[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
----------
U.S. GOVERNMENT PRINTING OFFICE
57-711 PDF WASHINGTON : 2010
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
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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
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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
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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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