[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

                              ----------                              

                             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

                              ----------                              


                         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.*
---------------------------------------------------------------------------
    *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
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
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.'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
   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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                             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:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    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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