[Senate Hearing 109-949]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 109-949
 
THE AUTHORITY TO PROSECUTE TERRORISTS UNDER THE WAR CRIME PROVISIONS OF 
                                TITLE 18

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                       WEDNESDAY, AUGUST 2, 2006

                               __________

                          Serial No. J-109-103

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director







                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   191
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................   193
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Black, Scott C., Major General, Judge Advocate General, U.S. 
  Army, Washington, D.C..........................................     7
Bradbury, Steven, Acting Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice, Washington, D.C..........     4
MacDonald, Bruce, Rear Admiral, Judge Advocate General, U.S. 
  Navy, Washington, D.C..........................................     8
Myers, Richard B., General, former Chairman, Joint Chiefs of 
  Staff, Washington, D.C.........................................     6
Rives, Jack, Major General, Judge Advocate General, U.S. Air 
  Force, Washington, D.C.........................................     9
Sandkuhler, Kevin M., Brigadier General, Director, Judge Advocate 
  Division, U.S. Marine Corps, Washington, D.C...................    10

                         QUESTIONS AND ANSWERS

Responses of Scott Black to questions submitted by Senators 
  Specter, Durbin, Feinstein, and Leahy..........................    33
Responses of Steven Bradbury to questions submitted by Senators 
  Leahy, Durbin, Specter, Feinstein, and Kyl.....................    61
Responses of Bruce MacDonald to questions submitted by Senators 
  Specter, Durbin, Feinstein, and Leahy..........................    81
Responses of Richard B. Myers to questions submitted by Senators 
  Specter and Feinstein..........................................    97
Responses of Jack Rives to questions submitted by Senators 
  Specter, Durbin, Feinstein, and Leahy..........................    99
Responses of Kevin M. Sandkuhler to questions submitted by 
  Senators Leahy, Durbin, Specter, and Feinstein.................   128

                       SUBMISSIONS FOR THE RECORD

Black, Scott C., Major General, Judge Advocate General, U.S. 
  Army, Washington, D.C., prepared statement.....................   183
Bradbury, Steven, Acting Assistant Attorney General, Office of 
  Legal Counsel, Department of Justice, Washington, D.C., 
  prepared statement.............................................   186
MacDonald, Bruce, Rear Admiral, Judge Advocate General, U.S. 
  Navy, Washington, D.C., prepared statement.....................   195
Rives, Jack, Major General, Judge Advocate General, U.S. Air 
  Force, Washington, D.C., prepared statement....................   198
Sandkuhler, Kevin M., Brigadier General, Director, Judge Advocate 
  Division, U.S. Marine Corps, Washington, D.C., prepared 
  statement......................................................   201


THE AUTHORITY TO PROSECUTE TERRORISTS UNDER THE WAR CRIME PROVISIONS OF 
                                TITLE 18

                              ----------                              


                       WEDNESDAY, AUGUST 2, 2006

                              United States Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 226, Dirksen Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Kyl, Graham, Leahy, Kennedy, Feinstein, 
and Feingold.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen.
    The Judiciary Committee will now proceed with our hearing 
following the decision of the Supreme Court of the United 
States in Hamdan v. Rumsfeld, where we will take up the issue 
of legislation to comply with the Supreme Court's ruling to 
specify the war crimes, which are covered by Common Article 3 
of the Geneva Convention.
    The provisions of 18 U.S. Code Sec. 2441(c)(1) already 
incorporate the essential provision of Common Article 3 which 
requires humane treatment. In accordance with the requirements 
of the criminal law that there be specification, it is the 
responsibility of Congress to delineate what the specific 
offenses are.
    That specification of particularity is required by our 
criminal law in order to give those charged an adequate 
opportunity to defend themselves. We have already had some 
authoritative judgment that the proceedings at Guantanamo have 
violated Article 3.
    Major General Jack Rives, who will be testifying here 
today, testified on July 13, 2005: ``Some of the techniques 
that have been authorized to be used in the past have violated 
Common Article 3,'' and it is up to the Congress of the United 
States, under the provisions of Article 1, Section 8, to deal 
with capture on land and sea and to specify what is covered by 
``war crimes.''
    There has been a draft circulated, not officially, but 
available on the Internet which has disclosed, or at least 
reportedly disclosed, which provisions are in a draft bill 
being circulated by the administration.
    One of the provisions which is quoted today would give the 
Secretary of Defense the authority to add crimes under the 
Military Court's jurisdiction, a military court to be set up by 
an act of Congress.
    At the outset, I have strong reservations about whether 
that authority can be undertaken by the Secretary of Defense, 
where there can be that kind of a delegation by the Congress of 
the United States. I, frankly, very much doubt it.
    We do have a provision in the Criminal Code on war crimes. 
I think it necessary for the Congress to take up a specific 
kind of conduct to be covered by the tribunal, however that is 
established, but we will have to give very serious thought to 
whether it is doable to have that delegated, to have the 
Secretary of Defense make those additions.
    With respect to the provisions of the tribunal themselves, 
the Supreme Court has apparently left considerable latitude. I 
say ``apparently,'' because you never know, until the next 
decision by the Supreme Court, if there are reasons for the 
limitations.
    But there are some matters which are of substantial 
concern. The issue of hearsay, for example, whether there may 
be standards established on reliability of hearsay.
    The issue of classified information, which some say should 
be made available to the defendant's lawyer but not to the 
defendants themselves. That raises the issue of the right of 
confrontation.
    We do not deal with, necessarily, constitutional rights of 
confrontation in the Fifth Amendment, but a matter of basic 
fairness. Perhaps that can be handled analogous to the 
Confidential Information Protection Act. That is something we 
will have to look into.
    The draft circulated would prohibit evidence obtained by 
torture. That seems rather fundamental. If it permits evidence 
to come in under coerced confessions, that is a question which 
we will have to take up.
    But it has long been the rule in judicial proceedings in 
the United States that evidence obtained by coerced confessions 
would not be admissible, both on grounds of unfairness and on 
grounds of unreliability.
    I have discussed these issues with Chairman John Warner, 
who will be working coordinately with the Armed Services 
Committee. We have been working with the administration on 
preliminary analysis, and we face a very important task to 
protect the security of the United States in dealing with 
terrorism and establish procedures to satisfy the Supreme 
Court.
    My red light just went on, so I will now yield to the 
distinguished Ranking Member, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    The Chairman has convened this hearing today to consider 
the government's authority to prosecute terrorists under the 
War Crimes Act.
    It has long been open to the administration to charge 
suspected terrorists, including those imprisoned at Guantanamo 
Bay, with Federal crimes.
    In addition to the War Crimes Act, Federal law provides 
criminal penalties for terrorism, torture, hostage-taking, and 
other acts that are considered grave breaches of the Geneva 
Conventions, irrespective of where these acts occurred. And 
unlike the international law of war, of course, Federal law 
allows you to prosecute for conspiracy, so there is ample 
authority under Federal law for the prosecution of 
international terrorists.
    But for various reasons--some good, and unfortunately some 
bad--the administration has made little use of that authority 
against suspected terrorists. As far as I can tell, the 
Ashcroft Justice Department and the Gonzales Justice Department 
have yet to file a single charge, not even one, against anyone 
for violation of the War Crimes Act. Nor has the administration 
made use of the processes and procedures set forth in the 
Manual for Courts Martial and the Uniform Code of Military 
Justice.
    Instead, the Bush-Cheney administration has pursued a two-
prong strategy. First, with respect to the vast majority, the 
700-plus prisoners at Guantanamo and the unidentified prisoners 
held in secret prisons overseas, the administration has frankly 
stated it has no interest in trying them in any court, civilian 
or military. I disagree with them on their conclusion, but you 
at least have to respect the honesty of their statements, 
cynical as it might be.
    Second, the administration has decided to bring a small 
number of detainees before military commissions. Now, I have no 
objection, in principle, to the use of military commissions.
    Indeed, I introduced legislation to authorize procedures 
for military commissions back in February of 2002. I held 
hearings in 2001 on the issue. I asked the administration to 
work with us on it. They said, no, they did not want to. They 
said they had a unilateral, and secret, procedure they were 
going to follow.
    Of course, what happens, instead of having military 
commissions that would have withstood the test of law, that go-
it-alone approach had a predictable result: an embarrassing 
defeat in the U.S. Supreme Court. Not a single suspected 
terrorist has been held accountability by a military commission 
in the last 6 years.
    The court's landmark separation of powers decision in 
Hamdan compelled the Bush-Cheney administration to finally come 
to Congress to request authorizing legislation.
    Mr. Chairman, I was encouraged to read the testimony that 
the uniformed witnesses provided before the Armed Services 
Committee which indicated that the starting point for 
legislation should be the well-established rules governing 
courts martial. I agree.
    But when the administration's civilian lawyers, the people 
that do not actually have to do this, came before the 
committee, they, instead, argued that Congress should simply 
rubber stamp the problematic procedures that the Supreme Court 
had just shot down. It made no sense at all.
    What is at stake for all Americans, as these decisions are 
made, are our American values and the primacy in our system of 
government of the rule of law, something we like to say makes 
us different than a lot of the enemies we face.
    Today we have before us some of the uniformed witnesses who 
testified before the Armed Services Committee. I look forward 
to the testimony of the JAG officers.
    I might say, when I was in ROTC in college--Air Force ROTC, 
General Rives. My son took a different route. He went into the 
Marine Corps. They would not let me in because I was blind in 
one eye.
    But I wanted to become a JAG officer because they had been 
trying to uphold the best military justice traditions. I thank 
them for their service. I am sorry they have been cut out, 
often, from the administration's deliberations.
    So I look forward to our consideration at this hearing, 
whether the War Crimes Act provisions should be expanded to 
include additional offenses.
    In the future, I hope at some point we can get the 
Committee together to consider, again, how to construct 
military commissions.
    Mr. Chairman, I will put my whole statement in the record.
    Chairman Specter. Without objection, the entire statement 
will be made a part of the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. We now turn to our first witness, who we 
would call, first. He is a representative from the Department 
of Justice, the Acting Assistant Attorney General in the Office 
of Legal Counsel, Steven Bradbury.
    He has a distinguished academic record. He has a Bachelor's 
degree from Stanford, a magna cum laude law degree from the 
University of Michigan, an extensive practice in private law, 
law clerk to Judge James Beckley of the DC Circuit.
    We acknowledge the very substantial assistance that Mr. 
Bradbury has given to this Committee in working through some 
very difficult legal issues with the Department of Justice.
    Thank you for joining us, Mr. Bradbury. We look forward to 
your testimony.

    STATEMENT OF STEVEN BRADBURY, ACTING ASSISTANT ATTORNEY 
   GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Bradbury. Thank you,Mr. Chairman, Senator Leahy, and 
members of the committee. I appreciate once again the 
opportunity to appear here today on behalf of the Department of 
Justice to discuss the question of war crimes prosecutions in 
the wake of the Supreme Court's decision in Hamdan v. Rumsfeld.
    The administration believes that Congress needs to address 
the Supreme Court's ruling in Hamdan that Common Article 3 of 
the Geneva Conventions applies to our own 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.
    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, however, that some of the terms in Common 
Article 3 are inherently vague. For example, Common Article 3 
prohibits outrages upon personal dignity, in particular, 
humiliating and degrading treatment. Of course, it is 
susceptible to uncertain and unpredictable application.
    Furthermore, the Supreme Court has said, in a long line of 
cases, that in interpreting the treaty provisions 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, which, as a 
result of the court's decision, is now the baseline standard 
that applies, including to the conduct of U.S. personnel in the 
War on Terror, is subject to the evolving interpretations of 
tribunals and governments outside the United States.
    We believe that the standards applicable to the crimes of 
terrorists, as well as those 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.
    Of course, with respect to terrorists, it is our intent to 
prosecute them for their war crimes through military 
commissions authorized by Congress.
    In terms of our own treaty obligations as a Nation, we 
believe that one straightforward step that Congress could take 
would be to define our baseline obligations for the treatment 
of detainees under Common Article 3 by reference to the U.S. 
constitutional standard already adopted by Congress in the 
McCain amendment.
    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 as part of 
the Detainee Treatment Act.
    That amendment prohibits cruel and 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.
    Congress rightly assumed that the enactment of the Detainee 
Treatment Act settled questions about the baseline standard 
that would govern in the War on Terror. We view this standard 
established by the McCain amendment as entirely consistent 
with, and a useful clarification of, our obligations under the 
relevant provisions of Common Article 3.
    Defining the terms of Common Article 3 as a treaty matter, 
however, is not only relevant for our treaty obligations, but 
is also important because the War Crimes Act, 18 U.S.C 
Sec. 2441, makes any violation of Common Article 3 a felony 
offense.
    The administration believes that Congress should 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.
    One sure way to achieve that clarity and certainty, in our 
view, would be 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 the War 
Crimes Act.
    Of course, Mr. Chairman, with respect to military 
commissions, the current military commission order sets forth a 
long list of war crimes that would be triable by a military 
commission and it would be our suggestion that any legislation 
enacted by Congress to authorize military commissions would 
similarly set forth a list of substantive war crimes that would 
be offenses triable by military commission.
    The 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 understand, Mr. Chairman, that the Committee is also 
interested in the question whether conspiracy to commit a 
violation of the laws of war may be charged as an offense under 
the laws of war tried before a military commission. We believe 
that it may.
    On this point, Mr. Chairman, I would simply say that we 
believe that the dissenting opinion in Hamdan was correct in 
its analysis, and that the plurality's view on this particular 
question is not sustainable.
    I look forward to discussing these subjects with the 
Committee this morning. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Mr. Bradbury.
    Our next witness is the distinguished Former Chairman of 
the Joint Chiefs of Staff, General Richard B. Myers. He 
received a Bachelor's degree from Kansas State University, a 
Master's in business administration from Auburn.
    He has an extensive additional educational background while 
in the service. He held a very impressive list of commands. He 
has more than 4,100 flying hours, 600 combat hours on the F-4 
jet, and, if I may say, is a native Kansan.
    Our native State takes great pride in what you have done, 
General Myers. We welcome you here today, and the floor is 
yours.

 STATEMENT OF GENERAL RICHARD B. MYERS, FORMER CHAIRMAN, JOINT 
               CHIEFS OF STAFF, WASHINGTON, D.C.

    General Myers. Thank you, Mr. Chairman, Senator Leahy. I 
have a very short statement. First, let me express my 
appreciation for the opportunity to be here.
    All I would like to suggest, is that the issues we are 
going to discuss today have, potentially, very significant 
impacts on how this Nation and its ability to prosecute the War 
on Terrorism will go.
    Also, on our troops who are on the front lines of this war. 
Also, on how the international community is going to view the 
fairness of whatever process we come up with to deal with 
unlawful enemy combatants.
    So I do not think there is a more important subject being 
discussed today than this particular subject, given the threat 
we face from violent extremists and terrorism. I thank you for 
the opportunity to be here, Mr. Chairman.
    Chairman Specter. Thank you very much, General Myers.
    We turn, now, to Major General Scott Black, the Judge 
Advocate General for the U.S. Army. General Black received his 
Bachelor's degree from California Poly Tech State University. 
He attended California Western School of Law in San Diego, and 
received a Master in Science from the National Resource 
Strategy of the National Defense University.
    He has an impressive list of military assignments which 
will be included in the record, and quite a number of awards 
and honors, also which will be included in the record.
    We appreciate your coming in today, General Black, to give 
us the advantage of your thinking on how to approach these 
tough judicial issues. The floor is yours.

  STATEMENT OF MAJOR GENERAL SCOTT BLACK, THE JUDGE ADVOCATE 
              GENERAL, U.S. ARMY, WASHINGTON, D.C.

    General Black. Thank you, Mr. Chairman, Senator Leahy, and 
members of the committee. I would like to thank you for the 
opportunity to appear before you today, and for the committee's 
timely and thoughtful consideration of these significant 
issues.
    As you know, soldier-lawyers in the Judge Advocate Generals 
Corps have practical experience and expertise in the law of 
war. For the most part, our involvement in this area is focused 
on helping commanders ensure that U.S. military operations 
adhere to the rule of law and the law of war, a standard that 
is typically met and, frankly, a practice that frequently 
separates us from our enemies.
    We are also integrally involved in the prosecution of 
soldiers for crimes that occur in combat, although our general 
practice is to charge soldiers with violations of the Uniform 
Code of Military Justice and not with war crimes.
    The Supreme Court's ruling in the Hamdan case has 
reinforced the importance of the rule of law and law of war, 
and has reinvigorated our scholarship concerning how we charge 
and prosecute individuals for war crimes.
    In Hamdan, the Supreme Court reminds us that properly 
established and enabled military commissions continue to be a 
viable and vital forum to try those enemy combatants who 
violate the laws of war.
    Congress may specify substantive offenses triable by 
military commissions in a number of different ways, including 
in an act related to military commissions, or by amending the 
War Crimes Act at 18 U.S.C. Sec. 2441, or by both means.
    Army Judge Advocates are now involved in the process, led 
by the Department of Justice 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 now at issue in the global war on terrorism.
    This would include conspiracy, which the Supreme Court 
found problematic in Hamdan. While this review and analytical 
process is ongoing, I believe that several points are apparent.
    First, we need the help of Congress to pass additional 
enabling legislation, both for the military commission forum 
and for the substantive offenses that may be tried by 
commissions.
    Second, the War Crimes Act should be amended. In so doing, 
however, our goal should be to elevate the Act from an 
aspiration to an instrument. By this I mean that the Act should 
not simply be a statement of legal policy in furtherance of the 
ideals of the law of war, but should be a statute defining 
serious and prosecutable criminal offenses.
    Finally, third, whatever is criminalized in the War Crimes 
Act must withstand the test of fairness, as well as the 
scrutiny of law. Since it is a criminal statute, it must be 
clear and it must prescribe, clearly, criminal conduct. There 
cannot be two standards. If we are to hold enemy combatants to 
the War Crimes Act, we must be prepared to hold U.S. personnel 
to the act.
    In conclusion, I believe that with the help of Congress we 
will have a forum and the necessary offenses that enable the 
Nation to have a pragmatic, lawful, and effective instrument 
for maintaining order and the rule of law on the battlefield.
    With that, sir, I thank you and look forward to your 
questions.
    Chairman Specter. Thank you very much, General Black.
    [The prepared statement of General Black appears as a 
submission for the record.]
    Chairman Specter. Our next witness is Rear Admiral Bruce 
MacDonald, Deputy Judge Advocate General for the Department of 
the Navy and Commander of the Naval Legal Services Command.
    He has a Master's degree from Holy Cross, a law degree from 
the California Western School of Law, and a Master's from 
Harvard.
    He has a very distinguished record in the military, and 
awards, all of which will be included in the record.
    We thank you for coming in today, Admiral MacDonald, and 
look forward to your testimony.

   STATEMENT OF REAR ADMIRAL BRUCE MACDONALD, JUDGE ADVOCATE 
              GENERAL, U.S. NAVY, WASHINGTON, D.C.

    Admiral MacDonald. Thank you very much, Mr. Chairman. I 
appreciate you inviting me to testify today, Senator Leahy, 
members of the committee.
    During a ceremony conducted at the historic Washington Navy 
Yard this past Friday, I relieved Rear Admiral Jim McPherson as 
the Judge Advocate General of the Navy, so I am here before you 
now as the senior Navy lawyer.
    Rear Admiral McPherson retired after more than 27 years of 
distinguished service to the Navy and to our Nation, and I am 
honored to follow in his wake. I have the particular good 
fortune to join the ranks of Generals Jack Rives, Scott Black, 
and Kevin Sandkuhler, who are military officers and Judge 
Advocates with the highest professionalism and integrity.
    Mr. Chairman, as our National security strategy makes 
clear, global security ultimately depends on the advance of 
freedom and democracy, both of which are grounded in the rule 
of law. We must always accomplish our military missions within 
the rule of law. Anything less risks forfeiting essential 
domestic and international support and undercuts the very 
values for which we stand and fight.
    Working together to carefully navigate these important 
issues, I am confident that we can develop a system that 
balances the needs of national security with the importance of 
affording all accused, whether terrorists or American service 
members, a fair and full judicial proceeding.
    Once again, Mr. Chairman, thank you for the opportunity to 
testify. I look forward to answering your questions.
    Chairman Specter. Thank you very much, Admiral MacDonald.
    [The prepared statement of Admiral MacDonald appears as a 
submission for the record.]
    Chairman Specter. We now turn to Major General Jack L. 
Rives, Judge Advocate General for the U.S. Air Force.
    He has a Bachelor's degree from the University of Georgia, 
a University of Georgia Law School law degree, and extensive 
additional educational background in the service. He has a 
distinguished record in the military, with a number of awards, 
all of which will be made a part of the record.
    We appreciate your coming in, General Rives, and the floor 
is yours.

   STATEMENT OF MAJOR GENERAL JACK RIVES, THE JUDGE ADVOCATE 
           GENERAL, U.S. AIR FORCE, WASHINGTON, D.C.

    General Rives. Thank you, Chairman Specter, Senator Leahy, 
and members of the committee. I appreciate the opportunity to 
appear before you today as this Committee carefully considers 
the authority of the United States to prosecute suspected 
terrorists, consistent with the Supreme Court's decision in 
Hamdan v. Rumsfeld.
    Prior to enactment of the War Crimes Act, suspected war 
criminals were prosecuted domestically by the United States for 
the underlying common law offense, such as murder, rape, or 
assault.
    Consistent with our treaty obligations, Congress enacted 
the War Crimes Act to prescribe misconduct internationally 
recognized as constitution violations of the laws of nations. 
Prosecutions under the War Crimes Act, like all prosecutions 
under Title 18, include the due process rights afforded in our 
Federal court system.
    While these rights are necessary and appropriate for 
suspected terrorists, investigated and apprehended through 
normal domestic law enforcement methods, some, such as the 
aggressive discovery rules and strict chain of custody 
requirements are incompatible with the realities and 
unpredictability of the battlefield. The full discovery rights 
of our Federal court system may reveal sensible, intelligent 
sources and methods that would harm our overall national 
security.
    Similarly, the chain of custody requirements of our Federal 
system are simply unworkable, given the uncertain and ever-
changing nature of the battlefield and the need for our 
military personnel to be free from the technical rules more 
applicable to domestic law enforcement officers operating in 
American neighborhoods.
    In light of these difficulties, our laws offer alternative 
means to prosecute suspected terrorists seized on the 
battlefields of the global war on terrorism. These alternative 
methods were the subject of Hamdan v. Rumsfeld and they are the 
focus of ongoing discussions outside of Title 18.
    However, congressional action to amend the War Crimes Act 
can prove helpful on a related matter. The War Crimes Act 
currently characterizes all violations of Common Article 3 of 
the Geneva Conventions as felonies. Violations of Common 
Article 3 include, among other things, outrages upon personal 
dignity, in particular, humiliating and degrading treatment.
    Under our military justice system, less serious breaches 
can be handled through administrative or non- judicial means. 
However, again, the War Crimes Act treats all violations of 
Common Article 3 as felonies.
    We welcome Congressional efforts to better define which 
outrageous upon personal dignity--in particular, humiliating 
and degrading treatment--amount to serious breaches worthy as 
classification as felonies. Such efforts would serve our men 
and women fighting the global war on terrorism by providing 
clearly delineated limits.
    As recognized and reaffirmed in last year's Detainee 
Treatment Act, we cannot, and will not, condone U.S. military 
personnel engaging in outrageous, humiliating, and degrading 
conduct as U.S. law defines such misconduct. Congressional 
efforts to better define these terms for Common Article 3 
purposes will provide needed clarity to the rules of conduct 
for our military forces.
    I look forward to discussing these issues with the 
Committee this morning. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, General Rives.
    [The prepared statement of General Rives appears as a 
submission for the record.]
    Chairman Specter. Our final witness on the panel is 
Brigadier General Kevin Sandkuhler, Staff Judge Advocate to the 
Commandant for the Marine Corps, which is the equivalent of a 
Judge Advocate General.
    His education includes a Bachelor's degree from Holy Cross, 
he is a cum laude graduate from the California Western School 
of Law, Master of Law and Government Contracts from George 
Washington University.
    He has a very distinguished record in the military, with 
many awards, all of which will be made a part of the record.
    We welcome you here, General. We look forward to your 
testimony.

 STATEMENT OF BRIGADIER GENERAL KEVIN M. SANDKUHLER, DIRECTOR, 
  JUDGE ADVOCATE DIVISION, U.S. MARINE CORPS, WASHINGTON, D.C.

    General Sandkuhler. Thank you, Mr. Chairman, Senator Leahy, 
and members of the Judiciary Committee. Good morning. I wish to 
thank you for the opportunity to appear before you today and 
for this committee's interest in this critical issue.
    As does this committee, we remain keenly interested in 
continuing to fulfill our international obligations under the 
Geneva Conventions, as well as ensuring that we are able to 
effectively and efficiently bring terrorists to justice.
    The plurality of the Supreme Court concluded in the Hamdan 
decision that conspiracy was not triable by a law of war or a 
military commission, in part because it was not positively 
identified by statute as a war crime. How best to bring 
terrorists to justice following the Hamdan decision is a matter 
worthy of careful consideration.
    The War Crimes Act of 1996 was enacted to carry out the 
international obligations of the United States under the Geneva 
Conventions to provide criminal penalties for certain war 
crimes.
    Until its enactment, the United States had never taken 
affirmative steps to legislate the penal provision of the 
Geneva Conventions. The War Crimes Act of 1996 accomplished 
these ends.
    The Act was not intended to affect in any way the 
jurisdiction of any court-martial, military commission, or 
other military tribunal under any article of the Uniform Code 
of Military Justice, the law of war, or the law of nations.
    Substantively, the Act criminalizes four categories of 
conduct, committed here or abroad, as war crimes: grave 
breaches of any of the international conventions signed at 
Geneva, or any protocol to such convention to which the United 
States is a party; violations of Articles 23, 25, 27, or 28 of 
the Annex to the Hague Convention IV, Respecting the Law and 
Customs of War on Land; violations of Common Article 3 to the 
Geneva Conventions; and violations of the Protocol on 
Prohibitions or Restrictions on the Use of Mines, Booby-Traps 
and Other Devices.
    The ability of the United States to prosecute terrorists 
under the War Crimes Act will be driven by whether the crime is 
covered substantively under the Act, but more importantly by 
whether the prosecution is practicable under our Federal 
criminal system.
    Procedurally, prosecuting terrorists under Title 18 in 
Article III Federal courts would present many of the same 
difficulties we have been addressing in our military 
commissions process, including a relation between the national 
security and, for example, discovery rights of the accused, 
access to classified information, and self- incrimination.
    Striking the balance between individual due process and our 
National security interests, while maintaining our service 
members' flexibility in dealing with terrorists and unlawful 
enemy combatants they encounter on the battlefield is the end 
we all seek.
    With that as a backdrop, I look forward to discussing the 
issues with the committee. Thank you.
    Chairman Specter. Thank you. Thank you very much, General.
    [The prepared statement of General Sandkuhler appears as a 
submission for the record.]
    Chairman Specter. I will turn to the Senators for 5 minute 
rounds of questions.
    Mr. Bradbury, does Congress have the authority to delegate 
to the Secretary of Defense the responsibility and authority to 
add offenses, crimes, to the statute or is that one of the many 
non-delegable functions of Congress that would require that 
Congress make the determination of specific war crimes?
    Mr. Bradbury. Thank you, Mr. Chairman. That is a very 
interesting question. I would not say that the Secretary of 
Defense would be creating new crimes from whole cloth, but 
rather that the Secretary of Defense would be recognizing 
offenses that exist under the laws of war and providing for 
their prosecution in the military commission process.
    Chairman Specter. Well, do you think he would have the 
authority, as the press reports on a circulated draft, to add 
offenses to the list in the statute?
    Mr. Bradbury. Yes, provided that they are offenses 
recognized under the laws of war.
    Chairman Specter. Is there any reason why we ought to 
follow that course, which is risky at best? Would it not be 
preferable if the administration wants to make additions, that 
you come to Congress now, tell us what you have in mind, let us 
consider it, let us add them if we think it is correct, as 
opposed to moving again on risky ground and having the issue go 
to the Supreme Court again?
    Mr. Bradbury. That is certainly an avenue open to Congress, 
and one that you might judge is appropriate. Of course, under 
the current military commission procedures that have been 
struck down by the Supreme Court, the administration, through 
administrative action and under the authority of the Secretary 
of Defense, had enumerated a list of offenses that would be 
triable.
    Chairman Specter. All right. I do not want to cut you 
short, but I have got a lot of questions for others. I think 
the key part of your answer so far, is ``struck down.'' So let 
us try to work it out so we do not take the risk of having it 
stricken again.
    General Black, let me turn to you on the overall question. 
Do you think it advisable to start from the Uniform Code of 
Military Justice in structuring the law to comply with Hamdan 
v. Rumsfeld, or do you think we ought to start totally new with 
a military commission line such as the draft which has been 
circulated?
    General Black. I believe that the Uniform Code of Military 
Justice provides a wonderful framework from which to begin.
    Chairman Specter. So that is where we ought to start?
    General Black. Yes, sir.
    Chairman Specter. Admiral MacDonald, do you agree with 
that?
    Admiral MacDonald. Yes, sir, I do. We have been using the 
UCMJ for over 50 years and it affords many, many procedural 
rights.
    Chairman Specter. General Rives, do you concur?
    General Rives. Yes, Mr. Chairman, I do.
    Chairman Specter. General Sandkuhler?
    General Sandkuhler. Senator, I concur with the idea that we 
start with a balanced approach.
    Chairman Specter. Not necessarily the Uniform Code of 
Military Justice?
    General Sandkuhler. I think we have to look at the work 
that we have done over the years with regard to the commission 
procedures. There has been good work done there. Hamdan has 
struck down those procedures, but there is thought that has 
been put into those efforts. We are looking for a balance.
    Chairman Specter. Let me turn, now, to another question. 
That is the issue of confrontation and classified information. 
In legislation which I introduced, Senate bill 3614, I provided 
for a board to be empaneled to go through information which was 
considered classified before the trial commenced so that there 
could be a fresh determination as to what really was classified 
and really had to be kept from the accused.
    If you have a procedure where the lawyer is going to know 
the information but the accused does not, General Rives, does 
that comport with basic fairness on an opportunity to confront 
the evidence and to confront, in essence, your accuser?
    General Rives. You raised a number of issues, Mr. Chairman. 
To address the last question, it does not comport with my ideas 
of due process for a defense counsel to have information he 
cannot share with his client.
    Chairman Specter. Let me ask one final question that I 
would ask you if we do not get to a second round. That is, 
excluding torture, would you permit coerced confessions, 
evidence to be used from them, or would you have some 
refinement between torture and coerced confessions?
    My red light just went on, so I am going to yield now to 
Senator Leahy.
    Senator Leahy. Do you want to go ahead?
    Chairman Specter. Senator Leahy has a good idea.
    The question was on my time now, but the answer is on your 
time.
    Senator Leahy. No, no, no. [Laughter.] I have my own 
questions.
    Chairman Specter. Oh, no. It is not on your time, it is on 
their time. ``Your'' does not refer to you,
    Senator Leahy. How about it, General Black?
    General Black. Sir, I do not believe that a statement that 
is obtained under torture, certainly, and under coercive 
measures should be admissible.
    Chairman Specter. Admiral MacDonald?
    Admiral MacDonald. I agree with General Black.
    Chairman Specter. General Rives?
    General Rives. I concur, too.
    Chairman Specter. General Sandkuhler?
    General Sandkuhler. Yes, sir.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Leahy is now recognized.
    Senator Leahy. Thank you. I concur with all four of you on 
that answer, something also that both the Chairman and I 
learned as civilians when we were both prosecutors, and we were 
both in Air Force ROTC.
    Mr. Bradbury, I always find, as you know, your appearances 
here interesting. This morning I listened to your statement and 
it seemed more of a press release than anything else.
    The hearing is on the authority to prosecute terrorists 
under the war crime provisions of Title 18, but in the written 
statement you submitted late last night, there was not a single 
sentence addressing that subject.
    Did the Chairman's office tell you what the title and the 
subject were going to be before the hearing? That is an easy 
one for ``yes'' or ``no.'' Did they tell you what the title was 
going to be of the hearing?
    Mr. Bradbury. The title?
    Senator Leahy. Or the subject. Either one.
    Mr. Bradbury. They did tell me that there was going to be 
focus on war crimes prosecutions of terrorists.
    Senator Leahy. They did not tell you what the title of the 
hearing was?
    Mr. Bradbury. No.
    Senator Leahy. All right.
    Mr. Bradbury. In fact, I do not know what the title of the 
hearing is as of right now.
    Senator Leahy. The title is, ``The Authority to Prosecute 
Terrorists Under the War Crimes Provisions of Title 18.'' That 
is why I mentioned it, because your statement does not refer to 
that at all.
    General Black and General Sandkuhler--am I pronouncing your 
name right?
    General Sandkuhler. Yes.
    Senator Leahy. I would have to answer to a former lance 
corporal if I get it wrong.
    The intended focus of this hearing is the possible 
expansion of the War Crimes Act, to include the crime of 
conspiracy. General Black, you said Congress may specify 
substantive offenses triable by military commissions by 
amending the War Crimes Act.
    General Sandkuhler, you stated that the War Crimes Act was 
not intended to affect in any way the jurisdiction of any 
court-martial, military commission, or other military tribunal 
under any article of the Uniform Code of Military Justice, the 
law of war, or the law of nations.
    So let me ask both of you this question. Do military 
commissions have jurisdiction to try crimes under the War 
Crimes Act? General Rives?
    General Rives. They would.
    Senator Leahy. General Sandkuhler?
    General Sandkuhler. Yes, sir.
    Senator Leahy. All right. Then the confusion is in my mind 
then.
    Now, Mr. Bradbury, your administration has not initiated a 
single prosecution under the War Crimes Act, but here today you 
are asking us to narrow the scope. Why have there not been any 
prosecutions under it? Is it not expansive enough for 
prosecutions?
    Mr. Bradbury. Well, I guess I have two things to say, 
Senator. There has not been, not ever, a single prosecution 
under the War Crimes Act since it was enacted in 1996.
    Senator Leahy. No, no. I am saying there have been no 
prosecutions under the War Crimes Act, and on the subject we 
are talking about, the 9/11-related.
    Mr. Bradbury. Right.
    Senator Leahy. There have been no prosecutions under the 
Act. Is that right?
    Mr. Bradbury. That is correct.
    Senator Leahy. Why?
    Mr. Bradbury. Because the policy that the administration 
has followed, consistent with past armed conflicts of the 
United States, would be to try those unlawful enemy combatants 
who have committed war crimes through a military commission 
process.
    Senator Leahy. But yet, when we try to put together a 
military commission and legislation on that, that same 
administration did not want us to do it. It is kind of a catch-
22.
    Now, in your testimony, I am thinking about the allegations 
against Steven Green. President Bush said, on the Larry King 
Show, that what Mr. Green is alleged to have done is a 
despicable crime, and has stained the honorable image of the 
U.S. military. I tend to agree. But he is being prosecuted in 
Federal court for murder and rape.
    Now, in your testimony, the Bush Justice Department, even 
though it tried to redefine torture, does include murder as a 
war crime. Is that right?
    Mr. Bradbury. Murder is. If committed in circumstances of 
an armed conflict against a protected person under the laws of 
war internationally, it can be a war crime, yes.
    Senator Leahy. What about rape?
    Mr. Bradbury. It can be a war crime, I believe.
    Senator Leahy. All right.
    General Rives, before the Armed Services Committee you 
stated, in response, I believe, to a question from Senator 
Graham, who is here, some of the techniques that have been 
authorized and used in the past have violated Common Article 3. 
I noted that General Black, Admiral MacDonald, and General 
Sandkuhler agreed with you on that point.
    What specific techniques have been authorized during the 
past 5 years that have violated Common Article 3, and where 
have those techniques been used?
    General Rives. Senator, my response to the question related 
specifically to Paragraph 1(c) of Common Article 3 which 
provides that it is a violation of Common Article 3 if an 
individual commits an outrage upon personal dignity, in 
particular, humiliating and degrading treatment.
    In the July 13 Armed Services Committee testimony, there 
was a lot of discussion about some of the broad, expansive 
definitions that have been given to that particular provision. 
I was, frankly, referring to some of the events that have been 
fairly well publicized that amount to humiliating and degrading 
treatment.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    You have a suspected terrorist caught on the battlefield. 
To the Judge Advocates: would it be better to prosecute that 
person under Title 18 Federal court or a commission, properly 
constructed? What would be your preference?
    General Black?
    General Black. A military commission, sir.
    Senator Graham. Admiral?
    Admiral MacDonald. A commissions, sir.
    Senator Graham. General?
    General Rives. Without doubt, a military commission.
    Senator Graham. General?
    General Sandkuhler. Commission, sir.
    Senator Graham. All right.
    Mr. Bradbury, do you agree with that?
    Mr. Bradbury. Yes, I do, Senator.
    Senator Graham. We find common ground there.
    To the Judge Advocates. Have you been consulted fairly 
extensively about military commissions in Common Article 3 by 
the administration?
    General Black. Yes, sir, we have.
    Admiral MacDonald. Particularly of late, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes.
    Senator Graham. An unqualified ``yes'' by everyone. All 
right.
    Would it be fair to say that there are still areas of 
disagreement?
    General Black. Yes, sir.
    Admiral MacDonald. Yes, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. Is it fair to say there are a lot of areas 
of commonality?
    General Black. Yes, sir.
    Admiral MacDonald. Yes, sir. It is an evolving process.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. All right.
    Now, when it comes to prosecutions under Title 18, the 
biggest concern I have is that our own troops could be 
prosecuted for felonies that are not clearly defined. If you 
are responsible for controlling a detainee, it could become a 
Federal offense in certain circumstances for you to engage in 
certain conduct. Do you all agree that we should, as Congress, 
define what that conduct is so our troops can conform their 
behavior?
    General Black. Yes, sir.
    Admiral MacDonald. Yes, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. An affirmative answer by all the JAGs.
    Now, when it comes time to look at Title 18 anew, would it 
be a better practice to list specifically the crimes we are 
talking about rather than just general statements under 1(c)?
    General Black. Yes, sir.
    Admiral MacDonald. Yes.
    General Rives. Yes.
    General Sandkuhler. Yes.
    Senator Graham. That would allow our troops to know what is 
in bounds and what is not. Is that a fair statement?
    General Black. Yes, Senator.
    Admiral MacDonald. Yes, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. When it comes to interrogating terrorists 
by other countries, do you know of any country that 
interrogates terrorists using Common Article 3 standards in 
their interrogation process?
    Admiral MacDonald. No, sir.
    Senator Graham. General Black?
    General Black. No, sir.
    Senator Graham. General Rives?
    General Rives. I have no knowledge, sir.
    Senator Graham. All right.
    So our dilemma here is how to find a balance between the 
international treaty obligations and the ability to defend 
one's self when it comes to interrogations. Is that correct?
    General Black. Yes, sir.
    Admiral MacDonald. Yes.
    General Rives. Yes, sir.
    General Sandkuhler. Yes.
    Senator Graham. An affirmative response from everyone. All 
right.
    General Myers, in 30 seconds, tell us, what has been the 
down side of not having anyone prosecuted, having one story 
after another about failed policies when it comes to detention 
and interrogation in terms of our image throughout the world.
    General Myers. Well, I think the issue of fairness comes 
up. It has been the intention--when I was in office, of 
course--to move some people through the process as quickly as 
possible for their good and for the good of the perception of 
the process that we had for bringing some of these folks to 
justice.
    The inability to do that, then, creates a lot of 
uncertainty in their minds, and also, I think, in the 
international community; are we really serious about this, do 
we have a process that is fair? I think right now we are 
stagnated and we need to move forward as we are discussing.
    Senator Graham. Mr. Bradbury, do you believe it would be 
wise and prudent for the Congress to reauthorize the military 
commissions as originally written without change?
    Mr. Bradbury. Actually, no, I do not, Senator.
    Senator Graham. To the Judge Advocates: do you agree with 
that statement?
    General Black. Yes, sir.
    Admiral MacDonald. Yes.
    General Rives. I do, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. All right.
    To the Judge Advocates: is it your concern that it would be 
bad for this country to have a procedure where the trier of 
fact, the military jury, could look at evidence to base their 
verdict upon that is never shared with the defendant?
    General Black. Yes, sir.
    Admiral MacDonald. Yes, sir. That is a fair statement.
    General Rives. I agree.
    General Sandkuhler. Yes, sir.
    Senator Graham. Do you have any solution to that dynamic, 
other than just, not prosecute?
    Admiral MacDonald. Sir, I would recommend that Congress 
look to Military Rule of Evidence 505 and to the SEPA 
procedures as a great place to start. Those are tried-and-true 
procedures that we have used in the military and would be a 
good place to begin.
    General Rives. I agree. We do not have to reveal 
confidential sources or methods, but we ought to be able to get 
the information in a format that is consistent with showing to 
the members of the court, the triers of fact, along with the 
accused.
    Chairman Specter. Thank you, Senator Graham.
    Senator Kennedy?
    Senator Kennedy. Thank you.
    I want to thank all of the panel. It has been very, very 
helpful and very constructive. I have had a chance to hear a 
number of you with the Armed Services Committee and I think we 
are all, as a country, enormously indebted to our JAGs. General 
Myers, we thank you for your service. Mr. Bradbury, thank you 
for coming back to speak to us.
    I want to refer to a recent article that caught my eye, and 
I know it will use up my time, but it is interesting. This 
article was in the Cape Cod Times. A fellow named Dan Adams 
wrote, ``As the Bush administration mulls over the recent 
Supreme Court ruling regarding the rights of any combatants 
held at Guantanamo, in particular how to assess detainees, they 
might profit from studying the actions of General Washington 
during the Revolutionary War, and specifically, his treatment 
of Governor Henry Hamilton.
    Hamilton was a British Lieutenant Governor of Canada, 
enlisted in the war effort against the rebellious colonies. He 
set up headquarters in Detroit and employed tactics abhorrent 
to Americans, particularly then- Governor of Virginia, Thomas 
Jefferson.
    Hamilton offered a bounty to the Indians for the scalps of 
rebels, but no bounty for prisoners. He encouraged soldiers 
under his command to employ the utmost brutality and cruelty. 
The result was the massacre and torture of innocent men, women 
and children and earned Hamilton the nickname `Hair Buyer 
General.'
    In 1779, American General George Clark recaptured Detroit, 
and took Hamilton prisoner. Military officers at the time were 
all considered gentlemen, and thus bound by honor to respect 
the rules of war.
    Their treatment as prisoners was lenient. They were trusted 
to stay where they were told and not escape. Generally, this 
honor system worked well. Governor Jefferson routinely 
entertained captured British officers at Monticello, often 
lavishly.
    But Hamilton was different. The atrocities perpetrated by 
him and the great cruelties proved against him personally 
caused such resentment, that when Hamilton fell into 
Jefferson's hands, the latter, deeply angered, placed him in 
the common jail and clapped him in irons.
    General Washington, whose resentment of Hamilton was as 
great, heard about this treatment, was furious, and insisted, 
despite Hamilton's atrocities, such outrageous should not be 
met with equal outrages.
    The newly-declared United States, still teetering and 
experimenting with government, should be an example to the 
world and should therefore conducts its affairs in a higher 
plane. He immediately reprimanded Jefferson and insisted on 
Hamilton's release from jail and further interment to be 
commensurate with other British officers.
    By this and other actions, Washington was setting a 
standard, a code by which this country should act. He believed 
we should, in all our actions, be a model for the rest of the 
world.'' This is rather powerful.
    This morning's newspapers had the article in the Washington 
Post about the proposal that is being considered by the 
administration. Mr. Bradbury, are you familiar with either the 
article or the subject matter?
    Mr. Bradbury. I am.
    Senator Kennedy. Yes. The proposal has not been submitted 
yet?
    Mr. Bradbury. That is correct.
    Senator Kennedy. Should we anticipate that it will be 
submitted soon?
    Mr. Bradbury. We are working diligently with all these good 
folks, and others, on a proposed piece of legislation.
    Senator Kennedy. So, we are still very much open to 
discussion?
    Mr. Bradbury. Yes. Yes.
    Senator Kennedy. As you are familiar, the article had these 
kinds of comments: ``The military lawyers received a draft 
after the rest of the government agreed on it; it argued in 
recent days for retaining some of the routine protections for 
defendants, that the political appointees sought to jettison, 
administration officials said.''
    Mr. Bradbury. I disagree with that statement. The 
legislation has not been agreed upon. It has been going through 
an interagency discussion process. The JAGs have been brought 
in as full participants in that process. But we have not 
finalized the legislation, and had not finalized the 
legislation previously.
    Senator Kennedy. So it says, ``They objected, in 
particular, to the provision allowing the defendants to be 
tried in absentia.'' Is that still in the draft?
    Mr. Bradbury. I do not think anybody would propose that 
defendants be tried in absentia. I think the issue is the very 
difficult one that has been raised in some of the questions.
    I think everybody would agree it is an imperative during an 
ongoing conflict not to share sensitive intelligent sources and 
methods and other information with terrorist detainees.
    So the question is how to give these folks fair trials 
while protecting that information. That is not an easy 
question. We are working through it. That is still an issue 
that is very much open and under discussion.
    Senator Kennedy. But the trial in absentia itself, the 
individual not being present, that is not included in the 
proposal?
    Mr. Bradbury. Well, the question, Senator, would be whether 
certain evidence could be taken into account by the commission 
with the accused not being exposed to that evidence. That is 
the question. Whether you could do that in narrow circumstances 
under protected procedures, would be what we would be 
addressing.
    Senator Kennedy. My time is just about up.
    In that Washington Post article it also said that nothing 
in the draft prohibits using evidence obtained from cruel, 
inhumane, and degrading treatment that falls short of torture. 
I think we have the comments from the JAGs here. I think you 
commented earlier. Was that accurate or inaccurate?
    Mr. Bradbury. Well, I think that certainly we would include 
in any legislation an absolute prohibition on the use of 
statements obtained through torture. When it comes to--and I 
think I have testified to this before this Committee two or 3 
weeks ago--a question of statements that have been alleged to 
have been obtained through coercion, it is a more difficult 
question. Allegations can be made about coercion and courts 
have always had a very difficult time in defining what that is.
    So I think one of the possible approaches would be to have 
a certified military judge acting as a gatekeeper to hear any 
such allegations, to review the circumstances of any statement 
that has been made that might be introduced as evidence, and to 
determine whether that statement is unreliable, lacking in 
probative evidence, et cetera, whether it would be unduly 
prejudicial, but the sort of gatekeeper role that a traditional 
judge would play. We think that is a way to address that. It is 
the way that Article 3 courts have traditionally addressed that 
question.
    Senator Kennedy. Could I ask the Chair, when do we expect 
to get the draft? Does the Chair have any information of the 
timing of this craft?
    Chairman Specter. My information? I do not have anything at 
hand. We have been in touch, Senator Kennedy, on a daily basis. 
We hoped to have had the draft in advance of this hearing so 
that we could ask more specific questions. We may have to have 
another hearing. But we urge Mr. Bradbury to let us have the 
draft as soon as you can.
    Mr. Bradbury. We are working as hard as we can, Mr. 
Chairman.
    Chairman Specter. Well, I know you are a hard worker, so we 
will accept that answer.
    Thank you, Senator Kennedy.
    Senator Feinstein?
    Senator Feinstein. Good morning, gentlemen. If I understand 
Hamdan correctly, questions were raised about whether a war 
crimes conspiracy charge is ever permissible under U.S. and 
international law.
    I gather Justice Stevens cited the Neurenburg tribunal, 
which pointedly refused to recognize conspiracy as a violation 
of the laws of war. Of course, it is a double-sided coin.
    Aiding and abetting, conspiracy-related crimes, if they 
were added, could be used against our people as well. I am 
really asking each one of you for a quick conclusion. Do you 
believe that conspiracy crimes should be defined and added to 
whatever comes out as the vehicle from this committee? Mr. 
Bradbury?
    Mr. Bradbury. Yes.
    Senator Feinstein. General Myers?
    General Myers. I will defer to the others.
    General Black. Yes, ma'am, I do.
    Admiral MacDonald. Yes, ma'am.
    General Rives. The caveat I would say, is under 18 U.S. 
Code Sec. 2349(a), we have provided material support to 
terrorists as an offense. I prefer that to conspiracy, which 
carries a lot of baggage.
    Senator Feinstein. Thank you.
    General Sandkuhler. Senator, I think you can include 
conspiracy. I think you can work and define it and include it 
in war crimes.
    Senator Feinstein. And you do not believe it is a double-
edged sword as far as prosecutions being brought against our 
people? I assume that is correct. Is that correct?
    General Sandkuhler. Yes, ma'am.
    Senator Feinstein. All right.
    Admiral MacDonald and General Black, you both speak about 
Common Article 3 in your written comments, the prohibition. 
Admiral MacDonald, you say Common Article 3's prohibition upon 
outrages on personal dignity is not well defined. How would you 
suggest we define it?
    Admiral MacDonald. Ma'am, that is the $24,000 question as 
to how we go about doing that. In its current formulation, it 
is entirely too vague and it puts, as you mentioned before, our 
own service members at risk.
    Senator Feinstein. Does anyone have a suggestion--I know 
Mr. Bradbury would, but of the JAGs--of how to define it?
    Admiral MacDonald. Ma'am, we have been working through the 
working group that the Department of Justice put together to 
work through the commission's process on a definition.
    Senator Feinstein. When will that be available?
    Admiral MacDonald. As soon as the administration forwards 
the package. If they choose to include it, we have offered a 
definition of what outrageous upon personal dignity would mean. 
Under the Geneva Conventions, the only prosecutable offenses 
are serious violations.
    So one formulation is to include serious outrages upon 
personal dignity. And then we have talked about a reasonable 
persons standard, applying such a standard. So we have got 
various formulations that we have been working through, but we 
do not have agreement yet.
    Senator Feinstein. Thank you. That is very helpful.
    I want to ask this general question. It strikes me that in 
the war on terror, we are dealing with very different people. 
They are not conscripts, they are fanatics. They view life very 
differently. They are prepared to sacrifice their life.
    I was struck when I saw over the weekend a 5-year-old 
little boy dressed upon in a Hezbollah uniform with what 
appeared to be bombs strapped around his waist. I thought, the 
traditional laws really are not going to work.
    Torture really is not going to work. This kind of coercion 
really is not going to work if people really have no value on 
their life and are so fanatic, that the cause is worth any 
amount of suffering they go through.
    Have you gentlemen thought about that, and if so, what are 
your conclusions?
    General Black. Yes, ma'am, we certainly have. That is why 
it is so important to develop a process through our commissions 
to be able to handle these kinds of individuals and offenses, 
and we need a system that is enduring that applies not just to 
Al Qaeda, but to every other type of terrorist individual that 
falls into that sort of category.
    We are very much aware, particularly in the Services, where 
our troopers are exposed on a day-to-day basis to those 
individuals. We very much support whatever you can do to help 
us to get to commissions as fast as we can, and in as correct a 
manner as possible.
    Senator Feinstein. Anybody else want to comment on that?
    General Myers. I will comment. Some of the experience that 
we had when I was on active duty with some of these 
individuals, was that once detained, without coercion, that 
they changed their tunes, sometimes fairly quickly, and they 
were not quite as willing to sacrifice themselves for the 
cause. They would change and they would offer up good 
intelligence and other information that was useful to the war 
on terrorism.
    So, I think what we see sometimes in public displays, and 
what you find out once they have been captured on the 
battlefield, are maybe two different things. So, I just would 
offer that. Not all of them. Some of them are, of course, to 
the end, very hard core. But not all of them are.
    Admiral MacDonald. Senator, I would just offer that, having 
visited Guantanamo and talked to our interrogators at 
Guantanamo, that they strongly believe that coercion and 
torture does not work, and that it does not get you the 
actionable intelligence that we need.
    They are engaged in a much longer process of building trust 
with the detainees through fair treatment in the hopes that, as 
General Myers just said, of getting them to come forward with 
information of their own accord, and they have been successful.
    General Rives. Senator, I would just add that one of the 
revelations most Americans had after 9/11, is that we are not 
dealing with criminals, we are dealing with a different sort of 
very hostile, non-state actors in most cases.
    We need to act with them appropriately on the battlefield 
when that is necessary, and when we capture them and they 
become detainees we need to treat them humanely, but we do need 
to keep them from being able to further engage in their 
desires.
    Senator Feinstein. Thank you. Thank you, gentlemen.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Bradbury has argued that Common Article 3 is difficult 
to interpret. When the Judge Advocates General on the panel 
here today testified before the Armed Services Committee, you 
confirmed that the military has been--and I am actually quoting 
General Black--``training to that standard and living to that 
standard since the beginning.'' I think each of you agreed, as 
did Admiral McPherson, who is not here today.
    Do you still agree with that? Admiral MacDonald, do you 
agree as well?
    General Black. Yes, sir, I do.
    Admiral MacDonald. Yes, sir, I do.
    General Rives. Yes.
    General Sandkuhler. Yes, sir.
    Senator Feingold. Well, I think that says a lot. I do 
appreciate those very direct answers.
    General Black, I was struck by something in your testimony. 
You wrote, ``There cannot be two standards. If we are to hold 
enemy combatants to the War Crimes Act, we must be prepared to 
hold U.S. personnel to the Act.''
    Can you say a little bit more about what you meant by that?
    General Black. The article that Senator Kennedy referred to 
probably says it best. The United States should be an example 
to the world, sir. As we put our soldiers in harm's way, we 
must always consider how they will be treated if they are 
captured.
    Reciprocity is something that weighs heavily in all of the 
discussions that we are undertaking as we develop the process 
and rules for the commissions, and that is the exact reason, 
sir, the treatment of soldiers who will be captured on future 
battlefields. That is of paramount concern.
    Senator Feingold. I would ask the other Judge Advocates to 
respond.
    Admiral MacDonald. Yes, sir. I agree with General Black on 
the reciprocity agreement. As Congress goes through the 
commission rules that are forwarded by the administration, I 
think all of us would ask that you keep the reciprocity issue 
in mind as you go down, line by line, looking at each of the 
rules.
    General Rives. I agree, also, Senator. As we, especially 
over the recent days, have worked very closely with the 
administration on drafting proposed legislation, one of the 
points that our staff officers have continued to emphasize, as 
have we directly, is the need to consider reciprocity with 
everything we are doing.
    Senator Feingold. Sir?
    General Sandkuhler. I agree as well, Senator.
    Senator Feingold. Thank you. This is for, again, the Judge 
Advocates. Hypothetically speaking, do you think a military 
commission would be an appropriate forum to try a U.S. citizen 
not actively engaged in military operations against the United 
States? General Black?
    General Black. No, sir. Not as we are currently conceiving 
the commissions. It would be unlawful enemy combatants, and 
that definition should exclude U.S. citizens. We have other 
forums and other capabilities for handling U.S. citizens.
    Admiral MacDonald. Yes, sir. For armed forces we have the 
UCMJ, for our own civilians we have our Federal rules, so I 
would not use commissions.
    General Rives. I agree, Senator.
    General Sandkuhler. I agree, Senator.
    Senator Feingold. Thanks to all of you.
    Again, for each of you, do you agree that for any 
deviations of a military commission procedure from the standard 
UCMJ court-martial procedure, there should be an explicit 
rational for why that particular provision of the UCMJ is not 
workable? General?
    General Black. Yes, sir. I think we can do that.
    Admiral MacDonald. Yes, sir. I agree.
    General Rives. We can do it, and there should be an 
understandable rationale. Whether the legislation itself--I am 
not sure what you are suggesting--should explicitly say that or 
not is another matter, though.
    General Sandkuhler. We have been studying how we can best 
use UCMJ as a basis and then modify that as required by the 
practicality of the situation. So I think we all are in general 
agreement on that.
    Senator Feingold. Well, I thank all of you for your direct 
answers.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    General Myers, when the so-called famous Bybee memo was 
written in the Department of Justice, which was later 
discredited and rejected, outlining some very extreme forms of 
interrogation, there was a task force commission of the 
Department of Defense. We have heard extensive testimony from 
General Counsel Haynes about that subject.
    The question in my mind is, what did some of the 
experienced people on the military side, like yourself, as 
Chairman of the Joint Chiefs of Staff, have to say about that? 
Were you informed? Did you participate at all?
    Because sometimes when you have lawyers giving a 
theoretical answer as to how far you can go, you might not be 
coming to grips with the reality that more experienced people 
have who have been in the military and have been much more 
closely associated with the realities. By way of that 
background, were you consulted at all on the interrogation 
techniques/tactics?
    General Myers. Absolutely. As you probably know, the Office 
of the Chairman has its own legal counsel. Of all the conflicts 
that we have been involved in, this one probably has more legal 
context than any conflict we have been in for a very long time. 
But we absolutely were.
    Where I came from on these subjects, and I think where 
military commanders come from, where Staff Judge Advocates come 
from, is exactly the same place. That is, the first thing we 
think about is reciprocity. Well, the first thing you think 
about, is what is fair? What is consistent with international 
law and our treaty obligations?
    The second thing, is reciprocity. How is this going to 
apply to our troops on the battlefield if they were captured? 
Even in a conflict like this where you do not expect 
particularly good treatment, we have to set the standard. That 
is, I think, our obligation as a country, as a matter of fact.
    So we were consulted and we offered our advice. I think the 
way those interrogation methods finally came out--and you will 
have to excuse me here, but I think that the date was probably 
2002 in April, or in that time frame.
    Chairman Specter. Did you concur with the final list that 
was sent to the Secretary of Defense?
    General Myers. Yes. Again, I am a little fuzzy on dates. I 
think the final list came out in April or May of 2002, I 
believe. In fact, I think there were 24 methods consistent with 
the manual, and excluded some methods that were deemed to be 
consistent with international law, but it did not seem 
appropriate from my standpoint. I think that was the standpoint 
of most.
    Chairman Specter. You say there were some on that list?
    General Myers. There were some that were excluded. Sure. 
There were some on there that----
    Chairman Specter. That you disagreed with?
    General Myers. Well, no. Not of the final list that was 
approved. But there was a broader list that we pared down to 
the final list, and took some off. While they may be in 
compliance with international law as defined by the Justice 
Department and others, we did not think they were appropriate, 
so we pared that down.
    By the way, I will have to say that the OSD General Counsel 
also agreed with that. In fact, he was one of the ones that led 
paring that list down. We were not fighting much of a head wind 
there. It was also the Secretary's view as well.
    Chairman Specter. General Black, did you agree with that 
final list?
    General Black. Sir, I was not in the position as Judge 
Advocate General at the time, and I was not even stationed in 
the DC area. So, I cannot speak to that.
    Chairman Specter. So you did not have a role to play.
    General Black. No, sir.
    Chairman Specter. You were not in the loop.
    General Black. No, sir.
    Chairman Specter. How about you, Admiral MacDonald?
    Admiral MacDonald. The same thing, sir. I was not in the 
loop.
    Chairman Specter. General Rives?
    General Rives. Senator, when I finally saw the list I 
believed there was legal support for every decision the 
Secretary of Defense made in his April, 2003 memorandum.
    Chairman Specter. Aside from legal support, did you agree 
with the list?
    General Rives. There were policy calls that the Secretary 
made that are supportable, and he is the one who makes the 
policy calls. We are advisors, he makes the policy calls. I did 
not have a real problem with most of the things on the list. 
But again, he is the one who makes those policy calls. What he 
decided is legally supportable.
    Chairman Specter. General Sandkuhler, did you agree with 
that list?
    General Sandkuhler. I was there with General Rives.
    We did a review of those items listed there. They were 
supportable. Again, I think decisions needed to be made by 
those who were in those positions.
    Chairman Specter. Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman.
    Just to follow up on a question with the JAGs, a question 
that Senator Feingold had asked. Would you agree that it would 
be reasonable to limit military jurisdiction to those that 
fight against U.S. armed forces in places like Iraq and 
Afghanistan, where, one, the Congress has authorized the use of 
military force, and, in fact, there is conflict?
    General Black. I am not sure I would take the additional 
extension, sir.
    Senator Leahy. All right.
    General Black. I have not had a chance to look at the issue 
thoroughly, so I just do not feel comfortable answering the 
second part, where Congress has authorized specific military 
action.
    But I do agree with the first part of your question, that 
there should be an explicit and very detailed definition of who 
the commission should apply to and what the jurisdictional 
limits are.
    Senator Leahy. Admiral MacDonald?
    Admiral MacDonald. Yes, sir. I would agree with General 
Black. The discussions we have been having with the DOJ-DoD 
working group have involved the jurisdictional reach of the 
commission's legislation.
    Senator Leahy. General Rives?
    General Rives. I agree, Senator.
    Senator Leahy. General Sandkuhler?
    General Sandkuhler. I agree, Senator.
    Senator Leahy. Thank you.
    Mr. Bradbury, one week after the Supreme Court handed down 
its decision in Hamdan, I am sure you are aware, the memorandum 
that Gordon England, the Deputy Secretary of Defense, issued, 
he instructed officials at the Department of Defense to ensure 
that all their personnel adhere to the requirements of Common 
Article 3 of the Geneva Conventions.
    Have other agencies, such as the CIA, issued similar 
instructions?
    Mr. Bradbury. Well, Senator, I will say this. I cannot 
discuss any intelligence activities of the United States here.
    Senator Leahy. Aside from intelligence activities, are you 
aware of any other departments that have issued similar 
instructions?
    Mr. Bradbury. This is what I can say. The court's 
interpretation of Common Article 3, that it applies to our war 
with Al Qaeda, does mean that it encompasses all Al Qaeda 
detainees held by the United States.
    Senator Leahy. Well, would you not agree that the Hamdan 
decision removed any doubt that all U.S. personnel must comply 
with Common Article 3?
    Mr. Bradbury. With respect to persons detained by the 
United States in our war with Al Qaeda, that is correct.
    Senator Leahy. Do you agree that the Hamdan decision 
removed any doubt that all U.S. personnel must comply with 
Common Article 3?
    Mr. Bradbury. To the extent it applies, no. You are 
absolutely right.
    Senator Leahy. So let me ask you this question. Is the 
memorandum issued for people in the Department of Defense by 
Gordon England the only such directive issued in the U.S. 
Government?
    Mr. Bradbury. Again, Senator, I cannot discuss any 
intelligence activities of the United States.
    Senator Leahy. I am not asking for you to discuss that. I 
am asking for procedure. You obviously are not going to answer, 
so let me ask you this. Has the Office of Legal Counsel issued 
any guidance on this issue?
    Mr. Bradbury. I am not really in a position to discuss 
specific legal advice that has been given. I have given legal 
advice on the application of Common Article 3. As I have said 
today, it does generally apply to detainees.
    Senator Leahy. You cannot tell me whether the Office of 
Legal Counsel has issued any guidance on this issue?
    Mr. Bradbury. I have participated in advising on this 
issue. For example, I reviewed Deputy Secretary England's memo 
before----
    Senator Leahy. That was not my question. Has the Office of 
Legal Counsel issued any guidance on this issue?
    Mr. Bradbury. I do not think I would say we have issued 
guidance. I would say that I participated in giving advice. For 
example, I did advise the Department of Defense and I reviewed 
Deputy Secretary England's memo.
    Senator Leahy. Let me ask all the JAGs. Could the appeals 
process for courts-martial be used for military commissions? If 
not, why not?
    Admiral MacDonald. Sir, I would say that you could use that 
process. You could also use the DTA, the Detainee Treatment 
Act, process. You could have an appeal to the DC Circuit Court 
of Appeals. That would be a way to orchestrate the appeal 
process. But you could use the UCMJ process.
    Senator Leahy. General Black?
    General Black. It is an alternative, sir, and certainly 
worth considering. We have extraordinarily competent and 
talented judges at appellate levels throughout the Services.
    Senator Leahy. Who are also used to handling classified 
information.
    General Black. Yes, sir. That is true.
    Senator Leahy. Without leaks.
    General Black. Yes, sir.
    Senator Leahy. General Rives?
    General Rives. Yes, sir. Senator, we could use the existing 
military appellate process. I personally believe a better 
process would be perhaps creating a new court where you had 
appellate military judges or other qualified personnel, and 
then appeals from that court's decision could go to the DC 
Circuit.
    General Sandkuhler. Senator, I would be concerned about 
some of the provisions within the appellate process that are 
unique to the military, in particular, Article 66 of the UCMJ 
which gives our initial appellate court both the ability to be 
a finder of fact and a reviewer of the law. That is an 
authority that I think would be inapplicable in this situation.
    Senator Leahy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    General Black, we know you have a commitment to address a 
group about to depart for Iraq, so we thank you for coming. You 
are excused. You may leave a little early. We are not too far 
from finishing, generally. But that business is more pressing 
and more important than remaining here.
    General Black. Thank you, sir.
    Chairman Specter. Senator Leahy will submit more questions 
for the record.
    Senator Graham?
    Senator Graham. Thank you.
    I would like to revisit a line of questioning that just 
occurred. General Rives and General Sandkuhler, I think what 
General Myers was talking about was an April, 2003 memo.
    Let us put this in context. In December of 2002, I believe 
it was, some interrogation policies came about as a result of 
an Office of Legal Counsel interpretation of the torture 
statute.
    Would it be fair to say that the military Judge Advocates, 
in December of 2002, January of 2003, along with General 
Counsel, Mr. Moore, were very upset by this approach?
    General Rives. Yes, Senator, it is.
    Senator Graham. Speak up, please.
    Senator Kennedy. Yes, I agree, Senator.
    Senator Graham. And in February, I think you wrote a memo, 
General Rives, saying that if we go down this road, we are 
going to get our own troops in trouble and lose the moral 
higher ground. Is that correct?
    General Rives. A working group had been set up in mid-
January of 2003. On the 4th of February, the report was 
released. It was labeled ``Final Report.'' On the 5th of 
February, I sent a memo in to the working group chairperson to 
lodge objections along those lines, Senator.
    Senator Graham. Mr. Chairman, I believe that has now been 
declassified and I would like to make it a part of this 
hearing.
    Simply put, you said, I think, in the concluding paragraph, 
that if we go down the road that is being chartered here, we 
could lose the moral high ground and put our own troops at 
risk. Is that correct?
    General Rives. I did write along those lines, Senator.
    Senator Graham. As a matter of fact, General Sandkuhler, I 
think you were even more direct. You were saying to the 
civilians that Article 93 of the UCMJ makes it a crime to 
simply slap. A simple assault could be a crime against a 
detainee.
    Your concern was that if you tried to interpret the torture 
statute in some tortured way, that you could run afoul of the 
UCMJ, and no one was looking at that side of the coin. Is that 
correct?
    General Sandkuhler. Yes, sir.
    Senator Graham. Now, in February, you wrote your memos. In 
March, there was a discussion about revising the December 
interrogation techniques. Is that correct?
    General Rives. A follow-on report to the February 4 report 
was released on the 6th of March, Senator.
    Senator Graham. Did you all have concerns at that time, 
still?
    General Rives. I had some concerns. I had lodged my 
concerns in February. We were not specifically asked for 
inputs. Because mine were already a matter of record, I did not 
add to the concerns I had previously lodged.
    General Sandkuhler. We presented a shorter list of 
concerns, but our concerns were continuing from the prior 
memorandum.
    Senator Graham. Were you ever under the impression that 
this project was going to be shelved?
    General Rives. We last heard of any activity in this 
process in March of 2003, after the abuses of Abu Ghraib became 
public in the spring of 2004, and then we saw that a final 
report, in fact, had been presented in April of 2003.
    Senator Graham. Did you ever get the input on that final 
report? Did you get to see it? Did you give any input?
    General Rives. I was not aware of the April, 2003 report 
until June 16, 2004.
    Senator Graham. What about you, General Sandkuhler?
    General Sandkuhler. I do not recall the exact dates, but 
there was a significant time lag. We saw two preliminary 
reports, and the final report not for a year and a half.
    Senator Graham. All right.
    Now, let us get back to the war on terror, proper. Is it 
fair to say that Al Qaeda are trained to allege abuse and 
coercion?
    General Sandkuhler. Senator, if you read the bible or the 
manual of Al Qaeda which is now available in many sources, they 
are trained to allege coercion. That is part of their handbook.
    Senator Graham. Do the JAGs feel comfortable with the idea 
of taking torture off the table and never using any benefits 
that may flow from torture, that when it comes to allegations 
of coercion by a defendant in a military commission, that the 
military judge be the gatekeeper to decide what happened and 
what did not? Is that a fair process?
    General Sandkuhler. Yes, Senator. That is a fair process.
    Senator Graham. General Rives?
    General Rives. I agree, Senator.
    Admiral MacDonald. Yes, sir.
    Senator Graham. So we could have a military judge using the 
standards that we are comfortable with in our own system to be 
the gatekeeper there when these allegations are made, taking 
torture off the table. Is that correct?
    Admiral MacDonald. Yes, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. All right.
    Now, when it comes to Common Article 3, do you have 
concerns that if we do not domestically define how Common 
Article 3 operates, that international decision makers could 
have an influence on the outcome if we just keep it in current 
treaty form?
    General Sandkuhler. I do, Senator.
    Admiral MacDonald. I do as well.
    General Rives. Yes, sir.
    Senator Graham. And the better course would be to sit down 
and specifically list in Title 18 what would be a war crime, 
making sure that that which is listed gives our troops an 
ability to conform their conduct, and when it comes time to 
codify how Common Article 3 will be implemented, to do so with 
as much definition and specificity as possible under our 
domestic law. Is that correct?
    Admiral MacDonald. Yes, sir.
    General Rives. Yes, sir.
    General Sandkuhler. Yes, sir.
    Senator Graham. Mr. Chairman, this hearing has been hugely 
helpful. It has been a great exercise.
    I believe, Mr. Bradbury, I appreciate what you have done. 
You have reached out to me and others, and to the legal 
community in the military.
    These hard questions about classified information, how to 
define Common Article 3, are within our ability to solve these 
problems if we will follow what the Chairman was suggesting 
early on, working together, not separately, getting the 
Congress involved with the administration, having the legal 
community from our military relying on our commander's judgment 
that we can get this right this time around, only if we do it 
together with a view that we have to sell it to not only our 
own troops, but to the world, as being fair.
    General Myers, thank you for coming as a commander, because 
it is important for me to hear from you what is at stake here 
if we do not get this right.
    Thank you very much.
    Chairman Specter. Thank you, Senator Graham.
    Admiral MacDonald, you had made reference to Section 501, I 
believe it was, where the procedures were established for the 
military on classified information, to handle it in a way which 
is balanced and fair. What are those essential provisions?
    Admiral MacDonald. Sir, it is Military Rule of Evidence 
505. At court-martial, the military judge can hold an in camera 
proceeding where he takes a look at the classified evidence.
    He can determine what parts will come in, what will not, 
based on a relevance determination. But all of the evidence 
that the judge determines to be relevant, if it remains 
classified, that has to be shown to the accused.
    Chairman Specter. Would there not be a problem showing an 
Al Qaeda defendant, for example, classified information under 
those terms?
    Admiral MacDonald. Yes, sir, there would. I think the 
answer may be that, in that instance, you would have to give up 
the prosecution of that particular charge.
    Chairman Specter. So it would not be a matter of proceeding 
without informing the defendant so that he would not be denied 
confrontation, but you would have to drop the charge?
    Admiral MacDonald. Yes, sir.
    Chairman Specter. Mr. Bradbury, Common Article 3 is in the 
war crimes section as a prosecutable offense. Is there 
sufficient specification for a prosecutor to charge Common 
Article 3 in those generalized terms, and give the defendant 
with enough information to defend?
    Mr. Bradbury. I think that is a very serious question. I am 
not sure that there is. Certainly, Common Article 3 has some 
very clear and serious offenses that it condemns.
    As to those offenses, I think you probably do have 
sufficient notice and clarity as to what the offenses would be. 
But as to humiliating and degrading treatment, I definitely 
think that it lacks essential clarity and certainty.
    As you may know, Mr. Chairman, it is not a treaty 
obligation of the United States under the Geneva Conventions to 
make all violations of Common Article 3 a war crime under our 
domestic law.
    We chose to do that in 1997, at a time when we viewed 
Common Article 3 as applying only to civil wars, internal 
conflict like the conflict in Rwanda, for example, where I 
think everybody can agree that the kind of conduct that is 
currently being prosecuted under the international criminal 
tribunal for Rwanda are very serious, egregious, and clear 
offenses of the laws of war, and I think you could prosecute 
those under Common Article 3. But no prosecutions have ever 
been brought in the United States under our War Crimes Act.
    Chairman Specter. Well, we would appreciate it if you would 
give some further thought to that recommendation as to whether 
it ought to be left open so that charges could be brought on 
the kind of conduct you described which happened in Rwanda, as 
opposed to limiting that provision to specified offenses which 
we would delineate by Congressional enactment.
    The Hamdan case did not deal with detainees, but I would 
like to take that subject up with you gentlemen for just a 
minute.
    General Myers, as you know, we have several hundred 
detainees in Guantanamo. A number estimated as high as 25 have 
been released and returned to the battlefield, so that is not a 
desirable thing to happen.
    The combat review status is emphasized. It happens once a 
year. There are no clear-cut lines for determining what showing 
there must be to continue to hold somebody as an enemy 
combatant. Do you think that the current system is 
satisfactory?
    General Myers. I think one of the fundamentals that has to 
surround everything we have discussed, is the fundamental that 
enemy combatants can be held until the end of conflict. I think 
that is important.
    The review process, I thought, as it was invigorated by 
Secretary England when he took responsibility for that as the 
Deputy Secretary of Defense, was rigorous. That is my 
understanding of it.
    Chairman Specter. When you talk about the end of a 
conflict, when you had what have been normal wars, if there is 
any such thing, it ended. The war against terrorism has no end 
in sight.
    General Myers. No. It is a dilemma. It could be a long 
fight. The alternative, though, to release the individuals who 
would commit war crimes against humanity, not just the United 
States, and kill our men, women and children without thinking 
about it, is not a very good alternative. I am not the legal 
expert; these folks here are.
    But until we find a better way to deal with this--because 
they all will not come to trial. We probably cannot bring war 
crimes charges against all of them. But they are very, very 
dangerous people and we have to figure out a way to deal with 
them.
    Chairman Specter. Admiral MacDonald, is there a better way 
to do it?
    Admiral MacDonald. Sir, I would say that we hold an annual 
Administrative Review Board, an ARB, down in Guantanamo. They 
do not release any detainees unless the Administrative Review 
Board process determines that they are no longer enemy 
combatants.
    Chairman Specter. What sort of information--let us not call 
it evidence--or data is sufficient to make a determination that 
that individual is too dangerous to release?
    Admiral MacDonald. Sir, I think they have a standard of 
probable cause to believe that the detainee still poses a 
threat to the United States.
    Chairman Specter. How do they make a determination on 
probable cause with such scarcity of information available as 
to what that person did?
    Admiral MacDonald. Well, sir, there is quite a bit of 
intelligence they have in Guantanamo which they continue to 
exploit that they use to make those determinations at the 
Administrative Review Board.
    I would just say, Senator, we are not required to release 
any detainee until the end of hostilities. That is a principle 
in international law. So if the ARBs are releasing individuals, 
it is because the administration has determined they no longer 
pose a threat.
    Chairman Specter. General Rives, does that satisfy you?
    General Rives. The processes we originally had in effect at 
Guantanamo Bay to process the detainees did not satisfy me, but 
the processes that General Myers first described, and also 
Admiral MacDonald, that we now have in effect, starting with 
the Combatant Status Review Tribunal, is a careful process that 
does comply with the Geneva standards.
    We were behind once the decision to run the CSRTs was made, 
but we caught up over a period of several months. Any new 
detainee would be processed under the Combatant Status Review 
Tribunal rules.
    Then as Admiral MacDonald said, they are reviewed on an 
annual basis by the ARB, the Administrative Review Boards. I am 
convinced the processes are fair, and I would be comfortable 
with similar processes being applied to American Service 
members who may be held.
    Chairman Specter. General Sandkuhler, do you agree?
    General Sandkuhler. I agree, Senator. I also would state 
that those processes we have established, the CSRT and the ARB, 
exceed the requirements of the Geneva Convention.
    Chairman Specter. Mr. Bradbury, the Committee would 
appreciate if you could give us some more specification as to 
what constitutes the probable cause standard that Admiral 
MacDonald articulates to give us some better handle.
    That issue is not before us in the Hamdan decision, as we 
all know, but it may well be. Congress has the responsibility 
under Articles 1, 6 and 8 to make a determination as to what is 
done with those individuals.
    It is true we do not want to release dangerous people to 
come back and kill Americans or kill other people and have to 
face them again on the battlefield, but we have not been able 
to come to grips with what that probable cause is. So if you 
could provide that to the committee, it would be appreciated.
    Mr. Bradbury. I would be happy to do so, Mr. Chairman.
    Chairman Specter. Well, my distinguished Chief Counsel 
wants to know, how long will you hold them? Does anybody have 
an alternative to forever, or until we conclude the war on 
terrorism is over, whichever occurs last?
    [No response]
    Chairman Specter. The silence is profound. This has been a 
very worthwhile hearing. I think Senator Graham was exactly 
correct. We have got a lot of tough issues. We have got a very 
heavy responsibility, but we could meet it. But we are going to 
have to work together to find an answer. Congress is going to 
have to make the final determination here.
    Thank you all very much. That concludes our hearing.
    [Whereupon, at 11:08 a.m. the hearing was adjourned.]
    Questions and answers and submissions for the record 
follow.]
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