock. Sir, may I clarify?
Senator McCain. We need specific rules and specific
guidelines for the treatment of ``enemy combatant,'' as these
in Gitmo are. Now, they may be al Qaeda, they may be Taliban,
they may be the worst people in the world, and I am sure that
some of them are. But there are certain basic rules and
international agreements that the United States has agreed to
that we will observe.
Go ahead and please respond.
General Craddock. Very quickly, let me clarify. The
President's policy: ``As a matter of policy the United States
Armed Forces shall continue to treat detainees humanely and, to
the extent appropriate and consistent with military necessity,
in a manner consistent with the principles of Geneva.''
Senator McCain. When you say you adhere to some principles,
lots of us adhere to principles and practices that vary rather
dramatically. As I say, that is a legalistic statement and one
that is ridden with loopholes. It is clear to me that one of
the reasons why we are sitting here today was, at least at the
working level, that the interrogators did not understand, at
least some of them did not understand, that ``humane
treatment'' might be in the eye of the beholder.
General Schmidt, did you draw that conclusion from your
investigation?
General Schmidt. Sir, the lines were hard to define. Humane
treatment, torture, I felt were the clear lines. So did the
JTF. Anything else beyond that was fairly vague, so it fell to
our judgment. Again, this was not a criminal investigation. It
was one where I was asked to use my judgment. Detainee abuse
was the center of the investigation. I felt there were abusive
and degrading things done to this particular detainee and that
is why I made that judgment.
Senator McCain. General Furlow, the Army FM is very
specific, is it not, on the treatment of prisoners?
General Furlow. Yes, sir, 34-52 is specific. There is a
chart on 1-10.
Senator McCain. Why would we not just say, the Army FM
applies here, with the exception if the President of the United
States decided that this was--that the Army FM could be
exceeded in outstanding examples? What is wrong with just using
the Army FM, which is what we have used in previous conflicts?
General Furlow. Yes, sir, that is essentially what was
done. The initial set-up at Gitmo, the 34-52 was the authority,
and the commander on the ground determined that it did not meet
his requirement and requested more aggressive interrogation
techniques and requested through memo form, in written form,
and that is where the December 2 memo comes from that was later
rescinded on the 15th of January, and then it followed the next
authority process, sir.
Senator McCain. I might add that those guidelines that were
approved by SECDEF were not agreed to by the uniformed judge
advocate generals because of their concern that we would get
into this kind of morass that I find us in now. It is not clear
to the members of--it is not clear to this member of this
committee, and I do not think it is clear to the American
people, exactly and specifically what the guidelines are, which
then understandably would lead to some abuses of prisoners.
I hold no brief for the prisoners. I do hold a brief for
the reputation of the United States of America as to adhering
to certain standards of treatment of people no matter how evil
or terrible they may be. I am afraid, General Craddock, that
you have not--this hearing has not cleared that up, at least to
my satisfaction.
I thank you, Mr. Chairman.
Do you want to respond to that, General Craddock?
General Craddock. Sir, I understand the point you have
made.
Senator McCain. Thank you very much.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator McCain.
That request up to higher authority, do we have documents
that reflect how that was put to the higher authority? If not,
we would like to have that made a part of the record.
General Furlow. Yes, sir. We made note of that earlier,
that that is part of the fact chain that we are providing to
you in documentation with the 2 December memo.
Chairman Warner. Because it is an important line of
questioning and we have really got to probe this very
carefully.
General Furlow. Yes, sir.
Chairman Warner. Senator Reed.
Senator Reed. Thank you, Mr. Chairman.
General Schmidt, at page 12, I just want to try to clarify
something in my own mind. You cite FM 34-52. You take out the
general categories, you go down, and then you give an
application at Gitmo, which is mother and sister were whores,
dancing with male interrogators, homosexuality allegations, et
cetera.
First point: That sounds remarkably similar to what
occurred at Abu Ghraib, people being led around in chains,
people being forced to wear lingerie. Perhaps a coincidence,
perhaps not. But to clarify this, is it your assertion that FM
34-52, which was written in the context of the Geneva
Conventions, would allow this type of behavior any place other
than Gitmo?
General Schmidt. Under the Geneva Conventions, sexual
humiliation would not be appropriate.
Senator Reed. So these references to 34-52, which are
written in the context of the Geneva Conventions, in fact cite
the Geneva Conventions, are not at all applicable in your view
to Gitmo?
General Schmidt. The enemy combatants in this context are
also not applicable to the Geneva Conventions.
Senator Reed. So the confusion I think here is that there
are standards which we have to apply under the Geneva
Conventions, which is in Iraq particularly, but the answer here
was that we were operating essentially with just the direction
of the SECDEF and whatever improvisations could be made down
there at Gitmo. Is that fair?
General Schmidt. Senator, what would be fair is there are
authorized techniques and the applications to someone with a
status that was not protected by the Geneva Conventions,
although he had to maintain humane treatment, were taken fairly
liberally.
Senator Reed. Let's turn to ISN-063, the 20th hijacker,
probably the most infamous, notorious prisoner down there. What
approvals were necessary from the DOD to conduct this
interrogation of ISN-063?
General Schmidt. The approval process was one where the
request to interrogate him was done by the JTF. Those
procedures that came down, there was a considerable amount of
debate, conferencing, meetings, that sort of thing. Then there
was an offering of how many might be suitable, and in the end
the SECDEF chose a lesser number and promulgated those down in
the 2 December.
Senator Reed. But let me--I am talking specifically about
this one prisoner.
General Schmidt. He was the subject of the request.
Senator Reed. So we have with respect to this one prisoner
an ongoing dialogue between General Miller, authorities in the
DOD, including the SECDEF, about specific techniques that were
going to be used, specific parameters for the investigation; is
that correct?
General Schmidt. To our knowledge, there was a considerable
amount of communication up and down the chain. That was not the
subject of our investigation.
Senator Reed. But you are aware of numerous communications
between General Miller and Secretary Rumsfeld and other
civilians in the DOD specifically about this one prisoner?
General Schmidt. We are aware there was communication.
General Craddock. Let me set the record straight here if I
could, Senator. This special interrogation proposal was
developed prior to General Miller coming on board. It was done
by General Dunleavy, and the preparation was weeks before
General Miller showed up.
Senator Reed. When did the interrogations take place of
ISN-063? Throughout General Miller's tenure? How many months?
General Schmidt. Prior to his arrival, and then he arrived
while it was already ongoing. He started on 23 November.
Senator Reed. Did you look at General Miller's e-mails in
your investigation?
General Schmidt. We looked at all his promulgated guidance.
Senator Reed. But you did not look at any of his e-mails?
General Schmidt. Did not see--now, correct me.
General Furlow. Sir, let me handle that one.
Sir, we went back to the server and the answer is, no, we
did not look at his e-mails. We attempted to look at it. The
server did not contain the e-mails in its memory past about a
year, 18 months. So we were able to get a few memos, but they
were not applicable to this particular case.
Senator Reed. So you could not recover from any sources the
communications he had back and forth about ISN-063?
General Furlow. Not in the e-mail format, sir.
Senator Reed. General Craddock, I think what you have done
is taken an investigation which was sincere and detailed and
turned it into a justification and exoneration for a senior
officer and found a junior officer to recommend for punishment,
which is consistent with all these other investigations.
General officers apparently are fine, they were overstressed,
they were distracted, they did not have the background; but
naval Reserve lieutenant commanders are now looking at
punishment.
It seems to me to be ludicrous. This prisoner was not
someone lost in the shuffle. He is probably the most
significant prisoner in Gitmo. He was the subject, even though
it was with General Dunleavy, of debate with the SECDEF about
precisely what should be done. For you to exonerate General
Miller by simply saying he knew how long it was but he did not
have to pay attention to details I think is unsubstantiated by
any evidence. In fact, the evidence I think would compel
following up with General Schmidt's recommendation.
So I just once again am disappointed in an investigation
that has turned into something less than accountability, and it
is another, again, justification for I think terrible mistakes.
I associate myself with Senator McCain's remarks. We are in
this muddle because no one has taken responsibility at a senior
level for what has been done.
Thank you.
Chairman Warner. Thank you, Senator Reed.
General Craddock, I want to give you and the other
witnesses the opportunity to fully reply to the Senator's
observations.
General Craddock. Thank you, Mr. Chairman. My response is I
appreciate the Senator's comments. I do not agree, obviously. I
looked at this from the perspective of someone with 33 years
plus experience trying to put my experience, what I have
learned, into that situation, as I always do when I have to
make judgments on admonishment or reprimanding or punishing
subordinates or others I am judged to do so. I looked at that,
and the difference between my investigators and myself
essentially is the scope of supervision necessary. I looked at
the fact that he placed trust and confidence in his
subordinates, and those subordinates I think repaid that trust
and confidence, because there was no crossing of the line, if
you will, violating the law or the policies as they were
provided.
I think that we have to understand, this notion of an
interrogation technique as written in 34-52 is a broad level,
as General Schmidt discussed, and there are different
categories. They then become translated into manifestations,
into activity in their application. I think that is where
reasonable people will differ in their expectations of what
applications are used.
We know, based on this manual [indicating], the al Qaeda
training manual, we know how they prepare resistance
techniques. If we use interrogation techniques that they are
prepared for, they will not work. So the intent there is to get
into their space, cause them discomfort, to create a situation
where they start to talk and we gain information. That is where
the creativity of the interrogators, through proper
authorities, as was in place and still is, is applied.
The other fact is this was one individual. It is not
applied universally across the entire detainee population.
Thank you, Mr. Chairman.
Senator Reed. Mr. Chairman?
Chairman Warner. Yes, Senator Reed.
Senator Reed. Mr. Chairman, I ask General Craddock: Did you
read General Schmidt's entire file?
General Craddock. His report?
Senator Reed. His report.
General Craddock. Yes, sir.
Senator Reed. The statements?
General Craddock. Yes, sir, I read every attachment.
Chairman Warner. As a matter of fact, you told me you read
it twice last night.
Senator Reed. Your conclusion was, as I believe you said,
there is not enough detail for you to substantiate the point at
which this cumulative effect was contrary to policy?
General Craddock. Contrary to policy or crosses the line to
something else. I do not know where it is. I asked the
question, Senator, of my investigators: I am unsure of where
you say the cumulative effect. Is it a multiple application
simultaneously of different techniques? Is it one technique
over time? Where is the most egregious? I do not know, and that
is the basis of my approval of his recommendation.
Senator Reed. General----
Chairman Warner. Senator Reed, I have a problem here.
Senator Reed. --the line is where you draw it, and you did
not draw it.
Chairman Warner. Thank you very much. I want to make sure
that the other flag officers have had a full opportunity to
reply.
Did you wish to add anything, General Schmidt?
General Schmidt. No, sir. I respect General Craddock's
opinion.
Chairman Warner. General Furlow?
General Furlow. No, sir.
Chairman Warner. Fine.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
Let me give you a different Senator's observations.
Sometimes we get bogged down in all the detail and we forget
about the overall picture, the big picture. I am shocked when I
found only yesterday from the report that, after 3 years and
24,000 interrogations, only 3 acts of violation of the approved
interrogation techniques authorized by FM 34-52 and DOD
guidelines.
I just, I am shocked. It makes me wonder if we are really
getting the most out of these detainees. It talked about one
detainee having duct tape, another red ink, and all that stuff.
When you contrast these interrogation techniques with those
used in other countries, those fighting us, it is hard to
understand why we are so wrapped up in this investigation.
Further, you have determined in all but a couple of cases
appropriate disciplinary action was taken and in all the cases
no further incidents occurred.
Add to that fact, most if not all of these incidents are at
least a year old. I am very impressed with the way the
military, the FBI, and other agencies have conducted
themselves. This report shows me an incredible amount of
restraint and discipline was present at Gitmo. Even the small
infractions found were found by our own government, corrected,
and now reported.
We have nothing to be ashamed of. What other country,
attacked as we were, would exercise the same degree of self-
criticism and restraint?
Now, let me ask you, General Furlow--you have been getting
off easy here. Just give me in your professional opinion, what
is the worst substantiated incident of inappropriate use of
interrogation techniques that you investigated, just the one?
General Furlow. Sir, it is the--in my opinion, and that is
solely my opinion--would be the one involving the classified
detainee and that fact pattern.
Senator Inhofe. Was appropriate disciplinary action taken
in a timely manner in that case?
General Furlow. Sir, that was with our report recommending
being passed on to the naval investigation.
Senator Inhofe. Okay. I would like to ask just for a very
brief response on something that concerns me and I would like
to have this from each of the witnesses. We have heard a lot
about the FM 34-52. Are the DOD guidelines as currently
published in that manual appropriate to allow interrogators to
get valuable information, intelligence information, while not
crossing the line from interrogation to abuse? Do you think
they are too restrained? What is your opinion?
General Craddock. Senator, I think because that manual was
written for enemy prisoners of war we have a translation
problem, in that enemy prisoners are to be treated in
accordance with the Geneva Conventions; that does not apply.
That is why the recommendation was made, and I affirmed it,
that we need a further look here on this new phenomenon of
enemy combatants. It is different and we are trying to use, I
think, a manual that was written for one reason in another
environment.
Senator Inhofe. Thank you.
General Schmidt?
General Schmidt. Sir, I agree. It is critical that we come
to grips with not hanging on a Cold War relic FM 34-52, which
addressed an entirely different population. If we in fact are
going to get intelligence to stay ahead of this type of threat,
we need to understand what else we can do and still stay in our
lane of humane treatment.
Senator Inhofe. Do you agree, General Furlow?
General Furlow. Sir, in echoing that, FM 34-52 was
originally written in 1987, further updated and refined in
1992, which is dealing with the Geneva question as well as an
ordered battle enemy, not the enemy that we are facing
currently. I am aware that Fort Huachuca is currently in a
rewrite of the next 34-52 and it is in a draft form right now.
Senator Inhofe. Thank you, General Furlow.
Let me just give my own observations. I think you are
entitled to that, to know that we are different Senators and we
come from different perspectives. I did have occasion to be in
the United States Army. I think that was one of the best things
that ever happened to my life.
But I would maintain that these detainees that we are
talking about here, they are detainees, they have knowledge
about terrorist cells and operations that is useful to the
United States in understanding the actions of those who seek to
do us harm, destroying our way of life. They are not to be
coddled, not if we are to get access to the information that
they possess and information that will help us defeat them.
That is what this is all about. I think we are not talking
about shoplifters here. We are talking--I think you stated it
very well, General Craddock, when you said these are the worst
of the worst. When you see some of the things that have been
attributed to different people, talking about them, they are
watching what we are saying.
I am really concerned about this. I got a lot of criticism
a little over a year ago when the Abu Ghraib first
investigation was taking place and I looked at the fact that
those in those cell blocks were the terrorists, were the
murderers, were our enemies, and that I was more outraged by
the outrage than I was by the treatment of those.
This is just one Senator speaking. What other country would
freely discuss interrogation techniques used against high-value
intelligence detainees during a time of war, when suicide
bombers are killing our fellow citizens? Why would we freely
explain the limitations placed on our interrogators when we
know that our enemy trains his terrorists in methods to defeat
our interrogations? Today we are handing them new information
on how to train future terrorists.
What damage are we doing to our war effort by parading
these relatively minor infractions before the press and the
world again and again and again while our soldiers risk their
lives daily and are given no mercy by the enemy? Our enemies
exploit everything we do and everything we say. Al-Zarqawi the
other day said to his followers, ``The Americans are living
their worst days in Iraq now. Even Members of Congress have
announced that the U.S. is losing the war in Iraq.''
So I just say to you as one person, I applaud all three of
you warriors. I applaud the discipline that has been
demonstrated, the restraint that has been demonstrated by the
interrogators. As one Senator, I admonish you and hope and pray
that you do not unduly discipline our interrogators and impair
their ability to save American lives. I thank all three of you
for your service to America.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator Inhofe.
I would like to go back to a very important point raised by
Senator Inhofe, and you responded, but I think a little clarity
is needed. The Army FM was drawn up against a background of
what basically the United States had confronted in its previous
wars, and that was state-sponsored aggression by nations which
I think in many respects were subject to the Geneva
Conventions. Now, as Senator Inhofe pointed out very
dramatically, we are facing a totally different enemy, and as a
consequence that FM has to be--well, remain in place should we
have the misfortune of a state-sponsored conflict, but a
separate manual has to be drawn up that addresses the
complexity of the individuals that we are now capturing in Iraq
or have and are continuing.
Am I correct in that, General Craddock?
General Craddock. Mr. Chairman, I would agree. It is a
different set of conditions out there that we have to
recognize. I think it would be helpful not to--we need to
understand what has been done and use that as the building
blocks to provide the way for a future look that will put us
instead where we do not have these ambiguous situations, where
commanders know what they can do, where lines are drawn. Yes,
sir.
Chairman Warner. I thank you very much. Several of us on
this committee and I think probably all members of the
committee are anxious that Congress has a role in this to try
and determine how we best devise Federal law such that the men
and women of the Armed Forces of the United States in the
promulgation of their duties, be it on the battlefield, here,
or in maintaining these detention facilities, have a clear
understanding of what they can and cannot do.
Did you wish to add something, General?
General Craddock. Mr. Chairman, if I may, just to respond
to your comment and Senator Inhofe. The fact is that probably
in my judgment a lot of what has been discussed, a lot of what
now is in the open press, and a lot of these applications of
these interrogation techniques will feed change one to the
Manchester document and a new chapter on interrogation
resistance.
Chairman Warner. You had better explain for the record
``the Manchester document.''
General Craddock. This is the al Qaeda training manual. It
has two chapters here on detention and interrogation resistance
techniques.
Chairman Warner. Good. In case people are captured, how
they should conduct themselves----
General Craddock. Exactly.
Chairman Warner. --to resist.
General Craddock. They are trained using these techniques
to resist interrogation.
Chairman Warner. That is very clear. General Craddock and
other witnesses, that is the value of this very important
report which each of you have put together.
Senator Clinton.
Senator Clinton. Thank you, Mr. Chairman.
I do not know where to begin. General Craddock, was it any
member of the al Qaeda or Taliban who took pictures of these
interrogation techniques and thereby revealed them to the
world?
General Craddock. I am not aware of al Qaeda or Taliban
taking pictures of any interrogations at--oh, are you talking
about for their manual?
Senator Clinton. No. The discussion about how these
interrogation techniques became public and who knew about them
and what kind of information that might give to the prisoners
to resist interrogation--in fact, these techniques became
public because of actions and decisions made by members of the
United States military, is that not correct?
General Craddock. Not that I am aware of.
Senator Clinton. Well, think of Abu Ghraib and think of the
pictures that were published, that were taken by members of
military police units and others inside that prison. Is that
not what happened?
General Craddock. Senator, those were not interrogations.
Senator Clinton. No, but they led to the inquiry about
interrogations, did they not?
General Craddock. The timing on these techniques we talked
about here today, the applications, the JTF Gitmo applications
of the techniques, preceded those pictures.
Senator Clinton. I guess my point, General, is that as we
look at what our real goal here is, our goal is to be effective
in interrogation in order to obtain information in order to
deter attacks and in order to find out significant intelligence
that will enable us to defeat this enemy. Is that not right?
General Craddock. I agree.
Senator Clinton. So I think it is important to put in the
record that, at least for some of us, at least speaking for
myself, my concern about this is driven primarily about how
effective we are going to be. There is considerable evidence
that the underlying techniques as well as the publicity about
those techniques, which did not come from the enemy that we
were interrogating but from people on the inside within our own
military, is really what should be the focus here, that if
these techniques were so effective why did we not get better
information, why do we still have people who have been
resistant, and especially at Gitmo, where they have been
basically out of communication for 3 years?
So I think that the intensity behind some of the
questioning that you have received really begins from a
fundamental disagreement about how we can be effective in
pursuing the objectives that we all agree are the ones that are
most important. At least from my perspective, I think that we
made serious errors in authorizing and permitting a number of
these techniques because they were not effective. In a free
society, which we still are, it is very difficult to keep such
behavior totally private. So at some point they were going to
be revealed and disclosed, as the log about detainee 063 has
been revealed and disclosed.
So I guess, General, the questions that many of us have are
really about the underlying attitude that has been taken toward
the series of investigations that have been carried out and our
belief that we have not done all we should to be as effective
as we need to be, and the failure of accountability leads to
ineffectiveness.
General Schmidt and General Furlow, let me ask you. Your
report indicates that several past interrogators at Gitmo
declined to be interviewed and are currently in civilian
status. How many of the FBI's allegations of aggressive
interrogators involved former interrogators who declined to be
interviewed?
General Furlow. Ma'am, on the FBI side, none of the FBI
agents refused to be interviewed. The reason why we were not
able to talk to the individuals that had prior experience down
there was that we do not have subpoena capability under the AR
15-6, which was an administrative investigation. That is what
limited it. If the person was still currently serving in the
military, we could force them to visit with us. If they had
served their time in Gitmo and returned to civilian life as a
reservist, we were not able to subpoena them and force them to
visit with us.
Senator Clinton. How many people were you unable to
subpoena or force to visit with you?
General Furlow. Ma'am, we felt that there was not anybody
that was material to this case.
Senator Clinton. How many, though, were you unable to visit
with or subpoena?
General Furlow. I would say less than 10.
Senator Clinton. General, is that your recollection?
General Schmidt. Yes, ma'am. It was very, very few. Those
that we could not get to that were relevant to our
investigation was just a small amount. It principally involved
the one that involved the death threat and a ruse that we found
out about in interrogation. That was the one that concerned us
the most.
Senator Clinton. Was there not also a former interrogator
who wrote a book about his experiences?
General Schmidt. That is correct. You are referring to
Sergeant Eric Saar. He was on his way to make a documentary. We
asked if he had seen things, would he like to air that, would
he like them investigated. He declined to be interviewed by us
repeatedly.
General Craddock. Senator, if I can set the record
straight, he was not an interrogator. He was a translator-
linguist.
Senator Clinton. As a translator-linguist he would have
been perhaps accompanying interrogators and therefore a
witness, would he not?
General Craddock. He participated in one or two
interrogations that we can establish as a linguist.
Senator Clinton. General Craddock, I just hope that at some
point we can both clear the air on these matters, because I
think we need to, and whatever revisions need to be made in the
FM or the Geneva Conventions, the United States ought to be a
leader in that, and we ought to do so both because that is what
we believe and the kind of people we are and also because we
want to be effective.
There is a lot at stake and it does not inspire confidence
when we have all of these unanswered questions and when General
Miller, who we know went from Gitmo to Iraq and was told to
``Gitmo-ize'' Abu Ghraib, is basically the central figure in
both of these investigations and yet once again is free of any
accountability or any admonishment, it raises serious
questions.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator.
I would like to pick up on the Senator's questions with
regard to 10 individuals which you could not reach for
interview. At any time did you bring this inability to reach
people to General Craddock? General Craddock, did you consider
going to a higher level? In other words, we possibly could go
to the Director of the FBI to facilitate the interviews.
General Craddock. Mr. Chairman, it was not brought to my
attention. This is the first I have heard of 10 people.
Chairman Warner. It seems to me--and I will work with you--
we have to go back and revisit this what appears to be a gap
and see whether or not we can facilitate filling that in.
General Craddock. I understand.
Chairman Warner. I thank you very much.
Did you wish to say something, General Schmidt?
General Schmidt. Senator Warner, the idea that we were
unable to get to certain people, I just want to make sure we
are clear that it was a small number. They were all civilians.
None were FBI. We were almost always able to work around to
other witnesses to events to corroborate that. This was an
informal investigation to fact-find, not a criminal
investigation. But when we found something that needed to be
elevated, we did in the report, and that was the death threat.
Chairman Warner. But I think the two unsubstantiated FBI e-
mails, I believe--you want to revisit your comment that they
were all not FBI? There is an area which troubles me
considerably.
General Craddock. The one FBI agent, the one in question,
we are very familiar with who she is. We made to my knowledge
five or six attempts to get to her. She was not made available.
We discussed that with DOJ, who is also running an
investigation. They have her e-mails. They have not interviewed
her at this time either. She has not been available----
Chairman Warner. I will come back. I do not want to take
the time of my colleague. But that has to be corrected and
straightened.
Senator Roberts.
Senator Roberts. I do not have the time to ask you a lot of
questions and I think a lot of questions have been asked and I
think you have answered them to the best of your capability.
But I do have an observation and a statement, much in the same
fashion as Senator Inhofe.
I want to tell you, General Craddock, I think you did the
right thing by not citing General Miller. I do not agree with
the assessment by other Senators here that he is a central
figure in this case. I am quite sure that General Miller
regrets not keeping a closer eye on those two interrogations,
two interrogations out of 24,000 that we have had. He probably
regrets not knowing what each person down there under his
command had for lunch either.
But certainly that lapse is far outweighed by the miracle
that he worked in his time at Gitmo. I take that from staff
members of the Intelligence Committee who were interrogators at
the time, knew of the chaos, knew of the disorder. This
officer, while his Military Occupational Specialty was not in
keeping with perhaps that assignment, was able to be a
problemsolver.
Along with General Craddock, I visited Gitmo this past
weekend. I got a thorough look. Nothing was denied to me, more
especially as the chairman of the Intelligence Committee. I
think that that system that General Miller, much maligned now
that he is, brought order to chaos in his management of both
the intelligence and the detention operations there--he
pioneered the management and oversight systems that have made
that detention facility an operation where--my view is in
opposition to those who have already spoken--that we can be
proud of under the circumstances with what we are gaining in
intelligence and, more especially, the treatment of the
detainees. They are not ``detainees''; they are terrorists and
they are very bad people.
Never, never before in history has any country faced with a
barbaric terrorism implemented a policy of terrorist detention
so unique, so unprecedented, and so humane, in my personal
view.
Let me review those numbers again. There were 26
allegations of abuse that came from FBI personnel at Gitmo,
nobody taking pictures. That was in Abu Ghraib and had nothing
to do with interrogation. Of those nine incidents amounting to
what could have been serious allegations, six of those turned
out to be false allegations or incidents that were within the
rules.
So if I am correct, we ended up with two incidents along
with one more that the investigators found along the way, to
bring a grand total of three confirmed incidents. That is part
of the 24,000 total interrogations that have been conducted at
Gitmo. So out of 24,000 interrogations, 3 total incidents. My
math, that makes for an incident rate of .000125.
What field manual could be written to prevent incidents or
an incident rate or a mistake in regards to 24,000
interrogations that resulted in an incident rate of .000125? Is
this what this has come down to, 3 misdemeanors out of 24,000
interrogations, 3 misdemeanors that occurred 2 or 3 years ago,
not today, not to practices that are being conducted today
under your command and under the commander down there?
Now, I am in no way condoning incidents that are described
in this report. Nobody is saying that. But I do not think they
are a matter of national press attention, which will probably
be the case. They are unfortunate, not only because they are
unworthy of our great Nation, but because they are not
effective at getting reliable information. That is the point
that Senator Clinton made. But you understand that and the
commander understands that, and the young men and women that I
visited with personally certainly understand that.
Their motto on the back of their cover says ``Honor
Bound.'' When you went through that facility, everybody saluted
you and said ``Honor Bound,'' and you said ``Honor Bound'' back
to them. Things have changed at Gitmo in result of all of this
that we are talking about.
I will tell you what this report says to me. It says that
the three relatively minor incidents are not reflective of the
vast majority of the important interrogations being conducted
at Gitmo. I am talking about Gitmo as of today. It says that
overall things are going well under very dangerous
circumstances. I saw this for myself, the outstanding work our
hardworking men and women are doing down there.
I am getting into trouble because of the report that I
issued back in Kansas, because I said: Food, yes, the detainees
are getting a choice of 113 Muslim dishes. Our troops are not
getting that kind of choice. On health care, I said the clinic
and/or hospital that had to basically treat the wounds of these
people who came in from Afghanistan--and we have taken down 80
percent of the Taliban and also al Qaeda; these are the very
bad people who are left and are terrorists and are still there.
They have better health care and better facilities than many of
my rural small communities. That got me in trouble. Ice cream
on Sunday did as well.
If they are compliant, what about the home conditions or
the conditions in terms of any kind of a communal living? Well,
we saw them playing soccer, we saw them playing volley ball. I
did not see anybody playing ping-pong, but it was there.
What about the observation of their culture and their
religion? They pray 5 times a day, at least 20 times. Everybody
is very reverent and silent. No American touches the Koran,
none. A Muslim does. They are in each cell, and so we are
really respecting that.
General Hood, who is the current commander, happens to be
from Kansas, and I talked to his dad this morning and I told
his dad he was doing an outstanding job. He gave us a wonderful
briefing. He runs a tight ship with excellent oversight,
supervision, and detainees are treated humanely and
respectfully, both in the interrogation and the detention
facilities.
It is getting results. Now, that was another big point that
Senator Clinton made, and I wish she was here. We are getting
valuable intelligence from Gitmo every day.
I saw the interrogations. I know the material we have. I
know--I am not going to get into anything specific here, but I
do know that it is current and can save lives, more especially
in events like Casablanca and Madrid and, yes, London, and yes,
plots against the United States.
We are using carrots, not sticks. I did not see any
perfume, I did not see any straddling. I did not see any sleep
deprivation, because that does not work. The positive side does
work. So the men and women working at Gitmo handle very
dangerous people every day, but it seems lately they have more
to worry about from Congress--and that is what they told me:
What is going on in Congress? Not only do they know it, but the
prisoners know it from the terrorists they hold and
interrogate.
Why would you shackle somebody to the floor prior to the
interrogation in earlier days? Because their lives were at
stake. They have made homemade weapons despite our very best
efforts. They spit in people's faces, and that is not even the
first of it. The rest of it is so abhorrent that I cannot get
into it, not to mention any kind of physical activity, even if
shackled, that they would do.
So to protect the person who is leading them into the
interrogation room, that would be an obvious thing that you
might want to do.
General Schmidt and General Furlow, you have conducted a
very thorough investigation. I thank you for that. You have
answered all my questions in regards to the allegations.
I think the brave women and men down there at Gitmo are
working hard every day to keep us safe. They have enough to
worry about without any more ill-informed accusations of abuse
or calls for closing down Gitmo. I think with the current
practices, the current oversight, I think they need our
support.
Thanks for a job well done. General Craddock, the work
being done at Gitmo is important. I want you to know, and your
people down there, that you have my support.
I would like to remind my colleagues we are in a war on a
global scale. It is against a vicious and determined enemy.
They reside in Gitmo. They are interested in one thing and that
is killing.
The terrorists at Gitmo know today about this hearing. They
know about the questions. They know about who goes down there.
The people who have asked the most serious questions--and I do
not challenge that--go to Gitmo and take a first-hand look.
When they are down there, these terrorists view their
incarceration as part of their jihad. It is just like that
manual that you held up. The more they know about what we are
doing, the more they can offset what we are trying to do in
terms of interrogation.
They know about this hearing, and they doubt our resolve
and they think down the road, with legal help and wounding
themselves and saying they have been basically treated in an
inhumane fashion, that they can make a case with the American
people. So they say that the Americans do not have resolve and
that basically these kinds of hearings, it seems to me, really,
I question whether we have the resolve as well. I think it is a
most unfortunate statement that I would have to make in that
regard.
So I thank you for the job that you are doing, and I called
the three parents of the three young men down there who are
working so terribly hard, who work 1, 2, 3 days in those camps
that are so terribly difficult and then have to take 1 day off,
maybe 2 days off, just to get away from it. I remember that
thing on the back of their cover, ``Honor Bound.'' They are
doing the right thing. They are getting the best intelligence
possible. I do not think we need to concentrate on 3
misdemeanors out of 24,000 investigations.
I am way over my time, but I really do not give a damn.
Chairman Warner. Senator Kennedy.
Senator Kennedy. Thank you very much, Mr. Chairman.
I always thought that we were part of a Geneva Conventions
because we were concerned about the safety and the well-being
of our own troops today, tomorrow, and in future conflicts. I
never thought that the test was we are going to be as bad as
whoever we are going to fight in whatever war we are going to
be in.
It seems to me that if we are going to have an expectation
that we are going to have our people treated decently--we know
the history in many cases that they have not been, but if we
are going to find that out, it always seemed to me that the
Geneva Conventions was there to make sure that we were going to
protect our own people that were being held in other
circumstances. That I still feel myself is the appropriate kind
of criteria.
We have had other discussions about the Geneva Conventions
and enemy combatants and we will get back to that at another
time. But I do not think we can simply answer, as some have
done, that the behavior, whatever behavior might have taken
place at Gitmo, is acceptable because terrorists do worse. By
lowering our standards, we reduce our moral authority in the
world, undermine our leadership on human rights.
The FBI found that these torture techniques, as they called
them, including the stress position, the 20-hour interrogation
marathon, the use of dogs, violate the Constitution. They
strenuously objected to them. Incredibly, the DOD found that
these techniques were permissible despite the FBI analysis.
Even under the DOD standards, the investigators found that some
of the techniques used were not authorized.
General Craddock, the report--I know you have been asked
this, but I want to come back to it. The report--because I
think there is whole questions of accountability, both in
Gitmo, I think, as well as in Iraq and other places. But let us
just focus on this. The report recommended that General Miller
be reprimanded, but you rejected the recommendation and simply
referred the case to the Army IG.
I know Senator Reed asked you a question, that question or
one similar. I believe you gave an answer. I'd be glad to hear
you rather than me stating what I think I heard you answer.
Maybe you would address that, if you would, again, please.
General Craddock. What is the question, Senator?
Senator Kennedy. The question is, there was a
recommendation for disciplining General Miller. You made a
judgment decision--that General Miller be reprimanded. But you
rejected the recommendation and simply referred the case to the
Army IG. I am asking you why, what was the basis for that?
General Craddock. I disapproved the recommendation that he
be held accountable for failing to supervise and be admonished.
I am required to forward that to the Army IG because it is an
allegation of wrongdoing. So that is the procedural aspect,
Senator.
My rationale----
Senator Kennedy. Let me just go back on this. He is the man
in command on this. These violations have taken place on his
watch, on his watch. The commission itself found that he ought
to be reprimanded on this because it was on his watch. He had
the general overall responsibility. What is it that you find
that was wrong about the recommendation that he had
responsibility?
General Craddock. Senator, their recommendation said he
failed to supervise the interrogation of ISN-063. There were no
violations of the interrogation of ISN-063.
Senator Kennedy. Now, which torture policy are you using
now? Are you using the Bybee memorandum now, the one that has
been completely discredited? Which torture memorandum are you
referring to? That of course has been repealed.
General Craddock. I am not referring to any torture
memorandum. I am saying what the report said, failed to
supervise the interrogation, not that there were violations in
the conduct.
Senator Kennedy. Well, failed to. Are you not just parsing
words, ``failed to supervise.''
General Craddock. Those are not my words.
Senator Kennedy. Pardon?
General Craddock. Those are not my words. I would have to
defer that to General Schmidt. Those are his words, and General
Furlow. They sent that recommendation.
Senator Kennedy. Well, they made that finding that he
failed to supervise.
General Craddock. I am not parsing words. I am responding
to you.
Senator Kennedy. Okay. Well, if he failed to supervise,
that is not enough--we have had I do not know how many--taking
a different time, in 2003 the Navy fired 14 commanding officers
for effectively failing to supervise, fired them.
Accountability, accountability. I am just trying to find out
where the buck stops, because this has been an issue and a
question, quite frankly, whether this is just a time--we heard
from the SECDEF a long time ago there were just a few bad
apples. Then we had a number of, I think 8, 10, or 11,
different kinds of reviews that have been done in the military
over this, and it never seems to that we get up to any kind of
level of accountability.
We have gotten a number of people at the lower levels that
are recommended for action and for sanction. But it does not
seem to me that it comes up. When it does not come up, then I
have to ask, well, are they following, are they doing
something? Is there some orders or some procedures that they
are following that we do not know about that lets them
effectively get away with it?
General Craddock. Senator, I disagreed with that
recommendation and disapproved it because of a difference of
opinion with regard to my investigators concerning the degree
of supervision required, necessary, or executed, take your
choice. I looked at this several times. I deliberated a long
time. As I said earlier, I always when I am faced with these
situations as a commander try to put myself in that
individual's position, try to understand the environment, the
scope, the wide range of things going on. I have some
experience that allowed me to do that.
I looked at what General Miller, according to the report,
according to what my investigators told me, what he did know.
He did know aspects about that interrogation that I felt were
important for him to know. It is stated in the report. He
admitted he did not know all of the applications used by the
interrogation teams. But he charged and depended on his
subordinates to carry it out in accordance with policy and law,
which they did. There was no violation of policy and law. So he
placed trust and confidence in them and they supported and I
think repaid that trust and confidence, in my judgment.
When you combine that with all the other taskings he had, I
felt that he exercised a reasonable degree of supervision
during the conduct of that special interrogation program.
Senator Kennedy. The only thing--and my time is running
out--he did not know--I find, if he did not know, failure to
know is still failure to lead, I thought, in the military. I
remember that submarine captain that got cashiered when he ran
into that sandbar going full blast. It was not even on the--he
was relieved, because he did not know. It was not on any of the
charts. He was dismissed, career ended in the United States
service.
Now we are being told that he did not know, and the
question that I would think some are asking is, is this a
failure to lead. If you do not punish, then what you are also
saying is that it is allowed. The other side of the coin is, it
is allowed. That is what some people--that is the message you
get. You might not agree with that, but I think there is a case
that can be made for it.
General Craddock. Senator, I would disagree with that, and
I would say that if a commander is required to know every
detail about all aspects of the organizations that he commands
he will be unable to lead.
Senator Kennedy. This is not every aspect, General. You
know what we are talking about. This was the whole purpose for
getting information, intelligence. There was a real debate
about which techniques were the best to be able to get it. That
was all being discussed. Miller was very much involved in this,
eventually moved over to Iraq in order to be able to try and
bring the intelligence into more effectiveness. He was the
master in terms of this.
The idea that on his watch, that these things were going on
and that he did not know about--and the people that
investigated say that he deserved to be reprimanded and you
overturn them is something that many of us wonder about.
General Craddock. As I stated, Senator, he did know about
some of those. He stated he knew about it. He stated he did not
know about others. He inherited this. This plan and
implementation was ongoing. When he arrived, he walked into it
and had to, along with many other things, bring it up to speed.
He had a significant number of major tasks.
Senator Kennedy. My time is up, Mr. Chairman. Thank you.
Chairman Warner. General Craddock, you have three times now
explained very carefully your professional judgment in changing
this recommendation of General Schmidt. But I would like to put
into the record, which I think you will agree with me, in no
way do you have any lesser respect for his professional
judgment, which was contrary to yours, and in no way is your
reversal to reflect adversely on either his judgment or his
performance heading up this team at your directive.
General Craddock. Absolutely, Mr. Chairman. I think the
team here did a wonderful job. I think that is evidenced by the
report they have provided, and in really all but one
recommendation which I heartily approve. This was very
difficult. Members have said that. Discovery learning is
difficult. It is a somewhat ambiguous area and I think, and
again I have told General Schmidt and General Furlow,
reasonable men will reasonably disagree. I disagree with the
scope of supervision required, the degree, the level, and that
is it.
Chairman Warner. The facts are there and I just wanted to
make that observation.
There has been some inference about the hearing that we are
now having in the public. My understanding is that you briefed
the Secretary on this yesterday; am I correct?
General Craddock. I believe it was the day before
yesterday.
Chairman Warner. The day before yesterday. In due course,
will you--normally the Department on the previous
investigations has afforded the opportunity for the panel, in
this case yourself and these two officers, to brief in open
session in the Pentagon individuals in the press. Am I correct
on that?
General Craddock. Yes, Mr. Chairman. As I understand there
is some proposal working now for some activity this afternoon
to do that.
Chairman Warner. That is my understanding, that this report
presented to this committee this morning will be presented in
open session at the Pentagon tomorrow. I wanted to make that
clear. Thank you very much.
Senator Sessions.
Senator Sessions. Mr. Chairman, thank you.
I do know that in a free country we have to have public
reports and public hearings. I do think that we in Congress
have pushed this awfully far. As I calculate it, this is about
the 30th hearing we have had on prisoner treatment since the
beginning of the war on terrorism. I think there are at least a
dozen major investigations have been conducted. I frankly
think, unless we are just trying to play politics, unless we
are just trying to make some political points, perhaps in the
future we would do better to have our hearings in chambers,
closed hearings; and if there is something that needs to be
made public we will make it public.
Chairman Warner. But, Senator, I bring to your attention
that this report, I was advised earlier, is going to be made
public at the DOD this afternoon. It seems to me that it was
incumbent upon this committee to receive that report here in
open session this morning, in the same way that it will be
presented this afternoon at the Pentagon.
Senator Sessions. I understand, and I respect the chairman.
There is no better patriot or better chairman of any committee
I have served on than you. I am just expressing my personal
view that it is time to take this out of the number one project
on our agenda.
I would just say to my colleague, the senior Senator from
Massachusetts, he said--again he has compared the treatment
that we give to prisoners to those of our enemy, and that is
just not fair. He said we are going to be as bad as those we
fight. He said that our prisons are the same as Saddam's, like
Saddam Hussein's prisons.
Senator Kennedy. I want to be quoted--I do not mind being
quoted, but I need to be quoted accurately. I have never
mentioned Saddam Hussein. I do not know where the Senator--
Senator Sessions. Not in this hearing----
Senator Kennedy. No, I did not.
Senator Sessions. Let me see if I can get the correct
quote. I believe the correct quote was--see if I am wrong--that
``We have opened his prisons under new management.''
Senator Kennedy. I can read back what I said.
Senator Sessions. I just wanted to say I am concerned about
that. The distinguished Senator has a name known worldwide.
Other members of this committee are known throughout the world,
and when we make allegations against the men and women in
uniform who are out there serving at great risk because we sent
them, then we need to be careful we do not suggest we have a
policy here of bad treatment when the record indicates
otherwise.
As to how their prisoners are treated, their heads have
been cut off. They have tortured. Torture chambers have
existed. I met and had a press conference with seven or eight
who had their hands cut off by Saddam Hussein.
General Schmidt, did you see any prisoner or hear any
reports of a prisoner that died in Gitmo or any prisoner there
who suffered a broken bone or serious permanent injury as a
result of any treatment in Gitmo?
General Schmidt. To my knowledge there have been no deaths
of any detainee at Gitmo and the only injury that is
significant is one that they believe it was self-inflicted and
he is under continual care in the hospital down there.
Senator Sessions. I think that is important.
I know you substantiated two allegations. One of those was
the use of duct tape. Now, I do not dismiss your finding, but I
would like for you to reiterate, that is one of your two
findings of abuse there, of allegations. Explain the duct tape
situation?
General Schmidt. Sir, there was a prisoner who was
undergoing interrogation and by various accounts he began to
chant either Koranic verses or a resistance message, according
to two witnesses. There were some number of other detainees, 12
to 17, I believe I heard those numbers, in the vicinity of
that. The interrogator directed the military police to quiet
him down.
The military policeman looked around and saw some duct
tape. He says: This? The interrogator said: Go ahead and do it.
He took some duct tape, put it on the detainee's mouth, and
within a moment or so he had worked that off by wiggling his
jaw, I guess, around.
They applied another one. They wrapped it around his mouth
and his face. He continued to work hard and he was able to get
it off his mouth. Finally, the military policeman said: Now
what do I do? He said: Just wrap it around his head top to
bottom, around his mouth, and that will do it. In fact it did.
The FBI allegation of that came when the interrogator or
the supervisor walked down the hall and said to two FBI
agents--and he was laughing--he said: You need to come see
this. That is where the allegation came from and that was the
situation that generated that particular allegation.
Senator Sessions. I think that shows the sensitivity of the
military to improper conduct. I am not sure that was improper
under the circumstances. Perhaps it was unnecessary, but it may
not have been. I was not there. I do not know the nature of the
prisoner or what kind of message he may have been sending to
other prisoners.
I remember the colonel in Iraq who fired a gun when his
troops were taking fire near the head of an al Qaeda or
terrorist person. He was cashiered out of the military, removed
from the military. He did not touch the man, but he used a
threat of force in a way that was improper and was removed.
With regard to Abu Ghraib, we have said over and over and
over again that the higher-ups are involved, higher-ups are
involved. I think we ought to say right here and now that the
higher-ups were not involved in Abu Ghraib. They prosecuted
those people who were involved, whose pictures showed they were
involved. They have been convicted and sentenced to jail, and
they have not produced any evidence, credible evidence at all,
that higher-ups ordered them to do that. In fact, the facts
show there was no interrogation ongoing. It was just bad
behavior by a group of soldiers on the graveyard shift that
should never have happened. They are now in jail.
General Schmidt, you made a finding that, while some abuses
may have occurred, that you found no inhumane treatment; is
that correct?
General Schmidt. I found those--none crossed the line into
being inhumane.
Senator Sessions. None crossed the line into torture?
General Schmidt. That is correct, Senator.
Senator Sessions. You found, I suppose, no systematic plan
or process by which prisoners were subjected to inhumane
treatment or torture?
General Schmidt. That is correct, Senator.
Senator Sessions. You were free to conduct this
investigation as you saw fit?
General Schmidt. That is correct. It was very pointed. The
objectives were very pointed on it.
Senator Sessions. Mr. Chairman, I think we have created an
entirely new misimpression somehow, some way, of what is going
on at Abu Ghraib. I look forward to going with you tomorrow. I
know you are personally looking forward to examining what went
on there. Senator Roberts has been, and I went when it was in
the old prison some time ago. This is a new facility. We spent
$100 million, I believe, on it. If it is the site they showed
me where they intended to build it, it is a beautiful site on
the water.
But, Mr. Chairman, I think that it is important for us to
remember that these are dangerous individuals; that 17,000 have
been detained in Iraq; only 800 have been sent to Gitmo. Now
only about 500, a little more, remain. Of those 200 or so that
have been released, 12 of them have been rearrested for waging
war against our soldiers and against the peace and stability in
Iraq or Afghanistan. These are not people that are not
dangerous. They are dangerous.
I would say one more thing. Since they are unlawful
combatants, they are not entitled legally to the protections of
the Geneva Conventions and we have a right to interrogate them
and we have a right to try them by military tribunals, in my
opinion, just like the case, the defendants in the Ex parte
Quirin case, were tried during World War II.
These are not American citizens charged with fraud or dope
dealing. They are terrorists waging a war against civilization
and democracy around the world. I think we cannot deny
ourselves the right to utilize techniques within the rules of
war that allow us to interrogate and gain information that can
save innocent lives.
Thank you very much.
Chairman Warner. Thank you very much, Senator.
It is the intention of the chairman to take a trip on
Friday to Gitmo and, members of this committee, we may have a
seat or two available if they so desire.
Senator Sessions. I hope to join you.
Chairman Warner. Yes, I understand that. But I have to
point out that there is a small item of a hurricane and that is
now being examined by the aviation department very carefully.
Senator Kennedy. Mr. Chairman, just briefly in response to
what I had said here. I am always glad to have someone
misrepresent what I am saying and then differ with it, which we
had here.
This country has had a very proud tradition adhering to the
Geneva Conventions. Some people think that they ought to--that
kind of condition should not continue to be a part of American
policy. I differ with them because I accept the concept that
the principal reason we have the Geneva Conventions is to
protect Americans.
Chairman Warner. Who may become captives.
Senator Kennedy. Yes.
The fact is I would hope that we are not going to go and
set as a standard the lowest level of conduct and say, well,
because another side does it we are going to do it as well. I
always remember, echoing in my ears what John McCain said, and
that is: The more they tortured me, the less I was willing to
give them. John McCain. John McCain said that.
So let me finish. So when we get all of our lectures out
here on this committee about how we are treating people, it
does seem to me that it is appropriate that it is easy to get
all worked up and all of us do about the challenges that we are
facing as a country and society and about the service men and
women that do so nobly. But I would certainly hope that we are
not beyond the point of understanding what has been
historically and I believe still is in the best interests of
American service men and what works in terms of getting
information and intelligence, both works in getting the
information and intelligence and that can later be used in
terms of bringing those individuals to justice. That is
basically the point.
Chairman Warner. Senator, I assure you there are a number
on this committee who are working on that very issue today.
Senator Sessions. Mr. Chairman, I would just say, the
Senator said we are going to be as bad as those we fight, just
a few minutes ago. We are not as bad as those we are going to
fight. We are not adopting their techniques. We discipline
people who violate the law or the rules. As a matter of fact,
almost 200 service personnel have been disciplined in one form
or another for failure of discipline.
Chairman Warner. We have to move on, gentlemen.
Senator Sessions. I just feel like we need to be careful
about what we say about those who serve us.
Chairman Warner. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
I do not know what the headlines are going to be written
about this hearing today, but I hope they include the
conclusion that AR 15-6 found no evidence of torture or
inhumane treatment at JTF Gitmo, notwithstanding some of the
statements that have been made here and elsewhere. I think that
is an important conclusion.
General Craddock, you were engaged in an exchange on the
Geneva Conventions. But as you pointed out, the detainees here
are either members of the Taliban or al Qaeda fighters. In the
case of al Qaeda, of course they do not wear a uniform, they do
not recognize a chain of command, they do not conduct their
activities according to the law of war.
It is interesting, during the confirmation proceeding for
the Attorney General, Alberto Gonzalez, we had quite a debate
among legal scholars, including the Dean of Yale Law School,
who ultimately conceded that being non-signatories to the
Geneva Conventions, not recognizing a military hierarchy or a
law of war, that al Qaeda was not covered by the Geneva
Conventions. I believe that is essentially what you have said
here today, and I happen to agree with you and I think it is
really irrefutable.
Three Federal courts have examined that, have so concluded,
and I think it is absolutely right.
On the other hand, you have stated it is our policy not to
engage in torture or inhumane treatment, as being inconsistent
with our values, and certainly I am relieved to know that this
exhaustive investigation so concluded.
I want to ask about the 20th hijacker, al-Qahtani, as he
has been identified in other contexts. This is the individual
that apparently had committed himself to committing suicide,
that is losing his own life, in pursuit of his cause by
participating in the United Airlines Flight 93 that, due to the
bravery of civilians on board that flight, went down in a field
in Pennsylvania rather than hit the Capitol or the White House
or other places that they intended.
This individual, in addition to being an al Qaeda
operative, once he was captured in Afghanistan and transferred
to Gitmo, he withstood any interrogation techniques for about 8
months; is that not correct, General Craddock?
General Craddock. That is correct, Senator.
Senator Cornyn. It was in that context, as well as the
ongoing war that we were engaged in and our efforts to gather
actionable intelligence in order to protect not only our troops
in the field but our civilians here in the homeland, that
efforts were made to defeat his counter-interrogation defenses,
and it was in that context that what we have heard discussed
occurred.
I guess when I read the conclusion here--I want to ask you
a little bit about that--as a result of this investigation--and
I understand, I believe that General Schmidt and General Furlow
have done an admirable job here. But just in terms of the
ultimate conclusion about General Miller, it is my
understanding from what has been said here is that the
interrogation plan used on al-Qahtani was legally permissible
and that there has been no finding that it deviated in any way
from a lawful interrogation of this al Qaeda operative. Is that
correct, sir?
General Craddock. The plans, the special interrogation plan
developed, used both FM 34-52 interrogation techniques and
those authorized in the 2 December memo. Now, the interrogation
technique then is manifested by the development of the JTF
Gitmo application, and that is where the interrogators look at
what is it that this guy has resisted, what have we tried that
did not work, how do we get him out of his comfort zone, how do
we get him to be discomfortable, to be on edge? We need to be
able to break his resistance. Then they develop those
applications to do that.
Those were found to be, again consistent with, in
accordance with, pride and ego down and futility.
Senator Cornyn. The means used on this detainee, al-
Qahtani, were using authorized procedures; is that correct?
General Craddock. As I understand and read the report, that
is correct. But I will defer to General Schmidt. Is that
correct, Mark?
General Schmidt. They were within the broad authorized
techniques, authorized by the FM and the SECDEF memo of 2
December, that is correct. At the application end, they did
stay above the threshold of inhumane treatment. There was no
torture or inhumane treatment.
Within that, I found that each individual act, whether
authorized or unauthorized, had a rolling cumulative effect on
this individual, and it was the cumulative effect that we found
to be abusive in its totality and degrading.
Senator Cornyn. General Schmidt, I want to lay as a
predicate, my great admiration for you and all of our folks in
the military, but particularly for the difficult job that you
have undertaken here. My dad served 31 years in the Air Force
and I have great admiration for you and everyone who wears that
uniform.
But I have a little trouble understanding how, if an
interrogation on 1 day is within authorized limits and another
day it is within authorized limits, how you can say that the
cumulative effect was abusive and degrading and somehow fell
below authorized limits. Can you explain that for us?
General Schmidt. Sir, the limits of each interrogation is
what they were, and they were usually limited by the amount of
time that an interrogation team would be in the interrogation
room. It is much like, the analogy would be, playing music that
you do not like. That might be annoying. If there are no limits
placed on the duration that you are going to listen to that
music--pick your worst music and you listen to it and somewhere
at 10 hours you think you have had enough, and maybe at 20
hours. At some point there might be a limit where that is
abusive music, the environment becomes abusive. That is the
cumulative effect that we tried to get to.
Senator, I will tell you that it was very difficult for us
as military members to go in there and look for alleged abuses.
Of course, you look at a character like al-Qahtani and you say,
do the means justify the ends? That was not part of our
charter. It is did something happen? Were there abuses? That is
what we identified.
Then we attempted to say, well, were they authorized or
not, substantiated or not? Then over the course of time we felt
that this particular individual, as heinous a person as he is,
the cumulative effect of that long duration, 160 days of the
segregation and the increased aggressive interrogation
applications, constituted abusive, degrading treatment.
It is pretty hard to look through some of those things that
are in there and say, was he degraded? What is the definition
of ``degrading'' to a reasonable man? So we had to make those
judgment calls and, sir, that is what we did.
Senator Cornyn. Finally--and I respect your answer--for
myself, I look at this person as someone who is not only
willing to take his own life in pursuit of his cause, but
obviously the lives of a lot of other innocent people. I
noticed he was dehydrated due to his own refusal to take
fluids, so he had to be put on an IV. He obviously was denying
himself. You were not denying him water. He was denying it to
himself, as well as fasting.
So I personally am glad that the interrogators used humane
and authorized interrogation techniques to get the information
out of him that they did, and I trust that they saved American
lives and lives of other innocent people in that context.
Thank you very much.
Thank you, Mr. Chairman.
Chairman Warner. Senator Chambliss.
Senator Chambliss. Thank you very much, Mr. Chairman.
First of all, let me join the chorus of my colleagues in
commending you gentlemen for the job you did. This is an
extremely difficult task that you were given, and obviously
there are still some stones unturned that you are going to go
back and look at. But at the end of the day I do not see
anything we have talked about today affecting a change in your
conclusions.
But even with the difficulty of the job that you three men
had in carrying out your duty, the job that those guards and
those men and women who are serving at Gitmo is frankly much
more difficult in my opinion. I have been to Gitmo twice. I was
there before Camp Delta was built. I went back after Camp Delta
was built.
The images that we see on the television today relative to
Gitmo always show the old cages that these prisoners were put
in when they first went down there. Those cages, as we know,
have not been used in years. Camp Delta was built for the
purpose of providing them with more adequate housing, more in
line with the Geneva Conventions, although we probably did not
have to do that.
When I was down there the first time, I was told by guards
about the fact that these prisoners were spitting on them, that
they were taking human feces and throwing it on them, and they
were having to put up with these kinds of conditions. We just
had a delegation that returned from Gitmo this past week, a
group of Senators that went down there. Those Senators came
back with these same stories from individual guards who now, in
spite of the new accommodations that the prisoners have, they
are spit on regularly, they are cursed regularly, human feces
are thrown at them regularly.
Two African Americans from my home State made the comment
to my colleague from Georgia about the fact that the worst
racial slurs that could be used against an African American are
used against them regularly.
This is the type of condition that our troops are in. Under
those conditions we have an allegation that there are
allegations of 3 substantiated cases out of 25 interrogations
that have taken place. I join Senator Sessions, Senator
Roberts, and Senator Inhofe in thinking that, gee whiz, under
the conditions that our folks are literally in combat in Gitmo,
that is amazing, that we have not had more than three.
One of them, she was spit on and went out of the room and
did something she should not have done. But it was a very
emotional act on her part. Certainly she should not have done
it. She has been reprimanded, as she should have been, and we
have moved on.
I am going back Monday a week from now, Mr. Chairman. If
anybody cannot go with you, they are certainly welcome to go
with me. I know I have invited all the members of the
Intelligence Committee, but anybody on this committee is
welcome to go.
General Craddock, you are absolutely right in your comments
regarding that training manual. Let us do not stick our head in
the sand. The American people need to know and understand that
al Qaeda is watching this hearing today as we speak. Their
training manual has already been rewritten, I am sure, to
upgrade it to where now the terrorists are being trained as to
how to respond to new types of interrogation that we may
utilize.
So is this the right thing to do or is it not? I guess
Senator Sessions may be right in one respect, but I respect the
chairman and if it is going to be public then it is only right
that we come here today to let the American people know and
understand what is really going on in Gitmo.
While I disagree with some of the statements that Senator
Clinton made relative to this issue, I do agree with her on one
thing. That is, the ultimate question, General Craddock, is
whether or not we are being effective with our interrogations.
I think I know the answer to that because I have been told that
answer by folks who have been down there. We have some
Intelligence Committee staff that were interrogators.
But let me just give you an opportunity to answer that
question: Are we getting information from these prisoners at
Gitmo and have we gotten information in the, what, 3\1/2\
years, 2\1/2\ years now, that they have been there that has
saved the lives of American men and women?
General Craddock. Senator, absolutely yes, in response to
your question. We have and we are today still getting
information that is relevant, that is actionable, and is
supporting our servicemembers in the field in the global war on
terrorism. I will defer to my colleagues to further amplify.
General Schmidt. To my knowledge, that is absolutely a true
statement. It continues to be a fairly fertile ground for
information.
General Furlow. Yes, sir, Senator. In my time at Gitmo
visiting with them, they pride themselves on being a model for
strategic intelligence gathering, and they continue to get
intelligence. Now, the specifics, I am not privileged to that,
nor did I delve into that during the portion of our
investigation.
Senator Chambliss. One other thing I think we need to
emphasize and that is the type of people who are down there.
They have been characterized, General Craddock, as the meanest,
nastiest people in the world, and their sole purpose in life is
to kill and harm Americans right now, and we know that.
In spite of that, we have released some 250 of these
prisoners, I believe, over the last 2 years. I also know that
we have had public information relative to at least 10
individuals who were incarcerated at Gitmo, who were released,
who have either been captured or killed on the battlefield or
who we know are operating today in the process of killing or
trying to kill and harm Americans. Am I correct about that?
General Craddock. That is correct, Senator. We believe the
number is 12 right now, confirmed 12 either recaptured or
killed on the battlefield.
Senator Chambliss. Those are the ones we know about. That
does not include the ones that we do not know about, who had
nowhere to go but back to Afghanistan or back to Iraq to again
try to kill and harm Americans.
So I look forward to going back to Gitmo for any number of
reasons, obviously to observe what is going on. One other thing
that I did while I was down there, after Camp Delta was built I
had the opportunity to go in and observe an interrogation
taking place or several interrogations taking place, that they
took me into the room and we looked through the glass where
they could not see us but we could see them. Obviously there
was nothing improper going on.
As I walked out, I said: ``What is going on over here?''
They said: ``Another interrogation.'' That was not one they
planned to take me to see. I said: ``Let us go in.'' We did,
unannounced, and obviously there was nothing improper going on
relative to an interrogation that was not planned for me to
see.
So I again appreciate the job that you do. But there are a
lot of folks from my home State who were either guardsmen,
reservists, or active duty that were at Gitmo on the occasions
that I have been down there and ones that I have talked to who
have been there and have come back, and the conditions under
which they have had to operate have been deplorable from the
standpoint of the treatment directed at them by the prisoners.
In spite of that, they have just done a very professional
job in my opinion of conducting themselves and making every
branch of the Service proud that they are part of that Service
in their rendering of that Service at Gitmo.
So gentlemen, again, thank you very much for your service
to our country.
Thank you, Mr. Chairman.
Chairman Warner. Thank you very much, Senator. I think it
is extremely important that you brought out those facts with
regard to the abuses being suffered by the military and
civilian personnel tasked with this difficult interrogation
process. It has been over the years. I judge by now that has
been somewhat curtailed and contained, or is it still at a
level that is troublesome?
General Craddock. Mr. Chairman, any incident is
troublesome. We now have detainees, if you will, aligned based
upon their actions towards the guards. We know where to expect
it most. However, I was at Gitmo recently. I talked to some
sailors who were on the guard force in a camp that was
supposedly with detainees who were more cooperative, and I
said: What is your worst day? The answer was, they did this or
they did that. So it happens in most of the camps still
occasionally.
Chairman Warner. It continues to happen.
General Craddock. Indeed, sir.
Chairman Warner. I hope appropriate measures are taken.
Senator Levin, you wish to correct the record?
Senator Levin. No, not a correction; just clarification of
some factual matter for the record.
Chairman Warner. Let me interrupt for all members. We will
reconvene just as quickly as we can in room SR-222 for a closed
session of this hearing.
Senator Levin. This will just literally take a couple
minutes, and I thank you, Mr. Chairman.
As I understand your task, General Schmidt and General
Furlow, it was to look at interrogations where the FBI was
present; is that correct?
General Schmidt. No, sir. To be more correct, we were to
look into allegations of FBI assertions that interrogations had
taken place. They did not see these interrogations. They
possibly had heard of it.
Senator Levin. I see.
General Schmidt. It was any allegation that they had that
we were doing things untoward.
Senator Levin. About how many interrogations would have
been involved in what you looked at? 50? 100? Give us a rough
idea?
General Schmidt. I am going to say thousands.
Senator Levin. You looked at thousands of interrogations?
General Schmidt. Data that would have covered thousands.
Senator Levin. Would you be able to determine whether there
were abuses at 24,000 or just at a few thousand or a few
hundred? Give us an idea where you made a determination as to
whether there was abuses or not?
General Schmidt. To be sure I am close, one moment.
[Pause.]
General Furlow. Sir, in the process of the methodology and
looking at the data that is down there, in addition to the FBI
memos and electronic correspondence and the unredacted
portions, reviewing them, Gitmo has a very extensive system
called the Joint Detainee Information Management System (JDIMS)
which--and I had the opportunity to go through and selectively
sample a cross-range of these detainees and their records that
they have provided and through the logs that the MPs provide
that merges into the program there, allowing you to look at a
large number of interrogations in a very short period of time.
The next step of methodology we pursued was by actually
looking at the paper copies, which were the main means of being
able to conduct business prior to around the first calendar
quarter of 2003.
So to sit there and say that we have been able to review a
couple thousand, 3,000 interrogations is accurate.
Senator Levin. Fine, 2,000 or 3,000.
General Furlow. Yes, sir.
Senator Levin. Through those records.
General Furlow. If there was an indication based on a
particular detainee that there was a possibility, then we would
trace that fact pattern to follow-on interrogations.
Senator Levin. You did not talk to the people who carried
out those interrogations?
General Furlow. No, sir, I talked to those people.
Senator Levin. Oh, you did talk to all the people who were
interrogated, 2,000 or 3,000?
General Furlow. No, sir. I misunderstood your question. I
talked to the interrogators that were presently at Gitmo.
Senator Levin. I do not mean that, but did you talk to the
interrogators at 2,000 to 3,000 interrogations?
General Furlow. No, sir. No, sir.
Senator Levin. It would be a lot fewer than that?
General Schmidt. Sir, we were----
Senator Levin. It would be a lot fewer than that?
General Furlow. Yes, sir. But what we did do is in the
process of identifying who those were we went and interviewed
as many as we could.
Senator Levin. Okay.
General Schmidt. But there were interrogators who had
interaction with other interrogators that we did not know, that
would have been asked or would have known about other
opportunities for abuse. So this thing interlaced well beyond
those that we had direct contact with, that could have surfaced
an allegation.
Senator Levin. Okay.
Next question: Were you tasked to look into cases where
there were criminal proceedings pending or was that something
you were not supposed to get into?
General Schmidt. The criminal proceedings that were pending
had nothing to do with detainees at Gitmo. I discussed that
with the appointing authority and it turned out it was not
related at all.
Senator Levin. So none of the pending criminal cases
related to any allegations of detainee abuse?
General Schmidt. That is correct.
Senator Levin. Thank you. Did you make any judgment on the
legality of techniques or only as to whether or not those
techniques were authorized, not authorized, or whether or not
they took place?
General Schmidt. Sir, the legality was not within our
purview. Whether, again as I stated before, the means justified
the ends was not within my charter either.
Senator Levin. That is helpful.
Thank you, Mr. Chairman. Thank you.
Chairman Warner. We will now reconvene in room SR-222 and I
thank all participating. I think, General Craddock and General
Schmidt, would you like to identify those principals that you
have with you that worked on the report so that their names can
be a part of this important record?
General Craddock. Thank you, Mr. Chairman.
Before I do that, may I have a correction? I would like to
make a correction that I think is important to do in a final
closing statement. First, I guess I miscommunicated to Senator
Reed--it is unfortunate he is not here--because in his final
statement he indicated displeasure with--apparently he believes
or as I understood he said that I have by my decision now tried
to pin the blame for something on an lieutenant commander.
That is not the case. My modification on that
recommendation was----
Chairman Warner. On Miller?
General Craddock. On the lieutenant commander.
Chairman Warner. The lieutenant commander.
General Craddock. Was the fact that I felt that, because of
the course of the investigation, two individuals very critical
to that investigation, the staff judge advocate and his
supervisor, refused to comment and to be interviewed; that the
way to force that to happen and potentially then to find out
that the claim from the lieutenant commander that he got
approval to proceed to communicate the threat from his
supervisor and his servicing staff judge advocate, would be to
force them to make a statement under oath.
So my intent there was not to in any way ascribe blame to
him by asking for a criminal investigation. It was to indeed
determine that his allegation was true because those other
people critical to that determination would not make a
statement.
Second, if I may, much of what we have talked about here
today is all focused on one detainee, 063, al-Qahtani, the 20th
hijacker. When did this happen? The fingerprint correlation to
the 20th hijacker was late summer of about a year, less than a
year, after September 11, when we were still wondering when and
where is the next attack, as we do today, but maybe with
greater angst and greater concern.
So when we made this connection and we realized we had had
him for 8 months and nothing had happened, he was not providing
information, there was an intensity that we must do something
to find out what he knows, because our servicemembers, our
Nation, could be at risk if he is number 20, which he was. So I
think that has to be put in perspective. Now, that is one
individual with interrogation techniques that some may find in
a cumulative effect degrading and abusive. That is not the
population of detainees and the techniques and interrogation
applications used. That was one individual. There were two
plans developed, only one implemented. The rest of the
detainees never got into a special interrogation plan,
completely different techniques and applications used for them.
I think we need to keep that in perspective as we think
through this.
Now, sir, if I may----
Chairman Warner. Let me ask General Schmidt and General
Furlow if they have any concluding comments, and then we will--
do you have any concluding comments? I will give each of you
the opportunity.
General Schmidt. Mr. Chairman, I just want to make sure
that it is clear--let me get back to the admonishment issue--
that I agree with General Craddock that commanders to an extent
rely on the judgment and the experience of their people, their
subordinate commanders, to carry out the duties that they give
them.
This was not an assertion of criminal conduct and Major
General Miller did not violate any U.S. law or policy. My
recommendation was that he failed to monitor or adequately
supervise the interrogations of one high-value detainee. I
think the report spells that out in some detail.
So I just wanted to make sure that that was clear. I know
Jeff Miller, I have worked with him. He is a fine individual,
and he had a tall task to complete down there. As we
interviewed witnesses on these alleged abuses and that was the
focus, to a person very few did not state that, thank God for
General Miller to come down there and clean up some of the
chaos that had been organizationally present when he arrived.
So this was a hard task to do. But again, we were focused
on the assignment, not on the periphery part of this. We wanted
to surface and bubble up the truth, the facts, and we have
presented those in this report.
I do thank you for hearing us out.
Chairman Warner. I thank you, and I assure you this
Senator, and I think that all of us, respect the integrity, the
difficulty, and your professionalism in handling that delicate
issue.
General Furlow?
General Furlow. Thank you, sir. Regarding a review of the
FBI documents and witnesses, I would like to put in the record
here that we reviewed hundreds of documents from the FBI,
including unredacted e-mails. We also over several months
worked diligently to speak personally with every available FBI
agent. We also made specific requests to speak with the ones we
were not able to for a minimum of three different occasions.
Ultimately, we considered the best material evidence that
we had to write a report in a timely manner.
I would like to communicate, sir, that it has been truly an
honor to appear before this body today, sir.
Chairman Warner. I thank you very much.
Senator Levin. Can I just add my thanks, Mr. Chairman, to
yours. We have two officers who have written a report to the
best of their ability. I want to commend them for the
professional way in which they have done this to the best of
their ability. It is not easy, I am sure, to reach judgments,
regardless of the judgments in this case. But you two have done
the best you can.
I want to commend you for not just your report, but, very
frankly, for the slides, which I think helped us to go through
this. Except for the inability to read that one number in the
lower right-hand corner, these slides were extremely helpful to
us. I just want to add my thanks. Thank you all, you too,
General Craddock, for being here this morning.
Chairman Warner. Thank you.
Now, General, if you would like to put the names of your
colleagues in the record?
General Craddock. Thank you, Mr. Chairman. I will introduce
my team: My Executive Officer, Colonel Milo Miles; Staff Judge
Advocate, Captain Marty Evans; Public Affairs Officer, Colonel
Dave McWilliams; Colonel Jorge Silveira there in the second
row, who is the Chief of my Actions Group; and Colonel Rob
Levinson, who is my Head Representative from the Washington
Field Office.
I will turn it over to General Schmidt.
General Schmidt. Sir, I would like to start with General
Furlow. He and four members spent 2 months pulling this
together, doing the majority, the vast majority, of the
interviews. When I came in it was because there were some
general officers to interview and eventually we got to seven of
those.
John, go ahead and introduce your original team.
General Furlow. Sir, in addition to myself, there was
Colonel Alex Carruther, who is not here today; Sergeant Major
Beverly James, who is also not here today. Who is here today is
Captain Harvey ``Chip'' Jarvis, right back here.
Thank you, sir.
Chairman Warner. Thank you very much.
General Schmidt. Sir, the team I brought: I drafted my
command's Staff Judge Advocate, Colonel Joe Heimann. He now
works for Chairman's Legal, and we have borrowed him and he has
put in yeoman's work on this.
My Commander Action Group Chief, Lieutenant Colonel Danny
Wolf, has done great work. He typed past midnight last night
making these slides to put this together. My Executive Officer,
Scott Cirrone, is off doing personnel duty. He is an A-10
fighter pilot. Again, this is not our day job. He did great
work. The logistics was pulled together by my Aide, Captain
Hector Lopez, everything from getting our airlift to the paper,
the sending of things over here, to getting us sandwiches with
extra jalapenos because we missed those from Arizona.
They did yeoman work. The team worked together. To step in
for 1 month of a 3-month investigation, John Furlow did an
absolutely outstanding job.
Chairman Warner. I thank all of you very much.
We have had an excellent hearing. I felt it very important
for this committee to have direct access to each of you in the
context of a hearing, which we have had today, for it to be
subjected to such cross-examining and expressions of viewpoints
as the members may wish to make, and indeed that did take
place.
Thank you very much. We are adjourned; we will now
reconvene in closed session in room SR-222.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John McCain
SCOPE OF ARMY FIELD MANUAL 34-52
1. Senator McCain. General Craddock, in the hearing before the
Senate Armed Services Committee on July 13, 2005, you asserted that the
following interrogation techniques are approved in the Army Field
Manual (FM) on Interrogation 34-52, under the approach called ``Ego
Down and Futility'':
- forcing a man to wear a woman's bra and placing underwear on
his head;
- tying a leash to the subject and leading him around the room,
forcing him to perform dog tricks;
- standing naked for several minutes with female interrogators
present; and
- pouring water over their heads.
Is it your opinion that the FM authorizes or in some way allows
these examples to be used during interrogations by Defense Department
personnel? If it does, or implies that these techniques are OK, should
the manual be changed? Please fully explain your answer.
General Craddock. I approved the investigation's finding that the
first three techniques listed above were authorized under FM 34-52,
Intelligence Interrogation. FM 34-52 provides broad guidance on a
number of techniques such as ``ego down'' or ``futility.'' FM 34-52
does not specify each and every application that is authorized under a
particular technique. At Joint Task Force Guantanamo (JTF Gitmo), the
interrogation team devised specific applications for one particular
detainee--Mohammed al-Qahtani. Al-Qahtani had previously resisted
conventional criminal investigation interrogation techniques for
months. These specific applications, developed by the interrogation
team, under the ego down and futility techniques were creative and
aggressive. However, these applications did not violate any U.S. law or
policy.
FM 34-52 was designed to provide guidance to traditional, state
against state armed conflicts where the Geneva Conventions are fully
applicable to enemy prisoners of war. I believe FM 34-52, and
Department of Defense policy or doctrine in related areas, should be
updated to reflect the new phenomenon of conflict against enemy
combatants. In fact, I approved several recommendations from the
investigation to this effect and I forwarded the investigation report
to the Department of Defense for further consideration of these
matters.
With regard to the fourth technique listed above, I recall making
no assertion at the hearing that the technique was approved or not
approved. I only recall a question posed by Senator McCain to me about
``water-boarding,'' a technique never approved for use.
RECOMMENDED REPRIMAND
2. Senator McCain. General Craddock, one of the recommendations
from this investigation was that Major General Miller should be held
accountable for failing to supervise the interrogation of ISN 063 and
should be admonished for that failure. But in your review of the
investigation you disapproved of the recommendation. Why?
General Craddock. I disapproved Recommendation No. 16, that Major
General Miller be held accountable for failing to supervise the
interrogation of al-Qahtani and be admonished for that failure because
the interrogation of al-Qahtani did not result in any violation of U.S.
law or policy and the degree of supervision provided by Major General
Miller did not warrant admonishment under the circumstances. As the
commander, even in the early days of his assignment, Major General
Miller was responsible for the conduct of his subordinates. However, as
all commanders must do to the extent they determine appropriate, Major
General Miller relied on the judgment and experience of his people to
carry out their duties in a manner that was both professional and
authorized.
The evidence shows that he was not misguided in his trust, since
there was no finding that law or policy was violated. Major General
Miller did supervise the interrogation in that he was aware of the most
serious aspects of al-Qahtani's interrogation: the length of
interrogation sessions, the number of days over which it was conducted,
and the length of segregation from other detainees.
Additionally, I think it is important to note that Major General
Miller arrived in Gitmo for the first time when he assumed command on 4
November 2002. Upon arrival, he assumed command of two organizations,
JTF 160 and 170 that upon his arrival were merged into JTF Gitmo. Upon
assuming command of JTF Gitmo, Major General Miller became responsible
for a multitude of tasks that demanded his immediate attention: merging
the two task forces into the one task force that would have a common
operating system for both the interrogation element and the detention
element; managing the construction of new facilities and the manning,
equipping, training, and organizing of the force; developing standard
operating procedures for and improving the cooperation between
interagency interrogations; and, last but not least, improving the
quality of life for the military personnel of JTF Gitmo.
Additionally, the report of investigation found that the cumulative
efforts of some interrogation applications led to abusive and degrading
treatment. However, the report did not identify which applications or
frequency of any or all applications were contributory, which in my
judgment was essential to a finding of accountability.
FBI ALLEGATIONS
3. Senator McCain. General Craddock, what was the Pentagon's
initial response to the FBI's allegations? How were they handled
throughout the chain of command?
General Craddock. An FBI official wrote a letter to the Army
Provost Marshal General on 14 July 2004 regarding ``suspected
mistreatment of detainees'' at JTF Gitmo, specifically referring to
three incidents allegedly involving ``highly aggressive interrogation
techniques.'' The Army Criminal Investigative Division forwarded the
letter to the U.S. Southern Command on 9 August 2004. My Staff Judge
Advocate then coordinated with JTF Gitmo to determine what
investigation, if any, had been conducted. Coordination with JTF Gitmo
revealed the following. The 14 July 2004 letter referred to three
incidents. Of these incidents, the Army's Criminal Investigative
Division investigated one of the incidents shortly after the 14 July
2004 letter (allegations of abuse by an interrogator); JTF Gitmo
investigated another incident at the time of the incident (the ``duct
tape'' incident, October 2002); and the third incident (the overall
interrogation of al-Qahtani) was not investigated by JTF Gitmo because
the allegation did not appear to raise any allegations that went beyond
techniques authorized for al-Qahtani's interrogation. My Staff Judge
Advocate office provided this information to the investigation team led
by Vice Admiral Albert T. Church on 27 August 2004, for their
consideration in preparing a Secretary of Defense directed report on
all Department of Defense detainee operations.
In December 2004, the American Civil Liberties Union (ACLU)
published FBI e-mails that detailed additional allegations of detainee
abuse that were not contained in the FBI letter from July 2004. I had
no knowledge of these additional FBI allegations until December 2004.
Shortly after hearing of these additional FBI allegations, I directed
an investigation into all of the FBI allegations on 24 December 2004.
4. Senator McCain. General Craddock, the Pentagon has repeatedly
assured this committee that all serious allegations of abuse are
investigated. Yet no investigation was launched into the FBI
allegations until the e-mails were released to the ACLU. The government
had all of this information long before it was made public, so why was
there no investigation?
General Craddock. As discussed above, until the ACLU released the
FBI documents in December 2004, I had no knowledge of the additional
allegations. The Vice Admiral Church Report found that the FBI e-mails
were not known to any other DOD authorities either. Once I reviewed the
FBI e-mails, I determined that the allegations merited an investigation
to establish the truth and ascertain what, if any, actions needed to be
taken. Accordingly, I directed an investigation in December 2004.
PUNISHMENT
5. Senator McCain. General Craddock, this most recent investigation
into the interrogations of detainees in Gitmo comes to the conclusion
that there were violations of Secretary of Defense guidance and the
Uniform Code of Military Justice (UCMJ). Have those involved in the
violations been punished in any way?
General Craddock. The investigation substantiated several
allegations and assessed what disciplinary action, if any, had been
taken, and recommended whether additional disciplinary action was
needed.
Substantiated allegations:
A female interrogator touched a detainee and ran her fingers
through the detainee's hair. The interrogation supervisor was given a
written letter of admonishment for failure to document the techniques
to be implemented by the interrogator prior to the interrogation.
A female interrogator told a detainee that red ink on her hand was
menstrual blood and then the interrogator wiped her hand on the
detainee's arm. As the technique was not approved in advance, the
interrogator's supervisor verbally reprimanded the interrogator for the
incident. No formal disciplinary action was taken. The investigation
viewed the command action as inadequate. However, noting the time that
had lapsed and the fact that the interrogator had left the service, the
investigation recommended closing this allegation.
The Interrogation Control Element (ICE) Chief directed that a
military police guard place duct tape on a detainee's mouth to quiet
the detainee. The JTF Gitmo Staff Judge Advocate verbally admonished
the ICE Chief, but no formal command disciplinary action took place.
The investigation viewed the admonishment as inadequate and recommended
the ICE Chief be formally admonished or reprimanded. I approved the
investigation's finding and recommendation on this allegation and I
provided the investigation report to the Director, Joint Staff for
forwarding to the ICE Chief's current commander or supervisor for
whatever action, if any, he/she deems appropriate.
There were two incidents of ``short shackling,'' chaining a
detainee to the floor in a manner requiring the detainee to crouch
uncomfortably or lay in the fetal position. However, the investigation
could not find any evidence to assign individual responsibility for
these incidents. As JTF Gitmo now prohibits this practice, the
investigation recommended closing the allegation.
A Navy Lieutenant Commander communicated a threat to a detainee.
The investigation recommended the Lieutenant Commander's new commander
take disciplinary action. I modified the recommendation by requesting
the Naval Criminal Investigative Service conduct further investigation
into the matter before forwarding the report to the current commander
of the officer for action as the commander deems appropriate. I did so
because the Lieutenant Commander alleged he was given permission to use
this technique by his first-line leader and his Staff Judge Advocate
representative. When questioned a second time about this incident, both
of those individuals refused to talk to the investigating officer. In
my judgment, to be fair to the Lieutenant Commander, a criminal
investigation is warranted (as communicating a threat is a UCMJ
violation) .
APPROVED TECHNIQUES
6. Senator McCain. Lieutenant General Schmidt, one FBI agent stated
that he saw detainees held in rooms so frigid that they were ``left
shaking in cold'' and an agent saw a detainee ``almost unconscious in a
room with a temperature probably over 100 degrees'' next to a pile of
his own hair. I realize much of what we may ask about Gitmo is covered
in your investigation, but for the benefit of the American public,
please allow these questions. Are these painful descriptions of the
technique known as ``environmental manipulation,'' in other words,
using extremes of hot and cold to induce suffering and stress?
General Schmidt. The Secretary of Defense specifically approved the
technique of environmental manipulation in the 16 April 2003
memorandum, Counter-Resistance Techniques in the War on Terrorism,
which provides guidance on authorized interrogation techniques. This
technique was approved to alter the environment to create moderate
discomfort.
The Secretary of Defense memorandum further outlines that:
conditions would not be such that they would injure the detainee; and
the detainee would be accompanied by interrogator at all times. This
application must adhere to the general safeguards outlined by the
memorandum, including implementation by a trained interrogator
exercising an approved interrogation plan and applied in a humane
manner.
7. Senator McCain. Lieutenant General Schmidt, are such techniques
now in use or have they been approved for use at Gitmo or in Iraq?
General Schmidt. The technique environmental manipulation is still
an approved technique in accordance with the Secretary of Defense
memorandum dated 16 April 2003. Likewise, the current JTF Gitmo
Standard Operating Procedure permits interrogators to adjust the
temperature.
Techniques approved or not approved for use in Iraq were outside
the scope of this investigation, and I am not qualified to speculate on
interrogation techniques conducted with respect to Iraq.
8. Senator McCain. Lieutenant General Schmidt, how extensively were
these kinds of techniques used at Gitmo?
General Schmidt. The investigation disclosed environmental
manipulation was used on a number of occasions. The investigation
confirmed this technique was used at least five times.
9. Senator McCain. Lieutenant General Schmidt, I understand that
these techniques were officially approved by the Secretary for a period
of only a few weeks between December 2002 and January 2003. The
Schlesinger panel was told that they were used in Gitmo on ``only two
detainees.'' But the FBI e-mails suggest they were used much more
frequently, and over a longer time period. If so, then when did this
begin? Under whose authority were the techniques used?
General Schmidt. On 16 April 2003, the Secretary of Defense
memorandum specifically approved the technique of environmental
manipulation; it remains as an approved technique in accordance with
that guidance. To the best we could determine, on several occasions
during 2002 and 2003, interrogators would adjust the air conditioner to
make the detainee uncomfortable; the application of this technique was
not limited to the two high value detainees.
The approval authority for the use of environmental manipulation is
the team chief supervising the interrogators.
10. Senator McCain. Lieutenant General Schmidt, was the Schlesinger
panel misled and, if so, by whom, and why?
General Schmidt. My investigation was a limited AR 15-6
factfinding, independent investigation. I did not attempt to reconcile
my investigation with any other investigation. The Schlesinger question
is outside the scope of my investigation, and I am not qualified to
speculate on the intent of those responses to the Schlesinger panel.
STRESS POSITIONS
11. Senator McCain. Lieutenant General Schmidt, according to press
reports, FBI e-mails described detainees ``chained hand and foot in a
fetal position on the floor, with no chair, food or water,'' who had
``urinated or defecated on themselves and had been left there for 18-24
hours.'' I would hope that this is an approach we would all find
unacceptable. But is this simply a vivid description of a ``stress
position,'' a technique that was approved for use at Gitmo and Iraq at
various times or does this differ in character from the stress
positions that were approved?
General Schmidt. We found no evidence of detainees being deprived
of food and water. We did find that military interrogators improperly
chained detainees and placed them in a fetal position on the floor on
at least two occasions; this was an unauthorized technique. We also
found that ``short shackling'' was initially authorized as a force
protection measure during the in-processing of detainees. However,
since then, current JTF Gitmo leadership has verbally prohibited
``short shackling.''
Regarding the allegation by an agent who observed a detainee
deprived of food and water while chained to the floor, we considered
the agent's statement made in a 13 July 2004 e-mail and a 9 September
2004 FBI telephonic interview. We made several efforts to conduct our
own interview, but our FBI liaison continually advised us the agent was
unavailable. (Brigadier General Furlow has been directed to seek FBI
assistance in conducting interviews of FBI agents who were unavailable
during the investigation.) During the course of our investigation, we
were unable to corroborate any allegations that detainees had been
denied food or water. Also, because of the inconsistencies in that
agent's testimony and a lack of any other corroboration, we were unable
to substantiate the second allegation.
The use of stress positions, such as ``standing for a maximum of 4
hours,'' was requested by Commander JTF Gitmo and authorized by the
Secretary of Defense in the memorandum dated 2 December 2002; this
authorization was rescinded 15 January 2003. The AR 15-6 found that a
stress position described as ``chained hand and foot in a fetal
position on the floor'' was never authorized.
USE OF DOGS
12. Senator McCain. Lieutenant General Schmidt, a witness statement
in the report states that using dogs as an interrogation technique was
equal to the fear up technique listed in the Army FM. Does the Army FM
34-52 permit the use of dogs as an interrogation technique in any way?
General Schmidt. The AR 15-6 concluded that Army FM 34-52 does not
permit the use of dogs in interrogation. The Secretary of Defense did
approve the use of dogs to exploit individual phobias in the memorandum
dated 2 December 2002, later rescinded by the 15 January 2003
memorandum.
ARMY FIELD MANUAL
13. Senator McCain. Lieutenant General Schmidt, are the detention
and interrogation techniques employed at Gitmo authorized in the Army
FM?
General Schmidt. This AR 15-6 found a very small number of
incidents of abuse during detention operations; all of which were
appropriately addressed by the command. Detention operations were not
the focus of this investigation.
All current interrogation techniques employed by JTF Gitmo are
authorized by the Secretary of Defense memorandum dated 16 April 2003.
Army FM 34-52 provides guidance on many of these Secretary of Defense
approved techniques. In deciding if an interrogator's actions were
authorized, the 15-6 found it to be authorized if the approach was
permitted by FM 34-52 or SECDEF guidance, and did not violate the
requirement that it be done humanely. We found a technique to be
unauthorized if it clearly exceeded the reasonable bounds of the
defined or permitted approaches in the FM or SECDEF guidance. The AR
15-6 did not consider the restrictions of the Geneva Conventions
outlined in the FM in deciding if a technique was unauthorized because
the Geneva Conventions did not apply to these interrogations.
The AR 15-6 investigation found only three interrogation techniques
that were never authorized: 1) on at least two occasions between
February 2002 and February 2003, two detainees were ``short shackled''
to the eye-bolt on the floor in the interrogation room; 2) sometime in
October 2002 duct tape was used to ``quiet'' a detainee; and 3)
military interrogators threatened the subject of the second special
interrogation and his family.
14. Senator McCain. Lieutenant General Schmidt, are other detention
and interrogation techniques also authorized and if so, can you
describe them?
General Schmidt. Regarding interrogations at JTF Gitmo, the only
techniques ever authorized were from Army FM 34-52 and the Secretary of
Defense memorandums dated 2 December 2002 and 16 April 2003 (found at
exhibits 15 and 16, respectively).
All current interrogation techniques employed at Gitmo are approved
by the Secretary of Defense memorandum dated 16 April 2003. Army FM 34-
52 provides guidance on many of these Secretary of Defense approved
techniques. The details pertaining to the approved techniques,
application, and general safeguards are addressed in the attached
memorandum.
Further, specific guidelines are in place from the Commander,
United States Southern Command, and Commander, JTF Gitmo that further
delineate and restrict the application of approved techniques from the
Secretary of Defense memorandum dated 16 April 2003.
______
Questions Submitted by Senator James M. Inhofe
ACTS INVESTIGATED AGAINST DETAINEE
15. Senator Inhofe. General Craddock, Lieutenant General Schmidt,
and Brigadier General Furlow, I maintain these are detainees we are
talking about here--with knowledge about terrorists' cells and
operations that is useful to the U.S. in understanding the actions of
those who seek to do us harm, of destroying our way of life. They are
not to be coddled, not if we are to get access to the information they
possess, information that will help us in their defeat. I remain, as I
did more than a year ago when we started with this subject--outraged at
the outrage!
What other country would freely discuss interrogation techniques
used against high value intelligence detainees during a time of war
when suicide bombers are killing our fellow citizens and those of our
allies? Why would we freely explain the limitations placed on our
interrogators when we know that our enemy trains his terrorists in
methods to defeat our interrogations? We are handing him new
information to train future terrorists. What damage are we doing to our
war effort by parading these relatively minor infractions before the
press and the world again and again while our soldiers risk there lives
daily and are given no mercy by their enemy?
We must be careful because our enemies exploit everything to their
advantage. In a translated message picked up from Al-Zarqawi to his
followers, he said: ``the Americans are living their worst days in Iraq
now, even Members of Congress have announced that the U.S. is losing
the war in Iraq.'' He assured them ``We will conquer Iraq and then God
willing head on to Jerusalem.'' He called President Bush ``a fool'' and
said that his God is ``anti-Christ.'' Our enemy is listening. Let's be
careful about what he hears.
We find ourselves holding yet another hearing on detainee abuse.
The investigation you have completed seems to show that after 3 years
and 24,000 interrogations only 3 acts are in violation of approved
interrogation techniques authorized by FM 34-52 and DOD guidance. One
detainee had duct tape used to secure his mouth and jaw because he
wouldn't stop yelling at the top of his lungs as he tried to insight an
uprising in the interrogations area. Another was threatened, yet
nothing was done to him or his family and another was tricked into
believing that red ink was another substance that was very offensive to
him.
When you contrast these interrogation techniques with those used by
other countries, those fighting us, those used by us in previous wars,
it is hard to understand why we are so wrapped up in this
investigation. Further, you have determined in all but a couple cases,
appropriate disciplinary action was taken and in all cases no further
incidents occurred. Add to that, the fact that most, if not all, these
incidents are at least a year old, and I am very impressed with the way
the military, the FBI, and other agencies have conducted themselves.
This report shows me an incredible amount of restraint and
discipline was present at Gitmo. Even the small infractions found, were
found by our own government, corrected and now reported. We have
nothing to be ashamed of. What other country, attacked as we were,
would exercise this degree of restraint and self-criticism? I would
like each of you to give your personal professional opinion to the
committee.
General Craddock. In my opinion, very few--if any--countries in the
world today--attacked as we were--would demonstrate the restraint and
transparency of detainee operations as the United States has. The fact
is we started this venture of terrorist/enemy combatant detainee
operations with no precedent and little relevant policy. While some in
our government focused on interrogations yielding viable judicial
proceedings, others--DOD--focused on gaining intelligence to prevent
another attack. As we know now, the two were sometimes at odds. During
this process, standards for interrogation and treatment of detainees
were codified. Where rules were violated by guards or interrogators,
punishment and/or corrective action was taken. This process has matured
over time and today is consistent in application and enforcement. Quite
frankly, when I visit Gitmo I marvel at the professionalism,
dedication, and restraint our servicemembers demonstrate in dealing
with these detainees on a daily basis. I only hope that if I were in
their shoes I could be that good!
In performing our intelligence mission, we continue to emphasize
the U.S. Government's commitment to treat detainees ``humanely, and to
the extent appropriate and consistent with military necessity, in a
manner consistent with the principles of Geneva.'' Along these lines,
we have a solid working relationship with the International Committee
of the Red Cross. We take their recommendations seriously and act upon
them when appropriate. All credible allegations of abuse have been
investigated and appropriate disciplinary action was taken against
those who have engaged in misconduct.
General Schmidt. JTF Gitmo interrogations number more than 24,000
over a 3-year period, and we found only three interrogation acts in
violation of authorized policy. This investigation--one of many--was
briefed in an open forum to scrutinize ourselves to ensure we act in a
responsible manner, now and in the future. Considering the timing of
these events relative to September 11 and the operatives that we had
detained, the context of the environment may lead some to assume
``military necessity'' allowed interrogations to employ cruel,
inhumane, or tortuous techniques. It did not, and incredible restraint
was, and is, demonstrated by our troops in this important endeavor. The
very few instances of unauthorized use of interrogation techniques
clearly highlight the professionalism and humane standards of our
soldiers.
General Furlow. I was appointed to investigate FBI allegations of
detainee abuse during interrogation operations at JTF Gitmo on 28
December 2004. During the course of that investigation, we uncovered
only three acts that violated authorized interrogation policy. It is
not for me to conclude whether that is an example of ``restraint.''
However, I believe the small number of violations versus the large
number of interrogations (over 24,000) speak forcefully for kind of
soldiers (diligent, dedicated and motivated) who are fighting the war
on terrorism. I was proud of my country and military prior to my
appointment as an investigating officer and remain as proud, or
prouder, of my country and military's willingness to reflect and review
and recommend alterations to current operations based on past
experiences.
16. Senator Inhofe. General Craddock, Lieutenant General Schmidt,
and Brigadier General Furlow, what was the worst substantiated incident
of inappropriate use of interrogation techniques you investigated?
General Craddock. As a combatant commander with military justice
authority, characterizing one particular incident as ``the worst''
could be construed as a form of unlawful command influence if an
incident is still being investigated or if a similar type of incident
occurs in the future. Therefore, I do not believe it is appropriate to
respond to this specific question.
General Schmidt. In my opinion, I believe the worst substantiated
incident of interrogation techniques was that military interrogators
threatened the subject of the second special interrogation and his
family. Further, the interrogation logs clearly indicate that the
interrogation went well beyond the ``threat to detain,'' and in fact
was a threat to the subject of the second special interrogation and his
family that violated the UCMJ, article 134 communicating a threat. I
feel this was the most serious incident because it violated the UCMJ.
General Furlow. I believe the worst substantiated incident of
inappropriate use of interrogation techniques was described in our
report on pages 24-26. The report found in pertinent part ``the Special
Team Chief threatened the subject of the second special interrogation
and his family. . .'' A review of ``the interrogation logs clearly
indicate that the interrogation went well beyond the `threat to detain.
. .' and in fact was a threat to the subject of the second special
interrogation and his family that violated the UCMJ, article 134
communicating a threat.''
17. Senator Inhofe. General Craddock, Lieutenant General Schmidt,
and Brigadier General Furlow, was appropriate disciplinary action taken
in a timely manner in each case?
General Craddock. For the same reasons I expressed in response to
Question #16, I do not believe it is appropriate to respond to this
specific question.
General Schmidt and General Furlow. On all but three occasions, the
AR 15-6 found that appropriate disciplinary action was taken in a
timely manner. The 15-6 did find three cases that, in our opinion,
warranted additional action: 1) the use of duct tape was addressed with
an inadequate response--recommend admonish or reprimand; 2) the failure
to monitor ISN 063--recommend admonish; and 3) communicating a threat
to a second high value detainee--recommend discipline.
18. Senator Inhofe. General Craddock, Lieutenant General Schmidt,
and Brigadier General Furlow, have the infractions found been corrected
so they will not occur again and most importantly, are the DOD
guidelines, as currently published along with the guidelines published
in FM 34-52, appropriate to allow interrogators to get valuable
intelligence information while not crossing the line from interrogation
to abuse?
General Craddock. The investigation found that there was no
evidence of the substantiated allegations against individuals occurring
again. In this respect, I believe the infractions have been corrected.
The Secretary of Defense 16 April 2003 memorandum, Counter-
resistance Techniques in the War on Terrorism, is the current authority
for interrogation techniques at JTF Gitmo. The Secretary of Defense
memorandum draws heavily (although not exclusively) upon FM 34-52. FM
34-52, Intelligence Interrogation, was designed to provide guidance to
traditional, state against state armed conflicts where the Geneva
Conventions are fully applicable to enemy prisoners of war. I believe
FM 34-52, and Department of Defense policy or doctrine in related
areas, should be updated to reflect the new phenomenon of conflict
against enemy combatants. In fact, I approved several recommendations
from the investigation to this effect and I forwarded the investigation
report to the Department of Defense for further consideration of these
matters.
General Schmidt and General Furlow. The current JTF Gitmo Standard
Operating Procedures provide specific guidance and controls on all
interrogations, consistent with the Secretary of Defense memorandum
dated 16 April 2003.
Regarding the larger question of the line between interrogation,
intelligence collection, and detainee abuse, it was not within the
charter of the AR 15-6 to draw conclusions on these points. However,
the investigation did disclose that additional guidance is needed in
this area; therefore, the report has five recommendations.
(a) Recommendation #23. Recommend a policy-level review and
determination of the status and treatment of all detainees,
when not classified as EPWs. This review needs to particularly
focus on the definitions of humane treatment, military
necessity, and proper employment of interrogation techniques
(e.g. boundaries or extremes);
(b) Recommendation #24. Recommend study of the DOD authorized
interrogation techniques to establish a framework for
evaluating their cumulative impact in relation to the
obligation to treat detainees humanely;
(c) Recommendation #25. Recommend a reevaluation of the DOD
and interagency interrogation training consistent with the new
realities of the requirements of the global war on terror;
(d) Recommendation #26. Recommend a policy-level determination
on role of military police in ``setting the conditions'' for
intelligence gathering and interrogation of detainees at both
the tactical level and strategic level facilities; and
(e) Recommendation #27. Recommend an interagency policy review
to establish ``standards'' for interrogations when multiple
agencies and interrogation objectives are involved. Particular
emphasis should be placed on setting policy for who has
priority as the lead agency, the specific boundaries for the
authorized techniques in cases with multiple agencies involved,
a central ``data-base'' for all intelligence gathered at a
detention facility, and procedures for record keeping to
include historical, litigation support, lessons learned, and
successful/unsuccessful intelligence gathering techniques.
19. Senator Inhofe. Lieutenant General Schmidt and Brigadier
General Furlow, many different investigations have been conducted into
allegations of detainee abuse while they are in the custody of the
United States. While there have been these alleged incidents, many were
found to be ungrounded. While the two of you conducted your
investigation, you have been called upon to determine to what extent
these allegations were accurate. From what I have seen on my visit to
Gitmo and have been briefed by the military leadership, it appears that
what has been reported by the media has been blown far out of
proportion. In cases where the military has found any mistreatment of
detainees it has disciplined the responsible individuals accordingly
and improved its procedures to prevent recurrence. I would like you to
comment on what has the most egregious violation of a detainee that you
came across in your investigation, the frequency of any such action,
and was such an action deemed in your view to be an anomaly?
General Schmidt. In my opinion, I believe the most egregious
violation of a detainee, as stated in the report, was that military
interrogators threatened the subject of the second special
interrogation and his family. Further, the interrogation logs clearly
indicate that the interrogation went well beyond the ``threat to
detain,'' and in fact was a threat to the subject of the second special
interrogation and his family that violated the UCMJ, article 134
communicating a threat. I feel this was the most serious incident
because it violated the UCMJ.
We did not discover any other instances of an interrogator
communicating a threat to a detainee. Therefore, I conclude that this
was an isolated occurrence that developed as interrogators dealt with
one of two high value detainees known to possess information critical
to the war on terror.
General Furlow. I believe the most egregious violation of a
detainee during the implementation of an interrogation technique was
described in our report on pages 24-26. The report found in pertinent
part ``the Special Team Chief threatened the subject of the second
special interrogation and his family. . .'' A review of ``the
interrogation logs clearly indicate that the interrogation went well
beyond the `threat to detain. . .' and in fact was a threat to the
subject of the second special interrogation and his family that
violated the UCMJ, article 134 communicating a threat.''
We did not discover any other instances of an interrogator
communicating a threat to a detainee; therefore, based on our
investigation this was an isolated occurrence.
GITMO PRISONERS--CHARGE OR RELEASE
20. Senator Inhofe. General Craddock, a lot of controversy has
surrounded the Gitmo prisoners--inflammatory statements have been made
and inflammatory articles have been written. Many claim that we should
charge these prisoners or just let them go. This is of course the same
group of people who believed we should treat terrorism as a crime and
not as a war. This is the same group of people who watched as Osama Bin
Laden and his thugs attacked American interests repeatedly and simply
sent the FBI to investigate and try to bring these people to justice,
after the fact.
In a Washington Post article dated October 22, 2004, John Mintz
wrote: ``At least 10 detainees released from the Guantanamo Bay prison
after U.S. officials concluded they posed little threat have been
recaptured or killed fighting U.S. or coalition forces in Pakistan and
Afghanistan. . . One of the recaptured prisoners is still at large
after taking leadership of a militant faction in Pakistan and aligning
himself with al Qaeda. . . In telephone calls to Pakistani reporters,
he has bragged that he tricked his U.S. interrogators into believing he
was someone else.''
The reporter further reported about one former detainee named
Mehsud: ``Mehsud said he spent 2 years at Guantanamo Bay after being
captured in 2002 in Afghanistan fighting alongside the Taliban. At the
time he was carrying a false Afghan identity card, and while in custody
he maintained the fiction that he was an innocent Afghan tribesman, he
said, U.S. officials never realized he was a Pakistani with deep ties
to militants in both countries. . .''
Three weeks ago, Attorney General Alberto Gonzales said, ``There
are 12 people that we have released that we know have come back and
fought against America because they have been recaptured or killed on
the battlefield. . .'' I would like to hear your view of this debate.
Should these men be charged or released?
General Craddock. The fact that released detainees have taken up
arms again and have tried to kill U.S. or coalition forces reflects the
nature of many of the enemy combatant detainees we hold at JTF Gitmo.
They are a fierce and ruthless enemy. Having said that, DOD has a
system in place where the Office for the Administrative Review of the
Detention of Enemy Combatants (OARDEC) conducts Administrative Review
Boards (ARB) to determine whether enemy combatants should be released,
transferred, or remain in detention. The ARB assesses if enemy
combatants continue to pose threats to U.S. or allied forces or
interests. Several DOD organizations and other Federal agencies, as
well as the nation of the enemy combatant, provide input to the ARB.
The ARB holds a hearing and makes a recommendation to the Designated
Civilian Official (DCO), who makes the final decision. As I am not
involved in the ARB process, and do not have access to all of the
information the ARB and DCO consider, I cannot comment on any specific
cases. But the fact remains as is stated by the Attorney General--we
have erred in 12 assessments to date--and that is far too many.
21. Senator Inhofe. General Craddock, do you believe these men
would return to theater to cause the U.S. and coalition forces
additional trouble?
General Craddock. The ARB and DCO fully consider the threat enemy
combatants may pose. However, many detainees at JTF Gitmo have been
taught to be deceptive and a detainee may occasionally succeed in
persuading an ARB or the DCO that the detainee's release is warranted.
A released detainee could return to theater and cause U.S. and
coalition forces trouble (as some have done).
______
Questions Submitted by Senator Edward M. Kennedy
SYSTEMIC PROBLEM
22. Senator Kennedy. General Craddock, since allegations of abuse
became public over a year ago, we have heard the Pentagon use the term
``a few bad apples'' and only hold accountability at lower levels of
the chain of command. The similarities that you, Lieutenant General
Schmidt, and Brigadier General Furlow acknowledged finding between
treatments at Abu Ghraib and Gitmo (such as the use of women's
lingerie, leashes, and dogs) indicate that these few, lower ranking
interrogators and military police are taking the same actions,
stationed half way around the world from one another.
If lower ranking interrogators and military servicemembers deployed
to different corners of the earth are taking similar actions, is it
possible that the true culpability for these ``bad acts'' lies further
up the chain of command?
General Craddock. There are important differences between JTF Gitmo
and Abu Gharib. Because the detainees at JTF Gitmo are unlawful enemy
combatants who are not entitled to protection under the Geneva
Conventions as enemy prisoners of war, different legal standards apply.
OSD approved certain interrogation techniques that applied only to
unlawful enemy combatants detained at JTF Gitmo. These techniques were
used against al-Qahtani, a high value detainee, who is believed to have
been al Qaeda's intended 20th highjacker for the September 11 terrorist
attacks on our Nation. The techniques used against al-Qahtani had been
approved by the Secretary of Defense and the specific applications of
these techniques were carefully planned and executed under closely
controlled conditions. The techniques were designed to counter al-
Qahtani's long resistance to more conventional interrogation
techniques. The intent in using these techniques was to use legally
permissible methods to gain intelligence from a key al Qaeda member,
intelligence that could save lives.
In contrast, the conflict in Iraq is governed by the Geneva
Conventions. OSD never approved the use of JTF Gitmo authorized
interrogation techniques in the Iraq theater. At JTF Gitmo, the
techniques and their applications were in accordance with law and
policy. At Abu Ghraib, guards--not interrogators--engaged in misconduct
outside of approved interrogation plans and without legal authority.
While there may have been some soldiers who served at JTF Gitmo and
later informally told persons at Abu Ghraib about JTF Gitmo
interrogation techniques/applications, I do not believe that there was
any policy migration intended or authorized at any level.
DEBATES BETWEEN THE FBI AND THE DEPARTMENT OF DEFENSE
23. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, in a letter to General Donald J. Ryder, the Deputy
Assistant Director of the FBI's Counterterrorism Division, T.J.
Harrington, stated that a representative of the FBI's General Counsel
Office spoke to two senior members of the Department of Defense Office
of the General Counsel: the Principal Deputy General Counsel, and the
Deputy General Counsel for Intelligence.
During the course of your investigation, did you find that other
senior Pentagon officials knew of the dispute between the FBI and DOD
at or around the time of that meeting and if so, who?
General Schmidt and General Furlow. The AR 15-6 team was directed
to investigate FBI allegations of detainee abuse during interrogation
operations at JTF Gitmo. This question is the beyond the scope of the
AR 15-6 investigation.
24. Senator Kennnedy. Lieutenant General Schmidt and Brigadier
General Furlow, your report was specifically tasked with addressing the
allegations contained in the FBI e-mails. Along with those allegations,
you testified that there was active disagreement between the FBI and
the DOD about proper policies and procedures. General Craddock and
Lieutenant General Schmidt testified that the substance of the
disagreement was based on the difference between FBI and DOD missions.
The December 5, 2003, FBI e-mail expressed concern that, given the
nature of the tactics used by DOD interrogators in FBI uniforms, the
FBI would be publicly admonished for DOD actions. The author was
clearly concerned about the use of ``torture techniques,'' as he or she
called them, for reasons other than admissibility of evidence in court.
How did the DOD respond to FBI concerns that did not have to do
with the admissibility of evidence, namely the torture allegations, and
the accusation that FBI would have to ``hold the bag'' for DOD actions
they did not condone?
General Schmidt and General Furlow. First, the AR 15-6
investigation did not find any evidence of the use of ``torture
techniques'' being implemented at JTF Gitmo, nor did the investigation
find any evidence of torture occurring at JTF Gitmo. Second, the AR 15-
6 did find fundamental disagreements between DOD and FBI interrogators
concerning permissible interrogation techniques. This disagreement
highlights the difference between the law enforcement mission of
criminal prosecution and the need for actionable intelligence in the
war on terror. The AR 15-6 concluded that the e-mail allegations arose
because of these differences. While the DOD requires detainees to
always be treated humanely, and to the extent appropriate and
consistent with military necessity, in a manner consistent with the
Geneva Conventions, the DOD's primary focus in interrogations is to
obtain actionable intelligence.
IMPERSONATING FBI OFFICERS
25. Senator Kennedy. General Craddock, why were DOD interrogators
impersonating members of the Department of State and FBI? Who
authorized that practice?
General Craddock. The investigation found that the JTF Gitmo Chief
of the Special Interrogation Team directed two interrogators to pose as
State Department representatives during one interrogation and another
interrogator to pose as an FBI agent on a different occasion. While
using deception regarding one's identity is an authorized interrogation
technique under FM 34-52, Intelligence Interrogation, an FBI supervisor
at JTF Gitmo did not appreciate this practice as detainees were
complaining during FBI interviews that FBI agents had already asked
many of the same questions. Therefore, the FBI supervisor brought this
to the attention of the appropriate JTF Gitmo officials and the
practice was immediately stopped.
REPRIMANDING MAJOR GENERAL MILLER
26. Senator Kennedy. General Craddock, the decision to reject the
recommendation of the Schmidt-Furlow Report that Major General Miller
be held accountable for failing to supervise the interrogation of ISN
063 must have been a difficult one. While making your decision, did you
discuss it with any other member of the military, or any other DOD
official?
General Craddock. The decision was mine. I did discuss the report
and my options with regard to approving or disapproving the report's
recommendations with my Staff Judge Advocate and my Deputy Staff Judge
Advocate. I did not discuss this specific decision--nor any other to my
recollection--with anyone above me in my chain of command either in the
Chairman, Joint Chief of Staff's office or with the Secretary of
Defense or Deputy Secretary of Defense. I did discuss the public
``roll-out'' of this report--the process of briefings to Congress,
press, etc.--during the time I was finalizing my decisions--with Pete
Geren of OSD and Major General Mike Maples, Vice Director, Joint Staff.
I do not recall any discussion with them with regard to my decisions. I
recused myself from Lt. Gen. Schmidt's ``pre-brief'' on the
investigation to the Secretary of Defense.
27. Senator Kennedy. General Craddock, you stated that the reason
you did not find Major General Miller accountable is that the actions
taken under his watch were all legal. Is that a standard that is
universally applied when the military considers accountability?
General Craddock. No; military leaders often hold their
subordinates responsible or accountable for matters that may be legal
but still warrant some measure of counseling or other appropriate
action. A leader's military judgment and experience plays a significant
role in deciding when to take adverse action. I relied heavily upon my
own personal experience and judgment in deciding not to recommend
admonishing Major General Miller. While the fact that there was no
finding that al-Qahtani's interrogation violated any U.S. law or policy
was important, this was not the sole reason I chose not to recommend
admonishing Major General Miller. I also believed that the degree of
supervision provided by Major General Miller did not warrant
admonishment under the circumstances. As I have stated, Major General
Miller by his own admission, knew of several of the applications being
used, applications which were used continuously over time and
considered harsh and aggressive. Likewise, by his admission, he was not
aware of other applications that were episodic in nature, not used
during every interrogation period or every day, but labeled by some as
degrading and abusive (and found by the report's investigators not to
have violated law or policy).
Additionally, Major General Miller had just taken over at Gitmo and
had been given several major duties to accomplish--a fact which I also
considered. Evaluating Major General Miller's level of supervision as a
commander was, in this context, more of a leadership than a legal
question.
28. Senator Kennedy. General Craddock, were you assuming that as
long as a military leader's subordinates are not acting in
contravention to a written policy, that leader should not be held
accountable?
General Craddock. In this case, Major General Miller did not act in
contravention of law, regulation, or policy. While others viewing this
matter externally may not like Major General Miller's degree of
supervision over the interrogation of al-Qahtani, I found no violation
of law, regulation, or policy to hold Major General Miller accountable
for.
DRAWING THE LINE
29. Senator Kennedy. General Craddock, during the hearing there was
some confusion over what actions would amount to contravention of U.S.
policy. Although the Schmidt-Furlow Report concludes that the
cumulative effect of the treatments of ISN 063 amounted to degrading
and abusive treatment, you stated that you were unsure the treatment
was degrading and abusive. Is that your position that, if each
individual treatment or technique is allowable according to U.S.
policy, then the cumulative outcome is necessarily not degrading and
abusive?
General Craddock. FM 34-52, Intelligence Interrogations, provides
broad guidance on a number of techniques such as ``ego down'' or
``futility.'' FM 34-52 does not specify each and every application that
is authorized under a particular technique. In fact, FM 34-52 states:
``To every approach technique, there are literally hundreds of possible
variations, each of which can be developed for a specific situation or
source. The variations are limited only by the interrogator's
personality, experience, ingenuity, and imagination.''
The investigation determined that the creative, aggressive, and
persistent interrogation of al-Qahtani ``resulted in the cumulative
effect being degrading and abusive treatment.'' However, the
investigation could not tell me at what point the cumulative effect
became degrading or abusive, or point to any violation of U.S. law or
policy from the purported ``degrading and abusive treatment.'' Because
that point was not identified, I approved the report's recommendation
that a study be conducted of the DOD authorized interrogation
techniques to establish a framework for evaluating their cumulative
impact in relation to the obligation to treat detainees humanely. I
forwarded this recommendation, along with others concerning policy
level issues, to the Department of Defense for further consideration.
30. Senator Kennedy. General Craddock, at what point would such
treatment accumulate to being degrading and abusive?
General Craddock. I do not know. While I cannot speculate on
hypothetical questions going beyond the scope of the investigation, I
did accept the investigation's recommendation to seek a policy level
review of interrogation techniques with a view towards evaluating the
cumulative impact of interrogation techniques. I forwarded this
recommendation and the report to the Department of Defense for further
consideration.
31. Senator Kennedy. General Craddock, you stated that, in reading
the report, you could not tell ``where to draw the line.'' Where would
you draw the line?
General Craddock. I will continue to follow the guidance in
Secretary Rumsfeld's 16 April 2003 memorandum on interrogation
techniques which provides: ``While techniques are considered
individually within this analysis, it must be understood that in
practice, techniques are usually used in combination; the cumulative
effect of all techniques to be employed must be considered before any
decisions are made regarding approval for particular situations.''
DEFINITION OF INHUMANE
32. Senator Kennedy. General Schmidt, you say that none of the
treatment ``crossed the line'' to be inhumane. Yet the report says we
need a definition of humane treatment. You were able to determine that
the treatment of ISN 063 did cross the line to being degrading and
abusive. What definitions of degrading and abusive were you using?
General Schmidt. I believe each individual has a personal
definition of ``degrading'' and ``abusive,'' shaped by their
environment and the context of the specific situation. For this
investigation, I made a judgment based on my perception of how an
average person would respond when confronted with the details of an
applied technique. What I found in this investigation to be ``abusive
and degrading'' was the cumulative effect of all the applications of
authorized techniques; no limits were set on boundaries or extremes on
the interrogations of two high value detainees.
I did not consider the techniques inhumane because the baseline for
treatment as outlined by the President's instruction regarding
treatment of these detainees was not violated. Within the closely
supervised, controlled environment, detainees were free from pain or
injury, medical treatment was immediately available, and they were
provided safe, secure facilities, food and water. Using my personal
judgment, the creative, aggressive, and persistent interrogation of the
subject of the first Special Interrogation Plan resulted in my
determination that the cumulative effect being degrading and abusive
treatment.
33. Senator Kennedy. General Schmidt, how does degrading and
abusive treatment differ from inhumane treatment?
General Schmidt. Similar to the guidance given to interrogators
from FM 34-52, I view these issues on a scale, with degrading and
abusive treatment falling below the threshold of inhumane treatment.
The only clear redline regards the definition of torture, and ``humane
treatment,'' or lack thereof, having only general guidelines or
parameters.
This lack of a clear definition is in part the basis of
Recommendation #23 from the report, which states, ``Recommend a policy-
level review and determination of the status and treatment of all
detainees, when not classified as EPWs. This review needs to
particularly focus on the definitions of humane treatment, military
necessity, and proper employment of interrogation techniques. (e.g.
boundaries or extremes).''
34. Senator Kennedy. General Schmidt, how were you able to
determine that none of the treatment was ``inhumane'' without a
definition of ``inhumane''?
General Schmidt. While I cannot precisely tell you when conduct
becomes inhumane, the AR 15-6 concluded that the treatment did not rise
to the level of inhumane. In evaluating humane treatment, I considered
the President's mandate to treat the detainees humanely and the
requirement to ensure detainees received adequate food, drinking water,
clothing, shelter and medical treatment. Interrogations were conducted
under controlled, supervised conditions with medical personnel present
or immediately available at all times. Therefore, I concluded the
treatment was not inhumane.
35. Senator Kennedy. General Schmidt, in your testimony, you
justified your statement that the treatment was not inhumane by citing
the detainees' provision with food, water, shelter, clothing, and
medical care. Was that your working definition of ``humane'' treatment?
General Schmidt. In evaluating humane treatment, I considered the
President's mandate to treat the detainees humanely and the requirement
to ensure detainees received adequate food, drinking water, clothing,
shelter and medical treatment. Interrogations were conducted under
controlled, supervised conditions with medical personnel present or
immediately available at all times.
36. Senator Kennedy. General Schmidt, do you believe there is a
distinction between inhumane treatment and inhuman treatment? How would
you distinguish the two?
General Schmidt. Practically speaking, the difference is slight.
Inhuman and inhumane overlap in meaning to such an extent that it is
impossible to sustain a distinction in their use. In general, inhuman
refers to the characteristic of a person or action, whereas inhumane
considers the same characteristic rather more in relation to the effect
or consequences of the action on the sufferer. Bottom line is that
inhumane, or inhuman, treatment regards a minimum standard that
civilized people would set for treatment of any other persons in
humanity. My opinion.
MILITARY NECESSITY
37. Senator Kennedy. General Craddock, you stated that, according
to the President's policy, interrogations and detention should only
deviate from the principles of the Geneva Conventions for reasons of
``military necessity.'' Who determines ``military necessity?''
General Craddock. President Bush's 7 February 2002 directive
requires that ``detainees be treated humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of Geneva.'' The JTF Gitmo Commander
normally determines military necessity at JTF Gitmo.
38. Senator Kennedy. General Craddock, is it your position that
U.S. approved interrogation techniques in Gitmo are considered with the
principles of Geneva?
General Craddock. Yes. Secretary Rumsfeld's 16 April 2003
memorandum on interrogation techniques states, ``I reiterate that U.S.
Armed Forces shall continue to treat detainees humanely and, to the
extent appropriate and consistent with military necessity, in a manner
consistent with the Geneva Conventions.''
39. Senator Kennedy. General Craddock, can all of the detainees at
Gitmo be treated outside the principles of the Geneva Conventions?
General Craddock. No. Given the President and Secretary of
Defense's guidance, the presumption is that when appropriate and
consistent with military necessity, the detainees at JTF Gitmo will be
treated consistent with the Geneva Conventions.
DISAGREEMENT ABOUT FINDINGS
40. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, from General Craddock's reports, and the media, we have
evidence that high-ranking officers, and perhaps Pentagon leaders,
disagree with your recommendation to hold Major General Miller
accountable. Prior to General Craddock officially rejecting your
recommendation to hold Major General Miller accountable, did you have
any knowledge of other members of the DOD who disagreed with you? If
so, who?
General Schmidt and General Craddock. No. None to our knowledge.
41. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, at any point did any Pentagon or military official ask
you to change your findings or recommendations or pressure you in any
way to make any changes to the report?
General Schmidt and General Furlow. No.
REDACTED E-MAILS
42. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, the FBI e-mails that we have access to are heavily
redacted. It is very difficult to determine from those e-mails exactly
what was included in the conversation, and what other allegations or
important content may be excluded. Did you have access to completely
unredacted versions of those e-mails during the course of your
investigation?
General Schmidt and General Furlow. The AR 15-6 investigation was
presented with a packet of unredacted FBI e-mails that formed the basis
of the initial allegations contained in the USSOUTHCOM appointment of
an AR 15-6 investigation.
DOCUMENTS NOT CONSIDERED IN THE REPORT
43. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, you testified that there was at least one document that
was not read in its entirety until the day before the hearing, a May
2003 e-mail. What were the contents of that e-mail, and why did it take
until the day before the hearing to read it?
General Schmidt and General Furlow. Brigadier General Furlow
reviewed an e-mail with attachments the day prior to the hearing. The
e-mail contained no additional information. We can say with certainty
that the team was aware of the FBI agent's opinions regarding the
Special Interrogation Plan, and that the team had an opportunity to
interview the FBI agent who drafted the e-mail.
The AR 15-6 did review literally thousands of pages of documents
covering e-mails spanning several years of activities at JTF Gitmo. We
were always vigilant to ensure we had complete information to ensure a
thorough investigation. We remain confident that the AR 15-6
successfully investigated interrogations at JTF Gitmo.
44. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, were there any other documents that you requested but
did not receive, were unable to read, or were at all redacted?
General Schmidt and General Furlow. No.
WITNESSES NOT INTERVIEWED
45. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, you testified that there may have been as many as 10
witnesses that you sought to interview but were unable to contact. How
many exactly were there?
General Schmidt and General Furlow. Out of the 100-plus interviews,
the AR 15-6 was not able to conduct full in-person interviews with 11
witnesses because of a variety of limiting factors. This included five
FBI agents and six DOD personnel. However, because the testimony of
many of the witnesses overlapped and because of the existence of
numerous interrogations logs, we felt confident in our ability to
fulfill the factfinding task within the scope of AR 15-6 guidance.
46. Senator Kennedy. Lieutenant General Schmidt and Brigadier
General Furlow, which of the substantiated or unsubstantiated
allegations would each witness have provided information on?
General Schmidt and General Furlow. The allegations that the
witnesses may have provided information on include short-shackling,
loud music/strobe lights, the use of menstrual blood and lap dance,
denial of food and water, and communicating a threat (not an enumerated
allegation, but was discovered).
Concerning the substantiated allegations, we felt we had sufficient
evidence and detail to determine what in fact occurred.
With respect to the unsubstantiated allegations, there were only
two: the allegation of DOD interference with FBI agents, and the denial
of food and water. Concerning the first unsubstantiated allegation, our
interviews led us to believe it was a misunderstanding that the FBI and
the DOD interrogators resolved among themselves. In fact, the FBI agent
who made the allegation, when interviewed, indicated that the true
concern was the impersonation of an FBI agent; this matter was resolved
and the agent was pleased with the rapid and thorough response to the
situation. With regards to the second unsubstantiated allegation that
detainees were denied food and water, after the completion of 4 months
of investigation and interviewing over 100 witnesses, we still only had
a single allegation from the original agent. Despite repeated attempts
over several months, we were unable to complete an in-person interview.
Considering the lack of any other evidence or testimony, at the end of
our investigation, the AR 15-6 was unable to substantiate this
allegation.
Since the hearing, we have conducted an in-person interview with
this FBI Special Agent who alleged the denial of food and water, and
the agent provided no additional corroborating evidence.
______
Questions Submitted by Senator Daniel K. Akaka
INTERROGATION TECHNIQUES
47. Senator Akaka. General Craddock, there have been numerous
investigations into the interrogation techniques used on detainees,
first at Gitmo, then Iraq and Afghanistan. All of these reports found
that any substantiated abuses have been isolated occurrences and while
some have been identified as degrading, abusive, and at best
inappropriate, none have been in violation of any law or official U.S.
policy. The reports have also indicated that any questionable
interrogation practices were not as a result of guidance given by
senior military or civilian officials. Other than Brigadier General
Jane Karpinski, USA, who was in charge of the detention center at Abu
Ghraib, no senior officials have been held accountable for actions by
those under them.
In addition, you stated at the July 13 hearing that you overruled
the recommendation of Lieutenant General Schmidt and Brigadier General
Furlow that called for the reprimand of Major General Geoffrey Miller,
and instead referred the matter to the Army's Inspector General.
My question to you is at what point are senior officials, military
or civilian, responsible for the actions of those under their command
or supervision and when will the DOD hold senior leaders accountable
for detainee abuse, no matter how isolated?
General Craddock. I have held, and will continue to hold, those
under my command responsible and accountable for detainee abuse. In
this particular case, I decided not to recommend admonishing Major
General Miller because there was no finding that U.S. law or policy was
violated and I determined that Major General Miller had exercised an
appropriate level of supervision under the circumstances. More broadly,
at JTF Gitmo there have been over 24,000 interrogations in over 3 years
and there have only been a handful of substantiated detainee abuse
allegations. Given this exceedingly small and isolated number of
substantiated abuse allegations, I believe the leadership at JTF Gitmo
has done a remarkably good job.
48. Senator Akaka. General Craddock, at the Senate Armed Services
Committee hearing, as well as in the Schmidt-Furlow Report, you
reported that none of the questionable interrogation practices were in
violation of the U.S. Army FM or DOD guidance. You also indicated that
the Army FM was written for a more traditional war than we currently
face in the global war on terrorism and that we may need to readdress
our interrogation practices for this new environment.
The FBI, which has had years of experience questioning suspects,
has found that non-coercive interrogation methods yield more reliable
results. They claim that force or coercion may cause someone to talk,
but it won't necessarily get them to talk.
Since the chief focus of the U.S. military detention center at
Gitmo is to gain ``actionable intelligence'' by interrogating the
detainees, would it not make sense to work more closely with agencies
who have had experience, and success, in this area in order to be
successful in getting the results we want?
General Craddock. I approved two recommendations requesting an
interagency review of interrogation training and an interagency policy
review to establish standards for interrogations when multiple agencies
and interrogations are involved. I forwarded these recommendations and
the investigation report to the Department of Defense for their
consideration. Additionally, it should be noted that JTF Gitmo
coordinates with all organizations across the intelligence community to
develop effective tactics, techniques, and procedures in its planning
and execution of interrogation operations. The interagency presence and
contribution at JTF Gitmo has been invaluable to the refinement of
interrogation doctrine.
49. Senator Akaka. General Craddock, when you referred this matter
to the Army Inspector General, did you take the opportunity to provide
your own analysis of the matter and make any recommendations on how
they proceed with Major General Miller's responsibility in this?
General Craddock. Army Regulation 20-1, Inspector General
Activities and Procedures, requires forwarding of ``any and all
allegations of impropriety or misconduct'' against general officers to
the Department of the Army Inspector General. I forwarded the
investigation report with the explanation that I disapproved the
recommendation that Major General Miller be held accountable for
failing to supervise the interrogation of al-Qahtani and be admonished
for that failure. I also explained that my reason for disapproving this
recommendation was that the interrogation of al-Qahtani did not result
in any violation of any U.S. law or policy and, that in my view, the
degree of supervision provided by Major General Miller did not warrant
admonishment under the circumstances.
[Whereupon, at 1:00 p.m., the committee adjourned.]
MILITARY JUSTICE AND DETENTION POLICY IN THE GLOBAL WAR ON TERRORISM
----------
THURSDAY, JULY 14, 2005
U.S. Senate,
Subcommittee on Personnel,
Committee on Armed Services,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:37 a.m. in
room SR-325, Russell Senate Office Building, Senator Lindsey O.
Graham (chairman of the subcommittee) presiding.
Committee members present: Senators Warner, McCain,
Roberts, Graham, Levin, Kennedy, and E. Benjamin Nelson.
Other Senators present: Senator Wyden.
Committee staff members present: Judith A. Ansley, staff
director; and Leah C. Brewer, nominations and hearings clerk.
Majority staff members present: Sandra E. Luff,
professional staff member; David M. Morriss, counsel; Lynn F.
Rusten, professional staff member; Scott W. Stucky, general
counsel; Diana G. Tabler, professional staff member; and
Richard F. Walsh, counsel.
Minority staff members present: Richard D. DeBobes,
Democratic staff director; Gabriella Eisen, research assistant;
Gerald J. Leeling, minority counsel; Peter K. Levine, minority
counsel; and William G.P. Monahan, minority counsel.
Staff assistants present: Benjamin L. Rubin, Nicholas W.
West, and Pendred K. Wilson.
Committee members' assistants present: Christopher J. Paul
and Marshall A. Salter, assistants to Senator McCain; John A.
Bonsell, assistant to Senator Inhofe; Chris Arnold, assistant
to Senator Roberts; Mackenzie M. Eaglen, assistant to Senator
Collins; Clyde A. Taylor IV, assistant to Senator Chambliss;
Meredith Moseley, assistant to Senator Graham; Mieke Y. Eoyang,
assistant to Senator Kennedy; Elizabeth King, assistant to
Senator Reed; William K. Sutey, assistant to Senator Bill
Nelson; and Eric Pierce, assistant to Senator Ben Nelson.
OPENING STATEMENT OF SENATOR LINDSEY O. GRAHAM, CHAIRMAN
Senator Graham. The hearing will come to order. Thank you
all for coming. If you need a lawyer, this is a good place to
come today. Thank you very much. I appreciate all of your
taking time out of a busy schedule and I appreciate all the
committee members for attending.
We have five stacked votes at 10 o'clock, so we'll deal
with it the best we can, but I'll try to keep the hearings
going, so we'll just trade off and on during the hearing--if
Senator Nelson comes--and keep it going so we won't have to
keep you waiting for an hour. That's the problem we have to
face.
To begin with, I'd like to thank Senator Warner for
scheduling today's and yesterday's hearings. Some people may
have a different view of if we should be doing this or not, but
that's a healthy discussion to have in a democracy. I believe
it's very important that Congress has this hearing, and that
people like yourselves on the panel come and talk with us about
a large issue.
This war is complex, it's complicated and it will require
adjustments. The enemy adjusts and now I think it's time for us
to adjust.
Guantanamo Bay (Gitmo), in my opinion, is a valuable tool
on the war on terrorism. It's the right place in terms of
location, and the mission that it performs is essential in
keeping us safe and free. The purpose of this hearing is to see
what we can do, working with the Department of Defense (DOD),
to make sure that Guantanamo Bay is working on all cylinders
legally and is advancing the cause of this war and is making us
more secure.
In my opinion, Gitmo serves three purposes. First, it is a
place to take someone who has joined a terrorist organization
or shown sympathy to a terrorist organization off the
battlefield and out of the fight. That makes us all safer.
Since I don't want to become the South Carolina of Guantanamo
Bays, I don't think so. If you'll raise your hand, we'll look
at your State.
Second, it is a place to gather intelligence, to find out
how the enemy is operating, what they have done in the past,
what they are up to now, and what they may do in the future. To
those who have been responsible for the detainee population at
Gitmo, there is some criticism coming your way, but there needs
to be some applause coming your way as well. You have done a
very good job, generally speaking, in extracting intelligence
that has made it safer and given us a chance to get ahead of
the enemy.
Finally, the third role is prosecution. One of the things I
would like every terrorist wannabe to understand is if you take
up arms against us or coalition members, you do so at your own
peril, because a couple of things await you, death or injury on
the battlefield or detention and accountability.
Guantanamo Bay is an ideal location, in my opinion, to
bring people to justice who take up arms and murder innocent
people and who engage in acts of terrorism. Every terrorist
needs to understand that you're going to potentially lose your
life, get injured or be prosecuted if you join these
organizations. That's what Guantanamo Bay can provide for this
country.
There are three parts to this war. Intelligence is
prevention. Detention is taking the enemy off the battlefield,
and that's a part of the military component. The third is
hearts and minds. The reason I think it's important that we
have this hearing is that there have been some mistakes made.
In a democracy, it's okay to be set free. It's okay to ask hard
questions. It's okay to bring people before Congress and try to
find out what happened, because gathering intelligence is
important.
But if a misstep is made, it can affect the shape of the
battlefield in the future. An inaccurate news report from
Newsweek resulted in people getting killed. Image matters. Part
of this hearing process is to try to improve the image of
Guantanamo Bay as well as making it substantively more
effective in the war on terrorism.
If we ignore that third part of hearts and minds, we do so
at our peril. Every general or combatant commander that's come
before this committee has one thing they know for certain, and
that is a military solution is not going to be the ultimate
solution to this war. The military component helps us get a
political solution for moderate forces and vanquish extremists
in the Middle East. That's why it's important to have this
hearing.
The truth is, due to no one's fault, Guantanamo Bay is in a
legal mess. I'm here to blame no one. I'm here to address the
problem. Some of you I used to work for, so I respect your
service to our country. I respect your legal abilities
tremendously, but the truth is we have been in operation now
for almost 3 years and no one has been prosecuted. I'm not
blaming anybody but we need to fix that.
Our Federal courts have had a chance to look at the legal
structure in Guantanamo Bay and we are stuck. My goal is to
work with the DOD and move forward. Enemy combatant status is
in litigation. The tribunal system that would hold people
accountable is stuck legally. We have had problems with
interrogation techniques not being standard.
The goal of this hearing, and my involvement, is to come up
with a comprehensive solution that allows Guantanamo Bay to be
effectively used in the war on terrorism, and a place where we
can try people sooner rather than later, so that we can
continue to get good intelligence using standardized techniques
that will not create black eyes for this country in terms of
the hearts and minds of the world, and to have a detention
policy that will define an enemy combatant in the way that the
Federal courts will sign off on.
If we can accomplish that goal, then we will be safer. I
have one final thought. Congress has been absent without leave
(AWOL). We have criticized and we have applauded, but we have
been absent when it comes to designing policies, and dealing
with the capture of people on land and sea who are involved in
the war. That is a constitutional duty of Congress.
So my offer to each person here and to the DOD in general
is, working together, let's see if we can find some statutory
solutions to problems that face us at Guantanamo Bay, so that
the place can be fully utilized in the war on terrorism. I
think it is now time for Congress to look at what we can do.
With that said, I will recognize Senator Wyden, who would
like to speak before the committee and has an engagement.
STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE STATE OF
OREGON
Senator Wyden. Thank you very much, Mr. Chairman. I want to
thank you and Senator Nelson for the invitation to come and in
recognition of the good work that you and a number of Senators
on this committee have done to prevent gratuitous
filibustering.
I just want to make a couple of points this morning and I
appreciate the invitation. I think you are aware, Mr. Chairman,
and Senator Nelson, that I went to Guantanamo Bay just a couple
of weeks ago and I want to give you a couple of observations
that are very much in sync with your opening remarks.
It seems to me the administration is on point when they say
this is a war and the people who are in Guantanamo are not your
garden-variety criminal defendants. These are dangerous people.
At the same time, it seems to me that the administration has
given short shrift to the need for a set of rules, a set of
procedures, or a kind of compass to guide what happens at
Guantanamo Bay and other facilities. I want to touch on a
couple of reasons why.
Senator Nelson and I, for example, were in the room where
the combatant tribunals take place and we were, in fact,
briefed on the way the administrative review process works. I
came away with the clear convictions they are good people, who
are dedicated to fairness.
But asking them to conduct these reviews without any
clearly defined set of rules that have a basis in law puts them
essentially in an untenable situation.
Let me give you an example of the kind of issues that I
think we ought to be looking at. For example, if you look at
Article 21 of the Geneva Conventions with respect to holding
foreign nationals who are dangerous, what is striking about it
is that Article 21 coming from the Geneva Conventions is
actually stronger in terms of its effect on detainees than is
current Supreme Court law.
So we have a situation in which Geneva, which is often held
out as this kind of forum for lofty liberalism, really has the
tougher set of principles in a number of areas than even
current Supreme Court law. That's the kind of issue we ought to
be looking at.
A second area that I came away concerned with is what is
done with respect to detainees who have what is known as
intelligence. Obviously if we are holding people who have
knowledge of active terror cells, that's in our national
security interest.
But there is a real question about what to do with
individuals who are not dangerous. What I think you indicated
you wanted in your opening statement is that you want to
protect the national security interests of our country. That is
different, it seems to me, than creating some kind of human
reference library down there without any set of rules with
respect to how matters where we have interest in gathering
intelligence is conducted.
The last point that I would make, Mr. Chairman, is that if
you just close Gitmo, it seems to me that what you will have is
a significant amount of reaction. You will in effect be
outsourcing the interrogation of these individuals to countries
with a much less significant commitment to human rights than we
have.
I don't think any one of us want to see that kind of
scenario. But at the same time, as we make sure that these
dangerous individuals, if released, can't get out and injure
our citizens, let us not have the policy that would in effect
make the treatment of detainees the Achilles heel of our U.S.
antiterrorism policy.
You have a lot of good people down there, and I met a
number of them from Oregon. They have been given a very tough
assignment. You touched on Congress being AWOL. I'd go even
further than that. It seems to me Congress has been derelict,
derelict in not meeting its responsibilities so that the good
people that are down there--I came away with a sense of
commitment and fairness--have a compass by which to guard them
in that room where Senator Nelson and I were at the
administrative audit review board procedure.
I thank you and Senator Nelson for the chance to come and
to work with you, Senator Graham, on a bipartisan basis.
[The prepared statement of Senator Wyden follows:]
Prepared Statement by Senator Ron Wyden
Thank you for inviting me to appear before you today. I commend you
for holding this hearing. Current practices on detention and rendition
deserve to be examined very closely by Congress, and I am very glad
this matter is finally getting some of the attention it deserves.
I would like to start off by saying that I agree with the Bush
administration that this is a war, and that the individuals at
Guantanamo are not garden-variety criminal defendants. But the
administration is not right to say that just because we are at war,
there should be no rules. None of us wants to put the American people
at risk by releasing dangerous individuals who want to get out and kill
people. At the same time, none of us wants the way that we treat
detainees to become the Achilles' heel of U.S. antiterrorism policy.
I saw the policy on detention in practice when I traveled to Cuba
last month with Senator Nelson and visited Camp Delta in Guantanamo
Bay. I believe there needs to be vigorous, concerted oversight of
practices at Guantanamo and other, similar facilities. Now having
visited there, in my view the most glaring problem that Congress needs
to address is the legal status of these detainees.
Senator Nelson and I were in the room where the Combatant Status
Review Tribunals take place, and we were briefed on the Administrative
Review Board process. These procedures were established to determine
whether individuals pose a threat to the United States. The U.S.
soldiers who are involved in these proceedings are good people. They
are trying hard to do the right thing. But frankly, I don't know how
they sort it out without a compass. By asking them to conduct reviews
without establishing clear rules they can follow, the Federal
Government has put them in a very difficult situation.
These soldiers need guidance and standards provided to them so that
they can do their jobs. Even the reasons that detainees are being held
need to be better defined. Many, for instance, have what is known as
``intelligence value.'' If the U.S. is holding people because there is
reason to believe that they have knowledge of active terrorist cells or
operational planning, then that's in our national security interests.
But if the evidence indicates that they are not dangerous, continuing
to hold them requires a different set of standards. I'm interested in
protecting the national security interests of this country, not in
creating a human reference library made up of individuals who no longer
pose a threat to the United States.
Of course, some prisoners are not being held because of their
intelligence value, but because they are dangerous. The absence of
clear rules here raises some questions that Congress ought to explore.
For example, Article 21 of the Geneva Conventions would seem to provide
the government with stronger grounds for holding detainees than the
rules currently being employed by the administration. That article says
that if foreign nationals are members of a group that is in armed
conflict with the United States, the United States has the right to
capture them and hold them prisoner until they are no longer dangerous.
I realize that al Qaeda is not a conventional army, but perhaps those
Conventions, which are sometimes dismissed as soft and lofty
liberalism, can point us to a proper approach in law, that would have
the added advantage of having a strong legal precedent.
Based on what Senator Nelson and I observed and learned at
Guantanamo, I remain very concerned about past instances of
unacceptable practices at Guantanamo and elsewhere. However, I believe
that improvements have been made to procedures and conditions--at least
at Guantanamo. I strongly prefer even this situation to the inevitable
alternative: further outsourcing of prisoner interrogation to countries
with a questionable commitment to human rights and the rule of law.
Our servicemen and servicewomen at Guantanamo have been given a
very tough assignment. They are working incredibly hard. While in Cuba,
I had the chance to sit down with soldiers from Oregon and talk to them
about their experiences serving at Guantanamo. These men and women are
doing a great job.
But Congress is making those soldiers' job much harder than it
needs to be. Colleagues, we could make their job a lot easier by
enabling them to operate in an environment where the rules are clear.
Some of the soldiers and sailors at Guantanamo Bay have been unfairly
maligned by being associated with the errors of their government.
Allowing Camp Delta to become a modern-day Bastille where prisoners may
be held under humane conditions, but are still kept indefinitely, with
no formal charges and little legal recourse, is not likely to change
Guantanamo's image around the world as a recruiting poster for al
Qaeda. A better solution is for Congress to write rules for detainees
that are solidly grounded in United States law, and to hold ourselves
to a higher standard of conduct than those who seek to erode our
freedoms.
I look forward to working with all of you on this issue.
Senator Graham. I believe it's appropriate to recognize the
chairman and ranking member. Mr. Chairman, would you like to
say anything?
STATEMENT OF SENATOR JOHN WARNER
Senator Warner. Very briefly, Mr. Chairman, I thank you and
our distinguished colleague, Senator Nelson and also Senator
McCain. We have all been discussing these issues and your
valuable contribution. I'll be very brief.
I'd like to turn to your phrase that Guantanamo Bay is a
legal mess. Let us be careful to say that Guantanamo today is
being operated as best they can do under a framework of laws
which are either just not clear or need to be refined.
So I agree with you. But let us send a message.
Incidentally, you are going to join me and others tomorrow and
have our view at Guantanamo Bay.
As we move forward in Congress, we must be very careful not
to abrogate or in any way put in conflict the specific powers
given to the President of the United States under our
Constitution. We must move towards a framework of laws which
reflect the longstanding principles of this great Nation, a
Nation which continues to be the symbol of freedom and hope
throughout the world.
As we proceed, we have to preserve the ability of our
military and civilian counterparts in the intelligence field
that continue to get the needed information to protect our
forces abroad and indeed to protect our citizens here at home.
It's a daunting task. We are embarking on it, and I am very
pleased to see thus far a good, strong, bipartisan interest in
achieving these goals.
Senator Graham. Senator Levin.
STATEMENT OF SENATOR CARL LEVIN
Senator Levin. Thank you, Mr. Chairman, thank you for
convening this hearing. I thank Senator Warner also for
supporting and authorizing this hearing.
Mr. Chairman, I very much support your opening statement. I
think it was very accurate in terms of your assessment of the
issue. On December 12, 2001, the full committee held a hearing
that the Department plans to implement the President's plan
regarding the trial by military commission of certain detainees
in U.S. custody.
Since that time, in December 2001, the Secretary of Defense
issued a series of military orders and instructions detailing
the procedures for military commissions, and military personnel
have been appointed or assigned to commissions, prosecutor's
offices, and defense counsel offices.
The President has determined that 12 detainees were subject
to his order to be tried by military commission, the appointing
authority has approved specific charges for 4 of those 12
detainees, and referred those charges to military commissioners
for trial.
The Federal courts, however, intervened raising legal
questions about the commission and detention process as is
currently structured.
Now, during this time, the Office of Legal Counsel (OLC),
in the Department of Justice (DOJ), issued a number of
memoranda setting up the legal framework for interrogations at
Gitmo and elsewhere, and a new memo was declassified August 1,
2002 which was the first by Gitmo.
The OLC concluded if physical pain amounts to torture, it
must be equivalent in intensity to the pain accompanying
serious physical injury such as organ failure, impairment of
body function or even death.
According to the Church report on interrogation techniques,
those OLC findings were included virtually word for word in a
March 14, 2003, OLC memo prepared by Deputy Assistant General
John Yoo to William Haynes.
Despite repeated written requests, the March 14, 2003, OLC
memo has not been provided to this committee. A second highly
relevant document has also been denied us.
Assistant Attorney General Bybee prepared another opinion
known as the second Bybee memo on the legality of significant
detention techniques around the time of August 1, 2002, OLC
memo.
Mr. Chairman, I'm speaking here to both our chairmen. These
two memos are apparently still in effect. These documents are
absolutely essential to our understanding of the legal
framework for our detention and interrogation policy.
I had recommended the chairman of the committee issue a
subpoena, if necessary, in order to obtain them. Every Senator
should join in assisting on these highly relevant and essential
documents, and I know that Chairman Warner, and his staff have
sought these documents.
Again, I believe that we must issue a subpoena to get these
documents. They go right to the very issue, that our committee
and subcommittee and Congress are all in the process of looking
into and must look at.
These techniques which have been approved apparently
include the use of stress positions, isolation, deprivation of
light, 20-hour interrogations, removal of clothing, use of
phobias such as fear of dogs to induce stress.
The Secretary established a Defense working group to make
recommendations on interrogation techniques. Several of our
witnesses today apparently participated in that working group.
The Church report states that despite the number of objections
and concerns the working group was directed to the March 14,
2003, OLC legal memo on what constitutes cruel, inhuman
treatment, they were directed to accept that as a controlling
authority on all legal issues.
The March 14, 2003, memo is one of two documents that have
been withheld. Mr. Chairman, again, I commend you in your
opening statement for having these hearings for the reasons
that you called them and I would hope that in addition to
hearing from our witnesses today, we will continue to press for
those two documents which Congress, it seems to me, is not only
entitled to but really obligated to review.
Senator Graham. Senator Nelson.
Senator Ben Nelson. Thank you, Mr. Chairman, I want to
express my appreciation for this hearing today and I want to
express thanks to the witnesses. I think the first panel might
help us on how we might address the legal concerns of
establishing standards.
Our goal of establishing standards is to reaffirm that this
is a nation of laws, we abide by law and we want to send a
message to the world that we will not succumb to the tactics of
those against whom this battle is being waged, and that we will
apply laws in an appropriate fashion in the detention of
prisoners of whatever status.
I also want to say that as we seek to do this, we need to
get the kind of input that we are going to get today with
people who have the expertise, experience, and knowledge of the
law, and how it's been applied in other situations.
I ask that my more complete opening statement be made a
part of the record.
Senator Graham. Without objection.
[The prepared statement of Senator Nelson follows:]
Prepared Statement by Senator E. Benjamin Nelson
Thank you Mr. Chairman for holding this very important hearing. I
join you in extending a warm welcome to our witnesses.
I recently visited the detainee facility at the U.S. Naval Station
at Guantanamo Bay, Cuba. I was very impressed with what I observed
while there. At least at the present time, that detention facility is
being run in a professional, humane manner.
While there, I was able to meet and talk with three sailors and a
marine from Nebraska. Each of them assured me that they have not
personally observed any instances of abuse during their tours of duty
there. I know that I can trust these young Nebraskans to tell me like
it is.
I want to thank Anthony Mroczek of Grand Island, Nebraska; Jerry
Garhart of York, Nebraska; Theesen Brant from Norfolk, Nebraska; and
Chad Luke from Doniphan, Nebraska, for their hospitality and candid
assessment of conditions at Guantanamo. Each of these servicemembers is
serving honorably in difficult conditions. I thank them or their
dedication, commitment to duty, and service to our Nation.
From the outset, I want to make clear that I support the use of
military commissions to try detainees for violations of the law of war.
Military commissions have been used during times of war throughout our
history and have served us well. I am, however, concerned about some of
the procedures that have been approved for the military commissions as
currently configured. The Federal Courts are now addressing these
concerns, and I am confident that we can learn from their decisions.
I do have concerns about how we classify detainees. I am also
concerned about the lack of clear standards for how detainees, whatever
their classification, are treated. Finally, I am concerned about the
United States losing the moral high ground because we have not adhered
to our traditional standards of fundamental fairness and how we treat
people, even bad people.
I agree that the detainees in the global war on terrorism do not
meet the criteria for a legally required application of the Geneva
Conventions. I also agree that enemy combatants can be detained to
prevent them from returning to the battlefield. However, I don't think
that means that we should have no standards whatsoever for how we treat
them. Perhaps it is time for Congress to establish a new category for
detainees that takes into account the complexities of the global war on
terrorism and to prescribe appropriate standards for how we treat this
new category of detainee.
I was disappointed to hear senior military officers testify at
yesterday's Armed Services Committee hearing on the investigation into
allegations of detainee abuse at Guantanamo that it is consistent with
United States policy to treat detainees in a degrading, abusive, or
humiliating manner, so long as they were not subject to torture and
were not treated ``inhumanely.''
It seems to me that it is inhumane to treat someone in a degrading,
abusive, or humiliating manner. However, yesterday's witnesses limited
humane treatment to providing adequate food, water, clothing, and
shelter.
Witnesses at yesterday's hearing described approved interrogation
techniques that would, as a minimum, constitute sexual harassment, or
sexual assault in our society. They described a female interrogator
straddling a male detainee, massaging him, whispering in his ear, and
running her fingers through his hair. A detainee was forced to wear a
bra, and to wear a woman's thong on his head.
If these are the standards of the Department of Defense, it is time
for Congress to step in and establish reasonable standards of conduct
that are consistent with our history as a moral leader. Treating
detainees this way has incited people of Muslim faith and assisted
terrorists in their recruiting efforts. If official policies permit
this kind of behavior, why are we surprised when young soldiers take it
upon themselves to treat detainees in a humiliating and degrading way?
We owe it to our service men and women who are assigned duties
involving the treatment of detainees to give them clear, reasonable
standards and guidelines for appropriate conduct. We have not done
that.
Mr. Chairman, I hope that our witnesses today can give us some help
in developing new rules to address the legal status of detainees. These
rules could define an enemy combatant, articulate standards for
detention and release of enemy combatants, prescribe procedures for
military tribunals, and establish reasonable standards for
interrogation of enemy combatants. Thank you, Mr. Chairman.
Senator Graham. Mr. Dell'Orto, please. I understand you
have an opening.
STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL
COUNSEL, DEPARTMENT OF DEFENSE
Mr. Dell'Orto. My statement is one on behalf of the Judge
Advocate General (JAG). Mr. Chairman, thank you for the
opportunity to contribute. We understand that the committee is
focusing on military aspects of the Department of Defense,
including the classification of enemy combatants, the role of
military commissions, as well as responsibilities of the United
States, in the conduct of detention operations and U.S. laws
under existing international treaty organizations.
Our Nation has faced many challenges since the attacks of
September 11, 2001. The devastation of human lives have been
echoed in cities and countries of our friends and allies,
including Baghdad, Kabul, Istanbul, Bali, Riyadh, Madrid,
Russia, Uzbekistan, and most recently London. The armed
conflict of al Qaeda and its supporters continues.
For as long as it does, we will continue to meet each
challenge steadfastly and consistently with the rule of law.
Throughout this conflict, we have looked at the United States
Constitution, and U.S. treaty obligations.
The President acting as commander in chief has taken action
for the country and to prevent additional attacks. Congress, in
authorizing use of military force on September 18, 2001,
supported that use against those nations, organizations or
persons who planned, authorized, committed, or aided the
terrorist attacks or harbored such organizations or persons.
Congress also understands that the forces responsible for
the September 11 attacks continue to pose an unusual and
extraordinary threat to the national security, and that the
President has the authority under the Constitution to take
action to deter and prevent actions, to deter acts against the
United States.
Consistent with this authority, U.S. and coalition forces
have removed the Taliban from power. In the conflict of these
operations, U.S. Armed Forces consistently won and have seized
many hostile persons and detained a small portion of them as
enemy combatants.
On February 7, 2002 the President determined that the Third
Geneva Convention applies to the Taliban detainees, but not to
the al Qaeda detainees because Afghanistan is a party to the
Geneva Conventions, but al Qaeda, an international terrorist
group, is not.
They also determined that Taliban detainees are not
entitled to prisoner of war (POW) status. Even so, he directed
the Armed Forces to treat such detainees humanely. Those who
are members of al Qaeda, Taliban and supporters are enemy
supporters who may be detained.
Such detention serves military objectives of preventing
initial attacks, and preventing combatants from rejoining the
conflict and gathering intelligence. The military defines enemy
combatants as personnel engaging in hostilities during armed
conflict on behalf of the party to the conflict.
Enemy combatants are lawful targets unless they are
captured or are no longer resisting. In a more conventional
armed conflict between states, and any fighters of a government
are recognizable by their uniforms or fixed insignia, with a
responsible command, carry arms lawfully.
Enemy fighters in the global war on terrorism are not
recognized among those ways. In fact, their strategy and
tactics include hiding and illegally targeting civilians in
violation of the law. As private citizens, these fighters do
not have a right to engage and wage war.
The law for the Geneva Conventions offers specific
privileges to combatants but not to terrorist fighters. The DOD
doctrine defines enemy combatants who can be properly detained
under the customs of the law.
The definition has the flexibility to meet specific
circumstances within a particular conflict. It has been adapted
in the war on terrorism operations to define opposing fighters.
For example, the Deputy Secretary of Defense establishing
tribunals defined an enemy combatant for purposes of that order
as an individual who is part of or supporting Taliban or al
Qaeda forces or associated forces that are engaged in
hostilities against the United States or its coalition
partners.
Consistent with these definitions, the Supreme Court has
recently endorsed a similar definition of enemy combatant in a
case involving the detention of enemy combatants captured from
Afghanistan. The Court's statement, for the purposes of this
case, says an enemy combatant is an individual who is part of
or is supporting forces hostile to the United States or
coalition partners in Afghanistan, or who is engaged in armed
conflict against the United States.
With respect to the classification and definition of enemy
combatants, it's important to maintain flexibility of the
terminology in order for us to operate effectively with
coalition forces and to address the types of conflicts in which
we are engaged and will be engaged.
Generally speaking, the terms combatant, unprivileged
combatant, unlawful combatant, and enemy combatant are well
established in law in the detention and review process. From
the early stages in military operations in Afghanistan, the DOD
has taken steps to capture personnel and continue the need for
their continued detention.
In a conflict in which an army does not use insignia or
uniforms to distinguish itself, the Department has established
new mechanisms to test each detainee as an individual combatant
in connection with the ongoing hostilities, undergoing a
multistep screening process to determine if their detention is
necessary.
If an individual is captured, commanders in the field,
using all available information, make a determination as to
whether an individual is an enemy combatant, that is, whether
the individual is part of or supporting forces hostile to the
United States or our coalition partners, and engaged in armed
conflict against the United States.
Individuals who are not enemy combatants are released.
Between August 2004 and January 2005, Combatant Status Review
Tribunals (CSRTs) have reviewed the status of all individuals
detained at Guantanamo in a fact-based proceeding to determine
whether an individual is still properly classified as an enemy
combatant.
The CSRTs gave each detainee an opportunity to contest
their designation as an enemy combatant. In December 2004, the
Administrative Review Board (ARB) process began to assess
whether enemy combatants continue to pose a threat to the
United States or its allies or whether there are other factors
bearing on the need for detention.
The process permits the detainee to appear in person for an
ARB panel of three military officers to explain why the
detainee is no longer a threat to the United States or allies
and provide support. This process remains ongoing and we'll
review each detainee status annually.
With respect to the role of military commissions, their use
is firmly based in international law, our Constitution, the
Uniform Code of Military Justice (UCMJ), our Nation's history
and international practice.
The United States employed a military commission to try
eight Nazi saboteurs during World War II. At the conclusion of
that conflict, U.S. military commissions heard some 500 cases
against enemy war criminals. Australia, Canada, China, France,
Greece, Norway, and United Kingdom used military commissions to
prosecute 1,166 cases against war criminals.
In Article 21 of the UCMJ, Congress expressly recognizes
military commissions and military tribunals as lawful and
legitimate means of the President to try violations.
Additionally, Article 36 of the UCMJ codifies the
President's authority to prescribe trial, pre-trial and post-
trial procedures for military commissions.
They have not been used since World War II and constitute
an exceptional situation, such as with respect to terrorists
who have violated the law. On November 13, 2001, the President
authorized use of military commissions in treatment and trial
of certain noncitizens in the war against terrorism.
The President took this action in response to the acts of
terrorism, including the attacks of September 11, 2001, on the
Pentagon, World Trade Center, and on civilian aircraft in
Pennsylvania.
After the President authorized use of military commissions,
work began to establish, consistent with the President's order,
the procedures to be used and the rights to be afforded the
accused. This process involved working to achieve ensuring
trial for the accused, protecting classified and sensitive
information and protecting the safety of personnel
participating in the process, including the accused.
Use of military commissions with terrorists who violated
laws of war, as opposed to other forums such as Federal courts
or military courts, provides the flexibility necessary to
ensure that it's equally important yet competing goals are
attended.
In conclusion, the contemporary battlefield has challenged
members of the DOD legal community as intensively as it has
challenged the commanders and soldiers, sailors, airmen, and
marines they advise. The exceptional performance of our judge
advocates at every level of command, and in particular in
combat in Iraq and Afghanistan where members of the uniformed
legal branches have been killed and wounded in action, has been
essential to ensuring the overall excellent record of
compliance with the law achieved by our Armed Forces.
For this, our Nation should be proud. This success has not
occurred in a legal environment without uncertainty. This has
generated reviews and commentaries on how we should realize
national security objectives. The Department of Defense, both
military and civilian, have worked long and hard to ensure our
forces have this, while upholding the rule of law and
preserving American values.
We are confident judge advocates will continue to make
essential contributions to our efforts to reconcile the nature
of facing these threats with the traditional and historic
commitment of our armed forces to conduct disciplined military
actions in compliance with the law of war. Established
principles have served us well to meet the challenges of
military operations in the war on terrorism. We are confident
that they provide the firm foundation for meeting future
challenges. Thank you very much, Mr. Chairman.
[The prepared joint statement of Mr. Dell'Orto, General
Romig, General Rives, Admiral McPherson, and General Sandkuhler
follows:]
Prepared Joint Statement by Daniel J. Dell'Orto; MG Thomas J. Romig,
USA; Maj. Gen. Jack L. Rives, USAF; RADM James E. McPherson, USN; and
Brig. Gen. Kevin M. Sandkuhler, USMC
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to contribute to this important discussion concerning
military justice and detention policy in the global war on terrorism.
We understand the subcommittee is focusing on military justice aspects
of detention policy in the Department of Defense (DOD), including the
definition and classification of enemy combatants; legal aspects of the
detention, review, and interrogation of enemy combatants; the role of
military commissions, as well as responsibilities of the United States
for the conduct of detention operations under U.S. laws, existing
international treaty obligations and the law of war.
Our Nation has faced many challenges since the deadly and savage
attacks of September 11, 2001. The devastating loss of civilian lives
and destruction of property and infrastructure of that day have been
echoed in the cities and countries of our friends and allies, including
Baghdad, Kabul, Istanbul, Bali, Riyadh, Madrid, Russia, Uzbekistan,
and, most recently, London. The armed conflict with al Qaeda and its
supporters continues. For as long as it does, we will continue to meet
each challenge steadfastly and consistent with the rule of law.
Throughout this conflict, we have looked to the U.S. Constitution,
U.S. statutes, U.S. treaty obligations, and the law of war to frame our
actions. The President, acting as Commander in Chief, has taken action
to defend the country and to prevent additional attacks. Congress, in
the Authorization for Use of Military Force, September 18, 2001,
supported the President's use of ``all necessary and appropriate force
against those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist [September 11] attacks .
. . or harbored such organizations or persons.'' \1\ Congress also
emphasized that the forces responsible for the September 11 attacks
``continue to pose an unusual and extraordinary threat to the national
security,'' and that ``the President has authority under the
Constitution to take action to deter and prevent acts of international
terrorism against the United States.'' \2\
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\1\ Publ. L. No. 107-40, Sec. Sec. 1-2, 115 Stat. 224.
\2\ Ibid.
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Consistent with this authority, U.S. and coalition forces have
removed the Taliban from power, eliminated the ``primary source of
support to the terrorists who viciously attacked our Nation on
September 11, 2001'' and ``seriously degraded'' al Qaeda's training
capability.\3\ In the conduct of these operations, U.S. Armed Forces,
consistent with the law and settled practice during armed conflict,
have seized many hostile persons and detained a small proportion of
them as enemy combatants.
---------------------------------------------------------------------------
\3\ Office of the White House Press Secretary, Letter from the
President to the Speaker of the House of Representatives and the
President Pro Tempore of the Senate (Sept. 19, 2003)
---------------------------------------------------------------------------
On February 7, 2002, the President determined that the Third Geneva
Convention applies to the Taliban detainees, but not to the al Qaeda
detainees because Afghanistan is a party to the Geneva Conventions but
al Qaeda--an international terrorist group--is not. He also determined
that under article 4 of that Convention, Taliban detainees are not
entitled to prisoner of war (POW) status. Even so, he directed the
Armed Forces to treat such detainees humanely. Those who are members of
al Qaeda, the Taliban, or their affiliates and supporters are enemy
combatants who may be detained for the duration of hostilities. Such
detention serves the vital military objectives of preventing additional
attacks, preventing captured combatants from rejoining the conflict,
and gathering intelligence to further the overall war effort. The
military's authority to capture and detain enemy combatants is both
well-established and time honored.
ENEMY COMBATANTS
Enemy combatants are personnel engaging in hostilities during an
armed conflict on behalf of a party to the conflict. Enemy combatants
are lawful targets unless they are captured or wounded, sick, or
shipwrecked and no longer resisting.
In a more conventional armed conflict between States, enemy
fighters of a government are recognizable by their uniforms or fixed
insignia, fight under responsible command, carry their arms openly, and
otherwise abide by the law of war.\4\ Enemy fighters in the global war
on terrorism are not recognizable in those ways--in fact, their
strategy and tactics include hiding within civilian populations and
deliberately targeting civilians in violation of the law.\5\ As private
citizens, these enemy fighters do not have a law of war right to
initiate and wage war. The law of war, including the Third Geneva
Convention, offer specific protections and privileges to conventional
combatants, but not to terrorist fighters.
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\4\ Lawful combatants include members of the regular armed forces
of a State party to the conflict; militia, volunteer corps, and
organized resistance movements belonging to a State party to the
conflict, which are under responsible command, wear a fixed distinctive
sign recognizable at a distance, carry their arms openly, and abide by
the laws of war; and, members of regular Armed Forces who profess
allegiance to a government or an authority not recognized by the
detaining power. They are entitled to prisoner of war status upon
capture, and are entitled to ``combatant immunity'' for their lawful
pre-capture warlike acts. They may be prosecuted, however, for
violations of the law of war. If so prosecuted, they still retain their
status as prisoners of war.
\5\ Unlawful combatants, or unprivileged belligerents, may include
spies, saboteurs, or civilians who are participating in hostilities, or
who otherwise engage in unauthorized attacks or other combatant acts.
Unprivileged belligerents are not entitled to prisoner of war status,
and may be prosecuted under the domestic law of the captor.
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DOD doctrine currently defines an enemy combatant to be, ``Any
person in an armed conflict who could be properly detained under the
laws and customs of war.'' \6\ The definition has the flexibility to
meet the specific circumstances of a particular conflict. It has been
adapted in war on terrorism operations to define who is part of an
opposing force. For example, the Deputy Secretary of Defense's Order
Establishing Combatant Status Review Tribunals (CSRTs) defined an
``enemy combatant'' for purposes of that order as ``an individual who
was part of or supporting Taliban or al Qaeda forces, or associated
forces that are engaged in hostilities against the United States or its
coalition partners.'' \7\ Consistent with these definitions, the
Supreme Court has recently endorsed a similar definition of ``enemy
combatant'' in a case involving the detention of an enemy combatant
captured in Afghanistan. The Court stated that ``for purposes of this
case, enemy combatant . . . is an individual who . . . was part of or
supporting forces hostile to the United States or coalition partners in
Afghanistan and who engaged in an armed conflict against the United
States there. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2639 (1994)
(plurality op.) (internal quotation marks omitted).
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\6\ See Joint Publication 1-02, DOD Dictionary of Military and
Associated Terms (as amended through May 9, 2005).
\7\ Memorandum from Paul Wolfowitz, Deputy Secretary of Defense, to
the Secretary of the Navy (July 7, 2004).
---------------------------------------------------------------------------
With respect to the definition and classification of enemy
combatants, it is important to maintain flexibility in the terminology
in order to allow us to operate effectively with coalition forces, and
to address the changing circumstances of the types of conflicts in
which we are engaged, and will be engaged. Generally speaking, the
terms ``Combatant,'' ``Unprivileged Belligerent,'' ``Unlawful
Combatant,'' and ``Enemy Combatant,'' are well-established in the law
of war.
DETENTION REVIEW PROCESS
From the early stages of military operations in Afghanistan, the
Department of Defense has taken steps to examine the status of captured
personnel and determine the need for their continued detention. In a
conflict in which the enemy does not use distinctive insignia or
uniforms to distinguish itself from the civilian population, the
Department has established review mechanisms to test and revalidate the
status of each detainee as an enemy combatant.
Individuals taken into DOD control in connection with the ongoing
hostilities undergo a multi-step screening process to determine if
their detention is necessary. When an individual is captured,
commanders in the field, using all available information, make a
determination as to whether the individual is an enemy combatant, i.e.,
whether the individual is ``part of or supporting forces hostile to the
United States or coalition partners, and engaged in an armed conflict
against the United States.'' \8\ Individuals who are not enemy
combatants are released.
---------------------------------------------------------------------------
\8\ Department of Defense, Fact Sheet: Guantanamo Detainees
---------------------------------------------------------------------------
Between August 2004 and January 2005, the CSRTs reviewed the status
of all individuals detained at Guantanamo, in a factbased proceeding,
to determine whether the individual is still properly classified as an
enemy combatant. The CSRTs gave each detainee the opportunity to
contest the designation as an enemy combatant.
In December 2004, the Administrative Review Board (ARB) process
began to assess whether an enemy combatant continues to pose a threat
to the United States or its allies, or whether there are other factors
bearing on the need for continued detention. The process permits the
detainee to appear in person before an ARB panel of three military
officers to explain why the detainee is no longer a threat to the
United States or its allies, and to provide information to support the
detainee's release. This process remains ongoing and will review each
detainee's status annually.
COMMISSIONS
With respect to the role of military commissions, their use is
firmly based in international law, our Constitution, the Uniform Code
of Military Justice (UCMJ), our Nation's history, and international
practice. The United States employed a military commission to try eight
Nazi saboteurs during World War II. At the conclusion of that conflict,
U.S. military commissions heard some 500 cases against enemy war
criminals. Australia, Canada, China, France, Greece, Norway, and the
United Kingdom used military commissions to prosecute another 1,166
cases against war criminals. In Article 21, UCMJ, Congress expressly
recognizes military commissions and other military tribunals as a
lawful and legitimate means available to the President to try
violations of the law of war. Additionally, Article 36, UCMJ, codifies
the President's authority to prescribe pretrial, trial, and post-trial
procedures for military commissions. That they have not been used since
World War II constitutes acknowledgement of the necessity for their use
only in exceptional situations. Such is the case with respect to
international terrorists who have violated the law of war. On November
13, 2001, the President authorized the use of military commissions in
his Military Order, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism.'' The President took this action
in response to the grave acts of terrorism and threats of terrorism,
including the attacks of September 11, 2001, on the Pentagon, the World
Trade Center, and on the civilian aircraft that crashed in
Pennsylvania.
After the President authorized the use of military commissions,
work began within the DOD to establish, consistent with the President's
order, the procedures to be used and the rights to be afforded the
accused. This process involved working to achieve certain ends,
including: ensuring a full and fair trial for the accused; protecting
classified and sensitive information; and protecting the safety of
personnel participating in the process, including the accused. The use
of military commissions for terrorists who violate the laws of war, as
opposed to other trial alternatives such as the Federal courts or
military courts-martial, best provides the flexibility necessary to
ensure that these equally important yet competing goals are attained.
CONCLUSION
The contemporary battlefield has challenged members of the DOD
legal community as intensively as it has challenged the commanders and
soldiers, sailors, airmen, and marines they advise. The exceptional
performance of our Judge Advocates at every level of command, and in
particular in combat in Iraq and Afghanistan where members of the
uniformed legal branches have been killed and wounded in action, has
been essential to ensuring the overall excellent record of compliance
with the law of war achieved by our Armed Forces. For this, our Nation
should be justifiably proud.
This success has not occurred in a legal environment without its
share of uncertainty. This complex legal reality has generated
significant discussions, reviews and commentaries on how issues related
to executing national security objectives should be resolved. DOD
lawyers, both military and civilian, have worked long and hard to
ensure that our forces had the tools to meet this threat while
upholding the rule of law and preserving American values. We are
confident that Judge Advocates and DOD civilian attorneys will continue
to make essential contributions to our efforts to reconcile the
unconventional nature of combating these threats with the traditional
and historically essential commitment of our Armed Forces to conduct
disciplined military operations in compliance with the law of war.
Established principles of law have served us well to meet the
challenges of military operations in the war on terrorism. We are
confident that they provide the firm foundation for meeting future
challenges.
Senator Graham. Admiral.
STATEMENT OF RADM JAMES M. McGARRAH, CEC, USN, DIRECTOR, OFFICE
OF THE ADMINISTRATIVE REVIEW OF DETENTION OF ENEMY COMBATANTS
Admiral McGarrah. Senator Graham, members of the committee,
I'm Admiral Jim McGarrah, Civil Engineer Corps, United States
Navy, and I'm glad to have this opportunity to appear before
your today. Enemy fighters being detained at Guantanamo Bay are
being held to prevent them from returning to the fight. This is
consistent with internationally accepted principles of the law
of armed conflict, which allows parties to detain enemy
fighters for the duration of hostilities. The Supreme Court
last June affirmed the President's authority to detain enemy
fighters during the conflict. However as we all know, this is
not a traditional type of armed conflict and is unlikely to end
with the signing of a formal armistice. As a result in May of
last year, Deputy Secretary of Defense Paul Wolfowitz named
Navy Secretary Gordon England the designated civilian official
to oversee a process to review annually the cases of all
detainees held under DOD control at Naval Base Guantanamo. This
process is called the Administrative Review Board or ARB. Its
purpose is to assess whether each enemy combatant continues to
pose a threat to the United States or its allies or whether
there are other factors that support continued detention. Based
on this assessment the ARB panel can recommend to Secretary
England that detainees be released, that they continue to be
detained, or that they be transferred to another country,
typically their country of nationality. Secretary England as
the designated civilian official is the final decision maker
for this process.
A process like the ARB is not required either by Geneva
Conventions or by international or domestic law; however,
because of the highly unusual nature of the global war on
terrorism, and because we do not want to detain any combatant
any longer than is necessary, we have taken this unprecedented
and historic action to establish a process to permit enemy
combatants to be heard while a conflict is ongoing.
While the ARB procedures were being developed last summer
the Supreme Court issued three rulings related to detained
combatants. Among other things a plurality of the Court cited
Army regulation 190-8 as an example of a military process that
might satisfy the due process requirements that the plurality
indicated might apply. As a result, Deputy Secretary of Defense
Wolfowitz established the CSRT. That process is to assess
formally whether each detainee was properly detained as an
enemy combatant and to permit each detainee the opportunity to
formally contest the enemy combatant designation. The CSRT
process was based on Army Regulation 190-8, though it provides
more opportunities for detainees than that regulation, and
specifies provisions for tribunals consistent with Article 5 of
the 1949 Geneva Convention. The CSRT is a one-time process and
provides each detainee with a number of opportunities: a review
and consideration by a neutral decisionmaking panel composed of
three commissioned military officers sworn to execute their
duties faithfully and impartially; to attend all open portions
of the proceedings if the detainee desires; to call relevant
and reasonably available witnesses; to question witnesses
called by the tribunal; to testify in his own behalf if he
desires; to receive assistance of an interpreter; and when
necessary to freely decline to testify.
The CSRT also provides more processes and protections than
Army Regulation 190-8. A detainee can receive assistance from a
military officer to ensure he understands the process and the
opportunities available and to prepare for the hearing.
The CSRTs contain express qualifications to ensure the
independence and lack of prejudgment of the tribunal members.
The CSRT recorder is obligated to search Government files for
evidence suggesting that the detainee is not an enemy
combatant. In advance of the hearing the detainee is provided
with an unclassified summary of evidence supporting his enemy
combatant classification. The detainee is allowed to introduce
relevant and reasonably available documentary evidence, and the
result of every CSRT is automatically reviewed by a higher
authority who is empowered to return the record to the tribunal
for further proceedings if appropriate.
The tribunals make their decision by majority vote based on
preponderance of the evidence. In less than 6 months tribunal
hearings were conducted on all 558 detainees under DOD control
at Guantanamo Bay. The CSRT panels determined that 520 of those
detainees were properly classified as enemy combatants, and
that 38 detainees no longer met the criteria for designation as
enemy combatants. Those found no longer to meet the criteria
for enemy combatant designation were processed for release. To
date, 23 have been released and DOD continues to work closely
with Department of State to effect the release of the remaining
15.
While the one-time CSRTs were winding down, we started the
ARB process. The first Administrative Review Board was
conducted in December of last year. The ARB process is still
ongoing and we expect to complete the first annual review for
all eligible detainees by the end of this calendar year. The
ARB process is similar to the CSRT in the opportunities it
affords detainees to have their cases reviewed by a neutral
panel of decisionmakers and to participate in the proceedings.
The ARB panels make their assessments on whether there is
reason to believe the enemy combatant no longer poses a threat
to the United States or its allies or any other factors bearing
on the need for continued detention. We coordinated within DOD
and across many U.S. Government agencies to acquire relevant to
each detainee. Additionally, unless national security concerns
dictate otherwise we coordinate through Department of State to
provide each detainee's home nation the opportunity to provide
information, including the opportunity to submit information
from family members. To date, we have completed 164 ARB
hearings at Guantanamo Bay. Secretary England has made final
decisions in 70 of these cases. Those decisions were that 4
detainees should be released, 25 detainees should be
transferred, and 41 detainees should continue to be held in
detention. We have notified Department of State, and they are
pursuing the appropriate assurances from detainees' countries
of nationality.
The ARB and CSRT processes have required significant time
and resources, but we must do this right because there are two
sides to the fairness coin. First, fairness to the American
people requires that detainees who still pose a threat should
not be released and permitted to return to terrorist
activities. Second, fairness to the detainee as well as our
clear desire not to detain persons any longer than necessary
suggest that those who no longer pose a threat to the United
States or our allies be released or transferred to their own
countries.
Mr. Chairman, thank you again for the opportunity to
provide this information. I'd be happy to answer questions.
[The prepared statement of Admiral McGarrah follows:]
Prepared Statement by RADM James M. McGarrah, USN
Senator Graham, Senator Nelson, and members of the subcommittee, I
appreciate the opportunity to appear before you today.
In May of last year, Deputy Secretary of Defense Paul Wolfowitz
named Secretary of the Navy Gordon England the Designated Civilian
Official (DCO) to supervise the process to review annually the cases of
all detainees held under DOD control at the U.S. Naval Base, Guantanamo
Bay, Cuba. Secretary England appointed me as the Director of the Office
for the Administrative Review of the Detention of Enemy Combatants (OAR
DEC), the organization charged with carrying out the review process. We
solicited input from the International Committee of the Red Cross
(ICRC), from nongovernmental organizations, and from the Ambassadors of
countries whose nationals are detained at Guantanamo Bay, and then
worked across all U.S. Government agencies to develop a rigorous and
fair review process called the Administrative Review Board (ARB). The
purpose of the ARB process is to assess annually whether each enemy
combatant at Guantanamo continues to pose a threat to the United States
or its allies, or whether there are other factors that would support
the need for continued detention. Based on this assessment, the ARB
panel can recommend to Secretary England that individual detainees be
released, continue to be detained, or be transferred to another
country, typically the detainee's country of nationality. Secretary
England, as the DCO, is the final decisionmaker for this process.
While the ARB procedures were being developed last summer, the U.S.
Supreme Court issued three rulings related to detained enemy
combatants. Among other things, the Court in one of those cases held
that Federal courts have jurisdiction, under the Federal habeas corpus
statute, 28 U.S.C. Section 2241, to hear challenges to the legality of
the detention of Guantanamo Bay detainees. In another one of those
cases, a plurality of the Court cited Section 1-6 of Army Regulation
190-8 as an example of military regulations that would suffice to
satisfy the due process requirements that the plurality indicated would
apply to a U.S. citizen held as an enemy combatant in the United
States. In light of those decisions, the Deputy Secretary of Defense
established the Combatant Status Review Tribunal (CSRT) process to
assess formally whether each detainee was properly detained as an enemy
combatant and to permit each detainee the opportunity to contest the
enemy combatant designation. The CSRT process was based on Army
Regulation 190-8, which provides policy, procedures and
responsibilities for the handling of prisoners of war and certain other
detainees. Specifically, it outlines provisions for tribunals that
exceed the requirements of tribunals that implement Article 5 of the
1949 Geneva Convention Relative to the Treatment of Prisoners of War
(GPW), which requires a competent tribunal to determine the status of
belligerents in cases where any doubt arises as to whether a
belligerent satisfies the requirements for prisoner of war status. The
CSRT is a one-time process, and provides each detainee with the
following opportunities consistent with Army Regulation 190-8:
The opportunity for review and consideration by a
neutral decisionmaking panel composed of three commissioned
military officers sworn to execute their duties faithfully and
impartially. The tribunals make their decisions by majority
vote, based on the preponderance of the evidence;
The opportunity to attend all open portions of the
proceedings if he desires;
The opportunity to call witnesses on his behalf, if
those witnesses are relevant and reasonably available;
The opportunity to question witnesses called by the
tribunal;
The opportunity to testify on his own behalf if he
desires;
The opportunity to receive assistance of an
interpreter, when necessary; and
The opportunity freely to decline to testify
The CSRT process also provides more process and protections than
Army Regulation 190-8:
The detainee is given the opportunity to receive
assistance from a military officer to ensure he understands the
process and the opportunities available, and to prepare for his
hearing.
The CSRTs contain express qualifications to ensure the
independence and lack of prejudgment of the tribunal
The CSRT Recorder is obligated to search government
files for evidence suggesting the detainee is not an enemy
combatant
In advance of the hearing, the detainee is provided
with an unclassified summary of the evidence supporting his
enemy combatant classification
The detainee is allowed to introduce relevant and
reasonably available documentary evidence
The result of every CSRT is automatically reviewed by
a higher authority, who is empowered to return the record to
the tribunal for further proceedings, if appropriate.
Secretary England appointed me as the Convening Authority for the
CSRT process. The CSRT tribunal panels were the decision makers in this
process. In my Convening Authority review, I could either approve a
panel's decision or return a case for further deliberations. In less
than 6 months, tribunal hearings were conducted on all 558 detainees
under Department of Defense control at Guantanamo Bay. Of the 558 cases
heard, the CSRT panels determined that 520 detainees were properly
classified as enemy combatants, and that 38 detainees no longer met the
criteria for designation as enemy combatants. Those found no longer to
meet the criteria for enemy combatant designation were processed for
release. Twenty-three have been released; the DOD continues to work
closely with Department of State to effect the release of the remaining
15 detainees.
The first Administrative Review Board was conducted on December 14,
2004. The ARB process is ongoing, with the expectation that we will
complete the first annual review for all eligible detainees by the end
of this calendar year. The ARB process provides each eligible detainee
with the following opportunities:
The opportunity for review by a neutral decisionmaking
panel of three commissioned military officers sworn to execute
their duties faithfully and impartially. The tribunals make
their assessments, in writing and by majority vote, on whether
there is reason to believe the enemy combatant no longer poses
a threat to the United States or its allies and any other
factors bearing on the need for continued detention;
The opportunity to attend all open portions of the
proceedings;
The opportunity to testify on his own behalf if he
desires;
The opportunity to receive assistance of an
interpreter, when necessary; and
The opportunity to receive assistance from a military
officer to ensure he understands the process, and to prepare
for his hearing.
Again, the intent of the ARB process is to assess annually whether
each detainee continues to pose a threat to the U.S. or its allies and
to recommend whether each detainee should continue to be detained,
released, or transferred.
In order to accomplish this assessment, we coordinate within the
Department of Defense, and with the Department of State, Department of
Justice (including the Federal Bureau of Investigation), Central
Intelligence Agency, Department of Homeland Security, and the National
Security Council staff to acquire information relevant to each
detainee's situation. Additionally, unless national security concerns
dictate otherwise, we coordinate through the Department of State to
provide each detainee's home nation the opportunity to provide
information, including the opportunity to submit information from the
detainee's family.
To date, we have completed 164 ARB hearings at Gitmo. Secretary
England has made the final decisions on 70 of these cases, that 4
detainees should be released, 25 detainees should be transferred, and
41 detainees should continue to be detained. We have notified
Department of State, and they are pursuing the appropriate assurances
from the detainees' countries of nationality.
A process like the ARB is not required by either the Geneva
Conventions or international law; it is discretionary on the part of
the U.S. Government. There are no absolutes and this process does
contain some risk to American citizens, for example, the possibility of
releasing a detainee who returns to the fight against U.S. forces.
However, to do it right, the ARB and CSRT processes have required
time, and have not been without their challenges. For example, the
pursuit of off-island witness input for CSRT hearings was very time
consuming, and we have received very little input from home countries
in the ARB process. But we must do this right, because there are two
sides to the fairness coin. First, fairness to the American people
requires that those in detention who still pose a threat should not be
released and permitted to return to terrorist activities. Second,
fairness to the detainee, as well as our clear desire not to detain
persons any longer than necessary, would suggest that those who no
longer pose a threat to the United States or our allies be released or
transferred to their own countries.
However, because of the highly unusual nature of the global war on
terrorism, and because we do not want to detain any combatant any
longer than is necessary, we have taken this unprecedented and historic
action to establish a process to permit enemy combatants to be heard
while a conflict is ongoing.
Mr. Chairman, thank you again for the opportunity to provide you
this information. I am happy to answer any questions you or your
subcommittee members might have regarding the CSRT or ARB processes.
Senator Graham. Admiral.
General Hemingway.
STATEMENT OF BRIG. GEN. THOMAS L. HEMINGWAY, USAF, LEGAL
ADVISOR TO THE APPOINTING AUTHORITY FOR THE OFFICE OF MILITARY
COMMISSIONS
General Hemingway. Mr. Chairman, members of the committee,
I'm Brigadier General Thomas L. Hemingway. I'm the legal
advisor to the appointing authority in the Office of Military
Commissions, and I'm pleased to discuss the operations of the
Office of Military Commissions.
America is at war. It's a war as tangible as the blood and
dust that littered the streets of Manhattan on September 11. In
response to the attacks on the United States, the President
established military commissions to try those noncitizen
members of al Qaeda and other persons engaging in specified
terrorist activities who are alleged to have committed
violations of the law of wars and related offenses.
Military commissions tried enemy combatants for violations
of the law of war in many of the conflicts in which the United
States has been involved. The President has determined that
military commissions shall be full and fair trials. However,
the application of the Federal rules of evidence have been
deemed impracticable. The President's military order focuses on
the unique factors of the ongoing hostilities and affirms that
national security interests require the continued application
of U.S. national security laws in developing commission
instructions and regulations, consistent with a full and fair
trial for each accused.
One DOD directive, six commission orders, nine separate
commission instructions, and three appointing authority
regulations implement military commission processes. Our
commission rules which afford an accused multiple procedural
protections, balanced with national security interests, compare
favorably to those being used in the international criminal
tribunal for Rwanda and the international criminal tribunal for
the former Yugoslavia. The Office of Military Commissions has
taken key steps to move the commission processes forward.
Trials commenced in 2004.
Trials are stayed pending an appellate court decision in
the case of Mr. Hamdi. Counsel for Mr. Hamdi brought action in
United States District Court to review the legality of military
commissions. The court recognized the authority of the
President to establish military commissions to try offenders or
offenses that by statute or the law of war may be tried by
military commission and a review panel as an appeals mechanism.
However the court raised concerns about the exclusion of the
accused during the hearing of classified and protected
information. The Government has appealed this ruling. The
delays to the commission process are directly attributable to
the exercise of the accused's ability to challenge that process
in Federal courts.
The ongoing global war on terrorism continues to pose
unique challenges. Neither the United States nor the
international community contemplated a non-state organization
having the capability to wage war on a global scale. Military
commissions are the appropriate forum to preserve safety,
protect national security, and provide for full and fair trials
consistent with our standards and those of the international
community. Thank you, Mr. Chairman.
[The prepared statement of General Hemingway follows:]
Prepared Statement by Brig. Gen. Thomas L. Hemingway, USAF
Mr. Chairman and members of the subcommittee: I am Brigadier
General Thomas L. Hemingway. I am the Legal Advisor to the Appointing
Authority for the Office of Military Commissions. I am pleased to
discuss the operations of the Office of Military Commissions, the
protections afforded accused before Military Commissions, and the
current status of cases pending before Military Commissions.
America is at war. This war is not a metaphorical war; it is as
tangible as the blood, the dust, and the rubble that littered the
streets of Manhattan on September 11, 2001. The reality of this war
could be seen in the faces of those who stood in stark horror as they
saw helpless, innocent people fall and jump to their deaths from the
Twin Towers. In response to the attacks on the United States on
September 11, 2001, the President established military commissions to
try those non-citizen members of al Qaeda and other persons engaging in
specified terrorist activities who are alleged to have committed
violations of the law of war and related offenses.
The use of military commissions predates the formation of our
republic. Since the Revolutionary War, the United States has used
military commissions to try enemy combatants for law of war violations.
In the Mexican-American War, during the Civil War, following the Civil
War, during and after World War II, military commissions were used to
try enemy combatants for violations of the laws of war. In the
President's Military Order establishing military commissions, he
mandated that the accused shall be afforded full and fair trials. The
President also determined that the Federal Rules of Evidence are not
practicable for military commissions given the nature of the conflict.
This determination is based on the unique factors present in conducting
judicial proceedings against suspected war criminals at a time when the
United States is actively engaged in an on-going armed conflict.
Instead of the Federal Rules of Evidence, military commissions have
adopted the internationally accepted standard for admissibility of
evidence--probative value.
The President's Military Order focuses on the unique factors of the
current ongoing hostilities and affirms that national security
interests require the continued application of U.S. national security
laws in developing commission instructions and regulations consistent
with the accused's right to a fair trial. These orders, instructions,
and regulations afford an accused the following rights:
1. Presumption of innocence
2. Trial before an impartial and independent panel of three
to seven officers
3. Notification of charges in language understood by the
accused
4. Call witnesses and present evidence
5. Cross-examine witnesses and examine evidence
6. Election not to testify at trial with no adverse inference
7. Appointment of military counsel at no cost to defendant
and right to hire civilian counsel at no expense to the
government
8. Privileged communications with defense counsel
9. Adequate support and resources to defense counsel
10. Appointment of interpreters and translators
11. Open proceedings, except as absolutely necessary to
protect national security
12. Proof of guilt beyond a reasonable doubt
13. Review of the record of trial by a three-member review
panel
The rules of evidence and procedure established for trials by
military commission compare favorably to those being used in the
International Criminal Tribunal for Rwanda and the International
Criminal Tribunal for the former Yugoslavia. These rules are consistent
with our National commitment to adhere to the rule of law.
The Office of Military Commissions has taken key steps in moving
the commission process forward. To date, the President has determined
that 12 detainees currently at Guantanamo are subject to his Order. The
Appointing Authority, John D. Altenburg, has approved charges against
four accused and referred these charges to military commissions for
trial. Those trials commenced late in the summer of 2004. The Office of
Military Commissions has been working diligently to convene military
commissions; however, the trials are stayed pending an appellate court
decision in the case of Mr. Hamdan. Military and civilian counsel for
Mr. Hamdan brought an action in the United States District Court to
review the legality of trial by military commissions. The district
court affirmed the legality of military commissions to try violators of
the law of war and a review panel as an appeals mechanism; however, the
Court raised concerns about the commission process whereby an accused
may be excluded from the hearing to protect classified and protected
information. Because this protection is essential to the continued
effectiveness in our current war on terror, the government has appealed
this ruling. The delays to the commission process are directly
attributable to the exercise of the accused's ability to challenge that
process in the Federal courts. While the appeal is pending,
investigations and submissions of charges against additional accused
continue.
This is the first time since World War II that the United States
has had a need to convene military commissions. While it is important
to move quickly back to trial, the Office of Military Commissions'
movement forward is measured with full awareness and consideration of
the rights of an accused and the needs of our Nation.
The ongoing global war on terrorism continues to pose many unique
challenges in an asymmetrical battlefield. Neither the United States
nor the international community contemplated a non-state organization
having the capability to wage war on a global scale. Military
commissions are the appropriate forum to preserve safety, protect
national security, and provide for full and fair trials consistent with
our standards and those of the international community.
Senator Graham. Thank you, General. We are in a series of
votes, and we'll try to keep the committee process going the
best we can. Thank you all for your testimony and showing up.
One of your statements, General Hemingway, I totally agree
with. No one has really contemplating this kind of war before.
But we are past the contemplation stage, we are in it, and we
are learning. We are adjusting, and overall, I think we've done
a very good job.
Number one, military tribunals are the way to go. I
totally, completely agree with the concept with which you had
started. Enemy combatant status is a legitimate legal status to
confer on certain people. I don't want to do away with it; I
want to be sure it operates in a way that the courts will sign
off on and we can move forward in terms of world image to show
the world that an enemy combatant can be fairly determined, the
status can be fairly challenged, and they will stay there as
long as they need to, to keep this country and the world safe
from people who want to do harm.
In terms of intelligence gathering, the stress, physical
and psychological, that can be applied, should be applied.
Let's just do it in a way that doesn't create a black eye. The
reforms that you've made are very good.
My central theme here is that under Article 1, Section 8,
Clause 11 it says Congress shall have the power to make rules
concerning captures on land and water, among other things. Mr.
Dell'Orto, do you agree with this general proposition, that the
courts who have reviewed enemy combatant status and the
tribunal system that's currently in effect, have on more than
one occasion spoken to the idea that Congress should get
involved. Justice Scalia is very direct about that in his
opinion, that Congress should help give us guidance. Because to
do this by habeas review, I think, is a hodgepodge of
inconsistent legal decisions that will be appealed forever.
No matter what the Court of Appeals decides in the case you
just mentioned, General Hemingway, there will be an appeal, and
this could go on for a while. So what I'm proposing, or the
idea that I'm suggesting, is do you believe congressional
action in defining enemy combatant status and approving a
military tribunal system, would that be well received by the
courts? Would that help us in terms of our current legal
situation? What would your opinion be of that?
Mr. Dell'Orto. Mr. Chairman, my view is, as I think I
expressed in the opening statement, that the framework of laws
under which we currently operate give us the ability to
prosecute the war under the rule of law as it currently stands
and that legislation is not necessary. I believe the courts
ultimately will see their way through these issues and I
believe they have already indicated that. As I indicated during
those opening remarks, the Supreme Court has determined----
Senator Graham. So it your legal opinion that a statute
passed by Congress determining enemy combatant status would not
have a preferred legal position in courts, versus what you're
currently doing?
Mr. Dell'Orto. I'm not sure that it would. I can't predict
how a court would rule given a statute presented to it. I do
say at this point in the absence of any legislation to that
effect, the courts I believe are aligning themselves in such a
way, and it may take decisions by the Supreme Court that
continue to affirm the framework under which we are currently
operating.
Senator Graham. I'm going to have to vote. I'll continue my
line of questioning here a bit later. Senator Nelson.
Senator Ben Nelson. Thank you, Mr. Chairman. Mr. Dell'Orto,
in categorizing the detainees in custody as enemy combatants,
can you enlighten us on the kind of treatment that they would
be entitled to or the kind of treatment that would be outside
the limits of acceptable treatment?
Mr. Dell'Orto. Under the determinations that have been made
to date on the war on terrorism by the President, in confirming
what the Secretary of Defense had directed on January 19, 2002,
the baseline standard is humane treatment; but to the extent
that a treatment is appropriate and consistent with military
necessity, the treatment should also be consistent with the
principles of Geneva. So we have, at least we have a baseline
standard, a minimum standard under all circumstances, and a
standard to which we should be ascribing consistent with our
military needs in these ongoing operations and this ongoing
conflict.
Senator Ben Nelson. In her opinion in the Hamdi case,
Justice O'Connor made the statement that the Government has
never provided any court with the full criteria that it uses in
classifying individuals as enemy combatants. Is there a
definition that is accepted internationally as to what an enemy
combatant is? Does this include what Justice O'Connor would
refer to as full criteria?
Mr. Dell'Orto. I'm not sure that I have the precise answer
to that question, Senator. Again, we have people who have taken
up arms who are engaged in hostilities against a foreign
government. In this instance, it does incorporate the acts of
al Qaeda as a non-nation state actor in addition to the acts of
the Taliban as a part of what was then the Afghan Government.
Senator Ben Nelson. Would anybody else have any thoughts
about the full definition or the full criteria might constitute
a definition? I guess you're on your own. I appreciate that.
I know that each Service has a fairly extensive, maybe
broadly extensive training program for judge advocates and part
of the training includes the doctrine for dealing with
detainees in military operations. Could each of you describe
what your doctrine is by Service, for handling detainees? In
doing so, is there interservice consultation to maintain some
consistency within each branch? Maybe, General Romig, you might
lead off.
General Romig. Thank you, Senator. Well, the baseline
starting point is we train them on the international
conventions, the Geneva Conventions and what the law of war
requires. That's done at the entry stage in the basic courses.
All of the basic courses in all of the Services train the
Geneva Conventions and law of war, and with a historical
overview of how it's been planned in the past and that sort of
thing.
We also do a lot of joint training. We have courses at our
school. There are courses at the Air Force and the Navy school
that we send people to. So we do law of war courses, specific
law of war courses, operational law courses where they actually
address what needs to be done in the legal environment as far
as handling of detainees and the different statuses of
different kinds of detainees: prisoners of war, civilians,
unlawful combatants, those sorts of things.
Senator Ben Nelson. Do you feel that there is sufficient
definition, or clarification, at the present time to be able to
deal with the detainees at Guantanamo?
General Romig. Well yes, sir, because al Qaeda and the
Taliban are individuals not subject to the Geneva Conventions.
They are not parties to a conflict, they don't meet any of the
definitions for criteria under the Geneva Conventions for
lawful combatants. So I think however you look at it, yes,
there is sufficient definition for them to address that.
Now, it's a different situation in Iraq where we are
dealing with the conventions. Our people know what the rules
are in that environment, too, as far as whether they are POWs
or under the civilians convention and that sort of thing.
So I think if we had a very precise definition, it would
end up perhaps being too restrictive on the ability of
commanders and soldiers and lawyers to work within the
international treaties.
Senator Ben Nelson. Does your service doctrine permit
degrading, abusive, or humiliating treatment?
General Romig. No, sir, it does not. In fact, under the
UCMJ that would be an offense, maltreatment of subordinates. We
have, in fact, court-martialed and taken other action against a
number of people in Iraq and other places that have engaged in
that. In fact, we've tried 197 people for detainee abuse since
the war on terrorism started.
Senator Ben Nelson. So the standard of humane treatment
raises certain questions about what constitutes still
acceptable treatment under the Army doctrine, is that accurate?
General Romig. The baseline is pretty clear, Senator.
Humane treatment means you protect them, you clothe them, you
feed them, you give them medical care, you give them a
religious accommodation, and you account for them. All of these
basic baseline items that we are doing, everybody is trained on
that; they know that.
In addition, all of our people are trained that when you
capture somebody on the battlefield, you initially treat them
as a POW. That is the highest status that they can have on the
battlefield is a POW. We train everyone to initially treat
whoever they capture as a POW. They don't make a determination
whether they are an unlawful combatant or otherwise.
Senator Ben Nelson. Thank you. My time has expired.
Senator Roberts.
Senator Roberts. Thank you, Mr. Chairman. Gentlemen, allow
me to start by thanking you for being here today, all of you,
and for your service to the country. In past weekend, I visited
Gitmo along with Senator Hagel. Many others have gone before
me, and I'm very pleased to hear that the chairman of the full
committee will be going down along with the chairman of the
subcommittee.
I think this is an operation that today we can be proud of.
Were there mistakes in the past, yes, but certainly not today
in regards to what many of our concerns are.
As has been said, we all have the best interest in ensuring
that those released through the ARB process, or the CSRT--we
get into a lot of acronyms here--do not pose a threat to
American or coalition soldiers overseas, do not maintain the
desire or capability to levy attacks on our homeland and are of
no further value to the military or law enforcement agencies
with regard to the intelligence that they may possess. So I
have a couple of questions in that regard.
I'm concerned about releasing the detainees that should not
be released. We just can't afford to be making any mistakes
when it comes to releasing releasing some of these enemy
combatants, I call them terrorists. We all know that for
violations of domestic law, we often find that offenders who
are released reappear as repeat offenders. All the newspapers
and media are replete with coverage of that. If we release the
wrong detainee, he's a repeat offender, it could result in the
death of American troops or an attack on our homeland. So what
assurance can you give us that every new effort is being made
to ensure that this does not happen?
Mr. Dell'Orto. Senator, I'll take that. In attempting to be
flexible in this particular war, early on it was determined
that we would have to consider releasing some people over time
because of the, at least the apparent indefinite duration of
the conflict. Now, I would point out that any conflict appears
at various points in time as one that will be indefinite. I
mean, it's a balancing test. Having made the decision that we
don't want to detain people unnecessarily, beyond the time we
consider them a threat, you have to go on the available
information. So we do our best to screen, and have from the
earliest days, screen these people and reassess the threat that
they pose, based on additional information we receive or
indications they give us, as they're on the grounds at
Guantanamo, as to what the future may hold.
It's not perfect. I cannot give you a 100-percent
guarantee. If this were a normal conflict, we would hold every
one of these people until the cessation of hostilities. We
don't know when that will be. But for the moment we are trying
to strike a balance between not keeping them too long and yet
ensuring that those who pose a threat of significance are not
released.
Senator Roberts. You've testified extensively concerning
the status of the detainees at Gitmo that have gone through a
CSRT. How quickly are the new tribunals held for incoming
detainees?
Mr. Dell'Orto. I'll defer to Admiral McGarrah on that.
Admiral McGarrah. Senator, the last incoming detainees to
Guantanamo were in September of last year and they were
immediately integrated into the schedule and those hearings
were completed within the 6-month period that I mentioned, by
January.
Senator Roberts. I appreciate that. Since they were
established in July of last year, how many instances have there
been when a tribunal for an incoming detainee has been delayed?
Admiral McGarrah. Sir, I wouldn't characterize any of them
as having been delayed. They were integrated immediately into
the schedule.
Senator Roberts. How many instances do you know of where
someone went through the tribunal process and was found not to
be an enemy combatant and then found fighting against U.S.
forces after their release, appearing on the al Qaeda Web page?
Admiral McGarrah. Of the 38 that we have determined through
the CSRT process, none have been found yet to have returned to
the battlefield. There were prior processes before we
implemented both the CSRT and ARB, and about a dozen of the
over 200 that have been released since the start of the
operations in Gitmo have been found to return to the
battlefield.
Senator Roberts. I know there was a comment earlier that
the situation down there in regards to how we review these
cases is a mess. I quarrel with that. I don't quarrel with the
Senator's concern, and that Senator has been to Gitmo. But the
tenets of ARB are the annual administrative review to review
all reasonably available relevant information not governed by
Federal rules of evidence, independent review, the detainee may
actually participate and provide information during a war, to
consider information from home country and relatives. To
consider threat determination, intelligence, value, law
enforcement interest and potential for war crimes charges.
Unclassified portions of the ARBs are open to the media. There
is a recommendation for options, i.e., release, transfer,
detain. The Designated Civilian Official (DCO) makes the final
decision. There is obviously the interagency communication of
outcomes. I don't think that's a mess.
There is a handout that you get at Gitmo, I'm not saying
it's a handout that is just a handout. I think if you read
through it and you look at the situation down there and the
unique situation we face, I think this process is
unprecedented. Never before in the history of any kind of
warfare attack on any country has any country tried so hard to
treat prisoners humanely and try to come up with some legal
process whereby it can be of value and we can get, and we could
get to where we want to be. It's historic. It's discretionary,
it's not required by the Geneva Conventions, international or
domestic laws. The combatants, i.e., the terrorists, can be
heard during the ongoing hostilities. I think it's substantive,
I think it's comprehensive, I think it's rigorous, and I think
it's repeatable.
Now the fact that we have not come up with some better
definition or solved what I call a perception problem, I think
is probably the case. But certainly, as we go through, it will
hopefully mitigate the concern about indefinite detention
during this very unconventional type of war. We are in an
unconventional situation. My time has expired. I thank you
again for your contribution.
Senator Ben Nelson. Senator Kennedy.
Senator Kennedy. Thank you very much, and thank all of you
gentlemen for being here.
We began holding these hearings on these issues more than a
year ago. At that time the administration promised the American
people to get to the bottom of the abuses that shocked the
world, yet since that time we have seen neither hide nor hair
of the General Counsel Haynes and his absence speaks volumes.
Mr. Dell'Orto, can you tell us why he didn't come today?
Mr. Dell'Orto. Senator, the invitation that Senator Graham
issued came to me and I don't have any other explanation beyond
that.
Senator Kennedy. You have no understanding why he hasn't
appeared here?
Mr. Dell'Orto. No, sir.
Senator Ben Nelson. Can I ask you, are you going to give a
positive response to the memorandas that Senator Levin
mentioned?
Mr. Dell'Orto. The March 14, 2003, memorandum I responded
to Senator Levin several weeks ago and indicated that is under
review. I will for the purposes of this record indicate that
that memorandum was withdrawn as an operational document, and
so it is no longer in effect and it is no longer being
considered a precedent of any sort.
Senator Kennedy. What was the date of the withdrawal?
Mr. Dell'Orto. It was certainly as recently as February of
this year, but we were asked not to rely upon it going back to
December of 2003. I have not relied upon it since.
Senator Kennedy. Senator Levin obviously is going to follow
up with this. Last year, the Federal Bureau of Investigation
(FBI) raised serious concerns. I address this to our panel
about the interrogation techniques at Guantanamo. The FBI
repeatedly raised the concern that these techniques were not
effective at producing reliable intelligence, and these
``torture techniques,'' as they called them, would become an
issue if military commissions were used. In the case of the
twentieth hijacker, the FBI noted that he had been subjected to
intense isolation for 3 months and then military working dogs
were used to threaten him. They said he showed signs of extreme
psychological trauma: talking to nonexistent people, reporting
hearing voices, crouching in the corner of the cell covered
with a sheet for hours on end.
The interrogation techniques that were described by the FBI
and again yesterday in graphic detail to this committee, were
eerily reminiscent of the abhorrent practices that took place
at Abu Ghraib: forcing a detainee to wear women's underwear on
his head, leashing the detainee like a dog and forcing him to
do dog tricks, intimidating detainees with military dogs, and
stripping detainees.
General Miller was in charge of Guantanamo when these
abuses occurred and after that he went back to Abu Ghraib, and
those same interrogation techniques were used. General Craddock
yesterday said that while this treatment is degrading and
abusive, it was not inhumane, and thus did not violate U.S.
policy. If that is so, why in the world are lower ranking
military police (MPs) at Abu Ghraib and Guantanamo being
prosecuted for engaging in similar behavior, and General Miller
is not?
Mr. Dell'Orto. Senator, the incidents at Abu Ghraib had no
connection to any authorized interrogation gathering effort.
Furthermore, Abu Ghraib was conducted in a Geneva Conventions-
governed environment, and we did have different standards at
place there.
Senator Kennedy. I don't know whether any of the others are
troubled by that conclusion, our situation, but I find that
enormously troublesome myself, why we have a dual standard. We
have been trying since the beginning to find out why the
civilian authorities, civilian authorities, changed the rules
and who changed them and when did they change them. Why, for
example, in some of these meetings that the JAG offices
actually indicated that they expressed opposition to some of
these changes.
This was true--when was that date?--when we had the
hearing, the working group report on 2003. We had the report
that the JAG offices expressed some reservations, and
nonetheless that those reservations were overruled by General
Counsel Haynes. Were any of the officers here today in any of
those meetings where they expressed reservations about those
interrogation techniques? Could I ask?
General Romig. Yes, sir, I did attend. There was a working
group that I and many of the members here were part of. It was
very open and candid. We provided our input and our view of
what was proper as far as procedures and techniques.
Senator Kennedy. Let me just give it to you quickly if I
could, to be precise. I couldn't find the reference earlier. I
asked Vice Admiral Church about the legal underpinning that set
some of these difficulties, interrogations in motion. He
acknowledged that within the Pentagon there was disagreement
about whether to adopt these bodies embodied in the April 2003
working group on interrogation. He told us that it had been
well reported that top JAG offices were under civilian
authorities, that adopting the policies contained in the report
would lead to undermining military culture and abuse.
Importantly, Vice Admiral Church told the committee that the
JAG's objections were overruled by General Counsel Haynes.
I'm just interested whether any of those JAGs that are on
our panel today were at that particular meeting, whether they
expressed a view. Could any of you respond, please?
General Sandkuhler. Senator Kennedy, I was present in the
process along with General Romig and General Rives. We
expressed our opinions, throughout the process, whether in
support or against various procedures and techniques, and I
believe our opinions were considered. The policymakers and
decisionmakers made their decisions based upon our input, so we
were present at those meetings.
Senator Kennedy. You were present and you made your
recommendations, and were the recommendations you supported
included in the final or were they overruled?
General Sandkuhler. I don't know if I would say they were
overruled. They were considered, and I can't say specifically--
--
Senator Kennedy. Were they included in the final?
General Sandkuhler. I mean they were, our opinions were
recognized.
Senator Kennedy. Well, that's the best we are going to get
from you that our views were recognized. When we have the
testimony that it was--expressed opposition and now we have
before the United States Senate, you're called up here on a
panel and direct questioning you say our rules were recognized.
I'm asking you, we have had the testimony from the director of
this report, that said that opposition to that was expressed by
the JAGs. I'm just asking you, were you there and did you
express opposition, please? Can I get an answer? My time is
running out.
General Romig. Senator, I believe I did say that. We did
express opposition to certain things that were being proposed.
Other things we did not, and I believe that our opposition was,
was accepted in some cases, maybe not in all cases. But it did
modify the proposed list of techniques and procedures, so I
have to say that we did have an impact. It was listened to.
Senator Kennedy. Please, any of the others that were there?
General Rives. Senator, along with others here on the panel
and other senior members of the JAG Corps of the Services, as
well as junior personnel participating, I participated in these
discussions. Military attorneys advised on both law and policy
considerations. On the legal issues, we come down most strongly
as to where legal lines have to be drawn. On policy
considerations it's very important to make sure that our
observations based on military experience be considered. I am
satisfied that we properly raised the concerns of what the
legal limits are, as well as what policy considerations should
be brought to bear, and then ultimately, the individuals
charged with making those policy calls did take those matters
into consideration.
Senator Kennedy. Well, my time is up. But I do find that
Admiral Church told the committee that the JAG's objections
were overruled by General Haynes. That's what his testimony
was. But we are getting different answers here today. Thank
you.
Senator Graham. Senator Kennedy, I'd like to pursue that a
bit, too. I have some knowledge of it. The bottom line is that
the DOJ memo or recommendation about what would constitute
torture, what would be a violation of international law or
domestic law regarding interrogation techniques, alarmed the
JAGs who reviewed it, is that true or not? Speak up.
General Romig. Yes, sir, that is true.
Senator Graham. General Rives.
General Rives. That is true, Mr. Chairman.
General Sandkuhler. Yes, sir.
Senator Graham. It alarmed you because you're not soft on
terrorism, because you understand that we have been supporting
for 60 years a certain way of doing business. That as military
lawyers you don't want to get your troops in trouble by having
a confusing legal situation. You don't want to do something
that would violate the UCMJ in terms of treating people in your
charge.
October 7, 2004, Senator McCain, Senator Levin, and I wrote
a letter to the Secretary of Defense requesting the
declassification of the memos that Senator Kennedy is talking
about. I'm not going to get into the subject matter other than
I agree with the legal analysis. People did adjust later, to
the Secretary's credit, when he was told several months later
that there was a division about these interrogation techniques,
that he basically got the input received and the interrogation
techniques were modified based on your input.
But I think it is I think it is fair to say that the
Department of Defense was secondary to the DOJ in a political
sense, and that was your problem. If they had listened to you
from the onset, we wouldn't have a lot of the problems that we
have dealt with in the past.
Now I've been told by the White House that these memos are
going to be declassified. I have asked for them a thousand
times, almost literally, and they tell me that they have talked
to you. Is that true, sir, about these memos?
Mr. Dell'Orto. Yes, sir, they have.
Senator Graham. Are we going to get them or not?
Mr. Dell'Orto. I suspect you're going get them very soon.
Senator Graham. Okay.
Mr. Dell'Orto. But I would add this, Mr. Chairman, the
contents of those memos remain very much a part of the
deliberations of the DOD during the period of time that those
deliberations were ongoing. They remain sensitive in that
respect. Now, they have been classified to date, but as I
believe you know, they've been available to you during this
entire time for consideration.
Senator Graham. I understand. I'm trying to use the memos
to illustrate a point of how well off we are as a Nation, that
we have people in uniform that can speak their mind and that
have a good sense of balance, and all of them signed up to be
warriors, and to advise warriors. They have had some concerns
about the road that we are going down and there has been
correction.
The whole point of this hearing is not to close Guantanamo
Bay, on my part. It's to try to bring some legal remedies or
legal assistance to our current dilemma, and I'm going to ask
this question again. General Hemingway, I have read these
cases. It is clear to me that the administration position that
Guantanamo Bay is extraterritorial, was rejected. It is clear
to me that the courts are sympathetic to military tribunals. It
is clear to me that the courts are sympathetic to the idea of
enemy combatant status, but there are some legal objections for
the way enemy combatant status is being defined. There are some
legal concerns about the military tribunal makeup, and it's no
one's fault.
I supported what you were doing. I went to a press
conference saying this is the way to go. Two and a half, 3
years later, gentlemen, here is where we are. We are still in
court and nobody has been prosecuted. No matter what the
Appellate Court says, it's going to go to the Supreme Court and
God knows how long that's going to take. So what I'm trying to
offer is under Article 1, Section 8, Clause 11, Congress has
the power to regulate captures on land and sea.
I'm trying to put on the table a collaborative process
where we can come up with a definition of enemy combatant
status where Senator Levin and I and the President can agree
what it means, put it in a statute, that we can come up with
the idea that military tribunals are an appropriate way to try
terrorists, and have a procedure that protects the homeland
that will be seem internationally as fair, and is not a Federal
Court system, not an UCMJ system. I'm trying to offer the idea
that statutory involvement will break this legal logjam.
My question to you, General Hemingway: Do you believe that
if a statutory definition were offered by Congress and
statutory blessing of military tribunals were offered by
Congress, would the courts receive that in a preferential way
over the current system? Do you believe that would be the case?
General Hemingway. Senator, I can't divine what the courts
would say, but I think that the definitions that Congress has
already provided us under the UCMJ, Title X Section 821, are
adequate. I think the rules and procedures that the executive
has established currently are adequate, and I don't know of any
statutory way to convince the courts to recognize the doctrine
of abstention.
Senator Graham. Are you familiar with Justice Scalia's
comments about the role of Congress and his opinion regarding
the status of Guantanamo Bay? What do you think he is telling
us?
General Hemingway. His comments were not addressed to me,
Senator.
Senator Graham. They were addressed to the Nation. He is
telling us Congress needs to get involved, because the courts
do not want to run this war through habeas corpus, or habeas
relief. They don't feel comfortable doing that, but that's
exactly where we are. What I am proposing is that we correct
that, that we don't change the concepts, we improve them, and
that you get blessing by Congress.
Mr. Dell'Orto, do you believe that if a congressional
action were taken where the President could agree about enemy
combatant status and military tribunal makeup, that it would
enhance the status of Gitmo because you have congressional buy-
in?
Mr. Dell'Orto. Mr. Chairman, the President has powers under
the Constitution. He has Congress's authorization of September
18, 2001. I believe under Supreme Court precedent, that gives
him an awful lot of authority to run this war. I would also say
that----
Senator Graham. Do you believe we have authority as
Congress to regulate captures on land and sea?
Mr. Dell'Orto. I'd have to take a look at that particular
constitutional provision; I haven't examined that one of late,
but if that's what it says, I suspect you have that authority
to attempt to legislate. I would also say, though, and this
goes back to your other comment about a bunch of lawyers in
this room, regardless of what happens, whether there be
legislation or no legislation, we are going to stay in
litigation. That is the type of world in which we live today,
for better or worse. As we, our office and I, deal with
legislation every day and I'd like to think it's perfectly
clear when we interpret it, when we get it on the ground.
That's not necessarily the case.
So again, I do not mean to be glib in any way, but I don't
know that that's a panacea for any problem we might have right
now, and I don't think we need additional authorities.
Senator Graham. The point is we are in litigation and it's
going to continue. The courts are telling us in my opinion that
a statutory definition or congressional involvement would be
given more weight. You don't agree with that general legal
concept, that courts tend to defer to legislative bodies versus
executive action when it comes to something like this?
Mr. Dell'Orto. I think they tend to do that in most
instances. But again, when we are talking about the waging of
war overseas, perhaps in the country, that historically there
is much more latitude given to the President.
Senator Graham. Given our current litigation stalemate
where we are under a stay of prosecution, would anybody venture
a guess as to when we will be able to prosecute someone at
Guantanamo Bay, who God knows deserves it? One year, 2 years?
Six months? Does anybody have any idea when we can finally
bring somebody to justice down there?
Mr. Dell'Orto. Mr. Chairman, I believe we are waiting for
the D.C. Circuit's decision in Hamdi very soon. It's on
expedited appeal.
Senator Graham. What would happen after that? What is the
most likely legal scenario?
Mr. Dell'Orto. Within a short period of time, General
Hemingway may have a better prediction on this, but probably on
the order of 30 to 45 days, if not sooner, we'd be back----
Senator Graham. Will it be appealed to the Supreme Court?
Mr. Dell'Orto. I would assume that if we lose, we will
appeal to the Supreme Court. I assume that if the Defendant
loses he may attempt to.
Senator Graham. General Hemingway, how long will it be
before we have someone prosecuted at Guantanamo Bay?
General Hemingway. Senator, assuming that the mandate of
the court removes the restraining order, I think that Mr.
Dell'Orto's assessment of 30 to 45 days is correct. We will be
back underway trying cases at Guantanamo.
Senator Graham. I'm sorry. Could you repeat that.
General Hemingway. Surely. Assuming that the Circuit Court
in its mandate overturns the restraining order in the Hamdi
case, we will be back underway and trying cases at Guantanamo
in 30 to 45 days after that's removed.
Senator Graham. Okay. Is that the best case scenario?
General Hemingway. That's correct.
Senator Graham. What is the worst case scenario?
General Hemingway. That we'd be delayed pending a Supreme
Court decision.
Senator Graham. How long will that be?
General Hemingway. Your guess is as good as mine, Senator.
Senator Graham. I understand, General.
All right. Enemy combatant status. It's my understanding
that a Federal Court has reviewed the enemy combatant status
procedure and found fault, is that correct? There's a District
Court decision on that, is that right?
General Hemingway. Judge Green.
Senator Graham. How long will it take for that to work its
way through the legal system?
General Hemingway. It's my understanding that's scheduled
for argument October 6, 2005.
Senator Graham. What level of Federal Court are we in now?
Judge Green is a District Court judge?
General Hemingway. That's correct.
Senator Graham. All right. You would imagine if we lost we
would appeal, and I'm saying we, I'm on the home team here. If
the other side lost, I imagine they would appeal, is that
correct?
General Hemingway. That's correct.
Senator Graham. It goes to the appellate court system. I
would imagine the same scenario. The bottom line is, a
reasonable view of the legal situation we currently find
ourselves in at Guantanamo Bay regarding prosecution ability
and enemy combatant status, it looks a long time before we get
this resolved under the current model. I believe we could bring
it to closure much quicker through statutory definitions and
involvement. That is the point of this hearing from my
perspective.
The administration, like every administration, is probably
reluctant to cede anything, but as Senator Levin works his way
back, the war is beyond military engagement. It is a
combination of forces, military engagement being one of them.
We need buy-in to win this war, gentlemen. We don't need to be
up here arguing with ourselves all the time. We don't need to
be looking back. I do believe there is a window of opportunity
here, where we can come together as a Congress and an
administration and give definition and certainty to the
concepts at Gitmo which are legitimate and protect this
country.
If we continue to resist adjusting, if we have to wait
months for memos that show the good side, not the bad side, we
are hurting ourselves. This may be above your pay grades, but I
wanted you to hear that from me. We are missing a golden
opportunity, gentlemen, to get this war on a legal track that
will allow us to take it to this enemy, and we can't afford any
more political fights than we already have on our hands. With
that, I'll recognize Senator McCain.
Senator McCain. Thank you. Mr. Dell'Orto, under DOD rules
for the military commissions defendants will lack an
independent appeal. They can appeal up the chain of command
within DOD, but not to U.S. Federal Courts or to the U.S. Court
of Appeals. What is the rationale behind that decision?
Mr. Dell'Orto. Sir, military commissions are function of
the President's commander and chief authority as authorized by
Congress. As such, they are his war powers; and it's
appropriate to keep the entire process of military commissions
within the executive branch for the purposes of that review.
Senator McCain. These are classified as military
combatants, the prisoners in Guantanamo, is that right?
Mr. Dell'Orto. Enemy combatants, Senator.
Senator McCain. Enemy combatants. The definition of enemy
combatant is that the Geneva Conventions are applicable or not
applicable? You can leave it on for a minute. We are going to
have a little exchange here, Mr. Dell'Orto.
Mr. Dell'Orto. For purposes of detainees at Guantanamo.
Senator McCain. Yes.
Mr. Dell'Orto. Those who are detained pursuant to the war
on terrorism. I'm keeping Iraq completely aside.
Senator McCain. Well, yes. In other words, those captured
in Afghanistan, which is the population of Guantanamo. The
reason I keep focusing on Guantanamo is because the public is
focusing and the media is focusing on Guantanamo. Go ahead,
please.
Mr. Dell'Orto. They are determined to be enemy combatants
captured on the battlefield. Given the way, either their lack
of nation state organization, if you will----
Senator McCain. But they were in a nation that was governed
by the Taliban, as horrible as that government may have been.
Mr. Dell'Orto. Now let me make the distinction between the
two categories, Senator. For al Qaeda, not part of any nation
state, not part of any government--
Senator McCain. How do you separate the Taliban from al
Qaeda?
Mr. Dell'Orto. The al Qaeda have their own agenda. They are
not operating on behalf of the Afghan Government. Their agenda
goes back quite some time before the Taliban.
Senator McCain. Al Qaeda and the Taliban didn't work hand
and glove in Afghanistan?
Mr. Dell'Orto. I believe they did to advance particularly
the al Qaeda's interest.
Senator McCain. So you capture somebody on the battlefield
and he says to you, ``I'm al Qaeda'' or ``I'm part of the
Taliban,'' is that how you differentiate?
Mr. Dell'Orto. You sort them out based upon the fact that
they were bearing arms on the battlefield, you police them up,
and you then begin your process of interrogation.
Senator McCain. They're on the battlefield, they are
captured. You see one guy and you say okay, you're part of the
Taliban army and you, you are part of al Qaeda. There are two
different methods of treatment, is that correct? Is that what
you're saying?
Mr. Dell'Orto. You receive the same treatment, but you get
to that point through slightly different analysis.
Senator McCain. So you determine that someone is Taliban,
which was the government, either legitimate or illegitimate, of
Afghanistan. Are they eligible for the treatment under the
Geneva Conventions?
Mr. Dell'Orto. Taliban are not.
Senator McCain. Taliban are not.
Mr. Dell'Orto. Correct.
Senator McCain. On what basis was that decision made?
Mr. Dell'Orto. The President made that determination based
upon the following analysis. The government of Afghanistan as
you point out was a signatory to the Geneva Conventions.
The Taliban is, as that government at the point in time
when hostilities commenced, operated its, its armed forces if
you will, in a way that was inconsistent with the way that
lawful combatants operate. They didn't wear uniforms, didn't
wear insignia, didn't answer to a responsible chain of command,
did not conduct themselves in terms of how they targeted people
consistent with the laws of armed conflict, the laws of war. It
was consistent across the board. It wasn't some who did and
some who didn't. A determination was made they did not qualify
for the protections of Geneva through the Geneva Conventions
analysis.
Senator McCain. That analysis is not agreed to by most
international organizations. Was North Vietnam a signatory to
the Geneva Conventions? Do you know?
Mr. Dell'Orto. I don't recall, Senator.
Senator McCain. I don't believe they were. What happens
next time we're in a conflict and an American not in uniform on
some kind of clandestine operation, such as our people were on
in Afghanistan in civilian clothes, is captured? What kind of
protections do you think that an American service man or woman
is going to get?
Mr. Dell'Orto. I would have to----
Senator McCain. I think we know, Mr. Dell'Orto, I think we
know. That's what I worry about. I worry about what happens to
the next American that is captured in a conflict and if that
conflict is with a nation that's a nonsignatory to the Geneva
Conventions, and I think that Congress has to step in here and
at least give some kind of regularized procedures for the
treatment of prisoners, which is not clear in the minds of many
numbers of Congress. We do have that obligation under the
Constitution of the United States.
My time has expired. I hoped there would be another round
because I'd be interested in the views of some of our other
witnesses here. Maybe Admiral McPherson, just off the top of
your head, what do you have to say about what I've had to say?
Go ahead.
Admiral McPherson. The bottom line whether they're
recognized as falling within the Geneva Conventions is you must
treat them humanely. Our President has said----
Senator McCain. What is the definition of humanely? Is it
in the eye of the beholder? If you had a North Vietnamese
interrogator right here today, he'd tell you that we were
treated very humanely in the North Vietnamese prison camps.
Admiral McPherson. We have a definition of humane.
Senator McCain. So did they.
Admiral McPherson. I understand that, sir. But for us, that
definition is in concrete. That's what we apply to our
prisoners in Guantanamo. We treat them humanely.
Senator McCain. We do.
Admiral McPherson. Yes, sir.
Senator McCain. How about use of dogs, is that humane?
Admiral McPherson. There are differences of opinion, as
Senator Graham----
Senator McCain. Not according to the Geneva Conventions,
there's not differences of opinion.
Admiral McPherson. There are differences of opinion with
regard to stress factors for purposes of interrogation. There
will always be those differences of opinion.
Senator McCain. Who judges that, what the stress factors
are, Admiral? The person there that's doing the interrogating?
Admiral McPherson. Well, I think the chain of command
judges that, sir.
Senator McCain. How do they know what is going on? If there
is a dog there, how do they know that the dog is sitting over
in the corner, or behaving as we saw in the pictures of Abu
Ghraib?
Admiral McPherson. Abu Ghraib was a breakdown in the chain
of command, Senator.
Senator McCain. It certainly was. It certainly was,
Admiral. That's maybe the first statement that you and I have
agreed with in our exchange here. Senator Levin.
Senator Levin. Thank you, Mr. Chairman. In your judgment,
are the following practices humane? A detainee subjected to
wear a leash, to do dog tricks, to wear women's lingerie, to
appear naked in front of a woman interrogator, are those humane
techniques?
Admiral McPherson. I don't know whether they're humane or
not. When I heard that those were occurring, the first thing
that came to my mind is they were awfully juvenile, they were
almost like fraternity tricks.
Senator Levin. No, the question is, are they authorized
under the manual?
Admiral McPherson. Under the field manual?
Senator Levin. Yes.
Admiral McPherson. I don't know if they are or not, sir. I
would have to look.
Senator Levin. Okay.
Admiral McPherson. But again, differences----
Senator Levin. I've asked you whether in your judgment
those were humane tactics, and you said you said humane is in
concrete. The definition is in concrete.
Admiral McPherson. I don't think that's inhumane treatment.
No sir, I don't.
Senator Levin. All right, thank you. General Romig, would
you consider those tactics to be consistent with Geneva?
General Romig. Sir, they are not consistent with the Geneva
Conventions. But as I understand----
Senator Levin. They are?
General Romig. Are not. Are not consistent with Geneva
Conventions. But we are talking about Guantanamo where the
Geneva Conventions did not apply. But in Iraq they would be
violations of the Geneva Conventions.
Senator Levin. All right. In your judgment would they be
violations therefore of the Army field manual?
General Romig. Sir, the Army field manual is merely
guidance. It's not a regulatory manual and there is a lot of
flexibility in that field manual, as you well know, sir. So,
they're certainly not within the spirit of field manual but
what they are violations of, or could be violations of, is the
UCMJ.
Senator Levin. Do you believe that those techniques are
consistent with the field manual? Thirty four----
General Romig. Fifty two, yes, sir. Consistent with, I
think I would have to know a little bit more about it. At first
blush, I would say no, but I think I would have to know a
little bit more about the interrogation plan and what the
intent was and how it was being administered and all of that.
Senator Levin. All right. So you're saying that your first
reaction would be no, but you'd like to know more details?
General Romig. Yes, sir.
Senator Levin. Do you know the way in which those were used
at Guantanamo?
General Romig. Sir, I do not. The----
Senator Levin. That's fair enough.
General Romig. The field manual, if I may just add, is
directed towards the Geneva Conventions.
Senator Levin. I understand that, and that's why I'm asking
you whether or not those techniques could be consistent with
Geneva. Your first answer it doesn't look to you like they are,
but you'd like to know more?
General Romig. Absolutely. Yes, sir.
Senator Levin. Let me try General Rives. In your opinion,
are those techniques consistent with Geneva? Would we like to
see our POWs treated that way?
General Rives. No, Senator. We would not.
Senator Levin. Okay. Is Geneva supposed to apply to our
POWs?
General Rives. It does, Senator.
Senator Levin. So I'm not asking you about Guantanamo yet.
I will get to that in a moment. I'm asking about the field
manual, which is supposed to be consistent with Geneva.
So we don't want to see our POWs treated that way. General
Rives, do you believe those techniques are consistent with
Geneva?
General Rives. I personally do not, Senator. The law
provides outer limits of what is acceptable. Policies typically
are well within those outer limits. We train people both on
what law permits but especially for the junior people who will
enforcing these, we try to give them effective training on what
is admissible under the law. Under the normal Geneva categories
people are well aware of what the standards are.
Senator Levin. In your personal judgment those specific
practices are not consistent with Geneva?
General Rives. That's correct, Senator.
Senator Levin. Yesterday, I just want to let you all know,
we were told at our full committee hearing that those practices
are being utilized to implement U.S. Army field manual 34-52,
which is consistent with Geneva. In your judgment, General
Rives, that could not be the case, because they are not
consistent with Geneva.
I just want to let you know what we heard yesterday, folks,
because what we heard yesterday to me was pretty shocking.
Putting aside the specifics on a case or two, what we were told
yesterday was that in the judgment of the witnesses, that there
are two parts of the field manual 34-52, one called fear down
and the other called ego--one called fear up and the other one
called ego down. That those practices were implementing those
two general categories in a field manual.
That's what I think is so dangerous to our troops. Once you
can say that those specific practices which we heard about,
really for the first time, at Guantanamo are ways of
implementing our field manual since, our field manual must be
consistent with Geneva, our troops are in danger. That's a
threat. It's not just to our values, although that's important.
It's to our troops. I would just hope that particularly our
JAGs, whom we rely on so heavily, would really take a look at
that testimony yesterday. I would even ask that you give us
your opinion on it.
Now let me ask our JAGs who participated in the working
group, and I understand that Generals Romig, Sandkuhler, and
Rives were in that working group. I believe you were asked by
Senator Graham, relative to your opinion at the time relative
to the memo which was--the Church report, and here I'm talking
about the March 13, 2003, memo.
The Church report states the following: that that memo,
which we are awaiting a copy of, states that the substance of
that memo was virtually identical to the Office of Legal
Counsel's August 1, 2002, so-called ``torture memo,'' which was
later disavowed by the administration. So you have the March
13, 2003, memo from you to Haynes, according to the Church
report, being based, or virtually identical on that earlier
August 1 memo.
My question would be to the three JAGs who are present at
the working group. I want to read to you from the August 2002
memo, first of all, and ask you whether or not you believe that
what I'm going to read to you is consistent with either our own
values or what standards we were supposed to be following:
Physical pain amounting to torture was equivalent in intensity
to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function or even death.
Now, let me just ask the three JAGs, was that language
discussed in the working group? Maybe General Romig, do you
remember that?
General Romig. Sir, I am not positive, but I think that
language, it was a whole spectrum of things that were
discussed. That language may have been discussed. We wrote
memos back that have not been declassified yet laying out in
very strong terms our opinion on some of these things.
Senator Levin. Right. I'm going to get to that in a moment,
but for the time being, do you believe that that description of
what must be inflicted in order for the torture to be the
characterization, do you believe that is an acceptable
definition, in your judgment?
General Romig. No, sir. I do not.
General Sandkuhler. I agree with General Romig.
Admiral McPherson. I don't agree.
Senator Levin. General Rives?
General Rives. I also agree with General Romig.
Senator Levin. You agree with General Romig.
Now going to the working group, I'm a lawyer; and I can't
tell you how much we rely on all of you to give us both a
system that's effective, and efficient, and that's workable,
achieves its goal obtaining of information and treating people
humanely, but also doing it in a way which is not only
consistent with our values but will protect our troops.
If the same techniques are used against us so that we have
standing, to not only object, but to act against anybody who
treats our troops with these kind of techniques, that's the
issue here. Our troops are looking at us. They're looking at us
to see whether or not we are going to adopt a standard which
they, if they are captured, would find acceptable or whether
they would expect us as a nation to come in to their defense
and to take action to extricate them, from capture.
Now the Church report. I want to go back to the Church
report. The Church report said the working group expressed a
great deal of disagreement with the legal analysis contained in
the March 14, 2003, memo. I understand that there were some
things you agreed with, and that were modified, and some you
continued to disagree with that remained. First, General Romig,
where did you continue to disagree? What specific techniques
were left that you disagreed with?
General Romig. Sir, I think going into specific techniques
are still classified. I will say this, though, I never did see
the final report because shortly after that, the Secretary of
Defense published another memo that was much more constricted
than the scope of things we were looking at.
Senator Levin. More constricted than the March 13, 2003,
report?
General Romig. I believe so. Yes, sir.
Senator Levin. You're referring to an April 2003 policy
report?
Mr. Dell'Orto. Senator, can I provide some context for
this?
Senator Levin. If you don't mind, just to make sure I
understand first what the generals say.
General Romig. Sir, I don't remember the exact date of the
memo.
Senator Levin. All right. Okay. Now, Mr. Dell'Orto, we
know--would you supply to us on a classified basis the memos
that you wrote which disagreed with the conclusions of the
working group.
Mr. Dell'Orto. Senator, the committee has those memos.
Senator Levin. We have the memos where the members of the
working group expressed disagreement specifically with the
outcome of the working group?
Mr. Dell'Orto. You have memos from each of the then-sitting
judge advocates general, and the staff judge advocates of the
commandant, expressing their views on a draft of the working
group report that was dated approximately February 6, 2003.
Senator Levin. All right. So that's what the Chairman here
asked that we be furnished in a declassified way, is that
correct?
Mr. Dell'Orto. Yes, Senator.
Senator Levin. Mr. Dell'Orto, that's where you said that
will happen?
Mr. Dell'Orto. We expect that it will. But as I pointed out
to Senator Graham, and I don't know that you were here, sir, we
continue to consider the arguments that were in there quite
candid and the types of arguments that we don't necessarily
need to have out in the public domain.
Senator Levin. All right.
Mr. Dell'Orto. Because they are deliberative.
Senator Levin. Now on the two documents that I've been
pressing for; my time is up, so I'll end here. I don't believe
these are on the list the chairman referred to. The March 13,
2003, memo from the Assistant Attorney General John Yoo to
Haynes. Are we going to get that document, classified or
otherwise?
Mr. Dell'Orto. Sir, as I indicated earlier, that remains
under review at this point in time.
Senator Levin. Well, how long is that going to remain under
review? I don't know how long I've been asking for this
document.
Mr. Dell'Orto. You'll probably hear something from me early
next week.
Senator Levin. Okay. I would hope, Mr. Chairman, that if we
can't get a document which was in effect for at least a year,
minimum----
Mr. Dell'Orto. Less than a year. In effect from March 2003
until December 2003 for the purposes of reliance.
Senator Levin. All right, and then not formally rescinded
until this year, is that correct?
Mr. Dell'Orto. That's correct, sir.
Senator Levin. If we can't get that document, I don't know
what it is that the Senate or the U.S. Congress can get. I
mean, this is directly relevant to our inquiry. This isn't
working documents, this isn't opinions of lawyers. I understand
all the sensitivities there. This is a document which set forth
techniques which were allowed, is that correct?
Mr. Dell'Orto. Sir, it was a legal opinion that set forth
broad legal analysis, not specific techniques.
Senator Levin. This was binding, is that correct?
Mr. Dell'Orto. Yes, sir.
Senator Levin. Okay. So we had a binding legal opinion that
was operative for 6 months, not rescinded until 2 years or so
later. Mr. Chairman, and I'm going to reiterate this, I would
hope every member of the U.S. Senate, I don't care what their
position is on various issues which we have to struggle with,
on this issue, on access to that type of document, it seems to
me it must be absolute. It must be something Senators of
varying opinions would insist upon. I would add to that the
document, the other document which I made reference to which is
the August, the second Bybee memo, you know the memo I refer to
here.
Mr. Dell'Orto. Sir, not specifically.
Senator Levin. Okay, I'll be very specific here. There was
a so-called second Bybee memo, which came out around the time
of the August 1, 2002, memo, it's called the second Bybee memo.
It's in my letter to you. So if you're going to give me an
answer on the other one in the next week, and I would say give
it to this committee, because I think there are a lot of other
members of the committee, and I hope the chairman, who feel
just as strongly as I do. I won't speak for Senator Graham,
he's here. But Senator Warner and his staff have attempted to
get these documents orally. I know that much. So can we get the
answer on both memos next week, Mr. Dell'Orto?
[The information referred to follows:]
I have not seen a ``second'' memorandum signed by Mr. Bybee and
dated in the early August 2002 time period. I respectfully suggest that
the request for such a memorandum be made to the Department of Justice.
Mr. Dell'Orto. I'll do my best.
Senator Levin. Thank you. Thank you, Mr. Chairman.
Senator Graham. I echo what you said, Senator Levin. I find
myself in the same camp and would like the information.
Senator McCain has a few follow-up questions. I apologize
for keeping you here for 2 hours. It's just been a very
difficult way to conduct a hearing. But until he gets back, we
have looked backward, we talked about friction points. We
talked about input from judge advocates. I think it would be
good for the Nation to know what that input was. I understand
your concerns about dialogue and disclosing dialogue, but the
bottom line is things were changed eventually.
I would like to ask each judge advocate now, in the current
situation, do you feel better about our legal attitudes and
responses to interrogation techniques, and the structures at
Guantanamo Bay? Have we improved? How do you feel today?
General Romig. Sir, you're talking about limiting it
exclusively to Guantanamo Bay? I think----
Senator Graham. Overall.
General Romig. I think it's much better. I think there is
more focus on it. I think there has been reviews at all levels.
We have revised training. There has been much reference to 34-
52, the field manual, that's being revised and will be out
fairly soon. There have been a number of things done to bring
the focus back where it should have been, and I think we are in
much better shape.
Admiral McPherson. I would agree. I feel much better with
the interrogation techniques and the guidance that's provided,
and the oversight that is provided.
Senator Graham. One of your original concerns is that we
have a body of law in the military and it has, any
interrogation procedure has to be evaluated in terms of what we
require of our troops under the UCMJ. You don't want to go down
one road and put somebody in legal trouble because of another
legal path. You feel that we have kind of reconciled those
concepts?
Admiral McPherson. I think we have. But I harken back to
the words you spoke earlier, concerning stress, both physical
and psychological in conjunction with interrogation techniques.
I can't help but think that one person's stress position is
another person's inhumane treatment.
Senator Graham. Right. It's a hard concept, but we have a
body of law and we have 60 years of it, we have the Army field
manual, and we have a lot of things to draw upon. As I
understand it, your concerns were that when you drew upon what
was in the past, the proposed future route did not reconcile
itself well with the past. That we were taking a kind of a
legal detour with no real understanding where it would take us,
and that was your objection basically, right?
Admiral McPherson. I think you're right, yes, sir.
Senator Graham. From the Marines' point of view, are we
doing better, sir?
General Sandkuhler. Sir, I think we are doing well overall.
If you look at the big broad topic of detainee operations on
the battlefield today, we are much more in tune to make sure we
have trained all our forces and we do that on a continuous
basis. We have judge advocates with each battalion that are
deployed in Iraq to provide the legal services necessary to be
able to take care of detainee operations. They can go from
claims to detainee operations to the law of war question in a
flash, and we have people to do that.
We continue our training and the emphasis for young judge
advocates especially is to understand how it all works, and how
our values are involved with the way we handle and interact
with prisoners on the battlefield. I feel much more confident
now across the force, than if you would have asked me when we
first started this adventure.
Senator Graham. Well, that shows that we are improving and
we're adjusting because the war is, on an easy day it's hard,
because there is so many new things going on here, and the fact
that we have to adjust, and we look back and say that's not
quite right; it's not a slam on anyone. It's the sign of a
great nation. It's not the sign of a weak nation. General
Rives, how do you feel?
General Rives. General, we are certainly much more
sensitive to the issues and that has helped. Beginning with the
publicity that attended the horrors of Abu Ghraib, we realized
this is not for closed door meetings, but it is something we
have to get the right control over. We have continued to
emphasize this training both to new judge advocates and more
experienced judge advocates. Every Air Force JAG who deploys
gets specific training on this just before deploying, as well
as other broader, continuing training we do.
One of the current initiatives that has been true since
December 2004 is the Joint Staff Deputy Director of War On
Terrorism has created a Detainee Senior Leadership Oversight
Council, and we participate in those monthly meetings. So that
helps keep the spotlight on this issue as well.
Senator Graham. General Hemingway, we are going recess for
about 5 or 10 minutes. Senator McCain will come back and finish
his line of questioning. Then we will allow the panel to go and
you can take a comfort break here.
When we come back, be prepared to tell us a little bit
about, without disclosing classified information, the type
people we have at Guantanamo Bay. There is a reason we want to
prosecute them. If you could maybe share that with us for a
minute or two here before I leave?
General Hemingway. Senator, I think that the charges that
we have pending currently are an accurate reflection. We have
people charged with conspiracy to violate the law of war by
conspiring to kill civilians, by attempting to murder. These
are unprivileged belligerents who are alleged to have committed
these acts. I think that gives the public some idea of the kind
of individual we are facing within the group that we have at
Guantanamo.
Senator Graham. That's why I really want to move forward as
quickly as I can with prosecution to let the public know that
we are fighting and winning this war, and the type people we
are dealing with, and let future recruits know what comes your
way if you get captured. Long prison terms, maybe even death,
in accordance with the rule of law. With that we'll adjourn and
reconvene just in a few minutes. Thank you very much. [Recess.]
I just want to, for the record, thank the panel for coming.
You can go back to work now. You have been an invaluable asset
to this committee. I appreciate your service to our country. I
know most of you personally, and I am very proud of our
military legal community and I could not be more proud to have
been a member of the JAG Corps, and currently am. You have
acquitted yourselves well. Thank you very much, Mr. Dell'Orto.
Senator Nelson, if it's all okay, we'll go on to the next
panel.
Senator Ben Nelson. That's fine with me. I want to thank
you all. I know there are lots of challenges to try to sort out
some of the ideas that have been thrown out today. We
appreciate your effort and we will also appreciate any
continuing advice and counsel that you might be able to provide
us.
Senator Graham. Thank you. We'll have the next panel. Thank
you. [Recess.]
Thank you all for being patient. I apologize. The Senate on
a good day is a hard place to run. We have had five back to
back votes, and you have been very patient. Our first panel was
terrific. Thank you all for coming and helping this committee
with a very difficult series of decisions to make. You are all
well-known and respected. Senator Nelson, would you like to----
Senator Ben Nelson. No, Mr. Chairman, I think we would like
to go right to the panel. Thank you very much. I do want to
thank the panel, though.
Senator Graham. Mr. Barr.
STATEMENT OF HON. WILLIAM P. BARR, FORMER ATTORNEY GENERAL OF
THE UNITED STATES
Mr. Barr. Thank you, Mr. Chairman. Let me say that I think
your opening statement was one of the most cogent explanations
of where we are and I really agree with everything you said. I
think the administration's policies are justified and lawful
and that they are fully in accord with the law of war, and I
think frankly, Senator, the thing that makes it appear messy is
not because of anything the administration or our military is
doing. I think the really----
Senator Graham. Could I interrupt here? I don't mean messy
as a blame term. It's just a legal situation that's hard to
deal with, no one is at fault. I think we did a good job
defining enemy combatant status and military tribunals but the
courts are now in play. What has made it messy is habeas and is
the worst way imaginable in my opinion to deal with the legal
problems that we face. I just wanted to interject that it's not
because anybody did anything wrong. It's just the nature of the
legal situation we find ourselves in.
Mr. Barr. That's right, and you made that clear, Senator. I
fully agree with that. I think the confusion arises from
several different sources. One is the tendency for people at
large, and for judges, to confuse war with, law enforcement
activities which are totally different from a constitutional
standpoint. Another is, I think we would all recognize that
over the past 30 years there has been expansion of judicial
power. Judges are more and more willing to try to sort of
second-guess and make decisions that heretofore they have
relied on accountable political officials to make. That's now
carrying over into the war area, unfortunately. I think there's
also been, since Watergate, a depreciation of the importance of
executive power. Executive power to our framers really meant
something, they viewed it as a distinctive kind of power to
deal with exigent circumstances that really weren't amenable to
setting all the rules out in advance, which is what the
legislature does, or through the judicial method, which is to
try to apply absolute objective standards and then weigh the
evidence to see whether something is in or out.
Now, in our war, as opposed to our law enforcement, there
are two important attributes that I think we have to recognize.
One is it that it is subject to the laws of war, and the other
is that fundamental decisions that have to be made in war are
executive in nature. The framers did not give the commander in
chief authority to the President because they played enie-
meanie-miney-mo or flipped a coin; they felt that the
President, that the executive, had to make the kinds of
decisions that came up, who was to be approached as the enemy,
what force was to be--yes.
Senator McCain. The Constitution says very clearly, ``to
declare war, grant letters of marque and reprisal and make
rules concerning captures on land and water.'' So I don't
understand your logic there, that it's all up to the executive.
Mr. Barr. No, I'm saying that the executive is the
Commander in Chief.
Senator McCain. The executive is Commander in Chief, but
the Constitution says Congress shall make rules concerning
captures on land and water.
Mr. Barr. Okay, well, let's discuss that provision,
Senator.
Senator McCain. Let's discuss it. Yes.
Mr. Barr. In the 18th century and at the time of the
framing of the Constitution there was a concept that when a
state of war existed, all the citizens of the two communities
could engage in hostilities against each other, willy-nilly,
and the concern was under international law and the evolution
of that law was the countries should give specific license to
who was going to wage combat on behalf of a society through
regular means. That's why reprisals, letters of marque and
making the rules governing captures were established. It was
who is going to fight on behalf of the Republic. That's what
that provision deals with. But you don't find many statutes to
try to anticipate in advance and set forth in codification how
we are going to fight a particular war. That's the point I'm
making. It's very hard to make these rules in a statutory
straitjacket, that sort of says how we're going to fight or
define with precision every category.
Turning to the situation in Guantanamo, these are people
being held as detainees. There is no due process requirement as
far as foreign persons are concerned to have adversary hearings
to determine whether someone is or is not a detainee. However,
in this case, because of the nature of this war, we have
provided these individuals with more process than any set of
prisoners in wartime has ever received, through annual reviews,
through multilevel battlefield and theater reviews, and now
through CSRT, which is a hearing procedure.
Senator McCain. Not one is going to be tried.
Mr. Barr. Excuse me?
Senator McCain. Not one is going to trial.
Mr. Barr. I'm sympathetic with the notion we should start
trying these people. But the fact of the matter is from a legal
standpoint, we did catch Hess in 1939, I believe; we tried him
in 1946. If people are being held as detainees, there is no
immediate need to try them for war crimes if they are detained
anyway as detainees. Now, I think it's largely a prudential
judgment as to when we bring charges against these people and
I'm sympathetic to the notion we that should proceed with that.
I'd like to get a little bit into this issue. I'd like to
open up a can of worms and get into this issue of
interrogation. Because we frequently hear a lot of people
criticize the administration, but it seems to me that when an
enemy is operating as these people are, they are committing two
horrific crimes against humanity.
One is they are disguising themselves as civilians and
hiding out among civilians. That in itself is an atrocity,
because it increases the vulnerability of civilians, and
because you have to sort out who is the enemy and who isn't.
Second, they are carrying out deliberate attacks against
civilians. So these are two grave crimes.
When you are fighting that kind of an enemy, as opposed to
enemy that is fighting by the laws of war, it seems to me
critical and a moral imperative that you take every step you
can to figure out who is the enemy and who isn't the enemy. I
don't know of any organization like this that has ever been
counteracted without that coercive interrogation, by capturing
an individual and then figuring out who else is involved and
who they're reporting to and who else is in the cell. This is
really the main intelligence means you have of defeating an
organization like this.
Now, I can understand if someone wants to say there is no
right to coercive interrogation. I disagree with that as a
moral matter, but I have not heard the critics saying that. If
you can use coercion in interrogation, the question is where
you draw the line. This administration says they're not going
to engage in torture, but they will engage in coercive
interrogation, and I'm not sure if it would be helpful for
Congress to try to figure out what exactly constitutes torture
and what's coercion under the circumstances.
Finally, let me just say I'm not sure the definition of
enemy combatant is really the problem here. Like any rule that
deals with a complicated area, it has to be necessarily framed
in general terms and applied to meet the circumstances. You
said, Mr. Chairman, at the beginning, war is fluid; the enemy
adapts; we have to adapt. Now we are dealing with an enemy that
is consciously trying to avoid these categories and organize
themselves in a way, not only to avoid detection, but so they
have cover stories for whatever they do. So, there are some
areas like fraud, for example, where we prohibit fraud. Fraud
is a general term. It's very hard to codify that and think of
all the instances that could be considered fraud, and I think
the definition of combatant is that kind of definition and it
has two components. One, you are either part of the armed force
of the enemy or you are providing direct support to the
military operations, or hostilities and normally, when you are
fighting an army that's a regular army, that's easy to discern.
But when you are fighting a guerrilla army it is sometimes
hard. I'm worried that if we try to codify, and think of all
the different instances where someone could be providing that
kind of support, we'll leave things out, or we'll create
mischief.
So those are some opening thoughts, Mr. Chairman, I'd be
glad to answer any questions you have.
[The prepared statement of Attorney General Barr follows:]
Prepared Statement by William P. Barr
Mr. Chairman, and members of the subcommittee, I am pleased to
provide my views on the important issues surrounding our response as a
Nation to attacks against our homeland and the continuing national
security threat posed by al Qaeda. By way of background, I have
previously served as Assistant Attorney General for the Office of Legal
Counsel, the Deputy Attorney General, and the Attorney General of the
United States. I have also served on the White House staff and at the
Central Intelligence Agency (CIA). The views I express today are my
own.
My remarks today focus on the detention of foreign enemy combatants
captured during our military campaign against the Taliban and al Qaeda
and, specifically, on the adequacy of the procedures governing their
continued detention as enemy combatants and, in the cases of some
detainees, their prosecution before military commissions for violations
of the laws of war.
In my view, the criticisms of the administration's detention
policies are without substance. The administration's detention measures
are squarely in accord with the time-honored principles of the law of
war and supported by over 230 years of unbroken legal and historical
precedent.
It is important to understand that the United States is taking
three different levels of action with respect to the detainees. These
are frequently confused in the popular media.
First, as a threshold matter, the United States is detaining all
these individuals simply by virtue of their status as enemy combatants.
It is well established under the laws of war that enemy forces are
subject to capture and detention, not as a form of punishment, but to
incapacitate the enemy by eliminating their forces from the
battlefield. Captured enemy forces are normally detained for as long as
the enemy continues the fight.
The determination that a particular foreign person seized on the
battlefield is an enemy combatant has always been recognized as a
matter committed to the sound judgment of the Commander in Chief and
his military forces. There has never been a requirement that our
military engage in evidentiary proceedings to establish that each
individual captured is, in fact, an enemy combatant. Nevertheless, in
the case of the detainees at Guantanamo, the Deputy Secretary of
Defense and the Secretary of the Navy have established Combatant Status
Review Tribunals (CSRTs) to permit each detainee a fact-based review of
whether they are properly classified as enemy combatants and an
opportunity to contest such designation.
As to the detention of enemy combatants, World War II provides a
dramatic example. During that war, we held hundreds of thousands of
German and Italian prisoners in detention camps within the United
States. These foreign prisoners were not charged with anything; they
were not entitled to lawyers; they were not given access to U.S.
courts; and the American military was not required to engage in
evidentiary proceedings to establish that each was a combatant. They
were held until victory was achieved, at which time they were
repatriated. The detainees at Guantanamo are being held under the same
principles, except, unlike the Germans and Italians, they are actually
being afforded an opportunity to contest their designation as enemy
combatants.
Second, once hostile forces are captured, the subsidiary question
arises whether they belonged to an Armed Force covered by the
protections of the Geneva Conventions and hence entitled to prisoner of
war (POW) status? If the answer is yes, then the captives are held as
prisoners of war entitled to be treated in accord with the various
``privileges'' of the Convention. If the answer is no, then the
captives are held under humane conditions according to the common law
of war, though not covered by the various requirements of the
Convention. The threshold determination in deciding whether the
Convention applies is a ``group'' decision, not an individualized
decision. The question is whether the military formation to which the
detainee belonged was covered by the Convention. This requires that the
military force be that of a signatory power and that it also comply
with the basic requirements of Article 4 of the Treaty, e.g., the
militia must wear distinguishing uniforms, retain a military command
structure, and so forth. Here, the President determined that neither al
Qaeda nor Taliban forces qualified under the Treaty, and he was
obviously correct in that decision.
The third kind of action we are taking goes beyond simply holding
an individual as an enemy combatant. It applies so far only to a subset
of the detainees and is punitive in nature. In some cases, we are
taking the further step of charging an individual with violations of
the laws of war. This involves individualized findings of guilt.
Throughout our history we have used military tribunals to try enemy
forces accused of engaging in war crimes. These tribunals are
sanctioned by the laws of war. Shortly after the attacks of September
11, the President established military commissions to address war
crimes committed by members of al Qaeda and their Taliban supporters.
Again, our experience in World War II provides a useful analog.
While the vast majority of Axis prisoners were simply held as enemy
combatants, military commissions were convened at various times during
the war, and in its immediate aftermath, to try particular Axis
prisoners for war crimes. One notorious example was the massacre of
American troops at Malmedy during the Battle of the Bulge. The German
troops responsible for these violations were tried before military
courts.
I would like to address each of these matters, but before doing so
I would like to discuss briefly the legal and Constitutional framework
that governs our activities.
I. THE CONSTITUTIONAL FRAMEWORK
Most of the carping and criticism I have heard over the
administration's policies are based on a completely false premise--that
our operations against al Qaeda are in the nature of law enforcement
activities and therefore that, when our forces seize someone, the
government is subject to all the constraints, process-requirements and
rules that apply in the criminal justice context. This is a dangerous
misconception. This is not ``Hawaii Five-0.'' We are not ``booking
them, Danno.'' This is a war--not in a figurative, but in a very
literal, real sense. We are in an armed conflict with foreign enemy
forces who are trying to kill us.
There is a clear and critical distinction between the role the
government plays when it is enforcing our domestic laws against members
of our body politic, and the role it plays when it is defending the
body politic from armed assault by an external enemy. This distinction
is critically important because the scope of the government's power and
the restrictions we place on the government differ fundamentally
depending on which function the government is performing.
When the government enforces law within the community by seeking to
discipline an errant member, the Constitution is concerned with
dividing, diluting, and weakening the government, which it does both by
hemming it in with restrictions and by investing those against whom it
is acting with ``rights''--creating, in a sense, a level playing field
as between the government and the individuals it is seeking to
discipline. But when the government is defending the community against
armed attacks by a foreign enemy, the Constitution seeks to unify and
strengthen the power of the government. It does not grant rights to our
foreign enemies. It is concerned with one thing--preserving the freedom
of our political community by destroying the external threat.
To gain a better appreciation of this dichotomy, it is useful to
``go back to basics.'' What is a Constitution? It is the fundamental
agreement by which a certain people bind themselves together as a
separate and distinct political community. It sets forth the internal
rules by which the particular body politic will govern itself. Our
Constitution was not written to govern the world as a whole. It was
written for ``the people''--the American people
There were two chief reasons why the American people decided to
establish a Federal Government--to ``ensure domestic Tranquillity'' and
to ``provide for the common defence.'' To achieve the first purpose,
the Federal Government is given its domestic law enforcement functions;
to achieve the second purpose, the Federal Government is given its
warfighting or national defense powers.
When the government acts in its law enforcement capacity, the
government's role is disciplinary. It preserves ``domestic
Tranquillity'' by punishing an errant member of society for
transgressing the internal rules of the body politic. However, the
Framers recognized that in the name of maintaining domestic order an
overzealous government could oppress the very body politic it is meant
to protect. The government itself could become an oppressor of ``the
people.''
Thus our Constitution makes the fundamental decision to sacrifice
efficiency in the realm of law enforcement by guaranteeing that no
punishment can be meted out in the absence of virtual certainty of
individual guilt. Both the original Constitution and the Bill of Rights
contain a number of specific constraints on the executive's law
enforcement powers, many of which expressly provide for a judicial role
as a neutral arbiter or ``check'' on executive power. In this realm,
the executive's subjective judgments are irrelevant; it must gather and
present objective evidence of guilt satisfying specific constitutional
standards at each stage of a criminal proceeding. The underlying
premise in this realm is that it is better for society to suffer the
cost of the guilty going free than mistakenly to deprive an innocent
person of life or liberty.
The situation is entirely different in armed conflict where the
entire nation faces an external threat. In armed conflict, the body
politic is not using its domestic disciplinary powers to sanction an
errant member, rather it is exercising its national defense powers to
neutralize the external threat and preserve the very foundation of all
our civil liberties. Here, the Constitution is not concerned with
handicapping the government to preserve other values. The Constitution
does not confer ``rights'' on foreign persons confronted in the course
of military operations, nor does the judicial branch sit as a ``neutral
arbiter'' as between our society and our foreign enemies, or a second-
guesser of military decisions. Rather, the Constitution is designed to
maximize the government's efficiency to achieve victory--even at the
cost of ``collateral damage'' that would be unacceptable in the
domestic realm.
What is this Constitutional framework for fighting a war? In
framing the Constitution, the Founders did something that was
unimaginable just a dozen years before the Convention. They created a
single powerful Chief Executive, vested in that office all ``The
Executive power,'' and conferred on that official the power as
``Commander in Chief.'' They did this for two reasons. First, from
bitter experience in fighting the Revolution, they concluded that, when
fighting a foreign war, the Nation's military power had to be maximized
by putting directive authority into a single set of hands. Second, they
understood that the kinds of decisions involved in war are inherently
``executive'' in character. Like all the classical philosophers, the
founders viewed executive power as a distinctive type of power quite
different from either judicial or legislative power. They understood
that contingencies arise that are simply not amenable to being handled
by a set of hard-and-fast, adopted in advanced by a legislature or
applied after-the-fact by judges.
The pre-eminent example is military decision making, which calls
for judgments that cannot be reduced to neat objective tests, but
rather requires the exercise of prudential judgment. Warfare requires
that certain decisions be made on an ongoing basis: how, and against
whom, should military power be applied to achieve the military and
political objectives of the campaign. The Framers created one office--a
President, elected by all the people of the country and alone
accountable to all the people--to make these decisions. If the concept
of a commander in chief means anything, it must mean that the office
holds the final and conclusive authority to direct how force is to be
used.
It is simply inarguable that, in confronting al Qaeda, the United
States is fighting a war. Al Qaeda is a highly organized foreign force
that has openly declared war on the United States and launched a series
of carefully coordinated attacks, here and abroad, for the purpose of
imposing its will on our country. These are organized armed attacks to
achieve political objectives. That is the very essence of war. The fact
that al Qaeda does not formally control a nation state does not make
our contest with them any less a war. We have fought foreign political
factions before. The fact that al Qaeda seeks to operate in secret,
disguising itself among civilians, and striking out in violation of the
laws of war, does not change the essential character of their acts. We
have fought irregular enemies before.
I think the American people fully understand that this is a real
war. We can apply a common sense test to see that this is so. Suppose
that tomorrow we were to determine that we had located Osama bin Laden
in his hideout. Would the American people think it legitimate for us to
peremptorily drop a bomb on the location to kill him? Or do you think
that the American people would think that Osama bin Laden (as he sits
in his lair) has rights under our Constitution and that we would have
to give warning and try to capture him alive for trial? Do we really
think that we could only deal with Osama bin Laden as a criminal
suspect and could only use lethal force to the extent permitted against
such suspects? The overwhelming majority of Americans clearly
understand that, when we locate them, it would be perfectly appropriate
for us to use peremptory force against Osama bin Laden and his
associates solely for the purpose of destroying them. That is because
they understand this is a war.
I hear a lot of hand-wringing about civil liberties in connection
with the Guantanamo detainees. I fail to see how our holding of those
detainees raises legitimate civil liberties issues. It seems to me
there are two respects in which fighting a war against a foreign enemy
can be said to raise ``civil liberties'' concerns, and neither apply to
the Guantanamo detainees. First, even where the government is using
military power only against foreign persons who have no connection with
the United States, there is the danger that, the government might
impose domestic security measures that trench upon the liberties of our
own people. For example, the government might assert rights of
censorship, rationing, or broader search powers. The government's claim
in such cases is not that the people are the ``enemy,'' but that the
exigencies of war require greater imposition on the people. This is
allegedly the kind of issue raised by the Patriot Act. But this is not
what we are discussing today.
The second type of civil liberty concern arises where the
government directs its military power against its own people. In many
of our foreign wars, there have been American citizens who have fought
with the enemy. In World War II, for example, there were hundreds who
did so, including some natural born citizens. As the Supreme Court
recently ruled in the Hamdi case, the government can legitimately use
military power against citizens who are part of enemy forces and can
detain them as ``enemy combatants.'' But, in such cases involving our
own citizens, civil liberties concerns naturally arise. In theory,
there is a risk that the government might oppress the body politic, and
bypass law enforcement procedures, simply be using war as a pretext for
labeling innocent citizens as enemies. Thus, the administration has
always acknowledged that citizens have the right to habeas corpus and
that some level of judicial scrutiny is required to ensure that the
government is not just acting pretextually. Thus, as the Hamdi court
ruled, some unspecified due process rights may apply when the
government seeks to hold its own citizens as foreign enemies. None of
this applies here, however. As far as I am aware, none of the detainees
at Guantanamo are American citizens.
II. THE PROPRIETY OF THE ADMINISTRATION'S DETERMINATIONS
With foregoing basic principles in mind, let us turn to the various
issues that have been raised--namely: (1) whether the detainees at
Guantanamo can be held without greater process than they are already
being afforded; (2) whether these al Qaeda or Taliban forces are
entitled to the protections of the Geneva Convention; and (3) whether
some of the detainees may be tried for war crimes before the military
commissions established by the President.
A. The Detention of the Guantanamo Captives as ``Enemy Combatants''
As I stated at the outset, and as the Supreme Court just reaffirmed
in Hamdi, an inherent part of war is capturing and holding enemy forces
for the duration of hostilities. While Hamdi teaches that American
citizens cannot be so held without some process, there has never been a
requirement that our military engage in evidentiary proceedings to
establish that each foreign person captured is, in fact, an enemy
combatant. On the contrary, the determination that a particular foreign
person is an enemy combatant has always been recognized as a matter
committed to the sound judgment of the commander in chief and his
military forces.
Now obviously the military has procedures for reviewing whether
persons being detained deserve to be held as ``enemy combatants.'' In
the case of the Guantanamo detainees, their status has been reviewed
and re-reviewed within the executive branch and the military command
structure. Nevertheless, the argument is being advanced that foreign
persons captured by American forces in the course of military
operations have a due process right under the fifth amendment to an
evidentiary hearing to fully litigate whether they are, in fact, enemy
combatants. We have taken and held prisoners in war for over 230 years,
and the suggestion that, as a legal matter, we owed each foreign
detainee a trial is just preposterous.
Now the easy and short answer to this particular criticism about
the Guantanamo detainees is that the claim has been totally mooted by
the military's voluntary use of the CSRT process. Under these
procedures, each detainee is given the opportunity to contest his
status as an enemy combatant. To my knowledge, we have provided more
``process'' for these detainees than for any group of wartime prisoners
in our history. While clearly not required by the Constitution, these
measures were adopted by the military as a prudential matter. They were
modeled on those that the Hamdi decision indicated would be sufficient
for holding an American citizen as an enemy combatant.\1\ Obviously, if
these procedures are sufficient for American citizens, they are more
than enough for foreign detainees who have no colorable claim to due
process rights.
---------------------------------------------------------------------------
\1\ Hamdi v. Rumsfeld, 124. S.Ct. 2633 (2004).
---------------------------------------------------------------------------
Indeed, most of the process embodied in the CSRT parallel and even
surpass the rights guaranteed to American citizens who wish to
challenge their classification as enemy combatants. The Supreme Court
has indicated that hearings conducted to determine a detainee's
prisoner-of-war status, pursuant to the Geneva Convention,\2\ could
satisfy the core procedural guarantees owed to an American citizen.\3\
In certain respects, the protocols established in the CSRTs closely
resemble a status hearing, as both allow all detainees to attend open
proceedings, to use an interpreter, to call and question witnesses, and
to testify or not testify before the panel.\4\ Furthermore, the United
States has voluntarily given all detainees rights that are not found in
any prisoner-of-war status hearing, including procedures to ensure the
independence of panel members and the right to a personal
representative to help the detainee prepare his case.\5\
---------------------------------------------------------------------------
\2\ The procedures are created under Army Regulation 190-8. Opening
Brief for the United States, Odah v. United States, at 31.
\3\ Hamdi, 124 S.Ct. at 2651.
\4\ Opening Brief in Odah at 33-34.
\5\ Id. at 34-35.
---------------------------------------------------------------------------
Nevertheless, there appear to be courts and critics who continue to
claim that the Due Process Clause applies and that the CSRT process
does not go far enough. I believe these assertions are frivolous.
I am aware of no legal precedent that supports the proposition
that foreign persons confronted by U.S. troops in military operations
have fifth amendment rights that they can assert against the American
troops. On the contrary, there are at least three reasons why the fifth
amendment has no applicability to such a situation. First, as the
Supreme Court has consistently held, the fifth amendment does not have
extra-territorial application to foreign persons outside the United
States.\6\ As Justice Kennedy has observed, ``[T]he Constitution does
not create, nor do general principles of law create, any juridical
relation between our country and some undefined, limitless class of
non-citizens who are beyond our territory.'' \7\ Moreover, as far as I
am aware, prior to their capture, none of the detainees had taken any
voluntary act to place themselves under the protection of our laws;
their only connection with the United States is that they confronted
U.S. troops on the battlefield. Finally, the nature of the power being
used against these individuals is not the domestic law enforcement
power--we are not seeking to subject these individuals to the
obligations and sanctions of our domestic laws--rather, we are waging
war against them as foreign enemies. As I have already explained, this
is a context in which the concept of due process is inapposite.
---------------------------------------------------------------------------
\6\ Johnson v. Eisentrager, 339 U.S. 763 (1950); United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990) (explaining that ``we have
rejected the claim that aliens are entitled to fifth amendment rights
outside the sovereign territory of the United States''); Zadvydas v.
Davis, 533 U.S. 678 (2001) (citing Eisentrager and Verdugo for the
proposition that ``[i]t is well established that certain constitutional
protections available to persons inside the United States are
unavailable to aliens outside of our geographic borders'').
\7\ Verdugo-Urquidez, 494 U.S. at 275 (Kennedy, J., concurring).
---------------------------------------------------------------------------
In society today, we see a tendency to impose the judicial model on
virtually every field of decisionmaking. The notion is that the
propriety of any decision can be judged by determining whether it
satisfies some objective standard of proof and that such a judgment
must be made by a ``neutral'' arbiter based on an adversarial
evidentiary hearing. What we are seeing today is an extreme
manifestation of this--an effort to take the judicial rules and
standard applicable in the domestic law enforcement context and extend
them to the fighting of wars. In my view, nothing could be more
farcical, or more dangerous.
Let us make no mistake about it. Any extension of due process
rights to foreign adversaries in war would effectuate probably the most
profound shift in power in our Constitutional history. Any decision
that affected the life or liberty of the foreign persons being
confronted by our Armed Forces would be subject to judicial review.
Either before or after military actions are taken, judges, purporting
to balance all the competing interests, would pronounce whether the
actions passed legal muster. This would make the judges the ultimate
decision makers. For the first time in our history, judges would be in
charge of superintending the fighting of wars.
These are not the ``Men in Black'' we should want to see in charge
of fighting our wars. A moment's reflection should tell us that courts
and judges lack both the institutional capacity and the political
accountability for making these types of decisions. As I observed
above, at the heart of a commander's military decisions is the judgment
of what constitutes a threat or potential threat and what level of
coercive force should be employed to deal with these dangers. These
decisions cannot be reduced to tidy evidentiary standards, some
predicate threshold, that must be satisfied as a condition of the
President ordering the use of military force against a particular
individual. What would that standard be? Reasonable suspicion, probable
cause, substantial evidence, preponderance of the evidence, or beyond a
reasonable doubt? Does anyone really believe that the Constitution
prohibits the President from using coercive military force against a
foreign person--detaining him--unless he can satisfy a particular
objective standard of evidentiary proof?
Let me posit a battlefield scenario. American troops are pinned
down by sniper fire from a village. As the troops advance, they see two
men running from a building from which the troops believe they had
received sniper fire. The troops believe they are probably a sniper
team. Is it really being suggested that the Constitution vests these
men with due process rights as against the American soldiers? When do
these rights arise? If the troops shoot and kill them--i.e., deprive
them of life--could it be a violation of due process? Suppose they are
wounded and it turns out they were not enemy forces. Does this give
rise to Bivens Constitutional tort actions for violation of due
process? Alternatively, suppose the fleeing men are captured and held
as enemy combatants. Does the due process clause really mean that they
have to be released unless the military can prove they were enemy
combatants? Does the Due Process Clause mean that the American military
must divert its energies and resources from fighting the war and
dedicate them to investigating the claims of innocence of these two
men?
This illustrates why military decisions are not susceptible to
judicial administration and supervision. There are simply no
judicially-manageable standards to either govern or evaluate military
operational judgments. Such decisions inevitably involve the weighing
of risks. One can easily imagine situations in which there is an
appreciable risk that someone is an enemy combatant, but significant
uncertainty and not a preponderance of evidence. Nevertheless, the
circumstances may be such that the President makes a judgment that
prudence dictates treating such a person as hostile in order to avoid
an unacceptable risk to our military operations. By their nature, these
military judgments must rest upon a broad range of information,
opinion, prediction, and even surmise. The President's assessment may
include reports from his military and diplomatic advisors, field
commanders, intelligence sources, or sometimes just the opinion of
frontline troops. He must decide what weight to give each of these
sources. He must evaluate risks in light of the present state of the
conflict and the overall military and political objectives of the
campaign.
Furthermore, extension of due process concepts as a basis for
judicial supervision of our military operations would be fundamentally
incompatible with the power to wage war itself, so altering and
degrading that capacity as to negate the Constitution's grant of that
power to the President.
First, the imposition of such procedures would radically alter the
character and mission of our combat troops. To the extent that the
decisions to detain persons as enemy combatants are based in part on
the circumstances of the initial encounter on the battlefield, our
frontline troops will have to concern themselves with developing and
preserving evidence as to each individual they capture, at the same
time as they confront enemy forces in the field. They would be diverted
from their primary mission--the rapid destruction of the enemy by all
means at their disposal--to taking notes on the conduct of particular
individuals in the field of battle. Like policeman, they would also
face the prospect of removal from the battlefield to give evidence at
post-hoc proceedings.
Nor would the harm stop there. Under this due process theory, the
military would have to take on the further burden of detailed
investigation of detainees' factual claims once they are taken to the
rear. Again, this would radically change the nature of the military
enterprise. To establish the capacity to conduct individualized
investigations and adversarial hearings as to every detained combatant
would make the conduct of war--especially irregular warfare--vastly
more cumbersome and expensive. For every platoon of combat troops, the
United States would have to field three platoons of lawyers,
investigators, and paralegals. Such a result would inject legal
uncertainty into our military operations, divert resources from winning
the war into demonstrating the individual ``fault'' of persons
confronted in the field of battle, and thereby uniquely disadvantage
our military vis-a-vis every other fighting force in the world.
Second, the introduction of an ultimate decisionmaker outside of
the normal chain of command, or altogether outside the executive
branch, would disrupt the unitary chain of command and undermine the
confidence of frontline troops in their superior officers. The
impartial tribunals could literally overrule command decisions
regarding battlefield tactics and set free POWs whom American soldiers
have risked or given their lives to capture. The effect of such a
prospect on military discipline and morale is impossible to predict.
In sum, the claim that the Guantanamo detainees are not getting
adequate process is totally without substance. As foreign persons
confronted by U.S troops on the battlefield, they have no legal right
to Constitutional due process. They are being properly held under the
laws of war. They have, in fact, received the same process that
American citizens would get under the circumstances.
I have heard some additional suggestion that it would be useful at
this juncture for Congress to adopt a precise definition of the
category of persons who can be detained as ``enemy combatants.'' I
disagree. The existing definition that is now part of the common law of
war is fully adequate and sensible. Any attempt by Congress to codify a
more specific definition is unnecessary and would end up unduly
hamstringing our military forces. Moreover, trying to frame a more
specific statutory definition would be incompatible with the law of war
as an evolving body of ``common law''--one that develops with
experience and can adapt to meet new and changing circumstances.
Especially given the state of affairs we face today and the type of
enemy we are confronting, I think trying to lock in any particular
verbal formulation would be extremely unwise.
Certainly no legislative action is necessary to ensure that the
President has adequate detention authority. The President's power does
not come from Congress in the first place; it comes directly from
Article II of the Constitution. After all, since the country's
inception, our military forces have engaged in at least 10 major wars
and literally hundreds of military expeditions in which we have faced a
broad range of opposing forces, ranging from regular armies to
irregular forces, including Barbary pirates, hostile Indians, Mexican
guerillas, Chinese Boxers, Villa's banditti, Philippine
Insurrectionists, and the Viet Cong, just to name a few.
No one has had the temerity to suggest that our forces in all these
campaigns lacked authority to capture the enemy, or that they needed
some carefully-crafted statute to do so. Nor, as far as I know, have we
ever found it necessary or prudent to define in advance with any
statutory detail the class of persons who could be detained in
connection with our military operations. On the contrary, when Congress
has authorized force--either in declarations of war or otherwise--it
has done so in the most general terms in way that reinforces and
augments the President's inherent war fighting powers, not in a way
that seeks to curtail them.
In dealing with foreign persons, the proper scope of military
detention authority is governed by the body of customary international
law commonly referred to as ``the law of war.'' This body of law is in
the nature of a ``common law'' that reflects the usages of civilized
nations. It is this ``law of war'' that has traditionally defined the
class of persons that may be detained and held in connection with
military operations. That traditional definition is perfectly
serviceable and has proven neither too sweeping, nor too crabbed. There
is simply no good reason to impose on our military any greater
constraint than already exist under those time-honored law-of-war
principles. There are obvious reasons why imposing greater limits on
our Armed Forces would be foolhardy.
Under the traditional law of war, the core principle is that
military authorities may capture and hold persons who are part of the
enemy's forces, as well as those who directly support hostilities in
aid of enemy forces. By necessity, that definition is cast in general
terms. Even in classic warfare between regular armies, gray zones can
arise at the margin in determining who is directly supporting
hostilities in aid of enemy forces to a degree to make them subject to
detention. Over time, those subject to detention has been found to
include not only the actual armed fighters, but also ``civil persons .
. . in immediate connection with an army, such as clerks,
telegraphists, aeronauts, teamsters, laborers, messengers, guides,
scouts, and men employed on transport and military railways. . . .'' W.
Winthrop, Military Law and Precedents 789 (2nd ed. 1920) (emphasis
added).
As with any effort to classify an area as complex as war,
definitions must retain some generality. The fact that difficult
judgment calls will inevitably arise on the margin does not mean that
any more precise definition makes sense or that the general definition
is faulty. These are not the kinds of activities that lend themselves
to exhaustive codification in advance. The genius of a common law
system is that it allows the law to develop guided by experience. I
think any effort to codify ``enemy combatant'' status with greater
specificity will simply create a new set of gray zones, arrest the
rational development of the law of war based on real experience, and
end up unwisely putting our military in a statutory straightjacket.
B. Determination of Status under the Geneva Convention
The President has determined that neither members of al Qaeda nor
Taliban fighters are entitled to the protections of the Geneva
Convention. While some lower courts and critics have carped about this
decision, there can be no doubt that al Qaeda and the Taliban fail to
meet the Geneva Convention's eligibility criteria.
It must be borne in mind that the choice here is not between
applying the Geneva Convention versus applying no law at all. Under the
common law of war, military detainees must be held under humane
conditions--that is the general rule in the absence of specific treaty
agreement. The Geneva Convention establishes an additional level of
special ``privileges'' that are to be enjoyed by the forces of those
countries that conduct their military operations in accord with
civilized norms, and that agree to treat their own prisoners in like
manner. The whole purpose for offering these ``privileges'' is to
promote adherence to the laws of war by rewarding those countries that
comply.
It is perverse to suggest that we should extend the privileges of
the Geneva Convention to al Qaeda or Taliban fighters--groups who have
flagrantly flouted all civilized norms and are among the most
perfidious and vicious in history. As one leading treatises in this
area notes, ``the only effective sanction against perfidious attacks in
civilian dress is deprivation of prisoner-of-war status.'' Rosas, The
Legal Status of Prisoners of War 344. In 1987, when the Reagan
administration rejected a proposed protocol that would have extended
POW rights to captured terrorists, his decision was almost universally
hailed, with both the New York Times and the Washington Post weighing
in with approving editorials.
If we did grant privileged status to al Qaeda and Taliban captives
they would enjoy the right to be held in essentially the same billet
conditions as the capturing country's own forces; the right to be
immune from the full range of coercive interrogation that would
otherwise be permissible under the laws of war; and, if tried for
offenses, the right to be tried before the same kind of tribunal that
would apply to the capturing country's own troops. Voluntarily granting
these rights to al Qaeda operatives would make no sense; subvert the
very goals the Conventions are intended to promote; and gravely impair
our ability to break down al Qaeda as an organization and to collect
the intelligence essential to accomplish this.
The Geneva Conventions award protected POW status only to members
of ``High Contracting parties.'' \8\ Al Qaeda, a non-governmental
terrorist organization, is not a high contracting party.\9\ This places
al Qaeda--as a ``group''--outside the laws of war. Furthermore, al
Qaeda and the Taliban fail to meet the eligibility criteria set forth
in Article 4 of the Geneva Convention. To qualify for protected status,
the entity must be commanded by a person responsible for his
subordinates, be outfitted with a fixed distinctive sign, carry its
arms openly, and conduct its operations in accordance with the laws of
war.\10\
---------------------------------------------------------------------------
\8\ Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 2.
\9\ See Memorandum for the Vice President, et al. from President,
Re: Humane Treatment of al Qaeda and Taliban Detainees at 1.
\10\ Id. at art. 4A(2).
---------------------------------------------------------------------------
Al Qaeda and the Taliban fail to satisfy even one of these four
bedrock requirements. These enemies our Armed Forces face on the
battlefield today make no distinction between civilian and military
targets and provide no quarter to their enemies. They have no organized
command structure and no military commander who takes responsibility
for the actions of his subordinates. Al Qaeda and the Taliban wear no
distinctive sign or uniform and violate the laws of war as a matter of
course. Consequently, these organizations do not qualify for the POW
protections available under the Geneva Convention.
For these reasons, the President rightly concluded that al Qaeda
and the Taliban do not qualify for POW status under Article 4 of the
Geneva Convention.\11\ The President's determination that the Geneva
Convention does not apply to al Qaeda and Taliban members is
conclusive. This determination was an exercise of the President's war
powers and his plenary authority over foreign affairs,\12\ and is
binding on the courts.\13\ Furthermore, the United States has made
``group'' determinations of captured enemy combatants in past
conflicts.\14\ Accordingly, ``the accepted view'' of Article 4 is that
``if the group does not meet the first three criteria . . . the
individual member cannot qualify for privileged status as a POW.'' \15\
---------------------------------------------------------------------------
\11\ See Memorandum for the Vice President, et al. from President,
Re: Humane Treatment of al Qaeda and Taliban Detainees at 1.
\12\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
320 (1936).
\13\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).
\14\ See, e.g., Howard S. Levie, Prisoners of War in International
Armed Conflict, 59Int'lStud. 1, 61 (1977); Adam Roberts,
Counterterrorism, Armed Force, and the Laws of War, 44 Survival no. 1,
23-24 (Spring 2002).
\15\ W. Thomas Mallison and Sally V. Mallison, The Juridical Status
of Irregular Combatants Under the International Humanitarian Law of
Armed Conflict, 9 Case W. Res. J. Int'l 39, 62 (1977).
---------------------------------------------------------------------------
As far as I can tell, none of the President's critics have advanced
any set of facts that would call into question the merits of the
President's decision. I have heard no serious argument that either al
Qaeda or the Taliban fall within the requirements of Article 4 and thus
are entitled to protection under the Convention. Instead, what we see
is a lot of sharp ``lawyer's'' arguments that the President is somehow
precluded from making a group decision and that the eligibility of
detainees must be determined through individualized hearings before
``competent tribunals.'' These arguments largely rest on a misreading
of Article 5 of the Convention.
Article 5 of the Convention provides that:
[t]he present Convention shall apply to the persons referred to
in Article 4 from the time they fall into the power of the
enemy and until their final release and repatriation. Should
any doubt arise as to whether persons, having committed a
belligerent act and having fallen into the hands of the enemy,
belong to any of the categories enumerated in Article 4, such
persons shall enjoy the protection of the present Convention
until such time as their status has been determined by a
competent tribunal.\16\
---------------------------------------------------------------------------
\16\ Convention Relative to the Treatment of Prisoners of War, Aug.
12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 5.
There is nothing in this Article that forecloses the President from
reaching a threshold decision that a particular military formation does
satisfy the Treaty standards. Since the Convention's coverage depends,
in the first instance, on whether a group in which the detainee
participated has the requisite attributes, it necessarily calls for a
``group'' decision. Certainly, Article 5 does not mean that a group's
eligibility can be relitigated through a series of individualized
proceedings. By its terms, Article 5 applies only where an acknowledged
belligerent raises a doubt whether he is qualifies for POW status. I am
not aware that any detainee has raised any ``doubt'' as to his status.
On the contrary, the principal argument of critics has been that a
detainee can successfully raise doubt, within the meaning of Article 5,
simply by asserting he is eligible. But the United States has expressly
refused to adopt a modification of the Treaty that sought to establish
that regime.
It seems to me that, once a particular organization has been found
not to qualify under Article 4, no individualized inquiry under Article
5 is appropriate or necessary unless a detainee is raising a plausible
claim that he belongs to another category that does qualify under
Article 4. The classic example is the case of a pilot who, after
conducting his mission, is shot down, sheds his uniform trying to
escape, and is later apprehended and accused of sabotage. The evident
purpose of Article 5 is to allow the pilot to make the claim that he is
covered by the Geneva Convention because he carried out his belligerent
acts as a member of the regular Armed Forces of a signatory power.
Here, the detainees have raised no colorable claims that they are
members of a force that falls within the categories set forth in
Article 4.
C. The Propriety of Military Tribunals
I would like to turn, finally, to that group of detainees whom the
United States is accusing of committing violations of the laws of war.
The President has, by order, established military commissions to try
these individuals for their offenses. While the law of war once
permitted summary execution for certain war crimes, the use of military
commissions has now emerged as the norm, affording a more regular
mechanism by which military commanders can impose punishment on enemy
forces. Ever since the Revolution, the United States has had a
consistent practice of using military commissions to try members of
foreign forces for violations of the laws of war.\17\ Congress has long
recognized the legitimacy of military commissions as a means to
prosecute war criminals,\18\ and the courts have specifically upheld
their use.\19\
---------------------------------------------------------------------------
\17\ William Winthrop, Military Law and Precedents, 464, 832 (2d
ed. 1920); Major William Birkhimer, Military Government and Martial
Law, 533-35 (3d ed. 1914).
\18\ See, e.g., Act of March 3, 1863, Sec. 30 (12 Stat. 731, 736).
\19\ As the Court stated, ``the detention and trial of [war
criminals]--ordered by the President in the declared exercise of his
powers as Commander in Chief of the Army in time of war and of grave
public danger--are not to be set aside by the courts without the clear
conviction that they are in conflict with the Constitution or laws of
Congress constitutionally enacted.'' Ex Parte Quirin, 317 U.S. 1, 25
(1942).
---------------------------------------------------------------------------
In one sense we seem to making progress. Originally, when the
President promulgated his military tribunal order, there was a hue and
cry in some quarters that this was an end run around Article III courts
and that all proceedings belonged in out civilian court system. But at
this stage there does not appear to be any real argument that these
trials belong in civilian courts. It now seems to be widely conceded
that military commissions are, in fact, the place where war crimes
should be prosecuted.
Some have suggested that there is a need for Congress to expressly
authorize the use of military commissions. There have also been
suggestions that Congress should dictate the precise procedures to be
used in military commissions, and that these should be required to
mirror the process used in regular courts-martial. I disagree with both
of these suggestions.
First, there is no need for Congress to authorize military
commissions. The authority to establish military commissions is
expressly granted to the President under Article II of the Constitution
as an inherent part of his power as ``Commander in Chief.'' It has long
been recognized, both as a matter of legal theory and historical
practice, that the power to punish enemy forces is integral to a
commander's authority--it is one and the same with the commander's
power to direct the killing or capturing of enemy forces. Military
commissions are thus a military instrument--a means by which a
commander attempts to control the conduct of enemy forces in the field
by punishing, or threatening to punish, their forces for violations of
certain civilized norms. As Abraham Lincoln's attorney general
correctly observed, ``The commander of an army in time of war has the
same power to organize military tribunals and execute their judgments
that he has to set his squadrons in the field and fight battles.''
Undoubtedly, this is why military commissions have been so consistently
used throughout our history.
Second, Congress has, in fact, already authorized the use of
military commissions. In 1916 Congress revised the Articles of War to
expand court-martial jurisdiction (i.e., jurisdiction over members of
the U.S. military) to include offenses against the laws of war. Article
15 of this codification stated that the creation of statutory
jurisdiction for courts martial does not ``deprive military commissions
. . . of concurrent jurisdiction with respect to offenders or offenses
that . . . by the law of war may be tried by military commissions.'' In
proposing this new article, the Army Judge Advocate General explained
that it was meant to ``save'' the pre-existing jurisdiction of common
law military commissions. In both the Yamashita and Madsen cases, the
Supreme Court noted that Article 15 was intended to preserve non-
statutory jurisdiction of military commissions established by the
President or commanders in the field to try law-of-war violations.
In Quirin, the Supreme Court held that Article 15 constituted
congressional authorization for the President to create military
commissions. The Court noted that ``Congress [in Article 15] has
explicitly provided, so far as it may constitutionally do so, that
military tribunals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases,'' and held that ``Congress
[in Article 15] has authorized trial of offenses against the law of war
before such commissions.'' In 1950, Congress affirmed the Court's
construction when, against the backdrop of the Court's decisions, it
recodified Article 15 as Article 21, expressly indicating in the
legislative history that it was aware of, and accepted, the Court's
construction. See S. REP. 486, Establishing a Uniform Code of Military
Justice, 81st Cong., 1st Sess., at 13 (June 10, 1949) (`The language of
[Article of War] 15 has been preserved because it has been construed by
the Supreme Court. (Ex Parte Quirin, 317 U.S. 1 (1942)''); H.R.REP.
491, Uniform Code of Military Justice, 81st Cong., 1st Sess., at 17
(April 28, 1949) (same).
The great advantage of military commissions, obviously, as common
law courts, is that their procedures are flexible and can be tailored
to meet military exigencies at any given time. Neither the Constitution
nor the laws of war dictate any particular set of rules for trials
before military commissions. Because these are executive courts,
designed to aid the President in carrying out his Commander in Chief
responsibilities, the President and his commanders can readily adapt
their procedures to changing conditions. In selecting procedures, the
President must balance the interests of fairness with the National
security interests of the country and the practical exigencies of the
particular military campaign. In recognition of this, Congress has, in
Article 36, given the President broad authority to prescribe
``[p]retrial, trial, and post-trial procedures, including modes of
proof, for cases arising under this chapter triable in . . . military
commissions and other military tribunals.'' 10 U.S.C. Sec. 836. For
this reason, I think it would be a mistake to set in statutory concrete
any particular set of procedures or standards. Especially given the
fluid threats we face today, it is essential to maintain the
flexibility inherent in military commissions.
STATEMENT OF PROFESSOR STEPHEN A. SALTZBURG, WALLACE AND
BEVERLEY WOODBURY UNIVERSITY PROFESSOR OF LAW, THE GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Saltzburg. Thank you, Mr. Chairman. It's a pleasure to
be here today, and I'd like to say it's particularly delightful
on this panel with Attorney General Barr, who is someone I have
the greatest respect for, and Dean Hutson is also one of the
great thinkers about military law. If we can help today, it's
largely because of what they do, probably more than I.
I have given you an extensive written statement and I don't
want to read it and I don't want to go through it in detail. It
covers almost all of the issues that you have asked us to think
about. But I do want to address several things that appear to
have been important on your first panel.
First, Mr. Chairman, you asked a very important question,
and I don't think you got a good answer to it, and that is if
Congress acts and enacts legislation, will that improve, or
will it bolster the executive's ability to defend actions in
Federal court? The answer to that is clearly, yes. I was a
little surprised that--it is well established, we teach this
now in Constitutional Law 101--no one mentioned, Justice
Jackson's opinion in Youngstown Steel, where he basically
defined three categories of situations: the first is when the
President, as General Barr said, acts alone invoking executive
power; well, he has some. The courts will look at that and
defer to some extent to the President. But where Congress acts
and authorizes the President to act, and it's Congress plus the
President, it's Article I and Article II of the Constitution
together, the Article III courts give greatest deference. Of
course, where Congress chooses to impose restrictions on the
executive, that's when the courts believe the President's power
is weakest.
So the real question I think is not whether it would be
helpful to the President for Congress to act; it would. This is
not something where it's Congress versus the administration. We
are in this together. This is Congress trying to figure out how
to enact legislation that will say to the world that this
entire government stands behind what we are doing. The American
people stand behind it. We have taken a careful look at it, and
it's no coincidence I use the term AWOL to describe Congress in
my written testimony. Mr. Chairman, I think you're exactly
right in your opening statement. Congress has not shown
sufficient interest in this. You funded everything, but haven't
looked at it, and haven't tried to tailor it. You don't want to
get into micromanaging, but there are certain issues that I
think are on the table that need to be examined carefully.
Let's look at what they are. First, and you don't need just
Youngstown Steel, by the way. If you want further modern recent
evidence of the importance of Congressional action, just look
at Hamdi, the plurality opinion by Justice O'Connor basically
makes it clear, if you hadn't issued the joint resolution in
September 2001, then the enemy combatant detention would have
been in big trouble in the Supreme Court. It's because Congress
acted and the President relied on Congress's authority that the
President was upheld by, even there, by a divided court.
But what are the issues that have arisen? Well, first there
is this question of who is an enemy combatant. Contrary to some
of the things you heard this morning, that term is not one of
those terms of art that has a clearly established meaning. The
Geneva Conventions do define who is lawfully engaged in warfare
and who is engaged in warfare unlawfully, but this term enemy
combatant was one that was drawn from a Supreme Court opinion
in Ex parte Quirin and it's one that hasn't been used that
often. The question is who should be detained or eligible for
detention? We have detained people in circumstances in which
it's easy to defend what the executive has done. On the
battlefield in Afghanistan. On the battlefield in Iraq, people
fight us, they fight us unlawfully; we have the right to seize
them and to detain them. In my opinion, whether a person is an
American citizen as Yassir Hamdi was, if he is on the
battlefield fighting against United States troops, he is just
as subject to being detained as anybody else fighting for the
enemy. That's my view about it. That's not to say what process
he should have, but just that he is eligible for detention.
More difficult is the case being readied for argument as we
sit here, the Padilla case, where the President has claimed the
right to detain as an enemy combatant a United States citizen
seized in O'Hare Airport who was far from the battlefield, who
is alleged to have been studying with al Qaeda, looking at
bombing. But there is a question. Does that kind of person
qualify? What does it mean to be a supporter of or someone in
sympathy with al Qaeda or related or affiliated organizations?
The question is how far are we as a country willing to go
to broaden the definition of what we ordinarily think of as a
combatant, to cover people who are far, far removed but are
offering some kind of support or cheerleading perhaps for
things that we despise, and that pose dangers to us. That's one
of the issues. Does it matter? I have laid out some of the
questions I think Congress should ask. Does it matter whether
we're dealing with American citizens? Does it matter whether
people are captured on the battlefield or far removed from it?
That's one set of issues.
A second set of issues is how long can we keep people
without trial. Some people we want to try and I think one of
the problems that, Mr. Chairman, you point out is by not
bringing anyone to trial, we cast doubt on whether or not these
people are such serious criminal elements as we have
maintained. Because there is no public presentation of
evidence, no one in the world is sure whether the people who
were detained are really as bad as we say they are, and warrant
the kind of trials that we say they warrant. So it is important
to get this process moving.
As to the question about military commissions, I couldn't
agree more with Attorney General Barr. Military commissions
have been around since the Revolutionary War. They have a
pedigree. They are used throughout the world. There is nothing
to apologize about for military commissions. However, this is a
unique use of them. We have not used military commissions
before against groups like al Qaeda, because we have never had
to fight this kind of battle. We have never had to set up a
thing like Guantanamo, where we move people from around the
world into our facilities for interrogation, for detention and
now for prosecution. The question is, should we have procedures
that recognize that this is in fact unique?
If we captured somebody--Senator McCain is a person that I
should defer to on this--but if we captured somebody committing
a war crime in Vietnam, and we being the United States, we
would reserve the right to have a military commission and to
prosecute that person and we would probably do it right there,
in country, and the punishment would be right there. But that's
because they were on the battlefield. We didn't have to worry
so much about making a mistake about whether or not we had
somebody that was really the enemy. When you reserve the right
to seize people who were far removed from the battlefield, and
you move them into a place like Guantanamo, additional issues
arise. The question is what kind of procedures are we to have?
Now, the American Bar Association with whom I do a lot of
work, but for whom I cannot speak completely today, has an
operating policy which I strongly support, and that is that
civilian counsel should be welcomed in these military
commissions. We have lawyers, fine lawyers who are there to
make sure that due process is provided, and yet the military
commission process has done a lot to discourage them, and to
treat civilian counsel, who in Federal courts throughout the
United States are deemed perfectly capable of handling
classified information, as being threats. There is something
wrong with that process, it's cast doubt on whether we have
confidence in the legal system in the United States and the
rule of law. I think that's an issue that your subcommittee and
the entire committee needs to look at.
There is a question about, and I think it may have come up
in the earlier panel; I think Senator McCain may have asked it.
Why don't we have some kind of civilian review here? I spoke to
an attorney general with one of our principal allies who has
spent hours and hours and hours with the administration urging
that if we had civilian review, appellate review of the
commissions, that his country would be satisfied with the
process. That that would provide a sense of fairness, a sense
that this is not some kind of a criminal prosecution where the
executive picks the judges, picks the jurors, picks the
appellate tribunal, and therefore everything is kind of fixed
in advance. Civilian review matters and I think that's
something that this committee could consider. It could consider
recommending, for example of a panel of Article III judges. It
could consider giving jurisdiction to the United States Court
of Appeals for the Armed Forces, an Article I court, but a
court of five civilian judges who have extensive experience in
military justice.
The American Bar Association urged the President and urged
the executive when the commissions were being set up to follow
the rules on court-martial as much as possible, and the
decision was made not to do that. I think that undercut a sense
of fairness. It's not the Federal Rules of Evidence, by the
way, that people think perhaps should be used here. It's the
military rules of evidence, which have been in effect for many
years now. Those rules, modified to recognize the necessities
of Guantanamo, would have been a much better place to start
than the decision that all relevant evidence would be
admissible, which again cast doubt on whether the same kind of
fairness that we give our soldiers is going to be provided to
the detainees who are actually put on trial.
So the question of what kinds of procedures, and who ought
to be tried, these are questions that I think are very real and
very important questions.
You heard a lot yesterday, and you've heard some today
about the treatment of detainees. I have included a lot in the
testimony that I've written on recommendations for what we
should do to assure the fair treatment of detainees. I think
that the point that was made and should be emphasized is, every
time people in high positions of authority express doubt on
whether the use of dogs, or whether the threats, or whether
making people, men wear women's clothing or expose themselves
naked to women interrogators--every time we express doubts
about whether that's inhumane, or whether that's degrading, we
invite the world to do that to our soldiers when they're
captured. The Geneva Conventions and everything about them
after World War II were to assure that we were setting
standards that we were confident that we would apply, and that
we would demand would be applied to our soldiers. When we give
on those things, when we weaken it, all we do is put the men
and women who are out there at risk, we put them at greater
risk. That's something we don't want to do.
I don't have a doubt in my mind that the Geneva
Convention's prisoner of war provisions may not apply to al
Qaeda, that may be a very reasonable judgment. There is a big
debate in the international community about the Taliban and
whether they can be denied prisoner of war status. I'll let the
people who are better experts on the Geneva Conventions than I
speak to that. But there is a very strong argument, and I think
most people subscribe to it, that common Article 3 of the
Geneva Conventions providing for humane treatment of prisoners
applies to everybody, and that we're bound by that, even though
we're dealing with people who are not themselves signatories.
Well, that's my opening remarks. I'd be happy to answer any
questions that any of you might have.
[The prepared statement of Mr. Saltzburg follows:]
Prepared Statement by Stephen A. Saltzburg
I. INTRODUCTION
Senator Graham, and members of the subcommittee, I appreciate the
opportunity to testify before you this morning. In 2001, shortly after
the attacks on the World Trade Center and the Pentagon, the President
of the American Bar Association (ABA) appointed a Task Force on
Terrorism and the Law. That Task Force was succeeded by the American
Bar Association Task Force on Enemy Combatants which continues to this
day. I had the privilege of serving on both Task Forces and in
participating in debates in the ABA House of Delegates on many of the
issues this subcommittee is considering this morning. I draw upon ABA
resolutions and Reports to the House of Delegates for much of this
testimony. I shall identify ABA policy where it exists and also
indicate some of my own views as I proceed.
For many years I have served as the General Counsel of the National
Institute of Military Justice (NIMJ), a non-partisan entity designed to
improve and educate the public about military justice. Although NIMJ
has been involved in discussions about the issues I address, it has
taken no position on those issues. Nothing I say here today should be
viewed in any way as endorsed by NIMJ.
The horrific bombings of the London subway and bus last week remind
not only those of us who reside in the United States but all those who
reside in Western-style democracies throughout the world of the dangers
posed by international terrorism. Since the unprecedented attacks
suffered by the United States on September 11, 2001, the United States
has devoted enormous resources to protecting the homeland against
additional terrorism attacks. The President, the Department of Defense
(DOD), the Department of Justice (DOJ), intelligence agencies and the
relatively new Department of Homeland Security (DHS) have made
eradicating terrorism one of the most important priorities of the
United States.
The London bombings, following bombings in Madrid and elsewhere in
the world, demonstrate that, while the United States may be the
principal target of terrorists, it is not the exclusive target. It has
become clearer and clearer that one nation acting alone cannot
effectively respond to the terrorist threat. International cooperation
is essential. Just as the world's sympathy was with Britain when its
celebration over being awarded the 2012 Olympic games quickly turned to
mourning the deaths of scores of innocent people and injuries to
hundreds of others, the world's sympathy was with the United States
following the attacks in New York and the Washington, DC, area on
September 11. But, as time has passed, sympathy toward the United
States has turned to dismay in many parts of the world as to the manner
in which the United States has carried out its ``war on terror.''
In truth, we now understand, better than we ever have, that we have
a new type of enemy and face novel challenges in seeking to defeat that
enemy. Tools that might have seemed sensible, even necessary, in the
immediate aftermath of September 11 need to be re-evaluated. We must be
constantly aware of how our actions are perceived throughout the world,
and how easy it is to turn trust into distrust as a result of missteps.
We cannot win the war on terror alone, any more than Britain or Spain
can win it alone. We need their help as they need ours. It is
imperative, therefore, that the policies of the United States be seen
throughout the world as just and fair responses to the clear and
present dangers posed by international terrorism.
On September 18, 2001, Congress enacted a Joint Resolution (Public
Law 107-40, 115 Stat. 224) authorizing the President ``to use all
necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the
terrorist attacks on September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations or
persons.'' The Preamble to the resolution states that the acts of
September 11 were attacks against the United States that ``render it
both necessary and appropriate that the United States exercise its
right to self-defense.''
The United Nations (U.N.) Security Council approved a resolution
recognizing the United States' right to self-defense, see U.N.S.C.Res.
1368, and the North Atlantic Treaty Organization's (NATO) North
Atlantic Council stated that it regarded the attack as an action
implicating Article V of the Washington Treaty that ``an armed attack
against one or more of the Allies in Europe or North America shall be
considered an attack against all.''
Congress's Joint resolution was bolstered by the actions of the
U.N. and NATO. The international community understood the need for the
United States to act. The President sent troops to Afghanistan, those
troops removed the repressive Taliban regime from power, and there was
widespread support for and understanding of the need to prevent a
nation from providing territory for terrorist training camps and from
harboring terrorist groups.
Questions about the plans of the United States to deal with
terrorism began to arise in connection with the November 13, 2001
military order in which the President announced that certain non-
citizens would be subject to detention and trial by military
authorities. The order provides that non-citizens whom the President
deems to be, or to have been, members of the al Qaeda organization or
to have engaged in, aided or abetted, or conspired to commit acts of
international terrorism that have caused, threaten to cause, or have as
their aim to cause, injury to or adverse effects on the United States
or its citizens, or to have knowingly harbored such individuals, are
subject to detention by military authorities and trial before a
military commission. The President's Military Order was cause for
concern for a number of reasons. One of the most important was that it
appeared to arrogate to the President complete authority to ``deem''
individuals to be members of al Qaeda or to have aided, abetted, or
conspired to commit acts of terrorism and to prescribe procedures for
prosecutions that lacked many of the hallmarks of American criminal
justice that are associated with basic notions of due process and
fundamental fairness.
The DOD has now adopted procedures for military commissions and has
developed a non-exclusive list of war crimes that can be prosecuted
before such commissions. The proposed use of military commissions, as
opposed to civilian courts, has been controversial from the date the
military order issued, and the controversy has become more rather than
less heated over time. The procedures governing the commissions have
generated much of the controversy.
In addition to prescribing military commissions to try unlawful
combatants, the executive constructed the Guantanamo facility to hold
unlawful combatants. Although the executive announced plans to put some
of the combatants on trial for violations of the laws of war, it became
clear that many would be held for long periods of time without any plan
to try them. They were detained for security reasons, and in many parts
of the world there were concerns about the legality of detaining,
perhaps indefinitely, individuals without trial.
The executive also seized two Americans, one in Afghanistan, and
another at the O'Hare airport in Chicago, and charged them as enemy
combatants. Both were housed in the United States as their cases worked
their way through Federal courts to the United States Supreme Court.
One, Yaser Hamdi, has now been released and returned to Saudi Arabia
following a Supreme Court decision recognizing his right to consult
with counsel and to some procedural protections. Hamdi v. Rumsfeld, 542
U.S. 507 (2004). The other, Jose Padilla, continues to seek his release
in Federal court after the Supreme Court held that he had brought his
habeas corpus challenge in the wrong Federal court. Rumsfeld v.
Padilla, 542 U.S. 426 (2004).
As the controversy has mounted, some of our crucial allies have
protested the use of or the procedures for military commissions and the
prolonged detention of individuals without trial. Civil liberties
groups have questioned the detention of American citizens as enemy
combatants. Throughout it all, Congress has been silent. During the
almost 4 years since Congress authorized the President to take action
against those responsible for the September 11 attacks, Congress has
left to the President and the executive branch virtually unfettered
discretion in conducting the war on terrorism. The executive's actions
have been challenged in Federal courts. The United State Supreme Court
held in Hamdi that the Constitution imposes some limits upon the
ability of the President to hold ``enemy combatants'' in indefinite
detention. The Court also held that Federal law permits those detained
in Guantanamo to seek Federal habeas corpus review. Rasul v. Bush, 542
U.S. 466 (2004). Lower Federal courts have struggled to decide what
constitutional protections are due individuals whom the government
either plans to hold without trial or to prosecute in military
commissions. While Federal courts have not welcomed having to second
guess the President as to the balance that should be struck between
protecting the Nation and preserving individual rights, they have
recognized their duty to decide the cases brought before them. The
courts could not and did not shirk their responsibility to assure that
basic constitutional values are not lost in the executive's war on
terrorism.
This duty is not the courts' alone; it is shared with Congress.
Yet, while the courts have met their responsibilities, Congress has
provided the courts with no more guidance than it has provided the
President. Congress has been silent for too long. There is no evidence
of congressional determination or courage to participate in the growing
debate about how to combat terrorism without compromising the values
for which the United States has long been proud to stand. Congress's
potential to advise the President, to assist the executive by adopting
legislation to deal with some of the knotty problems of substance and
procedure that have arisen, and to demonstrate both to the American
people and people throughout the world that the September 18, 2001,
Joint Resolution was not a blank check from Congress to the President
has gone unfulfilled.
II. CONGRESS AND THE PRESIDENT SHARE POWER OVER THE MILITARY, MILITARY
COMMISSIONS, AND DETENTIONS
The Constitution of the United States unmistakably gives Congress
as well as the President authority over military matters. Article I,
Section 8, grants to Congress the powers: ``To . . . provide for the
common Defence'' (clause 1); ``To define and punish piracies on the
high seas, and offenses against the Law of Nations; To declare war,
grant letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water; To raise and support Armies ; To provide
and maintain a Navy; To make Rules for the Government and Regulation of
the land and naval Forces'' (clauses 10-14). Article II confers on the
President the ``executive Power'' (Section 1) and makes him the
``Commander in Chief of the Army and Navy'' (Section 2).
Congress exercised its constitutional authority when it enacted the
Uniform Code of Military Justice (UCMJ). Indeed, Congress provided in
the Code for military commissions in Article 21 (10 U.S.C. Sec. 821).
That section provides:
The provisions of this chapter conferring jurisdiction upon
courts-martial do not deprive military commissions, provost
courts, or other military tribunals of concurrent jurisdiction
with respect to offenders or offenses that by statute or by the
law of war may be tried by military commission, provost court,
or other military tribunals.
The history of the section indicates that Congress intended to
preserve the option in some circumstances for the executive to choose
between using military commissions or other tribunals such as court-
martial. In Application of Yamashita, 327 U.S. 1 (1946), the Supreme
Court explained that Article of War 15, which was substantially similar
language to UCMJ Article 21, was adopted in 1916 in response to other
amendments of the Articles of War that which granted jurisdiction to
courts-martial to try offenses and offenders under the law of war. The
Court found that the language was intended to preserve the traditional
jurisdiction of military tribunals. In Madsen v. Kinsella, 343 U.S.
341, 346-47 (1952), the Court made the following statement about
military commissions: ``Since our Nation's earliest days, such
[military] commissions have been constitutionally recognized agencies
for meeting many urgent governmental responsibilities relating to war.
They have been called our common-law war courts.''(Footnote omitted)
In Article 18 of the UCMJ, Congress provided that ``[g]eneral
courts-martial also have jurisdiction to try any person who by the law
of war is subject to trial by a military tribunal and may adjudge any
punishment permitted by the law of war.'' Thus, Congress has given the
President and the military choices as to how to proceed against those
who violate the law of war. Whether Congress should do more and provide
clearer guidance as to the manner in which military commissions should
be employed and what should happen when there is insufficient evidence
to prosecute individuals for violating the laws of war or there are
other reasons why prosecution is impractical is a question that cries
out for an answer.
Just as Congress had the power to authorize the continued use of
military commissions and to prescribe court-martial jurisdiction,
Congress has the constitutional authority to impose restraints and
conditions upon the exercise of the power to prosecute. Congress also
shares authority with the executive to define the conditions under
which individuals may be detained. This includes the power to define
when, how, and under what circumstances and procedures enemy combatants
may be detained. Nevertheless, as the executive built the detention and
interrogation facilities at Guantanamo, Congress provided the funds but
no guidance, direction or control.
Congress did enact the USA Patriot Act in response to the war on
terror. That statute, while controversial, expanded executive power in
recognition of the increased dangers to the United States posed by
terrorism. Because some provisions of the statute will expire this year
unless reenacted, Congress now must examine the way in which the
statute has been implemented. But, aside from examining the provisions
of the Patriot Act that will otherwise sunset soon, Congress has been
absent without leave (AWOL) in the war on terror for too long.
III. WHAT TO DO WITH ENEMY COMBATANTS?
One of the most controversial aspects of the war on terrorism has
been the use of the term ``enemy combatant'' and the executive's claim
that such combatants may be detained until the war on terrorism is
over--which may be for life. Congress has not been heard on the
question of how to treat such combatants, despite the fact that life
imprisonment without trial is almost incredible to contemplate in a
country devoted to due process and the rule of law.
The executive position had been that enemy combatants may not only
be detained indefinitely, but also that while they are detained they
have no right under the laws and customs of war or the Constitution to
meet with counsel. The U.S. Supreme Court rejected the executive's
position regarding counsel in Hamdi v. Rumsfeld, 542 U.S. 507 (2004),
but the executive continues to claim the power to detain such
combatants for their entire lives.
Under any circumstances, the claim of power to detain indefinitely
would be cause for concern. Under the circumstances of the war on
terror, there is special reason for concern. Contrary to what might
seem the case when the term is used again and again by executive
officials, the term ``enemy combatant'' is not one that has been
frequently used by the military or one that has a well-established
meaning when the law of war is discussed.
The law of war generally assumes that states or quasi-states are
warring, and the word ``enemy'' generally means the state against which
another state is fighting. When there is no declaration of war that
specifically dates the beginning of a war, one looks to whether the use
of force has risen to such a level that a de facto state of war exists.
Based on the September 18, 2001 Joint Resolution and the existence of
United States forces on the ground in Afghanistan, it appears that the
United States was at war in 2001. But, it is less clear precisely who
the enemy was and is. Were we at war against Afghanistan? Or were we at
war against al Qaeda (the party responsible for the September 11, 2001
attacks) and the Taliban (who harbored al Qaeda)? Whether or not our
original effort was directed against the country or only against
selected groups within the country, once Afghanistan had a new
government, the American military effort was clearly directed at al
Qaeda and the Taliban as well as other groups and individuals
supporting them. Fighting a war against distinct groups as opposed to
against a nation poses unique problems for any nation.
A ``combatant'' in the law of war is typically a member of an Armed
Force, who is readily distinguishable from a civilian, because the
combatant typically wears a uniform and carries a distinctive
identification card or document. A combatant in the war on terrorism is
not so readily identified, because he/she is unlikely to be in uniform
or carrying an identification document showing his/her group
membership. A combatant in the war on terror may attack his or her own
country's soldiers as in Afghanistan and Iraq as well as soldiers from
other countries.
The law of war applies to non-state actors, such as insurgents. See
Common Article 3 of the 1949 Geneva Conventions, e.g., Convention
Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T.
3516, T.I.A.S. 3365, 75 U.N.T.S. 287. See also The 1977 Protocols
Additional to the Geneva Conventions, 16 I.L.M. 1391 Although the U.S.
has not ratified the 1977 Protocols, it recognizes that parts of them
reflect customary law of war. The fact that the law of war applies to
non-state actors does not mean, however, that nations prefer to apply
that law as opposed to domestic criminal law when dealing with
insurgencies. In fact, there is substantial evidence that nations have
resisted applying the law of war to internal conflicts. Their concern
has been that treating insurgencies as wars might legitimate acts of
violence carried out by non-state actors.
If, for example, Iraq and the United States are at war with
insurgents, then the insurgents under the law of war may kill and
engage in other acts of violence against legitimate targets. If, on the
other hand, insurgencies are simply treated as criminal acts, the non-
state insurgents may be prosecuted and punished for violence against
both civilians and military forces as well as for destruction of
property, and cannot claim a right to use deadly force against military
or other targets.
There is no question that the United States and Britain have the
right to prosecute those responsible for the September 11 attacks and
the attacks in London last week for their homicidal and horribly
destructive acts. The questions that have arisen for the United States
are whether the United States may detain individuals as unlawful
combatants and for how long, and what forum should be used for any
prosecutions. The United States has chosen to refer to al Qaeda
members, some Taliban fighters, and possibly others suspected of
involvement in terrorist acts as ``unlawful combatants'' or ``enemy
combatants.'' The use of these terms is consistent with the executive's
claim that we are at war, even though the war against terrorists is
directed at groups that are not confined to a single nation.
If we are at war with al Qaeda, the Taliban, and/or the Iraqi
insurgency, then members of those groups have the right to kill as long
as they focus on military targets. This might suggest that denominating
the struggle against terrorism as ``war'' is unwise, for it may
legitimize some of the acts that otherwise would simply be criminal.
This concern is largely theoretical, however, since there is no reason
to believe that those who commit terrorist acts will refrain from doing
so simply because we choose not to recognize their jihad as war.
Moreover, terrorists show no respect for the laws of war and no
allegiance to the principles underlying those laws. Terrorists engage
in murder without regard to law the law of war or any other. Their
disregard of the law of war does not immunize them, however, from
responsibility for violating it. Terrorist acts may violate domestic
criminal laws, and they also may violate the law of war. Under
appropriate circumstances, terrorists may be prosecuted as ordinary
criminals or as war criminals. Accordingly, the United States properly
has reserved the right to prosecute terrorists for violations of the
law of war and/or violations of domestic criminal law as the wise
exercise of discretion dictates.
Once we decide that we are at war with terrorist groups and they
are combatants who are acting unlawfully, all doubt disappears about
whether we can prosecute members of these groups and punish those who
are found guilty. What, however, are we to do with those members who
are caught but as to whom there is insufficient evidence to prosecute
or whose possible prosecutions are hindered by concerns about
disclosing military secrets or classified information? Can we detain
such persons as prisoners for as long as the war on terrorism
continues? This might well mean incarceration for life. It is no wonder
that such a prospect is disturbing to many people within the United
States and around the world. If there is insufficient evidence to
prosecute or it is impractical to prosecute, must there at least be
sufficient or substantial evidence of group membership? Must the
membership be active? Or is any connection, however attenuated,
sufficient to warrant detention? Can an individual be detained as an
enemy combatant if he or she has not committed any act that would
violate the law of war?
Al Qaeda members, for example, may commit acts of war, but not
every member of al Qaeda or an affiliated group necessarily will have
committed an act that violates the law of war. If an individual is
alleged to have ``supported'' or to be ``associated'' with al Qaeda, is
this sufficient to support detention? Or, must there be evidence as to
each that he or she actually engaged in combative acts to be so
classified? Who decides whether a person's actions support detention?
In what forum? Under what standards? How long can the person be
detained?
There are no easy answers to these questions. But, they must be
addressed by Congress as well as the executive. In the end, the
judiciary might well have to measure the answers given by its co-equal
branches against the requirements of the Constitution, but its work
will be demonstrably easier if the other two branches of government
have come to grips with the issues and have endeavored to resolve them
in a responsible manner consistent with the values for which America
stands and the international norms to which we have long been
committed.
At its 2002 mid-winter meeting, the American Bar Association
adopted a resolution urging the President and Congress to assure that
the President's November 13, 2001 Military order should ``[n]ot permit
indefinite pretrial detention of persons subject to the order.''
Permanent detention of persons against whom there is insufficient
evidence to prosecute or as to whom prosecution is impractical is cause
for much greater concern.
The ABA has not taken a position on what standards should be
applicable if non-citizens captured outside the United States are to be
detained as unlawful combatants. The question of whether a non-citizen
can be detained without prosecution raises a host of difficult issues.
There can be no denying their difficulty, but there can be no excuse
for Congress not facing them.
The ABA adopted a resolution in August 2002 with respect to United
States citizens and other persons lawfully in the United States who are
detained as enemy combatants. The resolution called for meaningful
judicial review and access to counsel in conjunction with the
opportunity for such review. The resolution also called upon Congress,
in coordination with the executive branch, to establish clear standards
and procedures governing the designation and treatment of U.S. citizens
and other person lawfully present in the United States as enemy
combatants. The ABA also urged that Congress and the executive consider
how the policies of the United States may affect the response of other
nations to future acts of terrorism.
In my opinion, Congress should examine all the standards and
procedures for detaining individuals as enemy combatants. In its
examination, Congress should ask the following questions as it seeks to
balance liberty and security interests:
1. Should the executive be permitted to detain individuals
seized as enemy combatants for extended periods of time?
2. Does it make a difference whether a seized individual is
an American citizen, whether a citizen was seized on foreign
soil or in the United States, and/or whether a citizen is
detained in the United States?
3. Who should make the initial determination that an
individual is an enemy combatant?
4. What standard of proof should be used to make the
determination? For example, should clear and convincing
evidence be required to detain an individual to protect society
(using the standard required for civil commitment of persons in
the United States, Addington v. Texas, 441 U.S. 418 (1979) )?
Does the individual have a right to counsel when the initial
determination is made?
5. Must an individual have committed a specific act in
support of terrorism, or should it be sufficient that a person
is found to be a member or supporter of a terrorist group?
Should any act, no matter how minor, be sufficient? Or, must a
showing be made that the person, if released, poses a genuine
threat to the United States, its people or its property?
6. If the initial determination that an individual is an
enemy combatant is not made by a court, should a detained
person have an opportunity for judicial review? If so, in what
court? Should Congress consider establishing a panel of Article
III judges to review detention decisions, or giving
jurisdiction to the United States Court of Appeals for the
Armed Forces to review the decisions? What provision for
counsel should be made in conjunction with judicial review?
7. How frequently should a detained person's status be
reviewed to assure that continued detention is required?
8. If a person was seized as part of the Afghanistan or Iraqi
military actions, when United States involvement in the
hostilities in those countries ends, must the person be
released? Does the war on terrorism justify continued detention
when military action ends?
9. Should the tribunal that decides to detain an individual
or a reviewing court be required to find that there are no
alternatives to detention that would adequately protect the
United States? If, for example, an individual is a citizen of a
country that offers to receive and monitor that individual,
should the person be released to that country unless a showing
is made that release would not adequately protect the United
States?
10. Should there be an outer limit on the length of detention
without prosecution?
The Supreme Court began to address some of these questions in Hamdi
v. Rumsfeld, 542 U.S. 507 (2004), but that decision addressed the
situation of an American citizen allegedly seized on the battlefield.
The Court required some procedural protections for Hamdi, but was
divided as to precisely what due process required. Because he was
released from custody, we do not know what process ultimately would
have been required. The fact that Hamdi provides only minimal guidance
and that the Court avoided the merits in Padilla leave open issues that
Congress should address. Ultimately, Federal courts will decide what
standards and procedures are required by the Constitution, but the
courts' task will be greatly eased if Congress and the executive
together can derive carefully tailored standards and procedures that
recognize the danger associated with detaining individuals for lengthy
periods without trial as well as the dangers of terrorism in the 21st
century.
IV. MILITARY COMMISSIONS
The military commissions which the President authorized and for
which the Department of Defense has planned have an historical
pedigree. Military commissions have been used to prosecute violations
of the law of war, and their use has been upheld by the United States
Supreme Court.
Military commissions existed during the Revolutionary War and have
continued to be used during various conflicts since. W.Winthrop,
Military Law and Precedents, (2d Ed., 1920 reprint) at 832. George
Washington ordered the trial of John Andre for spying by a ``Board of
Officers,'' which was a form of military commission. Id. The term
``military commission'' was used during the Mexican War, and by the
time of the Civil War was well established. Id. The jurisdiction of
military commissions has extended to trying individuals for violations
of the law of war and for offenses committed in territory under
military occupation
President Roosevelt authorized a military commission to try eight
German soldiers for war crimes after they smuggled themselves into the
country, hid their uniforms and planned sabotage. The Supreme Court
upheld their convictions and death sentences for six defendants in In
Ex parte Quirin, 317 U.S. 1 (1942). The Court specifically noted that
``[b]y the Articles of War, and especially Article 15, Congress has
explicitly provided, so far as it may constitutionally do so, that
military tribunals shall have jurisdiction to try offenders or offenses
against the law of war in appropriate cases.'' Id., at 28. The Court
distinguished between lawful and unlawful combatants: ``Lawful
combatants are subject to capture and detention as prisoners of war by
opposing military forces. Unlawful combatants are likewise subject to
capture and detention, but in addition they are subject to trial and
punishment by military tribunals for acts which render their
belligerency unlawful.'' Id. at 30-31 (footnotes omitted).
United States Army military commissions tried more than 1,600
individuals in Germany for war crimes after Germany surrendered.
Similar commissions tried almost 1000 persons in the Far East. Military
commissions also tried individuals, including U.S. citizens, for
ordinary criminal activity in the occupied territories. The Supreme
Court upheld the commissions' jurisdiction in these cases.
Citing Quirin in Application of Yamashita, 327 U.S. 1 (1946), the
Court upheld the jurisdiction of a military commission to try Japanese
General Yamashita for war crimes. The Court recognized that Congress
had sanctioned the use of the commissions: ``The trial and punishment
of enemy combatants who have committed violations of the law of war is
thus not only a part of the conduct of war operating as a preventive
measure against such violations, but is an exercise of the authority
sanctioned by Congress to administer the system of military justice
recognized by the law of war. Id. at 11.
Madsen v. Kinsella, 342 U.S. 341 (1952), upheld the jurisdiction of
a military commission to try a civilian U.S. citizen for the murder of
her U.S. serviceman husband in occupied Germany in 1950. The Court's
opinion discussed the history of military commissions.
The Court did not decide in Quirin or in the other cases whether
the President as Commander in Chief has inherent power to establish a
military commission, since Congress had authorized such Commissions.
The same remains true today. Congress has provided for military
commissions in the Code of Military Justice. In Quirin and other cases,
the Supreme Court had no occasion to decide what could be done with
unlawful combatants who are not tried or who are tried and acquitted.
Congress has taken no position on these issues either.
As noted above, if we are at war and war crimes are committed,
Article 21 of the Code of Military Justice recognizes the authority of
military commissions to prosecute those crimes. It is well established
that a deliberate attack on noncombatant civilians violates the law of
war. The customary law of war recognizes this principle and it is also
reflected in several conventions, such as Common Article 3 of the
Geneva Conventions of 1949, see, e.g., Convention Relative to the
Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, T.I.A.S.
3365, 75 U.N.T.S. 287.
The September 11 attacks were not the first by al Qaeda against the
United States. Al Qaeda was responsible for several earlier attacks;
the World Trade Center bombing in 1993: U.S. military barracks at
Khobar, Saudi Arabia, in 1996: U.S. embassies in Kenya and Tanzania in
1998; and the U.S.S. Cole in 2000. Thus, if the United States is in
armed conflict with al Qaeda, its use of military commissions to
prosecute violations of the law of war is consistent with the use of
such commissions from the founding of the Nation.
There are questions, however, about how far military commissions
can reach. The President's November 13, 2001 order applies to members
of al Qaeda, to people complicit in acts of international terrorism,
and to those who have harbored such persons. It is not clear that all
of these individuals participated in or are responsible for violations
of the law of war. Not all acts of international terrorism or support
for such acts constitute violations of the law of war. Congress may
wish to decide whether the jurisdiction of military commissions should
be expanded. But, I would urge Congress to consider the 2002 resolution
of the American Bar Association urging the President and Congress to
assure that the President's November 13, 2001 Military order should
``[n]ot be applicable to cases in which violations of Federal, State,
or territorial laws, as opposed to violations of such law of war, are
alleged.''
In addition to examining the jurisdiction of military commissions,
Congress needs to examine the procedures military commissions should
use. The American Bar Association's 2002 resolution urged the President
and Congress to assure that the President's November 13, 2001 Military
order should ``[r]equire that its procedures for trial and appeals be
governed by the UCMJ except Article 32 and provide the rights afforded
in courts-martial thereunder, including but not limited to, provision
for certiorari review by the Supreme Court of the United States (in
addition to the right to petition for a writ of habeas corpus), the
presumption of innocence, proof beyond a reasonable doubt, and
unanimous verdicts in capital cases.''
The procedures adopted by the DOD depart from the UCMJ and provide
fewer rights than are recognized in courts-martial. The exclusion of
the defendant from portions of the trial, the reduced evidence standard
set forth for the commissions, and the effort to limit judicial review
are among the controversial procedural provisions.
For example, the President's Military Order provided that, as to
individuals subject to it, ``military tribunals shall have exclusive
jurisdiction with respect to offenses by the individual''; and ``the
individual shall not be privileged to seek any remedy or maintain any
proceeding, directly or indirectly, or to have any such remedy or
proceeding brought on the individual's behalf, in (i) any court of the
United States, or any State thereof, (ii) any court of any foreign
nations, or (iii) any international tribunal.'' Notwithstanding the
Order, the Supreme Court has recognized the right of those detained at
Guantanamo to seek habeas corpus relief. Rasul v. Bush, 542 U.S. 466
(2004). This is not surprising, since the Court reviewed habeas corpus
petitions in Madsen, Yamashita, and Quirin. The scope of habeas corpus
review is not settled, however, since the Court in Rasul interpreted a
Federal statute which Congress could modify. Although the Rasul Court
distinguished the denial of habeas review of a military commission in
Johnson v. Eisentrager, 339 U.S. 763 (1950), it is unclear whether that
decision remains good law as applied to defendants prosecuted for war
crimes outside territory controlled by the United States. Congress has
the opportunity to clarify and define the reach of the Great Writ to
those detained as enemy combatants, whether or not they are prosecuted.
It is understandable why the President would find military
commissions preferable to prosecutions in U.S. civilian courts.
Security is the number one concern with two principal dimensions. The
first is a concern for the safety of judges, witnesses and jurors
(members). The second is a concern for protection of classified
information. It is the latter concern that has resulted in the adoption
of procedures for the tribunals that have led many to question its
fairness.
Concerns about security have led the DOD to impose restrictions on
civilian defense counsel in military tribunals that have made it
difficult for them to play the full role in promoting justice they
otherwise might. At its annual meeting on August 11-12, 2003, the ABA
House of Delegates passed a resolution calling ``upon Congress and the
executive branch to ensure that all defendants in any military
commission trials that may take place have the opportunity to receive
the zealous and effective assistance of Civilian Defense Counsel (CDC),
and opposes any qualification requirements or rules that would restrict
the full participation of CDC who have received appropriate security
clearances.'' The ABA further resolved that the government should not
monitor attorney-client communications, should assure that CDC can be
present at all stages of commission proceedings, and should ensure that
CDC should be able to consult with and do research in preparation for
proceedings and be able to speak publicly consistent with their
obligations under the Model Rules of Professional Conduct and their
duty to protect classified information. The ABA's resolution followed
an August 2, 2003, unanimous decision by the Board or Directors of the
National Association of Criminal Defense Lawyers (which cosponsored the
ABA resolution) that it would be unethical for a criminal defense
lawyer to represent an accused before military commissions given the
restrictions imposed upon defense counsel.
The decision to use military commissions to try individuals accused
of violating the law of war would have been much less controversial if
the ABA recommendations had been followed. If the procedure used in a
court-martial (with any essential modifications that might be required)
were used in military commissions, there would have been much more
confidence in the fairness of the proceedings. If the rules of evidence
used in a court-martial (with slight modification possible) were used
in military commissions, there would have been more confidence in their
fairness. If civilian judicial review were provided, the concern of
several of our important allies would have been satisfied.
The fairness of military commissions is not an executive issue; it
is a national issue. The credibility of the United States is at stake.
The jurisdiction, procedures and judicial review issues should be a
congressional concern. Congress, in consultation with the executive, is
capable of providing a system of justice which fair-minded observers
throughout the world will conclude is consistent with the highest
standards of fairness as measured against our own traditions and those
of the international community. The United States has seen itself as a
shining example of a country committed to the rule of law and due
process. The world watches to see what standards we set. As the ABA has
noted, our actions ``may affect the response of other nations to future
acts of terrorism.'' We have protested the use of military tribunals to
try our citizens in other countries. If the United States concludes
that such commissions can be fairly conducted and provide due process
to our enemies despite the fact that the accused is not given the same
access to counsel as in a court-martial or criminal trial, the rules of
evidence provide less protection than in a court-martial or criminal
trial, and civilian review is denied or extremely limited we shall be
hard pressed to argue that other countries are less capable or entitled
than we to use such commissions and to adopt similar procedures.
Congress has an important role to play as we define through our
actions for all the world to see what we think it means to do justice.
V. TREATMENT OF PRISONERS
No one event has called United States policy regarding and
commitment to humane treatment of prisoners into question as much as
the treatment of prisoners at Abu Ghraib prison in Iraq. Although there
have been allegations of prisoner abuse in Afghanistan and a number of
highly publicized allegations of alleged abuse of prisoners at
Guantanamo, Cuba, it is the pictures of American soldiers abusing
prisoners at Abu Ghraib that created an unmistakable impression on many
that our country was willing to use torture and/or other degrading
measures to interrogate and/or control prisoners within our custody.
The graphic depictions of misconduct and disregard for human dignity
requires a strong response by the United States to show the world that
Abu Ghraib is an aberration which Americans profoundly regret.
On August 9, 2004, the American Bar Association adopted an
extensive set of resolutions dealing with treatment of prisoners. I
recommend each of these to Congress and hope that the subcommittee will
give each serious consideration. The American Bar Association does the
following:
1. condemns any use of torture or other cruel, inhuman, or
degrading treatment or punishment upon persons within the
custody or under the physical control of the United States
Government (including its contractors) and any endorsement or
authorization of such measures by government lawyers, officials
and agents;
2. urges the United States Government to comply fully with
the Constitution and laws of the United States and treaties to
which the United States is a party, including the Geneva
Conventions of August 12, 1949, the International Covenant on
Civil and Political Rights, the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, and
related customary international law, including Article 75 of
the 1977 Protocol I to the Geneva Conventions, to take all
measures necessary to ensure that no person within the custody
or under the physical control of the United States Government
is subjected to torture or other cruel, inhuman or degrading
treatment or punishment;
3. urges the United States Government to: (a) comply fully
with the four Geneva Conventions of August 12, 1949, including
timely compliance with all provisions that require access to
protected persons by the International Committee of the Red
Cross; (b) observe the minimum protections of their common
Article 3 and related customary international law; and (c)
enforce such compliance through all applicable laws, including
the War Crimes Act and the Uniform Code of Military Justice;
4. urges the United States Government to take all measures
necessary to ensure that all foreign persons captured,
detained, interned or otherwise held within the custody or
under the physical control of the United States are treated in
accordance with standards that the United States would consider
lawful if employed with respect to an American captured by a
foreign power;
5. urges the United States Government to take all measures
necessary to ensure that no person within the custody or under
the physical control of the United States is turned over to
another government when the United States has substantial
grounds to believe that such person will be in danger of being
subjected to torture or other cruel, inhuman or degrading
treatment or punishment;
6. urges that 18 U.S.C. Sec. Sec. 2340(1) and 2340A be
amended to encompass torture wherever committed, and regardless
of the underlying motive or purpose;
7. urges the United States Government to pursue vigorously
(1) the investigation of violations of law, including the War
Crimes Act and the Uniform Code of Military Justice, with
respect to the mistreatment or rendition of persons within the
custody or under the physical control of the United States
Government, and (2) appropriate proceedings against persons who
may have committed, assisted, authorized, condoned, had command
responsibility for, or otherwise participated in such
violations;
8. urges the President and Congress, in addition to pending
congressional investigations, to establish an independent,
bipartisan commission with subpoena power to prepare a full
account of detention and interrogation practices carried out by
the United States, to make public findings, and to provide
recommendations designed to ensure that such practices adhere
faithfully to the Constitution and laws of the United States
and treaties to which the United States is a party, including
the Geneva Conventions, the International Covenant on Civil and
Political Rights, and the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, and
related customary international law, including Article 75 of
the 1977 Protocol I to the Geneva Conventions;
9. urges the United States Government to comply fully and in
a timely manner with its reporting obligations as a State Party
to the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment;
10. urges that, in establishing and executing national policy
regarding the treatment of persons within the custody or under
the physical control of the United States Government, Congress,
and the executive branch should consider how United States
practices may affect (a) the treatment of United States persons
who may be captured and detained by other nations and (b) the
credibility of objections by the United States to the use of
torture or other cruel, inhuman or degrading treatment or
punishment against United States persons.
I also recommend to you the Report accompanying these resolutions.
It identifies the issues that first arose as a result of the DOD
approving harsh questioning techniques in Guantanamo and the migration
of those techniques to Iraq. The Report describes the legal
justifications that were offered by the executive for its actions:
As the DOD and the Central Intelligence Agency (CIA) were
preparing and implementing their approach to interrogations, a
series of memoranda were being prepared by various high-ranking
legal officials in the executive branch which appear designed
to provide a legal basis for going beyond established policies
with regard to treatment of detainees. These memoranda set out
a series of arguments for restrictive interpretation of the
laws and treaties relevant to the subject, so as to greatly
curb their effect. One example, in the August 1, 2002
memorandum from the Department of Justice Office of Legal
Counsel to Alberto R. Gonzales, Counsel to the President
(recently rescinded by the Justice Department) concluded that
for an act to constitute torture as defined in 18 U.S.C.
Sec. 2340, ``it must inflict pain that is difficult to
endure'', ``equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of
bodily function, or even death.''
Beyond their strained interpretation of the law, the
memoranda attempted to craft an overall insulation from
liability by arguing that the President has the authority to
ignore any law or treaty that he believes interferes with the
President's Article II power as Commander in Chief. In one such
example, government lawyers argued that, for actions taken with
respect to ``the President's inherent constitutional authority
to manage a military campaign, 18 U.S.C. Sec. 2340A (the
prohibition against torture) must be construed as inapplicable
to interrogations undertaken pursuant to his Commander in Chief
authority.''
These documents, which were released publicly after they were
widely leaked, purported to provide authority for an aggressive
effort to extract information from detainees using means not
previously sanctioned. We do not construe the giving of good
faith legal advice to constitute endorsement or authorization
of torture. Moreover, it is unclear to what extent these
memoranda represented or formed the basis for official policy.
However, what does seem clear is that the memoranda and the
decisions of high U.S. officials at the very least contributed
to a culture in which prisoner abuse became widespread.
The administration has acknowledged that the conduct that was
featured in the Abu Ghraib tapes violated the law, and pledged
that those who committed the violations would be brought to
justice. In addition, at least six investigations are underway
with regard to the abuse of detainees. It is important these
investigations be thorough and timely, and that they be
conducted by officers and agencies with the scope and authority
to reach all those who should be held responsible.
Report 10B to House of Delegates at 3-4 (footnotes omitted).
I believe that the United States is as committed to the humane
treatment of prisoners as any nation, and the actions of some soldiers,
and perhaps even some commanders, are aberrational. But, there can be
little question that the image of this country throughout the world has
rarely been damaged more in a short period of time than by the photos
and stories about the treatment of the Abu Ghraib prisoners.
It is time for Congress to act and to make clear that the
Convention Against Torture And Other Cruel, Inhuman or Degrading
Treatment (CAT), to which the United States is a party, recognizes no
exceptional circumstances in which torture may be used, and that the
United States' ratification committed this country to reject cruel,
inhuman or degrading treatment if such treatment is prohibited by the
Fifth, Eighth or Fourteenth Amendments to the United States
Constitution (which we provided as a reservation when ratifying CAT).
Congress should make clear that it is a crime for an American soldier
or a contractor to torture prisoners, and should amend 18 U.S.C. 2340A
to encompass torture wherever committed and regardless of the
underlying motive or purpose. At the current time, the UCMJ prohibits
those covered from engaging in ``cruelty and maltreatment'' of
prisoners whether or not the conduct violates CAT. 10 U.S.C. 893. There
is no civilian parallel to the UCMJ provision. Although the ABA did not
recommend it, Congress might consider making it a crime for any person
to engage in ``cruelty and maltreatment'' of prisoners outside the
United States.
There has been much debate--more heat than light in many
instances--as to who is entitled to the protections of the Geneva
Conventions. Much of the world believes that there are no gaps in the
conventions and that all detainees are entitled to humane treatment
under Common Article 3 of the Conventions. ``Common Article 3''
provides that detainees ``shall in all circumstances be treated
humanely'' and prohibits the following acts ``at any time and in any
place whatsoever'': ``violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture;'' and ``outrages
upon personal dignity, in particular humiliating or degrading
treatment.'' Common Article 3 also provides that the ``wounded and sick
shall be collected and cared for.'' Article 75 of Additional Protocol I
protects all detainees captured in situations of either international
or internal armed conflict. Although the United States has not ratified
the treaty (nor has Afghanistan), it is generally acknowledged that
relevant sections of Protocol I constitute either binding customary
international law or good practice, in particular the minimum
safeguards guaranteed by Article 75(2). See Michael J. Matheson,
Remarks on the United States Position on the Relation of Customary
International Law to the 1977 Protocols Additional to the 1949 Geneva
Conventions, reprinted in The Sixth Annual American Red Cross-
Washington College of Law Conference on International Humanitarian Law:
A Workshop on Customary International Law and the 1977 Protocols
Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y
415, 425-6 (1987). Article 75 provides that ''persons who are in the
power of a Party to the conflict and who do not benefit from more
favourable treatment under the Conventions'' ``shall be treated
humanely in all circumstances'' and that each State Party ``shall
respect the person, honour, convictions and religious practices of all
such persons.'' Paragraph 2 of Article 75 prohibits, ``at any time and
in any place whatsoever, whether committed by civilian or military
agents'': ``violence to the life, health, or physical or mental well-
being of persons, in particular . . . torture of all kinds, whether
physical or mental,'' ``corporal punishment,'' and ``mutilation'';
``outrages upon personal dignity, in particular humiliating and
degrading treatment . . . and any form of indecent assault''; and
``threats to commit any of the foregoing acts.''
The U.S. rejection of Additional Protocol I was explained in a
presidential note to the Senate as follows: ``Protocol I . . . would
grant combatant status to irregular forces even if they do not satisfy
the traditional requirements to distinguish themselves from the
civilian population and otherwise comply with the laws of war. This
would endanger civilians among whom terrorists and other irregulars
attempt to conceal themselves. These problems are so fundamental in
character that they cannot be remedied through reservations. . . .''
See 1977 U.S.T. LEXIS 465. It is time for Congress to look at the
standards set by and relied upon by other civilized nations and to
provide that the United States will abide by the highest standards for
treatment of prisoners.
VI. CONCLUSION
In this testimony, I have had the chance to address use of military
commissions, detention of enemy combatants and treatment of detainees
in United States custody. I urge Congress to raise its voice as to
these issues. The executive has had little congressional guidance in
its efforts to deal with terrorism. Congress shares authority with the
executive when it comes to wars of all sorts, and it is time for
Congress to exercise its authority in cooperation and consultation with
the executive. It is not easy to fight any war, and the war on terror
poses unique challenges. We struggle to arrive at appropriate responses
to the challenges, and it is not surprising that we may make missteps
or falter from time to time. But, we do not struggle alone. Terrorism
has stricken Spain, England and other countries in addition to the
United States. The international community must fight the battle
together, and the United States must be a leader. To lead effectively,
however, we need to show the power of our ideas and our principles as
well as the power of our guns. We do this best when Congress is
actively involved with the executive setting standards for the United
States of which we and the world can be proud and holding us true to
them.
Thank you.
STATEMENT OF JOHN D. HUTSON, PRESIDENT AND DEAN, FRANKLIN
PIERCE LAW CENTER
Mr. Hutson. Thank you, Mr. Chairman. Thank you for the
opportunity to address the committee. I'll do what my
colleagues have done and ask that my written statement be made
a part of the record and try to bounce off what has already
been said by colleagues here in this panel and also earlier
today in the first panel.
I think we have a serious problem and you have the
opportunity to fix it if you care to take it. I would agree
that it is incumbent upon Congress to take this opportunity in
its oversight capacity. If there is one thing that's come out
clearly in the hearing today, the hearing yesterday and in the
lead up to all of this, it is confusion. I'd go back to the
word that you used at the very beginning, Mr. Chairman. I will
bet that if you ask the Attorney General of the United States
and Secretary Rumsfeld and Chairman of the Joint Chiefs and the
judge advocates general and all the senior people who have
worked on this issue to write down what their definition of a
combatant is, what they think the rules are that apply, to whom
they apply, where they apply, when they apply, you would come
up with as many different answers as you would ask the
question. If those people can't write it down, if they don't
understand it clearly, you surely can't expect the colonels and
the captains and the staff sergeants to understand that. If you
can't expect the staff sergeants to understand it, you're going
to have the kind of problems that we have seen.
Whatever it is we do, it has to be foolproof. We have to
keep it simple. We are talking about these issues in terms of
legal niceties and that's fine for law school, that's fine for
seasoned lawyers to try to do; it doesn't work on the
battlefield. The other thing about the legality issues here, is
I think that in many respects, it misses the more important
issues.
I like to think of the United States as being above the
law. Above the law in a sense that the law provides the floor.
The law provides, and we are in the basement at this point in
many respects, but the law provides the floor, and the United
States should be above that. We should be considering these
things not so much from a legal point of view as from a moral
point of view, a diplomatic point of view, what is right
militarily, what is right practically, what makes common sense,
what is going to work not only in this war but in the next war
and the war after that, because right now we are looking at it
in a very shortsighted way. We are trying to deal with the very
narrow immediate issue and not doing that very well, and we
have completely lost sight of what is over the horizon. I think
that's why the JAGs had a different point of view than the
political appointees because the policymakers were looking
immediately, the JAGs were looking over the horizon and trying
to figure out what is going to be best for the United States,
which is more forward deployed, past, frequent and future, than
all other countries combined in terms of numbers of troops
deployed, numbers of deployments and locations of the
deployments.
We are the ones who are running the risks here. It protects
U.S. troops now and in the future for us to come to some sort
of understanding about what the rules are going to be. Parsing
the convention against torture and the Geneva Conventions and
your points about how you identify the Taliban and al Qaeda
were right on the mark, Senator. It just don't work. It's
absolutely necessary that we straighten this out. What we need
to say is they may be terrorists, they may be evildoers, but
they are human beings and we are Americans and we will treat
them with the dignity and respect that Americans should always
treat human beings, simply by virtue of their humanity.
Then in doing that, we can fix the military commission
process. I was an early and ardent and vocal supporter of
military commissions. I think they can be fixed. We can fix the
interrogation policy, we can enact the Army field manual so
that it applies to every person, every place, in every
interrogation. We can do the things that are necessary for
history, when they write the chapter, treatment of detainees in
the book on the war on terrorism, the end of the chapter will
be better than the beginning of the chapter. Thank you, Mr.
Chairman. I look forward to your questions.
[The prepared statement of Mr. Hutson follows:]
Prepared Statement by John D. Hutson
When historians write the book on the war on terrorism, there will
be a chapter entitled ``Treatment of Detainees.'' The first part of
that chapter has already been written and it's not pretty. We don't yet
know how that chapter will end. Fortunately, we have the opportunity--
you have the opportunity--to write that ending.
At first blush, the issues are primarily legal in nature. Some have
already been litigated and decided by courts. I believe that while the
issues are legal in the first analysis, there are other ways to
consider them, that in the end, are even more profound--moral,
diplomatic, military and practical aspects must be considered. The
legal analysis provides the floor, but the United States should strive
for higher aspirations.
I want to make three points today. The first is to call for a limit
on the duration of detention. The second is to urge that we either fix
military commissions or use courts-martial to prosecute detainees.
Finally, that we enact the provisions of the Army Field Manual relating
to interrogation into law.
We have a very difficult problem with regard to the duration of the
detention of those whom we have captured or who otherwise have been
turned over to coalition forces. As has been often noted, this war
won't end soon, and we may not even know when it's over. It likely will
simply peter out someday and the end will be marked only by the passage
of time. This uncertainty is exacerbated by the nature of the enemy. As
has also been noted, he doesn't wear a uniform and isn't necessarily
part of an army organized in a familiar manner. He is half civilian and
half military and moves stealthily between those two worlds. He is not
easy to identify. The flip side of this confusion is that true
civilians can also be easily mistaken for enemy combatants.
This conundrum creates problems for detention policy. I believe we
should place a reasonable time limit on the duration of confinement
without a trial. If the war lasts 5, 10, or 20 years, we simply can't
confine people for that long without a resolution to their confinement,
especially if we aren't absolutely sure of their status. We haven't
done that in prior wars, and we mustn't do it now in this war.
Throughout history, the law of war has moved inexorably towards a
higher level of civility. We can't be the Nation to take a step
backwards.
At the end of that reasonable length of confinement, if they have
not been prosecuted, they must be released to their country of origin
absent a showing by the government that their continued detention is
imperative. That showing could be based on their continued intelligence
value or because of demonstrated threat to the security of the United
States or our allies.
The government would bear a heavy burden. It would have to meet a
high standard. A burden of proof such as beyond a reasonable doubt or,
perhaps, by clear and convincing evidence, would have to be met. That
standard would have to be achieved by articulable, specific evidence.
Conjecture, opinion, rumor, or over-caution would not suffice.
I'm not sure about the forum. U.S. District Court or a specifically
designated panel of jurists would work. There may be other
alternatives. Whatever the duration of confinement, burden of proof,
admissibility of evidence or forum, they must all be reasonably
acceptable to the international community. If they are not, history
will not be kind to us.
Now, turning to the prosecutions themselves. I was an early,
ardent, and vocal supporter of military commissions as the appropriate
forum. I still believe they can be fair, legal, and generally accepted
by all but the most persistent naysayers. If done properly, they are
historically founded, practical, and make sense. It is appropriate for
military personnel to try their enemy by military commissions.
All of that said, although I don't necessarily agree with it, I
understand the point of view of the critics who say that the commission
process is now so flawed and maligned that we should simply start over.
I should add, not quite as a parenthetical, that as a former Navy judge
advocate for 28 years, I am pleased and proud, but not surprised by the
strong advocacy of detailed military defense counsel in these cases.
These are not popular cases, but they have served admirably.
For the success and viability of commissions, the devil is in the
details. They aren't legal, they aren't appropriate, and they aren't
practical, if they are done badly. They have to be accomplished
reasonably promptly. The defense counsel must have reasonable access to
their clients. Defense counsel must be able to confer with their
clients in confidence. There must be a just review process. In summary,
they must be fair and be perceived to be fair.
The Geneva Conventions require that military commissions
approximate the same procedures by which we prosecute our own troops.
That implicates the courts-martial system contained in the Uniform Code
of Military Justice (UCMJ) and the Manual for Courts-Martial.
Consistency is a virtue, but it can also be the hobgoblin of small
minds. We're the United States of America. If we decide in our might
and wisdom that we need to make a course correction, we can do that.
Knowing what we now know, perhaps we might decide to use the UCMJ and
MCM for prosecuting enemy combatants. It's a tried and true system. All
we really would need to do is relax the rules of evidence a bit to
accommodate the reality of battlefield operations, understanding that
evidence is being gathered by soldiers, not police detectives.
Finally, let me speak briefly about interrogation policy. We are
all patriots here. We wouldn't be here if we weren't. I don't mean to
preach but some of these things can't be said too often. I like to
think of America as being above the law. By that I mean that the law
provides a floor below which no nation may descend. But the United
States . . . the United States should soar above that. The law says we
can't torture people. The law says we can't treat them cruelly, or
inhumanely, or degrade them.
I say they may be terrorists, they may be evil, but they are human
beings and we're Americans and we should treat them with the dignity
and respect that Americans should always treat all human beings by
virtue of their humanity. I urge you to put the Army Field Manual into
law for all U.S. agencies.
I understand and appreciate the need for the enemy to not know the
limits of interrogation techniques. On the other hand, and more
importantly, Americans and the community of nations must have
confidence that we won't abuse people in our custody no matter what
their status.
Our greatest strength as a nation is not our military might,
awesome as it is; it's not our strong economy, natural resources or
even our historic individual spirit. Our greatest strength is the
rightness of our cause. For generations, Americans have stood tall for
the Rule of Law and in support of human rights. That's our strength;
that's why other civilized nations look to us for leadership and then
follow that lead. If we lose that, we will have lost our greatest
weapon.
On the other hand, the enemy's only weapon is terrorism. The true
object of that weapon isn't so much human life or undermining our will
to resist, as much as it is an effort to make us more like them. We
must resist that at all costs. If we let that happen we will have lost
the war. We will have lost our National identity. We must not take that
fateful step down the slippery slope from the high road to the low
road.
The Army Field Manual stands as a bulwark against that temptation.
By enacting into law the interrogation techniques found in the current
Army Field Manual for all U.S. interrogators, we will take a huge step
in the right direction. It won't make us weaker, it will confirm our
power for all to see and protect U.S. troops now and in the future.
As I stated early in this testimony, the important issues are
legal, to be sure. But they are more than that. They have profound
moral, diplomatic, military, and practical implications. How we are
viewed by history and the community of nations, how we feel about
ourselves, and how history treats us may in large part be determined by
what you do, or don't do, now.
In summary, I urge you to place a reasonable limit on the duration
of detention for enemy combatants absent a specific showing for the
need for continued confinement. I urge you to either fix the Military
Commission process or ensure cases are referred to the equivalent of
courts-martial. Finally, I urge you to enact the Army Field Manual for
all interrogations, regardless of location, the interrogator, or who is
being interrogated.
Senator Graham. Excellent, each of you. Thank you very
much. Now, I know why I didn't get a more definite answer to
the question would statutory definitions have a preferred
position in the court than the current situation. Because there
is a political component to this. Mr. Barr, I know that every
executive branch legal advisor and every representative of the
executive branch is very cautious about ceding authority,
particularly when it comes to matters of war, and I don't think
anyone up here wants to micromanage this war. But it is unique
and it has taken us to a place far beyond six saboteurs in
World War II.
I have to completely buy into the idea that enemy combatant
status with an indeterminate amount of time is a legally
correct position, and will enhance our national security. The
problem I have is that the enemy combatant status that we are
currently using is in court, being challenged, with a never-
ending process ahead. But it goes back to what you said, Mr.
Hutson. We'll be stronger if we are together, and I do believe
there is a willingness of Congress and I may be wrong, it may
fall apart, for all of us to come together working with the
executive branch to define enemy combatant status in the most
flexible way possible, but give it a congressional blessing.
Mr. Barr, do you believe that if we did that we would be
stronger legally and be more united as a country?
Mr. Barr. In general, when Congress supports executive
power and they're acting together, that does strengthen the
hand of the Government, obviously, but as I said earlier the
definition of military combatant is not the issue. The thing
that's going to cause problems is the extension of habeas
corpus to foreign prisoners of war. I believe American citizens
should be treated differently and I believe that they do have
the right of habeas corpus.
Senator Graham. Statutorily could we address that problem
and fix it?
Mr. Barr. Yes. That' s what Scalia was talking about.
Senator Graham. That's what he's yelling at us to do.
Mr. Barr. The first time in history, Under British habeas
corpus, the idea of using a writ of habeas corpus for a foreign
prisoner of war was an absurdity, and it was never recognized.
But the Supreme Court here said well, this statute sort of
makes us do it. That's an area that I think should be
addressed.
The second issue that's going to cause difficulty no matter
how these definitions are made is whether or not the court is
going to say for the first time in history that a foreign
person outside the United States who has no connection with the
United States other than they are confronted by our troops, has
due process rights. That is contrary to the existing law and if
they go that far, then no matter how we define these terms it's
going to mean judges supervising this thing. Now the fact that
one district court judge doesn't like the definition of
military combatant, to me is irrelevant. There are so many
district court judges now you can get anyone to say anything. I
think the D.C. Circuit is going to rule on that, and I think it
will be straightened out.
Senator Graham. The bottom line, the habeas route, we are
going into a situation where courts will have a great say about
how to fight this war. Scalia is saying we are ill equipped to
do that, would you please get involved and help us, Congress?
That's what this is all about. The invitation is out there to
the administration. I hope they will take us up on it because I
believe, as Senator McCain has stated, that we have an
affirmative duty to do so.
Now, when it comes to military tribunals, clearly everybody
in the panel has bought off on this. Critics of military
tribunals have their right to be critical, but there is a rich
legal history that the military tribunal system works and is an
acceptable manner of delivering justice. Do you believe that if
the military tribunal system were codified, it would be an
advantageous position for that system in our current Federal
court system?
Mr. Barr. First, I believe military commissions as opposed
to court-martials are common law courts that exist because they
are supposed to be adaptive to the exigencies of the
circumstance. That's why I think inherently they have to be
flexible tools. So I would be concerned about anything that
tries to lock in a particular set of rules.
Could I give one example? After a war, after we have won,
it may be one thing to show classified information or provide
for a right to confront all of the evidence against you,
because we've won the war. We don't care if Speer finds out
something about our military plans. But right now we are in the
middle of this confrontation, and allowing people to see
classified information is something we shouldn't accept.
Senator Graham. All due respect, we have a military legal
system, the UCMJ, which is statutory, and we have the Manual
for Courts-Martial which is the implementing directive of the
executive branch.
We deal with classified information in court martial
proceedings all the time. I don't think that's a problem
because no one here wants to use the military tribunal
commission system to hurt the Nation's security.
All I'm suggesting is that the current attacks on the
military commission that are now in court are never ending. One
way to bring closure would be to give a statutory blessing to
the concept, tweak it a bit. My question again is would that
help in terms of the status of the military commission legally
with Congress getting involved?
Mr. Barr. Well, I think you might be in a situation where
judges might accept it more. But I don't think the executive
would, unless it allowed the discretion to adapt proceedings to
specific circumstances.
Again, the court martial system that we have applies to
American troops, people that are part of our political
community, and I have no problem with those procedures. But
providing all the same protections to a member of a hostile
force during the confrontation, it's just----
Senator Graham. I'll take another stab at this. I
understand what you're saying. But the current system is going
to be in litigation for a while to come. General Hemingway gave
a best case scenario. I think we're going to be months or years
before we get this thing figured out about enemy combatant
status. We're going to have a lot of judges speaking about what
they like and don't like about military tribunals.
I'd like to close that down, come up with a system that is
not a threat to the country, is not a Federal court system, is
not UCMJ, but a hybrid that deals with realities of the war on
terrorism. But it's codified, that will be more deferred to by
the courts and we'll have two branchs of government, as you
said. That's my goal.
I'm going to now turn it over to Senator Nelson, but you
have been very helpful. The idea, I'll put this on the record,
I have crossed the Rubicon in this regard. I do not believe it
is responsible for this country, legally or politically, for
Congress to sit this out. If we can come up with congressional
involvement that makes it stronger, not weaker, that allows us
to get good intelligence, it allows us to detain people who
deserve to be detained for an indeterminate period of time, and
allows people to be prosecuted in a way where it will stick.
The way to have that legal breakthrough occur soon rather
than later is for Congress to get involved.
Senator McCain.
Senator McCain. I thank you, Mr. Chairman. Very briefly and
I appreciate you allowing me just to comment. Mr. Barr and Mr.
Saltzburg, Mr. Hutson has suggested that the Army field manual
apply to all detainees, is that correct?
Mr. Hutson. Yes, it is.
Senator McCain. Do you agree with that, Mr. Saltzburg?
Mr. Saltzburg. I think so.
Senator McCain. How about you, Mr. Barr?
Mr. Barr. I agree that we are bound to treat all detainees
humanely.
Senator McCain. Please, Mr. Barr----
Mr. Barr. Which as I understand----
Senator McCain. If you say you don't want to answer the
question, that's fine.
Mr. Barr. No, that's not what I'm saying.
Senator McCain. The question is, should the Army field
manual apply to all detainees or not?
Mr. Barr. Well, no, the Army field manual applies to people
that are covered by the--given the privileges of the Third
Geneva Convention, no. To the extent that it says that all
detainees should be treated humanely, even if they're not
covered by the Third Convention, I agree with that too.
Senator McCain. Because you feel that part of the
Constitution has become irrelevant as far as Congress is
concerned is not something that I agree with. It still says
make rules concerning captures on land and water. Until we
amend the Constitution because of its irrelevancy, I will use
that as a reason for Congressional involvement.
I guess my only other question, Mr. Hutson, you were one of
the uniformed JAGs at the time that the initial set of rules
were formulated, isn't that correct, which were later
rescinded?
Mr. Hutson. No, sir. I retired in 2000. I preceded that.
Senator McCain. It was my understanding that the uniformed
JAGs disagreed as, I think, Mr. Saltzburg mentioned in his
opening comments. All the uniformed people disagreed with the
civilian policy that was articulated, that was put into effect,
is that correct, do you know?
Mr. Hutson. I can't say that all of the uniformed people
did, but I know that there was a great deal of disagreement
between the two groups indeed. In fact, the uniformed people
were struggling to find avenues to vent their disagreements.
Senator McCain. I thank you. Mr. Saltzburg, it's a small
point, but many of our American soldiers in Afghanistan that
were fighting there were not wearing a uniform. So according to
at least some interpretation of the treatment of these
prisoners because they were not wearing a uniform then
therefore they are not eligible for the Geneva Conventions. So
I just say that as an aside.
I, like you, am very concerned about the next conflict in
which American fighting men and women may become captive. Right
now, I think it would be difficult for us to assert as we did
vociferously--and by the way, Mr. Barr, we are still at war in
Korea, there was a cease-fire, but we are still at war.
Mr. Barr. Cease-fire means you're not still at war.
Senator McCain. Yes, we are, in a state of war.
Mr. Barr. But I disagree with you that we have soldiers in
our military fighting out of uniform in Afghanistan.
Senator McCain. You disagree we have soldiers fighting out
of uniform in Afghanistan.
Mr. Barr. I think there may be intelligence operatives who
are operating who are not wearing military uniforms, yes.
Senator McCain. That's Special Forces. Wrong again. I'm
sorry. Well, anyway. But I guess my point is that without the
kinds of behavior that you articulate, Mr. Saltzburg, I'm
afraid that it would give our enemies some excuses which they
may or may not have had anyway to mistreat our American
fighting men and women when they fall prey to them.
Again, we are still in a war in Korea, it's a cease-fire.
If we are going to use that criteria, then I think many of our
detainees would die of old age. I thank you, Mr. Chairman.
Senator Ben Nelson. Thank you, Mr. Chairman. Admiral
Hutson, I think you probably heard the distinction between how
we might deal with prisoners or detainees in Iraq and those
that are taken just in the general war on terrorism.
In trying to deal with status and treatment, the question
of duration of detention is significant. Obviously, I think we
must deal with that. Is there any clarification that you might
be able to provide for us on that?
Mr. Hutson. I'm not sure I can clarify it. I would urge
Congress and the administration to consider putting a
termination on the duration of detention for most of the
prisoners. I think that it's just not possible for the United
States to hold people, and we are not talking about Speer or
Hess particularly, we are talking about chauffeurs and people
like that, indefinitely.
The war on terrorism is going to go on, as we have all
agreed, and we all understand, for a long time. At some point,
it's just going to sort of peter out and will end by the
passage of time. There is going to be no surrender on the deck
of the U.S.S. Missouri in the war on terrorism.
So that I think we have to decide how long we can
reasonably detain people, if no charges have been brought. We
have not prosecuted them. We are just holding on to them until
the end of the war as Senator McCain points out. I think you
have to have an out. I think that the administration has to be
able to demonstrate that the continued detention of a
particular individual is necessary because of the great
intelligence value that they may continue to have or because
they continued to be a threat to the United States or to our
allies.
But that determination has to meet some sort of standard. I
think that there are a number of ways you could do it, and the
tribunal would certainly be one. A specially designated panel
of judges. But there would have to be a standard. There would
have to be evidence. It couldn't just be conjecture, rumor,
innuendo, or over caution.
Senator Ben Nelson. But there is some value in detaining
these individuals for some significant period of time if they
represent a particular threat, if by releasing them they go
back to do battle against us or to do further harm, or if they
represent a fundamentally important part of our intelligence
gathering operation as an important source for intelligence
information.
Mr. Hutson. I couldn't agree more, Senator, that it would
be incumbent upon us to continue to detain for as long as
necessary people that fit into those categories that you
enumerate. But that for a large number of people, I think I
understood the testimony earlier today to be that the annual
review boards had released four people. We have 13,000
detainees involved around the world right now.
We can't just hold them until 25 years from now we say, oh
yes, remember the war on terrorism, I guess it's over.
Senator Ben Nelson. What would you do with those detainees
if their country of citizenship doesn't want them back? What do
we do there?
Mr. Hutson. Good question.
Senator Ben Nelson. I thank you very much for your
enlightenment. I think you're helping us go down the road to
progress here, and we appreciate it very much.
Senator Graham. I want to thank you all. I just want to
wrap this up quickly. The current legal environment we have is
we are on appeal now, I think the Court of Appeals, regarding
the military tribunal system, that is correct?
Mr. Barr. Yes, Senator, Hamdi, which was a chauffeur.
Senator Graham. You were right about Hess. We didn't
prosecute him until after the war. But I think this is a
different war. I think it is very important that this country
send a signal to all wannabe terrorists, you are either going
to get killed, or you are going to get captured, and be held
accountable.
The quicker we get on with holding people accountable, I
think the safer we'll be. Mr. Barr, worst case scenario, or
best case scenario, how long do you think it will take the
current legal situation to resolve itself regarding
prosecution?
Mr. Barr. I think probably within a year we will be able to
complete the first prosecution. If I could, Senator, that last
line of questioning from Senator Nelson, as you recognize in
your opening statement, there are two different issues here.
One issue is detaining someone, not punishing them, but
just detaining them. The other issue is trying those people
that we want to try before a commission for war crimes.
I agree with what you said about let's get on with that.
But on the issue of detention, we shouldn't act as if there is
not a process in place. For the first time in history, we are
permitting adversary proceedings, legal representatives, a
preponderance of the evidence standard for these people to have
their day in court to be held. That's never been done before
and that's a recognition of the kind of war we are fighting.
Senator Graham. I'll be honest with you. I don't have a
desire to fundamentally change things. I just want to get a
statutory blessing to it, tweak it to make sure it does pass
scrutiny. There will be some people who are not subject to
prosecution for different reasons. Maybe you don't want to go
through the exposure of a trial, maybe it's not exactly the
venue for them. They should be kept for a long time, Mr.
Hutson, because this war will go on for a long time.
But the due process involved is the check and balance. An
enemy combatant legally can be held, I think, for an
indeterminate period. Now, that decision has to be made in
accordance with who we are as a people, and it has to be made
in light of the fact that we are a rule of law nation.
I stand very firmly with the idea that holding enemy
combatants for a long period of time is in this Nation's
national self-interest. I just hope we can make the process
more acceptable to our legal system and abroad. What about you,
Mr. Saltzburg?
Mr. Saltzburg. I actually think that if you enacted
legislation, you would moot the Hamdi case.
Senator Graham. I totally agree----
Mr. Saltzburg. Otherwise, I think it's fairly likely that
the Supreme Court would grant review. I mean, one of the things
we should not lose sight of is that Hamdi was closely divided
with a plurality plus two, the author of the plurality opinion
has resigned or announced her resignation from the Court. We'll
go through a replacement process. We know the Chief Justice is
ill. We don't know what will happen. He was part of the
plurality.
So that if you ask what the end result will be, even after
a year is up, I agree with Attorney General Barr, a year may be
a good estimate. Sometimes the Supreme Court gives us less
certainty after it decides than before, which is part of the
problem. I think Hamdi's an example.
I'd just like to say one other thing if I could. That is,
Senator Graham, you mentioned the third part of what we are
really after here, the hearts and minds.
Senator Graham. That's very important.
Mr. Saltzburg. I would really urge the subcommittee and I'd
urge the committee not to treat the decision about what
processes are due and so on solely based on how the United
States looks at this right now.
We are not in this alone. What happened a week ago in
London reminds us that this al Qaeda threat, this terrorist
threat, is not just against us, we are just the biggest target.
It's against everything we stand for, and everything that
western democracies believe in. I think this picks up Senator
Nelson's question, it's a very serious matter of saying if we
are going to release somebody, where?
I mean, the world has to look at this together; we need to
know what our allies think about how long somebody should be
detained, because they don't want us to be releasing these
people. Then if we're going to release them, how? How is it to
be done? I think some input from allies who are just as
concerned as this country is, and they have reason to be, would
actually benefit our thinking.
I don't think, by the way, you'd find them less supportive.
I think you'd find that the shared concerns you've heard today
are shared not just within our borders but they are shared
around the world. I think we haven't reached out enough.
That's been part of our problem. That we, in winning the
hearts and minds, we have to win the hearts and minds of the
American people and persuade them that we're true to our own
values. Because of some of the mistakes that have been made,
because of Abu Ghraib, we have to do a better job of convincing
the world--that the standards that Dean Hutson said--that we
are still committed to the highest standards, and that we are
still the leader.
I think some contributions from some other countries that
share problems with us about how we ought to go would probably
not be a bad thing for this committee to really consider.
Senator Graham. That's very well said. If you could get the
executive, legislative, and judicial branches signing off on
what is going on at Guantanamo Bay, and making it a very good
place to detain people, to keep them off the battlefield, a
place to get good intelligence, be aggressive, a place to
prosecute the worst of the bunch, I think we are safer. I think
it does change world opinion of that.
What is your belief, Mr. Hutson, about how long it will be
before we get legal answers to these questions?
Mr. Hutson. Predicting judicial speed is very dangerous.
That's almost as bad as predicting what the jury's going to do.
But I think that a year or 2, probably, depending on what the
Supreme Court does or doesn't do.
Senator Graham. Well, I will be working as diligently as I
can with other members of the committee to come up with some
statutory definitions that meet, I think, most of your goals,
Mr. Barr. We may have a philosophical difference about how to
do this, but your concerns are legitimate. We need not have
statutes that lock us down. We need to have statutes that free
us up, and let us really get on with fighting this war in the
most effective way.
I think Guantanamo Bay's potential is not being reached
from a national security perspective. I think we could do more
with the place if we had more buy into it. I really do worry,
gentlemen, about this war being managed by a series of legal
decisions from different venues that will create stagnation and
create image problems and the Court is not equipped to do this.
I think they are telling us that.
Some judges will take us up on it, Mr. Barr, they will
certainly take us up on it. If we are going to fight this war
the way we need to fight it, the more elected official
involvement, the better, and God bless. Thank you for coming.
We will be back with each of you about how to do this. Thanks
very much.
[Questions for the record with answers supplied follow:]
Questions Submitted by Senator John McCain
DETAINEE HEARINGS
1. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General
Hemingway, I understand that, of 520 individuals at Guantanamo (Gitmo),
just 12 have been deemed suitable for military commissions. I
understand that we have the legal right to detain the rest of them
until the end of hostilities, but since there is no foreseeable end to
the war on terrorism, what is the plan for those not receiving a
hearing before the military commission?
Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. Although we
anticipate that a significant number of enemy combatants held at
Guantanamo will face trial by military commission, many will not. Among
those who may not be tried by a military commission are individuals who
are either providing actionable intelligence through interrogations, or
are still considered a threat to U.S. forces on the battlefield. Some
of them may not have committed law of war violations or other crimes.
These individuals will be held until the end of the conflict or until
they are determined no longer to be a threat to U.S. forces by the
Designated Civilian Official, acting on a recommendation from an
Administrative Review Board (ARB).
The ARBs were established in order to review the case of every
detainee annually. The ARB assesses whether an enemy combatant should
be released, transferred, or further detained.
During the review, each eligible enemy combatant is given the
opportunity to appear in person before an ARB of three military
officers and provide information to support his release. The enemy
combatant is provided with a military officer to assist him. In
addition to information provided by the enemy combatant, the ARB
considers written information from the family and national government
of the enemy combatant and information provided by DOD and other U.S.
Government agencies. Based on all of the information provided, the ARB
makes a recommendation to release, transfer, or continue to detain the
individual.
The process to release a detainee is completed only after the U.S.
Government receives appropriate assurances that the receiving
government will not torture the detainee and will continue to treat the
detainee humanely, consistent with the country's international legal
obligations.
As of March 2006, 267 detainees have been released or transferred
to their home countries: 187 have been released, and 80 have been
transferred to the control of other governments (Denmark, Pakistan,
Morocco, France, Russia, Saudi Arabia, Spain, Sweden, United Kingdom,
Kuwait, Australia, and Belgium). In regard to Iraqi and Afghan
nationals, we are working with other U.S. Government agencies to help
Iraqi and Afghan authorities assume responsibility for detention
operations in their countries.
DETAINEE APPEALS
2. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General
Hemingway, under Department of Defense (DOD) rules for military
commissions, defendants will lack an independent appeal--they can
appeal up the chain of command within DOD but not to U.S. Federal
courts or to the U.S. Court of Appeals for the Armed Forces (a civilian
court independent of the executive branch that handles appeals from the
courts martial). Could you explain the rationale behind this decision?
Why not permit an appeal to the U.S. Court of Appeals for the Armed
Forces? Please explain your answer fully.
Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. The Review
Panel process provides for an independent review of the decisions of
the Military Commission. By design and implementation, the Review Panel
is composed of senior jurists with impeccable credentials and judicial
experience. The current group of panel members was specifically chosen
for their proven track record of making difficult decisions on unique
and difficult questions of law--the very kinds of questions that they
will face when deciding Commission questions involving the interplay of
the law of war, military law, and applicable international law .
Under the Detainee Treatment Act, the United States Court of
Appeals for the District of Columbia Circuit has jurisdiction to
determine the validity of any final decision of a Military Commission.
Review is required in capital cases and cases in which the defendant is
sentenced to a term of imprisonment of 10 years or more; in all other
cases, review is at the discretion of the Court. The jurisdiction of
the Court is limited to the consideration of (i) whether the final
decision was consistent with the standards and procedures specified in
the Military Commission Order No.1, and (ii) to the extent the
Constitution and laws of the United States are applicable, whether the
use of such standards and procedures to reach the final decision was
consistent with the Constitution and laws of the United States.
The Court of Appeals for the Armed Forces is an Article I appellate
court with jurisdiction limited to certain courts-martial cases with
significant sentences. See Clinton v. Goldsmith, 526 U.S. 529, 540
(1999). Expanding the Court of Appeals for the Armed Forces'
jurisdiction to include military commissions would blur important
distinctions between courts-martial and military commissions.
The independence of military commissions and courts-martial is
protected primarily by Article 37, UCMJ, 10 U.S.C. Sec. 837, which
prohibits unlawful command influence with respect to courts-martial and
other tribunals, such as military commissions. Violations of Article
37, UCMJ, are punishable under Article 98, 10 U.S.C. Sec. 898, by up to
5 years of confinement and a dishonorable discharge. See Weiss v.
United States, 510 U.S. 163 (1994).
The military commission process was established by the President
pursuant to the authority granted to him under the Constitution and the
Authorization for Use of Military Force, Public Law 107-40, 115 Stat.
224. The decision on who is subject to trial by commission, the rules
that govern the commissions, and the procedures for review of
commission decisions are an executive branch function performed
pursuant to this authority.
UNIFORM CODE OF MILITARY JUSTICE
3. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General
Hemingway, the Pentagon made a decision to start from scratch and
develop an entirely new system of military commissions, one that has
run afoul of the U.S. court system. One effect of this has been that we
have yet to bring even one terrorist to trial, nearly 4 years after
September 11. Would it not be simpler, easier, and better to use the
Uniform Code of Military Justice (UCMJ)?
Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. On November
13, 2001, the President directed the establishment of military
commissions to conduct criminal trials of those suspected of having
committed war crimes. It would not be simpler, easier, or better to use
the court-martial process authorized by the HCMJ. Rather, as the
President directed, military commissions, as recognized by the UCMJ,
provide the appropriate forum for the disposition of the allegations of
war crimes committed by enemy combatants arising from the Global War on
Terrorism. There are many provisions of the UCMJ applicable to courts-
martial that would be inappropriate or unacceptable to apply in
military commission trials of detainees at Guantanamo Bay, Cuba,
including, but not limited to, the speedy trial provision (Article 10),
the criminal rights warning requirements (Article 31(b), the extensive
pretrial investigation hearing process (Article 32), equal opportunity
to obtain witnesses and evidence regardless of any pertinent security
classifications (Article 46), and extensive post-trial review and
appeal procedures (Articles 59-76).
Additionally, many UCMJ provisions have been interpreted by
military and Federal courts to apply, with some exceptions, the full
range of protections afforded persons under the Constitution of the
United States. Such U.S. Constitutional safeguards should not be
extended to the trials of enemy alien combatants for violations of the
law of war.
Finally, the UCMJ (Article 36) provides for the use of rules of
evidence in courts-martial that, so far as the President determines
practicable, apply the principles of law and rules of evidence
generally used in criminal trials in United States district courts.
Courts-martial use Military Rules of Evidence that are modeled after
the Federal Rules of Evidence. Both of these sets of evidentiary rules
would have to be modified significantly for use in military
commissions. For example, these rules do not permit the admission of
hearsay evidence, unless an exception to the hearsay rule exists.
Therefore, they do not address adequately the unique challenges
presented by a battlefield environment that is fundamentally different
from the traditional law enforcement rubric applicable during peacetime
in the United States.
Throughout American military history, hearsay evidence has been
admissible in military commissions. In the Seminole War, hearsay
evidence was admitted in military commissions to try British subjects
for inciting and aiding the Creek Indians in warring against the United
States. See Louis Fisher, Congressional Research Service, Military
Tribunals: Historical Patterns and Lessons, 8-11 (2004).
During the Civil War, a military commission admitted hearsay
evidence in the trial of Captain Henry Wirz for the atrocities
committed against Union prisoners of war at the. Andersonville prison.
Lewis Laska & James Smith, ``Hell and the Devil'': Andersonville and
the Trial of Captain Henry Wirz, C.S.A., 1865, 68 MIL. L. Rev. 77, 118
& n.128 (1975) (e.g., a witness who did not observe an alleged murder
was permitted to testify that he heard another individual identify
Captain Win as the gunman).
During World War II, hearsay evidence was admitted in the military
commission. that tried Japanese General Yamashita for war crimes
committed while defending the Philippine Islands. See In re Yamashita,
327 U.S. 1, 18-19 (1946). Similarly, the military commission that tried
Japanese General Homma for war crimes related to the infamous Bataan
Death March considered hearsay evidence. Major William H. Parks,
Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, 75 (1973); In
re Homma, 327 U.S. 759, 760-61 & n.1 (1946).
Internationally, it is well settled in the International Criminal
Tribunals for the Former Yugoslavia and Rwanda (ICTY/ICTR) that hearsay
evidence is admissible. Rules 89(c) and 89(d) of the ICTY Rules of
Procedure and Evidence (RPE), read together, provide guidelines for
admissibility of evidence based on relevance and probativeness, subject
to exclusion to ensure a fair trial. The ICTR has adopted similar
provisions. See ICTR RPE 89 and 92.
In addition, the rules of evidence in courts-martial do not
currently provide for the consideration of classified evidence by the
finder of fact unless the defendant is also provided access to that
classified evidence. See the Classified Information Procedures Act, 18
U.S.C. Appendix III, Sec. Sec. 1-16, and Military Rule of Evidence 505.
These procedures work well when the defendant already has a security
clearance, which has historically been true in criminal prosecutions
concerning classified information. However, the procedures used in
Article III courts and courts-martial are problematic when the
defendant does not have a security clearance and does not qualify for
one under security clearance procedures. Disclosure of classified
information concerning sensitive intelligence sources and methods or
military operational procedures would compromise that classified
information and potentially endanger the lives of members of the U.S.
Armed Forces engaged in the global war on terrorism. Trial before the
conclusion of hostilities creates security concerns not present in
prosecutions after the end of a conflict.
4. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, and General
Hemingway, we have a world class system of military justice, one that
is adapted for dealing with classified information, for trials that do
not take place in the bright lights of the media. Precisely what is it
about that system that makes it unusable here? Please explain your
answer fully.
Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. The rules
of evidence in courts-martial do not currently provide for the
consideration of classified evidence by the finder of fact unless the
defendant is also provided access to that classified evidence. See the
Classified Information Procedures Act, 18 U.S.C. Appendix III,
Sec. Sec. 1-16, and Military Rule of Evidence 505. These procedures
work well when the defendant already has a security clearance, which
has historically been true in criminal prosecutions concerning
classified information. However, the procedures used in Article III
courts and courts-martial are problematic when the defendant does not
have a security clearance and does not qualify for one under security
clearance procedures. Disclosure of classified information concerning
sensitive intelligence sources and methods or military operational
procedures would compromise that classified information and potentially
endanger the lives of members of the U.S. Armed Forces engaged in the
global war on terrorism. Trial before the conclusion of hostilities
creates security concerns not present in prosecutions after the end of
a conflict.
APPLICATION OF GENEVA CONVENTIONS
5. Senator McCain. Mr. Dell'Orto, Admiral McGarrah, General
Hemingway, and Mr. Hutson, what would have been different at the Gitmo
detention facility had Secretary Powell's position prevailed--i.e., had
the administration applied the Geneva Conventions to all detainees
captured in Afghanistan (as we've done in all past wars), but then, in
accordance with Geneva, denied the special privileges of prisoner of
war (POW) status to the al Qaeda prisoners. Under Geneva, we still
could have detained and interrogated the prisoners for the duration of
the war against al Qaeda. What did we really gain by choosing not to
apply the Geneva Conventions? Please explain your answer fully.
Mr. Dell'Orto, Admiral McGarrah, and General Hemingway. What was
gained was a determination consistent with the law of war and
applicable international law that provided the legally correct
framework for the detention and interrogation of enemy combatants
detained in the global war on terrorism. Since September 11, 2001, the
United States and its coalition partners have been engaged in a war
against al Qaeda, the Taliban, and their affiliates and supporters.
There is no question that under the law of war, the United States has
the authority to detain persons who have engaged in unlawful
belligerence until the cessation of hostilities. The detention policy
of the U.S. Government, including the responsibilities of the
Department of Defense, was set forth in the President's Military Order
of November 13, 2001 enclosed at TAB A.
The Department of Defense is complying with the guidance issued by
the President in his February 7, 2002, memorandum.
Mr. Hutson. Much of any answer is speculative but one thing is
certain: We would have maintained the heretofore uninterrupted
adherence to the Geneva Conventions by the United States since their
inception in 1949. We also be in a much better position in the future
to encourage other nations to do so when they may have preferred to
ignore them, or at least to complain when they don't comply.
I speculate that the confusion that erupted in Afghanistan and Iraq
about the applicability of the Geneva would not have occurred.
Misguidedly, we parsed who was covered and who as not and decreed that
all terrorists were not covered. Then the war in Iraq morphed into a
war against terror; a fortiori, the enemy were terrorists and not
protected. At that point, the consequences became virtually inevitable.
scope of army field manual 34-52
6. Senator McCain. Mr. Barr, in the hearing before the Senate Armed
Services Committee on July 13, 2005, General Craddock asserted that the
following interrogation techniques are approved in the Army Field
Manual on Interrogation 34-52, under the approach called ``Ego Down and
Futility'':
- forcing a man to wear a woman's bra and placing underwear on
his head;
- tying a leash to the subject and leading him around the room,
forcing him to perform dog tricks;
- standing naked for several minutes with female interrogators
present; and
- pouring water over their heads.
Is it your opinion that the field manual authorizes or in some way
allows these examples to be used during interrogations by Defense
Department personnel? If it does, or implies that these techniques are
okay, should the manual be changed? Please fully explain your answer.
Mr. Barr. As to whether the specific techniques cited are approved
by the Army Field Manual, I defer to military authorities to interpret
their own guidelines.
I would advise against changing the Manual to address specific
techniques. The Manual should set forth general principles which should
be applied prudentially in given circumstances. It should not seek to
become a comprehensive code cast in minute detail.
While some techniques may never be justifiable, other particular
techniques might be inappropriate in most circumstances, while
justifiable in another. For example, in the case of a uniformed enemy,
conducting war in accordance with the rules of war and held as a
prisoner of war, I would think the scope of appropriate coercive
interrogation should be quite narrow. Things may be different if our
forces capture a terrorist--someone engaged in violating the rules of
war by concealing himself among innocent civilians for the very purpose
of slaughtering innocent civilians through surprise attacks. In such a
case, if a military commander has reason to think that he can extract
crucial information and save innocent lives by using an interrogation
technique that involves neither significant pain nor injury, there may
be more room for leeway.
More concretely, for example, if we captured Zarqawi's chief of
operations and found that he had a particular horror of donning woman's
lingerie (to use the technique mentioned in your question), would it
really be immoral or improper to exploit that fear if it meant saving
lives? In this regard, the term ``degrading'' is not self-defining. It
can mean different things in different contexts. There are some things
that a teacher might do to a pupil, or a boss to a secretary, or a
policeman to a suspect, or a fraternity brother to a pledge, that we
would consider ``degrading''--perhaps even just calling a name; perhaps
something demeaning or very embarrassing. And yet the same treatment
might not be troublesome when employed on the battlefield against a
terrorist captive. In judging what constitutes degrading treatment of
terrorists captives under interrogation, it seems to me we should not
apply the same standard we would apply to interactions in the
classroom, the office, the precinct station, or the frat house.
INTERROGATION TECHNIQUES
7. Senator McCain. General Romig, Admiral McPherson, General
Sandkuhler, General Rives, and Mr. Hutson, the investigation by
Lieutenant General Randall M. Schmidt, USA and Brigadier General John
T. Furlow, USA, into the FBI's allegations of detainee abuse at the
Gitmo detention facility substantiated several interrogation
techniques. Does the Army Field Manual 34-52 permit the following
interrogation techniques which were substantiated by the investigating
General Officers to have been used as interrogation techniques at
Gitmo. Please answer yes or no. If longer answers are required, please
provide additional responses:
General Romig. Military doctrine is defined as fundamental
principles by which the military forces or elements thereof guide their
actions in support of national objectives. Army Field Manuals, such as
FM 34-52, contain doctrine and training principles with supporting
tactics, techniques, and/or procedures and describe how the Army and
its organizations function in terms of missions, organizations,
personnel, and equipment. Field Manuals are differentiated from Army
Regulations, which are directives that set forth missions,
responsibilities, and policies, delegate authority, set objectives, and
prescribe mandated procedures to ensure uniform compliance with those
policies.
It is important to note that the Army Field Manual (Field Manual
34-52) reinforces ``the stated policy of the U.S. Army that military
operations will be conducted in accordance with the law of war
obligations of the U.S.'' In doing so, however, it does not attempt to
distinguish among the various ``sources'' in applying the interrogation
doctrine set forth therein. The Army Field Manual lists as possible
``sources'' civilian internees, insurgents, EPWs, defectors, refugees,
displaced persons, agents or suspected agents, and other non-U.S.
personnel, but also makes it clear that all of these personnel ``are
entitled to PW protection until their precise status has been
determined by competent authority.'' The policies and procedures for
making such a determination are not set forth in the Army Field Manual.
Admiral McPherson. As a preface for answering each of the questions
below in the context of interrogations, it would be useful first to set
forth a key portion of the guidance provided by the Army Field Manual
34-52 (FM). The FM provides the following two tests to determine if a
contemplated approach or technique would be considered unlawful:
Given all the surrounding facts and circumstances,
would a reasonable person in the place of the person being
interrogated believe that his rights, as guaranteed under both
international and U.S. law, are being violated or withheld, or
will be violated or withheld if he fails to cooperate?
If your contemplated actions were perpetrated by the
enemy against U.S. Prisoners of War, would you believe such
actions violated international or U.S. law?
The FM continues, ``[i]f the answer is yes to either of these
tests, do not engage in the contemplated action.'' These tests will be
the foundation for answering all of the committee's questions
addressing the use of specific activities as interrogation techniques.
General Sandkuhler. The Army Field Manual 34-52 (FM 34-52) sets
forth as doctrine a highly protective standard for the interrogation of
detainees. The Field Manual states: ``The use of force, mental torture,
threats, insults, or exposure to unpleasant and inhumane treatment of
any kind is prohibited by law and is neither authorized nor condoned by
the U.S. Government.'' The field manual also states ``the use of force
is a poor technique as it yields unreliable results.'' (FM 34-52, Chap.
1) Therefore, for both humane and operational reasons, it is far better
for the interrogator to choose those techniques that suit the
detainee's natural propensities and not those that attempt to overcome
the will to resist. With these two principles in mind, the answer to
all of the following questions would generally be ``no.''
General Rives. Please note the following prefatory comment, which
is applicable to all answers, that follow. Army Field Manual (FM) 34-52
explicitly states that it is Army policy that military operations will
be conducted in accordance with the law of war obligations of the
United States. It provides doctrinal guidance, techniques, and
procedures, and it also cautions that limitations on the use of
expressly prohibited methods should not be confused with psychological
ploys, verbal trickery, or other nonviolent or noncoercive ruses. The
Army Field Manual further states that the Geneva Conventions and U.S.
policy prohibit acts of violence or intimidation, including physical or
mental torture, threats, insults or exposure to inhumane treatment in
interrogation. Finally, FM 34-52 advises that great care must be taken
to avoid threatening or coercing a source as that would be a violation
of the Geneva Convention on the treatment of enemy prisoners of war,
Article 17.
A. Is the use of dogs during interrogations, muzzled or unmuzzled,
consistent with the intent and the spirit of the Army Field Manual,
which is consistent with Treaties on Human Rights, the Geneva
Conventions, our International Obligations, and domestic law;
General Romig. The use of military working dogs as a security or
control measure, when properly controlled by a trained dog handler, is
not objectionable. The use of dogs as a method of interrogation (as
distinguished from a security or control measure) would not be
consistent with the intent and spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM. If a dog is used as part of an interrogation approach
to harass, intimidate, threaten or coerce a detainee, the use is not
consistent with the FM. Proper use of dogs for security purposes
independent from interrogations is not inconsistent with the intent and
spirit of the FM.
General Sandkuhler. No, the use of dogs as an interrogation method
intended to place the detainee in fear of death or injury would not be
consistent with FM 34-52, which prohibits threats and exposure to
unpleasant treatment. The use of military working dogs in their usual
function of security and detection may be permissible, so long as they
do not threaten the detainee.
General Rives. No, this is not consistent with the intent and
spirit of Army Field Manual 3452. The use of dogs for legitimate
security, control, patrol and inspection functions is appropriate, but
use of dogs as an interrogation approach or tactic is inconsistent with
the intent and spirit of the Army Field Manual.
B. Is forcing a detainee to wear a woman's bra and thong placed on
their head during the course of the interrogation consistent with the
intent and the spirit of the Army Field Manual, which is consistent
with Treaties on Human Rights, the Geneva Convention, our International
Obligations, and domestic law;
General Romig. No. Forcing a detainee to wear a woman's bra and
thong placed on his head during the course of the interrogation, in an
attempt to humiliate or degrade the detainee, would not be consistent
with the intent and the spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM. The FM provides that the Geneva Conventions
provisions concerning protected persons be strictly adhered to in the
quest to identify legitimate threats and gain needed intelligence.
Among those provisions are the prohibition on physical or moral
coercion and the prohibition on subjecting individuals to humiliating
or degrading treatment.
General Sandkuhler. No, this is not consistent with FM 34-52, which
prohibits insults and unpleasant treatment. Furthermore, the Geneva
Conventions prohibit ``outrages upon personal dignity, in particular
humiliating and degrading treatment.'' (GC, Art. 3(1)(c))
General Rives. No, forcing a detainee to wear a woman's bra and
thong on his head as an interrogation tactic designed to humiliate or
degrade the detainee is not consistent with the intent and spirit of
the Army Field Manual.
C. Is telling a detainee that his mother and sister were whores
consistent with the intent and the spirit of the Army Field Manual,
which is consistent with Treaties on Human Rights, the Geneva
Conventions, our International Obligations, and domestic law;
General Romig. No. Telling a detainee that his mother and sister
are whores, thereby degrading him and his family, would not be
consistent with the intent and the spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM.
General Sandkuhler. No, this is not consistent with FM 34-52, which
prohibits insults.
General Rives. No, telling a detainee that his mother and sister
were whores as an interrogation tactic is not consistent with the
intent and spirit of the Army Field Manual.
D. Is telling a detainee that he is a homosexual, had homosexual
tendencies, and other detainees had found out about these tendencies
consistent with the intent and the spirit of the Army Field Manual,
which is consistent with Treaties on Human Rights, the Geneva
Conventions, our International Obligations, and domestic law;
General Romig. No. Telling a detainee that he is a homosexual, had
homosexual tendencies, and other detainees had found out about these
tendencies, thereby humiliating and possibly endangering the detainee,
would not be consistent with the spirit or intent of the Army Field
Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM.
General Sandkuhler. No, this is not consistent with FM 34-52 if it
is meant to insult or threaten. The FM 34-52 also recommends ``not
inquiring into those private affairs which are beyond the scope of the
interrogation.'' (FM 34-52, Chap. 1)
General Rives. No, telling a detainee that he is a homosexual, had
homosexual tendencies, and other detainees had found out about these
tendencies as an interrogation tactic is not consistent with the
intent. and the spirit of the Army Field Manual.
E. Is leading a detainee around the room on all fours and forcing
him to perform a series of dog tricks consistent with the intent and
the spirit of the Army Field Manual, which is consistent with Treaties
on Human Rights, the Geneva Conventions, our International Obligations,
and domestic law;
General Romig. No. Leading a detainee around the room on all fours
and forcing him to perform a series of dog tricks, thereby humiliating
or demeaning him, would not be consistent with the intent and the
spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM.
General Sandkuhler. No, this is not consistent with FM 34-52, which
prohibits insults and unpleasant treatment. Furthermore, the Geneva
Conventions prohibit ``outrages upon personal dignity, in particular
humiliating and degrading treatment.'' (GC, Art. 3(1)(c)).
General Rives. No, leading a detainee around the room on all fours
and forcing him to perform a series of dog tricks is not consistent
with the intent and the spirit of the Army Field Manual.
F. Is forcing a detainee to dance or touch an interrogator in a
provocative fashion consistent with the intent and the spirit of the
Army Field Manual, which is consistent with Treaties on Human Rights,
the Geneva Conventions, our International Obligations, and domestic
law;
General Romig. No. Forcing a detainee to dance or touch an
interrogator in a provocative fashion, thereby humiliating or demeaning
him, would not be consistent with the spirit and intent of the Army
Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM.
General Sandkuhler. No.
General Rives. No, forcing a detainee to dance or touch an
interrogator in a provocative fashion as an interrogation tactic is not
consistent with the intent and the spirit of the Army Field Manual.
G. Is subjecting detainees to strip searches and forcing them to
stand naked while females are present consistent with the intent and
the spirit of the Army Field Manual, which is consistent with Treaties
on Human Rights, the Geneva Conventions, our International Obligations,
and domestic law;
General Romig. Use of strip searches for lawful safety and security
purposes is not objectionable. Subjecting detainees to strip searches
and forcing them to stand naked while females are present, as a method
of interrogation, would not be consistent with the intent and the
spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM. Properly conducted strip searches for security
purposes independent of interrogations are not inconsistent with the
intent and spirit of the FM.
General Sandkuhler. No, forcing a detainee to strip or to stand
naked in front of the opposite sex as a means of interrogation is not
consistent with the intent and spirit of FM 34-52. A strip search
conducted in a respectful manner for security or law enforcement
purposes may be permissible.
General Rives. No, subjecting a detainee to strip searches and
forcing him to stand naked while females are present as an
interrogation tactic is not consistent with the intent andthe spirit of
the Army Field Manual.
H. Is preventing detainees from praying and mishandling the Koran
consistent with the intent and the spirit of the Army Field Manual,
which is consistent with Treaties on Human Rights, the Geneva
Convention, our International Obligations, and domestic law; and
General Romig. Mishandling the Koran in order to coerce cooperation
by the detainee would not be consistent with the intent and the spirit
of the Army Field Manual. Also, threatening to subject a detainee to
disadvantageous treatment with respect to the exercise of religious
duties, because of a failure to cooperate with interrogators, is a form
of coercion and would not be consistent with the intent and spirit of
the Army Field Manual.
With respect to religious practices, however, a balance must be
found between a detainee's obligation to comply with the disciplinary
routine prescribed by military authorities and the obligation of the
authorities to afford latitude to prisoners in the reasonable exercise
of their religious duties. For example, a detainee may not demand to
attend prayer all day in order to avoid interrogation.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM.
General Sandkuhler. No, preventing detainees from praying and
deliberate mishandling of the Koran is not consistent with the intent
and spirit of FM 34-52. Furthermore, guards should be properly trained
to avoid accidental mishandling of any items held sacred by detainee
religious groups.
General Rives. No, preventing detainees from praying, and
mishandling the Koran is not consistent with the intent and the spirit
of the Army Field Manual.
I. Is pouring cold water on detainees' head and water boarding
consistent with the intent and the spirit of the Army Field Manual,
which is consistent with Treaties on Human Rights, the Geneva
Convention, our International Obligations, and domestic law?
General Romig. Water boarding would not be consistent with the
intent and the spirit of the Army Field Manual. There may be valid
health and safety reasons to pour cold water on a detainee's head in
particular circumstances and, in those circumstances, such actions
would not be inconsistent with the intent and the spirit of the Army
Field Manual. Under other circumstances, however, pouring water on a
detainee's head as a means of or aid to interrogation could be
considered unlawful coercion and would not be consistent with the
intent and the spirit of the Army Field Manual.
Admiral McPherson. No, this is not consistent with the intent and
spirit of the FM. Pouring cold water on a detainee's head in situations
other than as an interrogation technique would not necessarily be
inconsistent with the intent and spirit of the FM.
General Sandkuhler. No. Water boarding, which I understand is
intended to place the detainee in fear of drowning, and pouring cold
water on a detainee's head, which I understand is intended to cause
discomfort, would not be consistent with FM 34-52.
General Rives. No, pouring cold water on detainee's head and water
boarding is not consistent with the intent and the spirit of the Army
Field Manual.
Mr. Hutson. I would say ``no'' to all with the possible exception
of ``D.'' I would also add that in my opinion, if the answers were
determined to be ``yes'' I would change the AFM to ensure no Americans
engage in that type of behavior. It is not appropriate, it's demeaning
to the interrogators, and it is not productive.
______
Questions Submitted by Senator Carl Levin
OFFICE OF LEGAL COUNSEL MEMORANDUM
8. Senator Levin. Mr. Dell'Orto, at the hearing you stated that the
March 14, 2003, Office of Legal Counsel (OLC) memorandum from Deputy
Assistant Attorney General John Yoo to Defense Department General
Counsel William J. Haynes ``was withdrawn as an operational document,
and so it is no longer in effect and is no longer being considered as
any precedent of any sort.'' You also stated that ``It was certainly as
recently as February of this year, but we were asked not to rely upon
it going back to December 2003. I have not relied upon it since.'' Who
directed you in December 2003 to no longer rely on the March 14, 2003
OLC memo and what led to that decision being taken at that time? Please
provide the committee with the documents officially rescinding the
March 14, 2003, OLC memo.
Mr. Dell'Orto. Assistant Attorney General Goldsmith (See DOJ Office
of Legal Counsel letter dated February 4, 2005, enclosed at Tab B).
Although I was informed that the March 14, 2003. OLC memo was under
review, I was not told what led to the decision to conduct that review.
9. Senator Levin. Mr. Dell'Orto, according to a recent news article
(Washington Post, July 15, 2005), DOD General Counsel Haynes issued a
memo earlier this year rescinding the Working Group Report on Detainee
Interrogations in the global war on terrorism. Has the Working Group
report been rescinded? If so, please provide the committee with a copy
of the memo rescinding that report.
Mr. Dell'Orto. The working group report on detainee interrogation
was rescinded on March 17, 2005. The memorandum is enclosed at TAB C.
______
Questions Submitted by Senator Edward M. Kennedy
AWARENESS OF FBI OBJECTIONS
10. Senator Kennedy. Mr. Dell'Orto, a 2004 FBI e-mail indicated
that the DOD was obtaining unreliable intelligence and was jeopardizing
future prosecution of the detainees. The e-mail states that these
concerns were raised in weekly meetings with high-ranking Criminal
Division personnel at the Justice Department, including Deputy
Assistant Attorney General Alice Fisher, and that all of them agreed
the interrogation techniques would be an issue in trials by military
commissions, since the statements were being coerced. According to the
e-mail, the concerns were brought to the attention of the Office of
General Counsel by Bruce Swartz.
A. When did you first become aware that the Federal Bureau of
Investigations (FBI) was concerned about the effectiveness and
reliability of the DOD interrogation techniques?
B. Who brought it to your attention?
C. What was the substance of the complaints?
D. What was your response?
E. How did General Counsel Haynes respond?
Mr. Dell'Orto. As intelligence collection and criminal
investigative activities involving detainees evolved from the inception
of DOD detention operations at Guantanamo, there had been occasions
when the professional and doctrinal approaches of intelligence
collectors and criminal investigators led to disagreements in the
field. From time to time, I had been made aware of such disagreements
as reported by the responsible officials in the appropriate command or
component. Discussions with Department of Justice officials focused on
matters relating to the collection of evidence in criminal
investigations and the collection of intelligence information critical
to carrying out the global war on terrorism. My response and that of
the DOD General Counsel have been to address these matters consistently
within the requirements of U.S. law and consistent with U.S. policy
concerning the humane treatment of detainees.
Differences in approaches toward interrogation between the military
intelligence community and the law enforcement community were reported
beginning relatively early in the evolution of DOD detention operations
at Guantanamo. For example. the law enforcement community raised issues
regarding the requirement to provide Miranda warnings to detainees. The
military intelligence community was not obligated to provide such
warnings. It also was reported on several occasions that the law
enforcement community believed the most effective way to obtain
information from a detainee was to build rapport with the detainee. I
understood that the military intelligence community desired to pursue a
course of interrogation that drew heavily on the techniques described
in Army Field Manual 34-52. From time to time reports of these
differences in approaches to interrogation came to our office from
various sources. Some reports came from the military Intelligence
Community at Guantanamo, and some came from Department of Justice
attorneys who met with Department of Defense attorneys from time to
time. Whenever Mr. Haynes learned of such reports, he directed inquiry
through the Joint Staff to the chain of command to determine whether
the differences between the communities reflected the historically
different roles of the two communities or whether there were specific
complaints about the interrogation of particular detainees and the
specific techniques employed. To the best of my recollection, no
specific complaints about abuse of detainees or any FBI concerns about
interrogation of particular detainees or specific techniques were
brought to our attention in any of these reports. As for concerns about
the admissibility of statements obtained during interrogations and the
possible effect that interrogation approaches might have on the
admissibility of such statements, I was mindful of two factors that
were counterweights to the DOJ concerns about admissibility as
evidence; first, that the principal purpose for interrogations at
Guantanamo was to acquire intelligence about current and future planned
al Qaeda operations so as to thwart those operations and protect the
United States and its citizens from future attacks, and second, that
the military commission rules provided for greater latitude in the
admissibility of such statements than was the case in Article III
courts, the latter forum being the principal focus of the DOJ
attorneys.
MEETINGS WITH THE FBI GENERAL COUNSEL
11. Senator Kennedy. Mr. Dell'Orto, in a 2004 letter to major
General Donald Ryder, FBI Deputy Assistant Director T. J. Harrington
specifically referred to discussions between you and the FBI Office of
General Counsel about the FBI concerns. What action did you take in
response to those discussions?
Mr. Dell'Orto. I did not meet with the FBI General Counselor any
attorney from that office. My recollection is that I had a telephone
conversation with an attorney from the FBI Office of General Counsel in
the summer of 2003. During that telephone call, I ascertained that the
time frame of the concerns being expressed was prior to January 2003,
the month during which the Secretary of Defense responded to Mr.
Haynes' reports about concerns brought to his attention by an official
within the Department of Defense by suspending a number of the
interrogation techniques being employed with respect to one detainee at
Guantanamo. The FBI attorney did not report specific techniques or
detainees to me or report any concerns about techniques employed after
January 15, 2003. I asked this attorney to provide me with any details
or additional information if he later learned of any.
12. Senator Kennedy. Mr. Dell'Orto, what did General Counsel Haynes
instruct you to do?
Mr. Dell'Orto. I do not recall discussing this telephone call with
Mr. Haynes. In the absence of further specifics relating to the
concerns expressed and the time frame of the interrogations that
appeared to be the source of the FBI concerns, there was nothing more
to be done since the Secretary had taken clear action in January 2003
to limit the types of lawful techniques to be used at Guantanamo and
again in April 2003 to direct a new set of techniques for use at
Guantanamo that also were well within the law and based on a solid
policy foundation.
13. Senator Kennedy. Mr. Dell'Orto, did you discuss DOD's response
with the FBI and the Justice Department and if so, with whom and what
information was communicated?
Mr. Dell'Orto. I do not recall a subsequent conversation with the
FBI or Department of Justice on this issue.
14. Senator Kennedy. Mr. Dell'Orto, what techniques were the
subject of the FBI's complaint?
Mr. Dell'Orto. As far as I recall, the FBI attorney did not provide
any specific techniques during. our telephone call and did not
subsequently call with any further detail.
15. Senator Kennedy. Mr. Dell'Orto, did you stop the techniques
that were the cause of the FBI's concern?
Mr. Dell'Orto. In the absence of any detailed information provided
during the call I received in the summer of 2003 and given that the
call referred only to the pre-January 2003 time frame, I took no
further action. On January 15, 2003, the Secretary of Defense had
suspended the use of any technique that was not included among those
identified in Army Field Manual 34-52.
CONCERNS ABOUT DOD INTERVIEW METHODS
16. Senator Kennedy. Mr. Dell'Orto, Alice Fisher told the Judiciary
Committee that she recalled having general discussions about the
effectiveness of the DOD's interview methods, including whether the
FBI's methods were more effective in obtaining intelligence. Did you or
anyone on the General Counsel's staff have knowledge of the substance
of Ms. Fisher's concerns and if so, to whom were they communicated, and
what were the concerns?
Mr. Dell'Orto. Differences in approaches toward interrogation
between the military intelligence community and the law enforcement
community were reported beginning relatively early in the evolution of
DOD detention operations at Guantanamo. For example, the law
enforcement community raised issues regarding the requirement to
provide Miranda warnings to detainees. The military intelligence
community was not obligated to provide such warnings. It also was
reported on several occasions that the law enforcement community
believed the most effective way to obtain information from a detainee
was to build rapport with the detainee. I understood that the military
Intelligence Community desired to pursue a course of interrogation that
drew heavily on the techniques described in Army Field Manual 34-52.
From time to time reports of these differences in approaches. to
interrogation came to our office from various sources. Some reports
came from the military Intelligence Community at Guantanamo, and some
came from Department of Justice attorneys who met with Department of
Defense from time to time. To the best of my recollection, no specific
complaints about abuse of detainees or any FBI concerns about
interrogations of particular detainees or specific techniques were
brought to our attention in any of these reports. As for concerns about
the admissibility of statements obtained during interrogations and the
possible effect that interrogation approaches might have on the
admissibility of such statements, I was mindful of two factors that
were counterweights to the DOJ concerns about admissibility as
evidence; first, that the principal purpose for interrogations at
Guantanamo was to acquire intelligence about current and future planned
al Qaeda operations so as to thwart those operations and protect the
United States and its citizens from future attacks, and second, that
the military commission rules provided for greater latitude in the
admissibility of such statements than was the case in Article III
courts, the latter forum being the principal focus of the DOJ
attorneys.
17. Senator Kennedy. Mr. Dell'Orto, please describe any
communication, either direct or indirect, which you or members of the
DOD Office of the General Counsel had with then Assistant Attorney
General Chertoff about the FBI's complaints of coercive interrogation
tactics.
Mr. Dell'Orto. I am not aware of any communication that I or any
member of the Office of General Counsel had with then-Assistant
Attorney General Chertoff about FBI complaints of coercive
interrogation tactics.
OVERRIDING JUDGE ADVOCATE GENERAL INPUT
18. Senator Kennedy. Mr. Dell'Orto, the DOD's Church Report reveals
a disagreement primarily between military legal leadership on one side,
and DOD General Counsel, the Department of Justice, and White House
Counsel Alberto Gonzales on the other side, over interrogation tactics
and what constitutes torture.
In response to requests from other government agencies, the
Department of Justice produced the Bybee memo: a legal framework for
interrogation guidance. Mr. Haynes then convened a Pentagon working
group to look at interrogation policies, and wanted to adopt the Bybee
memo. According to Admiral Church's report, many military lawyers and
some civilian lawyers objected to the contents of the Bybee memo. At a
Senate hearing in March, Admiral Church told us he concluded that DOD
General Counsel William J. Haynes overrode the objections and imposed
the Bybee analysis.
Why did Mr. Haynes decide to override the expert suggestions of the
military lawyers in the Judge Advocate General (JAG) Corps?
Mr. Dell'Orto. On January 15, 2003, the Secretary of Defense
directed the DOD General Counsel. to establish a working group within
the Department of Defense to assess the legal, policy and operational
issues relating to the interrogation of detainees held by the United
States Armed Forces in the global war on terrorism. On January 16,
2003; the DOD General Counsel asked the General Counsel of the
Department of the Air Force to convene this working group, comprised of
representatives of the Office of the Under Secretary of Defense
(Policy), the Defense Intelligence Agency, the General Counsels of the
Air Force, Army, and Navy, the Counsel to the Commandant of the Marine
Corps, the Judge Advocates General of the Air Force, Army, and Navy,
the Staff Judge Advocate to the Commandant of the Marine Corps, the
Legal Counsel to the Chairman of the Joint Chiefs of Staff, and the
Director of the Joint Staff. The working group was tasked to make
recommendations concerning employment of particular interrogation
techniques by DOD interrogators. The assessments and recommendations of
this working group were considered carefully by senior DOD officials in
their deliberations.
The deliberations of the working group were extensive, with
vigorous exchanges of views and consultations, including among the
senior legal advisors of DOD components, which the DOD General Counsel
encouraged. The DOD General Counsel met with and listened to the views
expressed by the Judge Advocates General, the Staff Judge Advocate to
the Commandant, the General Counsels of the military departments, the
Counsel to the Commandant of the Marine Corps, and the Legal Counsel to
the Chairman of the Joint Chiefs of Staff individually and
collectively. He offered to meet with any working group staff attorney
who desired to discuss his or her views on the issues under review ,and
did so on at least one occasion with multiple attorneys. The working
group's assessment of the legal issues included the input of and
consultation with Department of Justice representatives. The DOJ Office
of Legal Counsel is the authoritative entity in the executive branch
for interpretations of the law. In light of the complexity and
significance of the issues presented for consideration by the working
group, consultation with DOJ Office of Legal Counsel was especially
prudent and desirable. The DOD General Counsel encouraged interaction
and debate between the working group and the DOJ Office of Legal
Counsel. This resulted in at least two meetings between DOJ Office of
Legal Counsel attorneys and the working group and at least one meeting
between a senior Office of Legal Counsel attorney and a Military
Department General Counsel.
In my experience and consistent with my understanding of the role
of the Office of Legal Counsel within the Department of Justice, legal
opinions of the Office of Legal Counsel are considered to be
authoritative within the executive branch. Mr. Haynes did not override
the objections of the military lawyers in the Judge Advocate General's
Corps. He communicated this longstanding executive branch policy.
Nevertheless, although the Office of Legal Counsel legal opinion was
considered to be authoritative with respect to the Department of
Defense as to the opinion's analysis of the law it reviewed, there were
other matters of law as well as considerations of policy that the
working group did address and incorporate into its report without
reliance on the views of the Office of Legal Counsel. The Office of
Legal Counsel properly left those other matters of law and
considerations of policy solely to the working group. For instance, the
Office of Legal Counsel deferred to the working group on the
application of the Uniform Code of Military Justice. The policy
arguments regarding reciprocity, among other things, that appear in the
working group report were the product solely of the working group
efforts. Indeed, the Office of Legal Counsel never suggested, nor did
it opine on, any of the interrogation techniques considered by the
working group or included in its report during the report's
preparation. Mr. Haynes considered all aspects of the report, as did
the Secretary of Defense when he approved, consistent with the
recommendations of the Chairman of the Joint Chiefs of Staff, the
Deputy Secretary of Defense, the Under Secretary of Defense for Policy,
and Mr. Haynes, the 24 techniques for use at Guantanamo in April 2003.
As was disclosed publicly in June 2004, these 24 techniques were a
relatively small subset of the 35 techniques that the working group had
recommended for consideration by the Secretary and included only 7
techniques that had not been reflected in earlier versions Army Field
Manual 34-52. In sum, there is no basis for asserting that Mr. Haynes
overrode the suggestions of anyone who participated in the working
group process. Indeed he embraced those suggestions and communicated
all views to the Secretary of Defense.
I note that no ``Bybee memo'' was shared with the working group.
The Office of Legal Counsel opinion to which I refer above was not
signed by Mr. Bybee, but rather by a senior Office of Legal Counsel
attorney and dated March 14, 2003. This opinion, itself, was being
drafted and reviewed during the period that the working group was
performing its task and benefited from some of the discussion that
members of the working group had with Office of Legal Counsel attorneys
while they were reviewing and concluding the opinion.
I am not aware of any involvement by then-Counsel to the President
Alberto Gonzales in this process as the question appears to suggest.
Addendum to answers provided previously. I request that you
consider as part of the answers to both questions the attached July 19,
2005, letter that Michael Marchand, Major General , U.S. Army (retired)
sent to Senators Specter and Leahy.
CONTENT OF JUDGE ADVOCATE GENERAL DISAGREEMENT
19. Senator Kennedy. Mr. Dell'Orto, a January 2003 Air Force JAG
memo for the record objects to the conditions that were seen on the
ground at Gitmo. At our hearing, General Romig, General Rives, and
General Sandkuhler all stated that they wrote memos and spoke in
opposition to some of the determinations in the Bybee memo and the
subsequent Working Group Report. Mr. Hutson, the former Navy JAG, said
the Bybee legal framework ``was shallow in its legal analysis,
shortsighted in its implications, and altogether ill-advised. Frankly,
it was just wrong.'' The Navy General Counsel said this legal analysis
is questionable at best. Mr. Haynes overrode all their objections and
decided the Bybee framework would apply. Why did Mr. Haynes convene a
working group if he was going to ignore their expert opinions and go
with the Bybee memo?
Mr. Dell'Orto. Please refer to my answer to Question 18 above. In
addition, and with respect to the matter of the various memoranda
submitted by the Judge Advocates General duringthe working group
process, a review of those memoranda demonstrates that much of their
focus was on the applicability of the Uniform Code of Military Justice
and on policy concerns. I believe that an objective reading of the
working group report leads to the conclusion that those issues are more
than fairly addressed in the report. And, as I indicated in the answer
to Question 18 above, in communicating his recommendation to the
Secretary of Defense, Mr. Haynes embraced those suggestions and
communicated all views to the Secretary.
Addendum to answers provided previously. I request that you
consider as part of the answers to both questions the attached July 19,
2005, letter that Michael Marchand, Major General , U.S. Army (retired)
sent to Senators Specter and Leahy.
20. Senator Kennedy. Mr. Dell'Orto, was there an understanding that
certain elements of the Bybee memo would not change under the working
group?
Mr. Dell'Orto. Drafts of what later emerged as the March 14, 2003,
Office of Legal Counsel opinion were made available for review by and
discussed with the working group as the opinion evolved. Upon
finalization, the March 14, 2003, signed opinion was considered to be
authoritative within the executive branch, including the Department of
Defense, with respect to the matters of law it addressed. To the extent
that the working group report addressed those areas of law that the
Office of Legal Counsel opinion analyzed, the working group relied on
that interpretation of the law. To the extent that the Office of Legal
Counsel opinion did not address other matters--for example, the
applicability of the Uniform Code of Military Justice and the
considerations of policy as discussed in the answer to Question 18
above--the Office of Legal Counsel deferred all review of those matters
to the working group.
POLICY ON TREATMENT OF DETAINEES
21. Senator Kennedy. Mr. Dell'Orto, the President's policy on
treatment of detainees asserts that all detainees are to be treated
humanely. What is the definition of ``humanely'' or ``humane
treatment'' according to the DOD Office of the General Counsel?
Mr. Dell'Orto. As outlined by the White House on February 7, 2002,
U.S. policy, as determined by the President, is to treat an persons
detained in the global war on terrorism ``humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of the Third Geneva Convention of 1949.
Even though th detainees are not entitled to POW privileges, they will
be provided many POW privileges as a matter of policy.'' The White
House Fact Sheet of February 7, 2002, identifies that all detainees are
being provided:
three meals a day that meet Muslim dietary laws;
adequate shelter;
water and medical care;
clothing and shoes;
showers;
soap and hygiene items;
foam sleeping pads and blankets;
towels and washcloths;
the opportunity to worship and reading materials;
correspondence materials and the means to send mail:
the ability to receive packages of food and clothing,
subject to security screening.
In addition, the February 2002 Fact Sheet states that ``The
detainees will not be subjected to physical or mental abuse or cruel
treatment. The International Committee of the Red Cross has visited and
will continue to be able to visit the detainees privately. The
detainees will be permitted to raise concerns about their conditions
and we will attempt to address those concerns consistent with
security.''
Furthermore, in accordance with existing DOD regulations, including
Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel,
Civilian Internees and Other Detainees:
``All persons captured, detained, interned, or
otherwise held in U.S. Armed Forces custody during the course
of conflict will be given humanitarian care and treatment from
the moment they fall into the hands of U.S. forces until final
release or repatriation.''
``The inhumane treatment of EPW, CI, RP is prohibited
and is not justified by the stress of combat or with deep
provocation.''
``All prisoners will receive humane treatment without
regard to race, color, nationality, religion, political
opinion, sex, or other criteria. The following acts are
prohibited: murder, torture, corporal punishment, mutilation,
the taking of hostages, sensory deprivation, collective
punishments, execution without trial by proper authority, and
all cruel and degrading treatment.''
``All persons will be respected as human beings. They
will be protected against all acts of violence to include rape,
forced prostitution, assault and theft, insults, public
curiosity, bodily injury, and reprisals of any kind. They will
not be subjected to medical or scientific experiments.''
22. Senator Kennedy. Mr. Dell'Orto, the policy also calls for
treatment in accordance with the principles of the Geneva Conventions,
as long as it is consistent with ``military necessity.'' Who determines
when ``military necessity'' exists, and how is that term defined?
Mr. Dell'Orto. The conditioning of certain rights under the law of
war based upon the military necessity requirements of the detaining
power is a fundamental concept within the law of war that is reflected
within the Geneva Conventions of 1949. Throughout history, the need for
the law of war to accommodate the security concerns of the detaining
power has been recognized. Pictet's Commentary to the Third Geneva
Convention of 1949, for example, states that limitations on access to
prisoners of War for ``reasons of imperative military necessity'' were
necessary: ``Otherwise, [detaining powers] would sometimes have been
put in a position where they were faced with the choice of either
violating the Conventions or harming their own military position. Here
as elsewhere, humanitarian principles must take into account actual
facts if they are to be applicable.'' (p.611).
DIFFERENCE BETWEEN TREATMENT OF DETAINEES
23. Senator Kennedy. Mr. Dell'Orto, at the hearing you and the JAGs
confirmed that the treatment of detainees in Iraq, who are covered by
the Geneva Conventions, is subject to different guidelines than
treatment of detainees in Gitmo. Part of the justification for approval
of certain interrogation techniques at Gitmo, which would fall outside
the Geneva Conventions, is that they are necessary to combat terrorism
and save American lives of troops on the ground. Iraq is also currently
a battleground for combating terrorism. Do you distinguish between
individuals detained as terrorism suspects with links to al Qaeda or
other jihadist organizations in Iraq, and those detained as non-
jihadist Iraqi insurgents?
Mr. Dell'Orto. From the outset in the conflict in Iraq, the
administration position has been unequivocal that the Geneva
Conventions applied to Operation Iraqi Freedom. The application of the
Geneva Conventions to the conflict in Iraq, however, does not
necessarily result in their protections applying to non-Iraqi, al Qaeda
members who enter Iraq to conduct terrorist attacks against coalition
forces. The facts of any such case would need to be carefully
scrutinized, but significant al Qaeda figures cannot legitimize their
terrorist activities in the global war on terrorism simply by entering
Iraqi territory.
24. Senator Kennedy. Mr. Dell'Orto, is the intelligence you obtain
from terrorism suspects in Iraq superior to the intelligence you obtain
from those detained in Gitmo?
Mr. Dell'Orto. I am not in a position to compare the quality of
intelligence obtained from detainees in Iraq and Guantanamo.
MILITARY INSIGNIA
25. Senator Kennedy. Mr. Dell'Orto, part of the justification for
not detaining the individuals at Gitmo in a manner consistent with the
Geneva Conventions is that they were not wearing proper insignia on the
battlefield. Are there American servicemembers on the ground not
wearing military insignia? If so, where?
Mr. Dell'Orto. DOD Directive 5100.77, DOD Law of War Program,
December 9, 1998, provides that U.S. Armed Forces must comply with the
law of war during all armed conflicts, however such conflicts are
characterized. The law of war includes prohibitions on perfidy and
requires combatants to distinguish themselves during combat operations.
The President determined that although the conflict with the
Taliban is covered by the Geneva Convention Relative to the Treatment
of Prisoners of War of August 12, 1949 (GPW), the Taliban detainees are
not entitled to POW status under the terms of GPW Article 4. One aspect
of this determination was based on the factual determination that the
Taliban, as a force, failed to wear a fixed distinctive sign
recognizable at a distance. The requirements for POW stat11s in Article
4 for Armed Forces, militias, and other volunteer corps refer to the
actions of the collective forces, not individuals.
Standard U.S. military uniforms satisfy the requirements of GPW
Article 4. Unlike the Taliban, U.S. Armed Forces operate in accordance
with the generally accepted practice of States with respect to the
wearing of uniforms by members of the Armed Forces. The requirements of
Article 4 may, however, be satisfied by other than a standard military
uniform, e.g., a partial uniform or a fixed, distinctive sign, provided
that forces are recognizable as combatants. In limited, exceptional
circumstances, a small number of U.S. forces may be authorized to
operate in other than standard military uniforms, but in all cases are
required to conduct their operations in accordance with the law of war.
26. Senator Kennedy. Mr. Dell'Orto, if captured, would members of
the U.S. military not wearing insignia receive the protections of the
Geneva Conventions?
Mr. Dell'Orto. As already noted, U.S. Armed Forces conduct their
operations in accordance with the law of war. In an international armed
conflict where the Geneva Conventions apply, captured U.S. forces would
be entitled to, and should be provided, POW protections. Should there
be doubt regarding whether a captured U.S. servicemember belongs to any
of the categories enumerated in GPW Article 4, he or she would be
entitled to, and should enjoy, POW protections until such time as his
or her status has been determined by a competent tribunal.
Regardless of whether the Geneva Conventions apply to a conflict,
captured U.S. servicemembers should be provided appropriate care and
humane treatment from the time they are captured until their ultimate
release or repatriation, consistent with the law of war.
It should be noted in addressing this question in the context of a
U.S. servicemember captured by the Taliban or al Qaeda that their
forces have demonstrated repeatedly their absolute disregard for the
law of war and any obligation to provide humanitarian care and
treatment to persons they capture.
[Whereupon, at 12:47 p.m., the subcommittee adjourned.]