[Senate Hearing 109-1056]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 109-1056
 
       HAMDAN V. RUMSFELD: ESTABLISHING A CONSTITUTIONAL PROCESS 

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

                                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

                              ----------                              

                    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

                              ----------                              


                         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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