[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
JUSTICE FOR AMERICA: USING MILITARY COMMISSIONS TO TRY THE 9/11
CONSPIRATORS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
APRIL 5, 2011
__________
Serial No. 112-29
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida DEBBIE WASSERMAN SCHULTZ, Florida
BEN QUAYLE, Arizona SHEILA JACKSON LEE, Texas
MIKE QUIGLEY, Illinois
Caroline Lynch, Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
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APRIL 5, 2011
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5
WITNESSES
David Beamer, father of United 93 Passenger Todd Beamer
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Charles D. Stimson, Senior Legal Fellow, The Heritage Foundation
Oral Testimony................................................. 16
Prepared Statement............................................. 17
Stephanie Hessler, Fellow, Manhattan Institute for Policy
Research
Oral Testimony................................................. 27
Prepared Statement............................................. 28
Stephen A. Saltzburg, Professor of Law, George Washington
University
Oral Testimony................................................. 32
Prepared Statement............................................. 33
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Louie Gohmert, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Crime, Terrorism, and Homeland Security 52
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 85
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 88
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 93
Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 98
Department of Justice Fact Sheet................................. 100
Document from Human Rights First................................. 103
Letter dated November 25, 2009, from Carolyn B. Lamm, President,
the American Bar Association (ABA), to the Honorable Eric H.
Holder, Jr., Attorney General of the United States............. 108
Letter from military leaders to the President.................... 112
Letter from John C. Coughenour, United States District Judge,
Western District of Washington................................. 115
Letters from 9/11 Families for a Safe and Strong America,
received from family members, first responders, survivors,
friends, and co-workers of the fallen.......................... 129
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Human Rights First report entitled: In Pursuit of Justice, Prosecuting
Terrorism Cases in the Federal Courts, May 2008; submitted by the
Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan, and Ranking Member, Committee on the Judiciary.
This report is available at the Subcommittee and can also be
accessed at:
http://www.humanrightsfirst.org/wp-content/uploads/pdf/080521-USLS-
pursuit-
justice.pdf
Human Rights First report entitled: In Pursuit of Justice, Prosecuting
Terrorism Cases in the Federal Courts, 2009 Update and Recent
Developments, July 2009; submitted by the Honorable John Conyers,
Jr., a Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary. This report is
available at the Subcommittee and can also be accessed at:
http://www.humanrightsfirst.org/wp-content/uploads/pdf/090723-LS-
in-pursuit-
justice-09-update.pdf
JUSTICE FOR AMERICA: USING MILITARY COMMISSIONS TO TRY THE 9/11
CONSPIRATORS
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TUESDAY, APRIL 5, 2011
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:01 a.m., in
room 2141, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Smith, Gohmert,
Goodlatte, Lungren, Poe, Marino, Gowdy, Adams, Scott, Conyers,
Johnson, Pierluisi, Chu, and Quigley.
Staff present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Sam Ramer, Counsel; Sarah Allen, Counsel;
Anthony Angeli, Counsel; Lindsay Hamilton, Clerk; (Minority) ;
Joe Graupensberger, Counsel; Sam Sokol, Counsel; and Veronica
Eligan, Professional Staff Member.
Mr. Sensenbrenner. The Subcommittee will come to order.
Today's hearing examines the role of military commissions
in granting justice to the families of the September 11
attacks.
Yesterday, the Obama administration announced it will try
the 9/11 conspirators, including Khalid Sheikh Mohammed, in
military commissions rather than in a U.S. civilian court.
I find it a strange coincidence that the Administration
decided to announce this 180 degree turn in policy the day
before this hearing and on the very same day that the President
announced his reelection campaign. I and many others believe
that the security of the United States should not depend upon
politics. The President's 2009 executive order to vacate
military commissions was a decision based on political ideology
and not the safety of America or the will of its people.
I also find it ironic that Attorney General Holder cites
the delay in trying KSM and his co-conspirators as his reason
for today's decision, given that it was the decision of this
Administration that brought justice for America to all. In his
statement, General Holder laid the blame for the delay in the
9/11 trials at Congress' feet, saying that he was forced to
proceed with military commissions because of our decision to
prohibit the use of Federal funds for civilian trials of these
and other Gitmo detainees. As they say in New York City, it
takes real chutzpa to say something like that. In terms of the
criticism that General Holder had of the Congress, Congress did
the right thing. The Administration was off on the wrong track,
and I can say that we can chalk one up for Congress on a
bipartisan basis on this issue.
Congress was merely doing what the President failed to do
over the last 2 years, which is to respond to the demands of
the American people who overwhelmingly opposed bringing KSM and
cohorts to the United States for trial. But since he is handing
us credit for bringing KSM to justice, we will take it with one
caveat: we must acknowledge the efforts of the 9/11 victims'
families in particular. It was their dogged determination and
endless advocacy, I believe, that brought this Administration
to the path of reason and common sense.
It should have not have taken over 2 years to make this
decision. The victims of the families should not have had to
wait until the President announced his reelection campaign for
the Administration to recognize what most Americans know in
their hearts, that KSM and other co-conspirators are enemy
combatants and that the atrocities of September 11 were not
just domestic crimes like robbery or burglary. They were acts
of unmitigated war against the entire country, and as such, all
of the United States and its people were victims in some way of
this attack.
I hope that the delays caused by the Administration's flip-
flopping will not sabotage the success of the military
commissions. And since we are all here, we have an excellent
opportunity to examine the good sense of proceeding with
military tribunals and find out whether these political delays
have harmed the chance of achieving justice.
On September 11, 2001, nearly 3,000 men, women, and
children were slaughtered in one of the most heinous assaults
in our Nation's history. The country mobilized for war, and in
2003, 9/11 mastermind KSM was captured in Pakistan. KSM became
a valuable asset in our war against al Qaeda, providing
operational details about that organization on every level,
even to the point of explaining how al Qaeda goes about
recruiting more terrorists. Once every bit of operational
intelligence was obtained from KSM, the military began its
legal proceedings to hold him accountable for the terrorist act
he designed.
KSM has never been shy about his act of war against the
United States. In March 2007, KSM testified in a closed-door
hearing in Guantanamo. According to transcripts of the hearing
released by the Pentagon, he said I was responsible for the 9/
11 operation from A to Z.
He and four other 9/11 conspirators were charged in a
military commission trial in 2008. They were assigned lawyers
for their defense under the Code of Military Justice, and in
December 2008, KSM and his co-conspirators offered to plead
guilty for their roles in the September 11 atrocities.
But on January 21st, 2009, Khalid Sheikh Mohammed received
a stay. On his first day in office, President Obama, by
executive order, halted the trial against KSM and the others
and ordered the Guantanamo Bay facility closed.
In November of the same year, Attorney General Eric Holder
announced that he would house KSM in Manhattan and try him in a
Federal courthouse 2 blocks from Ground Zero, granting him
every constitutional right afforded U.S. citizens.
Today we will examine the use of military commissions to
try KSM and the other 9/11 conspirators. Those al Qaeda
soldiers must be tried in military commissions for the simple
fact that what they did on that fateful day 10 years ago was
not a crime. It was an act of war.
I would like to extend a special welcome to Mr. David
Beamer, father of Todd Beamer, the brave father of three who
saved countless people when he fought back against the Flight
93 hijackers, uttering the words, ``let's roll,'' before taking
action. The families of the 9/11 victims have waited patiently
for justice for their loved ones. Ten years is long enough. It
is time for justice now.
It is now my pleasure to recognize for his opening
statement the Ranking Member of the Subcommittee, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman, and I welcome this
hearing on an important issue as we discuss some of the
fundamental principles underlying how we attempt to achieve
justice in this country.
Yesterday the Administration announced that it would refer
cases and the accused 9/11 plotters to military commissions. I
view this announcement not has a choice between viable
alternatives but merely reverting to the last possible option
against those who are accused of attacking our people.
The Attorney General had announced at the end of 2009 that
the 9/11 plotters would be tried in Federal court and that he
was extremely confident in the strength of these cases. Since
that time, Congress has imposed restrictions, making it
impossible for the Guantanamo Bay detainees to be brought to
the United States for those trials in Federal court.
Yesterday's announcement is a reflection of the fact that
Congress left no practical option open to the Administration,
and I believe the actions of Congress in this regard were
unwise. Our Federal criminal justice system with its laws and
procedures is time-tested and provides the best chance for
obtaining verdicts against guilty defendants which we will have
confidence will withstand scrutiny against court challenges.
The Federal courts have convicted 400 people in terrorism-
related charges over the last 10 years. In contrast, there have
been only six convictions under the commissions since 9/11, and
during that time, we have learned that the survivability of the
commissions under court challenges cannot be taken for granted.
In fact, Federal courts have a stronger record of securing
convictions and imposing tough punishments than military
commissions do.
A report by the Center for American Progress found that
criminal courts are a tougher and more reliable forum for
prosecuting terrorists than military commissions. In fact,
terrorists prosecuted by commissions had received shockingly
short sentences and some have already been released as of the
date of the report a year ago. We should have the confidence in
the ability of Federal courts to continue doing their job in
such cases.
This situation reminds me of the counterproductive juvenile
justice policy we have pursued in this country over the past 2
decades. We have studied the idea of trying more juveniles as
adults, and we have found that in the adult system those
studies have revealed that the sentences are shorter for those
juveniles and that the recidivism rate is higher. However,
politicians insist on campaigning down that path. It does more
harm than good just because it sounds tough.
Prosecuting terrorists in front of military commissions
likewise sounds tougher than civilian courts, and as we have
seen with prior successful challenges to military commissions,
we cannot know whether the commissions and perhaps the
convictions obtained under them will survive court challenges
until those challenges have been brought and considered all the
way to the Supreme Court.
Ultimately by trying terrorists in Federal courts, we
protect our citizens and the principles of the Constitution
which is our ultimate defense against threats to our Nation and
our freedom. When Judge Bill Young sentenced the shoe bomber,
Richard Reid, in Federal court, he said, see that flag, Mr.
Reid? That is the flag of the United States of America. That
flag will fly long after all of this is forgotten. That flag
stands for freedom. You know it always will. Custody, Mr.
Officer. Stand him down.
I thank the witnesses for testifying today. It is another
hallmark of our democracy that we will hear and consider
different points of view, learn from each other, and we are all
the better for it. So I look forward to hearing their testimony
and thank you, Mr. Chairman, for calling the hearing.
Mr. Sensenbrenner. Thank you, Mr. Scott.
The Chair recognizes the Chairman of the full Committee,
the gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
It has been nearly 10 years since the attacks on September
11. Yet, Khalid Sheikh Mohammed, otherwise known as KSM, and
his four co-conspirators still have not been brought to justice
for an act of war that took the lives of nearly 3,000 innocent
people.
It is unfortunate that it took the Obama administration
more than 2 years to figure out what the majority of Americans
already know, that KSM is not a common criminal. He is a war
criminal.
After KSM was captured, many of us believed that once he
was thoroughly interrogated, he would be brought to justice.
The prior Administration tried to do just that by bringing him
before a military tribunal. Unfortunately, President Obama
brought that process to a halt as one of his first acts as
President.
Now, on the first day of his reelection campaign, the
President has reversed himself yet again and ordered the 9/11
conspirators to be tried in military commissions.
Last year, Congress restricted the use of Federal funds to
try any Gitmo detainee in the U.S. courts, and two-thirds of
the American people support military commission trials for the
9/11 terrorists. Trying foreign terrorists in civilian courts
makes it harder for prosecutors to obtain a conviction. We saw
this recently with the civilian trial against Gitmo detainee,
Ahmed Ghailani, the first foreign terrorist detained at
Guantanamo Bay to be tried in civilian courts. This trial was
the test run for the Obama administration's plan to try foreign
terrorists in U.S. courts. It was also a near disaster.
Ghailani was acquitted of all but one of the 285 counts against
him.
Despite yesterday's announcement, I am concerned that there
are some at the Justice Department who will not give up their
fight for undeserved terrorist rights. Simply because the
Administration has finally decided to do the right thing with
KSM doesn't meant that all foreign terrorists will be tried in
military commissions. The Administration needs to develop a
clear and consistent policy that treats all foreign terrorists
as enemy combatants.
Ten years is too long to wait for justice. But after nearly
a decade, I hope that this trial will provide some satisfaction
to the families of the victims of 9/11.
Thank you, Mr. Chairman. I yield back.
Mr. Sensenbrenner. The Chair now recognizes the Chairman
emeritus junior grade and Ranking Member, the gentleman from
Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner and Members.
This is an important hearing, and I am glad that the
witnesses chosen are here today. I thank you very much for
coming.
Now, it just seems to me that there are those here who
support the proposition that military commissions are better
for trying people accused of war crimes because there is more
likelihood of a conviction. Now, for Members of the Judiciary
Committee to take that position is one that I respectfully
cannot agree with. I think there should be some other test, and
perhaps we will get that from our witnesses today.
When I look at the lists of people my staff has evaluated
and talked about, the people that I think quite a bit of have
come out in support of the regular Federal trials. After all,
no one has been convicted yet, and it is amazing how the
presumption of innocence doesn't apply in some cases but it
applies in others. And that is what we are here to talk about.
But I want to thank first the Constitution Project, the
Human Rights First organization. And I am going to put in the
record the statements and hope that I will have an opportunity
for further discussions with Members of the Judiciary
Committee.
Mr. Sensenbrenner. Without objection, the statements will
be placed in the record.*
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*The material referred to is not reprinted in this hearing record
but is available at the Subcommittee and can be accessed at http://
www.humanrightsfirst.org/wp-content/uploads/pdf/080521-USLS-pursuit-
justice.pdf and http://www.humanrightsfirst.org/wp-content/uploads/pdf/
090723-LS-in-pursuit-justice-09-update.pdf
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Mr. Conyers. Thank you, sir. But these statements will come
from Supreme Court Justice Anthony Kennedy; the former
Secretary of State, Colin Powell; the former Director of the
Federal Bureau of Investigation, Bill Sessions; the former Rear
Admiral John Huston; Brigadier General James Cullen; the
American Correctional Association; and a letter from the
American Bar Association in support of prosecuting alleged
terrorists and terrorists in our Federal court system and
particularly Judge John C. Coughenour of the Western District
of Washington who has handled as many of these cases as any
member of the judiciary.
In the case of Ahmed Ressam, the so-called Millennium
Bomber, it involved 3 months of trials. He went up to the Ninth
Circuit three times, to the Supreme Court once. And he says
that this definitively concludes in his experience that these
trials in a Federal court are not injurious or should not be
rejected.
Now, this does not mean that there are no circumstances
under which military commissions----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Conyers [continuing]. Cannot be approved.
And I thank the gentleman.
Mr. Sensenbrenner. Without objection, all Members' opening
statements will be placed in the record at this point.
It is now my pleasure to introduce today's witnesses. David
Beamer is the father of the late Todd Beamer, one of the
passengers on United Flight 93 which was downed in Shanksville,
Pennsylvania during the terrorist attacks on September 11,
2001. Todd Beamer was a resident of Cranbury, New Jersey where
he worked as an account manager for Oracle Corporation. He was
traveling to California for a business meeting when the 9/11
conspirators hijacked United Flight 93. Along with other
passengers, Todd disrupted the terrorist plot and diverted the
plane from its intended target of Washington, D.C. Todd and 39
others were killed in the plane crash.
Since 9/11, David Beamer has been a tireless advocate for
9/11 families and policy issues relating to national security
and terrorism.
Charles ``Cully'' Stimson is a leading expert on criminal
law, military law, military commissions and detention policy at
The Heritage Foundation's Center for Legal and Judicial
Studies. Before joining Heritage, Stimson served as the Deputy
Assistant Defense Secretary for Detainee Affairs where he
advised the Secretary of Defense on detainee issues worldwide,
including at Guantanamo Bay, Iraq, and Afghanistan where he
coordinated the Department's detention policy and operations
with his senior counterparts at the National security Council,
the Justice and State Departments, the military services, and
the intelligence community.
He chaired the Defense Senior Leadership Oversight
Committee which was responsible for tracking and executing all
492 recommendations from the 12 major investigations into the
Defense Department's detention policy and practices in the
aftermath of the Abu Ghraib prison scandal.
He led three high level European delegations on official
trips to Guantanamo and also traveled to Guantanamo dozens of
times to escort Members of the House, Senate, media,
policymakers, academics, and other influential thinkers.
He spent 13 years as a criminal prosecutor, defense
attorney, and law professor. He is a decorated military veteran
and continues to serve as a judge advocate for general
reservists in the Navy where he sits as a military judge. In
his three active duty tours in the Navy, Stimson served as a
military prosecutor, defense attorney, and deployed to East
Africa in 2000 for Operation Natural Fire as the force judge
advocate and deployed with Navy SEALS in the joint special
operations JAG in 2001.
He received his law degree from the George Mason University
School of Law.
Stephanie Hessler is an adjunct fellow at the Manhattan
Institute where she writes frequently on constitutional law,
national security law, counterterrorism law, and judicial
nominations. Previously she served as a constitutional lawyer
for the Senate Judiciary Committee and drafted legislation and
advised on a wide variety of topics, including terrorist
surveillance, domestic wiretapping, Guantanamo detainees, and
habeas corpus. Ms. Hessler clerked for Chief Judge Boyce F.
Martin, Jr. at the United States Court of Appeals for the Sixth
Circuit. She received her B.A. in English literature from
Kenyon College and her J.D. from the New York University School
of Law.
Professor Stephen Saltzburg joined the George Washington
University School of Law in 1990. Before that, he taught at the
University of Virginia School of Law. Prior to teaching, he
held numerous governmental positions, including Associate
Independent Counsel in the Iran-Contra investigation, Deputy
Assistant Attorney General in the Criminal Division of the U.S.
Department of Justice, the Attorney General's ex officio
representative on the U.S. Sentencing Commission, among others.
In 2002, he was appointed to the ABA President's Advisory Group
on Citizen Detention and Enemy Combatant Issues, and he chaired
the ABA Criminal Justice Section from 2007 to 2008. He received
his B.A. from Dickinson College and his J.D. from the
University of Pennsylvania.
Without objection, the witnesses' statements will appear in
the record in their entirety.
Each witness will be recognized for 5 minutes to summarize
their written statement. We have a three-colored light in front
of each of you. The yellow light means you have got a minute
left. The red light means the time is up, folks.
So I will first recognize for 5 minutes Mr. Beamer. Thank
you very much for coming here.
TESTIMONY OF DAVID BEAMER, FATHER OF UNITED 93 PASSENGER TODD
BEAMER
Mr. Beamer. Chairman Sensenbrenner, Members of the
Committee, I appreciate this hearing that is taking place and I
am thankful for the opportunity to speak today.
Unfortunately, the remarks I originally prepared to
present, after yesterday's surprise announcement by the
Attorney General, no longer seem adequate. I had planned to
come here today to press our case for justice for our beloved
families and friends and all those whose lives were cut short
on that horrible day simply now known as 9/11. My appeal was to
be a humble one. How, I planned to ask, after all we witnessed
and experienced, individually and as a Nation, on that
terrible, dark day can we satisfied to let justice founder?
Americans answered the call that day--fire fighters,
police, first responders--without hesitation, some of them
knowing that they weren't going to probably make it out alive,
led on by a sense of duty just to try and save someone else's
life. Passengers and crews on airplanes all took action that
day, and many people from all over America came to Ground Zero
to work to try and remove the bodies of those who they refused
to let lie beneath 1.8 million tons of toxic rubble. Some of
those brave people are even now dying because of their actions
on those days.
How, I planned to ask, can we who survived that day forsake
their courage, their dignity, their decency by letting justice
fail? How can it be that KSM, 10 years after that fateful day,
4 years after he confessed and proudly acknowledged his role,
his major role, in making it happen, proudly proclaiming that
he had the hand that killed journalist Daniel Pearl--how can we
still be sitting here with him not brought to justice?
We, the families, many not even having the opportunity for
a grief-softening help in a simple burial for something called
``justice''--yesterday we were told by the highest law
enforcement officer in the land, Attorney General Eric Holder,
that justice is finally on the way.
So why was the Attorney General's speech such a bitter
disappointment to me and so many family members? Why after the
last 2 years of anguish and uncertainty did the Attorney
General's speech feel like yet another heavy burden instead of
welcome relief?
The victims will get their justice, but let us be clear,
according to the Attorney General, not the best justice. The
best venue for prosecution was in Federal court, Mr. Holder
scolded. He said I stand by that decision today, he said
defiantly. Indeed, the Attorney General spent the entirety of
his speech telling us that he was delivering justice to these
poor families but of an inferior sort, not the powerful, well
researched and documented case which not only would have proven
the guilt of the accused, but would have allowed us to adhere
to the bedrock traditions and values of our laws.
Of course, the implication was clear. Military commissions
are none of this. Worse, the unwise and unwarranted
interference of Congress in limiting the President's ability to
bring terrorists to U.S. soil has actually created the
potential for harm to national security. How he does not say.
We are simply left to ponder the serious ramifications of
congressional trespass which is so dangerous the Obama
administration will continue to seek to reverse the
irresponsible actions of the people's representatives, lest
they attempt to deliver second-class justice to other
Guantanamo detainees.
Today, however, we are stuck with military commissions, and
here at last is the bitterest pill that Mr. Holder coldly
serves up. We have to miss this opportunity for the sort of
grand justice only the Federal courts are capable of delivering
because the families of the victims demand it.
The families who had waited 7 long years when President
Obama ground these cases to a halt were made to wait 2 more
years by the Administration's incoherent process. Let us be
clear. The families were already tired of waiting when the
Obama team arrived on the scene. Alleged concern for the plight
of the families is Mr. Holder's most contemptible conceit.
Let us be crystal clear. The families had no say, no voice,
no champions inside the Holder Justice Department. We were
ignored, tolerated, overlooked, and misled. When it was
apparent that we did not support civilian trials for the war
criminals who slaughtered our families as 200,000 troops risked
their lives to fight the same enemy on the same battlefield, we
were summarily dismissed from the process. We were not a
cooperative bunch. Here is why. The process was preordained
from day 1 and those of us who were paying attention know it.
Mr. Holder told you yesterday he approached this case with
an open mind, that his only goal was to look at the facts and
the law and choose the venue where swift and certain justice
could move and most effectively be achieved. What could be more
swift and more certain than the defendant's declaration 1 month
before Mr. Obama took office that they wish to plead guilty to
the charges and be executed? The families of the victims, some
of whom were sitting in that courtroom when he made this
proffer, were elated. At long last, we could begin the end of
our terrible agonizing journey.
President Obama prevented this from going forward. It was a
campaign promise the President made and the Attorney General,
then a private citizen campaigning for his candidate, told
supporters Mr. Obama would fulfill it as one of his first
presidential acts. Indeed, on the second day in office, the
newly elected President signed sweeping executive orders which
did away with all the work that Congress had accomplished in
promulgating a legal framework for military commissions. And it
nullified 3 years of case preparation by the Office of Military
Commissions when they were just months away from the conclusion
of the case. These campaign promises were made. They were
delivered. The signals by this Administration are clear.
The 10th anniversary of 9/11 rapidly approaches. The
national 9/11 memorial at the World Trade Center will be
opening. The Flight 93 memorial at Shanksville, Pennsylvania
will be opening. The eyes of the world will once again be
focused on Ground Zero. What is the world going to say? What
will the world think where America has not demonstrated the
political will or the moral courage to have already brought
confessed perpetrators of this act to justice? It is shameful.
It is disappointing. It hurts.
[The prepared statement of Mr. Beamer follows:]
Prepared Statement of David Beamer
__________
Mr. Sensenbrenner. Thank you, Mr. Beamer. [Applause.]
The Chair will remind members of the audience and Members
of the Committee that it is against the rules of the House of
Representatives and thus the Committee to make expressions of
either support or opposition to any statements that are made by
witnesses or by Members of the Committee and will ask that
future expressions be taken out into the hallway.
Mr. Stimson, you are recognized for 5 minutes.
TESTIMONY OF CHARLES D. STIMSON, SENIOR LEGAL FELLOW, THE
HERITAGE FOUNDATION
Mr. Stimson. Mr. Chairman, Ranking Member Scott, and
Members of the Committee, I want to thank each of you for
holding this hearing today and for inviting me to testify.
Thank you.
This hearing could not be more timely. Yesterday's
announcement vindicates this Subcommittee's work and probably
would not have happened without the real leadership exercised
by Members of the Subcommittee. But this hearing is
appropriately looking forward, not backwards.
Over the years, a strong bipartisan consensus on the use of
military commissions has emerged and has become the dominant
position in Washington. Even President Obama, once a critic of
trials by military commission, has acknowledged that they are--
and I quote--an appropriate venue for trying detainees for
violations of the laws of war. Unquote. And that they protect
our vital national security interests and that they provide
appropriate safeguards and procedural rights for those tried. I
agree with the President on those points and welcome his
Administration's announcement yesterday.
But I remain concerned that this Administration is not
fully supportive or even invested in commissions. So my message
today is simple. Now that the right decision has been made,
stand by it and provide commissions the appropriate resources.
I have three points.
First, certain cases will require the use of military
commissions rather than civilian courts.
Second, military commissions provide robust procedural
protections to defendants.
And third, the Administration and this Congress should
fully resource commissions to ensure their success.
And let me take each in order.
The first is that for practical reasons, certain cases face
hurdles to try in civil courts and will need to be brought
before military commissions. In Federal court, criminal
defendants receive the full panoply of procedural and
substantive rights guaranteed by the Constitution, but those
guarantees were never intended to extend to enemy belligerents,
and indeed, they would render effective prosecution in many
cases just impossible. U.S. soldiers on battlefields, whether
in the war on terror or a more conventional armed conflict, do
not mirandize enemy fighters, do not apply to magistrate judges
for search and arrest warrants, and do not offer captured enemy
fighters the customary opportunity to call an attorney. The
Constitution does not, of course, require that soldiers do any
of these things, nor does it require that we extend to captured
belligerents the same procedural protections that apply to
criminal defendants. Those requirements, however, would apply
in a Federal courtroom and could derail the prosecution.
Consider, for example, the right to a speedy trial, which
is guaranteed to criminal defendants by the Sixth Amendment. If
the Administration tried KSM in Federal court at this late
date, there is a substantial risk that it would not have been
able to provide a legal justification for the years of delay in
bringing him to trial. Lack of political courage in making a
forum selection is not a cognizable legal excuse. As a result,
all charges would have been dismissed. That is fine in a
regular run-of-the-mill criminal case, but in war the stakes
are much higher.
Or consider the bar on most hearsay evidence as required by
the Sixth Amendment's Confrontation Clause. In a Federal court,
the rule against hearsay could keep out reams of military
intelligence and other reliable evidence in a terrorist
prosecution, evidence that was gathered not with an eye toward
law enforcement, but for the purpose of national defense. In a
military commission, unlike in Federal court, hearsay is
admissible as long as the side offering the statement can show
that it is reliable.
Another practical consideration is incentives. The rules of
war codified in the Geneva Conventions create a set of
incentives for belligerents. Follow the rules and if you are
captured, you will be accorded the benefit of those rules. But
by trying unprivileged enemy belligerents in Federal court
instead of military commissions, we reward the violation of
those rules and give those belligerents greater protections
than a typical lawful prisoner of war would receive. That is
dangerous policy.
My second point. Military commissions provide robust
procedural protections to detainees, and I have included a
chart in my testimony, Mr. Chairman and Ranking Member Scott,
where you can look at that.
And my third point is this. Now that KSM will finally be
tried before a military commission, the Administration and
Congress must take every reasonable step to ensure that the
trial is an exemplar of justice and the rule of law. This will
take resources. Chief among them are the attorneys who will
prosecute and defend the case. We need the very best our
country has to offer. The Department of Justice should detail
its top terrorism prosecutors to these cases. Although
exceptionally talented, hard-working, and intelligent, many of
the JAG's who are currently detailed to commissions simply do
not have the requisite trial experience to handle a case of
this complexity and weight on their own. The solution is
collaboration. Federal prosecutors, once detailed as lead
prosecutors to the commissions, must work with JAG prosecutors.
Similarly for the defense, the Administration should ensure
that learned counsel, military and Federal defenders are
detailed to these cases.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Stimson follows:]
Prepared Statement of Charles D. Stimson
I would like to thank Chairman Sensenbrenner, Ranking Member Scott,
and members of the Subcommittee for inviting me to testify today on the
use of military commissions to try appropriate war crimes, including
the 9/11 conspiracy.
My name is Charles Stimson, and I am a Senior Legal Fellow at The
Heritage Foundation, where I work on legal and policy issues related to
national security, homeland security, and the criminal law. I am also a
Commander in the United States Navy JAG Corps (Reserve Component),
serving as a military trial judge. In my 18 years of service in the
Navy, I have served three tours on active duty, including time as a
prosecutor and defense attorney. I have been privileged to be a local,
state, and federal prosecutor, and an adjunct law professor at The
George Mason School of Law and the Naval Justice School. Most relevant
to today's hearing, from 2006 through 2007 I served as Deputy Assistant
Secretary of Defense for Detainee Affairs, a position created in 2004
to advise the Secretary of Defense on all matters related to Department
of Defense detainees, including those in Iraq, Afghanistan, and
Guantanamo Bay.
The views I express in this testimony are my own, and should not be
construed as representing any official position of The Heritage
Foundation, the Department of Defense, the Department of the Navy, or
the Navy Judge Advocate General's Corps.
Today, there is broad bi-partisan consensus that military
commissions provide robust procedural protections to those prosecuted,
are appropriately adapted to the needs and exigencies of the war on
terrorism, and, ultimately, are the appropriate venue for trying
terrorists who commit war crimes.
The breadth of this consensus, on a topic that had sown division
only a few years in the past, is remarkable. President Obama, for one,
has said that military commissions ``are an appropriate venue for
trying detainees for violations of the laws of war'' because ``[t]hey
allow for protection of sensitive sources and methods of intelligence
gathering . . . [and for] the safety and security of participants and
for the presentation of evidence gathered from the battlefield that
cannot always be effectively presented in Federal courts.'' \1\
---------------------------------------------------------------------------
\1\ Remarks by the President on National Security, The White House,
May 21, 2009, http://www.whitehouse.gov/the_press_Koffice/Remarks-by-
the-President-On-National-Security-5-21-09/.
---------------------------------------------------------------------------
Senator Carl Levin, Chairman of the Senate Armed Services
Committee, said at the introduction of the Military Commissions Act of
2009 before his committee that he believed commissions ``can play a
legitimate role in prosecuting violations of the law of war.'' \2\
---------------------------------------------------------------------------
\2\ Senator Carl Levin, Opening Statement at Senate Committee on
Armed Services Hearing to Receive Testimony on Legal Issues Regarding
Military Commissions and the Trial of Detainees for Violations of the
Law of War, July 7, 2009, http://www.loc.gov/rr/frd/Military_Law/pdf/
Senate-Armed-Services-July-7-2009.pdf.
---------------------------------------------------------------------------
Ranking Member John McCain echoed that sentiment. He said: ``I
believe we've made substantial progress that will strengthen the
military commissions system during appellate review, provide a careful
balance between the protection of national security and American
values, and allow the trials to move forward with greater efficiency
toward a just and fair result.'' \3\
---------------------------------------------------------------------------
\3\ Senator John McCain, Statement at Senate Committee on Armed
Services Hearing to Receive Testimony on Legal Issues Regarding
Military Commissions and the Trial of Detainees for Violations of the
Law of War, July 7, 2009, http://www.loc.gov/rr/frd/Military_Law/pdf/
Senate-Armed-Services-July-7-2009.pdf.
---------------------------------------------------------------------------
This bi-partisan consensus makes sense, especially when one
understands the robust due process rights and procedural protections
contained within the reformed military commissions. What does not make
sense is the Obama Administration's continued policy of delayed justice
and failure to refer cases to military commissions.
To move the process forward, three points must be understood. The
first is that we are at war and that military commissions provide
essential capabilities, which are unavailable in federal courts, in
support of the war effort. The second is that, under current law,
commissions provide due process protections that are unparalleled in
the history of war crimes tribunals, and they provide these safeguards
right now, not at some uncertain future date. The third is that,
putting it all together, there is no excuse for further delay in
referring 9/11 cases to trial by military commissions.
Let me address each point in turn.
First, we are at war, and there are strong practical considerations
militating in favor of the use of commissions. In the years leading up
to September 11, 2001, acts of transnational terrorism that affected
United States interests were treated, for the most part, as criminal
law matters in federal court. The United States was not in a continuing
legal state of armed conflict, and the use of federal courts was the
only litigation option for bringing terrorists to justice.
As a former federal prosecutor, I have immense respect for our
federal courts. Federal terrorism prosecutors have the requisite
experience in trying complex cases and federal courts will continue to
play a role in this war.
For example, I supported the administration when it sent Ahmed
Ghailani to federal court for his role in the 1998 embassy bombing
case. The facts of that case were unique. For instance, the sites of
the acts were treated as crime scenes from the moment the bombs went
off; law enforcement officials from Kenya, Tanzania, and the United
States preserved valuable evidence from the beginning, including
reading suspects rights warnings; all evidence was collected prior to
9/11; and the co-conspirators were tried, convicted, and sentenced to
long sentences before 9/11. Ghailani was indicted for his crimes at the
time, but was not apprehended until after 9/11. Trying Ghailani in
federal court for that pre-9/11 terrorist act was simply finishing up
the unfinished business of the 1998 embassy bombing cases.\4\
---------------------------------------------------------------------------
\4\ Charles D. Stimson, First--and Perhaps Last--Gitmo Inmate
Brought to America, June 13, 2009, http://www.heritage.org/Research/
Commentary/2009/06/First-and-perhaps-last-Gitmo-Inmate-Brought-to-
America?RenderforPrint=1.
---------------------------------------------------------------------------
But the events of 9/11 have forced our leaders, including
Presidents Bush and Obama, to recognize the need to have at their
disposal all lawful tools, including military commissions, to confront
and defeat this enemy.
Consider the litigating risks of trying Khalid Sheikh Mohammad, or
``KSM,'' in federal court, versus before a military commission. Some of
those risks are similar. For example, in both venues, KSM will likely
attempt to take advantage of the ``stage'' of the courtroom to spew out
his hatred of the West and embrace the call to global jihad. Similarly,
regardless of where KSM is tried, the trial will take years to finish,
as there will be substantial pretrial discovery, myriad motions, and
long delays.
But military commissions do not give unprivileged enemy
belligerents all of the rights guaranteed to criminal defendants in
federal court, and they shouldn't. Furthermore, as the judge in the
Salim Hamdan military commissions' trial wrote, ``. . . the Geneva
Conventions expressly contemplate tribunals for unlawful combatants
that are less protective of their rights than the forum guaranteed to
lawful combatants.'' \5\
---------------------------------------------------------------------------
\5\ Keith J. Allred, Military Commissions: The Right Venue for KSM,
The Wall
Street Journal, Apr. 19, 2010,
http://online.wsj.com/article/
SB10001424052748703444804575071880705027218.html.
---------------------------------------------------------------------------
Consider just one right, the right to a speedy trial, which is
guaranteed to criminal defendants in federal court by the Sixth
Amendment.\6\ In the federal terrorism trial of Ahmed Ghailani, the
federal district judge issued a ruling on whether the government had
violated Ghailani's speedy trial rights. In denying Ghailani's motion,
he analyzed the underlying facts and utilized the four-factors
enumerated in Barker v. Wingo. He found the government's reason for
delay ``weak,'' but nonetheless denied the motion.\7\ The ruling was
close.
---------------------------------------------------------------------------
\6\ Barker v. Wingo, 407 U.S. 514 (1972).
\7\ United States v. Ghailani, No. S10 98 Crim. 1023(LAK), 2010 WL
2756546 at *16 (S.D.N.Y. July 12, 2010).
---------------------------------------------------------------------------
Here, if the Administration were to try KSM in federal court at
this late date, there is a substantial risk that it would not be able
to provide a credible legal justification for the years of delay in
bringing him to trial. Lack of political courage in making a forum
selection is not a cognizable legal excuse. The result: all charges
would be dismissed in federal court. In a run-of-the-mill criminal
trial, this might make sense: the government has to get on with its
case or forfeit its ability to prosecute. But in war, the stakes are
much higher.
The Military Commissions Act of 2009 does not give defendants a
constitutional Sixth Amendment right to a speedy trial.
Another difference between military commissions and federal courts
concerns hearsay. In federal court, hearsay is generally
inadmissible,\8\ unless the offered statement falls into one of the
exceptions to the general prohibition. Even if the out-of-court
statement falls under an exception, otherwise relevant evidence may
still be inadmissible as it might violate a defendant's rights under
the Sixth Amendment's Confrontation Clause, and thus be
inadmissible.\9\
---------------------------------------------------------------------------
\8\ Fed. R. Evid. 801 (2011).
\9\ See Crawford v. Washington, 541 U.S. 36 (2004) et seq.
---------------------------------------------------------------------------
But in military commissions and international tribunals, hearsay is
admissible as long as the side offering the statement can demonstrate
to the judge that it is reliable, material, probative, and that direct
testimony from the witness is not available as a practical matter. Once
admitted, the finder of fact then can decide what weight, if any, to
give the statement.
This evidentiary difference is necessary and practical in the
presentation of war crimes' cases.
Keep in mind that this isn't just a benefit to the prosecution.
Both sides benefit from the use of the commissions' hearsay rules, and
the finder of fact has more information, not less, with which to render
a considered judgment.
There is also the matter of incentives. The rules of war codified
in the Geneva Conventions create a set of incentives for belligerents:
follow the rules and, if you're captured, you'll be accorded the
benefits of those rules. But by trying unprivileged enemy belligerents
in federal court--instead of military commissions--we reward the
violation of those rules and give those belligerents greater
protections than a typical lawful prisoner of war would receive. This
practice upends the carefully crafted incentive structure of the Geneva
Conventions, and is harmful.
Finally, there is an ongoing debate among legal scholars as to
whether the crimes of conspiracy and material support to terrorism are
traditional war crimes. The debate continues, and likely will unless or
until the United States Court of Military Commissions Review or higher
appellate courts rule on the issue. But that debate is irrelevant to
the topic at hand. The government has ample direct and circumstantial
evidence to prove the 9/11 case, and can rely on traditional war crimes
statutes to charge KSM and the 9/11 plotters.
Second, reformed military commissions provide robust protections to
detainees, more so than any other international war crimes tribunal
ever created. Indeed, they are specifically modeled after and adapted
from the established procedures and rules of evidence found in the
Uniform Code of Military Justice. Although neither traditional criminal
law nor the law of war provide clear answers to the multitude of
detainee issues that have arisen since 9/11, it is clear that under
Common Article 3 of the Geneva Conventions and Supreme Court precedent,
unlawful combatants are entitled to be tried by a ``regularly
constituted court that affords all the judicial guarantees . . .
recognized as indispensable by civilized peoples.''
And when one compares the procedural protections and rules
contained in the Military Commissions Act of 2009 to standard U.S.
courts-martial and other international tribunals, as I have, you see
that today's commissions offers unlawful combatants more robust due
process and protections that any international tribunal ever created.
The United States has led the world in the development of the law
for a long time. The rules and procedures embodied in the Military
Commissions Act of 2009 are fairer than the rules used at Nuremberg
after World War II, the current International Criminal Court, and the
International Criminal Courts of Yugoslavia and Rwanda. Perhaps in the
years to come, international tribunals may look to the Military
Commissions Act of 2009 as a model for enhancing their rules and
procedures.
Those protections, which I have detailed in a comparison chart
attached to my remarks, include but are not limited to:
1. The legal presumption of innocence throughout the trial;
2. Proof beyond a reasonable doubt is required to convict;
3. Protection from self-incrimination;
4. The right to be present whenever evidence is admitted;
5. The right to counsel;
6. The right to present and call witnesses;
7. The right to cross-examine government witnesses who appear
in court;
8. The right to pretrial discovery of all evidence to be
introduced at trial;
9. A prohibition on use of statements obtained through cruel,
inhuman and degrading treatment
10. The right to remain silent, without any adverse inference;
11. The right to introduce evidence through expert witnesses;
and
12. The right to introduce reliable hearsay evidence.
We should judge the fairness of these procedures by whether we
would feel comfortable if our own military personnel were subjected to
similar procedures. We should also ask whether they are consistent with
our values as Americans.
The answer to both questions is ``yes.'' And that is not just my
position, but the implicit position of the Obama Administration and
inescapable conclusion of many Members of Congress from both sides of
the aisle.
Finally, we are almost a decade from 9/11, and we still don't have
a decision on where these cases are to be tried. The victims haven't
had their day in court. That's wrong. Delay also does not benefit the
detainees, as they deserve a decision as well. At this point in time,
it is time for leaders to lead, and make a decision. We pay our leaders
to do just this. And for 10 years, no decision has been made.
The administration is to be commended for reforming and keeping
military commissions. But it is now time for the administration to
start referring cases to military commissions, including the 9/11 case.
The President's Detainee Policy Task Force concluded, ``Justice for the
many victims of the ruthless attacks of al Qaeda and its affiliates has
been too long delayed.'' The Administration has established a protocol
governing the disposition of Guantanamo cases for prosecution. Any
objective analysis of the three factors in that protocol leads to but
one conclusion: the lead actors who caused the United States to go to
war for 9/11 deserve a war crimes tribunal.
Members of Congress should call on the administration to take this
step, to stop delaying, and to bring Khalid Sheikh Mohammad to justice
in a military commission trial. Once that decision is made, it is
imperative that the Congress provide the Administration, and in
particular the Office of Military Commissions, with those resources its
needs to fully support both the defense and prosecution teams to carry
out their respective duties.
I thank you for the opportunity to testify, and I look forward to
our discussion.
ATTACHMENT
__________
Mr. Sensenbrenner. Thank you very much, Mr. Stimson.
Ms. Hessler?
TESTIMONY OF STEPHANIE HESSLER, FELLOW,
MANHATTAN INSTITUTE FOR POLICY RESEARCH
Ms. Hessler. Chairman Sensenbrenner, Ranking Member Scott,
Members of the Committee, I thank you for the opportunity to
express my views about the use of military commissions to
prosecute the September 11 plotters.
In my view, the 9/11 conspirators should be tried by
military commission, not in Federal court. I support the
President's decision announced yesterday that Khalid Sheikh
Mohammed and nine others will have a military trial, and I
commend Congress for the pivotal role it played in helping the
Administration reach this decision.
I will begin by briefly outlining the legal authority for
military commissions. Our Founders understood the difference
between keeping internal order through the criminal justice
system and protecting against external threats from our
enemies. The Constitution gives Congress the power to define
and punish offenses against the law of nations. Congress has
repeatedly exercised this power to establish military
commissions.
Indeed, the United States has used military tribunals
throughout its history, including in the War of 1812, the
Mexican-American War, the Civil War, and World War II. As the
Supreme Court confirmed in Ex parte Quirin, quote, unlawful
combatants are subject to trial and punishment by military
tribunal.
Shortly after the September 11 attacks, President Bush
established military commissions to try foreign jihadists for
war crimes. In 2006, the Supreme Court ruled in Hamdan v.
Rumsfeld that military commissions needed congressional
approval and invited Congress to enact legislation. Soon after,
Bipartisan majorities of Congress passed the Military
Commissions Act of 2006, which was amended in 2009.
Before the September 11 attacks and the subsequent
establishment of military commissions, we had to try foreign
jihadists in the criminal justice system. But as we learned on
9/11, trying alleged terrorists after an attack does little to
prevent the next one. After September 11, we changed our
approach to terrorism, shifting focus from punishment to
prevention.
For at least three reasons, our prosecuting foreign war
criminals in Federal court may undermine counterterrorism
goals. And military commissions are specifically designed to
mitigate these risks.
First and foremost, we need to protect classified
information from our enemies. Acquiring intelligence is one of
the most crucial means for penetrating and dismantling terror
networks. Obtaining classified information can be a prolonged,
painstaking, and often very dangerous job for our intelligence
agents. Such information must be vigorously safeguarded.
Criminal trials, however, risk disclosing top secret
information to our enemies. A Federal judge has discretion to
order classified materials released, and if the Government does
not comply, the judge may order the indictment dismissed. The
Government may be in a catch 22 of either disclosing classified
intelligence or risking dismissal of charges.
Congress sensibly addressed this issue in the MCA. The
Government may redact and summarize material and cannot be
compelled to disclose classified information to anyone lacking
a security clearance.
Likewise, we must protect information that is not
classified but could, nonetheless, aid our enemies in their
fight against us. Because criminal court proceedings are
required to be public under the Sixth Amendment, sensitive
information may freely flow to our enemies. For example, in the
trial of Sheikh Omar Abdel-Rahman for the 1993 World Trade
Center bombings, the prosecution made a routine disclosure to
the defense lawyer of a list of unindicted co-conspirators. We
learned later that this valuable list of key terror suspects
reached Osama bin Laden halfway around the world within 10
days.
Likewise in that case, there was extensive data about the
engineering and construction of the World Trade Center. It is
certainly possible that terrorists used this information to
design and plot the attacks that destroyed the buildings a few
years later.
Congress recognized that the transparency of criminal
trials may undermine our national security. Therefore, while
military trials are generally public, a judge is permitted to
close proceedings in order to protect national security. This
flexibility is vital to ensuring that terrorists do not turn
into a feast of counterterrorism data for terrorists at large.
Second, bringing Federal criminal actions may not only
reveal information, it may also impede intelligence gathering,
as criminal defendants must be read Miranda warnings. But when
an alien terrorist is apprehended, national security interests
demand that we acquire information to prevent a future attack
and neutralize security threats. Starting off with ``you have
the right to remain silent'' is not the way to gain
counterterrorism data. Congress recognized that reading
terrorists Miranda warnings would severely hinder intelligence
gathering and compromise counterterrorism efforts. Therefore,
in military commissions, detainee statements are admissible if
a judge determines that they are reliable, probative, and made
during lawfully conducted military operations.
Third, Federal prosecutions can place an undue burden on
military efforts.
In conclusion, it is the right decision to try the 9/11
plotters in military commissions, not in Federal court.
Criminal trials may undermine our national security by
revealing important information to our enemies, impeding
intelligence gathering, and placing undue burden on military
operations. There is no reason to gamble with America's
security.
[The prepared statement of Ms. Hessler follows:]
Prepared Statement of Stephanie Hessler
Mr. Chairman, Mr. Ranking Member, Members of the Committee: I thank
you for the opportunity to express my views about the use of military
commissions to prosecute the September 11th plotters and other
detainees held at the Guantanamo Bay Detention Camp.
In my view, the 9/11 conspirators should be tried by military
commission--not in federal court. I will focus my remarks on the risks
of federal criminal prosecutions and the ways in which military
commissions may alleviate these risks. I will also comment briefly on
the substantial due process that military commissions afford the
accused.
I. LEGAL AUTHORITY FOR MILITARY COMMISSIONS
uc I would like to begin by briefly outlining the legal authority for
military commissions. Our founders understood the difference between
keeping internal order, through the criminal justice system, and
protecting against external threats from our enemies, through military
action. Article I, Section 8, clause 10, of the Constitution gives
Congress the power to ``define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations.''
Congress has repeatedly exercised this power to establish military
commissions.
Indeed, the United States has used military tribunals throughout
its history, including in the War of 1812, the Mexican-American War,
the Civil War and World War II. As the Supreme Court confirmed in Ex
Parte Quirin, ``unlawful combatants are . . . subject to trial and
punishment by military tribunal.'' \1\
---------------------------------------------------------------------------
\1\ Ex Parte Quirin, 317 U.S. 1, 31 (1942).
---------------------------------------------------------------------------
Shortly after terrorists attacked us on September 11th, President
Bush established military commissions to try foreign jihadists for war
crimes. In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the
Uniform Code of Military Justice required certain procedural
protections for military commissions and invited Congress to enact
legislation.\2\ In reaction to Hamdan, bipartisan majorities of
Congress passed the Military Commissions Act of 2006, which was amended
in 2009 (``the MCA'').
---------------------------------------------------------------------------
\2\ 548 U.S. 557 (2006).
---------------------------------------------------------------------------
II. MILITARY COMMISSIONS ALLEVIATE THE RISKS INVOLVED WITH FEDERAL
CRIMINAL PROSECUTIONS FOR UNLAWFUL ENEMY COMBATANTS.
In the years before the September 11th attacks and the subsequent
establishment of military commissions, foreign terrorists were tried in
our criminal justice system. But as we learned on 9/11, trying alleged
terrorists after an attack does little to prevent the next one. After
September 11th, we changed our approach to terrorism--shifting focus
from punishment to prevention.
For at least three reasons, prosecuting foreign war criminals in
federal court may undermine our counterterrorism goals. Civilian trials
may (A) reveal classified and sensitive information to our enemies, (B)
hinder intelligence gathering, and (C) burden military operations
abroad. The military commissions enacted by Congress are specifically
designed to alleviate these risks while granting the accused
substantial procedural protections.
A. Protecting Information
I. CLASSIFIED INTELLIGENCE
First and foremost, we need to protect classified information from
our enemies. Acquiring intelligence is one of the most crucial means
for penetrating and dismantling terror networks and protecting our
national security. Obtaining classified communications and operational
capabilities of terrorist groups can be a prolonged, painstaking and
often very dangerous job for our intelligence agents. Such
information--including sources and methods of intelligence gathering--
must be vigorously safeguarded.
Criminal trials, however, risk disclosing top-secret information to
our enemies. In such a trial, the federal judge has discretion to order
classified materials released if it deems substitutes inadequate.\3\
And, if the government refuses to disclose classified information, the
judge may order the indictment dismissed.\4\ This can put the
government in a catch-22 of either disclosing classified intelligence
or risking dismissal of charges.
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\3\ Classified Information Procedures Act, 18 U.S.C. App.3; See
also U.S. Const. Amend. VI. (granting the accused the right ``to be
confronted with the witnesses against him.'').
\4\ Classified Information Procedures Act, 18 U.S.C. App.3.
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Congress sensibly addressed this issue in the Military Commissions
Act. In a military trial, the Government cannot be compelled to
disclose classified information to anyone who does not have the proper
security clearance.\5\ If the judge determines that access to the
information is necessary, the government may redact portions of the
information, submit a summary, or substitute a statement admitting
facts that the classified material would tend to prove.\6\ Furthermore,
such an order by a military judge may not be reconsidered.\7\
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\5\ Military Commissions Act, 10 U.S.C. 949 p-1(a) (``Classified
information shall be protected and is privileged from disclosure if
disclosure would be detrimental to the national security. Under no
circumstance may a military judge order the release of classified
information to any person not authorized to receive such
information.'').
\6\ 10 U.S.C. 949 p-4(b) (``The military judge, in assessing the
accused's discovery of or access to classified information under this
section, may authorize the United States--(A) to delete or withhold
specified items of classified information; (B) to substitute a summary
for classified information; or (C) to substitute a statement admitting
relevant facts that the classified information or material would tend
to prove.'').
\7\ 10 U.S.C 949 p-4(c) (``An order of a military judge authorizing
a request of the trial counsel to substitute, summarize, withhold, or
prevent access to classified information under this section is not
subject to a motion for reconsideration by the accused, if such order
was entered pursuant to an ex parte showing under this section.'').
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II. SENSITIVE INFORMATION
Likewise, the United States also has an interest in protecting
information that may not be classified but could nonetheless aid our
enemies in their fight against us. Because criminal court proceedings
are required to be public under the Sixth Amendment of the
Constitution, sensitive information may freely flow to our enemies.\8\
For example, in the trial of Sheikh Omar Abdel-Rahman for the 1993
World Trade Center bombings, the prosecution made a routine disclosure
to the defense lawyer of a list of unindicted co-conspirators.
According to Andrew McCarthy who prosecuted the case, this valuable
list of key terror suspects reached Osama bin Laden, halfway around the
world, within ten days.\9\
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\8\ U.S. Const. Amend. VI. (``In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.'').
\9\ Andrew C. McCarthy, Willful Blindness: A Memoir of the Jihad,
2008 at 304.
---------------------------------------------------------------------------
Likewise, in that case, there was extensive data about the
engineering and construction of the World Trade Center building.\10\ It
is certainly possible that terrorists used this information to design
and plot the attacks that destroyed the buildings a few years later.
---------------------------------------------------------------------------
\10\ Kenneth Anderson, What to Do with Bin Laden and Al Qaeda
Terrorists? A Qualified Defense of Military Commissions and United
States Policy on Detainees at Guantanamo Bay Naval Base, 25 Harv. J.L.
& Pub. Policy 591 2002 at 609.
---------------------------------------------------------------------------
Congress recognized that the transparency of criminal trials may
undermine the goal of protecting our national security. Therefore, the
Military Commissions Act provides that while military trials are
generally public, the judge is permitted to close proceedings in order
to protect national security interests, safeguarding intelligence and
law enforcement sources, methods and activities.\11\ This flexibility
is vital to ensuring that trials do not turn into a feast of national
security information for terrorists at-large.
---------------------------------------------------------------------------
\11\ 10 U.S.C. Section 949(d)(c)(2)(a).
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B. Miranda Warnings Impede Intelligence Gathering
Bringing federal criminal actions may not only reveal sensitive
information, it may also impede intelligence gathering. The Fifth
Amendment of the Constitution protects criminal defendants from self-
incrimination.\12\ The Supreme Court has held that statements of the
accused are not permitted in criminal trials unless the defendant was
advised of his rights.\13\ FBI and law enforcement generally read
Miranda warnings immediately upon arrest so as to preserve evidence for
prosecution.
---------------------------------------------------------------------------
\12\ U.S. Const. Amend. V. (No person ``shall be compelled in any
criminal case to be a witness against himself.'').
\13\ Miranda v. Arizona, 384 U.S. 436 (1966).
---------------------------------------------------------------------------
But the U.S. Constitution does not give foreign wartime enemies the
privilege to be tried in federal court and thus shielded from self-
incrimination. When an alien terrorist is apprehended, our national
security interests demand that we acquire as much information as
possible to prevent a future attack and neutralize security threats.
Any intelligence officer will tell you that starting off with, ``you
have the right to remain silent . . .'' is not the way to gain
counterterrorism data.
Take, for example, the case of Umar Farouk Abdulmutallab, otherwise
known as the Christmas Day bomber. The self-professed al Qaeda-trained
operative attempted to explode a flight from Amsterdam to Detroit the
Christmas before last. Despite the fact that Abdulmutallab is a
Nigerian national, with no right under any statute or the Constitution
to be tried as a U.S. civilian, the Obama administration immediately
decided to grant him the rights of a U.S. citizen. In a first round of
questioning, he disclosed his al Qaeda training in Yemen and mentioned
additional terrorist plots. But after only 50 minutes of questioning,
he was given Miranda warnings and told he had the right to remain
silent and the right to obtain a lawyer--compliments of the taxpayers
he had just tried to explode. Needless to say, he quickly became
reticent after receiving these warnings.
Congress recognized that reading terrorists Miranda warnings would
severely hinder intelligence gathering and compromise counterterrorism
efforts. Therefore, in military commissions, detainees' statements are
admissible if a judge determines that they are reliable, probative and
made during lawfully conducted military operations.\14\
---------------------------------------------------------------------------
\14\ 10 U.S.C. 948r(c) (``A statement of the accused may be
admitted in evidence in a military commission under this chapter only
if the military judge finds--(1) that the totality of the circumstances
renders the statement reliable and possessing sufficient probative
value; and (2) that--(A) the statement was made incident to lawful
conduct during military operations at the point of capture or during
closely related active combat engagement, and the interests of justice
would best be served by admission of the statement into evidence; or
(B) the statement was voluntarily given.'').
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C. Federal Prosecutions May Burden Military Operations
Federal prosecutions may also burden military operations abroad.
The facts in a transnational terrorism case often include second-hand
statements, known as hearsay, which are generally prohibited in federal
court.\15\ For example, key witnesses in such cases are often the
soldiers or CIA agents who captured the defendant overseas. But these
officers may still be engaged in combat abroad, and interrupting their
counterterrorism mission to testify in federal court could place an
undue burden on military efforts.
---------------------------------------------------------------------------
\15\ Federal Rules of Evidence 802; U.S. Const. Amend. VI.
---------------------------------------------------------------------------
Given the unique challenge of prosecuting war crimes while
hostilities are ongoing, the military commission rules allow the
government greater flexibility to introduce second-hand statements. The
Military Commissions Act allows hearsay to be admitted if the judge
determines that the statement is reliable and probative and the witness
is not available.\16\ In determining whether to admit second-hand
statements, the judge is specifically directed to take into account
``the adverse impacts on military or intelligence operations that would
likely result from the production of the witness.'' \17\ Just as
important, the hearsay rule is reciprocal.\18\ So the accused may admit
material to prove his defense that would otherwise be excluded under
the Federal Rules of Evidence.
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\16\ 10 U.S.C. 949a(b)(3)(D).
\17\ 10 U.S.C. 949a(b)(3)(D)(ii)(III).
\18\ 10 U.S.C. 949a(b)(3)(D).
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III. UNLAWFUL ENEMY COMBATANTS ARE GRANTED SUBSTANTIAL DUE PROCESS
Finally, while the MCA mitigates many of the risks of criminal
prosecution, it also affords the accused substantial procedural
protections similar to those provided in federal court. In a military
commission, (1) the accused is presumed innocent;\19\ (2) the
Government must prove guilt beyond a reasonable doubt;\20\ (3) the
accused has a right to counsel;\21\ (4) he is protected from double
jeopardy;\22\ (5) the government is obligated to disclose exculpatory
evidence;\23\ and (6) the accused has the right to appeal to a Military
Review Court,\24\ then the United States Court of Appeals for the DC
Circuit and finally petition the US Supreme Court.\25\
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\19\ 10 U.S.C 949(l)(c)(1) (``the accused must be presumed to be
innocent.'').
\20\ 10 U.S.C 949(l)(c)(1) (``the accused must be presumed to be
innocent until the accused's guilt is established by legal and
competent evidence beyond a reasonable doubt.'').
\21\ 10 U.S.C 948(k) (Military defense counsel for a military
commission under this chapter shall be detailed as soon as
practicable.).
\22\ 10 U.S.C. 949(h) (No person may, without the person's consent,
be tried by a military commission under this chapter a second time for
the same offense.''); 10 U.S.C 950d(b) (``In no case may a proceeding
in revision (i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty.'').
\23\ 10 U.S.C. 949(j)(b) (``(1) As soon as practicable, trial
counsel in a military commission under this chapter shall disclose to
the defense the existence of any evidence that reasonably tends to (A)
negate the guilt of the accused of an offense charged; or (B) reduce
the degree of guilt of the accused with respect to an offense charged.
(2) The trial counsel shall, as soon as practicable, disclose to the
defense the existence of evidence that reasonably tends to impeach the
credibility of a witness whom the government intends to call at trial.
(3) The trial counsel shall, as soon as practicable upon a finding of
guilt, disclose to the defense the existence of evidence that is not
subject to paragraph (1) or paragraph (2) but that reasonably may be
viewed as mitigation evidence at sentencing. (4) The disclosure
obligations under this subsection encompass evidence that is known or
reasonably should be known to any government officials who participated
in the investigation and prosecution of the case against the
defendant.'').
\24\ 10 U.S.C. 950 (f).
\25\ 10 U.S.C. 950 (g).
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V. CONCLUSION
In conclusion, the 9/11 plotters and other inmates held at
Guantanamo should be tried in military commissions--not criminal court.
Criminal trials may undermine our national security by revealing
important information to our enemies, impeding intelligence gathering
and placing an undue burden on military operations. There is no reason
to gamble with America's security.
__________
Mr. Sensenbrenner. Thank you, Ms. Hessler.
Professor Saltzburg?
TESTIMONY OF STEPHEN A. SALTZBURG, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY
Mr. Saltzburg. Thank you, Mr. Chairman and Ranking Member
Scott.
I think there is agreement throughout the United States
that it is outrageous that 10 years later KSM and his alleged
colleagues have not been tried. Everybody wants them tried. If
in fact they are guilty as they claim, everyone wants them
punished, and it should be done as soon as possible.
The question is what is the right forum. The Attorney
General has now said it is going to be military commissions.
His hands are tied.
The sad fact is, because of the process from which we began
in 2001 when military commissions were first proposed,
throughout the next decade, the constant refrain was we need
military commissions because it is going to be easier to
convict them. And that is the perception throughout much of the
world, that military commissions are the forum of choice
because it is easier to convict. I agree with that. It is going
to be easier to convict them in a military commission. There is
no doubt about it. The rules make it easier, and that is
because the Government writes the rules.
But what we ought to remember is this. The last word on
those rules is not going to come from the executive. It is not
going to come from this Congress. It is going to come from
Federal judges, the same Federal judges who sit in Article III
courts and have great pride in their ability to try terrorists
and their commitment to the rule of law and their dedication to
the same principles that everybody in this room shares. Now,
those Federal judges down the road are going to ask whether the
procedures were fair. Mr. Stimson says, well, maybe the speedy
trial right would be violated if these defendants were tried in
Federal court. Well, if that is so, maybe the Federal courts
will say speedy trial applies even in commissions. We don't
know. That is a big problem with commissions.
Let me remind you of something. It is not in my testimony,
but it occurred to me. It is a point we shouldn't forget.
December 21, 1988 I was a Deputy Assistant Attorney General
in the Reagan administration. It was the last month. I got a
call from the command center. The command center said Pan Am
103 has just disappeared from the radar. What do you want to
do? Everyone above me in the Department of Justice was at the
White House at the Christmas party. And I was there with the
decision to make, and after consulting with colleagues, I said
you treat this as a terrorist incident until you know
otherwise. This is 1988. If anybody says it is an over-
reaction, you just tell them blame because there is not going
to be a headline that says Pan Am 103 goes down and Justice
goes home.
And I have looked at terrorism issues from that day till
now, and I want to remind you of something. The two Libyans who
finally we managed to extricate from Libya for trial, according
to special procedures that were adopted--one was acquitted; one
was convicted. I assume that the Subcommittee understands his
conviction is not yet final. This is in 2011. He was convicted.
He was imprisoned. He was given compassionate release. His
appeal is still pending.
One of the problems with creating a new system is no one
knows how it will turn out in the end, and before we go down
that road, before we run the risk that 5 years from now we will
have a court tell us the procedures were inadequate and
therefore whatever guilty verdicts might be returned in a
military commission in Guantanamo will be overturned by a
Federal court, before we go that route, we ought to ask
ourselves is that what we want to do. Do we want to send a
message that there is something wrong with the judicial system
that served us so well for more than 2 centuries, that showed
us it can handle every single kind of case that comes its way?
I just urge you to consider, when you think about where the
end game is, that it may be all well and good to say let's try
him now, let's try him in commissions, but if 5 years from now,
it turns out all we did was for naught, people are going to say
it was the wrong choice and it was a bad choice and we had a
better choice available.
Thank you.
[The prepared statement of Mr. Saltzburg follows:]
Prepared Statement of Stephen A. Saltzburg
Chairman Sensenbrenner, Ranking Member Scott and Members of the
Subcommittee, I thank you for inviting me to testify before you on the
subject of using military commissions to try the 9/11 conspirators.
REDEFINING THE QUESTION
I begin by noting that the real question is where to try those who
are alleged to be conspirators. At the moment the five individuals who
may be charged as principal participants in the horrific attacks on
America that occurred on September 11, 2001 have not been prosecuted in
any tribunal. They remain presumed innocent irrespective of the
assumptions that have been made by many as to their responsibility for
the hijacking of airplanes and the killing of innocent people.
TRY CASES IN ARTICLE III COURTS
My position on where those charged with the worst act of mass
murder on American soil should be tried is clear: IN AN ARTICLE III
COURT presided over by a judge appointed by the President and confirmed
by the Senate and before a jury of American citizens chosen from a
cross-section of the community as juries are chosen in the United
States every working day.
THE REASONS FOR USING ARTICLE III COURTS
Why do I think it is important for the trial to be in an Article
III court? There are a number of reasons, many of which have been well
articulated by thoughtful people over the years since the 9/11 attacks:
1. Civilian courts are capable of handling complex terrorism and
espionage cases. Their track record is strong. Over 400 terrorism-
related suspects have been successfully tried in federal courts since
9/11. Only a handful of cases have been handled by military
commissions, and the military commission process has been hampered by
starts and stops, changes in the rules, and uncertainty about exactly
how cases would proceed.
2. The life-tenure provided federal judges by the founders of this
Nation is one of our fundamental guarantees that justice in federal
courts will be impartial and that those who preside over criminal cases
will not be beholden to the Executive. The independence of the federal
judiciary is one of the factors that inspires confidence in the
decisions rendered by federal courts. There is no comparable
independence of military judges who preside over commissions.
3. A civilian jury is one of the greatest democratic institutions
that we have. It is chosen from throughout the community. It is
inclusive. Men and women serve together. People of all races and
religions are called to serve together. Individuals with varying
education, expertise and experience serve as a unit to assess the
strength and weakness of evidence. The jurors are screened for bias,
and challenges for cause and peremptory challenges offer protections
against jurors who are partial. The judgment of such jurors--as, for
example, those who assessed a fair punishment for Zacarias Moussaoui--
benefits from the many different perspectives that jurors bring to
their deliberations. Military commission members are not drawn from a
similar cross-section of the community, are chosen by the Convening
Authority who also brings the charges against an accused, and will
never be viewed as being as fair and impartial as a civilian panel.
4. There is enormous skepticism about the fairness of military
commissions that is largely explained by the now discredited procedures
originally proposed to govern them. Had the procedures now in place as
a result of the Military Commission Act of 2009 (``MCA 2009'') and
improvements made by the Department of Defense been in place from the
outset, some of the concerns about commissions would have been
eliminated. But, the process has been slow and once doubts about the
fairness of a tribunal arise, it is difficult if not impossible to
eradicate them.
5. Many public figures have proclaimed that we ought to use
military commissions because they provide a greater certainty of
conviction. Such comments fuel the perception that the rules governing
the commissions are adopted with an eye to increasing the probability
of conviction and a severe sentence rather than increasing the
likelihood of a fair and just proceeding. Our goal should be to try
individuals charged with these acts of mass murder in a manner that
convinces our people and those around the world who look to us for
leadership in preserving and protecting the rule of law that we are
guaranteeing a fair trial for all charged with crimes, even the worst
crimes. Our citizens and those of other nations are most likely to be
convinced by trials in federal courts.
6. The individuals charged with the 9/11 murders ought not be
treated as warriors. We are in a fight against international terrorism.
There is no mistake about it. But, terrorists who commit murder in the
United States against innocent civilians are criminals who should be
prosecuted as such. Those alleged to be responsible for the 9/11
attacks should be tried in civilian courts just as Timothy McVeigh was
tried for the Oklahoma City bombing. He was proved to have been a
murderer, sentenced to death, and executed. The federal court that
tried him used the same procedures that govern criminal trials
throughout the United States. Those procedures produced a fair trial
and a just verdict. Those same procedures can and should be employed in
trying those accused of the 9/11 attacks.
7. There is a place for military commissions in the prosecution of
terrorists. They are most defensible when employed to prosecute
individuals who attack American military targets abroad, where
witnesses and evidence may be uniquely available. But, they are not the
forum for trying the most serious charges of intentional murder
committed on American soil that may ever be brought. That forum is a
federal district court.
8. Some of the arguments made in favor of military commissions
sound as though we do not trust civilian courts. The case of Ahmed
Khalfan Ghailani is cited as an example of why we should avoid civilian
courts. Although Ghailani was acquitted on all charges but one, his
conviction on a conspiracy charge relating to the 1998 East Africa
Embassy bombings led to a life sentence without the possibility of
parole. The fact that a civilian jury found the evidence insufficient
on the other charges ought to inspire confidence that the trial was
fair, the government was put to its proof as required by the
Constitution, and there is no reason to question the integrity of the
guilty verdict of conspiracy.
Those that argue that the evidence deemed inadmissible against
Ghailani would have been admissible in a military commission may be
wrong. Judge Kaplan, the trial judge, stated in a footnote in his
ruling that it was far from clear that the witness's testimony would be
admissible if Ghailani were being tried in a military commission
because the MCA 2009 likely would require exclusion, but even if it did
not the Constitution might do so even in a military commission
proceeding.
9. Although the rules of evidence that currently govern military
commissions are more favorable to the prosecution than either the
Federal Rules of Evidence applicable in federal courts or the Military
Rules of Evidence applicable in courts-martial, there is uncertainty as
to whether the commission's evidence rules will ultimately be held to
satisfy the Constitution's guarantee of due process. We can be certain
that the Federal Rules of Evidence will pass constitutional muster and
that trials under those rules satisfy due process. The uncertainty as
to whether the commission rules will ultimately be upheld is genuine
and reason to avoid prosecuting the 9/11 cases in any forum other than
an Article III court. The Supreme Court's decision in Hamdan v.
Rumsfeld, 548 U.S. 557 (2006), stands as a caution not to assume that
federal courts that review commission proceedings will find that the
procedure and evidence rules are constitutionally adequate.
10. A trial in civilian court that results in a conviction could be
appealed to a federal circuit court. If the conviction is affirmed, the
defendant could seek review in the United States Supreme Court. The
appellate process is familiar and can be efficiently employed. Military
commissions will employ an appellate process that is less familiar and
more cumbersome. First, there is review by the Convening Authority.
Second, there is review by the Court of Military Commission Review, a
unique tribunal that was created specifically to review commission
proceedings whose membership keeps changing. Third, there is review by
the United States Court of Appeals for the District of Columbia
Circuit. Finally, there is potential review by the United States
Supreme Court. There is every reason to believe that the military
commission appellate process will be more prolonged than its civilian
counterpart.
RESPONSES TO THE ARGUMENTS AGAINST ARTICLE III COURTS
I am not persuaded that there is any insurmountable problem with
trying those accused of the 9/11 murders in civilian court. So let me
address some of the so-called problems.
1. Security for the trial will be prohibitively expensive and
disruptive.
This could be true if the trial were held in lower Manhattan and
the New York Police Department concluded that prudence required a
massive security presence and a substantial cordoned-off area. Although
some have questioned the need for such security and have pointed to the
fact that Ghailani was transferred to New York City from Guantanamo and
was tried without incident, I would not second-guess the NYPD. There is
no requirement that the trial be held in New York, however. It could be
held in the Eastern District of Virginia, where the Alexandria federal
courthouse is already relatively secure.
The case could also be initiated in the Southern District of New
York, and either side could move for a change of venue. The case could
be tried, for example, in New Jersey where a federal court sits next to
a detention facility and defendants may be moved from the facility to
the court through an underground tunnel. Such a forum ought to cut
security costs and ameliorate threat concerns considerably.
Moreover, if there were reason to believe that a specific threat of
retaliation were directed at the location of a trial, an Article III
trial could be convened at a military installation in the United States
where security would presumably be adequate to thwart any attempt at
retaliation.
There is surely good reason to question the assumption that if the
trial is held in a military commission in Guantanamo, there will be no
attempted retaliation by sympathizers of the defendants. After all,
retaliation can be directed at any American facility; it need not be
directed at the courthouse where a defendant is tried. The World Trade
Center buildings were attacked as symbols. Any terrorist who sought to
retaliate against the United States for trying those accused of the 9/
11 attacks could choose another symbol far removed from the trial
itself. So, no one should be choosing a military commission as a means
of avoiding potential retaliation.
2. Civilian trials put judges and jurors at risk.
It is true that a federal judge who presides over a trial involving
any individual associated with a criminal enterprise could be the
target of retaliation. The danger is ever present when judges sentence
a member of a group that is known to engage in violence. Yet, our
federal judges have not hesitated to preside over these trials. Indeed,
our judges fully understand that the rule of law would be weakened if
they did not meet their responsibilities even at some risk. It is true
security may be required for a judge after some cases, but we have
provided it in the past and should be prepared to provide it when
necessary to enable our judges to do their jobs.
What is true of physical locations is also true of people. One
terrorist sympathizer could retaliate against the trial of another
terrorist by retaliating against any government officer. There are no
rules governing retaliation. A terrorist could retaliate against a
military commission proceeding by targeting a judge, a member of
Congress, or a civilian who had nothing to do with the proceeding. The
fact is that there is no way to guarantee that there will be no
retaliation as a result of any trial.
As for jurors, federal courts have considerable experience
impaneling anonymous juries and their use has been upheld by appellate
courts. As a result, jurors have been willing to serve and have been
safe from retaliation. There is no reason to believe that anonymous
juries could not be employed in the 9/11 cases or that their use would
put jurors at risk.
3. The prosecution has a better chance of convicting in military
commissions than in civilian court.
I agree that this is true, but do not see it as a reason to choose
commissions. Quite the contrary, I see it as one of the reasons that
there is so much concern and distrust about commissions. Evidence that
would never be admitted in a federal trial or a court-martial can be
admitted in a commission proceeding. Why? The answer is that the
Executive makes the rules. That does not equate with fair and just
proceedings in the eyes of many. It also supports the notion that when
federal courts finally do get to review commission proceedings they may
find the rules favoring the government to deny due process to a
defendant, as noted above.
Moreover, the rules that govern military commissions exclude some
of the evidence would have been admissible under earlier sets of rules.
Opponents of using the traditional criminal justice system claim that
involuntary/coerced self-incriminating statements obtained from
defendants would be inadmissible in our traditional criminal justice
system, but would be admissible in the military commissions. However,
Congress limited the admissibility of such statements in the MCA 2009
providing that: ``No statement obtained by the use of torture or by
cruel, inhuman, or degrading treatment (as defined by section 1003 of
the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not
under color of law, shall be admissible in a military commission under
this chapter, except against a person accused of torture or such
treatment as evidence that the statement was made.''
It is true that exceptions exist: ``A statement of the accused may
be admitted in evidence in a military commission under this chapter
only if the military judge finds--``(1) that the totality of the
circumstances renders the statement reliable and possessing sufficient
probative value; and ``(2) that--``(A) the statement was made incident
to lawful conduct during military operations at the point of capture or
during closely related active combat engagement, and the interests of
justice would best be served by admission of the statement into
evidence; or ``(B) the statement was voluntarily given.'' Exactly what
fits under (2)(A) is unclear. But (2)(B) seems to indicate that a
coerced confession that would be inadmissible in federal court is
equally inadmissible in commission proceedings.
4. Civilian trials can turn into a circus and provide a forum for
defendants to insult and demean the memory of the victims of 9/11.
Civilian trials are among the most formal, controlled proceedings
that governments experience because they are controlled by federal
judges who have power to assure that litigants, lawyers and observers
behave or are removed from the courtroom if they do not behave.
It is true that a defendant who takes the witness stand or who
makes a statement during sentencing has the opportunity to say things
that are insulting, demeaning, or even threatening. But, this is
equally true in civilian trials and in military commissions. More
importantly, the defendant does not get the last word. After Zacarias
Moussaoui spoke to the court at sentencing, Judge Brinkema had the last
word and informed him that he would have 23 hours a day in solitary
confinement to contemplate the crimes he committed. She spoke the last
words, and they represented the response of a nation. She was not the
only federal judge to speak such words. Judge Coughenour of the Western
District of Washington has noted the power of words when federal judges
let convicted terrorists know that they are nothing more than mere
criminals.
5. There are speedy trial concerns with proceeding in federal court
after so much delay.
There are two responses to this concern. Judge Kaplan addressed the
speedy trial issue in the Ghailani trial: ``Although the delay of this
proceeding was long and entirely the product of decisions for which the
executive branch of our government is responsible, the decisions that
caused the delay were not made for the purpose of gaining any advantage
over Ghailani in the prosecution of this indictment. Two years of the
delay served compelling interests of national security. None of the
five year delay of this prosecution subjected Ghailani to a single day
of incarceration that he would not otherwise have suffered. He would
have been detained for that entire period as an enemy combatant
regardless of the pendency of this indictment. None of that delay
prejudiced any interests protected by the Speedy Trial Clause in any
significant degree. In these specific circumstances, Ghailani's right
to a speedy trial has not been infringed.'' The same analysis ought to
apply to 9/11 defendants.
But, if there is a speedy trial problem, there is no assurance that
it would not be just as much of a problem in a commission proceeding.
As I have noted, no one is sure what aspects of constitutional law
ultimately will be held binding in commission proceedings. If it is
unfair to try a defendant in a civilian court because of undue delay,
it may be equally unfair to try that defendant in a military
commission.
6. Classified information can be better handled in military
commissions.
I disagree with this argument on the basis of substantial personal
experience with classified information in federal criminal cases.
During the Iran-Contra prosecutions by Independent Counsel Lawrence
Walsh, I handled the classified information issues for the Department
of Justice in the prosecution of Lt. Col. Oliver North. As a result, I
became extremely familiar with the Classified Information Procedures
Act. Dealing with classified information in a federal trial under the
Act poses the same problems as dealing with classified privileged
information in a court-martial under Military Rule of Evidence 505.
Federal courts are as capable as military commissions of preparing
``substitutes'' for classified information that protect a defendant's
right to confront the evidence against him and to offer relevant
evidence in support of a defense. The process contemplated by Mil.
Comm. R. Evid. 505 is similar to that which would occur in a federal
court. Federal courts have demonstrated that they can protect
confidential and classified information while moving federal criminal
trials to a successful conclusion.
CONCLUSION
For the reasons stated above, I strongly believe that justice is
best served by trying those accused of the 9/11 attacks in an Article
III court.
__________
Mr. Sensenbrenner. Thank you, Professor Saltzburg.
The Chair will now recognize Members under the 5-minute
rule to ask questions, alternating by side in the approximate
order in which they appeared. And the Chair will defer his
questions to the end and starts out by recognizing the
gentleman from California, Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman. First of
all, I apologize for leading the applause after Mr. Beamer's
testimony, but it was in my experience here one of the finest
pieces of testimony that I have heard and apropos of everything
that this hearing is about.
Mr. Saltzburg, you said that the Federal court system,
presumably the Article III courts have been able to handle
every case that has come its way. So you disagree with Judge
Mukasey, former Attorney General who presided over the case
involving the first attempt to take down the towers, when he
said in retrospect it was not the right thing to do because it
did reveal information that was helpful to our enemies.
Mr. Saltzburg. I do disagree with him. I think it was the
right thing to do. I would point out to you that some of the
information that was revealed as a result of that trial was
revealed because the prosecutor who prosecuted the case chose
not to seek a protective order. Had he sought it--and he said
to this day in retrospect he would have. And the list of co-
conspirators, for example, that was referred to by Ms. Hessler
is a list that was never protected. No one sought to----
Mr. Lungren. So you do disagree with Judge Mukasey who
presided over that trial and has been involved in the
prosecution of terrorist cases.
Secondly, is there something wrong with someone pleading
guilty?
Mr. Saltzburg. Nothing wrong with someone pleading guilty.
Mr. Lungren. If we had accepted the guilty plea of Khalid
Sheikh Mohammed, wouldn't that have brought justice more
quickly than we are talking about now, which is one of your
major complaints?
Mr. Saltzburg. Not if you think the death penalty is an
appropriate penalty.
Mr. Lungren. Oh. You can't plead guilty and then receive
the death penalty?
Mr. Saltzburg. Not in a commission. You can in Federal
court.
Mr. Lungren. I see. So one of your problems is you want him
to get the death penalty and therefore we shouldn't have
accepted that?
Mr. Saltzburg. I don't like the death penalty, but in the
case of these five alleged co-conspirators, the death penalty
is on the table, and if ever there was a case in which it would
be appropriate, this is it.
Mr. Lungren. Well, do you support the current Attorney
General's complaint about the military commissions where his
statement suggests that the quality of justice obtained there
will not apparently be the same quality as obtained in an
Article III court?
Mr. Saltzburg. I don't know that I would phrase it the same
way. I think he meant to say--I think the intent was to say
that the procedures that have been tried, true, and tested in
an Article III court are different, and they haven't been
tried, true, and tested and may not withstand scrutiny.
Mr. Lungren. You don't have any question about the legal
authority for military commissions themselves, do you?
Mr. Saltzburg. I do not.
Mr. Lungren. So that in fact military commissions,
appropriately established, are constitutional just as Article
III courts are constitutional since both of them receive their
power from the Constitution. Correct?
Mr. Saltzburg. Appropriately constituted, no doubt that
they are constitutional.
Mr. Lungren. Mr. Stimson, you have indicated that Article
III courts are not appropriate under certain circumstances when
we are dealing with enemy combatants. I use the old term
``unlawful enemy combatants.'' It seems to me that seems to be
appropriate, but I know we have some new nomenclature. But I
think you know what I am talking about.
One of the points you made is that it seems rather strange
that we would grant greater protections to those who do not
follow what are understood to be the conventions of warfare
than we do those who do. Isn't that sort of a missing argument
that we have in this debate many, many different times, that
part of the reason that you establish certain procedures is
based on the fact that you assume that people are going to
follow the known civil or at least the conventions of warfare?
Mr. Stimson. They are, sir.
Mr. Lungren. Isn't that a perverse incentive that we are
establishing if we somehow say they should get Article III
courts as a matter of course?
Mr. Stimson. It is important as a matter of policy to be
consistent and send the message that the Geneva Conventions
were put in place for in the first place, and that is follow
the rules, carry your arms openly, be a privileged belligerent,
and get accorded the status, the legal status, of prisoner of
war, which means you can't be tried. You have combatant
immunity. But if you fall outside of those rules, then you lose
immunity and you can be tried for war crimes. My point is
simply that by giving them a trial in an Article III court, we
are upending the very purpose of the Geneva Conventions in the
first place.
And if I could, Mr. Chairman, address the death penalty
question at least now or at some other point----
Mr. Sensenbrenner. Maybe some other point.
Mr. Stimson. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
Professor Saltzburg, can you relate the appellate process
if you wanted to appeal a conviction in criminal court or
appeal a conviction in the military commission, what process
they would go through?
Mr. Saltzburg. Sure. A person tried in an Article III
district court, if convicted, would have a right of appeal to
one of the courts of appeal throughout the country, the 11
numbered courts and the D.C. Circuit, and then a right to
petition for review in the United States Supreme Court.
A person tried in a commission would first get review by
the convening authority. Second, there is a special tribunal
that is set up to--an ad hoc tribunal that is set up to review
convictions. After that, there is review in the United States
Court of Appeals for the District of Columbia. And if a
conviction were to be upheld after that, there is potential
review in the United States Supreme Court.
Mr. Scott. Which seems quicker?
Mr. Saltzburg. Well, I think there is no doubt that a
Federal district court trial with one appeal as a right is less
cumbersome than the appellate rights provided in the military
commission process.
Mr. Scott. And what about predictability?
Mr. Saltzburg. Well, you have heard me on this. We know
what to expect from Article III courts. We don't know how
Article III courts will respond to military commission
procedures.
Mr. Scott. Is there a limit on the charges that can be
brought in a military commission as opposed to charges that can
be brought in Federal court?
Mr. Saltzburg. Yes. Commissions are there to try war
crimes, and Article III courts can hear virtually any criminal
charge that falls under Federal law.
Mr. Scott. And if you have a terrorist attack, is it
necessarily a war crime that may not be found to be a war crime
subject to a military commission?
Mr. Saltzburg. Whether or not every attack--``attack'' is
the wrong word. Whether every crime committed by someone who is
not an American against Americans is a terrorist act I think
the answer is no. I mean, we have heard the rhetoric here is
that we are at war with al Qaeda, we are at war with KSM. I
think the truth of the matter is that the greatest victory KSM
will have is to be treated as a warrior. The last thing that he
and his co-conspirators want is to be treated as a common
criminal.
Mr. Scott. Is the question of whether it is a war crime or
a regular crime an appealable issue?
Mr. Saltzburg. It will be. I think this tribunal knows that
four Justices on the Supreme Court have cast doubt on whether
conspiracy is a crime that can be prosecuted in a military
commission.
Mr. Scott. In terms of those who will be conducting the
crime, can you say a word about the experience that those who
will be conducting a military commission have in conducting
these trials, particularly as it relates to admissibility of
evidence and handling classified material?
Mr. Saltzburg. Let me say that I think that the military
lawyers who have been assigned to be prosecutors--I have worked
with some of them. I think they are excellent lawyers, as are
the defense lawyers. They are doing their best.
I think Mr. Stimson is correct when he says they don't have
the same experience as lawyers in the Department of Justice,
particularly when it comes to handling sensitive information
and using statutes like the Classified Information Procedures
Act. There will be a learning curve and it would be improved, I
would say, if DOD lawyers were detailed to work with them.
Mr. Scott. In terms of classified materials, can the same
mistakes be made in a military commission, letting too much
evidence out in the public that there have been complaints
about in Federal court?
Mr. Saltzburg. Absolutely. The basic procedures under the
Classified Information Procedures Act in civilian court, under
Military Rule of Evidence 505 in a court martial, and Military
Commission Rule 505 in commissions--the rules are basically the
same. The judge is supposed to take classified information and
try to fashion substitutes for nonclassified information. Can
there be a mistake? Absolutely.
Mr. Scott. A lot has been said about the possibility of
retaliation if you have a Federal court. What is the importance
of fairness and the indicia of fairness that would occur in a
Federal court that may increase or decrease the possibility of
retaliation of those involved in the trial?
Mr. Saltzburg. The concern about a trial in New York was
that al Qaeda sympathizers might retaliate because there was a
trial. And the truth of the matter is anybody who sympathizes
with KSM and the other defendants can retaliate anywhere they
want against the United States, anywhere they would try to.
There is no rule that says you only can retaliate against the
city that is trying your case.
Mr. Scott. Mr. Chairman, before you drop the gavel, I just
want to point out that complaints have been made about Ahmed
Ghailani who was tried in Federal court. He was given a life
sentence at the end of the trial without the possibility of
parole.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from South Carolina, Mr. Gowdy?
Mr. Gowdy. Thank you, Mr. Chairman.
Professor Saltzburg, when Osama bin Laden is captured, do
you advocate his trial in civilian court or a military
commission?
Mr. Saltzburg. In a civilian court where he has already
been indicted.
Mr. Gowdy. You advocate that Osama bin Laden be given a
Federal public defender with discovery rights and tried in
civilian court.
Mr. Saltzburg. Yes, I do.
Mr. Gowdy. I don't understand, Professor, your argument
about this likelihood of conviction, that because military
tribunals are more likely to convict than U.S. district courts,
that we should not pick military tribunals because you will
agree with me that the chances of a conviction are higher in
Federal court than in State court. Right?
Mr. Saltzburg. No, I don't agree with that.
Mr. Gowdy. Of course, they are. There is more than a 90
percent conviction rate in U.S. district court. More than 90
percent.
Mr. Saltzburg. The guilty plea rate is 96----
Mr. Gowdy. I am talking about the conviction rate at trial.
You disagree that you are more likely to be convicted at trial
in U.S. district court than in State court.
Mr. Saltzburg. I think the conviction rates are pretty
comparable. It depends on what State, but are pretty
comparable, Federal and State.
Mr. Gowdy. Virginia.
Mr. Saltzburg. The Virginia conviction rate is as high in
State court as it in Federal court.
Mr. Gowdy. Professor, given his confession which, as I have
read it, it speaks to every element of the offense, what
defense would you advocate on behalf of KSM and how would his
defenses be adversely impacted by a military trial as opposed
to a civilian trial?
Mr. Saltzburg. I expect KSM to plead guilty. I expect that
if he were tried in the Federal court, he would plead guilty
because he has tried to plead guilty, and he has tried to plead
guilty in a forum that permits the death penalty to be----
Mr. Gowdy. So he won't lose any significant rights if he is
tried by a military tribunal and not tried in civilian court.
Mr. Saltzburg. Well, the one thing that would be different
is in an Article III court, we would have the Federal judge
using the same care to make sure that that guilty plea was not
influenced in any way by improper conduct----
Mr. Gowdy. That is a 15-minute colloquy between the
defendant and the judge. Right? That can be done in military
court. Right?
Mr. Saltzburg. The colloquy will probably be slightly
longer given the detention and the circumstances of the
detention to assure that this is a knowing, voluntary, and
intelligent plea.
Mr. Gowdy. Military tribunals--you don't get 12 jurors.
Right? Like you do in civilian court.
Mr. Saltzburg. Military tribunal--you have a right, if the
death penalty is being sought, to 12 jurors unless 12----
Mr. Gowdy. Well, let's speak about the death penalty
because you said in your testimony that one of the benefits of
a civilian jury is that it is inclusive, period. But it is not
inclusive because if you don't believe in the death penalty,
you can't serve on a Federal death penalty jury. Correct?
Mr. Saltzburg. If you are absolutely opposed to the death--
--
Mr. Gowdy. Not absolutely. If you just can't give it. If
you cannot give the death penalty, you can't serve. Right?
Mr. Saltzburg. If you absolutely can't give it. If you have
reservations, you can serve.
Mr. Gowdy. Well, reservations that substantially impair
your ability to give it.
Mr. Saltzburg. Fair enough.
Mr. Gowdy. I mean, that is the Wainwright language. Right?
Mr. Saltzburg. Right.
Mr. Gowdy. So there is no constitutional requirement of 12
jurors. Right?
Mr. Saltzburg. Excuse me?
Mr. Gowdy. There is no constitutional requirement of 12
jurors.
Mr. Saltzburg. No. The Supreme Court has held that a
minimum of 6 is required.
Mr. Gowdy. There is no constitutional right of unanimity in
jurors, is there?
Mr. Saltzburg. Yes, actually there is in Federal court.
Mr. Gowdy. Where?
Mr. Saltzburg. The Supreme Court, Johnson v. Apodaca.
Mr. Gowdy. I said constitutional. I didn't say Supreme
Court. I said in the Constitution does it say that we require
unanimity of jurors?
Mr. Saltzburg. The Constitution doesn't say anything about
unanimity. It doesn't say anything about numbers of jurors
either.
Mr. Gowdy. Right. It doesn't have to be 12. It doesn't have
to be unanimous.
Mr. Saltzburg. If you are asking me what it says in the
Constitution----
Mr. Gowdy. That is what I am asking.
Mr. Saltzburg. The Constitution, as I think I just said,
says nothing about unanimity or the number of jurors.
Mr. Gowdy. Are there better remedies in U.S. district court
than in military tribunals for technical Miranda violations?
Mr. Saltzburg. Are there better remedies in Federal
district court?
Mr. Gowdy. Right. I mean, you have the exclusionary rule in
U.S. district court. Right?
Mr. Saltzburg. Yes, you do.
Mr. Gowdy. Which means it doesn't come in.
Mr. Saltzburg. Correct.
Mr. Gowdy. Is that also true in military tribunals?
Mr. Saltzburg. No. Miranda will not have the same
applicability in military tribunals.
Mr. Gowdy. All right.
You also testified--or your writing--our citizens and those
of other nations are more likely to be convinced by trials in
Federal courts. Our citizens and those of other nations.
How many terrorists have been tried in civilian court in
the United States?
Mr. Saltzburg. More than 400.
Mr. Gowdy. And you think those other nations are convinced?
Are you satisfied that the other nations are now overwhelmed
with our sense of fairness and they respect us at such a high
degree that nothing bad is going to happen to us if we try
these people in military tribunals?
Mr. Saltzburg. What I am convinced about is that the United
States' system of justice is generally regarded as one of the
fairest in the world, and that is largely because of the image
of Federal courts.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Sensenbrenner.
Mr. Saltzburg, Professor Saltzburg, is it true that the
military commission established under the Bush administration
was flawed and needed improvement with the 2009 Military
Commissions Act?
Mr. Saltzburg. I believe so.
Mr. Conyers. Do you happen to recall in what respects it
was deficient?
Mr. Saltzburg. Well, the Military Commissions Act of 2009
tightened the rules of evidence, made it clearer as to whether
statements that were obtained through inhumane, cruel treatment
could be admitted, under what circumstances a statement that
was obtained shortly after somebody was detained on the
battlefield could be admitted, and made clear that voluntary
confessions could be admitted.
Mr. Conyers. And you have already mentioned the fact we
don't know what the Federal courts are going to do with
military commissions even after they are used and the appeals
that will come forward afterwards.
Mr. Saltzburg. That's true. Under the Military Commissions
Act of 2009, we have a combination. We have military
commissions which will--initially convictions will be reviewed
by this special tribunal, and then the conviction, if affirmed,
will end up being reviewed by the District of Columbia Court of
Appeals and maybe by the Supreme Court. And they will have the
opportunity to consider constitutional challenges to any of the
procedures that were used in the commissions.
Mr. Conyers. Attorney Stimson, are you in agreement with
that?
Mr. Stimson. There is no doubt, Mr. Conyers, that there
will be challenges to any convictions that occur under the
military commissions. That is correct.
Mr. Conyers. And do you too feel that the Military
Commissions Act of 2009 corrected certain flaws that were in
existence before then?
Mr. Stimson. I think the reforms were helpful and
necessary, sir.
Mr. Conyers. You are probably aware of the fact that under
the Bush administration, there were six cases completed by way
of plea bargains. I am sorry. Six cases and three were
completed by plea bargains. Military commissions.
Mr. Stimson. There have been six, Mr. Conyers. Two of the
pleas actually occurred during the Obama administration. Mr.
Cotter, who was a Canadian, and Al Qosi--actually I think three
because Noor Uthman just pled too. That is correct. But the
only actual trial, Mr. Conyers, was Salim Hamdan who was Osama
bin Laden's driver and arms trafficker, and that was an actual
trial in front of members to conclusion.
Mr. Conyers. And he has been released.
Mr. Stimson. Yes. He was repatriated back to his home
country, sir.
Mr. Conyers. Well, in view of that skimpy record of
military commission activities, why do you think that there is
such a great support for military commissions?
Mr. Stimson. I think two reasons, sir. One, Mr. Conyers, is
that in wartime, war criminals have traditionally and always
should have war crimes tribunals.
Secondly, the goal should not be swiftness. Justice isn't
swift. It should be fairness. And military officers who serve
as members and the convening authority who is a uniformed
military officer, actually retired JAG, understand better than
civilians the context of war and what fairness is. And so if we
judge the outcome based on the length of sentence, I think we
are looking at it the wrong way. It is whether it is fair, and
uniformed officers will render fair decisions.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Texas, Mr. Poe?
Mr. Poe. Thank you, Mr. Chairman.
I have a question for each of you. It is the same question.
Is the United States at war? Mr. Saltzburg, is the United
States at war?
Mr. Saltzburg. We are certainly at war in Afghanistan. We
are certainly at war in Iraq. And we certainly have military
forces being deployed in Libya.
Mr. Poe. Ms. Hessler?
Mr. Saltzburg. But if you are----
Mr. Poe. Excuse me. I reclaim my time.
Ms. Hessler?
Ms. Hessler. Yes, we are at war.
Mr. Poe. Mr. Stimson?
Mr. Stimson. Yes, Mr. Poe.
Mr. Poe. And Mr. Beamer?
Mr. Beamer. Yes.
Mr. Poe. Since the Military Commissions Act of 2009, I have
a concern that if--traditionally the Supreme Court says that if
we give constitutional rights to a group, then we give it to
the entire group, not just selected portions of that group.
Therefore, if we try some jihadist terrorists under the
Commissions Act in Federal court and try others in military
tribunals under the commission, is there a constitutional due
process problem with trying some over here and some over here?
Mr. Stimson?
Mr. Stimson. I am not sure the answer is yes. I think that
is where you would like me to go.
Mr. Poe. No. I just wonder what you think.
Mr. Stimson. I am not sure the answer is yes. In fact, I
think the answer is probably no. The executive has the ultimate
decision in terms of the forum selection, and I don't think it
would present an equal protection claim.
Mr. Poe. Ms. Hessler, what do you think?
Ms. Hessler. I am not sure if it would present an equal
protection claim, but I would say that it is certainly
counterproductive in that it looks a lot like forum shopping
and we shouldn't really be dividing the detainees into two
separate groups and, depending on what evidence we have,
choosing a forum. That certainly looks quite unprincipled and
against American principles.
Mr. Poe. So you would say let's pick a horse and ride it
and try them all in one place or the other.
Ms. Hessler. I would say that since military commissions
are fair--the President has said they are fair--this body
enacted it by a bipartisan majority--I would say all enemy
combatants should be tried there alike and they should all be
treated equally.
Mr. Poe. Mr. Beamer, I want to follow up on some comments
that you made. We have talked a lot today about the accused
defendants, terrorists. I think the same system that has been
created to try terrorists should also protect the rights of
victims of crime, such as your son and the others that were
murdered on 9/11. Do you think that, just from your position,
the importance of looking out and protecting the rights of
victims, while we are certainly protecting the rights of these
accused, would be better suited in a military tribunal or
before a Federal court?
Mr. Beamer. There is a long history of us using military
commissions that we have heard.
The arguments about classified information, information
gathering--the first time I heard the Attorney General discuss
his position as the right way forward to have the trials in New
York was I attended the Senate Judiciary Committee hearing back
in November of 2009. And just the idea of enemy combatants
being given rights, Miranda rights, lawyer up on the
battlefield, not being able to collect intelligence--that is
wrongheaded, completely wrongheaded.
And so many times during that testimony on that day, I
heard the Attorney General answer to some difficult questions
``I don't know.'' That gave me no feeling of confidence that he
knew about the proper way forward.
I am very concerned about victims rights. I am certainly
concerned that the enemy combatants receive a fair trial, but I
am not at all interested in conferring upon these people the
rights of the American citizenry. Not at all.
Mr. Poe. And one last question. Mr. Stimson, you talked
about fairness. You know ``fair'' means different things to
different people. Some people say fair is where you take your
chickens or something, like that. But I want to ask you does
our sense of fairness in the justice system also include the
right to a speedy resolution. If we wait 10 years in any
criminal case, whether it is in a military court or a Federal
court, doesn't that seem to be unfair to all concerned?
Mr. Stimson. It absolutely does, Mr. Poe, and not only does
the defendant have a speedy trial right, but the victims--the
victims rights movement is sort of late in coming--deserve
justice, and that means moving things along.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Puerto Rico, Mr. Pierluisi?
Mr. Pierluisi. Thank you, Mr. Chairman.
I thank all the witnesses for appearing today, and I have
to say that I am particularly pleased to see Professor
Saltzburg. I am a graduate of George Washington University Law
School. So welcome.
I am troubled and I hear some inconsistent messages here.
First thing, I have to relate to what you have been going
through, Mr. Beamer. These are the most horrendous and
atrocious crimes we could be talking about, and for you to be
still waiting for justice, as you said, that really moves me. I
know it hurts. You feel frustrated and probably angered by it,
and I relate to it.
Having said this, it is kind of inconsistent I say because
then I hear Professor Saltzburg say that the problem he sees
with this military commission is that it is going to take
forever. It is going to take a lot longer than dealing in
Federal courts. And that is troubling. It makes no sense.
Now, I don't want to leave this in generalities. So the
first thing I am going to ask Professor Saltzburg is what
troubles you the most in terms of the procedures that these
military commissions will be following. And I am looking at the
District of Columbia Circuit Court of Appeals eventually
reviewing these procedures, as you kind of said. So what
troubles you the most when you compare Article III courts'
procedures with these military commissions procedures?
Mr. Saltzburg. I think there are two things, and I actually
think that Mr. Stimson may have mentioned them accurately. The
unknowns here are whether or not a Federal court will say there
is the same kind of right of confrontation in a military
commission, at least one that is in Guantanamo, as there is in
an Article III court. It is very clear that evidence that would
never be admissible in an Article III court because it is
testimonial hearsay and hasn't been cross examined would be
admissible in a military commission, provided a judge makes
certain findings about reliability, and whether that will be
upheld is something that we don't know.
The other question--I think it is related--is whether or
not the looser standard for the admissibility of confessions,
whether or not that will be deemed valid.
I think those are two of the main differences.
There are other similarities that I think--I want to be
clear. The Military Commissions Act of 2009, in my judgment,
really did improve the commission process. There is no doubt
about it, and I don't mean to say that I know the answer to the
question of what a Federal court will do. I just know there are
big questions there.
Mr. Pierluisi. Another thing that troubles me is when you
all pretty much say that we are at war, and some of you I seem
to understand or read you as saying there is a war against
terrorism going on. And I suspect, I would assume, it is not
going to end anytime soon. Now, who is going to be tried in
these military commissions? Anybody alleged to be a terrorist?
Is that what we are talking about, that anybody who is
alleged--and I am addressing Mr. Stimson now. I want to hear
from you on this. Are you saying then that we have like two
separate sets of systems of justice here? One for pretty much
everybody and then one for anybody who is suspected to be a
terrorist. Is that what we are doing here?
Mr. Stimson. Sir, as a legal matter, this Congress has
defined, through the Military Commissions Act of 2009, those
who are eligible for military commissions. It is a small subset
of terrorists at large. They tend to almost all be in
Guantanamo. At least that is the way this Administration and
the previous have looked at it. And as Professor Saltzburg
alluded, the reforms in 2009 that this Congress passed give the
military judge the solemn duty to determine as a matter of law
whether the person is an unprivileged enemy belligerent. And so
it is several steps in the process. But, no, it is not a broad
set of people.
Mr. Pierluisi. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from Florida, Ms. Adams?
Ms. Adams. Thank you, Mr. Chairman.
Mr. Saltzburg, in your testimony you stated there is a
place for military commissions in the prosecution of
terrorists. They are most defensible when employed to prosecute
individuals who attack American military targets abroad where
witnesses and evidence may be uniquely available, but they are
not the forum for trying the most serious charges of
intentional murder committed on American soil that may ever be
brought. The forum is a Federal court in your decision. In your
statement, you say it is a Federal district court.
But using this, doesn't this mean that a terrorist can
select his eventual prosecution venue should he or she be
caught by choice of the target and where that target is
attacked?
Mr. Saltzburg. I believe that the choice is always made by
our executive.
Ms. Adams. But given your words, you said ``abroad.'' Did
you not?
Mr. Saltzburg. Yes.
Ms. Adams. Okay. So that would mean if they attacked here,
such as what happened on 9/11, that that would be different in
your eyes. Yes or no? I have got a short time and I want to get
through my questions.
Mr. Saltzburg. I believe yes, that there is a difference.
Ms. Adams. And you believe that Article III courts provide
greater protections for the accused?
Mr. Saltzburg. I do.
Ms. Adams. Does this not reward terrorists for striking
civilians in our homeland under your first premise?
Mr. Saltzburg. I don't believe that giving people fair
trials is a reward to anybody.
Ms. Adams. But they could select their venue by their
target selection. Correct? By your own words.
Mr. Saltzburg. Yes. If I were given the choice in making a
recommendation to the Attorney General, I would choose
commissions sometimes and Article III courts on other
occasions.
Ms. Adams. And you said something about the death penalty
and if you were to do it in the Article III courts, it would be
faster and less drawn out. Can you tell me what the average
time someone is on death row, whether it is State, Federal
courts awaiting their appeal process? What is the average time
that they sit there waiting throughout all their appeals?
Mr. Saltzburg. The average time in State court is many,
many years.
Ms. Adams. Federal court?
Mr. Saltzburg. Well, it depends on the cases. The Timothy
McVeigh case, for example, was a situation in which he was
tried in Federal court for mass murder. He was convicted in a
Federal court and he was executed in a relatively short period
of time.
Ms. Adams. Why was he executed? Didn't he waive some of his
appeal processes?
Mr. Saltzburg. He did.
Ms. Adams. So it was his decision to waive those processes,
but if he had not, he probably still would be with us today,
wouldn't he?
Mr. Saltzburg. Well, I can't answer that. I don't know.
Ms. Adams. Now, you mentioned the tribunal process, the
military commission, and then you mentioned the Libyan
terrorists. And I am curious because when we did our check, it
looked like Britain and the U.S.--Britain got this Libyan
terrorist, and then he was tried in a Scottish military
courtroom and the Netherlands. And you are equating that to
what is going on in our military commissions. Correct?
Mr. Saltzburg. I didn't equate it.
Ms. Adams. Well, you said that the length of the appeal and
it is still ongoing today. Didn't you say it was the length of
the appeal and it was still going on today and had something to
do with the commission?
Mr. Saltzburg. The appellate process has not ended in that
case yet.
Ms. Adams. Correct. And so, therefore, it equates because
it was a military commission even though it wasn't within our
court system or a military commission.
Mr. Saltzburg. The point I was making was simple. It was
when you adopt new procedures that you haven't used and they
are not tested----
Ms. Adams. But that was in another country, was it not?
Mr. Saltzburg. Involving several other countries.
Ms. Adams. There you go. That is what I wanted to know.
Mr. Stimson, have you seen the court facility in Guantanamo
Bay?
Mr. Stimson. I have not only seen it, Ms. Adams, I headed
the working group that put it together.
Ms. Adams. I just came back from there and it is a very
uniquely designed, well designed in my eyes, courtroom, and I
think it is one that will serve our country well and give the
defendants, the detainees, a very fair trial.
I have a short period of time. I am going to stop my
questions. I may submit some more.
But, Mr. Beamer, I for one am sorry for your loss, and I
for one want to see you and the other families and other
victims' families have the ability to have some sort of
closure. It will never be closure. I understand that having
lost someone myself. But you do deserve that type of closure,
and we as the American people need to make sure they are
brought to trial.
Thank you.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Illinois, Mr. Quigley.
Mr. Quigley. Thank you, Mr. Chairman.
Again, Mr. Beamer, my regards as well. I don't think anyone
can argue that the delay is inexcusable. This is over,
obviously, several Administrations.
But let me say this to the whole panel as someone who has
done 200 trials as well. I do think at least someone needs to
talk about Miranda in terms of its effectiveness in getting
information. I can't necessarily put my finger on it, but Mr.
Saltzburg, perhaps you could start by helping me here.
If someone who is charged with something is mirandized, I
think there is a lot of evidence that this moves them toward a
more cooperative entity, a person, to work with. The Christmas
Day bomber--and I will pronounce many of these names wrong--
Allah Hussein Kirkto, John Walker Lindh, Mohammed Junaid Babar,
David Headley, Eddis--I am not going to pronounce his name
right. The alleged associate taken into custody in--he waived
his Miranda rights and provided detailed information to the FBI
about terrorist-related activities about himself and others in
the U.S. and Pakistan. There are literally dozens here who were
mirandized and were later extraordinarily cooperative. The
justice system is an extraordinary source of information, and I
would like to think that some of this has to do with people
feeling that they are going to be treated at least with some
quantum measure of fairness and their ability to cooperate and
provide information to--it seems to be theme here--prevent
future acts.
So I would like, Mr. Saltzburg, if you could respond, and
then go back to the panel.
Mr. Saltzburg. Let me be very quick so others can respond.
Three points in response.
Number one, no one believes that when a soldier captures
someone on the battlefield, they should mirandize them.
Mr. Quigley. Right.
Mr. Saltzburg. There is no rule like that.
Number two, the FBI in October of 2010 adopted a policy
which is when you arrest someone and there is a national
security issue on the table, that you may delay Miranda
warnings in order to protect national security and then worry
about the evidence you might need in a criminal case.
And number three, the FBI is really good at using Miranda
as a tool to get people to cooperate, to get confessions. All
you got to do is look at some of the nonclassified information
that has been released about people who the FBI has persuaded
to cooperate and provide enormous amounts of information. They
are very good at it.
Mr. Quigley. And, Ms. Hessler, I understand your point
about intuitively it sort of seems that if you tell somebody
they have a right to remain silent, but it does seem to be with
good prosecutors at the local level, Federal level, and levels
dealing with terrorists--it seems to have been a pretty darned
effective tool to get people to cooperate to help prevent--to
seek out other terrorists and to help prevent other future
acts.
Ms. Hessler. Well, I believe that there are a certain
percent that do waive their rights. I believe it is 30 percent
who choose to exercise their rights. So it is certainly taking
a risk.
Mr. Quigley. But also others who were mirandized have
cooperated and given us valuable information.
Ms. Hessler. And I would just say to give the example of
the Christmas Day bomber, he was interrogated for 50 minutes
and was quite forthcoming and, in fact, admitted that he was an
al Qaeda terrorist and even discussed other plots. And then he
was given his Miranda warnings and decided to exercise them.
Mr. Quigley. Mr. Stimson?
Mr. Stimson. Thank you for your question, Mr. Quigley.
As you know, Miranda is now constitutionally based, and so
there is a more fundamental starting point and that is should
we confer unprivileged enemy belligerents with constitutional
rights or not. In a Miranda setting, as you know, the person
has the right to simply stop talking, and I think the broader
point here is that they can stop talking.
Mr. Quigley. But let's just put the issues that anyone
thinks what is fair, whether Miranda is constitutionally--
doesn't it seem to be an effective tool? In the end, what you
really want--forget that person--is you want other information.
Ms. Hessler talked about preventing future acts. It seems to be
a pretty effective tool that prosecutors use to get more
information. It helps get that person to talk to you.
Mr. Stimson. It is a tool that is required when moving
toward Federal or State prosecution.
Mr. Quigley. But don't you agree that in many cases it has
helped us get information that helps us in the war against
terrorism?
Mr. Stimson. No. I think the----
Mr. Quigley. Never. No examples.
Mr. Stimson. The waiver of Miranda and the subsequent
discussion has been helpful. It is the information itself, not
the Miranda.
Mr. Quigley. Despite the fact----
Mr. Sensenbrenner. The gentleman's timehas expired.
The gentleman from Texas, Mr. Gohmert, is recognized for 5
minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you to the witnesses for being here and giving us
your insights.
And, Mr. Beamer, you should know that your son is an
inspiration to so many of us and particularly me every day
because of the courage he showed and his willingness to protect
American lives.
Mr. Beamer. Thank you.
Mr. Gohmert. And it inspires me sometimes in dealing with
my own party. But I appreciate so much what you have
contributed to the world through your son Todd. So thank you
for that.
To kind of accentuate some of the things that some of the
witnesses have said, here is a blow-up from the New York Times,
``5 Charged in the 9/11 Attacks.'' They seek to plead guilty
from Guantanamo Bay, Cuba. And I have been down there in that
courtroom. It was well designed. Thank you very much, Mr.
Stimson and those that worked with you. But they indicated they
wanted to plead guilty. And if you read the 6-page pleading the
Khalid Sheikh Mohammed did himself that has been declassified
so we could read it, you see pretty well exactly what he
thought.
And in that same article in the New York Times, they point
out that--routine proceedings Monday Judge Henley said he
received a written statement from the five men dated November 4
saying they plan to stop filing legal motions and to announce
our confessions to plea in full. The thing is that was in 2008,
and so for about 2\1/2\ years, we have delayed justice as a
result of the President and Attorney General promising show
trials. They backed off of that.
And, Mr. Saltzburg, it is true that most places you can't
get the death penalty if you decide to plea guilty and the
court accepts the plea. And the prosecution can have something
to say about whether that plea is accepted or not. And even if
a plea of guilty is not accepted and a plea of not guilty is
entered on behalf of the defendant or respondent or detainee,
you can still enter into evidence the confession of someone
there.
And we have the transcript, and I would like to offer a
copy for the record, Mr. Chairman.
Mr. Sensenbrenner. Without objection.
[The information referred to follows:]
__________
Mr. Gohmert. And this is ISN 10024 where Khalid Sheikh
Mohammed is questioned by the president of the court, and he
goes through his warnings to make sure that he is voluntarily
entering the statement and he has a personal representative
read it. And I would commend it to anyone who is not familiar
with the process.
But this is like what we do in a military UCMJ court. Of
course, under Article I, Section 8, the Congress has power to
constitute tribunals inferior to the Supreme Court. They also
have the power to discipline the military.
And so the mistake of the Bush administration was trying to
do a military commission or tribunal without Congress. The
court set him straight and we got a good bill.
And I do agree, perhaps tongue in cheek, that it was a
great improvement in 2009 because that is when we changed the
words ``enemy combatant'' and substituted therefore the words
``unprivileged alien enemy belligerent.'' I am still concerned
about using a harsh term. ``Enemy'' is still in there.
But nonetheless, some of the things Khalid Sheikh Mohammed
made very clear that he agreed to was he said I admit and
affirm without duress I was a responsible participant,
principal planner, trainer, financier via the military council
treasury. I was responsible for the 1993 World Trade Center
operation, responsible for the 9/11 operation from A to Z. I
decapitated with my blessed right hand the head of American Jew
Daniel Pearl. I was responsible for the shoe bomber operation
to down two American planes. It went on about trying to bring
down the library tower, Sears Tower, Plaza Bank, Empire State
Building, all the things he goes on to admit freely.
But what gets me is, having served in the military, in the
U.S. Army, for 4 years, to hear people come in and say that
there are people who are out there to destroy us, they have
declared war on us, and they deserve better, some kind of more
lavish proceedings than our own military is offensive to me as
someone who served in the military. And I don't think that
anybody who has declared war on us deserves a more lavish show
trial than our military.
And I see my time has expired.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Georgia, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Saltzburg, it is a fact, isn't it, that the accused in
a military commission can choose to plead guilty. The guilty
plea must be accepted, and in so doing, the accused avoids a
death penalty.
Mr. Saltzburg. There is a glitch and uncertainty in the
statute. The statute seems to permit a joint statement, a
stipulation between the defense and the prosecution that says
the defendant did whatever he is charged with, but it is
unclear whether or not a defendant whose guilty plea is
accepted actually can be sentenced to death under the statute.
Mr. Johnson. And it is also true that this case against the
9/11 plotters will rely heavily on charges of conspiracy and
material support, and those are not traditionally recognized
war crimes. Is that true?
Mr. Saltzburg. It is true, and the answer, when I was asked
what issues might end up coming before an Article III court,
they are whether or not those crimes can be tried in a
commission, and secondly, with respect to material support,
whether there is an ex post facto problem.
Mr. Johnson. Well, that is exactly what I was getting to,
sir. And so what we have is a situation where KSM was captured
back in 2003. It hasn't been 10 years. It has been 6. Captured
back in 2003.
And Mr. Stimson, I believe you did a blog last night. You
were active on the blog sponsored by The Heritage Foundation,
and you stated, quote, the Administration deserves credit for
making this decision however late in coming. Correct?
Mr. Stimson. Yes, sir, I did write that.
Mr. Johnson. And you will recall that when KSM was arrested
back in 2003, that he was transferred to a secret location in
Eastern Europe and then to Guantanamo where he landed in around
2006. Is that true? So from 2003 to 2006, he was in a secret
location. Correct? Under U.S. custody.
Mr. Stimson. He was----
Mr. Johnson. Yes or no?
Mr. Stimson. I don't know where he was, sir.
Mr. Johnson. So you don't know where he was during that
time.
Mr. Stimson. No. I know he was at Guantanamo in September
2006.
Mr. Johnson. Now, you do know that KSM was waterboarded 183
times.
Mr. Stimson. I have read that in the newspapers, sir.
Mr. Johnson. Now, you also agree that the military
commission system was deeply flawed, the one that was produced
by the Bush administration, as the Supreme Court pointed out.
Correct? Deeply flawed.
Mr. Stimson. I don't think I have ever used those words.
The Supreme Court found that----
Mr. Johnson. Okay. well, let's go with ``flawed'' then. It
was flawed. It had to be thrown out and redone. Is that
correct?
Mr. Stimson. That is what the Supreme Court said.
Mr. Johnson. So now we are going to take a man who has been
waterboarded 183 times, charged with some offenses that have
not been recognized as battlefield-type charges, and we are
going to use a military commission for the first time to try
this high-value detainee. And you don't think there is much
risk involved?
Mr. Stimson. There is no such thing as a risk-free
prosecution----
Mr. Johnson. Okay. Well, do you think it is better for the
Federal prosecutors, the Justice Department to make that
decision than it would be for a group of politicians, many of
whom have no criminal law experience whatsoever to make the
decision?
Mr. Stimson. Professional prosecutors, including Justice
Department lawyers, will make the ultimate decision on the
charges to be brought against KSM, including----
Mr. Johnson. But you think that it is okay for this group
to decide that we want to try this man in----
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Stimson, speaking of professional politicians making
decisions, in November of 2009, in an interview with NBC News,
President Obama told a TV audience that critics of the decision
to try KSM in civilian court will not find it, quote, offensive
at all when he is convicted and when the death penalty is
applied to him. As a former Federal prosecutor and as a
military judge, do you see any ramifications for the trial of
KSM in both military and civilian court caused by the President
of the United States predicting the outcome of the case?
Mr. Stimson. Of course, I am speaking in my personal
capacity, Mr. Goodlatte. But those words are unfortunate and
could have legal ramifications in either military commissions
or Federal court.
Mr. Goodlatte. And would this compromise our ability in any
way of obtaining the death penalty?
Mr. Stimson. Anything is possible. I am certain that people
involved in the voir dire process of prospective jurors will
make inquiry into that.
Mr. Goodlatte. And is this a problem that would be
difficult for a professor of constitutional law, as President
Obama once was, to have anticipated?
Mr. Stimson. Well, again, we all say things we regret, and
I am sure the President would like to take that comment back.
Mr. Goodlatte. Congresswoman Adams had a dialogue with Mr.
Saltzburg, and I would like you to comment on that. Professor
Saltzburg writes in his testimony that only a handful of cases
have been handled by military commissions, and the military
commission process has been hampered by starts and stops,
changes in the rules, and uncertainty about exactly how cases
would proceed. Those are Professor Saltzburg's words in his
testimony.
What is the main cause of those starts and stops and
changes in the rules that the professor cites? It is directed
to you, Mr. Stimson.
Mr. Stimson. Well, there have been aggressive and, in my
opinion, appropriate legal challenges to military commissions,
and those challenges have taken a great deal of time.
Mr. Goodlatte. Let me ask Mr. Beamer. Were you or the other
victims' families contacted by the Administration in
anticipation of yesterday's announcement?
Mr. Beamer. Negative.
Mr. Goodlatte. And how about any of the attorneys on behalf
of the conspirators? Have they contacted you?
Mr. Beamer. No.
Mr. Goodlatte. Interviewed you in preparation for a
defense?
Mr. Beamer. No.
Mr. Goodlatte. And, Ms. Hessler, can you tell us, as a
constitutional scholar, what problems you think will manifest
themselves in proceeding in Article III courts for some
terrorists and in military commissions for others? Are we
approaching a bifurcated system of rights?
Ms. Hessler. It certainly seems that way. Eric Holder's
statement yesterday made clear that he was very, very reluctant
to be transferring this case back to a military commission, and
he expressed a commitment to continue Article III courts and he
outright criticized Congress for its role in that.
Mr. Goodlatte. And based on what you have seen from the
Administration when it comes to dealing with terrorists, does
there appear to be a well thought out system based on
constitutional principles or is it a rudderless approach?
Ms. Hessler. Well, I would say there certainly has been a
certain bit of incoherence from the beginning, and even with
yesterday's announcement, there does not seem to be a coherent
policy in place.
Mr. Goodlatte. And has the President, who was a
constitutional law professor at one point, ever made any
statements about the effectiveness of military commissions?
Ms. Hessler. He said that the military commissions are fair
and he said that they can be a vital tool to protecting
national security information.
Mr. Goodlatte. Mr. Stimson, I saw you nodding your head. Do
you have anything to add to that?
Mr. Stimson. Well, I would direct your attention, Mr.
Goodlatte, to his May 21st, 2009 speech at the National
Archives, and he commended the use of military commissions for
appropriate cases.
Mr. Goodlatte. And let me ask you about the soundness of
that. According to news reports, KSM and his four co-
conspirators will be tried together. Does the Military
Commissions Act address trials involving multiple defendants?
Mr. Stimson. It does, sir.
Mr. Goodlatte. In what way?
Mr. Stimson. It is allowed.
Mr. Goodlatte. So you think this is a workable mechanism.
Mr. Stimson. It is a workable mechanism, just as it would
be in Federal court.
Mr. Goodlatte. Thank you very much.
Thank you, Mr. Chairman.
Mr. Sensenbrenner. The Chair will recognize himself to
conclude the hearing.
You are back. The Chair recognizes the gentlewoman from
California, Ms. Chu.
Ms. Chu. Professor Saltzburg, a number of people today have
discussed the fact that nearly 10 years have passed since the
attack on 9/11. While I agree that the delay in bringing these
co-conspirators to justice is unacceptable, I think it is worth
understanding what the delay is about. So, Professor Saltzburg,
can you help us understand why this has taken so long?
Mr. Saltzburg. You know, there is a lot of blame that could
go around. There has been uncertainty about whether or not to
proceed in commissions or in Article III courts, as I think Mr.
Stimson said. There were challenges to the commission process
which, as he put it, were legitimate challenges, ultimately
going all the way to the Supreme Court, and when the Supreme
Court said that the commissions as constituted earlier on were
inadequate and the legislation was required, Congress responded
in 2006. There was further criticism of the military commission
process. Congress responded again. And President Obama, when he
took office, said he wanted to take a look at which forum made
most sense, and so he stopped things for a while.
It has been a process of debate within this branch of
Government, within the executive branch, and among the American
people of uncertainty, I think, about how to proceed, and when
we thought we knew how to proceed, we had challenges to tended
to gum up the works.
Ms. Chu. Let me ask another question pertaining to the
Federal courts. Opponents of trying the conspirators of 9/11 in
Federal criminal courts have argued that Federal courts can't
protect classified information and that the defendants will be
able to use the trials as a platform for their views. So,
Professor Saltzburg, can you respond to those accusations about
the Federal courts?
Mr. Saltzburg. Federal courts have shown they are perfectly
capable of protecting classified information. I have personal
experience. During Iran-Contra when Lieutenant Colonel North
was being prosecuted, I represented the Department of Justice
that was responsible for dealing with all classified
information, and there has never been a case in which more
classified information was in dispute than that case. Federal
courts can do it.
As for the second part of the question, which was--can you
remind----
Ms. Chu. Using the trials as a platform for their views.
Mr. Saltzburg. Whatever the forum, military commission or
Federal court, the defendant is going to have a chance to
address the court, and I suspect that these defendants will say
things that will make our blood boil, that will make us angry,
that will remind us why we hate them so much. And then a
Federal judge or a military commission judge will tell them
what Judge Brinkema told Moussaoui, which is in his case you
will have 23 hours a day to think about the horrible crimes you
committed and, depending on the penalty that is imposed, a
Federal judge will have the last word and it is powerful word.
And that Federal judge will either be a commission judge or an
Article III judge. But the last word will come from a judge.
Ms. Chu. And how does empowering military commissions to
try detainees undermine the established authority and expertise
of the Federal courts? Do you think that it does or what is
your opinion on that, Professor Saltzburg?
Mr. Saltzburg. I don't think it undermines the authority of
Federal courts. The notion, though, that Federal courts can't
do this or that because they can't handle classified
information or they are unable to deal with unruly defendants
just ignores the success that they have had in handling more
than 400 terrorist cases. It has not been a problem for Federal
courts, and they ought not to be--their ability to do it ought
not to be denigrated.
Ms. Chu. Thank you.
I yield back.
Mr. Sensenbrenner. The Chair now recognizes himself for 5
minutes to close the hearing.
Probably the most famous military commission trials were
the ones that were held following the end of the Second World
War at Nuremberg and in Tokyo. And, Professor Saltzburg, do you
think that the people who were tried in those tribunals should
have been tried in an Article III court?
Mr. Saltzburg. I do not.
Mr. Sensenbrenner. And why?
Mr. Saltzburg. Because we were truly in a traditional war
against nations, and those combatants who violated the laws of
war were seized largely in Germany and Japan and they were
prosecuted appropriately there where the evidence was. They
were prosecuted promptly. And I think that, looking back, we
can take a lot of pride in the way those proceedings were
conducted, and they were conducted, by the way, not only by us
but by our allies who joined together in saying this is the way
that justice should be done.
Mr. Sensenbrenner. Well, most of the evidence in terms of
the 9/11 plots was not in the United States and most of the
conspiracy was not in the United States. So if we are concerned
about a chain of evidence problem in a criminal trial in an
Article III court, how are you able to get the convictions if
you can't get the chain of evidence with the different rules of
evidence that are used in criminal trials?
Mr. Saltzburg. The Attorney General said that he had no
doubt that they had sufficient admissible evidence to convict
all five persons they had, perfectly capable of accounting for
the chain of evidence. Indeed, as I think Mr. Gohmert said,
they have admissible statements by the defendants admitting
their guilt, which were obtained in a courtroom in a process
which there is no doubt in my mind they will be admissible in
any tribunal. So we don't have a situation in which, because of
the way in which people were seized, that evidence that only
exists abroad and is necessary for a prosecution--we don't have
that situation here.
Mr. Sensenbrenner. Mr. Stimson, what is your view on that?
Mr. Stimson. I think it is speculative at best to suggest
that anyone in this room has seen all of the evidence that the
prosecution has at their disposal, evaluated in terms of
admissibility, and I have no doubt, having seen some of the
evidence myself, that there will be more evidence available to
the prosecutors in a military commissions context than in a
Federal court context. And more evidence is better than less
evidence.
Mr. Sensenbrenner. Ms. Hessler?
Ms. Hessler. I would agree. Certainly more evidence will be
allowed in the military commission.
Mr. Sensenbrenner. Thank you very much.
That concludes my questions.
I would like to thank all of the witnesses for their
testimony. It has all been very relevant and all probably had
to have been changed almost 180 degrees when the Attorney
General changed his position 180 degrees.
Let me say that I think that the Congress was representing
the American people when last Congress, which was under
different management than the House is under this Congress,
basically put the restrictions on closing Guantanamo, buying a
prison in Illinois, and trying KSM and his co-conspirators in
New York City. I think we now have gotten through all the
preliminaries on in what forum and where the trial will be
held. And I hope that there are no further delays by the
Government, and I include both the Defense and Justice
Departments in that hope so that these people will be placed on
trial. If they plead guilty, as they have done before, they can
be punished according to law, and I think we can come to
closure at least on this phase of 9/11.
So thank you again, and the hearing is adjourned without
objection.
[Whereupon, at 11:51 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record