[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
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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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