[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
                         [H.A.S.C. No. 111-81]

 PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS 
                              ACT OF 2006
                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION
                               __________

                              HEARING HELD

                             JULY 16, 2009


                                     
               [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]















________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 
866-512-1800 (toll-free). E-mail, [email protected].  



                   HOUSE COMMITTEE ON ARMED SERVICES
                     One Hundred Eleventh Congress

                    IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina          HOWARD P. ``BUCK'' McKEON, 
SOLOMON P. ORTIZ, Texas                  California
GENE TAYLOR, Mississippi             ROSCOE G. BARTLETT, Maryland
NEIL ABERCROMBIE, Hawaii             MAC THORNBERRY, Texas
SILVESTRE REYES, Texas               WALTER B. JONES, North Carolina
VIC SNYDER, Arkansas                 W. TODD AKIN, Missouri
ADAM SMITH, Washington               J. RANDY FORBES, Virginia
LORETTA SANCHEZ, California          JEFF MILLER, Florida
MIKE McINTYRE, North Carolina        JOE WILSON, South Carolina
ROBERT A. BRADY, Pennsylvania        FRANK A. LoBIONDO, New Jersey
ROBERT ANDREWS, New Jersey           ROB BISHOP, Utah
SUSAN A. DAVIS, California           MICHAEL TURNER, Ohio
JAMES R. LANGEVIN, Rhode Island      JOHN KLINE, Minnesota
RICK LARSEN, Washington              MIKE ROGERS, Alabama
JIM COOPER, Tennessee                TRENT FRANKS, Arizona
JIM MARSHALL, Georgia                BILL SHUSTER, Pennsylvania
MADELEINE Z. BORDALLO, Guam          CATHY McMORRIS RODGERS, Washington
BRAD ELLSWORTH, Indiana              K. MICHAEL CONAWAY, Texas
PATRICK J. MURPHY, Pennsylvania      DOUG LAMBORN, Colorado
HANK JOHNSON, Georgia                ROB WITTMAN, Virginia
CAROL SHEA-PORTER, New Hampshire     MARY FALLIN, Oklahoma
JOE COURTNEY, Connecticut            DUNCAN HUNTER, California
DAVID LOEBSACK, Iowa                 JOHN C. FLEMING, Louisiana
JOE SESTAK, Pennsylvania             MIKE COFFMAN, Colorado
GABRIELLE GIFFORDS, Arizona          THOMAS J. ROONEY, Florida
NIKI TSONGAS, Massachusetts          TODD RUSSELL PLATTS, Pennsylvania
GLENN NYE, Virginia
CHELLIE PINGREE, Maine
LARRY KISSELL, North Carolina
MARTIN HEINRICH, New Mexico
FRANK M. KRATOVIL, Jr., Maryland
ERIC J.J. MASSA, New York
BOBBY BRIGHT, Alabama
SCOTT MURPHY, New York
DAN BOREN, Oklahoma

                    Erin C. Conaton, Staff Director
                  Paul Oostburg Sanz, General Counsel
                Roger Zakheim, Professional Staff Member
                    Caterina Dutto, Staff Assistant
                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2009

                                                                   Page

Hearing:

Thursday, July 16, 2009, Prosecuting Law of War Violations: 
  Reforming the Military Commissions Act of 2006.................     1

Appendix:

Thursday, July 16, 2009..........................................    35
                              ----------                              

                        THURSDAY, JULY 16, 2009
 PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS 
                              ACT OF 2006
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

McKeon, Hon. Howard P. ``Buck,'' a Representative from 
  California, Ranking Member, Committee on Armed Services........     2
Skelton, Hon. Ike, a Representative from Missouri, Chairman, 
  Committee on Armed Services....................................     1

                               WITNESSES

Black, Lt. Gen. Scott C., USA, The Judge Advocate General, U.S. 
  Army...........................................................     4
MacDonald, Vice Adm. Bruce E., USN, The Judge Advocate General, 
  U.S. Navy......................................................     5
Rives, Lt. Gen. Jack L., USAF, The Judge Advocate General, U.S. 
  Air Force......................................................     5
Walker, Brig. Gen. James C., USMC, Staff Judge Advocate to the 
  Commandant, U.S. Marine Corps..................................     7

                                APPENDIX

Prepared Statements:

    Black, Lt. Gen. Scott C......................................    39
    MacDonald, Vice Adm. Bruce E.................................    45
    Rives, Lt. Gen. Jack L.......................................    51
    Walker, Brig. Gen. James C...................................    57

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    Dr. Snyder...................................................    65

Questions Submitted by Members Post Hearing:

    Mr. Skelton..................................................    69
 PROSECUTING LAW OF WAR VIOLATIONS: REFORMING THE MILITARY COMMISSIONS 
                              ACT OF 2006

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                           Washington, DC, Thursday, July 16, 2009.
    The committee met, pursuant to call, at 2:04 p.m., in room 
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman 
of the committee) presiding.

 OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM 
        MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES

    The Chairman. The committee will come to order.
    Since the 109th Congress deliberated and passed the 
Military Commissions Act of 2006, I have argued that the most 
important task before us has been to design a system that would 
withstand legal scrutiny and would be found to be 
constitutional. I doubted at the time and still believe that 
the current system could survive a Supreme Court review. By my 
estimation, there are at least seven potential defects in this 
act.
    First, the Supreme Court has already held in Boumediene 
that the Military Commissions Act constitutionally stripped 
Federal courts of jurisdiction over habeas corpus.
    Relatedly, the act may violate the exceptions clause under 
Article III of the Constitution by impermissibly restricting 
the Supreme Court's review.
    Third, it is questionable whether the Supreme Court would 
uphold a system that purports to make the President the final 
arbiter of the Geneva Convention.
    Fourth, the provisions regarding the coerced testimony may 
be challenged under our Constitution.
    Fifth, the act contains very lenient hearsay rules which 
rub up against the right of the accused to confront witnesses.
    Sixth, the act may be challenged under equal protection and 
other Constitutional grounds for how it discriminates against 
the detainees for being aliens.
    Lastly, Article I of the Constitution prohibits ex post 
facto laws; that is, what this act may have created.
    At the President's instruction, the Administration is 
conducting an inter-agency review of detainee policy. This 
inter-agency task force should be recommending reforms to the 
military commissions law. Already, the Administration has 
commented on the suggested amendments to the Military 
Commissions Act that our colleagues in the Senate Armed 
Services Committee include in their National Defense 
Authorization bill; and I invite each of our witnesses to 
provide their assessment of whether the Senate bill has gone 
far enough to correct the potential constitutional infirmities 
or not.
    The bottom line is that we must prosecute those who are 
terrorists with the full force of the law, but we must also 
make sure that the convictions stick. Certainty of convictions 
must go hand in hand with tough prosecutions. And being a 
former prosecutor in my home county, the worst thing that one 
anticipates or could anticipate is a Supreme Court freeing 
someone that a jury in your home county convicted. Permitting 
hardened terrorists to escape jail time because we didn't do 
our jobs here in Congress to fix this act would be a travesty 
of justice.
    Now, I turn to my good friend and colleague, the gentleman 
from California, Mr. McKeon.

 STATEMENT OF HON. HOWARD P. ``BUCK'' MCKEON, A REPRESENTATIVE 
  FROM CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES

    Mr. McKeon. Thank you, Mr. Chairman. Thank you for holding 
a hearing on such an important topic: prosecuting terrorists 
for law of war violations through the Military Commissions Act 
of 2006, or MCA.
    Let me also begin by welcoming to the committee our 
witnesses, the Judge Advocate Generals for each of the 
services. Gentlemen, good afternoon. And thank you for being 
here.
    Before we jump into the heart of today's hearing, the 
Military Commissions Act, I just want to note that we have 
another hearing next week with senior Department of Defense and 
Department of Justice officials on the Administration's overall 
detainee policy. At that hearing, I look forward to discussing 
the President's plan for a preventive detention system and the 
findings of the Detainee Task Force on a detainee policy which, 
pursuant to the executive orders, is due to complete its work 
next week.
    In my view, the 2006 MCA was a fair piece of legislation 
and a product of careful negotiations between the House, 
Senate, and the previous Administration. In that light, I 
welcome President Obama's decision to use military commissions 
as a tool for prosecuting those who violate the laws of war.
    In his speech at the National Archives on May 21, the 
President recognized correctly that we are at war with al Qaeda 
and its affiliates, and that commissions are an appropriate 
forum for prosecuting those who violate the laws of war.
    The President rightly noted that military commissions have 
a long history of protecting sensitive intelligence sources and 
methods, while allowing for the introduction of evidence unique 
to battlefield contingencies.
    It is worth recalling that the 2006 MCA passed the House 
and Senate by a comfortable vote with bipartisan support. Yet 
the 2006 MCA, like any other law, is not perfect and could use 
improvement, especially now that we have the benefit of seeing 
the system in practice.
    I hope that during today's hearing, each of you will share 
your independent view on the legislation proposed by the Senate 
Armed Services Committee (SASC) to amend the 2006 MCA. I 
understand the committee language is the product of a 
bipartisan effort and enjoys the support of Senators McCain and 
Graham, but I would like to hear if you have any suggestions or 
concerns with respect to the proposal and whether you feel 
there are any steps that Congress should take to ensure we have 
an effective military commissions system.
    Finally, I would also like to ask you to hear your thoughts 
on the Administration's proposed changes to the SASC language.
    After looking at both the Senate and White House proposals, 
I have a number of questions and concerns I hope you will be 
able to address today. My first concern is forum choice. If we 
are going to utilize the military commissions, we need to 
ensure that any changes to the framework make the commissions 
more efficient and bring swift justice to terrorists.
    While the commissions have only convicted three 
individuals, at least 19 other detainees have charges currently 
pending and at least another 40 could be charged as well.
    Let me be clear on one point. I think we should use the 
military commissions to try all detainees who have violated the 
laws of war.
    I also have grave concerns about the President's preference 
to use Article III courts to try some of the detainees 
currently being held in Guantanamo Bay. In my view, trials of 
terrorists need to stay within the paradigm of armed conflict. 
The required procedures and rules of evidence in Federal courts 
are not fit for trials in the armed conflict paradigm. Most 
importantly, prosecuting some detainees in Federal courts and 
others in commissions, in the absence of clear criteria guiding 
this decision, will lead to the perception that commissions are 
an inferior system or a kangaroo court. This is an unacceptable 
outcome and dishonors the uniformed personnel working on 
military commissions.
    A related concern that I hope you will discuss is where we 
intend to hold these commissions. I would like to know how, if 
at all, the MCA and rules for military commissions may need to 
change if the Administration decides to hold commissions within 
the continental United States.
    I look forward to your testimony, and hope that the 
discussion we have today will help us work with the Senate to 
improve the 2006 MCA so that the Administration will use the 
MCA framework to bring terrorists to justice. I yield back.
    The Chairman. I thank the gentleman.
    Before us today our witnesses are, from my left to right, 
Lieutenant General Scott Black, Judge Advocate General, United 
States Army; Vice Admiral Bruce MacDonald, Judge Advocate 
General of the United States Navy; Lieutenant General Jack--is 
it Reeves or Rive?--Rives, Lieutenant General Jack Rives, 
United States Air Force Judge Advocate General; and Brigadier 
General James Walker, United States Marine Corps, Judge 
Advocate to the Commandant of the Marine Corps.
    We thank you gentlemen for being with us today. We will go 
down the line.
    General Black, you are on.

 STATEMENT OF LT. GEN. SCOTT C. BLACK, USA, THE JUDGE ADVOCATE 
                       GENERAL, U.S. ARMY

    General Black. Thank you, Mr. Chairman, Ranking Member 
McKeon, members of the committee. I would like to thank you for 
the opportunity to appear here today for the committee's 
consideration of these important issues. I join in endorsing 
and encouraging continued congressional and Administration 
efforts to reform military commissions for the trial of 
unprivileged belligerents accused of violations of the law of 
war during our country's ongoing conflict against those who 
planned and conducted the attacks against us on September 11, 
2001, as well as those detained during the conduct of 
associated military and intelligence operations.
    I am confident that this reform effort will result in a 
system that meets the standards for military commissions 
described by the Supreme Court in Hamdan v. Rumsfeld. I am 
similarly confident that such reforms of military commissions 
will satisfy any outstanding concerns relative to our demand 
for a system characterized by our proper devotion to standards 
of due process recognized under the law of war, our commitment 
to ensuring fair treatment of the accused, and reliable results 
in any commission proceeding.
    I offer the following comments in relation to a few 
specific proposals found in the Senate version of the act.
    First, I understand that the Administration favors adoption 
of a voluntariness standard on the admissibility of statements 
into evidence. I acknowledge and respect the prerogative of the 
Administration to resolve policy on all such matters, but 
maintain my recommendation against adoption of a voluntariness 
standard and in favor of a reliability standard where 
voluntariness is a relevant factor in resolving whether 
statements warrant admission at a commission trial.
    Second, I support the Administration's proposal to adopt 
the most recent developments in federal practice under the 
Classified Information Procedures Act for application to trial 
by military commissions in this context.
    Third, I disagree with the Senate's proposal to establish 
the Court of Appeals for the Armed Forces as an intermediate 
court of appeals for those convicted by military commissions. I 
favor instead the Administration proposal to modify the 
responsibility and authority of the Court of Military 
Commission Review by infusing that court with the same 
responsibility and authority of our service courts of criminal 
appeals under Article 66 of the Uniformed Code of Military 
Justice.
    I believe you have a copy of the balance of my full 
statement for inclusion in the record, Mr. Chairman.
    As an aside, I would like to offer my thanks to this 
committee for their hard work and tremendous support for 
soldiers and their families. I can assure you that we are 
deeply grateful for both. And with that, sir, I look forward to 
your questions.
    [The prepared statement of General Black can be found in 
the Appendix on page 39.]
    The Chairman. Admiral, please.

   STATEMENT OF VICE ADM. BRUCE E. MACDONALD, USN, THE JUDGE 
                  ADVOCATE GENERAL, U.S. NAVY

    Admiral MacDonald. Thank you, Mr. Chairman. Chairman 
Skelton, Ranking Member McKeon, and members of the committee, 
thank you very much for providing me the opportunity to present 
my views on military commissions.
    In 2006, Congress enacted the Military Commissions Act. 
This act established the jurisdiction of commissions, set 
baseline standards for their operation, and prescribed 
substantive offenses. The act also authorized the Secretary of 
Defense to promulgate procedural and evidentiary rules to be 
used in military commissions and to establish the elements of 
the substantive offenses. Those rules were completed in early 
2007, and additional rules were recently promulgated by the 
Secretary of Defense on May 15 of this year and became 
effective on July 13th of this year.
    The current framework, in my opinion, provides an 
appropriate balance that ensures important rights and 
protections for an accused while also providing the government 
with an effective means of prosecuting an accused before a 
military commission. Nevertheless, there is room for 
improvement in a number of areas. Some examples include the 
rules relating to classified evidence, the admissibility of 
hearsay evidence and statements of the accused, information 
that must be disclosed to the accused, and the type of review 
to be applied during the appellate process.
    I recently testified before the Senate Armed Services 
Committee on its proposal that would, in my view, fix many of 
these issues, but I recommended that additional changes be 
considered. Regardless of the method used to revise the 
Military Commissions Act, the first step toward the needed 
changes is establishing an open dialogue to share views on 
these issues.
    In September 2006, when we last testified before this 
committee, it was the view of the Judge Advocates General that 
whatever process was eventually established should be tested 
against two standards: First, it must be consistent with our 
Nation's notions of justice and fairness. Second, we must be 
willing to have our own service members tried under the same 
standards and procedures that we apply. Those standards should 
continue to inform our discussion today as we consider changes 
to the Military Commissions Act. For that reason, I commend 
your efforts and thank you very much for the opportunity to 
appear before you this afternoon, and I look forward to 
answering your questions.
    [The prepared statement of Admiral MacDonald can be found 
in the Appendix on page 45.]
    Mr. Ortiz [presiding]. General Rives.

 STATEMENT OF LT. GEN. JACK L. RIVES, USAF, THE JUDGE ADVOCATE 
                    GENERAL, U.S. AIR FORCE

    General Rives. Mr. Chairman, Ranking Member McKeon, members 
of the Armed Services Committee, good afternoon, and thank you 
for this opportunity to testify today on the subject of 
military commissions. I would like to emphasize that the views 
expressed in my testimony are my own and do not represent the 
views of the Department of Defense or the Administration.
    Military commissions have a long history in this country as 
a mechanism to address possible violations in the law of war. 
Military commissions were used extensively during and after 
World War II, and they were again called upon in the aftermath 
of the September 11, 2001 attacks. After action by the 
Executive and review by the Supreme Court, the Congress acted 
in 2006 to pass the Military Commissions Act, providing the 
President statutory authority to establish military commissions 
to try traditional offenses as codified in the Military 
Commissions Act.
    The effort to make military commissions more fair and 
credible enhances national security by providing effective 
alternatives to try international terrorists who violate the 
law of war. Periodic review of the military commissions 
legislation and procedures is vital to an effective and fair 
commission process.
    As required by the Military Commissions Act, the Secretary 
of Defense notified the Congress in May of this year of 
proposed changes to the Manual for Military Commissions 
affecting procedures used by the military commissions. Those 
amendments will improve the military commissions process.
    As a result of those changes, statements obtained using 
interrogation methods that constitute cruel, inhuman, and 
degrading treatment cannot be admitted as evidence at trial. 
The burden of proof on admissibility of hearsay will shift to 
the party that offers it. The burden will no longer be on the 
party that objects to hearsay to disprove its reliability.
    The accused will have greater latitude in selecting defense 
counsel. In situations where the accused elects not to testify 
but offers his own prior hearsay statements, the military judge 
will no longer be required to instruct the members to consider 
the accused's decision not to be cross-examined on the hearsay 
statements and that the statements are not sworn. Any such 
instruction will now be left to the discretion of the military 
judge.
    Military judges may establish the jurisdiction of their own 
courts. Under prior practice, jurisdiction for a military 
commission to hear a case was established by a prior combatant 
status review tribunal.
    Further review, of course, is ongoing within the 
Administration. Changes to the Military Commissions Act of 2006 
have also been advanced by the Senate Armed Services Committee. 
Some of the recommendations include making the changes that I 
have just mentioned statutory. Additional changes are also 
appropriate. I highlight two for your consideration.
    First, reforms in the rules for handling classified 
information would have significant impact. Procedures that 
follow the Classified Information Procedures Act (CIPA) would, 
with appropriate modification, balance the government's need to 
protect classified information with the defendant's interests. 
The substantial body of that case law that has developed over 
the years would provide valuable guidance to lawyers and the 
commissions.
    Next, expanding the scope of appellate review to include 
review of factual matters, as the service courts of criminal 
appeals enjoy under Article 66 of the Uniform Code of Military 
Justice, is desirable. Also retention of the current Court of 
Military Commissions Review, which is comprised in whole or in 
part of those with the experience as military appellate judges 
who are comfortable reviewing cases for both factual and legal 
sufficiency, is logical and efficient.
    I encourage you to closely consider these revisions, and I 
stand ready to assist, as appropriate, in your efforts. You 
have a copy of my full statement for inclusion in the record. 
Again, I thank you for the opportunity to testify, and I look 
forward to answering your questions.
    [The prepared statement of General Rives can be found in 
the Appendix on page 51.]
    Mr. Ortiz. General Walker.

  STATEMENT OF BRIG. GEN. JAMES C. WALKER, USMC, STAFF JUDGE 
         ADVOCATE TO THE COMMANDANT, U.S. MARINE CORPS

    General Walker. Thank you, Chairman Skelton, Ranking Member 
McKeon, and honorable members of the Armed Services Committee. 
Good afternoon. I appreciate the opportunity, as the other 
witnesses, to come before you today and testify regarding the 
military commissions.
    The military commissions over the past few years have 
demonstrated the difficult balance between individual due 
process, fundamental fairness, and our national security 
interests.
    I support the majority of the amendments to the Military 
Commissions Act proposed by Senate Bill 1390, because they will 
help maintain that difficult balance. I concur with the 
comments of the other witnesses as to specific provisions and, 
in the interest of time, will not repeat those comments.
    The procedures and rules that we adopt for the military 
commissions are important to our Nation and also to all current 
and future members of the Armed Forces. As a Nation, we have 
forces deployed around the world advancing the rule of law. We 
must demonstrate our commitment to fairness and those 
guarantees indispensable for civilized nations. We must also 
remain cognizant of the fact that how we administer the 
military commissions can, and likely will, impact how U.S. 
forces will be treated by other nations in future conflicts at 
a time unknown.
    I thank you for your opportunity to express my views on 
these difficult issues, and I look forward to answering your 
questions.
    [The prepared statement of General Walker can be found in 
the Appendix on page 57.]
    Mr. Ortiz. Thank you very much. Not being a lawyer, and 
reading through some of the information, I just have a few 
questions. I am going to allow and give time to my colleagues 
to ask questions, but my question that I want to ask from all 
of you is: Why is providing material support for terrorism a 
crime subject to prosecution in military commissions, since it 
has not traditionally been an offense under the law of war? And 
maybe you could explain to me a little bit, enlighten me on 
why.
    Admiral MacDonald. Sir, I can--I will start off. We 
actually can find material support for terrorism in the law of 
war. And, in fact, we have one military commissions case, the 
Hamdan case, where Judge Allred in that case actually found--
and in his opinion upholding material support, found that 
particular crime in the law of war and traced it back to the 
Civil War. So we do have it extant in our own law of war 
jurisprudence.
    General Rives. Congressman, I agree that material support 
for terrorism or terrorist organizations remains an appropriate 
charge for military commissions. The law of war is prohibitive 
law. If it does not prohibit, then it permits. And there is 
history behind having such an offense as material support as a 
chargeable offense for a military commission.
    I also note that in the Military Commissions Act of 2006, 
Congress provided that the crimes in section 950(v) codify 
offenses that have been traditionally triable by military 
commissions.
    As Admiral MacDonald has mentioned, material support has 
been specifically charged; there have been objections to it, 
but judges have ruled. And I believe the proper course of 
action is to let judges consider the arguments in specific 
cases at the trial and, as appropriate, appellate levels to 
determine the continuing viability of material support as an 
offense.
    General Black. Mr. Ortiz, I agree with the comments of my 
colleagues already, and I would add just a couple of points. 
One, of course, the language is already in the SASC bill. But, 
two, I would rather litigate it in trial than just forego the 
opportunity by excluding the offense in the current legislative 
package. So I would argue in favor of including it.
    General Walker. Sir, I agree with the other witnesses. I 
think, first of all, there is support in international law that 
the law of war does support the charge of material support to 
terrorism. And we have at least one experience with the courts 
at Guantanamo where a judge has so held that. I think this is 
one of those issues that we will never be able to say for 
absolute certainty, is it encompassed in the law of war? 
Because, of course, those specific words aren't there. This is 
the exact issue that is the subject of litigation that we 
should litigate, and there is an adequate basis under law to 
proceed with that charge.
    Mr. Ortiz. Thank you. I have another question. Should 
detainees who allegedly committed law of war violations when 
they were minors, should they be prosecuted under the Military 
Commissions Act of 2006 or a successive legal framework? If 
not, how would you suggest that they be adjudicated? I am 
talking about minors, you know, under the----
    General Black. Sir, I'll start. The factor of age is just 
that, a factor that should be considered by the trier of fact 
in the military commissions. Well, first, by the convening 
authority as they determine whether to refer charges to trial; 
and then, second, as a factor to be considered by the trier of 
fact if a case is brought forward. So, yes.
    Admiral MacDonald. Sir, there--again, there is history in 
the law of war that military commissions are an appropriate 
forum to try minors. And I would agree with General Black. 
Certainly the convening authority in the case can take a look 
at the specific facts and circumstances, including the age of 
the minor, when making that decision whether or not to refer 
charges to a military commission in a particular case; also, 
the trier of fact, when they are determining whether or not 
they have jurisdiction over a minor. This will go to that 
definition of unprivileged enemy belligerent that we have 
talked about in our opening statements.
    That trier of fact can listen to arguments on both sides 
and determine whether or not a minor actually fits into that 
jurisdictional definition.
    General Rives. And, Congressman, I also agree that the 
issue of whether to hold minors responsible as an adult in a 
criminal matter involves a multifaceted approach.
    First, consideration by the convening authority of whether 
to even charge when considering all the facts and 
circumstances. Then the military judge has a role to play based 
on the legal standards. And finally, the trier of fact has 
decisions to make that can be affected by the age of the 
individual accused.
    The law of war does not speak to the issue of minors as 
combatants, except that states can create special safety 
protections for civilians under the age of 15. And that is 
under the Geneva Convention IV. And also, states are required 
to take precautions when persons under the age of 18 are 
recruited into an armed force. So those are considerations, but 
there is no clear determination. It would depend on the facts 
of the given case.
    General Walker. Sir, I believe the most positive point 
under the Military Commissions Act is that there are numerous 
opportunities and safeguards within the existing provisions to 
consider the act of the defendant as one of the factors to 
whether he would bear criminal responsibility for his act, much 
as we do in criminal courts within the United States. So I do 
not feel there is a need to automatically bar prosecutions 
under the Military Commissions Act based on the age.
    Mr. Ortiz. Thank you so much. Let me yield to my good 
friend from California, Mr. McKeon.
    Mr. McKeon. Thank you, Mr. Chairman.
    The Administration has expressed a preference for trying 
detainees in Article III courts. Do you share the same 
preference?
    Admiral MacDonald. Sir, I don't share a preference. I 
believe that whatever we come up with in terms of modifications 
to the current Military Commissions Act, and as I said in my 
opening statement, we have to make sure and we have to leave 
here at the end of the day believing that this is a fair and 
just system that can stand on its own, and that we ought to be 
willing to subject any detainee, any terrorist, to the military 
commission process.
    Now, I understand that the Administration may have, and we 
may have, some reasons for looking towards Article III courts 
that may cause us in a particular case to defer to an Article 
III prosecution. But I think, at the end of the day, we need to 
build a system that can stand on it own.
    General Rives. I agree, Congressman. In my view, the 
military commissions process is historically tested. It can be 
a very fair process. The military commissions that evolved 
through the Military Commissions Act of 2006 is such a fair 
process. It currently is being reviewed to make it even more 
so; to make for transparency, to ensure the rights of an 
accused, to ensure that it meets, easily, international 
standards.
    So my preference would be, get the military commissions 
right, do the prosecutions under the military commissions 
process. Of course, I have no problem if a policy call is made 
in a given case to prosecute someone in an Article III court. 
That does come down to a policy call. But the important factor 
is for people to understand that military commissions are fair, 
they meet international standards, and they are not in any way 
something just to fall back on because we want to assure a 
certain result. The military commissions process is fair, and 
the only guarantee is we are going to provide a fair process.
    The history through World War II was the almost 2,500 
people who were prosecuted in the European and Pacific theaters 
during and immediately after World War II had a conviction rate 
of 85 percent. The cases we have already had, we have seen that 
people are not necessarily being convicted of all charged 
offenses, and the punishment that the members decide is 
appropriate has not been as severe as some people thought would 
happen.
    So the military commissions process is very fair, and it 
should be given a chance to work out. I do support the efforts 
of the Administration and Congress to make it even more fair 
than it has been.
    General Black. Sir, I agree with the comments of my 
colleagues. I would only add that the process here has to be 
perceived as fair and just, and there should not be a 
preference for any one system over the other. Article III 
courts are just another tool in the kit bag that is available 
to our country for resolving these issues and these crimes.
    General Walker. I believe we are fortunate to have two 
forums in which we can charge these offenses, both which meet 
the international mandates, meet the law of war, and meet those 
fundamental principles of justice. It is a policy call which 
forum is chosen. I think we can make both work to achieve our 
Nation's goals.
    Mr. McKeon. I am not trying to get you to talk against the 
Administration. That would be--You know--I understand the 
situation. My concern is that if you decide to send some to 
Article III courts and some to military courts, what--is there 
a judgment made prematurely that indicates that one is less 
guilty than another or goes to one court over--you know, how do 
you determine which court would handle? That is one of the 
concerns I have on that.
    Are you concerned that this process will buttress the view 
that military commissions are a second-class system? I think 
you probably addressed that, and I don't want to put you in a 
bad light with the Administration. But we don't want to come up 
with a system where one is considered a kangaroo court and one 
is of a higher, better nature, more fair. That is, I think, the 
thing that we are grappling with.
    General Rives. Congressman, I agree. An Article III court 
clearly gives the full panoply of constitutional and other 
rights to individual accuseds. The military commissions are 
designed for a specific purpose. A part of it is based on the 
very function of a military commission, which is based not on 
United States constitutional standards for civilian criminal 
defendants, but the battlefield. Soldiers on the battlefield 
are not law enforcement specialists. They are not acquiring 
evidence in strict conformance with constitutional standards 
and judicial rulings that provide protections.
    So the point is the military commissions need to be clearly 
fair and well within international standards. I am satisfied 
that they are, and that the additional protections that will be 
provided will make them even more so. They should not be viewed 
as second-class justice.
    On the other hand, as we have said and you have said, it 
comes down to a policy call. Should the Administration decide 
in a given case to use Article III courts, that is totally 
appropriate, but they would need to explain why that is the 
preferred venue in a given case.
    Admiral MacDonald. Congressman, in the President's National 
Archive speech he used the phrase ``whenever feasible'' in 
talking about the distinction between going to an Article III 
court and a military tribunal, a military commission. And we 
know that the Administration is working through a set of 
criteria--evaluation criteria to do that, to try to determine.
    So I think to answer your question, the proof will be--you 
know--when we understand the criteria that will be applied to 
make that determination, and then take a look at what cases are 
being referred to Article III and what cases are being referred 
to military commissions.
    Mr. McKeon. And, finally, do you think it makes a 
difference whether the commissions are held at Gitmo or in the 
continental U.S.?
    General Black. No, sir, I don't. I believe that geography 
doesn't matter. These are law-of-war-based criminal 
prosecutions, and geography does not affect the way we should 
draft the rules to accomplish the process.
    Admiral MacDonald. Congressman, I think this comes down to 
what do you believe these commissions are? And there are some 
that believe that these are law enforcement actions; that 
terrorists ought to be tried under a law enforcement model. 
That leads you into U.S. criminal law and the Constitution.
    There are others that believe, as I think we all do, that 
we are at war and that the law of war applies, and that you 
look to the law of war to find the substantive law that should 
be applied. And looking at the Military Commissions Act with 
the SASC amendments, we believe that obviously with some--I 
think we have all talked about some improvements, but we 
believe it meets that law of war standard, and it meets it at 
Guantanamo and it would meet it here in the United States.
    General Rives. And Congressman, as I understood your 
question it is: Does it matter substantively and procedurally 
whether we try cases by military commissions within the United 
States?
    My answer is I don't believe it should matter. We already 
have a ruling from the Supreme Court in the Boumediene case 
saying that the constitutional right for habeas corpus does 
apply to the noncitizens who are in Guantanamo Bay.
    There could be other judges who may determine that because 
we are in the United States, there are some additional rights 
that may accrue to someone being prosecuted even by a military 
commission. My view is that that should not matter and it would 
not matter. But we can't be sure how an individual judge or, 
ultimately, a case on appeal may be decided.
    Admiral MacDonald. I think, sir, we can also look at 
another case, another Supreme Court case, and it is the Hamdi 
case. Hamdi was a U.S. citizen brought from Afghanistan and 
brought into the Navy brig down in Charleston. So we had a U.S. 
citizen in the United States. And Justice O'Connor, in finding 
that Hamdi was entitled to a habeas proceeding, and talking 
about the kind of proceeding, what kind of proceeding that 
would be, she actually looked to the law of war. And she looked 
to Article five of the Third Geneva Convention. Those are 
Article five tribunals that we in the military are very used to 
conducting.
    These are the status determinations on the battlefield when 
you get someone, take them off the battlefield, you convene an 
Article five tribunal to determine their status. Are they a 
lawful combatant, an unlawful combatant? Are they a privileged 
civilian?
    And she specifically pointed towards the law-of-war model 
and said that might be a suitable way to determine status.
    So if she was--if the Supreme Court was willing to do that 
for a U.S. citizen in the United States and apply this law-of-
war detention review process, then we believe that they are 
likely to do the same thing. Nothing is a certainty, but they 
are likely to do the same thing when they evaluate the 
commissions process and the due process accorded to commissions 
here in the United States.
    General Walker. Mr. Chairman, I believe there are--the 
precedents that we have for the extension of constitutional 
rights to detainees have been limited. In the cases where the 
courts have had the opportunity, as Admiral MacDonald 
mentioned, they have chosen a limited application of the 
traditional constitutional protection. And I believe that is a 
correct application of the law, because we should go by the law 
of war.
    However, I have to say that if the commissions were 
geographically sited in the United States, I think it would 
increase the possibility that a particular jurisdiction or a 
Federal court could choose to broaden that scope of 
constitutional protections.
    Mr. McKeon. Thank you. Thank you, Mr. Chairman.
    Mr. Ortiz. Let's see if we can get some clarification on 
something. Now, while each of you support prosecution in 
military commissions, you do not oppose prosecution of 
detainees in Federal civilian courts. Am I assuming correct?
    General Black. That is correct, sir.
    Admiral MacDonald. Yes, sir.
    Mr. Ortiz. All of you?
    General Walker. Aye, sir.
    General Rives. I agree.
    Mr. Ortiz. Thank you. Mr. Taylor.
    Mr. Taylor. Mr. Chairman, I am going to yield to Mr. 
Murphy.
    Mr. Murphy of Pennsylvania. Thank you, Mr. Chairman. And 
thank you, Mr. Taylor.
    Gentlemen, thank you for your service to our country.
    I would like to put you on the spot. I know my colleague on 
the other side of the aisle, Representative Rooney, you know--
he served as a young captain, a judge advocate in that First 
Calvary Division, and I was a young captain in the 82nd 
Airborne Division. Who would be a better judge advocate? Who 
would you rather have on your team?
    But I won't put you on the spot because we all know that 
the Airborne leads the way. So I will get right to my question.
    Gentlemen, I think it is important that we are having this 
hearing today to try to figure out the details of how we can 
constitutionally and fairly put these suspected terrorists on 
trial in a way that is consistent with our values while still 
keeping our service members and our families here in America 
safe. As a former judge advocate and a constitutional law 
professor at West Point, to many of us this is very personal.
    The Administration has yet to formally comment on the exact 
definition of an enemy combatant, and clearly the Bush 
Administration, in my opinion, stretched the boundaries of what 
exactly constitutes an enemy combatant.
    Back in 2004, a Deputy Associate Attorney General argued in 
Federal district court that an old lady in Switzerland, who 
wrote a check to a charity that, without her knowledge, passed 
those funds on to an al Qaeda organization, could be held as an 
enemy combatant. When asked to explain this, the representative 
for the Bush Administration said that, under the 2001 
Authorization for the Use of Military Force, the government 
could hold the woman indefinitely, and that someone's intention 
is clearly not a factor that would disable detention.
    The Military Commissions Act states that, ``To be declared 
an unlawful enemy combatant, an individual must have purposely 
and materially supported hostilities against the United 
States.'' But the 2001 Authorization for Use of Military Force 
makes no such distinction, merely leaving the decision up to 
the President as to whether someone engaged in or supported 
hostilities against the United States.
    So my question to the panel: In your opinion, in your view, 
does mens rea--obviously the mental intent--should it play a 
key role in determining who the government should and should 
not classify as an enemy combatant? Gentlemen, I appreciate 
your answers.
    General Black. Mr. Murphy, thank you. And thank you and Mr. 
Rooney for your service in my corps. I won't take sides with 
the respective divisions that you both served in. They are both 
wonderful organizations and produce great officers and 
soldiers.
    Now, with respect to your question, the objective here 
ought to be as narrowly and carefully tailored a definition as 
we can possibly come up with. And, yes, mens rea should be part 
of the package.
    Purposefully and materially supporting hostilities is a 
definition we can work with. It does provide the sufficient--
the element of mens rea, and I would support that. We look 
forward to working with the Administration and continuing to 
work with the Administration to refine the definition to get to 
exactly the end state that we need in this regard.
    Mr. Murphy of Pennsylvania. Thank you.
    Admiral MacDonald. Congressman, I agree completely with 
that. Mens rea should be an element of any of the crimes, the 
material support crime, the conspiracy, aiding and abetting. 
And also in terms of detention, it should be an element as well 
before we detain.
    General Rives. Mr. Murphy, as you were speaking, I was 
thinking I was glad you are not my law professor.
    Mr. Murphy of Pennsylvania. I did lecture at the Air Force 
Academy in Colorado Springs, but only for a few weeks.
    General Rives. Well, you are welcome to come back anytime, 
and I won't be in your class.
    But I agree that we need to be careful with how we define 
these terms. Lawyers know you have got a lot of discretion in 
how you charge, but I believe we should only charge those who 
we believe really committed a criminal offense, one that is 
punishable for military commissions purposes under the laws of 
war.
    Mens rea really is a critical element in ultimately getting 
a conviction. We shouldn't charge someone if we don't believe 
we are likely to get a conviction, if we don't believe the 
evidence is there. And if we don't believe we have good 
evidence of mens rea, we should not be charging an individual.
    We should not charge the little old lady in Switzerland who 
innocuously thought she was donating money to an organization 
that helps orphans. But if the same little old lady knew that 
the purpose of her money was ultimately to help someone 
accomplish a terrorist goal, we can properly charge her, we can 
properly prosecute her. And whether she is convicted or not 
depends on how the proof is given in the trial.
    Mr. Murphy of Pennsylvania. And I agree with that 
assessment, absolutely. If she knows that is where the money is 
going, we absolutely should prosecute her to the fullest extent 
of law. General?
    General Walker. I believe that we should consider intent or 
mens rea as we look at these crimes under the law of war, just 
as those elements have been traditional elements of the crimes 
under the law of war throughout history. We see--I see no 
reason we would differentiate now.
    Mr. Murphy of Pennsylvania. Thanks, General. And I see my 
time is up. I appreciate the time. Thank you, Mr. Chairman.
    Mr. Ortiz. Mr. Bartlett.
    Mr. Bartlett. Thank you very much.
    Gentlemen, are there world courts where these prisoners 
might be tried?
    General Walker. There could be--international tribunals 
would be a possible forum that could try these offenses. A good 
example of a similar tribunal would be the ITFY, the 
International Tribunal for Former Yugoslavia. That would have 
been a forum; I suppose still could be a forum. I am not aware 
of any standing body that could handle these cases.
    General Black. Nor am I, sir. I am not aware of any 
existing forum that has the jurisdiction to handle these cases.
    Mr. Bartlett. General Rives, you mentioned that we wanted 
the military commissions to be considered fair and creditable. 
I gather that you said that because they are not always 
considered fair and creditable.
    When you made that statement, I was reminded of the counsel 
that my mother gave me and your mother probably gave you: that 
you shouldn't borrow trouble. We have enough trouble without 
borrowing trouble.
    When I mention military commission or military tribunal--
and I have tried this a lot of times--when I mention that to 
one of my constituents, their reaction is always my reaction: a 
banana republic, a trial at midnight, execution at dawn.
    I voted against this act because I didn't think we needed 
to borrow that trouble. If these people need to be tried, there 
are international courts that can try them. And I don't know 
why we are doing this. We have enough trouble to deal with 
without borrowing this additional problem.
    General Rives. Well, interestingly, Mr. Bartlett, the 
trials at Nuremburg after World War II are often held up as the 
gold standard, when in fact if people dug into exactly what 
happened at Nuremburg, there was no specified standard of 
proof; the accused's presence was not even required; an accused 
did not have the right against self-incrimination. Evidence 
obtained from any source was admissible. The judgments were 
final. There was no right of appeal.
    At Nuremburg, many of the accused were prosecuted, and then 
the death penalty was executed within a matter of hours in some 
cases, no more than a few weeks in just about every case. So 
Nuremburg is not the gold standard.
    My point earlier about having fair military commissions is 
we also need to be concerned with how we explain the processes. 
And I agree with you that many people, when they hear military 
commissions, have bad thoughts. But when I have talked to 
people about the sort of rights that we have with the Military 
Commissions Act, and in the military commissions we have had--
the fair trials that really have been conducted under the 
guidance of well-trained, qualified, conscientious military 
judges--when they hear about all the rights that people have at 
the military commissions, they are sometimes very surprised 
that those are military commissions and it is a fair process.
    So we need to do a better job of being fully open, not 
trying to hide things except those things that are a matter of 
national security, and having transparent decision-making 
processes to the point, to the maximum extent, having full and 
open trials. And then the military commissions process can be 
seen as a fair process that it really is.
    Mr. Bartlett. In this arena of psychology and politics, 
perception is reality. And although it--I am sure that it is 
true that if we have a military commission trial, that it would 
not be conducted differently in Gitmo than it would be on the 
continental United States. But I will tell you, gentlemen, the 
perception would be very different about where it is conducted. 
If we are going to conduct those trials, we need to conduct 
them on the continental United States because the perception 
will be very different than if we conduct them in Gitmo.
    Thank you very much for your service. I want to tell you 
how proud I was of all of your uniformed lawyers. I am not 
always proud of lawyers. But I want to tell you how proud I was 
of your uniformed lawyers. Every one of them came and sat at 
that table you are sitting at and told us that civilized 
nations do not torture.
    Thank you very much for the quality of the people that work 
in your divisions. Thank you, and I yield back, Mr. Chairman.
    Mr. Ortiz. Dr. Snyder.
    Dr. Snyder. Thank you, Mr. Chairman. Thank you also for 
your service. I will add to Roscoe's comment. You are also 
darned good-looking, too, and we appreciate you--appreciate all 
you have done.
    I want to--I am going to pick up and just follow up on what 
Roscoe asked about with regard to perception, because you all I 
think generally have the belief that no matter where you do 
these commissions the way you all would like to have them done, 
it is a fair process whether it is in Guantanamo or here.
    Picking up on what you said, General Walker, I think I 
guess anyone who is a lawyer recognizes that judges come from a 
broad spectrum of backgrounds. Again, you know, sometimes you 
just get off-the-wall opinions that, I believe in your words, 
could increase the likelihood of finding constitutional rights 
here.
    There is a flip side of that though, too, isn't there, that 
gives the perception that Roscoe brought up: which is we do not 
want to be perceived as a nation that we are going to keep 
these people on a Caribbean island in order to deny them 
rights. I mean, that is the flip side of this.
    I would--I prefer the first view which is, no, we are going 
to treat them fairly. If a hurricane closes Guantanamo and they 
are swept to Miami for a weekend, we are giong to--they are 
going to have the same rights because we are treating them 
fairly everywhere. So I think that is the flip side of that.
    I want to ask this specific question. I will just show my 
Marine Corps background, I guess, and ask you, General Walker. 
Today in Guantanamo, if an inmate were to attack another inmate 
and kill them, what body of law would control the murder trial?
    General Walker. I am actually not certain of the answer to 
that.
    Dr. Snyder. Well, let's just leave it at that for today. 
Because--I mean--the issue is, would it be American criminal 
law or would it be--or if they, you know, stole money from you 
when you went down there to see them, what body of law would 
control? I would be--Let's take it as a question for the 
record.
    [The information referred to can be found in the Appendix 
beginning on page 65.]
    Dr. Snyder. I wanted to ask--a couple of you in your 
statements, you talk about one of the changes you would like to 
see is more of a duty for the prosecution to disclose 
exculpatory evidence. How did that get overlooked?
    I mean, how can a prosecutor sit there knowing they have 
got in their file a statement from--you know, I will just make 
some--you know--two eye witnesses said that a--you know--a 
perpetrator was three miles away at the time. How could a 
prosecutor not turn that over? How did that get overlooked? Was 
that an oversight by the Congress?
    Admiral MacDonald. Actually, sir, the prosecutors assigned 
to the Office of Military Commission are turning them over. 
That is the good news, is that despite the rule that was put in 
place in 2006 and 2007, the prosecutors have been doing that. 
This is simply codifying the practice that the prosecutors have 
been doing in the commission since 2006 when the Military 
Commissions Act was first enacted. So that is the good news.
    I think what this rule change does is it extends it now to 
an affirmative duty on the prosecutors to disclose mitigation 
evidence for sentencing purposes and also to disclose evidence 
that could be used to impeach a witness.
    Dr. Snyder. So you have had, what, three trials so far in 
the military commissions, and you all feel comfortable that 
that disclosure has been going on? Okay.
    The Ranking Member made some comment about you confronting 
the Administration or something. We have had a change in 
Administration, so I don't think there is going to be any 
payback here. But I did notice you all--I think three of you 
went out of your way to say this is your personal legal 
opinion. Is that just what lawyers do? Or is there some reason 
that you are--it is a complicated enough activity--you haven't 
done a group think on these comments. Is there anything magic 
about the fact that--we are not used to people putting that in 
their opening statements, that this is your personal legal 
opinion.
    General Walker is that--what is going on?
    General Walker. I think to a degree, that is what lawyers 
do. You always have to try a caveat. However, our specific 
invitation to the committee was to express our personal 
opinions on the modifications to the Military Commissions Act 
under the Senate bill.
    Dr. Snyder. And it is very helpful because this is a 
complicated area of law, and we appreciate your service and 
appreciate--Yes, Admiral?
    Admiral MacDonald. And, sir, you may remember that in 2006 
we were specifically invited up to testify before the House 
Armed Services Committee (HASC) and to give our personal 
opinion because we--much of our testimony was contradictory to 
the Administration positions. And so we take our duties 
seriously that, when you ask us to give our personal opinions, 
we will come up and we will tell you.
    Dr. Snyder. Thank you for your service. Thank you Mr. 
Chairman.
    Mr. McKeon. Will the gentleman yield? And they gave 
contradictory opinions and they are still here. That is a good 
thing. Thank you.
    The Chairman [presiding]. Mr. Forbes, please.
    Mr. Forbes. Thank you, Mr. Chairman. And, gentlemen, thank 
you for being here. And I apologize, I only have five minutes. 
So if I am short, it is not because I want to be rude; it is 
just because I want to get the questions in for you.
    One of the things that we always realize is if we are going 
to keep somebody from seeing the forest, the best way to do it 
is to drive them deep into the trees.
    When the American people hear all this debate, they hear 
some specificity but they don't see the big picture. I want to 
take you back to the big picture just a moment. And one of the 
parts of the big picture is we are not talking about purse 
snatchers here,--you know--we are not talking about bad check 
writers. We are talking about people, really, that could pose a 
threat to U.S. citizens.
    The Attorney General of the United States, Mr. Holder, 
testified before the Judiciary Committee and he said this: He 
said that in his office they receive a great deal of evidence 
or information about these detainees, these alleged terrorists. 
Some of this information is classified, obviously some is not. 
Some is hearsay, some is not.
    However, the Attorney General said this: If his office 
concluded that in the totality of that information it led to 
the conclusion that the detainee had a probability of harming a 
U.S. citizen, that the Attorney General would detain that 
individual even if he did not have enough admissible evidence 
in court to charge him and convict him of a crime.
    I am asking you, Admiral MacDonald, because you have used 
the standard of justice and fairness, is the Attorney General's 
standard, the testimony he made, does that meet a standard of 
justice and fairness?
    Admiral MacDonald. Yes, sir. And----
    Mr. Forbes. Alright. If that is the case--and you can talk 
in just a minute, but let me get this in. If that is the case, 
and we talked about perception here, if somebody were to spin 
that standard of justice and fairness and suggest it wasn't 
just and it wasn't fair, and the perception was that it wasn't 
just and fair, should the Attorney General change his position 
because the perception somehow or the other was out there that 
it wasn't?
    Admiral MacDonald. No. I don't believe he should.
    Mr. Forbes. If that is the case, then, one of the things 
that we forget sometimes here is that we are looking at a 
balance between prosecutors and defendants. We don't also talk 
about the difficulties prosecutors have when you are picking up 
and trying to get evidence in Afghanistan and other places. You 
don't always have the right to use search warrants to get the 
evidence that you want over there like you would here for a 
domestic trial, do you?
    Secondly, you don't have the ability to have grand juries 
to subpoena evidence in. You can't subpoena business records 
and other things when you are in foreign countries. So you have 
a difficulty in that balance of power already.
    The question I am going to ask you is this: Is there anyone 
who would disagree on our panel today that, if we held the 
commissions within the United States, that it would be more 
likely than not that it would shift the balance of power more 
towards the defendants than the prosecutors?
    Nobody answers that. I am--Yes, sir?
    General Rives. I would disagree that it would shift the 
balance just because we shifted the location of the military 
commissions. If they are military commissions----
    Mr. Forbes. You don't think they would have more rights 
because they were in the United States than if they were held 
elsewhere?
    General Rives. I don't believe they have any more rights 
under the military commissions, wherever they are prosecuted.
    Mr. Forbes. Wherever they are prosecuted. Does anyone 
disagree with that? Was it your testimony that they could 
probably have more rights if they were geographically in the 
United States?
    General Rives. I testified there would be an argument they 
would have more rights.
    General Walker. I agree with General Rives that, as a legal 
proposition, they would not automatically be extended more 
rights. However, it is my opinion that there is a greater 
likelihood that a particular court or jurisdiction could choose 
to extend greater rights.
    Mr. Forbes. Let me ask you this. If we use Article III 
courts versus commissions, would it be more likely that they 
would have more rights for the defendants than for the 
prosecutors?
    General Walker. Yes.
    Mr. Forbes. That would shift it. You have testified that 
you did not oppose the Article III courts of the commissions. 
But does anyone there favor a preference for Article III 
courts?
    I take it the answer is no.
    If we adopt the Administration's recommendation regarding 
detainee statements, the voluntariness standards, would that be 
a shift in power to the defendant or to the prosecutor?
    Admiral MacDonald. To the defendant.
    Mr. Forbes. Does anyone disagree with Admiral MacDonald's 
testimony? Everybody is shaking their head no.
    If we do not try those offering material support for 
terrorism in military commissions, but rather do so in a 
criminal court, wouldn't that make it more difficult for us to 
get convictions for those individuals as well? Anybody?
    General Rives. If we did it in an Article III court, in 
Federal court? Any prosecution in an Article III court could be 
more difficult, because we are talking about evidence that was 
obtained on the battlefield and not by law enforcement 
authorities.
    Mr. Forbes. And the last question I have, if I have time to 
get it in. The Administration has proposed to drop material 
support for terrorism from the list of offenses triable by 
military commissions. Do you agree with the Administration's 
position?
    Admiral MacDonald. No.
    General Black. No, sir.
    General Rives. No.
    General Walker. No.
    Mr. Forbes. No one agrees with that. Mr. Chairman, with 
that, I yield back the balance of my time.
    The Chairman. I thank the gentleman from Virginia.
    Before I call on the gentleman from Georgia, let me ask 
this simple question of each of you. Looking at the law as it 
exists today, if you were to make one change or one correction, 
what would you do? Starting with you, General.
    General Black. I would go after the voluntariness issue, 
sir, with respect to the admission of statements. I believe 
that we ought to adopt a reliability standard with 
voluntariness as a factor to be considered in the totality of 
the circumstances by the trier of fact, the judge.
    The Chairman. Admiral.
    Admiral MacDonald. Sir, I would bring in the Classified 
Information Procedures Act into the SASC bill as the standard 
by which classified evidence is determined, whether or not it 
is going to be introduced in a military commission.
    The Chairman. General.
    General Rives. I agree with Admiral MacDonald that the most 
important reform we need to make is to clarify the rules and 
strengthen the rules for handling classified information. And 
it ought to be similar to the rules for the Classified 
Information Procedures Act.
    The Chairman. General.
    General Walker. Mr. Chairman, the land forces stand 
together. I concur with General Black that we need to first 
modify the standard for admission of the hearsay evidence from 
voluntariness to reliability, plus consideration of the 
exigencies of the military battlefield.
    The Chairman. Thank you. Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    And, gentlemen, I want you to know that I appreciate your 
service and I consider that all of you are men of justice. And 
we could disagree sometimes as to what that means, but I 
certainly respect your intent to be respectful of our 
Constitution and the great traditions of a civilized society.
    And what I would like to know is: What is the statute of 
limitations on a crime committed on the battlefield for which 
an individual could be prosecuted?
    General Rives. There is not one under the law of war.
    Mr. Johnson. So a detainee could be held indefinitely, even 
for life, for 20, 30 years, without being charged and without 
being tried?
    Admiral MacDonald. Congressman, we need to distinguish, 
though, between the power to detain under the law of war and 
the power to prosecute. Those are two separate and distinct 
powers that nations have when they go to war.
    Mr. Johnson. I understand, and I am just simply trying to 
find out the practical impact of our military commissions setup 
as is proposed in the Senate.
    Also, why is it that the reliability standard should be 
used as opposed to a voluntariness standard for admissions 
against interest, if you will?
    Admiral MacDonald. Congressman, it has to go with the 
different circumstances under which statements are taken. So, 
for example, our position is that in the heat of battle when a 
soldier breaks down a door and, at the point of a rifle, 
extracts a statement from a detainee, that that is an 
inherently coercive environment. And if you have a 
voluntariness standard, the likelihood, that if that is 
applied, that a judge would find that that statement was 
involuntary is great.
    Mr. Johnson. I don't think that even in civilian courts 
that a statement made at the time of a person's arrest, that 
was spontaneous and voluntary, would be excluded as evidence. 
And so I think the same standard would probably be the same in 
a military tribunal.
    But the bottom line is, you know--I don't think I have 
gotten an answer to the question yet. What is wrong with 
applying a voluntariness standard as opposed to a reliability 
standard? And with respect to reliability, how can you 
determine the quality of hearsay evidence that is admissible 
against--in accordance with the Senate version here?
    General Rives. Congressman, on the substantial question, I 
believe reliability is the better test.
    Mr. Johnson. Why?
    General Rives. Because it effectively balances fair 
treatment of the accused with the exigencies of the 
battlefield. The reliability of a statement will depend on the 
totality of the circumstances. Voluntariness is one of those 
standards.
    But I would emphasize that the pressure of the battlefield 
could make any statement involuntary. If you consider, for 
example, that ten soldiers in full battle gear, armed with M-
16s, confront a person and ask about the location of a hidden 
improvised explosive device, his statement proves to be 
reliable. But is it voluntary? That is the issue.
    General Black. Sir, if I might add something. This past 
Saturday morning I happened to have the opportunity to sit down 
with a young judge advocate who was advising a Special 
Operations team in Afghanistan. I talked to him in Bagram this 
past Saturday morning and I asked him that very question: 
Voluntariness or reliability? Which way should we go on this? 
Because we are talking about it now. And his quotes--and I will 
give it to you straight up:
    ``Our mission on the site of capture is information 
exploitation. Exploitation and prosecution do not mix. Imposing 
a voluntariness standard would disrupt our mission. Tactical 
site exploitation interrogations are perhaps our most important 
results in terms of continuing success in this fight.''
    So his position was reliability, but with voluntariness as 
a factor to be considered. And you can almost consider it as a 
sliding scale, sir. The greater the government intrusion, if 
you follow the analogy of the Fifth and 14th Amendment 
analysis.
    Mr. Johnson. Okay. Thank you. And could someone answer the 
question about the level or the quality of the hearsay that 
could be admissible or that would be admissible against an 
accused?
    General Rives. It will be fact-specific and determined by 
the military judge. I very much appreciate the fact that the 
rules have evolved for military commissions where the military 
judges, who are very experienced and are picked for their 
independence, judgment, discretion, and experience, are able to 
make this sort of decision.
    It is hard to give--it is impossible to give a blanket rule 
that would fit in every occasion, but I can say that based on 
the facts of the case, I trust the judgment of our trial judges 
in these sort of cases.
    Mr. Johnson. Thank you all.
    The Chairman. I thank the gentleman.
    Before I call on Mr. Coffman, let me ask this question of 
the Admiral. How would you define ``proximate to the 
battlefield''?
    Admiral MacDonald. Actually, sir, that is--this is exactly 
the discussion that we are having with the Administration after 
the SASC hearing last week. The Administration favors a 
voluntariness standard with a battlefield exception. I think we 
go at it the other way: A reliability standard, taking 
voluntariness as one of a number of factors that you would 
weigh and balance, a judge would weigh and balance, in 
determining whether or not the statement was ultimately 
reliable.
    We are pretty close. Over the last week we have been 
working on, as General Black said, kind of this sliding scale. 
And I think at this point we would assess it this way: The 
closer you are to the battlefield, the more that voluntariness 
would recede and you would look at the kind of indicia of 
reliability of the statement itself. At some point, though, as 
you take the detainee off the battlefield and as you put them 
into a confinement facility, then the nature of the 
interrogation changes.
    So you go from this tactical interrogation that General 
Black talked about on the battlefield in Afghanistan, you move 
away from the intelligence interrogations that go on, and at 
some point you are starting to look at exploitation, getting 
statements for prosecution. At that point, I think we all agree 
that voluntariness should be the standard at that point.
    So all of these detainees at Guantanamo right now, all 
their statements ought to be evaluated under a voluntariness 
standard, because they have been removed from the exigencies of 
the battlefield. But we are pretty close and working with the 
Administration on that test.
    The Chairman. I thank the gentleman. I did not see Mr. 
Rooney, Mr. Coffman. So we will call on Mr. Rooney first for 
five minutes.
    Mr. Rooney. Thank you, Mr. Chairman.
    Thank you all for your service and your leadership. And as 
far as what former Captain Murphy had to say earlier, all I 
have to say is first team to that.
    I wanted to go into two sort of separate areas. I have a 
question, but I want to start with a follow-up to something 
that I think Congressman Forbes was raising, but also that 
Admiral McDonald and General Black--I am a little confused with 
something that was said before.
    When you were talking about, Admiral, the commissions could 
be properly held in the United States, I was getting the gist 
from you that it insulated from outside distractions. In fact, 
we had a United States citizen that was brought to the United 
States and successfully prosecuted in a commissions setting, a 
case involving an actual U.S. citizen. So, therefore, when we 
bring noncitizens from Guantanamo to the United States, we 
should be able to do it as well.
    However, then General Black, I think, made the statement 
that depending on the forum, extra-constitutional protections 
beyond habeas corpus, from the court's ruling--you know, Fifth 
Amendment due process rights and the like--may attach, 
depending on which court they get or which district they get or 
whatever the circumstance may be.
    So I don't know if I am seeing a sort of--can we be--and 
the reason I ask this is because, again, like Congressman 
Forbes said, from a 30,000-foot view, my constituents in the 
16th District of Florida are going to be very concerned about 
us bringing detainees from Guantanamo to the United States. So 
I have to look them in the eye and say the judge advocates are 
sure that we are going to be able to do this in a way that is 
not going to give them the same rights as American citizens, 
that they are not basically de facto constitutionally protected 
American citizens. Because in their eyes, or in at least some 
of them, you know, they are terrorists, so to speak.
    So can you try to for me--are they going to get extra-
constitutional rights, or are we going to be able to insulate 
them in a commission?
    Admiral MacDonald. Sir, in my opinion, they are going to 
get due process, but they are going to get due process as 
informed by the law of war. And, so that we need to look to the 
law of war over time, and we also look to international 
tribunals, like General Walker talked about--the International 
Criminal Tribunal for Rwanda and for Yugoslavia--to look for 
that body of law, those rights, that we would bring into the 
commissions process.
    We have done that analysis. We have looked at the military 
commissions rules. We have looked at the amendment that the 
Senate--or the bill that the Senate has proposed. And we 
believe that it satisfies the due process concerns as informed 
by the law of war.
    Now, I believe there is some disagreement, and I think the 
Administration may have a different opinion, but our opinion is 
the law of war is the body of law you look to to inform what 
process is due to a detainee, whether in Guantanamo or in the 
United States.
    Mr. Rooney. And I am confident that you are correct. My 
concern is that you are also correct, if I think--if I get the 
gist of what you are saying, that from there we don't know what 
is going to happen, because it is very rare to say we are 
bringing a noncitizen into this country and we are giving them 
all the constitutional rights in court. We are going through 
uncharted territories.
    Am I confident that you guys are going to get it right? 
Yes. But after that, where are we going to go? That is what I 
am a little afraid of. Go ahead.
    I just want to really quick, because my time is, 
unfortunately, limited. One of the things you talked about, 
voluntariness. I completely understand your statements with 
regard to voluntariness and the classified information, but 
what I want to get into is classified information.
    One of the things that I am concerned about is when we have 
detainees, we get evidence from them. A lot of times the 
evidence may have been gotten from a source or somebody who is 
a clandestine agent, so to speak, or the like.
    And I am a little concerned about when we have this 
evidence that is classified or protected. What protections or 
procedures do you feel are best under the act, or changing the 
act to move forward with regard to making sure that if we have 
sources in foreign lands that are helping us, that we are not 
putting them in jeopardy? And also whether or not this 
information you all talked about, the Classified Information 
Procedures Act--could you just go into that briefly? Go ahead.
    Admiral MacDonald. It does--the CIPA has--first of all, 
Congressman, CIPA has been around for a while, a long time. 
There is about 20 years' worth of case law that go with CIPA. 
It has been used in Federal court very successfully. That is 
one of the reasons why we want to--we are recommending to bring 
it into the Military Commissions Act.
    When the Military Commissions Act was passed in 2006, we 
testified about Military Rule of Evidence 505, which is the 
military analog to CIPA. It hasn't worked well over the last 
two to three years. The reason? There is not a robust body of 
case law that goes with MRE 505; there is with CIPA. And it has 
procedures to address your concern, which is the protection of 
sources and methods for gathering statements.
    But at the end of the day, the judge is going to have to 
rule on whether or not a detainee is entitled to get the 
sources and methods. And then, as we testified in 2006, it is 
ultimately going to be up to the government, to the United 
States, to say that they want to proceed with a commission and 
introduce and disclose sources and methods or forego it. That 
is how CIPA would operate in that context.
    The Chairman. I thank the gentleman. The time has expired.
    Mr. Ellsworth.
    Mr. Ellsworth. Thank you, Mr. Chairman. Thank you, 
gentlemen.
    I am sitting here thinking, after 25 years in local law 
enforcement, I was wishing I could claim battlefield 
circumstances in some of our interrogations; unfortunately, we 
couldn't get away with that.
    But, I have a real quick question, and then I am going to 
defer to Mr. Kratovil. And, Mr. Forbes, thank you; I like the 
rapid-fire questions. We get a lot more answered in a short 
amount of time.
    Are there cases and circumstances--I know you prefer the 
military commission. But are there cases you can think of, 
where Article III is preferred or would be appropriate at any 
time in these proceedings, that you would say this ought to be 
an Article III in the circumstance that we are talking about? 
Does that make sense?
    General Black. I can't think of a particular hypothetical 
right now, but I don't want to foreclose the opportunity 
either. Article III courts are another tool that we can use.
    Mr. Ellsworth. And with that, that is the only question I 
had. I will give Mr. Kratovil the rest of my time.
    Mr. Kratovil. Thank you. Gentlemen, forgive me; I am a 
former State prosecutor and am not as familiar, obviously, with 
the military forms of justice that we are talking about. But I 
do have a few questions for you.
    My first question is: Is it the position of all of you that 
individuals that are detained at Guantanamo Bay right now could 
be detained indefinitely without a finding under any of these 
possible sources--commission, Article III, or a civilian court? 
Could they remain indefinitely without having any finding?
    Admiral MacDonald. Yes, sir.
    General Black. Yes, sir.
    Mr. Kratovil. Okay.
    General Walker. With, I think, the exception, sir, that the 
``indefinitely'' means, under international law and the law of 
war, for the duration of the conflict. So it is not truly 
indefinitely.
    Mr. Kratovil. Okay. At what point do we establish some 
standard of proof to continue detention based on the decision 
to take them before one of these--either the commission or the 
Article III?
    Admiral MacDonald. Yes, sir. If a detainee was taken to a 
military commission, and let's assume that at that commission 
the detainee was acquitted. If the United States continued to 
believe that that detainee posed a serious threat to the 
security of the United States, the detainee could be put back 
into detention. And that is the difference that I was pointing 
out earlier, the difference between the power to detain and the 
power to prosecute. But there would be a process following 
that, and it would be habeas.
    Mr. Kratovil. Okay. What--ultimately, what is the purpose 
of bringing these individuals before either the commission, 
Article III, or a Federal civilian court? Ultimately, what is 
the purpose?
    General Walker. Punishment for specific crimes as opposed 
to detention as a national security threat.
    Mr. Kratovil. Okay. Is it punishment? We are jumping to 
punishment? Or is there some need to determine whether or not, 
in fact, they have committed what they are bringing-- brought 
before those bodies?
    General Rives. It is both. We should prosecute to determine 
whether we can prove guilt beyond a reasonable doubt; and if 
so, we apply an appropriate punishment. And the separate 
question that we have discussed is whether the person should 
continue to be detained. Ultimately, that is a policy call. We 
do have to establish fair procedures to periodically review the 
propriety of continued detention.
    Mr. Kratovil. Alright. So it is fair enough to say that the 
purpose of them is to, in a sense, determine the truth as to 
the allegations.
    What is the danger in allowing either involuntary or--well, 
involuntary statements or unreliable statements?
    General Rives. Number one, you would--you are more likely 
to get an unjust result. And most importantly, we are concerned 
about reciprocity; how would we want our soldiers, sailors, 
airmen, and marines to be prosecuted if held by a foreign 
authority? The Military Commissions Act provides for a fair 
process that I would be comfortable with our people being 
prosecuted under.
    Mr. Kratovil. Okay. By the way, the discussion that you are 
having, I was about to ask about the distinction you were 
making in reliability versus voluntariness. And based on the 
discussion that you had with the Chairman, to me that sounds 
like a very reasonable compromise where you are saying that 
voluntariness should be used in a situation after detention, 
where you don't clearly have the issue of, really, battlefield; 
whereas using the reliability when you are talking about other 
factors that obviously are not similar to a criminal-type of 
interrogation. So to me that sounds like a very reasonable 
compromise and I salute you for it.
    And let me say this. We are obviously having all of these 
discussions, because it does not get any more complicated than 
trying to determine how best to deal with individuals that we 
suspect are involved, but aren't necessarily at a point of 
having proof that we would have in our--in typically under 
normal prosecution. It is a very difficult balance, and I 
salute you for trying to find it.
    The Chairman. At last, Mr. Coffman.
    Mr. Coffman. Thank you, Mr. Chairman.
    Thank you all for your service. I was not in the JAG Corps; 
I expect lower test scores and a tremendous threshold for pain. 
I was an infantry officer in the United States Marine Corps.
    Let me express a concern that I think there is some fantasy 
that we are not a Nation at war. We are a Nation at war, and we 
are fighting irregular forces bound by an ideology who often 
use terrorism as a tactic. And I guess it has been redefined as 
a man-caused disaster, and we are not involved in the global 
war on terror, but I believe it is called ``overseas 
contingency operations.''
    But, there seems to be--we ought to look at the--you know--
we're--there is now a view that this is a criminal justice 
issue. And it would seem that combatants who are plucked off 
the battlefield, that there are--one is, did they in fact 
violate the law of random warfare? Are they war criminals? And 
the other one is the fact that they are combatants, and they 
ought to be detained until this war is over.
    And we have released those that have been detained--plucked 
off the battlefield, detained, that have returned to the 
battlefield to kill Americans. This is a failed system, and I 
want you all to comment on this.
    General Walker. Congressman, I believe there are two issues 
that come into play there.
    The first, again as we have mentioned, is the detention 
process as opposed to the military commissions process where 
individuals would be potentially prosecuted and held 
accountable for their actions. That is the balance of trying to 
achieve balance of accountability for the law of war and 
violations of the law of war, and, at the same time, maintain 
those standards of justice.
    The individuals--there is, to my knowledge, some evidence 
of individuals who have been released from Guantanamo and 
returned to the battlefield. But our testimony today, what we 
were focusing on, or attempt to focus more, was the military 
commissions when we are actually bringing the individuals to 
their responsibility; which is at, of course, a later point in 
time.
    General Rives. Congressman, I would say we are holding the 
detainees because they are belligerents and because they are 
active participants in the current conflict against the United 
States and our coalition partners. We need to continue to hold 
them until we are convinced they are no longer a threat to us.
    Admiral MacDonald. And Congressman, as you said, the law 
enforcement model does not work in this instance. That is why, 
in terms of prosecutions and in terms of detention, we look to 
the law of war, because it gives us the power to do both.
    General Black. We can't be one-sided on this, sir. We have 
to apply the rule of law evenly and fairly across the board. 
And I certainly understand your perspective and your viewpoint.
    And as a soldier and as the father of a soldier who is 
currently serving in Iraq, I share your concerns in many 
respects. But again the even-handed application of the rule of 
law has to be at the forefront of our national policy in my 
view. And I believe that we execute our responsibilities pretty 
darn good.
    Is the system perfect? No, sir. And as you have noted, 
there have been detainees who have returned to the battlefield. 
But I think, by and large, it is a system that is managed by 
men and women of good character and good heart, who are trying 
to do the very best they can to do what is right every single 
time, and to keep our Nation's best interests and the rule of 
law at the forefront.
    Mr. Coffman. Thank you for your testimony, gentlemen. And 
again I would stress that terrorism, and that our enemies are 
fighting us, and this is--we are engaged in a war. And I don't 
think that that is the view of this Administration, but it is 
certainly my view.
    I yield back the balance of my time.
    The Chairman. I thank the gentleman.
    Mr. Kratovil, you were next on the list. Do you wish to use 
your time?
    Mr. Kratovil. No.
    The Chairman. The gentleman yields back.
    In that event, it appears, Mr. Larsen.
    Mr. Larsen. Thank you, Mr. Chairman. Just a few questions 
to clarify some things for me.
    I remember being here in 2006 and getting the MCA put 
together. And I think we made a lot of errors in putting the 
MCA together, which got us to today and barely got us through 
the last three years of implementing the MCA.
    But, I am not an attorney, but of course over the last 
couple of years I have been able to try to at least get up to 
speed on some of the concepts that we have struggled with to 
create a system that can apply for detainees.
    And I have a very general question to start--and a yes or 
no might be appropriate, I will let you all decide. But in your 
view, have we prosecuted and convicted detainees to the point 
that Americans have got the justice that we deserve?
    There is all this talk about, you know, should, you know, 
all these rights that we might give to terrorists. I don't--I 
am not concerned about that. I am more concerned about the 
justice for the victims of 9/11, justice for Americans in this 
process. Have we prosecuted and convicted detainees to the 
point where we can say that we got the justice we deserve?
    General Black. My view, sir, no. We have been mired. This 
has been a time-consuming and extraordinarily lengthy process. 
The best thing we can do for the American people and for the 
detainees is to move the process forward, get these rules put 
into effect and get the process moving.
    Admiral MacDonald. Congressman, in--when I talked about the 
Classified Information Procedures Act, many of these cases, if 
not all of them, involve classified evidence. The trial teams 
will tell you that they have been mired down because they don't 
have a set of procedures that are rational, that make sense, 
and that can move the process along.
    And that is why I think General Rives and I kind of focused 
on CIPA as an important aspect of improving the Military 
Commissions Act because it will do just that; it will speed the 
prosecutions that are going to take place under this act.
    General Rives. Congressman, my answer to your question is 
no. And the brief reason why not is the process for the current 
military commissions was set in motion by executive order on 
November 13, 2001. We have only had three complete prosecutions 
under it.
    If Americans were getting justice, we would have had a 
process that had a greater sense of urgency, emphasis on 
fairness, and procedures that are respected in the 
international community. But we should have had more 
prosecutions before now.
    General Walker. I concur that justice delayed is rarely 
justice served. And I think the speed of prosecutions will help 
everything. That is what we hope some of these changes to the 
Military Commissions Act will enable us to do.
    I can say that there has been greater progress of late than 
in the first couple of years under the Military Commissions 
Act, and I am hopeful we can continue that momentum.
    Mr. Larsen. Another generalized question here. On June 12 
of last year, in a 5-4 decision, the Supreme Court rejected the 
view--well, they held that detainees being held at Guantanamo 
have a habeas corpus privilege under the suspension clause of 
the Constitution. And the Court also held that section 7 of the 
MCA is an unconstitutional suspension of right, because its 
procedures to review the status of detainees are not an 
adequate and effective substitute for habeas corpus.
    There have been comments here by a lot of good folks on the 
committee and in Congress that the remaining detainees being 
held at Guantanamo are in fact dangerous. Given that 5-4 
decision last year and these statements, can we say that each 
and every one of the detainees that is there is dangerous, does 
belong there, is rightfully there, and ought to be prosecuted? 
Do we actually know that?
    General Black. Sir, we can say that each of the detainees 
that is currently at Guantanamo, they have all been the subject 
of a combatant status review tribunal that looked at the 
circumstances of their capture and all the facts and 
circumstances surrounding their background and has made a 
determination that they should be retained in custody.
    So without specific cases and specific knowledge, I can't 
go any further than that.
    Admiral MacDonald. And, Congressman, that is exactly what 
the President set up with these task forces on January 22. One 
of them was to do just that, is to look at all of the detainees 
at Guantanamo and sort them--those that would be continued in 
detention because they continue to pose a threat to our 
national security, and those that have committed crimes such 
that they need to go before a commission.
    Mr. Larsen. Fair enough. Thank you.
    The Chairman. I thank the gentleman.
    The gentleman from Texas, Mr. Conaway.
    Mr. Conaway. Thank you, Mr. Chairman, I appreciate that. 
Gentlemen, thank you for being with us today.
    Admiral MacDonald, you have talked a couple of times--at 
least asserted--that the handling of classified information 
under the existing structure is flawed. Could you articulate 
for us something other than just that assertion, and also give 
us some examples of where prosecutors have not been able to 
introduce evidence that they would have been able to introduce 
under your scheme?
    Admiral MacDonald. Congressman, in talking to a number of 
the prosecutors, under the current scheme in the MCA, they are 
having to submit written declarations to the court, the 
military judges, and they are not able to take part in ex parte 
hearings that a Federal prosecutor can get under CIPA.
    This has really, in their opinion, bogged down the process 
because the judge is asking them to put it in writing. The 
judge then has to review these written submissions, respond 
back. There is additional work that needs to be done. There is 
a lot of back-and-forth that has been going on.
    Mr. Conaway. Okay. So it really is a timing issue as 
opposed to us not being able to make the decision you talked 
about earlier, that we either disclose sources and methods or 
we walk away from prosecution. That hasn't happened under this 
current scheme, it is just a matter of how much time it is 
taking to get from point A to point B; is that the gist?
    Admiral MacDonald. Yes, sir. They are saying it is a more 
efficient system under CIPA.
    Mr. Conaway. But still protects the classified information 
completely.
    Admiral MacDonald. Yes, sir, it does.
    Mr. Conaway. Just an editorial comment. Well, first off, is 
there a bright line on the definition of--and General Rives, 
you said cruel, inhuman and degrading treatment. Is there a 
spectacularly bright line for that definition?
    General Rives. No, there is not.
    Mr. Conaway. Okay. So every court is going to have to 
decide for themselves.
    General Rives. Yes.
    Mr. Conaway. Okay. Who sets the international standards you 
have been holding us accountable to? Each one of you have 
mentioned international standards for whatever. Who set those 
standards? Did we have a role in helping set those standards?
    Admiral MacDonald. Well, Congressman, I would say on the 
international criminal tribunals that we talked about, the 
United States has supported those tribunals and the rules that 
are in effect in those tribunals.
    Mr. Conaway. So that is collectively? Every time you have 
mentioned international standards, that is the standard which 
you refer to?
    Admiral MacDonald. And then there are other standards that 
have come up through the law of war over the years.
    Mr. Conaway. And did we as Americans participate in those 
developments?
    Admiral MacDonald. Yes, sir.
    Mr. Conaway. Okay. Are there instances--are there other 
instances where we disagreed with those international standards 
because they don't believe--we don't believe they protect our 
interests properly, and made a conscious choice to do something 
different than those standards? Just think about that. If you 
get by with an answer, that is fine.
    I am going to yield the rest of my time to my colleague 
from Virginia, Randy Forbes. But we ought to do what is right, 
what respects law, what is respectful for law and order and all 
those kinds of things, just because that is the right way to do 
it.
    I am unpersuaded, each time each one of you said it, that 
we only do that or that one of the reasons to do that is 
because we want to expect our soldiers, and sailors, and 
marines and airmen to be treated that way from other countries. 
I can't imagine another country is going to raise their 
standards because of that. We ought to do it just because it is 
the right thing to do.
    With that, Mr. Chairman, I yield back to--I yield the rest 
of my time to Mr. Forbes.
    Mr. Forbes. General Black, you mentioned in response to 
Congressman Coffman that we need to apply the law and we need 
to do that evenly. But I just want to point out, that is what 
we are doing right now. We are writing the law. And whatever we 
write is what we are going to be applying. That is why 
Congressman Coffman asked that question, because we need to 
write it correctly.
    Also, the task force. Admiral MacDonald mentioned that the 
Justice Department has been looking at these tribunals. There 
was a memorandum on May 4 where, as you know, the Assistant 
Attorney General said that there was a serious risk that 
Federal courts would adopt a constitutional due process 
approach when evaluating military commission tribunals if they 
were brought to the United States. And the Zabadas case--as all 
of you, I know, can quote backwards and forwards--says it is 
well established that certain constitutional protections 
available to persons inside the United States are unavailable 
to aliens outside of our geographical borders, but once an 
alien enters the country the legal circumstances change.
    I would ask if there is not a single one of you that, if 
you were defending one of these detainees, wouldn't use this as 
a precedent, if they were here, to say full constitutional 
protections applied once they entered U.S. soil.
    And also if you were prosecuting a case outside of U.S. 
soil, if you wouldn't use this as precedent to simply say, no, 
there is a difference because look at this case. And my good 
friend, Mr. Larsen, raised the Boumediene case, but that only 
applied to habeas corpus. It didn't apply to all of the others.
    If any of you disagree with what I have said, please 
respond to that. I only have got a few seconds.
    I take that as an agreement, and I yield back my time, Mr. 
Chairman.
    The Chairman. That is one way to get an answer.
    Dr. Snyder. Mr. Chairman, I would like to hear them amplify 
on--I mean, that is a complicated, fairly hurried question 
there. I would suspect that they----
    Mr. Forbes. Mr. Chairman, I didn't want to cut them off, 
but I only had----
    The Chairman. Dr. Snyder, we don't have time for that. 
Thank you.
    Would you like to comment further?
    Mr. Forbes. No, Mr. Chairman.
    The Chairman. Mr. Murphy, you are next on my list. Have you 
not claimed your time? Go ahead.
    Mr. Murphy of Pennsylvania. Thank you, Mr. Chairman. Mr. 
Forbes, I would just like to say there is no one on this side 
of the aisle that I am aware of, or in this Administration, 
that is making the argument that detainees captured on the 
battlefield, whether it is in Iraq or Afghanistan, should get 
the same constitutional rights as Americans.
    Now, if you were going to get tried in a commission, a 
military commission under the MCA, and the MCA that is going to 
be revised by this Congress of the United States and signed 
into law, hopefully, by the President as soon as possible, then 
you get some rights under international law, which we did sign 
in past Administrations. But if you are an American, you get a 
whole heck of a lot more constitutional rights.
    But I would just say that one of those constitutional 
rights that we are given on that as an argument is that we are 
giving them the right to counsel.
    Mr. Forbes. Would the gentleman yield?
    Mr. Murphy of Pennsylvania. I would yield to you.
    Mr. Forbes. And I would tell my good friend that I am not 
suggesting that you would argue that. What I am saying is that 
the current Attorney General's Office has warned the 
commissions, if you have the commissions here--the task force 
that is looking at a commission--if you bring the commissions 
here, there is a serious risk that, regardless of what any of 
us want, those full constitutional protections could be 
applied.
    And if you look at the Zabadas case, it certainly makes a 
big distinction when you bring them to U.S. soil versus keeping 
them outside. And my only purpose was to say we may have good 
intentions not to do it, but once we bring them here, they may 
be out of our hands. And I yield back.
    Mr. Murphy of Pennsylvania. And I will take back my time.
    I think that the legal interpretation as I read it, in 
reading the same case and the same opinion by the Attorney 
General of the United States, is saying that they are granted--
if you do bring them under the soil of our country, that they 
would get habeas corpus, which is not the same as having the 
whole spectrum of constitutional rights. And so, you know, we 
could agree to probably disagree on that point.
    And I would also like to mention, you know, Mr. Conaway, 
that these are previous Administrations that we signed under 
the Geneva and Hague Conventions and really stood on what the 
values of the United States of America is. And we have 
disagreed with our colleagues across the oceans over in Europe. 
We did not sign an International Criminal Court because it 
basically said you won't defer to our courts or our courts 
martial. And that if we are going to have a court martial, we 
want to try our soldiers for committing crimes even, if they 
are overseas, and we don't want to defer to the ICC, the 
International Criminal Court.
    So there are times when we disagree with our allies across 
the river, and that is a healthy debate. But they respect our 
opinion because they actually respect what we get done in 
military justice via the UCMJ. So I just want to make sure that 
we are making these distinctions.
    And I would also like to say to my colleague, Mr. Coffman--
and, sir, I do absolutely respect your service. I would just 
say that there is no one on this side of the aisle that is 
trying to get our soldiers in the battlefield, these American 
heroes that are keeping our families safe in Iraq and 
Afghanistan, that are trying to make them cops, that are trying 
to say that they get Miranda rights, or they get an attorney on 
the battlefield or we have to--no one is saying that. But we 
are saying that they should get a fair shake in a sense that we 
just can't capture hundreds of people, wherever they are, and 
just say we are going to lock you up in Guantanamo and throw 
away the key.
    Mr. Conaway. Will the gentleman yield for a comment?
    Mr. Murphy of Pennsylvania. Absolutely, Mr. Conaway.
    Mr. Conaway. The Global Initiative is in fact attempting to 
Mirandize folks across.
    Mr. Murphy of Pennsylvania. Mr. Conaway, we argue--we both 
serve on the Intelligence Committee, we have had this argument. 
I would say that that has been radically blown out of----
    Mr. Conaway. I am just commenting. You said they weren't 
doing that, and this Administration is doing that.
    Mr. Murphy of Pennsylvania. Well, I would say that. And Mr. 
Conaway, that we have made it clear that that is not the 
intent. And that is not my intent, and that will not happen as 
long as I am breathing on this Earth, that will not happen. 
With the best of my ability; I am not the President of the 
United States. So I can't say. And I will yeild back.
    Mr. Conaway. Are you a dictator? I am not sure you have the 
authority to make that statement.
    Mr. Murphy of Pennsylvania. Well now--all I am saying is 
that we need to put this in proper perspective. You know we are 
losing--we are doing our best to earn hearts and minds and 
capture and kill al Qaeda wherever they are roaming on this 
Earth, and we need to continue to do so. But that does not 
mean, and no one is suggesting here that that means we are 
going to start reading them Miranda rights and that means that 
we are going to give them an attorney when we capture them when 
we are fighting in Kabul--when we are fighting--.
    You can snicker and you can laugh, but that is not what we 
are asking for. What we are asking for is proper justice under 
what we have asked other countries to do in the Geneva and 
Hague Conventions. And these servants, these men who wear the 
cloth of our country, are trying to do the best that they can 
and advise us.
    And so I do want to salute all of you. I know this is not 
easy. I know, frankly, when I was in Baghdad and we lost 
soldiers, I wanted to go out and ring some people by their neck 
and kill them myself with my own hands. And, frankly, I still 
want to do that. But at the end of the day--and we have men and 
women that still do that.
    But we need to make sure that when we bring them to a 
court, whether it is a criminal court, a military commission 
or--and again, we are asking and arguing that it should be a 
military commission for these folks, not an Article III, 
meaning the same courts that we use in America. A commission, a 
military commission court. That there are some standards that 
we still must abide by, that we agree to, and we must have 
fidelity to those commitments.
    And I yield back the balance of my time.
    The Chairman. I thank the gentleman for his comments.
    It appears that Ms. Fallin is the last one on the list. 
Please proceed.
    Ms. Fallin. Thank you, Mr. Chairman. This discussion is 
very interesting and very passionate, too.
    When questioned by the Senate Repub--Senators at the Senate 
Armed Services Committee at a July 7 hearing, Administration 
officials said they believe detainees had some constitutional 
rights in addition to the habeas corpus, but could not 
articulate which ones or why they deserve constitutional 
protections. And since we are already talking about this, I was 
just curious if you could expand upon that particular comment 
back from the Senate hearings on July 7.
    Admiral MacDonald. Well, ma'am, I was at the hearing, and I 
would disagree with that. Again, I think it depends on what 
model you are using to analyze what rights are due. We would 
look to the law of war. And we believe that under the law of 
war, the process that is due is contained in the Military 
Commissions Act as improved by the SASC language in there. I 
think the Administration disagrees with that or they believe 
that the law is unsettled on that and that there is, as was 
pointed out, there is risk associated with bringing them here.
    General Black. I might add, ma'am, that the 2006 Military 
Commissions Act and the Senate bill that you are currently 
considering both contain rights and privileges that are almost 
identical--indeed, are identical--to privileges and rights that 
are contained in our Constitution: the right to counsel, the 
right to confrontation, et cetera.
    Ms. Fallin. So you believe the protections are there.
    General Black. There are some. There were built in.
    Ms. Fallin. Are some.
    General Black. That is correct.
    Ms. Fallin. Do they need to be refined?
    Admiral MacDonald. Well, as we have testified, and as you 
can see in our written statements, we do recommend in a couple 
of areas that the Senate bill be improved. But at the end of 
the day, with those improvements we believe that it complies 
with the law of war.
    General Rives. And I don't believe there are any additional 
protections needed to make the commissions process comply with 
the United States Constitution. I believe it does comply with 
the Constitution and with international law already. We are 
talking about some enhancements that will help the fairness of 
the process.
    Ms. Fallin. Mr. Chairman, I have one other question, if I 
can.
    Generals Black and Walker, back in 2006, you testified in 
front of this committee--that we were putting the MCA together 
for the first time--and you testified that you felt the 
standards for hearsay evidence were consistent with what is 
accepted in the international legal community for war crime 
trials, citing specifically the International Criminal Tribunal 
of Yugoslavia (ICTY).
    Have you changed your opinion? And if so, why?
    General Black. I have not, ma'am. The rules that we are 
putting together--that we put together in the 2006 Military 
Commissions Act and the rules that appear in the current bill 
meet or exceed the standards that are applied in the 
International Criminal Tribunal for Yugoslavia and the 
International Criminal Tribunal for Rwanda. So I have not 
changed my views in that regard.
    General Walker. I also, ma'am, have not changed my views. I 
think we meet the standards that were established--in ICTY, and 
other law of war where we have--if there has been a change, we 
have noted some disagreement with some of the proposed changes 
to those rules in the 2006 Military Commissions Act.
    Ms. Fallin. Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Ms. Fallin.
    It appears no one else wishes to interrogate.
    I wish to thank the panel for their expertise and for their 
service.
    Reference was made a moment ago about the international 
rule of law, and I suppose basically that is a reference to the 
Geneva Convention and the determinations as it applies. That is 
why we are here. We are at war. If we were not at war today, we 
would not have this hearing.
    And it is important that those of us that look at this 
understand--and I know that we do. And any comments to the 
contrary just don't hold water. We are at war. That is why we 
are taking the time to do it right.
    And as I said before--and I know I look at it like a 
country prosecutor that I was--when one is convicted by any 
jurisdiction, including but not limited to the tribunals, you 
want it to stick, you want it done right. You don't want it to 
be reversed on a procedural error or a substantive error.
    And that is why we are here, to help prosecute in our own 
way the effort via the young men and young women who wear the 
uniform and who are protecting us so valiantly.
    Gentlemen, thank you for your testimony. I thank the 
committee. The committee is adjourned.
    [Whereupon, at 4:00 p.m., the committee was adjourned.]


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




                            A P P E N D I X

                             July 16, 2009

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





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


              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             July 16, 2009

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

      
      
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    

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


              WITNESS RESPONSES TO QUESTIONS ASKED DURING

                              THE HEARING

                             July 16, 2009

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

      
              RESPONSE TO QUESTION SUBMITTED BY DR. SNYDER

    General Walker. Federal criminal law could apply to both of these 
scenarios.
    (a) According to 18 USC Sec. 7(3) (2009), the term special maritime 
and territorial jurisdiction of the United States, as used in Title 18, 
include ``[a]ny lands reserved or acquired for the use of the United 
States, and under the exclusive or concurrent jurisdiction thereof . . 
.''
    (b) Article III of the Agreement Between the United States and Cuba 
for the Lease of Lands for Coaling and Naval stations, February 23, 
1903 (TS 418, 6 Bevans 1120), states that ``during the period of the 
occupation by the United States of said areas under the terms of this 
agreement the United States shall exercise complete jurisdiction and 
control over and within said areas . . .''
    (c) These two provisions, read together, allow for the application 
of federal criminal law to crimes committed on GTMO. This proposition 
is supported by Federal case law. (See, e.g., Gherebi v. Bush, 352 F.3d 
1278, 1289 (9th Cir. 2003) (persons committing crimes on GTMO are 
subject to trial in US courts); United States v. Lee, 906 F.2d 117, 117 
(4th Cir. 1990) (Jamaican national charged under Federal law for crime 
committed on GTMO)).
    (d) Accordingly, various sections in Chapter 51 (homicide) of Title 
18 of the United States Code could apply to the murder scenario. E.g. 
18 U.S.C Sec. 1111(b) (making punishable murder in the first and second 
degrees ``[w]ithin the special maritime and territorial jurisdiction of 
the United States''). The theft scenario could be prosecuted under 18 
USC 661.
    3. Related Scenarios. The questions raised by the HASC logically 
lead to permutations of the proposed scenarios, which should be 
addressed. For instance, if the detainee killed a U.S. service member 
at GTMO, federal criminal law could be used to prosecute the detainee, 
but there may be other statutes that provide jurisdiction.
    (a) First, we address the Uniform Code of Military Justice (UCMJ). 
The UCMJ might apply to detainees through Article 2(a)(12) [10 U.S.C. 
Sec. 802 (a)(12)] which, ``[s]ubject to any treaty or agreement to 
which the United States is or may be a party or to any accepted rule of 
international law,'' makes subject to the UCMJ ``persons within an area 
leased by or otherwise reserves or acquired for the use of the United 
States which is under the control of the Secretary concerned and which 
is outside the United States and outside the Commonwealth of Puerto 
Rico, Guam, and the Virgin Islands.''
    (b) The Military Commissions Act (MCA) could possibly be used to 
prosecute detainees at GTMO for a murder, but not for a theft. The MCA 
addresses thefts on the battlefield in the sense of pillage, which does 
not seem to be a theft offense of the nature proposed.
    (c) The MCA extends jurisdiction over ``murder of a protected 
person'' (10 U.S.C. Sec. 950v(b)(1)), and ``murder in violation of the 
law of war'' (10 U.S.C. Sec. 950v(b)(15)). A ``protected person'' is 
specifically defined in the MCA (10 U.S.C. Sec. 950v(a)(2)), and could 
include another detainee because they are entitled to the protections 
of common article 3 of the Geneva Conventions.
    4. Conclusion. If a detainee killed a fellow detainee, he could be 
charged pursuant to our federal criminal code (Title 18). If a detainee 
commits a theft, federal criminal law could apply depending upon the 
nature of the theft. The UCMJ and MCA might offer other avenues to 
prosecute. [See page 16.]
?

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


              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             July 16, 2009

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

      
                   QUESTIONS SUBMITTED BY MR. SKELTON

    Mr. Skelton. In your oral testimony, you referred to law-of-war 
precedent for prosecuting individuals who were minors when the law-of-
war violations are alleged to have occurred. Please provide citations 
to this precedent and your assessment of its application to the 
applicable cases of detainees currently in Guantanamo Bay, Cuba.
    Admiral MacDonald. In the aftermath of the Second World War, both 
French and British military tribunals prosecuted and convicted minors 
for war crimes. (See Trial of Alois and Anna Bommer, United Nations War 
Crimes Commission, Law Reports of Trials of War Criminals (Vol. 9) 66 
(1947)--three daughters convicted of war crimes committed when two of 
the girls were between 16 and 18, and one daughter was between 13 and 
16), see also the Belsen Trial (United Nations War Crimes Commission, 
Law Reports of Trials of War Criminals (Vol. 2) (1947)--war crimes 
convictions of individuals who served in myriad capacities at Bergen-
Belsen Concentration Camp under the age of 21).
    In my view those cases are not directly relevant to the possible 
war crimes prosecutions of detainees at Guantanamo or to the possible 
war crimes prosecutions of persons detained in the future course of the 
ongoing armed conflict against al Qaeda and associated forces. Rather, 
I believe the practice of modern war crimes tribunals is more 
appropriate.
    The International Criminal Court (ICC) allows for war crimes 
prosecutions under National systems of justice, of persons who were 
between the ages of 16 and 18 at the time of their alleged misconduct, 
but prohibits war crimes prosecutions in National systems of justice 
for persons who were aged 15 or below at the time of the alleged 
misconduct. The ICC itself does not have jurisdiction over persons 
under the age of 18.
    The International Criminal Tribunals for Rwanda and the former 
Yugoslavia, do not have specific rules prohibiting or limiting war 
crimes prosecutions based on age. Rather, the age of an individual 
accused would be a factor to be considered in determining competence or 
capacity to stand trial and mens rea for any particular offense. To 
date, those tribunals have not included prosecutions of minors or 
persons who were under age 18 at the time of their alleged misconduct.
    The Special Court for Sierra Leone, set up jointly by the 
Government of Sierra Leone and the United Nations, and which has to 
deal with a large number of ``child soldiers'' alleged to have 
committed war crimes, has jurisdiction over persons who were 15 years 
old (or older) at the time of their alleged misconduct. The Special 
Court has a well developed and separate justice process for juvenile 
offenders that incorporates safeguards to minimize the stigma that may 
attach to such persons as well as limits on punishments that may be 
imposed. Those safeguards generally track internationally recognized 
standards for the adjudication and rehabilitation of juvenile 
offenders.
    Mr. Skelton. In your written testimony, you seem to advocate for a 
two-track approach for determining the admissibility of allegedly 
coerced statements. If a statement was elicited for the purpose of 
intelligence in the proximity of the battlefield, the statement should 
be admitted if the interrogator was acting in accordance with the laws 
of war. If the statement was elicited for the purpose of a possible 
prosecution or was secured in a location that is not close to the 
battlefield, then you seem to argue for applying a totality of the 
circumstances analysis to determine the voluntariness of the statement 
and thus its admissibility. Is that correct? If so, are the 
considerations for the totality of the circumstances test which the 
Administration has proposed in response to the Senate language 
acceptable in your estimation? How would you define ``proximate to the 
battlefield''? Would interrogations that occurred in a Theater 
Internment Facility fall within your second track--that is locations 
that are not proximate to the battlefield? How about at an internment 
facilities below the TIFs?
    Admiral MacDonald. I have consistently advocated a standard for 
determining the admissibility of statements of an accused that 
recognizes the distinction between a voluntariness standard that is 
appropriate in settings where the interrogation appears to be akin to a 
law enforcement interrogation, and a reliability standard that is 
appropriate in settings where a Soldier or Marine is conducting an 
interrogation at the point of capture for purposes of security, safety 
and mission accomplishment. Suppression rules have generally developed 
in order to deter conduct which we as a society find unacceptable on 
the part of law enforcement personnel. On the field of battle, 
conducting an interrogation at the point of capture in a manner that 
conforms with the law of war is exactly what we expect of our 
servicemembers.
    My goal has been to ensure that battlefield interrogations are 
treated differently from non-battlefield interrogations. But I have not 
been seeking a ``carve-out'' from voluntariness that exceeds the need 
for safety of our troops and mission accomplishment. I do, however, 
believe that an explicit statutory distinction should be made between 
statements that would be tested for voluntariness, and statements taken 
at the point of capture or in closely related combat engagements 
surrounding the point of capture. The latter would be tested for 
reliability, so long as admission of the statement would be in the 
interests of justice.
    Where the line is drawn between statements that fall within one 
test and statements that fall within another is a question that is best 
left to the military judges who will have to apply the statute, and the 
question will ultimately depend on the facts surrounding a given case. 
Point of capture may be a place in a room, a room, a building, or a 
city block or more, depending on the circumstances.
    I offer two draft proposals for your consideration. The first 
proposal is the one I recommend you use.

        Sec. 948r. Treatment of statements obtained by torture or 
        cruel, inhuman, or degrading treatment; self-incrimination; 
        other statements by the accused

                (a) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE OR 
                CRUEL, INHUMAN, OR DEGRADING TREATMENT.--No Statement 
                obtained by use of torture or by cruel, inhuman, or 
                degrading treatment (as defined by section 1003 of the 
                Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), 
                whether or not under color of law, shall be admissible 
                in a military commission under this chapter, except 
                against a person accused of torture or such treatment 
                as evidence that the statement was made.
                (b) SELF-INCRIMINATION PROHIBITED.--No person shall be 
                required to testify against himself at a proceeding of 
                a military commission under this chapter.
                (c) OTHER STATEMENTS OF THE ACCUSED.--A statement of 
                the accused may be admitted in evidence in a military 
                commission under this chapter only if one of the 
                following conditions is met:
                        (1) the statement was made during a force-
                        protection, tactical, or intelligence 
                        interrogation in reasonable proximity in time 
                        and location to the point of capture; the 
                        totality of the circumstances renders the 
                        statement reliable and possessing sufficient 
                        probative value; and the interests of justice 
                        would best be served by admission of the 
                        statement into evidence. In determining the 
                        issue of reliability, the military judge shall 
                        take into consideration all of the 
                        circumstances surrounding the taking of the 
                        statement, including but not limited to the 
                        degree to which the statement is corroborated 
                        and the indicia of reliability within the 
                        statement itself.
                        (2) the statement was voluntary. In determining 
                        whether a statement was voluntarily given, the 
                        military judge shall consider the totality of 
                        the circumstances, including, as appropriate, 
                        the details of the taking of the statement, 
                        accounting for the circumstances of the conduct 
                        of military and intelligence operations during 
                        hostilities; the characteristics of the 
                        accused, such as military training, age, and 
                        education level; and the lapse of time, change 
                        of place, or change in identify of the 
                        questioners between the statement sought to be 
                        admitted and any prior questioning of the 
                        accused.
                (d) OTHER USES PERMITTED.--Notwithstanding the above, 
                where the statement was not obtained by use of torture 
                or by cruel, inhuman, or degrading treatment, this 
                section does not prohibit use of the statement to 
                impeach by contradiction the in-court testimony of the 
                accused or the use of such statement in a later 
                prosecution against the accused for perjury, false 
                swearing, or the making of a false official statement.

    I also support the following language, which has the support of the 
Administration, and the Army and Air Force Judge Advocates General, the 
Staff Judge Advocate to the Commandant of the Marine Corps, and the 
Legal Counsel to the Chairman of the Joint Chiefs of Staff:

        ``Sec. 948r. Exclusion of statements obtained by torture or 
        cruel, inhuman, or degrading treatment; prohibition of self-
        incrimination; admission of other statements of the accused
          ``(a) Exclusion Of Statements Obtained By Torture Or Cruel, 
        Inhuman, Or Degrading Treatment.--No statement obtained by use 
        of torture or by cruel, inhuman, or degrading treatment (as 
        defined by section 1003 of the Detainee Treatment Act of 2005 
        (42 U.S.C. 2000dd)), whether or not under color of law, shall 
        be admissible in a military commission under this chapter, 
        except against a person accused of torture or such treatment as 
        evidence that the statement was made.
          ``(b) Self-Incrimination Prohibited.--No person shall be 
        required to testify against himself at a proceeding of a 
        military commission under this chapter.
          ``(c) Other Statements of the Accused.--A statement of the 
        accused may be admitted in evidence in a military commission 
        under this chapter only if the military judge finds--
                  ``(1) that the totality of the circumstances renders 
                the statement reliable and possessing sufficient 
                probative value; and
                  ``(2) at least one of the following:
                          ``(A) That the statement was made incident to 
                        lawful conduct during military operations at 
                        the point of capture or during closely related 
                        active combat engagement, and the interests of 
                        justice would best be served by admission of 
                        the statement into evidence.
                          ``(B) That the statement was voluntarily 
                        given.
          ``(d) Determination of Voluntariness.--In determining for 
        purposes of subsection (c)(2)(B) whether a statement was 
        voluntarily given, the military judge shall consider the 
        totality of the circumstances, including, as appropriate, the 
        following:
                  ``(1) The details of the taking of the statement, 
                accounting for the circumstances of the conduct of 
                military and intelligence operations during 
                hostilities.
                  ``(2) The characteristics of the accused, such as 
                military training, age, and education level.
                  ``(3) The lapse of time, change of place, or change 
                in identity of the questioners between the statement 
                sought to be admitted and any prior questioning of the 
                accused.

    Mr. Skelton. In your oral testimony, you referred to law-of-war 
precedent for prosecuting individuals who were minors when the law-of-
war violations are alleged to have occurred. Please provide citations 
to this precedent and your assessment of its application to the 
applicable cases of detainees currently in Guantanamo Bay, Cuba.
    General Rives. My testimony included the statement that, ``The law 
of war does not speak to the issue of minors as combatants . . .'' 
(emphasis added). Where the law of war speaks to the issue of age is in 
the Geneva Convention on the Protections of the Civilian Populations. 
Article 14 calls on States to create special safety protections for 
civilians, including children under the age of 15. In the 2002 Protocol 
to the Convention on the Rights of the Child, international law 
requires States to take special precautions when persons under the age 
of 18 are recruited into the States' armed forces.
    There have been circumstances where national courts (in France and 
Great Britain) prosecuted minors in the years following World War II, 
but they involve circumstances not analogous or applicable to the cases 
of the detainees at Guantanamo.
    More recent rules established by the United Nations tribunals for 
the Former Yugoslavia and Rwanda do not prohibit or limit prosecution 
of individuals based on age. Instead the age of the individual is a 
factor to consider in determining whether they have the capacity to 
stand trial. Tribunals established for Sierra Leone, as well as the 
International Criminal Court, establish age standards: minimum age of 
15 or older for the Special Court for Sierra Leone; no trial permitted 
for persons 15 years old or younger when the offense allegedly 
occurred.
    I believe the criteria established by the tribunals for the Former 
Yugoslavia and Rwanda are the right ones to adopt for the MCA. We 
should permit the convening authority and the commission judges to take 
into account an individual's age, but the facts of a given case should 
determine whether, and to what extent, a minor should be prosecuted for 
war crimes.
    Mr. Skelton. In your written testimonies, you argue against 
eliminating the current appellate court to military commissions, the 
Court of Military Commissions Review, as the SASC has proposed. Please 
elaborate as to why you believe that the CMCR is better suited than the 
Court of Appeals for the Armed Forces to review these cases?
    General Rives. I fully support the appellate structure established 
by the Military Commissions Act of 2006. The current structure, with 
review by the Court of Military Commissions Review with further appeal 
to the U.S. Court of Appeals for the District of Columbia and the U.S. 
Supreme Court, provides comprehensive review by appellate military 
judges experienced in military law and operations, with additional 
review by the Federal appellate court with jurisdiction over related 
detainee litigation.
    I also fully support broadening the scope of CMCR review to include 
factual sufficiency. This enhancement will align the scope of review 
with that employed by the Service Courts of Criminal Appeals and 
provide the additional assurance of thorough review of the underlying 
facts that supported the conviction.
    I concur with the Administration on this point and recommend 
against the SASC proposal to expand CAAF jurisdiction. Retaining the 
CMCR, composed in whole or part of appellate military judges 
experienced in reviewing cases for both factual and legal sufficiency, 
as well as military operations, is logical and efficient.
    Mr. Skelton. In your written testimonies, you argue against 
eliminating the current appellate court to military commissions, the 
Court of Military Commissions Review, as the SASC has proposed. Please 
elaborate as to why you believe that the CMCR is better suited than the 
Court of Appeals for the Armed Forces to review these cases?
    General Black. CAAF's role and responsibility under the UCMJ, to 
conduct a legal review of courts-martial, is well-defined. I do not 
believe it should be encumbered with a separate set of responsibilities 
or the requirement to conduct a factual as well as a legal review. The 
CMCR, on the other hand, can consist, in whole or in part, of appellate 
military judges schooled in the application of a factual sufficiency 
review and experienced in military law and operations. Therefore, the 
CMCR is best suited to conduct this first level appellate review of 
Military Commissions proceedings. I concur with the Administration on 
this point and recommend against the SASC proposal to expand CAAF 
jurisdiction under the circumstances.

                                  
