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






                         [H.A.S.C. No. 111-87]

 
                   REFORMING THE MILITARY COMMISSIONS
                    ACT OF 2006 AND DETAINEE POLICY

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              HEARING HELD

                             JULY 24, 2009


                                     
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                   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:

Friday, July 24, 2009, Reforming the Military Commissions Act of 
  2006 and Detainee Policy.......................................     1

Appendix:

Friday, July 24, 2009............................................    49
                              ----------                              

                         FRIDAY, JULY 24, 2009
   REFORMING THE MILITARY COMMISSIONS ACT OF 2006 AND DETAINEE POLICY
              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

Johnson, Hon. Jeh Charles, General Counsel, U.S. Department of 
  Defense........................................................     4
Kris, Hon. David, Assistant Attorney General, U.S. Department of 
  Justice........................................................     5

                                APPENDIX

Prepared Statements:

    Johnson, Hon. Jeh Charles....................................    53
    Kris, Hon. David.............................................    58

Documents Submitted for the Record:

    July 21, 2009, letters to Mr. Skelton from the Department of 
      Defense and the Department of Justice......................    67
    Department of Defense Military Commissions list submitted by 
      Mr. Forbes.................................................    70

Witness Responses to Questions Asked During the Hearing:

    [There were no Questions submitted during the hearing.]

Questions Submitted by Members Post Hearing:

    Mr. McKeon...................................................    77
    Mr. Skelton..................................................    75
   REFORMING THE MILITARY COMMISSIONS ACT OF 2006 AND DETAINEE POLICY

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                             Washington, DC, Friday, July 24, 2009.
    The committee met, pursuant to call, at 10:05 a.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. Today's 
hearing will continue the constructive conversation that we 
began last week with the top military attorneys of the services 
on reforming the Military Commissions Act of 2006. I look 
forward to hearing the perspectives of today's distinguished 
witnesses on what amendments are needed to ensure that we 
finally end up with a system that can withstand judicial 
scrutiny and ensure that convictions stick. We certainly 
welcome our witnesses' thoughts on what legislative changes are 
most necessary and how the existing law can be improved.
    In addition to military commissions reforms, today's 
hearing addresses other key detainee policy issues such as the 
closure of the detention facilities at Guantanamo Bay, Cuba, 
and the law-of-war detention. We initially had hoped that a 
major report addressing these critical issues would have been 
released earlier this week, as required by the President's 
Executive orders from the beginning of the year.
    Instead the Inter-Agency Task Force that was established to 
produce such a report received a six month extension and issued 
a preliminary report. The preliminary report reiterates the 
Administration's proposed changes to the military commissions 
system and begins to describe the process and criteria that the 
Attorney General will use to determine whether to prosecute a 
detainee in Federal criminal court or in a military tribunal. 
It does not, however, make recommendations on the details of 
Guantanamo's closure or on the process for continuing to detain 
enemy combatants or belligerents who, for different reasons, 
cannot be prosecuted in any of our courts.
    As the Detainee Task Force and the separate Inter-Agency 
Review Team that is evaluating all the files of the Guantanamo 
detainees finalize their work in the coming months, I am 
confident that they will recommend policies which will keep 
America safe and conform to American values.
    Nevertheless, I want to offer a few words of advice from a 
former country prosecutor. Although I continue to believe that 
the closure of the detention facilities in Guantanamo will keep 
and help restore our country's reputation and moral standing 
around the globe, I am concerned that time is running out for 
meeting the President's deadline. With little more than five 
months to go, the lack of details on how Guantanamo should be 
closed, or detainees will be transferred, what prosecutions 
will be taken to protect communities, the costs associated with 
the closure decision, and the range of related considerations 
is, frankly, disturbing. A detailed plan should be proposed as 
soon as possible. To maintain congressional support for the 
closure decision, this forthcoming plan should safeguard 
America and be able to be implemented in the little time that 
is left.
    With regard to detainees who cannot be prosecuted but also 
cannot be allowed to return to the battlefield, the 
Administration should:
    One, clarify the President's authority to detain these 
individuals, regardless of where they are held, and state 
whether legislation is needed to augment his authority to 
detain.
    Two, propose a process to replace the Administrative review 
boards in Guantanamo and similar bodies in Afghanistan with 
something that is more independent and viewed as legitimate.
    And lastly, third, indicate what factors will be considered 
to determine when an end of hostilities has been achieved and 
thus continued detention is no longer justified under the 
Supreme Court's Hamdi decision and the laws of war.
    Before I turn to the gentleman from California, let me 
mention that today's witnesses are the Honorable Jeh Charles 
Johnson, who is the General Counsel for the Department of 
Defense [DOD], and the Honorable David Kris, Assistant Attorney 
General, United States Department of Justice [DOJ].
    Now I turn to my good friend, my colleague, the 
distinguished Ranking Member 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. I thank you for 
holding this hearing on this important topic, the 
Administration's detainee policy and its plan for reforming the 
Military Commissions Act of 2006.
    Let me begin by welcoming our witnesses, the Honorable Jeh 
Johnson, General Counsel for the Department of Defense, and the 
Honorable David Kris, Assistant Attorney General Department of 
Justice. Gentlemen, good morning. Thank you for being here.
    On October 22, 2009 the President stood before the American 
people and announced that he would uphold his political promise 
to close Gitmo within a year and suspend all military 
commissions pending a review by the Administration. I do not 
want to make this a political issue. I think if Senator McCain 
had been elected, he probably would have done the same thing. 
Let me say that at the outset. Additionally, the President 
announced the creation of a Detainee Task Force that would 
review America's current terrorist detention policies and 
practices and recommended a path forward within six months.
    Mr. Chairman, many in Congress were skeptical of this 
approach. It seemed unwise to have a policy to close Gitmo 
without a plan. We immediately pointed to the danger of 
establishing a definite date to close Gitmo without first 
having identified an alternative location to detain these 
dangerous terrorists. Additionally, we warned that a policy 
vacuum from the executive branch would be filled by unelected 
judges who were not accountable to the American people. Our 
ultimate concern was that our military personnel serving in 
Iraq and Afghanistan could be vulnerable because of a lack of 
specific guidance from the Commander in Chief.
    I had the opportunity Monday with three of my colleagues to 
go to Gitmo, and it was quite an education. And I have a solid 
view of what I think should be done there now, and probably 
different from what I would have thought a week ago. But as we 
were flying back from Gitmo, we received notice that the 
Administration would not meet the President's self-imposed six 
month deadline for meeting the President's new detention 
policy.
    This delay is disturbing on many levels and deserves the 
attention of the American people. On one hand, I commend the 
President for the delay. On the other hand, it puts the trials, 
things that we are working on down there, in suspension that I 
think cause some real problems. So we are kind of between a 
rock and a hard place on this.
    Earlier this year I joined with many in Congress to support 
legislation which would have required the President to notify a 
State Governor and legislature 60 days prior to the transfer or 
release of a Gitmo detainee into their State; number two, 
obtain the consent of the State Governor and legislature to the 
transfer board release; and three, certify that the transfer or 
release of a Gitmo detainee would not adversely affect the 
national security of the United States or residents of the 
United States.
    Similar language was adopted by this committee in the House 
NDAA [National Defense Authorization Act]. In other words, 
Congress has made a bipartisan statement that it cannot fund 
any policy until it receives a plan.
    Given the six month extension for the Detainee Policy Task 
Force and the President's self-imposed deadline to close Gitmo 
by January 2010, I am concerned Congress will be handed a 
predetermined outcome. This would be an unacceptable outcome. 
Given the vacuum of information surrounding the 
Administration's detainee policy, today's testimony takes on 
even greater importance.
    Let me briefly lay out my views on the issues I expect our 
witnesses should cover today.
    Mr. Chairman, a comprehensive detention policy must include 
a strengthened authority to detain and a preventative detention 
framework; a plan for detaining high-valued detainees captured 
outside Iraq and Afghanistan where they will not have habeas 
corpus review; a plan that ensures Federal courts do not 
release detainees from Gitmo into the United States; and a 
clear framework that does not favor prosecuting detainees in 
Federal criminal courts but prosecutes violations of the laws 
of war in military commissions; a commission system that 
protects sensitive sources and methods and is tailored for the 
exigencies of the battlefield; and, finally, a plan that 
ensures that detainees we transfer or release from U.S. custody 
do not return to the battlefield and threaten our forces or 
citizens.
    It is the issue of transfer and release that gives me 
pause. When I visited Gitmo on Monday, one of our briefers 
showed us a picture of a former detainee that was released 
because he was compliant and seemed to no longer pose a threat. 
The picture showed him holding a child. It turned out we were 
wrong. He later blew himself up and killed 25 people in 
Baghdad. We have been wrong, according to DIA [Defense 
Intelligence Agency], 14 percent of the time.
    I fear we are getting it wrong in Iraq and Afghanistan, 
too. Just this week the New York Times reported that detainees 
released from American prisons in Iraq could have been the ones 
that carried out an attack on a restaurant, wounding scores of 
people. Every time we get it wrong, the consequences are fatal. 
We need to be honest about the risk of releasing detainees into 
Iraq, Afghanistan, and especially the United States.
    I look forward to your testimony, and I hope that the 
discussion we have today will give this Congress and the 
American people a better understanding of the President's 
detainee policy.
    Thank you and I yield back.
    The Chairman. I certainly thank the gentleman.
    We now will hear from our witnesses. We look forward to 
your testimony.
    Mr. Johnson, we recognize you first.

 STATEMENT OF HON. JEH CHARLES JOHNSON, GENERAL COUNSEL, U.S. 
                     DEPARTMENT OF DEFENSE

    Mr. Johnson. Thank you, Mr. Chairman, Congressman McKeon, 
members of this committee. You have my prepared advanced 
statement. I apologize for the lateness of getting that to you. 
In the interest of time I will----
    The Chairman. Let me interrupt. Without objection, the 
statements of the two witnesses will be entered in toto in the 
record.
    Mr. Johnson. In the interest of time I will just read an 
abbreviated version. On January 22, 2009, as was pointed out, 
President Obama signed executive orders 13492 and 13493 which 
establish two interagency task forces, one to review the 
appropriate disposition of the detainees currently held at 
Guantanamo Bay, and another to review detention policy 
generally. These task forces consist of officials from the 
Departments of Justice, Defense, State, and Homeland Security, 
and from our U.S. military and intelligence community.
    Over the past six months, these task forces have worked 
diligently to assemble the necessary information for a 
comprehensive review of our detention policy and the status of 
detainees held at Guantanamo Bay.
    I am pleased to appear today, along with David Kris of the 
Department of Justice, to report on the progress the government 
has made in a few key areas, including especially military 
commissions reform.
    Let me begin with some general observations about the 
progress. All told, about 780 individuals have been detained at 
Guantanamo. Approximately 550 of those have been returned to 
their home countries or resettled in others. At the time this 
new Administration took office on January 20, 2009, we held 
approximately 240 detainees at Guantanamo Bay. The Detainee 
Review Task Force has reviewed and submitted recommendations on 
more than half of those.
    So far, the Detainee Review Task Force has approved the 
transfer of substantially more than 50 detainees to other 
countries, consistent with security and treatment 
considerations, and a number of others have been referred to a 
DOJ-DOD [Department of Justice-Department of Defense] 
prosecution team for potential prosecution either in an Article 
III Federal court or by military commission.
    Additional reviews are ongoing and the process, we believe, 
is on track. We remain committed to closing the Guantanamo Bay 
detention facility within the one year time frame ordered by 
the President.
    A bipartisan cross-section of present and former senior 
officials of our government and senior military leaders have 
called for the closure of the detention facility at Guantanamo 
Bay to enhance our national security, and this Administration 
is determined to do that.
    The one other thing I would like to add is we talk a lot 
about closing the Guantanamo Bay detention facility, and as 
some of you on this committee know who visited there, the 
military personnel at that facility are truly professional. And 
so our discussions about closing that facility should in no way 
reflect upon what I believe is the first-rate dedication and 
professionalism of that guard force.
    Thank you.
    The Chairman. I certainly thank the gentleman.
    [The prepared statement of Mr. Johnson can be found in the 
Appendix on page 53.]
    The Chairman. Mr. Kris.

STATEMENT OF HON. DAVID KRIS, ASSISTANT ATTORNEY GENERAL, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Kris. Thank you, Mr. Chairman, Representative McKeon 
and members of the committee. Thank you for inviting me here. 
This is my first appearance for this committee. For the 
Department of Justice, I normally appear before the Judiciary 
or the Intelligence Committees. So I thought I would just begin 
by way of introduction to explain the work that I do and how it 
relates to that of the committee, particularly with respect to 
military commissions.
    I lead the Justice Department's National Security Division 
[NSD] which is the organizational unit that combines all of 
DOJ's major national security functions and personnel. And our 
essential mission is to protect national security using all 
lawful methods consistent with civil liberties and the rule of 
law, including but not limited to prosecutions in Article III 
courts and in military commissions.
    In the previous Administration, the National Security 
Division assembled a team of experienced Federal prosecutors 
drawn from across the country to assist DOD's Office of 
Military Commissions [OMC] and litigate cases at Gitmo. That 
assistance will continue. The man who led that team for NSD, 
who is a 15-year career DOJ prosecutor, is now my deputy, and a 
former member of the team has since been recalled to Active 
Duty and is the chief prosecutor in OMC.
    As the President has explained, when prosecution is 
feasible and otherwise appropriate, we will try terrorists in 
Federal court. I prosecuted a group of violent extremists in 
the 1990s. Like their more modern counterparts, they engaged in 
what would now be called, I think, lawfare, and the trials were 
very challenging. But the prosecution succeeded not only 
because it incarcerated the defendants, some of them for a very 
long time, but also because it deprived them of any shred of 
legitimacy in their antigovernment beliefs.
    Military commissions can help do the same for those who 
violate the laws of war. That is, not only detain them for 
longer than might otherwise be possible under the laws of war, 
but also brand them as illegitimate war criminals.
    To do this effectively, however, the commissions themselves 
must first be reformed. And the legislation now pending in the 
Congress is a tremendous step in that direction. You know from 
my written testimony and that of Mr. Johnson, that the 
Administration very much appreciates the pending legislation 
and supports much of it.
    Although I can't refer here to precise numbers, as Mr. 
Johnson said, a significant number of cases have been referred 
for possible prosecution by joint teams of officials from DOJ 
and DOD. That review is governed by a protocol that we have 
released publicly, and I think it would be worth just 
explaining the three essential principles that are embodied in 
that protocol.
    The first is, as the President stated in his speech at the 
National Archives, we need to use all elements of our national 
power to defeat our adversaries, and that is including but not 
limited to prosecution in both Article III courts and in 
military commissions.
    Second, Article III courts which have unquestioned 
legitimacy are also effective in protecting national security. 
And military commissions as we propose to reform them, which 
have unquestioned effectiveness, are also fair and legitimate.
    Now, I suspect there are many people in this room or 
perhaps elsewhere who might agree only with the first part of 
that sentence that I just stated, and there will be others who 
agree only with the second part. But we think both parts are 
right, and that leads really to the third and final principle.
    The choice between the two available prosecutorial for a 
need to be made by professionals based on a close and careful 
review of the facts of each case, using criteria established by 
policymakers, and these are reflected in the protocol. We 
cannot afford, consistent with the first two principles I have 
discussed, to adopt abstract rules that artificially constrain 
and limit our options. That would make us less effective than 
we otherwise would be in fighting terrorism.
    Thank you.
    The Chairman. I thank the gentleman.
    [The prepared statement of Mr. Kris can be found in the 
Appendix on page 58.]
    The Chairman. It seems to me there are two polestars in 
this whole issue before us. The first is that any conviction, 
whether it be by a tribunal or a Federal court, meet judicial 
scrutiny and that those convictions stick, that they be upheld. 
The same polestar is the necessity of keeping American citizens 
safe. Whatever comes to pass, this must--these two polestars 
must be kept in mind.
    I will not take a great deal of time, but I do wish to ask 
about the one category that seems to be the most troubling. And 
Mr. Johnson, I will call upon you to give us your best legal 
opinion.
    There are some in custody in Guantanamo today that could 
not be tried in a Federal court, and, even with relaxed hearsay 
evidence, could not be tried in a tribunal. But we know full 
well by other evidence, including their own statements, that 
they are highly dangerous, and, would, should they be turned 
loose, attempt to take American lives as well as lives of our 
allies.
    What do you propose to do with that group of inherently 
dangerous inmates at Guantanamo if you can't try them in either 
tribunal--but you know full well what they will do if turned 
loose?
    Mr. Johnson. Mr. Chairman, thank you for that question. The 
ability and the authority of our United States military to 
capture and detain the enemy is as old as the Army itself. It 
is a basic concept inherent in what the U.S. military does: 
capture and detain.
    And as recently as 2004, the Supreme Court, in the Hamdi 
decision, reiterated that inherent within the authorization 
granted by Congress in 2001 to go to war was the ability to 
detain those who are captured.
    Now, this President and this Administration in March 
revised the definition of our detention authority to more 
closely align detention authority with the authorization that 
Congress passed in 2001, the AUMF, the Authorization for Use of 
Military Force as informed by the laws of war. We believe that 
that definition, which we are now using in the courts with 
respect to Guantanamo, is the appropriate and sufficient legal 
authority to detain people who you have referred to, Mr. 
Chairman, as those who are threats to the American people, 
threats to our national security, but for whom we do not choose 
to prosecute.
    The Chairman. In other words, they could be held as long as 
the war continues.
    Mr. Johnson. What the President said in his National 
Archives speech is that for that category of people, if we have 
such people at the end of this review process, there should be 
clear, defined legal standards and there should be a periodic 
review, so that if we prevail in a habeas case and we don't 
prosecute them, we are not just throwing away the key. There is 
a periodic review that ought to be in place to do a form of 
threat assessment.
    The Chairman. But how long do you keep them? Until they get 
old and gray and pass away? Or how long can you legally keep 
them under your test, under your legal test?
    Mr. Johnson. Under traditional concepts, as you pointed 
out, you keep them until the end of the war.
    The Chairman. But there is no one in an insurgency or a 
guerrilla warfare to run up the white flag and sit down and 
sign a peace treaty. So what then?
    Mr. Johnson. That is absolutely correct. We are not going 
to see a peace treaty signed on a battleship, which is why we 
believe that some form of periodic review--I don't know whether 
that is every couple of months, every year or so--is 
appropriate to do a threat assessment of that particular 
detainee. And that part of the work of this task force is to 
develop that form of periodic review.
    The Chairman. As the gentleman from California pointed out, 
there has been one from Afghanistan that was reengaged in the 
conflict, and I have in front of me an unclassified 
documentation of others that have been repatriated and have 
reengaged in one place or the other.
    How do we assure the American people that is not going to 
happen?
    Mr. Johnson. What I can assure the American people is that 
when I and my colleagues at the Department of Defense go 
through this review process and look at threat assessments, 
look at the classified and unclassified evidence that we have 
about each detainee, the thing that weighs most on my mind 
certainly is, is this a person who is going to return to the 
fight? And to me that is the most important factor, evaluating 
that consistent with the law, consistent with the rule of law. 
So it is a thing that motivates us one way or another, frankly. 
We are all very cognizant of those statistics.
    The Chairman. Since January the 20th of this year, to your 
knowledge, have any of those that have been released become 
involved in reengagement?
    Mr. Johnson. Sitting here right now, I don't think I could 
give you that information. Sorry.
    The Chairman. Have some been released since January the 
20th of this year?
    Mr. Johnson. Certainly some have been transferred to other 
countries. Mr. Binyam Mohamed, for example, was sent back to 
the U.K. [United Kingdom], I believe.
    The Chairman. Do you understand my concern?
    Mr. Johnson. I certainly do. It is my concern as well.
    The Chairman. Mr. McKeon.
    Mr. McKeon. Thank you, Mr. Chairman. The Administration has 
expressed a preference for trying the detainees in Article III 
courts. Do you share that same preference?
    Mr. Johnson. Is that for me, Congressman?
    Mr. McKeon. Both of you.
    Mr. Johnson. Mr. Kris and I have worked out a protocol for 
determining when a case should be prosecuted in Article III 
versus military commissions. I think the document is public, 
and basically what the protocol says is that there is a 
presumption that, where feasible, referred cases will be 
prosecuted in an Article III court in keeping with traditional 
principles of Federal prosecution. Nonetheless, where other 
compelling factors make it more appropriate to prosecute a case 
in a reformed military commission, it may be prosecuted there.
    And then the document goes through three sets of factors 
that are kind of traditional factors prosecutors look at to 
determine whether a case that is prosecutable should be 
prosecuted in one forum or another. I suspect that will be a 
fact-intense, case-by-case review, sir.
    Mr. McKeon. One of the concerns I have in looking at that 
is it seems like you go through a preliminary judgment then. Do 
you think that that would prejudice a case?
    Mr. Johnson. The document itself--I was concerned about 
that very issue when we negotiated the document, and I would 
not want some line prosecutor or the media to think that we 
prejudged a case because we have referred it to one forum or 
another and that therefore you must indict that case.
    So at the end of the document, it refers to the 
independence of authorities; that however the protocol works, 
it is still up to the U.S. attorney or the chief prosecutor in 
the military commission to exercise their own independent 
judgment in making the determination that a case can and should 
be prosecuted. You can't, for example, eliminate grand juries 
that are going to make their own decisions in these cases, nor 
should we.
    Mr. McKeon. Is there a concern that by bringing them--I 
guess if you tried them under Article III you would bring them 
to the United States, try them in a Federal court.
    Mr. Johnson. I would assume so; yes, sir.
    Mr. McKeon. Is there any concern that they--because that 
would happen, then they would pick up additional constitutional 
rights that some may feel they shouldn't have?
    Mr. Johnson. Well, Mr. Kris could speak to that better. He 
is in charge of that process. But, you know, we obviously do 
have the rights that we enjoy in Federal criminal prosecutions, 
reflected in the Constitution, in the rules of Federal criminal 
procedure. And I think DOJ has a pretty good track record in 
cases where we have prosecuted alleged terrorists.
    Mr. Kris. I would just add sort of two points, I guess, 
Congressman. With respect to the way the protocol is going to 
work, the first point is that the referrals are made to joint 
teams, DOD prosecutors and DOJ prosecutors who are going to 
work together on these cases to try to come up with----
    Mr. McKeon. We--When we met with the--the four of us that 
went to Guantanamo Monday, we had an opportunity to meet with 
the lead prosecutor. His preference was that all--all of the 
trials be done in the military--by the military commission.
    Mr. Kris. Okay. I mean that is really--that is not the 
Administration's position that we make a bright-line 
determination, sitting here today, that all of the cases be 
prosecuted there, but, rather, that they be worked up and 
evaluated in a case-by-case, fact-intensive way, looking 
carefully at all of the elements of the case and then make a 
decision about which is the appropriate forum. But that we do 
that working together the way Jeh and I have worked together on 
the protocol.
    And the second, I guess, point to make about it is that 
these kind of forum selection choices are not alien to 
government officials. They are similar to choices that have to 
be made all the time, whether it be between a Federal and a 
State court, between a U.S. court and a foreign court, between 
a Federal court and a UCMJ [Uniform Code of Military Justice] 
proceeding----
    Mr. McKeon. This situation is kind of unique, though, with 
the terrorist situation and the problems we have had leading up 
to this.
    Mr. Kris. You are absolutely right.
    Mr. McKeon. Are you concerned at all that dividing up into 
two systems and the preference that going to one or the other 
might buttress the view that military commissions are second-
class type courts?
    Mr. Kris. It is a very good point. First, I don't mean to 
minimize the challenges associated with this. It is a unique 
situation. We are working hard, Jeh and I and people in our 
shops, to do this--to do this right. It is difficult, 
challenging, consequential. We think we can do it. We are set 
up to do it.
    I think it is vitally important on the last point you made 
to understand we are working very, very hard with the Congress 
now. We are actively discussing amendments to the Military 
Commissions Act with the Senate counterpart of this committee.
    Mr. McKeon. You are working with the the Congress. Who in 
the Congress are you working with?
    Mr. Kris. The Senate Armed Services Committee, as you you 
pointed out, has reported out a Levin--Senator Levin's bill----
    Mr. McKeon. They passed a bill last night--and I have it 
here--that they say it is the sense of the Congress that the 
preferred forum for the trial of alien unprivileged enemy 
belligerents subject to this chapter for violations of the law 
of war and other offenses made punishable by this chapter is 
trial by military commission under this chapter.
    Mr. Kris. I am aware of that and I appreciate that that is 
the sense of that committee and a possible sense of the 
Congress. What I meant was that--just to respond to the second-
class justice point, we are investing and the Congress is 
investing a huge amount of energy and effort to reform the 
Military Commissions Act in a variety of ways, as you know, and 
we think with those reforms the military commission system 
would not be a second-class justice system. It would be a 
first-class----
    Mr. McKeon. I don't think it is. What my question was do we 
think that the perception would be that it is because of this 
prejudging and moving some to one trial, some to another?
    Mr. Kris. We don't want that, we don't think that, and we 
don't want to prejudge. We want to work these cases one at a 
time and make a choice on a case-by-case----
    Mr. McKeon. But there has to--by definition, there will 
have to be some judgment made if you decide one goes here and 
one goes there.
    Mr. Kris. That is absolutely right.
    Mr. McKeon. And then--and we really can't control the 
perception of that process once the media or other people get 
hold of it. We can't control how the perception will be.
    Mr. Kris. Well, it is certainly true that I don't make any 
claim to control the media but Mr. Johnson and I are here----
    Mr. McKeon. Probably nobody in this room does.
    Mr. Kris. But we are here to tell you, and I think to tell 
people who are listening to this, that it is not the case that 
military commissions as we are proposing to reform them will be 
second-class.
    Mr. Johnson. Congressman, if I could just add to something.
    Mr. McKeon. Sure.
    Mr. Johnson. Captain John Murphy is a career professional. 
He is the prosecutor, the chief prosecutor you referred to a 
moment ago. He has spent 17 years as an assistant U.S. 
attorney. Like many of the military officers I encounter, I 
would expect him to be bullish and optimistic and proud of his 
mission. So it doesn't surprise me that he would tell you that 
he thinks we should handle all these cases in military 
commissions and that he thinks he can do so.
    Mr. McKeon. He is not alone in that. We had a hearing last 
week where we had the JAGs [Judge Advocate Generals] here from 
each of the services, and I think they also were of the same 
opinion.
    So, Mr. Chairman, I have another question but I think I may 
have used up my time. If we can come back.
    The Chairman. I am sure we will have a second round.
    I am trying to sit in your shoes to make a determination as 
to which forum in which to try a detainee. My judgment would be 
your decision would be based upon what type of evidence--in 
particular, what type of hearsay evidence could or could not be 
offered in each of the two tribunals. In a Federal court before 
a jury, there are certain hearsay rules that are quite strict. 
In a tribunal my understanding is that certain affidavits, 
certain statements that would violate a court hearsay rule, 
would be admissible and would cause your recommendation to be 
in a tribunal as opposed to a Federal court.
    Now, you did determine that a detainee by the name of 
Ghailani should be tried in a Federal court, and he was 
transferred to the Southern District of New York for 
prosecution in the Federal system. What factors went into 
determining that, if you may say so, in our forum today?
    Mr. Kris. Let me say what I can say, which is Ghailani, the 
man who has been transferred, is a bit of a unique case because 
he was already under indictment for the East Africa Embassy 
bombings in the Southern District of New York where others who 
had been indicted with him had already been tried. So I think 
it is appropriate to look at that case as a bit of a unique----
    The Chairman. That is a bit different circumstance; is that 
correct?
    Mr. Kris. Yes, it is a bit of a unique case given the fact 
that he was already----
    The Chairman. All right. Fine. Thank you.
    Mr. Ortiz.
    Mr. Ortiz. Thank you, Mr. Chairman. And I have a question 
for whoever can answer this question, for both of you.
    What percentage, if any, of the current detainee population 
in Guantanamo are not accused of being associated with al Qaeda 
or the Taliban, have not fought against the United States or 
coalition forces in Afghanistan, Iraq? Do we have a number that 
are still there but have not been accused of aligning 
themselves with the Taliban or any of the terrorist groups?
    Mr. Johnson. Congressman Ortiz, I don't think I can give 
you exact numbers. But what I can say about the current 
population at Guantanamo is that the overwhelming majority of 
them were captured in what we would consider the conventional 
battlefield circumstances in Afghanistan. So I hope that 
answers your question. I can't give you exact numbers about 
allegiance and so forth.
    Mr. Ortiz. They were picked up because of their 
association, not because they were involved with any of these 
terrorist groups; am I correct?
    Mr. Johnson. The overwhelming majority were captured in 
conventional battlefield circumstances, where our military was 
in Afghanistan pursuant to the authorization of this Congress 
in 2001 to engage the Taliban and al Qaeda forces.
    Mr. Ortiz. Now, have any of these people that I just 
mentioned, have they been tried by any of the courts?
    Mr. Johnson. We have had three convictions thus far in 
military commissions. Many of us, obviously, believe that we 
ought to be able to move more efficiently in those cases, but 
so far there have been three convictions.
    Mr. Ortiz. But you don't know the number? I mean it could 
be five, it could be 50, it could be 100 who are still detained 
under those circumstances?
    Mr. Johnson. Who are not part of al Qaeda or the Taliban?
    Mr. Ortiz. Right.
    Mr. Johnson. I suspect that the overwhelming majority are 
aligned with those combatant forces. I don't have exact numbers 
for you.
    Mr. Kris. Congressman, if I could just add, I am not sure 
this would be responsive to your question, but almost all of 
the 240 detainees who were at Gitmo as of January 20 have filed 
habeas corpus petitions with the United States District Court. 
And it is through the habeas corpus process that their 
detainability under the law of war is being tested, subject to 
judicial review by independent Article III judges.
    That determination analytically is distinct from a 
secondary question--which the word ``accused'' in your question 
brings to mind--which is how many have then also been possibly 
subjected to prosecution for not just being an unprivileged 
belligerent or an enemy combatant, or whatever the term is, 
sort of under the law of war, but actually being accused of 
crimes or war crimes. That is a smaller subset. But the larger 
population are having their detention tested through habeas 
corpus.
    Mr. Ortiz. I have just one more question, Mr. Chairman.
    Mr. Johnson, you stated before the Senate Armed Services 
Committee that it was the position of the Administration that 
if a detainee was acquitted of alleged crimes, the 
Administration may still have the authority to detain that 
individual under laws of the war. I mean, if they had been 
tried and they were found they were not guilty. This is 
something that I myself cannot understand, and maybe the 
American people don't understand either. Maybe you can 
elaborate a little bit on that.
    Mr. Johnson. It is my view as a lawyer, as a lawyer for the 
Defense Department, and the view of others that as a matter of 
legal authority--not as a matter of circumstances or policy or 
judgment--but as a matter of legal authority, if there is 
proper law-of-war detention authority for a particular 
individual, that is true irrespective of what happens in any 
eventual prosecution.
    So in your question, if the individual is acquitted, that 
would be irrelevant to law-of-war detention authority. Whether 
or not we ever actually did that as a matter of policy or 
judgment is to me an entirely different question, dependent 
upon the circumstances, what happens in that particular case, 
and so forth.
    I would point out that in one of the three cases, one of 
the three convictions, the individual received a life sentence. 
The other two received sentences and they have been 
transferred.
    Mr. Ortiz. The reason I ask this question is going back to 
Mr. McKeon's question about that individual who was turned 
loose, he goes back and he kills 25 people. I am just wondering 
if all these people who believe that they have done nothing 
wrong, that they become so angry and so indoctrinated while 
they are there, that when they are turned loose they go back 
and they turn against us. This is one of the reasons I am 
asking you this question.
    Mr. Chairman, I know my time is up. I yield back
    The Chairman. I thank the gentleman. We have, it appears, 
five votes, one 15-minute and four 5-minute votes. We will do 
our best to squeeze two questioners in before we go. Mr. 
Bartlett and Mr. Taylor.
    Mr. Bartlett.
    Mr. Bartlett. Thank you very much.
    I am, by a number of years, the oldest member of this 
committee. I remember when Franklin Delano Roosevelt defeated 
Herbert Hoover. I lived through the Great Depression. And you 
can't know how deeply grateful I am that this really poor 
Depression-era kid could have the opportunity to work and 
achieve and one day serve in this Congress. I say that because 
I want you to understand the context in which I make these 
statements and ask my questions.
    Are there not, or could there not be established world 
courts in which these prisoners could be tried?
    Mr. Johnson. I am sorry. Could you repeat that sir?
    Mr. Bartlett. Are there not, or could there not be 
established world courts in which these prisoners could be 
tried?
    Mr. Johnson. I would not rule out the possibility, sir. 
Others have called for a national security form of court. I can 
imagine circumstances under which it is plausible and 
appropriate to prosecute suspected terrorists in an 
international-type forum. We are trying to deal with the 
current population right now and the issues we have----
    Mr. Bartlett. I understand. I understand.
    Mr. Johnson. And we have got a bill that came out of the 
Senate that we think is a pretty good bill for a lot of 
reasons. There are areas where we would invite this body to 
consider amendments. But in theory I can imagine circumstances 
where that might be appropriate, sir.
    Mr. Bartlett. Thank you.
    In many things that we do, there is an inherent tension 
between national security and our international image, in the 
perceptions of millions around the world, about who we are and 
what we do. When I mention military tribunals to my 
constituents, they have the inherent initial response that I 
had when I first heard the word and we were going to do this, 
and that is a ``banana republic,'' a trial at midnight and 
execution at dawn.
    When you were children, I am sure your mother told you what 
my mother told me, and that is that you shouldn't borrow 
trouble. I regret that we are where we are today, facing the 
necessity of deciding how we try these criminals in either one 
of these two courts. I would have wished that we could have 
avoided--that obviously is a very dissentious and difficult 
matter, or we wouldn't be here today. I wish we could have 
avoided this by deciding at the very beginning that they should 
have been tried in international courts. No matter what we do, 
we run the risk of incurring considerable ill will around the 
world.
    Thank you very much for your attention to this, and I hope 
you can help guide us through this with the least damage. Thank 
you very much.
    The Chairman. I certainly thank the gentleman.
    Mr. Taylor and then we will break for the votes. Mr. 
Taylor.
    Mr. Taylor. Mr. Chairman, I am going to yield to one of our 
resident JAG officers, Mr. Murphy.
    Mr. Murphy of Pennsylvania.  Thank you, Mr. Taylor and 
thank you, Mr. Chairman. I appreciate it.
    Mr. Johnson and Mr. Kris, thank you for your service to our 
country. We appreciate it. There has been a lot of 
conversations and discussions in this committee and the 
Congress about our servicemen and women issuing Miranda 
warnings to terrorists captured on the battlefield. And, 
frankly, to hear some Members of Congress tell it, you would 
think that every one of our service members have been turned 
into police officers who are forced to worry about reading a 
terrorist his rights rather than completing his mission and 
keeping their fellow soldiers safe.
    We all agree, we all agree that the job of our Nation's 
military is to fight and win wars, not law enforcement or 
evidence collection. And I am glad that you are here today 
testifying before us, because I am hoping you could set the 
record straight on this issue once and for all. I know when we 
have spoken with General Petraeus, he is comfortable with what 
his soldiers are doing in both Iraq and Afghanistan.
    So let me be--I have a couple questions. One, how often are 
suspected terrorists captured on the battlefield and 
immediately read the Miranda warnings, and do these warnings 
ever occur on the actual battlefield itself? So if you could 
answer that, I would appreciate it.
    Mr. Johnson. Congressman, thank you for that question. And 
thank you for your service to our country. The Congress breeds 
some really terrific JAG officers.
    Mr. Murphy of Pennsylvania. Thank you, sir.
    Mr. Johnson. I--In response to that question and concern, I 
sent a letter to the Chairman, addressing this issue, and I 
would just read the first two paragraphs of the letter:
    ``I write to correct a serious misimpression that has 
arisen in recent weeks that the United States military may be 
providing Miranda warnings to terrorist suspects in 
Afghanistan. This is completely inaccurate.
    ``The record should be clear: The essential mission of our 
Nation's military in times of armed conflict is to capture or 
engage the enemy; it is not evidence collection or law 
enforcement. Members of the U.S. military do not provide 
Miranda warnings to those they capture.''
    Now, let me go on to say that in instances where the 
government chooses to go down the road of prosecution of a 
suspected terrorist, that too is a member--a mission to enhance 
national security, to bring to justice suspected terrorists. 
That is part of ensuring national security. One is not an 
alternative to the other. Thanks.
    Mr. Murphy of Pennsylvania. Well, thank you, gentlemen.
    And, Mr. Chairman, I know we have votes; so I will yield 
back the remainder of my time. Thank you.
    The Chairman. I thank you very, very much. For your 
information, that letter was entered into the record during the 
recent record on the resolution of inquiry that we took up this 
past week. And if anyone on the committee wishes a copy of it 
now, we will make sure the staff gets it to you.
    Mr. Forbes. Mr. Chairman I would like to--Mr. Chairman----
    The Chairman. We will--I tell you--to make it easy. We will 
just make sure everybody on the committee gets a copy of that.
    We will now recess until the end of the votes and, 
gentlemen, we shall return. Thank you.
    [Recess.]
    The Chairman. The hearing will resume.
    Before each member is the letter dated July 21, addressed 
to me from the general counsel in the Department of Defense and 
from the Office of the Attorney General.
    [The information referred to can be found in the Appendix 
on page 67.]
    The Chairman. Mr. Akin.
    Mr. Akin. Thank you, Mr. Chairman.
    I am not a lawyer, and some of you have been getting into 
some fine points here, but perhaps an engineer's perspective 
may be the way some Americans are looking at this whole 
situation.
    I just want to review, generally, the facts. That is, in 
January the President made a decision to close Gitmo. I assume 
that is right. Is that true?
    Mr. Johnson. Yes, sir.
    Mr. Akin. And we have about 229 people in Gitmo, is that 
right?
    Mr. Johnson. That is also true.
    Mr. Akin. And a good number of those are some bad hombres, 
in the parlance.
    Mr. Johnson. Thank you, sir.
    Mr. Akin. I understand lawyers want to parse terms, but 
these guys would kill American citizens if they got out and if 
they were able to do so, a good number of them.
    Mr. Johnson. I think we should assume that, yes, sir.
    Mr. Akin. Okay. So then my question becomes, kind of, it 
seems like getting more toward the bottom line.
    First of all, does the Administration plan to release 
detainees into the U.S.? I am not asking for a very lawyerly--
just either ``yes'' or ``no'' or ``maybe'' or ``I don't 
know''--a fairly short answer. Are we going to release these 
detainees into the U.S.?
    Mr. Johnson. No.
    Mr. Akin. No. Does the Administration plan to transfer 
detainees into the U.S.?
    Mr. Johnson. What we plan to do, consistent with the 
national security interest and the safety of the American 
people, is close Guantanamo, move them to another facility, 
consistent with all of those interests.
    Mr. Akin. Yeah, but that still didn't really answer the 
question. Are we going to transfer the detainees to the U.S.?
    Mr. Johnson. We are considering the possibility of a number 
of alternative locations. Some may be transferred to other 
countries. Some will be transferred to Department of Justice 
custody for eventual prosecution. And some will be transferred 
to another facility. Where that facility is I could not tell 
you at this moment.
    Mr. Akin. So it is not absolutely clear, but it is quite 
possible that some of the detainees could be transferred to the 
continental United States.
    Mr. Johnson. It is possible that, consistent with the 
safety of the American people and our national security 
interests, we will move them to a location in the United 
States. That is possible.
    Mr. Akin. Okay. And would they be brought here if we were 
going to do a trial here?
    Mr. Johnson. Yes.
    Mr. Akin. Okay. And that would be maybe one of the 
conditions that would bring them here, if we are going to do a 
trial, especially if it was going to be a civil-type trial, 
right?
    Mr. Johnson. Well, it has already been the case that some 
detainees have been transferred to the United States for 
criminal prosecution.
    Mr. Akin. Okay.
    Now, another piece of the equation seems to be that we 
could increase the barrier in terms of making it harder to 
figure out some other country to send them to if we become more 
picky about the--some other country's foreign rights kind of 
prac--I mean human rights kinds of practices. Is that correct?
    Mr. Johnson. We do not transfer detainees, or anybody else 
for that matter, to a country that we believe will torture 
them.
    Mr. Akin. Right. Now, is there any movement among some of 
the different groups? I guess since the President made the 
decision we are going to close Guantanamo Bay, six months has 
elapsed. And so I guess people have been studying this whole 
deal. I assume that is what you have been doing for the last--
--
    Mr. Johnson. We have spent a lot of time studying this, 
correct, sir.
    Mr. Akin. Right. Okay. And, in the process of that study, 
is there any recommendation that we raise the bar in terms of 
where we could send these prisoners if they were going to go to 
a foreign country, in terms of saying there maybe they don't 
treat prisoners humanely enough or don't give them enough food 
or have enough chocolate chip cookies or whatever it happens to 
be?
    Is there anything we are going to do which is going to make 
it harder for us--or are you going to recommend is there 
anything we are going to do to make it harder for us to 
transfer prisoners to a foreign country?
    Mr. Johnson. Well, another consideration in the equation, 
sir, is assuring ourselves that the country to which we send a 
detainee will provide adequate security conditions so that they 
are not just released into the general population if we think 
that that detainee is a security threat.
    So even in a circumstance where the country says, ``Yeah, I 
would love to have them back,'' we are not going to do that 
unless we are satisfied that they are going to provide adequate 
security conditions for accepting them back. That is part of 
the equation. It is not just the consideration of, are you 
going to torture that person?
    Mr. Akin. Right. I guess there is two sides to the 
equation. You just answered the other half of the question, 
that there may be people that would not be able to detain them 
and give them the proper security to make sure that they don't 
get out.
    The other question, though, is, are we going to limit the 
number of countries we could send them to by increasing the 
standards in terms--in another sense, in terms of their way 
that they handle prisoners?
    Mr. Johnson. I know what the current standard is, sir, and 
that is what we are applying.
    Mr. Akin. The current--but you are not advocating that we 
are going to change that current standard.
    Mr. Johnson. I don't know of any other standard that we 
would consider utilizing at the moment, sir.
    Mr. Akin. Okay.
    Thank you, Mr. Chairman.
    The Chairman. Thank the gentleman.
    Dr. Snyder.
    Dr. Snyder. Thank you, Mr. Chairman.
    Thank you all for being here. And we very much value your 
opinion on these issues and so many others.
    When you all were discussing somewhat earlier the issue of 
forums, which forum do you use, military commissions or the 
Article III courts--just coincidentally, today's paper, the 
Arkansas Democrat-Gazette, has a story about the case of 
Abdulhakim Mujahid Muhammad, a name probably you all don't know 
because he is not one of your detainees. He is the young man 
from Tennessee that came to Little Rock and shot the two 
soldiers, Private William Long, who died, and Private Quinton 
Ezeagwula. They were in uniform, on duty, outside a Federal 
recruit depot. They were targeted, in his words--he has been 
making press statements--that because they were part of our war 
in Afghanistan. He actually has traveled to, I think, Yemen. It 
is not clear what all his background has been.
    But he is going to be arraigned, not in a military 
commission, not in a Federal court, in Pulaski County Circuit 
Court, on a capital murder charge, amongst some other felonies. 
So this--it brings home the complexity of these issues, because 
we certainly, potentially, have other folks that will fall 
under the jurisdiction of U.S. authorities other than from Iraq 
and Afghanistan, including some people in our own country.
    I wanted to ask specifically--and I asked this question the 
other day, and didn't--and people didn't know what the answer 
was. If a detainee in Guantanamo today were to kill another 
detainee, what body of law would govern and what would happen 
to that--I assume that there would be criminal charges brought, 
one detainee killing--one human being killing another human 
being. What body of law would be--would determine?
    Mr. Kris. I mean, I think that, especially after the Rasul 
decision, that Gitmo is within the special territorial and 
maritime jurisdiction of the United States. So this is 
something I should check to make sure I can give you an 
authoritative answer, but I do think there would be Federal 
jurisdiction in an Article III court over a crime committed 
there.
    Dr. Snyder. What I think is interesting about your answer--
and when we had the JAGs the other day, very nice guys, very 
professional guys, they did not know. And what confuses me 
about that, I mean, we have had Guantanamo there for several 
years now. We hear stories that our guards are at great risk. I 
assume that they have been hit. I mean, there is an opportunity 
to bring felony charges and, I would think, convictions, 
because we've got an evidence trail right there within the 
confines.
    I am curious why we haven't pursued any charges against 
detainees if they actually have committed what we think were--
maybe I am wrong. Maybe it has all been patty-cakes down there, 
but that is not the impression I have had.
    Mr. Johnson. Well, in fairness to our T-JAGs--you ask a 
very good question, so we----
    Dr. Snyder. They said that very same thing.
    Mr. Johnson. We had the benefit of advance notice of your 
question. But I agree with Mr. Kris' assessment.
    Dr. Snyder. But the reason I reacted to your answer, you 
``thought'' it would be, which tells me you have not prosecut--
that there have been no prosecutions for actions committed by 
detainees while on Guantanamo during their time.
    And my only point is, if you have got somebody you are 
trying to lock up somewhere or deal with in a definitive way 
and you don't have evidence for exactly what they did, a harder 
case to prove whether it was in Afghanistan or Iraq or in the 
United States or wherever it was, but then they actually do 
something that you can potentially convict and lock them up for 
20 years, I would think that there would have been things that 
would have occurred that, yes, we can convict this person on 
this charge.
    But--so, I don't know. I wondered if it is because people 
are afraid to actually bring some kind of charge, that it might 
say, well, they would fall under this court or these laws. But 
do you have any idea why that hasn't occurred?
    Mr. Johnson. As I sit here now, I can't tell you for 
certain that there haven't been prosecutions. I know that there 
are a number of disciplinary-like measures that are taken for 
misbehavior, misconduct, so forth.
    Dr. Snyder. Yeah. I mean--it may be this is a very well-run 
facility and people are not--don't have the opportunity to do 
some really bad things. I wanted to--if you have any additional 
information about that, I would be interested.
    My last question I think you have touched on, but the 
mention in Mr. Akin's question about whether folks would come 
up here. I assume people come up to the United States, or have 
or potentially could, for medical reasons, that Guantanamo may 
not have the kind of--you know, if you have really--need a 
tertiary center or something.
    I am sorry. Time is up, apparently.
    The Chairman. Thank the gentleman.
    Mr. Forbes from Virginia.
    Mr. Forbes. Thank you, Mr. Chairman.
    Mr. Johnson, Mr. Kris, first of all, let me thank you for 
being here, for all of your service. You are good guys. And 
forgive me for having to talk quick and ask for you to be 
concise in your questions, but I only have five minutes.
    I was with the group that went down to Guantanamo on 
Monday. We did meet with your chief prosecutor, Mr. Johnson. He 
is under your jurisdiction, I would take it. Is that correct? 
Under your department?
    Mr. Johnson. The Office of General Counsel has supervisory 
authority over the OMC.
    Mr. Forbes. You are familiar with Mr. Murphy and his 
competence. And I take it, he is the best guy we have to be in 
that chief prosecutor position or he wouldn't be there?
    Mr. Johnson. He is an experienced, professional prosecutor, 
yes, sir.
    Mr. Forbes. I want to narrow in on the 9/11 defendants. 
Because we talk about detainees; sometimes we don't have faces 
with names. But as to the 9/11 defendants who are detainees 
there who are undergoing this prosecution, it has been a 
referral, that is being prosecuted, or was being prosecuted.
    The chief prosecutor said his goal was to get justice for 
the victims of terror and for the citizens of the United 
States. Is that a fair and just goal?
    Mr. Johnson. That is a fair and just goal for the United 
States Government, yes, sir.
    Mr. Forbes. Is that the goal of this Administration?
    Mr. Johnson. Yes, sir.
    Mr. Forbes. If that is the case and that is a standard, 
should that standard be changed simply because someone has a 
perception that that standard is wrong?
    Mr. Johnson. I don't believe so.
    Mr. Forbes. In that particular case, then, I want to go to 
the
9/11 attacks and the prosecution that is undergoing there. Are 
you aware of the number of pleadings and motions that have 
already been resolved in that one proceeding alone?
    Mr. Johnson. I know that, in that case and in several other 
of the pending cases, we have as many as perhaps a hundred 
pretrial motions that have been resolved, yes, sir.
    Mr. Forbes. In that particular case--and, Mr. Chairman, I 
would ask that this be submitted as part of the record. It is 
from the Department of Defense, listing 56 motions that have 
already been resolved in that one proceeding.
    The Chairman. Without objection.
    [The information referred to can be found in the Appendix 
on page 70.]
    Mr. Forbes. And, of those 56, Mr. Murphy told us when we 
were down there on Monday, the Executive order the President 
signed didn't just talk about a review, as you mentioned 
earlier, but it actually stayed the proceedings for the 
military tribunals going on. Is that correct?
    Mr. Johnson. Yes, sir.
    Mr. Forbes. And, on that, the chief prosecutor told us that 
that is now necessitating that he go in and ask for a 
continuance on September 11th, which he said is far from 
certain that he will be granted. Are you familiar with the fact 
that he is going to have to do that in that proceeding?
    Mr. Johnson. The continuances have, in fact, been granted 
in the 9/11 case.
    Mr. Forbes. And are you familiar with the fact that he has 
to ask for one on September 11th because he can't go forward 
with this trial now, with this tribunal?
    Mr. Johnson. It is currently stayed.
    Mr. Forbes. And he also, then, told us that there is a very 
good chance that the judge, since he has already asked for 
continuances, as you mentioned, had--may not grant that 
continuance. And if the judge doesn't grant that continuance, 
he has said that he will have to dismiss the charges against 
the defendants because he can't move forward based on this 
Executive order.
    Are you familiar with that?
    Mr. Johnson. I agree that continuances are up to the 
discretion of the trial judge.
    Mr. Forbes. Would you also agree that, if he can't get that 
continuance, that he can't move forward with the commission and 
he will have to dismiss those charges?
    Mr. Johnson. Yes.
    Mr. Forbes. And if he has to dismiss those charges, why in 
the world would the Administration put him in a position to 
risk dismissing the charges against the 9/11 defendants?
    Mr. Johnson. Well, if--even though the case has been 
suspended, those particular individuals--and I hesitate 
commenting on a particular case--but it is the fact that those 
particular individuals remain detainees at Guantanamo. And 
irrespective of what happens in the case, they are subject to 
law of war detention.
    Mr. Forbes. Well, then, Mr. Johnson, why in the world are 
we having these proceedings if we are going to retain them 
whether we have the proceedings or not depending on--and it 
doesn't matter what the outcome of the proceedings are?
    Mr. Johnson. Because on--in certain contexts, people who 
violate the laws of war or violate Federal criminal laws should 
be brought to justice. The public, I think, expects that.
    Mr. Forbes. Did the--Did the defend--Is it your opinion, 
your personal opinion that the individuals, the defendants in 
the 9/11 attacks violated were acts of war, or were they 
violations of criminal law?
    Mr. Johnson. I cannot comment on a particular case. I don't 
think it would be prudent for me to do that, given my position 
in the Department, sir.
    Mr. Forbes. Mr. Kris, can you say whether or not, in your 
personal opinion, that the acts that took place on 9/11 were 
violations of war--acts of war or were they violations of 
criminal law?
    Mr. Kris. I am not going to testify in my personal opinion. 
But I think it is fair to say that they are both.
    Mr. Forbes. Mr. Kris, you are not prepared to give us your 
personal opinion when you came here? Every other witness--well, 
I am out of time. I will hopefully come back. But I want to 
just prep you all for when I do get some more time. We have 
been asking all of our witnesses their personal opinions when 
they come in here. That is what we look to you for.
    Mr. Chairman, my time is out.
    Mr. Kris. Congressman, I beg your pardon. I just want to 
make clear, I am testifying as an Administration witness. I 
know some of the military officials can testify in their 
personal capacity and give their personal opinions.
    But I will say that I think the 9/11 attacks are both 
violations of the law of war and of the criminal laws of the 
United States.
    Mr. Forbes. Thank you both.
    The Chairman. Mr. Kris, you understand the difference 
between a case being dismissed with prejudice or dismissed 
without prejudice? Do you understand the difference?
    Mr. Kris. I do, yes.
    The Chairman. If it is dismissed without prejudice, it may 
be refiled. Am I correct?
    Mr. Kris. Yes.
    The Chairman. If it is dismissed with prejudice, that 
person may not be tried under the same charge. Is that correct?
    Mr. Kris. That would normally be true, yes.
    Mr. Forbes. Mr. Chairman.
    The Chairman. Yes.
    Mr. Forbes. Would the gentleman yield?
    The Chairman. Yes.
    Mr. Forbes. Based on that line of questioning, I would just 
like to put in the record that the chief prosecutor would agree 
that there might be a possibility that he can refile this. But 
the problem would be that--and I think Mr. Larsen and Mr. 
McKeon would agree--that he said that it could take another 18 
months just to get where they are right now because of all 
these proceedings, because they would have to start from 
scratch, and also that it could be that the speedy trial laws 
would actually prohibit him from bringing a case again. All of 
that is up in the air.
    And I just yield back and thank the gentleman.
    The Chairman. Well, I thank the gentleman. But my question 
is, these particular cases, were they dismissed without 
prejudice or with prejudice?
    Mr. Kris. I mean, I don't know what the judges will do. I 
hope they won't dismiss at all.
    The Chairman. No, no. Have they already been dismissed?
    Mr. Kris. No.
    Mr. Johnson. Under military commissions procedure, when a 
case is withdrawn, as a few have been in the past, they are 
withdrawn without prejudice.
    The Chairman. Is that part of the rules and regulations 
under which the commission operates?
    Mr. Johnson. Yes, sir.
    Mr. Kris. I might just make, sort of, three quick points 
that may help on this, maybe not.
    But the first is that the protocol considers efficiency, 
which would embrace, I think, prior litigation in guiding forum 
choice.
    The second is that I think the President has made clear we 
are not going to go forward with a Military Commissions Act 
proceeding until the necessary reforms have been made to the 
military commissions system in any event.
    And, third, that the pending legislation, I think, as it 
stands today, has a, sort of, conforming amendment approach 
that allows for the possibility of continuing the cases that 
are pending even after the amendments have been enacted into 
law.
    The Chairman. Ms. Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman.
    I have consistently supported the use of military 
commissions in appropriate cases. And I was one of the first 
ones to introduce in 2005 a military commissions bill. 
Nonetheless, I voted against the MCA [Military Commissions Act] 
of 2006 because I had some certain concerns with it. And I am 
glad that, in looking over your review, that your revisions and 
suggestions, that you have actually gone to some of those 
concerns. So I want to thank you.
    However, I am surprised you didn't include a revision of 
the definition of ``unlawful enemy combatant,'' which I think 
currently is ``any person who has engaged in hostilities or who 
has purposefully and materially supported hostilities against 
the U.S. or its co-belligerents.''
    I think that the intent of military commissions is to 
police the battlefield. And I believe that military commissions 
are intended to enable--I believe that there should be clear 
boundaries for the use of these special wartime commissions to 
prevent them from more general use in normal law enforcement 
cases.
    Cases involving noncombatants should be disposed of through 
Article III courts. I believe this would be accomplished by 
restricting the jurisdiction of military commissions and the 
definition of ``unlawful enemy combatants'' to persons who 
actually engage in armed hostilities or attempt, conspire, or 
aid and abet the same. This definition draws the line more 
strictly around those who participate in acts of violence under 
the well-defined traditional headings of principals, attempts, 
and conspiracy.
    And, for example, some of the examples I might use is that, 
under the MCA, the personal jurisdiction of the military 
commissions are limited to unlawful enemy combatants. I am 
concerned that defined categories broadly include persons, for 
example, who are captured off of the battlefield for various 
noncombatant support or, like, monetary contributions to 
terrorist organizations, for example.
    So my question to you is, have you given thought on whether 
you would define the--how you would define the personal 
jurisdiction of military commissions? And, if so, how? And how 
would you change the definition of ``unlawful enemy 
combatants,'' if you would?
    Mr. Johnson. Congresswoman, first thing I would do is refer 
to the Senate bill, which I think no longer uses the phrase 
``unlawful enemy combatant'' in defining jurisdiction. And I 
think the phrase used in that bill is ``unprivileged enemy 
belligerent,'' which is a phrase that many military law experts 
use and embrace.
    In response more broadly to your question, I would refer 
you to the definition that we are now using with the Department 
of Justice in our Guantanamo habeas litigation for who we say 
we have the authority to detain. That was a definition that was 
modified in March from the previous Administration's 
definition.
    In that definition, we no longer use the phrase ``unlawful 
enemy combatant.'' And it is a definition that is more closely 
tied to the Authorization for the Use of Military Force that 
the Congress passed in 2001, as informed by the laws of war.
    So that is the definition we are using as our detention 
authority for the people at Guantanamo. And who we prosecute in 
that group is a subset of that group that we think we have the 
authority to detain.
    Ms. Sanchez. But the Congress has not changed the 
definition.
    Mr. Johnson. No, no. We, the executive branch----
    Ms. Sanchez. You are.
    Mr. Johnson [continuing]. Changed the definition in our 
submission to the courts for who we say we have the authority 
to hold.
    Mr. McKeon. Will the gentlelady yield?
    Ms. Sanchez. I will yield to you, Mr. McKeon.
    Mr. McKeon. In the Senate bill that they passed last night, 
they used this definition, ``unprivileged enemy belligerents.'' 
So the Senate is using that.
    Ms. Sanchez. Yeah, but we aren't. I mean, the current law 
isn't.
    Mr. McKeon. No, we didn't address it in our bill. It is 
something we will have to address in conference.
    Ms. Sanchez. Right.
    Mr. Kris. The Military Commissions Act and the Senate Armed 
Services bill to which Representative McKeon just referred have 
this definition. They use different terms to describe it.
    But, as Mr. Johnson said, there is the possibility of 
linking the personal jurisdiction more explicitly to the 
authorization to use military force from September 2001. That 
is still, I think, an open question, and we are very interested 
in working with Congress on that.
    One other point that may help address the basic point you 
were advancing, I think, Congresswoman Sanchez, and that is 
that, whatever personal jurisdiction issues are--exist, 
military commissions will be limited in terms of their subject 
matter jurisdiction to law of war violations. So an ordinary 
Federal crime would be, I think, outside the scope of what 
could be tried there, regardless of personal jurisdiction 
issues.
    So I just wanted to add that limiting gating factor that I 
think is an important part of how you look at this.
    Ms. Sanchez. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    The gentleman from Texas, Mr. Conaway.
    Mr. Conaway. Thank you, Mr. Chairman. I appreciate it.
    Gentlemen, thank you for being here.
    Hearing the phrase, ``unprivileged enemy belligerent,'' 
took me back to my B law days when bank robbers were described 
as ``holders not in due course.'' Not relevant to what I want 
to ask.
    We are in an ongoing fight. And with respect to new folks, 
folks who aren't yet at Guantanamo Bay or aren't going to go 
there, does the Administration plan to use a preventive 
detention system for terrorist detainees in the future?
    Mr. Johnson. It is difficult to predict the future. We 
believe that the Congress authorized law of war detention for 
these particular detainees at Guantanamo. That is the 
definition we are now using. And the courts have reaffirmed 
that principle as recently as 2004.
    Mr. Conaway. Okay. But if we picked up a guy on the 
battlefield today that is clearly an al Qaeda or related--an 
affiliate of al Qaeda, does the Administration believe you have 
got the authority to preventatively detain that new combatant, 
or unprivileged enemy belligerent--a guy with a bad attitude, I 
guess--under the rules? And, if so, where do you plan to keep 
these guys, or women, depending on who you pick up?
    Mr. Johnson. If that detainee fits within what Congress 
adopted in 2001--I think the language was al Qaeda, Taliban--
and they are at Gitmo, we certainly believe that we have the 
authority to detain that person. Part of our review process----
    Mr. Conaway. Okay, let's focus on the new guys that aren't 
at Gitmo and, if you have your way of closing it, won't go to 
Gitmo. Where are you going to keep those folks?
    And let's broaden the question a little bit, to if we 
picked them up in Yemen, some other place in the world besides 
Afghanistan. What is the Administration's position with respect 
to those bad guys?
    Mr. Johnson. We--If they are a member of al Qaeda, they 
constitute a security threat, we would certainly look to detain 
them, after we capture them, someplace. Where exactly that is, 
I would hesitate to try to speculate right here.
    Mr. Conaway. Okay. Are there plans within the 
Administration to determine where that place might be?
    Mr. Johnson. Yes, sir.
    Mr. Conaway. And who would be--who would we need to bring 
down here to talk about that?
    Mr. Johnson. I can try to help you identify that person 
somewhere within the Department of Defense.
    Mr. Conaway. Okay. So you are not just--I am always nervous 
when I am----
    Mr. Johnson. A lawyer doesn't always have all the answers.
    Mr. Conaway. Well, lawyers parse their words very easily.
    You mentioned earlier about, if we prevail in the habeas 
cases, that we will keep these guys forever. What if we don't 
prevail?
    Mr. Johnson. As the President said in May, if we have the 
detention authority, there should also be some form of periodic 
review----
    Mr. Conaway. But wait a minute.
    Mr. Johnson [continuing]. So you don't just keep them 
forever.
    Mr. Conaway. Okay, well, do you or don't you have the 
detention authority?
    Mr. Johnson. We believe we have the detention authority 
with respect to the current population. There comes a time--and 
I think the Supreme Court may have alluded to this--that, if 
circumstances change and the person is just sitting there year 
after year after year, we may lose that authority, and so some 
form of periodic review might be appropriate.
    Mr. Conaway. Because the fight is over, or because this 
person is infirm?
    Mr. Johnson. Because the fight is over and/or the person is 
no longer a threat.
    Mr. Conaway. Okay. If the fight is over, then we couldn't 
hold any of them, under that preventive detention measure, 
right? And how are we going to know when the fight is over?
    Mr. Johnson. Well--under the traditional law of war 
principle, you hold them until the cessation of hostilities, 
until the war is over.
    Mr. Conaway. Right.
    Mr. Johnson. And this obviously is a different kind of war. 
So we think some form of periodic review is appropriate that 
makes a threat assessment.
    Mr. Conaway. Sure.
    Mr. Kris, are you--what kind of assurances--once you hear 
the question, you will say none--but what kind of assurances 
can you give us that some Federal judge in the system somewhere 
won't decide that, because this fight is, as Mr. Johnson just 
said, not one we have fought before, and the idea of cessation 
of hostilities is so nebulous that it no longer applies and 
that we have to let these guys go? Can we trust that these 
Article III courts won't come to that conclusion?
    Mr. Kris. Well, at one level, you are right: I obviously 
cannot control Article III judges. I admitted earlier I can't 
control the media, and I am happy to make a similar admission 
here.
    But I do have a good deal of faith in our Federal judicial 
system and the judges who are on it. And, of course, if any one 
judge makes an error--and that can happen--we have appellate 
review.
    Mr. Conaway. The Judiciary Committee, earlier this week, 
heard some gut-wrenching testimony about a poor soul who was a 
nerdly, scientist geek who was trying to develop a fuel cell, 
and he wanted to move from his mother's basement to Alaska. And 
he knew that these chemicals couldn't--that he was using 
couldn't be flown to Alaska, so he gives them to a UPS guy, 
clearly marks ``Ground'' on the shipping document, not knowing, 
of course, that UPS flies everything up there. So he flew 
something up there unintentionally.
    We arrest him, put him in jail. While he is in jail, the 
chemicals that the other--the other chemicals he has had, the 
EPA decides that he has abandoned those chemicals. The 
abandonment occurred while he is in jail, in our custody. This 
pour soul does 17 months on the EPA charge in one of your 
Article III courts.
    And so, your--you know--and that is an unfair accusation to 
try to characterize the entire system, because the entire 
system is good. But there are rogue events, anecdotal events, 
that cause me great concern when we have got a prosecutor on 
one side and a judge on the other side who couldn't look at the 
facts there and go, ``Goodness gracious, this is nuts.''
    So can you give me great confidence that this--it is even 
more important in this arena that we don't let these guys go.
    Mr. Kris. I mean, I think--I am obviously not familiar with 
that case, as you know.
    Mr. Conaway. I know.
    Mr. Kris. I mean, I think the lesson of that is, I guess, 
that, even in a system like Article III, where you have the 
largest number of checks and balances and unquestioned systemic 
legitimacy, mistakes are possible. This is a human endeavor.
    Mr. Conaway. Yeah.
    If we tried KSM, Khalid Sheikh Mohammed, and he is 
acquitted, worst of all circumstances, he is acquitted, can we 
still hold him, Mr. Johnson? Or will we still hold him, is a 
better question.
    Mr. Johnson. Well, I hesitate to give you a prediction 
based on particular circumstances.
    Mr. Conaway. So there is a chance we wouldn't hold this 
guy?
    Mr. Johnson. I said earlier in response to another question 
that it is my view that, if you have detention authority, law 
of war authority to hold a dangerous person, that is true 
irrespective of what happens in a prosecution.
    Mr. Conaway. All right, that is fair. Thank you.
    I yield back.
    The Chairman. Mr. Larsen, the gentleman from Washington.
    Mr. Larsen. Thank you, Mr. Chairman.
    And, gentlemen, thank you for coming.
    I was one of the four Members who were down there on Monday 
at Guantanamo. I was there in January 2002, as well, and got 
to, sort of, see the bookends of the physical facilities. And I 
have to say that the facilities down there are certainly much 
improved over what we saw in January of 2002.
    And to echo Mr. Johnson's comments about the 
professionalism of the folks down there, I want to echo that. 
It is really always a sight to behold whenever we get to travel 
overseas and visit our men and women in the military and see 
the jobs they do. They are doing a great job under difficult 
circumstances.
    With regards to the Office of Military Commissions 
prosecutor conversation that we had down there, I think he did 
make his own forceful case for military commissions. I wouldn't 
expect anything otherwise. And he provided some conjecture 
about what might happen because the hearings process has been 
stayed.
    But, I guess, what may be may not be, as well. And, you 
know, it is tough to say that his prediction would come true or 
not, in part because we didn't have the opportunity to have the 
same kinds of discussion with the Office of Military 
Commissions-Defense [OMCD]. And so I made the point that maybe 
we ought to have a chance to chat with the OMCD folks, as well, 
and look forward to how they see the process and what kinds of 
concerns that they have. Because I think that we need to hear 
both sides in order to have a better discussion and more 
informed discussion as we move forward.
    With regards to the MCA and the Senate--of course, we 
didn't have language in the House version, and we will have to 
sort things out now that the Senate has passed.
    But, Mr. Johnson, could you discuss the Administration's 
position on this debate about voluntary versus reliability 
standards in the use of evidence and why the Administration is 
where it is on this issue?
    Mr. Johnson. The Administration believes that a 
voluntariness standard is the right way to go. And we believe 
that for this reason: The current law and the current bill have 
a totality of circumstances reliability standard. We think 
that, as these prosecutions progress, more judges will likely 
impose a voluntariness requirement, and we think, therefore, it 
is important that they get it right.
    And so, what we in the Administration are advocating is a 
voluntariness standard--and there is language we can give you 
specifically--tailored to military operations, military 
intelligence collection circumstances, so that, consistent with 
the law, the judges get this right.
    We are not talking about imposing a voluntariness standard 
on soldiers at the point of capture. I want to be perfectly 
clear about that. And one of the things the Senate bill does is 
specifically exempt from military commissions any Miranda 
requirements, Article 31 of the UCMJ.
    What we are talking about is a voluntariness standard, 
frankly, that is not far from what Admiral McDonald advocated 
the other week when he was here. I think the JAGs advocated 
that voluntariness be a factor in the reliability standard.
    Mr. Larsen. They basically argued reliability with 
voluntariness as a factor.
    Mr. Johnson. Correct.
    Mr. Larsen. And it sounds like you are arguing 
voluntariness with reliability as a factor, in some sense.
    Mr. Johnson. We are arguing that voluntariness should be 
the standard. But, really, what we are saying is not that 
different than what the uniformed lawyers are saying. We are 
urging a voluntariness standard that takes account of the 
circumstances of how the military does its job.
    Mr. Larsen. Well, as I understand your argument, it gets at 
some of the heart of the MCA. What I hear you saying, I guess, 
is you are trying to perhaps anticipate what a future trial 
judge or a series of future trial judges may determine about 
the use of the reliability standard versus the voluntariness 
standard and, by anticipating they may be moving to the 
voluntariness standard, put it in the MCA now so we don't have 
to go back and change it later.
    Which has been one of the problems that we have had, I 
think, in the past with the MCA in getting it wrong and being 
told by judges to go back and fix what was wrong, which is why 
we are here today.
    Mr. Johnson. I want to echo what the chairman said, which 
is that it is important that we have a process that is 
sustainable, that brings convictions that can be upheld on 
appeal.
    Mr. Larsen. And, quickly, the yellow light is on, I will 
ask a question, material support of terrorism. The 
Administration--Where does the Administration sit on material 
support of terrorism as a chargeable offense in the MCA? Are 
they supportive of it or not? And why?
    Mr. Johnson. We think Article III prosecutions are for 
violations of the Federal criminal law and that military 
commissions are for violation of the laws of war.
    We looked at it carefully and concluded that the historical 
precedent for material support as a law of war offense was 
questionable. And, therefore, material support should be 
prosecuted, if it is prosecuted, in Article III Federal courts.
    Mr. Larsen. Thank you.
    The Chairman. Thank the gentleman.
    Mr. Coffman from Colorado.
    Mr. Coffman. Thank you, Mr. Chairman.
    There seems to be a shift in this Administration to view 
what I would call acts of war as criminal justice issues, where 
the global war on terror is now ``overseas contingency 
operations,'' and terrorist attacks are now ``man-caused 
disasters.''
    But we are a Nation at war, and we are fighting against 
disparate, irregular forces bound by an ideology who often use 
terrorism as a tactic. All enemy combatants should be detained 
until this war is over with, regardless of how long it takes 
for us to win this war.
    Only if there are alleged violations of war should these 
enemy combatants go through--be tried through a judicial 
process. But even if they are found innocent of that, they are 
still enemy combatants and should be detained, again, for 
however long it takes us to win this war.
    And I would like to know, is this the Administration's 
view, that acts of war are criminal justice issues?
    Mr. Kris. Congressman, I think a couple of points on that.
    First, the President has made clear, and I want to echo it: 
We are at war. We need to win that war. We need to defeat our 
adversaries.
    To do that, we need to use all of the tools in our toolbox, 
all elements of national power consistent with the rule of law. 
That includes military techniques, intelligence techniques, 
diplomatic techniques, and anything else that is consistent 
with the rule of law and that will help us win.
    And it includes also military justice, prosecutions in 
military commissions, and, where it is appropriate and 
effective, prosecutions before Article III courts.
    I want and I think the Administration wants to be able to 
use whatever tool is the most effective under the circumstances 
to allow us to win.
    Mr. Coffman. But you do not believe that enemy combatants 
should be detained until this war is won.
    Mr. Kris. No, on the contrary, I think the Supreme Court 
has made clear that, under the authorization to use military 
force, there is authority to detain. And we are, in fact, 
detaining many people under that theory now. It is being tested 
in habeas corpus proceedings, but we are certainly doing it.
    At some point, the Supreme Court may----
    Mr. Coffman. Excuse me, but I think you missed my point. 
And my point is this, that there are two levels. I was an 
infantry officer; I wasn't a JAG officer. And I faced--I have 
been face to face with the enemy. And I will tell you this, 
that--a couple points. Number one, we are a Nation at war. And 
so the question is, enemy combatants ought to be detained so 
long as we are a Nation at war. And the other issue is, when 
there are violations of war, of the laws of land warfare, then 
no doubt those people should be tried.
    But I think we have this fuzzy-headed view that, when 
somebody is plucked off the battlefield, that they need to go 
through some judicial process to determine whether or not they 
should be detained. And I think that--and you say it is the 
policy that they can. The question is, we should have an 
absolute policy that people that are enemy combatants will be 
detained until this war is over with.
    Mr. Johnson. Congressman, the President agrees with you. We 
are at war. He said that as recently as May 21st.
    Given the nature of the conflict, there is not going to be 
a surrender. There is not going to be a fixed date for a 
surrender, which is why it is appropriate for those we are 
detaining under our law of war authority to have some form of 
periodic review. Because there may be a point in the future 
where that person is deemed no longer a threat.
    Mr. Coffman. If--the person--Well, we have released people 
who we thought were no longer a threat that are back on the 
battlefield. So our ability to decipher that isn't very good.
    You know, again, I think that this view--that there is a 
view that this is all a criminal justice issue, that acts of 
terrorism are law enforcement problems. And, as somebody who 
served in Iraq in 2005, 2006, I want to tell you for the troops 
on the ground there is a different reality than exists then for 
this Administration.
    Mr. Chairman, I yield back the balance of my time.
    The Chairman. Thank the gentleman.
    Before I call on Mr. Courtney, Mr. Kris, when does the war 
end?
    Mr. Kris. Oh, I am sorry, I, as Mr. Johnson said, that is 
very difficult to predict. This is a war unlike other past 
wars. And I think, as he said earlier----
    The Chairman. We know that. But when, in your legal 
opinion, when does the war end?
    Mr. Kris. I don't know if that is so much a legal judgment 
as it is a factual and military judgment as to when the war 
ends. When the adversary is defeated, that would be one ending 
point. I mean, if you are getting at--and I don't----
    The Chairman. Why don't you do this for me? Answer that for 
the record. Go back and think about it and send us an answer. 
When does the war end? Because, at that moment, those 
detainees, as bad as they are, under the law of war, would be 
freed.
    Mr. Kris. I agree with you.
    The Chairman. Am I correct?
    Mr. Kris. Yes, I think that----
    The Chairman. So I think it would be helpful to our 
committee if you would do some research and send us an answer 
to the question, for the record, when the war ends. Under what 
circumstances does the war end? And spell it out for us. You 
are a good lawyer; you can do it.
    [The information referred to can be found in the Appendix 
on page 77.]
    The Chairman. Mr. Courtney.
    Mr. Courtney. Thank you, Mr. Chairman.
    Mr. Chairman, listening to some of the questions, it seems 
like there has almost been an assumption that this 
Administration walked into office with a static population at 
Guantanamo Bay and that we are, sort of, moving from that 
number of 240 which existed back in January to where we are 
today. I mean, the fact of the matter is that there were over 
700 people that were detained at Guantanamo Bay. Isn't that 
correct, Mr. Johnson?
    Mr. Johnson. Yes.
    Mr. Courtney. And so when President Obama took office and 
there were only 240 in that facility, my math tells me that 
about 540 people have been transferred or released, whatever 
term you want to use, before he even stepped foot into the 
White House. Isn't that correct?
    Mr. Johnson. That is correct, yes.
    Mr. Courtney. So there obviously has been a process that 
started with the prior Administration of using national 
security as the measuring stick for evaluating the decision to 
hold people or to transfer them back to other countries. I 
mean, that is an obvious conclusion that you have to deduce 
from just the math. Isn't that right?
    Mr. Johnson. Correct.
    Mr. Courtney. So--and when the President clearly stated 
that, after, sort of, going through this remaining minority of 
detainees that are at Guantanamo Bay and sorting through who is 
going to go to military commissions and who is going to go to 
Article III courts, that--and he was very up front about the 
fact that there may be this other category who don't 
necessarily easily fit into those referrals--that the 
Administration's position is that we have the right to hold 
them under the law of war. Isn't that correct?
    Mr. Johnson. Yes. And I think the President has also made 
clear that the safety of the American people, consistent with 
the rule of law, is the paramount concern.
    Mr. Courtney. So, you know, there really is no fuzziness 
here about what the Administration's position is, in terms of 
protecting this country and using a non, you know, sort of, 
criminal police measuring stick, in terms of what the 
Administration's policy is. I mean, he is basing that detention 
law--legal opinion on the 2001 authorization which this 
Congress enacted. Isn't that correct?
    Mr. Johnson. Yes, sir.
    Mr. Courtney. So when the Senate did their modification of 
the commissions in the authorization bill, did they touch that 
piece of the system? Or is the Administration still just going 
to ask for us to leave that alone?
    Mr. Johnson. The Senate amendment to the Military 
Commissions Act does not purport to address law of war 
detention; that is correct. And we believe, with respect to the 
current Guantanamo population, that the Authorization for the 
Use of Military Force, as it was interpreted by the Supreme 
Court in the Hamdi decision, provides sufficient authority to 
detain the current population.
    Mr. Courtney. So nobody is going anywhere who, again, in 
the opinion of our military and Administration officials 
believes still poses a threat, whether they are found guilty 
either by plea or trial of an offense in the military 
commission or Article III court because of that policy. Isn't 
that correct?
    Mr. Johnson. That is correct. That is our primary 
obligation to the American people.
    Mr. Courtney. Okay.
    And, lastly, just, you know, Mr. Kris, how many people in 
the Department of Justice do we incarcerate on a given day, 
roughly?
    Mr. Kris. I mean, the Bureau of Prisons has a very large 
population--I think it is a hundred thousand or so--under lock 
and key right now.
    Mr. Courtney. And, I mean, just in my State of Connecticut, 
I mean, there are probably roughly about 20,000 people 
incarcerated on a given day. Obviously, we have a system that 
can accommodate 240 people, individuals, in a safe and secure 
manner. And we prove that every single day, in terms of the 
hard work that people in the Bureau of Corrections do. Isn't 
that correct?
    Mr. Kris. I think that is absolutely right.
    Mr. Courtney. Okay. I yield back.
    The Chairman. Ms. Fallin, the gentlelady from Oklahoma.
    Ms. Fallin. Thank you, Mr. Chairman.
    And I appreciate you gentlemen and your testimony today 
and--about how we treat our enemy combatants, especially on the 
battlefield. But I have a little bit of a different tack that I 
would like to ask you about today, because this deals with a 
situation that is occurring in my home state, in Oklahoma, and 
it deals with our American soldiers and how they are treated on 
the battlefield and their rights in the military court system.
    And since both of you are with the legal system, I would 
just like to tell you about a situation, ask your opinion, and 
then hopefully leave you with some information and ask you 
specifically if you will look into this situation for me as a 
Member of Congress.
    And let me just start out, I heard Mr. Forbes asking Mr. 
Johnson about the goals of the Administration in relation to 
detainees and their rights. And I think you said that the 
Administration's goal is justice for the victim and--of terror 
and also for the U.S. citizens. In other words, there should be 
justice for all when we talk about our military courts.
    And I guess my question is, do you believe American 
soldiers have a constitutional right to a fair trial?
    Mr. Johnson. I believe that, under the UCMJ, American 
soldiers, sailors, airmen have a number of rights to a fair 
trial.
    Ms. Fallin. Thank you. And doesn't an American soldier have 
the right to defend themselves in a combat zone against, say, 
if they were to run up an against a member of al Qaeda that is 
a terrorist and a known terrorist? Do they have the right to 
defend themselves?
    Mr. Johnson. Absolutely.
    Ms. Fallin. Okay. And during a military trial, is it 
permissible for a prosecutor, a government prosecutor, to 
withhold or fail to provide exculpatory evidence to the defense 
of an American soldier?
    Mr. Johnson. Well, first of all, as a former prosecutor 
myself, I hesitate to comment on what somebody did in a 
particular trial or a decision made in a particular 
prosecution. And so, I wouldn't want my comment to be 
interpreted as that.
    Ms. Fallin. Okay. Well, I am asking----
    Mr. Johnson. I know that, as a general matter----
    Ms. Fallin. Yeah, in general.
    Mr. Johnson [continuing]. Prosecutors, the government has 
an obligation to disclose exculpatory evidence.
    Ms. Fallin. Okay, good. That confirms that.
    Okay. So, in your professional opinion, would an American 
citizen, a soldier, be given a fair trial if evidence is 
withheld purposely from the defense that is exculpatory?
    Mr. Johnson. As a general matter--again, I am not 
commenting on a particular case--as a general matter, 
prosecutors have an obligation to disclose exculpatory 
evidence. And, if they don't, there should be consequences.
    Ms. Fallin. Good.
    Okay. So that gets me to a point, and that is that we have 
had a gentleman from my home state--and I am not determining 
guilt or non-guilt on this situation. But what I do want to 
make sure is that, when our American soldiers who are away from 
our country, defending our Nation, and on foreign soil who run 
across enemy combatants that are in that land, that they have 
full rights, too, as American citizens, because they are, of 
course, taking away time from their country and their life and 
defending our country. And we need to make sure that we protect 
them just as much as we give rights to detainees or enemy 
combatants.
    And, in a particular case, there has been a gentleman that 
is First Lieutenant Michael Behenna, who has gone to trial, has 
had a trial, but there have been very deep concerns from my 
congressional delegation in Oklahoma and from others who 
believe that evidence was withheld from the defense of him. And 
he was accused of shooting an al Qaeda member who had just 
killed two of his fellow soldiers in his platoon through an 
explosive device.
    And so, there is some question about whether the trial was 
fair, because not all evidence was presented in court. So we 
have asked for the convening authority to look at the evidence 
and to make a ruling. And, just yesterday, they made a ruling 
that they felt the trial was fair.
    So I guess what I am asking is, I want to give you this 
information and just ask that you would take it back, because 
my goal is just to make sure that our American soldiers have 
every single right that they deserve to have a fair trial, just 
as much as an enemy detainee.
    Mr. Johnson. Congresswoman, now that you mention the case, 
I am aware of the case. The Secretary of Defense has received 
correspondence about the case. Because the case is in the UCMJ 
process, I am limited in terms of what I can do or what the 
Secretary can do to try to influence that, nor should we try to 
do that. But I am happy to look at whatever you ask me to do.
    Ms. Fallin. And all I am asking you is to look at the 
process, not the outcome.
    Thank you.
    The Chairman. I thank the gentlelady.
    Ms. Davis.
    Mrs. Davis. Thank you, Mr. Chairman.
    Thank you both for being here.
    I wanted to go back to one of our HASC [House Armed 
Services Committee] hearings in September of 2006, when Admiral 
McDonald, the Judge Advocate General for the Navy, discussed 
the issue of reciprocity. And the question was whether the way 
in which the U.S. treats detainees impacts the way our service 
members will be treated on the battlefield, something I know 
you are very familiar with.
    And, at that time, he said that, ``I would be very 
concerned about other nations looking in on the U.S. and making 
a determination that, if it is good enough for the U.S., it is 
good enough for us, and perhaps doing a lot of damage and harm 
internationally.'' Now, that was a time that we, obviously, 
were very concerned about what was happening and the impacts.
    Could you--do you share his views on that, that it really 
does make a difference to our troops in the field how we handle 
this process in the U.S. and overseas?
    Mr. Johnson. I hear repeatedly from my military lawyer 
colleagues that reciprocity is important, that we are concerned 
about how our people would be treated if they were captured. 
And it is important, therefore, to get it right for that 
reason.
    Mrs. Davis. Do you have a comment?
    Mr. Kris. I will say I agree. Jeh and I and Admiral 
McDonald testified together a few weeks ago in the Senate, and 
he expressed the same view there, which I found persuasive. And 
he said, and I think he is right, that the legislation that we 
are working on satisfies that reciprocity principle. And I 
think it is an important one.
    Mrs. Davis. Uh-huh. Are there any changes that the Senate 
has made or in our discussions that would cause you any concern 
in those areas? And are some of those issues very differently 
portrayed in the outside world aside from here? Have you seen 
that in any way, that they are being portrayed differently than 
the way you see them?
    Mr. Johnson. Well, this goes back to--well, let me begin 
with this. I think that a big change that the Senate bill makes 
to current law is a ban on the use of statements taken as a 
result of cruel, inhuman, degrading treatment. The old bill, 
the current law, permitted that possibility. And I think that 
that did more to hurt our credibility in the military 
commissions process than any other one thing.
    And so, whatever the House of Representatives decides to 
do, I would hope that you would agree that we should not permit 
the possibility of statements taken as a result of cruel, 
inhuman, degrading treatment. That is certainly not what we 
would want our military to face. And, as a matter of simple 
American values, I would submit that we shouldn't permit it in 
any court system governed by the United States.
    Mrs. Davis. Any other comments?
    Mr. Kris. I agree with that exactly.
    Mrs. Davis. Okay, thank you.
    As we look to transferring--if we find ourselves in a 
position of transferring detainees to the United States, there 
are many of those issues that we are going to be looking at: 
how we structure the proceedings, procedural rules, due process 
rights of course, right to be present during adjudication.
    In that transfer, is there anything that you feel might 
be--might affect any of these considerations? I mean, are there 
some complications that arise as a result of that transfer? And 
what should we be the most concerned about?
    Mr. Johnson. I think we are both pretty confident that 
reform of the Military Commissions Act of 2006, reform of 
military commissions to make it a robust process that more 
closely resembles the UCMJ process is good all around, 
irrespective of where they are conducted.
    Mrs. Davis. Is there anything in the way, appellate review 
rights, other considerations, that would--that you think would 
be at play here that we need to look at further?
    Mr. Johnson. The--in terms of appellate rights, the 
Administration embraces the idea in the Senate bill that there 
ought to be a broader scope of review. I think where we differ 
with the Senate bill is we believe that the appellate court 
should be an internal military court, a court of military 
commission review, plus the D.C. Circuit, United States Court 
of Appeals for the D.C. Circuit, and then on to the Supreme 
Court.
    Mrs. Davis. Thank you.
    The Chairman. Thank the gentlelady.
    Mr. Rooney. I have Mr. Rooney and Mr. Kratovil, in that 
order.
    Mr. Rooney. Thank you, Mr. Chairman.
    You know, one of the advantages of going last is that I get 
to hear everybody else. But it is also a disadvantage, because 
my questions are going to be all over the place. So if you bear 
with me, I just want to touch on a few things.
    The chairman spoke of when the war is over and releasing 
detainees and how, Mr. Kris, you would define the end of the 
war and how difficult that is because it is a war on terror and 
that type of issue, obviously.
    One of the things that I might ask you is, when we are 
talking about the enemy that we have detained, where is this 
enemy from? What country do they fight for? What uniform do 
they wear? What flag do they fight under? The answer to all 
those questions is obviously----
    Mr. Kris. None.
    Mr. Rooney. Right. So those things are all violations of 
the law of war, correct? Or the Geneva Conventions, as we 
understand them?
    Mr. Kris. I mean, they would not be entitled to be 
privileged belligerents or prisoners of war under the Geneva 
Conventions. You are absolutely right about that.
    Mr. Rooney. But my question goes more towards the--what 
eventually you do with them once there is--if we can agree that 
there is something that would be the end of the war. As the 
chairman said, that we would just--they would just be released. 
Is that correct in--when dealing with Khalid Sheikh Mohammed or 
individuals that we have that have violated the Geneva 
Conventions?
    Mr. Kris. No, and that is--no. And it is interesting, in 
the prior discussions we were having, we talked about the 
distinction between detaining someone under the law of war for 
the duration of the hostilities. And there is some question 
about exactly when these hostilities will cease.
    But separate from that is an ability to convict someone for 
violations of the law of war or violations of the criminal code 
and to hold them for the duration of their sentence, which very 
well might go quite beyond the end of hostilities. And that 
will be a fixed sentence imposed by a court as part of a 
prosecution.
    Mr. Rooney. All right. And I just wanted to throw that out 
there and add that element to that conversation.
    You know, one of the things that concerns me--and I know I 
don't have much time--but one of the things that concerns me 
is, when we are talking about the role of the Commander in 
Chief and we are talking about the lawfulness under the laws of 
war, the Geneva Convention, prisoner of war status, Guantanamo 
Bay, which I also visited, you know, there is a lot left up to 
interpretation for the Commander in Chief.
    You talked about, just a few minutes ago, one of the hot-
button issues, obviously, are statements that are elicited from 
cruel or degrading, you know, punishment or interrogation. Up 
until the President started defining certain things, I mean, 
that was arguable. I mean, for some people, it was more obvious 
than others, but there was room for argument.
    My question to you is, as we move forward, the judge 
advocates that were here--and some of the questions, quite 
frankly, that you have been asked to answer involve a lot of 
speculation, and you haven't been able to answer them. The 
judge advocates haven't been able to answer them.
    I think that it is imperative that we do as much as we can 
to be as clear and detailed as possible, so, moving forward, we 
are not caught in, sort of, the cloud of war when it comes to 
how these people are prosecuted. And that is what we are all 
trying to do here today.
    But one of the things that is still kind of out there for 
me is when we are dealing with future detainees or future 
prisoners or whatever you want to call them, specifically with 
regard to habeas, extraconstitutional rights. We talk about 
detainees in Afghanistan and detainees wherever we are going to 
go in the future, with regard to terror.
    What do you specifically foresee us doing to make sure that 
we are as locked in as possible when we pick up somebody--and 
this is kind of an extension of Mr. Conaway's question. If we 
pick up somebody, a bad guy, on the battlefield of Afghanistan, 
who is clearly a terrorist or al Qaeda or somebody like that, 
what rules of criminal procedure are we going to be able to 
follow for that person with regard to habeas for the future; 
and are we going to be able to address that with what we are 
doing here today?
    Mr. Johnson. Congressman, let me try to answer this 
question this way, which is part of the question you asked 
earlier of Mr. Kris. There are no easy, neat, clean answers 
about when this was going to be over and how you treat people 
in the future if the so-called war ends, which is one of the 
reasons why you seek to bring people to justice, so that you 
can get out of that process a long prison sentence.
    In terms of detainees in places like Bagram, we are 
building a new facility. We are putting in place review 
procedures, that I think are improved procedures from what we 
have now, that have been approved at the CENTCOM level by 
General Petraeus. And so I think we are headed in the right 
direction there in terms of our ability to hold these people 
consistent with the rule of law and consistent with what I 
think ought to be our American standards.
    Mr. Rooney. I had about ten other questions but my time is 
up, Mr. Chairman. Thank you very much.
    The Chairman. I thank the gentleman.
    Mr. Kratovil.
    Mr. Kratovil. Thank you, Mr. Chairman.
    Let me begin by thanking both of you for making efforts to 
try to resolve what is clearly one of the most complex legal 
issues that we have perhaps ever faced. And I appreciate your 
trying to find some reasonable compromise, understanding the 
differences in the battlefield versus the legal arena.
    Once again my chairman, in his country lawyer style, has 
hit on the issue directly. The way I see the issue is we have 
detained individuals on a relatively minimal standard under 
laws of war; and we are justified, according to the Supreme 
Court, in continuing custody so long as the conflict continues. 
We are struggling with those individuals because, although we 
have what I would articulate as perhaps an articulable 
suspicion in terms of offenses and their involvement, we don't 
have enough--at least it appears to me--to be sending these 
individuals to the various forums because if we did, we would 
have done so already.
    So the question becomes, once the conflict is over, what do 
we do? And the--asking a bit more directly than the chairman 
did, do you believe, based on the Supreme Court case and the 
dicta contained within it, that following the removal of troops 
from Iraq, are we going to be able to justify continued 
detention of individuals that were detained in the conflict in 
Iraq after the combat troops leave? And if not, what do we do 
then?
    Mr. Johnson. Congressman, Iraq and Afghanistan are 
obviously different situations. As we wind down our presence in 
Iraq pursuant to the security agreement, that does not mean 
that the conflict against al Qaeda and the Taliban is going to 
be over. We are very much in Afghanistan, dealing with the 
threat in Afghanistan right now. And, so I would expect that 
what we are doing will continue there, and part of the mission 
of the U.S. military is capture and detention.
    Mr. Kratovil. Alright. Let us go down a few more--let us go 
down a few years, then. Let us assume that we withdraw from 
Afghanistan. We have these individuals that we believe are very 
dangerous people although, again, not sufficient proof, in our 
view, your view, to bring them before a forum. What do we do 
then?
    And here is what I am getting at. I know we are looking at 
these cases to determine what forums to send them. My question 
is, similar to when I was a prosecutor, is what efforts are we 
making in reviewing them, to acquire additional evidence so 
that we can forward them to these forums and so that we can 
hold them beyond the end of the conflict whether in Iraq or 
Afghanistan?
    Mr. Johnson. That effort, that collection effort is 
definitely ongoing.
    Mr. Kratovil. What does it consist of?
    Mr. Johnson. Through intelligence and military resources 
and avenues, we constantly do that if for no other reason than 
to find out not just how--you know, authority to keep those 
individuals--but, in my view as the military lawyer here, so 
that we can gain information about people we haven't yet 
captured. So we are constantly doing that.
    Mr. Kratovil. Let me--if I have a little more time, with 
regard to the voluntariness issue, are you suggesting that in 
the battlefield if there was a door knocked down and soldiers 
go in and take a statement at gunpoint, are you suggesting that 
the voluntariness standard, even under those circumstances, 
should be used as opposed to a reliability standard? And if is 
so, why?
    Mr. Johnson. What we are suggesting is a voluntariness 
standard that takes account of that circumstance. So in other 
words, in a civilian context, cops and robbers, you try to 
discourage the police from taking statements in those 
circumstances. But that is the mission of the military. The 
military should do that. And so what we are asking for and 
urging is a voluntariness standard that takes account of that 
circumstance and wouldn't necessarily preclude that statement.
    Mr. Kratovil. And, my question to you is, do you think it 
is realistic that our courts are going to find that an 
individual giving a statement under a voluntariness standard is 
going to be admissible?
    Mr. Johnson. You have touched on the very reason why I 
think we need to get it right, why we need to codify a standard 
to take account of that circumstance so that judges don't 
misinterpret a voluntariness standard.
    Mr. Kratovil. Why not have a different standard of 
voluntariness when you are talking about someone who is 
detained in custody in a confined setting, and have a 
reliability standard that applies when you are dealing with 
issues on the battlefield?
    Mr. Johnson. Well, that is very close to what I think we 
are proposing.
    Mr. Kratovil. Okay, thank you. I yield back.
    The Chairman. I thank the gentleman.
    Mr. Hunter, please.
    Mr. Hunter. Thank you, Mr. Chairman.
    Gentlemen, thanks for being here. This is, first, a little 
bit difficult for me to be sitting here with you because, 
frankly, the rules of engagement and what the military lawyers 
do on the ground for guys like me is make life hell, frankly. 
You make things very difficult.
    In fact, I would say that some of the DOD law that exists 
with rules of engagement and how we treat detainees actually 
makes us kill more people because we don't want to capture 
them. I have seen it happen. I have seen guys come in, get 
detained, couldn't hold onto them for one reason or another, 
according to our JAGs, so we release them. Then we kill them.
    And I don't think you understand to a certain point, 
especially most JAGs--in fact, a good buddy of mine that I 
served with in Fallujah was just here. He is in the FBI now, 
but he was a JAG in Fallujah. We have different types, but they 
make it very difficult.
    In Afghanistan we had a JAG with us 24/7, 24/7 watching the 
bad guys. And we saw bad guys doing bad things and the JAG 
would say that we could not do anything for one reason or 
another, couldn't detain them. And you had a three-star general 
relying on an O-3 or an O-4 to give them a decision; and the 
general could override them and strike, but if they did, then 
it would have been against what that JAG said, and obviously 
that general's career would have been in jeopardy.
    But anyway, we will go on to the questions here. And I am 
not an attorney, so try to speak plainly to me, if you don't 
mind. I am at a bit of a disadvantage.
    With the nature of these trials, the way that they are 
going to be, do you think that we are leaning towards holding 
the detainees in our military brigs as opposed to Federal 
penitentiaries?
    Mr. Johnson. I would----
    Mr. Hunter. With the military nature, the way that they are 
going to be tried, is that going into the--and I am not one 
either who thinks that this Administration came in and all of a 
sudden this stuff started. I know in 2007 under the Bush 
Administration, they were looking at Camp Pendleton and Miramar 
in my district in San Diego to put detainees, because they 
thought that would be conducive to trying them in the way that 
they are held there. So does that lead into that process of 
thinking?
    Mr. Johnson. Well, Congressman, let me respectfully 
disagree with your characterization of the rule of law.
    Mr. Hunter. You really can't disagree, because I have been 
there three times and I have seen it. I think I have been there 
more than you have, frankly. So if you want to argue with that, 
I don't think you are going to be able to.
    Mr. Johnson. I have--I have two really good JAGs sitting 
right behind me.
    Mr. Hunter. Good.
    Mr. Johnson. One of them went to law school with the 
President. The other has won commendations and so forth for his 
time in Iraq.
    Mr. Hunter. I am not saying you are not good lawyers. I am 
sure you are very good lawyers.
    Mr. Johnson. And my point is that your JAG lawyers are 
enablers. They empower, they do not prohibit. I am the top 
lawyer of the Department of Defense. I am here to work with the 
United States military to help them get the job done consistent 
with the rule of law. I am not there to stand in the way. And 
so I would like to respectfully disagree with the 
characterization.
    Now, having said that, I do want to address your other 
point. I think that where we are headed is a system where you 
have both systems of justice available for the interest of 
national security to put away the bad guys in one forum or 
another. We need to have both court systems available for law-
of-war violations, for Federal criminal offenses.
    What we have right now is, frankly, a system that could be 
made better, that in the eyes of at least some falls short, and 
we have an opportunity to fix it for purposes of promoting 
national security. And I hope this Congress will take up that 
opportunity and do that.
    Mr. Hunter. Okay. Let me move on, because I don't know if 
that answered either of my questions. Let me--I am going to set 
a time, too.
    When you talk about cruel, inhumane, degrading treatment of 
detainees, do you think we should afford our military the exact 
same thing? Are we going to change boot camp? Are we going to 
change SERE [Survival, Evasion, Resistance and Escape] school? 
Because we humiliate and degrade our marines, and soldiers, and 
sailors and airmen all the time. That is what--I mean, it is 
not fun sometimes being in the military; right?
    Mr. Johnson. Clearly it is not fun sometimes being in the 
military.
    Mr. Hunter. We don't get too much sleep. We are sleep-
deprived; right? We don't always get food. We don't always get 
to eat three meals a day. So we are giving detainees better 
treatment than I got, than those JAGs sitting behind you got.
    I mean, if you went to Ranger School--I don't know if 
either of you went to Ranger School. He is saying yes. I mean, 
he was humiliated and he was degraded. So are we going to make 
that same standard for detainees the same standard that we have 
too?
    Mr. Johnson. Without a doubt, Congressman, I will not 
disagree with you. Being in the military is hard, is difficult. 
You don't always get three meals a day. But this is--please 
understand, sir, this is not about being nice to the bad guys. 
It is about American values, who we are as Americans, how we 
would want our people treated if they are captured.
    There was a discussion of reciprocity a moment ago----
    Mr. Hunter. I am out of time. I think the reciprocity 
argument is absurd. This is al Qaeda. This is evil incarnate. 
And what America does is win wars, and we don't do it with bad 
law. We do it by, you know, killing the bad guys.
    But thank you very much. I appreciate it. Thank you, Mr. 
Chairman.
    The Chairman. I thank the gentleman.
    It appears we have completed our first round. Before I go 
over to the second round--I know Mr. McKeon and some others 
wish to ask some questions--what you are asking of us is to 
look at the Senate language through your eyes and your 
recommendations. And as I understand it, you have five such 
recommendations, and I will try to condense them.
    The first is to prohibit the use of involuntary statements. 
The second is to further regulate the use of hearsay. The third 
is to modify the appellate process. The fourth is to state that 
a charge of material support, is not a commission that may be 
tried in--excuse me--an offense that may be tried in a 
commission. And the fifth is to establish a sunset on the use 
of the commissions. Am I correct?
    Mr. Johnson. Congressman, that sounds right to me. I don't 
know that there is----
    The Chairman. That is what you are doing; am I correct?
    Mr. Johnson. I believe so, except that I think--Mr. Kris 
can correct me. I think that we and the Administration are 
pretty satisfied with the current Senate language on hearsay. I 
could be wrong about that, but I think----
    Mr. Kris. I think our language is----
    The Chairman. It would help if you would be very, very 
clear as to your recommendations to this committee.
    Mr. Johnson. We would be happy to do that. For the record, 
we would be happy to do that.
    The Chairman. Spell it out so we can understand it. Will 
you do that for us within 10 days?
    Mr. Johnson. Yes, sir.
    The Chairman. We would appreciate it.
    [The information referred to was not available at the time 
of printing.]
    The Chairman. Mr. McKeon.
    Mr. McKeon. Mr. Chairman, if I might defer to other members 
of the committee that have questions, I would be happy to do 
that.
    The Chairman. Who--we will just go down the line. Does 
Mr.--okay.
    Mr. Bartlett.
    Mr. Bartlett. Yes. Thank you very much.
    You stated, Mr. Johnson, that we will not release prisoners 
to countries that torture. Does that mean that we have stopped 
extraordinary renditions?
    Mr. Johnson. As a general matter, Congressman, I think it 
is our view that an extradition should occur to bring people to 
justice, not push them away from justice, as a general matter. 
That would certainly be my view, and I think that is the view 
of the Administration.
    Mr. Bartlett. And the extraordinary renditions that we are 
now approving, they are not going to countries that torture.
    Mr. Johnson. I hesitate to comment on specific military 
operations or actions. I just would state that general 
principle.
    Mr. Bartlett. Would it not be a huge contradiction for the 
Administration to tell us that they are not going to release 
prisoners to countries that torture, and then to continue to 
approve extraordinary renditions to countries that they know 
darn well do torture?
    Mr. Johnson. Again, I hesitate to comment on specific 
operations. I am not sure what you have in mind. But as a 
general matter, that is my view and I think that is the 
Administration view also.
    Mr. Bartlett. We have been talking a lot about cessation of 
hostilities. We have no intention of releasing these prisoners 
that we have already deemed to be so bad that we couldn't 
release them even if the court determines that they are 
innocent.
    Why are we talking about cessation of hostilities? Doesn't 
that just create problems for us in the future when we have 
withdrawn from Iraq, withdrawn from Afghanistan, and still hold 
prisoners?
    Mr. Johnson. Well, the question that the chairman asked of 
Mr. Kris is a good one: When does this war end? And there is no 
easy answer to that question. At least I haven't heard one yet 
from an awful lot of very bright people. And so that is the 
reason why we think that we have law-of-war detention 
authority. But I think even the Supreme Court in the Hamdi case 
said circumstances could change, depending on how far out you 
go in this conflict, and it is the reason why we think some 
form of a periodic review of each detainee's situation is 
appropriate, given the nature of this war, because there may 
come a point in the future when that person is no longer a 
threat or they are such that they could be transferred to some 
other country with appropriate security guarantees.
    Mr. Bartlett. Questions asked by Mr. Forbes and Mr. Conaway 
elicited answers from you, both of you, I think, that indicated 
that if the courts found a detainee innocent that we knew was a 
really bad guy, that we weren't going to release him. That begs 
a couple of very interesting questions.
    One of them is: Haven't we already judged him guilty by 
determining that he is so bad that no matter what the court 
does, we are not going to release him? And if that is so, why 
do we go through a court proceeding, particularly in a military 
tribunal?
    Sir, there are millions of people in the world that when 
you mention military tribunal, they cringe because of their 
association with military tribunals. I know ours are different, 
sir, but this is psychology; and in this area perception is 
reality, and the reality is that military tribunals have little 
credibility around the world. I think ours are very good. I 
have no problem with them. I am not talking about the problem I 
have with them; I am talking about the problem that the world 
has with them.
    It just makes the point that I made, sir, in my first round 
of questioning. I am not sure why we are here. I am not sure 
why we bought this trouble. I try to follow my mother's counsel 
that you shouldn't borrow trouble. If we yet could move these 
prisoners to an international court, why don't we do that? We 
bragged that this was not our war. We bragged this was a 
coalition. Why are we burdened with this as a single nation 
when this was a war of a coalition? Why don't we move these 
prisoners to an international arena and avoid all of the 
national stigma that we are going to get from these 
proceedings, no matter what we do and how careful we are?
    Mr. Johnson. Well, Congressman, I would urge that we not 
think about a decision to detain a captured belligerent as an 
adjudication of guilt or innocence. I think the comment that 
was made earlier was that that is not law enforcement--that is 
not a law enforcement context.
    When the United States military makes a determination that 
they should detain a belligerent on the battlefield, that is 
not an adjudication of guilt. That is a decision, for reasons 
of national security and safety, that that person needs to be 
retained--detained so that they don't return to the fight. That 
is very different from an adjudication of guilt or innocence.
    I would try to answer your question by saying that military 
commissions, in my judgment, should not be judged as in any way 
second-class justice. You say that there is that perception out 
there. Well, let me try to address that perception. Our JAGs 
cherish the UCMJ. They cherish notions of justice. There are 
some excellent JAGs that I work with every day who are 
committed to that process.
    The Chairman. I thank the gentleman.
    It appears Mr. Forbes is next.
    Mr. Forbes. Thank you, Mr. Chairman.
    And to Mr. Johnson and Mr. Kris, thank you both for being 
here. I know it is tough. I know it is long. But you keep 
saying you want us to get it right. We can't do that unless we 
ask tough questions.
    Mr. Kris, you told me earlier that you wanted to talk about 
the Administration's position. I am going to ask you about 
that, if I can, on some of these issues. When was the last time 
that you were at Guantanamo Bay on behalf of the 
Administration, or in your capacity?
    Mr. Kris. It was sometime within the last few months, I 
think.
    Mr. Forbes. When you were down there, you noticed the 
security that we had for many of the detainees because often 
times they are throwing feces through the door, urine through 
the door. We have double doors on some of the detainees. We 
have guards that are well-trained, as everybody talked about 
the professionalism here, looking on each prisoner every three 
minutes. They don't move anywhere unless they are with a naval 
officer. They are also shackled when they are getting 
interrogations, questioning, or when they are having medical 
treatments, because they could very easily grab a pin and stab 
it through a nurse's eye. That is what all the professional 
people told us when we were down there.
    Mr. Courtney raised the suggestion earlier about the 
general prison population in the United States. Is the 
Administration even contemplating putting those prisoners with 
the general prison population in the United States? Is that 
even a possibility?
    Mr. Kris. I think the answer to your question is no, for a 
variety of reasons----
    Mr. Forbes. And, if the answer is no, then it is 
meaningless what Mr. Courtney raises about the general 
population.
    Mr. Kris. Well, I am not--I mean--in fairness----
    Mr. Forbes. Let me ask you a follow-up question. You can 
respond any way you want to, in written statements. But where 
do we have in the United States that type of security, and what 
kind of capacity do we have there now to be able to put these 
prisoners?
    Mr. Kris. Well, I think there is two different questions 
there. One: Should it be a BOP [Bureau of Prisons] facility; 
that is, a Federal criminal civilian facility, or a military 
base or military facility in the United States? So that is one 
distinction. With respect to just the BOP side of it, I think 
if I have the numbers right, that we have about more than 200 
terrorism-related people already in custody, including 33 at 
the Supermax facility----
    Mr. Forbes. But the Supermax facility, isn't that 95 
percent full all the time, according to what the Department of 
Prisons has told us or the Bureau has----
    Mr. Kris. That number sounds plausible, but I guess the 
point is we can hold some very, very bad people.
    Mr. Forbes. All right. Let me follow up on that. You looked 
also at the tribunal, the facilities that we built down in 
Guantanamo Bay to be able to house these military proceedings. 
You also know it is very important that is the only one SCIF-ed 
in the United States, because we have security matters that 
could come up and we have to have a 40-second delay between 
testimony and between statements and between when it is 
released to the people watching.
    We were told there is not another facility in the United 
States that has those capabilities, or like that. Do you 
disagree with the information we were given at Guantanamo Bay?
    Mr. Kris. I think this is something Jeh--Mr. Johnson----
    Mr. Forbes. I will let Mr. Johnson answer that if he could.
    Mr. Johnson. The facility you referred to is first-rate, 
absolutely. It is an expeditionary facility. It was built that 
way. It was built with the intention that it someday would be 
moved.
    Mr. Forbes. If--you mean you are talking about moving that 
facility to somewhere in the United States? Is that even a 
possibility?
    Mr. Johnson. If we moved the detainees, we would move the 
facility.
    Mr. Forbes. Then if you did that, and you only have one of 
these facilities, you wouldn't have--or even entertain the 
possibility of transferring these individuals across the 
country, back to the trial proceedings, because they have 
motions and everything else. You would have to locate those 
prisoners near in conjunction with that facility; isn't that 
true?
    Mr. Johnson. Ideally we would keep the detainees who are 
being prosecuted in military commissions someplace close to the 
facility.
    Mr. Forbes. So everybody that you would have decided that 
is going to be prosecuted through a military commission would 
need to be located near that site; isn't that correct?
    Mr. Johnson. That would be my optimum solution. Whether it 
actually happens that way, I am not sure. But that would be an 
efficient way to do it; yes, sir.
    Mr. Forbes. Would the Administration even entertain putting 
them in other parts of the country and transferring them, with 
the security risk that might be present there, to the hearings 
they would have before the military tribunals and the actual 
proceedings that would take place there?
    Mr. Johnson. Ideally, as Mr. Kris would tell you, in 
dealing with--with civilian criminal defendants who are 
prosecuted, you want to keep them close to a courtroom.
    Mr. Forbes. And, Mr. Johnson, my time is almost up. My 
question is: Would the Administration even entertain not doing 
that?
    Mr. Johnson. That would not be--that would not be an 
efficient scenario.
    Mr. Forbes. Thank you.
    Mr. Chairman, thank you so much for your patience, and I 
yield back.
    The Chairman. Thank you very much.
    Mr. Conaway.
    Mr. Conaway. Yes, sir. In the interest of prolonging the 
misery of our panelists, I do want to talk again, back on the 
forward-looking issue, and that is the authorization of use of 
force. We had testimony from one of your colleagues last year 
that said: In my professional opinion that it would be both 
constitutional and prudent to confirm the military's authority 
to detain al Qaeda, Taliban, and associated forces.
    It was a Mr. Kadis that testified last--last year. He was a 
Bush appointee, I suspect.
    Mr. Kris, your thoughts on that?
    Mr. Kris. If I understand the--excuse me--if I understand 
the question correctly, I think the President believes that 
with respect to the Gitmo population----
    Mr. Conaway. Again, I am not--I couldn't care--this 
question has nothing to do with Gitmo. This is a forward-
looking question. We have got a Judge Bates who has said that 
habeas corpus applies to Pakistanis taken in Pakistan and 
brought to Afghanistan. And so please don't go back to Gitmo.
    Mr. Kris. I beg your pardon.
    Mr. Conaway. You can go back to Gitmo all you want, but 
this is a forward-looking question.
    Mr. Kris. I think with respect to forward-looking, I mean 
to the extent that we need to have long-term law-of-war 
detention, that is something I think the President has made 
clear he wants very much to work with Congress on. And if we 
need it, I think it might be something that we would consider 
statutory authority for. That is getting out ahead, because 
right now we are focused on the near term. I don't want to go 
back to Guantanamo, but it is----
    Mr. Conaway. So are you planning to proffer that 
legislative fix that you believe is necessary? We all want to 
be able to make sure that the President has got all the 
authority he or she ultimately needs to deal with this issue. 
Have you got legislation in mind yet?
    Mr. Kris. No. We really--I don't think we are there yet.
    Mr. Conaway. All right. Just one last thing, Mr. Chairman.
    Other than public opinion, in terms of--and how we can talk 
about Gitmo. Other than public opinion, is there any--what 
other reasons do we have for closing that facility? Will these 
prisoners be safer somewhere else? Will they be better cared 
for somewhere else? Will it be cheaper somewhere else? Is the 
treatment better? I mean--is there anything other than just 
our--it is legitimate, Mr. Bartlett--is there any rational 
reason, given that we have got trillions of dollars of pending 
deficits ahead of us, that we would spend new money on 
replicating Gitmo somewhere else in the United States?
    Mr. Johnson. The reason to close Guantanamo, sir, is not 
just some lofty notion of symbolism. Lots of people, a cross-
section, bipartisan, from John McCain, George W. Bush, Barack 
Obama, have said Guantanamo should be closed. Why have they 
said that? Because Guantanamo is a bumper sticker for al Qaeda.
    Mr. Conaway. Okay. So you are still talking about public 
perception. I am saying--is there? Help me----
    Mr. Johnson. I am talking about national security, sir. I 
am talking about this enhancing national security by closing 
this facility.
    Mr. Conaway. Okay. So if we replicated Gitmo, and it is--as 
you said, we are going to move it into the United States, 
doesn't the bad guy still have the exact same issue? So it 
really is about the perception that we are dealing with and not 
any of the mechanics.
    You said earlier in your testimony that--and I agree with 
it, having been there myself--that this is a--you couldn't keep 
these people in a facility any better than what they are going 
to be kept in. In fact, when we move them into a Federal 
prison, they will probably have some course of action against 
us for having lowered their standard of living by moving them 
into the--into a prison here in the United States, given what 
they are coming out of in Gitmo. But is there anything besides 
just perception, written large?
    Mr. Johnson. There are tangible national security reasons 
why----
    Mr. Conaway. That are unrelated to perception.
    Mr. Johnson [continuing]. The facility needs to be closed, 
and we are determined to do that.
    Mr. Conaway. All right. So we will spend new dollars----
    Mr. Johnson. And, sir, I can tell you that for high-value 
individuals who we determine we must detain, we will detain 
them in a facility as secure, if not more secure, for the 
safety of the American people. That, I think I can give you 
some pretty good assurance on.
    Mr. Conaway. Okay. I have got no question. This whole false 
argument that they might escape from whatever facility we keep 
them in is a red herring. I don't think anybody in their right 
mind thinks any of these people will ever escape.
    So anyway, thank you, Mr. Chairman. I yield back.
    The Chairman. Thank you. Before I call on Mr. McKeon, does 
anyone else wish to ask a question?
    Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    First I would like to, you know, clarify one of my 
statements so I don't get chased down by a JAG tomorrow myself. 
We didn't release somebody and then shoot them; we had somebody 
that we had to release, found them in Fallujah again, and they 
were fighting us. And we saw them again. They had been killed 
at that point.
    And also I understand that JAGs are enablers. I am 
talking--but the way that they have to do it, they have to play 
around the law as well. They have to try to make things work 
for us on the ground that is law that is made here by DOD, and 
it makes it difficult for everybody on the ground trying to 
make things work.
    But the JAG Corps itself I think is good. But it is the law 
here that they have to deal with. So my question is this: And--
If we threaten or we verbally abuse during--and help me out 
here. I am not even leading to any certain line of questioning 
for any particular answer. If we bust down a door and we 
threaten somebody, you know, shove a rifle in their face, kick 
them down, yell at them, threaten them verbally to get an 
answer out of them and they give that answer, what does that 
count as in this whole scheme of things?
    Mr. Johnson. Well, again it depends on the circumstances. 
What we are advocating is a voluntariness standard that takes 
account of that battlefield reality.
    The other point I would make is that we can't let the tail 
wag the dog here. We can't let the law enforcement mission, 
which is an important one for national security, overcome the 
essential mission of the United States military. And that was 
part of that letter I read earlier. The military's mission is 
to capture and engage the enemy. That is what they do, and I 
don't want them to do it any way different at the point of 
capture than they do it now, just to make Mr. Kris happy.
    Mr. Hunter. You don't think the MCA is going to change 
anything on the ground? It will be the same as it is now when 
it comes to the actual point of engagement?
    Mr. Johnson. I don't believe that the reforms in the MCA 
that are in the Senate bill, or that the Administration is 
proposing, would or should alter how the military does its job 
at the point of capture; that is correct.
    Mr. Hunter. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Rooney.
    Mr. Rooney. Thank you, Mr. Chairman.
    As quickly as I can, going off what Mr. Hunter was just 
saying, when you talked about voluntary versus reliability--and 
it seemed that Admiral McDonald was sort of saying that, you 
know, reliability with elements of voluntary was the preference 
and--but you were going voluntary with elements of reliability. 
Why is he wrong?
    Mr. Johnson. Well, first I respect Admiral McDonald a lot 
and I respect his views on this issue. It is one he and I have 
discussed extensively. We think that there should be a 
voluntariness requirement versus it just being a factor, 
because we think that military commission judges, courts, what 
have you, are going to try to impose that anyway as we have 
more and more of these prosecutions.
    So as a requirement, we ought to get it right and make sure 
that it accounts for all of the circumstances that Congressman 
Hunter is concerned about. So we are advocating a voluntariness 
standard, but it has got some good language in there that we 
are happy to put forward for the record within the 10 days that 
I think is sufficiently flexible to take account of the 
battlefield. And when you look at it, it is really not that far 
from what Admiral McDonald is saying.
    Mr. Rooney. Okay. And I am assuming that because we are 
sort of going down uncharted territory here, because we are 
fighting a nonconventional-type enemy in a nonconventional war, 
we are sort of setting new rules for what Mr. Hunter--his 
scenario has.
    Assuming we move forward here--and let's just speculate 
country X, a true country, North Korea, China, whoever, and we 
go back to a conventional war, do these rules apply to future 
conflicts, or do they just apply to the conflict that we are in 
now with kind of an enemy that is undetermined, be it 
nationally or under a common flag? Are we setting new rules of 
engagement, new laws of war for all conflicts moving forward; 
or if we fight a conventional war, do we go back to the old 
system?
    Mr. Johnson. Well, the Military Commissions Act and the 
Senate bill, on--by their terms, refer to unlawful enemy 
combatants or unprivileged enemy belligerents. In other words, 
people who violate the laws of war. The bill does not redefine 
the laws of war. It does not redefine substantively the laws of 
war. And as the chairman noted, what we are advocating is a 
sunset provision to deal with changed circumstances.
    Mr. Rooney. Right.
    One last thing and this goes to Mr. Conaway again. You were 
talking about national security, the stigma of Guantanamo Bay. 
I asked Mr. Holder on the Judiciary Committee if the stigma--if 
there is a stigma with Guantanamo Bay, is--does that still hold 
after a trial; evidence comes out, this guy is a really bad 
guy, he needs to be put away for the rest of his life, 
everybody agrees with that, why can't Guantanamo turn from a 
detention center to an actual prison? And Mr. Holder at that 
time said, you know, the stigma is still there. He would, I 
think, agree with you that there may be national security--a 
bumper sticker for al Qaeda.
    What I am saying is, doesn't it take leadership at the 
highest level from you, from Mr. Holder, from the President, to 
say to the world and the global community the stigma is wrong? 
We are holding these people in a first-class facility with 
people that are doing things the best way possible, giving them 
the utmost care with regard to their culture and everything 
else. And not to say that Supermax can't hold them. We know 
that, you know, they--sure, they are more than capable. But why 
do we have to react to what a bumper sticker for al Qaeda might 
say, rather than take leadership and say this is the reality, 
this is the new stigma, this is the new reality? Why can't we 
do that?
    Mr. Johnson. First of all, I think we tried that. Second, I 
think that the leadership to be exerted here is to respond to 
the call of people from both parties, both of the last two 
Presidents, this one and the last one, and say let us get it 
done. Okay, everyone wants to close Guantanamo, or at least a 
lot of people want to close Guantanamo. Let us get it done. Let 
us make the bureaucracy work and impose a deadline on doing so. 
That is what I think the leadership should be doing.
    Mr. Rooney. I understand what you are saying. But again, as 
so many of my colleagues, having been there, having seen the 
facility, having been told how much money we spent there--and 
quite frankly are still spending and still building down there, 
which is insane--but anyway, in this day and age, I think that 
is, you know, part of the problem a lot of us have, that we 
can't sort of redefine what the reality is.
    Thank you, Mr. Chairman. Thank you.
    The Chairman. I thank the gentleman. Before I call on Mr. 
McKeon, let me urge our witnesses that should you have 
additional materials you would like to submit to our committee, 
feel free to do so. But it would be very helpful if you could 
do it within 10 days of today, plus the recommendations that I 
referred to a few moments ago.
    Mr. McKeon.
    Mr. McKeon. Thank you very much, Mr. Chairman. And thank 
you very much for letting us continue. I know this is a very 
important issue to all of us, and I know the chairman is going 
to be going to Guantanamo and will get a firsthand view of what 
is going on down there.
    I referred in my opening statement that my opinion changed 
after having had the opportunity to visit it. All I had seen 
from Guantanamo was the pictures that we all saw a few years 
ago that caused, apparently, this problem, that caused this 
perception that has caused all these problems.
    And I would like to associate myself with the questions of 
Connolly--Mr. Conaway--I gotta get that out of my head. I have 
only known him for several years and I keep wanting to call him 
the wrong name--and Mr. Rooney because, frankly, the comments 
you made, Mr. Johnson, about how things are different down 
there and what the job that is being done down there now-- 
there was an ad in one of our papers here on Capitol Hill, the 
Capitol, a couple of days ago, an ad run by one of our prison 
guards from our Federal prisons asking for more help, more 
guards. And I met with Federal prison guards a few months ago 
and they told me that at times one guard is in a yard with 700, 
750 prisoners, and he said, They could kill me at any time.
    I guarantee if he were in a yard with these prisoners at 
Guantanamo, it wouldn't have to be 700. He would have been 
dead. These are guys that have one purpose in life, and I may 
be generalizing there, but I think that most people that have 
had the opportunity to interrelate with them would have that 
same conclusion.
    I think you indicated that in your testimony that they are 
very dangerous individuals. We have down there a thousand 
guards for these--a little over 200 prisoners, and they are 
very careful and they still have problems. They would go on 
hunger strikes. There are a few leaders that they said they 
have separated, but they still get the word back to the other 
prisoners: We want you to go on a hunger strike; we want you to 
commit suicide; we want you to kill a guard; these kinds of 
things, and they carry out those orders.
    As much security as there is there, I don't think we have 
to worry about terrorist attacks from the outside, which I 
think we would have to worry about anywhere that we had them in 
the States, and it just--it seems to me that if we could do 
what Mr. Rooney suggested, come to a new reality, have the 
leadership really say, look, you know, in this time of economy, 
this time of--we are still at war. We have got real financial 
problems in the country. I think that that facility--the 
courthouse alone costs $12 million. You said they could move it 
somewhere, and I think you are probably referring to inside the 
courtroom, the desks and those kinds of things. The wiring, the 
ability to do the translating, the things that Mr. Forbes 
talked about, would--I think would cost us a tremendous amount 
of money to duplicate anywhere here in the country. I think 
there would be political opposition on a grand order.
    I used to be on a city council. I know what it takes to get 
a building permit to build a building. There would be people 
that would be fighting this thing. The delays would be years, 
not weeks or months, before a facility could be built to handle 
them, to do this situation.
    The prosecutor told us that if he could be allowed to move 
forward, he could wrap this up in three years. And maybe he is 
optimistic. Say, four years; I don't know. You have a better 
feel for that. But to think that we could duplicate what we 
have there, somewhere here in the country, without the 
opposition that would come from it, without the--all of the 
problems that would be associated with this kind of a move, let 
alone the security problems that are involved, I just wish we 
could really step back and take a real look at all of these 
circumstances before we move forward in a judgment--and maybe 
that is why the President asked for a six months--or the 
Commission asked for six months more to look at this. I think 
reality really needs to be brought to bear here.
    I thank you again for what you are doing. I think you did a 
tremendous job of telling your side of the story and carrying 
out what your mission is.
    Mr. Chairman, I thank you for your desire to go down there. 
You are a tremendous chairman for this committee and I 
appreciate all that you do. And with that, I yield back.
    The Chairman. Mr. McKeon, thank you so much.
    Mr. Johnson and Mr. Kris, we appreciate your testimony 
today. Please submit to us what else will be helpful, including 
the official recommendations that we referred to a few moments 
ago.
    [The information referred to was not available at the time 
of printing.]
    The Chairman. With that, we are adjourned.
    [Whereupon, at 1:34 p.m., the committee was adjourned.]
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              QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                             July 24, 2009

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                   QUESTIONS SUBMITTED BY MR. SKELTON

    Mr. Skelton. In Admiral MacDonald's written testimony, he advocated 
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, he seemed to argue 
that the statement should be admitted if the interrogator was acting in 
accordance with the laws of war and the statement was deemed to be 
reliable. 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 he seemed to argue for applying a totality of the 
circumstances analysis to determine the voluntariness of the statement 
and thus its admissibility.
    Do you agree with this balanced approach? If not, why not?
    How would you define ``proximate to the battlefield''? Would 
interrogations that occurred in a Theater Internment Facility fall 
within the second track--that is locations that are not proximate to 
the battlefield? How about at an internment facilities below the TIFs?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. Skelton. Since Congress considered the Military Commissions 
Act, I have warned about the danger of promulgating rules and 
procedures which are constitutionally deficient and subject to court 
challenge. The last thing that we want is to convict an individual for 
terrorism and then have that conviction overturned because of fatal 
flaws in this Act or the accompanying Manual for Military Commissions.
    I believe that the Administration's proposed changes to the Manual 
and the Senate Armed Services Committee's revisions to the Military 
Commissions law itself begin to address my concerns.
    What further changes, if any, are necessary to fix the remaining 
deficiencies in the existing Military Commissions Act or the version 
proposed by the Senate?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. Skelton. In Admiral MacDonald's written testimony, he advocated 
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, he seemed to argue 
that the statement should be admitted if the interrogator was acting in 
accordance with the laws of war and the statement was deemed to be 
reliable. 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 he seemed to argue for applying a totality of the 
circumstances analysis to determine the voluntariness of the statement 
and thus its admissibility.
    Do you agree with this balanced approach? If not, why not?
    How would you define ``proximate to the battlefield''? Would 
interrogations that occurred in a Theater Internment Facility fall 
within the second track--that is locations that are not proximate to 
the battlefield? How about at an internment facilities below the TIFs?
    Mr. Kris. The Administration believes there is a significant risk 
courts will find that the Due Process Clause applies to military 
commission proceedings, and that due process requires that statements 
of the accused offered in the context of commission proceedings must 
have been voluntarily given. A standard based on reliability alone 
would be vulnerable to a constitutional due process challenge in those 
cases where a military commission construed it to allow the admission 
of involuntary statements of the accused. The use of such statements 
might then be subject to reversal on appeal. Accordingly, there arc 
compelling legal and policy reasons to include an express voluntariness 
requirement.
    That said, we believe that any voluntariness requirement for 
military commissions cases should account, consistent with the law, for 
the context in which statements later considered by military 
commissions can occur. Specifically, the Administration has proposed 
the following as an alternative to Sec. 948r of the Senate bill, which 
includes a voluntariness standard for military commissions cases, as 
well as a clearer prohibition on the use of any statement obtained by 
torture or cruel, inhuman, or degrading treatment:

        ``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 the military judge finds that the 
        statement was voluntarily given. In determining whether a 
        statement is 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 of 
        identity of the questioners between the statement sought to be 
        admitted and any prior questioning of the accused.

    The Administration can also support the following, which has the 
support of the Army, Navy, 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. What factors will be considered to determine when an 
end of hostilities has been achieved and, thus, continued detention is 
no longer justified under the Supreme Court's Hamdi decision and the 
laws of war?
    Mr. Kris. A plurality of the Supreme Court concluded in Hamdi v. 
Rumsfeld, 542 U.S. 507 (2005), that ``Congress has clearly and 
unmistakably authorized detention of those individuals covered in the 
2001 Authorization to Use Military Force (AUMF)'' and that ``[t]he 
capture and detention of lawful combatants and the capture, detention, 
and trial of unlawful combatants, by `universal agreement and practice' 
are `important incident[s] of war.' '' Id. at 518-19. According to the 
plurality, the grant of detention authority in the AUMF is best 
understood to endure ``for the duration of the relevant conflict,'' 
although this understanding ``may unravel'' if the circumstances of the 
conflict are ``entirely unlike those of the conflicts that informed the 
development of the law of war.'' Id. at 520-21.
    Based on Hamdi, the Administration believes the detention authority 
provided under the 2001 AUMF, as informed by the law of war, will 
continue so long as the United States remains involved in active 
hostilities against al Qaeda, the Taliban, and affiliated forces. In 
the current circumstances, active hostilities are unlikely to end 
pursuant to a peace treaty, armistice, capitulation, or a dispositive 
military operation. In other contexts, the Supreme Court has indicated 
that ``[w]ar does not cease with a cease-fire order,'' Ludecke v. 
Watkins, 335 U.S. 160, 167 (1948), and that the ``power to be exercised 
by the President [in that case, the power to expel enemy aliens] is a 
process which begins when war is declared but is not exhausted when the 
shooting stops.'' Id. `` `The state of war' may be terminated by treaty 
or legislation or Presidential proclamation. Whatever the modes, its 
termination is a political act.'' Ludecke, 335 U.S. at 168-69. At a 
minimum, we believe active hostilities will continue--and detention of 
enemy forces will be authorized--as long as the United States is 
involved in active combat operations against such forces. In reaching 
the determination that active hostilities have ceased, we would likely 
consider factors that have been recognized in international law as 
relevant to the existence of an armed conflict, including the frequency 
and level of intensity of any continuing violence generated by enemy 
forces; the degree to which they maintain an organizational structure 
and operate according to a plan; the enemy's capacity to procure, 
transport and distribute arms; and the enemy's intent to inflict 
violence.
                                 ______
                                 
                   QUESTIONS SUBMITTED BY MR. MCKEON
    Mr. McKeon. The Department of Justice recently argued in the 
Maqaleh case that the Boumediene decision only affected the habeas 
statute's application to detainees at Guantanamo Bay and nowhere else. 
Does the Administration still hold this view regarding the detainees in 
Afghanistan?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. Why did the Administration decide to favor prosecution 
in federal criminal courts?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. Did the TJAGs advise the Task Force against stating 
this preference for federal courts?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. According to the current Chief Prosecutor for the 
Military Commissions, the prosecution of the 9/11 coconspirators could 
be completed within 24-36 months in a military commission.
    Do you share this assessment?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. How long do you think it would take if the case were 
removed and restarted in federal court?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. Do you think an Article III court can adequately 
protect sources and methods in the same manner as the military 
commissions have proven they can?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. In April, Judge Bates on the D.C. district court 
recognized a right of habeas for particular detainees held at Bagram 
Air Base in Afghanistan, specifically those captured outside of 
Afghanistan. In a recent Wall Street Journal Article, legal scholars 
David Rivkin and Lee Casey asserted that this ruling has already caused 
the military to decrease its operations in the Afghan-Pakistan border 
region to avoid claims by detainees that they were captured outside of 
Afghanistan.
    Do you agree with this assertion?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. Are any of the Task Forces recommending that the 
Administration change the standard to include refusing to transfer if a 
detainee might experience cruel, inhuman, or degrading treatment in a 
potential host country?
    Mr. Johnson. [The information referred to was not available at the 
time of printing.]
    Mr. McKeon. The Department of Justice recently argued in the 
Maqaleh case that the Boumediene decision only affected the habeas 
statute's application to detainees at Guantanamo Bay and nowhere else. 
Does the Administration still hold this view regarding the detainees in 
Afghanistan?
    Mr. Kris. Yes. The Government has appealed the lower court's 
decision in the Maqaleh case, which extended habeas corpus rights to 
detainees held at the Bagram Air Base in Afghanistan. The position 
argued by the Government in that litigation remains the 
Administration's position.
    Mr. McKeon. Why did the Administration decide to favor prosecution 
in federal criminal courts?
    Mr. Kris. Federal courts are well-established, with clear rules and 
years of precedent to draw on. Federal courts also have long-standing 
experience trying complicated cases, including terrorism cases, and a 
proven and recent track record of prosecuting and convicting 
terrorists. That said, the Administration is committed to using all 
elements of national power and authority--including both federal courts 
and military commissions--to defeat our enemy and to advance the 
interests of justice. Under the protocol jointly developed by the 
Departments of Defense and Justice to determine whether individual 
cases will be tried in a federal court or military commission, there is 
a ``presumption that, where feasible, referred cases will be prosecuted 
in an Article III court,'' but that presumption can be overcome where 
``other compelling factors make it more appropriate to prosecute a case 
in a reformed military commission.''
    Mr. McKeon. Did the TJAGs advise the Task Force against stating 
this preference for federal courts?
    Mr. Kris. The Administration's policy that, where feasible, 
suspected terrorists should be prosecuted in Article III courts is 
reflected in Executive Order 13492, signed by the President on January 
22, 2009, his second full day in office. It is also reflected in the 
speech the President delivered at the National Archives on May 21, 
2009. This policy did not originate with the Detention Policy Task 
Force. In addition, the prosecution protocol adopted by the Department 
of Justice and the Department of Defense states that ``there is a 
presumption that, where feasible, referred cases will be prosecuted in 
an Article III court, in keeping with traditional principles of federal 
prosecution. Nonetheless, where other compelling factors make it more 
appropriate to prosecute a case in a reformed military commission, it 
may be prosecuted there.'' The Chief Prosecutor of the Office of 
Military Commissions (who is a JAG) was consulted in the course of the 
negotiation of this protocol and provided advice concerning it. The 
TJAGs' own views about prosecuting suspected terrorists in federal 
courts or by military commission are reflected in the testimony they 
gave before the House Armed Services Committee on July 16. Vice Admiral 
MacDonald, the Navy Judge Advocate General, said, for example, ``I 
understand 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 [military commissions] system 
that can stand on its own.'' The Administration is working with 
Congress to do exactly that.
    Mr. McKeon. According to the current Chief Prosecutor for the 
Military Commissions, the prosecution of the 9/11 coconspirators could 
be completed within 24-36 months in a military commission.
    Do you share this assessment?
    Mr. Kris. How long the cases will ultimately take will depend on a 
number of factors. The Chief Prosecutor's estimate sounds reasonable to 
us.
    Mr. McKeon. How long do you think it would take if the case were 
removed and restarted in federal court?
    Mr. Kris. If these cases were brought in federal court, the 
Department of Justice would indict the defendants promptly and would 
prosecute vigorously. We would like to obtain justice as quickly as 
possible. How long the cases will ultimately take will depend on a 
number of factors.
    Mr. McKeon. Do you think an Article III court can adequately 
protect sources and methods in the same manner as the military 
commissions have proven they can?
    Mr. Kris. Yes. Federal courts have a long, successful track record 
in handling classified evidence and protecting sensitive sources and 
methods, including in international terrorism cases.
    Mr. McKeon. In April, Judge Bates on the D.C. district court 
recognized a right of habeas for particular detainees held at Bagram 
Air Base in Afghanistan, specifically those captured outside of 
Afghanistan. In a recent Wall Street Journal Article, legal scholars 
David Rivkin and Lee Casey asserted that this ruling has already caused 
the military to decrease its operations in the Afghan-Pakistan border 
region to avoid claims by detainees that they were captured outside of 
Afghanistan.
    Do you agree with this assertion?
    Mr. Kris. As you are aware, this issue of habeas rights for 
individuals held at Bagram is the subject of ongoing litigation in the 
Maqaleh v. Gates case, and we therefore cannot comment on the issues 
presented in the case. That being said, the essential mission of the 
U.S. military is to capture or engage the enemy, and the military 
should not be required to change how it conducts effective military 
operations to suit the needs of possible habeas proceedings. We in the 
Administration strongly believe that the detention policy framework the 
Administration is developing, in consultation with the Congress and 
consistent with court rulings, should not and will not cause the 
military to deviate from this mission.
    Mr. McKeon. Are any of the Task Forces recommending that the 
Administration change the standard to include refusing to transfer if a 
detainee might experience cruel, inhuman, or degrading treatment in a 
potential host country?
    Mr. Kris. The Special Task Force on Interrogation and Transfer 
Policies is considering issues raised by the transfer of detainees from 
or through United States custody to the custody of another country. 
Currently, as a matter of law and policy, the United States will not 
transfer anyone to another country if it is determined that it is more 
likely than not that the transferee will be tortured in the receiving 
country. The Task Force is considering whether this standard should be 
changed as a matter of policy.

                                  
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