[Senate Hearing 109-881]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 109-881
 
 MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN 
                              V. RUMSFELD

=======================================================================

                                HEARINGS

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                      JULY 13, 19; AUGUST 2, 2006

                               __________

         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

                    Charles S. Abell, Staff Director

             Richard D. DeBobes, Democratic Staff Director

                                  (ii)

  




                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

 Military Commissions in Light of the Supreme Court Decision in Hamdan 
                              v. Rumsfeld

                             july 13, 2006

                                                                   Page

Black, MG Scott C., USA, The Judge Advocate General of the Army..     7
McPherson, RADM James E., USN, Judge Advocate General of the Navy     8
Rives, Maj. Gen. Jack L., USAF, The Judge Advocate General of the 
  AirForce.......................................................     8
Sandkulher, Brig. Gen. Kevin M., USMC, Staff Judge Advocate to 
  the Commandantof the Marine Corps..............................     8
Romig, MG Thomas J., USA (Ret.), Former Judge Advocate General of 
  theArmy........................................................     8
Hutson, RADM John D., USN (Ret.), Former Judge Advocate General 
  ofthe Navy.....................................................     9

   Continue to Receive Testimony on Military Commissions in Light of 
            theSupreme Court Decision in Hamdan v. Rumsfeld

                             july 19, 2006

Massimino, Elisa C., Director, Washington Office, Human Rights 
  First..........................................................   104
Bierman, Katherine Newell, Counterterrorism Counsel, U.S. 
  Program,Human Rights Watch.....................................   122
Fidell, Eugene R., President, National Institute of Military 
  Justice........................................................   133
Mernin, Michael, Chair, Committee on Military Affairs and 
  Justice, TheAssociation of the Bar of the City of New York.....   164
Carafano, James J., Senior Research Fellow, The Heritage 
  Foundation.....................................................   213
Katyal, Neal K., Professor of Law, Georgetown University.........   231
Schlueter, David A., Hardy Professor of Law and Director of 
  Advocacy Programs,St. Mary's University........................   249
Silliman, Scott L., Professor of the Practice of Law and 
  Executive Director,Center on Law, Ethics, and National 
  Security, Duke University......................................   260

  Continue to Receive Testimony on the Future of Military Commissions 
      inLight of the Supreme Court Decision in Hamdan v. Rumsfeld

                             august 2, 2006

Gonzales, Hon. Alberto R., Attorney General of the United States.   316
England, Hon. Gordon R., Deputy Secretary of Defense.............   322

                                 (iii)


 MILITARY COMMISSIONS IN LIGHT OF THE SUPREME COURT DECISION IN HAMDAN 
                              V. RUMSFELD

                              ----------                              


                        THURSDAY, JULY 13, 2006

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:02 a.m. in 
room SH-216, Hart Senate Office Building, Senator John Warner 
(chairman) presiding.
    Committee members present: Senators Warner, McCain, Inhofe, 
Roberts, Sessions, Collins, Talent, Chambliss, Graham, Cornyn, 
Thune, Levin, Kennedy, Byrd, Lieberman, Reed, Bill Nelson, E. 
Benjamin Nelson, Dayton, Bayh, and Clinton.
    Committee staff members present: Charles S. Abell, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: William M. Caniano, 
professional staff member; Regina A. Dubey, professional staff 
member; Ambrose R. Hock, professional staff member; Derek J. 
Maurer, professional staff member; David M. Morriss, counsel; 
and Scott W. Stucky, general counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Michael J. Kuiken, professional 
staff member; Peter K. Levine, minority counsel; William G.P. 
Monahan, minority counsel; and Michael J. Noblet, staff 
assistant.
    Staff assistants present: Jessica L. Kingston, Benjamin L. 
Rubin, and Pendred K. Wilson.
    Committee members' assistants present: Ann Loomis, 
assistant to Senator Warner; Pablo Chavez, Christopher J. Paul, 
and Richard H. Fontaine, Jr., assistants to Senator McCain; 
John A. Bonsell and Jeremy Shull, assistants to Senator Inhofe; 
Chris Arnold, assistant to Senator Roberts; Mackenzie M. 
Eaglen, assistant to Senator Collins; Clyde A. Taylor IV, 
assistant to Senator Chambliss; Matthew R. Rimkunas, assistant 
to Senator Graham; Russell J. Thomasson, assistant to Senator 
Cornyn; Stuart C. Mallory, assistant to Senator Thune; Mieke Y. 
Eoyang and Joseph Axelrad, assistants to Senator Kennedy; 
Christina Evans and Erik Raven, assistants to Senator Byrd; 
Frederick M. Downey, assistant to Senator Lieberman; Elizabeth 
King, assistant to Senator Reed; William K. Sutey, assistant to 
Senator Bill Nelson; Eric Pierce, assistant to Senator Ben 
Nelson; Luke Ballman, assistant to Senator Dayton; Todd 
Rosenblum, assistant to Senator Bayh; and Andrew Shapiro, 
assistant to Senator Clinton.

       OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN

    Chairman Warner. Subsequent to the Supreme Court decision, 
I was approached by a number of people who inquired as to my 
opinion with regard to the gravity of this situation. I said, 
this piece of legislation which Congress is now tasked to 
provide could be one of the landmark pieces of legislation, 
certainly in the 28 years that I've been privileged to be in 
the United States Senate.
    Given that we started a little late this morning--we had to 
do that to accommodate some of our colleagues on the Judiciary 
Committee--I will not, in an opening statement, try to go back 
over the history of how the administration, and, indeed, this 
country, have tried to deal with this very complex and, really, 
unprecedented situation regarding detainees. Most, if not all, 
have no real state allegiance, and were not in a state-
sponsored type of conflict.
    I will just assume that everyone before us here on this 
panel, and, indeed, my colleagues, are well aware of that. 
Therefore, I also will not try and get into any dissertation 
about the Supreme Court decision. We've all studied that. I'll 
simply say that we, in my judgment, as a Congress, in this 
legislation, must meet the tenets and objectives of that 
opinion; otherwise, such legislation that we will devise and 
enact into law might well be struck down by subsequent Federal 
Court review, and that would not be in the interests of this 
Nation. The eyes of the world are on this Nation as to how we 
intend to handle this type of situation, and handle it in a way 
that a measure of legal rights and human rights are given to 
detainees.
    I say ``a measure,'' because I'm not prepared, this 
morning, to say what would be the parameters in that situation. 
Like several other members of this committee, I've been in 
consultation with the administration, and it was made very 
clear to me by the National Security Advisor, Mr. Hadley, and 
Ms. Miers, Counsel to the President, that they were working the 
issue, that there were some honest difference of opinion as to 
approach within the administration--that's quite 
understandable; it's the way it should be--but that they would 
reconcile those positions and advise Congress shortly after the 
President returns from the G8 conference.
    Given that there have been two hearings at which witnesses 
have appeared and have stated rather finite parameters, I do 
not believe that we, Congress, have received the last word, by 
any means, as to where and how the administration would like to 
see this legislation proceed.
    With that in mind, I'd just caution my colleagues--let us 
be most respectful of the fact that we will work in partnership 
with the administration, but the burden rests on Congress to 
enact this law. It's my understanding--and I'll yield 
momentarily to my colleague, Senator McCain, who, likewise, has 
been in consultation with the administration, to give his 
perspectives--but we have to keep in mind the end game. The end 
game, ladies and gentlemen, are the men and women of the Armed 
Forces on the far-flung fronts of this world, wherever they may 
be, and, indeed, an associated number of civilians, who, 
likewise, are taking extraordinary risks. We're a Nation at 
war, and we need to preserve our country's ability to protect 
our intelligence sources from discovery by the enemy, and our 
men and women have to rely on sound intelligence to carry out 
their missions.
    We cannot, also, overestimate the importance of how we, 
Congress, working with the administration, deal with this. As I 
said, the eyes of the world are upon us, and we must set the 
standards. This is new ground. It may well be, in the months 
and years to come, that the international community will 
suddenly begin to realize fully, as we are now, the complexity 
of this new type of terrorist nonstate-sponsored combat, go 
back and hold a international conference to see what we can do 
to revise certain portions of the various treaties and 
documents which have guided nations these past years, given the 
change of circumstances.
    Now, the Senate leadership, in consultation with me and 
other committee chairmen, recommend that our committee proceed 
with its work, the Judiciary Committee is doing its work, the 
Intelligence Committee may well do its work. Eventually, it's 
my judgment that the leadership will put together the views of 
the three committees and have a leadership bill to propose to 
the Senate. It's my hope also that that bill be, to the extent 
possible, a bipartisan document, because it is, in my judgment, 
absolutely imperative that this law be enacted before Congress 
completes this Congress, whenever that may be.
    At this time, Senator Levin, do you have a few comments?

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. Thank you, Mr. Chairman.
    On June 29, the Supreme Court held that Congress has a 
vital role to play in determining the appropriate procedures to 
be applied when our Nation decides to try a detainee for a 
crime, such as a violation of the laws of war. I welcome 
today's hearing as an important step in that process and a step 
that can reinforce our Nation's credibility around the world by 
demonstrating our commitment to being a nation of laws, even 
with regard to enemies who have not, themselves, abided by the 
laws of war.
    If we are going to win the war on terrorism, we need more 
than military strength; we need to rally decent people 
everywhere in the world to root out terrorists and to share 
information about their horrific plans. We will have more 
success convincing potential friends and allies to actively 
join us in this cause if we show them not just our military 
strength, but also our values as a Nation.
    For almost 5 years now, the Bush administration has 
insisted on running the war on terrorism on its own, with 
little or no role for Congress. Over and over again, the 
administration has insisted that the executive branch has 
plenary authority to address critical issues such as processes 
for defining enemy combatant status, standards for the 
treatment and interrogation of detainees, procedures for trying 
detainees for crimes, and rules for the collection of 
electronic intelligence inside the United States. Last summer, 
Senator Lindsey Graham chaired a hearing in our Personnel 
Subcommittee in which the administration was repeatedly urged 
to work with us to develop legislation governing the criminal 
trial of detainees by military commissions. Senator Graham made 
it clear that we needed to write such legislation, not because 
we oppose the war on terrorism, but to help us win the war by 
establishing a firm legal basis for the trial of the small 
percentage of detainees that we try for crimes, thereby showing 
the world that we remain a nation of laws, even when we are 
attacked by the lawless.
    The Department of Defense (DOD) Deputy General Counsel made 
it clear at that hearing that the administration didn't 
particularly welcome Congress's help. He testified that 
``legislation is not necessary. The President has powers under 
the Constitution. I don't think we need additional 
authorities.''
    Two weeks ago, in Hamdan v. Rumsfeld case, the Supreme 
Court forcefully rejected that administration position. The 
authority to establish military commissions to try detainees 
for violations of the law of war, the Court ruled ``can derive 
only from the powers granted jointly to the President and 
Congress in time of war.'' The military commission established 
by the administration to try Hamdan ``lacks the power to 
proceed,'' the Court ruled, because it was not consistent with 
the authority granted by Congress, which requires its 
procedures to be consistent with the rules governing courts-
martial and the requirements of international law, including 
Common Article 3 of the Geneva Conventions. The Supreme Court 
found that the military commissions established by the 
administration to handle criminal trials departed from those 
rules and requirements in a number of ways: by authorizing the 
exclusion of a detainee from his own trial; by permitting the 
admission of a broad range of unreliable evidence; by 
permitting legal decisions to be made by nonlawyers; and by 
establishing unique review procedures that do not include 
safeguards important to the fairness of criminal proceedings 
and the independence of the court.
    We begin our deliberative process where we should begin it, 
with the testimony of distinguished military officers who lead, 
and have led, our able Corps of Judge Advocates. These are the 
witnesses who are most familiar with the rules for courts-
martial and the history and practice of military commissions. 
They also understand the practical importance of our adherence 
to American values and the rule of law in the treatment of 
others. If we mistreat, torture, or humiliate persons whom we 
detain on the battlefield, or if we proceed to try detainees 
without fair procedures, we increase the risk that our troops 
will be subject to similar mistreatment, torture, or 
humiliation at the hands of others.
    Our Founding Fathers established the standard for our 
Nation in this area, as they did in so many other areas. The 
British mistreated, starved, and summarily executed many 
American prisoners during our war for independence, but, as 
described by historian David Fischer in his book, 
``Washington's Crossing,'' General Washington ``ordered that 
captives would be treated as human beings with the same rights 
of humanity for which Americans were striving,'' and ``those 
moral choices in the War of Independence enlarged the meaning 
of the American Revolution.''
    I hope that this Congress will reaffirm once again the path 
of American values and enlightened self-interest that was set 
at our Nation's birth as we address the issues now before us 
involving the practices and procedures to be used with those 
detainees whom we decide to try for crimes.
    Mr. Chairman, I thank you for proceeding as you are in this 
manner, thoughtfully, as always. I join you in welcoming the 
distinguished panel of witnesses. I ask that my full statement 
be inserted in the record.
    [The prepared statement of Senator Levin follows:]

                Prepared Statement by Senator Carl Levin

    On June 29, the Supreme Court held that Congress has a vital role 
to play in determining the appropriate procedures to be applied when 
our Nation decides to try a detainee for a crime, such as a violation 
of the laws of war. I welcome today's hearing as an important step in 
that process, and a step that can reinforce our credibility around the 
world by demonstrating our commitment to being a nation of laws, even 
with regard to enemies who have not themselves abided by the laws of 
war.
    If we are going to win the war on terrorism, we need more than just 
military strength: we need to rally decent people everywhere in the 
world to root out terrorists and to share information about their 
horrific plans. And I firmly believe that we will have more success 
convincing potential friends and allies to actively join us in this 
cause if we show them not just our military strength, but also our 
values as a Nation.
    For almost 5 years now, the Bush administration has insisted on 
running the war on terrorism on its own, with little or no role for 
Congress. Over and over again, the administration has insisted that the 
executive branch has plenary authority to address critical issues such 
as processes for defining enemy combatant status, standards for the 
treatment and interrogation of detainees, procedures for trying 
detainees for crimes, and rules for the collection of electronic 
intelligence inside the United States. Unfortunately, reports in the 
media about U.S. practices for the treatment, interrogation, and trial 
of detainees at Guantanamo and elsewhere have severely undermined 
support for U.S. efforts around the world.
    Last summer, Senator Lindsey Graham chaired a hearing in our 
Personnel Subcommittee at which the administration was repeatedly urged 
to work with us to develop legislation governing the criminal trial of 
detainees by military commissions. Senator Graham made it clear that we 
needed to write such legislation not because we oppose the war on 
terrorism, but to help us win the war by establishing a firm legal 
basis for the trial of the small percentage of detainees that we try 
for crimes, thereby showing the world that we remain a nation of laws 
even when we are attacked by the lawless.
    The DOD Deputy General Counsel made it clear at that hearing that 
the administration didn't particularly welcome Congress' help. He 
testified: ``[Legislation is not necessary. . . . [T]he President has 
powers under the Constitution. . . . I don't think we need additional 
authorities.''
    Two weeks ago, in Hamdan v. Rumsfeld, the Supreme Court forcefully 
rejected that administration position. The authority to establish 
military commissions to try detainees for violations of the law of war, 
the Court ruled, ``can derive only from the powers granted jointly to 
the President and Congress in time of war.'' The military commission 
established by the administration to try Hamdan ``lacks the power to 
proceed,'' the Court ruled, because it was not consistent with the 
authority granted by Congress, which requires its procedures to be 
consistent with the rules governing courts martial and the requirements 
of International Law, including Common Article 3 of the Geneva 
Conventions. The Supreme Court found that the military commissions 
established by the President to handle criminal trials departed from 
those rules and requirements by:

         authorizing the exclusion of a detainee from his own 
        trial;
         permitting the admission of a broad range of 
        unreliable evidence;
         permitting legal decisions to be made by non-lawyers; 
        and
         establishing unique review procedures that do not 
        include safeguards important to the fairness of the proceedings 
        and the independence of the court.

    According to the Supreme Court, departure from the existing rules 
governing courts martial is permitted only when it is necessary--
because compliance is not ``practicable''--not merely because it is 
convenient.
    It is now up to us to decide how the ground rules for these 
commissions will be fashioned. As Justice Breyer explained in his 
concurring opinion:

          ``The court's conclusion ultimately rests upon a single 
        ground: Congress has not issued the executive a `blank check.' 
        . . . ,
          ``Where, as here, no emergency prevents consultation with 
        Congress, judicial insistence upon that consultation does not 
        weaken our Nation's ability to deal with danger. To the 
        contrary, that insistence strengthens the Nation's ability to 
        determine--through democratic means--how best to do so. The 
        Constitution places its faith in those democratic means. Our 
        court today simply does the same.''

    We begin our deliberative process where we should begin it--with 
the testimony of the distinguished military officers who lead, and have 
led, our able Corps of Judge Advocates. These are the witnesses who are 
most familiar with the rules for courts martial and the history and 
practice of military commissions. They also understand the practical 
importance of our adherence to American values and the rule of law in 
the treatment of others: if we mistreat, torture, or humiliate persons 
whom we detain on the battlefield, or if we proceed to try detainees 
without fair procedures, we increase the risk that our own troops will 
be subject to similar mistreatment, torture, or humiliation at the 
hands of others.
    Our Founding Fathers established the standard for our Nation in 
this area as they did in so many other areas. The British mistreated, 
starved, and summarily executed many American prisoners during our war 
for independence. But, as described by David Hackett Fischer in his 
book Washington's Crossing, General Washington ``ordered that . . . 
captives would be treated as human beings with the same rights of 
humanity for which Americans were striving,'' and those ``moral choices 
in the War of Independence enlarged the meaning of the American 
Revolution.''
    I hope that this Congress will reaffirm once again the path of 
American values and enlightened self-interest that was set at our 
Nation's birth as we address the issues now before us involving the 
practices and procedures to be used with those detainees whom we decide 
to try for crimes.
    Mr. Chairman, I thank you for proceeding as you are in this matter, 
thoughtfully as always, and I join you in welcoming our distinguished 
panel of witnesses.

    Chairman Warner. Thank you very much, Senator Levin.
    I'll introduce the panel, but I'd like now to ask Senator 
McCain to add his perspective.
    Senator McCain. Thank you, Mr. Chairman.
    Very briefly, first of all, I would like to congratulate 
you on convening this panel of witnesses. These are not 
political appointees, they're not transient lawyers, they're 
individuals who have served this Nation during their entire 
careers and understand the implications of the Uniform Code of 
Military Justice (UCMJ), how it would apply to detainees; and 
their testimony should be significant in guiding us as to how 
we should address this very difficult challenge we face as a 
result of the United States Supreme Court decision.
    Again, I want to emphasize my respect for the members of 
this panel for their involvement; and sometimes, on occasion, 
members of this panel have had to stand up in disagreement with 
the civilians in the DOD, which is their duty under certain 
occasions.
    Mr. Chairman, I just want to repeat, Senator Graham and I 
met with the President's National Security Advisor, Mr. Hadley, 
and present in the room were DOD and the Department of Justice 
(DOJ) representatives. We did agree, at that time, according to 
Mr. Hadley, that the basis of proceeding on applicable 
legislation would be the UCMJ. No one understands better than 
those individuals that there certainly will have to be changes 
made from the standard rubric of the UCMJ, but that's what the 
United States Supreme Court has told us to do. At that time, I 
was under the impression that that was the administration's 
position. I hope that it hadn't changed.
    Mr. Chairman, I just want to point out--you've made 
reference to it--America's image in the world is suffering 
because of Guantanamo Bay or perceived treatment of detainees. 
We need to fix that, and now is our opportunity to do it.
    Perhaps most importantly, and I know our witnesses will 
emphasize this, we will have more wars, and there will be 
Americans who will be taken captive. If we somehow carve out 
exceptions to treaties to which we are signatories, then it 
will make it very easy for our enemies to do the same in the 
case of American prisoners. I know that our witnesses will 
emphasize that today.
    I hope that as we deliberate as to how we approach--and we 
need to have a dialogue, and not openly disagree until we have 
at least exhausted the dialogue amongst ourselves--is that we 
do have an obligation to future generations of men and women 
who are serving in the military and make sure that we're not 
doing something that would allow them to be mistreated under 
some excuse because of actions we have taken in implementing 
this decision.
    I thank you, Mr. Chairman. I thank the witnesses.
    Chairman Warner. Thank you very much, Senator McCain.
    Indeed, my consultations with Mr. Hadley are comparable to 
those that you received, and I'm somewhat perplexed at some of 
the testimony that was offered both to the Senate Judiciary 
Committee and the House Armed Services Committee yesterday. 
But, in due course, we'll work that out.
    I remain on the timetables outlined to me, that the 
administration will be forthcoming in a formal manner 
subsequent to the G8 conference and their return.
    I purposely, in consultation with my colleagues, have 
decided that we would have this distinguished panel before us 
today. I have some modest career in the legal business, many 
years ago, and I just see, in each of you, what I aspired to 
achieve when I was a very young man in the law business. I 
remember when the senior partner of my firm walked down the 
hall, we flattened our back against the wall like you were 
aboard ship, ``yes, sir.'' Each of you, through your skills, 
has achieved an eminence and a recognition by becoming the 
Judge Advocates of your distinguished group of younger lawyers 
and associates throughout your respective commands. That is a 
remarkable achievement. I can think of no better than the 
current incumbents, and some of the past, to help us set the 
course and speed for this committee.
    The only distinction between you and the senior partners of 
major law firms across America today is that you make about 
one-tenth of their salaries.
    Having said that, General Black, would you like to start?

STATEMENT OF MG SCOTT C. BLACK, USA, THE JUDGE ADVOCATE GENERAL 
                          OF THE ARMY

    General Black. Yes, sir. Thank you, Mr. Chairman, Ranking 
Member Levin, and members of the committee. I'd like to thank 
you for the opportunity to appear here today and for the 
committee's timely and thoughtful consideration of Hamdan v. 
Rumsfeld.
    I'd also like to express my heartfelt thanks to the members 
and staff of this committee for your continuing hard work on 
behalf of the Army's soldiers, civilians, and family members. 
We really do appreciate what you do, day-in and day-out.
    With that, I look forward to your questions, sir.
    Chairman Warner. Thank you.
    Admiral McPherson.

   STATEMENT OF RADM JAMES E. McPHERSON, USN, JUDGE ADVOCATE 
                      GENERAL OF THE NAVY

    Admiral McPherson. Thank you, Mr. Chairman and Senator 
Levin. I echo General Black's articulate welcome this morning. 
We sincerely appreciate the opportunity to come before you 
today and talk with you about, as you put it, one of the most 
important pieces of legislation that this body has ever taken 
up. We come here with that sense; and, at the same time, we 
come with the sense that Senator McCain spoke of, that we need 
to think in terms of the long view.
    We need to think in terms of the long view and to always 
put our own sailors, soldiers, marines, and airmen in the place 
of ``an accused'' when we're drafting these rules to ensure 
that these rules are acceptable when we have someone, in a 
future war, who faces similar rules.
    Thank you, sir.
    Chairman Warner. General Rives.

STATEMENT OF MAJ. GEN. JACK L. RIVES, USAF, THE JUDGE ADVOCATE 
                    GENERAL OF THE AIR FORCE

    General Rives. Mr. Chairman, Senator Levin, members of the 
committee, it is an honor to be here today. We don't have 
formal written statements, but we do look forward to answering 
any questions, sharing our experiences, and being able to 
discuss any of the matters you would like us to discuss so you 
can better understand all of the issues you're facing here.
    Chairman Warner. The committee purposefully said you didn't 
have to put down formal statements.
    General Rives. Yes, sir.
    Chairman Warner. So, we understand that.
    General Sandkulher.

STATEMENT OF BRIG. GEN. KEVIN M. SANDKULHER, USMC, STAFF JUDGE 
         ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS

    General Sandkulher. Mr. Chairman, Senator Levin, it's an 
honor to be here. We have been here before on important 
matters, and it's a pleasure to be back again to address 
additional important matters. We look forward to handling your 
questions and having a discourse on the issues.
    Thank you.
    Chairman Warner. General Romig.

   STATEMENT OF MG THOMAS J. ROMIG, USA (RET.), FORMER JUDGE 
                  ADVOCATE GENERAL OF THE ARMY

    General Romig. Thank you, Chairman Warner, Senator Levin, 
and other members.
    I'm very pleased to appear before you today as a private 
citizen. I would like to say, at the outset, that this is a 
very important topic that Congress and this committee are 
addressing now, since it has far-reaching and historic impact 
for our military and our country.
    In this endeavor, I would urge Congress to take its time to 
deliberately and methodically explore all the options available 
before crafting the appropriate legislation. I would strongly 
caution against a rush to judgment. If ever there was a time 
for bipartisan effort, it is now.
    I urge you to take the long view, because the steps you 
take today will undoubtedly have a dramatic impact on our 
Nation's ability to effectively wage war for decades to come.
    As you go through this deliberative process, I would 
strongly urge you to retain the military commissions as an 
important tool for the military to prosecute violations of the 
law of war.
    Having said that, I believe any legislation on military 
commissions needs to reflect the practice of military law as it 
has evolved over the last 60 years since military commissions 
were last convened and as the uniformed lawyers advocated in 
2001 and early 2002.
    To this end, I believe the starting point for updating 
military commissions is to look at the structure, the 
processes, and the procedures that are in the Manual for 
Courts-Martial and the UCMJ.
    I want to be very clear about this, I am not advocating 
adopting the court-martial process as whole cloth; rather, a 
review needs to be done that would look at those processes and 
procedures that do not make sense for prosecuting law-of-war 
offenses committed on the battlefield. There are a number of 
courts-martial processes and procedures that would not work, 
and should not be applied to military commissions.
    In this process of developing military commission 
procedures, I believe the drafters--and I'm sure they will--
need to look at the provisions of the law of war and the Geneva 
Conventions, especially if this effort is not limited to 
detainees at Guantanamo, but is also to apply to all law-of-war 
violators on the battlefield.
    Thank you. I'm prepared to answer your questions.
    Chairman Warner. Thank you very much.
    Admiral Hutson.

  STATEMENT OF RADM JOHN D. HUTSON, USN (RET.), FORMER JUDGE 
                  ADVOCATE GENERAL OF THE NAVY

    Admiral Hutson. Mr. Chairman, Senator Levin, Senator 
McCain, and members of the committee, thank you for inviting 
us. It's nice to be heard on this subject.
    In some respects, to echo what Senator McCain said, Plato 
said that, ``Only the dead have seen the last of war.'' I think 
that it's true, and we have to bear in mind that war is, in 
some respects, but a prelude to the peace, and we have to wage 
the war in such a way that we can endure the peace when it 
comes. It's for that reason that there is little more important 
right now than to get this straight with military commissions.
    Military commissions have to be effective. I want to have 
prosecutions of terrorists. I want that process to work. But in 
order for it to work, the hearings are going to have to be full 
and fair, and they're going to have to be consistent with the 
mandates of Common Article 3 by ensuring that the judicial 
guarantees that are considered to be indispensable by all 
civilized people are observed.
    There sits, on the bookshelf of every U.S. judge advocate 
station anyplace in the world, a burgundy softcover book, and 
that book is the envy of every military on the face of the 
Earth. That book contains the Manual for Courts-Martial and the 
UCMJ. That, I believe, has to be the starting point for this 
discussion. To concur with General Romig, it is the starting 
point. There will be modifications that will be necessary to 
make. Those modifications should be very narrow, very specific, 
well-articulated, and based on absolute necessity.
    I testified yesterday at the House Armed Services Committee 
and was overwhelmed with rhetoric about marines busting down 
doors and having to stop in their tracks in order to give 
Article 31 rights. That example, and others like it, came up 
time and time and time again. Nobody, certainly not me, was 
advocating for that position. We have to make exceptions. In 
the rules of evidence, chain of custody, Article 31, Article 
32, what the media loves to call, but is so much better--its 
civilian equivalent of a grand jury, those kinds of things, by 
smart, wise, dedicated drafters can be accommodated very 
easily, I believe. In the end, we will end up with a process 
that will actually work. We will actually get some 
prosecutions, and the Supreme Court won't be beating us down in 
the effort. We can be proud of what it is we have accomplished. 
The rest of the world will watch it and say, ``They got it 
straight. They got back on track. They came to realize what it 
is they stood for, for all those years.'' Because what makes 
this country great is not our military strength, great as it 
is, or our economy, or our natural resources or island nature 
of our geography. What makes us strong is who we are and what 
we've stood for for generations. We must not lose that because 
if we lose that, we will have lost the war, and it will all be 
for naught.
    Thank you. I look forward to your questions.
    Chairman Warner. Thank you very much.
    Colleagues, given that we have a very large turnout this 
morning, I'd suggest that we adhere to the 6-minute rule in our 
question period.
    I want to assure the witnesses that, speaking for myself, 
but I've been consulting with my ranking member, this committee 
will not rush. This committee will offer the opportunity to 
people with diverse opinions to come in and express them. We're 
going to have a wide range of inquiries. I hope to have at 
least one or two hearings before the July period is over. 
During the summer months we may have briefings in lieu of 
hearings, given that so many members will not be in the locale 
of Washington, and then resume in September, with the hope of 
providing the leadership with the thoughts of this committee, 
and recommendations, either in the form of a bill or otherwise, 
as directed by the leadership, early on in September.
    I'd like to start off, we'll just go left to right. Again, 
the question is--we come back to this--to the extent we can 
follow the UCMJ. That's the basic premise that I've been 
operating on. So, I'd let you, General Black, how would you go 
about straightening out this situation, hopefully utilizing, to 
the extent possible, the existing UCMJ?
    General Black. Yes, sir. At the outset, I will tell you 
that commissions are the right answer, in some form. Indeed, 
what we have put together in the deliberative process, thus 
far, is a good start, but that much of what we have in the 
UCMJ, and, indeed, what we also can borrow from other sources, 
such as the international criminal tribunals and elsewhere, can 
create what I believe would be a perfect blend of rights and 
responsibilities that would make us literally the envy of the--
not only the people of our country, but the people of the 
world, in terms of the judicial process.
    I believe that what we're looking for here is not a 
document that starts from the UCMJ, or that is firmly founded 
there, or on the commissions, as they exist today, or on the 
international criminal tribunals, but a blend thereof. I think 
that a talented group of bright people can achieve that goal in 
a relatively short period of time, sir.
    Chairman Warner. It's the intent of the Chair to hopefully 
ask each of you, at some subsequent period, to put down, in 
writing, your own views. I hope that you're not rigidly bound 
by perspectives that eventually the administration comes up 
with, and that you can provide your best professional advice to 
the United States Congress.
    We'll accept that as a preliminary, and I'll now turn to 
the Admiral for the same question. Perhaps you could touch a 
little more on the complexity of discovery, the ability to 
provide witnesses, given that apprehensions take place on the 
battlefield and those associated with our uniformed people 
making that apprehension. Would they have to be subpoenaed back 
over here in the course of trials? These are some of the 
important issues that we have to ascertain. How do we protect 
classified information?
    Admiral McPherson. Thank you, Senator. You raise very 
difficult questions. That's what we're paid for, is to answer 
those difficult questions.
    We don't believe that Common Article 3, which is the 
departure point for the Supreme Court--requires we provide the 
same panoply or extension of rights that our citizens Article 
III courts or that our servicemembers enjoy under the UCMJ. 
While the UCMJ can be a good starting point, there must be many 
points of departure from there, for the exigencies of the 
battlefield that you spoke of. What we should avoid is trying 
to put a law enforcement overlay on these commissions. These 
individuals, these unlawful combatants, came to us on the 
battlefield. They didn't come to us through execution of a 
search warrant in some city of the United States. There is a 
basic difference between those two.
    One of the areas you spoke of was discovery. I would urge a 
distinction be made between discovery and evidence presented 
against the accused. Common Article 3 requires that the 
individual have access to, and the opportunity to review, the 
evidence presented against them. It does not require that they 
have the same discovery rights either under Article III of the 
Constitution or under the UCMJ. Indeed, under the UCMJ there 
are greater discovery rights than civilians have in civilian 
courts. We have open-file discovery under the UCMJ. The 
prosecutor is required to give their file, in its entirety, to 
an accused. That's not required under Common Article 3. What's 
required is that the accused in that commission have an 
opportunity to review the evidence that's going to be presented 
against them. I think that's a key distinction that we have to 
keep in mind and that we ought to make.
    At the same time, you raised the classified information 
issue, as well. We have processes, under the UCMJ, under our 
rules for court-martial, that deal with access to classified 
information and how that classified information can be placed 
in a public forum. We think not those same rules, but rules 
similar to that, could be crafted for commissions. Whether they 
be an ex parte review by the presiding officer who creates an 
unclassified summary of the evidence, whatever it may be, we 
think that bright people can come up with the rules that will 
satisfy Common Article 3 in those proceedings.
    Chairman Warner. Thank you, Admiral.
    General, same question. Perhaps you might comment, or 
subsequent witnesses comment, on the manner in which Common 
Article 3 was put together. It seems to me that it leaves a 
measure of latitude within which we can work.
    General Rives. Yes, Mr. Chairman, thank you very much.
    I agree with my colleagues that the UCMJ does provide a 
great starting point. The UCMJ took effect on Law Day in 1951. 
It replaced the systems that the United States had lived with 
for well over a century. It provides a great system of criminal 
justice, one that's second to none in the entire world. It 
provides all of the protections that we expect for American 
citizens, and it's only right that we provide those protections 
to those who voluntarily serve their Nation in uniform. It's a 
tremendous system that provides great protections, and it's 
geared toward the American system of justice that's designed 
toward protecting the rights of the innocent, even if it means 
that some guilty people go free. We have very careful 
safeguards for evidence and the type of evidence that can be 
admissible in a court-martial.
    It's important to realize that, while we're totally 
supportive of the UCMJ as providing a structure, there are 
various tribunals called for under the UCMJ. Provisions 
throughout the UCMJ recognize the procedural and substantive 
rules for courts-martial. Article 135, in particular, addresses 
courts of inquiry.
    My own proposal is that we come up with military commission 
rules, and maybe a manual for military commissions, under the 
UCMJ. Perhaps we have an Article 135(a) for military 
commissions that will detail the basic outlines that Congress 
wants us to include as substantive requirements, and then 
permit an executive order to have the details, just as we have 
the Manual for Courts-Martial with the details.
    You asked about Common Article 3, and my starting point 
with that is, Common Article 3 provides standards for basic 
decency. Most recently, the Detainee Treatment Act (DTA) of 
2005 recognizes and reaffirms; provides a baseline that the 
United States military has always trained to and has always 
insisted on adherence to. You do get into some tricky issues if 
we permit the readings that other people give to some of the 
provisions of Common Article 3.
    Chairman Warner. I'm going to have to ask that you yield. I 
want to get a brief response from the others. We'll come back 
and give you full opportunity.
    General? Your basic summary.
    General Sandkulher. My basic summary would be that it's a 
balancing. We have a military commissions procedure that was 
established that attempted to provide the fundamental rights. 
We have the UCMJ, which we know is the gold standard, that 
achieves the protection of fundamental rights. My view is that 
we are looking for a leveling between the two. In my 
perspective, if we start from the UCMJ, that's a method. If we 
build up from the military commissions as they exist today, 
that's another perspective that I think could be workable. Both 
require detailed examination. We talked about some of the 
items. Admiral Hutson mentioned Article 31 rights. Article 31 
exists in the UCMJ. We have to address how we handle that with 
regard to military commissions.
    Chairman Warner. Good. Thank you.
    General Romig?
    General Romig. Thank you, sir.
    As I said, I think that the court-martial process needs to 
be the baseline for the structure, and then looking at each one 
of the procedures and processes to see if they make sense for 
the unique environment of the battlefield.
    Traditionally, military commissions always started with the 
existing processes they had at that time for court-martial. I 
see that that is what we ought to be doing here, taking what we 
have, and adapting it to the unique environment. I think that 
can be done.
    Chairman Warner. Good.
    Admiral Hutson. I think it's interesting, Mr. Chairman, 
none of us are all that far apart.
    Chairman Warner. No, I observed that.
    Admiral Hutson. I think there's some basis for that.
    Chairman Warner. There certainly is no consensus here to 
just rubberstamp what's in place and just go on about our 
business.
    Admiral Hutson. That's absolutely right.
    The UCMJ, as great as it is, didn't come down from Mount 
Sinai on a stone tablet. We can modify it. That will be okay to 
do that. The heavens won't open.
    Common Article 3 says, in pertinent part, ``a regularly 
constituted court affording all the judicial guarantees which 
are recognized as indispensable by civilized peoples.'' I 
submit that there is no part of that, that the United States of 
America should try to get around. That should be the touchstone 
that we're always looking at. Does this comply with that?
    With regard to the UCMJ and the rules of evidence, for 
example, I think that evidence that comes in to be considered 
has to have an apparent authenticity and an apparent validity. 
For lawyers, that's a reasonably measurable standard.
    No matter how apparently valid or authentic, no coerced 
evidence is admissible.
    Chairman Warner. Right. Thank you.
    Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    I think, as Admiral Hutson said, there is not much 
difference between you. You all basically either believe that 
the UCMJ should be the starting point, and then exceptions 
should be crafted based on necessity, or some of you believe 
that it ought to be a blend with two or three starting points, 
the UCMJ being one of them, the current rules of the 
commissions being a second starting point, and perhaps 
international tribunal procedures being a third starting point.
    Is it fair to say that none of you believe we should simply 
ratify the current commission and their procedures? Is that a 
fair statement?
    General Black?
    General Black. Yes, sir.
    Admiral McPherson. Yes, sir. I think doing that would not 
fulfill Common Article 3.
    Senator Levin. All right.
    General Rives?
    General Rives. Yes, Senator. Clearly, we need to change.
    General Sandkulher. Yes, sir.
    Senator Levin. General Romig?
    General Romig. Yes, sir, absolutely.
    Admiral Hutson. Yes, sir.
    Senator Levin. Okay. So, it seems to me that is a critical 
starting point, is that none of you believe, as apparently some 
in the administration believe, that we should just simply 
ratify the current commission procedures and their operations.
    Now the question is, in what areas, as the chairman says, 
should we then revise, in effect, based on necessity, the 
procedures that exist either in UCMJ, the courts-martial 
manual, or in those other sources? Would you agree that those 
revisions should be based on practicality and necessity, and 
not convenience, as the way the Supreme Court said it?
    Admiral Hutson?
    Admiral Hutson. Absolutely. Yes, sir.
    Senator Levin. General?
    General Romig. Yes, sir.
    Senator Levin. Would you agree, General?
    General Sandkulher. Yes, sir.
    General Rives. Yes, sir.
    Senator Levin. Admiral?
    Admiral McPherson. Yes, sir.
    Senator Levin. General?
    General Black. Yes, sir.
    Senator Levin. Okay. I also want to pick up something that 
the chairman said, that we would be asking you to cooperate 
with us and the other panels in looking at those areas where 
exceptions need to be made based on necessity of war and the 
differences between a criminal trial before a commission and a 
court-martial. We would need you all to work with us. My 
request, particularly to the four of you still in uniform, 
would be that you would give us your personal and professional 
opinion.
    General Black. Yes, sir.
    Admiral McPherson. Yes, sir.
    General Rives. Absolutely.
    Senator Levin. I'll ask the two of you, but that's not 
necessary, you not being in a uniform anymore.
    General Romig. Certainly.
    Chairman Warner. If I could interrupt, that's the standard 
practice of this committee with regard to certain categories of 
flag and general officers when they come before us, and also 
high-ranking civilians. We're asking of you no more than we 
seek of the current incumbents.
    Thank you, Senator.
    Senator Levin. It is part of the oath that you take when 
you appear in front of this committee and we very much 
appreciate that.
    In addition to having access to evidence, as one of you 
said, that is going to be used, and be able to confront the 
evidence that will be used, would you agree that there may be 
exculpatory evidence that someone who's being tried for a 
crime--and I emphasize this, because there's some confusion out 
there--we're talking about criminal trials, we're not talking 
about detention; we're talking about criminal trials here--
would you agree that except for based on necessity or national 
security exigencies--someone who's tried for a crime should 
have access to exculpatory evidence?
    Admiral?
    Admiral Hutson. Absolutely. Yes, sir.
    General Romig. Absolutely.
    Senator Levin. General?
    General Sandkulher. Yes, sir.
    General Rives. Yes.
    Admiral McPherson. Yes, sir.
    Senator Levin. Okay.
    General Black. Yes, sir.
    Senator Levin. That, then, raises the question of the 
discovery. At least to the extent that access to exculpatory 
evidence is important, it's an important answer for all of us.
    In terms of the structure of the military commission 
process--and this is something Justice Kennedy expressed great 
concern about in his concurring opinion--is the composition of 
military commissions and the process for appealing decisions of 
military commissions through the DOD and up to the President--
according to Justice Kennedy, the structural differences 
between the existing military commissions and courts-martial--
one, the concentration of functions, including legal 
decisionmaking, in a single executive official; two, the less 
rigorous standards for composition of the tribunal; three, the 
creation of special review procedures in place of institutions 
created and regulated by Congress--all, in his opinion, removed 
safeguards that are important to the fairness of the 
proceedings and the independence of the court. He went on to 
say that there's no evident practical need to explain the 
departures.
    Then, Justice Stevens, speaking for the Court, specifically 
endorsed that portion of the concurring opinion of Justice 
Kennedy.
    Do you, personally, agree with Justice Kennedy and Justice 
Stevens that deviations from court-martial processes in the 
structure of military commissions, and the process for 
appealing commission decisions, could undermine the fairness 
and independence of the process? For instance, is there any 
practical need to permit the selection of a person other than a 
judge to be the presiding officer of a military commission?
    Admiral Hutson?
    Admiral Hutson. I concur with that completely, and that's 
one of the reasons I would use the UCMJ as the starting point, 
partly because that is a regularly constituted court. It also 
has passed close scrutiny, time and again, by the Supreme Court 
of the United States. Deviations from that, particularly with 
regard to the body that's constituted, the court itself, and 
the appeal process, are unnecessary and undermine the 
likelihood of it being endorsed either by the international 
community or, more importantly, by the United States Supreme 
Court.
    Senator Levin. Okay.
    General?
    General Romig. Yes, sir, I do. This is one of the issues 
that we advocated early on, that we need to have a military 
judge that rules on the law, you need to have a panel that 
rules on the facts, and you need to have independence of the 
military judge. We've come a large way that way in the military 
orders that were published both in 2002 and then in 2005, but 
we're still not there. The better idea is, let's start with the 
structure we have in the court-martial process, and then go 
from there.
    Senator Levin. Have a judge----
    General Romig. Absolutely.
    Senator Levin. Okay.
    General? Quickly. My time's up. If I could get answers from 
each of you.
    General Sandkulher. Sir, in practical effect we are using 
military judges now, those that were convened already, but 
it's----
    Senator Levin. But that is important, in your judgment?
    General Sandkulher. It's important to have a military judge 
present, yes, sir.
    Senator Levin. And presiding?
    General Sandkulher. Yes, sir.
    General Rives. I would call the presiding official 
``judge'' instead of ``presiding official.'' I believe that all 
of the judges ought to be certified, in accordance with Article 
26 of the UCMJ, as general court-martial judges.
    Senator Levin. Thank you.
    Admiral?
    Admiral McPherson. I agree that the military judge should 
be the presiding official. But I disagree with utilizing the 
UCMJ for appellate purposes. I think the scheme that was worked 
out under the DTA of the DC Circuit Court is the right answer.
    Senator Levin. Which we adopted here, overwhelmingly. Yes, 
sir.
    General?
    General Black. I believe we should have certified judges 
and independent judicial review, sir.
    Senator Levin. Thank you.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator Levin.
    Senator McCain.
    Senator McCain. I want to thank the witnesses. I think 
that, so far, we have established that the witnesses believe 
that the UCMJ is a good framework from which to begin, but 
taking into full consideration--as one of the witnesses said, 
this is not someone who has been arrested for shoplifting; this 
is an enemy terrorist, or alleged enemy terrorist, and certain 
provisions of the UCMJ would not apply. Is there anyone who 
disagrees with that assessment of your testimony so far? [No 
response.]
    On the issue of Common Article 3, the DOJ representative 
said, yesterday, that Common Article 3 ``prohibition of 
outrages upon personal dignity''--in particular, ``humiliating 
and degrading treatment''--is a phrase susceptible of uncertain 
and unpredictable application. He went on to say that the 
Supreme Court has held that interpreting treaty provisions such 
as Common Article 3, the meaning given by international 
tribunals and other state parties to the treaty, must be 
accorded consideration; therefore, this would create 
uncertainty.
    Isn't it true, General Black, that all international law--
that courts are take in consideration the views held by other 
parties, but the views held by other parties are not binding--
interpretations given by foreigners are not binding on the 
United States interpretation?
    General Black. Yes, sir, that's correct.
    Senator McCain. Do you agree with that? General Black, do 
you believe that Deputy Secretary England did the right thing 
by, in light of the Supreme Court decision, issuing a directive 
to DOD to adhere to Common Article 3? In so doing, does that 
impair our ability to wage the war on terrorism?
    General Black. I do agree with the reinforcement of the 
message that Common Article 3 is a baseline standard. I would 
say that, at least in the United States Army, and I'm confident 
in the other Services, we've been training to that standard, 
and living to that standard, since the beginning of our Army, 
and we continue to do so.
    Senator McCain. Admiral?
    Admiral McPherson. It created no new requirements for us. 
As General Black had said, we have been training to, and 
operating under, that standard for a long, long time.
    Senator McCain. General?
    General Rives. Yes, I agree.
    General Sandkulher. Yes, sir, my opinion is that that's 
been the baseline for a long time, sir.
    General Romig. Yes, sir, that's the baseline. As General 
Black said, we train to it, we always have. I'm just glad to 
see we're taking credit for what we do now.
    Admiral Hutson. I agree with what was said, but I'd point 
out that the President, on February 7, 2002, said that Common 
Article 3 did not apply. Although we've been training to it and 
so forth, I think this is an important, if only perhaps 
symbolic, change of policy by the administration, that I 
welcome.
    Senator McCain. A foreign court's interpretation of Common 
Article 3, as the Supreme Court says, should be considered, but 
would not be binding. Is that correct?
    Admiral Hutson. Yes, sir, Senator. It is, indeed. There are 
lots of terms in the law--probable cause, reasonable doubt--
that are susceptible to interpretation. The concerns with the 
interpretation of ``humiliating and degrading treatment'' arise 
only when you are very much pushing the envelope. If you're 
staying comfortably within the meaning and texture of Common 
Article 3, it's not going to be a problem.
    Senator McCain. I want to ask the obvious, General--we'll 
go back down this way. What we do, isn't it very important that 
we consider what other nations may interpret the Geneva 
Conventions and the treatment of prisoners in the case of our 
service men or women being taken captive?
    General Romig. Yes, that's correct. What we do could 
influence what they do. It's important that we set the higher 
standard.
    General Sandkulher. Yes, sir. I would like to go back to 
your point you were making before, about the foreign 
interpretation. We all agree that the foreign courts' 
interpretations do not control. However, there are developments 
that occur around the world that do impact how those words are 
interpreted, and there should be close consideration of the 
point made by the DOJ representative as to how other forums are 
interpreting that and how others will think that we should 
interpret that.
    Senator McCain. But we are not bound.
    General Sandkulher. We are not bound, but it becomes 
influential.
    Senator McCain. The way that the international criminal 
court has become influential, in some ways, is that----
    General Sandkulher. Yes, sir, and other forums. There's 
many other agencies out there who look at this language, and 
are giving meaning to the language, that we should be careful 
to recognize and set ourselves apart from.
    Senator McCain. We'd better be very careful how we 
interpret it, to make sure that any foreign court or 
constituted body would have any influence on our decisions, as 
far as the men and women of the American military are 
concerned.
    General Sandkulher. Yes, sir.
    Senator McCain. General, could I just ask----
    Chairman Warner. Would you suspend, just a minute?
    I ask the persons in the rear of the room--you've had the 
opportunity to silently make your statement--you have the 
option now to quietly join the audience or I'll ask the 
officers to escort you peacefully from the room.
    Please resume, Senator McCain.
    Senator McCain. General?
    General Rives. Senator, I agree that the interpretations of 
other nations in international courts are only matters for 
consideration by our courts. I also agree that it's critically 
important for us to hold ourselves to the highest standards so 
no one looks to us to say we lowered the standards, in the 
appropriate treatment of prisoners of war (POW), in particular.
    Senator McCain. You agree, Admiral and General, we ought to 
be able to work through this in a way that doesn't bounce us 
back to the Supreme Court, and then back again, to accommodate 
their instructions?
    General Rives. I do. I read the Supreme Court opinion as 
looking for further guidance from Congress, should you decide 
to give it, in this area.
    Senator McCain. Admiral?
    Admiral McPherson. I agree, Senator. I have two points. One 
is, currently the UCMJ and the Manual for Courts-Martial (MCM) 
direct our attention to international law--specifically, the 
law of war--as a consideration in interpreting other provisions 
of both those documents. That's not new for us. We've been 
doing that since we came on Active-Duty.
    The second point is, I think what you say is very 
important, in that it speaks to the need to take very careful 
and deliberate action in drafting and passing this legislation. 
It shouldn't be something we rush to. I like the timeline that 
you, Senator Warner, have laid out. That gives us time to, in a 
partnership with this body, come up with the right answer.
    Senator McCain. General Black?
    General Black. Yes, sir. I agree that we are not bound by 
the interpretations of other countries. I also agree that we 
can work through this in a meaningful and purposeful way. You 
said it best, sir, in your opening statement: setting the bar 
high protects our future generations of soldiers, sailors, and 
airmen.
    Senator McCain. I thank you, Mr. Chairman. I want to 
especially thank all the witnesses. I think they have been 
extremely helpful today with the collective 100 years or more 
of experience here before us today. I thank the witnesses.
    I thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator McCain. I'll join you 
in the observation. We are very privileged. I think it was a 
good way to have a starting point for this hearing.
    Now, Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Gentlemen, I join in welcoming you. I want to join with 
others to say how constructive and helpful you have been to not 
only our committee, but to the military and to our country. 
This has been enormously positive and helpful for all of us. I 
thank you for your service--as Senator McCain said, about 100 
or 120 years of experience that are before us, and a remarkable 
amount of commonality and viewpoints.
    Sitting here today, I was wondering, how did we ever get it 
so wrong? How can we protect it, that we don't get it wrong in 
the future? As I was sitting here and listening to all of you, 
I just said, ``if your voices, your counsel, your ideas, so 
powerful here among Republicans and Democrats alike, have been 
over there in positions of responsibility, how is it that the 
DOJ has prosecuted--261 defendants have been convicted or 
pleaded guilty in terrorism or terrorism-related cases, and we 
have 560 of which only 4 have been charged, and no one has been 
convicted? Why is it that we have this so wrong? What can we 
learn from that experience that isn't going to interfere with 
trying to make sure that we're going to get it right in the 
beginning? That's a question.
    There are several members of the panel here that have been 
there right from the very beginning when what they call the MC-
01 was published. We have had articles that have been written, 
the most comprehensive one in the New York Times on October 24, 
2004, by Tim Golden, ``After Terror, A Secret Rewriting of 
Military Law.'' In that article, there are references to a 
number of those of you who are sitting here being involved in 
working groups, that you submitted your views. I'm sure a 
number of those views were similar to what you've said today. 
Nonetheless, we had the publication of commissions that came 
out. What went wrong there? What can we learn from that 
experience so that we're not going to have it repeated, in 
terms of the future? We're going to delay the prosecution and 
bringing to justice those that ought to be prosecuted and 
brought to justice?
    I'll start with General Rives. Would you comment?
    General Rives. Thank you, Senator. It is critically 
important to get this right. I believe one of the problems with 
proceeding more quickly had been a desire to make sure we got 
it right.
    The uniformed professionals, the Judges Advocate who 
participated in working groups, have certain ideas. As the 
committee here has asked, we have used our independent voices 
to tell what we really believe is the right way to go. 
Ultimately, we're not the decisionmakers. The political leaders 
in the Pentagon make a number of decisions. All we can ask, I 
suppose, is that they give us the opportunity to be heard, and 
that they listen to and consider our inputs on these matters.
    Senator Kennedy. General Sandkuhler?
    General Sandkulher. Sir, I would repeat some of what 
General Rives said. We have been involved with the working 
groups. The atmosphere post-September 11 was different from the 
atmosphere today. We worked hard to make sure that we got it 
right. We gave our voice to concerns, and we were heard. 
Decisions were made. I think I would equate it to: sometimes 
legislation doesn't achieve the expected goal, and you have to 
go back and correct that. Unfortunately, we're here today.
    Senator Kennedy. In the New York Times article, it talked 
about a group of experienced lawyers who had been meeting with 
Mr. Haynes, who's a general counsel, repeatedly on the process, 
began to suspect what they said did not resonate outside the 
Pentagon, several of them said. On Friday, November 9, 2001, 
officials said, Mr. Haynes called the head of the team, Colonel 
Lawrence J. Morris, into his office to review a draft of the 
presidential order. He was given 30 minutes to study, but not 
allowed to keep a copy, or even take notes. The following day, 
the Army's Judge Advocate, Major General Romig, hurriedly 
convened a meeting of senior military lawyers to discuss the 
response. The group worked through Veterans Day weekend to 
prepare suggestions that would have moved the tribunals closer 
to the existing military justice. When the final document was 
issued that Tuesday, it reflected none of the officers' ideas. 
Several military officials said they hadn't changed a thing, 
one official said.
    Is that fairly accurate?
    General Romig. Yes, sir, it is.
    Senator Kennedy. Would you say that your suggestions or 
recommendations--can you provide for us, to the committee, the 
copies of your comments, and analysis on the military 
commissions from 2001 to 2002?
    Chairman Warner. I think the question has been put. We 
should allow the witness time to reflect and take such 
consultations as need be to respond. Would that be agreeable to 
the Senator? I would suggest he respond to that for the record.
    Would you feel more comfortable with that, General Romig?
    General Romig. Yes, sir.
    Let me give it a little background--there was a long 
process. Prior to that November presidential order, we were 
engaged in doing research. We were essentially looking at the 
historical precedents and putting together and it was a very 
tentative product at that time--recommendations on where we 
thought we should go.
    You're correct, Colonel Morris headed that effort. He was, 
and still is, a great young colonel--not as young as he was 
then, but still a great colonel. As we went through the 
process--you're correct, there was a meeting on that weekend. 
We actually met at my house. We were not allowed to have copies 
of that document. Our comments were oral comments--they were 
not written comments--back through Colonel Morris.
    After the order came out, there was an extended period of 
time where we worked on the first military order. There was a 
lot of back and forth as to what are the correct procedures--
given we now have this order that we have to live with that 
sets out the structure and some of the procedure and processes 
very superficially, but, nevertheless, sets them out. It was 
our impression that a lot of that paralleled what was done in 
the Quirin case, the Supreme Court case in 1942.
    We were able to get a lot of due process back into the 
first product. There are literally hundreds of memos and things 
that went back and forth. There were working groups that met.
    Senator Kennedy. My time is up, but finally, maybe Admiral 
Hutson, were the final and ultimate decisions made by the Judge 
Advocates General (JAGs), the lawyers, or by the politicians?
    Admiral Hutson. Sir, I'm sorry, I was gone. I retired in 
2000. So, I'm not able to go.
    General?
    General Romig. As is always the case, they ultimately were 
made by the civilians.
    Senator Kennedy. Thank you.
    Chairman Warner. Senator Kennedy and other colleagues, the 
committee will, in consultation with each of these witnesses, 
seek to get as much material as we can regarding the decision 
process as we move along in this hearing. In no way am I trying 
to curtail any member or the committee's ability to probe and 
ascertain all the facts that are relevant to the challenge 
before us.
    Senator Kennedy. Great, thanks.
    Chairman Warner. Thank you, gentlemen. Why don't you take a 
seventh-inning stretch. We are paid to vote. That's what we're 
going to do.
    [Recess at 11:05 a.m.]
    [Resumed at 11:15 a.m.]
    Senator McCain [presiding]. If the witnesses would return, 
Senator Warner is on his way back. In the interest of not 
taking too much time of the witnesses' time, we'll go ahead and 
reconvene. We'll have those West Point cadets be quiet down 
there. I'll tell you, if they were Naval Academy guys, they'd 
have been quiet. [Laughter.]
    Thanks for being here today, guys.
    I would like to ask Senator Graham if he would like to go 
ahead and be recognized.
    Senator Graham. Thank you, Mr. Chairman.
    Gentlemen, you just make me proud to be a part of the JAG 
Corps. I think you represent not only the best in military 
officership, but also the best in what we're trying to 
accomplish as a Nation in the war on terrorism.
    I want to start with Senator McCain's line of questioning. 
Simply put, with appropriate definition to how Common Article 3 
will be applied domestically, can we win the war and still live 
within Common Article 3?
    General Black. Yes, sir.
    Admiral McPherson. I agree with that, yes, sir.
    General Rives. Yes.
    General Sandkulher. Yes, sir.
    General Romig. Absolutely, sir.
    Admiral Hutson. Yes, sir, in fact, I'd turn it around and 
say I don't think we can win the war unless we live within 
Common Article 3.
    Senator Graham. That's probably a better way to put it. 
Let's start with that general framework, that we can, and we 
must, win the war using our value systems, because if we change 
who we are to win the war, then I agree with you, Admiral 
Hutson, we've lost.
    Now, the military commission infrastructure that we're 
talking about comes from the UCMJ, is that correct, General 
Rives?
    General Rives. Yes.
    Senator Graham. It's my understanding that the reason 
Congress made available military commissions to try war crimes 
in the code itself is because we were not very proud of the 
products that were going on before it was part of the code, in 
World War II and some other cases, where the trial procedures 
were less than adequate. Is that correct?
    Anybody. Is that correct, Admiral Hutson?
    Admiral Hutson. Yes, it.
    Senator Graham. As a matter of fact, Congress made a 
conscious decision after World War II, in 1951, when the code 
was enacted, that we're not going to go down that road again. 
We're going to make military commissions an option, but we're 
going to give some structure to them that we'll feel more 
comfortable with, as a Nation. Does everyone agree with that 
concept?
    That structure was envisioned by Congress to have, as its 
baseline, similarity or uniformity where practical to the 
underlying document, the UCMJ. Is that correct, General Black?
    General Black. Yes, sir.
    Senator Graham. So, Congress understood there would be two 
forums available in a time of war for the United States 
Government through its military to operate within--one, the 
UCMJ, to try our people for any alleged misconduct engaged in 
by our people, using the UCMJ, and realizing that other people 
may be tried, in terms of law-of-armed-conflict violations that 
are not part of our military, but the military would conduct 
those trials; thus, creating the military commission as a 
second forum. Do you all agree with that?
    Let the record reflect yes.
    It seems to me the Court understands that, equally; and 
that my belief has been--since our first time we met here--that 
for us to get it right we need to have military commissions as 
uniform as possible with the UCMJ, because that's the root 
source of the law of military commissions. Is that correct?
    An affirmative answer by everyone on the panel.
    Understanding needs to deviate--as Admiral Hutson has 
indicated, need to be well-articulated and well-defined. Does 
everyone agree there will be times when you need to deviate 
from the UCMJ when it comes to a military commission trial 
venue?
    General Black. Absolutely.
    Admiral McPherson. Absolutely.
    Senator Graham. The international criminal court has 
hearsay rules far more lax than the UCMJ or the Federal Rules 
of Evidence. Do you all agree with that?
    General Black. Yes, sir.
    Admiral McPherson. Yes, sir.
    Senator Graham. Would you agree that one of the things we 
might do is look at the international criminal court's hearsay 
rules when it comes time to create hearsay legislation for 
military commissions?
    General Black. Yes, sir.
    Admiral McPherson. Yes, sir.
    Senator Graham. Is that okay with you, Admiral Hutson?
    Admiral Hutson. Yes, sir.
    Senator Graham. We're not going to take the whole 6 minutes 
writing the law. What I would like to reinforce to the 
committee members, that I think this panel has it right, that 
this panel represents military expertise and legal knowledge 
not possessed by many. They are unique. But what they possess, 
more than anything else, Mr. Chairman, is, they don't have any 
ax to grind. They're not going to get elected in November. They 
don't have to worry about political appointments. They have to 
just worry about following the law and being a good officer, 
and, in your case, being good citizens.
    Now, the more problematic area, for me, is the application 
of Common Article 3 in terms of it not being a regularly 
constituted court. We could give you a regularly constituted 
court that meets human dignity standards really quickly, but 
we're not going to do it quickly, we're going to do it really 
thoughtfully. When it comes to the techniques that would be 
applied to interrogating non-uniformed personnel--al Qaeda 
members, Sheikh Mohammed and people like him that are the 
masterminds of September 11--that is a different arena. Sheikh 
Mohammed is not a member of a uniformed service representing a 
sovereign nation; he is a terrorist whose battlefield includes 
the schoolbus, the schoolhouse, and any and all institutions 
that represent democracy.
    Having said that, it is not about Sheikh Mohammed and his 
way of thinking; it is about us. When he falls into our hands, 
it becomes about us. Can we prove to the world that we're 
different than Sheikh Mohammed? One of the ways to do it would 
be how we treat him. I would like to aggressively interrogate 
every al Qaeda member to make sure that our Nation is defended 
and still live within the spirit of who we are.
    Admiral Hutson, could you give me some ideas of how we 
could do that?
    Admiral Hutson. I think that that is absolutely necessary, 
because, you're right, we need to be able to interrogate 
people, we need to be able to get intelligence information from 
them. The question of interrogation and gaining intelligence 
information is a somewhat different question than prosecution.
    Senator Graham. Don't you think it's the hardest question 
that we face as a Nation?
    Admiral Hutson. That's right. We made a decision, as a 
Nation, that we were going to treat terrorism, henceforth, as a 
war, rather than as a criminal activity. I think that was the 
right decision.
    Senator Graham. Yes.
    Admiral Hutson. It is, in itself, a new paradigm, which 
carries with it certain difficulties that we need to be able to 
address. One of those difficulties is that we have decided 
that, during the course of this war, during the prosecution of 
the war, we also want to prosecute people criminally. Those two 
things don't exactly match.
    Senator Graham. Right.
    Admiral Hutson. We need to be able to figure out where to 
draw the line, how to make those kinds of distinctions so that 
we can both prosecute the war successfully and prosecute, to 
use the verb in a different way, judicially, the terrorists.
    Senator Graham. Well said. I would ask your input on how to 
do that. I know my time's up, and I apologize, Mr. Chairman; 
this is my last line of inquiry--title 18 of the United States 
Code makes it a felony for a military member or civilian to 
violate the Geneva Convention. Is that correct? Punishable by 
death.
    General Rives. To violate Common Article 3.
    Senator Graham. To violate Common Article 3, even more 
specifically. The dilemma we have now is, we need to look at 
title 18, in terms of the Hamdan decision, and we need to make 
sure that those that are on the front lines of interrogating al 
Qaeda members have enough guidance so that they will not 
inadvertently put themselves in legal jeopardy.
    I would ask the panel to help us find a way to reconcile 
the standards of title 18, which makes it a felony for our 
troops to violate Common Article 3, and how we write this 
statute, because I think the more specific the statute, the 
better the guidance to our troops. The thing about the treaty 
that probably needs to be reined in is to give some structural 
definition to it when it comes to domestic law application. I 
would ask for your input, because, to me, that's the hardest 
challenge the committee faces.
    General Rives, you were involved in a working group, back 
in January 2003, about interrogation policies. Is that correct?
    General Rives. That's correct, Senator.
    Senator Graham. As a matter of fact, you and other Judges 
Advocate strenuously objected to the interrogation techniques 
being proposed in December 2002, because you thought they would 
violate the UCMJ if our personnel engaged in those techniques. 
Is that correct?
    General Rives. We had a number of objections, yes, sir.
    Senator Graham. Okay. The final product that came out, in 
April 2003, did you ever see that product?
    General Rives. I saw the April 2003 report about 14 months 
after it was issued. No one in Air Force JAG had seen it before 
then, to my knowledge.
    Senator Graham. Thank you very much.
    No further questions.
    Chairman Warner [presiding]. Colleagues, we'll now turn to 
Senator Dayton.
    Senator Dayton. Thank you, Mr. Chairman. Thank you for 
convening this very important hearing. I thank you, also, for 
what you said at the outset about the need to proceed on this 
in a deliberative and bipartisan way.
    Having said that, I think it's also important that we 
recognize that what we're discussing here today, the parameters 
of what you gentlemen are recommending to us today, is a very 
major departure from the practices of the administration to 
date. I thank the Supreme Court for this imperative. I think 
it's long overdue that Congress asserted itself in this area. 
Now we have the opportunity and the requirement to do so.
    We have a situation where we have people who have been held 
now for over 4 years, in some instances, at some indeterminate 
locations, in some cases, that have been subjected to what some 
people allege is torture in part of their interrogation. Would 
it be possible, under our UCMJ, to now introduce or assimilate 
these people into a new or revised set of procedures?
    Anybody care to respond?
    General Black. Yes, sir, I believe it could.
    Senator Dayton. All right.
    General Black. We can do that. We can make a transition 
from where we have been to a new and revised commissions 
process, and do so successfully.
    Senator Dayton. If those alleged actions had occurred to 
someone who is under the province of the UCMJ, would that be, 
then, allowed to give that person a, ``fair'' trial, or would 
that disqualify or unduly prejudice the case against that 
individual?
    General Black. I think you've lost me a little bit there, 
sir.
    Senator Dayton. If we had done to one of ours who was 
supposed to be treated according to the UCMJ, which I believe 
you're recommending, or Common Article 3 of the Geneva 
Convention--if we had violated either of those by our treatment 
and by the length of time we detained that person, would that 
compromise, or would that disqualify, a trial or adjudication 
of that individual?
    General Black. Sir, if you're asking whether a person who's 
been in our custody, and presumably facing commissions, could, 
in a subsequent iteration of the commissions, challenge their 
continued detention, I think the rule should be drafted to 
allow something like that.
    Senator Dayton. Anyone else?
    Admiral Hutson. One of the great strengths of the UCMJ and 
the case law that emanates out of that is that there are some 
very strong protective rules with regard to speedy trial. 
That's one of the things that we would have to address, in 
terms of modifications, because there are presumptions with 
regard to speedy trial after 120 days, so that somebody who's 
been in a dark, dank hole for 4 years is going to run into 
speedy-trial issues, I suppose, and that would have to be 
addressed.
    As I said earlier, I think it is absolutely imperative that 
we draw a bright line prohibiting coerced evidence of any kind. 
In the hypothetical that you pose, that may create problems, in 
and of itself. The answer to the basic question of ``could we 
use this system for those people?'' is yes.
    Having said that, are you going to get a conviction when 
you exclude evidence and you go through all the other things 
that we would impose into the system? The answer is, I don't 
know.
    Senator Dayton. Anyone else?
    General Rives. Senator, it depends on the procedural rules 
that we adopt. For example, if we use the court-martial 
processes, evidence obtained through torture would not be 
admissible, clearly. For the commission rules, it depends on 
what processes we have. If we say that evidence obtained 
through torture is not admissible for any purpose, that 
evidence would not be admissible, but we may be able to get a 
conviction based on independent evidence that was not acquired 
by means of torture.
    Senator Dayton. We have to speculate, to some extent. Given 
the spectrum of individuals that are in custody throughout the 
world, their alleged actions, can we devise one system of 
procedures that will apply to all of those cases, or are we 
going to have to devise multiple systems based on different 
situations and people?
    Admiral McPherson. I think we can devise one system that 
would apply to all, but I think, realistically, there may be 
some individuals that the evidence is such that we simply could 
not prosecute them; we have to be willing to embrace that 
eventuality, as well.
    Senator Dayton. What do we do in those instances?
    Admiral McPherson. I think we continue to hold them until 
the cessation of hostilities, in accordance with the Geneva 
Convention.
    Senator Dayton. That, ``the cessation of those 
hostilities,'' being what we define as the war against 
terrorism.
    Admiral McPherson. That's correct. Yes, sir.
    Senator Dayton. Okay. Anyone else care to respond? [No 
response.]
    No further questions. Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    You announced at the beginning that this is the first of a 
series of hearings that we're going to have. I see some dangers 
in this, because some of the responses that we've gotten, some 
of the opinions that we've received here, some people at this 
table, and others, are going to go dancing to the media and say 
that we now know where we're going to go with this thing, when, 
in fact, we don't.
    About half of you, in your opening statements, talked about 
baselines, that you're going to use either Common Article 3 or 
the UCMJ. Now, the chief criticism that we hear from people, 
the hysteria that hit the media right after the United States 
Supreme Court decision, was that we are going to be affording, 
as we would do, I suppose, if we used as a baseline--or this--
could be interpreted this way--the UCMJ--in affording the same 
privileges and defenses and--for the terrorists as we would for 
our own troops. For those of you who are talking about using 
that as a baseline, I assume this is not where you want to end 
up. Is that correct? I can't remember which one of you said 
that you wanted to use that as a baseline.
    General Romig. Senator, I was one of the ones that said 
that. I also said that we needed to look at those things in the 
UCMJ that did not make sense, that would not work, and should 
not be applied to military commissions, given the environment 
that these people come from, the battlefield. Do you have 
evidence that you can use on the battlefield? Do you have chain 
of custody, like you have in a search-and-seizure that you 
might have in the civilian life? Those all need to be looked 
at. I still think we could, as a baseline, using the structure 
and the processes and procedures, start with the UCMJ, and then 
look at those things that don't make sense.
    Senator Inhofe. Still you would say that we're not going to 
be affording them the same privilege as our own troops.
    General Romig. It depends on what it is.
    Senator Inhofe. Okay.
    Those of you who said you wanted to use Common Article 3, I 
know what's going to happen on that, too. There are going to be 
people going to the media and saying, ``all right, they all 
agreed,'' because you all did say you are training toward 
Common Article 3. You didn't say, necessarily, that we are 
already there, but we could achieve that. My concern--and I 
would believe that some of the terms in Common Article 3 are 
inherently vague, is exactly what does ``humiliating 
treatment'' mean? What does ``degrading treatment'' mean? Is 
there any specific written guidance that the armed services 
have developed to give definition to these terms? Do you all 
have firm definitions of these terms that you think we could 
train to? Do you see that they are vague, or not vague? Are 
they specific in your minds?
    Admiral Hutson. Senator, legal terms and other sorts of 
terms are inherently vague and need a certain amount of 
definition. Part of the definition comes from the Army Field 
Manual. Part of the definition comes from 200 years of 
tradition. But, as I said earlier, the problems are going to 
arise when we're pushing the envelope. If we stay comfortably 
within it, we're not going to have to worry so much about it. 
We can't let the inherent unavoidable vagueness of all of these 
terms such as ``torture,'' stop the effort, however. I think we 
have to work toward defining them as best we can, and 
explaining them to the troops. I'm worried about the boots on 
the ground.
    Senator Inhofe. That's exactly why I'm bringing this up. 
These guys are out in battle, they're going to have to have, in 
their own mind, a definite determination as to what these terms 
mean.
    Admiral Hutson. Absolutely.
    Senator Inhofe. What do you think, General?
    General Sandkulher. Sir, I'd like to go back to the 
training level of the people in the field. When we train 
marines, soldiers, sailors, and airmen, when we talk about 
handling people that we grab or get on the battlefield, we're 
normally talking about in context of the Geneva Conventions 
regarding POWs. Our training levels are generally to the POW 
standards. When we take somebody on the battlefield, we are 
applying those standards, which are far higher than Common 
Article 3.
    I cannot recall for you a document that defines ``inhumane 
treatment'' or ``humiliating acts'' that ousts in our panoply 
of----
    Senator Inhofe. Okay. Our time's running out here. Let's 
get back to the----
    Chairman Warner. I want to make sure the recorder got the 
last of your sentence. You cannot recall----
    General Sandkulher. I can't recall, Senator, a document 
that defines ``inhumane treatment'' or ``humiliating acts.'' I 
don't know if we have one out there that has a listing of--we 
may have examples of what could constitute it, but I can't 
think of a definition, off the top of my head. That would be 
something for the record that we could respond to.
    [The information referred to follows:]

    General Sandkuhler was correct in that the Department of Defense 
(DOD) did not have a document defining ``inhumane treatment'' or 
``humiliating acts.'' There were, however, several documents used by 
the Services that addressed those issues by listing examples of 
prohibited acts.
    For instance, at the time of Brigadier General Sandkuhler's 
testimony, Army Field Manual (FM) 34-52, September 28, 1992, was in 
effect and governed interrogation procedures for DOD. It was referenced 
in the Detainee Treatment Act (DTA) of 2005, as the guiding document 
for interrogations. This document was superseded by FM 2-22.3, on 
September 6, 2006, states that the Geneva Conventions and U.S. policy 
``expressly prohibit acts of violence or intimidation, including 
physical or mental torture, threats, insults, or exposure to inhumane 
treatment as a means of or aid to interrogation.'' (See FM 34-52, page 
1-8).
    FM 34-52 does not give a definition of ``inhumane treatment,'' but 
the document does set forth specific examples of physical torture, 
mental torture, and coercion. It also lists articles of the UMCJ that 
may be violated if interrogators were to cross the line. (See FM 34-52, 
page 1-8, and Appendix A). Figure 1-4 (page 1-11) of FM 34-52, also 
lists pertinent articles of the Geneva Convention Relative to the 
Treatment of Prisoners of War, which must be followed. Additionally, 
Appendix D lists pertinent articles of the Geneva Convention Relative 
to the Protection of Civilian Persons in Time of War, which must be 
followed, including Article 5, which states that individual protected 
persons shall ``be treated with humanity.''
    Moreover, section 1-5 of Army Regulation 190-8, sets forth the 
general protection policy with respect to the treatment of enemy 
prisoners of war and other detained persons, and specifically requires 
that ``prisoners will receive humane treatment without regard to race, 
nationality, religion, political opinion, sex, or other criteria.'' It 
then lists several acts that 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. The very next paragraph states 
that all persons 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.''
    Also, DOD Directive 3115.09, DOD Intelligence Interrogations, 
Detainee Debriefings, and Tactical Questioning, of 3 November 2005, 
states that the DOD policy is to treat all captured or detained 
personnel humanely, and that all interrogations, debriefings, and 
tactical questioning shall be conducted humanely in accordance with 
applicable law and policy. The document does not define the term 
``humanely.''
    Subsequent to Brigadier General Sandkuhler's testimony, the new 
Army FM on intelligence interrogations was promulgated. This is FM 2-
22.3, Human Intelligence Collector Operations, and was promulgated on 
September 6, 2006. FM 2-22.3 states that the principles and techniques 
of human intelligence collection are to be used within the constraints 
established by U.S. law, including the Uniform Code of Military 
Justice, the Geneva Conventions of 1949, and the DTA of 2005. (See FM 
2-22.3, page vii). It further states:

          All captured or detained personnel, regardless of status, 
        shall be treated humanely, and in accordance with the DTA of 
        2005 and DOD Directive 2310.1E, ``Department of Defense 
        Detainee Program'', and no person in the custody or under the 
        control of DOD, regardless of nationality or physical location, 
        shall be subject to torture or cruel, inhuman, or degrading 
        treatment or punishment, in accordance with and as defined in 
        U.S. law. (See page viii).

    On page 5-21 of FM 2-22.3, there is a discussion regarding the 
prohibition against cruel, inhuman, or degrading treatment. If 
references the DTA, which defines ``cruel, inhuman or degrading 
treatment'' as the ``cruel, unusual, and inhumane treatment or 
punishment prohibited by the 5th, 8th, and 14th amendments to the 
Constitution of the United States.'' FM 2-22.3 provides a list of 
actions that will not be approved in any circumstance. FM 2-22.3 
provides two tests to be used in order to determine whether a 
contemplated approach or technique would be prohibited. These tests are 
found on page 5-22. These tests demonstrate the difficulty in trying to 
establish hard and fast definitions to terms such as ``degrading 
treatment'' or ``inhumane acts.'' FM 2-22.3 addresses the issue of 
inhumane acts throughout the document without defining the term. (See 
FM 2-22.3, pages 5-26, 6-9, App. A, M-1, and M-4-5).
    Finally, DOD Directive 2310.01E, the Department of Defense Detainee 
Program, dated 5 September 2006, states that all detainees shall be 
treated humanely and in accordance with U.S. law, the law of war, and 
applicable U.S. policy. It provides that at a minimum the standards of 
Common Article 3 to the Geneva Conventions of 1949, shall apply. DOD 
Directive 2310.01E includes the text of Common Article 3 as an 
enclosure. (See Enclosure 3, DOD Directive 2310.01E). Enclosure 4 to 
DOD Directive 2310.01E also contains a Detainee Treatment Policy. DOD 
Directive 2310.01E does not specifically define the term ``humane 
treatment,'' but it does provide specific examples of both proper and 
improper treatment.
    The Geneva Conventions of 1949, which are the guiding documents in 
this area, do not define the terms ``humiliating'' and ``degrading 
treatment'', which are found in Common Article 3. Like all legal 
instruments, the text of Common Article 3 is subject to interpretation. 
As is true for legal interpretation elsewhere, a reasonable person 
standard should be followed.

    Chairman Warner. There is the Army Field Manual, the 
current issue. Then, Senator McCain and I are anxious to see 
how soon the new and revised one will come out. That's a 
separate subject we're going to probe together.
    General Sandkulher. Ask General Black, sir.
    Senator Inhofe. Reclaiming my time, here.
    When you talk about the baseline, using UCMJ or using the 
Common Article 3, would any of you want to use as a baseline 
the existing procedures?
    Admiral McPherson. As I testified before, I think the 
existing procedures are wanting.
    Senator Inhofe. Do you all? Anyone?
    General Romig. I agree.
    Senator Inhofe. You're talking about a baseline here, 
you're not talking about an end product. We've already 
established that.
    General Romig. That's correct.
    Senator Inhofe. But a place to start. Would any of you 
think that, currently, the procedures that have been in place 
would be a good baseline to start?
    General Sandkulher. I think you could start there, Senator. 
I think you could start with the UCMJ. I think we need to work 
towards a middle between those two, if want to call them 
extremes.
    Senator Inhofe. All right, sir.
    This morning, in the New York Times--I'll read this to you, 
and I'm going to ask you if you agree with this--``The 
administration lawyers have argued that the most desirable 
solution would be for Congress to pass a law approving the 
tribunals that the Court said the President could not establish 
in his own proceedings that would grant minimum rights to 
detainees.''
    Do any of you support that statement?
    General Romig. No, Senator.
    Admiral McPherson. No, sir.
    Senator Inhofe. Thank you, Mr. Chairman.
    Chairman Warner. Thank you.
    Forgive me for the interruption, but I thought that 
response to your important question had to be accurately 
reflected in the record.
    Senator Clinton.
    Senator Clinton. Thank you, Mr. Chairman.
    Thanks especially to this panel. I commend you all for your 
years of service and for your deep concern about the issues 
that we're discussing today, and I certainly look forward to 
your continuing guidance. I hope that those of you still in 
uniform--actively involved and permitted in the consultation 
process going forward, so that we try to work this out on a 
bipartisan, bicameral basis, certainly for the good of our men 
and women in uniform, and, frankly, for the good of our 
country.
    I think that there's been so much confusion about this 
issue, the way it's been discussed, the way it's been, to some 
extent, sensationalized. I appreciate the very sober and 
prudent way you've addressed these matters.
    Some of you have talked about looking to the Nuremberg 
trials, and even the other international tribunals that have 
been established over the last 50 years, as examples as we move 
forward and try to determine what best course to take. Do any 
of you have specific lessons that you think we should draw 
either to apply or not apply from those international 
experiences?
    Admiral Hutson. I would say accountability, coming out of 
Nuremberg.
    Senator Clinton. Accountability up and down the chain of 
command?
    Admiral Hutson. Accountability up and down the chain of 
command, that people are responsible for the actions of their 
subordinates, and so that when you're trying bin Laden, he's 
Yamashita--I think that that's one of the lessons that came out 
of World War II, and that following illegal orders isn't a 
defense.
    Senator Clinton. Can there be illegal orders when you have 
a terrorist organization? Is there such a thing as a baseline 
of legality? I think those are the kinds of questions people 
have to ask. This is different than what we've attempted to do 
before, and I think looking to the international tribunals 
could be enlightening.
    Anyone else have anything to add about that? Yes, General?
    General Sandkulher. Senator, we've looked at some of the 
ideas of discovery that exist under the Rwanda and the Yugoslav 
international criminal courts that have procedures that 
recognize the need for classified information or security 
documents of interest to the other nations being controlled in 
a way that is not perhaps revealed to an accused. There are 
items out there from those forum that we think we can look at, 
and we have looked at the past, that provide us with criteria 
that are internationally acceptable.
    Senator Clinton. We've had two examples, one here, with the 
Moussaoui trial and one in Germany, where the refusal of our 
Government to share information arguably affected the outcomes 
of those trials. I think this question about confidential 
evidence and hearsay evidence is going to be especially thorny.
    One of the concerns that I have is that, as you look at the 
evidence that could be presented, a lot of it will be hearsay 
or confidential, classified in some form or another. May I ask 
if you've given thought, as I'm sure you have, that you could 
share with us, about the understanding of the specific issue of 
confidentiality as a precedent in war crimes tribunals? Would 
the rules in the Classified Information Procedures Act (CIPA) 
be sufficient? On the issue of hearsay and the challenges of 
obtaining evidence from continents away, from battlefields that 
are 8,000 feet in the air, how do you address that? Does 
anybody have that initial impressions that you'd be willing to 
share with us on confidentiality and hearsay?
    Admiral Hutson. Senator, Military Rule of Evidence 505 
deals quite nicely with classified sources-and-means kinds of 
things, where there's a variety of ways, in camera, in showing 
it to the judge in camera, unclassified summaries and that sort 
of thing, that can be used as, again, a starting point or a 
baseline for dealing with that aspect of your question.
    With regard to hearsay, of course, you're absolutely right, 
there's going to be lots of hearsay problems if you were to 
just use the military rules with regard to hearsay, which are 
basically the same as the Federal rules.
    I would suggest that you need to have some sort of apparent 
authenticity--it may be corroborating evidence--aspect to it so 
that what you can't do, I think, is say to the accused, ``We 
know you're guilty. We can't tell you why. We can't tell you 
who told us something. We can't tell you what. But you're 
guilty.''
    Senator Clinton. I also want to reinforce something that 
one of you just said, and that is, we're not talking about a 
choice between trying somebody or letting somebody go. That's 
been very confusing to people in this process, and there's been 
a lot of hyped rhetoric about ``You're going to tear down the 
system. Look what the Supreme Court did. We're going to let all 
these terrorists loose.'' You do not have to let people go. 
These are enemy combatants, POWs, whatever we want to call 
them. We had Nazis in prison camps in our country for years. 
Then the hostilities ended, and they were let go.
    I think it's useful, not only to be talking about the 
details as to what we need to consider, going forward, but 
maybe to clear the air a little bit. I listened to some of the 
hearings that some of you participated in yesterday, and 
frankly, it was embarrassing.
    Senator Graham. Would the Senator yield?
    Senator Clinton. I certainly would, Mr. Chairman.
    Senator Graham. Isn't it correct that you could be 
acquitted in a military commission and still be held as an 
enemy combatant, even if you're acquitted?
    Admiral McPherson. That's correct, sir.
    Senator Graham. To go to your point, you're absolutely 
right.
    Senator Clinton. Thank you for that clarification and 
addition.
    I just want to be sure, Mr. Chairman, as we go forward with 
this, that the Senate does not engage in the same kind of 
heated, inaccurate rhetoric that will undermine this very 
important, serious endeavor. Therefore, we need to clarify many 
of the points, and that is one of the critical ones that I 
wanted to get on the record, because this is not about whether 
you try terrorists or let them go. We have to be very clear 
about that, going forward.
    Chairman Warner. I thank the Senator from New York for that 
very insightful observation.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    The problem is that these persons, for the most part, that 
we are dealing with, that are most dangerous, are unlawful 
combatants, they're not German soldiers who wore uniforms and 
who served a nation-state. They're unlawful combatants. Many of 
them are obsessively committed to suicidal destruction of 
American lives. At some point, as one of you said, when someone 
declares this war is over, they'll be released. It is 
important, if they are guilty and are actual terrorists who are 
bent upon destruction of American lives or Iraqi lives or 
Afghani lives, that they be detained more than the length of 
this hostility.
    With regard to the military commissions, I think the 
Supreme Court ruling reversed ex parte Quirin. I believe the 
President and the DOD correctly set up commissions under the 
existing law at the time, as has every President before this 
one, and they've changed the law. So, we now have to comply 
with it. I don't think the President, the DOD, or anyone else 
should be condemned for carrying out a system that has been 
consistent with the history of America.
    Let me just ask this, so the American people will know. 
General Black, I can start with you, or if someone else would 
like to answer, that would be fine. These commissions provided 
certain protections and procedures. Would you summarize for us 
what was in place and what protections and procedures were set 
up to try persons for these kind of criminal unlawful-combatant 
acts?
    General Black. Yes, sir. The commissions, as originally 
constituted, as they exist today, provided a great number of 
procedural rights and protections that we would find 
acceptable, to include the right to counsel, the right to be 
present, the right to confrontation of witnesses against you. 
There are discovery rights accorded to the accused in these 
proceedings. There are fundamental rights that are all very 
familiar to us, as Americans, and to the world, in general, as 
just and fair.
    My colleagues here at the table would agree that the 
commissions process that was built is, again, a good place to 
start from, and we can add to that and improve upon it and 
build it into something we can all be very proud of.
    Senator Sessions. Thank you, General Black. I think we need 
to remember that. Now, this was a 5-to-3 Supreme Court 
decision--really 5-to-4, since Chief Justice Roberts had 
already voted to sustain this case. They found that a few areas 
of the commissions were inadequate. Would you just describe for 
us what the Supreme Court said was inadequate about this, I 
think, a fair procedure that had been set up to try persons 
accused of these crimes?
    General Black. Yes, sir. In a nutshell, I believe the Court 
found that the commissions are defective because they violate 
the UCMJ and the Geneva Conventions. To follow on with that, 
they said the executive could go ahead and proceed with 
military commissions, either following the UCMJ model or by 
following a model that's adopted by Congress.
    We can do that and achieve, I think, the goal that the 
Court is getting at, with the underlying basis of Common 
Article 3, with some relatively easy changes, many of which 
have been articulated here already today. Presence of the 
accused throughout the proceeding is a great example. The right 
to view all evidence is another great example. Independent 
defense function and the presiding officials, and the 
independence of the presiding officials, are other examples of 
areas that we can proceed forward on to achieve the----
    Senator Sessions. Why is that--review and see all 
evidence--does that mean that they have to see the machinery, 
perhaps, that did electronic surveillance to obtain data that 
you might have to see in a Federal trial courtroom?
    General Black. No, sir, I don't think so.
    Senator Sessions. I don't think they should.
    General Black. We'll have to formulate those rules very 
carefully. I think we can expand upon what we have right now.
    Senator Sessions. I noticed a couple of gentlemen mentioned 
that we should not have coerced evidence. I've been a 
prosecutor for 15 years, and ``coercion'' is a legal term 
generally applied in the American court system that's awfully 
strong. For example, if someone is approached by a large police 
officer, and he says, ``What are you doing here?'' that's 
considered a coercive inquiry. That's considered to be an 
involuntary confession if the person said, ``I was here to make 
a bomb.'' What if a soldier goes in a house with a gun and 
says, ``Why did you make this bomb?'' and he says, ``Because 
I'm a part of a jihad,'' and now they move to strike it because 
it's coercive? Don't you think we have to be very careful about 
how we do these terms so that what's happening in the 
battlefield is understood to be different than the American 
legal system?
    General Black. Oh, yes, sir, I do. In fact, the DTA 
requires a slightly higher standard than the commissions 
currently use. I believe that's the probative value review of 
any coerced statements. I think we can refine that language and 
get exactly to the goal that you're talking about.
    Senator Sessions. What is exculpatory evidence? Real 
exculpatory evidence needs to be produced, no doubt about it. 
What if his defense is, ``I was taking orders from somebody'' 
that can't be found, and we're supposed to find them--or maybe, 
``I had a bad childhood. I want to bring my abusive father''--
which you could do, perhaps, in the American courtroom. I'm not 
making light of it, but I'm just saying, how you define 
``exculpatory evidence'' is no small matter.
    I would also express my concern that when you go from the 
basic UCMJ, Mr. Chairman--and maybe there are certain 
provisions that you don't change, and you adopt and leave as 
part of the law--we will have adopted, presumably, the case law 
that goes with it, and that case law will have been developed 
for the purpose of trying American soldiers, providing them 
certain protections, that may not be necessarily legitimate to 
provide to those who would destroy the United States.
    We need to be really careful. I think military commissions 
are legitimate. They've been part of our history from the 
beginning. The Supreme Court didn't say to the contrary. Let's 
meet the standards the Supreme Court said, but it's not the 
greatest piece of legislation that this Congress will be 
passing when we do so, in my view.
    Chairman Warner. Thank you, Senator.
    Senator Reed.
    Senator Reed. Thank you very much, Mr. Chairman.
    Thank you, gentlemen, not only for your testimony today, 
but for your service.
    Admiral Hutson, if I may, with the decision by the DOD, 
Secretary England, to affirm that Common Article 3 applies, is 
there any category of detainee today that is not under the 
provisions of Common Article 3?
    Admiral Hutson. No, Senator. My opinion is that Common 
Article 3--common as it is to all the Geneva Conventions, 
applying to all four conventions--is the minimum standard that 
covers everybody. If you're a POW, it's an entirely different 
situation, and there are lots of attributes and rights and 
requirements that are different, but that Common Article 3 
provides a floor for everybody.
    Senator Reed. If there is any disagreement, I would 
encourage the other panelists to just jump in.
    On July 7, 2006, Secretary England said, ``It's my 
understanding that, aside from the military commission 
procedures, existing DOD orders, policies, directives, 
executive orders, and doctrine comply with the standards of 
Common Article 3.'' Is that the common understanding of this 
panel, that all the procedures, except for the commission 
procedures, are consistent?
    Admiral McPherson. Yes, sir. Senator, what Deputy Secretary 
of Defense England asked us to do was, within 3 weeks, review 
all our policies, directives, written orders, and ensure that 
that, in fact, is the case. We're doing that right now.
    Senator Reed. That will be reported not only to the 
Secretary, but to Congress?
    Chairman Warner. We certainly would take judicial notice, 
and we'll see that that material is provided.
    Senator Reed. I think this is a good point to establish 
what we have to do, here in Congress. I commend the chairman 
for this hearing, and this series of hearings. General Black, 
I'm responding, I think, to your response to Senator Sessions--
the choice the President has after Hamdan is to use the full 
panoply of the UCMJ with respect to these trials--all the 
rights, all the procedures--or to come to Congress and get 
authorization for a commission. Is that a fair understanding?
    General Black. I believe that's what the Court said, sir in 
the Hamdan case.
    Senator Reed. Is there any disagreement on that point? [No 
response.]
    I presume, since the administration seems to be reluctant 
to embrace the full panoply of the UCMJ procedures, that we 
have to give them, the administration, the President, or any 
President, the authority to conduct these commissions. Is that 
the correct understanding? [No response.]
    The next issue, I think, is what procedural rules would 
apply? From your testimony, I assume that you are all urging us 
to begin with the UCMJ, as it exists today. Again, any 
disagreement? [No response.]
    Thank you. Then the real question becomes, what are the 
exceptions? I open it up to the panel. There are two ways, at 
least, to do the exceptions. We could sit down and laboriously 
go through every provision of the UCMJ and author legislation 
that would categorize and specify exemptions, or we could give 
the President, subject to appropriate review, and by 
regulation, the opportunity to make exceptions, have a record 
justifying those exceptions, subject to review. Posing those 
two points, perhaps rhetorically, would you like to comment on 
your preferred approach? We can go up and down the line.
    Admiral Hutson?
    Admiral Hutson. Senator, the National Institute of Military 
Justice (NIMJ), which is an organization of which I'm on the 
board, proposed legislation that would, one, authorize 
commissions and would provide the President the authority to 
make those changes that he felt were absolutely necessary, in a 
narrow and specific way, based on military necessity and 
practicality, and then report them to you. That is a reasonable 
way to proceed on the issue. Although in his testimony 
yesterday, Mr. Dell'Orto said that the DOD had already gone 
through the UCMJ, the MCM, and identified the changes that need 
to be made.
    Senator Reed. General Romig, any comments?
    General Romig. Senator, I've thought about this, and I 
don't know if this is feasible, but it strikes me that, if it 
is feasible, you probably ought to put together a working group 
on this committee with people that come from the Services, 
nominated from the Services, under the supervision of a couple 
of the staffers, maybe from each side, so you have a bipartisan 
effort, and then get input from all these different places, get 
input from DOD, and get input from the NIMJ. That way you're 
going to get all kinds of input, you're going to have smart 
young people that the Services nominate to come over and work 
on this. You're going to get a broader perspective than any of 
the other possibilities.
    Senator Reed. Thank you, General.
    General Sandkuhler, let's go down the line on just this 
issue.
    General Sandkulher. Sir, I think the method you choose is 
the one that will produce the best product. The deliberate 
process of going line by line will come up with a great 
product. Doing the reporting process that you're referring to, 
where you--the President is authorized to produce the rules and 
report back, and then the rules are blessed or not blessed, and 
that could produce the right product, as well. The key is a 
deliberate process to make sure we understand all that we are 
doing is appropriate not only for trying the people that we 
hold as terrorists, but also for the UCMJ, as it exists today, 
so we don't inadvertently corrupt our current system.
    Senator Reed. General Rives, then Admiral McPherson, other 
comments?
    General Rives. Senator, I personally favor the idea of 
Congress passing something in title 10 to provide baseline 
standards--in title 10 either as a part of the UCMJ or 
otherwise--to provide baseline standards of the sense of 
Congress on what the minimum standards for military commissions 
ought to be, and then deferring to the President to come up 
with, perhaps, a manual for military commissions or some other 
executive order to work out all the details, just like we have 
the UCMJ and the MCM as an executive order.
    Senator Reed. Admiral McPherson?
    Admiral McPherson. Senator, I think it's not as important 
where you start as where you end up. I think where we start has 
become a polarizing theme. ``Do we start at the UCMJ, or do we 
start with the current rules?'' has caused us to be poles 
apart. I would like to see us utilize every reference we can, 
and pull from each reference to come up with a set of rules 
that are just. That's going to be some things out of the UCMJ, 
some things out of the current rules, and some things out of 
the international law. That's how we come to a conclusion and 
we get to the end. At the end of the day, we'll get to the same 
place. I think we come at it from that direction, rather than 
the polarizing direction.
    Senator Reed. Thank you.
    General Black. I would agree with Admiral McPherson, sir. I 
think that's the right way to go.
    Senator Reed. Thank you.
    Senator Reed. Thank you very much, gentlemen.
    Thank you Mr. Chairman.
    Chairman Warner. Thank you very much.
    We have, in the possession of the committee now, the report 
of the National Institute of Military Justice. I have it here. 
We will include it in today's record.
    Thank you for making reference to it.
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    Chairman Warner. Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman. Thanks, each of 
you, for being here today.
    I guess, initially, we've been trying to figure out, where 
do we start? There have been some who have suggested that we 
could start with Military Order 1 and figure out in what ways 
that it may be deficient from Congress's perspective, and to 
add to that. There's some reluctance in Congress to adopt the 
executive order, Military Order 1. So, others have suggested, 
``We can do it with something that Congress is more comfortable 
with, the UCMJ, and carve out exceptions.'' Obviously, it's all 
about, as many of you have said, where we end up. I'm advised 
that preliminary assessment by staff is that 110 rules for 
court-martial would have to be changed, 73 rules of evidence, 
and 145 to 150 UCMJ articles. I haven't done that count myself. 
I'm just reporting what I've been advised by staff.
    Let me get to the area that concerns me the most, and that 
depending on how we approach this, whether we would be 
unnecessarily hamstringing our ability to get actionable 
intelligence from detainees because of some of the provisions 
of Common Article 3, which the Court applied in this context. 
Of course, what makes this unusual is that al Qaeda detainees 
have been held--at least three Federal courts, the 9/11 
Commission observed, the Schlesinger Commission observed--they 
are not subject to or entitled to the rights of POWs, 
generally. Because they don't wear a uniform, they don't 
observe the laws of war. In fact, we know this enemy is perhaps 
uniquely barbaric in terms of their attacks on innocent 
civilians and others. So, we have Common Article 3 applying to 
some aspects of this, without the full panoply of POW's rights 
under the Geneva Conventions.
    Let me just ask you specifically, in the DTA there is a 
prohibition against cruel, inhumane, or degrading treatment or 
punishment. That's already the law of the land. But in Common 
Article 3 there is a prohibition against humiliating treatment. 
For example, it also includes degrading treatment. There's been 
some allusion, already, to interpretation by European courts as 
to what this may mean. For example, is it degrading treatment 
to put two detainees in the same cell with an unscreened 
toilet? That's what the European Court of Human Rights has 
held. What about close confinement in a cell without access to 
outdoor exercise? The same court has held that that was 
degrading treatment. European courts have also held that a long 
wait on death row for a convicted murderer who is sentenced to 
death was degrading treatment. European courts have said that 
degrading treatment includes conduct that is intended to arouse 
feelings of fear, anguish, and inferiority, possibly to break 
the detainee's moral resistance.
    I hope I've framed my concerns, and I would like to, 
perhaps, start with General Black and go down the row to get 
your reaction to how we can address those problems, without 
impairing our ability to get actionable intelligence, while 
complying with the law.
    General Black. Sir, I think that the Supreme Court has at 
least set the groundwork for us on this in the Hamdan case by 
applying Common Article 3 to our operations. We at least know 
we have a fundamental, again, baseline, to use that term, with 
respect to our operations.
    This has been a subject of discussion in prior questioning, 
and it gets to the heart of the definitions that we apply here. 
That's something that I believe that we'll need the help of 
this Congress on to set the guidelines for our soldiers, 
sailors, airmen, and marines as they go forward. These are 
difficult issues, and I don't have ready answers for you. 
You've already pointed out the disparity with respect to the 
international community's view of degrading treatment. You'll 
find the same disparity in any conversation in any lunchroom in 
America, too, I believe. I think it will fall upon this body, 
ultimately, to help us resolve those issues.
    Senator Cornyn. General Black, you've raised an important 
issue that I know is important to a number of us, and that is 
the ambiguity that's created by some of these terms, and if 
we're going to embrace interpretations of foreign courts, or 
not. What does this tell our interrogators? What does this tell 
our military personnel who are in charge of trying to obtain 
intelligence that can hopefully keep not only American 
civilians safe, but also our troops in the field? To me, it 
seems like a recipe for disaster. Ambiguity is not our friend 
here. I think clarity, if at all possible, certain lines, which 
will allow us to use every legal avenue available to get 
actionable intelligence, is important. I worry about that, and 
I hope you can give me some comfort.
    Admiral, do you have any comforting words in that regard?
    Admiral McPherson. I wish I did, Senator, thank you. We 
need to just exercise extreme care in drafting those 
definitions, and that's part of what the legislation needs to 
do, is give us some framework for those definitions. Words like 
``coercive,'' ``humiliating,'' and ``degrading,'' you can do a 
lot with those words, but we can get it right by carefully 
drafting the definitions to those words.
    Senator Cornyn. Since time is short, let me jump down to 
General Romig. In your opening comments, you mentioned that 
court-martial procedures that apply to servicemembers shouldn't 
apply to terrorists. I believe that's a correct quote. Could 
you just identify for us--and I don't want you to go through 
the hundreds or however many that were identified by staff that 
I mentioned earlier, but can you identify, let's say, three of 
the most prominent protections provided to servicemembers under 
our court-martial procedures that should not apply to 
terrorists?
    General Romig. Yes, sir. I think what I said was that we 
need to look to see what processes and procedures would not 
work well in a military commission because of the unique 
environment. There are a number of them. Article 31 rights, 
upon capture, I think that would be silly to require something 
like that. You capture somebody on the battlefield, you don't 
even know, until they've been interrogated, and once you decide 
that now you have a criminal, perhaps--I would suggest that--
and Article 31, by the way, is a Miranda right, basically, but 
it's broader than that--I would suggest that, once they're 
charged, speedy-trial rules that were mentioned earlier, the 
120 days and all of that, I think that just doesn't work in the 
environment we're talking about. Evidence-handling, chain of 
custody, the requirements that we put on law enforcement just 
won't work in a military environment where people are capturing 
people on the battlefield. They're not going to have all the 
technicalities that we would like in a court of law for a 
criminal case in the United States. Right to counsel upon 
capture, of course not. That doesn't even make sense.
    There are a number of those that don't. I'm not sure the 
number that you quoted. I haven't looked at it. That sounds to 
me fairly high, but I don't know. I don't know whether that 
number of articles are truly ones that would have to be 
revisited. I suspect that there are a number of those that 
would need to be tweaked, perhaps.
    Senator Cornyn. My time is up. Thank you very much.
    Chairman Warner. Thank you very much, Senator.
    Before I proceed to Senator Byrd, I think the importance of 
this hearing is such that I'm going to ask the witnesses to 
remain so that Senators who desire can have a second round. I 
wish those not present to be informed by their staff that that 
opportunity will be made available. I hope the witnesses can 
remain with us.
    Thank you.
    Senator Byrd.
    Senator Byrd. Thank you, Mr. Chairman.
    The Supreme Court forcefully, with both arms, beat back 
this administration's transparently shameless and ill-conceived 
attempt to wrest unto itself power that is properly delegated 
to the legislative branch, the U.S. Congress, this Congress, 
and this committee. The Court held that the President had no--
and I repeat, no legal authority to establish the type of 
military commissions he created to try detainees at Guantanamo 
Bay. The Court found that the President's actions exceeded the 
statutory authority provided by Congress in the UCMJ, and that 
the procedures of the military commissions violated each of the 
four Geneva Conventions. The Supreme Court dramatically and 
forcefully put its foot down, and every American is all the 
better for it.
    As Justice Kennedy wrote in his concurring opinion, ``Trial 
by military commission raises separation-of-powers concerns of 
the highest order.''
    Justice Breyer also put it succinctly, ``The Court's 
conclusion ultimately rests upon a single ground. Congress has 
not issued the executive a blank check.''
    Because we are at war does not mean that we agree to 
jettison our legal rights or rewrite the Constitution. I do not 
believe that we should now rewrite U.S. law to give the 
President the blank check that he has been seeking. 
Incomprehensibly, some argue that we should simply paste the 
military order that established the invalid commissions into 
U.S. law. They forget that our Government is comprised of 
three--not just one, not just two--three separate, but equal, 
branches of government. As Justice Breyer wrote, ``Whereas, 
here no emergency prevents consultation with Congress, judicial 
insistence upon that consultation does not weaken our Nation's 
ability to deal with danger. It strengthens it.''
    Justice Breyer advises that such insistence on consultation 
with Congress, the people's branch strengthens the ability of 
the United States to address adversity through democratic 
means. Justice Breyer reminds us that the Constitution places 
its faith in those democratic means, and so must we.
    Question, to General Romig and Rear Admiral John Hutson. If 
Hamdan rejects the theory that there are inherent presidential 
powers not subject to legislative and judicial checks, what 
does the decision say about claims of inherent presidential 
powers in other areas, such as the program of National Security 
Agency eavesdropping, extraordinary rendition, or holding 
detainees indefinitely in secret prisons overseas?
    General Romig. I'll start, Senator, and I'll then defer to 
the dean, who I'm sure has studied this much more than I have.
    The Hamdan decision is limited to the scope of the facts of 
that particular case, and that it remains to be future cases 
that will determine the issues that you talk about, if they are 
brought and get to the level of the Supreme Court. I think it 
would be a stretch to expand that decision beyond the four 
corners of the facts of that case.
    Senator Byrd. Admiral Hutson?
    Admiral Hutson. Thank you, Senator Byrd.
    It is absolutely true, wise lawyers read Supreme Court 
cases narrowly and conservatively. In that case, the Supreme 
Court said, among other things, that the President did not, in 
his inherent authority or in the authorization to use military 
force that was given to him by Congress in the wake of 
September 11, have the authority in waging this war to create 
commissions himself, to prosecute people found on the 
battlefield. One could speculate, if he can't do that, taking 
people off the battlefield and prosecuting them, then what else 
could he do, or could not do? As my learned colleague said, 
that would only be speculation. We've talked a lot about what 
Hamdan stands for, if Hamdan stands for anything, it stands for 
the proposition that this has, for too long, been a dialogue 
between the executive and the courts, and that it needs to 
become a dialogue between the executive and Congress. I believe 
that Hamdan was not a revolution, it was a return to the normal 
state of affairs.
    Senator Byrd. Would it be possible to circumvent the Hamdan 
decision by simply moving those held at Guantanamo Bay to 
Eastern Europe or elsewhere? How does this decision affect 
those detained by the U.S. in other countries?
    General Romig. I guess I'd need a little more facts on 
that--are these moving them back to their home countries? Are 
they returning to where they originated from, or are we just 
moving them somewhere to warehouse them? I think, given the 
focus of the Court, if that were to happen, we would probably 
have another case back before the Supreme Court, although 
Hamdan only talked about the military commissions. What you're 
talking about, then, Senator, would be the warehousing or 
sometimes called ``renditions,'' of detainees. I don't have a 
solid answer on that, as far as what the Court would do, if it 
came to the Court. I don't know.
    Senator Byrd. My time has expired.
    Chairman Warner. Thank you. Thank you very much, Senator 
Byrd.
    Senator Thune.
    Senator Thune. Thank you, Mr. Chairman.
    I, too, want to thank the panel for their service to the 
country and also for their very expert testimony today and your 
many contributions to a system which has worked remarkably well 
for a really long time. In light of that court decision, we 
will now look to you for direction and guidance as we attempt 
to involve the legislative branch of the Government in this 
discussion, which, as some of you have noted, may be overdue.
    I have a question I'd like to direct to all of you, because 
it seems to me that one of the things we're running into is, 
we're really subjecting modern warfare of the war on terrorism 
to a framework--that being, Common Article 3 of the Geneva 
Convention--that is a very antiquated standard, if you will, to 
warfare, as we know it today, in a war on terrorism. In other 
words, you don't have nation-states, you have a very different 
set of circumstances that we're dealing with. I think one of 
the issues that we all here debate and discuss when we talk 
about combatants, we hear talk about lawful and unlawful 
combatants, and we make a distinction between those two types. 
I guess I'd just ask you a simple question, do you agree with 
designating two classifications of combatants?
    General Black. Yes, sir.
    Admiral McPherson. Yes, sir, I think that's consistent with 
the Geneva Conventions.
    Senator Thune. Do you agree that terrorists should be 
classified as unlawful combatants? [Witnesses indicating yes.]
    Currently, there isn't any Federal statute that 
comprehensively defines that term ``unlawful combatant'' or 
their legal rights. Do you consider it reasonable, as part of 
this process, that Congress clearly define what that term 
means, what ``unlawful combatant'' is? Is that something that 
is a part of our discussion here?
    General Romig. Senator, the law of war defines what a 
``privileged'' or ``lawful combatant'' is, and what isn't. The 
law of war is part of the law of the United States, as far as 
the Conventions, and those that we've ratified. We could 
enhance or embellish, but we certainly couldn't detract from 
what that is.
    Senator Thune. You said you all trained to Common Article 3 
as the standard and the base today, even though that's not 
something that was adopted; in fact, it was rejected by the 
Senate. When you're dealing with an enemy that routinely and 
systematically will kill innocent civilians without remorse or 
conscience, you have a very different type of enemy than we've 
ever faced before. You talk about some of the terms that we use 
here, and clarifying them and their interpretation, and what 
the world community believes. Senator Cornyn has shared some of 
the definitions that have been applied in places like Europe. 
For the commonsense standard that people would apply in a State 
like where I'm from, in South Dakota, when you talk about 
``humiliating'' or ``degrading'' or those types of terms, in 
applying them to terrorists, to people who, as I said, without 
remorse or conscience, will systematically kill innocent human 
beings, those types of terms are not something that people in 
my State would be really concerned that we might be infringing 
on the inferiority, or sense of inferiority, that terrorists 
might have. People across this country, as they listen to this 
debate, are going to apply what is, I think, a very commonsense 
standard.
    I know we have a responsibility to come up with some legal 
definitions here, but I hope that, as this process moves 
forward, that we don't deviate too far from a very successful 
system that has been in place for a very long time, both with 
respect to the UCMJ, the commission structure, as it has been 
applied historically. I'd share and echo some of the concerns 
that have been raised by other members on this committee, that, 
as we contemplate doing this, that we address as much clarity 
as we can.
    My concern, too, is, in doing this, since we set the 
standard for the world, that these types of standards are going 
to be applied by other nations to our military personnel in the 
future. I don't believe that terrorists are going to care what 
we do here, because they don't live by the same set of rules 
and standards. I think it's important that we get it right, but 
that we not deviate too far from where we are today. That's why 
I was encouraged to hear all of you say that we have a good 
starting point, and I hope that we can perhaps refine and 
improve upon it, but certainly not do away with it and move to 
definitions that come out of a world community or other places 
in the world that I don't think ought to be dictating what we 
accomplish and what we use here as a standard in the United 
States.
    I thank you, again, for your testimony, and appreciate the 
opportunity to hear your insights, and, as we go forward, and 
look forward to your guidance and direction in trying to get 
this right.
    Thank you.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator Thune.
    Senator Lieberman.
    Senator Lieberman. Thanks, Mr. Chairman. Thanks to you and 
Senator Levin. Thanks to the members of the panel.
    Mr. Chairman, I got here a little bit late today, so, 
according to the early-bird rule, I've had a while to wait 
until I got to ask my questions. But I must say, it's been an 
extraordinary morning. I've learned a lot, and I've been 
reminded of a lot. One of the things I've been reminded of is 
what an extraordinary and great country we are blessed to live 
in.
    We believe in the rule of law. We make mistakes. As the 
Court said, the administration made--in its decision in the 
Hamdan case--we are a far-from-perfect people, but we hold 
ourselves, ultimately, to our a high standard of law and 
justice. That's exactly what we're doing here today.
    It's all the more remarkable, without belaboring the point, 
when one considers, as we sometimes forget in the back-and-
forth, that we are talking about a war we're involved in here 
against an enemy, radical Islamist terrorism, which is totally 
lawless, holds itself to no standards of accountability. Common 
Article 3 of the Geneva Convention? Forget about it. A brutal 
enemy whose very existence and purpose for being assaults and 
violates the premise of our existence as a Nation. The 
Declaration of Independence says it, right at the beginning, 
``these self-evident truths that we're all created equal, and 
we're endowed by our Creator with the rights to life, liberty, 
and the pursuit of happiness,'' and that the Government, as 
they said in the next paragraph, our Founders, was created to 
secure those rights. Every time we make mistakes, we do come 
back to that standard of those rights and the law that 
guarantees them.
    I thank the witnesses, I thank my colleagues, and I thank 
the chairman and Senator Levin for bringing us through this 
process to remind us of this. I hope the American people see 
this and are proud of what's happening here, that mistakes were 
made, but we should go beyond our defensiveness and 
embarrassment to pride that we're going to make them right. I 
hope the people of the world give us a little credit for that, 
as well, because, after all, the Supreme Court of the United 
States comes along and says, just as the Founders intended it 
to, ``No one is above the law, not even the President in a time 
of war against inhumane people and nonstate actors.'' Quite 
remarkable. We are now proceeding from there.
    I want to emphasize, before I ask a question, I think 
Senator Byrd really hit a very important point, and it was 
validated in the responses some of you gave. The Hamdan case is 
essentially a separation-of-powers case. Very important. It 
makes some references to the rights of detainees, but this is 
basically the Court saying that Congress, because we already 
acted to authorize military commissions using the UCMJ, that 
the President, in that context, simply did not have the 
authority to deviate from those procedures, absent further 
congressional authorization. Although they're probably--and, 
one assumes, would be--some type of procedure the Court would 
find unconstitutional to try enemy detainees, even if 
authorized by Congress, the Court actually did not opine on 
what that would be. That's up to us, working together with the 
administration now to do that.
    I think we've said here that the current system that the 
administration adopted doesn't have enough rights in it. There 
seems to be a consensus on the panel about that, that the UCMJ, 
if I may use the term simplistically, has too many rights. We 
don't want to give terrorists all the rights that our troops 
have when we use the UCMJ to try them. Therefore, we have to 
find our own way, built primarily, I would say, on or starting 
with, the UCMJ and moving from there.
    Here's the first question. Some have argued, as has been 
referred to in other parts of Capitol Hill in the last few 
days, that if military commissions followed the procedures of 
courts-martial, then our military personnel in the battlefield 
would be forced to follow Supreme Court rulings on Miranda 
rights, et cetera, give them their rights before they're 
arrested; interrogations would have to be conducted according 
to all of that. You've debunked that. I believe that's right.
    Let me ask you this kind of question. We're not going to do 
this, but if we adopted the UCMJ requirements regarding enemy 
detainees, would they be required to receive Miranda warnings, 
even under the UCMJ, or--in other words, would we have to make 
changes explicitly in the UCMJ to make clear that enemy 
detainees don't have to receive those warnings?
    Admiral Hutson?
    Admiral Hutson. If I understand your question, Senator, my 
answer would be that what envision is that--as I think one of 
the other witnesses may have described in some respects--the 
UCMJ is the umbrella over which it all hangs. You have courts 
martial for U.S. service people, and you have military 
commissions, and you have other kinds of provost courts and 
courts of inquiry and that sort of thing. The military 
commissions, as the vehicle, would be under the UCMJ, so that 
you wouldn't be changing Article 31 or Article 32, for example.
    Senator Lieberman. Do those require Miranda warnings in the 
case of normal courts-martial?
    Admiral Hutson. Yes, sir. Article 31 is the equivalent of 
Miranda, except that it's broader and it requires the rights be 
afforded at the point of suspicion, not at the point of 
custodial interrogation.
    Senator Lieberman. So, presumably, if we were to use the 
UCMJ as a basis for dealing with enemy detainees, we would want 
to alter that particular provision so they're not required to 
receive Miranda warnings.
    Admiral Hutson. Absolutely.
    Senator Lieberman. Let me ask a final question, briefly, 
which is about Article 32 proceedings, which we've not talked 
about. Generally speaking, I describe them as the UCMJ version 
of grand juries. Again, I know there was some concern expressed 
at Tuesday's Judiciary hearing that Article 32 proceedings are 
generally open to the public. If applied to the detainees in 
Guantanamo, I think the concern is that classified information 
could be jeopardized and can fall into, obviously, the wrong 
hands. Is Article 32 something that we ought to amend if we 
apply the UCMJ to enemy combatants?
    General Sandkulher. Yes, sir. I think you would have to 
look at Article 32, because it's much broader than a grand jury 
setting.
    Senator Lieberman. Right.
    General Sandkulher. There are rights to counsel, there are 
rights to discovery, and there are rights to evidence. Evidence 
is presented in the public setting. You would have to look and 
see if you want to consider using Article 32. You may want to 
say that Article 32 probably shouldn't apply in this kind of 
setting, and remove that from any commission rules. That would 
be an alternative to step around some of those issues.
    Senator Lieberman. Right.
    General Sandkulher. You'd have to determine whether it's 
really necessary in this kind of event where you have a 
terrorist and you've detained, and you have evidence to show 
he's a terrorist. Do you need to do the Article 32, which is a 
product of our system from the early 1950s to make sure minor 
offenses weren't being taken to our most severe level of 
punishment?
    Senator Lieberman. Thank you. My time is up. That's my 
inclination. I appreciate your saying that about Article 32 not 
being necessary to be part of the UCMJ if we apply it to enemy 
combatants.
    Thanks very much for all you do every day to uphold the 
rule of law in our country.
    Chairman Warner. Thank you very much, Senator Lieberman.
    Senator Talent.
    Senator Talent. Thank you, Mr. Chairman.
    I, too, appreciate the service of the members of the panel. 
I have three or four questions.
    To make certain I get them in, let me maybe just ask 
General Romig if you'd comment, and then, when we're done with 
our comments, then anybody else who wants to add something can 
add to it.
    Is it your understanding that the Supreme Court held that 
Geneva Convention applies to all those we have captured, or 
only to those who are subsequently brought before a military 
tribunal, or is there some other understanding that you have of 
the decision?
    General Romig. It doesn't apply to the entire Geneva 
Convention; it only applies to Common Article 3 of the Geneva 
Conventions.
    Senator Talent. Right, Common Article 3.
    General Romig. Yes, it applies to all those that have been 
captured.
    Senator Talent. Captured.
    General Romig. That's my understanding.
    Senator Talent. That's your understanding of the Court's 
decision.
    Now, is it your understanding of Common Article 3 that one 
of the protections it affords captured prisoners is the right 
not to be interrogated, or is it limited to the right to be 
interrogated in a humane fashion?
    General Romig. It doesn't address interrogations directly, 
it only addresses abusive treatment that, quite frankly, is 
what we train our soldiers not to do anyway.
    Senator Talent. Sure. I understand. In your judgment, it 
would not give a captured suspected terrorist the right to say, 
``no, I just prefer that you not ask me any further 
questions,'' and then you have to go away.
    General Romig. No. That's right. It is not like the Geneva 
Conventions for POWs, where all you have to give is name, rank, 
and serial number.
    Senator Talent. Right.
    General Romig. It doesn't give that kind of right, because 
they are not protected.
    Senator Talent. So, our interrogators can say, ``no, I'm 
sorry, we're going to continue asking you these questions.''
    General Romig. Absolutely.
    Senator Talent. ``We have to do it in a humane way, but 
we're going to continue.'' Okay.
    Now, I think you testified--and I was out of the room, but 
staff tells me you testified in response--not you, but the 
panel--to Senator Cornyn, that we're not sure what the 
protections in Common Article 3 may mean as applied to specific 
cases, that, in certain respects, it--because I think he asked, 
``how does that add to what we already did in the DTA?'' and I 
think the panel's view was that, ``we have to work that out in 
particular cases.'' Is that fair, in your judgment?
    General Romig. I think so, yes, Senator.
    Senator Talent. Okay. What are we going to do on the ground 
while we're figuring out what Geneva means? We know the 
Secretary's applied this now to everybody, so what are our 
interrogators doing now while we sit here trying to figure out 
what all this means?
    General Romig. I'm probably not the right person to ask 
now, but I will give you an answer, and then you might want to 
talk to the uniformed individuals.
    Senator Talent. They're going to the staff judge advocate, 
and he's trying to figure it out. Is that it, basically?
    General Romig. No, the answer is, do what they've been 
trained to do, because they've been trained to treat everybody 
as a POW. At that standard, you're never going to violate 
Common Article 3.
    Senator Talent. Okay, well, we hope.
    General Romig. If they meet the standard of their training, 
that's correct.
    Senator Talent. That actually leads to the next question. 
We are talking about what Congress is going to do. Since we're 
applying, here, the terms of an international convention, are 
we certain the Supreme Court will hold that Congress has 
authority over this, or is it possible they may say, ``Look, we 
have the authority to determine what the Convention means, as 
applied to particular instances''? Are we going to be back 
before the Supreme Court if we clarify this, in your judgment?
    General Romig. In my judgment, I doubt it. I don't think 
the Court would do that. I'm sure if you came up with a 
definition, it would certainly pass constitutional scrutiny, or 
Supreme Court scrutiny.
    Senator Talent. I think the thrust of it was that it's a 
statutory interpretation. I think the Court made pretty clear 
that Congress can, if it clarifies, satisfy the Court's 
concerns, which, for me, was the saving grace of it. That's 
your view, also?
    General Romig. Oh, absolutely.
    Senator Talent. Would anybody like to comment on any of 
those points?
    Chairman Warner. Senator, we ought to very carefully get 
responses, because that's a key question.
    Senator Talent. On any of the four questions I asked. If 
you're all in agreement with the General, or if anybody's in 
real disagreement with any of that, maybe you could speak up or 
forever hold your peace?
    Admiral Hutson. I would just clarify General Romig's 
statement with regard to interrogation of POWs to say that the 
requirements with regard to POWs is a burden on the POW that 
they have to give that information. It does not mean that you 
can't continue to ask them questions, too. It's just that, 
that's the baseline requirement, to use that word again--for 
the information that they must give.
    Senator Talent. Okay. Thank you, Mr. Chairman. Thank you, 
General and Admiral and the whole panel. I hope, Mr. Chairman, 
that we can clarify this as quickly as possible, because 
sitting at this dais, these ambiguities don't affect us 
personally on a day-to-day basis, but our interrogators need to 
know. The only thing I disagreed with that you said, General, 
is the idea that, ``as long as they treat people humanely, 
they're not going to''--they may be sitting down there worried 
that somebody's going to jerk their chain for something that 
they really thought was okay, in light of all this ambiguity. I 
know they're trained to do certain things, but I'm concerned 
about getting the intelligence we need. I'm not concerned about 
trying to dance around on the head of a jurisprudential pin. 
I'm trying to get the intelligence we need to win this war. 
This is fascinating for all of us lawyers here, which I guess 
is a lot of us, but I want our guys and gals on the ground to 
get the intelligence.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator.
    We will now turn to you, Senator Chambliss.
    Senator Chambliss. Thank you very much, Mr. Chairman.
    Gentlemen, thank you for your great insight into this 
issue. As a lawyer who never tried a case under the UCMJ, this 
has been fascinating to listen to.
    I know Senator McCain is right, and I told him as we went 
to vote earlier, we have to think about how Americans may be 
treated, down the line, certainly. The fact of the matter is 
that we know how U.S. prisoners are treated today by al Qaeda. 
We've seen that in the last month. It certainly irritates me to 
no end to think that we have to continue to do what's right at 
all times when the enemy that we are fighting is going to be 
cruel and inhumane to American men and women who wear the 
uniform at such time as they might fall into their hands.
    That having been said, we have to deal with this issue in 
the right way. General Romig, you, in response to Senator 
Cornyn and Senator Talent, listed a few items. Like Senator 
Reed, I don't want to rewrite the UCMJ or write this particular 
piece of legislation here today, I like the idea that Admiral 
McPherson discussed relative to picking out the best parts of 
the different laws, regulations, and methods that we have in 
place today, one of which is the international hearsay rule 
that I understand is a little more liberal than our Federal 
rules of evidence and the UCMJ rules, which I guess are about 
the same. Are there any others? General Romig is the only one 
that really addressed this, and I want to give everybody else 
an opportunity to address that issue, too. Are there any other 
issues like that which we should be thinking about, issues that 
jump out at you and say, ``yes, this is something that you 
really ought to look at,'' from the standpoint of modifying 
current UCMJ provisions?
    General Sandkulher. Senator, you would have to look closely 
at the rules of evidence, in general. You would have to look 
closely at--if you want to--the exclusionary rules for what's 
an unlawful search and seizure. Exclusionary rules have a 
purpose in our jurisprudence, in a lot of ways, to prevent 
unlawful activity by police officers. That's why we exclude 
certain evidences taken in violation of your right against an 
unlawful search and seizure. Can we even have that on the 
battlefield? That's within the general rubric of military rules 
of evidence. I think you have to look very closely. That goes 
with the classified information and other security information. 
The names of witnesses. How do we handle providing the names of 
witnesses in the trail of a detainee where that witness may 
have family still remaining in an area of danger? Do you do 
that? Some of the international tribunals have provisions where 
witnesses testify without their real name being exposed. There 
are a variety of those areas that we would look at.
    Senator Chambliss. Good points.
    Does anybody else have anything that kind of jumps out at 
you?
    General Sandkulher. Thank you, sir.
    Admiral Hutson. Chain of custody would be an issue I 
believe.
    Senator Chambliss. I think General Romig alluded to that 
earlier, as well as right to counsel and some of those basic 
things.
    With respect to classified information, I understand that, 
under the UCMJ, the tribunal judge has the right to review 
classified testimony before it's given, he or she can basically 
clear the courtroom, and makes a decision as to what's done 
with it that classified information. Under the UCMJ appellate 
process, there would be a military review, but, under the DTA, 
the DC Circuit Court ultimately would review that particular 
information, if we're talking about following that process. 
Does anybody have an opinion about whether or not that's the 
way to go here, or should we continue to allow the appellate 
process to only follow through the military appeals?
    Admiral Hutson. I'd prefer the military appeal system. It's 
tried and true.
    General Romig. Yes, sir, they're certainly familiar with 
the procedures and all of that. I think either one would work. 
I think it would work more efficiently through the military 
process.
    Senator Chambliss. It's not that I don't have confidence in 
our Federal system, by any means, but it just seems to me that 
the military appellate process would be better to follow.
    Going back to this issue, in the interrogation process, 
title 18 subjects civilian and military personnel to the 
provisions of Common Article 3. I don't know whether I've said 
that correctly but that's the way I understood it. In any 
event, civilian and military personnel are subject to Common 
Article 3 when it comes to interrogation.
    Should we take this opportunity to modify title 18 and 
clarify it?
    General Rives. Senator, it would be helpful if we gave 
better definition to some of the terms that are in Common 
Article 3 and also in--I believe you're referring to title 18 
in, perhaps, the War Crimes Act?
    Senator Chambliss. I said ``article,'' but I meant title 
18. Excuse me.
    General Rives. Section 2441 is the War Crimes Act, and one 
of the real problems I see is it is defined as a war crime when 
we have conduct that violates Common Article 3. It would be 
helpful for Congress to better define those items within Common 
Article 3. For example, ``humiliating and degrading 
treatment,'' to define, in or out, certain items to help the 
interrogators and others understand what the sense of Congress 
is for defining those terms. That would be very helpful.
    Senator Chambliss. Does anyone else have a comment on that? 
[No response.]
    No? Okay.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator Chambliss.
    Senator Roberts.
    Senator Roberts, of course, gentlemen, is chairman of the 
Senate Intelligence Committee on which I am privileged to 
serve, and our leadership have invited that committee to 
participate in this very important oversight and review process 
by the Senate.
    Senator Roberts.
    Senator Roberts. Thank you, Mr. Chairman.
    My questions are repetitive and pretty much the same 
questions asked by Senator McCain, Senator Clinton, Senator 
Graham, Senator Cornyn, Senator Talent, and now Senator 
Chambliss. This comes under the heading of repetitive 
questioning, which one international court said was in 
violation of Common Article 3 and would cause you great 
anguish. Do you feel I am in violation of Common Article 3? Are 
you feeling fear and anguish yet? I don't want to cross any 
boundaries here.
    I just want to say that I think Common Article 3 standards 
for detention and interrogation are incredibly vague. We've 
already said that. What constitutes an ``outrage upon personal 
dignity''? What is, exactly, ``humiliating treatment''? What is 
the precise definition of ``degrading treatment''? By the way, 
if you violate this article, whatever it means, you have 
committed a war crime under U.S. law, which has led to a lot of 
risk aversion.
    The question is, do the Services have a body of experience 
in making specific determinations as to where the line must be 
drawn in deciding whether a particular conduct is prohibited? 
Outrage upon personal dignity, humiliating treatment, or 
degrading treatment. Most of you have indicated that we do have 
that background knowledge and that we can do this. I'm 
extremely concerned that if Congress doesn't act to expressly 
clarify what Common Article 3 means for detention and also our 
interrogation efforts--Senator Graham touched on this--that 
American courts will resort to decisions of the European Court 
of Human Rights or the International Criminal Court to 
determine what is and what isn't ``degrading treatment.''
    Senator Cornyn posed several interesting questions. My 
lawyers tell me that, under those international precedents, 
putting two detainees in the same cell, which Senator Cornyn 
has already indicated, with an unscreened facility, would 
constitute a violation of Common Article 3. What he did not say 
is that there is a definition of how high the screen ought to 
be, and what the conditions ought to be, in regards to having 
something that would be humane or would be--that's not exactly 
the word that I want. But that's what the European Court of 
Human Rights has held. What about the close confinement in a 
cell without immediate access? I'm not talking about leaving a 
cell, marching down a hall, and then going to outdoor exercise. 
I'm talking about immediate access. The same court held that 
that was degrading. They have also said that a long wait on 
death row for a convicted murderer who is sentenced to death 
was also degrading treatment.
    What if a terrorist detainee has continued intelligence 
value, if he has information that could save American lives? 
Would that long wait then constitute degrading treatment under 
Common Article 3?
    The European courts have said that ``degrading treatment'' 
includes conduct that is intended to arose feelings of fear, 
anguish, and inferiority, possibly to break the detainee's 
moral resistance. I would venture to say that the interrogators 
who questioned Khalid Sheikh Mohammed, or the interrogators who 
questioned the high-value targets who led to information of the 
Sheikh, who led to the death of Mr. Zarqawi, could conceivably 
be held accountable under Common Article 3. I don't think 
that's what we want. That's not what you want. That's not what 
we're trying to do.
    That kind of definition certainly gives our service men and 
women very inadequate guidance and certainty in fighting this 
war, especially when the violations of these vague standards 
now constitute a war crime.
    Gentlemen, my experience on the Intelligence Committee, in 
terms of briefing, and my experience on the Armed Services 
Committee, in terms of briefings, indicating that everybody's 
worried about crossing the line. We're not even walking up to 
the line. One of the things that the 9/11 Commission said, one 
of the things that our weapons of mass destruction (WMD) 
inquiry said on the part of the Senate Intelligence Committee, 
one of the things that the WMD Commission said, and every other 
think tank or study group or inquiry that has said, is, we have 
to stay away from risk aversion. Obviously, these terms should 
be defined with certainty, for the sake of our service men and 
women who handle the detainees in the war on terrorism, and 
they should be clearly defined in U.S. law, it seems to me, 
rather than left up to foreign courts and also the prosecutors.
    As I've indicated, many Senators have asked these 
questions. You have responded. I think you agree. I think this 
is so terribly important. If we're told in the Intelligence 
Community that detention and rendition and finding out 
intelligence represents anywhere from 40 to 60 percent, 
depending on the circumstance, of what we do to make America 
more safe, this is, indeed, a very serious question.
    Could you explain how Military Rule of Evidence (MRE) 505 
and the CIPA differ on process? Do you believe that additional 
protections for classified information are required, beyond the 
MRE 505? For example, the right to preclude the defendant from 
being present during the presentation of some evidence or 
additional procedural protection for the use of classified or 
sensitive information? Finally, are there international 
precedents that we can draw on? For example, in the 
International Criminal Tribunal for the former Yugoslavia, or 
the International Tribunal for Rwanda--I think somebody 
mentioned that--as we consider the appropriate standards for 
access to classified information, right to speedy trial, and 
access to proceedings by the defendant?
    Those three deal with classified information. If anybody 
would like to take on one or all three, I would like to hear 
from you.
    General Black. Sir, I'll start with question 1, and MRE 505 
and the comparison with the CIPA. I don't have CIPA in front of 
me, but I believe that I'd be correct in saying that MRE 505 is 
consistent with CIPA in every respect, and provides a procedure 
that we could well adapt to the commissions process, a 
procedure that starts with alternatives for considering the 
evidence that's attempting to be introduced into the trial, and 
then allows for an in-camera process by the judge to perhaps 
redact pieces of the information to make it admissible. It 
ultimately leads to a decision by the trial team as to whether 
to go forward with that particular piece of evidence.
    I think that CIPA and the application in MRE 505 can be 
adapted to the commission's process.
    Senator Roberts. That is certainly good news if that is the 
case and I appreciate your response.
    Anybody else have any comments?
    General Sandkulher. One of your other questions, sir, was 
about the Rwanda and the Yugoslav rules.
    Senator Roberts. Yes.
    General Sandkulher. There are procedures there that we 
could draw on that would be helpful for the handling of 
classified information.
    Senator Roberts. All right. I appreciate it.
    Admiral, you have something to say?
    Admiral McPherson. I would agree with General Black. We 
have a wealth of experience under MRE 505 that's probably being 
used today in a court-martial someplace. The experience is 
there. We would have to change MRE 505 because normally our 
experience is, it applies to evidence that the accused already 
is in possession of, already is aware of. Where, in most of 
these commission cases, it would be classified evidence that 
the Government would want to be using against the detainee.
    Senator Roberts. Exactly.
    Admiral McPherson. It would require some modification, but, 
yes, we have the experience, and we think we could sufficiently 
use it.
    Senator Roberts. All right.
    I thank you, Mr. Chairman.
    Chairman Warner. Thank you very much.
    Gentlemen, Senator Levin and I have further questions, but 
I think it would be appropriate if we took about a 7-minute 
break. We've been in session continuously for 3 hours, and 7 
minutes is well earned. [Laughter.]
    [Recess at 1:00 p.m.]
    [Resumed at 1:07 p.m.]
    Thank you very much, gentlemen. We'll resume now.
    Senator Graham, take your time. You have other commitments, 
but I'm going to remain here. Go right ahead.
    Senator Graham. Thank you, Mr. Chairman. I very much 
appreciate that.
    I appreciate the witnesses trying to enlighten the 
committee about what we need to do about the law. We're trying 
to enlighten ourselves on what to do politically.
    I want to get back to something that Senator Clinton 
brought up. One of the big confusions, gentlemen, that I 
believe has been created since this war began is the idea that 
there's one of two options, as Senator Clinton was trying to 
indicate, that every enemy combatant has to be tried or let go. 
The truth is that every enemy combatant is, per se, not a war 
criminal. Do you all agree with that statement?
    General Black. Yes, sir.
    Senator Graham. An affirmative answer by the panel. As a 
matter of fact, we would not want to create a policy where 
every POW, lawful or unlawful, was per se, a war criminal, 
because that would put our own people at risk.
    Chairman Warner. I'm just wondering, Senator Graham, if we 
could indicate that they seem to all agree with your statement.
    Senator Graham. Yes, I feel like I'm back in a court-
martial. Let the record reflect a positive response from all 
the witnesses. [Laughter.]
    Okay. We have a Combat Status Review Tribunal (CSRT) 
procedure, that Senator Levin and myself and others worked on, 
that deals with determining enemy-combatant status. That is a 
noncriminal procedure that is designed to comply with Article 5 
of the Geneva Conventions, a competent tribunal. Does everyone 
at the panel believe that the CSRT procedures and the 
Administrative Review Board (ARB) procedures, as constituted, 
meet the test of what the Geneva Conventions had in mind in 
determining status?
    General Romig. Yes, sir.
    General Black. Yes, sir.
    Senator Graham. Affirmative response from all the 
witnesses.
    Not only does it meet the test, I'm quite proud of it. 
Because of people like yourselves, it's gotten better over 
time. I would present this challenge to you. If you can think 
of ways to make it better--this is always a work in progress.
    We did something unprecedented in the DTA. Not only did we 
put in a place a CSRT and ARB procedure that would comply with 
Geneva Conventions status determination, competent tribunal 
standards, we also allowed civilian review of those decisions 
for the first time. Do all of you agree that has strengthened 
the procedures?
    General Romig. Absolutely.
    Senator Graham. Affirmative response from all concerned.
    War criminals and enemy combatants are different, so the 
idea that if you don't try them, you have to let them go, is a 
false premise. I'm going to get us back to what this great 
debate's been about today--there seems to be, after Hamdan, one 
or two ways to do this. Do you all agree that the President, if 
he chose to, could, under the Hamdan decision, try these people 
in a full-blown UCMJ setting tomorrow, if he wanted to?
    General Black. Yes, sir.
    Senator Graham. Affirmative response by all members.
    Do you all agree that would be a very bad decision?
    Admiral McPherson. Yes, sir.
    Senator Graham. Affirmative response by all members.
    I would like to say, for the record, I appreciate the 
President not going down that road, because it would create too 
many problems for our country.
    The idea of us politically deciding whether to start with 
Military Order 1 or the UCMJ seems to be form over substance if 
you get to the right place. All of you are nodding your head. 
I'm going to throw a wrinkle into this. I think there's a legal 
reason why we would want to choose starting with the UCMJ and 
build out. My belief is, gentlemen--and please comment if you 
think I'm wrong--that after 1951 things changed when it came to 
military commissions. Military commissions had been instituted 
during World War II and other times in our history by the 
executive branch under his inherent authority as Commander in 
Chief, with very little congressional blessing or oversight. Is 
that a correct statement?
    General Romig. Senator, there were provisions in the 
Articles of War for military commissions.
    Senator Graham. Right. Those provisions authorizing 
military commissions were very nebulous, as best.
    General Romig. Absolutely.
    Senator Graham. After World War II, Congress seems to have 
made a conscious decision, when it enacted the UCMJ, to include 
military commissions within that document. Is that correct?
    Admiral McPherson. Yes.
    Senator Graham. Congress seems to have made a conscious 
decision to make a more robust system around military 
commissions, in terms of procedural rights. Is that correct?
    Affirmative response.
    What I'm trying to get to is that when Congress, after 
1951, decided to put the military commissions within Articles 
18, 21, and 36, whatever the numbers are, and we said military 
commissions, to the extent practical, should follow the UCMJ. 
It seems like we resolved that debate along the lines that any 
military commission should have as its source of being the UCMJ 
model. Do you disagree with that, General Black?
    General Black. Yes, sir, I do. I think that starting with 
the UCMJ as the baseline of trying to modify that would be a 
task of monumental proportions, and that's why I think that 
it's better to throw the UCMJ on the table, along with the 
commissions as we have them today, and along with other models 
that we can derive from out there in the world.
    Senator Graham. Along those lines, I guess my legal 
argument is, isn't there some buy-in here by Congress, by 
referring back to the UCMJ, to the extent practical, military 
commissions should follow the UCMJ model, that we made a 
decision, a conscious decision--it wasn't a statutory 
decision--that we wanted to start from that premise? Does 
anybody like to comment on that concept?
    Admiral?
    Admiral McPherson. One of a couple of points of departure 
with the Hamdan decision, and that's the use of the word 
``uniformity.'' Whenever the Supreme Court, with all respect, 
has delved into the UCMJ, the practitioners of the UCMJ end up 
being surprised by their decisions. This is one of those cases. 
Prior to Hamdan, we had always interpreted, assumed, that 
``uniform'' meant the rules were the same among the Services, 
not that they were the same for the courts-martial, 
commissions, tribunals, those provost courts. Now we're told, 
by Hamdan, that's wrong. ``Uniform'' means that the commission 
rules and the court-martial rules must be the same.
    Senator Levin. Except as not practicable?
    Admiral McPherson. Correct. Yes, sir.
    Senator Graham. Okay. But ``uniformity'' has taken a 
different meaning.
    Admiral McPherson. Under the Supreme Court's decision in 
Hamdan, yes, sir.
    Senator Graham. I would argue that Congress, by giving 
military commissions, as a separate option, to be used in 
trying people, understood there would be differences, so 
``uniformity'' never meant that everything had to be like the 
UCMJ, or why have a military commission option? Congress 
understood there would be differences.
    I think the Court's decision is exactly what you've said, 
that we can't do this in a legal vacuum, that, from the Court's 
analysis of ``uniformity,'' we would be well-advised, as a body 
here, to try to create uniformity now between military 
commissions, the UCMJ, and, to the extent practical, or 
whatever adjustments need to be made, General Black, explain 
why those adjustments are needed, in terms of practicality and 
national defense.
    Admiral Hutson, is that wrong?
    Admiral Hutson. No, I think the Court was saying that 
Congress had not given the President the authority to deviate 
from the UCMJ. Because of that, the commissions that he created 
had to be ``uniform,'' in the sense that Admiral McPherson uses 
that, with courts-martial. What we're suggesting now, you're 
suggesting, is that we can use that as the starting point and 
deviate so far as practical or necessary.
    Senator Graham. All due respect, General Black, I see that 
there is a substantive legal difference between how you 
approach this after Hamdan. I think Hamdan is telling us 
basically that you can deviate from the UCMJ, but you have to 
articulate why. You can be different than the Federal rules of 
evidence. The military rules of evidence are the model. There's 
plenty of differences. You just articulate why. I would argue, 
gentlemen, there is a big difference, after Hamdan, how we do 
this. You get to the same place, but I don't want the Court--I 
think Justice Kennedy is telling us this, that uniformity now--
--
    General Romig?
    General Romig. I agree, sir. There is sometimes a 
misconception that UCMJ equals court-martial, always. Quite 
frankly, the UCMJ is more than the court-martial.
    Senator Graham. Absolutely.
    General Romig. That is the biggest part in there. Military 
commissions are a creature of the UCMJ now. That's, I think, 
what you're saying, that we need to do it under that process.
    Senator Graham. I'm saying, after Hamdan, ``uniformity'' 
has a different meaning. That's all I'm saying. That the 
``uniformity'' we relied upon all the years that I was in the 
JAG business, is now changed. Right or wrong, it's changed.
    General Romig. Right.
    Senator Graham. We'll get to the same place, General Black. 
We're not going to have a UCMJ military commission model 
procedure that undermines our national security. It will be 
challenging, it will be robust, and it will be fair.
    I just wanted to throw that out for the committee to think 
about, that uniformity has changed after this decision; and how 
we start the process, to me, is very important.
    One of the concerns I have after the Hamdan decision is 
that Common Article 3, before Hamdan, had not been applied to 
al Qaeda members. The President, as you said, Admiral Hutson, 
in 2002, said, that we will treat them humanely, but not under 
Common Article 3. Does Common Article 3 go beyond the McCain 
language, in terms of treatment requirements--cruel, inhumane, 
degrading? What do you think, Admiral?
    Admiral Hutson. I think that there are some deviations of 
the words. I think Senator Cornyn pointed out ``humiliating'' 
is in Common Article 3 and not in the DTA. I don't think that 
there is a wits worth of difference. I think that you are 
comfortably within the confines of Common Article 3 with a DTA.
    Chairman Warner. As long as we abide by the McCain 
amendment.
    Admiral Hutson. Absolutely. Yes, sir.
    Senator Graham. I totally agree with you. But there's two 
different scenarios that we're talking about here. This idea 
that a military commission, fairly constructed, would impede 
combat operations, is that a false idea?
    General Black?
    General Black. Sir, I think that, properly constructed, 
it's not going to impede combat operations.
    Senator Graham. Does everyone agree with that? So, all the 
people who are out there ranting and raving about having a 
military commission with some basic due process cripples us in 
the war effort, you're flat wrong. You don't know what you're 
talking about. You're talking politically rather than legally. 
Military operations and prosecuting war crimes are two distinct 
endeavors.
    Now, you're training our troops to follow the Geneva 
Convention standards on POW treatment for every enemy combatant 
that we may come in contact with. Is that correct?
    An affirmative response.
    This is important, Mr. Chairman. From the boots on the 
ground, we don't worry about the differences. We train as if 
they were members of a uniformed service representing a 
sovereign nation. Don't ever change that, because we don't want 
to confuse the troops.
    Once we get these people, then the second layer begins to 
come into being, and that is, what intelligence value do they 
have? That's where the military will have experts come in, or 
the civilian community, the Central Intelligence Agency (CIA), 
and they will now engage in conduct differently than capturing 
them on the battlefield. To me, that is the hardest thing that 
we face as a Nation. Don't ever change what you tell our troops 
to do. McCain language, Common Article 3. You just keep 
teaching the Geneva Conventions, and they'll be okay. But I now 
am worried about the military intelligence officer, the CIA 
operative in unknown places throughout the world. Let's come up 
with a system that puts them on notice of what's inbounds and 
what's not.
    Last year, Senator Levin and I allowed an intelligence 
operative, or CIA official, to raise as a defense if they're 
ever prosecuted under title 18 for violations of human rights 
or the law of armed conflict, ``I was following orders.'' We 
used the UCMJ standard--not the Nuremberg standard, but a 
standard available to all military members. If you raise, as a 
defense in your court-martial, ``The Lieutenant told me. I'm 
the Corporal,'' the corporal is immune from prosecution only if 
a reasonably ordinary person in like circumstances would have 
believed the order to be lawful. Do you think that would be a 
fair thing to do for our CIA folks and our military 
intelligence officers when they try to implement 
interrogations? Think about that. Admiral Hutson, what do you 
think?
    Admiral Hutson. My initial reaction, and I haven't thought 
this through because I haven't thought about it----
    Senator Graham. This one's kept me up at night.
    Admiral Hutson.--is that the standards ought to be the 
same. The people at that stage of the game, as important as 
their business is, are in a significantly different position 
than the boots on the ground are on the battlefield.
    Senator Graham. We're moving from now fighting a war to 
gaining intelligence against a terrorist enemy to thinking 
about prosecuting. We're beginning to move.
    Admiral Hutson. Right.
    Senator Graham. How do we make that movement?
    General Rives, while he's thinking about it?
    General Rives. Senator, I have no problem with the 
Intelligence Community gathering intelligence effectively. 
Speaking to a lot of folks in the Intelligence Community, and 
having read a fair amount about it, I don't believe they need 
to cross the lines in violations of the DTA or Common Article 3 
to effectively gather intelligence. Sometimes we will gather 
intelligence, knowing that we're not going to be able to use 
that evidence against an individual in a criminal court. That's 
okay. Sometimes you can't have your cake and eat it, too.
    Senator Graham. Would you agree that some of the techniques 
we have authorized clearly violate Common Article 3?
    General Rives. Some of the techniques that have been 
authorized and used in the past have violated Common Article 3.
    Senator Graham. Does everyone agree with that statement?
    Affirmative response by all concerned.
    Now, those of us in elected office, as well as this panel, 
need to find a way to be fair to those people who have been 
following orders that were clearly not outrageous, in terms of 
the way they were delivered.
    I just want to end it, Mr. Chairman, that I think we can 
construct a military commission using the UCMJ as our model 
that we all can be proud of. We can do it quickly. Well, not 
quickly. If we can do it, we'd have a great product that will 
be fair to the accused and allow us to defend the Nation and 
the world will say is fair.
    I do need your help. We desperately need your help to find 
out how Common Article 3 and title 18 can work together, in the 
past and in the future, because the troops on the ground know 
what to do. Keep telling them what to do, ``treat them all as 
POWs and you'll never go wrong.'' But once you get that high-
value detainee in an interrogation environment, we need to 
think long and hard about how to conduct those interrogations 
and putting our people on notice what these terms mean. To me, 
that's the hardest thing that lies ahead for us as a Nation.
    Any comments? Admiral Hutson?
    Admiral Hutson. I think there are times in which, as a 
Nation, as interrogators, we're not going to be able to do what 
you might want to do in order to get information because we 
have these rules. We can't say that because this is our war, 
and as awful as the terrorists are, that we're going to throw 
the rules over the side in order to get information, because we 
have to remain true to ourselves, remain true to our 
traditions, and look forward, not only to the next war, but to 
the peace, and be careful to ensure that our troops, who are 
more forward-deployed than all other troops combined, by any 
definition of ``forward deployment,'' who are, therefore, in 
harm's way, when they're the interrogatees, rather than the 
interrogators, we have a leg to stand on.
    Senator Graham. The reason I bring this uncomfortable topic 
up, is that we do have to make that conscious decision, because 
those of us who will advocate that decision are going to be 
accused of caring more about the terrorists than we do our 
national defense. I think all of us here in this hearing today 
care equally about our national defense, and we've come on the 
side of the best way to protect the Nation is to adhere to the 
values that made the Nation strong. The best way to take care 
of the troops is to make sure you don't engage in conduct that 
could come back to haunt you.
    I appreciate your testimony and look forward to working 
with you, as how we work all this out.
    Thank you.
    Chairman Warner. Thank you very much. Senator, before you 
leave, you and I both, having been members of the bar and so 
forth, always think of that famous Scales of Justice. There's a 
real challenge before Congress now to make sure that Scales of 
Justice remains in balance, and, at the same time, that our 
forces can protect this Nation. It seems to me, if we let it 
go, Federal courts will have us right back up here.
    Senator Graham. Well said, Mr. Chairman. If I had all of 
the answers, I would write a book and sell it. But I don't. I 
just do appreciate you and Senator Levin having this hearing, 
because this is probably the most important thing we will do in 
the war on terrorism for years to come. It will survive the 
next President and the next President after that. We have a 
chance to start over again. We should welcome the opportunity 
to start over. We should not be fearful of coming up with a new 
system. We should embrace it. We should look to every source of 
law we can, General Black, to get it right. I think we would be 
well-served starting with what we know works--and it has been 
in place for a long time--the UCMJ.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator.
    Senator Levin. Mr. Chairman, I'm wondering, while Senator 
Graham is here, if I could just add one other thing. In 
addition to the things which both of you have said, it could 
also help to restore our credibility as a nation of laws and a 
nation that follows and believes in practicing human rights, 
not just talking about human rights, because of the importance 
that we be perceived this way if we're going to win the war on 
terrorism. With all the people whose help around the world we 
need, and whose assistance we need, and whose information we 
need, we need them to believe, basically, in us, as well as our 
cause in fighting terrorism. This is an opportunity, as you, 
Mr. Chairman, Senator Graham, and others have said, to build 
back that kind of confidence in us, and that perception of us 
as a nation of believers in human rights and practicers of 
human rights.
    Senator Graham. If I may, and I promise I'll shutup. You 
keep bringing up emotions within me that I think are important. 
To our House colleagues, no one on this panel, no one in this 
committee hearing--wants to come up with a procedure to weaken 
our Nation. No one here wants to come up with a procedure to 
let the terrorists go, to compromise national security. That's 
not what this discussion is about. We want to come up with a 
procedure to strengthen our Nation, make us stronger, not 
weaker.
    My goal, simply put, Mr. Chairman and Senator Levin, is to 
produce a product that is a collaborative effort between the 
executive and legislative branch that the courts will review 
and say is fair. Then we can go to the world and say, ``All 
three branches of Government view the way we treat detainees, 
interrogate them, and try them, as one. America, when it comes 
to the war on terrorism, in terms of legal infrastructure, is 
one.'' That would do enormous benefit in protecting our troops 
in the future and restoring our image that has been damaged.
    Chairman Warner. I share in that. When I started this 
hearing, I said that the eyes of the world are upon us, and I 
meant it. It's the most serious thing that we're going to do.
    Senator Levin. Mr. Chairman?
    Chairman Warner. Yes?
    Senator Levin. I didn't mean to interrupt you, but I wanted 
to catch Senator Graham before he left, because he's raised, 
and others have raised, a question which may be addressed in 
section 1404 of our DTA. That has to do with the fear that 
people might be prosecuted--our troops or intelligence 
officers, either one--based on various interpretations of 
Common Article 3 of the Geneva Conventions. Section 1404 of the 
DTA establishes the Corporal's Defense not just for troops, but 
for anybody, as I read it--anybody, any officer, employee, 
member of the Armed Forces, or other agent of the United States 
Government who is a United States person arising out of that 
person's engaging in operational practices. So, we do have that 
Corporal's Defense applied not just to our uniformed folks, in 
the law that you've drafted, that we all worked on, but for 
every agent/employee. If that is true, it is beyond Guantanamo, 
it is anywhere in the world, if the way I read that is 
accurate.
    Senator Graham. Yes, I think, from just a cursory review, 
that that solves the problem. It's a problem that needs to be 
solved.
    Senator Levin. I agree with that.
    Senator Graham. If there's a better way to solve it, I'm 
openminded to it.
    Senator Levin. Thank you.
    Senator Graham. Thank you.
    Chairman Warner. Senator Levin, I now turn to you, and then 
I'll do the wrap-up.
    Senator Levin. Mr. Chairman, the committee has received a 
letter from five retired senior military officers recommending 
that Congress adopt a system based on the UCMJ Manuals for 
Court-Martial, acknowledging that there may be a need for 
narrowly targeted amendments to enhance the already strong 
protections of classified evidence in the UCMJ to accommodate 
specific difficulties in gathering evidence during a time of 
war and other narrowly tailored exceptions. I would ask that a 
copy of this letter from our five retired officers, including, 
I see here, Admiral Hutson, who's with us today, but there are 
four others who are not, that this letter be made part of the 
record.
    Chairman Warner. Without objection.
    [The information referred to follows:]
      
    
    
      
    
    
      
    
    
      
    Senator Levin. One of the things that this letter says is 
something which all of our witnesses here today have 
emphasized, that from bootcamp to officer schools, every 
sailor, soldier, airman, and marine learns that the rules of 
humane treatment embodied in Common Article 3 of the Geneva 
Conventions are part of the core ethic of our Armed Forces and 
the highest law of our land. While questions can be raised 
about ``how do you define this, or how do you define that?'' in 
Common Article 3--and they're legitimate questions--there can 
be no doubt. Although the rest of you didn't sign this letter, 
from what you've said here today, I believe that you would all 
agree that from bootcamp to officer schools, every sailor, 
soldier, airman, and marine learns that those rules are part of 
the core ethic of our Armed Forces. Is that a fair statement, 
Generals? Admirals?
    Chairman Warner. Let the record reflect that each of them 
assented to your question.
    Senator Levin. Thank you.
    Admiral, when you responded to Senator Reed's question 
about whether or not one possible approach here would be to 
have the President make recommendations of specifics, and that 
perhaps we adopt more general rules, and then, after those 
general rules were adopted, the fleshing out into more 
specifics could be done by the executive branch, as one 
possibility. If that possibility were pursued, would you 
personally recommend that the specifics, particularly where 
there's deviations from the law that applies in UCMJ--be sent 
to Congress for our yea or nay?
    Admiral Hutson. Yes, sir, I think I would. As I said 
earlier with regard to the Hamdan decision, it stands, among 
other things, for the proposition that this needs to be a 
dialogue between the executive and Congress, and that Congress 
should be right smack in the middle of it. This should be your 
creature. I think Congress should approve all the narrow, 
specific, well-articulated deviations that the President 
considers to be necessary, and pass on that, yea or nay. How 
you do that, specifically, the mechanics by which that is done? 
There are a variety of different ways to do that. I think that 
Congress has to be involved in it. Among other reasons, it 
clearly satisfies, then, the Court's need for congressional 
authorization for whatever it is you do.
    Senator Levin. General Romig, do you have a comment on 
that?
    General Romig. Sir, I agree. That's why I made the comment 
about Congress perhaps taking the lead, doing a working group, 
headed here in Congress, that brings in all the experts and 
gets input from DOD and gets inputs from those outside, and 
then the onus is on Congress to come up with this product, but 
to draw upon all the resources that are out there. That's why I 
suggested that. There are a number of different ways of doing 
it, but I think, ultimately, it has to go through Congress.
    Senator Levin. Any of our other witnesses want to comment 
on that question?
    General Sandkulher. Senator, we could follow a procedure 
that's similar to what we do today, in that when we have 
statutory construction changes, statutory changes, we, of 
course, have to come to Congress and change the UCMJ. But then, 
the rules and the procedures for the Manual for Courts-Martial, 
the Rules of Evidence, et cetera, are done through executive 
order. That's basically a model that we all are familiar with 
dealing with.
    Senator Levin. There has been a lot stated about ambiguity 
of Common Article 3. I think all of you have commented on it. 
Common Article 3 talks about outrages upon personal dignity; in 
particular, humiliating and degrading treatment. Humiliating 
and degrading treatment. Last year's DTA actually had the 
following language, that no individual in the custody or under 
the physical control of the U.S. Government, regardless of 
nationality or physical location, shall be subject to cruel, 
inhumane, or degrading treatment or punishment. So, Common 
Article 3 of the Geneva Conventions says ``humiliating and 
degrading treatment'' is not allowed. Our own statutory law, 
which applies to everyone, everywhere--CIA as well as DOD, 
everybody in our custody--uses the words that ``nobody shall be 
subject to degrading or inhuman treatment.'' I don't see that 
one is more ambiguous, frankly, than the other. They both have 
to be filled in by either rule or practice, seems to me, 
whether it's under our law, called ``degrading or inhumane,'' 
or under Common Article 3 of the Geneva Conventions, called 
``humiliating and degrading.'' Am I wrong on this?
    I understand the argument about words not having specific 
meaning. You have to fill them in either with some kind of a 
regulation or with practice, but is there any difference in 
terms of the level of ambiguity between our law, which we just 
adopted, which prohibits ``degrading and inhumane treatment,'' 
from the Common Article 3 of the Geneva Conventions, which 
prohibits ``humiliating and degrading treatment''? Is there any 
difference in terms of the level of ambiguity?
    Admiral Hutson. Senator, it's like ``cruel and unusual 
punishment,'' it's just one of those things. In fact, Common 
Article 3 has been on the books longer than the DTA has in 
terms of having created a body of law. We need to follow the 
definitions given to us by international courts, particularly. 
They may be instructive, but they're certainly not directive. 
That's just the nature.
    Senator Levin. But my question is in terms of degree of 
ambiguity, is there greater ambiguity in the words used in 
Common Article 3, than there are in our own law, in any of your 
views? I'll just look at all of you.
    I'll take that as you don't--none of you see any 
difference. I don't. But, anyway, I'll assume, from your 
headshakes and nods and silence that I'm not misinterpreting 
anything.
    General Rives. Senator, from my perspective, part of the 
problem is that Common Article 3 has been on the books more 
than 50 years now, almost 60 years, as an international treaty, 
and as a number of your colleagues pointed out, there have been 
some examples that don't play very well in Peoria. As people 
say, ``this amounts to degrading treatment,'' and it shocks the 
conscience, frankly, of American citizens to say, ``why would 
that potentially amount to a war crime under title 18?''
    Senator Levin. I would agree with them. But what about our 
word ``degrading''?
    General Rives. Our word, we can define without having to 
worry about the international community, and to a degree, we 
have Justice Stewart's definition of ``pornography'': ``I can't 
define it, but I know it when I see it.''
    Chairman Warner. You know it when you see it.
    General Rives. Yes, sir.
    Chairman Warner. I knew him very well, Potter Stewart.
    Obiter dictum.
    Senator Levin. I accept what you say about there's been 
some interpretations we don't buy, but, in terms of the level 
of ambiguity in the word themselves is there any greater level 
of ambiguity in the word ``degrading,'' when it's used in our 
statute than the word ``degrading'' when it's used in Common 
Article 3?
    We don't buy other people's interpretation of the word, 
but, in terms of the level of ambiguity, there is no greater 
level.
    Okay. When our procedures have been perceived by much of 
the world as falling short of treating people the way we want 
our people to be treated, does that, would you agree, hurt us, 
in terms of gaining support for our war on terrorism?
    General Romig?
    General Romig. Absolutely. We have always taken the high 
ground on legal issues like this; and, to the extent that 
somebody perceives us not doing that, I think it's diminished 
us some.
    Senator Levin. Does it hurt us in carrying on a war against 
terrorists effectively if people perceive us as falling short 
of humane treatment?
    General Romig. I think it does. As you pointed out, or 
somebody pointed out, that in order to get support from other 
countries, not only do they need to feel like the effort is the 
right effort, but the reason behind it, and the people that are 
engaged in it, are doing the right thing. If we have people 
perceiving, in other countries, that we're not adhering to the 
rule of law, there is not going to be a lot of support, among 
the populace, at least, in that country.
    Senator Levin. That was my last question. Does anyone else 
want to add to that answer? [No response.]
    Thank you.
    Thank you all, again, for your service, as well as your 
testimony.
    Chairman Warner. Thank you, Senator Levin. I appreciate it.
    Gentlemen, I'm going to read this question, because I want 
those studying the record to note--this committee will come 
back and study it, but I just want to put in the record and 
read it in. Senator Graham touched on it.
    Should Congress attempt to build a system of permanent 
authority for law-of-war military commissions generally or 
concentrate on fixing the immediate problems in Guantanamo?
    Senator Specter recently introduced S. 3614, a 
comprehensive bill which would not only authorize and regulate 
military commissions, but would also provide a statutory basis 
for the combat status review tribunals and administrative 
review boards that review the status and continued detention of 
all Guantanamo detainees, whether suspected of war crimes or 
not. Should Congress address these matters in legislation now 
or limit itself to the points raised by the Court in Hamdan?
    We will address that as we go along. I just wanted to put 
that in the record.
    Lastly, on Protocol I, it's been asserted that the 1977 
additional Protocol I to the Geneva Conventions, which the U.S. 
refused to ratify, has, over time, become a customary 
international law. Do you think that to be true, Admiral 
Hutson?
    If you want to take it for the record, do so.
    Admiral Hutson. Yes, let me take it for the record. I need 
to take that for the record.
    Chairman Warner. Well, it's a tough one.
    Admiral Hutson. I need to think it through.
    Chairman Warner. It's a tough one. I think I'll let all of 
you take that one for the record, then.
    [The information referred to follows:]

    Congress's efforts should provide permanent and lasting executive 
authority for conducting military commissions. There is a need for such 
authority due to the current armed conflict, and there will be a 
similar need in all future conflicts. The United States has not 
officially recognized the 1977 Protocol I in its entirety as customary 
international law. Also, it has not drawn bright-line distinctions 
about which portions of Protocol I have achieved that status. Rather, 
it has noted that there are varying degrees of international acceptance 
and observance for various provisions. The United States has elected to 
support some portions of Protocol I purely as a matter of policy. For 
example, the United States has traditionally supported the principle 
that medical units should be respected and protected at all times and 
not be the object of attacks or reprisals. Similarly, it has supported 
the principle against refusing quarter--that is, no order shall issue 
that there will be no survivors, that an adversary be threatened with 
such an order, or that hostilities be conducted on that basis.

    Chairman Warner. I close by the very difficult question 
which we're going to have to deal with, the classified 
information. Substantial attention has been given to the 
question of classified information and its use as evidence in 
the commissions. In your opinion, can we, Congress, devise a 
statute that passes constitutional statutory muster without 
giving the accused and counsel possessing the necessary 
clearances access to such material in some form? Again, take 
that one for the record.
    [The information referred to follows:]

    Yes, Congress can devise a statute that strikes a balance between 
the rights of an accused before military commissions and national 
security concerns over the disclosure of classified information. Such a 
statute might resemble the existing Military Rule of Evidence (MRE) 505 
that is used in courts-martial. The MRE 505 process deals specifically 
with access to classified information and how that classified 
information can be placed in a public forum. With modifications, this 
process could strike the correct balance.

    Chairman Warner. There's a lot of sensitivity in that, and 
it's one we have to deal with.
    So, I let you answer those for the record, because I think 
they need careful reflection.
    I want to thank Senator Levin and you and other members of 
the committee. I think our committee, if I may say, has 
conducted this very important hearing with a matter of calmness 
and thoroughness and fairness, basically unemotional approach 
to a very tough subject. This subject deserves no less as we 
try, as a Congress, to fulfill our duties. Most importantly, as 
I opened, the end game is the man and the woman beyond our 
shores who are trying to preserve our democracy and freedom. At 
the same time, we want to stand as a nation in the eyes of the 
world with one that accords the proper balance to human 
dignity, human rights, and legal rights.
    So, thank you very much. I think you'll think back on this 
day as a very important one in your respective careers. I'm 
certain that those within your command look upon their senior 
partners as having discharged their function with great dignity 
in keeping with the finest traditions of our U.S. military.
    Thank you. We are adjourned.
    [Questions for the record with answers supplied follow:]
               Questions Submitted by Senator John McCain
                            common article 3
    1. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, the Supreme Court found that Geneva Common 
Article 3, which bars cruel and humiliating treatment, including 
outrages upon personal dignity, applies to al Qaeda. In response, some 
have argued that the terms included in Common Article 3 are vague and 
undefined in law of war doctrine. In Tuesday's Judiciary Committee 
hearing, for example, the head of Justice's Office of Legal Counsel 
said that some of the terms are ``inherently vague.'' Is this your 
understanding?
    General Black. Though not precisely defined, the terms of Common 
Article 3 are sufficiently clear for soldiers to continue to apply them 
on the modern battlefield.
    The proscription of Common Article 3 on ``humiliating and degrading 
treatment'' and ``outrages upon personal dignity'' is not specifically 
defined in the Geneva Conventions. In fact, the commentary observes 
that the framers of the Conventions affirmatively decided not to define 
the term because ``However much care were taken in establishing a list 
of all the various forms of infliction, one would never be able to 
catch up with the imagination of future torturers who wished to satisfy 
their bestial instincts; and the more specific and complete a list 
tries to be, the more restrictive it becomes.''
    This is true of numerous legal terms commonly used in our own legal 
system and in the military justice system. Article 93 of the Uniform 
Code of Military Justice (UCMJ), for example, prohibits cruelty and 
maltreatment. The definition given in the UCMJ is less than one 
paragraph long and is meant to be exemplary, rather than exclusive. 
Yet, we have successfully prosecuted soldiers for cruelty and 
maltreatment of their subordinates.
    The United States Army has been applying the standards of Common 
Article 3 as a baseline for treatment of all individuals in all armed 
conflicts for several decades. Recently, Congress, in section 1003 of 
the Detainee Treatment Act (DTA) has provided greater clarity by tying 
the meaning of ``humiliating and degrading treatment'' and ``outrages 
upon personal dignity'' to a Constitutional standard that soldiers have 
grown up with in our own American system and that they can understand 
and apply.
    While the wording of Common Article 3 may not be completely clear, 
the standard of humane treatment is a standard that can be trained by 
commanders and noncommissioned officers and that soldiers can continue 
to apply on the battlefield.
    Admiral McPherson. This text has been binding on the United States 
since it became a party to the 1949 Geneva Conventions in 1956. Our 
Armed Forces have had 50 years of practice in implementing Common 
Article 31 which stands for minimum mandatory rules for humane 
treatment. Army Regulation 190-8 (which is a joint service regulation, 
applicable to all the Services) provides practical guidance for those 
in the field on the meaning and effect of Common Article 3.
    General Rives. Common Article 3 defines the minimum humanitarian 
norms applicable in ``armed conflicts not of an international 
character.'' Under section 1, the following acts are prohibited:

          (a) violence to life and person, in particular murder of all 
        kinds, mutilation, cruel treatment, and torture;
          (b) taking of hostages;
          (c) outrages upon personal dignity, in particular humiliating 
        and degrading treatment;
          (d) the passing of sentences and the carrying out of 
        executions without previous judgment pronounced by a regularly 
        constituted court, affording all the judicial guarantees which 
        are recognized as indispensable by civilized peoples.

    Most of these are self-explanatory. In any statute or treaty, there 
are terms that must be interpreted by practitioners and ultimately are 
left to the courts to define and thus provide reasonable parameters on 
conduct.
    The issue with Common Article 3 comes as a result of 18 U.S.C. 
2441, which contains the war crimes provisions. Under section 
2441(c)(3), behavior that violates Common Article 3 is a war crime. In 
that light, clearer definition of the meaning of terms such as 
``outrages upon personal dignity, in particular humiliating and 
degrading treatment'' would provide useful guidance to the members of 
the Armed Forces and ultimately to the courts who are required to 
interpret the provision in the context of a criminal trial. Clarity 
could be provided by either limiting the behavior to ``serious'' or 
``outrageous'' violations or a list of specific offenses that would 
define the terms.
    General Sandkuhler. Common Article 3, as part of the full body of 
the Geneva Conventions, has been binding on the United States ever 
since it became a party to the 1949 Geneva Conventions in 1956. Common 
Article 3 sets forth minimum mandatory rules for humane treatment that 
must be followed in armed conflicts not of an international character. 
But the Department of Defense (DOD) policy is to apply the Law of War 
in all armed conflicts, regardless of how characterized, and in all 
other military operations. As is the case with any legal document, 
portions of the text of Common Article 3 are subject to interpretation. 
A reasonable person standard should be the backdrop against which the 
text is read.
    General Romig. No. U.S. military personnel are trained to the 
standards of Field Manual (FM) 34-52, the interrogation field manual. 
These standards exceed the requirements of Common Article 3. As long as 
they adhere to those standards, there should be no concern about 
vagueness under Common Article 3. The standards in FM 34-52 have never 
been challenged by the international community for being violative of 
Common Article 3.
    Admiral Hutson. The meaning of many legal terms are susceptible of 
debate. ``Obscenity'' is perhaps the classic example, but ``probable 
cause,'' ``reasonable doubt,'' ``reasonable man,'' and a host of other 
terms could be faulted for being ``inherently vague.'' Indeed, I would 
submit that by that test, ``inherently vague'' is inherently vague. 
Fortunately, common usage and common sense serve to define them, albeit 
perhaps not to a ``moral certainty.''

    2. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, is there a body of opinion that defines Common 
Article 3?
    General Black. There are numerous sources which attempt to provide 
clarity to the standard set out in Common Article 3.
    As mentioned in the answer to question 1, there is no precise 
definition for some of the terms in Common Article 3 of the Geneva 
Conventions. However, Congress has provided a definition of torture in 
18 U.S.C. 2440 and a definition of cruel, inhuman, or degrading 
treatment of punishment in the DTA.
    In addition, many governments, organizations, and commentators 
throughout the world have sought to add clarity to the term. Others 
such as the International Criminal Court, International Criminal 
Tribunals for the Former Yugoslavia and for Rwanda, International 
Criminal Court, International Committee of the Red Cross, and numerous 
scholars both from the U.S. and from other countries have also provided 
their insight into what the terms of Common Article 3 mean.
    Admiral McPherson. In the case of Prosecutor v. Dusko Tadic at the 
International Criminal Tribunal for the Former Yugoslavia (ICTY), the 
ICTY, while not defining every aspect of Common Article 3, made it 
clear that international law imposes criminal liability for serious 
violations of Common Article 3, as supplemented by other general 
principles and rules on the protection of victims of internal armed 
conflict, and for breaching certain fundamental principles and rules 
regarding means and methods of warfare.
    General Rives. International law is a realm of law agreed on by 
universal, or near-universal practice. International law, as long ago 
defined by U.S. courts and accepted by Congress, comes primarily from 
several sources, including international conventions and treaties; 
customs and practices observed and accepted by states; and general 
principles of international law recognized by civilized nations.
    Where there are disputes about the exact meaning and application of 
national laws, it is the responsibility of the courts to decide what 
the law means. In international law as a whole, there are no courts 
which have the authority to do this and thus it is generally the 
responsibility of states to interpret the law for themselves. 
Unsurprisingly, this means that there is rarely agreement in cases of 
dispute.
    It is a basic rule of sovereignty that the United States would not 
be bound by the decision of a foreign or international tribunal that a 
certain act constituted a violation of Common Article 3. 
Interpretations provided by other state parties or courts are not 
binding on U.S. practice or domestic interpretations. As in other 
cases, how other state parties and courts have addressed an issue can 
be helpful in framing issues and identifying concerns, but those 
decisions or writings are not considered binding precedent that must be 
followed by the United States. If universal agreement develops among 
states that a specific conduct or act violates Common Article 3, then 
the United States is bound to abstain from that act.
    General Sandkuhler. There is not, to my knowledge, a body of 
opinion which clearly defines Common Article 3.
    General Romig. No, there is no universally recognized definitive 
all-encompassing listing of Common Article 3 offenses. This is like so 
many other areas of the law where precise definitions are not provided 
for very good reasons. The drafters of the laws realized that they 
could not conceive of every possible act that would run afoul of the 
intent of the law. Examples in the UCMJ of offenses that do not provide 
precise definitions include: violations of ``good order and 
discipline''; violations of a ``nature to bring discredit upon the 
Armed Forces''; and ``conduct unbecoming an officer''; to name just a 
few. It is always dangerous to try to go into too much detail with 
offenses that encompass a broad statement of intent such as these. As 
one of the drafters of the Geneva Conventions and later the leading 
commentator, Pictet, said regarding Common Article 3: ``However great 
the care taken in drawing up a list of all the various forms of 
infliction, it would never be possible to catch up with the imagination 
of future torturers who wished to satisfy their bestial instincts; and 
the more specific and complete a list tries to be, the more restrictive 
it becomes. The form of wording adopted is flexible, and at the same 
time precise.'' We must never lose sight of the fact that we are also 
looking to protect our own servicemembers from such imaginative 
torturers.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    3. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, what interpretation of Common Article 3 
concerns the administration?
    General Black. Questions concerning interpretations by the 
administration are more appropriate for response by the General 
Counsel, DOD.
    Admiral McPherson. Concerns have been expressed over the 
interpretation that Common Article 3 applies to members of al Qaeda 
since they are neither combatants of a nation-state party to the Geneva 
Conventions nor engaged in solely in an internal armed conflict.
    General Rives. Common Article 3 defines the minimum humanitarian 
norms applicable in ``armed conflicts not of an international 
character.'' Under section 1, the following acts are prohibited:

          (a) violence to life and person, in particular murder of all 
        kinds, mutilation, cruel treatment and torture;
          (b) taking of hostages;
          (c) outrages upon personal dignity, in particular humiliating 
        and degrading treatment;
          (d) the passing of sentences and the carrying out of 
        executions without previous judgment pronounced by a regularly 
        constituted court, affording all the judicial guarantees which 
        are recognized as indispensable by civilized peoples.

    Most of these are self-explanatory. In any statute or treaty, there 
are terms that must be interpreted by practitioners and ultimately are 
left to the courts to define and thus provide reasonable parameters on 
conduct.
    The issue with Common Article 3 comes as a result of 18 U.S.C. 
2441, which contains the war crimes provisions. Under section 
2441(c)(3), behavior that violates Common Article 3 is a war crime. In 
that light, providing clearer definition of the meaning of terms such 
as ``outrages upon personal dignity, in particular humiliating and 
degrading treatment'' would provide useful guidance to the members of 
the Armed Forces and ultimately to the courts who are required to 
interpret the provision in the context of a criminal trial. Clarity 
could be provided by either limiting the behavior to ``serious'' or 
``outrageous'' violations or a list of specific offenses that would 
define the terms.
    General Sandkuhler. In my understanding, concerns have previously 
been expressed with the interpretation that Common Article 3 applies to 
members of al Qaeda, since they are neither combatants of a nation-
state party to the Geneva Conventions, nor engaged solely in an 
internal armed conflict. I believe that the meaning of ``humiliating 
treatment,'' as the term is listed in section 1(c) of the article, has 
presented vagueness concerns as well.
    General Romig. For a complete answer, you really would need to ask 
an administration official. However, I suspect their biggest concern 
relates to section (1)c: ``outrages on personal dignity, in particular, 
humiliating and degrading treatment''. I further suspect that the 
concern is that certain individuals would be subject to prosecution for 
past practices in violation of these standards. Again, if we would be 
outraged if it was done to U.S. servicemembers, then we ought not to be 
doing it.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    4. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, and Brigadier General Sandkuhler, in Deputy 
Secretary England's memo to the DOD, he stated his understanding that 
all DOD procedures are in compliance with Common Article 3. Mr. 
Dell'Orto, DOD's Deputy General Counsel, said the same thing at the 
Tuesday hearing. If Common Article 3 is this vague, how is it possible 
to determine that DOD is in compliance with its obligations?
    General Black. Common Article 3 represents a baseline of treatment 
that soldiers have recognized as applicable in all conflicts for 
several decades. In fact, in most cases, soldiers have, as a matter of 
policy, been providing greater protections than those afforded in 
Common Article 3. While there may be some ambiguity as to minimum 
protections provided by Common Article 3, soldiers have been trained to 
treat all individuals with dignity and respect and in a humane manner 
rather than to apply minimum standards.
    Admiral McPherson. DOD has been implementing Common Article 3 for 
the past 50 years. The concept of humane treatment has not changed. 
What is different today, following the Supreme Court decision in the 
Hamdan case, is the categories of persons to whom Common Article 3 
applies, i.e., individuals, including members of al Qaeda, not 
associated with a Geneva signatory and regardless of the nature of the 
conflict.
    General Rives. Common Article 3 defines the minimum humanitarian 
norms applicable in ``armed conflicts not of an international 
character.'' Under section 1, the following acts are prohibited:

          (a) violence to life and person, in particular murder of all 
        kinds, mutilation, cruel treatment and torture;
          (b) taking of hostages;
          (c) outrages upon personal dignity, in particular humiliating 
        and degrading treatment;
          (d) the passing of sentences and the carrying out of 
        executions without previous judgment pronounced by a regularly 
        constituted court, affording all the judicial guarantees which 
        are recognized as indispensable by civilized peoples.

    Most of these are self-explanatory. In any statute or treaty, there 
are terms that must be interpreted by practitioners and ultimately are 
left to the courts to define and thus provide reasonable parameters on 
conduct. As required by the Geneva Conventions, DOD directs that 
members of the DOD components ``comply with the law of war during all 
armed conflicts, however such conflicts are characterized, and in all 
other military operations.'' To ensure compliance, DOD trains its 
personnel on the law of war. The training is generally to a higher 
standard of behavior than that required by Common Article 3, that 
required toward prisoners of war. As a result, the standards of Common 
Article 3 are not an issue.
    The issue with Common Article 3 comes as a result of 18 U.S.C. 
2441, which contains the war crimes provisions. Under section 
2441(c)(3), behavior that violates Common Article 3 is a war crime. In 
that light, providing clearer definition of the meaning of terms such 
as ``outrages upon personal dignity, in particular humiliating and 
degrading treatment'' would provide useful guidance to the members of 
the Armed Forces and ultimately to the courts who are required to 
interpret the provision in the context of a criminal trial. Clarity 
could be provided by either limiting the behavior to ``serious'' or 
``outrageous'' violations or a list of specific offenses that would 
define the terms.
    General Sandkuhler. As indicated in the answer to question 1 above, 
DOD has implemented the full body of the Geneva Conventions for the 
past 50 years. DOD has been in compliance with Common Article 3 because 
it has based policies, such as Army Regulation 190-8 (Enemy Prisoners 
of War, Retained Personnel, Civilian Internees and Other Detainees), on 
the full-body of the Geneva Conventions, which are more expansive than 
Common Article 3. DOD policy is to apply the Law of War in all armed 
conflicts, regardless of how characterized, and in all other military 
operations. By that measure, the minimum standards of Common Article 3 
are covered.

    5. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, the Department of Justice (DOJ) representative 
said on Tuesday that the Common Article 3 prohibition of ``outrages 
upon personal dignity, in particular, humiliating and degrading 
treatment,'' is a phrase ``susceptible of uncertain and unpredictable 
application.'' He went on to say that the Supreme Court has held that 
in interpreting treaty provisions such as Common Article 3, the meaning 
given by international tribunals and other state parties to the treaty 
must be accorded consideration. This, he cautioned, will create 
uncertainty for those who fight to defend us from terrorists. Isn't it 
true of any treaty, and of all of international law, that courts may 
take into consideration the views held by other state parties?
    General Black. U.S. courts may consider foreign nations' 
interpretations of treaty provisions or customary international law 
when contemplating the judicial interpretation of the same provisions 
under U.S. law if determined to be relevant. However, the specific 
methods of application or legal interpretation are not binding on U.S. 
courts.
    Admiral McPherson. Yes, those views may be generally taken into 
account, but they do not control and should be used only to the extent 
they are helpful in contributing to a logical understanding of the 
provisions under consideration.
    General Rives. It is a basic rule of sovereignty that the United 
States would not be bound by the decision of a foreign or international 
tribunal that a certain act constituted a violation of Common Article 
3. Interpretations provided by other state parties or courts are not 
binding on U.S. practice or domestic interpretations. As in other 
cases, how other state parties and courts have addressed an issue can 
be helpful in framing issues and identifying concerns, but those 
decisions or writings are not considered binding precedent that must be 
followed by the United States. If universal agreement develops among 
states that a specific conduct or act violates Common Article 3, then 
the United States is bound to abstain from that act.
    General Sandkuhler. Yes, those views may be generally taken into 
account, but they are not controlling.
    General Romig. Yes, it is a common and longstanding practice of 
U.S. courts, to include the U.S. Supreme Court, to look to the manner 
in which certain treaty provisions have been interpreted by other state 
parties and international tribunals. It is not required that U.S. 
courts engage in this practice. However, if other state party/
international tribunal interpretations of treaty provisions are looked 
to, such interpretations are merely one of many factors taken into 
``consideration'' by U.S. courts. To raise the specter of U.S. courts 
being bound by treaty interpretations made by the European Court on 
Human Rights or the International Criminal Tribunal is truly a red 
herring and simply untrue.
    Admiral Hutson. The courts may and should consider views held by 
other state parties, certainly in matters of international importance 
and character. Those views are never controlling. So long as those 
views only inform and never control decisions by domestic courts, there 
can never be a danger. Not even considering other views is 
intellectually lazy and ill-advised.

    6. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, isn't it also the case that the 
interpretations given by foreigners are not binding on domestic 
interpretations?
    General Black. Statements by foreign leaders, academics, or members 
of important associations such as the International Committee of the 
Red Cross may be looked to by U.S. courts when determined to be 
relevant and helpful. But this information is in no way binding on U.S. 
courts or determinative of the action U.S. courts should take on an 
issue.
    Admiral McPherson. Yes.
    General Rives. It is a basic rule of sovereignty that the United 
States would not be bound by the decision of a foreign or international 
tribunal that a certain act constituted a violation of Common Article 
3. Interpretations provided by other state parties or courts are not 
binding on U.S. practice or domestic interpretations. As in other 
cases, how other state parties and courts have addressed an issue can 
be helpful in framing issues and identifying concerns, but those 
decisions or writings are not considered binding precedent that must be 
followed by the United States. If universal agreement develops among 
states that a specific conduct or act violates Common Article 3, then 
the United States is bound to abstain from that act.
    General Sandkuhler. Yes.
    General Romig. Yes, see above.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    7. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, do you believe that the U.S. runs a danger 
along the lines of that articulated by the DOJ representative?
    General Black. I understand this question to refer to Senator 
McCain's statement ``On the issue of Common Article 3, the DOJ 
representative said yesterday, that Common Article 3 `prohibition of 
outrages upon personal dignity'--in particular, 'humiliating and 
degrading treatment'--is a phrase susceptible of uncertain and 
unpredictable application.'' He went on to say that the Supreme Court 
has held that interpreting treaty provisions such as Common Article 3, 
that meaning given by the international tribunals and other state 
parties to the treaty, must be accorded consideration; therefore, this 
would create uncertainty.
    Certainly, U.S. courts may consider the views of other tribunals 
and state parties to conventions when relevant and appropriate in 
arriving at a decision. However, these other views are not binding and 
I know of no court decision that requires U.S. courts to consider and 
apply international interpretations of law of war provisions. In any 
event, there seems to me, no greater uncertainty here than in any case 
where courts interpret statutory language.
    Admiral McPherson. I do not believe the interpretations of 
international tribunals or other state parties will create uncertainty 
for those who fight to defend us. The Armed Forces will continue to 
issue guidance to those in the field so they clearly understand 
national law and policy which will enable them to fully support our 
national security.
    General Rives. It is a basic rule of sovereignty that the United 
States would not be bound by the decision of a foreign or international 
tribunal that a certain act constituted a violation of Common Article 
3. Interpretations provided by other state parties or courts are not 
binding on U.S. practice or domestic interpretations. As in other 
cases, how other state parties and courts have addressed an issue can 
be helpful in framing issues and identifying concerns, but those 
decisions or writings are not considered binding precedent that must be 
followed by the United States.
    General Sandkuhler. I believe that interpretations by international 
tribunals or other state parties will create uncertainty as to the 
meaning of such terms, however, our commanders will continue to issue 
guidance to our soldiers, sailors, airmen, and marines in the field to 
help them understand our legal obligations and policies as they 
continue to focus on the fight.
    General Romig. No, for the reasons stated in #5 above.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    8. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, some have suggested that Congress put in 
statute that the prohibitions contained in Common Article 3 are 
identical to the prohibition against cruel, inhumane, and degrading 
treatment contained in last year's DTA. In that bill, we defined cruel, 
inhumane, and degrading treatment with reference to the 5th, 8th, and 
14th amendments to the U.S. Constitution. Is this a good idea and what 
are the implications of our redefining Common Article 3 in this way?
    General Black. Common Article 3 contains provisions in excess of 
fundamental treatment provisions--prohibition against cruel, inhuman, 
and degrading treatment--of the DTA of 2005. Because international law 
evolves, it is impossible to fix for all time any given understanding 
of the provisions of Common Article 3. Nonetheless, it would be a good 
idea for Congress to clarify its understanding that the cruel, inhuman, 
and degrading treatment standard in the DTA was essentially the same as 
those provisions of Common Article 3 related to ``cruel treatment'' and 
``outrages upon personal dignity, in particular, humiliating and 
degrading treatment.'' Soldiers will continue to be trained to apply 
the principles of humane treatment that will exceed the baseline 
standards these two definitions contemplate.
    Admiral McPherson. Each of those amendments has produced extensive 
jurisprudence associated with domestic criminal law and civil rights 
issues. Those issues and the attendant case law might be misapplied in 
the context of the global war on terror.
    General Rives. Compliance with Common Article 3 does not require 
providing unlawful combatants with the full panoply of rights enjoyed 
by American citizens in U.S. courts and guaranteed by the U.S. 
Constitution. Because jurisprudence on the U.S. Constitution's 5th, 
8th, and 14th amendments is broad and comprehensive, incorporating 
these amendments into Common Article 3 risks guaranteeing rights and 
protections far above the standards required by international law. Care 
should be taken to ensure that any definition not necessarily expand 
the protections beyond those required by Common Article 3 and the DTA 
of 2005.
    General Sandkuhler. I would respectfully state that tying the 5th, 
8th, and 14th amendments to Common Article 3 should cause some concern, 
given that these amendments have each produced extensive and varied 
jurisprudence regarding domestic criminal law and civil rights. The 
global war on terror, as the committee is well aware, is a completely 
different paradigm from our domestic legal system.
    General Romig. No, this would cause more confusion than currently 
exists. It would subject the military to the relatively vague standards 
of U.S. court interpretations of cruel, inhuman, or degrading treatment 
or punishment per the Constitutional Amendments in contrast to the 
clear guidance in the field manual on detainee treatment and 
interrogation. Furthermore, the international community would perceive 
this as an attempt by the U.S. to unilaterally legislate and define the 
meaning of the prohibited activities of Common Article 3. Finally, it 
would, by legislation, exempt out ``humiliating and degrading'' 
practices that might subject the perpetrators and their sanctioning 
superiors to prosecution under the War Crimes Act.
    Admiral Hutson. There is no valid reason to attempt to redefine 
Common Article 3. The United States should deal only with domestic law 
in this situation, not define ourselves out of a treaty we ratified 
because it served to protect U.S. troops. However, to do so would not 
be a de facto withdrawal from Common Article 3, only a grave mistake, 
and a violation of the spirit of Common Article 3.

    9. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, if Congress were to ratify the military 
commissions as is, or authorize military commissions that fall short of 
what the Supreme Court has determined is required under Geneva Common 
Article 3, what would be the effect on our relationship to the Geneva 
Conventions and would such a step imply a de facto withdrawal from 
Common Article 3?
    General Black. I do not believe the United States can ``withdraw'' 
from the provisions of Common Article 3 as it has become customary 
international law. More importantly, the idea of treating all people 
humanely is part of the moral fabric of the U.S. Army, a binding 
element that is especially important on the field of battle. I have 
confidence that Congress and the administration can work together, and 
I am prepared to help in any way I can, to design a set of military 
commission rules that will not only comply with Common Article 3 but 
uphold the moral underpinnings of American society and the military.
    Admiral McPherson. The Supreme Court opinion is consistent with 
opinions expressed by many experts in the international community. 
Failure to include the fundamental protections required under the 
Geneva Conventions might signal a repudiation of commonly understood 
principles of international law. This would be inconsistent with the 
two pillars of our National Security Strategy, to wit: promoting 
freedom, justice, and human dignity, and leading a growing community of 
democracies that embrace the rule of law. Finally, it would directly 
contradict the practice of the United States and its coalition partners 
regarding the prosecution of war criminals before the International 
Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Iraqi 
Supreme Criminal Tribunal.
    General Rives. The President may withdraw from an Article II 
Treaty, but the terms of the treaty require the President to formally 
do so. So long as the United States remains a signatory to the 1949 
Geneva Conventions, and has ratified the Conventions, Common Article 3 
is the law of the land. The U.S. Supreme Court held Common Article 3 to 
be enforceable law in Hamdan.
    American jurisprudence does not formally recognize a de facto 
withdrawal from a treaty. So long as the United States is a party to 
the 1949 Geneva Conventions, without any reservation as to Common 
Article 3, there can be no de facto withdrawal. And, following Hamdan, 
until the United States formally withdraws from the 1949 Geneva 
Conventions, individuals directly affected by an act or omission of the 
government have judicial standing.
    General Sandkuhler. While I cannot say that it would imply a de 
facto withdrawal from Common Article 3, it would certainly send a mixed 
message to an international community to whom we have stressed our 
adherence to the rule of law.
    General Romig. The problem with such a step would be that it would 
give our future adversaries the green light to interpret the Geneva 
Conventions as they see fit, to the detriment of future U.S. 
servicemembers who may fall into their power. Additionally it would 
further diminish both our international stature and our ability to 
influence in the critical arena of compliance with the law of war.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    10. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, you have raised some concerns about the 
enforcement of Common Article 3 following the Hamdan decision because 
the Supreme Court has ruled that it applies to the global war on 
terrorism and because it can be enforced through the war crimes 
statute. If the United States made it clearer what violations of Common 
Article 3 were enforceable through the war crimes statute, would this 
address your concerns for greater certainty about possible criminal 
prosecutions? In other words, can your concerns be addressed by 
clarifying U.S. law without throwing into doubt U.S. acceptance of 
Common Article 3, or without reinterpreting Common Article 3 itself?
    General Black. Yes, and I believe if the DOJ and the DOD engage in 
a deliberative process to review what War Crimes Act amendments are 
necessary, we can provide Congress some proposed legislation that will 
accomplish this important task. Army Judge Advocates are now involved 
in the process, led by the DOJ and with Judge Advocates of the other 
Services to propose to Congress the best way to enable military 
commissions to adjudicate the full-range of offenses that are at issue 
in the global war on terrorism.
    Admiral McPherson. Yes; and I would like to note that military 
personnel are already accountable to a higher criminal standard by 
operation of articles 92, 93, and 134 of the UCMJ, and thus 
interpretation of the War Crimes Act is primarily a matter of interest 
for our civilian employees and contractor personnel. There is one 
phrase in Common Article 3 that many would like to see better defined 
for purposes of War Crimes Act enforcement, and that is ``outrages upon 
personal dignity, in particular humiliating and degrading treatment.''
    General Rives. Yes, I believe that is a reasonable approach. Under 
18 U.S.C. 2441(c)(3), conduct that violates Common Article 3 is a war 
crime. In that light, providing clearer definition of the meaning of 
terms such as ``outrages upon personal dignity, in particular 
humiliating and degrading treatment'' would provide useful guidance to 
the members of the Armed Forces and ultimately to the courts who are 
required to interpret the provision in the context of a criminal trial. 
Clarity could be provided by either limiting the behavior to 
``serious'' or ``outrageous'' violations or a list of specific offenses 
that would define the terms. That would be very helpful.
    General Sandkuhler. I think it is possible to clarify U.S. law 
without throwing into doubt U.S. acceptance of Common Article 3. 
Drafters would obviously need to use care in order to avoid the 
appearance that we are either backing away from any of our obligations, 
or changing our position on Common Article 3 in the midst of a conflict 
to which the Supreme Court has held it applies.
    General Romig. I do not recall that I expressed any concerns about 
enforceability of Common Article 3 under existing law. I do not believe 
it is necessary for the U.S. to clarify the standards set out in Common 
Article 3. To do so would open the door for future adversaries to do 
the same to the detriment of our servicemembers captured by them. As I 
stated in my answer to question #2, it is not possible to conceive of 
every future interrogation technique or detainee treatment that would 
violate the intent of the language of Common Article 3. I have no doubt 
that imaginative interrogators and detention personnel will find ways 
to inflict treatment that violates the clear intent of the Article and 
which we would find objectionable if applied to our servicemembers.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

                          military commissions
    11. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, in his testimony before the Senate Judiciary 
Committee on Tuesday, Mr. Daniel Dell'Orto, the Principal Deputy 
Counsel at the DOD, stated that ``courts-martial are more solicitous of 
the rights of the accused than are civilian courts,'' and that, ``[f]or 
every court-martial rule that is arguably less protective of the 
accused than its civilian analog, there are several that are 
indisputably more protective.'' Mr. Dell'Orto concludes that these 
greater rights afforded to defendants in a court-martial would 
compromise intelligence gathering and military operations if they are 
granted to detainees. Do you agree with Mr. Dell'Orto's assessment of 
the courts-martial rules?
    General Black. Yes. In many respects the UCMJ and Manual for 
Courts-Martial provide greater procedural and substantive due process 
for the military accused than that provided to a civilian in the 
Federal criminal justice system. Just to remark upon a few, Article 
31(b), Article 32, Article 46, and Article 66 of the UCMJ all provide 
substantially greater procedural and substantive due process than their 
civilian counterparts. These greater rights, if granted to enemy 
combatants, could affect intelligence operations, from the gathering of 
intelligence to its use at a commission.
    Admiral McPherson. Some court-martial protections are more 
stringent than their civilian criminal system counterparts. For 
example, the requirement to give Article 31(b) rights at the initiation 
of questioning and not solely in a custodial setting is one example. 
Other examples are the military requirement for speedy trial and broad 
discovery rules under the Rules for Courts-Martial. However, in most 
other areas the military rules are reflective of Federal rules and 
provide the fundamental guarantees discussed by the Supreme Court.
    General Rives. The military justice system gives servicemembers 
virtually all rights and privileges that are afforded to citizens who 
face prosecution in civilian courts. In many areas--such as the right 
to counsel, the pretrial investigatory process, discovery, sentencing, 
post-trial processing, and appeals--the military system offers benefits 
to an accused that are more favorable than those available in civilian 
systems.
    The battlefield is not an orderly place. The military commission 
process has to take into account that fact. While I believe that the 
UCMJ and the Manual for Courts-Martial is a superb starting point for 
updating military commissions, I recognize there will necessarily be 
differences from those documents and the rules and procedures for 
military commissions. The processes and procedures in the UCMJ and 
Manual for Courts-Martial can be readily adapted to meet the needs of 
military commissions and still meet the requirements of criminal 
systems established by Common Article 3.
    General Sandkuhler. Some aspects of the UCMJ and the court-martial 
rules do afford more protection to an accused than rules in the 
civilian criminal justice system. For example, Article 31(b) of the 
code requires that a rights warning be provided to a suspect at the 
initiation of questioning, without regard to whether the suspect is 
``in custody.'' Other examples are the speedy trial parameters set 
forth in Article 10 and rule 707, ``open file'' discovery rules, and 
the extremely detailed providence inquiry military judges must conduct 
with an accused before accepting any guilty plea. Some aspects of the 
military justice system, if transposed ``as is'' upon the commissions 
process without taking into account differences between mission 
accomplishment in the war on terror and standard criminal 
investigations could have an impact on battlefield missions.
    General Romig. Although it is true that the court-martial process 
does provide significant due process protections for servicemembers, I 
believe it is misleading to say those safeguards would jeopardize 
intelligence gathering or military operations. There has been a number 
of courts-martial prosecuted where there was intelligence or 
operational issues involved. In each case there were adequate 
protections afforded to both the accused and the government to ensure 
prosecution without disclosing classified information or damaging 
military operations. For prosecuting military commissions, those rules 
that would not make sense for use on a battlefield should be modified 
or eliminated, see question 14 below.
    Admiral Hutson. I agree with Mr. Dell'Orto's assessment of the 
comparison of military and civilian law.

    12. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, in your extensive collective experience with 
courts-martial have you found that the process currently in place would 
jeopardize our intelligence gathering and military operations?
    General Black. Yes. There are a number of aspects of the court-
martial system that could result in an unacceptable degree of 
compromise to intelligence gathering and military operations if the 
court-martial system was used to prosecute detainees. Of particular 
concern are the rules of discovery in the court-martial system. The 
rules of discovery in the courts-martial are extremely broad. Soldiers 
accused of a crime are required to have the same access to witnesses 
and evidence as the prosecutor. Prosecuting detainees in such an open 
discovery system could force the government to reveal classified 
evidence regarding how it came by intelligence and what was known or 
not known about terrorist operations.
    Admiral McPherson. The broad discovery rules used in military 
courts-martial practice are unlikely to jeopardize intelligence 
gathering and military operations. The substantive and procedural 
rights addressed in the MCM relate to the use of evidence against an 
accused at trial. While application of those rights to detainees might 
limit the ability to present legally admissible evidence against such 
detainees at trial before a military commission or court-martial, those 
evidentiary issues should not present a hindrance to intelligence 
gathering and military operations, especially given the procedural 
mechanisms available within the MCM for protecting sensitive 
information.
    General Rives. The process used to try individuals before military 
commissions must be compatible with intelligence gathering and military 
operations. Because each activity necessarily involves different 
processes, procedures, and objectives, policy makers must determine the 
primary focus, recognizing that focus can change depending on timing 
and individual circumstances. I believe that a process can be designed 
to accommodate those interests. The UCMJ and the MCM are certainly fine 
as starting points for updating military commission processes and 
procedures. I believe the administration is drafting legislation for 
your consideration that addresses and accommodates each of those 
concerns.
    General Sandkuhler. Adopting the UCMJ and rules for courts-martial 
``whole cloth'' could impact intelligence gathering and military 
operations. But we can adapt to meet the required fundamental 
guarantees and minimize the impact.
    General Romig. See number 11 above.
    Admiral Hutson. The process currently in place would not jeopardize 
our intelligence gathering or military operations. Protecting the 
rights of individuals would only serve to enhance them by making the 
U.S. stronger. It would preserve the ideals and aspirations that form 
the historical basis for our strength. It is who we are.

    13. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, do you agree with Mr. Dell'Orto's assessment 
of the consequences of applying those rules to detainees?
    General Black. Yes. I believe trying detainees by courts-martial 
would result in granting detainees more rights at trial then are 
provided to U.S. citizens facing trial in Federal court. Additionally, 
trying detainees under a courts-martial system would create a high 
potential for the compromise of intelligence information.
    Admiral McPherson. Yes, we must be very careful when adopting rules 
for military commissions in areas such as discovery, access to 
evidence, and self-incrimination. Overall, a careful balancing of 
individual rights and national security interests is required.
    General Rives. The battlefield is not an orderly place. The 
military commission process has to take into account that fact. While I 
believe that the UCMJ and the MCM is a superb starting point for 
updating military commissions, I recognize there will necessarily be 
differences from those documents and the rules and procedures for 
military commissions. The processes and procedures in the UCMJ and MCM 
can be readily adapted to meet the needs of military commissions and 
still meet the requirements of criminal systems established by Common 
Article 3.
    General Sandkuhler. I would say that we must be very careful in 
drafting rules for military commissions, particularly in areas such as 
discovery, access to evidence, and self-incrimination. The application 
of these rules without modification could have unintended consequences 
on the battlefield as well as in the actual commissions process.
    General Romig. No, see number 11 above.
    Admiral Hutson. No, I do not agree with his shortsighted 
assessment.

    14. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, in a letter dated July 10, 2006, and addressed 
to the Chairman of the Senate Judiciary Committee, a group of retired 
Judge Advocates state that we should ``bring accused terrorists to 
justice in military trials based on the UCMJ and MCM.'' The letter goes 
on to say that, in developing legislation to address the Hamdan ruling, 
``it should start from the premise that the United States already has 
the best system of military justice in the world'' but that narrowly 
targeted amendments to the UCMJ to accommodate ``specific difficulties 
in gathering evidence during the time of war'' would be acceptable. Do 
you believe the UCMJ and the MCM are adequate to try detainees?
    General Black. I would concur with the statement that the United 
States has the best military justice system in the world, but that does 
not mean it is the proper forum to try unlawful enemy combatants 
suspected of committing war crimes. Trying unlawful enemy combatants 
presents two major challenges that trying a U.S. servicemember does 
not. First, much of the evidence against suspected enemy combatants 
comes from intelligence sources that might be compromised if the enemy 
combatant were tried under the UCMJ. Second, collection of evidence 
against an enemy combatant is often done under difficult circumstances 
making it untenable to follow the usual rules of collection and 
authentication. Thus, probative evidence might be excluded because of 
its method of collection or challenges to its authentication.
    Admiral McPherson. Yes, if modified in the areas that present the 
most concern for trying terrorists as discussed above.
    General Rives. I believe that the UCMJ and the MCM is a superb 
starting point for updating military commissions. The processes and 
procedures in the UCMJ and MCM have served us well and can be readily 
adapted to meet the needs of military commissions. The administration 
is preparing legislation for your consideration using this approach.
    As I indicated in my testimony, I believe you could enact an 
Article 135(a) that could detail the basic substantive requirements for 
military commissions and then permit an executive order to have the 
details, just as we have the MCM to provide detailed guidance for the 
trial of courts-martial. Alternatively, Congress could create a 
separate Code of Military Commissions as a new chapter in title 10, 
modeled to an appropriate degree after the UCMJ and similarly leave the 
details to an executive order. Either method must address the concerns 
articulated in Hamdan v. Rumsfeld.
    General Sandkuhler. Not without modifications regarding some of the 
aspects and rules previously addressed.
    General Romig. As I testified, I believe the UCMJ and MCM should be 
the starting point for the military commissions. Those rules or 
procedures that do not make sense for the unique situations of the 
combat environment should either be modified or removed for military 
commissions. An example of this would be the requirement to read a 
captured combatant a rights warning before questioning. This would be 
counterproductive to gathering intelligence and doesn't make sense on 
the battlefield. But the fact that there are rules or procedures that 
should be modified or not used does not mean that you could not use any 
of the UCMJ/MCM rules or procedures. They should be the starting point 
and then a point-by-point analysis could determine which ones should be 
modified/eliminated.
    Admiral Hutson. With minor modifications, I believe the UCMJ and 
MCM are adequate to successfully (i.e., justly) prosecute detainees.

    15. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, what do you make of the suggestion by some 
that our starting point should be the military commissions set up under 
Military Order One, and that, in fact, Congress should consider merely 
ratifying those procedures?
    General Black. I suggest that the starting point is not critical. 
So long as the structure of the military commissions is a blend of 
Military Order 1, the UCMJ, the MCM, and the law of war, they will 
fulfill their purpose of ensuring full and fair justice and order on 
the battlefield.
    Admiral McPherson. I do not believe it will matter whether the 
military commission procedures adopted will modify Military Order 1 to 
bring those procedures into conformity with Common Article 3 or, in the 
alternative, modify UCMJ procedures to accommodate national security 
concerns while still conforming to Common Article 3. What is important 
is that we end up with a system that is consistent with our obligations 
under Common Article 3.
    General Rives. I believe that the Nation would be better served by 
a fresh start to the military commission process. Existing criminal 
justice systems, including the process established by Military 
Commission Order 1, should be reviewed to develop a system that would 
best serve the interests of justice and those of the United States. The 
UCMJ and the MCM is a superb starting point in doing so. The processes 
and procedures in the UCMJ and MCM have served us well and can be 
readily adapted to meet the needs of military commissions. I believe 
the administration is preparing legislation for your consideration 
using this approach.
    General Sandkuhler. It is a balancing process, regardless of 
whether you modify Military Order 1 or UCMJ procedures. What is 
important is that we end up with a system that is consistent with our 
obligations under Common Article 3 and our interests in our national 
security.
    General Romig. I strongly disagree with that proposal. The 
procedures set up under the President's military order were basically 
modeled on the practice of military justice 60 years ago. Today's 
military commissions should reflect the development and evolution of 
the practice of military justice over the last 60 years.
    Admiral Hutson. Merely ratifying the procedures of Military Order 1 
would ensure convictions but equally ensure international and domestic 
disgust and eventual overturn by the Supreme Court.

    16. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, if the current rules are not adequate, what 
changes need to be made to those rules?
    General Black. The Supreme Court in the Hamdan decision cited to a 
number of areas that must be changed before military commissions will 
pass Supreme Court review. Among those changes are: the creating of 
additional rights and procedures to ensure military commissions are in 
compliance with Common Article 3 of the 1949 Geneva Conventions, and a 
statement confirming the date of commencement of armed conflict with al 
Qaeda.
    Admiral McPherson. A review of the necessary changes is underway. 
Preliminarily, the current rules need to address more adequately issues 
such as discovery, access to evidence, presence of the accused, and 
self-incrimination. This will require a careful balancing of individual 
rights and national security interests in order to ensure adequate 
protection of both.
    General Rives. I believe that the UCMJ and the MCM is a superb 
starting point for updating military commissions. The processes and 
procedures in the UCMJ and MCM have served us well and can be readily 
adapted to meet the needs of military commissions. I believe the 
administration is preparing legislation for your consideration using 
this approach.
    As I indicated in my testimony, I believe you could enact an 
Article 135(a) that could detail the basic substantive requirements for 
military commissions and then permit an executive order to have the 
details, just as we have the MCM with the details. Alternatively, 
Congress could create a separate Code of Military Commissions as a new 
chapter in title 10, modeled to an appropriate degree after the UCMJ 
and similarly leave the details to an executive order. Either method 
must address the concerns articulated in Hamdan v. Rumsfeld.
    General Sandkuhler. A detailed review of the necessary changes is 
underway. Preliminarily, the current rules need to more adequately 
address issues with respect to discovery, access to evidence, presence 
of the accused, and self-incrimination, to name a few. I believe that a 
thorough, deliberate review without a ``rush to the objective'' is 
extremely important.
    General Romig. It would be much easier to modify the UCMJ/MCM 
procedures and rules than to try to correct the problems with the 
current process. The fundamental issues of fairness and independence 
and the appearance of fairness and independence cannot be addressed 
without major changes to the procedures and processes. The presiding 
officer should be redesignated as a military judge and that person 
should have the authority and independence of a military judge under 
the court-martial process. The prosecutors should not be selected by 
the appointing authority or be answerable to the appointing authority. 
The appointing authority should be a senior military commander and not 
someone selected by a political appointee. There should be a judicial 
review process that provides meaningful review that would allow action 
to be taken when there has been an injustice done. The accused should 
be allowed to hear all of the evidence that is presented against him. 
These are just a few of the concerns that I have about the process as 
it exists now.
    Admiral Hutson. The only necessary changes would relate to the 
Military Rules of Evidence in order to accommodate the reality of 
evidence gathering by soldiers overseas.

    17. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, how, in your view, can Congress best fashion 
legislation that will stand up to Supreme Court scrutiny?
    General Black. In the Hamdan case, and other cases involving 
military commissions, the Supreme Court has demonstrated a preference 
for congressional involvement in the establishment of such tribunals. 
The Supreme Court has repeatedly demonstrated its greatest deference to 
decisions relating to the conduct of war and national security when 
Congress and the President act together. To that end, Congress and the 
President, with the assistance of subject matter experts, should draft 
legislation that establishes a unified vision of the scope and mission 
of military commissions.
    Admiral McPherson. A judicial process needs to be created that 
provides for the protections afforded under Common Article 3. This 
process should utilize the UCMJ as a baseline, with modifications to 
rules such as those dealing with the presence of the accused, handling 
of classified information, admissibility of hearsay, and the like. 
Creation of this process requires a careful balancing of rights under 
Common Article 3 and national security interests.
    General Rives. I believe that the UCMJ and the MCM is a superb 
starting point for updating military commissions. The processes and 
procedures in the UCMJ and MCM have served us well and can be readily 
adapted to meet the needs of military commissions. I believe the 
administration is preparing legislation for your consideration using 
this approach.
    General Sandkuhler. Obviously, the system that we create must 
afford the protections provided for under Common Article 3. This 
process should utilize the UCMJ as a baseline, with modifications to 
rules such as those involving the right against compulsory self-
incrimination (Article 31b), the handling of classified information, 
and admissibility of hearsay, to name a few. As the Court stated, 
Common Article 3's concept of ``indispensable judicial guarantees'' 
under subsection (1)(d) ``must be understood to incorporate at least 
the barest of those trial protections recognized by customary 
international law.'' Our system must incorporate these ``barest of 
protections'' while remaining true to our national security interests.
    General Romig. Congress should start with the current UCMJ and MCM 
processes and procedures and then scrutinize those provisions that are 
problematic for cases arising in the chaos of combat on the 
battlefield. It should be a review conducted by knowledgeable 
congressional staffers, uniformed JAG Corps experts from all of the 
Services, and other outside legal experts. This would ensure that the 
best of the current practice of military justice is adapted to the 
unique environment that military commissions would be called upon to 
address.
    Admiral Hutson. Supreme Court scrutiny can be best ensured by 
making only minor changes to the UCMJ and MCM.

    18. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, how should hearsay evidence be treated in any 
legislation authorizing military commissions for detainee trials?
    General Black. Although it may not be necessary to provide for the 
admissibility of hearsay evidence when fashioning legislation on this 
matter, it is critical that it be admissible in military commissions. 
Hearsay evidence has been found necessary and reliable in the 
international war crimes tribunal at Nuremburg, the ICTY, and is 
admissible under the rules for the International Criminal Court. As 
mentioned in an earlier answer, the nature of war makes the usual 
methods of securing and presenting evidence impractical.
    Admiral McPherson. The primary concerns regarding hearsay evidence 
are authenticity and corroboration. Consistent with international 
tribunals, hearsay evidence should be admitted as long as the court is 
satisfied it is reliable given the context and character of the 
evidence for which it is admitted.
    General Rives. Under the Military Rules of Evidence (MRE), hearsay 
is not admissible except as provided in the MREs or by statute. The 
MREs further define statements that are not hearsay and provide for 
exceptions conditioned on the availability of the declarant. Further, 
there is a residual hearsay rule that permits the introduction of other 
statements, having equivalent circumstantial guarantees of 
trustworthiness, if the court determines that the statement is material 
evidence; has more probative value than other available evidence; and 
serves the interests of justice. The residual hearsay rule is 
functionally very much like that used in international tribunals and 
requires a military judge to find the evidence is probative and 
reliable.
    These existing procedures provide a significant starting point for 
addressing the hearsay issues arising in military commissions. I 
believe the administration is preparing legislation for your 
consideration which will address the use of hearsay statements.
    General Sandkuhler. It is not practicable to have the same 
foundational premise (i.e., hearsay is not admissible, pursuant to 
Mil.R.Evid. 802) for any prospective process as in courts-martial. It 
is virtually certain that cases will involve hearsay evidence from 
deployed servicemembers and foreign nationals, to name just two 
examples. Any legislation should approach a hearsay rule from the 
perspective that hearsay statements are admissible unless the 
circumstances in which they were made render them unreliable or lacking 
in probative value. A similar standard is used in international 
tribunals. Allowing only reliable/probative statements would certainly 
provide one of those ``barest of trial protections'' envisioned by 
Common Article 3.
    General Romig. This issue of how to handle hearsay evidence should 
be addressed in the process described in number 17 above.
    Admiral Hutson. Regarding hearsay, I recommend that the standard be 
that it is probative and reliable. Reliability could depend on a 
requirement that there be some other bit of corroborating evidence, as 
we do with confessions.

    19. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, should we adhere to the rules of the MCM or 
should we apply a broader rule that, for example, would permit evidence 
if it is probative and reliable?
    General Black. The rules for the commissions should be broader than 
those for courts-martial. By establishing a single rule of evidence 
that requires documents or testimony to be probative and reliable prior 
to being admitted, Congress can ensure that only reliable evidence is 
introduced at military commissions and none of that reliable evidence 
is excluded based on a technical violation of a rule of evidence.
    Admiral McPherson. Consistent with international tribunals, the 
overriding concern should be admissibility of evidence based on its 
probative value and its reliability given the context and character of 
the evidence for which it is admitted.
    General Rives. I believe that the UCMJ and the MCM is a superb 
starting point for updating military commissions with regard to 
evidentiary issues. I believe you could enact legislation that could 
detail the basic evidentiary requirements and then permit an executive 
order to have the details, just as we have the MCM with the details. I 
believe the administration is preparing legislation for your 
consideration using this approach.
    Because of the differences between military commissions and courts-
martial I believe that you could apply a broader rule that would admit 
evidence provided there are guarantees of its trustworthiness, the 
evidence has probative value, and the interests of justice are best 
served by its admission.
    General Sandkuhler. As addressed in question number 18 above, 
admissibility based upon probative value and reliability would be 
practicable and ensure fundamental fairness.
    General Romig. See numbers 17 and 18 above.
    Admiral Hutson. Again, I would rely on a standard of probative and 
apparently reliable. I would also exclude coerced evidence in all 
cases.

    20. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, does the UCMJ--and specifically Military Rule 
of Evidence 505--adequately protect classified evidence? If not, what 
do we need to do to enhance the protection of classified information in 
detainee trials?
    General Black. Under normal circumstances MRE 505 does adequately 
protect classified information. However, the prosecution of unlawful 
enemy combatants is not a normal circumstance. MRE 505 permits the 
closing of a court-martial for the presentation of classified evidence, 
but it does not permit the exclusion of the accused soldier during the 
presentation of that evidence, nor does it exclude the accused soldier 
from access to relevant classified evidence. Clearly it is not in the 
United States' national security interest to permit unlawful enemy 
combatants to have access to information that may compromise the 
security of our Nation. As a result, we must carefully craft rules that 
balance the necessity for a full and fair trial with the United States' 
national security interests. We may determine that there are rare 
occasions when a detainee may be excluded from the military commission. 
That determination must be made by a competent authority as part of a 
rigorous and regimented process that ensures the accused receives a 
full and fair trial.
    Admiral McPherson. MRE 505 deals with access to classified 
information and how that classified information can be placed in a 
public forum. MRE 505 provides the Federal Government with a privilege 
against disclosure of classified information. The privilege may only be 
exercised ``by the head of the executive or military department or 
government agency concerned,'' and then only upon ``a finding that the 
information is properly classified and that disclosure would be 
detrimental to the national security.'' MRE 505 permits the government 
in courts-martial to delete specified items of classified information 
from documents or substitute a portion or provide a summary of the 
information from such documents to protect classified information. The 
military judge, upon motion by the Government, may make this redaction 
or substitution determination ex parte in camera.
    General Rives. I believe the procedures of MRE 505 adequately 
protect classified evidence.
    MRE 505 is based on the Classified Information Procedures Act 
(CIPA) (title 18, U.S.C. App. III). CIPA is designed to prevent 
unnecessary or inadvertent disclosures of classified information and 
advise the government of the national security implications of going 
forward. MRE 505 achieves a reasonable accommodation of the United 
States' interest in protecting information, and the accused's need to 
be able to mount a defense. The rule permits in camera, ex parte 
consideration of the Government's concerns by a judge, the substitution 
of unclassified summaries or other alternative forms of evidence, and 
ensures fairness to the accused. Under MRE 505, both the prosecution 
and the accused rely on and know about the evidence going to the court. 
The accused knows all that is to be considered by the trier-of-fact, 
and has opportunity to respond to all, and to assist the defense 
counsel in responding to all.
    General Sandkuhler. First, I interpret Common Article 3's 
requirement of ``at least the barest of trial protections recognized by 
customary international law'' to mean that accused individuals should 
have access to the evidence presented against them. Common Article 3 
does not require that such individuals have the same discovery rights 
as guaranteed by the Constitution or the UCMJ. (The UCMJ affords an 
accused servicemember far greater discovery rights than American 
civilians have in our Article III courts.) MRE 505 addresses an 
accused's access to classified information and how that classified 
information may be produced at courts-martial. At a minimum, an ex 
parte review should be conducted by the presiding officer (I favor a 
judge) who could then order production of an unclassified summary of 
the evidence. (Although addressing in camera review, MRE 505(i) 
provides a good starting point for addressing this matter.) 
Unclassified summaries used at trial would facilitate the protection of 
classified evidence and the accused's ``barest of trial protections'' 
under Common Article 3.
    General Romig. MRE 505 has worked well over the years in numerous 
courts-martial cases involving classified material. I believe that this 
procedure would be adequate to protect the interests of the government 
and yet ensure the accused received a fair trial. Having said that, I 
do believe it should be reviewed in the process described in number 17 
above to ensure there are not unanticipated problems in the MRE 505 
process.
    Admiral Hutson. Yes, the UCMJ and MCM 505 adequately protect 
classified information.

    21. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, in testimony before the Senate Judiciary 
Committee on Tuesday, much was made of the potential problems posed by 
Article 31(b) of the UCMJ--which essentially sets up the military's 
Miranda rights--in the context of detainee trials. Is it the case that 
this article ties our hands with respect to intelligence gathering?
    General Black. There is a real possibility that Article 31(b) could 
adversely affect the gathering of intelligence if soldiers were 
required to advise detainees that they are permitted to remain silent. 
Article 31(b) was created by Congress to protect the fifth amendment 
right of U.S. servicemembers against self-incrimination during criminal 
investigations. The questioning of suspected unlawful enemy combatants 
by U.S. servicemembers is not done as part of a criminal investigation; 
it is done for the purpose of gathering intelligence. The application 
of Article 31(b) to suspected enemy combatants would be harmful to 
intelligence operations and would not fulfill Congress's intent when it 
created Article 31(b).
    Admiral McPherson. UCMJ Article 31(b) does not apply to 
interrogations for intelligence gathering. Article 31(b) states that 
when an accused or person suspected of an offense is being questioned, 
that person must be informed of their rights to remain silent and not 
make incriminating statements. Failure to so inform a suspect results 
in inadmissibility at trial of the statements made during the 
interrogation, and any derivative evidence. Such rights advisements in 
the context of investigating criminal offenses will not ``tie our 
hands'' with regards to intelligence gathering.
    General Rives. Article 31(b), UCMJ, is applicable whenever an 
individual subject to the UCMJ interrogates, or requests any statement 
from an accused or a person suspected of an offense. If a person 
subject to the Code interrogates or questions a person suspected of an 
offense, the questioner must first inform the person of the nature of 
the accusation, advise him that he does not have to make any statement 
regarding the offense of which he is accused or suspected and that any 
statement made by him may be used as evidence against him in a trial by 
court-martial. The primary difference between Article 31 and the 
civilian requirement to warn is that the requirement to warn is 
triggered much earlier than whether the individual is in custody. 
Article 31(a) provides that a questioner subject to the code may not 
compel any person to incriminate himself or to answer any question the 
answer to which may tend to incriminate him.
    The remedy for failure to comply with Article 31 is the exclusion 
of the unwarned or compelled statement in a court-martial. If Article 
31 were made applicable to military commissions, it would obviously 
preclude the admissibility of an unwarned or compelled statement. I do 
not believe these rules impact the intelligence gathering process, but 
they would impact any subsequent use in a criminal proceeding.
    While I believe that the UCMJ and the MCM is a superb starting 
point for updating military commissions, I recognize there will 
necessarily be differences between those documents and the rules and 
procedures for military commissions. The processes and procedures in 
the UCMJ and MCM can be readily adapted to meet the needs of military 
commissions and still meet the requirements of criminal justice systems 
established by Common Article 3. The requirement to warn an individual 
before questioning is one area where deviation from the established 
UCMJ framework may well be warranted. I believe the administration is 
preparing legislation for your consideration using this approach.
    General Sandkuhler. Article 31(b) requires that someone suspected 
of an offense must be advised of his right to remain silent when 
questioned, regardless of whether he is actually ``in custody.'' 
Article 31(b) does not address interviews or interrogations conducted 
to gather intelligence. Therefore, Article 31(b)'s requirement does not 
tie our hands vis-a-vis intelligence gathering. Under a strict 
application of the UCMJ, a tougher issue could arise if an individual 
from whom U.S. personnel sought intelligence was suspected of an 
offense as well. Clearly a strict application of the UCMJ would go 
above and beyond our Common Article 3 obligations.
    General Romig. This argument is a ``red herring'' in that rights 
warnings at the point of capture on a battlefield are not practical and 
should not be part of the procedures for military commissions. The 
review process I mentioned in number 17 above should look at whether 
there should be rights warnings at another point in the process such as 
a determination that a captured detainee lacks legal status as a lawful 
combatant or later in the process such as when charges are preferred. 
It may be that rights warnings do not make sense for unlawful 
combatants until judicial proceedings are initiated or perhaps they 
should not apply in any context. This is not a ``show stopper'' issue 
that the administration representatives seem to indicate that it is.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    22. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, if the military's Miranda rule is truly 
problematic, how should we fix it?
    General Black. Article 31(b) could be problematic. The simplest way 
to fix the situation is to ensure that Article 31(b) is not applicable 
to evidence used at military commissions.
    Admiral McPherson. UCMJ Article 31(b) is broader than Miranda in 
that it requires rights advisements at the point a person is suspected 
of a criminal offense, not at the point of custodial interrogation. 
When an individual is detained on the battlefield, that person is not 
necessarily an accused or a person suspected of an offense within the 
meaning of Article 31(b) and they can be interrogated, often for 
intelligence purposes.
     To the extent that the issue is whether evidence from battlefield 
interrogations could be used at trial before a military commission, one 
change could be that rights under Article 31(b) not attach until after 
the individual is reasonably suspected of having committed an offense, 
and is subject to custodial interrogation. Another alternative is 
relaxing the ``exclusionary rule'' for unwarned statements. For 
instance the two most recent convening International Criminal Courts, 
ICTY and International Criminal Tribunal for Rwanda (ICTR), do not have 
an exclusionary rule and the accused has the burden of proving that the 
``manner of production casts substantial doubt on the evidence's 
reliability or that its admission would seriously damage the integrity 
of the proceedings.''\1\
---------------------------------------------------------------------------
    \1\ Both tribunals adopted a ``best evidence'' type of probative 
value standard in Article 89 of their respective rules of procedure. 
The standards for excluding evidence are at Article 95 of each 
tribunals rules.
      International Criminal Tribunal Yugoslavia Rules of Procedure: 
http://www.un.org/ictv/legaldoc-e/index.htm
      International Criminal Court Rwanda Rules of Procedure: http://
69.94.11.53/default.htm
---------------------------------------------------------------------------
    General Rives. The battlefield is not an orderly place. The 
military commission process has to take into account that fact. While I 
believe that the UCMJ and the MCM is a superb starting point for 
updating military commissions, I recognize there will necessarily be 
differences between those documents and the rules and procedures for 
military commissions. The processes and procedures in the UCMJ and MCM 
can be readily adapted to meet the needs of military commissions and 
still meet the requirements of criminal justice systems established by 
Common Article 3. The requirement to warn an individual before 
questioning is one area where deviation from the established UCMJ 
framework may well be warranted. I believe the administration is 
preparing legislation for your consideration using this approach.
    General Sandkuhler. I do not believe that Article 31(b) is truly 
problematic, because it does not apply to intelligence gathering. To 
address the ultimate issue, I do not believe that we need a 31(b) 
rights advisement (or Miranda warning) equivalent in a process designed 
for prosecuting unlawful enemy combatants.
    General Romig. See number 21 above.
    Admiral Hutson. I would rely on the administration and DOD to 
formulate the rules to the extent they demonstrate an understanding of 
justice and the role of the United States in terms of human rights and 
the rule of law. To the extent they fail in that regard, Congress could 
assume its constitutional role.

    23. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, some have suggested that, instead of setting 
forth a set of military commission rules that would comply with the 
Hamdan decision, we should give broad discretion to the administration 
and specifically to the DOD to permit them to formulate the new trial 
rules post-Hamdan. What is your view of this proposed course of action?
    General Black. I believe a combination of specific rules and a 
grant of authority to the DOD is the best method of approaching this 
problem. The specific rules should reflect our Nation's commitment to 
the rule of law and establish guiding principles that ensure a fair 
trial. The DOD should be granted authority to establish the majority of 
the rules of procedure that will implement those principles embodied in 
the statute. This structure would be similar to the current structure 
of the U.S. military justice system where Congress passed the UCMJ and 
the President was granted the authority to create the MCM which 
implements the UCMJ.
    Admiral McPherson. The process of developing new trial rules for 
military commissions should be a deliberative process that maximizes 
the assets of the each respective Service's JAGs, the DOD, the DOJ, the 
administration, and Congress to ultimately produce legislation for 
military commission rules that are in compliance with Hamdan.
    General Rives. I believe that legislation is appropriate, because 
as the Supreme Court noted again in Hamdan, the President's powers in 
wartime are at their greatest when specifically authorized by Congress. 
I believe that the UCMJ and the MCM is a superb starting point for 
updating military commissions. The processes and procedures in the UCMJ 
and MCM have served us well and can be readily adapted to meet the 
needs of military commissions. The legislation should provide authority 
for the executive to draft regulations, similar to the MCM, that would 
specify the implementing procedures. I believe the administration is 
preparing legislation for your consideration using this approach.
    General Sandkuhler. My view is that the administration, DOD, and 
DOJ are capable of devising a new set of rules and procedures for 
military commissions based in large part upon the UCMJ, in full 
compliance with the Hamdan decision, and amenable to Congress and the 
American people. It would be helpful for Congress to give us broad 
authorization, as in the UCMJ, and allow DOD to establish the 
procedures as we do with the MCM.
    General Romig. If this approach is taken, I am fairly confident 
that the Supreme Court will be hearing another case on military 
commissions in the future.
    Admiral Hutson. Admiral Hutson did not respond in time for 
printing. When received, answer will be retained in committee files.

    24. Senator McCain. Major General Black, Rear Admiral McPherson, 
Major General Rives, Brigadier General Sandkuhler, Major General Romig, 
and Rear Admiral Hutson, at the House Armed Services Committee hearing 
on Hamdan, Mr. Bradbury of the DOJ's Office of Legal Counsel said the 
administration wishes to maintain flexibility in introducing evidence 
coerced from detainees. Specifically, he said, ``We do not use as 
evidence in military commissions evidence that is determined to have 
been obtained through torture. But when you talk about coercion and 
statements obtained through coercive questioning, there's obviously a 
spectrum, a gradation of what some might consider pressuring or 
coercion short of torture, and I don't think you can make an absolute 
rule.'' Is Mr. Bradbury correct in his analysis of coercion and the 
need to introduce coerced evidence in detainee trials?
    General Black. I believe Mr. Bradbury is correct that the term 
coercion is imprecise and susceptible to many interpretations. What 
constitutes impermissible coercion will certainly be the subject of 
significant motion practice/litigation before the military commissions. 
If military commissions apply the probative and reliable standard to 
statements that are offered into evidence, then statements that are the 
result of impermissible coercion will be excluded as unreliable.
    Admiral McPherson. Evidence obtained from a detainee through 
torture is inherently unreliable and should be inadmissible. Evidence 
obtained through coercion may be admissible so long as the court is 
satisfied of its reliability given the context and character of the 
evidence for which it is admitted.
    General Rives. Generally, the confession or admission of an accused 
that has been determined by a military judge to be involuntary is not 
admissible in a court-martial over the accused's objection. Generally, 
a statement is involuntary if it is obtained in violation of the self-
incrimination privilege or due process clause of the fifth amendment to 
the Constitution of the United States, Article 31, or through the use 
of coercion, unlawful influence, or unlawful inducement. Each situation 
is obviously fact determinative and the military judge makes a 
determination whether the statement is voluntary considering the 
totality of the circumstances.
    I certainly trust the judgment of experienced military judges and I 
do not believe evidence that is found to be coerced and thus 
involuntary should be normally considered by a military commission.
    General Sandkuhler. I would certainly agree with Mr. Bradbury that 
the ``coercion spectrum''--from pressure to speak, to something just 
short of torture--is difficult to quantify. I also assume that it is 
likely that a significant number of detainees would allege that their 
statements were a product of coercion (if not torture), because coerced 
statements are involuntary and inadmissible in our system of 
jurisprudence. An absolute exclusionary rule would therefore create 
practicability problems. In balancing this very real concern with the 
need for fundamental fairness, I believe a rule could be fashioned such 
that, when ``coercion'' (whatever that may be) is alleged by an 
accused, such statement may still be admissible if a presiding official 
judge found by a preponderance of the evidence that the statement was 
reliable given the totality of the circumstances in which it was made.
    General Romig. There should be no coerced testimony allowed in any 
trial sanctioned or approved by the United States. You can and should 
make an absolute rule on this and to do otherwise is to start down a 
very slippery slope. I find it disturbing that representatives of the 
United States Government would argue otherwise.
    Admiral Hutson. No, Mr. Bradbury fails to understand or appreciate 
the fundamentals of justice. Coerced testimony is always unreliable 
simply because it is coerced. Moreover, it is unbecoming the United 
States to use it. There is no point in ``winning'' the war if we lose 
our heart and soul in the process.
                                 ______
                                 
            Questions Submitted by Senator Lindsey O. Graham
       jag participation in detainee interrogation working group
    25. Senator Graham. Brigadier General Sandkuhler and Major General 
Romig, did you receive the March 2003 draft report of the Working Group 
on Detainee Interrogations in the Global War on Terrorism and at the 
time, what did you think happened to the March 2003 draft report?
    General Sandkuhler. I participated in the Working Group on Detainee 
Interrogations (WG). I attended several principal-level meetings, held 
with large groups, between 23 January and 3 April 2003, when our 
involvement ended. In my absence, my deputy attended principal-level 
meetings. I also assigned a lieutenant colonel as my primary action 
officer to this WG. After the initial WG meeting on 23 January, the WG 
met for several weeks at the action officer level, preparing several 
drafts of the WG report.
    The last draft WG report we received was dated 6 March 2003. We 
took exception to portions of this draft, and my deputy, on my behalf, 
submitted comments on 10 March 2003. We were not provided a final draft 
WG report, nor was there final coordination on the report. We asked for 
the final WG report but did not receive it until 22 June 2004, when it 
was declassified and released to the public by DOD. That final WG 
report was dated 4 April 2003.
    General Romig. We did receive the draft report and we were told 
that the Secretary of Defense was issuing separate guidance that 
incorporated our concerns. We were led to believe that there was not a 
final report--that it had been put on hold because of the actions of 
the Secretary of Defense. I did not learn that there was a final report 
until over 14 months later when I believe it was revealed at another 
hearing.

    26. Senator Graham. Brigadier General Sandkuhler and Major General 
Romig, did you receive a copy of the final April 2003 report of the 
Working Group on Detainee Interrogations in the Global War on Terrorism 
that was briefed to the Southern Command (SOUTHCOM) and Guantanamo 
commanders?
    General Sandkuhler. I received a copy of the final April 2003 
report on 22 June 2004, when it was declassified and released to the 
public by DOD. The last draft I saw was dated 6 March 2003, to which I 
had provided comments on 10 March 2003. There was no final coordination 
of the report, and although I asked for the final report, I did not 
receive it until 22 June 2004.
    General Romig. No, we did not receive copies of it and we did not 
know it had been briefed to the SOUTHCOM and Guantanamo commanders.

    27. Senator Graham. Brigadier General Sandkuhler and Major General 
Romig, when did you learn that the April 2003 report had been briefed 
to SOUTHCOM and Guantanomo commanders?
    General Sandkuhler. My final involvement in review of interrogation 
techniques consisted of a meeting with DOD GC on 3 April 2003. During 
that meeting, DOD GC allowed us to read, but not keep, a draft of a 
memo that the Secretary of Defense was expected to sign approving 
certain interrogation techniques. This memo required that Commander, 
SOUTHCOM, and his staff, be briefed by the Chairman of the Working 
Group on Detainee Interrogations before implementing any approved 
techniques. I later learned that the Secretary of Defense had signed a 
memo dated 16 April 2003, approving certain techniques for use at 
Guantanamo only, and I eventually received a copy of the memo. I cannot 
recall the specific date I received the memo. I do not know when 
Commander, SOUTHCOM, and the commander of Guantanamo were actually 
briefed as required by that 16 April 2003 Secretary of Defense memo.
    General Romig. When I read these questions.

    28. Senator Graham. Brigadier General Sandkuhler and Major General 
Romig, were you able to provide input on the final April 2003 report 
and on the contents of the briefing to SOUTHCOM and Guantanamo 
commanders?
    General Sandkuhler. No. With respect to the April 2003 report, 
after providing comments on 10 March 2003 to the draft WG report dated 
6 March 2003, we did not see another draft, and did not receive a copy 
of the final WG report until 22 June 2004. We had no input at all on 
the contents of any brief provided to the SOUTHCOM and Guantanamo 
commanders.
    General Romig. No, see numbers 25-27 above.
                                 ______
                                 
               Question Submitted by Senator Bill Nelson
     the uniform code of military justice and prosecuting detainees
    29. Senator Bill Nelson. Major General Black, Rear Admiral 
McPherson, Major General Rives, Brigadier General Sandkuhler, Major 
General Romig, and Rear Admiral Hutson, a recent New York Times 
article, ``Military Lawyers Prepare to Speak on Guantanamo,'' dated 
July 11, 2006 (see attached), states that ``most military lawyers say 
they believe that few, if any, of the Guantanamo detainees could be 
convicted in regular courts-martial.'' An attorney representing a 
detainee indicated that, ``she was confident that she would win an 
acquittal for her client, who is suspected of being an accountant for 
al Qaeda, under courts-martial rules.'' If we were to use the UCMJ to 
prosecute detainees, how, and how significantly, would it have to be 
changed to ensure its application would not be a ``get-out-of-jail-free 
card'' for terrorists?

Military Lawyers Prepare To Speak On Guantanamo, by Neil A. Lewis, New 
                       York Times, July 11, 2006

          Washington, July 10--Four years ago, the military's most 
        senior uniformed lawyers found their objections brushed aside 
        when the Bush administration formulated plans for military 
        commissions at Guantanamo Bay, Cuba. This week, their concerns 
        will get a public hearing as Congress takes up the question of 
        whether to resurrect the tribunals struck down by the Supreme 
        Court.
          ``We're at a crossroads now,'' said John D. Hutson, a retired 
        rear admiral who was the top uniformed lawyer in the Navy until 
        2000 and who has been part of a cadre of retired senior 
        military lawyers who have filed briefs challenging the 
        administration's legal approach. ``We can finally get on the 
        right side of the law and have a system that will pass Supreme 
        Court and international scrutiny.''
          Admiral Hutson, one of several current and former senior 
        military lawyers who will testify this week before one of the 
        three congressional committees looking into the matter, plans 
        to urge Congress to avoid trying to get around last month's 
        Supreme Court ruling.
          Beginning shortly after the attacks of September 11, 2001, 
        the military lawyers warned that the administration's plan for 
        military commissions put the United States on the wrong side of 
        the law and of international standards. Most important, they 
        warned, the arrangements could endanger members of the American 
        military who might someday be captured by an enemy and treated 
        like the detainees at Guantanamo.
          But the lawyers' sense of vindication at the Supreme Court's 
        5-to-3 decision is tempered by growing anxiety over what may 
        happen next. Several military lawyers, most of them retired, 
        have said they are troubled by the possibility that Congress 
        may restore the kind of system they have long argued against.
          Donald J. Guter, another retired admiral who succeeded 
        Admiral Hutson as the Navy's top uniformed lawyer, said it 
        would be a mistake for Congress to try to undo the Supreme 
        Court ruling. Admiral Guter was one of several senior military 
        judge advocates general, known as JAGs, who after objecting to 
        the planned military commissions found their advice pointedly 
        unheeded.
          ``This was the concern all along of the JAGs,'' Admiral Guter 
        said. ``It's a matter of defending what we always thought was 
        the rule of law and proper behavior for civilized nations.'' 
        One of the more intriguing hearings will be held Thursday as 
        the current top military lawyers in the Navy, Army, Air Force, 
        and Marines testify before the Senate Armed Services Committee. 
        The main issue at stake will be whether they express the same 
        concerns of those out of uniform who have been critical of the 
        administration's approach.
          Longstanding custom allows serving officers to give their own 
        views at congressional hearings if specifically asked, and some 
        in the Senate expect the current uniformed lawyers to generally 
        urge that Congress not stray far from the UCMJ, the system that 
        details court-martial proceedings.
          Senator Bill Frist, the Republican leader, told reporters on 
        Monday that he did not expect the Senate to take up any 
        legislation on the issue until at least after the August recess 
        of Congress. The opportunity to rewrite the laws lies in the 
        structure of the Supreme Court's ruling, which emphasized that 
        Congress had not explicitly approved deviations from ordinary 
        court-martial proceedings or the Geneva Conventions.
          The court majority said the military commissions as currently 
        constituted were illegal because they did not have the same 
        protections for the accused as do the military's own justice 
        system and court-martial proceedings. In addition, the court 
        ruled that the commissions violated a part of the Geneva 
        Conventions that provides for what it said was a minimum 
        standard of due process in a civilized society.
          In response, some legislators have said they will consider 
        rewriting the law to make that part of the Geneva Conventions, 
        known as Common Article 3, no longer applicable. ``We should be 
        embracing Common Article 3 and shouting it from the rooftops,'' 
        Admiral Hutson said. ``They can't try to write us out of this, 
        because that means every two-bit dictator could do the same.''
          He said it was ``unbecoming for America to have people say, 
        `We're going to try to work our way around this because we find 
        it to be inconvenient.' ''
          ``If you don't apply it when it's inconvenient,'' he said, 
        ``it's not a rule of law.'' Brig. Gen. David M. Brahms, a 
        retired officer who was the chief uniformed lawyer for the 
        Marine Corps, said he expected experienced military lawyers to 
        try to persuade Congress that the law should not be changed to 
        allow the military commissions to go forward with the 
        procedures that the court found unlawful.
          ``Our central theme in all this has always been our great 
        concern about reciprocity,'' General Brahms said in an 
        interview. ``We don't want someone saying they have our folks 
        as captives and we're going to do to them exactly what you've 
        done because we no longer hold any moral high ground.''
          Senator Patrick J. Leahy of Vermont, the ranking Democrat on 
        the Judiciary Committee, which will hold its hearing on 
        Tuesday, said: ``The first people we should listen to are the 
        military officers who have decades of experience with these 
        issues. Their insights can help build a system that protects 
        our citizens without sacrificing America's ideals.''
          Underlying the debate over how and whether to change the law 
        on military commissions is a battle over the President's 
        authority to unilaterally prescribe procedures in a time of 
        war. The Supreme Court's decision was a rebuke to the 
        administration's assertions that President Bush's powers should 
        remain mostly unrestricted in a time of war.
          Most military lawyers say they believe that few, if any, of 
        the Guantanamo detainees could be convicted in a regular court-
        martial.
          Lt. Col. Sharon A. Shaffer of the Air Force, the lawyer for a 
        Sudanese detainee who has been charged before a military 
        commission, said she was confident that she would win an 
        acquittal for her client, who is suspected of being an 
        accountant for al Qaeda, under court-martial rules. ``For me it 
        was awesome to see the court's views on key issues I've been 
        arguing for years,'' Colonel Shaffer said.
          The majority opinion, written by Justice John Paul Stevens, 
        said the two biggest problems with the commissions were that 
        the military authorities could bar defendants from being 
        present at their own trial, citing security concerns, and that 
        the procedures contained looser rules of evidence, even 
        allowing hearsay and evidence obtained by torture, if the judge 
        thought it helpful. Colonel Shaffer said she was restrained 
        under the rules from calling as a witness al Qaeda informant 
        whose information had been used to charge her client. ``I'm 
        going to want for my client to face his accuser,'' she said, 
        ``and for me to have an opportunity to impeach his testimony.''

    General Black. The affect of using the UMCJ to prosecute suspected 
unlawful enemy combatants would be substantial. There are a number of 
aspects of the court-martial system that would compromise our 
warfighting mission, to include the open discovery and evidence 
collection methods. Moreover, the UCMJ provides additional protections 
to soldiers that are not afforded to civilians accused of a crime. It 
would be inappropriate to extend those additional rights not afforded 
U.S. civilians to unlawful enemy combatants. However, whatever process 
is used to try unlawful enemy combatants, it will never be a ``get-out-
of-jail-free'' card. Regardless of the outcome of any unlawful enemy 
combatant's trial, he may still be detained on separate grounds as long 
as the conflict continues.
    Admiral McPherson. The Rules for Courts Martial should be changed 
only insofar as they remain in compliance with Common Article 3, while 
not undermining our national security.
    General Rives. I believe that the UCMJ and the MCM is a superb 
starting point for updating military commissions. The processes and 
procedures in the UCMJ and MCM have served us well and can be readily 
adapted to meet the needs of military commissions. That process is 
under way and I believe the administration is preparing legislation for 
your consideration using this approach.
    As I indicated in my testimony, I believe you could enact an 
Article 135(a) that could detail the basic substantive requirements for 
military commissions and then permit an executive order to have the 
details, just as we have the MCM with the details. Alternatively, 
Congress could create a separate Code of Military Commissions as a new 
chapter in title 10, modeled to an appropriate degree after the UCMJ 
and similarly leave the details to an executive order. Either method 
must address the concerns articulated in Hamdan v. Rumsfeld.
    General Sandkuhler. The UCMJ is a great model from which to develop 
a system to prosecute unlawful enemy combatants. But some of the 
provisions and rules would certainly need to be changed/adapted to 
address this paradigm. Many of these are discussed above (e.g., 
discovery, hearsay, self-incrimination/rights warnings, handling of 
classified material). I am quite confident that collectively we (e.g., 
DOD, DOJ, the administration) can create a system with rules and 
procedures for military commissions that will provide a fundamentally 
fair trial. The rules and procedures should be based in large part upon 
the UCMJ, in full compliance with the Hamdan decision, and be amenable 
to Congress and the American people.
    General Romig. The focus and goal of fashioning rules and 
procedures for military commissions should be to meet the 
constitutional requirements of the Hamdan decision rather than 
attempting to create a process that will facilitate convictions. In 
meeting the constitutional requirements of Hamdan the drafters need to 
bear in mind the evidentiary challenges of prosecutions derived from 
the unique environment of the battlefield.
    Admiral Hutson. Principally, the MRE would have to be adjusted to 
accommodate the reality of gathering evidence. For example, hearsay 
could be admitted if it were apparently reliable and corroborated 
somehow. Physical evidence could be admitted absent a perfect chain of 
custody if it were apparently reliable. Confessions and statements 
against interest could be admitted under the same test in spite of a 
lack of Article 31 warnings.
    Coerced testimony should never be admitted under any circumstances.

    [Whereupon, at 1:47 p.m., the committee adjourned.]


 CONTINUE TO RECEIVE TESTIMONY ON MILITARY COMMISSIONS IN LIGHT OF THE 
              SUPREME COURT DECISION IN HAMDAN V. RUMSFELD

                              ----------                              


                        WEDNESDAY, JULY 19, 2006

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:00 a.m. in 
room SR-325, Russell Senate Office Building, Senator John 
Warner (chairman) presiding.
    Committee members present: Senators Warner, McCain, Inhofe, 
Collins, Talent, Chambliss, Graham, Cornyn, Thune, Levin, 
Kennedy, and Dayton.
    Committee staff members present: Charles S. Abell, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: William M. Caniano, 
professional staff member; David M. Morriss, counsel; and Scott 
W. Stucky, general counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Michael J. Kuiken, professional 
staff member; and William G.P. Monahan, minority counsel.
    Staff assistants present: Micah H. Harris, Jessica L. 
Kingston, and Jill L. Simodejka.
    Committee members' assistants present: Richard H. Fontaine, 
Jr., assistant to Senator McCain; John A. Bonsell, assistant to 
Senator Inhofe; Mackenzie M. Eaglen, assistant to Senator 
Collins; Clyde A. Taylor IV, assistant to Senator Chambliss; 
Matthew R. Rimkunas, assistant to Senator Graham; Russell J. 
Thomasson, assistant to Senator Cornyn; Stuart C. Mallory, 
assistant to Senator Thune; Mieke Y. Eoyang, assistant to 
Senator Kennedy; Frederick M. Downey, assistant to Senator 
Lieberman; William K. Sutey, assistant to Senator Bill Nelson; 
Eric Pierce, assistant to Senator Ben Nelson; Luke Ballman and 
Chani Wiggins, assistants to Senator Dayton; and Andrew 
Shapiro, assistant to Senator Clinton.

       OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN

    Chairman Warner. Good morning, everyone. The committee 
meets today to conduct the second in a series of hearings on 
military commissions in light of the recent Supreme Court 
decision in Hamdan v. Rumsfeld.
    Last week, we had an excellent hearing, with the testimony 
from the incumbent judge advocates general (JAGs) of the Armed 
Forces, the staff judge advocate to the Commandant of the 
Marine Corps, and two retired JAGs. These officers gave the 
committee the benefit of their many years of expertise in the 
areas of military justice and the law of war. I believe that 
all members will agree that the committee will benefit greatly 
from having had that important testimony.
    Today, we have two distinguished panels of witnesses from 
the private sector. The first panel is composed of 
representatives of nongovernmental organizations, including 
human rights groups and bar associations. The second is 
composed of academics who have significant research and 
teaching experience in the areas with which the committee is 
presently concerned.
    I welcome all of our witnesses and thank them for finding 
the time to join us here in the Senate this morning. I know 
that some of you had to travel substantial distances to 
participate, but this is a very important decision on behalf of 
our Nation. The credibility of our Nation, in a way, is being 
examined in the eyes of the world. While there may have been 
the best of efforts in the first effort to try and reconcile 
this issue, the Supreme Court has now spoken, and it's the 
function of Congress to write a law consistent with the 
guidelines in that court of opinion.
    Before turning to the distinguished ranking member, I would 
like to reiterate what I said last week. Congress simply must 
get it right this time. We must construct a means of 
prosecuting the detainees suspected of violations of the law of 
war, war crimes, that will afford them legal rights. Second, we 
must always keep in mind the world is watching what we do here. 
The United States has always stood for adherence to the 
international law of war, and we must proceed on any 
legislation carefully. That legislation has to be done to the 
best of our ability, such that it will survive future 
examinations by the Federal court system; and, indeed, possibly 
a future Supreme Court opinion.
    The witnesses on our first panel are as follows: Elisa 
Massimino, Washington Director of Human Rights First; Katherine 
Newell Bierman, Counterterrorism Counsel, U.S. Program, Human 
Rights; Eugene Fidell, President, National Institute of 
Military Justice (NIMJ); Michael Mernin, Chairman, Committee on 
the Military Affairs and Justice, Association of the Bar of the 
City of New York; and Dr. James Carafano, Senior Research 
Fellow, The Heritage Foundation.
    We welcome you all.
    [The prepared statement of Senator Warner follows:]

               Prepared Statement by Senator John Warner

    The committee meets today to conduct the second in a series of 
hearings on military commissions in light of the recent Supreme Court 
decision in Hamdan v. Rumsfeld. Last week, we had an excellent hearing 
with testimony from the incumbent Judge Advocates General of the Armed 
Forces, the Staff Judge Advocate to the Commandant of the Marine Corps, 
and two retired judge advocates general. These officers gave us the 
benefit of their great expertise in the areas of military justice and 
the law of war, and I believe that all members will agree that the 
committee will benefit greatly from having had their testimony.
    Today, we have two distinguished panels of witnesses from outside 
the Department of Defense. The first panel is composed of 
representatives of non-governmental organizations, including human 
rights groups and bar associations. The second is composed of academics 
who have significant research and teaching experience in the areas with 
which the committee is presently concerned. I welcome all our witnesses 
to the hearing; I know that some of you have had to travel substantial 
distances to participate, and we are grateful that you did so.
    Before turning to the distinguished ranking member, I would like to 
reiterate what I said last week: Congress must get this right. We must 
construct a means of trying detainees suspected of violations of the 
law of war that will pass muster, be effective, and protect our ability 
to wage this war. Second, we must always keep in mind that the world is 
watching what we do here. The United States has always stood for 
adherence to the international law of war, and we must proceed on any 
legislation carefully and, I hope, in a bipartisan manner.
    The witnesses on our first panel are as follows:

          Elisa Massimino, Washington Director of Human Rights First;
          Katherine Newell Bierman, Counterterrorism Counsel, U.S. 
        Program, Human Rights Watch;
          Eugene Fidell, President, National Institute of Military 
        Justice;
          Michael Mernin, Chair, Committee on Military Affairs and 
        Justice, Association of the Bar of the City of New York; and
          Dr. James Carafano, Senior Research Fellow, The Heritage 
        Foundation.

    The witnesses on the second panel are:

          Neal Katyal, Professor of Law, Georgetown University;
          David A. Schlueter, Hardy Professor of Law and Director 
        Advocacy Programs, St. Mary's University; and
          Scott L. Silliman, Professor of the Practice of Law and 
        Executive Director, Center on Law, Ethics, and National 
        Security, Duke University.

    Chairman Warner. Senator Levin.
    I'd also indicate that we discussed the International 
Committee of the Red Cross (ICRC) as being a possible 
participant this morning. In keeping with their long-time 
traditions, although they have a keen interest, they decided 
not to accept the invitation.

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. Mr. Chairman, thank you, and thank you for 
convening this series of hearings. They are extremely important 
to the Nation. You are proceeding with your customary 
thoughtfulness and care, and the Nation is very much in your 
debt for how you are handling this.
    The Supreme Court in Hamdan, ruled that because the 
military commission structure and procedure did not meet the 
standards of the Uniformed Code of Military Justice (UCMJ) or 
those of the Geneva Conventions, that they lacked ``the power 
to proceed.'' Congress has now begun the process of determining 
what needs to be done to ensure that our system for trying 
detainees for crimes meets the standards of the laws which are 
binding on the executive branch.
    One administration official has testified recently that 
Congress should simply ratify the military commission 
procedures established by the Department of Defense (DOD), 
without change. At the House Armed Services Committee (HASC) 
hearing last Wednesday, DOD Deputy General Counsel Dell'Orto 
stated that such an approach would be ``a very desirable way to 
proceed.''
    However, our Nation's top military lawyers disagree. Last 
Thursday, the committee heard from six JAGs, both Active and 
retired. They all rejected the idea that Congress should pass 
legislation authorizing the military commissions as currently 
configured. A majority of the JAGs, and I believe a majority of 
the members of this committee, favor taking the existing rules 
of courts-martial under the UCMJ as the starting point for the 
framework for our consideration of military commissions and 
making modifications where necessary to meet the conditions of 
warfare and practicality. By doing so, we would benefit from 
the development of our system of military justice over the last 
60 years.
    In addition, all the JAGs before us last week agreed that, 
consistent with the Supreme Court's ruling, exceptions to the 
rules for courts-martial ought to be based on practicality and 
necessity, not on convenience. Our hearing last week 
highlighted a number of areas which Congress will need to 
examine carefully, such as discovery rights and access to 
classified evidence. We very much welcome and need the advice 
of our JAGs and other specialists in international law in 
working our way through these complicated issues of law.
    Our JAGs are the ones most knowledgeable of our system of 
military justice. They are best able to evaluate the negative 
impact on U.S. Service personnel when we deviate from the 
standards and procedures of the UCMJ in our treatment of 
others. As the JAG of the Navy, Admiral McPherson stated, ``We 
need to think in terms of the long view, and to always put our 
sailors, soldiers, marines, and airmen in the place of an 
accused when we're drafting these rules to ensure that these 
rules are acceptable when we have someone in a future war who 
faces similar rules.''
    So, we must not repeat the mistakes the administration made 
in establishing these military commissions. Congress needs to 
proceed deliberately and carefully, soliciting a range of views 
on the appropriate procedures to be applied to detainees in 
U.S. custody. Last week's hearing with our JAGs was the right 
place to begin our discussion. Today's hearing is an important 
next step in that process. Again, I want to thank our chairman 
for scheduling this hearing, to give us an opportunity to hear 
the views of others outside government who are knowledgeable of 
our system of military justice and its impact on our security 
throughout the world.
    If our process of developing legislation on military 
commissions is perceived as open and fair, then there is a 
better chance that the end result will be accepted as 
legitimate, and that any convictions will be upheld by our 
courts.
    Procedures for military commissions must reflect our values 
as a Nation and as a leading advocate for the rule of law. This 
will strengthen our cause and help rally others to join us in 
opposing terrorism.
    I emphasize, finally, that the issue before us today is not 
whether, or for how long, detainees may be kept at Guantanamo 
or elsewhere, nor what the conditions of their detention or the 
rules for their treatment or interrogation are, or should be. 
We are only dealing with the rules that need to be adopted to 
apply in criminal trials of the small number of detainees who 
may be tried for violations of the laws of armed conflict. It 
must also be borne in mind that those who may be acquitted by a 
military commission after a criminal trial will not be 
automatically released thereby from detention.
    Again, I join you, Mr. Chairman, in welcoming all of our 
panelists, and I look forward to their testimony.
    Chairman Warner. Thank you very much, Senator Levin.
    One of our colleagues, the chairman of the Environment and 
Public Works Committee, must start his own hearing this 
morning. I invite you, Senator Inhofe, to give your comments.
    Senator Inhofe. I thank you, Mr. Chairman.
    Just to further elaborate on that, we had the water bill on 
the floor, and I'll be managing that bill, and I must get down 
there. I regret this, because I would like to stay here and 
hear the panel. However, I do want to express the minority 
view. I guess another way of putting that is once again being 
the skunk at the family picnic.
    After the last hearing on this subject, last Thursday, I 
took some time to review what we discussed, and I am worried 
about what we did then and what we're doing here today. We seem 
to be trying to create some legislation that will afford more 
rights to the unlawful enemy combatants who fought against us 
than we afford our own citizens. Now, that's what I think we're 
doing today. Let me explain.
    Historically, we tried to fight terrorism as if it were 
merely a criminal activity. We were attacked in the World Trade 
Center in 1993, in Beirut in 1983, our embassies in Tanzania 
and Kenya in 1998, and the U.S.S. Cole in 2000. Our efforts to 
use criminal law to hunt and try these terrorists didn't stop 
them, it didn't deter them. That's what we were doing in those 
days. It emboldened them.
    So, here we have the attacks on the Twin Towers in New York 
and on the Pentagon and on the Flight 93 in Pennsylvania. But 
all of that changed after September 11. We started treating the 
enemy as the terrorists that they are. Now some here are trying 
to go back by treating these terrorists like criminals. Once 
again, we seem to be in denial that we are, in fact, at war. We 
cannot deal with this enemy with criminal law. We need to use 
all the tools available to us. I think the President set up a 
commission to deal with these enemy combatants the way they 
should be dealt with. I know that Senator Levin made the 
comment that we are not going to go back to exactly as that 
was. The Supreme Court isn't going to let us do that. But, 
nonetheless, the commission did set these things up, and I 
think that's the way that should have been dealt with. The 
Supreme Court doesn't agree, and the system in its entirety. 
However, the Supreme Court left the details up to us.
    Now, I don't very often disagree, Mr. Chairman, with you, 
but I don't believe we need to have a lot of hearings and spend 
a lot of time on this and end up in major legislation. I 
believe we need to take the commission set up by the President 
and add the protections that may be needed to get on with the 
trials. Instead, we seem to be trying to make an argument to 
take the UCMJ, the same system used by our soldiers, take away 
a few rights, and use it. But that's not going to work. 
Criminal law doesn't belong in this debate. These are not 
criminals; they're terrorists. Should they have the same rights 
as citizens? You look at these rights that we have discussed 
last week in terms of access to classified evidence, attorney-
client privileges, Miranda rights, a chain of custody, right to 
counsel, we're dealing with terrorists, now. I think of the 
troop in the field. Sometimes he's faced with two decisions: 
pull the trigger and kill somebody or try to capture someone. 
Now, could it be another decision as to whether or not they're 
going to be having to read them their rights?
    I would remind my colleagues that our troops are fighters, 
and they're not attorneys. I bet they're wondering what we're 
doing here today.
    If you look closely at the panel before us today, you'd 
think that this is about human rights and torture. Now, that 
bothers me more than anything else. The Hamdan case was not 
about torture, it was not about human rights, it did not 
complain that we denied human rights. This hearing should be 
about a process and procedure by which we try certain 
detainees. Just as important, it should be about making sure 
some of these people do not return to this battlefield or any 
future battlefield. Look what happened at Guantanamo. In 
Guantanamo, we caved in to pressure by some of the same people 
that are causing these hearings today, and we released 
detainees, only to find them again on the battlefield. At least 
10 detainees we have documented that were released in 
Guantanamo after U.S. officials concluded that they posed no 
real threat, or no significant threat, have been recaptured or 
killed by fighting the U.S. and coalition forces, mostly in 
Afghanistan. Now, you have to say, if we know of 10 of them, 
how many more are out there?
    So, Mr. Chairman, these are not soldiers fighting for a 
country. They don't deserve that status. What we are doing here 
today seems to be trying to give them that status, to this one 
Senator.
    Let's remember, we're at war, and we're fighting 
terrorists. They don't deserve the same rights as lawful 
soldiers. We don't need to overly complicate this thing, Mr. 
Chairman. Let's take the current system of commissions set up 
by the President, add a few protections to address the problems 
identified by the United States Supreme Court, and proceed on 
with defending America.
    I appreciate very much your giving me this opportunity.
    Chairman Warner. Thank you very much, Senator Inhofe.
    Are there other Senators present that would like to make 
some opening comments?
    Senator McCain?
    Senator McCain. No, sir.
    Chairman Warner. Senator Dayton? Senator Graham? Senator 
Thune? [No response.]
    Very well.
    We are pleased, now, to receive the testimony of our 
distinguished panel of witnesses, and we'll start with Ms. 
Massimino, Washington Director of Human Rights First.

 STATEMENT OF ELISA C. MASSIMINO, DIRECTOR, WASHINGTON OFFICE, 
                       HUMAN RIGHTS FIRST

    Ms. Massimino. Thank you, Mr. Chairman.
    I have a longer statement that I'd like to submit for the 
record, if I could.
    Chairman Warner. Yes. I wish to advise all witnesses that 
their entire prepared statement shall be made a part of today's 
record. I think it would be wise if you selectively pick those 
parts that you feel should be highlighted.
    Thank you.
    Ms. Massimino. Thank you.
    Thank you, Mr. Chairman, so much for your leadership on 
this issue and so many important issues facing the country. We 
very much appreciate the opportunity.
    Chairman Warner. We have an unusual sound system in here. 
In my numerous years here, I've seen it go through a lot of 
iterations. We have a new one, and it requires being about 6 
inches from the microphone and speaking directly into it. We 
have a lot of people here today who are quite anxious to hear 
your testimony.
    Ms. Massimino. Thank you, Mr. Chairman. Is that better? Can 
you hear?
    Chairman Warner. That is better.
    Ms. Massimino. Thank you very much.
    Thank you, to all the members of the committee. We have 
very much appreciated the opportunity to work with many of you 
on these important issues related to detainee treatment and 
trial. We very much appreciate the committee's deliberate and 
careful approach to these difficult subjects.
    We also share the committee's goal of identifying a system 
capable of bringing those who have committed war crimes to 
justice in a manner that's fair, consistent with our values, 
and satisfies the requirements of domestic and international 
law.
    From the time that the President issued the military order, 
on November 13, 2001, authorizing trials by military 
commission, Human Rights First has focused particular attention 
on the development and operation of the system that proceeded 
from that order. We submitted formal comments on the subsequent 
military orders and instructions which make up the frequently 
changing rules under which the commissions operated. We 
published reports detailing the ongoing flaws in the commission 
system. We regularly monitored and reported on commission 
proceedings down at Guantanamo. We also filed friend-of-the-
court briefs in the Hamdan case in the Supreme Court and in the 
Court of Appeals for the District of Columbia Circuit.
    As we detailed in our recent report, Trials Under Military 
Order, we believe the commission system that was struck down by 
the Supreme Court failed to meet basic fair-trial standards. 
Our concerns about the commissions fell into five broad 
categories: overly broad jurisdiction, disincentives for 
civilian participation, secret evidence and secret trial 
proceedings, admissibility of evidence obtained through torture 
or other coercion, and lack of an independent appeal outside 
the chain of command. But an even more powerful indictment of 
the commission system than the rules and procedures that 
governed its operation is the way the ad hoc and constantly 
changing system looked, up close, in practice. From our vantage 
point as observers, one only needs to read some of the hearing 
transcripts from the commission proceedings to see these trials 
were not worthy of bearing the label ``Made in America.'' While 
the system was staffed by many talented and honorable service 
personnel, it is abundantly clear from this commission 
experience why Common Article 3 of the Geneva Conventions 
requires, as a prerequisite for passing sentences and carrying 
out executions, trials by regularly constituted courts. The 
system in operation at Guantanamo did not come close to passing 
that test.
    The challenge you now face is to look forward and develop a 
system for trying these cases. I'm not going to take more time 
today to critique the deficiencies of the failed military 
commission system. That system is so inherently flawed that we 
believe it should be set aside in its entirety.
    The Hamdan decision presents you and the President with an 
important opportunity to turn the page and to take up, with 
renewed energy and improved tools, the critical task of trying 
those who have committed war crimes against the United States.
    In order to meet that challenge and to avoid another round 
of litigation that would further delay the pursuit of justice, 
it's important to understand what the Supreme Court ruling in 
Hamdan requires.
    Of course, as a preliminary matter, and the reason why 
we're here today, any future tribunals must be authorized by 
Congress and not simply decreed by the executive. Whether the 
tribunals end up being general courts-martial, some modified 
version of that, or properly constituted military commissions, 
they must derive their authority from the legislative powers of 
Congress.
    Most importantly, any tribunal so authorized must provide 
for a fair process consistent with the requirements of Common 
Article 3 of the Geneva Conventions. Common Article 3 requires 
that those tried under the laws of war must not be sentenced or 
executed without ``previous judgment pronounced by a regularly 
constituted court affording all the judicial guarantees which 
are recognized as indispensable by civilized peoples.''
    Now, what are those judicial guarantees? As the majority 
opinion in Hamdan pointed out, ``Common Article 3 obviously 
tolerates a great deal of flexibility in trying individuals 
captured during armed conflict. Its requirements are general 
ones crafted to accommodate a wide variety of legal systems, 
but requirements, they are, nonetheless.''
    While Common Article 3 does not enumerate these judicial 
guarantees, we know what they are. They have been a fundamental 
part of our democratic system, and they're present in any 
tribunal fairly constituted under our laws. They're reflected 
in our constitution and in the treaties that the United States 
has signed and ratified. They are the essence of the rule of 
law.
    They can be boiled down, I think, to five basic principles:
    First, trials have to be conducted by an independent and 
impartial court applying laws in existence at the time of the 
offense. This, I think, is one of the primary arguments for 
beginning and sticking very closely to the UCMJ, an existing 
body of law. This also means that we can't have rules 
permitting one person or branch of government to be the judge, 
jury, and prosecutor, and that there must be meaningful 
independent judicial review of convictions. It also means that 
if a person is prosecuted under the laws of war, the offense 
with which he's charged must be cognizable under that body of 
law.
    Second, defendants must be presumed innocent prior to 
trial. In our system, that means more than just uttering the 
phrase ``innocent until proven guilty.'' The presumption has to 
be reflected in both the structure and the rules of any 
tribunal. If we seek to construct a system that will guarantee 
convictions in all cases, which some seem to have suggested we 
should do, that system will fall far short of fair-trial 
requirements, and it will fail to deliver justice.
    Third, defendants must have the right to be present at 
trial. This means proceedings cannot be conducted in secret, 
outside the presence of an accused or his lawyers.
    Fourth, a defendant must have the right to know the 
evidence being used against him, to respond to it, and to 
challenge its credibility or authenticity.
    Fifth, testimony cannot be compelled either from the 
defendant or from other witnesses. This means not only that a 
person cannot be forced to testify, but that information or 
witness statements obtained through torture, cruelty, or other 
coercion cannot be used as evidence.
    By reaffirming the applicability of Common Article 3 to the 
war with al Qaeda, the Supreme Court ruling in Hamdan also 
requires that detainees be treated humanely. This is consistent 
with, and reinforces, the law that you passed last year banning 
cruel, inhuman, or degrading treatment of any detainee in U.S. 
custody, regardless of their location or legal status under the 
Geneva Conventions. It vindicates the views, which you heard 
reiterated at the hearing last week, of the top military 
lawyers who had argued repeatedly for the continued embrace of 
that standard, but were overruled by the civilian leadership.
    So, as you consider the way forward, in a nutshell, our 
recommendation is: start with the UCMJ, and end up as close to 
it as possible. The Supreme Court made it very clear that the 
burden is on the President, and those who would deviate from 
the UCMJ and the Manual for Courts-Martial, to demonstrate why 
it is impractical to adhere to that system. Thus far, those 
arguments have consisted mostly of fears about disclosure of 
classified evidence and the absurdity of having to read Miranda 
warnings to enemies captured on the battlefield. I know some of 
my colleagues on the panel will address those issues in detail, 
but I would say that few, if any, of those concerns expressed 
so far withstand scrutiny, and most of them reflect an 
incomplete understanding of the flexibility of the courts-
martial system for dealing with those issues.
    We would strongly urge that Congress not embark on a 
project to deviate from the UCMJ without clear evidence of real 
obstacles to prosecutions. Any such deviations must be in 
keeping with Common Article 3. The core feature of such a 
court, of course, is that it contemplates the possibility that 
persons tried before it may be acquitted. As you pointed out, 
Mr. Chairman, that does not mean that they would be released. 
But, if we seek to design a system that will ensure convictions 
in every case, it will likely be repudiated by the Supreme 
Court as inadequate.
    Adopting the UCMJ as the starting framework for trials of 
detainees charged with war crimes makes the most sense from an 
efficient prosecutorial perspective, as well as from an 
international human rights standpoint. Courts-martial offer a 
fixed legal system that assures the trial's participants of a 
high degree of predictability and stability. These are 
hallmarks of the rule of law.
    One factor in the fits and starts of the commissions at 
Guantanamo that we observed was the lack of clarity regarding 
what constituted commission law. The absence of time-tested and 
court-adjudicated rules there resulted in continual delays. 
Indeed, during our first mission to Guantanamo to monitor 
military commissions, a number of commission staff shared that 
view with us. One of them said, ``It would have been better to 
try these guys in courts-martial. We know that now.''
    Congress can vitiate the perception in much of the rest of 
the world that the trials of detainees are rigged, and that the 
United States is willing to deviate from fair-trial 
requirements to convict those it has already concluded are 
guilty, by embracing our established military justice system, 
which provides full and fair-trial rights to an accused. 
Likewise, applying the UCMJ as the framework would help the 
United States regain its leadership mantle in advancing the 
rule of law in fragile democracies abroad, an unfortunate 
casualty of the detention and trial policies at Guantanamo.
    Our courts-martial system is one that our uniformed men and 
women, and all Americans, are rightly proud of. It's the envy 
of every military in the world. Some have argued that 
terrorists are not deserving of such a highly developed justice 
system. But we should not shrink from applying the law to those 
who violate it. By prosecuting those who have committed war 
crimes within a legal system that provides fundamental 
protections, we bolster the laws governing armed conflict and 
human rights.
    The hallmark of the rule of law as applied by civilized 
nations is a system that is impartial, that is made up of 
procedures and rules that are consistent, predictable, and 
transparent. As Senator McCain put it last year in the context 
of detainee treatment, ``It's not about them. It's about us.'' 
How we treat suspected terrorists, including how we try them, 
speaks volumes about who we are as a Nation and about our 
confidence in the institutions and values that set us apart.
    Some see this as a liability. They argue that adhering to 
these rules makes for an unfair fight, us with one hand tied 
behind our backs while the enemy does what it pleases. But that 
is because we are different from our enemy, and we must remain 
so. We do not employ their tactics, and we adamantly reject 
their goal, which is, as Will Taft, the former legal advisor to 
the State Department, described it as a ``negation of law.''
    There is no question that we have a long haul ahead of us 
in combating the threat of terrorism. But adherence to the rule 
of law in a system that reflects our values will only add to 
our strength, not detract from it.
    At least among military lawyers, there seems to be a strong 
consensus that the starting point for these trials should be 
the UCMJ. Much of the debate, going forward, therefore, will 
revolve around what, if any, deviations from the courts-martial 
procedures Congress should embrace. On this point, I want to 
sound a note of caution. There is a risk that some of the same 
mistakes made by the executive branch in turning away from the 
UCMJ framework in the first place could be repeated in this 
legislative process. Before rushing to amend the UCMJ 
procedures, Congress should satisfy itself that the amendments 
being sought are necessary, not just convenient or expedient, 
and do not undermine basic principles of fair trials. This will 
require much more discussion and debate than has been had so 
far.
    We urge this committee to convene a third hearing to 
examine in detail the arguments and justification from the 
administration for proposals that would constrict the judicial 
and due-process guarantees included in the UCMJ and the Manual 
for Courts-Martial.
    If there's any lesson we should have learned over the past 
4 years, it is that obtaining information through the use of 
force, coercion, and torture is not only unnecessary, but 
counterproductive. To enforce that legal prohibition, we must 
draw a bright line against the introduction of evidence 
obtained through unlawful coercion.
    In the hearing last week, we have heard a lot of concern 
from the administration and from some Members of Congress about 
the impact of the Supreme Court's decision on detainee 
treatment. In particular, about how the ``vague'' requirements 
of Common Article 3 concerning cruelty, inhumane treatment, 
humiliation, and degradation may put American personnel at risk 
of prosecution for war crimes. But these concerns seem not to 
have resonated with the military lawyers heard by this 
committee last week. To a person, as I heard it, they agreed, 
quite easily, that the requirements of Common Article 3 are 
well-known and well-understood by all military personnel.
    Some have argued that we should not afford Common Article 3 
protections to suspected terrorists because they have no 
respect for the rule of law. But the costs of such an approach 
have come into sharp relief over the last several years--a 
breakdown in discipline in the military, loss of moral 
authority and the ability to lead, and further endangerment of 
our own personnel deployed abroad. Once we start chipping away 
at the Geneva Conventions, we invite others to do the same. As 
Senator McCain reminded us, there will be more wars, and there 
will be Americans who will be taken captive. If we start to 
carve out exceptions to treaties to which we are signatories, 
then it will make it very easy for our enemies to do the same 
in the case of American prisoners. Congress should consider 
very carefully the actions it takes now and ensure that they do 
not lead to a day when one of our enemies uses our positions on 
the Geneva Conventions to argue that it's permissible to 
subject a U.S. servicemember to mock drowning.
    One of the most striking things about the committee's 
hearing on these issues last week was the absence of any 
controversy about the appropriateness of Common Article 3 as 
the baseline standard for humane treatment. This simply is not 
in contention, as far as I can see. The recent memo from Deputy 
Secretary Gordon England which directed a review of all the 
defense policies to ensure compliance with Common Article 3 
reinforces this point.
    Further evidence that there's been a return to Common 
Article 3 as the controlling standard can be found in the new 
draft Counterinsurgency Manual. This manual reflects the wisdom 
and the experience of the U.S. military in its operations in 
Afghanistan and Iraq. It embraces established international 
legal standards, and was signed by Lieutenant General David 
Petraeus, of the U.S. Army, and Lieutenant General James 
Mattis, of the U.S. Marines, last month. That guidance is clear 
in its application of Common Article 3 to the most 
unconventional of battle scenarios and enemies, ``The Geneva 
Conventions, as well as the convention against torture and 
other cruel, inhuman, and degrading treatment or punishment, 
agree on what is unacceptable for interrogation. Torture and 
cruel, inhumane, and degrading treatment is never a morally 
permissible option, even in situations where lives depend on 
gaining information. No exceptional circumstances permit the 
use of torture or other cruel, inhuman, or degrading 
treatment.'' That's from the current draft Counterinsurgency 
Manual from last month. It lays out the full text of Common 
Article 3 and says these requirements are specifically intended 
to apply to internal armed conflict.
    We continue to await the revised Manual on Intelligence 
Interrogations which, under the McCain amendment, will govern 
all military interrogations. We urge this committee to remain 
engaged in the development of that manual and of other legal 
and operational guidance.
    Yesterday, Attorney General Gonzales testified that he was 
unaware of any revised guidance for nonmilitary personnel to 
ensure compliance with the Detainee Treatment Act's (DTA) 
interrogation provisions. We urge Congress to closely monitor 
compliance with the law, not only by the military, but also by 
other Government agencies involved in interrogation and 
detention of prisoners. When military and nonmilitary personnel 
participate in joint operations, a situation which is 
increasingly common in the current conflict, it is critical 
that a single lawful standard of conduct with respect to 
detainee treatment governs the actions of all U.S. personnel.
    In conclusion, the Supreme Court's decision in the Hamdan 
case presents an opportunity not only for Congress, but for the 
country. We have struggled for nearly 5 years to reconcile our 
most deeply held values and democratic institutions with an 
effective strategy to combat the ongoing threat of terrorism. 
Military commissions have been a part of that struggle. Now the 
Supreme Court has reminded us that even in the face of 
extraordinary threats to our security, we should see these 
values and institutions not as liabilities, but as assets and 
tools in the struggle to combat terrorism. These values and 
institutions in particular here, the UCMJ and the Geneva 
Conventions, should again become the lodestar.
    As you focus, in the near-term, on the appropriate military 
justice system to try suspected terrorists, I would also urge 
the committee to remember that in addition to a military 
justice system that is the envy of the world, our existing 
system of civilian courts has proven quite adept at delivering 
justice to those who would engage in terrorism here.
    Thank you.
    [The prepared statement of Ms. Massimino follows:]

                 Prepared Statement by Elisa Massimino

                              introduction

    Thank you, Chairman Warner and members of the committee, for 
inviting me to share the views of Human Rights First on these important 
issues. We are very grateful for your leadership, Mr. Chairman, and we 
have appreciated the opportunity to work with your office, with Senator 
McCain, and with other members of the committee on these and other 
issues related to the treatment of detainees. We appreciate also the 
committee's careful and deliberate approach to these difficult 
subjects. We share the committee's goal of identifying a system capable 
of bringing those who have committed war crimes to justice in a manner 
that is fair, consistent with our values, and satisfies the 
requirements of domestic and international law.
    My name is Elisa Massimino, and I am Washington Director of Human 
Rights First. For the past quarter century, Human Rights First has 
worked in the United States and abroad to create a secure and humane 
world by advancing justice, human dignity and respect for the rule of 
law. We support human rights activists who fight for basic freedoms and 
peaceful change at the local level; protect refugees in flight from 
persecution and repression; help build a strong international system of 
justice and accountability; and work to ensure that human rights laws 
and principles are enforced in the United States and abroad.
    Since the President issued the Military Order on November 13, 2001, 
authorizing trials by military commission,\1\ Human Rights First has 
focused particular attention on the development and operation of the 
system that proceeded from that order. We submitted formal comments on 
the subsequent military orders and instructions that made up the 
frequently changing rules under which the commissions operated, 
published reports detailing the ongoing flaws in the commission system, 
and regularly monitored and reported on commission proceedings in 
Guantanamo. We also filed friend of the court briefs in Hamdan v. 
Rumsfeld in the United States Court of Appeals for the District of 
Columbia Circuit and in the Supreme Court of the United States.
---------------------------------------------------------------------------
    \1\ Detention, Treatment, and Trial of Certain Non-Citizens in the 
War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001).
---------------------------------------------------------------------------
    In our recent report entitled Trials Under Military Order,\2\ we 
outlined the ways in which the commissions failed to meet basic fair 
trial standards. Our concerns about the commissions fell into five 
broad categories: overly broad jurisdiction; disincentives for civilian 
participation; secret evidence and secret trial proceedings; 
admissibility of evidence obtained through torture or other coercion; 
and, lack of an independent appeal outside the chain of military 
command. But an even more powerful indictment of the commission system 
than the rules and procedures that governed its operation is the way 
the ad hoc and constantly-changing system looked up close, in practice. 
From our vantage point as observers--and one only needs to read some of 
the hearing transcripts from the commission proceedings to confirm 
this--these were trials unworthy of bearing the label ``Made in 
America.'' While the system was staffed by many talented, dedicated and 
honorable service personnel, it is abundantly clear from this 
commission experience why Common Article 3 of the Geneva Conventions 
requires, as a prerequisite for passing sentences and carrying out 
executions, trials by a ``regularly constituted court.'' The system in 
operation at Guantanamo did not come close to passing that test.
---------------------------------------------------------------------------
    \2\  Human Rights First, Trials Under Military Order, (2006) 
available at http://www.humanrightsfirst.org/us--law/PDF/detainees/
trials--under--order0604.pdf.
---------------------------------------------------------------------------
    The challenge you now face is to look forward and develop a fair 
and appropriate system for trying these cases. I am not going to take 
time today to further critique the deficiencies of the failed military 
commission system. That system is so inherently flawed that we believe 
it should be set aside in its entirety. The Hamdan decision presents 
Congress and the President with an important opportunity to turn the 
page and to take up--with renewed energy and improved tools--the 
critical task of trying those who have committed war crimes against the 
United States.
                   i. what the hamdan ruling requires
    In order to meet this challenge and to avoid further litigation, it 
is important to recognize what the Supreme Court ruling in Hamdan 
requires. As a preliminary matter, it is now clear that any future 
tribunals must be authorized by Congress, not simply decreed by the 
Executive. Whether these tribunals end up being general courts-martial, 
which Congress has already authorized, some modified version of courts-
martial, or properly constituted military commissions, they must derive 
their authority from the legislative powers of Congress.
    The tribunals must provide for a fair process, consistent with the 
requirements of Common Article 3 of the Geneva Conventions. Common 
Article 3 requires that those tried under the laws of war must be 
sentenced or executed pursuant to a ``previous judgment pronounced by a 
regularly constituted court affording all the judicial guarantees which 
are recognized as indispensable by civilized peoples.'' \3\
---------------------------------------------------------------------------
    \3\ See Geneva Convention for the Amelioration of the Condition of 
the Wounded and the Sick in Armed Forces in the Field, Aug. 12, 1949, 
entered into force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 31, 
available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/fe20c3d903ce27e3c125641e004a92f3; 
Geneva Convention for the Amelioration of the Condition of Wounded, 
Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 
entered into force Oct. 21, 1950, 6 U.S.T. 3217, 75 U.N.T.S. 85, 
available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/44072487ec4c2131c125641e004a9977; 
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 
12, 1949, entered into force Oct. 21, 1950. 6 U.S.T. 3316, 75 U.N.T.S. 
135, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68; 
Geneva Convention Relative to the Protection of Civilian Persons in 
Times of War, Aug. 12, 1949, entered into force Oct. 21, 1950, 6 U.S.T. 
3516, 75 U.N.T.S. 287, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5.
---------------------------------------------------------------------------
    What are these judicial guarantees? As the majority opinion in 
Hamdan pointed out, ``Common Article 3 obviously tolerates a great 
degree of flexibility in trying individuals captured during armed 
conflict; its requirements are general ones, crafted to accommodate a 
wide variety of legal systems. But requirements they are nonetheless.'' 
\4\ While Common Article 3 does not enumerate explicitly these judicial 
guarantees, they are a fundamental part of our democratic system and 
are present in any tribunal fairly constituted under our laws. These 
judicial guarantees are reflected in our own Constitution and in 
treaties signed and ratified by the United States, including the Geneva 
Conventions, the International Covenant on Civil and Political Rights, 
and the Protocols to the Geneva Conventions, which the United States 
negotiated and signed.
---------------------------------------------------------------------------
    \4\ Hamdan v. Rumsfeld, 548 U.S.--(2006) (slip op. at 72).
---------------------------------------------------------------------------
    They are the essence of the rule of law, and they can be boiled 
down to five basic principles:

         First, trials must be conducted by an independent and 
        impartial court applying laws in existence at the time of the 
        offense. This means that we cannot have rules permitting one 
        person or branch of government to be the judge, jury and 
        prosecutor, and that there must be meaningful, independent 
        judicial review of convictions. It also means that, if a person 
        is prosecuted under the laws of war, the offense with which he 
        is charged must be cognizable under that body of law.
         Second, defendants must be presumed innocent prior to 
        trial. In our system, that means more than just uttering the 
        phrase ``innocent until proven guilty.'' The presumption must 
        be reflected in both the structure and the rules of any 
        tribunal. If we seek to construct a system that will guarantee 
        convictions in all cases, which some seem to have suggested we 
        should do, that system will fall short of fair trial 
        requirements and will fail to deliver justice.
         Third, defendants must have the right to be present at 
        trial. This means proceedings cannot be conducted in secret 
        outside the presence of an accused or of his lawyers.
         Fourth, a defendant must have the right to know the 
        evidence being used against him, to respond to it, and to 
        challenge its credibility or authenticity.
         Fifth, testimony cannot be compelled either from a 
        defendant or from other witnesses. This means not only that a 
        person cannot be forced to testify, but also that information 
        or witness statements obtained through torture, cruelty or 
        other coercion cannot be used as evidence.

    By reaffirming the applicability of Common Article 3 to the 
conflict with al Qaeda, the Supreme Court ruling in Hamdan also 
requires that detainees be treated humanely. This is consistent with 
and reinforces the law Congress passed last year banning cruel, inhuman 
or degrading treatment of any detainee in U.S. custody, regardless of 
their location or legal status under the Geneva Conventions. It 
vindicates the views of the top military lawyers, reiterated here last 
week, for the continued embrace of this standard.
                           ii. a way forward
A. Start with the Uniform Code of Military Justice (UCMJ)
    The Supreme Court made clear that the burden is on the President 
and those who advocate deviating from the UCMJ and Manual for Courts-
Martial to demonstrate why it is impracticable to adhere to this 
system. Thus far, some administration officials have raised a litany of 
fears about following these procedures, including absurd assertions 
about the need to read Miranda warnings to enemies captured on the 
battlefield. In general, these concerns reflect an incomplete or 
inaccurate understanding of the flexibility of the court martial system 
for dealing with these issues. We strongly urge that Congress not 
embark on a project to deviate from the UCMJ without clear evidence of 
real obstacles to prosecutions; any such deviations must be in keeping 
with Common Article 3. The core feature of such a court, of course, is 
that it assumes the possibility that persons tried before it may be 
acquitted. If the system is designed to ensure convictions in every 
case, it will almost certainly be repudiated by the Supreme Court.
    The UCMJ, together with the Manual for Courts-Martial, incorporates 
these fundamental trial rights. The UCMJ has been in effect since the 
Korean War. It includes a body of law that addresses both basic fair 
trial standards and national security concerns. But the understanding 
that courts-martial are an appropriate forum for trying those who 
violate the laws of war dates even farther back, to the Nation's 
founding. Congress first authorized courts-martial to try spies in 
1776, predating the Constitution by more than a decade. General courts-
martial were granted jurisdiction over all customary law of war 
violations in a 1913 amendment to the Articles of War. This language 
was subsequently reenacted in current UCMJ Article 18.\5\
---------------------------------------------------------------------------
    \5\ 10 U.S.C. Sec. 818.
---------------------------------------------------------------------------
    Adopting the UCMJ as the starting framework for trials of detainees 
charged with war crimes makes the most sense both to carry out 
efficient prosecutions and to meet this country's human rights 
obligations. Courts-martial offer a fixed legal system that assures the 
trials' participants--judge, prosecutor and defense counsel--of a high 
degree of predictability and stability. One of the major deficiencies 
with the military commissions at Guantanamo was the lack of clarity as 
to what constituted ``commission law.'' The absence of time-tested and 
court-adjudicated rules and procedures resulted in continual delays. 
Indeed, during Human Rights First's repeated visits to Guantanamo to 
monitor military commissions, a number of commissions staff shared 
these views, saying that ``it would have been better to try these guys 
in courts-martial. We know it.''
    General courts-martial, by comparison, clearly meet the fundamental 
requirements of Common Article 3. They are the mechanisms for trying 
U.S. soldiers and are effectively sanctioned by the Geneva 
Conventions.\6\
---------------------------------------------------------------------------
    \6\ Geneva Convention Relative to the Treatment of Prisoners of 
War, Aug. 12, 1949, entered into force Oct. 21, 1950. 6 U.S.T. 3316, 75 
U.N.T.S. 135, art. 102, available at http://www.icrc.org/ihl.nsf/
7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68.
---------------------------------------------------------------------------
    On a broader level, adopting the UCMJ as the framework would be an 
important step in regaining U.S. moral authority in the struggle 
against terrorism. It would reassure allies who have grown increasingly 
reluctant to cooperate in these prosecutions. Adopting this established 
system of laws and rules, consistent with fair trial standards, also 
will reduce the threat of subjecting Americans abroad to unfair trials, 
including our soldiers and sailors. The Geneva Conventions system 
depends on the reciprocal adherence to the treaties. When the United 
States rejects protections that should be afforded to anyone captured 
by a ``Detaining Power,'' it encourages other nations to do so as well, 
putting Americans in greater jeopardy, now and in the future. With 
troops in more than 100 countries, the U.S. military is the most 
forwardly deployed military in the world. No other nation's 
servicemembers have more to lose from a degradation of the Geneva 
Conventions.
    By placing the military commissions at Guantanamo Bay under the 
exclusive control of the executive branch, the United States provided a 
rationale for repressive governments to defend their rejection of 
independent courts. The United States has historically criticized these 
governments, especially when they convened politically motivated 
military tribunals, in places like Burma, Colombia, Peru, Egypt, and 
Turkey, contending that such tribunals reflected political rather than 
legal norms.\7\ The military commissions at Guantanamo have undermined 
U.S. diplomatic efforts to champion independent courts abroad.
---------------------------------------------------------------------------
    \7\ Harold Hongju Koh, The Case Against Military Commissions, 96 
AM. J. INT'L L. 337, 341 (2002).
---------------------------------------------------------------------------
    Some of these governments have explicitly cited the establishment 
of U.S. military commissions to justify their own legal and military 
policies that contravene human rights protections.\8\ Egyptian 
President Hosni Mubarak has said that the Guantanamo military 
commissions vindicated his choice of military tribunals to try domestic 
``terrorists.'' He emphasized that ``the events of September 11 created 
a new concept of democracy that differs from the concept that western 
States defended before these events, especially in regard to the 
freedom of the individual.'' \9\
---------------------------------------------------------------------------
    \8\ Lawyers Committee for Human Rights [now Human Rights First], 
Assessing the New Normal: Liberty and Security for the Post-September 
11 United States, 92-95 (2003) available at http://
www.humanrightsfirst.org/pubs/descriptions/Assessing/
AssessingtheNewNormal.pdf .
    \9\ Id. at 93 (quoting Joe Stork, The Human rights Crisis in the 
Middle East in the Aftermath of the September 11, Cairo Institute for 
Human Rights Studies 6).
---------------------------------------------------------------------------
    Our uniformed men and women are rightly proud of our courts-martial 
system; it is the envy of every military in the world. Some have argued 
that terrorists are not ``deserving'' of such a highly developed 
justice system. But we should not shrink from applying the law to those 
who violate it. Rather, by prosecuting those who have committed war 
crimes within a legal system that provides fundamental protections, we 
bolster the laws governing armed conflict and human rights.
    The hallmark of the rule of law as applied by civilized nations is 
a system that is impartial and that is made up of procedures and rules 
that are consistent, predictable and transparent. As Senator McCain put 
it last year in the context of detainee treatment, ``it's not about 
them, it's about us.'' \10\ How we treat suspected terrorists--
including how we try them--speaks volumes about who we are as a nation, 
and our confidence in the institutions and values that set us apart.
---------------------------------------------------------------------------
    \10\ ``CBS News' Face the Nation,'' Nov. 13, 2005 (transcripts of 
remarks by Senator John McCain (R-AZ)).
---------------------------------------------------------------------------
    Some administration officials argue that this approach is a 
liability. They say that adhering to these rules makes for an unfair 
fight--we fight with one hand tied behind our backs while the enemies 
do as they please. But that is because we are different from our 
enemies and we must remain so: we do not employ their tactics and we 
adamantly reject their goal, which is, as William Taft, the former 
Legal Advisor to the Department of State described it, the ``negation 
of law.'' \11\ There is no question that we have a long and difficult 
road ahead of us in combating the threat of terrorism. But adherence to 
the rule of law, a system that serves as a shining example to the rest 
of the world, a system that reflects our values, will only add to our 
strength, not detract from it.
---------------------------------------------------------------------------
    \11\ William H. Taft, The Law of Armed Conflict After 9/11: Some 
Salient Features, 28 YALE J. INT'L L. 319 (2003).
---------------------------------------------------------------------------
B. Carefully Evaluate Requested Deviations from the UCMJ
    Among military lawyers and others, there is a strong consensus that 
the starting point for any future trials should be the UCMJ. Much of 
the debate going forward should consider what deviations, if any, are 
needed from the courts-martial procedures.
    On this point, I would like to sound a note of caution. There is a 
risk that some of the same mistakes made by the executive branch in 
rejecting the UCMJ framework in the first place could be repeated in 
this legislative process. Before rushing to amend the UCMJ procedures, 
Congress should satisfy itself that the amendments being sought are 
necessary (not just convenient or expedient) and do not undermine basic 
principles of fair trials. This will require careful discussion and 
debate, including future hearings by this committee, to examine, in 
detail, the arguments and justification for any specific proposals that 
would constrict the judicial and due process guarantees included in the 
UCMJ and the Manual for Courts-Martial.
    I'd like to address several of these issues briefly.
    Conspiracy
    Under the original Military Commission Instruction No. 2, an 
accused could be prosecuted for conspiracy as a stand-alone and 
substantive offense.\12\ Seven Guantanamo detainees were, in fact, 
charged only with the crime of conspiracy.\13\ But conspiracy to commit 
a war crime is not a crime under international law. The Military 
Commission's formulation of conspiracy did not, in any event, reflect 
U.S. law. Congress should be wary about permitting prosecutions for 
conspiracy. The offense of conspiracy is not accepted around the 
world--civil law jurisdictions do not generally recognize it--and is 
not therefore a part of the laws of war. Conspiracy to commit war 
crimes is not included as an offense in the Geneva Conventions. It has 
been excluded by every tribunal properly constituted to try war crimes, 
including Nuremberg, the International Military Tribunal for the Far 
East (IMTFE), the International Criminal Tribunal for the Former 
Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda 
(ICTR), and the International Criminal Court (ICC) Statute. In the 
context of Nuremberg, then-U.S. Assistant Attorney General Herbert 
Wechsler explained that proof of the criminality of the defendants 
would be best accomplished ``only by proof of personal participation in 
specific crimes.''\14\ For a similar reason, David Scheffer, the chief 
U.S. negotiator on the ICC, said that ``in war something more is 
required than evidence that one might have agreed in some vague or 
ambiguous way, or inferentially by simply being in close proximity to 
the master planners and implementers, with a plan or design to violate 
the law of war.''\15\ Finally, conspiracy has been recognized as too 
broad a charge in times of war: unlike in peacetime, in a time of war, 
an offence of conspiring to commit a war crime may result in entire 
armies being brought before courts on the basis of ``guilt by 
associations.''\16\
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    \12\ Military Commission Instruction No. 2, 32 CFR Sec. 11.6(c)(6) 
(2005).
    \13\ The charge sheets are available at http://www.defenselink.mil/
news/Nov2004/charge--sheets.html.
    \14\ Herbert Wechsler, Memorandum for the Attorney General (Francis 
Biddle) from the Assistant Attorney General (Herbert Wechsler), in The 
American Road to Nuremberg: Documentary Record 1944-1945 (Bradley F. 
Smith ed., 1982) at 84, 89.
    \15\ David Scheffer, Why Hamdan is Right about Conspiracy 
Liability, Jurist, Mar. 2006, available at http://jurist.law.pitt.edu/
forumy/2006/03/why-hamdan-is-right-about-conspiracy.php.
    \16\ Cf. Scales v. United States, 367 U.S. 203, 209 (1961) (Court 
interpreted the Alien Registration Act of 1940 as requiring ``not only 
knowing membership [in Communist Party], but active and purposive 
membership, purposive that is as to the organization's criminal ends.'' 
(emphasis added)).
---------------------------------------------------------------------------
    This does not mean that those who assist those engaged in terrorist 
acts will escape prosecution. Under international law, prosecutors may 
charge an individual with the offense of aiding and abetting a war 
crime. So, for example, the ICTY and ICTR Statutes each provide that 
``[a] person who planned, instigated, ordered, committed or otherwise 
aided and abetted in the planning, preparation or execution of a crime 
referred to in Articles 2 to 4 [includes war crimes] of the present 
Statute, shall be individually responsible for the crime.''\17\ The ICC 
Statute contains a similar provision.\18\ In addition, a person may be 
found guilty of an underlying offense committed by others under the 
doctrine of joint criminal enterprise or common plan. Under the joint 
criminal enterprise theory, liability is imposed on an individual who 
(i) enters into an agreement with one or more others for the commission 
of a crime and (ii) takes criminal action in furtherance of that 
agreement.\19\ Either of these approaches would comport with the laws 
of war and fair trial standards. Finally, if an individual cannot be 
prosecuted under the laws of war, prosecution is available under the 
civilian system for a plethora of crimes. Congress should hear from 
experts on these offenses and theories of liability before legislating 
new offenses that may not comport with the laws of war.
---------------------------------------------------------------------------
    \17\ Statute of the International Tribunal for the Prosecution of 
Persons Responsible for Serious Violations of International 
Humanitarian Law Committed in the Territory of the Former Yugoslavia 
since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 
(1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 
(1993), Art. 7; Statute of the International Tribunal for Rwanda, 
adopted by S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. 
Doc. S/RES/955 (1994), 33 I.L.M. 1598, 1600 (1994), Art. 6.
    \18\ Rome Statute of the International Criminal Court, U.N. Doc. A/
CONF.183/9*, entered into force 1 July 2002, Art. 25(d). Article 25(d) 
imposes liability if, inter alia, an individual[i]n any other way 
contributes to the commission or attempted commission of [a crime] by a 
group of persons acting with a common purpose. Such contribution shall 
be intentional and shall either: (i) be made with the aim of furthering 
the criminal activity or criminal purpose of the group, where such 
activity or purpose involves the commission of a crime within the 
jurisdiction of the Court; or (ii) be made in the knowledge of the 
intention of the group to commit the crime.''
    \19\ The ICTY distinguishes between conspiracy and joint criminal 
enterprise. See e.g., Prosecutor v. Milutinovic, Decision on Dragoljub 
Ojdanic's Motion Challenging Jurisdiction--Joint Criminal Enterprise, 
Case No. IT-99-37-AR72 (May 21, 2003) at para. 23, available at http://
www.un.org/icty/milutinovic/appeal/decision-e/030521.pdf (``Joint 
criminal enterprise and ``conspiracy'' are two different forms of 
liability. Whilst conspiracy requires a showing that several 
individuals have agreed to commit a certain crime or set of crimes, a 
joint criminal enterprise requires, in addition to such a showing, that 
the parties to that agreement took action in furtherance of that 
agreement. In other words, while mere agreement is sufficient in the 
case of conspiracy, the liability of a member of a joint criminal 
enterprise will depend on the commission of criminal acts in 
furtherance of that enterprise.''); Prosecutor v. Stakic, Case No. IT-
97-24-T (July 31, 2003) at para. 433, available at http://www.un.org/
icty/stakic/trialc/judgement/stak-tj030731e.pdf (``joint criminal 
enterprise can not be viewed as membership in an organisation because 
this would constitute a new crime not foreseen under the Statute and 
therefore [would] amount to a flagrant infringement of the principle 
nullum crimen sine lege.'') The ICTY jurisprudence suggests that the 
joint criminal enterprise has a higher threshold than conspiracy in 
that it requires an additional proof that co-conspirators took action 
in furtherance of the conspiracy. However, in the United States, many 
state conspiracy statutes and the Federal conspiracy statute similarly 
require the commission of an overt act. It would seem that, at least as 
compared to those laws that require overt act, joint criminal 
enterprise and conspiracy provide the same basis of individual 
liability.
---------------------------------------------------------------------------
    Confrontation of evidence
    Secret trials are anathema to our system of laws. The original 
military commission regulations permitted trials to be closed based 
solely on the assertion of general national security reasons without 
any other standards or procedural protections.\20\ We recognize the 
importance of protecting especially sensitive information, disclosure 
of which would interfere with the military efforts or compromise 
sensitive, important intelligence sources and methods. But the Supreme 
Court has made clear that our Constitution requires that individuals 
not be deprived of life or liberty without an opportunity to confront 
the evidence against them and to be apprised of exculpatory evidence in 
the hands of the government.\21\ This should be our starting point. 
Then, in narrowly defined circumstances, with adequate procedural 
protections, truly sensitive evidence that the prosecution wants to 
introduce against a defendant could be kept secret from the public. But 
the rules need to reflect the fact that these are extraordinary 
measures, limited to cases involving highly sensitive information in 
which there would be significant, identifiable harm to military 
operations or secret intelligence sources or methods.
---------------------------------------------------------------------------
    \20\ Military Commission Order No. 1, 32 CFR Sec. 9.6 (b)(3); 
(d)(5)(B) (2003). The Order was revised on August 31, 2005 to preclude 
admission of evidence withheld from the accused if the Presiding 
Officer determines admission of such evidence would result in ``denial 
of a full and fair trial.'' Military Commission Order No. 1, 32 CFR 
Sec. 9.6(d)(5)(B) (2005).
    \21\ Jencks v. United States, 353 U.S. 657 (1957); Roviaro v. 
United States, 353 U.S. 53 (1957).
---------------------------------------------------------------------------
    The same fundamental considerations would apply to rules for 
discovery: start from the principle of the due process right to 
confront and question evidence, and provide delineated and narrowly 
defined exceptions that permit flexibility.
    No compelled testimony
    If there is any lesson we should have learned over the past 4 
years, it is that obtaining information through the use of force, 
coercion or intimidation, is not only unnecessary, but counter-
productive. To enforce legal prohibitions, we must draw a bright line 
against the introduction of any evidence obtained through unlawful 
coercion. In the last week, we have heard a great deal of concern from 
the administration and from some Members of Congress about the impact 
of the Supreme Court's Hamdan decision on detainee treatment, and in 
particular, about the ``vague requirements'' of Common Article 3 
prohibiting cruelty, inhuman treatment, humiliation and degradation. 
Some administration officials argue that this prohibition may put 
American personnel at risk of prosecution for war crimes. These 
concerns did not resonate with the military lawyers you heard last 
week. To a person, they agreed that the requirements of Common Article 
3 are well-known and well-understood by all military personnel, and 
should be followed.
    It is true, of course, that the administration had previously taken 
positions that blurred these rules and unfortunately resulted in 
confusion about what conduct was permissible.\22\ That effort to narrow 
the obligations to refrain from cruel, inhuman and degrading treatment 
was remedied in part through the Detainee Treatment Act. The 
appropriate response now to ensure clarity about Common Article 3's 
standards is to provide sufficient guidance--including in the 
operations and field manuals--to ensure that all service members steer 
completely clear of conduct that would place them at risk of 
prosecution.
---------------------------------------------------------------------------
    \22\ Memorandum for William J. Haynes II, General Counsel, 
Department of Defense from John Yoo, Deputy Assistant Attorney General 
and Robert J. Delahunty, Special Counsel, January 9, 2002.
---------------------------------------------------------------------------
    The same holds true for non-military personnel. In the words of 
General Rives who testified before this committee last week: ``Speaking 
to a lot of folks in the Intelligence Community and having read a fair 
amount about it, I don't believe they need to cross the lines into 
violations of the Detainee Treatment Act or Common Article 3 to 
effectively gather intelligence. Sometimes we will gather intelligence 
knowing that we're not going to be able to use that evidence against an 
individual in a criminal court, and that's okay. Sometimes you can't 
have your cake and eat it too.'' \23\
---------------------------------------------------------------------------
    \23\ Transcript of the Hearing of the Senate Committee on Armed 
Services: Military Commissions in Light of the Supreme Court Decision 
in Hamdan v. Rumsfeld, July 13, 2006, Federal News Service, p. 41.
---------------------------------------------------------------------------
    As one U.S. court noted, ``[i]t is not necessary that every aspect 
of what might comprise a standard such as `cruel, inhuman, or degrading 
treatment' be fully defined and universally agreed upon before a given 
action meriting the label is clearly proscribed under international 
law.'' \24\
---------------------------------------------------------------------------
    \24\ Xuncax v. Gamajo, 886 F. Supp. 162, 187 (D. Mass. 1995).
---------------------------------------------------------------------------
    Guidance on what constitutes treatment prohibited by Common Article 
3 can come from international tribunals, to which administration 
witnesses have referred as a source for guidance on procedure and 
rules. The ICTY, for example, has said that ``cruel treatment 
constitutes an intentional act or omission, that is, an act which, 
judged objectively, is deliberate and not accidental, which causes 
serious mental or physical suffering or injury or constitutes a serious 
attack on human dignity.'' \25\ The ICTY similarly held that an outrage 
upon personal dignity is an act that causes ``serious humiliation or 
degradation to the victim,'' \26\ and requires humiliation to be ``so 
intense that the reasonable person would be outraged.'' \27\ According 
to that international tribunal, a perpetrator must have acted (or 
failed to act) deliberately and must have been able to perceive his 
suffering to be the ``foreseeable and reasonable consequences of his 
actions.'' \28\ These formulations are very similar to the way in which 
offenses are defined under U.S. criminal law.
---------------------------------------------------------------------------
    \25\ Prosecutor v. Delalic, Case No. IT-96-21-T (Nov. 16, 1998) at 
para. 552, available at http://www.un.org/icty/celebici/trialc2/
judgement/cel-tj981116e.pdf.
    \26\ Prosecutor v. Aleksovski, Case No. IT-95-14/1-T (June 25, 
1999) at para. 56, available at http://www.un.org/icty/aleksovski/
trialc/judgement/ale-tj990625e.pdf; see also Prosecutor v. Kunarac, 
Case No. IT-96-23 T& IT-96-23/1 T (February 22, 2001) at para. 507, 
available at http://www.un.org/icty/kunarac/trialc2/judgement/kun-
tj010222e.pdf.
    \27\ Prosecutor v. Aleksovski, Case No. IT-95-14/1-T (June 25, 
1999) at para. 56.
    \28\ Prosecutor v. Aleksovski, id.
---------------------------------------------------------------------------
    Some administration officials continue to assert that the United 
States should not afford Common Article 3 protections to suspected 
terrorists because they have no respect for the rule of law. The costs 
of such an approach, however, have come into sharp relief over the last 
several years: a breakdown in discipline in the military, loss of moral 
authority and the ability to lead, and further endangerment of our own 
personnel deployed abroad. Once we start chipping away at the Geneva 
Conventions, we invite others to do the same. As Senator McCain 
remarked last week, ``[W]e will have more wars, and there will be 
Americans who will be taken captive. If we somehow carve out exceptions 
to treaties to which we are signatories, then it will make it very easy 
for our enemies to do the same in the case of American prisoners.'' 
Congress should consider carefully that the actions it takes now do not 
lead to a day when one of our enemies uses our positions on the Geneva 
Conventions to argue that it is permissible to subject a U.S. 
servicemember to mock drowning.
    We have already witnessed repressive regimes justifying abusive 
treatment of their nationals by reference to our Nation's conduct in 
the ``war on terror.'' We have already experienced the reluctance of 
our allies to cooperate with us in counterterrorism measures because of 
concern over our treatment of detainees. For example, Dutch and 
Canadian forces in Afghanistan agreed to turn over any captured persons 
to Afghanistan, but not to the United States, because of concerns over 
detainee treatment.\29\ The support of our allies is crucial to our 
ability to combat terrorist acts. The more we break away from the rule 
of law, including Common Article 3, the more we will stand alone. That 
we simply cannot afford.
---------------------------------------------------------------------------
    \29\ Michael Byers, Legal Opinion on the December 18, 2005 
Arrangement for the Transfer of Detainees between the Canadian Forces 
and the Ministry of Defence of the Islamic Republic of Afghanistan, 
April 7, 2006, available at www.polarisinstitute.org/pdf/Attaran--7--
April--2006.pdf.
---------------------------------------------------------------------------
C. Ensure Humane Treatment for All Detainees in U.S. Custody
    One of the most striking things about the committee's hearing on 
these issues last week was the absence of any controversy about the 
appropriateness of Common Article 3 as the baseline standard for all 
detainee treatment. This was evidenced by a recent memorandum of Deputy 
Secretary of Defense Gordon England directing a review of all policies 
and procedures to ensure compliance with Common Article 3.
    Another welcome development evidencing a return to Common Article 3 
as the controlling standard is the new draft counterinsurgency manual. 
This manual reflects the wisdom and experience of the U.S. military in 
its operations in Afghanistan and in Iraq. It embraces established 
international legal standards. Signed by Lieutenant General David 
Petraeus of the U.S. Army and Lieutenant General James Mattis of the 
U.S. Marines in June of this year, the new guidance is clear in its 
application of Common Article 3 to the most unconventional of battle 
scenarios and enemies:

          The Geneva Conventions as well as the Convention against 
        Torture and Other Cruel, Inhuman or Degrading Treatment or 
        Punishment agree on what is unacceptable for interrogation. 
        Torture and cruel, inhumane, and degrading treatment is never a 
        morally permissible option, even in situations where lives 
        depend on gaining information. No exceptional circumstances 
        permit the use of torture and other cruel, inhuman or degrading 
        treatment.

Counterinsurgency, FM 3-24, 7-42 (June 2006) (Final Draft).

    The counterinsurgency manual also lays out the full text of Common 
Article 3, stating that its provisions are ``specifically intended to 
apply to internal armed conflicts'' and that insurgents, while not 
qualifying as prisoners of war, must be ``accorded the minimum 
protections described in Common Article 3.'' \30\ The manual reflects 
the military's assessment that not only is the application of Common 
Article 3 necessary as a legal matter but that it is a workable 
standard that will inure to the safety and security of U.S. soldiers 
and to victory for U.S. interests.
---------------------------------------------------------------------------
    \30\ Counterinsurgency, FM 3-24, D-10, 11.(June 2006) (Final 
Draft).
---------------------------------------------------------------------------
    We continue to await the revised manual on intelligence 
interrogations. Under the McCain Amendment, it will govern all military 
interrogations. We urge this committee to remain closely engaged in the 
development of that manual and of other legal and operational guidance. 
Yesterday, Attorney General Gonzales testified that he was unaware of 
any revised guidance for non-military personnel to ensure compliance 
with the Detainee Treatment Act's interrogation provisions. We urge 
Congress to closely monitor compliance with the law not only as it 
applies to the military but also to the Central Intelligence Agency and 
other Government agencies involved in interrogation and detention of 
prisoners. When military and non-military personnel participate in 
joint operations, a situation which is increasingly the case today, it 
is critical that they follow a single, lawful standard of conduct with 
respect to detainee treatment.
                               conclusion
    The Supreme Court's decision in the Hamdan case presents an 
opportunity not only for Congress but for the country. We have 
struggled for nearly 5 years to reconcile our most deeply held values 
and democratic institutions with a strategy to combat ongoing threats 
to our national security. The military commissions at Guantanamo have 
been a part of our response. Now the Supreme Court has reminded us 
that, even in the face of extraordinary threats to our security, our 
traditional values and institutions should be seen not as liabilities, 
but as assets--tools in the struggle to combat terrorism. These values 
and institutions--in particular here, the UCMJ and the Geneva 
Conventions--should again become the lodestar.
    Finally, as you focus in the near term on the appropriate military 
justice mechanism to try those suspected of committing acts of 
terrorism, we should also remember that, in addition to a military 
justice system that is the envy of the world, our existing system of 
civilian courts has proven quite adept at delivering justice to those 
who would engage in acts of terrorist violence here.
    Thank you.

    Chairman Warner. That was a very important statement that 
you've given us. If you'll make copies of that available to us, 
we didn't get it prior to the hearing.
    At this time, I'd like to recognize our distinguished 
colleague from South Carolina, who is a colonel in the Reserve 
Judge Advocate General's Corps and whose wisdom and a little 
wit from time to time have been of great value to this 
committee, and he has taken the lead on this subject. I would 
like to recognize him for the purpose of asking his questions, 
given that he must preside over the United States Senate at 11 
o'clock.
    The distinguished Senator from South Carolina, Senator 
Graham.
    Senator Graham. Thank you, Mr. Chairman. That kind of 
introduction, the ``wisdom and wit'' meter is pretty low this 
morning, but I'll try to rise to the occasion.
    I appreciate that and I'm sorry to interrupt the opening 
statements.
    One thing I would like to talk about is, I think, as a 
body, we're going to work through a military commission model 
that we can be proud of that will hopefully use the UCMJ as a 
model, and there will be substantial deviations at times to 
meet the needs of the war on terror.
    My concern is how Common Article 3 applies to terrorist 
interrogations. I don't have a problem with teaching our 
military members to treat every detainee in terms of prisoner 
of war (POW) treatment standards, because that's easy for them 
to understand. But once we do the interrogation of a high-value 
target, I do have some concerns about how Common Article 3 
might apply.
    What is the norm? What is the norm, in the international 
community, in terms of, let's say, Great Britain, France, and 
Germany? Do they apply Common Article 3 interrogation standards 
to the interrogation of terrorist suspects? Does anyone know?
    Mr. Mernin. Senator, I don't know.
    Senator Graham. I think it would be important for the 
committee to understand what the norm is, because it's my 
understanding that Israel, France, Germany, and Great Britain, 
that when it comes to terrorist suspects being interrogated, 
they don't torture them, but Common Article 3 is not the test, 
either. So, I would like to know what the baseline, 
internationally, is.
    Now, when it comes to Senator Inhofe's concerns about us 
criminalizing the war, every war crime involves criminal 
activity. Is that correct? Does anyone disagree with that?
    Ms. Massimino. No, sir.
    Senator Graham. The criminal activity is a violation of the 
law of armed conflict, which in and of itself is a series of 
criminal laws, as well as treatment regimes, is that correct?
    Mr. Fidell. That's not necessarily correct, Senator. You 
could have a classic war, where there are acts of violence.
    Senator Graham. Right.
    Mr. Fidell. ``One breaks things and kills people.'' That's 
the difference between being a lawful combatant and an unlawful 
combatant.
    Senator Graham. Right.
    Mr. Fidell. So, if you had a lawful combatant, barring, 
``war crimes,'' a certain measure of violence, things that in 
normal society out on Constitution Avenue would be a crime, 
become lawful.
    Senator Graham. That's my point. War is inherently violent. 
It's the taking of life. We don't prosecute soldiers involved 
in war because they're fighting the enemy; we only prosecute 
solders in wars or illegal combatants when they violate the law 
of armed conflict. There's a lawful way to kill people, and 
there is an unlawful way to engage in military actions. One of 
those unlawful actions is to intentionally target and kill 
civilians. Military commissions come from the UCMJ, and it says 
they shall be governed by the law of armed conflict. So, I want 
the American public to know that probably 90 percent of the 
people who are enemy combatants will not be tried for war 
crimes. We do not want to confuse enemy combatants and war 
criminals. That is a huge problem that reoccurs over and over 
again. You can be an enemy combatant and not be a war criminal. 
A war crime is reserved for a very select class of people who 
have gone outside the norms of combat. In the case of 
Guantanamo Bay, I think there's less than 25 who are even 
subject to being tried for war crimes. But once you make that 
decision, does the panel agree, then it becomes criminal 
activity, that criminal law is applied--the criminal law of 
armed conflict?
    Mr. Fidell. Yes.
    Senator Graham. Yes.
    Mr. Fidell. Your question, Senator, is that you're dealing 
with unlawful combatants.
    Senator Graham. Right.
    Mr. Fidell. The answer is yes.
    Senator Graham. Okay. So, this idea that we're 
criminalizing the war is not true. What we're criminalizing, 
which has always been a crime, is the violation of law of armed 
conflict, and we're holding people accountable, and they can be 
put to death. Is it not true, in that setting, where a military 
commission is involved, that due process applies?
    Mr. Fidell. I certainly think so, yes.
    Senator Graham. Okay. That's what Hamdan is saying. So, we 
need to come up with due-process rights consistent with 
prosecuting criminal violations of the law of armed conflict. 
We're not talking about trying to criminalize the war. They're 
two different things.
    Now, when it comes to coercion, is it not true that al 
Qaeda is trained to allege coercion?
    Mr. Fidell. It's certainly been said. I can't testify from 
personal experience as to their training manual. But that's 
certainly been repeatedly reported.
    Senator Graham. Does anyone disagree with that? [No 
response.]
    Okay, it's a fact that our enemy is trained to allege 
violations of law. They are trained to allege coercion. So, 
would you agree with me that an accusation of coercion by a 
defendant in a military commission cannot bring the trial to a 
halt?
    Mr. Fidell. Senator, that would be one of the many issues 
that would come up. You might have an accused who would make an 
allegation like that, just as in any criminal court in this 
country, State or Federal. Somebody could come in and say, ``My 
rights were trampled on,'' and then you'd have a little Article 
39(a) session.
    Senator Graham. Right.
    Mr. Fidell. To use the court-martial terminology, you'd 
have a motions session, witnesses would be called, and the 
police or the interrogator would be called.
    Senator Graham. You would get to the bottom of the 
allegation, and you'd use some standard as to what would be 
unlawful coercion. War, by its nature, is coercive. But we're 
talking about coercive practices. It gets back to your 
statement. I don't want my country to benefit from coercive 
practice, from torture practices, but, by the same token, I 
don't want to let all of the evidence stop or being inquired 
into because someone alleges coercion. Under the DTA, we had a 
provision that said if an allegation of coercion is made 
regarding combat status, enemy combatant status, at the combat 
status review tribunal, it will be given appropriate probative 
value, it will be tested to see if it has any probative value. 
Does anyone disagree with that standard?
    Mr. Fidell. In the context of a Combatant Status Review 
Tribunal, that's a different kettle of fish; that's not a 
criminal proceeding, by any standard.
    Senator Graham. Right.
    Mr. Fidell. That is an administrative proceeding.
    Senator Graham. Do you agree there needs to be a balancing 
between the idea of a coercive environment and coercive 
practices?
    Mr. Fidell. Can you sharpen that question for me, Senator? 
I am struggling with it.
    Senator Graham. Basically the whole idea that you can't use 
anything that's coerced. We start with the idea of torture. 
That's what we all agree upon. No one should benefit from 
tortured statements, because they're not reliable. Cruel, 
inhumane treatment, that's something we don't want to benefit 
from. But the point I'm trying to make is, this Congress needs 
to come up with some standard that will allow evidence to come 
into a criminal proceeding that would be from a coercive 
environment, because war, in and of itself, is coercive.
    Mr. Fidell. I'm not sure I can connect the dots between the 
assertion that war itself is coercive, it's violent. Whether 
that violence turns into coercion within the legal meaning for 
example, as it's currently used in Article 31(d) of the UCMJ is 
another matter. Congress has already spoken that we don't want 
coerced testimony in a court-martial under the UCMJ. I can't 
imagine that Congress would take a different position in a 
military commission.
    Senator Graham. The problem is, sir, that we're getting 
people off battlefields from all over the world that will be in 
the hands of other countries. We need to understand that 
coercion in the war on terror, because of its international 
scope. We are not talking about our own troops in our own 
hands, we're talking about gathering information about alleged 
war criminals from a variety of sources. I guess what I'm 
suggesting to this committee and to this body is that we need 
to have a rather sophisticated view of what coercion is, taking 
off torture, taking off cruel, inhumane treatment, but 
understanding that some degree of flexibility needs to be had 
in the war on terror.
    I would like to establish what the norm is when it comes to 
terrorist suspects being interrogated by countries that we are 
friendly to, like Germany, France, Great Britain, Spain, and 
Israel. What kind of techniques do they use? Does it fall 
within Common Article 3? If it doesn't, why not? Why is it 
different? Is it something we should look at adopting?
    [The information referred to follows:]

    Other nations such as Great Britain, France, and Germany have not 
applied the standards of Common Article 3 because they have not 
detained terrorists in the context of an ``armed conflict'' triggering 
the treaty obligation. Conflicts not between states are covered by the 
laws of war to a lesser degree, as made more precise in the 1977 
Protocols. Thus, for example, the campaign in Northern Ireland was not 
armed conflict, even when carried out by British armed forces, given 
the IRA's lack of any territorial base on British territory.

    Senator Graham. So, this idea that Common Article 3 is the 
norm when it comes to establishing interrogation of terrorist 
suspects, I doubt if that is the case, in terms of the 
international community. I would like to know more about that, 
and if you could help us, we would appreciate it.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator Graham.
    As you can see from that colloquy, Senators have a number 
of questions they wish to ask. In order to accommodate two 
panels, I'm going to respectfully request of the witnesses, in 
their initial delivery, if they could put their opening 
statement into the confines of about 7 minutes. If you need to 
run over a minute or two, there's a reasonable generosity here 
in the chair, but that way we can move through this and allow 
Senators, many of whom have to come and go, to put the question 
to this important panel. Thank you very much.
    We'll now have Katherine Newell Bierman, Counterterrorism 
Counsel, U.S. Program, Human Rights Watch. We welcome you.

    STATEMENT OF KATHERINE NEWELL BIERMAN, COUNTERTERRORISM 
           COUNSEL, U.S. PROGRAM, HUMAN RIGHTS WATCH

    Ms. Bierman. Thank you, Mr. Chairman. I believe I can do 7 
minutes. I will refer to my written statement throughout, so 
you can see what I've written there.
    Senators, it is a great honor to be testifying before you 
here today, and I echo the gratitude I share with my co-
panelists for your deliberation and your careful consideration 
of these matters before us.
    I'm not a military lawyer, but I am an attorney with 
expertise on the laws of war and U.S. counterterrorism. I've 
attended multiple military commission hearings at Guantanamo 
Bay. I've had numerous formal and informal conversations with 
military commission personnel, the prosecution, and the 
defense. Some of them are here today, and I can guarantee you 
they will tell me what they think of what I said when we're 
done.
    I am also a former U.S. military officer. I left the Air 
Force as a captain in 1996. As a young officer, I was asked to 
lead people much older and much more experienced than me, and 
they taught me something that I have never forgotten. When 
you're not sure what to do, stop, take a deep breath, and think 
about your bottom line. Ask questions. If the answers don't fit 
with the bottom line, ask more questions until the answers do. 
Then you make it happen. Today, I will talk about bottom lines 
and how to make it happen.
    Mr. Chairman, the bottom line for me is this: the Supreme 
Court's decision in Hamdan presents Congress and the 
administration with an opportunity to start bringing accused 
terrorists to justice in a way that will both protect America's 
security and uphold its values. I hope that Congress seizes 
this opportunity by reaffirming the United States' longstanding 
commitment to Common Article 3 of the Geneva Conventions and 
ensuring that trials of terrorist suspects captured on the 
battlefield go forward in accordance with the standards of the 
UCMJ. If Congress and the administration choose that course, it 
would help to rebuild America's moral authority in the world, 
reaffirm America's commitment to the rule of law, and reclaim 
America's greatest tool in the war on terror: our integrity.
    If, on the other hand, Congress and the administration try 
to find a way around Hamdan by shirking the Geneva Conventions 
or creating substandard tribunals, it is the tribunal system 
and American values that will remain on trial, as they have 
been for the past 4\1/2\ years, not the terrorists, who should 
be on trial.
    Al Qaeda is an irregular force that does not abide by the 
rules of war, and it is not a signatory to the Geneva 
Conventions. As such, when its members are captured on the 
battlefield, they are not entitled to prisoner-of-war status. 
There are 143 articles in the third Geneva Convention on POWs; 
110 address the requirements for the treatment of POWs. That is 
truly the gold standard. There's only one Common Article 3, 
although it's repeated four times. Some say even that one may 
not apply to al Qaeda.
    Common Article 3 is a narrow rule with the broadest 
application and establishes the barest minimum safeguards for 
humane treatment and fair justice. It was established as a 
minimum standard that would cover everyone involved in an armed 
conflict, regardless of their status, regardless of their 
behavior. It is specifically designed to apply to conflicts 
between a state that is a party to the Conventions, like the 
United States, and a nonstate force, like al Qaeda, that, by 
definition, cannot be a signatory. It ensures that no one 
caught up in an armed conflict is completely beyond the reach 
of law. Common Article 3 is the bottom line.
    Some have suggested that Common Article 3 somehow confuses 
the U.S. military, but the Pentagon has been clear about the 
meaning of Common Article 3 and its obligations for decades, as 
you heard last week, from the JAGs. Deputy Secretary England 
said in his memo last week that the military orders, policies, 
directives, executive orders, and doctrine already comply with 
Common Article 3. The humane-treatment standard required by 
Common Article 3 is essentially the same standard that Congress 
already mandated when it passed the McCain amendment in the DTA 
last year. So, I don't understand how the administration can 
claim the military is confused by Common Article 3. If our 
troops are confused, it is because the administration decided 
to ignore the conventions, not because the Supreme Court says 
we must respect Geneva.
    I would add, Mr. Chairman, that the United States 
Constitution gives us a lot of words that are hard to define, 
like ``due process.'' Americans believe in these principles 
even though they feel mushy. We have worked out the meaning of 
these terms over the past 200 years. We don't say, ``I can't 
define due process, in 10 words; therefore, we're not going to 
have any.'' If Congress thinks the troops need clarity, the 
best thing you can do is to reaffirm that Common Article 3 
applies.
    Were Congress to step back from Common Article 3, it would 
send a message that America's enemies would all too willingly 
amplify: the United States affirmatively seeks to treat people 
inhumanely, intends to try and execute people without fair 
trials, and willingly defies its own allies and history to do 
so.
    Some have expressed concern that applying Common Article 3 
to al Qaeda would leave American troops vulnerable to frivolous 
prosecutions under the War Crimes Act. Mr. Chairman, 
distinguished members, Human Rights Watch believes that the 
administration encouraged reluctant interrogators to adopt 
techniques that they knew were wrong by telling them that they 
would not be prosecuted. I think this speaks for itself. The 
truth is, no servicemember can be prosecuted for violations of 
the War Crimes Act unless military prosecutors decide to bring 
charges against them. Here's the bottom line. If we want an act 
that was committed against an American to be a crime, it also 
has to be a crime if it's committed by an American. I think 
it's hard to disagree with that.
    People captured on the battlefield and suspected of having 
committed war crimes or other serious offenses should be 
brought to justice. Common Article 3, like much of the laws of 
war, is about good warfighting. The laws of war were not rooted 
in humanitarian concerns; they were rooted in what made sense 
on the battlefield, what was in the military's interest to 
pursue. It's only recently in the history of the laws of war 
that human rights became an overlay. Common Article 3 is good 
warfighting, the military manuals that refer to this are in my 
written testimony.
    Military commissions that prosecute these persons must meet 
international fair-trial standards. The rules and procedures 
for the military commissions should be based on those provided 
in general courts-martial. Every bogeyman raised by the 
administration is answered in the existing rules: hearsay, 
Miranda, classified evidence, chain of custody. Your JAGs have 
been dealing with these in a military environment for decades. 
The administration has some very clever civilian lawyers, but 
their attempts to wing it have been a disaster. Let Congress 
set the bottom line, and let the military lawyers make it 
happen using what they know best. The bottom line? Any 
departures from these standards must be exceptional, narrowly 
tailored to meet the interest of justice, and uniformly 
established before any proceedings begin, not just because 
that's fair, but because it's common sense.
    The bottom line on coercion: Congress cannot effectively 
prohibit abusive interrogation techniques if rules for military 
commissions do not explicitly and effectively keep evidence 
obtained through those techniques out of judicial proceedings. 
Anything less than this will cut the heart out of the DTA. 
Upholding this rule provides the DTA with an enforcement 
mechanism we can definitely live with. Any rules and procedures 
must make such a prohibition on coerced evidence meaningful.
    In my written statement, I touch upon how this works in the 
military justice system, in stark comparison with the virtually 
meaningless rules adopted by the failed military commissions.
    What about hearsay evidence and Miranda warnings? Again, 
the U.S. courts-martial system has rules and procedures to 
address these concerns. It allows more evidence than has been 
suggested. To say the military lawyers haven't figured out how 
to deal with these challenges in the military environment, I 
think, is insulting to them. The bottom line concerning hearsay 
evidence: any rules or procedures that allow secondhand 
evidence, hearsay, should not allow the Government to convict 
people on the basis of secret interrogations without producing 
the witness either in person, by closed-circuit television or 
by deposition. The alternative is relying solely on an 
interrogator to tell you he didn't torture a confession out of 
someone, or relying upon one accused al Qaeda member to speak 
the truth about another. Use the witness to test the stories. 
The military knows how.
    The bottom line in Miranda is this: no one should be forced 
to testify against themselves or to confess guilt. As with 
rules and procedures that give effect to the ban on abusive 
interrogations, Congress should look to the rules already in 
place, already tested, already used in training, and use the 
U.S. military's justice system to its best advantage. If the 
administration has a good reason to proceed differently, let 
the administration make the case. But concerns about getting in 
the evidence should not obscure what is most important here: 
the bottom line.
    I will add a bogeyman to this panoply of bogeymen that the 
administration has put up. Here's my bogeyman, the civilian 
trial lawyers, the Department of Justice (DOJ), saying, ``We 
have this great evidence from Ramzi bin al-Shibh and Khalid 
Sheikh Mohammed. Unfortunately, the only way to get it in is, 
to admit that we actually are holding them someplace, and we've 
tortured them. What kind of rules let us do that?'' That's my 
bogeyman.
    In closing, Senators, I want to see terrorists brought to 
justice. I was in a room when accused al Qaeda propaganda 
minister Ali Hamza al Bahlul called the proceedings 
illegitimate. Of course he said that. That's not the issue. 
That's not what's important about this. What killed me was the 
knowledge that an objective person like myself had to agree 
with him when he said that. Please make his statement untrue. 
Please do what's necessary to set the bottom line where it 
should be, and let's make it happen.
    Thank you very much.
    [The prepared statement of Ms. Bierman follows:]

             Prepared Statement by Katherine Newell Bierman

    Senators, it is a great honor to testify before you here today.
    I am not a judge advocate, but I am an attorney with expertise on 
the laws of war and U.S. counterterrorism law and policy and its 
practical effects on this nation's ability to fight a truly horrible 
enemy. I attended multiple military commission hearings at Guantanamo 
Bay as a human rights observer, and have had numerous formal and 
informal conversations with military commission officials, the 
prosecution, and the defense, military and civilian.
    I am also a former U.S. military officer. I left the Air Force as a 
captain in 1996. As a young officer, I was asked to lead people much 
older and more experienced than me. They taught me something I have 
never forgotten: when you are not sure what to do, stop, take a deep 
breath, and think about your bottom line. Ask questions--and if the 
answer doesn't fit with the bottom line, you are asking the wrong 
questions. Keep asking, get an answer that fits, and then make it 
happen.
    Today I will talk about the bottom line, and how to make it happen.
    Mr. Chairman, for me, the bottom line is this: The Supreme Court's 
decision in Hamdan presents Congress and the administration with an 
opportunity--to start bringing accused terrorists to justice in a way 
that will both protect America's security and uphold its values. I hope 
that Congress seizes this opportunity, by reaffirming the United 
States' longstanding commitment to Common Article 3 of the Geneva 
Conventions, and ensuring that trials of terrorist suspects captured on 
the battlefield go forward in accordance with the standards of the 
Uniform Code of Military Justice (UCMJ), which have served this country 
so well for so long. If Congress and the administration choose that 
course, it will help to rebuild America's moral authority in the world, 
reaffirm America's commitment to the rule of law, and reclaim America's 
greatest tool in the war on terror: our integrity.
    If, on the other hand, Congress and the administration try to find 
a way around Hamdan, by shirking the Geneva Conventions or creating 
substandard tribunals, the tribunal system will remain on trial, 
instead of the terrorists. That would be a profoundly unfortunate 
result, whether the goal is an effective fight against terrorism or 
upholding the rule of law.
     common article 3 of the geneva conventions applied to al qaeda
    In Hamdan, the Supreme Court determined that Common Article 3 of 
the Geneva Conventions (``Common Article 3'') applied to Mr. Hamdan as 
a member of al Qaeda captured on the battlefield.\1\ The Court 
determined the military commissions established by the President to try 
Mr. Hamdan and other ``enemy combatants'' violated the requirements of 
Common Article 3.
---------------------------------------------------------------------------
    \1\ Hamdan v. Rumsfeld 548 U.S.--(2006).
---------------------------------------------------------------------------
    In 2002, the administration had decided that no part of the Geneva 
Conventions, including Common Article 3, would apply in a legally 
binding way to the armed conflict with al Qaeda.\2\ Since the Hamdan 
decision was announced, some have suggested that this ruling somehow 
imposes a new or alien requirement on the U.S. military, and that it is 
inappropriate to apply Common Article 3 to al Qaeda because it is not a 
signatory to the Geneva Conventions and because its members defy the 
laws of war and any fundamental regard for human rights.
---------------------------------------------------------------------------
    \2\ George Bush. Memorandum on Humane Treatment of Taliban and al 
Qaeda Detainees. February 7, 2002. Available at http://
www.justicescholars.org/pegc/archive/White--House/bush--memo--
20020207--ed.pdf.
---------------------------------------------------------------------------
    This argument misrepresents the purpose and requirements of Common 
Article 3. It is true that al Qaeda is an irregular force that does not 
abide by the rules of war and is not a signatory to the Geneva 
Conventions. As such, its members are not entitled to prisoner of war 
status, or covered by many of the other provisions of the Third Geneva 
Convention concerning prisoners of war.\3\
---------------------------------------------------------------------------
    \3\ Of 143 articles in the Third Geneva Convention, 110 address the 
requirements for the treatment of prisoners of war. Geneva Convention 
(III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 
[1955] 6 U.S.T. 3316, T.I.A.S. No. 3364 (entered into force with 
respect to the USA February 2, 1956), also available at http://
www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/
6fef854a3517b75ac125641e004a9e68.
---------------------------------------------------------------------------
    But the framers of the Geneva Conventions intended to establish a 
minimal standard that would cover everyone involved in an armed 
conflict, regardless of the nature of the conflict or an individual's 
status or behavior. Common Article 3 is that standard. It is 
specifically designed to apply to conflicts between a state that is 
party to the Conventions (like the U.S.) and a non-state force, like al 
Qaeda, that, by definition, could not be a signatory. It is a narrow 
rule with the broadest application, and establishes the barest minimum 
safeguards for humane treatment and fair justice. It ensures that no 
one caught up in an armed conflict is completely beyond the reach of 
law.
    common article 3 of the geneva conventions and humane treatment
    The administration also argues that the terms of Common Article 3 
are too vague. In particular, proponents point to the prohibition on 
``outrages against personal dignity,'' and say that the U.S. military 
would be unable to apply Common Article 3 in practice.
    But the Pentagon has been clear about the meaning of Common Article 
3 and its obligations for decades, as the standards it embodies are 
already part of U.S. military doctrine, policy, and training.\4\  The 
U.S. military has long treated Common Article 3 and, in fact, the much 
higher standard for the treatment of prisoners of war (POWs), as 
standard operating procedure.\5\ This committee heard testimony last 
week to this effect from Judge Advocates Generals (JAGs) from all the 
armed services.\6\ Following the Hamdan decision, U.S. Deputy Secretary 
of Defense Gordon England issued a memorandum to all Department of 
Defense (DOD) units stating unequivocally that existing DOD orders, 
policies, directives, execute orders, and doctrine already comply with 
the standards of Common Article 3.\7\ I sincerely doubt that the Deputy 
Secretary of Defense would make such a statement if the Pentagon was 
unclear about the meaning of the terms of Common Article 3.
---------------------------------------------------------------------------
    \4\ As was discussed in testimony last week before this committee:
    Senator McCain. You agree with that so that--General Black, do you 
believe that Deputy Secretary England did the right thing by, in light 
of the Supreme Court decision, issuing a directive to DOD to adhere to 
Common Article 3? In so doing, does that impair our ability to wage the 
war on terror?
    General Black: I do agree with the reinforcement of the message 
that Common Article 3 is a baseline standard. I would say that at least 
in the United States Army, and I'm confident in the other Services, 
we've been training to that standard and living to that standard since 
the beginning of our Army. We continue to do so.
    Admiral McPherson (?): It created no new requirements for us. As 
General Black had said, we have been training to and operating under 
that standard for a long, long time.
    Senator McCain. General?
    General Rives (?): Yes, I agree.
    Senator McCain. (Inaudible.)
    General Sandkulher (?): My opinion is that's been the baseline for 
a long time, sir.
    General Romig (?): Yes, sir. That's the baseline. As General Black 
said, we train to it. We always have. I'm just glad to see we're taking 
credit for what we do now.
    Admiral Hutson: I agree with what was said. But I'd point, I guess, 
that the President on February 7, 2002, said that Common Article 3 did 
not apply. So I think that this is--although we've been training to it 
and so forth, I think this is an important, if only perhaps symbolic, 
change of policy by the administration that I welcome.
    Military Commissions in Light of the Supreme Court Decision in 
Hamdan v. Rumsfeld Before the U.S. Senate Committee on Armed Services, 
109th Cong. (2006).
    \5\ In 1956, the United States Army codified in AFM 27-10 its 
position that unwritten or customary law is binding on all nations and 
that all U.S. forces must strictly observe it. U.S. Dep't of Army Field 
Manual, Field Manual 27-10, The Law of Land Warfare, para.7(c) (18 July 
1956). AFM 27-10 restated Common Article 3 and Third Geneva Convention 
articles regarding trial of POWs. It also provided that ``in addition 
to the `grave breaches' of the Geneva Conventions of 1949, the 
following acts are representative of violations of the law of war (`war 
crimes'): . .  killing without trial spies or other persons who have 
committed hostile acts.'' AFM 27-10 Sec 504(l).
    \6\ Id.
    \7\ ``It is my understanding that, aside from the military 
commission procedures, existing DOD orders, policies, directives, 
execute orders, and doctrine comply with the standards of Common 
Article 3 and, therefore, actions by DOD personnel that comply with 
such issuances would comply with the standards of Common Article 3.'' 
Memorandum from Gordon England to the Secretaries of the Military 
Departments, July 7, 2006, available at: http://www.defenselink.mil/
pubs/pdfs/DepSecDef%20memo%20on%20common%20article%203.pdf.
---------------------------------------------------------------------------
    The U.S. has been steadfast in applying the full protections of the 
Geneva Conventions (i.e., far more than just Common Article 3) to enemy 
fighters, even when not required to do so. U.S. adherence to the 
highest standards has improved treatment of captured American 
servicemembers, even when capturing governments claimed American 
service men were unprotected by Geneva.
    The U.S. even applied the full protections of the Geneva 
Conventions to soldiers of governments who insisted the Conventions did 
not bind them, and when the Conventions technically did not apply. 
Examples include the conflict against the Viet-Cong in Vietnam, covert 
operations against the Soviet Union in Afghanistan, and against forces 
loyal to Somali warlords targeting international peacekeepers.\8\
---------------------------------------------------------------------------
    \8\ Amicus Curiae Brief of Retired Generals and Admirals and Milt 
Bearden in Support of Petitioner (Geneva Conventions--Judicial 
Deference), 5-7, in Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006).
---------------------------------------------------------------------------
    The current conflict is not the last Americans will ever fight. It 
is only a matter of time before governments who might otherwise avoid 
the appearance of illegality will exploit America's efforts to carve 
out exceptions to the Geneva Conventions to justify poor treatment of 
captured Americans.
    Were Congress to repudiate in some way the application of Common 
Article 3 to this or any conflict, it would be reversing decades of 
U.S. law and policy and sending a message to U.S. troops that is 
diametrically opposed to their training.
    Congress has also set standards. The humane treatment standard 
required by Common Article 3 is essentially the same standard that 
Congress already mandated when it passed the McCain Amendment last 
year, which stated as law, ``No individual in the custody or under the 
physical control of the United States Government, regardless of 
nationality or physical location, shall be subject to cruel, inhuman, 
or degrading treatment or punishment.'' \9\
---------------------------------------------------------------------------
    \9\ Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 
2680 (2005).
---------------------------------------------------------------------------
    For decades, the United States has accepted the substance of Common 
Article 3 as both an obligation under treaty and customary 
international law.\10\ If Congress were to step back from that 
obligation, it would in effect be establishing a reservation to the 
Geneva Conventions. No country in the world has ever before formally 
renounced these obligations under Common Article 3. Such a step would 
send a message that America's enemies would all-too willingly amplify: 
the United States affirmatively seeks to treat people inhumanely (thus 
effectively repudiating the McCain Amendment), intends to try and 
execute people without fair trials, and willingly defies its own allies 
and history to do so.
---------------------------------------------------------------------------
    \10\ Geneva Convention (III) Relative to the Treatment of Prisoners 
of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, T.I.A.S. No. 3364 (entered 
into force with respect to the USA February 2, 1956), also available at 
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/
6fef854a3517b75ac125641e004a9e68. U.S., Remarks of Michael J. Matheson, 
Deputy Legal Adviser, U.S. Department of State, 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, American 
Journal of International Law and Policy, Vol. 2, 1987, pp. 427-428 
(iterating that Common Article 3 is customary international law).
---------------------------------------------------------------------------
    Common Article 3 is not just a matter of human rights. Like many 
laws of war, it is good warfighting. The U.S. military knows this well:

          Insurgent captives are not guaranteed full protection under 
        the articles of the Geneva Conventions relative to the handling 
        of EPWs [enemy prisoners of war]. However, Article 3 of the 
        Conventions requires that insurgent captives be humanely 
        treated and forbids violence to life and person--in particular 
        murder, mutilation, cruel treatment, and torture. It further 
        forbids commitment of outrages upon personal dignity, taking of 
        hostages, passing of sentences, and execution without prior 
        judgment by a regularly constituted court.
          Humane treatment of insurgent captives should extend far 
        beyond compliance with Article 3, if for no other reason than 
        to render them more susceptible to interrogation. The insurgent 
        is trained to expect brutal treatment upon capture. If, 
        contrary to what he has been led to believe, this mistreatment 
        is not forthcoming, he is apt to become psychologically 
        softened for interrogation. Furthermore, brutality by either 
        capturing troops or friendly interrogators will reduce 
        defections and serve as grist for the insurgent's propaganda 
        mill.\11\
---------------------------------------------------------------------------
    \11\ Department of the Army, Field Manual (FM) 34-52, Intelligence 
Interrogation, May 8, 1987, Chapter 9.

       common article 3 of the geneva conventions and war crimes
    In the War Crimes Act of 1997, Congress made it a felony for any 
U.S. military personnel or U.S. national to engage in conduct that 
violates Common Article 3.\12\ Reports indicate that the administration 
encouraged interrogators to adopt techniques that violated Common 
Article 3 by telling them they would be immune from prosecution.\13\
---------------------------------------------------------------------------
    \12\ 18 U.S.C. Sec. 2441(c) (2006). ``(c) Definition.--As used in 
this section the term 'war crime' means any conduct--. . . (3) which 
constitutes a violation of Common Article 3 of the international 
conventions signed at Geneva, 12 August 1949, or any protocol to such 
convention to which the United States is a party and which deals with 
non-international armed conflict''.
    \13\ John H. Richardson, ``Acts of Conscience,'' Esquire Magazine, 
Vol. 146, Issue 2, August 2006.
---------------------------------------------------------------------------
    In the wake of the Hamdan decision, some have expressed concern 
that applying Common Article 3 to al Qaeda would leave American troops 
vulnerable to frivolous prosecution.
    To accept such a proposition, one would have to believe that the 
likelihood of war crimes prosecutions by the United States has no 
relation to the reality of current or historical practice. No soldier 
can be prosecuted for violations of the War Crimes Act unless military 
prosecutors decide to bring charges against him. The military justice 
system is highly unlikely to take action against soldiers for trivial 
or ambiguous offenses under this act, especially since it has never 
done so even to prosecute even extremely serious crimes. To date, no 
U.S. servicemember has ever been prosecuted for any violation of the 
War Crimes Act, even in situations such as the war in Iraq, where 
everyone agrees the Geneva Conventions fully apply. Much less for 
violations of Common Article 3 occurring under less clear 
circumstances.
    The fact is, American military prosecutors, and not anyone else, 
will make the decision to prosecute. It is hard to understand why we 
would suddenly not trust the Executive to judge whether a U.S. 
servicemember's suspected crime was sufficiently grave and 
substantiated to merit prosecution.
    The administration also argues that, because Common Article 3 is an 
international standard interpreted by foreign courts, these courts will 
somehow create frivolous standards that U.S. courts will use to 
prosecute Americans. This proposition disregards the fact that foreign 
judicial opinions are not binding on U.S. courts,\14\ and it is 
extremely unlikely that a U.S. prosecutor would pursue a case or a U.S. 
court would hold someone criminally responsible under a strained 
interpretation of this standard.
---------------------------------------------------------------------------
    \14\ Remarks of Justice Sandra Day O'Connor, Southern Center for 
International Studies (Oct. 28, 2003), available at http:// 
www.southerncenter.org/OConnor--transcript.pdf.
---------------------------------------------------------------------------
    The provision of Common Article 3 concerning ``outrages upon 
personal dignity'' has always been interpreted as prohibiting very 
serious abuses. According to the official commentary on the Geneva 
Conventions, it was meant to prohibit acts ``which world opinion finds 
particularly revolting--acts which were committed frequently during 
World War II.'' \15\
---------------------------------------------------------------------------
    \15\ Jean de Preux. III Geneva Convention: Relative to the 
Treatment of Prisoners of War. In Jean S. Pictet, The Geneva 
Conventions of 12 August 1949: Commentary, 39 (Geneva: International 
Committee of the Red Cross, 1960).
---------------------------------------------------------------------------
    Judicial opinions from international criminal tribunal opinions 
reflect that level of severity. ``Outrages upon personal dignity'' as a 
criminal act are usually a form of violence, determined in part by 
severity and duration, and the intensity and duration of the resulting 
physical or mental suffering. Typically a crime of an ``outrage against 
human dignity'' is prosecuted alongside other egregious or violent acts 
to cover behavior outrageous precisely because it offends all sense of 
decency.\16\
---------------------------------------------------------------------------
    \16\ Knut Dormann, Louise Doswald-Beck (contributor), Robert Kolb 
(contributor). Elements of War Crimes Under the Rome Statute of the 
International Criminal Court: Sources and Commentary. (Cambridge, UK: 
Cambridge University Press, 2003). Pp. 314-324.
---------------------------------------------------------------------------
    For example, international criminal tribunal cases often prosecute 
outrages against human dignity alongside charges such as murder, rape, 
and torture--men who forced women to dance naked on tables before they 
raped them,\17\ murderers who forced women to strip naked in public 
before they were killed,\18\ or interrogators who rubbed a knife on a 
woman's thigh and threatened to put it in her during torture.\19\ 
Justice demanded those prosecutions address such humiliating treatment 
as separate outrages in their own right. While ``outrages'' do not have 
to take place only in the context of rape or murder, they have 
generally been prosecuted in the context of the most extreme situations 
of abuse.
---------------------------------------------------------------------------
    \17\ The Prosecutor v. Kunarac, Kovac and Vukovic, Judgment of 
Trial Chamber II, ICTY, JL/P.I.S./566-e February 22, 2001.
    \18\ Prosecutor v. Nyiramasuhuko, Indictment, Case No. ICTR-97-21-I 
(Int'l Crim. Trib. for Rwanda May 26, 1997), case is ongoing.
    \19\ The Prosecutor v. Anto Furundzija, Statement of the trial 
chamber at the Judgment hearing, ICTY, Case No. IT-95-17/1-T December 
10, 1998.
---------------------------------------------------------------------------
    I would add, Mr. Chairman, that the U.S. Constitution gives us a 
lot of words that are hard to define: for example, due process, free 
speech, cruel and unusual punishment, unreasonable searches. Americans 
believe in the principles embodied in these terms, even though their 
precise legal meaning is not self-evident. We don't say, ``I can't 
define due process in 10 words or less, so let's not have any.'' 
Americans have worked out the meaning of these terms over 200 years. 
The precise meaning of the terms of the Geneva Conventions have also 
become broadly understood in the 50 years since the Conventions were 
drafted, and are well understood by the U.S. military. It was the 
administration's decision to ignore the Conventions that confused our 
troops, not the Supreme Court's decision to respect Geneva. If Congress 
wants clarity, the best thing it can do is to reaffirm that Common 
Article 3 applies.
    Common Article 3 is actually much easier than you might think, 
because it isn't the gold standard, like granting prisoner-of-war 
rights. It's the barest minimum. The list of prohibited conduct is 
short precisely because the drafters of the Geneva Conventions agreed 
to apply it broadly.
    Finally, Mr. Chairman, we should remember that the War Crimes Act 
not only permits prosecution of American troops who commit such crimes 
against others, but prosecution of foreign nationals who commit such 
crimes against Americans.\20\ If we were to deny the application of 
Common Article 3 to this conflict, we would deny ourselves one avenue 
to try terrorists who perpetrate these offenses against Americans. If 
we want an act that was committed against an American to be a crime, it 
also has to be a crime when it is committed by an American. I think it 
is hard to disagree with that bottom line.
---------------------------------------------------------------------------
    \20\ 18 U.S.C. Sec. 2441 (2006).
    (a) Offense.--Whoever, whether inside or outside the United States, 
commits a war crime, in any of the circumstances described in 
subsection (b), shall be fined under this title or imprisoned for life 
or any term of years, or both, and if death results to the victim, 
shall also be subject to the penalty of death.
    (b) Circumstances.--The circumstances referred to in subsection (a) 
are that the person committing such war crime or the victim of such war 
crime is a member of the Armed Forces of the United States or a 
national of the United States (as defined in section 101 of the 
Immigration and Nationality Act). (emphasis added).
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                    common article 3 and fair trials
    People captured on the battlefield and suspected of having 
committed war crimes or other serious offenses should be brought to 
justice. Military commissions that prosecute these persons must meet 
international fair trial standards. The rules and procedures for the 
military commissions should be based upon those provided for general 
courts-martial.\21\ Any departures from these standards must be 
exceptional, narrowly tailored to meet the interests of justice, and 
uniformly established before any proceedings begin. In particular, some 
principles must not be compromised.
---------------------------------------------------------------------------
    \21\ These rules and procedures are found in the Manual for Courts-
Martial (MCM), which incorporates the Rules for Courts-Martial (RCM), 
the UCMJ, and the Military Rules of Evidence (MRE); and the body of 
jurisprudence that has developed from these standards.
---------------------------------------------------------------------------
               military commissions and coerced evidence
    Through the adoption of the McCain Amendment to the Detainee 
Treatment Act (DTA), Congress established a prohibition on cruel, 
inhuman, or degrading treatment or punishment expressly to address 
abusive interrogation techniques.\22\
---------------------------------------------------------------------------
    \22\ Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 
2680 (2005).
---------------------------------------------------------------------------
    International and U.S. law have long recognized that one way to 
curb official abuses in gathering information is to prohibit the use of 
any evidence obtained through such actions in judicial proceedings. 
Otherwise, the goal of obtaining a conviction becomes an incentive to 
coerce confessions from suspects. This is the fundamental logic behind 
international rules against prosecuting people with evidence obtained 
through torture,\23\ and behind rules in U.S. courts against the use of 
involuntary confessions or evidence obtained through other unlawful 
means.\24\
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    \23\ Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, 1465 U.N.T.S. 85 entered into force 
with regards to the United States June 26, 1994. Article 15.
    \24\ See, e.g. Mapp v. Ohio, 367 U.S. 643 (1961).
---------------------------------------------------------------------------
    The bottom line: Congress cannot effectively prohibit abusive 
interrogation techniques if rules for military commissions do not 
explicitly and effectively keep evidence obtained through those 
techniques out of subsequent legal proceedings. Evidence obtained 
through interrogations that violate the DTA shouldn't be used in 
military commission hearings. Anything less than this will cut the 
heart out of the McCain amendment. Upholding this rule provides the 
McCain amendment with an enforcement mechanism.
    Furthermore, any rules and procedures must make such a prohibition 
meaningful. For this reason, rather than starting from scratch, 
Congress should ensure that military commissions use the rules and 
procedures in the Manual for Courts-Martial and accompanying case law 
necessary to prohibit the use of coerced evidence.
    In the U.S. military justice system, an involuntary statement 
obtained through the use of coercion generally may not be received in 
evidence against an accused who made the statement. The accused must 
move to suppress, or object to the evidence. If the military judge 
thinks there is sufficient doubt about the statement, the prosecution--
the party with the best access to the story behind the statement--then 
has the burden of establishing the admissibility of the evidence. The 
military judge must find by a preponderance of the evidence that a 
statement by the accused was made voluntarily before it may be received 
into evidence. Statements of witnesses not present before the court are 
presumptively inadmissible. The proponent must show the statement meets 
limited exceptions to this rule designed to weed out questionable 
evidence.
    The failed military commission rules demonstrate a stark contrast. 
On March 24, 2006, the General Counsel of the DOD adopted a change to 
the military commission rules to prohibit the use of evidence obtained 
through torture.\25\ However, the rule provided few safeguards to make 
the prohibition meaningful. It failed to indicate whether the 
commission on its own would make inquiries into the possible use of 
torture and whether the U.S. Government must provide the information 
the commission requests to determine whether a statement was extracted 
through torture. It also failed to provide guidance on whether the 
prosecution must make its own independent determination of whether 
interrogation methods constituted torture, or whether it must accept 
determinations made by others, e.g., those conducting the 
interrogations, or senior Pentagon or Department of Justice 
officials.\26\
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    \25\ ``Military Commission Instruction No. 10, `Certain Evidentiary 
Requirements,'' U.S. DOD, March 24, 2006, available at: http://
www.defenselink.mil/news/Mar2006/d20060327MCI10.pdf.
    \26\ See, e.g., ``Q & A on Military Instruction Number 10: Will it 
Keep Evidence Obtained through Torture or Cruel Treatment out of 
Commission Trials?'' Human Rights Watch Question and Answer, March 31, 
2006, available at: http://hrw.org/english/docs/2006/03/31/
usdom13109.htm.
---------------------------------------------------------------------------
          the use of hearsay evidence in military commissions
    Opponents of the use of the U.S. military justice system's rules 
concerning hearsay evidence say that such rules will stymie 
prosecutions by limiting evidence essential to the prosecution of 
accused terrorists. They suggest that rules regarding hearsay--which 
admit ``second hand'' statements only in exceptional circumstances--
will require military commanders to be called in from warfighting 
duties to testify at proceedings thousands of miles away; that key 
witnesses in Afghanistan and elsewhere will refuse to travel to 
testify; and that valuable and reliable evidence will be lost to 
logistics.
    In fact, the U.S. courts-martial system has rules and procedures to 
address these concerns, and allows in more hearsay evidence that these 
arguments suggest. Hearsay exceptions in U.S. courts-martial are 
generally the same kinds used in U.S. Federal courts.\27\ Summaries of 
statements made by witnesses in an excited state, at a time of high 
stress, or just after perceiving an event are all admissible--and the 
actual witnesses who made the statements need not be present. In all of 
these cases, soldiers or arresting officers can simply describe what 
witnesses on the scene told them; the person making the battlefield 
utterance who wouldn't have to. In this sense, there is some modest 
burden on the military, but it's worth it given the alternative, which 
allows easy cover-up of coercive interrogation. In addition, there are 
many other ways to adhere to the existing rules against hearsay without 
imposing excessive travel burdens on witnesses who are located far 
away. Witnesses can testify by closed circuit television, or their 
depositions by both sides can be taped and played in court. Moreover, 
the Military Rules of Evidence allow a declarant to be determined 
``unavailable'' by reason of military necessity, opening the door to a 
number of hearsay exceptions.
---------------------------------------------------------------------------
    \27\ Article 36(a) of the UCMJ provides that trial procedures for 
courts-martial, military commissions and other tribunals may be 
prescribed by the President. It states that the regulations should as 
far as practicable ``apply the principles of law and the rules of 
evidence generally recognized in the trial of criminal cases in the 
United States District Courts''. The Manual for Courts-Martial (chapter 
three: ``Military Rules of Evidence'') was issued to set out the 
applicable rules of evidence for courts-martial, and was modeled on the 
Federal Rules of Evidence: See U.S. v. Diaz, 59 M.J. 79, U.S. Armed 
Forces, Sep 17, 2003; Hamdan v. Rumsfeld--S.Ct.--, 2006 WL 1764793; 
Manual for Courts-Martial, Military Rules of Evidence, Analysis of the 
Military Rules of Evidence, App. 22, M.R.E. 801.
---------------------------------------------------------------------------
    The bottom line concerning hearsay evidence should be this: Any 
rules or procedures that allow hearsay should not allow the government 
to convict people on the basis of secret interrogations without 
producing the witness, either in person, by closed-circuit television, 
or by deposition. Our concern is that such interrogations are likely to 
be described by only the interrogator, or possibly only the 
interrogator's supervisor or colleague, or a government official who 
spoke to an interrogator from a foreign country. This is fundamentally 
unfair for two reasons.
    First, if you are listening to a report from an interrogator about 
a confession or admission, how do you test whether the statement was 
coerced or even tortured out of the declarant? You are deciding whether 
the interrogation used torture by asking the interrogator himself. If 
the declarant also testifies, at least then the factfinder can decide 
based on two sides to that story--the declarant and any interrogator 
who might refute claims of mistreatment.
    The second reason does not relate to statements by interrogators, 
but statements made by one detainee implicating another. When the 
statement is second hand, you can't directly test its credibility. 
According to the administration, al Qaeda members are trained to lie 
during interrogation. No one should be convicted on the basis of the 
testimony of such allegedly unsavory characters without the opportunity 
to question the witness directly. An interrogator's hearsay account of 
what one detainee said about another deprives the suspect of this 
essential confrontation right.
    Some advocate adopting the evidentiary rules and procedures of 
international criminal tribunals to accommodate hearsay evidence. 
However, to be effective and fair, such a step would need to do more 
than simply adopt an evidentiary standard. International criminal 
tribunals use a panoply of evidentiary and other rules to ensure 
fairness.
    Generally, their rules allow the factfinder to admit any relevant 
evidence that he or she deems to have probative value. But, there are 
other rules that work with this standard. For example, the tribunal is 
made up of legally trained judges who have experience making fine 
distinctions on the reliability and value of different forms of 
evidence that a jury or even a panel of non-lawyer officers simply 
won't have. There is a clear prohibition on any evidence that is 
obtained by a violation of internationally recognized human rights 
norms if ``the violation casts substantial doubt on the reliability of 
the evidence; or the admission of the evidence would be antithetical to 
and would seriously damage the integrity of the proceedings.'' \28\ The 
judges can decide this issue on their own; a party doesn't have to 
raise the matter. The judges are instructed to look at ``indicia of [a 
statement's] reliability'' such as its truthfulness and trustworthiness 
along with whether or not the statement was voluntarily given.\29\ The 
judges can decide to disregard testimony after it has been given rather 
than keeping it out in the first place.\30\ In ruling on admissibility, 
including the relevance or probative value of hearsay evidence, the 
court must give reasons that are placed in the record of the 
proceedings.\31\
---------------------------------------------------------------------------
    \28\ Rome Statute of the International Criminal Court, Article 
69(7) (2002).
    \29\ See., e.g., Prosecutor v. Tadic, Case No. IT-94-1, Decision on 
the Defense Motion on Hearsay, (Trial Chamber, Int'l Crim. Trib. Former 
Yugo., Aug. 5, 1996).
    \30\ Trial Transcript for IT-94-1-T, Greve Testimony, at page 923, 
line 8. Available at http://www.un.org/icty/transe1/960520ed.htm.
    \31\ Id. 64(2).
---------------------------------------------------------------------------
    Hearsay admissibility is one of the most misunderstood rules in the 
U.S. system, with many careful and complex rules interwoven over time, 
but the U.S. military judge advocate corps knows them well. If the 
administration has a good reason to proceed differently, let the 
administration make the case. But concerns about ``getting in the 
evidence'' should not obscure the bottom line: Any rules or procedures 
that allow hearsay should not allow the government to convict people on 
the basis of secret interrogations without producing the witness. The 
invitation to abuse is simply too great.
             ``miranda warnings'' and military commissions
    The administration witnesses before the Judiciary Committee say 
that using the U.S. military justice system's requirements for rights 
warnings and exclusion of evidence would compromise military 
operations--that U.S. troops in the field would face a choice between 
reciting Miranda warnings as they conducted urban warfare, and thereby 
potentially discouraging valuable intelligence information, or forgoing 
prosecution of suspected terrorists.\32\
---------------------------------------------------------------------------
    \32\ The courts-martial system requires rights warnings through 
Article 31 of the UCMJ and the Miranda and Tempia line of cases.
---------------------------------------------------------------------------
    But the rules and procedures for courts-martial have already dealt 
with this issue. The rights warning is not required when someone is 
interrogated for the purpose of gathering intelligence.\33\ Moreover, 
the failure to give a rights warning does not keep evidence obtained 
through an intelligence interrogation out of court.
---------------------------------------------------------------------------
    \33\ A rights warning is only required when the questioning is of a 
``law enforcement or disciplinary'' nature: U.S. v. Lonetree, 35 MJ 
396, CMA 1992; cert denied 113 S.Ct 1813; U.S. v. Loukas, 29 M.J. 385, 
387 (CMA,1990). See also: U.S. v. Moses, 45 M.J. 132 (U.S. Armed 
Forces, 1996.); U.S. v. Cohen, 63 M.J. 45 (U.S. Armed Forces, 2006).
---------------------------------------------------------------------------
    Only if an interrogation is begun for the purposes of law 
enforcement or disciplinary proceedings is a rights warning required 
for the resulting statements to be admissible. Whether the 
interrogation is disciplinary or law enforcement is determined by 
assessing all the facts and circumstances at the time of the interview 
to determine whether the questioner was acting or could reasonably be 
considered to be acting in an official law-enforcement or disciplinary 
capacity.\34\
---------------------------------------------------------------------------
    \34\ U.S. v. Cohen, 63 M.J. 45, 49 (U.S. Armed Forces, 2006).
---------------------------------------------------------------------------
    Evidence obtained through intelligence interrogations is generally 
admissible. The other side can challenge that evidence for a number of 
reasons, the most relevant here being that it was coerced \35\ (or that 
the interrogations were really for law enforcement). If the judge 
decides evidence from intelligence interrogations cannot be admitted, 
the next question is whether the evidence from the law enforcement 
interrogation was tainted by a coerced intelligence interrogation. 
Evidence from intelligence interrogations can in principle be given to 
law enforcement interrogators, but if the evidence from an intelligence 
interrogation was coerced, that may keep out evidence from both 
interrogations.
---------------------------------------------------------------------------
    \35\ Rule 304, Military Rules of Evidence.
---------------------------------------------------------------------------
    This issue typically comes up when U.S. servicemembers are 
questioned for intelligence-gathering purposes, which not unusual. For 
example, when troops return to base after combat, they are often 
debriefed by intelligence personnel--a form of intelligence 
interrogation. Should the debriefer determine that a U.S. service man 
may have been involved in a crime, the purpose of the questioning might 
shift, with the purpose determining the admissibility of unwarned 
statements that the service man might make. The classic legal opinion 
on this rule is U.S. v. Lonetree, \36\ which dealt with a Marine Corps 
embassy guard stationed in Moscow who was charged, among other things, 
with committing espionage by passing confidential information to Soviet 
agents. He was debriefed for intelligence purposes and only later 
interrogated for prosecution. The court knew the difference, and 
unwarned statements made during the course of the intelligence 
debriefing came in.
---------------------------------------------------------------------------
    \36\ 35 MJ 396, CMA 1992; cert denied 113 S.Ct 1813.
---------------------------------------------------------------------------
    That's the rule now, Senators. Again, if the administration has a 
good reason for changing the rules, let it make the case.
    The bottom line regarding Miranda warnings is this: no one should 
be forced to testify against themselves or to confess guilt. This is 
another reason why statements which have been made as the result of 
torture may not be used as evidence in any proceedings. The protections 
in a general court-martial that prevent forced self-incrimination 
require that people be warned of their right to remain silent and their 
right to an attorney fairly early in a law enforcement or disciplinary 
process. As with rules and procedures that give effect to the ban on 
abusive interrogations, Congress should look to the rules already in 
place, already tested, already used in training, and use the U.S. 
military justice system to its best advantage.
    In closing: Senators, I want to see terrorists brought to justice. 
I was in the room when accused al Qaeda propaganda minister Ali Hamza 
al Bahlul called the proceedings illegitimate. Of course he said that, 
but that's not what's important. What killed me was the knowledge that 
any objective observer would have to agree with him. Please do what's 
necessary to set the bottom line where it should be, and let's make it 
happen.

    Chairman Warner. We thank you. A very powerful statement. I 
must say, I'm greatly impressed, thus far, with the panel and 
their commitment to try and bring into closer perspective the 
problems that face Congress here. I thank you.
    We'll now have Mr. Fidell, President of the National 
Institute of Military Justice (NIMJ).

STATEMENT OF EUGENE R. FIDELL, PRESIDENT, NATIONAL INSTITUTE OF 
                        MILITARY JUSTICE

    Mr. Fidell. Thank you, Mr. Chairman, Senator Levin, members 
of the committee.
    Chairman Warner. Tell me a little bit about the history of 
the Institute, just a word or two.
    Mr. Fidell. With great pleasure.
    The NIMJ was founded in 1991 by myself and a number of 
other former military lawyers who felt there was a need for 
some outside body of people who were familiar with the system, 
who were essentially believers in the system, but who believed 
that a purpose would be served by having an outside 
organization monitoring developments, trying to make 
suggestions from time to time, and trying to make the system as 
good as it could be.
    NIMJ is currently housed, Mr. Chairman, at Washington 
College of Law, and at American University. We have two overall 
objectives. One is to promote the fair administration of 
justice in the armed services, and, second, to foster improved 
public understanding of what used to be a fairly obscure area. 
Now, of course, every American, and a lot of people around the 
world, have become experts in it, by force of events.
    Chairman Warner. Thank you very much.
    Mr. Fidell. That's a little bit of the background.
    The directors and advisors are typically former officers, 
either career officers, up to and including brigadier general 
in the Marine Corps, rear admiral in the U.S. Navy; others, 
like myself, were relatively short-term military personnel. We 
have an exception or two, including a person with no military 
experience, but a former Federal prosecutor who is an expert in 
constitutional and criminal law.
    Chairman Warner. We thank you, sir. Now, please proceed.
    Mr. Fidell. Thank you very much.
    When I took off my uniform, 34 years ago, after 3 years, 7 
months, and 8 days, little did I think that I would, this far 
in the future, find myself testifying before the Senate Armed 
Services Committee, much less testifying about military 
commissions, which, in 1972, were viewed essentially as a 
museum piece. Everybody knew the Quirin case, the German 
saboteurs. But basically it was something you'd expect to find 
in the legal section of the Smithsonian. Events, obviously, 
have taken a different tack.
    Mr. Chairman, we circulated a discussion draft on July 6 
with our thoughts on what ought to be done in the wake of the 
Hamdan decision. We don't believe that draft is the last word, 
but we do think it's a sound starting point for your 
consideration. The draft, which is essentially a quite 
conservative document, reflects our respect for the basic 
integrity of the UCMJ and also the traditional interplay 
between the executive and legislative branches.
    We believe that the highest priority for military justice, 
what I'll call the classic military justice, dealing with good 
order and discipline in the force, or the particular subset 
that we're dealing with today, is the achievement of public 
confidence in the administration of justice. That's not simply 
another way of saying that we have 100 percent assurance, a 
mathematical certainty, that every person who's charged is 
going to be convicted. Rather, it's a shorthand way of 
summarizing all of the deeply held values that you referred to 
I believe or perhaps Senator Levin at the beginning, that we 
believe in as a country.
    It sounds like an obvious proposition, but it does bear 
repeating, because, frankly, there have been times, recently, 
when reviewing prior testimony taken here and in another body, 
when it has seemed that there are those who believe that the 
military commission system rules have to ensure convictions. I 
believe they have to ensure fairness.
    The basic approach of our discussion draft is to strongly 
tilt military commissions in the direction of general courts-
martial, which are the felony-level military court. This is 
consonant with the current Manual for Courts-Martial, which is 
an Executive order promulgated by the President. The preamble 
to the Manual for Courts-Martial states that military 
commission procedures will be ``guided by'' the rules for 
general courts-martial, while also recognizing the President's 
power to depart from that model.
    Our proposal seeks to cabin that power in several ways. 
First, it requires that the President state with particularity, 
the facts that he believes render it impracticable to follow 
the general court-martial model on any particular point. This 
is consistent or consonant with the decision of the Supreme 
Court.
    ``With particularity'' is a phrase that only a lawyer could 
love, but the words do have meaning. They send a message. They 
mean that the President will not have satisfied the 
requirements of the statute, as we envision it, if his 
justification is simply vague generalities that do not 
logically lead to the conclusion that a particular general 
court-martial rule or practice is impracticable. That, in fact, 
was a vice in the President's military order of November 13, 
2001, which I strongly recommend people reread. The President 
made certain findings, but the findings did not logically lead 
to the conclusion that he drew; namely, that it was 
impracticable to follow the usual norm. In fact, the usual 
norm, I might add, under Article 36(a) of the UCMJ now, is to 
follow Federal District Court practice. So, we're already 
moving one step away from the norm that the Congress put in 
place when it passed the UCMJ in 1950.
    In addition, our proposal doesn't contemplate a blanket 
presidential determination that general court-martial rules are 
impracticable across the board. You can't simply wave the wand 
over it and say ``Impracticable. Can't do it. Now I'll start, 
give me a clean yellow pad.'' That's not our concept. The 
President would have to particularize the respects in which the 
general court-martial model cannot work in a military 
commission setting.
    Our proposal also requires that Congress be notified of any 
determination of impracticability. That used to be a reporting 
requirement in Article 36(b) of the UCMJ. For better or worse 
there is no point in crying over spilled milk but Congress 
repealed the reporting requirement in 1990 on the theory that 
it was a paperwork reduction measure. That, I think, was 
unwise, and I hope that Congress will revisit that issue and 
require all changes to the Manual for Courts-Martial, not only 
those that relate to military commissions, but also those that 
relate to good order and discipline, courts-martial per se, be 
reported to you.
    We believe that a revived reporting requirement should be a 
reality, and that Congress should stand ready to review 
impracticability determinations and intervene, as necessary, 
with legislation, if that's what it takes.
    NIMJ's proposal provides that the President's determination 
that some rule applicable to general courts-martial is 
impracticable in the military commission context is subject to 
judicial review, and we've particularized what kind of judicial 
review. We've proposed two standards. They're familiar 
standards under the Administrative Procedure Act. Is it an 
abuse of discretion, or is it contrary to law? These are very 
real requirements. They're familiar to practitioners of 
administrative law. They're familiar to Federal judges. They 
are not window dressing. Whether any particular 
impracticability determination violates either of those tests 
would be litigable in the course of review of a military 
commission case. By that I mean by the United States Court of 
Appeals for the Armed Forces.
    The NIMJ proposal singles out one part of the UCMJ as 
inapplicable to military commissions. That's Article 32. That 
is the provision that prescribes a pretrial investigation as a 
precondition to any general court-martial.
    We recognize that Congress may conclude that other parts of 
the statute may also be dispensed with. For example, Congress 
might conclude that the right to select your own uniformed 
lawyer, the so-called individual military counsel, or IMC under 
Article 38(b)(3)(B) could be viewed as a luxury that can wisely 
be dispensed with in the context of military commissions. 
Similarly, Congress might conclude that the first stage of 
appellate review--namely, review by the Army, Navy, Air Force, 
or Coast Guard Court of Criminal Appeals could be dispensed 
with. Instead of having the kind of layer cake that we 
currently have for general court-martial, you would go directly 
from the military commission up to the U.S. Court of Appeals 
for the Armed Forces over on E Street.
    If Congress did that, I think that you would have to make 
some adjustments to the Court of Appeals' jurisdiction to make 
sure that they could review a sentence appropriateness, as well 
as to determine whether it's legal. There are certain 
limitations currently in Article 67 of the UCMJ that you might 
have to expand if you dispensed with the first tier of 
appellate review. I'd be happy to go over it. I don't want to 
get too much into the details now.
    Now, this is important. Just as there are some court-
martial-related provisions of the UCMJ and the Manual for 
Courts-Martial that Congress might be disposed to affirmatively 
direct not be applied to military commissions and then, of 
course, you'd never have to have an impracticability 
determination by the President. The committee might also 
conclude that there are some provisions that are so critical to 
public confidence in the administration of justice that they 
ought to be placed beyond the President's power to make 
exceptions on grounds of impracticability. For example, should 
there be an explicit ban on the use of coerced testimony, as 
Senator Graham and I were having a colloquy on before? There is 
an explicit ban currently in Article 31(d) for courts-martial. 
Should the right to see all the evidence the Government intends 
to put before the trier of fact be immortalized in the statute, 
or the right of self-representation, or the right to attend 
every session? We didn't include such a provision, a kind of 
military-commission due-process floor, in our discussion draft. 
However, I have to say that because some of the testimony that 
has been presented on behalf of the administration in the time 
since July 6 has seemed to reflect a measure of intransigence, 
the committee may not be disposed to leave the question of 
departures from the court-martial norm as much in the 
President's hands as our original proposal does, even with the 
substantial procedural protections we've recommended. The 
committee's in a better position than we are to make that 
determination, although I'm confident that it's going to have 
suggestions from a variety of sources. But it does seem fair to 
state that, to this extent, at least, the situation is somewhat 
different from what it was at the time that we framed our 
proposal.
    The final comment that I'd like to make responds to one of 
the remarks that a fellow panelist made, and I think it's 
clearly on people's minds, having to do with Common Article 3. 
We haven't gotten into Common Article 3 in our presentation, 
but the suggestion that the terms of Common Article 3, which 
people should, it's always good to look back at the statute; 
so, too, it's always good to look back at the Geneva 
Conventions and see actually what it says. The suggestion that 
these terms are too amorphous to form a basis for conduct by 
our personnel, because that is the anxiety that people have 
expressed, I think, has to be taken with a grain of salt. Let 
me give the specifics why.
    First of all, we have a very intelligent and well-trained 
and educated military force--better, stronger, smarter, better-
read than probably at any time in our history. We currently 
impose on our military force a variety of criminally punishable 
prohibitions. For example, Article 88 of the UCMJ, which 
applies only to commissioned officers, punishes military 
officers if they speak contemptuously of the President, certain 
other high officials, and this body. Well, what is 
``contemptuous''? Is that a term that is too vague? Our legal 
system doesn't think so, and hasn't, for many, many decades. 
Our UCMJ prohibits, under criminal penalty, dereliction of 
duty. I'm referring to Article 92, paren 3. Is ``dereliction of 
duty'' any vaguer or more amorphous than the kinds of 
prohibitions that are found in Common Article 3?
    Article 93 is particularly pertinent to this conversation. 
Article 93 is the punitive article dealing with cruelty and 
maltreatment. It provides any person subject to this chapter, 
which is to say our personnel, who is guilty of cruelty toward, 
or oppression or maltreatment of, any person subject to his 
orders shall be punished as a court-martial may direct. The 
Congress of the United States and the President, in approving 
the UCMJ and in promulgating the manual, have felt that that is 
a workable, comprehensible prohibition.
    Article 133 prohibits, under penalty of criminal sanction, 
conduct unbecoming an officer and a gentleman. Is that too 
vague?
    Article 134, which applies to every person in uniform, 
prohibits conduct that is prejudicial to good order and 
discipline. Is that too vague?
    My point, obviously, is that before anyone leaps on the 
bandwagon that Common Article 3 lacks the precision that we 
associate with criminal sanctions, a proposition that all of us 
obviously respect, I think some very careful thought should be 
given to the matter.
    Mr. Chairman, it is a privilege to have been able to speak 
to you this morning.
    [The prepared statement of Mr. Fidell follows:]

                 Prepared Statement by Eugene R. Fidell

    Mr. Chairman, Senator Levin, and members of the committee: Thank 
you for affording the National Institute of Military Justice (NIMJ) an 
opportumty to testify this morning on the important subject of military 
commissions. I have a few points I would like to make in these opening 
remarks, but I will keep it brief in. order to maximize the time 
available for questions.
    First, a word about NIMJ. NIMJ was founded in 1991. Our directors 
and advisors include professors of law at several nationally-known law 
schools as well as private practitioners. All but one--a former Federal 
prosecutor--has served on Active-Duty, up to and including brigadier 
general and rear admiral. We have two overall objectives: to foster the 
fair administration of justice in the armed services, and to improve 
public understanding of military justice. NIMJ circulated a discussion 
draft on July 6, 2006.
    We do not feel that that draft is the last word, but we think it is 
a sound starting point for your consideration. The draft reflects our 
respect for the basic integrity of the Uniform Code of Military Justice 
(UCMJ) and the traditional interplay of the executive and legislative 
branch's shared responsibility for military matters.
    NIMJ believes that the highest priority for military justice--
either the subset that concerns good order and discipline within the 
armed services or the other subset with which we are dealing today that 
concerns how we prosecute crimes by an adversary--is the achievement of 
public confidence in the administration of justice. ``Public confidence 
in the administration of justice'' is not another way of saying we have 
100 percent assurance--mathematical certainty--that every person who is 
charged will be convicted. Rather, it is a shorthand way of summarizing 
all of those deeply held values--values that reflect the commitment of 
the generation of the Founders to due process of law and fundamental 
fairness. This sounds like an obvious proposition, but it bears 
repeating because there have been times, reviewing prior testimony 
taken here and elsewhere, when it has seemed that there are those who 
believe the military commission system rules must ensure convictions. I 
believe they must ensure fairness. If that means some who are guilty 
may not ultimately be convicted, that is the price we pay for having a 
legal system.
    The basic approach of NIMJ's discussion draft is to strongly tilt 
military commissions in the direction of general courts-martial, our 
felony-level military court. This is consonant with the current Manual 
for Courts-Martial, which provides that military commission procedures 
will be ``guided by'' the rules for general courts-martial, while also 
recognizing the President's power to depart from that model. Our 
proposal seeks to cabin that power in several ways.
    First, it requires that the President state with particularity 
those facts that render it impracticable to follow the general court-
martial model on any particular point. This is consonant with the 
decision of the Supreme Court in Hamdan. ``With particularity'' is a 
phrase only a lawyer could love. But those words do have meaning. They 
mean the President will not have satisfied the requirement of the 
statute if his justification is filled with vague generalities that do 
not logically lead to the conclusion of impracticability. That was a 
vice in the President's Military Order of November 13, 2001, which made 
findings that were nebulous and disconnected from the order's wholesale 
deviation from Federal district court practice (which is the overall 
default model under Article 36 of the UCMJ).
    Moreover, the proposal does not contemplate a blanket presidential 
determination that general court-martial rules are impracticable 
across-the-board. These determinations must address specific 
provisions.
    Second, our proposal requires that Congress be notified of any 
determination of impracticability. There used to be a reporting 
requirement for changes to the Manual for Courts-Martial, but it was a 
dead letter. NIMJ believes this new, revived reporting requirement 
should be more of a reality, and that Congress should stand ready to 
review impracticability determinations and intervene as necessary with 
legislation.
    Third, NIMJ's proposal provides that the President's determination 
that some rule applicable to general courts-martial is impracticable in 
the military commission context is subject to judicial review for abuse 
of discretion or on the ground that it is contrary to law. These are 
real requirements, familiar to practitioners of administrative law as 
well as to Federal judges. They are not window-dressing. Whether any 
particular impracticability determination violates either of those 
tests would be litigable in the course of direct review of any military 
commission conviction.
    The NIMJ proposal singles out one part of the UCMJ as inapplicable 
to military commissions. That is Article 32, which deals with the 
pretrial investigation that is a precondition for a general court-
martial. We recognize that Congress may conclude that other parts of 
the statute may similarly be dispensed with. For example, Congress 
might conclude that the right to individual military counsel-the right 
under Article 38(b)(3)(B) to select your own uniformed defense 
counsel--is part of the deluxe version of military justice that need 
not be extended to enemy combatants in the context of a military 
commission. Similarly, Congress might conclude that the fIrst stage of 
appellate review review in a service court of criminal appeals--is 
inessential in military commission cases, although if it did so, I 
would recommend giving the United States Court of Appeals for the Armed 
Forces authority to review military commission findings and sentences 
on the same broad grounds currently applicable to court of criminal 
appeals review of courts-martial. This would require an amendment to 
Article 67.
    Just as there are some court-martial-related provisions of the UCMJ 
and the Manual for Courts-Martial that Congress might be disposed to 
affirmatively direct not be applied to military commissions (thus 
rendering an impracticability determination unnecessary), the committee 
might also conclude that some provisions are so critical to public 
confidence in the administration of justice that they should be placed 
beyond the President's power to make exceptions on grounds of 
impracticability. For example, should there be an explicit ban on the 
use of coerced testimony in military commissions (see Article 31(d), 
UCMJ), or should the right to see all evidence the government seeks to 
put before the trier of fact, or the right of self representation or 
the right to attend all sessions be stated in so many words?
    NIMJ did not include such a provision--a kind of military 
commission due process floor--in our discussion draft. However, some of 
the testimony that has been presented on behalf of the administration 
has seemed to reflect such intransigence that the committee may not be 
disposed to leave the question of departures from the courts-martial 
norm as much in the President's hands as our proposal does, even with 
the substantial procedural protections we have recommended. The 
committee is in a better position than we are to make that 
determination, but it does seem fair to state that to this extent the 
situation is somewhat different from what it was at the time we framed 
our proposal.
    My final remark has to do with the process by which determinations 
of impracticability are arrived at. I will leave it to others to 
discuss how the Defense Department conducts its internal deliberations, 
but I do believe public confidence in the end product would be directly 
served if any proposed departures from the general court"martial norm 
(and the supporting detailed justification) were made available in 
draft so the public can comment on them. The Department already does 
this when it recommends changes in the Manual for Courts-Martial, see 
DOD Directive 5500.17, MCM (2005 ed.), App. 26, at A26-8 (\ E2.4), and 
its failure (with limited exceptions) to use notice-and-comment 
procedures when promulgating military commission rules has been a 
continuing disappointment. See Peter Raven-Hansen, Detaining Combatants 
by Law or By Order? The Rule of Lawmaking in the War on Terrorists, 64 
La. L. Rev. 831 (2004); Eugene R. Fidell, Military Commissions and 
Administrative Law, 6 Green Bag 2d 379 (2003).
    NIMJ appreciates the opportunity to participate in this hearing. I 
will be happy to respond to questions and to work with the committee as 
consideration of these important matters continues.
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    
      
    
    

    Chairman Warner. We thank you for another series of 
excellent presentations.
    At this time, we've been joined by Senator Saxby Chambliss. 
Thank you, Senator, for joining us. Senator Cornyn must depart. 
We are following the rule that as Senators come, they may ask 
their questions, Senator Chambliss and Senator Cornyn, would 
you like to ask your questions?
    Senator Cornyn. I would. Thank you, Mr. Chairman, for 
letting me do so at this time.
    Thanks to each of you for being here and sharing your 
expertise with us.
    I recognize that some of you would advise against this, but 
let me just ask you, as a matter of Congress's authority--I 
read the Hamdan decision as saying that the Congress could, if 
it wished, ratify Military Order 1 and essentially address the 
authority concerns. The lack of participation by Congress, when 
it comes to creating the military commissions, and the conflict 
with the UCMJ, which Congress is also responsible for writing, 
which it could amend, as well. Assuming that's correct, I would 
like to hear from the witnesses what additional rights, what 
additional privileges, what additional guarantees, other than 
those already contained in Military Order 1, do you think are 
appropriate for unlawful combatants, like al Qaeda?
    Mr. Fidell. I'll keep talking if I have to.
    Senator Cornyn. I want you to be specific here, if you can, 
because we're going to have to address this with some 
specificity.
    Chairman Warner. Let's make it clear, Senator, that your 
question is directed to the entire panel, and anyone who so 
desires to participate may do so.
    Senator Cornyn. That's correct.
    Senator Levin. Senator Cornyn, I'm wondering if I could 
just ask you if you are referring to those who are being 
charged with crimes so that we could keep our record clear.
    Senator Cornyn. I'm asking if Congress saw fit to ratify 
Military Order 1 in response to the Hamdan decision, what, if 
any, additional rights, privileges, would you recommend that we 
provide for unlawful combatants, like al Qaeda, other than 
those presently included in Military Order 1, if you have any. 
If you don't have any, I'd like to know that, as well.
    Mr. Mernin. Senator, if I may, I could offer you some 
examples without purporting to give you an exhaustive list. But 
certainly with respect to rules of evidence, the Association 
would have no objection, in principle, to permitting more 
flexible rules of evidence, consistent with battlefield 
conditions and international standards, as compared to a strict 
UCMJ courts-martial recitation. But much more specificity is 
necessary than this wide-open concept of ``all evidence of 
probative value.'' It should go without saying that the 
standard used--it should be easily understood and applied by 
the participants in the military commission process, that it 
serve the interests of justice, that it suggest that we want to 
adhere, as closely as possible, to the existing standards. The 
accused must have access, in some form, to evidence supporting 
the charges against him.
    Senator Cornyn. I'm sorry, what existing standard are you 
referring to?
    Mr. Mernin. I would say the existing standard of the UCMJ 
and the Manual for Courts-Martial.
    Senator Cornyn. Oh, so you're starting from an opposite 
perspective than what my question contemplated. I was asking, 
assuming we start from Military Order 1, how would you build 
out, or up, and expand the rights provided to unlawful 
combatants, other than those included there, not how would we 
carve out provisions in the UCMJ?
    Mr. Mernin. I understand your complaint about the way I 
prefaced my answer.
    Senator Cornyn. Excuse me. It wasn't a complaint. I am 
trying to just clarify.
    Mr. Mernin. I was just trying to set up, really, what I 
would guess is a list. The accused ought to have access to 
evidence supporting the charges against him that's offered to 
the court or the commission; and civilian defense counsel, with 
the opportunity to obtain a security clearance, should have 
access to evidence admitted against the accused, and all 
potentially exculpatory evidence. Those are not provided for in 
the existing commission. There's a procedure in our Federal 
courts that allows for the redaction, for security purposes, of 
evidence. Everyone who needs to see the redacted evidence gets 
to see it. The court sees the same redacted evidence as the 
defendant. Evidentiary disputes would need to be ruled on by 
the presiding legal judge before the evidence was made 
available to the members of the commission.
    With respect to appeal, I would like to see the Court of 
Appeals for the Armed Forces, along the lines, perhaps, of what 
Mr. Fidell discussed, involved in hearing appeals from the 
military commissions.
    Senator Cornyn. I have about 2 minutes remaining of my 
time, and I would ask you, please, to supplement your answer in 
writing, if you could, because I really do want to know.
    Mr. Mernin. Yes, sir.
    [The information referred to follows:]

    The Association endorses the use of the Uniform Code of Military 
Justice and the Manual for Courts Martial as the starting points of any 
legislation establishing commissions. Accepting Senator Cornyn's 
premise that is, Congress were to ratify Military Order 1, we refer to 
the detailed testimony of all members of the panel as to specific due 
process and fair trial concerns which ought to be addressed in any 
commissions which are adopted.

    Senator Cornyn. But let me ask Dr. Carafano. The DOD has 
looked at the UCMJ as the starting point, and tried to evaluate 
how many revisions or amendments would have to be made to the 
UCMJ in order to make it appropriate for the military 
commission of an unlawful combatant to which the Geneva 
Conventions, broadly speaking, do not apply. A preliminary 
assessment is that 110 rules for court-martial would have to be 
changed, 73 rules of evidence, and 145 to 150 UCMJ articles. 
Without asking you to vouch for those particular figures, I 
know you believe that the UCMJ is not an appropriate starting 
point for our labors here, and would you please explain why?
    Dr. Carafano. I could certainly understand why they would 
reach that conclusion. Obviously, the Government always has a 
dual responsibility, to provide security for the individual and 
to provide security for the state. Any legal system that you 
devise has to measure both those. Most legal systems, 
particularly the UCMJ, start with the notion that they've been 
created to look after the rights of the individual, and then 
national-security matters and military necessity are then 
layered over that. You could argue the UCMJ is actually a 
better legal system than many states in the world have in their 
regular judicial codes.
    When you begin with the premise that you're in a war, and 
national security concerns are the start point of your concern, 
and then you want to add in what appropriate protections there 
are to make sure there's legitimate due process and you're in 
compliance with Common Article 3, you're obviously going to 
have enormous difficulties taking a system which was designed 
to do exactly the opposite of what you're trying to do, which 
is to make sure national security is taken care of first. So, I 
could understand that it would be a very complicated and 
difficult process.
    Senator Cornyn. Let me, if I may, ask just one concluding 
question.
    Chairman Warner. Senator, feel free to take a minute or 
two. Yes, this is a very important colloquy.
    Our distinguished colleague comes from the bar. He had a 
very distinguished career in his State, and now he's on the 
Judiciary Committee, which also is looking at this issue.
    So, therefore, we value your contribution. Take such time 
as you need.
    Senator Cornyn. Mr. Chairman, it's the State Bar of Texas, 
not just any bar. [Laughter.]
    Chairman Warner. Did you not join the Bar of the Supreme 
Court?
    Senator Cornyn. I did as well.
    Chairman Warner. Well, then, you did get out of Texas and 
recognize some other institutions. [Laughter.]
    Senator Cornyn. Thank you.
    Chairman Warner. Yes.
    Senator Cornyn. Thank you for that point. It's entirely 
correct.
    Now, clearly, no one is suggesting that these detainees, 
unlawful combatants, are entitled to anything less than humane 
treatment. But in 1970 President Reagan, I know, at one point, 
when the 1977 Protocol 1 was proposed that would have extended 
full Geneva protections in all respects to terrorists, rejected 
that adoption of the Geneva Convention, arguing that it would 
be the antithesis of humane and civilized outcome, because it 
would have actually encouraged more terrorism. In other words, 
the principle of reciprocity under the Geneva Conventions seems 
to me to be the most important one. If we treat their POWs in a 
certain way, they're more likely to treat our POWs in a certain 
way. But in the absence of the passage of the 1977 Protocol 1, 
which would have extended POW rights to terrorists, the way I 
read the Court's opinion is that we have to provide a regularly 
constituted court, rather than specify the particular 
procedures that needed to apply, other than they should afford 
the judicial guarantees that are recognized as indispensable to 
civilized people.
    With that sort of predicate, let me just express the same 
concern that Senator Graham expressed. I know your focus has 
been, and it's been quite appropriate, on what rights and 
privileges are accorded to an unlawful combatant in a military 
commission. But there's also the essential concern of what 
impediments might we inadvertently create to our ability to 
gain actionable intelligence that will prevent, detect, and 
deter terrorist attacks or provide actionable intelligence that 
will save coalition lives on the battlefield.
    That's my last question. I'd be glad to hear any comments.
    Mr. Fidell. I can comment briefly. I was a prosecutor as 
well as a defense counsel when I was in the Service. There are 
times when Government has to make some hard choices. For 
example, when granting immunity, I think you were the attorney 
general at one time, am I correct on that? So there are times 
when a prosecutor has to make some hard choices. There are 
times when the Government may be in a position to have to make 
choices, for example, between using somebody in custody as an 
intelligence source, as opposed to a potential defendant. 
That's at least the beginning, Senator. The current environment 
that we're talking about is not, I think, immune to that kind 
of analysis. There are simply going to be situations where if 
you need to do things for the purpose of gathering 
intelligence, that may impact on your ability to bring down the 
legal system on that particular individual.
    Dr. Carafano. I would just like to return to your point, 
because I think it's germane to how we interpret Common Article 
3. I think what we have to realize is that Common Article 3 was 
framed intentionally the way it was. It wasn't because they 
didn't have a good editor and they were vague and evasive. They 
framed that because they realized that in the application of 
war, you have different countries, different legal systems, 
different requirements, that it had to be intentionally broad 
so states had the flexibility to implement judicial proceeding 
in the manner in which suited them, both to meet both their 
national security interests and the interests of the rule of 
law. That's why I think conceptually something like a military 
commission was written that way so things like military 
commissions would be applicable.
    Senator Cornyn. Thank you, Mr. Chairman.
    Senator Levin. Mr. Chairman?
    Chairman Warner. Yes.
    Senator Levin. I would have a request. Senator Cornyn has 
raised a very, very significant point which I think would be 
helpful for us. Apparently, the DOD has identified and I forgot 
the exact numbers, John, but it was something like 171 changes 
that need to be made in the articles to bring it to the 
commission procedures.
    Senator Cornyn. Mr. Dell'Orto, in response to Senator 
Levin's question, testified before the House Armed Services 
Committee. I asked this general question when the JAGs were 
here. But the numbers were a preliminary assessment. One 
hundred ten rules for court-martial would have to be changed, 
73 rules of evidence, and 145 to 150 UCMJ articles.
    Senator Levin. That is a very valuable effort on the part 
of the DOD. I would ask the chairman if we could get the list 
from the DOD of those items, because that would make an 
extremely valuable checklist for Congress to look at. I just 
checked with staff and I don't believe we have those three 
lists, I guess it would amount to. I'm wondering, Mr. Chairman, 
could we ask the DOD for those three lists.
    Chairman Warner. Unquestionably, we'll do that.
    Could you leave a copy of that piece of paper with us 
today? You have referred to it twice now. It's very helpful.
    Mr. Fidell. Mr. Chairman?
    Chairman Warner. Yes.
    Mr. Fidell. Senator Levin's question, building on Senator 
Cornyn's comment, reminds me that there is another document 
that may also be helpful to the committee. It is my 
understanding that the DOD, some time ago, prepared a Manual 
for Military Commissions.
    Chairman Warner. Have they released it?
    Mr. Fidell. No, Mr. Chairman, as far as I know that has not 
been released.
    Chairman Warner. So, it is in existence?
    Mr. Fidell. I believe it is in existence.
    Senator Levin. A draft manual?
    Mr. Fidell. Sir?
    Senator Levin. A draft manual or what?
    Mr. Fidell. A manual for military commissions.
    Senator Levin. Was it adopted?
    Mr. Fidell. Not that I know of.
    Senator Levin. But it was in draft form or something?
    Mr. Fidell. That's what I imagine, Senator Levin.
    Chairman Warner. We'll probe that.
    Mr. Fidell. If I were a member of the committee, I would 
certainly be interested in seeing that.
    Chairman Warner. That is a very helpful reference point for 
us. We should look at it. I'm sure that they would share with 
us their preliminary work on the commission structure which 
they envisioned.
    All right. Senator Chambliss, do you wish to ask your 
questions at this point time?
    Senator Chambliss. Thank you, Mr. Chairman. I just have a 
couple of questions.
    Chairman Warner. Yes.
    Senator Dayton, if you so desire to ask some questions, at 
the appropriate time, we'll recognize you after Senator 
Chambliss.
    Senator Dayton. I'll have to find somewhere to leave to so 
that I can ask my questions.
    Chairman Warner. Good. Well, that's all right. Senator 
Levin and I are going to, of course, stay throughout the 
panels, but go ahead.
    Senator Chambliss. Thank you, Mr. Chairman. Let me thank 
our witnesses for being here today.
    We had a very interesting hearing last week on this same 
subject, as I think all of you know, and very distinguished 
panelists, who come from primarily military backgrounds, that 
testified. In that hearing, we start from a basic premise, not 
one that I necessarily would hope we would have to start with 
but, as a lawyer, I believe in basic rights of all criminal 
defendants, irrespective of where they come from. The fact here 
is that even though we know how our prisoners are treated once 
they're captured, there is no rule of law that governs them 
other than to mutilate, behead, and torture them in every way 
possible by the enemy combatants that we face today, it's 
incumbent upon us to set forth certain standards that obviously 
comply with our rules and our laws. We have to treat the enemy 
in a much more humane way than, frankly, our soldiers are 
treated.
    That having been said, there is going to be a fundamental 
issue for this committee to decide as to which road we go down. 
Do we look at taking our current criminal justice system and 
figuring out some way to make this particular type of situation 
mesh with it, or do we look to the military side? I think the 
military side is obviously more preferable. Once you get there, 
as some of you have already delineated, there are a couple of 
different paths down which we might go. One is taking the UCMJ 
and trying to determine whether or not we can use it as a basis 
and bring in some other advantageous measures on both sides 
that might make it fit the situation. Or, do we establish some 
sort of military commission or tribunal that is somewhat of a 
hybrid, but, at the same time, serves the valuable purpose for 
a very difficult situation? I tend to go down that road. I 
would hope, as was discussed last week, that we can take the 
best of laws and rules within the UCMJ, our current criminal 
system, and the international system to incorporate and come up 
with a system that is not complicated, does not rewrite 
military law, and does not rewrite the way in which we deal 
with the enemy, both from an interrogation and a prosecution 
standpoint.
    My question to you is this. I asked this question last week 
to the panel, and I will tell you that there are certain things 
that will jump out at you. As we look at trying to establish a 
military commission or military tribunal are there certain 
things within current military law that you can think are 
issues that will have to be addressed in a more significant way 
within some sort of criminal or combatant tribunal or 
commission that we establish?
    The examples that I will give you are this. It was brought 
up that the issue of chain of custody has to be dealt with. 
There are some very good rules within the UCMJ that will allow 
us to deal with that. The exclusionary rule is an issue that's 
going to have to be dealt with. There was a recommendation that 
we consider the adoption of the hearsay rule from the 
international court, because it is a little more liberal, 
frankly. Our hearsay rules are much more restrictive in the 
United States, apparently, than anywhere else in the world.
    Those are the types of issues that I have reference to, so 
I'd just throw that question open. Are there any issues that 
jump out at any of you relative to what we need to be thinking 
in terms of as we establish some sort of military commission or 
tribunal that we have to make sure that we deal with 
specifically?
    Ms. Bierman. Senator, if I may address the issue of the use 
of hearsay evidence in international criminal tribunals (ICT), 
I think that it's okay and, in some ways, maybe advisable to 
look to those rules about how to use secondhand testimony, but 
I would caution you to understand the full range of the rules 
the criminal tribunals use, and how they interact. So, it's not 
simply that they use a probative standard to allow in 
statements. If that were the case, then the current military 
commissions, the failed military commissions, would not have 
been so offensive. The ICT have a number of other features that 
interact with that, such as, for example, the structure of the 
decisionmaking body.
    The ICTs aren't a jury or a panel of military officers; 
they are judges, who are trained and have experience making 
fine evidentiary distinctions. There's a very clear prohibition 
on any evidence that's obtained by a violation of 
internationally recognized standards. The judges can decide the 
issue on their own about whether the evidence should come in or 
not. The party does not have to raise the motion. The judges 
can decide to disregard testimony after they've heard it. These 
are all very important features of that system that work with 
the way the ICTs allow in hearsay evidence that I think this 
body should consider to be an important part of that rule, if 
you go that direction.
    Ms. Massimino. Senator, if I could just add, your question 
underscores and in my written testimony I address some of these 
issues that you raised, but I would caution that just as when 
we first started down the road towards military commissions, 
there was a speculation, I think because we didn't know what 
kind of evidence we were going to have. There was some 
speculation about whether or not the rules would be too 
restrictive and what would we need to loosen in order to have 
trials of these kinds of individuals. We're beginning to 
engage, a little bit, in that kind of speculation again, 
without the benefit of a careful examination of the instances 
that we have now in front of us, of these very cases. Is the 
court-martial system really so inflexible that it can't deal 
with many of the issues that you've raised and that others have 
raised?
    I think it would be very useful for the committee to have a 
hearing that really addresses those issues, because they are 
the crux. Some of us say start from the UCMJ, because we think 
that's the most practical, for a number of reasons, others say 
start with the existing rules. One of the witnesses said it 
doesn't really matter where you start, it matters where you end 
up. We have to have a hundred-and-something changes to the UCMJ 
to then result in military commissions, but if those changes 
don't result in a system that's improved over the one we have, 
then I think we're going to end up in litigation instead of 
seeing terrorists brought to justice.
    I think that whether you approach this from either one end 
of the spectrum or the other, what we need to really jump to 
quite quickly is an analysis in detail. We need the 
administration's knowledge and cooperation in understanding 
what it is that the UCMJ system contains that they believe 
stands in the way of effective prosecutions of the kinds of 
people that we actually have in custody now.
    Mr. Fidell. Mr. Chairman, if I can comment to Senator 
Chambliss. On the question of hearsay, I personally am very 
interested in comparative law. I'm working on a textbook, 
actually, on comparative military justice, so it's a 
preoccupation of mine, in fact. But if you look at the rules, I 
believe, for the International Criminal Tribunal for Former 
Yugoslavia (ICTY) they have a rule that is widely misunderstood 
as opening the door to hearsay, in general. In fact, I'm just 
going to read 92b(a). ``A trial chamber,'' their trial court, 
``may admit, in whole or in part, the evidence of a witness in 
the form of a written statement in lieu of oral testimony which 
goes,'' here is where it gets interesting, ``to proof of a 
matter other than the acts and conduct of the accused as 
charged in the indictment.'' In other words, it's only on 
collateral matters that they've, by our standards, lowered the 
bar.
    So, again, it's a cautionary note. I'm all for finding out 
how things are handled in other legal systems, how the various 
international tribunals handle these issues. But you have to 
really go in and root around a little bit sometime.
    Also, this is a theme that I think a number of us have 
mentioned. I really hope that people will not shortchange the 
body of jurisprudence that the Court of Military Appeals, now 
the Court of Appeals for the Armed Forces, has generated in the 
last 55 years. That is a highly practical court. They are very 
aware of military exigencies. They have a system that has 
proven to be workable in some very forbidding environments. 
They're quite practical people. If you look at the way they've 
handled, for example, the need for Article 31 warnings, I'm 
sure that's one of the things that is on your list of concerns, 
they've distinguished between interrogations that are conducted 
for law enforcement or disciplinary reasons, on the one hand 
and interrogations for operational reasons, on the other. These 
are very practical people.
    Chairman Warner. I think you made a valid point there, and 
in the final product, should make reference, perhaps, that law 
has a certain binding effect, because it is a body of law drawn 
that could be helpful.
    Any further questions, Senator?
    Senator Chambliss. I have one.
    Chairman Warner. Yes.
    Senator Chambliss. I don't think it will require a lengthy 
answer. If it does, I'd be happy to take them in writing.
    Does anybody have a problem with the appellate process 
that's taking place under something akin to the appellate 
processes set forth in the UCMJ?
    Mr. Fidell. Just the reverse I think.
    Senator Chambliss. Yes, I notice in your testimony you 
talked specifically about that.
    Mr. Fidell. Right. What I think, before you were here, 
Senator, I had testified, in my prepared statement, that you 
could probably consider dispensing with one tier of the 
appellate review, the one at the Court of Criminal Appeals 
level, and just go directly from the military commission to the 
Court of Appeals for the Armed Forces on E Street. You don't 
really need that additional tier in the middle, although you 
might have to tweak the powers of the Court of Appeals to make 
sure people are getting thorough review of things like 
sentences and whether the evidence added up to guilt, to proof 
beyond a reasonable doubt.
    Senator Chambliss. Okay.
    Thank you very much, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator.
    Senator Cornyn, had you finished, also?
    Senator Cornyn. I did, thank you.
    Chairman Warner. Senator Dayton, do you wish to interject, 
at this time, a question?
    Senator Dayton. Thank you, Mr. Chairman. Maybe if I could 
we would hear from the last witness, and then I'd reserve my 
right to ask questions.
    Chairman Warner. Fine.
    Senator Dayton. After the two of you, I just want to say, 
this is an outstanding hearing. I thank you, Mr. Chairman, for 
holding it.
    Chairman Warner. Thank you.
    I appreciate the indulgence of all members of the 
committee. This is somewhat of an unusual process, but we have 
just so much going on in the United States Senate this morning 
that our members are scattered many directions.
    Now, you've been very patient there, Mr. Mernin, Chair, 
Committee on Military Affairs and Justice and the Association 
of the Bar of the City of New York. I'm delighted that the Bar 
has allocated a portion of its resources and talent to look 
after this subject.

   STATEMENT OF MICHAEL MERNIN, CHAIR, COMMITTEE ON MILITARY 
AFFAIRS AND JUSTICE, THE ASSOCIATION OF THE BAR OF THE CITY OF 
                            NEW YORK

    Mr. Mernin. Senator, we're delighted to be here. Thank you 
for the opportunity--Senator Levin, also--to appear today on 
behalf of the New York City Bar Association.
    The Association is an independent nongovernmental 
organization (NGO) with a membership of more than 22,000 
lawyers, judges, law professors, and government officials, 
mostly from New York City, but also from around the country, 
and from 50 other nations, as well.
    I'm here, because I'm chair of the Association's Committee 
on Military Affairs and Justice. We have, in the past, 
submitted reports and commentary to the committee's attention, 
and we hope that it's been helpful to you. My particular 
committee seeks to act as a bridge, to an extent, between the 
civilian and military legal establishments, to try to educate 
the civilian legal establishment about military law.
    The military justice system of this Nation is a model for 
the world. With that in mind, I would like to focus my remarks 
on the straightforward recommendation that we presented in a 
letter to all the members of this committee and other Senators 
and Members of the House several weeks ago. The recommendation 
is born of the complexity of the issues, which I think has been 
evidenced by the series of probing questions we've been met 
with today. These are very sensitive issues.
    With that in mind, I'd like to note that there's a great 
wealth of expertise available. Our proposal is that, in the 
wake of this Hamdan decision, that Congress ought to seek to 
formally empanel an advisory commission or panel with a mandate 
to advise Congress and its committees about the appropriate 
means to establish a military commission system that would 
respond in a very transparent, nonpartisan, depoliticized 
manner, consistent with our national values, to the Supreme 
Court's decision. We believe that legislation authorizing the 
creation of a 10- or 15-member advisory panel could be quickly 
passed, would be relatively simple to draft, and there are 
existing analogs, which we pointed out in our letter of a 
couple of weeks ago, in other areas.
    Once authorized, it's not the sort of group that would 
require a great deal of staffing. They could begin their work 
immediately and, I think, without delay, provide immediate 
useful advice and drafting to Congress. Our idea is that this 
group would be composed of, for instance, the retired JAGs and 
law professors, the great many practitioners, such as Mr. 
Fidell and members of the NIMJ, who would be able to operate 
and draft commission legislation and present it for review, and 
the Senate and entire Congress would have the knowledge of 
knowing that great people with the wealth of experience and 
expertise had been working diligently on this.
    As an alternative, even without legislation, I would 
suggest there might be a way for this committee to achieve that 
goal without that formality. To make a special effort to draw 
upon the available expertise across the country of 
practitioners and retired JAG officers who would be more than 
willing to serve their country in this fashion, by trying to 
make this the best piece of legislation possible.
    Chairman Warner. If I may comment, and then I would invite 
my colleague to have his views, Senator Levin and I have been 
privileged to serve our States as Senators for 28 years, and we 
have seen a good deal of history. I have to be honest with you. 
The current Congress is due to expire at the end of this 
calendar year. We have but about 2\1/2\ weeks left before what 
we call the August recess. We resume in September for several 
weeks, and then we discontinue right at the 1st of October. 
While we may come back for tidying up a few details, we're 
looking at a very short period of time.
    Now, that's Congress. The Supreme Court has directed the 
other two branches of the Government to turn to and solve this 
problem, because we have a lot of contentious viewpoints with 
regard to how the current system is operating, or not 
operating, in the case of the commission. I feel that we're 
going to do our best, as a committee, the Judiciary Committee 
is working on this, and the Intelligence Committee may work on 
a piece of this, because they want to make certain that our 
intelligence system can go forward.
    I don't mean to be disrespectful, I do not see the 
opportunity to have what you have suggested. The situation has 
to be addressed as quickly it can. We have to rely on the 
manner in which Congress does its business and presently 
constituted. We're going into this hearing this morning to get 
outside advice. I appreciate the advice we've received. I don't 
think it's practical. We're going to have to do the best we 
can.
    So, I do hope you will continue to participate, recognizing 
I don't think we can get a legislative panel of advisors set 
up, nor really extend much beyond what we're going to do here 
in the several hearings.
    But, Senator Levin, do you have any comments?
    Senator Levin. I think I know what I would do if I were by 
myself deciding this, and that would be to establish just a 
panel for this committee, ask them to report back to us within 
30 days so that we could take it up in September. On the other 
hand, I'm not sure that's where the majority of the committee 
is, and I'm not sure such a panel could report back to us in 30 
days.
    Chairman Warner. Well, it's the practicality. I wouldn't 
dismiss it out of hand, but we haven't discussed that. We often 
discuss, and we always do.
    Senator Levin. Right. Right. Our chairman is doing a 
terrific job under a very difficult time constraint here.
    We have a checklist, in effect, from the administration, 
apparently, that's been created. That's going to be useful. 
What I would like from our panelists, for the record, depending 
on what your starting point is, where would you change based on 
practicality and necessity the UCMJ and the court-martial 
rules? Give us the list of what you would acknowledge, in the 
case of some of you, are needed changes from that baseline for 
a commission to operate in the context that we're talking 
about. Or, should you prefer to start with the Executive Order 
1, what do you believe would need to be changed or added to 
that Executive order specifically in order to meet the Supreme 
Court's requirements or the fundamental due-process rights?
    We have such talent here and obviously there's a lot of 
other talent that's not represented on either of these panels 
that we could solicit. It seems to me, to give us specific 
recommendations, depending on your baseline, from that baseline 
that would be needed.
    I'd leave it at that, and I'd ask our witnesses whether 
they'd be willing to do that, and then ask our chairman whether 
or not he feels that soliciting that from these witnesses, our 
next panel, to get these specific lists, and others that might 
be interested in this subject, might help us design 
legislation. We know the administration's going to give us a 
proposal. Was it within the next couple of weeks we expect a 
proposal? Is that a fair statement?
    Chairman Warner. That is correct, yes.
    Senator Levin. Those lists from these witnesses and others 
would be very helpful to me.
    Chairman Warner. I had planned to do something similar to 
what you've suggested at the end of the hearing. I would want 
them to try and collate the two things, put them together. 
Because I'm of the view we're going to end up with a mix of the 
UCMJ and the commission concept. So, you don't have to give us 
a polished statute in legal language, but, ``This is what you 
should have'' and that is an essential part. As Senator Levin 
said, we'll provide you with what the Department gives us by 
way of their thought process of what might have to be changed, 
and so you can have the benefit and save a little time to go 
into the work.
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    Chairman Warner. We'll also see whether we can get that 
draft manual out, because I think it would extremely helpful. 
To the extent you can constitute among yourselves some sort of 
a working group, I mean, this is a nucleus. When I first walked 
into the room, one of the witnesses said, ``This should not be 
the end. This should be the beginning of our participation. We 
want to help you.''
    So, I'd join you, Senator Levin. I'd just broaden the 
tasking.
    Senator Levin. That would be fine.
    Yes. I would share that. I'm not sure which groups would, 
on their own, get together to try to put together a consensus 
list, but if they can do it, that would be more helpful to this 
committee. I agree with our chairman rather than getting 20 
different recommendations, if we could get two or three 
groupings of recommendations.
    By the way, Mrs. Massimino, I disagree with you if you were 
implying that you agreed with the testimony of last week that 
it's not important what the baseline is. It is relevant, 
because where you end up may depend, to some extent, on where 
you start from and what your baseline is. So, I don't agree 
with last week's testimony and if you were agreeing with it, I 
disagree with that comment of yours.
    However, it is still important where you end up. Obviously 
that is more important than where you begin. My point is that 
where you begin affects, probably, where you end up.
    Whether you want to start with Executive Order 1 or whether 
you want to start with the UCMJ, to me, it would be most 
helpful if there could be groups that would come together, if 
possible, as our chairman suggests. Tell us what changes you 
acknowledge would be needed for practicality and necessity in 
this kind of circumstance, and needed changes in the UCMJ, or 
deviations, or variations from UCMJ for these circumstances. I 
guess, from the perspective of those who want to start with the 
Executive Order 1 as the basis, what changes would you concede, 
rather than acknowledge, depending on your baseline, would be 
needed to meet the requirements of due process or the Court's 
opinion.
    I think what the chairman is suggesting, if we could get 
groups of interested parties here to come together on their own 
initiative and present specific lists to this committee so that 
we'd end up with two or three representing perhaps different 
approaches, that would be extremely helpful to us.
    Mr. Fidell. Mr. Chairman and Senator Levin, I think that's 
the type of thing that these groups--although there's a range 
of opinion along this table and in this room; there are other 
people who probably have a different viewpoint--but I think all 
of us will huddle after today's hearing and see what we can do 
to assist the committee in that respect. NIMJ will be there and 
actively providing whatever service we can in that respect.
    However, and here comes the bad part, and my fellow 
panelists will kill me when I say this, do you have a schedule 
in mind?
    Chairman Warner. Yes. It is anticipated that the work of 
this committee, and to the extent that other committees wish to 
make a contribution, should be in the hands of our leadership 
about the second week in September.
    Mr. Fidell. So, when do you need what I'll call the Warner-
Levin list?
    Chairman Warner. Senator Levin and I are going to continue 
to work this situation through the month of August from time to 
time. Personally, I've foregone some of my plans, because of 
the importance of this issue. I think my good friend usually 
does the same. So, we're in business. The committee will 
continue. We do not discontinue simply for an extensive 
recessive period of August.
    Senator Levin. How about 30 days? Could they try to get 
back to us then?
    Chairman Warner. Fine.
    Mr. Fidell. Thirty days from today.
    Chairman Warner. Whenever you can get to it. I would hope 
sometime in the middle of August, so that the two of us can 
disseminate this to our other colleagues and continue to work 
the problem. Then, don't think that's the end result.
    Mr. Fidell. Right.
    Chairman Warner. Between now and then, you'll obviously 
hear about what proposals the administration has in mind, and 
that would be, I think, important guideposts.
    Senator Levin. I know our chairman, because he's such a 
wise and fair man, is going to extend this same suggestion to 
other groups that want to make contributions. The more groups 
can come together in some kind of coalescing, it would surely, 
I think, help the committee. Not just people in the sound of 
our voice. I know that our staff would be letting other groups 
know that we've solicited these kinds of lists, if they want to 
join.
    Chairman Warner. I think the word will spread, you're 
correct.
    Mr. Fidell. This is like one of those situations where the 
DC Circuit has 50 amici from a particular industry, and tries 
to kick people so that they can join in one another's briefs a 
little bit. We'll try, I'm sure.
    Chairman Warner. All right. I think there's a lot of 
initiative in this panel, and I somehow feel that you've been 
established as a band of brothers and sisters now to get a job 
done.
    Senator Levin. I'll have a special request of you, Mr. 
Fidell, for your organization.
    Mr. Fidell. Here it comes. [Laughter.]
    Senator Levin. I'll wait until my round of questions, I 
guess. I don't know when that draft was created.
    Mr. Fidell. July 6.
    Senator Levin. July 6?
    Mr. Fidell. July 6 or 7, sir.
    Senator Levin. Yes. What I would like your organization 
specifically to address that are left open on your testimony, 
specifically kind of suggest that under existing circumstances 
you may want to take another look at certain issues. I'm going 
to ask that your organization look at different issues, re-look 
at some of the issues you've addressed, and look specifically 
at some that you didn't address, regardless of what all the 
others do.
    Mr. Fidell. Understood.
    Chairman Warner. Good.
    Now, you've been very patient. But you sort of started 
this.
    Mr. Mernin. That's right, Senator.
    Chairman Warner. We'll now restore part of your time.
    Mr. Mernin. I'll try to conclude it, as well.
    Increasingly cognizant of the time constraints we've been 
discussing, I'm not going to belabor the point, but I would 
emphasize what I think you've already taken to heart, and that 
is to make use of the outside expertise that's available to try 
to get this done and get it, as you say, right.
    Chairman Warner. If I could just interject.
    Mr. Mernin. Yes.
    Chairman Warner. This Nation is at war, and we must turn to 
and get a job done. We don't have the ability to extend this 
thing over a year's time and go through many, many hearings, 
because it's not fair to the men and women of the Armed Forces. 
This thing should be resolved. Particularly, our intelligence 
system has to know the parameters in which they can continue to 
work and do the absolutely essential function of collecting 
realtime intelligence for our forces. So, we're under unusual 
constraints.
    Mr. Mernin. Absolutely. I completely understand.
    I'm not going to discuss, at any length, Mr. Fidell's NIMJ 
proposal, other than to say the Bar Association has been 
looking at it. While we haven't done a full formal review of 
it, we applaud their efforts. In general, we approve the 
approach, and we believe the draft is the appropriate and good 
model for this committee to work from. We'll cooperate in that 
regard. Mr. Fidell's group and the Association have a good 
history of working together, so I know we'll work together.
    While we await the opportunity to comment on whatever 
formal legislation ends up coming out of this expedited 
process, I would just want to emphasize the few points and 
areas that the Association is particularly concerned with. 
First and I won't belabor it, because it's been covered at 
length. But we filed an amicus brief in the Hamdan case arguing 
for the application of Common Article 3, so we obviously are 
pleased to see the Court recognize that application.
    Chairman Warner. Do you have a copy of that brief with you 
today?
    Mr. Mernin. I do not, Senator, but we'll send one.
    Chairman Warner. Would you, at the earliest opportunity? I 
think it would be very helpful if we had the chance to look at 
that.
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    Mr. Mernin. We think it's clear the rules for the so-called 
noninternational conflicts refer to conflicts not between state 
parties, as distinct from conflicts between state parties, to 
which the entire Conventions apply. We just don't think that 
this is a point that should be in further dispute.
    Our customary international law and the past practice of 
our State Department and the DOD, the Armed Forces have long 
recognized the applicability of Common Article 3 as a minimum 
safety net for all armed conflict.
    So, it would be unfortunate, and almost inconceivable, I 
think, for the United States to be the first country in history 
to publicly turn away from a bedrock piece of the law of war, 
this fundamental part of the Geneva Conventions.
    Chairman Warner. I wouldn't want anyone to depart from this 
hearing thinking that, certainly in the context of what this 
committee's been doing, that we've manifested any indication 
that that would be the direction in which this committee is 
likely to go.
    Mr. Mernin. Absolutely.
    We also have particular concerns that there be transparency 
to the process, going forward. After the President issued the 
military order, of the 10 or so follow-on directives 
establishing the rules for commissions, we believe, only 1 was 
released for public commentary. We offered comments on that. It 
had to do with elements of the offenses. After the comments 
were received, the DOD declined to make the public comments 
available for review. So, we don't know what other public 
comments were ever received. Any sort of process of further 
rulemaking, we suggest, needs to be manifestly more transparent 
in order to guarantee that this gets done right.
    I think we talked a great deal about the Court of Appeals 
of the Armed Forces, so I won't reiterate, other than to say we 
understand that Congress has the flexibility on this point, 
that it probably would not, for instance, be an abridgment of 
Common Article 3 to deny military commission defendants the 
right to have a case heard at an intermediate appellate level 
with what Mr. Fidell referred to earlier. I would agree with 
that.
    I think, in response to Senator Cornyn, earlier, I 
discussed some particularly salient evidentiary issues that we 
have concerns about, so I'm not going to repeat those now. I'll 
refer to my prior remarks.
    On that note, I think I can conclude and thank you for 
considering our views. Any further help we can be, we will 
cooperate with other groups.
    [The prepared statement of Mr. Mernin follows:]

                  Prepared Statement by Michael Mernin

    Thank you for the opportunity to appear today on behalf of the New 
York City Bar Association. The Association is an independent 
nongovernmental organization with a membership of more than 22,000 
lawyers, judges, law professors, and government officials, principally 
from New York City, but also from around the United States and from 50 
other countries. I am here today as chair of the Association's 
Committee on Military Affairs and Justice, which has in the past 
submitted reports and correspondence to your attention on a variety of 
issues related to military law.
    I would like to focus on our straightforward recommendation which 
is born of the complexity of the matter at hand. In the wake of the 
Hamdan decision, we want to urge Congress to act quickly to establish 
an expert panel with a mandate to advise Congress and its committees 
about the appropriate means to establish a military commission system 
that would respond--in a transparent non-partisan manner--to the 
Supreme Court's decision. Legislation authorizing the panel's creation 
and the method of selecting its members would be relatively simple to 
draft, and there are existing analogs, in other areas, which we have 
highlighted in a recent letter to you. Once authorized, such a panel 
could begin its work without delay, and provide immediate useful advice 
and drafting assistance to Congress.
    On November 13, 2001, the President issued an Executive order 
establishing military commissions. The Military Order was adopted in 
haste without the active participation of the Judge Advocates General 
(JAG), consultation with Congress or public comment. The Association's 
Committee on Military Affairs and Justice issued one of the first 
reports studying that order. In our report, we offered criticism and 
advice as to how the commissions might better be structured to satisfy 
the competing goals of security, credibility and fairness, and we 
suggested that, instead of the proposed commissions, a forum based 
instead on the Uniform Code of Military Justice (UCMJ) would be a 
reasonable starting point. Over time, the rules for military 
commissions were ameliorated, though many of its procedures remain 
controversial. Despite the initial haste, the commissions have yet to 
try a single case.
    Now, almost 5 years later, Congress has been given a fresh 
opportunity to be heard on this front. We are mindful that the impulse 
to ``get it done'' is strong, and not without merit. But having 
witnessed the results of haste flowing from the November 2001 Executive 
Order, it should be Congress' goal here not just to get it done, but to 
``get it right.'' We firmly believe that a useful tool in getting it 
right would be to establish an expert panel of former JAGS, 
practitioners, scholars, and other attorneys who have devoted their 
careers to these important issues, whose expertise and insight would be 
the best guarantee that due consideration were given to the security 
issues, the due process issues, and the human rights issues. This 
process would serve the twin goals of establishing a workable system to 
prosecute and punish our enemies who have committed breaches of the law 
of war, and establishing a system which reaffirms the United States' 
role as a pre-eminent guarantor of the rule of law and human rights.
    We are aware of the National Institute of Military Justice's (NIMJ) 
proposed amendment to the UCMJ to address this matter. Although the 
Association has not yet performed a full review of the proposal, we 
applaud NIMJ's efforts and, in general, approve its approach. Within 
the context of the NIMJ proposal, we suggest that an advisory panel, 
similar to what we propose, could also prove useful to advise both 
Congress and the President about the modifications to the UCMJ which 
could form the foundation of the new military commission system.
    Any consideration of proposed legislation will require a thorough 
review at the time of introduction. While we await such opportunity, 
the Association has specific concerns about certain issues which will 
likely be relevant to Congress' consideration and debate, which I will 
summarize below:
                  geneva convention--common article 3
    Our Association filed an amicus brief in Hamdan arguing for the 
application of Common Article 3. We could not be more pleased to see 
the Court recognize that application. Reading the Geneva Conventions in 
context it is clear that the rules for so called ``non-international'' 
conflicts refer to conflicts not between nations, as distinct from 
conflicts between states party to which the entire Conventions apply. 
Moreover, customary international law and the practice of our State 
Department and our Armed Forces have long recognized that Common 
Article 3 is the minimum safety net for all armed conflict. Whenever 
and wherever Americans, military or civilian, become captives in armed 
conflict, we will want to be able to count on those rights. It should 
be inconceivable for the United States to be the first country in 
history to turn away from the Geneva Conventions, the bedrock of the 
law of war.
                              transparency
    After the President issued the Military Order, of the 10 or so 
follow-on directives establishing the detailed rules for Military 
Commissions, only 1 was released for public commentary. That directive 
concerned establishing the elements of offenses, and we offered 
comments as requested. The Department of Defense subsequently refused 
to make public the comments it received.
                               procedures
    Procedural issues tend to either be results-oriented or security-
oriented. Some procedures do involve tough questions of balancing 
security interests with reasonable due process and fairness. Certain 
procedures will obviously require modification to accommodate the 
realities of the situation. For example, Miranda warnings are on their 
face inapplicable.
Appeals
    There is no imaginably better appellate tribunal to hear appeals 
from military commissions than the Court of Appeals for the Armed 
Forces (CAAF), a well respected article I court of civilian justices 
appointed for 15 year terms. Clearly this court could hear military 
commission appeals without breach of security. Barring only tribunals 
held in a theater of operations, we would favor using the CAAF and the 
intermediate service courts of appeals as recommended by NIMJ.
Evidence
    We have no objection, in principle, to permitting more flexible 
rules of evidence consistent with battlefield conditions and 
international standards. However, much more specificity is necessary 
than the wide open concept of ``all evidence of probative value.'' The 
use of secret evidence, to which the defendant is denied any access, 
should not be permitted. The accused must ultimately have access in 
some form to evidence supporting the charges against him, and civilian 
defense counsel with security clearances should have access to all 
evidence admitted against the accused and all potentially exculpatory 
evidence. As with the procedure used in our Federal courts, we believe 
security redactions, where both court and defendant see only the 
redacted document, is a reasonable procedure. Any evidentiary disputes 
should be ruled on by the presiding legal judge before being made 
available to the members of the commission.
    Thank you for considering our views. If you have the need for 
drafting assistance or further information in your consideration of 
this important matter, we would be glad to provide assistance to this 
committee or to any other panel convened.

    Chairman Warner. Good. Just out of curiosity, does your 
amicus curiae brief go into the history of the development of 
that article?
    Mr. Mernin. I believe it did, Senator.
    Chairman Warner. I am fascinated researching the history of 
that period, when it was developed.
    Mr. Mernin. What I find particularly fascinating, Senators, 
and if you look at the entire panoply of the conventions, they 
were negotiated in the aftermath of World War II, with Josef 
Stalin's Soviet Union. Yet, even Joe Stalin saw fit, in the 
ravaged Europe, to be part of setting up a system which put in 
place a guaranteed baselines for treatment. Now, there were 
some carve-outs that he got as to security detainees and things 
like that, but it says something.
    Chairman Warner. That speaks to a lot. I'm quite interested 
in the history. If anybody else can direct me to a resource of 
how this was developed, I would appreciate it very much. Just 
forward it to me directly, here to the Senate.
    Thank you.
    Now, we have you, sir. Thank you.

  STATEMENT OF JAMES J. CARAFANO, SENIOR RESEARCH FELLOW, THE 
                      HERITAGE FOUNDATION

    Dr. Carafano. Mr. Chairman and Senator Levin, first I'd 
like to say that we, on behalf of The Heritage Foundation, 
would be more than willing to take on the task that you laid 
out and to partner with others, where we can, in looking at 
that. So we'll aggressively pursue that.
    I hope you'll indulge me for just a minute. I'm not a 
lawyer, and I think it's a different perspective that I think 
this panel needs to hear.
    My assessment comes from 25 years as a soldier who has 
lived under UCMJ and as a military scholar, who's written books 
on how real wars are fought, and as a strategist who genuflects 
every time he walks by George Marshall's desk at the Pentagon.
    I think, quite frankly, my assessment is that the focus of 
this debate has been largely wrong.
    Chairman Warner. Been largely what?
    Dr. Carafano. Wrong.
    Chairman Warner. Wrong.
    Dr. Carafano. Because it's been primarily about legal 
issues. While I would, of course, argue that it's essential 
that what Congress does and what the administration does pass 
constitutional muster, that that's not the only issue at stake 
here. What is equally important is that the solution supports 
the strategy for the war on terrorism. That's why I think this 
hearing is absolutely essential. Each branch has a specific 
responsibility. In wartime, it's the Court's job to interpret 
the law. It's the President's job to fight the war. It is 
essentially Congress's job to provide the President the right 
kinds of instruments to do that. So I think these hearings are 
absolutely essential, because this really gets to the bedrock 
of what kind of instruments are you going to provide the 
President.
    I would argue that strategy needs to be front and center of 
the discussion; because you fight long wars differently. I 
think that's an essential element that people often miss. In a 
long war, you're as concerned about protecting and nurturing 
the competitive power of the state to compete over the long-
term as you are with getting the enemy. It's the difference 
between running a sprint and running a marathon. So long wars 
call for different kinds of strategies. What we've argued, and 
what we've used to assess every element of what the Government 
has done, from homeland security to legal issues to Guantanamo 
Bay, arguably, there are four elements of a good long-war 
strategy. They are: security--getting the enemy, and protecting 
yourself; economic growth, because, at the end of the day, 
economic growth is what both sustains the security and meets 
the vital needs of the state; the protection of civil liberties 
and privacies, because that's the essential glue that gives the 
people the will to prevail, that is what keeps the civil 
society together; and winning the war of ideas, because all 
wars are won in the minds of men and women.
    What I have argued is that if you have a strategy that 
doesn't equally support each four of those pillars, then you 
don't compete well over the long-term. I'd argue, as a 
historian, if you go back and you look at the Cold War, which 
is actually one of the few long wars in history where a state 
actually got stronger over the course of the conflict, where it 
was a stronger, more powerful, and just as free nation at the 
end as it was at the beginning, it's because that largely in 
the Cold War we adhered to trying to do all four of those 
things simultaneously, and we did them all sufficiently well.
    So with regards to this issue, I think I have concerns on 
three of the components: security, civil society, and the war 
of ideas. I'd just like to share those with you very quickly, 
and then I'll conclude my remarks.
    In terms of security, I think there's really two issues at 
stake. One, as I mentioned, is Government has the dual purpose 
of the security of the individual and the security of the 
people, and legal systems are designed to deal with both of 
those. Most of our legal systems and the UCMJ is a prime 
example of starting with the premise of defending and 
protecting the rights of the individual, and then it builds in 
the requirements for national security and the requirements for 
military success, and is essential.
    I think the legal system that we demand here is something 
very, very different. It should start with satisfying the 
national security issues of the Nation, and then we should 
build into that the minimum due-process requirements that are 
required.
    My second concern is the system that we come up with. We 
have to preserve the flexibility of the executive power. The 
Presidents fight the wars, and Clausewitz, the famous Prussian 
military philosopher, said, ``Everything in war is simple, but 
even the simple is very difficult.'' The reason why he said 
that is, he talked about the friction of war, the 
unpredictability, the changing nature of war. So we've bound 
our executive to the minimum possible to allow him or her the 
flexibility to adjust for the changing face of war.
    How we apply military commissions today or next year may be 
different. The threat may present itself differently 5 or 10 
years from now. So, we really want to be cautious in how we 
bound the executive in this.
    I think there is a civil society issue at stake here. I 
think it's a fundamental mistake to begin with UCMJ as the 
start and in a sense, creating the notion, even if it's not 
completely accurate, that you are rewarding unlawful combatants 
by placing them under a legal system which is designed for 
people that live in the light. I mean, even criminals, in a 
sense, live in the light and respect.
    Chairman Warner. Designed for people who live in what?
    Dr. Carafano. To live in the light. In a sense, even 
criminals live under the legal system under which this is a 
system that you're combating an enemy who actually wants to 
destroy the legal system. I do think that any perception that 
you're rewarding them for operating under a system which 
they're trying to destroy is incorrect. I do think that 
creating a separate legal system, even if, at the end of the 
day, they look fairly similar, is an essential component of 
maintaining the notion of what makes for a healthy civil 
society to make a distinction between those who respect the 
rule of law and those who want to destroy the rule of law.
    I'll just end on my third point, which is where this fits 
in the war of ideas. I do believe that the discussion we have 
here, and how Congress rules on this, or acts on this, is going 
to have an immense implication on how the United States is 
portrayed to the world. I think what we have to recognize is 
how do you contribute to winning the war of ideas? It's not 
about doing something that is very popular. It's not about 
doing something that gets a broad consensus of lots of people. 
It's really about doing the right thing.
    The most essential component is to demonstrate two things. 
One, that you have the will to prevail, that you're going to 
prevail against the terrorists no matter what they do, no 
matter what they try, that the Nation's going to keep fighting 
until it wins, until people are free. Two, that you respect the 
rule of law and you're never going to sacrifice the rule of law 
in how you fight that war.
    At the end of the day what really is going to advance the 
cause of the United States in the war of ideas is that you have 
a Supreme Court and a Congress and an administration that speak 
with one voice. That, I think, is the most essential component. 
At the end of the day, I think what's really required for a 
solution that just doesn't respect the rule of law, but it 
helps win the long war. Really, both of those have to be 
paramount and equally weighed as you move towards your final 
recommendations.
    Thank you, sir.
    [The prepared statement of Dr. Carafano follows:]

            Prepared Statement by Dr. James Jay Carafano \1\
---------------------------------------------------------------------------
    \1\ The Heritage Foundation is a public policy, research, and 
educational organization operating under section 501(C)(3). It is 
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foundation, and corporate supporters representing every state in the 
U.S. Its 2005 income came from the following sources:
      Individuals - 63 percent
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    The top five corporate givers provided The Heritage Foundation with 
2 percent of its 2005 income. The Heritage Foundation's books are 
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A list of major donors is available from The Heritage Foundation upon 
request.
    Members of The Heritage Foundation staff testify as individuals 
discussing their own independent research. The views expressed are 
their own, and do not reflect an institutional position for The 
Heritage Foundation or its board of trustees.
---------------------------------------------------------------------------
    Mr. Chairman and other distinguished members of the committee, 
thank you for the opportunity to testify before you today on the U.S. 
Government's proposal to try unlawful combatants by military 
commissions in light of the Supreme Court decision in Hamdan v. 
Rumsfeld.\2\ What I would like to do in my testimony is: (1) describe 
how this decision fits in the context of how America ought to fight the 
war on terrorism; (2) make the case that Congress ought to ratify the 
president's discretion to use military commissions to try these types 
of unlawful combatants and the offenses charged, and grant the greatest 
discretion to this and future presidents to establish just rules for 
such tribunals consistent with national security; and, (3) suggest how 
the Bush administration's proposal for commissions could be amended to 
satisfy legitimate congressional concerns.
---------------------------------------------------------------------------
    \2\ Salim Ahmed Hamdan, an al Qaeda suspect held at the facility 
for terrorist combatants at the U.S. military base in Guantanamo Bay, 
Cuba, challenged the government's right to try him by the military 
commissions established by President George W. Bush's November 13, 2001 
order governing the detention, treatment, and trial of non-citizens in 
the war against terrorism. The Supreme Court ruled in Hamdan's favor, 
declaring that the commissions have to be explicitly authorized by 
Congress.
---------------------------------------------------------------------------
                          winning the long war
    My view of what Congress should do is tempered by a 25-year 
military career as a soldier and strategist. In deciding how to move 
forward after Hamdan v. Rumsfeld, strategy matters. While Congress and 
the Bush administration must a find a remedy that is consistent with 
the demands of the Constitution, satisfying the rule of law is not 
enough.
    The best solution is one that is consistent with how the law in 
free societies should be used in wartime, and an approach that supports 
the national strategy.
    President Bush was right to argue that the concerted effort to 
destroy the capacity of transnational groups who seek to turn terrorism 
into a global corporate enterprise ought to be viewed as a long war. 
Identifying the war on global terrorism as a long war is important, 
because long wars call for a particular kind of strategy--one that pays 
as much attention to protecting and nurturing the power of the state 
for competing over the long term as it does to getting the enemy. Long 
war strategies that ignore the imperative of preserving strength for 
the fight in a protracted conflict devolve into wars of attrition. 
Desperate to prevail, nations become over-centralized, authoritarian 
``garrison'' states that lose the freedoms and flexibility that made 
them competitive to begin with.\3\ In contrast, in prolonged conflicts 
such as the Cold War, in which the United States adapted a strategy 
that gave equal weight to preserving the Nation's competitive 
advantages and standing fast against an enduring threat, the U.S. not 
only prevailed, but thrived emerging more powerful and just as free as 
when the stand-off with the Soviet Union began.
---------------------------------------------------------------------------
    \3\ See, Aaron L. Friedberg, In the Shadow of the Garrison State 
(Princeton: Princeton University Press, 2000).
---------------------------------------------------------------------------
    The lessons of the Cold war suggest that there are four elements to 
a good long war strategy: \4\
---------------------------------------------------------------------------
    \4\ See James Jay Carafano and Paul Rosenzweig, Winning the Long 
War: Lessons from the Cold War for Defeating Terrorism and Preserving 
Freedom (Washington, DC: The Heritage Foundation, 2005).

          (1) providing security, including offensive measures to go 
        after the enemy, as well as defensive efforts to protect the 
        Nation;
          (2) economic growth, which allows states to compete over the 
        long term;
          (3) safeguarding civil society and preserving the liberties 
        that sustain the will of the Nation; and
          (4) winning the war of ideas, championing the cause of 
        justice that, in the end, provides the basis for an enduring 
        peace.

    The greatest lesson of the Cold War is that the best long war 
strategy is one that performs all of these tasks equally well.
    I want to highlight the elements of long war strategy, because the 
successful prosecution of three of them--providing security, protecting 
civil society, and winning the war of ideas--will depend in part on 
well Congress moves forward after in Hamdan v. Rumsfeld. Congress 
should authorize military commissions in a manner that respects equally 
all three of these aspects of fighting the long war.
                      satisfying national security
    There are three issues at stake in ensuring the Nation has the 
right instruments for fighting the long war. First, military 
commissions must be conducted in a manner that optimizes meeting 
national security interests. Second, the principle of law that protects 
both U.S. soldiers and civilians on the battlefield must be preserved. 
Third, the power of the executive branch to adapt and innovate to meet 
the challenges of war should not be encumbered.
    In order to optimize national security interests, I would argue 
against using the Uniform Code of Military Justice (UCMJ) as a basis 
for authorizing military commissions for trying unlawful combatants. 
The UCMJ is structured as a traditional legal system that puts the 
protection of the right of the individual foremost, and then adds in 
accommodations for national security and military necessity. Such a 
system is not at all appropriate for the long war. For example, Article 
31(b) requires of the UCMJ requires informing service men suspected of 
a crime of their Miranda Rights. The exercise of Miranda Rights in 
impractical on the battlefield. Hearsay evidence is prohibited in court 
martial. On the battlefield, much of the collected intelligence that 
the military acts on is hearsay. In fact, reliable hearsay may be the 
only kind of evidence that can be obtained about the specific 
activities of combatants. Likewise, overly lenient evidentiary rules 
make sense when trying a U.S. soldier for a theft committed on base, 
but not when someone is captured on the battlefield and is being tried 
for war crimes committed prior to capture, perhaps in another part of 
the world.
    Rather than seek to amend courts-martial procedures to address 
security concerns, I believe it would be preferable to draft military 
commissions that put the interests of national security first, and then 
amend them to ensure that equitable elements of due process are 
included in the procedures.
    I also believe that for the protection of both soldiers and 
civilians, the distinction between lawful and unlawful combatants be 
preserved as much as possible. If we respect the purposes of the Geneva 
Conventions and want to encourage rogue nations and terrorists to 
follow the laws of war, we must give humane treatment to unlawful 
combatants. However, we ought not to reward them with the exact same 
treatment we give our own honorable soldiers. Mimicking the UCMJ sends 
exactly the wrong signal.
    Finally, the executive branch's power to wage war ought not to be 
unduly encumbered. If there is one truism in war, it is that conflict 
is unpredictable. Carl von Clausewitz, the great 19th century Prussian 
military theorist called it the ``friction of battle.'' Clausewitz also 
said that ``everything in war is simple, but in war even the simple is 
difficult.'' That is why in drafting the Constitution, the framers gave 
wide latitude to the executive branch in the conduct of war. They 
recognized that the president needed maximum flexibility in adapting 
the instruments of power to the demands of war. In bounding the 
president's traditional war powers, Congress should take a minimalist 
approach.
                       respecting the rule of law
    After September 11, the Bush administration's critics framed a 
false debate that indicated that citizens had a choice between being 
safe and being free, arguing that virtually every exercise of executive 
power is an infringement on liberties and human rights. The issue of 
the treatment of detainees at Guantanamo Bay has been framed in this 
manner. It is a false debate. Government has a dual responsibility to 
protect the individual and to protect the Nation. The equitable 
exercise of both is guaranteed when the government exercises power in 
accordance with the rule of law.
    In the case of the military tribunals, the Supreme Court has 
outlined a rather narrow agenda for Congress to ensure that the rule of 
law is preserved. As legal scholars David Rivkin and Lee Casey rightly 
pointed out in a June 30, 2006, Wall Street Journal editorial: ``All 
eight of the justices participating in this case agreed that military 
commissions are a legitimate part of the American legal tradition that 
can, in appropriate circumstances, be used to try and punish 
individuals captured in the war on terror[ism]. Moreover, nothing in 
the decision suggests that the detention facility at Guantanamo Bay 
must, or should, be closed.'' \5\ No detainee was ordered to be 
released. Nor was their designated status as unlawful combatants (who 
are not entitled to the same privileges as legitimate prisoners of war 
who abide by the Geneva Conventions) called into question. The Supreme 
Court did not so much as suggest that the non-citizen combatants held 
at Guantanamo must be tried as civilians in American civilian courts. 
Nor did it require that detainees be tried by courts martial 
constituted under the UCMJ.
---------------------------------------------------------------------------
    \5\ David B. Rivkin, Jr. and Lee A. Casey, ``Hamdan: What the 
Ruling Says and What it Doesn't Say,'' Wall Street Journal, July 3, 
2006, at www.opinionjournal.com/extra/?id=110008599 (July 18, 2006).
---------------------------------------------------------------------------
    In addition, while the Court held that the basic standards 
contained in Common Article 3 of the Geneva Conventions \6\ apply, it 
should be pointed out that the Geneva Conventions have been honored, 
except--according to the Supreme Court--in the way the military 
commissions were established. Common Article 3 requires a floor of 
humane treatment for all detainees. Granted, some of the language in 
Common Article 3 is vague and subject to varying interpretations. For 
the purposes of this discussion the most relevant issue is the 
interpretation of the phrase that treatment should include ``judicial 
guarantees which are recognized as indispensable by civilized 
peoples.'' This requires some due process, such as the type of due 
process the status review boards and military commissions provide. If 
Congress explicitly ratifies the military commissions, then a majority 
of the Court would uphold them as consistent with the Geneva 
Conventions. This should satisfy U.S. obligations under the treaty.
---------------------------------------------------------------------------
    \6\ Common Article 3 was signed in Geneva on August 12, 1949. It 
applies to the treatment of persons waken in a conflict that is not of 
an international character. It mandates that persons who have laid down 
their arms and are no longer taking active part in hostilities shall be 
treated humanely without adverse distinction based on race, color, 
religion, faith, sex, birth, or wealth, or any similar criteria. It 
also prohibits using violence against such people, particularly murder, 
mutilation, cruel treatment, and torture; taking of hostages; and 
outrages upon personal dignity. Finally, it prohibits the passing of 
sentences and carrying out of executions without a judgment by a 
regularly constituted court that affords the judicial guarantees 
recognized by all civilized peoples, and mandates that the sick and 
wounded by cared for. See ``Convention (III) Relative to the Treatment 
of Prisoners of War,'' August 12, 1949, at www.icrc.org/ihl.nsf/0/
e160550475c4b133c12563cd0051aa66?OpenDocument (July 18, 2006).
---------------------------------------------------------------------------
    Thus there is no reason for Congress to require courts-martial 
under the UCMJ, to draft guidelines for new commission procedures, or 
to partially overrule or repeal our ratification of the Geneva 
Conventions. Congress also appears to have approved the president's 
military commissions in the Detainee Treatment Act in December 2005, 
although the Court has ruled this authorization is not sufficiently 
specific. I would suggest that nothing has changed in the past few 
months that should alter the sense of Congress.
    It should also be understood that military commissions are intended 
for limited use. We should not try most detainees. We should simply 
detain most of them until hostilities are concluded or they are no 
longer a threat. A separate administrative review process is used to 
determine whether further detention is warranted, or for example, 
whether the detainee is an innocent non-combatant.\7\ The Court never 
said detention was improper. We should only try those who are war 
criminals, and we have bent over backward to give them due process--
perhaps too much. It might even be best to delay their war criminal 
trials, as we have in many wars, until the end of hostilities. That, 
however, is something that traditionally has been, and should be, left 
to the president's discretion.
---------------------------------------------------------------------------
    \7\ Hundreds of detainees have been released from Guantanamo for 
one reason or another. Not all were innocent or harmless, however. By 
some estimates, approximately 25 of those released have been recaptured 
or killed when they took up arms again.
---------------------------------------------------------------------------
                        winning the war of ideas
    By explicitly authorizing military commissions, Congress can also 
make a useful contribution to winning the war of ideas. The Court's 
decision has been portrayed across much of the world as a huge defeat 
for the Bush administration and a repudiation of its decision to hold 
unlawful combatants. The ruling will, no doubt, be used by al Qaeda and 
its affiliates as a major propaganda tool. It will also give ammunition 
to America's harshest critics on the international stage. In 
particular, the decision is likely to exacerbate tensions in the trans-
Atlantic relationship. Washington has been increasingly under fire from 
European Union (EU) officials and legislators about Guantanamo. The 
EU's External Relations Commissioner, Austria's Benita Ferrero-Waldner, 
has called for the Guantanamo detention facility to be closed, and the 
European Parliament passed a resolution urging the same. The EU's 
condemnation of the Guantanamo facility has echoed those of the United 
Nations (U.N.) Committee Against Torture and the U.N.'s hugely 
discredited Commission on Human Rights, which condemned the detention 
facility without even inspecting it. Now, these groups are trumpeting 
the Supreme Court's decision.
    However, these critics have largely ignored what the Court's 
decision actually says. The approval of Congress and affirmation by the 
Court that the commissions represent the will of the American people 
demonstrate our resolve both to take the threat of transnational 
terrorism seriously and to respect the rule of law.
                           what must be done
    Also unchanged is the government's obligation to devise an 
equitable long-term solution that fairly executes justice while fully 
satisfying our national security interests. What is needed is a process 
that does not treat unlawful combatants as regular criminals or 
traditional prisoners of war. That would simply reward individuals for 
breaking the rules of the civilized world. Most Guantanamo detainees 
are not currently set to be tried for war crimes, and they may continue 
to be detained with only minor changes to the administration's status 
determination proceedings. For those scheduled to be tried for war 
crimes, the Bush administration must follow existing courts-martial 
rules or seek explicit congressional approval for the planned military 
commissions.
    Congress can satisfy its legal and national security obligations 
explicitly by authorizing the proposed military commission process. 
What is critical is that the Bush administration move forward 
expeditiously, demonstrating once again its unswerving commitment to 
fight the long war according to the rule of law.

    Chairman Warner. I find those to be very valuable 
guideposts.
    This concludes the presentation by panel members. We'll 
proceed to the second panel shortly, but we'll first go to a 
round of questions. I, myself, am going to forebear any lengthy 
questions, because I am anxious to allow the second panel an 
opportunity.
    Senator Levin.
    Senator Levin. Mr. Chairman, I'm going to not ask questions 
about specific provisions of either the manual or of the order 
and as to how they would need to be modified in order to be 
both practical and to represent the necessity of the 
circumstances we're in. There needs to be some changes from the 
UCMJ, if we use that as the baseline. I think everybody 
acknowledges that. The argument or discussion or debate would 
be over what those specifics need to be. For those who believe 
that we should use the order number 1 as the baseline, I think 
they would acknowledge there need to be changes following the 
Supreme Court in that. For me, what the Supreme Court 
suggested, it seems to me, quite clearly, is that the rules of 
court-martial should apply unless there's a showing of 
necessity of impracticability.
    That's where I'm coming from. But that's one Senator. I'm 
not going to ask a lot of the specific questions which I would 
ordinarily ask if I had more time. Also, given the fact that 
there are so many specifics that need to be addressed, I think 
you could just barely skim the surface here this morning, 
regardless of what your starting point is. I would rather, I 
think, see not just the witnesses in these two panels, but 
other people who aren't here, work and make recommendations to 
us to list the specific changes from whatever baseline is begun 
with that ought to be considered by Congress.
    But I do have a couple of other questions, beside the items 
that I'm not going to ask about.
    Let me start with you, Mr. Carafano. In terms of Common 
Article 3, you believe that we should acknowledge that is going 
to be followed by us?
    Dr. Carafano. Yes, I don't think it's a relevant issue for 
discussion. The Supreme Court has ruled that Common Article 3 
is appropriate, that Common Article 3 is part of the U.S. law. 
I would caution against trying to revise U.S. law to somehow 
reinterpret Common Article 3. I don't necessarily see that as 
an enormous obstacle in moving forward with implementing 
military commissions.
    Senator Levin. You believe the Supreme Court requires us to 
continue to abide by it, and you have no problem?
    Dr. Carafano. Well, whether I believe the Supreme Court 
made the right decision or not is really irrelevant. They have, 
and that's the rule of the land.
    Senator Levin. All right.
    Mr. Fidell, just in terms of your organization, one of the 
issues which we are going to need to address is whether or not 
Congress is going to have to approve whatever the product is, 
or whether we just basically delegate this to the President 
under some kind of more general rubric. It seems to me it is 
essential, if we are going to have the kind of credibility that 
we all want in this product, that Congress be involved in the 
adoption of a product, and not simply delegating the product to 
the executive branch and them simply say, ``Notify us of what 
you're doing.''
    Your organization, subject to your qualifications, which I 
listened to very carefully this morning and frankly welcomed--
suggested there be a notice to us of what, basically, the 
deviations are from whatever the baseline is. I think that 
would put us right back in the soup that we were in or could 
lead to the same problem that the Supreme Court had to say was 
not a satisfactory outcome.
    So, I'm wondering if your organization could follow what 
you suggested might be the order of the day here. Namely, to 
review that recommendation, that there simply be notice, and, 
in any event, whatever of you or the next panel or others that 
know about our invitation provide to us. If you would address 
that specific issue in those comments that you submit to us 
about what role Congress should have, in terms of legislating 
the deviations from whatever baseline it is we start from.
    Mr. Fidell. Right. There's no question, Senator Levin, that 
Congress could take certain things off the table. On the other 
hand, I also think there's no question that Congress cannot 
legislate every jot and title of the system, because, 
otherwise, this is what I'll call the Military Commissions Act 
of 2006, or whatever it's going to be called, is going to be 
the size of the Manual for Courts-Martial, which I think would 
be preposterous.
    I believe that the sense of our organization is, there's 
always going to be some presidential rulemaking. It may be 
interstitial. The question is, How much? Which is going to be 
the tail here, and which is going to be the dog? You're 
suggesting that maybe what we thought of as the dog ought to be 
the tail.
    Senator Levin. No, I'm suggesting there was no dog in your 
recommendation.
    Mr. Fidell. On that, I'm going to respectfully disagree, 
because we wrote it with a view to build some teeth in, while, 
at the same time, being respectful for the traditional sphere 
that Congress has recognized for presidential decisionmaking in 
the military justice area.
    Senator Levin. Well, no. As I remember, the teeth were that 
there would be judicial review of any deviation, and that that 
would be a matter which could be raised on an appeal. But that 
just would seem to me to be endless litigation instead of 
trying to resolve some of that in advance.
    In any event, rather than pressing you further, if you 
could ask your organization to reconsider what the role of 
Congress should be, upfront, in terms of approval of whatever 
part of the dog you think should be legislated, it would be 
helpful. I would ask the same for anyone who submits 
recommendations to us. What needs, in your view, to be 
legislated, upfront, as part of whatever the general rules are, 
the fairly specific rules are, the very specific rules are? If 
you could make that part of our recommendations. In your case, 
if you would, Mr. Fidell, particularly see if your organization 
has anything further. I would invite, as one Senator, a review 
of what was in that July draft and to see whether you want to 
implement that further. But, I must tell you, I react to the 
suggestion that this be judicially reviewable, where there is a 
deviation from the manual as really an invitation to endless 
litigation. We'd be in a much stronger position if Congress put 
an imprimatur on items rather than simply saying they would be 
judicially reviewable without that imprimatur.
    Mr. Fidell. You make a good point. I do believe in the 
substance of judicial review of agency action. That's how I 
make my living. That's what I do for a living. I think the 
Federal courts, the Court of Appeals for the DC Circuit, when 
you go there, and you say that the Widget Commission has done 
something that's arbitrary and capricious, you'll get heard. 
You may not always get any traction with it, but you can 
certainly get heard.
    Senator Levin. I agree with that. Do you agree with the 
second part of what I said, though, that in terms of any review 
which is sought, that the deviation would be in better position 
if we had congressional imprimatur.
    Mr. Fidell. Oh, absolutely. Of course, of course. There's 
no question about that. The question is striking a balance. If 
I can wax philosophical here for 1 second, the subtext for this 
colloquy right now, and, really, in a way, for this morning's 
panel testimony as a whole, is how the relationship between the 
executive branch and Congress plays out. The result of your 
efforts in this committee, with this legislation, will be an 
index of those relationships. They've very elusive, but they're 
going to come to earth in this context. Where the balance is 
going to be struck in this context, where we're no longer 
acting on a clean slate or engaging in head games. We're 
talking about real cases, we have a decision on the merits by 
the Supreme Court of the United States, it's not something 
where somebody sat down with a clean yellow pad in 2001 and 
created a set of rules. It's going to be a manifestation of the 
substantiality of Congress's power and how that power meets and 
interacts with the power of the President of the United States. 
Where that line is going to be, you all will work out. There 
will be a vote on it someday. But I think I'll call it a 
friendly amendment, your friendly suggestion is one that NIMJ 
will take very seriously. Frankly, we're flattered that you 
think it's worth asking for our views on this.
    Senator Levin. I want to thank all of you for your 
testimony. It's really been a very helpful panel. We thank your 
organizations for the efforts that they make to help us sort 
this all out.
    Chairman Warner. Thank you, Senator Levin. Thank you very 
much.
    We'll go from one side to the other, in our tradition. 
Senator Talent, then Senator Dayton.
    Senator Talent. Thank you, Mr. Chairman. I'll try and be 
brief. I know you have another panel.
    Mr. Mernin, you mentioned that in the development of the 
Geneva Conventions, even Josef Stalin participated in the 
negotiation of it.
    Mr. Mernin. Senator, I didn't mean to speak as a historian 
on it, but it strikes me that the era was a particularly 
interesting era for the development, and that the Soviet Union 
were signatories, and we did end up with the Article 3. All 
that leads me to just draw an inference that there was 
something.
    Senator Talent. You're not suggesting that Marshal Stalin 
actually followed the Geneva Conventions in his affairs, are 
you?
    Mr. Mernin. No. Again, I'm not a student of history, and I 
wasn't trying to suggest that we model ourselves after him.
    Senator Talent. I don't think we have to be too good a 
student of history to understand that he didn't. Is it possible 
that he agreed to the Convention thinking that we would follow 
it and he would be free to do whatever he wanted?
    Mr. Mernin. Senator, I've met with this response, myself, 
when I've asked, ``Is it possible?'' Anything's possible. I 
wasn't trying to give a history lesson.
    Senator Talent. Yes, I think it bears on it, because one of 
the sentiments I've heard expressed is that if we do things, 
and you're not fully saying this, but I want to bring this to 
light. The suggestion that if we do things a particular way, 
and are particularly careful, that, therefore, our enemies in 
this war are going to be particularly careful with our 
prisoners. Do you think it's going to influence what the 
terrorists do with our prisoners?
    Mr. Mernin. Senator, you make an interesting point. But I 
really think that, to the extent we've made a corollary 
argument on that, we're talking about the next war, and not 
necessarily what these particular terrorists are going to do 
tomorrow. It's about doing what's right, and it's about 
protecting the future.
    Senator Talent. Yes, I certainly agree that the conflict 
is, in part, between narratives of the world, and we want to be 
faithful to our narrative of the world to influence, in the 
longer-term, the direction of the world. I do also think, 
however, there is such a thing as deep evil in the world, and I 
don't think that people who are possessed of that evil, or 
believe in it, are necessarily going to be influenced by what 
we do. I think we have to keep that in mind.
    We had testimony the other day from a number of JAGs who 
were pretty much of the opinion that they didn't know what 
process ought to be applied in these cases.
    Now, Ms. Bierman, as I recall, you were saying that, 
``Well, the law of due process is pretty well-developed, and we 
all know what it is.'' In fact, we really don't know what it 
is, as applied to particular cases, do we? There is a 
considerable amount of uncertainty, even in the application of 
due-process concepts in American law, much less in this 
context.
    Ms. Bierman. With all due respect, Senator, I said, ``We 
really don't know what due process is, but we keep trying.'' We 
can't sum it up quickly, but people still believe in it, and 
they keep working it out. So, I was not saying we know what due 
process is.
    Senator Talent. Right. But I understood you to say that 
there were these concepts that had been around for a long time, 
we had a very substantial body of law, and that we knew what it 
was. Isn't it maybe whether you said it or didn't say it, 
mightn't it be more accurate to say that sometimes we know what 
it isn't, and sometimes we know what it is, and then there's a 
big gray area? Would you agree with that?
    Ms. Bierman. I would agree with that, Senator, with the 
caveat that we still have to work our way through the gray area 
and can't toss up our hands.
    Senator Talent. Now, there are other considerations 
involved in this. I think Dr. Carafano touched on this. As we 
work our way through the gray area, particularly in the context 
of a war, would you agree that we also have to pay attention to 
whatever tactical objective we may have in the war at that 
point? In other words, it is relevant, is it not, whether a 
particular process contributes to our ability to get the 
intelligence that we need, or otherwise win the war? Would you 
agree that that's relevant to our consideration of what process 
is appropriate in a particular case?
    Ms. Bierman, maybe you can answer, and others can comment.
    Ms. Bierman. I'm sorry, Senator, I thought you were 
addressing the question to other panelists.
    Senator Talent. What I'm saying is that in the application 
of due process in particular cases, there are gray areas. In 
deciding what we ought to do in particular areas, isn't it 
relevant for us to consider what is going to help us in 
actually winning the war? Would you agree that that's a 
relevant factor in deciding what due process is appropriate in 
a particular case?
    Ms. Bierman. I do, Senator. But, at the same time, I am 
going to go back to what I said before there's always a bottom 
line, at some point.
    Senator Talent. Yes. There are things that we pretty 
clearly know we don't want to do. There are things we pretty 
clearly know are appropriate. Then there is a gray area. One of 
the conclusions I'm reaching about this is that we're really 
living in this gray area now. One of the concerns I have is, if 
we try and pretend to a certainty that we don't have, it may 
affect, on the ground, what actually happens, in ways that are 
unproductive.
    Dr. Carafano, you look like you're eager to say something.
    Dr. Carafano. Sir, I wanted to agree with your statement 
and draw another historical example. Look at the Nuremberg 
trials. I don't think, today, by a lot of standards, people 
would argue that the Nuremberg trials actually didn't meet the 
criteria of Common Article 3. But, as a historical judgment, 
people look back at them, and they say they were equitable, 
they say they redressed a legitimate evil, and they say they 
sent a message to the world on what was the appropriate 
behavior. I think the lesson of the Nuremberg trials is we have 
to think relatively broadly into what's an acceptable judicial 
process. If we bog down into the nit noise of, ``Well, it's not 
legitimate unless you have this exactly small thing, then it's 
illegitimate,'' that's putting the rule of law ahead of 
reality.
    Senator Talent. I'm particularly interested in how all this 
may affect interrogations, as opposed to trying or processing 
detainees that we decide we want to bring before some kind of 
trial situation. Now, my understanding is that the Court's 
decision leaves open the question of the extent to which 
Article 3 applies to interrogations. Is that correct, in your 
judgment, or do you think the Court decided one way or another 
pretty clearly?
    Ms. Massimino. I think that the Court's embrace of Common 
Article 3, Common Article 3 deals with both the standards for 
trial and interrogations, but what's more relevant from my 
perspective is that Congress has spoken on this already, and 
quite clearly. So, that piece of this puzzle has been, 
thankfully, largely resolved, in my view. Now what's needed is 
the implementation of that standard in operations manuals, 
field manuals, so that people understand clearly what the 
standard is that Congress passed. We have crossed that 
threshold, I think, already.
    Senator Talent. We prohibited cruel or inhumane punishment. 
I was going to focus on the ``degrading'' provision, the 
provision in Article 3 against humiliating or personal 
outrages, humiliation, or degrading. Is it your view that that 
is an objective standard that applies, regardless of the 
cultural or personal background of the prisoner, or do you 
think that might vary in different circumstances?
    Ms. Massimino. I think that the ICRC has said in the 
Convention Against Torture, in interpreting the torture 
convention, that there's only a certain amount of specificity 
you can get to with our criminal law, that there is a totality-
of-the-circumstances question. In the debate, as I'm sure you 
recall, last year, about the DTA. It was for the very reason 
that it's going to be different, what you do to one person may 
be torture or cruel, inhuman, and degrading treatment and the 
circumstances may be different for another. We have wisely 
constructed a system that drives people away from the edge. I 
think that's what the Army Field Manual on Intelligence 
Interrogation traditionally has done, and I understand the new 
manual will do the same.
    So, I think that there is a recognition that there will be 
some gray areas, whether it's in Common Article 3 or in the 
standard on cruel, inhuman, and degrading treatment. That 
doesn't mean that we should be creating more gray areas.
    Senator Talent. I liked your comment that we drive people 
away from the edge, because I think that's a point--can we 
define where the edge is?
    Ms. Massimino. I think, as clearly as we can, Congress has 
done that.
    Senator Talent. Yes. So what you're saying is, we're 
building into the system a bias against going near the edge, 
so, if the edge, for example, might be a reference to the 
Quran, or mistreatment of the Quran in front of a prisoner, we 
are driving our interrogators away from that edge. So, do you 
all have a concern that perhaps we are biasing the system 
against the use of more aggressive, or perhaps effective, 
interrogation techniques by insisting that they stay away from 
the edge, but then telling them we can't define where the edge 
is?
    Ms. Massimino. I'm not concerned about that, because I 
think Congress did its job last year in defining that, and had 
this very debate.
    Senator Talent. Yes, but you just said we didn't define it, 
we left a considerable amount of discretion involved.
    Chairman Warner. We're going to have to ask your panel to 
bring to a conclusion their testimony.
    Senator Talent. I'm sorry, Mr. Chairman. I said I was going 
to be brief.
    Ms. Massimino. I apologize, sir.
    Senator Talent. Wait a minute. This is the Senate. That 
happens rather a lot. [Laughter.]
    Mr. Fidell. Senator?
    Chairman Warner. I want you to finish.
    Senator Talent. I will desist.
    Chairman Warner. Please say your point, but I see a number 
of hands being raised here, and I'm just concerned about the 
time.
    Senator Talent. Yes, I'm sorry, Mr. Chairman.
    Mr. Fidell. I just want to, if I can, refer you, Senator, 
to what the President has stated on the subject, or a closely 
parallel subject, in the current Manual for Courts-Martial. As 
I said before, Article 93 prohibits cruelty and maltreatment. 
He has prescribed an objective standard. That's the current 
state of the law in the United States.
    Senator Talent. Okay.
    Thank you, Mr. Chairman.
    Chairman Warner. I thank the distinguished Senator from 
Missouri. I appreciate very much your active participation in 
this matter.
    Senator Talent. I apologize to the Chairman for trespassing 
on my time.
    Chairman Warner. That's all right. I think everybody has 
thus far. You'd have been the sole one that has. [Laughter.]
    Senator Talent. Because we have an objective standard for 
that rule here, I know. [Laughter.]
    Chairman Warner. That's right.
    Senator Dayton, you had a question you wished to ask.
    Senator Dayton. Thank you, Mr. Chairman.
    I say this has been a very valuable hearing. I regret that 
it seems to have been prejudged by some, as reflected in at 
least one of the opening statements of my colleague. We're at 
this point, and I think it's important to reiterate first, 
because the Supreme Court determined that the Bush 
administration exceeded its constitutional authority, and 
second, because the commission hasn't worked. Unless I'm 
misinformed, based on your comments and also the hearing last 
week, the commission has not brought a single case to trial. 
Unless it's the unstated objective of the administration just 
to hold people indefinitely, because they've been classified as 
enemy combatants, without any review process whatsoever and 
that's occurred here now for some 4\1/2\ years, in some 
instances. Otherwise, the commissions have failed in their 
stated purpose, which is to bring that due process to bear on 
these individuals.
    I think this is another example of a very unfortunate 
predisposition of this administration, to reject years of 
collective wisdom and careful effort on the part of its 
predecessors of both Republican and Democratic administrations, 
as we saw with the rejection, when started, in the arm control 
agreements or the International Environmental Accords, and now 
we see with the UCMJ and Common Article 3 of the Geneva 
Conventions. In those instances, not to critique or to try to 
improve upon what has been set forth before them, but just to 
discard them. Then we find ourselves disrespected in the eyes 
of much of the rest of the world, and we wonder why.
    I'm reminded of the old adage, ``We judge ourselves by our 
intentions. Others judge us by our actions.'' I think clearly 
we believe, and we believe properly, that our intentions are 
well and good. But there is a dissonance between how we 
perceive ourselves and how we're perceived in the eyes of both 
our friends and allies, as well as our adversaries around the 
world, as well as those that are subject to being persuaded one 
way or the other. I think this administration has given scant 
thought to the implications of these decisions and actions on 
how we're perceived, and that has a direct bearing on how other 
nations act in ways that affect our national security, you and 
others have emphasized.
    I guess one question, or clarification, I'd just like to 
make, because we're talking about a choice or perceiving a 
choice in what our starting point is, in terms of how we 
approach this, whether it be the President's order, Military 
Order Number 1, or whether it be the UCMJ. Mr. Mernin, if I'm 
reading from your testimony here, and if there's any 
disagreement with this, please let me know, or by anyone else. 
You said, ``After the President issued the military order, of 
the 10 or so follow-on directives establishing the detailed 
rules for military commissions, only one was released for 
public commentary. That directive concerned establishing the 
elements of offenses, and we offered comments, as requested. 
The DOD subsequently refused to make public the comments that 
were received.'' If we have the President's directive, but we 
don't have any follow-on directive establishing those rules, 
and we don't have the public comments that the DOD received, 
then it may have had very valid reasons for taking that 
position. I don't know how we start with the commission, which 
hasn't acted yet, and when we don't know all of the details of 
what its authority and rules and procedures are. How can we 
possibly evaluate that?
    Mr. Mernin. No, perhaps I was inartful. The follow-on 
directives were issued, but they were issued without the 
opportunity for public comment.
    Senator Dayton. Okay.
    Mr. Mernin. Except in one instance.
    Senator Dayton. I see. Okay, so, they have been made 
public? Yes?
    Mr. Fidell. Senator, maybe I can intervene on this. The 
history of this and it's somewhat discussed in a law review 
article by an author whom modesty prevents me from further 
identifying.
    Senator Dayton. We're not modest here. Please don't feel 
constrained. [Laughter.]
    Mr. Fidell. The background is this. The administration, 
with the exception, I believe, of Military Commission 
Instruction Number 2, which defines crimes and elements of 
offenses and, I think, one other, issued the rules without what 
we all assume is the customary notice and opportunity for 
comment that you associate with Federal rulemaking. We made a 
Freedom of Information Act (FOIA) request, ``we'' being NIMJ, 
made a FOIA request for all of the comments that the 
administration received. At least that was one way to find out 
what this was all about. We received many comments, but the 
administration withheld comments, I think, 10 people who were 
most directly consulted privately in the preparation of the 
rules.
    Senator Dayton. I need to ask you to conclude here.
    Mr. Fidell. Yes, I will.
    Senator Dayton. My time is expiring.
    Mr. Fidell. I will, immediately. Just to tell you that the 
matter is the subject of a decision by the U.S. District Court, 
which we are about to appeal to the U.S. Court of Appeals.
    Senator Dayton. Okay.
    Mr. Fidell. For the DC Circuit.
    Senator Dayton. All right. Since my time is winding down 
here, and I want to ask one other question here, I think it's 
important to go back to this order that the President issued 
and just remind ourselves of the sweeping nature of it. It 
states here that this will apply to an individual as well, 
subject to this order, shall mean an individual who is not a 
United States citizen with respect to whom I determine from 
time to time in writing that first of all, he has reason to 
believe that such individual, at the relevant times, was, or 
is, a member of the organization known as al Qaeda, et cetera. 
Second, it is in the interest of the United States that such 
individual be subject to this order. This is an incredible 
reach of determination, subject solely to the President of the 
United States. To which, then, proceedings apply that can 
include life imprisonment or death. So, you are talking about a 
scope here that is just extraordinary.
    I guess my question is, can we provide these proper due 
process and individual rights and protections and not 
sacrifice, which no one wants to do here, I believe the 
national security interests of the United States? I wish we had 
another 20 minutes, and we don't, for you to respond as to 
exactly what it is in this that pits one of those objectives 
against the other. In the particulars, as one of you used the 
word, but is there anything that any of you believes should be 
established that says that any of these individuals we are 
holding are not innocent until proven guilty? We can hold them, 
from what we were told last week, by the judge advocates. We 
can hold them, whether they're determined, by whatever process 
we use, to be, ``guilty or innocent,'' even if they're innocent 
thereafter. That's where I respectfully question my colleague, 
Senator Inhofe. That's certainly the opposite of a right that 
he claims is not accorded to American citizens, regarding 
criminal actions, we're applying to these individuals.
    But, does anybody suggest that we start with a proposition 
that these people are guilty until somehow demonstrated 
innocent? Is that antithetical to our national security 
interests in any way?
    Ms. Massimino. That we presume that they're guilty?
    Senator Dayton. Well, I'm stating in the opposite.
    Ms. Massimino. Yes.
    Senator Dayton. Is there any need for an exception to the 
principle that they are not innocent until proven guilty?
    Ms. Massimino. No, I don't believe there is. I think that 
you've heard from most of the panelists here that principle is 
one of the hallmarks of a fair judicial proceeding. I think 
you're right to go back and look at and notice the sweeping 
nature of the original order, because it's relevant to the way 
in which you all will approach the task at hand.
    I believe that the military orders and instructions that 
came out to implement that order were to be fair, an attempt to 
take that fundamentally flawed structure, which you just read 
from, and to try to make it fairer and to better approximate a 
system of justice that the military officers were involved in, 
in producing those rules, would be more comfortable with. They 
ultimately failed. But I think that we can learn a lesson from 
that approach and say there were many of those engaged in that 
effort who would have preferred to have started with the UCMJ. 
Now we have a second chance.
    Senator Dayton. As you stated in your opening testimony, 
and I appreciate that.
    My time has expired, too. I thank you. It's been an 
excellent set of presentations and discussion.
    I apologize, in advance, to the second panel. I have to 
leave for another commitment, but I'll pass it on to Madam 
Chairman.
    Senator Collins [presiding]. Thank you.
    First, let me explain and apologize to the panel for not 
being here for your statements and the previous testimony. I 
was chairing a hearing in another committee, and we don't yet 
allow cloning, although it would be helpful, at times.
    We have heard a great deal of testimony about how to best 
craft a system to prosecute the enemy combatants. I've been 
struck by the number of times the military commissions created 
by the President's order deviate from the procedures with 
courts-martial. One area that has caused me considerable 
concern is the dilemma of, how do we handle classified 
information that is relevant to the case? The Supreme Court 
seems to be telling us that we cannot keep certain evidence 
from the accused or their civilian attorneys, but I am also 
concerned that we not compromise sensitive intelligence sources 
or methods, or reveal those in the process.
    I'd like to go across the entire panel and ask each of you, 
what specific guidance can you give us to allow us to craft 
rules regarding evidence that strike an appropriate balance, in 
your judgment, between the rights of the accused to have access 
to relevant evidence and our country's need to protect 
intelligence sources and methods?
    Ms. Massimino. I could comment briefly on that. I would 
advise, first of all, that we not jump to a proposal to deviate 
from the rules on this question of classified evidence or on 
any of the other issues that have been mentioned by others as 
reasons why the UCMJ and courts-martial procedures are 
inappropriate. I think and I am not the expert on this panel, 
so I defer to the military law experts, and, on the next panel, 
I'm sure you'll hear but I believe that we've approached this, 
to date, with a somewhat impoverished view of the flexibility 
of the military justice system that we have. I think it would 
be more productive, and result in a stronger product, if we 
first try to test the limits of the existing system and look at 
the flexibility of the rules to deal with classified evidence 
before we put that on our list of things that we need to draft 
to deviate from the UCMJ. I will leave it to my colleagues to 
discuss the specifics.
    Senator Collins. Thank you. If we could just go down the 
entire panel.
    Ms. Bierman. Senator, thank you for that question. I'm 
going to echo comments of my colleague, but also approach it 
from 30,000 feet, which is, you start with the fundamental 
right of an accused to see the evidence against him. As you 
suggested, you balance that with national security. There's 
another really good reason to look, again, to the rules that 
the court-martial system has developed over the decades, and 
that's because it's a system that the people who will be 
implementing the military commissions are very familiar with. 
They know it inside and out. They know how to do it. There's a 
question of legitimacy. If the United States were to craft 
rules specifically for these detainees, these accused, to 
ensure the convictions, there's a huge legitimacy issue.
    When we talk about classified, I think we should not forget 
that some of the interrogation techniques that have been used 
against some detainees who may have provided evidence against 
some of these accused, may be, in fact, in that realm. When 
we're talking about classified, we should distinguish between 
and think about the tension between information that is of 
national security interest, because it truly is about our 
national security, and information that is about something that 
should not have happened in the first place.
    I just wanted to point that out. Thank you, Senator.
    Senator Collins. Thank you.
    Mr. Fidell.
    Mr. Fidell. Thank you, Senator.
    The short answer to your question, Senator Collins, is 
there's no need to reinvent the wheel. The President of the 
United States has already covered this entire field amply in 
Military Rule of Evidence 505. I have, anticipating your 
question, brought with me an analysis of the application of 
Rule 505. I believe it will provide all the comfort you might, 
or any Senator might need, on the question of classified 
information.
    With the chairman's, or acting chairman's, permission, I'd 
like to offer this. You are the acting chairman?
    Senator Collins. Right. Temporarily.
    Mr. Fidell. Then, ma'am, if somebody can take this from me.
    Senator Collins. It will be included in the record.
    Thank you.
    Mr. Fidell. Happy to provide it for the record.
    Senator Collins. Thank you. That's very helpful.
    [The information referred to follows:]
      
    
    
      
    Mr. Mernin. Senator, I would defer to Mr. Fidell on this. 
He's my go-to guy on this kind of thing. But I would just point 
out that, first and foremost, there is the fundamental right to 
have access to the evidence which is being used against you. We 
can't, in a fundamental way, deviate from that. By that, I mean 
if there were a prosecution which hinged upon a piece of secret 
evidence that it was felt just absolutely could not be shared 
with the defense or defense's counsel, then at that point, in 
my view, you have problems with the prosecution, at that point. 
Other than that, you find ways to deal with it through 
established procedures of redaction, in camera review, the 
court and the parties review the same evidence, and you deal 
with it. If you reach a breaking point on a particular 
prosecution, then you don't have a prosection.
    I don't want to call anything not a real problem, but there 
aren't going to be, postured as we are now, hundreds of 
military commissions trying these cases. There have been 
various estimates on the number of detainees where what they've 
alleged to have done rise to the level where we're going to see 
these law-of-war commissions. I don't think this is going to be 
as big a problem, in our context, as one might think.
    Senator Collins. Dr. Carafano?
    Dr. Carafano. I don't think it would be a major issue. But 
what I'd like to do, to be as precise as possible, is provide 
my answer for the record.
    [The information referred to follows:]

    The administration and SASC also differ with respect to the rules 
of evidence, compulsory self-incrimination, and handling classified 
information. The appropriate compromise is to defer to the 
administration as it seeks to adopt these procedures to ensure that 
U.S. national security is not compromised in the course of the trials. 
Notably, the administration approach includes robust appellate 
procedures that would allow defendants to appear through a Court of 
Military Commission Review to the DC Circuit Court and, by certiorari, 
to the Supreme Court. This appeal process is an adequate guarantee that 
procedures used to withhold classified information from defendants are 
not abused.

    Senator Collins. Thank you.
    Senator Levin, back to you.
    Senator Levin. I think Chairman Warner wanted to dismiss 
this panel and thank them very much for their great testimony, 
and bring on the next panel.
    Senator Collins. The Senator did that eloquently. I will 
just second his thanks. We very much appreciate your testimony 
today. This is a complicated issue, and it's very helpful to us 
to have your expertise. Thank you.
    I would call the second panel forward, if I had the 
information to do so from the chairman. [Laughter.]
    I'm very pleased to welcome our second panel of 
distinguished legal experts. Neal Katyal is a professor of law 
at Georgetown University. David Schlueter--I'm not sure if I'm 
pronouncing that correctly, is professor of law and director of 
advocacy programs at St. Mary's University. Scott Silliman is a 
professor of the practice of law and Executive Director of the 
Center on Law, Ethics, and National Security, at Duke 
University.
    So, we'll start with Professor Katyal.

   STATEMENT OF NEAL K. KATYAL, PROFESSOR OF LAW, GEORGETOWN 
                           UNIVERSITY

    Mr. Katyal. Thank you very much, Senator Collins, Chairman 
Warner, Senator Levin, and members of the committee, for 
inviting me here. I appreciate the careful attention that 
Congress is devoting to military commissions. Chairman Warner, 
in particular, I appreciate the opening remarks you made. I 
believe that this committee is pursuing exactly the right 
approach in last week's and this week's hearings.
    On November 28, 2001, I testified before the Senate 
Judiciary Committee about the President's then-2-week-old 
commission plan. I warned that Congress, not the President, 
must set this commission plan up. If Congress did not, the 
result would be no criminal convictions and a court decision 
striking these tribunals down. 1,693 days have elapsed since 
that testimony. During that entire time, not a single trial 
took place, nor was a single criminal convicted. It took over 2 
years before anyone was even indicted, and 3 weeks ago, the 
Supreme Court invalidated this scheme.
    I did not come here to gloat. The decision to file a 
lawsuit against the President was the hardest one I've ever 
faced. I previously served as National Security Advisor at the 
Justice Department, and my academic work extolls the idea of a 
strong President, and it builds on the unitary executive theory 
of the presidency. My work in criminal law centers on the need 
for laws to benefit prosecutors.
    In the intervening 4 years, I have never once waivered from 
my belief that it is the prerogative of this body, Congress, 
not the President, to set these rules. I have also learned I 
was wrong when I testified in November 2001. I didn't know much 
about courts-martial at the time. So I emphasized in my 
testimony that, until Congress acted, the baseline would be 
civilian trials. But I've had the privilege of studying the 
military justice system now for the past 4 years, and I've 
learned why they are the envy of the world.
    The Supreme Court's Hamdan decision emphasized that both 
courts-martial and civilian courts can try terrorism cases. 
Justice Stevens's opinion put it simply, ``Nothing in the 
record before us demonstrates that it would be impracticable to 
apply court-martial rules in this case.'' Justice Kennedy 
agreed, ``Congress has prescribed these guarantees for courts-
martial, and there is no evident practical need that explains 
the departures here.'' Indeed, there have been 370 courts-
martial in Iraq and Afghanistan since 2002, compared to zero 
military commission trials.
    I would urge Congress to heed the views of the Supreme 
Court Justices here, for four reasons:
    First, we are talking about only a handful of people here. 
Ten have been indicted thus far, and we hear different numbers. 
Today, one of the prosecutors told me maybe 30 more people 
would be indicted in the military commission system from 
Guantanamo. We should be wary of legislating for such a small 
group, particularly when there is no exigency. As the Hamdan 
decision made clear, these individuals will continue to be 
detained, under existing law, as enemy combatants. Here, we are 
talking about criminal trials, not detention. That's the issue 
before this committee. The function of a trial, as Justice 
Douglas reminds us, is as follows, ``'The function of a 
prosecutor is not to tack as many skins of victims as possible 
against the wall. His function is to vindicate the rights of 
the people, as expressed in the laws, and give the accused of 
crime a fair trial.'' I don't believe we can say that about the 
existing military commission system.
    Second, there is no empirical evidence at all to show that 
the existing court-martial system can't handle these cases. 
Before changing the rules, we should study and attempt to try 
to use the existing system. That is particularly so because, as 
my prepared statement goes into detail at pages 7 to 11, the 
criticisms about hearsay and other evidentiary claims that have 
been levied against the court-martial system seem to me to be 
substantially overblown.
    Third, any amendment to the UCMJ is bound to draw a legal 
challenge, and the greater the deviation from the structure and 
procedure of a regularly constituted court, the more likely it 
is that it will not only be challenged, but invalidated. Any 
such court challenge would delay or cast into uncertainty any 
trial conducted, and that'll leave everything gummed up for yet 
another number of years. In any such trial, moreover, the trial 
system would have to make up the rules as it went along, with 
all the inefficiencies and other problems that entails.
    Because we are talking about the most awesome powers of 
government, the death penalty and life imprisonment, the 
Federal courts will carefully scrutinize these procedures. The 
only way to ensure the system is not tossed out 4 years from 
now is to use one that is battle-tested and approved already. 
Courts-martial and civilian trials meet these tests, military 
commissions do not.
    Finally, we should be wary of any attempt to create two 
tracks of justice, one for us and the other for them. I believe 
Senator McCain said it exactly right last week when he warned, 
``If we somehow carve out exceptions to treaties to which we 
are signatories, then it will make it very easy for our enemies 
to do the same in the case of American prisoners.''
    There is a grave risk that adopting a different system for 
this handful of prisoners will dramatically undermine the image 
of the United States as a fair and just nation. It will look 
like victor's justice, a spoiled system, instead of the rule of 
law.
    Any claim to benefit from legislation has to be weighed 
against these practical difficulties. To those, has to be added 
the sorry experience with the military commission system, a 
system in which I have served now for several years, a system 
that its own prosecutors have said is fundamentally unfair. By 
departing from the existing institution, and, in particular, 
the proud Court of Appeals for the Armed Forces, and the 
existing rules, delay, not bringing folks to justice, will be 
the inevitable result.
    As the chairman has said repeatedly, the eyes of the world 
are upon us. What Congress does here may establish a legal 
framework for generations to come. This is a crucial moment, 
not just for this body, but for the Nation, as a whole. In my 
judgment, we should proceed with caution and study, and do 
everything in our power to make sure we need a new system 
before gambling once again on an unproven one. Given the 
existing numbers of different ways in which people can be 
prosecuted today in courts-martial and civilian trials, and 
given the detention power which already exists and is given to 
the President, the first rule should be to do no harm. We had 
not had a military commission trial in 55 years. If this body 
has to rush legislation through to meet an October deadline, it 
seems to me quite dangerous results may unfold. The safest 
course, it seems to me, given the existing detention power, and 
given the existing prosecution alternatives, is to do no harm. 
Let's do it right the first--or, I guess, rather, we could say, 
the second time, at this point, and doing it right is also the 
fastest and best way.
    My closing to you, Senators, is the same as my closing to 
the United States Supreme Court, which is to quote the great 
American patriot, Thomas Payne: ``He that would make his own 
liberty secure must guard even his enemy from oppression, for 
if he violates this duty, he establishes a precedent that will 
reach unto himself.''
    Thank you very much.
    [The prepared statement of Mr. Katyal follows:]

              Prepared Statement by Professor Neal Katyal

                              introduction

    Thank you, Chairman Warner, Senator Levin, and members of the Armed 
Services Committee, for inviting me to speak to you today. I appreciate 
the careful attention that your committee, and that Congress as a 
whole, is devoting to the issue of military commissions.
    On November 28, 2001, I testified before the full Senate Judiciary 
Committee about the President's then 2-week-old plan to try suspected 
terrorists in ad hoc military commissions. I warned that committee that 
Congress, not the President, must set up the commissions, and that if 
Congress did not, the result would be no criminal convictions and a 
Supreme Court decision striking these makeshift tribunals down.
    One thousand six hundred ninety three days have elapsed since my 
testimony before the Judiciary Committee. During that entire time, not 
a single trial took place, nor was a single criminal convicted, in 
these military commissions. It took over 2 years before anyone was even 
indicted in a military commission. On June 29, 2006, the Supreme Court 
invalidated this scheme devised by presidential fiat.
    I did not come here to gloat. The decision to file a lawsuit 
against the President was the hardest professional decision I have ever 
faced. I previously served as a National Security Adviser at the United 
States Department of Justice (DOJ), and my academic work extols the 
idea of a strong President in a time of crisis, adopting the ``unitary 
executive'' theory of the Presidency. My work in criminal law centers 
on the need for tough laws that benefit prosecutors, and ways State and 
local governments can innovatively control crime.
    But, despite the fact that I think courts should defer to the 
President overwhelmingly, I felt the decision to adopt military 
commissions by executive decree encroached on the constitutional 
prerogatives of this body, the Congress of the United States. So I 
filed suit, along with Lieutenant Commander Charles D. Swift of the 
United States Navy and Perkins Coie, a law firm in Seattle. I spent the 
last 4 years working on what ultimately became the Supreme Court's 
decision in Hamdan v. Rumsfeld.\1\ I argued that case before the 
Supreme Court of the United States, as well as the United States 
District Court for the District of Columbia, and the United States 
Court of Appeals for the District of Columbia Circuit.
---------------------------------------------------------------------------
    \1\ Hamdan v. Rumsfeld, 548 U.S. (slip op.) (2006).
---------------------------------------------------------------------------
    In the intervening 4 years, I have never wavered from my belief 
that it is the prerogative of Congress, not the President, to create a 
court system. But I have also learned that I was wrong when I testified 
in November 2001. I didn't know much about courts martial at the time, 
and so I emphasized that until Congress acted, the baseline would be 
Federal civilian court trials.
    I've had the privilege of studying the military justice system over 
the past 4 years, and have learned why they are the envy of the world. 
The Supreme Court's Hamdan decision emphasized that both courts martial 
and civilian courts can try terrorism cases. Justice Stevens' opinion 
put it simply, ``Nothing in the record before us demonstrates that it 
would be impracticable to apply court-martial rules in this case.'' \2\ 
Justice Kennedy agreed, noting that ``Congress has prescribed these 
guarantees for courts-martial; and no evident practical need explains 
the departures here.'' \3\ Indeed, there have been 370 courts-martial 
in Iraq and Afghanistan since 2002, compared to zero military-
commission trials.\4\
---------------------------------------------------------------------------
    \2\ Hamdan (slip op. at 60).
    \3\ Id. (slip op. at 16) (Kennedy, J., concurring).
    \4\ The delay cannot be blamed on civil litigation challenging the 
tribunals, since the first injunction was not entered until November 8, 
2004 and that injunction only applied to the Hamdan case.
---------------------------------------------------------------------------
    I would urge Congress and this committee to heed the words of the 
Supreme Court, and to employ our military justice system that this body 
has so carefully and successfully designed. It has worked well for 55 
years. In other words, if it ain't broke, don't fix it.
    That said, we must also not lose sight of the fact that our 
existing Federal civilian system has worked well in combating 
terrorism. Indeed, the DOJ recently extolled its resounding success in 
terrorism cases in Federal civilian court--where it has proceeded with 
nearly 500 terrorism prosecutions.\5\
---------------------------------------------------------------------------
    \5\ Remarks of Deputy Attorney General McNulty, American Enterprise 
Institute, May 24, 2006.
---------------------------------------------------------------------------
    I believe that the Hamdan decision--which invalidated the 
President's system of military commissions--represents a historic 
victory for our constitutional process, and, in particular, the role of 
the United States Congress and Federal judiciary in our tripartite 
system of government. But I am here to help you determine appropriate 
steps, consistent with the Court's opinion, for identifying a process 
that will handle cases against suspected terrorists held at Guantanamo 
Bay and around the world and that will reflect our country's honored 
commitment to fairness, to equality, and to justice for all.
    I commend this committee, and the chairman in particular, for 
proceeding along a very sensible and wise path. I believe the chairman 
stated it perfectly last week:

          [I]n my judgment, as a Congress, in this legislation, must 
        meet the tenets and objectives of that [Hamdan v. Rumsfeld] 
        opinion. Otherwise, such legislation that we will devise and 
        enact into law might well be struck down by subsequent Federal 
        court review. That would not be in the interests of this 
        Nation.
          The eyes of the world are on this Nation as to how we intend 
        to handle this type of situation and handle it in a way that a 
        measure of legal rights and human rights are given to 
        detainees.

    Remarks of Senator John Warner, Hearing on the Future of Military 
Commissions to Try Enemy Combatants, July 13, 2006. The eyes of the 
world are indeed upon us, and what Congress does here may establish a 
legal framework for the war on terror for generations to come. We 
should proceed with caution and study the problem first, and do 
everything in our power to be sure that we need a new system before 
gambling once again on an unproven one. Given the number of different 
existing avenues for prosecution and detention of those at Guantanamo, 
the first rule should be for this body to do no harm.
                   i. the flawed military commissions
    To understand the appropriate next steps, I believe it is necessary 
to highlight for the committee several of the fatal--possibly 
irreparable--flaws in the military commissions under the President's 
Order of November 13, 2001.\6\ I think that these defects illuminate 
why any attempt to start with or ratify the President's Order would be 
a serious mistake.
---------------------------------------------------------------------------
    \6\ Detention, Treatment, and Trial of Certain Non-Citizens in the 
War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 13, 2001) (hereinafter 
``Presidential Order'' or ``Order'').
---------------------------------------------------------------------------
    The purpose of a criminal trial is to test the Government's 
allegation that a person has committed a crime. The goal of a trial is 
not to secure a conviction, it is to convict the guilty. In serving 
this purpose, a trial does not involve the detention power. As the 
Supreme Court said in Hamdan, a true enemy combatant can still lawfully 
be held regardless of a trial. The military commission's sole purpose 
is to determine whether an individual is guilty of a crime. The only 
way a trial can adequately prove guilt or innocence, to the American 
people and to the world, is when it employs procedures that enable the 
court to sift the facts from allegations, and that enable it to 
demonstrate publicly a defendant's guilt--beyond a reasonable doubt. 
Unless it does that, a procedure--whether one calls it a military 
commission, a court-martial, or something else--simply does not count. 
It is not a court in any sense that Americans would recognize. Such a 
``trial'' would shame the proud traditions of both American military 
and civilian justice.
    As my colleague Lieutenant Commander Swift explained to the Senate 
Judiciary Committee last week, the commissions consistently failed to 
meet these proud traditions, both in design and in execution.\7\ 
Although the commissions were established pursuant to the President's 
Order in November 2001, a prosecutor and defense counsel were not even 
appointed until 2003. It took another year, until 2004, until someone 
was even charged. Hamdan's case is instructive: he was captured in 
2001, but the President did not designate him eligible for a commission 
trial until July 2003. But he was not charged with an offense at that 
time; rather, he was placed in solitary confinement and, despite a 
demand for speedy charges, Hamdan was not charged with any crime for 
another year.\8\ In fact, the Federal lawsuit in Hamdan v. Rumsfeld 
preceded the filing of charges--one of the main demands of the lawsuit 
was that Hamdan be charged because the prosecution was sitting on the 
case while Hamdan was stuck in solitary confinement.
---------------------------------------------------------------------------
    \7\ Hamdan v. Rumsfeld: Establishing a Constitutional Process, 
Hearing before the S. Comm. on the Judiciary, 109th Cong. (July 11, 
2006) (statement of Lieutenant Commander Charles Swift), available at 
http://judiciary.senate.gov/testimony.cfm?id=1986&wit--id=5510 
[hereinafter ``Swift Testimony''].
    \8\ Hamdan, (slip op. at 4) (Stevens, J.).
---------------------------------------------------------------------------
    The commissions denied Hamdan many fundamental rights, including 
the right to be present at his own trial and to confront the evidence 
against him. As Justice Stevens explained, the commissions startlingly 
provided that any confrontation ``rights'' could be eviscerated at the 
discretion of a single individual: ``The accused and his civilian 
counsel may be excluded from, and precluded from ever learning what 
evidence was presented during, any part of the proceeding that either 
the Appointing Authority or the presiding officer decides to `close.' 
'' \9\ The government created this gaping exception without ever 
explaining how it could operate consistently with its assurance of a 
full and fair trial.\10\ The reason that they did not offer a 
justification on this point is clear: the two are patently 
incompatible. The accused's right to be present and to confront the 
evidence against him are indisputably ``the most fundamental 
protections afforded not just by the Manual for Courts-Martial but also 
by the Uniform Code of Military Justice (UCMJ) itself.'' \11\ As 
Justice Scalia recently observed for the Supreme Court, ``It is a rule 
of the common law, founded on natural justice, that no man shall be 
prejudiced by evidence which he had not the liberty to cross examine.'' 
Crawford v. Washington, 541 U.S. 36, 49 (2004) (quoting State v. Webb, 
2 N.C. 103 (1794)).
---------------------------------------------------------------------------
    \9\ Id. (slip op. at 50).
    \10\ Id. (slip op. at 71 n. 67) (``[T]he Government suggests no 
circumstances in which it would be `fair' to convict the accused based 
on evidence he has not seen or heard.'').
    \11\ Id. (slip op. at 61).
---------------------------------------------------------------------------
    The military commissions contained myriad other flaws that made 
them unlawfully biased: they allowed the prosecution to withhold 
exculpatory evidence from the defense. They dispensed with time honored 
evidentiary standards, such as the prohibition against hearsay.\12\ 
They countenanced woefully inadequate rules to govern the impartiality 
of proceedings and participants. For example, the Appointing 
Authority--the very same individual who convenes and refers charges 
against individuals to the military commissions--was given a 
breathtaking amount of power over the establishment and proceedings of 
the commissions: to select members who vote on guilt or innocence, to 
oversee the chief prosecutor, to approve or disapprove plea agreements, 
to close commission proceedings, and to answer interlocutory questions 
from the presiding officer.\13\
---------------------------------------------------------------------------
    \12\ See id. (slip op. at 51) (``Another striking feature of the 
rules governing Hamdan's commission is that they permit the admission 
of any evidence that, in the opinion of the presiding officer, `would 
have probative value to a reasonable person.' Under this test, not only 
is testimonial hearsay and evidence obtained through coercion fully 
admissible, but neither live testimony nor witnesses' written 
statements need be sworn.'') (internal citations omitted).
    \13\ Id. (slip op. at 12-15) (Kennedy, J., concurring).
---------------------------------------------------------------------------
    In addition to these procedural and structural flaws, the military 
commissions suffered from a dangerous conceptual mistake. The 
government wrongly asserted that the military commissions were not 
bound to enforce the laws of war. This assertion--roundly rejected in 
the Court's opinion--ignored Congress' clear mandate in the UCMJ, our 
longstanding treaty commitments, the Supreme Court's precedent, and our 
Nation's historical understanding that commissions must comply with the 
laws of war.
    This divergence from the laws of war was in no way hypothetical. 
Hamdan was charged with an offense--conspiracy--that is not even 
recognized in the laws of war.\14\ As Justice Stevens explained, the 
Government ``has failed even to offer a `merely colorable' case for 
inclusion of conspiracy among those offenses cognizable by law-of-war 
military commission.'' \15\ Further, the government's assertion was 
based on an erroneously cramped reading of the canonical statement of 
the laws of war: the Geneva Conventions. There is at least one 
provision of the Geneva Conventions that, regardless of whether a 
conflict is between signatories, applies with ``as wide a scope as 
possible''--including to the conflict with al Qaeda. That provision is 
known as Common Article 3, because it was so essential as to be 
included in each of the four Geneva Conventions concluded in 1949.\16\ 
Notably, Common Article 3 requires that Hamdan be tried by a 
``regularly constituted court,''--which these irregular, ad hoc 
military commissions cannot satisfy.
---------------------------------------------------------------------------
    \14\ See id. (slip op. at 43-49) (Stevens, J.) (plurality).
    \15\ Id. at 48 (plurality).
    \16\ See id. (slip op. at 66). Of the four Geneva Conventions, the 
most relevant is the Geneva Convention (III) Relative to the Treatment 
of Prisoners of War, Aug. 12, 1949, [1955] 6 U.S.T. 3316, T.I.A.S. No. 
3364 (``GPW'').
---------------------------------------------------------------------------
    Finally, as if to underscore that Hamdan was at the mercy of a 
hastily constituted system, rather than a regularly constituted court--
even these biased procedures were subject to change by the stroke of a 
pen. Most notably, the Department of Defense (DOD) issued a new order 
restructuring the military commissions just 1 week before the 
government was due to submit a brief in opposition of certiorari.\17\ 
They changed the rules multiple times, including one change literally 
on the eve of oral argument in the Supreme Court, when the Pentagon 
issued a press release stating that it had prohibited testimony 
obtained by torture from being introduced in the military commissions. 
(In actuality, even that rule change was cosmetic, since the actual 
instruction only prohibited such testimony when the prosecution stated 
it was obtained by torture, and provided no discovery rights to find 
out whether testimony was, in fact, obtained by torture). In addition, 
the President's order explicitly disclaimed that Hamdan had any 
rights--even merely to enforce the procedures established by the 
order.\18\
---------------------------------------------------------------------------
    \17\ See id., (slip op. at 49-50) (noting that the order governing 
the commissions' procedures ``was amended most recently on August 31, 
2005--after Hamdan's trial had begun''); Gov't Br. in Opposition to 
Certiorari, Hamdan v. Rumsfeld, No. 05-184, 2005 WL 2214766 at *5 n.3 
(Sept. 7, 2005) (``On August 31, 2005, Secretary Rumsfeld approved 
changes to the military commission procedures. . .'').
    \18\ See President's Order \7(c) (``This order is not intended to 
and does not create any right, benefit, or privilege, substantive or 
procedural, enforceable at law or equity by any party, against the 
United States, its departments, agencies, or other entities, its 
officers or employees, or any other person.'').
---------------------------------------------------------------------------
    For all of these reasons and more, military lawyers involved in 
both the prosecution and the defense recognized that these commissions 
lacked the integrity they had come to expect from the military justice 
system throughout their careers.\19\ It is in that system--the one 
those military lawyers knew and insisted upon--that this Congress will 
find the best way forward.
---------------------------------------------------------------------------
    \19\ Swift Testimony, supra, at 1.
---------------------------------------------------------------------------
       ii. courts-martial: a respected, experienced institution.
    The military already has a battle-tested system for dealing with 
the problem of trying our enemies: courts-martial. In 1950, Congress 
adopted the UCMJ, a step that revolutionized military law. It built a 
system based on fundamental respect for our Nation's traditions as well 
as international law. The result was a military-justice system that is 
the envy of the world. We should only break from that proud American 
tradition for the best of reasons, supported with specific hard facts. 
There are no such reasons here, and changing the rules now may be 
another fruitless step backward from the important goal of bringing 
terrorists to justice. Indeed, rather than searching for ways to 
resuscitate the failed military commissions, this committee, and 
Congress as a whole, should affirm this proud American tradition of 
military justice in those cases in which suspected terrorists cannot be 
tried by civilian courts.
    Our civilian courts, after all, have handled a variety of 
challenges and complicated cases, from the trial of the Oklahoma City 
bombers to spies such as Aldrich Ames. They have tried the 1993 World 
Trade Center bombers, Manuel Noriega, and dozens of other sensitive 
cases. They have prosecuted cases where the crimes were committed 
abroad. They have prosecuted hundreds of terrorism cases since 
September 11.
    I am well aware that some organizations, including the CATO 
Institute, filed briefs in Hamdan arguing that only the Federal 
civilian justice system was appropriate. I do not take that position, 
because I can imagine that there are reasons why we may want to have an 
alternative to the civilian justice system. I take it that this was the 
point of Congress' 1916 statute, still on the books, that gives courts 
martial the ability to try violations of the laws of war. See 10 U.S.C. 
818. That statute, as the Supreme Court emphasized in Hamdan v. 
Rumsfeld, provides the President with the power to try terrorism cases 
in courts martial.
    Courts martial are tooled up, under existing authority, for 
handling terrorism cases. They offer a thorough, respected, and 
established justice system that is accustomed to handling the inherent 
security risks and logistical problems of trials for crimes against the 
laws of war. I would urge this committee to tread carefully before 
assuming otherwise. This is one area where a solution may be worse than 
the disease. Consider four basic reasons why this is the case.

         First, the Hamdan decision only blocked the trials of 
        10 individuals. Before rushing to legislate for these 10 men, 
        we should be absolutely convinced of the need for legislation.
         Second, courts-martial have tremendous flexibility 
        today, and can handle the complexities of foreign cases.
         Third, any attempt to resuscitate the military 
        commissions by tinkering with their precise procedures will get 
        bogged down in litigation that may continue for years.
         Fourth, creating two systems of justice, one for 
        ``us,'' and one for ``them,'' will look like victor's justice 
        and have little credibility in the eyes of the world. The 
        court-martial system already commands international respect.

a. Legislation for a Handful of Individuals is Unwise
    Only about 10 individuals are presently indicted by the military 
commissions and those indictments took over 4 years to prepare. To 
create an entirely new legal system for these 10 individuals and to 
attempt to do it reasonably promptly is unprecedented. I am aware that 
there have been some statements that 75 individuals would be designated 
for trial before these commissions, but a prosecutor in the Office of 
Military Commissions last week stated that he was not aware of more 
than 10 additional cases that could be prosecuted in them.
    As Senator Graham reminded us last week, in each of these 10 cases, 
the individuals are being held as ``enemy combatants,'' and are unable 
to go free under existing law--whatever Congress decides about 
prosecution. Even if Congress abolished military commissions, courts-
martial, and civilian-trial jurisdiction tomorrow, these individuals 
would still be detained at Guantanamo Bay as enemy combatants. Justice 
Stevens' opinion for the Court recognized that present legal status in 
Hamdan itself, stating that the detention issue was not before it. 
There are, to be sure, two cases pending in the United States Court of 
Appeals for the District of Columbia Circuit, in which individuals are 
seeking the right to challenge their detention, but even if the 
detainees win those cases, it is widely expected that they will wind up 
at the Supreme Court. Even if the Court were to decline certiorari, 
they would then go back to the trial courts for factual hearings and 
oral argument, none of which will set any detainee free, even an 
entirely innocent one, for a very long time.
    This is, in short, one of the worst factual contexts for new 
legislation. The legislation would be created for only a small number 
of people, all of whom have already been confined for years, and all of 
whom will continue to be locked up regardless of any legislation that 
Congress passes. To boot, each of those men is already amenable to 
trial in court-martial and in a Federal district court.
b. Courts-Martial Have Tremendous Flexibility and International Respect
    The existing court-martial system offers significant promise in 
handling terrorism cases.\20\ We've had courts-martial on the 
battlefields of Afghanistan and Iraq. The ``jury'' hearing terrorism 
cases all have security clearances. Military rules already permit 
closure of the courtroom for sensitive national-security information, 
authorize trials on secure military bases far from civilians, enable 
substitutions of classified information by the prosecution, permit 
withholding of witnesses' identities, and the like. The UCMJ, in short, 
has flexible rules in place that permit trials under unique 
circumstances, and there is no reason to think that they cannot handle 
these cases today.
---------------------------------------------------------------------------
    \20\ Cf. Hamdan (slip op. at 49 n.41) (``That conspiracy is not a 
violation of the law of war triable by military commission does not 
mean the Government may not, for example, prosecute by court-martial or 
in Federal court those caught `plotting terrorist atrocities like the 
bombing of the Khobar Towers.' '')
---------------------------------------------------------------------------
    In Curry v. Secretary of the Army, 595 F.2d 873 (CADC 1979), the DC 
Circuit rejected a constitutional challenge by a U.S. servicemember to 
certain structural aspects of the UCMJ. Noting that the UCMJ was 
designed to work in peace time and in war time, the court stated:

          Obedience, discipline, and centralized leadership and 
        control, including the ability to mobilize forces rapidly, are 
        all essential if the military is to perform effectively. The 
        system of military justice must respond to these needs for all 
        branches of the Service, at home and abroad, in time of peace, 
        and in time of war. It must be practical, efficient, and 
        flexible.

593 F.2d at 877. When drafting the Code, its principal author, Edmund 
Morgan, emphasized that it struck a flexible balance between fairness 
for defendants and operation within a military scheme.

          It was recognized from the beginning by the committee that a 
        system of military justice which was only an instrumentality of 
        the commander was as abhorrent as a system administered 
        entirely by a civilian court was impractical. . . We were 
        convinced that a Code of Military Justice cannot ignore the 
        military circumstances under which it must operate but we were 
        equally determined that it must be designated to administer 
        justice. We, therefore, aimed at providing functions for 
        command and appropriate procedures for the administration of 
        justice. We have done our best to strike a fair balance, and 
        believe that we have given appropriate recognition of each 
        factor.

H.R. 2498 at 605-06 (1949) (Statement of Prof. Edmund Morgan). Those 
who have practiced within the military law system understand this well. 
As F. Lee Bailey once put it:

          The fact is, if I were innocent, I would far prefer to stand 
        trial before a military tribunal governed by the UCMJ than by 
        any court, State or Federal. I suppose that if I were guilty 
        and hoping to deceive a court into an acquittal or create a 
        reasonable doubt in the face of muddled evidence, I would be 
        fearful of a military court because their accuracy in coming to 
        the ``correct'' result (in fact and not simply a legally 
        correct result, which means only a fair trial, and not that 
        guilty men are found guilty or that innocent men are acquitted) 
        has a far better accuracy rate than any civilian court has ever 
        approached.\21\
---------------------------------------------------------------------------
    \21\ F. Lee Bailey, For the Defense 38 (1976).

    I have listened over the past week to testimony by various 
administration officials, who now say what they have not been saying 
for the past 4 years, that courts-martial are unable to try these 
cases. At a minimum, I would strongly urge the committee to inquire, in 
detail (and perhaps in closed proceedings if necessary) about the 10 
current indictments and why they think a court-martial cannot handle 
them--and to have defense counsel who possess security clearances 
present at the hearing to respond. I know of no reason why a court-
martial would be unable to handle a trial like that of Salim Hamdan, 
should an al Qaeda member be captured today. Indeed, the 
impracticability determination required by section 836 would best stand 
up in court after empirical evidence is generated showing that current 
court-martial rules cannot be applied.
    The administration witnesses thus far have listed a parade of 
horribles that supposedly follow from the UCMJ. In the 4 days since 
this committee has invited me to testify, I have undertaken a quick 
examination of the code, and my expedited examination suggests that 
each claim is considerably overstated:

         Miranda Warnings. Article 31(b) of the UCMJ does 
        contain a heightened Miranda requirement. But our Nation's 
        highest military court has held that an interrogation for 
        purposes of intelligence gathering was not subject to this 
        requirement, and that evidence obtained without a 31(b) warning 
        can be admitted into a court-martial proceeding. United States 
        v. Lonetree, 35 M.J. 396 (C.M.A. 1992). Military appellate 
        courts have repeatedly held Article 31(b) warnings are required 
        only for ``a law-enforcement or disciplinary investigation.'' 
        See, e.g., United States v. Loukas, 29 M.J. 385, 387 (C.M.A. 
        1990). They are not required when questioning is conducted for 
        ``operational'' reasons. Id. at 389. The notion that soldiers 
        in the field would be required to give Article 31(b) warnings 
        to potential enemy combatants whom they encounter or detain is 
        simply not true. Nor would U.S. personnel interrogating 
        potential enemy combatants for intelligence purposes be 
        required to provide Article 31(b) rights.
         Hearsay. The 800 series of the Military Rules of 
        Evidence generally track the Federal Rules of Evidence, though 
        the military's business records exception is far broader than 
        the civilian rule, expressly allowing the admission of such 
        records as ``forensic laboratory reports'' and ``chain of 
        custody documents.'' The hearsay rules, including Military Rule 
        of Evidence 807's residual hearsay exception, are actually 
        quite flexible. They are designed to promote accuracy by 
        allowing in forms of hearsay that are reliable and excluding 
        forms of hearsay that are unreliable. These rules should be 
        embraced, not feared.
          In his testimony before both the Senate Armed Services 
        Committee and the House Armed Services Committee, Assistant 
        Attorney General Bradbury said that both the International 
        Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda 
        (ICTR) allowed hearsay evidence. For example, he told the 
        Senate Armed Services Committee that ``a good example to look 
        to is the international criminal tribunals, for example, for 
        the former Yugoslavia and for Rwanda, which regularly allow the 
        use of hearsay evidence, as long as the evidence is probative 
        and reliable in the determination of the factfinder, and as 
        long as it is not outweighed by undue prejudice.''
          As I understand it, however, the rules of both ICTY and ICTR 
        include an important and major restriction to the rule allowing 
        hearsay to the point of making it virtually irrelevant for the 
        current military commissions debate--an exception that Acting 
        Assistant Attorney General Bradbury did not mention. Under Rule 
        92 bis of both ICTY's and ICTR's rules, the trial chamber may 
        choose to admit ``a written statement in lieu of oral 
        testimony'' unless such a statement would prove ``acts and 
        conduct of the accused as charged in the indictment.'' The 
        trial chamber trying Slobodan Milosevic emphasized that 
        ``regardless of how repetitive [written statement] evidence is, 
        it cannot be admitted if it goes directly to the acts or 
        conduct of the accused.'' Prosecutor v. Milosevic, ICTY Case 
        No. IT-02-54, P 8 (Mar. 21, 2002).\22\
---------------------------------------------------------------------------
    \22\ ``There is also a brand new Rule 92 bis providing for the 
admission of a witness's written statement, so long as it does not go 
to proof of the conduct or acts of the accused.'' Patricia M. Wald, To 
``Establish Incredible Events by Credible Evidence'': The Use of 
Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings, 42 
Harv. Int'l L.J. 535, 548 (2001). As the Appeals Chamber made clear in 
Prosecution v. Galic, ``There is a clear distinction to be drawn 
between (a) the acts and conduct of those others who commit the crimes 
for which the indictment alleges that the accused is individually 
responsible, and (b) the acts and conduct of the accused as charged in 
the indictment which establish his responsibility for the acts and 
conduct of those others. It is only a written statement which goes to 
proof of the latter acts and conduct which Rule 92 bis (A) excludes 
from the procedure laid down in that rule.'' Prosecutor v. Galic, ICTY 
Case No. IT-98-29-AR73.2, at 1 (June 7, 2002) (ICTY Judicial Supplement 
No. 34, decision on interlocutory appeal concerning Rule 92 bis (C)).
      The Appeals Chamber also emphasized that ``the purpose of Rule 92 
bis is to restrict the admissibility of this very special type of 
hearsay to that which falls within its terms, and a party is not 
permitted to tender a written statement given by a prospective witness 
to an investigator of the Office of the Prosecutor under Rule 89(C) in 
order to avoid the stringency of Rule 92 bis.'' Id. (footnote omitted).
---------------------------------------------------------------------------
          Those who rely on ICTY evidence rules would also do well to 
        consider that the factfinders in those tribunals are all 
        legally-trained individuals and judges who are used to certain 
        standards of evidence, and who know how to discount evidence 
        that does not meet traditional indicia of reliability. The 
        military commission, by contrast, has an untrained, lay, system 
        of factfinders, all of whom may have differing assumptions 
        about such matters. Rules of evidence are drafted, in part, to 
        guide lay ``jurors'' and avoid evidence that might be 
        inflammatory or probative in the minds of the untrained.
         Warrants. Under Military Rule of Evidence 315(e)(4), 
        evidence obtained during a search in a foreign country will be 
        admissible even if it is seized without a warrant. 
        Additionally, under Mil. R. Evid. 314(g)(4) if the Constitution 
        does not require a warrant then the court-martial will not 
        require one either.
         Protection of Witnesses. Mil. R. Evid. 507 allows 
        protection of identity of witnesses.
         Chain of Custody. Mil. R. Evid. 901-903 deal with the 
        admission of documents--and these rules make introduction of 
        evidence easy, not difficult. The proponent of evidence can use 
        various methods to authenticate it and is not tied to any rigid 
        step-by-step authentication techniques. Stephen A. Saltzburg et 
        al., Military Rules of Evidence Manual 9-4 (5th ed. 2003). 
        Military Rule of Evidence 901 requires only a showing of 
        authenticity through either direct or circumstantial evidence. 
        Id. Under the identical Federal Rule 901(a), ``There is no 
        single way to authenticate evidence. In particular, the direct 
        testimony of a custodian or a percipient witness is not a sine 
        qua non to the authentication of a writing. Thus, a document's 
        appearance, contents, substance, internal patterns, or other 
        distinctive characteristics, taken in conjunction with 
        circumstances, can, in cumulation, even without direct 
        testimony, provide sufficient indicia of reliability to permit 
        a finding that it is authentic.'' United States v. Holmquist, 
        36 F.3d 154, 167 (1st Cir. 1994) (citations and internal 
        quotation marks omitted), cert. denied, 514 U.S. 1084 (1995). 
        Additionally, ``[m]ere breaks or gaps in the chain [of custody] 
        affect only the weight of the evidence, and not its 
        admissibility.'' Saltzburg, supra, at 98; see also United 
        States v. Hudson, 20 M.J. 607 (A.F.C.M.R. 1985) (noting the 
        trial judge has broad discretion in ruling on chain of custody 
        matters and that all that is required is that it be reasonably 
        certain that the ``exhibit has not been changed in any 
        important aspect.''). Military courts will dispense with any 
        requirement for a chain of custody for items that are unique in 
        appearance. See, e.g., United States v. Thomas, 38 M.J. 614 
        (A.F.C.M.R. 1993); United States v. Parker, 10 M.J. 415 (C.M.A. 
        1981).\23\
---------------------------------------------------------------------------
    \23\ Indeed, the International Criminal Tribunal for the Former 
Yugoslavia (ICTY), even though it is structured without a judge and 
jury, uses an authentication rule similar to Military Rule of Evidence 
901. See Prosecutor v. Mucic, Trial Chamber Decision on the Motion of 
the Prosecution for the Admissibility of Evidence (Jan. 19, 1998) 
available at http://www.un.org/icty/celebici/trialc2/decision-e/
80119EV21.htm. The ICTY considers the issue of authentication so 
important that in some cases the court employs its own experts in 
determining the authenticity of evidence. See Prosecutor v. Milosevic, 
Case No. IT-02-54-T, Trial Chamber III Final Decision of the 
Admissibility of Intercepted Communications in the case of (June 14, 
2004) available at http://www.un.org/icty/milosevic/trialc/decision-e/
040614.htm.
---------------------------------------------------------------------------
         Classified Evidence. A court-martial, unlike a 
        civilian trial, can take place with a ``jury'' composed of 
        individuals who possess security clearances. Existing rules 
        permit courts-martial to be closed to the public and press. 
        Mil. R. Evid 505(j); R.C.M. 806. If the accused at any stage of 
        a trial seeks classified information, the government may ask 
        for an in camera (closed) proceeding to discuss the use of the 
        information in trial. Mil. R. Evid. 505(i). During this 
        session, the military judge hears arguments from both sides on 
        whether disclosure ``reasonably could be expected'' to harm 
        national security prior to the accused or his lawyer being made 
        privy to the classified information. Only ``relevant and 
        necessary'' classified information to the prosecution's or 
        accused's case can be made available. Mil. R. Evid. 505(i).
          In one court-martial espionage case tried under Mil. R. Evid. 
        505's procedures, the military judge allowed an intelligence 
        agent to testify under a pseudonym and his real name was never 
        disclosed to the defense. The Court of Military Appeals upheld 
        that procedure and the United States Supreme Court denied the 
        accused's request to review that decision. United States v. 
        Lonetree, 35 M.J. 396 (C.M.A. 1992), cert. denied, 507 U.S. 
        1017 (1993).
          The military rules of evidence already provide alternatives 
        to disclosure of classified information, which include: 
        redaction of the classified information; substitution of an 
        unclassified description or summary of the classified 
        information; substitution of a statement admitting the relevant 
        facts the classified information would tend to prove; or full 
        withholding of disclosure. Mil. R. Evid. 505(d). Courts-martial 
        also grant broad privileges for withholding information when it 
        is ``detrimental to the public interest.'' Mil. R. Evid. 
        506(a).

    The most troubling thing about the testimony that administration 
officials have provided over the past week is that they have read the 
UCMJ in the most selective, condemning manner possible. Their reading 
is in considerable tension with the way they have been reading other 
statutes for the past 4 years, including the 1978 Foreign Intelligence 
Surveillance Act and the 2001 Authorization for the Use of Military 
Force. In those settings, they have emphasized the flexibility and 
open-endedness of statutes, and supplemented their readings with 
caselaw interpreting the provisions. But here, they are reading the 
statutes in the most restrictive way possible. Nothing they have said 
thus far justifies this skepticism. Before this body accepts such 
skepticism, it should have, at a minimum, some empirical evidence 
showing that courts-martial cannot try these cases, instead of a rather 
questionable projection by a prosecuting branch.
    Moreover, a court-martial is a decidedly legal proceeding. Congress 
already has substantial law on the books authorizing and governing 
them. The Supreme Court has on countless occasions recognized and 
affirmed such proceedings--most recently in the Hamdan opinion. They 
satisfy all the conditions the Hamdan majority found the president's 
commissions failed to meet. They would eliminate the problems of 
uniformity that the Supreme Court found so damning to the military 
commissions.\24\ They would provide assurances of independent 
proceedings and review that the commissions sorely lack.\25\ They would 
satisfy Common Article 3's requirement of a ``regularly constituted 
court''--a requirement that may be difficult, if impossible, to achieve 
by patchwork legislation.
---------------------------------------------------------------------------
    \24\ See id. (slip op. at 56-62).
    \25\ See id. (slip op. at 14) (Kennedy, J., concurring) (``This is 
another means in which, by structure and tradition, the court-martial 
process is insulated from those who have an interest in the outcome of 
the proceedings.'').
---------------------------------------------------------------------------
    By using an existing system, we would not just be reaffirming our 
core American values, we'd also have smoother prosecutions. Right now, 
the United Kingdom refuses to recognize the commission system, with its 
attorney general calling them completely ``unacceptable'' because they 
fail to offer ``sufficient guarantees of a fair trial in accordance 
with international standards.'' Australia has cut a special side deal 
with the Bush administration so one of its citizens, David Hicks, is 
treated differently from other commission defendants. A United Nations 
(U.N.) Expert Committee says these commissions are fundamentally 
unfair--a report that will prompt other nations to refuse to let their 
citizens be tried in these bodies. Extradition, sharing of prosecution/
intelligence information, and availability of witnesses will all become 
extremely serious problems when other countries refuse to cooperate. 
Without an extensive track record showing that courts-martial are 
failures, it is exceptionally dangerous to gamble our prosecution 
strategy on the administration's diplomatic ability to persuade other 
nations to cooperate with these commissions.
    I am by no means the first person to suggest this course. Just last 
week, Professor Scott Silliman, who served for 25 years in the Air 
Force's Judge Advocate General (JAG) Department, endorsed the same 
approach before the Senate Judiciary Committee: ``[Courtsmartial] is a 
fair and well-proven system of law, created by Congress some 56 years 
ago, that is more than adequate to the task. Article 18 of the Code 
gives general courts-martial jurisdiction to prosecute violations of 
the law of war, and the President need only make the policy decision to 
use them.'' \26\ Bruce Fein, a former high-ranking DOJ official in the 
Reagan administration, also wrote: ``[T]rial by courts-martial under 
the UCMJ would prohibit secret evidence and require sworn testimony. 
The reliability of verdicts compared with military commissions would be 
sharply advanced. The government invariably wins when justice is 
done.'' \27\
---------------------------------------------------------------------------
    \26\ Hamdan v. Rumsfeld: Establishing a Constitutional Process, 
Hearing before the S. Comm. on the Judiciary, 109th Cong. (July 11, 
2005) (statement of Scott L. Silliman), available at http://
judiciary.senate.gov/testimony.cfm?id=1986&wit--id=5511.
    \27\ Bruce Fein, Are the Military Panels Needed?, Washington Times, 
July 11, 2006, available at http://www.washingtontimes.com/commentary/
bfein.htm.
---------------------------------------------------------------------------
c. Legislation for this Handful of Defendants Will Get Bogged Down in 
        the Courts and Delay the Crucial Goal of Bringing Terrorists to 
        Justice.
    Whatever purported benefits might be gained by some new system have 
to be weighed against the inevitable litigation risk. The Hamdan 
decision makes clear that any changes that depart from our Nation's 
military tradition and international law are going to be closely 
scrutinized by the courts. The result of changing the rules again now 
could be another 4 years with no prosecutions and perhaps yet another 
reversal by the Supreme Court. ``Four more years'' is not a convincing 
slogan, especially when not a single terrorist has been brought to 
justice in these military commissions.
    This body should do what the President did not over 4\1/2\ years 
ago, consider whether its decision to create a new trial system will 
set back the war on terror by inviting litigation, and the overturning 
of criminal convictions in terrorism cases. The Hamdan decision is 
important here because of its implications for the Detainee Treatment 
Act (DTA). Some individuals, including Justice Scalia, read the DTA to 
strip the Supreme Court of jurisdiction over Guantanamo cases. Under 
their reasoning, the DTA meant that Hamdan could only come into Federal 
court to challenge the military commission after he was convicted, not 
beforehand.
    But that reading did not prevail--and with good reason. Senator 
Levin of this committee worked with Senator Graham and others to modify 
the initial version of the DTA, which would have created that outright 
jurisdiction stripping. Instead, the modifications of Senators Levin 
and Graham grandfathered the Hamdan case--and in a way that is good for 
the fight against terrorism. Could you imagine if the contrary reading 
would have prevailed? We would have put the country through the 10 
commission trials, at huge taxpayer expense, and then they would have 
come to the Supreme Court 4 or 5 years from now at the earliest. They 
then would have been thrown out as illegal for the reasons the Supreme 
Court gave us on June 29. We would have then possibly faced the 
terrible prospect of these individuals going free.
    The Nation owes a debt of gratitude to Senator Levin for ensuring 
that careful thought and attention was devoted to this point in the 
last-minute appropriations process, and to Senator Graham and the 
others who worked with him. Otherwise, we would be having these debates 
in Congress about how to try suspected terrorists 4 or 5 years from 
now--and in a much worse factual environment--where criminal 
convictions have been thrown out as illegal and where terrorists might 
even have been released. By trying them according to court-martial 
procedures, we still have the opportunity to do it right the first 
time.
    For that reason, if this body adopts any legislation today, it 
should mandate an anti-abstention principle, and provide for expedited 
review of any military commission challenge to the Supreme Court of the 
United States. If you do not, we will face the same prospect of 
criminal convictions being overturned in several years. The Hamdan 
decision makes clear that the Federal courts have a vital role to play 
in ensuring the fairness and legality of any system of criminal 
justice. That role should be played at the outset, to avoid the trauma 
to the Nation that would result from a decision setting the convicted 
terrorists free, or, possibly forcing an individual to be retried after 
they have already previewed their defense for the prosecution. In these 
circumstances, a retrial would not be considered just in the eyes of 
the world.
    An expedited review provision has been used many times in recent 
years, including, for example, the Bipartisan Campaign Finance Reform 
Act. A three judge district court would hear the challenge, and then it 
would go to the Supreme Court on a fast-track basis. That path would 
provide a sure footing and stability beforehand.
    Again, my strong view is that it is better to get the show on the 
road and use the existing system, instead of having to wait for a risky 
new scheme to be tested in the courts. But the worst of all worlds 
would be legislation that adopts a risky system and tries to defer 
Federal court challenges until after convictions happen. Such a system 
will put courts in an impossible position. This country, the families 
and survivors of the September 11 attacks, and the rest of the world, 
deserve to see a fair trial of the suspected al Qaeda terrorists that 
the administration has been holding onto for more than 4 years now. A 
``wait and see'' attitude toward criminal convictions of suspected 
terrorists is not something that can wait any longer.
    Finally, judicial abstention provides yet another powerful and 
compelling reason for the use of courts martial instead of commissions. 
The Supreme Court in 1975 in Schlesinger v. Councilman stated that 
challenges to a court-martial generally must take place after, not 
before, someone is convicted in them. The government tried to advance a 
similar principle in Hamdan, but not one of the three courts to hear 
the case--at the trial, appellate, or Supreme Court level--accepted 
this notion. Instead, all three courts made clear that they would hear 
legal challenges, pre-trial, to military commissions. Courts-martial 
have developed a body of caselaw and tradition that Federal courts feel 
comfortable deferring to; but a newfangled institution will command no 
such deference. Because we are talking about the most awesome powers of 
government--dispensing the death penalty and life imprisonment--courts 
will carefully scrutinize the procedures and rules for trial. The only 
way to ensure that scrutiny yields a decision in which the system is 
not tossed out is to use a system that is battle-tested and approved 
already by the Supreme Court of the United States. Courts-martial and 
Federal civilian trials meet these tests; military commissions do not.
d. Creating a Separate Trial System Will Undermine American Credibility 
        and Threaten Compliance with the Geneva Conventions.
    Senator McCain last week stated it perfectly:

        [W]e will have more wars, and there will be Americans who will 
        be taken captive. If we somehow carve out exceptions to 
        treaties to which we are signatories, then it will make it very 
        easy for our enemies to do the same in the case of American 
        prisoners.

    Remarks of Senator John McCain, Hearing on the Future of Military 
Commissions to Try Enemy Combatants, July 13, 2006.
    Let's be clear about what the Hamdan decision did and did not do. 
It did not, by its terms, guarantee prisoner of war privileges to al 
Qaeda or individuals who do not wear a uniform and comply with the laws 
of war. Nor did it, by its terms, extend the full protections of the 
Geneva Convention to Hamdan or any other detainee. Instead, it simply 
reaffirmed that the minimal, rudimentary requirements of Common Article 
3 apply to all conflicts.
    We must be careful not to further the perception that, in matters 
of justice, particularly when the death penalty is at stake, the 
American government adopts special rules that single out foreigners for 
disfavor. If Americans get a ``Cadillac'' version of justice, and 
everyone else gets a ``beat-up Chevy,'' the result will be fewer 
extraditions, more international condemnation, and increased enmity 
toward Americans worldwide.
    An extensive amount of material has already been generated on this 
point. Secretary of State Madeline Albright and 21 other senior 
diplomats filed a brief in Hamdan v. Rumsfeld explaining that the 
military commissions lacked credibility internationally and were 
interfering with our ability to project our Nation as one of fairness 
and justice.\28\ 422 Members of the European and United Kingdom 
parliaments filed a brief condemning military commissions as 
fundamentally unfair and a violation of international law.\29\ That 
brief, notably, was signed by leaders of all of the major political 
parties in Britain, including the conservative Tories. Retired generals 
and admirals filed a brief containing similar views--building on Colin 
Powell's stated beliefs while serving as Secretary of State.\30\ All of 
these warnings square with what the Senate has itself said about the 
Geneva Conventions--that they represent minimal standards for all 
conflicts. In recommending ratification of the Geneva Conventions in 
1955, the Senate Committee on Foreign Relations stated:
---------------------------------------------------------------------------
    \28\ See http://www.hamdanvrumsfeld.com/Hamdan--AlbrightDiplomats--
brief.PDF.
    \29\ See http://www.hamdanvrumsfeld.com/
HamdanParliamentariansFreshfields.pdf
    \30\ See http://www.hamdanvrumsfeld.com/GeneralsandAdmirals.pdf

          Our Nation has everything to gain and nothing to lose by 
        being a party to the conventions now before the Senate, and by 
        encouraging their most widespread adoption. . . . The practices 
        which they bind nations to follow impose no burden upon us that 
        we would not voluntarily assume in a future conflict without 
        the injunctions of formal treaty obligations.
          We should not be dissuaded by the possibility that at some 
        later date a contracting party may invoke specious reasons to 
        evade compliance with the obligations of decent treatment which 
        it has freely assumed in these instruments. Its conduct can now 
        be measured against their approved standards, and the weight of 
        world opinion cannot but exercise a salutary restraint on 
        otherwise unbridled actions. . . .
          The committee is of the opinion that these four conventions 
        may rightly be regarded as a landmark in the struggle to obtain 
        for military and civilian victims of war, a humane treatment in 
        accordance with the most approved international usage. The 
        United States has a proud tradition of support for individual 
        rights, human freedom, and the welfare and dignity of man. 
        Approval of these conventions by the Senate would be fully in 
        conformity with this great tradition.

    The Army Field Manual itself has recognized in the past that 
compliance with Common Article 3 is necessary in order to promote 
interrogations, and to win the hearts and minds of the enemy and 
potential sympathizers.

          Humane treatment of insurgent captives should extend far 
        beyond compliance with Article 3, if for no other reason than 
        to render them more susceptible to interrogation. The insurgent 
        is trained to expect brutal treatment upon capture. If, 
        contrary to what he has been led to believe, this mistreatment 
        is not forthcoming, he is apt to become psychologically 
        softened for interrogation. Furthermore, brutality by either 
        capturing troops or friendly interrogators will reduce 
        defections and serve as grist for the insurgent's propaganda 
        mill.\31\
---------------------------------------------------------------------------
    \31\ Army Field Manual 34-52.

    Some have suggested, in response to the Supreme Court's decision, 
that while Congress must respect the Supreme Court's interpretation of 
the Geneva Conventions,\32\ Congress does not need to respect the 
Conventions themselves. It can pass a new law--such as one authorizing 
the current military commissions or a substantially similar 
alternative--that overrides the Conventions and denies the protections 
of Common Article 3 in full or in part to suspected members of groups 
like al Qaeda. As a matter of domestic law, Congress currently has the 
power to do this. But the political costs would be enormous and the 
legal consequences severe.
---------------------------------------------------------------------------
    \32\ See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2684 (2006) 
(explaining the Supreme Court's interpretive supremacy over treaties).
---------------------------------------------------------------------------
    For starters, even if accompanied by a ``jurisdiction-stripping'' 
measure, any such statute would invite a litany of legal challenges. 
Hamdan did not reach constitutional questions. If Congress now 
authorizes commissions that fail to meet recognized international 
standards, it runs the risk of violating constitutional due process and 
tying up the courts for years in new rounds of detainee-rights 
litigation.
    A statute that works to limit Common Article 3 would also be in 
serious violation of international law, on at least two levels. First, 
any statute that does not comply in full with Common Article 3 would 
amount to a breach--and likely a material breach--of one of the United 
States' most fundamental treaty obligations. Common Article 3 is no 
ordinary provision. It is often referred to as a ``Convention in 
miniature'' \33\ for the way it distills the hundreds of articles 
contained in the four Geneva Conventions into ``the common principle 
which governs them,'' \34\ a principle of ``indivisible nature.'' \35\ 
A statute that conflicts with Common Article 3 would violate ``a 
provision essential to the accomplishment of the object or purpose of 
the treaty'' and therefore constitute a material breach of the entire 
Geneva Conventions.\36\ Because Common Article 3 is non-derogable, 
claims of military or security necessity are no justification for 
violating it.\37\ Because the provisions of Common Article 3 are not 
severable from one another, Congress must apply the article in its 
entirety.\38\ Accordingly, a statute that serves to ``rein in'' \39\ 
any provision of Common Article 3, for any reason, would leave the 
United States in material breach of all four Geneva Conventions. Treaty 
obligations are ``too fundamental to be easily cast aside,'' \40\ and 
that maxim holds especially true here, where the treaty at issue is one 
of the United States' most powerful tools for upholding the law of war 
and ensuring humane treatment for our soldiers.\41\
---------------------------------------------------------------------------
    \33\ E.g., 3 INT'L COMM. OF RED CROSS, COMMENTARY: GENEVA 
CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR
    \34\ (1960). 34 Id. at 35.
    \35\ Id. at 38. These quotations come from the official ICRC 
commentary to the Geneva Conventions, which the Supreme Court 
recognized in Hamdan as ``relevant in interpreting the Conventions' 
provisions.'' Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2789 n.48 (2006).
    \36\ See Vienna Convention on the Law of Treaties, opened for 
signature May 23, 1969, art. 60(3)(b), 1155 U.N.T.S. 331, 346 (defining 
``material breach''); see also Anthony Aust, Modern Treaty Law and 
Practice 238 (2000) (noting that the breach of even ``an important 
ancillary provision'' of a treaty will constitute a material breach); 
Mohammed M. Gomaa, Suspension or Termination of Treaties on Grounds of 
Breach 39 (1996) (The [materially] breaching act may be based on 
grounds of municipal law such as the enactment of legislation or 
execution of rules of municipal law which are contrary to the State's 
contractual obligations.''). While the Vienna Convention on the Law of 
Treaties is not binding on the United States, it is widely agreed, and 
executive-branch officials have assumed, ``that the Convention 
generally reflects customary international law.'' Curtis A. Bradley & 
Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 
U. PA. L. REV. 399, 424 (2000).
      Some commentators have argued that violations of Common Article 3 
constitute not only material breaches, but also ``grave breaches'' 
expressly criminalized under the Geneva Conventions. See, e.g., Ruth 
Wedgwood, War Crimes in the Former Yugoslavia: Comments on the 
International War Crimes Tribunal, 34 VA. J. INT'L L. 267, 272-73 
(1994). The U.S. Government has taken this position at least once. See 
Amicus Curiae Brief Presented by the Government of the United States of 
America, at 35-36, Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and 
Judgment (May 7, 1997).
    \37\ See Theodor Meron, Internal Strife: Applicable Norms and a 
Proposed Instrument, in Humanitarian Law of Armed Conflict: Challenges 
Ahead 249, 255-57 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991) 
(explaining why ``[i]t is now generally accepted that humanitarian 
instruments, having been adopted to govern situations of armed 
conflict, are not subject to derogations'' on any grounds). A few 
particular articles of the Geneva Conventions (such as Articles 5 and 
27 of the Fourth Convention) do allow limited derogations, but Common 
Article 3 is emphatically not one of them.
    \38\ Cf. Hamdan v. Rumsfeld: Establishing a Constitutional Process: 
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 10 & n.58 
(2006) (statement of Harold Hongju Koh, Dean, Yale Law School), 
available at http://www.law.yale.edu/documents/pdf/Deans--Office/KOH--
Hamdan--TESTIMONY.pdf (observing that the Supreme Court gave no 
indication in Hamdan that Common Article 3 may ever be applied 
piecemeal).
    \39\ See Kate Zernike, Administration Prods Congress To Curb the 
Rights of Detainees, N.Y. Times, July 13, 2006, at A1 (quoting one 
Senator as saying that Common Article 3 must be ``reined in'' by 
Congress).
    \40\ United States v. Dion, 476 U.S. 734, 739 (1986).
    \41\ It is important to note that, contrary to what Daniel Collins 
asserted last week, see Hamdan v. Rumsfeld: Establishing a 
Constitutional Process: Hearing Before the S. Comm. on the Judiciary, 
109th Cong. (2006) (statement of Daniel Collins, Partner, Munger, 
Tolles & Olson), available at http://judiciary.senate.gov/
testimony.cfm?id=1986&wit--id=5512, if Congress simply asserts that the 
existing commissions are ``regularly constituted,'' this would not be 
sufficient to save compliance with Common Article 3. First, it takes a 
highly formalistic interpretation of ``regularly constituted'' to mean 
merely ``sanctioned by congressional declaration.'' Second and more 
basic, this argument ignores section 1(d) of Common Article 3, which 
states that protected persons must be tried by a ``regularly 
constituted court affording all the judicial guarantees which are 
recognized as indispensable by civilized peoples'' (emphasis added). 
The Supreme Court has already indicated in Hamdan that the existing 
commissions fall far short of these guarantees.
---------------------------------------------------------------------------
    In addition to violating treaty law, any statute that conflicts 
with Common Article 3 would be argued to be illegal on a second level 
of customary international law. Common Article 3 sets forth ``the most 
fundamental norms of the law of war'' \42\ and thereby reflects 
``elementary considerations of humanity.'' \43\ As a result, it is now 
widely regarded to be a signal example of customary international 
law.\44\ (Some even believe Common Article 3, and the Geneva 
Conventions more generally, to be jus cogens, a peremptory norm of 
general international law that may never be set aside unless a 
subsequent contrary norm develops.\45\) Any statute that tries to avoid 
or narrow Common Article 3 would thus be not only a profound affront to 
the norms and morals of the global community, but also claimed to be an 
illegal affront to them.
---------------------------------------------------------------------------
    \42\ Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995).
    \43\ Case Concerning Military and Paramilitary Activities in and 
Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 114, para. 218 
(June 27).
    \44\ See, e.g., id.; Kadic, 70 F.3d at 243; Mehinovic v. Vuckovic, 
198 F. Supp. 2d 1322, 1351 (N.D. Ga. 2002); The 9/11 Commission Report: 
Final Report of the National Commission on Terrorist Attacks upon the 
United States 380 (2004) (``[Common Article 3's] minimum standards are 
generally accepted throughout the world as customary international 
law.'').
    \45\ See Ingrid Detter, The Law of War 410 (2d ed. 2000); Theodor 
Meron, The Geneva Conventions as Customary Law, 81 Am. J. Int'l L. 348, 
350 (1987). The official commentary to the Geneva Conventions notes 
that its principles ``are today the essential expression of valid 
international law in this sphere'' and therefore ``exist independently 
of the Convention and are not limited to the field covered by it.'' 1 
Int'l Comm. of Red Cross, supra, at 412-13. Even formal denunciation of 
the Conventions does not ``impair the obligations which the Parties to 
the conflict remain bound to fulfill by virtue of the principles of the 
law of nations, as they result from the usages established among 
civilized peoples, from the laws of humanity and the dictates of the 
public conscience.'' Id. at 413.
---------------------------------------------------------------------------
    Make no mistake: If Congress wants to avoid applying any provision 
of Common Article 3 to ``enemy combatants'' or other groups, it must be 
crystal clear that it so intends, because under the Charming Betsy 
doctrine courts will construe statutes so as to harmonize with 
international agreements whenever fairly possible.\46\ Congress's 
abrogation of Common Article 3 would need to be very explicit, and very 
public, or else courts will not recognize it. The boldness required to 
specifically override the guarantees of Common Article 3 with new 
legislation would be exceptional. Indeed, it would be unprecedented; 
apparently no legislature has ever passed such a measure.\47\
---------------------------------------------------------------------------
    \46\ See Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 307 
(1829); Restatement (Third) of Foreign Relations Law of the United 
States Sec. 114 (1987).
    \47\ See Adam Liptak, Scholars Agree That Congress Could Reject 
Conventions, but Not That It Should, N.Y. Times, July 15, 2006, at A10; 
cf. Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, \ 138 
(Dec. 10, 1998) (observing that no State has ever ``shown or manifested 
opposition to the implementation of treaty provisions against 
torture,'' including those contained in Common Article 3), available at 
http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.pdf.
---------------------------------------------------------------------------
    If Congress were to assume this ignoble mantle, the legal troubles 
wouldn't end with constitutional challenges and our breaches of treaty 
law, customary law, and, arguably, jus cogens. To effectuate its new 
statute, Congress would need to amend or repeal at least three other 
controlling statutes: the UCMJ, the McCain Amendment, and the War 
Crimes Act. The latter statute imposes Federal criminal sanctions on 
``conduct . . . which constitutes a violation of Common Article 3.'' 
\48\ Congress would need to take the remarkable step of striking that 
language from the War Crimes Act unless it wants U.S. military 
personnel--including those who administer deficient trial proceedings--
to be prosecuted for war crimes in U.S. courts. But even that would not 
protect these military personnel from prosecution abroad. Under the 
principle of ``universality,'' ``[m]ost authorities have accepted that 
breaches of the laws and customs of war, especially of the 1907 Hague 
Conventions and the 1949 Geneva Conventions, may be punished by any 
state that obtains custody of persons suspected of responsibility.'' 
\49\ Not only other countries' courts, but also the founding charters 
of numerous international tribunals expressly recognize violations of 
Common Article 3 as war crimes.\50\
---------------------------------------------------------------------------
    \48\ 18 U.S.C. Sec. 2441(c)(3).
    \49\ John Norton Moore Et Al., National Security Law 379 (1990); 
accord Ian Brownlie, Principles of Public International Law 303 (6th 
ed. 2003).
    \50\ See, e.g., Rome Statute of the International Criminal Court, 
July 17, 1998, art. 8, Sec. 2(c), (e)(vi), U.N. Doc. A/Conf.183/9 
(2002); Statute of the International Criminal Tribunal for Rwanda, Nov. 
8, 1994, art. 4, U.N. Doc. S/Res/955 (1994); Statute of the Special 
Court for Sierra Leone, Jan. 16, 2002, art. 3, available at http://
www.scsl.org/scsl-statute.html; see also Moirah Sanchez et al., Case 
Concerning the Women and Children of the Civil War, 10 ILSA J. INT'L & 
COMP. L. 215, 223-24 & nn.20-21 (explaining international courts' 
prosecution of Common Article 3 violations and state approval thereof).
---------------------------------------------------------------------------
    In the legal fallout that would ensue from any congressional effort 
to ``rein in'' Common Article 3, the fact that al Qaeda does not abide 
by the article would be of no moment. Were it a party to the Geneva 
Conventions, al Qaeda would be in material breach. No one doubts this. 
But the Geneva Conventions, as well as background principles of 
international law, do not permit other countries to breach, suspend, or 
terminate the Conventions or any part thereof in response to another 
party's material breach.\51\ If the United States does not think Common 
Article 3 should apply in full in a particular armed conflict, it 
must--as a matter of Geneva law and international law--formally 
denounce the entire treaty, an act that no state has ever before taken.
---------------------------------------------------------------------------
    \51\ Common Article 1 of the Conventions stipulates that the 
Contracting Parties ``undertake to respect and to ensure respect for 
the present Convention in all circumstances'' (emphasis added). This 
language reflects the customary rule that humanitarian treaties may not 
be suspended or derogated from in response to another party's material 
breach. See Vienna Convention on the Law of Treaties, supra, at art. 
60(5); see also AUST, supra, at 238 (indicating that the drafters of 
the Vienna Convention had the Geneva Conventions specifically in mind 
when they included this provision).
---------------------------------------------------------------------------
    Against this mainstream interpretation of the Geneva 
Conventions,\52\ and to widespread public criticism, some 
administration officials have argued that the United States may 
retaliate against al Qaeda and the Taliban by temporarily suspending 
the Conventions with respect to those entities.\53\ If one accepts this 
logic of negative reciprocity--and there is no guarantee that creative 
lawyers in other governments wouldn't--then a congressional act that 
breaches the Conventions might be seen to authorize other countries to 
suspend application of the Conventions with respect to the United 
States. This may be unlikely in the case of our allies, but it is not 
impossible in the case of many key players in the war on terror; the 
administration has, after all, already supplied them with the legal 
arguments.
---------------------------------------------------------------------------
    \52\ Expressions of this position can be found, inter alia, in 
Detter, supra, at 403-04, 410; Fritz Kalshoven & Liesbeth Zegveld, 
Constraints on the Waging of War 75 (2d ed. 2001); David A. Elder, The 
Historical Background of Common Article 3 of the Geneva Conventions of 
1949, 11 Case W. Res. J. Int'l L. 37, 52 (1979).
    \53\ See Memorandum from Jay S. Bybee, Assistant Att'y Gen., to 
Alberto R. Gonzales, Counsel to the President, and William J. Haynes 
II, General Counsel, Dep't of Defense 23-25 (Jan. 22, 2002), available 
at http://www.washingtonpost.com/wp-srv/nation/documents/
012202bybee.pdf (acknowledging legal precedents and norms to the 
contrary, but asserting that the Executive may suspend the Geneva 
Conventions because ``unfairness'' and ``non-compliance'' might result 
if we did not do so).
---------------------------------------------------------------------------
    So a new statute ``reining in'' Common Article 3 would not only 
raise significant constitutional and administrative concerns, leave the 
United States in violation of a major treaty obligation and a major 
tenet of customary international law, fundamentally alter and undermine 
our legal framework for the treatment of captives, and expose U.S. 
officers to possible war crimes liability; it might also set the course 
to the unraveling of the Geneva Conventions themselves.
    I do not need to remind this committee why the Geneva Conventions 
are so vital to our national interest, or explain how defying the 
Conventions would do irreparable, perhaps unprecedented damage to our 
Nation's standing and reputation in the eyes of the world, including 
those whom we are trying to win over to our side. As commentators on 
the law of war have observed, ``the rules contained in Article 3 are 
minimum standards in the most literal sense of the term; standards, in 
other words, no respectable government could disregard for any length 
of time without losing its aura of respectability.'' \54\
---------------------------------------------------------------------------
    \54\ Kalshoven & Zegveld, supra, at 69.
---------------------------------------------------------------------------
    Finally, it is sometimes said Congress must act in the wake of the 
Hamdan decision because otherwise a rogue international prosecutor will 
indict a United States government official while traveling abroad. This 
argument is a canard. Leave aside the fact that the Defense Department 
has publicly stated that it has been in full compliance with Article 3, 
and that our troops are trained to dispense Common Article 3 
protections. The more basic problem is that whatever Congress (or, for 
that matter, the Supreme Court) defines Common Article 3 to mean 
wouldn't matter to this hypothesized rogue prosecutor abroad. If that 
prosecutor wanted to use the customary definition of Common Article 3 
as applying to all conflicts, he would be free to do so--regardless of 
what the Supreme Court or Congress of the United States said. The 
decision of both domestic institutions is utterly irrelevant to what a 
rogue prosecutor in Spain, Belgium, or some other country might decide 
to do.
    I mentioned before that if Congress chooses to pass a law 
overriding any provision of the Geneva Conventions, it would make ours 
the first government ever to do so. It would not, however, make us the 
first country to publicly violate Common Article 3. Other prominent 
examples include the Khmer Rouge in Cambodia, the Revolutionary United 
Front in Sierra Leone, the current Khartoum government in Sudan, and 
Saddam Hussein in Iraq.\55\ These are not the bedfellows the United 
States is accustomed to keeping, nor the precedents the United States 
wants to evoke. Congress should make sure that any ``legislative 
response'' to Hamdan does not tamper with Common Article 3 and put 
America on the wrong side of history.
---------------------------------------------------------------------------
    \55\ See Michael Byers, War Law: Understanding International Law 
and Armed Conflict 36 (2005) (Sudanese government violating Common 
Article 3); Laura Forest, Note, Sierra Leone and Conflict Diamonds: 
Establishing a Legal Diamond Trade and Ending Rebel Control over the 
Country's Diamond Resources, 11 Ind. Int'l & Comp. L. Rev. 633, 659 
n.225 (2001) (RUF violating Common Article 3); Erik Suy, International 
Humanitarian Law and the Security Council Resolutions on the 1990-1991 
Gulf Conflict, in Humanitarian Law of Armed Conflict: Challenges Ahead 
515, 523 (Astrid J.M. Delissen & Gerard J. Tanja eds., 1991) (Saddam 
Hussein violating Common Article 3); Hans-Peter Gasser, Non-
International Armed Conflicts, 31 Am. U.L. Rev. 911, 921 (1982) (Khmer 
Rouge); Report of the Group of Experts for Cambodia Established 
Pursuant to General Assembly Resolution 52/135, U.N. Gaor, 53d Sess., 
Annex, 75 (1999), available at http://www1.umn.edu/humanrts/cambodia-
1999.html.
---------------------------------------------------------------------------
                          iii. moving forward.
    Chairman Warner and members of the committee, the Supreme Court got 
it right. The president's military commissions departed in major ways 
from the most basic tenets of American justice. For the first time, 
defendants were kicked out of their own criminal trials without their 
consent. Even a military commission prosecutor called the system ``a 
half-hearted and disorganized effort by a skeleton group of relatively 
inexperienced attorneys to prosecute fairly low-level accused in a 
process that appears to be rigged.'' \56\ Another prosecutor lamented 
that ``writing a motion saying that the process will be full and fair 
when you don't really believe it is kind of hard--particularly when you 
want to call yourself an officer and a lawyer.'' \57\ This is the 
danger of departing from established and time-tested rules.
---------------------------------------------------------------------------
    \56\ See Swift Testimony, supra, at 1 (quoting Air Force Captain 
John Carr).
    \57\ Id. (quoting Air Force Major Robert Preston).
---------------------------------------------------------------------------
    Indeed, something that has gone without notice thus far is that the 
lengthy judicial opinions that sided with Mr. Hamdan all have been 
penned by jurists who actually served in our military: Justice John 
Paul Stevens, Justice Anthony Kennedy, and lower court Judge James 
Robertson. I believe this is hardly a coincidence. For years, the 
military has stood at the forefront of protecting the rule of law, 
knowing that if our courts give the executive branch the power to break 
from the Geneva Conventions, then executives from other countries will 
do it back to our own troops some day when they are captured. As a 
group of retired admirals and generals pointed out to the Court as 
amici curiae, during Senate considerations of the Conventions, ensuring 
the protection of our troops was an overriding concern.\58\ Perhaps for 
that reason, and despite all the administration's resistance to the 
Court's Geneva Conventions holding, the Pentagon recently issued a memo 
informing all branches of the military of the Supreme Court's 
interpretation of the Conventions and finding that Common Article 3--
the provision at issue in Hamdan--now protects detainees across the 
globe and must be respected.\59\ These are all steps in the right 
direction.
---------------------------------------------------------------------------
    \58\ Amicus Br. of Retired Generals and Admirals, Hamdan v. 
Rumsfeld, No. 05-184, at 3, available at http://
www.hamdanvrumsfeld.com/briefs (``I cannot emphasize too strongly that 
the one nation which stands to benefit the most from these four 
conventions is the United States. . . . To the extent that we can 
obtain a worldwide acceptance of the high standards in the conventions, 
to that extent will we have assured our own people of greater 
protection and more civilized treatment.'') (quoting Senator Alexander 
Smith).
    \59\ Mark Mazzetti and Kate Zernike, White House Says Terror 
Detainees Hold Basic Rights, N.Y. Times, July 12, 2006.
---------------------------------------------------------------------------
    Legislation in response to Hamdan must also consider the open-ended 
nature of this conflict and guard against undue encroachment of 
military jurisdiction in the administration of justice. After all, our 
tradition of civilian justice is one of the defining principles of this 
nation, one that the founders of this republic were prepared to defend 
with (in the words of the Declaration of Independence) their lives, 
their fortunes, and their sacred honor. Unlike past military 
commissions, which were used in combat or occupation zones under 
military control, the use of commissions in the freestanding conflict 
with al Qaeda means that potentially anyone, including an American 
citizen apprehended on American soil, could be tried before such a 
tribunal. As the Supreme Court has repeatedly pointed out in defending 
the jurisdiction of civilian courts, the jurisdiction of past military 
commissions has been strictly confined by time, place, person, and 
charge. All of those constraints appear to be much weaker, if they are 
going to be applied at all, in the proposed military commissions today. 
The result is that new legislation authorizing military commissions in 
an unbounded ``war on terrorism'' almost certainly would depart from 
the longstanding view, enshrined in one of the landmark decisions of 
the Supreme Court, Ex parte Milligan, 71 U.S. 2 (1866), that when the 
civilian courts are open and unobstructed in the exercise of their 
function, they should be used. This Congress should not resort to 
military commissions unless it is convinced that the gravity of the 
threat truly requires such a momentous step. In a very real sense, use 
of military commissions expresses a lack of faith in the institutions 
of civilian rule that have served this country well in times of crisis 
every bit as dangerous as that which we face today.
    What makes America great is not the quality of the soil on which we 
stand, but the principles that define our Nation. My parents came here 
from a distant land, attracted by that promise, of inalienable rights 
for all and equal opportunity. We are a land of justice and fairness, 
and with a system that is strong enough to handle even the most 
extraordinary of challenges. We witnessed an extraordinary event 3 
weeks ago in the Supreme Court, where a man with a fourth-grade Yemeni 
education accused of conspiring with one of the world's most evil men 
sued the President in the Nation's highest court--and won. Only America 
is strong enough to permit such a challenge. Only America is fair 
enough to let that challenge proceed. Only America is wise enough to 
let such a decision stand as the law of the land--and to celebrate it 
as a vindication of the Rule of Law. For on that day, Hamdan won 
something that every American has celebrated from the Declaration of 
Independence on--a fair trial. While the rule of law came out the 
winner in Hamdan, it is not as if national security came out the loser. 
Quite the opposite, in fact. Hamdan, like any suspect, deserves to be 
tried and held accountable for any crimes he committed, but in a way 
that is fair and preserves America's honor and integrity.
    In sum, I ask members of this committee to see an America that is 
fulfilling the promise to protect our troops and values--a promise 
embodied in the words of Justice Rutledge, dissenting in the last great 
military commission case, Yamashita v. Styer (1946):

          More is at stake than General Yamashita's fate. There could 
        be no possible sympathy for him if he is guilty of the 
        atrocities for which his death is sought. But there can be and 
        should be justice administered according to law. In this stage 
        of war's aftermath it is too early for Lincoln's great spirit, 
        best lighted in the second inaugural, to have wide hold for the 
        treatment of foes. It is not too early, it is never too early, 
        for the Nation steadfastly to follow its great constitutional 
        traditions, none older or more universally protective against 
        unbridled power than due process of law in the trial and 
        punishment of men, that is, of all men, whether citizens, 
        aliens, alien enemies or enemy belligerents. It can become too 
        late.
          This long-held attachment marks the great divide between our 
        enemies and ourselves. Theirs was a philosophy of universal 
        force. Ours is one of universal law, albeit imperfectly made 
        flesh of our system and so dwelling among us. Every departure 
        weakens the tradition, whether it touches the high or the low, 
        the powerful or the weak, the triumphant or the conquered.

    In 1956, a young former law clerk to Justice Rutledge quoted these 
words in a book chapter.\60\ His name was John Paul Stevens. Exactly 50 
years later, he made good on Justice Rutledge's promise.
---------------------------------------------------------------------------
    \60\ John Paul Stevens, Mr. Justice Rutledge, in Allison Dunham and 
Philip B. Kurland (eds.), Mr. Justice, The University of Chicago Press 
(Chicago 1956).
---------------------------------------------------------------------------
    Thank you.

    Chairman Warner [presiding]. Very interesting. Very 
interesting testimony. We thank you for participating.
    We'll now have Mr. Schlueter, Hardy Professor of Law and 
Director of Advocacy Programs, St. Mary's University.
    Mr. Schlueter. Yes, sir.
    Chairman Warner. We welcome you.

  STATEMENT OF DAVID A. SCHLUETER, HARDY PROFESSOR OF LAW AND 
      DIRECTOR OF ADVOCACY PROGRAMS, ST. MARY'S UNIVERSITY

    Mr. Schlueter. Mr. Chairman, Senator Levin, members of the 
committee, thank you for the opportunity to address you today 
on the issue of the status of military commissions following 
the Hamdan decision by the Supreme Court.
    As with the others, I have prepared a detailed written 
statement, and I've presented it to your staff.
    Chairman Warner. Yes. All statements, in their total form, 
will be put into the record.
    Mr. Schlueter. Just a brief note, on background. It's a 
personal honor to sit before you today, Senator Warner. We 
shared a common law professor, Professor Kenneth Redden, at the 
University of Virginia.
    Chairman Warner. Yes.
    Mr. Schlueter. I started off as an Active-Duty JAG, and 
taught at the Army JAG School for 4 years, and did my Masters 
of Law work at the University of Virginia, where Professor 
Redden was one of my mentors. When he found out that I was in 
the military system, he encouraged me to write a book on 
military criminal justice. It's now in its sixth edition. I 
know that Professor Redden would be honored, if he were here 
with us today, to know that two of his former students are 
facing each other and talking about a matter of national 
interest. So, it is also a personal honor to finally sit here 
and talk to you.
    Chairman Warner. Thank you. We're not only facing each 
other, we're joining one another in trying to resolve a problem 
that faces our country.
    Mr. Schlueter. Very much so.
    Chairman Warner. I remember him with great affection and 
respect.
    Mr. Schlueter. We miss him dearly.
    Chairman Warner. Thank you.
    Mr. Schlueter. Just a bit about my background. I was an 
Active-Duty JAG for 9 years, stayed in the Reserves for about 
25 years, and, in that time, specialized in military justice 
and did a lot of writing on it.
    I left the JAG Corps to take a position to work at the 
United States Supreme Court as an in-house counsel. I currently 
teach constitutional law, evidence, trial advocacy, and 
sometimes criminal procedure. So, I have a lot of interest in 
this. Frankly, until last Friday, when I got a call from your 
general counsel, I had hoped to stand on the sidelines and 
watch with interest as to what you decided in Washington, and 
then write about it. It is an honor to be here and to have my 
views heard.
    With all due respect, I think we're missing the point in 
all of this. I was asked to respond to the Hamdan decision, and 
have looked it over many times. It strikes me that we're in 
danger of throwing out the baby with the bath water. In short, 
in my view, the baseline should be the existing rules for 
military commissions.
    Mr. Fidell didn't mention it, but a number of years ago the 
NIMJ published a book, ``The Annotated Guide to Procedures for 
Trial by Military Commissions,'' and 10 of us were asked to 
write commentary on each one of the rules, and to critique it, 
and to prepare and contrast it with the UCMJ and the Manual for 
Courts-Martial. I encourage the committee to take a close look 
at this.
    This has been somewhat of a bandwagon, and I think the 
Hamdan decision has provided a number of interest groups with 
the opportunity to criticize not only the President, but also 
the rules, when, in fact, the Court has really only, itself, 
identified several issues that were of most concern to it. The 
presence of counsel, for example, was one of the issues that 
Justice Stevens mentioned in his plurality, but he couldn't 
even get a fifth, a vote on whether or not the rules of 
procedure would require the defendant's absence at all 
proceedings. So, I think it's very important to go back to the 
reason we're doing this, and that is to carefully analyze the 
opinion and just exactly what it said and didn't say.
    On a similar note, what strikes me in what was wrong in 
this case is that the President probably didn't apply as much 
transparency as he should have. If the President and the 
Pentagon had gone, to a greater extent, to go through the rules 
and explain why they weren't practical, I don't know that we 
would be here today. But they didn't do that, and that was the 
peg on which the Court was able to hang its coat and to say 
that there wasn't sufficient justification for deviating from 
the rules.
    That, in turn, led to a question about whether Article 3, 
the Common Article, would apply or not. The Court did not say 
that all of Article 3 would apply. It wasn't before it. 
Anything that the Court said about Article 3, other than the 
requirement that the punishment be imposed by a regularly 
constituted court, is dicta. That was the only thing that the 
Court really focused on, was that one specific provision in 
Article 3, which, again, the Court concluded had been violated.
    Now, in my written statement, I provide two suggested 
amendments to the UCMJ. I only recommend two. I'm concerned 
that what you're potentially thinking of is a complete overhaul 
of the military justice system. Once you start analyzing the 
UCMJ point by point, a variety of interest groups will come 
forward and ask that the entire provision be considered. It's 
not necessary to do that. I recommend that you follow the 
constitutional structure that has worked well for over 50 
years, and that is that you delegate to the President, in the 
first instance, to draft the appropriate rules. If you want to 
put a reporting requirement in, that would be fine. But I do 
not encourage Congress to take on the task of writing yet 
another set of rules that would apply with commissions 
particularly in mind.
    So, I recommend two amendments. The first amendment would 
address an issue that has never been resolved legislatively, 
and that is the President's authority to convene military 
commissions. I recommend an amendment by adding a new Article 
5(a), which would specifically delineate the three types of 
commissions. Our focus today has been on law-of-war 
commissions, but two other commissions have been used in 
history. I recommend that you consider those, as well.
    Finally, I recommend, very importantly, to amend Article 
36(b). Article 36(b) says, we call it the ``uniformity 
requirement,'' and I don't believe it was ever the intent of 
Congress to require that all the rules concerning provost 
courts, which haven't yet been mentioned, but are in that 
provision, military commissions, and courts-martial would all 
be uniform. The uniformity requirement, in my view, was 
designed in 1950 to address the uniformity between the various 
Armed Forces and not between all of the various military 
tribunals, the administrative-type tribunals that might be 
constituted.
    Several witnesses have testified that the Manual for 
Courts-Martial, in the preamble, indicates that the same 
procedures should be used. But that preamble is not official; 
it's only the views of the DOD. It is clear that, in history, 
the parallel between general court-martial rules of procedure 
and military commissions were essentially the same. I 
personally have no trouble with a two-tier system. We have two-
tier systems now within the military justice system, in terms 
of the level of the offense and the types of procedures that 
are applied.
    So, in my written statement, I recommend that we amend 
Article 36(b) to make it clearly what I believe Congress 
originally intended, that the uniformity principle only apply 
as within the Armed Forces.
    I do think that the baseline ought to be the existing 
rules. As I've said earlier, my sense is that there were only 
three or four areas that concerned the Court, and I'm satisfied 
that bright lawyers in the Pentagon, working with public 
interest groups that can respond to those in a transparent 
system, would address those issues.
    As I also pointed to in my statement and I have experience 
with this. I served for 17 years as the reporter for the 
Federal Rules of Criminal Procedure. I am intimately familiar 
with the process for drafting amendments to the Federal Rules 
of Criminal Procedures. Members of the committee, what you have 
today in the military justice system is the equivalent of a 
Federal criminal trial. There are some exceptions, but I don't 
know that you want to get into the process of applying those 
same rights and privileges to individuals who are terrorists 
and are destined or they have the design of destroying our 
country.
    On a final note, I asked my Sunday-school class, on Sunday 
morning, if they had any thoughts that they thought I ought to 
share with you, and their almost unanimous reaction was, ``Why 
do we even need military commissions to try these people? 
They're out to destroy us.''
    I come from San Antonio, Texas. I'm not in the Beltway. We 
used to live here, but I think it is so important that Congress 
listen to the voice of the American people. That doesn't 
necessarily mean that American people are always right, but I 
think, for the most part, the person on the street really 
wonders why it is that people who cut off the heads of the 
people they capture are entitled to the same due-process rights 
that our American servicemembers are entitled to.
    My recommendation is, again, the baseline be the existing 
rules, that they be modified to adjust to the concerns raised 
by the Supreme Court, and that, at the core, it is critical 
that we provide them fundamental due process. There are core 
fundamental due-process principles that ought to be applied, 
and I don't think we need to get about the business of applying 
all of the rules of evidence to trials by military commissions.
    With that, I thank you.
    [The prepared statement of Mr. Schlueter follows:]

                Prepared Statement by David A. Schlueter

                            i. introduction

    Mr. Chairman, Senator Levin, and members of the committee, thank 
you for the opportunity to address the issue of the status of military 
commissions in light of the Supreme Court's recent decision in Hamdan 
v. Rumsfeld. In that case the Supreme Court held that the military 
commission that had been convened to try Salim Ahmed Hamdan, violated 
the Uniformed Code of Military Justice (UCMJ) and Common Article 3 of 
the Geneva Conventions. The question before Congress is to frame an 
appropriate legislative response to that opinion.
    The following discussion addresses the Court's decision and 
possible responses to that decision.
             ii. hamdan v. rumsfeld, 126 s.ct. 2749 (2006)
A. In General
    On November 13, 2001, the President issued a military order 
entitled ``Detention, Treatment, and Trial of Certain Non-Citizens in 
the War Against Terrorism.'' \1\ In that order the President stated, 
inter alia, that persons identified as members of al Qaeda or as 
persons who had engaged in terrorist activities, would be tried by 
military commissions. The order authorized the Secretary of Defense to 
appoint military commissions to try those persons. The Secretary did so 
in Military Commission Order No. 1, dated March 21, 2002. On May 2, 
2003, the Department of Defense (DOD) released eight Military 
Commission Instructions, which provided more specific guidance on 
military commission procedures.
---------------------------------------------------------------------------
    \1\ 66 Fed. Reg. 57833.
---------------------------------------------------------------------------
    Salim Ahmed Hamdan, a citizen of Yemen, was captured, detained, and 
charged with one count of conspiracy, and was set to be tried by a 
military commission, sitting at Guantanamo Bay, Cuba. Hamdan sought 
habeas corpus relief in a Federal district court in the District of 
Columbia, which granted him relief on his arguments that first, the 
President lacked the authority to establish military commissions to try 
him for a conspiracy and second, the procedures to be used by the 
military commission violated the basic tenets of international and 
military law.\2\ The United States Court of Appeals for the District of 
Columbia, reversed.\3\
---------------------------------------------------------------------------
    \2\ 344 F.Supp.2d 152 (D.C. 2004).
    \3\ 415 F.3d 33 (D.C. Cir. 2005).
---------------------------------------------------------------------------
    The Supreme Court reversed the Court of Appeals and concluded that 
first, it had the authority to review the case \4\ and second, that the 
military commission that had been convened to try Hamdan lacked 
jurisdiction because ``its structure and procedures violate both the 
UCMJ and the Geneva Conventions.'' \5\ Four members of the Court agreed 
that the crime of conspiracy was not a crime recognized by the law of 
war and therefore could not be tried by military commission.
---------------------------------------------------------------------------
    \4\ The Court rejected the government's argument that 
Sec. 1005(e)(1) of the Detainee Detention Act of 2005 (DTA) stated that 
no court would have the jurisdiction to hear or consider any writ of 
habeas corpus filed by persons detained at Guantanamo Bay.
    \5\ 126 S.Ct. at 2759.
---------------------------------------------------------------------------
    Regarding the President's authority, the Court concluded that 
because the commission at issue was not expressly authorized by 
Congress, its task, as in Ex parte Quirin,\6\ was to decide whether 
Hamdan's military commission was authorized. The Court reviewed the 
long history of military commissions, and noted that they have 
typically been used in three situations:
---------------------------------------------------------------------------
    \6\ 317 U.S. 1 (1942).

         First, military commissions have been used as 
        substitutes for civilian courts where martial law has been 
        declared;
         Second, military commissions have been used to try 
        civilians where a temporary military government has been 
        established and the local courts are not functioning; and
         Third, military commissions have been convened as 
        incident to war where ``there is a need to seize and subject to 
        disciplinary measures those enemies who in their attempt to 
        thwart or impede our military effort have violated the law of 
        war.'' \7\
---------------------------------------------------------------------------
    \7\ 126 S.Ct. at 2776.

    The third type, the Court said, was last used in World War II and 
was primarily a factfinding body to determine whether the person 
charged had violated the law of war. Its jurisdiction, the Court said, 
was limited to offenses recognized during a time of war.
B. The President's Authority to Authorize Military Commissions
    In Hamdan, the Court did not decide whether the President has the 
independent authority to convene military commissions. It merely held 
that under the facts of the case, the military commission lacked 
jurisdiction to try Hamdan. The Court stated that at most, the UCMJ, 
the Detainee Treatment Act (DTA), and the Authorization of Use of 
Military Force acknowledged the President's authority to convene 
military commissions in those situations where they were justified 
under the Constitution and the laws, including the law of war.
    The Court reviewed prior cases on the subject and concluded that in 
those cases, the Court had concluded that under the facts, the 
commissions in question were legal and consistent with the 
Constitution.
C. Limits on the President's Authority to Authorize Military 
        Commissions
    Absent a more express authorization from Congress, the Court said 
that its task was to decide whether the commission in question was 
justified. In doing so, the Court analyzed three possible limitations 
on the President's authority.
    1. Crimes Charged Must Be Cognizable Under the Law of War
    First, a plurality of the Court concluded that the charge against 
Hamdan--conspiracy--was not recognized under international law. Even if 
it were, the plurality said, the alleged acts did not occur in a 
theatre of war or after September 11, 2001. The Court, however, cited 
its decision in In re Yamashita, 327 U.S. 1, 13 (1946) for the 
proposition in that case that ``neither Congressional action nor the 
military orders constituting the commission authorized it to place 
petitioner on trial unless the charge proffered against him is a 
violation of the law of war.'' An argument could be made that the 
plurality would recognize Congress' authority to permit non-law-of-war 
crimes to be prosecuted by military commission.
    2. The Procedures Must Be Uniform with Rules of Procedure for 
        Courts-Martial
    Second, the Court interpreted Article 36(b) of the UCMJ to require 
that the procedural rules for military commissions must be uniform with 
the rules governing courts-martial, unless it is impractical to do so.
    Article 36 provides:

        ``Sec. 836. Art. 36. President may prescribe rules

          (a) Pretrial, trial, and post-trial procedures, including 
        modes of proof, for cases arising under this chapter triable in 
        courts-martial, military commissions and other military 
        tribunals, and procedures for courts of inquiry, may be 
        prescribed by the President by regulations which shall, so far 
        as he considers practicable, apply the principles of law and 
        the rules of evidence generally recognized in the trial of 
        criminal cases in the United States district courts, but which 
        may not be contrary to or inconsistent with this chapter.
          (b) All rules and regulations made under this article shall 
        be uniform insofar as practicable.''

    The Court stated that Article 36 places two limits on the 
President's authority to establish the rules for military commissions. 
First, Article 36(a) requires the President to promulgate rules of 
procedure that mirror the Federal rules of practice, to the extent 
practical and to the extent that they are not contrary or inconsistent 
with the UCMJ. The Court apparently agreed that the President had made 
that determination in his November 13, 2001 order.
    Second, the Court held that Article 36(b) requires that the rules 
for military commissions be uniform with the rules for courts-martial, 
insofar as such rules are practical. The Court stated that there was 
nothing in the record to show that the President had made such a 
determination in this case.
    The Court detailed several procedural rules for Hamdan's military 
commission and concluded that they were clearly inconsistent with 
established practices for courts-martial. In particular, the Court was 
concerned about the provisions in the commission rules that would 
preclude the accused from hearing the evidence against him.
    3. The Procedures Must Comply with Common Article 3 of the Geneva 
        Conventions
    Finally, the Court held that the commission rules also violated the 
Geneva Conventions.\8\ The Court of Appeals had concluded that the 
Geneva Conventions did not apply because (1) those conventions are not 
judicially enforceable, (2) Hamdan was not entitled to their 
protections, and (3) even if he was entitled to their protections, the 
Schlesinger v. Councilman \9\ abstention doctrine applied. Without 
deciding the merits of the argument that Hamdan was not entitled to the 
full protections of the Conventions because the conflict is not between 
signatory states, the Court concluded that one of the provisions, what 
is referred to as Common Article 3, did apply. That article appears in 
all four Geneva Conventions and requires that if the conflict in 
question is not international in character, a party to the conflict may 
not pass a sentence without a ``previous judgment by a regularly 
constituted court affording all the judicial guarantees . . . 
recognized as indispensable by civilized peoples.'' \10\ The Court 
concluded that at a minimum, a military commission ``can be regularly 
constituted by standards of our military justice system only if some 
practical need explains deviations from court-martial practice.'' That 
need had not been shown, the Court said.
---------------------------------------------------------------------------
    \8\ 126 S.Ct. at 2793.
    \9\ 420 U.S. 738 (1975) (civilian courts should not interfere with 
ongoing court-martial proceedings).
    \10\ 126 at 2795 (citing Common Article 3).
---------------------------------------------------------------------------
D. What the Supreme Court Did Not Hold
    In analyzing a legislative response to the Court's decision in 
Hamdan, it is important to briefly address what the Court did not hold:

         First, the Court did not address the merits of the 
        arguments on whether the full force and effect of the Geneva 
        Conventions apply to the detainees held in Guantanamo Bay, 
        Cuba.
         Second, the Court did not hold that the President 
        lacks authority under the Constitution to convene military 
        commissions.
         Third, the Court did not hold that certain provisions 
        in the UCMJ or the Manual for Courts-Martial must be applied to 
        military commissions.
         Fourth, the Court did not hold that only war crimes 
        could not be tried by a military commission.

           iii. formulating a legislative response to hamdan

A. In General
    In its opinion, the Supreme Court stated that if ``Congress, after 
due consideration deems it appropriate to change the controlling 
statutes, in conformance with the Constitution and other laws, it has 
the power and prerogative to do so.'' \11\
---------------------------------------------------------------------------
    \11\ 126 S.Ct. at 2799.
---------------------------------------------------------------------------
    There are at least two issues that should be legislatively 
addressed in response to the Court's decision in Hamdan:
    First, despite the long historical debate and conversations about 
the President's authority to convene military commissions, the Court in 
Hamdan did not directly address that issue. In my view, Congress should 
address that issue head on and codify the President's authority to do 
so.
    Second, the Court in Hamdan focused a great deal on its perceived 
requirement in Article 36(b), UCMJ, to make the procedural rules of 
military commissions and courts-martial uniform. That is not a 
commonly-held viewpoint, and for reasons discussed below, Article 36 
should be amended to make it clear that uniformity is not required.
    Given the long-standing role of Congress in exercising its 
Constitutional powers under Article 1 Sec. 8 (concerning the rules and 
regulations for the Armed Forces) it is appropriate for Congress to map 
out only broad policy guidelines for implementing military commissions, 
and leave to the President and the DOD the task of more specifically 
setting out the procedures and rules to be used.
B. Addressing the President's Power to Create Military Commissions.
    One of the first issues deserving Congressional attention is the 
longstanding question about the President's authority to convene 
military commissions. In the past, when it reviewed the 
constitutionality of military commissions, it either assumed that the 
President had the inherent authority, as Commander in Chief, to convene 
such tribunals, or that Congress in some way had authorized such 
tribunals. In Hamdan, the Court noted that because Congress had not 
specifically authorized a military commission to try the accused, the 
Court's duty was to determine whether the commission, assuming the 
President had the authority to convene commissions generally, had 
properly done so in Hamdan.
    An appropriate first step would be to amend the UCMJ to address 
explicitly the President's authority to convene military commissions. 
That amendment could take the form of a new article that would provide 
the authority, with or without any other limitations concerning when 
such commissions might be authorized. That new provision could also 
address the President's authority to promulgate rules of procedure for 
conducting such commissions, a subject addressed below.
    That amendment could also include a reference to the three types of 
military commission recognized by the common law and addressed in the 
Court's opinion in Hamdan.
    A proposed amendment to the UCMJ, in form of adding a new Article 
5a is at the end of this statement.
C. Addressing the Uniformity-of-Rules Requirement in Article 36(b)
    1. In General
    One of the key, and more difficult, points made by the Supreme 
Court in Hamdan was the fact that the proposed commission rules of 
procedure were inconsistent with the UCMJ. The Court relied heavily 
upon language in Article 36(b), which the Court said, required the 
President to apply the rules used in courts-martial to the military 
commission. As pointed out by Justice Thomas in his dissent, it is not 
clear where the majority got that particular reading from the 
statute.\12\
---------------------------------------------------------------------------
    \12\ 126 S.Ct. at 2842 (Thomas, J., dissenting). Paragraph 2(b)(2) 
to the Preamble to the Manual for Courts-Martial states, however, that:
      Military commissions and provost courts for the trial of cases 
within their respective jurisdictions. Subject to any applicable rule 
of international law or to any regulations prescribed by the President 
or by other competent authority, military commissions and provost 
courts shall be guided by the appropriate principles of law and rules 
of evidence prescribed for courts-martial.
    The Preamble is part of the ``supplementary materials'' published 
by the DOD and Department of Transportation. They do not constitute the 
official views of the DOD or any other agency and ``do not constitute 
rules.'' Discussion, Preamble to the Manual for Courts-Martial (2005). 
Rules for Courts-Martial (RCM) 101, Scope, states only that the RCMs 
apply to procedures for courts-martial. No mention is made of other 
military tribunals.
---------------------------------------------------------------------------
    The most common reading given to Article 36(b) is that the 
uniformity requirement was designed to make the practices in the 
various armed forces uniform, in response to the sometimes disparate 
practices that existed before the UCMJ was enacted in 1950.
    Notwithstanding its reading of Article 36(b), the Court recognized 
the ability of Congress to amend the UCMJ.\13\
---------------------------------------------------------------------------
    \13\ 126 S.Ct. at 2799.
---------------------------------------------------------------------------
    At first blush it would seem an easy task to simply merge the 
existing UCMJ provisions and the Rules for Courts-Martial (RCMs) found 
in the Manual for Courts-Martial into any military commission. Doing so 
is not only not feasible--given the complexity of existing statutory 
and Manual provisions--but could actually undermine the very purposes 
and functions of military commissions. That purpose is to 
expeditiously, without the unnecessary sacrifice of due process, 
determine whether a given person has committed an alleged offense, and 
if so, to justly determine a fitting punishment.
    In considering the question of simply adopting existing court-
martial procedures into military commissions, it is important to first 
briefly set out the modern court-martial procedures.
    2. How Courts-Martial Function
    Courts-martial, which are only temporary tribunals, are created to 
determine the guilt or innocence of persons accused of committing 
offenses while subject to the jurisdiction of the Armed Forces. Some 
would argue that they are designed to enforce discipline and others, to 
insure that justice is done.\14\
---------------------------------------------------------------------------
    \14\ See Schlueter, Military Criminal Justice: Practice and 
Procedure, Sec. 1-1 (6th Ed. 2004)
---------------------------------------------------------------------------
    The current court-martial is a temporary tribunal, convened by a 
commander to hear a specific case. It is not a part of the Federal 
judiciary and is not subject to direct judicial review in that system. 
In some points, the court-martial provides greater safeguards than its 
civilian counterparts, and a brief survey of the current practice bears 
this out.
    Before swearing and preferring court-martial charges, a company 
commander is responsible for conducting a thorough and impartial 
inquiry into the charged offenses.\15\ This almost always involves 
obtaining legal advice from a judge advocate. During that 
investigation, an accused is entitled to the protections of the Fourth 
Amendment, vis a vis searches and seizures, the privilege against self-
incrimination, and the Sixth Amendment right to counsel, for example, 
at a pretrial lineup. Those protections are provided not only by case 
law, which as concluded that those constitutional protections extend to 
servicemembers, but perhaps more importantly by the Military Rules of 
Evidence.\16\
---------------------------------------------------------------------------
    \15\ Art. 30, UCMJ
    \16\ See Mil. R. Evid. 301 (privilege against self-incrimination); 
Mil. R. Evid. 304 (procedures for determining admissibility of 
accused's statements); Mil. R. Evid. 305 (Article 31(b) warnings and 
right to counsel warnings); Mil. R. Evid. 311-316 (rules addressing 
requirements for searches and seizures); and Mil. R. Evid. 321 
(admissibility of eyewitness identifications).
---------------------------------------------------------------------------
    If charges are preferred they are moved up the chain of command for 
recommendations and actions by higher commanders. If the command 
believes that the charges are serious enough to warrant a general 
court-martial (roughly equivalent to a civilian felony trial) the 
commander orders that an Article 32 investigation to be held.\17\ At 
that investigation the accused is entitled to be present, to have the 
assistance of counsel, to cross-examine witnesses, and to have 
witnesses produced. Although the Article 32 investigation is often 
equated with a civilian grand jury, in many ways it is far more 
protective of an accused's rights than a grand jury.
---------------------------------------------------------------------------
    \17\ Art. 32, UCMJ
---------------------------------------------------------------------------
    If the command decides to refer the charges to a court-martial, the 
convening authority selects the court members, but does not select 
either the counsel or the military judge. Specific provisions in the 
UCMJ prohibit a convening authority from unlawfully influence the 
participants or the outcome of the case.
    The accused is entitled to virtually the same procedural 
protections he would have in a State or Federal criminal court--largely 
as a result of the requirement in Article 36(a) that the rules of 
procedure for military courts are supposed to parallel the procedures 
used in Federal courts. For example, a military accused is granted:

         the right to a speedy trial (under the Sixth Amendment 
        and under a 120-day speedy trial provision in the Manual for 
        Courts-Martial);
         extensive discovery, that is supposed to be co-equal 
        with the right of discovery for the prosecution;
         the right to production of evidence for examination 
        and testing;
         the right to request witnesses, including expert 
        witnesses;
         the right to request the assistance of experts in 
        preparing for trial;
         the right to confront witnesses;
         the right to select either a trial with members or a 
        trial by the judge alone (bench trials);
         the right to request inclusion of enlisted members, if 
        the accused selects trial by members (effectively a jury 
        trial);
         the right to full voir dire of the court members and 
        the right to exercise both challenges for cause and peremptory 
        challenges;
         the ability to challenge the military judge for cause;
         the right to file motions in limine, motions to 
        suppress, and motions to dismiss the charges on a wide range of 
        grounds (for example invoking constitutional privacy rights to 
        dismiss rules or regulations governing personal conduct).

    In many cases the accused and the convening authority engage in 
plea bargaining and execute a pretrial agreement. Typically, those 
agreements require the accused to plead guilty in return for a 
guaranteed maximum sentence. Before accepting a guilty plea, the 
military judge is required to conduct a detailed ``providency'' inquiry 
to insure that the accused is pleading guilty voluntarily and 
knowingly, and that a sufficient factual basis supports the accused's 
plea.
    If the accused pleads not guilty, during the trial the Military 
Rules of Evidence apply.\18\ Those rules, which mirror the Federal 
Rules of Evidence, include a number of rules not found in the latter. 
For example, Section III of the Military Rules includes very specific 
guidance on searches and seizures, confessions, eyewitness 
identification, and interception of oral and wire communications. 
Section V contains thirteen detailed rules governing privileges. In 
particular, Military Rule of Evidence 505 provides very detailed 
guidance on disclosure of classified information and Rule 506 provides 
equally specific guidance of disclosure of government information that 
would be detrimental to the public interest.
---------------------------------------------------------------------------
    \18\ See generally Saltzburg, Schinasi & Schlueter, Military Rules 
of Evidence Manual (5th Ed. 2003).
---------------------------------------------------------------------------
    Sentencing is usually a separate proceeding. The rules of evidence 
(unlike in the Federal system) apply at the sentencing phase. During 
sentencing, the accused is entitled to present witnesses and other 
evidence for the court's consideration, and to challenge the 
prosecution's evidence.
    The post-trial procedures are extremely detailed. A copy of the 
record of trial is given to the accused, at no cost. Depending on the 
level of punishment imposed, a formal legal review of the proceedings 
is prepared. The post-trial review and recommendations are presented to 
the convening authority for consideration. During that process the 
accused has the right to present clemency matters to the convening 
authority.
    For certain courts-martial, appellate review is automatic in the 
one of the service Courts of Criminal Appeals. Appellate counsel is 
provided free of charge. Review in the military appellate courts may 
take upwards of 1-year. The members of those courts are high-ranking 
military officers. Those courts are given factfinding powers and have 
the authority to reassess a court-martial sentence.
    An accused may petition for further review by the United States 
Court of Appeals for the Armed Forces, which sits in Washington, DC. 
That court is composed of five civilian judges, who are appointed for 
15-year terms. The time from the initial trial to completion of review 
by the Court of Appeals can typically take several years. During 
appellate review, it is not unusual to find a court-martial being 
reversed for violation of one of the many procedural rules, summarized 
above.
    An accused may then seek certiorari review at the Supreme Court of 
the United States.
    3. Why Attempting to Make the Rules for Courts-Martial and Rules 
        for Military Commissions Uniform Raises Additional Problems
    There are several reasons why attempting to simply use either the 
UCMJ or the Manual for Courts-Martial as a default system for military 
commissions potentially causes additional problems.
    First, it is essential that military commissions be able to operate 
quickly and efficiently to determine guilt or innocence and if a person 
is found guilty, an appropriate sentence. Applying the RCMs and the 
Military Rules of Evidence provide valuable due process rights for 
servicemembers--that may rival the protections provided in the civilian 
system. Applying them in a military commission setting could virtually 
bog down the system in delays experience in everyday courtrooms.
    Second, it seems clear that using the UCMJ or the Manual for 
Courts-Martial as a presumed template for military commissions could 
require a drastic overhaul of those provisions. For example, Military 
Rules of Evidence contain a number of privileges. Given the nature of 
the controversy regarding privileges, Congress in enacting the Federal 
Rules of Evidence in 1975 could not agree on a set of privilege rules 
and instead left it to the Federal courts to determine which privileges 
to adopt and which to reject. The Military Rules of Evidence, on the 
other hand specifically cover communications such as the clergy member 
privilege.\19\ Deciding which privileges to apply, and when, would be a 
very difficult task.
---------------------------------------------------------------------------
    \19\ Mil. R. Evid. 503. If the Military Rules of Evidence were to 
apply to military commissions, unaltered, an unlawful combatant being 
tried by military commission could exclude any statements he or she 
made to a spiritual advisor, notwithstanding the fact that the 
statement was completely voluntary and overhead by a guard. One option 
would be to state that none of the privileges in the Rules of Evidence 
apply, but that would also preclude invocation of the attorney-client 
privilege. An alternative option would be to go through each privilege 
and determine which provision applied or did not apply to a military 
commission.
---------------------------------------------------------------------------
    Similarly, the UCMJ and the Military Rules of Evidence provide very 
detailed guidance for rights-warnings to suspects and very detailed 
guidance on obtaining evidence by search and seizure. Those rules would 
have to be completely rewritten to address any exceptions for military 
commissions. In the alternative, Congress or the President could draft 
a provision in the UCMJ or the Manual for Courts-Martial that 
explicitly exempted various rules in those sources. Legislatively, that 
would be extremely cumbersome.
    4. Proposal: Amend Article 36(b) to Make it Clear that the 
        Uniformity Requirement Applies Only to Courts-Martial and 
        Create a Separate Provision for Military Commission Procedures
    As a starting point for redrafting any rules governing military 
commissions, it would be important to make clear, what many have 
assumed to be the case, that Article 36(b) was intended to apply to 
uniform rules of practice among the Armed Forces.
    First, and to that end, Article 36(b) should be amended to state 
clearly that the uniformity requirement extends only to courts-martial. 
The text of the proposed amendment is below.
    Second, a new provision should be added to the UCMJ, specifically 
addressing the adoption of procedural rules for military commissions. 
The Hamdan decision is a good starting point for identifying key 
procedural due process protections that civilized nations would expect 
to exist in any tribunal. In addition, common principles of procedural 
due process would inform the drafters of such rules: the right to be 
present during all proceedings; the right to the assistance of counsel; 
the right to cross-examine government witnesses and challenge the 
government evidence; the right to be heard; and the right to an appeal 
by an impartial body.
    In the discussions following Hamdan, much has been made about 
applying the authentication and hearsay rules. Clearly, those rules, 
although basic to the everyday courtroom practice in both civilian and 
military courts would have to be adjusted for practice in the military 
commissions. So too, would the now-accepted discovery rules have to be 
carefully considered.
    The task for drafting these military commission rules should rest 
first in the President and DOD. That is the model that has been used 
for decades and generally works well. Given the delicate, and 
potentially international, nature of military commission proceedings, 
Congress could require that the President report the rules to Congress.
    In any event, it is clear from Hamdan that any rules adopted by the 
President, with or without congressional approval, will be subject to 
review in the Federal courts.

                  iv. conclusions and recommendations

    The Supreme Court's decision in Hamdan v. Rumsfeld provides 
Congress and the President with an opportunity to re-evaluate the 
subject of military commissions, specifically the authority of the 
President to convene such tribunals and consideration of rules of 
procedure that will be consistent with the Constitution and the rule of 
law.
    To those ends, two amendments to the UCMJ seem appropriate. The 
first amendment would be to add a new Article 5a, which would address 
the President's authority to convene military commissions, and second, 
address the promulgation of procedural rules for those commissions.
    The second amendment would address the uniformity requirement in 
Article 36(b) to make it clear that that provision applies only to 
uniformity concerning court-martial practices among the Armed Forces.
    The proposed amendments are as follows. New material is underlined, 
and language to be deleted is struck through:
          Sec. 805a. Article 5a. Authority to Convene Military 
        Commissions; Rules of Procedure

          (a) The President may convene military commissions to----

            (1) Serve as a substitute for civilian courts at times and 
        locations where martial law has been declared;
            (2) Try foreign nationals as part of a temporary government 
        over occupied territories where the civilian government cannot 
        and does not function; and
            (3) Try foreign nationals accused of violating the law of 
        war, during times of war.

          (b) Pretrial, trial, and post-trial procedures, includes 
        modes of proof, for cases tried before military commissions, 
        may be prescribed by the President, which are not inconsistent 
        with fundamental guarantees of due process.
                                 notes
    Proposed Article 5a explicitly codifies the historically recognized 
authority of the President to appoint military commissions. Subdivision 
(a) states the three types and functions of military commissions, 
recognized by the plurality in Hamdan. 126 S.Ct. at 2775-76 (citing 
authorities). Subdivision (b) authorizes the President to promulgate 
rules for military commissions. The baseline for such rules would be 
fundamental concepts of due process.

        ``Sec. 836. Art. 36. President May Prescribe Rules

          (a) Pretrial, trial, and post-trial procedures, including 
        modes of proof, for cases arising under this chapter triable in 
        courts-martial, military commissions and other military 
        tribunals, and procedures for courts of inquiry, may be 
        prescribed by the President by regulations which shall, so far 
        as he considers practicable, apply the principles of law and 
        the rules of evidence generally recognized in the trial of 
        criminal cases in the United States district courts, but which 
        may not be contrary to or inconsistent with this chapter.
          (b) To the extent practicable, the rules governing cases 
        triable in courts-martial shall be uniform for all Armed 
        Forces. All rules and regulations made under this article shall 
        be uniform insofar as practicable.''

                                 notes

    The amendment to Rule 36(b) would make it clear that the uniformity 
requirement extends only to courts-martial procedures. It would thus 
create a clean slate for adopting military commission rules that more 
carefully address the balance between the function and purposes of 
military commissions, the basic due process rights of an accused, and 
preservation of national security.
    Clarifying the uniformity requirement in Article 36(b) does not 
answer the question of what rules should be adopted for military 
commissions. But it does free the drafters of such rules from the 
strictures of the very detailed procedural and evidentiary codes now 
applied to courts-martial and yet still adopt rules that comport with 
basic due process.

    Chairman Warner. I was waiting to hear what you told your 
Sunday school class. I don't mean to be impertinent, but it 
seems to me that it's the adherence to the rule of law that 
sets this Nation apart from those that chop off the heads.
    Mr. Schlueter. Absolutely. Absolutely. I was asking them 
for their input. I didn't tell them exactly what I was going to 
say.
    Chairman Warner. If you're given the opportunity, you can 
say that one of your fellow students suggested that as an 
answer.
    Mr. Schlueter. I will. Thank you very much, Senator.
    Chairman Warner. I found your testimony very enjoyable. I 
do hope I can spend a minute with you before we conclude our 
proceedings.
    Now, we have Mr. Silliman, professor of the practice of law 
and Executive Director, Center on Law, Ethics, and National 
Security, Duke University.
    Thank you for joining us.

 STATEMENT OF SCOTT L. SILLIMAN, PROFESSOR OF THE PRACTICE OF 
LAW AND EXECUTIVE DIRECTOR, CENTER ON LAW, ETHICS, AND NATIONAL 
                   SECURITY, DUKE UNIVERSITY

    Mr. Silliman. Thank you, Mr. Chairman.
    I think we've heard the two extremes expressed already on 
this panel. I think Professor Katyal would have us use courts-
martial, as they are currently existing, which would require 
absolutely no action on the part of Congress. The President 
could start them immediately. Professor Schlueter has suggested 
that the baseline really ought to be the President's military 
order and Military Commission Order Number 1. I'm going to 
provide a path between those two, Mr. Chairman.
    But I think we need to absolutely understand what the Court 
did and what it did not do in Hamdan v. Rumsfeld. It did not 
deal with the constitutional power of the President to create 
military commissions. As a matter of fact, in a very lengthy 
portion of that opinion, Mr. Chairman, it acknowledged, but it 
did not affirm that it exists. What that case is all about is a 
statutory interpretation, much like the Court did in a case 
over 200 years ago called Little v. Barreme and in the Steel 
Seizure case. It said, when the President is acting as 
Commander in Chief under his Article 2, Section 2, powers, then 
he must stay within the constraints that Congress has imposed 
upon him, and, in this instance, those are in the UCMJ.
    I might also say, Mr. Chairman, that I do not agree with 
many on the first panel that Common Article 3, as interpreted 
by the United States Supreme Court, extends, by that ruling, 
outside the context of military commissions. I am well aware of 
what Secretary England did within the DOD; and I would suggest 
that, as a matter of policy, that makes sense. It was not, in 
my opinion, Mr. Chairman, required, as a matter dictated by the 
Supreme Court. The Supreme Court carefully looked at Common 
Article 3, through the lens of Article 21. That's all it did. 
That's why it made no other reference to any other provision, 
but for the regularly constituted court. It didn't deal with 
humiliating treatment or anything of the like. So, we're 
dealing with a question of statutory interpretation, not 
constitutional interpretation.
    I want to limit my comments to commissions.
    There are basically three options, Mr. Chairman. One, as 
suggested, is to take the existing military commission rules 
and procedures, and merely give congressional sanction to them, 
basically putting everything back the way it was. Now, I think 
we should know that the original military order of November 13, 
2001, was basically copied from President Roosevelt's order of 
1942, and it had absolutely no participation from military 
lawyers. It was a matter of convenience to use that as a model, 
even to the extent that if you look at that order, in paragraph 
7(b), it reads in effect ``to suspend the writ of habeas 
corpus,'' which the Supreme Court, in the Quirin case, struck 
down. So, I do not think that the Military Commission Order 
Number 1, which had to be constrained within the President's 
military order, could not change that. It should not be the 
base we ought to use.
    Now, it is clear that if this Congress wanted to limit the 
application of Common Article 3, it could do so domestically. 
You have that right. Because a treaty and a statute, under 
Article 6 of the Constitution, are treated as the same, and the 
last trumps the earlier one. But I would suggest, Mr. Chairman, 
that to do that, to reinstitute a system of procedures that was 
criticized by the United States Supreme Court, and which do not 
meet commonly recognized international law standards, would be 
imprudent. So, I strongly suggest that's not what the Court 
should do.
    Senator Levin. You mean Congress.
    Mr. Silliman. I'm sorry. Congress. Thank you, Senator 
Levin.
    A second option is to craft a completely new system of 
rules and procedures for military commissions using the 
President's military commission order as the base, and building 
up by including those provisions, perhaps from the court-
martial procedures, perhaps from the international tribunals, 
that, in the eyes of Congress, would be appropriate.
    That approach, I'm sure, could cure most, if not all, of 
the defects raised by the Supreme Court in its opinion. It 
could create a more flexible standard for the admissibility of 
evidence, I think, which is a concern for many of the members 
of your committee. I do share the view, though, that however 
you build a standard for the admissibility of evidence, that it 
should not allow, under any circumstances, the introduction of 
evidence that was acquired through torture or coercive 
interrogation techniques that are outside either the DTA or the 
current version of the U.S. Army Interrogation Manual.
    Now, that second option would be a better option, in my 
judgment, than reinstituting the current system, but I think 
there is a third option that is better, that requires no major 
legislation on the part of Congress, and that is to take the 
UCMJ as the baseline, and then to make adjustments from that to 
accommodate the needs of security and the concept that there 
are some provisions of the UCMJ which may not be applicable.
    Now, I would remind you, Mr. Chairman, that there is 
already existing jurisdiction in the UCMJ, under Articles 18 
and 21, for jurisdiction by military commissions. As the 
Supreme Court told us, that in those commissions, underneath 
the UCMJ--not outside of it, the way the President created it 
that the rules and procedures should be uniform with court-
martial rules and procedures insofar as practicable. Yes, you 
could legislate, and legislatively reverse what the Supreme 
Court said. I don't think we need to do that, nor should we do 
that.
    Granted, there are probably two articles, maybe one more, 
that would need to be amended by using military commissions 
under the UCMJ. One that's been mentioned, I think several of 
us agree Article 36 would have to be amended to allow for 
military commissions, rather than courts-martial. I also agree 
that there should be some kind of robust, substantial judicial 
review in the Court of Appeals for the Armed Forces. I agree 
with that. That could be done easily with a change to Article 
66.
    But you remember, sir, that this Congress, in 1951, made 
the decision that, although you have the constitutional 
authority to make rules governing the land and naval forces, 
that, in Article 36 and Article 56, with regard to maximum 
punishments, you did make the conscious decision to delegate to 
the President of the United States the authority to make those 
rules. It has worked well for 56 years.
    So, I disagree with Mr. Dell'Orto that there are going to 
be 140 or 145 articles of the code that need to be changed. I 
totally disagree with that. At most, there would be three or 
four that would require congressional action.
    The other rules of procedure that would be changed, if they 
need to be changed, are in the military rules of evidence and 
the rules for courts-martial, in the Manual for Courts-Martial. 
That's the President's executive order.
    Yes, the NIMJ proposal, I think, generally is a good idea. 
I think there needs to be, Senator Levin, at least a notice 
requirement. I think that's very important so that Congress 
knows what the President determines to be impractical.
    I do suggest one thing, that the invitation to the first 
panel was to solicit and to bring forward to this committee the 
ideas for these changes. I think that's the wrong group, simply 
because I spent 25 years as an Air Force lawyer, a prosecutor 
and defense counsel, but I've been out for 13 years, teaching 
law at Duke. What this committee needs to do is to solicit and 
receive the comments of the Active-Duty lawyers. You had the 
JAGs here last week, but even those two stars, those flag 
officers, are not the ones that are practitioners. I'm talking 
about the young captains and majors who know it far better than 
any of us do, and it is their counsel that I think needs to be 
heard.
    Now, there is, perhaps, a risk that if that group were 
convened and they could do it very quickly, Mr. Chairman, and 
provided to the President, and perhaps provided to this 
committee, their ideas on how to make those minor changes, that 
the President might not agree with that group. That, we know, 
happened 3 years ago, with regard to interrogation techniques.
    I think, with the reporting requirement, or, Senator Levin, 
perhaps something greater than that, that this body of 
individuals who are the practitioners, who know it best, and 
whose guidance I would look to, as far as those fine 
refinements, can do it quickly to meet your timetable, but 
they, far better than any of us, are the ones you should be 
listening to.
    So, Mr. Chairman, I would suggest that what this Congress 
needs to do, as far as legislative change, is limited to a few 
articles of the code. The vast changes to make the military 
commission system, under the code, adaptable, so it provides 
for captures on the battlefield, for evidence and chain of 
custody, those can be done in the Manual for Courts-Martial, 
under, perhaps, Article 18. You need not change the rest of the 
provisions. It can be built into Article 18.
    I do worry, sir, that in the perceived rush for legislative 
action, that we take the risk of erring, because the system 
that we build will not just be for Hamdan and perhaps 20 or 30 
others, it will be a system that must be built for the future, 
for future conflicts. So, let's not let the rush steer us away 
from receiving the advice of those who know it best, and who 
can provide you with that good advice and counsel.
    Thank you, Mr. Chairman. I look forward to your questions.
    [The prepared statement of Mr. Silliman follows:]

                Prepared Statement by Scott L. Silliman

    Mr. Chairman, Senator Levin, and members of the committee. My name 
is Scott L. Silliman and I am a Professor of the Practice of Law at 
Duke Law School and the Executive Director of Duke's Center on Law, 
Ethics, and National Security. I also hold appointments as an adjunct 
Associate Professor of Law at the University of North Carolina, and as 
an Adjunct Professor of Law at North Carolina Central University. My 
research and teaching focus primarily on national security law and 
military justice. Prior to joining the law faculty at Duke University 
in 1993, I spent 25 years as a uniformed attorney in the United States 
Air Force Judge Advocate General's Department.
    I thank you for the invitation to discuss with the committee my 
views on the Supreme Court's opinion in Hamdan v. Rumsfeld \1\ and what 
your legislative response should be to that ruling. As you take 
testimony and deliberate on the type of statutory system which could be 
adopted or crafted for prosecuting terrorists for violations of the law 
of war, I submit that the task before you extends far beyond Hamdan and 
the few others at Guantanamo Bay currently facing military commissions. 
It is to fashion a system for prosecuting terrorists that will 
withstand judicial scrutiny in our courts, meet commonly accepted 
international legal standards, and be available for use in other non-
traditional armed conflicts in the future. As I will explain in greater 
detail later, I believe such a system should be predicated upon the 
Uniform Code of Military Justice (UCMJ) and its core elements of 
procedural protection, with minor modifications made where deemed 
appropriate. I will first briefly discuss military commissions in 
general and the substance of the Supreme Court's ruling in Hamdan 
before turning to what I believe are the legislative options currently 
under consideration.
---------------------------------------------------------------------------
    \1\ Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006.)
---------------------------------------------------------------------------
                     military commissions generally

    Military commissions have been used to try those accused of 
violations of the law of war as far back as the Revolutionary War when 
Major John Andre, Adjutant-General to the British Army, was prosecuted 
in 1780 on a charge that he had crossed the battle lines to meet with 
Benedict Arnold and had been captured in disguise and while using an 
assumed name.\2\ Others were conducted during the Mexican and Civil 
Wars, and more recently during World War II.\3\ There are actually 
three different types of military commissions: martial law courts, 
occupation courts, and war courts.\4\ Martial law courts have been used 
when martial law is declared, such as during the Civil War \5\ and in 
Hawaii during World War II.\6\ An occupation court can be used when the 
United States is an occupying power, such as in post-war Germany when 
an American dependent wife was charged with murdering her military 
husband in violation of the German criminal code.\7\ Finally, war 
courts have been used to prosecute violations of the law of war during 
a period of recognized armed conflict, such as during World War II.\8\ 
The military commissions which were established by President Bush in 
his Military Order of November, 13, 2001,\9\ and which were envisioned 
for use at Guantanamo Bay were of this last type, war courts.
---------------------------------------------------------------------------
    \2\ See generally Scott L. Silliman, On Military Commissions, 36 
Case W. Res. J. Int'l L. 529 (2005); Louis Fisher, Military Tribunals 
and Presidential Power (Univ. of Kansas Press 2005).
    \3\Id. 
    \4\ Major Timothy C. Macdonnell, Military Commissions and Courts-
Martial: A Brief Discussion fo the Constitutional and Jurisdictional 
Distinctions Between the Two Courts, The Army Lawyer, March 2002, DA 
PAM 27-50-350, 19, 37.
    \5\ Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
    \6\ Duncan v. Kahanamoku, 327 U.S. 304 (1946).
    \7\ Madsen v. Kinsella, 343 U.S. 341 (1952).
    \8\ Ex parte Quirin 317 U.S. 1 (1942); Johnson v. Eisentrager, 339 
U.S. 763 (1950).
    \9\ Military Order, Detention, Treatment,and Trial of Certain Non-
Citizens in the War against Terrorism, 66 Fed. Reg. 57,833 (2001).
---------------------------------------------------------------------------
               the court's opinion in hamdan v. rumsfeld

    The first issue facing the Court was jurisdictional could it still 
rule on Hamdan's case since the Government argued that the Detainee 
Treatment Act (DTA),\10\ enacted on December 30, 2005, ``stripped'' the 
Court of the power to hear Hamdan's petitions for habeas and mandamus, 
even though they had been filed in the district court over 2 years 
earlier and the Supreme Court had granted certiorari almost 2 months 
prior to the President signing the act into law. Using principles of 
statutory construction, the Court ruled that it retained 
jurisdiction.\11\
---------------------------------------------------------------------------
    \10\ Pub. L. No. 109-148, 119 Stat. 2739 (2005), hereinafter DTA.
    \11\ Hamdan, supra note 1, at 2769.
---------------------------------------------------------------------------
    On the merits, the Court initially probed the interplay between the 
powers of the President and those of Congress in time of war, raising, 
but not answering, a question left lingering from Milligan:

          ``Whether Chief Justice Chase was correct in suggesting that 
        the President may constitutionally convene military commissions 
        'without the sanction of Congress' in cases of 'controlling 
        necessity' is a question this Court has not answered 
        definitively, and need not answer today.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 2774.

    The Court went on, however, to specifically reject the Government's 
assertion that the President's authority to convene military 
commissions flowed from statute, whether it be the Authorization for 
the Use of Military Force (AUMF),\13\ the DTA, or the UCMJ.\14\ In one 
sentence of singular significance, albeit buried in a footnote, the 
Court clearly foreshadowed its principal holding:
---------------------------------------------------------------------------
    \13\ Pub. L. 107-40, 115 Stat. 224 (2001).
    \14\ ``The Government would have us dispense with the inquiry that 
the Quirin Court undertook and find in either the AUMF or the DTA 
specific, overriding authorization for the very commission that has 
been convened to try Hamdan. Neither of these congressional Acts, 
however, expands the President's authority to convene military 
commissions.'' . . . .``Together, the UCMJ, the AUMF, and the DTA at 
most acknowledge a general Presidential authority to convene military 
commissions in circumstances where justified under the 'Constitution 
and laws', including the law of war.'' (Id. at 2774, 2775).

          ``Whether or not the President has independent power, absent 
        congressional authorization, to convene military commissions, 
        he may not disregard limitations which that Congress has, in 
        proper exercise of its own war powers, placed upon his powers. 
        See Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 637 
        (1952) (Jackson, J., concurring). The Government does not argue 
        otherwise.''\15\
---------------------------------------------------------------------------
    \15\ Id. n. 23.

    The Court then discussed two statutory provisions which established 
just those limitations, Articles 36(b) and 21 of the UCMJ, 10 U.S.C. 
Sec. Sec. 836(b) and 821, respectively. The Court looked to the text of 
Article 36(b),\16\ interpreting it to mean that procedures established 
for military commissions must be uniform with those established in the 
UCMJ for courts-martial unless such uniformity was not practicable.\17\ 
The Court ruled that the President's determination that such uniformity 
was impracticable was insufficient to justify the variances from court-
martial procedures.\18\
---------------------------------------------------------------------------
    \16\ ``All rules and regulations made under this article shall be 
uniform insofar as practicable.'' 10 U.S.C. Sec. 836(b).
    \17\ Hamdan, supra note 1, at 2790.
    \18\ Id. at 2791.
---------------------------------------------------------------------------
    With regard to Article 21,\19\ the Court ruled that Congress had 
conditioned the President's use of military commissions on compliance 
with the law of war, of which Common Article 3 of the Geneva 
Conventions was a part and which dictated the use of a ``regularly 
constituted court affording all the judicial guarantees which are 
recognized as indispensable by civilized peoples.''\20\ Because the 
accepted definition of a regularly constituted court includes ordinary 
military courts (courts-martial) but excludes all special 
tribunals,\21\ the President's military commissions were not in 
compliance with Common Article 3 since he had demonstrated no practical 
need for deviating from courts-martial practice.\22\
---------------------------------------------------------------------------
    \19\ 10 U.S.C. Sec. 821.
    \20\ Id. at 2796, citing the Geneva Conventions of 1949, 6 U.S.T. 
at 3320 (Art 3(1)(d)).
    \21\ Id.
    \22\ Id. at 2797.
---------------------------------------------------------------------------
    Put most simply, the Court's ruled that in unilaterally creating a 
system for military commissions, the President exceeded his authority 
by running afoul of statutory limitations imposed by the Congress, in 
this instance in the UCMJ.\23\ Since my testimony is limited to the 
Court's ruling with regard to military commissions under the 
President's Military Order, I will not address whether or to what 
extent the Court's inclusion of Common Article 3 as a part of the law 
of war impacts other applications of executive power in the War against 
al Qaeda.
---------------------------------------------------------------------------
    \23\ In this regard, the Court's analysis in Hamdan is no different 
from that in earlier cases. Little v. Barreme, 6 U.S. (2 Cranch) 170 
(1804) and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
---------------------------------------------------------------------------
    possible legislative options in response to the court's decision

    One option being considered is to pass a law which which merely 
gives legislative sanction to the prior system for military 
commissions-putting everything back in place the way it was-
notwithstanding the Court's determination that there must be compliance 
with Common Article 3. Because Article VI of the Constitution treats 
statutes and treaties alike as ``the Supreme Law of the Land,'' \24\ 
and a later enacted statute displaces an earlier one,\25\ I believe 
that, as a matter of domestic law, Congress could legislatively 
restrict the application of Common Article 3 with regard to military 
commissions. There is, however, no assurance that such a ``reblued'' 
military commission system would pass judicial muster and, at the very 
least, it would invite additional challenges in the courts and further 
years of uncertainty. More importantly, merely giving Congressional 
sanction to the minimal level of due process in a military commission 
system which was criticized as inadequate by the Supreme Court \26\ and 
which fails to satisfy commonly recognized international legal 
standards is, I believe, imprudent.
---------------------------------------------------------------------------
    \24\ ``This Constitution, and the Laws of the United States which 
shall be made in Pursuance thereof; and all Treaties made, or which 
shall be made, under the Authority of the United States, shall be the 
supreme Law of the Land; and the Judges in every State shall be bound 
thereby, any Thing in the Constitution or Laws of any State to the 
Contrary notwithstanding.'' U.S. Const. Art VI, cl. 2.
    \25\ See Head Money Cases, 112 U.S. 580, 598-599 (1884).
    \26\ A military commission system with a similar lax standard for 
the admissibility of evidence and little overall due process drew 
criticism from two justices of the Supreme Court in an earlier era. 
Although the Court upheld the constitutionality of the military 
commission which convicted Japanese General Tomoyuki Yamashita, 
Justices Rutledge and Murphy wrote scathing dissents about the lack of 
due process requirements in that commission. Yamashita v. Styler, 327 
U.S. 1, 26-29, 44-45, 48-66 (1946).
---------------------------------------------------------------------------
    A second option is for Congress to craft a statute authorizing a 
completely new military commission system, using the President's 
Military Order and Military Commission Order No. 1 \27\ as a base line 
and ``building up'' to a higher level of due process by adding in 
procedural protections from the UCMJ. Such a statute could which remedy 
most of the defects which the Court cited in its opinion, and yet still 
satisfy those who demand a more flexible standard for the admissibility 
of evidence. For example, less reliable testimony such as unsworn 
statements or hearsay is not allowed in our Federal and state courts, 
but could be admissible in military commissions if Congress made that 
the rule. Even under this more flexible standard, however, I strongly 
believe that statements of an accused or others acquired through 
coercive interrogation techniques should not be allowed into evidence 
under any circumstances. If the statute provided that a detainee would 
be present at all trial sessions, unless he became disruptive; if there 
were provisions to ensure that classified national security information 
was safeguarded; and if there was some provision for a more substantial 
judicial review of a conviction, such as in the United States Court of 
Appeals for the Armed Forces which deals with military justice issues, 
such a system would, I think, satisfy the objections of most. In other 
words, if virtually all the due process safeguards which currently 
apply in courts-martial, save for a more flexible standard for the 
admissibility of evidence, were grafted into a newly enacted military 
commission system, that type of legislative response would be, I 
suggest, a better option. I submit, though, that this option starts 
from the wrong base line--the old system--and is unnecessary because an 
already existing statute can readily be tailored to achieve a better 
result.
---------------------------------------------------------------------------
    \27\ Department of Defense Military Commission Order No. 1, Mar. 
21, 2002, available at http://www.defenselink.mil/news/legalrefs.htm 
(last visited July 17, 2006).
---------------------------------------------------------------------------
    The third option, and the one I advocate, is to use the UCMJ \28\ 
as the base line, and then make whatever minor adjustments may be 
necessary where certain provisions of the Code or the Manual for 
Courts-Martial \29\ are deemed impracticable. The UCMJ is a fair and 
well-proven system of law, created by Congress some 56 years ago partly 
in response to the many criticisms of military justice actions during 
World War II where there was little due process in courts-martial. It 
is the military criminal code used to deal with misconduct committed by 
members of our own Armed Forces, and the Supreme Court clearly implied 
that it could appropriately and with judicial approval be used to 
prosecute those at Guantanamo Bay. Further, and more importantly, the 
Code already provides for jurisdiction to prosecute, either by courts-
martial or military commission, those who violate the law of war during 
armed conflict,\30\ although I am unaware of any such trials being 
conducted under this authority. If we were dealing with individuals who 
were classified as prisoners of war, the Third Geneva Convention 
requires that only a court-martial (or perhaps trial in Federal 
criminal court) could be used to prosecute them; \31\ but those held at 
Guantanamo Bay have not been so classified, so either system under the 
UCMJ, courts-martial or military commission, is permitted. To use 
courts-martial, the type of tribunal used for our own military 
personnel, with its inherent procedural protections which meet and 
sometimes exceed those in Federal criminal trials, is clearly not 
appropriate.
---------------------------------------------------------------------------
    \28\ 10 U.S.C. Sec. 801 et seq. (2000 ed.).
    \29\ Manual for Courts-Martial, United States (2005 edition), Exec. 
Order No. 13365, 69 Fed. Reg. 71333 ((2004) (hereinafter MCM).
    \30\ Article 18 reads, in part, ``General 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.'' 10 U.S.C. Sec. 818. Article 21 reads ``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 
commissions, provost courts, or other military tribunals'' 10 U.S.C. 
Sec. 821. Article 2(a)(12) extends personal jurisdiction to those non-
military, non-U.S. citizens at Guantanamo Bay: ``Subject to any treaty 
or agreement to which the United States is or may be a party or to an 
accepted rule of international law, persons within an area leased by or 
otherwise reserved or acquired for the use of the United States which 
is under the control of the Secretary concerned and which is outside 
the United States and outside the Canal Zone, the commonwealth of 
Puerto Rico, Guam, and the Virgin Islands.'' 10 U.S.C. Sec. 802(a)(12).
    \31\ Article 84 provides that ``A prisoner of war shall be tried 
only by a military court, unless the existing laws of the Detaining 
Power expressly permit the civil courts to try a member of the armed 
forces of the Detaining Power. . .''; and Article 102 states ``A 
prisoner of war can be validly sentenced only if the sentence has been 
pronounced by the same courts according to the same procedure as in the 
case of members of the Armed Forces of the Detaining Power. . . .'' 
Geneva Convention Relative to the Treatment of Prisoners of War, arts 
84, 102, July 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
---------------------------------------------------------------------------
    The use of military commissions, as provided for under the Code, is 
therefore the better prosecutorial forum. Even before the enactment of 
the UCMJ in 1950, military commissions were recognized as an alternate 
form of tribunal for use by commanders in the field when courts-martial 
were deemed inconvenient or impracticable.\32\ However, Congress in the 
UCMJ stipulated that the rules and regulations under the Code should be 
``uniform insofar as practical'' \33\ and, no matter how that provision 
was interpreted in the past, the Supreme Court in Hamdan said that it 
meant that ``the rules set forth in the Manual for Courts-Martial must 
apply to military commissions unless impracticable.'' \34\ The task, 
then, is to identify those court-martial provisions which would clearly 
be impracticable when prosecuting terrorists by military commission. I 
suggest that those articles of the UCMJ which would not, in part or in 
whole, be practicable in military commissions are few; the greater 
number would be in the Manual for Courts-Martial, an executive order, 
which requires action only by the President, perhaps with congressional 
approval.
---------------------------------------------------------------------------
    \32\ The legislative history of Article 15 of the Articles of War, 
the predecessor of Article 21 of the UCMJ, is relevant in this regard. 
Army Brigadier General Crowder, then Judge Advocate General of the 
Army, testified before the Senate Subcommittee on Military Affairs on 
February 7, 1916, as follows:

    ``General Crowder: Article 15 is new. We have included in Article 2 
as subject to military law a number of persons who are also subject to 
trial by military commission. A military commission is our common-law 
war court. It has no statutory existence, though it is recognized by 
statute law. As long as the articles embraced them in the designation 
``persons subject to military law,'' and provided that they might be 
tried by court-martial, I was afraid that, having made a special 
provision for their trial by court-martial, it might be held that the 
provision operated to exclude trials by military commission and other 
war courts; so this new article was introduced. . . . It just saves to 
these war courts the jurisdiction they now have and makes it a 
concurrent jurisdiction with courts-martial, so that the military 
commander in the field in time of war will be at liberty to employ 
either form of court that happens to be convenient. . . . Yet, as I 
have said, these war courts never have been formally authorized by 
statute.'' (Emphasis added) Testimony of Brigadier General Enoch H. 
Crowder, United States Army, Judge Advocate General of the Army, on 
February 7, 1916, before the Subcommittee on Military Affairs, United 
States Senate, Revision of the Articles of War, S. Rep. No. 130, 64th 
Cong., 1st Sess. 40.
    \33\ UCMJ, Article 32(b), supra note 16.
    \34\ Hamdan, supra note 1, at 2791.
---------------------------------------------------------------------------
    As to the UCMJ, I suggest that Article 31(b),\35\ requiring the 
rendering of advice of rights to a person being interrogated who is 
suspected of an offense, has no application in a military commission 
procedure. Similarly, Article 32,\36\ requiring a pretrial 
investigation prior to the convening of a general court-martial, would 
be neither necessary nor appropriate. Finally, with regard to appellate 
review of convictions of military commissions, Article 66 \37\ would 
need to be amended by adding military commissions to the jurisdiction 
of the service Courts of Criminal Appeals, and also adding a provision 
for the President to designate which of the respective Courts of 
Criminal Appeals would exercise jurisdiction over the commissions. 
Since Article 67,\38\ regarding review by the Court of Appeals for the 
Armed Forces, uses the term ``cases'', there appears to be need for any 
amendment to that provision.
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    \35\ 10 U.S.C. Sec. 831(b).
    \36\ 10 U.S.C. Sec. 832.
    \37\ 10 U.S.C. Sec. 866.
    \38\ 10 U.S.C. Sec. 867.
---------------------------------------------------------------------------
    Proposed amendments to the UCMJ sponsored by the National Institute 
of Military Justice (NIMJ), which are on record with the committee and 
which I specifically endorse, would effect the change to Article 66. As 
to excluding Article 32 from military commission procedure, the NIMJ 
proposal also contains a recommended amendment to Article 36 which 
would grant the President the authority to prescribe procedures for 
military commissions, applying the principles of law and the rules of 
evidence prescribed for general courts-martial (with the exception of 
Article 32) insofar as he considers them practicable, as long as those 
procedures are not contrary to or inconsistent with international law. 
The amendment also contains a reporting requirement to Congress 
regarding the President's determination of impracticability. Finally, 
the NIMJ proposal includes an amendment to Article 21 \39\ which would 
provide specific statutory authorization for the President to establish 
military commissions (and provost courts) in time or war or pursuant to 
an authorization for the use of force, as long as the commissions are 
consistent with international law, including the law of war. Since I 
take the view that the President, when acting pursuant to his commander 
in chief powers under Article II, Section 2, is constitutionally 
empowered to establish military commissions unless constrained by 
Congress,\40\ I do not believe this proposed amendment to Article 21 is 
necessary, but it may be prudent as an additional, statutory grant of 
authority for him to establish a commission system pursuant to the 
Code.
---------------------------------------------------------------------------
    \39\ UCMJ, Article 21, supra note 30.
    \40\ See Madsen v. Kinsella, supra note 7, at 348.
---------------------------------------------------------------------------
    There are several provisions of the Manual for Courts-Martial which 
would seemingly not be practical in military commission procedures, 
but, as mentioned above, making changes to these provisions is within 
the purview of the President but would also presumably be subject to 
the reporting requirement of NIMJ's proposed amendment to Article 36. 
The speedy trial rules governing courts-martial,\41\ as well as the 
myriad rules governing the admissibility of evidence and the 
application of the exclusionary rule,\42\ will need to be tailored to 
meet the exigencies of captures and acquiring evidence in battlefield 
environment while still maintaining a fundamental fairness to the 
accused. The provisions which govern the admissibility of classified 
and other sensitive government evidence (when requested by the accused) 
\43\ which generally mirror the Classified Information Procedures Act, 
\44\ would have to be amended to provide for the safeguarding and use 
of classified and other sensitive government information to be 
introduced by the government to prove the guilt of the accused, while 
still ensuring measure of authenticity of that evidence. As to the many 
changes to the military rules of evidence governing courts-martial 
which might be required when applied to military commissions, a general 
clause regarding exceptions could perhaps be added to M.R.E. 101 \45\ 
and, more especially, M.R.E. 1101 \46\ to effect that purpose.
---------------------------------------------------------------------------
    \41\ MCM, supra note 29, at R.C.M. Sec. 707.
    \42\ See generally MCM, supra note 29, at M.R.E. 301-504
    \43\ Id. at M.R.E. 505-506.
    \44\ 18 U.S.C. app. III Sec. Sec. 1-16 (1988).
    \45\ MCM, supra note 29, at M.R.E. 101.
    \46\ Id. at M.R.E. 1101.
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    Finally, although I have offered a few proposed changes to the 
rules and procedures for courts-martial which, to my mind, would make 
them more adaptable for use in military commissions, I strongly urge 
that a committee of judge advocates be formally convened to carefully 
study and make recommendations to the President as to what may, in 
their view, be required. They are the practitioners who know the Code 
and the Manual best. If this proposed military commission system under 
authority of the UCMJ is to provide an appropriate forum for 
prosecuting those we now detain, as well as those who commit violations 
of the law of war in future conflicts, we must ensure that perceived 
pressures to legislate quickly do not cause us to err and fail in our 
goal to establish a system which reflects our national values and which 
satisfies commonly accepted principles of international law.
    Mr. Chairman, Senator Levin, and members of the committee, thank 
you again for inviting me to share my views with you. I look forward to 
answering any questions you might have.

    Chairman Warner. Elaborate somewhat on how we reach out to 
this group. Are they structured in such a way?
    Mr. Silliman. Mr. Chairman, I would recommend that you go 
back to the JAGs who were before you last week, and you solicit 
from them ideas coming from their trial practitioners. Every 
Service has a system of trial lawyers and defense lawyers that 
are in court virtually every day.
    Chairman Warner. I'm familiar with that.
    Mr. Silliman. Yes.
    Chairman Warner. It's from that group.
    Mr. Silliman. It is from that group that I think you need 
to hear. We can give you conceptual ideas on where changes 
should be made. Those are the ones who are actually in court. 
Also, Dwight Sullivan's defense lawyers for the military 
commission system. Charlie Swift, Lieutenant Commander Swift, 
who testified before in the Judiciary Committee, is one of 
those who would give you great advice and counsel on how these 
systems can be built to be fair and yet meet the exigencies of 
battlefield. I think again, not to change the charter that you 
created this morning, Mr. Chairman, it is vital that as you 
receive that type of information, which you need, that you not 
overlook those that can give you the best counsel, because 
they're doing it now. I'm not. They are.
    Mr. Schlueter. Could I also respond to that, Senator? I 
don't know if you had intended to call former retired Major 
General John Altenberg, who is the appointing authority for the 
commissions, or any of the individuals who were otherwise 
involved in prosecuting the cases, but if you're analyzing the 
current rules concerning military commissions and how they had 
intended to apply them, it strikes me that they could provide 
helpful information.
    One concern I'd have about just reaching out to the junior 
JAGs is, if they haven't had any hands-on experience with the 
commissions themselves, they can tell you firsthand how the 
courts-martial system works, but I would hope that, at this 
stage, we'd at least have some experience from those actually 
on the ground. One was quoted earlier, by one of the earlier 
panelists, who said that he wished that they tried court-
martials to begin with. So, I'd recommend you consider those 
individuals, as well.
    Chairman Warner. Did you wish to reply to that observation 
there?
    Mr. Silliman. No. I'm well familiar with retired Major 
General John Altenberg, and I just think that because he is the 
appointing authority for the current commission system, it may 
be a little bit awkward for him to provide that type of advice. 
However, I think that when you look to the DOD, and the 
military commission system is a part of the DOD, that you allow 
the JAGs, who provide the lawyers for that system, to go within 
their own ranks and select the four, five, or six practitioners 
who know the system far better than any of us ever could. Then, 
to allow them to provide that type of listing of which military 
rule of evidence, which rule for court-martial, and, on the 
larger scale, which article of the UCMJ, might need to be 
amended. Again, my strong suggestion, Mr. Chairman, is as to 
the code itself, which requires action of Congress, the number 
of articles that need to be changed or amended are very few.
    Mr. Katyal. On this question, I would add to Professor 
Schlueter, I think his advice is a good one. I'm a civilian 
defense counsel in the Office of Military Commissions. My 
opposite is a prosecutor, Stu Couch, who I think is a fantastic 
prosecutor and, I think, could illuminate for the committee or 
others on his team. It doesn't need to be General Altenberg, 
why they think the rule existing rules for court-martial aren't 
enough.
    From my perspective, I think cases like Hamdan could be 
tried tomorrow in an court-martial. The ideas about hearsay, 
chain of custody, classified information, I think, can all be 
handled within the existing system. I think it would be very 
helpful to hear from the prosecutors in the commissions office 
as to why they disagree.
    Chairman Warner. All right.
    I would invite this gentleman, that you've designated, to 
visit with our counsel for a few minutes, at the conclusion of 
this hearing.
    Senator Levin, I'm going to let you lead off the questions.
    Senator Levin. If I understand your point, Professor, you 
believe there are so few changes that need to be made in the 
UCMJ, statutorily, they're the advice that they would give 
would not be as much statutory changes as to changes in the 
manual. Is that accurate?
    Mr. Silliman. I think you would invite them to do both, 
Senator Levin.
    Senator Levin. But if you're right, there would not be very 
many that they would be forwarding to us that require statutory 
changes, and most of their recommendations would be UCMJ 
changes. Am I reading you right?
    Mr. Silliman. Yes, you are, Senator. The statement that 
Senator Cornyn used, that came from Mr. Dell'Orto, about 140 to 
145 articles of the code that would need to be changed, I 
think, is, with all due respect, absurd. There aren't that many 
more articles in the code to begin with. What I'm suggesting is 
that there's confusion, as far as what requires congressional 
action and what requires a change by the President of the 
United States in the Executive order. I would, again, suggest 
that you not disturb that fundamental delegation of authority 
that was made in 1951 to the President, to allow him to craft 
those, with your knowledge, with notice to you, with some kind 
of cooperation, but I do not believe that it would be, in my 
judgment, appropriate for Congress to start to legislate what 
has previously been within the purview of the President, as far 
as rules and military rules of evidence.
    Senator Levin. Now, if we do that, however, we're not going 
to be very different from what his current commissions are?
    By the way, let me back up. I think what Senator Cornyn was 
saying is, it would take, according to the DOD; this was not 
his assessment, he said that the DOD had indicated there would 
have to be 120 changes--did he say, in the code or in the 
manual?
    Mr. Silliman. No, I didn't mean to say that's Senator 
Cornyn's comment.
    Senator Levin. No. He's saying the code.
    Mr. Silliman. But I think the reference was about 150 
changes to the military rules of evidence, 170 to the rules for 
courts-martial, and I think the comment was 140-plus articles 
of the code would have to be changed. I think that's incorrect.
    Senator Levin. We're going to get that list.
    Mr. Silliman. Right.
    Senator Levin. We would be happy to share that with you, 
and then you could comment specifically on it. But I'm just 
wondering whether or not, if we simply provide a notice 
requirement for the President, whether we're not going to find 
the President doing what he's done before, which is to get as 
close to the commission rules as he possibly can; whereas, I 
don't think that's the basic thrust of the Court.
    Mr. Silliman. Senator, if, in fact, this list is done by 
the Active-Duty military lawyers.
    Senator Levin. It can be done by the President.
    Mr. Silliman. Well, no, but.
    Senator Levin. The President's counsel.
    Mr. Silliman. Input comes from the military lawyers.
    Senator Levin. They tried it once.
    Their input was not accepted, when it came to rules of 
detention.
    Mr. Silliman. I think this Congress has reacted very 
strongly to the fact that the military lawyers were shut out. 
It was noted in several investigations.
    Senator Levin. It may have been noted, but we didn't react 
very strongly, in my judgment.
    Mr. Silliman. All I'm suggesting, Senator Levin, with all 
due respect is.
    Senator Levin. Some members of it did, obviously. Some of 
us did. But I don't think Congress responded.
    Mr. Silliman. I just worry, sir, as far as the long-term 
approach, that if we're looking to create a system that is not 
just for the 10, 20, or 30 that we're dealing with now, but 
that will be a system in place for years, that we not shift the 
balance so far that Congress itself must legislate these rules. 
Again, the fundamental delegation, from the Constitution 
through the UCMJ, is to the President. Now, if the President 
has disregarded it in the past, then I think steps should be 
taken to ensure that there be some notice, some requirement 
there. I do not recommend that Congress take on the 
responsibility of legislating this system.
    Senator Levin. My final request would be then to all three 
of you would be to give us your starting point, whatever it is, 
and the changes that you believe are either desirable from that 
starting point. That usually would be if you start from the 
UCMJ, I would think or required my hunch would be, that verb 
would be appropriate if your starting point is the commission 
order. But whether my verb is correct or not, the changes that 
you would urge upon the committee, from whatever starting point 
you choose and if you choose no starting point, whatever--
however you want to recommend and I know the chairman's very 
much inclined to get advice from wherever sources we can, but I 
would surely agree that we should ask the JAGs to have some of 
their people, who are in the middle of the cauldron, to give us 
their practical experience on what specific actions we ought to 
take legislatively. Also, what changes they would recommend in 
the manual in order to accommodate what, I guess, has been 
called practicality or necessity or common sense. Obviously, 
there are some commonsense differences here between the way we 
are going to handle these criminal trials and the way we would 
handle criminal trials of people who are charged with crimes 
who are wearing our military uniform, just based on the 
circumstances and without going into too many details, what is, 
I think, obvious.
    Mr. Silliman. In my prepared statement, Senator Levin, I do 
give you those thoughts.
    Senator Levin. Are those examples or is that comprehensive?
    Mr. Silliman. That is one of those ambiguous words, I 
guess, Senator Levin.
    Senator Levin. No, I mean, is that intended to be a full 
listing of the changes that you would recommend?
    Mr. Silliman. No, it is my suggestion, Senator, but I also 
do say, at the end of my prepared statement, that I do very 
strongly recommend that you go to the those Active-Duty JAGs.
    Senator Levin. No, I didn't mean that. I was talking about 
you, yourself, in terms of any specific recommendations.
    Mr. Silliman. I do refer to Article 36(b), 31(b), and also 
any specific series of rules for court-martial and military 
rules of evidence that I think may be considered impracticable, 
as far as military commissions. Yes, I do.
    Senator Levin. We would welcome any additional specifics 
from you and from our other panel members, a list of specifics 
that you would recommend to us, because we're going to have to 
do this, one way or another, and we want to do it right. The 
chairman, obviously, wants to proceed in a thoughtful way, and 
that's what he's doing. He's doing it with the support of all 
the members of the committee, whether we agree with the final 
outcome or not. The process which we are using here is one 
which we intend to be as thoughtful and as thorough as we 
possibly can make it under these circumstances that we face.
    Thank you all.
    Chairman Warner. Yes. I join with Senator Levin on that. 
He's talking about where we would start. Do give us some idea 
of where you want to end up, though. It's one thing to give us 
a starting place, but we want to make sure we have your views 
as to where we should end up on this thing.
    The situation we're in we're at war, as a Nation. I know 
this institution, I think I say with a sense of humility, as 
well as anybody, and I know what has to be done.
    My press secretary came up and turned on the mike; it's 
like the President the other day at the Big 8, he had his mike 
on at the wrong time. Now mine was off at the wrong time. 
[Laughter.]
    I'll start all over again.
    I join with Senator Levin, as you looking at your starting 
places, make sure we know where you'd like to see it end up.
    But, gentlemen, we're at war. We cannot leave this thing 
dangling in this situation. The Nation was somewhat taken aback 
at the far reach of the Supreme Court on this matter. I just 
know for a fact how this institution works. If we don't get 
this thing done in this Congress, mind you we convene with the 
new members getting to sign up for pay the first week in 
January, and then we go home for 3 weeks. So, that's all we 
achieve in January. Then, February, we're trying to form into 
our committees and our leadership. I'm not here to fault 
Congress; it's just the way this institution works. I do not 
think we can leave this situation dangling out here without 
some legislative solution. So, we're going to do our best, and 
we're fortunate to have folks like yourselves who are willing 
to step up and help us. I thank you.
    Mr. Silliman. Mr. Chairman?
    Chairman Warner. Yes.
    Mr. Silliman. One thing, in following what you said. In 
light of the time, I think it's important that this committee 
also have a precise focus. The Supreme Court did not strike 
down interrogation practices of the United States. The Supreme 
Court did not strike down any other application of presidential 
executive power in the war on terrorism. It dealt specifically 
and precisely with military commissions. There have been a lot 
of questions and comments from the committee with regard to 
concerns about interrogation techniques, quite apart from 
whether evidence is admissible. I think you can't solve all of 
that now. If your goal is to respond directly to the Supreme 
Court opinion and to put back in place some system for 
prosecution, I think that can be done, but it must be done to 
the extent that you can do it apart from those other concerns.
    Senator Levin. Mr. Chairman, if I can comment on that.
    Chairman Warner. Sure.
    Senator Levin. I just fully agree with that, and I tried, 
in my opening statement, to carve that out, because there's 
been so much misunderstanding, including in the media, about 
what we are dealing with. We're not dealing with detention and 
how long people can be detained. It is a fascinating, 
complicated question. If this is a long war, if it's a war with 
no known end, when do people ever have a prospect of leaving 
detention? It's a tremendously important question. But we're 
not dealing with that. We're not dealing with interrogation 
techniques. Lord knows, we should do that, with a lot of 
oversight. But that's not the question we're dealing with, 
except as it might apply to admissibility of evidence in a 
criminal trial. We're dealing with a criminal trial. We have to 
do it right, but it's a very narrow group of people, maybe 10 
or 20 or 30 people. But, as you all point out, we're 
legislating for the future, it's not just for these 30 people. 
We should recognize that it's not the hundreds that are there 
that we're dealing with
    If I may say, Mr. Chairman, if we do take additional time 
to do this--and I hope we don't need to--it's not as though 
people are going to be released to the battlefield by our 
delay. So, I hope we can do it this year. I'm with the 
chairman. I support that effort. But it's not as though that if 
we do delay, that they're going to have a right to a speedy 
trial. There's no suggestion of that. It's also true, on the 
other side of this, that whenever we adopt these rules, that 
when these trials take place, that when they're acquitted, if 
they are acquitted, they're not free. They are still in 
detention. That's lost track of; as well, I'm afraid, by 
members at times and by the media and by the public. It's a 
very narrow issue that we have to grapple with, and we ought to 
do it right. Hopefully, under our chairman's leadership, we can 
do it this year.
    Chairman Warner. We thank you very much. Thank you, Senator 
Levin. Again, we express appreciation of the entire Senate for 
your participation today.
    The hearing is adjourned.
    [The prepared statement of William E. Eckhardt is also 
included for the record:]

               Prepared Statement by William E. Eckhardt

                    military commissions post hamdan

    Members of the Senate Armed Services Committee: It is an honor and 
a privilege to be able to express my views on how Congress should 
proceed in light of the recent Hamdan decision. Unfortunately, such a 
sensitive and important decision must be made under severe time 
constraints and political pressure. Rules governing military 
commissions are old and unrevised but must be retooled to apply in 
frighteningly different and unimagined circumstances.
    Military legal problems are solved using two tools--history and 
law. Any approach must be multidisciplined. A solution cannot be found 
while wearing ``purely legal blinders.'' For example, the rule of law 
on the battlefield is applied using rules of engagement which are 
composed of international law, domestic law, diplomatic constraints, 
political constraints, and technological constraints. These different 
factors have to be combined and harmonized to provide a workable 
procedure. The goal is to promote the rule of law, but many 
interdisciplinary factors--not just law--must be considered. In short, 
any military legal system must be practical and flexible.
    Turning first to history. No--and I repeat--No country that has had 
a serious terrorism problem has been able to use its normal criminal 
law system. In societies pressed by the threat of terror, adjustments 
often are made for apprehensions, for detentions, for evidentiary 
rules, and for protection of the system (buildings, judges, juries). 
The most immediate problem before this committee deals with procedure--
handling classified material and dealing with hearsay. The debate today 
on rules for military commissions, unfortunately, will be repeated--in 
all probability--for our civilian Federal rules of evidence. This is 
the first of several very serious civil liberty issues that we must 
face as a country in this new time of terror.
    Legal problems in an age of terror should be handled with a two 
step approach. First: Does the government need the unusual ``power''? 
Has it justified its request? Second: If there is a demonstrated need 
for the procedure, change or power, its enactment should be balanced 
with steps to control the exercise of that power and with heightened 
review procedures to be certain that there is no abuse and that justice 
is done.
    Turning to the issue at hand, this committee must decide how to 
constitute military commissions, must decide what evidentiary rules and 
review procedures are required, and must help clarify the United State 
Government's position on Geneva Convention Common Article 3.

                           commission system

    The United States needs a system to exercise judicial power outside 
the boundaries of the continental United States. Judicial power within 
the United States is reposed in our Civilian Article III court system. 
Historically, application of judicial power outside the continental 
United States has been done by military law with its twin components--
Courts-Martial and Military Commissions--under the authority of Article 
I. The Courts-Martial System is the gold standard because of its years 
of maturing under the auspices of the 1950 Uniform Code of Military 
Justice (UCMJ) and the 1983 Military Justice Act authorizing Supreme 
Court review of military justice. However, we are now paying the price 
for long ignoring the true ``military'' in military law. We are 
presently forced to concentrate on military commission law with its old 
rules and quaint customs.
    We must not be distracted by the ``military'' label of these 
Commissions. They are ``military'' because the logical place to place 
this power is in the military code and because the military is the 
agent for exercising this Federal judicial power. Because they are 
``military,'' they must not be perceived as second class or less than 
legitimate. Historically, after limited use in the Revolutionary War, 
General Winfield Scott used military commissions extensively in the 
Mexican War. Later, at the turn of the century in the Elihu Root era, 
the judicial power of the United States was exercised extra 
territorially on a broad scale by commissions and by territorial 
courts. Applied judicial power exercised under Article I must be both 
practical and flexible. That power must never veer from the Rule of Law 
but, at the same time, it must be applied with common-sense practical 
flexibility.
          commission procedures: evidentiary rules; safeguards
    The immediate evidentiary problems appear to be how to treat 
hearsay and how to handle classified information. Following the method 
for handling legal problems in a time of terror noted previously, 
Congress needs to ascertain if these evidentiary rules are necessary. 
It appears to me that the need is self-evident that unique rules are 
required. The next step is to determine safeguards in their 
application. In short a judge should be required to make certain 
factual findings that would be extensively reviewed for abuse of 
discretion. Basic due process would require that no evidence be 
admitted that a judge found to be ``unreliable.'' Certainly, no 
evidence that is the result of torture should be admitted. National 
security rulings should be tested rigorously by requiring strict review 
of fact finding on the part of the presiding judge.
    Congress should pay special attention to the review process. When 
the government requires an extra ``iron fist'' there should always be 
appropriate ``checks and balances'' in the review procedures. The 
public must have confidence--both domestically and internationally--
that justice has been done.

                   geneva convention common article 3

    Congress must pay close attention to the Common Article 3 problem. 
The technical Geneva Convention Regime is in grave peril. The legal 
system rests on twin pillars: state restraint and reciprocity. Both 
pillars are missing in our age of terror. Yet the ideals and principles 
of the Geneva Convention are the very essence of the ethic of the 
profession of arms. That ethic is founded upon long respected just war 
tradition, ancient concepts of military chivalry, and commitment to the 
rule of law. The United States will follow Geneva Convention principles 
even if there is no technical requirement to do so. But if one side 
totally refuses to acknowledge or abide by time-honored rules designed 
to protect civilians, prevent unnecessary suffering, and safeguard 
property from unnecessary destruction, it may be unreasonable to expect 
strict, technical compliance by the other side.
    Common Article 3 presents the problem of how to treat individuals 
captured on the battlefield who do not comply with the rules. Should 
individuals who do not follow the rules be entitled to the special and 
privileged status of prisoners of war? The United States Government for 
years--through numerous administrations--has taken the principled 
position that one must obey the rules before one is entitled to the 
privileged status of prisoner of war. Our European Allies have taken a 
different stance--largely for supposed humanitarian reasons. The 
Europeans believe that all persons detained should be treated as 
prisoners of war. The United States believes that such a position 
totally undermines the very basis for having a Geneva Convention system 
and discourages compliance with the rules of war. In this very public 
dispute, the United States is morally correct but its position has been 
a public relations disaster. However, everyone agrees, as the United 
States Government has repeatedly stressed, that detainees must be 
treated humanely.
    Because of the controversy surrounding this issue, Congress needs 
to clarify and to give legitimacy to an authoritative position of the 
United States Government regarding the applicability of Common Article 
3. I am concerned that there may be a difference in the standards of 
treatment of detainees required by the McCain Torture Legislation and 
by the ruling of the Supreme Court in Hamdan. Regardless of the 
technicalities here, confusion is the enemy. Our soldiers deserve and 
our Nation's honor requires clarity. Further, clarification would seem 
to be necessary to give complete legitimacy to future military 
commissions.

                               conclusion

    In conclusion, Congress is now called upon to address the true 
``military'' in military law. It must visit an ancient concept of 
military commissions and give them vitality and legitimacy. Congress 
must debate for the first time a change in courtroom rules necessitated 
by terrorism. Importantly, it must clarify the status of Geneva 
Convention Common Article 3 at a time when the entire Geneva Convention 
Regime is in question.
    Yet, I am confident that Congress will provide a legitimate 
military law system--just as it did in the Military Justice Act of 
1950. As with that historic Act, the modernized military commission 
system can become a respected model which will be admired and emulated.

    [Questions for the record with answers supplied follow:]

               Questions Submitted by Senator John Warner

                          appellate procedure

    1. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr. 
Silliman, in your opinion, does the appellate procedure set out in the 
Detainee Treatment Act (DTA) for final decisions of military 
commissions (i.e., a limited scope of review in the District of 
Columbia Circuit) comply with the requirements of Common Article 3 
relating to ``judicial guarantees?''
    Mr. Fidell. The authoritative commentary to Common Article 3 
cautions (III Pictet at 40) that ``[a]ll civilized nations surround the 
administration of justice with safeguards aimed at eliminating the 
possibility of judicial errors.'' The DTA's limitations on the scope of 
appellate review needlessly raise a question as to whether the military 
commissions meet that standard. Even if the appellate review prescribed 
by the DTA satisfies Common Article 3's minimal requirement relating to 
``judicial guarantees,'' it should be corrected because it is out of 
step with normal review of military criminal cases and because it vests 
appellate review in the wrong court.
    The United States already has an expert military appellate court: 
the United States Court of Appeals for the Armed Forces (USCAAF) 
(previously known as the United States Court of Military Appeals). 
USCAAF has been in existence since 1951, and has decided thousands of 
cases. It has an excellent reputation and is an institution of which 
our country can be proud. There is no reason to shunt the appellate 
review of military commission cases into the United States Court of 
Appeals for the District of Columbia Circuit, a court whose involvement 
with military justice matters is confined to occasional Administrative 
Procedure Act cases and even rarer military habeas corpus cases.
    The fact that the DC Circuit has ruled as it has (i.e., for the 
government) on Guantanamo-related habeas corpus cases is not a proper 
basis for making it responsible for direct review of military 
commission decisions. Doing so reflects a kind of legislative forum-
shopping that does not contribute to public confidence in the 
administration of justice, despite the high regard in which the DC 
Circuit is widely and justifiably held.
    Mr. Katyal. No. Section 1005(e) of the DTA, under the 
interpretation given to the Act by the government, turns the 
traditional concept of a fair trial on its head. It postpones 
constitutional review of trial procedures until after trial and 
conviction have occurred. The government has claimed that ``review 
after military justice verdicts is the norm, not before the verdict.'' 
But as the Supreme Court said in Hamdan, that principle derives from 
courts-martial--a battle-tested system with independence and a 
tradition. Here, when dealing with the civil courts, the tradition has 
always been to review military commissions upfront, as in Ex Parte 
Quirin (1942) and Hamdan itself.
    The DTA system is problematic for four reasons. First, review is 
only granted automatically to those defendants who are imprisoned for 
longer than 10 years or who face the death penalty.  1005(e)(3). 
Because many of the individuals currently detained are accused only of 
conspiracy, the DTA cuts off automatic review in most cases that could 
possibly be brought to trial. For these individuals, appellate review 
is granted only at the discretion of the court of appeals. Without an 
avenue for appeal before or during the trial, these prisoners would 
face a court with unfettered discretion.
    Second, even in those cases where judicial review is possible, the 
DTA creates the possibility of an unnecessarily long trial process. 
Under the DTA, the first trial must proceed to completion and result in 
a final decision. In the nearly 5 years since the tribunals were 
established, not a single trial has even commenced. Moreover, even if a 
trial were to proceed in full, its result would only be final upon the 
President's determination to that effect. See Commission Order No. 1  
6(H)(6). In effect, the DTA puts judicial review at the mercy of 
prosecutors and the President. Then, after the final decision, after 
review in the DC Circuit Court of Appeals, and presumably after review 
in the Supreme Court, a decision overturning the verdict would result 
in yet another trial. Prosecutors would have to scramble to retry these 
defendants 8-10 years after their capture. Reducing the scope of 
judicial review to final decisions only subjects both the defendants 
and prosecutors to excessive delays, high costs, and a potentially 
interminable trial process. Basic standards of criminal procedure, as 
well as administrative efficiency, require that trial procedures, writ 
large, be constitutional the first time around.
    Third, the limited scope of review in the DC Circuit also threatens 
basic fair trial rights. As Justice Kennedy notes in his concurrence, 
``provisions for review of legal issues after trial cannot correct for 
structural defects . . . that can cast doubt on the factfinding process 
and the presiding judge's exercise of discretion during trial.'' Hamdan 
v. Rumsfeld, 26 S.Ct. 2749, 2807 (2006) (Kennedy, J. concurring). 
Moreover, if the military trial system is struck down or modified by 
the courts after conviction, individuals would face retrial after 
having previewed their defense for the prosecution. The administration 
has already afforded itself a lopsided advantage in preparing evidence 
for the trials of suspected terrorists ,with limited rules for 
disclosure and review. A system where defects are remedied only by 
retrial exacerbates the asymmetry.
    Fourth, the DTA cuts out the most relevant military court--the 
USCAAF. In 1975, the Supreme Court in the Councilman decision looked to 
this court as providing a crucial degree of independence from the 
executive in the military justice system. It is a court that is the 
envy of the world, with specialized expertise in military matters. 
Given the fact that the administration is saying that the civilian 
justice system is not appropriate to try suspected terrorists, one 
would think that the existing military appellate court, the USCAAF, is 
far better suited to hear these cases than the civilian U.S. Court of 
Appeals for the District of Columbia Circuit. Decisions from this 
regular military appellate court may also be subject to more deference 
in the Supreme Court than the DC Circuit.
    Mr. Schlueter. I believe that the appellate procedure set out in 
the DTA, for final decisions by the DC Circuit Court, is sufficient to 
comply with Common Article 3. As I understand the general scope of 
Common Article 3, that provision provides the signatory states with 
some flexibility in the ways in which they provide basic due process to 
those who are tried in that state's courts. In this instance, the 
provision provides for ``civilian'' review of the decisions, and that 
in the minds of many in the public is a desirable procedure.
    Mr. Silliman. No, I don't think it does because it excludes from 
the nondiscretionary grant of review anyone convicted by a military 
commission who receives a sentence of less than 10 years; and Common 
Article 3 makes no distinction based upon quantum of sentence. Further, 
the scope of review is merely procedural (``whether the final decision 
was consistent with the standards and procedures specified in the 
military order. . .''). I'm not sure that I interpret the second clause 
(section 1005(e)(3)(D)(ii) as enlarging that limited scope (``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 is consistent with the Constitution and law of the United 
States'').

    2. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr. 
Silliman, what changes in appellate procedure, if any, would you 
recommend?
    Mr. Fidell. National Institute of Military Justice (NIMJ) 
recommends that direct appellate review of military commissions be 
vested in the USCAAF, and that the contrary DTA provision be repealed. 
We also believe Congress can properly dispense with intermediate review 
by a Service Court of Criminal Appeals (CCA). However, USCAAF should 
have plenary review power akin to that exercised by the CCAs, so that 
it can review findings for proof beyond a reasonable doubt and 
sentences for appropriateness, as well as any legal issues that may be 
presented. There is certainly no need for a ``review panel'' or ``Court 
of Military Commission Review.''
    Mr. Katyal. As I testified before the committee, the single most 
important decision Congress must make if they adopt military-commission 
legislation is to craft an ``anti-abstention provision.'' This would 
create an expedited review process, modeled on by the Bipartisan 
Campaign Finance Reform Act (McCain-Feingold), and would protect the 
rights of both sides in what is likely to be an unprecedented new trial 
system. Challenges would go first to a three-judge district court, with 
immediate certiorari in the Supreme Court. Federal courts must play 
their role at the outset in order to avoid the trauma to the Nation of 
potentially having convicted terrorists set free, and to protect the 
minimal trial rights of defendants consistent with constitutional and 
treaty-based obligations. See my prepared testimony at the July 19 
hearing (hereinafter ``SASC Testimony'') at pp. 13-14.
    Mr. Schlueter. I would not recommend any changes in the appellate 
procedure for reviewing convictions of those found guilty by military 
commission. I disagree with the view that those individuals should have 
their cases reviewed by the existing Service appellate courts (e.g., 
the Army Court of Criminal Appeals) and then the USCAAF. The appellate 
review in those courts can take several years. In fact the latter court 
recently adopted a series of rules to ensure that servicemembers 
receive timely appellate review of their courts-martial convictions. In 
a series of cases, the military courts have had to deal with post-trial 
delays spreading out over as much as 4 years.
    In the case of appellate review of convictions by military 
commissions, it is critical that procedure be efficient and swift. If 
military courts were to have jurisdiction, if there were attempts to 
expedite those cases, and not those of American servicemembers, in 
effect the detainees would receive favored treatment.
    Mr. Silliman. I would recommend that appeals from convictions by 
military commissions be heard in the USCAAF, rather than in the United 
States Court of Appeals for the District of Columbia. The USCAAF is an 
Article I court, created by Congress in 1950 as part of the Uniformed 
Court of Military Justice (UCMJ) to hear appeals of courts-martial from 
all the Services, and is well versed in military justice issues.

                           war crimes statue

    3. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, in 
light of the Court's Common Article 3 holding, does Congress need to 
amend the War Crimes Statute (18. U.S.C. 2441) to ensure military 
interrogators are protected from criminal liability as they perform 
their duties?
    Mr. Katyal. A statute that would grant immunity for violations of 
Common Article 3 would be a gross violation of our treaty obligations, 
as well as customary international law. Although Congress has the power 
to make such an amendment, it would come at great political cost and 
would not protect military interrogators from prosecution abroad. Under 
the principle of ``universality,'' courts abroad may exert jurisdiction 
over any defendant charged with war crimes that they are able to take 
into custody. In additional to foreign national courts, the founding 
charters of numerous international tribunals, including the 
International Criminal Court, expressly recognize violations of Common 
Article 3 as war crimes.
    Before accepting any claim that the executive branch ``needs'' a 
``fix'' to either the War Crimes Act or Common Article 3, Congress 
should understand what the executive's implementing rules are with 
respect to these laws. For example, the executive branch has the power 
under Article 2 of the Constitution to ``take care'' that the laws are 
faithfully executed--which means that it wields the prosecution power. 
I would imagine that this power would fairly include the ability to 
decline to prosecute any and all War Crimes Act violations in a given 
category of cases. If so, it is not clear what purpose, if any, would 
be served by legislating an exemption or clarification of the existing 
act. I believe that it is absolutely essential that Congress inquire as 
to whether the administration believes that its Article 2 prosecution 
power gives it the ability to decline to prosecute cases prior to 
government activity that might otherwise violate the statute. I also 
think it imperative that the committee ask the executive for any and 
all memoranda of understanding or other agreements, both formal and 
informal, between the Department of Justice (DOJ) and other Government 
agencies with respect to prosecution under the War Crimes Act and 
violations of the Geneva Conventions. If such documents or agreements 
exist, they will be the most useful materials in deciding whether any 
legislation in this area is necessary or appropriate.
    Mr. Schlueter. Although the Court in Hamdan indicated that Common 
Article 3 is binding law, it is difficult to say how the Court would 
interpret individual provisions in other cases. Nonetheless, it would 
seem prudent to enact legislation to protect servicemembers, to guard 
against an adverse future opinion from the Supreme Court.
    Mr. Silliman. No. First of all, there is a memorandum of 
understanding between the Departments of Justice and Defense whereby it 
is agreed that American soldiers are to be tried in military courts 
rather than Federal Court for any charges arising from their conduct in 
the field which constitutes an alleged violation of both the U.S. Code 
and the UCMJ. Any possible allegation of a violation of Common Article 
3 would also surely constitute an allegation of misconduct under the 
UCMJ. Also, testimony before this committee by the Judge Advocates 
General (JAG) confirms that military personnel are trained to the 
standards set forth in Common Article 3. Thus, I see no reasons why 18 
U.S.C. 2441 needs to be amended.

                           geneva conventions

    4. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, in 
your opinion, do the 1949 Geneva Conventions represent the present 
state of customary international law with respect to armed conflict?
    Mr. Katyal. Yes. Both Congress and the Supreme Court, most recently 
in Hamdi v. Rumsfeld, have recognized the Geneva Conventions as a 
codification of the law of war. See 18 U.S.C.  2441(c)(1) (2003) 
(defining violations of the law of war as breaches of the Hague or 
Geneva Conventions); Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2641 (2004). 
Congress also considers Common Article 3 an essential element of the 
law of war, as reflected in the War Crimes Act.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. Yes, they do.

    5. Senator Warner. Mr. Katyal, Mr. Schlueter, and Mr. Silliman, has 
additional Protocol I of 1977, which the United States refused to 
ratify, become part of customary international law?
    Mr. Katyal. Yes. The United States Government has adhered to the 
view that Protocol I constitutes customary international law. See, 
e.g., Brief of Retired Generals and Admirals in Support of Petitioner, 
Hamdan v. Rumsfeld, at 20. In Hamdan, the plurality stated that the 
term ``regularly constituted court'' must be understood to incorporate 
at a minimum the trial protections recognized by customary 
international law as embodied in Article 75 of Protocol I. See 126 
S.Ct. at 2797. Several court decisions have held that violations of 
Protocol I are violations of Common Article 3. See Kadic v. Karadzic, 
70 F.3d 232, 242-43 (2d Cir. 1995); Mehinovic v. Vuckovic, 198 F. Supp. 
2d 1322, 1351 (N.D. Ga. 2002).
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. Many of the provisions of additional Protocol I are 
acknowledged by the State Department as customary international law, 
even though the United States has not ratified that Protocol. For 
example, Article 75, which gives us a clarification of what the 
``judicial guarantees'' are referred to in Common Article 3, is 
customary international law.

                         classified information

    6. Senator Warner. Mr. Fidell, Mr. Katyal, Mr. Schlueter, and Mr. 
Silliman, the present military commission rules allow the appointing 
authority of the presiding officer of a commission to exclude the 
accused and his civilian counsel from access to evidence during 
proceeding that these officials decide to close to protect classified 
information or for other named reasons. In your opinion, can a process 
that passes constitutional and statutory muster be constructed without 
giving the accused and counsel possessing the necessary clearances 
access to such material in some form?
    Mr. Fidell. NIMJ does not believe any person can properly be 
convicted of a criminal offense based on evidence that is not made 
available to the accused and his or her attorney. The current 
arrangement for classified information in courts-martial--Military Rule 
of Evidence 505--has been put to the test in numerous cases over the 
years. That procedure--under which the ``members'' of the court-martial 
never have access to information to which the accused is not also 
privy--is workable. There is no basis for applying a different approach 
in military commissions.
    Mr. Katyal. The court-martial process provides a clear model of how 
such a system would--and does--operate. If the accused at any stage of 
a military trial seeks classified information, the government may ask 
for an in camera (closed) proceeding to discuss the use of the 
information in trial. Mil. R. Evid. 505(i). During this session, the 
military judge hears arguments from both sides on whether disclosure 
``reasonably could be expected'' to harm national security prior to the 
accused or his lawyer being made privy to the classified information. 
Only ``relevant and necessary'' classified information to the 
prosecution's or accused's case can be made available. Mil. Rule Evid. 
505(i).
    Moreover, the military rules of evidence provide alternatives to 
disclosure of classified information, which include: redaction of the 
classified information; substitution of an unclassified description or 
summary of the classified information; substitution of a statement 
admitting the relevant facts the classified information would tend to 
prove; or full withholding of disclosure. Mil. R. Evid. 505(d),(g). 
Courts-martial also grant broad privileges for withholding information 
when it is ``detrimental to the public interest.'' Mil. R. Evid. 
506(a). My testimony addresses these and similar issues at great 
length, see pp. 7-11.
    The one thing that Federal courts have not accepted, as Senator 
Lindsey Graham has recently stated, is the exclusion of the defendant 
from his own criminal trial when he is not being disruptive. I was only 
able to find one example in American history when a defendant was 
excluded from a military commission in 1865, and that conviction was 
reversed by the JAG.
    Mr. Schlueter. Yes, I am confident that we can construct a 
procedure for balancing the need for national security and access by 
counsel and the accused and at the same time pass constitutional 
muster. It is important to note that the Court in constructing a 
majority vote in Hamdan, did not specifically rule that the accused's 
lack of access to classified information was in itself 
unconstitutional. It simply held that procedure, and others, appeared 
to be inconsistent with the UCMJ and the Manual for Courts-Martial, and 
that the President had not sufficiently explained the need for such 
variations.
    Mr. Silliman. Provision could be made for protecting highly 
classified national security information by preventing an accused from 
having direct access to it, as long as he is afforded access to 
unclassified summaries of that information if it is to be used against 
him. His military defense counsel, however, assuming he had the 
requisite security clearance, could not be denied access to the 
classified information itself. The Manual for Courts-Martial, in 
Military Rules of Evidence (MREs) 505 and 506, has provisions that 
mirror the Classified Information Procedures Act with regard to the use 
of classified information in a criminal trial, although these 
provisions normally apply to an accused's request to introduce 
classified information in his defense.

                            common article 3

    7. Senator Warner. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in your opinion, does the statuary prohibition on cruel, inhumane, and 
degrading treatment or punishment enacted last year constitute 
sufficient legal guidance to ensure compliance with Common Article 3?
    Ms. Massimino. No. The statutory prohibition on cruel, inhuman, or 
degrading treatment contained in the DTA was a necessary corrective to 
administration policies holding that: (1) the Geneva Conventions do not 
govern U.S. conduct in the current conflict; (2) interrogation 
techniques in violation of that standard and outside of the Army Field 
Manual on Intelligence Interrogations are authorized; and (3) the 
treaty obligation to refrain from cruel, inhuman, or degrading 
treatment does not bind the United States when it acted against aliens 
outside its territory. The DTA provides important legal guidance by 
requiring that all U.S. personnel--military and civilian--comply with 
the prohibition on cruel, inhuman, or degrading treatment, regardless 
of the location or legal status of those in their custody.
    The DTA does not, however, purport to address the full range of 
requirements set out in Common Article 3 of the Geneva Conventions. 
Common Article 3 prohibits cruel treatment and torture, as well as 
``outrages upon personal dignity, in particular humiliating and 
degrading treatment.'' While the administration now argues that the 
requirements of Common Article 3 are vague, that has not been the 
position of the United States military, now or in the past. To the 
contrary, the military has recognized and implemented its obligation to 
comply with Common Article 3 for more than 50 years. After the Supreme 
Court ruled in the Hamdan v. Rumsfeld case that the United States was 
bound by the requirements of Common Article 3 in the current conflict, 
Deputy Secretary of Defense Gordon England issued a directive restating 
the obligation to comply with Common Article 3 and finding that DOD 
policies and doctrine are all already in compliance with Common Article 
3. No further legal guidance is necessary in order to ensure compliance 
with Common Article 3.
    Ms. Newell Bierman. The DTA provided important legal guidance, 
reaffirming the U.S.'s commitment to humane treatment and making clear 
that the prohibition on cruel, inhuman, and degrading treatment governs 
all U.S. officials and agents, including CIA and civilian contractors.
    The U.S. military has considered itself bound by the principles of 
Common Article 3 in every conflict since the Geneva Conventions were 
ratified in 1949. The Department of Defense (DOD) Directive issued on 
July 7, 2006, by Gordon England restates DOD's obligation to comply 
with Common Article 3 and makes clear that DOD policies, directives, 
executive orders, and doctrine all already comply with the standards of 
Common Article 3. As Major General Scott C. Black, JAG of the Army, 
told the Senate Armed Service Committee the following week: ``[W]e've 
been training to [Common Article 3] and living to that standard since 
the beginning of our Army. We continue to do so.'' (7/13/06, SASC). The 
ranking JAGs of each of the other Armed Services agreed.
    The U.S. military has never asked for guidance or complained about 
the vagueness of the humane treatment principles embodied in Common 
Article 3 in any of the conflicts it has fought over the past 50 years. 
The lack of clarity in the current conflict came about because the 
administration suggested that the Geneva Conventions, including Common 
Article 3, did not apply. Reaffirming a standard the military knows 
well--the humane treatment standards of Common Article 3--would restore 
the clarity that has been lost. Congress should also exercise oversight 
to ensure that abuses like those that occurred at Abu Ghraib do not 
happen again, ensure that all those responsible for promoting abusive 
practices are held fully accountable, and require that the humane 
treatment requirements embodied in Common Article 3 and the DTA are 
fully respected and applied by every U.S. agency in every operation 
around the world.
    Mr. Fidell. The statutory prohibition on cruel, inhuman, and 
degrading treatment does not purport to address all of the requirements 
set forth in Common Article 3. Common Article 3 is no more vague than a 
number of punitive articles of the UCMJ that have been part of military 
law for decades and are generally recognized as providing fair notice 
of what conduct is proscribed. Examples include Article 88 
(contemptuous words), 89 (disrespect), 91 (contemptuous or 
disrespectful language or deportment), 92(3) (dereliction of duty, 
including duty imposed by custom of the service), 93 (cruelty, 
oppression, or maltreatment), 133 (conduct unbecoming an officer and a 
gentleman), and 134 (conduct that is prejudicial to good order and 
discipline or service-discrediting). Additional guidance can be 
provided in the Manual for Courts-Martial, but if that is done, it 
should be made clear that no inference arises that the law was too 
unclear to permit prosecution for misconduct (violations of Common 
Article 3) that occurred before the additional guidance was 
promulgated. It should be noted that United States practice is not to 
charge war crimes as offenses under the law of war, but rather as 
violations of the pertinent substantive punitive article, such as 
Article 118, which forbids murder.
    Mr. Mernin. No. The statutory prohibition on cruel, inhuman, and 
degrading treatment or punishment enacted last year, in its 
definitional section, articulates a more restricted definition of what 
treatment is prohibited than does Common Article 3. The baseline 
treatment standards of Common Article 3 have been incorporated in the 
training of U.S. Armed Forces for decades as a requirement of 
international law and the law of armed conflict, as a useful tool to 
inhibit sliding down a slippery slope of maltreatment, and as 
consistent with core military concepts of honor and reciprocity. While 
the New York City Bar Association (the ``Association'') praised, and 
continues to applaud, last year's statutory prohibitions set forth in 
the DTA, the act did not purport to incorporate or subsume the 
standards of Common Article 3. Moreover, the act's lack of an 
enforcement mechanism weakens its ability to contribute to or ensure 
compliance with Common Article 3. Finally, the Presidential signing 
statement which accompanied the act's becoming law, and reserved the 
right not to comply with the act in certain circumstances, also may 
undercut its effectiveness as ``sufficient legal guidance.''
    Dr. Carafano. Statutes by themselves rarely provide sufficient 
legal guidance. The President and military commanders need to be 
responsible for establishing doctrine, military regulations, and 
enforcement of expected behavior and treaty compliance.
    Mr. Katyal. Standing alone, the prohibition enacted by Congress 
last year, the ``McCain amendment,'' does not provide sufficient legal 
guidance. It has at its core a subjective test--the ``shocks the 
conscience'' standard for constitutional due process--that is vague and 
highly case specific. What gives that law practical content is the 
principle that its text must be read and enforced in a manner 
consistent with our international obligations, as Acting Assistant 
Attorney General Stephen Bradbury acknowledged in his testimony. See 
http://judiciary.senate.gov/testimony.cfm?id=757&wit--id=5505. Its 
provisions must prohibit, therefore, all conduct that would be 
prohibited under Common Article 3. While soldiers and military officers 
are quite familiar with these international standards, the 
administration, for its part, has protested that they are unclear and 
appears to have pursued policies that violate the Geneva Conventions, 
even if they do not directly violate the McCain amendment's narrower 
prohibition. In this sense, then, the McCain amendment has not provided 
clear legal guidance on compliance with Common Article 3. Now that the 
Hamdan decision has clarified that Common Article 3 applies to all 
conflicts, government actors cannot hide behind the literal language of 
the McCain amendment to immunize actions that violate the treaty. The 
military has developed its own system of guidelines and procedures 
evincing a comprehension and acceptance of the Geneva Conventions. In 
fact, each JAG testified before this committee that our troops train to 
these standards and that the Hamdan decision imposes no new 
requirements upon them. There is no reason to think that, now aware 
that the article applies, other government actors could not do the 
same.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. The prohibitions contained in the DTA are virtually 
identical to those in Common Article 3, except that where the statute 
refers to ``degrading treatment,'' the Convention's provision uses the 
enlarged phrase ``humiliating and degrading treatment.'' Both are 
similar in connotation and, if there is a difference, it is slight. 
Therefore, I think the statutory prohibition does generally provide 
sufficient legal guidance for our Armed Forces personnel. Remember that 
the JAGs, in their testimony before you, acknowledged that Common 
Article 3 is the standard to which we normally train our Service 
personnel. Thus, Army Field Manuals, such as the one on accepted 
interrogation techniques, give clarity to what is, and what is not, 
permissible without being ``cruel, inhuman, or degrading treatment or 
punishment'' and, by extension, ``humiliating'' treatment as well.

    8. Senator Warner. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
would compliance with that statute constitute compliance with Common 
Article 3?
    Ms. Massimino. No. As noted in response to question 7, Common 
Article 3 encompasses a broader range of requirements than does the 
DTA. But even with respect to the common obligation to refrain from 
cruel treatment, the administration's interpretation of the DTA 
standard is such that the two standards cannot be equated. Common 
Article 3 has always been interpreted by the United States as imposing 
an absolute prohibition on inhumane treatment. Under the Common Article 
3 standard, interrogation techniques such as prolonged stress 
positions, waterboarding, heat injury or hypothermia, the use of dogs 
to terrify, and other such conduct would clearly be prohibited, 
regardless of the facts or circumstances surrounding the particular 
interrogation.
    In contrast, and despite the fact that Supreme Court jurisprudence 
holds that certain acts are inherently cruel, the administration has 
interpreted the DTA ``shocks the conscience'' standard as infinitely 
elastic. Under the administration's interpretation of this standard, 
conduct is permissible depending on the rationale for employing it. 
Thus, no technique would be absolutely prohibited if interrogators 
believed the information they sought was valuable enough to justify the 
abuse.
    For this reason, compliance with the DTA--which the administration 
has interpreted as a relative standard--would not constitute compliance 
with the absolute requirements of Common Article 3.
    Ms. Newell Bierman. Unfortunately, no--not if that statute is given 
the interpretation put forth by the Bush administration, in various 
legal opinions. Common Article 3 has always been interpreted as 
imposing an absolute prohibition on all inhumane conduct, drawing a 
clear line between prohibited and permissible conduct. We believe that 
this is precisely what Congress intended to do when it passed the DTA--
to forbid absolutely the kinds of abusive interrogation techniques we 
saw in Abu Ghraib.
    The Bush administration, however, has interpreted the DTA as 
imposing a relative standard, creating a sliding scale of prohibited 
treatment. Applying a ``shocks the conscience'' test, the 
administration claims that what ``shocks the conscience'' depends on 
the need. This means conduct that would--and should--be prohibited 
under an absolute bar on inhumane treatment, including techniques such 
as waterboarding, use of snarling dogs, and exposure to extreme hot and 
cold, might be allowed in certain situations if the interrogator or 
other official could explain a sufficiently important need. This 
appears to be the reason why the administration is asking Congress to 
interpret Common Article 3 by reference to the DTA.
    Given the administration's interpretation of the DTA, if Congress 
were to agree to this proposal, it would be seen around the world as 
the U.S. taking a ``reservation'' to the Geneva Conventions--attempting 
to unilaterally redefine its terms and limit its protections. No 
country in the world has ever before formally renounced its humane 
treatment requirements under Common Article 3 or suggested that the 
absolute prohibition on inhumane treatment should be replaced with a 
sliding scale. Such a step would send a message that America's enemies 
would all-too willingly amplify and mimic: that the United States 
affirmatively seeks to limit the scope of the humane treatment 
requirements.
    Mr. Fidell. No. As noted in response to question 7, the McCain 
amendment does not purport to address all of the requirements of Common 
Article 3.
    Mr. Mernin. No. As set forth above, the statute is by its terms not 
referable to Common Article 3. A number of commentators have offered 
examples of the potential different treatment standards reflected in 
the two sources. Before a statutory departure from Common Article 3 is 
undertaken, it should first take into account the opinion of the JAG 
testimony concerning the U.S. Armed Forces' teaching, training, and 
application of the Geneva Conventions, including Article 3.
    Dr. Carafano. Most likely, unless the statute or Common Article 3 
are misconstrued as they were in the Hamdan decision.
    Mr. Katyal. No. The McCain amendment's literal prohibition is 
significantly narrower than that of Common Article 3. The standard it 
applies is that of the Federal constitution's ban on cruel and unusual 
punishment. The test is whether the conduct ``shocks the conscience.'' 
As this standard has been applied, the reasons for the conduct are 
relevant to the determination of its legality. A finding of some 
particularly heightened security need, for example, could justify 
otherwise ``conscience-shocking'' treatment of prisoners.
    By contrast, Common Article 3 also prohibits conduct constituting 
``outrages upon personal dignity, in particular humiliating and 
degrading treatment.'' It does not require any physical harm and does 
not balance the severity of the conduct against its rationale.
    It's easy to see where these two standards would diverge. Imagine 
the CIA has been ``water-boarding'' a suspected al Qaeda operative. 
Under the McCain amendment's standard, such a practice may well be 
legal. It might be justified by the exigency of the situation, by the 
rank of the prisoner, or by his access to information. Moreover, this 
conduct may not count as ``torture'' under other domestic statutes if 
it does not cause prolonged physical suffering. Under Common Article 3, 
however, such a practice may well qualify as the kind of ``outrage on 
personal dignity'' that is prohibited in all situations.
    Compliance with the McCain amendment will only constitute 
compliance with Common Article 3 if the constitutional standard is 
understood to be identical to that of the treaty.
    To the extent any legislation that abrogates our Geneva Convention 
obligations is being contemplated, it deserves the most careful and 
informed attention by Congress, following the submission of enough 
intelligence information to make sure that such a step is absolutely 
necessary. It must take place only after a sober and careful analysis, 
and not be the product of a rush to legislate.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. Yes, with regard to treatment of detainees, because I 
see little difference in scope of coverage between ``cruel treatment'' 
and ``humiliating and degrading treatment'', as used in Common Article 
3; and ``cruel, inhuman, or degrading treatment or punishment'' in the 
DTA.
                                 ______
                                 
               Questions Submitted by Senator John McCain

                            common article 3

    9. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
the Supreme Court found that Geneva Common Article 3, which bars cruel 
and humiliating treatment, including outrages upon personal dignity, 
applies to al Qaeda. In response, some have argued that the terms 
included in Common Article 3 are vague and undefined in law of war 
doctrine. In Tuesday's Senate Judiciary Committee hearing, for example, 
the head of the DOJ's Office of Legal Counsel said that some of the 
terms are ``inherently vague.'' Is this your understanding?
    Ms. Massimino. No. The terms in Common Article 3 are not inherently 
or otherwise vague. If the DOJ's Office of Legal Counsel finds the 
terms of Common Article 3 to be vague, perhaps they should talk to the 
military, to whom the meaning and requirements of Common Article 3 are 
clear. As the senior serving JAGs recently testified, our Armed Forces 
have trained to Common Article 3 and can live within its requirements 
while effectively defending our Nation. The military has more than 50 
years of experience training to and applying this standard. They have 
not complained of its vagueness; rather, they have always argued for 
the broadest interpretation of the standard, recognizing the importance 
to the safety of our own troops of preserving the integrity of Common 
Article 3. Moreover, as evidenced by Secretary England's July 6, 2006, 
directive, the DOD's understanding of Common Article 3 was not changed 
by the recent Hamdan decision.
    Ms. Newell Bierman. As stated in the answer to question 7, the 
military has long understood, trained to, and applied the humane 
treatment requirements of Common Article 3, without ever raising 
concerns about its vagueness. The DOD Directive issued on July 7, 2006, 
by Gordon England restates DOD's obligation to comply with Common 
Article 3 and affirms that DOD policies, directives, executive orders, 
and doctrine all already comply with the standards of Common Article 3. 
The provisions of the Third and Fourth Geneva Conventions--including 
Common Article 3--are incorporated as required conduct for the armed 
services in Army Regulation 190-8, Enemy Prisoners of War, Retained 
Personnel, Civilian Internees and other Detainees, and similar 
regulations for other Services. As Major General Scott C. Black, JAG of 
the Army, told the Senate Armed Service Committee the following week: 
``[W]e've been training to [Common Article 3] and living to that 
standard since the beginning of our Army. We continue to do so.'' (7/
13/06, SASC). The ranking JAGs of each of the other armed services 
agreed. As these military leaders make clear, the standards of Common 
Article 3 have long been deemed sufficiently clear for the military to 
mandate, teach, and apply. No more vague than other guiding principles, 
the standards of Common Article 3 have been given concrete meaning 
through usage over time.
    Mr. Fidell. No. As indicated in response to question 7, some of the 
prohibitions of Common Article 3 are no more vague than a variety of 
existing punitive articles in the UCMJ that have withstood judicial 
scrutiny for many years.
    Mr. Mernin. No. Common Article 3 has provided a useful framework 
for decades, and should not be discarded based upon a facile claim of 
vagueness. The cited testimony focused on the ban of ``outrages upon 
personal dignity, in particular humiliating and degrading treatment'' 
as inherently vague. The Association respectfully disagrees. Common 
Article 3 has been interpreted and followed by our Armed Forces for 
decades and to discard this well-regarded, clear legal standard--for 
the sake of expediency in establishing rules which will only apply to a 
handful of detainees--would be a grave mistake. By its terms, the 
subject provision accommodates the notion that there might be instances 
of ``humiliating and degrading treatment'' which do not rise to the 
level of ``outrages upon personal dignity.'' As an example, one can 
posit an instance of verbal ridicule that would constitute an instance 
of ``humiliating and degrading treatment.'' However, such an isolated 
event would not rise to the level of ``outrages upon personal 
dignity.'' Requiring a modicum of interpretation does not make a 
standard inherently vague.
    Mr. Carafano. Yes. For example, the phrase contained in Common 
Article 3 that treatment of detailees should prohibit ``the passing of 
sentences and the carrying out of executions without previous judgment 
pronounced by a regularly constituted court, affording all the judicial 
guarantees which are recognized as indispensable by civilized peoples'' 
is vague. To comply with this section, it will require some due 
process, but what that due process should look like is hardly agreed 
upon by all ``civilized peoples,'' nor is it even agreed upon who 
constitutes the body of civilized peoples. Nine justices of our Supreme 
Court also disagreed sharply on what a ``regularly'' constituted court 
was. Some ambiguity was intended by the drafters, which is one reason 
Congress attempted to remove jurisdiction from the Federal courts, 
which tend to establish fixed meanings that are too inflexible.
    Mr. Katyal. The ``vagueness'' of Common Article 3 has never, until 
now, impeded American military operations. It has never even been 
raised as an issue, even though American interrogators and soldiers 
have been subject to its requirements under the War Crimes Act since 
that law was passed almost 9 years ago. For decades the military has 
trained its soldiers to comply with a standard that goes well beyond 
what the Geneva Conventions, including Common Article 3, require. 
Further, the Government has itself asserted that the DOD has heretofore 
been in full compliance with the Geneva Conventions in its conduct of 
the global war on terror. By the administration's own admission, the 
military has always known how to comply--rendering their claim of 
vagueness nonsensical.
    In reality, the vagueness argument is simply another step in an 
elaborate dance to protect non-complying parties from prosecution. If 
the United States wants to insulate such conduct, we should do so only 
after carefully assessing the costs to the international reputation of 
the United States and the impact of such a decision on our troops. 
Please also see my answer to question 8, above.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. First of all, I do not read the Supreme Court's 
opinion in Hamdan v. Rumsfeld as ruling that our treatment of al Qaeda 
detainees, apart from our use of military commissions to prosecute 
them, must comply with Common Article 3. That was a clear implication 
flowing from the ruling, but the Court did not make that holding. That 
is an issue for another day. In that regard, I believe the memorandum 
issued by the Deputy Secretary of Defense on July 7 regarding to 
application of Common Article 3 to those being held by DOD personnel is 
a good policy decision, but not one specifically mandated by the 
Court's ruling in Hamdan.
    Having said that, let me now address the substance of your 
question. I disagree with Mr. Bradbury's testimony in the Senate 
Judiciary Committee that the terms of Common Article 3 are ``inherently 
vague.'' As I said in response to a question from the Chairman, it has 
been acknowledged by the JAG that we train our Armed Forces to the 
Common Article 3 standard, and in our training manuals and other 
materials we distribute to our Service personnel, we give definition 
and clarity to the terms used in the article.

    10. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
is there a body of opinion that defines Common Article 3?
    Ms. Massimino. Yes. The provisions in Common Article 3 are defined 
by U.S. case law in relation to the Alien Tort Statute and the Torture 
Victims Protection Act, such as Kadic v. Karadzic, 70 F.3d. 232 (2d 
Cir. 1995). Common Article 3 is also defined by international 
commentaries, such as the International Committee of the Red Cross 
(ICRC), and a well-developed body of international case law from 
international tribunals to which administration witnesses have referred 
to as a source for guidance on procedure and rules. As I noted in my 
testimony, the International Criminal Tribunal for the Former 
Yugoslavia (ICTY), for example, has said that ``cruel treatment 
constitutes an intentional act or omission, that is, an act which, 
judged objectively, is deliberate and not accidental, which causes 
serious mental or physical suffering or injury or constitutes a serious 
attack on human dignity.'' Prosecutor v. Delalic, Case No. IT-96-21-T 
(Nov. 16, 1998) at para. 552. The ICTY similarly held that an outrage 
upon personal dignity is an act that causes ``serious humiliation or 
degradation to the victim,'' and requires humiliation to be ``so 
intense that the reasonable person would be outraged.'' Prosecutor v. 
Aleksovski, Case No. IT-95-14/1-T (June 25, 1999) at para. 56. 
According to that international tribunal, a perpetrator must have acted 
(or failed to act) deliberately and must have been able to perceive his 
suffering to be the ``foreseeable and reasonable consequences of his 
actions.'' Id. These formulations are very similar to the way in which 
offenses are defined under U.S. criminal law.
    Ms. Newell Bierman. Yes. There is a well-defined body of law, based 
on U.S. legal opinions, ICRC commentary and jurisprudence from 
international criminal tribunals that defines the nature and scope of 
the obligations under Common Article 3. U.S. courts have interpreted 
Common Article 3 in the context of civil litigation brought against 
human rights abusers under the Alien Tort Claims Act. In Kadic v. 
Karadic, 70 3d 232 (2d Cir. 1995), for example, the Second Circuit 
applied the law of Common Article 3 to conclude that the ``offenses 
alleged by the appellants''--rape, torture, summary execution--``would 
violate the most fundamental norms of the law of war embodied in Common 
Article 3.'' Id. at 243. International criminal tribunals, and 
commentators, particularly the ICRC have also defined the scope of 
Common Article 3. The ICRC commentaries have defined the humane 
treatment standards of Common Article 3 as ``concern[ing] acts which 
world public opinion finds particularly revolting--acts which were 
committed frequently during World War II.'' The case law of the ICTY 
and the International Criminal Tribunal for Rwanda (ICTR) also provides 
useful guidance on the definition of a Common Article 3 crime. In 
examining offenses of either cruel treatment or outrages upon personal 
dignity, the tribunals have made clear that the humiliation suffered 
must be real and serious and must be so intense that the reasonable 
person would be outraged and have consistently limited individual 
criminal liability to serious violations of the humane treatment 
standards of Common Article 3. The statute for the International 
Criminal Court (ICC) in Article 82(c) defines war crimes as serious 
violations of Common Article 3, and the ICTY has said that serious 
violations of Common Article 3 are prosecutable as war crimes. Kunarac 
(Appeals Chamber), June 12, 2002, para. 68. The Court has also 
repeatedly set the standard that for a breach of IHL to be a war crime 
the ``violation must be serious . . . it must constitute a breach of a 
rule protecting important values, and the breach must involve grave 
consequences for the victim.'' Tadic, (Appeals Chamber), Decision on 
the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 
1995.
    Mr. Fidell. There is a substantial literature on Common Article 3, 
including instructional materials generated by the Armed Forces. In 
1960 the ICRC published a definitive commentary on all of the Geneva 
Conventions, commonly known as ``Pictet,'' after its overall editor, 
Jean S. Pictet.
    Mr. Mernin. Yes. The authoritative ICRC Commentary, edited by Jean 
S. Pictet, was published in 1958. In addition, a number of U.S. courts 
(see, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), courts of 
other nations, and international criminal tribunals have rendered 
decisions concerning or applying Common Article 3. An accessible 
standard of what constitutes a violation of the article has developed 
in this body of case law.
    Dr. Carafano. Not in any final way, nor should there be. In 
international relations, sovereign states must take responsibility for 
their own treaty interpretations.
    Mr. Katyal. The requirements and purposes of Common Article 3 have 
been taken up by U.S. domestic courts in the context of civil 
litigation under the Alien Tort Statute and the Torture Victims 
Protection Act, international criminal tribunals, and commentators, 
particularly the ICRC. Most notably, the Second Circuit Court of 
Appeals applied the law of Common Article 3 in Kadic v. Karadzic, 70 
F.3d.232 (2d Cir. 1995). The UCMJ, and interpretations of it, are also 
relevant to defining Common Article 3 because, as Hamdan reaffirms, the 
UCMJ codifies the laws of war. Moreover, the military's long tradition 
of training soldiers in the proper treatment of prisoners of war, and 
its longstanding regulations, should also be treated as a relevant 
source of interpretive guidance.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. There is a body of opinion comprised of customary 
international law, treatises, other scholarly writings, and even 
military training manuals from the United States and other countries 
which clarifies what is required to fulfill the requirements of Common 
Article 3.

    11. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
does the vagueness of these terms require a change in America's 
relationship to the Geneva Conventions?
    Ms. Massimino. No. Our relationship to the Geneva Conventions need 
not and should not change. The U.S. military has abided by the Geneva 
Conventions since they were ratified in 1949 and has consistently--
until now--maintained that the standards of conduct required by the 
Conventions are clear. It would not be in the U.S. national interest to 
deviate from this position now. The United States has greater exposure 
militarily than any other nation, and thus has the greatest stake in 
reinforcing the reciprocal nature of the Geneva Conventions. Moreover, 
a change in America's relationship to the Geneva Conventions would be 
perceived around the world not only as a breach of our treaty 
obligations, but as a lack of support for human rights and the rule of 
law.
    Ms. Newell Bierman. Absolutely not. The U.S. has endorsed, upheld, 
and promoted the humane treatment standards embodied in Geneva since it 
was ratified in 1949. As explained in the answers to questions 7 and 9, 
the U.S. military has long trained to and sought to apply these 
standards without any complaints about vagueness. Any attempt to 
redefine the United States' relationship with Geneva will undoubtedly 
be seen as the U.S. attempting to unilaterally redefine its terms and 
limit its protections. No country in the world has ever before formally 
renounced or sought to define away its humane treatment and fair trial 
obligations under Common Article 3. Such a step would send a message 
that America's enemies would all-too willingly amplify and mimic: that 
the United States affirmatively seeks to limit the scope of the humane 
treatment requirements. Carving out exceptions now would set a 
dangerous precedent, undermining humane treatment standards that 
protect U.S. soldiers if captured by the enemy in future conflicts.
    Put another way, the costs of any change would be great and the 
benefits few to none. When Senator Graham asked the ranking JAGs of 
each of the armed services at the July 13 hearing before this 
committee, ``Can we win the war and still live within Common Article 
3?,'' all answered with an unequivocal ``yes.'' Former JAG of the Navy, 
Rear Admiral John Hutson added: ``In fact, I'd turn it around. I don't 
think we can win the war unless we live within Common Article 3.'' (7/
13, SASC Hearing).
    Mr. Fidell. No. The Geneva Conventions were negotiated over 50 
years ago and the War Crimes Act, which refers to Common Article 3, 18 
U.S.C.  2441(c)(3), was enacted 10 years ago. It's a little late to 
claim that Common Article 3 is too vague.
    Mr. Mernin. No. As set forth above, the Association disagrees with 
the premise that the referenced terms are vague. The treatment 
standards of Common Article 3 have formed an integral part of our 
Nation's Armed Forces' overall training and application with respect to 
detention and interrogation for decades. To whittle away at these 
respected and tested norms, for the sake of expediency, would send the 
wrong message to our troops, our enemies, our allies, and to the world.
    Dr. Carafano. No. The parties to the Convention intended some 
ambiguities and papered over others. That is true of most treaties, and 
we do not ``change our relationship'' to them.
    Mr. Katyal. Not in the least. American officials and soldiers have 
long demonstrated both the capacity and the willingness to abide by the 
Geneva Conventions, without complaint of vagueness or insufficient 
guidance. Further, the military is not arguing that deviations from the 
Geneva Conventions are required in order to successfully prosecute the 
war on terror. Disrupting the existing balance of domestic statutes, 
international law and judicial glosses on these sources of law in any 
way that reduces or eliminates our obligations under the treaty would 
be a violation of international law to a degree unprecedented in 
America's history. The government would forfeit America's status as the 
world's leading proponent of human rights. By even contemplating such a 
dramatic--and unnecessary--change, the government is in uncharted 
territory.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. Because I do not agree that the terms are 
``inherently vague,'' I see no need to modify our longstanding 
acceptance to be bound by the provisions of the Geneva Conventions.

    12. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
some have suggested that we put in statute that the prohibitions 
contained in Common Article 3 are identical to the prohibition against 
cruel, inhumane, and degrading treatment contained in last year's DTA. 
In that bill, we defined cruel, inhumane, and degrading treatment with 
reference to the 5th, 8th, and 14th amendments to the U.S. 
Constitution. Is this a good idea?
    Ms. Massimino. No. See responses to questions 7 and 8. Because of 
the way the administration has interpreted the DTA standard, were 
Congress to put in statute that the prohibitions contained in Common 
Article 3 are identical to the DTA, the result would be a weakening of 
the Common Article 3 standard. Common Article 3 has always been 
interpreted by the United States as imposing an absolute prohibition on 
inhumane treatment of prisoners. Thus, under the Common Article 3 
standard, subjecting prisoners to interrogation techniques such as 
prolonged stress positions, waterboarding, heat injury or hypothermia, 
and other such conduct would clearly be prohibited, regardless of the 
facts or circumstances surrounding the particular interrogation. The 
United States has in the past prosecuted foreign enemies for subjecting 
our personnel to such acts.
    In contrast, the administration has interpreted the DTA ``shocks 
the conscience'' standard to be ``flexible,'' so that abusive conduct 
may be permissible depending on the rationale for employing it. In Vice 
President Cheney's words, what shocks the conscience is ``really in the 
eye of the beholder.'' For this reason, legislating that compliance 
with the DTA constitutes compliance with the requirements of Common 
Article 3 would result in replacing an absolute standard with a 
relative one, thereby weakening the Geneva Conventions standard.
    Ms. Newell Bierman. Absolutely not. As explained in the answer to 
question 8, Common Article 3 has always been interpreted as imposing an 
absolute prohibition on all inhumane conduct, drawing a clear line 
between prohibited and permissible conduct. The DTA, in comparison, has 
been interpreted by this administration as imposing a relative 
standard, a sliding scale of prohibited treatment. Applying a ``shocks 
the conscience'' test, the administration claims that what ``shocks the 
conscience'' depends on the need.
    Some have suggested that defining the humane treatment standards of 
Common Article 3 in accordance with the DTA would add ``clarity'' to 
uncertain language in Common Article 3. But what is ``cruel, inhuman, 
and degrading'' is not inherently more ``clear'' than what is 
``humiliating and degrading.'' In contrast, an absolute standard--which 
establishes definitive boundaries between prohibited and approved 
conduct--is certainly clearer and easier to teach and train to than a 
standard which varies according to the circumstances. In fact, as both 
Gordon England's July 7 memo--and the statements of the JAGs have made 
clear--the military has long been teaching and training to the Common 
Article 3 standards. The military has never concluded that the standard 
was too unclear to teach, train to, and apply.
    Mr. Fidell. Reference to the 5th, 8th, and 14th Amendments was 
understandable in light of the United States position on the Convention 
Against Torture, but was not necessarily a good idea since the Geneva 
Conventions ought to have a common meaning among nations, rather than 
one that varies from country to country.
    Mr. Mernin. No. The prohibitions are not identical, and the United 
States should not by such legislation water down or turn its back on 
its treaty obligations, nor by doing so encourage or credit another 
nation's unilateral effort to rewrite the meaning of Common Article 3's 
baseline safeguards. Nations need to be able to depend upon the uniform 
application of treaty provisions, or the provisions will over time lose 
their force.
    Dr. Carafano. Yes, it is better than most other alternatives, but 
only insofar as the reference to these constitutional amendments 
pertains to the definition of cruel, inhumane, and degrading treatment, 
and not to establishment of any sort of constitutional rights for 
detainees.
    Mr. Katyal. As I discussed above, the standard courts apply under 
those amendments is whether the conduct in question ``shocks the 
conscience.'' This constitutional test, while certainly more familiar 
to the courts than any new statutory language would have been, may not 
transfer so cleanly into the context of an international, largely 
secretive operation against high-level terrorists. First, the test is 
subjective--the reasons motivating the conduct are relevant to 
determining whether the conduct is constitutional. For example, 
punishment grossly disproportionate to the cause of deterring or 
punishing crime would violate the law. However, where the prisoner is a 
high-level member of al Qaeda, or has access to information, the 
``shocks the conscience'' standard may well permit conduct that is 
categorically prohibited by Common Article 3. There is simply no 
precedent for evaluating our constitutional standard under these 
circumstances. Second, because it is so subjective and case-specific, 
the standard in the DTA will put courts in a position of making policy 
judgments about acts conducted on the ground by military and 
intelligence personnel. While the flexibility of the DTA standard gives 
power to the courts to use their discretion, the balancing they will be 
forced to do makes them more likely to abstain from judgment and allow 
violations of our international obligations to continue.
    Third, because the executive has asserted that those detained 
abroad have no constitutional rights, including under the 5th, 8th, and 
14th amendments, it is not clear that the language of the act protects 
detainees held outside of the United States at all.
    Mr. Schlueter. Yes, I believe that using the Constitutional 
standards, as interpreted by the United States courts is a prudent 
course.
    Mr. Silliman. The definition of ``cruel, inhuman, or degrading 
treatment or punishment'' in the DTA is obviously modeled after the 
Senate's definition in its formal ``understanding'' of the phrase 
``cruel, inhuman, or degrading treatment of punishment'' as used in 
Article 16 of the 1984 Convention Against Torture. Even though Common 
Article 3 has a difference in wording (using the phrase ``humiliating 
and degrading treatment'' rather than simply ``degrading treatment'' as 
in the statute), because the difference in connotation is slight, I do 
not believe that reference to 5th, 8th, or 14th amendment standards 
would necessarily be inappropriate.

    13. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
what are the implications of our redefining Common Article 3 in this 
way?
    Ms. Massimino. See response to question 12. The implications of our 
redefining Common Article 3 by equating it with the DTA standard would 
be serious. First, it could result in implicitly authorizing for U.S. 
personnel acts which the rest of the world rightly views and would 
treat as war crimes. Second, it risks undermining the core Geneva 
Conventions standard of humane treatment on which our own personnel 
rely.
    Forty-nine retired military leaders recently wrote a letter to this 
committee about the prospect of the United States redefining Common 
Article 3 in this way. In their view, ``were we to take this step, we 
would be viewed by the rest of the world as having formally renounced 
the clear strictures of the Geneva Conventions. Our enemies would be 
encouraged to interpret the Conventions in their own way as well, 
placing our troops in jeopardy in future conflicts. American moral 
authority in the war would be further damaged.''
    Ms. Newell Bierman. See answers to questions 8 and 11.
    Mr. Fidell. Adoption of a narrow reading of Common Article 3 has at 
least four intolerable consequences. First, it destroys any chance for 
a common, universal understanding of the meaning of these treaties. 
Second, to the extent that the definition does not address parts of 
Common Article 3, it leaves those provisions in limbo as a matter of 
United States law. Third, it potentially could serve as the basis for 
undeserved immunity on the part of United States military and civilian 
personnel who have previously violated Common Article 3. Finally, it 
would deprive our country of the right to object to abusive treatment 
of our personnel who fall into others' hands.
    Mr. Mernin. As alluded to in response to question 12, such a 
redefinition would open the door for our enemies to mistreat American 
captives yet still claim, behind a curtain of deceptive logic, that 
their actions were consistent with their interpretation of Common 
Article 3. Moreover, JAG testimony to this Committee and the Judiciary 
Committee has made clear that there is neither a need, nor desire 
within the armed services, to depart from the Common Article 3 
standards which have been taught, trained to, and applied for decades.
    Dr. Carafano. If Congress chose to do so, the Court ought to uphold 
its action. The only consequence might be that our treaty partners 
argue we are not in compliance with our treaty obligations.
    Mr. Katyal. First, it would immediately stop some extreme 
procedures--such as waterboarding. Even the CIA's Inspector General has 
evidently conceded that such procedures shock the conscience.
    Distressingly, however, several large loopholes will persist under 
the DTA's standard. To the extent that the ``shocks the conscience'' 
test would still permit conduct that Common Article 3 would prohibit, 
such as the elimination of fair trial rights, the statute would violate 
the Geneva Conventions.
    Mr. Schlueter. I do not have sufficient experience or knowledge in 
this area--international law--to be able to give you an informed 
answer.
    Mr. Silliman. This would provide a statutory definition as to what 
might constitute a violation of Common Article 3 for domestic purposes, 
but it would not bind either an international tribunal or the courts of 
other countries on how they might rule on what constitutes a violation 
of that article of the Conventions.

                      how congress should proceed
    14. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, and Mr. Schlueter, in Mr. 
Silliman's prepared testimony, he stated his view that, as a matter of 
domestic law, Congress could restrict the application of Common Article 
3, but that doing so might not pass judicial muster and would invite 
additional litigation and more years of legal uncertainty. Could you 
explain to us why the Supreme Court might not uphold such legislation 
as Professor Silliman suggests?
    Ms. Massimino. Congress has the constitutional authority to pass a 
law that is in conflict with a treaty ratified by the United States. 
However, passage of a law restricting the application of Common Article 
3 would be a serious breach of our international legal obligations and 
would likely be viewed by all other nations as a material breach of the 
Geneva Conventions as a whole. As such, the courts certainly could find 
it highly suspect, and indeed might overturn the law, particularly if 
there was any doubt about whether Congress intended to put the United 
States in breach of its international legal obligations.
    Ms. Newell Bierman. When the United States affirmed and ratified 
the Geneva Conventions in 1949, it committed to applying the humane 
treatment and fair justice requirements of Common Article 3. Common 
Article 3 is part of customary international law. Kunarc (Appeals 
Chamber) June 12, 2002, para. 68. The legislative authorization of 
military commissions that fail to meet the fair justice requirements of 
Common Article 3 would put the United States out of compliance with its 
treaty obligations and would be illegal under a set of core customary 
international law norms.
    Mr. Fidell. We agree that Congress could restrict the application 
of Common Article 3, but doing so would constitute a de facto 
repudiation of the Geneva Conventions, which would be wrong and 
seriously endanger United States personnel abroad. We defer to 
Professor Silliman as to whether the Supreme Court would sustain 
legislation that restricted the application of Common Article 3, 
especially if Congress's intent to do so was unmistakable.
    Mr. Mernin. With respect to whether the Supreme Court would sustain 
such a legislative maneuver, the Court could well find that any 
material departure from the Common Article 3 treatment standards 
impermissibly violated the law of armed conflict. The Court stated: 
``Common Article 3 then, is applicable here and, as indicated above, 
requires that Hamdan be tried by a `regularly constituted court 
affording all the judicial guarantees which are recognized as 
indispensable by civilized peoples'.'' Although legislation which 
attempted to restrict the application of Common Article 3 would be 
possible, any step which sought to roll back the explicit guarantees of 
Geneva, on the heels of the Hamdan decision and in the context of the 
message the DTA sought to convey, would constitute an ill-advised 
effort to circumvent the U.S. military's experience-driven policy and 
practice. In this and future conflicts, our troops are the ones most at 
risk of capture, and our detainee policies have always been premised, 
in significant part, on the encouragement of reciprocity in the 
treatment of our captured troops. We should never take steps which 
heighten the risk of maltreatment of our troops without any 
demonstrable benefit.
    Dr. Carafano. If Congress chose to do so, the Court ought to uphold 
its action. The only consequence might be that our treaty partners 
argue we are not in compliance with our treaty obligations.
    Mr. Katyal. As a matter of domestic law alone, Congress has the 
power to pass such a law--though at great political cost, with severe 
legal consequences. Nevertheless, such legislation would violate 
international law that binds the United States. Any limit on the 
application of Common Article 3 would be a material breach of one of 
the United States' most important and longstanding treaty obligations. 
As I discussed in my testimony at page 16, Common Article 3 is 
considered a ``Convention in miniature'' because of the fundamental 
principles it embodies. Violating it would be considered a material 
breach of the Geneva Conventions as a whole. Moreover, as I mentioned 
above, the 1949 Geneva Conventions codify existing customary 
international law. Any statute that permits the violation of Common 
Article 3 would be illegal under this set of core international legal 
norms.
    Mr. Schlueter. The Supreme Court's general view is that in 
interpreting treaties and Federal legislation, the last in time will 
prevail--if there are any conflicts. Thus, if Congress were to enact 
legislation covering some of the same topics already covered in Common 
Article 3, Congress's last word on the topic would normally prevail. So 
it does not strike me that such legislation would necessarily be 
constitutionally suspect, or that even if it were, a majority of the 
court would strike down the Federal legislation.

    15. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, and Mr. Schlueter, could you also 
give a more detailed explanation of how such legislation would create 
more litigation and legal uncertainty?
    Ms. Massimino. Legislation that purports to restrict or redefine 
our obligations under Common Article 3 would certainly be challenged in 
the courts. To the extent that Congress establishes military 
commissions that infringe on the basic principles of fair justice 
described by the Supreme Court in Hamdan or authorizes conduct that 
would violate the Geneva Conventions, such challenges would have merit. 
In addition to legal challenges, however, legislation limiting the 
scope and meaning of Common Article 3 would create legal uncertainty, 
undermining the Pentagon's new rules on detainee treatment (which are 
grounded on the military's understanding of Common Article 3).
    Ms. Newell Bierman. The President authorized the use of military 
commissions in March 2002. For the past 4 years, the military 
commissions--rather than accused terrorists--have been on trial, and 
appropriately so. In Hamdan, the Supreme Court laid out basic 
principles of fair justice, none of which are reflected in the military 
commission rules: the tribunal must be fair and impartial; the accused 
has the right to be present at trial and provided all of the evidence 
presented to the factfinder; the accused cannot be convicted on the 
basis of unreliable evidence that he has not been able to confront, 
such as evidence obtained through torture; and the accused is entitled 
to an independent appeal of any finding of guilt. If Congress were to 
authorize commissions that violated these basic fair trial standards, 
it would undoubtedly lead to another round of litigation, thus delaying 
even longer the time when the United States holds accountable those who 
have committed war crimes.
    Mr. Fidell. Because the Supreme Court has not sought to answer 
questions not directly presented to it, in either Hamdan or Hamdi, a 
measure of uncertainty and additional litigation is inevitable. It 
might indeed have been preferable for the Court to have gone further in 
both of these decisions in providing a roadmap for Congress and the 
executive branch. However, the Court's reluctance to do so is consonant 
with its essentially conservative view of the judicial function in a 
democracy. Accordingly, additional litigation (and uncertainty until 
the litigation comes to an end) is inevitable. NIMJ does not agree that 
the prospect of additional litigation is in itself a reason for or 
against legislation. So long as our Nation adheres to its commitment to 
the rule of law and our civilian courts are open, Congress must assume 
that efforts will be made to seek judicial review of claims that 
constitutional and other rights have been violated. It is to be hoped 
that the Federal courts would address such claims on an expedited 
basis, but if fear of litigation were permitted to trump important 
rights and access to the courts, it would be a sad day for our country. 
Moreover, the Supreme Court has long made clear that executive branch 
action is most likely to be sustained when it is clearly supported by 
congressional action. Legislation clarifying what the President can and 
cannot do may produce litigation, but actions of the President that 
find support in congressional legislation are most likely to be 
sustained.
    Mr. Mernin. After Hamdan, any legislative response which restricts 
the application of Common Article 3 will invite further detainee 
litigation by detainees. First, whether Congress even has the ability 
to change the substantive law of war as to current detainees would be 
placed in issue. Second, the substantive arguments as to whether the 
newly legislated procedures satisfied our treaty obligations and 
constitutional standards, as set forth by the Hamdan court, would be at 
issue. Departing from the Common Article 3 standards would place an 
enormous burden on those we call upon to implement these policies, who 
would be compelled to maneuver in the grey area between the known 
Common Article 3 standards and the new legislative standards. Damage to 
the well-earned respect for the U.S. military legal system would be the 
worst result.
    Dr. Carafano. There are many lawyers looking for ways to defend 
their clients and/or cause trouble for the administration. Congress 
should not concern itself if there is more litigation (there will be), 
but only if such future litigation has merit.
    Mr. Katyal. If Congress were to authorize practices that violate 
international and domestic standards, it would run the risk of having 
the legislation invalidated. Those detained or interrogated by the 
United States would be able to raise legal claims based, first, on the 
violation of international law, and second, on the basis of American 
constitutional protections, whose violation might be inferred from the 
abandonment of these long-held standards for the treatment of 
prisoners. For example, imagine that Congress wrote a statute that said 
that the UCMJ does not incorporate Common Article 3, and therefore 
allows trials without the presence of the defendant or his counsel. We 
would see another round of litigation challenging, first, the denial of 
trial rights as a matter of our treaty obligations with or without an 
implementing statute; second, the legality of a statute that implicitly 
repealed the treaty obligation; and third, the constitutionality of the 
statute under the 5th amendment and other protections. Additionally, we 
could expect to see litigation in international tribunals and wrangling 
in the U.N. against the United States for rescinding a fundamental 
treaty obligation.
    Mr. Schlueter. If, as noted in the answer to question 14, above, 
Congress decided to enact legislation covering the same topics as those 
covered in Common Article 3, I cannot agree that it would necessarily 
generate any litigation that would not otherwise be generated by those 
arguing that a violation has occurred under Common Article 3. Even 
then, only persons with standing, to allege violations of such 
legislation would be able to initiate such litigation.

    16. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in his prepared testimony, Mr. Schlueter states that ``it is 
appropriate for Congress to map out only broad policy guidelines for 
implementing military commissions, and leave to the President and the 
DOD the task of more specifically setting out the procedures and rules 
to be used.'' Mr. Fidell from the NIMJ seems to agree with that 
approach. Could the panel address why Congress should set specifically 
the procedures and rules to be used for military commissions?
    Ms. Massimino. As stated in my testimony, before it launches into 
deliberations about which procedures should govern in military 
commissions, Congress should satisfy itself that commissions of any 
kind--as opposed to regular courts martial--are necessary to try those 
suspected of war crimes. But if it concludes that the courts martial 
system is insufficient, Congress should be extremely skeptical of 
proposals that would delegate the task of setting procedures and rules 
exclusively to the executive branch. While there is nothing inherently 
wrong with Congress setting broad policy guidelines and delegating the 
authority to set detailed rules to the executive branch, in this 
instance such delegation would be unwise. The administration has twice 
set rules and procedures for military commission that have failed to 
satisfy basic fair trial standards. The proposal it has now asks 
Congress to approve is similarly deficient. We see in the 
administration's current legislative proposal what kinds of rules it 
would likely establish under such delegated authority: an accused would 
be denied the right to be present at trial and provided all of the 
evidence that was obtained by unlawful coercion. A trial system 
operating under such rules would likely not survive judicial scrutiny 
and would likely be viewed as illegitimate by the rest of the world.
    Ms. Newell Bierman. There is nothing inherently wrong with 
legislation that sets policy guidelines and delegates decisionmaking 
regarding precise rules and procedures. But any delegation should be 
made to an independent body of experts, such as the current and former 
ranking JAGs, with the experience required to design rules that are 
both fair and lawful--and not to the President and DOD. The President 
and DOD have already proven far too willing to do away with basic fair 
trial standards to be entrusted with the responsibility of crafting 
commission rules and procedures. Twice, the administration crafted 
rules and procedures to govern military commissions--first in March 
2002, and then again in August 2005. Neither system withstood Supreme 
Court scrutiny. Now, rather than adapting in response to the Supreme 
Court decision, the administration has circulated a draft proposal that 
incorporates many of the same deficiencies of the earlier systems that 
were identified by the Supreme Court. At this point, the administration 
should not be entrusted with the task of designing a system that is 
sufficiently fair to pass judicial scrutiny.
    Mr. Fidell. The overall design of the UCMJ has long been for many 
details that might otherwise be enacted by Congress to be decided upon 
by the President instead. It would certainly be odd for Congress to go 
into more detail on procedures for trials of enemy combatants than it 
has for trials of our own personnel. As indicated in our prepared 
testimony and during the July 19, 2006 hearing, NIMJ believes that the 
President should have the power to depart, for military commissions, 
from a default model of general court-martial procedures, subject to 
substantial protections such as particularized statements of 
impracticability, reporting requirements, and meaningful judicial 
review. However, in light of the strong evidence of intransigence on 
the part of the executive branch in the weeks since the Supreme Court 
decided Hamdan, including claims of impracticability that are entirely 
lacking in substance, we have concluded that Congress should place some 
aspects of military commission procedure beyond the President's power--
i.e., in those respects he should not be permitted to depart from 
general court-martial procedures based on a claim of impracticability. 
We are developing a further revision of our proposal to reflect this.
    Mr. Mernin. The Association believes the suggestion that broad 
deference to the executive would now result in a satisfactory system is 
not supported by the public record. We applaud NIMJ's efforts and 
continue to study its revised proposal which uses as its starting point 
the UCMJ. The administration reportedly received and disregarded, or 
failed to credit, significant input as to methods to better structure 
the commissions. Accounts suggest that the experience and input of 
senior JAG officers was largely ignored in the commission rulemaking 
process. One would hope that the executive would now seek to establish 
commissions which satisfied the goals of security, credibility, and 
fairness. However, the evidence suggests that circumventing, rather 
than addressing, the substantive issues raised by the Hamdan decision 
may underlie the administration's efforts to respond.
    Mr. Carafano. It should not do so; nor should it attempt to 
micromanage other aspects of military intelligence and prosecution of 
the war.
    Mr. Katyal. As Justice Kennedy's concurrence reiterates, the 
President's actions are granted the highest degree of deference when 
they are consistent with, and authorized by, Congress. Giving the 
executive branch largely unfettered discretion in the fashioning of a 
new system creates a high risk that the President's actions will create 
procedures and standards far below what treaties require, what the 
Constitution requires, and what our existing laws require. Hamdan makes 
clear that a vague grant of authority, for example, the AUMF, which 
could theoretically authorize all sorts of executive actions, does not 
necessarily immunize all actions taken, allegedly, pursuant to it. 
Congressional authority insulates the President's actions from review 
only when it is specific, thoughtful, and the product of clear 
deliberation about the proper separation of power between the branches. 
If Congress were only to set out policy guidelines that are overbroad 
to the point of being meaningless, it would abdicate a critical role it 
plays in guaranteeing compliance with the Constitution and other laws. 
Moreover, Congress is fully capable of designing a fair, effective, and 
legal system for trying detainees on its own without deferring to the 
executive branch.
    Indeed, the executive branch cannot be relied upon to craft an 
adequate military commission system on its own. The executive branch 
has already attempted to design and implement two military commission 
systems--the one adopted by Military Commission Order No. 1 of March 
21, 2002, and the system of August 31, 2005. Neither withstood Supreme 
Court scrutiny. Despite the failings of the administration's 
commissions, executive branch officials initially asked Congress to 
simply ratify the August 31, 2005, commission system. The 
administration has since circulated a draft bill that is radically 
deficient in providing the necessary procedural protections to create a 
fair and reliable commission system. The administration's track record 
suggests that it is unwilling or unable to produce a commission system 
that would have the necessary fairness to produce reliable findings 
entitled to domestic and international legitimacy. Congress 
unquestionably has the constitutional authority to design any military 
commission system and should exercise such authority. Please also see 
my answer to question 18 below.
    Mr. Schlueter. As noted in the question, in my view Congress should 
leave to the executive branch the task of drafting specific rules and 
procedures. That is the model that has been used for decades in dealing 
with military justice issues and is appropriate for any procedural 
issues dealing with military commissions. The reason for that approach 
is that both Congress and the Supreme Court have recognized that in the 
area of military criminal justice procedures, the executive possesses 
the necessary expertise to draft those rules. A similar approach is 
used to draft the rules of procedure for Federal courts. That is, under 
the Rules Enabling Act, the judicial branch is charged with 
promulgating drafts of amendments to the Federal rules; those rules are 
transmitted to the Supreme Court, which approves them and forwards them 
to Congress. Absent any action by Congress, the amendments become 
effective on December 1 of the year the Supreme Court approved them.
    Given the controversial nature of any proposed rules for military 
commissions, a compromise might be to require that the executive report 
any such rules to Congress, which is charged under the Constitution 
with general oversight in this area.
    Mr. Silliman. I totally agree with the approach suggested by Mr. 
Schlueter and Mr. Fidell, and join them in recommending that Congress 
leave to the executive branch the crafting of the detailed rules of 
procedure for military commissions, rather than trying to legislate 
them. I believe that the case law supports the premise that the 
President, when acting as Commander in Chief, has the constitutional 
authority to establish military commissions as long as he stays within 
congressional constraints. The Supreme Court in Hamdan v. Rumsfeld 
implicitly reaffirmed this view. Further, those most knowledgeable of 
how to draw the balance between prosecuting terrorists and safeguarding 
national security interests are the practitioners of military law--
Active-Duty JAGs--who are in the executive branch. Therefore, Congress 
should legislate only where necessary; for example, where a provision 
of the UCMJ must be amended, and leave to the executive branch the 
discretion to establish more detailed rules and procedures in an 
executive order, such as the Manual for Courts-Martial.

    17. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, could each 
of you comment on Mr. Mernin's recommendation that Congress pass 
legislation appointing an expert panel with the mandate of advising 
Congress about the best way to establish a military commission system 
that would respond to the Supreme Court's decision in Hamdan?
    Ms. Massimino. This is an interesting proposal. A body of experts--
perhaps comprised of former JAGs--who remain independent from the 
executive branch yet experienced in national security and military 
commissions would be well-suited to assess the various models and test 
the contentions made by the administration about the necessity for 
depriving detainees of certain fundamental procedural protections 
contained in the UCMJ and Manual for Courts Martial. Also, it is more 
likely that a design proposed by an independent panel of experts would 
be acceptable to the American public and deemed legitimate by the 
international community.
    Ms. Newell Bierman. The process of creating a fair system of 
justice is complex and confusing, with interacting rules and 
procedures, and requires great care. The creation of an independent and 
expert panel to advise Congress is an excellent idea that would give 
any commissions established by Congress greater legitimacy. A body of 
experts would be able to dispel the myth that the UCMJ and Manual for 
Court Martial do not provide a workable system of justice to try those 
accused of war crimes.
    Mr. Fidell. Expert panels such as those the New York City Bar 
Association have proposed can often play a useful role, but we believe 
such a panel in the present context would only put off some of the 
tough decisions Congress is going to have to make in the end anyway. 
The hearings Congress has already held have included many of the 
individuals and groups that would be involved in an expert panel. For 
these reasons, and given the indefensible delay that has already 
occurred since the first detainees arrived at Guantanamo Bay, we 
recommend against an expert panel.
    Dr. Carafano. The executive and Congress have access to the 
expertise they need. To appoint a commission and wait for their 
findings would unnecessarily delay the effort to provide speedy due 
process.
    Mr. Katyal. This is an extremely important and good idea--whether 
along the lines of Mr. Mernin's proposal or that of Senator Levin, who 
has advocated a Code Committee review under the UCMJ provision. An 
expert panel would be helpful for studying the problems involved in 
trying detainees by military commission and developing useful empirical 
evidence about the effectiveness and security of the different models 
available. Indeed, an expert panel would go a long way towards ending 
the myth making and posturing that has dominated this process from the 
start. The administration has offered no empirical evidence, for 
example, that courts-martial fail to protect both the government's 
interests and the constitutional and human rights of the defendants. 
Moreover, the administration's arguments that the hearsay and chain-of-
custody evidentiary rules are burdensome are vastly overstated. See my 
testimony at pages 7-11. Given the tremendous delays in getting 
military commissions off the ground thus far, devoting time and 
research to designing a viable commission system will cause no 
cognizable injury to our national security. There have been no military 
commissions in the past half-century, let alone since September 11, 
and, as the chairman eloquently pointed out, the eyes of the world are 
watching us. Getting it wrong again is simply too dangerous. That bell 
cannot be unrung.
    Mr. Schlueter. I do not agree with the underlying recommendation 
that an expert panel be created in order to address the issue of rules 
of procedure for military commissions. That would simply bog Congress 
down in political debates about what rules should or should not be 
adopted. As I note in my answer to question 17, above, the task of 
drafting the rules should be left to the executive.
    Mr. Silliman. As I mentioned in my testimony, I believe the body of 
experts best suited to making such recommendations regarding military 
commissions are the Active-Duty JAGs, and they can easily and quickly 
be brought together for this purpose. That would not require 
legislation, only a willingness on the part of the executive department 
to convene such a ``grass roots'' panel and to share its findings 
openly with Congress so as to facilitate active and sincere joint 
participation in responding to the Court's decision.

            attorney general gonzales's testimony on hamdan

    18. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in testimony before the Senate Judiciary Committee, Attorney General 
Gonzales stated that the existing military commissions that were struck 
down by Hamdan take into account the ``situational difficulties'' of 
the war on terrorism and ``thus provide a useful basis for Congress's 
consideration of modified procedures.'' Do you agree with the 
suggestion that the commissions should be the starting point for 
legislation?
    Ms. Massimino. No. the military commissions struck down by the 
Supreme Court were so inherently flawed that they should be set aside 
in their entirety. Congress should start fresh in its consideration of 
whether military commissions are necessary, and, if it finds they are, 
what limited deviations from the courts-martial system are needed. 
There is no reason for Congress to take as the framework for its 
deliberations a system which completely failed to meet basic fair trial 
standards. Military commission prosecutors themselves have remarked 
that the military commissions were incapable of delivering a fair 
trial. As the Supreme Court found, they deprived defendants of the most 
basic rights, including the right of an accused to be present at trial 
and provided all of the evidence presented to the factfinder, and the 
right of the accused not to be convicted on the basis of unreliable 
evidence that was obtained through unlawful coercion. Furthermore, the 
military commissions system has been outperformed by the Federal court 
system. The Federal courts have prosecuted 261 terrorism cases since 
September 11 while the military commissions have not produced a single 
conviction. If Congress is looking for a successful model for terrorism 
prosecutions, perhaps it should also draw on the regular criminal 
justice system.
    Ms. Newell Bierman. No. The commissions that the Attorney General 
continues to champion have failed to bring a single accused terrorist 
to justice in their 4 years of operation, even as the DOJ has reported 
having prosecuted over 260 terrorism cases in Federal court during the 
same time period. Moreover, the commissions' flaws are both structural 
and procedural--affecting the entire system--and cannot provide a 
useful starting point for legislation. Even the military commission's 
own prosecutors have complained that the commissions were unfair. The 
Appointing Authority convened the commission, brought the charges, 
selected the panel determining guilt or innocence, oversaw the 
prosecutor and decided dispositive issues of law that arose in the 
middle of trial. This is the equivalent as the executive acting as 
judge, prosecutor, and jury. Moreover, as the Supreme Court concluded, 
the commissions denied the most basic fair trial rights to defendants, 
including the right to be present and to confront the evidence 
presented against them.
    Mr. Fidell. We do not agree with the Attorney General's suggestion. 
We have a robust military justice system. It is not perfect--and we 
would be pleased to discuss with the committee areas in which it could 
be improved--but it is the obvious starting point, and the burden 
should be placed squarely on those who contend otherwise. Indeed, the 
disturbing court-martial cases that have arisen in Iraq and Afghanistan 
in recent months demonstrate the military justice model's ability to 
function in the most adverse circumstances and yet earn public 
confidence. That is more that can be said of the military commissions 
with which the executive branch has been fumbling for years in the 
complete safety of the Guantanamo Bay enclave.
    Mr. Mernin. No. The existing commission procedures were drafted in 
a rush, modified without sufficient review, and never actually 
implemented. No trials resulted from the existing commissions. If there 
are trials to be conducted--rather than detentions dressed up under the 
guise of due process--then security, fairness, and our national values 
demand that a just, clear, and consistent trial system be implemented, 
without hiding behind facile and conclusory assertions of ``situational 
difficulties.''
    Mr. Carafano. Yes and the ending point. As Justice Thomas stated in 
his dissent, the President's latitude in military and foreign affairs, 
especially when sanctioned by Congress in the form of an Authorization 
to Use Military Force, and in a more specific authorization, if 
necessary, is at its zenith.
    Mr. Katyal. No. The flaws with the existing military commissions--
the flaws which contributed to their dismantling by the Supreme Court--
went to the core of the system itself and reeked of self-serving by the 
administration. The commissions were plagued by years-long delays in 
appointing counsel and even in charging the defendants. Further, the 
commissions denied even the most basic trial rights to defendants, 
including the right to be present at trial and the right to question 
and confront the evidence presented against them. Even the military 
commission's own prosecutors complained that the system was unfair to 
defendants and designed to guarantee convictions, not fair trials. The 
Appointing Authority, who convened the commissions and brought the 
charges, was also responsible for selecting the panel determining guilt 
or innocence and exerted control over the prosecutor. Domestically, 
this is the equivalent of a judge initiating the case, picking the 
charges, directing the prosecution, and selecting the jury. It is 
unclear where the Attorney General would have Congress ``start'' in 
this system, because its flaws are embedded within its very structure.
    The starting point--and ending point--for any proposed authorizing 
legislation is the court-martial system established by the UCMJ. For 
reasons explored in my testimony, the court-martial system has many 
significant advantages over any system that could be crafted out of the 
existing commissions. Chief among these advantages is the tremendous 
respect that has been accorded to the UCMJ since the time that it was 
written. Countries throughout the world have emulated the U.S. court-
martial system, and it continues to be a model of how to achieve 
justice when sensitive information and special parties are involved. 
The court-martial system is flexible, secure, and effective. Best of 
all, it already exists.
    Mr. Schlueter. I wholeheartedly agree that the baseline for further 
consideration of military commission procedures should be the existing 
rules adopted in November. In promulgating those procedures, the 
drafters considered a wide range of issues and I believe, got most of 
it right. The fact that some tweaking is required does not justify 
rejecting all of the rules.
    Mr. Silliman. I do not. The Supreme Court appropriately delineated 
the many legal deficiencies, both domestic and international, with 
regard to the President's commission system, and strongly implied that 
the UCMJ be at the core of any new system established in response to 
the Court's ruling. That Code, the UCMJ, should be the starting point.

    19. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
why would someone suggest that the commissions and not the UCMJ should 
be the starting point for legislation?
    Ms. Massimino. There is no good reason why someone would make this 
suggestion. As the Supreme Court made clear, the default system is the 
UCMJ. Those who advocate deviating from the UCMJ have the burden of 
demonstrating why it is impracticable to adhere to this system. There 
are numerous advantages to using the UCMJ as a stating point for 
legislation. Unlike the military commissions system, the UCMJ has been 
approved by the Supreme Court. Therefore, its use will not lead to 
another round of litigation challenging the legality of the system. 
Also, military judges, prosecutors, and defense counsel are well-versed 
in the UCMJ's procedures and, consequently, are better prepared to 
handle prosecutions under this system. As I noted in my testimony, one 
of the major deficiencies with the military commissions at Guantanamo 
was the lack of clarity as to what constituted ``commission law.'' The 
absence of time-tested and court-adjudicated rules and procedures 
resulted in continual delays, and much less predictability and 
stability. Moreover, the efficacy of the UCMJ system has been 
reaffirmed with the recent court-martial cases that arose in Iraq and 
Afghanistan. These cases, which have required the gathering of evidence 
from the operational settings, prove that the UCMJ is fully capable of 
taking into account the ``situational difficulties'' of the war on 
terrorism.
    Ms. Newell Bierman. It is unclear why someone would suggest this. 
When Senator Graham asked the ranking JAGs of each of the armed 
services: ``We need to have military commissions as uniformed as 
possible with the UCMJ, because that's the root source of the law of 
military commissions. Is that correct?'' (7/13, SASC), all answered 
``yes.'' Enacting legislation based on the military commissions--rather 
than the UCMJ--will undoubtedly lead to a whole new round of 
litigation. Military commissions rather than suspected terrorists 
remain on trial. The UCMJ, in contrast, is a tried and true system, 
approved by the Supreme Court, and created in response to concerns 
about the inadequacies of military commissions hastily put together 
during World War II. It provides the appropriate starting point for any 
congressional legislation.
    Mr. Fidell. It is difficult to speculate as to why anyone would 
choose the wrong starting point, as the executive branch has elected to 
continue to do. If the reason is a desire to stack the deck and ensure 
convictions, that would be incompatible with our national values. If 
the reason is to maximize the power of the so-called unitary executive, 
the easy answer is that in this area Congress enjoys its own express 
grant of authority under Article I,  8 of the Constitution.
    Mr. Mernin. Someone acting on behalf of a prosecutor, given carte 
blanche, might follow an ill-advised tendency to create those 
procedures most likely to obtain convictions, in the belief that 
prosecutorial discretion would prevent abuse. That is not a recipe for 
due process, fairness, or honor.
    Dr. Carafano. I do not know, given that it would be extremely 
unwise. I think it would be inappropriate to use UCMJ.
    Mr. Katyal. From the prosecutor's perspective, if Congress gives 
you the ability to write all the rules for trial and the ability to 
define the offenses and pick the judges, you are likely to be elated. 
It's just like appointing the fox to guard the hen house. Trying 
prisoners captured in the global war on terror no doubt poses unique 
challenges. For these reasons, the administration tends to argue that 
it needs a unique court system to try those captured in such unique 
circumstances. Nevertheless, different circumstances alone do not 
justify deviating from a set of laws that has been flexible enough to 
meet the needs of the military during a period where the nature of war, 
and the nature of the military, have both changed rapidly. The UCMJ is 
unfamiliar to most civilian lawyers and has its own system of precedent 
and procedure that government lawyers would themselves have to learn. 
Of course, it's easy to see why the administration would rather start 
from scratch and build a system where it has written all the rules and 
picked the judges. The administration, however, has failed to 
articulate a compelling explanation for why such a deviation from the 
existing system is necessary or prudent. Indeed, as the administration 
has pointed out elsewhere, the DOJ has been remarkably successful in 
using the existing Article III courts to obtain terrorism convictions--
261 between September 11, 2001 and June 22, 2006 by its own count.
    Mr. Schlueter. As I note in my answer to question 18, the drafters 
of those rules considered a wide range of issues and had considerable 
input from both civilian and military sources. Granted, the DOD 
ultimately rejected some recommendations from the uniformed lawyers but 
that fact alone does not warrant complete rejection of the rules. 
Instead, the DOD should be given the option of amending those rules 
found wanting by the Court in Hamdan, or by explaining why the UCMJ 
procedures are not applicable to commissions.
    Mr. Silliman. I believe the rationale for such a suggestion would 
be that the UCMJ is an unworkable system for prosecuting terrorists 
because it contains procedural protections which should not be afforded 
to those who mock and do not adhere to the rule of law. I do not agree 
with that rationale because I believe a military commission system 
under the auspices of the UCMJ is quite workable for such trials and 
has the added advantage of satisfying judicial muster and having a 
great measure of international credibility.

    20. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in testimony before the Senate Judiciary Committee, Attorney General 
Gonzales stated that ``no one can expect members of our military to 
read Miranda warnings to terrorists captured on the battlefield, or 
provide terrorists on the battlefield immediate access to counsel, or 
maintain a strict chain of custody for evidence. Nor should terrorist 
trials compromise sources and methods for gathering intelligence, or 
prohibit the admission of probative hearsay evidence.'' Mr. Gonzales 
suggests that each of these examples would happen if the UCMJ were used 
as the basis for detainee trials. Do you agree with Mr. Gonzales's 
assessment?
    Ms. Massimino. No. The administration's concerns reveal a lack of 
understanding of the flexibility of the court martial system for 
dealing with these issues. First, in no situation does the UCMJ require 
combatants captured on the battlefield to be given either Miranda 
warnings or immediate access to counsel. These rights are only required 
if the detainees are interrogated for law enforcement purposes, not for 
intelligence gathering purposes. Second, the UCMJ has a low threshold 
for the authentication of evidence. Evidence may be authenticated 
either directly or circumstantially; a rigid chain-of-custody need not 
be established. Third, the UCMJ has an adequate procedure to address 
the administration's legitimate concerns about sources and methods; 
prosecutors can introduce summarized or redacted versions. Fourth, the 
UCMJ has a wide array of hearsay exceptions which allow the admission 
of reliable hearsay evidence.
    Ms. Newell Bierman. As described in my testimony, these are all red 
herrings. First, the UCMJ does not require the military to read Miranda 
warnings or provide counsel to those captured on the battlefield. Under 
the UCMJ, Miranda warnings and access to counsel are only required when 
an individual is being interrogated for law enforcement purposes. They 
are not required when an individual is questioned for interrogation 
purposes, and certainly are not required to be given when capturing 
suspected terrorists on the battlefield. Second, the UCMJ and MCM, 
which contains the rules of evidence, do not require strict chain of 
custody for evidence to be introduced at trial. They do, however, 
require some sort of showing that the evidence is what it is purported 
to be--a standard that should apply in any trial that is fair. Third, 
the UCMJ and MCM protect against the disclosure of any evidence that 
would compromise intelligence gathering and give the government broad 
latitude to introduce substitute forms of classified evidence to 
protect intelligence sources and methods. Fourth, the UCMJ and MCM 
include 24 exceptions to the prohibition against hearsay, including a 
residual exception designed to allow in statements of any witness who 
is ``unavailable.'' These rules provide broad latitude to admit 
hearsay.
    Mr. Fidell. We do not agree with the Attorney General. Military 
justice jurisprudence already distinguishes between interrogations for 
law enforcement or disciplinary purposes and those for operational 
purposes. United States v. Loukas, 29 M.J. 385 (C.M.A. 1990); United 
States v. Smith, 56 M.J. 653 (A. Ct. Crim. App. 2001) (no warnings 
required where questions served to execute U.S. Disciplinary Barracks 
operational and security requirements); United States v. Moses, 45 M.J. 
132 (C.A.A.F. 1996) (no warnings required during armed stand-off with 
suspect). Unwarned statements obtained in operational settings for 
security, intelligence, or other non-law-enforcement purposes would be 
admissible in evidence.
    The Attorney General's concern about compromising sources and 
methods is readily handled under M.R.E. 505.
    The admission of hearsay evidence would raise severe problems under 
the Confrontation Clause of the Sixth Amendment to the Constitution. 
Crawford v. Washington, 541 U.S. 36 (2004).
    Chain-of-custody issues have not proven problematic in the normal 
course of military justice even in cases arising from operational 
settings. There are, moreover, various alternative ways to authenticate 
``real'' (i.e., tangible) evidence without having to rely on chain-of-
custody evidence. For example, a seized weapon can be marked by the 
seizing soldier with a knife.
    Mr. Mernin. No. The Association believes that the Attorney 
General's examples misrepresent the prosecutorial realities and the 
UCMJ, and we do not support the extreme departure from fundamental 
guarantees of fairness which the administration endorses. With respect 
to the notion of Miranda warnings in the battlefield, there would be no 
such requirement. The military law version of Miranda warnings provided 
by Article 31(b) of the UCMJ are applicable only with respect to law 
enforcement interrogations. Similarly, we have no understanding that 
any right to counsel ever attaches on the battlefield. The UCMJ already 
provides for a variety of alternate methods of authentication of 
evidence, taking into account the same sorts of evidentiary issues to 
which the Attorney General alluded. In sum, the texts of the UCMJ and 
the Manual for Courts Martial dispel the Attorney General's assertions 
and contain necessary safeguards and exceptions to permit effective 
prosecution, providing necessary latitude to prosecutors while 
guaranteeing fundamental fairness.
    Mr. Carafano. Yes. The UCMJ is a traditional legal system that puts 
the protection of the right of the individual foremost, and then adds 
accommodations for national security and military necessity. That 
system is appropriate for U.S. citizen-soldiers who may err. Such a 
system is not appropriate for unlawful, enemy combatants who want to 
destroy us in the long war in which we are engaged. For example, 
Article 31(b) of the UCMJ requires informing servicemen suspected of a 
crime of their Miranda rights.
    Mr. Katyal. My testimony goes at length into each of these issues 
at pp. 8-10. To summarize:
Miranda Warnings
    Article 31(b) of the UCMJ does contain a Miranda-like requirement. 
But our Nation's highest military court has held that an interrogation 
for purposes of intelligence gathering was not subject to this 
requirement, and that evidence obtained without a 31(b) warning can be 
admitted into a court-martial proceeding. See United States v. 
Lonetree, 35 M.J. 396 (C.M.A. 1992). Military appellate courts have 
repeatedly held that Article 31(b) warnings are required only for ``a 
law-enforcement or disciplinary investigation.'' See, e.g., United 
States v. Loukas, 29 M.J. 385, 387 (C.M.A. 1990). The notion that 
soldiers in the field would be required to give Article 31(b) warnings 
to potential enemy combatants whom they encounter or detain is simply 
not true.
Counsel
    I know of no responsible scholar or lawyer who seriously contends 
that existing law requires ``provid[ing] terrorists on the battlefield 
immediate access to counsel.'' Come to think of it, I do not know any 
irresponsible ones who seriously advocate this position either.
Chain of Custody
    Military Rules of Evidence 901-903 deal with the admission of 
documents--and these rules make introduction of evidence easy, not 
difficult. The proponent of evidence can use various methods to 
authenticate it and is not tied to any rigid step-by-step 
authentication techniques. Stephen A. Saltzburg et al., Military Rules 
of Evidence Manual 9-4 (5th ed. 2003). Military Rule of Evidence 901 
requires only a showing of authenticity through either direct or 
circumstantial evidence. Id. Under the identical Federal Rule 901(a), 
``[t]here is no single way to authenticate evidence. In particular, the 
direct testimony of a custodian or a percipient witness is not a sine 
qua non to the authentication of a writing. Thus, a document's 
appearance, contents, substance, internal patterns, or other 
distinctive characteristics, taken in conjunction with circumstances, 
can, in cumulation, even without direct testimony, provide sufficient 
indicia of reliability to permit a finding that it is authentic.'' 
United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994) (citations 
and internal quotation marks omitted), cert. denied, 514 U.S. 1084 
(1995). Additionally, ``[m]ere breaks or gaps in the chain [of custody] 
affect only the weight of the evidence, and not its admissibility.'' 
Saltzburg, supra, at 8-9; see also United States v. Hudson, 20M.J. 607 
(A.F.C.M.R. 1985).
Hearsay
    The 800 series of the Military Rules of Evidence generally track 
the Federal Rules of Evidence, though the military's business records 
exception is far broader than the civilian rule, expressly allowing the 
admission of such records as ``forensic laboratory reports'' and 
``chain of custody documents.'' The hearsay rules, including the 
residual hearsay exception in Military Rule of Evidence 807, are 
actually quite flexible. They are designed to promote accuracy by 
allowing in forms of hearsay that are reliable and excluding forms of 
hearsay that are unreliable. These rules should be embraced, not 
feared.
    Mr. Schlueter. He is correct, if one were to take the rules 
governing courts-martial and apply them, without limitation, to 
military commissions.
    Mr. Silliman. No, I do not. We must be careful to separate issues 
regarding military operations from questions of the admissibility of 
evidence in a judicial forum. For example, most of the individuals 
captured in Afghanistan or Iraq, and thereafter detained at Guantanamo 
Bay and elsewhere, are being held because they were determined to be 
unlawful combatants, a status which denies them protection as prisoners 
of war under the Third Geneva Convention. Simply being an unlawful 
combatant is not, in and of itself, a violation of the law of war. 
Violating the law of war requires some overt act contrary to that body 
of law which was committed within the context of a recognized armed 
conflict. Thus, with regard to the Article 31(b) requirement for an 
advice of rights upon suspicion of an offense, that would seldom be 
required upon initial capture. Further, that requirement has been 
interpreted in military courts as applying only to those acting in an 
official capacity (e.g. commanders, law enforcement personnel, CID, 
etc.), rather than just anyone who might suspect that an offense was 
committed. Also, choices often have to be made as to whether it is more 
important to detain an individual for purposes of acquiring needed 
intelligence (where one does not worry about evidentiary standards and 
advice of rights because there is no intent to go to trial) or whether 
it is clear from the beginning that there will be a prosecution and 
that any statements taken must necessarily be under circumstances which 
comply with Article 31 so that they can be used against the accused. 
Since perhaps up to 95 percent of those we have detained at Guantanamo 
Bay will never be prosecuted, and they have been held solely for 
intelligence purposes, invoking Article 31(b) as a ``major problem,'' 
in my opinion, merely confuses the issue.
    As to chain of custody considerations, there have been many cases 
where members of our Armed Forces have been prosecuted by court-martial 
for crimes committed on or near the battlefield, and chain of custody 
issues have neither precluded sending the case to trial or, where the 
weight of the evidence supports it, a conviction. Even if there are 
breaks in the chain of custody of a piece of evidence to be offered at 
trial, those breaks only affect the weight of the evidence, not its 
admissibility.
    Finally, with regard to safeguarding classified information during 
trial proceedings or dealing with the admissibility of what some may 
consider less reliable evidence, such as hearsay, these ``problems'' 
are easily solved within a military commissions system under the UCMJ 
by making minor exceptions from regular court-martial procedures.

                       specific trial procedures

    21. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in testimony last week before the Senate Judiciary Committee, Steven 
Bradbury from the DOJ stated that ``a good example to look to for an 
acceptable hearsay rule is the international criminal tribunals, for 
example, for the former Yugoslavia and for Rwanda, which regularly 
allow the use of hearsay evidence, as long as the evidence is probative 
and reliable in the determination of the factfinder, and as long as it 
is not outweighed by undue prejudice.'' Do you believe that this is an 
acceptable hearsay rule?
    Ms. Massimino. Mr. Bradbury did not accurately describe the hearsay 
rule adopted by the ICTY and ICTR in this statement. Rule 92 bis allows 
the admission of hearsay evidence only for nonmaterial facts. Unlike 
the hearsay rule proposed by the administration, the ICTY and ICTR do 
not allow admission of hearsay evidence that goes to prove a material 
fact. Furthermore, the ICTY and ICTR mandate that judges, individuals 
with legal training, decide whether hearsay evidence should be 
admitted. Conversely, the military commissions would empower 
individuals who lack legal training to make these often complex and 
nuanced decisions on hearsay evidence. Thus, the disparity in legal 
knowledge between the international judges and the military 
commissions' jurors makes the admission of hearsay--for the limited 
purpose of establishing nonmaterial facts--appropriate for the ICTY and 
ICTR but not for the military commissions.
    Ms. Newell Bierman. As explained in my testimony, on page 11, these 
rules cannot be considered in isolation. While the international 
tribunals allow the factfinder to admit any relevant evidence that he 
or she deems to have probative value, other rules protect against the 
use of unreliable evidence and the introduction of statements obtained 
through torture or coercion. Importantly, both the ICTY and ICTR 
contain an additional important protection, Rule 92 bis, which ensures 
that hearsay evidence can only be used as corroborating evidence, and 
cannot be used to establish the central facts of the case--acts or 
conduct of the accused that go to proof of the wrongdoing charged. 
Moreover, the ICC and ICTY both contain clear prohibitions on evidence 
that is obtained by a violation of internationally recognized human 
rights norms, such as a prohibition against evidence obtained through 
torture. These international tribunals are made up of legally trained 
judges who have experience making fine distinctions on the reliability 
and value of different forms of evidence that a jury or even a panel of 
non-lawyer officers simply won't have.
    In sum, the ICTY and ICTR hearsay rule would not be acceptable 
unless accompanied by other critical protections, including, at a 
minimum, a prohibition against evidence obtained through torture and 
cruel, inhuman, and degrading treatment; a prohibition on the use of 
hearsay evidence to establish the central facts of the case; and a 
meaningful opportunity to challenge a statement's reliability.
    Mr. Fidell. Mr. Bradbury's assertion is misleading. Rule 92 bis 
(Proof of Facts other than by Oral Evidence) of the International 
Criminal Tribunals for the Former Yugoslavia and Rwanda limits the use 
of hearsay evidence to a statement ``which goes to proof of a matter 
other than the acts and conduct of the accused as charged in the 
indictment.''
    Mr. Mernin. Mr. Bradbury's shorthand reference apparently seeks to 
raise the inference that hearsay was regularly used to prove a case 
against an accused in the cited international criminal tribunals. We 
understand him to refer, in particular, to the permitted use of written 
statements in lieu of live testimony. The suggestion is misleading. 
Rule 92 bis (bis is used for ``(a)'' or ``A'' in the text's numbering 
protocol) permits the introduction of written witness statements in 
certain circumstances, in lieu of live testimony. However, if such a 
statement concerns the acts or conduct of the accused, the witness is 
to be made available for live testimony; thus, the written statement 
alone is never admitted as evidence in chief. Moreover, it is always 
dangerous and difficult to cherry-pick rules from one set of procedures 
and attempt to overlay them onto another system. The issues raised are 
complex. If the committee desires, the Association would be able to 
make an expert on rules of evidence in the international criminal 
tribunals available for consultation.
    Dr. Carafano. Yes, but it might be more generous than necessary, 
depending on how it is interpreted.
    Mr. Katyal. As my testimony explains at pages 7-11, this is 
actually not an accurate statement of the hearsay rules used in the 
international criminal tribunals. Those who would rely on ICTY/ICTR 
evidence rules would do well to consider that the factfinders in those 
tribunals are all legally-trained individuals and judges who are used 
to certain standards of evidence, and who know how to discount evidence 
that does not meet traditional indicia of reliability. The military 
commission, by contrast, consists of untrained, lay factfinders, all of 
whom may have differing assumptions about such matters. Rules of 
evidence are drafted, in part, to guide lay ``jurors'' and avoid 
evidence that might be inflammatory or probative in the minds of the 
untrained. In short, the hearsay standard adopted by the international 
criminal tribunals is acceptable for that court system, but not for 
military commissions to try detainees. As I understand it, the ICTY/
ICTR can't adjudge death, whereas a military commission can, so there 
is reason to be even more cautious with respect to evidentiary rules 
for commissions than for international tribunals. Please also see my 
answer to question 22, below.
    Mr. Schlueter. Although I am not familiar with the specific hearsay 
rules applied by the international criminal tribunals, that rule makes 
perfect sense. In our jurisprudence, we place a great deal of emphasis 
on the heasay rule, often citing English common law. However, in many 
countries, including England, the hearsay rule is essentially a 
requirement that the out of court statements be trustworthy, and 
relevant; the rule in those countries does not seem to carry the weight 
that we ascribe to it.
    Mr. Silliman. I do not think it is readily adaptable to a military 
commission system. The more flexible hearsay rules under the ICTY or 
ICTR are part of an integral evidentiary system which has other 
safeguards to guarantee authenticity. Therefore, we must be exceedingly 
cautious in simply borrowing, out of context, an evidentiary rule from 
an international tribunal.

    22. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
is this how the hearsay rule used by the international criminal 
tribunals works?
    Ms. Massimino. See answer to question 21.
    Ms. Newell Bierman. See answer to question 21.
    Mr. Fidell. Please see our response to question 21. Hearsay that 
would otherwise be inadmissible under Crawford v. Washington, 541 U.S. 
36 (2004), is admissible in the ICTY and ICTR only on matters other 
than the accused's own acts and conduct. See Prosecutor v. Galic, No. 
IT-98-29-AR73.2, at 1 (ICTY June 7, 2002) (ICTY Jud. Supp. No. 34).
    Mr. Mernin. No. See response to question 21. In addition, while the 
rules for admission of hearsay evidence are broader under the 
international criminal tribunals, we understand that, for example, in 
the Milosevic trial, the defense was provided access to every adverse 
witness for cross-examination, whether that witness' initial testimony 
offered was written or oral.
    Dr. Carafano. I don't know.
    Mr. Katyal. No. As I understand it, Assistant Attorney General 
Bradbury did not mention that the rules of both ICTY and ICTR include 
an important and major restriction to the rule allowing hearsay--to the 
point of making a comparison virtually irrelevant for the current 
military commissions debate. Under Rule 92 bis of both ICTY and ICTR 
rules, the trial chamber may choose to admit ``a written statement in 
lieu of oral testimony'' unless such a statement would prove ``acts and 
conduct of the accused as charged in the indictment.'' The trial 
chamber trying Slobodan Milosevic emphasized that ``regardless of how 
repetitive [written statement] evidence is, it cannot be admitted if it 
goes directly to the acts or conduct of the accused.'' Prosecutor v. 
Milosevic, ICTY Case No. IT-02-54, P 8 (Mar. 21, 2002). If the 
administration seriously wants to play by ICTY/ICTR rules, it should 
play by all of them, and not hand pick a few divorced from context to 
suit its purposes.
    Mr. Schlueter. As I note in question 21, I am not familiar with the 
specific hearsay rule applications in international criminal tribunals.
    Mr. Silliman. The ``trier of fact'' in an international criminal 
tribunal is a trial judge (rather than a panel of ``lay'' officers) who 
is well-versed in the fine points of the law regarding the 
admissibility of evidence. He or she therefore has sufficient legal 
training so as to be able, in deliberating guilt or innocence, to give 
the appropriate weight to evidence which, although it may be deemed 
technically admissible under the more flexible rule, is nonetheless far 
from reliable.

    23. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
does the UCMJ and specifically Military Rule of Evidence 501, 
adequately protect classified evidence? If not, what do we need to do 
to enhance the protection of classified information in detainee trials?
    Ms. Massimino. Military Rule of Evidence 505 adequately protects 
classified evidence. Classified information whose disclosure is harmful 
to national security can be presented in alternative forms, including a 
redacted version or a summary of the information. This rule, which is 
highly regarded by military judges, prosecutors, and defense counsel, 
strikes an appropriate balance between the government's interest in 
protecting against disclosure of information that is damaging to our 
national security and the right of an accused to know and confront the 
evidence used against him.
    Ms. Newell Bierman. Yes. There is widespread agreement among 
experienced practitioners, JAGs, and academics that the Military Rules 
of Evidence provide strong protections against the disclosure of 
classified evidence. If disclosure of classified evidence would harm 
national security, the government is entitled to submit a wide array of 
substitute forms of the same information, including a redacted version 
of the classified information, a summary of the information, or even a 
summary of the facts that the evidence would tend to prove. The rules 
ensure that no classified evidence is provided to the accused if its 
disclosure would in any way harm national security.
    Mr. Fidell. The question should refer to Rule 505, which adequately 
protects classified information and closely follows the Classified 
Information Procedures Act of 1980. No special provisions are needed to 
enhance Rule 505 for military commission cases. ``Graymail'' is much 
less of a concern in the military commission context than in other 
criminal cases because the government claims authority to continue to 
detain military commission accused who are acquitted.
    Mr. Mernin. The Military Rules of Evidence, in particular Rule 505, 
provide adequate procedural safeguards for both prosecution and defense 
with respect to classified evidence. We have not been persuaded that 
any other procedure is necessitated, certainly not by conclusory claims 
of ``situational difficulties.'' The defense should have access to any 
evidence supporting the charges against the accused which is offered to 
the court, and civilian defense counsel with security clearances should 
have access to all evidence admitted against the accused and all 
potentially exculpatory evidence.
    Dr. Carafano. No; we need to allow the President and future 
presidents to make such rules.
    Mr. Katyal. Please see my answer to question 6, supra, and my 
testimony at p. 11. There is no need to break from these rules without 
strong empirical evidence demonstrating such a necessity.
    Mr. Schlueter. Yes, in my opinion, those rules would adequately 
protect classified information. If the DOD were to show that they are 
not, I am sure that those rules could be modified to meet the 
exigencies of military commissions.
    Mr. Silliman. The rules governing introduction of classified 
information into evidence are found in MREs 505 and 506 which basically 
mirror the provisions of the Classified Information Procedures Act. I 
consider them more than adequate to protect classified information when 
requested by the accused for use in his defense. As to safeguarding 
critical classified information to be used by the government in 
detainee trials on the question of guilt or innocence, while still 
ensuring some measure of authenticity and at least a minimal level of 
access by the accused, specific rules could be adopted by amending the 
MREs in the Manual for Courts-Martial so as to provide for this. 
Perhaps the use of unclassified summaries specifically approved by the 
military judge might be one option, but there may be others which could 
deal with this issue. All this is easily accomplished in a military 
commission system under the UCMJ by justifying, via Article 36(b) of 
the Code, the need to deviate from the MRE procedures.

    24. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in testimony before the Senate Judiciary Committee and the Senate Armed 
Services Committee last week, much was made of the potential problems 
posed by Article 31(b) of the UCMJ--which essentially sets up the 
military's Miranda rights--in the context of detainee trials. Is it the 
case that this article ties our hands with respect to intelligence 
gathering?
    Ms. Massimino. No. See answer to question 20. The UCMJ does not 
require Miranda warnings when the interrogation is carried out for 
intelligence gathering purposes. They are only required for 
interrogations with law enforcement purposes.
    Ms. Newell Bierman. No. As stated in my testimony on pages 11-13 
and in answer to question 20, Miranda warnings are not required when a 
detainee is being interrogated for intelligence purposes. They are only 
required when someone is being interrogated for law enforcement 
purposes. The claims that Article 31(b) would impose an obligation on 
troops to give Miranda warnings before they capture and question 
suspected terrorists on the battlefield is a straw man, put forth to 
mislead and confuse the committee.
    Mr. Fidell. No. Please refer to our response to question 20.
    Mr. Mernin. No. See response to question 20.
    Dr. Carafano. Yes, among other problems.
    Mr. Katyal. Please see my answer to question 20, supra, as well as 
my testimony at pp. 8-9.
    Mr. Schlueter. Yes, a requirement that military interrogators (or 
civilian employees working for the military) would have to give rights-
warnings is not a frivolous concern or smoke screen. Under Article 
31(b), all suspects being questioned must be advised of the offense, of 
the right to remain silent, and the fact that their statements may be 
used against them. Article 31 does not contain a counsel-rights 
component. But military case law and Military Rule of Evidence 305 also 
require Miranda-type counsel warnings if the suspect is in custody. 
More importantly, Military Rule of Evidence 304 contains an 
exclusionary rule that provides that unwarned statements may be 
excluded.
    If authorities simply wish to gather information, but not introduce 
the statements into evidence, then arguably they can continue to gather 
information through interrogation.
    Mr. Silliman. No, it does not. As discussed more fully in my answer 
to a previous question (question 20), the law does not require that 
every soldier on the battlefield give an Article 31(b) advice of rights 
warning upon initial capture. If one is simply trying to acquire 
intelligence, rather than gathering evidence for use in a later trial, 
then no advice of rights would be necessary.

    25. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
if the military's Miranda rule is truly problematic, how should we fix 
it?
    Ms. Massimino. The UCMJ's Miranda rule is not problematic and thus 
does not need fixing. Interrogators are not burdened by the Miranda 
rule since they need not provide detainees with Miranda warnings when 
interrogating for intelligence purposes. Furthermore, these statements 
are admissible in court so long as they were not obtained through the 
use of coercion, unlawful influence, or unlawful inducement.
    Ms. Newell Bierman. The UCMJ Miranda rule is not problematic. It 
ensures that the accused are not coerced into incriminating themselves 
when being interrogated for law enforcement purposes, while leaving 
interrogators free to question detainees for intelligence purposes 
without issuing Miranda warnings. Moreover, any statements that are 
elicited during intelligence interrogations can still be admissible in 
court, even if no Miranda warnings have been given.
    Mr. Fidell. Article 31 has not been a problem and does not need to 
be fixed. Any legislation Congress enacts should, however, make clear 
that the existing suppression rule in Article 31(d) for statements 
obtained ``through the use of coercion, unlawful influence, or unlawful 
inducement,'' currently applicable to courts-martial, also applies to 
military commissions.
    Mr. Mernin. The Association does not have any understanding that 
UCMJ Article 31 is ``problematic'' and needs to be fixed. If it were, 
it would need to be fixed generally, and not merely with respect to 
detainees.
    Dr. Carafano. Let the President set the rules.
    Mr. Katyal. I would only ``fix'' any of the military's existing 
rules after the empirical evidence has demonstrated that they need 
fixing. On the other hand, statutory language codifying the case law 
exempting operational/intelligence questioning from the Article 31(b) 
rights warning requirement and the exclusionary rule for violating the 
rights warning requirement would do no harm--it would simplify codify 
the existing law.
    Mr. Schlueter. One way to fix the Miranda issue is to create 
statutory exception (or in the Military Rules of Evidence, should a 
decision be made to apply the Rules of Evidence to military 
commissions) for certain trials or for those cases where it is 
determined that the interrogation was for important national security 
information.
    Mr. Silliman. Although I do not view Article 31(b) of the Code as 
problematic with regard to mere intelligence gathering, if there is 
concern that it might pose a problem as to gathering evidence for use 
in a later military commission, then the advice of rights requirement 
could be a provision which is deemed to be ``impracticable'' in the 
President's determination under Article 36(b) justifying deviations 
from normal court-martial procedures.

    26. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
at the House Armed Services Committee hearing on Hamdan, Mr. Bradbury 
of the Justice Department's Office of Legal Counsel said the 
administration wishes to maintain flexibility in introducing evidence 
coerced from detainees. Specifically, he said, ``We do not use as 
evidence in military commissions evidence that is determined to have 
been obtained through torture. But when you talk about coercion and 
statements obtained through coercive questioning, there's obviously a 
spectrum, a gradation of what some might consider pressuring or 
coercion short of torture, and I don't think you can make an absolute 
rule.'' Is Mr. Bradbury correct in his analysis of coercion and the 
need to introduce coerced evidence in detainee trials?
    Ms. Massimino. He is not. As explained in my testimony on page 8, 
if there is any lesson we should have learned over the past 4 years, it 
is that obtaining information through the use of force, coercion, or 
intimidation, is unnecessary and counter-productive. To enforce legal 
prohibitions against torture and cruel treatment, we must draw a bright 
line against the introduction of any evidence obtained through unlawful 
coercion. Admitting evidence acquired from coercive interrogation is a 
de facto sanctioning of that coercive conduct and would seriously 
undermine the prohibitions on torture and other cruel, inhuman, or 
degrading treatment found in Common Article 3 and the DTA. If we want 
to uphold these standards, we should not undermine them by admitting 
into court the fruits of their violations.
    Ms. Newell Bierman. As Major General Scott C. Black, JAG of the 
Army, told the Senate Judiciary Committee: ``I don't believe that a 
statement that is obtained under coercive, under torture, certainly, 
and under coercive measures should be admissible.'' (8/2, Senate 
Hearing). All of the other ranking JAGs agreed. This rule is 
particularly important given the administration's extremely narrow 
definition of torture, which does not even include waterboarding (a 
form of mock drowning). The government's proposed rule would allow the 
use of evidence obtained through a wide array of cruel and inhuman 
practices that don't meet the government's definition of torture--use 
of snarling dogs, naked pyramids of prisoners, prolonged exposure to 
extremes of heat and cold. Congress would be effectively sanctioning 
such practices, inviting their continued use. As Senator McCain stated 
in the August 2, 2006, hearing before this committee: ``I think that if 
you practice illegal, inhumane treatment and allow that to be 
admissible in court, that would be a radical departure from any 
practice [of] this Nation.''
    Mr. Fidell. NIMJ sees no basis for distinguishing between courts-
martial and military commissions from the standpoint of suppressing 
evidence obtained through coercion. We believe the Nation would be 
profoundly offended if one of our GIs or civilian personnel were put on 
trial elsewhere and evidence obtained through coercion were admissible. 
We must apply that same standard to ourselves. What constitutes 
coercion, of course, will have to be decided as a matter of law by the 
military judge in a military commission.
    Where coercion has been applied, the resulting evidence (including 
fruits) would be inadmissible in a military commission trial, but could 
still be of value for intelligence purposes. At times, the executive 
branch may be put to difficult choices between the need for 
intelligence and the desire to invoke the criminal process.
    Mr. Mernin. According to the U.S. Army's Field Manual on 
Intelligence Interrogation and its predecessors, coercion and threats 
of coercion are illegal, immoral, and of little or no practical value 
in interrogations. Our Armed Forces have long understood that coerced 
evidence is unreliable. Even assuming that isolated coerced information 
were to prove worthwhile in the intelligence-gathering context, to 
conclude that such information was sufficiently reliable so as to be 
introduced as evidence would be a departure from well-established law 
and practice, contrary to what years of experience have taught our 
Armed Forces, and contrary to our Nation's values. The Association 
believes that Senator McCain and the testifying JAGs are inarguably 
correct on this fundamental issue.
    Dr. Carafano. Yes.
    Mr. Katyal. As Senator McCain has stated, coerced confessions 
should be excluded. The Supreme Court has repeatedly recognized ``the 
probable unreliability of confessions that are obtained in a manner 
deemed coercive.'' Jackson v. Denno, 378 U.S. 368, 386 (1964). The 
Supreme Court recognized this concept most recently in an opinion 
written by Chief Justice Roberts. See Sanchez-Llamas v. Oregon, 126 S. 
Ct. 2669 (2006) (``We require exclusion of coerced confessions both 
because we disapprove of such coercion and because such confessions 
tend to be unreliable.'').
    Article 31(d) of the UCMJ categorically excludes from courts-
martial statements obtained by coercion. Article 31(a) of UCMJ extends 
this rule to compelling someone to answer questions. The commission 
version of Article 31(a), meanwhile, only speaks to testifying. When 
combined with the commission version of 31(b), which allows the 
admission of coerced statements, the result is that U.S. military 
members have an incentive to use coercion to gather information.
    While it might be appropriate to include a definition of coerced 
statements in a statute applicable to commissions--a definition that 
does not appear in the UCMJ--coerced statements should be per se 
inadmissible.
    Mr. Schlueter. I agree with Mr. Bradbury. That principle applies 
not only in military commissions but in both civilian and military law. 
The case law on this point is clear. Police may use trickery, 
deception, and even some mentally coercive means to obtain statements. 
The test is whether the suspect's will was overborne. The fact that a 
suspect is delusional or that interrogators appealed to a suspect's 
emotions or even religious beliefs are common and permissible tactics 
for law enforcement--as long as the accused's statements are voluntary.
    Mr. Silliman. First, I do not agree with Mr. Bradbury regarding his 
inability to define coercion short of torture. Those techniques which 
were approved for use in Army Field Manual 34-52 were clearly 
consistent with international law and, in the experience of many Army 
interrogators, yielded credible information. As to the need to 
introduce evidence obtained by coercive measures, I question whether 
there is any guarantee that such evidence would even be truthful since 
it is widely accepted that people will say anything to stop pain; and I 
also believe that allowing coerced evidence into a trial runs contrary 
to our national values and would further erode our standing in the 
international community as a nation under the rule of law.

                       specific trial procedures
    27. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
in a letter dated July 10, 2006, and addressed to Chairman John Warner 
of the Senate Armed Services Committee and Chairman Arlen Specter of 
the Senate Judiciary Committee, a group of retired JAGs state that we 
should ``bring accused terrorists to justice in military trials based 
on the UCMJ and MCM.'' The letter goes on to say that, in developing 
legislation to address the Hamdan ruling, ``it should start from the 
premise that the United States already has the best system of military 
justice in the world'' but that narrowly targeted amendments to the 
UCMJ to accommodate ``specific difficulties in gathering evidence 
during the time of war'' would be acceptable. If the current rules are 
not adequate, what changes need to be made to those rules?
    Ms. Massimino. The current rules for trials based on the UCMJ and 
MCM are adequate. The court-martial system was designed to prosecute 
prisoners in exactly this type of setting and has a well-established 
track record. The burden is on those advocating for change to establish 
the necessity of substituted rules.
    Ms. Newell Bierman. The claims that the UCMJ is not equipped to 
handle the difficulties of trying individuals captured during wartime 
are largely overstated. In fact, the UCMJ is designed explicitly to 
dispense military justice for conduct during armed conflict, including 
the prosecution of prisoners of war who commit abuses during times of 
war. Any changes to the UCMJ should be narrowly tailored, limited, and 
based on demonstrated necessity.
    Mr. Fidell. Whether or not the United States has ``the best system 
of military justice in the world'' aspects of it would not, for 
example, pass muster under the European Convention on Human Rights--
that system is unarguably a dramatically better model from which to 
work than the dusted-off procedures President Roosevelt issued for the 
trial of the German saboteurs in 1942, to which the current generation 
of military commission rules have been traced. NIMJ is preparing a 
revised proposal that would set a due process ``floor,'' exempt 
military commissions from some parts of the UCMJ, and afford the 
President carefully cabined residual rulemaking authority to depart 
from the general court-martial norm.
    Mr. Mernin. Fundamentally, the Association believes the rules for 
commissions should not depart materially from the UCMJ and Manual for 
Courts Martial. We believe that convening a panel of experts would 
guarantee that a thorough job of determining necessary circumscribed 
departures from the UCMJ would occur in a transparent and nonpartisan 
manner. This process would serve the twin goals of establishing a 
workable system to prosecute and punish our enemies who have committed 
breaches of the law of war, and establishing a system which reaffirms 
the United States' role as the world's pre-eminent advocate of the rule 
of law and justice. Moreover, it is also essential that the system 
crafted is worthy of the American men and women in uniform who will 
make it work, whether as prosecutors, defense counsel, or judges.
    Dr. Carafano. They should more clearly and explicitly exempt 
military commissions that try illegal combatants.
    Mr. Katyal. Again, I do not believe that the rules for military 
commissions should deviate from the UCMJ rules for courts-martial until 
there is empirical evidence to demonstrate that such deviations are 
necessary. Please also see my answers to questions 6, 16-20, and 23 
above.
    Mr. Schlueter. That is very difficult to say. As someone with over 
30 years of experience with military justice, I firmly believe that the 
system is fair. But I am also struck by the fact that for the first 
time in 30 years, those organizations and individuals who once 
questioned and challenged its fairness, now find it not only 
acceptable, but desirable. I understand that the administration has 
proposed a large number of changes to the UCMJ to accommodate military 
commissions. That draft should be a good start.
    Mr. Silliman. I wholeheartedly endorse the statements of the 
retired JAGs contained in their letter. A system for military 
commissions, based upon existing jurisdictional authority in Articles 
18 and 21 of the UCMJ and employing most of the procedural protections 
afforded to our own service personnel under the UCMJ and the Manual for 
Courts-Martial, would not only be a proper prosecutorial forum for 
trying terrorists but would also be upheld in the courts and applauded 
by the global community. If exceptions from those procedural 
protections are to be taken, they would probably include a more 
flexible standard for the admissibility of evidence (but still 
prohibiting evidence acquired through torture or coercion); the 
elimination of a formal Article 32 pretrial investigation; a more 
streamlined appellate procedure, perhaps eliminating the need for an 
Article 66 review in a service court of criminal appeals prior to 
review in the U.S. Court of Appeals for the Armed Forces; and perhaps 
some modification to the threshold for giving advice of rights under 
Article 31(b).

    28. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
how, in your view, can Congress best fashion legislation that will 
stand up to Supreme Court scrutiny?
    Ms. Massimino. The UCMJ and the Manual for Courts Martial already 
stand up to Supreme Court scrutiny. As the Supreme Court ruling in 
Hamdan requires, they provide a fair process in accordance with Common 
Article 3. Attempting to satisfy the requirements of Common Article 3 
with an improvised military commissions system is a tall order and one 
that the administration has failed twice already to fill. Therefore, 
Congress would be best served by sticking with the UCMJ and MCM. 
However, to the extent that it deviates from the UCMJ and MCM, Congress 
should maintain the court-martial system as the basis for the new 
system and only substitute procedures when an imperative need is 
demonstrated and the substitution is narrowly tailored to fit that 
need.
    Ms. Newell Bierman. The Supreme Court laid out a way forward. The 
UCMJ and MCM constitute a tried and true system and should serve as the 
starting point for any legislation. Any deviations from the UCMJ and 
MCM need to be narrowly tailored and carefully crafted to respond to an 
identified need.
    Mr. Fidell. Our proposal, which is in the course of revision, would 
be sustained by the Supreme Court. It would meet Common Article 
3(1)(d)'s requirement for ``a regularly constituted court affording all 
the judicial guarantees which are recognized as indispensable by 
civilized peoples,'' would bar secret evidence and trials from which 
the accused was excluded, and would take account of the uniformity 
requirement currently found in Article 36(b) of the UCMJ.
    Mr. Mernin. Using the UCMJ as a starting point, and departing from 
it only to address demonstrable ``situational difficulties,'' would 
likely be the best course to take in order to arrive at a workable 
system which would survive judicial review.
    Dr. Carafano. Congress could fashion such legislation by explicitly 
authorizing the procedures set forth in the President's Executive Order 
of November 13, 2001 as it attempted to do in the DTA of 2005. The 
Court's reason for striking down the use of military tribunals was that 
the procedures were insufficiently authorized, including Congress's 
attempt to divest Federal courts of jurisdiction over them.
    Mr. Katyal. In my view, it is vital that Congress first to do no 
harm. No changes to the court-martial system should be made until there 
is empirical evidence demonstrating that such deviations are required. 
The administration's proposed legislation that was circulated by the 
Washington Post 10 days ago, for example, would quickly be invalidated 
by courts, and lead again to the terrible prospect of not having any 
convictions of detainees in the wake of September 11.
    The court-martial system can meet the needs of the government while 
protecting our national security interests and fulfilling our 
constitutional and international obligations. Importantly, a court-
martial is a decidedly legal proceeding and there is already 
substantial law on the books authorizing and governing them. The 
Supreme Court has on countless occasions recognized and affirmed such 
proceedings--most recently in the Hamdan opinion. Courts-martial 
satisfy all the conditions for trials of detainees that the Hamdan 
majority found the President's commissions lacking. They would 
eliminate the problems of uniformity that the Supreme Court found so 
problematic; they would provide assurances of independent proceedings 
and review that the commissions sorely lack; and they would satisfy 
Common Article 3's requirement of a ``regularly constituted court''--a 
requirement that may be difficult, if impossible, to achieve by 
patchwork legislation.
    Finally, any departures from the UCMJ must be coupled with an anti-
abstention provision, along the lines of the McCain-Feingold campaign 
finance legislation. The system needs to be reviewed immediately, not 
years after the fact when convictions would have to be reversed and 
terrorist defendants potentially set free. Please also see my answer to 
question 2, above.
    Mr. Schlueter. I do not see the decision in Hamdan as requiring a 
massive overhaul of either the UCMJ, MCM, or military commission rules. 
There was some indication that the commission rules might have been 
approved by the court, had the President complied with Article 36(b), 
UCMJ. As noted above, I think Congress should take a minimalist 
approach--enact legislation that explicitly grants authority to the 
President to convene military commissions and also remove the 
uniformity requirement from Article 36.
    Mr. Silliman. If Congress accepts the premise that any system for 
military commissions should use the UCMJ as the core, excepting such 
court-martial procedures as are determined and justified to be 
impracticable, then there is no question in my mind that it will 
withstand judicial scrutiny. That would entail a minimal amount of 
legislative amendments to the Code itself; the rest of the changes 
would be made to the rules for courts-martial and military rules of 
evidence, integral parts of the Manual for Courts-Martial, an executive 
order promulgated by the President. Congress could maintain oversight 
of these changes to the MCM through an appropriate reporting 
requirement.

    29. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
the Hamdan court appeared to be concerned about an accused and his 
civilian counsel being excluded from, and precluded from ever learning 
what evidence was presented during, any part of the military commission 
trial. How should this concern be addressed?
    Ms. Massimino. A defendant must have the right to know the evidence 
being used against him, to respond to it, and to challenge its 
credibility or authenticity. Rule 505 of the MCM provides a method for 
the prosecution to use classified evidence without infringing on this 
right. See answer to question 23.
    Ms. Newell Bierman. This concern is adequately dealt with in Rule 
505 of the MCM, dealing with classified evidence. As explained in the 
answer to question 23, these rules allow for all kinds of substitute 
evidence to be provided in the place of classified evidence. But the 
bottom line rule still applies: Whatever substitute version of the 
evidence is shared with the accused is the same evidence that is 
presented to the factfinder. No one should be convicted on the basis of 
evidence that he was never provided and had no opportunity to contest.
    Mr. Fidell. Any legislation should put military commissions on a 
solid statutory basis and make it clear that the accused and his or her 
counsel must (a) have access to all evidence that is presented to the 
triers of fact, and (b) be present at all sessions unless they 
voluntarily (or through misbehavior) waive that right. The latter right 
would be similar to the right applicable to courts-martial under 
Article 39(b) of the UCMJ.
    Mr. Mernin. Such a situation should not be permitted. As I 
testified, the accused must ultimately have access to any evidence 
supporting the charges against him which is offered to the court, and 
civilian defense counsel with security clearances should have access to 
all evidence admitted against the accused and all potentially 
exculpatory evidence. UCMJ evidentiary rules accommodate these 
fundamental standards.
    Dr. Carafano. With regard to illegal combatants, the 
administration's rules provide adequate protections, and more than 
international law ever required. Congress should simply authorize them.
    Mr. Katyal. The accused must be entitled to be present during all 
proceedings and the accused must be entitled to see all of the evidence 
that the members see. As former Rear Admiral Hutson pointed out, 
denying the accused this most basic of rights results in telling him, 
basically, ``We know you're guilty. We can't tell you why, but there's 
somebody that says you're guilty.'' Denying this right to the accused, 
especially in light of the Hamdan majority's mandate, would be 
extremely dangerous, unjust, and unwise. As Senator Graham stated in 
the August 2 hearing:

          ``So the question may become for our Nation, if the only way 
        we can try this terrorist is disclose classified information 
        and we can't share it with the accused, I would argue don't do 
        the trial. Just keep him. Because it could come back to haunt 
        us. I have been in hundreds of military trials. I can assure 
        you the situation where that's the only evidence to prosecute 
        somebody is one in a million. We need not define ourselves by 
        the one in a million.''

    Mr. Schlueter. The issue of access by the accused and his attorney 
to all proceedings is difficult. But it is one that has addressed the 
courts in the past anytime national security information was involved 
in the trial. Those rules should be applied to military commissions as 
well. The procedural aspects of Military Rules of Evidence 505 and 506 
are good starting points for drafting such rules.
    Mr. Silliman. This concern only applies, I believe, to an accused 
being removed from his own trial when classified and other extremely 
sensitive national security information is being offered into evidence. 
As discussed in my answer to a previous question (question 23), 
Military Rules of Evidence 505 and 506 could be amended to provide for 
safeguarding critical national security information to be used by the 
government in detainee trials on the question of guilt or innocence, 
while still ensuring some measure of authenticity and at least a 
minimal level of access by the accused. Such a provision would then 
obviate the need to remove the accused from trial proceedings except 
when he is disruptive.

    30. Senator McCain. Ms. Massimino, Ms. Newell Bierman, Mr. Fidell, 
Mr. Mernin, Dr. Carafano, Mr. Katyal, Mr. Schlueter, and Mr. Silliman, 
Dr. Carafano suggested in his testimony that to win the war of ideas in 
the war on terrorism Congress should essentially ratify the military 
commissions that have been overturned by the Supreme Court. I would 
suggest that there are some here who believe that the exact opposite is 
true: That to win the war of ideas we need to put in place a system 
that is based on the UCMJ and that respects Common Article 3, and that 
only that way will we show the world that we are truly different from 
our enemy in this war. Would the panel care to comment?
    Ms. Massimino. How we treat suspected terrorists--including how we 
try them--speaks volumes about who we are as a nation, and our 
confidence in the institutions and values that set us apart. The 
hallmark of the rule of law as applied by civilized nations is a system 
that is impartial and that is made up of procedures and rules that are 
consistent, predictable, and transparent. Our civilian courts and 
military justice systems are the envy of the world--and for good 
reason. We have a system that is designed not just to convict those the 
government suspects are guilty, but to deliver justice. The Supreme 
Court has just reminded us that, even in the face of extraordinary 
threats to our security, our traditional values and institutions should 
be seen not as liabilities, but as assets--tools in the struggle to 
combat terrorism. These values and institutions--in particular here, 
the UCMJ and the Geneva Conventions--should again become the lodestar.
    Ms. Newell Bierman. These trials will undoubtedly be some of the 
most scrutinized trials in the world. It is a chance for the United 
States to showcase to the world its respect for the rule of law, its 
principles of fair justice and humane treatment, and to win back the 
moral high ground. A system based on the UCMJ and MCM that respects the 
fair trial standards embodied in Common Article 3 is the right way 
forward.
    Mr. Fidell. We completely agree with Dr. Carafano that the war of 
ideas must not be overlooked. In our view, adhering to our Nation's 
high standards of the rule of law, fundamental fairness, and respect 
for the individual are better calculated to make progress in the battle 
of ideas than creating a third-rate system of justice that will never 
gain public confidence here, much less anywhere else.
    Mr. Mernin. The war of ideas will be won, in part, by 
demonstrating, without hedging, that American justice and values are 
not built on words without meaning. Putting in place a system which 
provides fundamental guarantees of due process and fairness will 
demonstrate to our enemies, to our allies, and to our friends, that the 
United States intends to lead the world and remain in the vanguard of 
respect for the rule of law and human dignity. The U.S. Military 
Academy, in preparing cadets for their role as the next commanders, 
requires instruction in military and constitutional law. These young 
men and women are training to be leaders in this war--a ``Long War on 
Terror,'' as it is now characterized--and we owe them, and all our 
troops, support and gratitude. If we take the position that we can 
whittle away, for the sake of the moment, bits and pieces of our treaty 
obligations--the ``supreme law of the land''--honored in letter and 
spirit for 50 years, we send the wrong message to those cadets, our 
troops, our enemies, our allies, and to the world. We send a message 
that the parsing of words for the sake of expediency trumps experience, 
honor, and law. If we slide down this slippery slope, we will be judged 
at the bottom by those left standing at the top.
    Dr. Carafano. I stand by my original testimony. In addition, giving 
illegal combatants the same protections under the Geneva Conventions as 
soldiers who abide by the laws of war will only weaken the Conventions 
by removing an incentive to join. After all, if a nation or non-state 
actor can receive such protections without abiding by the Convention, 
why would they ever abide by its rules?
    Mr. Katyal. This question, more than any other in the thousands of 
words I have read since working on this issue for the past 5 years, 
states the precise problem. To answer it, I will quote from what 
another brave American, Justice Rutledge, said 60 years ago. In his 
dissent in the last significant military commission case (Yamashita v. 
Styer (1946)), Justice Rutledge said:

          ``It is not too early, it is never too early, for the Nation 
        steadfastly to follow its great constitutional traditions, none 
        older or more universally protective against unbridled power 
        than due process of law in the trial and punishment of men, 
        that is, of all men, whether citizens, aliens, alien enemies or 
        enemy belligerents. It can become too late.
          This long-held attachment marks the great divide between our 
        enemies and ourselves. Theirs was a philosophy of universal 
        force. Ours is one of universal law, albeit imperfectly made 
        flesh of our system and so dwelling among us. Every departure 
        weakens the tradition, whether it touches the high or the low, 
        the powerful or the weak, the triumphant or the conquered.''

    Gilding over the existing, flawed military commission system, which 
the Supreme Court has found illegal and that other countries have found 
unconscionable, would dishonor our country's great constitutional 
tradition. The right to a fair trial is one of the foundational rights 
enshrined in our Constitution, one that has weathered every war this 
country has fought. Strict adherence to that tradition, and to the 
fundamental principle of rule of law, is what separates us from our 
enemies, and what makes America the best country in the world. The rule 
of law should not be another victim in the war on terror.
    Mr. Schlueter. I do not agree with Dr. Carafano. The due process 
protections applicable in Federal, State, and military trials were not 
established to demonstrate to anyone that our system is better than any 
other system. To do so, suggests that there is an extant body of law 
that will appeal to terrorists who have vowed to destroy America 
itself. If we are to expand the due process rights available to such 
terrorists, it should be for reasons other than public relations. I 
have no doubt that if Congress and the President were to try terrorists 
by military courts-martial--with all of the rights and protections 
available to American servicemembers--that domestic and foreign critics 
would still find fault.
    Mr. Silliman. I completely agree with your assessment; and I 
strongly disagree with Dr. Carafano. We can only win the ``war of 
ideas'' by proving to the international community that we are, in 
practice as well as rhetoric, a nation under the rule of law.

    31. Senator McCain. Mr. Schlueter, how would your proposed two 
amendments to the UCMJ be responsive to the Hamdan court's ruling that 
detainee trials must adhere to the requirements of Common Article 3 of 
the Geneva Conventions?
    Mr. Schlueter. My reading of the Hamdan decision is not that the 
military commissions must in all circumstances comply with Common 
Article 3, which apparently speaks in broad terms. My proposal would 
address the new key features in the court's opinion--the authority of 
the President to convene commissions and the uniformity requirement in 
Article 36(b). According to the Court, Article 3 applies under the 
Supremacy Clause of the Constitution (Article VI). But, as with all 
treaties, Congress may enact a subsequent statute that would prevail 
over the treaty provision. Congress can do that by amending the UCMJ to 
recognize, what if any provisions in Article 3, are applicable to 
military commissions.

    32. Senator McCain. Mr. Schlueter, under your proposal, wouldn't it 
be possible and maybe probable for the President to promulgate 
procedures that are virtually identical to those set forth in Military 
Order No. 1?
    Mr. Schlueter. Yes, the President could simply readopt procedures 
set out in the existing rules. I doubt that will happen, however.

    33. Senator McCain. Mr. Schlueter, how would your proposal achieve 
better the goal of avoiding Supreme Court rejection than proposals to 
modify the UCMJ to comply with the Hamdan ruling?
    Mr. Schlueter. Unlike others, I do not read Hamdan to require that 
the UCMJ and the MCM must be the baseline for any further legislation 
or changes. My recommendations are intended to: (1) take a modest 
approach to reacting to Hamdan; (2) recognize the constitutional role 
of the President as commander in chief; (3) recognize the traditional 
and respective roles of Congress and the President in promulgating 
rules of procedure, as reflected in Article 36; and (4) remove the 
uniformity requirement in Article 36, which as far as I know, had never 
really been interpreted to apply to military commissions. If that were 
true, then the uniformity principle would apply to Provost Courts and 
any other military tribunal.
    The plurality's approach was more modest than that suggested by 
Justice Kennedy in his concurring opinion. He, and not the plurality 
and not the dissenters, criticized the President for not applying the 
full range of protections available to those being tried. Nor did the 
Court say that only Congress can fix the problem.
    The key to responding to Hamdan is not necessarily in amending the 
UCMJ, but in providing the basic protections to those being tried by 
military commissions. That can be accomplished just as easily by 
amending the commission rules themselves.
    My minimalist approach would not necessarily provide any immunity 
against judicial review; but I cannot imagine that a wholesale review 
and changes to the UCMJ would be any more immune.

    [Whereupon, at 1:40 p.m., the committee adjourned.]


CONTINUE TO RECEIVE TESTIMONY ON THE FUTURE OF MILITARY COMMISSIONS IN 
       LIGHT OF THE SUPREME COURT DECISION IN HAMDAN V. RUMSFELD

                              ----------                              


                       WEDNESDAY, AUGUST 2, 2006

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:20 p.m. in room 
SH-216, Hart Senate Office Building, Senator John Warner 
(chairman) presiding.
    Committee members present: Senators Warner, McCain, Inhofe, 
Sessions, Collins, Talent, Chambliss, Graham, Cornyn, Thune, 
Levin, Reed, Akaka, E. Benjamin Nelson, Dayton, Bayh, and 
Clinton.
    Committee staff members present: Charles S. Abell, staff 
director; and Leah C. Brewer, nominations and hearings clerk.
    Majority staff members present: William M. Caniano, 
professional staff member; David M. Morriss, counsel; Robert M. 
Soofer, professional staff member; and Scott W. Stucky, general 
counsel.
    Minority staff members present: Richard D. DeBobes, 
Democratic staff director; Jonathan D. Clark, minority counsel; 
Gabriella Eisen, professional staff member; Peter K. Levine, 
minority counsel; William G.P. Monahan, minority counsel; and 
Michael J. Noblet, staff assistant.
    Staff assistants present: Jessica L. Kingston, Benjamin L. 
Rubin, and Pendred K. Wilson.
    Committee members' assistants present: Richard H. Fontaine, 
Jr. and Pablo Chavez, assistants to Senator McCain; John A. 
Bonsell, assistant to Senator Inhofe; Mackenzie M. Eaglen, 
assistant to Senator Collins; Russell J. Thomasson, assistant 
to Senator Cornyn; Mieke Y. Eoyang, assistant to Senator 
Kennedy; Frederick M. Downey, assistant to Senator Lieberman; 
Elizabeth King, assistant to Senator Reed; Eric Pierce, 
assistant to Senator Ben Nelson; Luke Ballman, assistant to 
Senator Dayton; Robert J. Ehrich and Elizabeth Brinkerhoff, 
assistants to Senator Bayh; and Andrew Shapiro, assistant to 
Senator Clinton.

       OPENING STATEMENT OF SENATOR JOHN WARNER, CHAIRMAN

    Chairman Warner. Good afternoon, ladies and gentlemen. We 
apologize for starting a little after 2:00, but we had a vote. 
That is the one thing that we have to do here.
    The committee meets today to conduct the third in a series 
of hearings on the future of military commissions in light of 
the Supreme Court decision in Hamdan v. Rumsfeld.
    We are privileged to have with us the Attorney General of 
the United States, the Honorable Alberto Gonzales; and the 
Deputy Secretary of Defense, the Honorable Gordon England. They 
are accompanied respectively by Steven Bradbury, acting head of 
the Justice Department Office of Legal Counsel, and Daniel 
Dell'Orto, Deputy General Counsel of the Department of Defense 
(DOD).
    In two previous hearings we have had the benefit of 
testimony of the Judge Advocates General (JAGs) of the Armed 
Forces, retired JAGs, human rights groups, and bar association 
and academics who specialize in military law. Today we hear 
from the administration on its recommendations for legislation 
to create new military commissions--I emphasize, new military 
commissions--consistent with the issues raised by the Supreme 
Court in the Hamdan decision, both statutory and with respect 
to Common Article 3 of the Geneva Conventions.
    We have been in regular consultation with Attorney General 
Gonzales and Secretary England. We have had excellent 
consultation here in the Senate with your respective 
departments all along.
    We understand that the final draft administration proposal 
is still being worked upon, and that is for the good in my 
judgment. This is a very important thing. Given that we are 
about to go on recess, it is clear that it would be beneficial 
for the committee to receive their current status report on 
this particular piece of legislation.
    Our committee intends to work with the administration 
during the August recess, with the strong possibility of 
additional hearings by the committee before we mark up a bill 
and report it to the bipartisan leadership of the Senate.
    I reiterate what I have said before: Congress must get this 
right. We must produce legislation that provides for an 
effective means of trying those alleged to have violated the 
law of war, while at the same time complying with our 
obligations under international and domestic law. How we treat 
people in these circumstances will affect the credibility of 
our country in the eyes of the world.
    Thank you.
    [The prepared statement of Senator Warner follows:]

               Prepared Statement by Senator John Warner

    The committee meets today to conduct the third in a series of 
hearings on the future of military commissions in light of the Supreme 
Court's decision in Hamdan v. Rumsfeld. We are privileged to have with 
us the Attorney General of the United States, the Honorable Alberto 
Gonzales; and the Deputy Secretary of Defense, the Honorable Gordon 
England. They are accompanied, respectively, by Steven Bradbury, acting 
head of the Justice Department's Office of Legal Counsel, and Daniel 
Dell'Orto, Deputy General Counsel of the Department of Defense.
    In two previous hearings, we have had the benefit of the testimony 
of the Judge Advocates General (JAGs) of the Armed Forces, retired 
JAGs, human rights groups and bar associations, and academics who have 
specialized in military law. Today we hear from the administration on 
its recommendations for legislation to create new military commissions, 
consistent with the issues raised by the Supreme Court in Hamdan, both 
statutory and with respect to Common Article 3 of the Geneva 
Conventions.
    I and other Members of the Senate have been in regular consultation 
with the administration. While the final draft of the administration's 
proposal is still being worked upon, it is clear that it would be 
beneficial to receive an update on its status from our witnesses. Our 
committee intends to work with the administration during the August 
recess, with the strong possibility of additional hearings before the 
committee marks up a bill and reports it to the full Senate.
    I reiterate what I have said before: Congress must get this right. 
We must produce legislation that provides for an effective means of 
trying those alleged to have violated the law of war, while at the same 
time complying with our obligations under international and domestic 
law. How we treat people in these circumstances will affect the 
credibility of our country in the eyes of the world.

    Chairman Warner. Senator Levin, I understand that you have 
another matter and therefore you will combine your opening 
remarks with a question or two. Am I correct on that?

                STATEMENT OF SENATOR CARL LEVIN

    Senator Levin. I would be happy to do that, but I thought 
we should get the statements first from our witnesses, and then 
if you would allow me to ask questions first I would appreciate 
it.
    Chairman Warner. I would be happy to do that.
    Senator Levin. Thank you, Mr. Chairman.
    First let me thank Attorney General Gonzales and Deputy 
Secretary England very much for being here. The Supreme Court's 
decision in the Hamdan case struck down the military commission 
procedures established by the administration because they did 
not meet the standards of the Uniform Code of Military Justice 
(UCMJ) or those of the Geneva Conventions. Congress has now 
begun the process of determining what needs to be done to 
ensure that our system for trying detainees for crimes meets 
the standards established by the Supreme Court as the law of 
the land.
    We started this process where it should begin, with the 
military lawyers who are most familiar with the rules for 
courts-martial and the history and practice of military 
commissions. These officers also understand the practical 
importance of our adherence to American values and the rule of 
law in the treatment of others. If we torture or mistreat 
persons whom we detain on the battlefield or if we proceed to 
try detainees without fair procedures, we increase the risk 
that our own troops will be subject to similar abuses at the 
hands of others.
    Today we continue our review by hearing the views of senior 
administration officials. Last week a copy of an early draft of 
an administration proposal was leaked to the press and has been 
widely circulated. This draft has now been posted on the 
Washington Post Web site. We understand that this draft is 
still evolving, so I will base my questions on the earlier 
leaked version of the document. I do not know what else to do. 
It is either that or on the evolving version, which apparently 
we have had some briefing on, but I think it is wiser to base 
questions on what we know was a draft rather than to speculate. 
So the draft and the process through which it was developed 
will provide some insight into the administration's approach to 
this issue.
    First, the administration seems to have used the UCMJ as a 
starting point for its draft. While there are extensive 
departures from the UCMJ without any demonstration of practical 
necessity in my judgment, I do welcome the administration's 
apparent acknowledgment that the UCMJ is, in fact, the 
appropriate starting point for military commission legislation.
    As the Supreme Court held in the Hamdan case, the regular 
military courts in our system are the courts-martial 
established by congressional statutes, and a military 
commission can be regularly constituted by the standards of our 
military justice system only if some practical need explains 
deviation from the courts-martial practice.
    Second, the Hamdan court also ruled that ``the rules set 
forth in the Manual for Courts-Martial must apply to military 
commissions unless impracticable,'' to use their words. 
Unfortunately, the administration draft takes just three 
sentences to dismiss both the Manual for Courts-Martial and the 
Military Rules of Evidence. The draft authorizes the Secretary 
of Defense to prescribe procedures, including modes of proof 
for trials by commissions. It then provides that ``evidence in 
a military commission shall be admissible if the military judge 
determines that the evidence is relevant and has probative 
value,'' and further ``hearsay evidence shall be admissible in 
the discretion of the military judge unless the circumstances 
render it unreliable or lacking in probative value.''
    That is virtually unchanged from the evidentiary standard 
that the Supreme Court rejected in the Hamdan case. There are 
undoubtedly parts of the Manual for Courts-Martial and the 
Military Rules of Evidence that would be impractical to apply 
to military commissions for the criminal trial of detainees. In 
accordance with the Supreme Court's ruling, however, these 
areas should be identified by exception rather than by a 
wholesale departure from all procedures and all rules of 
evidence applicable in courts-martial.
    Mr. Chairman, I believe our committee should now ask our 
military lawyers to systematically review the Manual for 
Courts-Martial and the Military Rules of Evidence and make 
recommendations as to the areas in which deviations are needed 
on the basis of the Supreme Court's test of impracticability. 
We already have a Joint Service Committee on Military Justice 
which is responsible for reviewing proposed changes to the UCMJ 
and the Manual for Courts-Martial, and it would be well-suited 
to this new task should our chairman make that decision to 
assign that task or request them to undertake it.
    Third, we have been told that the administration's working 
draft has now been provided to the JAGs of the Military 
Services and that some of their comments have already been 
incorporated into the draft. This is a considerable improvement 
over the manner in which the administration adopted its 
previous order on commissions, when, we have been told, none of 
the recommendations of the JAGs were adopted. But it still puts 
the cart before the horse. Rather than asking the JAGs to 
comment on a draft that was prepared by a limited circle of 
political appointees, the administration should have allowed 
the experts, the military lawyers, to prepare the initial 
drafts of the proposal.
    Mr. Chairman, regardless of whether the administration will 
listen to the concerns of the JAGs on these issues, we should. 
So far this committee has addressed this issue in a systematic, 
deliberative manner. I commend our chairman for doing so and I 
know we are going to continue to do so.
    I hope that as soon as we receive a formal proposal from 
the administration that we will reconvene the panel from our 
first hearing so that those distinguished military officers 
will have a full opportunity to provide us their views on the 
administration proposal and their own recommendations as to how 
we should proceed on this issue.
    Finally, the draft on the Washington Post Web site contains 
some of the same objectionable language regarding coerced 
testimony as the original military order. The draft language 
states: ``No otherwise admissible statement obtained through 
the use of''--and then there is a word that is blacked out--
``may be received in evidence of the military judge finds that 
the circumstances under which the statement was made render it 
unreliable or lacking in probative value.''
    Given the administration's longstanding position on this 
issue, it seems likely--and I will ask the Attorney General 
about this--that the word that has been blacked out is 
``coercion'' and that this provision is intended to expressly 
permit the use of coerced testimony under the circumstances 
identified in that draft. If so, the provision leaves the door 
open for the introduction of testimony obtained through the use 
of techniques such as waterboarding, intimidating use of 
military dogs, and so forth, techniques which our top military 
lawyers have said are inconsistent with the standards of the 
Army Field Manual and Common Article 3 of the Geneva 
Conventions.
    The use of evidence obtained through such techniques in a 
criminal trial would be inconsistent with the Supreme Court's 
ruling in the Hamdan case, inconsistent with the requirements 
of the Geneva Conventions, inconsistent with our values as 
Americans, and not in the best interest of U.S. service men and 
women who one day may be captured in combat. If the 
administration insists on including this provision in its draft 
legislation, I hope that we will reject that language.
    Mr. Chairman, we need to develop a workable framework for 
the trial of detainees by military commissions consistent with 
the ruling of the Supreme Court in Hamdan, and that is what we 
are about. As you say, Mr. Chairman, it is important that we 
develop a workable framework for the trial of detainees by 
military commission. It is important that we be consistent with 
the ruling of the Supreme Court, and it is important that we do 
it right.
    This will be a very difficult endeavor, requiring us to 
address a series of controversial issues, such as the use of 
classified information, the use of hearsay evidence, the 
applicability of Manual for Courts-Martial and the Military 
Rules of Evidence, and the definition of substantive offenses 
triable by military commissions. I hope we will not open up 
other issues, as important as they are, because this task is 
difficult enough. The proper treatment of detainees, the role 
of Combatant Status Review Tribunals, and habeas corpus rights 
of detainees, that are very difficult issues and that were 
debated in the context of last year's Detainee Treatment Act 
(DTA), need to be addressed, but not, it seems to me, if we are 
going to make progress on this critical issue that is before 
us.
    So I hope that we will avoid that pitfall by keeping our 
legislative focus on the issues that we must address, which is 
to establish a workable framework for military commissions.
    Thank you again, Mr. Chairman, for your position that you 
have taken in this matter that we are going to do this thing 
thoroughly, properly, and thoughtfully. I think it is the right 
way to go.
    [The prepared statement of Senator Levin follows:]

                Prepared Statement by Senator Carl Levin

    The Supreme Court's decision in the Hamdan case struck down the 
military commission procedures established by the administration 
because they did not meet the standards of the Uniform Code of Military 
Justice (UCMJ) or those of the Geneva Conventions. Congress has now 
begun the process of determining what needs to be done to ensure that 
our system for trying detainees for crimes meets the standards 
established by the Supreme Court as the law of the land.
    We started this process where it should begin--with the military 
lawyers who are most familiar with the rules for courts-martial and the 
history and practice of military commissions. These officers also 
understand the practical importance of our adherence to American values 
and the rule of law in the treatment of others: if we torture or 
mistreat persons whom we detain on the battlefield, or if we proceed to 
try detainees without fair procedures, we increase the risk that our 
own troops will be subject to similar abuses at the hands of others.
    Today we continue our review by hearing the views of senior 
administration officials--the Attorney General and the Deputy Secretary 
of Defense. Last week, a copy of an early draft of an administration 
proposal was leaked to the press and has been widely circulated. This 
draft has now been posted on the Washington Post Web site. We 
understand that this draft is still evolving. In fact, my staff was 
briefed last night on a more recent draft of the legislation. Because 
this is an internal document that the administration is not yet ready 
to release, however, I will base my questions today on the earlier, 
leaked version of the document.
    Both the draft and the process through which it was developed 
provide insight into the administration's approach to this issue.
    First, despite the testimony of various administration officials 
over the last month that it would be impractical to use the UCMJ as the 
basis for draft legislation, the administration seems to have used the 
UCMJ as a starting point for its draft. While there are extensive 
departures from the UCMJ without any demonstration of practical 
necessity, I welcome the administration's apparent acknowledgment that 
the UCMJ is in fact the appropriate starting point for military 
commission legislation.
    As the Supreme Court held in the Hamdan case, `` `[t]he regular 
military courts in our system are the courts-martial established by 
congressional statutes' '' and ``a military commission `can be 
``regularly constituted'' by the standards of our military justice 
system only if some practical need explains deviations from court-
martial practice.' ''
    Second, the Hamdan Court also ruled that: ``the rules set forth in 
the Manual for Courts-Martial must apply to military commissions unless 
impracticable.''
    Unfortunately, the administration draft takes just three sentences 
to dismiss both the Manual for Courts-Martial and the Military Rules of 
Evidence. The draft authorizes the Secretary of Defense to prescribe 
procedures, including modes of proof for trials by commissions. It then 
provides that ``evidence in a military commission shall be admissible 
if the military judge determines that the evidence is relevant and has 
probative value.'' Moreover, ``Hearsay evidence shall be admissible in 
the discretion of the military judge unless the circumstances render it 
unreliable or lacking in probative value.'' This is virtually unchanged 
from the evidentiary standard that the Supreme Court rejected in the 
Hamdan case.
    There are undoubtedly parts of the Manual for Courts-Martial and 
the Military Rules of Evidence that would be impractical to apply to 
military commissions for the criminal trial of detainees. In accordance 
with the Supreme Court's ruling, however, these areas should be 
identified by exception, rather than by a wholesale departure from all 
procedures and all rules of evidence applicable in courts-martial.
    Mr. Chairman, our committee should now ask our military lawyers to 
systematically review the Manual for Courts-Martial and the Military 
Rules of Evidence and make recommendations as to areas in which 
deviations are needed on the basis of the Supreme Court's test of 
``impracticability.'' We already have a Joint Service Committee on 
Military Justice, which is responsible for reviewing proposed changes 
to the UCMJ and the Manual for Courts Martial and should be well-suited 
to this new task.
    Third, we have been told that the administration's working draft 
has now been provided to the Judge Advocates General (JAGs) of the 
Military Services, and that some of their comments have already been 
incorporated into the draft. This is a considerable improvement over 
the manner in which the administration adopted its previous military 
order on commissions--when, we have been told, none of the 
recommendations of the JAGS were adopted--but it still puts the cart 
before the horse. Rather than asking the JAGs to comment on a draft 
that was prepared by a limited circle of political appointees, the 
administration should have allowed the experts--the military lawyers--
to prepare the initial drafts of the proposal.
    Mr. Chairman--regardless of whether the administration will listen 
to the concerns of the JAGs on these issues, we should. So far, this 
committee has addressed this issue in a systematic, deliberative 
manner, and we should continue to do so. I hope that as soon as we 
receive a formal proposal from the administration, you will reconvene 
the panel from our first hearing, so that these distinguished military 
officers will have a full opportunity to provide us their views on the 
administration proposal and their own recommendations as to how we 
should proceed on this issue.
    Finally, the draft on the Washington Post Web site contains some of 
the same objectionable language regarding coerced testimony as the 
original military order. The draft language states: ``No otherwise 
admissible statement obtained through the use of [word blacked out] may 
be received in evidence if the military judge finds that the 
circumstances under which the statement was made render it unreliable 
or lacking in probative value.'' Given the administration's 
longstanding position on this issue, it seems likely that the word that 
has been blacked out is ``coercion'' and that this provision is 
intended to expressly permit the use of coerced testimony.
    If so, the provision leaves the door open for the introduction of 
testimony obtained through the use of techniques such as waterboarding, 
stress positions, intimidating use of military dogs, sleep deprivation, 
sensory deprivation, forced nudity, and forced wearing of women's 
underwear--techniques which our top military lawyers have said are 
inconsistent with the standards of the Army Field Manual and Common 
Article 3 of the Geneva Conventions. The use of evidence obtained 
through such techniques in a criminal trial would be inconsistent with 
the Supreme Court's ruling in the Hamdan case, inconsistent with the 
requirements of the Geneva Conventions, inconsistent with our values as 
Americans, and not in the best interest of U.S. service men and women 
who may one day be captured in combat. If the administration insists on 
including this provision in its draft legislation, Congress should 
soundly reject the proposal.
    Mr. Chairman, we need to develop a workable framework for the trial 
of detainees by military commission, consistent with the ruling of the 
Supreme Court in the Hamdan case. This will be a very difficult 
endeavor, requiring us to address a series of controversial issues, 
such as the use of classified information, the use of hearsay evidence, 
the applicability of the Manual for Courts-Martial and the Military 
Rules of Evidence, and the definition of substantive offenses triable 
by military commissions.
    We will quickly make this task impossible if we open up other 
issues at this time--such as the proper treatment of detainees, the 
role of Combatant Status Review Tribunals, and the habeas corpus rights 
of detainees--that we fought over long and hard last year in the 
context of the Detainee Treatment Act. Any one of these issues is 
controversial enough that it could sink the entire endeavor of 
establishing a workable framework for military commissions. I hope that 
we will avoid this pitfall by keeping our legislative focus on the 
issues that we must address.
    I look forward to the testimony of our witnesses.

    Chairman Warner. I want to say that I cannot account for 
all of the Web sites and various things that are popping up, 
but the purpose of this hearing is to receive the work in 
progress and the current status of the thinking of the 
administration from the two most qualified people, the Attorney 
General and the Deputy Secretary of Defense, to give us the 
facts. I do not want to start prejudging this situation based 
on what might be in Web sites and other things.
    Senator McCain, you have taken the lead on this from the 
very beginning. Do you have a few opening comments you would 
like to make?
    Senator McCain. No, Mr. Chairman. I would like to repeat 
what I said at the beginning of this odyssey that we are on, 
and that is that we have to look at the best way we can protect 
America as our first and foremost priority. I believe we also 
should comply as much as possible with the United States 
Supreme Court's decision so that we will not have a situation 
evolve where we pass legislation that the Supreme Court then 
bounces back to us. It is not good for the process, it is not 
good for America.
    Third of all, I do not think we can ignore in our 
discussions and in our deliberations the damage that has been 
done to the image of the United States of America because of 
allegations, either true or false, about our treatment of 
prisoners. If we are in a long struggle, part of that struggle 
is a psychological one, and we must remain the Nation that is 
above and different from those of our enemies. I think that is 
important to keep that in mind as we address this issue in its 
specifics.
    But the other fact is that we are in a struggle that 
engages us in every way and without the moral superiority that 
this Nation has enjoyed for a couple of hundred years we could 
do great damage to our effort in winning this struggle that we 
are engaged in.
    I thank you, Mr. Chairman.
    Chairman Warner. Thank you very much, Senator.
    Senator Graham, you likewise have taken a lead on this. Do 
you have any comments for the opening?
    Senator Graham. No, sir.
    Chairman Warner. Any other colleagues seeking recognition?
    Senator Dayton. Mr. Chairman, I just want to salute Senator 
McCain for his comments. I think they are perfectly said.
    Chairman Warner. I thank the Senator.
    Mr. Attorney General, delighted to have you here today, and 
fully recognize that this is an interim report on your part 
and, as Senator Levin suggested, we will certainly have 
additional hearings, at which time you will be given the 
opportunity to come before us.

STATEMENT OF HON. ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE 
                         UNITED STATES

    Mr. Gonzales. Thank you, Mr. Chairman, Senator Levin, and 
members of the committee. I am pleased to appear today on 
behalf of the administration to discuss the elements of 
legislation that we believe Congress should put in place to 
respond to the Supreme Court's decision in Hamdan v. Rumsfeld.
    Let me say a word about process first. As this committee 
knows, the administration has been working hard on a 
legislative proposal that reflects extensive interagency 
deliberations as well as numerous consultations with Members of 
Congress. Our deliberations have included a detailed discussion 
with members of the JAG Corps, and I have personally met twice 
with the JAGs. They have provided multiple rounds of comments 
and those comments will be reflected in the legislative package 
that we plan to offer for Congress's consideration.
    Mr. Chairman, first and foremost, the administration 
believes that Congress should respond to Hamdan by providing 
statutory authorization for military commissions to try 
captured terrorists for violations of the laws of war. 
Fundamentally, any legislation needs to preserve flexibility in 
the procedures for military commissions while ensuring that 
detainees receive a full and fair trial. We believe that 
Congress should enact a new Code of Military Commissions 
modeled on the courts-martial procedures of the UCMJ, that 
would follow immediately after the UCMJ as a new chapter in 
title 10 of the U.S. Code.
    The UCMJ should constitute the starting point for the new 
code. At the same time, the military commission procedures 
should be separate from those used to try our own 
servicemembers, both because military necessity would not 
permit the strict application of all courts-martial procedures 
and because there are relevant differences between the 
procedures appropriate for trying our servicemembers and those 
appropriate for trying the terrorists who seek to destroy us.
    Still, in most respects the new Code of Military Commission 
can and should track closely the UCMJ.
    We would propose that Congress establish a system of 
military commissions presided over by military judges, with 
commission members drawn from the Armed Forces. The prosecution 
and defense counsel would be appointed from the JAG Corps and 
the accused may retain a civilian counsel in addition to 
military defense counsel. Trial procedures, sentencing, and 
appellate review would largely track those currently provided 
under the UCMJ.
    Because of the specific concerns raised by the Supreme 
Court in Hamdan and elsewhere, the new Code of Military 
Commissions should depart in significant respects from the 
existing military commission procedures. In particular, we 
propose that the military judge would preside separate and 
apart from the other commission members and make final rulings 
at trial on law and evidence, just as in courts-martial or 
civilian trials. We would increase the minimum number of 
commission members to 5 and require 12 members for prosecutions 
seeking the death penalty.
    Now, while military commissions will track the UCMJ in many 
ways, commission procedures should depart from the UCMJ in 
those instances where the UCMJ provisions would be 
inappropriate or impractical for use in the trial of unlawful 
terrorist combatants.
    The UCMJ provides Miranda-type protections for U.S. 
military personnel that are broader than the civilian rule and 
that could impede or limit evidence obtained during the 
interrogation of terrorist detainees. I have not heard anyone 
contend that terrorists should be given the Miranda warnings 
required by the UCMJ.
    The military commission procedures also should not include 
the UCMJ's Article 32 investigations, which is a pre-charging 
proceeding that is akin to but considerably more protective 
than a civilian grand jury. Such a proceeding is unnecessary 
before the trial of captured terrorists, who are already 
subject to detention under the laws of war.
    Because military commissions must try crimes based on 
evidence collected everywhere from the battlefields in 
Afghanistan to foreign terrorist safe houses, the commission 
should permit the introduction of all probative and reliable 
evidence, including hearsay evidence. It is imperative that 
hearsay evidence be considered because many witnesses are 
likely to be foreign nationals, who are not amenable to 
process, and other witnesses may be unavailable because of 
military necessity, incarceration, injury, or death.
    The UCMJ Rules of Evidence also provide for circumstances 
where classified evidence must be shared with the accused. I 
believe there is broad agreement that in the midst of the 
current conflict we must not share with captured terrorists the 
highly sensitive intelligence that may be relevant to military 
commission proceedings.
    A more difficult question is posed, however, as to what is 
to be done when that classified evidence constitutes an 
essential part of the prosecution's case. In the courts-martial 
context, our rules force the prosecution to choose between 
disclosing the evidence to the accused or allowing the guilty 
to evade prosecution. It is my understanding that other 
countries, such as Australia, have established procedures that 
allow for the court under tightly defined circumstances to 
consider evidence outside the presence of the accused. The 
administration and Congress must give careful thought as to how 
the balance should be struck for the use of classified 
information in the prosecution of terrorists before military 
commissions.
    Mr. Chairman, the administration also believes that 
Congress needs to address the Supreme Court's ruling in Hamdan 
that Common Article 3 of the Geneva Conventions applies to our 
armed conflict with al Qaeda. The United States has never 
before applied Common Article 3 in the context of an armed 
conflict with international terrorists. Yet because of the 
Court's decision in Hamdan we are now faced with the task of 
determining the best way to do just that.
    Although many of the provisions of Common Article 3 
prohibit actions that are universally condemned, some of its 
terms are inherently vague, as this committee already discussed 
in its recent hearing on the subject. Common Article 3 
prohibits outrages upon personal dignity, a phrase susceptible 
of uncertain and unpredictable application. If left undefined, 
this provision will create an unacceptable degree of 
uncertainty for those who fight to defend us from terrorist 
attack, particularly because any violation of Common Article 3 
constitutes a Federal crime under the War Crimes Act.
    Furthermore, because the Supreme Court has said that courts 
must give respectful consideration and considerable weight to 
the interpretations of treaties by international tribunals and 
other state parties, the meaning of Common Article 3, the 
baseline standard that now applies to the conduct of U.S. 
personnel in the war on terror, would be informed by the 
evolving interpretations of tribunals and governments outside 
the United States.
    We believe that the standards governing the treatment of 
detainees by United States personnel in the war on terror 
should be certain and those standards should be defined clearly 
by U.S. law, consistent with our international obligations.
    One straightforward step that Congress can take to achieve 
that result is to define our obligations under Common Article 3 
by reference to the U.S. constitutional standard already 
adopted by Congress. Last year, after a significant public 
debate, Congress adopted the McCain amendment as part of the 
DTA. That amendment prohibits cruel, inhumane, or degrading 
treatment or punishment, as defined by reference to the 
established meaning of our Constitution. Congress rightly 
assumed that the enactment of the DTA settled questions about 
the baseline standard that would govern the treatment of 
detainees.
    The administration believes that we owe it to those called 
upon to handle detainees in the war on terror to ensure that 
any legislation addressing the Common Article 3 issue will 
bring clarity and certainty to the War Crimes Act, and the 
surest way to achieve this in our view is for Congress to set 
forth a definite and clear list of offenses serious enough to 
be considered war crimes punishable as violations of Common 
Article 3 under 18 U.S.C. 2441.
    The difficult issues raised by the Court's pronouncement on 
Common Article 3 are ones that the political branches need to 
consider carefully as they chart a way forward after Hamdan. I 
look forward to discussing these subjects with the committee 
this afternoon.
    [The prepared statement of Attorney General Gonzales 
follows:]

             Prepared Statement by Hon. Alberto R. Gonzales

    Thank you, Mr. Chairman, Senator Levin, and members of the 
committee. I am pleased to appear here today on behalf of the 
administration to discuss the elements of legislation that we believe 
Congress should put in place to respond to the Supreme Court's decision 
in Hamdan v. Rumsfeld.
    Before I get into the details of the legislation, let me say a word 
about process. As this committee knows, the administration has been 
working hard on a legislative proposal that we have developed through 
extensive interagency deliberations, as well as numerous consultations 
with Members of Congress. Our deliberations have included detailed 
discussion with and input from the military lawyers in all branches of 
the Armed Services, including the members of the Judge Advocate 
General's (JAG) Corps. I have personally met with the JAGs on two 
occasions to discuss the elements of the legislative proposal. They and 
their staffs have provided multiple rounds of comments on all aspects 
of the proposed legislative language, and they have been active 
participants in our deliberations and discussions. Their comments have 
been heard, and many are reflected in the legislative package that we 
plan to offer for Congress's consideration.

                     military commission procedures

    Mr. Chairman, first and foremost, the administration believes that 
Congress should respond to the Supreme Court's decision in Hamdan by 
providing statutory authorization for military commissions to try 
captured terrorists for violations of the laws of war. Fundamentally, 
any legislation needs to preserve flexibility in the procedures for 
military commissions while ensuring that detainees receive a full and 
fair trial.
    We believe that Congress should enact a new Code of Military 
Commissions, modeled on the court-martial procedures of the Uniform 
Code of Military Justice (UCMJ) but adapted for use in the special 
context of military commission trials of terrorist unlawful combatants. 
To this end, we would propose that Congress create a new chapter for 
military commission procedures in title 10 of the U.S. Code, which 
would follow immediately after the UCMJ. We have carefully reviewed the 
procedures of the UCMJ, and we believe that dozens of articles of the 
UCMJ have relevance for military commissions and should be used as the 
starting point for developing the new Code of Military Commissions.
    At the same time, we believe it is important that the military 
commission process for unlawful terrorist unlawful combatants be 
separate from the courts-martial process that is used to try our own 
servicemembers, both because military necessity would not permit the 
strict application of all courts-martial procedures, and because there 
are relevant differences between the procedures appropriate for trying 
our servicemembers and those appropriate for trying the terrorists who 
seek to destroy us.
    Still, in most respects, the new Code of Military Commissions can 
and should track closely the procedures and structure of the UCMJ. We 
would propose that Congress establish a system of military commissions, 
presided over by a military judge, with commission members drawn from 
the Armed Forces. The prosecution and defense counsel would be 
appointed from the JAG Corps, with an opportunity for the appointment 
of Justice Department prosecutors and with the ability of the accused 
to retain a civilian counsel, in addition to assigned military defense 
counsel. Trial procedures, sentencing, and appellate review would 
largely track those currently provided under the UCMJ (albeit with 
Federal court review in the DC Circuit, as provided for under the 
Detainee Treatment Act (DTA) of 2005.)
    Because of the specific concerns raised by the Supreme Court in 
Hamdan, and because of comments from Members of Congress and from 
within the Department of Defense (DOD), we would propose that the new 
Code of Military Commissions depart in significant respects from the 
existing military commission procedures established by the President in 
2001 and 2002.
    In particular, we propose that the presiding officer would be a 
certified military judge with the traditional authority of a judge to 
make final rulings at trial on law and evidence, just as in courts-
martial. As with courts-martial, the military judge would not be a 
voting member of the commission.
    We would also propose to increase the minimum number of commission 
members to 5, from 3, and to require 12 members of the commission for 
any case in which the death penalty is sought. As is the case under the 
current military commission procedures, and just as in courts-martial, 
the Government would bear the burden of proving the accused's guilt 
beyond a reasonable doubt, and a conviction would require a vote of 
two-thirds of the commission members in a non-death penalty case. As 
under the UCMJ, the death penalty would require a unanimous vote of the 
commission members present.
    In addition, we would propose to create a formal military appellate 
process that parallels the appellate process under the UCMJ. We propose 
that Congress establish a Court of Military Commission Review within 
the DOD to hear appeals on questions of law. We would retain the 
judicial review of final military commission judgments in the same 
Article III court, the DC Circuit, that currently would hear those 
judgments under the DTA. We would propose, however, to give all 
convicted detainees an appeal as of right to the DC Circuit, regardless 
of the length of their sentence, as opposed to the current system under 
the DTA of discretionary review for sentences under 10 years. The 
Supreme Court could review the decisions of the DC Circuit through 
petitions for certiorari.
    Although military commissions will track the UCMJ in many ways, we 
also believe that the military commission procedures should depart from 
the court-martial procedures in those instances where applying the 
UCMJ's provisions would be inappropriate or impractical for use in the 
trial of terrorist unlawful combatants.
    The UCMJ provides Miranda-type protections for U.S. military 
personnel that are broader than the civilian rule and that could impede 
or limit the collection of intelligence during the interrogation of 
terrorist detainees. I am not aware of anyone who contends that 
terrorist unlawful combatants must be given Miranda warnings before 
interrogations. The Code of Military Commissions therefore would not 
include such Miranda requirements, but at the same time it does provide 
a military defense counsel to each accused as soon as charges are 
brought and recognizes the accused's privilege against self-
incrimination during the actual commission proceeding.
    The military commission procedures also should not include the 
UCMJ's Article 32 investigation, which is a pre-charging proceeding 
that is akin to, but considerably more protective than, the civilian 
grand jury. Such a proceeding is appropriate when applied to U.S. 
military personnel, but is unnecessary and inappropriate for the trial 
of captured terrorists, who are already subject to detention under the 
laws of war.
    Because military commissions must try crimes based on evidence 
collected everywhere from the battlefields in Afghanistan to foreign 
terrorist safe houses, we believe that the Code of Military Commissions 
should provide for the introduction of all probative evidence, 
including hearsay evidence where such evidence is reliable. Like a 
civilian judge, the military judge may exclude such evidence if the 
probative value is substantially outweighed by unfair prejudice. But we 
believe it is important that the Code of Military Commissions provide a 
standard of admissibility that is broader than that applied in court-
martial proceedings.
    Court-martial rules of evidence track those in civilian courts, 
reflecting the fact that the overwhelming majority of court-martial 
prosecutions concern not battlefield conduct, but everyday violations 
of the military code of conduct. By contrast, military commissions must 
permit the introduction of a broader range of evidence, including 
hearsay statements, because many witnesses are likely to be foreign 
nationals who are not amenable to process, and other witnesses may be 
unavailable because of military necessity, incarceration, injury, or 
death.
    The UCMJ rules of evidence also provide for circumstances where 
classified evidence must be shared with the accused. I believe there is 
broad agreement that in the midst of the current conflict, we must not 
share with captured terrorists the highly sensitive intelligence that 
may be relevant to military commission proceedings. A more difficult 
question is posed, however, as to what is to be done when that 
classified evidence constitutes an essential part of the prosecution's 
case.
    In the court-martial context, our rules force the prosecution to 
choose between disclosing the evidence to the accused or allowing the 
guilty to evade prosecution. It is my understanding that other 
countries, such as Australia, have established procedures that allow 
for the court, under tightly defined circumstances, to withhold 
evidence from the accused that would otherwise be subject to 
disclosure. Neither those procedures, nor any procedure under 
consideration, would permit ``secret trials'' outside the presence of 
the accused. Nonetheless, it may be possible to ensure fair and 
accurate commissions proceedings, while protecting our Nation's most 
sensitive information from its enemies. The administration and Congress 
must give careful thought as to how the balance should be struck for 
the prosecution of terrorists before military commissions.

               common article 3 of the geneva conventions

    Mr. Chairman, the administration also believes that Congress needs 
to enact legislation in light of the Supreme Court's ruling in Hamdan 
that Common Article 3 of the Geneva Conventions applies to our armed 
conflict with al Qaeda. It is fair to say that the United States 
military has never before been in a conflict in which it applied Common 
Article 3 as the governing detention standard. The military has been 
trained to apply the special protections that the Geneva Conventions 
apply to regular and lawful combatants who are captured as prisoners of 
war. But we do not train specifically and separately to Common Article 
3, and the United States has never before applied Common Article 3 in 
the context of an armed conflict with international terrorists.
    Yet because of the Court's decision in Hamdan, we are now faced 
with the task of determining the best way to do just that. Although 
many of the provisions of Common Article 3 prohibit actions that are 
universally condemned, such as ``murder,'' ``mutilation,'' ``torture,'' 
and the ``taking of hostages,'' it is undeniable that some of the terms 
in Common Article 3 are inherently vague, as this committee already 
discussed in its recent hearing on the subject.
    For example, Common Article 3 prohibits ``[o]utrages upon personal 
dignity, in particular, humiliating and degrading treatment,'' a phrase 
that is susceptible of uncertain and unpredictable application. If left 
undefined by statute, the application of Common Article 3 will create 
an unacceptable degree of uncertainty for those who fight to defend us 
from terrorist attack, particularly because any violation of Common 
Article 3 constitutes a Federal crime under the War Crimes Act.
    Furthermore, the Supreme Court has said that in interpreting a 
treaty provision such as Common Article 3, the meaning given to the 
treaty language by international tribunals must be accorded 
``respectful consideration,'' and the interpretations adopted by other 
state parties to the treaty are due ``considerable weight.'' 
Accordingly, the meaning of Common Article 3--the baseline standard 
that now applies to the conduct of U.S. personnel in the war on 
terror--would be informed by the evolving interpretations of tribunals 
and governments outside the United States.
    We believe that the standards governing the treatment of detainees 
by United States personnel in the war on terror should be certain, and 
that those standards should be defined clearly by U.S. law, consistent 
with our international obligations.
    Congress can help by defining our obligations under section 1 of 
Common Article 3, with the exception of the obligations imposed by 1(b) 
and 1(d), by reference to the U.S. constitutional standard already 
adopted by Congress in the McCain Amendment, which we believe to be a 
reasonable interpretation of the relevant provisions of Common Article 
3.
    Last year, after a significant public debate on the standard that 
should govern the treatment of captured al Qaeda terrorists, Congress 
adopted the McCain amendment, part of the DTA. That amendment prohibits 
``cruel, inhuman, or degrading treatment or punishment,'' as defined by 
reference to the established meaning of our Constitution, for all 
detainees held by the United States, regardless of nationality or 
geographic location. Indeed, the same provision was used to clarify 
similarly vague provisions in another treaty--the Convention Against 
Torture. Congress rightly assumed that the enactment of the DTA settled 
questions about the baseline standard that would govern the treatment 
of detainees by the United States in the war on terror. We view the 
standard established by the McCain amendment as consistent with, and a 
useful clarification of, our obligations under the relevant provisions 
of Common Article 3.
    Defining the terms in Common Article 3, however, is not only 
relevant in light of our treaty obligations, but is also important 
because the War Crimes Act, 18 U.S.C.  2441, makes any violation of 
Common Article 3 a felony offense.
    The administration believes that we owe it to those called upon to 
handle detainees in the war on terror to ensure that any legislation 
addressing the Common Article 3 issues created by the Hamdan decision 
will bring clarity and certainty to the War Crimes Act. The surest way 
to achieve that clarity and certainty, in our view, is for Congress to 
set forth a definite and clear list of offenses serious enough to be 
considered ``war crimes,'' punishable as violations of Common Article 3 
under 18 U.S.C.  2441.
    The difficult issues raised by the Court's pronouncement on Common 
Article 3 are ones that the political branches need to consider 
carefully as they chart a way forward after Hamdan.
                   judicial review of detainee claims
    Finally, Mr. Chairman, the administration believes that any 
legislation in this area should also clarify how the judicial review 
provisions of the DTA apply. Some have argued that Hamdan makes the DTA 
inapplicable to the hundreds of habeas petitions brought by the 
Guantanamo detainees to challenge their detention as enemy combatants. 
Although we disagree with that reading, we think that the legislation 
should make clear that the detainees may not challenge their detention 
or trial before a final judgment of a military commission or a final 
order of a Combatant Status Review Tribunal. Moreover, we think that, 
once such a final judgment or order is in place, the detainees should 
be able to raise challenges only as provided for in the DTA itself.
    We believe that that was Congress's original intent under the DTA. 
We also believe that it makes sense, as in the civilian justice system, 
to restrict the accused's ability to pursue appellate remedies until 
after the trial has been completed and after the commission has 
returned a guilty verdict on one or more charges.
    I look forward to discussing these subjects with the committee this 
morning.
    Thank you, Mr. Chairman.

    Chairman Warner. Thank you very much, Mr. Attorney General. 
It seems to me to be a statement that is a good way to start 
this hearing. You have laid it out, I think with some clarity 
here now.
    Mr. Gonzales. Thank you, Mr. Chairman.
    Chairman Warner. Secretary England.

   STATEMENT OF HON. GORDON R. ENGLAND, DEPUTY SECRETARY OF 
                            DEFENSE

    Secretary England. Chairman Warner, Senator Levin, members 
of the committee: First of all, thanks for the opportunity to 
be here. This is indeed a crucial subject. This is also a 
critical time for America. We are in a real and a daily war 
against terrorist adversaries who are determined to destroy our 
way of life and that of our friends and allies. The terrorists 
are relentless. They oppose the very notion of freedom and 
liberty and they are committed to using every possible means to 
achieve their end.
    America did not choose this fight and we do not have the 
option of walking away. As a Nation, we must be clear in our 
thoughts, candid in our words, and rock solid in our resolve.
    The security challenges this Nation faces in the wake of 
September 11 are both complex and in some respects 
fundamentally new. The Supreme Court's Hamdan decision provides 
an opportunity for the executive and legislative branches to 
work together to solidify a legal framework for the war we are 
in and for future wars. The legal framework we construct 
together should take the law of war, not domestic civilian 
criminal standards of law and order, as its starting point.
    I propose the following seven criteria against which any 
proposed legislation should be measured.
    First, all measures adopted should reflect American values 
and standards.
    Second, persons detained by the Armed Forces should always 
be treated humanely, without exception.
    Third, our men and women in uniform must have the ability 
to continue to fight and win wars, including this war on 
terror. The Nation must maintain the ability to detain and 
interrogate suspected terrorists, to continue to detain 
dangerous combatants until the cessation of hostilities, and to 
gather and protect critical intelligence.
    Fourth, war criminals need to be prosecuted and in a full 
and fair trial.
    Fifth, our soldiers, sailors, airmen, marines, and Coast 
Guardsmen need adequate legal protections, as do the civilians 
who support them.
    Sixth, the rules must be clear and transparent to everyone.
    Lastly, we should be mindful of the impact of our 
legislation on the perceptions of the international community.
    I thank this committee for taking time to thoughtfully 
consider this very important set of issues, and I thank you for 
your strong, unwavering support for the brave men and women 
serving every day at home and abroad to protect and defend this 
truly great Nation.
    [The prepared statement of Secretary England follows:]

               Prepared Statement by Hon. Gordon England

    Chairman Warner, Senator Levin, members of the committee, it is an 
honor to appear here today with my friends and colleagues, especially 
the Honorable Alberto Gonzales.
    I do thank this committee for the invitation to meet with you to 
discuss the implications of the Supreme Court's Hamdan decision. As we 
work together to develop the additional legislation our Nation needs, 
let me provide some perspective from the Department of Defense about 
the broader national security context for these discussions and 
decisions.
    This is a critical time for America. We are in a real and deadly 
war against terrorist adversaries who are determined to destroy our way 
of life--and that of our friends and allies. On September 11, 2001, 
terrorists attacked the World Trade Center and the Pentagon, and took 
the lives of other heroic Americans on Flight 93. The terrorists killed 
3,000 people of 60 different nationalities that day. They would have 
killed many more, if they had had the means to do so, and they are 
still trying. These terrorists are relentless, they oppose the very 
notion of freedom and liberty, and they are committed to using every 
possible means to achieve their ends.
    America did not choose this fight--and we don't have the option of 
walking away. Only if America continues to provide global leadership in 
the fight against these terrorists can we succeed.
    The security challenges this Nation faces in the wake of September 
11, 2001, are both complex and, in some respects, fundamentally new, 
and in many ways the Nation is still grappling with how best to address 
them.The terrorists our forces detain are not common criminals. At the 
same time, they are not lawful enemy combatants--among other things, 
they do not fight as members of the Armed Forces of sovereign states, 
they do not have a regular command structure, they do not wear 
uniforms, they do not carry their arms openly, and they do not obey the 
laws of war.
    The Supreme Court's Hamdan ruling provides the opportunity for the 
executive and legislative branches to work together to solidify a legal 
framework for the war we are in, and for future wars.
    A major part of America's effort in the war on terror is the 
fearless warfighting by our courageous men and women in uniform in Iraq 
and Afghanistan, but in fact, Iraq and Afghanistan are only part of a 
larger struggle. The perceptions and views of people of all nations are 
critical to the success of our campaign against al Qaeda and its 
affiliates. People will listen to our words--and watch our actions--and 
decide, and their decisions could be very important in tipping the 
scales.
    We also need to be conscious that any new rules put in place today 
may live on for many years to come. Just as the global context has 
changed markedly over the last 50 years, we need to consider how well 
the rules deemed most applicable today will endure.
    It is profoundly important that we come together as a U.S. 
Government--that we send a unified signal to the rest of the world 
about this Nation's determination, commitment, and resolve to push 
forward in the war on terror. We must be clear in our thoughts, candid 
in our words, and rock solid in our resolve.
    The legal framework we construct together should take the law of 
war, not domestic civilian criminal standards of law and order, as its 
starting point.
    I propose the following seven criteria against which any proposed 
legislation should be measured:

         All measures adopted should reflect American values and 
        standards.
         Persons detained by the Armed Forces should always be treated 
        humanely, without exception.
         Our men and women in uniform must have the ability to 
        continue to fight and win wars, including this war on terror. 
        The Nation must maintain the ability to detain and interrogate 
        suspected terrorists, to continue to detain dangerous 
        combatants until the cessation of hostilities, and to gather 
        and protect critical intelligence.
         War criminals need to be prosecuted--in a full and fair 
        trial.
         Our soldiers, sailors, airmen, marines, and coastguardsmen 
        need adequate legal protections, as do the civilians who 
        support them.
         The rules must be clear and transparent to everyone.
         We should be mindful of the impact of our legislation on the 
        perceptions of the international community.

    I thank this committee for taking time to thoughtfully consider 
this very important set of issues. I thank you for your strong, 
unwavering support for the brave men and women serving every day, at 
home and abroad, to protect and defend this truly great Nation.

    Chairman Warner. Thank you, Mr. Secretary. I think your 
statement is very helpful and we are off to a good start.
    I put my first question to you, Secretary England, which is 
in reference to the Army Field Manual. It seems to me that that 
has some relevance to those of us, both in the administration 
and in Congress, that are working towards drawing up this 
statute. It would be in the interest of all parties to have 
that before we finalize such proposals as we write into law.
    Secretary England. Mr. Chairman, we do have an Army Field 
Manual today. It is the version of the Army Field Manual I 
think that goes all the way back to 1992.
    Chairman Warner. I am familiar with that, yes.
    Secretary England. We are in the process of frankly 
updating that. I believe we are very close. But each time it 
seems that something else comes up--we need to consider in this 
case, of course, it is the Hamdan decision.
    I would expect we would now finalize it when this law is 
complete and on the books.
    Chairman Warner. You would want the law to be adopted by 
Congress before you promulgate the revised edition, is that 
your thought?
    Secretary England. That is at least my initial thought, 
Senator. I guess I have to consider it. But sitting here, it 
would seem logical to me, based on where we are today, to 
complete this discussion of Common Article 3 and to make sure 
we are all in agreement in terms of how we go ahead. That said, 
I will tell you we are very close on the field manual. But at 
this point that would be my initial reaction. I would be happy 
to get back with you and discuss it further, but at least 
initially that would seem logical to me, Senator.
    Chairman Warner. I think it does require further discussion 
and consideration, because I anticipate that at some point in 
time--and let us work back from the fact that we are out of 
here on the 30th of September, and it is the desire of this 
committee, and we are supported by the bipartisan leadership of 
the Senate, to get this bill enacted by the Senate and 
hopefully over to the House, such that it can become law.
    The men and women of the Armed Forces need this. Now, I 
will just take this under advisement. I will accept your 
statement as it is now and we will discuss this further.
    I just wonder what view you might have on that, Attorney 
General, the desirability of waiting until we are finished on 
this prior to finalizing the revision of the field manual.
    Mr. Gonzales. Sir, I am not privy to the process in terms 
of the finalization of the Army Field Manual. I can only 
imagine, however, that those involved in that process have 
likewise been involved in the process of this legislation, and 
we have received and are continuing to receive input about what 
these procedures for the military commissions should look like, 
and we have received and are continuing to receive input with 
respect to our obligations under Common Article 3.
    So I do not know whether or not we need to have one 
completed before the other, quite frankly. I think--and I will 
obviously defer to this committee in terms of what you need. 
But I am not sure that they are necessarily intertwined in 
terms of moving forward.
    Chairman Warner. Let us all deliberate on this.
    Did you wish to have anything further to say, Secretary 
England?
    Secretary England. No, sir, except that I did not 
understand the relationship between this field manual and this 
pending legislation. I guess I still do not understand that 
relationship. We are working on the field manual.
    Chairman Warner. I understand that.
    Secretary England. That was really an independent action 
from this legislation. So I am not quite sure how they are 
connected. I mean, if they are related then we will definitely 
work those in some coherent manner.
    Chairman Warner. I think there is a relationship, and we 
will discuss this further.
    Secretary England. Okay, we will be happy to do that, Mr. 
Chairman.
    Chairman Warner. Let us turn to the question of the 
classified information. The present military commission rules 
allow the appointing authority or the presiding officer of a 
commission to exclude the accused and his civilian counsel from 
access to evidence during proceedings that these officials 
decide to close to protect classified information or for other 
named reasons.
    In your opinion, can a process that passes constitutional 
and statutory muster--and that is the bottom line; we have to 
pass that. We do not wish to have a Federal court set aside 
this law once we put it in action. So I repeat: In your 
opinion, can a process that passes constitutional and statutory 
muster be constructed without giving the accused and counsel 
possessing the necessary clearances access to such material in 
some form?
    Mr. Gonzales. Of course, Mr. Chairman, we are not proposing 
that classified information be denied to cleared counsel. I 
think it would be an extraordinary case where classified 
information would be used and would not be provided to the 
accused. Based upon conversations that have occurred with you 
individually and I understand based upon a hearing that 
occurred in the Senate Judiciary Committee, I think it is 
fairly obvious that this is one of the remaining points of 
discussion, major points of discussion, within the 
administration, is how to resolve this issue.
    I think we all agree that we cannot provide terrorists 
access to classified information. So how do we go about moving 
forward with the prosecution? Because sure, we have the option 
to continue to hold them indefinitely, for the duration of the 
hostilities, but we may choose to bring someone to justice and 
the classified information may be crucial to that prosecution.
    So there are various things that are being discussed with 
the administration. We could have, for example, the military 
judge make a finding that moving forward without providing the 
classified information to the accused is absolutely warranted. 
We could have a finding that the military judge--the military 
judge could make a finding that substitutes or summaries are 
inadequate. We could require the military judge to make a 
finding that moving forward without having the accused present 
is warranted given the circumstances.
    So there are various things I think that we can do, certain 
procedures that have to be followed, so that we make this an 
extraordinary case. But, Mr. Chairman, it cannot be the case 
that in making a decision to move forward with the prosecution 
that we have to provide classified information to a terrorist. 
So this is an issue that we are wrestling with, there is no 
question about that, and I think that this is something we will 
value the committee's input.
    Chairman Warner. We have not reached a final decision on 
how we are going to handle it, but I pointed out I think the 
importance of having this statute be able to survive any 
subsequent Federal court review process.
    Mr. Gonzales. If I could make two final points. Again, the 
counsel would have access, cleared counsel would have access to 
the information, and there could be a mechanism again where we 
could provide either redacted summaries or something as a 
substitute to the accused, that would not jeopardize the 
national security of our country.
    Chairman Warner. On the subject of hearsay evidence, given 
the difficulties of locating and obtaining witnesses in cases 
of this sort, do you believe that it would be reasonable to 
admit hearsay if it were not coerced and in the opinion of a 
military judge or other judicial officer there were sufficient 
guarantees for its veracity? In your opinion, would the 
admission of such evidence raise constitutional questions?
    Mr. Gonzales. In my judgment it would be permissible. The 
admission of hearsay evidence has been used in other 
international tribunals in Yugoslavia and Rwanda. This is a 
different kind of conflict. It is an ongoing kind of conflict, 
where oftentimes it is hard to verify or hard to have firsthand 
access to the witness or the evidence. The witness may be out 
of the country and therefore we cannot serve process. For 
security reasons we may not want to bring the witness into 
Guantanamo. The witness may be dead. The witness may be on the 
front line, and do we want to be bringing our soldiers off the 
front lines?
    So I think that there are very good reasons, practical 
reasons, necessary reasons, to deviate from the UCMJ with 
respect to the use of hearsay. It is vitally important, 
however, that the information be probative and that it be 
reliable. These decisions will be made by military judges who 
have been trained, and I think we all have great confidence in 
their wisdom and judgment.
    But I think the use of hearsay is absolutely important in 
these kind of proceedings.
    Chairman Warner. Thank you very much.
    Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    The Supreme Court in Hamdan held that Common Article 3 of 
the Geneva Conventions applies to the conflict with al Qaeda. 
Secretary England, on July 7 you issued a memorandum 
acknowledging this holding and said that the Supreme Court has 
determined that Common Article 3 applies as a matter of law to 
the conflict with al Qaeda. The Court found that the military 
commissions as constituted by the DOD are not consistent with 
Article 3.
    Then you went on to say the following, that ``all DOD 
personnel adhere to these standards.'' Do you stand by that 
memorandum?
    Secretary England. Yes, sir, I do.
    Senator Levin. Attorney General Gonzales, do you agree with 
that memorandum?
    Mr. Gonzales. Sir, I cannot admit to having read the entire 
thing. But I agree with what you have read, yes, sir.
    Senator Levin. Would you agree, in light of the Supreme 
Court's ruling, that legislation authorizing the use of the 
commissions and procedures for such comm