[Senate Hearing 111-563]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-563
 
   PROSECUTING TERRORISTS; CIVILIAN AND MILITARY TRIALS FOR GTMO AND 
                                 BEYOND 

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON TERRORISM,
                    TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 28, 2009

                               __________

                          Serial No. J-111-40

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------
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57-711 PDF                       WASHINGTON : 2010 

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                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                 BENJAMIN L. CARDIN, Maryland, Chairman
HERB KOHL, Wisconsin                 JON KYL, Arizona
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHARLES E. SCHUMER, New York         JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
RON WYDEN, Oregon                    TOM COBURN, Oklahoma
EDWARD E. KAUFMAN, Delaware
                Bill Van Horne, Democratic Chief Counsel
               Stephen Higgins, Republican Chief Counsel

















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................    95
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     4
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     2
Leahy, Hon. Patrick, a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   144

                               WITNESSES

Edney, Michael J., Gibson Dunn & Crutcher LLP, Washington, D.C...    36
Johnson, Jeh C., General Counsel, Department of Defense, 
  Arlington, Virginia............................................     8
Kris, David, Assistant Attorney General, National Security 
  Division, Department of Justice, Washington, D.C...............     7
Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, 
  D.C............................................................    31
Pearlstein, Deborah N., Associate Research Scholar, Woodrow 
  Wilson School of Public and International Affairs, Princeton, 
  New Jersey.....................................................    34

                         QUESTIONS AND ANSWERS

Responses David H. Michael Edney of to questions submitted by 
  Senators Kyl and Sessions......................................    51
Questions submitted by Senators Feingold and Sessions to Jeh 
  Johnson........................................................    80
Questions submitted by Senators Feingold, Sessions and Kyl to 
  David Kris.....................................................    83
Questions submitted by Senator Kyl to David Kris and Jeh Johnson.    88

(Note: Responses to questions were not received as of the time of 
  printing, August 9, 2010.)

Responses David H. Laufman of to questions submitted by Senators 
  Kyl and Sessions...............................................    90
Responses of Deborah N. Pearlstein to questions submitted by 
  Senator Kyl....................................................    92

                       SUBMISSIONS FOR THE RECORD

Edney, Michael J., Gibson Dunn & Crutcher LLP, Washington, D.C., 
  statement......................................................    97
Johnson, Jeh C., General Counsel, Department of Defense, 
  Arlington, Virginia, statement.................................   118
Kris, David, Assistant Attorney General, National Security 
  Division, Department of Justice, Washington, D.C., statement...   122
Laufman, David H., Partner, Kelley Drye & Warren LLP, Washington, 
  D.C., statement................................................   127
Pearlstein, Deborah N., Associate Research Scholar, Woodrow 
  Wilson School of Public and International Affairs, Princeton, 
  New Jersey, statement..........................................   146

                  ADDITIONAL SUBMISSION FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria determined by the Committee, list:

Human Rights First, ``In Pursuit of Justice'' 2009 Update, July 
  2009


   PROSECUTING TERRORISTS; CIVILIAN AND MILITARY TRIALS FOR GTMO AND 
                                 BEYOND

                              ----------                              


                         TUESDAY, JULY 28, 2009

                               U.S. Senate,
           Subcommittee on Terrorism and Homeland Security,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:41 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, Chairman of the Subcommittee, presiding.
    Present: Senators Cardin, Feingold, Durbin, Whitehouse, 
Kaufman, Sessions, Hatch, and Kyl.

 OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 
                   FROM THE STATE OF MARYLAND

    Chairman Cardin. The Subcommittee will come to order. I 
want to apologize for being a few minutes late. Our caucus 
lunches ran a little bit late, and then we had a vote on the 
Senate Foreign Relations Committee that I had to attend on some 
nominee. So I apologize to our witnesses for starting a few 
minutes late.
    Shortly after taking office, President Obama ordered the 
closure of the Guantanamo Bay detention facility within a year. 
I commended President Obama at the time for ordering the 
closure of the detention center. President Obama is sending a 
clear message to the world that we are reestablishing the rule 
of law in the United States, and that we as a Nation will abide 
by our own international obligations.
    As the Chairman of the United States Helsinki Commission, 
no other concern has been raised with the United States 
delegation by our colleagues in Europe as often--and as in 
earnest--as the situation in Guantanamo Bay. As a Member of the 
House of Representatives in 2006, I voted against the Military 
Commissions Act. At the time, I stated that I believed it was 
not sound legislation, and I thought it was susceptible to 
challenge in the courts. The legislation set up the flawed 
system of tribunals in Guantanamo Bay that ultimately was 
rejected by the Supreme Court.
    Let me make this very clear. I want the U.S. Government to 
bring terrorist suspects to justice quickly and effectively. We 
must remain vigilant against the terrorist attacks on our 
Nation on September 11, 2001. But the system we use must meet 
fundamental and basic rule-of-law standards. Americans have a 
right to expect this under the Constitution, and our Federal 
courts will demand it when reviewing a conviction. We would, of 
course, expect other nations to use a system that provides no 
less protection for Americans that are accused of committing 
crimes abroad and are called before foreign courts.
    This May, President Obama classified the remaining 
Guantanamo detainees into five categories. Today's hearing will 
focus on the first two categories: first, detainees who have 
violated American criminal laws and can be tried in Federal 
courts, our Article III courts; and, second, detainees who 
violate the laws of war and can be tried through military 
commissions.
    I understand that the Detention Policy Task Force, under 
the guidance of the Departments of Justice and Defense, has 
extended its work for an additional 6 months in order to issue 
a comprehensive final report and recommendations.
    Last week, the task force issued a preliminary report, 
along with a protocol for the determination of Guantanamo cases 
referred for prosecution. This protocol lays out factors that 
the Departments of Justice and Defense will consider in 
deciding whether to try a case in an Article III court or in a 
reformed military commission. The protocol states that ``there 
is a presumption that, where feasible, referred cases will be 
prosecuted in an Article III court, in keeping with the 
traditions 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.''
    I might point out that the Senate did enact an amendment to 
the Department of Defense authorization bill which may not be 
totally consistent with the position which the administration 
has taken.
    We do have two distinguished panels of witnesses to today 
to help us in our deliberations, and I look forward to their 
testimony.
    At this point, I would recognize the Republican leader on 
this Committee, Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman, and I, too, thank all 
of the witnesses for being here and presenting testimony today.
    We are going to hear testimony of several witnesses on the 
extent to which military commissions should be used in the 
prosecution of terrorists presently detained at Guantanamo. 
Before they testify, however, I think it is important to recall 
that military commissions have a long history in this country 
precisely because it is widely recognized that procedures 
governing civilian criminal trials lack the flexibility that is 
frequently needed to deal appropriately with the unique 
circumstances presented in war. These include issues regarding 
the admissibility of hearsay evidence obtained on the 
battlefield and the protection of classified information. 
Military commissions can provide a workable solution to these 
issues while still providing the accused with a fair trial.
    Opponents of military commissions like to point out that we 
have successfully convicted terrorists in civilian courts, such 
as Omar Abdul Rahman, the so-called Blind Sheikh. But rather 
than approve the adequacy of civilian courts for terrorist 
prosecutions, these cases actually highlight the national 
security risks inherent in prosecuting terrorists as if they 
were common criminals.
    In the case of Mr. Rahman, for example, intelligence 
information was compromised when the Government was forced to 
turn over to the defense a list of unindicted co-conspirators, 
as required in civilian prosecutions. According to the 9/11 
Commission's final report, the release of that list had the 
unintended consequence of alerting some al Qaeda members to the 
U.S. Government's interest in them. Similarly, Judge Mukasey, 
who presided over several terrorist prosecutions, has described 
how our national security interests were compromised in the 
prosecution of Ramzi Yousef when, and I am quoting now, ``an 
apparently innocuous bit of testimony in a public courtroom 
about delivery of a cell phone battery was enough to tip off 
terrorists still at large that one of their communication links 
had been compromised.''
    But he goes on to say, ``This communication link had 
provided enormously valuable intelligence, but as a result of 
the public testimony, the link was immediately shut down and 
further intelligence information lost.''
    Cognizant of these serious national security concerns, 
Congress has in a bipartisan fashion repeatedly ratified its 
support for military commissions. Indeed, just last week, as 
the Chairman noted, the Senate passed an amendment to the 
National Defense Authorization Act that once again stated that 
military commissions were the preferred forum of the trial of 
terrorists.
    In light of the significant national security risks 
associated with civilian prosecution of terrorists and the oft-
repeated support of military commissions by Congress, I am 
deeply troubled that the Obama Justice Department's July 20 
protocol for Guantanamo case adopts a presumption that 
terrorism cases will be prosecuted in civilian courts. In my 
view, the Justice Department's July 20 policy puts Americans at 
risk unnecessarily. Military commissions have been used for 
over two centuries to bring justice to war criminals, and they 
have done so in a way that is fair to the accused.
    More troubling than what we heard from the Justice 
Department on July 20, however, is what we did not hear. 
President Obama has issued an arbitrary deadline for closing 
Guantanamo by January 22, 2010, less than 6-months from now. 
But, thus far, we know precious little about how he intends to 
do it. I would hope perhaps at this hearing, which the Chairman 
initially entitled ``Closing Guantanamo: The Path Forward Under 
the Rule of Law,'' might provide an opportunity for the 
administration to lay out its plan. Apparently, however, 
administration officials are not ready to talk about the plan, 
if one exists.
    I would add that the Justice Department has been unwilling 
to fulfill even the simplest requests for information. For 
example, I sent a letter to Attorney General Holder on May 29, 
2009, asking for details regarding the terrorists who are 
currently imprisoned in the United States. I reiterated my 
request during the Attorney General's oversight hearing before 
this Committee on June 17th, but still have not received a 
response from the Justice Department.
    It is clear to even the most casual observer that the 
administration will either need to push back its arbitrary 
deadline for closing Guantanamo or bring those presently 
detained at Guantanamo to the United States. Bringing the 
detainees to the United States could, of course, substantially 
curtail the range of options available to detain and prosecute 
suspected terrorists. It could also mean that detainees who are 
not convicted will be ordered released into our country. This 
is understandably of concern to all Americans, especially since 
the Pentagon believes that more than 70 previously released 
Guantanamo detainees have resurfaced on the battlefield. We, 
therefore, need to know whether the administration intends to 
bring Guantanamo detainees into the United States before we can 
have an informed debate on prosecution alternatives.
    Finally, I would note that any plan to bring detainees into 
the United States would likely require congressional action. It 
is, therefore, critical that the administration devise a plan 
and share it with the Congress as soon as possible while there 
are still sufficient legislative days to fully consider and 
debate the available options by the President's self-imposed 
deadline.
    Chairman Cardin. Thank you, Senator Kyl.
    Senator Durbin has requested an opportunity to give an 
opening statement as Chairman of the Human Rights Subcommittee. 
Without objection, Senator Durbin is recognized.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman.
    I think what you have just heard articulated by my 
colleague Senator Kyl is a point of view that has been 
expressed many times on the floor of the Senate, and it can be 
summarized very simply: When it comes to terrorists, American 
courts cannot try them and American jails cannot hold them.
    I could not disagree more. Any discussion of prosecuting 
suspected terrorists held at Guantanamo should begin with an 
examination of the facts. For 7 long years, the Bush 
administration failed to convict any of the terrorists who 
planned the 9/11 terrorist attack, and for 7 long years, only 
three individuals--three--were convicted by military 
commissions at Guantanamo Bay.
    In contrast, look at the record of our criminal justice 
system in holding terrorists accountable. Richard Zabel and 
James Benjamin, two former Federal prosecutors with extensive 
experience, published a detailed study on prosecuting 
terrorists in America's courts, our Federal courts. Here is 
what they concluded: From 
9/11 until the end of 2007, 145 terrorists have been convicted 
and sentenced for their crimes. And according to the Justice 
Department, in just the last 5 months, since January 1, 2009, 
more than 30 terrorists have been successfully prosecuted or 
sentenced in Federal courts.
    To argue that American courts cannot prosecute terrorists? 
Look at the facts. We not only have done it in the past; we are 
doing it now. And this argument that we are somehow at risk 
when we try these terrorists of disclosing sensitive classified 
information, this goes back to a case that was prosecuted 
involving the 1993 World Trade Center, where the prosecutors 
failed to use CIPA, the Classified Information Procedures Act. 
According to these same individuals I mentioned earlier, the 
Government did not invoke CIPA to prevent the disclosure of a 
list of unindicted co-conspirators.
    But the Government has learned from this case, and in later 
terrorism prosecutions, like the trial of the 1998 embassy 
bombers, the Government did use CIPA to protect sensitive 
information. The law is there. It can be used. Terrorists can 
still be prosecuted.
    Now, last month, the Obama administration transferred Ahmed 
Ghailani to the United States to be prosecuted for his 
involvement in the 1998 bombings of our embassies in Kenya and 
Tanzania which killed 224 people, including 12 Americans. 
Indeed, here is what the President said about Ghailani: 
``Preventing this detainee from coming to our shores would 
prevent his trial and conviction for killing 12 Americans. And 
after over a decade,'' the President said, ``it is time to 
finally see that justice is served. That is what we intend to 
do.''
    Some Members of Congress have a different perspective. 
Recently, a Member of the House Republican leadership, Mr. 
Cantor, criticized the decision to bring Ghailani to trial. He 
said, and I quote, ``We have no judicial precedents for the 
conviction of someone like this.''
    The truth is there are many precedents. Let me name a few: 
Ramzi Yousef, the mastermind of the 1993 World Trade Center 
bombing; Omar Abdul Rahman, the so-called Blind Sheikh; Richard 
Reid, the Shoe Bomber; and Zacarias Moussaoui. In fact, there 
is a precedent for prosecuting in U.S. courts the terrorists 
who were involved in bombing those embassies. This is the very 
same attack for which Ghailani is now being prosecuted.
    In 2001, four men were sentenced to life without parole at 
the Federal courthouse in Lower Manhattan, the very same court 
where Ghailani is being tried. The argument that we cannot 
prosecute him in that court, the argument that it is somehow 
unsafe to the people of New York City for him to be 
incarcerated while he is being tried really just defies 
history.
    Susan Hirsch, an American citizen, lost her husband in 
Kenya at the embassy bombing. She testified at the sentencing 
hearing for the four terrorists who were convicted. She 
supports the Obama administration's decision to prosecute 
Ghailani. She said, and I quote, ``I am relieved we are finally 
moving forward. It is really, really important to me that 
anyone we have in custody accused of acts related to the death 
of my husband and others be held accountable for what they have 
done.''
    Mrs. Hirsch supports closing Guantanamo. Some of the people 
who are speaking do not. They have made that very clear. She 
believes it is safe to try Ahmed Ghailani in the United States. 
She said, ``I trust the New York Police Department.''
    Listen to what she said about the critics of the 
administration. ``They are just raising fear and alarm. There 
is a lot more to be afraid of when we have Guantanamo open.'' I 
agree with her. I have faith in the New York Police Department. 
I have faith in our law enforcement agencies. I have faith in 
our court system. They have proven time and again they can rise 
to this challenge.
    Some of my colleagues on the other side argue that we 
should continue to not prosecute Guantanamo detainees in our 
courts because no prison in America can safely hold them. 
Remember that flap? Remember that dust-up as to whether or not 
terrorists could be successfully incarcerated, securely held in 
the United States?
    Senator Lindsey Graham, our colleague on the Judiciary 
Committee, also a military lawyer, said, and I quote, ``The 
idea we cannot find a place to securely house 250-plus 
detainees within the United States is not rational.''
    The record is clear. Today our Federal prisons hold 355 
convicted terrorists. No prisoner has ever escaped from a 
Federal supermaximum security facility. Clearly, our 
corrections officers know how to hold terrorists.
    I recently visited the Marion Federal prison, which used to 
be our supermax, in southern Illinois, and I can tell you what 
the guards told me: ``You can bring any terrorist here that you 
want. We are holding terrorists today. We can hold them safely 
and securely.'' And the mayor of Marion, Illinois, said, ``I 
hope you will allow us to expand this prison. We can do our job 
for America, as we have done for so many years.''
    So let us get to the bottom line. If we do not bring 
suspected terrorists to this country to be prosecuted and 
detained, it is almost impossible to close Guantanamo, and that 
is really what this argument is all about. Who wants to close 
Guantanamo? Not just the President of the United States, but 
General Colin Powell, the former Chairman of the Joint Chiefs 
of Staff and Secretary of State under President Bush, has 
called for closing Guantanamo, as has Republican Senators John 
McCain and Lindsey Graham; former Republican Secretaries of 
State James Baker, Henry Kissinger, and Condoleezza Rice; 
Defense Secretary Robert Gates; Admiral Mike Mullen, and 
General David Petraeus--all have called for us to close 
Guantanamo. They understand that as long as it is open, it is a 
recruiting tool for terrorists around the world.
    It is time for us to turn the page and acknowledge history. 
We have successfully prosecuted and incarcerated terrorists in 
the United States much more successfully than we have been able 
to do with any military commission at Guantanamo.
    I yield.
    Chairman Cardin. Let me introduce our first panel of 
administration witnesses from the Department of Justice and 
Department of Defense. I will introduce them first, and then I 
will ask you to rise to take the oath.
    Our first witness is David Kris, who was sworn in as an 
Assistant Attorney General for National Security on March 25, 
2009. He has worked in both the public and private sectors. He 
served in the Department of Justice from 1992 to 2003. As an 
Associate Deputy Attorney General from July 2000 to May 2003, 
Mr. Kris' work focused on national security issues, including 
supervising the Government's use of FISA, representing the 
Department on the National Security Council, and assisting the 
Attorney General conducting oversight of the intelligence 
community.
    Our second witness is Jeh Charles Johnson, who was 
appointed the General Counsel of the Department of Defense on 
February 10, 2009, following nomination and confirmation by the 
U.S. Senate. In this capacity, he serves as the chief legal 
officer of the Department and the legal adviser to the 
Secretary of Defense. Mr. Johnson's legal career has been a 
mixture of private practice and distinguished public service. 
Mr. Johnson began his career in public service as an Assistant 
United States Attorney in the Southern Division of New York, 
where he prosecuted public corruption cases between 1989 and 
1991.
    Gentlemen, if you would please stand? Do you affirm that 
the testimony you are about to give before the Committee will 
be the truth, the whole truth, and nothing but the truth, so 
help you God?
    Mr. Kris. I do.
    Mr. Johnson. I do.
    Chairman Cardin. Thank you. Please have a seat.
    Mr. Kris, we would like to hear from you.

 STATEMENT OF DAVID KRIS, ASSISTANT ATTORNEY GENERAL, NATIONAL 
SECURITY DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Kris. Thank you. Mr. Chairman, Senator Kyl, and members 
of the Committee, thank you for inviting me to testify.
    Federal prosecution in Article III courts can be an 
effective method of protecting national security, consistent 
with fundamental due process and the rule of law. In the 1990s, 
I prosecuted a group of violent anti-government extremists. 
Like their more modern counterparts, they engaged in what would 
now be called ``law-fare,'' and the trials were very 
challenging. But prosecution succeeded not only because it 
incarcerated these defendants, but also because it deprived 
them of any legitimacy for their anti-government beliefs.
    Military commissions can help do the same for those who 
violate the law of war--that is, not only detain them for 
longer than might otherwise be possible under the law 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 
Congress is a tremendous step in that direction. If enacted 
with the changes that we suggest, it will make military 
commissions both fundamentally fair and effective.
    Now, as the Committee knows, a task force established by 
the President is actively reviewing each of the detainees now 
held at Guantanamo Bay. And although I cannot refer to precise 
numbers, a significant number of cases have been referred for 
possible prosecution. Those cases will be reviewed and worked 
up by joint teams of officials from DOJ and DOD using a 
protocol issued jointly by DOJ and DOD that we have released 
publicly and to which Senator Cardin referred in his opening 
remarks.
    Under the protocol, there is a presumption, where feasible, 
that referred cases will be prosecuted in Federal court, but 
that presumption can be overcome if other compelling factors 
make it more appropriate to prosecute in a commission.
    There are three main groups of factors identified in the 
protocol that resemble the factors that govern forum selection 
by DOJ prosecutors every day, whether the choice is between 
Federal and State court, U.S. courts and foreign courts, or 
civilian courts and traditional military courts martial.
    Perhaps the most important point about the protocol is that 
it avoids too many abstract, bright-line rules. It recognizes 
the existence of two prosecution fora--both effective, both 
legitimate--and provides that the choice between them needs to 
be made by professionals looking closely at the facts of each 
case, using flexible criteria established by policymakers. That 
flexibility, we submit, is the most effective way to defeat the 
adversary consistent with our core values.
    I would be pleased to answer your questions. Thank you.
    [The prepared statement of Mr. Kris appears as a submission 
for the record.]
    Chairman Cardin. Thank you very much.
    Mr. Johnson.

  STATEMENT OF JEH C. JOHNSON, GENERAL COUNSEL, DEPARTMENT OF 
                  DEFENSE, ARLINGTON, VIRGINIA

    Mr. Johnson. Thank you. You have my prepared written 
statement. I would like to make, consistent with that 
statement, a few observations.
    I want to thank the Senate for taking the initiative at 
reform of military commissions, various provisions to amend the 
Military Commissions Act of 2006. As I said in my prepared 
remarks, we in the administration think that the Senate has 
identified the issues for reform, and we have worked with the 
Senate Armed Services Committee to further amend the law.
    Since the bill was reported out of Committee on June 25th, 
the Department of Justice and we in the Department of Defense 
were happy that the language was amended to more closely 
reflect the Classified Information Procedures Act so that 
classified information in military commissions prosecutions is 
treated in a manner similar to the way in which it is treated 
in Federal civilian courts.
    As was noted, we in the Department of Defense and the 
Department of Justice have negotiated and agreed to a protocol 
for determining where cases should be prosecuted. As Mr. Kris 
noted, the operative language is that there is a presumption 
that, where feasible, cases should be prosecuted in an Article 
III court. And then there are three sets of factors for the 
consideration of that issue.
    The one thing that I can say in my experience as a public 
servant and as a former prosecutor, my prediction--and I say 
this with some confidence--is that as we go through these cases 
and we make these assessments, in all likelihood we are going 
to end up doing this on a case-by-case basis looking at the 
evidence, making the assessments case by case. With the 
protocol in place, I am sure that is going to be done 
carefully.
    The review is under way of each detainee that the President 
mandated in his Executive order. The Detention Policy Task 
Force is busy at work, and I just want to add to what was said 
before by noting that a bipartisan cross-section of 
distinguished Americans has called for the closure of the 
Guantanamo Bay detention facility and has done so for a period 
of years, not just as a matter of symbolism but as a matter of 
promoting our national security.
    We know that al Qaeda needs and uses bumper sticker 
messages for recruitment tools, and Guantanamo Bay for years 
has been one of them. There are public accounts of bin Laden 
himself citing Guantanamo Bay as a recruitment tool.
    This administration has imposed a deadline for closing 
Guantanamo Bay. We all know that bureaucracies work best with a 
deadline. In his second full day in office, this President 
imposed a deadline on us for closing Guantanamo Bay. We remain 
committed to meeting that deadline, and we are confident that 
we will get the job done.
    Thank you. Thank you, Senators. I look forward to your 
questions.
    [The prepared statement of Mr. Johnson appears as a 
submission for the record.]
    Chairman Cardin. Well, thank you.
    First, let me say what I said in my introduction. I commend 
the President for his announcements on the closing, the 
intended closing of Guantanamo Bay. I have been representing 
our Nation in many international meetings, and Guantanamo Bay 
has been a very sore spot, and legitimately so, by our friends 
around the world as to the manner in which Guantanamo Bay has 
been handled.
    And I share Senator Durbin's confidence that our Article 
III courts can handle the prosecution of those that we intend 
to hold criminally responsible for their actions.
    I want to first start, if I might. Mr. Kris, you did not 
give us any numbers because you said that you are starting the 
process. But can you just give us what you anticipate to be 
perhaps the percentages that we prosecute, that we want to take 
to criminal responsibility either in Article III courts or in 
military commissions? How many of that percentage-wise would 
you anticipate would be tried in our Article III courts and how 
many would you anticipate would be handled by military 
commissions?
    Mr. Kris. That is a difficult question to answer for the 
reasons that Mr. Johnson and I both articulated, which is that 
under the protocol and under the approach that we intend to 
take here, we are going to evaluate these cases one at a time 
in a very fact-intensive way under the criteria that are set 
out in the protocol. So it is very difficult as a result of 
that approach to make statistical predictions about how they 
are going to shake out.
    I think the basic idea behind this protocol is that we need 
to look at these cases from close to--one at a time, and make 
the best judgment. So I am really not in a position to give you 
a percentage number or prediction.
    Chairman Cardin. If I understand correctly, the decision to 
prosecute in an Article III court would be made by the Attorney 
General after consultation with the Secretary of Defense?
    Mr. Kris. That is correct.
    Chairman Cardin. If a decision is made not to prosecute in 
an Article III court, would that also be made by the Attorney 
General after consultation with the Secretary of Defense? Is 
that also going to be made at that level?
    Mr. Kris. I think that is right, yes.
    Chairman Cardin. And when do you anticipate the process of 
evaluating that, that is, evaluating whether they should be 
recommended for trial in Article III courts or in commissions 
to be completed, that review?
    Mr. Kris. Well, that, too, is difficult to be precise 
about. I can give you some sense of how the process, I think, 
will work that may be responsive to your question without going 
on at too much length.
    Currently, the task force is more than halfway through its 
review of the 240 detainees, and they expect to finish that 
review by October 1st. Some of those then will be referred over 
for possible prosecution. Already a significant number have 
been. And then we will work those as quickly as possible. Some 
of the cases have already been investigated to some degree 
because they were or are pending in military commissions, 
others less so.
    So, again, I do not want to give you a precise date, but 
there is going to be very aggressive working up of these cases 
by these joint DOJ and DOD teams. We want to move forward 
quickly. We want swift and sure justice, and we want to get it 
right.
    Chairman Cardin. Let me go over capacity in Article III 
courts just for one moment. We have heard that the preparations 
for trying a terrorist case coming out of Guantanamo Bay could 
be very time-consuming for the court. It could be very intense 
as far as budget support from the different participants in our 
criminal justice system. Is there any concern about the 
capacity in our Article III courts to handle the workload that 
may be presented? And is that a factor at all in making a 
judgment as to whether to try an individual in an Article III 
court, the cost factor associated with a trial in the Article 
III courts?
    Mr. Kris. We are certainly mindful of both security 
concerns and cost concerns, and we would not want to choke the 
Federal courts with some sudden onslaught. But I think we 
believe that this can be handled. The courts are resilient. The 
Marshals Service is very capable. And I think we believe we can 
work this out successfully. It is going to have to be, again, 
worked out on a case-by-case basis, but we have every 
confidence in our institutions and our capacity to do this and 
do it well.
    Chairman Cardin. Mr. Johnson, let me just ask you about the 
concern that the American Bar Association has expressed in 
regard to military commissions. They raised questions on 
hearsay evidence, on coercive evidence, on the effect of use of 
counsel. And even though there have been some modifications 
suggested, they still raise concern as to whether a military 
commission can, in fact, comply with the standards that the Bar 
Association believes is appropriate.
    Any comment about that? Can you satisfy their concerns?
    Mr. Johnson. I can answer that in two ways. I think that 
the Senate bill does a pretty good job of dealing with hearsay 
evidence dealing with authenticity issues in a way that takes 
account of military operations, intelligence collections 
operations.
    In terms of resources, the ability to prosecute and defend 
these cases, one of my special concerns is to ensure, for 
example, that our defense counsel are adequately trained and 
experienced in handling, potentially, capital cases. There are 
ABA standards for representation of a defendant in a capital 
case. And I have met with Colonel Masciola, our chief defense 
counsel at Guantanamo Bay, to ask him what he needs to provide 
his JAGs with adequate training and resources to deal with 
very, very significant defenses of these cases. And I am open 
and willing and ready and able to help him in that task.
    Chairman Cardin. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you.
    Just taking the questions of the Chairman and the testimony 
both of you gave, would either of you quibble with the 
generalization that while there are different potential 
concerns with both trials in Article III courts and military 
commissions, both can be made to work to try these particular 
kinds of cases? Is that a generalized correct statement?
    Mr. Johnson. Yes, sir, absolutely.
    Mr. Kris. It sounds right to me as well.
    Senator Kyl. Thank you. That is my view as well, and that 
is why I do want to relate to a comment my colleague Senator 
Durbin made. We have had this debate, I think, enough times to 
know each other's lines, so he knows what I am about to say. He 
establishes a straw man and knocks it down. But I am not a 
straw man.
    His argument is, and I quote, that my argument is that 
``American courts cannot try them and American jails cannot 
hold them.'' Nobody ever said that. I did not say it. You all 
do not believe that. I do not believe that.
    My criticism is in the change of the presumption, and that 
is what I want to get to here. It is not a question of can we. 
You have both established that we can do it in either forum. 
The question is: Should we? And there are reasons sometimes to 
go to one forum or the other. You indicated that will be on a 
case-by-case basis.
    My primary question is: Why change the presumption? Is it 
not true, Mr. Kris, that the presumption that, when feasible, 
the Article III courts will be presumed to be the appropriate 
court is a departure from our long tradition of trying these 
kinds of cases in military commissions for the most part?
    Mr. Kris. Well, in the previous administration, I think 
there was a very strong preference for the use of military 
commissions to the exclusion of Article III courts. So I think 
it represents a change from the recent history.
    Senator Kyl. How about going back to World War II and 
bringing it forward?
    Mr. Kris. If you go back, I think, further in time, I think 
you have a history of both civilian and military prosecution. 
And I am not sure--perhaps I have not done enough historical 
research to really draw a solid line that favors military 
commissions over other prosecution options in all cases.
    Senator Kyl. We can do that research and determine whether 
my assumption is correct or not.
    Mr. Johnson, in your written statement, you suggest that by 
changing the unlawful enemy combatant definition to a standard 
that is tied to the 2001 Authorization for the Use of Military 
Force, the administration is now detaining individuals pursuant 
to--and I am quoting--``an authorization granted by Congress.''
    Is it also your view that the 2001 Authorization for the 
Use of Military Force provides congressional authority for 
transferring individuals to the United States and detaining 
them on U.S. soil? Or would that require further congressional 
authorization, in your view?
    Mr. Johnson. Well, as you know, Senator, the Congress in 
the Department of Defense war supplemental added various 
reporting requirements in advance of bringing detainees to the 
United States or transferring to another country, and it is 
certainly Congress' prerogative to request that type of thing.
    I think that the way I would answer your question is, with 
regard to the current population, we believe that the 
Authorization for the Use of Military Force, as informed by the 
laws of war, provides the adequate legal authority for the 
detention of the current population. Now, that is obviously 
being tested in the courts right now. Individually, detainee by 
detainee, virtually every one of them has brought a habeas 
proceeding against the Government. And I believe it is the case 
that that authority exists irrespective of where we hold them.
    Senator Kyl. So it would extend to detention in the United 
States.
    Mr. Johnson. Yes.
    Senator Kyl. So that it would not be necessary to seek 
further authorization from the Congress.
    Mr. Johnson. With regard to the current population, I 
believe that is the administration view.
    Senator Kyl. If either of you wish to supplement that 
answer later, you are welcome to do so.
    Let me ask you another question, Mr. Johnson. You said that 
the Detainee Review Task Force has approved the transfer of 
substantially more than 50 detainees to other countries. Has 
the administration found countries willing to take all of these 
detainees approved for transfer? How many, do you think, other 
countries have expressed a willingness to take them? And if you 
know, how many of the 50-plus detainees were already approved 
prior to the Obama administration taking office on January 
20th?
    Mr. Johnson. Senator, I know that a number had been 
approved for transfer under the process that existed when the 
administration came into office. Transfer is a matter for our 
Detainee Affairs Office in the Department of Defense, as well 
as the State Department. I am sorry, I do not have the exact 
numbers for you of countries willing to take detainees.
    I would add that in terms of transfer it is not simply just 
who is willing to take them. We also seek security assurances 
from the countries that are willing to accept a particular 
detainee so that they do not simply go back to a country and 
return to the fight.
    Senator Kyl. An important point that we fully appreciate. 
Can you give us any notion--is it most, is it some, is it a 
few--that we think can be transferred both because the country 
will take them and the appropriate arrangements can be agreed 
to? And if either one of you would like to answer, but I assume 
this is a proper question for you.
    Mr. Johnson. I hesitate to speculate or make predictions so 
that I could be proven wrong later. I think that--as I noted in 
my statement, we are through more than half the current 
population. The current population is about 229. And I know the 
number that have been approved for transfer so far is north of 
50. It is substantially north of 50.
    Let me add this: The population that we began with were 
people that we thought were readily available for transfer or 
prosecution. So I would not make any assumptions based on the 
current pace about what the end results will----
    Senator Kyl. And I do not mean to put you on the spot here. 
So if either of you would like to supplement an answer for the 
record, you are sure welcome to do that. Thank you.
    Chairman Cardin. Senator Feingold.
    Senator Feingold. Thanks, Mr. Chairman. I am glad that you 
are holding this hearing. On an issue of this importance, and 
with these types of constitutional implications, it is critical 
that the Judiciary Committee stay involved. And I was glad to 
see a presumption in favor of using our Federal courts in the 
administration's protocol for handling Guantanamo cases that 
are referred for trial.
    I want to state for the record that I disagree 
fundamentally with an amendment that became part of the 
Department of Defense authorization legislation last week that 
stated that military commissions should be the preferred forum 
for prosecutions of detainees. In my view, that has it exactly 
wrong. At a minimum, the presumption should be that our 
existing civilian and military legal systems are the proper 
venues for trying these cases, as is laid out in the 
administration's protocol.
    But that does not answer the next question, which is: When, 
if ever, should military commissions be used? I am glad the 
administration supports changes to improve the procedures that 
will be used in military commission trials and that many of 
those changes are moving forward as part of defense 
authorization. But I remain concerned that the military 
commission process is so discredited that it may not be 
possible to fix it. And I have yet to hear a convincing 
argument that other options for bringing detainees to justice--
the civilian Federal criminal justice system and the military 
courts martial system--are insufficient or unworkable.
    So let me start by simply asking you both why the 
Government should retain military commissions as an option at 
all. Mr. Kris.
    Mr. Kris. Well, I guess sort of a four-part answer to that, 
Senator Feingold. It is a good question.
    The first is the point that was made earlier that military 
commissions do have a long tradition in our country, going back 
really in some form to the Revolutionary War.
    The second is that they prohibit, because they are tied to 
the law of war, a slightly different set of offenses, law-of-
war offenses on the one hand and traditional Federal crimes on 
the other.
    The third is that there are some differences. Obviously, we 
do not yet have a final bill on the military commissions side, 
but if the administration's positions are adopted, there will 
be differences with respect to Miranda warnings, although a 
voluntariness test would still be required, with respect to the 
hearsay rules, and there may be different statute-of-
limitations requirements and rules that apply as well.
    And I guess finally, with respect to the application of 
some of these procedural differences and law-of-war offenses, 
you would have military judges who have some familiarity with 
law-of-war and military necessity and operations in charge of 
the trials.
    So those are some of the sort of operational differences 
that we think may be relevant.
    Senator Feingold. I can understand some of those more than 
others. The mere fact that they have been done before does not 
overwhelm me. And I am concerned about any suggestion that 
military commissions would be better because it is easier to 
get a conviction. You did not say that, but a couple of the 
things you mentioned may perhaps suggest that. All I would 
caution is that to have any legitimacy at all, this decision 
should not be outcome-driven. And I am not suggesting that is 
what you were saying, but it is a possible interpretation, if 
you would like to respond.
    Mr. Kris. No, I think your point is a good one. The factors 
that are set forth in the protocol really boil down to the 
strength of the interest in the forum, so, for example, the 
identity of the victims, the location of the offense, that sort 
of thing. Efficiency, if you have joint trials, multiple 
defendants in the same locations. And then a third category of 
other factors to include an ability to sort of display or 
convey the full misconduct of the accused or the defendant, and 
that, again, might vary according to the type of offense that 
is within the subject matter jurisdiction of the forum.
    I agree with you that these need to be principled 
decisions. We want them to be fact-intensive, case-by-case, but 
we do not want to have a system that is or appears to be unfair 
or wholly results-oriented. So I agree with that?
    Senator Feingold. Mr. Johnson.
    Mr. Johnson. Senator, the President has reiterated that we 
are at war with al Qaeda. Military commissions, as was pointed 
out, are older than George Washington. And we believe that some 
offenses that constitute law-of-war offenses should be 
prosecuted in the war/military context, in military 
commissions. By the nature of the alleged conduct, offenses, 
conduct can violate both Title 18 as well as the laws of war, 
and there are some offenses--for example, offenses directed at 
the U.S. military or offenses committed on what we would call 
``the conventional battlefield''--that belong in the law-of-war 
context for prosecution. Our JAGs believe that. Our commanders 
believe that. I believe that, and the administration believes 
that.
    So what I would urge is that we reform military 
commissions, we adopt a credible process so that we have 
alternatives available to promote national security.
    Senator Feingold. I'd like to ask you about one other 
aspect of this. We all know that prior versions of military 
commissions have been roundly criticized, both at home and 
abroad, and I, again, appreciate the efforts to make the 
procedures more fair. But I remain concerned about how they 
will be perceived and how that will affect our broader 
counterterrorism efforts.
    Let me read you a letter sent to the President in May by 
three retired military officers. They said, ``Attempts to 
resume military commission trials would perpetuate the harmful 
symbolism of Guantanamo, undermining our current terrorism 
efforts and squandering an opportunity to demonstrate the 
strength of the American system of justice.''
    How do you respond to that?
    Mr. Kris. Well, I think it is very important that we have 
clear that the military commissions systems, as we are 
proposing to reform it, would not be some kind of second-class 
justice system. And I think it is incumbent upon us as the 
administration, and perhaps the Government as a whole, to get 
that message out. And I think a hearing like this one is an 
important part of that process.
    We want to have a system of commissions that is and appears 
to be fair, and I think we are moving in that direction, and I 
hope that people will listen to what is going on and take a 
look at the rules that we are proposing and take comfort in 
them.
    Senator Feingold. There has been a lot of talk lately about 
the application of Miranda rights in the battlefield context. 
As I understand the Government's longstanding position under 
President Obama and President Bush alike, Miranda warnings are 
never permitted to interfere with American military or 
intelligence-gathering operations.
    Is that correct? And can you explain why this is really a 
red herring?
    Mr. Kris. It is correct. There is no new policy with 
respect to the administration of Miranda warnings. It continues 
to be done and decided on a case-by-case basis. In actual 
practice, I believe the number is less than 1 percent of 
interviews are preceded by Miranda warnings. They are not used 
by soldiers on the battlefield, and they are not allowed to 
interfere with force protection and other critical aspects.
    Again, it is this case-by-case, fact-intensive judgment 
because sometimes the use of Miranda warnings can help keep 
open a prosecution option, and that makes us more safe, not 
less.
    Senator Feingold. Thank you.
    Thank you, Mr. Chairman.
    Chairman Cardin. Senator Hatch.
    Senator Hatch. Thank you, Mr. Chairman.
    I appreciate both of you and your testimony here today. 
Gentlemen, last week, a major deadline was missed by the 
Detainee Policy Task Force, and the failure to meet that 
deadline gives me some pause. I see it as an indicator that 
closing Guantanamo in less than 180 days may very well be 
unrealistic. The DPTF's publishing of ``an interim report'' 
does nothing to dispel my concern, let alone the concerns of my 
constituents who write me daily to express their uneasiness 
over bringing detainees to the United States.
    Now, the 6-month extension for publishing the report will 
now push back the report's due date to January 21, 2010, the 
day before the President will order the closure of Guantanamo. 
Now, this schedule for the issuance of reports and the deadline 
for closure of Guantanamo was set by the President, not by 
Congress.
    I certainly have a lot of respect for the job that you 
gentlemen have been tasked with, and as a member of both the 
Senate Judiciary Committee and the Senate Select Committee on 
Intelligence, I realize the complexities involved in this 
review process. But when a significant report outlining 
detainee policy going forward misses its deadline and cannot 
and will be published and presented to the Congress and the 
American public until the day before the administration 
shutters Guantanamo, you can see how it reflects poorly on the 
way this process has evolved.
    Now, I believe that this is a major reason why support for 
the closure of Guantanamo is waning in not only Congress but in 
public opinion as well.
    So, today, can both of you give me your honest assessment 
of where we are in the review process? And are you confident 
that the final report will take another 6 months to complete?
    Mr. Kris. Senator, I think I will take a crack at that. 
First, I think to begin with, it is important to distinguish 
between the Detainee Policy Task Force, which will be the 
author of the report to which you refer, which is really 
looking at the whole range of detainee policy issues going 
forward; and, on the other hand, the task force assigned to 
review each of the detainees at Guantanamo Bay.
    So the delay in coming up with a comprehensive detainee 
policy I do not think necessarily undermines the ability of the 
separate Guantanamo task force to do its review. And as I say, 
they are more than halfway through the 240 detainees now, and 
they do expect to be done with their initial review of all 
detainees by October 1st.
    Senator Hatch. How many cases have you reviewed, and how 
many are left to review, do you know? If you could give me 
those numbers.
    Mr. Kris. I do not have the exact number, but we are more 
than halfway through the 240 who were there on January 22nd, so 
approximately 120. And the expectation is to finish the 
remaining 120 for review by October.
    Senator Hatch. What are the projected breakdowns of 
prosecutions by Article III courts and military commissions?
    Mr. Kris. As I said earlier, that is a number that is 
impossible to provide at this point because we have not done 
all of the prosecution work-up. I can say that, as Mr. Johnson 
has said, substantially more than 50 have been approved for 
transfer and a significant number have been approved for 
possible prosecution. Beyond that, I really cannot go.
    Senator Hatch. Mr. Kris, in your prepared testimony, you 
stated that, when feasible, the Justice Department will 
prosecute detainees in a Federal criminal court for violations 
of war, and there are specific requirements to ensure the 
authenticity of evidence for use in Federal criminal 
prosecutions. One of these requirements, as you know, is chain 
of custody. There are many scenarios where the chain of 
evidence may not be documented. For example, a combatant 
captured in Afghanistan may have documents, pocket litter, or 
other materials in his possession that link him to a war crime 
or a criminal violation. If the ultimate goal is prosecution in 
Federal criminal court, then chain of custody must be 
preserved. At least, that is my understanding.
    What is your proposal to address the preservation of chain 
of custody so that the Government can introduce its evidence 
into Article III courts?
    Mr. Kris. It is an excellent question, Senator. Obviously, 
chain of custody is a concern, and it is a concern for 
authenticating evidence in any forum.
    To answer your question directly, I guess what I would say 
is the protocol in the second of the three groups of factors 
recognizes that choice of forum may be influenced by legal or 
evidentiary problems that might attend the prosecution in the 
other jurisdiction. And as I was saying to Senator Feingold, 
there are, I think, going to be some differences in the rules 
that govern between Article III courts and military commissions 
as we are proposing them. One of them, for example, would have 
to do with the admissibility of hearsay evidence, which raises 
a similar concern. If you have got a soldier on the battlefield 
and he is, you know, the live witness, you may not be able to 
pull him off the line, and so there may need to be some 
relaxation of those rules.
    But considerations of the sort you are identifying are part 
of the protocol and would not be dispositive, but they would be 
a factor in the thinking.
    Senator Hatch. Okay. I am sure, Mr. Kris, that a great deal 
of the evidence that will be introduced in Federal criminal 
prosecutions of detainees was obtained for intelligence 
purposes. In some cases, the Government may not be willing or 
able to produce the source of the evidence. Furthermore, the 
evidence may be the fruit of information obtained from foreign 
intelligence or foreign investigations. The disclosure of these 
foreign relationships could severely jeopardize intelligence-
sharing opportunities in the future. As such, the source of the 
evidence is either unable or unwilling to testify at trial.
    If trying these cases in Federal criminal courts is the 
ultimate goal, what solutions does the DOJ propose to address 
hearsay evidence exclusions? Have you arrived at conclusions on 
that?
    Mr. Kris. Well, with respect to hearsay--excuse me. We have 
a position that is actually quite close to the Senate Armed 
Services Committee bill, which basically requires the direct 
evidence, unless it would be impractical or it would have an 
adverse effect on military operations and is not in the 
interest of justice. So that is a different standard, say, than 
applies in Federal court.
    With respect to classified information, especially with the 
Graham-McCain amendment, which Mr. Johnson mentioned in his 
testimony, which is quite similar to CIPA, the Classified 
Information Procedures Act, in a way you are pointing out a 
challenge that exists for all prosecutions in either forum, and 
it is a challenge. You can have situations where you risk 
compromising sources and methods. There are ways around that, 
and CIPA is the main vehicle for dealing with those kinds of 
issues. But in a way, I think you point out the larger question 
here, which is that prosecution itself, whether in a military 
commission or in an Article III court, is one way but only one 
way, and not always the best way to protect national security. 
We are focused on protection of national security, and we have 
tried to use all of the lawful tools in the President's toolbox 
to achieve that protection, including but not limited to 
prosecution.
    Senator Hatch. Mr. Chairman, my time is up.
    Chairman Cardin. Thank you very much.
    Senator Durbin.
    Senator Durbin. Thank you very much. And Senator Kyl is 
right. We have this ongoing debate that continues, and I would 
just say that as far as the presumption is concerned, I think 
the figures speak for themselves. The fact that over the 7 
years we had three who were tried before military commissions 
and 145 in Article III courts is an indication to me that there 
was a presumption that the most successful line of prosecution 
was in the Article III court.
    Let me also say, in commending my colleague from Arizona, 
that he has been part of the effort of this Committee to 
enlarge the terrorism laws of the United States since 9/11 that 
have been the basis for successful prosecutions, so--in Article 
III courts, I might add, so that we have created some 
opportunities, legal opportunities here to protect our Nation.
    Let me ask, if I can, a question or two here. There is a 
concern about the image of military commissions. It has been 
expressed by several people at the highest level. Lieutenant 
Colonel Darrel Vandeveld testified before the House Committee 
on the Judiciary recently, and he said, ``I proudly went to 
Guantanamo to serve our country as a prosecutor charged with 
bringing to justice detainees President George Bush had said 
were `the worst of the worst.' But I eventually left 
Guantanamo,'' the colonel said, ``after concluding that I could 
not ethically or legally prosecute the assigned case. I became 
the seventh military prosecutor at Guantanamo to resign because 
I could not ethically or legally prosecute the defendant within 
the military commission system at Guantanamo.''
    Similarly, Rear Admiral John Hudson and Brigadier General 
James Cullen said, ``The commission system lacks domestic and 
international credibility, and it has shown itself vulnerable 
to unlawful command influence, manipulation, and political 
pressure.''
    Former Secretary of State Colin Powell said, ``We have 
shaken the belief that the world had in America's justice 
system by keeping a place like Guantanamo open and creating 
things like military commissions. We don't need it, and it is 
causing us far more damage than any good we can get for it.''
    So can we repair the image of military commissions to the 
point where we can say to the world with credibility that we 
are now operating under established standards of justice and 
jurisprudence and that it is clearly a different approach than 
has been used in the past?
    Mr. Kris. Yes. The President believes we can. The 
administration believes we can. Obviously the President had 
concerns about the Military Commissions Act, the prior system, 
or the existing system of military commissions. The initial 
action there was to take five important rules changes that he 
could do without legislation, and those have been made. I can 
go over them if you want. Mr. Johnson knows them even better. 
But they were important. They dealt with things like hearsay, 
choice of counsel, and that sort of thing, and obviously the 
cruel, inhuman, and degrading treatment standard for the 
admissibility of confessions.
    The next step is the bill that is now pending in Congress 
reported out by the Senate Armed Services Committee, and we 
have a great deal of agreement with that bill. There are a few 
areas where we have some disagreements. But if the 
administration gets the proposals that it is putting forward, I 
think the military commission system would be amply fair, and 
it would be a system that would not be second class. And I 
think eventually the public perception will catch up with the 
reality.
    Mr. Johnson. Senator, if I could, as the Department of 
Defense lawyer, I think one of the problems that we have had is 
that the American public, by and large, is just simply 
unfamiliar with the concept. You cannot turn on TV and watch a 
military commissions hour-long show, like ``Law and Order'' or 
something of that nature. But I know from personal experience 
that our JAGs cherish notions of justice, the Constitution, 
just like Assistant U.S. Attorneys do, and many of our 
prosecutors at the Office of Military Commissions are 
reservists who are AUSAs in their other life. Our JAGs are 
highly qualified lawyers. The JAG sitting behind me who has 
helped me in this effort is a Rhodes scholar and was on the 
Harvard Law Review with the President. I think he got better 
grades.
    The JAGs all--let me just cite for you one incident. When 
we started looking at the rules changes, I got around in a room 
at the Pentagon with all the JAGs familiar with the process, 
prosecutors and defense, and said, ``Guys, what can we do to 
reform military commissions? '' And the first thing right off 
the bat was, ``Let's get rid of the possibility, codified in 
law, for admitting statements that were taken as a result of 
cruel, inhuman, and degrading treatment.''
    There was almost complete unanimity in the JAG community to 
do that because that possibility alone did so much to cost 
military commissions in terms of credibility and perceptions 
about the fairness of the process. And the rules change, I am 
happy to say, did away with that, and the Senate bill itself 
does the same thing. So there is an aspect of, you know, 
developing here step by step, but I think we can get there.
    Senator Durbin. Let me just say that I do not question the 
professionalism or integrity of those who were involved in the 
Judge Advocate Generals' operations. I have worked with many of 
them, and I respect them very, very much. They were put at a 
distinct disadvantage when the commissions were initially 
created by Presidential fiat and not by congressional activity, 
not by the ordinary course of law. And I think the subsequent 
Supreme Court decisions in Hamdan and Boumediene also raised a 
question as to whether or not they were conceived properly. I 
hope they can be reconceived in a much fairer fashion.
    I join with my colleague from Wisconsin in saying that I 
would want to be shown in opposition to what passed last week, 
this so-called preference in our sense of the Senate language 
for going to commissions. I think that the record, as Senator 
Whitehouse has said on the floor, speaks for itself in terms of 
the Department of Justice.
    I know I just have a few seconds left here, but I have to 
tell you that there is one case I am familiar with through a 
pro bono lawyer in Chicago of an individual arrested at age 19 
and detained at Guantanamo. A reward was given to those who 
turned him over, and after 6 years of incarceration, he was 
given notice last year that our Government was not going to 
proceed with any charges against him and he could be released 
at any time. Of course, he still sits in Guantanamo because 
there is no place to release him. They are working to find a 
place for his release.
    So the notion that many people have about who is there and 
why they are being held I think sometimes conflicts with 
reality. There are dangerous people who need to be tried before 
courts, or commissions for that matter, and there are some who 
fall in a category--I would like to close by asking: What do we 
do with those who cannot be prosecuted but still pose a threat? 
What is their disposition? Where do they end up when Guantanamo 
is closed?
    Mr. Johnson. As the President said in his National Archives 
speech on May 21st, there may be at the end of our review 
process that category of people who, for reasons of national 
security, safety of the American people, we have to continue to 
detain. And for that category of people, what the 
administration believes is that there should be some form of 
periodic review. Whether that is every 6 months or 12 months, 
we are sorting that through now.
    But because of the nature of the conflict and because there 
is not going to be a readily identifiable end of the conflict, 
we believe that if we prevail in a habeas litigation, we should 
not just throw away the key and keep the person there 
indefinitely. There ought to be some form of periodic review, 
and we are developing a system and a process right now for that 
segment of the population at Guantanamo that we may end up 
with.
    Senator Durbin. Thank you, Mr. Chairman.
    Chairman Cardin. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Well, I think one of the problems we have had from my 
perspective, having served on the Armed Services Committee and 
the Judiciary Committee, throughout this entire process is an 
unfair criticism of the military and what we have been doing. I 
think this idea that somehow the world is condemning our 
procedures for handling enemy combatants is not legitimate. I 
think the criticism is coming from Congress. A lot of it was, 
frankly, generated during last year's campaign. And so much of 
that occurred that I guess anybody might think that there is a 
constant series of abuses going on at Guantanamo. But as I 
understand the facts, not one single case of waterboarding 
occurred there. They occurred in intelligence, not the 
military.
    As to the Inspector General's review, I believe they 
concluded, Mr. Johnson, that one case of torture occurred 
because of a series of techniques were used against one 
prisoner, that any one technique alone was not torture, but all 
together amounted to torture. So a review has been--so that is 
the extent of the military's misbehavior, apparently, as found 
there. And it is just so sad to me that we now are in a 
position where we have got a perfectly safe, well-run place at 
Guantanamo, and somehow our own Members of Congress have 
created a perception that all wild abuses have been occurring 
systematically there. I do not believe that is true. I do not 
believe that is fair.
    With regard to trying these cases in the United States, 
when you try one, you find out how hard it is. In 2006, the 
death penalty trial of Zacarias Moussaoui was tried in 
Alexandria. Afterwards, the mayor said, ``We would be 
absolutely opposed to relocating Guantanamo prisoners to 
Alexandria. We will do everything in our power to lobby the 
President, the Governor, the Congress, and everyone else to 
stop it. We had this experience. It was unpleasant.''
    City officials noted that there were military people with 
heavily armed agents, rooftop snipers, bomb-sniffing dogs, 
blocked streets, identification checks, and fleets of 
television trucks around. So it is not such an easy thing to 
try one of these big cases in a civilian court in a civilian 
city. It is just not.
    Sixty of these individuals have already returned to the 
battlefield that have been released. Senator Durbin says the 
19-year-old--maybe they were not able to try him, but 
presumably he was detained as an unlawful combatant, and that 
means he is historically and lawfully detained until the war is 
over.
    I do not think these military commissions have been so 
discredited. I have seen nothing is more righteous than a JAG 
officer motivated on an issue. They will stand up to anybody. I 
have seen them shred a colonel, one of my friends, one time, 
and I held a JAG slot for 2 years, although I was not trained 
at Charlottesville, in an Army Reserve unit. And I have great 
confidence in the fidelity of these officers, and they have 
even, I am sure, objected to some of these procedures, as he 
said, because they have extremely high standards about how 
these matters should be handled.
    Could I ask you some brief, simple questions? I hope you 
will not talk too long, because I am just trying to get a 
perspective. Maybe the Department of Justice would be first. If 
there is a terrorist attack, a terrorist captured in 
Afghanistan with bombs, provable to be planned to be used 
against an American base, is that the kind of case that we are 
talking about being tried in Federal court?
    Mr. Kris. The answer is it might be, but I think it is 
probably more likely that that case would result in detention 
in a theater detention facility.
    Senator Sessions. And what statute is violated? How is 
there jurisdiction in the United States to try such a case in a 
civilian court?
    Mr. Kris. Well, as was mentioned earlier, I think, thanks 
to Senator Kyl and others in Congress, there is quite a large 
number of Federal criminal statutes that apply 
extraterritorially, including conspiracy to kill Americans and 
terrorist acts against Americans abroad. So there is, I think, 
quite a lot of jurisdiction. That is really separate from the 
question whether as a policy matter or tactical matter it would 
make sense in any particular case to bring a criminal 
prosecution, even if you could bring one.
    Senator Sessions. And the venue? It used to be where you 
first bring the individual. What if you bring them to 
Guantanamo? Can they be moved and tried in Illinois?
    Mr. Kris. The venue statute essentially distinguishes 
between--when you do not have an otherwise basis for venue 
because of a victim or an attack in the United States. For 
extraterritorial activities, it really distinguishes between 
situations in which the indictment is returned before the 
defendant arrives, where the District of Columbia is a viable 
venue, or where you do not have that, where the defendant is 
first brought. I think GTMO does not count because it is not 
within the jurisdiction of any Article III court right now, not 
in a district.
    Senator Sessions. Now, with regard, Mr. Johnson, to the 
Miranda warnings, well, this can be problematic. I mean, on the 
battlefield, we are in a state of war. We are dropping bombs on 
people right now in Afghanistan and Iraq who threaten us, and 
we have a lawful right to do so. But the key thing we learned 
from the 9/11 Commission was good intelligence is critical. It 
is not like the average American burglar or drug dealer. The 
critical nature of intelligence saves lives on the battlefield.
    Don't you think that if we expand and continue to provide 
more and more Miranda warnings, we are, in fact, going to 
diminish intelligence because anybody would not talk if they 
are told that up front? And when you say Miranda warnings, do 
you tell them they are entitled to a lawyer also?
    Mr. Johnson. Senator, let me answer your question in two 
ways, if I can.
    First, the current version of the Senate bill expressly 
excludes from military commissions Article 31 of the UCMJ, 
which is the Miranda warnings requirements, in terms of 
admissibility of evidence.
    The second point I will make is a letter that I----
    Senator Sessions. Well, let us slow down. Why is it being 
given then?
    Mr. Johnson. Well, Senator, I understand that there is this 
perception out there that the United States military might be 
reading detainees or people we capture Miranda warnings, and 
that is not true. I wrote a letter to the Chairman of the House 
Armed Services Committee last week on this very issue, and if I 
could, I would just like to read you the first three sentences 
of the letter.
    Senator Sessions. But the FBI is the one that is doing 
then, our Federal and Department of Justice investigators, not 
DOD?
    Mr. Johnson. As Mr. Kris made clear, the FBI in a very, 
very few cases, in order to not foreclose the avenue of 
prosecution, has done that. But the United States military is 
not reading Miranda warnings to people we capture. That is not 
our----
    Senator Sessions. Well, isn't there a danger--and I will 
ask Mr. Kris about it. But isn't there a danger, if the 
presumption is that those cases would be tried in civilian 
court, that the evidence or the confessions could be suppressed 
if they were not given a Miranda warning?
    Mr. Johnson. Well, Mr. Kris can answer as to Federal 
prosecutions. Military commissions, that will not be a 
requirement.
    Mr. Kris. I guess I would say first, to echo what I said 
earlier, of the thousands of interviews conducted by the FBI in 
Afghanistan, Miranda warnings have been given in less than 1 
percent of the cases, and this is the practice, giving Miranda 
in a very small number of cases like this, that stands----
    Senator Sessions. My time is running, but isn't this then--
if you are going to try them in civilian courts, aren't we now 
in a situation where more Miranda warnings must be given if we 
are going to proceed wisely?
    Mr. Kris. I think you need--to proceed wisely, you need to 
approach these threats and these problems, these national 
security problems, one at a time and figure out what is the 
best way to defeat this problem. And it may vary from case to 
case. Sometimes you need a hammer, sometimes you need a 
screwdriver. You use whatever tool is right for the particular 
situation.
    If you give Miranda warnings in a case, it keeps the option 
of criminal prosecution in an Article III court open. There may 
be other ways. There are exceptions to Miranda for public 
safety under the Quarles case from the Supreme Court, so it is 
not as if you always need to give Miranda warnings. But if you 
do, it can keep the option open. On the other hand, there may 
be costs to doing so. That balance has to be struck one case at 
a time by the professionals who have the ground truth of one 
particular problem.
    Senator Sessions. Well, my time is up, but I would just say 
that is not a very clear answer, I do not think.
    Chairman Cardin. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman, and thank you for 
this hearing.
    Just to continue on Senator Sessions' point on mirandizing, 
I think you have said that you look at these matters case by 
case and you make a very specific fact-intensive determination 
based on the particular circumstances of each case, correct?
    Mr. Kris. That is essentially right. I think that is the 
way it should be done, anyway.
    Senator Whitehouse. That makes sense, doesn't it?
    Mr. Kris. I think so.
    Senator Whitehouse. Are there not indeed cases in which 
mirandizing a detainee might actually be part of an optimal 
interrogation strategy for that particular detainee?
    Mr. Kris. Well, it might be, and that would be something 
that I as a mere lawyer would want to defer to the 
interrogation experts.
    Senator Whitehouse. But certainly since Congress is not 
interrogation experts, it would be a mistake for us to 
foreclose your ability to apply Miranda warnings where the 
case-by-case and fact-intensive determination made by the 
professionals suggested that it was a good idea?
    Mr. Kris. I think that is the absolutely critical point, 
Senator, that we have a range of different remedies and tools 
that we can use, and I think we are at our best, at our most 
effective and strongest when we have all of the options 
available to us and we do not have artificial rules sort of 
adopted a priori that rule out certain techniques and tools in 
certain categories of cases.
    Senator Whitehouse. As I recall, one of the most 
significant interrogations that has been done in terms of 
productivity was the interrogation of Abu Jandal, and the 302s 
from that investigation I believe are still being used in cases 
to this day, and that was accomplished after Miranda warnings, 
was it not?
    Mr. Kris. I think that is correct, and I think more 
generally, depending on the circumstances, a very, very good 
interrogator can often get tremendously valuable information, 
you know, depending on what he knows about the detainee and 
language and cultural issues. So it is a very complicated 
business. But the goal, again, is to keep all the options on 
the table.
    And I should say one other thing, I guess, that may not be 
obvious, but to the extent that we do not have a Miranda 
requirement in a military commission but we do have, let's say, 
a voluntariness test, I am not suggesting that we would start 
prophylactically giving Miranda warnings across the board by 
any means. But if Miranda warnings are given, that does not 
preclude the admission of the statement and the prosecution in 
a military commission. Indeed, it may be helpful there as well 
as in an Article III court.
    Senator Whitehouse. And I share Senator Sessions' high 
opinion of the JAG Corps. Indeed, for those of us who were 
distressed and dismayed by what I consider to be shabby and 
second-rate work that came out of the Office of Legal Counsel 
in support of the torture program, it was the JAGs from every 
single one of the military services who stood up and pushed 
back and said, ``This is wrong. We know this material. This is 
wrong.''
    Indeed, so did the State Department lawyers. I believe the 
only organization of Government that did not push back was the 
CIA, and their lawyers have their own consciences to hold to 
account for that. But, clearly, the JAG officers, in some cases 
at considerable peril to their personal careers, did the right 
thing. So I think that they are a very good measure of whether 
or not the military commissions are working. And I think the 
fact that over and over and over again career prosecutors 
resigned rather than pursue prosecutions under the military 
commissions as they previously existed is a sign that something 
really was wrong with those military commissions, that it has 
not just been invented by Members of Congress. And, certainly, 
Colin Powell has never been a Member of Congress, and he is a 
person who I think America has confidence in on national 
security matters. And he said that we have shaken the belief 
the world had in America's justice system by keeping a place 
like Guantanamo open and creating things like the military 
commission. And he obviously meant as it was then run, and I 
wish you well in trying to repair it. His view is we do not 
need it and it is causing us far more damage than any good we 
get for it. And I think it would be important as you go forward 
to make sure you stay out of the chatter strips in terms of 
doing this right, because our credibility has already been 
burned once in this effort.
    Could I ask you how many terrorists have to date been 
convicted before military commissions since 9/11?
    Mr. Johnson. Three.
    Senator Whitehouse. Three.
    Mr. Johnson. In 7 years.
    Senator Whitehouse. In 7 years.
    Mr. Johnson. That is not a great track record.
    Senator Whitehouse. That is not a great track record.
    Mr. Johnson. We are determined to have a more efficient 
system.
    Senator Whitehouse. And the information that I had when I 
spoke on the Senate floor with respect to the preference is 
that the number of people associated with terrorism who have 
been convicted and are now serving lengthy Federal prison 
sentences numbers around 350 or so. Is that correct?
    Mr. Kris. That sounds certainly--that is at least close to 
the number, if it is not the exact number. I think there are 
more than 200 persons in the custody of the Bureau of Prisons 
with a terrorism nexus of one sort or another.
    Senator Whitehouse. My information was that there are 355 
inmates in Federal prison now who have been successfully 
charged, prosecuted, convicted, and are serving lengthy 
sentences as a result of their history or connection with 
international or domestic terrorism. The domestic terrorism 
number may be the 200, and the others are international 
terrorism.
    The last thing that I will mention to you, I know attorneys 
in my home State who have represented people in Guantanamo. 
These are attorneys in a corporate law firm. They have no 
particular axe to grind. In fact, if anything, they probably 
err on the side of a conservative view of the world and a kind 
of orderly, established view of the world. The way in which 
they have been treated as advocates for people at Guantanamo 
has them livid: denials of access, repeated inconveniences, 
unnecessary hassle and bother, as they try to go about what for 
them is pro bono activity.
    I would urge you to take a look at the way in which the 
counsel for folks at Guantanamo are treated. These are good 
Americans who are trying to do the right thing. They aspire to 
the highest standards and principles of their legal profession. 
And for some reason or other, they come away feeling very 
disturbed by the way they have been treated by their own 
Government.
    Mr. Johnson. Senator, since I come from a corporate law 
firm, they call me directly.
    Senator Whitehouse. You understand.
    Mr. Johnson. And they are not shy about that, so it is 
something I am very sensitive to.
    Senator Whitehouse. Thank you, Chairman.
    Chairman Cardin. Senator Hatch has a follow-up question.
    Senator Hatch. Yes, I have been concerned about this 
Miranda matter, and while I know both of you gentlemen stated 
that Miranda warnings should not be provided to detainees 
captured on the battlefield, that does not address the fact 
that there will be some Miranda problems, especially if Article 
III courts, you know, are to be the preferred venue for 
prosecution.
    Now, I staunchly oppose any notion that troops in the 
middle of the battlefield be required to administer warnings to 
capture combatants. But can both of you or either of you give 
me your definition of the nature and scope of what is a 
battlefield in the context of the current conflict? Let me stop 
there, and then I have one other question I would like to ask.
    Mr. Johnson. Senator, I can offer to the Committee for the 
record a letter that I wrote to the Chairman of the House Armed 
Services Committee last week on this issue. What I can say to 
you is that the U.S. military is not providing Miranda warnings 
to people that they capture. That is not their job, and I would 
have a lot of three- and four-star general clients all over me 
if I even remotely began to suggest that our troops do that. 
And the only circumstance under which that happens is where the 
law enforcement prosecution option is one that is being 
considered and we have exhausted military intelligence 
collection options with respect to that particular individual.
    As to your question about what constitutes the battlefield, 
obviously given the nature of this conflict, there is no easy 
answer to that question, and anybody who tried to give you an 
easy answer to that question I suspect would be overlooking a 
lot of complexity.
    I can tell you that the mission of the military is not 
evidence collection. It is to capture and engage the enemy.
    Senator Hatch. Okay. Any--did you want to say something?
    Mr. Kris. Well, I would just say more generally, Senator, 
it is important to distinguish between rules of admissibility 
in prosecution for, whether it be a commission or an Article 
III court, and primary conduct on the ground. When it comes to 
the primary conduct, the paramount concern always has to be 
safety and force protection and intelligence collection. It may 
be that some statements in some situations may not be 
admissible, but you would not want to compromise the safety of 
our troops on the line in order to preserve that for down the 
road.
    Senator Hatch. Well, I agree with that, but any first-year 
law student will tell you that Miranda is triggered when a 
suspect is in custody and is asked questions that will elicit a 
response that may develop inculpatory statements or evidence.
    Now, given that some of these detainees have been in 
custody since 2002, what is being used to evaluate the veracity 
of previous statements they have made since being in custody? 
And how does the Government plan to overcome the admissibility 
issue of these statements in the Article III courts?
    Mr. Kris. Well, again, we may or may not be able to 
overcome those admissibility concerns in any particular case, 
and if we cannot, that may be a factor that bears on forum 
choice. I cannot say that in every case every statement will be 
admissible under whatever standard ends up applying either in 
an Article III court or in a military commission.
    Senator Hatch. Would you be forced to let them go free 
then?
    Mr. Kris. No. I think you have to consider other evidence 
that is available against them. Cases do not depend entirely on 
the statements of these people. You know, there can be other 
evidence, and prosecutors are used to working around those 
kinds of concerns when evidence is suppressed in any kind of 
environment. So you just have to work through each case one at 
a time and figure out what you can do.
    Senator Hatch. Well, thank you.
    Thank you, Mr. Chairman, for letting me ask those 
questions.
    Chairman Cardin. Absolutely.
    Let me just get the numbers straight and a couple dates. 
You are indicating that you will complete the review of the 
detainees at Guantanamo Bay this fall.
    Mr. Kris. That is the expectation, yes.
    Mr. Johnson. Yes.
    Chairman Cardin. And that to date, somewhere significantly 
higher than 50 out of the 240 you anticipate transferring to 
other countries or relocating.
    Mr. Kris. Substantially more than 50 have been approved for 
transfer. That is right.
    Chairman Cardin. Already approved. That is right. I am 
sorry. And that there is a significant number that you are 
already pursuing Article III prosecution, criminal prosecution.
    Mr. Kris. Well, they have been referred for evaluation by 
DOJ and DOD prosecutors jointly under that protocol.
    Chairman Cardin. So it could Article III or it could be 
military commissions.
    Mr. Kris. Or I guess in some cases we might conclude 
ultimately it cannot be prosecuted and it would get thrown 
back, but essentially yes.
    Chairman Cardin. Has there been any determinations yet of 
those that will be recommended for indefinite detention?
    Mr. Kris. No. There is no detainee who has been put in that 
fifth category.
    Chairman Cardin. Will the decision to put someone in the 
fifth category also be made by the Attorney General in 
consultation with the Secretary of Defense?
    Mr. Kris. That is not an issue that is covered by this 
protocol. I think that is probably a broader Cabinet-level, 
principal-level, or Presidential decision that would not 
necessarily be just confined to the two of those, those two 
particular----
    Chairman Cardin. So that decision has yet to be made other 
than the President's statements that there would be due process 
review of individuals placed in this category.
    Mr. Kris. Yes. I mean, it is conditional, if we end up with 
people in that category.
    Chairman Cardin. If we end up. As I understand it, you 
recommended that the military commission bill, Senate bill, be 
amended to include a sunset provision. Could you explain why 
you believe there should be a sunset provision in this?
    Mr. Kris. Well, the main reason, I guess, is that 
traditionally military commissions were used in the context of 
a particular conflict. This particular conflict may be unlike 
most others, if not all others, that we have dealt with, with 
respect to how long it may endure. And so if you tie a 
commission to the duration of the conflict but you now have a 
relatively open-ended conflict, it made sense to us that after 
some number of years, Congress come back and take a fresh look 
and see whether we have learned something, whether things need 
to be changed. That is really, I think, the main thinking 
behind that.
    Chairman Cardin. I generally support sunset provisions, but 
it seems to me that we do want to get a process for military 
commissions in place with some degree of confidence and 
predictability.
    Mr. Kris. That is a fair point.
    Chairman Cardin. If there is no longer a need in regards to 
this particular conflict to continue military commissions, your 
recommendation would be to allow the sunset to take place?
    Mr. Kris. I do not necessarily want to go that far. All I 
am really saying on behalf of the administration here--this is 
not just me--is that a sunset is a mechanism that would compel 
and allow Congress to look again at commissions, see maybe they 
should be continued, maybe they should not be; maybe they 
should be reformed in some way. I think we are going to learn 
things going forward here, and after a certain number of years, 
it may be appropriate for Congress to take a second look. But I 
would not want to prejudge any particular outcome at that 
point. It would really depend on what we find.
    Chairman Cardin. Well, as you go forward, we would like you 
to keep the Judiciary Committee informed as to the numbers that 
are likely to be referred for prosecution, both Article III and 
military commissions, and what procedures are being used in the 
event that you will be determining people need indefinite 
detention. Obviously, I know you are going to have to submit a 
plan to Congress as to where those individuals will be 
maintained if there is no Guantanamo Bay.
    Senator Kyl.
    Senator Kyl. Thank you.
    I meant to ask you, and I understand Senator Hatch may have 
asked you, the question about whether given the fact that we 
are going to have now a presumption for Article III 
jurisdiction or trials, it would not necessarily increase the 
situations in which Miranda warnings are given. Now, if I 
misstate this tell me, but my understanding was that the answer 
was, well, the case-by-case analysis in any event does not 
occur until after whatever questioning by the military 
intelligence or other related departments or agencies might be.
    If that is true, wouldn't this--if that is true, even 
though you can have an Article III trial with testimony 
admissible despite no Miranda warning, it makes it much more 
difficult, I believe, and, therefore doesn't that diminish the 
number of cases in which the presumption could result in an 
Article III court trial? That question got kind of convoluted, 
but I think if you want to restate your understanding of it, 
that is fine.
    Mr. Kris. I think I understand you. It is certainly the 
case, I think, as Mr. Johnson said, that we need to take care 
of immediate intelligence and force protection first.
    Senator Kyl. Right.
    Mr. Kris. Nobody wants to sacrifice the safety of our 
troops.
    Senator Kyl. Right.
    Mr. Kris. The second is I think we need to be strategic 
about this, but, you know, if we find that we have information 
that is very valuable and inculpatory, but it was not preceded 
by Miranda warnings, then obviously that will be a factor.
    Actually what outcome will follow from that in any 
particular case would depend--and I guess this is the theme I 
keep returning to over and over again--on all of the facts of 
the case----
    Senator Kyl. Right, but let me just ask you----
    Mr. Kris [continuing]. But it will--yes?
    Senator Kyl. One of the key facts will be whether a Miranda 
warning was given, because that will have a lot to do with 
whether evidence is admissible. Is that not correct? I will 
address my questions to either one of you.
    Mr. Kris. Go ahead. I thought you were talking to him.
    Senator Kyl. Well, I am sorry. I kind of was. But whichever 
one of you wants to answer is fine with me. The question is--
well, let us do it in order.
    Is it true that in order to get an Article III prosecution, 
it is a whole lot better to have a Miranda warning if you are 
going to rely on statements given by the defendant?
    Mr. Kris. Yes, it will be better--of course, there are 
exceptions, like the public safety exception is important, too. 
But I take your basic point, yes.
    Senator Kyl. Yes, Okay. Now, is the presumption for an 
Article III trial, therefore, going to override what I heard 
you to say was the preeminent concern, which is that whatever 
battlefield intelligence questioning needs to occur will occur 
first, without regard to how the case is ultimately going to be 
disposed of?
    Mr. Kris. If I understand you, I think the answer is 
clearly not. We would want to gather intelligence and protect 
our troops as the paramount concern and then see what we can do 
after that.
    Senator Kyl. Right. So if there is an order of hierarchy 
here, the first value would be seek whatever information you 
need to in the beginning to protect the troops and gather 
important intelligence. Second now is a change in the hierarchy 
of values. After that, the next presumption is that the case 
should be an Article III case if possible.
    Mr. Kris. Again, I think I understand where you are going. 
My only quarrel with this is it starts to become a little too 
rigid for what I think is the varied and complex ground truth 
that we encounter out there.
    The way I would put it is we are interested in protecting 
national security using whatever tool is best for the 
situation, and that will vary quite a lot. There are some 
principles I can state, and the one we talked about earlier 
about force protection and immediate intelligence gathering. 
But I think it is very dangerous to start adopting these 
abstract principles too much in advance because the reality is 
more messy than that.
    Senator Kyl. I understand that, but what we are getting at 
here is it is going to be really hard to get an Article III 
prosecution if you do not give Miranda warnings. And if the 
presumption is that the cases are going to be Article III 
cases, not military commissions, then by definition you are 
going to have to have given Miranda warnings in most of them. 
And if that is the case, then that directly conflicts with the 
first priority, which is getting good military intelligence, 
because once you give a Miranda warning, you are probably not 
going to get a whole lot, at least in most cases.
    So doesn't this change in presumption potentially work its 
way up the chain and conflict with the first priority, which is 
to get military intelligence?
    Mr. Johnson. Senator, let me try to answer that by reading 
to you a portion of the protocol that has been worked out 
between DOJ and DOD.
    ``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 we go on through three sets of factors to evaluate 
with each case. I will just read one of the three sets: 
``Strength of Interest. The factors to be considered here are 
the nature of the offenses to be charged, or any pending 
charges, the nature and the gravity of the conduct underlying 
the offenses, the identity of victims of the offense, the 
location in which the offense occurred, the location and 
context in which the individual was apprehended, and the manner 
in which the case was investigated and evidence gathered, 
including the investigating entities.''
    And the other two sets of factors sort of go on in a 
similar vein.
    Senator Kyl. So isn't it likely, though, that if there is 
not a change in procedure in the original intelligence 
gathering, whether the questioning is by the military or the 
intelligence services, CIA or whoever it might be, if they are 
not routinely giving Miranda warnings--and I gather they would 
not be--then even though there may be a presumption to try to 
get prosecutable cases into Article III courts, the reality is 
that without Miranda warnings having been given in most cases, 
the presumption is probably going to be overridden on that 
factor alone in many, in perhaps the majority of cases?
    Mr. Johnson. I would hesitate to try to predict how the 
cases are going to shake out in response to your question. I do 
know that this protocol was worked out with sufficient 
flexibility to take account of that and other issues so that we 
have both avenues of prosecution available for dealing with 
international terrorists.
    Senator Kyl. Yes. And, by the way, I think everybody is in 
favor of having both avenues available, and I am not arguing 
with the priorities here and so on. But I am having a little 
trouble understanding how you could get to the situation where 
you have a lot of military commissions as opposed to--excuse 
me, a lot of Article III trials as opposed to military 
commissions if, in fact, there is not a fairly early Miranda 
warning given in this situation?
    Mr. Kris. I guess two things. One, if you have a situation 
in which the guy does not talk, you do not mirandize him but he 
just does not talk at all, but you have got plenty of other 
evidence, you have got him on video or you have got 
eyewitnesses or whatever, there may be a situation where the 
statements do not obviously make any difference.
    The other is while we do want to be strategic about this 
and we try to sort of anticipate the endgame of the process at 
the earliest possible stage--that is only sensible--I think the 
concern you are getting at, and I think it is a fair one, is 
you do not want the tail to end up wagging the dog.
    And I do think that is a legitimate concern, but I think we 
have enough flexibility under this protocol to take that into 
account and guard against it.
    Senator Kyl. If I could just suggest, in the interest of 
time here--we have another panel we want to get to--anything 
else you would like to add to the record that further clarifies 
this, if you think it is necessary, we would be happy to 
receive it, because I think it is an interesting question that 
is raised, and we could perhaps answer some questions that our 
colleagues might have about this if there is anything else that 
you want to supplement the record with. And I thank you both 
for your testimony.
    Chairman Cardin. I thank Senator Kyl for that comment. I 
concur. Again, I request that you keep us informed, and if 
there is other information you believe we should have to be 
part of our record, please let us know. I expect this will not 
be the last hearing that we will be having on this subject. 
This is an evolving issue and one which is certainly 
challenging to the Department of Justice and the Department of 
Defense, and we thank both of you for your service and for your 
testimony here.
    Mr. Kris. Thank you.
    Mr. Johnson. Thank you.
    Chairman Cardin. We will now turn to our second panel. Let 
me introduce the second panel as they come forward.
    First, we have David Laufman. Mr. Laufman is a former 
Assistant U.S. Attorney and chief of staff to the Deputy 
Attorney General, now serves as partner with Kelley Drye's 
white-collar crime and litigation practice group. Mr. Laufman 
served as an Assistant U.S. Attorney for the Eastern District 
of Virginia where he specialized in prosecuting terrorism, 
espionage, and other national security cases. In 2005, he 
served as the lead trial counsel in the Government's successful 
prosecution of Ahmad Omar Abu Ali known as the ``Virginia 
jihad'' case. This case involved an American citizen who was 
convicted of providing material support and resources to al 
Qaeda, conspiring to assassinate the President of the United 
States, conspiring to hijack and destroy aircraft, and other 
charges, and he was just recently, I think yesterday, sentenced 
to life imprisonment.
    Our second witness is Deborah Pearlstein. She joined the 
Woodrow Wilson School for Public and International Affairs at 
Princeton University in 2007 as an assistant research scholar 
in the law and public affairs program. From 2003 to 2006, Ms. 
Pearlstein served as the founding director of law and security 
programs at Human Rights First, where she led the 
organization's efforts in research, litigation, and advocacy 
surrounding U.S. detention and interrogation operations. Among 
other projects, she led the organization's first monitoring 
mission to Guantanamo Bay, prepared a series of amicus curiae 
briefs to the United States Supreme Court, and has co-authored 
multiple reports on the human rights impact of U.S. national 
security policy. She was appointed in 2009 to the American Bar 
Association Advisory Committee on Law and National Security.
    And our third witness is Michael Edney. Mr. Edney is 
counsel to the Washington, D.C., office of Gibson Dunn & 
Crutcher. From 2007 to 2009, Mr. Edney was a White House legal 
adviser to President Bush's National Security Council. In that 
capacity, he assisted in coordinating the administration's 
response to national security legal issues and controversies. 
His principal focus was national security-related litigation 
and congressional oversight. Mr. Edney previously worked in the 
Justice Department Office of Legal Counsel.
    We welcome all three of you to the Committee, and we 
appreciate very much your willingness to testify. It is the 
tradition of our Committee, if you would please rise, I will 
administer the oath. Do you affirm that the testimony you are 
about to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Laufman. I do.
    Ms. Pearlstein. I do.
    Mr. Edney. I do.
    Chairman Cardin. Thank you very much. Please have a seat.
    Mr. Laufman, we will start with you.

STATEMENT DAVID H. LAUFMAN, PARTNER, KELLEY DRYE & WARREN LLP, 
                        WASHINGTON, D.C.

    Mr. Laufman. Thank you, Mr. Chairman, thank you, Senator 
Kyl. Thank you for inviting me to testify here today.
    Yesterday morning, in an Alexandria, Virginia, courtroom 
only a few miles from here, the final act played out in a 
terrorism case that embodies many of the issues now before this 
Subcommittee. In the case of United States v. Ahmed Omar Abu 
Ali, U.S. District Court Judge Gerald Bruce Lee increased the 
defendant's sentence from 30 years to life in prison for 
providing material support to al Qaeda, conspiracy to hijack 
and destroy civilian aircraft, conspiracy to assassinate the 
President, and other crimes. Abu Ali will now be transported 
back to the administrative supermax in Florence, Colorado, 
where he is serving his sentence under highly restrictive 
conditions of confinement.
    Mr. Chairman, prosecutors and former prosecutors love to 
talk about their big case, but the Abu Ali case is a prime 
example of both the unique challenges of bringing terrorism 
cases in the criminal justice system and how those challenges 
can be overcome. And in this debate about alternatives for 
prosecuting terrorists, that case is highly instructive.
    From a homeland security standpoint, Abu Ali was our worst 
nightmare. Born and raised in the United States, fluent in 
Arabic, highly intelligent, he joined an al Qaeda cell in Saudi 
Arabia and plotted to commit terrorist acts inside the United 
States upon his return. Because of the obstacles to criminal 
prosecution, Abu Ali was almost designated as an enemy 
combatant. The Government's key evidence consisted of 
confessions obtained by foreign security officers in a country 
with a problematic human rights record, which the defendant 
claimed were the result of torture. And the physical evidence 
tying Abu Ali to the al Qaeda cell had been seized by Saudi 
security officers and was located in Saudi Arabia.
    To prove the Government's case and to rebut Abu Ali's 
claims of torture, which were fabricated, it was essential to 
obtain the testimony of Saudi security officers, and the Saudi 
Government had never in its history permitted its officers to 
testify in a criminal proceeding outside Saudi Arabia--or even 
inside Saudi Arabia.
    The intelligence community possessed information vital to 
both the Government's case in chief and the repudiation of Abu 
Ali's torture claims, but initially was unwilling to allow the 
use of that information in a criminal proceeding.
    These challenges were all overcome through unprecedented 
foreign cooperation, resourceful prosecutors and agents, a 
court willing to apply well-settled jurisprudence to novel 
facts, and an intelligence agency willing to meet prosecutors 
halfway. And what the Abu Ali case and numerous other cases 
affirm is the proven ability of Federal courts to resolve the 
most challenging procedural and evidentiary issues presented by 
terrorism cases without compromising sensitive intelligence 
sources and methods or the fundamental due process rights of 
defendants.
    That record of judicial achievement is well documented in 
the 2009 update to the Human Rights First study, ``In Pursuit 
of Justice: Prosecuting Terrorism Cases in the Federal 
Courts,'' which was released last week, and in the initial 
volume published in 2008. And I would ask that the 2009 update 
be included in the record.
    Chairman Cardin. Without objection.
    Mr. Laufman. Mr. Chairman, the proven effectiveness of 
criminal prosecutions of terrorism cases is reason alone to 
ensure that the Government's ability to bring these cases in 
the courts is not hindered. But there are additional benefits. 
Bringing terrorism cases in Article III courts under well-
established constitutional standards and rules of procedure and 
evidence confer greater legitimacy on these prosecutions, both 
here and abroad, by revealing the underlying facts of our 
adversaries' plots. Criminal proceedings also play an important 
role in educating the American people and the world about the 
nature of the threat that we face. In my judgment, the Obama 
administration, therefore, should be commended for establishing 
a presumption ``where feasible'' that Guantanamo detainees will 
be prosecuted in Article III courts.
    At the same time, I would respectfully submit to the 
Subcommittee that congressional restrictions on the 
administration's ability to transfer Guantanamo detainees to 
the United States for criminal prosecution are ill advised, 
contrary to the national interest, and should be eliminated. 
These restrictions appear to be based on the myth that 
terrorists cannot be safely incarcerated in the United States. 
In fact, both before and after 9/11, a rogues' gallery of 
dangerous terrorists successfully have been detained in this 
country, as detailed in my written testimony, in localities 
across the United States. None of these facilities was ever 
attacked while a defendant was incarcerated there on terrorism-
related charges, and no such detainee has ever escaped. The 
most dangerous of these terrorists are now safely serving their 
sentences at the impregnable supermax facility operated by the 
Federal Bureau of Prisons in Florence, Colorado.
    Congress has ignored this history of experience. It has 
also ignored the Department of Justice's regulatory authority 
to tighten security for individuals who either are being 
detained pending trial on terrorism-related charges or have 
been convicted of such an offense. Under Federal regulations, 
the Attorney General has broad discretion to impose special 
administrative measures that severely restrict a detainee's 
ability to engage in conduct while incarcerated that could 
present a national security risk, including restrictions on 
contact with other inmates, even group prayer with other Muslim 
inmates, and with the outside world.
    As the Obama administration and Congress grapple with 
resolving the detention of prisoners at the U.S. Naval Station 
in Guantanamo Bay, it is essential to create a legal 
architecture that gives the executive branch flexibility in 
determining whether and where to bring terrorism prosecutions. 
One option that must be preserved, among other options, with 
respect to both Guantanamo detainees and future cases is the 
criminal prosecution of detainees in Federal courts.
    In its preliminary report issued on July 22nd, the 
Detention Policy Task Force recognized the importance of 
preserving both criminal prosecution and military commission as 
options for the Government in determining where to prosecute 
individuals accused of engaging in terrorism. The task force 
identified three broad sets of factors that the Government will 
employ in determining the appropriate forum for a terrorism 
prosecution.
    The factors identified in the task force's preliminary 
report reflect a recognition that while criminal prosecutions 
may be generally desirable, certain terrorism cases either 
should not or cannot be brought in Article III courts. In my 
judgment, these cases include cases where the defendant is 
accused of committing crimes against humanity or war crimes or 
evidence was gathered in the battlefield by U.S. or foreign 
military or security services or the Government's key 
inculpatory evidence is based on sensitive intelligence sources 
and methods that either should not be disclosed to the defense 
or cannot be revealed in a public trial, or where statements 
critical to the Government's case were obtained through 
coercive means.
    In such cases, Mr. Chairman, where the Government has made 
a finding that the evidence against an accused is both 
probative and reliable and that release, repatriation, or 
adjudication in an appropriate third country is not an option, 
the Government must have recourse to an alternative legal forum 
such as a military commission, subject to oversight and under 
rules that balance a defendant's right to a fair proceeding 
with the Government's legitimate right to protect national 
security interests. President Obama, therefore, was wise in my 
judgment to retain the system of military commissions pending 
various procedural reforms.
    In conclusion, I commend you for holding today's hearing, 
and I urge the Subcommittee to follow a course that enables the 
administration to bring detainee and other terrorism in 
criminal courts, without restriction, while preserving its 
ability to bring prosecutions in military commissions where 
appropriate.
    Thank you.
    [The prepared statement of Mr. Laufman appears as a 
submission for the record.]
    Chairman Cardin. Thank you, Mr. Laufman.
    Ms. Pearlstein.

STATEMENT OF DEBORAH N. PEARLSTEIN, ASSOCIATE RESEARCH SCHOLAR, 
  WOODROW WILSON SCHOOL OF PUBLIC AND INTERNATIONAL AFFAIRS, 
                     PRINCETON, NEW JERSEY

    Ms. Pearlstein. Thank you, Chairman Cardin, Senator Kyl, 
members of the Subcommittee. Thanks for the opportunity to 
testify on this important subject.
    The preliminary report of the Administration Detention 
Policy Task Force, issued last week, announces the 
administration's intention to use reformed military commission 
proceedings to try some fraction of the detainees currently 
held at Guantanamo Bay. As I recently testified before the 
House Judiciary Committee, while I continue to doubt that the 
use of a new military commission system is a necessary course 
of policy, I also believe that it is possible to conduct 
commission proceedings for certain crimes in a way that 
comports with U.S. and international law. Ensuring that any 
future proceedings meet those standards is now a critical 
responsibility of Congress.
    In this brief statement, I would like to highlight just a 
few of the recommendations I have made that I believe are 
essential to help ensure that any commission process going 
forward complies with applicable U.S. and international law. 
These recommendations involve both the legislative framework 
governing the commissions and the protocol recently put forward 
by the Detention Policy Task Force for determining whether to 
proceed with criminal prosecution in a military commission or 
in Article III court.
    The administration is right to recognize that guidance is 
needed in these exceptional circumstances to constrain the 
exercise of prosecutorial discretion. At the same time, the 
protocol put forward needs to be clarified in key respects to 
ensure that discretion is exercised in a way that is consistent 
with the rule of law.
    In recent testimony before the House, I offered a series of 
specific recommendations for how the Military Commissions Act 
of 2006 should be amended if commission proceedings are to 
comply with relevant law, and I ask that that testimony be 
incorporated into the record here, if that is possible.
    Chairman Cardin. Without objection.
    Ms. Pearlstein. Thank you.
    In addition, I think it is critical that any new 
legislation regarding military commissions include a sunset 
provision or other structural mechanism to ensure that the 
commissions are strictly limited in purpose and duration. Such 
structural limitations are essential not only to bolster the 
commissions' already tarnished legitimacy, but also to ensure 
their constitutionality.
    As the Supreme Court has consistently recognized, our 
constitutional structure reflects a strong preference that 
determinations of guilt and innocence be carried out by 
independent courts created under Article III. In keeping with 
this constitutional presumption, the extent to which the 
Supreme Court has approved the use of Article I military courts 
has been strictly limited by the Supreme Court.
    As the Hamdan Court recognized, military commissions had 
historically been courts of necessity, not efficiency, 
recognized only in a limited set of circumstances, the only one 
of which that is relevant here is when commissions are, in the 
words of the Supreme Court, ``incident to the conduct of war.'' 
In this respect, where a new commission system functions other 
than incident to the conduct of a particular recognized war, 
whether because the offenses charges are not war crimes under 
international law or because the commission itself appears to 
extend its mandate beyond events occurring within the period of 
war as recognized by international law, it may be more 
vulnerable to challenges exceeding Congress' authority under 
Article I. Absent clearer formal recognition of the commission 
statute that ``military commissions'' cannot exercise 
jurisdiction over every crime committed at any time, Congress 
may not only exceed its constitutional authority, it will have 
created, in my judgment, a standing national security court by 
another name.
    Finally, let me say a word about the administration's 
proposed protocol for selecting where Guantanamo cases should 
be prosecuted. Any such protocols should reflect two central 
principles, and it is unclear to me from the text of the 
protocol whether it does.
    First, military commission trials may only be considered at 
all in those cases in which prosecutors have probable cause to 
believe that a specifically defined war crime has been 
committed, and that evidence admissible in the commission forum 
will likely suffice to sustain a conviction. In the absence of 
either one of those two findings, none of the other 
considerations identified in the protocol--the gravity of the 
alleged conduct, the relative efficiency of the forum, foreign 
policy concerns, and so forth--are relevant to the 
prosecutorial decision in choosing a forum. Independent, 
professional prosecutors must have arrived at clear and 
affirmative answers to these threshold questions--that is, 
probable cause of a war crime, and evidence sufficient for 
prosecution--before the protocol is even invoked.
    Second, the administration's stated presumption in the 
protocol in favor of prosecution in Article III courts must 
include guidance that makes it clear for prosecutorial 
decisionmakers why and to what extent such a presumption exists 
and how it should be implemented. In my view, such a 
presumption is consistent with, and perhaps compelled by, the 
structure of our Constitution, which recognizes Article III 
courts as the default setting for criminal trials of non-
servicemembers. It is also essential as a policy matter to 
limit the strategic damage continued use of military 
commissions seem likely to cause.
    The President has wisely recognized that Guantanamo has had 
the effect of expanding the base of al Qaeda recruits. Just as 
with the Guantanamo detention system in general, the taint of 
unfairness extends to the commission process in particular. 
Whatever tactical gain may be achieved in trial by commission 
in the first instance will bring with it a strategic cost of 
conducting trials under a system many will likely to continue 
to see as lacking legitimacy.
    As the President himself appears to believe, the United 
States has already suffered significant strategic losses in the 
global struggle against terrorism. It is in our national 
security interest to minimize those losses going forward.
    The single biggest threat to the legitimacy of the military 
commissions is the danger that the commissions will function, 
in perception or reality, as a second-class form of justice for 
cases involving evidence insufficient to prevail in prosecution 
in a traditional Article III setting. Adhering closely to 
constitutional standards of evidence and fiercely protecting 
prosecutorial independence, these are indispensable safeguards 
if commissions are to move forward without the taint of 
illegitimacy that has so infected commission trials to date.
    Thank you, and I look forward for your questions.
    [The prepared statement of Ms. Pearlstein appears as a 
submission for the record.]
    Chairman Cardin. Thank you very much.
    Mr. Edney.

  STATEMENT OF MICHAEL J. EDNEY, GIBSON DUNN & CRUTCHER LLP, 
                        WASHINGTON, D.C.

    Mr. Edney. Thank you, Chairman Cardin, Ranking Member Kyl, 
for the opportunity to come and address this important issue 
today. You have my written statement. I just wanted to 
highlight a few key points before we get started with the 
questions.
    After the President's May 21st speech to the Nation, it is 
becoming clear that there is an emerging consensus now between 
two administrations that some form of military commissions is 
necessary for the prosecution of members of al Qaeda, 
specifically ones at the Guantanamo Bay facility. At the same 
time, in fewer than 6 months, the President's deadline for 
closing Guantanamo will arrive. We have not heard from the 
President's task force on how that will be handled, but what we 
do know is that there are more than 220 detainees at Guantanamo 
today, just about 15 fewer than there were when this 
administration started; and it is almost inevitable that al 
Qaeda detainees, maybe hundreds of them, will end up in the 
United States. Some will be here held as enemy combatants. Some 
will be tried in Federal courts. Some will be tried by military 
commissions. And that is the topic at hand today, an issue that 
Congress will have a significant role in.
    I want to address briefly the considerations, the legal 
considerations that would help in choosing between Federal 
criminal trials and military commissions.
    First, that choice needs to address classified information. 
Classified information is at the forefront of any trial 
involving al Qaeda operatives. Our Nation's military and 
intelligence services have conducted significant surveillance, 
especially against the highest-level individuals in the al 
Qaeda organization, and these are the people that we are 
talking about down at Guantanamo right now, and they have done 
it to protect the American people. So classified information, 
any way you look at it, is going to be either used in the 
Government's case or be relevant to what the defense wants to 
say.
    The fundamental principle here behind the military 
commission rules on this is to avoid forcing the Government 
into a very difficult choice between revealing classified 
information to members of an enemy force during a time of armed 
conflict, a continuing war, on the one hand, and holding them 
responsible and accountable for violations of the law of war, 
including the 9/11 attacks on this country, on the other hand. 
So the Military Commissions Act allows for an impartial check 
by the judge on the reliability of underlying intelligence 
sources and methods without revealing every intelligence 
activity behind the evidence. At the same time the defendant 
receives every piece of evidence that the jury sees and he is 
entitled to all exculpatory evidence, classified or not, unless 
there is an adequate substitute for him to prepare his defense.
    These are special procedures for a continuing war. The 
rules in criminal trials identified by the Classified 
Information Procedures Act are not that. They are not tailored 
to a continuing armed conflict. That law was passed for very 
different circumstances, and if you go back and look at the 
legislative history of that act, you will see it. It was to try 
U.S. Government officials for espionage. These people were 
walking repositories of classified information, and we wanted 
an orderly system for the Government to have notice when they 
intended to bring some of this classified information out at 
trial.
    If we are going to go down the path of trying dozens of 
Guantanamo detainees in Federal court, we need to take a 
critical look at these rules that are now in Federal court 
under the Classified Information Procedures Act. It is no 
answer to say that Federal courts are ready because of a law 
passed 29 years ago for a very different purpose.
    Second, there has been significant discussion today--and it 
was the primary focus of the testimony earlier--about how we 
sort Guantanamo detainees between Federal criminal trials and 
military commissions, and I think this is a crucially important 
topic.
    The administration says that there will be a presumption of 
Federal court trials unless the evidence is too weak or the 
classified information is too important, in which case a move 
back to the military commission system may be considered on a 
case-by-case basis. This approach, I believe, may be a threat 
to the integrity of both the military commission system and the 
Federal criminal justice system, and this is something that 
Senator Feingold pointed out earlier. It sends a message that 
the rigorous procedures in Federal courts for criminal trials 
matter until they matter; or, in other words, they will be 
followed until they make a difference in a particular case, at 
which point we will move to another system of justice.
    For military commissions, the message would be that those 
proceedings are a type of secondary justice not to be 
respected, and I think we can have no doubt when it comes to 
defending the military commission system in the appellate 
process that that message will be taken by the judges that 
review it.
    A better approach would be to designate a class of cases 
for one system or another, the quality of evidence in any 
particular case aside. Try all members of al Qaeda who are 
aliens who have violated the laws of war in military 
commissions. Justify that choice on history, tradition, and the 
necessities of armed conflict. Or try all of those individuals 
in Federal courts. But the least preferable option is to sort 
them on the strength of the evidence to come up with a 
compromise solution, a sliding scale that applies to particular 
cases as we move through the process.
    Third, Congress needs to consider the legal consequences of 
where military commission trials are held, and this is 
something that is an impending issue for this body, because 
unless the President changes his deadline, these new military 
commission trials will be held in the United States, not in 
Guantanamo. And when the Military Commissions Act was passed, 
while that was a possibility, it was not at the forefront of 
the consciousness of this body.
    One legal consequence of holding those trials in the United 
States is the scope of the constitutional rights that will 
apply. The more constitutional provisions applicable, the fewer 
options that are available to Congress in developing rules for 
these trials.
    In the United States, territorial arguments against the 
application of certain constitutional provisions would be wiped 
away once these military commissions come here, and that will 
have all sorts of consequences. Everybody on the panel today 
talked about the need for special rules for hearsay, and I 
think there is a broad consensus on that. But I think those 
would be the first to fall if the trials were held here in the 
United States and full constitutional guarantees applied to 
those proceedings. If the Confrontation Clause applies, the 
Supreme Court's recent decision in Crawford v. Washington would 
suggest that a safety valve for hearsay that depends on 
reliability assessments by a trial judge would be invalid.
    Another consequence would be taking away Congress' 
exclusive discretion as to whether Guantanamo detainees are 
released inside the United States. The power to allow entry 
into this country rests exclusively with this body under the 
Constitution's Naturalization Clause and Article I, Section 8, 
Clause 4 of the Constitution. And the Court would be extremely 
unlikely to order entry after a military commission acquittal 
outside of this country. But once Guantanamo detainees are 
here, that is no longer a power that Congress will have. It 
will be up to other branches.
    Thank you again for the opportunity to testify. I look 
forward to the panel's questions.
    [The prepared statement of Mr. Edney appears as a 
submission for the record.]
    Chairman Cardin. Well, thank you to all three for your 
testimony and your addition to the record.
    I want to start with the first point where there is a 
difference, I guess, between Mr. Edney and Mr. Laufman and Ms. 
Pearlstein, and that is, if we bring these detainees into the 
United States--and I think it is difficult to argue that this 
is not a problem that the United States can avoid being part of 
the solution. We are not going to be able to get other 
countries to handle all the people at Guantanamo Bay. We are 
going to have to assume responsibility for bringing these 
individuals to justice. And if we use our Article III courts, 
they are going to be here in the United States.
    I think it is clear that we can safely detain and 
incarcerate these individuals here in the United States. I do 
not really think that is an issue. As has been pointed out by 
my colleagues, there are hundreds of convicted terrorists 
currently in our prison system.
    The issue, Mr. Edney, that you raise is that if they are 
found to be not guilty or there is insufficient evidence and 
they are here, whether it is a military commission or a trial, 
an Article III court, what do you do if they are not convicted 
or one day they complete their sentence, whatever that sentence 
might be, and they are released? Do we give up our ability to 
require that they leave our country? I do not think we do. I 
think the immigration laws are such that there is no 
responsibility for them to be allowed to remain in the United 
States, particularly when they have violated any of the 
standards that we would allow someone to come into our country. 
So I think we can ask them or require that they leave our 
country.
    So I think we are not giving that up. I think Congress has 
spoken to that, and, of course, we are waiting to hear the 
administration's plan, and we expect that that will be 
addressed somewhere in their plan as to what ultimately would 
happen to individuals who are either found exonerated by the 
court system or have exhausted their sentence here in the 
United States, what would be the administration's position as 
to where they ultimately would be released. I do not have the 
answer to this, but I just think this problem is solvable.
    But I want to--and if you want to comment on that, if any 
of you want to comment on that, that is fine. Mr. Edney.
    Mr. Edney. Yes, I am happy to comment on that. I think that 
is an important point that you raise, Senator, about the 
ability to remove them from the country after an acquittal. 
They are aliens, after all, and you can develop procedures that 
would reduce their standing to stay in this country.
    I think it is important to keep in mind that one of the 
challenges of reducing the Guantanamo population has been 
finding countries willing to take these people because of the 
assessment of those third countries of the dangerousness of 
those individuals, and, perhaps more importantly, finding 
places for some of these individuals where they will not be 
mistreated. Once they are in the United States, we actually 
have a legal obligation under the torture statute and under the 
Convention Against Torture not to return an individual to a 
place where he or she will be mistreated, and that has been a 
big challenge at Guantanamo.
    Chairman Cardin. That is part of commitment. I acknowledge 
that. But let me just take issue with one point. I have talked 
to representatives from other countries concerning this issue, 
and one of the points they raise to me frequently is that, 
fine, we are willing to do our part, but is the United States 
willing to take on a responsibility within its justice system? 
And I am talking about nations in which there is no question 
that they would respect international human rights in regards 
to the manner in which they would handle these transfers.
    So I think it is an issue that the United States has to be 
prepared to deal with, because we are, we are transferring some 
now for trial. I think that is going to happen. But I think you 
raise a legitimate concern, and it may well be that we need to 
change the law to deal with what happens in the eventuality 
that these individuals ultimately are released from our 
criminal justice system, strengthen the laws in regards to 
deportation.
    Mr. Edney. Well, why not change it before they arrive, too? 
That is----
    Chairman Cardin. We might----
    Mr. Edney. Because once they are here, rights will attach, 
and it will be difficult to take them back.
    Chairman Cardin. We might have to.
    Ms. Pearlstein. I guess I would just differ slightly. I 
agree absolutely with your premise. This particular problem is 
a solvable problem. In fact, to the extent I differ, I think it 
may already be solved, and that is, let me just highlight, I 
think, two distinctions.
    First of all, the U.S. obligations not to send anybody back 
to a country where they are likely to face torture and 
persecution and so forth is an obligation under we have under 
our statutes, regulations, treaties and so forth. It attaches 
already in Guantanamo Bay, and whether they stay in Guantanamo 
or come back here, we are under that obligation. And I think 
the evidence of that is reflected in the fact that the last 
administration, just like this administration, thought they 
cannot send the Guantanamo Bay detainees back to places like 
China or wherever to face persecution. So those obligations 
exist whether they are in Guantanamo or whether we bring them 
to the United States. That does not make a difference.
    With respect to what to do if a detainee is brought to the 
United States for trial, is acquitted, or convicted and then 
serves his sentence, under immigration laws as I understand 
them as they exist, that person is certainly deportable, and 
not only are they deportable, we can continue to detain them 
while deportation proceedings are pending. So there is, in my 
view, simply no risk that a Federal court would then 
immediately order the release from the supermax facility in 
Colorado.
    Chairman Cardin. I think that is the concern of people in 
our country. There is concern that the terrorists that are 
currently at Guantanamo Bay could be released in the United 
States, and I think that risk is not there if we follow the 
procedures we are talking about.
    Yes, Mr. Laufman.
    Mr. Laufman. Just to make clear, the alien removal statute 
is that authority that Ms. Pearlstein is speaking of, which 
empowers the Attorney General to do anything at his discretion 
to detain foreign nationals who present a national security 
risk. There is no specific time limit by law on how long the 
Government can detain people for national security reasons. 
There was a Supreme Court case in Zadvydas a few months before 
9/11, where the Court even made a bow toward the necessity to 
detain foreign nationals longer under the alien removal statute 
where there were national security grounds to do so.
    Mr. Edney. Well, I just want to say about that, if you go 
back to the Zadvydas case that held that question open, I do 
not think we know how the Supreme Court is going to rule on 
that, and the Zadvydas decision places a heavy thumb on 
releasing people who cannot be deported within 6 months. So 
that is a risk that we are running, constitutional litigation.
    Chairman Cardin. I would just make this observation. I 
think there is no opposition at all in Congress to making the 
laws as clear as can be that terrorists are not going to be 
released in the United States. I think that is--if we need to 
strengthen the law, we will strengthen the law. I think we 
could pass that without too much difficulty. So I think that 
issue can be handled.
    I understand some of the other points that have been 
raised. I agree with Ms. Pearlstein; I think it is already 
clear. But if we have to make it stronger, we will make it 
stronger that, assuming we go through trials, assuming that 
there are detainees that become incarcerated in the United 
States, either awaiting trial or during trial or after 
conviction, ultimately if there comes a time when they are 
eligible to be released, they are not going to be released in 
the United States. One way or the other they are not going to 
end up in our country. They are not citizens of America. They 
have no rights in that regard.
    Let me turn to Senator Kyl.
    Senator Kyl. Let me just ask and, if you can, a yes or no 
answer, and then if you need to expand, then do it. On this 
last point, do you agree with Senator Cardin's statement just 
now that if the United States brings someone from Guantanamo to 
an Article III court and, for whatever reason, they are at some 
point released, deemed no longer imprisonable--the case is 
dismissed, their sentence has been served, whatever the 
situation--at that point there is no constitutional issue, 
having been brought to the United States and being in the 
United States, that the United States could hold them 
indefinitely in the event that we could not find a place to 
send them, that there is no constitutional issue, no 
constitutional right for that detainee to be released after a 
period of time? Do you agree with that?
    Mr. Laufman. I am not sure I understand the Senator's 
question.
    Senator Kyl. Would there be a constitutional claim by 
someone brought into the United States, having served his 
sentence, for example, with the existing immigration laws that 
allow us to hold an individual who is deportable?
    Mr. Laufman. If it is a foreign national, I do not 
believe----
    Senator Kyl. A foreign national.
    Mr. Laufman. If it is a foreign national, I do not believe 
the individual would have a creditable claim that he cannot be 
detained under the alien removal statute. The boundaries of how 
long that detention can take place may well be litigated 
because Zadvydas left open that question.
    Senator Kyl. Right. Do you agree with that, Ms. Pearlstein?
    Ms. Pearlstein. I agree that it is an open question after 
Zadvydas that, you know, without any legal authority to 
continue to detain somebody, they just need to be deported, and 
we have no place to send them, could we continue to detain them 
beyond 6 months, a year, 3 years, and so forth. The Supreme 
Court has never had occasion to rule on that particular 
question. When it left the question open in Zadvydas, it said 
it may be that terrorism and security cases are an exception, 
and this was a case that came down before 9/11.
    Senator Kyl. Mr. Edney, your view.
    Mr. Edney. I think that there is a substantial risk, 
Senator, that they would have a constitutional claim for 
release in the United States. And if it is a constitutional 
claim, we can pass all the legislation in the world, and we 
cannot really do anything about it.
    Senator Kyl. All right. Thank you.
    Mr. Edney, can you edify us at all on the statements that 
have been made earlier that there have only been three 
convictions in military commissions out of Guantanamo? What are 
the reasons for that?
    Mr. Edney. Well, I go over this somewhat in my written 
statement, but there is a long history behind this. When the 
military commissions really got started in earnest after 
captures, they got started in about the 2003-04 period, and 
they were immediately caught up in constitutional challenges 
and stayed for almost 3 years, well over 2 years, resulting in 
the Supreme Court's decision in Hamdan v. Rumsfeld in 2006.
    Then it took time for the Congress to respond, to pass the 
Military Commissions Act, develop rules under the Military 
Commissions Act, which were not completed until January 2007 
through yeoman work by both the executive branch and the 
Congress.
    After that, charges started to happen, and by January 2009, 
nearly 24 people had been charged by military commissions under 
the MCA. Even in that period, there were at least 7 or 8 months 
that was held up in yet another jurisdictional challenge that 
got resolved by the Court of Military Commission Review in 
September 2007. So because of all of the higher-court 
litigation, the military commissions really have not had a 
chance to get working until the very end, until they were 
suspended on the day after President Obama was inaugurated.
    Senator Kyl. Are you familiar with how many of the 
Guantanamo people--that is to say, alleged enemy combatants 
detained at Guantanamo--have been tried in Article III courts 
in the United States? Or successfully convicted, I think was 
the claim.
    Mr. Edney. Could you run that by me again, Senator?
    Senator Kyl. How many of the detainees at Guantanamo have 
been successfully convicted under Article III courts?
    Mr. Edney. Well, none, and I think that--you know, I 
listened to Senator Durbin's commentary on this. You know, 
there have been a lot of people that have been convicted in 
Article III courts of terrorism offenses. The people at 
Guantanamo are a little bit differently situated. I mean, we 
have down at Guantanamo now al Qaeda leadership, and one 
feature about al Qaeda leadership, without telling anything 
that should come as a surprise to anybody, is that they are 
heavily surveilled, and that makes things awfully complicated 
when it comes to trying them. I mean, they are really in kind 
of a class by themselves. And on top of that, many of those 
prior cases come during the time of continuing armed conflict 
where you want to continue those measures to protect the 
country and be on the offensive against the terrorist 
organization.
    Senator Kyl. Mr. Laufman, I had a question. In your 
testimony, you approvingly quoted the President's statement 
that the existence of Guantanamo likely created more terrorists 
around the world than it ever eliminated. I was intrigued by 
the allegation when the President made it on May 29th, so I 
sent a letter to the National Security Adviser, General Jones, 
and I asked him to provide factual support for the statement. I 
have not received any response from the administration, and 
since you referred to it, I wonder if you could provide some 
factual support for the statement or quantify in some way how 
many or who you are referring to.
    Mr. Laufman. I am not sure that was in my statement, but I 
will say to the Senator that it has been my observation from 
talking to people in the intelligence community--and I even had 
the opportunity when I was in Saudi Arabia about 18 months ago 
to meet some detainees released from Guantanamo, then in a 
Saudi jihadist halfway house program, if you will--to speak to 
them about what had led to their radicalization, what had 
helped to form them as extremists. And some of them talked 
about Abu Ghraib. Some of them talked about Guantanamo Bay. And 
it is hard to form any hard and fast conclusions from that that 
have any statistical, empirical value. But I think it is fair 
to say that Guantanamo became a jihadist propaganda tool to 
recruit people to the cause, and to that extent, it has become 
a national security liability for the United States.
    Senator Kyl. I misspoke. Actually, that was in Ms. 
Pearlstein's statement, and so I apologize for asking the 
question. My time just expired, but I think I could ask Ms. 
Pearlstein, can you provide some enlightenment on the basis for 
the statement?
    Ms. Pearlstein. Sure. The basis of the President's 
statement. You know, obviously I do not have any personal 
knowledge of what the President in particular was basing his 
statement on. The reason I believe the statement is several-
fold, and I would caution that it is difficult to quantify--you 
know, we do not have any way of having any knowledge of what 
the worldwide population is of al Qaeda members currently, but 
the evidence I found the most persuasive in this respect was at 
least three-fold.
    First is testimony in the last few years by people like 
Alberto Mora, who was the former General Counsel of the Navy 
under President Bush, and senior leadership of our military who 
said on the battlefield--in Iraq this was at the time, in 
particular--the two single things they thought were putting 
their troops most in danger were Guantanamo and Abu Ghraib. 
That is one piece of evidence, and the testimony, the sort of 
individual testimony of those folks who are sort of on the 
front line I found quite compelling.
    Senator Kyl. In other words, the assumption is that people 
who would not have otherwise been recruited believed that the 
American system of justice at Guantanamo was insufficiently 
rigorous and, therefore, decided to object by becoming 
terrorists?
    Ms. Pearlstein. I do not think they--I think the short 
answer is----
    Senator Kyl. That is a bit of a stretch, isn't it?
    Ms. Pearlstein. No. I think if you look at----
    Senator Kyl. What standard of justice does somebody in 
Saudi Arabia test the American standard against to reach the 
conclusion that we are not fair?
    Ms. Pearlstein. I think that is a bit of a misstatement--or 
a bit of a mischaracterization, I would say. I think the 
argument they were making--and if you look on jihadist 
websites, recruiting websites, the pictures on those websites 
are pictures of Abu Ghraib and pictures of Guantanamo Bay. I do 
not think they are making--I do not think they are necessarily 
making a highly specific argument about what the procedural 
rules of the military commissions are. They are making a 
symbolic----
    Senator Kyl. But if I--and I apologize for interrupting----
    Ms. Pearlstein [continuing]. Argument and they are 
succeeding.
    Senator Kyl. But, really, what that would suggest is that 
anything that they object to about our Western way of life we 
should compromise because it might be a reason for them to 
recruit each other.
    Ms. Pearlstein. Absolutely not. I absolutely disagree with 
that statement.
    Senator Kyl. I am glad you disagree with that.
    Ms. Pearlstein. I would argue that they are in so many 
respects completely wrong. The problem is we do not get a 
choice in the United States about what our enemies decide to 
do. What we can do, to the extent possible--and I think in this 
case, the case of the treatment of detainees and the trial 
process we use, it is incredibly possible to minimize the risk 
that what we are doing is going to make us more enemies than we 
already have.
    Chairman Cardin. Let me just raise one or two points very 
quickly.
    First, in regards to use of Article III courts with 
terrorists in the United States, there was no effort made by 
the previous administration to prosecute detainees at 
Guantanamo Bay under Article III courts. So the numbers that 
were raised earlier dealt with terrorists who were apprehended 
outside of Guantanamo Bay, some Americans, some non-Americans, 
who have been prosecuted successfully under Article III trials.
    I want to just ask a question. If you have a person at 
Guantanamo Bay today who is not eligible for a military 
commission under the war crimes issue, so it could be tried 
either in Article III or it could be tried in a military 
commission, and you have the evidence to proceed either way you 
want to, what do you think should be the preference? Should we 
try that person in a commission, or should we try that person 
in an Article III court? If we have a true option one way or 
the other to, we believe, successfully prosecute that person 
for criminal actions, what is your preference? And why?
    Mr. Laufman. My preference as a general rule of thumb is to 
bring those cases in Article III courts except in cases where, 
for policy reasons, I believe they belong in a military 
commission, cases involving crimes----
    Chairman Cardin. The reason why?
    Mr. Laufman. Crimes against humanity, war crimes.
    Chairman Cardin. I excluded that.
    Mr. Laufman. My preference for the Article III forum is 
that I believe it holds us to the highest standards. It confers 
the greatest legitimacy on the outcome of those cases. It is an 
enormous educational tool by virtue of the constitutional right 
to public trials for the illumination of the underlying 
evidence regarding the conduct at issue. It produces a result 
that I think stands the test of time. Our courts are familiar 
with applying the rules of evidence, procedural rules to novel 
sets of facts. We have an enormous empirical body of history to 
rely upon over the last 10 years, and going back before 9/11 in 
the cases starting in the Southern District of New York and 
coming through my old district. We do not have to reinvent the 
wheel each time.
    Chairman Cardin. Ms. Pearlstein.
    Ms. Pearlstein. As a policy matter, which is how I 
understand your question, I think the preference should be for 
Article III courts for the reasons I was getting at just a 
moment ago in my statement. With the prosecution in an Article 
III court, you get all of the tactical benefit of a successful, 
almost always successful prosecution without any of the 
strategic downside of using a forum that is still perceived--
and hopefully the new commissions will be better, but generally 
the military commission forum is still perceived as a second-
class system of justice.
    There is a tremendous amount of work that has to be done to 
overcome that perception and reality. I think we are on the 
right track now. But in the meantime, there is no more powerful 
tool for securing the long-term detention of terrorist suspects 
than prosecution in Article III courts.
    Chairman Cardin. Mr. Edney.
    Mr. Edney. Well, it is hard for me to say that I have a 
policy preference because I am really just used to giving legal 
advice on this question. I think my legal advice on it would be 
the following: If the premise is right that has been recognized 
by two administrations now that you need some military 
commission system for some members of al Qaeda to hold them to 
account for their crimes against the law of war, I think it is 
important that you think very seriously about putting all alien 
members of al Qaeda who have violated the laws of war into that 
military commission system, because what you cannot have--I do 
feel this relatively strongly. You cannot have a situation 
where you go to the military commission system when a Federal 
court trial in a particular case gets too hard. And I think 
there is lots of history, lots of tradition, lots of very 
strong arguments for using military commissions for a class of 
individuals, members of al Qaeda during a continuing time of 
armed conflict, to hold them accountable for their violations 
of the laws of war. I do not think it is possible to argue that 
the September 11th attacks, for example, were not a violation 
of the laws of war, and that was part of the armed conflict 
against the United States.
    Chairman Cardin. Thank you.
    Senator Kyl.
    Senator Kyl. Let me just pursue it, because I think this is 
an intriguing argument. If the claim--and all three of you have 
made this point one way or another, that you do not want to be 
accused of a double standard, in effect, of what Mr. Edney 
talked about, that the Article III cases are great until they 
become too hard, until their very protections would preclude a 
prosecution, then you turn to the second-class justice, clearly 
we want to avoid that kind of construct here. And so Mr. 
Edney's suggestion is that you try, rather than doing a case-
by-case analysis, which necessarily will hang essentially on 
that question, that you ought to decide in advance that some 
are appropriate for one and some are appropriate for the other.
    Now, contrast that with the fact that, of course, one of 
the justifications for military commissions is that you do not 
have to deal with some of the protections that are guaranteed 
in the Article III courts--the use of classified information 
that would become deleterious to our national security and so 
on.
    Let me just ask you, Mr. Laufman. Does Mr. Edney have a 
point here, that to some extent you are almost conceding that 
military commissions are a second-class kind of justice if you 
start out with the presumption that you should start with 
Article III presentations?
    Mr. Laufman. Well, I start out with that presumption only 
with respect to those cases that I feel as a policy matter do 
not belong in military commissions. There are some categories 
of cases that I do believe belong in military commissions, and 
I might even go so far as to agree with Mr. Edney that the 
Moussaoui case could have probably been brought in a military 
commission.
    Senator Kyl. If I could just interrupt, so you would both 
agree that there are some cases that you ought to just put off 
in a corner and say these are military commission cases 
irrespective of the case-by-case analysis, but then get to the 
case-by-case analysis for a large number of remaining cases?
    Mr. Laufman. It is my own view that there are some cases 
for policy reasons that properly belong in a military 
commission.
    Senator Kyl. Right. But then as soon as you start doing the 
case-by-case analysis--and most of that will hang on how easy 
or how tough it is to get the prosecution, won't it?--then 
don't you get into this dilemma that Mr. Edney discussed?
    Mr. Laufman. There will be tough judgments, there is no 
question about it, that have to be made. Those kinds of 
judgments are made all the time, whether even to bring criminal 
prosecutions, you know.
    Senator Kyl. So let me just ask you this: Suppose that you 
are responding to an intellectual argument rather than the sort 
of recruiting argument that Ms. Pearlstein was talking about 
earlier, somebody who is criticizing our system and says, well, 
your system is bad because, you know, you say Article III 
except when it gets too tough, then you just revert to the 
military commissions. And you would defend a case-by-case 
analysis of which one to go to by saying what?
    Mr. Laufman. It is going to depend on the specific facts of 
each case. I think as Mr. Kris was saying, these are very fact-
intensive cases. You know, what is the admissible evidence in 
this case? You know, can the Government meet its obligations 
under the principles of Federal prosecution? You know, can it 
sustain a conviction? Can it protect----
    Senator Kyl. But all of those--excuse me again for 
interrupting, but all of those get to how easy it is to get the 
prosecution.
    Mr. Laufman. Well, if you begin with a presumption in favor 
of Article III prosecutions, I think it is propelling you down 
that road.
    Senator Kyl. I agree, and I think that was part of Mr. 
Edney's concern or question.
    Mr. Laufman. But I am not troubled as a policy matter if we 
all begin from the position of doing everything necessary and 
appropriate to protect national security. If we have to in some 
cases send some cases to military commissions to ensure that 
bad actors receive justice in an appropriate forum about which 
there can be no controversy as to its legitimacy, I do not have 
a problem with that.
    Senator Kyl. So your response is just the practical one, 
yes, it may be that one could argue we are relegating this 
situation to a second-class situation, but you respond by 
saying, first of all, it is not second-class, we have a lot of 
good procedures built in, especially with the legislation that 
is being proposed; and, second, just as a matter of national 
security, there are some things which do deserve to be 
protected above all?
    Mr. Laufman. That is right, and I do not know that it is 
necessarily fair to refer to the military commissions as a 
second-class----
    Senator Kyl. I agree.
    Mr. Laufman [continuing]. System of justice. It is a 
different system of justice which has a rich history, which has 
been discussed, you know, at length here today.
    Senator Kyl. Mr. Edney.
    Mr. Edney. Maybe I could just put a finer point on this. If 
given the choice between the Senate's resolution that was 
passed the other day to say that this entire class of 
individuals, alien, unprivileged, enemy belligerents I think 
they now call them, should be tried by military commission, on 
the one hand, and on the other hand, the proposed presumption 
that could be deviated from on a case-by-case evidentiary 
basis, I think we have to go with the Senate's resolution. And 
this is really not just because of bolstering the military 
commission system, but protecting the integrity of the criminal 
justice system. It cheapens the Federal criminal justice system 
where these protections are, you know, cast aside on a case-by-
case basis. This is something the Supreme Court thought a lot 
about in considering the constitutionality of civil 
proceedings, you know, in a series of Supreme Court cases.
    Where States propose we should be able to detain somebody 
civilly if they are dangerous, the Supreme Court said, no, you 
cannot use this as a safety valve of the criminal justice 
system, not really because of the civil commitment proceedings 
but because it hurts the criminal justice system. That is what 
the--and I think that is what this Committee needs to keep in 
mind as it evaluates the proposals of sorting these individuals 
into various buckets. The process is ongoing right now.
    Senator Kyl. It is an interesting question.
    Just let me ask all of you this last question. We talked to 
the first panel about whether if you start from the presumption 
that you should go to Article III courts, of necessity you are 
going to increase the requirement for giving Miranda warnings 
much earlier in the processing of these detainees. Now, the 
answer from the first panel seemed to be that, no, because you 
have to start with the assumption that the interrogation is 
going to be initially for the purpose of national security, and 
only after that has been accomplished do you then confront the 
question of now what do we do with this person who could be 
tried in Article III courts. That is the presumption. So that 
perhaps the Miranda warning still would not be given so early 
in the process that it could interfere with the acquisition of 
intelligence information. I think that is a summary of what the 
first panel said. I would be interested in your evaluation of 
that.
    Mr. Laufman. I will start. These are considerations that 
have been in play for years now in cases where individuals are 
arrested and detained, sometimes by U.S. military forces, 
sometimes by other countries, and where the imperative is to 
gather as much actionable intelligence as possible without 
grafting into the process in ways that could have a chilling 
effect on the elicitation of information, criminal justice 
based policies like Miranda.
    Take the case of Abu Ali that I have talked about. He had 
been held by the Saudis for many months. The FBI was not given 
access to him for many months. Then in September 2003, a 
special team of FBI agents went in just for the purpose of 
conducting an intelligence interview. Well, we knew as 
prosecutors later there was nothing we could use from that 
interview, but when I went over there to talk to Saudi 
officials and we hoped to have a crack at Abu Ali, I knew I had 
to have a Miranda warning with me. It did not affect what had 
gone on before. It would not have affected the efforts to 
elicit additional intelligence information from him afterward. 
But the minute I came in as a prosecutor or agents came in with 
the idea of collecting information for use in a criminal 
prosecution, then we had to have Miranda in mind.
    Ms. Pearlstein. If I could just add to that just a bit, I 
think there are two critical points on the Miranda front. The 
first is that, as Spike Bowman has told me--and he used to be 
FBI counterterrorism director, senior person in the FBI--if 
somebody does not want to talk to you, they are not going to 
talk to you whether you mirandize them or not. So if you happen 
to pick up a high-value detainee or any detainee who does not 
want to talk to you on the battlefield, you cannot lawfully 
coerce them into talking to you, but the existence of Miranda 
or not does not make a difference.
    Secondly, in his experience, the vast majority of detainees 
who you do mirandize in the criminal justice system, or any 
other context, end up talking to you anyway if you have an 
effective interrogation or interview set of techniques.
    So I think the fear of Miranda as somehow the end of the 
acquisition of information is sort of substantially overstated.
    The second thing I would say--and this is just to emphasize 
this point--the courts have already held in the course of 
terrorism prosecutions that have been successfully brought 
since 9/11 and before that it is possible to, you know, if 
somebody is held by a foreign intelligence service, by our own 
intelligence service where they are initially detained, for 
example, even up to a period of some weeks, and interviewed for 
intelligence purposes, that information is not necessarily 
voluntarily given. But once you after that period of weeks give 
the Miranda warnings, the information you subsequently obtain 
can still be deemed, depending on the circumstances, voluntary 
enough to then be admissible in criminal court.
    So I actually think this is another example of an eminently 
solvable problem.
    Senator Kyl. Mr. Edney.
    Mr. Edney. Senator, I would make three quick points about 
this.
    First, I think if the presumption is in favor of Federal 
criminal trials and I were providing legal advice to the 
Department of Defense, I absolutely would advise for any 
statement that you actually wanted to use in court, you would 
want to mirandize it. And, you know, there is an interesting 
thing in Mr. Kris' testimony on this, too. He wants to 
introduce a voluntariness standard into the military 
commissions process, and if were providing legal advice 
regarding that, I would advise mirandized statements even for 
people that we would send to a military commission, because it 
is the same inquiry. I mean, Miranda came out of the 
voluntariness standard. The Court decided that it was too 
difficult to manage and wanted a prophylactic rule. I think 
that is probably where we would be headed, you know, in the 
military commissions process if there was a voluntariness 
standard. Certainly, we would look to the knowledge of the 
detainee as to his right to an attorney and stop talking and 
various things like that.
    A second point that I would make--and I think this is an 
important one--if you are moving to a system where you do not 
want to have the detention of enemy combatants to the end of 
hostilities--which is kind of the old system, right?--but 
instead you want to use Federal criminal trials and military 
commission trials for the vast majority of these cases for 
incapacitation purposes, making sure that an initial statement 
from a detainee is done under conditions of voluntariness 
becomes crucially important for the military, and they are 
going to be pulled in two different directions: first, to 
gather intelligence from these individuals to save their lives; 
and, second, to look down the road where we do not have to 
release these folks in a year or two because a statement was 
not properly taken on the battlefield. That is a very dangerous 
conundrum to put our Nation's armed forces into.
    So these considerations need to be kept in mind both in the 
choice between Federal criminal trials and military commission 
proceedings, but also in the rule that Mr. Kris is urging upon 
this Committee, and the Armed Services Committee more 
specifically, with regard to military commission trials.
    Senator Kyl. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Cardin. Well, I want to thank all three of you for 
your testimony. I think it has been very helpful. These are not 
easy issues, and they are going to continue to be of interest 
to the Judiciary Committee as well as the Armed Services 
Committee and every Member of the U.S. Senate. We are not going 
to solve the issue today, and, of course, we are still awaiting 
the administration's detailed reports on the closing of 
Guantanamo Bay, which we do not have. But I think today's 
hearing prepares us to be better prepared as we go forward to 
developing the policies necessary to protect the security of 
our country.
    Chairman Leahy was unable to attend today's hearing. He has 
other conflicts, but he asked that his statement be made part 
of the record. Without objection, it will be.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Cardin. The Committee record will remain open for 
7 days for additional questions by members of the Committee, 
which I would urge the witnesses, if such questions are 
propounded, to please respond promptly.
    And, with that, the Subcommittee will stand adjourned. 
Thank you all very much.
    [Whereupon, at 5:16 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions follows:]
    [Additional material is being retained in the Committee 
Files, see Contents.]

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