[Senate Hearing 109-1056]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1056
HAMDAN V. RUMSFELD: ESTABLISHING A CONSTITUTIONAL PROCESS
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 11, 2006
__________
Serial No. J-109-95
__________
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
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 193
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 221
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 219
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Bradbury, Steven G., Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice, Washington, D.C........... 6
Cobb, Paul W. ``Whit'', Jr., former Deputy General Counsel, U.S.
Deposition, Washington, D.C.................................... 54
Collins, Daniel P., former Associate Deputy Attorney General, and
Partner, Munger, Tolles & Olson, Los Angeles, California....... 57
Dell'Orto, Daniel J., Principal Deputy General Counsel, Office of
General Counsel, U.S. Department of Defense, Washington, D.C... 4
Koh, Harold Hongju, Dean, Yale Law School, New Haven, Connecticut 50
Olson, Theodore B., former Solicitor General of the United
States, and Partner, Gibson, Dunn & Crutcher, Washington, D.C.. 48
Silliman, Scott L., Retired Air Force Judge Advocate, Center on
Law, Ethics, and National Security, Duke University School of
Law, Durham, North Carolina.................................... 55
Swift, Lieutenant Commander Charles D., Office of Military
Commissions, Office of Chief Defense Counsel, U.S. Department
of Defense, Washington, D.C.................................... 52
QUESTIONS AND ANSWERS
Responses of Steven Bradbury to questions submitted by Senators
Leahy, Feingold, Feinstein, Kennedy and Specter................ 72
Responses of Paul W. ``Whit'' Cobb to questions submitted by
Senator Specter................................................ 101
Responses of Daniel P. Collins to questions submitted by Senator
Specter........................................................ 105
Responses of Daniel Dell'Orto to questions submitted by Senators
Leahy, Feinstein, Kennedy, Kyl, Feingold, Schumer and Specter.. 109
Responses of Harold Hongju Koh to questions submitted by Senator
Specter........................................................ 126
Responses of Theodore Olson to questions submitted by Senator
Specter........................................................ 127
Responses of Scott Silliman to questions submitted by Senators
Specter, Kennedy and Feingold.................................. 130
Responses of Lieutenant Commander Charles Swift to questions
submitted by Senators Leahy, Feingold, Kennedy and Specter..... 139
SUBMISSIONS FOR THE RECORD
Bradbury, Steven G., Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice, Washington, D.C.,
statement...................................................... 158
Cobb, Paul W. ``Whit'', Jr., former Deputy General Counsel, U.S.
Deposition, Washington, D.C., statement........................ 169
Collins, Daniel P., former Associate Deputy Attorney General, and
Partner, Munger, Tolles & Olson, Los Angeles, California,
statement...................................................... 176
Dell'Orto, Daniel J., Principal Deputy General Counsel, Office of
General Counsel, U.S. Department of Defense, Washington, D.C.,
statement...................................................... 186
Fein, Bruce, former Associate Deputy Attorney General, Bruce Fein
& Associates, Washington, D.C., statement...................... 189
Letter, July 10, 2006 to Senators Specter and Leahy from retired
Military....................................................... 200
Koh, Harold Hongju, Dean, Yale Law School, New Haven,
Connecticut, statement......................................... 202
Olson, Theodore B., former Solicitor General of the United
States, and Partner, Gibson, Dunn & Crutcher, Washington, D.C.,
statement...................................................... 225
Silliman, Scott L., Retired Air Force Judge Advocate, Center on
Law, Ethics, and National Security, Duke University School of
Law, Durham, North Carolina, statement......................... 247
Swift, Lieutenant Commander Charles D., Office of Military
Commissions, Office of Chief Defense Counsel, U.S. Department
of Defense, Washington, D.C., statement and attachments........ 255
HAMDAN V. RUMSFELD: ESTABLISHING A CONSTITUTIONAL PROCESS
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TUESDAY, JULY 11, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:29 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, Sessions,
Graham, Cornyn, Leahy, Kennedy, Biden, Kohl, Feinstein,
Feingold, Schumer, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Senate Judiciary Committee will now proceed to hold a hearing
on what response should be made to the decision of the Supreme
Court of the United States on June 29th, a week ago Thursday,
which held that the procedures in place for the trial of
certain detainees in Guantanamo did not satisfy the
Constitution of the United States or the Geneva Convention.
Shortly after 9/11, Senator Durbin and I introduced relevant
legislation, as did Senator Leahy, Senator Graham, and others.
The Constitution is explicit under Article I, Section 8 that
the Congress has the authority and responsibility to establish
the rules of trials of those captured on land or sea. And we
are now proceeding to follow the requirements of constitutional
and international law, as handed down by the Supreme Court of
the United States, and to do it in a way which will permit us
to fairly try those accused of war crimes and will permit us to
fairly, appropriately, and judiciously detain enemy combatants
in accordance with the rule of law.
The Judiciary Committee held hearings on Guantanamo in June
of 2005. I made a trip to Guantanamo in August of 2005, and we
had been working on legislation and had legislation prepared in
anticipation of the Supreme Court decision, which we thought
would require congressional action. And when the Court came
down with its decision, it was studied, and we introduced
proposed legislation. But it is a very complex matter, and we
need to consider procedures to determine what is appropriate
evidence; whether hearsay should be allowed; perhaps not at
trials for war criminals or those charged with war crimes, but
perhaps for detainees, the issue of whether a detainee's
statements can be used if there is a question about whether the
statements were voluntary or coerced; the right to counsel, the
right to classified information; where the lawyers are JAG
officers, they are cleared; where they are private counsel,
they are not cleared. It is more complicated. There are many,
many questions which have to be answered.
We have a distinguished group of witnesses today. We have
the Principal Deputy General Counsel for the Department of
Defense, Daniel Dell'Orto, and we have the Acting Assistant
Attorney General in the Office of Legal Counsel, Steve
Bradbury, who will be our two lead witnesses.
We are shooting for an 11:30 adjournment. Witnesses will
have 5 minutes, and we will have rounds of questioning of 5
minutes.
We did not have the witness testimony submitted in a timely
way. Some of the witnesses were notified late, and that makes
it difficult for members to prepare adequately. But we will
proceed to do the best we can.
Now let me yield to my distinguished Ranking Member,
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman, and thank you
for having this hearing. In a way, we pick up where the
Judiciary Committee started almost 5 years ago, in November-
December of 2001, when we urged the President to work with us
to construct a just system of special military commissions.
In fact, Mr. Chairman, you and I introduced bills with
procedures that would have complied with our obligations under
law. It would have provided the kind of full and fair trials
that the President has said that he wants to provide.
The hearing today follows the United States Supreme Court's
repudiation of the President's military commissions. The
Supreme Court determined that the Bush-Cheney administration's
system for prosecuting detainees at Guantanamo is illegal, and
it told the President, in effect, to stop his illegal conduct.
The decision has given our system of constitutional checks
and balances a tonic that is sorely needed. The Supreme Court
is right in holding that the President is bound to comply with
the rule of law. One of our core American values is that no one
is above the law. I commend the Supreme Court for acting as a
much needed check on unilateral policies that stretch beyond
the President's lawful authority.
When the President announced the creation of these
commissions, Alberto Gonzales, then the White House Counsel,
touted them as a means to dispense justice swiftly, close to
where our forces may be fighting. Were those the results? Not
hardly.
In the last 5 years, there have been no trials and no
convictions of any of the detainees, and no one has been
brought to justice through these commissions. Instead, precious
time, effort, and resources have been wasted.
Remember what I said: 5 years, no trials, no convictions.
When the Bush-Cheney administration rejected our advice,
refused to work with Congress and chose to go it alone in the
development of military commissions, they made a mistake of
historic and constitutional proportions. I hope the
administration will begin today's hearings by admitting their
mistakes and acknowledging the limits on Presidential
authority. As Justice Kennedy emphasized in his opinion,
``subject to constitutional limitations, Congress has the power
and responsibility to determine the necessity for military
courts, and to provide the jurisdiction and procedures
applicable to them.''
The Supreme Court's decision is a triumph for our
constitutional system of checks and balances. It stands for a
very simple proposition: When Congress passes a law, the
President is bound to follow it. The Congress passed the
Uniform Code of Military Justice. Our country adopted and is
bound to abide by the Geneva Conventions regardless of whether
the Attorney General still considers them to be, in his word,
``quaint.''
This President decided not to follow the law. The Court
said in America nobody is above the law, not even the
President.
You know, what is surprising is that in the opinions the
three Justices who claim the mantle of conservatism were so
deferential to the President they would not stand up for the
rule of law.
I am going to put my full statement in the record, but I do
want to make a couple other points.
Like you, Mr. Chairman, I am a former prosecutor, and I
find it hard to fathom that this administration is so
incompetent that it needs kangaroo court procedures to convince
a tribunal of United States military officers that the worst of
the worst in prison at Guantanamo Bay should be held
accountable. Military commissions should not be set up as a
sham. They should be consistent with the high standard of
American military justice that has worked for decades. If they
are to be United States military commissions, they should
dispense just punishment fairly, not just be an easier way to
punish.
For 5 years, the administration has violated fundamental
American values, damaged our international reputation, and
delayed and weakened prosecution of the war on terror--not
because of any coherent strategic view that it had, but because
of its stubborn unilateralism and dangerous theory of
unfettered executive power, augmented by self-serving legal
reasoning. Guantanamo Bay has been such a debacle that even the
President now says that it should be shut down. But the damage
keeps accumulating.
Some still will not admit this administration's errors.
They argue as if the United States should measure itself
against the brutality of terrorists. Our standards in our great
country have always been higher than that, and I disagree with
their argument when it comes to the rule of law. I disagree
when it comes to engaging in torture. I disagree when it comes
to honoring our legal and international obligations. Americans'
ideals are sullied whenever we resort to bumper sticker slogans
about giving special privileges to terrorists. No one has urged
that.
The President says he is for fairness and justice. Well, so
am I, so are you, so is everybody. But I would like to see a
system that could determine guilt and punish the guilty. I am
for a system that works, a system that honors the American
values that have been part of our strength as a good and great
Nation.
Military justice is swift and effective. Courts-martial
have been used to bring some members of our own armed forces
that have violated the law to justice. Meanwhile, not one of
the prisoners at Guantanamo Bay, whom the President has called
``the worst of the worst,'' has been brought to justice. Not
one. Iraq may well complete its trial of Saddam Hussein before
a single Guantanamo detainee is tried. The system the
administration created was fatally flawed. The President
decided not to proceed promptly by courts-martial against the
detainees. I remain willing to work to develop bipartisan
legislation creating military commissions that will comply with
our law. That is what I proposed 5 years ago. That is what you
proposed 5 years ago. I will still work in a bipartisan fashion
to do that despite the 5 years in which the administration has
made it very clear they do not want to work with us.
We need to know why we are being asked to deviate from
rules for courts-martial, and we also need to see a realization
by this administration that it is Congress that writes our laws
and that no office holder, branch, or agency of our Government
is above the law.
So, Mr. Chairman, again, I thank you for holding these
hearings. I went somewhat over time. I will put my whole
statement in the record, but I think this is an extraordinarily
serious matter.
Chairman Specter. Without objection, your full statement
will be made a part of the record.
Senator Leahy. Thank you.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Our first witness is Daniel Dell'Orto,
who holds a bachelor's degree from Notre Dame, master's from
Pepperdine, law degree from St. John's, and a master in law
from the Georgetown University Law Center; colonel in the
United States Army from 1971 to 1998; extensive background as a
judge advocate; has been Principal Deputy Counsel since the
beginning of President Bush's administration.
We welcome you here, Mr. Dell'Orto, and look forward to
your testimony.
STATEMENT OF DANIEL J. DELL'ORTO, PRINCIPAL DEPUTY GENERAL
COUNSEL, OFFICE OF GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE,
WASHINGTON, D.C.
Mr. Dell'Orto. Thank you, Mr. Chairman, Senator Leahy,
members of the Committee. On behalf of the Department of
Defense, please allow me to express my gratitude for the
opportunity to appear before you today and for the prompt and
careful consideration by the Committee of necessary measures in
response to the Supreme Court's decision in Hamdan v. Rumsfeld.
Mr. Bradbury will speak shortly after me, and I will tell
you in advance that I join wholeheartedly in his statement, and
I ask that you consider these words as a supplement to his.
The United States military has convened criminal tribunals
other than courts-martial since the days of the very first
Commander-in-Chief, George Washington. From the Revolutionary,
Mexican-American, and Civil Wars on through World War II and
the present, our Nation and its military have considered these
tribunals an indispensable tool for the dispensation of justice
in the chaotic and irregular circumstances of armed conflict.
The military commission system reviewed by the Court in Hamdan
fits squarely within this long tradition.
Tradition, however, is not the only justification for
employing criminal adjudication processes other than courts-
martial in times of armed conflict. Alternative processes are
necessary to avoid the absurd result of adopting protections
for terrorists that American citizens do not receive in
civilian courts, nor do our service members receive in courts-
martial.
The court-martial system is not well known or understood
outside the military. One common misperception is that courts-
martial must necessarily render a lesser form of justice
because they fall outside the judicial branch. But the opposite
is actually true. To protect in court those who protect us in
battle and to avoid even the appearance of unlawful command
influence, courts-martial are more solicitous of the rights of
the accused than are civilian courts.
For every court-martial rule that is arguably less
protective of the accused than its civilian analogue, there are
several that are indisputably more protective. For example,
legal counsel is provided without cost not just for the
indigent, but for all. The rights to counsel and against self-
incrimination are afforded earlier in the military justice
system than in civilian practice. Instead of indictment by
grand jury, which convenes in secret without the defendant and
defense counsel, the military justice system requires for a
general court-martial a thorough and impartial investigation
open to the public and to the media, at which the accused and
defense counsel may conduct pretrial discovery and call and
cross-examine witnesses. The court-martial process allows open
and full discovery of the Government's information by the
accused, a process more open and automatic than discovery in
civilian criminal prosecutions. The speedy trial rules are more
strict in the military justice system than in the civilian
system. The statute of limitations that applies to most
military offenses is shorter than the Federal statute for
terrorism offenses. And the rules for exclusion of evidence are
more generous toward the accused than their civilian
counterparts.
While tradition and common sense, therefore, provide strong
support for alternative adjudication processes for terrorists
and other unlawful enemy combatants, military necessity is
perhaps the strongest reason of all. It is simply not feasible
in time of war to gather evidence in a manner that meets strict
criminal procedural requirements. Service personnel are
generally not trained to execute military combat and
intelligence missions while simultaneously adhering to law
enforcement standards, constraints, and concerns about chains
of custody and authentication of evidence. Asking our fighting
men and women to take on additional duties traditionally
performed by police officers, detectives, evidence custodians,
and prosecutors would not only distract from their mission, but
endanger their lives as well.
Intelligence gathering would also suffer terribly. It would
greatly impede intelligence collection essential to the war
effort to tell detainees before interrogation that they are
entitled to legal counsel, that they need not answer questions,
and that their answers may be used against them in a criminal
trial. Similarly, full application of court-martial rules would
force the Government either to drop prosecutions or to disclose
intelligence information to our enemies in such a way as to
compromise ongoing or future military operations, the identity
of intelligence sources, and the lives of many. Military
necessity demands a better way.
The Hamdan decision provides Congress and the President an
opportunity to address these critical matters together. We look
forward to working with you. Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Dell'Orto appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Dell'Orto.
We now turn to Steven Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel. Mr. Bradbury has a bachelor's
degree from Stanford, a law degree from the University of
Michigan magna cum laude; practiced law with Kirkland and
Ellis, where he was a partner for 10 years; and he has been in
his current position in the Office of Legal Counsel since 2004.
We appreciate your coming in, Mr. Bradbury, and the floor
is yours.
STATEMENT OF STEVEN G. BRADBURY, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Mr. Bradbury. Thank you, Mr. Chairman, Senator Leahy, and
members of the Committee.
The Supreme Court in Hamdan v. Rumsfeld held that the
military commissions that the President established were
inconsistent with the Uniform Code of Military Justice and the
Geneva Conventions. The Court's reasoning in Hamdan may be
surprising and disappointing to many of us. Certainly it is
without historical analogue. But it is not my intent to reargue
the case this morning. The administration will, of course, as
the President has said, abide by the decision of the Court.
It is important to point out, however, that the Court did
not question the authority of the United States to detain enemy
combatants in the war on terror, and its decision does not
require us to close Gitmo or release any terrorist. The Court
implicitly recognized that the vicious attacks of al Qaeda
triggered our right to use military force in self-defense and
that we are involved in an armed conflict with al Qaeda.
The Court, furthermore, made clear that its decision rested
only on an interpretation of current statutes and treaty-based
law. The Court did not address the President's constitutional
authority and did not reach any constitutional question.
Therefore, Hamdan now gives Congress and the administration a
clear opportunity to work together to address the matters
raised by the case, including the appropriate procedures
governing military commissions.
In moving forward after Hamdan, the basic question we must
answer is how best to pursue the prosecution of al Qaeda and
other terrorist combatants in this armed conflict. Hamdan held
that Congress had restricted the President's authority to
establish procedures for military commissions. The Court read
the Uniform Code of Military Justice to require presumptively
that captured enemy combatants, including unlawful combatants
such as al Qaeda terrorists, will get the same military court-
martial procedures that are provided for the members of our
armed forces.
But in trying al Qaeda terrorists for their war crimes, it
is not appropriate, as a matter of national policy, not
practical as a matter of military reality, not required by the
Constitution, and not feasible in protecting sensitive
intelligence sources and methods, to require that military
commissions follow all the procedures of a court-martial.
All the issues with military commissions identified by the
Supreme Court can be addressed and resolved through
legislation. That includes the use of hearsay evidence, for
example. It includes the use of classified information. It
includes the presence of the accused. All of these issues can
be addressed through legislation consistent with the
Constitution and pursuant to statute adopted by Congress. The
administration stands ready to work with Congress to do just
that so that trials of captured al Qaeda terrorists can move
forward.
In its decision, Mr. Chairman, the Court also addressed the
application of the Geneva Conventions to al Qaeda fighters in
the war on terror. On this point, it is important to emphasize
that the Court did not decide that the Geneva Conventions as a
whole applied to our conflict with al Qaeda or that members of
al Qaeda are entitled to the privileges of prisoner-of-war
status. The Court held, rather, that the basic standards
contained in Common Article 3 of the Geneva Conventions applied
to the conflict with al Qaeda.
The Court's conclusion that Common Article 3 applies to
members of al Qaeda is a significant development that must be
considered as we continue the healthy discussion between the
political branches about the rules governing the treatment of
terrorist detainees. Of course, the terrorists who fight for al
Qaeda have nothing but contempt for the rules of law and the
laws of war. They have killed thousands of innocent civilians
in New York, Washington, and Pennsylvania and thousands more in
numerous countries around the world. They advocate unrestrained
violence and chaos. They kidnap relief workers, behead
contractors, journalists, and U.S. military personnel, and bomb
shrines, wedding parties, restaurants, and hotels. They openly
mock the rule of law, the Geneva Conventions, and the standards
of civilized people everywhere, and they will attack us again
if given the chance.
The United States has never before applied Common Article 3
in the context of an armed conflict within international
terrorists. When the Geneva Conventions were concluded in 1949,
the drafters of the Conventions certainly did not anticipate
armed conflicts with international terrorist organizations.
We are now faced, however, with the task of implementing
the Court's decision on Common Article 3. Last year, Congress
engaged in significant public debate on the standard that
should govern the treatment of captured al Qaeda terrorists.
Congress codified that standard in the McCain amendment, part
of the Detainee Treatment Act, which prohibits ``cruel,
inhuman, or degrading treatment or punishment,'' as defined by
reference to the established meaning of our Constitution for
all detainees held by the United States. We all believed that
enactment of the DTA settled questions about the baseline
standard that would govern the treatment of detainees by the
United States in the war on terror.
That assumption is no longer true. By its interpretation of
Common Article 3 in Hamdan, the Supreme Court has opposed
another baseline standard--Common Article 3--that we must now
interpret and implement.
On the one hand, when reasonably read and properly applied,
Common Article 3 will prohibit the most serious and grave
offenses. Most of the provisions of Common Article 3 prohibit
actions that are universally condemned, such as violence to
life, murder, mutilation, torture, and the taking of hostages.
These, in fact, are a catalogue of the most fundamental
violations of international humanitarian law, and, indeed, they
neatly sum up the standard tactics and methods of warfare
utilized by our enemy, al Qaeda and its allies, who regularly
perpetrate gruesome beheadings, torture, and indiscriminate
slaughter through suicide bombings. Consistent with that view,
some in the international community, including the
International Committee of the Red Cross, have stated that the
actions prohibited by Common Article 3 involve conduct of a
serious nature.
On the other hand, although Common Article 3 should be
understood to apply only to serious misconduct, it is
undeniable, Mr. Chairman, that some of the terms in Common
Article 3 are inherently vague.
Chairman Specter. Mr. Bradbury, how much longer will you
require?
Mr. Bradbury. Approximately 1 more minute.
Chairman Specter. Thank you.
Mr. Bradbury. Common Article 3 prohibits outrages upon
personal dignity, in particular, humiliating and degrading
treatment--a phrase that is susceptible of uncertain and
unpredictable application.
Furthermore, the Supreme Court has said that in
interpreting a treaty provision such as Common Article 3, the
meaning given to the treaty language by international tribunals
must be accorded respectful consideration, and the
interpretation adopted by other state parties to the treaty are
due considerable weight. Accordingly, the meaning of Common
Article 3--the baseline standard that now applies to the
conduct of U.S. personnel in the war on terror--would be
informed by the evolving interpretations of tribunals and
governments outside the United States.
Many of these interpretations to date have been consistent
with the reading that we would give to Common Article 3.
Nevertheless, the application of Common Article 3 will create a
degree of uncertainty for those who fight to defend us from
terrorist attack. The meaning of Common Article 3 is not merely
academic. The War Crimes Act makes any violation of Common
Article 3 a felony offense.
We believe, Mr. Chairman, that the standards governing the
treatment of detainees by the United States in the war on
terror should be certain and that those standards should be
defined by U.S. law in a manner that will fully satisfy our
international obligations.
Mr. Chairman, notwithstanding the problematic aspects of
the Court's opinion, the decision in Hamdan gives the political
branches an opportunity to work as one to establish the
legitimate authority of the United States to rely on military
commissions to bring the terrorists to justice. It is also an
opportunity to come together to affirm our values as a Nation
and our faith in the rule of law. We in the administration look
forward to working with Congress to protect the American people
and to ensure that unlawful terrorist combatants can be brought
to justice consistent with the Supreme Court's guidance.
I look forward to discussing these issues with the
Committee this morning. Thank you, Mr. Chairman.
[The prepared statement of Mr. Bradbury appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Bradbury.
We will now proceed to the 5-minute rounds for members'
questioning.
At the outset, I would ask each of you to review Senate
bill 3614, which was introduced on June 29th, and give us your
comments, where you think it is appropriate.
Mr. Bradbury has said that he believes it is not necessary
to follow all the procedures from courts-martial, and Mr.
Dell'Orto has indicated his agreement with Mr. Bradbury's
statement. We would like to have a specification from each of
you as to which provisions for the rules of courts-martial you
think should not apply, and we would ask in addition that you
supply to the Committee draft legislation which you think would
be adequate to meet the test of the Supreme Court and
adequately protect the classified, secret information which you
have alluded to in your opening statements.
The opening statements contain the expected level of
generalization, and if you will provide responses to what I
have asked for, do you think 2 weeks would be sufficient, Mr.
Dell'Orto?
Mr. Dell'Orto. I believe so, Mr. Chairman.
Chairman Specter. Mr. Bradbury.
Mr. Bradbury. Well, Mr. Chairman, I am happy right now to
talk about specific provisions of the UCMJ.
Chairman Specter. Well, I am going to ask you about some,
but I want you to respond to S. 3614 and the court-martial
provisions that you do not think should be followed and draft
legislation. We want to proceed expeditiously in coordination
with the Armed Services Committee, and then ultimately with the
House, so let's say 2 weeks from today to have the materials to
us.
Mr. Bradbury. I appreciate that. Mr. Chairman, I will
provide responses on the draft legislation that you referenced
and the specific provisions--
Chairman Specter. Well, let me proceed now--
Mr. Bradbury. But, Mr. Chairman, only the President has the
decision to introduce legislation from the executive branch, so
the administration stands ready to work with Congress on
legislation. I cannot commit, as I sit here now, that the
administration will submit a particular bill. But I know the
President looks forward to working and moving ahead quickly
with Congress--
Chairman Specter. Mr. Bradbury, we understand that it is
the President's decision in the executive branch. What I am
trying to do is establish the time parameters so we can get
moving.
Mr. Bradbury. I will take that back. Thank you.
Chairman Specter. Okay.
Let me take up three issues of criminal procedure: right to
counsel, evidentiary standards, and the use of incriminating
statements. Is there any doubt that either of you have that
there has to be a right to counsel in proceeding by the
military commission trying people for war crimes?
Mr. Dell'Orto. No doubt in my mind, Mr. Chairman.
Chairman Specter. Mr. Bradbury.
Mr. Bradbury. Of course, Mr. Chairman, that was a right
that was provided under the military commission procedures.
Chairman Specter. With respect to enemy combatants who are
not to be tried, Mr. Dell'Orto, do you think it is necessary to
give those individuals counsel when their status is reviewed?
Mr. Dell'Orto. I do not believe there is an absolute--there
is a right to a detained enemy combatant to counsel to
represent his interests with respect to his detention. We do
provide--
Chairman Specter. Well, the question isn't whether there is
a right. The question is whether we should legislate a right.
Do you think that Congress would be correct if we give enemy
combatants who are detained a right to counsel so that they can
have an opportunity to contest the reasons for their detention?
Mr. Dell'Orto. I would disagree that we should legislate
that provision with respect to detention.
Chairman Specter. With respect to incriminating statements
which have been made by detainees in Guantanamo, Mr. Bradbury,
do you think that the rules which exclude coerced confessions
should be applied by the military commissions as they are in
civilian courts?
Mr. Bradbury. Well, Mr. Chairman, as a matter of policy,
the Detainee Treatment Act included provisions about statements
obtained through coercive questioning and indicated in the
context of the CSRTs, the Combatant Status Review Tribunals,
that the CSRTs should weigh the probative value of those
statements, and they could determine--
Chairman Specter. So if the statements have high probative
value, they ought to be admitted, even if they are coerced?
Mr. Bradbury. It should be available to the decisionmaker
in the CSRT process, for example, to weigh the probative value
against the prejudice of the statements. I think that is the
approach Congress took in the Detainee Treatment Act. We think
that is an appropriate approach for the CSRTs--
Chairman Specter. My time is about up. I want to ask one
more question before the red light goes on. How much evidence
should be presented to keep people detained in Guantanamo in
enemy combatant status? I would like each of you to answer.
Mr. Bradbury. Do you mean the standard of proof or the
level of evidence?
Chairman Specter. Correct.
Mr. Bradbury. Well, that is a policy question. Obviously,
the CSRTs that have been created are not required by
international law. It is a policy determination. It is open for
Congress to look at that. We think--
Chairman Specter. Mr. Bradbury, it is a policy question.
What is your recommendation to Congress to establish the
policy?
Mr. Bradbury. We think that it does not necessarily have to
be a preponderance-of-the-evidence standard, that perhaps a
substantial-evidence standard could be used. But that is a
question that we believe should be left up to the Department of
Defense with respect to the CSRTs. In other words, we think the
approach taken in the Detainee Treatment Act which allows the
Secretary of Defense to design standards and procedures for
CSRTs and then provides for court review of CSRT determinations
is an appropriate one. And when the Congress addresses the
issue of military commission procedures, at least initially we
do not think there is a need to revisit the question of CSRT
procedures. We think that was decided in the Detainee Treatment
Act and that is an appropriate approach that has not been
called into question by the courts. We think that should stay
the way it is and that what we need to address in legislation
is the military commission procedures and court review process.
Chairman Specter. Mr. Dell'Orto, I am not going to ask you
to answer the question because I want to move on, but just a
final comment, Mr. Bradbury. I doubt very much that Congress is
going to be disposed to leave these issues to the Department of
Defense. When you talk about policy, we understand that it is a
policy matter. But the Congress is going to establish the
policy. That is our job. So I would like to have your
recommendations on the policy as to what Congress ought to
establish. We are not going to leave it to the Department of
Defense or give the Department of Defense a blank check. We are
going to establish the standards and the policy, but we want
your input before we do it.
Senator Leahy.
Senator Leahy. Well, thank you, Mr. Chairman. I was
interested in listening to Mr. Bradbury. I had spoken about
trying to get away from thinking we could put all this thing
down into kind of a bumper sticker sloganeering on the war.
Mr. Bradbury, you spoke at great length about the
beheadings by al Qaeda, the murders of wedding parties, and so
on, something all of us find reprehensible. Are you suggesting
that because we do not resort to that same thing that the
United States is at a disadvantage?
Mr. Bradbury. No, Senator, I am not.
Senator Leahy. Okay. I thought we would clear that up
because it certainly sounded otherwise in your testimony.
Now, this Committee, as I mentioned before, held hearings a
few weeks after the President's military order was released in
November of 2001, 5 years ago. We asked the Attorney General
and the administration to work with us in a bipartisan way to
establish a fair and effective, legitimate system for trying
detainees in Guantanamo Bay. We offered to remove all doubts
about their legality. And the response we received from your
administration, the Bush-Cheney administration, was that you
had all the power you needed, and basically you told us to take
off.
Now, 4\1/2\ years later, we find nobody has been brought to
justice under that system; nobody has been convicted. The
Supreme Court has said what the President set up on his own was
illegal and that he is breaking the law by doing it. Is there
any admission on the part of the Bush-Cheney administration
that perhaps they were wrong?
Mr. Bradbury. Well, Senator, I will say that in 2001 it was
completely reasonable, given the state of Supreme Court
precedent, to approach the military commission issues the way
the administration--
Senator Leahy. Well, I would disagree with that, Mr.
Bradbury. We have had both Republicans and Democrats that said
you need legislation. These are Republicans and Democrats who
think about this a great deal, as I know you do, and who felt
there was not a clear thing that would allow the President
basically to act on his own, take the law into his own hands,
and that is why Republicans and Democrats alike have told the
administration let's work on doing something that might
actually stand up in any court.
Now, 4 years later, we still have not seen anybody
convicted. We have had a whole lot of litigation, a lot of
wasted time. My question is: In hindsight, would it not have
been better for the Bush-Cheney administration, instead of
saying they would do this alone, to actually have worked with
the Congress and put together something, as we would have, that
would have stood up and, having read the Hamdan decision, would
have been upheld?
Mr. Bradbury. Well, I will say, Senator, that it has never
been the case in the history of the country that the procedures
of military commissions have been established by legislation of
Congress. That has always been something that has been left, in
time of war and armed conflict, to the executive branch, and
that is the way the executive branch proceeded here.
Now, with 20/20 hindsight, obviously we are where we are.
The Court has now spoken. It is now incumbent, we think, on
both political branches to get together. We very much want to
work with you--
Senator Leahy. I am glad to hear that because that was a
completely different attitude than you had 5 years ago, and had
there been that attitude 5 years ago, we probably would not be
in the situation where we are, which is not a single detainee
brought to justice.
Now does the administration intend to try any of these
detainees through courts-martial?
Mr. Bradbury. No, Senator. We do not believe, at least in
general, that the use of the court-martial proceedings are
appropriate. We think--
Senator Leahy. We have a letter from retired judge
advocates, including two former judge advocates general of the
Navy, a former judge advocate general of the Army, and two
brigadier generals, saying that we should start with the
premise that we already have--to use their words, ``start with
the premise that the United States already has the best system
of military justice in the world, and that throughout our
Nation's history both military commissions used to try enemies
captured in war and courts-martial used to try our own
personnel have applied the same basic procedures. We are
fortunate enough to have this tried and true system which would
be used to bring terrorists to justice.'' Are these retired
judge advocates general wrong?
Mr. Bradbury. Well, Mr. Dell'Orto I think can speak better
than I to the issue. I will say from what little I know--and I
will not question the expertise of the retired JAGs--the court-
martial procedures are wholly inappropriate for the current
circumstances and would be infeasible for the trial of these
alien enemy combatants. Hearsay rules required by the UCMJ
simply cannot be squared with the proceedings we are talking
about here, and I will say, Senator, that a good example to
look to is the international criminal tribunals, for example,
for the former Yugoslavia and for Rwanda, which regularly allow
the use of hearsay evidence, as long as the evidence is
probative and reliable in the determination of the fact finder,
and as long as it is not outweighed by undue prejudice--a
simple approach which is consistent with international practice
in international criminal tribunals trying war crimes, which is
what we are talking about here. So I think that approach is the
approach to look to.
We do not think it is appropriate, for example, to start
with the UCMJ in its full panoply of procedural protections and
rights and then talk about individual procedures that might be
stripped out.
Senator Leahy. Mr. Dell'Orto, do you agree?
Mr. Dell'Orto. I do agree, Senator.
Senator Leahy. Do you think these retired JAGs are wrong?
Mr. Dell'Orto. Well, first of all, I do not know who they
are, Senator, and I would suspect that there is going to be
considerable disagreement with that view from other members of
the uniform legal leadership.
Senator Leahy. I will put their letter in the record and
make sure you have a copy. It is Major General John Pugh, U.S.
Army; Rear Admiral Donald Guter; Rear Admiral John D. Hudson;
Brigadier General David Brahms, U.S. Marine Corps; and
Brigadier General James Cullen, U.S. Army, all retired.
Chairman Specter. Without objection, the letter will be
made a part of the record.
Under our early-bird rule, we call on Senators in order of
arrival, and they will be Senator Sessions, Senator Kyl,
Senator Hatch, Senator Cornyn, and Senator Graham on the
Republican side, and Senator Feinstein, Senator Kohl, Senator
Feingold, Senator Biden, Senator Kennedy on the Democratic
side.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
With regard to the decision of the Court and the court-
martial process, it seems to me that they did not require a
following of the specific standards of the United States court-
martial. Is that correct?
Mr. Bradbury. That is correct, Senator.
Senator Sessions. And I guess Justice Stevens suggested
those were general procedures that would be considered in
drafting, creating a legitimate procedure?
Mr. Bradbury. Well, Senator, of course, the Court only was
addressing the President's authority under existing statutes.
And what the Court said was under existing statutes, when the
President sets up military commissions, presumptively their
procedures have to be uniform with courts-martial unless there
is a very strong, practical reason why they should vary from
that. And they did not accept the President's reasons.
With respect to Congress and your choices in designing
procedures, the Court set no limitations on that, did not speak
to the limitations that might apply under the Constitution.
Senator Sessions. Well, I think this is a key point, and I
think we need to focus on it. This Congress has got to be
realistic. I was in Iraq. I talked to the team that
investigates bombings, examines the material and the bomb
explosives to identify the people who may have done it. They
identified a bomber that had made, they thought, many, many
bombs, and this person was released on some technicality.
All I would say is this is a life-and-death matter. People
are dying in Iraq and can die in this country on a regular
basis, and we have got to provide people with a legitimate
trial process. I have no doubt about that. And I do not believe
we have any basis or legitimacy in torture, which the President
has consistently rejected.
But let's talk about some of the practical problems of
trying people captured somewhere on the battlefield in
Afghanistan or in Iraq. They are now being held in Guantanamo.
Mr. Dell'Orto, thinking about it from the Department of
Defense's position, have we got to have every witness who was
present there at the time at the scene? We may not even know
who they are, correct?
Mr. Dell'Orto. Correct, Senator.
Senator Sessions. And soldiers who go out and kick in a
door and find bomb materials and information that implicates a
certain person, they are not police officers; they do not
maintain chain of custody like the average police officer is
trained to do. Would they?
Mr. Dell'Orto. That is absolutely correct, Senator.
Senator Sessions. What about if there might be Iraqi
citizens participating. Have we now got to search them out all
over the world and bring them here because they may have been a
witness to the events?
Mr. Dell'Orto. It is a practical problem with respect to
conducting trials away from the site of the offense.
Senator Sessions. I think there are a lot of things that
concern me about that. When we talk about coerced confessions,
I am a prosecutor and I know how strict the rules are in the
United States and in the courts-martial with regard to coerced
confessions. But I have never believed--and a number of
Justices on the Supreme Court have so dissented--that it is
required you read someone the Constitution before you ask them
questions about whether or not they were involved in an act, a
criminal act. But we do that under the Miranda rules. We give
them all these warnings.
Do you think that those kind of warnings are required
before someone should be tried under this commission process?
Mr. Dell'Orto. Senator, under the Uniform Code of Military
Justice, the right to remain silent, the so-called Miranda
rights kick in far earlier than they do in a civilian police
apprehension setting. And so--
Senator Sessions. They are even more strict in the court-
martial military justice system than in the court system of the
United States.
Mr. Dell'Orto. That is the point, Senator.
Senator Sessions. And then we would be providing these
terrorists who have been captured by untrained military
officers, by soldiers who are untrained in those issues, we
would be trying them and providing them greater privileges than
are legitimate under the--
Mr. Dell'Orto. Under our civilian practice.
Senator Sessions. Civil law.
Mr. Dell'Orto. Yes, Senator.
Senator Sessions. And with regard to coercion, Mr.
Chairman, let me just say this: We do not allow any coercion.
Do you remember the great burial speech case where, 5-4, the
U.S. Supreme Court ruled that a police officer had a man in the
car with him, he had said he wanted counsel, he said, ``Well,
that young child is out there in the snow. You ought to tell
where that body is so they can have a Christian burial.'' That
was the statement. And he said, ``OK, turn left here,'' and
took them to the body. They struck that down as a coercive
statement.
We do not need to be providing that kind of privileges to
people captured on the battlefield. I think this is very, very
serious. It has tremendous practical implications. We want a
fair trial. We want a just trial. We want to give people
legitimate privileges that are necessary to a just trial. But
all the provisions that are engrafted in the United States
Code, State law, and Federal constitutional privileges are not
required in military commissions. They never have been.
So as we go forward, I just would urge that we be careful,
Mr. Chairman, that we think this through, consider the
practical implications, and I am sure you will.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman, and
welcome, gentlemen. Let me begin by trying to get a couple of
facts straight. What is the detainee population today, not just
Guantanamo but the total detainee population today?
Mr. Dell'Orto. We are talking about the war on terror,
Senator?
Senator Feinstein. Yes.
Mr. Dell'Orto. I would say that it is probably on the order
of about a thousand.
Senator Feinstein. How many of the thousand have had some
form of hearing?
Mr. Dell'Orto. Well, all those that we have at Guantanamo
have had their Combatant Status Review Tribunal hearings and at
least, I believe, one Administrative Review Board hearing.
Senator Feinstein. And the Guantanamo population is around
400 today?
Mr. Dell'Orto. It is a little bit higher than that,
probably on the order of about 450, Senator. But, of course, it
does vary.
Senator Feinstein. So everybody there has had a hearing.
Now, how many--and I do not know the correct words, but let me
struggle. How many convictions and sentences have been leveled
from the hearings?
Mr. Dell'Orto. Well, those are administrative
determinations, Senator, that determine, with respect to the
Combatant Status Review Tribunal, first whether those people
continue to be unlawful enemy combatants. So that is the
first--that is the second determination that is made as to the
appropriateness of continuing to detain them.
Senator Feinstein. Thank you. That is helpful. How many
then are unlawful enemy combatants?
Mr. Dell'Orto. Well, all of those who are currently at
Guantanamo have--
Senator Feinstein. All 425, or whatever that--
Mr. Dell'Orto. All 450, 425, whatever that current number
is.
Senator Feinstein. Okay.
Mr. Dell'Orto. And the second review is the Administrative
Review Board, which is conducted on an annual basis, to
determine whether the person should continue to be detained.
Senator Feinstein. And how many of those hearings have been
held?
Mr. Dell'Orto. At least one per detainee, is my belief at
this point.
Senator Feinstein. At Guantanamo.
Mr. Dell'Orto. At Guantanamo, we may be actually going
beyond that at this point for the second round or third round
of--probably the second round of those.
Senator Feinstein. Okay. Now, this morning's Financial
Times is reporting that the Pentagon has reversed its policy on
detainees and stated that the protections provided by the
Geneva Conventions will be afforded to those at Guantanamo. Mr.
Bradbury, in your written testimony, you state, and I quote,
``The Supreme Court's conclusions that Common Article 3 applies
to members of al Qaeda is a significant development that must
be considered as we discuss what standards and procedures
govern.''
Is the Financial Times correct?
Mr. Dell'Orto. Senator, if I may, let me try to answer
that. The Supreme Court spoke in Hamdan when it issued its
decision. Based upon that decision, the Department determined
that it would be appropriate to announce that decision to our
forces and to ensure that what we believed to be the case prior
to the decision was still the case, and that is that our people
were being treated humanely. In order to ensure that that word
got out and also that we had the opportunity to have our
commanders in the field and others with responsibilities in
this area report back that what they were doing was consistent
with what our guidance had been previously, that memo went out.
It does not indicate a shift in policy. It just announces the
decision of the Court and with specificity as to the decision
as it related to the commission process.
Senator Feinstein. Well, I know you regard the Geneva
Conventions as vague, but let me ask it this way: Today, are
the Geneva Conventions being carried out, Common Article 3?
Mr. Dell'Orto. We believe that the treatment that all
detainees are receiving under DOD control, under DOD custody,
are being treated in a manner that meets the Common Article 3
standard or exceeds it.
Senator Feinstein. So the answer is yes?
Mr. Dell'Orto. Yes.
Senator Feinstein. Mr. Bradbury, in reading your testimony,
beginning on page 4, you say that it is not possible to provide
Miranda rights, a right to counsel, to utilize rules of
evidence, you cannot get reliable hearsay evidence, no sworn
testimony.
Based on all of the areas that you feel that provide due
process to people are not possible to grant in a setting such
as Guantanamo, do you believe that the Guantanamo facility
still serves a useful purpose following the Supreme Court
decision? Or would it be better to have a commission, if it was
authorized by the Congress, function in surroundings closer to
the availability of witnesses and evidence?
Mr. Bradbury. Well, Senator, I am not in a position to
express a military judgment, but it is my sense that Guantanamo
certainly provides an important function of keeping dangerous
terrorists off the battlefield. With legislation from Congress,
military commissions for those detainees held at Guantanamo can
move forward again. And just to clarify, in my testimony I am
not suggesting they should have no right to counsel in military
commissions. I am simply contrasting what we believe the
military commission process should be against the Uniform Code
of Military Justice requirements that persons who are suspected
of crimes, as soon as they are suspected of crimes, get their
Miranda warnings and get free access to counsel immediately.
And it is that kind of extraordinary access to counsel and
Miranda warnings that we think, for example, would be
inconsistent with simply questioning detainees to get vital
intelligence from them.
So that kind of access to counsel at that point in the
proceedings, we are not saying that there should not be access
to counsel for military commissions, absolutely not. The
military commissions that the Secretary of Defense has set up
does provide a right to counsel, a right, in fact, to both
Government counsel provided by the military, a trained
Government defense counsel, and the right to private counsel of
the detainee's choice, subject to certain conditions. And we
would see no reason to change that in any legislation that we
might talk to you about.
Senator Feinstein. My time is up. Thank you, Mr. Chairman.
Thank you.
Chairman Specter. Thank you, Senator Feinstein.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I appreciate Senator
Feinstein's referral to that article in the Financial Times
because I think it is important to clarify what the Defense
Department's position is. And as I--well, Mr. Chairman, I ask
unanimous consent that the statement of Gordon England
regarding the application of Common Article 3 dated July 7,
2006, be inserted in the record at this point.
Chairman Specter. Without objection, it will be made part
of the record.
Senator Kyl. And it is very clear that what Secretary
England was saying is the Court has spoken, and, therefore--and
I am quoting now--``you will ensure that all DOD personnel
adhere to these standards. In this regard, I request that you
promptly review all relevant directives, regulations, policies,
practices, and procedures under your review to ensure that they
comply with the standards of Common Article 3.''
In other words, Mr. Chairman, he is simply saying, in
effect, that until something changes, we have got to follow
what the Court said and just make sure that you do so, and I
think that is appropriate under the circumstance.
I would like to ask three questions here. First of all, to
distinguish between the matter of holding detainees to prevent
them from returning to the battlefield from a decision to
prosecute them, just give us a sense, Mr. Dell'Orto, of why
that decision is sometimes made and the rough number of people
compared to the total detained to whom it would apply.
And, second, I would like to have you just emphasize a
little bit more the distinction between the rationale for our
soldiers, whom we put in harm's way and send into dangerous
places to perform missions, and grant them rights under the
UCMJ when they are accused of a crime, the rationale for the
rights granted to them versus the rationale for treatment of
terrorists captured on the battlefield, is there a rationale
for treating them equally?
And, finally, if you could be a little bit more specific in
detailing the damage to the prosecution, damage to intelligence
collection, and damage to intelligence protection if you apply
the UCMJ to terrorists, and I would be happy to specify that
third question if I have gone too far here.
Mr. Dell'Orto. With respect to the first part of the
question, Senator, I think you were asking what decisions are
made with respect to detention versus what decisions are made
with respect to prosecution.
Senator Kyl. Right.
Mr. Dell'Orto. When we detain people on the battlefield, it
is consistent with historical law of armed conflict that those
people may be detained until the end of the conflict, whenever
that may be. When prisoners were picked up during World War II,
at the time of their capture they had no way of knowing how
long they would be detained. And, indeed, we detained upwards
of half a million principally German and Italian soldiers
within the United States during World War II until the conflict
ended, and even beyond, before they could be repatriated.
And so we go through that process with respect to these
people. They are picked up on the battlefield. They are
screened on the battlefield. Some number of them do wind up at
Guantanamo, and some of them do remain in Afghanistan. Those
detainees can be detained under the law of armed conflict until
such time as this conflict ends. Now, granted, it may take a
significant period of time. We have already been at this longer
than we were during World War II.
We have taken some extraordinary steps in that we have
returned some of these individuals to their countries based
upon an assessment while the hostilities continue that they do
not pose a significant threat to this country.
Now, there are some number of those who we believe to have
committed acts that are so significant as unlawful combatants
that they merit trial by military commission and for violations
of the law of war. And so some number of those people are under
scrutiny right now--some have been charged, others are under
scrutiny--for the process of a military commission, whether--
now based upon what this body proposes by way of legislation
that is ultimately signed by the President, whatever form that
might be. There are some number of those people, and probably
on the order of right now I would say 50 to 80 or 100 or so who
probably are serious candidates for commission processes.
And so that is where we deal with those folks, and those
people ultimately when they are tried, if they are convicted,
will serve some sort of a sentence that is imposed by that
commission.
Senator Kyl. Before the time runs out, let me forget the
third question for right now but at least ask you to comment on
the second question I asked, which is: Is there a distinction
between the rationale for the rights provided to members of our
military under the Uniform Military Code of Justice and the
rationale for the rights provided to terrorists?
Mr. Dell'Orto. We have taken great care and this body has
taken great care to ensure that our soldiers, sailors, airmen,
and marines get the greatest protections possible in our court-
martial process, going back to 1950, the Military Justice Act
of 1950, in the aftermath of World War II. Given the concerns
over the types of proceedings that were conducted by the court-
martial equivalent during World War II, we did provide greater
protections for our servicemembers.
In 1968, we did the same as a result of concerns about lack
of a trial judiciary, the role of the judge in a court-martial
proceeding and other things, we further enhanced our system.
And in 1983, we brought the Federal Rules of Evidence, to the
extent that they can be applied, into that system as well--all
because we wanted to ensure that our soldiers, sailors, airmen,
and marines and Coast Guardsmen had the best possible
protection when they underwent the disciplinary process that is
part of a court-martial.
It contains numerous rights for an accused that go well
beyond what, as I have said, we have in our civilian courts, go
well beyond what takes place in domestic criminal courts in
other countries. It would be ludicrous in my estimation to
accord those sorts of rights at that level to that degree to
the sorts of people we have here who would get far less in the
way of protections were they tried in their home countries,
wherever those countries might be.
Senator Kyl. Thank you.
Chairman Specter. Thank you very much, Senator Kyl.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Gentlemen, in defending the need for military tribunals,
the administration has claimed that the tribunals were
important for swift justice in prosecuting enemy combatants,
and yet here only several years later, only ten people have
been charged, probably as a result of the questionable legal
status of the tribunals themselves.
Gentlemen, can we agree that there has to be a better way
to prosecute the terrorists in our custody and achieve the
administration's express desire for swift justice?
Mr. Bradbury. Well, Senator, I would say that certainly in
the wake of the Court's decision, the only way forward with
confidence to have military commissions where we can now
swiftly bring them to justice is through legislation that puts
military commissions on a solid footing in the eyes of the
Court.
The Court did leave open the theoretical possibility that
the President could come back on his own and provide more of a
detailed justification for why in particular instances he
thinks it is impractical to use the court-martial proceeding.
So the Court did leave us that option, but, frankly, I think at
this point, as you suggest, the President believes it is better
to move forward jointly with Congress to get legislation we can
all agree on to define the military commission authorization
and to some extent the procedures so that we can move forward
and be ensured that at the end of the day they will be upheld
by the courts.
Mr. Dell'Orto. Senator, I would say that given the system
that has been designed as structured, were this body to render
its approval for that system as it is currently configured with
all the rights that are embodied in that system and allow us to
go forward would be a very expeditious way to move these trials
very quickly.
Senator Kohl. Gentlemen, the majority's opinion in Hamdan
has been characterized by some as a rebuke of this
administration's expansive theory of executive power. Do you
agree with that characterization?
Mr. Bradbury. I actually do not, Senator, because what I
emphasized at the beginning, the Court carefully, I think, made
it clear it did not reach constitutional issues, did not
address the President's inherent authority under Article II,
kept itself limited, and Justice Kennedy, who provided the
fifth vote, made it very clear in his concurring opinion that
his joining of the majority was quite limited and focused to
two provisions in the UCMJ and the Common Article 3 provision
of the Geneva Conventions that we have discussed. And all of
the Justices, all eight of them, including Justice Breyer, for
example, in his separation opinion, made it very clear that all
of the issues the Court addressed could be addressed and
resolved through legislation by Congress.
Mr. Dell'Orto. I disagree with the characterization that
you report, Senator.
Senator Kohl. Gentlemen, in Hamdan, the Court said there
were two options available for trying terrorist suspects in
Guantanamo under current law: first, the administration could
use the existing courts-martial system; and, second, it could
use military commissions that comply with the requirements of
the Uniform Code of Military Justice and Common Article 3 of
the Geneva Conventions.
Are either of these options, in your opinion, adequate?
Mr. Dell'Orto. Senator, I would say, consistent with my
earlier answer, that the most expeditious way to do it would be
to essentially ratify the process that is already in place with
the military commissions. I think to rework, even modestly, the
court-martial process to account for the difficulties, the real
practical difficulties in trying these particular combatants
for their war crimes would cause probably a greater period of
time, probably less productive debate, and ultimately cost us
time in getting on with the business of trying these folks. And
so I would urge that we move forward with the military
commission process that the Supreme Court seems to--apparently,
based upon what you say, has been open to us--has left open to
us as an option.
Senator Kohl. Mr. Bradbury.
Mr. Bradbury. Yes, certainly as I have said before,
Senator, I do not think the use of the UCMJ procedures is
appropriate or is feasible. And I spoke about the option of the
President acting unilaterally to try to put in place, again,
the military commission process. That would entail, in effect,
going back to the courts and having the same discussion with
the courts that we intend to have with the Congress about the
need for each of the provisions in the military commission
process, why it is impractical to use other provisions of the
UCMJ, et cetera.
I think the risk there is that you can only have that
dialog after the fact with the Court in litigation briefs. The
Court may disagree, and then you are right back to where we are
now. So we think it is better at this point to have that dialog
with Congress.
We do think when the Congress looks at the current
procedures that have been set up for the military commissions,
the Congress will agree that there are good, sound policy
reasons and practical need--reasons of practical necessity to
have the provisions that are currently in there. But it is
obviously up to Congress to look at those provisions. We think
that that is something that does need to happen now in the wake
of the court case, and we are ready, willing, and able to work
quickly with Congress to make it happen.
Senator Kohl. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
As the Ranking Member of the Senate Intelligence Committee,
I am very concerned that classified information does not fall
into the hands of the enemy, and that is only one of the
reasons why the Hamdan decision troubles me greatly.
Now, the Court stated that the rules in the manual for
court-martial must apply to military commissions unless
impracticable. At least that is the way I interpret it. Those
rules are codified in the Uniform Code of Military Justice, but
that raises a number of questions, and Mr. Dell'Orto, you
pointed out in your statement, in your testimony, that courts-
martial are actually more solicitous of the rights of the
accused than our own civilian courts.
Now, let me ask both of you to comment on one example and
perhaps add your own. In an Article 32 proceeding, which is the
military version of a grand jury, the investigation is
conducted by an impartial investigating officer and is open to
the public. Am I right?
Mr. Dell'Orto. Generally, they are open to the public,
Senator.
Senator Hatch. Unless the accused is disruptive, he must be
present and has a right to call his own witnesses and cross-
examine the Government witnesses and, like I say, call his own
witnesses. That is right, isn't it?
Mr. Dell'Orto. That is correct.
Senator Hatch. Okay. If the accused chooses to make ``an
unsworn'' statement at the Article 32 proceeding, it is not
subject to cross-examination by Government counsel, right?
Mr. Dell'Orto. Senator, I am not sure about that, off the
top of my head. Certainly at trial, with respect to sentencing,
that is a permissible way for the accused to offer his
statement to the Court. I am not sure that applies--I would
have to go back and take a look at the rules.
Senator Hatch. Would you check on that for us?
Mr. Dell'Orto. I will.
Senator Hatch. Because that is my understanding.
Now, does the Supreme Court's decision not open the
possibility that classified information presented in an Article
32 proceeding would be compromised and possibly fall into the
hands of terrorists?
Mr. Dell'Orto. Certainly that classified information could,
and that is a huge concern in these proceedings.
Senator Hatch. Under the decision, will not the suspected
terrorist be exposed to our classified information?
Mr. Dell'Orto. If we proceed under a court-martial process,
it would call for disclosure to the defendant or exclusion of
the evidence so that it is not presentable in the case against
him.
Senator Hatch. So you might not be able to make the case--
Mr. Dell'Orto. That is possible, Senator.
Senator Hatch [continuing].--With the evidence that you
have.
Mr. Dell'Orto. Possible.
Senator Hatch. Or is this one of the considerations that
would make application of these court-martial procedures
impracticable?
Mr. Dell'Orto. That is one of the key considerations in my
estimation, Senator.
Senator Hatch. Okay. Now, Mr. Bradbury, do you care to
comment on any of those questions or any of those comments?
Mr. Bradbury. Well, I will just say quickly, Senator, that
an Article 32 investigation, as it is done under the UCMJ,
makes absolutely no sense in the context of a military
commission prosecution. That is a very generous investigation
procedure, much more generous and open than a grand jury
proceeding. The defendant gets to participate fully, as you
suggest, in the investigation--
Senator Hatch. But some are interpreting this decision to
require that, right?
Mr. Bradbury. Well, currently it does since it requires the
President to use military commission--excuse me, court-martial
proceedings if he is going to move forward with military
commissions. And that is part of a court-martial proceeding.
As to classified information generally at trial, the
procedures under Article 46 of the UCMJ require the prosecution
to share with the defendant any classified information that the
prosecution intends to use as evidence in the trial, and we
think that, again, that kind of absolute right is unworkable
and inappropriate because there will necessarily be some
cases--
Senator Hatch. Especially in a wartime situation.
Mr. Bradbury. That is correct, where there is some
classified information obtained, sources and methods of
intelligence that simply cannot be shared with the defendant
himself who is a terrorist. But obviously we are talking about
circumstances under the current rules where we do provide
counsel and the counsel would have access to that information.
And then the military commission panel itself would be able to
judge whether summaries or substitutes should be used as
evidence in the trial and exposed to the detainee and would be
able to judge whether the exclusion of the detainee from any
aspect of the proceedings calls into question the fundamental
fairness of the proceedings. That is a judgment that has to be
made on a case-by-case basis by the commission panel, and then
it can be reviewed. Under the DTA, it can be reviewed by the
D.C. Circuit.
Senator Hatch. Let me just ask one other question. You said
in your testimony, Mr. Bradbury, that you were concerned about
the fact that Miranda rights would have to be given under
certain circumstances, that hearsay testimony would be
disallowed. Explain that to all of us so that people watching
will understand what you are talking about there.
Mr. Bradbury. Well, of course, Miranda rights, as we all
know, tell the defendant, ``You have the right to remain
silent. You have the right to a lawyer.''
Senator Hatch. Right off the bat.
Mr. Bradbury. Right off the bat. And under the UCMJ, of
course, it is much more protective than in civilian criminal
courts. In civilian courts, it does not apply until the person
is in custody for questioning, custodial questioning. Under the
UCMJ, it applies as soon as there is a suspicion that the
person may have committed a crime. At the first point of
suspicion, articles of UCMJ require the Government prosecutors
to inform the person of the suspicion and to advise the person
he has a right to remain silent and he has a right to a lawyer
and that a lawyer will be provided free of charge to him.
Of course, if you did that with detainees in the war on
terror, you are not going to get any further information out of
them at that point.
Senator Hatch. Well, it could make the difference between
whether thousands die or not.
Mr. Bradbury. It could. You are not going to--it pretty
much will put a stop to the questioning of the detainee for
intelligence purposes.
Senator Hatch. Hearsay?
Mr. Bradbury. In point of fact, Senator, it would obligate
the soldier of the field, the corporal who beats down, knocks
down the door, to advise that detainee of his rights if he
believed that detainee to have committed a crime.
Senator Hatch. Hearsay?
Mr. Bradbury. On hearsay, Senator, of course, that might
require--prohibition on the use of hearsay might require front-
line troops to come home from the battlefield to participate in
legal proceedings. So, in other words, they will have to fight
the terrorists not only on the battlefield, but also in the
courtroom.
In addition, it is very difficult to get all the witnesses
that may be needed from whom sworn statements may be taken or
statements that are reliable and probative may be taken on the
battlefield from other terrorists, for example, from
collaborators with the person who is on trial. And the
requirement that those persons have to be present in court for
their statements to be received into evidence is not a
requirement, for example, that is imposed in the international
criminal tribunals for Yugoslavia or for Rwanda, because it is
understood that when you are trying war crimes, it is not
always practicable that the people who were the witnesses to
the acts can be brought in from the far-flung locations where
the acts may have taken place.
If you have reliable statements from them and they are
probative--and that, again, is something that ought to be
judged by the panel that is reviewing the evidence--
Chairman Specter. Thank you very much, Senator Hatch.
We are going to have to move on.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. Thank you for
holding this hearing, and I want to ask a couple questions so I
will ask that my full statement be included in the record. But
first--
Chairman Specter. Without objection, your full statement
will be made a part of the record.
Senator Feingold. Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Senator Feingold. The Supreme Court's decision striking
down the President's military commissions is, in fact, yet
another major rebuke to an administration that has too often
disregarded the rule of law. The Supreme Court has once again
affirmed that detainees must be accorded basic rights and
treated humanely pursuant to U.S. law as well as universally
respected international standards. It is a testament to our
system of Government that the Supreme Court stood up against
this administration's overreaching.
We are fortunate to live in a country where the checks and
balances in Government are real. The administration's extreme
theories of executive power, its unilateral approach, and its
refusal to listen to any dissent, including from military
attorneys and experts in the executive branch, have been
entirely counterproductive and have harmed our relations around
the world, weakening us in the fight against al Qaeda and its
allies.
If this administration had not argued that detainees were
not subject to the Geneva Conventions, if this administration
had not argued that detainees had no right to counsel or to
make their case in Federal court, if this administration had
not insisted on trying those few detainees who were charged
with crimes in tribunals lacking basic due process, and if this
administration had not sought to exploit every ambiguity in the
law to justify its unprecedented actions, we would not be where
we are today.
Now, in the aftermath of the Hamdan decision, we are faced
with an important question, one that Congress and the President
should have worked together to answer 4 years ago:
How do we try a suspected terrorist captured overseas?
There is one option that would allow trials to begin
immediately, without further legislation and with the least
likelihood of further successful legal challenges: use our
long-established military system of justice. In fact, Justice
Kennedy, whom Mr. Bradbury cited, also said in his concurrence
that that might be our best option when he said, ``The
Constitution is best preserved by reliance on standards tested
over time and insulated from the pressures of the moment.''
However we move forward, the individuals held at Guantanamo
Bay should be tried in accordance with our fundamental American
values and the laws of war. Unfortunately, we have already
heard some Members of Congress argue that Congress should
simply authorize the President's existing military commission
structure. I think that would be a grave mistake. How the
Congress proceeds in the wake of the Hamdan decision will say a
lot about how it views the fundamental principles that make our
country great.
Mr. Bradbury, I would like to talk to you a little bit
about the effect of the Hamdan decision on your legal analysis
of the President's authority to direct the National Security
Agency to conduct warrantless wiretaps in violation of FISA.
The Supreme Court held in Hamdan that the Authorization for Use
of Military Force passed by Congress in September 2001 did not
authorize military commissions or change in any way the
existing statute in the Uniform Code of Military Justice. Not
only that, but Justice Kennedy's opinion made clear that the
President has to follow the statutes that Congress writes, even
when he is acting under his Article II powers as Commander-in-
Chief.
Let me read to you what a majority of Justices on the
Supreme Court said: ``There is nothing in the text or
legislative history of the AUMF even hinting that Congress
intended to expand or alter the authorization of Article 21 of
the UCMJ.''
Mr. Bradbury, doesn't the Court's rejection of the
administration's AUMF argument apply equally to the position it
has taken on the NSA program?
Mr. Bradbury. Senator, I really do not think so, and let me
explain just briefly why.
The Court in Hamdi, as you well know, held that the AUMF
does authorize the President to detain enemy combatants in the
war on terror, including those who are U.S. citizens. And, of
course, the Court there addressed another statute, which the
petitioner in that case relied on, which is 18 U.S.C. 4001(a),
which says that no U.S. citizen shall be detained, except
pursuant to an act of Congress. And the Court in Hamdi said the
AUMF, even though it does not say anything on its face about
detention or authority to detain U.S. citizens, did provide
authority pursuant to an act of Congress consistent with 4001
to detain enemy--that U.S. citizen.
Now, we have not argued with respect to the NSA program,
the terrorist surveillance program, that the Authorization for
the Use of Military Force altered or expanded or superseded the
Foreign Intelligence Surveillance Act, FISA.
Senator Feingold. I understand that part.
Mr. Bradbury. Instead, FISA, just like the statute at issue
in Hamdi, says you do not do electronic surveillance under
color of law unless authorized--except as authorized by
statute. And the Authorization for the Use of Military Force is
a statute.
Senator Feingold. I see my time is up, but let me just say,
Mr. Chairman, that I find these arguments to be astounding. I
mean, Justice Kennedy basically followed the principles of the
steel seizure case, and this sort of argument that somehow
there is this whole independent way of looking at clear
statutory language flies in the face of reality. Even Cass
Sunstein, who was one of the few lawyers who previously thought
that the AUMF argument might have some basis, now has said,
``After Hamdan, the defense of the NSA foreign surveillance
program is much more difficult.'' And I would hope that there
would be some honest acknowledgment that this does have an
enormous impact on what I already consider to be a clearly
illegal program.
Mr. Chairman, my time is up.
Chairman Specter. Thank you, Senator Feingold.
Mr. Bradbury, do you want to respond to that?
Mr. Bradbury. Yes, please, Mr. Chairman.
Senator, I would refer the Senator to a letter we just sent
this week to Senator Schumer in response to his questions on
this exact point, where we laid out our current thinking. I
will say that we are continuing to look at the opinion. We are
always looking at legal developments. As the Chairman well
knows, we are working closely with the Chairman, with Senator
DeWine, other Members of Congress, on the possibility of
legislation moving forward on the NSA program as well. But I
would be happy to speak further with you about these issues in
response to your review of the letter to Senator Schumer.
Senator Feingold. I thank you for that offer.
Mr. Chairman, I would just say to the administration that,
you know, maybe you can come up with some argument and you can
litigate this and take it all the way to the Supreme Court. My
guess is you are going to lose again, and there comes a point
where this does harm to us and our system of Government to
constantly assert the most extreme and tortured interpretation.
We should be working together, and I know in your last
statement you did suggest that that might be a possibility.
Let's see if we can get to the point where we--
Chairman Specter. Thank you, Senator Feingold. Thank you,
Mr. Bradbury.
Moving on now to Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Gentlemen, I want to see if we can achieve some common
understanding as to what the Court held and what it did not
hold. When I read the Hamdan opinion, it appears to say, the
Court appears to say that detainees must be tried before a
regularly constituted court, and they look to Common Article 3
of the Geneva Convention as establishing that requirement,
among other places.
What the Court did not say is what the procedures that
would apply, what they should be. In fact, as has been noted
previously, there was an emphasis on what is practicable in
terms of those procedures, and I want to explore that a little
bit with you.
First of all, I want to say that, you know, we have all
come to learn in the last 5 years that the pre-9/11 mind-set
where we treated terrorists as criminals only, but did not
recognize the importance of intelligence gathering to detect,
deter, and disrupt terrorist activities was an important part
of our ability to keep our country safe. Some have suggested
that the Court's reference to Common Article 3 was much broader
than just the requirement that detainees be tried before a
regularly constituted court, but to suggest that detainees
would be entitled to special privileges accorded to prisoners
of war under the Geneva Convention or perhaps the rights of an
American citizen tried in a regular criminal court in the
country.
First of all, let me ask Mr. Dell'Orto and Mr. Bradbury, do
you and I share a common understanding about the scope of the
Court's decision relating primarily to the forum and the nature
of the forum as opposed to the procedures that must be applied
to that trial?
Mr. Bradbury. Senator, if I may, actually I think it is
somewhere in between. As to Common Article 3, I think the
implications of the Court's holding do go beyond simply the
conduct of military commissions and the procedures that would
apply to military commissions. What the Court said is Common
Article 3 applies to our conflict with al Qaeda. The Court
actually said the conflict with al Qaeda is not an
international conflict, contrary to what the President had
previously determined and, therefore, that Common Article 3,
which only applies to conflicts that are not international in
character--internal civil wars, for example--it applies. Common
Article 3 carries with it a number of standards, both
procedural but also, perhaps more importantly, substantive.
Senator Cornyn. Let me ask you about, and I know the clock
keeps ticking. The Red Cross' own guidelines make clear,
though, that for an individual to earn POW status as opposed to
the rights that a detainee has to receive humane treatment, the
individual must be commanded by a person responsible for his
subordinates, must have a fixed distinctive sign recognizable
at a distance, must carry arms openly, and, four, must conduct
their operations in accordance with the laws and customs of
war.
Would you agree with me that the detainees at Guantanamo
Bay, al Qaeda specifically, are not entitled to POW status for
the reasons they do not meet those qualifications and the Court
did not hold that they are entitled to full POW status?
Mr. Bradbury. That is absolutely right.
Mr. Dell'Orto. I agree, Senator.
Mr. Bradbury. The President made a determination on that.
That was not an issue the Court addressed, and Common Article 3
does not provide the full privileges of prisoner of war status.
Senator Cornyn. And just to take the point a little
further, if they were entitled to POW status, would they have
to merely produce name, rank, and serial number in response to
our interrogations? In other words, could we use the kind of
interrogation techniques that have produced actionable
intelligence if these individuals were entitled to the full
protection of POW status?
Mr. Dell'Orto. They would only be obligated to answer
certain questions. That does not mean they could not be asked
additional questions, and repeatedly asked those questions, to
see if they would be willing to divulge the information.
Senator Cornyn. But the kind of information that we have
obtained in the course of those interrogations at Guantanamo
Bay, have they produced actionable intelligence that has saved
American lives, Mr. Dell'Orto?
Mr. Dell'Orto. We believe they have produced that sort of
information that we are using, Senator.
Senator Cornyn. And, in fact, the Pentagon sent me a letter
following one of the earlier hearings during Judge Alberto
Gonzales' confirmation as Attorney General, which lays out a
detail of some of the instances where that kind of actionable
intelligence has been obtained. And I would ask unanimous
consent, Mr. Chairman, that that be made part of the record.
Chairman Specter. Without objection, that letter will be
made a part of the record.
Senator Cornyn. Thank you.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Biden.
Senator Biden. Thank you very much, Mr. Chairman.
Gentlemen, I think there are two very legitimate and
different paths and pieces we can focus on. One is the
constitutionality under our Constitution of our behavior, our
actions dealing with detainees. The second is the efficacy of
the action we are taking in the war on terror. They may be
separable. One could argue that something could be very
efficacious and that we are doing in the war on terror that may
be unconstitutional. One could argue that they have to be the
same. But I would like to sort of separate these two arguments.
One of my problems with the administration that concerns me
the most is that with regard to the so-called war on terror--
and this is a little above maybe both our pay grades. It is not
your responsibility, I understand. But with regard to the war
on terror, the administration has focused almost exclusively on
tactic and not on strategy. And let me explain what I mean by
that.
Secretary Rumsfeld is very well known for his snowflakes,
those memoranda he sends throughout the Defense Department that
raise real questions. Not long ago he sent out one of his
snowflakes that asked the question--I am paraphrasing--Are our
actions creating more terrorists than we are deterring? And to
me, the answer is clearly no, they are not deterring more
terrorists than we are creating.
To use a phrase that was used by Tom Friedman, he refers to
Guantanamo as ``the anti-Statue of Liberty.'' You need only
look at the international polling data. You need only travel
the world, as I do as a member of the Foreign Relations
Committee. You need only visit and talk to our military people
of flag rank in Iraq, as I did this past weekend, to understand
that they think these actions are hurting us, not helping us.
So there are separable arguments here, and so from my
standpoint, I wonder whether or not, although we must focus on
the constitutionality--and that is what the Hamdan case calls
into question--I would argue that we are not paying a whole lot
of attention to the larger, broader strategic question of are
we winning this war on terror. You may get one detainee through
actions that the rest of the world views as totally
illegitimate and inconsistent with who we are, although
arguably constitutional, and as a consequence of that produce
four more suicide bombers coming out of Somalia.
Does anybody here think the actions that have taken place
in Guantanamo, does anybody here think that the actions taking
place at Abu Ghraib, does anybody think the actions that were
alleged to have taken place at the hands of renegade military,
American military, have not fundamentally put our troops in
danger? Does anybody think that?
I don't know what planet we are on here. And yet we
necessarily have to argue about the tactic. I got that. That is
legitimate. But I think we should sort of just get above this
about 1,000 feet and look down. I am telling you, guys, things
ain't good in Happy Valley. Come back to Iraq with me, my
seventh trip. Speak to our military. Listen to them. Listen to
them. Go around the world, every single capital, even those
folks who were with us.
So here is my question: The U.S. Government--the 9/11
Commission issued a report giving our country a grade of
``Unfulfilled'' when it comes to detainee policies. The
Commission stated, ``The U.S. Government's treatment of
captured terrorists, including detention and prosecution of
suspected terrorists in military prisons and secret detention
centers abroad, as well as reports of the abuse of detainees,
have elicited criticism around the globe. Dissension either at
home or abroad on how the United States treats captured
terrorists only makes it harder to build the diplomatic,
political, and military alliances necessary to fight the war on
terror effectively.''
It then goes on to suggest the following: ``The U.S. should
work with its allies to develop a mutually acceptable standard
for terrorist detention.''
Don't you all think that is a good idea, sit down with our
allies, beyond what we are doing here, and get a mutually
agreed to way in which it is appropriate to treat detainees for
our own safety's sake?
Mr. Bradbury. Senator, I would say I know for a fact that
good people at the State Department and the President are
working hard to do just that. I would say, though, that the
world we live in is a dangerous place. It is not Happy Valley.
And the President has done what he thought is best to protect
the country from another attack consistent--
Senator Biden. But he has been so wrong so many times on so
many things--
Mr. Bradbury. Consistent with the Constitution.
Senator Biden [continuing].--So consistently--so
consistently that I find it--and I realize my time is up, Mr.
Chairman. I find it difficult for us--and I believe his motive
to be pure. I find it difficult for us to buy into the notion
of let's trust the President's judgment. God love him, his
judgment has been terrible on Iraq. His judgment has been
terrible on the conduct of the war. I love him, but I am not
prepared to accept his judgment, nor Mr. Cheney's.
I thank you very much.
Chairman Specter. Thank you, Senator Biden.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
I guess lessons learned from this court case is that
collaboration is probably better than unilateral action. Do you
both agree with that?
Mr. Bradbury. It is always better for the branches to be
working together, and the war effort is one that requires the
work of certainly both political branches working together.
Senator Graham. And that is Justice Jackson's opinion. Not
only was it a wise legal decision, I think it was a good
political dynamic. So, gentlemen, I appreciate your service to
our country. I want to work with you. I am not going to look
backward. I am going to look forward, and we are going to try
to fix this problem.
My goal, simply put, is to come up with a legal
infrastructure the Nation can be proud of that will allow us to
defend ourselves in an appropriate way and that will meet the
hallmark of a fair trial. And I think we will be stronger as a
Nation if the Congress and the administration come up with a
work product that eventually is blessed by the Court because
then we can go to our friends overseas and say every branch of
the Government has bought into our new way of doing business.
And what would that new way look like? Here is what I think
it would look like: Justice Kennedy's opinion to me is the most
instructive of the fallacy in terms of Military Order 1. It
says that if you are going to create a military commission that
is different from the UCMJ, you need to show why the changes
are made. Convenience is not enough, and you have to prove
through some legislative history that a practical application
of the Uniform Code of Military Justice to a terrorist suspect
is inappropriate.
Do you agree with that?
Mr. Bradbury. No, Senator, I do not.
Senator Graham. You do not. Okay.
Mr. Bradbury. Justice Kennedy was talking in terms of the
framework of the current statutes, which he read to require the
President to use court-martial proceedings so that the
President has to start from court-martial proceedings and work
backward.
Senator Graham. Right.
Mr. Bradbury. This body does not have to do that. You
should ask yourselves what are the reasons we have the Court--
Senator Graham. Well, this Senator is going to do that.
Mr. Bradbury. That is certainly within the rights of
Congress. Obviously, my suggestion--
Senator Graham. Well, I am just one, but I think it is a
good way to start.
Now, my challenge to you is this: Explain to us why would
the Congress authorize two trial forums if one size fit all.
Why is there the mention of a military commission separate and
apart from a normal court-martial procedure?
Mr. Dell'Orto. Senator, I would say to the extent that they
have been recognized traditionally as being needed apart from
an existing court-martial system, going back to--I mean,
certainly throughout history, but going back more recently to
the post-World War II era, I would say in light of the
evolution and the development of the military justice system,
the framework of the UCMJ and the Manual of Courts-Martial,
post-World War II right to the present, argues even more today
for a separate system to deal with particularly these types of
offenders of the law of war, al Qaeda and Taliban and others.
Senator Graham. I could not agree with you more, and my
point is that the reason Congress has authorized two different
forums, one for our own troops when they violate the UCMJ, when
they engage in misconduct, and another forum called the
military commission for someone not covered by the UCMJ, not
part of our armed forces, is because military necessity and
legal necessity has understood for about 50 years that you have
two different creatures here and you may need to go down one
road versus the other. And in World War II, and before and
since, when it comes to foreign agents, enemy combatants, they
have been tried in a military commission forum. Do you agree
with that?
Mr. Bradbury. Yes.
Mr. Dell'Orto. I agree, Senator.
Senator Graham. What I think Justice Kennedy is telling us
and the way I approach this, even within Article 36 of the
UCMJ, where it authorizes military commissions, it instructs
through the statute that any deviations made from a court-
martial needs to have some explanation.
So I would suggest to the administration that the best way
to work with Congress to solve this problem is to take the UCMJ
as your basic guide and we work through the document, and where
the hearsay rules are inappropriate for a military commission,
let's change them; where Article 32 referral pre-trial
investigations are inappropriate, where we have classified
information problems, that we draft a system through
collaboration using military commission necessity, but use the
UCMJ as your basic document.
My advice to you in the next 4 seconds, if you will adopt
that attitude and that approach, we can get a product that not
only will pass Court muster but the Nation can be proud of. If
you fight that approach, it is going to be a long, hot summer.
Chairman Specter. Thank you, Senator Graham.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
You know, we have, I think, lost some focus and attention
of why we are concerned about rights and liberties and
protection and why we are talking about how we are going to
treat detainees, because what we are interested in
fundamentally is how our prisoners are going to be treated.
They have not been treated well to date, but this is basically
about how we want our prisoners treated. And that is something
that I think we have to continue to give focus and attention on
as to how we want captured Americans to be treated.
Over the last 5 years, the administration has taken us down
a different path, violating the well-established checks and
balances of the Constitution, and then in Hamdan v. Rumsfeld,
the Supreme Court said that the President had gone too far.
Justice Breyer wrote, ``Congress has not issued the Executive a
blank check.''
So the Court's decision is, I believe, the victory of the
rule of law, and following the landmark decision, we have the
opportunity to shed more light into the legal black hole at
Guantanamo Bay. But at the outset, we should make a few things
clear, and the decision is not a ``Get Out of Guantanamo Free
Card'' for any detainees. No one is suggesting that any person
engaging in terrorism should not be held accountable as a
result of the decision.
The Supreme Court made it clear the President can prosecute
terrorists. The President also has all the necessary authority
to proceed with trials of war criminals if he does it in accord
with the Uniform Code of Military Justice and the Geneva
Conventions. But instead of using that well-established
authority to prosecute the detainees quickly and fairly, the
administration created a system of ad hoc military commissions
that led to extended litigation and the Supreme Court ruling.
And as a result, more than 4 years later we have not yet
successfully prosecuted a single detainee, and Guantanamo has
become an international embarrassment.
Under the traditional laws of war, POWs may be held until
the end of the conflict. Certainly no one wants us to impose a
standard that would free dangerous detainees to return to acts
of terror. That will be one of the major challenges we face as
we move forward.
The path ahead will speak volumes about our dedication to
the rule of law and the Constitution. It will have a
significant consequence for our National security, and if our
future actions are consistent with our Nation's long-held
values, then perhaps this outrageous chapter will finally come
to an end.
As we deliberate about these matters, we should take heed
of the courageous words of Alberto Mora, the former Navy
General Counsel. He urged us to care about the fate of these
detainees because, and I quote, ``A tolerance of cruelty will
corrode our values and our rights and degrade the world in
which we live. It will corrupt our heritage, cheapen the valor
of the soldiers upon whose past and present sacrifices our
freedoms depend, and debate the legacy we will leave to our
sons and our daughters.'' I thought that was an excellent
comment.
Let me just ask, Mr. Bradbury, in your testimony today,
talking about Article 3, you mentioned on page 9 of your
testimony that ``Article 3 prohibits `outrages upon personal
dignity, in particular, humiliating and degrading treatment,' a
phrase that is susceptible of uncertain and unpredictable
application.''
Now we have Secretary England's memo that has just been put
out today, and he mentions, ``To this end, the following acts
shall remain prohibited at any time, any place whatever, with
respect to the above-mentioned persons,'' and he uses that
identical language: ``Section (c), outrages upon personal
dignity, in particular, humiliating and degrading treatment.''
Whose understanding are we supposed to use?
Mr. Bradbury. Actually, Senator, that is exactly the
question to ask: whose understanding defines what that term
means. That is--
Senator Kennedy. Let me, if I just can, because my time is
running out here. You say that this language in your
testimony--and obviously you are speaking for the
administration--is not subject to understanding. And yet we
have Secretary England using those exact words. Are we to
assume that he does not understand it either? Or is he sharing
your view? Or is this a different view?
Mr. Bradbury. I think the Department of Defense trains to
the Geneva Convention standards as they have historically
understood them. Common Article 3 is not a standard that we
have applied in particular conflicts on a regular basis.
I think that in terms of the training at the Department of
Defense--and Mr. Dell'Orto can tell you--they have an
understanding as they approach the issues as to what it means,
and they have a confidence in that understanding.
My point is that it is susceptible to interpretation. It is
clearly a vague term. It is basically the same term, the
inhuman and degrading treatment term, that caused Congress to
take a reservation to the Convention Against Torture because of
the uncertainty as to how that term might be interpreted by
foreign tribunals, for example. And it is the reservation to
the Convention Against Torture standard, which refers back to
our own constitutional precedents, that was adopted in the
McCain administration to set a baseline standard for our own
conduct in the war on terror. This now takes us back to that
capacious phrase, ``humiliating and degrading treatment.''
We believe and I believe it can be given reasonable content
and it can be given a reasonable interpretation, and there are
many international sources that suggest as much. At the same
time, however, there are other international sources construing
that same phrase in a very broad way, applying it to facts that
we might not all agree constitute the kind of misconduct that
you would like to prohibit. And to it leaves real question
marks.
And now, as a result of the Court's decision, it has
universal application to all of the folks who are handling on
our behalf detainees in the war on terror. And, moreover, as a
result of that determination, it is a war crime under the War
Crimes Act to violate that standard.
We just think as you approach these issues, it is important
for Congress to consider how to give definition and certainty
to those phrases, which are now criminally enforceable, which
now apply to all of our folks around the world in the war on
terror; whereas, previously they did not apply as a matter of
treaty interpretation by the President.
So that is why I am saying it is a significant development.
We may have confidence from a top-down command structure or
perspective that we think we are training to it. But the folks
on the front line are subject to it, and everything they do in
handling a detainee may now be affected and chilled by this new
standard. And so I would encourage the Congress to look at
these issues and to think about how best to bring certainty to
these standards so that we define them as a matter of U.S. law
but consistent with our treaty obligations.
Chairman Specter. Thank you, Senator Kennedy.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
I listened to your testimony, and I cannot believe that 24
hours ago I was in Guantanamo sitting across the table from the
chief interrogator and asked this gentleman the following
question: ``If I told you that tomorrow you had to live by the
Geneva Conventions in terms of the detention and interrogation
of detainees, what would change at Guantanamo? '' And you know
what he said? ``Nothing.''
''And if I told you tomorrow the Uniform Code of Military
Justice applied to everything you did, what would change? '' He
said, ``Nothing.''
''How about the McCain torture amendment? ''
''We are living by it.''
They seem clear in their job. And when I hear suggestions
from this panel and from our witnesses that it is impossible to
wage the war on terrorism and stand by these basic rules and
values that we have had for generations, I do not understand
it. I cannot follow your thinking on this thing.
Let me say, the thing that troubles me is this: The men and
women in uniform who are serving us in Guantanamo have been the
best--steadfast, professional, often heroic, working in a very
difficult place, bleak and barren, hotter than the hinges of
Hell. They go to work every day to watch these detainees and
try to derive information. They are not using torture. They may
have at some moment in time when this administration's policy
on torture was impossible to follow. You will recall the
torture memo, produced by your administration and then revoked.
You will recall when this administration did not listen to
Secretary of State Colin Powell and decided the Geneva
Conventions did not apply to the war on terrorism. The
confusion that came out of that could not have been easy for
our men and women in uniform trying to serve our country at
Guantanamo and around the world. But today they understand it.
I watched yesterday in a remote camera as there was an
interrogation of a man suspected to be part of al Qaeda, and I
will tell you, the pressure put on him? They handed him a
Subway sandwich. He lit up and started talking. They handed him
Chicken McNuggets, and they love it, and they start to talk.
Sure, they could be limited to name, rank, and serial number,
but they volunteer information that helps us in the war on
terror.
Here is what troubles me: We clearly have in Guantanamo a
negative symbol of the United States around the world. Ask any
of our embassies. Ask our Ambassadors what Guantanamo means,
despite the best efforts of our military there. I do not blame
them. I blame the administration for putting them in this
predicament. I think it is time for us to close Guantanamo and
transfer these prisoners to another place. For us to say it is
a clear break from the past, the Supreme Court has made it
clear the administration cannot continue to write its own laws
and avoid the law. And I happen to agree with Senator Graham.
We need a common, bipartisan starting point, and I think
courts-martial, Uniform Code of Military Justice, is that
starting point.
Can we agree on some other things? We are not going to use
evidence that is a result of coercion or torture. Would you
agree with that, Mr. Bradbury, that we should not use that in
any of our trials?
Mr. Bradbury. I certainly agree we should not use any
evidence obtained through torture. That is, in fact, a rule in
our military commissions. It is an obligation under our
Convention Against Torture. We do not use any evidence that is
determined to be obtained through torture in any of these
proceedings. As to coercion, Senator, as I indicated before,
the Detainee Treatment Act addresses that, and it provides that
the Combatant Status Review Tribunals will review the probative
value of any evidence that is suggested to have been obtained
through coercion. There are gradations of coercion much lower
than torture, and those can be challenged in Article 3 criminal
proceedings. So I think there is room for discussion on that
point. There is no room for discussion on torture.
Senator Durbin. No room for discussion on torture. You are
unequivocal.
Mr. Bradbury. That is right.
Senator Durbin. Do you believe that it should be the policy
of our administration that we do not engage in rendition, that
is, the transfer of prisoners to circumstances where they could
be subject to torture or they would be subject to torture?
Mr. Bradbury. We do not transfer individuals to countries
where we believe it is more likely than not that they will be
tortured. That is a treaty obligation we have and a policy we
apply on a worldwide basis today. Rendition itself covers a
wide range of activities, many of them quite legitimate and
traditionally used by countries all over the world to bring
people to justice.
Senator Durbin. Do you think it should be a fundamental
part of any type of commission or tribunal that a person is
aware of the charges against them?
Mr. Bradbury. Well, under the military commission
procedures that we have set up, they are aware of the charges
against them once the proceeding begins.
Senator Durbin. And should they be allowed to see the
evidence that is being used to prosecute them before any
commission or tribunal?
Mr. Bradbury. Generally speaking, that is a good approach
to take, and, of course, under the current procedures they do
get to see the evidence that is used against them with a few
narrow potential exceptions.
Senator Durbin. Do you disagree with the right to counsel
so that those charged have representation at commissions and
tribunals that we are discussing?
Mr. Bradbury. We provide right to counsel in the military
commission procedures, and we suggest that should be included
in anything that Congress is looking at.
Senator Durbin. So aside from the issue of coercion, which
may be an issue of fact, and aside from questions of hearsay,
which I can understand, what is it that you object to in basic
due process when it comes to the creation of these commissions
and tribunals?
Mr. Bradbury. Well, there has been a lot of discussion of
starting with the Uniform Code of Military Justice, and I think
as we have discussed with some of the Senators, there are a lot
of provisions and procedures set forth in that code and in the
procedures that have been issued under the UCMJ. And many of
them are simply unworkable and unnecessary in this context, and
so there are many of them, and we have discussed some of them
here today.
Senator Durbin. I am over my time, but I might just say in
defense of Senator Graham's position, the Supreme Court in
Hamdan did not say you have to accept this in totality. They
said as far as practicable. So we can make modifications to
recognize the reality of the war on terrorism.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Durbin.
Before recognizing Senator Schumer, a couple of
announcements. One is that late yesterday I was asked to come
to the White House to meet with the President at noon, so I am
going to have to excuse myself. I have asked Senator Hatch to
take the gavel and chair the hearings. I have asked Senator
Hatch to adjourn the hearing at 12:30 where we customarily on
Tuesdays have our caucus meetings until 2:15. I do not want to
cut this hearing short in any way, so we will resume at 2:15
with the second panel probably still being questioned at that
time.
I want to thank Mr. Bradbury and Mr. Dell'Orto for
appearing here today and to re-emphasize--Senator Leahy, do you
want to make a comment?
Senator Leahy. Just before you dismiss them, I have
questions.
Chairman Specter. They are not going to be dismissed.
Senator Schumer is going to question them before they leave.
We want to move, I want to repeat, with dispatch so we
would ask you to make your comments within 2 weeks on Senate
bill 3614, on what way the Uniform Code of Courts-Martial
Procedures should not apply, and to give us recommendations for
statutory provisions which you think ought to apply as a matter
of policy. But we are working in coordination with the Armed
Services Committee, and I think we all agree there is a
necessity to move ahead on trial of war crimes and also on the
detention of enemy combatants as to what the procedures should
be for review of detention status which we have embodied within
3614. And I think Congress would want to legislate on that
matter, so at least we want your views on the subject.
We do appreciate your coming in on relatively short notice,
and, Senator Leahy, do you want to make a comment?
Senator Leahy. Mr. Chairman, I just want to make sure. Are
we going to have time to ask any followup questions here on the
record of Mr. Bradbury and Mr. Dell'Orto?
Chairman Specter. Well, I think that would be advisable.
Senator Leahy. Because I had a couple of followups I wanted
to do after everybody's time.
Chairman Specter. Let me see a show of hands of people who
want to have a second round.
Well, good. Then we will just hear from Senator Leahy on
followup questions, and then we will move to Senator Schumer
now.
Senator Leahy. And what about the Haynes nomination? I have
been asked by some about that.
Chairman Specter. We have the confirmation hearing for Mr.
Haynes scheduled for 2:15 by the Judiciary Committee, and that
will proceed just as soon as we finish with this hearing.
To repeat, this is a very important hearing. We have some
very high-powered witnesses, and we want to hear them and have
a chance for questioning. So we will proceed until 12:30, and
then we will reconvene at 2:15 to hear what we need to hear.
And Senator Leahy as Ranking Member can have some followup
questions following Senator Schumer.
Senator Leahy. Thank you.
Chairman Specter. Senator Schumer, you are recognized.
Senator Schumer. Thank you, Mr. Chairman. I want to thank
you for holding this hearing in a prompt manner on such an
important issue. Before I ask my questions, I am going to make
three quick points.
First, I continue to believe the President should have
every tool necessary to fight an effective war on terror. In
times such as these, the balance between liberty and security
may have to tip a little bit in the direction of security, and
we have to be flexible. But I believe that if the process works
right, you end up almost every time having both. When Attorney
General Gonzales was here last, he agreed with me that
Americans can demand both liberty and security.
Second, the determination of the appropriate balance is not
the President's prerogative alone. The Congress has a vital
role, and, of course, as the Hamdan decision so recently and
poignantly reminded us, whether we like it or not, the courts
have a role as well. But time and time again, Mr. Chairman,
this President and this administration act as if they are the
whole Government. Time and time again, the President acts like
a bull in a china shop and sets back the war on terror.
If the administration had asked Congress at the time for
some flexibility, saying that we have a different war with this
war on terror--A, our heartland can be hit; B, there are no
uniforms or battle ranks--people would have understood that.
And the administration probably would have gotten just about
all of the changes it needed--maybe not in exactly the way it
needed, but all of the changes it needed, because we are in a
brave, new world and we are fighting a different type of
warfare. And I for one am not rigid and saying, well, what was
good in World War II has to be here now. Some people are. I am
not.
But the President should not need the Supreme Court to tell
him to consult with Congress. There is an arrogance and an
arrogation of power that I have not seen in my entire life in
public life. And that arrogance and arrogation of power
threatens to result in more catastrophic legal missteps in the
future. That is why I have asked the Attorney General to
oversee a comprehensive review by an independent commission of
legal scholars and constitutional experts so we can anticipate
any future Supreme Court problems and come to Congress ahead of
time to avoid future problems, because obviously whatever our
individual views are, what has happened with the Supreme Court
has set back our mutual goals in moving forward in terms of the
war on terror and stopping future terrorist acts from
occurring.
So given the administration's headstrong attitude, we do
not need another court blocking things that might need to be
done. The Hamdan decision, in my judgment, shows that the
administration's bull in a china shop approach is actually
impeding the war on terror.
And so that leads to my first question. I am glad that the
administration finally stands ready, as you said, Mr. Bradbury,
to work with us. You say, ``We would like to see Congress act
quickly to establish a solid statutory basis for the military
commission process.'' That kind of testimony has a bit of an
Alice in Wonderland quality to it because where have you been
for the last 4 or 5 years? But it leads to a specific question.
Okay?
Are you undertaking within the Justice Department a review
of other decisions that are also based on the AUMF, which has
been discredited by the Supreme Court, so that we will avoid a
Supreme Court decision? Are you prepared not just in the issues
before us in Hamdan but in other issues to come back to
Congress now and say, ``We need authorization from Congress'' ?
So, first question, is such a review being undertaken? Two,
would the administration consider, before another court rules,
coming back to us where you have not before on wiretapping or
other things and saying, ``We would like to work with the
Congress to get something authorized'' ? And as I said, in all
likelihood, if you did you would get most, if not all, of what
you wanted. Mr. Bradbury?
Mr. Bradbury. Thank you, Senator. We are always looking at
developments in the law to see how they affect our legal
analysis on any particular aspect of the executive branch
activities. So to that extent, yes, and the Hamdan decision is
something that we are carefully looking at and taking into
account.
It is not my decision, obviously, to say whether we are
going to come before Congress on any particular issue and make
a proposal, a legislative proposal. As I indicated, that is the
President's determination under the Constitution.
Senator Schumer. But you are undergoing a review?
Mr. Bradbury. Well, it is my job to give legal advice to
the executive branch on all manner of issues, including the
types of programs we have been talking about, including
programs like the NSA program, including issues like what does
the Hamdan decision mean, how do we move forward. Obviously, we
have a lot of folks who litigate these cases in the Department
of Justice, and they are obviously taking account of the Hamdan
decision as we move forward with the other major cases in the
habeas litigation on detainees that are pending and the
litigation, as you know, that we are facing on the NSA program.
So we are looking at all of those issues and always taking into
account those developments and reconsidering whether--
Senator Schumer. May I just ask, who is doing this review
since the Court decision?
Mr. Bradbury. Well, I am not suggesting that there is any
particular formal process of review. I am saying that it is my
job always to look at developments in the law and determine how
they may affect advice that we have given on the basis, the
lawful basis for programs, and it is always the job of the
folks in the Civil Division at the Justice Department who are
handling matters in litigation to look at how cases like Hamdan
may affect arguments that are being made in litigation. So that
is a process that goes on constantly in the Department.
Senator Schumer. And it has been renewed since Hamdan, I
take it.
Mr. Bradbury. Absolutely.
Senator Schumer. Thank you, Mr. Chairman.
Senator Hatch [presiding]. Thank you, Senator.
Senator Leahy.
Senator Leahy. Thank you.
I am a little bit confused in listening to you, especially
in your answer to Senator Schumer. Mr. Dell'Orto's earlier
statement and answer seemed to suggest that we should simply
ratify the administration's or the President's or the Bush-
Cheney administration's commissions. And, Mr. Bradbury, you
seem to say in a reversal from the earlier position of the
administration 5 years ago, that you are now ready to work with
Congress on legislation to allow you to operate within Hamdan.
Which is it? Are we going to be asked simply to ratify what the
President is already doing which the Court found illegal? Or
are we supposed to go somewhere new?
Mr. Dell'Orto. I do not think those answers are
inconsistent, Senator. I think we would ask that you take a
look at the commission procedures as they are laid out, and to
the extent that you believe that they do demonstrate what the
President has set out as the standard, that is, a full and fair
trial, that you authorize those procedures.
Senator Leahy. Mr. Bradbury, is that consistent with what
you are saying?
Mr. Bradbury. Oh, yes, absolutely. Even--
Senator Leahy. Because the reason I say this is, when we
tried to do that before, we were rebuffed by the
administration. It is interesting now, after the Supreme Court
has told them to stop illegal activity, that they are willing
to talk to us. And I am just trying to figure out which
statements to follow.
For example, before the Supreme Court's Hamdan decision,
the President said he was waiting on the Court's decision to
determine whether to close Guantanamo Bay. And then after the
Court issued its ruling, the President said the Court had
accepted and upheld his decision to open Guantanamo. But the
Supreme Court was not asked to address the Guantanamo question,
the legal question.
Was this based on the Department of Justice telling the
President that the--did the Department of Justice tell the
President that the Hamdan decision was really on Guantanamo
prior to it being released, or afterward they released it--even
though neither would be true?
Mr. Bradbury. Well, Senator, I think as I said in my
testimony, obviously the Court's decision does not call into
question our ability to hold detainees--
Senator Leahy. That is not my question. The President has
said very specifically, and he said it to our European allies,
that he was waiting for the Supreme Court decision and that
would tell him whether he was supposed to close Guantanamo or
not; afterward, he said the Court upheld his position on
Guantanamo. In effect, it actually said neither. Where did he
get that impression? The President is not a lawyer. You are.
The Justice Department advised him. Did you give him such a
cockamamie idea, or what?
Mr. Bradbury. Well, I try not to give anybody cockamamie
ideas, and--
Senator Leahy. Well, where did he get the idea?
Mr. Bradbury. Obviously, the Hamdan decision, Senator, does
implicitly recognize that we are in a war, that the President's
war powers were triggered by the attacks on the country, and
that the law-of-war paradigm applies. The whole case was
about--
Senator Leahy. I do not think the President was talking
about the nuances of the law-of-war paradigm. He was saying
that this was going to tell him whether he could keep
Guantanamo open or not; afterward, he said it said he could.
Was the President right or was he wrong?
Mr. Bradbury. It is under the law of war--
Senator Leahy. Was the President right or was he wrong?
Mr. Bradbury.--that we--the President is always right,
Senator.
Senator Leahy. Well, you may have even heard both
Republicans and Democrats say that there have been a few
mistakes made here. One of the things that we tend to forget is
that 9/11 did happen on this administration's watch, and a lot
of the mistakes that were made before are still being made.
Mr. Bradbury. Well, Senator--
Senator Leahy. And, Mr. Dell'Orto, you had mentioned the--
in fact, this follows the difficulty of getting witnesses, you
know, following up on what then-White House Counsel Gonzales
talked about, military commissions being able to dispense
justice close to where the actions are happening. And I think
you both talked about the fact that if people were down at
Guantanamo, what are you going to do, bring folks back from the
front to testify?
I understand that problem. I understand that problem. Then
why not have the commissions and why not have the people held
near the battlefield. We have held over 350 courts-martial on
the battlefields of Iraq and Afghanistan. That is close to
where everything was going on. It enabled witnesses to be
called. It seemed to work very well. Why transfer everybody
halfway around the world to Guantanamo where nobody is
available? Did we just set that up as a way to allow us to
completely ignore going to any trial?
Mr. Dell'Orto. Senator, I would say that, regardless of
where you hold the military commissions, you are going to be
faced with that problem. You have instances where people
committed crimes outside Afghanistan or other places that we
have captured. The witness to those may not be in Afghanistan.
We have soldiers who rotate back from the battlefields on a
regular basis.
Senator Leahy. They were able to do 350 courts-martial over
there.
Mr. Dell'Orto. Yes, Senator, and I would say that if you
look at those 350 courts-martial, you will find they are more
the traditional military offenses that involved undiscipline,
disobedience of orders, disrespect--the more normal
undiscipline cases that a military court-martial was very much
designed to deal with anywhere around the world.
Senator Leahy. So bringing these people to Guantanamo was
not to keep them from having witnesses available?
Mr. Dell'Orto. No, sir. It was to provide principally a
secure place to hold these folks.
Senator Leahy. And the people that we have sent off to
other countries, turned them over to other countries, as we now
know in many instances to be tortured, what was the reason for
doing that?
Mr. Dell'Orto. Well, as Mr. Bradbury said, we do not send
people off to other countries where we believe they--
Senator Leahy. But they have been. They have been.
Mr. Dell'Orto. Senator, I am not aware of that personally.
Senator Leahy. It is in some of the information that has
come out. It is almost as though we take the attitude like in
``Casablanca.'' I am ``shocked, shocked'' to see this is going
on here.
All right. My time is up. I will have questions to follow-
up further in writing, Mr. Chairman.
Senator Schumer. Mr. Chairman?
Senator Hatch. Senator Schumer.
Senator Schumer. I would like to ask for a second round. I
did not ask for one before because I had not asked my first
round and did not know if my questions--
Senator Hatch. Well, before you do, I notice that you
wanted to answer some of these questions and were not given the
opportunity. So if you would care to make statements, either
one of you, before I turn to Senator Schumer--and I hope
Senator Schumer will be the last one, unless somebody on this
side feels they absolutely have to. Mr. Bradbury, we will turn
to you. Any final comments you would care to make? Mr.
Dell'Orto, we will turn to you after Mr. Bradbury.
Mr. Dell'Orto. Yes, Mr. Chairman. I actually have one
correction I would like to add to an answer that I gave Senator
Feinstein, if I could.
Senator Hatch. That would be fine.
Mr. Bradbury. I would just like to make two quick points,
one for Senator Leahy.
One of the main functions we hope to carry out in
Guantanamo is military commission trials of those detainees who
have committed war crimes, and I think what the President is
talking about is looking for clarity from the Supreme Court as
to whether he can move forward with those military commission
procedures at Guantanamo or whether he cannot. And the Court
has now said you cannot under the current rules, but there is a
way ahead with working with Congress. And if we can get
legislation in place quickly, we can move forward, and the
process can work as it has been set up.
The one other point I would like to quickly make is in
response to a question that Senator Durbin raised. In February
of 2002, the President directed the military to apply the
principles of Geneva to the extent consistent with military
necessity. So that is why in Guantanamo they train to Geneva,
they question in accordance with Geneva. So it is not
surprising that Senator Durbin would talk to the folks down in
Guantanamo and say, well, this decision does not require any
change in the procedures at Guantanamo. They are acting
consistent with the policy that the President has set as a
general matter for the military at Guantanamo.
I am sorry. I just wanted to add those two points.
Senator Hatch. You going to add to that?
Mr. Bradbury. That is all I wanted to say, Mr. Chairman.
Senator Hatch. Okay. Mr. Dell'Orto?
Mr. Dell'Orto. Senator Feinstein, when you asked earlier
about the people who have gone through CSRTs and ARBs, one fact
I--
Senator Sessions. Mr. Chairman, would you explain those
letters?
Mr. Dell'Orto. I am sorry. The Combatant Status Review
Tribunals, which is the initial board that the detainees go
through to establish that they continue to be enemy combatants,
and the Administrative Review Boards, which is an annual
follow-on board to assess threat levels and make
recommendations as to whether they should be continued to be
held.
With respect to the Combatant Status Review Tribunals, the
CSRTs, we have probably a handful, I would say--and I am
guessing, probably about five or so--people who have been found
no longer to be enemy combatants that we still have at
Guantanamo, they have been through the CSRT process; they are
ready to be transferred to some location that can accept them,
that certainly is not going to torture them, but in point of
fact, some countries are not willing to take any of these
people back because they pose problems for that country as
well.
Senator Feinstein. Mr. Chairman, could I ask one follow-up
just on that one point?
Senator Hatch. Sure.
Senator Feinstein. On the point of countries that will not
take individuals back, what then is the alternative?
Mr. Dell'Orto. We try to find another country that is
willing to take them, and we work through the auspices of the
State Department to try to develop that and find a suitable--
Senator Feinstein. And does that work?
Mr. Dell'Orto. On occasion it does, but it tends to be a
very slow process.
Mr. Bradbury. But, Senator, if we cannot find a third
country to take them back and they are dangerous terrorists
whom we have captured, we are going to continue to hold them.
Mr. Dell'Orto. Clearly, and, again, the people who came
through the CSRTs and were determined no longer to be enemy
combatants are not high-threat people. They are not enemy
combatants, and they can be returned.
Senator Feinstein. Thank you. I appreciate that.
Mr. Dell'Orto. But, clearly, anybody we see who poses a
significant threat through either the CSRT or certainly the ARB
process, we are going to keep.
Senator Feinstein. Thank you. Thank you very much.
Senator Hatch. Well, I just want to add that I was one of
the first to go to Guantanamo, and I went completely through
the process and saw that is a reasonable, decent, honorable
process, in spite of what some have said about it. And,
frankly, everybody I know who has been there has come to that
same conclusion, as I think the Senator from Illinois has.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman.
Mr. Bradbury, I just want to ask you, did the Hamdan
decision come as a complete surprise to the administration? In
other words, did you, before the Court ruled, anticipate that
the military commissions might be ruled illegal by the Supreme
Court?
Mr. Bradbury. Well, I think there are a lot of people who
have had a lot of different views on what might happen with the
case. I think going into it, the beginning of this process some
years ago, there was, frankly, a high level of confidence
because of the historical practice and recognition of military
commission authorities that it would all be upheld as crafted.
I mean, it was not crafted to push the envelope. The procedures
were crafted consistent with historical practice, so there was
every reason to think they would be upheld. But you will need
to--I am sure the folks who were closer to the actual handling
of the case and the argument of the case than I am had their
view as to how things were going.
I have to say I am, as I indicate in my testimony, quite
surprised and disappointed with the reasoning in the opinion.
But, obviously, it is what it is, and we are going to work with
it and move forward.
Senator Schumer. Okay. Well, I understand that. So if you
were surprised and most of the people in the administration
were surprised, you obviously guessed quite wrong, and you
pursued a policy that now has been thrown out.
Let me then repeat my question. Why doesn't the
administration undertake--I mean, I am glad to hear you say you
are reviewing the other situations now in light of Hamdan, as
you should. But why doesn't the administration take a more
formal process and review it to avoid this happening again.
This makes me think, you know, everyone makes mistakes, but
when you have made a lollapalooza like this one and then you
say business as usual, I get worried. And, again, I do not come
at this from a perspective that we have to, you know, undo
everything that you think needs to be done. But I am just
amazed at sort of the--so why isn't there a formal review? Why
isn't it a dereliction--why wouldn't it be the responsibility
of the President, the Attorney General, the Secretary of
Defense, to say, all right, we were wrong this first time in
the way we could set things up, we better check everything out
in a serious way, not just the Office of Legal Counsel
reviewing it himself? Can you please answer that for me? I am
totally befuddled here.
Mr. Bradbury. Well, Senator, all of the officials you
mentioned at all times are always considering whether
activities undertaken, programs, are consistent with the law,
consistent with the current decisions of the Court. That is
something that is always going on, and, of course, as a policy
matter, in light of circumstances and changes in conditions,
things are always being considered and reconsidered.
Senator Schumer. But, sir, you made a pretty bad wrong
guess.
Mr. Bradbury. I would say, Senator, we are not saying this
is business as usual. We are not saying nothing has changed.
The Court has made a very dramatic decision, and it is a
historic fact that we are here talking to Congress about
legislation to authorize and set up procedures for military
commissions--something that has never happened in the history
of the country. They have always been set up and handled
administratively by the President and the executive branch
throughout the history of the country.
This is a historic change. It is not business a usual, and
it is a result of what is a very historic and dramatic decision
from the Court last week.
Senator Schumer. But, again, why wouldn't--give me one good
reason why there should not be a serious formal review to look
at other issues that might have been based--other policies that
you are pursuing that might have been based on AUMF? You know,
I was always befuddled by that. I voted for that resolution,
and it was never discussed once. I don't recall any discussion
on the floor of the Senate, privately among colleagues, with
administration people, that the AUMF was supposed to influence
any of these things which we thought was a totally different
issue. Why wouldn't you undergo a formal review now? Why
doesn't that make sense from your own point of view, from the
efficacy of getting things done and getting it right, given
that the Court says you have not?
Mr. Bradbury. Well, I am saying it is part of my job to do
a constant serious look at legal issues and how they may be
affected by significant decisions by the Court like this one.
So it is part of my job description, and that is what--
Senator Schumer. Did you warn anybody that you might have
decided wrong before?
Mr. Bradbury. Well, I guess I can plead ignorance there
because I was not here at the beginning of this whole process.
But as I tried to explain earlier, I think that the decisions
that were made?
Senator Schumer. Did anyone? Did your predecessor?
Mr. Bradbury. The decisions that were made in 2001 and 2002
on military commissions and the procedures of military
commissions were fully in line--in fact, went further than
historical precedents. And, of course, since that time, we went
through the process of the Detainee Treatment Act, which
creates judicial review procedures, again, unprecedented in the
history of the country, for military commission procedures.
This is an evolution. And, of course, the judicial review
procedures were a result of the Court's decision in Rasul v.
Bush, which said that the habeas statute applies to aliens held
even in Guantanamo for purposes of review of the basis for
their detention.
So that, again, was an unprecedented development in the
law, and as a result of that, we worked with Congress, and we
had the Detainee Treatment Act. And now we are here again for
the next step in light of the Hamdan decision.
So it is a constant evolution and reconsideration in light
of developments in the law.
Senator Schumer. Are you going to come to Congress only
when the Supreme Court tells you to in the future?
Mr. Bradbury. Well, Senator, obviously it is not my
decision to come to Congress. That is not part of what I do. I
just give legal advice to the President, the Attorney General,
and the executive branch.
Senator Schumer. Thanks, Mr. Chairman.
Mr. Dell'Orto. Senator, for this record, I would say in the
Department of Defense our office is constantly reviewing the
advice we have given in light of decisions from the courts,
from laws that are passed, and it is not a static process. We
are always reviewing the legal advice we have given the
Secretary, and he challenges us to do that.
Senator Graham. Mr. Chairman, may I have just a minute or
two?
Senator Hatch. Yes, Senator Graham.
Senator Graham. You are about to leave with some guidance
from our Chairman to kind of work on producing a product that
would help the Congress work with the administration to start
over again. And I will be the first to admit this is incredibly
difficult. This is new and uncharted territory. The legal
infrastructure for the war on terror is different than a normal
war because the enemy is different. I am a big fan of the
Geneva Convention. There are four treaties that make up the
Geneva Convention. Common Article 3 is common to all four. It
is a basic, mini-human rights procedure in all four documents
dealing with civilians on land and sea, military personnel,
non-military personnel, enemy combatants. And the reason that
we have signed up to the Geneva Convention is that when our
people are captured, we do not want them not only tortured, we
do not want them humiliated; we do not want our troops paraded
through downtown capitals and humiliated based on their
religion or their status. We want to make sure that if our
prisoners are tried in a court, it is a regularly constituted
court as required by the Geneva Convention, that it is not a
kangaroo court made up for the moment.
So Common Article 3 makes sense in terms of the Geneva
Convention. The question is: Does it make sense to apply Common
Article 3 to a group of people who do not sign up to the
Convention, who show disdain for it, who would do everything in
their power to not only trample the values of the Geneva
Convention but every other treaty that we have ever entered
into?
I agree with the President they should be treated humanely,
and I believe it is incumbent upon the Congress to rein in the
application of Common Article 3, Geneva Convention, to the war
on terrorism within our values.
Now, having made that speech, I believe it is incumbent
upon the administration to understand the basic perspective of
Justice Kennedy, and he says, ``At a minimum, a military
commission like the one at issue, a commission specifically
convened by the President to try specific persons without
express Congressional authority can be regularly constituted by
the standards of our military justice system only if some
practical need explains deviations from court-martial
practices.''
So my challenge to the administration is to look at this
situation anew. I think you would be well served to forget
about Military Commission Order 1. You would be well served to
go back to the UCMJ and provide, where practical, changes to
the UCMJ to try people in military commission format, because,
gentlemen, the military commission source of law comes from a
statute. It comes from a congressional enactment. The military
commission's roots come from the Uniform Code of Military
Justice.
So, if nothing else, I hope you can leave this hearing and
at least know where I am coming from, that Military Commission
Order 1 as the base document for us to work off of would be a
mistake. The base document for us to work off of is the statute
from which the military commission originates, the Uniform Code
of Military Justice. And if there is a need to deviate, which
there will be plenty of needs to deviate, we need to explain to
the court through testimony and our Congressional Record why
that is practical.
Thank you for listening.
Senator Hatch. Well, thank you both for coming. Did you
want to--
Mr. Dell'Orto. Mr. Chairman, may I respond?
Senator Hatch. Sure.
Mr. Dell'Orto. Senator, I have many concerns about taking
that approach, but one of them is that, when all is said and
done, we do not so change that system of justice, as laid out
in the UCMJ and the Manual for Courts-Martial, that it
ultimately redounds to the disadvantage of our servicemembers
going forward, because we are going to be creating a body of
case law out of that that will itself be the source of much
litigation.
So I have concerns about that route, given that particular
fact down the road.
Senator Graham. If you think that is my proposal, then you
misunderstand what I am saying, and I will blame myself for not
being articulate enough. But here we have--we are right back to
where we started. The military commissions come from a
statutory scheme. It is not something that you just pulled out
of the air. A military commission is created by a statute, and
you did not consult with us when you created the military
commissions. The Military Rules of Evidence derive from the
Federal Rules of Evidence. They are different in some respects,
but the President has shown a practical need to make them
different. The Manual for Courts-Martial is an executive
enactment to enforce the UCMJ, the rules of the road of how you
try somebody.
I do not mind coming up with a manual for military
commissions, but the basic problem I have with this whole
philosophy is that you are ignoring the source of a military
commission. Its being comes from a Congressional statute, and
we are not going to respond--at least I am not going to respond
to some product that was enacted without any consultation. To
me that cannot be the base document. We will go backward, not
forward. The base document has to be the Uniform Code of
Military Justice.
Senator Hatch. Okay, Senator, let me just say that I recall
Lincoln set up military commissions by Executive order, and
others have done so as well. But, Mr. Bradbury, you wanted to
comment?
Mr. Bradbury. Actually, Senator, I was just going to make
that very point. General Washington set up military commissions
in the Revolutionary War, and all prior Presidents have set
them up primarily under Article II authority, with recognition
in the Uniform Code of Military Justice and other statutes--
Senator Graham. Why are military commissions mentioned in
the UCMJ?
Mr. Bradbury. Because they were recognized by Congress and
provided for, and the Court has now said that you need to
follow the restrictions that Congress has set for them. And so
we are asking--
Senator Graham. What authority did you use to create
Military Order 1? Was it the UCMJ reference to military
commissions?
Mr. Bradbury. It was reference, I believe, to Article II of
the Constitution, to the UCMJ, including Article 21, which
preserves the jurisdiction of military commissions, and the
Authorization for the Use of Military Force.
Senator Hatch. I think you are saying you are not going to
ignore the UCMJ, but the Executive does have certain powers
that have been executed by every President since Washington.
Senator Graham. Mr. Chairman, the only the government I can
say it--
Senator Hatch. Now, wait a minute. I am just asking a
question. I think I am allowed to do that.
Senator Graham. Yes, sir, I apologize.
Mr. Bradbury. That is absolutely right, and, of course,
Congress has express authority to define and punish offenses
against the laws of nations, which is what military commissions
do. So we are not at all saying Congress does not have
authority here, and, in fact, the Court has said Congress has
put restrictions on the use of military commissions--
Senator Hatch. And now with this Court decision, it is
incumbent upon Congress to exercise its authority and come up
with a way that does not make it impossible for us to protect
our country and also our military.
Mr. Bradbury. Exactly.
Senator Hatch. Just to mention two aspects. Well, we want
to thank both of you for being here today. You have been
excellent. You have given excellent testimony, and I think all
of us here appreciate it very much. So with that, we will allow
you to leave.
Mr. Bradbury. Thank you.
Mr. Dell'Orto. Thank you, Mr. Chairman.
Senator Hatch. Now, we have a vote at 12:15, but I think we
are going to start with our second panel. At least we will get
to introduce you all and maybe take a few testimonies. Let's,
if we could, get our second panel at the table.
[Pause.]
Senator Hatch. All right. If we can have order, let's have
order. We are going to begin with Theodore Olson, who is a
partner in Gibson, Dunn & Crutcher from 2004 to the present. He
has a B.A. from the University of the Pacific cum laude; a
J.D., University of California at Berkeley. He is former
Solicitor General of the United States of America from 2001 to
2004. From 1981 to 1984 he was Assistant Attorney General, the
Office of Legal Counsel. Aside from his time with the Reagan
and Bush administrations, he has worked as a partner and has
continued as partner at Gibson, Dunn & Crutcher, one of the
great law firms in this country. He is a member of the
President's Privacy and Civil Liberties Oversight Board, a two-
time recipient of the Department of Justice's Edmund J.
Randolph Award.
Harold Kohn, we welcome you as well, currently Dean of the
Yale Law School from 2004 to the present. He has often been a
witness before the Committee; Smith Professor of International
Law from 1993 to the present. His education was at Harvard for
a B.A. summa cum laude. Oxford University, he was a Marshall
Scholar, a B.A., first class honors; Harvard Law, J.D., cum
laude; and Oxford University master's degree in 1996. He has
had a lot of notable experience: a law clerk for Judge Malcolm
Richard Wilkey at the U.S. Court of Appeals for the D.C.
Circuit from 1980 to 1981, law clerk for Justice Harry
Blackmun, the U.S. Supreme Court, from 1981 to 1982, et cetera.
We welcome you to the hearing.
Paul W. ``Whit'' Cobb is Vice President and Deputy General
Counsel, BAE Systems, Inc., North America, from 2005 to the
present. He has a B.A. from Duke University summa cum laude and
a J.D. from Yale University School of Law in 1990. From 2001 to
2004, he was Deputy General Counsel, the Office of Legal
Counsel, the Department of Defense. From 1996 to 2001, he was a
partner in Jenner & Block LLP. He has been a judicial fellow in
the Administrative Office of the U.S. Courts. From 1991 to
1995, Office of General Counsel at the Department of the Army
where he achieved the rank of captain. In 1990 and 1991, he was
a law clerk of Judge Thomas A. Clark, the U.S. Court of Appeals
for the Eleventh Circuit.
Scott Silliman is a professor, Duke University School of
Law, from 1993 to the present. He has a B.A. from the
University of North Carolina at Chapel Hill; a J.D. from the
University of North Carolina-Chapel Hill. From 1968 to 1993, he
was United States Air Force Judge Advocate of the General
Corps, and during his career as a JAG attorney, Professor
Silliman served as Staff Judge Advocate at two large
installations and three major Air Force commands, including the
Tactical Air Command and the Air Combat Command, where he
served as General Counsel to the Commander of 185,000 military
and civilian personnel.
Lieutenant Commander Charles Swift, we are very happy to
have you here; defense counsel in the Office of Chief Defense
Counsel at DOD, Office of Military Commissions, from 2003 to
the present; B.S. from the U.S. Naval Academy, Division Officer
School as well in San Diego in 1985; J.D. at the Seattle School
of Law in 1994; and was educated at the Naval Justice School
Basic Lawyer Course in 1994. He has a long history of service
in the Navy, and we are just very grateful to have you here as
well, Commander.
Daniel Collins is a partner in Munger, Tolles & Olson, LLP,
from 2003 to the present; was educated with an A.B. from
Harvard College summa cum laude; First Marshall Phi Beta Kappa
in 1985, a J.D. from Stanford University with distinction in
1988. Mr. Collins was Associate Deputy Attorney General, the
Office of Deputy Attorney General, from 2001 to 2003. During
that time, Mr. Collins also served as DOJ's Chief Privacy
Officer; from 1997 to 1998, adjunct professor of Loyola Law
School, and from 1996 to 2001, again, with Munger, Tolles. He
was Assistant Attorney General in the Criminal Division of the
U.S. Attorney's Office in Los Angeles, law clerk to Justice
Scalia, and attorney-advisor of the Department of Justice
Office of Legal Counsel, et cetera. He was a note editor of the
Stanford Law Review and recipient of Stanford Law Review's
Board of Editors Award and Order of the Coif.
So we are happy to have all of you here. You all have
tremendous distinctive records, and we are very proud to have
you before the Committee, and if we can, we will go in that
order. Mr. Olson, we will take you first.
STATEMENT OF HON. THEODORE B. OLSON, FORMER SOLICITOR GENERAL
OF THE UNITED STATES, AND PARTNER, GIBSON, DUNN & CRUTCHER,
WASHINGTON D.C.
Mr. Olson. Thank you, Mr. Chairman and members of the
Committee, for the opportunity to appear before this
distinguished Committee to testify about the Supreme Court's
decision in Hamdan v. Rumsfeld, which has far-reaching
implications for the President's ability to defend our national
security and perform his duties as Commander-in-Chief.
No issue deserves more thoughtful consideration from our
elected representatives than ensuring that the American people
are defended from a savage terrorist enemy that deliberately
targets civilians and mutilates our soldiers in an effort to
destroy our way of life.
I will confine myself to the 5 minutes. We have submitted
written testimony, Mr. Chairman, which I assume will be a part
of the record.
Senator Hatch. Without objection, we will put the complete
statements of all of you in the record. And, by the way, I want
my statement placed in the record at the appropriate place as
well, without objection.
Mr. Olson. It is altogether appropriate and necessary for
Congress to consider a legislative response to the Supreme
Court's decision in Hamdan. All eight Justices who participated
in the case--Chief Justice Roberts was recused, but he had
agreed with the administration's position as a judge on the
United States Court of Appeals. But all eight Justices
recognized that Congressional action could cure any perceived
inadequacies in the military commissions established by the
President.
In response to the Justices' invitation to implement a
legislative solution, it is my opinion, first, that Congress
should restore the status quo that existed prior to the Supreme
Court's decision in Rasul v. Bush and make clear that the
Federal courts do not possess jurisdiction over pending or
future habeas petitions filed by Guantanamo Bay detainees or
other noncitizen enemy combatants detained outside the
territory of the United States.
In that Rasul case, the Supreme Court overturned a
precedent, Johnson v. Eisentrager, that had stood for 50 years
and held in that case for the first time that the Federal
habeas statute grants jurisdiction to Federal courts to
entertain habeas corpus petitions filed by aliens, noncitizens,
who have never had any contact with the United States, captured
abroad and detained beyond the sovereign territory of the
United States. In the Hamdan decision, the Court held that
legislation enacted in response to Rasul depriving, again, the
Federal courts of jurisdiction in such cases did not apply to
habeas corpus petitions pending when the legislation was
enacted.
Since the emergence of the writ of habeas corpus several
centuries ago in English common-law courts, the writ has never
been available to enemy aliens captured on the battlefield
outside of a country's sovereign territory. Indeed, by
requiring the President to justify his military decisions in
Federal courts, Rasul imposed a substantial and unprecedented
burden on the President's ability to react with vigor and
dispatch to homeland security threats.
Indeed, none of the 2 million prisoners of war held by the
United States at the conclusion of World War II was deemed
authorized to file a habeas petition in a U.S. court
challenging the terms of conditions of his confinement. One can
only imagine the chaos that would have been introduced into the
effort to win World War II if each of these detainees, or
lawyers on their behalf, had been permitted to file petitions
in U.S. courts immediately upon their capture in Europe,
Africa, or the islands of the Pacific Ocean.
The Rasul decision and the Hamdan decision impose a
tremendous burden on our military personnel in the field. As
the Supreme Court explained in Eisentrager, it would be
difficult to devise more effective fettering of a field
commander than to allow the very enemies he has ordered reduced
to submission to call him to account in his own civil courts
and divert his efforts and attention from the military
offensive abroad to the legal defense at home. That is the
words of Justice Jackson, who has been frequently quoted in
these proceedings and in related proceedings in a 6-3 decision
upholding what had always been the law of the land. Congress
should act to restore the pre-Rasul status quo. The
Constitution places the decision to detain a noncitizen held
abroad squarely within the domain of the President as
Commander-in-Chief of the Armed Forces. Congress should restore
the constitutional balance by amending the Detainees Treatment
Act to clarify that Federal courts lack jurisdiction over
habeas petitions filed by detainees held outside the sovereign
territory of the United States.
Mr. Chairman, my testimony refers to the military
commissions and makes recommendations with respect to that, and
it also addresses the point with respect to the Geneva
Convention. But I will not take your time now by referring to
that because it is in the written testimony.
[The prepared statement of Mr. Olson appears as a
submission for the record.]
Senator Hatch. Well, thank you very much, Mr. Olson.
Professor Koh, we will take you now.
STATEMENT OF HAROLD HONGJU KOH, DEAN, YALE LAW SCHOOL, NEW
HAVEN, CONNECTICUT
Mr. Koh. Thank you, Mr. Chairman. I have twice served in
the Government--in the State Department in the 1990s and in the
Reagan administration in the 1980s at the Justice Department. I
submitted a detailed statement that makes two points:
First, the Hamdan decision is much bigger than military
commissions. It has broad significance for the separation of
powers and the way we conduct the war on terror.
And, second, it suggests principles for how Congress and
the President should work together to restore a constitutional
process for ensuring a fair trial and humane treatment.
Mr. Olson stated the holdings of Hamdan, but as Justice
Frankfurter once said, there are some cases that are less
important for what they hold than for what they say about a way
of looking at the law. And as my written remarks point out,
Hamdan is the most important case on Executive power decided
since the steel seizure case, not just for what it says about
military commissions, but for what it says about what the
Constitution requires about the President, Congress, and the
courts working together to deal with national crisis. And what
it says is that when the President is responding to a war on
terror, he should not go it alone, citing a broad
constitutional theory and statutes which do not give specific
authorization; rather, he should fit his actions within the
scope of enacted laws, such as the UCMJ, and treaties that have
been ratified by the United States, like Common Article 3.
With regard to Common Article 3, there are two important
things that it is not. Common Article 3 is not about giving
terrorists POW status. It is about giving them a right to
minimal humane treatment that we give everybody.
The second thing, Common Article 3 is not about them and
what they do. It is about what we are and what we do. We give
basic humane treatment. Some have said, well, terrorists have
not signed Common Article 3. Well, whales have not signed the
Whaling Convention. But it is about how we treat them and how
we are obliged to treat them.
When you look at the way that Hamdan requires the executive
branch to behave within the framework of law, you end up
rejecting, as based on the wrong constitutional vision, three
recent executive branch positions: the President's supposed
freedom to authorize torture and cruel treatment in the face of
the McCain amendment would be rejected; the President's
supposed freedom to authorize warrantless domestic surveillance
in the face of the FISA would be rejected; and the President's
supposed freedom to try military terrorist suspects before
commissions that do not meet the UCMJ standards should also be
rejected.
That brings me to my final point. This Congress and this
Committee have two options. The first is it can hastily enact
quick-fix legislation to reverse the holdings in Hamdan. Mr.
Olson now suggests that they also reverse Rasul. Ted Olson is a
great lawyer. I had the privilege of working with him in the
Justice Department 20 years ago. He lost Rasul. His successor
lost Hamdan. And now they would like to reargue those cases
here and get them both reversed.
But I think that there is a better approach than
relitigating cases that have already been lost, and that is for
Congress to hear what the Court said in Hamdan about what a
constitutional process is, to accept the notion that any
detainee in our custody deserves a fair trial and humane
treatment. That is what the Pentagon now seems to have
accepted, according to the story in the Financial Times. And,
third, we should hold hearings about what it takes to make
hearings of these detainees truly full and fair, as the
President said he would do in creating military commissions.
If Congress follows option one and simply tries to undo the
Supreme Court conclusion, it will place us on the wrong side of
our own law, statutory and treaty; on the wrong side of
international law, on the wrong side of international opinion;
and we run the risk that the statute you pass will be struck
down again by the courts.
But if you accept the Hamdan Court's holdings and work with
them, you will place us back on the right side of the law on
the right side of international opinion, and I believe on the
right side of history.
I have suggested in my statement, starting on page 12, the
criteria that military commissions have to satisfy after Hamdan
with regard to humane treatment, eligible defendants in crimes,
meaningful oversight, and procedures comparable to courts-
martial. I agree with Senator Graham that if you are to do
this, you should start from the UCMJ process.
But let me close by saying that Hamdan has presented both
Congress and the President with an opportunity to make a fresh
start in crafting a fair and durable solution to the problem of
humane treatment and fair trial. This body should take this
opportunity to craft laws that satisfy the UCMJ and Article 3,
and the President should take care that those laws be
faithfully executed.
Thank you.
[The prepared statement of Mr. Koh appears as a submission
for the record.]
Senator Hatch. Thank you, Professor Koh.
Let's go to Mr. Cobb next, and we will finish with
Commander Swift. Or you wanted me to go to Commander Swift
first because Senator--why don't we go to Commander Swift
first, and we will finish with you, Mr. Cobb. That is contrary
to what the Chairman wanted me to do, but I will do it.
STATEMENT OF LIEUTENANT COMMANDER CHARLES D. SWIFT, OFFICE OF
MILITARY COMMISSIONS, OFFICE OF CHIEF DEFENSE COUNSEL, U.S.
DEPARTMENT OF DEFENSE, WASHINGTON, D.C.
Commander Swift. Mr. Chairman, members of the Committee,
thank you for again inviting--
Senator Hatch. If you would pull your microphone a little
closer to you, I think that would help.
Commander Swift. Mr. Chairman, members of the Committee,
thank you for again inviting me to testify here today. As you
begin the vitally important process of determining the
necessity of a legislative response to the Supreme Court's
opinion in Hamdan v. Rumsfeld.
The first question to be asked is whether the system, as it
has been set up, should be reinstated. Based on the past 5
years, the answer is simply no. This is not just the view of a
defense counsel who litigated the commission system. It is also
the view of some of the commission prosecutors. One of the
prosecutors, Air Force Captain John Carr, wrote that in his
experience, the commission was, and I quote, ``a half-hearted
and disorganized effort by a skeleton group of relatively
inexperienced attorneys to prosecute fairly low-level accused
in a process that appears to be rigged.'' Another prosecutor,
Air Force Major Robert Preston, lamented that ``writing a
motion saying that the process will be full and fair when you
do not really believe it is kind of hard--particularly when you
want to call yourself an officer and a lawyer.''
Those of us who have litigated in the commission cases in
Guantanamo recognized that the military commission system's was
flawed in both design and execution. The military commission
systems' procedures were simply inadequate to ensure that the
trials produced accurate results. Security is always a
consideration in trials implicating the defense of our Nation.
That consideration is recognized by MRE 505(b) inside the
Uniform Code of Military Justice and the Court-Martial that
allows security considerations. The commission security rules,
however, are written in such a way as to invite abuse, a fact
that became only too clear to members of the prosecution as
well as the defense. Captain Carr observed to the chief
prosecutor, ``In our meeting with [a government agency], they
told us that the exculpatory information, if it existed, would
be in the 10 percent that we will not get with our agreed upon
searches. I again brought up the problem that this presents to
us in the car on the way back from the meeting, and you told me
that the rules were written in such a way as to not require
that we conduct such thorough searches, and that we were not
going to worry about it.'' Captain Carr's e-mail is reflected
in the experience of the defense.
The ability of the Government agencies to hide evidence
from the prosecution is chilling considering that the
prohibition against statements obtained by torture rest solely
on whether such statements were obtained through torture in the
judgment of the prosecutors. Absent prosecutor judgment, there
are no provisions guaranteeing the defense any sort of
discovery concerning the use of coercion to obtain testimony.
Publicly, the chief prosecutor argued in the military law
journal that such problems would be cured by the defense's
ability to argue the shortcomings of any evidence. Privately,
Captain Carr reports that the chief prosecutor told him, ``The
military panel will be hand picked and will not acquit these
detainees.'' Again, the practice of the commissions echo
Captain Carr.
To cite just one example, prior to his selection by the
Secretary of Defense to serve on the commission's appellate
review panel, a very distinguished member, William T. Coleman,
met with and assisted the prosecution in their preparation and
strategy for trial. Now, using such a member would normally be
perfectly Okay to get the prosecution ready. But he was then
appointed to serve on the same review panel. In any other legal
system, such conduct would have clearly precluded Mr. Coleman
from serving in any judicial capacity, but not at the
commissions.
The defense, apart from calling the accused, has no
meaningful ability to put on a defense. The dissent in Hamdan
was incorrect when claiming that the petitioner may subpoena
his own witnesses, if reasonably available. In fact, the
defense had no ability to issue subpoenas and, with only one
exception in more than 50 attempts, no success in obtaining
witnesses through the prosecution or the presiding officer.
Given the handcuffs this puts on his counsel, the accused
is really the only one that can dispute the evidence against
him. Without knowing what that evidence is, the accused is left
undefended. Yet the accused is not guaranteed even the most
fundamental right, and that is, to know what the evidence is
against him.
It should not be surprising that in previous commissions
the exclusion of a nondisruptive defendant from factual
precedents of his own trial is unprecedented. The disregard for
the principles of justice in the commissions has increasingly
put members of the Chief Defense Counsel's Office in the
position where they would either violate ethical requirements
incumbent on their practice of law or face criminal charges for
the violation of military orders. To do one's job in an ethical
manner should not require a military attorney to risk criminal
sanctions.
Senator Hatch. Lieutenant Commander, I am going to have to
hold you to the 5 minutes so I can make the vote.
[The prepared statement of Commander Swift appears as a
submission for the record.]
Senator Hatch. We will turn to Mr. Cobb now. I am going to
hold each of you to right on 5 minutes. Otherwise, I cannot
make the vote.
Mr. Cobb.
STATEMENT OF PAUL W. ``WHIT'' COBB, JR., FORMER DEPUTY GENERAL
COUNSEL, U.S. DEPOSITION, WASHINGTON, D.C.
Mr. Cobb. Thank you, Mr. Chairman and members of the
Committee, for the opportunity to appear here today.
As you mentioned, Senator Hatch, I have served as an Army
and also as a former Deputy General Counsel for Legal Counsel
of the Department of Defense. Of course, today I am appearing
solely in my personal capacity.
While I was at the Office of the Secretary of Defense, I
had the opportunity to participate in drafting the military
commission procedures that were at issue in the Hamdan case,
and I also had the opportunity to work through many of the
issues the Committee is now confronting. I hope my perspective
will be helpful.
I would like to address the five key features of war crimes
courts that I believe are essential to justice in the broadest
sense of the word, and my statement has more details about
this, my written statement.
The first key feature, it is critical to have a specialized
law of war court designed for the circumstances of each
underlying conflict. War crimes court procedures need to differ
in a few significant ways from the procedures that have grown
up around our domestic criminal courts, including courts-
martial. Courts-martial may have some surface appeal, but there
are significant problems with using courts-martial to try war
crimes. First, they have been designed to protect military
personnel in their trials for ordinary criminal offenses and
require drastic modifications. And, second, as discussed by Mr.
Dell'Orto, it is even more difficult to use courts-martial to
prosecute war crimes violations in Federal court.
The second key feature of any war crimes court is that it
needs to be a function of the military. The military has the
subject matter expertise under the law of war. It has custody
of the detainees. And it has always conducted our war crimes
trials in the past.
The third key feature, we need to have inclusive rules of
evidence that permit the fact finder to weigh the probative
value of each piece of evidence. The evidence is simply not
going to have the indicia of reliability in all cases that we
would expect in our domestic criminal court proceedings.
The fourth feature is the need for heightened protection of
classified information over and above the protections in
Federal courts and courts-martials. This is required by the
fact that our war with al Qaeda is continuing and also the
importance of information in that war given the fact that our
enemy in the war has no fixed faces or other resources that we
would ordinarily attack. I would note that most other war
crimes tribunals have taken place after the war had ended.
Of course, defendant's cleared counsel should be given
access to all information relevant to the trial, but there are
going to be rare but important instances when the defendant
cannot be given personal access.
The fifth and final key aspect to a war crimes court is the
need for cleared and mandatory defense counsel. The accused
should not have the right to self-representation. These war
crimes courts will be conducted in a complicated military
justice procedural environment. Also, the right to self-
representation would defeat protections for classified
information.
Now, how should legislation implement these five key
features? Fortunately, we are not writing on a blank slate.
There is an existing forum that has each of the five qualities
that I have discussed, namely, military commissions. Some
modifications to military commissions that Congress might
consider include increasing the structural independence of the
military commissions, for instance, by specifying the
appointment of military judges to preside over the trials, and
also by articulating further the appellate process. Congress
might also desire to specify statutory provisions that would
address the court's concerns in Hamdan with respect to Articles
21 and 36 of the UCMJ.
The Unprivileged Combatant Act, introduced by Chairman
Specter recently, contains almost all of the five key war
crimes court features I have discussed and is an excellent
first step toward a legislative response to Hamdan.
In conclusion, the existing military commission system,
with appropriate modifications by Congress, is ideally suited
to trying law of war violations. The perfect is the enemy of
the good, and perfectly uniform criminal procedures are the
enemy of war crimes prosecutions. Surely, it is better to have
some war crimes prosecutions under procedures tailored for the
circumstances than perfectly uniform procedures and no
prosecutions whatsoever.
Mr. Chairman, I would be pleased to answer the Committee's
questions.
[The prepared statement of Mr. Cobb appears as a submission
for the record.]
Senator Hatch. Well, thank you so much, Mr. Cobb. Professor
Silliman, we will take your testimony.
STATEMENT OF SCOTT L. SILLIMAN, RETIRED AIR FORCE JUDGE
ADVOCATE, CENTER ON LAW, ETHICS, AND NATIONAL SECURITY, DUKE
UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH CAROLINA
Mr. Silliman. Thank you, Mr. Chairman. With all due respect
to Dean Koh, I read the decision in Hamdan a bit narrower than
he does, as is explained more in detail in my prepared
statement. Therefore, I urge the Committee, to the extent it
deems legislation necessary, that it carefully tailor it to
meet the specific issue raised by the Supreme Court.
For example, the Court did not deal with the broader
question of the President's authority to detain. It said,
``Hamdan did not challenge nor need the Court to address that
question.''
Also, because the Detainee Treatment Act already prescribes
the procedure for status review determinations on detainees,
that is an issue which, at least for now, need not be
addressed. Therefore, I believe the Congress should address
only those lists of deficiencies in military commissions that
it pointed out.
If the Congress merely passes a law giving legislative
sanction to the prior system from military commissions, putting
everything back the way it was, there is no assurance that it
would pass judicial muster. Further, it would obviously invite
further challenges and lead to greater uncertainty.
Many legal scholars believe that it is possible for this
Congress to actually legislate around Common Article 3.
However, giving Congressional sanction to the minimal level of
due process in commissions, which was criticized as inadequate
by the Supreme Court and which fails to satisfy a commonly
recognized international legal standards, is, I believe, Mr.
Chairman, imprudent.
Congress could also authorize a completely new system for
military commissions which remedies most of the defects with
the Court cited, but which does perhaps allow for a more
flexible standard for the admissibility of evidence. The
Congress could legislate an exception for hearsay evidence or
unsworn statements. However, in no circumstance should evidence
procured by coercive interrogation techniques be admissible.
I would also suggest that there should be a more robust and
substantial judicial review, such as in the United States Court
of Appeals for the Armed Forces, and that that is absolutely
essential.
So Congress could build a new military justice system based
on most of the procedures of the court-martial process but,
again, making exceptions where the Congress needs it. That
would be a far better step, Mr. Chairman, but not the one I
advocate.
What I urge the Committee to consider requires no new major
legislation. The Supreme Court in Hamdan clearly implied that
courts-martial under the Uniform Code of Military Justice, the
type of trial system we do use for our own servicemen, is more
than adequate and appropriate to the task.
To those who suggest that using courts-martial would
disadvantage us by taking those relatively small number of
military commissions--and, again, Mr. Chairman, remember, the
standard for detaining an individual is merely an
administrative determination of combatant status. To bring a
case before a military commission, there must be a specific
framing of a criminal charge under the law of war. That is the
only jurisdiction of a war court, a military commission in this
case. But by adopting the same system of courts that we use for
our own servicemen and making the minor adjustments we need,
which has already been brought before this commission, Article
32 need not necessarily obtain. Article 31(b), the Advice of
Rights, need not necessarily obtain. The authority already
exists in Article 18 to use courts-martial for violations of
the law of war.
If we do that, Mr. Chairman, I think that we send a loud
and clear signal to the rest of the world, particularly at this
time of increasing allegations of atrocities by our own armed
service personnel. We send a signal that we are a Nation under
the rule of law, not just in rhetoric, Mr. Chairman, but in
practice.
Let me close by suggesting, as you already have here before
you, as the Senate Armed Services Committee will have on
Thursday, that you continue to solicit and seek the advice of
those who know this system and these issues best. And I refer
to the active-duty judge advocates and retired judge advocates.
I believe their advice and counsel, as you deliberate this very
difficult issue, would be of great benefit.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Silliman appears as a
submission for the record.]
Senator Hatch. Well, thank you so much, Professor.
Mr. Collins, we are delighted to have you back. We look
forward to hearing you.
STATEMENT OF DANIEL P. COLLINS, FORMER ASSOCIATE DEPUTY
ATTORNEY GENERAL, AND PARTNER, MUNGER, TOLLES & OLSON, LOS
ANGELES, CALIFORNIA
Mr. Collins. Mr. Chairman, I am grateful for the
opportunity to testify here today. The extent to which the use
of military commissions remains available as a tool for
prosecuting terrorists and other unlawful combatants in the
ongoing war on terror is an important issue that warrants this
Committee's prompt attention. I believe that the Supreme
Court's recent decision in Hamdan v. Rumsfeld casts sufficient
doubt over the manner in which such commissions may proceed in
the absence of statutory authorization or clarification as to
make it appropriate for Congress to supply that authorization
and clarification. It would, I think, be ill advised to try to
proceed without the benefit of Congress' assistance in
implementing the Court's decision.
Before turning to the specific recommendations that I would
make, I did want to emphasize two points about the Court's
decision that I think are very important.
First, despite some of the misunderstanding that I think
has been reflected in the press and some of the commentary, the
Court did not in any respect base its holding on the
Constitution of the United States. It, rather, solely found
that the procedures set up for the military commissions were
not consistent with the provisions of the Uniform Code of
Military Justice that the Court deemed to be applicable; and,
second, it concluded that the structure and procedures more
generally deviated from the requirements of Common Article 3,
which it also believed to be applicable to the conflict with al
Qaeda.
The Court also, importantly, did not question that the
military model and a military tribunal is appropriate in this
context. I think that is also important to underscore. In
discussing the subject of how to confront and disable al Qaeda,
too many people, I think, seem to view the war on terror as a
war merely in the rhetorical sense, like the war on drugs or
the war on poverty. It is not. It is an armed conflict with an
organized enemy that calls forth the military authorities of
the Government, including the right to detain and the right to
try before a military tribunal. No Justice of the Court
questioned that. It is merely a matter of how to exercise the
authority to try within the context of a military tribunal.
There are four things that I think the Congress should do
in response to Hamdan.
First, I believe that the Congress should eliminate the
standard of uniformity except as impracticable standard, which
we are now left with. That standard is fraught with so much
uncertainty that to attempt to implement it would just have
everyone back here 5 years from now after another Supreme Court
decision saying it was not quite right. If Congress provides
the authorization, substitutes that standard with something
else, that will provide the best and surest footing for
proceeding with appropriate military tribunals.
I think that what Congress should put in its place has two
elements: one, it should have some substantial residuum of
discretion for the Executive to fill out the details; and then,
second, as is clear from the comments of many of the Senators
today, there is clearly a desire on the part of Congress to
articulate some minimum criteria that will be applied. How you
draw those lines I think is a difficult question that will
require careful study.
Second, I think that Congress should also eliminate the
uncertainty occasioned by the Court's holding with respect to
the Geneva Conventions, and I don't think that Congress needs
to repudiate the application of Common Article 3 in order to do
that. I, rather, read the Court's opinion, and as clarified by
Justice Kennedy's concurrence, as indicating that if Congress
provides the statutory authorization for this regime and sets
it up in a regular fashion, then it will be a regularly
constituted court within the meaning of Common Article 3 and
will eliminate that problem. And so the Court, by providing a
clear statutory authorization and basis for these tribunals,
can cure that problem.
I also think, third, that the Congress should provide
specific statutory authorization for a war crime of conspiracy,
something that is clearly within Congress' constitutional
authority.
And then, fourth, I believe that Congress should also
revise the judicial review provision so as to effectuate the
original intent of the Detainee Treatment Act to ensure that
challenges to military commission judgments follow the judgment
and not precede it. In some respects, the level of deference to
military tribunals under this decision is less than you would
give in a habeas court to a State court judgment, and that
seems inappropriate.
[The prepared statement of Mr. Collins appears as a
submission for the record.]
Senator Hatch. Well, thank you so much. We really
appreciate all of you. I am sorry we have to hold you over
until 2:15, because I think there will be a lot of questions of
this distinguished panel.
So, with that, we will recess until 2:15, when we will
resume this hearing. We appreciate all of your and your
patience.
[Whereupon, at 12:33 p.m., the Committee recessed, to
reconvene at 2:15 p.m., this same day.]
AFTERNOON SESSION [2:15 p.m.]
Chairman Specter. We will resume our hearing about what
should be done to comply with the decision of the Supreme Court
of the United States in Hamdan v. Rumsfeld. I regret that I had
to miss the opening statements, but Senator Leahy and I are
ready to proceed with some questions.
Mr. Olson, let me begin with you and acknowledge personally
again my sympathy for the loss of your wife on 9/11 on the
plane that crashed into the Pentagon.
Mr. Olson. Thank you, Mr. Chairman.
Chairman Specter. You have a unique perspective from many
points of view, having been Solicitor General and very much
involved in the work of Government and experienced in
constitutional law. How many cases have you argued now before
the U.S. Supreme Court?
Mr. Olson. We have to stretch our memory to remember those
numbers, Senator, but I think it is 43.
Chairman Specter. Well, that is quite a record.
What do you think needs to be done to have a basic
compliance with what the Supreme Court said in Hamdan v.
Rumsfeld?
Mr. Olson. Well, at a very minimum, what the administration
seems to be urging is that Congress approve the procedures that
the President articulated in the order setting up the military
commissions that he did, in 2001 I guess it was. That would be
the minimum requirement.
Chairman Specter. Do you think that would pass muster with
what the Court had in mind on compliance with Article 3 of the
Geneva Convention?
Mr. Olson. I think it would. I do think that, to the extent
that there are other provisions that are added with respect to
specific aspects of the process, that the most flexibility
possible given to the President is something that should be
done because, as I say in my written testimony, the terrorists
that we are opposing are extremely resourceful. They adapt
their techniques to our defenses. Every time we set up some
sort of a system, they work their way around it. They train
their colleagues how to lie, to cheat, and to commit mayhem in
ways that are very, very destructive to us. And they take
advantage. They attempt in every way possible to take advantage
to any legal system that can be created.
Therefore, I think it is important for the President to
have the flexibility more than just to deviate where it is
impracticable, which is one of the terms that is in the statute
now, but to have some reasonable flexibility to adapt to the
circumstances.
The provision to terrorists of highly classified, sensitive
information makes no sense to me, and I think that--
Chairman Specter. Dean Koh, the applicability of Article 3
of the Geneva Convention was received with surprise in many
quarters. There had been some contention over whether you
needed a nation state, you needed uniforms, you need some
regularization to apply the Geneva Conventions. How would you--
and I know you favor the application of Article 3 of the Geneva
Convention and think the Court acted in accordance with the
intention of the provision. But how would you square--I am on
Dean Koh now.
How would you, Dean Koh, analyze the applicability of
Article 3 of the Geneva Convention in that context?
Mr. Koh. Well, Senator, in my oral remarks, I made two
points about what Common Article 3 is not. It is not a
provision that gives people prisoner-of-war status, and it is
not about what they do. It is about what we do. It is a
statement--and this is a quote from Will Taft, who is legal
adviser, that there are certain minimum standards apply even to
the detention of unprivileged belligerents. It says that they
are not outside the law. It is a general principle of civilized
society that inhumane treatment degrades the perpetrator as
much as the victim.
So what was really said in 1949 when they were crafting the
Geneva Conventions was there must be a core of minimum
treatment that we are ready to give to every country in the
world, and every country in the world respects it except for
the Island of Nauru. So I think that the real question is does
Congress want to be in a position now of passing a law which is
essentially saying that the United States wants not to be a
part of this baseline minimum standard. And I think that would
be very, very damaging for our own troops, for our country to
say that of all the countries in the world who accept this
baseline minimum standard, we do not.
Chairman Specter. Mr. Olson, how would you respond to Dean
Koh? How would you satisfy the requirements of Article 3 of the
Geneva Convention using the President's program if Congress
were to legislate on the matter?
Mr. Olson. Well, my position would be that it would be
important for Congress to make clear that it agrees with the
executive branch's interpretation of the Geneva Conventions,
including Common Article 3, that it does not apply under these
circumstances to terrorists who are not acting in connection
with any State, not complying with any other provision of the--
not working with a contracting party, and that provision
applied, as most people understood it, I believe, to conflict
that was not international in nature, which international
terrorism certainly is, confined within a contracting party,
which is not what we are dealing with here.
I think that if Congress made it clear that that
interpretation of the Geneva Conventions and our participation
in them, I think that that would carry important weight.
Chairman Specter. Well, my red light went on, so I will
yield to Senator Leahy.
Senator Leahy. Lieutenant Commander Swift, in Mr. Cobb's
prepared testimony today, he argued, among other things, that
special procedures are needed for a military commission in
wartime to prevent sensitive information from being passed to
detainees under attorney-client privilege or being passed from
them. Do you have any comment about that?
Commander Swift. Well, sir, I certainly agree that in Mr.
Hamdan's case, where I am representing him, there is a need to
protect sensitive materials, but also in Mr. Hamdan's case,
when that is given a blanket application, it can lead to
basically the violation of fundamental rights in a trial. The
example I can give is that I was down at Guantanamo Bay to tell
Mr. Hamdan about his decision. For 2 days, first we told him;
then I explained to him, along with Professor Katyal, our
strategy going forward, all the possible things we might do or
not do.
At the end of that meeting, he was taken back to his
regular cell, and then his belongings were searched, and the
only thing they took were his notes on the questions that he
was to answer as the client on how we were to proceed. In other
words, the Government seized the entire strategy we had going
forward. And it was the only document they took. And I did not
see how that could possibly implication national strategy,
although it does certainly implicate how we will conduct the
trial.
Senator Leahy. Also, Mr. Bradbury and Mr. Dell'Orto on the
first panel talked about deficiencies they see in the UCMJ
procedures and claim those are preventing them from moving
forward today, without further delay, with courts-martial
against those the President has designated for trial in
Guantanamo Bay. Part of this came after questions of mine
pointing out the fact they have been down there for all these
years and the Administration has not convicted anybody yet. I
am not sure how that makes us better. What procedures are in
place to ensure that those who have violated the law of war can
be brought to justice under the UCMJ--and this sort of follows
on my other question--while keeping classified information
secret? And what is the military's record of applying the UCMJ
to suspected war criminals?
Commander Swift. Is this question to me, sir?
Senator Leahy. Yes.
Commander Swift. Yes, sir. Speaking in Mr. Hamdan's case,
if he were taken to a court-martial, I am well aware that
505(b) would permit the same sort of substitutions that you see
in Federal courts, where they could substitute in classified
information, substitute proxies, all of the things necessary to
protect classified information. Also, under Article 31 Bravo, I
am well aware of the decision in United States v. Lonetree that
says intelligence, information that was gathered under
intelligence purposes is not subject to Article 31(b). So I
would expect a court-martial to fully address the concerns that
have been brought up here today, and we would then be
litigating on an even and fair playing field where the truth is
going to come out.
Senator Leahy. In fact, Commander, haven't we had trials in
this country for years where there has been classified
information involved and it has been handled--the courts have
worked it out in such a way to protect both the Government and
the defense?
Commander Swift. Actually, I have participated in a few of
those trials, sir. Our system is very well set up for the
protection of classified information. The Uniform Code of
Military Justice, unlike a Federal court, is permitted to be
closed in a court-martial. And all of the members on the court-
martial have security clearances. So you have a lot of
flexibility, while still maintaining the accuseds' right to
confront the evidence against them. It is a very good system.
Senator Leahy. Dean Koh, Mr. Bradbury testified for the
administration, the Justice Department witness this morning, he
said the administration would abide by the Supreme Court's
ruling that Common Article 3 applies to Guantanamo detainees--
not a real big concesssion so far as the Supreme Court did rule
that way and he is bound to follow it. But then in something
very similar to some of the signing statements, some of the 700
signing statements we have seen, he suggested Common Article 3
was ambiguous and hard to interpret.
Do you find Common Article 3 that ambiguous or hard to
interpret?
Mr. Koh. No, I do not. I should point out that the White
House spokesman, Tony Snow, was asked a similar question and
gave a similar answer. So this sounds like it is the official
administration position. They do not know what ``humiliating
and degrading treatment'' means. I think anyone who saw Abu
Ghraib knows that is humiliating and degrading treatment.
I think it does mean that you might want to have a list of
things, of tactics which are clearly in violation, which
include, for example, waterboarding, leading people around with
dog collars, threatening them falsely with execution. Those are
clearly violations of Common Article 3.
But you have to remember, Senator, that every country in
the world applies Common Article 3, so there is a lot of
understanding of what practice is violated or not, and I don't
think other countries have found it difficult to apply.
Senator Leahy. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Leahy.
Senator Cornyn--oh, pardon me. Senator Graham was here
first.
Senator Graham. Thank you, Mr. Chairman. I want to again
thank you for having these hearings. The more we talk about
this, I think, the more we can understand our differences and
work to get a good solution.
I guess my basic concern is shared by Mr. Olson. I have got
a lot of concern, Dean, with all due respect, about how Common
Article 3 can restrict our Nation's ability to defend ourselves
when it comes to the treatment. When it comes to a regularly
constituted court, I think we could fix that pretty quickly. I
think we could come up with a military commission model that we
all could be proud of. And the debate I got into with our
representatives from the administration before is maybe form
over substance.
Mr. Olson, my concern is basically that military
commissions are spoken of in the UCMJ, so this is not an area
where the Congress is silent. The Congress has said within the
UCMJ specific things about military commissions.
What restrictions do you think Congress has put, if any, on
forming a military commission?
Mr. Olson. I listened to that colloquy this morning, and it
struck me that maybe the point where there was ships passing--
Senator Graham. Passing of the ships?
[Laughter.]
Mr. Olson. It is that there have been military commissions
from the beginning of our country, and it is not just our
country; that they have been accepted in many instances by the
U.S. Supreme Court. The Uniform Code of Military Justice
acknowledges the existence of military commissions, and by
specifying procedures for courts-martials, it does not, in my
opinion, indicate that military commissions have to be
conducted that way, that my understanding--and you may
understand it better than I do because of your particular
background--is that the Uniform Code of Military Justice is
perfectly consistent with the existence and formation and
operation of military commissions that operate under different
procedures.
Senator Graham. If I could interrupt, I think that is a
very good summary of sort of where--military commissions are
mentioned in the UCMJ for a purpose. It created another legal
venue, believing that in some circumstances the UCMJ may not be
the proper venue.
So we talk about a new creature called military
commissions, and the reason we got to the law of Common Article
3 is the Court read the UCMJ, where it spoke of military
commissions, and it says the body of law would be the law of
armed conflict. Certainly within the body of law of armed
conflict is the Geneva Convention. It kind of went around in a
circle to get to Common Article 3, and I think we could, if we
chose, amend that statute and change it and define what the law
of armed conflict was for military commission purposes and
exclude the Geneva Convention if we chose to do that. I think
we have that power.
The question is: Should we as a Nation--and, Scott--I am
just going to call you ``Scott,'' because you used to be my
boss in the Air Force. I never got to do that when we were on
active duty. I can do it now.
[Laughter.]
Senator Graham. Give me your opinion about how we create--
what source document should we use after Hamdan to create a
military commission? Should it be the UCMJ modified, or should
we just give blessing to Military Order 1?
Mr. Silliman. Certainly not the latter, Senator. One thing
that I think we all need to understand with regard to the
history of military commissions, the last commissions in this
country were the Kierin case after World War II, and I think
most people do not know that the Attorney General actually sent
a second case involving German saboteurs into Federal court.
But the UCMJ was enacted by Congress in 1950 to be effective in
1951, Senator, because of the concerns.
You remember the scathing dissent of Justices Rutledge and
Murphy in the Yamashita case with regard to the very loose
procedures that were used in that. It was a legitimate
commission, but it came under caustic rebuke.
Now, I think what Congress was saying in enacting the
UCMJ--and, as you point out, Senator, incorporating in both
Articles 18 and 21 specific references to military
commissions--is that it wanted to incorporate, and it said so
in 36(b), court-martial proceedings as much as practicable.
Senator Graham. Uniform as practicable.
Mr. Silliman. Yes. So I would say, Senator, that we start
with a high bar. We start with the UCMJ which, for 56 years,
has been recognized and which the Supreme Court in effect said
was fully compliant with Common Article 3--not that that is the
test, but it complies. So I do believe that within minimal
amendments to the Code, probably through Article 18 and
specifically limited to war crimes, again, there has been no
court-martial--I stand to be corrected here, but I don't think
a general court-martial has actually ever been implemented to
prosecute a violation of law of war.
So as you said, Senator, we are starting and building a new
system for the future. If we are going to do it, I think the
baseline ought to be the UCMJ, certainly rather than just
trying to reverse the Court's decision in Hamdan by ratifying,
as it were, the President's military order.
Chairman Specter. Thank you, Senator Graham.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
I appreciate each of you being here today and offering your
expertise to us. Mr. Olson, let me ask, in your testimony you
note the danger of requiring the Government to disclose
sensitive intelligence information to al Qaeda operatives that
it seeks to prosecute under this ruling. I am concerned because
al Qaeda consumes any information that it can get its hands on
to help it in its cause.
For example, al Qaeda has reviewed the military's field
manual to help its associates resist interrogation. Former New
York terrorism prosecutor Andy McCarthy has written how he
complied with the court requirement to turn over information to
suspected terrorists, and that list was later used as evidence
in another terrorism trial when it was learned that the list
had been passed by al Qaeda associates through its network and
was discovered in the Sudan.
Can you explain how we can proceed in a way that does not
turn over our secrets to the terrorists in a way that will
empower them and potentially endanger the American people?
Mr. Olson. Senator Cornyn, I think that that subject was
addressed very well in Mr. Cobb's testimony with respect--am I
correct?--to the lawyers, having cleared lawyers have the
opportunity--to the extent that we have to go that far, to have
cleared lawyers, lawyers that have been through the process to
have access to the information, and that it need not then go to
the terrorist under the circumstances where a determination has
been made that it is extremely sensitive, source method type
information that could be very, very damaging to the United
States.
I think that could be done. I have stressed in my testimony
that it would be very important to allow this uniformity as far
as practicable as an illustration of that. Historically, the
courts have given great deference to the judgments of the
President who has the constitutional responsibility as
Commander-in-Chief to defend this country against acts of war
and acts of terrorism. The judgment, I hope, that if this
Congress codifies in some way the military commission process
and sets forth a specified set of rules, that there will be
flexibility built into it so that the President in the exigent
circumstances, when it is necessary, when it is practical, when
it is appropriate, can deviate from those circumstances, and
that it is understood in the legislation, not just in the
legislative history, that deference will be given to the
President's judgment with respect to that. He is the
constitutional authority that must make snap, immediate
decisions, and as I indicated in my testimony, to have those
decisions second-guessed years later in the context of a
terrorist bringing a commander to account or for a President's
decisions to be micromanaged by a judiciary years later with
respect to the correctness of those decisions makes no sense to
me.
Senator Cornyn. Do you have reservations about if we were
to adopt the framework of the UCMJ that it would create those
problems you have just described?
Mr. Olson. Absolutely, and I think the testimony this
morning was very, very clear about that, by people that know a
great deal more about it than I do. But the idea of Miranda
warnings, Brady rules, and search warrants before someone
knocks open a door, the idea that we have opened the door to
judicial review of the status of a combatant from the moment he
is taken into custody, which is the consequence of the Rasul
and Hamdan decision, has grave consequences with respect to the
decisions that our people have to make when their lives are
imperiled on the ground in the midst of a war when people are
blowing themselves up to kill them.
Senator Cornyn. Professor Silliman, I gather you think we
can start with the framework of the UCMJ and carve out
exceptions where the application of that to servicemembers is
not practicable when applied to terrorists. Could you describe
that?
Mr. Silliman. Senator, I think we first need to understand
that the scenario that was described would also say that when
our own servicemen commit acts of rape and pillage, that there
is a total vacuum of a law enforcement function, that is just
not true, Senator. All we are talking about is taking an
existing system where the members of our armed forces know well
the restraints. And I am not talking about a Miranda type
Article at 31(b). That is not my concern. But to suggest that
the military somehow should have no matrix, no legal matrix
outside the UCMJ at all to operate to fight terrorism, to me
starts a very slippery slope. And I very much worried, sir,
that we would then become much as those we call our enemy, and
I think that is not the signal we need to send.
That is why I do stress that I think the bar that we set,
that this Congress sets, and in conjunction with the
administration, ought to be high and make exceptions where
needed in the wisdom of this body. But don't start with a low
bar. That is the wrong message to send, and it is not
necessary.
Senator Cornyn. My time is up, but I would appreciate it if
you would provide me and the Committee a list of those
exceptions where you believe they would be warranted.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Cornyn.
Senator Sessions.
Senator Sessions. Thank you.
We do need to figure out how to get a proper response to
the Supreme Court's opinion and create a system which complies
with that opinion. I am not one that thinks it is sent from
heaven, but it is the law. So we will see if we can work for
it, work with it.
I guess, Mr. Cobb, you were counsel at the Defense
Department. Senator Graham and I were just talking about the
UCMJ. That is prepared by the Department of Defense and either
acted on or rejected by the Congress?
Mr. Cobb. The Manual for Court-Martial.
Senator Sessions. The Manual for Court-Martial?
Mr. Cobb. I believe that is correct, sir.
Senator Sessions. As you look at--well, let me ask, Mr.
Olson, you were Solicitor General. You have represented the
United States before the Supreme Court innumerable times and
you speak for the entire Government before that Court. Why
wouldn't we want the Department of Defense or the executive
branch to prepare a new commission procedure and submit it to
Congress and let us evaluate it for appropriateness? Would that
be a good step?
Mr. Olson. Well, that may be a very good idea. I cannot, as
I sit here, think of any reasons why it would not be a good
idea, because then to the extent that the Congress is not
simply codifying what is already in existence, in a sense that
the President set forth rules and procedures for the creation
and implementation of military commissions, but to require--or
to give the Defense Department and the administration time to
go back and do it again and then submit it to Congress for
approval by Congress is probably a good idea. I just have to
stress, though, that to the extent that it is too specific and
too rigid and involves too much micromanagement by the courts--
because I think that is something that needs to be done, too,
that something has to be done about the habeas corpus statute,
or you are going to have courts supervising the implementation
of those procedures from the moment someone is taken into
custody. And so I think that has to be a part of the package.
Senator Sessions. Well, I could not agree more. I am
thinking about our difficulties with immigration. We in the
Senate and this Committee have attempted to write laws to
enforce the border when it seems to me that if the
administration is serious about border enforcement, they have
the people working at it every day. They have got prosecutors.
They have got investigators. They have got agents. They ought
to be telling us what they need and proposing to us legislation
that would fix the border.
It strikes me, Mr. Cobb, that the military has got the
responsibility to defend America, to detain dangerous criminals
and not to release them, and to see that those who are unlawful
combatants are appropriately tried. Shouldn't they have the
responsibility--or wouldn't it be the appropriate way for us to
operate for the Department of Defense to suggest how they would
like to go?
Mr. Cobb. Senator, I believe that is an excellent
suggestion. The Department of Defense has spent nearly 4 years
working on these very issues with respect to the creation of
the military commissions, and they have even encountered some
of the practical difficulties that you have in the stillborn
trials that have been held so far. And so I think that asking
the Department of Defense to come back with a new
recommendation would be a very useful idea.
Senator Sessions. And I am thinking about the
practicalities of it all. We get overconfident about how easy
it is to prosecute cases. We assume that you have got a pretty
good case and something is just going to all fall together and
it is going to be successful and somebody will be convicted if
they are guilty. But I have seen guilty people get acquitted. I
have seen trials fall apart. I have seen judges say, ``That is
hearsay,'' or ``The chain of custody is not sufficient,'' or
``That item of evidence was seized unlawfully,'' exclude the
evidence and the case fell apart right there. It is one thing
if that is a marijuana dealer. It is another thing if it is a
person who makes bombs, has a plan to kill Americans, has sworn
to destroy the United States and actually been part of a
movement that has declared war on the United States.
So I am troubled by it all. I know we must have and have
always had the responsibility, morally and legally, to give
people a fair trial. But, Mr. Olson, with regard to many of the
rules that we have in our procedure of justice, the Miranda
rule where you have to warn people before you ask them
questions, the exclusionary rule that says if the constable
erred, you cannot use the evidence against him even if it is a
bloody knife that proves he was a murderer. Those kinds of
things are not part of most developed nations' laws, as I
understand it. Can't you have a fair and just system that does
not provide every single protection in terms of right to
counsel and these other issues I have mentioned?
Mr. Olson. I agree that we can, but the idea--the thing
that concerns me that I have been talking about is applying the
Bill of Rights, as the Supreme Court has interpreted the Bill
of Rights, in the context of a war where there is going to be
judicial review of those decisions. One of the Supreme Court's
decisions this term had to do with a knock-and-announce rule
before you could go into a building. Will that work in Iraq? Do
you have to knock and announce and wait for the bomb to go off?
Now, that is an extreme example, but where is the line to
be drawn between the constitutional rights that the Supreme
Court has articulated with respect to our citizens and the
prosecution of crimes compared to the conduct of a war in
wartime in the battlefield? And I think it is exceedingly
important that we understand that that is a completely
different environment and the people whose home we might be
going into in Iraq because of weapons that are discovered there
are not citizens of the United States and are not subject to
the protections of our Constitution. They wish to destroy our
Constitution.
Senator Sessions. Thank you.
Chairman Specter. Thank you, Senator Sessions.
Senator Hatch.
Senator Hatch. Well, Mr. Olson, you describe the Hamdan
decision as ``an extremely cramped and unworkable
interpretation'' of the Authorization for the Use of Military
Force that Congress passed when this war began. Similarly, as
you describe, the Court found ambiguity in what I thought was
crystal clear Detainee Treatment Act language regarding the
Court's jurisdiction over these habeas corpus lawsuits.
What does this mean for how we respond to the Court's
decision? Some might want to respond with legislation that
amounts to a very particularized, detailed, specific regulatory
approach. Do we still have the flexibility to acknowledge the
constitutional prerogatives of the President as our Commander-
in-Chief?
Mr. Olson. I think it is exceedingly important that there
has to be some sort of legislative response, there is no
question about that, and I would recommend--this is just my
view--that that legislative response acknowledge that during
wartime the President must have flexibility, discretion to make
decisions, of course, not in a lawless way, but flexibility to
respond to circumstances. The Authorization for the Use of
Military Force was couched in general language intentionally, I
submit, because the Congress under those circumstances could
not anticipate and could not prepare an itemized bill of
particulars of every single use of authority or use of military
force that was being authorized by that. So it speaks in terms
of all necessary force to deal with the situation of terrorism.
Now, I understand and I agree with some people that say,
yes, the White House might have taken that too far under
certain circumstances. I am not an expert on that. Those have
to be looked at individually. But the President does need the
authority; and the only way that the Supreme Court is going to
accept that, given what the decision in Hamdan has been, is for
Congress to make it clear wherever it can, if there are to be
procedures, fine; if there is to be a method by which a
military commission is established, fine; but that this body
reinforce what I think it said in the Authorization for Use of
Military Force, that within those ranges, within the
limitations, as understood in the Youngstown Steel case, that
the President has the authority to move forward and exercise
discretion.
Senator Hatch. Mr. Cobb, let me turn to you. In your
testimony, you emphasize that we must maintain what you called
a specialized law of war court that is different from domestic
criminal courts or a court-martial. I would like you to respond
to Professor Silliman's argument that the President should
simply use already established court-martial proceedings under
the Uniform Code of Military Justice rather than separately
established or constituted military commissions. I believe
Commander Smith came to the same conclusion on that. And you
said that notwithstanding its possible surface appeal, this
approach would have, in your words, ``significant problems.''
I would like you to expand on that a bit and perhaps
respond to Professor Silliman's conclusion that we must,
nonetheless, as he put it, set the bar high and take this step
to restore our international credibility.
Mr. Cobb. Well, Senator, that is an excellent question that
really sums up a lot of what we have been discussing today, and
I think that, you know, whatever you call the tribunal, the war
crimes tribunal that we use to prosecute war crimes, it has to
have certain key features. And if you change a court-martial
into, you know, a new forum that has those key features, you
are basically calling a rose by another name.
The court-martial system, if modified, I would argue is
really a military commission system. If you keep the court-
martial system as it is, you are going to have a number of
problems in going forward. You are going to have problems with
introduction of evidence. You are going to have problems with
handling classified evidence. And you are going to wind up with
much fewer prosecutions.
I am somewhat familiar with the evidence that we have with
respect to the detainees at Guantanamo, and I think that if you
ratchet up the level of procedural requirements so high, you
will wind up having few, if any, war crimes prosecutions. I
think that is to the detriment of us all because I think that
there is an inherent value to having these prosecutions. It
gives justice to the detainee, and it gives justice to the
people of the United States who want to understand what has
happened in this war on terrorism.
Senator Hatch. Mr. Chairman, could I just possibly ask one
more question?
Chairman Specter. One more question. Proceed, Senator
Hatch.
Senator Hatch. Okay. Mr. Collins, I would like to ask you
this question. On the theme of reading the Hamdan decision for
what it is rather than reading into it what we might want it to
say, I would like you to expand on the point in your testimony
that the Court did not find any constitutional violation. That
is, the Court did not say that the Constitution compelled its
conclusion that the procedures used in the military commissions
created by President Bush were inadequate. As you pointed out,
Justice Kennedy said in his concurring opinion that domestic
statutes controlled the case.
Now, why is this point so important? Does it mean that
since you emphasized this is indeed a very real war, the Court
was not questioning the President's essential Executive
authority as Commander-in-Chief to establish military
tribunals? Does it give the Congress more flexibility with
regard to how we respond to the Court's decision?
Mr. Collins. I think that it does. You know, we read the
opinion, and it is 70-something pages, and it is hard to think
that there were actually more issues in the case, but there
were. The common Article 3 issue, the merits of that issue, was
addressed in the last paragraph of the Government's brief, the
carryover paragraph from page 49 to 50, because there were so
many other issues in the case. There were quite a number of
constitutional challenges that had been raised to commissions,
and the Court did not accept any of those arguments but,
rather, seemed to operate from the premise that this was
validly considered to be a subject of military justice, and it
was a question of what the procedures were, and it found
violations of a purely statutory and treaty nature. But the
treaty one is unusual in the sense that because they
essentially said the treaty says that you have to have a
properly authorized structure, it is one that can also be
fulfilled by legislation.
So this is not a case where the legislation would seek to
kind of override the treaty by statute, which is something you
can do, but it is not something you need do here. A statutory
fix will solve the problems identified by the Court's opinion.
Chairman Specter. Thank you, Senator Hatch.
Thank you all. We could continue this hearing--
Senator Feinstein. Mr. Chairman, may I have just one
chance?
Senator Specter. Senator Feinstein, you are recognized.
Senator Feinstein. Thank you very much.
Lieutenant Commander Swift, I was very interested to hear
your testimony, largely because you are really the only one
that I know of that has actually represented someone in this
situation. And if I had to state where I am today, it would be
that we ought to take the Code of Military Justice, go through
it very carefully, make decisions as to what is appropriate in
this circumstance and what is not appropriate, and codify that
and add a codification of the treatment level similar to what
Secretary England just did in his missive to DOD.
My concern--and I want to ask you about this. I was at
Guantanamo once with Secretary Rumsfeld and Senator Hutchison
and I think Senator Inouye. It was early on. But I was struck
by the isolation of the facility and how you put together any
kind of defense, let's even say appropriate defense, how you
get the information, how you are able to talk with witnesses.
And I was wondering if you would comment on that.
If we were to do that with the Code of Military Justice and
make decisions, Republicans and Democrats hopefully coming
together, as to what would be an appropriate new bill, could
that, regardless of what it was, be effectively carried out in
the Guantanamo setting?
Commander Swift. There are two parts to your question,
ma'am, and I will start with the first part.
I agree, in Mr. Hamdan's case we fought very hard to get
him a fair trial, and we know the UCMJ represents that. One
should look at the UCMJ, not only just what is written in the
statutes, but also what CAF, the Code of Armed Forces for the
Military, has said and what each of the service courts have
said. A lot of talk has been out there about, for instance,
Article 31 Bravo, that it would somehow stop prosecutions. Yet
CAF has said a great deal about 31 Bravo, and in the United
States v. Lonetree--
Senator Feinstein. Tell me what the 31 Bravo is.
Commander Swift. I am sorry, ma'am. That is the military
equivalent to Miranda. That has been thrown around as a real
problem. But what was said in that particular case was that,
for instance, for intelligence-gathering purposes, then 31
Bravo would not apply. It would only apply to law enforcement.
So I think what all of that stands for is that it takes a
very careful reading through, because not only is there the
code, there are 50 years of interpretation of it. And that is
why a court-martial would work immediately now, because we
would know--we as military attorneys know what the rules are. I
can start the trial now and go forward. And I think you raise
another very good point, ma'am. It has been 5 years, at a
minimum, for a lot of this. Witnesses are disappearing on both
sides very quickly. If we wait, if we do not move forward and
do not use courts-martial, and after more litigation we find
ourselves right back here in 4 or 5 more years after we have
litigated through a quick fix, then what are we going to end up
with? Neither side will ever get a fair trial, and both Mr.
Hamdan and the United States deserve one.
Senator Feinstein. All right. Now, take Guantanamo.
Assuming what you say was done, can it be effectively carried
out in an isolated setting?
Commander Swift. It makes it much more difficult doing it
away from the battlefield. It is going to require that we have
access to the battlefields. Unfortunately, that is what has
happened. Can it be done? Well, I think anything can be done if
you put the resources into it. It probably would have been
easier, at least in Mr. Hamdan's case, to do it in Afghanistan.
We are not there now. I am seeking a fair trial, and if the
Government gives me the resources to go through--and they have
done that so far--then we will do the best we can. But I stress
that we need to do it now, and by court-martial.
Senator Feinstein. Just quickly--and I thank you because
the time runs out--does anyone on the panel differ with that?
And if so, how? Dr. Koh.
Mr. Koh. Well, I just had an important point to make about
the prior comment that there is no constitutional issue. As a
law dean, I should just say that is just a misstatement of law,
and this Committee should care about it. To say that Hamdan is
not a constitutional decision is like saying the steel seizure
case is not a constitutional decision and only involved an
interpretation of the Taft-Hartley Act. What we all know is
that the steel seizure case turned on which category of
Youngstown Sheet and Tube it fell into. Was it in the highest
category in which the President's power is at its peak? Or is
it in the lowest category because the President was acting in
the face of and contrary to an existing statute of Congress?
And what the Supreme Court said in Hamdan by a majority is
it is in the lowest category because they did not act
consistently with the opinion. This is Footnote 23 of the
majority opinion. Justice Kennedy's concurrence specifically
mentions the steel seizure case, and Justice Thomas in his
dissent also puts the case into the Youngstown framework,
although he comes to a different conclusion.
So it is just wrong to say that this case is about statutes
only. There is a constitutional dimension of this case, and
were this court to legislate, it would have to be doing it in
that framework as well.
Senator Feinstein. Thank you.
Chairman Specter. Thank you very much, Senator Feinstein.
Mr. Silliman. Mr. Chairman, may I--
Chairman Specter. You want to make an additional comment,
Professor Silliman?
Mr. Silliman. May I just add one brief comment? Military
commissions and courts-martial from their very beginning were a
product of Executive power under his Commander-in-Chief
authority with the support and the assistance and enactment of
legislation from the Congress. Now we face the same issue, that
where we go from here, whether it be any of the options that
any of us have discussed, must absolutely be a product, a joint
product of the administration and the Congress. If either
branch tries to do it by itself, it will not work, sir.
Chairman Specter. Thank you very much, Professor Silliman,
and thank you all. As I had started to say a few moments ago,
we could go on at some considerable length. We had previously
scheduled the confirmation hearing of Mr. Haynes for 2:15, and
we pushed that back to 3 o'clock, and we are a little late on
that. But we very much appreciate your coming in, and this has
been an extraordinary panel that has given us a very wide range
of options to select from, starting with simply the
congressional ratification of what the President has done, to a
full range of rights almost equivalent to what goes in a
Federal criminal trial. And we will be wrestling with the
issues of the right to counsel and Miranda rights and access to
classified information and exculpatory evidence, Brady, and the
Uniform Code of Military Justice and Article 3 of the Geneva
Convention. We will be working coordinately with the
administration. And the Armed Services Committee and this
Committee will be working jointly, and we will come up with a
product.
It is very important that we do so promptly. There are many
individuals involved, and we are under direction by the Supreme
Court. This is really perhaps as much of a classical case of
separation of powers as you could find, with the intervention
of Articles I, II, and III all together. And it is very helpful
to have professors and deans and practitioners and defense
lawyers all at the table to give us advice. It has been very
helpful.
We thank you, and that concludes our hearing.
[Whereupon, at 3:08 p.m., the Committee was adjourned.]
[Questions and answers and submissions follow.]
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